The Lost Gift: Parashas Mishpatim and Shomrim

In this parshas Mishpatim, the Torah discuss the responsibility that a shomer assumes for someone else’s property. Does a shomer always assume this much responsibility? Stay tuned and find out!

While learning in my study one day, I was greeted by a knock at the door. I opened the door to find two women, Rivkah and Leah, standing in the doorway.

“Rabbi,” Rivka began somewhat apprehensively, “We have a shaylah that we need to ask you. I was supposed to bring a present to Lakewood for Leah’s daughter, but, somehow, it got along the way. I feel responsible. Leah feels that I am not responsible and I should not feel any obligation to compensate her daughter, but I feel that I should.”

“If anyone is responsible it is I,” replied Leah. “I keep insisting that Rivka should not pay, and she keeps insisting that she should. We decided that we would refer this to the Rav to decide.”

The case turned out to be a very interesting halachic shaylah.

A family member bought a very expensive wedding gift for Leah’s recently married daughter, who now lives in Lakewood. Leah heard that Rivka’s husband was driving to Lakewood, so she called to ask if he could bring the gift with him. Rivka suggested that Leah drop by and put the gift in the trunk of the car, so that they wouldn’t misplace it.

Upon reaching Lakewood, Leah’s daughter arrives to pick up the package. Rivka’s husband checks the trunk of the car, but the gift is not there!! He calls Rivka, who in turn calls Leah, who says that she definitely placed the gift in the trunk. The gift seems to have inexplicably disappeared!

Who, if anyone, is responsible to replace the gift?

I asked for some time to think about the shaylah. In the interim, I needed to address some pertinent questions, which provides an opportunity to review the relevant halachos.

There are several halachic areas we need to clarify:

To what extent are you responsible for replacing an item that you were watching without remuneration?
If you permit someone to place an item in your house or car, does that mean that you are now responsible if the item is damaged, lost or stolen?
If you agree to transport an item as a favor, is there an assumption of responsibility, and if so, to what extent?

WHAT IS A SHOMER CHINAM AND TO WHAT EXTENT IS HE RESPONSIBLE?

Someone who assumes responsibility to take care of an item, but receives no benefit for doing so, is called a shomer chinam. He is responsible if the item becomes damaged, stolen, or lost because of his negligence, but not if he took proper care of the item.

EXAMPLE: Binyomin entrusted money to a shomer for safekeeping. When he came to collect his money, the shomer replied that he does not remember where he put it. Rava ruled that not knowing where you put something is negligent and the shomer must pay (Bava Metzia 42a).

WHAT IF HE DID NOT EXPRESSLY ASSUME RESPONSIBILITY?

A shomer may specify that he assumes no responsibility for an item (Mishnah, Bava Metzia 94a). Furthermore, if he clearly did not assume responsibility, he is also not obligated to pay.

EXAMPLE: While fleeing from the Napoleonic wars, Naftali buried valuables in a pit in his backyard, and offered Asher to hide his valuables there, too. The two of them fled to a safer area, hoping to return one day to unearth their valuables. Fortunately, the war ended, and they were able to return. Naftali was eager to unearth the valuables and give Asher back his money, but Asher was busy taking care of other matters. Naftali sent Asher a message that he was unearthing the valuables, but Asher did not arrive immediately. By the time Asher arrived, his valuables had disappeared. Does Naftali bear responsibility?

Naftali and Asher addressed the question to Rav Yaakov of Lisa, the author of Nesivos Hamishpat (291:2). The rav ruled that Naftali is not obligated to pay any damages, since he never assumed any responsibility for Asher’s valuables but merely made his hiding place available.

Thus, we have established that if a shomer assumes responsibility, he will have to pay for damage caused by his negligence, but if he does not assume responsibility, he does not have to pay.

However, our case is somewhat different from the case of the Nesivos. In his case, Asher knows that Naftali will not be around to supervise his property. In our case, Leah had accepted the gift on behalf of her daughter and Rivka suggested that it be placed in her car. Does that make Rivka responsible to replace it if it is lost?

Or, as we phrased our second question above: If you permit someone to place an item in your house or car, does that mean that you are now responsible if the item gets damaged, lost or stolen?

The Gemara raises the following shaylah which affects our question:

Daniel asked Shlomo if he could leave his sheep and some equipment in Shlomo’s yard. Subsequently, Shlomo’s dog, Fido, bit Daniel’s sheep; the next day, someone stole the equipment. Assuming that Shlomo was negligent, must he pay for the damages?

The question is whether Shlomo ever assumed responsibility for Daniel’s property. If he permitted Daniel to place the sheep and the equipment in his yard, does that mean that he assumed responsibility for this property? The Mishnah (Bava Kamma 47a) quotes a dispute between Rebbe and the Chachomim as to whether we assume that Shlomo took responsibility.

HOW DO WE PASKIN?

There are three opinions:

Some rule that Shlomo is responsible for the damage. They contend that when someone grants permission to place items on his property, he assumes responsibility to look out for the items.
Others contend that Shlomo is not responsible for the stolen equipment, but he is responsible for Fido biting the sheep (Shach 291:9). Permitting someone to place items on his property doesn’t mean that he assumes responsibility. However, Shlomo is liable if his animal caused damage to property that he allowed onto his premises.
Shlomo does not need to pay at all since he never accepted responsibility (Shulchan Aruch, Choshen Mishpat 291:3). (According to this opinion, even though Shlomo’s dog bit Daniel’s sheep, Shlomo is not responsible for damage done by his own animal on his own property.)

The Shulchan Aruch rules like the third opinion that Shlomo is not responsible, although other poskim disagree. Thus, we see that although someone permits you to put something in his house or car, you cannot assume that this means he is taking responsibility for it. Thus, placing the gift in Rivka’s car does not, necessarily, mean that either Rivka or her husband is responsible for the gift.

However, there is a difference between Leah’s gift and Daniel’s sheep, other than the fact that one of them bleats. I am going to use another din Torah to demonstrate the difference between the two.

While Levi was packing his donkey to travel to the next city, Yehuda asked if he could send his shoes along. Levi responded, “You can put them on top of the donkey.” Yehuda complied, and Levi rode off without tying the shoes adequately to the donkey. Subsequently, when the shoes were lost, Levi claimed that he never assumed any responsibility for Yehuda’s shoes.

Is Levi responsible to pay Yehuda for his shoes? After all, he never told Yehuda that he was assuming responsibility; he simply allowed Yehuda to place his shoes on the donkey.

The Rosh (quoted by Tur Choshen Mishpat Chapter 291) ruled that Levi is indeed responsible, even though he never told Yehuda that he was assuming responsibility.

Why are Yehuda’s shoes different from Daniel’s sheep, where we assumed that Shlomo took no responsibility? The difference is that when Levi transports the shoes with him, Yehuda will no longer be able to watch them. Under these circumstances, we assume that Levi accepted responsibility, unless he specifically stated at the time that he did not. However, when Daniel puts his sheep into Shlomo’s yard, there is no reason why Daniel cannot continue to be responsible to take care of his sheep. Thus, there is nothing in Shlomo’s action that implies that he is assuming responsibility.

Based on the above analysis, it would seem that Rivka is indeed responsible since she made Leah the offer of placing the gift in her car. This implies that Rivka assumed responsibility.

However, Rivka’s gift is different from Yehuda’s shoes for two reasons:

Rivka’s gift was not put into a place that requires any type of supervision. The locked trunk of a car is a secure place to leave items. Thus, it is less certain that we can assume that Rivka accepted responsibility.
More importantly, Rivka told Leah to put the gift in the car, but also told her that her husband, not she, was going to Lakewood. Thus, Rivka certainly was not assuming responsibility for bringing the gift to Lakewood. We also cannot say that her husband assumed responsibility, when he never agreed expressly to take the package. Thus, it would seem that neither Rivka nor her husband is responsible. However, if her husband agreed to take the package, he would be responsible if, indeed, he had been negligent. Since we do not know where the package went, we would probably assume that the package disappeared because of some negligence on his part.

DOES THIS MEAN THAT LEAH IS RESPONSIBLE TO PAY HER DAUGHTER FOR THE GIFT?

Indeed it might. When Leah accepted the gift on her daughter’s behalf, she assumed responsibility as a shomer chinam. We now have a new shaylah: Did she discharge this responsibility when she placed the gift in Rivka’s car for the trip to Lakewood?

The Gemara records an interesting parallel to this case.

At the time of the Gemara, houses were not particularly secure places to leave valuables. For this reason, the proper place to store money and non-perishable valuables was to bury them in the ground. A shomer chinam who received money but did not bury the money would be ruled negligent, if the money was subsequently stolen (Bava Metzia 42a).

The Gemara mentions a case when this rule was not applied:

Someone entrusted money to a shomer who gave it to his mother to put away. His mother assumed that it was her son’s own money, not money that he was safekeeping for someone else, and therefore placed it in his wallet rather than burying it. Subsequently, the money was stolen and all three of them ended up appearing before Rava to paskin the shaylah.

Rava analyzed the case as follows: The shomer is entitled to say that he has a right to give something entrusted to him to a different member of his family for safekeeping. Furthermore, there is no claim against him for not telling his mother that the money was not his, because she will take better care of it assuming that it was his. Therefore, the shomer did not act negligently. The mother also did not act negligently – based on the information she had, she acted responsibly. Thus, neither one of them is obligated to pay (Bava Metzia 42b).

The principles of this last Gemara can be applied to our case. Neither Leah, nor Rivka, nor Rivka’s husband acted negligently in our case. Leah gave the gift to someone in a responsible way to get it to Lakewood. We have already pointed out that neither Rivka nor her husband ever assumed responsibility for the gift. Furthermore, neither one of them acted irresponsibly. Thus, it seems to me that none of the parties involved is halachically obligated to make restitution.

There is actually a slight additional angle to this story. Leah is, technically, obligated in an oath (a shevua) to her own daughter to verify that she indeed placed the gift in the car. However, since it is unlikely that Leah’s daughter will demand an oath from her, she is not obligated to pay.

Needless to say, Leah will apologize to her daughter even if she has no technical responsibility, and will probably offer her daughter a replacement gift. Hopefully her daughter will accept the loss of a gift as a minor mishap, and put it out of her mind.

In general, we should be careful when we assume responsibility for items belonging to others, to take good care of them and not leave them around irresponsibly or near young children. We should pray to be successful messengers when entrusted with other people’s property.

Do People Live in the Zoo, Part II

Last week, I raised the following questions:

Question #1: Checking inside the eruv

“Can the eruv fences, walls, and wires be checked religiously every week, yet the eruv is invalid?”

Question #2: Shabbos in a warehouse

“May one carry in a warehouse on Shabbos?”

Question #3: Do people live in the zoo?

What do the previous two questions have to do with the title of this article?

One may carry inside such an area only when it is no larger than 5000 square amos (Mishnah Eruvin 23a), which equals approximately 1000* square meters or 10,000-11,000 square feet. For the balance of this article, I will refer to an area larger than a beis sasayim, that is, one that contains more than 5000 square amos, as a large area, and any area smaller than this as a small area. There is another factor that must be met to permit carrying in a small area that is not enclosed for residential use – its length may not exceed twice its width by more than one amoh (Mishnah, Eruvin 23a).

We will now continue our topic from where we left it last week.

Water sources

If a body of water, such as a lake or stream, is within an enclosed area, is the area still considered mukaf ledirah? Similarly, if an area was mukaf ledirah and then became flooded, may one still carry there (Eruvin 24a-b)?

On the one hand, since people do not live under water one could argue that any area covered by water is, by definition, not suitable for human habitation. On the other hand, mankind cannot survive without water; a nearby source of potable water is definitely a residential need.

The halachah is that water covering the ground does not usually create a problem, but there are three factors to be considered:

The quality of the water – can people use it?

How large an area is covered by water?

How deep is the water?

If the water is deep, not usable and covers a large area (more than 2500 square amos), that area is not mukaf ledirah, and the enclosures surrounding it do not permit one to carry there.

How deep?

According to most authorities, one need be concerned only when the water is ten tefachim deep, which is about 80 centimeters or about 2.5 feet (Shulchan Aruch, Orach Chayim 358:11). Others are more stringent and are concerned when the water is only three tefachim deep (quoted in Biur Halachah ad loc.).

Water quality

What is meant when we say that the water is usable? This issue is a subject of dispute among both early and late halachic authorities. There are two basic approaches, a stricter approach, which defines usable water as being drinkable (Rashi, Eruvin 24b s.v. Dechazi), and a more lenient approach, which rules that water suitable for laundry and similar uses is considered usable (Rashba, Avodas Hakodesh, Beis Nesivos 1:14:90 and 3:3:144; Ritva, Eruvin 24a).

In today’s world, this dispute would, seemingly, have a very common application. The run-off from rainstorms in suburbia crosses fertilized and pesticide-treated lawns. This water is definitely unsafe to drink. As a result, water accumulating to an appreciable depth over a large area could invalidate an eruv. However, when the water looks clear and is therefore suitable for laundry use, the Rashba would rule that it would not invalidate the eruv, even if it is deep and covers a large area. Thus, whether this water invalidates the eruv should be dependent on the dispute between Rashi and the Rasha.

How do we rule?

There is an interesting halachic curiousity that results here. Two of the most respected late halachic authorities are the Aruch Hashulchan and the Mishnah Berurah. In the vast majority of halachic issues, the Aruch Hashulchan rules more leniently than does the Mishnah Berurah. However, this is one of the instances in which the Mishnah Berurah (Shaar Hatziyun 358:81) rules more leniently, permitting carrying within an enclosed area that contains non-potable water that may be used for laundry or for animals to drink. The Aruch Hashulchan (358:23) requires that the water be potable.

Water seclusion

What does one do if there is an area of land covered by water in a way that it has the halachic status of a carmelis? The halachah is that, as in the instance of other areas that are not mukaf ledirah, carrying is prohibited in the adjacent residential area only when the area covered by water is not separated by a mechitzah. For example, a stream that contains unusable water runs through an area surrounded by an eruv. Does this render the entire eruv pasul?

One possible solution: To construct a tzuras hapesach that separates the prohibited area from the permitted.

A second possible solution: If the banks of the stream are sufficiently steep, these banks themselves serve to divide the water area from the eruv area and no further adaptation is necessary.

The city eruv

At this point, let us examine the first question I noted above:

“Can the eruv fences, walls, and wires be checked religiously every week, yet the eruv is invalid?”

We now are equipped to answer this question. Indeed, if the area within the eruv includes a large area that is planted or contains non-usable water, that area must be cordoned off from the eruv area in a halachically acceptable fashion. This requires essentially creating some type of halachically-approved divider. Otherwise, the eruv is invalid, and one may not carry there.

Thus, even if an eruv’s perimeters somehow, miraculously, survived the onslaught of a hurricane of the magnitude of Sandy, one will still not be permitted to carry within the eruv if there are areas of deep, unusable water that are more than ~5500 square feet.

Planting and the city eruv

Some authorities rule that planting an area is less of a problem in a city eruv than it is in someone’s private area. This is based on the reasoning, mentioned in the Gemara, that planting in a karpif invalidates an individual’s residential “wall.” However, if an entire city was enclosed, the planting of one individual cannot invalidate the enclosure. (Shu’t Dvar Shmuel #259, who introduces this approach, described planting which, by its nature is temporary, inside a city wall. It may not follow that this can be compared to a modern city and its eruv.) There are authorities who dispute this approach and rule that planting invalidates any type of enclosure (Maamar Mordechai 358:14; Chazon Ish, Orach Chayim 88:25).

Does an overgrown area invalidate an eruv?

Thus far, we have learned how planting or water can invalidate an eruv. What is the halachah if an area becomes overgrown with weeds or other shrubbery? Will this invalidate an eruv?

The late authorities debate whether only a planted area invalidates an eruv, or even an area that becomes overgrown on its own. I leave this question for the local eruv committee to discuss with its halachic authorities.

Do people live in the zoo?

The preceding discussion about mukad ledirah serves as an introduction to understanding the question, “Do people live in the zoo?” a practical question that was raised as early as the eighteenth century. The author of a series of scholarly Torah works, the Ohr Chodosh, Rabbi Elazar ben Elazar, sent a halachic inquiry to his mechutan, the Noda Biyehudah, Rav Yechezkel Landau, the chief rabbi of Prague. Where the Ohr Chodosh was then rav, in Cologne, there was a menagerie of wild animals within the area that they wanted to include within the town’s eruv. Based on his analysis of the dfference between the cases that are considered mukaf ledirah and those that are not, the Ohr Chodosh wanted to permit the zoo area as mukaf ledirah. He begins his analysis with the question:

Why is a vegetable garden or wood storage area considered non-residential, and yet an area in which animals are penned (a dir) is treated as residential?

The Ohr Chodosh, himself, felt that the dwelling of an animal is considered a residential use, and that this is true even regarding the dwellings of wild animals. Therefore, if someone builds a zoo with enclosures for the tigers, lions, bears and other species, each enclosure has the status of mukaf ledirah and can be more than a beis sasayim without prohibiting carrying.

A different scholar, identified in the responsum simply as Rabbi Nissan, disagreed with the Ohr Chodosh, contending that animal pens are considered mukaf ledirah only when they include a hut or other type of residence where the shepherd lives. He notes that Rabbeinu Yonasan, the major commentary on the Rif on Eruvin, mentions this distinction. The Ohr Chodosh retorted that he found this restriction, that a dir is considered mukaf ledirah only when it contains a residence of sorts for the shepherd, in no other halachic source, and therefore concluded that Rabbeinu Yonasan’s ruling is a minority opinion. The Ohr Chodosh contended that most authorities would accept his analysis.

On Rosh Chodesh Nisan 5548 (1788), the Noda Biyehudah answered the letter of the Ohr Chodosh, siding with Rabbi Nissan. Although the Noda Biyehudah agrees that the other authorities may not accept Rabbeinu Yonasan’s requirement of a guard hut, the key difference between a dir and a vegetable patch is that a dir requires a human presence, whereas a vegetable patch does not require a human presence. The Noda Biyehudah contends that an enclosure for wild animals will not be considered mukaf ledirah, and will be prohibited if the area is more than a beis sasayim, since people do not dwell among wild animals.

In his responsum, the Noda Biyehudah does not discuss what is the exact difference between a dir and a ginah, but other authorities do. The Tosafos Shabbos explains the difference to be that a dir is used by people at night, whereas a ginah is used only during the daytime. The Biur Halachah explains the dissimilarity in a different way, contending that a dir is adjacent to the house, and includes milking and other uses that are domestic. Therefore, its use is incorporated with the use of the residence.

Roofed

From the case of burgenin and some others, it appears that even a roofed area can be considered not mukaf ledirah. This is the opinion of most halachic authorities, although one major authority feels that burgenin is an exception, and that most roofed areas can be considered mukaf ledirah.

Based on this discussion, one can ask whether a warehouse, larger than a beis sasayim, that does not contain any type of residence, is considered mukaf ledirah. The use of a warehouse is not domestic and therefore could be conceived as not mukaf ledirah.

This question involved a dispute between the Mishnah Berurah and the Chazon Ish. The Mishnah Berurah holds that since a warehouse is a strongly constructed building, it qualifies as mukaf ledirah, regardless as to why it was constructed and how it is currently used. The Chazon Ish challenges this position, insisting that unless a structure includes some place to be used for sleeping, it is not considered mukaf ledirah, unless it meets one of the categories that the Mishnah or Gemara qualify as mukaf ledirah.

The dispute between the Mishnah Berurah and the Chazon Ish should affect only the status of the warehouse itself, and that only if it is larger than a beis sasayim. However, since a warehouse is completely enclosed its status will not prohibit an adjacent area. Thus, the area within the eruv surrounding the warehouse will remain unaffected by its status.

Shuls, batei medrash and bathhouses

The Aruch Hashulchan notes that shuls, batei medrash and bathhouses are all buildings whose purpose is not for residential purpose. One is not permitted to use a shul or a beis medrash for personal use, and a bathhouse is also not used for typical residential use. The Aruch Hashulchan therefore concludes that all of these areas do not qualify as mukaf ledirah, unless they include some type of residence for the building’s caretaker.

Conclusion

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 melachah, which implies purpose and accomplishment. Certainly no more calories are expended when carrying from a reshus hayachid to a reshus harabim than when carrying a heavier item a greater distance within a reshus hayachid; yet, the first activity desecrates Shabbos and the second is permitted.

The goal of Shabbos is to emphasize Hashem’s rule as the focus of creation by refraining from our own creative acts (Rav Samson Raphael Hirsch Commentary to Shemos 20:11). Creating a beautiful Shabbos entails much planning and organization, realizing that preparation for Shabbos includes studying all the melachos of Shabbos. This helps us have a greater appreciation of Shabbos, and to get the maximum joy out of this special day.

* The measurements used in this article are meant only for rough calculation.

Do People Live in the Zoo?

Question #1: Checking inside the eruv

“Can the eruv fences, walls, and wires be checked religiously every week, yet the eruv is invalid?”

Question #2: Shabbos in a warehouse

“May one carry in a warehouse on Shabbos?”

Question #3: Do people live in the zoo?

What do the previous two questions have to do with the title of this article?

Answer: Invalidating an eruv from inside

With the direction of his rav, Yankel has joined the committee of makers and shakers working on building an eruv in his hometown. He now knows that the area in which he currently lives has the halachic status of a karmelis, an Aramaic word meaning an area in which one may not carry, but which can be enclosed to permit carrying. Creating the enclosure in a halachically approved way is what one does when building an eruv.

One of the benefits of his new project is that Yankel learns much about the laws of eruv. Among the laws he discovers is an entire area of halachah with which he was not familiar – that enclosing an area does not always permit carrying. Often, there is an area within the eruv that precludes carrying there. These areas are often called karpif, although Yankel discovers that this term is also not really accurate. As a result of his curiosity, he studies the relevant source material in the second chapter of Mesechta Eruvin, a topic that he, like most people, had never studied during his years in yeshivah.

What is a karpif?

Although min hatorah one may carry within any enclosed area, Chazal permitted carrying in a large area only when the enclosing of the area serves a residential purpose, which is called mukaf ledirah. If the enclosure was not mukaf ledirah, the area inside is also considered a karmelis in which one may not carry.

Technically, the word karpif means an enclosure outside the city in which one stores felled wood (Rashi, Eruvin 18a). However, the term is generally used to mean an enclosed area that is not mukaf ledirah.

Yankel learned that if an enclosure does not serve a residential purpose, one may carry within it only when it encloses an area that is no larger than the size of the courtyard of the mishkan, which was 50 amos (cubits) wide and 100 amos long, the size of 5000 square amos (Mishnah Eruvin 23a). An area this size is called a beis sasayim, an old farmers’ term based on how much seed they would plant there, and equals approximately 1000* square meters or 10,000-11,000 square feet. For the balance of this article, I will refer to an area larger than a beis sasayim, that is, one that contains more than 5000 square amos, as a large area, and any area smaller than this as a small area.

There is another factor that must be met to permit carrying in a small area that is not enclosed for residential use – its length may not exceed twice its width by more than one amoh (Mishnah, Eruvin 23a).

Why is a small karpif permitted?

Why may one carry in an area that is not mukaf ledirah when it is 5000 square amos or smaller? Was this size chosen arbitrarily?

Chazal permitted carrying in a small area, even when it is not mukaf ledirah, for the following reason: Since no one is permitted to live in the courtyard of the mishkan, the curtains that surround it do not make it mukaf ledirah. This would mean that carrying within the mishkan would be under the heading of a rabbinic prohibition. Yet this carrying was necessary on Shabbos for the regular functioning of the mishkan. Rather than treat the mishkan as an exception to the halachah, Chazal permitted carrying in any area that is this small, even when it is not mukaf ledirah (see Graz, Orach Chayim 358:3).

What is mukaf ledirah?

The definition of what qualifies as mukaf ledirah and what does not is, at times, not obvious. The Gemara (Eruvin 22a) itself states that there are instances when an enclosed area is roofed and resembles a building, yet it is considered not mukaf ledirah, and there are places that are open-air and yet have the status of mukaf ledirah. The Mishnah (Eruvin 18a) mentions four cases that qualify as mukaf ledirah, even though (according to Rashi) there is no roof over them. They are:

(1) Dir — a corralled area that one intends to plant eventually. At the moment, it is fallow, and one is grazing one’s livestock there, so that they naturally fertilize the field.

(2) Sohar, which is, according to Rashi, an area where the townspeople graze their animals, and, according to the Rambam, a prison.

(3) Muktzah — a backyard area.

(4) Chatzeir, a front yard.

The Ritva (Eruvin 22a) explains that the list is progressively more obvious; meaning that the first case, that of dir, is the least obvious “residential” area. Indeed, much halachic literature is devoted to explaining why an area enclosed for animals is considered residential, when, as we will soon see, areas enclosed for trees or vegetation are not.

Non-residential enclosures

Our next objective is to define what is considered a non-residential enclosure, eino mukaf ledirah, in which one may not carry unless it is small, as defined above. The Mishnah and the Gemara teach that several different types of enclosed areas are not mukafim ledirah. As I mentioned above, one of these is a karpif, an enclosure outside the city in which one stores felled wood (Rashi, Eruvin 18a). Similarly, a fenced-in orchard (Rambam, Hilchos Shabbos 16:1, based on Eruvin 25b), a vegetable patch or a grain field (Mishnah Eruvin 18a; Eruvin 23b) are not mukaf ledirah, even when they contain huts, called burgenin, for the watchmen (Eruvin 22a). In all of these instances, the fence built around the perimeter does not serve a residential need. Even the watchman’s hut is there not to serve as a residence, but to allow the watchman to remain nearby (Rashi, Eruvin 15a). (We should note that some authorities [Tosafos Shabbos, 358:1; Pri Megadim, Eishel Avraham 358:1] contend that if the watchman sleeps overnight in the hut, it is considered a residence. In their opinion, a burgenin is considered not mukaf ledirah because one uses it only in the daytime.)

We need to understand exactly why certain uses are considered residential, and others are not. However, prior to explaining these ideas, we need to clarify another aspect of this discussion.

Mixed neighborhoods

What is the halachah if an enclosure comprises both an area considered residential and an area that is not? For example, Yankel’s neighbor, Shmerel, has a large fenced-in backyard, which his family uses predominantly for barbecues and other recreation. It sounds as if this area should be treated as mukaf ledirah, even if it is larger than 5000 square amos. Indeed, its proximity to the house and its use would make this backyard mukaf ledirah.

However, this yard also includes a section planted with various spices and vegetables. As we learned above, a planted area is not mukaf ledirah. Do we consider the entire yard mukaf ledirah or not? May Shmerel’s family carry in the backyard? In the course of Yankel’s studying the laws of Eruvin, he discovered that carrying in his neighbor’s fenced-in yard might be prohibited!

A breached eruv — Nifratz bemilu’oh

To answer these questions, we need to explain a principle, called nifratz bemilu’oh, literally, breached in its entirety. Whenever an area in which one would otherwise be permitted to carry is open to an area where carrying is forbidden, the halachic result is that one may not carry in the otherwise permitted area (see Eruvin 25b). Thus, if it is prohibited to carry in the planted area, and the recreational part of Shmerel’s yard is nifratz bemilu’oh to the planted area, one cannot carry in any part of Shmerel’s yard (Shulchan Aruch, Orach Chayim 358:10). As we will soon see, this law has major ramifications for city eruvin also.

What is called “breached?”

Our next question, germane both to Shmerel’s yard and to our city eruv, is: How big a breach prohibits carrying?

There are two ways that a breach forbids carrying. One is when it is greater than ten amos, approximately seventeen feet or five meters. The other way is when the breach is smaller than ten amos but it comprises an entire side of the otherwise-permitted mukaf ledirah area. For example, if an otherwise-permitted rectangularly-shaped area is mukaf ledirah on three of its sides, but the remaining unwalled side opens to an area in which carrying is forbidden, even if the unwalled side is less than 10 amos wide one may not carry in the mukaf ledirah area.

In terms of Shmerel’s yard, this means that if the recreational part is not isolated from the garden, and the garden is large enough to prohibit carrying, the entire yard is prohibited. The same concept is true in a city eruv, as we will soon see.

How large a garden?

Before we can issue a ruling regarding Shmerel’s garden, we need one more piece of information. How large a garden will prohibit carrying?

The Gemara (Eruvin 23b-24a) states that if a planted area is larger than 5000 square amos, one may not carry in any part of the backyard. Even when the planted area is smaller than 5000 square amos, if the planted part is larger than the rest of the yard and the entire yard is larger than 5000 square amos, one may not carry in any part of it.

Healing a breach

Yankel and Shmerel measure the vegetable garden and the yard and discover that, lo and behold, one may not carry in Shmerel’s yard. Is there any way to fix the above problem to permit carrying within the recreational part of the yard?

Yes, there are at least two ways that one can do this. The first is to separate the recreational area from the planted area, and the second is to subdivide the planted area until it is small enough not to create a halachic issue. There are several ways of implementing either of these methods, but discussing them is beyond the scope of this article.

A flower garden

What is the halachah if Shmerel’s garden consists of a flower garden, rather than a vegetable patch? Does his flower garden invalidate the area for carrying, just as the vegetable garden did?

The halachic issue here is the following: People do not live in vegetable patches, but they do enjoy looking and smelling pretty and fragrant flowers. Is this a sufficient reason to consider a flower garden mukaf ledirah?

This matter is a subject of dispute, with different authorities on, shall we say, different sides of the fence. Although most authorities rule that a flower garden does not present a problem (see also Meiri, Eruvin 24a), the Divrei Chayim of Sanz (Shu’t Divrei Chayim, Orach Chayim 2:28) and the Sha’ul Umeishiv (Shu’t 3:131) were among the authorities who ruled that a flower garden will prohibit an eruv. Someone with a similar shaylah should refer it to his own rav or posek.

Fair lawn

As I mentioned above, the Gemara rules that a large, planted area for vegetables or grains will invalidate the eruv. Several halachic authorities say that a grass cover does not invalidate an eruv, since people relax by sitting or lying on the grass. However, can this logic apply when someone does not permit anyone to walk across their expensively tended lawn? This phenomenon, not uncommon in a modern suburban setting, implies that the contemporary lawn of this nature may not be considered mukaf ledirah and can therefore create a problem, if it is larger than a beis sasayim. I leave this question for the eruv movers and shakers to discuss with their posek.

Fenced first

Another halachic factor is that mukaf ledirah requires that the enclosure must have been constructed initially for residential use. This is called pasach u’le’besof hukaf, literally, he opened the entrance first and then afterwards enclosed the area (Eruvin 24a). However, if the area was enclosed when it did not yet have a residential use, providing it with a residential purpose later will not render the area one in which carrying is permitted.

For example, if Shmerel had originally decided to fence in his large yard because he wanted to plant vegetables, and only later decided to use it for domestic purposes, one may not carry in the yard, since its enclosure was originally not for domestic use. (There are ways to rectify such a situation, but this is a topic that we need to leave for a different time.)

Bitul mechitzos

We have yet to discuss another related question: What is the halachah if an area was originally mukaf ledirah, and then someone planted within the mukaf ledirah area? Does this now render the area a karmelis and prohibit carrying? As an example, let us imagine the following scenario: When Shmerel built the fence around his yard, his intention was for residential purposes, and it therefore had a status of mukaf ledirah. At this point, one could carry in the yard. Later, Shmerel decided to plant a large vegetable garden in the yard. Do we say that the yard remains permitted?

The halachah is that planting grain or vegetables invalidates the enclosure, and it is prohibited to carry in his yard.

However, there is an interesting halachah here. Not all planting invalidates the external walls. For example, the Gemara (Eruvin 23b) states explicitly that if one plants a large area of trees, one may continue carrying in the area. This ruling is very interesting, especially in light of the fact that a fence surrounding an orchard is not considered mukaf ledirah.

Trees versus veggies

What is the different between trees, which do not invalidate the eruv, and grain and vegetables, which do?

Rashi (Eruvin 23b) explains that people do not live in a vegetable patch; however, people will walk through an orchard to enjoy the shade. Thus, the planting of trees does not remove the designation of mukaf ledirah from the area.

As I noted above, the latter halachah applies only when one planted trees in an area that was already mukaf ledirah. In other words, there is a difference between enclosing the area, which requires that it initially is mukaf ledirah, and changing its status once it was mukaf ledirah. Enclosing an orchard is not considered mukaf ledirah.

We will continue this article next week…

* The measurements used in this article are meant only for rough calculation.

Who Is the True Redeemer?

Discussing the mitzvah of pidyon haben is certainly appropriate to this week’s parsha—I therefore bring you…

Who is the True Redeemer?

Question #1: Deadbeat dad

Mrs. Gerusha* calls me with the following question:

“I am a divorced baalas teshuvah with two young children, a son and a daughter. My son never had a pidyon haben, and my ex-husband is an agnostic who is not interested in participating. Am I required to perform the pidyon haben for my twelve-year-old son, and what is the procedure if I do?”

Question #2: Who’s on first?

Mrs. Gerusha’s son asks: “May I perform my pidyon haben at my bar mitzvah?”

Question #3: Late bloomer

The Schwartz family discovered observant Judaism sometime after their oldest son was born some twenty years ago. Recently, they realized that they have never fulfilled the mitzvah of pidyon haben. The question is: Who should perform the mitzvah now, Mr. Schwartz or his yeshivah-bachur oldest son? In other words, if a father did not redeem his firstborn son who is now an adult, may he still fulfill the mitzvah?

Answer

This week’s parshah includes one of the places where the Torah mentions the mitzvah of pidyon haben, the redeeming of a firstborn son. This mitzvah is usually fulfilled by a father giving to a kohen five silver coins, each of which is worth a sela (plural sela’im), the cost established by the Torah to fulfill this mitzvah. This mitzvah is required only if the firstborn is not a kohen or a levi, his mother is not the daughter of either a kohen or a levi, and his delivery was a natural birth, in which case he is called a petter rechem.

The Gemara (Kiddushin 29a) derives that a father is required to fulfill the mitzvah of redeeming his firstborn son.

There are three obvious situations in which the father would not perform this mitzvah:

The father died before he performed the mitzvah.
The father is not Jewish or is unknown.
The father did not fulfill the mitzvah, although he could have.

Regardless as to why the father does not perform the mitzvah, the mother has no responsibility to do so. Rather, upon becoming bar mitzvah, the firstborn son himself becomes obligated in the mitzvah.

Thus, we can already examine Mrs. Gerusha’s question concerning her son who never had a pidyon haben, and whose father is unwilling to perform the mitzvah. She asked whether she is required to perform the pidyon haben.

Certainly, Mrs. Gerusha is not required to redeem her son.

May she?

When Mrs. Gerusha was told that she is not required to perform pidyon haben, she immediately asked whether she may perform the mitzvah. Answering this question requires an introduction.

Pidyon haben vs. bris

Pidyon haben is similar to the mitzvah of bris milah in that the father is the individual primarily responsible to fulfill it. However, there is a major difference between the two mitzvos: Should the father not fulfill the mitzvah of bris milah, the rest of the Jewish people become obligated to perform the bris milah on the uncircumsized child. The Gemara calls this “beis din being obligated in the mitzvah,” since they are the representative of the Jewish people.

On the other hand, in the case of pidyon haben, the community is not obligated to redeem this child. Should there be no father or should he fail to redeem his son, the mitzvah becomes the child’s to perform upon his becoming old enough to do so.

May they redeem?

Granted that no one is obligated to perform pidyon haben other than a father of the firstborn or, upon becoming of age, the firstborn son himself, may someone else give money to a kohen for the purposes of pidyon haben and thereby redeem the firstborn?

This question is discussed by several halachic authorities, the Taz (Yoreh Deah 305:11) concluding that someone other than the father cannot perform the redemption on behalf of a minor, whereas most authorities rule that a third party may redeem the firstborn (Nekudas Hakesef and Gra ad loc; Machaneh Efrayim, Hilchos Zechiyah #7; see also Ketzos Hachoshen 243:7 and Milu’ei Choshen ad locum). Thus, although Mrs. Gerusha is not required to redeem her son, according to most authorities, should she choose to do so, the redemption is effective.

When the bechor redeems himself, he recites a different version of the text than a father does when he redeems his son. When a father redeems his son, he recites Asher kideshanu bemitzvosav vetzivanu al pidyon haben [He Who commanded us in His commandments concerning redeeming the son] (Shulchan Aruch, Yoreh Deah 305:10). According to the Shulchan Aruch and the prevalent practice among Sefardim, when the bechor redeems himself, since he is not redeeming his son he closes the brocha with the words lifdos habechor (to redeem the firstborn). According to the Rema and the prevalent Ashkenazic custom, he concludes with the words al pidyon habechor (concerning redeeming the firstborn).

Early responsum

One of our opening questions asked whether a father is still responsible to observe the mitzvah of pidyon haben after his son becomes old enough to fulfill the mitzvah himself. This very question is discussed by the Rashba (Shu’t Harashba 2:321). The rabbonim of the city of Toledo, Spain, asked the Rashba (who lived his entire life in Barcelona) to rule on a situation in which a father had not redeemed his son shortly after the latter’s birth. Many years have passed, and the son is an adult who is interested in performing the mitzvah himself. The father has decided that he would like now to do the mitzvah, and contends that it is his mitzvah to perform. On the other hand, the son feels that once he became an adult the mitzvah is entirely his and no longer his father’s. Does the father still have a requirement to perform the mitzvah? Assuming that he does, is there a preference which of the two, the father or the son, performs the mitzvah?

The Toledo contention

The rabbonim of Toledo were unsure what to do, and therefore decided to have both the father and the son give the required amount for pidyon haben to the kohen, to be certain that the mitzvah was performed correctly. Since they were undecided as to whether the father or the son was observing the mitzvah, they ruled that neither one should recite the brocha prior to giving the kohen the redemption money. Since the kohen had now received more money than he was entitled to according to the halachah, he was required to return the difference. (The responsum does not say to whom the money was returned.)

Rashba’s ruling

Although the pidyon had already been performed according to their ruling, the rabbonim of Toledo asked the Rashba whether their decision was accurate. The Rashba explained that the rabbonim of Toledo had not ruled correctly. The mitzvah of a father to redeem his son never ends, even when the son becomes old enough to be required to perform his own redemption. Since both father and son are now required to perform the redemption, yet only one pidyon is required, whoever performs it first fulfills the mitzvah and should recite the brocha prior to giving the kohen the redemption money. The Rashba concludes that if the father and son ask which of them should preferably perform the mitzvah, the answer is the father. Therefore, in the case of Toledo, the son could have performed the mitzvah and recited the brochos (including shehecheyanu, see below), but, preferably, the father should have performed the mitzvah, in which case he would recite the brochos.

At this point, we can return to our opening question #3: The Schwartz family joined observant Judaism some time after their oldest son was born, some twenty years ago. Recently, they realized that they had never fulfilled the mitzvah of pidyon haben. The question is: Who should perform the mitzvah now, Mr. Schwartz, or his yeshivah-bachur oldest son? In other words, if a father did not redeem his firstborn son who is now an adult, may he still fulfill the mitzvah?

The answer is that either the father or the son can perform the mitzvah, and whoever does so recites the brochos. If they ask who should preferably perform the mitzvah, the answer is that it should be Mr. Schwartz.

Coercion

Should a father fail to perform the mitzvah of pidyon haben, the beis din has the halachic right and responsibility to coerce him to perform his mitzvah. What is the law if the father did not perform the mitzvah when his son was young, and now the son is old enough to perform the mitzvah himself? Does beis din coerce one of them to perform the mitzvah, and if it does, which one, the father or the son?

The Rashba rules that if the son is in a financial position to perform the mitzvah, we coerce the son, rather than the father, to do so. If the son is not in a financial position to perform the mitzvah himself, beis din should force the father.

Redeeming yourself

What is the procedure for performing pidyon haben when the adult son redeems himself?

Let us first review the basic steps of a regular pidyon haben performed by a father to redeem his recently born son.

A festive meal is celebrated in honor of the pidyon haben, in order to call attention to the mitzvah. After hamotzi has been recited, the father brings the bechor to the kohen, who is seated at a place of honor. The father declares to the kohen that the baby is a firstborn son, whom he is required to redeem.

The kohen then responds with the famous and enigmatic thousand-year old question: “Mai ba’is tefei?” “Which do you prefer? Would you rather have your child or the five silver coins, sela’im, of pidyon?”

The father responds that he would prefer his son, and that he has the money on hand with which to redeem his son. The father then recites two brochos: Asher kideshanu bemitzvosav vetzivanu al pidyon haben for the mitzvah of pidyon haben, and Shehecheyanu (Rema, Yoreh Deah 305:10). He then places the silver coins in the kohen’s hand. The kohen recites the verses of the birchas Kohanim and other words of blessing over the head of the bechor. The procedure is completed by the kohen reciting a brocha on a cup of wine and drinking it.

Redeeming oneself

An early halachic authority, the Maharshal, adapts the choreography of a standard pidyon haben to the situation in which a firstborn is redeeming himself because his father died before fulfilling the mitzvah:

The adult firstborn begins the proceedings by reciting the following declaration: “I am a firstborn petter rechem (see above) and Hashem commanded us to redeem the firstborn. Unfortunately, my father died before he redeemed me, and I remain with the responsibility to redeem myself… I am now prepared to fulfill the mitzvah of Hashem.”

The kohen then tells the firstborn, “Would you prefer your own body or the five sela’im that you are required to pay as your redemption money?” To which the firstborn answers: “I want to keep myself, and here are the five sela’im coins.” The firstborn then recites two brochos, the brocha on the mitzvah of pidyon haben and the brocha of Shehecheyanu (Yam shel Shlomoh, Kiddushin 1:53).

At this point, we can complete our answer to Mrs. Gerusha’s opening inquiry: “I am a divorced baalas teshuvah with two young children, a son and a daughter. My son never had a pidyon haben, and my ex-husband is an agnostic who is not interested in participating. Am I required to perform the pidyon haben for my twelve-year-old son, and what is the procedure if I do?”

As we mentioned above, the halachah is that a mother is not required to perform the mitzvah of pidyon haben. If the father refuses to perform the mitzvah, the mitzvah will devolve upon the firstborn son, upon his becoming obligated in mitzvos. In this latter case, the choreography would follow the Maharshal’s approach, making a slight modification in the text to accommodate the difference in circumstances – the firstborn’s father is alive.

Should the mother perform the pidyon on behalf of her son, as we mentioned above, most authorities consider the redemption valid, and the son will not be obligated in this mitzvah upon his becoming an adult. If she followed this approach, she should modify the pidyon haben choreography to note that she is redeeming her son. Personally, if I were asked what to do, I would advise them to wait until the son is old enough to perform his own pidyon, and to follow the text mentioned by the Maharshal, with the appropriate change reflecting the fact that the father is still alive.

When to redeem himself?

If the son is performing his own pidyon haben, when should he do it?

Since he becomes obligated in this mitzvah upon his bar mitzvah, he should perform the pidyon haben as soon as he has money with which to perform it. He is not required to beg or borrow money in order to do so, but may wait until he has earned the money or received it as a present. Other people may give him money so that he can perform the pidyon haben. Anyone may pay for the festive pidyon haben seudah.

This leads us to a new question: Since they would be celebrating a special meal on the occasion of his turning bar mitzvah, should they make the pidyon haben at that meal, or have two separate festive meals, one for the pidyon and the other for the bar mitzvah?

Combining semachos

Is it permitted for the firstborn bar mitzvah to combine his bar mitzvah celebration party with the pidyon haben? The background to this question is as follows:

The Mishnah (Moed Katan 8b) prohibits getting married on Chol Hamoed. The Gemara presents several disputing reasons for this ruling. One approach is that one should not overlap two festivities. Does this concern apply should the firstborn son celebrate his pidyon haben and his bar mitzvah at the same banquet – that this joint celebration deters from the celebration of one of the mitzvos?

Pidyon haben on Chol Hamoed

Tosafos (Moed Katan 8b s.v. Mipenei) discusses whether the prohibition against marrying on Chol Hamoed extends to other celebrations, such as a pidyon haben. At first, he considers that this might be prohibited, but he concludes that the Mishnah’s prohibition includes only getting married on Chol Hamoed, but not pidyon haben and other celebrations that are not as festive as is a wedding. This decision is followed by the Shulchan Aruch (Orach Chayim 546:4) and others (Birchei Yosef, Yoreh Deah 305:18), but not by all authorities (see Rema, Yoreh Deah, 305:11). Similarly, we rule that a bris, a sheva brachos or a bar mitzvah may be celebrated on Chol Hamoed (Shulchan Aruch, Orach Chayim 546:3, 4), and that the only combined celebration prohibited is a wedding on Chol Hamoed.

Thus, it is perfectly fine for the son to do his pidyon haben at his bar mitzvah celebration. As a matter of fact, I would strongly encourage that he do so if he has the money with which to fulfill the mitzvah, since this accomplishes that fulfilling the mitzvah of pidyon haben is not delayed, and that it is observed at a festive occasion.

Thus we can now answer Mrs. Gerusha’s son’s question that we quoted at the beginning of this article: “May I perform my pidyon haben at my bar mitzvah?”

The answer is that he certainly may, and, since it is the first opportunity for the son to do so, it is, indeed, an exemplary time to perform the mitzvah.

Conclusion

Since the time of makas bechoros, all first-born males have a certain kedusha. This special sanctity should have resulted in their taking a special role in the service in the Beis Hamikdash. However, because the bechorim were involved in worshipping the eigel hazahav, they lost their unique status and could no longer perform any special role there. As a result, the bechor must undergo a redemption ceremony to make amends – which is accomplished by giving money to a kohen as a means of “redeeming” his kedusha.

* All names have been changed to protect people’s privacy.

What’s Being Served for Haftarah This Week?

Question #1: What Haftarah does Klal Yisrael read on Shabbos Parshas Shemos?

Question #2: Why do we read this Haftarah?

Question #3: What unusual fact about this week’s Haftarah inspired me to discuss this topic this week?

Before providing the clues to answering these questions; let’s first understand some background.

The Word Haftarah

I remember, as a child, assuming that the word Haftarah was pronounced half-Torah, because it was always much shorter than the Torah reading. Unfortunately, I occasionally hear adults mispronounce the word this way, too.

Although there are several interpretations of the word Haftarah, it is usually understood to mean completing, as in “completing the reading of the Torah” (Levush, Orach Chayim 284:1).

What Should We Read?

Chazal established specific Haftaros for some Shabbosos and Yomim Tovim (Megillah 29b- 31b). During weeks when no specific Haftarah was instituted, we should recite a Haftarah appropriate to the parsha.

Sometimes, the Haftarah relates not to the parsha, but to the season, such as during the Three Weeks and on the seven consecutive Shabbosos following Tisha B’Av. We also find that some places had a custom on a Shabbos aufruf to read the Haftarah from Yeshayahu that concludes, “And as a chosson rejoices with his kallah, so shall Hashem rejoice with you” (Terumas Hadeshen #20).

On most Shabbosos, when there was no requirement to read a specific section of Navi, each community would choose a selection of Navi reminiscent of the parsha. Indeed, if one looks at old Chumashim and books of community minhagim, one finds many variant practices. In addition, several sefarim mention different customs, and the Encyclopedia Talmudis provides a very extensive listing. Particularly, Sephardic and Ashkenazic practices often vary from one another, especially regarding minor differences, such as exactly where to begin or end the Haftarah, or whether to skip certain verses.

However, our Chumashim usually mention only the most common selections of Navi that have become generally accepted, only mentioning the differences between Sefardic, Ashkenazic and occasionally Italian practices.

Every Three Years

Today, the universal practice is to complete the entire Torah reading every year. However, in the times of the Gemara and for many centuries afterward, some communities read much smaller sections of the Torah every week and completed the Torah reading only every three years. Those communities also divided the Haftarah into three-year cycles by reciting a Haftarah that corresponded to their shorter readings. I have seen photographs of old manuscript Haftarah books based on the three-year system, where each sub-parsha has the name of the first words of the week’s portion. In the selection I saw, Parshas Vaeschanan was divided into three parts named Parshas Vaeschanan, Parshas Az Yavdil Moshe, and Parshas Shema Yisroel.

How is Parshas Shemos Unique?

Now is the time to address the questions I raised above:

Which Haftarah does Klal Yisrael read this Shabbos?

Why do we read this Haftarah?

What unusual fact about this week’s Haftarah inspired me to discuss this topic this week?

There are many different customs regarding which Haftarah to read. On no other Shabbos am I aware of as many different customs as this Shabbos. I am aware of five completely different choices for the Haftarah reading for Parshas Shemos! On many weeks, Ashkenazim and Sefardim either begin or end in different places, or add or skip certain pesukim, but the basic reading is the same. The five selections I saw mentioned for this week’s Haftarah are all from Neviim Acharonim, but they are five completely different readings. The Abudraham, who lists different customs regarding what to read on each week’s Haftarah, cites three alternate haftaros for Parshas Shemos, each from a different one of the three major seforim of Nevi’im Acharonim: Yeshayahu, Yirmiyohu and Yechezkel. And yet, the standard Haftarah read in Ashkenazi communities for this Shabbos is not any of the three that Avudraham quotes, which is highly unusual.

What do Ashkenazim read?

To the best of my knowledge, all Ashkenazic communities nowadays read Haba’im Yashreish Yaakov, from the Book of Yeshayahu (27:6 – 28:23). There does not seem to be any obvious reason to associate this passage from Yeshayahu with parshas Shemos. Why do we read this Haftarah? Rashi, in his commentary to the first words of the Haftarah, notes that the first words mentioned by Yeshayahu refer to the Bnei Yisroel going down to Mitzrayim, similar to the first words of this week’s Torah reading. Thus, although the rest of the Haftarah has little connection to the parsha, the beginning allusion was sufficient to choose this particular Haftarah for this week.

What do Sephardim and Edot Hamizrah read?

Some oriental communities, particularly those originating from parts of Yemen or Iraq, read from Yechezkel: Ben Adom Hoda es Yerushalayim (Yechezkel 16:1- 14), which is one of the three selections mentioned by Abudraham. This portion is also mentioned by the Rambam as the Haftarah for this week, which is probably the source for the Yemenite communities. Reading these words of Yechezkel, one can readily see why this was chosen for this week’s Haftarah. It describes the bleak origins of the Jewish people. Some of its verses have found their way into the Hagadah that is recited on Pesach-night, for the same reason.

However, most Sephardic communities read the beginning of the book of Yirmiyohu, Divrei Yirmiyohu. This Haftarah is very familiar to Ashkenazim because it is read on the first of the Three Weeks, usually parshas Pinchas, but occasionally on Parshas Matos.

Since this Haftarah discusses the impending attack of the Babylonians on Israel, it seems extremely appropriate to the Three Weeks; but why do Sephardim read it on parshas Shemos? Some note that several analogies between Moshe and Yirmiyohu surface in the parsha and Haftarah. Both Yirmiyahu and Moshe are beginning their careers as prophets, reluctantly. Yirmiyahu says that he is unable to speak, as he is little more than a child, and Moshe claims that he cannot speak due to physical impediment.

However, I must admit that I am baffled why it has become more commonly accepted to read either of these two haftaros: Habaim Yashreish Yaakov or Divrei Yirmiyohu, rather than Yechezkel Chapter 20, whose relationship to our parsha is more obvious. This passage mentions that Hashem made Himself known to the Jewish people in Mitzrayim, and that the Jews should not assimilate and follow Egyptian idolatrous practices. Indeed, this Haftarah was read by many Yemenite communities, yet it failed to gain acceptance in most other communities, either Ashkenazi or Sephardi, and furthermore, is not one of the three haftaros mentioned for this parsha by the Avudraham. (I refer our readers to Rav Mendel Hirsch’s commentary on the haftaros, where he suggests a connection between our Haftarah and parshas Shemos.)

Thus, I find two very surprising factors about the Haftarah we read this week.

There are, or probably more accurately now, were at least five different accepted customs followed in choosing the Haftarah for this week, more than I am aware of for any other Shabbos.
The ones standardly read in accordance with most Ashkenazi or Sephardi customs are the least obvious choices – meaning they are choices where we must strain to understand why they were chosen rather than other, more obvious candidates.

Conclusion:

We thus see that recital of the weekly Haftarah is an ancient custom and should be treated with respect. We may wonder why certain passages were chosen to be read on any given week; and at times, cannot even say that these were the most appropriate choices. In any event, we should pay attention to the Haftarah reading. We can gain much from understanding the inspiring messages that the navi is teaching.

What Is an Otzar Beis Din?

What do the words “Otzar Beis Din” mean? And, as an old friend of mine would ask, “Is an Otzar Beis Din good for the Jews or bad for the Jews?”

Literally, the words mean “a storehouse operated by Beis Din.” Why would Beis Din operate a warehouse? Is this some type of gmach or warehouse for impounded goods? Or a place where Beis Din stores people who are recalcitrant to follow its rulings? Although these might be good ideas, they have nothing to do with an Otzar Beis Din, which is a halachically approved method of distributing shmittah produce.

Before explaining what is an Otzar Beis Din, we must first review briefly the halachos of shmittah. These rules fall under two general categories:

(1) Laws of the Land

(2) Laws of the Fruit.

LAWS OF THE LAND

The Torah (VaYikra 25:1-7) teaches that every seventh year is shmittah, and we are prohibited from working the land of Eretz Yisroel. One may not plow, plant, prune, or harvest one’s grapevines or perform most other agricultural work. Furthermore, one may not allow one’s land to be worked during shmittah, even by a gentile (Gemara Avodah Zarah 15b). Since we follow the opinion that shmittah today is only miderabbanan, we have one leniency — one may perform activities whose purpose is to prevent loss (see Gemara Moed Katan 3b). For example, one may water plants and trees so that they do not die (Gemara Moed Katan 3b; Rambam, Hil. Shmittah 1:10; cf. Chazon Ish, Shvi’is 16:4, 21:14, who is more lenient).

The landowner may not treat what grows during shmittah as his own; rather he must allow others to enter his field or orchard and help themselves. If his field is fenced, the owner must leave the gate unlocked and should remove any impediments that discourage people from helping themselves to the produce (Rambam, Hil. Shmittah 4:24). They may take only as much as their family will eat, and the landowner himself may also take this amount (see Rambam, Hil. Shmittah 4:1). According to many poskim, the owner has a special mitzvah to declare that his produce is hefker, ownerless (Shu’t Igros Moshe, Yorah Deah 3:90 s.v. vihataam).

One must not pick shmittah produce the way one usually would, but with a shinuy, some variation from the usual (Sifra). One may not sell shmittah produce in a business manner (Rambam, Hil. Shmittah 6:1).

LAWS OF THE FRUIT

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

THE WAY IT IS EATEN

The Torah teaches that shmittah produce may be eaten, but it may not be ruined. What types of “ruining” did the Torah prohibit? Foods that are usually only eaten cooked should not be eaten raw, and those that are not cooked should not be cooked. For example, one may not eat shmittah potatoes raw, nor cook shmittah cucumbers or oranges, even as part of a recipe. Similarly, one may not squeeze a fruit into juice, since this is considered “ruining” the fruit, although one may squeeze grapes, olives or lemons that have kedushas shvi’is since in these cases the fruit is not ruined, but improved, when squeezed. However, one may not squeeze apples or carrots, even if one usually does so, since one is ruining the fruit in the process of extracting its juice. Similarly, one may not add slices of shmittah orange to a recipe for a roast since the orange is ruined in the process even though the roast is improved (Shu’t Mishpat Kohen, #85).

If someone errantly squeezed a shmittah fruit, or cooked produce that should have been eaten raw, the finished product is permitted. It goes without saying that one must be careful not to actively destroy shmittah produce.

If one uses a shmittah product as an ingredient, one must treat everything that absorbs the taste of the shmittah product with the laws of kedushas shvi’is. Therefore, if someone used shmittah potatoes in a cholent, or shmittah onions or bay leaves in a soup, one must treat the entire cholent or soup with the laws of kedushas shvi’is.

One may not feed animals shmittah produce that is usually eaten by people. However, one may feed animals shmittah product that is typically used as feed, such as peels and seeds that people do not consume, or if they are no longer considered fit for human consumption.

COMMERCE WITH SHMITTAH PRODUCE

One must be careful not to sell shmittah produce in a way that implies that one is its true owner. For this reason, shmittah produce may not be sold by weight or measure (Mishnah Shvi’is 8:3), nor sold in a regular store (Yerushalmi Shvi’is 7:1). 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 shmittah produce to chutz la’aretz (Mishnah Shvi’is 6:5). There is a halachic controversy whether one may ship esrogim to chutz la’aretz for people to fulfill the mitzvah (Beis Ridbaz 5:18; Igros Moshe, Orach Chayim 1:186).

SANCTIFIES ITS EXCHANGE

Shmittah produce has an unusual halacha in that it is tofes damav, transfers its special laws onto the money or other item that is exchanged for it (Sukkah 40b). For this reason, if one sells or trades shmittah produce, the money or other item received in exchange also has kedushas shmittah and must be treated with all the laws mentioned above. Even so, the original produce maintains its kedushas shvi’is.

TERUMOS AND MAASROS

An interesting leniency applies to shmittah produce. Since it is halachically ownerless, there is no requirement to separate terumos and maasros from shmittah produce. The poskim dispute whether one must separate terumos and maasros from produce taken from the field of an owner who did not observe shmittah and did not allow people to help themselves (Shu’t Avkas Rocheil #24; Shu’t Mabit #11).

SEFICHIM

The Torah permits eating produce that grew by itself without working the field during shmittah. However, Chazal felt it necessary to prohibit grains and most vegetables that happened to grow on their own during shmittah year or were planted in violation of the laws of shmittah. The reason for this was that, even in the days of Chazal, it was unfortunately common to find Jews who deceitfully ignored shmittah 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 did grow on their own, a prohibition called sefichim, literally, “plants that sprouted.” Several exceptions were made, including that the produce of a non-Jew’s field is not prohibited as sefichim. Since a gentile is not obligated to observe shmittah, Chazal saw no reason to ban produce grown during shmittah in his field (Rambam, Hil. Shmittah 4:29).

OWNERLESS

Since all shmittah produce is halachically ownerless, every consumer has the halachic right to “help himself” to whatever his family might eat. (The poskim dispute whether one has the right to do this if the owner refuses entry. Even if it may be permitted, I do not recommend helping yourself to shmittah produce if the owner is not observing the laws of shmittah.) If my neighbor owns fruit trees, I have the right to enter his field and help myself. Similarly, if he has a vineyard, I may enter his vineyard and take as many grapes as my family can eat as table grapes or drink as wine. The field and tree are not ownerless, but the produce is.

WHAT IS AN OTZAR BEIS DIN?

With this introduction, we can now discuss what an Otzar Beis Din is. The owner of a vineyard is not required to produce wine for me, to allow me to harvest the grapes only 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 do so. How then can I possibly utilize the benefit of shmittah?

Enter the Otzar Beis Din to help out! 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 shmittah 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 it is hefker, 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 them to the consumer. All the other halachos of shmittah apply to this produce.

A “MODERN” OTZAR BEIS DIN

The Rabbonim and Beis Din of Yerushalayim organized the first modern Otzar Beis Din 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 shmittah. The written contract, extant to this day, was signed by Rav Chayim Berlin, Rav of Yerushalayim at the time; Rav Yosef Chayim Zonnenfeld and Rav Pesach Frank, both of whom were later rabbonim of the city of Yerushalayim; and by two other prominent dayanim, Rav Yisroel Yaakov Yaavetz and Rav Moshe Nachum Wallenstein. To enable 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 to harvest and process the produce and transport it to Yerushalayim. 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 shmittah 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 be significantly lower than its usual market price (Sefer Minchas Yerushalayim pg. 161).

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

1) The wine and fruits could be distributed only to people who would observe the shmittah sanctity of the products (see Tosefta Shvi’is 6:11).

2) The vineyards and orchards had to be available for any shmittah observant person to enter and harvest for his own needs (Sefer Minchas Yerushalayim pg. 181).

3) 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 shmittah produce paid Rav Cohen as Beis Din’s agent, for which the consumer was entitled to “shares” of wine and produce that were delivered in bulk containers without an exact weight.

4) The actual harvest of the product was performed by gentiles and in an atypical way (Katif Shvi’is pg. 125).

In his analysis of the procedure of an Otzar Beis Din, the Chazon Ish (Shvi’is 11:7 s.v. bemashekasavti) follows a more lenient approach than that of the Beis Din of Yerushalayim. 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 following the Chazon Ish’s ruling allows Jewish staff to use combines to harvest and process the shmittah produce (Sefer HaShmittah pg. 21).

In addition, the Chazon Ish permitted weighing and measuring produce sold through Otzar Beis Din. In his opinion, the prohibition against weighing and measuring shmittah 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.

The 1910 Otzar Beis Din of Yerushalayim was stricter than this approach and did not allow any weighing or measuring of produce. Each participating household received “units” of wine and/or fruit which were deliberately approximate and not measured or weighed.

In a modern Otzar Beis Din, the grower plants everything before shmittah and is given extremely detailed instructions regarding what he may and may not do during shmittah (Katif Shvi’is pg. 126). The grower must allow any shmittah observant person to enter the field or orchard and help himself to the produce (Mishpetei Aretz pg. 103).

Usually, the grower has agreed in advance to a price for his produce which he will receive regardless of the quality of the produce. The grower must understand that this price is not a purchase of the produce, but compensation for his out-of-pocket expenses, including compensation for his own time.

“HETER OTZAR BEIS DIN”

Now is the time to approach our second question: “Is an Otzar Beis Din good or bad for the Jews?” 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 I 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 the halacha of shmittah. If the farmer is operating with a true Otzar Beis Din, he will allow a shmittah observant person to enter his field and help himself to the produce. (If he is concerned that the individual may damage the field or the trees, then he can make other arrangements.) However, if the field owner treats the produce as completely his own and charges accordingly, this contradicts the meaning of Otzar Beis Din. Cases like these are called heter Otzar Beis Din; meaning a permissibility based on an abuse of the concept of Otzar Beis Din. Because of these concerns, some hechsherim discourage the use of Otzar Beis Din. (See extensive discussion of this question in Minchas Yerushalayim Chapter 9.)

Thus in answer to our question whether Otzar Beis Din is good for the Jews or bad for the Jews, the answer is that although it is good for the Jews in theory, in practice Otzar Beis Din becomes bad for the Jews when it degenerates into a heter Otzar Beis Din. I certainly encourage use of a properly run Otzar Beis Din, which also includes that the produce must be treated with all the rules of kedushas shevi’is.

For the modern farmer, observing shmittah is true mesiras nefesh, since among many other concerns he also risks losing customers who have been purchasing his products for years. Of course, since a Jew realizes that Hashem provides parnasah and that observing a mitzvah will never hurt anyone, a sincerely observant farmer obeys the Torah dictates knowing that Hashem attends to all his needs. Indeed, all recent shmittos have had numerous miracles rewarding observant farmers in this world for their halachic diligence. Who can possibly imagine what reward awaits them in Olam Haba!

The Heter Mechirah Controversy

Several shmittah cycles ago I was working as a mashgiach for a properly run American hechsher. One factory that I supervised used to manufacture breading and muffin mixes. This company was extremely careful about checking its incoming ingredients: George, the receiving clerk who also managed the warehouse, kept a careful list of what products he was to allow into the plant and what kosher symbols were acceptable.

On one visit to the plant I noticed a problem due to no fault of the company. For years, the company had been purchasing Israeli-produced, freeze-dried carrots with a reliable hechsher. The carrots always arrived in bulk boxes with the Israeli hechsher prominently stamped in Hebrew and the word KOSHER prominently displayed in English. George, who always supervised incoming raw materials, proudly showed me through “his warehouse” and noted how he carefully marked the arrival date of each new shipment. I saw crates of the newest shipment of Israeli carrots, from the same manufacturer, and the same prominently displayed English word KOSHER on the box. However, the Hebrew stamp on the box was from a different supervisory agency, one without the same sterling reputation. The reason for the sudden change in supervisory agency was rather obvious when I noted that the Hebrew label stated very clearly “Heter Mechirah.”

Let me explain the halachic issues that this product entails.

The Torah (Vayikra 25:1-7) teaches that every seventh year is shmittah and prohibits working the land of Eretz Yisroel. During that year, one may not plough, plant, or work the field in any way. Furthermore, the farmer must treat whatever grows on his land as ownerless, allowing others to pick and keep his fruit. They may only take as much as their family will be eating, and the farmer also may take this amount. Many other laws apply to the produce that grows during shmittah, including, for example, that one may not sell the produce in a business manner nor may one export it outside Eretz Yisroel.

For the modern farmer, observing shmittah is indeed 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 citrus or avocado crop to a distributor in Europe who sells his produce throughout the European Community. If he informs his customer that he cannot export his product during shmittah year, 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. Therefore, a sincerely observant farmer obeys the Torah dictates knowing that Hashem attends to all his needs. Indeed, recent shmittos 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!

Unfortunately, the carrot farmer here was not committed to this level of bitachon and instead explored other options, deciding to rely on heter mechirah. He soon discovered that his regular, top-of-the line hechsher would not allow this, so he found an alternative hechsher that allowed him to be lenient, albeit by clearly forewarning customers who may consider this product non-kosher. Although he realized that sales would suffer without his regular hechsher, he figured that selling some product is better than selling none.

WHAT IS HETER MECHIRAH?

The basic concept of heter mechirah is that the farmer sells his land to a gentile, who is not required to observe shmittah. Since a gentile now owns the land, the gentile may farm the land, sell its produce, and make a profit. The poskim dispute whether a Jew may work land owned by a gentile during shmittah (Tosafos, Gittin 62a s.v. ayn odrin, prohibits; whereas Rashi, Sanhedrin 26a s.v. agiston, permits).

IS THIS ANY DIFFERENT FROM SELLING ONE’S CHOMETZ FOR PESACH?

Although some poskim make this comparison (Shu’t Yeshuos Malko, Yoreh Deah #53), many point out differences between selling chometz to a gentile and selling him land in Eretz Yisroel. Indeed although the Mishnah (Pesachim 21a) and other early halachic sources (Tosefta, Pesachim 2:6) mention selling chometz to a non-Jew before Pesach, no early source mentions selling land of Eretz Yisroel to avoid shmittah (Sefer Hashmittah pg. 71). The earliest source I found discussing this possibility was an eighteenth century responsum penned by Rav Mordechai Rubyou, the Rosh Yeshivah in Hebron at the time, who discusses the tribulations of a Jew owning a vineyard in Eretz Yisroel in that era (Shu’t Shemen Hamor, Yoreh Deah #4. This sefer was published posthumously in 1793.)

HISTORY OF MODERN HETER MECHIRAH

Before explaining the halachic background to the heter mechirah question, I think it is important to understand the historical context of the shaylah.

Rav Yechiel Michel Tukachinski, one of the great twentieth century poskim of Eretz Yisroel, describes the history and development of the use of heter mechirah. (My source for most of the forthcoming historical material is his work, Sefer Hashmittah.)

The first modern shmittah was in the year 5642 (1882), although at that time there were a mere handful of Jewish farmers in Israel, located in Petach Tikvah, Motza, and Mikveh Yisroel. The highly observant farmers in these communities were uncompromising in their commitment to observe shmittah in full halachic detail. Apparently, at the same time there were some Sefardic farmers in Israel whose rabbonim did allow them to sell their fields to a gentile for the duration of shmittah (see Shu’t Yeshuos Malko, Yoreh Deah #53; Shu’t Yabia Omer 3:Yoreh Deah #19:7).

By the next shmittah of 5649 (1889), there was already a much larger Jewish agricultural presence in Eretz Yisroel. Prior to that shmittah year, representatives of the developing Israeli agricultural communities approached several prominent Eastern European gedolim,laiming that the new yishuv could not survive financially if shmittah were to be observed fully and that mass starvation would result. Could they sell their land to a gentile for the duration of shmittah and then plant the land and sell its produce?

THE BEGINNINGS OF A CONTROVERSY

Rav Naftali Hertz, the Rav of Yaffo, who also served as the Rav of most of the agricultural communities involved, directed the shaylah to the gedolei haposkim of the time, both in Israel and in Europe. The rabbonim in Europe were divided, with many prominent poskim, including Rav Yehoshua Kutno, Rav Yosef Engel and Rav Shmuel Mahliver, approving the sale of the land to non-Jews as a horaas shaah, a ruling necessitated by the emergency circumstances prevailing, but not necessarily permitted in the future. They permitted the heter mechirah, but only with many provisos, including that only non-Jews perform most agricultural work. On the other hand, many great European poskim prohibited this heter mechirah, including such luminaries as the Netziv (Rav Naftali Tzvi Yehudah Berlin, the Rosh Yeshivah of the preeminent yeshiva of the era in Volozhin, Lithuania), the Beis HaLevi (3:1) (Rav Yosef Dov HaLevi Soloveichek), the Aruch HaShulchan (Rav Yechiel Michel Epstein), and Rav Dovid Karliner.

Rav Yitzchak Elchanan Spector, the Rav of Kovno, Lithuania, who many viewed as the posek hador, ruled that Rav Hertz could perform the sale and instructed him to have the great poskim of Yerushalayim actuate the sale.

This complicated matters, since the Ashkenazi Rabbonei Yerushalayim universally opposed the heter mechirah and published a letter decrying it stridently. This letter, signed by the two rabbonim of Yerushalayim, Rav Yehoshua Leib Diskin and Rav Shmuel Salant, and over twenty other gedolim and talmidei chachamim, implored the farmers in the new yishuv to keep shmittah steadfast and expounded on the divine blessings guaranteed them for observing shmittah. The letter also noted that Klal Yisroel was punished severely in earlier times for abrogating shmittah (see Avos Chapter 5). As Rashi (Vayikra 26:35) points out, the seventy years of Jewish exile between the two batei hamikdash correspond to the exact number of shmittos that were not observed from when the Jews entered Eretz Yisroel until the exile. The great leaders of Yerushalayim hoped that if Klal Yisroel observed shmittah correctly, this would constitute a collective teshuvah for the sins of Klal Yisroel and would usher in the geulah.

Rav Hertz, who had originally asked the shaylah, was torn as to what to do. Although he had received letters from some of the greatest poskim of Europe permitting the mechirah, the poskei Yerushalayim were adamant in their opposition. He decided not to sell the land himself, but arranged mechirah for those who wanted it through the Sefardic rabbonim in Yerushalayim, who had apparently performed this mechirah in previous years.

What happened? Did the Jewish farmers observe the shmittah as cajoled by the Rabbonei Yerushalayim, or did they rely on heter mechirah? Although the very committed farmers observed shmittah according to the dictates of the Gedolei Yerushalayim, many of the more marginally observant farmers succumbed to the pressure and relied on heter mechirah. Apparently, many farmers were subjected to considerable financial and social pressure not to observe shmittah.

Prior to shmittah year 5656 (1896), Rav Hertz again considered what to do in the coming shmittah, and approached the Rabbonei Yerushalayim. This time, both Rav Shmuel Salant and Rav Yehoshua Leib Diskin approved the mechirah and even suggested to Rav Hertz how to arrange this mechirah in a halachically approved fashion.

WHAT CHANGED?

Why were the very same rabbonim who vehemently opposed the mechirah seven years earlier not opposed this time? Initially these rabbonim felt that since we had now merited returning to Eretz Yisroel, we should make sure to observe all the mitzvos of Eretz Yisroel without compromise, and evading shmittah with heter mechirah runs totally counter to this spirit. However, upon realizing that few farmers had observed the previous shmittah properly, the feeling of these great gedolim was that without the option of heter mechirah, most farmers would simply conduct business as usual and ignore shmittah completely. Therefore, it was better to permit heter mechirah while at the same time encourage farmers not to rely upon it.

Prior to the next shmittah in 5663 (1903) Rav Hertz re-asked his shaylah from the rabbonim of Yerushalayim, Rav Shmuel Salant, and the Aderes, Rav Eliyahu Dovid Rabinowitz Teumim (Rav Diskin had passed on in the meantime), since the original approval stipulated only the 1896 shmittah year. These rabbonim felt that the circumstances had not changed and that there was still a need for heter mechirah. Rav Hertz himself passed away before the heter mechirah was finalized, and his son-in-law, Rav Yosef HaLevi, apparently a talmid chacham of note, finalized the mechirah in his stead, following the instructions of the rabbonei Yerushalayim.

Seven years later (5670/1910), Rav Avraham Yitzchak Kook was the Rav of Yaffo and continued the practice of the mechirah, while at the same time encouraging those who would observe shmittah correctly to do so. As Rav he continued this practice of performing the heter mechirah for the several subsequent shmittos of his life.

In addition, Rav Kook instituted a new aspect to heter mechirah. Prior to his time, the heter mechirah involved appointing an agent to sell the land for the years of shmittah. Rav Kook improvised a facet of the mechira enabling even a farmer who did not avail himself of the mechirah to be included since it would be in his best interest to have some heter when he works his field rather than totally desecrating the Holy Land in the holy year.

Although there is merit in protecting the farmer from his sin, a practical question now results that affects a consumer purchasing this farmer’s produce. If the farmer did not authorize the sale, does the produce indeed not have the sanctity of shmittah produce? For this latter reason, many individuals who might otherwise accept heter mechirah produce do not.

By the way, although the original heter mechirah specified that gentiles must perform all plowing, planting and harvesting, this provision is no longer observed by most farmers who rely on heter mechirah. Many farmers who rely on heter mechirah follow a “business as usual” attitude once they have dutifully signed the paperwork authorizing the sale. Indeed, who keeps the profits from the shmittah produce, the Jew or the non-Jew to whom he sold his land? One can ask — is this considered a sale?

Another point raised is that although Chazal also contended with much laxity in observing the laws of shmittah, they did not mention selling the land to evade the mitzvah. This is underscored by the fact that there are indeed precedents where Chazal mention ways to avoid observing mitzvos. For example, the Gemara mentions methods whereby one could avoid separating maaser for those who want to evade this mitzvah, although Chazal did not approve of doing so. Furthermore, when Hillel realized that people were violating the halachos of shmittas kesafim, he instituted the pruzbul. Yet no hint of avoiding shmittah by selling land to a gentile is ever mentioned, thus implying that there is halachic or hashkafic difficulty with this approach (Sefer Hashmittah pg. 82).

SELLING ERETZ YISROEL

In addition to the question of whether one should evade performing a mitzvah of the Torah, the issue of heter mechirah involves another tremendous halachic difficulty. How can one sell any land of Eretz Yisroel when the Torah prohibits selling it to a non-Jew (Avodah Zarah 20a), and Chazal prohibit even renting the land (Mishnah, Avodah Zarah 20b)?

Different poskim have suggested various approaches to avoid this prohibition. Some contend that selling land temporarily with an expressed condition that it returns to the owner preempts the violation (Shu’t Shemen Hamor, Yoreh Deah #4), while others permit this since the sale is to assist the Jewish presence in Eretz Yisroel (Shu’t Yeshuos Malko, Yoreh Deah #55; Yalkut Yosef pg. 666, quoting Rav Reuven Katz, the late rav of Petach Tikvah). Others contend that the prohibition extends only to selling land to an idol-worshipper but not a gentile who does not worship idols (Sefer Hashmittah pg. 74; Yalkut Yosef pg. 665, quoting Mizbayach Adamah), whereas still others maintain that one may sell land to a gentile who already owns land in Israel (Shabbas Ha’aretz, Mavo 12). The original contracts approved by the rabbonei Yerushalayim incorporate some other aspects of the way the sale transpires to avoid this problem (Sefer Hashemittah pg. 75). Each of these approaches is halachically controversial. In fact, the problem of selling the land to a gentile is so controversial that many poskim consider such a sale invalid because of the principle ein shaliach lidvar aveirah, that transacting property through agency in a halachically unacceptable manner is invalid (Chazon Ish, Shvi’is 24:4).

Among contemporary poskim there is wide disagreement whether one may eat produce manufactured through heter mechirah; some contending that one may, others ruling that both the produce and the pots are non-kosher, whereas others accept that the pots should not be considered non-kosher although one should carefully avoid eating heter mechirah produce. Because of the halachic controversies involved, none of the major hechsherim in North America approve heter mechirah produce. Someone visiting Eretz Yisroel during shmittah who wants to maintain this standard should clarify in advance what he intends to do.

FRUITS VERSUS VEGETABLES

Some rabbonim ruled that the fruits produced under heter mechirah may be treated as kosher, but not the vegetables. The reason for this distinction follows:

SEFICHIM

The Torah permitted the use of any produce that grew on its own without working the field during shmittah. Unfortunately though, even in the days of Chazal, it was common to find Jews who deceitfully ignored shmittah laws. One practice of enterprising, unscrupulous farmers was to plant grain or vegetables and market them as produce that grew on its own. To make certain that these farmers did not benefit from their misdeeds, Chazal forbade all grains and vegetables, even those that grew on their own, a prohibition called sefichim, or plants that sprouted.

Several exceptions were made, including that produce of a non-Jew’s field is not prohibited as sefichim. Thus, if the heter mechirah is considered a charade and not a valid sale, the grain and vegetables growing in a heter mechirah field are prohibited as sefichim.

WHY NOT FRUIT?

Chazal did not extend the prohibition of sefichim to fruit because there was less incentive for a cheating farmer. Although trees definitely thrive when pruned and attended to, they will produce even if left unattended for a year. Thus, the farmer has less incentive to tend his trees.

“GUARDED PRODUCE”

I mentioned above that a farmer must allow others to help themselves to the produce that grows on his trees and fields during shmittah. What is the halacha if a farmer refused to allow others access to his produce during shmittah?

The rishonim dispute whether this fruit is forbidden. Some contemporary poskim prohibit the use of heter mechirah fruit on the basis that since heter mechirah is invalid, this fruit is now considered “guarded,” and therefore forbidden. Other poskim permit the fruit because they rule that working an orchard or treating it as private property does not prohibit its fruit.

What about our carrot muffins? If we remember our original story, the company had unwittingly purchased heter mechirah carrots. The hechsher required the company to return all unopened boxes of carrots to the supplier and to find an alternative source. However, by the time I discovered the problem, muffin mix using these carrots had been produced bearing the hechsher’s kashrus symbol and were already distributed. The hechsher referred the shaylah to its posek, asking whether they were required to recall the product from the stores as non-kosher, or whether it was sufficient to advertise that an error had occurred and allow the customer to ask his individual rav for halachic guidance.

What would you advise?

Rav Yehudah Hachassid and His Shidduchin II

In a previous article, we discussed the writings of Rav Yehudah Hachassid, who prohibited or advised against many potential marriages that are otherwise perfectly acceptable according to halachah. But first some background on the chassidei Ashkenaz.

Who was Rav Shmuel Hachassid?

Rav Yehudah Hachassid’s father, known as Rav Shmuel Hachassid, was a very righteous individual who was a great mekubal, one of the baalei Tosafos, and a highly-respected leader of twelfth century Ashkenazic Jewry. Because of his great levels of righteousness, Rav Shmuel Hachassid was also sometimes called Rav Shmuel Hakadosh or Rav Shmuel Hanavi.

Rav Shmuel Hachassid was born in Speyer, one of the bastions of Torah that then existed on the banks of the Rhine River. (People whose family name is Shapiro and its various pronunciations and spellings are probably descended from someone who lived in Speyer; you might be progeny of either Rav Shmuel or Rav Yehudah Hachassid.) Rav Shmuel was the rabbinic leader of the community in Speyer and the head of a yeshivah. He was also the repository of much kabbalistic knowledge, both oral and written, that had been handed down from the generations of great Ashkenazic leaders before him, including many great baalei kabbalah. He became the recognized leader of a scholarly movement whose members were called the Chassidei Ashkenaz, individuals who lived their lives in an other-worldly existence, devoted exclusively to Torah and growth in yiras shamayim. The lengthy Shir Hayichud, recited in many congregations in its entirety after davening on Kol Nidrei evening, is attributed to Rav Shmuel Hachassid.

One of Rav Shmuel’s sons was Rav Yehudah Hachassid, who was born in approximately 4910 (1150). Rav Yehudah Hachassid is also one of the baalei Tosafos, and is quoted several times in the Tosafos printed in the margins of our Gemara (for example, Tosafos, Bava Metzia 5b, s.v. Dechashid; Kesuvos 18b, s.v. Uvekulei). Rav Yehudah Hachassid’s students included a number of famous rishonim who are themselves baalei Tosafos, such as Rav Yitzchok Or Zarua, Rav Elazar ben Rav Yehudah (the Rokeach), Rav Moshe of Coucy (the Semag), and Rav Baruch ben Rav Yitzchok (the Sefer Haterumah).

Rav Yehudah Hachassid also continued his father’s role as the head of the Chassidei Ashkenaz. He followed what we would consider an ascetic relationship to this world. For example, he fasted all day the entire week, eating only in the evenings. His disciple, the Or Zarua, records that Rav Yehudah Hachassid, fasted two days Yom Kippur (Hilchos Yom Kippur, end of #281).

Rav Yehudah Hachassid also authored works on kabbalah and is commonly attributed as the author of the poem Anim Zemiros, sung in many shullen at the end of Shabbos davening. He was also the source of works that can be easily read by the layman, two of which, the Sefer Chassidim and the Tzavaas [the ethical will of] Rav Yehudah Hachassid, are the subjects of today’s article. The Sefer Chassidim includes halacha, minhag, mussar, and commentary on tefillah. This work is mentioned numerous times by the later halachic authorities, as are many of the instructions in his tzavaah. As we will soon discuss, there is some question as to whether he actually wrote the tzavaah or whether he transmitted its content orally and it was recorded by his children or disciples. Rav Yehudah Hachassid graduated to olam haba on Taanis Esther, 4977 (1217), in Regensburg, Germany.

The tzavaah of Rav Yehudah Hachassid

In his ethical will, Rav Yehudah Hachassid prohibits and/or advises against a vast array of practices for which he is the earliest, and sometimes the only, halachic source. Why did Rav Yehudah Hachassid prohibit these actions? Although we are not certain, because he offered no explanation, many later authorities assume that, in most instances, these were practices that Rav Yehudah Hachassid realized are dangerous because of kabbalistic reasons. Rav Shneur Zalman of Liadi (the first Lubavitcher Rebbe, author of Shulchan Aruch Harav and Tanya) is quoted as having said that to understand one of Rav Yehudah Hachassid’s statements in his tzava’ah would require a work the size of the Shelah, a classic of halachah, kabbalah and musar that is hundreds of pages long.

Reasons for the injunctions

Although the considerations behind Rav Yehudah Hachassid’s rulings have been lost to us, several Acharonim proposed various reasons for one of his rulings, that a chosson and his father-in-law or a kallah and her mother-in-law should not share the same given name:

1) Some Acharonim maintain that the prohibitions are in order to avoid ayin hara. Due to the novelty, people would be more apt to talk about such a shidduch and cause an ayin hara (Chida, Peirush Lesefer Chassidim #477; Heishiv Moshe #19; Pri Hasadeh, vol. I, #69).

2) Others contend that if the kallah has the same name as the chosson’s mother, the chosson will be unable to fulfill the mitzvah of kibbud eim when his mother dies, since he will not be able to name a child after her (Maharil #17).

3) Another explanation is that it will cause a lack of respect towards the parents. If the chosson’s name is the same as the kallah’s father, she will inevitably use her husband’s name in her father’s presence (Even Haroshah #31).

The responsum of the Noda Biyehudah

In my earlier article, I mentioned the responsum of the Noda Biyehudah (Shu’t Even Ha’ezer II #79), who explains that the shidduchin that Rav Yehudah Hachassid discouraged are concerns only for his descendants. The Noda Biyehudah also holds that Rav Yehudah Hachassid’s concerns apply only to birth names or names given to sons at their bris, but do not apply to any name changes that take place afterwards. And most importantly, the Noda Biyehudah feels that it is more important to marry off one’s daughter to a talmid chacham than to be concerned about names.

Double whammy

The Chasam Sofer (Shu’t Even Ha’ezer, end of #116) was asked by Rav Shmuel, the av beis din of Balkan, concerning a highly scholarly and qualified bachur whose first name was the same as the father of the girl that was suggested, and whose mother carried the same name as the girl. The Chasam Sofer permitted this shidduch, providing two reasons not cited by the Noda Biyehudah:

The Gemara (Pesachim 110b) explains that sheidim, evil spirits, are concerned only about people who are afraid of them, but that someone not troubled by them will suffer no harm. The Chasam Sofer reasons that the prohibitions of Rav Yehudah Hachassid apply only to people who are concerned about them.

Other authorities accept this conclusion of the Chasam Sofer. For example, after providing an extensive discussion on all the rules of Rav Yehudah Hachassid, the Sdei Chemed (Volume 7, page 20) notes that when he assumed his position as the rav of the Crimea, he discovered that the local populace did not observe any of the rules of Rav Yehudah Hachassid. The Sdei Chemed, who himself was concerned about all of these rules, writes that he thought about mentioning these matters to his community. He subsequently decided against it, reasoning that no harm will come to someone who is not apprehensive.

Following this same approach, Rav Moshe Feinstein rules that such a shidduch should be prevented only if the couple getting married is concerned that one of them shares a name with his or her future parent-in-law. However, if the marrying couple is not disturbed about violating the rules of Rav Yehudah Hachassid, one may proceed with the marriage, even if the parents are — the concern of a parent will not bring harm upon the couple (Shu’t Igros Moshe, Even Ha’ezer 1:4). Similarly, I found a different authority who rules that when the couple makes the shidduch themselves, there is no concern for the rules of Rav Yehudah Hachassid (Sdei Chemed Volume 7, page 21, quoting Heishiv Moshe).

It is reported that someone asked the Chazon Ish regarding a shidduch where the prospective kallah had the same name as the mother of the suggested young man. The Chazon Ish asked the prospective chosson whether he was apprehensive about this. When he responded that he was not at all concerned, the Chazon Ish told him that he could proceed (Pe’er Hador, vol. IV, pg. 90).

It is interesting to note that in another instance, someone asked the Chazon Ish about a situation where the prospective chosson had the same name as the prospective kallah’s father. The Chazon Ish ruled that as long as they do not live in the same city, they could go through with the shidduch. He explained that the whole reason beyond these rulings of Rav Yehuda Hachassid is ayin hara – people should not say “Here are the two Yankels.” However, if they live in different cities, people will not talk about them (Ma’aseh Ish pg. 215).

Others, however, view Rav Yehudah Hachassid’s prohibition differently. For example, some question whether a man whose mother is deceased may marry a woman who has the same name as his late mother. It would seem that, according to most of the reasons mentioned above, one may proceed with this shidduch. Nevertheless, some authorities are opposed, which indicates that they do not accept the reasons cited above (Kaf Hachayim, Yoreh Deah 116:127).

Two versions

Returning to the responsum of the Chasam Sofer, he mentions another reason to be lenient, which requires some explanation. Regarding the concern that a mother-in-law and daughter-in-law, or a son-in-law and father-in-law not share the same name, we find that the two sources attributed to Rav Yehudah Hachassid, the Sefer Chassidim and the tzava’ah, quote different versions of the prohibition. Whereas the tzava’ah states that a man should not marry a woman whose father shares his name, and a woman should not marry a man whose mother shares her given name, the text in the Sefer Chassidim (Chapter 477) states that if a man married a woman named Rivkah whose son also married a woman named Rivkah, then the grandson (the son’s son) should not marry a girl named Rivkah. The version quoted in Sefer Chassidim seems unconcerned about a man marrying a woman who shares his mother’s name or about a woman marrying a man with her father’s name. The Chasam Sofer concludes that the tzava’ah of Rav Yehudah Hachassid should also be understood this way.

Similar to the comment of the Chasam Sofer, the Chachmas Odom (123:13) notes that Rav Yehudah Hachassid clearly meant the same in both places, and that the Sefer Chassidim is written more accurately. Therefore, these two great authorities rule that even Rav Yehudah Hachassid was never concerned about a woman marrying someone whose mother shares her name, or a man marrying a woman whose father shares his.

Other lenient reasons

Although these three authorities, the Noda Biyehudah, the Chasam Sofer and the Chachmas Odom, are basically not concerned with the commonly understood application of Rav Yehudah Hachassid’s tzava’ah, other authorities are concerned, but provide additional reasons and applications when the concerns of Rav Yehudah Hachassid do not apply. Some mention that one need not be concerned where the two parties spell their names differently, even when they pronounce the name the same way (quoted in Sdei Chemed, Volume 7, page 17). However, the Sdei Chemed (Volume 7, page 20) concludes that the spelling should make no difference: either way, one should be concerned.

Variances of the name

The Kaf Hachayim (Yoreh Deah 116:12) mentions a dispute whether there is a concern when the mother-in-law and daughter-in-law have somewhat different names. For example, may a woman named Rivkah Rachel marry a man whose mother’s name is Rachel, since their names are not identical? Some feel that this is relevant when the woman now being considered for the shidduch is called Rivkah, but does not provide any basis for lenience if, indeed, she uses Rachel regularly as part of her name. According to this opinion, if she chooses to add another name to avoid the concern of Rav Yehudah Hachassid, she should be called only by the new name (Kaf Hachayim, Yoreh Deah 116:126).

Similarly, some rule that if the son-in-law is known by two different names, some people calling him by one name and others by a different name, there is no concern if the potential father-in-law has one of these names (see Sdei Chemed Volume 7, pages 17).

On the other hand, Rav Moshe Feinstein rules there is concern only if the full given names of both the mother-in-law and daughter-in-law (or the father-in-law and son-in-law) are identical. Prevalent practice follows this approach. An example is that my rosh yeshivah Rav Yaakov Yitzchak Ruderman, was not concerned that his daughter marry Rav Shmuel Yaakov Weinberg, notwithstanding that both father-in-law and son-in-law used the named Yaakov alone as their primary name.

Different English names

Rav Moshe Feinstein rules that if the father-in-law and son-in-law (or mother-in-law and daughter-in-law) have different English names, there is no concern, even if they share identical Hebrew names.

Changing the name

Some earlier authorities suggest that the chosson or the kallah change their name or add to it. For example, when someone asked the Chasam Sofer about having his daughter marry someone who shares his name, he advised them to have the chosson change his name (Pischei Teshuvah, Even Ha’ezer 2:7, in the name of the Kerem Shlomo).

Rav Moshe Feinstein accepted this approach of the Chasam Sofer in theory. However, in a responsum on the topic, he wrote not to rely on changing the name since, at the time and place that he wrote his teshuvah, people would continue to use the original name. A name change means that the person is now called by the new name.

Stricter approaches

There are, however, other authorities who are more concerned about violating the instructions of Rav Yehudah Hachassid and challenge or ignore the above heterim (quoted in Sdei Chemed Volume 7, pages 17 ff. ; Kaf Hachayim, Yoreh Deah 116:125).

In conclusion

I leave it to the individual to discuss with his or her posek whether or not to pursue a particular shidduch because of an identical name or a different concern raised by Rav Yehudah Hachassid. Of course, we all realize that the most important factor is davening, asking Hashem to provide the appropriate shidduch quickly.

May an Ashkenazi Eat Sirloin?

“And Yaakov was left alone, and a man wrestled with him until daybreak. When the man realized that he was unable to defeat Yaakov, he struck the “kaf” of Yaakov’s thigh, which became dislocated as a result of the wrestling. And the sun rose as Yaakov passed Penuel, and he was limping because of his injured thigh. Therefore, the descendants of Yisroel do not eat the sciatic sinew to this very day, for the man struck Yaakov on that sinew, dislocating it” (Breishis 32:25-26, 32-33).

With these words, the Torah introduces us to the mitzvah of gid hanosheh, which forbids us from eating the sciatic nerve, a sinew that runs from the lower back over the top of the hip and down the leg, at which point it divides into other nerves. The Hebrew word gid describes stringy body parts whose texture is too tough to chew comfortably, and may refer to nerves, tendons, ligaments, or even blood vessels (see Rambam, Peirush Hamishnayos, Zevachim 3:4). It is noteworthy that the Chinese word for the Kai Feng Jewish community was “the people who remove the sinew,” referring to the gid hanosheh; thus the observance of this mitzvah became the identifying description of the Jews.

An entire chapter of Mishnah and Gemara (the seventh chapter of Chullin) is devoted to the halachic discussion of this mitzvah, which is the third mitzvah mentioned in the Torah. The Gemara (Chullin 91a) there teaches that there is an inner gid that lies along the bone which is prohibited min hatorah, and an outer gid that lies along the meat, which is prohibited only miderabbanan. In addition, a layer of protective fat that surrounds the gid is also prohibited miderabbanan.

The Mishnah (Chullin 96a) records a dispute regarding how much of the nerve must be removed: the Tanna Kamma rules that one must remove the entire gid, whereas Rabbi Yehudah rules that one need remove only the main part of the gid. Both opinions agree that the Torah forbade only that part of the gid that lies on the top of the hip (the “kaf” of Yaakov’s thigh). According to the Tanna Kamma, the rest of the nerve is prohibited as a rabbinic injunction. Rabbi Yehudah contended that the rest of the nerve is not prohibited even miderabbanan, and therefore he did not require its removal (Chullin 96a). (The Ritva, Chullin 92b, contends that, according to some opinions, the entire main nerve and its branches are forbidden min hatorah.)

The Mishnah teaches that the mitzvah of gid hanosheh applies to all kosher mammals. This includes species of beheimah, i.e., domesticated kosher species such as cattle and sheep, and species of chayah, i.e., kosher species that are usually (but inaccurately) categorized as wild or non-domesticated species. (I discuss this inaccuracy more extensively in a different article.) Gid hanosheh does not apply to poultry, since the thigh of a bird is shaped differently and therefore has no “kaf.” Therefore, there is no need to remove this sinew from kosher birds.

There is a major difference between the prohibitions of gid hanosheh and cheilev. Whereas gid hanosheh applies to beheimah and chaya species, the Torah’s prohibition of consuming certain fats – predominantly those attached to the stomachs and the kidneys – applies only to species of beheimah, but not to chayah species (Mishnah Chullin 89b).

Another mitzvah that is affected by whether a species is a chayah or a beheimah: the mitzvah of kisuy hadam, covering the blood immediately following shechitah. This mitzvah applies only to fowl and chayah species, but not to beheimah species (Mishnah Chullin 83b). We therefore have three different types of meat species that have variant halachos pertaining to three different mitzvos: Gid hanosheh applies to beheimah and chayah, but not to birds; Cheilev applies to beheimah, but not to chayah and birds. Kisuy hadam applies only to chayah and birds, but not to beheimah.

It is important to note that the halachic definitions of beheimah and chayah are unclear. Since we are uncertain which species are considered beheimah and which are considered chayah, we are stringent and treat any species of which we are uncertain as both beheimah and chayah lechumrah, unless we have a mesorah, an oral tradition, about the halachic status of this specific species (see Shach, Yoreh Deah 80:1 as explained by Pri Megadim). Thus, we forbid the cheilev for any such species, because it might be a beheimah, yet its blood is covered after slaughter, because it might be a chayah. Since we are uncertain whether or not it is a chayah, the blood is covered without reciting the bracha one usually recites before performing this mitzvah.

The Shulchan Aruch (Yoreh Deah 28:4) rules that one does not perform kisuy hadam for a buffalo; this determines it to be a beheimah. (He is presumably referring to the Asian water buffalo, which was domesticated in Southern Europe hundreds of years before the Shulchan Aruch.) The Rama (ad loc.) however rules that the status of the buffalo is uncertain. According to both opinions, the cheilev is forbidden — according to the Shulchan Aruch, definitely forbidden as the cheilev of a beheimah, and according to the Rama, out of doubt. There are, also, several other bovine type species such as the yak, the African Cape buffalo, and both the American and the European bison, all of which should probably be considered a safek if they are a chayah or a beheimah, and therefore their cheilev is prohibited misafek and their blood must be covered without a bracha. (See Chullin 59b and 80a; Gra and Pri Chodosh to Yoreh Deah 80; Ohr Somayach, Ma’achalos Asuros, Chapter 1).

TRABERING

Since the Torah prohibits consuming both cheilev and the gid hanosheh, these forbidden parts must be removed from an animal before its meat can be eaten. This process is called “trabering,” a Yiddish word that derives from tarba, the Aramaic word for cheilev. The Hebrew word for the process is “nikur,” excising, and the artisan who possesses the skill to properly remove it is called a menakeir (pl. menakerim). In truth, both the words traber and the word nikur are also used to describe the kosher butchering performed in the front part of the animal, called the forequarters, to remove blood vessels and some fat; however, I will be using the words traber and nikur to mean the more difficult task of trimming the hindquarters from the gid hanosheh and the cheilev. Although there is no absolute delineating point defining where the forequarters end and the hindquarters begin, the butcher usually counts the ribs, of which there are thirteen, and slices around the twelfth, considering the area below it to be part of the hindquarters. (The first rib is the one closest to the neck.) As we will discover shortly, not all halachic authorities accept that the meat above the twelfth rib should be treated as part of the forequarters.

Removing the gid hanosheh and forbidden fats from the hindquarters is an extremely arduous process that requires much skill and patience. It is interesting to note that the Rama (Yoreh Deah 64:7 and 65:8) points out twice that nikur cannot be learned from a text, only through apprenticeship. The Mishnah refers to a dispute among Tanna’im whether observant butchers can be trusted to remove the gid hanosheh and the non-kosher fats, Rabbi Meir contending that we cannot trust them, since removing them is highly tedious (Chullin 93b). In Rabbi Meir’s opinion, someone else must double check after the menakeir is finished, to see that the trabering was performed correctly. The halacha does not follow Rabbi Meir, and technically one may rely on a trained yarei shamayim menakeir to do the job properly. However, in many places the custom was more stringent.

SIXTEENTH CENTURY POLAND

The Maharshal reports that most of the menakerim in his day did not perform an adequate job — when they had a heavy workload, one would find that they failed to remove all the cheilev. The Maharshal notes that the menakeir must be not only well trained in his practice, but also a yarei shamayim who is meticulous in the work, and that one should not rely on just any typical menakeir. He also quotes an earlier authority, the Maharam Mintz, who did not eat meat after nikur until it was checked by a second menakeir. Since he had this policy all the time, he was able to avoid implying that any particular menakeir was careless or incompetent. The Maharshal praises this practice highly, noting that the original menakeir is more careful knowing that someone else will discover if he is sloppy. He reports that, after observing much inadequate nikur, he himself followed this approach of the Maharam Mintz not to eat meat unless a second menakeir had checked the first one’s work (Yam Shel Shelomoh, Chullin 1:2, 7:19; Be’er Heiteiv, Yoreh Deah 65:6).

NOT USING HINDQUARTERS

Since most of the forbidden fats and the entire gid hanosheh and all its tributaries are in the hindquarters, in many places the custom developed for Jews to eat only the meat of the forequarters, thus considerably simplifying the trabering process. The earliest source I have located that mentions this practice is a responsum from the Radbaz (Shu’t #162), who was the Chief Rabbi of Egypt almost five hundred years ago – and a Sefardi. (This is itself an interesting observation, since the practice of nikur of hindquarters is far more common today among Sefardim than among Ashkenazim.) The Radbaz had been asked about a local custom to slaughter on the eastern side of a building, apparently a Moslem custom of the time: The question was whether this practice violates halacha, since it is a Moslem practice. The Radbaz rules that one may slaughter on the eastern side, since there was nothing idolatrous about this practice. The reason a Jew would slaughter on the eastern side was because the Jews used only the forequarters and left the hindquarters plus the non-kosher slaughtered animals (neveilos utreifos, those found to be halachically imperfect or where an error occurred during the shechitah). These were then sold to Moslems, who would not eat them unless they were slaughtered on the eastern side. Radbaz approved the practice not to traber the hindquarters, since expert menakerim are hard to find.

ASHKENAZIC 18^TH AND 19^TH CENTURY PRACTICES

In central Europe of the late eighteenth and early nineteenth century, we find that local need determined whether trabering was performed on the hindquarters. Someone asked the Noda BiYehudah (Yoreh Deah II #31) whether he should be concerned about the meat located on the forequarters. The Noda BiYehudah contended that some of the fat located between the 11^th and the 12^th rib is cheilev that requires removal by an expert menakeir. The Noda BiYehudah notes that in Prague, where he was the Rav, the area past the 11^th rib was trabered by the menakerim who were expert in trabering the hindquarters. In his opinion, if there are no menakerim in town who know how to traber the hindquarters, then one should use only the meat above the eleventh rib.

The Chasam Sofer (Shu’t Yoreh Deah #68) disagreed with the Noda BiYehudah, contending that any fat located above the 13^th rib is not cheilev and is removed only because of custom. If the place has expert menakerim available, then they should trim the area beyond the 12^th rib. However, if there are no experts available, it is acceptable to have regular butchers trim the area between the 12^th and the 13^thribs.

Thus, one sees from both of these responsa that in their day, whether a community used meat of the hindquarters meat depended on local custom and the expertise of the local butchers. Many communities did not use the hindquarters meat at all, but sold it as non-kosher, because they lacked skilled menakerim. However, communities that had skilled menakerim utilized their talents and enjoyed kosher hindquarters meat. Clearly, neither the Noda BiYehudah nor the Chasam Sofer was concerned about using the hindquarters, as long as expert menakerim are involved.

On the other hand, about this period of time we see that in some places it was becoming accepted practice not to traber the hindquarters. In a teshuvah dated the day after Tisha B’Av 5625 (1865), Rav Shamshon Rephael Hirsch wrote to Rav Yissochor Berish Bernstein, the Av Beis Din and Rosh Yeshiva of the Hague, that one should not relax the custom “already established by our fathers and grandfathers” to refrain from the practice of trabering (Shemesh Marpei #34).

Although nikur continued to be practiced in the 20^th century, in Ashkenazic communities it became the exception rather than the norm. The Aruch Hashulchan notes (Yoreh Deah 64:54, 65:31) that most places did not perform nikur on the hindquarters and instead sold them to non-Jews, although there were still places where it was practiced, including his own city, where very tight controls were kept to insure that it was performed properly.

POLAND, 1936

The practice not to use the hindquarters was, apparently, universally accepted in Poland by the first third of the twentieth century. Because of a very sad turn of events, this practice created a very unfortunate shaylah. In 1936, the Polish Parliament, influenced by anti-Semitism from neighboring Nazi Germany, banned shechitah and permitted it only for Jewish consumption. The law specified that non-Jews could eat no part of the kosher slaughtered meat. Although they officially claimed that this was in order to recognize the Jews’ freedom of religion, in reality, this law implied that the Judaic practice of shechitah is inhumane.

This created a shaylah, since the custom existed not to traber and eat from the hindquarters. In essence, the accepted practice treated the entire hindquarters as non-kosher. However, being stringent under the new circumstances would make the price of meat prohibitively expensive, since the entire cost of the animal would have to be absorbed by the sale of its forequarters.

A halachic issue now came to the forefront. Once a custom has been established as accepted practice, it has the status of a vow that may not be rescinded (Shulchan Aruch, Yoreh Deah 214:2). Did the practice of refraining from eating the meat of the hindquarters have the status of a minhag that could not be rescinded?

Rav Chayim Ozer Grodzenski, the posek of the generation, ruled that it was permitted to reintroduce the practice of trabering the hindquarters by experienced, G-d-fearing experts. In his opinion, the practice not to traber the hindquarters did not have the status of a vow that may not be rescinded, nor of a minhag that requires hataras nedarim. He ruled that it was simply more practical not to traber, since there was an ample supply of meat without resorting to trabering the hindquarters, and it was simply not worthwhile to bother. Certainly, the practice did not begin at a time when there was compelling reason to traber the hindquarters, and this would serve as adequate reason to reintroduce the practice. Rav Chayim Ozer added that the government’s intent in this evil decree was to forcibly close down shechitah by making it financially non-viable. Thus, he felt that it was a mitzvah to permit the hindquarter meat, in order to demonstrate that the decree would not prevent the Jews from having kosher meat. Furthermore, if it were officially accepted that the hindquarters were permitted, there would be proper supervision of the trabering to guarantee that it was performed properly (Shu’t Achiezer 3:84).

Initially, several Chassidic rabbayim opposed permitting the practice, concerned both about minhag and whether all the people performing nikur would be trained and work with the necessary yiras shamayim. Rav Chayim Ozer then wrote to several of the great rebbes living in Poland at the time, notably the Bobover Rebbe and the Lubavitcher Rebbe, to elicit their support. Both of these rebbes eventually agreed that the needs of the generation called for permitting nikur of the hindquarters, provided it was performed by trained, yirei shamayim menakerim. Thus, all segments of Polish Jewry accepted the decision of Rav Chayim Ozer.

THREE MODERN SHAYLOS

BRUSSELS, 1964

In 1964, Rav Shmaryahu Karelitz, the Rav of Brussels, Belgium, sent Rav Moshe Feinstein zt”l a shaylah whether they could reinstitute the practice of trabering the hindquarters in Belgium, since they found themselves short of kosher meat. Rav Moshe ruled that as long as a proficient menakeir, licensed by an expert Rav, performed the trabering, there was no reason to prohibit this meat. Rav Moshe writes that refraining from using the hindquarters does not have the status of a minhag; simply, it resulted from the fact that butchers did not bother, either because they were easily able to sell the hindquarters as non-kosher, or because the butchers lacked the expertise. However, should it become worthwhile to traber the hindquarters, there is no halachic problem with reintroducing the practice, provided the menakeir is a yarei shamayim and properly trained and licensed (Shu’t Igros Moshe, Yoreh Deah 2:42).

SOUTH AFRICA, 1990

A dissenting position is found in the responsa of Rav Moshe Sternbuch, shlit”a, currently Av Beis Din of the Eidah HaChareidis in Yerushalayim, and formerly rav of a kehillah in Johannesburg, South Africa. During his tenure in South Africa, he was asked about renewing the practice of trabering there, utilizing the skills of an expert menakeir. Rav Sternbuch prohibited the practice, contending that not trabering the hindquarters has the status of a minhag that may not be altered (Teshuvos VeHanhagos 1:418, 419).

UNITED STATES, 21^st CENTURY

Within the last few years, the kosher market has begun regular production of shechitah of animals such as buffalo and deer, species in which removing the gid hanosheh and the cheilev might be financially advisable. I inquired from the OU what their policy is regarding nikur of these hindquarters, and they responded that they permit removing the gid hanosheh, but do not remove the cheilev. This translates into the following: If it is questionable whether a species is a chayah or a beheimah, the hindquarters are not trabered and are sold as non-kosher. However, if the species is one concerning which we have a mesorah to treat it as a chayah, there is no halachic requirement to remove any cheilev from the hindquarters, as we learned in the beginning of this article. The only halachic requirement is to remove the gid hanosheh. Thus, on species such as deer, where there is a halachic mesorah that it is a chayah, the hindquarters are trabered and the gid hanosheh is removed. However, on species such as bison (American buffalo), where there is no mesorah whether it is a chayah or a beheimah, the hindquarters are left untrabered and are sold as non-kosher.

WHY DISTINGUISH BETWEEN CHEILEV AND GID HANOSHEH?

I asked this same question and this is the response they sent me:

“Removing cheilev is difficult and time-consuming, even for those who know how. Removing the gid hanosheh and its subordinate parts is no more difficult than removing veins: one is removing a gid that separates easily from the surrounding meat. Therefore, when we know that an animal is a chayah, we allow the removal of the gid hanosheh. Any animal for which we do not have a mesorah whether it is a beheimah or a chayah, such as buffalo, will be treated as a sofek, and kisuy hadam will be performed, and the hindquarters will not be used for kosher.”

Rav Shamshon Rephael Hirsch explains the mitzvah of gid hanosheh as a message that although the spirit of Eisav will never conquer Yaakov and his descendants, Eisav will be able to hamstring Yaakov and prevent him from standing firmly on two feet. Thus, Yaakov goes through history with an unfirm physical posture and gait. By having to remove the gid hanasheh, whenever Yaakov’s descendants sit down to eat meat, they realize that their continued existence is not dependent on their physical strength and stamina, but on spiritual factors which can never be weakened by Eisav’s might.

Rav Yehudah Hachassid and His Shidduchin

At the end of our parsha, Yaakov is sent eastward to look for a shidduch. This provides an opportunity to discuss:

Rav Yehudah Hachassid and His Shidduchin

Question #1: A Shidduch Crisis

“My husband’s name is Chayim Shelomoh, and an excellent shidduch possibility was just suggested for my daughter. However, the bachur’s name was originally Shelomoh, but as a child, he was ill and they added the name Chayim before Shelomoh. May we proceed with this shidduch?”

Question #2: Must we turn down this shidduch?

“My wife’s name is Rivkah, and we were just suggested an excellent shidduch for my son, but the girl’s name is Esther Rivkah. Must we turn down the shidduch?”

Answer:

Both of these questions relate to rules that are not based on Talmudic sources, but on the writings of Rav Yehudah Hachassid, who prohibited or advised against many potential marriages that are, otherwise, perfectly acceptable according to halachah. But before we even discuss the writings of Rav Yehudah Hachassid, let us discover who he was and why his opinion carries so much weight.

Who was Rav Yehudah Hachassid?

Well, to complicate matters a bit, there were two people in Jewish history who were called Rav Yehudah Hachassid. These two individuals lived hundreds of years apart, and, to the best of my knowledge, had no known connection to one another, other than that they were both esteemed Ashkenazic leaders in their respective generations. The Rav Yehudah Hachassid of the seventeenth century, famed as the builder of a shul in the Old City of Jerusalem, now called the churva shul, spearheaded the first “modern” effort to establish an Ashkenazi community in the holy city. Although this failed attempt had political and practical ramifications that lasted until the middle of the twentieth century, I have never heard him blamed for the blocking of a potential shidduch.

On the other hand, the much earlier Rav Yehudah Hachassid, whose writings and rulings will be discussed in this article, was a great posek and mekubal, whose halachic decisions and advice have been extensively followed by both Ashkenazim and Sefardim.

Rav Yehudah Hachassid, who was born in approximately 4910 (1150), is quoted several times in the Tosafos printed in our Gemara (for example, Tosafos, Bava Metzia 5b, s.v. Dechashid and Kesuvos 18b, s.v. Uvekulei). Rav Yehudah’s students included a number of famous rishonim who are themselves Baalei Tosafos, such as the Or Zarua, the Rokeach, the Semag, and the Sefer Haterumah.

Rav Yehudah Hachassid was the head of a select group of mekubalim called the Chassidei Ashkenaz. He authored numerous works on kabbalah and was the author of the poem Anim Zemiros, sung in many shullen at the end of Shabbos davening. Two works of his are intended for use by the common laymen, the Sefer Chassidim and the Tzavaas [the ethical will of] Rav Yehudah Hachassid, and these mention the subject of today’s article.

The tzava’ah of Rav Yehudah Hachassid

I am not going to list everything in Rav Yehudah Hachassid’s tzava’ah, but, instead, will simply cite some of the practices that he prohibits.

A man should not marry a woman who has the same name as his mother, nor should he marry a woman whose father has the same name that he has. Rav Yehudah Hachassid closes by saying: if people violated these instructions, one of the parties with the name in common should change his/her name — perhaps this will provide some hope. He does not specify what the harm is or what the hope is for.

Two mechutanim should not have the same name.

Two mechutanim should not make two shidduchim, a son with a daughter and a daughter with a son.

One should not marry one’s niece, either his brother’s daughter or his sister’s daughter.

A father and son should not marry two sisters.

Two brothers should not marry two sisters, nor should they marry a mother and her daughter.

A stepbrother and a stepsister should not marry.

Two married brothers should not live in the same city.

Before we get everyone disturbed, I will share with you that many of these relationships prohibited (or advised against) by Rav Yehudah Hachassid are not recognized as binding by later authorities. For example, the Chofetz Chayim’s first rebbitzen was his step-sister: he married the daughter of his step-father, who had already married the Chofetz Chayim’s widowed mother. Similarly, I know of numerous instances in which two brothers married two sisters, without anyone being concerned about it. And the Tzemach Tzedek of Lubavitch mentions that one need not be concerned about pursuing a shidduch in which the fathers of the chosson and the kallah have the same given name (Shu’t Tzemach Tzedek, Even Ha’ezer #143).

Selective service

In most places, the only shidduchin-related rule of Rav Yehudah Hachassid that has been accepted is that a man not marry a woman who has the same given name as his mother, nor should a woman marry a man who has the same name as her father. Why is this rule more accepted than any of the others?

Early poskim note that the custom of being concerned about this was far more widespread than concern about the other prohibitions of Rav Yehudah Hachassid. They propose several reasons to explain why this is true.

One answer is because the Arizal was also concerned about a man marrying a woman whose name is the same as his mother. Yet, there is no evidence of the Ari or other authorities being concerned regarding the other rules of Rav Yehudah Hachassid (see Shu’t Mizmor Ledavid of Rav David Pardo, #116, quoted by Sdei Chemed, Volume 7, page 17; Shu’t Divrei Chayim, Even Ha’ezer #8).

Another possible reason is that the Chida writes that he, himself, saw problems result in the marriages of people who violated this specific prohibition of Rav Yehudah Hachassid.

Rav Chayim Sanzer adds that one should be concerned about this particular practice only because klal Yisroel has accepted as custom to pass up these marriages. To quote him: If the children of Israel are not prophets, they are descended from prophets, and there is an innate understanding that these shidduchin should not be made.

The responsum of the Noda Biyehudah

No discussion of the instructions of Rav Yehudah Hachassid is complete without mentioning a responsum of the Noda Biyehudah, the rav of Prague and posek hador of the eighteenth century. The Noda Biyehudah (Shu’t Even Ha’ezer II #79) discusses the following case: A shidduch was suggested for the sister-in-law of a certain Reb Dovid, a close talmid of the Noda Biyehudah, in which the proposed chosson had once had his name changed, because of illness, to the name of the girl’s father. The Noda Biyehudah replied to Reb Dovid that generally he does not discuss questions that are not based on sources in Talmud and authorities. Nevertheless, he writes that he will break his usual rules and answer the inquiry.

First, the Noda Biyehudah points out a very important halachic principle: No talmid chacham may dispute any halachic conclusion of the Gemara, whether he chooses to be lenient or stringent, and anyone who does is not to be considered a talmid chacham. Upon this basis, the Noda Biyehudah notes that we should question the entire tzava’ah of Rav Yehudah Hachassid, since the work forbids numerous practices that run counter to rulings of the Gemara. To quote the Noda Biyehudah, “We find things in Rav Yehudah Hachassid’s tzava’ah that are almost forbidden for us to hear.” The examples the Noda Biyehudah chooses include:

One should not marry one’s sister’s daughter. However, the Gemara (Yevamos 62b) rules that it is a mitzvah to do so.

Rav Yehudah Hachassid prohibited a father and son from marrying two sisters, yet we see that the great amora Rav Papa arranged the marriage of his son to his wife’s younger sister (Kesubos 52b).

Another example is that Rav Yehudah Hachassid writes that two brothers should not marry two sisters, yet the Gemara (Berachos 44a) writes approvingly of these marriages. Furthermore, the amora, Rav Chisda, arranged for his two daughters to marry two brothers, Rami bar Chamma and Ukva bar Chamma (ibid.).

Explaining Rav Yehudah Hachassid’s concern

The Noda Biyehudah continues: “However, out of esteem for Rav Yehudah Hachassid, we must explain that in his great holiness, he realized that the shidduchin he was discouraging would all be bad for his own descendants. Therefore, Rav Yehudah Hachassid’s comments do not conflict with the Gemara, since he was writing a special ruling for individuals that should not be applied to anyone else. Therefore, Reb Dovid does not need to be concerned about his sister-in-law proceeding with this shidduch.

The Noda Biyehudah presents an additional reason why Reb Dovid does not need to be concerned: Rav Yehudah Hachassid’s concerns apply only to birth names or names given to sons at their bris, but do not apply to any name changes that take place afterwards. The Noda Biyehudah rallies proofs that adding or changing a name because of illness can only help a person and cannot hurt. In addition, the Noda Biyehudah reasons that if someone was an appropriate shidduch because of his birth name, changing or adding to his name cannot now make this shidduch prohibited.

Marry a talmid chacham

Aside from the other reasons why the Noda Biyehudah feels that this shidduch can proceed, he adds another rule: It is more important for someone to marry off his daughter to a talmid chacham, which the Gemara says is the most important thing to look for in a shidduch, than to worry oneself about names, a concern that has no source in the Gemara.

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

My husband’s name is Chayim Shelomoh, and a shidduch was just suggested for my daughter of a bachur whose name was originally Shelomoh, but as a child, he was ill, and they added the name Chayim before Shelomoh. May we proceed with this shidduch?

According to the Noda Biyehudah, one may proceed with the shidduch, even if the younger Chayim Shelomoh does not qualify as a talmid chacham and even if they are descended from Rav Yehudah Hachassid, since the name Chayim was not part of his birth name.

Stricter approaches

On the other hand, there are other authorities who are more concerned about violating the instructions of Rav Yehudah Hachassid and do not mention any of the above heterim (quoted in Sdei Chemed Volume 7, pages 17- 20; Kaf Hachayim, Yoreh Deah 116:125). These authorities supply a variety of reasons why the arguments of the Noda Biyehudah do not apply. As far as the Noda Biyehudah’s statement that Rav Yehudah Hachassid could not have banned that which is expressly permitted, or even recommended, in the Gemara as a mitzvah, some respond that, although at the time of the Gemara there was no need to be concerned about the kabbalistic problems that these concerns may involve, our physical world has changed (nishtaneh hateva), and there is therefore, currently, a concern of ayin hora (quoted by Sdei Chemed page 19).

In conclusion

I leave it to the individual to discuss with his or her posek whether or not to pursue a particular shidduch because of an identical name or one of the other concerns raised by Rav Yehudah Hachassid. Of course, we all realize that the most important factor in finding a shidduch is to daven that Hashem provide the appropriate shidduch in the right time.

For the continuation of this discussion, see part II of this article.