Blended and Synthetic Tzitzis

According to Chazal, as reward for Avraham turning down the king of Sodom’s offer, and declining to take even a chut, a thread, his descendants were rewarded with the mitzvah of tzitzis.

Question #1: Silk Talis

“I grew up in a conservative home, and, prior to my bar mitzvah, I was given a ‘bar mitzvah set,’ which included tefillin and a silk talis. I have since discovered that the tefillin were completely non-kosher. Must I assume that there is a problem with the talis also, since it is made from silk?”

Question #2: Prefers Rayon

“What is the basis of the halachic controversy whether one may have a talis koton made of rayon?”

Question #3: Blended Tzitzis

“I have a talis koton that says that it is made of a cotton-polyester blend. Do I recite a brocha when I put it on?”

Answer

Twice each day, we recite the passage that obligates Jewish men to tie tzitzis to the four corners of their garments. The Torah states (Bamidbar 15:38): Dabeir el benei Yisrael ve’amarta aleihem ve’asu lahem tzitzis al kanfei vigdeihem, Speak to the children of Israel and say to them that they should make tzitzis on the corners of their garments.

The topic for today’s discussion is: What type of material are we obligated to use in the mitzvah of tzitzis? Do the corners of all garments require one to place tzitzis? As we will see, the question involves both an issue of Torah law and of rabbinic law.

Only wool or linen?

The Gemara (Menachos 39b) records an early dispute whether the Torah’s mitzvah of tzitzis applies only to garments made of sheep’s wool or of linen. According to Rav Nachman, a four-cornered garment made of silk, cotton, or any other material that is neither sheep’s wool nor linen is not included, min hatorah, in the mitzvah of tzitzis. (For the balance of this article, “wool” will mean specifically wool of sheep. The word tzemer in the Torah means the wool of sheep. Therefore, a blend of linen and wool processed from camels, llamas, rabbits, goats [such as cashmere or mohair] or other animals is not shatnez min hatorah [Kelayim 9:1]. A garment made of a woolen blend containing no sheep’s wool is shatnez only because of rabbinic injunction.) According to Rav Nachman, there is a requirement to attach tzitzis to four-cornered garments made from other cloth, but it is only miderabbanan, so that people should be careful to wear tzitzis (Rambam, Hilchos Tzitzis 3:2).

All fibers are min hatorah

Rav Yehudah and Rava disagree with Rav Nachman, contending that, min hatorah, silk and all other fibers are obligated in mitzvas tzitzis (Menachos 39b). The Gemara notes that this dispute originates among the tanna’im, and that the dispute also affects whether other materials, such as silk, cashmere and mohair, are subject to the tumah of nega’im. According to Rav Nachman and the tanna with whom he sides, the telltale red or green blemishes of tzaraas only make garments made of either wool or linen tamei. Should a garment made of silk, cotton, cashmere, mohair, or other cloth display inexplicable red or green blemishes reminiscent of tzaraas, the garment remains tahor, since these materials are not susceptible to nega’im. However, according to Rav Yehudah and Rava, silk, cotton and other cloth are susceptible to the laws of tzaraas.

What is the halachah?

The Rambam (Hilchos Tzitzis 3:1,2) and the Shulchan Aruch (Orach Chayim 9:1) rule that only linen and wool require tzitzis min hatorah, and the Rambam (Hilchos Tumas Tzaraas 13:1,3) rules that only cloth made of linen and wool are affected by the laws of tzaraas. On the other hand, other authorities rule that all materials require tzitzis min hatorah, and this is the way the Rema rules (Orach Chayim 9:1). (These authorities would also hold that all garments are susceptible to tumas nega’im, but they do not discuss the laws of tumah and taharah because, unfortunately, they are not germane in our day.)

Is there any difference in halachah? After all, both approaches rule that one is required to put tzitzis on four-cornered garments made of cotton, silk or cashmere. What difference does it make whether the garment is obligated in the mitzvah min hatorah or miderabbanan?

There can be several practical differences that result. The most obvious is that, since it is exemplary for someone to fulfill a mitzvah min hatorah when he can, is it preferable to wear a garment made of wool over one made of cotton. For this reason, Rav Moshe Feinstein rules that one should wear a talis koton made of wool, even though it is more comfortable to wear a cotton talis koton in the summer, since one who wears a woolen talis koton thereby fulfills a mitzvah min hatorah, according to all opinions (Shu”t Igros Moshe, Orach Chayim 2:1). On the other hand, other prominent authorities followed the approach of the Rema, contending that an Ashkenazi who is uncomfortable wearing woolen tzitzis in the summer may wear a talis koton made of cotton.

Silk talis

At this point, we can address the first question asked above: “I grew up in a conservative home, and, prior to my bar mitzvah, I was given a ‘bar mitzvah set,’ which included tefillin and a silk talis. I have since discovered that the tefillin were completely non-kosher. Must I assume that there is a problem with the talis also, since it is made of silk?”

The answer is that the fact that the garment or its tzitzis are made from silk does not present any halachic problem. However, there is another potential concern:.

Special strings

The tzitzis threads must be spun with the intent that they will be used to fulfill the mitzvah of tzitzis. After completing the spinning, one takes several of these specially-spun threads and twists them together into a thicker string. This twisting is also performed lishmah. The authorities dispute whether attaching the tzitzis strings to the garment and tying them must also be performed lishmah. In practice we are stringent (Shulchan Aruch, Orach Chayim 14:2 and commentaries).

Many authorities contend that, when manufacturing an item lishmah, one must articulate this intent (Rosh, Hilchos Sefer Torah Chapter 3). This means that the person spinning or twisting the tzitzis must say that he is doing so in order to make tzitzis for the sake of the mitzvah (Shulchan Aruch, Orach Chayim 11:1 and Mishnah Berurah, ad locum).

The concern about the silk talis koton, then, is that we need to determine that the tzitzis tied to them were indeed made properly lishmah.

Polyester, rayon or nylon?

At this point, we can discuss whether the mitzvah of tzitzis applies to synthetic materials. Within the last century, mankind has successfully developed numerous fabrics that are lighter than cotton, and which some people find more comfortable to wear. The question is whether a four-cornered garment made from these materials is obligated in the mitzvah of tzitzis. Obviously, according to those who hold that only wool and linen are obligated in tzitzis min hatorah, these garments are not obligated min hatorah, and the question is whether there is an obligation miderabbanan. According to the Rema, who rules that all materials are obligated in tzitzis, the question might even be whether rayon, nylon or other polyester materials are obligated in tzitzis min hatorah.

Why should they not be? Answering this question requires its own introduction.

Tzitzis on leather ponchos

Notwithstanding the conclusion that silk and other materials require tzitzis, a different passage of Gemara (Menachos 40b) assumes that leather garments are exempt from the mitzvah of tzitzis. The Gemara cites a dispute among amora’im regarding whether a garment made of material obligated in tzitzis, but whose corners are made of leather, is obligated in tzitzis. It also cites a dispute whether a garment made of leather whose corners are made of cloth is obligated in tzitzis. Rav and Rav Zeira contend that, in both instances, the main part of the garment is the determinant — a cloth garment with leather corners is obligated to have tzitzis tied to its corners, whereas a leather garment with cloth corners is absolved from the mitzvah of tzitzis. Rav Acha’i disputes with Rav and Rav Zeira, contending that the material comprising the corner determines whether the garment requires tzitzis. Clearly, all the amora’im are in agreement that a garment made completely from leather is exempt from tzitzis.

Why is hide outside?

Why is leather different from all the other materials mentioned that are obligated in tzitzis? We will need to answer this question and then see whether synthetic materials are treated like leather and absolved from the mitzvah of tzitzis, or whether they are like silk and the other materials that are obligated in the mitzvah of tzitzis.

I found two basic approaches to explain why leather is treated differently from other materials. One approach is that leather is not woven, but is cut to size, and that the mitzvah of tzitzis applies only to woven material. This approach is implied by several acharonim (Levush, Orach Chayim 10:4; Graz 10:7).

Nylon and tzitzis

I found several responsa which discuss whether synthetic materials are obligated in the mitzvah of tzitzis. In each case, the questioner “preferred” that the synthetic garment be obligated in the mitzvah. In other words, since one is rewarded for wearing tzitzis daily, the questioner was interested in fulfilling the mitzvah by wearing tzitzis that are on a four-cornered garment made of polyester, nylon or rayon, desiring to wear a cooler material than wool or cotton.

One responsum on the subject is authored by Rav Tzvi Pesach Frank (Shu”t Har Tzvi, Orach Chayim 1:9). He understands that leather is exempt from the mitzvah of tzitzis because it is not woven, and that any four-cornered garment that is not woven is exempt from tzitzis, whereas a woven four-cornered garment is obligated in tzitzis. He then notes that there are two types of nylon garments, one made from woven nylon thread, which he rules would be required to have tzitzis, and one made from sheets of nylon, which are not woven and therefore absolved from the mitzvah of tzitzis, just as leather is.

Disputing approaches

Other authorities reach a different conclusion, for the following reason. In another context, several earlier authorities explain the distinction between leather and other materials in a different way. While discussing the minimum size  for a garment to contract tumah, the Mishnah (Keilim 27:1) teaches that leather clothing is not susceptible to become tamei unless it is larger than the halachic category called arig, which refers to woven material. In their commentaries on that Mishnah, the Rash and the Bartenura both explain that, were one to slice leather into very thin slices and weave them into a garment, the garment thereby produced would still have the halachah of leather and not that of a woven garment. These authorities recognize that the distinction between leather and woven materials is not the process of weaving, but something more basic.

Rav Moshe Feinstein explains that “woven cloth” means material that is a natural fiber that is spun into thread and then woven into cloth. Neither leather nor synthetics meet this definition. Rav Moshe contends that a fiber that can be woven into material is included under the category of arig for tumah purposes and for the obligation of tzitzis. Therefore, Rav Moshe concludes that a four-cornered garment made from synthetic material is exempt from the mitzvah of tzitzis. Wearing tzitzis tied onto such a garment does not accomplish any mitzvah, and reciting a brocha prior to donning this garment is a brocha levatalah, one recited in vain. Furthermore, according to Rav Moshe, wearing such a garment on Shabbos might violate carrying, since the tzitzis are not part of the garment. (The details of this topic are beyond the scope of this article, but see the correspondence and dispute of the Shu”t Meishiv Davar 1:2 with the Mishnah Berurah.)

The Rambam’s commentary

In his commentary to the Mishnah in Keilim, the Rambam seems to explain the Mishnah differently than do the Rash and the Bartenura. Nevertheless, Rav Moshe understands that all three of these authorities understand this aspect of the topic in the same way, but that the Rambam was emphasizing a different point. Thus, Rav Moshe concludes that all early authorities would exempt these synthetic materials from the mitzvah of tzitzis and that this is the halachah.

Tzitz Eliezer and tzitzis

Rav Moshe’s approach is disputed by Rav Eliezer Yehudah Valdenberg (Shu”t Tzitz Eliezer 12:3), who disagrees with Rav Moshe’s understanding of the Rambam. Whereas Rav Moshe understands that the Rambam is explaining the difference between leather and woven materials the same way that the Rash and the Bartenura do, the Tzitz Eliezer explains the Rambam to be making the same distinction as do the Levush, the Graz and the Har Tzvi, i.e.,that leather is not considered arig because it is not woven. As we mentioned above, in the opinion of these latter authorities, anything woven is obligated in the mitzvah of tzitzis. The Tzitz Eliezer understands that the Rambam is making the same distinction germane to what is considered arig for the laws of tumah. Since the later authorities accept this distinction, Rav Valdenberg concludes that four-cornered synthetic garments, which are woven, are obligated in tzitzis, and that those who are uncomfortable wearing other cloth may fulfill the mitzvah by wearing rayon or polyester tzitzis. Because there are early authorities who dispute this conclusion, namely the Rash and the Bartenura, Rav Valdenberg rules that those who wear these tzitzis should not recite a brocha when putting them on.

Prefers rayon

At this point, we can address one of our opening questions: “What is the basis of the halachic controversy whether one may have a talis koton made of rayon?”

The answer is that it depends on why leather is exempt from tzitzis. If leather is exempt because only woven fabrics are obligated in the mitzvah of tzitzis, then a rayon four-cornered garment is obligated in the mitzvah, and one fulfills the mitzvah by wearing it. On the other hand, if leather is exempt because only naturally fibrous materials are obligated in tzitzis, then rayon is exempt from tzitzis, and nothing is accomplished by tying tzitzis to a four-cornered rayon garment.

Metal clothing

This author would like to note another situation, although today uncommon, which should result from the dispute between Rav Pesach Frank and Rav Moshe. According to both approaches, if someone makes a four-cornered garment from metal plating, the garment is exempt from the mitzvah of tzitzis. According to Rav Moshe, it would be exempt because it is not made from material that is naturally fibrous, whereas according to Rav Frank, it would be exempt because it was not woven. However, already in the time of chumash, metal was sliced into filaments which were woven into clothing. Is a four-cornered garment woven from metal filament obligated in tzitzis? According to Rav Frank, this garment should be obligated in tzitzis since it is woven, whereas, according to Rav Moshe, it should not, since this material is not naturally fibrous.

Blends

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

“I have a talis koton that says that it is made of a cotton-polyester blend. Do I recite a brocha when I put it on?”

When a thread is spun from a blend of fibers, the halachic status of the thread is determined by what composes most of the thread’s fiber content and ignores the existence of other fibers inside the thread (Mishnah Kelayim 9:1). The minority of fiber is halachically bateil, or nullified, to the majority fiber content in the thread. Thus, threads spun from a mixture that is mostly cotton fiber with some linen fiber are considered cotton and may be woven in a woolen garment without creating a prohibition of shatnez. Similarly, a garment consisting of threads made of a blend of mostly mohair, but including some sheep’s wool fiber, that is woven or sewn with linen threads is not shatnez and may be worn.

The same law is true regarding the mitzvah of tzitzis. A garment made of threads that are a blend that is mostly rayon or polyester fiber and includes cotton fiber will have the halachic status of a rayon garment and be exempt from tzitzis, according to Rav Moshe’s ruling. Of course, according to Rav Frank, this garment is obligated in the mitzvah of tzitzis.

Conclusion

Rav Hirsch notes that the root of the word tzitzis is to “sprout” or “blossom,” a strange concept to associate with garments, which do not grow. He explains that the message of our clothing is extended, that is, sprouts and blossoms, by virtue of our tzitzis. The introduction of clothing to Adam and Chavah was to teach man that his destiny is greater than an animal’s, and that his responsibility is to make all his decisions according to Hashem’s laws, and not his own desires. Introducing tzitzis onto a Jew’s garments reinforces this idea; we must act according to what Hashem expects. Thus, whether we are wearing, shopping for, examining or laundering tzitzis, we must remember our life’s goal: fulfilling Hashem’s instructions, not our own desires.

May I Daven in English?

The end of parshas Noach teaches about the beginning of languages…

Question #1:

I received the following e-mail question from Verna Acular:

I much prefer to pray in English, since reading the siddur in Hebrew provides me with no emotional connection to G-d. I was told to read the Hebrew even though I cannot comprehend it; yet, other people I know were told that they could pray in English. Which approach is correct?

Question #2:

Bella, a middle-aged new immigrant from Central Europe, struggles to ask the rabbi:

Hungarian is the only language that I can read and understand. Someone told me that, now that I am living in the United States, I cannot pray in Hungarian, but must learn to read either English or Hebrew. Is this so? I am really too old to learn a new language.

Question #3:

Bracha Acharona asked me the following:

I heard that some authorities rule that if one recited a bracha in Japanese before eating, one should not recite the bracha again, even if one does not understand a word of Japanese; yet, if one bensched in Japanese, one would be required to bensch again. Is there indeed a difference between the brachos recited before and after eating?

Those That Can and Those That Cannot

The Mishnah (Sotah 32a) supplies a rather long list of mitzvos that are fulfilled only when recited in Hebrew and those that are fulfilled when recited in any language. For example, one cannot fulfill the requirements of chalitzah (see Devarim 25:7-10), duchening (see Bamidbar 6:24-26), and the narration that accompanies bikkurim (see Devarim 26:5-11), unless one recites the exact Hebrew words that the Torah cites. On the other hand, other mitzvos, including the reciting of shema, prayer (including shemoneh esrei), and birkas hamazon (bensching) can be fulfilled by translating the relevant passages into a language that one understands. Indeed, the Gemara (Brachos 40b) records an instance in which an individual named Binyomin the Shepherd bensched in Aramaic, and Rav ruled that he had fulfilled his requirement. The Gemara explains the reason why some mitzvos may be fulfilled in translation, but not others, on the basis of several intricate interpretations from various verses.

Which is preferable?

Having established that one may pray in a vernacular, the first question on which we will focus is whether it is preferable or perhaps even essential for someone who does not understand Hebrew to pray in a language that he understands, or whether it is preferred to pray in Hebrew, even though it is not understood.

Tosafos’ opinion

From Tosafos (Sotah op. cit.) we see that someone who does not understand Hebrew and recites a prayer, shema, or bensching in Hebrew does not fulfill the mitzvah. Tosafos asks why the Mishnah omits hearing megillah from its list of mitzvos that may be fulfilled in any language. Tosafos answers that the mitzvah of megillah is qualitatively different from all the other mitzvos mentioned in this Mishnah, because one who does not understand Hebrew fulfills the mitzvah of megillah in Hebrew. Tosafos clearly understands that someone who prays, bensches or reads shema in a language he does not understand does not fulfill the mitzvah, even if the language is Hebrew, and the Mishnah is listing mitzvos that someone who doesn’t understand Hebrew will fulfill only in the vernacular. Thus, according to Tosafos’ opinion, Verna should be reciting her prayers in English, and Bella should recite them in Hungarian.

Hebrew for the Hungarians

Although Tosafos holds this way, later authorities reject this conclusion. The Keren Orah notes that, according to Tosafos, someone who does not understand Hebrew will be unable to fulfill the mitzvos of bensching and davening if he does not have a siddur handy with a translation in a language that he understands. The Keren Orah cites other early authorities who answered Tosafos’ question (why Megillah is not cited in the Mishnah) in a different way, and he concludes that one who prayed, bensched or read shema in Hebrew fulfills the mitzvah, even if he does not understand Hebrew, providing that he knew that he was about to fulfill the mitzvah.

Quoting other authorities, the Mishnah Berurah (62:2), rules that someone who does not understand Hebrew should preferably daven, bensch and recite shema in Hebrew.

What does veshinantam mean?

The Mishnah Berurah adds an additional reason to recite shema in Hebrew; there are several words in shema that are difficult to translate, or whose meaning is unclear. For example, the word veshinantam may often be translated as and you shall teach them, but this translation does not express the full meaning of the word. The word for teach them in Hebrew is velimad’tem, which is used in the second parsha of shema. The word veshinantam means teaching students until they know the Torah thoroughly, and simply translating this word as and you shall teach them does not explain the word adequately.

This difference in meaning is reflected in Targum Onkeles, where velimadtem is translated vesalfun, whereas veshinantam is translated u’sesaninun, which comes from the Aramaic root that is equivalent to the Hebrew veshinantam. Thus, Aramaic possesses two different verbs, one of which means to teach and the other meaning to teach until known thoroughly, whereas English lacks a short way of expressing the latter idea.

I have heard it suggested that one may alleviate this problem of reciting shema in English by translating the word veshinantam with the entire clause you shall teach it to your sons until they know it thoroughly. This approach should seemingly resolve the concern raised by the Mishnah Berurah, although I am unaware of an English translation that renders the word veshinantam in this way.

Other hard translations

Whether or not one can translate veshinantam accurately, the Mishnah Berurah questions how one will translate the word es, since it has no equivalent in most languages. He further notes that the word totafos, which refers to the tefillin worn on the head,is also difficult to translate. However, when we recite these words in Hebrew, we avoid the need to know the exact translation, since we are using the words the Torah itself used. The Mishnah Berurah feels that, for the same reasons, someone who can read but does not understand Hebrew should recite kiddush, bensching, davening and his other brachos in Hebrew.

Although the Mishnah Berurah does not mention this predicament, a problem similar to the one he raises concerns the translation of the Name of G-d. When reciting a bracha or any of the above-mentioned requirements in a different language, one must be careful to translate this Name accurately (Shu’t Igros Moshe, Orach Chayim 4:40:27). Rav Moshe Feinstein notes this problem in the context of the anecdote I mentioned above about Binyomin the Shepherd, who bensched in Aramaic. The Gemara records that Binyomin referred to G-d as Rachmana. In a teshuvah on the subject, Rav Moshe notes that although the word Rachmana obviously derives from the same source as the word rachum, mercy, one would not fulfill the requirement of reciting a bracha by substituting the word rachum for Hashem’s Name. Thus, Rav Moshe asks, how could Binyomin the Shepherd have fulfilled his bracha by reciting the translation of the word rachum?

Rav Moshe answers that although the source of the word Rachmana and the word rachum are the same, Rachmana is the translation of G-d’s Name in Aramaic, and therefore it is used in Aramaic prayers and blessings. However, rachum is not a translation of G-d, but an attribute of G-d, and its recital in a bracha is not adequate.

We thus realize that someone translating Hashem’s Name into any language must be careful to do so accurately.

Is “G-d” correct?

I have seen two common ways of translating the Name of Hashem into English, one as Lord and the other as G-d. Translating His Name as Lord is based on the meaning of the Name Adnus as Adon hakol, the Lord of all, which is the basic understanding one is required to have when reciting His Name. However, I have noticed that some recent translations now transliterate the Name in English as Hashem. This is not an accurate translation, and a person reciting the bracha this way will not fulfill his responsibility. I strongly suggest that the publishers not do this, since they are performing a disservice for people using their translation.

The position of the Sefer Chassidim

Notwithstanding that the Mishnah Berurah prefers that someone who does not understand Hebrew daven, bensch, and recite shema in Hebrew, the Sefer Chassidim (#588) advises, “A G-d-fearing man or woman who does not understand Hebrew who asks, tell them to learn the prayers in the language that they understand. Prayer can be recited only with the understanding of the heart, and if the heart does not understand what the mouth expresses, nothing is accomplished. For this reason, it is best to pray in a language one understands.

He states this even more clearly in a different passage (#785).

It is better for a person to pray and recite shema and brachos in a language that he comprehends, rather than pray in Hebrew and not understand… It is for this reason that the Talmud, both in Bavel and in Eretz Yisrael, was written in Aramaic, so that even the unlettered can understand the mitzvos.

The Sefer Chassidim’s position is subsequently quoted by the Magen Avraham (101:5), who also cites this approach in the name of the Asarah Ma’amaros of the Rama miFanu.

The Yad Efrayim’s approach

The Yad Efrayim quotes the Magen Avraham (who ruled as the Sefer Chassidim), but contends that one should recite the tefillah in Hebrew. To quote him: In our days, when there is no one who can translate the Hebrew accurately, one should rebuke anyone who follows a lenient route and prays in the vernacular. Rather, one should not separate himself from the community that reads the prayer in Hebrew, and one fulfills the mitzvah even if he does not understand. Someone concerned about the issues raised by Sefer Chassidim should learn enough basic understanding of Hebrew to know what he is asking. Although he does not understand every word, this is not a concern… If he does not want to learn Hebrew, he should pray in Hebrew with the community, and afterwards read the prayer in translation.

Thus, the Yad Efrayim is a strong advocate of praying only in Hebrew, and he is presumably one of the authorities upon whom the Mishnah Berurah based his ruling.

At this point, we can return to Verna’s question:

I much prefer to pray in English, since reading the siddur provides me with no emotional connection to G-d. I was told to read the Hebrew, even though I cannot comprehend it; yet, other people I know were told that they could pray in English. Which approach is correct?

Verna has been told to follow the ruling of the Yad Efrayim and the Mishnah Berurah, which is the most commonly, followed approach today. The “other people” that Verna mentions were instructed to follow the approach of the Magen Avraham and the Sefer Chassidim. It is also possible that the “other people” cannot read Hebrew properly. Someone who cannot read Hebrew has no choice but to recite prayers in the best translation that he/she can find.

Is this the language of the country?

At this point, I would like to address Bella’s predicament:

Hungarian is the only language that I read and understand. Someone told me that, now that I am living in the United States, I cannot pray in Hungarian, but must learn to read either English or Hebrew. Is this so?

What is the halacha if someone does not understand the language of the country in which he/she lives? Can one fulfill the mitzvos of shema, brachos and davening by reciting these prayers in his native language, notwithstanding the fact that few people in his new country comprehend this language?

Although this may seem surprising, the Bi’ur Halacha rules that one fulfills the mitzvos in a vernacular only when this is the language that is commonly understood in the country in which he is currently located. The Bi’ur Halacha based his ruling on a statement of the Ritva (in the beginning of his notes to the Rif on Nedarim), who implies that halacha recognizes something as a language only in the time and place that a people has chosen to make this into their spoken vernacular.

Following this approach, one who recites a bracha in America in a language that most Americans do not understand is required to recite the bracha again. Bella was indeed told the position of the Bi’ur Halacha that one cannot fulfill the mitzvah of praying in the United States in Hungarian or any other language that is not commonly understood, other than Hebrew.

Rav Gustman’s position

Other authorities dispute the Bi’ur Halacha’s conclusion, demonstrating that this concern of the Ritva refers only to a slang or code, but not to a proper language (Kuntrisei Shiurim of Rav Gustman, Nedarim page 11; and others). This means that if someone prayed or recited a bracha in something that is not considered a true language, he would not fulfill his mitzvah and would be required to recite the prayer or bracha again. However, although most Americans do not understand Hungarian, this is a bona fide language, and Bella fulfills the mitzvah by davening in Hungarian. Rav Gustman writes that he told many Russian baalei teshuvah that they could pray in Russian when they were living in Israel or the United States, even though Russian is not understood by most people in either country. He acknowledges that, according to the Bi’ur Halacha, this would not fulfill the mitzvah.

Must one understand the foreign language?

At this point, we will address Bracha’s brachos question:

I heard that some authorities rule that if one recited a bracha in Japanese before eating, one should not recite the bracha again, even if one does not know a word of Japanese; yet if one bensched in Japanese, one would be required to bensch again. Is there indeed a difference between a bracha before eating and one after?

According to Tosafos, someone can fulfill reciting the brachos before eating, Hallel and Kiddush even in a secular language that one does not understand. Tosafos contends that we see from the Mishnah that these mitzvos have a difference in halacha with bensching, davening and shema, where one fulfills the mitzvah only in a language that one understands.

Do we follow Tosafos’ opinion?

Although the Magen Avraham (introduction to Orach Chayim 62) rules in accordance with this Tosafos, most later commentaries do not (Keren Orah and Rav Elazar Landau on Sotah ad loc.; Bi’ur Halacha 62 s.v. Yachol; Aruch Hashulchan 62:3). Several authorities state that they do not understand Tosafos’ position that there is a difference between shema, shemoneh esrei and birkas hamazon, which can only be recited in a language one understands, and Kiddush, Hallel, birkas hamitzvos and brachos before eating, which Tosafos rules one may recite even in a language that one does not comprehend.

I suggest the following explanation of Tosafos’ view: The drasha of Chazal states that one fulfills shema only in a language that one understands. This is logical, because shema is accepting the yoke of Heaven, and how can one do this without comprehending the words? The same idea applies to the shemoneh esrei — how can one pray if he does not understand what he is saying? Birkas hamazon is also a very high level of thanks, and what type of acknowledgement is it, if one does not know the meaning of the words he is saying? However, one can praise in a language that he does not understand, as evidenced by the fact that chazzanim or choirs may sing beautiful praise, although they do not necessarily comprehend every word. Similarly, as long as one knows that kiddush sanctifies Shabbos, he fulfills the mitzvah, even if he does not understand the words.

Conclusion

Some people, who cannot read Hebrew at all, have no choice but to pray in the language that they can read and understand. However, anyone who can should accept the challenge of studying the prayers a bit at a time, thereby gradually developing both fluency and comprehension. In the interim, they can read the translation of each paragraph first, and then read the Hebrew, which will help them develop a full understanding of the prayers as Chazal wrote and organized them.

Living Things Carrying Themselves?

Since our parsha discusses both the creation of all living things, and the creation of Shabbos

Question # 1: Animals on Shabbos

Why must animals observe Shabbos, when they are not required to observe any other mitzvos?

Question #2: A Bird in the Hand

Does carrying a bird desecrate Shabbos min haTorah?

Question #3: Togetherness

If two people carry an item together, are they culpable of chillul Shabbos?

Introduction

The words of the Aseres Hadibros are: “The seventh day is Shabbos for Hashem, your G-d. You may not do any work; not you, your son, daughter, your slave and maidservant, or your animal.”

Thus, we are introduced to the concept that Shabbos is not only for us to observe, but also for us to ensure that animals are not involved in Shabbos desecration. We understand that we are required to observe Shabbos, but why should our animals be required to do so? Does the Torah assume that they comprehend what Shabbos means and can calculate which day of the week it is? How should we punish them if they disobey?

The answer is that they are not required to keep Shabbos; animals have no requirement to observe mitzvos. The mitzvah applies to us: included in our observance of Shabbos is an obligation that we are not to have our animals perform melacha for us.

There are two aspects to this mitzvah, one called shevisas beheimah and the other called mechameirShevisas beheimah requires that my animal not be worked by a person, and includes a situation in which a Jewish animal owner allows another person to use his animal to perform melacha for human benefit. The owner violates this lo saaseh even if he allows a non-Jew to use his animal to perform melacha, notwithstanding that the non-Jew has no mitzvah to observe Shabbos, and, indeed, is not even permitted to do so (Sanhedrin 58b).

Mechameir is when a Jew uses an animal to perform a melacha, even if he does not own the animal.

We see that these two activities, shevisas beheimah and mechameir, are both prohibited min haTorah. Does this mean that they are considered on the same level as performing one of the 39 melachos on Shabbos? Chazal explain that there are two categories of activities that are prohibited min haTorah on Shabbos — those that are included under the heading of melacha, and those that are not. The first are those that the Torah says could require capital punishment, as we see from the story of the mekosheish (see Bamidbar 15 32-35). Shevisas beheimah is certainly not considered a melacha, notwithstanding that it is prohibited min haTorah.

According to some tanna’immechameir has the full status of a melacha. The halacha is that although mechameir is not a melacha, it still violates Shabbos min haTorah, on a level approximately similar to the way that stealing violates the Torah. 

Only melacha

Both shevisas beheimah and mechameir violate Shabbos min haTorah only when the animal is used to perform an activity that for a person is considered melacha. Thus, having an animal plow or plant a field violates Shabbos. We will see more on this topic at the end of this article. Before we do, we need to discuss a different subject.

Chai nosei es atzmo

In several places, the Gemara discusses a halachic principle called chai nosei es atzmo, literally, “a living thing carries  itself” (Shabbos 94a, 141b; Eruvin 103a; Yoma 66b). The Gemara (Shabbos 94a) quotes and explains this concept, when it cites a dispute between Rabbi Nosson and the chachamim regarding someone who carries an animal or bird on Shabbos. Rabbi Nosson rules that the carrier is not in violation of Shabbos min haTorah, because of the principle of chai nosei es atzmo, whereas the chachamim rule that the carrier is culpable of desecrating Shabbos. The Gemara then states that the chachamim agree that carrying a person does not violate Shabbos min haTorah, because of chai nosei es atzmo. The chachamim contend that, notwithstanding the principle of chai nosei es atzmo, carrying an animal desecrates Shabbos min haTorah, because animals will try to wriggle out of the person’s control when they are carried. This argument does not concern Rabbi Nosson, although the Gemara never tells us why.

A bird in the hand

At this point, we have enough background to answer the second of our opening questions:

Does carrying a bird desecrate Shabbos min haTorah? The answer is that this is the subject of a dispute among tanna’im, in which Rabbi Nosson rules that the person doing this is not guilty of desecrating Shabbos because of chai nosei es atzmo, but the chachamim conclude that it does violate carrying, min haTorah. The halacha follows the opinion of the chachamim (Rambam, Hilchos Shabbos 18:16).

Why is chai nosei es atzmo exempt?

Why is it that, because of the principle of chai nosei es atzmo, carrying a person is not considered desecrating ShabbosTosafos (Shabbos 94a s.v. she’ha chai) is bothered by this issue, mentioning three approaches to explain why this is true, each of which requires a lengthy introduction. To remember the three approaches in the order in which Tosafos proposes them, I suggest the follow popular acronym: ATM.

1. Assistance

The “passenger” assists the “carrier” in the transportation.

2. Togetherness

Two (or more) people, or one person and one (or more) animal(s), are involved in performing the melacha, together.

3. Mishkan

The melacha activity is dissimilar from the way any carrying was performed in the construction of the Mishkan.

Assistance

The first approach suggested by Tosafos understands that carrying a person is not a melacha min haTorah because the “passenger” distributes his weight to help out the person who is hauling him. Tosafos rejects this approach because, although it is easier to carry a person than the same amount of dead weight, it is far easier to carry a much lighter object than it is to carry a person, yet carrying the light object violates Shabbos min haTorah, whereas carrying a person does not. Thus, Tosafos explains that there must be a different reason to explain chai nosei es atzmo.

A point that Tosafos does not note is that the approach just mentioned appears to be how Rashi (Shabbos 93b s.v. es) understands the topic of chai nosei es atzmo. We will need to address this sub-topic at another time.

Togetherness

The second approach to explain chai nosei es atzmo quoted by Tosafos is based on a principle, taught by the Mishnah (Shabbos 92b, 106b), that there is a qualitative difference between a melacha that is performed by two people together and one that is performed by a sole individual. The halachic term applied when two people perform a melacha together is shenayim she’asu. When the person being carried makes it easier for someone else to carry him, it is considered shenayim she’asu, and neither the carrier nor the passenger violates a Torah melacha.

However, based on detailed analysis of the rules of shenayim she’asuTosafos denies that this rationale will exempt the performer of this act from culpability on Shabbos. There are three opinions among tanna’im as to what are the rules germane to shenayim she’asu. Rabbi Meir, the most stringent of the three, disagrees with the rule that shenayim she’asu is not considered as performing a melacha (Shabbos 92b). He contends that when two people perform a melacha activity together, they are usually both culpable of violating the melacha. (We will mention shortly the one case when even Rabbi Meir accepts that there is an exemption.)

Second opinion

The tanna Rabbi Yehudah, a second opinion, draws a distinction regarding whether the two people can perform the melacha only when they are working together or whether each can perform the melacha separately. When two people carry something together that neither would be able to carry on his own, both are culpable for carrying the item on Shabbos, since this is the usual way for two people to perform this melacha activity. For example, a table too heavy or bulky for one person to carry is usually carried by two people. Therefore, two people carrying this table is the usual way to transport it. This case is called zeh eino yachol vezeh eino yachol, in which case, both transporters are culpable for desecrating Shabbos, according to Rabbi Yehudah.

However, regarding an item that each would have been able to carry on his own, such as a chair that is easily carried by either individual alone, should the two of them carry it together, neither is guilty of violating Shabbos, since this is an unusual way of carrying it. This case is called zeh yachol vezeh yachol.

Third opinion

The third approach is that of Rabbi Shimon, who rules that whether the item can be carried by each person separately or whether it cannot, no one violates Shabbos min haTorah.

The conclusion of the rishonim is that the halacha follows the middle opinion, that of Rabbi Yehudah (Rambam, Hilchos Shabbos 1:16).

Two together

At this point, I will digress briefly to answer the third of our opening questions: If two people carry an item together, are they culpable of chillul Shabbos?

The answer is that this case usually involves a dispute among tanna’im, and the accepted halacha is that, if either could carry it by himself, they are exempt from chillul Shabbos min haTorah. However, if it is a large item, and neither can carry it on his own, they are culpable of desecrating Shabbos.

One can and one cannot

What is the halacha if one of them is able to carry it by himself, and the other cannot? This case is called zeh yachol vezeh eino yachol, which we have thus far omitted from our discussion. What is the halacha if one of the parties can perform the melacha activity by himself, and the second cannot perform it without the assistance of his associate?

The Gemara raises this question and concludes that the person who can perform the melacha by himself is culpable, even when he is assisted, and the person who cannot perform it by himself is exempt from a melacha min haTorah (Shabbos 93a).

Now, notes Tosafos, let us compare the case of chai nosei es atzmo, when one person carries another, to the rules ofshenayim se’asu. In this case, the person doing the carrying can obviously perform the melacha by himself without the assistance of the other person. And, the person being carried is not performing the melacha by himself. According to what we just learned, the person doing the carrying should be culpable for violating the melacha. Since the halacha of chai nosei es atzmo is that the person doing the carrying is exempt from violating the melacha min haTorah, the approach of shenayim she’asu does not explain the halachic conclusion, and clearly cannot be the correct reason for the principle of chai nosei es atzmo. In baseball jargon, we would call this a swing and a miss.

Mishkan

Tosafos, therefore, proposes a third way to explain the principle of chai nosei es atzmo: The 39 melachos of Shabbos are derived from the activities performed in the building of the Mishkan in the Desert. Notwithstanding the importance of constructing the Mishkan as quickly as possible, it was strictly prohibited to perform any aspect of its building on Shabbos. This implies that the definition of what is prohibited on Shabbos is anything necessary to build the Mishkan.

Tosafos notes that building the Mishkan never necessitated carrying something that was alive. Although both hides of animals and dyes manufactured from animal sources were used in the construction of the MishkanTosafos concludes that the animals whose hides were used were led, rather than carried, to where they were slaughtered, and the animals that provided sources for the dyes were transported after they were dead. Thus, chai nosei es atzmo creates an exemption from desecrating Shabbos because of a unique rule in the melacha of carrying: for an activity to be considered a melacha min haTorah of carrying, the activity has to be fairly comparable to the way it was done in the construction of the Mishkan (see Tosafos, Eruvin 97b s.v. es and Shabbos 2a s.v. pashat; see also Penei Yehoshua on Tosafos 94a s.v. shehachai).

Chachamim

We noted above that, whereas Rabbi Nosson rules that someone who carried an animal on Shabbos is exempt from violating Shabbos min haTorah, the chachamim disagree. However, the Gemara concludes that the chachamim also accept the principle of chai nosei es atzmo, but disagree with its application regarding the case of someone carrying an animal, since the animal will be trying to escape. The chachamim agree that chai nosei es atzmo applies when carrying a person, as evidenced in two different places in the Mishnah:

In Mesechta Shabbos, the Mishnah (93b) states that carrying a bed containing an ill person on Shabbos is not a melacha min haTorah. This is because the bed is subordinate to the person, just as clothing or jewelry is. Carrying the person, himself, is not a melacha, because of chai nosei es atzmo.

The second place is a Mishnah discussing a rabbinic injunction banning sale of a donkey or cow to a non-Jew on any day of the week (Avodah Zarah 14b). The Gemara (15a) explains that this prohibition is because of concern that selling a large animal to a non-Jew could cause the seller to desecrate Shabbos, and then explains two different scenarios whereby this could happen.

A. Renting or lending

One way is that a Jew may rent or lend an animal to a non-Jew over Shabbos, which could easily cause the Jewish owner of the animal to desecrate Shabbos. When the non-Jew renter or borrower uses the animal on Shabbos, the Jewish owner violates the Torah prohibition of shevisas beheimah, explained at the beginning of this article. Prohibiting the sale of large animals to non-Jews avoids a Jew having any financial dealings involving these animals.

B. Mechameir

The other concern is that the Jew might sell the animal to a non-Jew before Shabbos, but the non-Jew discovers on Shabbos that he cannot get the animal to follow his instructions, so he asks the Jew for help with the animal after Shabbos starts. If the Jew speaks and the animal obeys his voice and thereby performs melacha, the Jew has directed the animal to work on Shabbos, which is a desecration of mechameir, even should the non-Jew already own the animal.

For those in the cattle business, there are heterim discussed in the Gemara and the halachic authorities, which we will leave for another time.

Chai nosei es atzmo

We now know why Chazal banned a Jew from selling an animal to a non-Jew. What does this have to do with chai nosei es atzmo?

The Mishnah teaches that Ben Beseira permits selling horses to non-Jews, which the chachamim dispute. Having your animal work on Shabbos is prohibited min haTorah only when the animal performs what is considered melacha. Thus, having an animal plow, plant, or grind grain is prohibited, min haTorah, on Shabbos. However, having an animal carry a human rider on Shabbos is prohibited only miderabbanan, since the human is capable of walking – chai nosei es atzmo. Therefore, Ben Beseira permitted selling a horse to a non-Jew, because this would never lead someone to violate Shabbos min haTorah. The Sages prohibit selling a horse, because there are instances in which it is used to perform melacha de’oraysa, and therefore it is included in the prohibition of selling large animals to a non-Jew.

Conclusion

As I mentioned above, animals have no requirement to observe mitzvos. The requirement that it is forbidden to do melacha is a commandment that applies to us; observing Shabbos requires that we refrain from having them perform melacha for us. And the reason is simple: Hashem gave us permission, indeed responsibility, to oversee and rule over the world that He created. However, we must always remember that it is He who gave us this authority, and, by observing Shabbos, we demonstrate this. Our power extends over all of creation, including the animal kingdom. Thus, Shabbos limiting our control of animals demonstrates that our authority the rest of the week is only by virtue of the authority granted us by Hashem.

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos in order to provide a day of rest. This is incorrect, he points out, because the Torah does not prohibit doing avodah, which connotes hard work, but melacha, which implies purpose and accomplishment. On Shabbos, we refrain from constructing and altering the world for our own purposes. The goal of Shabbos is to emphasize Hashem’s rule as the focus of creation by refraining from our own creative acts (Shemos 20:11). Understanding that the goal of our actions affects whether a melacha activity has been performed demonstrates, even more, the concepts of purpose and accomplishment.

Kosher Hadasim

Question #1: “Stupid myrtle”

Why is one type of myrtle considered less intelligent than others? Did this variety get a poorer SAT score?

Question #2: Seven at a Time!

“Why should a three-leafed plant suddenly sprout seven leaves?”

Question #3: “Grafted Hadas

May a hadas be grafted?

Answer

In Parshas Emor, the Torah teaches: “And on the first day, you shall take for yourselves the fruit of a beautiful tree, branches of date palms, branches of a thickly leaved tree and river willows, and you shall rejoice before Hashem your G-d seven days” (Vayikra 23:40). Of the four species that we take on Sukkos, two, the lulav and the aravah, are described quite clearly in the Torah, whereas the other two are described in the Torah in an unclear way and require the Torah shebe’al peh to identify them. The Hebrew term used to describe the third of these species is anaf eitz avos, which I translated above as “branches of a thickly leaved tree,” although at times in this article I will call it a “twig” rather than a “branch.”

The Written Torah does not provide any more indication as to what we are to take, but the Oral Torah’s mesorah from Sinai is that it is what we call a hadas. As the Rambam teaches in the Introduction to his Commentary on the Mishnah, there is an oral tradition from teacher to disciple, going all the way back to Moshe at Har Sinai, to identify anaf eitz avos as hadas. In contemporary parlance, the species that we call hadas is the “common myrtle” or the “true myrtle,” scientifically identified as Myrtus commonis, as opposed to the “crape myrtle” and other shrubs that are called myrtle, but with a descriptive adjective.

Nevertheless, we are left with two questions:

(1) How do we know that anaf eitz avos of the Written Torah means a myrtle?

(2) Why doesn’t the Torah use the word hadas? Unlike the word esrog, which shows up nowhere in Tanach and is terminology used by Chazal (see Ramban, Vayikra, 23:40), the word hadas appears many times in Tanach (see, for example, Yeshayahu 41:19; 55:13; Zecharyah 1: 8, 10, 11; Nechemiah 8:15). The word hadas is much shorter than the description anaf eitz avos that the Torah uses. And, the Torah taught that we should use a shorter term to teach whenever possible (Pesachim 3b).

To quote the Gemara, “anaf eitz avos refers to a species whose leaves cover the wood of the branch,” which is an unusual feature. Look at the branches of most trees and shrubs and you will notice that this feature is atypical.

The Gemara (Sukkah 32b) asks how we know that anaf eitz avos is a hadas; perhaps it is a different species. The Gemara analyzes several options, including whether anaf eitz avos refer to the branches of an olive, or of either of two other types of trees, called in Aramaic dulba and hirduf. Based on careful analysis of the Torah, the Gemara eliminates all these options and concludes that anaf eitz avos is hadas.

Perpendicular leaf

Even some varieties of common myrtle grow with the leaves sticking out perpendicular to the branch, and, in these varieties, the wood of the branch can be easily seen. There is discussion among halachic authorities whether such myrtles may be used on Sukkos to fulfill the mitzvah, since they do not fulfill the Torah’s description of anaf eitz avos (see Mor Uketziah and Graz, Orach Chayim 646:1; Rashash, Sukkah 32b; Eimek Brocha, Lulav #11).

How long?

How long must a hadas be? The branch of the hadas must be at least three tefachim, not including leaves that extend beyond the wood of the branch. How long is three tefachim? We usually assume this to be about 9 and a half inches (according to Rav Chayim Na’eh) or about 11 and a half inches (according to the Chazon Ish).

“Stupid myrtle”

The Gemara discusses whether any branch of a hadas bush qualifies for fulfilling the mitzvah. Rav Yehudah says that a hadas is kosher only when three leaves grow alongside one another around the width of the twig, what we call meshulash. Rav Kahana disagrees, ruling that a hadas is kosher even if two leaves are at the same height and a third is a bit lower, but it overlaps the other two. Rav Acha deliberately chose those that Rav Kahana had ruled kosher, since he wanted to fulfill Rav Kahana’s words. However, Ameimar used to refer to those hadasim as “hadas shoteh,” which most authorities assume means that one does not fulfill the mitzvah with this variety.

The word “shoteh,” when referring to a person, means someone not legally responsible for his actions, the equivalent of an insanity defense. The term kelev shoteh (Shabbos 121b; Yoma 83a-84a), means a rabid dog. Does this mean that Ameimar called this type of myrtle branch a “stupid hadas,” an “insane hadas or a “rabid hadas?”

No. Although the word “shoteh” has a similar meaning in the expressions chassid shoteh (Sotah 20a; 21b), and bechor shoteh (midrashim in parshas Mikeitz), the word shoteh is also used in other contexts, such as “luf shoteh,” which does not mean a “stupid luf” or a “rabid luf,but an uncultivated, usually not eaten, variety of the vegetable called “luf.” The Ritva (Sukkah 32b) explains that the word shoteh means “imperfect” or “not in proper order.” If you are familiar with the Modern Hebrew usage of something/someone being shelo beseider, it is easy to understand the term shoteh as used in every one of the above contexts.

The rishonim (Rambam, Hilchos Lulav 8:1; Tur and Shulchan Aruch, Orach Chayim 646:3) conclude that a hadas shoteh is not kosher. Although some places had a custom to use them, as reported by the Terumas Hadeshen (2:259) and Rema (Orach Chayim 646:3), the halachic conclusion is not to, even when no other hadasim are available (Mishnah Berurah 646:15).

Two by two

The Rema (Orach Chayim 646:2) writes that if there are only two leaves at each point and no single leaves, the hadas is kosher for fulfilling the mitzvah. Evidently, he held that the term shoteh refers to a myrtle having one leaf sitting by itself (Yevakesh Torah). However, this approach is not accepted by other halachic authorities, who accept only a hadas with three leaves growing alongside one another.

How much?

How much of the hadas must be meshulash to be kosher? There are many opinions among the rishonim. Some contend that the entire twig must be meshulash, or at least the top three tefachim (Tur, Orach Chayim 646, quotingthe geonim; Ritva, quoting his rebbe, the Re’ah; Magid Mishnah, Hilchos Sukkah 7:2). The Ra’avad, in his work on the laws of lulav and esrog, and the Rosh conclude that it is best if the entire hadas is meshulash, but it is kosher if it is meshulash most of the way. Another approach rules that although the entire hadas must be three tefachim long, it is kosher if it contains three places where the leaves are meshulashim (Sefer Hamichtam, quoting Ba’al Ha’itur). And yet another opinion is much more lenient, contending that it is kosher for Sukkos-use even when it is meshulash in only one place (Tur, quoting Ba’al Ha’itur). The accepted halacha is that the majority of the twig must be meshulash, but it is preferred for it to be meshulash the entire length.

The Eimek Beracha (#11) explains the dispute among the rishonim as follows: The opinions that contend that it is sufficient if the hadas is meshulash in only one place, or in only three places, contend that this requirement identifies the hadas as the correct variety called anaf eitz avos. A minimal amount of meshulash suffices to identify it as such.

Those that require that the hadas be entirely meshulash, or at least most of its length, contend that anaf eitz avos is a gezeiras hakasuv defining what the Torah requires for the mitzvah, just as it requires that the hadas not be extremely dried out or that the esrog have proper color.

Leaves or stem?

Is meshulash determined by the leaves or by their stem? In other words, if three leaves begin and end at the same height, but the stems from which the leaves grow are not at the same height, or vice versa, is the hadas considered meshulash?

Numerous poskim describe meshulash as three leaves lying side by side, and I know of no authorities who state that the stems of the three must be at the same height.

Nechemiah

I once read that someone asked how anaf eitz avos of the Torah can be identified as hadas, when the same posuk in Nechemiah mentions both, implying that they are not the same. However, reading the verse carefully resolves any difficulty:

“On the second day, the heads of all the families, the kohanim, the levi’im and the rest of the people came to Ezra to learn the words of the Torah. They discovered that the Torah had written that Hashem commanded, via Moshe, that the Bnei Yisrael dwell in sukkos during the festival of the seventh month. They then sent an announcement through all the cities and Yerushalayim, instructing everyone to go to the mountain and bring olive branches, olive lumber, hadasim branches, date branches, and anaf eitz avos to make Sukkos, as written. The people went out and brought; they manufactured sukkos for themselves, each man on his rooftop and in his courtyard… and the entire community that had returned from captivity observed Sukkos and they dwelled in sukkos” (Nechemiah 8:13-17).

It is quite clear from the verse that the “olive branches, olive lumber, hadasim branches” were used as construction material to make the walls and schach of the sukkos, and not used for the four species. (Note that the word Sukkos referring to the festival was capitalized, whereas when referring to the huts, it is lower case.)

Seven at a time!

We asked above: “Why should a three-leafed plant suddenly sprout seven leaves?” The Gemara (Sukkah 33a) refers to a hadas mitzra’ah that grows seven leaves at one height, rather than just three (Sukkah 33a). In other ways, this looks like a regular hadas. Rashi mentions two opinions as to what the term hadas mitzra’ah means. His first approach is that mitzra’ah means “on the border;” a hadas mitzra’ah grew on the edge of a field and had no competition for nutrients. As a result, it grew with many extra leaves. Even if most of its leaves fell out at each point, as long as three leaves remain at every point, we have a hadas that lost most of its leaves and is still fully kosher.

Rashi’s second opinion is that the word mitzra’ah is from the word Mitzrayim, Egypt, and means a variety of hadas, common in Egypt, that usually grew seven leaves at each point. The hadas of either interpretation of the Gemara is kosher, notwithstanding that this variety was usually identified as a hadas mitzra’ah, and not simply “hadas” (see Tosafos and Ritva, Sukkah 33a).

Grafted hadas

Reference to grafted species on Sukkos usually calls to mind esrogim produced by grafting esrog branches onto rootstocks of other species. Most poskim prohibit using these esrogim to fulfill the mitzvah, because the fruit is considered to be partly esrog and partly the species of the rootstock (Shu’t Rema #117; Shu’t Alshich #110; Magen Avraham; Taz). Others prohibit their use because the Torah bans grafting different species together (Levush, Orach Chayim 649:4).

Later poskim discuss whether an esrog of unknown lineage may be used based on appearance: If it looks like an esrog (both inside and out), grows seeds like an esrog does, and has the shape of an esrog, the Beis Efrayim (Shu’t Orach Chayim #56) rules that it is a kosher esrog. Others contend that we may use the esrog only when we have a tradition that the growers in that area did not graft esrogim onto other species.

However, our discussion is about the use of a grafted myrtle as a hadas. In the early eighteenth century, a shaylah was raised in Prague whether a variety of myrtle growing locally was kosher as a hadas. At that time, hadasim were imported from warmer areas, and they often arrived very dried out. The question was asked of Rav Yaakov Breisch, the author of Shevus Yaakov, Chok Yaakov, Toras Hashelamim and many other classic halachic works, whether these Prague myrtles were kosher as hadasim. If they were kosher, they would be much more mehudar to use, since they were available fresh. If they were not, the dry, imported hadasim should be used.

The Shevus Yaakov first reviews the literature germane to the use of grafted esrogim. He notes that if the reason not to use grafted esrogim is because they were used for an aveirah, grafted hadasim will be kosher. This is because the prohibition of cross-grafting species exists only regarding trees bearing edible fruit, not for trees and shrubs that do not bear edible fruit. Although the hadas does produce a berry, it is never cultivated for its berry, and it is therefore excluded from the prohibition of grafting trees.

However, the Shevus Yaakov notes that this is not the primary reason cited to prohibit grafted esrogim. The main reason is that the fruit of a graft is considered a mixed species. Thus, if the Prague hadas is grafted onto a different species, it will not be considered a pure hadas, and cannot be used to fulfill the mitzvah.

The Shevus Yaakov notes that the Prague myrtle grows with three leaves at each point, like a hadas meshulash grows, and its leaves and twigs are indistinguishable from the traditional regular hadas in every way. However, the berry that grew on the new variety looked very different from the berry found on the traditional hadas, both in terms of its shape and its inside. He thereby surmises that this new myrtle is either a species different from the hadas, or, more likely, grew from a graft that caused its fruit to be different from a typical hadas.

The Shevus Yaakov then suggests that this new myrtle might be kosher anyway, based on the logic written by the Rema in answer to a question regarding the hadas that has seven leaves at each point, which is called by its own unique name, hadas mitzra’ah. The Rema questioned why this hadas is kosher for the mitzvah when it is called hadas mitzra’ah and not just hadas, implying that it is a variety. The Rema answered that the Torah never told us to use a hadas, but anaf eitz avos; therefore any species that is anaf eitz avos is kosher. Thus, the Prague hadas should be fine, notwithstanding its unusual berry. (However, note that the Kapos Temarim disagrees both with this assumption and the ruling.)

The Shevus Yaakov then wonders whether the Prague hadas might have been grown on a stock that was not a myrtle at all, and therefore it is not kosher for Sukkos use. He notes that he then discovered that he was not the first one to be asked about using this particular myrtle on Sukkos, but it had been asked of the great Maharash (the rebbe of the Shelah Hakadosh), who had been the posek of Prague in the 16th century. A talmid chacham wanted to use these new myrtles as hadasim, contending that they were preferred, since they would be fresh. The Maharash, however, concluded that the new myrtles should not be used, unless there are no hadasim of the traditional variety available, and this is the way the Shevus Yaakov concludes (Shu’t Shevus Yaakov 1:36). The Shaarei Teshuvah (646:4) suggests that these myrtles are not kosher as hadasim for Sukkos, even according to the Levush, because the rootstock that they are grown from might be of a tree that produces edible fruit, unlike the assumption of the Shevus Yaakov.

Notwithstanding the conclusion of the Shevus Yaakov and the Shaarei Teshuvah not to use the Prague hadasim, several later authorities ruled that they are kosher (Shu’t Chacham Tzvi #161; Shu’t Panim Meiros, Orach Chayim #9; Bikkurei Yaakov, 646:12; Biur Halacha 646:3 s.v. ho’il).

Conclusion

Our halachic literature is replete with shaylos regarding howcommunities fulfilled the mitzvah of arba’ah minim, under less than ideal circumstances. Looking around shul on Sukkos and seeing everyoneholding his own set of arba’ah minim, we should praise Hashemfor making it so easy today to fulfill these mitzvos.

A Place to Pray

At the beginning of parshas Vayeitzei, the Torah teaches that Yaakov reached “the place,” vayifga bamakom, and he stopped there, because the sun had already set (see Rashi). The Gemara explains the word vayifga to mean he prayed. As Rashi notes, the word bamakom means that he stopped at a specific place, yet the Torah does not identify which place. Chazal explain that he stopped at the place where the akeidah of his father had occurred, which is the place from which Adam Harishon was created and the location of the mizbei’ach of the Beis Hamikdash, toward which we daven three times daily.

To quote the Rambam: “The location of the mizbei’ach is very exact… this is the holy place where Yitzchak was bound… We have a tradition that the place where David and Shelomoh built the mizbei’ach is where Avraham had built the mizbei’ach upon which Yitzchak was offered, and is the same place where Noach built the mizbei’ach after he exited the ark. This is the same mizbei’ach upon which Kayin and Hevel offered, as did Adam Harishon, and it is the place from which he was created” (Hilchos Beis Habechirah 2:1-2).

The Gemara (Berachos 6b) asks: “What is our source that Avraham assigned a place for prayer?” The Gemara responds: “‘Avraham arose early in the morning and went to the place where he had stood before Hashem’ (Bereishis 19:27). The expression ‘where he had stood’ alludes to prayer, as it says, ‘Pinchas stood up and prayed’” (Tehillim 106:30).

We see that Yaakov stopped to pray because he was continuing the practice of his grandfather, Avraham. Thus, we can see the importance of where we pray and to associate our davening with the Beis Hamikdash.

Toward the Mikdash

The Gemara (Berachos 30a) teaches that someone davening outside Eretz Yisrael should face Eretz Yisrael, someone within Eretz Yisrael should face Yerushalayim, someone within Yerushalayim should face the Beis Hamikdash, and someone within the Beis Hamikdash should daven facing the Kodesh Hakadashim. It even specifies how one should face within the Kodesh Hakadashim. Someone who has this shaylah should not be reading my article for instructions, but should check the Gemara.

Window on Yerushalayim

The room where one is davening should have some windows or doors open that face Yerushalayim (Rambam, Hilchos Tefillah 5:6; Shulchan Aruch, Orach Chayim 90:4). This halacha is derived from a verse in Daniel (6:11): “He had windows open, facing Yerushalayim, in the upper story of his house, and three times a day… he prayed to Hashem” (Berachos 31a, 34b).

Why windows?

Rashi explains that looking heavenward through the windows influences one to be increasingly humble.

This ruling prompts the following question of the Magen Avraham (90:4): Why should we daven in a house that has windows? One is supposed to daven looking downward, to avoid distraction. So, logically, would it not be better if a shul deliberately did not have windows? Yet, Daniel davened in a room with windows.

The Magen Avraham answers that the windows are there so that if one is having difficulty concentrating while praying, he can look heavenward for inspiration. Similarly, Rashi may mean that immediately prior to davening one should look heavenward, but that, in general, while davening one should not be looking around or upward.

The Machatzis Hashekel shares with us several other reasons why davening should be in a room with windows. Some explain that this is a practical consideration, for ventilation, since being physically comfortable facilitates having proper focus when davening. Others explain that there should be windows facing Yerushalayim, not to provide a view, but to remind us that our tefillos travel first to Yerushalayim and then to heaven.

It is interesting to note that the Kesef Mishneh quotes a responsum of the Rambam, wherein he explains that the requirement that there be windows applies when davening at home, but not in shul. When the Mishnah Berurah (90:8) quotes this halacha, he similarly explains that this law applies primarily to a house, although he also applies the law to a shul, which is the prevailing custom. The later authorities note that having windows in a shul is implied by the Zohar, and contend that the Shulchan Aruch, the author of the Kesef Mishneh himself, followed this approach (Pri Megadim, Eishel Avraham 90:4; Kaf Hachayim 90:19).

Twelve windows?

The Zohar states that it is proper that a shul have twelve windows. Upon quoting this, the Beis Yosef says that the reason is based on deep kabbalistic ideas. Thus, although we do not understand the reason for this ruling, we should try to follow it.  Therefore, when Rav Yosef Karo, the author of the Beis Yosef, subsequently wrote the Shulchan Aruch, he ruled that a shul should, preferably, have twelve windows (Orach Chayim 90:4). The Pri Megadim rules that it does not make any difference which direction the twelve windows face, as long as at least one faces Yerushalayim. This is based on the fact that Daniel’s prayer room had a window facing Yerushalayim.

Outdoors

The Gemara mentions that it is inappropriate to daven outdoors (Berachos 34b). Although Chazal imply that Yaakov davened outdoors, his situation was different, because he was traveling. A traveler may daven outdoors, particularly if there is no more appropriate place for him to pray. In addition, even if a person has a place indoors to daven, but it is a place where he might be disturbed, it is better that he pray outdoors. If he has two places where he can daven undisturbed, one under trees and the other not, it is preferable to daven in the place where there are trees overhead (Pri Megadim, Chayei Adam, Mishnah Berurah).

Tosafos cites an opinion that the concern is not to daven in a place where someone will be disturbed by travelers, but one may daven outdoors in a place where he will not be bothered. The Beis Yosef (Orach Chayim 90) mentions this Tosafos, but questions it, implying in Shulchan Aruch that should someone have two choices where to daven undisturbed, one indoors and one outdoors, it is preferred to daven indoors.

Un-elevated Davening

The Gemara (Berachos 10b) rules that one should not daven from an elevated place. Quite the contrary, it is proper to pray from a low place, as the pasuk states, “from the depths I call to You, Hashem” (Tehillim 130:1).

Set place — Makom kavua

A person should daven regularly in the same place, as the Gemara states: Whoever establishes a place for his prayer, the G-d of Avraham will assist him. Furthermore, upon his passing, they will say about him that he was exceedingly humble and righteous and a disciple of Avraham Avinu (Berachos 6b).This passage of Gemara is subsequently quoted verbatim by the Rif and the Rosh, and its conclusion is quoted by the halachic authorities (Rambam, Hilchos Tefillah 5:6).

What does the Gemara mean when it says one should pray in an “established place”? This is the subject of a dispute among the rishonim; I will quote three approaches:

Daven in shul

(1) Rabbeinu Yonah explains that it means to pray somewhere set aside for prayer, such as a shul. When someone cannot daven in shul and must pray at home, he should have a set place where he can pray undisturbed (see Magen Avraham 90:33). Rabbeinu Yonah rules explicitly that an established place does not mean a specific place in a shul — the entire shul is established for prayer. In his opinion, there is no requirement to have a specific seat in shul where one always davens.

Furthermore, according to Rabbeinu Yonah, it does not seem to make any difference which shul one attends, since one is, in any instance, davening in a place that has been established for prayer. According to this approach, the special rewards that the Gemara promises to someone who establishes a place for his prayer are because he was always careful to daven in a shul.

Based on Rabbeinu Yonah’s approach, many rishonim note that someone who is unable to join the tzibur should still daven in a shul, rather than at home (Rabbeinu Manoach, Hilchos Tefillah 5:6, based on Rambam, Hilchos Tefillah 8:1; Shulchan Aruch, Orach Chayim 90:9).

Set place in shul

(2) Other rishonim disagree with Rabbeinu Yonah’s approach. The Rosh contends that, even in a shul, one should have a set place where he prays – the way we traditionally use the term makom kavua (Rosh, Berachos 1:7; Hagahos Maimaniyos, Hilchos Tefillah 5:10; Tur Orach Chaim #90). The poskim note that it need not be the exact same seat or location. Rather, anywhere within four amos (approximately seven feet) is considered to be the same place (Mishnah Berurah 90:60). If a guest is sitting in your seat, it is improper to ask him to sit elsewhere, since any nearby seat fulfills makom kavua.

For the occasion when someone must daven at home, he should have a set place where he can daven undisturbed (Magen Avraham 90:33). A woman should also have a set place in the house, out of the way of household traffic, where she davens undisturbed.

Daven in the same shul

(3) A third approach is advanced by Rabbeinu Manoach, who explains that establishing a place in which to daven means that someone should not daven randomly in different shullen, but should always daven in the same shul.

If we combine these three approaches, to guarantee the reward that the G-d of Avraham will assist him and that upon his passing, they will say about him that he was exceedingly humble and exceedingly righteous and a disciple of Avraham Avinu, a person should be careful to daven in the same place, in the same shul, whenever he can, and, certainly, on a regular basis.

The Shulchan Aruch (Orach Chayim 90:19) concludes that one should always have a set place to daven, whether at home or in shul. He does not mention davening in a specific shul, implying that he is following the view of the Rosh, the second of the three opinions that I quoted. This fits the Shulchan Aruch’s general halachic opinion of ruling according to one of the three, main accepted poskim of Klal Yisrael: the Rif, the Rambam and the Rosh.

Notwithstanding this halachic ruling, the authorities conclude that it is permitted to change your place (either the beis haknesses, or the place therein) when there is reason to do so (see Tur Orach Chaim 90; Shulchan Aruch, Orach Chayim 90:19). The Pri Megadim (Eishel Avraham 90:33) mentions that, in places that have two separate structures for the tefillos, one for winter and another for summer, changing from one to the other does not run counter to this halacha.

Rav Shelomoh Zalman Auerbach ruled that one may daven each of the three daily tefillos in different shullen, as well as the weekday prayers in one shul and the Shabbos tefillos in another (Halichos Shelomoh, Tefillah, Devar Halacha 5:2). It is unclear whether Rav Shlomoh Zalman understood that this approach accommodates Rabbeinu Manoach’s understanding of the Gemara, or that the Shulchan Aruch and later authorities do not follow Rabbeinu Manoach’s ruling.

Avoid idols

Another very important consideration is a ruling of the Avnei Neizer (Orach Chaim #32), that it is forbidden to daven in a room that is underneath the residence of a non-Jew, out of concern that the non-Jew has an idol or icon in his home, an assumption he makes in his time and place, 19th century Russia. In today’s world, this may still apply, depending on the faith of the upstairs neighbor.

Choice of Shullen

There is discussion in the Gemara and poskim concerning what is the preferred shul that one should choose to daven in. Of course, we are assuming that all the choices are conducive to davening with proper focus.

Closer or farther?

The Gemara (Bava Metzi’a 107a) quotes a dispute between Rav and Rabbi Yochanan, whether it is preferable to attend a shul that is closer, so as to regularly be among the first ten in shul (Toras Chaim, ad loc.), or a more distant shul, to receive reward for each step getting there. The poskim conclude that it is preferable to go to the shul that is farther away and receive the extra reward for every step (Magen Avraham 90:22; Graz 90:12). As we know, most people choose to daven at the most convenient, nearest shul. We should rethink this practice.

Larger or smaller?

Another consideration in choosing shullen is which one has the larger regular attendance. This is based on the concept of “berov am, hadras melech” – “a multitude of people is the King’s glory” (Mishlei 14:28).

Shul or Beis Hamedrash

The Gemara (Berachos 8a) asks: “What is the meaning of that which is written: ‘Hashem loves the gates of Zion more than all the sanctuaries of Yaakov’ (Tehillim 87:2)? Hashem loves the gathering places in which halacha is determined. This accords with what Rav Chiya bar Ami reported, quoting Ulla: Since the day that the Beis Hamikdash was destroyed, Hakadosh boruch Hu has nothing in His world but the four amos of halacha.” The Gemara says that some amora’im were particular to pray “between the pillars where they learned,” referring to the pillars upon which the study hall was supported (Rashi). The Gemara specified “between the pillars,” indicating that not only did they daven in the study hall, as opposed to the beis haknesses, but they davened in the exact location where they studied (Ma’adanei Yom Tov, Berachos 1:7:70).

We see from this that there is preference to daven in a beis hamedrash where Torah is studied, as opposed to a beis haknesses used solely for davening (see Shulchan Aruch, Orach Chayim 90:18).

What is the best choice for a makom kavua? The best option is for a person to daven in a beis hamedrash, particularly the one where he usually studies Torah, or in a beis haknesses, with a minyan. These choices are preferable to davening with a minyan elsewhere, such as at home, a simcha hall or an office building (Mishnah Berurah 90:27). However, none of these are greater priorities than the ability to concentrate on the davening. Therefore, should someone find that he cannot focus on his davening in shul but can do so in a minyan in someone’s home, it is preferable to daven with the home minyan (Mishnah Berurah 90:28).

If a person cannot attend shul to daven with a minyan, he should daven at home at the same time that they are davening in shul. This means that he should begin his shemoneh esrei at the same time that the congregation with whom he usually davens begins theirs. This is because the time that the tzibbur is davening is considered to be an “eis ratzon,” a time of Divine favor (Pri Chadash 90:9; Pri Megadim 90, Eishel Avraham #17).

Conclusion

Man was created by Hashem as the only creation that has free choice. Therefore, our serving Hashem and our davening is unique in the entire spectrum of creation. Three times a day, we merit an audience with the Creator of the Universe, a golden opportunity to praise, thank and beseech Hashem. As the Kuzari notes, every day should have three very high points — the three times that we daven. We should gain our strength and inspiration for the rest of the day from these three prayers.

Understanding how much concern Chazal placed on the relatively minor aspects of davening should make us even more aware of the fact that davening is our attempt at building a relationship with Hashem. How much preparation should this entail? Is it proper to merely jump into the davening without any forethought? Through tefillah we save lives, bring people closer to Hashem, and overturn harsh decrees. Certainly, one should do whatever one can to make sure to pay attention to the meaning of the words of one’s tefillah. One of the necessary preparations for tefillah is choosing where to daven. This sets the tone and contributes towards a successful prayer session. Let us hope that Hashem accepts our tefillos, together with those of all Klal Yisrael!

Calendar Controversy

When Yamim Nora’im “Fell” on Disputed Days

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

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

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

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

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

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

Creation of the Jewish Calendar

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

·         Determining whether each month is 29 or 30 days.

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

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

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

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

In Eretz Yisrael

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

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

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

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

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

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

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

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

The Controversy

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

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

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

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

Enter Rav Saadia

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

Pronouncing his Verdict

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

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

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

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

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

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

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

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

Ben Meir’s Retort

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

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

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

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

Two Different Pesachs

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

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

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

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

Pruzbul

Foreword

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

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

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

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

How could he?

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

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

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

How did he?

How does a pruzbul work?

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

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

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

Non-written loans

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

Non-pruzbul

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

(1) Beis din

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

(2) After – payable after shemittah

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

(3) Condition

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

(4) Kollateralized

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

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

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

Paying BACK (or BACC)

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

What type of beis din?

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

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

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

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

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

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

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

From a distance?

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

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

Remember Rome!

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

One pruzbul covers all

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

Oral pruzbul

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

Postdated pruzbul

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

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

Borrowing tenants

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

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

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

Why land?

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

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

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

Lost my pruzbul

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

Conclusion

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

Otzar Beis Din or Heter Otzar Beis Din?

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

(1)   Laws of the Land

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

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

(2) Laws of the Fruit

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

a.       Commerce with Shemittah Produce

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

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

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

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

c.       Hefker – Ownerless

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

The Otzar Beis Din

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

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

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

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

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

The Development of a ‘Modern’ Otzar Beis Din

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

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

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

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

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

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

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

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

The Heter Otzar Beis Din Controversy

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

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

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

Conclusion

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

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


[1] Avodah Zarah 15b.

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

[3] Rambam, Hilchos Shemittah 4:1.

[4] Ibid., 6:1.

[5] Mishnah Shevi’is 8:3.

[6] Yerushalmi Shevi’is 7:1.

[7] Mishnah Shevi’is 6:5.

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

[9] Rambam, Hilchos Shemittah 4:29.

[10] Sefer Minchas Yerushalayim, page 161.

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

[12] Sefer Minchas Yerushalayim, page 181.

[13] Katif Shevi’is, page 125.

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

[15] Sefer Hashemittah, 21.

[16] Mishpetei Aretz, page 103.

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

What constitutes talebearing?

Question #1: Talebearing — Rechilus

“What is the legal definition of rechilus?”

Question #2: Loshon hora

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

Question #3: Motzi shem ra

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

Introduction

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

Broader definitions

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

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

Hurting feelings, Betraying a secret

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

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

Ask your Rabbi

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

What is talebearing?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lo sa’amod

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

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

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

More on lo seileich rachil, which includes loshon hora

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

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

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

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

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

Calming someone down

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

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

Conclusion

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

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

Mezuzah on a Rental

Question #1: Tenancy

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

Question #2: Temporary Dwelling

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

Question #3: Mezuzah in a Rehab

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

Basic information:

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

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

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

The Gemara’s statement

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

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

This passage of Gemara mentions three halachos:

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

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

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

More details

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

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

What difference does thirty days make?

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

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

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

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

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

What if I borrow?

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

Is the requirement for a mezuzah immediate?

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

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

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

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

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

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

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

When should I actually put it up?

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

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

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

1. Put up the mezuzah immediately.

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

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

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

Temporary dwelling in Eretz Yisrael

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

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

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

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

Borrowing in Eretz Yisrael

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

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

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

The “inn” thing

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

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

Inn chutz la’aretz

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

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

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

A hut?

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

A mobile home?

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

A boarding house

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

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

A guest house

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

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

A rehab center

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

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

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

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

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

Mezuzah rewards

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

image_print