Situation #1: Richard

Richard was born into a non-observant family and married a woman who keeps a kosher home, but she is not interested in becoming more observant. Richard is under the impression that, going back a few generations, his mother’s family was not originally Jewish, and, as far as he is aware, never was observant; yet his mother’s kesubah, which was written up and witnessed by a talmid chacham, identifies her as Jewish from birth. Does this mean that he is halachically Jewish and can wear tefillin and be counted as part of a minyan?

Situation #2: Gail

Gail does not think that her maternal grandmother was born Jewish, but she has little information about that part of her family.

Situation #3: Julia

Julia’s mother always told her that she was Jewish, although she grew up in an area with few Jews and no Jewish community. Recently, she has discovered that her mother is fond of inventing stories about her life, and Julia’s father tells her that he never believed that Mom is Jewish.

Situation #4: Norman

Norman, who was not raised Orthodox, has since become fully frum, is married and has children. Years ago, his bar mitzvah was at a local Orthodox synagogue, but his mother was not Jewish at the time. The rabbi had him undergo a conversion, but he has no recollection whether this was before or after his bar mitzvah, and he was certainly not interested in being observant at the time, so any statement that he was planning to observe mitzvos would not have been serious.

Introduction:

Although I have made some modifications to the above stories, each represents a shaylah that I have been asked. In all four situations, and for literally thousands of similar individuals, their status as Jews is unclear. This article is not intended to provide halachic ruling for any individual, who should address their specific question to a posek.

Korban Pesach

The Gemara in Pesachim (3b) records the following event. A non-Jew came to Rabbi Yehudah ben Beseira, taunting him that, although the Torah states in parshas Bo, kol ben neichar lo yochal bo (Shemos 12:43), kol areil lo yochal bo (ibid. Verse 48) — any son of a stranger (i.e., who is not Jewish) may not eat from it (the korban Pesach), no one uncircumcised may eat from it — he had successfully posed as Jewish and eaten the best cuts of the korban Pesach on a number of occasions. Without batting an eyelash, Rabbi Yehudah ben Beseira turned to the gentile and asked him if they ever offered him to eat the alyah, the fatty tail of sheep that was a prized delicacy. Thereby, Rabbi Yehudah ben Beseira implied to the non-Jew that they had given him only the scrawny parts of the korban, not the juicy, tasty parts that they reserved for the gentry (see Rashi).

Upon his return to the Beis Hamikdash the following Erev Pesach, the gentile requested the alyah portion, not realizing that he had thereby fallen into Rabbi Yehudah ben Beseira’s trap: the alyah is offered on the mizbei’ach. When they asked the non-Jew who told him to ask for the alyah, and he told them that it was Rabbi Yehudah ben Beseira, the people in Yerushalayim now realized that something serious was amiss. They researched the matter, discovered that the fellow was a charlatan, and made certain he would never give them trouble again. The Torah leadership then sent a message to Rabbi Yehudah ben Beseira that although he was very distant from the Beis Hamikdash and unable to attend the offering of the korban Pesach (see Tosafos ad loc. s.v. Ve’ana), his trap set from quite a distance had snared its prey.

This story provides opportunity to discuss the following problem, raised by Tosafos and other rishonim: How was this gentile able to attend the Beis Hamikdash on Erev Pesach and pretend that he was Jewish? Did he not have to bring proof that he was Jewish before being allowed to consume korban Pesach? May anyone claiming to be Jewish be believed, without having to produce a driver’s license, passport or other photo identification?

Tosafos notes that our story does not prove that this conclusion is true. Indeed, someone claiming he is Jewish might require proof, but, since most of those who attended the korban Pesach procedures were Jewish, there was no need for someone to bring additional proof. Halachically, we accept the principle of rov, that we follow the majority, which includes that someone in a place where most people are Jewish may not be required to prove that he is, too. This is similar to the halachic rule that, although the milk of an animal containing unknown internal injuries, tereifos, is not kosher, we may drink milk, assuming that the cow is kosher, since most living animals are kosher. This is a very useful ruling, because if we needed to prove that every cow whose milk we drink is kosher, it would increase the price of kosher milk considerably.

Shidduch crisis

Tosafos notes that other passages of Gemara imply that someone is accepted as Jewish on their say so, without any other proof. For example, the Gemara (Yevamos 45a) quotes several amora’im who contend that someone whose mother is Jewish, but not his father, is halachically Jewish, a principle called matrilineal descent. (Compare, however, Shu”t Chemdas Shelomoh, Even Ha’ezer #2, who quotes an extensive responsum from Rav Yaakov Loeberbaum of Lissa, the author of the Nesivos Hamishpat and many other major halachic works, who understands this passage of Gemara differently.) Subsequently, the Gemara quotes several anecdotes in which sons of such relationships wanted to marry, but were having difficulty finding a shidduch; Rava advised one to move to a place where his genealogy was unknown, in order to find a shidduch.

Tosafos questions: If this person whose father is not Jewish has to prove his lineage wherever he goes, how does this self-imposed exile help? Tosafos concludes (in both Pesachim and Yevamos) that someone presenting himself as Jewish does not need to prove it. Therefore, someone whose father is not Jewish will be able to keep his personal family circumstances a secret.

When the Rambam quotes this law, he records the following: “Someone who came and said, I was a non-Jew and now I have properly converted in beis din, he is believed (without any other proof, because without his saying so we would have no basis to assume that he was once non-Jewish). This is true in Eretz Yisroel, in an era when we could assume that everyone is Jewish. However, outside Eretz Yisroel, he needs to bring proof before he may marry a Jewish woman. In my opinion, this requirement is a stringency created by Chazal to protect proper yichus” (Hilchos Issurei Bi’ah 13:10). The Ra’avad disagrees, contending that, whether he is in Eretz Yisroel or in chutz la’aretz, and regardless of what era he is in, he is required to bring proof that he is Jewish before he marries.

Three opinions

Thus, it appears that we have three differing opinions among the rishonim:

1. Tosafos, who rules that he is never required to prove that he is Jewish, even to marry. It should be noted that this is probably true only when the individual is living a frum lifestyle.

2. The Rambam, who rules that, in Eretz Yisroel, at a time that we would assume that everyone is Jewish, he may marry without any evidence proving his Jewish identity, but, in all other times and places, he must prove he is Jewish to marry, but not for any other benefits.

3. The Ra’avad, who rules that, in all times and places, he must prove he is Jewish to marry. (Also see Yam shel Shelomoh, Kesubos 2:40, who cites, without sources or clarification, the opinions of Rashi and the Remah, who dispute some of what we have written above. However, the Maharshal, the author of the Yam shel Shelomoh, does not provide the sources whence he derived these conclusions from the writings of Rashi and the Remah; it appears that their position may have been similar to that of the Ra’avad.)

How do we rule?

As the primary opinion, the Shulchan Aruch (Yoreh Deah 268:10) quotes Tosafos, although he also then mentions the Rambam’s position. However, several major authorities understand that the Rambam agreed with Tosafos that someone arriving in our community, presenting himself as born Jewish, does not need to prove this. They explain that the Rambam contends only that someone who admits to having once been non-Jewish must provide evidence that he had a proper conversion to allow him to marry (Yam shel Shelomoh, Kesubos 2:40; Bach, Yoreh Deah 268; Shach, Yoreh Deah 268:21). This approach to understanding the Rambam explains how the Rambam can easily explain the Gemara (Yevamos 45a), quoted above, that advised someone to hide his family’s past and get married, without any other proof. This individual,  who had a non-Jewish father but a Jewish mother, was Jewish from birth and, therefore, exempt from providing any other proof to verify his being Jewish.

It should be noted that the Migdal Oz (Hilchos Issurei Bi’ah 13:10)and the Gra (Yoreh Deah 268:25) provide a different approach to explain the Rambam, based on a passage in Mesechta Geirim (4:4), which they both accredit to the Talmud Yerushalmi, that seems to conflict with the Gemara in Yevamos. The Gra’s halachic conclusion agrees with that of the Shulchan Aruch.

Halachic conclusion

In summary, the following are the halachic conclusions:

• Someone that we know was not Jewish and claims to have been properly converted must prove that he underwent a proper conversion (Tosafos, Yevamos 47a s.v. Bemuchzak quoting Rabbeinu Tam; Shulchan Aruch, Yoreh Deah 268:10).
• Someone claiming to be Jewish from birth is believed, without any proof, even to marry (Shach, Yoreh Deah 268:21).
• Someone claiming that he was properly converted, about whom we have no previous information whether he is Jewish or not, is a subject of dispute, whether he needs to prove that he was properly converted in order to marry. However, if he is observant, we accept him as fully Jewish for all other halachos (see Shulchan Aruch, Yoreh Deah 268:10; Shach, Yoreh Deah 268:21; Aruch Hashulchan, Yoreh Deah 268:14).

Why is he believed?

At this point, I would like to discuss a question that underlies what the rishonim have concluded. Why is someone believed on his own that he is Jewish? What is the halachic reasoning behind this assumption?

I have found three answers to this question:

1. Tosafos (Yevamos 47a s.v. Bemuchzak) states that there is a concept of rov, majority – meaning that most people who act like frum Jews and claim to be Jewish are indeed Jewish.

2. The Tiferes Yisroel (Kesubos 2, Boaz 1) questions Tosafos’s approach by noting that most people in the world are not Jewish. Therefore, he suggests a different approach: when an individual claims he is Jewish, he requires himself to observe all the laws of Shabbos, kashrus, etc., which he is not required to do if he is not Jewish. It is difficult to imagine that someone would do this, if he were not, indeed, already observing these mitzvos.

3. The Tiferes Yisroel then shares another option, which is very similar, and perhaps logically identical, to that of Tosafos,although he explains it in a slightly different way than Tosafos does. Someone who observes halacha as a frum person has a chazakah that he is Jewish, and there is no further reason to require him to prove that he is Jewish (see Yevamos 47a; Kiddushin 80a).

It would seem that all three approaches we have presented accept that only someone who is clearly religiously observant when he presents himself as Jewish is believed.

Situation #1: Richard

Richard was born into a non-observant family and married a woman who keeps a kosher home, but neither he nor his wife are interested in becoming more observant. He is under the impression that, going back a few generations, his mother’s family was not originally Jewish, and, as far as he is aware, never was observant; yet his mother’s kesubah, which was written up and witnessed by a talmid chacham, identifies her as Jewish from birth. Does this mean that he is halachically Jewish and can wear tefillin and be counted as part of a minyan?

At the time that this shaylah came up, I asked Rav Yisroel Belsky, zt”l , who answered me that once we saw that a talmid chacham wrote a kesubah assuming that Richard’s mother was born Jewish, this becomes the accepted halacha. Therefore, Richard is assumed to be Jewish for any halachos.

Situation #2: Gail

Gail does not think that her maternal grandmother was born Jewish, but she has little information about that part of her family.

Answer:

Gail is now living a fully frum lifestyle. As such, for all halachos, those around her should assume that she is Jewish. The only question is whether she can marry someone Jewish. Since she has no proof of her Jewish identity, according to some authorities she may not marry someone Jewish. As opposed to Richard, Gail has no evidence that her grandmother and mother are Jewish. Therefore, Gail was advised to have a giyur lechumra, meaning to undergo a geirus process, but without reciting any brachos when immersing in the mikveh, because of safek brachos lechumra — when we are uncertain about whether to recite a brocha, we do not do so. She subsequently married a fine, frum-from-birth young man.

Situation #3: Julia

Julia’s mother always told her that she was Jewish, although she grew up in an area with few Jews and no Jewish community. Recently, she has discovered that her mother is fond of inventing stories about her life, and Julia’s father tells her that he never believed that Mom is Jewish.

Since Julia is now living a fully frum lifestyle, other people should assume that she is Jewish. However, there is major uncertainty whether or not to believe her mother, and, therefore, I advised her to undergo a geirus procedure.

Situation #4: Norman

Norman, who was not raised Orthodox, has since become fully frum, is married and has children. Years ago, his bar mitzvah was at a local Orthodox synagogue, but his mother was not Jewish at the time. The rabbi had him undergo a conversion, but he has no recollection whether this was before or after his bar mitzvah, and he was certainly not interested in being observant at the time, so any statement that he was planning to observe mitzvos would not have been serious.

Does Norman need to have another conversion procedure?

The answer to this question takes us a bit afield from our topic at hand, but I will supply some of the information in a cursory way. If the conversion process was performed before Norman was bar mitzvah, there are halachic authorities who would rule that he is certainly Jewish, but there are others who might question this, depending on the circumstances. Therefore, it was advised that he perform geirus leshufra demilsa, which means a geirus that may not be necessary, but resolves all issues. This was expedited very discreetly and very swiftly.

Conclusion – geirim are special

A geir tzedek should be treated with tremendous love and respect. Indeed, the Torah gives us a special mitzvah to “Love the geir,” and we daven for them daily in our Shmoneh Esrei! Throughout the years, I have met many sincere geirim and have been truly impressed by their dedication to Torah and mitzvos. Hearing about the journey to find truth that brought them to Judaism is usually fascinating. What would cause a gentile to join the Jewish people, risk confronting the brunt of anti-Semitism, while at the same time being uncertain that Jews will accept him? Sincere converts are drawn by the truth of Torah and a desire to be part of the Chosen People. They know that they can follow the Will of Hashem by doing seven mitzvos, but they insist on choosing an all-encompassing Torah lifestyle.

One sincere young woman, of Oriental background, stood firmly before the beis din. “Why would you want this?” questioned the rav.

“Because it is truth and gives my life meaning.”

“There are many rules to follow,” he cautioned.

“I know. I have been following them meticulously for two years,” was the immediate reply. “I identify with the Jews.”

After further questioning, the beis din authorized her geirus, offering her two dates convenient for them. She chose the earlier one, so that she would be able to keep an extra Shabbos.

We should learn from the geir to observe our mitzvos every day with tremendous excitement – just as if we had received them for the first time!

In Parshas Naso, the Torah requires the banishing of a metzora from the camp. Chazal understand this to mean that he is not permitted to be within any city that was walled from the time of Yehoshua (Keilim 1:7).

Question #1: Red

“I was told that some nega’im are red or pink. What color are they really, since pink is about the color of our usual Caucasian skin?”

Question #2: White

“I saw someone who had a discoloration on his arm that was white as snow. Is it possible that he could be a metzora, even though we do not yet have the Beis Hamikdash?”

Question #3: Green or Blue?

“Does the word yarok mean green, yellow or blue?”

Introduction:

Contrary to many Biblical translations, tzaraas is not leprosy. The symptoms described by the Torah do not fit Hansen’s disease, which is another term for the condition more commonly called leprosy (see Rav Hirsch’s Commentary, Vayikra 13:59). Tzaraas is a miraculous occurrence that strikes members of the Jewish people as a punishment, but more so, as a Divine admonition to improve our behavior. The root of the word nega means to be “touched” – in this instance, to be touched by Hashem and reminded of the need to improve and do teshuvah. It occurred when the Jewish people in Eretz Yisroel were on a high spiritual level. That it does not occur today is because we are not on the spiritual level to receive these kinds of direct messages from Hashem (Sefer Hachinuch, Mitzvah 169), just as we no longer experience prophecy or obvious miracles for the same reason. (However, see Tiferes Yisrael, Mar’ei Kohein introduction to Nega’im, #39). This may very well be the reason why only someone Jewish is susceptible to tzaraas, and cloth or houses are susceptible to tzaraas only when owned by someone Jewish.

All instances of tzaraas require that a kohein declare them tamei, and to become tahor afterwards also requires the declaration of a kohein. In other words, the symptoms do not make the person, cloth or house tamei — it is the declaration of the kohein that does.

Tzaraas blemishes must be a minimum size to be tamei, but I will not be focusing on these requirements, nor on others, such as that the entire blemish must be visible, the details of what lighting is used to view a nega, and how and when these nega’im are metamei everything in the same room as they are.

We should also note that there is no difference between a man and a woman regarding the laws of tzaraas: both can become tamei any time after they are born. For simplicity’s sake, I will refer to the person with nega symptoms in the masculine.

Difference between musgar and muchlat

To begin with, we need an overview of the basic rules of tzaraas. All types of tzaraas, whether they affect people, cloth or houses, are divided into two general categories: metzora musgar, literally a “closed” metzora, and metzora muchlat, literally, “decided” or “definite” metzora. In the case of a person, a metzora musgar can be tamei for up to two weeks (actually thirteen days, because the seventh day of the first week is also the first day of the second week), after which, if no new symptoms develop, the person immerses himself in a mikveh or spring and becomes completely tahor at the next nightfall. (All immersions germane to tzaraas may be either in a mikveh, which usually consists of rainwater, or in a spring. Throughout the article, I will refer to a mikveh, but in each of these instances, it could also be a spring.) However, someone with nega symptoms that are ruled tahor must remain vigilant that his nega not grow any larger in the future or develop any other tamei symptoms. Should this happen, he will become tamei as a metzora muchlat, which means that he could remain tamei forever, if his tamei symptoms do not go away.

It is a lo saaseh of the Torah for someone to remove the symptoms of a nega, even when he has already been ruled tahor (Tosefta, Nega’im 3:1; Rambam, Hilchos Tumas Tzaraas 10:1). The Torah forbids this in parshas Ki Seitzei, where it says Hishameir benega hatzaraas, “Be careful concerning a tzaraas affliction” (Devorim 24:8).

This lo saaseh is a bit unusual since it is not worded in the more common way of a lo saaseh with the words lo or al but, rather, with the word hishameir. The Gemara teaches that a lo saaseh can also be worded either with the word hishameir or the word pen, which means “lest” (Shabbos 132b; Eiruvin 96a; Makkos 13b).

In all instances of tzaraas, the tumah generated by a metzora musgar is the same as that of a metzora muchlat. Therefore, one could  describe  a musgar as someone who is temporarily tamei, and a muchlat as someone who remains tamei until the symptoms that made him tamei disappear. The procedure for becoming tahor after being muchlat are those described in the beginning of parshas Metzora and are far more expensive, more complicated and take longer to perform than for someone becoming tahor after being musgar.

Tzaraas on a person

At this point, we need to explain the basic categories of tzaraas. There are three types of tzaraas that can affect a person:

(1) Tzaraas on healthy skin

(2) Tzaraas on injured skin

(3) Tzaraas on the scalp or beard

In the case of tzaraas on healthy skin, a nega appears, meaning that someone finds on his skin a blemish that is of a color that is very white, at least as bright as the membrane of an egg. The Mishnah (Nega’im 1:1) explains that there are four shades of white that can make someone tamei as a metzora. In order of increasing intensity, they are:

–          White as the membrane of an egg

–          White as a whitewashed wall

–          White as the cleaned, bleached wool of a newborn lamb (Shavuos 6b)

–          White as fresh clean snow

By the way, there is an unusual shade of white, called bohak by the Torah, that is not a symptom of tumah. Simply explained, although it is a bright white, a blemish this shade is completely tahor, since it is duller than the color of the membrane of an egg, and certainly than the other nega’im colors (Vayikra 13:39).

Pinks

In a few places, the Torah refers to nega’im that are reddish in color (13:19, 24, 43). The halacha is that all nega’im on people that are temei’im if they are white are also te’mei’im if they are reddish or pinkish, and that there are four shades of red, or more accurately, pink, that are tamei, just as there are four shades of white, as I mentioned above. However, the commentaries dispute exactly which four shades are temei’im, with a wide difference of opinion among them, ranging from a very light pink, to shades that are much redder (Ravad to Sifra 13:19; Kesef Mishneh, Hilchos Tumas Tzaraas 1:4; Eliyahu Rabbah and Tiferes Yisroel, Nega’im 1:2; Aruch Hashulchan He’asid 80:6-7) .

To the kohein

Contrary to popular opinion, there is no requirement that there be a Beis Hamikdash for someone to become tamei with tzaraas. In point of fact, should a kohein be knowledgeable about the laws of tzaraas and declare someone with a proper nega shade to be tamei, the person would become tamei (She’eilas Yavetz #136). However, this last scenario would be highly unlikely, since ruling someone tamei for tzaraas requires that an individual have extensive training in all the details of the laws of tzaraas, including personal experience in identifying the differences among the four white shades mentioned above (Rambam, Hilchos Tumas Tzaraas 1:3).

Musgar

Any of the types of tzaraas, whether on a person, garment, or house, must be shown to a kohein, who rules on the status of the nega (Nega’im 3:1). If he rules that the color is tahor, the person is tahor, and no further steps are necessary. If the kohein rules that the nega is musgar, then in the case of a person, he is fully tamei for seven days, counting the day that the kohein ruled on it as the first day. Anything he touches becomes tamei, and, in addition, if he enters a room or building during this week, everything in the room capable of becoming tamei will become tamei. It will require being immersed in a mikveh and will become tahor the nightfall following.

On the seventh day, the metzora must go to the same kohein for him to rule on the nega again (Tosefta, Nega’im 1:12; Rambam, Hilchos Tumas Tzaraas 9:4; 11:6). If the kohein rules that the nega is muchlat, the metzora must go outside of the city (if it is a walled city) and live by himself until the symptoms that created the ruling that it is muchlat disappear.

A person can be tamei musgar for a total of two weeks, which is actually thirteen days, as I explained above. On the thirteenth day, the metzora shows the nega to the kohein. If no symptoms have appeared to make the nega tamei, the person becomes tahor, notwithstanding that he still has the nega symptoms (see below). He immerses in a mikveh and becomes completely tahor the nightfall after his immersion.

Muchlat

What makes a metzora muchlat?

There are three symptoms that can make a metzora muchlat:

(1) His tzaraas spreads.

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

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

Obviously, the first time the kohein sees the nega, he can rule muchlat only because of either the second or third symptom; ruling a nega muchlat because it spread can be only for a person who has been seen previously by the kohein.

Injuries, scalps and beards

I mentioned above that there are two other types of nega’im that can affect a person, tzaraas on injured skin and tzaraas on the scalp or beard. Each of these categories has two subcategories.

Injured skin

The Torah mentions two types of nega’im on injured skin, one in which the injury was the result of a blow and the other in which it was the result of a burn or other heat. There is no difference in halacha between these two types of nega’im. Whether someone finds a nega on an injury received through a burn or on an injury received as a result of a blow, both have almost the same rules as regular nega’im on healthy skin, with two exceptions, both of them leniencies.

(1) A nega musgar on injured skin is tamei for only one week. If, on the seventh day, the nega has not changed, the kohein rules the nega to be tahor. The metzora then immerses himself in a mikveh and becomes tahor at the next nightfall.

(2) The second lenience is that healthy skin inside the nega is not a muchlat sign. In other words, a nega on injured skin that has healthy skin inside will either be musgar or tahor, depending on the size and shape of the nega.

Scalp and beard

There are three types of nega’im that can affect the scalp or beard areas. In two of these situations — karachas, baldness on the back of the head, and gabachas, baldness on the front and top of the head — the halacha is that once someone’s hair falls out to the extent that part of the scalp is completely bald, it is treated the same as other areas of the body germane to nega’im. In other words, when someone becomes bald, that area that once had hair and now does not has the same halacha for nega’im purposes as other parts of the body. There is one exception, again a leniency. In this instance, white hairs inside the nega are not symptoms of tumah.

The other type of nega on the scalp or beard areas is called nesek, which is described at length both in the Torah and the Mishnah. Unfortunately, nowhere in Tanach or Chazal is it clarified how this is halachically different from bald areas. As a result, the rishonim dispute exactly what is the difference (see Rambam, Hilchos Tumas Tzaraas 5:8-11, 8:1; Rash, Nega’im 10:10; Ramban, Vayikra 13:30). Since the halachic conclusion is unclear, I will not discuss this issue.

Nega’im on clothing and houses

In addition to tzaraas on a person, there can be tzaraas on cloth, thread, or leather, and also on houses. In this instance, the indication of tzaraas is not a white discoloration, but adamdom, which is deep red, or yerakrak (Vayikra 13:49; 14:37). The color yarok in Tanach and Chazal can mean blue, green, gold or yellow (Tosafos, Chullin 47b s.v. Ela; Sukkah 31b s.v. Hayarok; Niddah 19b s.v. Hayarok). In a Tosefta (Nega’im 1:3), we find a dispute between tana’im what color is yerakrak that renders a garment tamei:

According to Rabbi Elazar, it is a yellow shade — the color of wax, egg yolk, or a variety of yellow gourd (dependent on varying texts to the Tosefta). According to Sumchus, it is the color of the wing of a peacock or the leaf of a palm tree, both shades of deep green. The color is the indication that the nega is musgar. Nega’im on cloth and houses can never become muchlat the first time they are seen by a kohein.

Yarok

How can so many different shades of color — blue, green, gold or yellow – all be called by the same word yarok? One answer is that the Torah’s descriptions refer to the various shades of the refracted light spectrum that is visible to humans, which range from violet to red (see Rav Hirsch, Collected Writings, Volume III, page 127). Yarok would refer to the middle of the spectrum, “techeiles” to the violet and blue-violet part, which are the shorter waves of light, and adom to the red, or longer waves. (According to this approach, the gold color here probably means a yellowish gold, rather than reddish.)

Differences between cloth and people

Aside from the differences in the color of the nega, there are several other distinctions between the laws of nega’im germane to garments and those germane to people.

In all types of nega’im, a nega that appears without any muchlat signs is musgar for the first week, and then examined by the kohein on the seventh day. A nega on cloth that appears the same after a week has passed is removed from the cloth, and the area of the cloth that became torn when the nega was excised is sewn closed. A similar halacha is true in the case of a nega on a house – the nega area and the stones on which it appears are removed to a tamei place, the area is replaced with stone and mortar and becomes musgar for a second week.

This halacha is the exact opposite from a nega on a person, in which case it is prohibited min haTorah to excise the nega, and the person continues in the state of musgar for another six days.

A person whose nega remains the same for two weeks becomes tahor. However, a garment whose nega remains the same for two weeks has the status of tamei muchlat. Another critical difference is what is done to the person or item that becomes muchlat. As explained before, a person who becomes muchlat remains tamei until the symptoms of his nega change. A garment that becomes muchlat is burnt.

There are other halachos that apply to a nega on cloth that do not apply to nega’im on people. A person whose nega is musgar is not banished from the city – this halacha is reserved for a person whose nega is muchlat. However, cloth that is tamei tzaraas must be removed from the city – even when it is only musgar. A related strict ruling that applies to a cloth nega (and does not apply to nega’im on people) is that a cloth that has tzaraas must be removed from any city – whether or not the city is walled, whereas a person who is muchlat is banished from a walled city (Keilim 1:7), but is not required to leave an unwalled city (Tosefta Nega’im, 7:14; Rambam, Hilchos Tumas Tzaraas 13:15).

Nega’im on houses

In addition to the laws of tzaraas on people and on cloth, the Torah presents the laws of nega’im on the inside of a house. Tzaraas applies only to a house built from wood, clay and earth (Nega’im 12:2) and only to a house in Eretz Yisroel. The color of the nega is, as the law of nega’im on cloth, adamdom, bright red, or yerakrak, as explained above.

There are several unique features about the laws of nega’im on houses. One is obvious: whereas the person with a nega or the owner of cloth with a nega goes to the kohein to show him the nega, in the case of a nega on a house, the kohein comes to the house to see the nega. Whereas other nega’im are always ruled on outdoors, in sunlight, nega’im on a house are ruled as the light can be seen through the windows and open doors of the house.

A nega on a house can have the status of musgar for up to three weeks, something not possible with any other nega (Nega’im 3:8, see also 13:1).

According to many authorities, nega’im on houses can render tamei even items inside the house that can never otherwise become tamei (Rambam, Hilchos Tumas Tzaraas 14:4; Rashi and Tosafos, Mo’eid Katan 8a s.v. Deha; Eliyahu Rabbah, Mishnah Acharonah and Tiferes Yisroel, Nega’im 12:5 in explanation of Rabbi Yehudah; however, cf. Bartenura who disagrees).

Conclusion

The Gemara mentions tzaraas as a punishment for many types of prohibited behavior, which all share a common thread that they are antisocial activities. In other words, they all violate both mitzvos bein adam lamakom and bein adam lachaveiro. To quote the Rambam, “Tzaraas is a generic term comprising many things that are not comparable to one another… These changes that the Torah collectively calls tzaraas are not within what normally happens in the world. They are miraculous things that happen to the Jews to warn them away from loshon hora. Someone who speaks loshon hora — the walls of his house change color. If he changes his actions, the house becomes tahor. If he persists in his evil actions, his house will be destroyed, and then the leather items in his house that he sits and lies upon change color. If he changes his actions, they become tahor. If he persists in his evil actions until they are burnt, then the clothes that he wears change color. If he changes his actions, they become tahor. If he persists in his evil actions, until they are burnt, then his skin changes color, and he himself becomes a metzora. Therefore, someone who wants to develop himself spiritually should distance himself from these types of people, not to be influenced by their foolishness” (Hilchos Tumas Tzaraas 16:10).

Unfortunately, we no longer have these Divine reminders to keep us on the straight and narrow. Instead, we must try to inspire ourselves to grow in these areas.

Since Yom Tov begins on Friday, a rare occurrence, we must prepare an eruv tavshilin, whether we live in Eretz Yisrael or in Chutz La’Aretz.

Question #1: Where?

“Is it true that eruv tavshilin is more common in chutz la’aretz than in Eretz Yisroel?”

Question #2: What?

“In what way is the halacha of eruv tavshilin different on Shavuos and Shevi’i shel Pesach from other Yomim Tovim?”

Question #3: Why?

“What is the reason that many people use a hard-boiled egg for eruv tavshilin?”

Foreword

With Shavuos beginning on Thursday evening, the laws of eruv tavshilin are germane both to those living in Eretz Yisroel and to those living in chutz la’aretz. In order to reply accurately to the above inquiries, we must first examine several aspects of this mitzvah that Chazal implemented – particularly, the whys, hows, and whats of eruv tavshilin. Because of space considerations, this article will not be able to address all the issues of eruv tavshilin, but will answer the opening questions that were posed. However, there are other articles on the topic, as well as on the laws of Yom Tov, that may be read on RabbiKaganoff.com.

First, the basics: When Yom Tov falls on Friday, an eruv tavshilin must be made on erev Yom Tov to permit cooking and other preparations on Yom Tov for Shabbos. As it turns out, making an eruv tavshilin is much more common in chutz la’aretz than it is in Eretz Yisroel. Since, in our calendar devised by Hillel Hanasi, the beginning of Sukkos, Pesach and Shmini Atzeres never falls on Friday, the only time there is a need for an eruv tavshilin in Eretz Yisroel is when Shavuos or the seventh day of Pesach falls on Friday, or when Rosh Hashanah falls on Thursday. On the other hand, in chutz la’aretz, in additional to these instances, often the two days of Yom Tov fall on Thursday and Friday.

Introduction

When discussing the laws of Yom Tov, the Torah teaches kol melacha lo yei’aseh bahem, ach asher yei’acheil lechol nefesh hu levado yei’aseh lachem,“No work should be performed on these days; however, that which is eaten by everyone (kol nefesh), only that may be prepared for yourselves” (Shemos 12:16). We see from the posuk that, although most melachos are forbidden on Yom Tov, cooking and most other food preparations are permitted. However, cooking is permitted on Yom Tov only when it is for consumption on that day. It is forbidden to cook on Yom Tov for the day after, and at times this is prohibited min haTorah. There is, however, one exception – when Yom Tov falls on Friday and an eruv tavshilin is made, it is permitted to cook on Yom Tov for Shabbos.

To quote the Mishnah (Beitzah 15b), “When Yom Tov falls on erev Shabbos, it is prohibited to begin cooking on Yom Tov for Shabbos. However, it is permitted to cook for Yom Tov, and, if there are leftovers, plan them to be for Shabbos. Furthermore (there is a way in which it is permitted to cook on Yom Tov for Shabbos), by preparing a cooked food from before Yom Tov which he leaves for Shabbos. According to Beis Shamai, this must be two cooked items, and, according to Beis Hillel, one cooked item suffices.” (As we are aware, we also set aside a baked item for the eruv tavshilin, but this is not essential.)

Prior to quoting the dispute between Beis Shamai and Beis Hillel, the Mishnah has expressed three distinct concepts:

No cooking on Yom Tov for Shabbos

1. It is prohibited to cook on Yom Tov for Shabbos (without making the eruv tavshilin).

Plan-overs

2. It is permitted to cook for Yom Tov, planning to have leftovers for Shabbos.

Eruv tavshilin

3. Making an eruv tavshilin permits cooking on Yom Tov for Shabbos.

Each of these concepts requires clarification:

1. No cooking on Yom Tov for Shabbos

It is prohibited to cook on Yom Tov for Shabbos.

Let me explain a question that is implicit here. If it is prohibited to cook on Yom Tov for Shabbos, why does an eruv tavshilin permit it? Or, in other terms, there are three types of eruv that Chazal instituted, eruv techumim, eruv chatzeiros and eruv tavshilin. All three of these mitzvos have the status of a takanas chachamim, which means that they were instituted by Chazal to permit something that is otherwise prohibited because of a rabbinic injunction. An eruv techumim permits walking on Shabbos and Yom Tov beyond the techum Shabbos, the distance outside the city or other “Shabbos residence;” an eruv chatzeiros permits carrying on Shabbos from one individual’s jurisdiction to that of another. Both of these prohibitions permitted by their respective eruvin are rabbinic injunctions. An eruv, which is a rabbinic introduction, cannot permit something that is prohibited min haTorah, as the Gemara asks, “Can an eruv tavshilin permit a Torah prohibition” (Pesachim 45b)?

If cooking on Yom Tov for Shabbos is permitted min haTorah, and it is prohibited only because of a rabbinic injunction, we can understand how Chazal could create a rabbinic innovation called eruv tavshilin and thereby permit this cooking. To paraphrase this expression of the Gemara, since Chazal created the prohibition, they can also reverse it (ibid.). However, if cooking on Yom Tov for Shabbos is prohibited min haTorah, how do Chazal have the authority to permit that which the Torah forbade?

Two differing approaches

How we answer this conundrum is dependent on a debate between two amora’im, Rabbah and Rav Chisda (Pesachim 46b), which has major ramifications specifically for this coming Yom Tov, when Shavuos falls on Friday.

Rav Chisda contends that, min haTorah, it is always permitted to cook on a Friday Yom Tov for Shabbos. This is called tzorchei Shabbos na’asin beYom Tov, literally, “Shabbos needs may be performed on Yom Tov.” Since Shabbos and Yom Tov both have kedusha, and are both sometimes called “Shabbos” by the Torah, cooking on Yom Tov for Shabbos is permitted min haTorah, just as cooking on Yom Tov is permitted for the same day (Rashi ad loc.). The prohibition not to cook on Yom Tov for Shabbos is a rabbinic injunction; Chazal prohibited this in order to make sure that people do not cook on Yom Tov for a weekday, or on the first day of Yom Tov for the second, both of which might be prohibited min haTorah. Making an eruv tavshilin permits cooking on Yom Tov for Shabbos, since a person thereby realizes that, without an eruv tavshilin, he cannot cook on Yom Tov even for Shabbos — therefore, he understands that he certainly cannot cook on Yom Tov for any other day.

The other position — ho’il

Rabbah contends that it is often prohibited min haTorah to cook on Yom Tov for Shabbos. In other words, he maintains that tzorchei Shabbos einam na’asin beYom Tov – notwithstanding that Yom Tov is sometimes called Shabbos, it is still prohibited min haTorah to cook on Yom Tov for any other day, including Shabbos!

If that is true, how can an eruv tavshilin, which is a rabbinic solution, permit that which is prohibited min haTorah?

The answer is a halachic concept called ho’il, which permits cooking on Yom Tov min haTorah whenever you might have a need for extra cooked food on Yom Tov itself, even when you are not expecting to need the extra food and it is unlikely that such a situation will arise. For example, after finishing the Yom Tov day seudah, min haTorah it is permitted to cook another meal, provided it will be ready to eat before the Yom Tov day is over. This is because unexpected guests may arrive at your door, and you now have a meal ready to serve them. The idea that perhaps something will happen is expressed as the word ho’il; this word is now used as a brief way of referring to a complicated legal concept.

Therefore, whenever it is possible that guests may yet arrive on Yom Tov, it is permitted to cook for them min haTorah. Although miderabbanan it is not permitted to rely on ho’il to cook on Yom Tov for Shabbos, since this is only a rabbinic injunction, eruv tavshilin can permit the cooking.

However, this heter applies only as long as the meal will be ready to be eaten while it is still Yom Tov. There is no heter to begin cooking a meal on Yom Tov that will not be ready until Yom Tov is over g . In other words, according to Rabbah, when ho’il does not apply, it is prohibited min haTorah to cook. Under these circumstances, an eruv tavshilin will not permit someone to cook on Yom Tov for Shabbos.

Thus, there is a halachic difference between Rabbah and Rav Chisda that affects us! According to Rabbah, it is not permitted to put a cholent on the fire on Friday that will not be ready to eat until sometime on Shabbos. Usually, it is perfectly fine to cook food on Friday that will be left on a properly covered fire when Shabbos starts and not ready to eat until the Friday night seudah. However, this Yom Tov it is not permitted to do this, according to Rabbah. Since this food will not be ready to eat on Yom Tov, the law of ho’il does not apply. Since the rule of ho’il does not apply, there is no heter to cook the cholent on Yom Tov for Shabbos, even if one makes an eruv tavshilin! Thus, the menu for Shabbos may have to depend on what one is planning to cook, or, more accurately, on whether it will be cooked in a way that it can be eaten on Yom Tov.

How do we rule?

The Mishnah Berurah, in Biur Halacha (527:1), notes that it is unclear whether we rule according to Rabbah or according to Rav Chisda. He concludes, therefore, that it is preferred to be machmir and have the food cooked for Shabbos in a way that ho’il applies, particularly when we are dealing with a potential question of a Torah law, such as when the first day of Yom Tov falls on Friday, as it does on Shavuos. This means that all food cooked for Shabbos should be edible before Shabbos arrives. The Biur Halacha rules that, under extenuating circumstances, it is permitted to rely on the rishonim who rule according to Rav Chisda’s opinion, but it is preferable lechatchilah to have the food for Shabbos cooked in a way that it will be already edible on Friday.

When the the first day of Yom Tov falls on Thursday, and, therefore, Friday Yom Tov is miderabbanan, there is more latitude to be lenient.

At this point, we can answer the second of our opening questions: “In what way is the halacha of eruv tavshilin different on Shavuos and Shevi’i shel Pesach from other Yomim Tovim?”

In the calendar we currently use, the first day of Shavuos and Shevi’i shel Pesach never fall on Thursday, although they both often fall on Friday. When this happens, Friday is Yom Tov min haTorah, and it is important to plan the menu such that the meals cooked on Friday for Shabbos will be ready to eat when there is still time to eat them on Yom Tov.

Plan-overs

At this point, we will examine the second point that we derived from the Mishnah, which stated, “It is permitted to cook for Yom Tov, and, if there are leftovers, plan them to be for Shabbos.” In other words, even without having made an eruv tavshilin, there is a way to cook more than you need on Yom Tov in order to have plenty of leftovers, or, shall we call them, “plan-overs.” One may cook amply for the Yom Tov meal, knowing that there will certainly be leftovers that can be served on Shabbos. As a matter of fact, if one follows the halacha correctly here, it is even permitted to cook on the first day of Yom Tov planning to have enough leftover to serve on the second day, or even on a weekday. This is provided that each dish is, or could be, served at a Yom Tov meal on the day that it was prepared.

This plan-over preparation is called marbeh beshiurim, literally, “increasing the quantities,”which means that, while preparing food on Yom Tov, it is permitted to include a greater quantity while cooking, provided no additional melacha act is performed. For example, if you need to heat a small amount of water for a cup of tea, you may place a large pot of water on the fire, since only one act of heating water — placing a pot on the fire — is being performed.

However, it is prohibited if an additional melacha action is performed. For example, if the pot is already on the fire, you may not add extra water to it, since this involves a new melacha action.

Adding more

Here are other examples. You are making a cholent or cooking soup — you may add greater quantities of meat, beans or other ingredients than you will need for your Yom Tov meal into the pot before it is placed on the stove, because you place the entire pot onto the fire at one time, or turn up the fire only once, regardless as to how much is thereby being cooked.You may fill a pot with meat on the first day of Yom Tov, even though you need only one piece for the first day.

However, it is prohibited to prepare individual units of a food item, knowing that you are preparing more than can possibly be eaten on Yom Tov. For this reason, you may not fry more schnitzel or similar items than you will possibly need for a Yom Tov meal, since these involve separate melacha actions. Similarly, it is forbidden to bake more than what you will possibly need for the day (Beitzah 17a). Adding water or meat before putting the pot on the fire simply increases the quantity cooked, but does not increase the number of melacha acts, whereas shaping each loaf or roll is done separately, thus increasing the number of acts performed.

Why is this permitted?

Why is it permitted to cook extra on Yom Tov by use of marbeh beshiurim? We would think that cooking extra on Yom Tov is forbidden, just as in a situation of pikuach nefesh, where it is forbidden to cook more than what is necessary for the needs of the ill person. Why, then, is it permitted to cook extra on Yom Tov, as long as no extra melacha actions are performed?

The Ran (Beitzah 9b in Rif pages, s.v. Umiha) explains that there is a qualitative difference between the performance of melacha actions on Shabbos (or Yom Tov) to save someone’s life, and cooking on Yom Tov. Although saving lives is a huge mitzvah and supersedes Shabbos, the act performed is still an act of melacha. On the other hand, prohibited activities on Yom Tov are defined as melachos that are not food preparatory. Preparing food on Yom Tov involves no melacha activity whatsoever, and is as permitted on Yom Tov as it is to set the table on Shabbos. Since no melacha activity is performed, there is nothing wrong with adding more to cook while the Yom Tov meal is prepared, provided that no additional melacha action is done.

Hard-boiled eruv?

At this point, let us examine the third of our opening questions: “Why do many people use a hard-boiled egg for eruv tavshilin?”

It is permitted to continue cooking on Yom Tov for Shabbos only as long as the eruv tavshilin, or at least a kezayis of the cooked part of the eruv tavshilin, still exists. In the days before refrigeration, someone who prepared meat or a different food on Wednesday or Thursday for eating on Shabbos was faced with a practical problem. Once you cook food, it begins to spoil very quickly, if it is not refrigerated. Therefore, notes the Aruch Hashulchan, it was not uncommon that the eruv tavshilin was no longer edible when people were cooking on Wednesday for Shabbos, and an inedible eruv tavshilin no longer permits you to cook on Yom Tov for Shabbos.

Using a hard-boiled egg for the eruv tavshilin resolved this problem, since an egg cooked before Yom Tov and kept without refrigeration will still be edible on Shabbos.

However, in today’s world, when you can place the cooked part of your eruv tavshilin in the refrigerator and it will last until Shabbos, it is preferred to use as eruv tavshilin a cooked delicacy that you intend to serve at the Shabbos meal. For this reason, I for the eruv tavshilin the gefilte fish that will be served on Shabbos.

Conclusion

The Torah refers to the Yomim Tovim as mo’ed. Just as the word ohel mo’ed refers to the tent in the desert which served as a meeting place between Hashemand the Jewish people, so, too, a mo’ed is a meeting time between Hashemand the Jewish people (Hirsch, Vayikra 23:3 and Horeb). Unlike Shabbos,when we refrain from all melacha activity, on Yom Tov the Torah permits melacha activity that enhances the celebration of the Yom Tov as a mo’ed. Permitting us to cook delicious, fresh meals allows an even greater celebration of this unique meeting time with Hashem.

Question #1: Pie r Squared

Yanki is supposed to be watching his weight and therefore needs to figure out how many calories are in the pie he beholds. To figure out how big the pie is, he measures the diameter of the pie, and divides in it half to get the length of its radius. He then multiplies the length of the radius by itself to get “r squared,” and multiplies the result by three so that he knows the area of the pie’s surface. Is there anything wrong with his calculation?

Question #2: Puzzled by the Pasuk

“How can the pesukim tell us that the relationship between the circumference of a circle and its diameter is three to one, when simply taking a string and measuring around a circle demonstrates that the circumference is noticeably longer than three times the diameter?”

Question #3: Performing Mitzvos Accurately

“How accurate a calculation must I make when determining the size of an item to be used for a mitzvah?”

Introduction

In numerous places, both Tanach and Chazal approximate certain mathematical values, such as evaluating the ratio of the circumference of a circle to its diameter as three to one. The problem is that we can demonstrate mathematically that the ratio is greater than three and is almost 3 1/7. This leads to the following questions:

(1) Why would Chazal calculate using inaccurate approximations?

(2) When making halachic calculations, may we rely on these estimates, or do we need to be mathematically more accurate?

(3) A corollary question is: When providing an estimate, one must allow for a margin of error. Does halachah require a margin of error, and, if so, how much?

The Slide Rule versus the Calculator

Let me begin our discussion with a modern analogy, if something I remember can still be considered “modern.” When I first studied sophisticated mathematical estimates, I learned to use a slide rule, which today is as valuable to an engineer as his abacus. Relative to the calculator, a slide rule does not provide accurate measurements, and someone using a slide rule must allow for a fairly significant margin of error.

Today, complex computations are made with calculators, which provide far more accurate results that can be rounded off, as necessary, to the nearest tenth, millionth, quadrillionth or smaller. Of course, using a calculator still requires one to round upward or downward, but because it is much more precise, the margin of error is greatly reduced.

How Irrational Are You?

Numerous halachic questions require mathematical calculations that involve what we call “irrational numbers.” An irrational number means one that cannot be expressed in fractional notation. Another way of explaining an irrational number is that its value can never be calculated totally accurately, but can only be estimated. The two most common examples of irrational numbers that show up in Chazal are:

Pi

(1) The ratio of the circumference of a circle to its diameter, which we are used to calling by the Greek letter ∏ (pronounced like the word “pie,” and spelled in English “pi”). Since the 19^th century, the letter pi has been used to represent this number, because the Greek word for periphery is peripherion, which begins with the letter ∏. Hundreds of years earlier, the Rambam (Commentary to the Mishnah, Eruvin 1:5) noted that the ratio of the circumference of a circle to its diameter is an irrational number that can only be approximated, and that the scientists of his era used an estimate of 3 and 1/7, which is actually slightly greater than the value of ∏. The Rambam explains that since there is no accurate ratio, Chazal used a round number, three, for this calculation.

The Diagonal of a Square

(2) The length of a diagonal of a square, which is equal to the side of the square multiplied by the square root of two (√2). Chazal calculated the length of a diagonal of a square to be 1 and 2/5 times its side, which is slightly smaller than the value of the √2. (Another way of expressing this idea is that the ratio between the diagonal and the side is 7:5.) The fact that Chazal’s figuring is somewhat smaller than the mathematical reality is already proved by Tosafos (to Sukkah 8a s.v. kol).

Since both pi and the square root of two are irrational numbers, they can only be estimated but can never be calculated with absolute accuracy.

Based on the above-quoted statement of the Rambam, we can already address one of our earlier questions: “Why would Chazal have used inaccurate evaluations for calculation?” The answer is that any computation of the correlation of the circumference of a circle to its diameter will be an estimate. The only question is how accurate must this estimate be for the purpose at hand.

Chazal or Tanach?

Although the Rambam attributes the rounding of pi to Chazal, in actuality, there are sources in Tanach that calculate the ratio of the circumference of a circle to its diameter as three-to-one. Both in Melachim (I 7:23) and again in Divrei Hayamim (II 4:2), Tanach teaches that the Yam shel Shelomoh, the large, round pool or mikveh that was built in the first Beis Hamikdash, was thirty amos in circumference and ten amos in diameter, which provides a ratio of circumference to diameter of three-to-one. Thus, we can ask a question of the Rambam: Why does he attribute this ratio to Chazal, rather than the source for Chazal’s calculation, the pesukim?

The commentaries there, however, already ask how the verse can make a calculation that we know is not accurate. The Ralbag suggests two options: either that the numbers used are intended to be a very broad estimate, or, alternatively, that the diameter is measured from the external dimensions of the mikveh, whereas the circumference is measured from its inside, which makes the estimate closer to mathematical reality. According to the second approach, we have no Biblical source that uses an estimate of three-to-one as a substitute for pi.

This will explain why the Rambam attributed the estimation of pi as three to Chazal, rather than to the Tanach. The Rambam was fully aware that one could interpret the verses according to the second approach of the Ralbag, in which case, there is no proof from the verse. He, therefore, attributed this estimate to Chazal.

Gemara Eruvin

However, the Ralbag’s approach seems to conflict with a passage of Gemara. The Mishnah in Eruvin states that if the circumference of a pole is three tefachim, its diameter is one tefach, which means that the Mishnah assumes a ratio of three-to-one.

The Gemara questions how the Mishnah knows that the ratio is three-to-one, and then draws proof from the above-quoted verse that the Yam shel Shelomoh was thirty amos around and ten amos across. The Gemara then debates whether the calculations of the Yam shel Shelomoh indeed result in a ratio of three-to-one, because one must also include the thickness of the poolitself, which offsets the computation. The Gemara eventually concludes that the verse was calculating from the inside of the pool, not its outside, and therefore the thickness of the pool’s containing wall is not included in the calculation (Eruvin 14a).

However, this Gemara’s discussion leaves the mathematician dissatisfied, a question already noted by Tosafos. If the internal diameter of the Yam shel Shelomoh was ten amos, its circumference must have been greater than thirty amos, and if its circumference was thirty amos, then its internal diameter must have been less than ten amos.

A Different Question

The Rosh, in his responsa, is bothered by a different question, based on Talmudic logic rather than on mathematical calculation. He finds the Gemara’s question — requesting proof for the ratio between a circle’s circumference and its diameter — to be odd. The ratio between a circle’s circumference and its diameter is a value that one should calculate. By its nature, this is not a question that requires a Biblical proof or source.

In the literature that we have received from the Rosh, he asks this question in two different places. In his responsa (Shu”t Harosh 2:19), we find a letter that he wrote to the Rashba, in which he asked a series of questions that the Rosh notes bother him tremendously and to whom he has no one else to turn for an answer. One of the questions the Rosh asks is: “Why does the Gemara ask for a Biblical source for a mathematical calculation?”

It is curious to note that a later commentary mentions that, in all the considerable literature that we have received from the Rashba, we have no recorded answer of the Rashba to this question of the Rosh (Cheishek Shelomoh to Eruvin 14a).

Another Rosh

As I mentioned above, there is another place where the Rosh asks why the Gemara wanted a Biblical source for a mathematical calculation, but in this second place the Rosh provides an answer to the question. In his Tosafos Harosh commentary on Eruvin, which was published for the first time fairly recently, the Rosh provides the following answer: Since the calculation of three-to-one is not accurate, the Gemara wanted a biblical source as proof that we are permitted to rely on this estimate.

(It is curious to note that the Cheishek Shelomoh whom I quoted above provided the same answer to this question as did the Rosh in his Tosafos. The Cheishek Shelomoh never saw the Tosafos Harosh, which had not yet been printed in his day.)

Curiousity about the Tosafos Harosh

There is an interesting historical point that can presumably be derived from this statement of the Rosh. As I mentioned, in the Tosafos Harosh, the Rosh does answer the question that he raised, and accredits this answer to himself. This should be able to prove which work the Rosh had written earlier, and also whether he ever received an answer to his question from the Rashba. This analysis is based on the following question: Why did the Rosh cite an answer in his Tosafos¸but not in his responsum, which was addressed as a question to the Rashba. There are three obvious possibilities:

(1) Although the Rosh wrote this answer in his Tosafos, he was dissatisfied with it, and therefore wrote a question to the Rashba. I would reject this possibility because, if it is true, then, in his correspondence to the Rashba, the Rosh would have mentioned this answer and his reason for rejecting it.

(2) The Rosh indeed received an answer, either this one or a different answer, from the Rashba. I reject this approach also, because, were it true, the Rosh would have quoted the Rashba’s answer in his Tosafos and, if need be, discussed it.

(3) Therefore, I conclude that the Rosh, indeed, never received an answer to the question he asked of the Rashba and subsequently reached his own conclusion as to how to answer the question, which he then recorded in the Tosafos Harosh. This would lead us to conclude that the Tosafos Harosh were written later in his life than his responsa, or, at least, than this responsum.

Mathematical Accuracy

At this point, we can address one of earlier questions. “When making halachic calculations, may we rely on these estimates, or do we need to be mathematically more accurate?” We might be able to prove this point by noting something in the Mishnah in Eruvin. The Mishnah there ruled that, under certain circumstances, an area that is fully enclosed on three of its sides and has a beam, a tefach wide, above the fourth side, is considered halachically fully enclosed, and one may carry inside it. The Mishnah then proceeds to explain that if the beam is round and has a circumference of three tefachim, one may carry inside the area because, based on the calculation that the relationship of its circumference to its diameter is three-to-one, the beam is considered to be a tefach wide. However, as the Rambam notes, the beam is actually less than a tefach in diameter, and therefore, one should not be permitted to carry in this area!

The Aruch Hashulchan (Orach Chayim 363:22; Yoreh Deah 30:13) notes this problem and concludes that one may carry in this area. He contends that this is exactly what the Gemara was asking when it requested Scriptural proof for a mathematical calculation. “Upon what halachic basis may we be lenient in using this estimate of three-to-one, when this will permit carrying in an area in which the beam is less than a tefach wide? The answer is that this is a halachah that we derive from the verse.”

To clarify this concept, the Chazon Ish notes that the purpose of mitzvos is to draw us nearer to Hashem, to accept His reign, and to be meticulously careful in observing His laws. However, none of this is conflicted when the Torah teaches that we may use certain calculations, even if they are not completely mathematically accurate. In this instance, relying on these estimates is exactly what the Torah requires (Chazon Ish, Orach Chayim 138:4). As expressed by a different author, the Gemara (Eruvin 4a; Sukkah 5b) teaches that the measurements, the shiurim, required to fulfill mitzvos are all halachah leMoshe miSinai, laws that Moshe Rabbeinu received as a mesorah in Har Sinai. Similarly, these estimates of irrational numbers mentioned above are all halachah leMoshe miSinai that one may rely upon to fulfill mitzvos, whether or not they are mathematically accurate. The same Torah takes these calculations into consideration when instructing us which dimensions are required in order to fulfill these specific mitzvos (Shu”t Tashbeitz 1:165).

In the context of a different halachah in the laws of Eruvin, the Mishnah Berurah makes a similar statement, contending that we can rely on Chazal’s estimates, even when the result is lenient. However, the Mishnah Berurah there vacillates a bit in his conclusion, ruling that one can certainly rely on this when the issue is a rabbinic concern (Shaar Hatziyun 372:18). In a responsum, Rav Moshe Feinstein questions why the Mishnah Berurah limits relying on this approach, and Rav Moshe rules unequivocally that the rule permitting one to rely on these estimates holds true even germane to de’oraysa laws and even leniently (Shu”t Igros Moshe, Yoreh Deah Volume3 #120:5).

How Straight Are My Tefillin?

Personally, I find the context of Rav Moshe’s teshuvah very interesting. There is a halachah leMoshe miSinai that requires that the boxes of the tefillin, the batim, must be perfectly square. In a responsum dated 21 Adar II, 5736, Rav Moshe was asked whether there is a halachic preference to use scientific measuring equipment to determine that one’s tefillin are perfectly square. Rav Moshe rules that there is neither a reason nor a hiddur to measure the tefillin squareness this accurately. Since Chazal have used the calculation of 1.4 or a ratio of 7:5, which we know is an estimate, to determine the correct diagonal of a square, there is no requirement to make one’s tefillin squarer than this, and it is perfectly fine simply to measure the length of each of the sides of one’s tefillin and its two diagonals to ascertain that the ratio between the diagonal and the side is 7:5.

In the above-cited responsum, Rav Moshe notes that he had heard that the Brisker Rav, Rav Yitzchak Ze’ev Soloveitchik, had ruled that it was preferable to check one’s tefillin in the most scientific method available. Rav Moshe writes that he finds this suggestion very strange and disputes its being halachically correct (Shu”t Igros Moshe, Yoreh Deah Volume3 #120:5).

Thus, according to these authorities, we have answered our previous question regarding the halachic significance of estimated values: Indeed, the purpose of Chazal‘s making these estimates was that observing halachah does not require that these calculations be mathematically precise, provided they meet the criteria that the halachah established.

An Alternate Approach

Although the majority of late authorities conclude that the calculations of Chazal are indeed part of the halachos of shiurim, this is not a universally held position. The Tashbeitz, a rishon, wrote a lengthy responsum on the topic, in which he presents two ways to explain why Chazal used estimates that are not precisely accurate. His first approach reaches the same conclusion as we have already found in the later poskim, that these measurements are included within the halachos of shiurim that are part of the halachah leMoshe miSinai.

The second approach of the Tashbeitz, however, differs with the above-mentioned halachic conclusion. In his second approach, he contends that all the above estimates were meant for pedagogic, but not halachic reasons. The rounding of pi to three and the diagonal of a square to 1.4 were provided to make the material easily comprehensible to all students, since every individual is required to know the entire Torah. Thus, when Chazal used these estimates in calculating the laws, their intent was to enable the average student to comprehend the halachic material, not to provide the most accurate interpretation. When an actual halachic calculation is made, it must be totally accurate, and any halachic authority involved would realize that he must use a highly accurate mathematical computation and then round either upward or downward as necessary for the specific application. (A similar position is held by Chiddushim Uviurim, Ohalos 5:6.)

Conclusion

Certainly, the majority of late halachic opinions conclude that the estimates of Chazal are meant to be halachically definitive, and not simply pedagogic in nature. However, I leave it to the individual reader to ask his or her posek what to do when a practical question presents itself.

The midrash at the beginning of this week’s parsha mentions that the details of all mitzvos were taught at Sinai, making this topic extremely timely…

Question #1: Choosing your Mitzvos

“I don’t have enough money for all the mitzvah objects that I need. Which should I purchase?”

Question #2: Extra Mezuzos

“I have extra mezuzos. May I use them for tefillin?”

Question #3: When Do We Recite a brocha?

“Why don’t we recite a brocha when we put tzitzis onto a garment, yet we recite a brocha when we affix a mezuzah to a door?”

Introduction

The first two of our opening questions deal with a very interesting issue: Are there hierarchies among our mitzvos? In other words, are some mitzvos more important than others?

We do not usually attempt to judge which mitzvah is more important, since it is our obligation to observe all the mitzvos to the best of our ability. Nevertheless, there are occasional circumstances when we must decide which mitzvah is more “valuable.” One example when this could happen is when we must choose between observing one mitzvah and another. The Gemara (Rosh Hashanah 34b) discusses a situation in which one has to choose whether to spend Rosh Hashanah in a place where there is someone to blow shofar, but no Rosh Hashanah davening, or in another place where there is Rosh Hashanah davening, but no shofar. The Gemara concludes that it is more important to spend Rosh Hashanah in a place where there might be an opportunity to fulfill the mitzvah of shofar, than to go somewhere else where there will definitely be davening but no shofar blowing. This is because safek d’oraysa, a possibility of fulfilling a mitzvah min haTorah,carries more weight than definitively fulfilling that which is required only miderabbanan.

Yerushalmi

A more revealing and detailed discussion is in the Talmud Yerushalmi, at the very end of Mesechta Megillah, which quotes a dispute between Shmuel and Rav Huna concerning someone who has only sufficient money to purchase either tefillin or mezuzah, but not both. The question debated in the passage of the Yerushalmi is: Which mitzvah is it more important to fulfill? The explanations provided in this passage of the Yerushalmi provide insight into other mitzvos, should these rules need to be applied. For example, should someone have to choose between purchasing the four species for Sukkos or materials for a sukkah, which takes precedence? (For simplicity’s sake throughout the rest of this article, I will refer to the purchasing of the four species for Sukkos as simply the mitzvah of “lulav.”) Or, should one have to choose between purchasing a lulav or purchasing tefillin, which takes precedence? This passage of Yerushalmi provides foundation for subsequent halachic discussion on these issues.

Let us quote the passage of the Yerushalmi:

Tefillin and mezuzah, which comes first? Shmuel said, “Mezuzah comes first.” Rav Huna said, “Tefillin comes first.” What is Shmuel’s reason? Because mezuzah applies on Shabbos and Yom Tov. What is Rav Huna’s reason? Because tefillin applies to people traveling on the seas and in deserts. A beraisa (teaching of the era of the Mishnah, but not included in the Mishnah) supports Shmuel, which says that if tefillin have worn out, one may use its parshiyos (written parchments) for mezuzah, but one may not use a mezuzah for tefillin, since we have a general rule that one increases but does not decrease sanctity.

To explain the Yerushalmi’s conclusion: The mitzvah of tefillin requires use of four sections of the Torah, two in parshas Bo, and two others, the first two of the three parshiyos of kerias shma, which are from parshas Va’eschanan and parshas Eikev. A mezuzah includes only these last two sections of the Torah. May one take the pieces of parchment that were used as a mezuzah and use them for tefillin, or vice versa — if they were used for tefillin can they be used for a mezuzah?

Understanding Shmuel

Shmuel contends that since mezuzah applies every day of the year, it is a greater and holier mitzvah than tefillin. The Gemara quotes two ramifications of this ruling:

(1) Should one be able to fulfill only one of these two mitzvos, mezuzah is preferred.

(2) Parshiyos once used for tefillin may be used for a mezuzah, but a mezuzah may not be used for parshiyos in tefillin. Since mezuzah is a holier mitzvah, using a mezuzah for tefillin decreases its sanctity, which is not permitted. This is because of a general halachic rule, maalin bekodesh velo moridim:something may be elevated to a use that is of greater sanctity, but it may not be reduced to a lower level of sanctity. For example, a kohein gadol can never return to being a kohein hedyot, a regular kohein. Since the beraisa quoted by the Yerushalmi states that one may not use mezuzah parshiyos for tefillin, the conclusion is, like Shmuel, that mezuzah is more important.

There is a question on Shmuel’s explanation. In what way does mezuzah apply on Shabbos and Yom Tov, when one is not permitted to put a mezuzah on a door on either of these holidays, because of the melacha involved? The answer is that, if someone is required to affix a mezuzah but did not, he is not permitted to spend Shabbos in that house unless he has nowhere else to live (see Pri Megadim, Orach Chaim, Eishel Avraham 38:15; Aruch Hashulchan, Yoreh Deah 285:5). In other words, although one may not install a mezuzah on Shabbos or Yom Tov, the mitzvah still applies on those days.

Understanding Rav Huna

Rav Huna explains that on days that one is obligated to wear tefillin, there are no exemptions from that responsibility. On the other hand, someone who has no residence is not obligated in mezuzah. In theory, one can exempt oneself from the mitzvah of mezuzah by avoiding living in a residence. Therefore, tefillin is a greater mitzvah than mezuzah.

This has two ramifications:

(1) Should one be able to fulfill only one of these two mitzvos, tefillin is preferred.

(2) A mezuzah may be used for parshiyos in a pair of tefillin, but parshiyos used for tefillin may not be used for mezuzah. Since tefillin is a holier mitzvah, using parshiyos of tefillin for a mezuzah decreases their sanctity, which is not permitted.

How do we rule?

The Rosh (Hilchos Tefillin, Chapter 30) rules that the mitzvah of tefillin is more important, and this approach is followed by the Tur, the Shulchan Aruch (Orach Chayim 38:12), the Rema (Yoreh Deah 285:1) and the later authorities. The Rosh explains that tefillin is more important because a mitzvah de’gufei adif, literally “a mitzvah of your body is more important.” What does this mean?

One early acharon, the Beis Hillel (Yoreh Deah 285), understood the Rosh to mean that the mitzvah of tefillin is more important because one puts tefillin on his body, as opposed to mezuzah, which is on one’s house, not body. Based on his reason, the Beis Hillel concludes that tefillin is more important than sukkah or lulav, since neither of these mitzvos is performed on one’s body to the extent that tefillin is. Once the Beis Hillel is discussing which mitzvos are “more important,” he discusses whether tefillin is more important than tzitzis or vice versa, concluding that tefillin are more important, since the name of Hashem is in the tefillin.

However, most authorities understand that the Rosh means something else. They explain that the mitzvah of tefillin is inherently obligatory, whereas the mitzvah of mezuzah is circumstantial. Every weekday there is an obligation for every adult Jewish male to don tefillin. The mitzvah of mezuzah is not inherently obligatory, but is dependent on one’s living arrangements, and can be avoided completely (Gra; Rabbi Akiva Eiger, in his notes to Shulchan Aruch and Responsum 1:9; Aruch Hashulchan, Yoreh Deah 285:5). Furthermore, according to most authorities, mezuzah is obligatory min haTorah only if one owns the house in which he lives.

A big difference between these two approaches is germane to the mitzvos of lulav and sukkah. According to the Beis Hillel, these mitzvos carry less weight than tefillin. However, according to those who disagree with him, both of these mitzvos are inherently obligatory, just as tefillin. This would mean that, regarding the Rosh’s criterion, all three of these mitzvos should be treated on an equal footing, and we would need to find other criteria to decide which of them is more important.

Tefillin or Sukkah?

Rabbi Akiva Eiger notes that the above-discussed passage of Yerushalmi provides an answer to this question. There it stated that a mitzvah that occurs more frequently should be prioritized over one that occurs less frequently. Tefillin is far more frequently observed than either sukkah or lulav, and, therefore, should be treated with more priority than they are.

However, notes Rabbi Akiva Eiger, this question is usually moot for the following reason: When one has a mitzvah that he is obligated to observe immediately, he does not wait to fulfill it. Therefore, any time other than erev Sukkos, one who needs to choose between these mitzvos should use the funds to acquire tefillin, since he has that responsibility immediately, and the mitzvos of Sukkos will wait. If the situation occurs during chol hamoed Sukkos, the priority will be: sukkah, tefillin, lulav. This is because the mitzvah of sukkah is, at the moment, definitely min haTorah, whereas even those who wear tefillin on chol hamoed accept that it is disputed whether there is a mitzvah to wear them on chol hamoed. Therefore, sukkah, which is definitely a requirement min haTorah on all seven days of Sukkos, takes precedence over tefillin. Since the mitzvah of taking lulav is min haTorah only on the first day of Sukkos, but afterwards is required only miderabbanan (unless one is in or near the Beis Hamikdash grounds), tefillin will have precedence over lulav for those who wear tefillin on chol hamoed, which is the assumption that Rabbi Akiva Eiger makes.

Tefillin versus tzitzis

Rabbi Akiva Eiger agrees that tefillin is more important than tzitzis, but for a different reason than that provided by the Beis Hillel. Tzitzis is like mezuzah – there is only an obligation if he has a four-cornered garment, but it is not an automatic requirement. Although one is obligated to place tzitzis on any four-cornered garment that one owns and wears, one can avoid wearing four-cornered garments more easily than one can avoid living in a house that one owns. On the other hand, a man is required to wear tefillin every weekday.

Difficulty with the Rosh

Notwithstanding that all later authorities conclude that tefillin is considered a more “important” mitzvah than mezuzah, a difficulty is presented by the Rosh’s conclusion. Why would he rule according to Rav Huna, when the Yerushalmi’s conclusion is, like Shmuel, that mezuzah is a more important mitzvah?

The answer is that the Talmud Bavli (Menachos 32a) states the following: “A sefer Torah that wore out, or tefillin that wore out, cannot be used for a mezuzah, because one is not permitted to reduce something from a greater sanctity to a lower one.” Thus, we see that the Bavli ruled according to Rav Huna, that tefillin is a greater mitzvah than mezuzah, and the halacha follows the Bavli over the Yerushalmi (Beis Yosef, end of Orach Chayim, Chapter 38).

Practically speaking

The Magen Avraham (38:15), one of the major halachic authorities, notes that, although the mitzvah of tefillin is more important than mezuzah, in practice it might be better for someone to purchase mezuzos. Someone might be able to coordinate his schedule such that he can borrow tefillin from other people when he needs them for davening every day, something impractical to do with mezuzos. Thus, if he can thereby observe both mitzvos, he should purchase the mezuzos to allow this. This ruling is followed by the later authorities (Shulchan Aruch Harav; Mishnah Berurah; Aruch Hashulchan).

Nevertheless, the rule has not changed: Someone who will be unable to observe the mitzvah of tefillin should purchase tefillin first and wait until he has more resources before he purchases mezuzos (Shulchan Aruch Harav; Mishnah Berurah; Aruch Hashulchan).

Choosing your mitzvos

At this point, we can now address our opening question: “I don’t have enough money for all the mitzvah objects that I need. Which should I purchase?”

The halachic conclusion is:

He should first see which mitzvos he can fulfill without purchasing them. For example, he might be able to borrow tefillin, and he also might be able to use someone else’s sukkah. If he lives near someone else who is observant, he should be able to fulfill the mitzvah of lulav with someone else’s lulav. In earlier generations, it was common for an entire community to purchase only one set of four minim, and everyone used that set to fulfill the mitzvah. Mezuzah is more difficult to observe with borrowed items, and, therefore, he might need to purchase mezuzos ahead of tefillin, lulav, or sukkah, notwithstanding that they are obligatory mitzvos to a greater extent than mezuzah is.

Furthermore, which mitzvah he will need to observe first might be a factor, as we saw from Rabbi Akiva Eiger’s discussion about someone who needs to purchase tefillin, sukkah and lulav.

When Do We Recite a Brocha?

At this point, we can discuss the third of our opening questions: “Why don’t we recite a brocha when we put tzitzis onto a garment, yet we recite a brocha when we place a mezuzah on a door?”

This question is raised by the Magen Avraham, in his commentary on the following words of the Shulchan Aruch (Orach Chayim 19:1): “Until one dons the garment, one is exempt from putting tzitzis on it. For this reason, one does not recite a brocha when one places the tzitzis on the garment, since the mitzvah is only when you wear it.”

The Magen Avraham (19:1) asks why we do not recite a brocha when putting tzitzis onto a garment, yet we recite a brocha when we affix a mezuzah to a door? The Magen Avraham answers that the reason is practical. Usually, one moves into the house first, before he installs the mezuzah, and, since he already lives in the house, he is responsible to have a mezuzah on the door. Thus, placing the mezuzah on the door is the fulfillment of the mitzvah and warrants a brocha. On the other hand, one does not usually place tzitzis on a garment while wearing it, but before he puts it on, when there is no obligation yet to fulfill a mitzvah.

Based on his analysis, the Magen Avraham rules that should any of the tzitzis tear off a garment while someone is wearing it, and he attaches replacement tzitzis while he is still wearing it, he should recite a brocha prior to attaching the replacement. The brocha he would recite in this instance is Asher kideshanu bemitzvosav vetzivanu la’asos tzitzis, which translates as a brocha “to make tzitzis,” a text that we do not have recorded by any earlier authority.

Notwithstanding his conclusion, the Magen Avraham rules that this is not the preferable way to act, but, rather, he should remove the tzitzis once they become invalid and attach replacement tzitzis without a brocha. On the other hand, the Magen Avraham contends that if a mezuzah falls off or becomes invalid, the occupant is not required to relocate until he can replace the mezuzah. The difference between the two cases is how much tircha the person is required to undergo – one is required to remove a pair of tzitzis, which is a simple act, but not required to relocate himself and his family until he has a chance to replace or reaffix the mezuzah.

The Magen Avraham then suggests that if someone affixed a mezuzah before he moved into a house, he should not recite the brocha when he affixes the mezuzah, but when he moves in he should recite the brocha, Asher kideshanu bemitzvosav vetzivanu ladur babayis sheyeish bo mezuzah, “to live in a house that has a mezuzah,” again, a new text of a brocha not recorded by any earlier authority.

The Birkei Yosef (Orach Chayim 19:2) disagrees with the Magen Avraham, contending that we should not create texts of brochos that we do not find in early sources. In regard to the Magen Avraham’s question, why do we recite a brocha upon affixing a mezuzah but not upon placing tzitzis, the Birkei Yosef provides a different answer: Chazal required a brocha on the last act that you do to fulfill a mitzvah. In the case of tzitzis, it is when you put on the garment. In the case of mezuzah, it is when you affix it. However, if there is a mezuzah on the door already, one does not recite a brocha upon moving into a house, since one did not perform any act to fulfill the mitzvah.

Conclusion

A famous quotation from a non-Jewish source is: “Is G-d more concerned about what comes into our mouth or what comes out?” This question assumes that some of Hashem’s mitzvos are more “important” for us to observe than others. The Torah’s answer is that it is not for us to decide which of the mitzvos is more important. One grows in one’s relationship with Hashem through each opportunity to perform a mitzvah.

Parshas Kedoshim contains one of the two places in the Torah where the mitzvos of kil’ayim are taught.

Question #1: Kil’ei beheimah

May one attempt to crossbreed a mule with a stallion?

Question #2: Kil’ei zera’im

May I plant the vegetables in my garden close together?

Question #3: Kil’ei hakerem

Is there any way that I can plant vegetables near my vineyard?

Question #4: Harkavas ilan

Must I be careful before I purchase a fruit tree?

Many people assume that the halachic definition of the mitzvah of kil’ayim is the crossbreeding of different species of plants or animals, but, as we will soon see, not all of the laws of kil’ayim have to do with what a farmer or a scientist would call crossbreeding or hybridization.

My desktop dictionary defines hybrid as “the offspring produced by breeding plants or animals of different varieties, species, or races.” Thousands of years ago, mankind crossbred horses and donkeys to create mules and hinnies. This hybrid, called a pered (female pirdah) is already mentioned many times in Tanach. As a pack animal, the mule — produced from a male donkey, called a “jack” and a mare (female horse) — has many advantages over either of its parents. It is usually as strong as a horse, sturdy, sure-footed, and, notwithstanding its reputation for being “stubborn as a mule,” is more reliable for hauling than draft horses. (A hinney, which has less commercial value, is produced from a stallion (male horse) and a female donkey, called a “jenny.” The word “hinney” comes from its parents – a horse and a jenny.)

Other crossbred animals

Artificial insemination has been used to crossbreed camels and llamas with the goal of producing a larger quantity of quality llama wool. Mankind has created such interesting creatures as ligers, crossbreeds of male lions and tigresses, tiglons (sometimes called tigons) from male tigers and lionesses, leopons (male leopards and lionesses), wholpins (whales and dolphins) and geeps (goats and sheep). Most of these have resulted in limited, if any, commercial value, although it was thought by some that they might.

Crossbreeding animal species is one of the prohibitions of the Torah when it declares behemtecha lo sarbia kil’ayim (Vayikra 19:19). It is one of the unusual mitzvos that even a non-Jew is required to observe (Rambam, Hilchos Melachim 10:6).

The prohibition is only to create the crossbreed; one may use a mule or any other crossbred animal. However, not only is it prohibited to crossbreed a horse with a donkey, it is even forbidden to attempt to breed a mule or hinney with either a donkey or a horse (Mishnah, Kil’ayim 1:6). In fact, it is rare that such an attempt will produce offspring, although it is claimed anecdotally that this can happen upon occasion. Nevertheless, someone who attempts to crossbreed them violates a Torah prohibition.

Crossbreeding of plants

Crossbreeding of plants, or, as it is usually called, cross-fertilization or cross-pollination, is when one pollinates the flower of one species with pollen from a different species, to produce offspring with some characteristics of each. Many fruits have been developed this way, although I want to share that a nectarine is not a crossbreed of a peach and a plum, as often mistakenly thought. A nectarine is an ancient variety of peach (Prunus persica) that has a smooth skin. Botanists consider it to be the same species as peaches.

What is interesting is that, in the discussions about kil’ayim in the Torah, the Mishnah and the writings of Chazal, nowhere does it say that it is prohibited to cross-pollinate from one plant species to another. This does not mean to say that there is no prohibition of kil’ayim germane to trees or plants. Quite the contrary, there are three such prohibitions min haTorah. They are referred to as kil’ei zera’im, kil’ayim in plants; kil’ei hakerem, kil’ayim in vineyards; and kil’ayim in trees, usually referred to as harkavas ilan. But, as we will soon see, none of these three prohibitions has anything to do with crossbreeding.

Kil’ei zera’im

Kil’ei zera’im is planting two or more different species of grains, vegetables or other edible herbaceous plants in close proximity. Exactly what defines “close proximity” is a very complicated halachic topic, and depends on factors such as the shape and size of the vegetable patch, and what variety of produce one is planting. We should note that, from a botanical point of view, planting two species in close proximity will not cause hybridization because it does not affect the genetic makeup.

This mitzvah applies only in Eretz Yisroel. Thus, someone in chutz la’aretz may plant his backyard garden with a wide variety of vegetables without any halachic concern, whereas in Eretz Yisroel someone planting a garden patch must be very careful to keep the different species separate.

Kil’ayim in a vineyard, kil’ei hakerem

Kil’ei hakerem is the prohibition against planting grains or vegetables in, near, above or below a vineyard. Again, this forbidden planting will not affect the genetic makeup of any of the plants involved. It is also clear that this was not the concern in halacha as we see from many of the halachic details. Here is one example: Although it is prohibited to plant grains or vegetables near a vineyard, there is a way to permit it by separating the vegetable patch from the vineyard with a halachic wall between them. For example, if one places two poles and a wire across the top, a tzuras hapesach, between the vegetable patch and the vineyard, it is permitted to plant vegetables right next to the vineyard (Eruvin 11a). This is similar to what we do when we construct an eruv to permit carrying on Shabbos. It is quite clear that, botanically, the tzuras hapesach does not accomplish anything to prevent the mingling of the species. Yet, with the tzuras hapesach, it is permitted to plant the crop; without the tzuras hapesach, it is a Torah prohibition to do so! This certainly cannot be explained on a scientific basis.

Even one grapevine is problematic near a crop plant, so care must be taken even in the home garden. For example, a pot with herbs or a vegetable under a trellised grapevine could forbid the grapes and the produce of the pot!

Unlike other forms of kil’ayim, the produce of kil’ei hakerem is forbidden to use.

The prohibition of planting grains or vegetables in a vineyard applies in chutz la’aretz, but only miderabbanan (Kiddushin 39a).

Harkavas ilan – grafting trees

The laws of kil’ayim also prohibit grafting one species of tree or plant onto the wood stock, or lower trunk, of another species. Although a town dweller may feel that this is a rare occurrence, in fact, contemporary plant nurseries and tree farmers usually graft branches of a species that produces delicious fruit onto the hardier stock of a different species.

For example, most peach and nectarine trees are produced by grafting a peach or nectarine branch onto the stock of a hardier tree, such as an almond. Someone who performs this, either in Eretz Yisroel or in chutz la’aretz, violates a Torah prohibition whether he is Jewish or not (Rambam, Hilchos Melachim 10:6). Most authorities rule that one may not own, water or prune a kil’ayim tree, whether or not it is in Eretz Yisroel or in chutz la’aretz (Shulchan Aruch Yoreh Deah 295:7 and Piskei Teshuvah).

However, many observant Jews purchased agricultural properties that contained kil’ayim trees and did not cut down those trees. Was there any justification for their actions? Numerous halachic responsa discuss what was apparently a widespread practice in the eighteenth and nineteenth century. Whereas most poskim rule that these Jews violated the halacha, some authorities justify the practice of owning these trees, at least in chutz la’aretz (Shu’t Chasam Sofer, Yoreh Deah #288; Aruch Hashulchan, Yoreh Deah 295:17-18).

Because so many trees are grafted nowadays, someone who owns a fruit tree should have a horticultural expert check whether its stock is from the same species or not. Often, even a non-expert can detect if a tree was grafted onto a different species by simply scrutinizing the tree. If the bark somewhere near the bottom of the tree looks different from the upper part of the tree, this indicates that the upper part of the tree was grafted. Often one can see a line separating the grafted scion from the rootstock, or a difference in thickness between the top and bottom. Before purchasing a new tree at a nursery, examine the trunk carefully for signs of grafting.

The prohibition of planting vegetables and other edible crops together applies only in Eretz Yisroel, whereas grafting trees applies equally min hatorah in chutz la’aretz and in Eretz Yisroel.

Although planting and caring for a kil’ayim tree is forbidden, the fruit from such a tree is permitted. Thus, one may purchase fruit in a market without worrying about kil’ayim.

Esrogim

Although space does not allow us to discuss this fascinating topic, there is a huge amount of halachic literature discussing the very common instance of using an esrog from a tree that was grafted onto a non-esrog tree. Most authorities rule that this esrog may not be used to fulfill the mitzvah on Sukkos.

Conclusion

Rav Hirsch (Vayikra 19:19) explains that the root word ke’le means to keep or hold something back, and that the plural form kil’ayim is similar to yadayim or raglayim and means a pair. Therefore, the word kil’ayim means to pair together two items that should be kept apart. This is to teach us that although we are given the world to develop, we must follow the rules that Hashem established for us to do so.

Question #1: Earliest Maariv?

When is the earliest time that I may daven maariv?

Question #2: Earliest Shabbos?

May I daven maariv earlier on Friday evening?

Question #3: Earliest Conflict?

What does “tartei desasri” mean?

Question #4: Early Meal?

If I make “early Shabbos,” when may I begin the Shabbos meal?

Background

We may have heard terms like “mincha gedolah,” “mincha ketanah,” “plag,” “Magen Avraham’s zman,” “Gra’s zman,” “tosefes Shabbos;” and “tartei desasri” and have an approximate idea of what they mean, yet not a perfect understanding.

Let’s explain some of the terms:

Mincha gedolah: This is the earliest time that it is permitted to daven mincha (Brachos 26b, see Rashi and Rambam), and is half an hour after halachic midday (ibid.). For virtually all the calculations that we will be making, “an hour” is what we call a sha’ah zemanis, which means that we divide the daytime into twelve parts, and each part is considered an hour. One of the major questions that we will be discussing is whether the “daytime” we are dividing is calculated from sunrise to sunset (which means that it averages out over the year to about sixty minutes) or whether it is calculated from halachic dawn until nightfall, in which case each hour is considerably longer.

Mincha ketanah: The preferred time to daven mincha is after mincha ketanah (Brachos 26b, see Rashi and Rambam). This is half an hour after the day is three-quarters over (ibid.). Expressing this in a more mathematical way, it is 9.5/12 or 19/24 of the day. Here the range among the various opinions is much wider than it is for mincha gedolah. The time on your home clock for mincha ketanah is much later when you end the day at nightfall than when you end it at sunset because your daytime hours and length of each hour are longer.

Plag, or, as it should properly be called, “plag hamincha,” is midway between mincha ketanah and the “end” of the day. The word plag literally means “splitting” or “half.” The mathematical way of expressing this is 10.75/12, or 43/48 of the way through the day, meaning that if you divide daytime into 48 quarter-hours, calculating backward from the end of the day by five of these quarter-hours is plag haminchah. The same dispute that I mentioned earlier, whether we calculate the end of the day from nightfall or from sunset, also makes a tremendous difference here regarding when is plag haminchah.

The main halachic factors determined by plag hamincha are when is the earliest time of day that one may daven maariv, and when is the earliest time of the day that someone may light the Shabbos lights and accept Shabbos.

“Magen Avraham’s zman” and “Gra’s zman:” These terms are used most frequently in reference to the latest time by which Shema must be recited every morning, which is before a quarter of the day has passed. The difference between these two zmanim is that the Magen Avraham calculates the day from alos hashachar, sometimes called halachic dawn, until tzeis hakochavim (Magen Avraham 58:1), “when the stars come out,” whereas the Gra calculates it from sunrise to sunset (Orach Chayim 459:2; Aruch Hashulchan, Orach Chayim 261:10). Calculating the other three times of the day that I mentioned above — mincha gedolah, mincha ketanah, and plag hamincha — is also dependent on the same question: whether we calculate these zmanim by beginning the day at alos hashachar and ending it at tzeis hakochavim, or by beginning it at sunrise and ending it at sunset. (There are authorities who calculate some of these laws from alos hashachar to tzeis hakochavim and others from sunrise to sunset; see acharonim who explain above Magen Avraham; Achuzas Sadeh, page 62.)

The Gemara mentions that the cutoff-point between one day and the next, is at tzeis hakochavim, “when the stars come out” (Brachos 2a-b; Pesachim 2a; Megillah 20b). There are authorities who reach a different halachic conclusion, but we will discuss this some other time.

Tosefes Shabbos: the halachic requirement to begin observing Shabbos before the day has yet arrived and, also, to continue observing Shabbos for some time after the day is over on Saturday night. Even if we are able to calculate the exact moment that Shabbos begins and ends, we are required to add time, before it begins and after it ends.

Tartei desasri, literally, two that contradict, means two practices that conflict with one another, because they follow two opposing opinions. We will soon see how this applies to our discussion.

Opening questions

At this point, let us discuss our first opening question: When is the earliest time that I may daven maariv?

Although several Mishnayos discuss the beginning and ending time of many mitzvos and prayers, they make no reference to the earliest time to daven maariv. Instead, the Mishnah (Brachos 26a) states that “the maariv prayer has no established time.” The same Mishnah records a dispute among tanna’im when is the latest time to daven mincha (Brachos 26a): An anonymous tanna, whom the Gemara calls the “Sages” (chachamim), permits davening mincha “until evening,” whereas Rabbi Yehudah ends the time for mincha at plag hamincha, notwithstanding that the day is not yet over.

The Gemara (Brachos 26b) then quotes a Tosefta (Brachos Chapter 3) in which these tanna’im explain their opinions. Rabbi Yehudah contends that the latest time for mincha is at plag hamincha because this is the latest time that the afternoon korban tamid may be offered in the Beis Hamikdash. The Sages disagree with Rabbi Yehudah, contending that the korban tamid may be offered until the end of the day and, therefore, the prayer of mincha may also be recited until then. Thus, all agree that the time for davening mincha is dependent on when the afternoon korban tamid may be offered.

In the Tosefta and Gemara, it states that maariv has no “set time” because the remains of the korbanos that were offered during the previous day are burnt on the mizbeiach all night long.

Earliest Maariv?

As mentioned, the Mishnah says nothing about when the time for maariv begins. However, the following Gemara implies that it begins when the time for mincha ends. The Gemara notes that Rav davened the maariv of Shabbos when it was still Friday afternoon; the Gemara derives from this practice that Rav accepted the opinion of Rabbi Yehudah. The Gemara then concludes that, since Rav Huna and other great rabbis did not daven maariv until it was night, they follow the opinion of the Sages. Thereby, the Gemara implies that the time for maariv begins whenever the time for mincha ends; since Rav davened maariv before nightfall, he must hold like Rabbi Yehudah that it is now too late to daven mincha. According to the Sages, that the latest time for mincha is “evening,” one cannot daven maariv earlier.

Rabbi Yehudah or the Sages?

The Gemara discusses whether the halacha accords with Rabbi Yehudah, that the demarcation between mincha and maariv is plag hamincha, or whether we rule like the Sages, that it is the end of the day. After rallying various opinions in either direction, the Gemara concludes that there is no clear-cut accepted practice, and, as a result, each individual can choose which approach he wants to follow. This leads us to the following question, which the rishonim address: Can one daven sometimes according to the opinion of Rabbi Yehudah, and sometimes according to the Sages? Although there are many instances in halacha of tartei desasri, the one involving davening mincha and maariv is the most commonly referred to instance.

Tartei desasri

I explained above that this means following two practices that conflict with one another, because they follow opposing opinions. For example, the Gemara prohibits certain practices that would be following the opinion of Beis Hillel, in one aspect, and that of Beis Shammai, in another. This is prohibited because, taken together, someone is doing something not accepted by either academy (Eiruvin 7a).

At this point, our question is as follows: May someone follow the opinion of the Sages by davening mincha after plag, and also follow the opinion of Rabbi Yehudah and daven maariv before the day ends? Although the halacha does not definitively follow either Rabbi Yehudah or the Sages, davening mincha at a time that Rabbi Yehudah rules is too late, and maariv when the Sages consider it too early, is tartei desasri (Tosafos, Brachos 2a s.v. Mei’eimasai). Although I may follow either of the two opinions, tartei desasri implies that I cannot mix – since this results in following no opinion.

Most rishonim consider this a concern, the majority contending that someone should decide that he follows either Rabbi Yehudah, and never davens mincha after plag hamincha, or that he follows the Sages, and never davens maariv before the day ends.

Some rishonim rule that this is a problem only on the same day, i.e., one should not daven mincha after plag and maariv before the day ends on the same day, but there is no problem doing this on different days (see Mordechai, Brachos #89, cited by Magen Avraham). Although most rishonim do not hold this way, the prevalent custom is to follow this approach.

There is a minority opinion that there is no problem with davening mincha and maariv in a way that causes a tartei desasri, particularly when davening with a tzibur (see Beis Yosef, Orach Chayim 235; Taz, Orach Chayim 235:2; Yad Efrayim, 267:1).

Fourteenth century conundrum

In the fourteenth century, it was apparently common among Ashkenazim that the summertime communal mincha–maariv minyan was scheduled considerably before plag hamincha. This raises a major halachic concern, because no opinion cited by the Gemara allows davening maariv this early.

This issue was raised by perhaps the most prominent poseik of the era, the Terumas Hadeshen (1:1), who notes that the practice seems to defy the rules we would derive from the Gemara. Yet, he concludes that one should daven together with the community minyan. Although the Terumas Hadeshen does not fully explain his conclusion, he may opine that a community’s prayer schedule may be more flexible than that of an individual, as evidenced by a different passage of Gemara (Brachos 27b). We should note that the Gemara mentions this factor only regarding a situation in which an error occurred that caused the tzibur to daven too early.

Earliest Shabbos?

At this point, we will address the second of our opening questions: May I daven maariv earlier [than I usually do] on Friday night?

The Shulchan Aruch (Orach Chayim 267:2) permits davening maariv on Friday evening while it is still day, even according to the Sages. This appears to contradict the Gemara, cited above, that permitted davening maariv early on Friday night only according to Rabbi Yehudah.

I am aware of at least four approaches that can be used to justify this practice, three of which are mentioned by the Magen Avraham (267:1):

(1) The Baal Halachos Gedolos and other authorities understand that a later passage of Gemara permits early maariv on Friday night even according to the opinion of the Sages. The rationale for this is because tosefes Shabbos permits davening early, since accepting Shabbos prohibits davening the weekday mincha of Friday. Once the time of mincha ended (because he accepted Shabbos), the time for maariv automatically begins, even though night has not yet begun (Mordechai; Olas Shabbos 267:1; Penei Yehoshua, Brachos 27a s.v. Amar rav Chanina).

(2) As I mentioned above, Chazal instituted the nightly prayer of maariv, corresponding to placing leftover parts of the day’s korbanos on the mizbei’ach. On a weekday in the Beis Hamikdash, what was not consumed by the fires during the day was burnt at night. However, this was the procedure only on a weekday. No leftovers were burnt on Friday night, because it is Shabbos; instead, they were burnt Friday afternoon. Since maariv corresponds to the burning of these parts of the korbanos, it is permitted to daven maariv at the time that these were offered – on Friday before nightfall.

(3) The Magen Avraham suggests a different reason why someone may daven earlier on erev Shabbos — based on the opinion of the Mordechai that permits following the opinion of Rabbi Yehudah one day and that of the Sages on a different day. Thus, you may daven mincha before plag and maariv after plag on Friday, notwithstanding that the rest of the week you daven mincha much later in the day.

(4) According to the above-mentioned responsum of the Terumas Hadeshen, a tzibur may daven maariv early, immediately after davening mincha, even though we would otherwise consider it too early to daven maariv. This approach might be based on the idea that tefillas aravis reshus, that maariv is less obligatory than the other tefillos, and therefore one can be more flexible with its time.

There are several halachic differences (nafka mina) that result from these various answers. For example, according to the first two approaches, it is acceptable to daven mincha on Friday evening after plag and maariv immediately after, and it is not considered tartei desasri.

The Magen Avraham concludes that someone davening maariv early on Friday evening should daven mincha before plag. This is because he accepts the third approach, that of the Mordechai, as the main heter, notwithstanding that he quoted three reasons to be lenient.

Nevertheless, the accepted practice, in most places, is to be less concerned than is the Magen Avraham.

Earliest Shema?

When is the earliest time to fulfill the mitzvah of reciting Shema at night?

Most rishonim assume that the earliest time to recite the Shema is at tzeis hakochavim. After all, most mitzvos that we observe at night are dependent on tzeis hakochavim.

However, when the Torah instructs us concerning the mitzvah of reading the Shema, it never says that the mitzvah is at night. The Torah teaches that we are to perform the mitzvah be’shachbecha, when we go to bed, or while we are in bed (see Rashi, Brachos 2a). This distinction produced much halachic literature at the time of the tanna’im, many of whom held that the time for reciting the evening Shema does not necessarily begin at tzeis hakochavim (Brachos 2b). Rabbeinu Tam concludes that one may fulfill the mitzvah of reciting Shema as early as plag hamincha. His reasoning why Shema is different appears to be that the Torah never states that Shema be recited at night, but when you go to bed, and there are those who go to bed early.

Early Meal?

At this point, let us discuss the last of our opening questions: If I make “early Shabbos,” must I be careful what time I begin eating the Shabbos meal?

The halacha prohibits beginning a meal once it is the time for reciting Shema, or even within a half hour of that time, without first reciting Shema. This means that if it is less than half an hour before the time that the day ends, one must wait until it is nightfall and recite Shema before beginning the meal.

However, there is no problem with beginning the meal more than half an hour before nightfall, continuing the meal into the night, and reciting Shema when the meal is over. Since it was permitted to start the meal, Chazal did not require interrupting the meal to say Shema.

Someone who starts Shabbos shortly after plag hamincha and begins the meal within a short time thereafter does not have any concern about this halacha, since he is beginning the meal well before half an hour before the time to recite Shema. The question concerns someone who starts Shabbos at a set time every week, and the meal sometimes starts within half an hour of the time to recite Shema. Is he permitted to begin his meal now, or must he wait until it is late enough for him to recite Shema before he begins his meal?

Indeed, the conclusion of many prominent authorities is that he should wait until he recites Shema (Magen Avraham 235:2).

However, although most rishonim do not accept Rabbeinu Tam’s approach that one can fulfill the mitzvah of reciting Shema after plag hamincha, there are those who do (Mordechai, Hagahos Maimani, Raavyah, all quoted by Terumas Hadeshen 1:1). The Beis Yosef (Orach Chayim 235, quoting Mordechai, Shabbos 224 and Ran) and others conclude that, although everyone who davens maariv before it is fully dark should recite the full Shema later and not rely on Rabbeinu Tam’s opinion, regarding the rabbinic prohibition to delay the meal until he recited Shema, one may rely on Rabbeinu Tam that he already fulfilled the mitzvah and may begin the meal already (Beis Yosef, Orach Chayim 267 and Yad Efrayim).

Conclusion — Why is maariv different?

As the Gemara teaches, Yaakov Avinu introduced maariv. If so, why does the Gemara discuss whether maariv is an obligatory prayer or not? Although we consider maariv to be obligatory, it sounds like someone considered it “second rate” relative to shacharis and mincha,which were established by Avraham and Yitzchak?

The Penei Yehoshua answers that Yaakov was not planning to daven maariv; he had intended to daven mincha, but Hashem caused the sun to set suddenly, giving Yaakov no choice but to daven after nightfall. Since this davening was performed not as Yaakov’s first choice, but because he had no other option, this allows us the option to be more flexible regarding the time of this prayer – a very helpful halachic consideration when Shabbos begins late (Penei Yehoshua, Brachos 26b s.v. Mihu).

The Charoses Saga

Question #1: How Deep a Dip?

How deep into the charoses am I supposed to dip the maror?

Question #2: Only Lettuce!

What do you serve for karpas, if you realize that the only vegetable you have in the house is the lettuce you were planning to use for maror?

Introduction

Much Pesach and pre-Pesach discussion focuses on the vast preparation necessary for the holiday and, also, on the mitzvos of the Seder. Because of the importance of the mitzvos of hagadah and matzoh, some of the less vital aspects of the Seder sometimes get shunted to the side. One of these observances is that of the charoses, which actually has considerable discussion in the Gemara. We will be discussing some of the questions germane to charoses, such as:

Is charoses a mitzvah of its own, or just a garnish to the maror?

If it is a mitzvah, how do we fulfill its observance?

Does it require eating a kezayis within a specific timeframe?

Let us begin our discussion from the earliest halachic source that mentions charoses, the Mishnah (Pesachim 114a) that states, “They brought in front of him [the person leading the Seder] matzoh, lettuce, charoses and two cooked items [these correspond to the zeroa and the beitzah that we have at our Seder], even though charoses is not a mitzvah. Rabbi Elazar bar Tzadok says that it is a mitzvah. [We will soon explain the two sides in this dispute.] During the era of the Beis Hamikdash, they also brought the roasted korban Pesach at this time.”

We see that this Mishnah is of a relatively later date, after the Beis Hamikdash was destroyed and there was no longer a korban Pesach, and the two “cooked items” at the Seder are to remind us of the korban Pesach and the korban chagigah. This is interesting, because the very next Mishnah (Pesachim 116a) dates back to the era of the Beis Hamikdash, since its discussion of the four questions includes a question that assumes that there is a korban Pesach at the Seder: She’bechol haleilos anu ochlin basar shaluk, tzeli umevushal, halailah hazeh kulo tzeli, “On all other nights we eat meat that is either boiled, roasted or cooked; this night, we eat only roasted [meat].” Obviously, this Mishnah dates to the time of the Beis Hamikdash and refers to the eating of the roasted korbanos Pesach and chagigah. The Gemara (Pesachim 70a) explains that the text of this Mishnah follows the opinion of a tanna, Ben Teima, who contends that the korban chagigah eaten Pesach night at the time of the Beis Hamikdash was also required to be roasted. Thus, in his opinion, all meat eaten at the Seder was roasted.

The structure of this chapter of the Mishnah implies that there was an earlier edition of this Mishnah dating to the time of the Beis Hamikdash, and that when Rabbi Yehudah Hanasi edited it after the churban, he rewrote certain parts to accommodate the new reality, but he left other parts in their original format.

A mitzvah or a garnish?

We asked, above, whether charoses is a mitzvah on its own, or just a garnish to the maror. This appears to be the dispute between the Tanna Kamma and Rabbi Elazar bar Tzadok in the Mishnah that I quoted. Let us see the passage of the Gemara (116a) that examines this dispute: First, the Gemara devotes itself to explaining the opinion of the Tanna Kamma, asking: Since this tanna insists that there is no mitzvah in using charoses, why prepare it and serve it at the Seder? The Gemara answers that charoses is brought to the Seder because of kafa, which is some type of toxin. Rashi and Rabbeinu Chananel disagree as to what kafa is. According to Rashi, it is in the sap of the maror, whereas Rabbeinu Chananel explains it to be an insect that is in the maror.

Tosafos (Pesachim 115b s.v. Kafa), in explaining Rabbeinu Chananel’s approach to kafa, asks the following: If kafa is an insect, then eating lettuce any time should be prohibited, because of a kashrus concern. Tosafos answers that most of the time, maror does not contain kafa. Since it is rare for maror to contain kafa, there is no kashrus concern when eating lettuce or other maror vegetables that you may be eating non-kosher kafa. (There may be a concern that you will eat thrips, aphids, leaf miners or other insects, but that is not the topic for today’s article. I recommend that our concerned readers contact their rav, posek or local vaad hakashrus for direction.)

However, there is a general halachic ruling of chamira sakanta mei’isura (see Chullin 10a), we are required to be more careful about safety concerns than about prohibitions. In other words, although there is no kashrus concern about possibly consuming kafa, there is still a safety concern, and for this reason, we eat the maror with charoses, which will prevent the toxin in the kafa from harming anyone.

According to both Rashi and Rabbeinu Chananel, we are faced with a question: When lettuce is eaten as karpas, most poskim (with the exception of Rashi and Tosafos, 114a s.v. Metabeil), do not require that it be dipped in charoses. What happened to the concern about kafa? The same question can be asked regarding eating lettuce or the other species of maror at any other time of the year. The halacha does not require that we eat these species with charoses – why not? Since we rule that chamira sakanta mei’isura, shouldn’t we always be required to eat charoses with our lettuce?

Rabbeinu Yonah asks this question and provides the following observation: “All year long, we eat lettuce without charoses, without being concerned about the ill effects that kafa causes… We are concerned only when we fulfill the mitzvah of maror – then the chachamim were careful that this [mitzvah] should not cause any possibility of danger.” In other words, the danger of kafa is not significant enough for us to show concern. However, in the opinion of the Sages, we should be careful to not let a mitzvah act cause even the remotest possibility of danger, and therefore we should eat the maror of the mitzvah with charoses (quoted by Rosh, Pesachim 10:25).

Tasting the maror

When the lettuce is eaten as maror, and you dip it deep into the charoses, you can hardly taste the lettuce, and you certainly don’t notice any bitterness. Have you fulfilled the mitzvah of maror this way?

The Gemara (Pesachim 115b) quotes the following: “Rav Papa said, ‘Don’t leave the maror sitting in the charoses, out of concern that the acid of the spices will overwhelm the bitterness, and we require the taste of maror, which you will not have.”

How deep a dip?

How deep into the charoses am I to dip the maror?

The answer to this question, which involves a dispute among the poskim, depends on the following discussion in the Gemara.

How does charoses work? The Gemara (Pesachim 115b) quotes a dispute whether it is contact with the charoses that overcomes the kafa, or whether it is the fragrance of the charoses that does the job. The difference in practical halacha is whether it is required to submerge the maror into the charoses, or if it is sufficient to dip the maror into the charoses. This difference of opinion in the Gemara manifests itself in a dispute between the Shulchan Aruch (Orach Chayim 475:1) and the Pri Chodosh.

The Shulchan Aruch rules that the maror should be submerged in the charoses, but you should not leave the maror in the charoses for long, and you should shake off the charoses. The Pri Chodosh notes that the prevalent custom is to simply dip the maror into the charoses, and he explains why this is sufficient. Both of these approaches are in order that the taste of the charoses not overwhelm that of the maror. The Mishnah Berurah mentions the opinion of the Pri Chodosh that disagrees with the Shulchan Aruch, and the custom in most places accords with the Pri Chodosh.

Rabbi Elazar bar Tzadok

Until this point, we have been explaining the position of the Tanna Kamma. The Mishnah (Pesachim 114a) quotes Rabbi Elazar bar Tzadok as saying that charoses is a mitzvah. The Gemara (ad locum 116a) asks, “What is the mitzvah? Rabbi Levi said, ‘In commemoration of the tapuach [usually translated as “apple” or “apple tree”].’ Rabbi Yochanan said, ‘To remember the clay [from which the bricks were baked in Mitzrayim].’”

Rashi explains the opinion of Rabbi Levi by quoting the verse in Shir Hashirim (8:5), tachas hatapuach o’rar’tich, “I roused you under the tapuach,” and the Midrash that the Jewish women encouraged their disheartened husbands to continue with married life, and thereby succeeded in creating the large Jewish nation that left Mitzrayim.

To quote the passage of Gemara that retells this miracle, “Because of the merit of the righteous women of that generation, Yisroel was redeemed from Egypt. When they went to draw water, Hashem prepared small fish in their buckets, such that what they drew was half water and half fish. The women then took two pots, one of hot water and one of cooked fish, and went to their husbands in the field. They washed their husbands, anointed them, fed them and gave them to drink… When the women became pregnant, they returned home. When it came time for them to give birth, they went out to the fields and gave birth under the tapuach, as the posuk says, ‘I roused you under the tapuach.’ Hashem sent from his upper heavens someone to make the children good-looking… When the Egyptians realized what had happened, they came to kill them [the Jewish women and the babies], but they were miraculously absorbed into the earth. At that point, they [the Jewish men] brought oxen who plowed above them” (Sotah 11b).

The Gemara in Pesachim, germane to the discussion about the charoses, continues: “Abaya said, ‘Therefore, you should make the charoses acidic [by adding apples, other fruits or vinegar], to remember the miracle of tapuach, and you should thicken the charoses, similar to the way clay functions.’ We found a beraisa supporting Rabbi Yochanan’s opinion [that charoses should contain spices] as a commemoration of the straw, and that the charoses should be ground up well, to commemorate the clay. Rabbi Elazar bar Tzadok said: ‘The merchants of Yerushalayim used to advertise from the windows of their stores, “Come and purchase spices for the mitzvah.”’”

There is also a passage of Talmud Yerushalmi that states that the charoses should be of a thin consistency, so that it reminds us of makas dam.

Charoses recipe

What types of spices should be included in the charoses? The Rif and the Rosh both mention that charoses should contain spices such as cinnamon and ginger. This is in accordance with the description of Rabbi Yochanan, that it should have spices that have a physical appearance somewhat similar to that of straw.

The Rambam (Hilchos Chometz Umatzoh 7:11) adds to the recipe that it should include something like mashed dates, mashed dried figs or mashed raisins.

What is the dispute?

Above, I quoted the dispute between the Tanna Kamma and Rabbi Elazar bar Tzadok whether charoses is a mitzvah or not. What practical application results from this dispute?

It seems from the discussion in the Gemara that the two tanna’im disagree regarding the recipe that we should use for charoses. According to the Tanna Kamma, the requirement is that charoses contain some ingredient that will mitigate the toxicity of the kafa. However, Rabbi Elazar bar Tzadok rules that it should contain something acidic, like wine, apples or vinegar, and spices that bear a physical resemblance to straw; and that it should have a consistency that reminds us of clay. And, according to the Yerushalmi, the final product should have the viscosity of a thick liquid.

The position of the Rambam on this topic seems to have changed from what he held initially. In his commentary on the Mishnah, the Rambam seems to understand that the dispute between the Tanna Kamma and Rabbi Elazar bar Tzadok is that, according to Rabbi Elazar bar Tzadok, charoses is a mitzvah on the night of the Seder that requires the recital of a brocha prior to eating it, whereas according to the Tanna Kamma charoses in not a mitzvah and does not require a brocha. The Rambam writes that the halacha is not like Rabbi Elazar bar Tzadok. However, in the Mishneh Torah the Rambam seems to have had a change of opinion, as he rules that charoses is a mitzvah (Lechem Mishneh). He also seems to understand that the dispute between the Tanna Kamma and Rabbi Elazar bar Tzadok is as explained above, regarding which ingredients are required in the charoses (see Magid Mishnah, Hilchos Chometz Umatzoh 7:11).

Dip the matzoh in charoses?

There is also another interesting dispute among the very early poskim. Most people today have the custom that when they eat the matzoh the first night of Pesach to fulfill the mitzvah, they do not dip the matzoh in salt or anything else. There are some who dip it in salt. However, several very early authorities, including Rav Amram Gaon, Rabbeinu Yosef, Rashi, Rabbeinu Shmayah (quoted by Tosafos, Pesachim 114a s.v. Metabeil) and the Rambam rule that when eating the very first matzoh, you should dip the matzoh into charoses! What is the Talmudic source for this ruling?

Some explain that when the Mishnah states that you should bring out the charoses together with the matzoh, it is implying that just as we dip our hamotzi into salt or something similar the rest of the year, at the Seder the matzoh should also be dipped into something to make it tastier – in this case, charoses.

Others explain that Rav Amram and the Rambam understood that this is part of the machlokes between the Tanna Kamma and Rabbi Elazar bar Tzadok.

Only lettuce!

At this point, let us explain the third of our opening questions: “What do you serve for karpas, if you realize that the only vegetable you have in the house is the lettuce you were planning to use for maror?”

This situation is found in the following Mishnah (Pesachim 114a), which describes someone who had only one vegetable available for the Seder: the lettuce that he will be using for the mitzvah of eating maror. Since this is his only vegetable, it will have to serve also as his karpas.  The Mishnah says, “They brought in front of him and he dips the lettuce, prior to the lettuce that he will be eating after the matzoh.” There is a dispute between Rashi and his grandson, the Rashbam, as to how he dipped this lettuce. Rashi explains that he dips it into the charoses, presumably for the same reasons why the maror is dipped into the charoses. According to the Rashbam, when the lettuce is eaten for karpas, it is not dipped into the charoses, but into something else. Most of us are familiar with a custom of dipping the karpas into saltwater. I have also seen references to customs of dipping the karpas into vinegar or wine. The Rashbam’s opinion is that, notwithstanding that lettuce will also be used for maror, when being used as karpas, it is treated like karpas and dipped into something other than charoses.

The Gemara (114b) raises a question here: If for karpas you are eating lettuce, with which you can fulfill the mitzvah of maror, when do you recite the brocha of al achilas maror? How can you recite this brocha later, after you have already eaten maror? The Gemara concludes that you do not fulfill the mitzvah of maror when you eat the lettuce as karpas, a concept called mitzvos tzerichos kavanah, fulfilling a mitzvah requires that you have in mind to perform it (Tosafos ad locum).

Still, although the rule is that mitzvos tzerichos kavanah, there is a dispute as to when you recite the brocha of al achilas maror. Rav Huna rules that you recite it prior to eating the lettuce for maror, whereas Rav Chisda rules that you recite it prior to eating the lettuce for karpas, even though the main mitzvah of eating maror will be fulfilled later. The Gemara then describes how later amora’im ruled, some following Rav Huna and others Rav Chisda. The Gemara concludes that the halacha follows Rav Chisda. Despite this conclusion, an amora, Rav Acha the son of Rava, went out of his way to make sure that he had other vegetables in the house, so that he could avoid the entire question by serving something else for karpas.

Conclusion

The Seder is a very special time for us to transmit our mesorah and some of the most basic of our Jewish beliefs to our children and future generations. Chazal added to the beautiful Torah mitzvos of hagadah, matzoh, and maror many other mitzvos that broaden the entire experience. We should also note the Gemara (Avodah Zarah 35a) that teaches that the rabbinic laws are dearer than the Torah laws, since they demonstrate how much the Jewish people, as a nation, value our special relationship with Hashem.

Question #1: Korban Todah or Bensching Gomeil?

“Which is the better way to thank Hashem for a personal salvation, by reciting birchas hagomeil, or by offering a korban todah?”

Question #2: The Breadwinner!

“Why is the korban todah accompanied by so many loaves of bread and so much matzoh?”

Question #3: Mizmor Lesodah and Pesach

“I recently assumed a position teaching in a small-town day school. Before Pesach, I mentioned that we do not recite Mizmor Lesodah on Erev and Chol Hamoed Pesach. One of the students afterwards told me that this is not his family minhag, but only Ashkenazi practice. Is he correct?”

Answer:

Although Chapter 100 of Tehillim is known by its opening words as Mizmor Lesodah, there actually are two different chapters of Tehillim, #100 and #107, that devote themselves to the thanksgiving acknowledgement of someone who has survived a major physical challenge. In Psalm 107, Dovid Hamelech describes four different types of treacherous predicaments — traveling through the desert, traveling overseas, illness, and imprisonment — in which a person would pray to Hashem for salvation. When the person survives the travails and thanks Hashem, this thanks is reflected in the passage , Yodu lashem chasdo venifle’osav livnei adam, “they acknowledge thanks to Hashem for His kindness and His wondrous deeds for mankind.”These words are repeated four times, once after each of the four situations is described.

The Gemara cites this Psalm as the source for many of the laws of birchas hagomeil, the brocha we recite when surviving these calamities. To quote the Gemara: Four people need to acknowledge thanks to Hashem.

Actually, someone who survived these predicaments should offer a korban todah, which is described in parshas Tzav. The birchas hagomeil is recited in place of the korban todah that we cannot bring, since, unfortunately, our Beis Hamikdash lies in ruin (Rosh, Brachos 9:3; Tur, Orach Chayim 219).

What are the unusual features of the korban todah?

The korban todah is a specialized variety of shelamim, whose name means, according to the Toras Kohanim, that it creates peace in the world, since the owner, the kohen and the mizbeiach (the altar) all share in consuming it (quoted by Rashi, Vayikra 3:1). A shelamim, which was perhaps the most common korban in the Beis Hamikdash, was offered to express the desire to draw closer to Hashem from a sense that he lacks nothing in his physical life (see Commentary of Rav Hirsch, Vayikra 3:1).

The korban todah is offered following the general procedures and rules of a shelamim; however, it has several unique features. The first is that the korban is accompanied by a huge amount of bread, called korbanos mincha (plural, menachos), a total of forty loaves. Thirty of these comprise ten loaves each of three varieties of matzoh. However, the remaining ten loaves are highly unusual: first of all they are chometz, and this is the only instance of a private korban that includes chometz. (There is only one other korban that is chometz, and that is the two loaves offered by the community on Shavuos.) As a result, the korban todah could not be offered on Erev Pesach or on Pesach itself.

The chometz loaves are unusual in another way, in that each of them is three times the volume of the matzoh loaves (see Menachos 76b). Thus, the ten chometz loaves were, together, of equal size to the thirty matzohs.

Of the four varieties of mincha that accompany the korban todah, one of each type of loaf is given to the kohen to take home and consume together with his family and friends. The other 36 loaves are given to the offerer of the korban.

There is another unusual facet of the korban todah offering. Whereas a korban shelamim may be eaten until nightfall of the next day after it is offered, the korban todah must be eaten before the morning after it was offered, a much shorter period of time. Chazal further shortened the time it may be eaten — permitting it to be eaten only until halachic midnight — to assure that no one eat the korban when it is forbidden to do so.

Thus, there are three ways in which the korban todah is treated differently from an ordinary shelamim: 1) the todah is accompanied by an absolutely huge amount of bread, made from a total of twenty isronim of flour, which is twenty times the amount of flour that requires one to separate challah; 2) half of this bread is chometz and half matzoh; and 3) the korban and its bread must be consumed within a very short period of time.

Why would the Torah “impose” these additional requirements on the offerer of the korban? Well, let us figure out what is he going to do. He has a significant amount of holy meat that must be eaten by midnight, and a huge amount of accompanying bread with the same restrictions. What will he do?

Presumably, he will invite a large crowd to join him in his feast and will thereby explain to them the reason for his repast. Thus, we increase the appreciation of others forthe salvation that Hashem has provided him, which is the cause of this thanksgiving. This now leads us directly into our discussion of the chapter of Tehillim that begins with the words Mizmor Lesodah.

Mizmor Lesodah

Whereas the above-mentioned Chapter 107 of Tehillim describes the background behind korban todah and birchas hagomeil, the 100^th chapter of Tehillim, Mizmor Lesodah, is a sample praise that the saved person recites. Although only five verses long, this psalm, one of the eleven written by Moshe Rabbeinu (see Rashi ad locum), captivates the emotion of a person who has just survived a major ordeal. The first verse expresses the need for everyone on Earth to recognize Hashem, certainly something that conveys the emotions of someone very recently saved from a major tribulation. The second verse shares the same passion, since it calls upon everyone to serve Hashem in gladness and to appear before Him in jubilation. The third sentence continues this idea. In it, the thankful person calls on everyone to recognize that Hashem is the personal G-d of every individual, that we are His people and the sheep of his pasture. He then calls on all to enter into Hashem’s gates and His courts, so that we can thank and bless Him. We should note that the gates of the Beis Hamikdash were meant for all of mankind, not only the Jewish people, as mankind is specifically included in Shlomoh Hamelech’s prayer while inaugurating the Beis Hamikdash (Melachim I 8:41-43).

The closing sentence of Mizmor Lesodah is also very significant: “For Hashem is good, His kindness is forever, and our trust should be placed in Him in every future generation.” (We should note that the word olam in Tanach means “forever” and never means “world,” which is a meaning given to this word by Chazal. The most common Tanach word for “world” is teiveil; see, for example, Tehillim 19:5; 33:8; and 90:2 — all of which are recited during the Pesukei Dezimra of Shabbos and 96:10, 13; 97:4; 98:7, which are part of kabbalas Shabbos.) The celebrant calls upon those he has assembled to spread the message that Hashem is the only Source of all good, and that we should recognize this at all times, not only in the extraordinary situations where we see the manifestation of His presence!

We can now understand better why the Mizmor Lesodah chapter of Tehillim is structured as it is. It provides the beneficiary of Hashem’s miracle with a drosha to present at the seudas hodaah that he makes with all the bread and meat that he does not want to go to waste — complete with encouragement to others to internalize our thanks to Hashem.

Clearly, then, this psalm was meant to be recited by the thankful person prior to offering his korban, and this is his invitation to others to join him as he thanks Hashem. The Avudraham notes thatHashem’s name appears four times in the psalm, corresponding to the four people who need to thank Him for their salvation.

Mizmor Lesodah on Shabbos

We find a dispute among early authorities whether one should recite Mizmor Lesodah on Shabbos (Shibbolei Haleket, quoted by Beis Yosef, Orach Chayim 281). Why should this be?

Since the korban todah is a voluntary offering, it cannot be offered on Shabbos. The Tur mentions that established custom is to omit Mizmor Lesodah on Shabbos and Yom Tov, out of concern that when the Beis Hamikdash is rebuilt, someone may mistakenly offer the korban todah on these days. On Shabbos, of course, it is prohibited to offer any korban other than the required daily tamid and the special Shabbos korbanos, whereas on Yom Tov one may offer only voluntary korbanos that are brought because of the Yom Tov (Beitzah 19b).

The Tur does not agree that this is a valid reason to omit reciting Mizmor Lesodah on these days, contending that we need not be concerned that people will mistakenly offer a korban todah on Shabbos or Yom Tov (Orach Chayim, Chapter 51 and Chapter 281). Others explain that we recite Mizmor Lesodah to remind us of the korban todah, and since it was not offered on these days, there is no point in reciting it (see Pri Megadim, Eishel Avraham 51:11). Perhaps this is done as an aspect of u’neshalma parim sefaseinu (Hoshea 14:3), “may our lips replace the bulls (of offerings),” which is interpreted to mean that when we have no Beis Hamikdash, we recite passages that commemorate those offerings. For this reason, the custom developed among Ashkenazim to omit Mizmor Lesodah on days that the offering could not be brought in the Beis Hamikdash.

Mizmor Lesodah on Chol Hamoed Pesach

For the same reason that Mizmor Lesodah is omitted on Shabbos, Ashkenazim omit reciting it on Chol Hamoed Pesach. Since the korban todah contained chometz, it could not be offered on Pesach; therefore Ashkenazim refrain from saying Mizmor Lesodah.

Mizmor Lesodah on Erev Pesach

Ashkenazic custom is to omit Mizmor Lesodah on Erev Yom Kippur and on Erev Pesach. The korban todah and its breads can usually be eaten until the midnight after the day it was offered. However, were one to offer a korban todah early on Erev Yom Kippur or on Erev Pesach, one would be restricted to eating its chometz for only a few hours. Since one may not offer a korban whose time limit is curtailed, one may not offer a korban todah on these days, and, following Ashkenazic practice, Mizmor Lesodah is omitted then, also. The common custom among Sefardim is to recite Mizmor Lesodah on Erev Yom Kippur, Erev Pesach and Chol Hamoed Pesach (Pri Chodosh 429:2; Kaf Hachayim 51:51-52).

With this background, I can now return to the third question raised above.

“I recently assumed a position teaching in a small town day school. Before Pesach, I mentioned that we do not recite Mizmor Lesodah on Erev and Chol Hamoed Pesach. One of the students afterwards told me that this is not his family minhag, but only Ashkenazi practice. Is he correct?”

Indeed, in this instance, the student is correct. Hopefully, the rebbe was not that badly embarrassed.

Mizmor Lesodah and our daily davening

In order to make sure that this thanks to Hashem takes place daily, the chapter of Mizmor Lesodah was introduced into our daily pesukei dezimra. We should remember that miracles happen to us daily, even when we do not realize it (quoted in name of Sefer Nehora; see also Beis Yosef, Orach Chayim 281). Although Mizmor Lesodah was not part of the original structure of the daily prayers established by the Anshei Keneses Hagedolah, long before the time of the Rishonim, it was already common practice to include it as part of the daily recital of pesukei dezimra and to say it almost at the beginning. The importance of reciting this psalm should not be underestimated. The Shulchan Aruch (Orach Chayim 51:9), states: One should recite Mizmor Lesodah with song, since eventually all songs will cease, except for Mizmor Lesodah. This statement of Chazal is explained by Rav Hirsch (Commentary to Psalm 100) in the following manner: One day in the future, everything on Earth will be so ideal that there will be no reason to supplicate Hashem for changes. Even then, prayers of gratitude and thanksgiving will still be appropriate.

Question #1: Snail Mail

I mailed some hamantashen to a non-frum relative, well before Purim, as a “kiruv” gesture of friendship. The efficient post office has not yet delivered it. I am concerned that (1) as a result, my relative may eat chometz on Pesach; (2) I will be in violation of owning chometz on Pesach.

Question #2: Moonshine in the First Month!

The police confiscated some contraband moonshine in the beginning of April, issuing a criminal citation for the violation. Subsequently, the criminal charges were dropped. On Pesach, the police appeared at the door of the moonshine vendor to return the liquor, who told them that he could not receive the merchandise on his Jewish holiday. They came back to return it after Pesach. May he sell the liquor?

Question #3: Whiskey She’avar Alav haPesach

A non-Jewish business contact was shipped a gift of expensive whiskey, which never arrived. Instead, the shipping company returned it to the Jewish sender, and it arrived shortly after Pesach. Is this prohibited because of chometz she’avar alav haPesach?

Foreword

The above questions are all based on responsa in prominent late poskim, specifically, Rav Moshe Feinstein, Rav Meir Arik, and the Sochatchover, Rav Avraham Bornstein, often referred to by the names of his most famous two seforim, the Avnei Neizer and the Eglei Tal. Each of our openings questions relates to a serious halachic shaylah involving two different issues:

(1) A legal circumstance referred to as shelo ve’eino birshuso,which means property that you own but is not under your control (Bava Kama 68b-70a and many other places).

(2) The specific ramifications that shelo ve’eino birshuso has regarding owning chometz on Pesach.

Shelo ve’eino birshuso

The concept of shelo ve’eino birshuso translates, literally, as “your property, but not in your jurisdiction.” The Gemara explains that when an item is stolen, neither the original owner nor the thief has the halachic ability to declare the stolen property as hekdesh, the property of the Beis Hamikdash, as long as the original owner has not lost hope that he might retrieve it. The thief cannot make it hekdesh, because it is not his property, and only an owner can declare an item hekdesh. But the original owner, also, cannot make it hekdesh, because it is outside his control, and only an item within your control can be declared hekdesh. Thus, the stolen item flounders in a twilight zone, in which no one has full legal control over it – it is in a no man’s land.

More important for our purposes, just as neither the thief nor the owner can declare the item hekdesh, they also cannot sell it. This creates an intriguing conundrum, when we need to make sure that no Jew owns chometz on Pesach. The owner certainly does not want to own chometz on Pesach and would like to include it with the chometz that he sells to a non-Jew, if he can. A self-respecting Jewish thief may, also, not want to violate bal yeira’eh and bal yimatzei. He may be a gonif, and his gelt is earned in a non-kosher way, but he wouldn’t dream of owning chometz on Pesach! So, what does he do with the cases of Chivas Regal that he lifted and for which he has not yet found a fence? (For some interesting reason, in all of the teshuvos I found, the question was asked by the original owner, and not from the perspective of the thief! Maybe thieves are reticent to ask their shaylos from prominent rabbonim?)

Introduction

The Torah prohibits a Jew from owning chometz on Pesach. This is included in the two lo sa’aseh proscriptions of bal yeira’eh and bal yimatzei, one of which prohibits a Jew from owning chometz that may be seen, but does not prohibit owning buried chometz that cannot be seen; and the other prohibits owning chometz, even when it has been buried. In other words, owning buried chometz violates one lo sa’aseh, that of bal yimatzei; owning unburied chometz violates two lo sa’aseh, bal yeira’eh and bal yimatzei. Because of this distinction, the Rambam counts bal yeira’eh and bal yimatzei as two separate lo sa’aseh prohibitions among the 365 lo sa’aseh mitzvos of the Torah. Most authorities contend that these two prohibitions apply both to chometz gamur (pure chometz) and to ta’aroves chometz (chometz mixed into another product). (See, however, the opinion of Rabbeinu Tam, quoted in Tosafos, Pesachim 42a s.v. ve’eilu.)

To enforce these Torah mitzvos, Chazal penalized a Jew who owned chometz during Pesach by barring benefiting from it. Chometz prohibited because of this penalty is called chometz she’avar alav haPesach.

Tashbisu

There is also a positive mitzvah to destroy chometz, tashbisu, which requires a Jew to rid himself of his chometz before Pesach. Since the Torah uses an unusual term, tashbisu, the rishonim explain that there are actually two ways to avoid violating bal yeira’eh and bal yimatzei, and both involve the mitzvah of tashbisu.

Biur chometz: One is by physically destroying the chometz, either by burning it or disposing of in a different, equally effective way (Mishnah, Pesachim 21a and numerous places in the Gemara).

Bitul chometz: Alternatively, I can rid myself of owning my chometz by making a declaration of bitul, which states that I view all chometz in my possession to be like dust of the earth. This declaration, assuming that it is sincere, removes the chometz from my ownership, so that I do not violate bal yeira’eh and bal yimatzei.

The preceding analysis reflects the halacha as explained by Targum Onkelos, Rashi, the Ran and many other rishonim. There is an alternative approach, that of Tosafos, who explains that bitul chometz is declaring the chometz to be ownerless, hefker. According to either approach, someone who performed bitul chometz and does not want to own their chometz will not violate the prohibitions of bal yeira’eh and bal yimatzei. However, for reasons beyond the scope of this article, the halachic conclusion is that the penalty of chometz she’avar alav haPesach applies to chometz on which someone performed bitul, but not to chometz that was properly sold to a non-Jew.

Selling chometz

Although a Jew may not own chometz on Pesach, there is nothing wrong with selling chometz to a non-Jew before it becomes prohibited. In contemporary times, people usually do not undertake to sell their chometz themselves, but, instead, appoint a rav to sell the chometz for them. The reason for this is that the non-Jew does not take the chometz with him; he leaves it in our houses. Since this may have the appearance of a charade, the sale must be performed in a way that halacha recognizes as valid. Since the laws of selling are very complicated, it is better that a lay person not handle the arrangements for mechiras chometz by himself, which is why it is common to use a rav as one’s agent to sell the chometz.

Snail mail

At this point, we are prepared to discuss the halachic background to our opening question. Rav Moshe Feinstein discusses the following case: Someone wants to ship several products, including some chometz items, to a relative in Eretz Yisroel, and wants to include this chometz with his standard mechiras chometz that he does before Pesach. The rav who sent Rav Moshe the shaylah felt that there may be legitimate halachic grounds to do this, but Rav Moshe proves that such a sale cannot be done. This is because once the chometz is delivered to or picked up by the shipping company, the chometz is beyond the owner’s jurisdiction (shelo ve’eino birshuso), and there is no simple way to regain control over it. Even should the package be refused by the receiving party and returned to the sender, until and unless that happens and the item is indeed returned, it is eino birshuso.

Moonshine in Nissan!

The next shaylah is discussed by the Av Beis Din of Sochatchov (1839-1910), known as the first Sochatchover rebbe, whose halachic works are used by all talmidei chachamim. He was the son-in-law of Rav Menahem Mendel of Kotsk (known by all, very simply, as “The Kotzker”). The Sochatchover was a highly respected gaon in learning when he married the daughter of the Kotzker, even though he had just turned bar mitzvah!

To review the case: the police confiscated some contraband moonshine in the beginning of April, issuing a criminal citation for the violation. Subsequently, the criminal charges were dropped. On Pesach, the police appeared at the door of the moonshine vendor to return the liquor, who told them that he could not receive the merchandise on his Jewish holiday. They came back to return it after Pesach. May he sell the liquor?

It is interesting to read the actual shaylah as it appears in the teshuvos of the Sochatchover, from which we can appreciate the mesiras nefesh of the Jew involved. In czarist Russia, where this case occurred, the whiskey business was a government monopoly, and the czar and his agents did not take kindly to those who ignored this, particularly if they were Jews. The czar’s police investigated this Jew’s premises, and located both legal, government distilled liquor and privately made product, moonshine. All the liquor was confiscated, and the accused knew that his future as a client of the czar’s legal and penal system was far from envious. However, with great difficulty, much mazel, and an appropriate transfer of rubles, the police concluded that they had not discovered anything. The vendor assumed that the police had utilized the contraband or sold it, for some additional profit on their part of the venture.

Surprise of surprises: During Pesach, the cops showed up on his doorstep with the schnapps, insisting that if they held onto it any longer, they would be forced to reopen the “protocol” against the vendor. In my opinion, this would qualify as pikuach nefesh, a life-threatening emergency, permitting him to receive the chometz, and then immediately destroy it in honor of Pesach, thus fulfilling the mitzvah of tashbisu in an extremely exemplary fashion. (Note that, according to Tosafos, Pesachim, 29b s.v. Rav, there is no violation of bal yeira’eh and bal yimatzei in this situation.) This worthy Jew did not ask me a shaylah, but simply told the czar’s finest that he could not receive the chometz during the holiday.

To complete our surprise, after Pesach, the police returned with the chometz. The vendor then asked his local rav, Rav Chanoch, whether the chometz was prohibited as chometz she’avar alav haPesach. Although the vendor had indeed sold all his chometz before Pesach, it qualified as eino birshuso, and he could not halachically sell it; and, now, it may be prohibited as chometz she’avar alav haPesach.

The Sochatchover contends that the whiskey is not prohibited as chometz she’avar alav haPesach, because of the following reasons:

The Sochatchover weighs whether, according to halacha, the vendor owns the chometz in a way that he can still sell it. If, indeed, it is still considered to be his chometz, it was sold. However, we previously demonstrated that this is not true, because of the principle of shelo ve’eino birshuso. The Sochatchover quotes the opinion of the Maharam and the Rosh, quoted by the Shitah Mekubetzes, Bava Kama 33a, that when the property is returned to the owner, the hekdesh that he declared will take effect. (Note that many authorities do not agree with this conclusion, including Tosafos s.v ika and Penei Yehoshua ad loc.; Nachal Yitzchak, end of chapter 73.) Similarly, rules the Sochatchover, should the gift not take place and the chometz return to his hands, it is considered to have been under his control the entire time, and is included in the sale retroactively.

On the other hand, if we assume that having the whiskey confiscated is a reason why he cannot sell it, he also did not violate bal yeira’eh and bal yimatzei, since the chometz was not his during the entire Pesach period. Rav Chanoch, the rav who sent the Sochatchover the question, noted that, according to Russian law of the time, when the police seized the contraband, it automatically became property of the czar. Since none of the czars were ever Jewish, this also means that it is not chometz she’avar alav haPesach. When the vendor received the liquor after Pesach, it was a new acquisition of chometz that had been owned by non-Jews over Pesach. As a result, no prohibition of chometz she’avar alav haPesach applies to this whiskey (Shu’t Avnei Neizer, Orach Chayim #339).

Whiskey she’avar alav haPesach

At this point, let us discuss the last of our opening questions: “A non-Jewish business contact was shipped a gift of expensive whiskey, which never reached him. Instead, the shipper returned it to the Jewish sender, and it arrived shortly after Pesach. Is this prohibited because of chometz she’avar alav haPesach?”

This question is based on a case discussed in Shu’t Imrei Yosher (1:32), authored by Rav Meir Arik (1855–1925), who was viewed as the posek hador of his era in Galicia. Among his most famous talmidim were Rav Meir Shapiro, Rav Reuven Margolies (author of Margoliyos Hayam on Sanhedrin and many other seforim), and Rav Zev Wolf Leiter, who later was the av beis din of Pittsburgh. The situation which the Imrei Yosher discusses was when a Jew sent a barrel of local spirits, by train, to a government official. The barrel, indeed, arrived before Pesach, but the official refused to accept it, so it was shipped back, arriving at the Jew’s house after Pesach. At this point, the Jew sees himself a loser on both scores – he did not successfully curry any favor with the official, and he is also out of the expensive barrel of liquor, which he fears is prohibited as chometz she’avar alav haPesach because he did not sell it.

Rav Arik discusses several possible angles whereby the chometz might be permitted. First of all, he notes that, in their day in Russia, the primary ingredient in the mash that was fermented and distilled was potatoes, which are not chometz. However, all whiskey had a small amount of barley malt added, which is chometz. Nevertheless, the liquor manufactured this way was predominantly not chometz, and would have a status of chometz only miderabbanan, since the percentage of chometz in the final product is below the threshold to qualify as ta’aroves chometz min haTorah. Thus, the questioner did not violate bal yeira’eh and bal yimatzei min haTorah.

A second reason to permit this liquor is that the owner had fulfilled bitul chometz before Pesach, in which he declared all of his chometz null, void and ownerless. In this instance, he would not have violated bal yeira’eh and bal yimatzei, even without the bitul, and, therefore, it may be possible to permit the liquor.

This heter is not obvious, for two reasons:

The Shulchan Aruch rules that you cannot rely on bitul to permit chometz she’avar alav haPesach (Orach Chayim 448:5).

Some authorities reject relying on bitul when the owner would certainly have sold the chometz, rather than trash it.

The conclusion of the Imrei Yosher is that a Jew should not drink this liquor after Pesach, but that the owner can sell the liquor to a non-Jew for a price that subtracts the amount of chometz-malt in the finished product. If this is done, the Jew is neither drinking nor benefiting from the chometz. (He discusses concerns that the non-Jew may sell it, afterward, to a Jew who is not permitted to drink it, and suggests a couple of ways to make sure that this does not happen.)

I will share with you one last case, which happened to friends of mine. They had shipped their belongings on a lift while making aliyah, and realized that they had included chometz on their lift. The question was whether they could include the chometz in the sale that they made. This case is different from all those we have discussed because, although they have no access to the chometz at the moment, it is being shipped to themselves. The question is whether this qualifies as birshuso. They received a psak that it was permitted for them to do so, although I do not know who ruled this way and certainly recommend anyone with a similar shaylah ask his own rav or posek.

Conclusion

According to kabbalah, searching for chometz is symbolic of searching, internally, to locate and remove our own arrogant selves. As we go through the mitzvos of cleaning the house, searching, burning, and selling the chometz, we should also try to focus on the spiritual side of this search-and-destroy mission.