Calendar Controversy

When Yamim Nora’im “Fell” on Disputed Days

In the year 4681 (920), the greatest halachic authority in Eretz Yisrael, Rav Aharon ben Meir, proclaimed that the months of Marcheshvan and Kislev of the coming year (4682) would both have only 29 days. As a result, the next Pesach (4682) would begin on a Sunday and end after Shabbos, in Eretz Yisrael, and after Sunday, in Chutz LaAretz.

Prior to Ben Meir’s proclamation, all had assumed that Marcheshvan and Kislev that year would both be 30 days long, which would result in Pesach beginning two days later — on Tuesday, and ending on Monday, in Eretz Yisrael, and on Tuesday, in Chutz LaAretz. Thus, Ben Meir was pushing Pesach forward two days earlier than anticipated. Those communities that followed Ben Meir would eat chametz when it was still Pesach according to the original calculation!

Just as shocking, Rosh Hashanah and Yom Kippur of 4683 would also be two days earlier. Ben Meir’s ruling had Rosh Hashanah beginning on Tuesday and Yom Kippur observed on Thursday. The original calculation had Rosh Hashanah on Thursday, and Yom Kippur falling on Shabbos.

That year, most communities in Eretz Yisrael and Egypt observed Pesach, Yom Kippur and Rosh Hashanah following Ben Meir’s calendar; the communities of Syria, Bavel (today’s Iraq), Europe and the rest of North Africa observed these Yomim Tovim two days later!

Thus, on Shabbos before Sukkos of 4683, Ben Meir’s followers were reading parshas Ha’azinu and enjoying their Shabbos repasts; the other communities were fasting and observing Yom Kippur!

Why did Ben Meir observe the calendar differently? Why was his opinion rejected?

Creation of the Jewish Calendar

Our current Jewish calendar was instituted in the fourth century by Hillel Hanasi (not to be confused with his ancestor, the Tanna, Hillel Hazakein. Historians call Hillel Hanasi either Hillel the Second or Hillel the Third, but I will refer to him the way the Rishonim do.) Prior to this time, the Nasi of the Sanhedrin appointed special batei din that were in charge of determining the Jewish calendar, which included two areas of responsibility:

·         Determining whether each month is 29 or 30 days.

·         Deciding whether the year should be made into a leap year by adding the month of Adar Sheini.

A beis din of three judges representing the Sanhedrin, the main beis din of klal Yisrael, would meet on the “thirtieth” day of each month to determine whether this day was Rosh Chodesh and the previous month was only 29 days, or whether to postpone Rosh Chodesh to the morrow, which would make the day on which they met the last day of a 30-day month.

The determination of which day was Rosh Chodesh was based heavily, but not exclusively, on whether witnesses appeared in the special beis din on the thirtieth day to testify that they had witnessed the new moon.

In addition, the head of the Sanhedrin appointed a panel of judges who met during the winter months to deliberate and decide whether the year should have an extra month added and become a leap year. Many factors went into their considerations, including the weather, the economy, the condition of the roads, the shmittah cycle and, of course, whether the Jewish calendar year was early or late relative to the annual solar cycle.

In Eretz Yisrael

The Gemara (Berachos 63) states unequivocally that as long as there is a beis din in Eretz Yisrael that is qualified to establish the calendar, no beis din elsewhere is authorized to do this.

This system worked well for thousands of years – from the time of Moshe Rabbeinu until about 300 years after the destruction of the Beis Hamikdash, which was during the time that the Gemara was being written. However, by this time, severe Roman persecutions took a tremendous toll on the Jewish community in Eretz Yisrael, and its yeshivos suffered terribly.

It was at this time that the head of the last main beis din functioning in Eretz Yisrael, Hillel Hanasi (usually assumed to have been a great-grandson of Rabbi Yehudah Hanasi), established the Jewish calendar as we currently observe it. In establishing this calendar, Hillel Hanasi resolved that whether a year would be a leap year or not would be determined by a cycle of 19 years that includes a set schedule of 7 leap years.

He also decided that the months of Tishrei, Shevat, Adar Rishon (when there is one), Nissan, Sivan and Av are always 30 days, whereas Teves, Adar (or Adar Sheini), Iyar, Tammuz and Elul are always only 29 days. The two months of Marcheshvan and Kislev would vary each year, depending on when the next year’s Rosh Hashanah should be. The latter was based on a calculation of how long we estimate the moon to orbit the earth and decisions made by Hillel Hanasi regarding on what days of the week the Tishrei holidays should fall.

Hillel Hanasi’s established calendar allowed that a Jew anywhere in the world could make the calculations and determine the Jewish calendar. All he needs to know is the pattern of the 19-year cycle, and the information necessary to determine how long the months of Marcheshvan and Kislev are in a given year.

One noteworthy point is that, originally, each month’s length was determined primarily by the witnessing of the new moon, whereas in the calendar created by Hillel Hanasi, the length of the months is predetermined, regardless of when the new moon appears. Only Rosh Hashanah is determined by the new moon, and, even then, there are other considerations.

History has proved the unbelievable clairvoyance of Hillel Hanasi’s calendar. To understand what he accomplished, note that, at the time of Ben Meir, almost 600 years had passed since Hillel and Jewish communities had scattered across the entire known world. There were already, at this time, Jewish communities strewn throughout Europe and North Africa, what eventually developed into the Ashkenazim and the Sefardim, and throughout the Middle East and central Asia.

Yet, wherever Jewish communities lived, they observed the same Jewish calendar, whether they lived under the rule of Christians, Moslems or Zoroastrians. It is a fascinating historical fact that, although there was no absolute central authority to determine Jewish observance, Jewish communities that were spread out everywhere observed and continue to observe the identical calendar, without any error or dispute, probably without a single exception, other than the one incident we are discussing!

The Controversy

Rav Ben Meir was, without question, a gadol  be’Yisrael who, in any other generation, might have been the gadol hador. However, Hashem placed him in the same generation as one of the greatest talmidei chachamim in history, Rav Saadia Gaon.

Rav Ben Meir held that all of the Jewish people were bound to follow his ruling regarding Klal Yisrael’s calendar, since his beis din was the most qualified one in Eretz Yisrael. He contended that the final decision on determining the calendar still rested among the highest halachic authorities in Eretz Yisrael, and that Hillel Hanasi’s calendar had not changed this.

At the time of Hillel Hanasi, the Jewish community in Bavel had surpassed that of Eretz Yisrael, both numerically and in scholarship, producing the greater talmidei chachamim. This is why the period of the Amoraim essentially ended earlier in Eretz Yisrael than in Bavel, and why the Talmud Bavli is more authoritative than the Talmud Yerushalmi. The main headquarters of Torah remained in Bavel for hundreds of years, including most of the period when the Gaonim headed the yeshivos of Sura and Pumbedisa in Bavel.

However, at the time of this controversy, both yeshivos, Sura and Pumbedisa, were weak, and Rav Aharon Ben Meir, who headed his own yeshivah in Eretz Yisrael, surpassed in learning the heads of both Babylonian yeshivos.

Enter Rav Saadia

At the time of the dispute, Rav Saadia Gaon was only 29 years old. Virtually nothing is known of his rabbei’im. We know that he was born in Egypt, probably the second largest Jewish community at the time (after Bavel). At about 23 years old, probably already the greatest Torah scholar of his era, he traveled eastward, visiting the various Jewish communities of Eretz Yisrael, Syria and eventually Bavel, becoming very familiar with the scholars there. Although very young, we see from later correspondence that he already had many disciples prior to leaving Egypt, with whom he maintained contact after he left.

Pronouncing his Verdict

About a year before he changed the accepted calendar, Ben Meir announced his plans. At the time, Rav Saadia was in Aleppo, Syria. When he heard of Ben Meir’s intentions, Rav Saadia immediately addressed a succession of letters to Ben Meir, explaining that the established calendar was correct and should not be tampered with. Simultaneously, the authorities of Bavel addressed a letter to Ben Meir, written with tremendous respect and friendship, but sharply disputing his halachic conclusions.

Apparently, Ben Meir was unimpressed by the letters from either Rav Saadia or from Bavel. It appears that he then formalized his planned calendar change with a pronouncement made on Hoshanah Rabbah, from Har Hazeisim. Because of its proximity to the Beis Hamikdash, the Torah leaders of Eretz Yisrael held an annual gathering on Har Hazeisim to perform hoshanos. At the same time, they used the occasion to discuss whatever issues faced their communities and decided on plans and policies. Apparently, Ben Meir used this opportunity to announce the decision of his beis din to adjust the calendar in the coming year.

Indeed, the communities of Eretz Yisrael, and several (if not all) of those in Egypt followed Ben Meir’s ruling and kept 29 day months for both Marcheshvan and Kislev.

After the two questionable roshei chadashim had passed, we find correspondence between Bavel and Eretz Yisrael, but now the letters are more strident. By this time, Rav Saadia had arrived in Bavel, and the next correspondence includes letters from the established leaders of Bavel to Ben Meir strongly rebuking his decision. Apparently, these letters were signed not only by the elders and scholars of the Bavel community, but also by a young Egyptian newcomer — Rav Saadia.

At the same time, the leadership of Bavel as well as Rav Saadia addressed circulars to the various Jewish communities, advising them to observe the established calendar, not that of Ben Meir.

Rav Saadia wrote his disciples in Egypt, advising them that all the leaders of Bavel had concurred to follow the old calendar and to proclaim Marcheshvan and Kislev as full months and to observe Pesach, Rosh Hashanah, Yom Kippur and Sukkos accordingly. In his own words:

Close this breach! Do not rebel against the command of Hashem. None of the people would intentionally work on Yom Tov, eat chametz on Pesach, or eat, drink or work on Yom Kippur. May it be the will of Hashem that no stumbling block be placed in your community nor anywhere else.

Rav Saadia was barely 30 years old and already he was viewed with such esteem that the established Torah leadership of Bavel requested that he join them in their correspondence on the issue!

Ben Meir’s Retort

In reaction to the initial letters from the Gaonim and from Rav Saadia, Ben Meir sent his son to Yerushalayim to announce, once again, his planned calendar change. Ben Meir also wrote, in an aggressive and disrespectful tone, that final authority in all matters of the calendar lies with the Torah leadership of Eretz Yisrael. At this point, he began to write disparagingly about his antagonists.

Pesach was approaching and communities were bewildered as to what to do. Rav Saadia wrote a second letter to his disciples in Egypt. It should be noted that, notwithstanding the personal attack leveled against him by Ben Meir, Rav Saadia dealt specifically with the issue and refrained from any remark belittling his detractor.

Why did Rav Saadia not accept Ben Meir’s assertion that the Torah leadership of Eretz Yisrael had the final say about these matters?

Rav Saadia wrote that Ben Meir’s calculations were mistaken. The calculations that we use are all based on an old mesorah from Sinai, as can be demonstrated from the Gemara (Rosh Hashanah 20). Thus, this is not a matter of opinion, but an error. Rav Saadia rallied support from the fact that, since the days of Hillel Hanasi, no one had questioned the accuracy of the accepted calendar.

Two Different Pesachs

Indeed, that Pesach, many communities followed Ben Meir, while others followed Rav Saadia and the Gaonim of Bavel. The controversy continued the next year, through the disputed Rosh Hashanah, Yom Kippur and Sukkos.

History has not bequeathed to us the final steps of this controversy, yet we know that, by the next year, the logic of Rav Saadia’s responsa swayed the tide against Ben Meir’s diatribes, and Rav Saadia became accepted as the gadol hador and its final arbiter in halacha.

Ben Meir blamed Rav Saadia for torpedoing his initiative, which probably is true. History knows nothing more of Ben Meir after this episode, and of no community that subsequently followed his approach. His opinion on any halachic matters is never quoted by later authorities.

Six years later, Rav Saadia was asked to assume the position of Gaon of Sura, the only time in history that the position was granted to an “outsider.” Indeed, we have Rav Saadia to thank that the Jewish world, everywhere, always observes Yomim Tovim on the same day.

Pruzbul

Foreword

As I discussed in a previous article, the mitzvah of shemittas kesafim comes into effect this year immediately before Rosh Hashanah. This law cancels all debts that someone is owed, meaning that the creditor cannot force collection.

Notwithstanding the mitzvah of shemittas kesafim, the Torah commands a lo sa’aseh, that states: “Be careful, lest (hishameir lecha pen) a wicked idea enter your heart, saying, ‘The seventh year, the year that releases, comes near’ and your eye disdains your brother, the pauper, and you fail to give him” (Devarim 15:9). Technically, the words “Be careful, lest” qualify as a mitzvas lo sa’aseh (Eiruvin 96a), although this mitzvah requires a positive action — to lend, notwithstanding the approaching deadline that will release the borrower from liability. This is in addition to the mitzvas aseih, the positive mitzvah, in effect at all times, to lend money whenever we are able.

Unfortunately, Jews violated both mitzvos and stopped lending money out of concern that they would not be repaid after the shemittah year. Since this violates a Torah law, Hillel felt the responsibility to create a system that allows loan collection, notwithstanding that shemittah has passed. The vehicle he created is called a pruzbul. The origin of this word is two Aramaic words that mean “benefit for the wealthy” (Gittin 36b). The Gemara notes that a pruzbul benefits both wealthy and poor – the wealthy, because it allows them to collect loans, and the poor, because they can now borrow money when needed.

To quote the two places where the Mishnah introduces pruzbul: “Hillel established the pruzbul as a tikun olam” (Gittin 34b). “A pruzbul is not released [by the shemittah year] — this is a takkanah established by Hillel the Elder, when he realized that people were refraining from lending money, and were thereby violating what the Torah commands, ‘Be careful lest…’ (Devarim 15:9), Hillel established the pruzbul (Shevi’is 10:3).”

How could he?

By what means could Hillel change the law that the Torah established? The Gemara (see Rashi) presents two options:

(1) The tanna,Rebbe, contends that shemittas kesafim applies min haTorah only when the laws of yoveil apply. Hillel held like Rebbe that shemittas kesafim is only a rabbinic rule today — since the mitzvos of yoveil do not apply until the tribes all return to their lands. Chazal have the ability to suspend rabbinically declared laws (Gittin 36a).

(2) The Torah provides batei din with the ability to declare property ownerless. This ability, called hefker beis din hefker, allowed Hillel to require borrowers to pay their debts that would otherwise have been released by the mitzvah of shemittas kesafim.

How did he?

How does a pruzbul work?

According to most rishonim, the technical way a pruzbul operates is as follows: Min haTorah, the prohibition of shemittas kesafim exists only when an individual demands payment, but not when a beis din does. This halacha is implied by the words in parshas Re’eih (Devarim 15:2): “Every creditor must release his hand from what his fellow owes him. He may not demand payment from his fellow or from his brother, because he has declared a release for Hashem.” These words teach that the prohibition of shemittas kesafim applies only to an individual, not to beis din (Sifrei). Thus, min haTorah, there is a relatively simple way to avoid violating the prohibition of shemittas kesafim. Before this law takes effect at the end of shemittah year, the creditor transfers his loans to beis din (Mishnah, Shevi’is 10:2; however, cf. Rashi, Gittin = and=, who appears to understand the topic differently), thereby authorizing the beis din to collect the debts. Now that the debts are in the hands of beis din, shemittas kesafim does not apply, and the debts can still be collected.

Min haTorah, this process requires the creditor to hand over his loan documents to the beis din. If the creditor does not have the documents, he does not give them to beis din, or the loans were not made in writing, the creditor cannot use this heter to avoid shemittas kesafim. The pruzbul allows the transfer of the debts to the beis din without physical movement of any documents, or even if there are no documents.

As the Yerushalmi expresses it, pruzbul allows transferring documents that a creditor has in Rome. (An alternative interpretation understands this passage of Yerushalmi to mean that a creditor in Israel may transfer his loans to a beis din in Rome, even though at the time of the Yerushalmi, PayPal had no business operation yet in either Israel or Italy. We will return to these two interpretations of the Yerushalmi.)

Non-written loans

Thus, pruzbul works for loans created in the presence of witnesses, even when no written contract was drawn up (Rema, Choshen Mishpat 67:19 and Sma; see Urim).

Non-pruzbul

We should note that, even without pruzbul, there are at least four ways whereby a creditor may avoid violating shemittas kesafim. Apparently, people were not utilizing these methods, and therefore Hillel created a simpler vehicle to avoid the prohibition. I will utilize an acronym BACK — whereby debts must still be paid BACK, notwithstanding the mitzvah of shemittas kesafim:

(1) Beis din

As explained above, the creditor delivers his loan documents to a beis din; collection of the debts is through beis din (Rambam, Hilchos Shevi’is 9:15; Rashi, Gittin 36a).

(2) After – payable after shemittah

Although this ruling is disputed in the Gemara, the accepted halacha is that shemittas kesafim applies only to a loan that could be collected, at least in theory, at the end of the shemittah year (Shulchan Aruch, Choshen Mishpat 67:10). Thus, a simple way for someone to lend money and avoid shemittas kesafim is to schedule the loan’s due date for after shemittah year (see Makkos 3b). Of course, by doing this, the creditor forfeits any right to collect the loan earlier. In addition, this suggestion will not help if the loan is overdue and the borrower has not been paying, whether his delay is because he is without funds or because he chooses to be a deadbeat.

(3) Condition

There is a technical way that, when the loan is originated, it can be made conditional to be payable even after shemittah ends. Because of space considerations, I am unable to explain this in the current article.

(4) Kollateralized

You are correct, it should be collateralized, but I think that you’ll remember BACK better than BACC.

At the time of the loan, the creditor can insist on receiving collateral (a mashkon) [Gittin 37a] that is worth more than the loan. Some authorities contend that shemittas kesafim does not apply even if the mashkon is worth less than the loan (Shmuel in Yerushalmi, Shevi’is; Rashi, Bava Metzia 49a; Rash, Shevi’is 10:2, in his explanation of Shavuos 44b). These authorities hold that the existence of a mashkon automatically exempts a loan from the rules of shemittas kesafim. The reason why a mashkon exempts the loan from the mitzvah of shemittas kesafim is because the loan is considered already collected.

The Shulchan Aruch cites both of the opinions I quoted, but rules, according to the first opinion, that the mashkon preempts shemittas kesafim only when it is at least as valuable as the amount loaned (Choshen Mishpat 67:12).

Paying BACK (or BACC)

Now that we know about these four options, we realize that the creditor can easily arrange matters such that shemittas kesafim is avoided. Nevertheless, Hillel realized that people were not utilizing these methods to guarantee return of their funds, but instead, they were refraining from lending money — thus violating both an aseih and a lo sa’aseh. This necessitated the new takkanah of pruzbul.

What type of beis din?

As explained above, the legal vehicle whereby a pruzbul works is that the loan is transferred to a beis din, which avoids the prohibition of shemittas kesafim. The Mishnah (Shevi’is 10:4) states: “This declaration is the essence of a pruzbul: ‘I transfer to you, dayanim xxx of community y, any loan that I am owed, such that I can collect it whenever I want to.’”

We may have noticed that beis din is involved in the din of pruzbul in two ways:

(1) The Torah exempts loans owed to a beis din from the mitzvah of shemittas kesafim.

(2) Transferring the ownership of the debt to beis din may require utilizing the principle of hefker beis din hefker, which is a legal concept that requires a beis din to implement.

This brings up a new question (Gittin 36b). The Gemara states that a pruzbul can be created only by a high-level, established beis din, such as that of the renowned amora’im, Rav, Shmuel, Rav Ami or Rav Asi. Why can only these gedolei Yisroel create a pruzbul? Because the ability to declare someone’s property ownerless, hefker beis din hefker, is not granted to just any beis din (Sma 67:36).

Technically speaking, three learned, adult, male Jews can form a beis din. For laws such as hataras nedarim, releasing someone from vows, we follow this practice. Is the same type of beis din valid for creating a pruzbul? The Gemara quoted above disagrees — not every beis din may create a pruzbul, only one in the league of Rav, Shmuel, Rav Ami and Rav Asi. This implies that even a beis din experienced in dinei Torah may not issue a pruzbul. Several rishonim, including the Rambam and Rabbeinu Tam, conclude that only an exceptionally regarded beis din may issue a pruzbul. This is also the conclusion of the Shulchan Aruch: “A pruzbul may be written only in a prominent beis din, meaning, three experts who know halachic civil law, the laws of pruzbul and shemittah and were appointed judges by the community of their city” (Choshen Mishpat 67:18).

Nevertheless, the accepted practice among Ashkenazim follows the Rosh (Gittin 4:13), who understands that the Gemara later reevaluates this decision, and that is the conclusion of the Rema (Choshen Mishpat 67:18). Common contemporary Ashkenazic practice is that the three “dayanim” who perform hataras nedarim on erev Rosh Hashanah sign someone’s pruzbul.

From a distance?

May the creditor transfer the loans to the beis din without appearing before them, by declaring in front of witnesses, “I am transferring all loans that are owed me to beis din, consisting of dayan D1, dayan D2 and dayan D3, in city C?” If you follow the Ashkenazic practice that a pruzbul may be issued by any beis din, this question is not that serious, unless you intend to spend all of Elul outside any Jewish community. However, for those who follow the Shulchan Aruch’s ruling, this is a very practical concern, since a pruzbul may be issued only by a major beis din. Must the creditor appear in front of the beis din for them to issue a pruzbul, or is it sufficient that he declare in front of witnesses that he is transferring all debts he is owed to a major beis din?

The Mordechai (Gittin #380) cites this question as a dispute between himself and Rabbeinu Yechiel, in which Rabbeinu Yechiel required the declaration to be in the presence of the beis din, whereas the Mordechai ruled that it is adequate for the creditor to declare to the witnesses that he transfers his loans to the beis din. The Shulchan Aruch mentions both opinions (Choshen Mishpat 67:19 and 21), concluding (Choshen Mishpat 67:19) that he must make this declaration directly to the beis din, an approach accepted by both the Sma and the Tumim (67:21). The Rema (Choshen Mishpat 67:20) concludes that it works even if he is not in front of beis din.

Remember Rome!

Or, more accurately, remember the passage of the Yerushalmi (Shevi’is 10:2), regarding Rome! That Yerushalmi states that a pruzbul can transfer what is nesunin beRomi, “located in Rome.” If nesunin beRomi refers to the location of the dayanim, the creditor may transfer loans to a beis din hundreds of miles from where he is, as concluded by the Mordechai and the Rema. On the other hand, if the Yerushalmi is referring to loan documents in Rome, all we can prove is that pruzbul permits the transfer of loans, without the creditor handing his documents physically to the beis din.

One pruzbul covers all

A creditor need make only one pruzbul, regardless as to how many outstanding debts and debtors he has. This is because the pruzbul transfers all the loans he is owed to the beis din.

Oral pruzbul

Must a pruzbul be written down, or can it be an oral declaration, without a written form? The Shulchan Aruch implies that, in normal circumstances, it should be a written document, whereas the Rema rules that it can be performed orally (Choshen Mishpat 67:20). Accepted custom is to make a pruzbul into a simple, written form, although the exact text may vary, often dependent on some of the halachic issues we have discussed in this article.

Postdated pruzbul

A pruzbul transfers to the beis din any outstanding debts that exist at the time that it is made. It cannot transfer a debt that does not yet exist. Therefore, if a creditor made a pruzbul on the 20th of Elul, and then loaned someone money on the 23rd, shemittas kesafim will take effect on this loan. As a result, a postdated pruzbul, such as one transacted on the 20th of Elul, but dated the 29th, is invalid, since it might be used as proof that a loan made between these two dates was transferred to beis din when it wasn’t (Mishnah, Shevi’is 10:5).

On the other hand, a predated pruzbul is perfectly valid. Dating it earlier than necessary only causes a potential loss to the creditor, since it cannot prove that he transferred to beis din a loan that took place after the date written on the pruzbul. Since the creditor would be harming only himself with such a pruzbul, a predated pruzbul is valid (Shulchan Aruch, Choshen Mishpat 67:32 and Sma there #54).

Borrowing tenants

The Mishnah states that a pruzbul is written only when someone owns land (Shevi’is 10:6). Who must own land? The borrower must be someone who owns or has a right to some land.

However, this does not mean that a creditor cannot create a pruzbul to collect from someone who rents an apartment. A tenant has a right to his apartment, and this is adequate “land ownership” for a pruzbul to be effective. Even if the only land right a person has is that he has borrowed an area upon which his stove rests, he has enough “land ownership” to be included in a pruzbul.

Potential lenders solicited by someone homeless, who are concerned that a pruzbul will not guarantee their loan – be aware that Hillel took you into consideration, although the explanation as to how this pruzbul needs to be made is beyond the scope of this article. If you have loaned money to someone who has no rights to any landed property, ask your rav or posek how to make your pruzbul credit-worthy.

Why land?

Why does a pruzbul work only if the debtor has land?

According to Rashi (Gittin 37a s.v. ela), this is because most people who borrow money have land to serve as understood collateral. Any serious loan will require some means of guaranteeing collection, and chattel can easily “disappear.” Therefore, a loan made for a borrower who has no real estate at all is so uncommon that Hillel felt no need to make a pruzbul to cover this situation.

The Rash (Shevi’is 10:6) offers a different suggestion why land ownership is an essential component for a pruzbul: A loan turned over to beis din is exempt from shemittas kesafim since it is as if beis din has already collected the debt — there is nothing preventing them from taking the land for collection.

Lost my pruzbul

The Mishnah (Kesubos 89a) implies that a creditor who comes to beis din after shemittah year and claims that he made a pruzbul must bring evidence that he did so. However, the Gemara (Gittin 37b) notes that the amora’im,Rav and Rav Nachman, followed the opinion of a different tanna, in a beraisa, who disagreed. Most rishonim accept their ruling that someone who claims to have made a pruzbul may collect his debt after shemittah (see also Shulchan Aruch, Choshen Mishpat 67:33). The reason is that we assume that a frum Jew would not violate the Torah when he can accomplish something in a permitted way (Sma 67:55). According to all authorities, the lender may not claim to have made a pruzbul if he did not, and it is theft to do so. It also violates the mitzvah of shemittas kesafim, releasing his loans at the end of shemittah year.

Conclusion

Why do people view loaning money as an optional “good deed” rather than as a commandment? The Chofetz Chayim (Ahavas Chesed 2:8) raises this question and mentions several excuses people make to avoid lending money. After listing these reasons, the Chofetz Chayim proceeds to refute each one of them. Simply put, the answer to this question is an old Yiddish expression, Ven kumt tzu gelt, es iz an andara velt, “When dealing with money, people approach matters in a completely different way,” and, if I might add my own commentary, often not in a very rational way. People find it difficult to part with their money, even temporarily. This is precisely why one receives such immense reward for lending. As Pirkei Avos teaches us, lefum tza’ara agra, “we are rewarded in direct relationship to the level of discomfort we feel when observing the mitzvah.”

Otzar Beis Din or Heter Otzar Beis Din?

An Otzar Beis Din is literally “a storehouse operated by Beis Din.” Why would Beis Din operate a warehouse? Before explaining more fully the true purpose of an Otzar Beis Din, which is a halachically approved method of distributing shemittah produce, we must first review the halachos of shemittah. These rules fall under two general categories:

(1)   Laws of the Land

The Torah teaches that every seventh year is shemittah, and we are prohibited from working the land of Eretz Yisrael. One may not plow, plant, prune, or harvest one’s grapevines as an owner, or perform most other agricultural work. Furthermore, one may not allow one’s land to be worked during shemittah, even by a non-Jew.[1] One may perform activities whose purpose is to prevent loss, such as watering plants and trees so that they do not die.[2]

The landowner may not treat what grows during shemittah as his own; rather, he must allow others to enter his field or orchard and help themselves. They may take only as much as their family will eat, and the landowner himself may also take this amount.[3] One may not sell shemittah produce in a business manner.[4]

(2) Laws of the Fruit

Shemittah produce is imbued with special sanctity called kedushas shevi’is. The Torah provides specific rules that govern how one treats such produce. These laws fall under the following categories:

a.       Commerce with Shemittah Produce

One must be careful not to sell shemittah produce in a way that implies that one is its true owner. For this reason, shemittah produce may not be sold by weight or measure[5] nor sold in a regular store.[6] Instead it should be distributed in a way that implies that this is a division of produce rather than a sale.

One may not export shemittah produce to chutz la’aretz.[7] The later poskim even dispute whether one may ship esrogim to chutz la’aretz for people to fulfill the mitzvah of Arba Minim.[8]b.      Sefichin

The Torah permits eating produce that grew by itself, without the farmer working the field during shemittah. However, Chazal felt it necessary to prohibit grains and most vegetables that happened to grow on their own during shemittah year or were planted in violation of the laws of shemittah. This was because even in the days of Chazal it was unfortunately common to find Jews who deceitfully ignored shemittah laws. One practice of enterprising, unscrupulous farmers was to plant grain or vegetables and market them as produce that grew on its own.

To discourage this illegal business, Chazal forbade even grains and vegetables that grew on their own, a prohibition referred to as sefichin (literally, “plants that sprouted”). Several exceptions were made, including produce grown in the field of a non-Jew, who has no obligation to observe shemittah.[9]

c.       Hefker – Ownerless

Since all shemittah produce is halachically ownerless, every consumer has the halachic right to “help oneself” to whatever his family might eat. The poskim dispute whether one has the right to do this even if the owner is not halachically compliant and does not give others permission to enter his field.

The Otzar Beis Din

With this introduction, we can now discuss an Otzar Beis Din.

The owner of a vineyard is not required to produce wine for me, only to allow me to harvest the grapes for myself. If I do not have the equipment or expertise to press and process grapes into wine or olives into oil, I will be unable to utilize my rights to these fruits. Similarly, although I have a right to travel from Yerushalayim to pick citrus, mangos and bananas grown along the coast or in the northern part of the country, it is not that convenient for me to go. How then can I possibly utilize the benefit of shemittah?

Enter the Otzar Beis Din. The Beis Din represents the consumer and hires people to gather the fruit, crush the grapes and olives into juice and oil, ferment the juice into wine, package the product, and then distribute it to the consumer. The Otzar Beis Din acts as the consumer’s agent and hires pickers, truckers, and other laborers; rents wine production equipment; purchases the bottles; produces shemittah fruits, wines and oils; and delivers them to a convenient distribution center near my house.

Obviously, the Otzar Beis Din cannot expect the pickers, truckers, and other laborers to work as unpaid volunteers, nor can they use the production equipment without paying rent. Similarly, the managers who coordinate this project are also entitled to a wage for their efforts. The Otzar Beis Din divides these costs among the consumers. However, no charge is made whatsoever for the fruit, since they are hefker; the charges are only for the labor and other costs involved. Thus, Otzar Beis Din products should cost less than regular retail prices for the same items.

Similarly, the farmer is required to allow anyone to enter his field and help himself to his crops. However, since it is inconvenient for a resident of Yerushalayim to travel to an orchard in the northern part of Israel or along its coast to pick oranges and bananas, the Otzar Beis Din picks and transports the fruit to the consumer. All the other halachos of shemittah apply to this produce.

The Development of a ‘Modern’ Otzar Beis Din

The rabbonim and Beis Din of Yerushalayim organized the first “modern” Otzar Beis Din over 110 years ago. In 5670 (1910), Rav Tzvi Hirsch Cohen, a talmid chacham from Rechovot who owned vineyards and orchards, came to the rabbonim of Yerushalayim requesting that they function as his Beis Din to distribute the wine and fruit from his orchards for the coming shemittah. The written contract, signed by Rav Chayim Berlin, Rav Yosef Chayim Sonnenfeld, Rav Tzvi Pesach Frank, Rav Yisrael Yaakov Yaavetz and Rav Moshe Nachum Wallenstein, enabled Yerushalayim residents to receive wine and fruit from Rav Cohen’s orchards.

Someone had to arrange to harvest the fruit, process the grapes into wine, and transport the products to Yerushalayim. Since Rav Cohen was the most qualified person to take care of these arrangements, the Beis Din appointed him to be their representative on behalf of the general public. As an agent, he was entitled to a wage for his work, as were the other employees who harvested, crushed, packaged, and transported the crop, but no one was entitled to any profits on the produce.

The Beis Din established several rules to maintain that the laws of shemittah were scrupulously kept in this arrangement, and to guarantee that Rav Cohen was paid as a manager and not as an owner of the product. For one thing, they predetermined the price that the consumer would pay for the wine, guaranteeing that it was significantly lower than its usual market price.[10]

Because of the laws governing the harvest and use of shemittah products, the Beis Din also insisted on the following rules:

  • The wine and fruits could be distributed only to people who would observe the shemittah sanctity of the products.[11]
  • The vineyards and orchards had to be available for any shemittah-observant person to enter and harvest for his own needs.[12]
  • The products were not distributed through stores, but were divided as a communal division of bulk product.
  • The products were not weighed or measured. Each individual who participated in dividing the shemittah produce paid Rav Cohen as Beis Din’s agent, for which the consumer was entitled to ‘shares’ of wine and produce, which were delivered in bulk containers without an exact weight.
  • The actual harvest of the product was performed by non-Jews and in an atypical way.[13]

In his analysis of the procedure of an Otzar Beis Din, the Chazon Ish follows a more lenient approach than that of the above-mentioned Beis Din of Yerushalayim.[14] He ruled that representatives of an Otzar Beis Din may harvest in the normal way and use Jewish labor. Thus, the Otzar Beis Din of a modern farm that follows the Chazon Ish’s ruling allows Jewish staff to use tractors and other equipment to harvest and process the shemittah produce.[15]

In addition, the Chazon Ish permitted weighing and measuring produce sold through Otzar Beis Din. In his opinion, the prohibition against weighing and measuring shemittah produce is only because this indicates that I am the owner of the produce. However, weighing and measuring Otzar Beis Din produce is to determine a fair division of costs involved in supplying the produce, and not to demonstrate ownership.

In today’s Otzar Beis Din, the grower plants everything before shemittah and is given extremely detailed instructions regarding what he may and may not do during shemittah. The grower must allow any shemittah-observant person to enter the field or orchard and help himself to the produce.[16]

The Heter Otzar Beis Din Controversy

The modern term, heter Otzar Beis Din, is used pejoratively. The purpose of an Otzar Beis Din is to service the consumer, not the producer, as explained above.

Unfortunately, unscrupulous individuals sometimes manipulate the rubric of Otzar Beis Din to allow a “business as usual” attitude and violate both the spirit and halacha of shemittah. I know of farms that call themselves Otzar Beis Din but, in reality, bar free entry of their fields during shemittah, or the field owner treats the produce as completely his own and charges accordingly.

Since this contradicts the meaning of Otzar Beis Din, these cases are called heter Otzar Beis Din, meaning permitting something based on an abuse of the concept of Otzar Beis Din. Because of these concerns, some hechsheirim discourage the use of Otzar Beis Din. Thus, in practice, Otzar Beis Din becomes a michshol when it degenerates into a heter Otzar Beis Din. Indeed, as with every “treasure,” one must make every effort to ensure its principle stays intact. How much more so with the principles of the Otzar Beis Din!

Conclusion

Just as observing the seventh day, Shabbos, demonstrates our beliefs in the Creator, so too, observing every seventh year as shemittah demonstrates this faith. For someone living in Eretz Yisrael, observing shemittah properly involves assuming much halachic responsibility and education. For the modern farmer, observing shemittah can indeed be true mesiras nefesh, since among the many other concerns that he has, he also risks losing customers who have been purchasing his products for years. For example, a farmer may be selling his crop somewhere in Europe. If he informs his buyer that he cannot produce during shemittah, he risks losing the customer in the future.

Of course, a Jew realizes that Hashem provides parnasah and that observing a mitzvah will never hurt anyone. An observant farmer obeys the Torah dictates knowing that Hashem attends to all his needs. Indeed, recent shemittos have each had numerous miracles rewarding observant farmers in this world for their halachic diligence. Who can possibly imagine what reward awaits them in Olam Haba!


[1] Avodah Zarah 15b.

[2] Moed Katan 3b; Rambam, Hilchos Shemittah 1:10; Cf. Chazon Ish, Shevi’is 16:4, 21:14, who is more lenient.

[3] Rambam, Hilchos Shemittah 4:1.

[4] Ibid., 6:1.

[5] Mishnah Shevi’is 8:3.

[6] Yerushalmi Shevi’is 7:1.

[7] Mishnah Shevi’is 6:5.

[8] Beis Ridbaz 5:18; Shu’t Igros Moshe, Orach Chayim 1:186.

[9] Rambam, Hilchos Shemittah 4:29.

[10] Sefer Minchas Yerushalayim, page 161.

[11] Ibid., 163; see also Tosefta Shevi’is 6:11.

[12] Sefer Minchas Yerushalayim, page 181.

[13] Katif Shevi’is, page 125.

[14] Shevi’is 11:7 s.v. bemashekasavti

[15] Sefer Hashemittah, 21.

[16] Mishpetei Aretz, page 103.

This week’s parsha teaches the prohibition against having one witness testify against someone, which is a violation of loshon hora.

What constitutes talebearing?

Question #1: Talebearing — Rechilus

“What is the legal definition of rechilus?”

Question #2: Loshon hora

“May I listen to someone say inappropriate things about a second person, in order to calm the speaker down?”

Question #3: Motzi shem ra

“I found out that a smear campaign is being planned against someone I know. Whom may I tell about it?”

Introduction

In parshas Kedoshim, the Torah teaches lo seileich rachil be’amecha (Vayikra 19:16), which Rashi and most authorities translate as:“You shall not go as a talebearer among your people.” Rashi explains that the three-letter root of the word rachil, the letters reish, kof, lamid,is related to the root reish, gimel, lamid, which is the root of the word meaning “spy,” since the kof and the gimel sounds are created by the same parts of the mouth. They are both palatals, meaning that both are pronounced by pressing the back of the tongue against the soft part of the palate. Thus, the pasuk means someone who seeks gossip. This mitzvah is counted as one of the 365 lo sa’aseh prohibitions of the Torah. We will soon clarify what is included in this prohibition.

Broader definitions

Several other prohibitions are also included under the general heading of lo seileich rachil be’amecha. According to many authorities, this also includes the lo sa’aseh not to say loshon hora. According to the Gemara and other rishonim, this lo sa’aseh also applies to a judge who does not treat the two parties before him in an equal way, but acts harshly to one and softly to the other. The latter prohibition is derived from a different translation of the word rachil, explaining that its root is related to the word rach, soft.

Let us examine the passage of Gemara (Kesubos 46a) that derives both of these prohibitions from this pasuk: “Which source teaches that spreading falsehood about someone else violates a lo sa’aseh of the Torah? Rabbi Elazar says ‘lo seileich rachil,’ whereas Rabbi Nosson says that he violates a different pasuk, in parshas Ki Seitzei (Devorim 23:10) ‘and you should guard yourself from any evil matter.’ Why did Rabbi Nosson not use Rabbi Elazar’s verse? Because he considers this verse (lo seileich rachil) to teach us a lo sa’aseh that applies only to beis din – that they should not be soft to one of the two litigants and harsh to the other. Rashi explains that this is derived in the following way: lo seileich rachil means, ‘you shall not be soft to me’ when you dealt more harshly with the other litigant. This latter law is mentioned by both the Semag (Lo Sa’aseh 9) and the Sefer Hachinuch (Mitzvah #236).

Hurting feelings, Betraying a secret

There are other prohibitions that are included under the heading of lo seileich rachil. According to the Sefer Hachinuch, the mitzvah of lo seileich rachil also includes saying something that might hurt someone’s feelings.

The prohibition of lo seileich rachil be’amecha also includes revealing information that someone wants kept confidential (Semag). This ruling is codified by later halachic authorities on the topic (Orach Meisharim 8:2). If the information is negative, the teller also violates speaking loshon hora.

Ask your Rabbi

Rav Naftali Amsterdam, one of the primary disciples of Rav Yisroel Salanter, was famous for saying that he found it quite astonishing that people spend so much time and money to effect a heter mei’ah rabbonim, a program which releases someone from a prohibition that has the status of only a cherem established by Rabbeinu Gershom, and yet they freely violate a prohibition to speak loshon hora or to spread gossip, both of which involve violations of Torah laws, without asking any rabbonim what they are permitted to say (retold in Torah Lada’as, Volume V, page 56).

What is talebearing?

At this point, we are ready to discuss our first question: “What is the legal definition of rechilus?”

Thanks to the Chofetz Chayim’s efforts, the laws of loshon hora are much better known and more carefully observed today than they were in earlier days. Nevertheless, there is still much confusion regarding what is considered spreading gossip, and therefore prohibited, and what is not.

To begin our elucidation of the mitzvah, let us quote the words of the Rambam (Hilchos Dei’os 7:1-2) on the topic:

“Someone who tells tales about his fellow violates the proscription of lo seileich rachil be’amecha, ‘You shall not go as a talebearer among your people.’Even though the violator of this prohibition does not receive lashes for this, it is a major sin and has caused much loss of life among the people of Israel. For this reason, the continuation of the pasuk reads, lo sa’amod al dam rei’echa Do not stand aside, ignoring the blood of another.’ Go see what happened to Do’eig the Edomite.

“Who is a talebearer? Someone who carries stories and goes from one person to another, saying, ‘This is what so-and-so said; I heard such-and-such about someone.’ Even if what he says is true, he destroys the world.

“There is a greater sin than this, which is included in this lo sa’aseh, and that is loshon hora, which means that he tells over embarrassing things about his fellow, notwithstanding that it is the truth.”

It is quite clear from the Rambam that, whereas loshon hora is saying over something that is embarrassing about someone else, the prohibition of lo seileich rachil be’amecha is violated even if the story is not embarrassing. Does this mean that the Torah has prohibited saying nice things about your fellowman?

We can prove from later comments of the Rambam that he cannot possibly mean this, since he writes as follows: “Someone who talks about another person’s qualities in front of that person’s enemies is engaging in avak loshon hora (literally, the ‘dust’ of loshon hora, meaning a rabbinic violation of this prohibition) since it causes them to begin to talk disparagingly about him. In this context, Shelomoh said, Mevoreich rei’eihu bekol gadol baboker hashkeim, kelalah teichasheiv lo, ‘He who blesses his neighbor in a loud voice early in the morning, is considered that he cursed him (Mishlei 27, 14), because a result of the good that he (the talker) did caused him (his neighbor) harm” (Hilchos Dei’os 7:4).

Obviously, there is nothing wrong with talking about another person’s qualities, if it is not in front of that person’s enemies or will not cause him any harm. So, what then is the Torah prohibition of lo seileich rachil be’amecha?

Two excellent works on the topic of the laws of loshon hora discuss this question and reach the same conclusion. The Orach Meisharim (8:2 in biurim), authored by Rav Menachem Troish, who was the rav of Salzburg, a village in the Austrian Alps, in the late nineteenth century, and the Nesiv Chayim (Hilchos Rechilus 1:1), authored by Rav Moshe Kaufman, a contemporary author in Bnei Braq, both explain that the prohibition of lo seileich rachil be’amecha applies when the information will ultimately cause harm to the person about whom it is said or when it will lead to some type of machlokes. The person who recounts the “tale” intends to spread gossip, to harm someone, or to create machlokes. This is prohibited even when the person who did the act is not embarrassed by what he did or said; the gossiper is in violation since his goal is to create harm, he violates lo seileich rachil be’amecha.

For example, if the decision of a beis din was not unanimous, the ruling should not be recorded as a split decision, since this may easily create ill feeling between the losing party and those dayanim who sided against him (see Sanhedrin 30a). Instead, you simply write the halachic conclusion. Furthermore, the dayan who disagreed is prohibited from telling this to others (Sanhedrin 31a) since this may cause that those who lost will be upset or angry at the other dayanim.

Another example is when Reuven said something non-complimentary to Shimon about Levi, and Shimon tells Levi what was said. Since this certainly leads to ill feeling among people, it violates lo seileich rachil be’amecha.

Among the types of harm that are included under lo seileich rachil be’amecha is to inform a person that someone helped his enemy. The person who did the act may be unaware that this individual is an enemy of the person he helped, but the rochil is aware of this and wants to spread the machlokes.

Let us for a moment review the story of Do’eig to understand this prohibition better. David he sought refuge in Nov, a city of kohanim, in his flight from Shaul. The residents of Nov were unaware that David was a wanted man, and they provided him with food and a sword. Do’eig told Shaul that the city of Nov had provided for David. Although Shaul was told that the people of Nov were completely unaware that Shaul was pursuing David, Shaul ordered the entire city wiped out.

The Mishnah (Sanhedrin 10:2) mentions Do’eig as one of the individuals who forfeited his right to olam haba.

Lo sa’amod

At this point, we can discuss the third of our opening questions: “I found out that a smear campaign is being planned against someone I know. Whom may I tell about it?”

When talker (T) plans something that may harm V (the victim), listener (L) is required to tell victim (V), so that V can protect himself. This is an example of lo sa’amod al dam rei’echa and is true even if the threat is not life-threatening, but concerns only V’s reputation or his finances. The Torah teaches that there are instances in which telling over what you know is not only permitted, but required.

However, if L (listener) knows that the T (talker) is halachically correct — “person V” is not a victim but actually did harm the talker, and talker is justified to respond — lo sa’amod al dam rei’echa does not apply. In this latter situation, it is prohibited for L to tell over T’s plans, and, if L does so, he violateslo seileich rachil (Be’eir Mayim Chayim, Hilchos Rechilus 1:3).

More on lo seileich rachil, which includes loshon hora

To continue the quotation of the Rambam (Hilchos Dei’os 7:3): “Chazal said, ‘Three sins are punished in this world and deprive a person of the next world — idolatry, adultery, and murder — and loshon hora is equivalent to all three of them. Furthermore, Chazal (Arachin 15b) said that speaking loshon hora is tantamount to denying that there is a G-d, as the pasuk says, Asher amru lil’shoneinu nagbir sefaseinu itanu mi adon lanu, ‘Those who say: “We will make our tongue powerful! Our lips are ours! Who is lord over us?”’ Tehillim 12:5). In addition, Chazal said, ‘Loshon hora kills three people: The one who said it, the one who believes it, and the person about whom it is said. And the one who is hurt most is he who believed it.’”

To quote the Gemara (Arachin 15a), “Rav Elazar ben Parta said, ‘Come and see how serious is the power of loshon hora. How do we see this? From the meraglim, where we see that someone saying loshon hora only about wood and stones could cause such a calamity — how much worse is someone who says loshon hora about another person!’” The Mishnah (Arachin 15a) states that the decree on our forefathers in the desert was sealed because of the loshon hora that they reported.

Continuing the Rambam (Hilchos Dei’os 7:2, 4, 5): “The person who says loshon hora sits around, saying, ‘So-and-so did this,’ ‘His parents were no better and did this,’ ‘I heard these stories about him,’ and repeats embarrassing things. About this, the pasuk says, yachreis Hashem kol sifsei chalokus loshon medaberes gedolos,‘Hashem will cut off all smooth-talking lips, the tongue that talks boastfully’ (Tehillim 12:4).

“There are things that are prohibited as avak loshon hora the ‘dust’ of loshon hora. For example, ‘Who would have believed that so-and-so would end up where he is now,’ or someone who says, ‘Don’t talk about so-and-so, I don’t want to tell you what he did,’ or anything similar. Someone who talks about another person’s qualities in front of that person’s enemies is engaging in avak loshon hora, since it causes them to begin to talk disparagingly about him. In this context, Shelomoh said, Mevoreich rei’eihu bekol gadol baboker hashkeim, kelalah teichasheiv lo, ‘Someone who praises another loudly from early in the morning, is considered a curse to him’ (Mishlei, 27:14), because a result of the good that he did caused him harmbad. Similarly, someone who says loshon hora as a joke or with levity, as if he is not speaking out of hatred, is also engaging in avak loshon hora. This is what Shelomoh intended when he said, in his wisdom, kemislah’lei’ah hayoreh zikim chitzim vamaves, kein ish rimah es rei’eihu ve’amar halo mesacheik ani, ‘Just as a person who exhausts himself by throwing burning wood, arrows and death, so is someone who tricks his fellow, saying, “I was only joking” (Mishlei, 26:18-19). A similar prohibition is violated by someone who says loshon hora, pretending that he does not realize that what he said is negative.

“Something qualifies as loshon hora whether it is said in front of the aggrieved party or not. Furthermore, something that is not inherently negative about the person, but, if spread, will cause him harm either to his body or to his financial situation, it is loshon hora.” An example of the latter might be that a potential investor may decide not to assist someone who is a good risk to start a business because, based on the information he has received, the investor is led to believe that the business will not succeed.

Calming someone down

At this point, let us discuss the second of our opening questions: “May I listen to someone say inappropriate things about a second person, in order to calm the speaker down?”

Accepting loshon hora violates the lo sa’aseh of lo sisa sheima shav, “Do not listen to a purposeless rumor” (Shemos 23:1). However, the Sefer Hasidim rules that if someone comes to you very upset and angry, and you realize that by hearing him out you may be able to calm him down so that he does not tell anyone else, it is a mitzvah to listen to him and then convince him that the person he is upset about really cares about him. Either way, you are not to believe the story, and you are not to share it with others, because of concern that they will share it with the person about whom it is said and it will create a machlokes (Sefer Hasidim #64).

Conclusion

The Talmud Yerushalmi (Peah 1:1) relates the following: In the days of the evil king Achav, the Jews were victorious in their wars, notwithstanding that both idol worship and murder were, unfortunately, prevalent. The Gemara attributes this to the fact that they were extremely meticulous about avoiding loshon hora, as can be demonstrated from the fact that Ovadyah was a member of Achav’s household at the very same time that he was sustaining a hundred prophets who were hiding from Achav (Melachim I 18:13). Obviously, Ovadyah could not hide this information without many people knowing about it, yet Achav never found out. On the other hand, in the days of Shaul, when they were meticulous about refraining from idol worship, they lost the battle with the Pelishtim, because there was loshon hora among the Jews.

It has been said that one time, a yeshivah bochur came to the Chofetz Chayim, complaining that many times he had given long sermons in different communities, and he had as yet not noticed that he had achieved any success in drawing these people closer to the level of observance of mitzvos for which he was striving. The Chofetz Chayim answered that he disagrees with the bchur’s attitude. The midrash states that for every moment that someone keeps his mouth closed and is careful not to say anything that is prohibited, he merits a heavenly light in the next world that no angel or any other creature can even imagine what it accomplishes. This, noted the Chofetz Chayim, is the reward for being quiet for a few seconds, and perhaps even less. How much reward have you gained for yourself and for the people who are listening to you that for all the hours you have spoken, they have not said anything inappropriate? Do you have any idea how much reward you have brought to them and to yourself? (This story is quoted in the biography of the Chofetz Chayimchayav upoalo, Volume I, page 77).

Mezuzah on a Rental

Question #1: Tenancy

“We rented a new apartment but did not put up mezuzos immediately, assuming that we had thirty days to do so. Someone told me that Rav Moshe held that we should put up mezuzos immediately. Is that true?”

Question #2: Temporary Dwelling

“When we went to visit our children in Ramat Beit Shemesh for two weeks, they had borrowed for us a brand-new apartment that the owners themselves had as yet not used. I was surprised to see mezuzos on the doors already. My son-in-law explained that he put up mezuzos in the entire apartment so that we could use it. Was he required to do so? I thought that one is not required to have mezuzos unless one lives somewhere for at least a month.”

Question #3: Mezuzah in a Rehab

“My mother unfortunately fell and broke her femur and will be staying for an extensive period of time in a rehabilitation hospital. Are we required to make sure that there is a kosher mezuzah on the door of her room?”

Basic information:

The Torah requires that a mezuzah be placed on the doorposts of “your” house, beisecha. What is the definition of beisecha? Does the mitzvah apply even when I live in a house that I do not own? Does it apply to a property I own, even if I do not live there? These questions are addressed by the Gemara and its major early commentaries.

The Gemara (Pesachim 4a; Bava Metzia 101b; Avodah Zarah 21a) teaches that the obligation to put up a mezuzah devolves upon the person living in a house and not upon a non-resident owner. Thus, a Jew who rents his home from a gentile is obligated to have mezuzos on the doors (Rambam, Hilchos Mezuzah 5:11; Beis Yosef, end of Yoreh Deah 286; however, cf. Hagahos Maimonis 5:7 who quotes a disputing opinion), whereas a Jewish landlord who owns residential properties that he rents out is not obligated to place mezuzos on them.

When one Jew rents his house or apartment to a second Jew, the requirement to place a mezuzah rests with the tenant.

The Gemara’s statement

There is another Talmudic passage that expands upon the previously-quoted rulings:

“One who lives in an inn in Eretz Yisrael, or one who rents a house in chutz la’aretz is exempt from the mitzvah of mezuzah for thirty days. [If he rents] for longer, he is required to put up a mezuzah. However, one who rents a house in Eretz Yisrael must put up a mezuzah immediately, because this assists in the settling of Eretz Yisrael” (Menachos 44a).

This passage of Gemara mentions three halachos:

1. Someone who lives in an inn, hotel, or other temporary residence is, in general, not obligated to put up a mezuzah. The Gemara states that someone who dwells in an inn in Eretz Yisrael for thirty days becomes obligated in mezuzah.

2. Someone who rents a house or apartment for thirty days or more must put up a mezuzah.

3. However, someone who rents or borrows a house or apartment in Eretz Yisrael must put up a mezuzah immediately.

More details

In order to answer our opening questions, we will need to clarify each of these halachos in more detail. I am first going to explain the rules governing a tenant in chutz la’aretz, who is required to put up a mezuzah when he lives thirty days in a rented or borrowed residence.

I mentioned above that the Torah requires placing a mezuzah on beisecha, your house. One may ask: If a rented residence qualifies as “your” house, then a tenant should be obligated to place a mezuzah there immediately, and if a rented residence does not qualify as “your” house, then the tenant should not be obligated in the mitzvah, even if he lives there longer.

What difference does thirty days make?

As we can imagine, we are not the first to raise this question. Tosafos (Menachos 44a s.v. Talis) does and, to answer it, presents two very different approaches:

I. The person dwelling in a residence is the one who requires the shemirah that the mezuzah provides. For this reason, the mezuzah is the tenant’s responsibility. However, someone living in a dwelling for less than thirty days is not yet considered to be a resident.

This answer contends that installing a mezuzah on a rented dwelling in which one lives for thirty days is min haTorah.

II. The second approach understands that min haTorah a tenant is never required to have a mezuzah on his door, since the word beisecha, your house, implies that the owner of a residence (who also dwells there) is required to install a mezuzah. A tenant is required to have a mezuzah as a takkanas chachamim instituted by the Sages, because the house appears to be his.

Several later authorities conclude that the second approach, that a tenant’s obligation to put up a mezuzah is only miderabbanan, is the approach that we follow in practical halachah (Shu”t Rabbi Akiva Eiger, 1:66; Shu”t Avnei Nezer, Yoreh Deah, #380).

What if I borrow?

The halachic authorities rule that just as someone who rents a residence for thirty days is obligated to have a mezuzah, so, too, someone who borrows a residence for thirty days or more, without paying any rent, is obligated to have a mezuzah (Rabbeinu Manoach, quoted by Beis Yosef, Yoreh Deah, end of 286).

Is the requirement for a mezuzah immediate?

At this point, I want to address our opening question:

“We rented a new apartment but did not put up mezuzos immediately, figuring that we had thirty days to do so. Someone told me that Rav Moshe held that we should put up mezuzos immediately. Is that true?”

The question here is: When someone knows that he will be living in a house or apartment for more than thirty days, is he exempt from mezuzah until the thirtieth day, or since he will be living there for thirty days obligate him immediately?

This matter is disputed. Some authorities contend that the requirement to install a mezuzah is immediate when you intend to rent or borrow the residence for thirty days (Derech Hachayim; Shu”t Harei Besamim 2:219, quoted by Shu”t Minchas Yitzchak 2:82). This approach is implied by Rashi (Menachos 44a), who writes that a tenant is not obligated in mezuzah for thirty days because he might back out of the rental, implying that, when he is committed to renting it for thirty days, he is required to put up a mezuzah immediately.

Some derive support for this position from the halachah that someone who moves into a community is not obligated in local taxes until he lives there for thirty days. However, should he demonstrate his intention to live in the community for thirty days or more, he becomes obligated to pay taxes immediately. Thus, someone’s intention to live somewhere for thirty days may determine permanent dwelling status.

However, other authorities contend that a tenant’s obligation to put up a mezuzah is because it looks as if he is living there permanently, and this does not happen until he is actually there for thirty days. They maintain that even someone who signed a multi-year lease is not obligated to put up a mezuzah until he lives in the rental home for thirty days (Nachalas Zvi to Yoreh Deah 286:22; Pischei Teshuvah, Yoreh Deah 286:18).

Although some later authorities prefer that a long-term tenant put up the mezuzah immediately, in deference to the Derech Hachayim’s position (Shu”t Igros Moshe, Yoreh Deah 1:179), common practice is to follow the second approach, that of the Nachalas Zvi, that one is not obligated to put up the mezuzah immediately.

When should I actually put it up?

Assuming that a tenant is not required to put up a mezuzah until thirty days have passed, may one put up the mezuzah earlier and already recite a brocha, or should one wait until the thirtieth day? The question is: since the Nachalas Zvi rules that a tenant is not obligated to put up a mezuzah until he is living there for thirty days, perhaps one cannot recite a brocha upon installing the mezuzah until one is obligated to do so?

We find a dispute in this matter. The Nachalas Zvi and the Halachos Ketanos (quoted by Birkei Yosef, Yoreh Deah 286:7) conclude that although it may be a bigger mitzvah to wait until the thirtieth day, so that one performs the mitzvah at a time that one is required to do so, one may put up the mezuzah any time during the thirty-day period with a brocha. Others rule that one should not recite a brocha until the thirtieth day (Toras Chesed, quoted by Birkei Yosef, Yoreh Deah 286:7; and others quoted by Chovas Hadar, page 29, ftn. 8).

Thus, we have three approaches as to what to do:

1. Put up the mezuzah immediately.

2. Put up the mezuzah any time during the thirty days.

3. Put up the mezuzah specifically on the thirtieth day.

I advise each individual to ask his own posek which approach to follow.

Temporary dwelling in Eretz Yisrael

At this point, let us discuss the third point made by the Gemara I quoted above – that someone who rents or borrows a house or apartment in Eretz Yisrael must put up a mezuzah immediately.

How does putting up a mezuzah assist the settling of Eretz Yisrael?

To explain this idea, we need to cite a different law. The halachah is that, when vacating a residence, one is usually required to leave the mezuzos in place. To quote the Gemara, “when a Jew rents a house to a fellow Jew, the tenant is responsible to affix the mezuzos. However, when the tenant vacates, he may not remove them. On the other hand, a Jew who rents a residence from a gentile removes the mezuzos when he leaves” (Bava Metzia 102a).

Based on this halachah, Rashi (Menachos 44a) explains why Chazal required someone renting in Eretz Yisrael to put up a mezuzah immediately. Since the tenant may not take the mezuzos with him, he will be reticent to move. And even if he does move, since the mezuzos are left behind, a different Jew will be eager to rent it, since he spares himself the expense of purchasing mezuzos. Either way, the dwelling will remain with a Jewish resident, which accomplishes that “this assists in the settling of Eretz Yisrael.”

Borrowing in Eretz Yisrael

At this point, we will the second of our opening questions:

“When we went to visit our children in Ramat Beit Shemesh for two weeks, they had borrowed for us a brand-new apartment that the owners themselves had not as yet used. I was surprised to see mezuzos on the doors already. My son-in-law explained that he put up mezuzos in the entire apartment so that we could use it. Was he required to do so? I thought that one is not required to have mezuzos unless one lives somewhere for at least a month.”

As I mentioned above, the Gemara rules that someone who rents a house in Eretz Yisrael must put up a mezuzah immediately, because this assists in the settling of Eretz Yisrael. And, since borrowing a house is the same as renting it (Rema, Yoreh Deah 286:22), someone who borrows someone’s house even for just one night is required to install mezuzos on the entire house.

The “inn” thing

As I mentioned above, someone who lives in an inn, hotel, or other temporary residence is, in general, not obligated to put up a mezuzah. Since it is generally assumed that an inn is not a place in which one lives permanently, it is not considered a “dwelling” (Shach, Yoreh Deah 286:28). Rashi (Menachos 32b s.v. Hayu) implies that someone living temporarily in a residence that is clearly not intended to be permanent is not required to have a mezuzah, even if he owns the “residence.”

Thus, someone staying in a hotel in Eretz Yisrael is not required to have a mezuzah, and one is certainly not required to ascertain if the mezuzos on one’s hotel room door are kosher.

Inn chutz la’aretz

However, the Gemara states that someone who dwells in an inn in Eretz Yisrael for thirty days becomes obligated in mezuzah. What about a chutz la’aretz resident who lives permanently in an inn – is he obligated to put up a mezuzah?

Most authorities explain that someone who lives permanently in an inn in chutz la’aretz is not obligated to put up a mezuzah, because this is not considered having a house (see Chovas Hadar, page 31, ftn. 16). Only in Eretz Yisrael did Chazal require putting up a mezuzah when living permanently in a place usually meant for temporary dwelling. (Perhaps this explains why so many people in Eretz Yisrael live permanently in temporary housing, such as caravans and caravillas.)

However, the Aruch Hashulchan (Yoreh Deah 286:48) implies that living in an inn in chutz la’aretz for thirty days requires installing a mezuzah, and I believe that this is the more common practice.

A hut?

Later authorities discuss whether someone who lives in a hut or similar accommodation for longer than thirty days must put up a mezuzah. The Sedei Chemed concludes that if someone moves into a hut, bungalow or similar accommodation for more than thirty days, he is obligated in mezuzah, whereas someone living in a hut as a refugee is not obligated to put up a mezuzah (Volume 4 page 245). Others rule that one should put up a mezuzah without a brocha, even if he is a refugee (Chazon Nachum, quoted by Birkei Yosef, Yoreh Deah 286:9)

A mobile home?

The Minchas Yitzchak (2: 82) discusses whether someone who lives permanently in a mobile home is required to put up a mezuzah, concluding that he is required to do so, although the Minchas Yitzchak is uncertain whether he should recite a brocha.

A boarding house

The Aruch Hashulchan (Yoreh Deah 286:46) rules that, although someone staying temporarily in an inn is exempt from the mitzvah of mezuzah, this is true only when the room or the inn is not a part of someone’s house. However, a Jewish person who takes in boarders into his house is required to have mezuzos on all the doors. This is not a requirement because of the tenants, but because of the owner – this is considered a residential use of his own property that requires him to have a mezuzah, just as all other rooms in his house must have one.

A similar situation would exist if someone has gentile help living in his house or if he rents out rooms in his house to gentiles. Even though a gentile has no obligation to put up a mezuzah, since this is a room in your house, you are required to put up a mezuzah.

A guest house

Chovas Hador (page 20, ftn. 1) explains that this obligation exists only when the guest rooms are in your house. However, if you have a separate structure that you use as a guesthouse, the owner has no responsibility to place mezuzos there.

Similarly, if hired help lives in a separate building that is on your property, and you do not use that property for your own domestic needs, you have no requirement to put a mezuzah on the help’s residence (Chovas Hador page 20, ftn. 1).

A rehab center

At this point, we should discuss the third of our opening questions:

“My mother unfortunately fell and broke her femur and will be staying for an extensive period of time in a rehabilitation hospital. Are we required to make sure that there is a kosher mezuzah on the door of her room?”

This question is discussed by one of the great nineteenth-century halachic authorities, the Avnei Nezer. He concludes that someone hospitalized for an extensive period of time is not required to place a mezuzah on a hospital room for two reasons:

Even according to those who contend that a long-term tenant is obligated min haTorah to put up a mezuzah, this is true only when he rents a specific room, apartment or house. A patient in a hospital or rehab program is entitled to a bed somewhere in the facility, and the hospital may move him to a different room without his agreement. Thus, he has no ownership that requires having a mezuzah on the door.

In addition, if a tenant’s obligation to put up a mezuzah is a rabbinic requirement, it is because use of the property is similar to that of an owner. Staying in a hospital is never viewed as ownership of your room. Therefore, the Avnei Nezer concludes that a patient in a hospital has no requirement to have a mezuzah on the door. (See also Shu”t Chayim Sha’al #22, who reaches the same conclusion.)

Mezuzah rewards

Aside from fulfilling a mitzvah commanded by Hashem, the mitzvah of mezuzah serves to remind us constantly of His presence, every time we enter and exit our houses. In addition, the Gemara teaches that someone who is meticulous in his observance of the laws of mezuzah will merit acquiring a nice home (Shabbos 23b). Thus, observing this mitzvah not only protects one’s family against calamity, but also rewards one with a beautiful domicile. May we all merit being careful always in our observance of the laws of mezuzah and the other mitzvos, and reaping all the rewards, both material and spiritual, for doing so!

Select Halachos of the Days Surrounding Tisha B’Av

This article will discuss some of the halachos of Shabbos Chazon, Tisha B’Av itself, and the day after Tisha B’Av. Since this year Tisha B’Av is observed on Sunday, we do not eat the regular Seudah Hamafsekes immediately before the fast and I have, therefore, omitted the laws concerning that meal.

WHAT PRACTICES DO WE OBSERVE ON SHABBOS CHAZON?

The poskim dispute whether one demonstrates any signs of mourning on Shabbos Chazon. To understand this dispute, we must first explain the observances of Shabbos during shivah week.

Although Shabbos is technically part of the shivah week, it is forbidden to show any public signs of mourning on Shabbos. However, for what others do not see, one keeps the halachos of shivah. Thus, one wash enough that it is not obvious others that he has not washed. Similarly, marital relations are prohibited during the Shabbos of shivah week. Similarly, a mourner does not learn Torah on Shabbos of shivah week, unless it would be noticeable publicly that he is not learning Torah.

A mourner may not be called to the Torah during shivah, even on Shabbos, because he is not permitted to learn Torah. However, since Rabbeinu Tam was called to the Torah every Shabbos, he insisted on the aliyah when he was observing shivah. Since he was called up every Shabbos, missing it would be a public demonstration of mourning, which is prohibited on Shabbos. Similarly, Rav Gifter once paskened for someone to attend a shiur on the Shabbos of shivah because he never missed.

Concerning Shabbos Chazon, the poskim disagree whether mourning the loss of the Beis HaMikdash has the same rule as private mourning. Rema contends that mourning the loss of the Beis HaMikdash does not violate public mourning on Shabbos. According to his approach, weekday garb is worn on Shabbos Chazon (Rema, Orach Chayim 551:1) and melancholy tunes are sung in shul.

The Vilna Gaon disagrees, contending that there is no qualitative difference between mourning the loss of the Beis HaMikdash and a private loss. In both instances, it is prohibited to have a public display of mourning on Shabbos (Mishnah Berurah 551:6). Those following this approach wear Shabbos clothes on Shabbos Chazon and sing regular tunes in shul.

V’ATAH KADOSH

After completing Eicha on Tisha B’Av night, we recite the prayer V’atah Kadosh, even when Tisha B’Av does not fall on Motzaei Shabbos. An almost identical version of this prayer is also recited on weekdays at the end of shacharis (and Shabbos and Yom Tov in mincha), adding two introductory pesukim. It is also recited at night every Motzaei Shabbos, Purim and Tisha B’Av. Why is this prayer recited on these occasions?

Uva L’tziyon includes one of the four daily recitations of kedusha. Two of the others are said in the repetition of the Shemoneh Esrei, one in Shacharis and one in Mincha, and the other time is part of the Birkos Keri’as Shema in Shacharis. The words of Kedusha parallel the exalted, sublime praise recited by the angels. Singing Hashem’s praises in this fashion demonstrates our ability to rise to the level of the angels.

Uva L’tziyon, the third recital of Kedusha during Shacharis, is an extremely important prayer. The Gemara asks, “Now that the Beis HaMikdash is destroyed, in what merit does the world exist?” The Gemara answers that the world continues to exist in the merit of two prayers: The Kedusha said during “Uva L’tziyon” at the end of Shacharis and the Kaddish recited after public learning (Sotah 49a). Both these prayers include two highly important mitzvos – learning Torah and declaring the sanctity of Hashem through Kedusha and Kaddish (Rashi ad loc.). Why are these two mitzvos special? Studying Torah is our feeble attempt to understand a glimmer of the brilliant blueprint with which the world was created. Reciting Kedusha and Kaddish is our attempt to create the highest form of praise recited in Hashem’s honor. By combining these two concepts, we literally maintain the world’s existence.

When this special prayer is recited at night, its two opening verses are omitted because they begin by saying, “Uva L’tziyon go’el,” “And the redeemer will come to Tzion,” a prayer that is inappropriate at night, because the redemption will occur during the daytime.

WHY IS THIS PRAYER RECITED ON TISHA B’AV?

The verse “V’atah kadosh yosheiv tehillos Yisroel,” “And You are holy, enthroned by the praises of Yisroel” (Tehillim 22), that introduces this prayer (at night) means that the sanctity of Hashem depends on the praises of Klal Yisroel. A second factor in manifesting Hashem’s sanctity is the redemption of the Jewish people. Therefore, on Purim we recite this prayer immediately after completing Megillas Esther, expressing the manifestation of Hashem’s kedusha that resulted from our redemption. We recite this prayer on the night of Tisha B’Av because it is a special time to pray for the ultimate redemption when Hashem’s kedusha will be finally recognized (Aruch Hashulchan, Orach Chayim 693:1).

DO WE WEAR TEFILLIN ON TISHA B’AV?

A mourner does not wear tefillin on his first day of mourning. This is derived from the Book of Yechezkel (24:17), where Yechezkel received a prophecy that his wife will die and that he will not be permitted to observe the laws of mourning for her.  Among the instructions Yechezkel received was, “Pe’ercha chavosh alecha,” “Your ornament shall be worn on your head.” This meant that he had to continue to wear his tefillin. From here we derive that only Yechezkel, who was forbidden to mourn properly, had to continue to wear tefillin after his wife’s passing, whereas a regular mourner must remove his tefillin under similar circumstances. (This rule only applies on the first day of mourning. A mourner does wear tefillin for the rest of the shivah. It should be noted that there is a dispute among poskim whether a mourner wears tefillin on the first day of mourning when it is not the actual day of death. There are various customs concerning this matter.)

What is the status of Tisha B’Av? Is it like the first day of mourning, since this is the very day that the Beis HaMikdash was destroyed? Or is Tisha B’Av different from regular instances of mourning since it is not the actual day that the Beis HaMikdash was destroyed but only commemorative of the event? This is a dispute among poskim. Some poskim ruled that the loss of the Beis HaMikdash is far greater than regular mourning and that one may not wear tefillin at all on Tisha B’Av (Maharam, quoted by Tur Orach Chayim 555; Rabbeinu Yerucham, quoted by Beis Yosef ibid.).

On a homiletic level, one could explain that wearing tefillin on Tisha B’Av is a contradiction. The Torah states that the Jews removed the ornaments they had received after worshipping the golden calf. Rav Hirsch (Shemos 33:4) explains that these ornaments were tefillin that are, after all, the only truly Jewish ornament. Just as the Jews at that time removed their tefillin out of embarrassment from their sin, so we should not wear tefillin as a sign of our embarrassment over the destruction of the Beis HaMikdash.

One opinion contends that one should not wear tefillin of the head on Tisha B’Av, but that one may wear the tefillin of the arm. This is because the “pe’er” (glory) mentioned in Sefer Yechezkel (24:17) refers only to the tefillin worn on the head.

Many poskim, however, contend that Tisha B’Av is not considered the same as the first day of mourning and that one must wear tefillin (Rosh, quoted by Tur).

As a compromise, the Ashkenazic practice is to refrain from wearing tefillin until Mincha. Thus, the morning is treated like the first day of shivah, while the afternoon is treated as the middle days of shivah when it is permitted (and obligatory) to wear tefillin.

Some Sefardim follow the Ashkenazic practice just mentioned, whereas others wear tefillin during shacharis and remove them before reciting kinos. Still others don tefillin at home before leaving for shul in the morning, but do not wear tefillin in public.

DOES ONE WEAR TZITZIS ON TISHA B’AV?

The Tur, quoting Maharam, reports that there were different customs regarding the

wearing of tzitzis on Tisha B’Av. Some men did not wear tzitzis at all, while others wore

a tallis katan under their clothes and did not wear a tallis gadol.

However, the poskim note that no halachic sources forbid a mourner from wearing tzitzis. Thus, they find it strange why the custom was to refrain from wearing a tallis on Tisha B’Av. However, there is a medrash on Eicha that implies that one does not wear tzitzis on Tisha B’Av. Because of this medrash and the custom mentioned by the Tur, it is accepted Ashkenazic practice to delay wearing the tallis gadol until Mincha. In addition, many have the custom to leave the tzitzis of the tallis katan under one’s clothes until after midday (even if they usually wear the tzitzis on top of their clothes). At Mincha, one puts on the tallis gadol.

STUDYING TORAH ON TISHA B’AV

There is a dispute among poskim whether children may study Torah on Tisha B’Av. The Gemara states that the chadorim (Torah elementary schools) must be closed. However, some poskim rule that children may study Torah on Tisha B’Av because they learn Torah out of coercion and not because they enjoy it (Taz, Orach Chayim 554:1). According to this logic, a child who wants to learn Torah on his own on Tisha B’Av should not be discouraged from doing so, since his learning is not out of enjoyment (Biur Halacha ad loc.). On the other hand, other poskim rule that children are forbidden to learn Torah, like adults (Bach and Magen Avraham).

DO WE RECITE THE SECTIONS OF DAVENING THAT INCLUDE THE STUDY OF TORAH?

The Ramban mentions that some people had the custom of skipping “Eizehu Mekomam” and the verses of korbanos on Tisha B’Av, because their reading constitutes studying Torah. However, he rules that one should say everything that is part of the daily davening. An additional reason to recite the korbanos is because their verses are a substitute for the morning korban tamid of the Beis HaMikdash (Ramban, quoted by Tur and Shulchan Aruch, Orach Chayim 554:4).

SELECT LAWS OF FASTING ON TISHA B’AV

The Gemara rules that all women must fast the entire Tisha B’Av, even if they are pregnant or nursing (Pesachim 54b), provided that they are not ill and that there is no danger to the baby. Some contemporary poskim rule that, today, pregnant women should not fast because the chance of endangering the baby is high (Even Yisrael 9:61). According to all opinions, a woman less than 30 days since childbirth is not required to fast on Tisha B’Av. A sick person is forbidden to fast on Tisha B’Av, even if one’s illness is not life threatening (Shulchan Aruch,Orach Chayim 554:6).

On other fast days (Shivah Asar B’Tammuz, Asarah B’Teves, Tzom Gedalyah) there is a dispute whether a pregnant woman is required to fast. (It should be noted that Taanis Esther is treated more leniently than the other fast days.) Rabbeinu Yerucham rules that pregnant women are not permitted to fast on these fast days because this causes the fetus to suffer, whereas the Maharam rules that pregnant women must fast unless they themselves are suffering. A third opinion, Rabbeinu Tam, rules that a pregnant woman may fast but is not obligated to do so (Beis Yosef, Orach Chayim 554). In practice, the Shulchan Aruch (Orach Chayim 554:5) rules that pregnant women and nursing mothers are not required to fast, while the Rema concludes that the custom is that they fast unless they are very uncomfortable (Orach Chayim 550:1; 554:6). Obviously, a woman who is ill or who risks danger by fasting is forbidden to fast. The prevalent accepted practice today is that pregnant women and nursing mothers do not fast.

SHOULD SOMEONE WHO IS NOT FASTING ON TISHA B’AV EAT IN SMALL QUANTITIES?

There are several halachic differences between fasting on Tisha B’Av and Yom Kippur. One difference is germane to the halacha of eating pachos m’keshiur, eating less than the minimum amount. If fasting might endanger a person’s life, he/she is forbidden to fast. On Yom Kippur, if a small amount of food or beverage removes the danger (as is usually the case), one should only eat very small amounts of food and beverage at one time because of the halacha of pachos m’keshiur. Simply stated, this means that eating minute amounts of food and beverage at one time is a smaller Yom Kippur infraction than eating a full measure.

Therefore, if the potential danger is eliminated by eating or drinking pachos m’keshiur, one is permitted to eat and drink only that much. (It should be noted that a regular person is forbidden min haTorah to consume the tiniest amount of food or liquid on Yom Kippur. The rule of pachos m’keshiur only applies to someone who is forbidden to fast.)

The halacha concerning eating small quantities applies to Yom Kippur and not to Tisha B’Av (Shulchan Aruch 554:6). A sick person is completely excluded from the mitzvah of fasting on Tisha B’Av. Therefore, he is not required to try to consume less than the minimum amount.

There is a Biur Halacha who quotes from the Pesach Hadvir that when eating because a

cholera epidemic poses a risk to life, someone should eat pachos m’keshiur on Tisha B’Av. Some have compared this ruling to pregnant or nursing women who are not fasting on Tisha B’Av. However, this is not an accurate comparison. The Biur Halacha is discussing someone completely healthy and, therefore, included in the takanas Chazal, but it is dangerous to fast. All the other cases involve someone not fully healthy who is not permitted to fast.

MAY ONE GO TO WORK ON TISHA B’AV?

The Mishnah states that it is permitted to work on Tisha B’Av, provided that one lives in a place where this is the accepted practice (Pesachim 54b). In many places, the minhag was that people did not work. The Mishnah concludes that Torah scholars customarily do not work on Tisha B’Av, even if they live in a community where the practice is to be lenient. Furthermore, the Gemara (Taanis 30b) states that an individual will not see any blessing from work performed on Tisha B’Av. This is explained by the poskim to mean that whatever profit he gains from such work will be lost in some other way.

The Mishnah continues with a second dispute. Rabbi Shimon ben Gamliel rules that it is meritorious for a regular person to imitate Torah scholars and refrain from working on Tisha B’Av. The Sages, however, disagree, arguing that it is pretentious for someone who is not a Torah scholar to act as if he is a Torah scholar. Although Rabbi Shimon ben Gamliel agrees with the Sages that it is forbidden to behave pretentiously, he argues that not working on Tisha B’Av does not demonstrate pretentious behavior – why should people assume that he has work to do that day? (Pesachim 55a; Berachos 17b).

This discussion teaches that it is forbidden to perform mitzvos ostentatiously (Pesachim 55a; Berachos 17b; see also Shulchan Aruch, Orach Chayim 34:3). The Gemara refers to this prohibition as yohara, showing off, allowing the yetzer hora to masquerade as yetzer tov. (A person thinks he is behaving righteously by being machmir, when in reality his yetzer hora is encouraging him to show off.)

WASHING FLOORS ON TISHA B’AV AFTERNOON

In some places there is a custom to wash the floors and clean the house on the afternoon of Tisha B’Av. This custom is based on a mesorah that Moshiach will be born on Tisha B’Av afternoon and that it is therefore appropriate to commemorate the redemption and strengthen people’s hopes and prayers (based on Beis Yosef, Orach Chayim 554 and Kolbo). Although this seems like unnecessary work on Tisha B’Av that should be postponed, poskim rule that one should not discourage those who follow this custom (Birkei Yosef, Orach Chayim 559:7).

MAY ONE SCHEDULE A WEDDING FOR THE DAY AFTER TISHA B’AV?

The Mishnah states, “Mishenichnas Av, mema’atim b’simcha,” “When the month of Av begins, we decrease our happiness” (Taanis 26b) and this includes not making weddings. An additional reason cited to forbid weddings during the first nine days of Av is that since Av is a month of bad mazel for Jews, one should postpone a wedding to a more auspicious date (Beis Yosef 551; Magen Avraham 551:8). However, it does not state how much time one must wait to make a wedding after Tisha B’Av. In practice, this is a subject of dispute among poskim and various customs. In most places, the custom is to allow weddings from the beginning of the eleventh of Av, while in some places they delayed scheduling weddings until after Shabbos Nachamu.

The prophet Yeshaya declared: “Exult with Yerushalayim and rejoice over her, all those who love her. Rejoice with her rejoicing all those who mourned over her,” (Yeshaya 66:10). “From here we see,” says the Gemara, “that whoever mourns over Yerushalayim will merit to see her happiness, and whoever does not mourn over Yerushalayim will not merit to see her happiness” (Taanis 30b).

May we all merit experiencing the happiness of Yerushalayim very soon!

Explaining the Laws of the Three Weeks

The three-week period between Shiva Asar B’Tammuz and Tisha B’Av is kept by Klal Yisrael as a time of mourning. In this article, we will review and explain the halachos that apply during the Three Weeks. In a subsequent article, we hope to review the halachos that apply during the Nine Days that begin with Rosh Chodesh Av.

WHAT HAPPENED ON SHIVAH ASAR BETAMMUZ?

The Mishnah (Ta’anis 26) teaches that five tragic events occurred on the 17th day of Tammuz:

1.      The luchos (tablets) containing the Aseres Hadibros were destroyed.

2.      The daily korbanos offered in the First Beis Hamikdash were stopped (see Rambam, Hilchos Ta’anis 5:2).

3.      The walls of the city of Yerushalayim were breached, leading to the destruction of the Second Beis Hamikdash (Ta’anis 28b).

4.      The wicked Apostomus, a Greek officer, burned the Torah near a bridge in Eretz Yisrael, during the period of the second Beis Hamikdash (see Talmud Yerushalmi and Tiferes Yisrael).

5.      An idol was placed inside the Beis Hamikdash. According to Rashi, this was done by the evil King Menashe. Others explain that this incident occurred during the Second Beis Hamikdash time period (Rambam, Hilchos Ta’anis 5:2). These two interpretations reflect two opinions recorded in the Talmud Yerushalmi.

To commemorate these tragic events, the Jewish people observe the 17th of Tammuz as a fast day (see Rosh Hoshanah 18b; Rambam, Hilchos Ta’anis 5:1-4). In addition, the custom developed to observe some mourning practices from this day until Tisha B’Av. This three-week season is referred to by the Midrash Rabbah (Eicha 1:3) as the period of Bein Hametzarim.

It is noteworthy that neither the Mishnah nor the Gemara associate any mourning practices with the Bein Hametzarim period. Rather, the Mishnah mentions that the mourning of the Tisha B’Av season begins on Rosh Chodesh Av by “decreasing simcha” (Ta’anis 26b). The Mishnah does not explain what activities are curtailed in order to decrease simcha.

The Gemara (Yevamos 43a, as explained by the Ramban and Tur; cf. Rashi, who understands the Gemara differently) refers to four activities that are prohibited during this period, presumably to manifest this decreasing of simcha:

1.      Business activity is decreased. (There is a dispute among poskim what types of business activity are intended; see Mishnah Berurah 551:11.)

2.      Construction and planting for a simcha are not done (Yerushalmi, Ta’anis, cited by Tosafos, Yevamos 43a s.v. Milisa).

3.      Weddings are not conducted. (An additional reason is cited to forbid weddings during these nine days: since this is not a good season for Jews, one should postpone a wedding to a more auspicious date [Beis Yosef, Orach Chayim 551; Magen Avraham 551:8].)

4.      One may not make a festive meal to celebrate an erusin. This was the approximate equivalent to our making a tenaim or vort to celebrate an engagement. The Gemara permits making the erusin, itself, provided one does not make a festive meal to celebrate it. It is permitted to become engaged during the Nine Days, and even on Tisha B’Av itself (Magen Avraham 551:10; Tur, quoting Rav Nissim; Shulchan Aruch, Orach Chayim 551:2).

Although the Mishnah and Gemara make no mention of beginning the mourning period any earlier than Rosh Chodesh Av, accepted minhag Ashkenaz is to begin the aveilus from the 17th of Tammuz. Thus, the Rema (Darkei Moshe, Orach Chayim 551:5 and Hagahos 551:2) reports that Ashkenazim do not make weddings during the entire period of the Three Weeks, a practice that has become accepted by many Sefardic communities (Knesses Hagedolah; Ben Ish Chai, Parshas Devarim #4). However, many Sefardic communities permit making a wedding until Rosh Chodesh Av, and, under certain circumstances, even later (Shu’t Yabia Omer 6:Orach Chayim #43. See also Sedei Chemed Vol. 5, pg. 279 #14 who states that it depends on the custom of the community.)

MAY ONE SCHEDULE A VORT DURING THE THREE WEEKS?

It is permitted to celebrate an engagement during the Three Weeks, provided there is no music or dancing (Magen Avraham 551:10). Until Rosh Chodesh, one is allowed to celebrate the engagement with a festive meal (Mishnah Berurah 551:19), but from Rosh Chodesh, one should serve only light refreshments (Magen Avraham 551:10).

IS DANCING PERMITTED DURING THE THREE WEEKS?

Most dancing is prohibited during the Three Weeks (Magen Avraham 551:10; Elyah Rabbah 551:6; Mishnah Berurah 551:16). However, there are authorities who permit dancing at a sheva brachos.

MAY ONE GET MARRIED ON THE NIGHT OF THE 17TH OF TAMMUZ?

When the 17th of Tammuz falls out during the week, one who chooses to get married on this day should begin the wedding on the daytime of the 16th. There are poskim who contend that this is permitted only under extenuating circumstances (Piskei Teshuvos 551: 7 footnote 51).

When the 17th falls out on Sunday, most poskim prohibit making a wedding on the night of the 17th (Motza’ei Shabbos), since they consider that the period of mourning begins already at night (Shu’t Tzitz Eliezer 10:26). Many poskim contend that the night of the 17th should be treated even more strictly than the Three Weeks; it should be treated with the stringencies of the Nine Days (Elyah Rabbah; Shu’t Chayim Sha’al #24; Biur Halacha 551:2). However, Rav Moshe Feinstein rules that, under extenuating circumstances, it is permitted to schedule a wedding on the Motza’ei Shabbos of the 17th of Tammuz (Shu’t Igros Moshe, Orach Chayim 1:168).

WHAT ARE THE LAWS ABOUT HAVING HAIRCUTS AND SHAVING DURING THE THREE WEEKS?

The Mishnah (Ta’anis 26b) rules that it is prohibited to cut one’s hair from the Motza’ei Shabbos preceding Tisha B’Av until Tisha B’Av. (These days are referred to as “shavua shechal bo Tisha B’Av”, the week in which Tisha B’Av falls. We will refer to these days as “the week of Tisha B’Av.”) This includes both shaving one’s beard and getting a haircut (Ran). Thus, according to the takkanah of Chazal, it was permitted to have a haircut or shave up until a few days before Tisha B’Av. However, the Rema notes that the custom among Ashkenazim is that we do not cut our hair during the entire Three Weeks (Darkei Moshe, Orach Chayim 551:5 and Hagahos 551:4).

There are different customs among Sefardim regarding having haircuts during the Three Weeks. Shulchan Aruch, Orach Chayim (551:3) rules that it is prohibited to have a haircut only in the week of Tisha B’Av, as is recorded in the Gemara, and this is the Sefardic practice according to Rav Ovadia Yosef (Shu’t Yechaveh Daas 4:36). However, other Sefardic poskim note that it is dependent on custom (Ben Ish Chai, Parshas Devorim #12)

Rav Ovadia Yosef paskens that Sefardic bachurim learning in an Ashkenazic yeshiva are permitted to shave until Rosh Chodesh. Even though most of the students in the yeshiva follow the Ashkenazic practice of not shaving during the entire Three Weeks, it is permitted for the Sefardim to follow their custom and shave (Shu’t Yechaveh Daas 4:36). Although there is a general rule that a community should follow one halachic practice, this is true when the community has one rav or follows the guidance of one beis din. However, Sefardim and Ashkenazim are considered communities with different rabbonim and batei din; therefore, each community may follow its own halachically accepted practice (Yevamos 14a).

There are a few exceptions to the ruling regarding when Ashkenazim are permitted to shave or get a haircut during the Three Weeks. For example, it is permitted to trim one’s mustache, if it interferes with eating (Ran; Shulchan Aruch, Orach Chayim 551:13).

Shu’t Chasam Sofer (Yoreh Deah #348 s.v. Ve’i golach) rules that a person who shaves every day is permitted to shave on Friday during the Three Weeks, in honor of Shabbos. Furthermore, he also implies that someone who is very uncomfortable because of his beard stubble is permitted to shave during the Three Weeks, except for the week of Tisha B’Av (see She’arim Hametzuyanim Bahalacha 122:5). Both of these rulings are controversial, and one should not rely on them without receiving a pesak from a rav.

Rav Moshe Feinstein permits shaving during the Three Weeks, if someone may lose his job or may lose customers because he does not shave. However, if the only concern is that people will make fun of him, he is not permitted to shave. Rav Moshe Feinstein contends that when the prohibition against shaving is only because of minhag (as it is prior to the week of Tisha B’Av), there is no minhag to prohibit shaving if he will suffer financially as a result. However, if he will suffer only embarrassment or harassment, but no loss of income, he is required to remain unshaven.

In any case, shaving is prohibited during the week of Tisha B’Av not because of minhag but because of takkanas chachomim, which forbids shaving, even if one suffers financial loss (Shu’t Igros Moshe, Choshen Mishpat 1:93 and Orach Chayim 4:102).

If a bris falls out during the Three Weeks, the father of the baby, the mohel and the sandek are permitted to shave or have a haircut (Shu’t Chasam Sofer, Orach Chayim #158). The Chasam Sofer permits a haircut and shave even during the week of Tisha B’Av, whereas other poskim disagree and permit this only until the week of Tisha B’Av (Shu’t Noda Biyehudah 1:28; Sha’arei Teshuvah; Sedei Chemed 5:278:3) or only until Rosh Chodesh (Be’er Heiteiv 551:3).

Some poskim permit a haircut or shave only on the day of the bris itself (Shu’t Noda Biyehudah 1:28). According to some authorities, the kvatter and the sandek me’umad (also called “amidah lebrachos”) are also permitted to shave and have a haircut (She’arim Hametzuyanim Bahalacha, Kuntrus Acharon 120:8, based on Elyah Rabbah 551:27 and Beis Meir, Orach Chayim 551). However, most poskim do not permit them to shave, and restrict the heter of shaving and haircutting in honor of the bris to the mohel, the sandek, and the father of the baby.

Adults may not give children a haircut during the week of Tisha B’Av (Shulchan Aruch, Orach Chayim 551:14). The poskim disagree whether a minor may have a haircut during the part of the Three Weeks before Shabbos Chazon. Some contend that since the prohibition against haircuts during these weeks is only a custom, children are not included (Mishnah Berurah 551:82, quoting Chayei Adam), whereas others rule that children are included (Elyah Rabbah 551:28).

Although some poskim permit scheduling an upsheren (chalakah) during the Three Weeks, if that is when the child’s birthday is, the prevalent practice is to postpone the upsheren until after Tisha B’Av (Piskei Teshuvos 551:44).

Some recent poskim have suggested that a bar mitzvah bachur who needs a haircut may have one during the Three Weeks, as long as it is not during the week of Tisha B’Av. The She’arim Hametzuyanim Bahalacha concludes that it is more acceptable, halachically, for the bar mitzvah to have a haircut the day before he turns bar mitzvah and rely on the opinion that a minor may have a haircut during the Three Weeks, before the week of Tisha B’Av (Kuntrus Acharon 120:8).

The authorities disagree as to whether a woman may have her hair cut during the Three Weeks. Mishnah Berurah rules that a woman may not have her hair cut during the week of Tisha B’Av. He suggests that it may be permitted for her to trim the hair on the temples (Mishnah Berurah 551:79). Many poskim rule that a woman may tweeze her eyebrows and perform similar cosmetic activities, even during the week of Tisha B’Av (see Shu’t Igros Moshe, Yoreh Deah 2:137; Halichos Beisah, Chapter 25, footnote 70).

MAY I CLIP MY FINGERNAILS DURING THE THREE WEEKS?

It is permitted to clip fingernails during the Three Weeks, according to all opinions. There is a dispute whether one can clip nails during the week of Tisha B’Av (Magen Avraham, 551:11 permits, whereas Taz, Orach Chayim 551:13 and Elyah Rabbah 551:7 prohibit).

WHAT ARE THE HALACHOS ABOUT PLAYING AND LISTENING TO MUSIC DURING THE THREE WEEKS?

Playing or listening to music for enjoyment is prohibited during the Three Weeks (Shu’t Igros Moshe, Orach Chayim Vol. 4:21:4). Many poskim prohibit listening even to recorded music (Shu’t Tzitz Eliezer 15:33).

It is permitted to play music for non-Jews for parnasah or to teach music for parnasah, until the week of Tisha B’Av (Biur Halacha to 551:2 s.v. Memaatima, based on Pri Megadim). Similarly, it is permitted to take music lessons that are for parnasah. Some poskim permit taking lessons, if the lessons are not for pleasure and there will be a loss of skill because of the time lost (Shu’t Tzitz Eliezer 16:19). However, the Kaf Hachayim (551:41) writes: “Those who teach music during these days should teach sad songs, and it would be even better if they did not teach any music at all.”

IS SINGING PERMITTED DURING THE THREE WEEKS?

Sedei Chemed discusses this question (Volume 5, page 376:10). He feels that it is permitted, but quotes sources who seem to forbid it, and therefore is inconclusive. It is permitted to sing sad or moving songs, similar to what we sing on Tisha B’Av. Since it is uncertain that it is prohibited, one need not tell someone who is singing that he is doing something halachically wrong.

MAY ONE RECITE SHEHECHEYANU DURING THE THREE WEEKS?

There are three opinions among the poskim:

1. Shehecheyanu should not be recited during the Three Weeks, even on Shabbos (Arizal);

2. Shehecheyanu should not be recited on weekdays, but may be recited on Shabbos (Sefer Chassidim #840);

3. Shehecheyanu may be recited even on weekdays (Taz and Gra, Orach Chayim 551:17).

Most halachic authorities rule like the middle opinion, permitting shehecheyanu to be recited on Shabbos, but not on weekdays (Magen Avraham, Elyah Rabbah, Chayei Adam; Mishnah Berurah). In general, laws of mourning do not apply on Shabbos. Thus, shehecheyanu may be recited on Shabbos. (Rav Akiva Eiger rules that shehecheyanu may also be recited on Rosh Chodesh.)

An alternative approach to explain this opinion contends that it is a mitzvah to benefit from the world and make a shehecheyanu. Fulfilling this mitzvah supersedes the concern about reciting shehecheyanu during the Three Weeks—but it is appropriate to push it off to Shabbos (Mekor Chessed commentary to Sefer Chassidim #840; based on Yerushalmi at end of Kiddushin).

According to the Ari, the reason for not saying a shehecheyanu is not on account of the mourning, but because it is inappropriate to recite a blessing that we should be rejuvenated to this time, which is a very inauspicious period. This reason not to recite shehecheyanu applies even on Shabbos (Magen Avraham; Shu’t Chayim Sha’al #24).

The Gra contends that no halachic source prohibits a mourner from reciting shehecheyanu. Apparently, he also disagrees with the reason attributed to the Ari.

MAY ONE RECITE SHEHECHEYANU ON THE NIGHT OF THE 17TH?

Most poskim hold that one should not (Shu’t Chayim Sha’al #24; Sedei Chemed Vol. 5, pg. 277; Biur Halacha 551:2). However, Rav Moshe Feinstein contends that the mourning period does not start until morning, implying that one may recite a shehecheyanu at night (Shu’t Igros Moshe, Orach Chayim 1:168).

MAY A CHILD RECITE SHEHECHEYANU DURING THE THREE WEEKS?

This depends on the age and maturity of the child. If the child is old enough to appreciate the aveilus that is observed, then we should train him not to say shehecheyanu during the Three Weeks. However, if he or she is not old enough to appreciate the aveilus, but is old enough to recite the shehecheyanu, one may allow him or her to recite the shehecheyanu (Birkei Yosef, Orach Chayim 551:9). There is no need to be concerned that the child is wishing this season to return.

Mishnah Berurah (511:99) permits a pregnant woman or an ill person to eat a new fruit without reciting the shehecheyanu.

According to all opinions, one recites a shehecheyanu when performing the mitzvos of pidyon haben or bris milah (for those who recite a shehecheyanu at a bris). The Rema rules that one may also recite a shehecheyanu on a new fruit that will not be available after Tisha B’Av. Otherwise, one should wait until after Tisha B’Av to eat the fruit or to buy the clothing upon which one would recite shehecheyanu. It is permitted to purchase clothes that do not require a shehecheyanu.

MAY ONE PURCHASE A NEW CAR DURING THE THREE WEEKS?

Rav Moshe Feinstein rules that if the car is being purchased for pleasure or convenience, one should wait until after the Three Weeks to buy it. If, however, it is necessary for parnasah, one may purchase it during the Three Weeks, but one should not recite shehecheyanu until after the Three Weeks (Shu’t Igros Moshe, Orach Chayim 3:80). Some poskim permit buying any necessary appliance, such as a refrigerator or washing machine, to replace one that broke during the Three Weeks (Piskei Teshuvos 551:11).

OTHER HALACHOS OF THE THREE WEEKS

One should not engage in dangerous activities during the Three Weeks (see Shulchan Aruch, Orach Chayim 551:18). For this reason, some do not schedule elective surgery until after Tisha B’Av (Piskei Teshuvos 551:1).

One may bathe, shower, go swimming or go to the beach between the 17th of Tammuz and Rosh Chodesh Av, even if one has not gone swimming yet this season. Although people say that one may not go swimming for the first time during the Three Weeks, there is no halachic source for this practice. It is, therefore, not considered a binding custom, and it is permitted without hataras nedarim (Teshuvos Vehanhagos 2:263).

Some forbid hikes, trips to the beach and other entertaining activities during the Three Weeks (see Sedei Chemed, Vol. 5, pg. 376:10). Some authorities suggest not swimming in dangerous places or in water deeper than one’s height (Teshuvos Vehanhagos 2:263).

FOCUS OF THE THREE WEEKS

The most important aspect of the Three Weeks is to focus on the tremendous loss we suffer because of the destruction of the Beis Hamikdash.Some tzaddikim make a point of reciting tikkun chatzos, wherein we mourn the galus of the Shechina, every night..

Some Sefardic communities in Yerushalayim have the custom to sit on the floor, just after midday, on each day of the Three Weeks, and recite part of tikkun chatzos. To further convey this mood, Yesod Veshoresh Ha’avodah prohibits any laughing and small talk during these weeks, just as a mourner may not engage in laughter or small talk (Sha’ar 9, Chapter 11-12).

Although we may not be on such a spiritual level, we certainly should contemplate the tremendous loss in our spiritual lives without the Beis Hamikdash. Let us pray intently for the restoration of the Beis Hamikdash and the return of the Divine Presence to Yerushalayim, speedily in our days!

Joining Gentiles

Question #1: Client’s celebration

A non-Jewish client is marrying off his daughter and expects his business associates to attend the reception. Knowing him, he expects me to spend a considerable amount of time there. Is this permitted, and, while there, may I eat or drink something that is kosher?

Question #2: Meeting a new client

My boss asked me to attend a lunch meeting with a new client in a non-kosher restaurant. Is this permitted, and, if it is, may I order a cup of coffee or a fruit plate?

Question #3: Company picnics and parties

May I attend the company end-of-year parties and picnics?

Answer:

Each of the above questions involve situations that may arise in today’s professional work environment. The Gemara teaches that the injunctions created by Chazal are dearer to Hashem than Torah laws. In this context, we can explain the vast halachic literature devoted to the many prohibitions created to protect the Jewish people from major sins. These include bishul akum, the prohibition against eating food cooked by a non-Jew, pas akum,which, under certain circumstances, prohibits bread baked by a non-Jew, and sheichar akum, which prohibits drinking certain types of beer in a non-Jew’s home or tavern.

The Rambam codifies these laws as follows: “There are activities that have no basis in the Torah that our Sages prohibited… to make sure that Jews and non-Jews do not … intermarry. These are the prohibitions: They prohibited drinking with them even when there is no concern about sacramental wine [yayin nesech]. They prohibited eating their bread or what they have cooked even when there is no concern that there are non-kosher ingredients or flavors added. What is an example of this prohibition? A person may not drink in a gathering of non-Jews even cooked wine that is not prohibited [as stam yeinam, wine handled by a non-Jew], or even if the Jew drinks only what he brought himself. If most of the assemblage is Jewish, it is permitted. It is prohibited to drink beer made from dates or figs or anything similar. But this prohibition [drinking beer] is prohibited only where it is sold. If he brought the beer home, it is permitted to drink it there, because the primary reason for the decree was that he should not come to eat a meal at a non-Jew’s house” (Rambam, Hilchos Ma’achalos Asuros 17:9-10).

Why is beer different?

There is a very obvious question here: The three other prohibitions mentioned here because of concerns of social interaction – bishul akum, pas akum and stam yeinam – are not dependent upon where you are. Consuming these items is prohibited, regardless of your location. However, the prohibition concerning the beer, as well as the prohibition of eating and drinking with non-Jews, applies only in the non-Jews’ venue.

Among the rishonim, we find several approaches to explain this question. I will present just one approach, that of the Tosafos Rid (Avodah Zarah 65b), who explains that, in the instances of wine, cooked food and bread – the main concern is that you will find the foods served by the non-Jew to be very tasty, and this eventually might lead to inappropriate social interactions. However, in the instance of beer, the concern is not the food, but the socializing – and prohibiting drinking beer where the non-Jew lives and works is a sufficient safeguard to discourage the inappropriate activity.

I have written previously many times on the topics of bishul akum, pas akum, stam yeinam and sheichar akum that are mentioned in this Rambam. I have also written about the questions germane to mar’is ayin implicit in several of the opening questions. However, I have never written on what the Rambam prohibits here: not to drink kosher beverages “in a gathering of non-Jew’s,” nor “to eat a meal at a non-Jew’s house.”

This ruling of the Rambam is subsequently quoted and accepted by all the halachic authorities, including Tur, Shulchan Aruch, Derisha, Shach, Taz, Pri Chodosh, Or Hachayim, Darkei Teshuvah, Chasam Sofer and Igros Moshe.

Rambam’s source

There is much discussion among later authorities attempting to identify the source in Chazal whence the Rambam inferred this prohibition. Among the acharonim, we find several suggestions for the Rambam’s ruling, including mention of some passages of Gemara. Let us examine these sources.

The first instance cited is based on a Mishnah that prohibits many types of financial dealings with an idolater on the days near a pagan holiday, out of concern that he will thank his deity for the business. If this happens, the Jew has “caused” the pagan to worship idols. Bear in mind that being a “light unto the nations” precludes causing someone else to violate his commandment.

The conclusion of this Mishnah states, “When an idolater makes a celebration in honor of his son, it is prohibited to deal only with that man on that day (Avodah Zarah 8a). This conclusion is cited by the halachic authorities (Rambam, Hilchos Avodas Kochavim 9:5; Shulchan Aruch, Yoreh Deah 148:7).

The Gemara adds the following to the discussion: “Rabbi Yishmael said: Jews living in chutz la’aretz are idol worshippers who think that they are acting properly. Why is this? An idolater makes a party to celebrate a family event and invites all the Jews in his town to attend – even if they eat their own food and drink their own beverages and their own waiter serves them, the Torah treats it as if they ate from the offerings of idols.” This passage is also cited by the halachic authorities (Rambam, Hilchos Avodas Kochavim 9:15; Shulchan Aruch, Yoreh Deah 152:1).

At the end of his censure, Rabbi Yishmael quotes the Torah as the source for his ruling: And he calls to you and you eat from his slaughter (Shemos 34:15). The halachic authorities disagree whether this quote demonstrates that this prohibition is min haTorah (Taz, Yoreh Deah 152:1) or only rabbinic (Nekudos Hakesef ad locum).

A potential difference in halacha resulting from this dispute is whether one may attend the event if missing it might antagonize the host (mipnei eivah). The rishonim note that, despite the fact that the Mishnah, quoted above, prohibits dealing with a non-Jew near his holiday, this prohibition does not apply in our day since the non-Jews among whom we live do not worship idols (Rishonim to Avodah Zarah; Tur, Yoreh Deah 148). In addition, even in a situation in which the Mishnah’s concerns are applicable, it is permitted when there are concerns of eivah (Tur, Yoreh Deah 148). The Derisha conjectures whether the prohibition against attending a party applies in a situation of eivah (Derisha, Yoreh Deah 152:1). As we will soon see, Rav Moshe Feinstein ruled leniently in this last issue.

Achashveirosh’s party

A different source cited as basis of the Rambam’s ruling is a passage of Gemara which states that the reason why the Jews in the era of Haman deserved to be destroyed (before they did the teshuvah brought about by Mordechai and Esther) was because they enjoyed the party thrown by Achashveirosh (Megillah 12a).

Several later authorities question whether these sources are indeed the origins of the Rambam’s prohibition (cf. Lechem Mishneh; Mirkeves Hamishneh; Aruch Hashulchan; Tzafnas Panei’ach). However, whether or not we know the source of the Rambam’s ruling, all authorities accept it to be binding.

How did the Rambam ascertain that this prohibition exists only when a majority of the people at the meal are not Jewish? The following passage of Gemara is quoted as a possible source: Shmuel, the great amora, and Avleit, a non-Jewish friend of his who is mentioned frequently by Chazal (Shabbos 129a, 156b; Avodah Zarah 30a; Yerushalmi, Shabbos 3:3 and Beitzah 2:5; Midrash Lekach Tov, Parshas Shoftim), were eating a meal together when they were brought some yayin mevushal, wine that had been cooked. Avleit, who was familiar with his friend’s Jewish customs, adjusted himself so that he would not touch the wine and prohibit it for Shmuel. Shmuel then explained to Avleit that the prohibition against using wine handled by a non-Jew does not apply to yayin mevushal. The question raised by some authorities is, how could Shmuel have been enjoying a repast together with Avleit when it is prohibited to eat a meal or drink wine at a non-Jew’s house? The Lechem Mishneh answers that since only Shmuel and Avleit were eating, there was no non-Jewish majority at the meal and, therefore, it was permitted (Avodah Zarah 30a).

However, this argument is weak for a few reasons, as noted by several later authorities. For one matter, there is nothing to indicate that Shmuel and Avleit were at a non-Jew’s venue? Furthermore, is two people eating together considered a party (Aruch Hashulchan)? We would usually assume that a “party” involves a large number of people — although from Esther’s party, mentioned in the Purim story, we can derive that three is not only company but also a party.

In this context, Rav Moshe Feinstein was asked the following question: May a yeshiva conduct a parlor meeting in the home of a non-Jew? Rav Moshe prohibits this although he permits attending a personal celebration of a non-Jew conducted in a non-Jewish venue where it is difficult to provide a good excuse for one’s absence. Rav Moshe permits this so as not to antagonize the non-Jew. Since this is why one may attend, Rav Moshe permits drinking kosher beverages, and presumably would also permit eating kosher food. However, this does not permit conducting a parlor meeting in a non-Jew’s home, since Jews are choosing to conduct this celebration there (Shu’t Igros Moshe, Yoreh Deah 2:117).

Client’s celebration

At this point let us examine one of our opening questions: “ A non-Jewish client is marrying off his daughter and expects his business associates to attend the reception. Knowing him, he expects me to spend a considerable amount of time there. Is this permitted, and, while there, may I eat or drink something that is kosher?”

According to Rav Moshe Feinstein, I may attend the wedding and eat and drink kosher food while there if my absence might antagonize the client.

Company picnics and parties

May I attend the company end-of-year parties and outings?

The reasons why it might be permitted to attend these functions include offending people and loss of livelihood. It would seem to be permitted if you do not eat or drink there with everyone else. A talmid chacham I know went to the company’s annual picnic and spent his time while there on the ball fields. The other employees assumed that he was a baseball enthusiast, while his family was surprised to discover that he owned sneakers and a baseball glove!

Mostly Jews

Here is another heter that sometimes applies: Because the Rambam wrote, “If most of the assemblage is Jewish,” the Pri Chadash permits this when there are more Jewish attendees than non-Jews.

Conclusion

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. However, Chazal clearly felt that there is a difference between acting as a role model while behaving according to Hashem’s wishes, and social interactions, which can lead to undesirable outcomes.

Must I Immerse a Candy Dish?

Both parshiyos Balak (read this week in Eretz Yisrael) and Chukas (read in chutz la’aretz) discuss relationships with non-Jews, and therefore are appropriate parshiyos to discuss the mitzvah of tevilas keilim.

Question: A Sweet Saga

Avraham Sweet, the proprietor of Candy Andy, wants to know.

“I have a gift business in which I sell glass candy bowls filled with candies, fruits, and nuts. Must I toivel these dishes before I fill them?”

Introduction:

In Parshas Matos, the Torah teaches: Regarding the gold and the silver; the copper, the iron, the tin and the lead: any item that was used in fire needs to be placed in fire to become kosher, yet it must also be purified in mikveh water. In addition, that which was not used in fire must pass through water” (Bamidbar 31:22-23). From these verses we derive the mitzvah of tevilas keilim — The mitzvah to immerse metal implements in a mikveh or spring prior to using them for food. The Gemara (Avodah Zarah 75b) notes that this immersion is required even if the vessel has never been used. In other words, this mitzvah is unrelated to the requirement of koshering equipment that was used for non-kosher food or to the laws related to purifying implements that became tamei.

The Gemara (Avodah Zarah 75b) further states that in addition to metal items intended for food use, we are also required to immerse glass dishes, because both metal and glass share a similarity – they are repairable by melting and reconstructing, or, as we would say, they are recyclable. This renders them different from vessels made of stone, bone, wood or earthenware, all of which cannot be repaired this way.

What types of dishes must be immersed?

The Gemara cites a highly instructive dialogue about the mitzvah of immersing vessels:

“Rav Nachman said in the name of Rabbah bar Avuha: ‘One can derive from the verse that one must immerse even brand new items, because used vessels that were purged in fire are as kosher as those that are brand-new, and yet they require immersion.’

Rav Sheishes then asked him: ‘If it is true that the mitzvah of immersing vessels is not because of kashrus concerns, maybe one is required to immerse even clothing shears?’

Rav Nachman responded: ‘The Torah only mentions vessels that are used for meals (klei seudah)’“ [Avodah Zarah 75b].

Rav Sheishes suggested that if immersing utensils has nothing to do with kosherizing utensils used for non-kosher, perhaps this mitzvah applies to all paraphernalia — even cameras, cellphones and clothing shears!

To this, Rav Nachman retorted that since the Torah mentions only implements used for a meal, the mitzvah of tevilas keilim applies only to utensils used for preparing and consuming food, not those intended for other purposes.

Klei seudah – appliances used for meals

Rav Nachman did not require that all food preparation utensils be immersed, only klei seudah, items used for meals. Soon, we will see how this detail affects many of the halachos of tevilas keilim. But, what exactly are considered klei seudah, and how is this different from simply saying that all food preparation utensils must be immersed?

Klei sechorah — “merchandise”

The halachic authorities note that a storekeeper is not required to immerse vessels he has for sale, since for him they are not utensils with which he intends to prepare food or eat. Later authorities coin a term “klei sechorah,” utensils used as merchandise, ruling that these items do not require immersion until they are purchased by the end user (see Taz, Yoreh Deah 120:10). Furthermore, several halachic authorities contend that not only is the storekeeper not required to immerse the utensils prior to sale, if he immerses them, it is not valid, since there is, as yet, no requirement to immerse them (Shu”t Minchas Yitzchak 8:70). This is based on a comment of the Rama implying that tevilah performed before the obligation to immerse a utensil exists, such as while it is still owned by the non-Jew, does not fulfill the mitzvah, but must be repeated after the utensil becomes the property of a Jew (Rama 9). Thus, reciting a beracha on this too-early tevilah would be a beracha levatalah.

Based on this discussion, we can now address one of our above-mentioned questions:

“I have a gift business in which I sell candy bowls filled with candies, fruits, and nuts. Must I toivel these dishes before I fill them?”

This question is a modification of a situation in which I was once involved. We received a glass candy bowl as a gift from someone with a note that the proprietor had already toiveled the bowl. I called the owner of the business to inform him that, in my opinion, not only is he not required to toivel the dish, but I suspect that the tevilah does not help. My reasoning is that, although the proprietor fills the bowls with nuts and candies, from his perspective this is merchandise that he is selling. The dish therefore qualifies as klei sechorah that one need not immerse, and immersing them does not fulfill the mitzvah. As a result, not only is the proprietor not obligated to immerse the dishes, but doing so fulfills no mitzvah, and it is a beracha levatalah for him to recite a beracha on this tevilah. Including a note that the dish was toiveled is detrimental, since the recipient will assume that he has no requirement to toivel this dish, when the end-user is required to immerse it. For these reasons, I felt it incumbent on myself to bring this to the attention of the owner of the business.

The proprietor was very appreciative. He told me that, in truth, it was a big hassle for him to toivel the dishes, but he had been assuming that halacha required him to do so before he could fill them.

Shortly after writing these words, I received the following shaylah:

“I want to ask you whether one must toivel an item that is being given away as a present. When I studied the topic, I concluded that, even if I purchase a utensil that requires tevilah, but I am planning on giving it to someone, it does not have a chiyuv tevilah until it reaches the recipient’s hands. Only then does it become kli seudah. This would also apply, for example, if someone gave a shalach manos bowl filled with candy, etc; the utensil wouldn’t require tevilah until the person receives it. What do you think?”

To which I answered:

“It seems to me that since one is purchasing the item for someone’s personal use, and not to sell, that it should have a chiyuv tevilah at this point. Only items meant to be merchandise are absolved from tevilah.”

I received the following response:

“Who says that the recipient is going to use the utensil at his table? Indeed, I had the very same shaylah tonight. My wife took a small receptacle that was holding a plant, filled it with nuts and dried fruit, and brought it to someone as a present. Who said that the recipient will use it afterwards for food? Maybe it will be a candle holder, a decorative piece, etc. It doesn’t become kli seudah until she decides what she will use it for.”

The point the correspondent is making is that it may indeed be that this item will never be a food utensil, and therefore never be required to be immersed. Only the end user determines whether the item is indeed a food utensil, and therefore until he decides what to do with it, there is no requirement to immerse it.

Conclusion

According to Rav Hirsch, metal vessels, which require mankind’s mining, extracting and processing, represent man’s mastery over the earth and its materials. Whereas vessels made of earthenware or wood only involve man shaping the world’s materials to fit his needs, the manufacture of metal demonstrates man’s creative abilities to utilize natural mineral resources to fashion matter into a usable form. Consuming food, on the other hand, serves man’s most basic physical nature. Use of metal food vessels then represents the intellectual aspect of man serving his physical self, which, in a sense, is the opposite of why we were created, which is to use our physical self to assist our intellect to do Hashem’s will. Specifically in this instance, the Torah requires that the items hereby produced be immersed in a mikveh before we use them to endow them with increased kedusha before they are put to food use. This demonstrates that although one may use one’s intellect for physical purposes, when doing so one must first sanctify the item to focus on the spiritual.

Separating Terumah and Maaser

Shampooed Tevel

“I have been looking for a specialty shampoo that contains oat bran. Someone found it in a very expensive store, and it does exactly what I want. One day, after showering, I noticed the label says that it is made in Israel! Does this mean that it is prohibited as tevel (produce that did not have terumah or maaser separated)?”

Introduction

The end of parshas Korach contains many references to various mitzvos that the Torah calls “terumah.” In Modern Hebrew, any charitable donation is called a “terumah,” but, in the Torah, this word means an “elevated portion” and can refer to numerous sanctified foods, including korbanos, challah, bikkurim, maaser, and what we usually call terumah and terumas maaser. The fact that the term “terumah” may refer to so many different things is one reason why a superficial reading of the end of parshas Korach can be confusing, unless you study it with Rashi or a different commentary (such as that of Rav Hirsch) that explains the parsha according to the Torah she’be’al peh.

The pesukim in parshas Korach that discuss what we call terumah read as follows: “And Hashem spoke to Aharon: Behold, I have hereby given you the guarding of my terumah… Of the best of the oil, of the best of the wine (tirosh) and grain, the first of what is given to Hashem I have given to you (Bamidbar 18, 1,12).”

Note that the Torah mentions terumah of oil, referring to the olive crop, of tirosh, usually understood to mean as yet unfermented wine (also known as unpasteurized grape juice), and of grain. This implies that the mitzvah min haTorah of separating terumah applies only to olive oil, wine and grain. Indeed, most authorities understand that, min haTorah, the requirement to separate terumos and maasros applies only to the five species of grain (wheat, barley, spelt, rye and oats), grapes, olives, grape juice, wine and olive oil (see Sifra). The requirement to separate terumos and maasros on other fruits and vegetables is rabbinic.

In Chazal’s terminology, the various gifts provided to the kohein and others are called matanos, gifts. These matanos have varying levels of sanctity:

A. Very holy, that may be eaten only by male kohanim in the Beis Hamikdash and only when someone is completely tahor;

B. Somewhat less holy, that min haTorah may be eaten anywhere by a kohein’s immediate household, provided that they are completely tahor;

C. Lesser sanctity that may be eaten by anyone, but only in Yerushalayim and when tahor;

D. No sanctity at all, and, although required to be donated, may be eaten by anyone.

Seven of these “gift” agricultural mitzvos or matanos can be organized in the following way:

1. Bikkurim (sanctity level: B)

The first fruits of the seven species for which Eretz Yisrael is lauded, which are brought to the Beis Hamikdash. These are treated with the same level of sanctity as terumah¸ which we will explain shortly.

2. Terumah gedolah, usually called just “terumah(sanctity level: B)

The separation from produce grown in Eretz Yisrael that the Torah requires we give to the kohein. There is a requirement miderabbanan to separate terumah and maasros also outside Eretz Yisrael, but, according to most authorities, only in lands that are adjacent to Eretz Yisrael. (Because of space considerations, we will not be discussing the vast halachic literature that debates whether there is a requirement to separate terumos and maasros today in countries like Egypt, Lebanon, Syria and Jordan, which border on Eretz Yisrael. For the same reason, we will not discuss where the borders of Eretz Yisrael are, germane to these mitzvos.We will also not discuss the question as to whether there is a mitzvah to separate terumos and maasros on produce grown by a non-Jew on a non-Jew’s land, because the accepted practice, going back hundreds of years, is to be lenient.)

How much terumah?

Min haTorah, there is no minimal requirement how much terumah one must give to a kohein; to quote Chazal, one wheat kernel given as terumah exempts an entire silo. In the days when the kohein could become completely tahor and then eat the terumah, Chazal instituted a minimal percentage of the crop that should be designated as terumah (one part in sixty, or 1.67%), but preferred that an individual give more. They allowed the individual latitude to decide how much he wants to donate as terumah: one part in forty (2.5%), one part in fifty (2%), or the minimum I mentioned above, one part in sixty (1.67%).

Produce that has not yet had terumos and maasros separated is called tevel, and may not be eaten or used.

We should also note that, according to accepted halacha, the obligation of separating terumos and maasros today is only miderabbanan, even on grain, grapes, and olives, until such time that most Jews, again, live in Eretz Yisrael.

3. Maaser rishon (sanctity level: D, but only after the terumas maaser is separated)

The first tithe (one tenth), given to the levi.

4. Terumas maaser (sanctity level: B)

A tithe separated by the levi from the maaser rishon that he receives, which the levi then gives to a kohein. Since the levi receives ten percent of the crop after terumah has been separated, and he, in turn, is separating ten percent of what he receives, terumas maaser adds up to one hundredth, 1%, of the crop.

Terumah and terumas maaser have the same sanctity, which means that, min haTorah, both of them may be eaten anywhere, but only by a kohein and most of his family and household members and only when both they and the terumah are completely tahor.

The accepted halacha is that the remaining maaser rishon has no sanctity, and may be eaten by anyone, notwithstanding the fact that there is a dispute among tana’im concerning this issue. If the levi chooses to, he may sell the maaser or give it away to whomever he chooses. Furthermore, none of the restrictions we will discuss shortly regarding redemption or use applies to maaser rishon.

A kohein or levi who has his own produce must separate terumos and maasros, although he may then keep what he is entitled to as a kohein or levi (Rambam, Hilchos Maasros 1:13; for details of this law, see Mishpetei Aretz, Terumos Umaasros 13:9).

5. Maaser sheini (sanctity level: C)

A second tithe, separated in the first, second, fourth and fifth years of the seven-year shemittah cycle, that the owner keeps with plans to eat in Yerushalayim when he is tahor. Alternatively, the owner may redeem the maaser sheini’s kedusha onto coins. The coins are brought to Yerushalayim and used to purchase food that is eaten in Yerushalayim. Maaser sheini that is tahor may be eaten by anyone who is tahor and maaser sheini that is redeemed may be eaten by anyone and does not need to be kept tahor.

6. Maaser ani (sanctity level: D)

A different form of “second tithe,” given in years when there is no maaser sheini (i.e., the third and sixth years of the shemittah cycle), that is given to the poor. Once separated, this maaser has no special sanctity and may be eaten by anyone, even by someone who is tamei, but it is property of the poor. The owner of the field decides to which poor person he gives the maaser ani.

Since shemittah produce is ownerless, there are, usually, no terumah and maasros separations that year. In the unusual instances where there are, which is a topic for a different time, there is extensive halachic discussion whether one separates maaser sheini or maaser ani.

7. Challah (sanctity level: B)

A portion given to the kohein separated from dough. This “gift” has the level of sanctity of terumah.

Separating and giving

In general, most of these matanos require two stages to fulfill the mitzvah. The first stage is the proper separation, usually preceded by a brocha, and the second stage is giving the matanah to the appropriate party. As I mentioned above, in the case of maaser sheini, the owner keeps or redeems the produce (rather than giving it to someone). After redeeming maaser sheini, the fruit has no more sanctity.

There are several situations in which there is a mitzvah to separate terumos and maasros, but there is no mitzvah to give the matanah to a kohein, levi or poor person. The most common situation is when it is uncertain, a safek, whether there is a requirement to separate terumos and maasros. We will discuss shortly one such example. In these instances, you are not required to give away the terumos and maasros. They are yours to sell, or even to eat, if there is no sanctity involved, such as maaser rishon or maaser ani (Shulchan Aruch, Yoreh Deah 371:1).

There is another practical halachic difference when it is uncertain if there is a requirement to separate terumos and maasros: no brocha is recited prior to separating the terumos and maasros.

Using terumah

In today’s world, terumah has relatively little market value. Terumah tehorah may be eaten only by a kohein or his family members who are tehorim. Since we have no parah adumah, we cannot become fully tehorim today and therefore, no one can eat terumah tehorah.

Although terumah may not be eaten today, there are still two potential uses that may be made of terumah. Terumah olive oil may be kindled, but the light must be used by a kohein. If the terumah olive oil is tehorah,care must be taken not to make it tamei. Terumah temei’ah may be used by a kohein for kindling without this concern.

There is also the possibility of using terumah for feeding animals owned by a kohein, a topic that I will leave for a different time, because of space considerations.

The question now becomes what to do with terumah tehorah that has no practical use.

At the beginning of this article, I quoted the pasuk that Aharon was instructed regarding the guarding of my terumah. The term guarding, mishmeres, means that one is required to make sure the terumah is not actively destroyed or made tamei.

Since no one is tahor today, terumah may not be eaten. If the terumah is itself tamei, it is destroyed, preferably by burning it. If the terumah is tehorah, we are neither permitted to eat it nor to destroy it because of the law of mishmeres. What does one do with it?

This is a dispute among halachic authorities, and one of the unusual situations in which Rav Moshe Feinstein disagreed with the opinion of rishonim, without finding a source in rishonim that agreed with him. According to the Sefer Haterumah and the Tur (Yoreh Deah, 331), the halacha requires that terumah tehorah be buried, so that no one mistakenly eats it. Rav Moshe rules that this is considered destroying terumah, since this causes the terumah to rot, which is prohibited. Instead, he requires placing the terumah tehorah in a place where it will be left undisturbed until it decays (Shu’t Igros Moshe, Yoreh Deah 3:129). A bin or box set aside for this purpose is called a pach terumah, where the terumah tehorah remains until inedible. When it decomposes to this extent, one may dispose of the produce in the regular garbage.

Why is this true?

Once terumah or tevel can no longer be eaten,  it loses its sanctity. Although the concept that decay eliminates sanctity seems unusual, this is only because we are unfamiliar with the mitzvos where this principle applies. Other mitzvos where this concept exists are shevi’is, terumah, challah, bikkurim, maaser sheini and reva’ie (Rambam, Hilchos Terumos Chapter 11; Hilchos Maaser Sheini 3:11; Hilchos Shevi’is 5:3). We burn the special challah portion after separating it only because it has become tamei. If the challah did not become tamei, one may not destroy it but must place it somewhere, until it decays on its own.

Shampooed tevel

At this point, we can discuss our opening question:

“I have been looking for a specialty shampoo that contains oat bran. Someone found it in a very expensive store, and it does exactly what I want. One day, after showering, I happened to look at the label and noticed that it says that it is made in Israel! Does this mean that it is prohibited as tevel?”

Indeed, our questioner may have surmised correctly that the oat bran mighthave once had the status of tevel. If the oats were grown for food, one would be required to separate from them terumos and maasros, and the oats would have a status of tevel until these are separated. However, if the oats were grown for animal feed, there would be no requirement terumos and maasros and no status of tevel. because oats are commonly grown as forage.

More germane to our discussion is that, even if the oats were grown for food, once mixed into the shampoo as an ingredient, they become inedible and lose their status as tevel. Whether they naturally decayed to a stage where they became inedible or were processed or mixed until that point, the kedusha of tevel, terumos and maasros is lost. So, our consumer may continue using the shampoo without any halachic concerns.

Other terumah rules

Cultivated food items, other than grain, grapes and olives, that grew in Eretz Yisrael are obligated in terumos and maasros miderabbanan. There are a few interesting exceptions: for example, there is no obligation to separate terumos and maasros from mushrooms; since they are fungi, they are not considered as growing from the ground. This also affects their brocha, which is shehakol and not ha’adamah.

If I might digress, here is an interesting nifla’os haborei experiment that you can perform yourself. Take some raw vegetables and microwave them for two minutes, and then do the same with some raw mushrooms. When you microwave the mushrooms there will be a considerable amount of water, which does not happen when you microwave the veggies. The reason is that vegetables draw water from the earth through their root, and therefore have no need to store a lot of water in the plant itself. However, mushrooms have no means to draw nutrients, including water, from the soil, and therefore store the water that they need in their cells. When you microwave them, this water is now released.

Ownerless produce

There is no requirement to separate terumos or maasros from produce that is ownerless, such as wild-growing wheat. Similarly, that which grows during shemittah year and is treated as hefker is exempt from terumos and maasros.

Plants grown as fodder, borders, cloth, seed, dyes or anything other than food are exempt from terumos and maasros. If part of the plant is eaten, but the seeds are usually not, the seeds are exempt from terumos and maasros. Rav Shelomoh Zalman Auerbach ruled that produce such as barley, oats and corn (maize), which are predominantly grown as fodder, are exempt from terumos and maasros, unless they were originally planted for human consumption. In his opinion, if they were planted for food, and the farmer subsequently changed his mind and decided to use them as fodder, they are still obligated in terumos and maasros, since they were originally planted for food (Maadanei Aretz, Terumos 2:7:2).

Herbs and spices

As a general rule, plants grown for use only as herbs, spices or tea are exempt from terumos and maasros. It is disputed whether plants whose product is sometimes eaten as a dip is exempt from terumos and maasros. Therefore, accepted practice is to separate terumos and maasros from them without reciting a brocha first, and the owner may then keep the terumos and maasros, as explained above.

What does this mean in practice? Plants such as aloe vera (usually not eaten, but even when consumed, only as an herb), cinnamon, cloves and nutmeg are all exempt from terumos and maasros. However, mustard, ginger and fenugreek should have terumos and maasros separated without a brocha. Although all three of these are used as spices, they also are made into dips or other foods, such as prepared mustard, candied ginger, or chilba, a popular Yemenite dip whose main ingredient is fenugreek.

Peels and shells of fruit that was not maasered are exempt from terumos and maasros if the peels and shells are usually not eaten. However, the peels of apples, pears and plums must be maasered, either as part of the entire fruit, or by themselves. In places where watermelon seeds are considered a snack food, as in Eretz Yisrael today, they are obligated in terumos and maasros. The Chazon Ish ruled that candied orange peel is exempt from terumos and maasros because oranges are not grown for the peel; it is a by-product that someone figured out how to make useful.

Many years ago, when I was involved in kashrus supervision in North America, a similar shaylah was raised. A company that I was overseeing produced, predominantly, various citrus and mint flavors and products, many of them extracted or distilled. Among the many raw materials that were used were oils extracted from the peels of various citrus fruits, which were then processed and used as flavors. Some of the oils were extracted from Israeli produce, and the question was whether there was a requirement to separate terumos and maasros from these peels. The poskim of the kashrus organization ruled that there was no requirement to do so, since peels of citrus fruits are not usually eaten.

Conclusion

Many generations had to be content with reading about Eretz Yisroel and imagining what it might be like to visit. We are fortunate to live in a time when visiting and living in Eretz Yisroel is a reality, and we should be filled with hakoras hatov that we can traverse the land that was promised to our forefathers. Inhabiting our native land includes many special laws that apply within its borders, and we should all be familiar with these special laws. Eretz Yisroel and its special mitzvos provide us with a direct relationship with Hashem, for which we should all strive.

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