The Words of the Prophets

Question #1: Just This Once

“Obviously, I never met either the Chofeitz Chayim or Rav Aryeh Levin, but there is a great tzadik in our neighborhood, a big talmid chacham and a mekubal, who is never involved in what is going on. Today, he came to me, quietly, and told me that Hashem appeared to him in a vision and instructed him to tell me that this coming Shabbos, but only this Shabbos, I am supposed to drive him somewhere in my car. Am I supposed to listen to him?”

Question #2: Untruthful Prophets?

The brocha we recite prior to reading the haftarah states ve’rotzeh be’divreihem ha’ne’emarim be’emes, that Hashem “desired the words of the prophets that are said in truth.” This brocha requires explanation: Of course, Hashem desires the words of the prophets – He was the One Who sent them the message in the first place! What does this brocha mean?

Answer:

To answer the above questions thoroughly and correctly, we need to study the entire halachic issue of prophets, beginning from the Chumash, through the Gemara, rishonim and poskim. Even if we do not happen to have a neighbor in shul who meets all the requirements of a navi, we should know these laws:

(1) From a perspective of mitzvas Talmud Torah.

(2) So that we can observe them properly when we again have the opportunity.

(3) So that we can understand the verses that are germane.

(4) A proper understanding of the thirteen ikarei emunah of the Rambam is contingent on comprehending these laws.

How prophetable?

We will start with the Torah’s discussion in parshas Shoftim about the topic:

 “You shall be wholehearted with Hashem, your G-d… A prophet from among you, from your brothers, like me (Moshe), will Hashem, your G-d, establish for you. You shall listen to him…. Then, Hashem said to me… ‘I will establish for you a prophet from among your brothers, like you, and I will put My words in his mouth – everything that I will command him. Whoever will not listen to My words that the prophet will speak in My name – I will exact punishment from him. However, any prophet who will have the audacity to speak in My name that which I did not command him to say, or any prophet who will speak in the name of foreign gods – that prophet shall surely be put to death.’ And should you ask in your heart, ‘How am I to know which statement was not said by Hashem?’ (The answer is): That which the prophet says in the name of Hashem (that it will miraculously happen) and the matter does not transpire, this is, for certain, something that Hashem never said. This prophet has violated the Torah intentionally: Do not be afraid of him.” (Devorim 18: 13, 15, 18-22).

We see in these pesukim the following laws:

A.    If a prophet demonstrates that he is, indeed, a prophet that Hashem sent, we are required to obey whatever he tells us that Hashem commanded. Based on the pesukim and some relevant passages of Gemara and halachic midrash, the Rambam (Sefer Hamitzvos) explains as follows: “Mitzvah #172 is that we were commanded to listen to every prophet and to obey what he commands, even if it contradicts a mitzvah… as long as it is temporary, not a permanent change either to add or subtract… The words of the Sifrei are ‘to him shall you listen’; even if he tells you to violate temporarily one of the mitzvos that are written in the Torah, listen to him.”

B.     Someone who does not follow the commandment of the prophet – Hashem will exact punishment from him. Chazal tell us that the punishment is quite severe.

C.     If the prophet claims to speak in Hashem’s Name and he had received no such commandment – such a “prophet” should be executed.

D.    Someone who meets all the requirements of a true prophet, but relates a prophetic vision in the name of an idol or other foreign god (anything that qualifies as avodah zarah) — this “prophet” should also be executed.

In the Rambam’s opinion, there is also another place in the Torah where this mitzvah is discussed. At the end of parshas Va’eschanan, the Torah writes, “Lo senasu es Hashem Elokeichem, do not test Hashem your G-d” (Devorim 6:16), which the Rambam explains to mean: Do not test the promises or warnings that Hashem sent to us via His prophets, by casting doubt on the veracity of a prophet after he has proven his authenticity. This mitzvah is similarly quoted by the Sefer Hachinuch, who calls this mitzvah (#424 in his count): “Not to test a true prophet more than necessary.”

This leads us to the following question: What are we to do when someone seems to have the right qualifications for a prophet, and he tells us that he received a prophetic vision? The prohibition just described is only after he has demonstrated adequately that he is, indeed, a navi. How does he prove that he is an authentic navi?

Who is prophetable?

First, we need to establish that there are pre-requisite qualifications that must be met by a navi. The Gemara (Nedarim 38a) states: “Hashem places his presence only on someone who is physically powerful, wealthy, wise and humble.” The Gemara proceeds to prove that we know these factors from the fact that Moshe Rabbeinu was physically strong enough to assemble the Mishkan on his own, and that he was extremely wealthy from the trimmings of precious stone that he collected when he chiseled out the second luchos.

The Rambam adds a few other qualities that a prophet must always exhibit: “Among the most basic concepts of religion is to know that Hashem communicates with people. Prophecy happens only to a very wise talmid chacham who is in total control of his personality traits, whose yetzer hora never controls him – rather, he is in control of his yetzer hora, always. He must also be someone with tremendous and correct understanding. Someone filled with all these qualities, who is physically complete and healthy, when he begins studying the deeper aspects of Torah and is drawn into these great topics, develops great understanding, becomes sanctified and continues to grow spiritually, separates himself from the ways of common people who follow the darkness of the time, and instead, he is constantly growing and spurring himself onward. He teaches himself to control his thoughts so as not to think of things that have no value. Rather, his thoughts should always be engaged with the ‘Throne of Hashem’, in his attempts to understand holy and pure ideas.… When the spirit of Hashem rests upon him, his soul becomes mixed with that of the angels… and he becomes a new person who understands that he is no longer the same as he was before, but that he has become elevated beyond the level of other talmidei chachamim” (Hilchos Yesodei HaTorah 7:1).

Net prophets

When the prophet reveals his first prophecy, the posuk that we quoted above teaches: “How am I to know which word was not said by Hashem?” (The answer is): “That which the prophet says in the name of Hashem (that it will miraculously happen) and the matter does not transpire, this is for certain something that Hashem never said.”

This posuk teaches that, in addition to having all the requisite personal qualities, a navi must foretell the future in the Name of Hashem in order to qualify as a navi. There is a dispute between Rav Sa’adiyah Gaon and the Rambam what type of “prophecy” must be demonstrated to prove that he is a prophet. According to Rav Sa’adiyah, the prophet must perform something that is supernatural, such as Moshe did when he turned water into blood, or the stick into a snake. This is because the navi, functioning as a messenger of Hashem, would have been provided by Him with a sign that only Hashem could accomplish, such as preventing water from running downhill, or stopping a heavenly body in its course (Emunos Udei’os 3:4). (This is also the opinion of the Abarbanel in parshas Shoftim.)

On the other hand, the Rambam (Hilchos Yesodei HaTorah 10:2) disagrees, stating:

“Any prophet who arises and says that Hashem sent him does not need to produce a sign on the level of what Moshe Rabbeinu did, or Eliyahu or Elisha, which was completely supernatural. It is sufficient that he prophesy, saying that something will happen in the future, and his words come true.… Therefore, when a man appropriate to being a navi comes… we do not tell him, ‘Let us see you split the sea, or bring the dead back to life, or anything similar, in order that we can believe you’. Rather, we tell him: ‘If you are indeed a prophet, foretell something that will happen.’ When he foretells, we then wait to see if it happens. If it does not happen, even if something small of his prophecy does not happen, we know for certain that he is a false prophet. If his words are entirely fulfilled, you should consider him to be truthful. We then proceed to check him several times; if each time his words are exactly fulfilled, we consider him a true prophet.”

According to some acharonim (Arba’ah Turei Aven), we test him three times, just as Moshe Rabbeinu was given three signs. If he meets all the requirements of a navi and foretells the future, perfectly and accurately, three times, we are required to follow what he tells us to do, and, when we do so, we accomplish the mitzvah of the Torah.

If he predicts that something will happen and it does not, we know that he is a false prophet. In any of these cases where we are not permitted to obey his words, the Sanhedrin would subject him to capital punishment as a false prophet.

Prophets on prophets

There is another way that a navi can be verified as such, without his producing a miracle or foretelling the future. If someone we already know to be a prophet testifies that an individual who meets the personal requirements of a prophet is indeed a navi, the second individual should be accepted immediately as a prophet (Rambam, Hilchos Yesodei HaTorah 10:5). The proof for this is that Yehoshua became accepted as a prophet on Moshe Rabbeinu’s say-so, without producing any miracles or foretelling the future. (The miracles he performed were done later, after he already had been accepted as a navi.)

Gross prophet

What is the halacha if someone who clearly does not meet the personal requirements that we have described tells us that Hashem spoke to him. Let us even assume that he foretells the future successfully, or that he performs miracles. What is the halacha?

The halacha is that he is considered a false prophet. When the batei din had the ability to carry out capital punishment, he would be executed by them. Since our batei din do not have this ability today, we can excommunicate him or banish him, to mitigate the harm he causes. This was done many times in our past, when we were confronted by false prophets. In other words, it is non-prophetable to have him among the Jewish people.

Highly prophetable

The halacha is that once he proved he is a prophet, we are required to obey him, even if he tells us to do something that is counter to a mitzvah or is usually prohibited. The two exceptions are if he tells us that he is changing something of the Torah permanently, or if tells us to violate the prohibition of avodah zarah. In either of these two situations, the Torah tells us that he is a false prophet, even if his tests were true.

Is this a prophetable venture?

At this point, we can analyze our opening question: “Obviously, I never met either the Chofeitz Chayim or Rav Aryeh Levin, but there is a great tzadik in our neighborhood, a big talmid chacham and a mekubal, who is never involved in what is going on. Today, he came to me, quietly, and told me that Hashem appeared to him in a vision and instructed him to tell me that this coming Shabbos, but only this Shabbos, I am supposed to drive him somewhere in my car. Am I supposed to listen to him?”

Let us assume that this talmid chacham/mekubal meets all the requirements that the halacha requires, as quoted above. He now needs to meet the next challenge: According to Rav Sa’adiyah and the Abarbanel, he must perform a miracle that defies nature as we know it. According to the Rambam, he must successfully predict future events several times, without a single detail varying from his description and without any incorrect prediction. If his prophecy is inaccurate even in a slight detail, he is subject to the death penalty, if Sanhedrin can carry out this ruling. Since we have no Sanhedrin today, he would be ruled as a rosho, notwithstanding his other fine qualities.

Personally, I would think that he is probably suffering from some mental illness, and I would recommend that he have a full psychiatric evaluation. I do not think that he is evil; I think that he is ill.

Prophetable brochos

At this point, let us examine our second opening question: The brocha we recite prior to reading the haftarah states that Hashem “desired the words of the prophets that are said in truth.” This brocha requires explanation: Of course, Hashem desires the words of the prophets – He was the One Who sent them the message in the first place! What does this brocha mean?

We can answer this question by realizing the following: With the exception of Moshe Rabbeinu, Hashem communicated to the prophets in a vision, not in words. The prophet, himself, put the ideas he had seen, heard and understood into his own words. It is for this reason that the Midrash teaches that ein shenei nevi’im misnabe’im besignon echad, it will never happen that two prophets recite the exact same words of prophecy (Pesikta and Midrash Seichel Tov, Parshas Va’eira 9:14). Each prophet still maintains some of his own personality and upbringing that will reflect itself in the way he describes what he saw. Yet, the final words, which are the words of the prophet, “their words,” are still “said in truth” – meaning that notwithstanding the personal imprint of the prophet on what he said, the words all convey Hashem’s absolute intent.

Conclusion

In the Sefer Hachinuch, mitzvah #424 is: “Not to test a true prophet too much.” He explains that, if we test the navi after he has adequately proved his veracity, those jealous of him or pained by his success may use excessive testing as an excuse not to listen to his commandments. In other words, they will deny his authenticity unjustifiably, by claiming that he has as yet not been tested sufficiently. Thus, we see that even something so obvious as the ability of a great tzadik to foretell the future can be denied by people, when they don’t want to accept the truth!

The Talis Exchange and Other Lost Stories

Chazal teach us that in the merit of Avraham saying to the king of Sodom that he would not accept even a thread from him, his descendants received the mitzvah of tzitzis.

Question #1: THE TALIS EXCHANGE

Dovid asked me the following shaylah: “I put down my talis in shul and, upon returning, discovered that it had been replaced with a similar-looking talis. I left the talis undisturbed, and hung up a sign noting the exchange. Unfortunately, no one responded, and, indeed, the owner may not even realize that he has my talis. Should I take his talis home? May I use it, or must I purchase a new one and leave his until he claims it, which may never happen?”

Question #2: THE LAUNDRY EXCHANGE

A laundry returned the correct quantity of items that had been brought originally; however, the customer, Reuvein, later realized that one sheet was not his. A different customer, Shimon, picked up his laundry and was missing some items; however the laundry insisted that it had returned whatever was brought. Shimon subsequently discovered that Reuvein had one of Shimon’s missing sheets and he clearly identified his missing sheet. Reuvein claimed that the sheet was a replacement for his sheet that was lost and that he is therefore not required to return it. Must he return the sheet?

Question #3: THE WEDDING EXCHANGE

Someone went to a wedding wearing one coat and mistakenly returned home with a different one. May he use this coat and assume that the other party is agreeable to the exchange? Does this depend on which coat is more valuable?

Question #4: AN UMBRELLA ON THE SUBWAY

On the subway you see a frum, unfamiliar person rush off the car, forgetting her umbrella. May you keep or use the umbrella, knowing that the owner will soon realize her loss?

SHO’EL SHELO MIDAAS

The concern in all these situations is that one is using someone else’s property without permission. This is called sho’el shelo midaas, borrowing without the owner’s knowledge, which is usually halachically equivalent to stealing(Bava Metzia 41a; 43b)! In general, one may not use an item until one receives permission from the owner.

CAN’T I JUST ACCEPT THE TRADE OF THE TWO ITEMS?

Since the loser is wearing my talis, why can’t I simply assume that we have traded taleisim; I’ll keep his talis and allow him to keep mine? (Although the correct Hebrew plural is taliyos or talisos, I will use the colloquial taleisim.)

Although Dovid may grant permission to the other person to use his talis,can he assume that he has permission to use the other person’s talis? Let us examine a relevant discussion:

EXCHANGED ITEMS AT THE TAILOR

Someone whose clothes were replaced with someone else’s at a tailor may use what he received until his garment is returned. However, if the exchange transpired at a shiva house or a simcha, he may not use the garment he received but must hold it until the owner claims his property. What is the difference between the two cases? Rav answered: “I was sitting with my uncle, and he explained to me, ‘Sometimes people tell the tailor to sell the item for them’” (Bava Basra 46a).

We see from this case that if I exchanged a coat with someone else at a simcha or at a shiva, I may not wear the coat,since I am “borrowing” it without permission. The fact that the other person is using my garment, knowingly or unknowingly, does not permit me to use his. I may have to purchase a replacement, even though a perfectly nice garment is sitting unused in my closet, since the garment is not mine.

However, if the exchange happened in a tailor shop, I may use the replacement.

WHAT IS THE DIFFERENCE BETWEEN A TAILOR AND A WEDDING?

Why is the tailor shop different? The Gemara presents a rather cryptic answer to this question: “Sometimes people tell the tailor to sell the item for them.” What does this mean?

The early poskim explain that when the exchange transpired in a repair shop, one may assume that the following situation occurred:

Someone brought a garment to the tailor, asking him to sell it for him. The tailor erred and sold your garment instead and then paid the money received (minus his sales commission) to the original owner of that garment. When you came to claim your garment, the tailor realized his error, and also realized that he must compensate you for your item, since he probably has no way to retrieve it. However, he had no cash available,so he gave you a replacement instead – the garment that he was supposed to sell (Tur and Sma, Choshen Mishpat 136:1). Since the tailor already paid the original owner for his garment, he now owns it and he is fully authorized to give it to you as a replacement for your lost garment. This case is referred to as nischalfu keilim beveis ha’uman (items that were exchanged in a craftsman’s shop).

The next passage in the Gemara’s discussion is now almost self-explanatory:

Rav Chiya the son of Rav Nachman explained that the ruling of nischalfu keilim beveis ha’uman applies only if the repairman himself gave you the different garment, but not if his wife or children gave them to you.

Obviously, if the tailor’s wife or child gave you the wrong garment, you cannot assume that this was because of the tailor’s earlier error. It is more likely that they simply mistakenly gave you the wrong garment, which needs to be returned.

Similarly, the following concluding passage of this discussion is clear.

Rav Chiya the son of Rav Nachman continued: The halacha of nischalfu keilim beveis ha’uman applies only if the repairman told you, “Here is a garment.” However if he said “Here is your garment,” we assume that he erred, since he is not giving you your garment.

If the tailor had sold your garment in error and is now sheepishly providing you with a replacement, he would not tell you, here is your garment. Therefore, if he says here is your garment, we assume he must have mistakenly given you the wrong garment, and you must return it.

We see clearly that the ruling of nischalfu keilim beveis ha’uman applies only when I can assume that a tailor or other repairman inadvertently sold or disposed of my item and can legitimately offer me the replacement. Otherwise the situation is comparable to the case of garments exchanged at a simcha, where one may not use the received garment without permission.

At this point we can analyze Question #2.

A laundry returned to Reuvein the same number of items he had brought originally; however, one sheet is not his. Shimon claims to be missing some items, which the laundry denies. Shimon proves that the sheet is his, yet Reuvein claims that the laundry gave it to him as a replacement for what they lost and that he is therefore not required to return it. Must he return the sheet?

Answer: Shimon did not give the sheet to the laundry to sell. Therefore, the laundry gave Shimon’s sheet to Reuven without authorization and he must return it to its rightful owner, even if Reuven has no other way of being compensated for his loss (Terumas Hadeshen #319; one of the interesting and surprising aspects of this shaylah is that this actual case was asked over 600 years ago!!).

The reason for this is obvious: Laundries do not usually act as agents to sell people’s clothing, and in any case, Shimon clearly denies ever making any such arrangement.

SO, WHAT IS THE STATUS OF THE TALIS?

Let us return to our original question. Someone took Dovid’s talis and left behind a similar-looking one. The owner has not responded to any of his notices, and Dovid suspects that he does not even realize that an exchange transpired.

Based on the above discussion, it would seem that Dovid has no choice but to consider purchasing a new talis. However, there is another Gemara discussion that affects our case, so don’t run to the store just yet. Let us examine the following passage:

Shmuel said, “Someone who finds tefillin in the street should estimate their worth and may wear them himself” (Bava Metzia 29b). If the finder has no need for a pair of tefillin, he may sell them and put the money aside for the owner. The Rosh (Bava Metzia 2:16) rules that the finder may even use the money in the interim.

Shmuel’s statement presents some obvious questions:

His ruling seems to contradict the principle that borrowing an item without permission is tantamount to theft. Why can the finder wear (or sell) these tefillin? As we are all aware, one of the Torah’s mitzvos is to return a lost object to its owner (Devorim 22:1-3; Shemos 23:4). How does the Gemara permit the tefillin finder to wear them and not return them to the owner? And even if we correctly assume that “estimating their worth” means that he is responsible to return the value of the tefillin to its owner if and when he locates him, why is this case different from the normal obligation of returning the actual lost item itself to its owner? Obviously, there must be something about tefillin that permits the finder to keep them and simply repay their estimated value.

Some poskim contend that this ruling applies only to a mitzvah object, where the owner wants someone else to use his tefillin rather than have them sit unused (Shach 267:16, in explanation of the Rambam, Hilchos Gezeilah 13:14). However, most authorities imply that this ruling also applies to non-mitzvah items, in cases where the owner is satisfied with simply receiving back their value (see Tur and Shulchan Aruch, Choshen Mishpat 267:21). The basis for this second opinion is the continuation of the Gemara’s discussion:

TEFILLIN VERSUS SEFORIM

The Gemara asks why someone finding tefillin may wear them, since this ruling appears to contradict a statement that someone who found books may not use them, but must hold them for the owner. Why are tefillin different from seforim? The Gemara answers that a person wants to receive back his own books, whereas he can always purchase new tefillin. This implies that people have no strong attachment to any specific pair of tefillin, whereas they have tremendous interest in seforim that are difficult to replace. From this one could infer that there is a difference between finding an item that the owner does not mind replacing and finding an item that he does not want to replace, and this would seem to have ramifications for someone who finds a talis, an umbrella, or some other easy to replace item.

Although this seems to be the obvious point of this Gemara, elsewhere the Gemara seems to rule otherwise. If someone found coins placed in a deliberate fashion, the finder may not spend this money and replace it with other coins, but must hold these very coins and return them to their owner (Bava Metzia 29b). Obviously, the owner is not concerned about receiving back these specific coins, and would be very satisfied with receiving replacement money. Why is it not sufficient to simply return coins of the same value? We see that returning replacement value is not satisfactory, even when the owner does not care.

The answer is that in the case of lost tefillin, two factors must be met before one may use them. In addition to the point mentioned above, another consideration is that someone who finds tefillin must occasionally air them out and ensure that they are kept dry (Rosh, Bava Metzia 2:18). (When a person wears tefillin daily, he automatically airs them out at the same time, which benefits them.) Thus, the owner of the tefillin actually benefits more if the finder sets aside money, since the tefillin will become ruined if no one takes proper care of them. This is qualitatively different from finding lost coins, which require no care other than storing them in a secure place.

We can therefore derive the following principles:

If taking care of a lost item requires some effort, and the owner does not care whether he receives back the original item, the finder may estimate the value of the lost item and plan to repay the owner this amount. Otherwise, the finder should hold the lost item and await the owner’s return.

Having established the rule, let us see which cases fit the rule and which do not. Clothing does not usually fit this rule, since people are interested in receiving back the same garment. A person is comfortable with his own clothes, and often purchasing something to one’s taste is not a simple matter. Therefore, someone finding a lost garment may not sell it and hold the money for the owner.

ARE UMBRELLAS AND TALEISIM LIKE TEFILLIN?

On the other hand, the average person does not develop a personal attachment to his umbrella and is perfectly satisfied to have a usable replacement umbrella. Similarly, a man is usually not that concerned about his specific talis and is satisfied with a replacement. In addition, both of these items are comparable to tefillin and not to coins, since if they are never used they become musty. (Normal use of an umbrella airs it out.) Therefore, someone who locates a lost umbrella may use it after estimating its value.

We are now prepared to answer Question #1 and also Question #4. I will answer Question #4 first: On the subway you see a frum but unfamiliar person rush off the car, forgetting her umbrella. May you keep or use the umbrella, knowing that the owner will soon realize her loss?

Clearly, she will despair of recovering her umbrella as soon as she realizes her loss (yi’ush), and if pick it up after she realizes that she left it on the subway, you are not responsible to return it or its value. Nevertheless, in this subway scenario, you will be picking up the umbrella before she realizes her loss.  In that case,  the umbrella is still the property of the person who lost it and someone picking it up is responsible to return it.

However, a person is usually not concerned about owning a specific umbrella, but is satisfied with money to purchase a replacement. (Indeed, if the umbrella that was lost appears to be a designer umbrella, the halacha will be different.) Therefore, even though the owner still owned the umbrella when you found it, you may claim the umbrella as your own, and simply make a mental note how much it is worth. Should you ever meet its owner and she proves that the umbrella was hers, you must compensate her.

And now our analysis of our opening question, The Talis Exchange

Dovid had put down his talis in shul, and it was replaced by a similar-looking talis. His attempts to alert the owner were unsuccessful, and, indeed, the owner may not even notice the exchange. May Dovid use the other talis or must he purchase a new one?

I believe that most men do not feel attached to their particular taleisim, and this case is therefore comparable to the tefillin case of the Gemara. Assuming this to be true, someone who finds a lost talis may estimate its value and then either wear it or sell it. Either way, he should record the value of the talis and intend to return it to the owner, should the owner ever return for it. When I first published this article, I received several responses disagreeing with me, contending that most people are more possessive of their taleisim than I felt.

PECULIARITIES

The careful reader may have noted that our discussion is heading to an unusual conclusion.Although the Gemara’s rules that the owner is less concerned about retrieving his tefillin than retrieving his seforim, today the opposite is generally true – an owner is usually not concerned about receiving backthe same sefer since one can usually purchase it again in a bookstore. (However, the Gemara’s halacha would remain true if he had written notes in the sefer, or it is a special edition that the owner would not be able to readily replace.)

On the other hand, many people own hand-picked tefillin and want their specific pair back (Minchas Elazar 4:9; see Pischei Choshen, Aveidah 6:ftn23). They may have purchased tefillin whose parshi’os were written by a specific sofer who no longer writes, or made by a specific batim macher who has a long waiting list. After analyzing the principles of the above-mentioned Gemara, the Minchas Elazar decides that the original owner gets his tefillin back. Thus, although the principles of the Gemara are infinite, the specific cases that match them change with society.

Returning lost items is a beautiful and important mitzvah. As we now see, the details of observing this mitzvah are often very complicated – and can vary from item to item.

May a Non-Jew Own a Nectarine Tree?

Photo by Philipp Pilz from FreeImages

For that matter, may a Jew?

I once received the following query:

“I am not Jewish, but I observe the laws of Noahides as recorded in the writings of Maimonides, which I have read in the Yale University translation. I am aware that a gentile may not graft one species of tree onto another. Does owning a nectarine tree violate this prohibition? I would be greatly appreciative if you could answer this question, since I have just purchased a house with a nectarine tree in the yard.

Sincerely,

Jacqueline Baker

250 Washington Blvd.

Asheville, NC” (name and address have been changed)

Many of us reading the title of this article may have wondered, “If I am permitted to eat nectarines, why shouldn’t I own a nectarine tree?” Although the answer to this question is fairly straightforward, there are many other issues that need clarification, before we can answer Jacqueline’s shaylah.

First, let us explain the halachos of tree-grafting applicable to Jews. Sadly, because many Jews are unfamiliar with these halachos and unaware of the prevalence of grafted trees, they often, unwittingly, violate these laws.

Also, most people misunderstand the prohibition against kelayim, which is often translated as “mixed species.” People often understand this to mean a prohibition against hybridization or cross-breeding. Although it is true that the Torah prohibits crossbreeding different species of animal, virtually all other types of forbidden mixtures have nothing at all to do with hybridization. We list here the six types of prohibited mixtures, called kelayim.

1. Wearing shatnez, which is a mix of wool and linen.

2. Cross-breeding two animal species.

3. Using two animal species to haul or work together. This mitzvah is usually called lo sacharosh, do not plow with an ox and a donkey together.

4. Grafting different tree species. A sub-category of this prohibition is planting one species on top of or inside another species, a process that is virtually non-existent in contemporary agricultural practice.

5. Planting other crop species in a vineyard. For this purpose, “crop” refers to an annual (grows for only one year and then dies) edible plant. Examples are: seeds that are eaten, like beans, wheat, and sesame; root vegetables, like radish; leaves, such as lettuce; or fruit, such as tomatoes or melons.

6. Planting two crop species together or near one another. This prohibition applies only to species that are eaten.

Although we usually assume that the word kelayim means “mixture,” some commentaries explain that this word originates from the same Hebrew root as the word “prison,” beis ke’le. Thus, Rav Hirsch (Vayikra 19:19) explains that the root word כלא means to keep or hold something back, and that the plural form kelayim is similar to yadayim or raglayim and means a pair. Therefore, the word kelayim means to pair together two items that should be kept apart.

In order to explain the prohibition against grafting trees, the subject of our article, I will first provide some scientific background for city dwellers like myself, who know almost nothing about gardening and horticulture. Having been a city slicker almost my whole life, I freely admit that I knew little about this subject until I did some research in order to understand the halacha.

Hybridization (cross-breeding) of plants occurs when one pollinates the flower of one species with pollen from a different species. However, most of the prohibitions of kelayim have nothing to do with cross-breeding species. In the case of “herbaceous plants,” that is, plants other than perennial (live for many years) trees and shrubs, kelayim is a prohibition against planting two crop species close together. Halacha prohibits planting a crop species inside a vineyard, planting one species too close to another already planted species (distances vary according to how many plants are growing together), planting one species on top of or inside another species, and sowing the seeds of two species together. Incidentally, these prohibitions apply only in Eretz Yisrael, with the exception of planting a crop species in a vineyard (Kiddushin 39a) and, possibly, of planting one species inside another (see Gemara and Tosafos, Chullin 60a; Rambam, Hilchos  Kelayim 1:5 and Radbaz). Thus, someone in chutz la’aretz may plant his backyard garden with a wide variety of vegetables and other edibles without any halachic concern, whereas in Eretz Yisrael, someone planting a garden patch must be very careful to keep the different species separate. The complicated question of how far apart to plant them, and what qualifies as a valid separation if one plants them close together, is beyond the scope of this article (see Chazon Ish, Hilchos Kelayim 6:1).

(By the way, the halachic definition of a species often differs from scientific definition. For example, although some scientists consider wolves and dogs to be the same species, halacha does not; therefore, one may not crossbreed them or use them to haul a load together [Mishnah, Kelayim 1:6]. On the other hand, the Chazon Ish [3:7] discusses whether all citrus fruits are the same species regarding the laws of kelayim, which would permit grafting a grapefruit branch onto a lemon rootstock, whereas scientists consider them to be two distinct species.)

HARKAVAS ILAN – CROSS-GRAFTING

The laws of kelayim also prohibit grafting a branch of one species of tree onto the root stock, or lower trunk, of another species. Although a town dweller may feel that this is a rare occurrence, in fact, contemporary plant nurseries and tree farmers usually graft branches of a species that produces delicious fruit onto the hardier stock of a different species.

For example, most modern peach and nectarine trees are produced by grafting a peach or nectarine branch onto the stock of a hardier, botanically-related tree, such as an almond. As I will explain, someone who performs this, either in Eretz Yisrael or in chutz la’aretz, violates a Torah prohibition. According to many authorities, a non-Jew is also commanded regarding this mitzvah. This latter opinion contends that a Jew who causes a non-Jew to graft such a tree, or even to prune or water it after grafting was done, contravenes lifnei iveir, causing someone else to violate a prohibition.

Because so many trees are grafted nowadays, someone who owns a peach tree should have a horticultural expert check whether its rootstock is also a peach tree, or whether it is of a different species. If the stock is peach, even of a different variety, he may keep the tree; if the stock is of a different species, he should chop off the tree below the point of the graft. (Nobody has suggested that George Washington chopped down his father’s cherry tree because it was grafted onto a different species. Since George always strove for truth, however, this was, nonetheless, an additional good deed, at least according to some opinions.) As we will see shortly, there is no violation of bal tashchis in cutting down a grafted tree.

Often, even a non-expert can detect if a tree was grafted onto a different species by simply scrutinizing the tree. If the bark somewhere near the bottom of the tree looks very different from the upper part of the tree, this indicates that the upper part of the tree was grafted, possibly onto a different species. Before purchasing a new tree at a nursery, examine the trunk carefully for signs of grafting. If, indeed, this tree is the product of a graft onto a different species, then watering or pruning it violates a Torah law, as I will explain. Furthermore, one may not use a sprinkler to irrigate the rest of the lawn on which the tree stands, if this tree will benefit.

NECTARINE TREES

Nectarine trees are susceptible to a host of plant diseases, and, as a result, are usually grafted onto the stock of peach, plum, almond or other trees. It is unclear whether peach and nectarine are halachically considered the same species, but the other species are not the same, according to halacha. Therefore, watering a nectarine tree grafted onto a different species stock probably violates halacha.

By the way, according to halacha, one may plant or maintain different species of trees in close proximity, presumably because grown trees do not look mixed together but stand distinct.

DOES THE PROHIBITION AGAINST GRAFTING APPLY IN CHUTZ LA’ARETZ?

Although most agricultural mitzvos (mitzvos hateluyos ba’aretz), such as terumah, maaser, and shmittah apply only in Eretz Yisrael, some of these mitzvos apply also in chutz la’aretz, such as the mitzvah of orlah, which prohibits using fruit that grows on a tree before it is three years old.

Although the laws of orlah differ when the tree grows in chutz la’aretz, the fruit produced before the tree is three years old is nevertheless prohibited.

Where does kelayim fit into this picture? Of course, some kelayim prohibitions, such as shatnez, cross-breeding animals and lo sacharosh are not agricultural and, therefore, apply equally in Eretz Yisrael and in chutz la’aretz. Among the agricultural prohibitions of kelayim, some apply in chutz la’aretz also, whereas others apply only in Eretz Yisrael.

Planting vegetables and other edible crops together applies only in Eretz Yisrael, grafting trees applies equally in chutz la’aretz and in Eretz Yisrael min hatorah, while planting in a vineyard applies in chutz la’aretz, but only miderabbanan (Kiddushin 39a).

MAY I OWN KELAYIM?

The Gemara (Moed Katan 2b) cites a dispute whether maintaining kelayim in a vineyard (in Eretz Yisrael) is prohibited min hatorah. Rabbi Akiva contends that building a fence to assist the growth of the two different species together violates a Torah law, whereas the Sages contend that it does not (Rashi to Avodah Zarah 64a).

Most poskim conclude that one may not own kelayim in a vineyard, but must remove the plant that is causing kelayim (Shulchan Aruch Yoreh Deah 297:2). The Rambam (Hilchos  Kelayim 1:2) paskins that owning kelayim is prohibited only miderabbanan, whereas the Rosh (Hilchos  Kelayim #3) prohibits this min hatorah. (We should note that Shu’t Chasam Sofer [Yoreh Deah #282] contends that Tosafos [to Avodah Zarah 64a s.v. Rabbi Akiva] permits owning kelayim.)

WHAT ABOUT OWNING A GRAFTED TREE?

Most poskim assume that one may not own a kelayim tree, just as one may not own kelayim in a vineyard. Furthermore, they contend that this halacha applies, whether the tree is in Eretz Yisrael or in chutz la’aretz (Rosh, Hilchos  Kelayim Chapters 1& 3; Pischei Teshuvah, Yoreh Deah 295:2, quoting many poskim).

However, in times past, many observant Jews purchased agricultural properties that contained kelayim trees, and they did not cut down those trees. Was there any justification for their actions? Many halachic responsa discuss what was, apparently, a widespread practice in the eighteenth and nineteenth centuries. Whereas most poskim rule that these Jews violated the halacha, some authorities justify the practice of owning grafted trees, at least in chutz la’aretz (Shu’t Chasam Sofer, Yoreh Deah #288; cf. Aruch Hashulchan, Yoreh Deah 295:17-18). Even these opinions agree that it is preferred to follow the stricter approach and cut down the grafted part of the tree.

I THOUGHT THAT ONE MAY NOT CUT DOWN A FRUIT-BEARING TREE?

Although it is usually prohibited to chop down a tree that bears enough fruit to be profitable, this prohibition does not exist when owning the tree involves a prohibition. Furthermore, bal tashchis, generally, does not exist when one is trying to enhance one’s observance of mitzvos.

Nevertheless, it is preferred to have a non-Jew chop down the tree, since he has no mitzvah of bal tashchis.

DOES THE MITZVAH OF KELAYIM APPLY TO NON-JEWS?

In general, a non-Jew is required to observe only seven mitzvos. However, there are many opinions that require non-Jews to observe certain other mitzvos. The Gemara (Sanhedrin 56b) quotes a dispute concerning whether a non-Jew must observe certain of the kelayim mitzvos. According to the Sages, no aspect of the prohibition of kelayim applies to bnei Noach, whereas Rabbi Elazar contends that they are included in some of the kelayim prohibitions, but not others. Specifically, they are prohibited from mating different animal species and from grafting one species of fruit tree onto another, but they may plant different species together or in a vineyard, and they may wear shatnez.

Why are they included in some prohibitions but not others?

Describing the creation of plants, the Torah says: “And G-d said, ‘The earth shall sprout forth vegetation, herbage that produces seed; edible trees that produce fruit of their own species…’ And the earth produced vegetation, herbage that produces seed of its own species and trees that bear seed-bearing fruit of their own species” (Bereishis 1:11-12).

Reading the pasuk carefully, we see that Hashem ordered only the trees, and not the herbaceous plants, to “produce fruit of their own species.”

Even though the herbage did, in the end, produce “seed of its own species,” this was not because it was commanded. The Gemara derives from other sources that, just as the earth was commanded to keep tree species distinct, so, too, Adam harishon and all his descendants were commanded to keep these species distinct. But since the herbaceous world was never commanded to keep its species distinct, Adam was not commanded concerning this halacha. Therefore, although Jews may not plant different species together, bnei Noach may (Yerushalmi Kelayim 1:7, quoted by Gra, Yoreh Deah 295:2).

WHICH OPINION DO WE FOLLOW?

Do we rule like the Sages that a non-Jew is not included in the prohibition of harkavas ilan, or like Rabbi Elazar, that he is? The Rambam (Hilchos Melachim 10:6) rules like Rabbi Elazar, that a non-Jew may not graft one species of tree onto another, whereas the Ritva (Kiddushin 39a s.v. amar Rabbi Yochanan) and the Shach (Yoreh Deah 297:3) are lenient.

Although we usually follow the Rambam’s opinion, some poskim suggest that we might be able to rule leniently, if only a rabbinic prohibition is involved, such as where the grafted tree exists already and one is not watering or pruning it (Chazon Ish, Kelayim 1:1).

MS. BAKER’S SHAYLAH

I mentioned earlier that a Jew who prunes or waters a kelayim tree violates the Torah prohibition, whether in Eretz Yisrael or in chutz la’aretz. According to most authorities, one may not even own this tree, and one is required to cut down the grafted part. However, since this last prohibition is only miderabbanan, according to most poskim, non-Jews may allow a grafted tree to survive and may even build a fence around it, since they are not required to observe rabbinic prohibitions. (Compare, however, Shu’t Mahari Asad, Yoreh Deah #350 and Shu’t Maharsham 1:179.) Ms. Baker may not water or prune a grafted tree, because that is halachically equivalent to planting it, which is prohibited according to most opinions. In my opinion, she may also not operate her sprinkler system to irrigate her lawn, if the kelayim tree will benefit as a result.

May Ms. Baker ask another non-Jew to water her tree? The poskim dispute whether a non-Jew may ask or hire someone else to violate a mitzvah. Most contend that this is permissible, because the mitzvah of lifnei iveir, causing someone else to violate a mitzvah, does not apply to non-Jews (Tosafos, Avodah Zarah 16b s.v. lenachri). Other authorities (Ginas Veradim, Klal 43) prohibit this, basing themselves on earlier sources that prohibit a ben Noach from violating a transgression that logic tells us to avoid (Rabbeinu Nissim, Introduction to Shas).

MAY WE EAT THE FRUITS OF A GRAFTED TREE?

One may eat the fruits of a grafted tree (Rambam, Hilchos  Kelayim 1:7, based on Yerushalmi). One may even take the shoot of a grafted tree and plant it, after it has been severed from the original tree.

SEPARATION OF SPECIES

In all six types of kelayim mentioned above, the general criterion is to avoid the appearance of different species being intermingled.

Concerning this, Rav Hirsch (Vayikra 19:19) writes, “The Great Lawgiver of the world separates the countless numbers of His creations in all their manifold diversity, and assigns to each one of them a separate purpose and a separate form for its purpose.”

In addition, observing the laws of kelayim helps us remember how various species obeyed Hashem’s instructions to remain separate during their creation (the source for some halachos of kelayim, as we saw above). This reminds the contemplative Jew that if the plants heeded Hashem’s word during the Creation, how much more are we obligated to obey all His instructions.

The author thanks Dr. Joshua Klein of the Volcani Institute and Rabbi Shmuel Silinsky for their tremendous assistance in providing horticultural information for this article.

The Heter Mechirah Controversy

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

Photo by Rodolfo Belloli from FreeImagesOLYMPUS DIGITAL CAMERA

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

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

Let me explain the halachic issues that this product entails.

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

For the modern farmer, observing shmittah is indeed true mesiras nefesh, since, among the many other concerns that he has, he also risks losing customers who have been purchasing his products for years. For example, a farmer may be selling his citrus or avocado crop to a distributor in Europe who sells his produce throughout the European Community. If he informs his customer that he cannot export his produce during shmittah year, he risks losing the customer in the future.

Of course, a Jew realizes that Hashem provides parnasah and that observing a mitzvah will never hurt anyone. Therefore, a sincerely observant farmer obeys the Torah dictates, knowing that Hashem attends to all his needs. Indeed, recent shmittos have each had numerous miracles by which observant farmers were rewarded in this world for their halachic diligence. Who can possibly imagine what reward awaits them in Olam Haba!

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

WHAT IS HETER MECHIRAH?

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

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

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

HISTORY OF MODERN HETER MECHIRAH

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

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

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

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

THE BEGINNINGS OF A CONTROVERSY

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

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

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

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

What happened? Did the Jewish farmers observe the shmittah as instructed by the rabbonei Yerushalayim, or did they rely on heter mechirah? Although the very committed farmers observed shmittah according to the dictates of the gedolei Yerushalayim, many of the more marginally observant farmers acceded to the pressure and relied on heter mechirah. Apparently, many farmers were subjected to considerable financial and social pressure to evade observance of shmittah.

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

WHAT CHANGED?

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

Prior to the next shmittah, in 5663 (1903), Rav Hertz re-asked his shaylah from the rabbonim of Yerushalayim, Rav Shmuel Salant and the Aderes, Rav Eliyahu Dovid Rabinowitz Teumim (Rav Diskin had passed on in the meantime), since the original approval stipulated only that shmittah. These rabbonim felt that there was still a need for heter mechirah in 5663. Rav Hertz, himself, passed away before the heter mechirah was finalized, and his son-in-law, Rav Yosef Halevi, a talmid chacham of note, finalized the mechirah in his stead, following the instructions of the rabbonei Yerushalayim.

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

In addition, Rav Kook instituted a new aspect to heter mechirah. Prior to his time, the heter mechirah involved that the owner of the farm appointed a rav as his agent to sell the land, similar to what we usually do to arrange selling the chometz. Rav Kook added that a farmer who was not going to observe shmittah but did not appoint a rav to sell his land was included in the mechirah, since it is in his best interest to have some heter when he works his field, rather than totally desecrating the Holy Land in the holy year. Although there is merit in protecting the farmer from his sin, now, a practical question results that affects a consumer purchasing this farmer’s produce. If the farmer did not authorize the sale, perhaps the produce indeed has the sanctity of shmittah. For this latter reason, many individuals who might otherwise accept heter mechirah produce do not rely on this heter.

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

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

SELLING ERETZ YISROEL

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

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

Among contemporary poskim there is wide disagreement whether one may eat produce on the basis of heter mechirah. Some contend that one may, whereas others rule that both the produce and the pots used to cook this produce become non-kosher. Others follow a compromise position, accepting that the pots should not be considered non-kosher, although one should carefully avoid eating heter mechirah produce. Because of the halachic controversies involved, none of the major hechsherim in North America approve heter mechirah produce. Someone visiting Eretz Yisroel during shmittah who wants to maintain this standard should clarify his circumstances in advance.

FRUITS VERSUS VEGETABLES

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

SEFICHIM

The Torah permitted the use of any produce that grew on its own in a field that was not worked during shmittah. Unfortunately, though, even in the days of Chazal, it was common to find Jews who deceitfully ignored shmittah laws. One practice of unscrupulous farmers was to plant grain or vegetables and market them as produce that grew on its own. To make certain that these farmers did not benefit from their misdeeds, Chazal forbade all grains and vegetables, even those that grew on their own, a prohibition called sefichim, or plants that sprouted.

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

WHY NOT FRUIT?

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

PERENNIALS

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

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

“GUARDED PRODUCE”

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

The rishonim dispute whether this fruit is forbidden. Some contemporary poskim prohibit the use of heter mechirah fruit on the basis that since heter mechirah is invalid, this fruit is now considered shamur, “guarded,” and therefore forbidden. Other poskim permit the fruit, because they rule that working an orchard or treating it as private property does not prohibit its fruit (see Shu’t Igros Moshe, Orach Chayim 1:186).

BACK TO OUR CARROT MUFFINS

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

What would you advise?

How Much Must I Bensch?

Question:

I mistakenly recited al hamichyah, when I was required to bensch. Am I now required to bensch?

Introduction

Prior to answering our opening question, we need to review many of the basic laws of brachos after eating, and their sources, which will help us understand the topic at hand. Parshas Eikev opens by teaching that when we observe all of Hashem’s mitzvos, we will be rewarded with a beautiful land. Shortly afterwards, the Torah continues: Ki Hashem Elokecha me’viacha el eretz tovah… eretz chitah u’se’orah vegefen u’se’einah verimon eretz zeis shemen u’devash. Eretz asher lo bemiskeinus tochal bah lechem, lo sechsar kol bah.“For Hashem, your G-d, is bringing you to a good land… a land of wheat and barley, grape vines, figs and pomegranates, a land of olive oil and honey. A land where you will eat bread without poverty; you will be missing nothing” (Devorim 8:7-9).

Bensching in the Torah

The Torah then continues: Ve’achalta ve’savata uveirachta es Hashem Elokecha al ha’aretz hatovah asher nosan loch, “And when you eat and are satisfied, you shall bless Hashem, your G-d, for the good land that He gave you.” This wording implies that we are required to bensch min haTorah only when a person has eaten enough to be fully satisfied, and this is the halachic opinion of most, but not all, rishonim. This law has halachic ramifications for someone who is uncertain whether he has a requirement to recite bensching. This uncertainty might be due to the fact that he does not remember if he bensched, or he was delayed and does not know if he has missed the time in which he can still bensch. When his doubt involves a possible Torah requirement, the rule is safeik de’oraysa lechumra, and he should recite bensching. However, if his question is regarding a rabbinic requirement, then the rule is safeik brachos lehakeil, and he does not recite the bracha acharonah. According to most rishonim, someone who ate a full meal and now is uncertain whether he is required to bensch should do so. If he ate less than a full meal, he does not bensch in case of doubt.

The requirement to recite a bracha acharonah after eating a snack is only miderabbanan. Therefore, if someone has a doubt whether he is required to recite this bracha, he does not, because of the rule of safeik brachos lehakeil.

Three aspects

The wording of the posuk that we should bless Hashem al ha’aretz hatovah asher nosan loch, “for the good land that He gave you,” implies that, in addition to thanking Hashem for providing us with sustenance, our bensching must include a reference to Hashem granting us Eretz Yisroel. Furthermore, the Gemara (Brachos 48b) derives that bensching must include reference to Yerushalayim and the Beis Hamikdash. These three aspects are represented in the first three brachos that we recite in our bensching. The first bracha is thanks for the fact that Hashem provides us, and the entire world, with food and sustenance. The second bracha praises Him for having given us Eretz Yisroel; and the third bracha is for the special gift of Yerushalayim and the Beis Hamikdash. Since, unfortunately, the Beis Hamikdash is now destroyed, the third bracha emphasizes our plea that Hashem have mercy on the land and rebuild it.

The Gemara explains that Moshe established the first bracha of bensching when the man first fell in the desert, Yehoshua established the second bracha of bensching when the Jews entered Eretz Yisroel, and Dovid Hamelech and Shelomoh Hamelech established the third bracha of bensching – Dovid establishing the reference to Yisroel and Yerushalayim, and Shelomoh adding the reference to the Beis Hamikdash (Brachos 48b).

Borei Nefashos

As we are all aware, other than the full bensching, there are two forms of bracha acharonah that we recite after we eat. One is a short bracha that begins with the words borei nefashos, which we recite after eating foods not mentioned in the above pesukim, including, but not exclusively, items upon which we recite the brachos of shehakol and ha’adamah. According to all opinions, this bracha is required only because of a takkanas chachomim, but is not included under the Torah’s mitzvah.

Bracha mei’ein shalosh

The other bracha, colloquially referred to as al hamichyah, is called in halachic sources bracha mei’ein shalosh, literally, a bracha that abbreviates three. This is because this bracha acharonah includes all three of the themes that are included in the posuk, similar to the full bensching. The difference is that in al hamichya, each theme does not have its own separate bracha, whereas in the full bensching that we recite after eating bread, each theme does.

There are three types of bracha mei’ein shalosh. We recite most frequently al hamichyah, the version that is said after eating grain products other than bread. This bracha is derived from the fact that the Torah praises Eretz Yisroel as “a land of wheat and barley.” Although there are also three other grains upon which we recite al hamichyah, namely spelt, rye and oats, these three are considered halachically as sub-categories of wheat and barley.

The second version of bracha mei’ein shalosh, al ha’eitz, is recited after eating olives, dates, grapes, figs, and pomegranates, all of which are also included in these pesukim. The order I chose, which has halachic significance, is not the order of the posuk, but reflects the proximity of each fruit to the word eretz in the posuk.

Although dates are not mentioned explicitly, the honey referred to in the posuk is date honey, not bee honey. (Silan, or date syrup, often used today as a natural, although not dietetic, sweetener, is similar to date honey. Silan is usually produced by cooking dates into syrup, whereas date honey in earlier days was produced simply by crushing dates.)

The third version of the bracha mei’ein shalosh is recited after drinking wine or grape juice, also alluded to in the posuk as the product of grapes. This is the only instance in which we recite bracha mei’ein shalosh after consuming a beverage. It is a reflection of the prominence we give wine, also evidenced by such mitzvos as kiddush and havdalah, and the fact that wine is used for such ceremonies as weddings, sheva brachos, brissin and pidyon haben.

These three versions are not mutually exclusive. Someone who ate grain products and fruit includes both texts in his bracha, as does someone who ate grain products and wine. Someone who ate all three “special” foods recites a bracha that includes all three references.

We should note that, since the Torah mentions all these varieties of food, there are rishonim who contend that the requirement to recite a bracha after consuming them is min haTorah. There are many halachic ramifications that result from this issue; however, that sub-topic requires its own article.

Fourth bracha

Our full bensching also has a fourth bracha, which is usually referred to as Hatov vehameitiv, which was added to the bensching by Chazal after the destruction that took place in Beitar, two generations after the churban (Brachos 48b). We will leave discussing the details of that topic for a different time, but I want to point out that this explains why this theme is not mentioned in the bracha of al hamichyah. When Chazal added this bracha, they added it only to the full bensching and not to the abbreviated version that is al hamichyah.

Harachaman

Common custom is to add a long list of general requests (Avudraham, Seder Birchas Hamazon) followed by a recital of several pesukim, after the fourth bracha of bensching. The origin for this practice is a passage of Gemara (Brachos 46a) that quotes a text that a guest should recite to bless his host. There, the Gemara quotes a basic bracha and then notes that others added to it. Based on this background, the Rambam (Hilchos Brachos 2:7) teaches that a guest can freely add to this blessing, and this has generated various additional texts to this bracha.

In his monumental work, Even Ha’azel, Rav Isser Zalman Meltzer notes that, according to the Rambam, the prayer of the guest for the host is an addendum to the fourth bracha of bensching. It would appear that, in the Rambam’s opinion, a person should not answer “amen” when a guest recites the words leolam al yechasreinu, since he has not yet completed his bracha until he blesses the host. This approach is not accepted, practically. The opinion of other halachic authorities (Avudraham, Seder Birchas Hamazon) as well as prevailing custom is to recite the blessing for the host a bit later in the bensching, after other prayers beginning with word Harachaman have already been expressed.

With time, many other requests were added to the bensching. Some individuals follow the practice of the Gra and recite these prayers only on weekdays, but not on Shabbos and Yom Tov when we generally do not make personal prayer requests, although theaccepted halachic practice is to recite these prayers and blessings on Shabbos, also.

Three brachos or one?

We noted above that the Torah requires the mention of three topics in our bensching, (1) thanks for sustenance, (2) thanks for the Land of Israel, and (3) a prayer for Yerushalayim and the Beis Hamikdash. However, it is disputed whether the Torah requires that each of these three themes have its own bracha, and that bensching min haTorah must contain at least three different brachos, or whether the Torah requirement is fulfilled by reciting one bracha that emphasizes the three different themes, and reciting three different brachos is only a rabbinic requirement.

There are several differences in practical halacha that result from this dispute.  One obvious difference is that, although one is certainly required to recite all the brachos of bensching, according to one approach, this requirement is only miderabbanan,whereas, according to the other approach, reciting three brachos is required min haTorah. We will soon see other halachic differences that result from this dispute.

This question, whether bensching min haTorah must contain at least three different brachos, or whether the Torah requirement is fulfilled by reciting one bracha, is the subject of a dispute between Tosafos and the Rambam. The opinion of Tosafos is stated in his comments germane to the following topic, to which I provide an introduction:

There is a general Talmudic assumption that a worker who is hired for a day is required to work a full day, and that taking time to check his personal email or to make a phone call violates his contractual obligation to his employer. (In today’s world, when it is assumed that a worker may take an occasional coffee break, presumably one may take time off that is assumed to be included in one’s work schedule. However, doing anything else at the time that a person is obligated to work for someone is certainly forbidden.)

In this context, the Gemara (Brachos 16a) quotes the following beraisa:

“Hired workers are required to read the Shema and to pray. When they eat bread, they are not required to recite a bracha before eating, but after eating they are required to recite two brachos. Which two brachos do they recite? The first bracha of bensching is recited in its usual fashion. The second bracha begins the way it usually begins, but includes the third bracha.” In other words, the Gemara assumes that the worker’s responsibility to his employer is more important than his requirement to recite the full bensching!

Tosafos, there, notes: “Although reciting both the second and third bracha is required min haTorah, the Sages have the ability to uproot a Torah requirement for the benefit of these workers, who are occupied with performing the work of their employer.” In order to explain how a worker is permitted to omit a bracha of the bensching, Tosafos utilizes a halachic principle called yeish koach be’yad chachomim la’akor davar min haTorah, that the Sages have the ability to “uproot” a law of the Torah, when deemed necessary. It is clear that Tosafos assumes that the requirement to recite three brachos is min haTorah.

In his monumental anthology, in which he gathers all the earlier halachic opinions, the Beis Yosef (Orach Chayim 191) indeed quotes Tosafos’ approach, but then disagrees, contending that there is no need to apply the principle of yeish koach be’yad chachomim la’akor davar min haTorah in this case. To quote the Beis Yosef: “It appears to me that there is no need for this answer, since there is no requirement min haTorah to recite several brachos to fulfill the mitzvah of birchas hamazon. This can be demonstrated from the words of the Rambam in his Sefer Hamitzvos, in which he writes: ‘The nineteenth mitzvah is that we are commanded to bless Him after eating.’ The Rambam makes no mention that there is a Torah requirement to recite several brachos. Notwithstanding that the Gemara derives the requirement of three brachos from verses, these derivations are only asmachta (which means that the requirement to do so is only rabbinic).”

In other words, although one is required min haTorah to mention all three themes, there is no Torah requirement that each theme have its own bracha. That requirement is only rabbinic. Since Chazal were the source of the requirement to recite three brachos for bensching, they had the ability to dispense with the requirement to recite all three brachos in the case of the hired worker. Thus, in the Beis Yosef’s opinion, whether three brachos are required min haTorah is a dispute between Tosafos and the Rambam, and the halacha follows the Rambam’s approach,that the requirement to recite three brachos is only miderabbanan. Those who disagree with the Rambam and contend that all three brachos are required min haTorah will be forced to find a way of explaining why the workers are exempt from reciting a full bensching, and will probably have to follow Tosafos’ difficult approach to resolve the conundrum.

It is significant that the Bach, in his commentary on the same chapter of Tur Orach Chayim,agrees that the Rambam rules that the requirement to recite three brachos for bensching is not min haTorah, but contends that his opinion is the minority. The Bach concludes that Tosafos’ approach is the primary one. In other words, both the Beis Yosef and the Bach recognize that there is a dispute among the rishonim whether we are required min haTorah to recite three brachos for bensching; they dispute regarding which of these approaches is considered the normative halacha.

Al hamichyah

Here is another practical difference that results from this dispute: According to the Beis Yosef, someone who recited al hamichyah when he was required to recite the full bensching has fulfilled his requirement min haTorah, although he has not fulfilled his requirement miderabbanan. A ramification of this will be that if he recited al hamichyah and he has a safeik whether he is required to recite the entire bensching, he will neither be required nor permitted to recite the full bensching. Since he has fulfilled his Torah requirement and what remains is an unresolved question regarding a rabbinic requirement, the rule of safeik brachos lehakeil applies.

However, according to the Bach, someone who recited al hamichyah when he was required to recite the full bensching may be missing a Torah requirement to recite three brachos.  This could mean that the rule of safeik de’oraysa lechumra applies, and he is required to repeat the bensching.

Uncertain identity

This analysis may explain exactly such a dispute between the Beis Yosef and the Bach that appears in a different context (Orach Chayim 168). The question concerns a food about which there is an unresolved question whether it is considered regular bread, requiring full bensching, or whether its bracha is mezonos, after which one should recite al hamichyah. The Beis Yosef appears to hold that one may eat the food and recite al hamichyah afterwards, whereas the Bach does not permit this approach, insisting that such a food should be eaten only as part of a regular bread meal in which hamotzi and full bensching were recited for the regular bread. Apparently, the Beis Yosef considers al hamichyah to be a type of bensching, whereas the Bach rejects this approach, which implies that they are consistently following the positions that each advocated in chapter 191.

Before we close, let us return to our opening question, which we can now resolve:

“I mistakenly recited al hamichyah, when I was required to bensch. Am I now required to bensch?”

The answer is that in this instance, one is required to bensch to fulfill the recitation of the three brachos that Chazal instituted. However, if there is a safeik whether there is a requirement to bensch, then, according to the Beis Yosef, since one has already fulfilled his Torah obligation by reciting al hamichyah, there is neither a requirement, nor should one bensch.

Conclusion

According to the Gemara (Bava Kamma 30a), someone who desires to become exemplary in his spiritual behavior should toil in understanding the laws of brachos. By investing energy in understanding the details of how we praise Hashem, we realize the importance of each aspect of that praise, and how we must recognize that everything we have is a gift from Him.

Honor the Elderly!

In the aseres hadibros, honoring parents features significantly, thus, we will discuss:

Question #1: Respect your elders?!

“Am I required to stand up anytime I see a senior citizen walking down the street?”

Question #2: Age before wisdom?!

“I give a daf yomi shiur. Many of those who attend are old enough to be my grandfather. Am I required to stand up for them when they arrive at the shiur?”

Question #3: Elder older?

“Does one older person need to stand up for another older person?”

Introduction

In parshas Kedoshim, the Torah teaches that there is a mitzvah to stand up before an older person and to treat a “zakein” with respect. The words of the posuk are: Mipnei seivah takum vehadarta penei zakein, “you should stand up for an older person and treat an ‘elder’ with respect” (Vayikra 19:32).

To begin with, we will raise several additional questions: How old does the person need to be to qualify as being “older”? Does it make a difference if it is an older man or an older woman? For how long must I remain standing? Is there any difference between someone who is “older,” in lashon kodesh, seivah, and someone who is an “elder,” which is the way I translated the word zakein? Is a demonstration of respect required, regardless of how religiously observant the older person is?

Elder or older?

I was very deliberate to translate the word zakein as “elder.” Indeed, the lashon kodesh word zakein, and the English word elder, carry the same two different meanings. The word zakein can mean an older person, but it can also mean a scholar, or someone who is respected for his sage advice and leadership qualities. Both meanings are similarly included in the English word “elder,” but not necessarily in the word “older.” Thus, the expression, “respect your elders,” does not have to refer to someone older than you are, since there can be a young elder, but it is difficult to have a young older.

The Gemara (Kiddushin 32b) presents a three-way dispute as to what type of older person, or “zakein,” is included in the mitzvah. According to the tanna kamma, the mitzvah applies only to someone who is both a Torah scholar and elderly. In his opinion, there is no requirement to stand up for a profound Torah scholar who is young. Rabbi Yosi Hagelili disagrees, contending that there is a mitzvah to rise and show respect both to an older person who is not a profound scholar, as long as he knows some Torah, and to a Torah scholar, even if he is young. A third tanna, Isi ben Yehudah, rules that there is a requirement to stand up for any Torah scholar and for an older person, provided the older person is basically Torah observant. (This reflects the opinion of Rabbeinu Tam, which is the approach accepted by the halachic authorities. According to Rashi, Isi ben Yehudah requires standing up for an older person, even if he is willingly non-observant, and even if he is a rosho.)

The Gemara (Kiddushin 32b-33a) concludes that the halacha follows the third tanna, Isi ben Yehudah, which is accepted by the halachic authorities. Thus, there is a requirement to stand up for an older person, if he is halachically observant, even if he is not a scholar.

The Rambam’s conclusion is that a young talmid chochom should demonstrate honor to someone elderly, even if the older person is not a talmid chochom. This means that he is required to rise slightly to demonstrate honor, but he is not required to stand up fully (Hilchos Talmud Torah 6:9, as explained by Tur Yoreh Deah 244 and later authorities). The poskim refer to this demonstration of honor as hiddur.

There is a minority opinion that no one is required to stand up fully before an older person who is not a Torah scholar, and that it is sufficient to rise slightly (hiddur), as a show of honor (Shu”t Binyamin Ze’ev #243; see Aruch Hashulchan, Yoreh Deah 244:10). However, the Tur (Yoreh Deah 244) and most later authorities do not accept this approach. They conclude that it is a mitzvas aseih min haTorah for anyone but a talmid chochom to stand up for an older person.

Why is a talmid chochom exempt?

This sounds strange! Where else do we have a mitzvah that applies to everyone but a talmid chochom? The answer is that the Torah’s mitzvah is to show respect to Torah scholars and to elderly people who are Torah observant. Of the two categories, a Torah scholar deserves greater respect. If a talmid chochom were obligated to stand up for a non-educated elderly person, this would mean that the Torah is respecting age before wisdom. In fact, the Torah respects Torah wisdom before age.

Nevertheless, the “young” talmid chochom should rise slightly to demonstrate his respect for the older person. Since rising slightly, without standing up completely, is not a tircha, this is not considered showing disrespect to the Torah that the young talmid chochom represents.

Age before wisdom?!

At this point, let us address the second of our opening questions: “I give a daf yomi shiur. Many of those who attend are old enough to be my grandfather. Am I required to stand up for them when they arrive at the shiur?”

In other words, is there a requirement for the rebbi to stand up for his talmid who qualifies as a seivah? This question is discussed by several acharonim. The work She’eiris Yaakov,by Rav Yisroel Yaakov Algazi, is quoted as ruling that the rebbi is required to stand up for his talmid, the seivah. However, the commentary Leiv Meivin, by Rav Bechor Yitzchak Navardo, a nineteenth-century, Turkish posek, proves that the rebbi is required to stand up for his talmid only when the seivah himself is a talmid chochom and only when the rebbi is not obviously a much greater scholar than the seivah (Hilchos Talmud Torah 6:9). In other words, the only time a rebbi is required to demonstrate honor to an older person who is his talmid is when they are both talmidei chochomim of approximately similar stature, such that the younger talmid chochom is not obviously a much greater scholar than the older one. Thus, whether our daf yomi maggid shiur is required to stand up for the golden-aged attendees of his shiur is a dispute between the She’eiris Yaakov and the Leiv Meivin.

An older woman

Is there a mitzvah to stand up for an older woman?

The Sefer Chassidim (#578) rules that there is. Presumably, he is referring to a woman who is halachically observant, even if she is not very knowledgeable about halacha. There are halachic authorities who may disagree with the ruling of the Sefer Chassidim (see Halachos Ketanos 1:154; Shu”t Beis Yehudah, Yoreh Deah #28; Birkei Yosef, Choshen Mishpat 17:5; Bris Olam #578).

Two elderlies

Is an elderly person required to rise for another elderly person?

The Tur suggests that two talmidei chachomim or two elderly people should show respect (hiddur) for one another, although they are not required to stand up fully. This approach is codified by the Shulchan Aruch (Yoreh Deah 244:8). Some authorities explain that this is only when the two are of approximately equal stature as talmidei chachomim. However, if one of the talmidei chachomim is a greater talmid chochom than the other, the “lesser” talmid chochom is required to stand up for his more learned colleague (Leiv Meivin).

How old?

For how old a person are you required to stand up?

In the context of this mitzvah, the halachic authorities mention what appear to be three different ages.

1. The Rambam (Hilchos Talmud Torah 6:9) says that the mitzvah applies to someone “pronouncedly old,” which does not appear to have an obvious, objective criterion.

2. Based on the words of the Mishnah in Pirkei Avos (end of Chapter 5), ben shiv’im le’seivah, the Tur and the Shulchan Aruch rule that these laws apply to a person of the age of 70.

3. The Arizal is quoted as being strict to observe this mitzvah for people who have reached the age of 60 (Birkei Yosef, Yoreh Deah 244:4).

However, the Tur explains that the Rambam’s term “pronouncedly old” means 70, and that he is not disputing the Rambam in this matter.

In addition, there are various interpretations why the Arizal applied this mitzvah to someone who achieved the age of 60. Most conclude that the Arizal agrees with the ruling of the Shulchan Aruch, but that he had a personal chumrah, which was not halachically required, to stand up for a person once the honoree turned 60. Therefore, most rule that even those who follow kabbalistic practices are required to rise only for someone who is 70 years old (Birkei Yosef, Yoreh Deah 244:1; Leiv Meivin).

The halachic conclusion follows the opinion of the Tur and the Shulchan Aruch, ruling that the requirement to stand up for an older person applies only when the older person is at least 70 years old. This halacha holds true today, notwithstanding that 70 is no longer considered advanced in age.

An older person may be mocheil on his honor, and someone who knows that a particular person really does not want people to stand up for him should follow the older person’s wishes. Disregarding his personal desire is not demonstrating respect.

No respect

There is no requirement to rise and show respect when you are in a place where demonstrating respect is inappropriate, such as a bathhouse or bathroom.

When do you stand?

The requirement to stand up for a talmid chochom or an older person applies only when he is within four amos, approximately seven feet, of where you are. There are exceptions to this rule. There is a requirement to stand up for the person who taught you most of the Torah that you know, called your rebbi muvhak. In this case, you are required to stand up once your see the rebbi walking by, even at a distance (Aruch Hashulchan, Yoreh Deah 244:13).

Why four amos?

If you stand up when the talmid chochom or the older person is within your four amos, it is apparent that the reason you stood up is to honor him.

Don’t lose work time

There is an interesting halachic ruling, that there is no requirement to rise and show respect when a person will lose work time as a result. Therefore, a self-employed person is not required to stand up, should he be working when an elderly person comes by, and a worker in the employ of someone else is not permitted to rise while he is working, since he is taking away from the time he owes his employer. In other words, an employee is not permitted to be machmir and stand up when it costs money to a third party. Although one can argue that, in today’s business environment which accepts reasonable coffee breaks and other occasional, brief interruptions, it is permitted for an employee to stand up to show respect for a talmid chochom, we learn a very important lesson how halacha views the responsibility of an employee to his employer. This discussion will be left for a different, future article.

Standing up while learning Torah

The halacha is that someone in the middle of studying Torah is required to stand up for a talmid chochom or for an elderly person (when the halacha requires, as explained above). This is because of a general rule that performing mitzvos of the Torah pushes aside studying Torah.

Transported

What is the halacha, if the elderly person is being carried or wheeled in a wheelchair? Is there still a responsibility to rise when he passes within four amos? The answer is that there is a responsibility to rise when the elderly person passes by, regardless as to whether he is walking or being transported (see Kiddushin 33b). Therefore, it is required to stand up when an older person passes you while he is being pushed in a wheelchair.

As I mentioned above, you are required to stand up for an elderly person, once he is within four amos of where you are. There is a dispute among authorities whether you may sit down as soon as the scholar, or elderly person, passes by, or whether you should wait to sit down until he has passed beyond your four amos (Birkei Yosef, Yoreh Deah 244:12; Aruch Hashulchan, Yoreh Deah 244:13).

At this point, we can address our opening question:

“Am I required to stand up anytime I see a senior citizen walking down the street?”

The answer is that if he is over seventy years old (or appears to be), observes halacha, and you are not busy earning a living, you are required to stand up for him, once he is within your four amos.

In shul or while davening?

Is there a mitzvah to stand up for a talmid chochom or an elderly person when you are in the middle of davening? There is an authority who contends that since you are in the middle of showing respect to Hashem, you should not, then, show respect for a human, who is, himself, required to show respect to Hashem (quoted by Birkei Yosef, Yoreh Deah 244:1). However, the other halachic authorities disagree, contending that fulfilling Hashem’s mitzvah is showing respect to Hashem, and, therefore, should be observed while you are davening (see Birkei Yosef ad locum and Shu”t Radbaz that he quotes).

Your whole house

The Birkei Yosef raises the following question: In general, halacha considers your entire house to be one area of four amos. This has many halachic ramifications. For example, upon awaking in the morning most people wash their hands somewhere in the house, without being careful that they walk less than four amos before doing so.

The question he raises is whether we consider the entire house to be four amos germane to standing up for an older person. If we do, that would mean that whenever you are indoors and you see an older person walking around or being transported in the same house, you are required to remain standing up for him until he reaches his destination, even if he never comes within your four amos!

The halachic authorities conclude that there is no difference between being inside or being outside – in either instance, you are not required to stand until the older person is within your four amos. This is because the point of four amos germane to this mitzvah is that a greater distance away is not apparent that you are standing to demonstrate honor. This is true whether you are indoors or outdoors, and, therefore, there is no requirement to stand up indoors for an older person until he is within your four amos (Birkei Yosef, Yoreh Deah 244:5).

Discordant scholar

The Aruch Hashulchan (Yoreh Deah 244:13) rules that there is no requirement to stand up to show respect for a Torah scholar who creates disputes that are not for the sake of Heaven. This ruling would also apply to an elderly person who creates disputes that are not lesheim shamayim. Even if he meets the age requirement and is observant, if he is a baal machlokess, there is no mitzvah to rise for him.

Can’t see

Does the mitzvah to stand up for a talmid chochom or an elderly person apply when the honoree will be unaware that you did so, such as, if he cannot see? The She’eilos Uteshuvos Halachos Ketanos (1:154) rules that you are not required to stand up for an older person who cannot see that you did so (quoted by Shearim Hametzuyanim Behalacha 144:5). However, many other authorities dispute this conclusion (Birkei Yosef, Yoreh Deah 244:2).

Conclusion

When the posuk (Bereishis 24:1) mentions that Avraham Avinu got older, it uses the expression, ba bayamim, “he came with his days,” the first time this expression occurs in Chumash, even though many people had lived much longer than Avraham. The Gemara explains that this was the first instance of a person looking like an old man. Most people are sensitive about looking older, but the Midrash writes that Avraham Avinu asked to look elderly, so that people would know to treat him with respect! As the Gemara expresses it, “Until the time of Avraham, there was no concept in the world of people looking old. Someone who wanted to talk to Avraham, would (by mistake) go to Yitzchok, since they looked so similar, and vice versa. Avraham then prayed to Hashem, and the concept of appearing elderly began for the first time in history” (Bava Metzia 87a). The Bereishis Rabbah adds, “Avraham requested to look old. He said to Hashem, ‘Creator of all worlds, a man and his son can arrive in a place, and no one knows which of them to honor. If you crown him with the appearance of being elderly, people know whom to honor!’ Hashem answered him. ‘You requested it; it will begin with you.’ From the beginning of the Torah, until Avraham, there is no mention of anyone getting old” (Bereishis Rabbah 65:9).

Avraham Avinu’s outlook should serve as a wise counterbalance to modern society’s adulation and adoration of youth. This approach makes aging something to dread, rather than something deserving of respect. Instead, Avraham Avinu referred to signs of advanced age as a well-earned “crown.”

My Vows I Shall Fulfill #2

Question #1: Can performing a mitzvah be a liability?

Question #2: What is hataras nedarim?

Question #3: How does Kol Nidrei work?

Question #4:

Yankel asked me the following question: “When I attended a Gemara shiur on Nedarim, I got the impression that performing hataras nedarim requires having a talmid chacham deliberate over the specific neder, until he concludes that there are grounds to release the neder. This seems to have no relationship to what we do on Erev Rosh Hashanah.”

Answer:

This week we will continue last week’s article on the topic of vows, oaths, and pledges. As we mentioned there, someone who recites a vow, an oath or a pledge is required to fulfill it (see Bamidbar 30:3). By virtue of the vow, oath or pledge, he now has a Torah obligation to observe something that he is otherwise not required to do. We also discovered that, for reasons discussed in last week’s article, one should be careful not to make vows or pledges. Here is a review of the six main ways to create an obligation upon oneself, either to fulfill something or to abstain from doing something:

(1) Nedarimvows

(2) Shevuosoaths

(3) Kabbalas mitzvah, declaring that one will perform a good deed

(4) Pledges to tzedakah, intending to donate charity

(5) Stringencies – performing a halachic chumra

(6) Doing something three times

The details of how these various activities become halachic responsibilities vary from category to category, and the outline of these rules was discussed in last week’s article. There we were taught that to avoid creating these commitments, someone expressing intent to perform a good deed should be careful to say that he/she is acting bli neder, without accepting it as an obligation. Similarly, someone who begins practicing a halachic hiddur should say, or at least think, that he is not accepting it as an obligation.

In addition, we presented last week how to release ourselves from vows and pledges via aprocess called hataras nedarim, which removes the continuing obligation to fulfill the vow. We noted that someone who violated his vow prior to performing hataras nedarim has sinned and is required to perform teshuvah for his or her infraction. In the case of a pledge to tzedakah¸ there is an additional requirement to pay it as soon as possible; otherwise, someone might violate the prohibition of bal te’acheir leshalmo – “Do not delay paying it” (Devarim 23:22).

If one contemplates making a vow or an oath, at what point has an oath been created? In most instances, thinking about making an oath or vow, or even deciding to do so without expressing it, does not create an oath. The vow or oath is created only by enunciating it.

If someone states the words of an oath or vow, but has no intention to accept an obligation upon himself, no oath or vow has been created. This is referred to by the Gemara as piv velibo shavim – his mouth and his heart are equal. In other words, his intent and his statement are both required in order to create an oath or vow. If he did not intend to create an oath or vow, the words alone do not create one because libo, his heart, meaning, his intention, was not to make an oath or vow.

What is the halacha if he wanted to make an oath or vow and began expressing it, but said something that is not a correct formula for either an oath or a vow? The halacha is that there are times when this is not a valid oath or vow, because what he said is insufficient to qualify, and there are other times when it is valid. Although the details are more complex than we will deal with in this article, we will discuss two instances in which the oath or vow is valid and must be kept.

  1. Yad nedarim – when the statement is incomplete. The word yad means a hand, but also can mean a handle. In this instance, it means that, although the vow was not fully expressed, enough of it was said to understand the person’s intent. He provided a “handle” with which the verbalization of the vow can be “held.” For example, if someone declared muderani mimcha, “I vow from you,” the person who states this is prohibited to talk to the other person until he has hataras nedarim performed (see Shulchan Aruch, Yoreh Deah 206:1).
  2. Nickname nedarim – when the neder is expressed in a colloquial fashion. The words themselves are not meaningful, but colloquially this is understood to be a neder. The halachic term used in the Mishnah for these nedarim is kinuyim, which means a nickname (Nedarim 2a). An example of this is someone declaring, “This loaf of bread is konam to me,” who is now prohibited to eat the loaf of bread.

The Gemara quotes a dispute between early amora’im why kinuyim are valid. According to one amora, this was an attempt by non-Jews to imitate Hebrew, but because of their native accents, the words ended up sounding very strange. Nevertheless, once these words became accepted to mean what was intended, they will now create an oath or vow. In other words, language in general is what people mean and is conventionally accepted. Every spoken language is constantly in flux, and, as people use the language, dialects and colloquialisms develop. These are all acceptable uses of the language. For our halachic purposes, these peculiar usages for expressions, such as “oath,” “vow” and the like, are considered part of the language – and, therefore, the oath or vow was stated. According to this approach, the word konam was originally a slang word of non-Jews meaning korban.

The other approach of the Gemara explains that the terms called kiyunim by the Mishnah were deliberate creations of Chazal. Chazal realized that since the posuk refers to a korban laShem, the most common way someone will refer to a vow not to use an item will be to say, “this item is a korban for G-d,” meaning that the item may not be used just as a korban may not be used. When doing so, the person may use Hashem’s name as we express it in Hebrew. Although halachically doing this it is not considered taking Hashem’s name in vain, it can easily lead to someone using Hashem’s name inappropriately and violating the Torah prohibition of lo sisa es sheim Hashem Elokecha lashav (Shemos 20:7). In order to avoid and discourage this, Chazal instituted a different nomenclature, specifically for the purpose of oaths and vows, whose purpose is to discourage people from using Hashem’s name without purpose.

According to both approaches that I have presented, the statement, “This loaf of bread is konam to me”means that he has made a vow that the loaf of bread is prohibited for him to eat, just as he is prohibited from eating a korban.

May I appoint an agent to perform hataras nedarim for me?

No, one must ask the beis din directly to release himself from vows (Shulchan Aruch, Yoreh Deah 228:16). If the members of the beis din do not understand the language that the nodeir speaks, they may use an interpreter to facilitate communication (Rema ad loc.).

There is one instance in which someone may make another person an agent to release nedarim. Sometimes, a husband may act as an agent for his wife to annul her nedarim. If a husband finds three people already gathered together – for example, they were performing hataras nedarim for him or for someone else – he may act as his wife’s agent to ask them to release her neder at the same time, if she appointed him to do so (Shulchan Aruch, Yoreh Deah 234:56). However, he may not gather three people together to become a beis din for the purpose of hataras nedarim.

How does a woman perform hataras nedarim?

A woman who has a specific oath, vow, or practice from which she wishes release should arrange to perform hataras nedarim with a talmid chacham or beis din. As mentioned above, if she is married, she may ask her husband to be her agent to perform hataras nedarim, according to the instructions I wrote above (Shulchan Aruch, Yoreh Deah 234:56).

Hataras nedarim on erev Rosh Hashanah

At this point, we can address Yankel’s question:

“When I attended a Gemara shiur on Nedarim, I got the impression that performing hataras nedarim requires having a talmid chacham deliberate over the specific neder, until he concludes that there are grounds to release the neder. This seems to have no relationship to what we do on Erev Rosh Hashanah.”

Indeed, Yankel’s question is valid: hataras nedarim requires mentioning specifically the vow that one desires to release, and the beis din must deliberate whether this particular neder can be revoked. Thus, it is unclear whether the generic hataras nedarim recited on Erev Rosh Hashanah, indeed, releases one from any commitments. The proper thing to do is to mention to an appropriate beis din every specific neder or practice for which one seeks annulment. What, then, is the purpose of hataras nedarim on Erev Rosh Hashanah.

Mesiras moda’ah

The Gemara mentions that a declaration at the beginning of the year that all vows one will make in the course of the year are invalid has some value. This declaration is called a mesiras moda’ah.The Gemara concludes that this statement has only limited value, and one should not intentionally rely upon it. In point of fact, the standard hataras nedarim procedure performed on Erev Rosh Hashanah includes a mesiras moda’ah.

Kol Nidrei

The rishonim dispute whether the purpose of Kol Nidrei that we recite at the beginning of our Yom Kippur service is also meant to be a form of hataras nedarim, performed at a time when virtually everyone is in shul to include the maximum number of people, or whether it is a mesiras modaah. It is for this reason that there are three different versions of the text: one that has Kol Nidrei refer to the past year’s declarations, which means that it is hataras nedarim; one that refers to the coming year’s declarations, which means that it is a mesiras modaah; and one that mentions both the past and the future years, which means that it is meant to accomplish both. From my experience, most congregations today follow the third approach.

There is another interesting difference in halachic practice that results from this last dispute: Should the congregation recite Kol Nidrei together with the chazzan? If it is a mesiras modaah, then one must declare it oneself, and each individual should read the Kol Nidrei together with the chazzan. On the other hand, if it is a form of hataras nedarim, then it should be declared by the chazzan, alone, accompanied by the two honored men alongside him who hold the sifrei Torah, so that they form a beis din that is annulling everyone’s nedarim. The Mishnah Berurah (619: 2) rules that we should consider it a mesiras modaah, and therefore concludes that each individual should recite Kol Nidrei softly along with the chazzan.

Conclusion

Now that we realize how serious our speech can be, we should reflect not only on the ideas of nedarim, but also on all the ramifications of our speech. As the pasuk (Mishlei 18:21) states, Ma’vess ve’chayim be’yad lashon – Life and death are controlled by our tongues!

My Vows I Shall Fulfill

Question #1: Quiz question

Can performing a mitzvah become a liability?

Question #2: Is this a “klutz question?”

What does it mean that I am doing something “bli neder”?

Question #3: A frum question

“My friend Billy Nader says bli neder on almost everything. Is this being too frum?

Answer:

What is a neder?

It is rather obvious why we are studying this topic this week – since Parshas Matos begins with the laws pertaining to vows.

Someone who recites a vow, an oath or a pledge is required to fulfill it (see Bamidbar 30:3). By virtue of the vow, oath or pledge, one creates a Torah obligation that he is otherwise not required to observe. For example, someone who declares that he will begin studying daf yomi every day is now obligated to do so, even on a day when it is inconvenient. Similarly, one who pledges tzedakah at yizkor or pledges a contribution to a shul upon receiving an aliyah becomes fully obligated, min haTorah, to pay the donation. In the case of a pledge to tzedakah¸ one must redeem it as soon as practical; otherwise, he risks violating an additional prohibition, bal te’acheir leshalmo, “Do not delay paying it” (see Devarim 23:22).

In general, one should be careful not to make vows or pledges. For one thing, one who does so has now created a stumbling block for himself, since he runs the risk that he will not observe his commitment (see Nedarim 20a, 22a). Furthermore, he has created an accusation against himself, for by committing to observe something that the Torah did not require, he implies that he is so skilled at observing mitzvos that he can add a few of his own. The satan can now level accusations against his occasional laxities in a much stronger fashion (see Nedarim 22a, based on Mishlei 20:25). (There are a few circumstances in which one is encouraged to make vows, but we will leave that topic for a different time.) For this reason, it is better not to pledge to contribute to tzedakah: if you have the money available, donate it; if it is not currently available, don’t pledge it! (Shulchan Aruch, Yoreh Deah 203:4). It is very important that gaba’im be in the habit of declaring that people’s pledges are bli neder, and a similar wording should appear on pledge cards.

Different types of obligations

There are six main ways to create an obligation upon oneself, either to fulfill something or to abstain from doing something.

(1) Nedarim – vows

A neder – a vow, in which one declares that something otherwise permitted is now prohibited – such as declaring that certain foods are prohibited.

Example:

In her desire to keep to her diet, Yaffah states: “I am going to prohibit all chocolate on myself.” Yaffah has now created a neder, which prohibits her, min haTorah, from eating chocolate.

(2) Shevuos – oaths

A shevuah – an oath, in which one swears to fulfill or refrain from some activity – such as swearing that one will fast on a certain day, or that one will say Tehillim every day.

Example:

To repair his somewhat sloppy record at making it to minyan every morning, Shachar makes a shevuah that he will be in shul for shacharis for the next three days. Should he fail to make it to shacharis any of those days, he would be breaking his shevuah, which contravenes a Torah prohibition.

Whether a specific declaration constitutes a neder or a shevuah depends on halachic technicalities, usually contingent on how one makes the declaration. Several halachic differences result from whether someone made a neder or a shevuah, including that violating a shevuah is a more serious infraction (Ran, Nedarim 20a). Later in this article I will mention another important difference between them.

(3) Kabbalas mitzvah, declaring that one will perform a good deed

Someone who declares: I will arise early and study this chapter or that mesechta has declared a great vow to the G-d of Israel (Nedarim 8a). Someone who expresses these plans, intending to perform an exemplary act, has now obligated himself, even though he did not use the terms “vow,” “oath,” or “pledge” (Shulchan Aruch, Yoreh Deah 213:2).

Example:

Asking others to say certain chapters of Tehillim can create a stumbling block. Specify that it is being done bli neder.

(4) Kabbalas tzedakah, intending to donate charity

In the specific instance of contributing tzedakah funds, even deciding to give tzedakah without verbalizing one’s intention creates an obligation to donate tzedakah (Rema, Yoreh Deah 259:13; see also Choshen Mishpat 212:8; based on Shevuos 26b).

(5) Performing a stringency

Someone who is aware that performing a certain hiddur in halacha is not obligatory, and begins to keep it with the intention of observing it regularly, becomes required to continue the practice as a form of vow. It becomes a binding obligation, requiring hataras nedarim, annulling vows – even if the individual fulfilled the practice only one time, and even if he did not declare that he intends to continue the practice (Nedarim 15a; Shulchan Aruch, Yoreh Deah 214:1).

Examples:

Someone who begins standing during kerias haTorah, intending to continue the practice, becomes obligated to do so, unless he specified that he is doing so bli neder. He should perform hataras nedarim at the first opportunity, so as to avoid violating the prohibition of abrogating observance of a vow. After performing hataras nedarim, he may continue the practice of standing during kerias haTorah, but should have in mind that he is doing it bli neder.

A woman began lighting a third Shabbos candle in her own home after her first child was born. This practice might now become an obligation. She then did so the first time she visited her parents’ house; most women who kindle more than two lights before Shabbos do so only in their own home, but kindle only two when they are guests in someone else’s home. She asked a shaylah whether she should have hataras nedarim on the practice of kindling a third light, and she was told to do so.

(6) Three times

Someone who performs a stringent practice three times without saying bli neder must continue to fulfill the hiddur, even if he had not planned to observe it always (Kitzur Shulchan Aruch 67:7).

Saying “bli neder

Should I not observe hiddurim? I want to do these mitzvos, but I certainly do not want to be punished if I fail to continue performing them! How do I avoid becoming obligated?

To avoid creating this commitment, someone expressing intent to perform a good deed should be careful to say that he/she is acting bli neder, without accepting it as an obligation (Kitzur Shulchan Aruch 67:4). Similarly, someone who begins practicing a halachic hiddur should say that he is not accepting it as an obligation.

Example:

Hadassah decides that she will eat only glatt kosher meat or will use only chalav Yisroel products, both meritorious activities. She should state that she is doing it “bli neder.”

Similarly, when pledging money during yizkor, while making a mishebeirach or making any other oral commitment to donate charity, one should be careful to say bli neder. When others are pledging to tzedakah and one feels pressured to participate, specify that the pledge is bli neder (Shulchan Aruch, Yoreh Deah 257:4). It is still proper to donate the money, but stating that it is prevents bli neder a mishap should one forget or later be unable to do so.

Saying “bli neder” even for a non-mitzvah

Some authorities recommend saying bli neder on all one’s activities, even those that do not fulfill a mitzvah, so that the habit helps prevent one from inadvertently creating nedarim (Kitzur Shulchan Aruch 67:4).

Example:

Chavah tells her husband, “I am going to exercise class this morning, bli neder.” Although the statement that she plans to exercise does not create any obligation on her part, habituating herself to say bli neder is a good practice to develop.

We can now answer one of the questions asked above. “I have a friend who says bli neder on almost everything. Is this being too frum?” The answer is that your friend is being astutely cautious and following the advice of halachic authorities.

Don’t delay paying

In addition to the abovementioned concerns involved in pledging tzedakah, the Gemara rules that the mitzvah of bal te’achar, not to delay the donation of a korban, applies also to tzedakah (Rosh Hashanah 6a). This means that someone who pledges money to a charitable cause is required to pay the pledge as soon as he can.

To quote the Rambam: Tzedakah is included in the laws of vows. Therefore, someone saying, “I am obligated to provide a sela coin to tzedakah,” or, “This sela shall go to tzedakah,” must give it to poor people immediately. If he subsequently delays redeeming the pledge, he violates bal te’acher, since he could have given it immediately, as there are poor people around. If there are no poor people, he should set aside the money until he finds a poor person. However, if, at the time of his pledge, he specified that he is not intending to redeem the pledge until he locates a poor person, he is not required to set aside the money (Hilchos Matanos Aniyim 8:1).

Someone who declares that he will give tzedakah to a certain poor person is not required to give the money until he sees that person (Rema, Yoreh Deah 257:3). However, someone who pledged to contribute to destitute people, without qualifying which poor people he meant, is required to fulfill his pledge immediately (Mordechai, Bava Basra 491).

What is hataras nedarim?

Now that we realize that creating obligations is rather extensive, we want to find out, quickly, how to release ourselves from these vows.

Chazal derive from the Torah that one can be absolved from a vow, pledge or other such commitment, by a process called hataras nedarim. Hataras nedarim does not, in the slightest way, diminish the reward that one receives for the good deeds performed. It simply removes the continuing obligation to fulfill the vow from the individual who created that vow. Therefore, in the vast majority of circumstances, someone who made a neder should undergo hataras nedarim, so that he releases the obligation from himself and therefore does not violate the neder (see Nedarim 22a).

How does one undergo hataras nedarim?

The person who made the vow or other commitment goes to three Jewish men who understand the logic of halacha and know the basics of how hataras nedarim operates (Shulchan Aruch, Yoreh Deah 228:1 and commentaries). These three form a type of ad hoc beis din for the purpose of releasing vows. One of the three should be a talmid chacham, proficient in the laws of hataras nedarim – and he should be knowledgeable concerning which vows one may not annul (Shulchan Aruch, Yoreh Deah 228:14; Kitzur Shulchan Aruch 67:8).

The nodeir, the person who made the vow, shares with the three (or, at least, with the talmid chacham who is proficient in the laws of nedarim) the content of the vow, oath, or good practice from which he desires release and why he seeks relief. The talmid chacham asks the nodeir several questions that must be answered truthfully. The talmid chacham thereby determines whether there are valid grounds to release the nodeir from the commitment (Shulchan Aruch, Yoreh Deah 228:14). Only a talmid chacham who understands the very complicated laws of vows should undertake hataras nedarim, because many details must be met for the hataras nedarim to be valid. (The details of what constitutes an adequate basis for hataras nedarim are beyond the scope of this article.)

Once the talmid chacham feels that there are adequate grounds for hataras nedarim, the beis din declares the neder or other commitment annulled by declaring, “mutar lach, mutar lach, mutar lach” – the activities prohibited by the vow are now permitted. Of course, in the case of a vow to do something, the words mutar lach mean the reverse – the person is no longer obligated to carry out the vow.

Someone who violated his vow prior to performing hataras nedarim has sinned, and is required to perform teshuvah for his or her infraction.

The difference between a neder and a shevuah

There is a halachic difference between performing hataras nedarim to release someone from the obligation he created with a neder, and performing hatarah after someone recited a shevuah. Whereas, in most instances, one should arrange to release someone from a neder, one annuls a shevuah only under extenuating circumstances (Rema, Yoreh Deah 203:3; Rambam end of Hilchos Shavuos). Explaining why this is so will need to wait for a future article.

When has a vow or an oath been created? We’ll discuss that in part 2 of this article.

The Holey Donut

Question #1: Holey Blessings

“What brocha should I recite before eating a donut? Does it make a difference whether it is an American-style, hole-in-the-middle donut or an Israeli-style jelly donut?”

Question #1: Chanukah Donuts

“Must I separate challah from the donuts I am frying for Chanukah?”

Question #3: Non-Jewish Consumers

“I just purchased a donut shop that is quite distant from any Jewish community. Must I make sure that challah is taken?”

Introduction:

Although neither Israeli donuts nor Israeli latkes are usually made with holes in the middle, Americans envision donuts as a big zero, no doubt to remind them of the number of calories contained in the hole.

Donuts are made from dough that is deep fried, or cooked in oil (these are two ways of saying the same thing). Because they are cooked, most authorities rule that the correct brocha before consuming them is mezonos. However, our opening questions require that we study the topic in greater depth. Doing so, we will discover that although reciting mezonos before consuming donuts is the accepted approach, it is not a universally held position, and that there are many halachic ramifications to this dispute.

Analyzing this topic requires that we explain several major issues in the laws of separating challah, so that is where our discussion begins. We should note that throughout this entire article, the word challah will be used to refer to the portion removed from dough to fulfill the mitzvah of the Torah, and not to the special Shabbos bread.

The Torah and challah

The Torah describes the mitzvah of challah in the following passage:

When you enter the land to which I am bringing you, it will be that, when you eat from the bread of the land, you shall separate a terumah offering for G-d. The first dough of your kneading troughs shall be separated as challah, like the terumah of your grain shall you separate it (Bamidbar 15:18-20).

Let us make several observations about this posuk, and then proceed to discuss them.

Bread or dough?

1. There appears to be an inconsistency in the words of the Torah. First, it refers to when you eat from the bread of the land, which implies that the requirement to separate challah begins only once it becomes bread. Yet, in the very next posuk, the Torah requires challah to be taken from your kneading troughs, implying that you separate challah when it is still dough. Which is true?

Terumah or challah?

2. The Torah refers to the part separated as a “terumah offering,” and then compares it to the terumah of your grain. In what way is challah like terumah?

Consumer or manufacturer?

3. The words of the Torah, when you eat from the bread of the land, you shall separate a terumah offering, imply that the obligation to take challah falls upon the consumer who will be eating the bread. However, the next verse states, the first dough ofyour kneading troughs shall be separated as challah, implying that the obligation falls upon the manufacturer. Why do two verses imply different laws?

Bread or dough

The answer is that the words of the Torah, the first dough of your kneading troughs, teaches that there is no requirement to separate challah unless there is as much dough as the amount of manna eaten daily by each member of the Jewish people in the desert, which, in their generation, was called “your kneading trough.” Chazal explain that this amount, called ke’shiur i’sas midbar, was equal to the volume of 43.2 eggs. In contemporary measure, we usually assume that this is approximately three to five pounds of flour. (For our purposes, it will suffice to use these round figures. I encourage each reader to ask his own rav or posek for exact quantities.) When there is a definite requirement to separate challah, one recites a brocha prior to fulfilling the mitzvah.

There is another reason why the Torah refers to the mitzvah both in regard to dough and to the finished bread. Usually, one should separate challah when the dough is mixed. However, there are situations in which one cannot separate challah as dough. In these instances, the Torah is teaching that we can also separate challah when it is already bread.

Terumah or challah

I noted above thattheTorah refers to the separated dough as a “terumah offering,” and then compares it to the terumah of your grain. In what way is challah like terumah?

Terumah may be eaten only by a kohen, his wife, sons and unmarried daughters, and only when they are tahor. Since we are without the parah adumah today, we cannot achieve being fully tahor, and, therefore, we cannot eat terumah. The Torah here teaches that challah has the same laws as terumah, and therefore can be eaten only by members of the kohen’s family who are tahor.

Dough versus batter

We find much discussion in the Mishnah regarding what type of product is included in the obligation to separate challah and a fundamental dispute among the early baalei Tosafos concerning these laws. Note that in the following discussion we differentiate between “dough,” a thick mixture which Chazal call belilah avah, and “batter,” a thin mixture which Chazal call belilah rakah. According to Rabbeinu Tam, any dough owned by a Jew is obligated in challah, even if one subsequently cooks or fries it (cited by many rishonim, including Tosafos, Brochos 37b s.v. Lechem and Pesachim 37b s.v. Dekulei alma).

(Please note that some authorities who accept Rabbeinu Tam’s basic approach that any dough is obligated in challah still exempt dough manufactured for pasta, because of considerations beyond the scope of our topic (see Tosafos, Brochos 37b, s.v. Lechem,quoting Rabbeinu Yechiel), but others hold that, according to Rabbeinu Tam, any product made from dough is obligated in challah, provided the batch was large enough (as described above).

Intent

A different baal Tosafos, the Rash, disagrees with Rabbeinu Tam, contending that one is not always obligated to separate challah from dough. There is such a requirement only when the owner intended to make the dough into bread. However, if the owner intended at the time that he kneaded the dough to cook or fry it, as one does when making donuts or kreplach, there is no obligation to separate challah.

Batter up

Both Rabbeinu Tam and the Rash agree that there is no obligation to take challah from a batter (belilah rakah) unless it was subsequently baked into a bread-like food. In this instance, therefore, the obligation to separate challah does not take place until the bread is produced. Thus, according to both Rabbeinu Tam and the Rash, we can resolve why the Torah describes the mitzvah of challah sometimes in terms of bread and sometimes in terms of dough. In most instances, the obligation to separate challah is when the flour mixture becomes dough. However, there are instances, such as when preparing a batter, in which there is no obligation to separate challah until it becomes bread.

Mezonos or hamotzi?

Many authorities explain that the dispute between Rabbeinu Tam and the Rash also affects which brocha one recites on a cooked or fried dough. They contend that, according to Rabbeinu Tam, since dough is obligated in challah, the brocha recited before eating dough that was then cooked or fried is hamotzi, the brocha recited afterwards is the full bensching,and that, prior to eating a cooked or fried dough product, there is a requirement to wash netilas yadayim.

Others rule that one does not recite hamotzi unless another requirement is met – that the finished product, after the frying or cooking, has a bread-like appearance, called in Aramaic turisa denahama (Tosafos, Pesachim and Brochos 37b s.v. Lechem). The halachic basis for drawing a distinction between the mitzvah of challah and the brocha requirements is that the requirement to separate challah is established at the time the dough is mixed, whereas the halachic determination of which brocha to recite is determined by the finished product (Rabbeinu Yonah, Brochos; Shulchan Aruch, Orach Chayim 168:13).

Baking part

At this point, we will return to the laws of challah, in order to understand some of the rulings germane to the laws of brochos. A passage in the Talmud Yerushalmi teaches that someone who prepared a dough or batter with the intention of cooking or frying most of it, and leaving a small amount of the dough for baking, is obligated to separate challah from the entire dough, because of a rabbinic injunction.

The passage reads as follows:

A woman asked Rabbi Mana: ‘I want to make my dough into noodles. Is there a way for me to do so and be exempt from separating challah?’ He told her that it was possible. He then asked his father, Rabbi Yonah, who told him that she should not be exempt from separating challah, out of concern that she will use the rest as one usually processes dough (that is, into bread) (Yerushalmi, Challah 1:4). The rishonim explain that she intended to bake a small part of the dough, and therefore assumed that she is not obligated to separate challah. However, should she subsequently decide that she wanted to bake the entire dough, it would be obligated in challah min haTorah, and she might not realize that she is obligated to separate challah. In order to avoid creating this problem, Chazal required her to separate challah even when she intends to bake only a small amount (Rosh, Pesachim 2:16; Hilchos Challah #2).

Rabbeinu Tam and Rash

At this point, we must note that Rabbeinu Tam and the Rash will dispute exactly what happened in this case. According to Rabbeinu Tam, any time one mixes dough, he is obligated to separate challah. Therefore, the case described by this passage of Yerushalmi must have been where the woman was mixing a batter from which one is usually not obligated to separate challah, intending to bake a small amount, and to cook or fry the rest. Rabbi Yonah ruled that since she might decide to bake the entire batter, she is already obligated, miderabbanan, to separate challah.

According to the Rash, the passage of Yerushalmi can be discussing dough, since the intention at the time of mixing to cook or fry dough exempts it from the mitzvah of separating challah.

The Maharam Rottenberg

Approximately a century after the time of the Rash, the greatest halachic authority in Germany was the Maharam Rottenberg. The Maharam did not want to take sides in this dispute between his two great predecessors, and so he devised the following approach, which he implemented in his own household:

When preparing dough that one intends to cook or fry, the Maharam instructed that one bake a small amount of the dough. According to the Rash, although cooked or fried dough is exempt from challah, when baking some of the dough, one becomes obligated in separating challah because of the takanah established by the Yerushalmi. Therefore, this dough is obligated in challah, whether one holds like Rabbeinu Tam (because it is dough) or like the Rash (because one is baking part of it).

According to Rabbeinu Tam, one should recite a brocha prior to separating challah on dough that one intends to cook or fry, whereas according to the Rash, there is no obligation to separate challah, and this would be a brocha levatalah. To avoid taking sides in this dispute, the Maharam advised baking some of the dough, thus creating a responsibility to separate challah because of the takanas chachamim.

Which brocha when you eat?

The Tur notes that the Maharam’s suggestion of baking some dough resolves only the question of separating challah. However, there is a separate, unresolved question – which brocha does one recite prior to eating a cooked or fried dough product? Rabbeinu Tam contends that the brocha on this product is hamotzi, which also means that one must wash netilas yadayim before eating it and recite bensching afterwards. The Rash maintains that the brocha before eating this food is mezonos, and the brocha afterwards is al hamichyah, and there is no requirement to wash netilas yadayim. How does one avoid taking sides in this dispute? The Maharam’s solution is to eat these products only after one first recited hamotzi on regular bread.

Thus, one of our opening questions “What brocha should I recite before eating a donut?” was considered an unresolved conundrum by the posek of his generation, the Maharam. Since he considered it to be an unresolved halachic issue whether one should recite hamotzi or mezonos prior to eating donuts, he ate them only after first reciting hamotzi on bread. I suspect that low carbohydrate diets were not much in vogue in his day.

How do we rule?

Most authorities conclude that the correct brocha prior to eating a dough product that is cooked or fried is mezonos. The Shulchan Aruch (Orach Chayim 168:13) and the Rema (ibid.) both follow the majority opinion that the correct brocha prior to eating a dough product that is cooked or fried is mezonos. However, the Shulchan Aruch also cites the minority opinion that one should recite hamotzi prior to eating a cooked dough product. He concludes that, to avoid any question, someone who is a yarei shamayim should eat a cooked dough product only after making hamotzi  on a different item that is definitely bread — what we presented above as the Maharam’s solution. The Shulchan Aruch refers to this as the way a G-d-fearing person should approach the matter. The Rema rules that accepted practice is to simply recite mezonos. Perhaps we could say that the Rema felt that a yarei shamayim can still be concerned about how many carbohydrates he eats!

How do we rule concerning challah?

According to the text accepted by most authorities, the Shulchan Aruch (Yoreh Deah 329:3) concludes that dough that one intends to cook or fry is exempt from the requirement to separate challah, ruling against Rabbeinu Tam. However, the Shach contends that one should separate challah without a brocha. Thus, in his opinion, someone preparing a large quantity of donuts or kreplach is obligated to separate challah, albeit without a brocha. A caterer, restaurant or hotel cooking a large quantity of kreplach for a communal Purim seudah should have challah separated from the dough.

Many later authorities rule that one should take into consideration Rabbeinu Tam’s approach and separate challah from any dough more than three pounds, even when it will be cooked or fried. However, the Shulchan Aruch Harav (Kuntrus Acharon, Orach Chayim 168:7) and the Aruch Hashulchan (Yoreh Deah 329:15) rule that one does not need to be concerned about Rabbeinu Tam’s position if one is making the dough in chutz la’aretz, since the requirement of separating challah there is certainly only miderabbanan.

Non-Jewish consumers

At this point, we can address the third of our opening questions: “I just purchased a donut shop that is quite distant from any Jewish community. Must I make sure that challah is taken?”

Let me explain the background to this shaylah. A frum businessman purchased a franchised donut shop located nowhere near any Jewishcommunity. His managers and employees are all non-Jewish. To avoid issues of being open on Shabbos and Pesach, the businessman used a type of mechir Shabbos, thereby sharing ownership of his business with a gentile, a highly controversial practice that is beyond the scope of this article. He had assumed that he had no responsibility to separate challah, either because he did not know that some authorities require this, or because he assumed that, since no customers are assuming that his products are kosher, he is not obligated to separate challah. This last assumption is incorrect.

Consumer or owner

The obligation to separate challah is a positive requirement incumbent upon the owner, not simply a means of preventing a Jew from eating the finished product without challah having been separated. The requirement to separate challah depends on the ownership of the dough at the time it is mixed, not on who mixes it. In other words, if a Jew owns a bakery, he is required to separate challah, even if his workers are not Jewish. Should the owner not have separated challah, the consumer is obligated to do so before he may eat the finished product.

If a gentile does the kneading in a Jewish-owned household, nursing home or school, there is an obligation to separate challah.  On the other hand, there is no requirement to separate challah in a bakery owned by non-Jews, even if the employees are Jewish.

Conclusion

Having discussed the halachic details of this mitzvah, it is worthwhile taking a glimpse at the following Medrash that underscores its vast spiritual significance: “In the merit of the following three mitzvos the world was created – in the merit of challah, in the merit of maasros, and in the merit of bikkurim” (Bereishis Rabbah 1:4). Thus, besides gaining us eternal reward, this easily kept mitzvah helps keep our planet turning.

Birkas Kohanim

Question #1: Why is this bracha different?

“Why is the bracha for duchening so different from all the other brochos we recite before we perform mitzvos?”

Question #2: Hoarse kohein

“If a kohein is suffering from laryngitis, how does he fulfill the mitzvah of Birkas Kohanim?”

Question #3: The chazzan duchening

“If the chazzan is a kohein, may he duchen?”

Answer:

I have written other articles about the mitzvah of duchening; this article will deal with a few specific issues not mentioned in the other articles.

First of all, I should explain the various names of this beautiful mitzvah. Ashkenazim usually colloquially refer to the mitzvah as duchening. The word “duchen” means a platform, and refers to the raised area in front of the aron kodesh on which the kohanim traditionally stand when they recite these blessings. However, in many shullen today, there is no platform in front of the aron kodesh, and, even when there is, in many shullen there are more kohanim than there is room for them on the duchen. In all these instances, the mitzvah is performed with the kohanim standing on the floor alongside the wall of the shul that has the aron kodesh, facing the people.

There are at least two other ways of referring to this mitzvah. One way of referring to the mitzvah is “Birkas Kohanim,”which is very descriptive of the mitzvah. I will use this term throughout this article, because it avoids confusion.

Nesi’as kapayim

The Mishnah and the Shulchan Aruch call this mitzvah by yet a third term, nesi’as kapayim, which means literally “raising the palms,” a description of the position in which the kohanim hold their hands while reciting these blessings. According to accepted halacha, the kohanim raise their hands to shoulder level, and each kohein holds his hands together. (There are some mekubalim who raise their hands directly overhead while reciting the Birkas Kohanim [Divrei Shalom 128:2]. However, this is a very uncommon practice.) Based on a midrash, the Tur rules that, while he recites the Birkas Kohanim, the kohein should hold his hands in a way that there are five spaces between his fingers. This is done by pressing, on each hand, the index finger to the middle finger and the small finger to the ring finger. This creates two openings — one between the middle finger and the ring finger on each hand. Another two are created between the index finger and thumb on each hand. The fifth opening is between the thumbs. There are various ways for a kohein to position his fingers such that he has a space between his thumbs. I know of several different methods, and I have never found an authoritative source that states that one way is preferable over any other. Most kohanim, myself included, follow the way that they were taught by their father.

An unusual bracha:

Immediately prior to beginning Birkas Kohanimbracha, the kohanim recite a birkas hamitzvah, as we do prior to performing most mitzvos. The text of the bracha is: Boruch Attah Hashem Elokeinu Melech ha’olam asher kideshanu bikedushaso shel Aharon, ve’tzivanu levareich es amo Yisroel be’ahavah. “Blessed are You, Hashem, our G-d, King of the universe, Who sanctified us with the sanctity of Aharon, and commanded us to bless His people, Yisroel, with love.”

Two aspects of this bracha are different from the standard structure of brochos that we recite prior to fulfilling mitzvos. The first change is that, instead of the usual text that we say, asher kideshanu bemitzvosav ve’tzivanu, “Who sanctified us with His mitzvos and commanded us,” the kohanim leave out the reference to “His mitzvos” and instead say “Who sanctified us with the sanctity of Aharon.” The second change is that the kohanim not only describe the mitzvah that they are performing — that Hashem “commanded us to bless his people Yisroel” –but they add a qualitative description, “with love.”

The fact that the kohanim make reference to Aharon’s sanctity is, itself, not unusual. It is simply atypical for us to recite or hear this bracha since, unfortunately in our contemporary world, we have no other mitzvos for which we use this text. However, when we are again all tehorim and when we have a Beis Hamikdash, every time a kohein performs a mitzvah that only a kohein can perform, such as eating terumah, korbanos or challah, donning the bigdei kehunah in the Beis Hamikdash (Artzos Hachayim, Eretz Yehudah 18:1, page 81b), or performing the mitzvos of offering korbanos, he recites a bracha that includes this reference. Unfortunately, since we are all tamei and we have no Beis Hamikdash, a kohein cannot perform these mitzvos today, and therefore we do not recite this bracha text at any other time.

“With love”

The other detail in this bracha that is highly unusual is the statement that the mitzvah is performed be’ahavah,“with love.” No other mitzvah includes this detail in its bracha, and, in general, the brochos recited performing mitzvos do not include details about how the mitzvos are performed. For example, the bracha prior to kindling the Shabbos or Chanukah lights says simply lehadlik neir shel Shabbos or lehadlik neir shel Chanukah,and does not add that we do so “with wicks and oil.” Similarly, note that the bracha recited before we pick up and shake the lulav and esrog does not even mention the esrog, aravos and hadasim, and says, simply, al netilas lulav. Again, the bracha for washing our hands is simply al netilas yadayim without mentioning any of the important details of the mitzvah. Yet, the bracha recited prior to Birkas Kohanim includes the word be’ahavah, with love. Why is this so?

Let us examine the original passage of the Gemara (Sotah 39a) that teaches us about the text of this bracha: “The disciples of Rabbi Elazar ben Shamua (who was a kohein) asked him, ‘Because of what practices of yours did you merit longevity?’ He answered them, ‘I never used a shul as a shortcut, I never stepped over the heads of the holy nation (Rashi explains that this means that when people were sitting on the floor in the Beis Hamedrash, as was common in his day, he never walked over them, but either arrived before everyone else did, or else he sat outside) and I never recited the nesi’as kapayim without first reciting a bracha.’”

The Gemara then asks, “What bracha is recited prior to Birkas Kohanim? Answered Rabbi Zeira, quoting Rav Chisda, asher kideshanu bikedushaso shel Aharon, ve’tzivanu levareich es amo Yisroel be’ahavah.

Thus, we see that the text that we recite prior to Birkas Kohanim is exactly the way the Gemara records it, and that the word “be’ahavah” is part of the original text. Why is this required?

The Be’er Sheva, a European gadol of the late 16th-early 17th century, asks this question. To quote him (in his commentary, Sotah 39a): “Where is it mentioned or even hinted in the Torah that the kohein must fulfill this mitzvah ‘with love’? The answer is that when the Torah commanded the kohanim concerning this mitzvah, it says Emor lahem, ‘Recite this blessing to the Jewish people,’ spelling the word emor with a vov, the full spelling of the word, when it is usually spelled without a vov. Both the Midrash Tanchuma and the Midrash Rabbah explain that there is an important reason why this word is spelled ‘full.’ ‘The Holy One, blessed is He, said to the kohanim that they should bless the Jewish people not because they are ordered to do so, and they want to complete the minimum requirement of that “order,” as if it were “forced labor” and therefore they say it swiftly. On the contrary, they should bless the Jews with much focus and the desire that the brochos all be effective – with full love and full heart.’”

We see from this Gemara that this aspect of the mitzvah, that the kohanim bless the people because they want to and not because they are required to, was so important to Chazal that they included an allusion to this in the text of the bracha, something that is never done elsewhere!

Brochos cause longevity

There are several puzzling questions germane to this small passage of Gemara that we quoted above. What was unique about Rabbi Elazar’s three practices that he singled them out as being the spiritual causes of his longevity? The commentaries explain that each of these three acts were personal chumros that Rabbi Elazar, himself one of the last talmidim of Rabbi Akiva and a rebbe of Rabbi Yehudah Hanasi, practiced (Keren Orah, Meromei Sadeh et al). Since our topic is Birkas Kohanim, we will address only that practice: What was unique about Rabbi Elazar’s practice of reciting a bracha before performing the mitzvah of Birkas Kohanim? Didn’t every kohein do the same? And, if so, why did the other kohanim not achieve the longevity that he did?

The Keren Orah commentary notes that the Gemara quotes the amora, Rav Zeira, as the source for the bracha on Birkas Kohanim, implying that the bracha on Birkas Kohanim was not standardized until his time, and he lived well over a hundred years after Rabbi Elazar’s passing. This implies that a bracha on this mitzvah was not necessarily recited during the era of the tanna’im and early amora’im. The Keren Orah suggests the reason for this was because Birkas Kohanim itself is a blessing, and we do not recite a bracha prior to reciting birkas hamazon or birkas haTorah, even though they themselves are mitzvos. Notwithstanding this consideration, Rabbi Elazar was so enthusiastic about blessing the people that he insisted on reciting a bracha before performing Birkas Kohanim. This strong desire to bless people was rewarded by his having many extra years to continue blessing them (Maharal).

Notwithstanding that the mitzvah is such a beautiful one, technically, the kohein is required to recite the Birkas Kohanim only when he is asked to do so, during the repetition of the shemoneh esrei. We will see shortly what this means practically.

Hoarse kohein

At this point, let us examine the second of our opening questions: “If a kohein is suffering from laryngitis, how does he fulfill the mitzvah of Birkas Kohanim?”

Let us examine this question thoroughly, starting from its sources in the Gemara: “One beraisa teaches: Koh sevarchu (‘this is how you should bless’): face to face… therefore the posuk says Emor lahem (say to them), as a person talks to his friend. Another beraisa teaches: Koh sevarchu, in a loud voice. Perhaps it means that the bracha should be said quietly, therefore the posuk says Emor lahem, as a person talks to his friend” (Sotah 38a).

This derives from the words of the posuk Koh sevarchu and Emor lahem two different laws. The first is that the audience receiving the kohanim’s bracha should be facing them during the Birkas Kohanim. (In error, some people turn around while the kohanim recite Birkas Kohanim, in order to make sure that they do not look at the kohanim’s hands. It is correct that they should not look at the hands of the kohanim who are duchening, but they can look down to avoid this problem, and, anyway, most kohanim cover their hands with their talis while duchening.)

The second law derived from these pesukim is that the kohein should recite the Birkas Kohanim loudly enough so that the people can hear him. Although there are kohanim who shout the words of the Birkas Kohanim, the continuation of the Gemara clearly explains that be’kol ram, in a loud voice, means simply loud enough for the people to hear the kohein. However, someone whose voice is so hoarse that people cannot hear him is not permitted to recite Birkas Kohanim and should leave the sanctuary part of the shul before the chazzan recites the word retzei in his repetition of shemoneh esrei (Mishnah Berurah 128:53).

Why retzei?

Why should the kohein leave the shul before retzei?

Some mitzvos aseh, such as donning tefillin daily, making kiddush, or hearing shofar, are inherent requirements. There isn’t any way to avoid being obligated to fulfill these mitzvos. On the other hand, there are mitzvos whose requirement is dependent on circumstances. For example, someone who does not live in a house is not obligated to fulfill the mitzvah of mezuzah. Living in a house, which most of us do, creates the obligation to install a mezuzah on its door posts. Someone who lives in a house and fails to place a mezuzah on the required doorposts violates a mitzvas aseh.

Similarly, the mitzvah of Birkas Kohanim is not an inherent requirement for the kohein. However, when someone asks the kohein or implies to him that he should perform the Birkas Kohanim, the kohein is now required to do so, and, should he fail to, he will violate a mitzvas aseh.

The Shulchan Aruch (Orach Chayim 128:2) rules that a kohein who remains in shul is required to recite Birkas Kohanim if (1) he hears the chazzan say the word kohanim, (2) someone tells him to ascend the duchen or (3) someone tells him to wash his hands (in preparation for the Birkas Kohanim). Any of these three actions summon the kohanim to perform the mitzvah, and that is why they create a requirement on the kohein. A kohein for whom it is difficult to raise his arms to recite the Birkas Kohanim should exit the shul before the chazzan says the word kohanim (see Shulchan Aruch Orach Chayim 128:4 and Mishnah Berurah). The Magen Avraham and the Elyah Rabbah conclude that it is preferred if he exits before the chazzan begins the word retzei. The Shulchan Aruch mentions that the custom is for any kohein who is not reciting Birkas Kohanim to remain outside until the Birkas Kohanim is completed.

Washing hands

The Shulchan Aruch we just quoted rules that telling a kohein to wash his hands creates the same obligation to recite Birkas Kohanim as directly summoning him to recite the Birkas Kohanim. Why is that so?

This is because the Gemara rules that “any kohein who did not wash his hands should not perform nesi’as kapayim.” The Rambam (Hilchos Tefillah Uvirkas Kohanim 15:5) rules that the washing before Birkas Kohanim is similar to what the kohanim do prior to performing the service in the Beis Hamikdash. For this reason, he rules that their hands should be washed until their wrists. We rule that this is done even on Yom Kippur, notwithstanding that, otherwise, we are not permitted to wash the entire hand on Yom Kippur (Shulchan Aruch, Orach Chayim 128:6). Several acharonim rule that, since Birkas Kohanim is a form of avodah, washing before performing this mitzvah includes other requirements, such as washing with a cup, with clear water, and with at least a revi’is (about three ounces) of water (see Magen Avraham, Yeshuos Yaakov, Shulchan Shelomoh and Mishnah Berurah).

In many shullen, a sink is installed near the duchen, so that the kohanim can wash immediately before Birkas Kohanim. Others have a practice that water and a basin are brought to the front of the shul for this purpose. These customs have a source in rishonim and poskim and should definitely be encouraged. Tosafos (Sotah 39a s.v. Kol) concludes that the kohein should wash his hands immediately before ascending the duchen. He rules that the kohein should wash his hands within twenty-two amos, a distance of less than forty feet, of the duchen. The Magen Avrohom (128:9) rules according to this Tosafos, and adds that, according to Tosafos, since the kohanim wash their hands before retzei, the chazzan should recite the bracha of retzei rapidly. In his opinion, the time that transpires after the kohein washes his hands should be less time than it takes to walk twenty-two amos, and, therefore, retzei should be recited as quickly as possible. The Biur Halacha (128:6 s.v. Chozrim) adds that the kohanim should not converse between washing their hands and reciting Birkas Kohanim, because this also constitutes a hefsek.

The chazzan duchening

At this point, let us examine the third of our opening questions: “If the chazzan is a kohein, may he duchen?”

This question is the subject of a dispute between the Shulchan Aruch and the Pri Chodosh. According to the Shulchan Aruch, if the chazzan is a kohein, he should not recite Birkas Kohanim, unless he is the only kohein. The reason he should not recite Birkas Kohanim is out of concern that he might get confused and not remember the continuation of the davening. The Pri Chodosh disagrees, concluding that this was a concern only when the chazzan led the services from memory, which, although very common in earlier era, is today quite uncommon. If the koheinchazzan is using a siddur, such that Birkas Kohanim will not confuse him from continuing the davening correctly, he can recite Birkas Kohanim

In chutz la’aretz, the accepted practice in this halacha follows the Shulchan Aruch, whereas in Eretz Yisroel, customs vary in different locales. In Yerushalayim and most other places, the accepted practice follows the Pri Chodosh, and the chazzan performs Birkas Kohanim.

When the chazzan does recite Birkas Kohanim, he turns around to face the people, recites Birkas Kohanim, and then turns back to complete the repetition of the shemoneh esrei. He is even permitted to walk to the front of the shul from his place in order to recite Birkas Kohanim should he be leading the services from the middle of the shul rather than the front.

Conclusion

As a kohein myself, I find duchening to be one of the most beautiful mitzvos. We are indeed so fortunate to have a commandment to bless our fellow Jews, the children of Our Creator. All the more so, the nusach of the bracha is to bless His nation Israel with love. The blessings of a kohein must flow from a heart full of love for the Jews that he is privileged to bless.

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