The Whys and Wherefores of Zachor

Question #1: Homebound

“As a mother of several small children, it is not easy for me to go out on Shabbos to hear Parshas Zachor. Am I required to do so?”

Question #2: Outreaching in the Afternoon

“At the outreach program that I run, many of our students do not arrive on Shabbos until the afternoon. Should we have a second Parshas Zachor reading for them?”

Question #3: Reading without a Brochah

“Why is no birkas haTorah recited on Parshas Zachor at a women’s reading?”

Answer:

Introduction:

This Shabbos we read the special maftir that begins with the words Zachor es asher asah lecha Amalek baderech be’tzeis’chem miMitzrayim, “Remember what Amalek did to you on the road as you were leaving Egypt.” According to the Rambam and many others, this short maftir reading actually includes three different commandments:

(1) A positive mitzvah, mitzvas aseh, to remember the evil that Amalek did (Sefer Hamitzvos, Positive Mitzvah #189).

(2) A lo saaseh commandment not to forget what happened (Sefer Hamitzvos, Negative Mitzvah #59).

(3) The mitzvah to blot out the people of Amalek, mechiyas Amalek (Rambam, Hilchos Melachim 5:5, and Sefer Hamitzvos, Positive Mitzvah #188; Semag).

The Torah’s repetitive emphasis, remember and do not forget, teaches that the commandment “remember” means to express, to state it as a declaration. This is similar to the mitzvah of Kiddush, Zachor es yom haShabbos lekadsho, which is a requirement to state the sanctity of Shabbos and not simply to remember Shabbos (Sifra, beginning of Parshas Bechukosai). In addition, many authorities derive from the doubled command that the Torah requires us to review this declaration annually, since after a year one might forget it (see Sefer Hachinuch, Mitzvah 603). The Sefer Hachinuch explains that since the mitzvah is to make sure that one does not forget, the Torah requirement is to restate this reminder every one to three years. The requirement of the mitzvah is fulfilled both in one’s heart and on one’s lips (Sefer Hachinuch).

(We should note that some authorities [Behag, Rav Saadya] count all three of the mitzvos mentioned above as one mitzvah in the count of the 613. Presumably, they consider these additional statements of the Torah as encouraging us to remember to fulfill the mitzvah of destroying Amalek.)

The Gemara (Megillah 18a) states that the positive mitzvah of remembering what Amalek did requires reading from a sefer Torah. For this reason, many authorities conclude that the annual public reading of Parshas Zachor from a Sefer Torah is required min haTorah (see Tosafos, Megillah 17b s.v. kol and Ritva ad loc.; Tosafos, Brachos 13a; Rosh, Brachos 7:20). Some conclude that the requirement to hear Parshas Zachor is even greater than that of hearing Megillas Esther, since the mitzvah of reading Megillah is miderabbanan, whereas Parshas Zachor is required by the Torah (Terumas Hadeshen #108). For this reason, the Terumas Hadeshen concludes that those who live in places that have no minyan are required to go to where there is a minyan for Shabbos Zachor to hear this reading, a ruling codified in the Shulchan Aruch (Orach Chayim 685:7).

Those who disagree

Notwithstanding the long list of recognized early authorities who rule that an annual reading of Parshas Zachor is required min haTorah, several later authorities find this position difficult to sustain, contending that the requirement was introduced by Chazal. For example, the Minchas Chinuch (#603) states that the requirements for a minyan and a sefer Torah can be only miderabbanan. Similarly, Shu’t Toras Chesed (Orach Chayim #37) provides a lengthy analysis as to why he feels that it is difficult to rule that reading Parshas Zachor annually is a Torah requirement. Nevertheless, in his final conclusion, he accepts the decision of the earlier authorities who rule that the Torah requires that we hear Parshas Zachor every year.

Hearing the parshah

At this point, we should explain the following question: If we are required to read Parshas Zachor, how do we perform the mitzvah by listening to the reading, without actually saying the words? The answer is that there is a halachic principle called shomei’a ke’oneh, hearing someone recite the appropriate passage fulfills a mitzvah responsibility the same way reciting it does. Shomei’a ke’oneh explains how we observe the mitzvah of kiddush when we hear someone else recite it, and applies in numerous other situations, such as reading Megillas Esther and blowing shofar.

For shomei’a ke’oneh to work, the individual who is reciting must have in mind that he is performing the mitzvah on behalf of those listening, and the listeners must have in mind that they are fulfilling their duty to perform the mitzvah by listening. It is for this reason that, in most shullen, prior to the reading of Parshas Zachor the gabbai, baal keriah or rabbi announces that everyone should have the intention to fulfill the mitzvah.

Custom of the Gra

The Maaseh Rav (#133) records that the Gra not only received the aliyah for Parshas Zachor, but used to read the Torah himself for that aliyah. Presumably, the reason he did this was because of the general principle of mitzvah bo yoseir mibeshelucho, “it is a bigger mitzvah to fulfill a commandment by performing the mitzvah oneself than by relying on someone else to perform it.”

The Sefer Torah was pasul!

What is the halachah if one discovers, after the reading, that the Sefer Torah used for reading Parshas Zachor is missing a letter or has some other defect that renders it invalid? Must one re-read Parshas Zachor?

Allow me to provide some background. Although there are rishonim who rule that the mitzvah of keri’as haTorah does not require reading from a kosher Sefer Torah, the halachic conclusion is that it does. However, if during or after keri’as haTorah one finds that the sefer Torah was not kosher, one is not required to repeat what was already read (Shulchan Aruch, Orach Chayim 143:4). The rationale behind this is that since the mitzvah of reading the Torah is miderabbanan, one can rule that, bedei’evid, after one read the Torah, one fulfilled the mitzvah.

Based on the assumption that the mitzvah of Parshas Zachor is min haTorah, the Pri Megadim suggests that if the sefer Torah used was found to be invalid, one is required to read Parshas Zachor a second time, from a different sefer Torah (Pri Megadim, Mishbetzos Zahav, Orach Chayim 143:1).

Birkas hamitzvah

Why is no birkas hamitzvah recited for Zachor? When Parshas Zachor is read as maftir, the person receiving the aliyah recites birkas haTorah before it is read, as we do with all aliyos to the Torah. Why is no birkas hamitzvah recited before reading Zachor es asher asah lecha Amelek,since it is one of the 613 mitzvos?

The authorities answer that we do not recite a brochah on an act of destruction, even though the world benefits from the removal of evildoers. This can be compared to one of the reasons cited why we do not recite the full Hallel on Pesach after the first day or days. “My creations are drowning, and you are singing praise?” Similarly, it is inappropriate to bless Hashem for the ability to destroy evil (Kaf Hachayim 685:29, quoting Yafeh Leleiv).

What exactly is the mitzvah?

Among the rishonim and geonim, we find differing opinions as to exactly what this mitzvah entails. Some understand that the mitzvah of remembering Amalek is a requirement to know the laws involved in destroying Amalek (Raavad and Rash to Sifra, beginning of Parshas Bechukosai, as explained by the Encyclopedia Talmudis). According to this approach, the mitzvah of zechiras Amalek is primarily a mitzvah of learning Torah.

On the other hand, most authorities seem to understand that the mitzvah is to take to heart the evil that Amalek did and represents, and that it is our responsibility to combat evil in the world and help make the world a more G-dly place.

Why specifically Amalek? Because after the Exodus from Egypt and the splitting of the sea, all the nations were afraid of the Jews, until the moment that Amalek attacked. Although Amalek was beaten, this attack decreased the nations’ tremendous awe and fear of the Jews (Rashi).

An afternoon reading

At this point, I would like to address one of the questions cited above:

“At the outreach program that I run, many of our students do not arrive on Shabbos until the afternoon. Should we have a second Parshas Zachor reading for them?”

This question was posed to Rav Shmuel Vozner, of Bnei Braq, by someone doing outreach in a small community in Brazil (Shu’t Shevet Halevi 4:71). The community had a minyan in the morning, but most of the people did not come. The question was whether they should have a second Parshas Zachor reading late in the day.

Rav Vozner compares this situation to the following responsum authored by the Chida.

On Shabbos Parshas Shekalim in a small town, the local townspeople forgot to read the special maftir on Shabbos morning, and realized it in the afternoon. The townspeople proposed three options:

Some suggested that at minchah they read Parshas Shekalim for the kohen, and for the other two aliyos they read the regular minchah reading from the next week’s parshah.

Others suggested that they read Parshas Shekalim on Monday, instead of the weekday reading, since it was still before Rosh Chodesh Adar.

Still others suggested that they read Parshas Shekalim the next Shabbos, as maftir.

The Chida disputed all three approaches, contending that Parshas Shekalim may be read only in the morning, and can be read only on the Shabbos on which it is designated to be read. In his opinion, one who missed reading Parshas Shekalim at its appropriate time does not fulfill the takanas chachamim by reading it any other time (Shu’t Yosef Ometz #27).

Rav Vozner contends that, according to the Chida, just as one cannot read Parshas Shekalim after its designated time, one cannot read Parshas Zachor after its designated time, and that, therefore, one cannot read it in the afternoon for those who missed it in the morning.

However, it appears that not all authorities accepted this ruling of the Chida. The Dagul Meirevavah (Orach Chayim 135) rules that a community that was unable to have keri’as haTorah on Shabbos morning, but was able to have it on Shabbos afternoon, should read the full reading and call up seven people prior to beginning minchah. Then, after reciting Ashrei and Uva Letzion, they should take out the Sefer Torah again and read the appropriate minchah reading from the following week’s parshah. Thus, he holds that one may read the main Shabbos reading in the afternoon, if necessary, which disagrees with the Chida’s ruling.

One could argue, however, that the Dagul Meirevavah might accept the Chida’s ruling that one cannot read Parshas Shekalim in the afternoon, but for a different reason: maftir may be read only immediately following the rest of the week’s reading, and not by itself.

However, there might be a difference between Parshas Shekalim, whose reading does not fulfill any mitzvah of the Torah, and Parshas Zachor. Since Parshas Zachor might fulfill a Torah requirement, there is a responsibility to hear it, even if you were not in shul Shabbos morning. This is the reason why there is a widespread custom of having Parshas Zachor readings in the afternoon for those who cannot attend the reading in the morning.

Women and Parshas Zachor

Now that we understand the basics of the mitzvah, we can address the first question asked above — whether women are obligated to hear Parshas Zachor annually. The Chinuch states that women are excluded from the requirement to remember to destroy Amalek, since they are not expected to wage war. In his opinion, women have no obligation to hear Parshas Zachor, although they certainly may hear it and receive reward for doing so, as one who observes a mitzvah in which s/he is not obligated.

Other authorities dispute the Sefer Hachinuch’s approach. In Adar 5628 (1868), Rav Yaakov Ettlinger, the author of the classic Aruch Laneir commentary on several mesechtos of the Gemara, was asked by his son-in-law, Rav Moshe Leib Bamberger, whether women are required to hear Parshas Zachor. The Aruch Laneir reports that he asked his rebbe, Rav Avraham Bing, who told him that Rav Nosson Adler (the rebbe of the Chasam Sofer) ruled that women are required to hear Parshas Zachor, and he insisted that they all go to hear it. The Aruch Laneir explains that Parshas Zachor is not a time-bound mitzvah, since one can read Parshas Zachor whenever one wants, as long as one reads it once a year. He then quotes the Chinuch’s reason to absolve women from the obligation, and notes that it should not make any difference if women are the actual warriors, since they are involved in destroying Amalek – as evidenced by Esther’s participation (Shu’t Binyan Tziyon 2:8).

Others dispute the basic assumption of the Chinuch, since, in a milchemes mitzvah, everyone is obligated to contribute to the war effort, even a newlywed bride (Sotah 44b). Evidence of this is drawn from Yael, who eliminated Sisra, and Devorah, who led that war effort (Minchas Chinuch). On the other hand, others find creative reasons to explain and justify the Sefer Hachinuch’s position. (The intrepid reader is referred to the responsum on the subject penned by Rav Avraham of Sochatchov [Shu’t Avnei Nezer, Orach Chayim #509].)

The Kaf Hachayim (685:30) presents a compromise position, ruling that women are obligated in the mitzvah to remember the events of Amalek, but are not obligated to hear Parshas Zachor, since this is a time-bound mitzvah. (See also the Toras Chesed, who reaches a similar conclusion, but based on a different reason. More sources on this topic are cited by Shu’t Yechaveh Daas 1:84.)

With or without a brochah?

It has become fairly common today to have special women’s readings of Parshas Zachor later in the day, for the benefit of those who must take care of their children in the morning, during regular shul davening. The universal practice is not to recite a brochah of any type before these readings. There are three reasons why one should not recite a brochah on the afternoon reading:

(1) We do not recite a brochah on the mitzvah of Zachor.

(2) It is not certain that women are obligated to hear this reading.

(3) It is not clear that one may recite maftir when it does not immediately follow the reading of the Torah.

Despite what we have just written, some authorities contend that whenever one reads from a sefer Torah in public, one is required to recite a brochah, because of the Torah-ordained mitzvah of birkas haTorah. In their opinion, this is true even when the reading itself is not required, and even when one has already recited birkas haTorah in the morning (Be’er Sheva and Shu’t Mishkenos Yaakov, both quoted by the Toras Refael #2). Although the Toras Refael concludes that most rishonim dispute that reciting birkas haTorah under these circumstances is a Torah requirement, he nevertheless understands that the Shulchan Aruch rules that birkas haTorah is required miderabbanan, whenever the Torah is read in public.

Based on this opinion of the Toras Refael, some contemporary authorities feel that one should avoid entirely the practice of additional Shabbos Zachor readings, since the special reading creates a safek brochah, a question as towhether one should recite a brochah on the reading (seen in print in the name of Rav Elyashiv). Nevertheless, the accepted practice is to have these special readings to enable women to fulfill the mitzvah.

On the other hand, the Minchas Yitzchak was asked whether one makes a brochah for an auxiliary Parshas Zachor reading (Shu’t Minchas Yitzchak 9:68). He quotes those who contend that every public reading of the Torah requires a brochah, and then notes many authorities who did not share this opinion. The Minchas Yitzchak then specifically mentions the practice of those who read all of Sefer Devarim in shul on the night of Hoshanah Rabbah without reciting a brochah, noting that this was the practice of the Divrei Chayim of Sanz. He also quotes several other authorities who advocate reading the parshah of the day’s nasi after davening each day of the first twelve days of Nissan, also a custom performed without first reciting a brochah.

Thus, we have several precedents and authorities who ruled that one may have a public reading of the Torah without reciting a brochah, and there is, therefore, no need to change the established practice of reading Parshas Zachor and not reciting a brochah beforehand. We should also note that when the Magen Avraham (139:5) quotes the opinion of the Be’er Sheva, he opines that once one has recited birkos haTorah in the morning, he exempts himself from any requirement to recite further brochos on reading Torah that day, unless there is a specific institution of Chazal to recite them.

Reading on Purim

Some authorities contend that a woman may fulfill her responsibility to hear the mitzvah of mechiyas Amalek by hearing the Torah reading on Purim that begins with the words Vayavo Amalek (Magen Avraham 685). Since many later poskim dispute this, I refer you to your halachic authority regarding this question.

Conclusion

The Semak (Mitzvah #23) explains that the reason for the mitzvah not to forget what Amalek did is so that we always remember that Hashem saved us from Amalek’s hands. Constant perpetuation of this remembrance will keep us in awe of Hashem, and this will prevent us from acting against His wishes.

Shul Building, Part II

Question #1: One shul

“May we merge two existent shullen, when each has its own minhagim?”

Question #2: Two shuls

“Is it permitted to leave a shul to start our own?’

Question #3: More seats?

“Can there ever be a problem with adding more seats to a shul?”

Introduction:

Our batei kenesiyos and batei midrashos, the buildings that we designate for prayer and for study, are referred to as our mikdash me’at, our holy buildings reminiscent of the the sanctity of the Mishkan and the Beis Hamikdash.

As I mentioned in last week’s article, there is a halachic requirement to build a shul. To quote the Rambam (Hilchos Tefillah 11:1-2), Any place that has ten Jews must have available a building that they can enter to pray at every time of prayer.

Changing neighborhoods

An interesting teshuvah from Rav Moshe relates to a shul building that had been originally planned with a lower level to use as a social hall, with the shul intended to be on the upper floor. They began to use the social hall for davening until they built the shul on top, but the neighborhood began to change. Before they even finished the social hall, it became clear that they would have no need to complete the structure of the building. They never finished the building, and instead, directed the efforts and finances toward purchasing a new shul in a neighborhood to which people were moving. The old shul, or, more accurately, the “social hall” part of the old shul building, is at the stage where there is barely a minyan left, and the dwindling numbers imply that it is not going to be very long until there is no functioning minyan. The question is that they would like to sell the old building and use the money to complete the purchase of the new building. Furthermore, the mikveh in the town is now in a neighborhood to which women are hesitant to travel, so they want to use the funds from the old shul building to defray the construction costs of a necessary new mikveh.

Because of the specific circumstances involved, including that it is unlikely that people from the outside will drop in to daven in this minyan anymore, Rav Moshe rules that they are permitted to sell the building.

A similar responsum from Rav Moshe was when they needed to create a shul in a neighborhood where there was a good chance that the Jewish community there would not last long. Rather than declare their building a shul, they called it a library and used it as their shul. Rav Moshe suggests that they might have been required to do so, since they knew from the outset that the days of the Jewish community were numbered (Shu”t Igros Moshe, Orach Chayim, 2:44).

More seats?

At this point, let us discuss the third of our opening questions:

“Can there ever be a problem with adding more seats to a shul?”

There is an early responsum on the topic (Shu”t Harivosh #253), and the ruling might seem to us counterintuitive. A wealthy individual purchased several seats in the shul many years before. Probably, when the shul was built, the community had sold or perhaps even auctioned seats, at prices depending on their location (think of the relative ticket prices on theater seats, lehavdil). The seats are considered private property and are even at times rented out to others.

There is now a shortage of seats in the shul and the community would like to add new seats in empty areas of the shul. The wealthy fellow claims that this will make it more difficult for him to get to his seat, and that his own seat will be more crowded as a result. Can the community add seats, notwithstanding his claim?

The Rivosh rules that the community cannot add new seats, because the wealthy fellow already owns the right to get to his seat in a comfortable way. However, the Rivosh rules that the community may do the following to try to increase the availability of seats:

1. They may set a limit on the rental price of the existing seats.

2. They may pass a regulation that unused seats must be rented out.

Building two shuls

There is an old Jewish joke about the Jew stranded on a desert island who built two shuls, one to daven in, and the other never to walk into. Is there any halachic basis to this habit we have of opening several competing shullen in the same neighborhood?

Indeed, there are old responsa regarding this question. The Radbaz, one of the greatest halachic authorities of the fifteenth century, was asked such a shaylah (Shu”t Haradbaz #910).

A man named Yehudah Abualfas wanted to open a second shul in his town. The background appears to be as follows: The community, which may have been located somewhere in Egypt, was composed predominantly of families who originated from Tunisia, but there were individuals who had settled there from other places. The shul followed the minhag of Tunis.

Yehudah Abualfas, who was born and raised in this community with Tunisian customs, and everyone else living in the town, were members of the general community. They donated to the community’s tzedakah fund, participated in its fees and taxes, and davened in the community shul which followed minhagei Tunis.

Abualfas’s family originated from a place where they followed the customs of the Spanish communities, not those of Tunisia. (Ashkenazim tend to group Sefardim and Edot Hamizrah together as one group. Technically, Sefardim are those whose antecedents once lived in Spain, whereas there were Jewish communities from Morocco to Iran and even farther east whose ancestors never lived in Spain and should be called Edot Hamizrah.) Abualfas and his friends had begun to develop their own community, consisting of members who identified as Sefardim and not as Tunisians, and they wanted to create their own community following minhag Sefard.

Shul versus community

The Radbaz divides the question into two topics: May the Sefardim establish their own shul, and may they establish their own community?

Regarding the establishing of their own community, which would mean that they would no longer participate in the tzedakah fund and other taxes and fees of the general community, the Radbaz rules that, once they have individually been paying as members of the main community, they cannot separate from that community and create their own. As individuals, they are bound to continue contributing to the main community.

However, regarding whether they may create their own shul, the Radbaz rules that they may, for the following reason: since they do not want to be forced to daven with the rest of the community, their desire to have their own shul will disturb their kavanah while davening. The Radbaz discusses at length the issue of davening with kavanah. He notes that one is not permitted to daven when one is angry, and that the Gemara states that, if the amora Rav Chanina ever got angry, he did not daven that day. Furthermore, we see that any distraction is a reason why one should not daven, even that of an enticing fragrance. Therefore, one may not daven when in the presence of people that one does not like. The Radbaz further suggests that just as there is a halacha that one will study Torah properly only when he is interested in the topic, a person will be able to concentrate in his davening only when he is praying where he is happy. For these reasons, the Radbaz rules that people who are not satisfied praying with the rest of the community are permitted to organize their own shul. However, he rules that it is within the community’s prerogative to ban the forming of other shullen, when this will harm community interests.

Berov am hadras melech

The Radbaz then discusses the halachic preference of berov am hadras melech, a large group of people (attending a mitzvah) honors the King (Rosh Hashanah 32b). This means that it is preferable that a large group of people daven in one shul, rather than split among several smaller shullen. The Radbaz concludes that, indeed, it is preferable for everyone to daven in the same shul but, when people will be unhappy, that factor permits them to open their own shul.

The Radbaz closes this discussion with the following:

“Do not interpret my words to think that I believe that dividing into different shullen is good. G-d forbid… However, we are required to try as hard as possible that everyone pray with a full heart to his Father in Heaven. If it is impossible to pray with a full heart when davening in a shul that one does not enjoy, and the people will constantly be arguing, having different shullen is the lesser of the two evils.”

An earlier authority, the Rivosh (Shu”t Harivosh #253) mentions the same ruling — individuals who want to establish their own breakaway minyan cannot be stopped, and that it is improper to prevent this. However, if the members of the existing shul claim that their shul requires the income or membership to keep going, one should examine whether the claim is truthful. If, indeed, it is, one should work out a plan that accommodates the needs of both communities. (See also Rema, Choshen Mishpat 162:7.)

Two shuls

At this point, we can now address the second of our opening questions: “Is it permitted to leave a shul to start our own?”

The short answer is that there are circumstances when this is permitted, although, in an ideal world, it is not preferred.

One shul

At this point, let us examine the first of our opening questions: “May we merge two existent shullen, when each has its own minhagim?”

The answer is that, because of the rule of berov am hadras melech, it is preferable to merge shuls into a larger entity, but, as I explained above, this will depend on circumstances (see also Shu”t Binyan Tziyon 1:122). If the members understand that it is a greater honor to Hashem to have a large shul with many people davening together, that is preferred.

Conclusion

Understanding how much concern Chazal placed in the relatively minor aspects of davening should make us more aware of the fact that davening is our attempt at building a relationship with Hashem. As the Kuzari notes, every day should have three high points — the three times that we daven. We should gain our strength and inspiration for the rest of the day from these three prayers.

The power of tefillah is very great. Man was created by Hashem as the only creation that has free choice. Therefore, our serving Hashem and our davening is unique in the entire spectrum of creation. Remember that we are actually speaking to Hashem, and that we are trying to build a relationship with Him. Through tefillah, one can save lives, bring people closer to Hashem, and overturn harsh decrees. We are required to believe in this power. One should not think, “Who am I to daven to Hashem?” Rather, we must reinforce the concept that Hashem wants our tefillos, and He listens to them!

Shul Building

Question #1: One shul

“May we merge together two existent shullen, when each has its own minhagim?”

Question #2: Two shuls

“Is it permitted to leave a shul to start our own?’

Question #3: Old shul

“In our town, almost everyone has moved away from the ‘old neighborhood,’ which has now, unfortunately, become a slum. The sprinkling of Jewish people still there can no longer maintain the shul. Are the people who used to live there still obligated to maintain the old shul building?”

Question #4: New shul

“We have been comfortably davening in different people’s houses, three times a day, seven days a week. Now, some individuals are clamoring that they want us to build a shul, which is a huge expense. Isn’t this chutzpah on their part, when we are all struggling to pay our mortgages?”

Introduction:

Our batei kenesiyos and batei midrashos, the buildings that we designate for prayer and for study, are referred to as our mikdash me’at, our holy buildings reminiscent of the the sanctity of the Mishkan and the Beis Hamikdash.

There is a halachic requirement to build a shul. To quote the Rambam (Hilchos Tefillah 11:1-2), Any place that has ten Jews must have available a building that they can enter to pray at every time of prayer. This building is called a beis hakenesses(synagogue). The members of the community can force one another to build a synagogue, to purchase a sefer Torah and books of the prophets and of the kesuvim. When you build a synagogue, you must build it in the highest part of the town… and you must elevate it, until it is taller than any of the courtyards in town.

We see from the words of the Rambam that it is not sufficient to have an area available in which one can daven when necessary – it is required to have a building designated specifically for this purpose, even if the shul will be empty the rest of the day (Shu”t Igros Moshe, Orach Chayim, 2:44). Rav Moshe Feinstein explains that a community is required to have a building designated to be their mikdash me’at.

Since it is a community responsibility to have a shul building, the minority of the membership of a community may force the majority to raise the money to build a shul (Rema, Choshen Mishpat 163:1). In earlier generations, communities had the authority to levy taxes on their members. Since building a shul is a community responsibility, they could require people to provide the funds necessary for this project.

Must we build a shul?

At this point, let us address one of our opening questions: “We have been comfortably davening in different people’s houses, three times a day, seven days a week. Now, some individuals are clamoring that they want us to build a shul, which is a huge expense. Isn’t this chutzpah on their part, when we are all struggling to pay our mortgages?”

The answer is that, not only is it not chutzpah on the part of those individuals, the halachic right is on their side. The community is required to have a shul, and it is unsatisfactory that the minyan takes place in a home that is not meant to be a beis tefillah. Therefore, individuals can certainly force the rest to build a shul.

I cannot resist telling over the following story from my experience as a shul rav. At one time, I was invited for an interview to a new shul that was located in an affluent area. I made a trip to meet the shul search committee, which was very interested in engaging me as their rav. They showed me the converted house that they were using as the shul, and mentioned that when they had renovated the building, they did so in a way that there would be an apartment in the building for the rav to use as his residence, since they did not have much money for a respectable salary. In their minds, since the rav could now save himself mortgage or rent money, that was a hefty part of what they intended for his salary.

I noted to them that in the position I had at the time, I could devote myself fully to rabbinic duties, something that would be quite impossible in the circumstances that they proposed. Their response was that although they understood my predicament, this was all they could afford, since most of their members were paying very huge mortgages for the zechus of living in this neighborhood. I made a mental note that none of them seemed to feel that the apartment part of the shul building that they were proposing was certainly nothing that any of them would consider suitable residential accommodations, nor would they consider the shul building representative of the high-class lifestyle that they had chosen for themselves.

How do we assess?

In earlier generations, the Jewish community had the ability to levy taxes and other fees on its membership. Virtually all Jewish communities had fairly strong authority over its membership because the community levied taxes and also was responsible for collectively paying taxes to the local monarch.

When assessing individuals for the construction of a local shul, do we charge according to people’s financial means, or does everyone share equally in the costs of the building?

The Rema rules that when raising the money for a shul, we take into consideration both the resources of the individuals and also who will be using the facility. Therefore, when assessing people for the building of a shul, the costs are allocated both according to the financial means and according to individuals. Thus, the wealthier members of a community will be paying a somewhat higher percentage of the costs.

Rent a shul

If the community does not have the resources to build or purchase a shul, they can force one another to put up enough money to rent a place (Mishnah Berurah 150:2)

Where not to rent

In a responsum in Igros Moshe (Shu”t Igros Moshe, Orach Chayim 3:25), Rav Moshe Feinstein was asked the following: There is no orthodox shul in town, and they have been davening in houses. Now, they want to rent space from a local conservative congregation. May they do so?

Rav Moshe prohibits this for two reasons:

1. This arrangement provides some credibility to the conservative congregation.

2. When people see the orthodox people entering or exiting the building of the conservative temple, they may think that these people are intending to pray in the conservative facility, which is prohibited. This involves the prohibition of maris ayin, doing something that may raise suspicion that one violated halacha.

Changing neighborhoods

Let us now address a different one of our opening questions: “In our town, almost everyone has moved away from the ‘old neighborhood,’ which has now, unfortunately, become a slum. The sprinkling of Jewish people still there can no longer maintain the shul. Are the people who used to live there still obligated to maintain the old shul building?”

This question was asked of Rav Moshe Feinstein (Shu”t Igros Moshe, Orach Chayim 3:28).

In the case that he was asked, the shul had already opened a new facility in a nicer area and, until this point, the expenses of the old shul were being covered from the budget of the new shul. However, the members no longer saw any gain from doing so, since it was only a question of time until the old shul would no longer be at all functional. They would like to close down the old shul and sell the building. Are they permitted to?

The general rule is that a shul is considered communal public property and, as long as it functions as a shul, no one has the right to sell or modify its use. This is because the “owners” of the shul include anyone who might visit the area and want to find a minyan in which to daven. This is true, providing that there are still minyanim that meet in the shul on a regular basis — they cannot sell the building or close it down (Shu”t Igros Moshe, Orach Chayim III #29).

In the case at hand, Rav Moshe rules that those who have moved out of the neighborhood of the old shul have no responsibility to pay for the upkeep or repairs of the shul building that they are not using. The fact that the community has been treating the two shul buildings as one institution does not change this. Rav Moshe then mentions that, since the old shul is in a bad neighborhood, they may have a responsibility to remove the sifrei Torah from the shul, and perhaps even the siddurim, chumashim and other seforim, in order to protect them. He concludes that, since those who still daven in the old shul have no means of their own to keep the shul going, it is permitted to shutter the shul building and sell it. He also mentions that, if the bank will foreclose on the mortgage and re-possess the building, this does not require them to continue paying the mortgage. Nor does the bank’s decision as to what it will do with the shul property after the foreclosure require them to continue paying the mortgage.

Regarding those who still live in the old neighborhood, Rav Moshe rules that they should conduct the minyanim in a house where the sifrei Torah and the other seforim will be secure (Shu”t Igros Moshe, Orach Chayim III #28).

An interesting teshuvah from Rav Moshe relates to a shul building that had been originally planned to have a lower level to use as a social hall, with the shul intended to be on the upper floor. They began to use the social hall for davening until they built the shul on top, but the neighborhood began to change, and it became clear that they would have no need to complete the structure of the building. They never finished the building, and instead, directed the efforts and finances toward purchasing a new shul in a neighborhood to which people were moving. The old shul, or, more accurately, the “social hall” part of the old shul building, is at the stage where there is barely a minyan left, and the dwindling numbers imply that it is not going to be very long until there is no functioning minyan. The question is that they would like to sell the old building and use the money to complete the purchase of the new building. Furthermore, the mikveh in the town is now in a neighborhood to which women are hesitant to travel, so they want to use the funds from the old shul building to defray the construction costs of a necessary new mikveh.

Because of the specific circumstances involved, including that it is unlikely that people from the outside will drop in to daven in this minyan anymore, Rav Moshe rules that they are permitted to sell the building. A similar responsum from Rav Moshe was when they needed to create a shul in a neighborhood where there was a good chance that the Jewish community there would not last long. Rather than declare their building a shul, they called it a library and used it as their shul. Rav Moshe suggests that this was a good suggestion, since they knew from the outset that the days of the Jewish community were numbered (Shu”t Igros Moshe, Orach Chayim, 2:44).

We will continue this article next week…

Tidbits of Interest

Some Aspects of the Halachos of Ribbis

Question #1: Small Thanks

“May I give a small present of thanks to someone who helped me out with a loan?”

Question #2: Doing a chesed

“Can I violate ribbis by doing a chesed?”

Question #3: Lending my Credit Card

“How can you violate ribbis by letting someone use your credit card?”

There are a total of six different prohibitions that can be violated when creating and paying a loan in which there is interest. Someone who loans money for interest is in violation of the Torah’s prohibition, even before any interest is, indeed, charged or collected (see Bava Metzia 62a; Shu”t Mahar”a Sasson #162).

According to the Mishnah, not only do the borrower and the lender violate the prohibition against ribbis, but the witnesses to the loan, the co-signer on the loan and the scribe who writes up the loan document are also in violation of the prohibition (Bava Metzia 75b). Thus, anyone causing the loan to be finalized is in violation of this mitzvah. This would include someone who notarizes a loan document that includes a ribbis provision, and might even include a lawyer who draws up a document that includes provisions for ribbis (Bris Yehudah 1:6).

The halachos of ribbis are quite complex, and a review of some of the halachos is always in order. From my experience, even seasoned Torah scholars make mistakes about these halachos and may even have business activities that violate the prohibition of ribbis. What makes these matters even more regrettable is that virtually every one of these situations can be alleviated easily by usage of a heter iska, which will be explained later in this article.

Chazal were so concerned that someone would violate the prohibition of ribbis that they wanted the lender to gain no perceived advantages from the loan, even when the gains are completely of a non-monetary nature. Thus, the lender may not ask the borrower to do him a favor that he would not have asked had he not loaned him money (Tosafos, Bava Metzia 64b s.v. Avol). Similarly, the borrower may not invite the lender to his simcha, if he would not have invited him otherwise.  It is even prohibited for the borrower to thank the lender for the loan (Graz, Hilchos Ribbis #9).

Chazal also prohibited ribbis that occurs before or after the loan exists. For example, it is prohibited for the borrower to bring a small gift to the lender, as a token of thanks for the loan (Mishnah Bava Metzia 75b). This is prohibited, even after the loan has been paid off, and even many years later.

Ribbis Without a Loan

The halacha prohibits charging for the use of one’s money, even when a loan did not actually take place. Thus, a merchant may not add interest charges to a bill (sent to a Jew), because it is past due. He is permitted to bill for the actual expenses accrued due to his having had to send an additional bill, as well as any other collection costs he incurs. However, the merchant may not add service charges because he was forced to borrow money off his credit line to cover the shortfall.

The prohibition against charging for delay of payment also applies to acquisitions. Thus, a store may not charge one price for cash and a different price for credit or delayed payment.

The borrower may pay a co-signer to guarantee a gemach loan. In a situation where the borrower defaults and the co-signer has to pay off the loan, the co-signer may collect what he paid from the borrower (Taz to Yoreh Deah 170:3).

Neighborly Loans

When neighbors borrow small items such as flour, sugar, or eggs, a loan has taken place. They may not intentionally return more than was borrowed, which would be considered ribbis. However, if they are uncertain exactly how much flour or sugar they borrowed, they are permitted to return enough to be certain that they have definitely returned as much as they borrowed (see Bava Metzia 75a). One may return an item that is similar, but not identical, to what was borrowed, if the buyer and seller are not concerned about the difference. Thus, one who borrowed a loaf of bread of one brand need not be concerned whether the loaf of bread that he returns is the same brand or the identical size (Rema, Yoreh Deah 162:1). Similarly, one need not be concerned that the price may have fluctuated in the interim (Shaar HaTziyun 450:4). .

Ribbis Without any Benefit to the Lender

The Torah prohibits ribbis if the borrower pays more than he borrowed, even when no benefit is gained by the lender.

An actual case will show us how people can be guilty of this violation without realizing it. Reuvain is involved in many chesed projects, including raising money for tzedakah. Yankel had an excellent business opportunity and asked Reuvain to help him finance his new endeavor, of course in a permitted fashion. Reuvain decided that he would rather utilize this opportunity for a different mitzvah. He tells Yankel, “Instead of becoming a partner in your business, I will lend you the money interest free, but I’d like to make a condition that some of the maaser from the profits goes to support a yeshiva.”

Reuvain assumes that by making the arrangements this way, he fulfills the mitzvah of lending someone money, which, indeed, is a big mitzvah of chesed, and, in addition, he will be causing someone else to give tzedakah, which is also a tremendous mitzvah. Unfortunately for both Reuvain and Yaakov, since giving the tzedakah was a condition of the loan, this arrangement incurs a Biblical prohibition of ribbis. Although the lender, Reuvain, does not gain from the loan, since a condition of the loan was that Yankel pay more money than he borrowed, this is considered a Torah violation of ribbis (Rema, Yoreh Deah 160:14). (In this instance, there would be no violation of ribbis if he asked Yankel as a favor to donate to the tzedakah cause. Alternatively, they could arrange some form of heter iska, as will be explained later.)

Borrowing Credit or Credit Cards

Here is another instance that occurs frequently, in which people wish to do a tremendous chesed but in reality they are involved in a serious infraction of ribbis. Mrs. Friedman and Mrs. Goldstein meet at a closeout sale where top quality mattresses are available at an unbelievable price. Members of Mrs. Friedman’s family need new mattresses, and she realizes that by purchasing them at the closeout prices she will be saving hundreds of dollars.

Unfortunately, Mrs. Friedman does not have the money to purchase the mattresses, nor does she have any credit cards at her disposal. As she is bemoaning the fact that she will have to forgo this opportunity to save so much money, Mrs. Goldstein, always eager to do a chesed, offers Mrs. Friedman to charge the mattresses on her credit card. A very grateful Mrs. Friedman gladly takes up the opportunity and purchases the mattresses. Her intention is to make the credit card payments accrued to Mrs. Goldstein’s card until she can pay off the balance and interest for the mattresses.

Without either lady realizing it, they have now created a major halachic problem. The credit card company did not lend the money to Mrs. Friedman, but to Mrs. Goldstein, whose name is on the card. For this reason, what has transpired here is that two loans have taken place, both with interest: one from the credit card company to Mrs. Goldstein, and a second from Mrs. Goldstein to Mrs. Friedman. If Mrs. Friedman makes payments directly to the credit card company, she will be repaying Mrs. Goldstein’s loan to the credit company and her own loan to Mrs. Goldstein simultaneously. Thus, she is now paying her loan to Mrs.Goldstein with interest and  both well-meaning ladies will have violated the laws against ribbis (Shulchan Aruch Yoreh Deah 168:17). The parties involved should immediately consult a halachic authority who understands the halachos of ribbis well, since there are several ways that the situation described above can be rectified. (The different ways to alleviate the problem might depend on the individual’s circumstances, and are beyond the scope and length of this article.)

A similar problem often happens in a business partnership, in which one partner has access to a credit line and borrows money from the credit line for the benefit of the business. Since the credit line is in his name and not that of the business, without realizing it, he has borrowed money from the bank and then loaned it to the business, in which he is only one partner. Thus, he is now considered to be charging his partners for interest on a loan he has made to them. Again, this problem can be alleviated with a heter iska.

What is a heter iska?

A heter iska is a halachically approved way of restructuring a loan or debt so that it is some form of business deal that is not a loan. There are numerous ways of making a heter iska, and, indeed, different situations call for different types of heter iska. It is important for everyone who is involved in any type of business dealings to understand the fundamental principle of every heter iska: That a heter iska restructures the loan so that it is an investment or acquisition, rather than a loan.

Borrowing from Jewish-owned banks

Many people borrow money from banks, mortgage companies, credit card companies (including stores), brokerages, and credit unions, without verifying whether they are owned by a Jewish controlling interest. Without using a heter iska, it is forbidden to borrow money with interest from any Jewish-owned business, even if it is incorporated. Although there are some poskim who permit lending money to a corporation without a heter iska, as will be explained later in this article, this author is unaware of any posek who permits borrowing from a Jewish-owned corporation, without a heter iska.

Corporations

Rav Moshe Feinstein ruled that it is permitted to lend money to a Jewish-owned corporation, without incurring a problem of ribbis. In Rav Moshe’s opinion, a loan must have an individual who is responsible to pay for it. When a corporation borrows, no individual is responsible to pay for the loan. Therefore, Rav Moshe contends that a loan to a corporation does not incur the prohibition of ribbis, provided that no individual personally guarantees the loan (Shu”t Igros Moshe, Yoreh Deah 2:63). It should be noted that many other poskim do not agree with this lenience of Rav Moshe, contending that there can be ribbis even when a corporation borrows money (see extensive discussion in Bris Yehudah pg. 138). One practical difference is that, according to Rav Moshe, it is permitted to have a savings account in a Jewish-owned bank without having a heter iska, whereas, according to the other opinions, it is forbidden. However, according to all opinions it is forbidden to borrow from a Jewish-owned bank, credit union or brokerage without a heter iska. Thus, one may not buy stocks on margin from a Jewish-owned brokerage without a heter iska.

Hashkafah of Ribbis

The mitzvah of Ribbis poses an interesting hashkafah question. Why does the Torah forbid making a profit from my money? The Torah encourages earning a livelihood, so what is wrong with earning a profit from lending out money?

Many answers are offered to this question. Kli Yakar presents the following approach: When a farmer plows and plants his field, he knows well that if it does not rain sufficiently or if a blight attacks his crop, he will have nothing to show for his efforts. Thus, even with all his hishtadlus, he knows that he must daven for Hashem to help his efforts. Similarly, a person who opens a business knows well that even with all his planning, his business may not be successful. Thus, he also knows that he must daven for Hashem to help his efforts. However, someone who makes his parnasah from lending out money seems to have his entire livelihood totally secure. He has no daily reminder forcing him to pray for his daily livelihood. For this reason, explains the Kli Yakar, Hashem did not want a person to make his livelihood this way. By banning this method of parnasah, the Torah forced a person to make parnasah in a way that he must be reminded daily of his need for Hashem’s help.

Of Frogs and Sanctification

Most people find it fascinating to discover that the great tzadikim,Chananyah, Mishael and Azaryah, learned from the frogs in this week’s parsha that there is a mitzvah to die al kiddush Hashem. Stay tuned to find out…

Question: Amphibious actions!

Where do we find that the deeds of amphibians affect a halachic decision?

Introduction:

The book of Daniel tells us the story of the great tzadikim, Chananyah, Mishael and Azaryah, who were thrown into a fiery furnace for refusing to prostrate themselves before the statue that Nevuchadnetzar had erected (see Daniel 3:1-30). The Gemara (Pesachim 53b) explains that their decision was based on the actions of the frogs in Mitzrayim. How and what Chananyah, Mishael and Azaryah derived from the frogs will be discussed shortly, but we first need to understand some halachic background on this topic.

In general, the observance of mitzvos is superseded when life is threatened. We are well familiar with the law that, in the case of a medical, fire or other emergency, Shabbos observance is suspended to the extent necessary to protect life. The Gemara (Yoma 85a-b) quotes several halachic sources that demonstrate this concept. The conclusion is that we derive the rule that Shabbos observance is suspended to protect life from the pasuk, Vechai bahem (Vayikra 18:5),that the purpose of the mitzvos is to cherish life.

Kiddush Hashem

On the other hand, there is a mitzvah of the Torah, Venikdashti besoch B’nei Yisroel, in which Hashem commanded us to sanctify His presence within the Jewish people. This law teaches that, when an evil malefactor wants Jews to desecrate the Torah, we are sometimes required to sacrifice our lives. When ten Jews are aware that, under these circumstances, a Jew is being coerced to break any commandment, Kiddush Hashem requires that he surrender his life (Sanhedrin 74b). In this situation, someone who did not surrender his life violated not only the positive mitzvah (mitzvas aseh) of Venikdashti besoch B’nei Yisroel, but he also violated a negative command (mitzvas lo sa’aseh) of Velo sechalelu es shem kodshi.

However, when an evil malefactor is coercing a Jew to violate the Torah, but ten Jews are unaware that this is happening, the Jew is not obligated to give up his life, and, according to many authorities, he is not permitted to. There are other exceptions when one is not required or permitted to give up one’s life, which we will learn about shortly.

The ruling requiring surrendering one’s life is only when the goal of the oppressor is exclusively to get Jews to violate the mitzvos. However, if his goal is to get some benefit or pleasure for himself, there is no obligation to surrender one’s life. The Gemara (Sanhedrin 74b) presents the following theoretical example to define the difference.

Rava said, “An idol worshipper who tells a Jew, ‘Cut that hay on Shabbos and feed it to the animals, or I will kill you,’ the Jew should cut the hay and not allow himself to be killed. On the other hand, if the idol worshipper demands of him, ‘Cut that hay on Shabbos and throw it into the fire,’ the Jew should allow himself to be killed and not cut the hay. What is the difference? In the latter case, the goal of the malevolent command is to have the Jew violate the mitzvah.”

Rashi notes that Rava was discussing a situation that took place in the presence of ten Jews or, as we will soon explain, during a time of persecution. Otherwise, a Jew is not required, and, according to some opinions, not permitted to give up his life.

What about idols?

Aside from the law of Kiddush Hashem that I just discussed, there are other situations in which one is required to surrender one’s life, rather than breach the Torah. The Gemara (Sanhedrin 74a) cites a dispute among tana’im concerning what is the halacha when someone’s life is threatened should he refuse to worship an idol. Rabbi Yishmael rules that, if the situation is in private, Vechai bahem applies, even regarding the prohibition of avodah zarah. In his opinion, one may perform the external motions that appear to be idolatrous to save one’s life. However, when the situation is in public, meaning that ten Jews know about it, Rabbi Yishmael agrees that the pasuk of Velo sechalelu es shem kodshi requires surrendering one’s life, rather than violating the Torah.

Rabbi Eliezer disagrees, ruling that the sin of avodah zarah requires yeihareig ve’al yaavor, meaning that one is always required to surrender one’s life rather than violate the prohibition against idolatry, even if the sin will be performed in private. Rabbi Eliezer derives this ruling from the pasuk we say several times daily, Ve’ohavto es Hashem Elokecha bechol levavcho uvechol nafshecho uvechol me’odecho, that we are required to love Hashem with our entire heart, soul and resources, which includes that we not renounce our belief in Him; we are required to demonstrate our love for Hashem, even in the event that it would require the ultimate sacrifice (Sanhedrin 74a).

Talmudic conclusion

Quoting the tana Rabbi Shimon ben Yehotzadok, the Gemara says that the Beis Din Hagadol, the final authority of halacha for the Jewish people, concluded that for three cardinal sins — idol worship, giluy arayos (incest, adultery and similar offenses), and murder — we always say yeihareig ve’al yaavor. The requirement to sacrifice one’s life rather than violate giluy arayos or murder is derived from other sources (Sanhedrin 74a).

In this context, the Gemara cites the following anecdote. A man approached the amora Rava, asking him the following she’eilah: The warlord of his town had told this man, “Go kill so-and-so; if not, I will kill you!” The man wanted to know whether he was permitted to follow the dictate of the warlord to save his life. Rava answered that the Torah does not permit murder, even to save your own life, because of the following point, “who tells you that your blood is redder. Perhaps the other person’s blood is redder than yours!” In other words, who tells you that Hashem prefers that you survive, when you have to kill someone else in order to do so (Nimukei Yosef ad locum)?

Thus, we see that there are two situations in which we rule yeihareig ve’al yaavor: When saving my life will require that I violate one of the three cardinal sins, or when the intent of the one posing the threat is only to get Jews to violate the mitzvos, and ten Jews are aware that this is happening.

During times of persecution

The Gemara (Sanhedrin 74a) adds a third situation in which the rule is yeihareig ve’al yaavor: When the government is intent on destroying Yiddishkeit, which the Gemara calls sha’as gezeiras malchus, literally, at the time of government decrees, one is required to give up one’s life rather than violate the Torah, even for a “light mitzvah.” What is defined as a “light” or small mitzvah? The Gemara explains that this includes even the difference between the color of the shoelaces that Jews and gentiles use. Rashi explains that the case is when there is a Jewish custom that is more modest. Since the Jews have accepted this practice, if the gentile is trying to get a Jew to violate accepted Jewish practice, he is required to give up his life. It is a Chillul Hashem to allow a gentile to force a Jew to violate accepted Jewish practice, and a Kiddush Hashem to follow Jewish practice. However, this halacha applies only when it is a time of religious persecution.

Rashi’s older contemporary, the Rif, explains that the gentiles wore red shoelaces. Although there is no halachic prohibition to wear a specific color of shoelace, since this was the defining difference in garb between Jew and non-Jew in that time and place, if a gentile insisted that he wants a Jew to dress like a gentile does, one is required to sacrifice his life and not do so.

Sum up

Although when life is threatened, the observance of a mitzvah is generally suspended, in three situations one is required to sacrifice one’s life rather than violate the Torah. The three situations are:

1. Being forced to commit one of the three cardinal sins.

2. At a time of persecution.

3. When someone is forcing a Jew to violate accepted Jewish law or practice in the presence of or with the knowledge of ten Jews.

The latter cases are true only when the perpetrator’s motive is to force Jews to forsake G-d’s law, but not when he is interested in benefiting from the transgression.

Based on the above, let us quote the Rambam:

“All members of the Jewish people are commanded to sanctify His great Name, as the Torah states, Venikdashti besoch B’nei Yisroel, and they are admonished not to desecrate it, as the Torah states, Velo sechalelu es sheim kodshi. How does this law manifest itself? If an idol worshipper will stand up and force a Jew to violate one of the mitzvos of the Torah in a situation that, if the Jew refuses, the idol worshipper will kill him, the Jew should transgress the mitzvah and not allow himself to be killed, since the Torah states, Vechai bahem — You shall live with them, and not die because of them. If he chooses to die and not violate the mitzvah, he is held responsible for the loss of his own life. When is this true? — regarding mitzvos other than idolatry, gilui arayos and shedding blood. However, regarding these three sins, if the idol worshipper tells him, “Violate one of these sins or be killed,” the Jew should allow himself to be killed and not violate the mitzvah.

“When is this true? When the idol worshipper’s intention is for his own pleasure, such as, he is forcing the Jew to build a house or to cook for the idol worshipper on Shabbos… . However, if the idol worshipper’s only goal is that the Jew violate the mitzvah, if… ten Jews are not present, the Jew should violate the mitzvah and not be killed. But if the idol worshipper forces the Jew in the presence of ten Jews, the Jew is required to give up his life rather than violate the mitzvah, even if it is one of the other mitzvos. Furthermore, these rules apply only when it is not a time when the gentiles are making decrees against the Jews. However, in an era that they are, such as when an evil king, like Nevuchadnetzar, makes decrees against the Jews to violate their religion or one of their mitzvos, a Jew is required to give up his life, regardless of which mitzvah he is being coerced to transgress and regardless as to whether this coercion is in the presence of ten Jews or in private” (Hilchos Yesodei HaTorah 5:1-3).

The Rambam continues: In every instance when it says that he should violate the mitzvah and not be killed, and the Jew chose instead to be killed rather than violate the mitzvah, he is guilty of giving up his life. And in every instance when it says that the Jew should give up his life rather than violate the mitzvah, and he surrendered his life and did not violate the mitzvah, he has sanctified Hashem’s Name. If this happened in the presence of ten Jews, he sanctified Hashem’s Name in public, as was done by Daniel, Chananyah, Mishael, Azaryah, Rabbi Akiva and others like them. These are the holy ones whose greatness is above all others… . However, one who was required to surrender his life, but chose instead to violate the mitzvah and did not surrender his life has desecrated Hashem’s Name, and, if ten Jews were present, he has desecrated Hashem’s Namein public, abrogated the positive mitzvah of the Torah, Kiddush Hashem, and violated a negative mitzvah of the Torah, Chillul Hashem. Nevertheless, since his violation was coerced, he is not culpable of transgressing of his own will and, therefore, not subject to punishment for the prohibition violated, since a person is not punished for a sin performed under coercion (Hilchos Yesodei HaTorah 5:4).

Elisha, owner of wings

In this context, the Gemara (Shabbos 130a) shares with us the following story about a tzadik named Elisha, who lived during the time of the Roman persecution:

“Why was he called Elisha, owner of wings?” It once happened that the evil kingdom (a Talmudic reference to the Roman Empire) decreed that any Jew who wears tefillin will have his brain smashed. Elisha went through the streets, proudly wearing his tefillin. A Roman soldier saw him and gave chase. Elisha whipped off his tefillin and hid them in his hands. The soldier caught him and demanded that Elisha tell him what he was holding. Elisha answered him that he was holding “dove’s wings.” Elisha then opened his hands and, indeed, he was holding the wings of doves! (We will soon explain why he used this example.)

How could he?

The rishonim ask why Elisha was permitted to remove the tefillin from his head. This was clearly an era of gezeirah, and, as we noted above, in such an era, one is required to give up one’s life even for a custom of the Jews, and certainly for a mitzvah of the Torah!

The rishonim answer that there is a difference between positive mitzvos and prohibitions. Since the evildoers could physically stop the Jews from keeping mitzvos requiring actions, e.g., by locking them up without access to tefillin, there is no requirement to sacrifice one’s life to fulfill them (Ran, Pesachim 6a in Rif’s dapim). However, in the case of participating in a forbidden activity in an era of gezeirah, there the Torah declared yeihoreig ve’al yaavor, that I am required to give up my life. This ruling is accepted by the poskim as the normative halacha (Shulchan Aruch, Yoreh Deah 157).

Return of the frogs

As mentioned in our introduction, the Gemara (Pesachim 53b) teaches that Chananyah, Mishael and Azaryah derived from the frogs that they could give up their lives, rather than bow to the statue. Chananyah, Mishael and Azaryah noted that the frogs jumped into the Egyptian ovens when the ovens were hot, thus cremating themselves. Thus, the frogs, who had no mitzvah of sanctifying Hashem’s Name, still did so. Chananyah, Mishael and Azaryah reasoned a fortiori (kal vechomer): if the frogs, who were not required to sanctify Hashem’s Name, burned themselves for the sake of demonstrating Hashem’s greatness, we certainly should.

Tosafos (ad locum) questions: Why did Chananyah, Mishael and Azaryah require a kal vechomer from the frogs to conclude that they should sacrifice themselves? The event with the statue of Nevuchadnetzar happened in public, and when an incident occurs in public and the evil person’s goal is to demonstrate that he can force a Jew to violate mitzvos, the Gemara requires that one give up one’s life. In such a case, it is a requirement to do so, even for a small mitzvah or even for a Jewish custom.

Rabbeinu Tam explained that, technically speaking, Chananyah, Mishael and Azaryah were not required to sacrifice themselves, because the statue that Nevuchadnetzar erected was not an idol – it was similar to the statues that we find in our cities whose purpose is to honor someone. Nevuchadnetzar instructed people to bow to the statue to demonstrate their subservience to him. Thus, there was no requirement for Chananyah, Mishael and Azaryah to give up their lives, but they derived from the frogs that it was permitted for them to do so.

In another approach, Rabbeinu Tam’s nephew, Rabbeinu Yitzchak (usually called simply the Ri) disagreed that this is what happened in the story of Chananyah, Mishael and Azaryah. Although he clearly accepts Rabbeinu Tam’s halachic analysis, he feels that the statue placed there by Nevuchadnetzar was, indeed, an idol. To answer the question why Chananyah, Mishael and Azaryah were not required to give up their lives because of the mitzvah of Kiddush Hashem, and needed reassurance from the frogs that they were permitted to sacrifice themselves, the Ri answers that Chananyah, Mishael and Azaryah could have fled. Their question was whether they were required to flee to save their lives or whether they were permitted to remain, knowing that by staying they would be required to give up their lives for Kiddush Hashem. They derived from the frogs that they were permitted to give up their lives for Kiddush Hashem, even though they had the opportunity to avoid the situation.

We see from this discussion two additional points:

1. Although there is a mitzvah of Kiddush Hashem, there is no requirement to make sure that one remains in his location to have the opportunity to perform the mitzvah. However, according to the Ri, it is permitted, and perhaps even meritorious, to do so.

2. We should note that the Rambam quoted above stated that, as a rule of thumb, when the Torah does not require yeihareig ve’al yaavor, one is prohibited from giving up one’s life to do so. This implies that the Rambam disagrees with Rabbeinu Tam, who ruled that Chananyah, Mishael and Azaryah were not required to sacrifice themselves in their situation, but were permitted to do so.

However, the Nimukei Yosef concludes that even the Rambam might agree here. When a person whom the Nimukei Yosef describes as a great tzadik sees that the generation is lax, he is permitted to sacrifice himself in order to teach his generation. He rallies evidence for this principle from the story of Chananyah, Mishael and Azaryah.

Conclusion

I quoted above the story of the great tzadik called Elisha, “the owner of wings,” and how he earned his moniker. The Gemara continues its sharing of the anecdote by asking why Elisha said that his tefillin were dove’s wings. The Gemara concludes that the Jewish people are compared to doves, as the pasuk in Tehillim (68:14) compares the Jewish people to the wings of a dove that are coated with silver, and her wing-feathers are like fine gold. Just as the dove is protected by its wings, Klal Yisroel is protected by its mitzvos (Shabbos 130a)! May we always be protected by our mitzvos and never have to live through times when our mitzvos or lives are challenged.

When May I Remove a Tree? Part II

The Midrash teaches that Yaakov brought with him to Egypt the shittim trees that would be planted so that the Bnei Yisroel would later be able to leave Egypt with wood to build the Mishkan. There is no halachic problem with uprooting non-fruit-bearing trees for lumber, but there is at times a halachic problem with uprooting fruit trees for lumber or other use. So, this provides an opportunity to discuss…

Question #1: Darkening Peaches

“A peach tree is now blocking sunlight from reaching our house. May we cut down the tree?”

Question #2: Building Expansion

The Goldbergs purchased a house hoping to expand it onto its lot that contains several fruit trees. May they remove the trees to expand their house?

Question #3: For a Shul

Congregation Ohavei Torah purchased a plot of land for their new shul building, but the property contains some fruit trees. May they chop down the trees for the mitzvah of building a new Beis Hakenesses?

Question #4: For a Sukkah

“We just moved into a new house, and the only place where we can put a sukkah is in an area that is shaded by a fruit tree. May we chop down the tree in order to have a place to build our sukkah?”

In a previous article, we discussed several issues concerning when it is permitted to remove or destroy a fruit tree. The Torah teaches that when going to war one may not destroy fruit trees unless doing so serves a strategic purpose, and that in general it is forbidden to destroy fruit trees randomly. In that article, I mentioned that there is a dispute among authorities whether one may raze trees in order to build a house in their place. We also learned that the Gemara considers it dangerous to destroy fruit trees, and, according to some authorities, this is true even when there is no prohibition involved in razing the tree.

A Shady Deal

At this point, let us refer to our opening question: “A peach tree is now blocking sunlight from reaching our house. May we cut down the tree?”

This actual question was addressed to the Chavos Yair, a great seventeenth-century, central-European posek.

Based on the opinion of the Rosh (Bava Kamma 8:15),who permitted cutting down a tree in order to construct a house, the Chavos Yair allowed chopping down the offending peach tree (Shu”t Chavos Yair #195). However, the Chavos Yair rules that this is permitted only when one cannot simply remove some branches to allow the light into his house. When one can remove some branches and spare the tree, the Chavos Yair prohibits chopping down the tree since it is unnecessary to destroy the entire tree. Even though the branches will eventually grow and again block his light, the Chavos Yair does not permit chopping down the entire tree, but requires one to repeatedly trim it. Thus, although he accepts the Rosh’s ruling permitting removing a tree for the sake of a dwelling, the Chavos Yair notes that this is permitted only when one cannot have the house and eat the fruits, too.

Expanding Living Space

The Chavos Yair further rules that the Rosh,who permitted chopping down a tree to allow construction on its place, only permitted this for an essential need of the house, and not merely to make the house nicer, such as to widen his yard or to provide a place to relax.

At this point, we can probably answer another of our opening questions. The Goldbergs purchased a house hoping to expand it onto its lot that contains several fruit trees. May they remove the trees to expand their house?

Even according to the Rosh, they may remove the trees only to provide something essential for the house. Thus, if the need is essential, this heter will apply. (However, we will soon share a different possible solution.)

Some Are Stricter

The Chavos Yair follows the Rosh’s approach and permits removing a fruit tree if there is no other way to build a house.However, not all later authorities are this lenient. When asked this exact question — “May one cut down a tree to construct a house?” — the Netziv,one of the leading authorities of nineteenth-century Lithuania, was not comfortable with relying on the opinion of the Rosh. Rather, he concluded that there are early authorities who disagree with the Rosh and permit razing a fruit tree only in the three situations that the Gemara mentions: When the tree is more valuable as lumber, when it is producing almost no fruit, or when it is affecting the growth of other fruit trees. In the first two instances, it is no longer considered a fruit tree. The Netziv (Shu”t Meisheiv Davar 2:56) provides two different reasons why, if it is still considered a fruit tree, one cannot remove it.

(1) One may chop down a fruit tree only when it is damaging other fruit trees.

(2) Chopping down a fruit tree is permitted only when removing it provides immediate benefit. However, when one clears a tree to make room for construction, there is no immediate benefit. The benefit is not realized until one builds the house — which does not take place until later,and we do not see from the Gemara that this is permitted.

Following this latter approach, it is prohibited to destroy older trees and replace them with new ones, and halacha-abiding fruit growers must wait until their fruit trees are hardly productive before replacing them with new saplings.

At this point, I refer back to the next of our original questions: 

“Congregation Ohavei Torah purchased a plot of land for their new shul building, but the property contains some fruit trees. May they chop down the trees for the mitzvah of building a new Beis Hakenesses?”

What About for Temporary Use?

This case is fairly similar to an actual shaylah that is discussed by the Yaavetz (She’eilas Yaavetz 1:76), a prominent18th century posek in Germany. A community is renting a house from a non-Jew for their shul. The number of congregants is now, thank G-d, exceeding the size of the shul building, and the gentile owner has allowed them to expand the building on which they still have nine more years on their lease. However, there is only one direction in which they can expand their building, and do to so would require uprooting a grape vine. The gentile owner has permitted them to rip out the vine for this purpose. The community’s question is whether expanding the shul is a valid reason to permit ripping out a grape vine, which is halachically considered a fruit tree. The question is more significant in light of the fact that the community’s benefit may be only temporary — the gentile landlord may not renew their lease when it comes up for renewal, and they may then need to look for new quarters.

The Yaavetz ruled that even the temporary use of a shul is a valid reason permitting the ripping out of the grape vine. However, because of his concern that it is dangerous to do so, he advises hiring a gentile to uproot the vine. Since the mitzvah of destroying fruit trees is not included among the mitzvos that a ben Noach must observe, the gentile is not required to observe this mitzvah and therefore it is not dangerous for him to remove it.

The Yaavetz then mentions another factor. In every instance mentioned by the earlier authorities, it was not possible to replant the tree that is being removed in a different place. The Yaavetz suggests that there is no prohibition to uproot a fruit tree if one will replant the tree elsewhere. Thus, he concludes that even when no other solution exists to permit destroying a fruit tree, one may remove it by its root and replant it elsewhere, and then use the land for whatever one chooses.

Saving the Goldbergs!

The Yaavetz’s suggestion is very welcome news to the Goldbergs. They purchased a new house hoping to expand it onto the huge lot that they have that contains several beautiful fruit trees. May they remove the trees to expand their house?

According to the Yaavetz, they may remove the trees and plant them elsewhere, and then expand their house onto the extended lot.Again, I suggest that the Goldbergs check whether this relocation of the tree can realistically be done.

There are a few concerns about relying on this ruling of the Yaavetz. First, I have been told that although the Yaavetz may have known that this can be done, the assumption among today’s experts is that a transplanted mature fruit tree will not survive. Thus, this will be considered destroying the tree,

Furthermore, even assuming that the tree can be successfully replanted, the ruling of the Yaavetz is not without its detractors. The Chasam Sofer (Yoreh Deah #102) the posek hador of early nineteenth-century central Europe, concludes that one should not rely on this idea of the Yaavetz to remove a tree when other lenient reasons do not apply. However, he does rule that even when halacha accepts that one may uproot a fruit tree, if one can replant it one may not destroy it, since the demolition of the tree is unnecessary. Thus, if a fruit tree is damaging other trees, one may destroy it only when replanting it is not an option.

Shady Mitzvah

At this point, I would like to discuss our fourth opening question:

“We just moved into a new house, and the only place where we can put a sukkah is in an area that is shaded by a fruit tree. May we chop down the tree in order to have a place to build our sukkah?”

This exact question was asked of Rav Tzvi Pesach Frank, who was the Rav of Yerushalayim for many decades until his passing in 1960. Rav Frank cites and analyzes many of the above-mentioned sources, and is inclined to be lenient, reasoning that the performance of a mitzvah cannot be considered a destructive act. He concludes that one should have a gentile remove it, but not as an agent for a Jew, although he does not explain how one accomplishes this (Shu”t Har Tzvi, Orach Chayim II #102).

Conclusion

Thus we see that there are different conclusions as to when one may destroy a fruit tree for a valid reason, and each person should ask his own rav what to do.

The Ramban explains that the reason for the mitzvah is that one should have trust in Hashem that He will assist us in vanquishing our enemies and then we will be able to use the fruit from this tree. Destroying the tree when this serves no strategic benefit means that we think we will never use it. Rather, one should feel that one will gain from this tree as soon as the enemy is vanquished. We should assume that the area and all it contains will become our property, so why destroy the tree growing there innocently? One should take care of this tree just as one would take care of a tree that is already my personal property.

High in the Thigh: The Mitzvah of Gid Hano’she

In the process of vanquishing his opponent wrestler, Yaakov Avinu was left with an injured thigh. To commemorate this event, the Torah teaches al kein lo yochelu benei Yisroel es gid hano’she asher al kaf hayarech ad hayom hazeh ki naga bechaf yerech Yaakov begid hano’she, “Therefore, the children of Israel may not consume the sinew that was displaced, which lies upon the ‘spoon’ of the thigh, since he struck the ‘spoon’ of Yaakov’s thigh on the displaced sinew (Bereishis 32:33 with Rashi).” As we will see shortly, this pasuk is written with precision, and we derive most of the halachos of this mitzvah from its words.

We see from the pasuk that Yaakov’s injury was that his “sinew” was “displaced.” The word “sinew” is not a scientific term, but a household or butcher’s term. Its Hebrew equivalent, gid, describes stringy body parts whose texture is too tough to chew comfortably, and may refer to nerves, tendons, ligaments, or even blood vessels (see Rambam, Peirush Hamishnayos, Zevachim 3:4).

In Yaakov’s case, the sinew involved is what is known in anatomy as the sciatic nerve, which runs through the pelvis and upper leg, from the lower back over the top of the hip and down the leg, at which point it divides into other nerves. The Torah describes this as the sinew that lies across the kaf hayarech, which literally means the “spoon of the thigh.” This refers to a piece of muscle that lies atop the femur and that has a spoon-like shape. Part of the sciatic nerve lies on top of this muscle, wedged against the bone socket on the other side. The Torah prohibits the consumption of this nerve, notwithstanding that it is not tasty, nor really edible. (It is not technically accurate to translate kaf hayarech as the socket, since the socket is above or in front of the femur [depending on whether we are describing a two-legged or a four-legged animal] and above or in front of the sciatic nerve. I will note that this is not the only mistranslation of this verse I have found in works that are reputed to be authoritative.)

This mitzvah is not mentioned anywhere else in the Torah. According to the Sefer Hachinuch, which lists the mitzvos in the order of their appearance in the Torah, this is the third mitzvah and the first lo saaseh of the 613 mitzvos. An entire chapter of Mishnayos, the seventh chapter of Chullin, is devoted to this mitzvah. Let us understand its details.

Not for the birds

The Mishnah states that the prohibition of gid hano’she does not apply to birds, because they do not have a “kaf,” which I have translated as the “spoon” of the thigh. Although birds have both a femur and a sciatic nerve, they are excluded from the prohibition of gid hano’she because the shape of their bones and muscles is different and does not fit the Torah’s description of the mitzvah (Rambam, Hilchos Ma’achalos Asurus 8:4). The Rambam (Commentary to the Mishnah) explains that the reason for this law is because the structure of the bird’s leg is very different from that of a man, and therefore not reminiscent of the miracle that occurred to Yaakov. (Those who would like to see an explanation of the Talmudic passage involved should look at the encyclopedic work Sichas Chullin and other contemporary works.)

The Gemara (Chullin 92b) discusses whether the halacha exempting birds from the prohibition of gid hano’she is true if a particular individual bird has an unusually shaped leg that resembles the “socket” of an animal, or, conversely, if the prohibition of gid hano’she still applies if an animal’s leg is misshapen, such that the muscle on its upper femur is not shaped like a spoon. The Gemara does not reach a conclusion on this question. Since it is an unresolved halachic issue germane to a Torah prohibition, a safek de’oraysa, the Rambam (Hilchos Ma’achalos Asurus 8:4) and the Shulchan Aruch (Yoreh Deah 65:5) conclude that both of these instances are prohibited.

Non-kosher species

Is the prohibition of gid hano’she limited to kosher species, or does it apply also to non-kosher species? This is actually a dispute among tanna’im. Rabbi Shimon contends that the prohibition of gid hano’she is limited to kosher species, whereas the tanna’im who disagree with him contend that the prohibition of gid hano’she applies equally to non-kosher species. In their opinion, the sciatic nerve of a horse, camel, pig or donkey is included in the prohibition of gid hano’she. The Rambam (Hilchos Ma’achalos Asurus 8:5) rules like Rabbi Shimon.

What difference does it make whether this sinew is prohibited as a gid hano’she, when it will be prohibited anyway as non-kosher? The answer is that since sinews have no flavor on their own, according to the opinion we will soon explain that ein begiddin benosein taam, sinews from a non-kosher species are not prohibited min haTorah. However, the gid hano’she would be prohibited min haTorah, according to the tanna’im who disagree with Rabbi Shimon.

Which thigh?

A person has two sciatic nerves, one on each leg. The verse implies that Yaakov was wounded on only one side. Which of his sciatic nerves was injured? Nothing overt in the story tells us. However, we can prove what happened from a passage of the Gemara, although we may be left to wonder how the Gemara knew this. There is a dispute among the tanna’im (Chullin 91a) whether the prohibition of gid hano’she applies to the sinews of both the right and left sides, or only to that of the right side. Both opinions understand that Yaakov was injured only in his right thigh. The question is whether Hashem prohibited the sciatic nerves of both sides so that we remember what happened, or only the one on the right thigh. We follow the opinion that it applies to both sides (Rambam, Hilchos Ma’achalos Asurus 8:1).

Inner and outer

On each thigh, there are actually two sinews that can be called the gid hano’she and are near one another. The inner gid, thus called because it runs alongside the bone on the interior of the animal, is the true gid hano’she, whose consumption is prohibited by the Torah. The outer gid does not lie on top of the thigh and is therefore not prohibited min haTorah. Nevertheless, Chazal prohibited eating the outer gid, also (Chullin 91a).

The tanna’im dispute how much of the inner gid is prohibited min haTorah. Rabbi Meir contends that the entire nerve is prohibited min haTorah (Chullin 92b), whereas the chachamim contend that, min haTorah, only the part of the gid lying atop the thigh bone is prohibited. In their opinion, the rest of the gid is prohibited only miderabbanan. A third opinion, that of Rabbi Yehudah, contends that the rest of the nerve is not prohibited even miderabbanan, and, therefore, he did not require its removal (Chullin 92b, 96a).

The dispute among the tanna’im appears to be how one translates the words of the Torah, the children of Israel may not consume the sinew that was displaced, which lies upon the “spoon” of the thigh. According to Rabbi Meir, the Torah is merely explaining the location of this sinew, but it is prohibited in its entirety. According to the other tanna’im, the prohibition is limited to the part of the sinew that “lies atop” the thigh, but not its continuation.

“Fat of the gid

The sciatic nerve lies protected in a layer of fat. This fat is called shumano shel gid and is permitted min haTorah. However, already in the time of the Gemara it was established practice not to eat it (Chullin 91a). It is therefore treated halachically as an issur derabbanan, a rabbinically established prohibition, and it must be removed together with both the inner and the outer giddin.

How early?

The tanna’im also dispute whether the prohibition of gid hano’she began already in the days of Yaakov Avinu, or whether it was first prohibited when the Jews received the Torah at Har Sinai (Mishnah, Chullin 100b).

Chayos

The Mishnah teaches that the mitzvah of gid hano’she applies to all kosher mammals. This includes the species of beheimah and of chayah. In other words, although there are mitzvos that apply to beheimah but not to chayah, and vice versa, the mitzvah of gid hano’she applies to both.

It is difficult to define the differences between beheimah and chayah.  Although we know that beheimah includes cattle and sheep, whereas chayah includes deer and antelope, the common definition of beheimah as domesticated species, and chayah as wild or non-domesticated species, is not halachically accurate. For example, reindeer, which qualify as chayah, are domesticated, whereas wisents and Cape buffalo, which are not domesticated, are probably varieties of beheimah. A more complicated, but far more accurate, definition of beheimah is a halachically recognized genus or category in which most common species qualify as livestock, and chayah is a halachically recognized genus or category in which most common species are not usually livestock.

The Gemara explains that it is dependent on the type of horn that the animal displays, but the terminology the Gemara uses to explain this is unclear and subject to disputes among the rishonim. Since we are uncertain which species are considered beheimah and which are considered chayah, we are stringent. This means any species of which we are uncertain is treated lechumra as both beheimah and chayah — unless we have a mesorah, an oral tradition, about the halachic status of this species (see Shach, Yoreh Deah 80:1, as explained by the Pri Megadim).

Cheilev

The Torah forbade consumption of certain internal fats, called cheilev — these are attached predominantly to the stomachs and the kidneys. Since the Torah prohibits consuming both cheilev and the gid hano’she, these forbidden parts must be removed from an animal before its meat can be eaten. This process is called “traberen,” a Yiddish word that derives from tarba, the Aramaic word for cheilev. The Hebrew word for the process is “nikur,” excising, and the artisan who possesses the skill to properly remove it is called a menakeir. It is interesting to note that the Rema (Yoreh Deah 64:7 and 65:8) points out in two different places that nikur cannot be learned from a text, only through apprenticeship.

Cheilev versus gid hano’she

There is a major difference between gid hano’she and the prohibition of cheilev. The prohibition of cheilev applies to species of beheimah, but not to chayah (Mishnah Chullin 89b). Thus, we have a difference in halacha between gid hano’she and cheilev, in that gid hano’she is prohibited in a chayah, whereas its cheilev is permitted.

This is germane in practical halacha. Because of the difficulty in removing all the cheilev correctly, many communities have the halachic custom not to traber the hindquarters, but, instead, to sell them to gentiles as non-kosher. However, many contemporary authorities have ruled that even those who have accepted this practice may still traber the hindquarters of a deer, which is definitely a chayah, to remove the gid hano’she, since the cheilev of a chayah is permitted. This is because the gid hano’she that is prohibited min haTorah is relatively easy to remove and does not involve as serious halachic issues as does the cheilev. Notwithstanding this heter, there is still a requirement that one who trabers the gid hano’she of a deer may do so only if he has been trained in performing this nikur.

The Mishnah

Having established the basic rules from the pasuk itself, we can now analyze more of the halachos of this mitzvah. An entire chapter of Mishnayos, the seventh chapter of Chullin, is devoted to understanding it. The opening Mishnah of this chapter begins as follows: (The prohibition of) gid hano’she applies both in Eretz Yisroel and in chutz la’aretz, both during the times of the Beis Hamikdash and when there is no Beis Hamikdash, regarding both chullin and sanctified offerings. It applies both to beheimos and to chayos, to both the right thigh and the left thigh. But it does not apply to birds, because they do not have a kaf.

The Gemara asks why the Mishnah needed to report that the prohibition of gid hano’she applies to kodoshim. Since animals are born as chullin, at the time of birth the animal’s sciatic nerve becomes prohibited as gid hano’she. Why would we think that the prohibition of gid hano’she might disappear when the animal is declared to be holy?

To resolve this difficulty, the Gemara proposes the following solution: There is a dispute among tanna’im referred to as yesh begiddin benosein taam, sinews have flavor, or ein begiddin benosein taam, sinews do not have flavor. “Sinews” refer to the parts of an animal that are not tasty, but are eaten incidentally while consuming the tasty meat. The dispute is as follows: Since sinews are eaten only as part of a piece of meat, are they considered food? If they are not considered food, then other prohibitions, such as the mixing of meat and milk, or the prohibition of non-kosher species, do not apply to them min haTorah, since these prohibitions apply only to edible parts of an animal.

Thus, regarding the giddin of a kodoshim animal, if giddin are not considered food (ein begiddin benosein taam), then the prohibition of kodoshim does not apply.  However, the sciatic nerve of a kodoshim animal is prohibited because of the prohibition of gid hano’she. The Shulchan Aruch concludes that ein begiddin benosein taam (Yoreh Deah 65:9).

Jewish identification

It is very interesting to note that, at times in Jewish history, the mitzvah of gid hano’she became the identifying characteristic of the Jew. Kaifeng, China, is a city of 4.5 million people on the southern bank of the Yellow River that attracts much tourism for its rich history. In the tenth and eleventh centuries, Kaifeng was the capital of China, and, for this reason, the city is known as one of the Seven Ancient Capitals of China. As history notes, when there are a lot of people, there is money to be earned, and when there is money to earn, one will usually find Jews.

At one point, over a thousand years ago, Jewish merchants from Persia and India settled in the area, created for themselves a Jewish community, and built shullen. Their shullen faced west toward Yerushalayim. Unfortunately, with the passing centuries, their descendants became completely intermarried and assimilated into the Chinese population. To this day, about 1,000 Kaifeng residents claim Jewish ancestry.

What does this have to do with the mitzvah of gid hano’she? The answer is that the Chinese identified the Jews with the practice of removing the gid hano’she, referring to Jews as the sinew-plucking people. Until recently, there was even a street in Kaifeng called “The Lane of the Sinew-Plucking Religion,” a reference to the Jews who once lived there.

Jewish American identification

Not only the Chinese identified the Jews because of the mitzvah of gid hano’she. Many years ago, when I was a rav in a small community in the United States, a non-observant Jew was interested in making a strictly kosher wedding for his daughter, because he had frum friends whom he wanted to accommodate. His daughter was willing to have a kosher wedding, as long as it did not look “too kosher.” I asked her what she meant that it should not look “too kosher,” to which she answered: “No ribs and no briskets.” I had been unaware that, to someone who did not keep kosher, forequarters meat, such as rib and brisket, is associated with “kosher-looking,” whereas hindquarters meat, not consumed in many places because of the difficulties in removing the gid hano’she and the cheilev, is viewed as “non-kosher looking.” Thus, the prohibition of gid hano’she defined a Jewish menu. (Fortunately, the executive chef of the hotel doing the kosher catering provided ideas for a perfectly kosher and very delicious meal that would, by the bride’s definition, not look too kosher.)

Conclusion

Although above I translated the word noshe as “displaced,” which is the approach of Rashi and therefore the most common rendering, Rav Hirsch understands that the root of the word noshe, similar to no’she, a creditor, means submission and powerlessness. Yaakov’s gid had been dislodged by his adversary; he was unable to control the muscle that moves the bone. The nerve, muscle and bone all existed, but their use was temporarily hampered. Thus, the gid hano’she denotes temporary relinquishment, but not permanent loss. Ya’akov is a no’she, a creditor, who has quite a large account to settle with Eisav and his angel.

To quote the Sefer Hachinuch: The underlying understanding of this mitzvah is to hint to the Jewish people that, while in the exile, although we will undergo many difficulties from the other nations, and particularly the descendants of Eisav, we should remain secure that we will not be lost as a people. At some point in the future, our offspring will rise and a redeemer will arrive to free us from our oppressor. By always remembering this concept through the observance of this mitzvah, we will remain strong in our faith and our righteousness will remain forever!

Certainly some very powerful food for thought the next time we sit down to a fleishig meal and note that we are eating only “kosher cuts!”

 

May I Smell My Esrog and Hadasim on Sukkos?

Although this question may seem trivial, it is indeed a serious shaylah that requires explanation. Sometimes, one may smell an esrog, while at other times one may not. Why is this true? Also, when it is permitted to smell an esrog, do I recite a bracha beforehand? If I do, which bracha do I recite?

We may ask similar questions regarding the hadasim, although the answers are not always the same. May I smell my hadasim, and which bracha do I recite before smelling them?

In order to explain the background to these questions, I first need to explain two very different areas of halacha, one concerning the laws of muktzah, and the other concerning the laws of brachos on fragrances.

MUKTZAH

The Gemara teaches us the following: One may not smell (during Sukkos) the hadas that is set aside for the mitzvah, but one may smell the esrog. The Gemara asks, “Why is there a difference between the hadas and the esrog?” The Gemara replies that since the main use of a hadas is for fragrance, it becomes muktzah, and one may not smell it. But since the main “use” of an esrog is for food, one may not eat it, but one may smell it (Sukkah 37b). This is the explanation of what the Gemara means.

This Gemara teaches that an item used for a mitzvah becomes muktzah machmas mitzvah; that is, designated solely for its specific mitzvah and not for a different use. This category of muktzah is different from the more familiar types of muktzah in several ways:

  1. As the Gemara teaches elsewhere (Sukkah 9a), this type of muktzah is prohibited min Hatorah, whereas other forms of muktzah are prohibited only miderabbanan.
  2. These items are muktzah only to the extent that one may not use them, but one may move them. This is different from most types of muktzah, which one may not move on Shabbos or Yom Tov.
  3. These items are muktzah only with regard to their primary, normal purpose: for example, one may not smell a hadas that is muktzah machmas mitzvah because the primary purpose of a hadas is for fragrance. However, one may use it (or them) for a secondary use, and that is why, according to the Gemara, one may smell the esrog. (A person who is interested in purchasing a fragrant item would consider buying hadasim, not an esrog.)
  4. This type of muktzah is prohibited even on Chol Hamoed, whereas other types of muktzah are prohibited only on Shabbos and Yom Tov.

Thus, it would seem that we may answer the original question I asked: May I smell my esrog and hadas on Sukkos? And the answer is that I may smell my esrog, but I may not smell my hadas, because it is muktzah for its mitzvah.

However, the Shulchan Aruch (Orach Chayim 653:1) rules that I should also avoid smelling my esrog on Sukkos. Why does the Shulchan Aruch prohibit something that the Gemara explicitly permits?

The answer to this question takes us to the other topic — when does one recite a bracha before smelling a fragrance? Although the Gemara explicitly permits smelling an esrog on Sukkos, the Gemara does not mention whether one recites a bracha before smelling it.

Indeed, the Rishonim dispute whether one is required to recite a bracha before smelling an esrog. Rabbeinu Simcha, one of the late baalei Tosafos, rules that one may not recite a bracha before smelling an esrog that is being used for the mitzvah on Sukkos, whereas the Ravyah, an early Ashkenazi posek, rules that one must recite a bracha. The later poskim conclude that this dispute is unresolved, and that, therefore, one may not smell an esrog during Sukkos, when reciting a bracha would be a question. This topic requires some explanation: Why should an esrog on Sukkos be different from an esrog any other time of the year?

FRAGRANCES THAT ARE NOT FOR THE PLEASURE OF SMELL

One recites a bracha only on a fragrance that is avida lereicha, literally, “made for fragrance” (Shulchan Aruch, Orach Chayim 217:2). In the words of the Chazon Ish (Orach Chayim 35:1), “Anything whose current purpose is not for aroma is not considered a fragrance” (regarding recitation of a bracha). Therefore, one does not recite a bracha before smelling a deodorizer, even if it has an extremely pleasant fragrance, since its purpose is not aroma, but to mask unpleasant odor. Similarly, smelling the tantalizing aroma of a food or food flavoring does not warrant a bracha, since its purpose is not enjoyment of their aroma, per se. (I have written several other articles germane to the brachos on fragrances, which are available on the RabbiKaganoff.com website; to find them, use the search word fragrance.) Furthermore, when the halacha rules that one is not required to recite a bracha, one is not permitted to recite the bracha, as doing so constitutes a bracha l’vatalah, a bracha recited in vain.

EXAMPLE:

When showing a house that is for sale, some people toast cinnamon in the oven or open essential oils and other fragrances around the house to make the house more appealing. Since the purpose of these fragrances is to give the house a pleasant aroma and not to entice people to smell or purchase the fragrance, one does not recite a bracha.

Based on the foregoing introduction, we can now explain the above-quoted dispute whether to recite a bracha before smelling an esrog on Sukkos. Rabbeinu Simcha contends that although one may smell an esrog on Sukkos, and it is not prohibited due to its being muktzah, this does not warrant making a bracha. The esrog on Sukkos is still primarily intended for the mitzvah, and not for fragrance; therefore, smelling it does not require a bracha. In Rabbeinu Simcha’s opinion, reciting a bracha in this case constitutes a bracha l’vatalah.

The Ravyah disagrees, maintaining that since it is permitted to smell an esrog, it is considered to be meant for fragrance, and requires one to recite a bracha before smelling it (Mordechai, Sukkah #751; Tur Orach Chayim 653).

This dispute places us in a predicament. The halacha is that one may not benefit from something in this world without first reciting a bracha, and if, indeed, one is required to recite a bracha before smelling an esrog, then one may not smell it without reciting a bracha (Brachos 35a; Hagahos Smaq 193:11). On the other hand, if one is not required to recite a bracha before smelling it, then one may not recite the bracha, and doing so involves reciting a bracha in vain, a bracha l’vatalah.

Since we are not in a position to resolve this dispute, the poskim contend that one should avoid smelling the esrog used for the mitzvah during Sukkos (Shulchan Aruch 653), even though there is no muktzah violation in smelling it. Furthermore, one may smell the esrog if he first recited a bracha on a different fragrant fruit.

ESROG ON SHABBOS

As I mentioned above, Rabbeinu Simcha contends that an esrog is not considered avida lereicha, meant for fragrance, and therefore one does not recite a bracha before smelling it. Does this halacha apply the entire week of Sukkos, or only when I pick up the esrog to fulfill the mitzvah? What if I smell the esrog on Shabbos, when there is no mitzvah to perform, or I pick it up on a day of Sukkos after I have already fulfilled the mitzvah? Do I recite a bracha before smelling it, according to his opinion?

Let us compare this shaylah to the following case:

Someone who enters a spice merchant’s store recites a bracha, because the owner wants customers to smell his wares so that they will purchase them (Berachos 53a). If these items are in his warehouse, where he is not soliciting customers, one does not recite a bracha (Magen Avraham 217:1).

Why does one recite a bracha on the spices in the store, but not on those that are in the warehouse? This is because the spices in the store are there to be smelled and enjoyed, and are therefore avida lereicha. However, the spices in the warehouse are not meant to be smelled – therefore, they are not avida lereicha. Note that we are discussing the same spices, and the only difference is where they are located.

PUTTING INTO YOUR HAND

Let’s assume you are back in the spice merchant’s warehouse or in a flavor factory, and you know that you do not make a bracha on the incredible fragrance that is wafting through the air. What happens if you approach some of the spices to take a pleasant whiff, or you pick up some of the spice in order to smell it? Do you recite a bracha?

The poskim dispute what to do in this case. The Mishnah Berurah (217:1) contends that whenever you do something to smell the fragrance, such as moving towards the source of the fragrance in order to smell it, picking it up, or putting some into your hand, you should recite a bracha. Any such act makes the fragrance avida lereicha.

However, the Chazon Ish disagrees, maintaining that if you will return the spice afterwards to the storage bin in the warehouse, it is not avida lereicha, and you do not recite a bracha (Chazon Ish, Orach Chayim 35:1). The Chazon Ish agrees that if the manufacturer has samples available that he wants people to smell and buy, one does recite a bracha on them, and he also agrees that if you remove some of the spices to smell and will not return them, you do recite a bracha.

SPICES IN THE KITCHEN

There is a common, practical difference in halacha between the approaches of these two Gedolim regarding kitchen spices. Suppose you want to enjoy the smell of the cinnamon or the oregano on your kitchen shelf. According to the Mishnah Berurah, if you remove a container from the shelf to smell it, you recite a bracha on the spice, even though you intend to return the spice to the shelf after smelling it, and it will eventually be added to food. (By the way, the poskim dispute which bracha one recites before smelling cinnamon. The accepted practice is to recite borei minei besamim.) However, according to the Chazon Ish, you do not recite a bracha on this spice, unless you no longer intend to cook with it. Someone who wants to avoid the dispute should sprinkle a little bit of spice into his hand and make a bracha on that. Since you are neither going to return this spice to the container nor cook with it, according to all opinions, one recites a bracha before smelling it.

Some poskim explain that this opinion of the Chazon Ish is the reason for the widespread minhag to set aside special besamim for havdalah on Motza’ei Shabbos (Shemiras Shabbos Kehilchasah, Vol. 2 pg. 262).

WHAT ABOUT MY ESROG ON SHABBOS?

A dispute similar to the one quoted above exists concerning smelling my esrog on Shabbos, or picking up the esrog to smell it after I have fulfilled the mitzvah for the day.

The Magen Avraham rules that I recite a bracha before smelling the esrog under these circumstances, even according to Rabbeinu Simcha. Therefore, in his opinion, one may pick up the esrog specifically to smell it, and one recites the bracha before smelling it.

However, the Taz implies that one may not smell the esrog anytime during Sukkos. According to the Chazon Ish’s analysis of the subject, one can explain the Taz’s approach as follows: Since the esrog is meant for the mitzvah, it is not considered avida lereicha that warrants a bracha, unless one permanently makes it into a fragrance. Thus, if an esrog became pasul, or for some other reason can no longer be used for the mitzvah, it will be called avida lereicha and warrant a bracha. Under any other circumstance, it remains a safek bracha, and one should not smell it until Yom Tov is over. One may recite a bracha and smell it on Shemini Atzeres or Simchas Torah, since it no longer serves any mitzvah purpose. Thus, it appears that the dispute between the Magen Avraham and the Taz is identical to the dispute between the Mishnah Berurah and the Chazon Ish.

WHICH BRACHA DO I RECITE ON AN ESROG?

Everyone agrees that one may smell an esrog that will no longer be used for the mitzvah, and that one must recite a bracha before smelling it. In such a case, which bracha do I recite?

Chazal established five different brachos that relate to scent, each for a different category of fragrance.

  1. Borei shemen areiv, “The Creator of pleasant oil,” is recited only on the fragrant oil extracted from the balsam tree (Mishnah Berurah 216:22). Because this tree was important and grew in Eretz Yisroel, Chazal established for it a special bracha (Rabbeinu Yonah, Brachos 43a).
  2. Hanosein rei’ach tov ba’peiros, “He who bestows pleasant fragrances in fruits” (Shulchan Aruch, Orach Chayim 216:2). We recite this bracha before smelling fragrant, edible fruits and other foods (Rama 216:14). Some poskim rule that the proper text for this bracha should be in past tense: Asher nasan rei’ach tov ba’peiros, “He who bestowed pleasant fragrances in fruits” (Mishnah Berurah 216:9). This is the bracha one recites before smelling an esrog.

Many poskim state that the custom today is to not make a bracha on smelling a fruit, unless it has a pronounced aroma (see Vezos Haberacha pg. 174). For this reason, one should be certain that the esrog one holds has a strong, pleasant fragrance before reciting a bracha. If one is uncertain, one may smell the esrog first to see that it is fragrant, and then, if it is fragrant, recite the bracha hanosein rei’ach tov ba’peiros and smell it again.

  1. Borei atzei besamim, “The Creator of fragrant wood (or trees).” One recites this bracha before smelling fragrant, woody plants and trees, or their leaves, flowers, wood, or oils. Hadasim are certainly in this category. Although we mentioned above that it is prohibited to smell a hadas that is being used for the mitzvah on Sukkos, hadasim that one does not intend to use for the mitzvah may be smelled on Sukkos, and he should recite this bracha before smelling them.

Incidentally, the correct bracha to recite before smelling citrus blossoms or flowers is Borei atzei besamim, since the flower is not edible.

  1. Borei isvei besamim, “The Creator of fragrant grasses.” We recite this bracha before smelling non-woody plants, their parts or extracts. Before smelling a fragrant hyacinth, narcissus, or lily one recites this bracha. The custom among Sefardim is to recite this bracha before smelling mint, although, for reasons beyond the scope of this article, Ashkenazim recite borei minei besamim before smelling mint.
  2. Borei minei besamim, “The Creator of different types of fragrances.” This is the “catch-all” bracha for all fragrances, the equivalent of reciting a shehakol on food. Sometimes, it is the preferred bracha, and sometimes it is the bracha used to resolve uncertainties. Although I have not seen poskim discuss this case, it would seem to be permitted to recite a bracha on an item whose bracha is borei minei besamim and have in mind to include the esrog and then be able to smell the esrog. This would provide a method whereby one could smell one’s esrog on Yom Tov, according to all opinions.

Question: Why did Chazal create a unique bracha prior to smelling aromatic fruits?

Answer: Whenever one benefits from this world, one must recite a bracha. Thus, Chazal instituted brachos that are appropriate for fragrances. However, the other brachos on fragrance are not appropriate for smelling fragrant foods, since they praise Hashem for creating fragrances, whereas fruits are not usually described as fragrances, but as foods that are fragrant. Therefore, Chazal needed to establish a special bracha for aromatic fruits (see Beis Yosef, Orach Chayim end of Chapter 297).

Conclusion

The Gemara (Berachos 43b) teaches, “How do we know that one must recite a bracha on a fragrance? Because the pasuk (Tehillim 150:6) says, ‘Every neshamah praises Hashem,’ – What exists in the world that the soul benefits from, but not the body? Only fragrance.”

Because fragrance provides some physical pleasure, but no nutritional benefit, the sense of smell represents an interface between the spiritual and the physical. Similarly, we find that we offer korbanos as rei’ach nicho’ach, a fragrance demonstrating one’s desire to be close to Hashem. We should always take advantage of the opportunity to smell fragrant items as a steppingstone towards greater mitzvah observance and spirituality.

 

Blessings and Guardrails

Mitzvas maakeh is mentioned in this week’s parsha.

Blessings and Guardrails

Question #1: Who makes the brocha?

“If someone performs a mitzvah as my agent, can I still recite a brocha on the mitzvah?”

Question #2: Am I doing the mitzvah?

“Do I fulfill the mitzvah of building a maakeh if I hire a non-Jew to do it for me?”

Question #3: When do I bless?

“If I am performing a mitzvah that will take a long time to fulfill, when do I recite the brocha?”

Introduction:

Reb Gavriel*, a talmid chacham whom I know, is having his house remodeled, including adapting a roof area for use, which will require the assembly of a maakeh, a fence, wall or railing high enough and strong enough to prevent someone from falling (see Devorim 22:8). He asked me the following: “I will now have the first opportunity of my life to fulfill the mitzvah min hatorah of building a maakeh. My question is: The construction workers are not Jewish. Can I recite a brocha on performing this mitzvah, when gentiles are doing the work? And, if I recite a brocha, when do I recite it, since this construction will take several weeks?”

Let me explain Gavriel’s excellent questions. Prior to performing a mitzvas aseh, a positive mitzvah, we recite a brocha thanking Hashem for the opportunity to fulfill His commandments. These brochos are what we call birchos hamitzvah. They begin with the words Boruch Ata Hashem Elokeinu Melech ha’olam asher kideshanu bemitzvosav vetzivanu and conclude with the words appropriate to the specific mitzvah. According to the majority of halachic authorities, one recites a brocha on constructing a maakeh, since by constructing this maakeh one fulfills a positive mitzvah of the Torah (Sedei Chemed, Volume 5, page 250, provides analysis of this point). The rishonim cite several slightly variant texts detailing how one concludes the brocha recited for fulfilling this mitzvah. (See commentaries She’eilas Shalom and Ha’eimek Hasheilah to She’iltos, Eikev #145, who discuss what is the proper text of the brocha.) I believe that the accepted Ashkenazic practice is to complete the brocha with the words: Al mitzvas maakeh.

In Reb Gavriel’s case, there are three questions:

  1. Can I recite a brocha when I am not performing the mitzvah myself?
  2. Do I fulfill a mitzvah when it is performed by hirees who are not Jewish?
  3. At what point in the construction should I recite the brocha?

Who recites the brocha?

Reuven asks Shimon to search his (Reuven’s) house for chometz. Can Reuven recite the brocha of al bedikas chometz on Shimon’s search? (We should note that, in general, someone obligated to perform a mitzvah should do the mitzvah himself, rather than assign it to someone else, a principle called mitzvah bo yoseir mibeshelucho, it is a bigger mitzvah to perform a mitzvah yourself than via proxy [Kiddushin 41a].)

On the one hand, Reuven is fulfilling the mitzvah, not Shimon. On the other hand, Shimon is the one who is actually performing the mitzvah.

The Magen Avraham states that the agent doing the act of the mitzvah can recite the brocha (432:6), but he also implies that should Reuven want to recite the brocha, he may do so, even if he himself did not participate at all in the act of performing the mitzvah (432:5). They should not both recite the brocha – for one of them, this would constitute a brocha levatalah, a brocha recited in vain.

Shelichus

The Torah teaches a principle that a person can perform a mitzvah, create a transaction, or discharge a legal requirement by having an agent act on his behalf, a concept called shelichus. Because of this rule, a husband can appoint someone to write a get on his behalf, or deliver a get to his wife. Similarly, I can appoint someone to separate challah from dough that I have prepared, or appoint someone to be my agent to carry out a transaction, such as having a rav sell my chometz.

Ein shelichus lenachri

Although I can appoint a proxy to separate terumos or challah for me or to carry out a transaction on my behalf, that agent must be Jewish. The Torah did not extend the concept of agency to non-Jews, either to allow a gentile to function as surrogate for someone else or to have a gentile appoint a surrogate on his own behalf. A result of this halachah is that a Jew cannot appoint a gentile to separate challah. Thus, a Jewish-owned bakery that has non-Jewish employees mixing dough must make provisions to have a Jew take challah. If a gentile did the act of separating challah, no mitzvah was performed.

According to this reason, it would seem that if Reb Gavriel has non-Jewish workers building his maakeh, the mitzvah was not fulfilled. He is not doing the construction himself, and the people he hired are ineligible to be his agents. It is true that there is no longer any danger of having an unfenced roof, and, therefore, one is not in violation of allowing a safety hazard to exist, lo sasim damim beveisecha (Devorim 22:8). Yet, it would seem that the positive mitzvah to build a railing was technically not observed, since it was constructed in a way that no one fulfilled the mitzvah.

Enter the Machaneh Efrayim

Yad po’el keyad baal habayis

  1. The Gemara teaches a principle; yad po’el keyad baal habayis, literally, the “hand” of the worker is treated as the hand of the employer (Bava Metzia 10a). If I hire someone to perform general work – regardless of what he is assigned to do — and he finds an unowned object in the course of his work, the employer becomes the owner of the object. How did the employer gain ownership of the item, when it was the employee who found it and picked it up? The Gemara explains that since the employer hired the worker to do whatever needs to be done during the period of his service, the employer owns even the worker’s ability to take possession of items, which is called a yad, a hand, in halachic jargon.

The Machaneh Efrayim extends the principle of yad po’el keyad baal habayis to Reb Gavriel’s situation. When I hire someone to be my general worker, it is considered that I built the railing myself. I have therefore fulfilled the mitzvah and may recite the brocha. This principle does not apply when I hire a worker for a specific job (see Aruch Hashulchan, Choshen Mishpat 427:3).

There are other ramifications of this principle of the Machaneh Efrayim. Although there is an obligation to separate terumos and maasros from produce growing in a Jew’s field in Eretz Yisroel or in the lands nearby, one is not required to separate them until the harvesting process is complete. At the time of the Mishnah/Gemara, this entailed leveling off the pile of grain or other produce, after all had been harvested. The Machaneh Efrayim contends that, even if this leveling was performed by a gentile employee or hiree, the owner becomes obligated to separate terumos and maasros. Despite the fact that a non-Jew cannot function as a proxy, the processing he performs as an employee obligates the owner to separate maasros.

Construction is different

  1. The Machaneh Efrayim presents a second line of reasoning why someone who hired a gentile to build a railing has fulfilled the mitzvah. The rule that a gentile cannot be my agent is only when something requires agency to be effective, such as the separation of challah, the delivery of a get, or creating a transaction. In each of these cases, a change of status or ownership is effected by someone’s intent. Without intent on the part of the person creating the change or transaction, nothing has happened – the dough  that was separated did not become challah, the woman did not become divorced, the chometz was not sold. In these instances, since the Torah did not create a concept of shelichus for gentiles; if I appointed someone non-Jewish to separate challah or to carry out agency, nothing has transpired.

However, contends the Machaneh Efrayim, when a physical act is being done, such as the construction of a railing, we are not dealing with a legal effect, but an on-the-ground, physical result. This is not a function of the laws of shelichus, but a practical matter. Since the railing now exists, I have fulfilled the mitzvah and can recite the brocha, regardless who actually constructed it.

Railing about the railing

Notwithstanding that the Machaneh Efrayim concludes that Reb Gavriel could recite a brocha when his gentile workers build the maakeh, many later authorities dispute either or both of his reasons (Shaar Hamelech, Terumos 1:11; Shu’t Shivas Tziyon #53; Nesivos Hamishpat, Chapter 188; Minchas Chinuch, Mitzvah #546; Shu’t Sha’ul Umeishiv, Volume 1, part 2 #110; Ulam Hamishpat, Chapter 188; Shu’t Birchas Retzei  #75; Sedei Chemed, Volume 5, pages 249-250). Regarding his first approach, that, because of the concept of yad po’el keyad baal habayis, it is considered that the employer built the railing himself, there are two different reasons to refute his position. Firstly, there is no evidence that the halachic concept yad po’el keyad baal habayis applies to non-Jewish employees. All the places in which the Gemara applies this rule involve Jewish workers, and there are valid reasons why one should not be able to compare the two.

Furthermore, even if yad po’el keyad baal habayis applies to gentile workers, there is a big jump in logic to apply this principle to the construction of a railing. If, in the course of his day’s work, an employee acquires something on behalf of the employer’s business, one could argue that the employer made the transaction, since he owns the employee’s yad.  However, how does the act of the gentile employee, such as constructing a railing, become the act of the Jewish employer, in such a way that he did the act of the mitzvah himself and can therefore recite a brocha? A mitzvah must be performed by someone who can be commanded to fulfill this mitzvah. The action performed by the gentile does not become the act of the employer because of yad po’el keyad baal habayis.

To demonstrate the difficulty with the Machaneh Efrayim’s approach, some authorities contend that, according to the Machaneh Efrayim, if a Jew instructed his gentile employee to plow using a donkey and an ox, the Jew will be liable for malkus, lashes, for violating the Torah violation of having them work together, since his gentile employee’s action is considered as if he did it himself (Shu’t Shivas Tziyon #53). Although it is prohibited to hire a gentile to do this, it is highly surprising to assume that the Jew should be liable for malkus in such a situation.

Is this chometz she’avar alav hapesach?

The Machaneh Efrayim’s principle created a problem for a community in a very different case. The local branch of a Jewish-owned business was managed completely by gentiles. The question was whether the chometz that the non-Jewish employees of the local branch purchased on behalf of the business before Pesach becomes prohibited because of chometz she’avar alav hapesach, chometz that was owned by a Jew in the course of the holiday. The questioner, Rav Yaakov Mendel Friedman, the rav of Nadvorna, wanted to permit the chometz on the basis that, since there is no agency of non-Jews, the chometz is halachically considered to have been owned by gentiles over Pesach. However, he noted that, according to the Machaneh Efrayim, since the gentiles are the employees of the Jewish owners, the chometz is deemed to have been owned by Jews over Pesach, and it is therefore prohibited. He sent the question to Rav Tzvi Hirsch Orenstein, a respected nineteenth century posek in Lithuania and Poland. (During his lifetime, he served successively as rav in Brisk, Reisha and Lvov.) Rav Orenstein ruled that accepted halachah does not follow the opinion of the Machaneh Efrayim (Shu’t Birchas Retzei #75).

Other railings

The second reason presented by the Machaneh Efrayim why someone could recite a brocha upon the assembly of a railing built by a non-Jew was that the owner fulfills the mitzvah of building a maakeh, no matter how the railing actually became constructed. Notwithstanding the Machaneh Efrayim’s contentions, others dispute his conclusion that this is considered that the Jew performed the mitzvah.

It appears that most authorities reject the position of the Machaneh Efrayim and contend that one should not recite a brocha, if a gentile built the railing. Those who reject the Machaneh Efrayim’s approach would require that a Jew participate in the construction of the railing, in order to be able to recite the brocha. However, one major authority rules that Reb Gavriel should recite a brocha on the assembly of the railing, regardless of whether it was assembled by Jews or by gentiles, and even if he did not participate at all (Aruch Hashulchan, Choshen Mishpat 427:3).

When do I recite a brocha?

At this point, let us examine the third of our opening questions:

“If I am performing a mitzvah that will take a long time to fulfill, when do I recite the brocha?” This exact question can be asked regarding the assembly of a railing, and we noted before that Reb Gavriel, indeed, asked it.

Allow me to provide some background. In general, one recites a brocha immediately prior to beginning the performance of a mitzvah or immediately prior to eating a food. The Gemara (Pesachim 119b) calls this oveir la’asiyasan. According to this, one should assume that one would recite the brocha on the railing immediately before one performs the mitzvah. However, the question, here, is that the mitzvah takes a long time to perform. It can also happen that someone may encounter a difficulty in the middle of the job that makes it impossible for him to complete the mitzvah. Because of these concerns, when should one recite the brocha for performing the mitzvah?

This question is raised by the Chasam Sofer (Shu’t Chasam Sofer, Orach Chayim 52), who concludes that one should recite the brocha immediately prior to completing the maakeh. In his opinion, since the railing does not provide adequate protection until it is complete, the act of the mitzvah is the last hammer blow that makes it into an effective railing.

However, a much earlier authority than the Chasam Sofer holds differently. The Baal Ha’itur (Hilchos Tzitzis, Shaar 3, Cheilek 2, page 152) rules that one recites the brocha at the beginning of the assembly of the railing, even though its manufacture takes time. He compares this to the brocha of al bi’ur chometz, which we recite at the beginning of the search, knowing that it may involve interruptions and considerable time until the mitzvah is completed, which is when one has finished burning the chometz.

A third approach

I found yet a third approach to when one should recite the brocha on assembling a railing, because of an interesting reasoning. Some late authorities suggest that if the owner is unable to construct the railing himself, he should wait to recite the brocha until the railing is in place, out of concern that the employee may not complete the job, and the brocha that he recited for the mitzvah would be in vain (see Sedei Chemed).

In conclusion

What should Reb Gavriel do? I found some late authorities who suggest that he should try to assist the workers at a critical time in the manufacture of the railing, in which case, he could recite the brocha, because he took an active part in its assembly (Sedei Chemed, quoting Nediv Leiv). According to the Chasam Sofer, he should help out at the last stage of the construction of the railing, which is when the mitzvah is being properly fulfilled. According to the Baal Ha’itur, he should help out at the beginning of the construction of the railing, so as to recite the brocha before the mitzvah is begun.

Just as we must make sure that we build a guardrail in a way that it will properly prevent physical injury, so must we also examine the laws governing how and when we thank Hashem for the opportunity to observe his mitzvos. And just as we hire a professional to ascertain that our guardrail does its job well, so should we strive to recite our brochos and prayers with careful attention to detail, performing them in the way Hashem wants.

* I was asked this exact question. The name was changed to protect the individual’s privacy.

Can a Sheitel be Prohibited Because of Avodah Zarah?

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

Can a Sheitel be Prohibited Because of Avodah Zarah?

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

Introduction to the Laws of Avodah Zarah

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

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

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

Takroves Avodah Zarah – An Item Used to Worship an Idol

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

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

Mitzvos Pertaining to Avodah Zarah

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

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

Some Background Facts in the Contemporary Shaylah About Indian Hair

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

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

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

The Earlier Ruling

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

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

What changed?

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

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

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

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

Bitul — Nullifying the Prohibited Hair

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

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

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

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

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

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

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

Color of Sheitel

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

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