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A Shmittah Glossary

This Shabbos is parshas Ki Savo, 10 days before Rosh Hashanah of shmittah year.

We are at the end of the sixth year of the shmittah cycle. Most chutz la’aretz residents are not that familiar with the laws of shmittah that will affect those who live in Eretz Yisroel every day next year. Actually, the laws can and do affect people living in chutz la’aretz also. This article will focus on explaining a basic glossary of shmittah-related terms.

Among the terms that we will learn are the following:

Biur

Havla’ah

Heter mechirah

Heter otzar beis din

Issur sechorah

Kedushas shvi’is

Ne’evad

Otzar beis din

Pach shvi’is

Sefichin

Shamur

Tefisas damim

First, let us discuss the basics:

Basic laws of the land

In Parshah Behar, the Torah (Vayikra 25:1-7) teaches that every seventh year is shmittah. We are prohibited from plowing, planting or working the land of Eretz Yisroel in any way and must leave our land fallow. It is even prohibited to have a gentile work a Jew’s land (Avodah Zarah 15b), just as one may not hire a gentile to do work on Shabbos that a Jew may not do. The owner of a field or orchard must treat whatever grows on his land as ownerless, allowing others to enter his field or orchard to pick, without charge, as much as their families can use. The landowner himself also may pick as much as his family will eat (see Rambam, Hilchos Shmittah 4:1).

The landowner should make sure that others know that they may help themselves to the produce. One may not sell, in a business manner, the produce that grows on its own.

Kedushas shvi’is

The Torah declared vehoysah shabbas ha’aretz lochem le’ochlah, “the produce of the shmittah should be used only for food” (Vayikra 25:6), thereby imbuing the fruits and vegetables that grow in shmittah year with special sanctity, called kedushas shvi’is. There are many ramifications of this status, such as, the produce that grows during shmittah year should be used only for consumption and should be eaten (or drunk) only in the usual way. For example, one may not cook foods that are usually eaten raw, nor may one eat raw produce that is usually cooked (Yerushalmi, Shvi’is 8:2; Rambam, Hilchos Shvi’is 5:3). One may not eat raw shmittah potatoes, nor may one cook shmittah cucumbers or oranges. It would certainly be prohibited to use shmittah corn for gasohol or any other form of biofuel.

Contemporary authorities dispute whether one may add shmittah oranges or apricots to a recipe for roast or cake. Even though the fruit adds taste to the roast or cake, many poskim prohibit this cooking or baking, since these types of fruit are usually eaten raw (Shu”t Mishpat Cohen #85). Others permit this if it is a usual way of eating these fruits (Mishpetei Aretz page 172, footnote 10).

Similarly, juicing vegetables and most kinds of fruit is considered “ruining” the shmittah produce and is prohibited, although one may press grapes, olives and lemons, since the juice and oil of these fruits are considered superior to the fruit itself. Many contemporary authorities permit pressing oranges and grapefruits, provided one treats the remaining pulp with kedushas shvi’is. Even these authorities prohibit juicing most other fruit, such as apples and pears (Minchas Shlomoh, Shvi’is pg. 185).

Food and not feed

One may feed shmittah produce to animals only when it is not fit for human consumption, such as peels and seeds that people do not usually eat (Rambam, Hilchos Shmittah 5:5). Last shmittah, a neighbor of mine, or perhaps his turtle, had a problem: The turtle is fond of lettuce, and won’t eat grass. One may feed animals grass that grew in Eretz Yisroel during shmittah, but one may not feed them lettuce that grew during shmittah.

Jewish consumption

Shmittah produce is meant for Jewish consumption; one may not give or sell kedushas shvi’is produce to a gentile, although one may invite a gentile to join your meal that includes shmittah food (Rambam, Hilchos Shmittah 5:13 as explained by Mahari Korkos).

Although some authorities rule that there is a mitzvah to eat shmittah produce, most contend that there is no obligation to eat shmittah food – rather, the Torah permits us to eat it (Chazon Ish, Hilchos Shvi’is 14:10).

Don’t destroy edibles

One may not actively destroy shmittah produce suitable for human consumption. Therefore, one who has excess shvi’is produce may not trash it in the usual way.

Peels that are commonly eaten, such as apple peels, still have kedushas shvi’is and may not simply be disposed. Instead, we place these peels in a plastic bag and then place the bag in a small bin or box called a pach shvi’is, where it remains until the food is inedible. When it decomposes to this extent, one may dispose of the shmittah produce in the regular garbage.

Why is this true?

Once the shmittah produce can no longer be eaten, it loses its kedushas shvi’is. Although the concept that decay eliminates sanctity seems unusual, this is only because we are unfamiliar with the many mitzvos where this principle applies. There are several other mitzvos where, in theory, this rule applies – meaning that the items have kedushah that governs how they may be consumed, but once they are no longer edible, this kedushah disappears. The mitzvos that this rule applies to are terumah, challah, bikkurim, revai’i and maaser sheini. However, although this rule applies to these mitzvos, in practice we cannot observe it since produce that has kedusha cannot be consumed by someone who is tamei (Rambam, Hilchos Terumos Chapter 11; Hilchos Maaser Sheini 3:11). This explains why most people are unfamiliar with the rules of kedushas shvi’is.

When eating shmittah food, one need not be concerned about the remaining bits stuck to a pot or an adult’s plate that one usually just washes off; one may wash these pots and plates without concern that one is destroying shmittah produce. However, the larger amounts left behind by children, or leftovers that people might save should not be disposed in the garbage. Instead, they can be scraped into the pach shvi’is.

Issur sechorah – commercial use

One may not harvest the produce of one’s field or tree in order to sell it in commercial quantities or in a business manner (Tosefta, Shvi’is 5:7; Rambam, Hilchos Shmittah 6:1). For example, 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).

Tefisas damim

If one trades or sells shmittah produce, the food or money received in exchange becomes imbued with kedushas shvi’is. This means that the money should be used only to purchase food that will itself now have the laws of shmittah produce. The original produce also maintains its kedushas shvi’is (Sukkah 40b).

Havla’ah

At this point, we must discuss a very misunderstood concept called havla’ah, which means that one includes the price of one item with another. The Gemara (Sukkah 39a) describes using havla’ah to “purchase” an esrog that has shmittah sanctity, without the money received becoming sanctified with kedushas shvi’is. For example, Reuven wants to buy an esrog from Shimon; however, Shimon does not want the money he receives to have kedushas shvi’is. Can he avoid this occurring?

Yes, he may. If Shimon sells Reuven two items at the same time, one that has kedushas shvi’is and the other does not, he should sell him the item that does not have kedushas shvi’is at a high price, and the item that has kedushas shvi’is accompanies it as a gift. This method works, even though everyone realizes that this is a means of avoiding imbuing the sales money with kedushas shvi’is.

Shamur and ne’evad

According to many (and perhaps most) rishonim, if a farmer did not allow people to pick from his fields, the shmittah produce that grew there becomes prohibited (see Ra’avad and Ba’al Ha’maor to Sukkah 39a). This produce is called shamur. Similarly, many authorities prohibit consuming produce that was tended in a way that violated the agricultural laws of shmittah (Ramban, Yevamos 122a). This produce is called ne’evad.

Shmittah exports

The Mishnah (Shvi’is 6:5) prohibits exporting shmittah produce outside Eretz Yisroel. Some recognized authorities specifically permit exporting shmittah wine and esrogim, although the rationales permitting this are beyond the scope of this article (Beis Ridbaz 5:18; Tzitz Hakodesh, Volume 1 #15:4). This approach is the basic halachic reason to permit the export of esrogim that grow during shmittah next year for Sukkos, 5783. (The esrogim for this coming year will all be from the pre-shmittah crop and not involve any shmittah concerns.)

Sefichin

As explained in last week’s article, the prohibition of sefichin does not refer to perennials that do not require planting every year. Although trees and other perennials definitely thrive when pruned and cared for, most will produce even if left unattended for a year and the farmer has less incentive to violate shmittah by tending his trees.

Thus, tree fruits, nuts, strawberries and bananas do not involve the prohibition of sefichin. (If they grew in a field whose owner was not observing shmittah, they might involve the prohibition of shamur.)

Biur shevi’is

At this point in our discussion, we need to explain the concept of biur shvi’is. The word biur literally means elimination, as in biur chometz, which refers to the eradication of chometz performed each year before Pesach. One of the laws that applies to shmittah produce is that once a specific species is no longer available in the field, one can no longer keep shmittah produce from that species in one’s possession. At this point, one must perform a procedure called biur shvi’is. Although there is a dispute among the rishonim as to the exact definition and requirements of biur shvi’is, we rule that it means declaring ownerless (hefker) any shmittah produce in one’s possession (Ramban, Vayikra 25:7; cf. Rashi, Pesachim 52b s.v. mishum and Rambam, Hilchos Shmittah 7:3 for alternative approaches.) For example, let us say that I picked shmittah apricots and canned them as jam. When no more apricots are available in the field, I must take the remaining jam and declare it hefker in the presence of three people (Yerushalmi, Shvi’is 9:5). I may do this in front of three close friends who will probably not take the jam after my declaration; it is sufficient that they have the right to take possession. If someone fails to perform biur, the shmittah produce becomes prohibited.

Otzar beis din

What is an otzar beis din? Literally, the words means “a storehouse operated by beis din.” Why would a beis din be operating a storehouse? Did they need to impound so much merchandise while doing litigation? No, let me explain.

As mentioned above, the owner of an orchard may not harvest his produce for sale, and he must allow individuals to help themselves to what their family may use. But what about people who live far from the orchard? How will they utilize their right to pick shmittah fruit?

Enter the otzar beis din to help! The beis din represents the public interest by hiring people to pick and transport the produce to a distribution center near the consumer. Obviously, no one expects the pickers, sorters, truckers, and other laborers to work as unpaid volunteers; they are also entitled to earn a living. Similarly, the managers who coordinate this project are also entitled to an appropriate wage for their efforts. Furthermore, there is no reason why beis din cannot hire the owner of the orchard to supervise this massive project, paying him a wage appropriate to his significant skills and experience in knowing how to manage this operation. This is all legitimate use of an otzar beis din.

Who pays for otzar beis din services? The otzar beis din divides its costs among the consumers. The charges to the user should reflect the actual expenses incurred in bringing the products to the consumers, and may not include any profit for the finished product (Minchas Shlomoh, Shvi’is 9:8 pg. 250). Thus, otzar beis din products should cost less than regular retail prices for the same items, since there should be no profit margin. (See Yerushalmi, Shvi’is 8:3 that shvi’is produce should be less expensive than regular produce.)

Please note that all the halachos of kedushas shevi’is apply to otzar beis din produce. Also note that acquiring from an otzar beis din is not really “purchasing” since you are not buying the fruit, but receiving a distribution – your payment is exclusively to defray operating costs. Therefore, the money paid for otzar beis din produce does not have kedushas shvi’is, because it is compensation for expenses and not in exchange for the shmittah fruit (Minchas Shlomoh, Shvi’is 9:8 pg. 250).

Produce still in the possession of an otzar beis din at the time of biur is exempt from biur. The reason is that this product is still without an owner – the otzar beis din is a distribution center, not an owner. However, produce originally distributed through an otzar beis din and now in private possession must be declared hefker.

Heter otzar beis din

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 people to enter his field and help themselves to the produce. If he bars people, then he is violating the basic laws of shmittah and his produce distribution is not according to otzar beis din principles. Similarly, if the field owner treats the produce as completely his own and charges accordingly, this contradicts the meaning of otzar beis din. These cases are disparagingly referred to as heter otzar beis din; meaning they reflect abuse of the concept of otzar beis din.

Conclusion

Those living in chutz la’aretz should be aware of the halachos of shvi’is and identify with this demonstration that the Ribbono Shel Olam created His world in six days, thereby making the seventh day and the seventh year holy.




The Heter Mechirah Controversy

In a few short weeks, we will begin shmittah year. In preparation, I present this article.

Photo by Rodolfo Belloli from FreeImagesOLYMPUS DIGITAL CAMERA

Several shmittah cycles ago, I was working as a mashgiach for a properly run American hechsher. One factory that I supervised manufactured 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. Many 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 produce 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 by which observant farmers were rewarded 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. ein odrin, prohibits; 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 in 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), when there was 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 keep shmittah in full halachic detail. [Apparently, at the same time, there were some Sefardi 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, 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, claiming that the new yishuv could not survive financially if shmittah was 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 hora’as sha’ah, 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, whom 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 steadfastly and expounded on the Divine blessings guaranteed them for observing shmittah. The letter also noted that Klal Yisroel was punished severely in earlier eras 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 adamantly opposed it. He decided not to sell the land himself, but arranged mechirah for those who wanted it through the Sefardi rabbonim in Yerushalayim, who had apparently performed this mechirah in previous years.

What happened? Did the Jewish farmers observe the shmittah as instructed 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 acceded to the pressure and relied on heter mechirah. Apparently, many farmers were subjected to considerable financial and social pressure to evade observance of 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 to it 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 on 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 that shmittah. These rabbonim felt that there was still a need for heter mechirah in 5663. Rav Hertz, himself, passed away before the heter mechirah was finalized, and his son-in-law, Rav Yosef Halevi, 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. 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 that the owner of the farm appointed a rav as his agent to sell the land, similar to what we usually do to arrange selling the chometz. Rav Kook added that a farmer who was not going to observe shmittah but did not appoint a rav to sell his land was included in the mechirah, since it is 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, now, a practical question results that affects a consumer purchasing this farmer’s produce. If the farmer did not authorize the sale, perhaps the produce indeed has the sanctity of shmittah. For this latter reason, many individuals who might otherwise accept heter mechirah produce do not rely on this heter.

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 some 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 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 return to the owner, preempts the violation (Shu’t Shemen Hamor, Yoreh Deah #4), while others permit the sale since its purpose 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 to a gentile who does not worship idols (Sefer Hashmittah, pg. 74; Yalkut Yosef pg. 665, quoting Mizbei’ach 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 designed that sale to incorporate many aspects to avoid this concern (Sefer Hashemittah, pg. 75). However, 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 of 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 on the basis of heter mechirah. Some contend that one may, whereas others rule that both the produce and the pots used to cook this produce become non-kosher. Others follow a compromise position, accepting 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 his circumstances in advance.

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 is as follows:

SEFICHIM

The Torah permitted the use of any produce that grew on its own in a field that was not worked during shmittah. Unfortunately, though, even in the days of Chazal, it was common to find Jews who deceitfully ignored shmittah laws. One practice of 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.

PERENNIALS

Similarly, perennials that do not require planting every year are not included in the prohibition of sefichin. Although perennials benefit when pruned and cared for, most will produce, even if left unattended for a year, and the farmer has less incentive to violate shmittah by caring for such plants.

Thus, tree fruits, nuts, strawberries and bananas do not involve the prohibition of sefichin. If they grew in a field whose owner was not observing shmittah, they might involve the prohibition of shamur, as explained below.)

“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 shamur, “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 (see Shu’t Igros Moshe, Orach Chayim 1:186).

BACK TO OUR CARROT MUFFINS

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 had already been distributed. The hechsher referred the shaylah to its posek, askingwhether they were required to recall the product from the stores as non-kosher, or whether it was sufficient to advertise that an error occurred and allow the customer to ask his individual rav for halachic guidance.

What would you advise?




E-shaylos and Observations on Corona

The following is an e-mail correspondence:

e-shaylah #1:

The Rav wrote (in the previous article written about coronavirus): And yet, few people seem to be attempting to learn any lessons from this. Now and again, I read or hear of an individual Rav expressing his personal takeaways from the crisis, but I have seen and heard no response from a world leader regarding any type of ethical or moral response. Quite the contrary: Politicians have been acting as politicians, rather than as the statesmen whose true leadership we would like to see. I have seen no one act as the King of Nineveh did upon hearing Yonah’s castigation – or, more accurately, Yonah’s threat. The world is filled with more anti-Semitism than since WWII. Israeli politicians are filled with more abhorrent anti-religious anti-Semitism than ever.

I indeed had this question for the Rav since March:

Without a Navi, how are the nations of the world supposed to do the process described above? Eighteen years of searching (since I became frum) concerning the events that caused me and others to do teshuva is a rather vague process; one that I really have only started to maturely focus on over the last year or so. Therefore, if, as a frum Jew, I see events in my life and in the world in general as, at most, a vague impetus to teshuva, how can we expect the nations to start seeking G-dliness as a means out of their predicaments (even of international impact such as coronavirus)?

Answer from YK:

Please read Abraham Lincoln’s second inaugural address. Whether or not you think his exact interpretation is correct, he certainly saw the US civil war as admonition from Hashem about society’s evils, and he had no compunctions in sharing this with the entire US population, as president. Clearly, he understood that his job as president included leading people to do teshuvah.

This is clearly what Hashem is telling Macron, Trump, Putin, Trudeau, Boris Johnson, Modi, MBS, Erdogan, Xi, Merkel, AMLO, Kurtz, and all the rest, whether they want to hear it or not.

e-shaylah #2:

Recent statistics say that dangerous cases of coronavirus now make up 0.6% of the cases. I know that there are halachic authorities who rule that vaccines should be used when the danger rate is 0.1%, as does the Mishnah Berurah when talking about sakana. Are their numbers exact, or were they rounding off?

Meaning, can one say to himself now, the chances of getting into a case of sakana are so low, I have no obligation to worry, since there is a large chance, that I will not catch it altogether, and even if I catch it, the rate of serious illness is very low?

Obviously, this has nothing to do with needing to listen to the government (or how poorly the government might be managing this), nor the cheshbon of getting others sick, and I am not taking into account age differences or previous conditions, since the stats I’m quoting do not. I presume someone my age (45) would have less need to be careful.

Answer from YK:

I believe that you are correct, that for someone in your age range, there is no halachic requirement to be concerned.

e-shaylah #3:

The rav said that it is permitted to endanger oneself for parnasah. Does parnasah permit me to endanger others?

Answer from YK:

To the extent that Corona endangers others, yes. A caravan driver or boatman is not obligated to ask his passengers why they are traveling, even though they are endangering themselves. In other words, they may have no heter to travel, and he is permitted to take them because this is his parnasah. Similarly, I know of no source in halacha that gives anyone permission to insist that a business close, or to otherwise deprive someone of a legitimate parnasah. Any such government action is overreach, even should the danger to most customers be significant. Consequently, any fines are halachically theft.

e-shaylah #4:

Lichvod Rav Kaganoff, shlita

Our eight-year-old son has been complaining about kids bothering him in cheder. He is very makpid about wearing a mask, even when he eats. One of his complaints is that kids pull off his mask.

When we asked his rebbe how he’s doing socially, he answered that he had not noticed any problems, but he did suggest that maybe our son sometimes take off his mask.

Should we tell our son to be somewhat less makpid, such as when they play outside in the yard, or when eating, to see if it will mitigate his difficulties?

Answer from YK:

You should definitely tell your son to take off his mask.

But I suggest that the rebbe switch professions. We need more policemen like him, and rabayim who are more supportive of their students.

e-shaylah #5: This shaylah came from Latin America.

Dina demalchusa dina: ¿Do we have to follow every law regarding Covid? For example, in my country, now, the malls are open, but not the shuls! ¿Do we have to follow this? ¿Are we required to cancel minyanim´s, even if there is only a tiny possibility of getting sick?  Is it permitted to arrange a minyan with 20 to 30-year-olds¿

Answer from YK:

You are permitted to have minyanim with young people. I am not addressing the questions about fines and potential chillul Hashem, since I do not know the atmosphere and attitudes in your community and country. I am simply answering the question as to whether dina demalchusa dina, or the rules of sakanah apply here. They do not.

e-shaylah #6:

Subject: Schooling Question

Dear Rav Kaganoff,

Both the cheder to which I send my younger boys and the seminar (high school) where my older daughter is a student are being lax about upholding the health department Corona rules (the schools do not require that students wear masks). We do not want to send our children to class under these circumstances, especially since I have a medical condition that puts me at a higher risk.  At this moment, all three of these children have their education nearly at a standstill.  I should note that the daughter has been going to the school daily to remind her teachers to call her and include her in the class, but to very little avail.

What does the Rav think?

Answer from YK:

The concerns you raise are valid. A lot of practical errors are being made — I myself am staying in the house for the most part, something that caused me to lose one of my part time jobs.

On the other hand, we need to balance this against children’s social needs to learn proper and appropriate interaction. Difficult to judge.

(Follow up question)

What does the Rav think of the possibility of moving my family to a place where the situation is taken with the appropriate seriousness?  And what does the Rav think of the possibility of my daughter pursuing her limudei chol with an online institution?

(Answer)

I don’t think moving is a good idea; I don’t believe that when you get there you will find that people are taking the situation any more seriously.
I don’t know your daughter, and therefore I cannot make a judgment on this.

e-shaylah #7:

Dear Rav:

Why has there been no decree of taanis or Tehillim?

Answer from YK:

Halachically, it has not reached the levels of mageifah. We see from the Gemara that there are requirements for such things. However, the malfeasance, overreach and poor planning of most governments have resulted in major loss of parnasah for most people in the world, and very possibly could lead to a world recession. These are major halachic concerns, for which there are the requirements of communal tefillos.

e-shaylah #8: What do you think of these observations by Bill Gates?

(note: > introduces my observations on what Gates said.)

“Subject: What is the Corona/Covid-19 Virus Really Teaching Us?

I’m a strong believer that there is a spiritual purpose behind everything that happens, whether that is what we perceive as being good or being bad.”

> A strong start. But unfortunately, I don’t think he truly understands what “spiritual” means, as we will see later. I also deleted a lot of the items he mentioned in this piece as his political opinions and not spiritual observations.

“As I meditate upon this, I want to share with you what I feel the Corona/Covid-19 virus is really doing to us:

1) It is reminding us that we are all equal, regardless of our culture, religion, occupation, financial situation or how famous we are. This disease treats us all equally.

2) It is reminding us that we are all connected, and something that affects one person, has an effect on another. It is reminding us that the false borders that we have put up have little value, as this virus does not need a passport.”

> I am not sure what he intends to accomplish with this last statement.

“3) It is reminding us, by oppressing us for a short time, of those in this world whose whole life is spent in oppression…

“4) It is reminding us of the shortness of life and of what is most important for us to do, which is to help each other, especially those who are old or sick…

“5) It is reminding us of how materialistic our society has become and how, when in times of difficulty, we remember that it’s the essentials that we need (food, water, medicine) as opposed to the luxuries that we sometimes, unnecessarily, give value to.

“6) It is reminding us of how important our family and home life is, and how much we have neglected this. It is forcing us back into our houses, so we can rebuild them into our home and strengthen our family unit.

“7) It is reminding us that our true work is not our job; that is what we do, not what we were created to do. Our true work is to look after each other, to protect each other and to be of benefit to one another.

“8) It is reminding us to keep our egos in check. It is reminding us that no matter how great we think we are or how great others think we are, a virus can bring our world to a standstill.

“9) It is reminding us that the power of freewill is in our hands. We can choose to cooperate and help each other, to share, to give, to help and to support each other or we can choose to be selfish, to hoard, to look after only our self (sic.). Indeed… difficulties bring out our true colors.

“10) It is reminding us that we can be patient, or we can panic. We can either understand that this type of situation has happened many times before in history and will pass, or we can panic and see it as the end of the world and, consequently, cause ourselves more harm than good.”

>After several excellent points, here Bill missed Hashem’s point completely. Neither patience nor panic is the correct response. “Panic” occurs when we feel that no One is in charge. “Patience” implies that Hashem is not teaching us. The lesson here is not from a general observation of mankind and history. It is that Hashem cares — To quote the pasuk in Yirmiyohu (2:30): “For naught have I struck My children, they learned no lesson.” I note that this posuk is in Bill Gates’ Bible, and the lesson is taught in all western religions. But Bill didn’t learn it, either from the Bible or from Honest Abe. Now, back to Bill Gates.

“11) It is reminding us that this can either be an end or a new beginning. This can be a time of reflection and understanding, where we learn from our mistakes, or it can be the start of a cycle which will continue, until we finally learn the lesson we are meant to.”

>This is excellently worded. World, is anyone listening?

“12) It is reminding us that after every difficulty, there is always ease. Life is cyclical, and this is just a phase in this great cycle. We do not need to panic; this, too, shall pass.

> Sorry, Bill. This is exactly the wrong message of Covid-19. Hashem is talking to us, all of mankind. We are not listening.

“13) Whereas many see the Corona/Covid-19 virus as a great disaster, I prefer to see it as a great corrector. It is sent to remind us of the important lessons that we seem to have forgotten, and it is up to us if we will learn them, or not.”

> Here, Bill got it right.

Not since Migdal Bavel has there been such an opportunity for the world to truly unite. But, unfortunately, it is politics as usual — both within countries, and between countries. Let us note that makas dam could easily have been all that was necessary to get the Jews out of Egypt – but this was not Hashem’s only goal. His goal was for all mankind to recognize that Hashem is one G-d, and Yetzias Mitzrayim accomplished that, to a great extent. Is coronavirus His follow-up message, or just a reminder?




Heter Shopping

Reuven, who studies assiduously in a kollel, asked me the following shaylah:

“I recently inherited some money with which I repaid a private loan used to buy our home. Although I always give maaser (ten percent) of my earnings to tzedakah, I forgot this time, and subsequently asked Rav A what I should do, since I no longer have money for the maaser. He told me that I am obligated to pay this money to maaser and should consider it a debt that I must pay back gradually, even though this will take years. I then asked him whether I need to perform hataras nedarim (the procedure whereby one renounces vows) for my practice of giving maaser money, since in the interim I will be significantly behind on my usual maaser giving. He told me that he was uncertain about this latter question and that I should ask someone else.

“Subsequently, I approached the son of a prominent posek requesting that he ask his father whether I should perform hataras nedarim, telling him the whole story. He returned with the reply, ‘My father said that, in your circumstances, you are not obligated to give maaser kesafim from the inherited money.’

“Now, I am a bit confused and I have a new shaylah. I know that one may not ask the same shaylah from a second rav after receiving a ruling. However, I did not ask the prominent posek to rule on whether I must give maaser. May I rely on the answer I received from the second posek absolving me from paying maaser, since the second rav is a greater authority than the first? Does it matter that I was not asking the second rav the same shaylah I asked the first?”

REQUESTING A SECOND OPINION

Before proceeding with surgery or some other major medical procedure, people usually seek additional information and opinions. Similarly, why not ask a different rav his opinion? Possibly, the second rav may even influence the first rav to change his opinion!

In order to explain this matter, we must first examine why one may not re-ask a shaylah. This topic is often simply referred to as chacham she’horah, lit.,a wise man (or Torah scholar) who ruled.

The Gemara (Avodah Zarah 7a) states, “One who asked a shaylah from a Torah scholar and he prohibited, the questioner may not ask a different scholar hoping that he will permit.” This ban forbids not only asking the shaylah a second time, but also prohibits a different scholar from answering the shaylah, as the Gemara states elsewhere (Niddah 20b): “If a Torah scholar forbade something, a different one may not permit it.” Thus, we see that not only is it forbidden to go “heter shopping” after receiving a psak, but also that a rav may not assist someone to “heter shop.”

The Rishonim deliberate why, indeed, one may not re-ask a shaylah. Here are three approaches:

Approach #1: RESPECT FOR A TALMID CHACHAM

Some explain that seeking a second opinion implies that the first rav is incompetent; re-asking the shaylah is an affront to his honor (cited by Ran to Avodah Zarah).

Approach #2: THE RAV DETERMINES

The Rosh (ad loc.) explains that when a rav is asked a shaylah, his ruling makes the item either permitted or forbidden. According to this approach, the rav’s ruling determines the halachic status of the item in question, and there is no purpose in asking the shaylah again.

Approach #3: ACCEPTING THE PROHIBITION

A third approach explains that, when submitting a question to a rav, the questioner accepts the rav’s decision and considers the item either permitted or prohibited, according to the ruling. Therefore, if the rav rules the item forbidden, the questioner has accepted this decision as binding. Tosafos (Avodah Zarah 7a s.v. hanishal) views this as an example of “shavya anafshei chaticha de’issura – considering something as prohibited,”even when everyone else knows that it is not. I will clarify this principle with a different case.

A man believes that he is a kohen, although there is insufficient evidence for his assumption. Since most Jews are yisroelim and not kohanim, his basic status is a yisroel, and he has none of the rights of a kohen. Therefore, he may not duchen, redeem a bechor or receive the first aliyah to the Torah. However, since he considers himself a kohen, he must assume the stringencies of a kohen, such as not attending funerals or becoming tamei to a corpse in any other way, or marrying a woman prohibited to a kohen. Since he himself believes that he is a kohen, he is shavya anafshei chaticha de’issura – he must consider himself prohibited as if he is a kohen.

According to this approach, when I ask a shaylah, I am accepting the rav’s opinion as binding halacha. I cannot change this psak by asking a different rav, even if the second rav is more competent.

HOW DO THESE APPROACHES DIFFER?

According to the first approach quoted, one may not seek a second opinion, because attempting to circumvent the rav’s decision slights his honor. However, if one happens to become aware of a differing opinion without attempting to go “over the first rav’s head,” one might be permitted to follow the second opinion. This is because, even though asking a shaylah a second time shows lack of respect to the first rav,once one becomes aware that the matter is disputed, the status of the case changes to the general shaylah of what to do when there is a dispute among poskim. This general shaylah is beyond the scope of this article.

Thus, according to the first approach, Reuven might be free to ignore the halachic decision of the first rav. Unfortunately for Reuven, most Rishonim do not follow this approach.

Is there any halachic divergence, however, between the Rosh’s position that the rav’s decision determines the halacha (Approach #2), and that of Tosafos, that the questioner accepts the rav’s decision (Approach #3)? The usual way to understand their argument is that according to the Rosh, the decision creates the law, whereas according to Tosafos, it is a stringency that the questioner must observe but it does not become the law. Is there any practical difference between the two positions?

LENIENT RULING

Indeed, there is! According to Tosafos’ approach, the first rav’s ruling is binding only if he was stringent, but not if he ruled leniently. If the first rav ruled leniently, not only may one ask a second opinion, but also, if the second rav ruled stringently, one is bound to follow the strict opinion. According to the Rosh, the first rav’s ruling is binding in either case, since his decision creates the law, and one would not be obligated to follow the second rav’s opinion.

HOW DO WE RULE?

The poskim dispute whether we follow the opinion of Tosafos or that of the Rosh. The Rama (Yoreh Deah 242:31) and the Taz rule like the Rosh, whereas the Shach (ibid. 59) and the Gra rule like Tosafos.

WHAT IF THE RAV ERRED?

Although the Gemara states that someone who asked a shaylah may not ask a different scholar, hoping that he will be lenient, Tosafos (Avodah Zarah 7a) rules that if one feels that the first rav erred, he may ask a second rav. If the first rav’s ruling was clearly an error, his decision is overruled. This is because such a basic error is not considered a halachic ruling at all.

What type of error is overruled?

There are three possible reasons why two poskim might disagree:

A. Machlokes beshikul hadaas – a difference of opinion.

The most common case is where two poskim understand the subject differently, resulting in different rulings. This is not an error but a difference in outlook, and the first rav’s verdict cannot be overturned.

B. Ta’us beshikul hadaas – an error in judgment

Sometimes the original decision was because the first rav ruled like one side of an earlier dispute; however, accepted practice follows the conflicting view of that dispute. This is considered an error of judgment, ta’us beshikul hadaas, since it was based on judging which opinion to follow. The poskim dispute whether such an error can be overturned (see Rama, Yoreh Deah 242:31; Shach, ad loc., and Choshen Mishpat 25:14:17).

C. Ta’us bidvar mishna – an error in facts

There are instances where the ruling is clearly erroneous. This is when the rav was unaware of information that overturns his ruling, such as where the ruling conflicts with an undisputed statement in earlier poskim or is based on inaccurate factual information (see Mishnah, Bechoros 28b). It also includes cases where the rav subsequently discovered that contemporary halachic authorities rule differently from the way he did, and he would have accepted their position, had he known (see Sanhedrin 33a).

If, indeed, the first rav erred, his ruling is invalid. Because this is so, one may ask a second rav to investigate whether the first rav’s ruling is erroneous (Tosafos, Avodah Zarah 7a).

The Rama (Shu”t #28) discusses such a case. While salting a large pile of meat on Pesach, someone discovered a wheat kernel lying on one piece of meat. The question was whether all the pieces of meat are now chometzdik and must be thrown out, or whether only the piece that actually touched the kernel is prohibited. The rav who answered the shaylah ruled leniently, but a different rav disagreed vociferously. The question was submitted to the Rama for arbitration. What is the status of the meat?

In a lengthy discussion, the Rama demonstrates that one cannot prove that the first rav erred. Therefore, the Rama rules that the meat is permitted, since he contends, like the Rosh, that once the first rav ruled leniently, that is the halacha – unless the ruling was an error. According to the opinion of the Shach, who rules like Tosafos, if the second rav’s opinion is more likely accurate, all the meat is prohibited. This is because the first rav was lenient; if he had ruled stringently, both the Rosh and Tosafos would agree that the first ruling is binding.

(By the way, the second rav who contended that all the meat was forbidden may not eat it, because of shavya anafshei chaticha de’issura. It is beyond the scope of this article to discuss whether he may eat food cooked in the pots used to cook this meat.)

Thus, we can now answer Reuven’s original shaylah. Although he would like to follow the more lenient opinion of the second posek, once he asked the first rav, he is bound by this decision and must give maaser.

MAY THE RAV CHANGE HIS MIND?

We now understand that unless the original rav erred, one cannot follow the opinion of a different rav who disagrees. However, what happens if the rav who originally prohibited the item changes his mind and now feels differently about the issues? Can the rav change his mind from what he originally ruled and change his psak halacha in that case?

Although one might think that this is certainly permitted, if one considers the reasons mentioned above, it is by no means obvious. Once the rav declared the item prohibited, who says that even he can change his ruling? Indeed, many poskim contend that he cannot, unless his first ruling was an error (Shach, Yoreh Deah 242:58), although others rule that he may change his ruling (Ran, Avodah Zarah 7a, Rama, Yoreh Deah ad loc. and Aruch Hashulchan, Yoreh Deah 242:58-60). An authoritative responsum on this subject appears in Shu”t Panim Meiros (#2).

A RECURRING SHAYLAH

What happens if the shaylah recurs? If someone asked a shaylah from a rav and the rav ruled stringently, and now the questioner has the same shaylah again, is the questioner bound to follow the psak he received previously?

The Rama (Yoreh Deah 242:31) rules that the binding decision of a rav applies only to the shaylah just asked. However, if the same shaylah recurs, one may ask the shaylah to a different rav. Also, if the first rav changed his mind and someone subsequently asks him a similar shaylah, he may and should rule differently, reflecting his current opinion.

THE SAUSAGE FACTORY

I found a very interesting halachic discussion about this very point. In the United States of the 1930s and ’40s, kashrus supervision was very chaotic. It was not uncommon for a businessman to own both kosher and non-kosher food operations, and, unfortunately, this led to many scandals when unscrupulous individuals sold non-kosher food as kosher. The Agudas Harabbanim, then the pre-eminent rabbinic organization in North America, issued a ban on the practice of providing a hechsher to a business owned by someone who also owned a non-kosher business.

A new shaylah arose when large conglomerate corporations that owned non-kosher businesses purchased kosher abattoirs or sausage companies. Was the rav who had previously provided the hechsher to the kosher business now required to remove his hechsher, simply because the parent corporation also owned non-kosher businesses, or did the prohibition to give a hechsher apply only to a business whose management or active ownership included non-kosher operations?

The Agudas Harabbanim assembled a beis din to adjudicate the matter. While this beis din was deliberating, someone questioned whether this beis din could debate the subject, contending that the Agudas Harabbanim had previously prohibited this practice in an earlier ruling. Thus, claimed the naysayer, it was a case of chacham she’horah – the issue was already a closed matter and there was no room to reopen the case!

In a teshuvah penned on Tu Bishvat 5694, Rav Yosef Konwitz, who had previously been the rav of Tzfas and at the time wasa rav in New York, argued that this is a different shaylah, and that the earlier ruling had covered only the case at hand then (Shu”t Divrei Yosef #10). Although the reasons behind the previous ruling may indeed be brought to bear on this case, the newly created beis din has every right to rule on the new cases and to rule differently from the earlier case, if the dayanim disagree with the earlier psak.

We have now established the basic rules whether the psak one receives can be overturned. The basic rules are:

I. If the original psak was an error, as defined above, then the psak is not valid.

II. If it was not an error, then, according to most poskim, the original psak is valid and the rav himself cannot change his ruling on that case. Some poskim contend that the original rav may change his opinion on the original case.

III. The original psak does not affect subsequent cases, even if they affect the same person and he asks the same rav.

Most importantly, we learn from our discussion that once one receives a psak prohibiting something, one may not shop for a heter to permit it.




Corona-virus Takeaways – One Man’s Perspective

This morning, I rather suddenly and perhaps rashly decided
that I would put my thoughts on paper about the current world crisis. I take responsibility
for these as my own opinions, although I believe that they are solidly built on
Torah sources. Then again, I believe that everything I write falls under that
category, and not everyone always agrees.

My first observation:

None of us has ever experienced this type of pandemic
before. Indeed, the world has become much more populated and much more of a
global village in the last few years. There is no question that technology has
added hours to our days and years to our lives. Technology provides medical
care for the ill, at the same time that it indirectly caused the spread of this
pandemic to places unimaginable previously, and with unprecedented speed.

My second observation:

Most, if not all, of the worldwide crises that we have
experienced in recent decades have been caused by man. Although there have been
earthquakes, hurricanes, mine collapses, avalanches, tornadoes, and devastating
forest fires, these are all relatively local crises, where people and nations
distant from the catastrophe are not affected directly. Even the tsunami that
killed hundreds of thousands of people affected only those near the Indian
Ocean.

In contrast are man-made crises: Terrorism of all types has
become and remains a worldwide dilemma, and the 20th century took us
through two catastrophic world wars.

I do not want to enter scientific and political debate as to
whether the crisis of global warming is manmade or not; even assuming that it
is not manmade, it is not as acute a problem as the coronavirus is.

Although many may be to blame for how they have dealt with
this crisis, no one serious blames mankind for intentionally creating the
coronavirus. Without question, this is a direct communication to all of mankind
from Hashem. The entire world may perhaps not have had such a direct
communication since all the rivers and oceans split along with the Yam Suf.
And yet, few people seem to be attempting to learn any lessons from this. Now
and again, I read or hear of an individual Rav expressing his personal
takeaways from the crisis, but I have seen and heard no response from a world
leader regarding any type of ethical or moral response. Quite the contrary:
Politicians have been acting as politicians, rather than as the statesmen whose
true leadership we would like to see. I have seen no one act as the King of
Nineveh did upon hearing Yonah’s castigation – or, more accurately, Yonah’s
threat.

I want to focus on obvious lessons that Hashem is clearly
telling everyone in the world.

The basic instruction in order to limit the virus’s spread
is social distancing. No hugging, kissing, or even handshaking. Eliminate all
social gatherings. Maintain a social distance of several feet. Of what does
that remind you?

Around the world, people have been placed in social
quarantine for fourteen days. Again, this is reminiscent of the laws of metzora,
where the maximum time for someone who is a metzora musgar is two weeks.
(Although the halacha is that for a metzora, “two weeks” means
thirteen days, the association is there. Furthermore, the vast world of Bible
readers who do not know about Chazal certainly associate this with two
full weeks.) Aside from the prohibition of loshon hora, with which
metzora
is associated, Chazal have told us that there are many other
social malpractices for which the punishment of tzaraas is a reminder
and admonishment (see Arachin 16a; Midrash Rabbah on the verses
of tzaraas).

My third observation

For whatever reason, I had tremendous difficulty remembering
the name COVID-19, the official name of this virus. However, two fairly simple
memory devices have helped me: The word kavod, כבוד, (COVID) – and the gematriya of the
word cheit,sin, including its kolel (a term for gematriya
enthusiasts) equals 19.

My fourth observation:

Do we need a crisis of this proportion in order to interact
with our children on a daily basis?

My fifth observation:

All of life is so unpredictable these days (I guess that’s
another lesson) that I’ll wait to see what tomorrow brings, and then we’ll plan.
I say this in a country in which until this point, thank G-d, there is some
degree of control regarding the spread of the contagious malady; in many
countries, the medical facilities have completely collapsed or are in serious
danger of doing so. A physician in New York City dealing with the crisis
reported to me earlier today that medical supplies are critically low and
running out quickly – in the country that many, if not most, people consider
the epitome of world civilization and development.

To quote some of today’s news items:

“Hospitals
across the U.S. are running out of the masks, gowns and other equipment they
need to protect staff against the novel coronavirus as they struggle to take
care of patients, say hospital officials, doctors and others in the industry…
The Pentagon stepped into the breach by offering on Tuesday to supply up to
five million respirator masks, as health-care officials and workers say the
situation is dire. Administrators at the headquarters of the Providence health
system are in conference rooms assembling makeshift face shields from vinyl,
elastic and two-sided tape because supplies are drying up. Nurses from Brigham
and Women’s Hospital in Boston, preparing for a potential shortage, have
pleaded with friends on Facebook for any goggles and other gear they might have
lying around. ‘I’m reusing my mask from yesterday,’ said Calvin Sun, an
emergency-room doctor in New York City. ‘We really have no choice.’”

Perhaps we should have more of a day-to-day relationship
with Hashem. As the Gemara states, the manna arrived daily for the Jews
in the Desert, and then there was nothing to eat until the next day. When we
have no idea what tomorrow will bring, our prayers to Hashem may take on
greater seriousness.

My sixth observation – Hashem’s chesed #1

As contagious as coronavirus is, for the majority of people
afflicted by it, its symptoms are generally no more serious than typical
influenza, which strikes the world annually. If the virus spread this way were
as deadly as the bubonic plague, AIDS, or various other maladies that have
affected mankind, the death rate would be in geometric proportion to what it
is. Assuming that this is a Divine message, wouldn’t we prefer this message to
some of the alternatives?

My seventh observation – Hashem’s chesed #2

Assuming that Hashem needed to warn mankind of something,
there is a lot of chesed involved in when and how he warned us. For
example, it became a crisis after the tremendous kiddush Hashem of the
worldwide Siyumei Hashas, all across the globe. Imagine if all of these
siyumim
had been forced to cancel! All that incredible kiddush Hashem would
not have happened.

My eighth observation: The Economy

This crisis without question is destroying economies. What
we do not yet know is whether it will set off a worldwide recession, or be a
temporary blip that passes soon. Perhaps the answer to this question depends on
how we react and respond to it?

My ninth observation: The Elderly

Coronavirus has proven much more lethal among the elderly, in
which the death rate, I was told, is close to 20% of those infected. Some have
stated that the slow response in some countries to the pandemic is related to
their attitude toward the elderly and infirm, and perhaps toward the sanctity
of life in general.

My tenth observation – Pesach hotels

I write this observation with trepidation, since there is an
implied criticism of many of my very close friends, and I certainly do not
consider myself worthy of giving musar to them. Among the many
businesses that this crisis has decimated is the vast business of Pesach
hotels. In Israel, a newspaper report anticipates a matzah shortage caused by
the 13% of Israeli residents who are not going to hotels for Pesach this year
because of the crisis. Apparently, because they will be home they will need to
acquire matzos, which will cause a shortage.

I was raised in what today would probably be called a modern
orthodox family – and Pesach was spent with family. We had a well-established
practice that we did not eat in anyone else’s home on Pesach, unless we were
spending Pesach in that home. Do we want our children to view Pesach as a
family experience, or a social one?

I have other observations on the topic, but, as the old
adage runs, not everything that you think should you say, not everything you
say should you write, and not everything you write should you publish.

With my best wishes that:

  1. All of G-d’s children who are ill should recover.
  2. This crisis should pass quickly, and the economic repercussions should be mild.
  3. All of mankind should learn the lessons that Hashem wants to teach us.



Writing a Sefer Torah

Question #1: Why not?

“Why doesn’t everyone write his own Sefer Torah?”

Question #2: Partners in Torah

“May two people partner
together to fulfill the mitzvah of writing a Sefer Torah?”

Question #3: Traditional
Chapters

“Why did some gedolei
Yisroel
not use perakim and pesukim numbers to identify pesukim,
whereas others did?”

Introduction:

The last mitzvah mentioned in the Torah, which we are taught
in parshas Vayeileich, is that each individual is required to write a Sefer
Torah
. The words of the Torah from which we derive this mitzvah are, Ve’atah
kisvu lachem es hashirah hazos velamdah es Bnei Yisroel simah befihem lema’an
tihyeh li hashirah hazos le’eid bivnei Yisroel,
“And now, write for
yourselves this song, and teach it to the Children of Israel, place it in their
mouths, so that this song shall be a testimony among the Children of Israel” (Devorim
31:19). We should note that two of the targumim, the early Aramaic
translations of the Torah, authored by Onkelus and by Yonasan ben Uziel, both
translate the word shirah not as “song,” but as
“praise.” On the other hand, both Rashi and the Rambam (Hilchos
Sefer Torah
7:1) explain the posuk a bit differently from the Targum,
translating shirah as “song” and understanding it to refer to
the song of parshas Ha’azinu. The Rambam explains the posuk
to mean that one should “write the Torah, which contains the song of Ha’azinu.”

The Baal Haturim on the posuk
notes two gematriyos, one that the words velamdah es Bnei Yisroel
equal zeh Torah shebiksav,“this is the Written Torah,” and the
words simah befihem equal zeh Talmud, “this is the Oral Torah.”

Nothing missing

Fulfilling the mitzvah of writing a Sefer Torah
requires that one write an entire Sefer Torah — even if one letter is
missing, one has not fulfilled the mitzvah (Rambam). A Sefer Torah
must be written in black ink on parchment. Parchment is made from animal hide,
and the mitzvos of Sifrei Torah, tefillin and mezuzos
require that the parchment is produced from the hide of a kosher species. There
is no halachic requirement to make it from an animal that was
slaughtered in accordance with Jewish law, and, as a matter of fact, the hide
is usually not from animals that were slaughtered according to halacha.

Lishmah

The tanning of the hide into parchment must be done lishmah,
for the purpose of using it for a Sefer Torah. At the first step of the
tanning, the Jew who processes the hide into parchment should state that he is
processing it lishmah. Whether or not a non-Jew can perform some of the
tanning under a Jew’s supervision, or whether doing this undermines the
requirement that the processing must be lishmah, is a lengthy discussion
among early halachic authorities (Rosh, Hilchos Sefer Torah #3).

The writing of the Sefer Torah must also be performed
lishmah. Before he begins writing, the sofer should state aloud,
“I am writing this Sefer Torah for the sanctity of Moshe Rabbeinu’s
Torah” (Rosh, Hilchos Sefer Torah #4). There is an additional
requirement that, when writing the names of Hashem, the scribe write
them for the sake of creating holy names.

Dipping the quill

There is an interesting halacha that, when writing
the name of Hashem, the sofer should not dip his quill into the
ink immediately before writing His name. The reason is that the first letter
written after a quill is dipped into ink often smears, and one does not want
this to occur while one is writing Hashem‘s name.

Scoring

Prior to writing the words of the Torah on the specially-made
parchment, one must score the parchment in a way that leaves no written marks.
This process, called sirtut, is accomplished by running an awl or other
sharp instrument across the parchmentto mark the lines on which one
plans to write (Rambam, Rosh, Tur; cf. Rabbeinu Tam, who disagrees).
This law is a halacha leMoshe miSinai, meaning that it is a mesorah,
a tradition, that we were taught by Moshe Rabbeinu, who learned it
directly from Hashem when he learned the Torah on Har Sinai.

Punctuating Torah

We have a mesorah how the words of the Torah are
vowelized and punctuated; the markings indicating this appear in every standard
chumash. However, in a Sefer Torah itself, halacha dictates
that no periods, other punctuation marks, reading aids or music notes appear.

Chapters

Similarly, the division of the Torah into chapters,
perakim
, is originally from non-Jewish sources and is never used in
handwritten Sifrei Torah. Indeed, this is true not only of the Torah,
but also in most of the rest of Tanach. The chapter divisions that are
commonly used for most of Tanach do not originate in Jewish sources. The
two books that are exceptions, where the chapters are according to Jewish
sources, are Tehillim and Eicha. In all other kisvei hakodesh,
the division into pesukim is part of our tradition, but not the division
into chapters. Consequently, the numbering of the pesukim, which is
based on the non-Jewish chapter division, is also not our tradition.

At this point, we can address one of our opening questions:
“Why did some gedolei Yisroel not use perakim and pesukim
numbers to identify pesukim, whereas others did?”

Many of our gedolim, for example, the Chofetz
Chayim
and the Ohr Somayach, refrained from referring to pesukim
according to chapter and posuk. Instead, they would refer to them by the
parsha of the week and its location within the parsha. Clearly,
they did not want to use a system that was non-Jewish in origin. Those who do
use the chapter and posuk system felt, presumably, that since there is no
prohibition to use this system, which makes it much easier for the student to
locate the posuk being quoted or studied, one may use it to facilitate
the student’s learning.

Pesuchos and sesumos

The Torah itself is divided into sections using a different
system, which are called pesuchos and sesumos. These are
indicated by the letter “pei” or “samach” in our standard chumashim.

There is a dispute among rishonim exactly how one is
to make the pesuchos and sesumos. Both approaches agree that when
the pesucha is in the middle or beginning of a line, it is indicated by
leaving the rest of the line blank, and then continuing the next passage on the
next line. When a sesumah is in the middle or beginning of a line, it is
indicated by leaving blank an area at least nine spaces long and then
continuing the next passage on the same line. However, when a pesucha or
sesumah is at the end or towards the end of a line, the poskim
dispute how it must be written. In order to avoid writing a Sefer Torah
that is kosher only according to some authorities, accepted practice is to
avoid having a pesucha or sesumah at the end or towards the end
of a line. We will see shortly how we make sure that this happens.

Write the letters carefully

The sofer must be careful to write the letters
clearly and to follow the halachic rules governing how the letters are
to be written. He must also make sure that each letter is completely surrounded
by parchment. This last requirement, called mukaf gevil, means that each
letter must be written in a way that it does not connect to another letter, nor
may it run to the top or bottom of the piece of parchment on which it is
written.

One of the rules for writing a Sefer Torah is that
the scribe must have another Sefer Torah or a tikun in front of him
that has all the words of the Torah correctly spelled. In practice, sofrim
use a tikun not only to help them spell the words correctly, but to
mimic their exact placement on the line and column. Among other reasons, this
is to avoid having the sesumos and pesuchos occur towards or at
the ends of lines, which creates a halachic problem, as mentioned above.

Size of letters

A Sefer Torah may be written with very small letters
or with very large ones, but the relative size of the letters within the same Sefer
Torah
must be consistent, except for those few letters that have a
tradition to be written larger or smaller.

The scribe who writes a Sefer Torah must be a
yarei
shamayim and knowledgeable in all the laws of writing a Sefer
Torah
. There are many more details of these laws, far more than we can
discuss in this article. Suffice it to say that numerous works are devoted
entirely to the topic of the correct writing of letters in a Sefer Torah.

Someone who does not believe in the G-d-given nature of the
Torah at Har Sinai is ineligible to be a scribe for Sifrei Torah, tefillin
and mezuzos. Such a person may write a kesubah, which is halachically
a contract and not holy writing.

How does it dry?

After writing a section of parchment that needs to dry, it is
prohibited to suspend it upside down to prevent dust from settling on it.
Notwithstanding that this is a simple method for making sure that the parchment
remains clean while drying, it is a disrespectful way to treat the words of Hashem
(Tur, Yoreh Deah Chapter 277).

Stitching

The pieces of parchment are stitched together with a
specially-made thread processed from sinews of kosher animals. (As before, the
animals must be of kosher species, but there is no requirement that they be
kosher-slaughtered.) It should not be stitched all the way to the top or all
the way to the bottom (Tur, Yoreh Deah Chapter 278).

Requirement

Until now, we have been discussing the halachos
germane to writing a Sefer Torah, all of which are essential to fulfill
this mitzvah. At this point, we will discuss some of the other laws germane to
fulfilling the mitzvah.

The Gemara writes that a person who purchased a Sefer
Torah
that was not kosher, even if only because of one letter, and then
repaired the error, it is considered as if he wrote an entire Sefer Torah
(Menachos 30a). This is because one is not permitted to own an incorrect
Sefer Torah.

Why would someone get credit for writing the entire Sefer
Torah
when all he did was write one letter? The answer is that a Sefer
Torah
containing mistakes must be repaired or checked within 30 days.
Otherwise, one should place it in genizah. Thus, the individual who
corrected the one letter took an incomplete Sefer Torah that would have
required genizah and made it into a source that can be used for study
and reading the Torah.

Selling a Sefer Torah

The Gemara teaches that one may not sell a Sefer
Torah,
even if he does not have food to put on his table (Megillah
27a). There are two situations in which one is permitted to sell a sefer Torah:
(1) one needs funds to study Torah, or (2) one needs funds to get married (ad
locum). The Rema (Yoreh Deah 270:1) adds a third case, permitting
the sale of a Sefer Torah in order to have funds with which to fulfill
the mitzvah of pidyon shevuyim, redeeming captives.

One may not sell a Sefer Torah, even if he owns
several already, and even if he wants to sell an older one in order to have the
funds with which to purchase a newer one (Tur, Yoreh Deah, Chapter 270).

Purchasing a Sefer Torah

Does one fulfill the mitzvah if one purchases a Sefer
Torah
? Based on his understanding of the Gemara (Menachos 30a),
the Rema rules that one fulfills the mitzvah only if the Sefer Torah
had mistakes and he purchased it and hired a sofer to repair it (or
repaired it himself); but, if the Sefer Torah was in good order, he has
not fulfilled the mitzvah of writing a Sefer Torah by purchasing it.

Indeed, there is a dispute among the rishonim
concerning this halacha: Rashi (Menachos 30a) and the Sefer
Hachinuch
explain that one fulfills the mitzvah in a non-optimal way by
purchasing a Sefer Torah, whereas the Rambam, Smag, Shulchan
Aruch
and Rema all rule that one is not yotzei by purchase,
because the Torah states that the mitzvah is to “write.”

The Minchas Chinuch notes that if he hired a sofer
to write a Sefer Torah and then failed to pay him, not only has he
violated the Torah prohibition of failing to pay a hiree, he has also not
fulfilled the mitzvah of writing a Sefer Torah.

Gave it away

According to the Toras Chayim (Sanhedrin 21,
quoted by Pischei Teshuvah, Yoreh Deah 270:3 and by Minchas
Chinuch
), someone who sold, lost or donated his Sefer Torah no
longer fulfills the mitzvah and he must write another one. The Sefer
Hachinuch
implies that he agrees with this approach, since he writes that
the mitzvah is that each individual should own a Sefer Torah. However,
there are prominent authorities who dispute this conclusion, ruling that once
he fulfilled the mitzvah by writing a Sefer Torah, selling it or giving
it away does not invalidate his fulfilling of the mitzvah (see Pischei
Teshuvah
).

Partners in Torah

At this point, let us examine another of our opening
questions: “May two people partner together to fulfill the mitzvah of
writing a Sefer Torah?”

The Pischei Teshuvah, an anthologized commentary on
the Shulchan Aruch, quotes a few poskim who discuss this
question. Most are inclined to rule that one has not fulfilled the mitzvah of
writing a Sefer Torah this way.

The Sefer Hachinuch defines the mitzvah as being that
each person must own a Sefer Torah, which sounds as if he also holds
that one does not fulfill the mitzvah by partnering with someone else to hire a
sofer to write it.

The Sefer Hachinuch also writes that the optimal hiddur
is to write the Torah himself, with his own hand. If someone is unable to
write it himself, he should hire someone to write it for him.

Purchasing seforim

Does one fulfill the mitzvah of writing a Sefer Torah
by purchasing seforim used to study Torah? The Rosh writes: Today,
when people write a Sefer Torah and it is then left in shul to be
used for the mitzvah of kerias haTorah, it is a positive mitzvah on
every Jewish male who can afford it to write Chumashim, Mishnayos,
Gemaras and their commentaries, in order that he and his children be
able to study them. This is because the mitzvah of the Torah specifies “in
order to learn from them,” and with the Gemara and commentaries one
understands the mitzvos and their details well (Hilchos Sefer Torah #1).

The Beis Yosef (Yoreh Deah 270) explains that
the Rosh was not coming to rule that there is no longer a mitzvah to
write a Sefer Torah, but that there is also a mitzvah to write
other seforim, and that this acquisition is a bigger mitzvah than
writing a Sefer Torah. In the Shulchan Aruch, he reflected this
opinion. However, there are prominent acharonim who disagree with the Shulchan
Aruch
and understand that the Rosh’s conclusion is that there is no
mitzvah today to write a Sefer Torah (Perisha; Shach). This
understanding of the Rosh explains that the mitzvah of the Torah is to
produce materials used to study Torah. Since a Sefer Torah is not used
today for this purpose, writing one does not fulfill the 613th mitzvah of the
Torah.

According to this approach, there
is an easy answer to our opening question: “Why doesn’t everyone write his
own Sefer Torah?”

There are other reasons to explain
why people do not write their own Sefer Torah. Another approach is that
one is not required to spend more than a fifth of what he owns to fulfill a
mitzvah (Minchas Chinuch). Thus, many poor and middle-class people are
exempt from the mitzvah. (See the Sha’agas Aryeh, Shu”t Chasam Sofer,
Yoreh Deah
#52 and #54 and the Minchas Chinuch for yet other reasons
to exempt people today from the mitzvah of writing a Sefer Torah.)

Conclusion

The goal of the Torah’s mitzvah to
write a Sefer Torah is so that, wherever Jews live, there should be
readily available seforim to study Torah. However, if this was the
Torah’s only concern, it would have required each individual to purchase seforim
according to his ability. Instead, the Torah required each individual to write
a Sefer Torah, thus implying two additional ideas. (1) The Torah wanted
each individual to be involved in the providing of Torah learning material,
regardless of his personal financial situation. (2) The Torah wanted each
individual to be involved, himself, in the writing of Torah materials and their
procurement, and not to deputize this mitzvah to others, even when they are
more skillful.

The Torah is referred to as a Tree
of Life.  B’nei Yisroel are depicted as an agricultural
people.  As the Torah is, indeed, a source — the Source — of life, it is
certainly appropriate that we care for its proper “planting” and
flourishing, as outlined in halacha.




The Longest Year

Since this is a leap year, in which we add an extra month for Adar, this year has 385 days – making it the longest year that our current Jewish calendar can have. Therefore, I am presenting:

The Longest Year

“Thirty days hath September / April, June and November.” If we were to adapt this poem to, l’havdil, our current, standardized Jewish calendar, we would say that thirty days hath Tishrei, Shvat, Nissan, Sivan, Av, and sometimes Cheshvan1 and Kislev. But the idea of having a standardized Jewish calendar seems to run counter to several mishnayos in Rosh HaShanah. In those mishnayos, we see that whether a specific month has 29 days or 30 days depends on whether witnesses saw the new moon and testified in beis din early enough to declare the 30th day Rosh Chodesh (that is, the first day of the next month). In addition, the Gemara2 states that at times Elul could be 30 days long — which cannot happen in our calendar.

How did our empirical calendar become so rigid and predictable? The Torah (Shemos 12:2) commands the main beis din of the Jewish people (also known as the Sanhedrin), or a beis din specially appointed by them, to declare Rosh Chodesh upon accepting the testimony of witnesses who observed the new moon.3 The purpose of having eyewitnesses was not to notify the beis din that the moon had appeared; the beis din had extensive knowledge of astronomy and could predict exactly when and where the new moon would appear and what size and shape it would be.4 The Torah obligated the beis din to wait for witnesses, however, and they could only rule on whether the 30th day would be the last day of the old month or would become the first day of a new month, based on testimony. If no witnesses to the new moon arrived on the 30th day, then the 31st day became Rosh Chodesh, regardless of the astronomic calculations (Mishnah Rosh HaShanah 24a). At that point in Jewish history, any month could be either 29 or 30 days.

The Torah also commands us that Pesach must always fall during the spring (Devarim 16:1). This seemingly innocuous mitzvah actually requires considerable manipulation of the calendar, since months, derived from the word moon, are determined by the length of time from one new moon to the next, which is a bit more than 29½ days. A lunar year is, or more accurately, twelve lunar months are, almost exactly 354 days. The seasons of the year, on the other hand, are calculated according to the solar year, because seasons change based on where the sun’s most direct rays strike the earth. This varies daily, as the most direct rays move from the north Tropic of Cancer to the south Tropic of Capricorn and back again. A solar year is a bit less than 365¼ days, and is based on the length of time it takes the earth to rotate around the sun. Since Pesach must always take place during the spring, the calendar cannot be twelve lunar months every year, because over time, the eleven-day discrepancy between the lunar and solar years would cause Pesach to wander through the solar year and occur in all seasons.5

The Two “Other” Calendars

There are four calendars commonly in use in the world today, two of which make no attempt to resolve the discrepancy between solar and lunar years. The most common secular calendar (the Gregorian or Western calendar) is based solely on the sun. Although the year is nominally broken into twelve months, the use of the word “months” here is a significant departure from its original meaning. In the Gregorian calendar, months have no relationship to the cycles of the moon. Most secular months have 31 days, while the lunar cycle is only about 29½ days, and even secular months that have 30 days do not relate to any phase or change in the moon. Similarly, the length of February as a month of either 28 or 29 days has nothing to do with the moon. Thus, although the word month should correspond to the moon, the Gregorian calendar is purely a solar one, with the borrowed term, “month,” given a meaning detached from its origin.

Another calendar that is seeing increased use today is the Muslim one, which is purely a lunar calendar of twelve lunar months, some 29 days and some 30. In truth, a pure lunar calendar has no real “year,” since a year is based on the relative locations of the sun and the Earth and the resultant seasons, while a lunar “year” of twelve lunar months completely ignores seasons. The word “year” is used in the Muslim sense only as a basis for counting longer periods of time, but has no relationship to the sun. In fact, the Muslim “year” is only 354 or 355 days long — almost eleven days shorter than a solar year. Therefore, a Muslim who tells you that he is 65 years old is really closer to 63 according to a solar year count. He has counted 65 years, each of which is at least ten days shorter than a real (solar) year. (I trust that Guinness takes these factors into account when computing world records for longevity and the like.)

The Muslim year “wanders” its way through the seasons, taking 33 years until a specific month returns to the exact same point in the solar year in the previous cycle. In the interim, that month has visited each of the other seasons for several consecutive years.

13 month years

There are two commonly used calendars whose months are based on the moon, and years are based on the sun. The traditional eastern Asian calendar, usually referred to as the “Chinese Calendar” and the Jewish calendar, both accommodate this by having some years that are thirteen months and others that are twelve. The methods used by these two calendars to decide which month is doubled and when are quite different. Since our articles are on halacha, I will not discuss the details on how the Chinese calendar decides which month to double and when to do so.

The Jewish Calendar

As we have seen, we are commanded to create a calendar that uses the lunar cycle to define the months, but also to keep our months in sync with the seasons, which are dependent on the sun, in order to determine the dates of the Yamim Tovim. The only way to do so is to occasionally add a month, thereby creating a thirteen-month year, to offset the almost eleven-day difference between twelve lunar months and a solar year. The result of this calendar is that although each date does not fall exactly on the same “solar date” every year, it falls within a close range relative to the solar year. Who determined which years have thirteen months?

Under the original system, the main beis din appointed a smaller special beis din to determine whether the year should have an extra month. This special beis din took into consideration:

1) Astronomical data, such as when Pesach will fall out relative to the vernal equinox (the spring day on which day and night are closest to being equal in length).

2) Agricultural data, such as: How ripe is the barley? How large are the newborn lambs and pigeons?

3) Weather: Is the rainy season drawing to a close? Is there a famine?

4) Convenience, or more specifically, the halachic inconvenience of creating a leap year. The shmittah year and the year following were never made into leap years, and the year before shmittah usually was.

5) Infrastructure. For example, the condition of the highways and bridges.

All of these points influenced whether the thirteenth month, the additional Adar, would be added.6 When this system was in place — during a period without interruption from the time of Moshe and Yehoshua until about 300 years after the destruction of the Beis HaMikdash — the main beis din sent written messages notifying outlying communities of the decision to create a leap year, and the reasons for their decision.7

Creation of the “Permanent” Calendar

During the later era of the Talmud, Roman persecution made it impossible to continue declaring Rosh Chodesh based on eyewitness testimony. Thus, Hillel HaNasi (not to be confused with his more illustrious ancestor, the Tanna Hillel, also sometimes called Hillel Hazakein, who lived several hundred years earlier) instituted a calendar based purely on calculation, without human observation of the new moon. Rambam explains that the mitzvah of the Torah is that if it becomes impossible to declare Rosh Chodesh and leap years on the basis of observation, then the beis din should create a permanent calendar.8 Hillel HaNasi’s calendar kept the same basic structure of 29- and 30-day months and twelve- and thirteen-month years, but it was based purely on calculation and not on the variables mentioned above.

When Hillel HaNasi created the new calendar, he incorporated in its calculations several innovations. The two major changes in this new calendar are:

1) A Leap of Fate

Leap years now follow a regular pattern of seven leap years, called me’ubaros, and twelve non-leap years, called peshutos (ordinary), in a nineteen-year cycle. The third, sixth, eighth, eleventh, fourteenth, seventeenth, and nineteenth years of the cycle are always leap years, and the rest are ordinary years. This year, 5779, is the third year of the cycle and thus is a leap year.

2) The Haves vs. the Have-Nots

The length of most months is now fixed. Tishrei, Shvat, Adar Rishon (which exists only in a leap year), Nissan, Sivan, and Av will always have 30 days; Teves, regular Adar (in a common, nonleap year), Adar Sheini (in a leap year), Iyar, Tammuz, and Elul are always 29 days long. The months of Cheshvan and Kislev are the only months that can vary — sometimes they are 29 days and sometimes they are 30 days.9 A year in which both Cheshvan and Kislev have only 29 days is called chaseirah, lacking. If Cheshvan has 29 days and Kislev has 30, the year is considered kesidrah, expected or regular. If both Cheshvan and Kislev have 30 days, the year is called sheleimah, full.10

Both ordinary and leap years can be either chaseiros, kesidran, or sheleimos. Thus, in the new calendar, all ordinary years are either 353 days (if both Cheshvan and Kislev have 29 days), 354 days (if Cheshvan has 29 days and Kislev has 30), or 355 days (if both Cheshvan and Kislev have 30 days). All leap years are either 383 days (if both Cheshvan and Kislev have 29 days); 384 days (if Cheshvan has 29 days and Kislev has 30), or 385 days (if both Cheshvan and Kislev have 30 days). Since Adar Rishon always has 30 days, the addition of an extra month in a leap year always adds exactly thirty days.

(Because the nineteen-year cycle synchronizes the lunar calendar with the solar year, the Hebrew and English dates of births, anniversaries, and other occasions usually coincide on the nineteenth anniversary of the event. If yours is off by a day or two, do not fret. Your recordkeeping is accurate, but the cycle of nineteen years relates only to whether it is a leap year, not to whether the years are of the exact same length. The lengths of Cheshvan and Kislev are determined by other factors, plus the fact that February 29 does not occur every secular year will affect whether your 19th, 38th, 57th, 76th, or 95th Hebrew and secular birthday or anniversary exactly coincide, or whether they are slightly off.)

Revealing Top Secret Information

In order for the new calendar to be established properly, a very carefullyguarded secret had to be revealed. Chazal had always kept secret how one can predict when the new moon is destined to appear, a calculation called the sod ha’ibur. This information had always been kept secret in order to prevent false witnesses from coming forth and testifying that they saw the moon at a time when they knew it could be seen. With the new calendar coming into use, this was no longer a concern. Moreover, people had to know the secret in order to calculate the calendar correctly. The sod ha’ibur is that each new moon appears 29 days, 12 hours, and 793 chalakim or 793/1080 of an hour after the previous new moon.11

Once one knows when the new moon, called the molad, occurred on one Rosh HaShanah, he could add the sod ha’ibur figure either twelve or thirteen times (depending on the number of months that year) and determine the time of the molad in the next year, which is the most important factor in determining the date of the next Rosh HaShanah.

Another factor had also been guarded as a secret: that Rosh HaShanah sometimes takes place not on the day of the molad, but the next available day (see below). In the old system, this happened when the molad fell on the afternoon of Rosh HaShanah and the moon would not be visible in Eretz Yisrael until the next day. When Rosh HaShanah was determined by the observation of witnesses, this information was important not only in determining when Rosh HaShanah falls, but also when interrogating potential witnesses testifying to the appearance of the new moon. Although the new calendar is no longer dependent on witnesses seeing the moon, and so we could conceivably set Rosh HaShanah even in a year when the molad falls during the afternoon, we nevertheless postpone Rosh HaShanah to the following day. Thus, creating the calendar in a way that it could be used required revealing these two secrets, so that a person could determine which day should be Rosh HaShanah in the coming year.

Additional Innovations

Did you ever notice that Yom Kippur never falls on Friday or Sunday? If it did, we would have to observe two consecutive days, both of which have the stringency of Shabbos. Even today we can appreciate the difficulty that this poses, although it was even greater in the era before the discovery of the principles of refrigeration.

When the calendar was based on observation, Yom Kippur did sometimes fall on either Friday or Sunday.12 However, Hillel HaNasi’s new calendar included some innovations that were not part of the earlier calendar. The new calendar does not allow Yom Kippur to fall on either a Sunday or a Friday, thus avoiding the difficulty of having two Shabbos-like days fall consecutively. It also does not allow Hoshana Rabbah to fall on Shabbos, which would cause the cancellation of the hoshanos ceremony.

As long as the calendar was determined on the basis of eyewitness testimony, the halachah favored having Rosh Chodesh fall on its most correct day, over the concerns of having two Shabbos-like days fall consecutively, or canceling the hoshanah ceremony on Hoshanah Rabbah.13 But after eyewitness testimony could no longer be used, and we were going to implement a permanent calendar that fulfilled the mitzvah in a less-preferred way anyway, the halachah then went the other way: it favored keeping Yom Kippur from falling on Friday or Sunday, and keeping Hoshanah Rabbah from falling on Shabbos.

In order to accommodate these innovations, Rosh HaShanah could now fall only on Monday, Tuesday, Thursday, or Shabbos, since if it falls on Sunday, Hoshana Rabbah falls on Shabbos; if Rosh HaShanah falls on Wednesday, Yom Kippur falls on Friday; and if Rosh HaShanah falls on Friday, Yom Kippur falls on Sunday. This would mean that when Rosh HaShanah in the coming year would naturally fall on Sunday, Wednesday, or Friday, an extra day is added to the calendar to make sure that Rosh HaShanah falls on Monday, Thursday, or Shabbos instead.14 This concept of ensuring that Rosh HaShanah not fall on Sunday, Wednesday, or Friday is called

ראש לא אד”ו , lo adu Rosh, meaning that the beginning of the year, Rosh HaShanah, does not fall on א, the first day of the week, Sunday; ד, Wednesday; or ו, Friday. It is predominantly for this reason that there was a need to have Cheshvan and Kislev sometimes 29 days and sometimes 30, in order to make the exact length of the years flexible.

Although adding one day to the year so that Rosh HaShanah will not fall on a Sunday, Wednesday, or Friday seems simple, at times the calculation needs to take additional factors into consideration, as we will see shortly. Since Hillel HaNasi’s calendar did not allow a common year to be longer than 355 days and a leap year to be shorter than 383 days, the only way to avoid this happening is by planning in advance what will happen in the future years, and adjusting the calendar appropriately.

In order to accommodate these various calendar requirements, Hillel HaNasi established four rules, called dechiyos, which, together with the sod ha’ibur calculation and the nineteen-year rotation, form the basis of determining our calendar.15 We’ll use a sample two years calculation of the molad for Rosh HaShanah to explain a dechiyah. A few years ago, the molad calculation for Rosh HaShanah fell on Wednesday evening, and Rosh HaShanah therefore was on Thursday, which is what we would expect. But the following year’s molad fell on Tuesday, less than two hours before the end of the day. Although the molad was on Tuesday, it was too late in the day for this molad to be visible in Eretz Yisrael, and therefore Rosh HaShanah could not occur before Wednesday. However, since Rosh HaShanah cannot fall on a Wednesday, because of the rule of lo adu Rosh, it had to be pushed off to Thursday, or two days after the molad. For this reason, that year had to have an extra day, making it not only a leap year, but also a sheleimah, when both Cheshvan and Kislev have thirty days. This created a year of 385 days, the longest a year can be.16

As mentioned above, although the leap years follow a fixed nineteen-year cycle, whether the year is chaseirah, kesidrah, or sheleimah is determined by the other factors we have noted, and therefore does not follow the nineteen-year pattern. Rather, one first calculates when Rosh HaShanah should fall out based on the sod ha’ibur, then checks the rules of the dechiyos to see what adjustments need to be made, and then determines on which day Rosh HaShanah should fall. As a result, whether the year in question needs to be chaseirah, kesidrah, or sheleimah requires calculating not only that year’s schedule, but also the coming year’s calendar requirements. A result of all these calculations is that although there might seem to be many potential variables used in calculating the years (the day of the week of Rosh HaShanah, whether it is a leap year or ordinary year, and whether the year is chaseirah, kesidrah, or sheleimah), for reasons beyond the scope of this article, there are only seven possible prototype years for an ordinary year, and seven for a leap year.

Each of these fourteen prototype “years” is identified by a three-letter acronym, in which the first letter identifies the day of the week of the first day of Rosh HaShanah; the second letter denotes whether the year is chaseirah, kesidrah, or sheleimah; and the third letter identifies the day of the week of the first day of Pesach. No letter is used to denote whether the year is an ordinary year or a leap year, because this can be calculated by knowing how many days of the week there are between Pesach and Rosh HaShanah. In a common ordinary year that is kesidrah, Pesach falls two days later in the week than Rosh HaShanah. In a leap year, it falls four days later, the two additional days being the extra two days that Adar Rishon, which is thirty days long, adds to the count of the days of the week. Of course, these calculations must be adjusted one day in either direction if the year is chaseirah or sheleimah. Thus, the acronym for this year, 5779, is bais shin zayin בשז – Rosh HaShanah was on a Monday, the year is a sheleimah (both Cheshvan and Kislev had 30 days), and the first day of Pesach is on Shabbos.

 

(Endnotes)

1 Although the correct name of the month is Marcheshvan, we will use the colloquial name, Cheshvan.

2 Rosh HaShanah 19b, 20a.

3 Rambam, Hilchos Kiddush HaChodesh 1:1, 7; 5:1.

4 Ibid. 2:4; Ritva on the Mishnah Rosh HaShanah 18a.

5 Rambam, ibid. 4:1.

6 Sanhedrin 11a–12a.

7 Sanhedrin 11b; Rambam, Hilchos Kiddush HaChodesh 4:17.

8 Ibid. 5:2.

9 Ibid. 8:5.

10 Since Kislev is sometimes 29 days and sometimes 30, the last day of Chanukah can either be on the second or the third day of Teves.

11 The term chelek, used when announcing the molad on Shabbos Mevarchim, equals 1/1080 of an hour, or 3 and 1/3 seconds.

12 She’eilos of Rav Acha’ei Geon, 67; Rambam, Hilchos Shabbos 5:21; Ha’Emek She’eilah, ad loc., note 22.

13 Ha’Emek She’eilah, ibid.; Gri”z, Hilchos Kiddush HaChodesh.

14 Rambam, Hilchos Kiddush HaChodesh 7:1.

15 Because these dechiyos are extremely technical, we suffice with explaining one of them.

16 Technically, only one of the possible combinations will result in the year being this length. Of the fourteen different year prototypes, three are sheleimah leap years of 385 days.

 




Can a Sheitel be Prohibited Because of Avodah Zarah?

I wrote this article originally several years ago when this topic was very hot in the news. I have revised it, based on currently available information. The purpose of this article is not to give a final decision on the topic, but to present some background of the issues.

Can a Sheitel be Prohibited Because of Avodah Zarah?

A Background Discussion of the Halachic Issues Involved in the Use of Indian Hair

Introduction to the Laws of Avodah Zarah

In addition to the cardinal prohibition against worshipping idols, the Torah distanced us from any involvement with or benefit from avodah zarah. Furthermore, the money received in payment for the avodah zarah is also tainted with the stigma of avodah zarah and may not be used. As will be described later, this money must be destroyed in a way that no one will ever be able to use it.

Chazal prohibited benefit even from the wages earned for transporting an item used in idol worship. Thus, the wages of a person who hired himself to transport wine used in idol worship are prohibited (Mishnah, Avodah Zarah 62a). He is required to destroy whatever he received as payment, and he must destroy it in a way that no one else can use it. The Gemara rules that if he received coins as payment, he must grind up the coins and then scatter the dust to the wind, to guarantee that no one benefit from idolatry.

In this context, the Gemara recounts the following story: A man who had rented his boat to transport wine owned by idolaters was paid with a quantity of wheat. Since the wheat may not be used, the question was asked from Rav Chisda what to do with it. He ruled that the wheat should be burnt, and then the ashes should be buried. The Gemara asks why not scatter the ashes, rather than burn them? The Gemara responds that we do not permit this out of concern that the ashes will fertilize the ground where they fall. Thus, we see how concerned Chazal were that we not gain any benefit from idols, even so indirectly.

Takroves Avodah Zarah – An Item Used to Worship an Idol

One of the laws relating to idol worship is the prohibition against using takroves avodah zarah, that is, not to benefit from an item that was used to worship avodah zarah. According to the accepted halachic opinion, the prohibition against using takroves avodah zarah is min hatorah (Rambam, Hilchos Avodah Zarah 7:2; cf. Tosafos, Bava Kama 72b s.v. de’ei, who rules that the prohibition is only miderabbanan).

It should be noted that one is permitted to use items that are donated to avodah zarah, provided these items are not used for worship. Thus, gold, jewelry, and other valuables donated to a Hindu temple may be used.

Mitzvos Pertaining to Avodah Zarah

There are several mitzvos of the Torah pertaining to avodah zarah, all of which convey the Torah’s concerns that we be distanced extensively from avodah zarah. For example, the Torah forbids having an avodah zarah in one’s house (Avodah Zarah 15a). This is based on the verse, velo sovie so’eivah el beisecha, “you shall not bring an abomination into your house” (Devarim 7:26). Furthermore, we are prohibited from providing benefit to the avodah zarah (Avodah Zarah 13a). Thus, it is prohibited to make a donation if a neighbor or business contact solicits a contribution for his church.

There is also a positive mitzvah to destroy avodah zarah. This is mentioned in the verse, abeid te’abdun es kol hamekomos asher ovdu shom hagoyim … es eloheihem, “you shall completely destroy all the places where the nations worshipped their gods” (Devarim 12:2). According to Rambam, the mitzvah min hatorah applies only to destroy the avodah zarah itself and that which decorates and serves it. There is no Torah requirement to destroy items used in the worship of avodah zarah (Hilchos Avodah Zarah 7:1-2, as proved by Kehillas Yaakov, Bava Kamma end of #3). However, as mentioned above, one is required, miderabbanan, to destroy anything that is prohibited to use, to make sure that no one benefits from the avodah zarah items (see Avodah Zarah 51b; Rambam, Hilchos Avodah Zarah 8:6).

Some Background Facts in the Contemporary Shaylah About Indian Hair

The Indian sub-continent is the home of the largest population of Hindus in the world. Hinduism is a religion that falls under the category of avodah zarah.

Most Hindu sects do not cut their hair as part of any worship ceremony. However, there is one large sect whose members sometimes shave their hair as an acknowledgement of thanks to one of their deities. This practice is performed by thousands of Hindu men, women, and children daily at their temple in Tirupati, India. The temple then collects the hair shavings and sells the women’s hair for wig manufacture. Although the majority of human hair used in wig manufacture does not come from India, a significant percentage of hair in the international wig market comes from Indian idol worshippers.

A very important halachic issue is whether the hair shaving procedure that takes place in this Hindu Temple constitutes an act of idol worship, or whether the hair is simply donated for the use of the idol. This question is both a practical question, that is, what exactly do they do, and a halachic issue, whether what they do renders the hair takroves avodah zarah, which is prohibited to use min haTorah. As mentioned above, it is permitted to use an item that was donated to an avodah zarah. Such an item does not carry the halachic status of takroves avodah zarah, which is prohibited to use. However, if the shaving is an act of idol worship, then the hairs may not be used.

The Earlier Ruling

Many years ago, Rav Elyashiv ruled that there is no halachic problem with using hair from the Indian temples. This responsa is printed in Kovetz Teshuvos (1:77). The person who asked Rav Elyashiv the shaylah provided him with information based on the opinion of a university professor familiar with Hinduism. According to the professor, the Hindus who cut their hair did so only as a donation to the temple, just as they also donate gold, jewelry and other valuables to the temple. Although there is presumably still a prohibition in purchasing the hair from the temple (because of the prohibition against providing benefit to an idol), Rav Elyashiv ruled that, based on the information provided, there is no halachic prohibition to use this hair.

However, Rav Elyashiv and several other prominent gedolim later ruled that the hair sold by this Hindu temple is prohibited for use, because of takroves avodah zarah.

What changed?

The critical difference is that, although this professor did not consider the haircutting to be an act of idol worship, not all Hindus necessarily agree with his opinion about their religion. Although it may seem strange to quote the story of an idolater, I think this small quotation reflects how at least one Hindu views this ceremony of shaving hair:

Rathamma has made the two-day journey to India’s largest Hindu temple with her family and friends to fulfill a pledge to her god. Provide us with a good rice crop, she had prayed, and I’ll sacrifice my hair and surrender my beauty.

This quotation implies that this woman was not coming to make a donation of a present to her god, but that this is a method of worship. Of course, it could very well be that the author of these words is taking very liberal license with what Rathamma believes and does.

It should be noted that Rav Moshe Shternbuch, shlit”a, currently Rosh Av Beis Din of the Eidah HaChareidis in Yerushalayim, published a teshuvah on the question about the Indian hairs about the same time that Rav Elyashiv published his original ruling. Rav Shternbuch concluded that it is prohibited to use any sheitel produced with Indian hair, because of takroves avodah zarah.

Bitul — Nullifying the Prohibited Hair

What happens if the Hindu hair is mixed in with other hair? This is a very common case, since Indian hair is less expensive than European hair and, at the same time, is not readily discernible in a European sheitel. (As a matter of fact, it has been discovered that some manufacturers add Indian hair on a regular basis into their expensive “100% European hair sheitlach.”)

Assuming that hair shorn in the Hindu temple is prohibited because of takroves avodah zarah, does that mean that a sheitel that includes any Indian hair is prohibited to be used? What about the concept of bitul, whereby a prohibited substance that is mixed into other substances in a manner that it can no longer be identified is permitted?

The answer is that the concept of bitul does not apply in most cases when avodah zarah items became mixed into permitted items. Chazal restricted the concept of bitul as applied to avodah zarah because of the seriousness of the prohibition. Therefore, if a sheitel contains hair from different sources, such as hair made of European hair with some Hindu hair added, the sheitel should be treated as an Indian hair sheitel. Thus, according to Rav Elyashiv, this sheitel should be destroyed in a way that no one may end up using it. It is not necessary to burn the sheitel. It would be satisfactory to cut it up in a way that it cannot be used, and then place it in the trash.

However, there is some halachic lenience in this question. Since the concept that avodah zarah is not boteil is a rabbinic injunction and not a Torah law, one may be lenient, when it is uncertain that there is a prohibition. This is based on the halachic principle safek derabbanan lekulah, that one may be lenient in regard to a doubt involving a rabbinic prohibition.

Thus, in a situation where a sheitel is manufactured from predominantly synthetic material, European hair, or horse hair (this is actually quite common), and there is a question whether some prohibited hair might have been added, the halacha is that the sheitel may be worn.

It should be noted, that when attempting to determine the composition of a sheitel, one cannot rely on the information provided by a non-Jewish or non-frum manufacturer. In general, halacha accepts testimony from these sources only when certain requirements are fulfilled, which are not met in this instance.

Many synthetic sheitlach contain some natural hairs to strengthen the sheitel. In this instance, there is an interesting side-shaylah. One can determine whether there are human hairs in these sheitlach by checking the hairs of the sheitel under a microscope. The human hairs will look different from the synthetic material. However, there is no way that this can tell us the country of origin of the human hairs, and it certainly cannot tell us whether the hairs were involved in any worship. Is one required to check the hairs of a synthetic sheitel under a microscope to determine whether there are any human hairs? All the poskim I have heard from have ruled leniently about this issue – one is not required to have the sheitel checked.

Color of Sheitel

I have heard people say that there should be no halachic problem with blond- and red-headed sheitlach, since Indian women have dark hair. Unfortunately, based on my conversations with sheitel machers, there does not seem to be any basis for this assumption. In most instances, the hair used in sheitlach is bleached, removing all color, and then (much later in the process) dyed to a specific color. Thus, there is no reason to assume that simply because a sheitel is a fair color that it cannot have originated in a Hindu temple.

Who could imagine that in the modern world, shaylos about the laws of avodah zarah would affect virtually every frum household. It goes to show us how ein kol chodosh tachas hashemesh, there is nothing new under the sun (Koheles 1:9).

 




May I Enter the Room that I Sold to the Non-Jew

The style of this article is an experiment; it is somewhat different from what I usually send out, and I am looking for feedback from our readers. The article consists of an actual teshuvah that I wrote many years ago and is published in Shu”t Nimla Tal (Orach Chayim, #167), which is available for download on the website RabbiKaganoff.com. (The teshuvah begins on page 214 of the sefer.)

To create this article, the original Hebrew teshuvah was rendered by Google translate, and then edited. I am looking for feedback from our readership whether you enjoyed this style of article, and whether you would like to see it in the future on an occasional or even a regular basis.

The responsum was an answer to an actual question that I was asked:

“A room is rented to a non-Jew because it contains the chometz that was sold to him. Is it permissible to enter the room in order to remove something that was not included in the sale?”

The responsum, which was addressed to a Torah scholar, reads as follows:

The Magen Avraham (472:2) asked a question on the position of the Maharil, who permitted someone to use, in honor of the Seder, a very valuable item, perhaps made of gold or containing precious stones, that had been given by a gentile as collateral on a loan, what I will henceforth call a pawned item. The Magen Avraham questioned how the Maharil permitted the Jew to use the pawned item, when the halacha is that one may not use someone else’s property without permission. Since the Jew is holding the pawned item only to make sure that he can recoup the value of the loan should there be a default, the Magen Avraham assumes that the Jew is not permitted to use the pawned item without the explicit permission of the owner, until the loan is due. At that point, he is permitted to sell it or keep it.

The Magen Avraham answers that we can assume that the non-Jewish owner does not mind if one uses his pawned item only once, and, therefore, one may display the valuable item at the Seder as part of one’s celebration of this very special night.

Let us examine a related passage of Gemara. The end of tractate Avodah Zarah (75b) relates that Rav Ashi immersed a vessel he had received as collateral from a non-Jew, in fulfillment of the mitzvah of tevilas keilim, before using them for food. The Gemara inquires why Rav Ashi immersed the item when there is no  obligation unless the item is owned by a Jew. Was it because Rav Ashi contended that receiving the item as collateral is considered halachically as if the Jew already owns it? In other words, notwithstanding the borrower’s option to redeem it, the lender may assume that since most pawned items are not redeemed, he may already treat it as his property. An alternative position mentioned by the Gemara is that the lender may not assume that an item received as collateral can be treated as his. However, in Rav Ashi’s specific case, there were specific indications from the borrower’s actions that he did not intend to redeem the pawned item, and therefore Rav Ashi assumed that he had already acquired it.

Regarding the conundrum presented by the Gemara, the Shulchan Aruch (Yoreh Deah 120:9) assumes that the issue remained unresolved. He therefore concludes that if the Jewish lender notices any indication that the non-Jewish borrower does not intend to redeem the security, the lender should recite a brocha prior to immersing it. However, if there is no such indication, he should immerse the vessel before using it, but without reciting a brocha, since the borrower may return to redeem the security, in which case it was property of a gentile at the time of the immersion, and there was no requirement to immerse it. Halachically, only an item owned by a Jew requires immersion before use, not an item used by a Jew that is owned by a non-Jew. When there is uncertainty whether one is fulfilling a mitzvah with a certain action, the usual procedure is to perform the mitzvah but without reciting a brocha because of the principle of safek brochos lehakeil.

Returning to the ruling of the Shulchan Aruch, since it is uncertain whether the item requires immersing before use, one should immerse it, but without reciting a brocha.

At this point, this passage of Talmud and the ruling of the Shulchan Aruch present us with a question on the position of the above-quoted Magen Avraham. The Magen Avraham asked on the Maharil’s position how he can permit the lender to display at his Seder the valuable pawned items that he is holding, since one may not use an item without permission, and the lender has no explicit permission to use the collateralized valuables. The Gemara in Avodah Zarah that we just quoted is certainly assuming that Rav Ashi was permitted to use the collateralized item – the only question is whether he should assume that the item is already his property, and therefore he should recite a brocha when he immerses it, or whether he should not recite a brocha, because the property still belongs to the gentile. But no one questions Rav Ashi’s right to use the item.

The Taz (in Yoreh Deah) indeed questions how Rav Ashi could use the security and explains that halacha does not forbid using an item of a non-Jew that is already in your house. In other words, the prohibition not to use an item without permission does not apply to a non-Jew’s property that he is storing in a Jew’s house, whether as collateral or for any other reason.

Based on this above discussion, several halachic authorities (Chok Yaakov; Machatzis Hashekel) dispute the Magen Avraham’s assumption that one may not use collateral owned by a non-Jew without permission. According to these authorities, it would seem that it is permitted to enter the room that you have rented out to the non-Jew in order to use the room for your own purposes.

However, it might be prohibited to enter the room for other reasons, germane to the sale of the chometz. When the Terumas Hadeshen discusses how one should sell one’s chometz to a non-Jew, he states expressly that the chometz should be removed from the house of the Jewish seller. Many authorities question this requirement, noting that the Gemara states that it is permitted to have a non-Jew’s chometz  in one’s house on Pesach, provided that a barrier the height of ten tefachim (about forty inches) is constructed around the chometz, presumably to guarantee that no one mistakenly eat it. Why, then, does the Terumas Hadeshen insist that the chometz sold to the non-Jew be removed from the Jew’s residence?

Most later authorities explain that one is permitted to leave the non-Jew’s chometz in one’s house, provided that he has taken adequate care that no one mistakenly eat it. The reason that the Terumas Hadeshen insisted on removing the chometz from the Jew’s property was because of the technical laws that must be followed in order to change ownership of the chometz  to the non-Jew. However, should one accomplish changing ownership to the gentile without moving it out of your house, you are not required to do so.

One of the standard methods we use of guaranteeing that the sale of our chometz to the gentile is fully valid is to rent to the gentile for the entire holiday the area where the chometz is stored. However, even when one rented to the gentile the area where the chometz is stored, this rental should not preclude the Jew from entering this area for a short period of time. It therefore appears that, should the need develop, it is permitted to enter the room that was rented to the non-Jew.

Wishing everyone a chag kosher vesomayach!!

 

 




The Halachos of Borrowing

 

Question: Shattered Shield

“A friend left for a few weeks, leaving me the keys for his car and permission to use it whenever I wanted. The first morning, when I went to get the car, I discovered that the windshield had been shattered by a stone or brick. Am I obligated to replace the windshield?”

Introduction:

Answering this question requires that we understand the legal responsibilities of someone who borrows an item. As always, the purpose of our article is not to offer a definitive halachic ruling, but to present background and knowledge. In this instance, as in all cases, a person should address any particular question to his rav or posek. And, since there are probably two parties involved, to resolve a matter amicably, I suggest that the two of you agree on a specific rav or dayan whose expertise you both recognize.

The Basics:

In parshas Mishpatim, the Torah presents three types of shomrim, people who assume responsibility for other people’s property. The Torah shebe’al peh, our Oral Torah, explains that these are the three categories:

  1. A shomer chinam takes care of someone else’s property without any compensation and has no right to use the item. He is responsible to pay if the item was damaged due to his negligence, or if he used it without permission. If there are factual issues that are unresolved, such as determining whether the shomer was negligent, the owner may insist that the shomer swear a shevuah, an oath, to exonerate himself from liability. This last rule, that the owner is not required to accept the shomer’s version of what happened without corroborating evidence, is true also in regard to the other shomrim that we will soon discuss.

In recent history, batei din have been reticent about requiring someone to swear an oath, and therefore a beis din might effect a financial compromise in lieu of an oath.

  1. A shomer sachar is one who takes care of an item and receives financial benefit. He is liable if the item is lost or stolen, but he is not obligated if it became lost or damaged for some reason beyond his control, which includes, for example, armed robbery.
  2. A sho’eil borrows an item, receiving benefit without providing the owner with any compensation. As stated in the Mishnah (Bava Metzia 93a), a sho’eil is obligated to pay for any damage that happens to the item, even if it is completely beyond his control. The obvious reason why this is so is that since the sho’eil received benefit from the item gratis, he must make sure that he returns what he received, paying its full value, if need be.

Notwithstanding this obligation on the part of the borrower, there are two exceptional situations where the item is damaged, stolen or destroyed and the sho’eil is not obligated to make compensation. These are:

  1. Meisah machmas melacha, literally, the item or animal “died” or became damaged in some way as a result of the work for which it was borrowed. We will soon explain the rationale for this. In addition, the borrower is exempt only when he used the item without abusing it.
  2. Be’alav imo, the owner of the borrowed item was in the employ of the borrower at the time of the loan (Mishnah, Bava Metzia 94a).

Verification

As noted above, should there be a question about verifying the facts, whether the circumstances were indeed a case of meisah machmas melacha, the lender may demand that the borrower swear an oath to verify them. Also, if the event occurred in a time and place that there should have been eyewitnesses, the lender may insist that the borrower produce witnesses to verify what happened, rather than be satisfied with an oath.

In this context, the Gemara records the following din Torah (Bava Metzia 97a): A man borrowed a bucket that broke while he was using it. The two parties appeared before Rav Papa to adjudicate whether the borrower was obligated to pay. Rav Papa ruled that this is considered meisah machmas melacha. However, he first asked the borrower to produce witnesses that he did not use the bucket in an unusual fashion, for if he used it in an unusual way, the exemption of meisah machmas melacha would not apply.

Kinyan

There is a basic dispute among the rishonim concerning whether a shomer becomes liable as soon as he agrees to the arrangement (Rosh, Bava Metzia 8:15), or only when he makes a kinyan on the borrowed item (Raavad, quoted by Shitah Mekubetzes, Bava Metzia 98b). Kinyan refers to the act that effects loans, rentals, transfers of ownership of property and other legal agreements. In our situation, this question arises in the event that the borrowed item was left in the shomer’s care, but he never lifted, moved or did anything else that would legally make the item “his.” Some rishonim hold that the shomer becomes responsible only when he performs a kinyan, whereas others hold that he becomes responsible even when no kinyan is performed.

Among the halachic authorities, this matter is disputed by the Shulchan Aruch and the Rema, the latter ruling that a shomer becomes legally responsible as soon as he agrees to the arrangement (Choshen Mishpat 340:4).

In the case of an automobile, driving the car off when someone borrowed it constitutes a kinyan. According to some rishonim, taking possession of the keys is also a kinyan, but this is a minority opinion (see Rashi, Pesachim 4a, as explained by Korban Nesanel).

With this background, let us now examine our opening question:

Shattered Shield

“A friend left for a few weeks, leaving me the keys for his car and permission to use it whenever I wanted. The first morning, when I went to get the car, I discovered that the windshield had been shattered by a stone or brick. Am I obligated to replace the windshield?”

The damage caused here had nothing to do with the sho’eil, but, as we explained before, he is obligated to make compensation even then. However, according to the opinion that a shomer is not obligated until he makes a kinyan on the item, if the borrower did not drive the car, he has not yet become obligated. Thus, he would be exempt from paying for the damages, according to that opinion, which is the way many halachic authorities rule.

Establishing a condition

It is important to note that the system explained above regarding the responsibility of shomrim applies only when the two parties did not establish their own policy. However, if a sho’eil tells the owner that he is not assuming responsibility and the owner agrees, or if a shomer chinam assumes total responsibility, or if any other arrangement is made that both parties accept, that agreement will govern what liability exists (Mishnah, Bava Metzia 94a). Similarly, an agreement may also be made to eliminate any obligation on the shomer to swear an oath to verify the facts (ibid.).

Therefore, if a shomer chinam wants to avoid any potential liability, either to pay or to swear an oath, he should tell the owner that he will gladly watch the item, but that he is assuming no responsibility for the item, even should he be negligent, and that the owner must relinquish his right to have the shomer swear to prove his innocence. A sho’eil may make a similar condition before he borrows the item. However, bear in mind that if the sho’eil does make such a precondition, the owner may refuse to lend him the item. Since the sho’eil is aware of this, he is usually reluctant to make such a precondition. Our article is discussing the halacha that applies when they do not make their own arrangements.

Be’alav imo and Meisah machmas melacha

We mentioned above that a sho’eil is obligated to pay for all damages that happen to the item he borrowed, with the exception of two cases: meisah machmas melacha and be’alav imo. It is interesting to note that these two exemptions are, in one way, complete opposites. The exemption of be’alav imo is expressly mentioned in the Torah and thus fits the halachic category that we call gezeiras hakasuv. In this case, this means that attempts to explain the reason for this law will not affect the halacha. (Although the commentaries present many reasons for be’alav imo, these reasons will not change the halacha – they may qualify under the general heading of lo darshinan ta’ama dikra, we do not derive halachic conclusions based on reasons for mitzvos. Because of space considerations, we will not discuss in this article the topic of darshinan ta’ama dikra and how it relates to be’alav imo.)

On the other hand, since the exemption of meisah machmas melacha is never mentioned in the Torah shebiksav, we assume that the basis for this law is logic. Chazal understood that the sho’eil is not obligated to pay for an item that was damaged as a result of expected use.

The question is why this rule is true when the Torah obligates the borrower to replace the item, even should it be destroyed by a complete accident over which he had no control. The Gemara, when explaining this idea, states very succinctly that the animal was not borrowed for it to have a vacation. There are several ways to understand this statement of the Gemara. I will now present four of them.

Lender’s negligence

Among the halachic authorities, we find several approaches to explain the phenomenon of meisah machmas melacha, and there are differences in practical halacha that result. The Ramban explains that the reason for meisah machmas melacha is because the lender is considered negligent. He should have realized that his object or animal could not withstand the work for which he was lending it! Since he did not check this out, he has no claim on the borrower to replace it (Ramban, Bava Metzia 96b, quoted by Beis Yosef, Choshen Mishpat 340). For ease of presentation, we will refer to this approach as lender’s negligence.

Wear and tear

A second approach is that the person lending an item knows that there will be a certain amount of wear and tear, and he does not expect to be reimbursed for this (Nimukei Yosef, Rosh as explained by Machaneh Efrayim, Hilchos She’eilah Upikadon #4). If the animal or item could not withstand normal use, this is an extension of the wear-and-tear principle.

Mechilas hamash’il

A third reason is that when lending an item, one knows that the item can become damaged while it is being used, and this is included in the mechilah implied by the loan. This approach contends that a sho’eil is exempt when damage occurs as a result of the loan, even when it cannot be attributed to wear and tear. For example, the borrower told the owner that his intent is to take a trip to a certain place, which he did, and while there the animal was stolen (see Ramah, quoted by Tur, Choshen Mishpat #340). Since the owner knew the animal was being borrowed to take it to a specific place, any damage that happens because of that place is included as meisah machmas melacha, according to this third opinion. I will henceforth refer to this approach as mechilas hamash’il, meaning that, in advance, the lender forgives damage that occurs while the item is being used.

Of the three opinions cited so far, only the third exempts the sho’eil from paying when an animal is stolen. The previous two opinions both contend that meisah machmas melacha can include only damage that was a result of normal, expected work. According to the reason of lender’s negligence, the owner was not negligent if the animal was stolen, and, according to the wear and tear reason, the loss from theft was not a result of use.

Mekach ta’us

A fourth approach, mentioned in acharonim, is that when someone borrows an item or animal, he accepts responsibility only because he assumes that it can withstand the work for which he borrowed it. If it is incapable of performing that task, then we assume the borrower never assumed responsibility (Machaneh Efrayim, Hilchos She’eilah Upikadon #4). I will call this approach mekach ta’us, that the implied “contract” of responsibility was never agreed to by both parties.

To simplify our four approaches, they are:

  1. Lender’s negligence: The lender was negligent in not checking the item’s condition before lending it.
  2. Wear and tear: Lending includes the assumption that a borrower is not responsible for normal use.
  3. Mechilas hamash’il: The lender assumes responsibility for damage that resulted from the loan.
  4. Mekach ta’us: The borrower never assumed this responsibility.

Practical differences

Are there practical differences that result from this dispute? Indeed, there are many. Here is an early example: The Tur (Choshen Mishpat 340) quotes a dispute between the early rishonim, the Ramah (Rabbi Meir Abulafia, an early rishon living in Spain, not to be confused with Rabbi Moshe Isserlis, the Rema, who lived in Poland over three hundred years later, whose notes to the Shulchan Aruch we will be quoting shortly) and the Rosh, concerning the following case: Someone borrowed an animal for a specific trip, and the animal was stolen on the trip by armed robbers. The Ramah rules that this is considered meisah machmas melacha and the borrower is not obligated to pay, whereas the Rosh rules that it is not meisah machmas melacha and he is obligated to pay.

A careful study of the way the Tur presents the dispute implies that the Ramah assumes that the lender was mocheil any damages expected to happen as part of the lending (approach #3 above, mechilas hamash’il), whereas the Rosh assumes that the lender is mocheil only on expected wear and tear (approach #2 above, wear and tear). The Ramah appears to understand that any damage that results from the loan is included under meisah machmas melacha. (The approach to explain this dispute is presented by the Machaneh Efrayim.)

How do we rule?

The Shulchan Aruch (Choshen Mishpat 340:3) rules according to the Ramah: When the animal was stolen by armed robbers during the time that it was borrowed, the borrower is exempt from making compensation, because it is considered a case of meisah machmas melacha.

On the other hand, the Rema cites the Rosh’s opinion. The Shach agrees with the halachic conclusion of the Rema in this case, because he feels that the Ramban’s approach (#1 above, which I called lender’s negligence) should be followed, and this approach is in agreement with the Rema’s position in this case.

Playing cat and mouse

The following interesting case is mentioned in the Gemara (Bava Metzia 97a): Someone’s house was infested with mice, and the owner wanted to use an inexpensive, safe and environmentally-friendly way to eliminate the problem. He borrowed a neighbor’s cat to “exterminate” the mice.

Strength in numbers

The Gemara tells us that a very unusual thing happened. The mice gathered together and launched a counterattack on the cat, killing it! The question now was whether the borrower was required to compensate the lender for the deceased cat, and the matter became the subject of one of the most famous dinei Torah in history, presided over by Rav Ashi. The conclusion was that the borrower was exempt from paying, because this is a case of meisah machmas melacha.

Contemporary case

In a contemporary work, I found discussion about the following case: Reuven borrowed a car for a day. While he was driving the car, a child darted into the street in front of the car. Reuven braked, fortunately succeeding in avoiding striking the child. However, a truck behind him was following too closely. The truck hit the car, severely damaging it, and then escaped without providing any identifying information (hit and run) – leaving Reuven with a damaged, borrowed car. To complicate matters, the owner was not carrying collision insurance that would cover the damage. Is Reuven obligated to pay the owner for the damage?

According to the Ramban, approach #1, that meisah machmas melacha is exempt because the lender was negligent, Reuven is certainly obligated to pay. Although the damage was completely accidental, a sho’eil is obligated to compensate for accidental damage that happened while the item is in his care. Meisah machmas melacha does not apply, according to this approach, because the automobile was not deficient in any way.

The same halacha is true according to the Rosh (approach #2), who contends that the law of meisah machmas melacha exempts only wear and tear, which was not the cause for the damage. Furthermore, according to the fourth approach  (mekach ta’us) Reuven is obligated, again, because the automobile was in fine condition when he borrowed it.

However, what is the law according to the third approach, that I called mechilas hamash’il? This approach contends that an owner is mocheil any damage that might result from the loan. A contemporary author that I saw ruled that, according to this opinion, the sho’eil would be exempt from paying in this instance, since the damage happened as a result of the loan (Mishpetei HaTorah 1:35).

Conclusion

As we can see, the laws regarding responsibility for items are very complex and sometimes lead to surprising conclusions. In general, we should be vigilant when we assume responsibility for items belonging to others. A Torah Jew observes his contractual commitments with trust and faith. He certainly realizes that Hashem’s Torah is all-encompassing and directs every aspect of his life, certainly the details of his financial dealings.