Question #1: Ba’alas Korei

May a woman be the ba’alas keri’ah of the megillah?

Question #2: Kiddush and Arba Kosos

The elderly Mr. Klein is fully alert, but, unfortunately, he has difficulty enunciating. May Mrs. Klein recite kiddush and the other brachos of the seder for him?

Foreword

Although there is a general rule exempting women from mitzvos aseih shehazeman grama, (time-bound requirements involving positive action), such as tefillin, sukkah and tzitzis, there are numerous exceptions to this rule. For example, women are required to observe mitzvos related to Shabbos and Pesach and to hear Megillas Esther on Purim, all topics that we will discuss.

Part of the miracle

In three places, the Gemara quotes an early amora, Rabbi Yehoshua ben Levi, who ruled that women are obligated to fulfill the mitzvos of megillah, ner Chanukah and the four kosos of seder night. Although these are all time-bound mitzvos aseih, women are obligated to observe these specific mitzvos because of a different rule, af hein hayu be’oso haneis, “they were also included in the miracle.” This rule means that, when Chazal created the mitzvos of kindling Chanukah lights, reading megillah on Purim or consuming the four cups on the first night of Pesach, they included women in the obligation, notwithstanding that they are usually exempt from mitzvos aseih shehazeman grama.

The rishonim dispute what the term af hein hayu be’oso haneis means. Is this emphasizing that they were saved by the miracle, or does it mean that they were involved in bringing about the miracle?

Rashi and the Rashbam (Pesachim 108b) explain that af hein hayu be’oso haneis means that women were involved in causing the miracle (think of Esther declaring that the Jews fast and do teshuvah, approaching Achashveirosh and setting Haman up for his execution). On the other hand, Tosafos (Megillah 4a s. v. She’af; Pesachim 108b s. v. Hayu) contends that it means that women, also, were saved by the miracle of survival, either physical or spiritual, that we celebrate in each of these observances.

Mitzvos min haTorah?

Note that Rabbi Yehoshua ben Levi applied his principle to three mitzvos, each of which is a requirement only miderabbanan. Is this coincidental, or is the principle of af hein hayu be’oso haneis a principle that Chazal created that does not apply min haTorah? This issue is disputed by two Ba’alei Tosafos. The first opinion cited by Tosafos contends that af hein hayu be’oso haneis is a rabbinic principle and will not create a Torah requirement (Tosafos, Megillah 4a s. v. She’af; Mordechai, Megillah #780). The disputant, Rabbeinu Yosef of Eretz Yisrael, rules that af hein hayu be’oso haneis applies even to mitzvos that are min haTorah.

Shomei’a ke’oneh

Prior to answering our opening questions, we need to understand a halachic principle called shomei’a ke’oneh, which translates, literally, as “hearing is like responding.” This principle means that when I hear someone recite a prayer, the megillah, kiddush or havdalah, it is considered as if I, myself, recited it.

I will explain this principle with an example that we utilize regularly: Except for heads of household, most of us fulfill the mitzvos of kiddush and havdalah by hearing someone else recite them. But the mitzvah is to recite kiddush and havdalah, not merely to hear them. So, how do we fulfill these mitzvos when we are only hearing them? The answer is that, because of shomei’a ke’oneh, it is deemed that we recited kiddush and havdalah ourselves.

Three conditions

For shomei’a ke’oneh to work, three conditions must be met:

(1) The individual performing the mitzvah must have in mind to be motzi the other people, meaning that he knows that he is acting on behalf of those listening.

(2) The individual performing the mitzvah must be required to observe this mitzvah. In other words, if a child (under bar or bas mitzvah) recites kiddush or havdalah on behalf of an adult, the adult does not fulfill the mitzvah, since the child is not obligated in this mitzvah min haTorah (see Brachos 20b).

(3) The listeners must have in mind that they are discharging their obligation to perform the mitzvah by hearing this recital.

Parshas Zachor

It is for this last reason that, immediately prior to Parshas Zachor, the gabbai announces that everyone should have in mind with the reading of the ba’al keri’ah to fulfill the mitzvah of remembering Amaleik’s dastardly deeds. Only the ba’al keri’ah actually reads the appropriate Torah portion. The rest of us discharge our obligation to observe this mitzvah by hearing the ba’al keri’ah, which, because of shomei’a ke’oneh, is considered as if we read it ourselves. In addition to Parshas Zachor, brachos, reading the Torah and the megillah, kiddush and havdalah, there are numerous other applications of shomei’a ke’oneh.

Not now!

We should note that, although the person being motzi others must be obligated by the Torah to fulfill the mitzvah, this does not require him to fulfill the mitzvah with this reading, by which he is being motzi others. He may recite kiddush or havdalah for someone else, even if he, himself, has already fulfilled the mitzvah, or if he intends to fulfill the mitzvah later with a different recital of kiddush or havdalah. That is why a ba’al keri’ah can read megillah many different times to be motzi other people, even though he has already fulfilled the mitzvah. This is also the reason why kiddush and havdalah are recited in shul, notwithstanding that the person reciting them plans to recite them again at home.

Ba’alas korei

At this point, I can present the halachic background behind our opening question: May a woman be the ba’alas korei or ba’alas keri’ah of the megillah?

Whether a woman may assume the role of ba’alas keri’ah is the subject of a fascinating dispute among rishonim, as we will soon see.

The Mishnah (Megillah 19b) states: Everyone is qualified to read the megillah except for a minor and someone who is not halachically responsible for his actions. The Gemara (Arachin 2b) asks: what is being added by emphasizing that “everyone” is qualified to read the megillah? The Gemara replies that women, who are usually not obligated in time-bound mitzvos, are obligated to read the megillah, to the extent that they may read the megillah to be motzi others. Rashi explains, explicitly, that this means that a woman may read the megillah to be motzi a man in his obligation. Thus, according to Rashi, a woman may be the ba’alas keri’ah of the megillah.

However, the Ba’al Halachos Gedolos (usually abbreviated as Bahag, the author of a halachic work from the era of the geonim) notes that the Tosefta, a halachic work dating back to the era of the Mishnah, disagrees. The salient part of the Tosefta (Megillah 2:4), as we have its text, reads: “All are obligated in the reading of the megillah… . Women… are exempt and cannot be motzi the public (rabbim) from their responsibility.”

Is there any way to resolve this contradiction between the Mishnah, as understood by the Gemara, and the Tosefta?

The Bahag presents an approach to explain the Mishnah and the Tosefta such that there is no conflict between the two positions. When the Mishnah implies, and the Gemara states explicitly, that a woman can be motziah (the feminine of motzi; plural motzios) someone else, it means that she can be motziah a woman, but not a man.

Why should this be true? The Bahag explains that there are two levels of mitzvah regarding the megillah:

(1) To read the megillah.

(2) To hear the megillah.

Ordinarily, a man fulfills both requirements when he hears the megillah from another man, since the person reading the megillah, who has both obligations, reads it for the purpose that the listeners fulfill all their megillah-related obligations. However, since a woman’s obligation is only to hear the megillah, but not to read it, it is not within her ability to be motzi someone who is obligated to read the megillah (Rosh, Megillah 1:4; note that Shu”t Avnei Neizer [Orach Chayim #511:4-5] and the Brisker Rav [Al Hashas, Inyanim #15] explain the Bahag’s approach slightly differently).

With this approach, the Bahag explains that the Mishnah refers to a woman reading the megillah for other women, which she can do, and the Tosefta refers to a woman reading the megillah for men, which is why it states that a woman cannot be motziah the public, which includes men.

The Tosefta according to Rashi

According to Rashi, either the text of this Tosefta is in error (as is not uncommon in our texts of the Tosefta) or it disagrees with the Mishnah as understood by the Gemara, in which case we rule according to the Mishnah and Gemara (both of these approaches are mentioned, in different places, by the Bach, Orach Chayim 689). We should point out that the texts that we have received of the Tosefta are notoriously unreliable, since copyists often made errors and, as a result, texts that were studied less frequently are often inaccurate. As an example, the rishonim who quote this Tosefta cite it with at least three significantly different texts.

Also, if, indeed, there is a dispute between the tanna who authored the Mishnah and the one who authored the Tosefta, the halacha follows the author of the Mishnah. Thus, either approach used to explain Rashi’s position is highly satisfactory.

Other rishonim?

Several authorities infer from the Rambam that he agreed with Rashi’s halachic conclusion (Magid Mishnah, Hilchos Megillah 1:2; Beis Yosef, Orach Chayim 689). The Beis Yosef and the Darkei Moshe quote other rishonim on both sides of fence: The Or Zarua rules like Rashi, whereas the Ra’avyah and the Mordechai (Megillah #779) rule like the Bahag. The Shulchan Aruch’s conclusion is unclear (Orach Chayim 689:2), whereas the Rema rules like the Bahag.

According to the Bahag’s opinion, some authorities contend that a woman hearing megillah when no male is fulfilling the mitzvah should not recite the brocha al mikra megillah, since she is not required to read the megillah, but to hear it. The Rema records that she should recite lishmo’a megillah, but others prefer that she should recite lishmo’a mikra megillah (Mishnah Berurah 689:8).

Getting a third opinion

Are there any other opinions? We actually find a few other opinions among rishonim, who present alternative ways of resolving the contradiction between the Mishnah and the Tosefta, with halachic results unlike either Rashi or the Bahag. Rabbi Moshe of Coucy (France), a ba’al Tosafos who wrote a halachic work based on the 613 mitzvos, usually called Sefer Hamitzvos Hagadol (abbreviated as Semag), agrees with the Bahag that a woman cannot be motziah a man, but disagrees with the reason why. In his opinion, just as Chazal ruled that a woman cannot fulfill the mitzvah of keri’as haTorah, because it is not kavod hatzibur for her to read for the community (Megillah 23a), she may also not read to be motzi a man in megillah (towards the beginning of Hilchos Megillah in the Semag). Tosafos (Sukkah 38a s. v. Be’emes at end) may agree with this opinion of the Semag.

With this approach, the Semag answers the contradiction between the Mishnah and the Gemara, on one hand, and the Tosefta, on the other, in a way similar to that of the Bahag. The Mishnah and Gemara teach that a woman may read the megillah for someone else; the Tosefta is ruling that she may not be the ba’alas keri’ah for a community.

There is yet a fourth approach to the issue, that of the Ba’al Ha’itur (Hilchos Megillah, page 110, column 1), but the details of his opinion are somewhat unclear (see Ran [Megillah 19b, 6b in the Rif’s pages]; Tur and Bach, Orach Chayim 689).

Three is a crowd

There is yet another opinion, contending that the Tosefta means that a woman should not read the megillah for more than one other woman (Korban Nesanel, Megillah 1:4:60, in explanation of Tosafos, Sukkah 38a s. v. Be’emes). According to this position, the Tosefta meant this when it said that a woman she should not read for the “public” (“rabbim” in the words of the Tosefta). The Mishnah Berurah quotes this approach as authoritative halacha (Shaar Hatziyun, 689:15). This opinion actually ends up with a stricter ruling, since, according to both Rashi and the Bahag, a woman may read megillah to be motziah other women, regardless as to how many there are, whereas this opinion allows her to be motziah only one other woman, not any more.

Kiddush

Does this principle of the Bahag apply to kiddush just as it applies to the reading of the megillah? Let us explore the halachic data on the subject.

The Gemara (Brachos 20b) states, unequivocally, that women are obligated in the mitzvah of reciting kiddush. Does this mean that a woman may recite kiddush to be motzi a man? Or, is this dependent on the dispute between Rashi and the Bahag?

Several early acharonim understand that the same dispute that exists between Rashi and the Bahag regarding women reading the megillah for men applies to women reciting kiddush for men (Maharshal and Bach, in their commentaries to Tur Orach Chayim 271). They conclude that a woman may recite kiddush for other women, but may not recite kiddush to be motzi a man in kiddush.

However, the Taz, who was the son-in-law of the Bach, disputes his father-in-law’s conclusion, contending that the Bahag’s opinion is limited to reading the Megillah, and does not apply to reciting kiddush. Since the Gemara concludes that women are obligated in kiddush min haTorah, it appears that they can be motzi men in kiddush. (This approach appears to be implied by the Gemara, Brachos 20b).

Kiddush according to the Semag

We noted above the opinion of the Semag that women cannot be motzios men in reading the megillah, just as they cannot be called up to read the Torah. This position should apply only to a woman reading the megillah, but not to reciting kiddush, which is usually not performed publicly, but recited at home.

Arba Kosos

At this point, let us explore one of our opening questions: The elderly Mr. Klein is fully alert, but, unfortunately, he has difficulty enunciating. May Mrs. Klein recite kiddush and the other brachos of the seder for him?

Chazal required that men and women have four kosos at the seder. It is difficult to imagine that someone can be motzi someone else in this requirement – drinking the four cups of wine it a mitzvah degufei, a mitzvah that is performed with one’s body, similar to matzoh, lulav and tefillin, which preclude one person performing the mitzvah for another. However, someone can recite the brachos that pertain to these kosos for someone else.

The Gemara states that each of the four kosos is associated with a different mitzvah of the seder, and, in fact, each of these mitzvos includes at least one brocha. We hold the kos while we recite these brachos.

1. The first kos is kiddush.

2. Over the second kos, we recite the brocha of Asher Ge’alanu, which completes the mitzvah of magid.

3. The third kos is used for birkas hamazon.

4. The fourth kos is the brocha upon the completion of Hallel.

Women are obligated in all the laws of the seder, which includes reciting the brachos associated with its four kosos. Does it say whether they can be motzios a man in these brachos? Would the Bahag’s opinion that they should not be motziah a man in megillah apply to these brachos? I did not find anyone who discusses this issue.

How do we pasken?

Having explained the understanding and ramifications of all these issues, let us present the halachic conclusions:

Most late authorities conclude that, regarding the reading of the megillah, we should follow the approach of the Bahag that women should not read megillah for men, and, also, we should follow the approach of the Semag that women should not read in public for a group of women. If no man is available who can read the megillah for her, a woman may read the megillah for herself, and she may also read the megillah for another woman.

Regarding the halachos of women being motzios men in kiddush, the later authorities do not accept the approach of the Maharshal and the Bach that the same ruling applies to kiddush. Instead, they contend that when there is a valid reason for a woman to make kiddush for her family, she should do so and be motziah the male members (Magen Avraham, 271:2 and later acharonim). Regarding the bracha of Asher Ge’alanu at the seder, my halachic conclusion is that Mrs. Klein may recite these brachos and be motziah Mr. Klein with them.

Conclusion

Why are women exempt from mitzvos aseih shehazeman grama? Most people, and certainly several commentaries, assume that this is because a woman’s family responsibilities should not be subject to other mitzvos that may conflict with them. However, not everyone agrees with this idea. Some note that there already is a halachic principle of oseik bemitzvah patur min hamitzvah, someone occupied with fulfilling one mitzvah is exempt from performing a different mitzvah, until the first mitzvah is completed. Thus, it would seem superfluous for the Torah to have established yet another rule, to exempt women from mitzvos aseih shehazeman grama, because of the exact same rationale.

Other authorities contend that Hashem, Who created all of our neshamos, knows which mitzvos our particular soul needs in order to thrive, and each individual’s neshamah needs different mitzvos. Following this idea, it is obvious that kohanim need certain mitzvos, but are excluded from others; men require certain mitzvos and cannot fulfill others, and so, also, with women. Each person’s neshamah has its own Divinely created formula for what it needs.

Question #1: Client’s celebration

A non-Jewish client is marrying off his daughter and expects his business associates to attend the reception. Knowing him, he expects me to spend a considerable amount of time there. Is this permitted, and, while there, may I eat or drink something that is kosher?

Question #2: Meeting a new client

My boss asked me to attend a lunch meeting with a new client in a non-kosher restaurant. Is this permitted, and, if it is, may I order a cup of coffee or a fruit plate?

Question #3: Company picnics and parties

May I attend the company end-of-year parties and picnics?

Answer:

Each of the above questions involve situations that may arise in today’s professional work environment. The Gemara teaches that the injunctions created by Chazal are dearer to Hashem than Torah laws. In this context, we can explain the vast halachic literature devoted to the many prohibitions created to protect the Jewish people from major sins. These include bishul akum, the prohibition against eating food cooked by a non-Jew, pas akum,which, under certain circumstances, prohibits bread baked by a non-Jew, and sheichar akum, which prohibits drinking certain types of beer in a non-Jew’s home or tavern.

The Rambam codifies these laws as follows: “There are activities that have no basis in the Torah that our Sages prohibited… to make sure that Jews and non-Jews do not … intermarry. These are the prohibitions: They prohibited drinking with them even when there is no concern about sacramental wine [yayin nesech]. They prohibited eating their bread or what they have cooked even when there is no concern that there are non-kosher ingredients or flavors added. What is an example of this prohibition? A person may not drink in a gathering of non-Jews even cooked wine that is not prohibited [as stam yeinam, wine handled by a non-Jew], or even if the Jew drinks only what he brought himself. If most of the assemblage is Jewish, it is permitted. It is prohibited to drink beer made from dates or figs or anything similar. But this prohibition [drinking beer] is prohibited only where it is sold. If he brought the beer home, it is permitted to drink it there, because the primary reason for the decree was that he should not come to eat a meal at a non-Jew’s house” (Rambam, Hilchos Ma’achalos Asuros 17:9-10).

Why is beer different?

There is a very obvious question here: The three other prohibitions mentioned here because of concerns of social interaction – bishul akum, pas akum and stam yeinam – are not dependent upon where you are. Consuming these items is prohibited, regardless of your location. However, the prohibition concerning the beer, as well as the prohibition of eating and drinking with non-Jews, applies only in the non-Jews’ venue.

Among the rishonim, we find several approaches to explain this question. I will present just one approach, that of the Tosafos Rid (Avodah Zarah 65b), who explains that, in the instances of wine, cooked food and bread – the main concern is that you will find the foods served by the non-Jew to be very tasty, and this eventually might lead to inappropriate social interactions. However, in the instance of beer, the concern is not the food, but the socializing – and prohibiting drinking beer where the non-Jew lives and works is a sufficient safeguard to discourage the inappropriate activity.

I have written previously many times on the topics of bishul akum, pas akum, stam yeinam and sheichar akum that are mentioned in this Rambam. I have also written about the questions germane to mar’is ayin implicit in several of the opening questions. However, I have never written on what the Rambam prohibits here: not to drink kosher beverages “in a gathering of non-Jew’s,” nor “to eat a meal at a non-Jew’s house.”

This ruling of the Rambam is subsequently quoted and accepted by all the halachic authorities, including Tur, Shulchan Aruch, Derisha, Shach, Taz, Pri Chodosh, Or Hachayim, Darkei Teshuvah, Chasam Sofer and Igros Moshe.

Rambam’s source

There is much discussion among later authorities attempting to identify the source in Chazal whence the Rambam inferred this prohibition. Among the acharonim, we find several suggestions for the Rambam’s ruling, including mention of some passages of Gemara. Let us examine these sources.

The first instance cited is based on a Mishnah that prohibits many types of financial dealings with an idolater on the days near a pagan holiday, out of concern that he will thank his deity for the business. If this happens, the Jew has “caused” the pagan to worship idols. Bear in mind that being a “light unto the nations” precludes causing someone else to violate his commandment.

The conclusion of this Mishnah states, “When an idolater makes a celebration in honor of his son, it is prohibited to deal only with that man on that day (Avodah Zarah 8a). This conclusion is cited by the halachic authorities (Rambam, Hilchos Avodas Kochavim 9:5; Shulchan Aruch, Yoreh Deah 148:7).

The Gemara adds the following to the discussion: “Rabbi Yishmael said: Jews living in chutz la’aretz are idol worshippers who think that they are acting properly. Why is this? An idolater makes a party to celebrate a family event and invites all the Jews in his town to attend – even if they eat their own food and drink their own beverages and their own waiter serves them, the Torah treats it as if they ate from the offerings of idols.” This passage is also cited by the halachic authorities (Rambam, Hilchos Avodas Kochavim 9:15; Shulchan Aruch, Yoreh Deah 152:1).

At the end of his censure, Rabbi Yishmael quotes the Torah as the source for his ruling: And he calls to you and you eat from his slaughter (Shemos 34:15). The halachic authorities disagree whether this quote demonstrates that this prohibition is min haTorah (Taz, Yoreh Deah 152:1) or only rabbinic (Nekudos Hakesef ad locum).

A potential difference in halacha resulting from this dispute is whether one may attend the event if missing it might antagonize the host (mipnei eivah). The rishonim note that, despite the fact that the Mishnah, quoted above, prohibits dealing with a non-Jew near his holiday, this prohibition does not apply in our day since the non-Jews among whom we live do not worship idols (Rishonim to Avodah Zarah; Tur, Yoreh Deah 148). In addition, even in a situation in which the Mishnah’s concerns are applicable, it is permitted when there are concerns of eivah (Tur, Yoreh Deah 148). The Derisha conjectures whether the prohibition against attending a party applies in a situation of eivah (Derisha, Yoreh Deah 152:1). As we will soon see, Rav Moshe Feinstein ruled leniently in this last issue.

Achashveirosh’s party

A different source cited as basis of the Rambam’s ruling is a passage of Gemara which states that the reason why the Jews in the era of Haman deserved to be destroyed (before they did the teshuvah brought about by Mordechai and Esther) was because they enjoyed the party thrown by Achashveirosh (Megillah 12a).

Several later authorities question whether these sources are indeed the origins of the Rambam’s prohibition (cf. Lechem Mishneh; Mirkeves Hamishneh; Aruch Hashulchan; Tzafnas Panei’ach). However, whether or not we know the source of the Rambam’s ruling, all authorities accept it to be binding.

How did the Rambam ascertain that this prohibition exists only when a majority of the people at the meal are not Jewish? The following passage of Gemara is quoted as a possible source: Shmuel, the great amora, and Avleit, a non-Jewish friend of his who is mentioned frequently by Chazal (Shabbos 129a, 156b; Avodah Zarah 30a; Yerushalmi, Shabbos 3:3 and Beitzah 2:5; Midrash Lekach Tov, Parshas Shoftim), were eating a meal together when they were brought some yayin mevushal, wine that had been cooked. Avleit, who was familiar with his friend’s Jewish customs, adjusted himself so that he would not touch the wine and prohibit it for Shmuel. Shmuel then explained to Avleit that the prohibition against using wine handled by a non-Jew does not apply to yayin mevushal. The question raised by some authorities is, how could Shmuel have been enjoying a repast together with Avleit when it is prohibited to eat a meal or drink wine at a non-Jew’s house? The Lechem Mishneh answers that since only Shmuel and Avleit were eating, there was no non-Jewish majority at the meal and, therefore, it was permitted (Avodah Zarah 30a).

However, this argument is weak for a few reasons, as noted by several later authorities. For one matter, there is nothing to indicate that Shmuel and Avleit were at a non-Jew’s venue? Furthermore, is two people eating together considered a party (Aruch Hashulchan)? We would usually assume that a “party” involves a large number of people — although from Esther’s party, mentioned in the Purim story, we can derive that three is not only company but also a party.

In this context, Rav Moshe Feinstein was asked the following question: May a yeshiva conduct a parlor meeting in the home of a non-Jew? Rav Moshe prohibits this although he permits attending a personal celebration of a non-Jew conducted in a non-Jewish venue where it is difficult to provide a good excuse for one’s absence. Rav Moshe permits this so as not to antagonize the non-Jew. Since this is why one may attend, Rav Moshe permits drinking kosher beverages, and presumably would also permit eating kosher food. However, this does not permit conducting a parlor meeting in a non-Jew’s home, since Jews are choosing to conduct this celebration there (Shu’t Igros Moshe, Yoreh Deah 2:117).

Client’s celebration

At this point let us examine one of our opening questions: “ A non-Jewish client is marrying off his daughter and expects his business associates to attend the reception. Knowing him, he expects me to spend a considerable amount of time there. Is this permitted, and, while there, may I eat or drink something that is kosher?”

According to Rav Moshe Feinstein, I may attend the wedding and eat and drink kosher food while there if my absence might antagonize the client.

Company picnics and parties

May I attend the company end-of-year parties and outings?

The reasons why it might be permitted to attend these functions include offending people and loss of livelihood. It would seem to be permitted if you do not eat or drink there with everyone else. A talmid chacham I know went to the company’s annual picnic and spent his time while there on the ball fields. The other employees assumed that he was a baseball enthusiast, while his family was surprised to discover that he owned sneakers and a baseball glove!

Mostly Jews

Here is another heter that sometimes applies: Because the Rambam wrote, “If most of the assemblage is Jewish,” the Pri Chadash permits this when there are more Jewish attendees than non-Jews.

Conclusion

We are meant to be “a light onto the nations,” which charges us with the responsibility to act in a manner that we create a kiddush Hashem. However, Chazal clearly felt that there is a difference between acting as a role model while behaving according to Hashem’s wishes, and social interactions, which can lead to undesirable outcomes.

Question #1: Colonche and cladodes

I admit not knowing a colonche from a cladode, but is either of them kosher?

Question #2: Is it a pear or a fig?

What is the difference between cactus pears, Indian figs, and sabras?

Question #3: Bal tashchis

Someone has an Opuntia ficus-indica growing in his yard, which constantly sheds leaves. Whenever a leaf lands, it begins to grow roots and a new shrub begins growing. Is it bal tashchis for him to destroy the new plant, since it is a fruit-producing tree?

Introduction

This article is about the sabra, the most commonly cultivated cactus, and a fascinating and highly beneficial pear-shaped fruit, with some very interesting halachic ramifications. Its scientific name, Opuntia ficus-indica, includes the genus Opuntia, andis based on the ancient Greek city of Opus, where an edible plant created new shrubs by growing roots, even from a fallen leaf, one of the many interesting features of the sabra that has halachic ramifications. The name of the species, ficus-indica,means “Indian fig.” We will find out why the sabra, which we identify with Israel and Israelis, is called an “Indian” fig.

The origin of the word “sabra” is Arabic, where the word simply means a “cactus,” although it also translates as “patience.” Since Arabic originated from Hebrew, the origin of this word indeed has a Hebrew shoresh, סבל, which means “being patient.” Indeed, notwithstanding the many uses and health benefits that the sabra provides, it requires a good deal of patience to consume it, since the fruit, the flat, paddle-looking “branch” called a cladode, and the “trunk,” are all covered with small thorns and prickles (ouch!). The entire plant demonstrates incredible nifla’os haBorei; Hashem gave this shrub incredible tools for surviving in the unforgiving, dry desert.

Sabras are cultivated as a healthy food and fodder crop that needs little water and grows well in harsh conditions, particularly in places where other crops do not grow. As we will soon see, it is a plant that has a wide variety of commercial uses.

Native American

Most people do not realize that the sabra has American origins. Along with the bell pepper, cocoa, tomato, potato, corn (maize), soybean and innumerable other American goodies, this Mexican and Central American native was brought by the Spaniards to the Old World. Indeed, both the flag and the coat of arms of Mexico portray the sabra cactus.

The sabra’s western hemisphere origins explain why it is called an “Indian fig.” Remember, Columbus was looking for a route to India. This error is reflected in several misnomers, including one way of referring to Native Americans, the island group called “the West Indies,” and scientifically naming this fruit ficus-indica, which is what the sabra fruit is called in many languages.

Dessert in the Desert

The sabra is a very useful fruit and plant. Both the sabra fruit and its cladodes (branches) are edible, providing welcome nutrients in the desert. In Mexico, the cladodes are eaten as a salad green. In arid parts of Brazil, Opuntia ficus-indica is grown predominantly as forage for the country’s huge cattle herds. In Peru, it is grown predominantly as feed for the carmine beetle – a topic I will discuss shortly. In Morocco, sabras are processed extensively to create very expensive cosmetic oil. And in pre-1948 Eretz Yisrael, sabras were grown primarily to be a border between properties or to keep livestock from wandering.

Since the fruit does not ripen after it is harvested and spoils fairly quickly after picking, the Aztecs, the Mayas and many later producers used it in innumerable food products that are less perishable, such as sauces, juices, jams, candies, vinegar, flour, starches, pickled products, various healthy additives, and even a variety of pareve “cheese.” In addition, since there are several different colors of edible cactus fruit, they can be used as a very healthy food colorant for products like yogurts.

Colonche

In Mexico, sabras are fermented into colonche, a mildly alcoholic, red beverage, whereas in Italy they are processed somewhat differently into a liqueur called ficodi. (Please note that the liqueur called “Sabra” is made of citrus fruit and derives its name from Israelis, not the fruit.)

Colonche and cladodes

At this point, we have enough background to address our opening question: “I admit not knowing a colonche from a cladode, but is either of them kosher?” Who or what are colonche and cladode? Are they kosher?

By now, we know that colonche is an alcoholic beverage made by fermenting sabra fruit, whereas cladode is the name for the “branch” of the tree, which looks more like a paddle than a branch. We also know that there are two alcoholic beverages fermented from the sabra, and we can ask whether they are kosher. For that matter, we can ask about all the various other processed foods that are made from sabras: sauces, juices, jams, candies, vinegar, flour, starches, pickled products, food colorants and pareve “cheese.”

The answer is that all these products might present kashrus issues and would require a hechsher, although they all can be produced with a proper hechsher, should a manufacturer be interested. So, for someone interested in setting up his son-in-law in a new business with an original market, an idea would be to manufacture genuine Mexican cuisine, using the sabra plant as its base. I even have a few suggestions for brand names and products: Prickly’s Fig Liqueur, Maya Mia, and Aztec Araque.

Medicinal, therapeutic and cosmetic uses

The sabra’s medicinal properties were discovered in antiquity, including its value as an anti-inflammatory, diuretic and antispasmodic agent. It is rich in vitamins, amino acids, fiber, pectin, flavonoids and antioxidants. The vitamin E content of prickly pear oil is the highest among all cosmetic oils. The sabra fruit is also high in vitamin C and was often packed onto ships to prevent scurvy. Medical research continues to this day, including, for example, recent clinical evidence that the sabra reduces human cholesterol levels.

The tiny seeds of the sabra have superb cosmetic value. Indeed, one of the countries that thrive on the growth of the sabra is Morocco, where the cactus arrived south of the Strait of Gibraltar as early as the sixteenth century, shortly after arriving in Spain. The Moroccans, who are almost exclusively Muslim and therefore officially do not consume alcohol, could not market the liquor produced from Opuntia ficus-indica, but developed a vast international market of natural cosmetics based on the seeds of this fruit. So, your son-in-law’s business can now expand its original offerings of authentic Mexican cuisine washed down with Maya Mia to include Israeli-grown natural vitamin C, natural medical remedies and expensive cosmetics.

Good fences make good neighbors

In some countries, Opuntia ficus-indica was used as a border-marker between neighbors. As mentioned above, left unhindered, its dropped leaves form new plants, each with thorns and spikes, thus becoming quite a nuisance to cross – far more efficient than the famous stone walls of rural New England.

Carmine red

In its natural habitat, the cactus provides a home to scale insects called Dactylopius coccus and Dactylopius opuntiae, which feed on the cladodes. These small creatures have proved invaluable as the source of a bright red dye called cochineal. A cousin of this beetle, native to Egypt, has been known since the time of Tanach for its use as a crimson dye. Indeed, the word carmil appears in Divrei Hayamim as the source of the tola’as shani red dye used in the Mishkan and for the garments of the kohanim. According to Radak, this insect is the source of the dye. This engendered much controversy in the era of the rishonim, when many held that the source of a dye in the Mishkan cannot be non-kosher (Ra’avad, Hilchos Klei Hamikdash 8:13; Rabbeinu Bachyei, Shemos 25:3).

As mentioned above, sabra is grown in Preu primarily as feed for the carmine beetle. The western cochineal provides a dye eight times stronger than its old-world version, and this pigment was worth more than its weight in gold, until the advent of artificial dyes. The use of carmine red preceded the European invasions of America by centuries, as both the Aztecs and Mayas farmed the insect and its dye. When the Spanish imported the dye to Europe, they kept its source hidden for many years, thereby assuring themselves of great profits. In 1620, King Philip III of Spain stated, “One of the most valuable fruits grown in our Western Indies is the cactus pear; it produces value equal to gold and silver.” Certainly so, since it is difficult to grow either gold or silver, minimizing their profits to a single use.

The redcoats are coming!

There is a fascinating historic twist to the cochineal saga. The British, whose uniforms were bright red (presumably to make them highly recognizable on the battlefield), felt that they were overpaying Spain for the gorgeous new-world crimson dye. But, even after their spies discovered the source for the carmine red that they were purchasing, they could not develop an industry, since cacti will not grow in wet, chilly England, and British colonies in the eastern and northeastern parts of North America were also too cold for Opuntia ficus-indica. Even Georgia, named for the British monarchs, was too cold for this undertaking. So, the British looked at the vast holdings of their empire and decided that the huge deserts in Australia would service the British armed forces by providing a ready supply of red dye, once Opuntia ficus-indica was planted and Dactylopius opuntiae imported.

Invasion!

Shortly after planting Opuntia ficus-indica all over Australia, they discovered that not every invasion is advantageous, even for the conquering party. Much of Australia’s climate is perfect for the cactus, and there are no natural enemies to hinder its advance. Opuntia formed dense infestations that hindered livestock’s access to feed. Opuntia thorns injured animals, damaged fleece and hides, and interfered with the transportation of sheep to the shearing. The cactus was also wiping out native flora, causing a mammoth economic and environmental catastrophe. The redcoats were not so concerned about the environmental impact of their actions, but the potential destruction of a different invasive species, sheep, was a major concern that required immediate addressing, since this was the main product that the colony was intended to bring to the royal crown.

The solution is interesting. They discovered that one desert environment which had been detrimental to Opuntia ficus-indica and its red-coated inhabitants was in southern Argentina. They worked to discover what made the arid parts of Argentina so uninhabitable to sabras, eventually discovering a moth, Cactoblastis cactorum, (note the cognates to the word “cactus”) that loves cactus and destroys it. Thus, they were able to save the Australian continent from their own invasion by introducing another foreign species. Fortunately for the Mexicans, Peruvians, Brazilians, Moroccans and dwellers of Eretz Yisrael, no one attempted to introduce Cactoblastis cactorum to their deserts, which could have ruined their liquor, salad greens, dye, forage, cosmetics, boundaries, and your son-in-law’s potential business, before it even got off the ground.

Scaling down

It is curious to note that in Morocco, the cochineal scale is an unwanted pest that destroys the cosmetic value of the sabra, whereas in Peru the cactus fruit is cultivated exclusively for the dye created by this scale. Cochineal use is expanding, today, as a food and lipstick colorant, with Peru its biggest exporter, as people are increasingly concerned about the safety of artificial food additives.

A pear or a fig?

At this point, we can discuss our next introductory question:

What is the difference between cactus pears, Indian figs and sabras?

Sabra fruit is called by several other names, including “prickly pear,” “cactus pear,” “Indian fig,” “Barbary fig” and “Adam’s fig.” It is called “Barbary fig” because, after the Spaniards planted it in Spain, it began spontaneously growing in arid climates of Italy and North Africa, presumably as a result of bird droppings after they ate the sabra fruit. Thus, in many places, it became associated with the coastal areas of northwestern Africa, called the Barbary Coast.

In other words, the answer to the question, “What is the difference between cactus pears, Indian figs, Barbary figs and sabras?” is how you spell it.

At this point, let us address some halachic curiosities germane to the sabra:

Orlah

“If Opuntia ficus-indica is planted as a boundary marker, may one benefit from the fruit that grows during the first three years of the cactus’s growth?”

The Mishnah (Orlah 1:1) rules that fruits growing on a tree planted as a barrier or hedge, or for lumber or firewood, are not orlah. The reason is that the Torah states that the mitzvah of orlah applies only “when you plant a tree for food”(Vayikra 19:23), and these trees are not meant for food. The Yerushalmi (Orlah 1:1) contends that this rule applies only when it is obvious that they are not planted for their fruit; for example, they are planted closer together than what is beneficial for fruit growth, or the trees are pruned in a way that their lumber will develop at the expense of the fruit. Most poskim rule like this Yerushalmi (Rosh, Hilchos Orlah 1:2; Tur Yoreh Deah 294; Shulchan Aruch, Yoreh Deah 294:23).

Thus, whether sabra fruit is governed by the laws of orlah may depend on where the fruit is grown, but for an unusual reason. Those planted by the native population in Eretz Yisrael, where they were planted as boundary markers and natural fencing to keep the sheep and goats from wandering, are exempt from orlah. Those grown in Mexico for their fruit or for liquor produced from the fruit would be prohibited as orlah. And I’ll let you ask your rav whether those grown in Brazil or Peru are exempt from orlah.

Bal tashchis

At this point, let us address the last of our opening questions. As I was writing this article, a neighbor actually asked me this shaylah: He has an Opuntia ficus-indica growing in his yard, which constantly sheds leaves. Whenever a leaf lands, it begins to grow roots and a new shrub begins growing. Is it bal tashchis for him to destroy the new plant, since it is a fruit-producing tree?

It appears that there is no halachic concern to do so, since the new plant is not yet a tree, and all he is doing is preventing the tree from growing. Should the tree have begun to grow, the question becomes more serious. As I wrote in a different article, the rules governing when it is permitted to destroy a fruit-producing tree, such as a sabra, when there is benefit in doing so are complicated and controversial (Bava Kama 91b-92a; Rambam, Hilchos Melachim 6:8-9).

Tuna fish or fig?

We are all familiar with the word “tuna” as the name of a fish whose flesh is used for brown-bag lunches. The word “tuna” also carries another meaning; in Mexico, it is the name for the fruit that the Arabs call “sabra.”

Strange Coincidence

We know that there are no coincidences and that everything is part of Hashem’s plan. With that introduction, I will share with you what can be described as, perhaps, just a curiosity, or… perhaps, much more. The pasuk in Divrei Hayamim (II 3:14) describes the peroches as woven from techeiles, argaman, karmil, and butz, which is linen. This is the same peroches that the Torah describes in parshas Vayakheil (Shemos 36:35) and in parshas Terumah (Shemos 26:31) as made of techeiles, argaman, tola’as shani, and linen (Shemos 26:31). Similarly, when describing the artisans sent by King Chiram of Tzur to help Shelomoh Hamelech build the Beis Hamikdash, Divrei Hayamim (II 2:13) mentions karmil as one of the materials used in construction of the Mishkan, and omits tola’as shani. Obviously, karmil, cognate to the English words crimson and carmine, is another way of describing tola’as shani (see Radak and Ralbag ad loc.). The Radak (Divrei Hayamim II 2:6) and the Rambam explain tola’as shani to mean “wool dyed with an insect” (Hilchos Klei Hamikdash 8:13; although Rabbeinu Bachyei, Shemos 25:3, disagrees with them). Now, bear in mind that the cochineal scale insect, which is similar to the insect described by the Radak, was originally New World, but feeds, primarily, on a shrub that is now widely associated with Eretz Yisrael. How intriguing that the people of Israel are associated with a term that just “coincidentally” alludes to a dye used in the Beis Hamikdash.

This year, Rosh Chodesh Sivan falls on Sunday, and therefore the haftarah for Shabbos parshas Bamidbar is mochor chodesh. However, the usual haftarah for parshas Bamidbar begins with the pasuk that serves as the basis for the prohibition to count Jews. Since the United States is attempting to conduct a census this year, as required in the Constitution, I present the following halacha discussion:

Question #1: Counting Sheep

Why would someone count sheep when he is trying to stay awake?

Question #2: Counting from a List

Is it permitted to count Jews by counting their names on a list?

Question #3: Ki Sissa or Hoshea?

The Gemara bases the prohibition to count the Jewish people from the opening words of the “official” haftarah for parshas Bamidbar: And the number of the children of Israel shall be like the sand of the sea that cannot be measured and cannot be counted (Hoshea 2:1). Why does the Gemara attribute the prohibition to a less obvious source in Hoshea, when there appears to be an obvious Torah source for this prohibition, in the beginning of Parshas Ki Sissa?

Answer: Analyzing the Sources in Chazal:

The Mishnah (Yoma 22a) describes that in order to determine which kohen would be awarded the mitzvah of removing ashes from the mizbei’ach, the kohanim extended their fingers, which were then counted. The person in charge picked a number much greater than the assembled kohanim, and then counted fingers until they reached the number. The kohen on whom the number landed performed the mitzvah (Rashi ad loc.).

The Gemara asks why they didn’t simply count the kohanim themselves, to which it answers that it is prohibited to count Jews (Yoma 22b). Counting fingers is permitted; counting people is not (Rambam, Hilchos Temidim 4:4). We are aware of one common application of this mitzvah: when counting people for a minyan, one counts words of a ten-word pasuk, rather than counting the people directly (Sefer Ha’itim #174; Kitzur Shulchan Aruch 15:3).

Here is another application: to determine how many places one needs to set at a table, one should not count heads, but one may count sets of legs (Shu’t Torah Lishmah #386).

The Gemara quotes three Biblical sources for this prohibition:

1. When the nation of Ammon threatened the Jewish community of Yaveish-Gilad, Shaul gathered a large Jewish army and counted them in an indirect manner (Shmuel I 11:8). According to one opinion in the Gemara, Shaul counted the members of his army by having each throw a piece of broken pottery into a pile. Thus, we see that even to fulfill a mitzvah, one may count Jews only in an indirect manner.

2. Before attacking Ameleik, Shaul gathered the Jewish people and had each person take a sheep from Shaul’s herds. By counting the sheep, he knew how many soldiers he had (Shmuel I 15:4, see Rashi). Again, we see that he used an indirect method to count them.

3. And the number of the children of Israel shall be like the sand of the sea that cannot be measured and cannot be counted (Hoshea 2:1). Taking the verse not only as a blessing, but as a commandment, the Gemara derives a prohibition against counting the Jewish people.

Isn’t the Torah a Clearer Source?

The obvious question is — why does the Gemara not quote the following pasuk in the Torah as a source for the prohibition?

When you will take the headcount of the children of Israel according to their numbers, each man should give atonement for his life to Hashem when counting them so that there is no plague as a result of the counting. This is what whoever is counted should give: a half shekel (Shemos 30:12 -13).

This pasuk certainly implies that the only way one may count Jews is indirectly, by having each one donate half a shekel and then counting the coins. This seems to be the source of how Shaul knew that he should count the Jews the way he did. It is indeed odd that the Gemara quotes the incidents of Shaul as the source for the prohibition, rather than Shaul’s source — the Torah itself!

Before answering this question, I want to analyze a different point that we see in the pasuk. The Torah says: each man should give atonement for his life to Hashem when counting them, so that there is no plague as a result of the counting. In the discussion of no other mitzvah does the Torah say, “fulfill this commandment so that no plague results.” Why suddenly does the Torah say this in regard to this mitzvah?

Rabbeinu Bachya (ad locum) explains that when we count individuals, it causes the heavenly tribunal to note all his deeds, and this may result in his being punished for his sins, which otherwise would not be punished now.

Others explain the concern in terms of ayin hora. The Abarbanel, for example, explains that when counting people by head, the counting causes ayin hora and therefore illness enters their bodies hrough their eyes and mouths, whereas counting fingers does not cause the ayin hora to enter them. I leave to the reader to decide whether he means in a physical way or a metaphysical one.

Why the Prophets?

So, indeed, if we see from the Torah, itself, that counting Jews is prohibited and potentially very harmful, why did the Gemara base itself on verses of the Prophets?

The commentaries present several approaches to answer this question. Here is a sample of some answers:

(1) The Gemara is proving that one may not count Jews even for the purpose of performing a mitzvah, something that the Torah did not expressly say (Sfas Emes to Yoma ad loc.). However, from the incidents of Shaul and the verse in Hoshea, it is clear that one may not count Jews directly, even for the sake of a mitzvah.

(2) The Gemara needs to prove that we may not count even a small group of Jews, whereas the pasuk in Ki Sissa may be prohibiting only counting the entire people (Mizrachi; Sfas Emes).

(3) The verse in Ki Sissa could mean that one may count the Jews in a normal census, but that afterward, they all must provide half a shekel as an atonement, to make sure that no one suffers (Makom Shmuel, quoted by Shu’t Tzitz Eliezer 7:3). This last approach suggests that the verse When you will take the headcount of the children of Israel according to their numbers be explained in the following manner: When you take a regular census of the children of Israel, each man should give atonement for his life to Hashem when counting them – after you conduct your census, each person should provide a half-shekel to make sure no harm results. Indeed, the census could cause harm, but that does not necessarily mean that the Torah prohibited it. However, the stories of Shaul and the verse in Hoshea prove that the Torah prohibited counting Jews directly, since Shaul counted the people by counting sheep, rather than conducting a census and having them all donate half a shekel as atonement.

(4) One can interpret the verse in Ki Sissa to mean that the generation of the Desert, who had worshipped the eigel hazahav, the Golden Calf, was at risk and that therefore counting them might cause a plague (Maharsha to Yoma ad loc.; see also Ohr Hachayim to Shemos 30:2). However, one cannot prove from Ki Sissa that there is an inherent prohibition or risk in counting Jews when they have not violated such a grievous sin. However, the stories of Shaul or the verse in Hoshea prove that one may not count Jews even when they did not violate serious prohibitions.

Thus, we find several answers to explain why the Gemara did not consider the Torah source as adequate proof to prohibit counting the kohanim in the Beis Hamikdash, but, instead, rallied proof from later sources. As we will see shortly, there are actual distinctions in practical halacha that result from these diverse explanations. But first, a different question:

Counting from a List

For the purposes of fulfilling a mitzvah, may one count Jews by listing their names, and then count their names? Is this considered counting people indirectly, since one is counting names and not people, or is this considered counting the people themselves?

Advertising Campaigns to Help the Needy

The idea of having creative advertising campaigns in order to generate tzedakah funds did not originate with Oorah or Kupat Ha’ir. About 200 years ago, Rav Yisrael of Shklov, a major disciple of the Vilna Gaon and an author of several scholarly Torah works (including Taklin Chadtin on Yerushalmi Shekalim and Pe’as Hashulchan on the agricultural mitzvos), was organizing a fundraising campaign for the Yishuv in Eretz Yisrael in which he wanted to link donors to individual beneficiaries by listing the needy of Eretz Yisrael by name. Rav Yisrael held that this did not violate the prohibition of counting Jews, since it involved an indirect count by counting names on a list, for the sake of fulfilling a mitzvah. However, the Chasam Sofer disagreed, contending that counting names on a list is considered counting people directly. Even though one is not looking at their faces when counting them, counting people from a list is considered counting the person, and not counting their finger, leg, half-shekel, lamb or pottery shard (see Koveitz Teshuvos Chasam Sofer #8; Shu’t Kesav Sofer, Yoreh Deah #106). We will see shortly that this dispute exists to this day.

The Census

Is the State of Israel permitted to conduct a census of its population? Does an individual violate the mitzvah by being a census taker, or by providing the census takers with his information?

This question was hotly debated by halachic authorities, even when the pre-state Zionist organizations began counting the Jewish population, and continued with the censuses of the State of Israel. Several reasons are provided by those who permitted taking a census, the primary one being that determining how to provide proper medical, educational, economic and safety servicing for a large population requires knowing how many people there are. These authorities accepted that this qualifies as a dvar mitzvah, and that counting by list, or via computer and machine calculation is considered indirect counting (Shu’t Mishpatei Uziel 4:2; Noam XV).

On the other hand, several prominent poskim prohibited taking the census or participating in it (Shu’t Tzitz Eliezer 7:3). On the 27^th of Iyar, 5732 (May 11, ’72), the Steipler Gaon released a letter stating the following:

In the coming days, there will be census takers counting the Jewish people. One should be careful not to answer them at all, to tell them that it is forbidden to take a census, and that there is the possibility of a Torah violation, as explained in the Gemara, Yoma 22, the Rambam in the fourth chapter of Temidim and Musafim, and the Ramban in Parshas Bamidbar. Furthermore, the Tosafos Rid in Yoma writes that it is prohibited to do so even indirectly when no mitzvah is accomplished. The Kesav Sofer explains… that it is prohibited even through writing. Furthermore, taking a census involves the possibility of danger.

At the same time, the Beis Din of the Eidah Hachareidis also issued a letter prohibiting participating in the census or answering any questions from the census takers, reiterating that they had banned this practice ten years earlier.

After publishing a responsum in which he prohibited participating in the census, the

Tzitz Eliezer (7:3) was asked whether someone calculating the numbers of people who made aliyah may count how many people there are. He answered that for the purposes of a mitzvah, one may count indirectly. However, we should note that such figures are often counted simply for curiosity or publicity, which the Tzitz Eliezer prohibits (22:13).

In a more recent responsum from Rav Vozner (Shu’t Shevet Halevi 9:35), dated Elul 24 5755 (September 19, ’95), he writes that the heter of taking a census because of divrei mitzvah applies only if the statistics are used exclusively for divrei mitzvah, something that is not followed. However, he permits the census for a different reason — because they count the entire population of Israel, not specifically Jews. Furthermore, even though the census in Israel includes a breakdown into religious groups, since thousands of those who are listed by the government as Jewish are not, Rav Vozner does not consider this as counting Jews. He adds that since no one is counted by name or family, but there is simply raw data collected, and the data does not correlate at all to the number of Jews, he has no halachic objection to participating in the census.

On the basis of Rav Vozner’s responsum, there certainly should be no objection to participating in the United States census, since this involves counting people and does not count Jews.

Conclusion

Parshas Ki Sissa, which should appear to be the Torah source for this mitzvah, begins with the words “Ki sissa es rosh bnei Yisrael.” Although the explanation of this pasuk is “When you count the members of Bnei Yisrael,” literally, the words can be translated as “When you lift up the heads of Bnei Yisrael.” The question is why did the Torah use this expression rather than say more clearly that it is defining how to count the Jewish People.

Rav Moshe Feinstein (Darash Moshe, Ki Sissa) explains as follows: When someone realizes that he did something wrong, that individual may justify what he did by saying, “I am not important. What difference does it make if I do not do what is expected of me?” Unfortunately, this type of mistaken humility can become a person’s undoing.

“Ki Sissa” – “When you lift up” counteracts this way of thinking. Every Jew is as important as the greatest of all Jews: The biggest tzaddik and the seemingly unimportant Jew both give the same half-shekel. This “lifts up” every individual – you do count, and what you do is important!

All the water in Egypt turned to blood. We also use
water as part of the process in removing blood from meat, and, therefore, this
week we will discuss:

Devorah calls me: “During our summer vacation, I
entered a butcher shop that has reliable supervision and noticed a sign on the
wall, ‘We sell washed and unwashed meat.’ This seemed very strange: Would
anyone eat unwashed meat? Besides, isn’t all meat washed as part of the
koshering process? What did the sign mean?”

Michael asked me: “Someone asked me if I have any
problem with the kashrus of frozen meat. What can possibly be wrong with
frozen meat?”

Answer: We
should be aware that, although today we usually have a steady supply of kosher
meat with all possible hiddurim, sometimes circumstances are more
difficult. This is where “washed meat” and “frozen meat” may enter the picture,
both terms referring to specific cases whose kashrus is subject to halachic
dispute.

Knowing that Devorah enjoys stories, I told her an
anecdote that illustrates what can happen when kosher choices are slim.

I was once rabbi in a community that has memorable
winters. Our city was often covered with snow by Sukkos and, in some years,
it was still snowing in May. There were several times that we could not use the
sukkah without clearing snow off the schach, something my
Yerushalmi neighbors find hard to comprehend.

One short erev Shabbos, the weather was
unusually inclement, even for our region of the country; the major interstate
highway and all secondary “state routes” were closed because of a blizzard. The
locals called this weather “whiteout” — referring not to a fluid for
correcting errors, but to the zero visibility created by the combination of
wind and snow.

Fortunately, I lived around the corner from shul
and was able to navigate my way back and forth by foot. Our house, too, was – baruch
Hashem – sufficiently stocked to get through Shabbos.

About a half-hour before Shabbos, in the midst of our
last minute preparations, the telephone rang:

“Is this Rabbi Kaganoff?” inquired an unfamiliar
female voice. I responded affirmatively, though somewhat apprehensive. People
do not call with shaylos late Friday afternoon, unless it is an
emergency. What new crisis would this call introduce? Perhaps I was lucky and
this was simply a damsel in distress inquiring about the kashrus of her cholent,
or one who had just learned that her crock pot may fail to meet proper Shabbos
standards. Hoping that the emergency was no more severe, I listened
attentively.

“Rabbi Kaganoff, I was given your phone number in case
of emergency.” I felt the first knots in my stomach. What emergency was this
when I hoped to momentarily head out to greet the Shabbos queen? Was someone,
G-d forbid, caught in the storm? I was certainly unprepared for the continuing
conversation.

“I am a dispatcher for the All-American Transport
Company,” she continued. “We have a load of kosher meat held up by the storm
that needs to be washed by 11 p.m. Saturday.” My caller, located somewhere in
the Nebraska Corn Belt, was clearly more familiar with halachos of
kosher meat than she was with the ramifications of calling a frum household
minutes before candle lighting. Although I was very curious how All-American
had located me, a potential Lone Washer in the Wilderness, the hour of the week
required expedition, not curiosity. Realizing that, under stress, one’s tone of
voice can create a kiddush Hashem or, G-d forbid, the opposite, I
politely asked if she could call me back in about 25 hours, which would still
be several hours before the meat’s deadline. I guess that she assumed that it
would take me that long to dig my car out.

Later, I determined the meat’s ultimate destination, a
place we will call Faroutof Town, information that ultimately proved
highly important.

Why was a Nebraska truck dispatcher calling to arrange
the washing of kosher meat? Before returning to our meat stalled at the side of
the highway, I need to provide some halachic background.

EXORCISING THE BLOOD

In several places, the Torah commands that we may not
eat blood, but only meat. Of course, blood is the efficient transporter of
nutrients to the muscles and permeates the animal’s flesh while it is still alive.
If so, how do we extract the prohibited blood from the permitted meat?

Chazal gave
us two methods of removing blood from meat. One is by soaking and salting the
meat, and the other is by broiling it. In practical terms, the first approach,
usually referred to simply as “kashering meat,” involves soaking the
meat for thirty minutes, shaking off the water, salting the meat thoroughly on
all sides, and then allowing the blood to drain freely for an hour. At the end
of this process, the meat is rinsed thoroughly to wash away all the blood and
salt. Indeed, Devorah is correct that the salting of all meat involves several
washings. She was correct in assuming that the sign she saw in the butcher’s
shop did not refer to these washings, but to a different washing that I will
soon explain.

BROILING MEAT

An alternative method of extracting blood from meat is
by broiling it. This is the only halachically accepted method of
removing blood from liver. In this approach, the liver is sliced or slit to
allow its blood to run out, the surface blood is rinsed off and the liver is
placed under or over a flame to broil in a way that allows the blood to drain
freely. Accepted practice is that we sprinkle a small amount of salt on the
liver immediately prior to broiling it (Rema, Yoreh Deah 73:5).

Halachically,
it is perfectly acceptable to broil any meat, rather than soak and salt it.
However, on a commercial level, customers want to purchase raw meat and,
therefore, the usual method used for kosher cuisine is soaking and salting. For
most of mankind’s history, kashering meat was performed at home, but
contemporaneously, the properly supervised butcher or other commercial facility
almost universally performs it.

Although this explains why one must kasher meat
before serving it, we still do not know why Ms. Nebraska was so concerned that
her meat be washed en route.

SEVENTY-TWO HOURS OR BUST

The Geonim enacted that meat must be salted
within seventy-two hours of its shechitah. They contended that, after
three days, blood inside the meat hardens and is no longer extractable through
soaking and salting. Should meat not be soaked and salted within 72 hours, they
ruled that only broiling successfully removes the blood. Of course, if one does
not want to eat broiled meat, this last suggestion will not satisfy one’s
culinary preferences.

Is there any way to extend the 72 hours?

The authorities discuss this question extensively.
Most contend that one may extend the time if the meat is soaked thoroughly for
a while during the 72 hours (Shulchan Aruch, Yoreh Deah 69:13, see Taz
ad loc.), although some permit this only under extenuating circumstances (Toras
Chatos, quoted by Shach 69:53). On the other hand, some authorities
rule that even a minor rinsing extends the 72 hours (Shu”t Masas Binyamin #108).
It became standard to refer to meat that was washed to extend its time by the
Yiddish expression, gegosena fleisch, hence the literal English
translation, washed meat.

Also, bear in mind that this soaking helps only when
the meat was soaked within 72 hours of its slaughter. Once 72 hours have passed
without a proper soaking, only broiling will remove the blood. If the meat was
soaked thoroughly, those who accept this heter allow a delay to kasher
the meat for another 72 hours. If one is unable to kasher it by
then, one can re-soak it again to further extend its 72 hours.

WASHING OR SOAKING?

At this point in my monologue, Devorah interrupted
with a question:

“You mentioned soaking the meat and extending its time
for three more days. But the sign called it ‘washed meat,’ not soaked meat.
There is a big difference between washing something and soaking it.”

“Yes, you are raising a significant issue. Although
most early authorities only mention ‘soaking’ meat, it became common practice
to wash the meat instead, a practice that many authorities disputed (Pischei
Teshuvah, Yoreh Deah 69:28; Darkei Teshuvah 69:231- 237). There are
also many different standards of what is called ‘washing’ the meat. Some hechsherim
permit meat that was not salted within seventy-two hours of its shechitah
by having the meat hosed down before this time elapsed. Some spray a light mist
over the meat and assume that the meat is ‘washed,’ or simply take a wet rag
and wipe down the outside of the meat.”

“Why would anyone do that?” inquired Devorah.

“In general, people like to save work and water, and
soaking properly a whole side of beef is difficult and uses a lot of water. In
addition, if one hoses meat while it is on a truck, the water may damage the
truck, whereas it is even more work to remove the meat from the truck. But if
one does not hose the meat properly, most authorities prohibit it.”

At this point, we can understand why Ms. Nebraska was
concerned about the washing of the meat. She knew that if the meat went 72
hours without being hosed, the rabbis would reject the delivery as non-kosher.
During my brief conversation, I asked her if she knew the last time the meat
was washed. “It was last washed 11 p.m. Wednesday and needs re-washing by 11
p.m. Saturday,” she dutifully notified me.

At this point, I noted to Devorah that we now had
enough information to address her question. “The sign in the butcher shop
stating that they sell washed meat means that they sell meat that was not kashered
within 72 hours of slaughter, but was washed sometime before the 72 hours ran
out. It does not tell us how they washed the meat, but it is safe to assume
that they did not submerge it in water. If they were following a higher
standard, they hosed the meat on all sides until it was soaking wet. If they
followed a different standard, hopefully, they still did whatever their rav
ruled. Since you told me that it was a reliable hechsher, presumably
they hosed the meat thoroughly.”

I then asked Devorah if she wanted to hear the rest of
the blizzard story. As I suspected, she did – and so I return to our snowed-in
town.

MOTZA’EI SHABBOS

By Motza’ei Shabbos the entire region was in
the grip of a record-breaking blizzard. Walking the half block home from
shul had been highly treacherous. There was no way in the world I was going
anywhere that night, nor anyone else I could imagine.

At the very moment I had told the dispatcher I could
be reached, the telephone rang. A different, unfamiliar voice identified itself
as the driver of the stuck truck. His vehicle was exactly where it had been
Friday afternoon, stranded not far from the main highway.

The driver told me the already-familiar story about
his load of kosher meat, and his instructions to have the meat washed before 11
p.m., if his trip was delayed.

There was little I could do for either the driver or
the meat, a fact I found frustrating. Out of desperation, I called my most
trusted mashgiach, Yaakov, who lived a little closer to the scene of the
non-action. Yaakov was an excellent employee, always eager to work whenever
there was a job opportunity.  I explained the situation to him.

“Rabbi,” responded Yaakov, “I was just out in this
storm. Not this time. Sorry.”

I was disappointed. Not that I blamed Yaakov in the
slightest. It was sheer insanity to go anywhere in this storm. In fact, I was a
bit surprised at myself for taking the matter so seriously. After all, it was
only a load of meat.

With no good news to tell the trucker, I was not
exactly enthusiastic about calling him back. I hate to be the bearer of bad
tidings. So I procrastinated, rather than tell the trucker he should sit back
and wait for his kosher meat to expire.

An hour later, the phone rang again, with Mr. Trucker on
the line. “Rabbi,” he told me, with obvious excitement in his voice, “I’ve
solved the problem.” I was highly curious to find out where he located an
Orthodox Jew in the middle of a blizzard in the middle of nowhere. For a
fleeting moment, I envisioned a frum Jew stranded nearby and shuddered
at the type of Shabbos he must have experienced.

The trucker’s continuing conversation brought me back
to the reality of the unwashed meat.

“Well, Rabbi,” he exclaimed with the exhilaration
Columbus’s lookout must have felt upon spotting land, “I discovered that I was
stranded a few thousand feet from a fire station. And now, all the meat has
been properly hosed. Listen to this letter.” The trucker proceeded to read me
the documentation of his successful find:

“On Saturday evening, the 22^nd of January,
at exactly 9:25 pm, I personally oversaw the successful washing of a kosher
load of meat loaded on trailer 186CX and tractor 2008PR. To this declaration, I
do solemnly lend my signature and seal,

“James P. O’Donald, Fire Chief, Lincoln Fire Station
#2.”

Probably noticing my momentary hesitation, the trucker
continues, “Rabbi, do I need to have this letter notarized?”

“No, I am sure that won’t be necessary,” I replied. I
was not about to tell the driver that halachah requires that a Torah
observant Jew supervise the washing of the meat. On the contrary, I
complimented him on his diligence and his tremendous sense of responsibility.

At this point, I had a bit of halachic
responsibility on my hands. Since I knew the meat’s ultimate destination, I
needed to inform the rav in Faroutof Townof the situation.

I was able to reach the Faroutofer Rav, Rabbi
Oncelearned. “I just want to notify you that your city will shortly receive a
load of meat that was washed under the supervision of the ‘Fire Station K.’”
Rabbi Oncelearned had never heard of the “Fire Station K” supervision and asked
if I was familiar with this hechsher. I told him the whole story and we
had a good laugh. I felt good that I had supplied Rabbi Oncelearned with
accurate information and prepared him for the meat’s arrival. After all, it
would be his learned decision that would rule once the meat arrived in town.

WHERE’S THE BEEF?

Of course, Rabbi Oncelearned now had his own
predicament: Would he have to reject the town’s entire order of kosher meat,
incurring the wrath of hungry customers and undersupplied butchers? Or could he
figure out a legitimate way to permit the meat?

There was, indeed, a halachic basis to permit
the meat under the extenuating circumstances because of a different heter,
but not because of the Lincoln fire station hose.

FROZEN MEAT

It is common that meat is slaughtered quite a distance
from where it is consumed – such as slaughtering it in South America and
shipping it frozen to Israel. Today, all mehadrin supervisions arrange
that meat shipped this way is kosher butchered (called trabering)and
kashered before it is frozen and shipped. This is a tremendous boon to
proper kashrus, but it is a relatively recent innovation. Initially, these
meats were shipped frozen and, upon reaching their destination several weeks
later, they were thawed, trabered and kashered. Thus, the
question developed whether this meat was fit to eat, since it arrived weeks
after its slaughter.

In truth, earlier halachic authorities had
already debated whether meat frozen for 72 hours can still be kashered by
salting, some contending that this meat can only be broiled (Minchas Yaakov,
Responsum #14 at end, quoted by Be’er Heiteiv 69:8; Pri Megadim,
Sifsei Daas 69:60), whereas others ruled that deep freezing prevents the
blood from hardening (Aruch Hashulchan, Yoreh Deah 69:79; Yad Yehudah
69:59; Shu”t Yabia Omer 2:YD:4 and Shu”t Yechaveh Daas 6:46).
Some frowned on making such arrangements lechatchilah, but ruled that kashering
frozen meat is acceptable under extenuating circumstances (Shu”t Igros
Moshe, Yoreh Deah 1:27; 2:21).

Rabbi Oncelearned consulted with a posek who
reasoned that since the truck had been stuck in a major blizzard,
unquestionably the meat had been frozen solid, and that they could rely on this
to kasher the meat after it thawed out. Thus, the firemen’s hose was
used for naught, but I never told them. Please help me keep it a secret.

Someone meticulous about kashrus plans trips in
advance to know what hechsherim and kashrus situations he may
encounter. When in doubt what to do, one’s rav is available for guidance
how to handle the situation.

What does one look for when purchasing a pair of tefillin? In my earlier article, I presented some of the basics of tefillin manufacture. The four parshios in which the Torah mentions mitzvas tefillin — “Kadeish li kol bechor” and “Vehayah ki yeviacha” in parshas Bo, “Shema” in parshas Va’eschanan, and “Vehayah im shamo’a” in parshas Eikev — are handwritten by a sofer. Each parsha of the tefillin shel rosh is written on a separate piece of parchment and placed in a separate compartment, whereas those of the shel yad are written on one parchment and placed in a single large compartment.

As explained in last week’s article, the
batim consist of three parts: (a) the box part, called the ketzitzah,
in which the parshios are placed, (b) the titura, the base on
which the ketzitzah rests, and (c) the ma’avarta, through which
the straps (retzuos) are inserted. The width of both the ketzitzah
and the titura must be exactly the same as the corresponding length so
that they are perfectly square, and there should be no nicks, dents, or bulges
that ruin their perfect squareness or the evenness of their sides. Someone
concerned about the mitzvah should therefore purchase batim made from gasos,
which means the hide of a mature animal. Gasos batim last much
longer, have many hiddurim in halacha, and can be repaired if
they become damaged.

We also discussed two halachic
disputes regarding the manufacture of the shel rosh. One shaylah
concerned gluing the compartments of the shel rosh together, and another
concerned whether the shin on the outside must be pulled out manually before
it is molded.

As explained last week, most stages of tefillin
production, from tanning to painting and sewing, must be performed “lishmah.”
Therefore, each stage is begun by an observant Jew who declares that his work
is for the sake of kedushas tefillin.

In last week’s article, I discussed the
manufacturing of the batim. Several steps of tefillin manufacture
were not described last week, including painting, making the retzuos,
and placing the parshios in the bayis and sealing it. We also did
not discuss at all the writing of the parshios, which is where we will
begin this week’s article.

Writing the parshios

Before starting to write, the sofer
must state that he is writing these parshios for the sake of the mitzvah
of tefillin (see Rosh, Hilchos Sefer Torah Ch. 2; Tur Orach
Chaim Chapter 32). In addition, every time he writes any of the names of
Hashem, he must first state that he is writing the name for kedushas Hashem.
If he did not make these statements verbally, it is questionable whether the tefillin
are kosher (see Rama, Orach Chaim 32:19; Rabbi Akiva Eiger
comments on Shulchan Aruch 32:8).

The parshios must be written with
meticulous care, since an error that affects the kashrus of a single
letter invalidates the entire tefillin (Menachos 28a). Thus, if
only one letter is missing or written incorrectly, the tefillin are posul,
and the person who wears these tefillin has not fulfilled the
mitzvah (Shulchan Aruch Orach Chaim 32:23). Furthermore, all the brachos
he recites on the tefillin are in vain.

Here are some examples of mistakes that
can occur while writing tefillin. If two letters touch one another, the tefillin
are posul (Menachos 34a; Shulchan Aruch Orach Chaim
32:4).

The same thing is true if the sofer
intended to write one letter and, instead, wrote something that looks like a
different letter or does not meet the halachic requirements of how the
required letter must be written. For example, if a sofer intended to
write the letter “zayin” and made it so long that it could be read as a
“nun sofis,” the tefillin are invalid. Similarly, if the sofer
intended to write the letter “reish,” which is supposed to have a
rounded upper right corner, and instead wrote it with a square corner, the tefillin
are invalid.

Sometimes the letters of the parshios
may seem perfect, and yet the tefillin are absolutely posul. For
example, the letters written in tefillin (as well as sifrei Torah and
mezuzos) must be written or formed directly. A letter cannot be formed
indirectly by scratching off ink around the letter, until only the letter
remains. This halacha is called “chok tochos,” which literally
means, “hollowing out the inside.”

(The origin of this expression is from a
case in the Gemara where a get was written by carving a piece of
wood until the letters projected. This get is invalid, since the letters
of the get were not written but were formed indirectly by removing the
area around them. This does not fulfill the Torah’s requirement that a get
be written [Gittin 20a]. “Writing” requires that the letters must
be formed, and not created indirectly.)

Therefore, if a sofer wrote the
letter “dalet” instead of a “reish,” it is halachically invalid
to erase the sharp corner of the “dalet” and form a “reish” (Tur
Orach Chaim Chapter 32, quoting Sefer Haterumos). If someone did
this, he has not written a “reish” but rather he formed a “reish”
indirectly, and this is not considered “writing.” Any tefillin, sefer
Torah or mezuzah made this way will be invalid (Shulchan Aruch
Orach Chaim 32:18).

If a sefer Torah was written
through “chok tochos,” the letter can be erased and rewritten. However,
if this problem occurs in tefillin or mezuzos, the parsha
will often be irreparable (Taz 32:16), and the parsha will have
to be put into sheimos (genizah).

Why not fix it?

Why can’t this mistake be corrected?

Halacha requires that
the parshios of tefillin and mezuzos be written in the
order in which the words appear in the Torah (rishonim, quoting
Mechilta, end of Parshas Bo). This requirement is referred to as
being written “kesidran,” in their proper sequence. For this reason, if
a letter was skipped and filled in afterwards, the tefillin or mezuzah
is posul and cannot be corrected. Similarly, if a “reish” was
mistakenly written as a “dalet,” and the problem was discovered after
more letters were written, the parsha is posul, unless one erases
all the letters written after the invalid “reish.”

The law of kesidran (in their
proper sequence) applies only to tefillin and mezuzos. Sifrei
Torah, megillos, and other holy writings do not have this rule, and their
letters may be written out of order. Therefore if some of their letters become posul,
they can be corrected.

Thus, we see that there are instances
that cannot be checked, in which we are completely dependent on the integrity
of the sofer. After investing many hours writing a beautiful parsha,
a sofer checks the parsha and discovers that one of its letters
was written incorrectly in a way that might invalidate the parsha. He
takes the parsha to his rav, who paskins that the parsha
is indeed posul and cannot be rectified. If the sofer lacks
integrity, what is to stop him from fixing the invalid letter so that it now
appears one hundred percent kosher?

Fortunately, tefillin and mezuzos
purchased from reputable sources should not have problems of dishonesty like
that just described. However, one should still try to find out about the sofer
whose tefillin one’s son will be wearing. Although it is difficult to
check whether someone is a yarei Shamayim, one should at least attempt
to ascertain whether the sofer appears to be a yarei Shamayim.

Furthermore, the sofer must be
thoroughly familiar with the halachos of writing tefillin or he
will certainly produce posul tefillin. There are literally
hundreds of ways that a non-knowledgeable sofer can write tefillin
that will be invalid. Thus, when purchasing tefillin, one must insist
that the sofer who wrote them is knowledgeable in the halachos of
safrus and that he has up-to-date certification from a recognized
organization or posek. Some of these organizations insist that the sofrim
they certify take periodic examinations to ascertain that they are still
competent in the halachos required for their profession.

A modern innovation

After the sofer finishes writing the tefillin parshios,
he reads them over several times, and then they are checked by a specially
trained examiner, or even better, by two trained examiners. In our era, the
checking process has been tremendously enhanced by a modern innovation –
computer-checking. The written parshios are scanned into a computer that
has a program comparing the written parshios with the computer’s
version. The computer checks for missing and extra letters and words, for
poorly and mistakenly formed letters, for connected or cracked letters and for
other errors.

Experience has proven that computers
have an infinite attention span and never get distracted by boredom or
exhaustion. (Of course, the computer’s proper performance depends on an alert
operator.) So, it is common for computers to catch mistakes that humans
overlook. There is a recorded instance of a pair of tefillin that was
checked nine different times without discovering that a word was missing, until
it underwent a computer-check! When purchasing tefillin, one should
insist that the parshios be computer-checked.

However, one may not rely only on a
computer-check of the tefillin since, at present, computers cannot check
for certain items such as proper spacing between letters and words.

It should be noted that neither the
examiner nor the computer can detect certain problems that occur, such as
letters written out of order and letters formed through “chok tochos.”
This is why the sofer’s yiras shamayim and his halachic knowledge
are absolutely indispensable.

Painting

The batim are painted jet-black
using paint containing only kosher ingredients (Shulchan Aruch 32:40).
Because there is little space between the compartments of the shel rosh,
it often happens that after the painting one can no longer see the separation
between the compartments. Since the individual compartments must be visible,
the batim macher carefully separates the compartments from one another
with a razor.

On inferior batim, non-scrupulous
batim machers may merely scratch the outside of the bayis to mark
where the four compartments actually are. This is invalid; there must be four
separate compartments, both inside and outside. Alternatively, sometimes a deep
groove is mistakenly scratched in the wrong place and does not demonstrate the
actual separation between the compartments. This is also invalid. A responsible
batim macher cuts between the compartments, to guarantee that they are indeed
fully separate, even after the painting.

Some poskim contend that one
should also request that the parchment used for the parshios be only
avodas yad. If one chooses to order avodas yad parchment, ask for
extra thin parchment. This special parchment is less likely to crack when
rolled and inserted into the batim, and thus, there is less likelihood
that the letters will eventually crack. It is also easier to fit the thin
parchment properly into the batim. The difference in cost for this
parchment is fairly small, relative to the overall cost of the investment in
the pair of tefillin.

Rolling up the parshios

All the components of the tefillin
are now complete, and it is time to insert the parshios into the bayis.
Before being placed into the ketzitzah, each parsha is rolled
from left to right, and then tied closed with a bovine tail hair (Elyah
Rabbah 32:43). These hairs should preferably be from a calf, to remind us
of the sin of the eigel hazahav, the golden calf (Beis Yosef,
quoting Shimusha Rabba). The parsha is then wrapped in a blank
piece of parchment, and this parchment is then tied closed with another bovine
hair. (According to Rambam, Hilchos Tefillin 3:1, these last two
steps are both halacha leMoshe miSinai.) One or more of these hairs is
pulled through a hole on the right side (from the perspective of the wearer) in
front of the bayis. This hole is one of those that will be soon be used
to stitch the titura closed. Thus, the hair used to tie the parsha
closed is visible on the outside of the tefillin (Zohar).

According to Rashi’s opinion,
which is the halacha, the parshios are now inserted according to
the order that they appear in the Torah. Thus, the first parsha, Kadeish
li kol bechor (Shemos 13:1-10), fills the leftmost compartment (from
the perspective of the wearer), with Vehayah ki yeviacha  (Shemos
13:11-16) next to it. Shema (Devorim 6:4-9) is placed next; and Vehayah
im shamo’a  (Devorim 11:13-21) is inserted inside the rightmost
compartment. However, according to Rabbeinu Tam, the last two parshios
are reversed, with Shema in the rightmost compartment and Vehayah im
shamo’a next to it. (There are, also, at least two other opinions
concerning the correct order of the parshios.)

Although we fulfill the mitzvah with
Rashi tefillin, the Shulchan Aruch states that a G-d fearing
person should wear Rabbeinu Tam tefillin, in addition to wearing Rashi tefillin
(Orach Chaim 34:2). However, the Shulchan Aruch qualifies this
ruling by stating that only a person known to observe beyond the requirements
of halacha is permitted to wear Rabbeinu Tam tefillin (Orach
Chaim 34:3). This is because of the prohibition against being pretentious
in one’s Yiddishkeit. Ashkenazim follow the Shulchan Aruch’s
ruling. However, the practice among many Sefardim and chassidim is that
all married men wear Rabbeinu Tam tefillin. In their opinion, once many
people follow a certain practice, it is no longer ostentatious for an
individual to observe it.

Big parshios

The parsha should fit completely
inside its compartment. Sometimes the shel yad parsha is too tall
to fit properly in the ketzitzah and the bottom of the parsha
protrudes into the titura, a situation that should be avoided (Shu”t
Shevet Halevi 3:3; Shu”t Yabia Omer 1:2:5). If the person who orders
the tefillin coordinates the correct size with the sofer and the batim
macher, this problem can be avoided.

Sewing the titura

After the parshios are placed
into their appropriate compartments, the titura is sewn closed. There is
a halacha leMoshe miSinai that this stitching must be made with
sinews (giddin; singular, gid) of a kosher animal (Shabbos
108a). There is another halacha leMoshe miSinai that these stitches must
form a perfect square (Menachos 35a). This is something that a person
can readily check on his own tefillin. I have often seen tefillin
where the stitching or the punching of the holes is sloppy, making the
stitching not square. This makes the entire pair of tefillin posul!

The tefillin should be stitched
with a single length thread of sinew (Shulchan Aruch Orach Chaim
32:51). Although there are lenient opinions that one can tie two pieces of gid
together, insist that your tefillin be stitched with a single gid.

Some batim machers glue
the top and bottom titura together, in addition to the stitching, to
help the titura stay closed. Some poskim contend that this
practice invalidates the tefillin, since the halacha leMoshe miSinai
is that the titura should be closed only by stitching with giddin
and with no other materials (Chazon Ish, Orach Chaim 11:10). One should
consult with his rav whether to request that the titura not be
glued.

We have now completed our lessons on the
manufacture of the batim and the parshios. In our next and last
installment, in two weeks, we will discuss the manufacture of the retzuos,
proper maintenance of kosher tefillin, and how to purchase them.

Question
#1: For a Crust of Bread

“How
far must I travel to get pas Yisroel?”

Question
#2: Camp Bread

“When
camping in the Shenandoah Mountains, we happened upon another group of campers
who clearly were not Jewish. They invited us to join them for their meal, which
we obviously could not. However, I saw that they made their bread on
site by mixing only flour, water, yeast and salt, and baking it on a grill. If
we had koshered the grill before they baked, could we have eaten their bread?”

Question
#3: A Caring Host

“I
usually purchase bread only from Jewish bakeries. We have an out-of-town guest
visiting who brought a kosher specialty bread as a gift, which I am sure is not
pas Yisroel. I don’t want to offend him, but may I eat it?”

Based
on a posuk in this week’s parsha, the Gemara suggests that
the prohibition against non-Jewish cooked food is min haTorah. Although
this is not the halachic conclusion, it is certainly an appropriate time
to discuss the laws of kosher bread.

Basic
background

In
other articles, I have discussed the laws of pas akum and pas Yisroel.
Bread baked with Jewish participation, as described in those articles,
is called pas Yisroel, and may be eaten without any reservation. Pas
akum means bread baked by a non-Jew, without Jewish participation. Pas
akum is subdivided into two categories, pas baalei batim, bread baked
by a gentile for personal use, which is usually prohibited, and pas paltur,
bread baked for sale. We should note that pas baalei batim is
prohibited, even when there are no other kashrus concerns either about
the ingredients or about the equipment used to prepare the bread (Avodah
Zarah 36a). Furthermore, one may not sell this bread to a non-Jew, out of
concern that he will in turn sell it to a Jew, who is forbidden to eat it (Toras
Chatas 75:4, quoting Shaarei Dura).

However,
there is an instance when one is permitted to consume pas baalei batim.
If one is in a place where there is no bakery, and the only bread available is
homemade bread, one may eat even pas baalei batim, provided one can
assume that all the ingredients are kosher (Shulchan Aruch, Yoreh Deah 112:8).
Thus, we can now answer one of our opening questions:

“When
camping in the Shenandoah Mountains, we happened upon another group of campers
who clearly were not Jewish. They invited us to join them for their meal, which
we obviously could not. However, I saw that they made their bread on
site by mixing only flour, water, yeast and salt, and baking it on a grill. If
we had koshered the grill before they baked, could we have eaten their bread?”

Since
this bread was baked by a gentile for personal use and not for sale, it has the
status of pas baalei batim, and would usually be prohibited, even if we
are absolutely certain that all the ingredients and the equipment are kosher.
However, if indeed no other bread is available, it is permitted to eat this
bread.

By
the way, if a Jew was there while they were baking the bread, he could easily
make this bread into pas Yisroel by adding a charcoal or a piece of wood
to the fire. In the case of a gas grill, a Jew could simply turn the gas flow
down and immediately up again to make it pas Yisroel.

Must
one use only pas Yisroel?

In
the previous articles on the topic of pas Yisroel, we learned that,
according to the Shulchan Aruch and the Shach, one may not use pas
paltur unless comparable pas Yisroel is not available. However, the Rema
ruled that standard Ashkenazic practice is to permit use of pas
paltur, except for Shabbos and during the aseres yemei teshuvah.
Both opinions agree that using pas Yisroel when pas paltur is
permitted qualifies as a hiddur, observing halachah in a more
exemplary fashion.

As
I noted, most supervised, kosher commercially baked bread is pas paltur
and not pas Yisroel, particularly those produced in factories. One of
those articles also noted that it is very easy to make bread and rolls produced
in factories into pas Yisroel, and that the hechsherim would make
the appropriate arrangements if consumers would demand it.

How
available?

As
we just learned, all opinions agree that one may use pas paltur when pas
Yisroel is not available. At this point, we need to define: What do we mean
when we say that pas Yisroel bread is “not available”? If there is no
Jewish bakery in my neighborhood, but there is one relatively nearby, is this
called that pas Yisroel is “not available”? What if the nearest pas
Yisroel is a twenty-minute walk, and the nearest pas paltur can be
purchased at the supermarket next door; does the Shulchan Aruch require
me to walk twenty minutes to acquire pas Yisroel, or may I use the more
accessible pas paltur? Is the halachah affected by whether I have
access to an automobile, and now a bakery that is a forty-five-minute walk can
be reached in ten minutes by car?

How
far?

Neither
the Gemara nor the early rishonim discuss the question: What do we
mean when we say that pas Yisroel bread is “not available”? However, the
Gemara (Pesachim 46a) discusses a related issue. This passage
examines three situations in which one is usually obligated to observe a halachah,
but, under extenuating circumstances, Chazal relaxed the requirement. In
the first case, a baker, who at the time of the Gemara was required to
produce bread that is tahor, ritually pure, has only tamei equipment
available. Using this equipment to produce his bread will render it tamei,
which is not ideal in a situation when people are trying to be always tahor.

The
baker knows that, in the direction in which he is traveling, a mikveh is
available for him to purify his equipment, but it is four millin away
(roughly between two and three miles, see below). Is he permitted to produce
bread in the interim, knowing that what he produces will be tamei?

The
halachah requires him to travel ahead to the mikveh and immerse
his equipment, rather than manufacture tamei bread. If, however, the
nearest mikveh is more than four millin down the road, he may
stop now and prepare his bread.

A
second case of the Gemara: Someone is traveling and would like to stop
for the night. He knows that four millin ahead of him on the road there
is a minyan. Is he required to push onward the four millin, so
that he will be able to daven with a minyan, or may he stop,
knowing that he will be forced to daven without a minyan? The Gemara
concludes that he is required to travel up to four millin in order to daven
with a minyan. If, however, the nearest minyan is more than four millin
down the road, he may stop for the night where he is, even though that means
that he will be davening without a minyan.

A
third case: Someone is traveling and has no water with which to wash netilas
yadayim for eating bread. He knows that he will find water within four millin
of his travels. May he eat now, without washing, by wrapping his hands in cloth
or by wearing gloves, or is he required to wait until he reaches the water so
that he can wash netilas yadayim before he eats his bread (see Shulchan
Aruch, Orach Chayim 163:1)? The Gemara concludes that he is required
to travel ahead up to four millin in order to wash before eating.
However, if the nearest appropriate and available water is more than four millin
down the road, he may wrap his hands in cloth and eat his bread without first
washing netilas yadayim.

How
far is four millin?

A mil
is 2000 amos, or cubits, which means that four millin is more than
two miles, and probably less than three. This range of distance is because
there are different opinions as to the length of an amoh.

How
long does it take to walk a mil?

There
is a dispute among halachic authorities how long it takes for an
“average” individual to walk a mil. Some contend that walking a mil
takes the average person about 18 minutes, which means that it takes 72 minutes
to walk four millin. A second opinion contends that it takes 22.5
minutes to walk a mil and 90 minutes to walk four. A third opinion
maintains that it takes 24 minutes to walk a mil and 96 minutes to walk
four. The different opinions in this dispute represent three differing
approaches to explain a complicated passage of Gemara (Pesachim
95).

Many
halachos are dependent on this dispute, including such questions as:

When
does a fast begin?

How
long must meat be salted to kosher it?

When
does Shabbos end?

In
how much time does dough become chometz?

Most,
but by no means all, later authorities, conclude that the average person can
walk one mil in 18 minutes and four millin in 72 (Shulchan
Aruch, Orach Chayim 459:2 and Yoreh Deah 69:6).

Today

Of
the three cases mentioned in the Gemara Pesachim, two are still
relevant in our generation. Unfortunately, until we again have a parah
adumah, we are all tamei, and therefore, the first of the three
cases, the baker whose equipment is tamei, is not germane to us at the
moment. But the questions about someone traveling and seeking a minyan,
or water to wash for bread, are both very relevant and, indeed, are discussed
by the Shulchan Aruch (Orach Chayim 90:16 and163:1).

Out
of my way

Thus
far, we have quoted the part of the Gemara that discusses someone who
knows that there is a mikveh, minyan or water ahead of him
in the same direction in which he is traveling. What is the law when the
nearest mikveh, minyan or water is not located in the direction
in which I am traveling? Am I required to travel out of my way to
fulfill these mitzvos, and, if I am, how far out of my way must I go?

The
Gemara’s conclusion is that he is required to travel up to one mil
out of his way to reach a mikveh, minyan, or washing water,
whichever is relevant to the question. Thus, someone who would like to eat
bread, and who is in a place where he has no water with which to wash, is
required to travel up to one mil out of his direction to wash his hands.
However, if the nearest water is a mil or more distant and in a
direction that is out of his way, he is permitted to wrap his hands and eat
bread without washing netilas yadayim (Shulchan Aruch, Orach Chayim 163:1).
The same rules apply to someone needing a minyan with which to daven.

At
home

What
is the law if someone is at home, must he go to daven with a minyan.
The Pri Chodosh (Orach Chayim 163:28) concludes that he has the
same law as someone who would have to travel out of his way to find a mikveh,
minyan or water. In other words, he is required to leave his house, if
the minyan is located within a mil of where he is.

Pas
Yisroel at a distance

The
same question can be asked by someone at home wanting to know how far he is
required to travel to obtain pas Yisroel?

Although
the Gemara does not discuss how far one must travel to obtain pas
Yisroel, there are rishonim who compare the halachah regarding
pas Yisroel to the other three situations mentioned in the Gemara.
They reason that this Gemara provides a framework for understanding what
is considered a distance at which one is required to inconvenience oneself to
fulfill similar mitzvos. The Shulchan Aruch (Yoreh Deah 112:16)follows this interpretation, ruling that if someone is traveling and
there is pas Yisroel available further down the road, he is required to
travel for as long as four millin in order to eat pas Yisroel,
rather than pas paltur. If he would need to travel out of his way, he is
required to travel up to a distance of one mil to obtain pas Yisroel,
but no farther.

As
we noted before, the Shulchan Aruch rules that it is permitted to eat pas
paltur only when pas Yisroel is not available. The Rema is
more lenient, concluding that it is permitted to eat pas paltur even
when pas Yisroel is readily available. Thus, according to common Ashkenazic
practice, there is no requirement to travel at all to obtain pas Yisroel.
However, during the aseres yemei teshuvah and for Shabbos, when
most authorities require that we eat only pas Yisroel, the rules above
are appropriate. If pas Yisroel is available only by traveling a mil
out of one’s way, one is not required to get it.

How
far or how long?

At
this point, we need to discuss a very practical issue. When Chazal
required that I go one mil out of my way to get pas Yisroel, was
this requirement based on time or distance? What if someone is traveling in a way
swifter than by foot, be it horse, automobile, or camel? Is his requirement for
these mitzvos determined by the distance he must travel to fulfill the
mitzvah in its optimal way, or is it determined by the time it will take him to
get there? In other words, did they establish that within a one mil
radius of a Jewish bakery one may not use pas paltur, or did they rule
that one is required to travel eighteen minutes to obtain pas Yisroel?
The difference in practical halachah is major.

This
question is disputed by later authorities. Some contend that if pas Yisroel
is more than one mil distant from where I am, I may use pas paltur,
even though I could get there faster by riding a horse (Pischei Teshuvah,
Yoreh Deah 112:6, quoting the Beis Yaakov). Since, in my entire
life, I have never traveled on horseback to acquire bread, this opinion would
impact on me, regarding if I am required to drive an automobile this far when pas
paltur is more readily available.

On
the other hand, the Mishnah Berurah (Chapter 163, Biur Halachah s.v.
berichuk), writing germane to netilas yadayim, comments that it
is more likely that the concern is the amount of time the travel would take and
the physical distance should not make a difference.

Being
a good host

At
this point, let us discuss a different one of our opening questions:

“I
usually purchase bread only from Jewish bakeries. We have an out-of-town guest
visiting who brought us a gift of a kosher specialty bread, which I am sure is
not pas Yisroel. I don’t want to offend him, but may I eat it?”

This
question has an early source. Several early authorities discuss the following
case: Someone who is careful to use only pas Yisroel invited a guest who
brought with him quality pas paltur that he would like to share with his
host. The question here is that the guest would prefer to eat the bread that he
brought, yet the host would not usually eat this bread, because it is not pas
Yisroel. The halachic etiquette is for the host to be the one who
recites the brocha of hamotzi for everyone at the beginning of
the meal, and then he slices and serves the bread that will accompany the meal.
This accomplishes that, when the host distributes an ample amount of bread, the
guests feel comfortable eating their fill. Thus, to be a proper host, the host
should recite hamotzi and serve the guest the pas paltur bread
that he brought.

Now,
we add another halachah to the question: When one intends to serve two
types of bread at a meal, one should recite the hamotzi blessing over the
better quality bread and eat from it immediately after reciting hamotzi.

The
combination of all these halachos creates a conundrum for the host. If
he follows his own usual practice, he would make hamotzi on the pas
Yisroel, which is of lesser quality than the pas paltur that his
guest provided. On the other hand, his guest is under no requirement to refrain
from eating the better-quality pas paltur. Thus, the etiquette of being
a good host should have the host reciting hamotzi over the pas paltur,
something he would not usually eat.

The
halachah is that, indeed, the host should recite the hamotzi over
the guest’s pas paltur, and he is permitted to eat the pas paltur
for that entire meal in order to properly accommodate his guest (Mordechai,
Avodah Zarah #830; Shulchan Aruch, Yoreh Deah 112:13). This is
notwithstanding his usual practice not to eat pas paltur. Since the halachah
rules this way, in this situation, the host does not need to perform hataras
nedarim before he partakes of the pas paltur.

Conclusion

The
Gemara teaches that rabbinic laws are dearer to Hashem than the
Torah laws. We see that there is a vast halachic literature devoted to
the laws of pas akum, which was created by Chazal to protect the
Jewish people.

Those of us living in Eretz Yisroel, are reading parshas
Korach this week, from which the Gemara cites a source for the
mitzvah of bikur cholim. Those living in chutz la’aretz, can
certainly find ample reason to study the laws of bikur cholim this week.

Question #1: “Rabbi,” asked Mr. Greenberg, “My neighbor,
Mrs. Friedman, is having an operation. Is it appropriate for me to visit her?”

Question #2: Does Dr. Strauss fulfill the mitzvah of bikur
cholim when he makes his hospital rounds?

Question #3: “My sister-in-law is hospitalized for a few
days for a minor procedure. I should really visit her, but I just can’t find
the time. Is it halachically sufficient for me to call her?”

Based on a pasuk in parshas Korach, the Gemara
(Nedarim 39b) teaches: “There is an allusion to the mitzvah of bikur
cholim in the Torah: When Moshe declares, ‘If these people (Korach’s party)
will die like most people do, and the destiny of most people will happen to
them, then Hashem did not send me.’ How do we see an allusion to the mitzvah
of bikur cholim in the pasuk? Moshe declared: If these people
will die like most people do – if they will become ill and bedridden and people
will come to inquire about their needs (in other words, illness provides an
opportunity for people to fulfill the mitzvah of bikur cholim) – then
people will say ‘Hashem did not send me.’” Thus, the Gemara cites
this week’s parsha as one of the sources in the Torah for the mitzvah
of bikur cholim since Moshe specifically asked that Korach and his party
not die in the manner that most people, where this a chance to achieve this
important mitzvah.

Another allusion to bikur cholim is in the beginning
of Parshas Vayeira, where is says that Hashem visited Avraham
Avinu three days after his Bris Milah. Rashi points out that Hashem
was performing bikur cholim, visiting and providing care for the ill. In
the same way, by taking care of the ill, we fulfill the mitzvah of emulating Hashem’s
ways, in addition to the special mitzvah of bikur cholim (Sotah
14a). Thus, physicians, nurses or other medical professionals should have in
mind before every visit or appointment that they are performing two mitzvos,
one of emulating Hashem, and the other of bikur cholim. Since we
rule that mitzvos tzerichos kavanah, to fulfill a mitzvah requires being
cognizant of that fact, any medical professional gains much merit by being
aware of this every day and all day.

Every community should have an organization devoted to the
needs of the sick, and it is a tremendous merit to be involved in organizing
and participating in such a wonderful chesed project (Ahavas Chesed 3:3).

The Kli Yakar (Bamidbar 16:29) offers an
additional reason for fulfilling bikur cholim –– to benefit the
visitor. Seeing someone ill influences the visitor to think about the
importance of doing teshuvah. And this influence provides extra merit
for the sick person, since he caused someone else to do teshuvah!

The Gemara (Nedarim 40a) reports that when one
of Rabbi Akiva’s disciples was ill, no one came to check his welfare. Then
Rabbi Akiva entered his dwelling, cleaned it and sprinkled water on the floor
(to prevent dust from rising), and the student exclaimed, “Rabbi Akiva, you have
brought me back to life!” After this experience, Rabbi Akiva taught that
someone who visits the ill is considered to have saved his life!

WHY “BIKUR” CHOLIM?

What does bikur cholim mean?

It is worth noting that although “bikur” means
“visit” in modern Hebrew, the original meaning of “bikur” is not “visit”
but “checking.” In other words, the actual mitzvah of bikur cholim is to
check which of the sick person’s needs have not been attended to (Toras
HaAdam).

There are two main aspects of this mitzvah:

I. Taking care of the physical and emotional needs of someone who is
ill.

II. Praying for the recovery of the ill person (Toras
HaAdam, based on Nedarim 40a).

I. TAKING CARE OF PHYSICAL NEEDS

In addition to raising the sick person’s spirits by showing
concern, the visitor should also ensure that the physical, financial, and
medical needs of the ill person are properly being attended to, as well as
other logistical concerns that may be troubling him/her. Often, well-meaning
people make the effort to visit the sick, but fail to fulfill the mitzvah of bikur
cholim properly, because they fail to take care of the choleh’s
needs (Gesher HaChayim).

Always cheer up the choleh (Gesher HaChayim). 
This is included in attending to his emotional needs.

The visit is to benefit the choleh. In most
circumstances, a visit should be short and not tire out or be uncomfortable for
the ill person. Sometimes the sick person wants to rest, but feels obligated to
converse with a visitor (Aruch HaShulchan, Yoreh Deah 335:4). In such
cases, visitors think they are performing a mitzvah, while, unfortunately, they
are actually doing the opposite. It is important to remember that the entire
focus of bikur cholim is on the sick person’s needs and not on the
visitor’s desire to feel noble or important. I remember my mother, a”h,
having such guests during one of her hospital stays; although she kept hinting
that she wanted to rest, they didn’t catch on and stayed put. They thought they
were performing a kind deed, while, in reality, they were harming a sick person
who desperately needed to rest.

OVERNIGHT CARE

One of the greatest acts of chesed is to stay
overnight with a choleh (Aruch HaShulchan, Yoreh Deah 335:3; Shu’t
Tzitz Eliezer, Volume 5, Ramat Rachel, #4). A similar act of bikur
cholim and true chesed is to stay overnight with a hospitalized
child to enable parents to get some proper sleep and keep their family’s life
in order.

A person can fulfill the mitzvah of bikur cholim even
a hundred times a day (Nedarim 39b). If one frequently pops one’s head
into one’s sick child’s bedroom to see how the child is doing, or periodically
drops in to visit a shut-in, one fulfills a separate mitzvah each time, so long
as it does not become burdensome to the choleh. Similarly, a nurse
fulfills the mitzvah of bikur cholim each time he/she checks on a
patient, and, therefore, she should have intent to do this for the sake of
fulfilling the mitzvah.

This applies even if the nurse is paid, because the
proscription against being paid to do a mitzvah applies only to the mitzvah’s
minimum requirement. Once one does more than this minimum, one can be paid for
the extra time one spends. The same certainly applies to someone paid to stay overnight
with a sick patient.

IS THERE AN OPTIMUM TIME OF DAY TO VISIT?

The Gemara states that one should not
visit a sick person during the first quarter of the day, since one usually
looks healthier in the morning and the visitor may not be motivated to pray on
behalf of the ill person. One should also not visit a sick person at the end of
the day, when he looks much sicker and one might give up hope. Therefore, one
should visit an ill person during the middle part of the day (see Nedarim
40a, and Ahavas Chesed 3:3). Rambam offers a different reason for
this halacha, explaining that at other times of the day, visitors might
interfere with the attendants and medical personnel who are taking care of the choleh
(Hilchos Aveil 14:5).

Thus, the ideal time for visiting an ill person is in the
middle of the day, unless he is receiving medical treatment at that time.

Despite the above, the custom is to visit the ill person,
regardless of the time of the day. Why is this so? The Aruch HaShulchan
(Yoreh Deah 335:8) explains that the Gemara’s visiting times are
advisory rather than obligatory. The Gemara is saying that one should
visit the ill person at the time most beneficial for his care, which is usually
the afternoon, either because this does not interfere with medical care or
because it is the best time to detect the patient’s medical status. However,
this is only advice and can be tempered by other practical concerns.

WHAT IF THE ILL PERSON IS RECEIVING SUBSTANDARD CARE?

In this instance, one should try to upgrade the choleh’s care
without agitating him in the process (Gesher HaChayim).

WHOM TO VISIT FIRST

Usually, it is a greater mitzvah to visit a poor choleh
than a wealthy one. This is because there is often no one else to care for the
poor person’s needs (Sefer Chassidim #361). Additionally, he may need
more help because of his lack of finances, and he is more likely to be in
financial distress because of his inability to work (Ahavas Chesed 3:3).

If two people need the same amount of care and one of them
is a talmid chacham, the talmid chacham should be attended to
first (Sefer Chassidim #361). If the talmid chacham is being
attended to adequately and the other person is not, one should first take care of
the other person (Sefer Chassidim #361).

CROSS-GENDER VISITING

Should a man pay a hospital visit to a female non-relative,
or vice versa?

The halacha states that a man may attend to another
man who is suffering from an intestinal disorder, but not to a woman suffering
from such a problem, whereas a woman may attend to either a man or a woman
suffering from an intestinal disorder (Mesechta Sofrim Chapter 12). This
implies that one may attend to the needs of the opposite gender in all other
medical situations (Shach, Yoreh Deah 335:9; Birkei Yosef, Yoreh Deah
335:4; Aruch HaShulchan, Yoreh Deah 335:11 and Shu’t Zakan Aharon
2:76).

There is a famous story of Rav Aryeh Levin, the tzaddik of
Yerushalayim. He was once concerned that a certain widow who had been told not
to fast on Yom Kippur would disobey orders, he personally visited her on Yom
Kippur and boiled water for a cup of tea to ensure that she drank. In this way,
he fulfilled the mitzvah of bikur cholim on Yom Kippur in a unique way (A
Tzaddik in Our Time).

However, some halachic authorities distinguish
between attending to a sick person’s needs, and visiting, contending that
although a woman may usually provide a man’s nursing needs and vice versa,
there is no requirement for a woman to visit an ill man (Shu’t Tzitz
Eliezer, Volume 5, Ramat Rachel, and Zichron Meir pg. 71 footnote 24
quoting Shu’t Vayaan Avrohom, Yoreh Deah #25 and others).
Other authorities contend that when one can assume that the woman’s medical
needs are provided, a man should not visit her, because of tzniyus concerns
(Shu’t Chelkas Yaakov 3:38:3; Shu’t Tzitz Eliezer, Volume 5,
Ramat Rachel, #16). Instead, the man should inquire about her welfare and
pray for her. I suggest asking your rav or posek for direction in
these situations.

II. PRAYING FOR THE ILL

The Beis Yosef (Yoreh Deah 335) writes, “It is
a great mitzvah to visit the ill, since this causes the visitor to pray on the
sick person’s behalf, which revitalizes him. Furthermore, since the visitor
sees the ill person, the visitor checks to see what the ill person needs.” We
see that Beis Yosef considers praying for the ill an even greater part of the
mitzvah than attending to his needs, since he first mentions praying and then
refers to attending to the other needs as “furthermore.”

Someone who visits a sick person without praying for his
recovery fails to fulfill all the requirements of the mitzvah (Toras HaAdam;
Rama 335:4). Therefore, physicians, nurses, and aides who perform bikur
cholim daily should accustom themselves to pray for their sick patients, in
order to fulfill the mitzvah of bikur cholim. A simple method of
accomplishing this is to discreetly recite a quick prayer (such as “Hashem,
please heal this person among the other ill Jewish people [b’soch she’ar
cholei yisrael]”) as one leaves the person’s room. (A doctor in his office
can recite the same quick prayer.)

MUST ONE PRAY FOR A SICK PERSON BY NAME?

When praying in a sick person’s presence, one does not need
to mention his name, and one may recite the prayer in any language. The Gemara
explains that this is because the Shechinah, the Divine presence, rests
above the choleh’s head (Shabbos 12b). However, when the ill
person is not present, one should pray specifically in Hebrew and should
mention the person’s name (Toras HaAdam; Shulchan Aruch Yoreh Deah
335:5). If one cannot pray in Hebrew, one may do so in English or any other
language except Aramaic (see Taz, Yoreh Deah 335:4).

[Incidentally, since the Shechinah is in the choleh’s
presence, visitors should act in a dignified manner (Shabbos 12b; Shl”a).
This includes both their behavior and their mode of dress.]

Why must one pray in Hebrew when the ill person is not
present? Rashi explains that in such a case, when one prays for an
individual, angels have to transport the prayer to the Divine presence (the Shechinah)
– these angels transport only prayers recited in Hebrew and not those recited
in Aramaic (Rashi, Shabbos 12b s.v. Deshechinah). However,
when praying in the presence of the sick person, one may pray in any language,
since the Shechinah is nearby and the prayer does not require the angels
to transport it on high (Shabbos 12b).

MAY ONE PRAY IN ENGLISH FOR THE ILL?

This explains the difference between Hebrew and Aramaic. What
about other languages? Do the angels “transport” prayer recited in a different
language?

To answer this question, we must first explain why angels do
not transport Aramaic prayers?

The halachic authorities dispute why the angels do
not convey prayers recited in Aramaic. Some contend that angels communicate
only in Hebrew and, furthermore, only convey a prayer that they understand (Tosafos,
Shabbos 12b s.v. She’ayn). According to this approach, the angels convey
only Hebrew prayers. However, other authorities contend that the angels do not
convey Aramaic prayers because they view this language as corrupted Hebrew and
not a real language (Rosh, Berachos 2:2). Similarly, the angels will not
convey a prayer recited in slang or expressed in an undignified way. According
to the latter opinion, the angels will convey a prayer recited in any proper
language, and one may pray in English for an ill person even if he is not
present.

The Shulchan Aruch quotes both opinions, but
considers the first opinion to be the primary approach (Orach Chayim
101:4). However, in Yoreh Deah 335:5, the Shulchan Aruch omits
the second opinion completely. The commentaries on the Shulchan Aruch
raise this point, and conclude that the Shulchan Aruch felt that praying
for an ill person is such a serious matter that one should certainly follow the
more stringent approach and pray only in Hebrew when the choleh is not
present (Taz, Yoreh Deah 335:4). Therefore, one should not pray for an
individual sick person’s needs in any language other than Hebrew. Only if one
is unable to pray in Hebrew, may one rely on the second opinion and pray in any
language other than Aramaic.

DOES ONE FULFILL BIKUR CHOLIM OVER THE TELEPHONE?

To answer this question, let us review the reasons for this
mitzvah and see if a telephone call fulfills them. One reason to visit the ill
is to see if they have any needs that are not being attended to. Although a
phone call might discover this, being physically present at the bedside is
usually a better method of ascertaining what is needed. The second reason one
visits the ill is to motivate the visitor to pray on their behalf. Again,
although one may be motivated by a phone call, it is rarely as effective as a
visit. Furthermore, although a phone call can cheer up the choleh and
make him feel important, a personal visit accomplishes this far more
effectively. Therefore, most aspects of this mitzvah require a personal visit.
However, in cases where one cannot actually visit the choleh, for
example, when a visit is uncomfortable for the patient or unwanted, one should
call (Shu’t Igros Moshe, Yoreh Deah 1:223; Shu’t Chelkas
Yaakov 2:128). Some authorities contend that it is better for a man to
call, rather than visit, a hospitalized or bed-ridden woman who is not a
relative, since it is difficult for an ill person to maintain the appropriate
level of tzniyus (Chelkas Yaakov 3:38:3).

ALWAYS PRAY FOR GOOD HEALTH

A healthy person should daven for continuing good
health, because it is far easier to pray that one remain healthy than to pray
for a cure after one is already ill. This is because a healthy person remains
well so long as no bad judgment is brought against him in the heavenly
tribunal, whereas an ill person needs zechuyos to recover. This latter
instance is not desirable for two reasons — first, the choleh may not
have sufficient zechuyos, and second, even if he does, he will lose some
of his zechuyos in order to get well.

Before taking medicine or undergoing other medical treatment
one should recite a short prayer: “May it be Your will, Hashem my G-d,
that this treatment will heal, for You are a true Healer” (Magen Avraham
230:6; Mishnah Berurah 230:6, based on Berachos 60a).

People who fulfill the mitzvah of bikur cholim are
promised tremendous reward in Olam Haba, in addition to many rewards in
this world (Shabbos 127a). Someone who fulfills the mitzvah of bikur
cholim properly is considered as if he saved people’s lives and is rewarded
by being spared any severe punishment (Nedarim 40a).

May Hashem send refuah shleimah to all the cholim
of Klal Yisrael!

Question #1: Invitations

“I was told that I should not include quotations from pesukim
on my daughter’s wedding invitation. Yet, I see that ‘everyone’ does! Could you
please explain the halacha?”

Question #2: Sukkah Decorations

“Someone told me that sukkah decorations should not
include any pesukim. Is this true? My children bring home decorations
like this from school.”

To answer these questions, we need to explain several halachic
issues, including:

1. The original prohibition against writing Torah
she’be’al peh, and the later “heter” to write and publish it.

2. The concern about producing divrei Torah
that will not be treated appropriately.

The original prohibition against writing Torah she’be’al
peh

Originally, it was prohibited to write down any Torah
she’be’al peh (Gittin 60b), except for an individual’s personal
notes recorded for one’s own review (Rambam, Introduction to Mishneh
Torah; see also Rashi, Shabbos 6b s.v. Megilas). The Oral Torah
was not permitted to be taught from a written format. Torah she’be’al peh was
meant to be just that — Torah taught completely without any written text.
Thus, Moshe Rabbeinu taught us the halachos of the Torah orally,
and Klal Yisrael memorized them. Although each student wrote
private notes for the sake of review, the Oral Torah was never taught from
these notes.

The prohibition against writing Torah she’be’al peh included
writing midrashim, prayers and the texts of berachos, as well as
translations and commentaries of the Written Torah, since all these are
considered Torah she’be’al peh. In those times, all these devarim
she’be’kedusha were memorized, and the only parts of the Torah that were
written were the pesukim themselves.

The Gemara (Gittin 60b) records this halacha
as follows: Devarim she’be’al peh, iy atah resha’ie le’omram bichsav,
“You are not permitted to transmit the Oral Torah in writing.” The Ritva
(ad loc.) explains that this is because divrei Torah taught verbally are
understood more precisely, whereas text learning is often misunderstood.

Another prohibition forbade writing the books of Tanach except
when writing a complete sefer (Gittin 60a). Thus, one could not
write out a parsha or a few pesukim for learning, although it was
permitted to write an entire Chumash, such as Sefer Shemos.
Similarly, one could not write out part of a sefer of Navi to
study or to read the haftarah. In order to recite the haftarahs
regularly, every shul needed to own all of the eight Nevi’im (Yehoshua,
Shoftim, Shemuel, Melachim, Yeshayahu, Yirmiyahu, Yechezkel, and Terei
Asar) to read the haftarah from the appropriate sefer.
Similarly, a person who wished to study Shiras Devorah or the prayer of
Channah had to write the entire Sefer Shoftim or Sefer Shemuel.

Why do we no longer abide by this prohibition?

Chazal realized that it was becoming increasingly
difficult for people to learn Torah and to observe certain other mitzvos,
such as reading the haftarah. Therefore, they ruled that the prohibition
against writing Torah must be superseded by the more vital need of keeping
Torah alive among the Jews. This takanah was based on the pasuk, Eis
la’asos laShem heifeiru torasecha, which is understood to mean “It is the
time to act for Hashem since Your Torah is being uprooted” (Tehillim
119:126). In order to facilitate Torah study, they permitted writing individual
verses and teaching Oral Torah from written texts. (We will refer to this takanah,
or heter, as “eis la’asos.”)

The first part of the Oral Torah to be formally written for
structured teaching was the Mishnah, edited by Rebbe (Rabbi Yehudah HaNasi) at
the end of the period of the tanna’im (circa 3960/200 c.e.). To quote
the Rambam, “Rebbe gathered all the laws and explanations that had been
studied and interpreted by every beis din since the days of Moshe
Rabbeinu and organized the Mishnah from them. He (Rebbe) proceeded to teach
publicly the scholars of his generation from this text, so that the Oral Torah
would not be forgotten from the Jewish people. Why did Rebbe change the method
that had been used previously? Because he saw that the numbers of Torah
students were decreasing, the difficulties facing the Jewish people were on the
rise, the Roman Empire was becoming stronger, and the Jews were becoming
increasingly scattered. He therefore authored one work that would be in the
hands of all the students, to make it easier to study and remember the Oral
Torah” (Introduction to Mishneh Torah).

We see that Rebbe instituted the first formalized use of a
text to teach the Oral Torah, because of the new circumstances confronting klal
Yisrael. After Rebbe’s days, Chazal gradually permitted writing down
other texts, first Aggadah (ethical teachings of the Gemara),
later the entire Gemara, and still later, the explanations and
commentaries on the Gemara.

As a very important aside, we see from the end of the quoted
Rambam, “to make it easier to study and remember the Oral Torah,” that
even though it is now permitted to write down the Mishnah, it is still important
to know the entire Oral Torah by heart.

In the context of the rule of eis la’asos, the Gemara
tells us the following story:

Rabbi Yochanan and Reish Lakeish (amora’im in Eretz
Yisrael shortly after the time of Rebbe) were studying from a Talmudic
anthology of ethical teachings, a “sefer Aggadah.”

The Gemara asks, “How could they study from such a
book, since it is prohibited to learn Torah from a written text?” The Gemara
replies, “Since it is now impossible (to retain all the knowledge of the Torah
without a written text), ‘it is the time to act for Hashem, since Your Torah is
being uprooted,’” (Gittin 60a). We see that the Gemara initially
assumed that it was still prohibited to study Torah from a written text, except
for the study of Mishnah. The Gemara responded that the prohibition had
been further relaxed because it had become even more difficult to learn Torah
than it had been in the days of Rebbe.

The Gemara relates a similar episode concerning the
recital of the haftarah. As mentioned above, it was originally forbidden
to write part of a book of Tanach, and, therefore, every shul
needed to own scrolls of all the Nevi’im in order to read the haftarahs.
However, as communities became more scattered, making this increasingly
difficult, the Gemara permitted the writing of special haftarah
books that contained only the haftarah texts, but not the text of the
entire Nevi’im. This, too, was permitted because of eis la’asos (Gittin
60a).

What else is permitted because of eis la’asos?

We see that in order to facilitate Torah learning, Chazal
permitted the writing of the Oral Torah and parts of the books of the Written
Torah. To what extent did they override the original prohibition?

This is a dispute among early poskim, some contending
that it is permitted to write only as much as is necessary to prevent Torah
from being forgotten. According to this opinion, it is prohibited to write or
print even tefillos that include pesukim when they are not
intended for learning Torah (Rif and Milchemes Hashem, Shabbos
Chapter 16). This opinion also prohibits translating Tanach into any
language other than the original Aramaic Targum, because proper
translations constitute Torah she’be’al peh. In addition, this opinion
prohibits the printing of a parsha of Chumash in order to teach
Torah, since one could write or print the entire sefer (Rambam,
Hilchos Sefer Torah 7:14; Shulchan Aruch, Yoreh Deah 283:2).

Other poskim permit the writing of any Torah that one
uses to learn. Thus, they permit writing a single parsha in order to
teach Torah (Taz, Yoreh Deah 283:1; Shach, Yoreh Deah 283:3) and
the translating of Tanach into any language. These poskim rally
support to their opinion from the fact that Rav Saadya Gaon wrote sefarim
in Arabic, including commentaries on Tanach (Ran, Shabbos,Chapter
16).

Both opinions agree that it is prohibited to publish
translations of Tanach that will not be used to spread Torah knowledge (Ran,
Shabbos, Chapter 16).

How does this prohibition affect us?

All of the opinions quoted above prohibit writing disparate
parts of the Written Torah and any of the Oral Torah in situations where there
is no Torah benefit. For this reason, early poskim note that one may not
embroider a pasuk or a beracha on a talis, since writing
thisdoes not serve to teach Torah (Rabbeinu Yerucham, quoted by Beis
Yosef, and Taz, Yoreh Deah 283:3. It should be noted that the Levush
is more lenient, see Shach, Yoreh Deah 283:6.).

Another concern

There is an additional
reason why one should not embroider pesukim on a talis. Since the
talis could be brought into an unclean place, it is not proper to have a
pasuk written on it.

A third concern – causing the words of Torah to be
destroyed

To explain this concept, we must first introduce a
surprising statement of the Gemara: Ko’sevei berachos kesorfei Torah,
“Those who write berachos (to enable people to recite them) are
considered as if they burnt the Torah” (Shabbos 115b). What does this Gemara
mean? We would think that these individuals have performed a tremendous
mitzvah, since they have enabled people to recite berachos correctly!

This statement was authored at the time when it was still
prohibited to write down the Oral Torah. At that time, it was forbidden to
teach any halachos in written form, even the correct text of a beracha.
Everything had to be taught orally. Therefore, the Gemara states that by
writing a beracha, even without the name of Hashem (Shu’t Tashbeitz
#2), one is violating the halacha by teaching Torah she’be’al peh in
writing.

But why is it considered like “burning the Torah”?

This Gemara
introduces a new prohibition. Someone who writes prohibited Torah works is
considered culpable afterwards, if those divrei Torah become consumed by
a fire! Writing unnecessarily, which results in subsequent destruction, is akin
to burning Torah.

We know that it is prohibited to erase or destroy the Name
of Hashem (Shabbos 120b), and that this prohibition includes erasing or
destroying words of Torah and all other holy writings, including notes of Torah
classes, stories of Chazal, sefarim for learning, “benschers,”
etc., even if they do not include Hashem’s Name (Shu’t Tashbeitz
#2). Therefore, even small benschers, tefillos haderech and similar
items published with abbreviated names of Hashem are still considered divrei
Torah imbued with kedusha. For the above reason, one must treat
these items with proper care and dignity and place them in sheimos when
they become unusable.

It is also prohibited to cause an indirect destruction of
words of the Torah or to produce divrei Torah that might subsequently be
destroyed. This prohibition exists whenever there is insufficient reason to
write and publish the divrei Torah. For this reason, the Gemara
states that someone who wrote berachos when it was prohibited to do so
is held responsible, if the words of Torah are subsequently destroyed.

Although, nowadays, we are permitted to write and print berachos
and siddurim to enable people to recite them properly, it is
forbidden to produce these items unnecessarily. It is certainly prohibited to
put pesukim, parts of pesukim, or divrei Torah in places
where it is likely that they will be treated improperly. Both of these reasons
preclude writing pesukim on Sukkah decorations, unless one can assume
that they will be properly cared for.

How much of a pasuk is considered to be divrei
Torah?

Even three words in a row are considered a pasuk that
may not be written without sufficient reason (see Gittin 6b). However, if
the letters are improperly or incompletely formed or spelled, it is permitted (Shu’t
Tashbeitz #2).

For this reason, some people print on invitations the
following, Naaleh es Yerushalayim al rosh simchaseinu, “We will place
our memories of Yerushalayim above our celebrations.” This is permitted,
because it is not a quotation of a pasuk, although it is similar to the posuk
in Tehillim 137:5.

There is another solution that may be used: rearranging the
words of the pasuk so that they are not in the correct order. When doing
this, one must be certain that one does not have three words in the proper
order.

I once received an invitation which stated on the cover, Yom
zeh asah Hashem nismecha venagila bo, “This day was made by Hashem. We
shall rejoice and celebrate on it.” The person who prepared this quotation had
done his halachic research. Although very similar to the pasuk, “Zeh
hayom asah Hashem nagilah v’nismecha bo” (Tehillim 118:24), the
words of the original pasuk were transposed in such a way that there
were no longer three consecutive words together!

Some authorities permit printing pesukim if marks are
placed between the words, or if the words are not in a straight line. They feel
that these arrangements of words do not constitute pesukim (cf. Shu’t
Tashbeitz #2 who disagrees).

Some producers of “lulav bags” are meticulously
careful not to quote three words of the pasuk in order. Thus, they
write, “Ulekachtem lachem… kapos temarim…usemachtem” avoiding writing
three consecutive words of a pasuk (Vayikra 23:40). This is
permitted.

Invitations

Perhaps people who print pesukim on invitations rely
on the fact that this is considered mere poetic writing style, or that the
printer has no intent to produce divrei kedusha. However, recent
authorities prohibit this practice. In Sivan 5750/June ’90, an open letter
signed by the poskei hador warned that advertisements, invitations,
receipts, signs, and raffle tickets should not include pesukim or parts
of pesukim, except when the pasuk is written as part of literary
style, with no connection to its context.

We live in an age of proliferation of written material. Many
pamphlets have the positive value of spreading Torah. We must be careful to
show our honor to Hashem by treating pesukim and divrei Torah
with proper respect. May we always merit demonstrating Hashem’s honor in the
appropriate way!

The laws of Chodosh

By Rabbi Yirmiyohu Kaganoff

Question #1: New mitzvah?!

“When I was young, I do
not think I ever heard about a prohibition called chodosh, or that
something was yoshon. These days, I am constantly hearing these terms.
Do we now have a new mitzvah?”

Question #2: New\Old Visitor

“We have decided to stay
permanently in Eretz Yisrael, but we visit the United States a few times
a year. Do we need to be concerned about chodosh when we visit?”

The Basics

Before addressing the issue
underlying both questions, which is whether the prohibition of chodosh
applies outside Eretz Yisrael, we must first study some essential
details of the mitzvah. The Torah teaches in parshas Emor:

“Bread, sweet flour made from
toasted kernels, or the toasted kernels themselves, may not be eaten until that
very day – until you bring the offering to your G-d. This is a law that you
must always observe throughout your generations in all your dwelling places” (Vayikra
23:14). “That very day” refers to the second day of Pesach, the day that
the korban omer, the “offering” mentioned in the pasuk, is
brought. (This is the same day that we begin counting the omer, a
practice we continue until Shavuos.)

The Mishnah (Menachos
70a) explains that this mitzvah applies only to the five species that we
usually categorize as grain, which Rashi (Pesachim 35a) defines
as wheat, barley, spelt, oats and rye. The Gemara (Menachos 70b)
demonstrates that the laws of chodosh apply to the same varieties of
grain that can become chometz.

What Permits the New Grain?

We should note that the Torah
mentions two different factors that permit the new grain – it “may not be eaten
until that very day – until you bring the offering to your G-d.” This seems to
be a bit contradictory. What permits the new grain, the day or the offering
that transpires in the course of the day?

Will It be Brought?

The Gemara (Menachos 68a)
concludes that it depends on whether a korban omer will be offered that
particular year. Until the Beis Hamikdash was destroyed, a korban
omer was brought annually, and offering this korban permitted the
new grain, thereby fulfilling “may not be eaten… until you bring the offering
to your G-d.” After the Beis Hamikdash was destroyed, it is the day
that permits the new grain.

There is a further question:
When there is no korban omer at what point during the day does the new
grain become permitted?

The Gemara quotes a
dispute concerning this fact, whether, is it the beginning of the day or its
end. The Gemara concludes that even those who permit the new grain at
the beginning of the day, this is only min haTorah, but they agree that miderabbanan
the new grain is not permitted until the day ends (Sukkah 41b).

“New” Grain versus
“Old” Grain

This new grain is called chodosh,
literally, new. Once Pesach passes, the grain is called yoshon,
old, even though it may have been planted only a few days before. The
promotion from chodosh to yoshon transpires automatically on the second
day of Pesach – all the existing chodosh becomes yoshon
grain on that day, even that which is still growing. The only requirement is
that by then the grain has taken root. Thus, designating the grain as
“old” does not mean that it is either wizened or rancid. Grain
planted in the late winter or early spring often becomes permitted well before
it even completed growing. On the other hand, grain that took root after
the second day of Pesach is categorized as “new” grain that
may not be eaten until the second day of the next Pesach, the following
year.

How Do We Know That It Is
Newly Rooted?

Since most of us spend little
time subterraneanly, how are we to know when the newly planted seeds decided to
take root? This question is already debated by the Tanna’im. The halachic
authorities dispute whether we assume that seeds take root three days after
planting or not until fourteen days after planting. If we assume that they take
root in only three days, then grain planted on the thirteenth of Nisan
is permitted after the sixteenth. This is because the remaining part of the
thirteenth day counts as the first day, and the fifteenth day of Nisan
(the first day of Pesach) is the third day, and we therefore assume that
the new grain rooted early enough to become permitted. However, grain that was
planted on the fourteenth, Erev Pesach, is forbidden until the following
year (Terumas Hadeshen #151; Pischei Teshuvah, Yoreh Deah 293:4,
5; Aruch Hashulchan).

According to those who conclude
that it takes fourteen days to take root, the grain that is planted on the
thirteenth does not become permitted until the next year. In addition, any
grain planted on the third of Nisan or afterwards will not be permitted
until the coming year, whereas that planted on the second of Nisan
becomes permitted. We count the second of Nisan as the first day, which
makes the fifteenth of Nisan the fourteenth day, and the grain took root
early enough so that the sixteenth of Nisan permits it (Nekudos
Hakesef; Dagul Meirevavah; Shu”t Noda Biyehudah 2:Orach
Chayim:84).

What’s New in Chutz
La’aretz?

Now that we understand some
basic information about chodosh, we can discuss whether this mitzvah
applies to grain growing outside Eretz Yisrael. Following the general
rule that agricultural mitzvos, mitzvos hateluyos ba’aretz, apply
only in Eretz Yisrael, we should assume that this mitzvah does not apply
to grain that grew in chutz la’aretz. Indeed, this is the position of
the Tanna Rabbi Yishmael (Kiddushin 37a). However, Rabbi Eliezer
disagrees, contending that the mitzvah applies also in chutz la’aretz.

This dispute is based on
differing interpretations of an unusual verse. When closing its instructions
concerning the mitzvah of chodosh, the Torah concludes: “This is
a law that you must always observe throughout your generations in all your
dwelling places.” Why did the Torah add the last words, “in all your
dwelling places”? Would we think that a mitzvah applies only in some
dwellings and not in others?

The Tanna’im mentioned
above dispute how we are to understand these unusual words. Rabbi Eliezer
explains that “in all your dwelling places” teaches that this prohibition, chodosh,
is an exception to the rule of mitzvos hateluyos ba’aretz and applies to
all your dwelling places – even those outside Eretz Yisrael.
Thus, although we have a usual rule that mitzvos hateluyos ba’aretz
apply only in Eretz Yisrael, the Torah itself taught that chodosh
is an exception and applies even in chutz la’aretz.

Rabbi Yishmael explains the words
“in all your dwelling places” to mean the mitzvah applies only after the land
was conquered and settled. As a result, he contends that chodosh indeed
follows the general rule of agricultural mitzvos and applies only in Eretz
Yisrael.

The New Planting

When a farmer plants his crops
depends on many factors, including what variety or strain he is planting,
climate and weather conditions, and even perhaps his own personal schedule. At
times in history, even non-Jewish religious observances were considerations, as
we see from the following incident:

The Rosh reports that,
in his day, whether most of the new grain was chodosh or yoshon
depended on when the gentiles’ religious seasons fell out. Apparently, in his
day sometimes the gentiles planted well before Pesach, and in those
years there was no chodosh concern, since the new grain became permitted
while it was still growing. However, there were years in which the gentiles
refrained from planting until much later, and in those years the new grain was chodosh
(Shu”t HaRosh 2:1). In addition, they had a practice not to plant during
the xian holiday season that they call Lent. Sometimes Lent fell during Pesach
and the xians planted before, and sometimes it fell earlier and they planted
after Pesach, in which case there was a chodosh problem. We therefore
find the rather anomalous situation in which the Rosh needed to find out
exactly when the gentiles observed their religious month to know whether the
grain was chodosh or yoshon.

What is New in Agriculture?

But one minute — the Rosh
lived in Europe, first in Germany and then in Spain. Why was he concerned about
chodosh? Should this not be an agricultural mitzvah that does not apply
to produce grown outside of Eretz Yisrael? From the citation above, we
see that the Rosh ruled that chodosh is prohibited even in chutz
la’aretz. The Rosh is not alone. Indeed, most, but not all, of the Rishonim
and poskim conclude that chodosh applies to all grain regardless
of where it grows, since we see from the Gemara that chodosh was
practiced in Bavel, even though it is outside Eretz Yisrael (Menachos
68b). However, notwithstanding that the Rosh, the Tur and the
Shulchan Aruch all prohibit chodosh grown in chutz la’aretz,
the traditional approach among Ashkenazic Jewry was to permit the use of new
grain. Why were they lenient when most authorities rule like Rabbi Eliezer that
chodosh is prohibited even outside Eretz Yisrael?

Later authorities suggest
several reasons to permit consuming the new grain.

Doubly Doubtful

Many authorities permitted the
new grain because the new crop may have been planted early enough to be
permitted, and, in addition, the possibility exists that the available grain is
from a previous crop year, which is certainly permitted. This approach accepts
that chodosh applies equally in chutz la’aretz as it does in Eretz
Yisrael, but contends that when one is uncertain whether the grain
available is chodosh or yoshon, one can rely that it is yoshon.
Because of this double doubt, called a sefeik sefeika, many major
authorities permitted people to consume the available grain (Rema, Yoreh
Deah 293). However, we should note that this heter is dependent on
available information, and these authorities agree that when one knows that the
grain being used is chodosh one may not consume it.

The Rosh accepted this
approach, and was careful to monitor the planting seasons so as to ascertain
each year whether the grain was planted in a time that caused a chodosh
issue. In years that there was a chodosh problem, he refrained from
eating the new grain – however, it is interesting to note, that he was
extremely careful not to point out his concerns to others. He further notes
that his rebbe, the Maharam, followed the same practice, but said
nothing about this to others. Thus, we see that some early gedolim were
strict for themselves about observing chodosh but said nothing to others
out of concern that they would be unable to observe chodosh. This
practice was followed in the contemporary world by such great luminaries as Rav
Yaakov Kamenetsky, who was personally stringent not to eat chodosh, but
was careful not to tell anyone, even family members, who followed the lenient
approaches that I will soon share.

Another Heter

Other authorities permitted the
chutz la’aretz grain, relying on the minority of early poskim who
treat chodosh as a mitzvah that applies only in Eretz Yisrael (Taz;
Aruch Hashulchan). This is based on a Gemara that states that when
something has not been ruled definitively, one may rely on a minority opinion
under extenuating circumstances (Niddah 9b).

This dispute then embroils one
in a different issue: When the Gemara rules that under extenuating
circumstances one may rely on a minority opinion, is this true only when
dealing with a rabbinic prohibition, or may one do so even when dealing with a
potential Torah prohibition. The Taz and Aruch Hashulchan, who
permitted chodosh for this reason, conclude that one may follow a
minority opinion even when dealing with a potential Torah prohibition. The Shach
rejects this approach, and concludes that one must be stringent when one knows
that the grain is chodosh (Nekudos Hakesef. See also his Pilpul
Behanhagos Horaah, located after Yoreh Deah 242; cf. the Bach’s essay
on the same topic, published in the back of the Tur Yoreh Deah, where he
rules leniently on this issue.)

The Bach’s Heter

Another halachic basis
to permit use of the new grain is that chodosh applies only to grain
that grows in a field owned by a Jew, and not to grain grown in a field owned
by a non-Jew. Since most fields are owned by gentiles, one can be lenient when
one does not know the origin of the grain and assume that it was grown in a
gentile’s field, and it is therefore exempt from chodosh laws. This last
approach, often referred to simply as “the Bach’s heter,” is the basis
upon which most Ashkenazic Jewry relied.

We may note that the Rosh,
quoted above, rejects this heter, and that Tosafos (Kiddushin 37a
end of s.v. kol), the Tur and the Shulchan Aruch also
reject this approach. Similarly, the above-quoted responsum from the Rosh
explicitly rejects this logic and contends that chodosh applies to grain
grown in a gentile’s field.

Nevertheless, common custom
accepted this the heter that grain grown in a non-Jew’s field is exempt
from chodosh; even many gedolei Yisroel accepted this approach.
The Bach notes that many of the greatest luminaries of early Ashkenazic
Jewry, including Rav Shachna and the Maharshal, were lenient regarding chodosh
use in their native Europe. He shares that as a young man he advanced his
theory that chodosh does not exist in a field owned by a gentile to the
greatest scholars of that generation, and that they all accepted it.

The Bach himself further
contends that although the Rosh in his responsum rejected this approach,
the Rosh subsequently changed his mind, and in his halachic code,
which was written after his responsa (see Tur, Choshen Mishpat, end of
Chapter (72, he omits mention that the prohibition of chodosh
applies to gentile-grown grain.

Thus, those residing in chutz
la’aretz have a right to follow the accepted practice, as indeed did many,
if not most, of the gedolei Yisrael. However, others, such as the Mishnah
Berurah, rule strictly about this issue.

Until fairly recently, many rabbonim
felt that those who are strict about the prohibition should observe the law of chodosh
discreetly. Some contend that one should do so because they feel that observing
chodosh has the status of chumrah, and the underlying principle
when observing any chumrah is hatznei’ah leches – they should be
observed modestly. (See Michtav Mei’eliyahu Volume 3, page 294.) Others
feel that the practice of being lenient was based on an extenuating
circumstance that is no longer valid, since yoshon is fairly available
in most large Jewish communities, and that, on the contrary, we should let
people be aware so that they can observe the mitzvah.

North American Hechsherim

The assumption of virtually all
hechsherim is that unless mentioned otherwise, they rely on the halachic
opinion of the Bach. Many decades ago, Rav Aharon Soloveichek pioneered
his own personal hechsher that did not follow either the heter of
the Bach or that of the Taz and the Aruch Hashulchan. He
further insisted that the yeshivos that he served as Rosh Yeshivah
serve exclusively food that did not rely on these heterim. Today, there
are a few other hechsherim that follow this approach, whereas the
majority of North American hechsherim accept the heter of the Bach.

With this background, we can
now address the first question that began our article. “When I was young,
I do not think I ever heard about a prohibition called chodosh, or that
something was yoshon. These days, I am constantly hearing the term. Do
we now have a new mitzvah?”

The answer is that the mitzvah
is not new. When you were young, most halachic authorities either felt
that one could rely on the opinion of the Bach, or felt that one should
keep the topic quiet. Today, many feel that one may and should advertise the
availability of yoshon products.

In addition, there is
interesting agricultural background to this question. At one point in history,
the flour commonly sold in the United States was from the previous year’s crop,
and was always yoshon. Rav Yaakov used to monitor the situation, and
when the United States no longer followed this practice, he began to freeze
flour so that he would have a supply during the winter and spring months when chodosh
is a concern.

In the spring and early summer,
there is no concern about chodosh in the United States, since all fresh
grain products then available became permitted on the sixteenth of Nisan.
Usually, the earliest chodosh products begin coming to market is
midsummer, and some products do not appear until the fall.

Visitors from Abroad

At this point, we can begin to
answer the second question: “We have decided to stay permanently in Eretz
Yisrael, but we visit the States a few times a year. Do we need to be
concerned about chodosh when we visit?”

As I mentioned above, someone who lives in chutz la’aretz has the halachic right not to be concerned about observing chodosh on grain that grows in chutz la’aretz. The question is whether someone who has moved to Eretz Yisrael where the prevailing custom is to be stringent, and is now visiting chutz la’aretz has the same right. This matter is disputed, and I have discussed it with many poskim, most of whom felt that one should be machmir.

In Conclusion

In explaining the reason for
this mitzvah, Rav Hirsch notes that one of man’s greatest enemies is success,
for at that moment man easily forgets his Creator and views himself as master
of his own success and his own destiny. For this reason, the Torah created
several mitzvos whose goal is to remind and discipline us to always recognize Hashem‘s
role. Among these is the mitzvah of chodosh, wherein we are forbidden
from consuming the new grain until the offering of the korban omer,
which thereby reminds us that this year’s crop is here only because of Hashem
(Horeb, Section 2 Chapter 42). Whether one follows the Bach’s approach
to the chodosh laws or not, one should make note every time he sees a
reference to yoshon and chodosh to recognize that success is our
enemy, and that humility is our savior.