Category: Featured Articles

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

Photo by edu wagtelenberg from FreeImages

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.

 

A Woman’s Guide to Tzitzis

The Torn Hole

Question # 1

Mrs. Friedman wants to know:

“The hole on my son’s talis koton in which the tzitzis strings are inserted is torn. Does this invalidate Yanki’s tzitzis?”

The Unraveled Knot

Question #2

Mrs. Weiss notices that the knots on her son’s tzitzis have untied. Are his tzitzis still kosher?

A Bicycle Casualty

Question #3, from Mrs. Goldberg:

“My son’s tzitzis got caught in his bicycle and several strings were torn. Are the tzitzis invalid?”

The Woman’s Tzitzis Guide

Why write a woman’s guide to tzitzis, when women are not required to observe the mitzvah, and, according to many authorities, are not even permitted to wear them? (See Targum Yonasan to Devarim 22:5, that a woman wearing tzitzis violates the prohibition of wearing a man’s garment.) In addition, some authorities contend that because women are exempt from fulfilling the mitzvah, they should not attach the tzitzis strings to the garment (Rama, Orach Chayim 14:1 and commentaries). (The Rama concludes that if a woman did attach the tzitzis to the garment, the tzitzis are kosher.)

The reason for this guide is that women are often responsible for the purchase, supervision, upkeep, and laundering of the tzitzis of their boys and men. Indeed, women often ask me questions relevant to these halachos. Men will also find this guide very useful.

In order to answer the above questions thoroughly, we must first understand some basics about how tzitzis are produced.

Please note that throughout this article, “tzitzis” refers to the strings placed on the corners of the garment; the garment itself will be called a “talis koton.”

Special Strings

Tzitzis are not manufactured from ordinary thread, but only from thread manufactured lishmah, meaning that the threads were spun with the intent that they be used to fulfill the mitzvah of tzitzis.

After completing the spinning, one takes several of these specially-spun threads and twists them together into a thicker string. This twisting, called shezirah, is also performed lishmah, with the intent of producing string for the mitzvah of tzitzis. Although, to the best of my knowledge, no early halachic sources discuss how many threads one needs to twist together, some have the custom of twisting eight such threads, which are called kaful shemonah.

The authorities dispute whether attaching the tzitzis strings to the garment and tying them must also be performed lishmah. In practice, we are stringent (Shulchan Aruch, Orach Chayim 14:2 and commentaries).

Combing Lishmah?

Some authorities require that even combing the fibers — the process that precedes the spinning — must be performed lishmah. The authorities conclude that this is not required, although some recommend manufacturing or acquiring tzitzis with this hiddur (Mishnah Berurah 11:3).

Articulation

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

Hand or Machine?

Regarding whether to buy hand- or machine-spun tzitzis, there is much discussion among authorities as to whether one may rely on machine spinning with the machine operator declaring that the tzitzis are being made lishmah (see for example, Achiezer 3:69; Har Tzvi, Orach Chayim 1:10). This is similar to the dispute concerning whether one may fulfill the mitzvah of eating matzoh on Seder night with machine matzoh, an issue that involved a huge dispute among the halachic authorities of 19th century Poland.

As far as I am aware, a talis koton sold for children’s use is probably made using machine-made tzitzis. (At the time I first wrote this article, I saw a talis koton meant for children with a hechsher describing that it was made by having the beginning of the spinning done by hand, as a hiddur on the regular machine-made variety.) Both hand- and machine- spun types are readily available for men’s tzitzis,  for talisim kotonim and for talisim gedolim. One should consult his Rav if he is uncertain whether to purchase the more expensive hand-made variety.

What Material Should Be Used?

Although one may make tzitzis threads from other material, universal practice today is to use sheep’s wool.

The Garment Does Not Require Lishmah

The law requiring that the tzitzis be manufactured lishmah applies only to the tzitzis strings, not the garment to which the strings are attached. This garment, the talis or talis koton itself, does not need to be made for the sake of the mitzvah – any cloth may be used.

For reasons beyond the scope of this guide, the custom is to make the talis gadol, that is worn for davening, from wool. Some have the custom to insist on woolen material for the talis koton also, though most are satisfied with a cotton talis koton. Authorities discuss and dispute whether the talis koton can be made of polyester or other synthetic materials, and I leave it to our readers to discuss this issue with their halachic authorities. Perhaps one day I’ll have a chance to write an article on this fascinating topic.

To review:

Before spinning wool to be used for tzitzis, the spinning machine operator, or the hand spinner, should say that he is spinning the threads with the intent that they will be used for the mitzvah of tzitzis. After spinning the wool into threads, one twists several tzitzis threads together into a thick, strong tzitzis string. This latter process also requires lishmah. There is no requirement to make the talis or talis koton garment lishmah.

Inserting the Tzitzis

Having completed the tzitzis string manufacturing process, we are now ready to learn how to insert the tzitzis strings into the garment. One takes four of these specially lishmah-made strings and inserts them through a hole in the corner of the garment, in order to fulfill the verse’s requirement that the tzitzis threads lie over the corner of the garment. The hole must be not so distant from the corner that the tzitzis are considered to be hanging from the main part of the garment (rather than on the corner), and yet not so close that the tzitzis hang completely below the garment (Menachos 42a; Shulchan Aruch, Orach Chayim 11:9). Thus, the hole should be placed in a way that after attaching the tzitzis to the garment, only the upper part of the tzitzis rests on the garment.

Where Should the Hole Be?

The Gemara explains that the hole through which the tzitzis are placed should be closer to the corner than “three fingerwidths,” which means three times the width of a finger. Whose finger and which finger?

Most poskim conclude that a fingerwidth is the width of an average-sized man’s thumb at its widest point.

Measure this distance, multiply it by three, and you have “three fingerwidths.” Now, measure three fingerwidths from the two sides of the garment near the corner (not from the actual right-angle corner of the garment) and you can create a square in the corner of the garment (Rama, Orach Chayim 11:9). If the tzitzis are attached beyond this area, they are not considered to be on the corner. Although there is a range of opinion as to exactly how much area this is, most poskim conclude that it is about six centimeters,* or about 2 1/2 inches, from each side.

Others follow a different interpretation of which finger is used to measure this distance, and according to their opinion, the area is a bit smaller (Artzos Hachayim; Mishnah Berurah 11:42).

Closest Hole

The closest the hole should be to the sides of the talis or talis koton is the distance from the end of the thumb nail to the thumb joint, measured by the thumb of an average-sized man. (This measures less than two centimeters or less than .75 inches.) If the hole is made closer than this, the tzitzis are not kosher, because the tzitzis strings will hang below the garment and, as I explained above, they are required to be resting partly on the garment itself. However, if one inserted and knotted the tzitzis threads in a hole that was in the correct place, and then subsequently the garment shrunk or was shortened, or the hole tore, resulting in the tzitzis being closer to the corner than they should, the tzitzis are nonetheless kosher (Shulchan Aruch, Orach Chayim 11:10).

To sum up:

To determine where the hole should be, one can examine the corner of the talis or talis koton and mark inward from the two adjacent sides that form the corner. Within two centimeters of either side is too close to the edge of the garment to attach the tzitzis, and more than six centimeters is too far.

Yes, Mrs. Friedman

Although we have not finished our description of tzitzis production, we have sufficient information to discuss Mrs. Friedman’s question. The hole through which the tzitzis strings are placed tore, and, as a result, the tzitzis are now closer to the corner of the garment than they should be. Does this invalidate the tzitzis?

Since the tzitzis strings were originally inserted into a hole that was correctly located, the tzitzis remain kosher.

I advised Mrs. Friedman to mend and reinforce the garment before it tears so badly that the tzitzis strings fall off, which will invalidate the garment, requiring sewing the clothing and undoing and restringing the tzitzis again to make it kosher.

Four in One

Let us now return to tzitzis production. After making the hole in its correct place, one takes four tzitzis strings that have been spun and twisted lishmah. Three of the threads are the same length, but one of the strings is much longer than the others since it will be coiled around them. After this string is wrapped around the others, it should be about the same length as the other strings.

The strings should be long enough that when they are completely coiled and tied (as I will describe) the free-hanging eight strings should be the length of eight fingerwidths (as described above), which is about 16–20 centimeters or about eight inches.

The Torah requires that there be exactly four tzitzis strings per corner. Using fewer or more strings invalidates the mitzvah and, according to some opinions, violates the Torah prohibitions of bal tosif or bal tigra, adding to or detracting from a Torah commandment (Shulchan Aruch, Orach Chayim 11:12 and commentaries).

Pulling Strings

At this point, one pulls the four strings through the hole in the talis or talis koton until the three shorter strings are halfway through the hole. The longer string should be pulled through so that on one side it is the same length as the other strings, but the other side is much longer, since this extra length will be wrapped around the other strings.

After the four strings are threaded through the garment, there will be eight strings hanging off the garment, which are then knotted together in a tight double knot. This permanent knot is Torah-required. This knot is made by tying a set of four strings from one side with the set of four strings from the opposite side.  To make sure that the two sets of four strings stay together throughout the process of coiling and knotting, one takes the four strings from the side that does not include the long string and loops them together at their end. We will soon see why we perform this step (Shulchan Aruch, Orach Chayim 12:1).

The longer string is now coiled several times around the seven others and then the two sets of four strings are knotted tightly. The coiled tzitzis strings are called the gedil.

The accepted custom is to tie the eight strings together in five different places, each separated by an area where the long string is coiled around the others several times. Thus, there are four areas of coiled tzitzis strings, each held in place by double knots.

Remember the Mitzvos!

The five knots help us remember all the mitzvos. As Rashi writes, the gematriya (numerical value) of the word tzitzis (when spelled with the letter yud twice) equals 600. When one adds eight for the eight hanging tzitzis strings and five for the five knots that tie them, adds up to 613. Additionally, the five knots remind us of the Torah’s five chumashim.

The Torah, itself, did not require all these coilings and knots, but required only one knot and one coiled area. The other knots and coilings are only lichatchilah, the proper way to make the tzitzis. However, if one failed to make these coilings or knots, the tzitzis are nevertheless kosher, provided there is at least one coiled gedil area and at least one knot.

Similarly, if the coiling unravels in the middle — not an uncommon occurrence — the tzitzis are still fully kosher, as long as one gedil area remains.

This will help answer Mrs. Weiss’ question about some of her son’s tzitzis knots being untied. As long as one knot remains, and there is some area where the tzitzis strings are coiled together, the tzitzis are still kosher. Of course, one should re-wind the longer tzitzis string around the others and retie the knots, but in the interim the tzitzis are kosher.

Jewish Labor

The person attaching the strings to the garment must be Jewish (Menachos 42a; Shulchan Aruch, Orach Chayim 14:1). There was a major scandal a few years ago when unscrupulous manufacturers were discovered to have hired non-Jews to make tzitzis. Hopefully, this problem has been resolved, but one should check that the tzitzis have a reliable hechsher. Based on shaylos I have been asked, I have discovered that many people are unaware that children’s talisim kotonim must also be reliably kosher.

By the way, it is preferable that women not be the ones who insert the tzitzis strings onto the garment and tie them, since women are absolved from fulfilling this mitzvah (Rama, Orach Chayim 14:1 and commentaries).

How Many Coils?

The number of coils between the knots is a matter of custom. (Based on the Arizal’s tradition, common practice is to coil the thread seven times between the first two knots, eight between the next two, eleven between the third and fourth, and thirteen times between the fourth and fifth knots.

To recap, we twist the longer string around the others and tie the tzitzis strings into knots in a way that creates five knots and between them four areas of tightly coiled string that resemble a cable. Torah law requires only that we tie one knot and that there be some area of coiled string.

Hang Loose!

After completing the coiling and tying, the rest of the strings are allowed to hang freely. The free-hanging strings are referred to as the “pesil.” As I mentioned above, when making the tzitzis, the pesil should be at least eight fingerwidths long, which is about eight inches (Shulchan Aruch, Orach Chayim 11:14). However, if the strings become torn afterward, the tzitzis are still kosher, if even a very small amount of pesil remains – long enough to make a loop and knot it, which is probably about an inch (Shulchan Aruch, Orach Chayim 12:1).

Tear Near the Top

If the tzitzis strings become torn above the first knot, the tzitzis are invalid.

As I explained, tzitzis are made from four strings inserted into the garment, and then knotted and coiled. The Torah requires that each of these four strings be attached and hang from the corner of the garment and be included both in the gedil, the coiled part, and the pesil, the loose, hanging strings.

If the thread tore at the top, then it is no longer hanging from the corner of the garment, but held in place by the other threads.

Torn String

We can now explain whether tzitzis become invalid when the tzitzis strings are torn, which depends on where the strings tore. If only one of the eight strings tore and only below the first knot, then the tzitzis are still kosher. This is because all four of the original tzitzis still have both gedil, the coiled part, and pesil, the hanging part.

If two of the eight strings tore at a point that there is no pesil anymore, then whether the tzitzis are still kosher depends on whether these were part of the same original tzitzis string or not. If they were two sides of the same original tzitzis string, then the tzitzis are invalid, because one of the four original strings now lacks pesil. This is the reason why one should be careful to loop four of the strings together before beginning the coiling and knotting, since this helps keep track in case two or more strings tear, whether they are the two parts of the same string, which will invalidate the tzitzis if no pesil remains, or parts of two different strings, in which case the tzitzis are kosher, if the other end of the string still has pesil.

If a tear takes place somewhere between the first knot and the pesil, we treat the remaining part of that string as nonexistent since it no longer hangs from the garment, but is being kept in place by the coiling and knotting. Thus, if this happens to only one string of the eight, the tzitzis are still kosher, because all four original tzitzis still have some pesil. However, if this happens to two or more strings, one must be concerned that it was two sides of the same original string and the tzitzis may be invalid, because only three of the original strings now have pesil.

Conclusion

Rav Hirsch notes that the root of the word tzitzis is “sprout” or “blossom,” a strange concept to associate with garments, which do not grow. He explains that the message of our clothing is extended, that is, sprouts and blossoms, by virtue of our tzitzis.

The introduction of clothing to Adam and Chavah was to teach man that his destiny is greater than an animal’s, and that his responsibility is to make all his decisions according to Hashem’s laws, and not his own desires. Introducing tzitzis onto a Jew’s garments reinforces this message; we must act according to what Hashem expects. Thus, whether we are wearing, shopping for, examining, or laundering tzitzis, we must remember our life’s goal: fulfilling Hashem’s instructions, not our own desires.

* All measurements in this article are approximate. One should check with a Rav for exact figures.

 

Is Your Kesubah Kosher?

Situation #1: Custom-made

Chayim and Chani hired a renowned calligrapher, who was careful to use an approved text, to design their kesubah. Nevertheless, the kesubah still suffered from severe, non-artistic flaws.

Situation #2: Silk-screen

While shopping together before their wedding, Tamar Goldstein and her chasan, Avrohom Fishman, chose a beautiful silk-screen kesubah, without realizing that it was a Sefardic text, which is much lengthier than a standard Ashkenazic kesubah. When the kesubah was filled in, the sections that Ashkenazim do not use were crossed out and the witnesses were instructed to sign.

Situation #3: Standard Hebrew Bookstore

Marcia and Yosef used an inexpensive kesubah, but some of the areas were left blank when the kesubah was signed at their wedding.

In some of the above cases, the couple was married without a kosher kesubah. Halacha mandates that a married woman own a kosher kesubah.[i] In all of the above cases, the person supervising the filling in and signing of the kesubah was apparently unaware of the complex laws involved. How to avoid these problems is required reading for anyone planning a wedding.

Introduction to the kesubah

The Torah placed many responsibilities on a husband to guarantee his wife security in their marriage. In addition to his requirement to “honor his wife more than himself and love her as much as he loves himself,”[ii] he is also responsible to support her at the financial level she is accustomed to, even if he comes from a more modest background, and at the comfort level of his family, if he comes from a wealthier lifestyle.[iii] His support requirement allows her to devote her energies to maintaining a household and bearing and raising children without assuming responsibility for their daily bread. In return for assuming these responsibilities, her husband may use her earnings and the profits from her property to help support the family; although all property that she owned prior to their marriage remains hers, as does anything that she inherits during the marriage. She also has the option of electing to keep her earnings for herself and forego his support.[iv]

Furthermore, a husband’s responsibility is not limited to supporting her throughout his lifetime, but includes maintaining her from his property after his passing.

The kesubah is a legal document

The kesubah is a legally binding, pre-nuptial agreement whose purpose is to protect a woman’s financial interests both during the marriage and upon its termination. One of the differences between the Ashkenazic and Sefardic versions of the kesubah is that the Ashkenazic version omits many halachic details specified in the Sefardic text. In practice, omitting the mention of these details does not change the husband’s requirements to fulfill these obligations.

Although an Ashkenazic husband may specify these obligations in his kesubah, the usual practice is not to do so.

So far, there seems to be no reason why a Sefardic couple should not use an Ashkenazi kesubah, or vice versa. However, there are reasons why a Sefardi couple should not use the standard Ashkenazi kesubah without some modification. The Ashkenazic text states that the kesubah requirement of the husband is min Hatorah, a minority opinion held by Rabbeinu Tam and some other early authorities.[v] However, many authorities contend that the requirements of kesubah were introduced by the early Sages, and some major authorities contend that stating that the husband is required min Hatorah to provide a kesubah invalidates the kesubah.[vi] Since the Rama[vii] justifies the use of this kesubah by Ashkenazim, even though many Rishonim question its kashrus, Ashkenazim may continue this practice, whereas Sefardim should not, without revising the wording.[viii] (An Ashkenazi man marrying a Sefardi woman may use an Ashkenazi kesubah, and a Sefardi man marrying an Ashkenazi woman should use a Sefardi kesubah.)

Documentary details

A kesubah must be written following the rules established by Chazal for the creation of any shtar, a halachically-mandated document. One may write it in any language,[ix] yet the almost-universal practice is to write it in Aramaic, which is written in Hebrew characters and is halachically considered a Hebrew dialect.[x]

Anyone may write a kesubah – man or woman, adult or child, Jew or gentile, human or machine. However, two people who have the status of kosher witnesses regarding all Torah laws must sign the kesubah. In addition, the custom in many places is that the groom also signs the kesubah, a practice that dates back at least to the thirteenth century and is mentioned by the Rashba.[xi]

Halachic details involved in writing a kesubah

The halachos of writing kesubos are manifold. As I mentioned before, the kesubah is a shtar, a halachically-binding document. Chazal established very detailed rules regulating how a shtar must be drawn, most of them to make it difficult to forge or alter. Because these details are highly technical, someone writing a kesubah who is unaware of these rules will probably produce an invalid document. It is therefore very important that the kesubah be reviewed by someone well-versed in these areas of halacha. Here are some examples of Chazal’s regulations:

Everything in a shtar must be written in a tamperproof way. For example, one must write the word mei’ah (hundred) so that it cannot be altered to masayim (two hundred). This is done by placing the word in the middle of a line, not at the end, and by writing it close enough to the next word so that two letters cannot be inserted between them. A shtar may not be written on paper or with ink that can be erased without trace.[xii] One may not write words in the margin that can be easily altered. For example, one may not place the numbers shalosh (three), arba (four), sheish (six), sheva (seven), or eser (ten) in the margin, since these numbers can easily be altered to make them plural.[xiii]

The witnesses must sign the shtar close enough to the text that one cannot insert other conditions or factors above their signature.[xiv] As an additional safeguard, no new conditions or details are derived from the last line of a shtar, just in case someone figured out how to sneak a line between the end of the shtar and the witnesses’ signature.[xv] For this reason, the last line of every shtar simply reviews the basics of the transaction to which it attests; typically, the last line of a standard kesubah reviews the names of the bride and groom — all information previously noted.[xvi] The accepted practice today is to safeguard every shtar in an additional way, by closing it with the words hakol shrir vekayom, “and everything is valid and confirmed,” since no supplements are allowed after these words.

May one initial a correction?

In addition to the above examples, a shtar may have no blank spaces, erasures or cross-outs. The common, modern practice of modifying a contract by initialing adjustments is halachically unacceptable for a very obvious reason – how does this method guarantee that one party did not tamper with part of the contract already initialed by the other?

How does one correct a kesubah?

What does one do if one made a mistake while writing a shtar, or if one wants to adapt or modify a standard printed kesubah document? Must one dispose of the shtar and start over?

Not necessarily. Halacha accepts the following method of validating corrections: At the end of the shtar, one notes all the erasures and other modifications, closes with the words hakol shrir vekayom, and then the witnesses sign the shtar.[xvii] Thus, any irregularity is recorded immediately above the witnesses’ signature. If the witnesses mistakenly signed the shtar without verifying its modifications, they should place these modifications directly below their signatures and then re-sign the shtar.[xviii]

Does a mistake automatically invalidate a kesubah?

If someone wrote a shtar and did not follow Chazal’s instructions, is it valid? The Rishonim dispute whether the shtar is still valid, some contending that any shtar that does not follow Chazal’s rules is invalid. Both the Shulchan Aruch and the Rama conclude that the shtar is still legitimate, although the Rama rules this way only when it is quite clear that the shtar has not been tampered with.[xix]

Incorrectly corrected

I was once at a wedding where the couple had purchased a beautiful, specially-designed kesubah. While reading the kesubah before the wedding, someone noticed an error in the text of the kesubah. Can one correct this text immediately before the wedding ceremony? Fortunately for this couple, the mesader kiddushin (the rabbi overseeing the ceremony) admitted that he did not know the correct procedure for correcting text in a shtar. Instead, he presented them with a kosher, although far less beautiful, kesubah, saving the artistic one as a beautiful memento. Had he attempted to correct the kesubah, they could have spent their married lives without a kosher kesubah!

One prominent Rosh Yeshiva I know will not be mesader kiddushin. He unabashedly tells his talmidim that he has never had the opportunity to study the laws of documents thoroughly, and therefore he is not qualified to preside at a wedding. He arranges for a prominent talmid chacham to be mesader kiddushin in his stead. I give him much credit, and consider his behavior worthy of emulation.

What if the names are illegible?

Often, the names in a kesubah are written illegibly. These kesubos are invalid, since it must be clear who are the marrying parties using this kesubah.

At this point, we can already appreciate the problems that happened to the above-mentioned kesubos:

Chayim and Chani’s calligrapher used an approved text for the kesubah. Nevertheless, the kesubah still suffered from severe flaws – several words were written in such a way that they could be altered; numbers were placed at the end of the line in a way that they could be modified, and too much space was left in the middle of some lines. The result was a beautiful piece of art, but not a properly written kesubah.

Tamar chose a beautiful Sefardic kesubah, which in itself does not present a problem, provided that it was either fully filled out, or that the corrections were noted at the end. However, the person filling out the kesubah simply crossed out the remaining sections of the kesubah and then instructed the witnesses to sign. If it was indeed obvious that these parts of the kesubah were not tampered with after the signing, the kesubah is kosher, even though it was not filled in correctly.[xx] However, he should have noted at the end of the kesubah which lines were crossed through and have the witnesses sign below this declaration.

What about using a standard printed kesubah?

If a standard kesubah is arranged properly, it will reduce the incidence of many of the above-mentioned problems, but it is by no means foolproof. I have seen numerous standard kesubos improperly filled out. There are standard kesubos that have mistakes, such as placing certain information in the margin and leaving too much space between the kesubah and where the witnesses are expected to sign.

Situation #3:

Marcia and Yosef used an inexpensive kesubah for their wedding, but some areas were still blank when it was signed at their wedding.

Obviously, one may not use a kesubah without filling in all blank spaces, since someone could subsequently add information not in the originally signed document. If areas were left blank without omitting vital information from the kesubah, then whether the kesubah is kosher or not depends on the above-mentioned dispute between the Shulchan Aruch and the Rama. Sefardim who follow the Shulchan Aruch may assume that the kesubah is kosher, notwithstanding its flaws, whereas Ashkenazim must replace this invalid kesubah as quickly as possible.

Correcting a kesubah

What does one do if, after reading this article, one checks one’s kesubah and discovers that it has one of the above-mentioned fatal flaws?

Don’t panic. Simply contact a locally available talmid chacham, telling him that you suspect your kesubah may be invalid. He will check it and rule whether it requires replacing or not. One should not replace a kosher kesubah, but an invalid one must be replaced. There is a special text to be used when replacing an invalid kesubah, called a kesubah demishtakich bei ta’usa, a kesubah in which a mistake was found, that is used in these circumstances. The talmid chacham fills in the corrected kesubah, which is then signed by two witnesses and given to the wife. The form for such a corrected kesubah is not difficult to obtain.

(Similarly, if a woman has misplaced her kesubah, the couple should have it replaced immediately. Replacing a lost kesubah is a simple procedural matter that takes a matter of minutes and should not involve any major costs. Speak to your local posek. Also, a couple who were originally not married in a halachic fashion and are now observant need to obtain a valid kesubah.)

Datelining a kesubah in the wrong place

By the way, datelining a kesubah with the wrong location does not invalidate it.[xxi] Thus, it is not of the highest importance to determine the exact legal location of a hotel or hall where a wedding is located.

What if we misspelled one of the names?

Halacha has extensive rules how to spell names, yet I have seen many kesubos with the names misspelled. Fortunately, this rarely invalidates a kesubah, and one should not rewrite the kesubah of a married couple because of this mistake.

Should we include our family names?

Many contemporary authorities feel that family names should be included in the kesubah. In fact, whether one does or not is usually dependent on local custom.

A humorous error

The kesubah states that the husband will support his wife bikushta, faithfully, with the “t” sound spelled with the Hebrew letter tes. I once saw a kesubah where the scribe misspelled the word with the letter taf, and therefore the word translates as “with a bow,” thus committing the groom to support his wife “with the bow.” For her sake, I hope that he was an expert archer or violinist. Fortunately, this kesubah is kosher, even if the groom is as talented in these areas as I am.

As we see, writing a kesubah correctly requires extensive halachic knowledge of the laws of documents, an area not as well known as it should be. Without question, this is the most common cause of so many people having invalid kesubos.

Many people place much effort into obtaining a beautiful kesubah, with stunning artwork and calligraphy. Indeed, there is nothing wrong with enhancing the kesubah in this way. One must, however, be careful that, whether beautiful or not, the kesubah fulfills its purpose as a valid shtar. After all, a non-kosher kesubah is not worth the paper on which it is written.

 

[i] Shulchan Aruch, Even HaEzer 66:3

[ii] Rambam, Hilchos Ishus 15:19

[iii] Kesubos 48a, 61a

[iv] Kesubos 58b, 70b, 83a, 107b

[v] See Tosafos and Rosh, Kesubos 10a; Shu’t HaRivash #66;

Shu’t Tashbeitz 2:182; 3:301

[vi] Ramban, Kesubos 110b; Ritva, Kesubos 10a

[vii] Even HaEzer 66:6

[viii] Shu’t Yabia Omer 3:Even HaEzer:12

[ix] Gittin 11a

[x] See Rama, Even HaEzer 126:1

[xi] Commentary to Bava Basra 175a s.v. Miha

[xii] Gittin 11a; Shulchan Aruch, Choshen Mishpat 42:1

[xiii] Shulchan Aruch, Choshen Mishpat 42:4

[xiv] Shulchan Aruch, Choshen Mishpat 44:6, 7

[xv] See Shach 44:23

[xvi] Choshen Mishpat 44:1

[xvii] Choshen Mishpat 44:5, 9

[xviii] Rama, Choshen Mishpat 44:11

[xix] Choshen Mishpat 44:1, 5

[xx] See Shulchan Aruch, Choshen Mishpat 44:5

[xxi] Choshen Mishpat 43:22

May I Divine?

Question #1: Skipping the Thirteenth Floor

“May a frum builder skip the number 13 when naming the floors of a building?”

Question #2: Snakes and Ladders

“Is there a halachic source that one should change his plans if he sees a snake when he leaves on a trip?”

Question #3: Monkey Business

As I was preparing this article, Reuvein asked me the following question: “I am in the middle of negotiating the acquisition of a business. On the way to the meeting, a quirk accident happened. Should I interpret this as a reason to avoid the deal?”

Introduction:

Several mitzvos of the Torah prohibit different practices used to predict the future. Many of these are mentioned in parshas Kedoshim, including the prohibitions against ov and yide’oni, both ancient methods of necromancy (Vayikra 20:27), and the commandments: Lo senachashu velo se’oneinu (Vayikra 19:26), which I will translate as Do not make use of omens and do not divine times. These four prohibitions are repeated together with three similar others in parshas Shoftim (Devorim 18:10-11): Lo yimatza’ei becha… koseim kesamim, me’onein, umenacheish umechasheif… vesho’eil ov veyide’oni vedoreish el hameisim, “There shall not be found among you… a soothsayer, a diviner of times, an interpreter of omens or a sorcerer… or one who asks of ov or of yide’oni or one who consults the dead. Subsequently, in parshas Shoftim, the Torah commands Tamim tih’yeh im Hashem Elokecha, “You shall be whole-hearted with Hashem, your G-d” (Devorim 18:13). This means that we should not allow our relationship with Hashem to become diffused by placing confidence or decision-making in the hands of superstitions or worse.

Practicing omens, in Hebrew, nichush or nachash, includes taking action or avoiding taking action because of superstitious reasons. Divination, me’onein, can be defined as “attempting to foretell future events by use of supernatural powers,” although, as we will soon see, the Torah’s prohibition is more inclusive. According to the Rambam (Moreh Nevuchim 3:37), all of these practices are forbidden because they are similar to idol worship.

The basics of the prohibition of nichush are that one should not use methods that are outside of Torah to try to determine whether one should pursue a particular course of action. What exactly is included within these prohibitions? As we will see shortly, the rules here are not at all obvious and, indeed, are often disputed by the rishonim.

First source

A beraisa, quoted by the Gemara (Sanhedrin 65b-66a), presents the following list of situations that are prohibited because of nichush. In each of these, someone was planning a course of action, perhaps leaving on a business trip or similar mission, and then, because something occurred, he changed his plans. The situations listed are:

His bread fell out of his mouth.

He dropped his walking stick.

His son called him from behind (presumably as he was leaving the house).

He heard the call of a raven.

A deer crossed his path.

He saw a snake on his right side or a fox on his left.

Apparently, during the time of the Gemara, there were superstitious beliefs that any of these events bode poorly for the results of the trip. One can compare this to contemporary superstitions about black cats or the number thirteen. This Gemara teaches that one may not base a decision on an omen or other factor that bears no rational influence on the planned course of action. In all of the above cases, someone who changes his plans because he feels that he has just seen a bad omen violates a Torah law.

Snakes and ladders

At this point, we can answer one of our opening questions: “Is there a halachic source that one should change his plans if he sees a snake when he leaves on a trip?”

Quite the contrary, there is a halachic source that prohibits changing one’s plans under these circumstances.

Should I pay my taxes?

The above-quoted passage of Gemara continues with several other applications of this prohibition:

Someone requests from the tax collector, “Don’t begin your collecting with me,” because he feels that this is a bad omen. Similarly, someone who postpones paying a debt at the beginning of the week or the month because of a belief that this will portend a bad week or month also violates the prohibition of nichush.

The Gemara (Sanhedrin 66a) concludes its discussion there by quoting a different beraisa: The Rabbis taught: Do not use omens or lucky times – such as those who use omens of weasels (in Hebrew, chuldos), birds or stars. (Although our text of the Gemara says fish, the Rambam, Commentary to Mishnah, Avodah Zarah 4:7, and other rishonim cite stars as the correct version.) Similarly, a person who changed his plans because a black cat crossed his path violated a prohibition of the Torah. Someone who knowledgeably does this would be invalid as a witness for a wedding, because he has violated a lo saaseh of the Torah.

No causal connection

The Ran (Sanhedrin ad loc.) explains that nichush is prohibited when there is no logical causal connection between the event that transpired and the plans that one is changing. The only reason one is changing his plans is because of a belief that the events (the bread falling, the deer crossing the path etc.) are meant to foretell something.

On the other hand, it is permitted to change your plans because of a logical reason. For example, someone planning a trip who sees thunderclouds on the horizon may change his travel plans for the day, because it appears that it will rain, making the traveling unpleasant or even potentially dangerous. Since this is a logical reason to postpone his trip, it has nothing to do with the prohibition against nichush (Ran). Similarly, it is permitted to follow a procedure that can be shown to have medical benefit, as we will now explain (Moreh Nevuchim; Meiri, Shabbos 67a).

Locust eggs and fox teeth

The Mishnah (Shabbos 60a) rules that an ill person who has a need to, may wear a ke’meia, an amulet, whose efficacy is established, into or through a reshus harabim, a public area on Shabbos. For someone ill, this is considered the halachic equivalent to wearing an ornament or a garment (Rashi ad loc.). A later Mishnah (Shabbos 67a) cites a dispute whether one is permitted to walk through a public area on Shabbos while   wearing the egg of a grasshopper, the tooth of a fox or the nail used to hang someone from a gallows. The tanna who permits this considers these items halachically the same as an amulet whose efficacy is established. The tanna who forbids wearing these items prohibits doing so even on a weekday, because he considers this to be a form of nichush (see Rashi). The Gemara concludes that, since the medical value of this treatment is demonstrable, wearing it does not violate the laws prohibiting nichush. We rule according to this tanna.

Dispute among rishonim

At this point, we need to introduce a dispute concerning the extent of what the Torah prohibited. The precise question is whether the Torah prohibits being influenced only by prevalent superstitious practices, or whether any method of foretelling the future not firmly grounded in Torah is forbidden. In other words, we know that the Torah provided methods to foretell the future by consulting the urim vetumim worn by the kohen gadol or via information gained from a prophet. These are certainly permitted. There is, however, a dispute regarding whether one may create one’s own method as a basis to decide whether to proceed with a specific course of action. In the Rambam’s opinion, anything that one would rely upon to base one’s decision or plan of action is prohibited (Hilchos Avodas Kochavim 11:5). However, according to the Radak (Shmuel I 14:9), only practices that are based on superstition, sorcery, idol worship or similar nefarious bases are prohibited. It is permitted to do something as a sign or symbol, because this strengthens one’s resolve. (See also Ra’avad, Hilchos Avodas Kochavim 11:4, 5, who also follows this approach). Shortly, I will show a few examples of this dispute.

Dependent on this dispute will be two very different ways of understanding the following passage of Gemara (Chullin 95b), quoting the great amora, Rav: “Any nachash that is unlike what was performed by Eliezer, the slave of Avraham, and unlike that performed by Yonasan, the son of Shaul, is not a nachash.” Prior to presenting the two approaches to understanding this Gemara, let us examine the two events quoted.

The story of Eliezer

When Eliezer was on his mission to find a wife for Yitzchak, the Torah describes that upon his arrival in the city of Nachor, he asked Hashem for a specific sign to identify the woman that he was seeking. Eliezer prayed for G-d to send him the chosen woman on the following basis: Should he ask her to provide him with a bit of water, and she would respond, “I will also provide water for your camels,” this girl is to be Yitzchak’s bride, without any other questions or research (Bereishis 24:14). According to some rishonim, what Eliezer did qualifies as an act of nichush, since he made his action totally dependent on an outside factor.

The story of Yonasan

The other example mentioned by the Gemara is that of Yonasan, the crown prince son of King Shaul. At a time when the Jews had almost no weapons and were the underdog in an incredibly lopsided war against the Pelishtim, Yonasan, accompanied only by his armor-bearer, advanced towards a garrison of Pelishtim soldiers. Yonasan told his armor-bearer, “If they say to us, ‘wait until we reach you,’ we should remain in our place and not advance towards them. However, if they say, ‘come forward to us,’ then we should attack, because this is our sign that Hashem has given them over to our hands (Shmuel I 14:8-10).” This, not withstanding that Yonasan and his armor-bearer were only two attacking an entire garrison!

Why did the Gemara refer to what Yonasan did as an act of nachash, divining?

We find a major dispute among the rishonim how to interpret the words of the Gemara, “Any nachash that is unlike what was performed by Eliezer, the slave of Avraham, and unlike that performed by Yonasan, the son of Shaul, is not a nachash.”

Most early rishonim (Rashi, Rambam, Tosafos) understand the Gemara to mean that anyone who follows an approach similar to what Eliezer or Yonasan did has violated the prohibition of nichush. This approach contends that other than prophecy or the use of the urim vetumim, using events over which I have no control to determine my course of action is included under the prohibition of nichush.

Of course, the obvious problem with this approach is that if these actions indeed violate the prohibition of nichush, why were Eliezer and Yonasan permitted to perform them? Here are some of the answers provided for this question.

Eliezer’s heter

The prohibition against nichush applies only to Jews and not to bnei Noach, and Eliezer had the status of a ben Noach (Tosafos, Chullin 95b s.v. Ke’eliezer).

According to this approach, the story of Yonasan is difficult to explain, since he certainly did not qualify as a ben noach.

Another problem with this answer is that the Gemara (Sanhedrin 56b) records a dispute whether the prohibition against nichush applies to gentiles. Should one hold that the prohibition against nichush does apply to gentiles, one would answer that Eliezer did not rely on Rivkah’s offering the water to propose the marriage to her, but waited until he had verified that she was indeed family of Avraham’s (Tosafos, Chullin 95b s.v. Ke’eliezer).

Yonasan’s heter

Tosafos and the Ran (ad loc.) explain that Yonasan was planning to attack and was not using the nichush to make a decision. He used the nichush only so that his armor bearer would be more confident that their attack would be successful. Since Yonasan was planning to proceed regardless of the outcome of his test, it was permitted to make the sign.

The Radak’s approach

On the other hand, other rishonim dispute the understanding of the mitzvah of nichush and, furthermore, understand the passage of Gemara in a very different way. In their opinion, the prohibition of nichush applies only to things that are commonly perceived to have value, either because of superstition, sorcery, idolatry or other similar reason. However, to base a decision on a sign that has no superstitious or clairvoyant basis is permitted. Therefore, neither Eliezer nor Yonasan was in violation of any halachic issue by using their signs to divine. The Gemara’s purpose, when referring to Eliezer and Yonasan as examples of nichush, has nothing to do with the prohibition of the Torah banning nichush, but is teaching us that the simanim used by Eliezer and by Yonasan were both effective (Ra’avad, Hilchos Avodah Zarah, 11:4). This opinion holds that proper use of simanim is halachically permitted, but, as a matter of advice, should not be used, unless one can be reasonably certain that the siman is effective.

The entire passage

Having explained the dispute defining what is included within the prohibition of nichush, I’ll now present the entire passage of Gemara in which we find this quote. Rav was traveling to the house of his daughter and son-in-law, Rav Chanan. The trip required crossing a river, which usually meant getting to the riverbank and waiting until appropriate transport showed up. As Rav approached the river, he saw that a ferry was approaching; this would shorten the time for him considerably. Rav then said: “The ferry came in my direction; we will have a celebration as a result!”

When Rav arrived at his daughter’s house, they were in the process of butchering an animal. With the meat of that animal, Rav’s family made a lavish meal in his honor, yet Rav did not partake in any of the meat. The Gemara suggests that Rav did not eat any of the meat because, since Rav had declared that the ferry’s proximity had indicated a good omen which would be a reason for celebration, this would violate the Torah’s law against nichush. The Gemara retorts that Rav himself had defined nichush as something similar to what was done by Eliezer, Avraham’s slave, or by Yonasan the son of Shaul; any other practice does not constitute nichush. The Gemara’s conclusion is that Rav did not eat meat for a completely unrelated reason — because he never participated in a festive meal unless it was a seudas mitzvah (Chullin 95b).

According to the Radak, Rav’s original statement would never be a prohibited nichush practice, since the proximity of the ferry was not commonly used as a superstitious omen. Therefore, one may use such a sign as a means of deciding on a future course of action.

How do we rule?

The Rema (Yoreh Deah 179:4) cites both opinions without reaching a clear conclusion, and then closes by saying that one who lives his life sincerely and is confident in Hashem’s ways will be surrounded by kindness, thus implying that it is better not to follow such signs.

The pesukim of children

The Gemara (Chullin 95b) shares with us that Shmuel “checked with seforim” and Rabbi Yochanan “checked with children.” What does this mean? According to most authorities, this means that when planning what to do, Shmuel used some method of having the words of seforim assist him in his decision what to do. This is probably similar to, or identical with, the famous goral haGra, literally, the Gra’s lottery, which involves turning pages a certain way for divine direction as to what to do in difficult circumstances. Rabbi Yochanan relied on a different approach, in which he would ask children what verses of the Torah they had just learned and would rely on their answer for direction. Some early authorities explain that relying on a pasuk of a child is like relying on the answer of a prophet, which is permitted (Semag; Ran; Shach, Yoreh Deah 179:5). Notwithstanding this approach, the Rambam still feels that one should not use either holy books or children’s verses to choose what to do, and Shmuel and Rabbi Yochanan also did not do so. They would simply note, after the fact, that what resulted could have been foretold on the basis of these methods, but they would not use these methods to plan in advance what to do.

Conclusion

As Rav Hirsch, explains, serving Hashem is something that we must do in a whole-hearted way, and includes understanding that all that Hashem does is for the good. Hashem alone decides our future, directs and guides our actions. The sole criterion to decide whether we should or should not do something is Hashem’s Will. The goal of the truly sincere person is to perform what Hashem wants from him at the moment, and he will thus be impervious to worry (Commentary, Devorim 18:13).

 

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