The Basics of Techum Shabbos

Question #1: Camp sisters

“My sister’s family and ours are each spending Shavuos at nearby campsites. We were told that we could get together at a third spot between our two places for a Yom Tov barbecue. If we return on Yom Tov with the leftovers to our separate campsites, must we keep track of who brought which food?”

Question #2: Bungalow bar mitzvah

“A friend is making a bar mitzvah in a nearby bungalow colony. How far away can the colony still be within my techum Shabbos?”

Question #3: Eruv Techumin

“A lecturer will be speaking in the mountains not far from where I will be spending Shabbos. I was told that he will be just a bit beyond my techum Shabbos. Is there a way that I can go to hear him?”

Introduction:

In parshas Beshalach, the Torah recounts the story of the manna, also including the unbecoming episode where some people attempted to gather it on Shabbos. In the words of the Torah:

And Moshe said, “Eat it (the manna that remained from Friday) today, for today is Shabbos to Hashem. Today you will not find it (the manna) in the field. Six days you shall gather it, and the seventh day is Shabbos –there will be none.”

And it was on the seventh day. Some of the people went out to gather, and they did not find any.

And Hashem said to Moshe: “For how long will you refuse to observe My commandments and My teachings? See, Hashem gave you the Shabbos. For this reason, He provides you with a two-day supply of bread on the sixth day. Each person should remain where he is — no man should leave his place on the seventh day” (Shemos 16:25-29).

Staying in place

Although someone might interpret the words, Each person should remain where he is — no man should leave his place on the seventh day, to mean that it is forbidden even to leave one’s home, this is not what the Torah intends. According to Rabbi Akiva (Shabbos 153b; Sotah 27b; Sanhedrin 66a), the Torah, here, is indeed prohibiting walking beyond your “place” on Shabbos, although this proscription only prohibits walking more than 2000 amos (approximately half to two-thirds of a mile*) beyond the “locale” where you are spending Shabbos. This border beyond which it is forbidden to walk is called techum Shabbos, quite literally, the Shabbos boundary. How do we determine where this boundary is, beyond which I may not walk on Shabbos?

Some basic factors determine the extent and boundaries of one’s techum Shabbos. One is whether you are spending Shabbos within a residential area or not. I am going to present several options which will help explain how to determine someone’s techum Shabbos.

Our first case is someone spending Shabbos in a typical city, town or village where the houses are reasonably close together, meaning that the distance between the houses is 70 2/3 amos (about 105-120 feet*) or less. In this instance, one’s techum Shabbos is established by measuring the 2000 amos from the end of the city, town or village. The “end” of the city is determined, not by its municipal borders, but by where the houses are no longer within 70 2/3 amos of one another.

When two towns or cities are near one another, halachah will usually treat the two towns as one, provided that the houses of the two towns are within 141 1/3 amos of one another (Mishnah, Eruvin 57a). This is twice the distance of the 70 2/3 amos mentioned above. The details of the rules when and whether one combines two cities for determining techum Shabbos will be left for another time.

Techum Shabbos in a bungalow colony

Until now, we have discussed the techum Shabbos of someone spending Shabbos in a city. How far is the techum Shabbos of someone spending Shabbos in a resort hotel, side-of-the-road motel, or bungalow colony?

Someone spending Shabbos in a bungalow colony will have a techum that is at least 2000 amos beyond the last house of the colony. If there are other houses or bungalows within 70 2/3 amos of the residences of your colony, those houses or bungalows are included within your “place.” Under certain circumstances (beyond the scope of this article), they can be included within your “place” even if the houses or bungalows are within 141 1/3 amos of one another.

If the house, hotel or motel in which one is spending Shabbos is outside a city and more than 70 2/3 amos from any other residential building, one measures the techum Shabbos from the external walls of the house.

Shabbos while hiking

Someone spending Shabbos in an open field is entitled to four amos (between 6 – 7.5 feet*) as his “place,” and the 2000 amos are measured from beyond these four amos. His “place” is determined by where he is located at sundown on Friday evening.

Proper placement

We have now established that the definition of one’s “place” for techum Shabbos purposes depends substantively on whether one’s residence for Shabbos is indoors and on whether there are other residences nearby. We will now learn that although techum Shabbos is a boundary of 2000 amos, one usually has a greater distance in which one may walk. This is because techum Shabbos is always measured as a rectangular or square area. We take the four points that are the easternmost, the southernmost, the westernmost and the northernmost points of your “place,” and then draw an imaginery straight line that begins at 2000 amos beyond each of these points. In other words, we will measure 2000 amos east of the easternmost point and draw an imaginery north-south line at that point. We will similarly measure 2000 amos north of the northernmost point and draw there an imaginery east-west line. We repeat this for the other two directions of the compass. The result is a rectangle (or perhaps a square) whose four closest points are each 2000 amos distant from your “place.” Obviously, this means that the techum Shabbos area is significantly larger than 2000 amos beyond one’s “place.” This establishes the techum within which one is permitted to travel on Shabbos. By the way, all the rules of the laws of techum apply on Yom Tov as well.

Property placement

One of the interesting and lesser-known details of the laws of techum Shabbos is that possessions are also bound by the laws of techum Shabbos. This means that my possessions cannot be transported on Shabbos beyond the area in which I myself can walk. This halachah is not usually germane to the laws of Shabbos, since, in any instance, it is forbidden to carry on Shabbos outside of an enclosed area. The halachah is therefore more germane on Yom Tov, when one is permitted to carry. For this reason, the discussion of these laws is in mesechta Beitzah, which deals with the laws of Yom Tov. This subject is one of the main topics of the fifth chapter of the mesechta.

Camp sisters

At this point, we can discuss our opening question: “My sister’s family and ours are each spending Shavuos at nearby campsites. We were told that we could get together at a third spot between our two places for a Yom Tov barbecue. If we return on Yom Tov with the leftovers to our separate campsites, must we keep track of who brought which food?”

These two families are spending Yom Tov in locations that have different techumin, yet they are close enough that there is some overlapping area located within both of their techumin. Each family may walk on Yom Tov to this overlapping area, carrying the items necessary for the barbecue. Everyone must be careful not to walk beyond the area of his own techum. In addition, since the items used for the barbecue were owned by one or the other of the families when Yom Tov started, each item may not be removed beyond its owner’s techum until Yom Tov is over. Thus, if one sister brought the hotdogs or the paper plates, the other sister may not take those items back with her, if she will be removing them to a place beyond her sister’s techum.

Min hatorah or miderabbanan?

The rules of techumin that I have so far presented are held universally. However, there is a major dispute whether these rules are min hatorah or miderabbanan. There are three basic opinions. The tanna Rabbi Akiva, mentioned above, rules that the Torah forbade walking on Shabbos more than 2000 amos from one’s place, as we previously defined it. The Sages who disagreed with Rabbi Akiva contend that the prohibition of traveling 2000 amos is only miderabbanan. (Whether Rabbi Akiva held that the rules of techumin on Yom Tov [as opposed to Shabbos] are prohibited min hatorah or only miderabbanan is a dispute among rishonim; see Rashi, Tosafos, and Turei Even, Chagigah 17b.) However, there is a further dispute whether the Sages contend that there is no prohibition of techumin min hatorah at all, and the prohibition is always only miderabbanan, or whether the basis for the prohibition is min hatorah. According to the Talmud Yerushalmi (Eruvin 3:4), traveling more than 12 mil, which is the equivalent of 24,000 amos (approximately 6 – 8.5 miles*), is prohibited min hatorah. This last position is quoted by the Rif (end of the first chapter of Eruvin). Several rishonim rule according to this Yerushalmi (Rambam, Hilchos Shabbos 27:1 and Sefer Hamitzvos, Lo Saaseh #321; Semag (Lo Saaseh 36); Sefer Hachinuch, Mitzvah #24). On the other hand, many rishonim (e.g., Baal Hamaor, Milchemes Hashem, and Rosh, all at the end of the first chapter of Eruvin; Ramban’s notes to Sefer Hamitzvos, Lo Saaseh #321; Tosafos, Chagigah 17b s.v. Dichsiv) contend that the Bavli disagrees with this Yerushalmi and holds that the concept of techum Shabbos is completely miderabbanan, and that the halachah follows the Bavli, as it usually does.

A nice-sized place

Six miles sounds like a distance considerably more than I would walk on a Shabbos. From where did the Yerushalmi get this measurement?

The basis for this distance is the encampment of the Benei Yisrael while in the Desert, which occupied an area that was 12 mil by 12 mil. Thus, when the Torah told each Israelite not to leave his “place,” it prohibited walking outside an area this size (Tosafos, Chagigah 17b s.v. Dichsiv). According to the Talmud Yerushalmi, no matter when and where one is spending Shabbos, one draws a square or rectangle 12 mil by 12 mil around one’s city, colony or campground and this area is considered your “place.” Beyond this area, the Torah prohibited you to walk, according to the Yerushalmi.

Although it is anyway prohibited to walk beyond one’s 2000 amos techum on Shabbos and Yom Tov because of the rabbinic ruling of techumin, there are some practical instances where the question of whether there is a Torah-mandated techum of 12 mil becomes germane. For example, the Gemara (Eruvin 43a) discusses whether the prohibition of techumin applies when one is more than ten tefachim above ground level, called yesh techumin lemaalah miyud or ein techumin lemaalah miyud. An example of this case, quoted by the poskim, is a situation in which someone wants to walk quite a distance on Shabbos atop narrow stands or poles that are all more than ten tefachim above ground. If one rules that there is no law of techumin above ten tefachim, ein techumin lemaalah miyud, then it is permitted to travel this way on Shabbos, no matter how far one goes. On the other hand, if there is a law of techumin above ten tefachim, it is prohibited to travel this way.

This question is raised by the Gemara, which does not reach a definite conclusion (Eruvin 43a). Both the Shulchan Aruch and the Rema (Orach Chayim 404:1) rule that one may travel lemaalah miyud for a distance greater than 2000 amos,because one may be lenient in a doubt regarding the rabbinic prohibition of techum Shabbos. However, since traveling 12 mil is prohibited min hatorah according to those authorities who rule like the Yerushalmi, one should be stringent not to travel lemaalah miyud for a distance of 12 mil or farther.The Gra, however,rules that one may disregard the opinion of the Yerushalmi and the ruling of the Rambam, because the halachah follows the Bavli that there is no prohibition of techum at all min hatorah. Since the prohibition of techumin is always miderabbanan, one may be lenient to rule that ein techumin lamaaleh miyud. A contemporary application of these opinions is if someone was on an airplane when Shabbos began (for example, because of a life-threatening emergency), would he be permitted, upon landing, to leave the airport terminal before Shabbos ends.

How do we rule?

Regarding the dispute between Rabbi Akiva and the Sages whether the requirement of remaining within a techum of 2000 amos is min hatorah or miderabbanan, it is universally accepted that we follow the opinion of the Sages that techum Shabbos of 2000 amos is miderabbanan. A result of this ruling is that if someone needs to use comfort facilities and there are none available within his techum, he is permitted to leave his techum for this purpose, because of the rule that kovod haberiyos, human dignity, supersedes a rabbinic prohibition (Eruvin 41b, based on Berachos 19b).

Moving my techum Shabbos

“A lecturer will be speaking in the mountains not far from where I will be spending Shabbos. I was told that he will be just a bit beyond my techum Shabbos. Is there a way that I can go to hear him?”

The answer is that one certainly can, by creating an eruv techumin. This halachic entity allows me to move the “place” from where we measure my techum Shabbos. Ordinarily, my techum Shabbos is measured from where I am when Shabbos starts. However, when I make an eruv techumin, I move my “place” to the location of the eruv. If my eruv is placed such that both locations — where I am when Shabbos begins and where the speech will be delivered — are within its techum Shabbos, I may go hear the speaker.

But be careful. Creating an eruv techumin is not only a leniency, it also creates a stringency. Since I cannot be in two different “places,” when I use an eruv techumin, I have moved my techum Shabbos, not expanded it. Although I gain in the new direction, I lose the full techum I would have had in my actual location.

In this way, eruv techumin is different from the other two types of eruvin, eruv tavshillin made when Yom Tov falls on Friday, and eruv chatzeiros, which is made so that I can carry between two adjacent, enclosed properties that are owned by different people. The other two eruvin create leniencies but have no attached stringencies. For this reason, the other two eruvin can be made for someone who does not know that the eruv is being made, since it provides him with benefits and no liabilities. However, since an eruv techumin includes liabilities, one cannot make an eruv techumin for someone who does not want it or who does not know about it (Mishnah, Eruvin 81; Shulchan Aruch, Orach Chayim 414:1).

Only for a mitzvah

There is another major difference between eruv techumin and the other two types of eruvin. One may use an eruv techumin only if there is a mitzvah reason to walk where it would otherwise be outside one’s techum (Eruvin 31a, 82a; Shulchan Aruch, Orach Chayim 415:1). For example, someone who wants to hear a shiur or attend a sheva berachos may use an eruv techumin to do so. On the other hand, one may make and use either an eruv tavshillin or an eruv chatzeiros even if there is no mitzvah reason to do so.

How do I make an eruv techumin?

To make an eruv techumin, one puts some food before Shabbos where you want your “place” for Shabbos to be. There must be enough food there so that each person who wants to use the eruv techumin could eat two meals. If one uses a condiment for an eruv, one needs to have enough so that each person who wants to use the eruv would have enough condiment for two meals. One recites a berocha asher kiddeshanu bemitzvosav vetzivanu al mitzvas eruv, and then makes a declaration that this is his eruv to permit him to walk in this direction.

Since this food will basically be left exposed to the elements and animals, many people use a bucket of saltwater, which qualifies as an eruv techumin. Note that saltwater does not qualify for the other two types of eruv, eruv chatzeiros and eruv tavshillin. Another popular option is to use a jar of peanut butter.

Because there are many complicated laws about eruvin that are beyond the scope of this article, I suggest that someone who needs an eruv techumin should consult with his rav or posek.

Who instituted eruv techumin?

The Gemara teaches that Shelomoh Hamelech instituted eruvin (Eruvin 21b). We find a dispute as to which type of eruv the Gemara is referring to. Rav Hai Gaon (Teshuvos Hageonim #44) explains that Shlomoh Hamelech instituted eruv techumin, whereas Rashi (Eruvin 21b) and the Rambam (Hilchos Eruvin 1:2) explain that he instituted eruv chatzeiros.

Conclusion

The Gemara teaches that the rabbinic laws are dearer to Hashem than the Torah laws. In this context, we can explain these mitzvos, created by Chazal to guarantee that the Jewish people remember the message of Shabbos.

* All measurements in this article are meant for illustration only. For exact figures, consult your rav or posek.

Pure Gold and Copper

Question #1: Nickel and Platinum

As far as the laws of tumah and taharah are concerned, what is the halachic status of metals that have been discovered and isolated since the times of Chazal, which include zinc, chromium, manganese, nickel, magnesium, platinum, aluminum, titanium and many others?

Question #2: Pure Gold Bells

In this week’s parsha, the Torah describes the bells that are attached to the robe (me’il) worn by the kohein gadol. These bells were made so that their sound should be heard when the kohein gadol enters the Sanctuary (Shemos 25:35). A bell made of 100% gold will not ring because the metal is too soft. For a gold bell to ring, it must be an alloy including a small percentage of a different metal. So, how can the Torah say in Parshas Pikudei that the bells were made from “zahav tahor,” pure gold?

Question #3:

At the time of the Korach rebellion, when 250 individuals offered incense, the Torah (Bamidbar 16:17-18) does not describe what metal they used for their censers, their coal pans. However, later (Bamidbar 17:4) the Torah tells us that they were made of nechoshes, which usually means “copper,” although I have seen translations that render it “bronze.” Does it make a halachic difference whether they were made from copper or from bronze?

What is the difference between bronze, brass and copper?

Copper is an element, with an atomic number of 29, meaning that every copper atom has 29 protons. Various other metals, such as tin, zinc or nickel, can be added to copper to create alloys with somewhat different properties than pure copper. In our world, one of the primary uses of copper is for electric wiring, since it is an excellent conductor of heat and electricity, and, for this use, pure copper filament is used. However, when using copper in most other applications, other metals are added to the copper, which gives it qualities useful for the desired application.

Both bronze, an alloy of predominantly copper with some tin, and brass, an alloy of copper and zinc, are treated halachically as copper, since the Mishnah implies that an alloy would be treated as its majority constituent (Keilim 11:4). Those who translate the word nechoshes in the context of the coal pans as “bronze” assume that the copper would have been alloyed to increase its strength and heat resistance and to decrease its malleability. Tin, the usual other major component of bronze, is also an element, with the atomic number of 50. Tin has been known since antiquity, and has been used both in relatively pure form and in alloys of bronze for thousands of years. Brass is a naturally occurring alloy of copper and zinc, and has been used for over two thousand years. Only about three hundred years ago was zinc isolated and recognized as a separate metal with an atomic number of 30. Different types of brass vary in the ratio of copper to zinc, and may have other elements, such as arsenic or antimony, added. It is also possible, but rare, that the brass contains more zinc than copper.

Since bronze is predominantly copper and had already been developed and commonly used by the era of Yetzias Mitzrayim, there seems to be nothing wrong with assuming that nechoshes in connection with the mishkan and other references in the Torah means bronze, rather than pure copper. Nevertheless, since we usually translate nechoshes as copper, that is the way I am going to translate it.

At the time of the giving of the Torah, six metals were in common usage: gold, silver, copper, iron, tin and lead (see Bamidbar 31:22). There, the context is kashering used equipment made from these metals before they may be treated as kosher, and Chazal also derive the requirement to immerse food equipment made from these metals that was previously owned by non-Jews (Avodah Zarah 75b).

As we know from the Mishnah and the Gemara (fourth chapter of Bava Metzia), gold, silver and copper have been used as currencies for millennia. Copper, the least valuable of the three, was used for smaller valued coins (think of pennies) whereas silver was used for higher valued coins (think of dimes, quarters and dollars). (I will allow you to imagine which metal is the major component of a nickel.) In the days before paper money and electronic transfers, large transactions required gold coins. This is very different from the contemporary gold coins, which are used as investment and collectors’ items, not as currency. Today, even the coins that were traditionally minted from silver and copper are predominantly composed of base metals of lesser value, so that the coin does not contain the metallic equivalent of its face value. (During the development of modern Europe, governments regularly debased their currencies of gold, silver and copper as an early means of “minting more currency,” with which to meet their military budgets.)

Metals in the Mishkan

The Mishkan and the Beis Hamikdash predominantly required use of the more valuable metals, gold and silver, but copper did have its place. It was used mainly for the kiyor, the laver or sink used by the kohanim to wash their hands and feet prior to performing the avodah, for the base of the wooden walls of the Mishkan, for the sides and utensils of the mizbeiach, the stand of the kiyor, and as hooks, overlay, and trim on various vessels.

Categories of vessels

Prior to addressing our opening questions, I need to explain some principles of tumah and taharah. Whether utensils are susceptible to tumah depends on the material from which they are made; some materials can become tamei and others cannot. Most items made of wood, cloth, earthenware, metal, leather or bone can contract tumah; items made of unfired earth or stone usually cannot.

Recycling

One of the qualities of metals is that they are fully recyclable. Metal can be melted down to create new items, and there is usually no quality lost by reusing metal rather than using freshly mined material. In this aspect, metal had a unique quality over most materials that were available in the ancient world, such as leather, stone, brick, wood or earthenware, none of which are recyclable in the same way.

There is even a halachic advantage to reprocessing metal. Should a metal utensil become tamei, melting it down or breaking it until it can no longer be used makes the metal tahor, min haTorah, since only utensils are capable of being tamei.

At one point, this led to a concern: There are two ways to remove tumah from a tamei utensil. One is by immersing it in a mikveh or spring, after which we need to wait until nightfall for the utensil to become tahor. (If a utensil became tamei meis by contact with a corpse, a week’s time must transpire within which the utensil must be sprinkled on two different days with spring water containing ashes of the parah adumah, before immersion in a mikveh or spring can render it tahor.)

The second method of making a tamei utensil tahor is by breaking or melting it so that it is no longer serviceable as a utensil, then having a smith repair or manufacture it into a new utensil. Min haTorah, this latter method immediately makes the utensil tahor (i.e., one does not have to wait until nightfall). However, this led to a problem (Shabbos 16b): According to Abayei, the concern was that people may not break the utensil sufficiently. According to Rava, the concern was that people may confuse the laws of tevillah with the laws of breakage and forget that one needs to wait until nightfall after tevillah to use them. Both amora’im agree that there is a concern that people will treat the utensil as tahor when it is still tamei.

To avoid this problem, Chazal established a rule that a metal utensil that was tamei, was broken to make it tahor, and was then manufactured into a new utensil becomes tamei again. This takanah is called tumah yeshanah, which I will translate as tumah revisited.

Glass

The first fully recyclable, non-metallic material discovered by mankind was glass. Broken glass can be melted down, shaped and cooled into new appliances in a process somewhat similar to metals. Since glass and metal share this quality, Chazal included glass in the category of items that can become tamei (Shabbos 16a). We will soon see that later authorities disputed whether other materials that can be recycled this way, such as some plastics, are miderabbanan also treated like metal items, or whether this ruling is unique to glass.

Tevillas Keilim

The Gemara (Avodah Zarah 75b) quotes Rav Ashi that, in addition to the requirement to toveil metal items that are intended for food use and that came from a non-Jew, we are also required to immerse glass dishes, for the same reason mentioned above — glass is recyclable by melting and reconstructing.

New metals

At this point, let us address our opening question: What is the halachic status, germane to the laws of tumah and taharah, of metals that have been discovered and isolated since the times of Chazal, which include zinc, chromium, manganese, nickel, magnesium, platinum, aluminum, titanium and many others?

There are differing approaches among later authorities regarding how halacha views these “new” metals, which results in different opinions regarding the laws of tumah and the laws of immersing utensils:

1. All metals have the same halachic status min haTorah as the six metals mentioned in Chumash (Yevakeish Daas of the Tiferes Yisrael, #44).

2. Any item that is recyclable is mekabeil tumah and requires tevillas keilim miderabbanan (Shu’t Ohel Avraham #24).

3. Only the six types of metal that the Torah mentions become tamei, and not any of the newly discovered ones. This position is suggested by Rav Moshe Feinstein (Shu’t Igros Moshe, Yoreh Deah 2:164) and by Rav Yaakov Kaminetzky (Sefer Tevillas Keilim,page 243). Shu’t Melamed Leho’il specifically concludes that, among recyclable materials, only glass is required to be treated like metal, because this is the only instance in which Chazal created this ruling. In other words, the fact that another material now exists that is also recyclable, like the six metals of the Torah and glassware, does not mean that this material is susceptible to tumah or requires tevillas keilim.

Because of the dispute between the Ohel Avraham,mentioned above, and the Melamed Leho’il, some authorities rule that utensils used for food and made from a recyclable material other than the six stated in the Torah and glass should be immersed, but without a brocha (Shu’t Minchas Yitzchak 3:76, 77, 78; 4:114:4).

Majority of alloy

As we noted above, the Mishnah proves that an alloy’s halacha follows a majority of its composition, so this dispute between the Ohel Avraham and the Melamed Leho’il will not affect the halachic status of bronze, pewter or steel. Steel is predominantly iron, and pewter is predominantly tin; therefore, items manufactured from these alloys are mekabeil tumah and require tevillas keilim min haTorah. It would affect the unusual variety of brass in which the copper component is less in volume than the zinc and other components. (Copper is slightly lighter than zinc, so a brass item made of 50-50 copper and zinc by weight, actually contains more copper than zinc by volume.)

Tumah of metals

According to many authorities, metals have a special status relative to the laws of tumah, which requires an introduction. In general, the highest level of tumah anything can ever become is called av hatumah, which should be translated as main category (or level) of tumah. There is one level of tumah, that of a meis, which makes other items into an av hatumah. For this reason, Rashi (Pesachim 14b and 17a; Bava Kama 2a) refers to a meis as avi avos hatumah, or super-category of tumah.

Swords

The Gemara (Pesachim 14b; Nazir 53b) teaches a principle call cherev harei hu ke’chalal,which means that, although usually only a meis can have the halachic category of being an avi avos hatumah, a vessel that touched a meis may also have this level of tumah. There are three major opinions among rishonim as to which types of utensils can have this law.

1. Those who rule that the principle of cherev harei hu ke’chalal applies only to metal utensils (Rashi, Shabbos 101b; Pesachim 14b and 97a; Rabbeinu Chananel, Pesachim 14b; Tosafos, Nazir 53b and 54b; Rabbeinu Tam, quoted by Tosafos, Bava Kama 2b). We should note that which metals are now included in this ruling will depend on the dispute among acharonim I quoted above as to whether newly discovered metals are mekabel tumah min haTorah, miderabbanan or not at all.

2. Those who rule that the principle of cherev harei hu ke’chalal applies to all utensils that can become tamei and subsequently made tahor through immersion in a mikveh or spring (Rambam, Hilchos Tumas Meis 5:3; Rabbi Yitzchak ben Malki Tzedek, cited in Rash, Ohalos 1:2; Bartenura and Eliyahu Rabbah, Ohalos 1:2).

3. Those who understand the Mishnah and Gemara of cherev harei hu ke’chalal in a different way, concluding that utensils can never become avi avos hatumah (Raavad, Hilchos Tumas Meis 5:3).

Pure gold

So far, we have been discussing, predominantly, copper, other less precious metals, and their alloys. At this point, I want to discuss the second of our opening questions, concerning gold alloys: A bell made of 100% gold will not ring because the metal is too soft. For a gold bell to ring, it must be an alloy including a small percentage of a different metal. So, how can the Torah say that the bells were manufactured from “pure gold.”

The questioner here, a frum and Torah-knowledgeable metallurgist, assumed that a statement that something is made of zahav tahor, “pure gold,” means that there is no alloy of other metals. He understood that the gold used for the bells must have been an alloy containing a small percentage of another metal, which would have the desired properties of both strength and resonance. This would allow the bells to produce a ringing sound when the kohein gadol walked, fulfilling their purpose as bells.

Let me explain his question a bit more:

Most gold vessels and garments of the Mishkan required that they be made of zahav tahor (see Shemos 25:11, 17, 24, 29, 31, 38; 28:14, 22, 36; 30:3). However, the two rings of the choshen are described only as zahav, omitting the word tahor (Shemos 28:23); similarly, the gold thread is not described as tahor (28:15), nor are the two rings manufactured along the sides of the mizbeiach hazahav (30:4), nor the gold overlay of the poles that carry the mizbeiach (30:5). These references might indicate that when the Torah requires “gold,” but does not specify “zahav tahor,” that it is not 100% gold, but a gold alloy that is more suitable for use as a thread, or carrying ring or pole.

Golden bells

When Betzalel and his assistants manufactured the bells attached to the hem of the kohein gadol’s garment, the Torah says that he made them from “pure gold” (Shemos 39:25). However, in parshas Tetzaveh (Shemos 28, 33), where we are commanded about the manufacture of these bells, the Torah states simply that they are made of gold, omitting the word tahor. Thus, we have a conundrum: the Torah does not require that the bells be manufactured of zahav tahor, yet Betzalel made them that way. Regarding all the other items manufactured for the Mishkan, when the mitzvah stated to make them from zahav and not necessarily zahav tahor, no mention is made that Betzalel and his assistants manufactured them from zahav tahor!

The answer is that the term “pure/tahor” gold may mean that it is 100% gold, or it might mean that the gold is tahor, meaning that it is not tamei. Bells made for jewelry or as a tassel hanging from the hem of a garment are not considered utensils, and therefore cannot become tamei. Thus, there would be no need to manufacture them from tahor gold. Only when they are manufactured to ring and, therefore, they contain a clapper, are they susceptible to tumah, in which case it is important to note that they are tahor and not tamei. When we are commanded to make them, the Torah emphasized that these bells can ring – which means that they are potentially susceptible to tumah. It is thus understood that they must have been made tahor. At the time of their manufacture, we need to be reminded that they must be made tahor, since they are susceptible to tumah (Meshech Chachmah, Shemos 39:25). Thus, the reference to their being “pure” does not mean that they were 100% gold. They needed to be an alloy that has some added other metal so that they will ring.

Conclusion

Among the various mitzvos dealt with in this article is the mitzvah requiring that we immerse our food utensils prior to use. This tevillah elevates their sanctity, so that they can now be used for a Jew’s table. Thus, not only food that a Jew eats requires special care, but also the equipment with which he prepares that food.

Twilight

Question #1: Why then?

“After sunset on a Friday evening, may I ask a non-Jewish person to turn on the lights?”

Question #2: Until when?

“May I toivel dishes, glasses and silverware during the same twilight period?”

Question #3: Challah

“May I separate challah during bein hashemashos?”

Introduction: Twilight laws

As we are all aware, the halachic day begins and ends at nightfall. But at what exact moment does one day march off into history and its successor arrive with its banner unfurled? Is it before sunset, at sunset, when the stars appear, or dependent on some other factor? And, if a day begins when the stars appear, which stars and how many? Does the amount of time after sunset vary according to longitude and/or season of the year? And does it, perhaps, vary according to the amount of humidity in the atmosphere?

There is much discussion in the Gemara and the poskim concerning many of these issues, some of which I have written about previously. This article will discuss the halachic rules that apply during the period of time called bein hashemashos, which is the term used to refer to the twilight interval when we are uncertain whether it is still day or already night. Of particular concern is what is the halacha of this time on Friday evening, when it is unclear whether or not Shabbos has already begun. Does bein hashemashos have the exact same halachic status as the time that is definitely Shabbos, or does its questionable status allow any lenience? The answer is that, under extenuating circumstances, some lenience is allowed. We will see that the definition of “extenuating” for these purposes is rather moderate.

The earliest sources

In several places, the Mishnah, the Gemara and the poskim explain that certain activities that are prohibited on Shabbos are permitted during bein hashemashos of Friday evening. We will begin our research with a Mishnah (Shabbos 34a) that many recite every Friday evening in shul, as the last passage in Bameh Madlikin. There, it teaches: If it is in doubt whether nightfall has already arrived, it is forbidden to separate maaser from produce, when we are certain that it was not yet separated. (Such untithed produce is referred to as tevel.) It is also prohibited to immerse vessels to make them tahor. (Unfortunately, since we are all tamei today, this question is not relevant, but we will soon discuss whether immersing vessels used for food that were previously owned by a non-Jew is permitted during bein hashemashos.) The Mishnah also prohibits kindling lights during bein hashemashos. However, it permits separating maaser from demai produce, about which it is uncertain whether this separation is required. It is permitted during bein hashemashos to make an eiruv chatzeiros, which allows carrying from one’s house to a neighbor’s house on Shabbos. The Mishnah also permits insulating food, hatmanah, using something that does not increase heat (such as clothing), notwithstanding that this is prohibited on Shabbos.

As we will see shortly, there is much discussion among rishonim and early poskim whether we rule according to the conclusions of this Mishnah, or whether we rule more leniently. But first, we need to understand each of the halachic issues that the Mishnah mentions. For example, what is wrong with separating maasros, even on Shabbos itself? Which melacha of Shabbos does this violate?

Maasering

The Mishnah (Beitzah 36b) prohibits separating maasros on Yom Tov, and certainly on Shabbos. The reason for this prohibition is that, since it makes the food edible halachically, it is viewed as a form of forbidden “repair work.”

Demai has an in-between status. What is demai? In the times of Chazal, observant but poorly educated Jews observed the mitzvos, although some of them would occasionally “cut corners,” violating details of halachos that involve major expense. These people, called amei ha’aretz, were lax predominantly regarding three areas of halacha –the laws of shemittah, the laws of tumah and taharah, and the laws of separating maasros. Although most amei ha’aretz indeed separated maasros faithfully, Chazal instituted that produce purchased from an am ha’aratz should have maaser separated from it, albeit without first reciting the brocha for taking maaser. This produce was called demai, and the institution of this takkanah was because it was difficult to ascertain which amei ha’aretz were separating maasros and which were not. Thus, we treat this produce as a type of safek tevel. For this reason, the brocha for separating maasros was omitted prior to separating maaser from demai because, indeed, most amei ha’aretz separated maasros. In addition, because most amei ha’aretz separated maasros, Chazal allowed other leniencies pertaining to its use; for example, they permitted serving demai produce to the poor or to soldiers in the army.

Because there is a great deal of reason to be lenient relative to demai, the Mishnah permitted separating maasros from it during bein hashemashos (Shabbos 34a). The reason this is permitted is because this separation may not actually be “fixing” anything – it is more than likely that the maasros were already separated.

Immersing utensils

During bein hashemashos, the Mishnah permitted immersing vessels and other items that had previously become tamei. This immersion is prohibited on Shabbos or Yom Tov, itself, as mentioned in Mesechta Beitzah (Mishnah 17b and Gemara ad loc.). There, the Gemara (Beitzah 18a) cites a four-way dispute why it is prohibited to immerse vessels to make them tahor on Shabbos or Yom Tov. The four reasons are:

1. Someone immersing vessels on Shabbos may inadvertently carry them through a public area. According to this opinion, immersing vessels on Yom Tov was prohibited as an extension of the prohibition of Shabbos.

2. Clothing and cloth that became tamei, and was then toiveled on Shabbos or Yom Tov, could cause someone to squeeze out the water. According to this opinion, immersing pots, plates, silverware and other items that do not absorb water was prohibited as an extension of the prohibition to immerse cloth and other squeezable items.

3. Knowing that someone has time to toivel vessels on Shabbos or Yom Tov, the owner might delay toiveling them until then. This procrastination might then result in foods or other vessels becoming tamei. Banning the immersions on Shabbos or Yom Tov would cause people to immerse the vessels at an earlier opportunity.

4. Immersing vessels to make them usable is considered “repairing” them on Shabbos or Yom Tov.

The rishonim disagree how we rule in this dispute: in other words, which of the four reasons is accepted (see Rif, Rosh, etc.). There are halachic ramifications of this dispute. Although immersing vessels to make them tahor is not a germane topic today, since we are all tamei anyway, the question is raised whether vessels acquired from a non-Jew, which require immersion in a mikveh prior to use, may be immersed on Shabbos and Yom Tov. When we look at the reasons mentioned by the Gemara why Chazal forbade immersing tamei vessels on Shabbos and Yom Tov, we can conclude that some of the reasons should definitely apply to the immersing of vessels for this latter reason, whereas others might not. The Rosh concludes that it is prohibited on Shabbos and Yom Tov to immerse vessels acquired from a non-Jew. (See, however, Shaagas Aryeh #56.) We will discuss shortly whether one can immerse them during bein hashemashos.

Kindling lights

During bein hashemashos, any Torah prohibition cannot be performed because of safek de’oraysa lechumrah, the rule that cases of doubt regarding Torah prohibitions are treated stringently. The Mishnah’s example of this is kindling lights, which is certainly forbidden during bein hashemashos.

Hatmanah — Insulating food

The Gemara explains that the Mishnah’s last ruling, insulating food, is permitted bein hashemashos because of a specific reason applicable only to its case. Since explaining the details of this rabbinic injunction, called hatmanah, would take us far afield, we will forgo that discussion in this article.


Rebbe and the Rabbanan

Up until this point, I have been explaining the Mishnah in Bameh Madlikin. However, elsewhere, the Gemara (Eruvin 32b) cites a dispute between Rebbe and the Rabbanan, in which Rebbe contends that all rabbinic prohibitions may be performed during the bein hashemashos period, whereas the Rabbanan prohibit this. The obvious reading of the Mishnah in Bameh Madlikin is that it follows the approach of the Rabbanan who prohibit performing most rabbinically prohibited acts during the bein hashemashos period, and, indeed, this is how Rashi explains that Mishnah. However, the Gemara (Eruvin 32b-34b) demonstrates that the Mishnah there in Eruvin follows the opinion of Rebbe. On its own, this is not a halachic concern, since there are instances in which different Mishnayos follow the opinions of different tana’im. The practical question that needs to be decided is whether we indeed rule according to the Rabbanan’s position as stated in the Mishnah in Bameh Madlikin, or whether we follow Rebbe’s more lenient ruling. The conclusion of the Gemara in Eruvin implies that the halacha follows the opinion of Rebbe, and not that of the Rabbanan.

Among the rishonim, we find variant halachic conclusions regarding this question (Rashi, Shabbos 34a s.v. safek; Rambam, Hilchos Shabbos 24:10 and Hilchos Eruvin 6:9; Tur Orach Chayim 342; Beis Yosef Orach Chayim 261 and 342). The Shulchan Aruch (Orach Chayim 342) concludes according to the Rambam’s opinion, ruling that during bein hashemashos Chazal did not forbid anything that is prohibited because of a rabbinic injunction, provided that there is some mitzvah involved or that there were extenuating reasons why it was not performed on erev Shabbos. The Shulchan Aruch mentions, specifically, that it is permitted during bein hashemashos to climb a tree on Rosh Hashanah to get a shofar in order to perform the mitzvah, although it is prohibited to climb a tree on Yom Tov itself even if, as a result, you will be unable to blow shofar. Returning to our first question (“After sunset on a Friday evening, may I ask a non-Jewish person to turn on the lights?”, the Shulchan Aruch also permits asking a non-Jew to kindle a light during bein hashemashos. The Mishnah Berurah 261:17 permits asking him, even if you already accepted Shabbos.

Similarly, the Magen Avraham (261:6) permits separating maasros during bein hashemashos, if you do not have enough food ready for Shabbos. (The Ketzos Hashulchan [75:5, 6 in Badei Hashulchan] explains that the situation is such that he does not have enough fruit or vegetables to have an enjoyable Shabbos meal.) It is very interesting that the Magen Avraham permits this, because the Mishnah at the end of Bameh Madlikin thatwe quoted above expressly prohibits separating maasros during bein hashemashos. Nevertheless, the Magen Avraham permits this separating of maasros, since we rule according to Rebbe, not like the Mishnah.

Toiveling during bein hashemashos

With this background, let us examine the second of our opening questions: is it permitted during the bein hashemashos period to toivel dishes, glasses and silverware purchased from a non-Jew? Assuming we conclude, like the Rosh does, that it is prohibited to toivel these items on Shabbos or Yom Tov, which is the common practice, someone who has no others to use on Shabbos or Yom Tov may toivel them during bein hashemashos (Magen Avraham 261:6).

Separating challah

There is much discussion among halachic authorities whether it is permitted to separate challah during bein hashemashos, if you realize that you forgot to do so before. As we will see shortly, the Magen Avraham (261:2) prohibits separating challah bein hashemashos, whereas other authorities qualify this. To explain their halachic conclusions, we need to provide some background to the laws of separating challah.

Although people are often surprised to discover this, challah is categorized under the mitzvos ha’teluyos ba’aretz, the agricultural mitzvos that apply min haTorah only in Eretz Yisroel. The requirement of separating challah from dough made in chutz la’aretz is a rabbinic requirement. However, when implementing this requirement, Chazal instructed that the mitzvah be performed in a different way from how it is observed in Eretz Yisroel. Dough made in Eretz Yisroel that has not yet had its challah portion separated has the halachic status of tevel and may not be eaten. Dough made in chutz la’aretz does not become tevel. There is a mitzvah to separate challah, but this mitzvah can be fulfilled even after most of the dough has been eaten.

Therefore, should one realize on Shabbos that challah was not separated from dough made in Eretz Yisroel, the bread cannot be eaten because it is tevel. However, if the dough was made in chutz la’aretz, the bread can be eaten on Shabbos, and the challah separated after Shabbos. To do this, you must make sure that you keep some of the bread until after Shabbos, and then separate challah from what was set aside.

Reverse the law

The result of this halacha is that dough produced in chutz la’aretz does not require that its challah is separated in order to permit eating it on Shabbos, whereas dough produced in Eretz Yisroel does. We therefore have an anomalous conclusion regarding whether the challah may be separated during bein hashemashos. Challah may not be separated from dough made in chutz la’aretz, because you can wait to separate the challah until after Shabbos. The later authorities explain that this is the intention of the ruling of the Magen Avraham (261:2). However, when the dough was prepared in Eretz Yisroel and challah was not taken, it will be forbidden to eat the bread on Shabbos. Therefore, when you realize that you forgot to separate challah, and you are relying on that bread for your Shabbos meals, you may separate the challah during bein hashemashos (Machatzis Hashekel 261:2; Pri Megadim, Eishel Avraham 261:2; Mishnah Berurah 261:4).

We can now address the third of our opening questions: “May I separate challah during bein hashemashos?” The answer is that if the dough was mixed in chutz la’aretz, I may not, but I may eat the baked bread during Shabbos, as long as I leave some of it for after Shabbos and then separate challah retroactively. On the other hand, if the dough was made in Eretz Yisroel, I may therefore not eat it without first separating challah, and I may separate the challah during bein hashemashos.

In conclusion

The Gemara teaches that the rabbinic laws are dearer to Hashem than the Torah laws. In this instance, we see that Chazal provided lenience to permit otherwise prohibited activities to be done during the bein hashemashos period.

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos, in order for it to be a day of rest. He points out that the Torah does not prohibit doing avodah, which connotes hard work, but melachah, activities or actions which bring purpose and accomplishment. Shabbos is the day on which we refrain from constructing and altering the world for our own purposes. The goal of Shabbos is to allow Hashem’s rule to be the focus of creation, by refraining from our own creative acts (Shemos 20:11).

Jewish Judges and Police

Question #1: Beis din

What is the role of beis din in Jewish life?

Question #2: Police protection

In a community that is run completely according to halacha, who is in charge of appointing and overseeing the police force?

Introduction:

Parshas Mishpatim is the primary parsha regarding halachic civil law, and Parshas Shoftim begins with a mitzvah to appoint shoftim, judges, or as we usually call them dayanim (singular dayan), and shoterim (singular shoteir), enforcement officers, bailiffs or police. The Torah states that you must appoint judges and police in all your “gates,” meaning in all your cities.

Rashi quotes the passage of Gemara (Sanhedrin 16b) that there is a requirement min haTorah to appoint judges in every city and for every tribe. We need to clarify a point: If a beis din is appointed for every city, what is added by appointing a beis din for every sheivet?

The rishonim already address this issue. According to Tosafos (Sanhedrin 16b s.v. Shoftim), the Gemara is teaching that if the border separating two shevatim divides a city between them, the two sections should each have its own beis din. The Ramban (beginning of parshas Shoftim) mentions this approach, and then suggests a different way to understand the Gemara: Each sheivet has a beis din with jurisdiction over the entire sheivet, greater responsibility and authority than has a city’s beis din, whose authority is limited to the city’s borders. Thus, although a city’s beis din can force anyone who lives in its city to follow their directives or to appear before them for litigation, they cannot obligate someone who lives outside their city to appear before them or to follow their orders. A sheivet’s beis din has the ability to force any member of that sheivet to appear before them for litigation. It also has the ability to create a gezeirah that is binding on the entire sheivet.

23 Judges!

The Rambam (Hilchos Sanhedrin 1:1, 3) rules that each city and region in Eretz Yisroel has its own beis din of 23 judges, and that smaller towns and villages have a beis din of three dayanim (Hilchos Sanhedrin 1:4). The Lechem Mishneh (1:1) explains that the Rambam uses the word “region” to mean the same thing that we have been calling sheivet, and also explains why the Rambam changes the term.

The Rambam elaborates on all the different batei din that must be created. There was a chamber in the Beis Hamikdash called the lishkas hagazis, which was the meeting place of the main beis din of Klal Yisroel, the Sanhedrin, also called the Beis Din Hagadol, which consisted of 71 judges. There was a second, smaller beis din of 23 dayanim that was located near the entrance to the Beis Hamikdash, and a third beis din, also of 23 dayanim, that was located near the entrance to the Har Habayis.

The authority of the Sanhedrin

The Sanhedrin has much authority and many roles to play. It is the final court of halachic appeals, and the final decider of halacha. Its interpretation of Torah sheba’al peh is authoritative. Any halachic issue that is uncertain or disputed by a lower beis din could eventually be referred to the Beis Din HaGadol for a binding decision.

When the Sanhedrin exists, the Jewish calendar is determined by a small beis din appointed especially for this purpose by the nasi, the head of the Sanhedrin.

All the other batei din mentioned above — the smaller ones on the Har Habayis and at the entrance to the Beis Hamikdash, and the batei din of the shevatim and the cities – are appointed by the Sanhedrin.

The Sanhedrin also fulfills several political and administrative roles. It appoints the king of the Jewish people. Many other halachos require the participation or agreement of the Sanhedrin, including a decision whether to wage war and to expand the halachic boundaries of the Beis Hamikdash or of Yerushalayim (Mishnah Shevuos 14a; Rambam, Hilchos Sanhedrin 5:1). Thus, the Sanhedrin is not only the supreme halachic authority, but it is also quite literally the “power behind the throne,” “the power behind the courts,” and, at the same time, the court of final appeal. It has the final say in all matters, both temporal and spiritual.

Who can be a judge?

There are many technical requirements that all members must meet, among them that they must all be superior talmidei chachomim and yirei shamayim (G-d fearing individuals), wise, perceptive, analytic, humble, truth-loving, personable, of good reputation and possess a basic knowledge of many secular areas, such as medicine and astronomy (Rambam, Hilchos Sanhedrin 2:1, 7). The Rambam (Hilchos Sanhedrin 2:8) describes how the Sanhedrin would send representatives to locate qualified dayanim and appoint them to their local beis din. As places on the higher batei din opened, they would promote local dayanim up the chain to the next tier, and so on. The Rambam also emphasizes the importance of appointing appropriately qualified people to be dayanim, and the catastrophe that results from appointing those who are unqualified or inappropriate (Hilchos Sanhedrin 3:8).

Semicha

All members of the Sanhedrin and, indeed, of all the lower courts must also receive the special semicha that Moshe bestowed upon Yehoshua authorizing him to rule on all areas of Jewish law. This special semicha, which existed from the time of Moshe Rabbeinu until sometime during the era of the Gemara, authorized the recipient to rule on capital and corporal cases (chayavei misas beis din and malkus) and to judge cases involving kenasos, penalties that the Torah invoked. Only a beis din consisting exclusively of dayanim ordained with this semicha may judge these areas of halacha (Rambam, Hilchos Sanhedrin 4:1).

In today’s world, there are several levels of semicha, all of them of a lower level than that granted by Moshe Rabbeinu. The most basic semicha, yoreh yoreh, authorizes the recipient to rule on matters of kashrus and similar areas. A more advanced level of semicha called yodin yodin authorizes its recipient to rule as a dayan on financial matters. A higher level, no longer obtainable today, is called yatir bechoros and authorizes its recipient to rule on whether a first-born animal is blemished and no longer acceptable as a korban, which permits the animal to be shechted for its meat (see Sanhedrin 5a).

The role of a local beis din

The local beis din’s responsibility in a community is also quite multi-faceted. They are not only the judicial branch of the government, charged with ruling on local dinei Torah and interpreting the halachos for local practice, but they are also the executive, or administrative, branch of government, responsible to supervise that the community and its individuals observe halacha fully and correctly. In this capacity, they are responsible to make sure that the weights and measures in the marketplace are honest (Rambam, Hilchos Sanhedrin 1:1) and that the prices charged by stores do not exceed what halacha permits. The local beis din is responsible to make sure that no one overcharges for staple products (ibid.; Shulchan Aruch, Choshen Mishpat 231:20).

Overseeing that the community observes halacha correctly is also a responsibility of the beis din. For example, the Rambam and Shulchan Aruch rule that beis din supervises that yomim tovim do not become the cause for inappropriate social activities. This includes assigning police to patrol parks and other relaxing areas to maintain proper standards of public conduct (Rambam, Hilchos Yom Tov 6:21, Shulchan Aruch Orach Chayim 529:4). Beis din is responsible to make sure that duchening was performed only by kosher kohanim (Kesubos 25a). It is their job to make sure that no one works on chol hamoed in violation of the halacha (Rambam, Hilchos Yom Tov 7:4), that people keep their pledges to tzedakah (Rosh Hashanah 6a), that graves and other tamei meis areas are properly marked, and that people do not plantor maintain kelayim (Rambam, Hilchos Yom Tov 7:11).

The beis din assumes responsibility to protect individuals who cannot oversee their businesses or properties, such as, someone who fled to avoid danger, was kidnapped or captured. Beis din will appoint someone to manage the individual’s properties and businesses (Shulchan Aruch Choshen Mishpat 285:2). They are also responsible to see that the properties of orphaned minors are properly managed (for example, see Shulchan Aruch Even Ha’ezer, 112:11).

Included in this responsibility is that, if a father cannot or does not give his son a bris milah, the beis din makes sure that the mitzvah is performed (Kiddushin 29a; Shulchan Aruch Yoreh Deah 261:1).

Smaller batei din

In addition to the officially appointed batei din, in earlier generations there were local batei din, appointed by a community to oversee its own matters. For example, the kohanim had their own batei din, who were authorized to make rules and new takanos that applied only to the kohanim (see Pesachim 90b; Kesubos 12a).

Chutz la’aretz

The Ramban (beginning of Parshas Shoftim) notes that the posuk implies that there is no requirement min haTorah to establish a beis din outside of Eretz Yisroel. This is because the Torah requires appointing judges and bailiffs in your gates, which means the gates of Jewish cities in Eretz Yisroel. However, the Ramban notes that the Gemara (Makkos 7a) rules that once Klal Yisroel arrives in and settles Eretz Yisroel, there is an obligation min haTorah to have a beis din in chutz la’aretz also, although not in every city, but only in “districts.”

Min haTorah or not?

The Ramban concludes that establishing batei din outside Eretz Yisroel isrequired min haTorah only when there are dayanim who have achieved the highest level of semicha, that which is a continuation of what Moshe Rabbeinu conferred on Yehoshua. As I mentioned above, this semicha was discontinued during the era of the Gemara. There have been several attempts to reestablish this semicha, the most famous of which was when the Mahari Beirav was the rav of Tzfas, and Rav Yosef Karo was a member of his beis din. However, none of these attempts succeeded. The Ramban concludes that, although we no longer have a Torah obligation to establish batei din in chutz la’aretz, there is a rabbinic requirement to do so.

How do we litigate?

Over the years, I have been asked many questions about the way batei din operate. Most of these questions stem from a misunderstanding of legal procedures in general, or from a lack of knowledge about how a beis din functions.

Here is a typical example, lifted from my records. The din Torah was the result of a business partnership that had soured. I received the following e-mail communication: “I have asked Mr. F. to tell me what he is claiming. He has not responded, but has clammed up about his claim. He knows what I am claiming and he said that I have to sign an arbitration agreement in beis din and only then will he present what he is claiming from me. I am asking if this is just — he knows what I am claiming but what he is claiming will be a surprise.”

I answered: “Mr. F. is under no obligation to reveal to you what he feels you owe him, without an agreement that the two of you will go to binding arbitration in beis din. Telling him the basis of your claims does not require him to reveal any information. If you feel that you can disprove his claims, you should tell that to the beis din, and you have a right to postpone the proceedings to allow you the time to present your proofs.

In the interim, you can agree to go to beis din, or you can suggest that the two of you discuss the matter in the presence of a disinterested party in the hope of negotiating some type of settlement. However, he is under no obligation to agree to this. If you receive a summons to beis din, you are required to respond.”

By the way, when choosing to go to a beis din, the almost-universal tendency is to find a beis din where I will “win” my case. However, the mitzvah specifies that you should go to the beis din that is most expert (Sanhedrin 32a). The Gemara implies that this is a mitzvah min haTorah, derived from the words in Parshas Shoftim, tzedek tzedek tirdof, which the Gemara explains to mean haleich achar beis din yafeh, “find the most expert beis din” to litigate your case, so that it is resolved correctly.

Turf wars

What do you do if the other party insists that you go to their choice of beis din?

I mentioned earlier that the Ramban explains that the dayanim of a sheivet have greater jurisdiction than do those of a city, who cannot force someone from outside their city to come before them for litigation. A sheivet’s beis din has the ability to force anyone in their sheivet to come to them for litigation. The same authority applies to a city’s beis din relative to a city’s inhabitants. Therefore, if our beis din system were able to work the way the Torah designed it, the official dayanim of a city would be able to require litigants to appear before them.

Because the countries in which we live will not compel halachic observance, we cannot legally coerce someone to appear before an official city beis din. But an observant Jew knows that he must appear before beis din when summoned.

The person being sued (the defendant) is usually assumed to have the right to choose which beis din will hear the case, as long as it is in his city of residence. However, this is not ironclad. If the defendant chooses a beis din that will be more expensive for the claimant, or he is trying simply to inconvenience the claimant, there is no right to choose this option over a more-convenient, less-expensive choice. If the defendant visits or does business in the city where the claimant lives, and the claimant rarely travels to the defendant’s city, the beis din in the claimant’s city can demand to judge the case (Shu”t Maharshdam #103; Shu”t Igros Moshe, Choshen Mishpat 1:5; Shu”t Yabia Omer 7:Choshen Mishpat:4). Under these circumstances, a proper beis din will ignore the defendant’s request for choice of venue, and should he not respond to his summons, rule him a lo tzayis dina, someone who does not obey the laws of the Torah, which has many ramifications (Aruch Hashulchan, Choshen Mishpat 26:2, 5; Shu”t Imrei Yosher #38).

Conclusion

A Torah Jew must realize that Hashem’s Torah is all-encompassing, and that every aspect of his life is governed by Torah law. A Jew hopes to manage his business relationships without ever resorting to litigation. If there is an unfortunate “misunderstanding,” the two parties should discuss the matter and, if the matter remains unresolved, they should try discussing it with the guidance of a third party, possibly a rav. However, should all these approaches not succeed, the avenue of halachic litigation exists.

Carrying on Shabbos

Question #1: A Private Area Owned Publicly?

Can a “private area” be under public ownership?

Question #2: Owning a Public Area

Is it possible to own a public area?

Foreword

The 39th of the melachos of Shabbos is usually called “carrying,” although the Hebrew term hamotzi (Shabbos 73a) translates as “removing,” moving something from an enclosed to a public area. In parshas Beshalach, the Torah states: Hashem gave you the Shabbos. For this reason, He provides you with two days’ supply of bread on the sixth day. Each person should remain where he is and not leave his place on the seventh day” (Shemos 16:29).

The sentence each person should remain where he is and not leave his place means not to leave home while carrying the tools needed to gather the mann (Tosafos, Eiruvin 17b). Thus, the Torah prohibits carrying from one’s house, or any other enclosed area (halachically called a reshus hayachid), to a reshus harabim, an area established for public use. Chazal further explain that moving an item from a reshus hayachid to a reshus harabim violates Torah law even if someone did not carry it but remained in the reshus hayachid and threw it or handed it to someone else, as long as the item was transferred from a reshus hayachid to a reshus harabim (Shabbos 2a, 96a-b).

Reshus harabim to reshus hayachid

We derive from other sources that it is prohibited min haTorah to transport an item in the other direction — from a reshus harabim to a reshus hayachid — and also to carry or transport it four amos (about seven feet) or more within a reshus harabim (Shabbos 96b; Tosafos, Shabbos 2a s.v. Pashat). Since the melacha includes more than “carrying” or “removing,” a more accurate English term for this melacha is probably “transporting” or “conveying.”

The purpose of this article is to provide introductory information identifying what qualifies as a reshus hayachid and a reshus harabim min haTorah, and the names and definitions of two other jurisdictions. There are far too many details in this melacha to cover in one article, and, therefore, providing practical halacha le’maaseh will need to wait for further articles on the subject.

Introduction

Germane to the min haTorah laws of carrying on Shabbos, every place in the universe falls under one of three Torah categories: reshus hayachid, an enclosed area; reshus harabim, an area meant for public thoroughfare or for public use; and makom petur, an area that does not meet the definitions of either a reshus hayachid or a reshus harabim. There is also a fourth area created by rabbinic injunction, called a carmelis, which we will discuss.

Reshus hayachid – these words literally mean a private domain. The term means an enclosed area and has nothing to do with who owns it. Min haTorah, a reshus hayachid does not need to be fully enclosed; it is sufficient if it is enclosed most of its way around by walls, or their equivalent, that are at least ten tefachim tall (approximately three feet). (There are disputes about details that we will leave for the time being.)

A reshus hayachid must be at least four tefachim (approximately fourteen inches) long by four tefachim wide. If the area is narrower than four tefachim, it is not a reshus hayachid, but a makom petur, which we will define shortly.

From the depths

The walls of a reshus hayachid need not necessarily go up – they can go down from ground level. In other words, a pit, a manhole, a sewer or a mine that is at least ten tefachim deep and four tefachim long and wide also qualifies as a reshus hayachid. Carrying from this “hole in the ground” into a reshus harabim, or from a reshus harabim into it, are violations of Torah law.

Sloping reshus hayachid

Some or all of the “walls” of a reshus hayachid can be created by the slope of a mound whose top is at least ten tefachim higher than the area around it, and the mound rises to this height within a walking distance of four amos or less, thus creating a significant angle of slope (Shabbos 100a; see Mishnah Berurah 345:5).

Above

Once an area is categorized as a reshus hayachid, the space above it also qualifies as a reshus hayachid, regardless of the height. This is referred to by Chazal as reshus hayachid olah ad larakia (Shabbos 7a, b; Eiruvin 32b, 34b), literally, “a private domain rises to the sky.” Thus, since throwing something from a reshus harabim to a reshus hayachid is a melacha de’oraysa, tossing an item on Shabbos from a reshus harabim that lands on top of a pole in a reshus hayachid violates a Torah prohibition of carrying. This is true even if the item lands at a point hundreds of feet above the ground.

The walls enclosing a reshus hayachid are part of the reshus hayachid. Therefore, atop the walls is also part of the reshus hayachid, as well as any drawers, shelves, cracks or crevices along its inside walls, regardless as to their dimensions or height (Shulchan Aruch, Orach Chayim 345:4). The Shulchan Aruch concludes that the entire crevice, even when it penetrates the entire wall to a reshus harabim area on the opposite side, is part of the reshus hayachid. However, in one instance some later authorities disagree with the conclusion of the Shulchan Aruch. When the crevice is in the lowest ten tefachim of the reshus hayachid and it passes through the wall to the reshus harabim on the other side, the Elya Rabbah and the Gra conclude that the crevice has the halachic status of a reshus harabim, not a reshus hayachid.

Movable reshus hayachid

A reshus hayachid can be portable and can even be a storage item or vessel sitting in a reshus harabim. Thus, the standard American mailbox sitting on the street corner, which is larger than four tefachim by four tefachim and more than ten tefachim tall, is a reshus hayachid, notwithstanding its location in a public area. Garbage cans whose sides are at least ten tefachim tall and contain an area at least four tefachim by four tefachim qualify as a reshus hayachid, both inside and above it. If the garbage can is round, it must be large enough to contain a square area four tefachim on each side (Shulchan Aruch, Orach Chayim 345:6).

Thus, moving something lying on the street onto or into a mailbox, garbage can or dumpster may violate carrying on Shabbos min haTorah.

Similarly, the hood, trunk or roof of an automobile are reshuyos hayachid, since they are ten or more tefachim tall and at least four tefachim wide and long. Therefore, carrying an item from a reshus harabim and placing it atop a car or truck, or removing something from atop a car or truck and placing it in reshus harabim are violations of carrying min haTorah.

A publicly owned, private area?

At this point, we can address our opening question: Can a “private area” be under public ownership?

The answer is that it can. Germane to the rules of Shabbos, a “private area,” reshus hayachid, refers to it being enclosed, not to who owns it.

Reshus harabim

Reshus harabim, which literally means “a public domain,” refers to an area intended for public use. There are several requirements for an area to qualify as a reshus harabim, the most basic being that it must be at least sixteen amos (about twenty-eight feet) wide (Shabbos 99a), that it must be unroofed (Shabbos 5a) and that it is meant to be a public thoroughfare or for other public use, such as a marketplace (Shabbos 6a). It is not required that it be sixteen amos wide for its entire length — if there are places in which it narrows to a width of only 13 1/3 amos, it still qualifies as a reshus harabim (Shulchan Aruch, Orach Chayim 345:9).

A side street or alleyway that is less than 16 amos wide qualifies as a reshus harabim if it connects two reshus harabim areas (Shulchan Aruch, Orach Chayim 345:8). Similarly, an intra-city road leading from one city to another is a reshus harabim, even if it is less than 16 amos wide, when the cities it connects qualify as a reshuyos harabim.

Some authorities contend that a reshus harabim cannot be inside an enclosed area. However, the Be’er Heiteiv (345:7), quotingthe Rashba, andthe Baal Hama’or (Eiruvin 22a),quoting Rabbeinu Efrayim, disagree with this last opinion, contending that an area sixteen amos wide meant for public thoroughfare is a reshus harabim, even if it is enclosed by walls.

Below three tefachim

As opposed to a reshus hayachid, which includes all the area above it, a reshus harabim includes only the area near the ground. In other words, if the ground is not perfectly smooth, the three lowest tefachim of the small hills and indentations, both below and above street height, are part of the reshus harabim. An area that rises more than three tefachim above or is more than three tefachim below street height is no longer part of the reshus harabim. At times, as we will soon see, the area more than three tefachim above the reshus harabim is a makom petur.

600,000

The rishonim dispute whether an area that meets all the other requirements of a reshus harabim, but does not service 600,000 people on a regular basis, qualifies as a reshus harabim (Rashi, Eiruvin 6a and 59a; Tosafos, Eiruvin 6a s.v. Keitzad). For a reason I will explain shortly, those who require 600,000 people for the area to be a reshus harabim permit an eiruv in an area that does not have this many people even when it meets the other requirements of a reshus harabim. The established practice among Ashkenazim is to rely on this approach (Taz and Magen Avraham, Orach Chayim 345), although not all authorities accept it (Shu”t Mishkenos Yaakov #120 s.v. Hinei harishon and Biur Halacha 345:7 s.v. She’ein).

Whether Sefardim rely on this approach is disputed by later authorities (commentaries on Shulchan Aruch, Orach Chayim 345:7 and 303:18). The exact definition of what is meant that “600,000 use the area” is the subject of much literature and dispute. (Among numerous other authorities, see commentaries on the Gemara and Shulchan Aruch, Orach Chayim passages above; Shu”t Beis Efrayim, Orach Chayim #25, 26; Shu”t Igros Moshe, Orach Chayim 1:139:5; Shu”t Mishnas Aharon, Orach Chayim #6.)

Within a reshus harabim

Carrying more than four amos in a reshus harabim is forbidden and usually violates a melacha min haTorah. Carrying an item from a reshus hayachid to a reshus harabim or from a reshus harabim to a reshus hayachid also usually violates a melacha min haTorah.

Usually an area enclosed by walls does not qualify as a reshus harabim (Eiruvin 22a). What is the halacha if an area is enclosed for most of its length, but there are large gaps in the enclosure? For example, walls or buildings enclose most of an area – however, in the middle of the area there are streets that cross through city blocks. Is this area that is mostly surrounded by buildings and other structures considered a reshus harabim because of its use, or has it lost this status because it is “enclosed”?

The Beis Efrayim and the Chazon Ish (Orach Chayim 107:5) contend that this is considered an enclosed area min haTorah, notwithstanding the large breaches in its enclosure, whereas the Mishkenos Yaakov and Rav Aharon Kotler consider it to be a reshus harabim min haTorah. The lengthy correspondence on this question between the Beis Efrayim and the Mishkenos Yaakov also covers a host of other related issues (Shu”t Beis Efrayim, Orach Chayim # 25, 26; Shu”t Mishkenos Yaakov, Orach Chayim, #120-122).

Owning a Public Area

At this point, we can address the second of our opening questions: Is it possible to own a public area? If the question is whether privately owned property can qualify as reshus harabim (i.e., it has the physical properties that define a reshus harabim for hilchos Shabbos), the answer is “yes.”

Makom petur

This is an area into, within and from which there is no prohibition of carrying on Shabbos at all. In other words, it is 100% permitted to transport an item from a reshus harabim to or from a makom petur on Shabbos, or to or from a reshus hayachid from a makom petur. But before getting excited that we can now circumvent the violation of carrying on Shabbos, we must note that it is forbidden to use a makom petur as a transit point to move something from a reshus hayachid to a reshus harabim, or vice versa. In other words, if an item started Shabbos in a reshus hayachid and was moved to a makom petur, it cannot then be moved to a reshus harabim. Similarly, an item that started Shabbos in a reshus harabim and moved to a makom petur cannot be moved afterward to a reshus hayachid.

A makom petur is an area less than four tefachim wide that is at least three tefachim high or is enclosed within “walls” that are this high. A telephone pole or a street sign qualify as a makom petur since they are more than three tefachim tall and less than four tefachim wide, as does a British or Israeli mailbox, which are significantly smaller than American mailboxes.

An area enclosed between parallel walls that are within four tefachim of one another is a makom petur, regardless of the length of the area. Similarly, a ditch or furrow narrower than four tefachim whose sides are three tefachim deep is a makom petur, even though it may be many miles long (Shulchan Aruch, Orach Chayim 345:19).

I noted above that it is permitted to transport an item on Shabbos from either a reshus harabim or a reshus hayachid to or from a makom petur. However, before attempting to do this, be aware that within a reshus hayachid, there is never a halacha of makom petur. Once an area qualifies as a reshus hayachid, everything inside and above it is also a reshus hayachid. More importantly, the rishonim dispute whether a makom petur exists within the area called a carmelis (which I will explain in the next paragraph). Those who hold that an area that would otherwise be a makom petur, but is inside a carmelis, has the status of a carmelis, will not permit moving an item from a reshus harabim or a reshus hayachid to or from it (Rema, Orach Chayim 345:19). Both the Rema and most acharonim rule according to the more stringent opinion, which severely limits the heter of a makom petur (Mishnah Berurah 345:87; however, see Biur Halacha 345:19 s.v. Veyeish).

Carmelis

Now that we have clarified the three areas that exist under Torah law, I need to explain a fourth area called a carmelis. A carmelis is a domain created by Chazal that has the stringencies of both a reshus hayachid and a reshus harabim. Thus, it is prohibited to carry to or from a carmelis to a reshus harabim (because a carmelis has the stringency of a reshus hayachid), to or from a carmelis to a reshus hayachid, or for a distance of four amos or more within a carmelis (because it has the stringency of a reshus harabim).

What areas qualify as a carmelis? Any surface area that does not meet the Torah’s definition of a reshus harabim, and yet is not enclosed, qualifies as a carmelis. This includes fields, forests and other uninhabited areas, bodies of water, beaches, hills, etc. (Shulchan Aruch, Orach Chayim 345:14). Another example: I mentioned above that any covered area is not a reshus harabim. Thus, the lower level of a bridge, such as the George Washington Bridge, and all tunnels are not reshuyos harabim, notwithstanding that they may be sixteen amos wide, made for public thoroughfare and have 600,000 people travel on them daily (see Shulchan Aruch, Orach Chayim 345:7 and 14). Each of these areas qualifies as a carmelis, and carrying to, from and in them is prohibited, but only because of a rabbinic injunction. Most of these areas are a makom petur min haTorah, although some are a reshus hayachid min haTorah.

There are numerous practical halachic differences that result from the fact that the prohibition to carry in these areas is only miderabbanan. Because of space considerations, we will leave most of this discussion for future articles.

Eiruvability

Perhaps the most significant difference between a reshus harabim and a carmelis is that, in accepted practice, an eiruv permits carrying only in an area in which there is no violation to carry min haTorah (Eiruvin 6a-b). For this reason, before attempting to build an eiruv, a decision must be reached whether the area is halachically a carmelis, in which case it is possible to construct an eiruv, or a reshus harabim min haTorah, in which case it cannot.

Conclusion

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos so that it should be a day of rest. He points out that the Torah did not prohibit doing avodah, which connotes hard work, but melacha, which implies purpose and accomplishment. Thus, even transporting items accomplishes something, notwithstanding that the object moved is not physically changed in the process. The goal of Shabbos is to allow Hashem’s rule to be the focus of creation by withdrawing from our own creative acts (Shemos 20:11). By refraining from melacha for one day a week, we demonstrate Who created the world and authorized us to control it.

Chumash and the Fall of the Ghetto

The yahrzeit of Rav Shamshon Raphael Hirsch,  a man to whom each of us owes a personal debt of gratitude, is on the 27th of Teiveis.

From the time of the French Revolution and continuing into the nineteenth century, the ghetto walls that had kept the Jews isolated from the world around them gradually fell all over central Europe. A result of this was that, no longer required to be part of their insular and observant Jewish communities, many Jews began to assimilate into the world environment now open to them and to throw away their Judaism.

In Eastern Europe, although the Jews were still kept isolated from full advancement into secular society, different forces, most notably the haskalah, accomplished similar purposes of distancing many Jews from the observance of the Torah. Among the challenges posed by some of the more intellectual who had abandoned Judaism, was their misunderstanding that the Torah as presented by Chazal bore differences from that of the written Torah.

At this time, several new and highly original commentaries on Chumash appear. Among these are Hakesav Vehakabalah, by Rav Yaakov Tzvi Mecklenburg, the commentaries[i] of the Malbim to Tanach, the commentary of Rav Samson Raphael Hirsch, and the Ha’ameik Davar, the commentary of Rav Naftali Tzvi Yehudah Berlin, known by his acronym as the Netziv. All four of these commentaries show the impact of the tumultuous times in which they were written, although there are major differences between their treatments of Chumash.

Hakesav Vehakabalah

Rav Yaakov Tzvi Mecklenburg, born in 1785, a disciple of Rabbi Akiva Eiger, became the rav of the city of Koenigsberg, then in Prussia, in 1831 and remained in that position until his passing 34 years later. Koenigsberg was within Germany but far to the east, and therefore Rav Mecklenburg saw both the problems of assimilation and reform that were happening in Germany and those of the haskalah and other non-religious movements of Eastern Europe. Hakesav Vehakabalah was intended as a response to attacks on Chazal’s understanding of Torah. In his introduction, he discusses the issues concerning the writing down of Torah shebe’al peh, quoting both the midrashim and the explanations of the commentaries on this question.

The explanations of Hakesav Vehakabalah are based on careful analysis of the root meanings and grammar of the words of the Chumash, using them to provide a clear interpretation of the pesukim, at times providing a Yiddish translation for a term. Although frequently he is highly original in his approach, he also often mentions the different approaches of the earlier commentaries and chooses the one that he demonstrates is the most accurate.

The first edition of Hakesav Vehakabalah was published in 1839. In his lifetime, three more editions were published, each including additional commentary or translation. He continued to add more to the work, and a further edition, including the author’s additional notations, was published posthumously in 1880.

The Malbim

Rav Meir Leibush ben Yechiel Michel, who became known by his acronym, Malbim, served as the rav of many different communities in Eastern Europe. A brilliant talmid chacham, a warrior against the haskalah, and a prolific author, he is remembered to posterity primarily because of his commentaries on Tanach and the essays that accompany those commentaries.[ii] His commentary on Yeshayah, which is the first volume that he produced, includes an introduction in which he elucidates the principles that form the basis for his commentary on most of Tanach. These include that there are never two terms in Tanach Hebrew that mean the exact same thing, and that there are no repeated phrases or clauses. Each word in Tanach was chosen meticulously to provide a very specific nuance of meaning and that one must delve into the depth of this meaning. His works on Vayikra and Devorim are original commentaries to the midrash halacha on these seforim,in which he demonstrates how Chazal proved the correct halachic interpretation of each verse.

Rav Samson Raphael Hirsch

Rav Samson Raphael Hirsch, born in 1808 in Hamburg, Germany, held rabbinic positions in Oldenberg and Emden, Germany, prior to becoming the Chief Rabbi of Moravia. Thereafter, he returned to Germany and established a Torah-committed community in Frankfurt. Towards the end of his life, after he had built a strong Torah community, he produced his commentaries to the Chumash, Tehillim and the Siddur. As he writes in his introduction, his commentary on Chumash was based on lectures that he had given on the subject, and he used the notes of attendees to those shiurim as the basis for his written commentary.

The Netziv

Rav Naftali Tzvi Yehudah Berlin was born in the village of Mir, then in czarist Russia, in 1817. At the age of 16 he married the daughter of Rav Yitzchak of Volozhin, the son and successor of the founder and Rosh Yeshivah of the famed yeshivah in that city, Rav Chayim of Volozhin, the esteemed disciple of the Vilna Gaon. From that time until his very last months, the Netziv was associated with the yeshivah of Volozhin, where he eventually became Rosh Yeshivah, a position he held for almost forty years until the yeshivah was closed in 1892, because of the insistence of the czarist government that it secularize its curriculum. The Netziv authored many works, including a commentary on the She’iltos of Rav Achai Gaon, commentaries to all the halachic midrashim, a commentary on Shir Hashirim, responsa, and his commentary to the Chumash, called Ha’ameik Davar.

Of the four authors we are discussing, the Netziv is unique in that his primary role was that of a rosh yeshivah, whereas the other three were communal rabbonim. All four of these gedolim were renowned poskim. But the Netziv was unusual as a rosh yeshivah in that he not only taught a daily Gemara shiur in which he went through the entire Shas (not only the so-called “yeshivish mesechtos”), but he also taught a daily class in the week’s parshah. His discussion and his commentary were based on his personal analysis of the pesukim or from ideas that he heard orally from talmidei chachamim such as his father-in-law, Rav Yitzchak of Volozhin.

The differences among these commentaries

Notwithstanding the similarities of purpose among these commentaries, each reflects its author’s unique contributions to Torah; thus, there are major differences among them. For example, the Malbim’s commentaries to the book of Vayikra and to most of Devorim are not devoted to explaining the pesukim, but to demonstrating how the halachic droshah of the Torah shebe’al peh is based on a particular way of understanding the Torah shebiksav. He developed an extensive system that provides the underpinning of all of the halachic derivations. In his introduction to Vayikra, he writes that he had initially intended to write his commentary explaining this derivative approach to every droshah of Chazal. However, he discovered very early in the writing of his commentary that the length of such a work would become unrealistic. Instead, he wrote a separate essay that explains the principles with which Chazal operated, and in his commentary he referred to the appropriate part of this essay when necessary.

Rav Hirsch also maintained that proper study of Torah shebiksav will leave you with the conclusions of Torah shebe’al peh. He noted that the Torah shebe’al peh was actually taught to the Jews first.[iii] Moshe received all the laws of Torah shebe’al peh at Har Sinai and taught them to the Jewish people gradually. The completed Torah shebiksav was not received by the Jews until the very end of Moshe’s life, immediately prior to the Jews entering Eretz Yisroel, or forty years after they had received the Torah shebe’al peh. This explains numerous passages in the Torah, including the commandment to slaughter animals ka’asher tzivisicha “as you were instructed,” meaning the sets of regulations that had been transmitted to Moshe at Har Sinai and previously taught to the Bnei Yisroel.

Comparing Torah shebiksav to Torah shebe’al peh

Both Hakesav Vehakabalah and Malbim mention that a major purpose of their commentaries is to demonstrate that Torah shebiksav and Torah shebe’al peh are one. In the introduction to the first volume of commentary he wrote on Chumash, Vayikra, the Malbim mentions specifically the tragedy of the reform convention that took place in 1844 in Braunschweig (called Brunswick in English), a city in Germany about 40 miles southeast of Hanover. The Malbim writes that when he heard of what had happened at the reform convention, he decided that klal Yisroel required a new commentary on Tanach written according to the mesorah. He notes that among the points he will be demonstrating is that Torah shebiksav and Torah shebe’al peh are one.

Although Rav Hirsch’s very brief introduction to his commentary does not emphasize this relationship between Torah shebiksav and Torah shebe’al peh, this foundation shows up literally hundreds of times in his commentary.[iv]

Uniqueness of Ha’ameik Davar

Of the four authors we are discussing, the Netziv’s commentary is actually quite original in a surprising way, which requires that we explain a bit of history concerning traditional Torah commentaries. Among the early classic commentaries on Chumash, the Ramban, Rashi and many others assume that any explanation of the written Torah must fit the conclusions of our Chazal and the Oral Torah. This approach accords well with the approaches of Hakesav Vehakabalah, Rav Hirsch and the Malbim.

However, among the rishonim this approach was not universally held. The Ibn Ezra, for example, often explains pesukim unlike the halachic conclusion. He certainly felt that the concept ein mikra yotzei midei peshuto,[v] no verse is interpreted without its most literal explanation,means that the Torah can be understood on many levels, and that the most basic understanding, pshat, does not necessarily require that it be consistent with the other levels. Many later authorities and commentaries criticize the Ibn Ezra for his approach.[vi] Yet, the Netziv also utilizes the same method, at times explaining a pasuk in a way that does not appear consistent with the halachic conclusions that we find in Chazal.[vii] Such an approach was anathema to Hakesav Vehakabalah, Rav Hirsch and the Malbim.

Uniqueness of Rav Hirsch’s commentary

The most obvious difference between Rav Hirsch’s commentary and those of the others is, of course, the language. Whereas the other commentaries are written in traditional rabbinic Hebrew, Rav Hirsch published his commentary on Chumash, and, indeed, all of his other works, in German. Using the vernacular to present the Torah was not an original approach of Rav Hirsch. Rav Sa’adiya Geon’s commentaries to Chumash, as well as all his other writings, were written in Arabic, as were the Chovos Halevovos, the Kuzari, and many other writings of the early Sefardic rishonim. Similarly, the Rambam wrote all of his works, with the exception of the Mishneh Torah, in Arabic. However, using the vernacular as a vehicle for presenting Torah had fallen by the wayside in the hundreds of years since the era of the rishonim With very few exceptions, Torah works were all published in Hebrew. As a young rabbi in Oldenberg, Rav Hirsch recognized the need to present the Torah in German. He certainly understood that he had a personal mission of providing Torah education to his generation, and to demonstrate that a proper understanding of Torah demonstrates its primacy over all of man’s endeavors.

In Rav Hirsch’s commentary there are instances when he wrote a comment in Hebrew. Invariably, these are the comments of a Torah scholar on a Talmudic discussion point that was not appropriate to the general audience for whom his work was intended. Yet, he was concerned that posterity should not lose the important halachic point he had realized. To accommodate this, he chose to write these points in scholarly, rabbinic Hebrew.

Aside from his use of German, there are many other ways in which Rav Hirsch’s approach is different from the other commentaries that we are discussing. Rav Hirsch’s commentary is not simply an interpretation of Chumash. He uses his commentary to demonstrate how the Torah should be used as the primary educational tool for man to grow as a human being. There is virtually not a comment of his on the Torah that is not explained as a moral lesson, what we call in our day a musar haskeil. It appears that Rav Hirsch deliberately restricted his commentary to topics that provide us with a musar haskeil. There are many occasions where he did not comment upon questions about pshat in a verse where it would appear appropriate for him to have done so. Apparently, he refrained from providing commentary where the conclusion would not provide any lesson one can utilize for personal growth.

Thus, Rav Hirsch viewed his commentary as a means of showing how to use Chumash as a lesson guide in what we usually call musar and hashkafah. In this, his commentary is very different from the other three works we are discussing, all of which are devoted to providing a commentary on Chumash and not focused specifically on being works of ethical and moral development.

From a mussar perspective, Rav Hirsch’s Torah commentary can provide a complete life-instruction manual on its own. We understand well why Rav Shraga Feivel Mendelowitz told his students at Yeshiva Torah Vadaas that it would be worth their investment of time to learn to read German just for the sake of being able to read the writings of Rav Hirsch. (At the time that Rav Shraga Feivel advised his students to do this, no translation existed of Rav Hirsch’s Chumash commentary in any language, nor were most of his other writings available in Hebrew or English.)

Rav Hirsch called his Torah hashkafah by the term Torah im Derech Eretz, the details of which he developed at different places in his commentary.[viii]Although the expression is often misunderstood and misinterpreted, Rav Hirsch used this term to mean that Torah and its observance is always the primary focus of a Jew’s life, and that this can and must be done in all places, times and situations. Everything else that this world has to offer, including livelihood, education, culture, and social mores, must be subsumed within a Torah framework.

Reasons for mitzvos

One of Rav Hirsch’s most innovative approaches is his explanations of the ta’amei hamitzvah. Of course, we all realize that a human being could never claim to understand why Hashem commanded that we perform a certain activity or prohibit a different one. Nevertheless, while performing the mitzvah, there are lessons that we can derive that may help us appreciate to a greater extent our role in fulfilling Hashem’s mission for us on earth. The Sefer Hachinuch explains that the term ta’amei hamitzvah should be translated not as reason for a mitzvah, but as taste of a mitzvah. While observing or studying the laws of the mitzvos, an educational reason that we can utilize should assist the experience of the mitzvah.

The concept of deriving educational reasons for mitzvos certainly did not originate with by Rav Hirsch. In one place in his commentary,[ix] Rav Hirsch quotes dozens of sources where Chazal discuss what lesson one can derive from the observance of the mitzvos, and we have several rishonim, most notably the Rambam in his Moreh Nevuchim and the Sefer Hachinuch, who devote much time to this study. However, Rav Hirsch added several dimensions to the concept of ta’amei hamitzvah. One dimension is that Rav Hirsch’s explanation of a mitzvah must always fit every detail of the halachos, the laws of the mitzvah. In this detail, his approaches vary from those suggested by the Rambam and the Sefer Hachinuch, whose reasons often do not fit all the details of the mitzvah.

Based on this approach, Rav Hirsch first develops and explains all the details of a mitzvah according to the halachic conclusion, and then weaves an explanation for the mitzvah that fits all those halachic details. At times, he must first take controversial positions regarding details of the laws of the mitzvah, something he is not afraid to do.

Frequently, Rav Hirsch presents approaches to ta’amei hamitzvos that none of the major mitzvah commentators suggest. For example, Rav Hirsch presents brilliant approaches to explain mitzvos such as arayos, keifel, arachin, and tumah and taharah, and why we disqualify blemished animals and blemished kohanim from the service of korbanos. In the case of tumah, he notes that the foundation of most religions is the fear of death, and this is when the priest assumes his greatest role. Quite the contrary, the kohen, the Torah’s priest, is banned from involvement with the dead. This is to demonstrate that the Torah’s goal is that we grow and develop throughout life – when we are in the heights of our best health. To emphasize this, we need to distance the kohen, whose role is to educate how to live as a Jew, from death.

Rav Hirsch uses the same concept to explain a different, seemingly baffling area of mitzvos. Why is a kohen who has a physical blemish or injury forbidden to serve in the Mishkan or the Beis Hamikdash? Similarly, why is an animal with a similar impairment prohibited as a korban? This emphasis on physical beauty or selectiveness seems to run counter to the Torah’s idea of equality. Everyone is equally responsible to develop a relationship with Hashem through His Torah.

Rav Hirsch explains that religions in general become the home of those who are challenged by society and cannot find their place. The Torah needs to emphasize that everyone’s goal is to grow and develop in his relationship with Hashem. The only way to convey this message fully is to demonstrate that the physically impaired cannot perform service in the holiest of places.

Rav Hirsch develops an extensive analysis of the reasons for korbanos in general, and the different korbanos in particular. Based on the nature of its species, its age and gender, each variety of animal is used to explain the message and concept of each type of korban.

Rav Hirsch explains beautifully why someone who is caught stealing is required to pay back double, keifel, whereas a robber is not. One who steals when no one is looking undermines a basic understanding that a society needs in order to function – that I can rely on a degree of trust among my neighbors. Thus, his sin undermined not only the trust of the individual whose property was stolen but also that of society as a whole, thus requiring a double act of compensation.

Ta’amei hamikra

Rav Hirsch emphasized that his commentary is based on a careful understanding of the Chumash text. Read the verse very carefully and see what it teaches. Include in the study the ta’amei hamikra, what is colloquially called the trop, according to which we read the text and which includes rules how to break a pasuk into smaller units to understand it correctly. To Rav Hirsch, any interpretation of the verse must include a proper understanding of the ta’amei hamikra.

Grammar — Dikduk and shoresh

There are several other ways in which Rav Hirsch’s commentary is different from other approaches to study Chumash. People often note his original use of dikduk, particularly his development of understanding Torah ideas based on the principle of shorashim that are phonetic cognates. This idea, used by Chazal and by rishonim,[x] is that different consonants that are articulated by using the same part of the mouth are related to one another.[xi] Thus, there is a relationship among the guttural consonants (ע ה א ח) that can be used to explain the meaning of related roots that use these or the labials (ב ו מ פ).[xii] Based on similar roots, Rav Hirsch develops a philosophic underpinning of the comparative roots, and then creates an associative meaning for each root. Often included within this system is a relationship pattern between similar consonants. For example, the tzadi often reflects a more intense version of other similar sounds, such as the sin. Thus, there is a conceptual relationship between יצר, which means to limit something for a specific purpose, and יסר, which educates, shapes and disciplines the spirit. In literally hundreds of applications of these ideas, Rav Hirsch demonstrates an entire world of educational themes, each of which teaches a Torah perspective on the world.

The shoresh of a word can often explain to us not only why a specific term is used, but may sometimes provide educational and religious lessons. For example, when mentioning that Avraham Avinu moved his followers from Shechem to the mountain, the Torah uses an unusual word ויעתק vayateik, which Rav Hirsch translates as He gave orders to move on.[xiii] Rav Hirsch there notes that this root is used in various places in Tanach for apparently different ideas, but whose common thread is that someone or something is moved unexpectedly or forcibly to a setting where it did not belong originally. Rav Hirsch thereby explains that Avraham realized that his followers needed to be isolated from the society around them for him to succeed in educating them, but he needed to overcome their resistance in doing so. Thus, from the proper study of the root of the word used, we gain an insight into Avraham’s pedagogic approach.

Rav Hirsch later notes that Avraham Avinu indeed took his followers with him to rescue Lot. This is seemingly an abrogation of his previous decision to have his followers live apart from society. The answer is that this was an emergency, and one cannot maintain separation under those circumstances. Again, we are provided with an education on how to run one’s life according to Torah standards.

Germane to this discussion, I would like to take issue with a comment made by the late Dayan Dr. Isaac Grunfeld in his beautiful essay written as an introduction to the first English translation of Rav Hirsch’s commentary to Chumash, by Dr. Isaac Levy. Dayan Grunfeld’s writes that the Hirsch Commentary is devoted to presenting “the unity of the Written and Oral Law as one of the fundamentals of authentic Judaism.” In this introduction, Dayan Grunfeld makes the following statement, “When Samson Raphael Hirsch began his commentary in 1867, he had the works of Mecklenburg and Hatorah Vehamitzvah of Malbim in front of him.” I presume that Dayan Grunfeld has some mesorah that this is true. However, from my work on Rav Hirsch’s commentary, and my comparison to the other two works, I personally am not convinced that this statement is accurate. My reasons are as follows:

When Rav Hirsch felt indebted to an earlier commentator, he always quoted his source. In the course of his commentary of Chumash, he quotes a wide variety of sources, including his rabbe’im, Chacham Bernays and Rav Yaakov Ettlinger (the Aruch Laneir), the highly controversial Naftali Wessely, and such late works as Harechasim Levik’ah. Yet, there is not a single reference anywhere in his commentary on Chumash to either Hakesav Vehakabalah or Hatorah Vehamitzvah.

The answer is simple: Rav Hirsch’s thrust in his commentary was different from theirs. His goal was not to demonstrate that Chazal’s understanding of Torah was the most accurate. His goal was to show that the Torah can be used as a basis for all of man’s growth in Torah, his proper personality development, and his hashkafah or world outlook.

There are places that Rav Hirsch leaves us with no explanation, whereas Hakesav Vehakabalah presents approaches that lend themselves perfectly to Rav Hirsch’s style of commentary. I will give one example: Rav Hirsch has almost no commentary to the lengthy list of travels that the Benei Yisroel made through the desert. Yet, Hakesav Vehakabalah has a beautiful explanation of the names and travels, which lends itself perfectly to Rav Hirsch’s use of Chumash to teach musar haskeil. Rav Hirsch himself uses other similar passages to teach musar haskeil, most noticeably the list of names of the decendants of Sheis. If he was in the habit of reading Hakesav Vehakabalah as part of his weekly reading, as Dayan Grunfeld implies, I cannot fathom why he did not use the opportunity to include these lessons in his Torah commentary and attribute them to Hakesav Vehakabalah, as he so often attributes explanations to earlier commentators.

Conclusion

Most of the innovations that have kept Torah alive in the last century are directly attributable to Rav Hirsch. Although Sarah Shenirer is the founder and basis of the Beis Yaakov movement, the originator of organized chinuch for women was Rav Hirsch, and his influence on everything related to the beginnings of the Beis Yaakov movement is axiomatic.

In most countries of the world, the majority of our Torah elementary schools and high schools include secular studies in their curriculum. This approach to Torah education is completely based on the framework of Rav Hirsch’s education system.

The extensive use of the vernacular for teaching Torah is another gift to us from Rav Hirsch. Certainly, the success of the numerous publishing houses that print and distribute Torah literature written in English, French, Spanish, Russian and other languages is completely based on Rav Hirsch’s producing his material in German.

The existence in the modern marketplace of highly trained professionals, as uncompromising in their professional standards as they are in their Torah observance, is directly attributable to the teachings of Rav Hirsch.

Rav Hirsch was the quintessential borei’ach min hakavod. Clearly, he saw his mission in life as educating the Jewish world with the beauty of Torah and its mitzvos. Leaving Moravia for what appeared to be a moribund Frankfurt may have been a disastrous move professionally, but for Klal Yisroel it has been the savior, not merely of the central European Torah world, but of virtually the entire contemporary Torah world. Yehi zichro boruch.


[i] I refer to the commentaries of the Malbim because, although he wrote on the entire Tanach, a rare accomplishment, his treatment of the different parts of Tanach is so varied as to make it difficult to refer to it as one commentary.

[ii] On Chumash, the Malbim follows two different styles. As I mention in the article, his work to Vayikra and parts of Devorim is an explanation of the midrashei halachah, the Sifra and the Sifrei, in which he delves into Chazal’s method of understanding Torah Shebiskav. On the other hand, his commentaries to other parts of Chumash bear close similarity to the commentary of the Abrabanel – he presents many questions on the topic at hand, and then weaves an explanation to answer them. Yet another style is presented in his commentaries to Esther and Shir Hashirim, in which he presents his own midrashic-style approach to these works.

[iii] Commentary to Bereishis 1:19

[iv] This point is the main thrust of Dayan Isaac Grunfeld’s introduction to Rav Hirsch’s commentary, which I will quote later in the article.

[v] See Yevamos 28a

[vi] See, for example, the second introduction of Yam shel Shelomoh of the Maharshal to Tractate Chullin.

[vii] For examples of this, see his explanation of the law of shifchah charufah, Vayikra 19:20 and of the pasuk velo setamei es admasecha, Devorim 21:23. See there how the other three commentaries we discuss deal with this topic.

[viii] See, for example, his commentary to Vayikra 18:4.

[ix] Devorim 24:18

[x] For example, see Rashi, Vayikra 19:16, where he explains that the word רכיל stems from the word רגל.

[xi] A language specialist calls these words homorganic consonants.

[xii] Those interested in seeing a systematic dictionary of Rav Hirsch’s work in this area are referred to Matityahu Clark’s Etymological Dictionary of Biblical Hebrew, Feldheim Publishers, which Rabbi Clark writes is “based on the commentaries of Rabbi Samson Raphael Hirsch.”

[xiii] Bereishis 12:8. Translation is from the Haberman edition.

Only New Chometz Apply

Since parshas Bo includes the prohibitions about chometz on Pesach

Question #1: First Fruits

Which korbanos are offered only from “first fruits”?

Question #2: New Grains

Which korbanos are offered only from the new grain?

Question #3: Wheat from Heaven!

May korbanos be offered from heavenly-dropped wheat?

Foreword

Virtually all grain korbanos, called menachos (singular: mincha), are wheat, mankind’s most common basic sustenance. However, on the second day of Pesach, the korban omer is offered in the Beis Hamikdash from the new crop of barley. Indeed, it is the only barley-flour korban offered by the tzibur, the community. In general, barley is viewed as animal feed, rather than “people food” (see Pesachim 3b). (The only other korban from barley was the minchas sotah, a privately offered korban for which there is an obvious reason why it is from a feed grain, as Rashi [Bamidbar 5:15] and the midrashim [Midrash Agadah and Yalkut Shimoni ad loc.] elaborate.) Presumably, the reason that the korban omer was from barley is because barley ripens earlier than wheat and the korban omer permits the consumption of the new grain crop; the Torah did not delay until the wheat is ready for harvest.

In honor of Shavuos

Seven weeks later, on Shavuos, special korbanos, called the shetei halechem, are offered from the new wheat crop. Although this korban is kosher if made from the previous year’s wheat crop, there is a mitzvah min haTorah to bring it from the new crop. The offering of the shetei halechem permits the new crop to be used for menachos.

Introduction

Immediately after describing the korban omer, the Torah teaches: “And you shall each count seven complete weeks, from the morrow after that day of rest [the first day of Pesach], beginning on the day of your bringing the omer, which is waved. You shall count fifty days, until the morrow after the seventh week, at which time you shall offer a new grain offering to Hashem. From your dwelling places (Hebrew: ‘mimoshevoseichem’) you shall bring two loaves of bread. They (the two loaves together) shall comprise two tenths of an omer of fine flour. They shall be baked leavened (Hebrew: ‘chometz’) and be the first fruits unto Hashem (Hebrew: ‘bikkurim’). Together with the bread, you shall bring a group of seven yearling sheep and, also, one young bull and two rams. These (ten animals) will be olah offerings for Hashem, offered together with their appropriate grain offerings and libations. This is a fire offering, to show Hashem the fragrance of compliance” (Vayikra 23, 15-18; the translation of the word ניחוח follows that of Rav Hirsch). The Torah then completes the description, including that three more korbanos accompanied the shetei halechem, a male goat as a chatas and two yearling sheep as publically-owned korbanos shelamim, for a total of thirteen animal korbanos.

The Torah passage that I just quoted includes several interesting observations:

Receiving the Torah?

(1) Although calculation demonstrates that the holiday of Shavuos coincides with the giving of the Torah, neither here nor any other place does the Torah make any association between the two. This article will not discuss this famous question, to which there are many answers.

Imported grain

(2) We are told that the shetei halechem must be brought “from your dwelling places.” But grain is never grown in dwellings, but open fields!

The Gemara (Menachos 83b) explains that “dwelling place” here means Eretz Yisrael, and that, whereas other mincha offerings may use grain imported from outside Eretz Yisrael, shetei halechem may use only grain that grew in Eretz Yisrael (Mishnah Menachos 83b; Keilim 1:6; Parah 2:1).

Alef emphasis

(3) The word immediately after mimoshevoseichem in the Torah is תביאו, “you shall bring,” but the letter alef in that word contains a dagesh. However, an alef never otherwise has a dagesh. Why this anomaly? Rav Hirsch suggests that this is to emphasize the uniqueness of the shetei halechem as the only mincha in which the animal offerings are brought only as an accompaniment to the grain offering.

Chometz

(4) The Torah reports that the shetei halechem “shall be baked leavened.” This is very unusual. All grain offerings in the Beis Hamikdash must be unleavened – they all halachically qualify as matzah. Even the “leftovers” from all mincha offerings may not be allowed to become chometz (Vayikra 6:9-10)! A kohein who violates this last instruction intentionally could receive malkus, lashes, and would no longer be accepted as a witness!

There are only two exceptions – two instances of a grain offering in the Beis Hamikdash which is made from chometz: one of the four types of “bread” that accompanied the korban todah was chometz (Vayikra 7:13) and the shetei halechem of Shavuos (Mishnah, Menachos 52b). In both of these instances, the Torah states that they must be chometz.

The shetei halechem are the only public korbanos that are chometz, since the korban todah is an individual’s thanksgiving offering for surviving travail (Tehillim 100, 107 and Berachos 54b). Since the Torah states that no mincha “offered to Hashem” may be chometz (Vayikra 2:11), the chometz parts of these menachos are never placed on the mizbeiach, but are eaten in Yerushalayim while completely tahor, either by the kohanim and their families or by the owners of the korban.

Who is first?

(5) Furthermore, the Torah states that the shetei halechem must be bikkurim. Yet bikkurim usually means the fruits that a farmer grows in his field and brings to the Beis Hamikdash as his own thanks offering (see Devarim 26:1-11 and Mishnah, Mesechta Bikkurim). The Gemara explains that the word bikkurim, here, means that this year’s grain crops cannot be used for menachos before the shetei halechem has been offered. In addition, the Mishnah teaches that, what we usually call the bikkurim, the special, first-ripening fruits for which Eretz Yisrael is renowned, are not brought to the Beis Hamikdash until the shetei halechem korban is offered (Menachos 68b; see also Bikkurim 1:10).

Meat with bread

(6) The Torah states: “Together with the bread, you shall bring a group of seven yearling sheep and, also, one young bull and two rams.” These are not the korbanos musaf offered on Shavuos, which are mentioned in parshas Pinchas and are offered on Shavuos, even if no shetei halechem mincha is brought.

Virtually all grain offerings in the Beis Hamikdash are brought either without any animal korbanos, or to accompany the animal offerings. It is unusual that the main korban is one made from flour, and the animal offerings accompany the grain offerings; but that is the law regarding the shetei halechem. This is truly unique in the instance of the shetei halechem, since it is the only mincha that causes thirteen animal korbanos to be brought as a result. If the shetei halechem is not offered, these korbanos cannot be brought, but if these korbanos are not brought, the shetei halechem is kosher by itself.

The only other mincha that is the cause of the bringing of a korban is the korban omer, but in that case, only one korban is offered, a sheep. Shetei halechem are completely unique in that it is the only instance in which a grain offering causes the offering of a large group of korbanos.

Details, details:

In addition to these observations that lie directly in the pesukim themselves, there are a host of other unusual features that apply to the shetei halechem, such as:

1. The Mishnah (Menachos 59a) notes that the mincha of the shetei halechem is not accompanied by either oil or frankincense, unlike most mincha offerings. Why not?

To answer this question, I refer you to read, in detail, the commentary of Rav Hirsch (Vayikra 23:17).

2. The shetei halechem must be brought from grain that had not yet taken root prior to this year’s crop season (Mishnah, Menachos 83b; Parah 2:1; we should note the Rambam does not rule according to this Mishnah, a position that engenders much discussion). The shetei halechem permitted use of new grain in the Beis Hamikdash (Mishnah Menachos 68b). Menachos offered from the new grain before the korban omer was offered were invalid, whereas those offered before the shetei halechem were brought were kosher, although a Torah violation was involved in bringing them (Menachos 68b). I will return to this halacha shortly.

3. Although you may bake bread, challah, cake or cookies on Yom Tov to serve on that day, and the korbanos to be brought on that day (such as korbanos musaf and korban pesach) are shechted, butchered and burnt on the mizbeiach on Shabbos and certainly on Yom Tov, the shetei halechem could not be baked on Shavuos (Menachos 95b and 100b). The reason they could not be baked on Yom Tov is because baking and cooking on Yom Tov are permitted only to benefit Jews who will be celebrating Yom Tov, but it is prohibited to bake a korban on Yom Tov. Although korbanos are brought on Yom Tov, this applies only to the processing of the korban necessary to be performed that day. The baking of the menachos, similar to the baking of the twelve loaves of the lechem hapanim (the showbread) for Shabbos, could be performed before Shabbos or Yom Tov, and therefore the two loaves of the shetei halechem must be baked before Yom Tov.

Many halachic authorities raise the following question: Why can’t you bake your own private bread on Yom Tov for Yom Tov use, and, while doing do, bake the shetei halechem? There is much discussion among acharonim regarding this question, without any specifically accepted answer.

4. The shetei halechem and the two shelamim sheep offered with it were held up by the kohein and waved in six directions – upwards and downwards and in four directions of the globe, similar to the way the lulav and esrog are waved on Sukkos (Mishnah Menachos 61a).

5. The Mishnah teaches that ten miracles occurred in the Beis Hamikdash, one of which was that the korban omer and the shetei halechem were never invalidated by a pesul in which something unplanned went wrong (Pirkei Avos 5:5).

Heavenly wheat!

In this context, we have the following unusual passage of Gemara: “What is the halacha regarding wheat that fell from the clouds? Can it be used for the shetei halechem offering?”

Rashi and his grandson, Rabbeinu Tam, disagreed regarding what case is being described here. Rabbeinu Tam understands that the Gemara is discussing wheat that miraculously fell from heaven, similar to the way the mann in the desert arrived every morning. As traditionally explained, the berocha recited before eating the mann was “Hamamtir lechem min hashamayim,” “Blessed are You, Hashem… Who rains bread from the sky” (quoted by Shu’t Torah Lishmah #63, in the name of the Rama MiFano).

The Radbaz (Hilchos Temidim Umusafim, 8:3) is dissatisfied with Rabbeinu Tam’s approach, noting that Hashem brings miracles only when a major reason exists for them.

Stormy wheat

For these and other reasons, most late authorities prefer Rashi’s approach that the Gemara is discussing wheat that was blown by gale-force winds off a ship in the Mediterranean, or perhaps were on an island in the Mediterranean Sea, and then landed in Eretz Yisrael. We do not necessarily know the origin of the wheat; just that it landed in Eretz Yisrael.

Following either Rashi’s approach or that of his grandson, the Torah states that the shetei halechem must be offered from grain that grew mimoshevoseichem, from your dwelling places, and we learned above that this requires that shetei halechem must use wheat that grew in Eretz Yisrael. The question is whether this wheat, either the miraculous variety of Rabbeinu Tam’s version, or the windswept variety of Rashi’s, qualifies as wheat that grew mimoshevoseichem. (Our intrepid readers are referred to the commentary of the Mahari Kurkus on the Rambam, Hilchos Temidim Umusafim, 8:3, who analyses this issue.)

Brought too early

Regarding the shetei halechem offering, the Gemara presents the following intriguing anecdote. As I mentioned above, the Mishnah states that both the korban omer and the shetei halechem must be offered from the new crop (the korban omer from the new barley crop, and shetei halechem from the new wheat crop). The Mishnah also states that it was forbidden to eat from the new grain crop before the korban omer was offered, which is the prohibition of chodosh, and it is forbidden to offer a grain korban from the new crop until after the shetei halechem are offered. But, regarding a mincha from the new grain crop that is brought before the shetei halechem, the Mishnah makes the following distinction: If the new grain mincha was brought before the korban omer was offered on the second day of Pesach, the mincha is invalid, whereas if such a korban was brought after the korban omer was offered but before the shetei halechem, the mincha is kosher, notwithstanding that it is prohibited min haTorah to offer such a korban mincha.

Rabbi Tarfon, an older contemporary of Rabbi Akiva and one of the greatest Torah scholars of all time, queried why the offering of the korban omer, whose purpose was to permit the new grain to be eaten, should affect whether a mincha offered in the Beis Hamikdash is kosher or not?

A budding young scholar named Yehudah bar Nechemiah (besides this passage of Gemara, his name appears in several midrashim, mostly Midrash Rabbah and Midrash Tanchuma) answered Rabbi Tarfon with a brilliant insight: Prior to the bringing of the korban omer, the new grain qualifies as ma’achalos asuros, foods that a Jew is prohibited from eating – and there is a halacha that one cannot offer korbanos from products that a Jew may not consume. On the other hand, once the korban omer is offered, it is permitted to eat the new grain. It cannot be used for menachos because of a different law — the Torah refers to the shetei halechem as mincha chadasha, meaning that they should be the first korbanos offered from the new wheat crop. Should a different mincha be brought first from the new wheat crop, the shetei halechem are no longer mincha chadasha.

Yehudah bar Nechemiah argued that prior to the offering of the korban omer, the new grain has the status of ma’achalos asuros, which are never acceptable as korbanos, even after the fact (be’dei’evid). However, once the korban omer is offered, although it is still prohibited to use the new grain for menachos, we find many instances in which it is not proper to offer a korban a certain way, but be’dei’evid, after the fact, the korban is still kosher. Rabbi Tarfon was silent, implying that he accepted Yehudah bar Nechemiah’s response.

Rabbi Akiva, who, among other great luminaries of the era, was in attendance during this discussion, noted that Yehudah bar Nechemiah was smiling – demonstrating that he was personally satisfied to have bested a gadol beYisrael in a Torah discussion. Rabbi Akiva realized that Yehudah bar Nechemiah was afflicted with a very bad shortcoming – misplaced personal pride. Rabbi Akiva then forecast, within Yehudah bar Nechemiah’s earshot.

“Yehudah, I will be surprised if you’ll live a long time!” This was not intended as a curse, but a prediction.

The Gemara then quotes from the famous tanna, Rabbi Yehudah (the son of Rav Ila’ii), who was also present during this exchange. Rabbi Yehudah shared that the discussion between Rabbi Tarfon and Yehudah bar Nechemiah took place two weeks before Pesach, and that when he, Rabbi Yehudah (who lived in the southern part of Eretz Yisrael) returned for Shavuos to the beis hamedrash of the Sanhedrin, he did not find Yehudah bar Nechemiah. When Rabbi Yehudah inquired about Yehudah bar Nechemiah’s wellbeing, he was told that Yehudah bar Nechemiah had passed away suddenly in the interim.

This very tragic turn of events brings to mind both the deaths of Rabbi Akiva’s 24,000 disciples (which occurred shortly after the sudden passing of Yehudah bar Nechemiah) and the much earlier tragedy of the sudden deaths of Nadav and Avihu, the two oldest sons of Aharon. In all of these instances, young, brilliant Torah scholars were suddenly taken because of personal character flaws. As implied by the midrash, had these young, great scholars become the leaders of the Jewish people, this would have caused irreparable damage to our mesorah. Klal Yisrael survives only when those who carry on the mesorah do so solely because of their obligation to Hashem, not because of personal interest.

Conclusion

Do we live with a burning desire to see the Beis Hamikdash rebuilt speedily in our days? Studying the halachos of the korbanos should help us develop our sensitivity and desire to see the Beis Hamikdash again in all its glory. May we soon merit seeing the kohanim offering all the korbanos in the Beis Hamikdash in purity and sanctity and Klal Yisrael in our rightful place in Eretz Yisrael, as a light unto the nations!

A Rishon Letzion Named Rapaport

Question #1: Fragrances on Motza’ei Yom Tov

May I include fragrances as part of havdalah when Yom Tov ends?

Question #2: Late Asher Yatzar

How long do I have to recite Asher Yatzar?

Question #3: Davening Outdoors

Is it permitted to daven in the courtyard outside a shul?

Question #4: A Rishon Letzion Named Rapaport

What do any of these questions have to do with parshas Shemos?

Foreword:

Rishon Letziyon is an old traditional title for the Sefardi rav of Yerushalayim. How did someone named Rapaport, which is a classic Ashkenazi family name, become Rishon Letziyon?

Introduction:

Parshas Shemos teaches that, for disobeying Pharaoh’s murderous commands, the Jewish midwives merited the “building of houses.” This is explained by the Midrash, quoted by Rashi, to mean that they were granted batei kehunah and batei malchus. Miriam was rewarded with batei malchus, that the royal house of Dovid Hamelech descended from her, and Yocheved merited batei kehunah — all kohanim are descended from her. The words batei kehunah mean “houses of kehunah,” which is a bit strange: why don’t Chazal simply call it beis kehunah, “the house of kehunah?” Although we will not answer this question, it became the source of the title of an important halachic work.

Batei Kehunah

A gadol beYisroel who lived three hundred years ago was descended from kohanim on both his father’s and his mother’s sides. Based on his lineage, he named his Torah works Batei Kehunah. This gadol, who is hardly known in the Ashkenazi world, carried the name Rav Yitzchak HaKohen Rapaport. He was the chacham bashi — a title for chief rabbi of a large city — in the Ottoman Empire, first of Izmir, Turkey, and subsequently became both the chacham bashi and the Rishon Letziyon of Yerushalayim. In numerous places, the Chida refers to the Batei Kehunah as the mofeis hador, or as mofeis doroseinu, “the wonder of our generation.” Considering that this was the same era in which lived such luminaries as the Gra, the Pnei Yehoshua, the Sha’agas Aryeh, the Noda Biyehudah, the Maharit Algazi and the Chida himself, this is a rather impressive accolade.

Rav Yitzchak Hakohen Rapaport

Rav Yitzchak Hakohen Rapaport was born in Jerusalem in 5445 (1685) to Rabbi Yehudah Rapaport. Rav Yitzchak’s father was born in Lublin, Poland, made aliyah to Eretz Yisrael, and there married the daughter of a family of major Torah scholars, who were kohanim and Sefardim. Thus, although Rav Yitzchak’s father had been born in Poland, hence the family name Rapaport, he was raised in a completely Sefardi environment. There was no Ashkenazi community in Eretz Yisrael at the time, and therefore Rav Yitzchak treated himself completely as a Sefardi. This explains how a Rishon Letzion could have such an Ashkenazi last name.

In his youth, Rav Yitzchak studied in the yeshiva of the Pri Chodosh, Rav Chizkiyah Di Silva. In his introduction to Batei Kehunah, Rav Yitzchak explains that he never left the beis medrash for fear that he would miss some of his rebbe’s Torah or that of the other great men who studied there. After the Pri Chodosh’s premature passing (according to various versions, he was somewhere between the ages of 39 and 46 when he passed away), Rav Yitzchak studied under the new rosh yeshiva, Rav Avraham Yitzchak, the author of the work Zera Avraham, another work well known in Sefardi circles, but that receives reactions of “what is that” among Ashkenazim.

Although Rav Yitzchak Rapaport always viewed himself as a resident of Yerushalayim, he served as the rav of Izmer for forty years, after which he returned to Yerushalayim, and was then appointed chacham bashi of the Holy City and Rishon Letzion. Among the Batei Kehunah’s many brilliant students, both from his period in Turkey and in Yerushalayim, we find an entire generation of gedolei Yisroel: the Maharit Algazi, the Chida, the Shaar Hamelech, the Ma’aseh Rokeach and Rav Mordechai Rebbiyo, the rav and rosh yeshivah of Hevron, author of the teshuvos Shemen Hamor.

Since this is a halachic column, I will discuss some of the interesting halachic positions of the Batei Kehunah, most of which we know because they are quoted by the Chida, who perused the private library of the Batei Kehunah after the latter’s passing in 5515 (1755). The library included notes written in the margins of his seforim, unpublished teshuvos and other private writings and manuscripts that the Chida quoted, predominantly in his Birkei Yosef commentary to the Shulchan Aruch, most of which would otherwise have become lost to future generations.

Fragrances on Motza’ei Yom Tov

Our opening question was: “May I include fragrances as part of havdalah when Yom Tov ends?” Let me explain the background to this question. The Rambam (Hilchos Shabbos 29:28) writes that when Yom Tov falls out midweek, at its end we are not required to recite the berachos on fragrances and on a lamp, unlike what we do every motza’ei Shabbos. The Rambam explains that we recite the beracha on fragrances on motza’ei Shabbos because our souls ache when Shabbos ends, and we provide them with some consolation with the pleasant fragrance. The Magid Mishnah raises the following questions about the Rambam’s statement:

(1) Indeed, why is the custom that we not smell fragrances when Yom Tov ends, just as we do when Shabbos ends?

(2) Why does the Rambam write that “we are not required to recite the beracha on fragrances?” Shouldn’t he write that we do not recite the  beracha on fragrances?

The Magid Mishnah answers that the soul aches only when Shabbos ends, because the sanctity of Shabbos is greater, as evidenced by the fact that we are not permitted to perform any melacha. Since cooking food and similar melachos are permitted on Yom Tov, the soul does not ache when Yom Tov ends.

If this is so, the Magid Mishnah asks, why do we not recite the beracha on fragrances as part of the kiddush/havdalah combination when Yom Tov is on motza’ei Shabbos, since the soul aches that Shabbos has ended? The Magid Mishnah answers that the festive celebration of Yom Tov consoles the aching soul the same way that fragrances would, thus rendering the use of besamim unnecessary. The Magid Mishnah then notes that the Rambam writes, “we are not required to recite the berachos on fragrances” when Yom Tov ends, because one can always take fragrances and recite a beracha before smelling them.

The Yad Aharon questions the wording of the Magid Mishnah that the custom is to not recite the beracha over fragrances as part of havdalah on Yom Tov. Would this not be an interruption in the havdalah, since it is not required?

The Chida (Birkei Yosef 491:3) quotes his rebbe, the Batei Kehunah, who wrote in the margin of his own personal copy of the Rambam that the Magid Mishneh wrote his comments very precisely. There would be no problem were someone to include besamim in his havdalah after Yom Tov. And the reason why the minhag is to forgo the besamim is because the soul does not ache when Yom Tov ends to the same extent that it does when Shabbos ends.

Late Asher Yatzar

At this point, let us analyze the second of our opening questions: How long do I have to recite Asher Yatzar?

The Levush discusses whether someone who does not have a need to relieve himself upon awaking recites Asher Yatzar anyway. He rules that he recites Asher Yatzar, because he undoubtedly relieved himself during the night without reciting Asher Yatzar – thus, he has an outstanding requirement to recite Asher Yatzar. The Adei Zahav, an early commentary on the Levush by Rav Menachem de Lunzanu, disagrees with the Levush, contending that, even if the Levush’s technical assumptions are correct – that we should assume that most people relieved themselves during the night without reciting Asher Yatzar – a person should still not recite Asher Yatzar upon awaking, because the time within which Asher Yatzar must be recited has expired by morning. The Adei Zahav rules that Asher Yatzar must be recited no more than six hours after relieving himself, and during the long winter nights, someone presumably has slept longer than that since he last relieved himself.

What is the source for the Adei Zahav’s ruling that Asher Yatzar must be recited within six hours? The Mishnah (Berachos 51b) states that you can recite an after blessing until the food that was eaten has been digested. The Gemara (Berachos 53b) discusses how long a time this is, Rabbi Yochanan ruling that it is until you are hungry again, whereas Reish Lakish seems to hold that it is the time it takes to walk four mil, which most authorities understand to be 72 minutes. (Some hold that it is a bit longer.) The Adei Zahav assumes that, according to Rabbi Yochanan, it takes six hours for someone to be hungry again after eating a full meal. The Adei Zahav explains that the time for Asher Yatzar, which is a rabbinic requirement, cannot be longer than it is for bensching, which is required min haTorah. Therefore, he concludes that the longest time within which someone can recite Asher Yatzar is six hours after relieving himself.

Never too late

The Yad Aharon disagrees with the Adei Zahav, contending that although an after beracha is associated with the food or beverage that was consumed and, therefore, can be recited only as long as one is still satiated from what he ate, Asher Yatzar is a general beracha of thanks to Hashem and never becomes too late to recite. This approach would explain the position of the Levush that someone can recite Asher Yatzar in the morning, notwithstanding that it might be far more than six hours since he relieved himself.

The Chida, after quoting the above literature, states, “The mofeis of our generation, our master and rebbe, wrote in the margin of his personal copy that the Yad Aharon’s understanding is inaccurate. The rishonim explain that berachos after eating are appreciation… Asher Yatzar is a beracha for the salvation and also for the relief of the discomfort” (Birkei Yosef, Orach Chayim 6:3). Later in his comments, the Chida explains that the Batei Kehunah held that Asher Yatzar has an expiration time, although he never shared with us how long he holds that would be.

There are other reasons to support the Levush’s position that someone should recite Asher Yatzar upon waking in the morning, even if he has no need to relieve himself. The Bach explains that Asher Yatzar should be treated like any other of the morning daily berachos, birkos hashachar, which most authorities assume are recited even if someone did not have a specific reason to recite them – such as, he is not wearing shoes or he is unable to rise from bed. Thus, even if someone had no need to use the facilities upon arising, he still should recite Asher Yatzar in the morning. This position is held by many other poskim, particularly the Rema (Orach Chayim 4:1), although he does not explain why he holds this way (see Magen Avraham 4:2; Elyah Rabbah 4:1; Aruch Hashulchan, Orach Chayim 6:1; Mishnah Berurah 4:3). However, the Levush appears to disagree with this opinion of his rebbe, the Rema, and the Bach, implying that only someone who relieves himself recites the beracha Asher Yatzar, a position held by many other authorities (Arizal; Adei Zahav; Birkei Yosef).

The Levush himself (Orach Chayim 7:3) notes that the laws of Asher Yatzar should not be compared to the laws of berachos on food, since reciting Asher Yatzar is part of nature (we refer in English to a “call of nature”), whereas when and what we eat is an individual’s choice. The Levush and the Elyah Zuta (4: 1) both contend that this last distinction means that there is no time limit for reciting Asher Yatzar; however, the Chida questions whether this distinction makes any difference. In yet a third place (Orach Chayim 47:6 in his sidenote), the Levush again alludes to this topic, contending that, like the berachos prior to studying Torah, Asher Yatzar is not dependent on the time it takes to digest food.

Other acharonim add another idea. The beracha of Asher Yatzar includes an acknowledgement that there are apertures in the body that must remain open. Since this is something that we must acknowledge always, it is always appropriate to recite this beracha. Furthermore, the beracha of Asher Yatzar includes acknowledgement of the removal of ruach ra, which happens when we wash our hands upon awakening and when washing our hands after using the facilities. As such, Asher Yatzar is always appropriate upon awaking in the morning (Bach; Elyah Rabbah).

Among the many opinions explaining the Levush, many differences in halacha result. If the time for reciting Asher Yatzar never expires, someone who forgot to recite Asher Yatzar after relieving himself, when he remembers he should recite Asher Yatzar, regardless of how much time has transpired. According to the Adei Zahav, he should recite Asher Yatzar only within six hours of relieving himself.

Davening Outdoors

At this point, let us discuss the third of our opening questions: “Is it permitted to daven in the courtyard outside a shul?”

Based on a verse in Daniel (6:11), the Gemara (Berachos 34b) rules that a person should daven in a building that has windows. Rashi explains that looking at the sky humbles a person, causing him to daven with greater kavanah. The Gemara then quotes Rav Kahana that davening in an open field is considered an act of chutzpah. Rashi explains that davening in a place that is relatively notexposed, rather than an open field, creates greater fear of the King, and the individual’s stubborn heart is broken.

The poskim explain that this refers to a situation where the person has an alternative. However, someone traveling, and the best place to daven is an open field, may daven there, and it is not a chutzpah (Magen Avraham; Mishnah Berurah).

Tosafos asks: According to the Gemara, when Yitzchak went lasuach basadeh (Bereishis 24:63), he went to pray (Berachos 26b), so how could Rav Kahana call this an act of chutzpah?

Tosafos provides two answers to his question.

(1) Yitzchak went to Har Hamoriyah to daven, which is where the Beis Hamikdash would be built, implying that this is certainly a place that will create greater fear of Heaven and more humility.

(2) Rav Kahana is discouraging davening in an open place, where his prayer may be disturbed by passersby, whereas Yitzchak was in an area where there was no one to disturb him.

According to the second answer of Tosafos, there is nothing wrong with davening in a place that is completely exposed, as long as he is comfortable that no one will disturb his prayers. According to his first answer, this is not true. We should note that Rashi’s reason disagrees with Tosafos’s second answer, and Rashi may accept Tosafos’s first reason (see next paragraph).

The Beis Yosef questions Tosafos’s second answer: why did Rav Kahana say that davening outdoors is a chutzpah? The concern is not of chutzpah, but because he will get distracted. For this reason, he follows the first reason of Tosafos in his Shulchan Aruch, and quotes Rashi’s reasoning: “A person should not pray in an open area, such as a field, because someone in a non-exposed place has greater fear of the King and his heart is broken” (Orach Chayim 90:5). We should note that several prominent poskim provide various explanations why Tosafos was not bothered by the Beis Yosef’s question (see Perisha, Bach, Taz, Magein Giborim, all in Orach Chayim 90).

The Magen Avraham (90:6) adds to this discussion by quoting the Zohar that implies that a person should daven inside a building. The Chida reports to us that the Batei Kehunah wrote a great deal about this topic. He concluded that it is sufficient if the area is enclosed, but it is not necessary for it to be roofed. The Birkei Yosef (Orach Chayim 90:2) notes that great rabbis often pray in the unroofed courtyards of shullen.

The Mishnah Berurah concludes this topic with the following ruling: Notwithstanding that the Shulchan Aruch rejected Tosafos’s approach, many acharonim justify this answer that it is acceptable to daven outdoors in a place where someone will not be disturbed. A traveler may daven outdoors, but should preferably daven under trees, if practical. However, someone who is home should not rely on this, and should daven indoors (Mishnah Berurah 90:11). Thus, it would seem that, according to the Mishnah Berurah, it is incorrect to daven outdoors in the courtyard of a shul when he has the option of davening in the shul itself. On the other hand, Sefardim, who tend to follow the conclusions of the Chida, probably have a strong halachic basis to daven inside gates, even if there is no roof above them, relying on the Chida who followed the ruling of his rebbe, Rav Yitzchak Rapaport, the author of the Batei Kehunah.

Conclusion:

The power of tefillah is very great. Through tefillah one can save lives, bring people closer to Hashem and overturn harsh decrees. We have to believe in this power. One should not think, “Who am I to daven to Hashem?” Rather, we must continually drive home the concept that Hashem wants our tefillos and He listens to them! Let us hope that Hashem will accept our tefillos together with those of all Klal Yisrael!

This Land Is My Land!

Yaakov plans to return to Eretz Yisrael…

Question #1: This Land is My Land!

How do we take possession of Eretz Yisrael?

Question #2: This Land is Your Land

How do you make Eretz Yisrael into “your” land?

Question #3: From California

How far west does Eretz Yisrael extend?

Introduction

In honor of a parsha in which Yaakov must leave Eretz Yisrael, with assurances that future generations will return, it behooves us to emphasize some of the special qualities for which Eretz Yisrael is so famous. Let us begin by mentioning some of the many pronouncements of Chazal regarding the uniqueness of Eretz Yisrael:

Eretz Yisrael was created first, before any other part of the world” (Ta’anis 10b). “Hashem Himself waters Eretz Yisrael directly” (Ta’anis 10b). The Gemara teaches that there was no mabul in Eretz Yisrael (Zevachim 113a). It also states that Eretz Yisrael lacks nothing (Berachos 36b; Yoma 81b; Sukkah 35a).

The centrality of Eretz Yisrael to all our prayers is expressed in the halacha, based on Shelomoh Hamelech’s tefillah when he dedicated the Beis Hamikdash (Melachim 1:8:48; Divrei Hayamim 2:6:38), that we face Eretz Yisrael when we pray (Berachos 30a).

Then there are the many halachic unique qualities to Eretz Yisrael. As we know, most agricultural mitzvos, including bikkurim, terumos, ma’asros, leket, shikcha, peah, peret, oleilus and shevi’is apply only in Eretz Yisrael, and most of the laws of kelayim, orlah, and revai’i apply min haTorah only in Eretz Yisrael.

The Gemara (Sotah 14a) asks: Why did Moshe desire so much to enter Eretz Yisrael? Was it because he wanted to enjoy its fruits? The Gemara answers that he wanted to fulfill the mitzvos that can be observed only in Eretz Yisrael!

There are mitzvos that are not agricultural that can be observed only in Eretz Yisrael. For example, the mitzvah of challah applies min haTorah only to dough kneaded in Eretz Yisrael.

A much more basic mitzvah is the requirement every month to establish and declare which day is rosh chodeshkiddush hachodesh — and to determine each year whether it should be a leap year containing thirteen months — ibur shanah — or a common year containing only twelve months, which requires the decision of a special beis din that meets in Eretz Yisrael (Berachos 63a). Thus, the creation of all our Yomim Tovim is dependent on the sanctity of Eretz Yisrael. (Hillel Hanasi introduced the use of our current calendar, which is based completely on calculation and not on observation. He realized that there would no longer be a beis din in Eretz Yisrael able to fulfill this mitzvah, and, therefore, it was required and necessary to implement a backup calendar with all the decisions predetermined and automatic.)

This land is my land!

An even greater emphasis on the primacy of Eretz Yisrael in keeping all the mitzvos can be noted in the following comments of the Sifrei, Rashi and the Ramban. To quote the Sifrei (Parshas Eikev #43), “Although I am exiling you, you will still be noticeably different because you perform mitzvos. This way, when you return to Eretz Yisrael, keeping mitzvos will not be a novel experience for you. We can compare this to a king who became angry at his wife and sent her back to her father’s house. Yet, at the same time, he instructed her, ‘Remember to wear your royal jewelry, so that upon your return, you will not find it foreign to dress like a queen.’ So, too, the Holy One, Blessed is He, said to Yisrael: ‘My sons, always be distinguished by doing mitzvos so that, when you return, they will not be unfamiliar to you.’” Even non-agricultural mitzvos, such as mezuzah and tefillin, apply in chutz la’aretz in order to keep us in the habit of observing mitzvos (Rashi, Devarim 11:18). From this Sifrei, we see that the primary place for observing all mitzvos, even the non-agricultural ones, is in Eretz Yisrael (Ramban, Vayikra 18:25; see also Ramban, Devarim 11:18).

One of the blessings of Eretz Yisrael is that its air makes one  wise (Bava Basra 158b). The Gemara states that ten units of wisdom arrived in the world and Eretz Yisrael took nine of them (Kiddushin 49b).

Eretz Yisrael is compared to a deer or an antelope. Aside from their natural grace and beauty, these gorgeous creations of Hashem possess a hide that stretches to cover all their innards. When the animal is skinned, its hide shrinks, such that it is hard to imagine how it possibly was sufficient to enclose the animal. Similarly, Eretz Yisrael, which is called eretz tzvi, “the beautiful land,” appears too small to provide residence and sustenance for all its inhabitants, yet it “stretches” to make available everything that all its residents need (Kesubos 112a; Gittin 57a).

How can we demonstrate our love for Eretz Yisrael? The Gemara reports that Rabbi Yosi bar Chanina kissed the gate of Akko, which was the halachic border of Eretz Yisrael in his day (Yerushalmi, Shevi’is 4:7).

This land is your land

How do you make Eretz Yisrael into “your” land?

The Gemara (Berachos 5a) teaches that “three wonderful gifts, olam haba, Eretz Yisrael and Torah, were granted to the Jewish people, but each can be acquired only through difficulties (yissurin).” As anyone who moves to Eretz Yisrael will attest, aliyah never happens without serious hitches. Growth in Torah learning requires much sacrifice, as does achieving the rewards awaiting us in olam haba. All these require major personal investment. But, to the extent that one endures difficulty, he internalizes “possession” of them. Thus, it is impossible to take possession of olam haba, Eretz Yisrael or Torah without encountering and surmounting obstacles on the way.

Taking these ideas further is a statement (Pesachim 113a) that someone who dwells in Eretz Yisrael inherits olam haba. Even more is conveyed by a different passage of Gemara (Kesubos 111a), that someone who walks just four amos in Eretz Yisrael is guaranteed olam haba!

The midrash teaches that five things are more cherished by Hashem than the worlds of heaven and earth that He created. One of these five things is Jews settling in Eretz Yisrael.

The Gemara also states that the shuls andthe batei midrash of chutz la’aretz will be transported to Eretz Yisrael (Megillah 29a).

From California

How far west does Eretz Yisrael extend?

Eretz Yisrael does not stretch as far west as California. Let us briefly discuss the westernmost parts of Eretz Yisrael, as described by various pesukim in Tanach. Every mention of the borders of Eretz Yisrael defines its western border simply as the “Yam Hagadol,” the “Great Sea.” (Although there are seas larger than the Mediterranean, it is called the “Great Sea” because of its relationship to Eretz Yisrael. In other words, it is considered “great” not because of its own qualities — it is “great” because anything associated with Eretz Yisrael is great!)

What about islands in the Mediterranean? Are they part of Eretz Yisrael?

This question is the subject of a dispute among tanna’im. According to Rabbi Yehudah, bodies of land due west of Eretz Yisrael are part of Eretz Yisrael. However, accepted halacha follows the opinion of the chachamim who draw an imaginary line from the northwestern corner of Eretz Yisrael to its southwestern border, Nachal Mitzrayim and include in Eretz Yisrael only islands in that easternmost part of the Mediterranean (Gittin 8a).

Where will I find the northwestern corner of Eretz Yisrael on my map of the Middle East?

From the redwood forest

North of the land that most people identify with Eretz Yisrael are the famous cedars of Lebanon. However, most opinions consider the Promised Land to include current day Lebanon, or at least significant areas of it, as part of Eretz Yisrael. In the various Biblical descriptions of the borders of the Holy Land, we can observe that one location in the north, Har Hahor, figures prominently. First, I must note that the mountain called Har Hahor where Aharon was buried is a different place from the northern boundary marker of Eretz Yisrael. The reason why two different mountains would both be called Har Hahor is because the term means simply “the mountain of the mountain,” what Rashi describes as “an apple situated on top of another apple” — a mountain with a higher vertical rising peak on top. Thus, Har Hahor is as much a description as a name, and refers both to Aharon’s burial place, a mountain outside the southern or southeastern boundary of Eretz Yisrael, and to any one of the many choices suggested for Israel’s northwestern border, where the northern border reaches the sea.

I am aware of at least six different mountains identified as the Har Hahor of the northwestern-most point of Eretz Yisrael. All are mountains located on the eastern Mediterranean coast, all are north of what is today’s modern State of Israel, and each has this feature of a mountain with a mountainous peak rising on top. In other words, all opinions agree that true Eretz Yisrael spreads north of the borders of the current state. Opinions as to how far north will indeed be ultimately “ours” range from Lebanon, all the way up to Turkey. In other words, the consensus is that there are coastal areas north of Rosh Hanikra that are properly part of Eretz Yisrael, yet it is uncertain how far north.

To the Gulf Stream waters

Thus far we have discussed the western and northern borders of Eretz Yisrael; now we will discuss the southern border. In Parshas Mas’ei (Bamidbar 34), the Torah defines the easternmost point of the southern border of Eretz Yisrael to be the Dead Sea (Bamidbar 34:3), and its westernmost point to be Nachal Mitzrayim, the Stream of Egypt. We should first note that Avraham Avinu was promised from “Nahar Mitzrayim, the River of Egypt, whereas in Parshas Mas’ei, we are promised from the Stream of Egypt. Are these the same body of water? Indeed, Targum Yerushalmi explains both terms as referring to the Nile. Others do not. If so, what was Avraham promised, and why did we not receive it?

The Malbim (commentary to Bamidbar 34:2) explains that the borders promised at the end of Parshas Eikev (Devarim 11:24) reflect a promise for the future, when the Jewish people will acquire much more territory than what was possessed in the days of Yehoshua.

According to this approach, no part of Egypt is yet part of Eretz Yisrael. Similarly, others contend that the Stream of Egypt is the Wadi El Arish in the northeastern part of the Sinai Desert, whereas the River of Egypt is the Nile. According to this approach, Avraham Avinu was promised that, one day, his descendants would have much more extensive holdings to the south and southwest than they have ever controlled in history, even after Ariel Sharon crossed the Suez Canal and captured the Egyptian Third Army to end the Yom Kippur War. (The Gulf of Suez and the Suez Canal both lie east of the Nile and the area in between is the breadbasket and cotton growing area of Egypt.) Avraham Avinu was promised the land of ten nations, including Keini, Kenizi and Kadmoni, which Rashi (Bereishis 15:19) equates with Edom, Moav and Amon, but these are not the borders of Benei Yisrael’s territory when we entered the land in the days of Yehoshua. Until the era of moshiach, Klal Yisrael received the land of only seven of those ten nations, the rest going to other family members of Avraham Avinu, including the descendants of Amon and Moav, Avraham’s grandnieces, and of Eisav.

This land was made for you and me!

The Ramban (Devarim 11:24) explains the verses at the end of Parshas Eikev differently, understanding that those borders describe the area that we are commanded to conquer. This is consistent with his opinion that one of the taryag mitzvos requires that we conquer Eretz Yisrael, a topic in which both Rashi and the Rambam appear to disagree with him, and which we will leave for a different time.

I roamed and rambled

On the other hand, some major commentaries interpret the Stream of Egypt of Parshas Mas’ei to be the Nile, not the Wadi el Arish, making the Eretz Yisrael promised to Yehoshua far more expansive in the south and southwest. Since much of Cairo is on the eastern bank of the Nile, this approach considers that part of Cairo to be located in Eretz Yisrael!

I’ve followed my footsteps

Thus far, we have noted that the western border of Eretz Yisrael is the Mediterranean Sea. The middle of Eretz Yisrael originally had a very narrow “waist,” bound on its east by the Jordan River. The lands to the east of the Jordan were chutz la’aretz.

The sparkling sands

How did Transjordan, the land to the eastern part of the Jordan River, become part of Eretz Yisrael?

The answer is that the Benei Yisrael did not have a mitzvah to conquer Transjordan. Klal Yisrael requested permission to travel through the lands of Sichon in order to enter the Holy Land from the east. Sichon came to attack the Benei Yisrael, and, in this battle, Sichon, Og and their entire armies were eliminated. As spoils of war, everything they owned, including their extensive holdings east of the Jordan River, became the property of Benei Yisrael and, henceforth, all the laws of Eretz Yisrael apply. But only because Sichon and Og attacked the Jewish people and not because of any divine promise.

That golden valley

This background introduces a new question: When Dovid Hamelech conquered what the Gemara calls “Suria,” a huge tract of land east and north of the Jordan, the Mishnah and Gemara rule that it did not have the status of Eretz Yisrael because of a principle the Gemara calls: kibush yachid lav shemei kibush, literally, “the conquest of an individual is not considered a conquest.” But why not? What is the difference between Moshe Rabbeinu’s capture of Transjordan from Sichon and Og, which is now part of Eretz Yisrael, and Dovid Hamelech’s capture of Suria, which remains outside Eretz Yisrael? Was Dovid Hamelech’s conquest inferior to that of Moshe Rabbeinu?

Responding to this question created much literature among the rishonim. Among the approaches we find:

1. Dovid Hamelech conquered Suria to be a personal possession and did not involve the entire nation of Yisrael in its conquest (Rashi, Gittin 8b s. v. kivush).

2. The Rambam seems to hold a very similar approach, that conquered land becoming part of Eretz Yisrael is dependent on the involvement of most of the Jewish people, or acting as agency for the Jewish people (Hilchos Terumos 1:2).

3. At the time that Dovid Hamelech conquered Suria, the Benei Yisrael had as yet not taken possession of all of the land that they were supposed to acquire. Once the lands that the Jews were commanded in Parshas Mas’ei have been conquered, any land additionally conquered will have the halacha of Eretz Yisrael, but not land conquered earlier (Tosafos, Gittin 8a s. v. kivush).

Her diamond deserts

Although we have just demonstrated that the lands of Transjordan became endowed with the sanctity of Eretz Yisrael, and that, therefore, virtually all the laws of Eretz Yisrael apply to them, they still are not fully considered the Holy Land. For example, the midrash criticizes the tribes of Gad and Reuvein for prioritizing wrongly when they asked to receive their inherited lands in Transjordan. To quote the midrash (Bamidbar Rabbah, Parshas Matos 22, 7), which compares them to Korach and Haman (!?), “Similarly, we find that the Benei Gad and the Benei Reuven, who were wealthy and owned large herds, cherished their wealth and therefore elected to dwell outside Eretz Yisrael. As a result, they were the first of all the tribes to be exiled, as we are taught (Divrei Hayamim I, Chapter 5).

The wheat fields waving

Of course, we all know that Eretz Yisrael is famous for its seven special fruits — wheat, barley, grapes, figs, pomegranates, olives and dates — and the unique mitzvah, bikkurim, which is performed only with these seven fruits. I know that someone is going to criticize my calling wheat and barley “fruits,” since you will not find them in the produce department of your local supermarket. However, wheat and barley kernels are indeed “fruits,” and this is why the Mishnah frequently refers to them as peiros. We all commemorate this mitzvah annually at the Pesach Seder, when we read the story beginning with the words “Arami oveid avi,” which is part of the recital made by the pilgrim bringing his bikkurim to the Beis Hamikdash.

A voice was sounding

We are meant to be “a light onto the nations,” which charges us with the responsibility to act in a manner that we create a kiddush Hashem. This means we are to live as a nation in Eretz Yisrael following the mitzvos of the Torah that Hashem commanded us individually and nationally, and that only Hashem could have commanded!

The Beis Hamikdash represents our relationship to Eretz Yisrael as being completely dependent on the Torah; this is why the bikkurim must be brought to the Beis Hamikdash and placed alongside the mizbei’ach. Our acquisition of Eretz Yisrael is only for the purpose of observing the Torah.

When Do We Not Make a Beracha on a Fragrance?

The Torah mentions that the caravan on which Yosef was “shipped” to Mitzrayim was laden with pleasant-smelling fragrances…

Question #1: My neighbor has a wonderfully fragrant garden. Do I recite a beracha whenever I visit her and walk through the garden, and, if so, which beracha?

Question #2: On my way to work I pass a spice factory that has a wonderful aroma. Do I recite a beracha every day as I drive by?

Question #3: Someone told me not to recite a beracha on perfume today because the fragrances are synthetic. Is this true?

Question #4: I just adore the smell of turpentine! Do I make a beracha when I smell it?

Answer:

In general one should not benefit from a pleasant aroma without first reciting a beracha. Nevertheless, not all fragrances require a beracha before we smell them. Furthermore, when a beracha is not required, it is forbidden to recite one.

Fragrances upon which one may not recite a beracha fall under three general categories:

I. Forbidden fragrances

II. Fragrances whose purpose is not for pleasurable smelling.

III. Fragrances whose source no longer exists. This would include a case where you put the fragrance into a closed bag, but can still smell the residual aroma in the air outside the bag (Biur Halacha 217:3), or when you enjoy the smell of an empty besamim box.

I. FORBIDDEN FRAGRANCES

One does not recite a beracha on a fragrance that it is forbidden to smell, such as a scent used in idol worship, sorcery or the perfume of an ervah (Rambam, Hilchos Berachos 9:7, based on Berachos 53a). Smelling something used for idol worship is prohibited because one may not have any benefit from idols. Since we are not permitted to smell these fragrances, it is understood why Chazal ruled that one should not make a beracha on them.

One does not recite a beracha before smelling these prohibited fragrances even if a small amount is mixed into a potpourri of other fragrances (Biur Halacha 217:8; cf. Gra ad loc. who implies that if most of the fragrance is from a different source, one should recite a beracha before smelling it. However this is very strange, because the Torah forbids smelling the entire fragrance whenever the prohibited source is discernible.)

WHAT SHOULD I DO IF I PASS AN IDOL AND SMELL INCENSE?

Although this is unusual in America, there are many places in the world where this is a common shaylah. May I walk down this street if I might smell a forbidden fragrance?

According to halacha, I am permitted to walk down the street provided I try not to appreciate the fragrance. The Gemara discusses a category called Hana’ah haba’ah lo le’adam bal karcho, “benefit that a person receives against his will.” Although a person has control over what he eats, he has more limited control over what he smells or hears. If someone is exposed to a pleasurable fragrance that is forbidden according to halacha, there is no violation involved, provided he does not try to enjoy the aroma (Pesachim 25b).

II. FRAGRANCES WHOSE PURPOSE IS NOT TO PROVIDE THE PLEASURE OF SMELLING

“One does not make a beracha on a fragrance unless it was made for the pleasure of smelling” (Shulchan Aruch, Orach Chayim 217:2). One recites a beracha on a fragrance only when it is avida le’reicha, literally, “made for fragrance.”In the words of the Chazon Ish (Orach Chayim 35:1), “Anything that it not specifically meant to smell is not considered a fragrance.” Thus, the definition of the word besamim is something made to provide pleasurable scent and does not include aromas not meant for smelling.

There are several headings of aromatic fragrances that are not for the pleasure of smelling. They include:

A. Deodorizing fragrances

B. Fragrances whose current purpose is not for their aroma.

C. Fragrances whose purpose is to provide aroma to something else.

D. Items that most people do not consider fragrances.

IIA. DEODORIZING FRAGRANCES

One does not recite a beracha before smelling a fragrance whose purpose is to neutralize a bad odor, such as a room deodorizer, deodorant, or oil rubbed on the skin to dispel malodor (Berachos 53a). Even though these items may be highly aromatic, since their purpose is not for enjoyment but to neutralize an unpleasant odor, we do not recite a beracha.

One does not recite a beracha before smelling a room deodorizer, even if he enjoys the aroma and even if he sprayed it in a room without a bad odor or brings it to his nose for a pleasant whiff. Since the deodorizer was made expressly to dispel malodor and not for enjoyment, it is not considered besamim even if the individual enjoys smelling it (Shaar Hatziyun 217:16, based on Shulchan Aruch, Orach Chayim 297:2).

USING OILS AS A DEODORIZER

Some people use pleasant-smelling essential oils to combat malodors. Does one make a beracha before smelling these fragrances?

It depends on why one smells them. If they are functioning as deodorants, then one does not recite a beracha, whereas someone who uses the oil with the intent of enjoying its aroma does recite the appropriate beracha before smelling it (Berachos 53a with Rashi). (See my other articles on this subject on the website RabbiKaganoff.com to know which beracha one recites.)

WHAT DETERMINES WHETHER A FRAGRANCE IS BESAMIM OR A DEODORIZER?

Some items are obviously deodorants or deodorizers and are not besamim. However, the essential oils we mentioned and other fragrances may sometimes be used to deodorize and sometimes for pleasure. What determines whether this particular fragrance is besamim over which we recite a beracha?

The Chazon Ish (Orach Chayim 35:2) explains that the determining factor is why you brought the fragrance to this location. If you brought it for pleasure, it is besamim and you recite a beracha. If you brought the fragrance to neutralize an odor, you do not recite a beracha, even if you are smelling it because you enjoy it.

However, if you removed some of the fragrance permanently to enjoy its aroma, this part becomes besamim and warrants a beracha. The Chazon Ish uses the example of someone who applies fragrant oil to his or her skin. Even if the person originally used the oil to deodorize, if he subsequently sprinkled some onto a handkerchief to enjoy the aroma, he recites a beracha on the sprinkled oil.

IIB. INCIDENTAL TO PURPOSE

We learned above that one does not recite a beracha before smelling a fragrance whose current purpose is not for its aroma. What does this mean?

Imagine yourself outside the production facility of the world’s largest manufacturer of flavors and fragrances. The aroma outside this plant is indescribable — I can tell you because I have been there. Yet the halacha is that one does not recite a beracha on this fragrance. Why not?

The halacha is that someone who enters a spice merchant’s store recites a beracha because the owner wants potential customers to smell his wares so that they will make a purchase (Berachos 53a). If these items are in his warehouse where he is not soliciting customers, one does not recite a beracha (Magen Avraham 217:1).

Why do you recite a beracha on the spices in his store but not those in his warehouse? Because the fragrances in the store are there to be smelled and enjoyed; the ones in the warehouse are not. Thus, the fragrances in the warehouse are not avida le’reicha and are not besamim.

Thus, smelling the most fantastic aroma in the world, from the production facility of the world’s largest manufacturer of pleasant flavors and fragrances, does not warrant a beracha. These fragrances do not qualify as besamim since they are not there for people to enjoy their aroma.

THE SPICE MERCHANT HIMSELF

Does the spice seller himself recite a beracha upon entering his own shop? He does not enter intending to smell fragrant spices in order to decide what to buy. He enters because it is his livelihood. Can a fragrance be avida le’reicha for one person but not for another?

Poskim dispute this question, many ruling that the merchant should recite a beracha since the fragrance has the status of avida le’reicha. Others contend that, for the merchant, the fragrances are merchandise and not avida le’reicha,and therefore he should not recite a beracha (Mishnah Berurah 217:4; Shaar Hatziyun 217:7).

Other poskim present a different reason why the merchant should not recite a beracha on the fragrance. The Taz (217:1) contends that someone recites a beracha over a fragrance only when they demonstrate a desire to smell it, such as by picking up the fragrance and raising it to their nose. The customer who enters the shop recites a beracha because he walked into the shop intending to smell and purchase fragrances — thus, his entry is itself demonstration that he wants to smell the spices; therefore, he recites a beracha. However, the owner’s entry does not demonstrate intent to smell the product. According to this opinion, someone who makes a delivery to a perfumery does not recite a beracha.

On the other hand, most poskim contend that a fragrance that qualifies as avida le’reicha requires a beracha even when not trying to smell it (Pri Megadim MZ 217:1; Shaar Hatziyun 217:4). Later in the article, I will suggest an approach whereby a safek beracha can be avoided.

The same dispute also applies to the neighbors of the perfumery, its workers, and those making deliveries to the shop. According to the Taz’s opinion, only the customers recite a beracha on the magnificent fragrance of the shop, since they come to smell and purchase. Also, if you entered the store specifically to enjoy the fragrance, you recite a beracha according to all opinions.

PUTTING INTO YOUR HAND

Let’s assume you are back in the spice merchant’s warehouse or in the flavor factory and you know that you do not make a beracha on the incredible fragrance that is wafting through the air. What happens if you approach some of the spices to take a pleasant whiff or you lift some of the fragrance in order to smell it? Do you recite a beracha?

The poskim dispute what to do in this case. The Mishnah Berurah (217:1) contends that whenever you do something to smell the fragrance, such as you move towards the fragrance, you lift it up or you place some into your hand, you should recite a beracha. Any act makes the fragrance avida le’reicha.

However the Chazon Ish disagrees, maintaining that, if you will return the fragrance, it is not avida le’reicha and you do not make a beracha (Chazon Ish, Orach Chayim 35:1). The Chazon Ish agrees that if the manufacturer has samples available because he wants people to smell and buy, one does recite a beracha on these samples.

SPICES IN THE KITCHEN

There is a common practical difference in halacha between the approaches of these two gedolim regarding spices in the kitchen. Suppose you want to enjoy the smell of the cinnamon or the oregano on your kitchen shelf. According to the Mishnah Berurah, if you remove a container to smell it, you recite a beracha on the spice, even though you intend to return the spice to the shelf after smelling it. However according to the Chazon Ish, you do not recite a beracha on this fragrance unless you do not intend to cook with it later. (See Shemiras Shabbos K’Hilchasah, Vol. 2, Pg. 262). Someone who wants to avoid the dispute would sprinkle a little bit of spice into his hand and make a beracha on that. Since you are not going to use this spice for cooking, it is besamim according to all opinions and one recites a beracha before smelling it.

Some poskim explain that this opinion of the Chazon Ish is the reason for the widespread minhag to set aside special besamim for havdalah on Motza’ei Shabbos (Shemiras ShabbosKehilchasah, Vol. 2 pg. 262). This is because, according to the Chazon Ish, one does not recite a beracha on a kitchen spice if one intends to cook with it. Only if one removed some of the spice from kitchen use and set it aside for besamim does that spice warrant a beracha.

THE GARDEN

At the beginning of the article I asked, “My neighbor has a wonderfully fragrant garden. Do I recite a beracha whenever I visit her, and, if so, which beracha?” We are now prepared to answer this question.

The fragrant garden itself is avida le’reicha since the owner or gardener presumably planted it in order to benefit from the beautiful aroma. Do we therefore recite a beracha upon entering the garden? According to most poskim, since it is avida le’reicha, one would recite the beracha upon entering the garden, even if he is not entering to enjoy the aroma at all. The beracha will depend on what is growing in the garden, but assuming that there are items growing with different brachos, one should recite Borei Minei Besamim.

However according to the Taz, one recites a beracha only if he wants to smell the fragrance. In order to avoid this shaylah, he should have in mind before entering the garden that he is entering the garden to enjoy the fragrance and recite a beracha immediately before entering the garden, just as one recites a beracha immediately before eating a delicious fruit.

Similarly, someone whose house is permeated with aromatic flowers should recite a beracha before entering the house, since the flowers were acquired with the intention of making the house pleasantly fragrant. However, if the flowers are there only for beauty and their owner was not concerned with their fragrance, then one does not recite a beracha before entering the house. According to the Mishnah Berurah we quoted above, one should recite the appropriate beracha (either Borei Atzei Besamim or Borei Isvei Besamim) before smelling an individual flower. According to the Chazon Ish, it would seem that one should not recite a beracha unless he removed a leaf or trimming from the flowers that he wants to smell.

THE FRUIT MARKET AND THE CONFECTIONER

Does one recite a beracha when entering a fragrant fruit market, since smelling the delicious fruit may entice one to make a purchase? The same question applies to a confectionary store: Does one recite a beracha before entering this store since the delicious smell of all the sweets may entice the customer to purchase?

If indeed the owner feels that the fragrance of his wares encourages people to buy them, then one should recite a beracha before entering. This case is similar to an interesting dispute that we find in earlier poskim.

THE PHARMACY

In earlier days, a pharmacy was a store in which the apothecary sold raw herbs for their medicinal value. The poskim ask whether one recites a beracha before entering the apothecary shop, just as the Gemara says that one recites a beracha before entering the besamim seller’s store.

Some poskim rule that one should recite a beracha before entering a pharmacy because the permeating fragrance encourages people to purchase herbs. Other poskim disagree for an interesting reason — people do not purchase medicinal herbs because of fragrance, but for medical need (see Biur Halacha 217:1). Thus, since healthy people do not make purchases even if the herbs smell pleasant, and sick people will buy even if the herbs are not fragrant, no one is deciding to buy because of the fragrance. Therefore, these herbs are not avida le’reicha.

The Biur Halacha (217:1) compromises between the two positions quoted above. In his opinion, if people use the fragrance to find the location of the store, that is reason enough to make a beracha. However, he points out two other reasons why one should be careful before reciting a beracha.

1. According to the Taz (mentioned above) one does not recite a beracha unless one intends to smell the fragrance.

2. One should recite a beracha only if the fragrances are open. However, if the herbs are all in closed bags, but the air is fragrant from when the bags had been open previously, this is considered a rei’ach she’ein lo ikar, upon which one does not recite a beracha.

Thus upon entering a fragrant fruit store, one should recite Hanosein Rei’ach Tov Bapeiros and then intend to enjoy the fragrance, since the fruits are always out in the open to encourage people to buy them.

It is uncertain whether the same halacha applies to a florist’s shop. Flowers today are not cultivated for fragrance, and most people purchase flowers because of beauty, not fragrance. However, if there is a florist who feels that customers purchase because of fragrance, one should recite Borei Minei Besamim and enjoy the fragrance.

IIC. Fragrances whose purpose is to provide aroma to something else.

In the time of Chazal, it was common to burn incense in order to give clothing or dishes a pleasant fragrance. The Gemara (Berachos 53a) mentions that one does not recite a beracha when smelling this beautiful aroma because its purpose is not for the fragrance itself.

When showing a house for sale, some people toast cinnamon in the oven or open essential oils and other fragrances around the house to make the house more appealing. Since the purpose of these fragrances is to give the house a pleasant aroma and not to entice people either to smell or to purchase the fragrance, one does not recite a beracha.

IID. Items that most people do not consider fragrances.

There are items that some people enjoy smelling, but most people do not consider fragrant. One should not recite a beracha before smelling such an item.

Examples: The poskim dispute whether one recites a beracha on freshly baked bread. Those who contend that a beracha is ont recited opine that this is not a fragrance significant enough to warrant a beracha (Beis Yosef, Orach Chayim 216; Rema). Thus, some people enjoy smelling certain plants or herbs whereas other people do not. If most people do not consider a particular smell to be a fragrance, you should not recite a beracha even if you enjoy it.

TURPENTINE

Question #4 above, was: “I just adore the smell of turpentine! Do I make a beracha when I smell it?”

Dear reader, how would you please answer this shaylah?

Perfumeries do not sell turpentine as a fragrance. Hardware stores sell it as a solvent and paint thinner. Many people consider the odor of turpentine pungent and not fragrant. Since most people do not consider turpentine to be a fragrance, one should not recite a beracha before smelling it.

III. Ein lo ikar – A fragrance whose source no longer exists.

In the case mentioned above where one burns incense to impart aroma onto clothing ordishes, one does not recite a beracha on the clothing afterwards, because the fragrance has no ikar (Rambam, Hilchos Brachos 9:8). For this reason, one does not recite a beracha on a bag that has a pleasant smell because it once held fragrance, or when you can still smell the residual aroma that is in the air after a spice has been put into a closed bag

(Biur Halacha 217:3).

SYNTHETIC FRAGRANCES

Some poskim contend that one does not make a beracha on a synthetic fragrance (Rav Shelomoh Zalman Auerbach, quoted in Shemiras Shabbos Kehilchasah, Vol. 2, Pg. 263 note 32). Apparently, they hold that one can recite a beracha only on a fragrance whose source was originally besamim. However most poskim dispute this ruling, contending that a fragrance should not be different from a “synthetic food” — a food made from a non-food substance, such as alcohol or vinegar whose source is petrochemical — which is very common today.

This situation is very common today, since most inexpensive fragrances and perfumes are synthetic. Because of the above dispute, if I have a reason to smell a synthetic fragrance I try to recite a beracha on a different fragrance whose beracha is Borei Minei Besamim, such as cloves or cinnamon, and thereby be motzi the synthetic fragrance. (Neither of these options will work for Sefardim, since they usually recite Hanosein Rei’ach Tov Bapeiros oncloves and Borei Atzei Besamim on cinnamon.)

As a quick review, we do not recite a beracha on the following categories of fragrances:

Those that we are not permitted to smell.

Deodorizers.

If the fragrance is incidental to the item’s main purpose or if it provides aroma to something else.

Items that most people do not consider fragrances.

Where one does not smell the source of the fragrance.

Some poskim hold that we should not recite a beracha on a synthetic fragrance.

EXPRESSIVE FRAGRANCE

In a monumental essay, Rav Hirsch (Breishis 8:21) explains that the expression rei’ach nicho’ach, usually translated as “a pleasant fragrance,” should more accurately be rendered “an expression of compliance.” He demonstrates that the word nicho’ach means “giving satisfaction,” and the concept of rei’ach is used because fragrance implies receiving a very slight impression of something that is distant. Thus, when a korban is offered as a rei’ach nicho’ach, it means that it shows a small expression of our fulfilling Hashem’s will. Similarly, our attempt to observe correctly the halachos of brachos on fragrances demonstrates a small expression on our part to praise Hashem for even His small kindnesses to us.

image_print