Category: Life Cycle

How Are We Mechaneich?

Question #1: Chinuch and Chanukah

Dr. Edward Ucater, Ed. D, asks me:

“I know that teaching requires a lot of dedication, but what does chinuch have to do with dedicating the mishkan, chanukas hamishkan?”

Question #2: One School Fits All?

This question was submitted by Dr. Cyrus Kologist, Ph. D:

“Why do so many schools require that you send them all of your sons or all of your daughters? Don’t different siblings sometimes thrive better in dissimilar educational environments?”

Origins of chinuch

Although the word chinuch is used in modern Hebrew to mean “education,” this is not the word’s correct translation. Teaching is limud or shinun — limud is the general word for “teaching” and shinun, which does not have a simple literal translation into English, means teaching something until the student knows it thoroughly. However, the root of the word chinuch appears in Tanach most frequently referring to the dedication of the Mishkan or of its vessels. Since it is difficult to “teach” these appliances, the word chinuch is usually translated in those contexts as dedicated and dedication. This leads us directly to our first question above, that of Ed Ucator. “I know that teaching requires a lot of dedication, but what does chinuch have to do with dedicating the mishkan, chanukas hamishkan?”

Rashi (Bereishis 14:14 and Devorim 20:5) explains that the word chinuch refers to a beginning. Other early commentaries emphasize that chinuch means to become accustomed to doing a particular activity (Rambam, Commentary to Mishnah Menachos 4:4; Rabbeinu Yonah and Metzudas Dovid, Mishlei 22:6). According to the Rambam (ad loc.), the primary meaning of the term chinuch is the training of people, and using the word chinuch in reference to items is a borrowed usage. Just as we say that chinuch is to accustom a person to perform certain activities, we “accustom” the utensils of the Beis Hamikdash to perform their jobs. Rav Hirsch adds that the word chinuch includes dedicating something for a lofty, holy purpose.

Chinuch does not mean book knowledge. It means training. And “training” means doing the mitzvos. Chanukas hamishkan and chanukas hamizbei’ach mean to use them for the first time.

Only twice in Tanach is the word chinuch used in reference to people, and only once in chumash. That place is in parshas Lech Lecha, where the Torah refers to Avraham’s followers as chanichav, “Those he had trained.” The other Biblical place where the word refers to people is in Mishlei, Chanoch lana’ar al pi darko; gam ki yazkin lo yasur mimenu, “Train the young man according to his way! Even when he gets older, he will not diverge from it” (Mishlei 22:6). These are the immortal words of Shlomoh Hamelech explaining the basics of Chinuch. All proper chinuch must be based on understanding the lessons of this pasuk and our Chazal. This verse functions both as a halachic and advisory directive on how to train youth, and also provides a guide to see that a child will develop and mature to fulfill his potential.

Understanding Mishlei

Let us see how the traditional commentators explain the pasuk, Chanoch lana’ar al pi darko. Among the classic commentaries, we find two basic approaches to understand what Shlomoh Hamelech was emphasizing.

(1) According to Rashi, the pasuk is simply an observation of human nature.

(2) According to most commentaries, the pasuk also includes a commandment. Allow me to explain the difference in translation:

Rashi’s approach

“However you train a young man according to his way, we know that when he gets older he will not diverge from it” (see Rashi ad loc.) The verse is not an instruction, but an observation, and applies whether one is taught to be good or to be bad. However someone is trained when young, this is the way he will likely act as an adult, provided that he enjoys the direction in which he is going. Rashi points out that at times a person could act inappropriately or even wickedly, as a result of having been given faulty education as a child. As a matter of fact, most people retain some shortcomings in their personality because they enjoyed pursuing undesirable behaviors as children and were not trained to act correctly.

Most authorities understand that Mishlei is providing instruction and not just observation (Metzudas Dovid, Yalkut Mei’am Lo’eiz, Hirsch, Malbim). The word “chanoch” in the pasuk is a command – this is how you are required to train your child! Train the young man according to his way!

His way

What does the pasuk mean by emphasizing al pi darko, according to his way? How do we do this correctly?

The requirement is to assess the specific strengths and needs of each particular child and to train him to serve Hashem in a way that fits his nature (Rabbeinu Yonah, Malbim, Hirsch). Thus, this adage establishes the most important criterion of Torah education – that each child is a different world – and that he must be trained and directed in his avodas Hashem keeping that in mind. Rabbeinu Yonah explains that darko means his unique path – and that the mitzvah of chinuch is to get him used to this path. Train him to follow the proper midos and practices that fit his personality, to develop and improve himself by doing things that are easy for him because they emphasize his tendencies and personality and they utilize his strengths (Rabbeinu Yonah). Darko means that these are things that come naturally to him and that he learns to do them because he wants to, not because he is forced (Meiri). Train him to do mitzvos that fit his nature and his desire (Meiri). This means that he does mitzvos without being disciplined, and the behavior pattern therefore becomes part of his nature (Meiri).

Based on the Gemara (Shabbos 156a), the Gra explains that one should identify the child’s personality traits, his mazel, and train him to use them for Torah. If you force him to squelch his mazel, to repress his natural penchants, the result is that, as soon as no one is watching, he will do what his mazel inclines him to do, without developing it to use for Torah. One whose mazel inclines him to bloodshed can be trained to become a mohel or a shocheit; these inclinations are trained to be used for mitzvos and other positive purposes. This makes him an oveid Hashem. However, if he is not trained to use these inclinations for mitzvos, he will use them for the opposite. The Gra compares this to Dovid Hamelech, whose nature was inclined toward violence, yet, because he was taught when young to use his nature to serve Hashem, he became the poet of Israel.

How to train

Some early authorities emphasize the following: If the child is gifted with skills important in Torah learning, do not train him in other things. However, if he is not a “learner,” train him in an appropriate trade (Yalkut Mei’am Lo’eiz). Again, this way he will learn to use “his way” in a Torah framework.

On the other hand, if you attempt to train a child for something that is against his nature, it will not last (Malbim; Hirsch). He may go through the motions of keeping mitzvos as long as an adult is supervising him closely. But once he is old enough to free himself from supervision, he will likely use his talents in a non-Torah or an anti-Torah direction.

Tailor-made chinuch

Clearly, there is no “one size fits all” approach to education. One must first identify the appropriate way to educate this particular child, and then provide it.

At times, I have been told that these rules apply only to parents, but not to schools and other chinuch mosados. Unfortunately, this is an error. These cardinal rules of chinuch apply to all chinuch situations without any exceptions. Chinuch must be tailored to the student or child, or it is not chinuch. Obviously, a school cannot create 500 learning programs for 500 students, but insisting that a child attend an educational program not suited for him or her violates chinuch and constitutes abuse of authority. No single method of education is suitable for all children. An education system that assumes that all children should be educated the same way is destined to fail for a large percentage of its students.

Like father?

A parent should recognize that, usually, a child shares the same interests and inclinations as his parent — but not always. Recognizing this requires much judgment and analysis (Yalkut Mei’am Lo’eiz). Even when the child’s approach to serve Hashem manifests itself in a different way from that of his parents, the goal of Torah education still remains that our children follow the example of their parents’ commitment to Torah values (Hirsch, Devorim 21:18).

It goes without saying that one should not pressure a child to follow the educational or life path of an older sibling. For those who disagree with me, I refer you to Rav Hirsch’s excellent essay at the beginning of parshas Tolados and also to Volume VII of his Collected Writings.

Life without luxury

Some extend the lessons of chanoch lana’ar to other areas. For example, even if one is fortunate to be wealthy, train your child to live without luxuries, since luxuries quickly become necessities (Yalkut Mei’am Lo’eiz). One very great talmid chacham praised his mother for having been careful not to buy him more than he needed. Although his parents were financially comfortable, and able to purchase him whatever he wanted, she was careful not to spoil him, though it would have been only natural for them to do so, all the more so since he was an only child. When, in adult life, he was faced with serious challenges, he was able to meet them and grow as a person and a talmid chacham, only because his parents had trained him to use his own strengths and not to rely on outside help when he was young (Yalkut Mei’am Lo’eiz, quoting the Maharam Chagiz).

A child should be taught to observe mitzvos out of joy and not out of fear of punishment. All this is part of the education that children should receive and see in the example provided by their parents (Hirsch, Devorim 21:18).

The most important part of chinuch is training in ahavas Hashem, loving G-d, and yiras Shamayim, fear of Heaven. The parents, themselves, must manifest these qualities. One can educate properly only by example.

Age appropriate

Certainly, all chinuch must be appropriate to the age of the child (Meiri; Yalkut Mei’am Lo’eiz). Expecting a child to sit at the Shabbos table when he is too young to do so is clearly a violation of chanoch lana’ar al pi darko, as is any other expectation that is unrealistic for a child of his age. One should start the training process slowly and gradually get a child in the habit of acting with the proper midos that are appropriate for his personality. He will learn to internalize these midos, and they will become part of him. Gradually, one can increase the requirements and lessons, and he will grow to absorb them (Yalkut Mei’am Lo’eiz).

Lana’ar

Mishlei emphasizes that we are educating a na’ar, a young man. Habits are easier to change when one is young, and training a child accomplishes a lot in his proper moral and ethical development. Speak to your child softly, and make sure that you are teaching him in a way that is appropriate to his temperament and to his age (Yalkut Mei’am Lo’eiz).

If we examine the halachos of the ben soreir umoreh in parshas Ki Seitzei, we see a very important lesson. As Rav Hirsch explains, the Torah regards the first three months after a boy turns thirteen as the critical age that determines his moral future. The Torah expects a young man to obey his parents and turn to spiritual values. For this reason, he is called a bar mitzvah — the son of the mitzvah duty assigned by Hashem. The Creator of man ordained that this period awaken within a child a spirit that inspires him to do enthusiastically what is morally noble (Commentary to Devorim 21:18).

Training adults

Notwithstanding that one should begin training a child when he is young, we should note that the word chinuch includes the training of adults. As we noted above, the one example of the use of the word chinuch in Chumash refers to those individuals whom Avraham Avinu developed and educated, who were adults when they came under his influence.

Chazal also refer to the obligation to train and influence one’s adult children (Kiddushin 30a).

When he gets older…

The entire pasuk in Mishlei reads, Chanoch lana’ar al pi darko gam ki yazkin lo yasur mimenu, “Train the young man according to his way! Even when he gets older, he will not diverge from it.” Having figured out the best approach in training each child for his goal, the long-term results should be that one sees the child develop into an adult who makes the decisions that are consistent with Torah values.

Torah chinuch

Although most of our discussion has revolved around explaining the pasuk in Mishlei, one should not think that the ideas of chinuch were first invented by Shlomoh Hamelech. Indeed, there are numerous places where the Torah itself teaches these lessons. For example, the mitzvah of the Hagadah on Seder night, transmitting the experience of yetzias Mitzrayim, the Exodus from Egypt, is mentioned four times in the Torah, each time in a variant way – because different children have different needs. As the compiler of the Hagadah demonstrates, offering alternate approaches teaches that we are to take into consideration the individual needs of each child.

I will share with you that, upon this basis, I recently answered a question that had bothered me for years. Four different times, the Torah describes the mitzvah of Hagadah, teaching your son about the Exodus from Egypt on the night of Pesach, and this detail is explained during our Seder with the story of the four sons. Yet, there is very little halachic literature explaining how one should fulfill this mitzvah. Compare this to other mitzvos for which there is extensive discussion among the halachic authorities defining the responsibility of the mitzvah.

My suggested answer is that there cannot be rules for the mitzvah of Hagadah. Since it is a mitzvah of chinuch, it must be tailor-made to the needs of the child involved and, therefore, formal rules are downplayed.

Ben soreir umoreh

We mentioned above that the purpose of the Torah’s parsha of ben soreir umoreh is to teach many of the rules of education. In this context, I encourage our readers to read Rav Hirsch’s comments on the parsha and his essays on education in Volume 7 of the Collected Writings. There, he analyzes many of the halachos of ben soreir umoreh, and, in his typical style, he develops brilliant insights into proper Torah education.

This teaches a very deep lesson in education: “These words hold the key to the secret of proper child-raising. A father and a mother united as one in their love for their child and in complete agreement on the principles by which he should be raised… But such unity can be achieved only if the child’s father and mother are united also in their own subordination to the Will of G-d. If they view the sacred function of child-rearing as their most sacred task, to be performed for Hashem and in keeping with His holy Will… If His judgments serve as a matter of course to resolve any disagreements” (Collected Writings of Rabbi Samson Raphael Hirsch, Volume 7, Page 348).

Conclusion

It is incumbent on any educator to study the commentaries to the pasuk and practice them. I find it highly surprising that many people who consider themselves educators have never bothered to study the verse Chanoch lana’ar al pi darko with the classic commentators. In fact, one does not require the classic commentators; but a simple reading of the pasuk sets every parent and educator on his or her way.

Is Your Kesubah Kosher?

Situation #1: Custom-made

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

Situation #2: Silk-screen

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

Situation #3: Standard Hebrew Bookstore

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

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

Introduction to the kesubah

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

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

The kesubah is a legal document

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

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

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

Documentary details

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

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

Halachic details involved in writing a kesubah

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

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

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

May one initial a correction?

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

How does one correct a kesubah?

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

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

Does a mistake automatically invalidate a kesubah?

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

Incorrectly corrected

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

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

What if the names are illegible?

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

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

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

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

What about using a standard printed kesubah?

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

Situation #3:

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

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

Correcting a kesubah

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

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

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

Datelining a kesubah in the wrong place

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

What if we misspelled one of the names?

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

Should we include our family names?

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

A humorous error

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

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

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

 

[i] Shulchan Aruch, Even HaEzer 66:3

[ii] Rambam, Hilchos Ishus 15:19

[iii] Kesubos 48a, 61a

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

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

Shu’t Tashbeitz 2:182; 3:301

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

[vii] Even HaEzer 66:6

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

[ix] Gittin 11a

[x] See Rama, Even HaEzer 126:1

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

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

[xiii] Shulchan Aruch, Choshen Mishpat 42:4

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

[xv] See Shach 44:23

[xvi] Choshen Mishpat 44:1

[xvii] Choshen Mishpat 44:5, 9

[xviii] Rama, Choshen Mishpat 44:11

[xix] Choshen Mishpat 44:1, 5

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

[xxi] Choshen Mishpat 43:22

More on Chinuch

Question #1: His own Lulav?

father-and-son-with-lulav“Am I required to purchase for my son his own lulav?”

Question #2: Three-year old Tzitzis?

“At what age should my son start wearing tzitzis?”

Question #3: Minor Kohanim

“I know that one must be very careful that a kohen, even an infant, does not become contaminated with the tumah of a meis. Yet I rarely see a child under bar mitzvah duchen. Is this consistent?”

Question #4: Kiruv Kohanim

“We are in the process of being mekarev a fellow who is a kohen. He enjoys joining us for our family outings, and we love to visit museums. Could this present potential halachic issues?”

Answer:

In the beginning of parshas Tolados, the Torah mentions the birth and upbringing of Yaakov and Eisav. In what many consider the most controversial passage in his commentary on Chumash, Rav Hirsch criticizes the education that Eisav received. This provides an opportunity to continue our discussion on some of the aspects of the mitzvos of chinuch that we began a few weeks ago.

In this context, we find the following passage of Gemara:

“A minor who knows how to shake a lulav in the way that halachah requires is obligated to fulfill the mitzvah of lulav; one old enough to put on a talis properly is obligated in tzitzis; if he is old enough to protect his tefillin, his father must purchase for him tefillin; when he knows how to talk, his father teaches him Torah and the Shma” (Sukkah 42a; see also Arachin 2b and Tosefta, Chagigah Chapter 1).

We see from the Gemara that we should begin teaching a child Torah and training him to observe mitzvos at the earliest age possible for him to perform the mitzvah correctly. One of the first lessons of mitzvas chinuch that we see here is that the mitzvah is not simply to demonstrate to a child a few times before his bar mitzvah how the mitzvah is performed. The mitzvah is to train him from when he begins to be able to perform the mitzvah properly, and we then begin to encourage him to observe the mitzvos. Thus, as soon as he begins to speak, we should have him recite pesukim. When old enough to wear a talis properly, we should train him in the mitzvah of tzitzis, and when old enough to perform the mitzvah of lulav properly, we should train him to observe that mitzvah.

Why are tefillin different?

When the Gemara mentions that a child should begin to observe mitzvos, it teaches that his father is obligated to purchase tefillin for his son, but it does not say that the father is required to buy either tzitzis or a lulav for his son. This implies that only in the case of tefillin is the father required to make a purchase, but not for the mitzvos of tzitzis or lulav. Why are tefillin different?

The answer is that someone cannot observe the mitzvah of tefillin properly without owning his own pair, and it is obvious that a child would not have the means with which to purchase tefillin. Therefore, the mitzvah of chinuch requires the boy’s father to purchase a pair of tefillin for him.

However, Chazal did not require the father to purchase the four species or tzitzis for his son. Why not? In the case of the four species, the son should be able to perform the mitzvah by using his father’s, and it is therefore unnecessary to require the father to purchase his son a set (Tosafos, Arachin 2b).

What about tzitzis?

Regarding the mitzvah of tzitzis, Tosafos rules that, even for adults, Chazal did not require one to purchase a four-cornered garment in order to fulfill the mitzvah. Rather, someone wishing to wear a four-cornered garment is required to have tzitzis attached to it. In the days of Chazal, one did not purchase a garment with tzitzis, or even purchase tzitzis threads to place on a garment. Clothing was made at home, and tzitzis threads, which require being manufactured for the sake of fulfilling the mitzvah, were spun at home. Therefore, there was no requirement to purchase tzitzis for a child, but, that when the household provided all its members with home-made clothing, it provided the men-folk, including those under bar mitzvah, with four-cornered garments and spun tzitzis to attach to them (Tosafos, Arachin 2b).

“Protecting” tefillin

The Gemara rules that when a child is old enough to “protect his tefillin,” we should purchase for him a pair of tefillin. What does it mean that he is old enough to “protect his tefillin”? Some understand this to mean that he understands that he should not bring his tefillin into the bathroom (Rashi, Sukkah 42a). Others understand this to mean that he can keep a guf naki, meaning that he is old enough to be careful not to release flatulence while wearing tefillin, which is prohibited because of bizuy mitzvah, treating mitzvos with disdain (Rashi, Brachos 5b; Shulchan Aruch, Orach Chayim 37:2). There is obviously a major difference between these two approaches: A fairly young child can be entrusted not to bring tefillin into a bathroom, whereas someone considerably older may still have difficulty maintaining control and awareness to remove his tefillin when he feels that his stomach is somewhat unsettled.

Contemporary practice

Following the second approach mentioned above, which is the conclusion of the Shulchan Aruch, common practice today is that we do not have a child wear tefillin until he is almost the age of bar mitzvah. This is because we are concerned that he will be unable to keep a guf naki. Therefore, we wait until the child is almost the age that he is required min haTorah to wear tefillin, and only then do we train him how to wear tefillin.

Minor kohanim

At this point, let us address one of our opening questions.

“I know that one must be very careful that a kohen, even an infant, does not become contaminated with the tumah of a meis. Yet I rarely see a child under bar mitzvah duchen. Is this consistent?”

This question needs to be dealt with as two different headings. The first topic is the prohibition of causing someone to violate a halachah. The second topic is understanding how the mitzvah of chinuch applies to the specific mitzvah of birkas kohanim. I will first discuss the topic of causing a minor kohen child to become tamei.

Causing someone to violate the Torah

It is prohibited min haTorah to be the direct cause of a child violating a prohibition of the Torah (Yevamos 114a). For example, providing a child with non-kosher food or bringing a minor kohen into a house that contains tumas meis causes the child to violate what the Torah says. The Torah prohibits doing this, even when the child himself is too young to be responsible to fulfill the mitzvah and is not commanded to observe it. As a matter of fact, this law applies min hatorah even to a newborn (Magen Avraham 343:2). It also applies even when a child is, unfortunately, being raised in a non-observant way. Therefore, it is forbidden for someone who has a babysitting job to feed a Jewish child non-kosher food, or to serve non-kosher food to a Jewish child in a school cafeteria. Similarly, it is prohibited to dress a baby in a blanket or clothes made of shatnez (Shu”t Beis Yehudah, Yoreh Deah #45).

Tumah is worse

In the particular instance of causing a kohen to become tamei, there is an additional violation, specific to this mitzvah. The Rambam rules that it is forbidden for someone to make an adult kohen tamei and, at times, this may involve violating a prohibition min haTorah (Rambam, Hilchos Aveil 3:5). The Rambam rules: “If the kohen is unaware that what he did is forbidden, and the person who made him tamei knows that it is, then that person violates the lo saaseh. If the kohen knows that it is forbidden, then the other person violates only lifnei iveir lo sitein michshol, do not place a stumbling block before a blind person (Vayikra 19:14).” Chazal interpret this pasuk to mean that one may not give someone bad advice, nor cause him to violate a prohibition.

Kiruv kohanim

Thus, we can now also address another of our opening questions. “We are in the process of being mekarev a fellow who is a kohen. He enjoys joining us for our family outings, and we love to visit museums. Could this present potential halachic issues?”

In a different article published in this column many years ago, I discussed at length the shaylos that exist concerning whether a kohen may visit a museum. (A copy of that article, entitled Finding a Compatible Place for an Extended Family Outing, is available on the website RabbiKaganoff.com.) Based on our current discussion, we are now aware that the same issues exist if I cause a kohen to enter a museum. Thus, taking a nephew who is a kohen on a family trip to a museum may involve the same halachic problem, and I should consult my rav or posek. Bringing our friend the kohen involves the same halachic issues, notwithstanding the fact that he, himself, has no concerns about the matter. As we saw above in the Rambam, it is actually a more serious problem for me when I know that the kohen is not concerned about the prohibition.

What if the child does it on his own?

The Gemara (Yevamos 113b-114a) relates that Rav Yitzchak bar Bisna lost the keys of the beis medrash in a reshus harabim, an area into and from which it is prohibited min haTorah to carry on Shabbos. Thus, there was no way to unlock the doors and use the beis medrash on Shabbos. Rabbi Pedas suggested that Rav Yitzchak bar Bisna bring some children to play in the area where the keys were lost, hoping that one of them might find the keys and bring them to the beis medrash. According to Rabbi Pedas, one is not obligated to prevent a child from violating a mitzvah of the Torah, provided that one does not ask or enable the child to do so. In other words, although it is prohibited to cause a child to violate a mitzvah, we have no obligation to prevent the child from violating a mitzvah, nor are we prohibited from placing a child in a place where he may choose to violate a mitzvah on his own.

The rishonim ask why the mitzvah of chinuch does not require preventing the child from violating Shabbos. Here I will present three widely-held approaches to answering this question.

Under age

One answer is that Rabbi Pedas’ rule that we are not required to prevent children from choosing to violate prohibitions applies only when they are very young — meaning that the child is below the age of chinuch, when we are required to educate him about the mitzvah (Tosafos, Shabbos 121a, s.v. shema). Thus, Rav Yitzchak bar Bisna brought only fairly young children to play in the area where the keys were lost. It would be prohibited, according to this approach, to cause older children who understand that we do not carry on Shabbos to carry the keys in a reshus harabim. This approach is quoted by the Rema (Orach Chayim 343).

Mitzvos Asei

A second approach to answer this question is more lenient, contending that the mitzvah of chinuch applies only to positive mitzvos, but does not apply to prohibitions (Rabbi Eliezer miMetz, the author of the Sefer Yerei’im, quoted by Tosafos Yeshanim, Yoma 82a; the same position is quoted by several rishonim to Yevamos 114a). According to this understanding, there are three levels:

  1. We are prohibited min haTorah from directly causing a child to violate a prohibition.
  2. We are required miderabbanan to train a child to perform mitzvos.
  3. There is no requirement at all to prevent a child from performing violations of the Torah that a child is doing on his own.

Isn’t this counterintuitive?

Is this approach not counterintuitive? In general, prohibitions are treated more strictly than positive mitzvos, and the punishments for violating them are usually more severe (Terumas Hadeshen #94). Why, in this instance, is the positive mitzvah being treated more stringently than the prohibition?

Some explain that the reason is because performance of a positive mitzvah usually requires more effort, and these mitzvos will be more difficult for him to observe when he becomes an adult. Therefore Chazal required the father to make certain that his child is habituated to perform mitzvos. They did not require chinuch on lo saaseh prohibitions, since they are passive (Terumas Hadeshen #94).

Only the father

I promised that I would share with you three approaches to explain how Rabbi Pedas permitted placing children somewhere where they will likely end up performing melachah activity on Shabbos. Is there not a mitzvah of chinuch?

A third approach to answer this question understands that when Chazal introduced the mitzvah of chinuch, they obligated the father, but no one else, to train a child to perform mitzvos. Since other people have no obligation of training a child to perform mitzvos, they are permitted to place a child somewhere where he may, of his own volition, violate a prohibition (Tosafos Yeshanim, Yoma 82a; Rambam, Hilchos Maachalos Asuros 17:28). This last approach is the one followed by the Shulchan Aruch (Orach Chayim 343:1), who writes: “If a child is eating non-kosher, beis din is not commanded to prevent him, but his father is commanded to rebuke him and prevent him.” The Rema cites this opinion also.

Remember, as we taught above, that all opinions prohibit directing a child to violate a prohibition. What is permitted is placing him in a position where he will, of his own volition, violate a prohibited activity.

In conclusion, we are prohibited from causing a male child to become tamei from contact with a corpse. According to the conclusion of the Shulchan Aruch, you are not obligated to prevent a child from making himself tamei, unless the child in question is your son.

What about duchening?

At this point, let us return to the question raised above: “I know that one must be very careful that a kohen, even an infant, does not become contaminated with the tumah of a meis. Yet I rarely see a child under bar mitzvah duchen. Is this consistent?” Now, that we have explained the background to the first part of the question, let us discuss the second part: Our questioner reports not seeing many minor kohanim perform the duchening.

The Mishnah (Megillah 24a) states that a child does not duchen, which Rashi explains is  because it is not respectable for a congregation to have a child bless them. Our question is whether the Mishnah means that a child should never duchen, or does it mean that he should not duchen when he is unaccompanied by an adult kohen? The issue being debated is whether the lack of dignity for the tzibur is any time a child is blessing the congregation or only when he does so by himself.

This issue is the subject of a dispute among early rishonim. Rashi (Sukkah 42a) rules that a child should never duchen, whereas Tosafos contends that it is fine for a child to duchen, as long as he does so together with adult kohanim (Tosafos, Megillah 24a s.v. Ve’ein). According to the latter opinion, it would follow that there is a mitzvah to train a minor kohen to duchen, just as there is a mitzvah to train him to perform other mitzvos. However, according to Rashi, since Chazal ruled that it is not a kavod to have a child duchen, then, clearly, there is no mitzvah of chinuch to train him to duchen. There were many places in Europe where the custom was to follow Rashi in this law. This is why our questioner has rarely seen a minor duchen. However, this is by far not a universally held practice. I have been in many places where I have seen kohanim who are under bar mitzvah duchen alongside adult kohanim.

Conclusion – Avraham and chinuch

We now know that there are specific halachic rules directing us how to educate and train  children in the observance of mitzvos, and also about our interactions that might cause an adult to violate a prohibition of the Torah. It is interesting to note that the only verse in the Torah that uses the word chinuch in relation to people is in parshas Lech Lecha, and there the verse refers to training and teaching adults to perform mitzvos. There the Torah teaches about Avraham that, in order to save his nephew Lot, vayarek es chanichav, literally, he emptied out those whom he had trained. As Rav Hirsch points out, the situation of saving Lot required Avraham to change direction from what he had been doing heretofore to develop his following to serve Hashem. Prior to this point, Avraham had taken his following, his disciples, and moved them away from civilization, into the mountains, so that they would not be influenced by the nearby social environment of Canaan, which was antithetical to proper values. Avraham’s previous chinuch had involved isolationism to grow the spirituality of his students. At this moment, serving Hashem required Avraham to expose his following to improper mores, albeit only temporarily, for the sake of saving Lot.

 

It’s About Time

The Gemara that discusses this topic includes a reference from this week’s parsha.

It’s About Time

sunsetQuiz Question #1:

Mrs. Yunger gave birth to two healthy twin boys, each of whom had his bris on the first day that halacha mandates, yet the younger Yunger had his bris several days earlier than his older brother. How can this happen?

Question #2:

Moshe Litvak asks me: “I have often wondered why my chassidishe brother-in-law davens mincha after sunset, when the Mishnah Berurah rules that one should not daven this late!”

Question #3:

“My sister and I live in the same yishuv (community), and the nearest hospital is Laniado, in Netanya. She went into labor on Shabbos and left for the hospital. Immediately after Shabbos, I phoned the hospital to find out how she was and whether she had a boy or a girl, and was told by the gentile receptionist that she could not put the call through to my sister until after the time ‘Rabbeinu Tam’ arrives, which would not be for another half an hour. Why was the gentile receptionist so frum?”

Why Did the Younger Yunger have an Earlier Bris?

Although a bris that transpires on the eighth day of a child’s life supersedes Shabbos, when a baby is born during bein hashemashos, a halachic “twilight zone” in which it is uncertain whether it is part of the previous day or the next one, his bris cannot be conducted on Shabbos. The older Yunger was born during bein hashemashos on Friday evening. Thus, his bris could not be performed on either Friday or Shabbos, and his bris was postponed to Sunday. Moreover, if one or two days of Yom Tov immediately followed Shabbos, then his bris would be delayed until after Yom Tov. However, his younger brother was born at a time that was certainly Shabbos, and therefore, his bris took place on Shabbos. Thus, younger Yunger had his bris before older Yunger.

When is Twilight?

When is bein hashemashos?

We all are aware that the Jewish date begins at night. But at what exact moment does one day end and another begin? Do we know the precise instant when one day marches off into history, and its successor arrives with its banner unfurled?

A verse in the book of Nechemiah might help resolve this question. There it describes the unenviable circumstances in which the Jews were rebuilding the Second Beis Hamikdash, while protecting themselves from the enemies who were determined to thwart its erection: And we were continuing the construction work from daybreak until the stars come out [tzeis hakochavim] while half our men were holding spears… and at night we were on guard, while in the day we could proceed with the work (Nechemiah 4:15-16). Nechemiah implies that “night” begins when the stars emerge, and the time of dusk until they become visible is still considered the previous day (see Berachos 2b; Megillah 20b).

However, we still require more definition. Which stars? Can we pinpoint the moment that the stars come out, since the stars of the firmament do not all become visible at the same time?

Additional confusion is caused by a different verse that implies that the day ends when the sun sets, as the Torah (Vayikra 22:7) proclaims: And when the sun sets, he shall become pure, stating that the final stage of purification from some types of tumah is the sunset after immersion in a mikveh. However, at sunset no stars are yet visible. Thus, this verse implies that the changing of the day transpires at sunset, not when the stars appear (see Berachos 2b).

What a Phenomenal Dusk!

Is there any discussion in the Gemara that can “shed light” on our question? Indeed, there are several passages, and much literature is devoted to understanding them. One passage (Shabbos 34b) describes certain celestial phenomena that define when bein hashemashos begins and when it ends. The commentaries debate exactly what occurrences are being described, and, unfortunately, we derive little usable information from this passage.

When Three Stars Appear

Another passage indicates that the end of the day is determined by the appearance of stars. When one star appears, it is still day. When two appear, it is bein hashemashos, and when three appear, it is night. Not large stars that appear even in the day, and not small stars that first appear at night, but middle-sized stars (Shabbos 35b).

Now the job appears easy. Let us look at the darkening firmament this coming evening and count stars!

I am sure that there have been times when you have tried. Ever spent Shabbos on a camping trip and attempted to determine the end of Shabbos by stargazing? How did you decide which stars are considered “small,” “large” and “middle-sized”? And this is assuming that one does not need to deal with light pollution!

Perhaps, locating a Gemara discussion that indicates more objective criteria, such as units of time, may be more helpful in our search to determine the end of day. Does such a discussion exist in the Gemara?

Yes, it does — and not only one passage, but two. However, the two passages appear contradictory!

Conflicting Gemara passages

The Gemara in Pesachim (94a) states that the time between shekiyah, a word usually translated as sunset, and tzeis hakochavim equals four mil, which we will assume is 72 minutes. (This concurs with the more obvious way of explaining the opinion of the Terumas Hadeshen [#123] and the Shulchan Aruch [Orach Chayim 459:2; Yoreh Deah 69:6 with Shach] that a mil used as a unit of time equals 18 minutes.) However, a different passage of Gemara, in Mesechta Shabbos (34b), quotes a dispute in which Rabbah states that nightfall occurs three-quarters of a mil, or 13½ minutes, after shekiyah, and Rabbi Yosef rules that it transpires a bit earlier, two-thirds of a mil, or 12 minutes, after shekiyah. Obviously, we need to explain why one Gemara states that nightfall occurs 72 minutes after shekiyah, and another states that it occurs only 12 or 13½ minutes after shekiyah!

Rabbeinu Tam’s explanation

Among the many resolutions to this conundrum, the two most commonly quoted are those of Rabbeinu Tam and the Gr”a. Rabbeinu Tam contends that these two passages of Gemara are using the word “shekiyah” to refer to two different phenomena which occur about an hour apart. The Gemara in Pesachim uses the term shekiyah to mean sunset — when the sun vanishes beyond the western horizon. Rabbeinu Tam refers to sunset as techilas shekiyah, literally the beginning of shekiyah. However, when the Gemara in Shabbos refers to “shekiyah,” it does not mean sunset, but a point in time about an hour later when virtually all light of the sun’s rays is dissipated from earth. Rabbeinu Tam refers to this later time as sof shekiyah, literally the end of shekiyah, and, in his opinion, until sof shekiyah occurs it is still halachically day, notwithstanding the setting of the sun and the appearance of hundreds of stars in the firmament. All these stars are considered “large stars” whose appearance does not demonstrate that the day has ended. Only at sof shekiyah does it become bein hashemashos, the time when we are uncertain whether it is day or night. At sof shekiyah, bein hashemashos has begun, meaning that now two, but not three, “middle-sized” stars are visible, and we await the appearance of the third “middle-sized” star to know that it is definitely night. (However, cf. Minchas Kohen for a variant understanding of Rabbeinu Tam’s position.)

Since, according to Rabbeinu Tam, it is definitely still day until about an hour after sunset, many authorities contend that there is no problem with davening mincha considerably after sunset. (However, note that Rabbeinu Yonah understands the opinion of Rabbeinu Tam differently from what I just explained.) Thus, there are communities who base themselves on this approach and daven mincha well after sunset.

Rabbeinu Tam and a friday night birth

According to Rabbeinu Tam, a baby born 58 minutes after sunset on Friday evening, and certainly any time earlier, was born halachically on Friday, and not on Shabbos. In Rabbeinu Tam’s opinion, this baby’s bris takes place the following Friday. A baby making his appearance a bit later is considered to be born during bein hashemashos and cannot have his bris on Shabbos, because maybe bein hashemashos is still Friday — which makes Shabbos his ninth day of life. This bris will be postponed to Sunday. However, if he is born later on Friday evening, at a time when it is definitely Shabbos, then the bris is performed on Shabbos.

It goes without saying that, according to Rabbeinu Tam, one may not perform any melacha on Saturday night until a considerable time has passed after sunset. There are various opinions as to exactly when Shabbos is definitely over according to Rabbeinu Tam, but most people assume that Shabbos is over by 72 minutes after sunset (Biur Halacha).

By the way, at this point we can answer our third question above: why the telephone lines at Laniado hospital are not open to non-pikuach nefesh related calls until more than a half hour later than the time Shabbos ends according to most calendars. The founder of the hospital, the Klausenberger Rebbe, insisted that Shabbos be observed at the hospital until it is over according to Rabbeinu Tam.

The opinion of the Gr”a

Since we know that many highly observant Jews do not wait this long for Shabbos to end, there must be another way of interpreting the two passages of Gemara that reaches a different halachic conclusion. Indeed, one such approach is presented by the Gr”a, who who has a completely different way of explaining why the Gemara in Pesachim states that tzeis hakochavim does not occur until 72 minutes after sunset, whereas the Gemara in Shabbos has tzeis hakochavim occurring much earlier. The Gr”a contends that both passages use shekiyah to mean sunset, and this is the same sunset to which we customarily refer — however, they are not referring to the same tzeis hakochavim. The Gemara passage in Pesachim that refers to tzeis hakochavim being 72 minutes after sunset means that all visible stars of the firmament can now be seen, a time that the Gr”a calls tzeis kol hakochavim, literally, when all the stars have appeared, whereas the Gemara in Shabbos refers to the time at which three “middle-sized” stars are visible. The Gr”a concludes that sunset begins the time of bein hashemashos, the time when we are uncertain whether it is day or night, with tzeis hakochavim occurring when three “middle-sized” stars are visible. The Gemara in Pesachim that requires 72 minutes until the stars appear is not discussing when the day ends — the day ended much earlier — but is concerned about when all remnants of sunlight vanish.

According to the Gr”a’s opinion, once sunset arrives on Friday, it may already be Shabbos. We consider this time to be already bein hashemashos, and we therefore refrain from performing any melacha from this time. In the Gr”a’s opinion, a baby born after sunset Friday will have his bris performed on Sunday a week later, unless he is born after three “middle-sized” stars appear, in which case his bris will be performed on Shabbos. (In practice, since we are uncertain exactly which stars are called “middle-sized,” we wait a bit longer, see Biur Halacha to 393.) According to Rabbeinu Tam, this same baby would have his bris performed on Friday, unless he is born at least 58 1/2 minutes after sunset. If he is born between 58½ minutes and 72 minutes after sunset Friday evening, according to the Gr”a, his bris will be on Shabbos, whereas according to Rabbeinu Tam – his bris will be on Sunday. Rabbeinu Tam agrees that a baby born later on Friday evening will have his bris performed on Shabbos.

The Gr”a rules that one should not daven mincha after sunset, since this is already a time at which the previous day may have already passed. Thus, it is already time to daven maariv.

How do we rule?

Although in the past there were Torah communities that did not follow the Gr”a at all, even regarding the onset of Shabbos, today, it is universally accepted to consider it Shabbos from sunset on Friday. Many communities follow the Gr”a’s opinion fully, and do not wait until 72 minutes after sunset on Saturday to end Shabbos. In a responsum on the subject, Rav Moshe Feinstein took great umbrage at those in Eretz Yisroel who wait only 25 minutes after sunset to end Shabbos, contending that since a large number of Rishonim followed Rabbeinu Tam’s approach, one should act stringently and not end Shabbos until at least fifty minutes after sunset, which he felt fulfills “Rabbeinu Tam time” according to the basic halachic requirement (Igros Moshe, Yoreh Deah 4:17:26; and Orach Chayim 4:62).

The Spurned Shadchan

In honor of the 15th of Av, I am presenting:

The Spurned Shadchan

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The phone rings. Mrs. Weinberg,* a Lakewood* shadchan who often calls to ask shaylos, is on the line.

“I suggested that a local girl meet a bachur who is currently learning in Eretz Yisroel,” Mrs. Weinberg began. “Both families did their research and agreed that it sounded worth pursuing, but they decided to wait until the summer when the bachur would be visiting his family here.”

“When the summer arrived,” Mrs. Weinberg continued, “I called the families back to arrange for the young people to meet. However, they told me that someone else suggested the shidduch, and that they are following up through the other shadchan. Are they permitted to cut me out of the arrangements? After all, it was my idea first!”

Does Mrs. Weinberg have a claim? If she does, for how much money and against whom?

SHADCHANUS GELT

Before we discuss these issues, we need to establish whether paying a shadchan is indeed a halachic requirement.

I often find that people feel that one is not required to pay a shadchan. However, this is a misconception, since the Rama (Choshen Mishpat 264:7) requires paying a shadchan a fee, usually called by its Yiddish name, shadchanus gelt.  Just as you expect to pay your real estate broker, so, too, you should assume you will pay the shadchan. (We should be aware that, according to the Rama, a shadchan’s claim for services rendered has a stronger foundation than a doctor’s fee for an office visit, see Shulchan Aruch, Yoreh Deah 336:2; but that is a topic for a different article.)

Furthermore, there is nothing wrong with a shadchan requesting payment for services rendered, just as an attorney or accountant has every right to demand payment for services.

BROKERAGE FEES

Although it sometimes sounds strange, shadchanus fees are halachically categorized as brokerage fees. Just as one pays a real estate agent for arranging a transaction, so, too, one pays a shadchan for making the arrangements necessary for the engagement and marriage to transpire. Therefore, we must first explain the halachic sources for brokerage fees.

The Gemara (Bava Metzia 63b) mentions the responsibility to pay a broker’s fee to the person who arranges the sale of property or merchandise (Shulchan Aruch Choshen Mishpat 185:1; Rama 87:39). This is a standard business practice, similar to paying a commission to a stockbroker, real estate agent, or personnel recruiter (sometimes called a “headhunter”).

BUT WHAT IF I DIDN’T ASK HIM?

People easily understand that if you approach a broker or agent, you thereby obligate yourself to pay him for his services. However, some people assume that if you did not solicit the service, you are not obligated to pay. Does this distinction have any basis?

According to halacha, you are required to pay for any unsolicited benefit that you would usually pay for. Providing unsolicited benefit is called yored lesoch sdei chaveiro shelo birshus, entering someone else’s field without authorization, and the provider of the benefit is referred to simply as the yored (Bava Metzia 101a).

HOW MUCH DO YOU OWE THE YORED?

You are required to pay the yored as much as you have benefited. If he performed work for you that would normally require you to hire someone, you must pay him the market rate for hiring someone for this work (Bava Metzia 76a; Sma, Choshen Mishpat 375:1).

WHY MUST ONE PAY THE SHADCHAN?

When a single person or the parent of a single person asks someone if they know of any marriageable prospects, they are asking them to perform a valuable service on their behalf. This service has a market value, just as any other brokerage or recruiting fee has a market value (Rama, Choshen Mishpat 264:7).

WHAT IF YOU DID NOT ASK THE SHADCHAN?

Although there are halachic differences whether you approach the shadchan or the shadchan offers his/her service, in either case you are required to pay the shadchan. The basis for this requirement is as follows:

Even if his service is unsolicited, the shadchan is considered a yored, since you received benefit from him for a service for which you would normally pay (Gra, Choshen Mishpat 87:117). As explained above, you must pay him whatever you would have otherwise paid for that service (Bava Metzia 76a, 101a).

AM I REQUIRED TO PAY SHADCHANUS TO A FAMILY MEMBER OR CLOSE FRIEND?

This shaylah was discussed hundreds of years ago. A professional shadchan contacted Mr. Reuven suggesting a gentleman he thought appropriate for Mr. Reuven’s widowed sister-in-law. Mr. Reuven was involved in researching the shidduch and in arranging the couple’s meeting. When the couple announced their engagement, Mr. Reuven informed the professional shadchan that he was expecting half the shadchanus gelt, claiming that he was the shadchan who convinced the woman to consider this shidduch. The professional shadchan contended that he was the only shadchan, and that Mr. Reuven was an interested party and not a shadchan. Mr. Reuven countered that the professional had never made direct contact with his sister-in-law but relied exclusively on him to encourage the shidduch. The matter was referred to Rav Yair Chayim Bachrach, known as the Chavos Yair (after one of the seforim he authored). The rav ruled that Mr. Reuven was indeed a shadchan, since he influenced his sister-in-law to pursue the shidduch. He was therefore entitled to half the shadchanus fee, even though he was related to one of the principals (Shu’t Chut HaShani #3, quoted in Pischei Teshuvah, Even HaEzer 50:16).

WHO MUST PAY THE SHADCHANUS FEE, THE PARENTS OR THE COUPLE?

Usually, the parents of an engaged party pay the shadchanus gelt. Are they required to pay this fee, or is it really the responsibility of the young couple that the parents assume? As we will see, there are halachic ramifications to this question.

The poskim debate this question, making razor-thin distinctions that have major ramifications. Some contend that the responsibility falls upon the young couple, since they are the ones who benefit, even though the prevalent custom is that the parents pay (Shu’t Avnei Nezer, Choshen Mishpat #36). Others contend that since the parents usually pay, the shadchan expects payment only from them, and, therefore, he has no claim against the young couple (Halichos Yisroel #3, quoting Eirech Shai, Choshen Mishpat Chapter 185).

There is a major dispute between these approaches. The first opinion holds that if the shadchan is unable to collect from the parents, he may collect from the couple. According to the second opinion, his only claim is against the parents, and if he cannot collect from the parents, he cannot claim his fee from the young couple.

WHO WENT TO WHOM?

Since we have learned that one must pay the shadchan whether or not one solicited him initially, does it make any difference whether I asked the shadchan or the shadchan approached me first?

There are several differences in halacha that pertain to whether you solicited the shadchan initially or vice versa, including when you are required to pay the shadchan and whether you violate the mitzvah of bal talin if you fail to pay the shadchan on time.

If you approached or telephoned the shadchan initially, then you have hired him or her to perform a job — in this case, to find an appropriate shidduch. If he/she succeeds in his/her mission, then you are required to pay when the job is completed, and you must pay the shadchan as soon as the couple becomes engaged (Shu’t Halichos Yisroel #1-2). Furthermore, if you do not pay him/her on time and the shadchan demands payment, you will violate a Torah prohibition called bal talin, not paying a worker on time, a mitzvah we will explain shortly.

However, if you did not hire the shadchan, then you do not violate bal talin if you do not pay him/her on time, since the shadchan is not your employee.

Another difference in halacha affected by whether the shadchan was solicited or not is whether you must pay him or her at the time the couple becomes engaged or at the wedding. If the shadchan solicited you, then the time you are required to pay the shadchan depends on minhag –– accepted local custom (Rama, Choshen Mishpat 185:10). If the local custom is that people do not pay the shadchan until the wedding, then the shadchanus gelt is considered a marriage expense to be paid then, not an engagement expense. However, if you solicited the shadchan then you are required to pay the shadchan when his/her job is completed, which is when the couple becomes engaged (Shu’t Halichos Yisroel #4).

BAL TALIN – PAYING WORKERS ON TIME

As explained above, if one hired the shadchan, one must pay him/her on time, because of the mitzvah of bal talin.

WHAT IS ON TIME?

There are two deadlines, sunset and daybreak, and one is obligated to pay one’s worker before the first deadline after the job is completed. Therefore, if the worker finished his job before the end of the day, I must pay him by sunset. If he completed the work at night, I must pay him before daybreak (Bava Metzia 111a). (As mentioned above, one violates this prohibition only if the worker demanded payment and the owner refused to pay and there was no understanding or prearrangement of late payment.) According to this approach, if you went to a shadchan who, Baruch Hashem, arranged a successful shidduch, you should make sure to pay him or her immediately after the couple becomes engaged, before the next deadline arrives (Shu’t Halichos Yisroel #11). Others contend that one need not pay the shadchan until the wedding, unless the custom is otherwise (Rav Elyashiv, introduction to Shu’t Halichos Yisroel).

Still other poskim contend that since the responsibility of paying the shadchan really lies with the marrying couple, there is no violation of bal talin if the shadchan is assuming that the parents are paying his fee, since they are technically not required to pay shadchanus gelt.

HOW MUCH MUST I PAY THE SHADCHAN?

One must pay the shadchan the accepted fee in your community for this service (Pischei Teshuvah, Even HaEzer Chapter 50:16).

DIVIDING THE FEE

What happens if two different shadchanim were involved at different stages of encouraging the shidduch? Are they both entitled to be paid? How does one divide the fee? As we can imagine, this is not a recent shaylah.

An early posek, the Shev Yaakov (Choshen Mishpat #13), discusses the following case: Levi recommended that Reuven’s son meet Shimon’s daughter. After the engagement of the young couple, Gad claimed that he had originally suggested the shidduch to the parties and thus he was entitled to part of the shadchanus.

The Shev Yaakov researched the claims. As it turned out, Gad had, indeed, originally suggested the shidduch to both parties, but Shimon and his family had no interest in pursuing it. Levi, however, was a more persistent shadchan and convinced Shimon to consider Reuven’s son for his daughter.

The Shev Yaakov ruled that Gad was not entitled to any part of the shadchanus fee. He contends that a shadchan is entitled to a fee only when he was involved in the part of the discussion that reached fruition. However, in this case, Gad’s proposal did not accomplish anything, and, therefore, he is not considered a shadchan.

By a similar reasoning, a real estate agent who showed prospective clients a house, but was unable to interest them in it, and then a different agent showed them the same house and succeeded in convincing them to purchase it, the second agent is entitled to the commission, according to halacha. (In these instances, if accepted business practice is different it might affect the halacha, which is a topic for a different time.)

Thus, it seems that Mrs. Weinberg is not entitled to any shadchanus fee in our situation, since she was not part of the actual introduction that took place.

Notwithstanding that the Shev Yaakov ruled that Gad was not entitled to a share of the fee, there are cases in which the shidduch involves several parties and each is entitled to a part of the fee. If Sarah suggested a shidduch, but then felt that Rivkah would be a better go-between, and eventually it was necessary to get Leah involved and she was instrumental in the couple subsequently becoming engaged, all three ladies are considered partial shadchanim, according to many poskim. The accepted practice in this case is to divide the accepted shadchanus fee and to award 1/3 to each of the ladies. Other poskim contend that only the person who suggested the shidduch and the one who finalized it are considered shadchanim and they split the fee – but that a go-between who neither suggested a shidduch nor finalized it is not viewed as a shadchan (Shu’t Avnei Nezer, Choshen Mishpat #36).

SOME INTERESTING SHADCHANUS STORIES

A shadchan unsuccessfully attempted to arrange a shidduch between a daughter of the wealthy Weiss family and the son of the wealthy Schwartz family. Although the two families did meet and enjoyed one another, the shidduch did not materialize, and the Weiss girl subsequently married someone else. Later, other shadchanim suggested a match between a younger Weiss daughter and the Schwartz boy, and the couple became engaged. The original shadchan now claimed that he is entitled to a percentage of the shadchanus gelt, claiming that his involvement in the previous unsuccessful shidduch was instrumental in forging the close relationship between the two families that caused the latter shidduch to happen. Does the original shadchan have a claim?

The parties referred this shaylah to the Avnei Nezer (Choshen Mishpat #36). In a very complicated ruling he contends that the original shadchan might be entitled to a very small percentage of the shadchanus gelt for his role. He suggests a compromise on this basis, but rules that one could not be certain that he is entitled to any part of the fee.

IF A SHADCHAN ASKS FOR A HIGHER THAN TYPICAL FEE, AM I REQUIRED TO PAY IT?

If the shadchan did not provide any unusual shadchanus service, and the fee for a shadchan in your area is fairly standard, then the shadchan is not entitled to the extra fee. However, if there is no standard shadchanus fee in your area, or the shadchan performed a special service, then one must pay the shadchan’s higher fee (see Rama, Choshen Mishpat  335:1 and 264:7; Shach 264:15). Shadchanus is like any other profession, where one may not charge significantly above the going rate. However, when there is no fixed accepted amount, then the shadchan is not overcharging, since there is no market amount. Similarly, if the shadchan extends him/herself more than is expected, he may command a higher fee, since one is paying for the extra service (see Rama 335:1).

According to the Midrash, Moshe Rabbeinu was the shadchan between Klal Yisroel and Hashem at the giving of the Torah. Furthermore, Hashem, Himself, is indeed the ultimate Shadchan of every marriage. Thus, we should respect the wonderful role of the shadchanim in our midst, who are involved in a mitzvah that emulates both Hashem and Moshe.

* All names and places have been changed to protect privacy.

 

Shabbos Shirah

By Rabbis Avraham Rosenthal and Yirmiyohu Kaganoff

Question #1: Shabbos Shirah

Why is this Shabbos called Shabbos Shirah?

Question #2: Shouldn’t I know where I stand?

Should I stand or sit while reciting Oz Yashir?

Question #3: Yom Layabashah

Why do some people recite Yom Layabashah at a bris?

Shabbos Parshas Beshalach is called Shabbos Shirah – the Shabbos of the Song. This refers to the Shiras HaYam, the song of thanks that the Jewish nation sang to Hashem after crossing through the Red Sea on dry land and seeing their enemies drown. The name Shabbos Shirah appears already in early authorities (Sefer HaMinhagim [Tyrnau], s.v. Shevat; Sefer Maharil, Hilchos Teves-Shevat-Adar, #7).

WHY SHABBOS SHIRAH?

It is interesting to note that Shabbos Shirah is the only Shabbos that has a unique name based on the parsha that is not taken from the opening words of the parsha. The Shabbosos of the four parshiyos, Shekalim, Zachor, Parah and HaChodesh and Shabbos Shuva receive their names from the maftir, not from the parsha. Shabbos Shuva, Shabbos Chazon, and Shabbos Nachamu receive their names from the haftarah. The Shabbosos on which we read other noteworthy events do not have a unique name; thus, Shabbos Parshas Yisro is not called Shabbos Aseres HaDibros and Shabbos Parshas Noach is not Shabbos HaMabul. Why does the Shabbos of Parshas Beshalach get this distinction? Additionally, the shirah is not the only seminal topic of the parsha. There is also Parshas HaMan and Parshas Marah, in which Hashem starts giving mitzvos to Klal Yisroel, one of which is Shabbos. Why is this Shabbos not referred to as Shabbos HaMan or Shabbos Shabbos?

The Shirah is unique. The Torah consists of what Hashem said to Klal Yisroel. Az Yashir, however, is what Klal Yisroel said to Hashem, and what they said became part of the Torah. This is because when they sang this shirah, they attained the highest levels of prophecy, as it says, “a maidservant saw at the sea more than what (the great prophets) Yeshayahu and Yechezkel saw” (Mechilta d’Rebbi Yishmael, Beshalach, Mesichta d’Shirah #3). Therefore, we call this Shabbos ‘Shabbos Shirah’, in order to remind ourselves of the great spiritual potential of Klal Yisroel (Sefer HaToda’ah, Shevat, s.v. Shabbos Shirah).

PIYUTIM: YOTZROS AND GEULAH

The authors quoted above discuss two minhagim in relation to this Shabbos. Sefer HaMinhagim writes that, “On Shabbos Shirah, we say Yom LaYabashah, and some places do not say it.” He is referring to the piyut that is often sung at the meal following a bris milah. This piyut was originally part of the davening in some communities and is referred to as a “Geulah.” Let us explain this term.

There was an old custom in Klal Yisroel to recite additional tefilos called Yotzros or Piyutim on Yomim Tovim and special Shabbosos. The most commonly still recited Yotzros are those added to the Shabbos morning davening in some communities, when reading the four parshiyos: Shekalim, Zachor, Parah and HaChodesh. They are incorporated into the first bracha of birchos Kri’as Shema, which starts with the words, “Yotzair or,” hence the term “yotzros.”

Another type of addition is called a “geulah.” While yotzros are added to the first bracha of birchos Kri’as Shema, the “geulah,” as implied by the name, is added to the last bracha, which ends with “Ga’al Yisroel.” The piyut of Yom LaYabashah was added to the davening on Shabbos Parshas Beshalach and on Shabbos and other Yomim Tovim whenever there was a bris. This is probably why it became customary to sing this piyut at the bris meal.

Although the minhag of reciting Yom LaYabasha as a piyut during davening has fallen into disuse in most communities, there are still many who are accustomed to sing it during the meals of Shabbos Shirah (Darchei Chaim v’Shalom #832; Siddur Beis Aharon [Karlin]; Sefer Mo’adim LeSimcha, pg. 74).

MINHAGEI HATEFILAH

In many communities there were and still are various minhagim regarding the davening on this Shabbos. In Frankfurt, there was a custom to sing Az Yashir during Pesukei d’Zimra and also to sing from “MiMitzrayim ge’altanu” until “Tzur Yisroel” in birchos kri’as Shema (Sefer Moadim LeSimcha, pg. 69, quoting seforim of minhagei Frankfurt).

In several kehilos, although the custom is not necessarily to sing Az Yashir, they recite it posuk by =posuk (Minhagei Mattersdorf; Darchei Chaim v’Shalom #832; Minhag Belz). It seems, however, that there are two minhagim as to how the Shirah is said. In some locations, the entire congregation, including the chazzan, recites each possuk in unison; while in other shuls, the chazzan recites a possuk and the tzibbur repeats it. It has been suggested that these two approaches of how to recite the shirah have their roots in a disagreement in the Gemara.

The Gemara (Sotah 30b) discusses how the Bnei Yisroel recited the shirah after Kri’as Yam Suf. One opinion maintains that Moshe said one posuk and the Bnei Yisroel repeated it; Moshe said the next posuk and they repeated that posuk as well, and so on. According to another opinion, Moshe initiated the shirah and the rest of Klal Yisroel attained prophecy and were able to join in with him, reciting it simultaneously (Sefer Nachalah LeYisroel 10:56, quoted in Sefer Mo’adim LeSimchah, pg. 70).

It is worthwhile to point out that the Mishnah Berurah (51:17) writes regarding the daily recital of Shiras HaYam in pesukei d’zimra: “One should recite shiras hayam joyfully, and he should imagine that he crossed the sea that day. One who recites it with joy will receive forgiveness for his sins.”

MINHAGIM DURING KRI’AS HATORAH

When leining from the Torah on fast days, most shuls have a custom that three pesukim are first recited aloud by the tzibbur and then by the ba’al kriah: 1) Shuv mei’charon apecha (Shemos 32:12), 2) Hashem, Hashem [the thirteen Divine attributes of mercy] (ibid. 34:6-7), and 3) veSalachta (ibid. 34:9). One of the sources of this minhag is the Avudraham (Seder HaParshiyos veHaHaftaros in the name of Rav Saadiah Gaon). However, he maintains that this custom of reciting pesukim out loud by the tzibbur was not limited to these three pesukim. Rather, he quotes that there are ten such pesukim where the custom is to do so, seven of which are in this week’s parsha: 1) Hashem yilachem lachem (ibid. 14:14), 2) Vaya’aminu baHashem (14:31), 3) Hashem Ish milchamah (15:3), 4) Mi chomocha ba’eilim (15:11), 5) Mikdash Hashem konanu yadecha (15:17), 6) Hashem yimloch l’olam va’ed (15:18), 7) Ki macho emcheh (17:14), 8-9). However, this custom has fallen into disuse, except for the pesukim of the fast day reading.

The generally accepted minhag is that when leining Az Yashir on Shabbos Shirah, a special, melodious tune is used instead of the regular trop (cantillations). However, different shuls have varying minhagim as to which pesukim are read with the special tune (Sefer Moadim LeSimcha, pg. 73).

It is also common practice to give honor to the Rav of the community by giving him the aliyah in which Shiras HaYam is read (Shu”t Radvaz #304; Magen Avraham 428:8).

In the event that there are many people who require an aliyah on Shabbos and it is customary to add aliyos beyond the mandatory seven, the minhag is that the Shirah is read in one aliyah and not divided (Avudraham ibid.; Sha’arei Efraim 7:25).

STANDING UP

In many kehilos, the minhag is to stand during the aliyah of Shiras HaYam from “Vayosha” until the end of the Shirah (Sefer Ketzos HaShulchan 84, Badei HaShulchan 22). One reason is based on the idea that the recital of the Shirah by Moshe and Bnei Yisroel was comparable to the recital of Hallel (Mishnah Sotah 27b). The halacha is that Hallel is to be said standing (Shulchan Aruch 422:7), because one is testifying to the fact that Hashem did miracles for us, and testimony must be said while standing. Therefore, the custom is to stand during the Shirah, and perhaps this is also the reason why many people have the practice of standing for Az Yashir, when reciting it during pesukei dezimra (Kitzur Shulchan Aruch 14:4; Badei HaShulchan ibid.).

Another reason for standing during the Shirah is based on the Zohar (Lech-Lecha 81b), which says that Dovid HaMelech merited to be the ancestor of Moshiach, because he stood up in order to say Shirah, as it says (Tehillim 119:62), “I will arise to praise You” (Siddur Tzelosa deAvraham, pg. 168).

On the other hand, there are those who do not have this minhag to stand during Krias HaTorah (Kaf HaChaim 494:30). It is reported that although Rav Yaakov Yisroel Kanievsky z”l stood during the leining of the Aseres HaDibros, he remained seated during Az Yashir (Sefer Orchos Rabbeinu, vol. I, pg. 120 #85).

Additionally, there are those who argue that if one is sitting during leining, he should not get up for the Shirah or the Aseres HaDibros. This is based on a Gemara (Brachos 11b-12a) that in the Beis HaMikdash the Aseres HaDibros were read together with Krias Shema on a daily basis, and it was suggested to institute this outside the Beis HaMikdash, as well. However, it became necessary to abandon this plan, due to the heretics who tried convincing the simple people that only the Aseres HaDibros are the truth, while the rest of the Torah is not, chas veshalom. They reasoned that since it is only the Aseres HaDibros that are being read, it must be the only thing that Hashem said at Har Sinai (Rashi ibid.). Based on this Gemara, some maintain that if we stand up, specifically, for the Aseres HaDibros or Az Yashir, this will lead people to claim that only these two parshiyos are Toras emes.

However, Rav Moshe Feinstein z”l (Shu”t Igros Moshe, Orach Chaim vol. IV, #22) maintains that this is not a reason to abandon the custom of standing while these parshiyos are read. The Gemara was speaking of a specific incident, and we cannot extrapolate a new prohibition from there. Rav Moshe Sternbuch, shlit”a, suggests that if one wishes to be stringent and is concerned about the above argument, he should stand up a few pessukim before the Shirah or Aseres HaDibros. In this way, he will not be standing up specifically for these two parshiyos, and there can no longer be a claim that only these are emes (Shu”t Teshuvos veHanhagos, vol. I, #144; see also Pischei She’arim to Sha’arei Efraim 7:37).

If one is accustomed to sit during Aseres HaDibros or the Shirah and he finds himself in a shul where the tzibbur stands, he must act in accordance with the local custom (Sha’arei Efraim ibid.; Shu”t Igros Moshe, ibid.).

* In this week’s article in Yated Neeman, Rabbi Kaganoff discusses the custom of feeding the birds on Shabbos Shirah.

EATING WHEAT

In addition to the custom of giving wheat or other food to birds on Shabbos Shirah, there is another fascinating minhag connected to wheat and Shabbos Shirah. There is a discussion among the poskim regarding the correct bracha acharonah to be recited after eating wheat. This topic is beyond the scope of our discussion. However, the Bach writes (Orach Chaim 208) that, “according to the custom of eating whole wheat grains on Shabbos Shirah, one should be careful… only to eat them during a meal.” In order to gain an appreciation of the age of this custom, one should keep in mind that the Bach lived over 350 years ago. This minhag was prevalent in Western Europe and is also cited in Minhagei Frankfurt and Minhagei Chasam Sofer.

One reason cited for the custom is because the manna looked like grains of wheat. Therefore, on Shabbos Shirah when the parshas =haman is read, we eat wheat, as a remembrance of the manna (Likutei Mahari’ach, Teves).

Rav Yehudah Michal Benga Segal, a trustee and a ba’al tekiah of the Frankfurt kehillah over 250 years ago, in his sefer Koach Yehudah, suggested another possible reason behind this custom. Although the primary time for commencing the Pesach preparations is Purim, as is indicated by the halacha that one begins studying Hilchos Pesach thirty days before the holiday (Shulchan Aruch Orach Chaim 429:1), some things required more time. One such item was wheat for matzos. The grains had to be checked, ground, sifted and stored in a chometz-free environment, all of which took much time and effort. Owing to the poor travel conditions of European winters, these preparations had to be started well before Purim.

Therefore, the Pesach wheat was bought for Shabbos Shirah, which is usually two months before Pesach, in order that it be ready for grinding to make the Pesach matzah flour. Once they had the Pesach wheat, they would eat some of it on Shabbos Shirah. This was based on another minhag, cited in the poskim (Magen Avraham 430:1, quoting Maharshal), to eat specifically Pesach wheat or flour before Pesach. The reason behind that minhag is beyond the scope of our discussion (see Sefer Mo’adim LeSimcha, vol. III, pg. 66). Interestingly, some have a custom of preparing a kugel from Pesach flour for Shabbos Hagadol (Luach Minhagei Belz).

THE TEN SONGS

According to the midrash (Mechilta d’Rebbi Yishmael, Beshalach, Mesichta d’Shira, #1), ten songs were sung to Hashem: 1) On the night of Yetzi’as Mitzrayim, 2) after Kri’as Yam Suf, 3) by the well in the desert (Bamidbar 21:17), 4) Moshe’s transcribing the Torah, which is referred to as a shirah (Devarim 31:24), 5) Yehoshua sang shirah when he stopped the sun in Givon and the moon in Emek Ayalon (Yehoshua 10:12), 6) Devorah and Barak ben Avinoam sang shirah after Sisra’s defeat (Shoftim 5:1), 7) Dovid sang shirah when he was saved from his enemies (Shmuel II 22:1), 8) Shlomo sang shirah when he inaugurated the Beis HaMikdash (Tehillim 30:1), 9) King Yehoshafat sang shirah and was saved from the enemy (Divrei HaYamim II 20), 10) the shirah that will be sung in the future when Moshiach comes (Yeshayahu 42:10).

The midrash points out that the first nine songs were referred to in the feminine form, shirah, while the last one, shir, is masculine. The reason for this is that, generally speaking, after a woman gives birth to a child, she will eventually repeat the entire process, thus subjecting herself again to the pains of childbirth. This cycle of childbirth, pain and childbirth represents our existence in this world. Hashem brings salvation, which prompts shirah. He again puts us through trial and tribulation, and again saves us. This is all true until Moshiach comes, when the shir that will be sung is “masculine.” A man cannot give birth. Once we experience the final geulah and sing that final shir, there will be no more pain and suffering. May we merit to see it very soon!

 

How Many Should be Saying Kaddish?

American Friends of Nimla Tal Inc. is a tzedakah that distributes all of the money received to situations here in Eretz Yisroel of which I have personal knowledge. Usually, the money is used to pay for therapy. In addition, a special feature, good through the month of December, is that PayPal adds 1% to the amount donated. So, click on www.paypal.me/rabbikaganoff to donate, and you will be given the option to enter your amount. If you enter $100, for example, you get a US IRS tax deduction of $100, and $101 goes to help the poor in Israel. No money goes to pay salaries or other no expenses.

Since, in Parshas Vayechi, we read of Yaakov Avinu’s last instructions to his children, this is an appropriate week to discuss some of the laws of kaddish.

How Many Should be Saying Kaddish?

Question: Is it better that each mourner recite only one kaddish, or that all the mourners recite all the kaddeishim?

Answer: Most people are under the impression that whether the “mourner’s kaddish” (kaddish yasom) is recited by only one person or whether many recite it simultaneously is a dispute between the practices of Germany and those of Eastern Europe. However, we will soon see that this simplification is inaccurate. There were many communities in Eastern Europe where kaddish was said by only one person at a time, and this was the universal Ashkenazic practice until about 250 years ago.

The custom that many people recite the mourner’s kaddish simultaneously was accepted and standard Sefardic practice (meaning the Jews of North Africa and the Middle East), going back at least to the early 18th century (see Siddur Yaavetz, comments after Aleinu), although when this custom was instituted is uncertain. But before we explore the issue of whether more than one person may say kaddish simultaneously, let us first examine the origins of reciting the mourner’s kaddish altogether.

Origins of kaddish

Although the Gemara refers to kaddish in numerous places (Brachos 3a, 57a; Shabbos 119b; Sukkah 39a; Sotah 49a), it never mentions what we call kaddish yasom, the kaddish recited by mourners, nor does it recommend or even suggest, anywhere, that a mourner lead the services. The Gemara, also, makes no mention of when kaddish is recited, with the exception of a very cryptic reference to kaddish recited after studying aggadah (see Sotah 49a). A different early source, Masechta Sofrim, mentions recital of kaddish before borchu (10:7) and after musaf (19:12). The fact that the Gemara says nothing about a mourner reciting kaddish or leading services is especially unusual, since the most common source for these practices is an event that predates the Gemara. The Or Zarua, a rishon, records the following story:

Rabbi Akiva once saw a man covered head to toe with soot, carrying on his head the load that one would expect ten men to carry, and running like a horse. Rabbi Akiva stopped the man, and asked him: “Why are you working so hard? If you are a slave and your master works you this hard, I’ll redeem you. If you are so poor that you need to work this hard to support your family, I’ll find you better employment.”

The man replied, “Please do not detain me, lest those appointed over me get angry at me.”

Rabbi Akiva asked him: “Who are you, and what is your story?”

The man answered: “I died, and everyday they send me like this to chop and carry these amounts of wood. When I am finished, they burn me with the wood that I have gathered.”

Rabbi Akiva asked him what his profession was when he was alive, to which he answered that he had been a tax collector (which, in their day, meant someone who purchased from the government the contract to collect taxes) who favored the rich by overtaxing the poor, which the Or Zarua calls “killing the poor.”

Rabbi Akiva: “Have you heard from your overseers whether there is any way to release you from your judgment?”

The man responded: “Please do not detain me, lest my overseers become angry with me. I have heard that there is no solution for me, except for one thing that I cannot do. I was told that if I have a son who would lead the tzibur in the recital of borchu or would recite kaddish so that the tzibur would answer yehei shemei rabba mevorach…, they would release me immediately from this suffering. However, I did not leave any sons, but a pregnant wife, and I have no idea if she gave birth to a male child, and if she did, whether anyone is concerned about teaching him, since I have not a friend left in the world.”

At that moment, Rabbi Akiva accepted upon himself to find whether a son existed and, if indeed he did, to teach him Torah until he could fulfill what was required to save his father. Rabbi Akiva asked the man for his name, his wife’s name, and the name of the town where he had lived. “My name is Akiva, my wife’s name is Shoshniva and I come from Ludkia.”

Rabbi Akiva traveled to Ludkia and asked people if they knew of a former resident, Akiva, the husband of Shoshniva, to which he received the following answer: “Let the bones of that scoundrel be ground to pulp.” When Rabbi Akiva asked about Shoshniva, he was answered: “May any memory of her be erased from the world.” He then inquired about their child, and was answered: “He is uncircumcised — for we were not interested in involving ourselves even to provide him with a bris milah!” Rabbi Akiva immediately began his search for the son, whom he located — it turned out that he was already a young adult. Rabbi Akiva performed a bris milah on him and attempted to teach him Torah, but was unable to do so. For forty days, Rabbi Akiva fasted, praying that the child be able to study Torah, at which time a heavenly voice announced: “Rabbi Akiva, now go and teach him Torah!”

Rabbi Akiva taught him Torah, shma, shmoneh esrei, birchas hamazon, and then brought him to shul in order for him to lead the tzibur by reciting kaddish and borchu, to which the tzibur responded, yehei shemei rabba mevorach le’olam ule’olmei olemaya and “Baruch Hashem hamevorach le’olam va’ed.”

At that moment, Akiva, the husband of Shoshniva, was released from his punishment. This Akiva immediately came to Rabbi Akiva in a dream and told him: “May it be Hashem’s will that you eventually reach your eternal rest in Gan Eden — for you have saved me from Gehennom.” (This story is also found, with some variation, in the second chapter of Masechta Kallah Rabasi.)

Other versions

When a different rishon, the Rivash, was asked about this story, he reported that it is not found in the Gemara, but perhaps its origin is in Midrash Rabbah or Midrash Tanchuma. He then quotes a story from the Orchos Chayim similar to that quoted by Or Zarua. In conclusion, the Orchos Chayim emphasizes that, for the twelve months of mourning, a mourner should recite the last kaddish of the davening and maftir on Shabbos and Yom Tov, and lead the services for ma’ariv every motza’ei Shabbos (Shu’t Harivash #115).

A similar story is recorded in an earlier midrashic source, the Tanna Devei Eliyahu, where the protagonist is not Rabbi Akiva, but his rebbe’s rebbe, Rabbi Yochanan ben Zakai (see Rambam, Peirush Hamishnayos, end of the fifth chapter of Sotah). In this version, the man was punished until his son turned five and the son was educated to the point that he could answer borchu in shul (Eliyahu Zuta, Chapter 17). No mention is made of the son reciting kaddish. However, the halachic sources all quote the version of the Or Zarua, in which the protagonist of the story is Rabbi Akiva.

Merits for the deceased

This story serves as the basis for the practice that a mourner lead the services and recite kaddish. Relatively little of this topic is discussed until the time of the Maharil, who was asked the following question:

“Should someone who is uncertain whether his father or mother is still alive recite kaddish?”

To this question, frequent in earlier times when cell phones were not so commonplace, the Maharil replied that he is not required to recite kaddish and he should assume that the person is still alive (Mishnah, Gittin 3:3). Once the parent reaches the age of eighty, one should view it as uncertain whether the parent is still alive. Upon this basis, I am aware of a gadol be’yisrael who had escaped Hitler’s Europe before the war, who began to recite kaddish for his parents once the Nazis invaded the part of Russia where his parents were living.

The Maharil continues that if there are two people in shul, one who is reciting kaddish for a deceased parent, whereas the other is uncertain whether his parents are still alive, that the second person should not recite kaddish. This is because of the halachic principle of ein safek motzi midei vadai, someone who has a questionable claim does not preempt someone who has a definite claim or right – in this instance, the person whose parents might still be alive should not recite kaddish, rather than someone whose parents are known to be deceased. We see from this ruling that the Maharil assumes that kaddish is recited by only one person at a time.

The Maharil explains that, for this reason, he himself did not say kaddish when he was uncertain whether his parents were still alive. He then explains that someone who is not sure whether his parents are still alive and is capable to lead the services properly should lead the services in honor of his parents (Teshuvos Maharil #36).

Conclusions based on the Maharil

We see from the Maharil’s discussion that:

Only one person recites kaddish at a time.

The reason that someone whose parents are alive should not recite mourner’s kaddish is because he is taking the kaddish away from people who are mourners.

If there is no mourner present to lead the services, then the person uncertain if he is a mourner should lead services, if he can do the job properly.

Obligatory versus voluntary kaddish

The Maharil (Shu’t Maharil Hachadoshos #28) was also asked how a minor can recite kaddish if it is a requirement, as only one obligated to fulfill a mitzvah may fulfill a mitzvah on behalf of others. The Maharil answered that the kaddeishim that are recited by the shaliach tzibur as part of davening cannot be recited by minors. These kaddeishim are obligatory and therefore must be recited by an adult, who thereby fulfills the mitzvah on behalf of the entire community. However, non-obligatory kaddeishim, such as kaddish derabbanan and the kaddeishim recited at the end of davening, may be recited by minors. As a curious aside, the Mesechta Sofrim (10:7) explains that these kaddeishim were established primarily as make-up for people who arrived late and missed the kaddeishim that are required.

It is interesting to note that, already in the time of the Maharil, people assumed that the mourner’s kaddeishim are more important than the kaddeishim recited by the chazzan. The Maharil points out that this is incorrect, since the kaddeishim recited by the chazzan are required, and it is greater to perform a mitzvah that one is required to observe than one that is not required (gadol ha’metzuveh ve’oseh mimi she’eino metzuveh ve’oseh). The main merit that one performs for his deceased parent is to recite the kaddeishim that are said by the chazzan as part of davening.

Since minors cannot serve as chazzan, the Maharil considers it a great merit that they receive maftir, which a minor may receive, since they thereby recite borchu in front of the tzibur.

Mourner’s kaddish on weekdays

It appears from the Maharil’s responsum that, prior to his era, kaddish yasom was recited only on Shabbos and Yom Tov. In his day, a new custom had just begun in some communities to recite mourner’s kaddish on weekdays. The reason for the new custom was to enable minors to recite kaddish on a daily basis and to accommodate adults whom the tzibur did not want to lead the services.

Which kaddeishim should be said?

The Maharil writes that although these kaddeishim are not required, but only customary, they should still be recited after a shiur is completed, after bameh madlikin is recited Friday evening, and after pesukim are recited, such as when we recite kaddish after aleinu and the shir shel yom. He rules that someone whose parents are still alive may recite these kaddeishim. However, if his parents do not want him to recite these kaddeishim, he should not.

One at a time

At this point, let us address our opening question: Is it better that each mourner recite only one kaddish, or that all the mourners recite all the kaddeishim?

It appears that, initially, whoever wanted to recite what we call today the mourner’s kaddeishim would do so. Knowing the story of Rabbi Akiva, it became an element of competition, different people trying to chap the mitzvah, which sometimes engendered machlokes and chillul Hashem. To resolve this problem, two approaches developed for dealing with the issue. Among Sefardim, the accepted approach was that anyone who wanted to say kaddish did so, and everyone recited kaddish in unison. This practice is noted and praised by Rav Yaakov Emden in his commentary on the siddur (at the end of Aleinu). Among the Ashkenazim, the approach used was to establish rules of prioritization, whereby one person at a time recited kaddish.

These lists of prioritization are discussed and amplified by many later Ashkenazi authorities, thus implying that, in the Ashkenazi world, the early custom was that only one person recited kaddish at a time. We do not know exactly when the custom began to change, but by the late eighteenth/early nineteenth century, several major Ashkenazi authorities, among them the Chayei Odom (30:7) and the Chasam Sofer (Shu’t Orach Chayim #159; Yoreh Deah #345), discuss a practice whereby kaddish was recited by more than one person simultaneously. About this time, we find another custom in some communities, in which the mourner’s kaddish was said by only one person, but where everyone who chose could join in the recital of a kaddish derabbanan that was recited at the end of the daily morning prayer (see Shu’t Binyan Tziyon #1:122), presumably after the rav taught a shiur in halachah.

Merged community

With this background, we can understand the following mid-nineteenth century responsum. A community had two shullen and several shteiblach. The main shul was in serious disrepair, so they made an agreement to close all the smaller shullen in order to pool resources and invest in one large, beautiful new shul and have no other minyanim. Included in this decision was a new takkanah that all mourners would now recite all the kaddeishim in unison. Subsequently, some individuals claimed that the community should follow the practice of the Rema and the Magen Avraham of prioritizing the recital of kaddish and have one person say it at a time. The community leaders retorted that this would create machlokes, since there was only one shul and many people would like to say more kaddeishim than they can under the proposed system. Apparently, the dispute even involved some fisticuffs. The community sent the shaylah to Rav Ber Oppenheim, the rav and av beis din of Eibenschutz. He felt that the community practice of having all the mourners recite kaddish together should be maintained, but first wrote an extensive letter clarifying his position, which he sent to Rav Yaakov Ettlinger, the premier halachic authority of central Europe at the time. I will refer to Rav Ettlinger by the name he is usually called in yeshiva circles, the Aruch Laneir, the name of his most famous work, the multi-volumed Aruch Laneir commentary on much of Shas. The Aruch Laneir’s reply was subsequently published in his work of responsa called Shu’t Binyan Tziyon.

The Aruch Laneir contended that one should not change the established minhag of Germany and Poland, in practice for more than three hundred years, in which only one person recites kaddish at a time. He further notes that although the Yaavetz had praised the practice that several people recite kaddish in unison, the Yaavetz himself had lived in Altoona, Germany, where the accepted practice was that only one person said kaddish at a time. (The Aruch Laneir notes that he himself was the current rav of Altoona and had been so already for several decades.)

Furthermore, the Aruch Laneir contends that one cannot compare Ashkenazic to Sefardic observance for a practical reason. The Sefardim are accustomed to praying in unison, and therefore, when they say kaddish, everyone exhibits great care to synchronize its recital. When Ashkenazim attempt to recite kaddish in unison, no one hears the kaddeishim. The Aruch Laneir notes that when the kaddish derabbanan is recited by all mourners, the result is a cacophony. He writes that he wishes he could abolish this custom, since, as a result, no one hears or responds appropriately to kaddish.

In conclusion, the Aruch Laneir is adamant that where the custom is that one person at a time recite kaddish, one may not change the practice. On the other hand, we have seen that other authorities cite a custom whereby all the mourners recite kaddish in unison.

Conclusion: How does kaddish work?

The Gemara (Yoma 86a) records that any sin that a person commits in this world, no matter how grievous, will be atoned if the person does teshuvah. This does not mean that the teshuvah accomplishes atonement without any suffering. Some sins are so serious that a person must undergo suffering in this world in addition to performing teshuvah, before he is forgiven.

The greatest sin a person can be guilty of is chillul Hashem. Only teshuvah, suffering, and the individual’s eventual demise will be sufficient to atone for this transgression. Thus, a person’s death may result from his having caused a chillul Hashem.

The Maharal of Prague had a brother, Rav Chayim, who authored a work entitled Sefer Hachayim, in which he writes that most people die because at some point in their life they made a chillul Hashem. The reason a mourner recites kaddish is to use the parent’s death as a reason to create kiddush Hashem – by reciting kaddish – thus, atoning for the original chillul Hashem (Sefer Hachayim, end of chapter 8). May we all merit to create kiddush Hashem in our lives.

The Halachic Ramifications of Wills

Special end of Chanukah special—and chance to give Chanukah gelt to my favorite tzedakah.

Paypal has a new useful feature that you can use to donate money to American Friends of Nimla Tal. This tzedakah distributes all of the money received to situations here in Eretz Yisroel of which I have personal knowledge. Usually, the money is used to pay for therapy. In addition, a special feature, good through the month of December, is that PayPal adds 1% to the amount donated. So, click on www.paypal.me/rabbikaganoff to donate, and you will be given the option to enter your amount. If you enter $100, for example, you  get a US IRS tax deduction of $100, and $101 goes to help the poor in Israel. No money goes to pay salaries or other no expenses.

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Before he embarked on the difficult trip to Egypt at the age of 130 years, no doubt that our forefather Yaakov made sure all his matters were in order. Thus, it is time to study:

The Halachic Ramifications of Wills

Should an observant Jew have a will drafted? What happens if the inheritance dictated by halacha is different from that dictated by civil law? If he already has a will, how can he arrange it so that it can be consistent with halacha? May one distribute one’s estate differently from what the Torah commands? In this article, we hope to clarify these shaylos that affect every one of us.

SHOULD A JEW WRITE A WILL?

The answer to this question depends on what would happen if one leaves no legally binding will. Who will become the legal guardians of one’s minor children? Does one want one’s property distributed according to the civil law applicable where one lives? The truth is that allowing one’s property to be distributed on the basis of civil law will almost always result in someone receiving money that is not halachically his or hers! Thus, by not writing a halachically acceptable will, one may indirectly cause someone to receive stolen property!

The following shaylah that I was asked recently illustrates this problem:

Reuven Stern, who had sons and daughters, did not leave a will, and his property was divided up according to the “law of the land”, without any concern about halacha. One of his daughters asked me the following: Is she allowed to keep the money that she has received? She knows that her father intended to divide his property equally among his children; however, he had never drafted a will.

I told her that she is obligated to tell her brothers that her inheritance money is not halachically hers. If they wish, they can allow her to keep the money, but if she did not tell them, she would violate the Torah prohibition of gezeilah, stealing (MiDor L’Dor pg. 2).

DON’T WE PASKEN THAT CIVIL LAW DETERMINES THE HALACHA IN SUCH CASES BECAUSE OF DINA DIMALCHUSA DINA?

This is an incorrect understanding of dina dimalchusa dina, that the law of the government is binding in halacha. Dina dimalchusa dina requires us to obey rules of the government, such as paying taxes and obeying traffic and safety laws, and prohibits us from smuggling and counterfeiting. Dina dimalchusa dina does not replace the civil laws of the Torah (the laws of Choshen Mishpat) that govern the relationships between Jews. According to all accepted opinions, dina dimalchusa dina does not apply to the laws of inheritance (Shu”t Rashba, quoted by Beis Yosef, Choshen Mishpat end of Chapter 26, and by Shach, Choshen Mishpat 73:39).

IS A TYPICAL WILL VALID IN HALACHA?

Shimon had his lawyer draft a will. He instructed his lawyer to have certain bequests made to specific tzedakos, and to divide the rest of his estate equally among all his sons and daughters. Is this will halachically valid? If it is not, what are the halachic ramifications?

According to civil law, a person has the right to choose one’s heirs and thereby to choose to whom one distributes one’s earthly wealth, after one passes on. However, according to the Torah, a person does not have the ability to choose one’s heirs, nor can one give away property after one’s death. When a man dies, the Torah has a formula for distributing his assets.

If a person cannot designate his heirs, does this mean that it is impossible for one to determine who owns one’s assets after one’s passing? No. In this article, we will present different methods whereby one can make a civil will enforceable according to halacha. However, it is important to ask a shaylah to make sure that one’s will is indeed valid, according to halacha.

Here is a case of someone who drafted a will without first asking a shaylah. Mrs. Goldstein promised her nephew Yitzchak that she would support him in kollel. She told Yitzchak that she would make sure that he was provided for, if anything happened to her. Her own children were financially well-established but, unfortunately, non-observant. Any money she left them would be insignificant to them in terms of their own means. By supporting her nephew Yitzchak’s learning, Mrs. Goldstein felt that she would be ensured of a good reward in Olam HaEmes. However, when she had a will drafted, she failed to make any provisions for it to be halachically binding.

After Mrs. Goldstein’s passing, Yitzchak researched the halachos about wills and realized that the property left to him might not be his, from a halachic standpoint. According to many poskim, taking this money without the consent of his non-observant cousins would be stealing, so Yitzchak decided to take no money without his cousins’ willing consent (cf., however, Shu”t Igros Moshe, Even HaEzer 1:104). This consent was not forthcoming, and consequently, Yitzchak was unable to benefit from his aunt’s estate.

Unfortunately, even frum attorneys are often unaware of the halachic ramifications of drafting a will. Mrs. Goldstein’s estate could have been divided according to her wishes, if she or her attorney had only consulted a rav.

ONE METHOD OF MAKING THE WILL EFFECTIVE

One method of making a civil will halachically effective is to have ownership of the property transferred while the testator (the person making the will) is still alive. Thus, there is no need for the beneficiary of the will, called the legatee, to be a halachic heir since he/she is receiving ownership of the property as a gift, not as an inheritance.

However, most people do not want to give away all their properties until their last moment, since they may still have a need for them. Therefore, the date that the gift takes effect is delayed until immediately before the testator passes away. Thus, the testator may still use all his assets, without any hindrance, until the point at which he no longer needs them.

Based on the above, a will can be rendered halachically effective by making a kinyan that transfers assets to the legatee. There are many acts of kinyan recognized by halacha that transfer ownership. For the purposes at hand, the simplest kinyan is what is usually called kinyan sudar, the same type of kinyan that is used to authorize one’s rav to sell chametz. The testator lifts up a pen or any other utensil owned by someone else which thereby transfers the ownership of the estate to the beneficiaries of the will.

Although the act of kinyan is performed at the time the will is signed and witnessed, its effective date is delayed until shortly before the testator’s death. At that moment, it takes effect automatically, because of the kinyan that was performed previously. Thus the legatee will not own the legacy (the property given away in the will) until a few moments before the testator passes away.

Making the will halachically effective by using a kinyan does not require making any change in the will itself. After the will is drafted, one renders it halachically effective by making the kinyan described above.

Although technically not required, it is advisable to have the kinyan witnessed by two adult males, who sign a statement that they observed the kinyan. This statement can then be filed together with the will. Otherwise, halachic heirs can protest that no kinyan was made and refuse to hand over properties.

Although the above method is halachically binding, it has several drawbacks.

According to halacha, one can transfer property only if it already exists and is already owned by the person transferring it. Furthermore, one can only transfer property to someone who is already born. Thus the kinyan will transfer only property that the testator owns at the time that it is made, and will be effective only for legatees who are already born.

Since people generally purchase new properties and investments, earn more money, and include as yet unborn children and grandchildren in their wills, the kinyan should be periodically renewed. Although this is possible, most people generally forget to take care of it.

A more serious problem is that many of the items included in most people’s portfolios, such as bonds, bank deposits, and cash, are neither transacted according to halacha via kinyan sudar, nor through most other standard kinyan methods (Choshen Mishpat 203:1; 66:1). Thus, although the kinyan will work to transfer to the legatee real estate, ownership in businesses, chattel, and stocks, a significant percentage of the assets may not have been transacted in a binding way. As a result, the halachic heir could claim that the legatee did not acquire these items, and therefore that they are not included in the will according to halacha.

WHY ISN’T THE WILL VALID IN HALACHA BECAUSE OF THE MITZVAH TO FULFILL THE WISHES OF THE DECEASED?

It is true that there is a halachic principle called mitzvah l’kayeim divrei hameis, which literally means that it is a mitzvah to fulfill the directives of a deceased person. Thus, it would seem that the heirs are obligated to follow the directives of the will and distribute the property according to the instructions of the deceased.

However, the principle of mitzvah l’kayeim divrei hameis is extremely limited in its application, as we will explain. Relying on mitzvah l’kayeim divrei hameis does not guarantee the fulfillment of the terms of the will, for several reasons. Firstly, the Shulchan Aruch rules that mitzvah l’kayeim divrei hameis applies only when the property is handed over to a third party for the purpose of fulfilling the testator’s instructions at the time the instructions are received (Choshen Mishpat 252:2).

If this condition is not fulfilled, the heirs are not obligated to carry out directives of the will. Obviously, the implementation of these conditions is impractical in the vast majority of wills. Furthermore, even if every condition is fulfilled, if the heirs sell the property before the legatee receives it, the legatee will have no halachic recourse to claim his property (Rama ad loc.). In essence, mitzvah l’kayeim divrei hameis is a mitzvah that the heirs should perform, but it is not binding on them.

Furthermore, according to many poskim, mitzvah l’kayeim divrei hameis applies only if the instructions are given directly to the halachic heirs, which is not typical in most wills (Shach, Choshen Mishpat 252:7). Thus, mitzvah l’kayeim divrei hameis is not an effective means of forcing the halachic heirs to fulfill one’s will.

CAN’T THE TESTATOR TRANSFER THE PROPERTY THROUGH THE LAW OF METZAVE MACHMAS MISAH?

The words metzave machmas misah are the approximate equivalent of the English term “last will and testament,” meaning the instructions made by the testator for the distribution of his assets upon his passing. However, according to most poskim, metzave machmas misah has halachic validity only if made by a shechiv meirah, a deathly ill person (Rema, Choshen Mishpat 250:25). Thus, according to most opinions, it will have no validity in most contemporary wills that are drafted when the testator is healthy.

There is a minority opinion that metzave machmas misah takes affect even for a healthy person, provided he gives away all his property (Mordechai, Bava Basra #591). Based on this minority opinion, some poskim rule that if the legatees have already received the property, they may keep it (Gesher HaChaim 1:6, see Shu”t Maharsham 2:224). If faced with this question, one should ask his rav a shaylah.

DOES USING A TRUST OBVIATE THESE YERUSHA PROBLEMS?

I have seen poskim recommend the use of trusts to avoid some of the problems we mentioned above. However, I do not see any advantage in using a trust over simply making a kinyan. In the cases where the kinyan will not work, the trust will not work either, and the trust can create problems that the kinyan does not. Therefore, using a trust to assure that the will functions according to halacha is usually not warranted.

A MORE EFFECTIVE APPROACH – CREATING AN INDEBTEDNESS

There is a tried and true method that has been used for hundreds of years to guarantee that one’s will is upheld. The testator creates a large, theoretical indebtedness on his properties in favor of the beneficiaries of the will. This means that he creates a lien on all his property that is payable to the intended legatee, who is not a halachic heir. (In halacha, a person can create indebtedness against himself and against his property, even if there is no preexisting debt or obligation.) The debt the testator creates should be much greater than what he actually expects the legatee to receive, and may be larger than he estimates the value of his entire estate.

There is one important condition made on this debt – that it will be null and void if the heirs honor the conditions of the will. However, if the heirs refuse to honor the will, the lien becomes payable, thus depriving them of their inheritance; instead, the estate, or a significant part of it, is awarded to the legatees as payment of the debt. In reality, the indebtedness is never really used; its sole purpose is to enforce the terms of the will.

An example of how this method works will explain it better. Using our earlier examples, Reuven Stern wanted to leave property to his daughters, and Mrs. Goldstein wanted to leave property for her nephew. In both instances, the testator failed to arrange clear ownership of the legacy for the intended legatee.

What the testators could have done is to create a large, personal debt against their property to the benefit of the intended non-heir legatee. Thus, Reuven would have created a large indebtedness against his own property for the benefit of his daughters, and Mrs. Goldstein would have created one for her nephew. A condition would be placed on this debt that it is null and void if the conditions of the will are met and the heirs, in this case the sons, do not contest the will.

Both Reuven and Mrs. Goldstein would also have left a small but respectable legacy for their sons, something they should have done anyway, as will be explained later.

When the testator’s will is executed, the sons, who are the halachic heirs, have the option to ignore the terms of the will. However, by doing so, the estate now owes the full indebtedness. The result is that the sons will end up with no inheritance at all, since the debt might be greater than the entire estate. Thus, it is in the heirs’ best interest to obey the will, and at least receive the small inheritance specified for them.

Although this method may seem like a modern gimmick, it has been in use for hundreds of years. It was commonplace to write a halachic will to provide daughters with part of the inheritance together with their brothers. The father achieved this by creating a lien against his own property for an amount of money that made it worthwhile for the sons to fulfill the conditions of the will (see Rama, Choshen Mishpat 281:7).

It should be noted that because of reasons beyond the scope of this article, the indebtedness made against a wife’s properties would not be valid (see Kesubos 78b; Even HaEzer 90:9). However, the method of creating an indebtedness can still be used by placing the lien for the wife’s will against her husband’s properties. For this reason, when a couple has their wills drafted, the indebtedness for both of their wills should place the conditional lien against his estate, not hers. (This approach is suggested and described in detail by Rav Feivel Cohen in his sefer MiDor L’Dor).

IS IT PERMITTED TO DISTRIBUTE ONE’S ESTATE DIFFERENTLY FROM WHAT THE TORAH INSTRUCTS?

The Gemara tells us that Shmuel instructed his disciple, Rav Yehuda, to avoid becoming involved in situations where the Torah’s laws of inheritance would be overruled, even to transfer property from an evil son to a good son, or from a son to a daughter (Bava Basra 133b; Kesubos 53a).

Does this imply that all property should be inherited only by the halachic heirs? If this is so, why was there a widespread custom of providing daughters with an inheritance to which they are not entitled according to Torah law?

There are several approaches given to answer this question.

Some poskim rule that it is permitted to give away a large part of one’s estate, provided the testator makes certain that each of the heirs receives at least some inheritance (Tashbetz 3:147; Ketzos 282:2; see Shu”t Chasam Sofer, Choshen Mishpat #151 who disagrees).

Others explain that one should provide inheritance for one’s daughters as a means of encouraging their shidduchim, attracting potential husbands by the expectation that they will eventually receive an inheritance (Shu”t Maharam Mintz #47, quoted by Nachalas Shiva 21:4:2).

Others contend that when the accepted practice is that all children inherit equally, one should follow this custom to make sure that a machlokes does not result from unrealized expectations (Gesher HaChaim, 1:8; cf. MiDor L’Dor pg. 31 who seems to disagree).

Gesher HaChaim records a story of a great talmid chacham who wanted his estate divided exactly as the Torah instructs. Thus, he arranged legally that his bechor should receive a double portion, and that only his sons should receive inheritance and not his daughters. Unfortunately, the result of this distribution was a legacy of machlokes that created a tremendous chillul Hashem. For this reason, Gesher HaChaim strongly recommends that a person divide his estate according to what is the expected norm in his community.

It is important to realize that legal rights and responsibilities are never governed by secular law. A Torah Jew realizes that Hashem’s Torah is all-encompassing, and that every aspect of one’s life is directed by Torah. Thus all financial aspects of our lives are also governed by halacha, and one should be careful to ask shaylos about one’s business dealings.

 

Shidduchim and Lashon Hara

cell phone in handThis week’s parsha teaches about Miriam speaking loshon hora about her brother, thus providing an opportunity to discuss the questions about Shidduchim and Loshon Hora.

How should one ask and answer shidduch-related questions?

Question #1: “Someone called me inquiring about a neighbor for shidduchim purposes. From years of dealing with this boy, I know that his midos could use some polishing. What should I say?”

Question #2: Yaakov* calls to find out about a neighborhood girl, Rochel. She is one of the most wonderful people walking the face of the earth, and you would love to see her happily married; Yaakov sounds like a real mensch. However, her father, Mr. Weiss, is one of the most dishonest people you have ever met. Do you say anything to Yaakov about Rochel’s father?

* All stories in this article are actual situations, but the names have been changed.

Deciding what information to share about shidduchim often requires the wisdom of Solomon and the halachic prowess of Rav Moshe Feinstein. On the one hand, we want to assist people to find their proper zivug, while at the same time, we need to avoid transgressing any laws of speech, and imparting information that harms someone constitutes loshon hora (Rambam, Hilchos Dei’os 7:5). This is true, even if the information does not imply that he/she did anything wrong, such as mentioning that someone is in debt. While there is nothing evil about owing money, it is loshon hora to share this information, since the debtor may now find it difficult to borrow a necessary business loan, or have difficulty finding a partner for a commercial endeavor (Chofetz Chayim, end of Hilchos Rechilus, tziyur 2).

Similarly, telling people that one store tends to be expensive often involves the prohibition of loshon hora (Nesiv Chayim, Hilchos Rechilus, 9:8). A storekeeper is permitted to charge a little more than his competitor does, simply because his overhead costs are greater. Therefore, I may be affecting his halachically-permitted livelihood when I report to others that they can get a better deal elsewhere. Although my motivation to save someone money is noble, it is misplaced to do so at the expense of the other Jew, who needs to make a living. (There are circumstances when I may tell someone that he/she can get a better deal elsewhere, such as when the person I am advising is a family member or close friend, or the overcharge is unreasonable; I will need to discuss this subject at a different time.)

If someone asks me for advice, I am required to advise him/her to the best of my ability (Rambam, Hil. Rotzei’ach 12:14; Shaarei Teshuvah 3:54). Providing good advice fulfills two different mitzvahs: First, it is a positive implementation of the mitzvah of lifnei iveir, not to place a stumbling block before the blind. Just as the Torah prohibits giving bad advice and terms it misleading someone who is “blind” in this matter, providing good advice fulfills this mitzvah, since I am helping someone in a matter in which he lacks clarity (see Sefer Hamitzvos, Lo Saaseh #299). In addition, providing good advice fulfills the mitzvah of ve’ahavta le’rei’acha kamocha, love your neighbor as yourself.

Translating these issues as they relate to shidduchim, someone who shares information inappropriately and nixes a potentially good shidduch could violate the laws of loshon hora, because it causes someone harm. On the other hand, providing accurate and appropriate information about shidduchim fulfills the mitzvahs of giving good advice, and covering up negative information that one should tell may violate lo saamod al dam rei’echa, Do not stand by idly when your neighbor is endangered (Vayikra 19:16). Furthermore, not only is it permitted to investigate a potential shidduch, but one is required to research the background of the potential partner to ascertain that he/she has no issues that could disrupt married life (see Rabbeinu Yonah, Avos 1:7; Chofetz Chayim, Hil. Loshon Hora 4:11, based on Rashi to Shavuos 39b). Thus, I fulfill a third mitzvah by providing halachically appropriate information for a potential shidduch, since I am assisting someone to perform his or her necessary research.

So, when may I provide negative information, and when may I not? Answering shidduch inquiries is a difficult balancing act. One is responsible to see that someone entertaining making a shidduch has all the information that he or she needs, while, on the other hand, one must be careful not to provide superfluous negative information.

The answers to these questions vary according to circumstances and this article does not substitute for asking a rav a specific shaylah. Nevertheless, it will provide basic guidelines. As a starting point, we need to clarify several important details:

  1. Do you know the parties involved? Do you know whether this is an appropriate shidduch for this person?
  2. Would everyone consider the negative information to be important, or would it depend on the individual?

III. Do you know the caller? Do you know what his/her standards are?

Let us analyze these possibilities and see how the halacha applies in each situation. Again, the major rule is: Am I supplying information that they will use to decide whether to pursue this shidduch, or am I supplying negative information that has no purpose?

NO TACHLIS

Do you know whether this is an appropriate shidduch?

Consider the following case:

Leah’s parents, who are looking for a working man, ask you about Levi, who wants to study in kollel for several years. Before sharing any personal information, first find out whether this shidduch would be considered by both sides. Otherwise, one may be sharing loshon hora without any purpose, since the shidduch is, in any case, out of the question. Instead of giving information, simply point out that their life plans are very different. If the two sides want to consider the shidduch anyway, then proceed by providing important information, even if it is potentially negative, as I will explain.

The same is true if the two families would not be interested in a match because of radically different family backgrounds, styles of Yiddishkeit, or age.

Example: You are called to provide information about a neighbor, a fine family, but with some negatives. Before providing this information, first see if the shidduch makes sense: For example, if the caller is looking only for a litvisha family, and the neighbor is chassidish and would only entertain a chassidisha shidduch, then the shidduch would not be considered anyway, and you have told loshon hora without any purpose.

HIGHLY NEGATIVE FACTS

When the negative information will certainly cause the other party to reject this shidduch, it is better to simply convince the caller that the match is inappropriate, without being more specific. This is a situation in which one should perhaps be vague and say that you just do not think the shidduch will work. Many specific cases require further rabbinic guidance to clarify whether or not one is required to reveal the information.

If you cannot derail the shidduch without being specific, and you are aware of negative information that would concern most people, then you must reveal it, because of the halacha of lo saamod al dam rei’echa. Examples of such situations include: knowledge that someone cannot have children (Shu’t Tzitz Eliezer 16:4), of a medical condition that would concern most people, or of a history of violent behavior. This information can and should be shared. Similarly, one must reveal information about someone whose observance level is not what it is purported to be (see Sefer Chassidim #507; Shu’t Panim Meiros 1:35).

When the halacha requires or permits revealing negative information, several other factors must be kept in mind. One should share only information that one knows first-hand and not repeat what one has heard from others. (If one has strong evidence of a serious problem, one can suggest that they contact someone who has first-hand knowledge of the situation.) In addition, one must be careful not to exaggerate. Furthermore, one’s sole purpose in sharing the information must be out of motivation to advise the inquirers and not because one is angry or dislikes the person. In addition, one should only say the negatives if there is no other way to accomplish what one needs to (Chofetz Chayim, Hilchos Loshon Hora 10:2).

WHAT NOT TO TELL

Must one reveal every liability? No! The Chofetz Chayim distinguishes between someone who is ill and someone who is weak; the former being information one should reveal and the latter being information that one should not (Be’er Mayim Chayim, Hilchos Rechilus 9:8). Contemporary authors discuss which medical conditions are concerned “illnesses” or merely “weaknesses.” For example, poskim consider diabetes to be an illness, whereas hay fever would usually qualify as a “weakness.”

In an article entitled May I Keep my Skeletons in the Closet (available on RabbiKaganoff.com) I noted that someone considering a shidduch is required to reveal his having a serious medical issue, but does not need to do so before the two parties have become well acquainted. He certainly has no requirement to tell a shadchan. A third party being asked may also be governed by the same rules and should discuss this question and its details with a halachic authority.

KNOW NOTHING

At this stage, let us examine the first question I raised above: “Someone called me inquiring about a neighbor for shidduchim purposes. From years of dealing with this boy, I know that his midos could use some polishing. What should I say?”

Let us assume you receive a cold call inquiring about a neighbor about whom you have both positive and negative information and observations. In most instances, the liabilities one knows about a neighbor are relative: Even if you know that he has a temper that makes you uncomfortable, or that he is not particularly reliable or punctual, you have no idea what the standards of the caller or the party for whom he is researching are concerning these issues. Before sharing information, you need to know the standards of the caller. If you do not know the person who is calling, and are unable to quickly ascertain their standards, you should say only positive things about the neighbor.

A neighbor’s unbecoming details may be detrimental to one person and advantageous to another. It might indeed be that the caller or the potential bashert would consider your neighbor to be very reliable or would not be concerned about the degree of anger that your neighbor possesses. You might be nixing what could have been a potentially good shidduch. Therefore, if the neighbor does not have an anger problem that would alarm anyone considering a shidduch with him, one should not reveal this information without knowing the calling party. After all, it may be that your neighbor is a very appropriate shidduch choice for the caller.

An example is in order: Zahavah follows an approach to tzniyus that is common in many frum circles, but does not conform to how Sheina thinks one should dress. If someone Sheina does not know asks her about Zahavah, she should refrain from commenting on Zahavah’s mode of dress. If the caller asks her directly whether Zahavah dresses tzniyusly, Sheina should answer that she does, since she has no idea what the caller means by that question.

I personally know of a proposed shidduch where the couple did not meet because someone did not know this halacha. Daniella told the caller that she felt her former classmate’s standard was not that of a model Beis Yaakov girl. Although the classmate’s dress code did not meet Daniella’s, it was probably adequate for the family and young man who asked. However, because of the answer they received, the family assumed that the girl’s standards were way below theirs and would not consider the shidduch, notwithstanding that the standards on both sides were the same. To the best of my knowledge, both parties are still single, and several people who know both of them feel that their personalities are unusually well suited. However, his family will not consider this girl for their yarei shamayim son, and no one can convince them otherwise. As the expression goes, you do not get a second chance to make a first impression.

In this instance, Daniella violated the laws of both loshon hora and of motzi shem ra, relating disparaging, false information. She violated loshon hora, because she supplied unnecessary information that is harmful to the other person, and motzi shem ra because they were left with a false, negative impression.

A LITTLE KNOWLEDGE

All of this changes if the caller clarifies what standard of tzniyus she meant in her question, and it is a standard that Zahavah or the classmate does not follow. In this instance, the question should be answered fully and correctly, since one now comprehends clearly what the caller meant.

DOES HE “KNOW HOW TO LEARN?”

Similarly, if someone you do not know asks whether a person you are acquainted with “knows how to learn,” you should answer affirmatively, unless the person has little or no learning background. The rule here is, does he have enough learning background that someone would say that he “knows how to learn”? As long as he meets this minimal standard, one should answer affirmatively, until one knows what the caller’s definition and frame of reference is.

SELF-DEPRECATING

There is one other situation where personal or potentially negative information can be told: one may relate any information that you have heard the person say about himself or herself in public (Rashi, Arachin 16a). Similarly, it is permitted to relate something about a person that he/she does publicly. Thus, one may tell whether someone dresses stylishly or not, or that someone does or does not wear a hat when walking through the street. In all of these instances, one’s motivation should be pure – that is, simply to clarify to the person whether this is an appropriate shidduch or not.

A very common case is someone who is not of an observant background. If the person freely says in public that he/she is a baal teshuvah or of a non-observant family, one may tell a potential shidduch this information. However, if the information is not readily known, in most situations, one should not reveal this information.

HOW TO ASK

At this point, it is appropriate to explain how to ask about shidduch information when you need to call someone that you do not know. First, tell the other person who you are and for what type of person you are inquiring, before asking them for specific information. This way, the other party has some background to understand the context of the questions. Usually, the more specific your questions, the more accurately the other person will understand your standards and thereby be able to provide the information you seek.

KABBALAS LOSHON HORA

It is important to realize that although one may ask whatever is needed  about a potential shidduch, and may decide to pass up a shidduch based on the information received, one should not assume that any negative information received is absolutely true. The halacha of kabbalas loshon hora, accepting loshon hora, requires one to assume that there may have been a misunderstanding, or to interpret some other justification for the person’s actions or attributes.

As mentioned earlier, answering shidduch inquiries is a difficult balancing act. We should all daven for Hashem’s help to fulfill this tremendous mitzvah correctly and to be able to assist those who need shidduchim to swiftly find their bashert.

 

Who Is the True Redeemer?

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

Who is the True Redeemer?

Ìàøóëå 1 ìåñÿöQuestion #1: Deadbeat dad

Mrs. Gerusha* calls me with the following question:

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

Question #2: Who’s on first?

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

Question #3: Late bloomer

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

Answer

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

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

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

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

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

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

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

May she?

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

Pidyon haben vs. bris

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

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

May they redeem?

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

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

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

Early responsum

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

The Toledo contention

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

Rashba’s ruling

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

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

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

Coercion

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

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

Redeeming yourself

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

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

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

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

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

Redeeming oneself

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

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

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

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

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

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

When to redeem himself?

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

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

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

Combining semachos

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

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

Pidyon haben on Chol Hamoed

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

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

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

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

Conclusion

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

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

 

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