May I Pass Up This Mitzvah?

Question #1: Inexperienced Father

Abba Chodosh asks me the following question: “Before we relocated for a particular job, I had trained as a mohel. Since our children born since that time were daughters, I never ended up performing a bris without the supervision of an experienced mohel. Now that my son was born, am I required to perform the bris myself?”

Question #2 Successful Mezuzos

Baal Eisektov asks: “Thank G-d, we are inaugurating a new branch of our business. Common practice is to give a rav the honor of installing the mezuzos. But shouldn’t I be doing that myself, because of the principle of mitzvah bo yoseir mibishlucho?”

Question #3 Sharing the Challah

Leah asks me: “Recently, I participated in a tour of a large bakery, and the mashgiach offered me to take challah there, which I did. Someone afterwards told me that the mashgiach should not have been so free in giving away his mitzvah. Did he, indeed, do something wrong?”

Answer: May I delegate?

One of the most basic rules of business and life management is to learn how to entrust responsibility and tasks to others. Does this concept extend to the observance of mitzvos? If I have a mitzvah to carry out, am I permitted to assign it to someone else?

All of the questions asked above are contingent on the same basic underlying issue: Under what circumstances may I hand over the performance of a mitzvah that I could do myself?

The basics

The Gemara rules that one fulfills a mitzvah when it is performed by an agent, although it is preferable to do it himself (Kiddushin 41a). This is called mitzvah bo yoseir mibishlucho, it is better to perform a mitzvah yourself, rather than have someone else do it for you. This rule is not needed in cases of mitzvah shebegufo, where the mitzvah is incumbent on a person to do with and upon his own body, and a sheliach cannot be made at all. An example of the latter case is the wearing of tefillin: I cannot make someone an agent for me by asking that he don tefillin in my stead, because the mitzvah is that the tefillin be placed on my arm and my head.

Anything done wrong?

Our first consideration is: Granted that, under normal circumstances, a person should perform the mitzvah himself, has he violated anything by requesting that an agent do it for him? The Gemara implies that a person (a meshalei’ach) delegating someone else to perform a mitzvah for him has done nothing wrong; he has, however, forfeited an opportunity to perform a mitzvah.

However, other factors may have an impact on the final ruling. Let us consider, for a moment, the situation above, where the father has been trained as a mohel, but is lacking extensive experience. What if his wife, the baby’s mother, prefers that he not perform the bris, and that they opt to use an experienced mohel instead? Does Abba’s shalom bayis become a factor in whether or not he should perform the bris? If he is not violating anything by appointing an agent, then I would personally rule that his wife’s serenity is the most important factor. However, this may not be true if it is prohibited to assign the mitzvah to someone else.

Are there circumstances in which it is fine to have the agent perform a mitzvah for me? What are the halachic principles upon which I can base my decision?

Kisuy hadam practices

Much of the halachic literature discussing these questions originates with the mitzvah of kisuy hadam. The Gemara teaches that the mitzvah of kisuy hadam, the Torah’s requirement that one cover the blood with earth after shechting poultry or chayos, such as deer and antelope is incumbent upon the shocheit. According to the rule of mitzvah bo yoseir mibishlucho, the shocheit should cover the blood himself. Yet, it was, and is, common practice that shochatim honor someone else with fulfilling the mitzvah. Is this permitted? Let us see if we can find Talmudic precedents for the practice.

Kohen application

The Gemara (Bava Kamma 110a) teaches that an elderly or ill kohen for whom it is difficult to offer a korban himself may bring his korban to the Beis Hamikdash and ask a different kohen to offer it in his stead. Notwithstanding that it is a mitzvah of the elderly kohen, he may delegate the performance of the mitzvah, since it is difficult for him. Thus, we see that, at least under certain circumstances, one does not violate halachah by asking someone else to perform a mitzvah in one’s place. The Tevuos Shor (28:14) notes that we see from this Talmudic passage that there are situations in which a person is able to perform a mitzvah himself, yet he has the option of passing the opportunity to someone else.

Yibum application

Here is another Talmudic precedent that permits someone required to observe a mitzvah to defer it to someone else. One of the Torah’s mitzvos, yibum, is that a man should marry his late brother’s widow, if his brother left no descendents. The Mishnah teaches that the mitzvah devolves specifically upon the oldest surviving brother. If he chooses not to fulfill the mitzvah, then and only then does the mitzvah pass to his younger brother.

The Gemara (Yevamos 44a) discusses a situation in which there are at least seven brothers in a family, of whom five are married without any children. The five married brothers all die, thereby creating five mitzvos of yibum for the oldest brother to perform. The Gemara’s conclusion is that if the oldest brother wants to marry as many as four of the widows, he may, clearly noting that he is not required to do so, even should he have the financial and physical ability to provide the needs of all four widows. The Gemara advises against his marrying more than four, out of concern that he will not be able to provide his new wives with sufficient attention. (We can definitely conclude that marital expectations have changed since the time of the Gemara.)

The Tevuos Shor (28:14) notes that we see from this Talmudic passage that there are situations in which a person could perform a mitzvah himself, yet he has the option of passing the opportunity to someone else. Based on this and other Talmudic sources, the Tevuos Shor justifies the practice of shochatim honoring someone else with the mitzvah of kisuy hadam.

This ruling of the Tevuos Shor can be used to explain the practice that forms the basis of Mr. Eisektov’s question. Why is there a common practice of honoring a respected rav with installing mezuzos at a new business? The answer is that, since the owners are doing it to honor the rav, they view this consideration as a greater mitzvah than performing the mitzvah themselves.

However, other authorities disagree with the Tevuos Shor’s approach, contending that providing someone else with honor is not sufficient reason to justify not fulfilling the mitzvah oneself (Binas Adam #7). Still others are of the opinion that the opposite of the Tevuos Shor‘s approach is true: they posit that asking someone to act as one’s agent is permitted, since one still fulfills the mitzvah, whereas honoring someone with the mitzvah without making him an agent is forbidden (Peleisi 28:3).

Sandek application

Here is another situation in which we see how a respected early authority ruled. “The father of a newborn boy who does not want to be the sandek himself, because he desires to have harmonious family relationships and demonstrate his respect, should give the honor to his own father, the baby’s paternal grandfather. However, if the baby’s paternal grandfather prefers that his own father (the baby’s great-grandfather) be honored, then he may give the honor to the great-grandfather, and this is the prevalent custom.” (Leket Yosher) The time-honored role of the sandek, the one who holds the baby during a bris, is, in itself, a mitzvah. By holding the baby, the sandek assists the mohel doing the mitzvah. Since the mitzvah of bris milah is the father’s, logic suggests that a father who is not a mohel should be the sandek. However, since he does not want anyone to be upset and also wants to fulfill his own mitzvah of respecting his parents, common practice is that the father honors someone else with being sandek.

Those who permit honoring someone else with the mitzvah of kisuy hadam would no doubt rally support to their approach from the ruling of the Leket Yosher. Those who feel that the shocheit should not honor someone else with the mitzvah of kisuy hadam will presumably contend that the sandek is not actually fulfilling a mitzvah that is required of him, and that is why its performance can be transferred to someone else. On the other hand, since kisuy hadam is incumbent on the shocheit, they would contend that he may not honor someone else with this mitzvah.

Passing on a bris

At this point, I would like to discuss how these rules affect the laws of bris milah, which was the first question I mentioned above (and the reason why I chose to discuss the topic the week of Parshas Lech Lecha). The Or Zarua, a rishon, writes that it is forbidden for a father who is a qualified mohel to have someone else perform his son’s bris milah (Hilchos Milah #107). (The Or Zarua, a native of what is today the Czech Republic, traveled to attend the yeshivos of the Baalei Tosafos in Northern France. He subsequently became the rav of Vienna, where he apparently opened a yeshivah. The Maharam of Rothenberg was one of the Or Zarua’s disciples.) According to the obvious reading of the Or Zarua, we already have enough information to answer Abba Chodosh’s question above: Abba had once trained to be a mohel, but never practiced. Now that he has his first son, is he required to perform the bris himself, or may he have a more experienced mohel do it? Assuming that Abba can still perform a bris safely, the Or Zarua would seem to rule that he is required to be the mohel.

However, this answer is not obvious. Firstly, the Rema (Darkei Moshe, Yoreh Deah 264:1) wonders why the Or Zarua rules that it is prohibited for the mohel to have an agent perform the mitzvah for him. We fully understand that it is not preferred – the Gemara says that it is better to perform a mitzvah oneself, rather than have it performed by someone else. However, the Or Zarua does not say simply that it is preferred that the father perform the mitzvah himself – the Or Zarua prohibits having someone else perform the mitzvah!

In his comments on the Shulchan Aruch, the Rema omits mention of the Or Zarua’s ruling, a factor noted by some authorities as proof that the Rema rejected the position of the Or Zarua (Tevuos Shor 28:14). However, the Shach (Choshen Mishpat 382:4) independently reaches the same conclusion as the Or Zarua, based on his analysis of a statement of the Rosh. The Shach’s comments require an introduction.

A mitzvah snatcher

The Gemara rules that someone who performs a mitzvah that another person is required to do and is planning to perform is charged a fine of ten gold coins for stealing someone else’s mitzvah (Bava Kamma 91b; Chullin 87a). One of the Gemara’s cases is as follows: A shocheit slaughtered a bird, and then, before he had a chance to fulfill the mitzvah of covering the blood, someone else covered it, thus snatching the mitzvah. The shocheit brought the offending party to a din Torah before Rabban Gamliel, who fined the mitzvah snatcher ten gold coins. Rashi (Chullin 87a s.v. Litein) explains that the fine is for depriving someone of the reward he should have received for the mitzvah.

When citing this Gemara, the Rosh (Chullin 6:8) recounts the following story: The father of a newborn asked a mohel to perform the bris, but a different mohel performed it without getting permission. Subsequently, the first mohel sued the second mohel in Rabbeinu Tam’s beis din for stealing the mitzvah. Rabbeinu Tam ruled that, although the interloping mohel’s act was despicable, for a variety of technical reasons not germane to our topic, there are no grounds to fine the mohel for stealing the bris.

The Rosh agrees with the ruling, but for a reason that Rabbeinu Tam did not mention: Although the father told the mohel to perform the bris, the mohel does not thereby become the “owner” of the mitzvah, unlike the shocheit in Rabban Gamliel’s case, who was already obligated in the mitzvah.

The Rosh closes his discussion with the following words: “However, if the father does not want to perform the milah, all Jews are obligated to perform the bris. The words that the father spoke to the mohel did not have sufficient weight to transfer ownership of this mitzvah to him, thus making it impossible to fine a second person who performed the mitzvah, albeit without permission.” Based on this Rosh, the Rema (Choshen Mishpat 382:1) concludes that someone who performed the bris on a child whose father was intending to carry it out himself must pay the father ten gold coins, but if the father asked a mohel to perform the bris, then the interloping mohel is absolved of any fine.

Can the father make an agent?

The following question is raised relative to the comments of the Rosh: We see from the Rosh that the interloping mohel who takes the mitzvah away from the father is fined, whereas if he takes the mitzvah from a different mohel, he is not. But why is this so? In the latter instance, he also “stole” the mitzvah from the father, since the first mohel was the father’s agent, and the interloping mohel was not? Thus, the father would have fulfilled the mitzvah through his agent had the first mohel performed the bris, but he was deprived of the mitzvah by the second mohel (Ketzos Hachoshen 382:2).

There are a few ways to resolve this question. The Ketzos Hachoshen concludes that when the Torah gave the father a mitzvah to circumcise his child, the Torah was not simply asking him to make sure that his son has a bris, but was requiring the father to perform the bris himself. The father cannot make a mohel an agent to circumcise his son, just as one cannot make an agent to don tefillin. Neither of these mitzvos can be performed through agency. Therefore, when the father asks a mohel to perform the bris for him, he is demonstrating that he does not intend to perform this mitzvah himself, and the second mohel did not steal it from him. This appears to be the way the Shach (Choshen Mishpat 382:4) understood the Rosh also, and for this reason he writes: “We can demonstrate from the words of this Rosh that a father who is a mohel is not permitted to give the mitzvah to someone else… I saw many men who are capable of performing the bris themselves who honor others with the mitzvah. In my opinion, they thereby are abrogating the important mitzvah of milah. The local beis din should take action to stop this.”

Everyone is an agent

However, there is an alternative way to explain the Rosh, which reaches a different conclusion. The Mishneh Lamelech (Bechoros end of 4:1; see also Terumas Hadeshen #188) contends that once someone revealed that he does not want to do a mitzvah himself, anyone who performs it is his agent. Therefore, when a father appoints someone to perform his son’s bris, any Jew who properly performs the bris milah is now acting as the father’s agent. The second mohel did not deprive the father of any mitzvah.

According to the second approach, no matter who performs the bris, the father has fulfilled the mitzvah, and he is not in violation for appointing an agent. However, if this is true, why does the Or Zarua prohibit a father from appointing someone to circumcise his son? The Tevuos Shor explains that there is a difference between honoring someone else to perform the mitzvah that one would prefer to do, which is permitted, and having someone else perform a mitzvah because one is not interested to perform it. In the latter case, failure to fulfill the mitzvah oneself violates mitzvah bo yoseir mibishlucho. The Tevuos Shor thus concludes that one may appoint someone else to do the milah. He also concludes that it is permitted for a shocheit to honor someone else with performing kisuy hadam. As I mentioned above, there are other authorities who disagree with this conclusion.

Conclusion:

The following anecdote about Rav Pam demonstrates his observing the principle of mitzvah bo yoseir mibishlucho. Someone offered to mail a letter for him, but Rav Pam told him that he preferred to mail the letter himself, since it was a donation to tzedakah. Since mailing the letter is part of the mitzvah, one should do it himself, because of mitzvah bo yoseir mibishlucho.

 

Found Money – A Drama in Real Life

Parshas Ki Seitzei includes the mitzvah of hashavas aveidah. This article was published previously in my book From Buffalo Burgers to Monetary Mysteries. Should you be interested in purchasing the book, you may do so via the website, RabbiKaganoff.com, or by sending me an e-mail note.

Hershel calls me one day, somewhat agitated and very excited, with the following shaylah:

“While making an unusual household repair, I discovered a wad of hundred-dollar bills hidden in a secret place,” he begins. The questions now come tumbling out. “I know this is not money I ever put aside. How do I determine who the owner is? May I trust any previous resident of the house who claims that the money is his? Do I need to be concerned that the money was used for illegal activity? What do I do if I can’t find the owner?” And then finally, with a hopeful tone in his voice, “May I borrow the money while I am trying to locate the owner? We are behind on the mortgage, and it would be really helpful!”

Before answering Hershel’s questions, we need to clarify the Torah’s rules for returning lost objects:

BASIC HASHAVAS AVEIDAH RULES

As we are all aware, there is a mitzvah to return a lost object to its owner (Devorim 22:1-3; Shemos 23:4; Bava Metzia 26b). There are actually two different mitzvos, a prohibition against ignoring the lost object and a positive mitzvah to return it. Someone who retrieves the lost object and successfully returns it fulfills both mitzvos.

There are several questions we must answer when confronted with a hashavas aveidah situation. Among them are:

  1. Where did you find the item? Did you find it in a place where there are many people who do not observe the laws of hashavas aveidah, in which case the owner would assume that the finder would probably not return it? Or perhaps you found it in a shul or other place where the people passing through observe the halachos of hashavas aveidah.
  2. Is it an object that the owner probably already knows that he lost, such as large amounts of money, or is it something that he probably does not realize he lost, such as a pen or small change?
  3. Does the item have an identifying marking, called a siman, or not?
  4. Was the item placed intentionally, or does it appear to have been dropped?

YIUSH

An important principle governing the laws of lost objects is the concept called yiush, which means that the owner does not expect to retrieve the lost item. Once the owner has given up hope of getting the object back, it is halachically considered that he has relinquished possession (Chinuch, Mitzvah 538; Shulchan Aruch Choshen Mishpat 262:5). At this point, there is no requirement to return the lost item, and one certainly does not need to try to locate the owner. Nevertheless, it is still a mitzvah lifnim mishuras hadin, beyond the requirements of halacha, to return the lost object (Bava Metzia 24b).

EXAMPLE: If a driver observed something blow out of his car window and did not return for it, we may assume that the owner was me’ya’eish (gave up hope of retrieving it).

We now understand the basis of the first question we posed above: Was the item found in a place where the owner would assume that it will not be returned, such as a shopping mall, or in a place where it might be returned, such as a shul?

Based on what we have explained, there is no halachic requirement to return an item that was lost in a mall or other place frequented by people who do not observe hashavas aveidah. The finder may assume that the owner gave up hope of having the item returned, even if it has a siman. However, it is a mitzvah lifnim mishuras hadin to return the item.

Many poskim contend that there is no halachic requirement to return an item that is used by a child, such as a toy or child’s garment. Since adults know that children lose things all the time, these items are categorized as aveidah mi’daas, items that the owner knows may be lost since he gave them to someone who is not halachically responsible (see Bava Basra 87b; Mishpetei Torah III pg. 44). Therefore, when a parent gives a child these items he is not surprised when they are lost—it is an assumption that they will periodically lose their clothes, toys, and school supplies.

This halacha does not apply to an item that might be used by a child over bar- or bas-mitzvah, since they are halachically responsible.

ITEMS THAT THE OWNER DOES NOT KNOW HE LOST

Until now we have been discussing items that the owner knows that he lost. What is the halacha concerning items that the owner does not yet realize that he has lost?

The Gemara discusses the rule governing yiush shelo midaas (lit., giving up hope without knowledge), which refers to items that someone will give up hope of retrieving as soon as he realizes he lost them; however, he does not yet know that he has lost them. Are these items already considered ownerless? This question is probably the most famous dispute between the two great Talmudic scholars Abaye and Rava, and it is often taught as an introduction to didactic Gemara study.

The Gemara concludes that yiush shelo midaas is not valid yiush until the owner realizes his loss. This means that, although the owner will eventually give up hope of retrieving the item, until he realizes his loss, the item is still his property and someone else may not take possession of it.

How does the finder know if the owner has realized his loss? In general, this depends on the item. Someone who finds a large item that the owner was probably carrying himself may assume that the owner has already realized his loss by the time it was found. Similarly, if you found a large quantity of money on the street, you can assume that the owner is already aware of his loss since one tends to check one’s pockets frequently when carrying large sums of money. Therefore, we assume that the owner realized his loss by the time the finder found it. It is therefore permitted for the finder to keep the item.

On the other hand, if one finds an item that might go unnoticed for a while, such as small change, one should assume that the owner may not yet know of his loss and one should not assume that the finder can consider it his.

WHAT IS A SIMAN?

One of the distinctions I mentioned above was between items that have an identifying marking, called a siman, and those that do not. What is a siman and why is it so significant to the halachos of lost objects?

Someone who lost an item in a shul or similar place where most of the people are halacha abiding would assume that people would try to return the item. As we will explain shortly, to return a lost item, it is important that the item have a siman that the owner can use to identify it. A siman may be a name tag or an unusual marking or blemish on the object – anything that the owner would know about but that someone else probably would not.

MUST IT BE A PHYSICAL SIMAN?

An item placed in an unusual way or in an unusual location also has a valid siman – someone who knows this information would be demonstrating that he or she is the item’s owner. For example, although money does not usually have a siman, coins placed in a pile or in an unusual location have a valid siman (see Bava Metzia 23b).

The number of bills involved would also be a valid siman. Thus, the number of bills in a wad of dropped bills is a valid siman (Bava Metzia 23b).

Combining the rules that we have learned we reach the following conclusion:

Someone who finds a lost item in a shul or other place where the owner would assume that people observe hashavas aveidah should see if the lost item has a siman. If it does, then the owner will assume that he can still retrieve his lost item, and the finder is required to notify people that he found such an item.

In the days of Chazal there were different methods utilized for this notification. A contemporary method is to hang up a sign on a bulletin board near where the item was found or to bring the item to a functioning “lost and found” depot.

When finding a lost object that has a siman, one should not announce it in a way that gives away its siman. Thus, if one found a watch in shul, one should announce (on the sign or bulletin) that he found a watch and leave it for the owner to identify the item by its defining characteristics (Bava Metzia 28b).

AN ITEM THAT WAS PLACED INTENTIONALLY

If the item appears to have been placed and forgotten, rather than dropped, one should leave the item where it is, since the owner will probably try to retrace his steps to find it.

If the item was left in a very secure place, one should leave the item there, since it will not disappear (Shulchan Aruch Choshen Mishpat 260:1). Thus in Hershel’s case, if the owner does not surface and cannot be located, the money should be left in its place and not touched, and certainly not borrowed, until the owner returns for it. In this instance, even if Hershel removed it from its place he should put it back since he knows that the owner did not return to look for it in the interim (Rama 260:10 and Sma 48).

However, if the item was left in a place where it will be thrown away, one should try to return it to its owner (Bava Metzia 25b).

WHEN DOES THE FINDER NOT RETURN IT?

One should not return the item without determining that the person can prove he is the owner. This is accomplished when the owner provides his siman identifying himself as the legitimate owner of the lost item.

If the claimant is dishonest, one should not return the lost item to him, even if he seemingly demonstrates that he is the correct owner. This is because of suspicion that he has discovered proof to claim falsely that he is the owner (Bava Metzia 28b).

WHEN SHOULD YOU NOT PICK UP A LOST ITEM?

If the lost item has no siman, you are not obligated to pick it up since you will anyway be unable to return it to the owner. Furthermore, there are two different circumstances whereby one should not pick up the lost item, and if one did, one may not keep it, even though the lost item has no siman. One case we mentioned above — where the owner originally placed the item there intentionally and subsequently forgot to retrieve it (makom hinuach). In this case, one should not pick up the lost item because the owner might still be able to retrace his steps and find the item, yet if you pick it up he will be unable to claim it since it has no siman (see Bava Metzia 25b). However, if leaving the item in its place will cause it to become destroyed or stolen, one should remove it and try to “announce” it using its location as a siman (ibid.).

WHAT IF THE OWNER DOES NOT KNOW HE LOST IT?

The second case where one should not pick up the lost item is where the owner does not yet know that he lost it (yi’ush shelo midaas) and the item has no siman. As explained above, since the owner does not yet realize his loss, he has not yet relinquished ownership. Therefore, the finder cannot keep the lost object.

In both of these instances, if the item has been lost for a long enough time that one may assume that the owner found out about his loss, one may keep the lost item. This is because of the following reason:

MAY I EVER KEEP AN ITEM THAT I FOUND?

If the owner knows that he has lost the object and despairs of retrieving it, then the finder may keep it, provided he picked it up only after the owner gave up hope to ever get it back (Bava Metzia 22b). Therefore, if the finder can assume reasonably that the owner has already given up hope that he will retrieve the lost object, the finder may keep it (Chinuch, Mitzvah 538).

WHAT HAPPENED TO THE “FOUND MONEY”?

Having explored the basic laws of hashavas aveidah, we now return to the saga of Hershel’s found money.

In our particular case, we can assume that someone who had lived previously in the house lost the money. Thus, we should be able to identify all the possible candidates and then try to narrow down the list.

We have no halachic reason to be concerned that the money was earned illegally.

I asked Hershel who had lived in the apartment previously. He told me he would contact the previous tenant and find out what he could.

Hershel contacted the previous tenants, a fine, halachically-committed couple, Chayim and Rochel. Hershel asked them if they had hid money in the apartment and forgotten about it, without hinting to them where the hiding place was so that he would not reveal the siman.

“No, I have no recollection of hiding money in the apartment that we left behind,” responded Chayim, “I am sure the money is not ours.”

From Chayim, Hershel found out the identity of the previous resident of the apartment, a not-yet-observant Jew, Phil. With a bit of luck, Hershel located Phil, and began to explain to him about the money.

“I hid money all over the house, in every hiding place you can imagine!” responded Phil, “I don’t even remember all the hiding places I used. Indeed, I probably didn’t take all the money with me when I left. I am sure the money is mine!”

Of course, this statement does not provide us with any help. Maybe the money is indeed Phil’s, but he must provide us with a siman. Not remembering the siman does not allow us to give it to him. For all we know, Phil could be a dishonest person, and the money belongs to one of the tenants who lived there before him.

Unfortunately, this put Hershel in a very difficult position. As mentioned above, one may not return money to a dishonest person, even if he provides a siman, because of concern that he might have guessed right (Mishnah Bava Metzia 28b). Thus, if Phil is indeed dishonest, Hershel could not trust him, even if Phil would guess where the money had been found.

Hershel attempted to explain to Phil that perhaps he could provide some more information about the money, such as where the money was hidden or how much money there was. Phil became very testy. “I am telling you the money is mine. What’s the matter, you don’t trust me?!”

Hershel called me back, a bit disappointed. He had tried to fulfill the mitzvah of hashavas aveidah, but unfortunately the trail ended here. We will never know whether Phil was the legitimate owner of the money, but the halacha requires us to be reasonably certain who is the owner before we return to him the lost item. Furthermore, there was no way to trace tenants of the apartment who lived there before Phil and to try to ascertain whose money it was. Hershel assumed that he would have to leave the money where he found it, hoping that perhaps one day someone will come by to identify the money properly by its simanim.

Maybe one day the true owner will realize that he had left money in the house and come back for it. Not coming back for the money could only be attributable to two causes:

  1. The loser has forgotten about the money. In this case, the finder may not keep it since the loser never intentionally gave up hope of finding it. If at some time in the future he remembers about the money, he may recall where he put it and come back to claim it. Thus, the money is still the property of the loser. In this instance, Hershel should leave the money in place as long as he retains residence in the house (Sma 262:12).
  2. The loser remembers that he hid the money, but he cannot recall where. In this instance, we may assume that when he realized that he cannot remember where he put the money, he would give up hope of ever finding the money again, and the money is hefker, ownerless. In this situation, Hershel would be allowed to keep the money (Shulchan Aruch Choshen Mishpat 260:1 as understood by Pischei Choshen Vol. I, pg. 282).

We see that returning lost items is a beautiful and important mitzvah, and that, sometimes, the details of the halacha are fairly complicated.

 

Understanding the Prohibition of Avodah Zarah

As there are several references to the prohibition of Avodah Zarah in this week’s parsha, we present:

Understanding the Prohibition of Avodah Zarah

Question #1: Defining Idols

Many people ask: “Are idol worship and Avodah Zarah the same thing?”

Question #2: The Only G-d

Rav Efrayim discusses: “May a gentile accept ideas that we consider Avodah Zarah, providing that he believes in G-d?”

Question #3: Nothing but G-d

Rav Moshe asks: “If all mankind is required to believe in one G-d, why do we say Shma Yisroel, that Hashem is One. Shouldn’t we say Shma Bnei Odom…?”

Introduction:

The most basic belief underlying our observance of Torah is that Hashem is the Creator of the world and the ongoing Director of all that transpires. He does not delegate authority to anyone or anything else, and we are to pray only to Him.

Idol worship vs. Avodah Zarah

Are idol worship and Avodah Zarah the same thing? The question, as phrased, is almost meaningless, since it does not define what is meant by idol worship. Truthfully, most people do not understand the extent of the prohibition of Avodah Zarah. They think that Avodah Zarah is limited to believing that some force other than Hashem decides our destiny. However, the prohibition of Avodah Zarah is far more encompassing. To quote the Rambam: “In the days of Enosh, mankind committed a major mistake…. This was their error: They said that, since G-d created the stars and the other cosmic forces with which to run the world, placed them in the heavens, gave them honor and they serve Him, it is appropriate to honor and praise them. They said that this is G-d’s Will – to honor that which honors Him” (Rambam, Hilchos Avodah Zarah 1:1). The Rambam proceeds to describe that this was the primary form of Avodah Zarah — not that any of those who worshipped the sun, moon or stars ascribed power to these celestial creations.

“With time, false prophets arose who claimed that G-d had commanded the people to worship specific stars or forces” (Rambam, Hilchos Avodah Zarah 1:2). The Rambam explains that this developed into extensive cults. “The primary commandment of Avodah Zarah is to not worship anything that was created, not an angel, not an extraterrestrial force and not a star… even when the worshipper knows that Hashem is the only G-d” (Rambam, Hilchos Avodah Zarah 2:1). We see that worshipping or performing any act of reverence to a force other than Hashem is included in Avodah Zarah, even when one accepts that all decisions are made by Him. To explain this further, let us discuss the term shituf.

Shituf

In most contexts, the word shituf is translated as “partnership.” When applied to the prohibition of Avodah Zarah, the term is used to mean worshipping something other than Hashem, even though the individual believes in one G-d Who created the universe. As we just read, the Rambam describes this mode of worship as the primary violation of Avodah Zarah.

There are several ways that one could violate Avodah Zarah through shituf. Above, we described one way: there is nothing wrong with the belief system, but the object being worshipped makes it into an act of Avodah Zarah.

Another form of shituf is the mistaken belief that, although Hashem is indeed the Creator of all, He authorized some other force to make decisions. This constitutes Avodah Zarah. Many religions believe that Hashem created the world, but believe that He delegated authority on some matters to angels or others whom He created. Some religions even believe that He passed authority to humans or to former humans. Any belief that G-d allowed some other entity or force to have a decision in helping or saving mankind is pure Avodah Zarah. Practicing or believing in any of these religions is Avodah Zarah.

Praying

Another way of violating the prohibition of Avodah Zarah through shituf is by directing one’s prayers to something other than Hashem. Even asking an angel to convey my prayers to Hashem qualifies as a very serious prohibition of Avodah Zarah. To quote the Rambam, “Only to G-d is it appropriate to serve, to praise, and to promulgate His greatness and His directives. One may not pray to anything beneath Him, not His angels, not the stars, not the celestial creations, not the elements of creation, nor anything developed from them. All of them are fixed in their deeds and have neither control nor independent free choice, with the exception of G-d. One may not make them intermediaries to use them to contact G-d. All our thoughts must be directed only to G-d, and one should ignore anything else. All this is included under the prohibition of Avodah Zarah. Most of the Torah’s purpose is to command us concerning this” (Rambam, introduction to his commentary on the tenth chapter of Sanhedrin, fifth principle).

This belief comprises the fifth of the thirteen basic beliefs of Judaism, formulated by the Rambam, that Klal Yisroel has accepted as the core belief system of Torah. In the words of the unknown author of the 13 ani maamins, it is structured as: Ani maamin be’emunah sheleimah, shehaborei yisborach shemo lo levado ra’ui lehispallel, ve’ein ra’ui lehispallel lezulaso, “I believe with complete faith that it is appropriate to pray only to the Creator, blessed is He, and that it is inappropriate to pray to anything else.”

Some well-meaning people may be making a serious mistake when they daven at a graveside. To avoid the possibility of inadvertently transgressing the prohibition of Avodah Zarah when visiting a gravesite, one should be careful that all one’s prayers are only to Hashem. (We will leave for a different time the discussion as to whether it is permitted to ask a deceased person to be a guta beter, to pray on our behalf. See, for example, Gesher Hachayim, Volume 1, Chapter 29, Section 9.)

One of the 613 mitzvos of the Torah is a prohibition against causing an oath to be expressed that includes the name of an idol. The Torah says, Vesheim elohim acheirim lo sazkiru, lo yishama al picha, “you may not mention the name of an idol, nor may your mouth allow it to be expressed” (Shemos 23:13).

Chazal understand that this includes a prohibition of swearing an oath mentioning the name of Avodah Zarah. They also understand that this prohibition includes causing an idol worshipper to take an oath, in which he uses the name of his idol. Again, to quote the Rambam, “It is prohibited to include something else together with Hashem’s Name in an oath. Someone who includes something else with Hashem’s Name in an oath is uprooted from the world. There is nothing else in the world that should be given honor” (Hilchos Shavuos 11:2).

Because of this mitzvah, until the modern era, Jews were excluded from holding office in most European countries, because assuming such a position required an oath of office that included a reference to what halacha recognizes as idolatry.

Gentiles

Although it may seem strange for a non-Jew to ask a rav a shaylah, it should actually be commonplace. After all, there are thousands of gentiles for every Jew in the world, and each one of them should be concerned about his or her halachic responsibility. Many non-Jews are indeed concerned about their future place in Olam Haba and, had the nations not been deceived by spurious religions, thousands and perhaps millions more would observe the mitzvos of Bnei Noach that they are commanded. It is tragic that they have been misled into false beliefs and practices.

The prohibition of Avodah Zarah applies not only to Jews, but to any human being walking the face of the earth. One of the mitzvos that bnei Noach are required to observe is a prohibition against worshipping Avodah Zarah. What is included in this prohibition?

On an obvious level, there should be no difference between the prohibition of Avodah Zarah as it applies to gentiles and as it applies to Jews, and this is the understanding of most halachic authorities. This approach is certainly implied by the Rambam, when he introduces the prohibition of Avodah Zarah by saying, “in the days of Enosh, mankind committed a major mistake,” which happened over a thousand years before the Torah was given to Klal Yisroel.

Between Israel and the nations

If, indeed, the prohibition of Avodah Zarah is the same for Jew and gentile, are there any differences between a Jew’s mitzvos regarding G-d’s existence and a gentile’s?

Yes, there are. A Jew has several positive mitzvos that a gentile does not, such as the mitzvah of ahavas Hashem, to love Hashem, and the mitzvah of yiras Hashem, to be in awe of Him. In general, the mitzvos of a ben Noach are prohibitions banning him from specific activities, but do not require him to perform any positive acts.

Other mitzvos

Several other laws that pertain to Jews germane to Avodah Zarah, such as the prohibition against entering a house of idol worship, or the prohibition of allowing an Avodah Zarah to be in one’s house, do not apply to bnei Noach.

Similarly, the prohibition of lo yishama al picha, “your mouth shall not cause the name of an idol to be expressed” does not apply to bnei Noach. Thus, they would not be prohibited from taking an oath by the name of something in addition to or other than Hashem.

At this point, let us analyze one of our opening questions: “Rav Efrayim discusses: ‘May a gentile accept ideas that we consider Avodah Zarah, providing that he believes in G-d?’”

The Rav Efrayim we mention was the author of the Shaar Efrayim, Rav Efrayim ben Yaakov Hakohen, one of the great Ashkenazic halachic authorities of the 17th century. He was the grandfather of the Chacham Zvi and the great-grandfather of Rav Yaakov Emden. The Shaar Efrayim was born and raised in Vilna, and became one of the dayanim of the city at the age of 20 in a beis din that included the Chelkas Mechokeik, the Shach and the Birchas Hazevach, Rav Aharon Shemuel Kaidenover. During the upheavals of the period of the Gezerios Tach veTat that destroyed the Jewish communities of Poland and Lithuania, the kingdom of Sweden invaded Lithuania (then under the control of the king of Poland).  During this era, the Shaar Efrayim fled southwestward, finding himself first in Moravia (now in the Czech Republic), then in Vienna and ultimately in Budapest, where he became the rav and opened a large yeshivah. He corresponded with the great poskim of his era, both those of the Ashkenazic world and those of the Sefardic world in Turkey and Eretz Yisroel. Eventually, he was offered and accepted the rabbonus of Yerushalayim, but, unfortunately, died in a plague before he could assume the position.

The question we are addressing, “May a gentile accept ideas that we consider Avodah Zarah, providing that he believes in G-d?” is published in Shaar Efrayim, in the context of the following halachic discussion.

Partnering with a gentile

The Gemara (Sanhedrin 63b; Bechoros 2b) prohibits creating a business partnership with an idol worshipper, because of concern that, should one need to have him make an oath, which was a common procedure in earlier generations, the gentile would swear in the name of his deity. This would cause the Jew to violate the prohibition of lo yishama al picha, “you may not cause the name of an idol to be expressed.” This ruling is codified in Shulchan Aruch (Orach Chayim 156).

Medieval gentiles

At the time that the Gemara prohibited creating a partnership with an idol worshipper, most gentiles were pagans. In the course of time, most European gentiles began to follow different religious beliefs and practices that accepted that there is one Creator, but included various other beliefs that qualify as Avodah Zarah. In the time of the rishonim, the following question was raised: Does the prohibition against forming a business partnership apply to a gentile who observes these practices?

Rabbeinu Tam, cited by Tosafos (Sanhedrin 63b s.v. Asur; Bechoros 2b s.v. Shema), ruled that it was permitted to have the gentiles of his day make an oath. The words Tosafos uses to express this idea is that a non-Jew is not commanded concerning shituf. This opinion is quoted authoritatively by the Rema (Orach Chayim 156). The question is, what did Tosafos mean?

Some authorities understood Tosafos to mean that shituf is not included in the ben Noach’s prohibition against worshipping idols (Olas Tamid, Orach Chayim 156). This interpretation understands that although the Torah is strongly opposed to any recognition or worship of any force other than Hashem, this aspect of Avodah Zarah was not included in the mitzvah that bnei Noach were commanded.

However, most authorities rule that this is a misunderstanding of Tosafos. In their opinion, there is no difference between Jews and non-Jews regarding the prohibition of idol worship. Any belief in another power that shares power or decision-making is a form of idolatry. It is also forbidden for a gentile to worship or pray to anything other than Hashem, even with the understanding that this object of worship is only an emissary of G-d.

According to the more accepted approach, Tosafos means the following: It is true that the gentiles in his day believed in ideas that qualify as Avodah Zarah. In addition, they prayed to their saints, whom they believed had a power to sway how G-d would treat them. When they swore oaths, they would include the name of the saint and the name of G-d. Tosafos rules that causing a gentile to swear an oath in which he mentions the name of a saint does not violate the Torah’s prohibition of lo yishama al picha, since the gentiles, themselves, view the saint only as a means to get Divine help, but not as a source of help himself. They did not consider their saints to be deities.

Furthermore, although the gentiles have strange idolatrous notions defining and understanding the nature of G-d, causing them to swear an oath in G-d’s Name does not violate lo yishama al picha, since the name of the idol is not mentioned. Even though they think of their idol, they don’t mention his name in their oath. Therefore, the Jew does not violate any prohibition when the gentile takes an oath (Shu”t Shaar Efrayim #24; Shu”t Mahara Sasson #95; Shu”t Meil Tzedaka #22; Machatzis Hashekel 156:2).

Stumbling blocks

Thus far, we have explained why Tosafos holds that when a gentile swears, the Jew does not violate lo yishama al picha. However, there is another halachic question: If a gentile must observe Avodah Zarah exactly as does a Jew, are we not causing the gentile to violate his prohibition of Avodah Zarah? This is included under the Torah’s violation of lifnei iver lo sitein michshol, “Do not place a stumbling block before a blind person.” In this context, the verse means: Do not cause someone to sin if he is blind to – i.e., he is unaware of – the seriousness of his violation (Avodah Zarah 6b). This mitzvah applies also to a Jew who causes a gentile to transgress his mitzvos.

Lifnei iveir and swearing

The Ran (end of the first chapter of Avodah Zarah) explains that there is no violation of lifnei iveir, since the ben Noach’s prohibition not to worship idols does not include a prohibition of swearing in the name of an idol. Thus, although a gentile may not serve Avodah Zarah, he is permitted to take an oath of allegiance to an idol in which he does not believe. A result of the Ran’s ruling would be that, in a country in which swearing allegiance to the local religion is a requirement for holding public office, a ben Noach would be permitted to swear this oath.

Shma Yisroel

Having concluded that a non-Jew is required to believe that there is only one G-d, we are left with a question based on a posuk that we recite several times every day: Shma Yisroel Hashem Elokeinu Hashem Echad. Why does the Torah say Shma Yisroel, when all non-Jews are prohibited from worshipping idols and from practicing shituf (see Maharam Shik’s commentary on Sefer Hachinuch, Mitzvah 418)?

This is the third question we asked above. Rav Moshe asks: “If all mankind is required to believe in one G-d, why do we say Shma Yisroel, that Hashem is one. Shouldn’t we say Shma Bnei Odom…

The Rav Moshe that I am quoting is Rav Moshe Shik, the Maharam Shik, who was the posek hador of the mid-nineteenth century in Hungary.

There are several answers one can give to explain this. I will share with you an answer that the Maharam Shik himself provides: The mitzvah of Shma Yisroel is that Jews are required to believe in one G-d because of the mesorah we have from our forefathers of the miracles that we saw at Har Sinai and in Egypt, and not because of logic. A gentile is permitted to believe in G-d even if his belief is only on the basis of his having been convinced through logic. Thus, Isaac Newton, who believed in G-d because His creation proves it, fulfilled the requirements of belief in G-d required of a gentile. However, Albert Einstein, who was Jewish and also believed in G-d because His creation proved it, but rejected the mesorah, did not fulfill the mitzvah of Shma Yisroel.

 

Where Do I Toivel My Keilim?

Since this is the parsha in which the mitzvah of tevilas keilim is taught, we ask:

Where Do I Toivel My Keilim?

Question #1: Gently in the stream

“Where I live, there is no mikveh that can be used for immersing new cutlery. May I dip the flatware in a local stream?”

Question #2: Make my own mikveh

“Alternatively, how difficult is it to make my own keilim mikveh?”

Question #3: Tap water mikveh

“If I make my own mikveh, may I use regular tap water exclusively?”

Background:

Metal and glass food implements that were previously owned by a gentile must be immersed in a spring or a mikveh prior to using them (Avodah Zarah 75b). I have written articles in the past on many of the halachos of this mitzvah. However, I have never written on the questions pertaining to where one may immerse these implements, so that will be the topic of this article. As always, the discussion here is not intended to provide final halachic guidance – that is for one’s rav or posek. The purpose of this article is to provide halachic background.

In many communities, a local keilim mikveh exists that was built under rabbinic supervision to expedite observance of this mitzvah. However, not all communities have such a facility, forcing people to seek alternative arrangements. Also, at times a person is traveling and needs to immerse some items that he has just acquired to use on the trip. May one use a nearby stream for this purpose? This is one of the questions we will be addressing in this article.

Introduction:

The Torah describes many different types of tumah (spiritual contamination), each with its own highly detailed laws. Although people or items contaminated by some of the more severe types of tumah, such as tumas meis or tzaraas, require other steps prior to immersion to become tahor (spiritually clean), the common denominator to remove all types of tumah is the requirement to immerse them in water. This means submerging the entire tamei person or item at one time, either in a spring or in a mikveh. (As we will see shortly, one category of tamei person, a zav, can become tahor only by immersion in a spring, not in a mikveh, and only in a spring whose water is potable.)

Conversion and tevilas keilim

In addition to purification from tumah, there are two other instances that require immersion in order to create sanctity. Someone converting to Judaism completes the process by immersing in a spring or mikveh. Similarly, a metal or glass food utensil previously owned by a gentile requires immersion when it is acquired by a Jewish person (see Talmud Yerushalmi, Avodah Zarah 5:15; Issur Vaheter 58:76; Ritva, Avodah Zarah 75b).

Ma’ayan versus mikveh

There are two types of water that can be used for these required ablutions. One is a natural spring that runs from underground, which is called a ma’ayan in Hebrew. The other type is a mikveh consisting of rainwater.

There are several halachic differences between a ma’ayan and a mikveh. As I mentioned before, although the immersion for virtually all types of tumah may be performed either in a mikveh or in a spring, the Torah specifies that one type of tumah, zav, becomes tahor only via immersion in a spring consisting of potable water (Mikva’os 1:8). There are two other halachos where use of drinkable spring water is essential. The ashes of a parah adumah must be mixed into spring water for its purification to be valid, and the purification of a metzora that involves two birds requires the use of spring water. In both of the latter instances, a small amount of spring water is drawn into a vessel to facilitate the procedure.

For the purposes of the rest of our article, we will focus on a different, critical distinction that exists between a mikveh and a ma’ayan. Whereas a spring can make things tahor even when its water is flowing, a mikveh’s water must be stationary for it to make people or items tahor. Even a leak in a mikveh could invalidate it; one should consult a rav for guideline as to when a leak is severe enough to nullify the mikveh.

Snow

We should also note that snow is treated like rain, and that, therefore, snow, or the water that results when snow melts, can be used for immersion only when it is stationary. We will soon learn of a major halachic ramification that results from this information.

Minimal mikveh

The minimal quantity of water required for a mikveh is 40 sa’ah, which Chazal say is the amount required for someone to immerse fully and properly at one time. There are many opinions how much this equals in contemporary measures of volume. Accepted practice is to construct mikva’os that are far larger than halachah requires, even when building a mikveh that is meant only for keilim.

Mekabeil tumah

An essential requirement is that nothing that can become tamei may be part of the mikveh, may move the water into the mikveh or may be used to keep its water stationary. This means that the piping used to transport the rainwater to the mikveh must not be susceptible to become tamei, and that no part of the mikveh itself be made of anything that is mekabeil tumah. Therefore, if a mikveh has a plug somewhere, it may not be made of material that is susceptible to tumah.

To apply this halachah, we need to define what it means that something is mekabeil tumah. Usually, it means that the item has been fashioned in a way that it is now considered to be a “vessel” or a “utensil.” Most vessels that can hold a liquid qualify as mekabeil tumah, although the term mekabeil tumah is not restricted to such utensils. For example, a metal plug is mekabeil tumah and therefore cannot be used as a stopper in a mikveh. If a mikveh requires a stopper, a rubber plug is used, since this is an item that is not susceptible to tumah. A full treatment of the topic of what is mekabeil tumah is beyond the parameters of this article, and it is one reason why someone who is constructing a mikveh should always be in contact with a posek familiar with mikveh construction, even if it is meant only for keilim.

Drawn water

For a mikveh to be kosher it must also meet several other requirements. The mikveh must, originally, be filled with water that was never inside a vessel. Water that was once in a bucket, drum or similar container is called she’uvim (literally, drawn) and invalid for use for purification, unless it became connected to a kosher mikveh or spring. The laws here are highly complicated, again providing a reason why one should not construct a mikveh without guidance from someone well familiar with these halachos.

Once a mikveh contains the minimal amount of water needed to be kosher, one may add she’uvim water to the mikveh, and it remains kosher. There are early authorities who contend that this holds true only as long as one is not actively removing water from the mikveh, but that once one begins to remove water from the mikveh one must be certain that the majority of the remaining water in the mikveh is not she’uvim. Although many authorities rule that one does not need to be concerned about this minority opinion, the Shach (Yoreh Deah 201:63) and others rule that one should build a mikveh that is kosher even according to this opinion, and that is the usual practice. (However, see Shu”t Chasam Sofer, Yoreh Deah #203, 212, 214, who did not feel it necessary to take this into consideration when constructing a mikveh.)

In order to accommodate the Shach’s concern, most mikva’os are built according to one of three basic designs or a combination of them. In one design, a mikveh that was originally filled with rainwater lies alongside the pool used for immersion, but with a concrete wall between them in which there is an opening in the concrete above the point to which the pool will be filled. Regular tap water is added to the mikveh until its water rises high enough so that it spills through the hole into the adjacent pool that is meant for immersion. After this process is performed, the pool may be used for ablution according to all opinions. This approach, which is called zeriyah, was the approach recommended by the Chazon Ish (Yoreh Deah 123:5) and the Taharas Hamayim (Chapter 46), and is the most common construction used in most mikva’os today.

The second approach has a similar appearance, in that there are two adjacent pools separated by a concrete wall which has an opening between them that is high on the wall. However, in this instance, the water is added to the side that is used for immersion until the water level raises high enough that its water touches the mikveh water which is located adjacent to it. The minimum size for such an opening is kishefoferes hanod, the opening of a flask, which means that it is large enough for one to place two fingers inside and rotate them comfortably. This approach is called hashakah.

A third approach, used in some mikva’os, is that they are constructed such that there is an additional rainwater mikveh immediately below or alongside the ablution pool, and that there remains a small opening between the ablution pool and the mikveh that is always open. This approach is called hashakah beshaas tevilah. The intrepid reader wishing to read up on the controversy concerning this mikveh will read Shu”t Divrei Chayim 2:98 and Pischei Mikva’os by Rav Yaakov Blau, Chapter 9, footnote 41.

Sink or swim

As we have now seen, constructing a mikveh requires that one knows how to do so in a halachically correct way. It is unlikely that someone without this knowledge will be able to construct a mikveh correctly. It is for this reason that one should be careful not to use a mikveh without finding out which halachic authority sanctioned it. I have found mikva’os in hotels that were halachically problematic, because they were not constructed according to proper halachic instruction. Similarly, in many places it is common that hardware and houseware stores construct their own keilim mikveh on the premises. These mikva’os may indeed be kosher, but one should not rely on their kashrus without finding out which rav verifies that the mikveh was manufactured correctly or having the mikveh checked by someone familiar with the laws of mikva’os.

Make my own mikveh

The simplest type of mikveh, far easier to make than those described above, is sometimes constructed for immersing vessels. In these instances, water, usually gathered from the roof of an adjacent building, is channeled into a concrete basin. The pipes used for this endeavor may not be mekabeil tumah, susceptible to tumah, something not difficult to arrange, and the walls of the mikveh must be constructed in a way that they contain nothing that is mekabeil tumah.

By the way, there is nothing wrong with having steel mesh reinforcing the concrete walls of a mikveh. Although a steel vessel would be mekabeil tumah and is therefore unacceptable in the construction of a mikveh, steel mesh is not itself an implement and it may therefore be used to reinforce the concrete basin of a mikveh.

At this point, we can address the second of the questions raised at the beginning of this article: “How difficult is it to make my own keilim mikveh?”

If someone is looking to make a small keilim mikveh, it is not that difficult or expensive a project. However, prior to making the mikveh, he should contact a rav or posek who knows how a mikveh is constructed. Indeed, someone building a proper keilim mikveh is performing a major chesed for his community and receives reward for everyone who ultimately uses it.

Let me explain what one needs to do. A keilim mikveh requires two basic factors: a pool where the keilim will be dipped, and the means of draining rainwater into that pool. The manufacture of the pool requires only that one pour concrete in a way that the pool will hold the requisite volume of water. Since this is being used only for vessels, there is no need to construct any building around it, and one does not need to be concerned about hot water, plumbing, or heating. Again, I suggest that this construction should not be undertaken without first consulting with someone who has the halachic expertise to ascertain that it is done properly.

City water

Why don’t we use only regular tap water for the mikveh? What could be wrong with this?

Although indeed some have advocated that regular piped water does not qualify as she’uvim and can therefore be used all by itself for filling mikva’os (see, for example, the work, The Secret of the Jew, by Rabbi David Miller), most authorities are hesitant in recommending its use. To understand why, there is a thorough essay on the topic in Chapter 40 of Taharas Hamayim, an encyclopedic work on the laws of mikveh with an emphasis on contemporary issues, authored by the late Rav Nissen Telushkin. In that chapter, Rav Telushkin describes how he made an exhaustive study of the New York City water system, and includes the various sources of water that New York City used in the 1950’s when he performed his study. The chapter includes detailed diagrams and descriptions of the various pumps, holding tanks, filters, meters, and pressure tanks that were used then in the processing and the transporting of the water. Rav Telushkin carefully analyzed each piece of equipment to see whether it was mekabeil tumah. He concluded that, in his day, in most places of New York City, the city water supply could be used, if needed, as the main source for the water in a mikveh, but that there were areas where this would not be allowed. The reason for these exceptions was that in these places, the water was transported through a pressure tank that, halachically, might have been equivalent to it being in a vessel. Based on all his research, he concludes that one should never use the publicly- supplied tap water as the original water of a mikveh unless one has done the exhaustive research necessary to see that in your locale such water is indeed kosher for mikveh use.

In the stream

At this point, let us examine the first of our opening questions: “Where I live, there is no mikveh that can be used for immersing new cutlery. May I dip the flatware in a local stream?”

Obviously, this stream is not a kosher mikveh, because its water is flowing. The question that we need to determine is whether a stream qualifies as a ma’ayan, according to halachah, in which case it can be used, even though its water is flowing constantly. How does halachah determine whether the water source of a stream is a spring, or whether it is rainwater?

Halachah recognizes three types of streams. One is a stream which is fed mostly by spring water, but has a minority of its water (that is, less than fifty percent) from rainwater. Since a majority of its water volume is composed of spring water, this stream can be used while it is flowing (Shulchan Aruch, Yoreh Deah 201:2).

A second type is a stream that normally consists of spring water but that now has swollen to more than twice its volume after a rainfall, or when the snow melts. According to the ruling of the Shulchan Aruch, since most of the volume of the stream is now rainwater, it may not be used to make items tahor, unless one can make its waters stationary. The Rema (ad loc.), however, rules that, although it is preferable to follow this ruling, there was a prevalent custom based on halachic sources to permit use of this stream, even when it is flowing. He concludes that one need not correct someone who relies on this approach.

The third type of stream

The third type is a stream that dries up completely when there has been no rainfall. Such a stream may not be used as a spring and can be used only if one can make its water stationary (Rema ad loc.).

We can now answer the question raised: May a stream be used to dip vessels that require immersion? When the stream’s volume does not double after a rainfall, all opinions agree that one may use it, even when its water is flowing. When its volume is doubled, or more, there is halachic basis to permit its use when its water is flowing, although the Shulchan Aruch and others prohibit this. A stream that dries up completely when there is no rain may be used to immerse utensils only as a mikveh, which means one would have to make the water stationary in order to use it.

Conclusion

The Torah provides us with a mitzvah to immerse food utensils, because this immersing elevates their sanctity so that they can now be used for a Jew’s table. Thus, we see that not only is the food that a Jew eats required to have special care, but also the equipment with which he prepares and eats that food.

 

Of Umbrellas, Trees and Other Kohen Concerns

Question #1: Does tumah spread under umbrellas?

Question #2: The exit off the highway I take to work borders on a non-Jewish cemetery, and there are trees overhanging the road. One of the fellows I carpool with is a kohen, but he is not bothered about this issue. Even though I am not a kohen, should I be concerned?

INTRODUCTION

Parshas Chukas discusses tumas meis, the spiritual defilement that results from contact with a corpse or other human remains. When the parah adumah is restored and we endeavor to keep ourselves tahor whenever possible, Jews will be more mindful of how tumah spreads. In that era, every Jew will be careful to be tahor when separating challah and terumah, eating maaser sheini and korbanos, and entering the Beis HaMikdash, all of which should be performed only when tahor. (Unfortunately, today we separate challah, terumah and maaser sheni when we are tamei because we have no other option.) For these and many other reasons, the laws of tumah and taharah will then affect everyone.

In the interim, the laws of tumas meis do not directly concern most people, but they certainly affect kohanim, since the Torah prohibits them from contracting tumas meis. Nevertheless, every Jew should be familiar with these halachos since a knowledgeable non-kohen can often prevent a kohen from becoming tamei, as we will soon see. Furthermore, a non-kohen may not cause a kohen to become tamei.

SOME BASIC LAWS OF TUMAH

A person can become tamei meis in three different ways: 1) maga (touching), 2) masa (carrying or moving, even if one does not touch the remains), and 3) being under the same ohel (roof). A kohen is prohibited from becoming tamei meis by any of these methods and therefore he may not touch, move, or be in the same ohel as human remains. (There are two exceptions when a kohen must become tamei: either to a close relative, or to a meis mitzvah, the corpse of a Jew that has no one else to take care of it.)

DO REMAINS OF A NON-JEW CONVEY TUMAH?

The remains of a gentile convey tumas meis if they are touched or carried. There is a dispute whether these remains convey tumas ohel, and the Shulchan Aruch rules that it is proper to be careful (Yoreh Deah 372:2). Therefore, a kohen should not enter a room containing the remains of a non-Jew. This last halacha affects kohanim entering hospitals when it is not a life threatening emergency, and visiting museums which may have human remains. (My experience is that most museums contain some form of tumas meis.)

AN OHEL IS NOT JUST A TENT

Although the word ohel also means “tent,” or “roof,”  tumas ohel has much broader connotations and  is conveyed via almost any cover or overhang at least a tefach wide (about three inches) [Ohalos 3:7]. Therefore, a protrusion, overhang, umbrella, or branch with this width is an ohel; if it is over a grave or corpse, it conveys tumah to anyone standing anywhere underneath.

NARROW BRANCHES

Many authorities contend that an ohel that is a tefach wide at one point spreads tumah under its entirety, even under a narrower part (Rambam, Tumas Meis 12:6; 18:1; cf. the Rosh’s commentary to Ohalos 15:10, who disagrees). According to this approach, a tree branch that is a tefach-wide at one point continues to be an ohel when it narrows and can thus spread tumah rather extensively. Some contend that this is true only when the branch or protrusion is a tefach-wide for a majority of its length (Aruch HaShulchan, Yoreh Deah 371:25; the Tosafos Yom Tov seems to disagree.), whereas others maintain that it becomes an ohel only if the tumah is located beneath its tefach-wide section (Sidrei Taharos, Ohalos 12:6).

CONNECTING OHEL AREAS

Tumas ohel spreads from one ohel area to any other ohel that overlaps or connects even if the different ohel “roofs” are of very different heights. Therefore, a series of overlapping or connecting roofs, ledges, caves, umbrellas, tree branches, or even people, can create a continuous ohel that transfers tumah for great distances. Indeed, what appears to be separate buildings or structures may be one large ohel connected by open doors and windows (under certain circumstances, even through closed ones), ledges or tunnels, and tumah in one building may spread across an entire complex of buildings. This is particularly common in hospitals, museums, shopping malls, university campuses and airport terminals where remains in one part of the building, or even on an airplane connected to the terminal through a jetway, may spread tumah throughout the entire facility.

Another example of this principle is that if human remains are transported into an airport terminal or medical facility that connects to a subway station, tumah spreads throughout the entire subway system and prohibits any kohen from remaining anywhere in the subway, since the entire system qualifies as one large ohel. Therefore someone dying in a Bronx subway station contaminates a kohen awaiting his commuter train in Penn Station!

KEEP YOUR DISTANCE

The human body can also function as an ohel that conveys tumah. For this reason, a person leaning out of a window over a corpse or grave becomes an ohel that transfers tumah into the house (Ohalos 11:4). Similarly, people crowded around a corpse or a grave can create a continuous ohel that transfers tumah to anyone who touches them. Because of this, a kohen attending a funeral should keep his distance from the crowd.

In the same vein, when a crowd of people escort a meis on a rainy day, one person whose body is partly above the casket spreads tumah via his body to the area under an umbrella, and then the tumah spreads throughout the crowd from umbrella to overlapping umbrella. Some authorities contend that a kohen must distance himself four amos (about seven feet) away from the umbrella nearest him.

I once attended a funeral in a yeshiva beis hamedrash where the tumas meis spread through an open door under the building’s awning, under umbrellas outside, and then from umbrella to umbrella for a very extended area. The tumah eventually reached an area where many kohanim had gone to avoid becoming tamei, but they were completely unaware that they had violated a Torah prohibition! All this could and should have been avoided with a little foresight and planning, such as arranging an assembly area for kohanim distant enough to keep them tahor. A well-educated yisroel could have resolved the unfortunate problem. Since many people have told me that this is not an uncommon problem, I advise that funerals be arranged for sunny days!

TREES

As we saw above, a kohen must be careful not to pass beneath a tree branch that also overshadows a grave. It is common to find large trees overhanging a cemetery and a section of roadway at the same time. As I pointed out, even if the cemetery is not Jewish the Shulchan Aruch advises that a kohen should avoid defiling himself in the ohel of a non-Jew. It is certainly a problem if the cemetery is Jewish. If this case affects you, I suggest asking a shaylah what to do.

Also, it often happens that one side or one lane of a road passes under trees that overhang a cemetery while the other side or lanes do not. Sometimes, while driving down a city street, a kohen suddenly realizes that the street ahead passes alongside a cemetery and that there are trees overhanging the roadway. Obviously, he should not swerve suddenly and endanger people in order to avoid defiling his kedusha; however, people should prevent this situation by notifying kohanim that the road is problematic.

LEAVES OR ONLY BRANCHES?

Although several places in the Mishnah and Gemara (Bava Basra 27b; Negaim 13:7; Kiddushin 33b) assume that tumas meis spreads underneath trees, the authorities dispute whether leaves and twigs create an ohel, or only branches. Some poskim contend that leaves and twigs rarely become an ohel; others make a distinction between sturdy ones that can bear weight and those that cannot; others distinguish between large leaves and small ones; and still others discriminate between leaves of deciduous trees and those of evergreens that have leaves all year round (see Sukkah 13b; Rambam, Tumas Meis 13:3).

DATELINE: LVOV, POLAND, ROSH HASHANAH, 1620

The halachic questions raised above became mired in controversy in 17th Century Lvov (more commonly known to Jews as Lemberg), Poland. (Because of the extensive shift of international borders at the end of World War II, this city is now located in the Ukraine.)

On Rosh Hashanah 5381 (corresponding to September 1620), Lvov’s new rav, Rav Yaakov Kopel Katz, noticed that people were walking into a nearby forested area. Rav Katz noticed that the dense foliage under which people were relaxing continued until the local cemetery. Rav Katz prohibited kohanim from entering this area, contending that tumah from the cemetery spread under the tree canopy, contaminating the entire area. Thus, he felt that kohanim relaxing in this area were violating the Torah prohibition of contracting tumas meis.

The townspeople claimed that the Drisha, possibly the greatest posek of his generation, who had himself been a kohen, had walked and sat under these same trees when he had served as Rav of Lvov only a few years before. Rav Katz countered that at the time of the Drisha, the tree canopy must not have extended so far, and the areas he walked under were not connected to the cemetery.

What exactly was the question? Apparently, the trees in question did not have wide branches, but did have dense foliage comprised of small leaves that touched together, leaving no space between them. Rav Katz held that even twigs and leaves not strong enough to support any weight can still combine to form an ohel. He also held that although plants that die in the winter are not significant enough to be an ohel, the deciduous leaves of trees that survive from year to year do qualify as an ohel.

Rav Katz wrote an extensive responsum outlining his halachic concerns and sent it to a different kohen in Lvov, a talmid chacham named Rav Avraham Rapaport. Rav Rapaport disagreed with Rav Katz and penned his own correspondence wherein he maintained that these trees did not spread tumah. Rav Rapaport contended that twigs and leaves form an ohel only when they fulfill the following conditions:

  1. They are strong enough to bear the weight of a layer of plaster applied to them.
  2. Each leaf is itself the size of a square tefach, approximately three inches by three inches. He maintained that one does combine different leaves and/or twigs to form an ohel, even if there is no space between them at all.
  3. The leaves are evergreen (see also Gesher HaChayim pg. 87).

According to Rav Rapaport, the Drisha might indeed have been relaxing under the same foliage that still existed in 1620! (Of course, we will never know.)

Rav Rapaport then mailed the two responsa, his own and Rav Katz’s, to a third scholar, Rav Aharon Abba HaLevi, who concluded like Rav Rapaport, although for slightly variant reasons. He agreed with Rav Katz that leaves combine to form an ohel, but in addition to remaining through the winter and being strong enough to withstand the weight of a layer of plaster, he added yet another condition: They must be sturdy enough not to be blown by a typical wind (see Tosafos, Sukkah 13b).

Rav Rapaport then sent the three responsa to the gadol hador, the Tosafos Yom Tov, for his ruling on the famed trees of Lvov. The Tosafos Yom Tov sided with Rav Rapaport and Rav Aharon HaLevi that the leaves involved were not an ohel. However, the Tosafos Yom Tov held a stringent opinion concerning a related issue that none of the other scholars had addressed. He contended that if the branches are a tefach wide at any point, tumah continues to spread even when they narrow. (As I mentioned above, this is subject to a dispute between the Rambam and the Rosh. Among the later authorities, most rule like the Rambam and the Tosafos Yom Tov [Dagul MeiRevavah on Shach 371:14; Chochmas Odom; Aruch HaShulchan], whereas some rule like the Rosh [Chasam Sofer, Chullin 125a].) (Rav Rapaport printed the correspondence of the four rabbonim as a chapter in his own magnum opus, Shu”t Eisan HaEzrahi #7.)

FROM LVOV TO NORTH AMERICA

This last distinction is critical. It is very common that the branches of a mature tree are a tefach wide near the trunk although they narrow as they grow. According to Tosafos Yom Tov’s conclusion, these trees will spread tumah under their boughs even if they narrow considerably, thus spreading tumah to a considerable extent. The result is that if the branch of a tree one tefach wide at one point spreads over the graves, and this branch then extends over or under a branch from another tree, which in turn stretches over or under a branch from another tree, the tumah will continue to spread as long as each branch is a tefach wide at some point. (As mentioned above, some commentaries contend that the tumah spreads from one branch to another only when both branches are a tefach wide at the point that they cross one another.) This is because beneath each branch is an ohel, and the tumah extends from one ohel to another.

In the contemporary world, this shaylah is extremely germane due to the widespread use of large trees as urban landscape. It is very common for trees to overhang cemeteries in a way that spreads tumah onto nearby highways, streets, and sidewalks. With this information, we can now address the first question raised above: “The exit off the highway I take to work borders on a non-Jewish cemetery, and there are trees that overhang the road. One of the fellows I carpool with is a kohen, but he is not concerned about this issue. Do I need to be?”

There is indeed cause for concern. Due to technical factors such as the width of the branches and the locations of the graves, and halachic factors, one should ask one’s rav what course of action to follow in this situation.

EIGHTEENTH CENTURY

A shaylah very similar to our contemporary case involved a dispute between two mechutanim, both of them prominent rabbonim, Rav Yosef Hock and the Teshuvah Mei’ahavah, Rav Elazar Flekelis, who was the primary disciple and successor of the Noda BiYehudah. The case involved a shul adjacent to a cemetery that was used for fetuses and stillborns, whose unmarked graves convey tumas meis and tumas ohel. A tree’s branches extended over the cemetery and its branches brushed against the shul building. When the windows of the shul were open, if indeed the tree conveyed tumah, the tumah would now spread from the tree through open windows into the shul, creating a problem for kohanim. Rav Hock contended that the tree limbs did not require trimming since they were very weak and would not withstand any weight. Furthermore, it was uncertain whether the tree overhung the unmarked graves, since no one was certain exactly where the fetuses were laid to rest.

However, the Teshuvah Mei’ahavah took issue with many of the facts presented by his mechutan, contending that it was possible that the entire cemetery was already filled with graves, that the tree branches would eventually grow strong enough to bear weight, and that it is far better to accustom the community to trim the branches regularly and avoid any problem. Furthermore, he notes that it is not certain that a branch too weak to support any weight is not an ohel (Teshuvah Mei’ahavah Vol. 1 #89).

CONCLUSION

Certainly umbrellas and trees can convey tumas meis; the halacha discussion is whether thin branches, twigs, and leaves do. Thus, a tree overhanging both a cemetery and a highway provides good reason to research whether a halachic problem exists. The checking of the layout and other factors should be performed by a non-kohen who is highly knowledgeable in the laws of tumas meis.

WHY IS IT PROHIBITED FOR A KOHEN TO COME IN CONTACT WITH A MEIS?

Although it is beyond our ability to fathom the reasons for the mitzvos, we can and should attempt to glean a taste of Hashem’s mitzvos in order to grow from the experience of observing them. Thus, it behooves us to attempt to explain why the Torah bans a kohen from having contact with a meis under normal circumstances.

Rav Hirsch, in his commentary on Vayikra 21:5, provides us with a beautiful insight into this mitzvah. In most religions, fear of death and what happens afterwards are the major “selling points.” Thus, the role of the priest is most important when dealing with death. However, the Torah’s focus is how to live like a Jew—to learn Torah and perform mitzvos, and devote our energies to developing ourselves in Hashem’s image. To emphasize that the Torah is the blueprint of perfect living, the kohen, who is the nation’s teacher, is excluded from anything to do with death. The kohen’s role is to imbue us with the knowledge and enthusiasm to live!!

 

A Woman’s Guide to Tzitzis

The Torn Hole

Question # 1

Mrs. Friedman wants to know:

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

The Unraveled Knot

Question #2

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

A Bicycle Casualty

Question #3, from Mrs. Goldberg:

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

The Woman’s Tzitzis Guide

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

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

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

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

Special Strings

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

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

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

Combing Lishmah?

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

Articulation

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

Hand or Machine?

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

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

What Material Should Be Used?

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

The Garment Does Not Require Lishmah

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

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

To review:

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

Inserting the Tzitzis

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

Where Should the Hole Be?

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

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

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

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

Closest Hole

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

To sum up:

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

Yes, Mrs. Friedman

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

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

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

Four in One

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

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

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

Pulling Strings

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

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

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

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

Remember the Mitzvos!

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

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

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

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

Jewish Labor

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

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

How Many Coils?

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

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

Hang Loose!

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

Tear Near the Top

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

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

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

Torn String

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

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

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

Conclusion

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

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

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

 

Thoughts on Chinuch

Since this week’s parsha discusses the Tochacha, whose entire purpose is the education of the Jewish people, it is certainly an appropriate time to discuss:

Thoughts on Chinuch

Question #1: Chinuch or Myself?

Is it better to train my children to do hachnasas orchim, or to do the mitzvah myself?

Question #2: Who Pays?

Whose responsibility is it to pay for the Torah education of those children whose parents cannot afford it?

Question #3: Tongue in Cheek

What delicacy should one ideally serve one’s guests?

Introduction:

The Torah teaches that Avraham Avinu ran to his cattle to shecht fresh meat for his guests. According to the Gemara (Bava Metzia 86b), which Rashi quotes, he slaughtered not one, but three animals, in order to serve a delicacy to each of his guests – an entire tongue, prepared and served with mustard. I have been told that there was an old custom to serve tongue as a delicacy for Yom Tov meals, particularly when having guests. (I am disappointed to note that I do not think I have ever been the guest of people who have that custom. Do you know anyone who observes it, and can you figure out how to get me invited?)

In the context of this discussion, Rashi is bothered by a question. Immediately after Avraham Avinu slaughters the bulls, while he is acting with total alacrity to perform the mitzvah of hachnasas orchim, the pasuk notes that he gave them to “the lad.” The question is: Avraham Avinu was a very wealthy man, with many servants who could have taken care of his guests. Obviously, he wanted to perform the mitzvah himself (mitzvah bo yoseir mibeshelucho, see Kiddushin 41a). If this is true, why did he give this part of the mitzvah to someone else?

Rashi, quoting the Midrash Rabbah, explains that “the lad” is Yishmael, and that Avraham’s goal was to train him in the mitzvah of hachnasas orchim. How does Rashi know this? The answer is that otherwise Avraham Avinu would not have allowed someone else to participate in the mitzvah. For this reason, even those who can afford household help should make the beds and prepare the meals for guests, so that they can perform the mitzvah themselves.

Rashi’s explanation assumes that the mitzvah of training your children to perform mitzvos is more important than doing the mitzvah yourself, and therefore the na’ar must have been Yishmael.

From this it would appear that we see an important lesson in chinuch. Often we could gain much more spiritually by performing a mitzvah ourselves than by spending time training our children to do the mitzvah. But some authorities rule that it is our halachic responsibility to train our child, even when we seem to gain less spiritually as a result. As we will soon see, not everyone agrees with this assessment.

Chinuch Controversy

When the Gemara in Bava Metzia discusses Avraham’s interaction with the angels, it makes the following statement: “Whatever Avraham did for the angels by himself, Hakodosh Boruch Hu later performed for his children Himself, and whatever Avraham did via an agent, Hakodosh Boruch Hu performed for his children via an agent.” Thus, the Gemara implies that there is criticism of Avraham for not doing these mitzvos himself.

Rav Moshe Feinstein explains that, indeed, Avraham Avinu felt that he should include Yishmael actively in the mitzvah. However, the Gemara is teaching that it would have been better chinuch for Yishmael to see Avraham Avinu perform all the chesed himself and not discharge some of the responsibility (Dorash Moshe, new edition).

Chinuch or Myself?

We can now address our opening question: Is it better to train my children to do hachnasas orchim, or to do the mitzvah myself?

According to Rav Moshe, it is better to do the mitzvah myself in a way that my child knows that I am doing it. I should have the child involved when I cannot perform all the chesed myself in an efficient way.

Partners in alacrity

We should note that the wording of the Midrash Rabbah varies slightly from what Rashi writes. The Midrash Rabbah states vayitein el hanaar zeh Yishmael bishvil lezarzo bemitzvos, which translates as “And he gave it to the lad – this was Yishmael – in order to have him treat mitzvos with alacrity.” Whereas when Rashi quotes this, he says simply lechancho bamitzvos, “to train him in mitzvos.” The Midrash adds another lesson. Avraham Avinu was not only training Yishmael to perform hachnasas orchim himself, but he wanted him to learn to do it with zerizus, promptly and with enthusiasm. Avraham Avinu felt that although one usually teaches best by way of example, a child learns the way of his parents not only by observation, but also by participation. When a child becomes a partner in his parents’ chesed endeavors, the child’s learns to become a zariz in chesed.

His brothers or his sons?

We find a similar lesson borne out in another Midrash Rabbah. The pasuk in Bereishis (31:46) teaches that to make a covenant with Lavan, Yaakov told “his brothers” to take stones. Midrash Rabbah (74:13) points out that Yaakov had only one brother, and that brother, Eisav, was not with him at the moment. The Midrash, cited there by Rashi, explains that his “brothers” must have been Yaakov’s sons, whom he called his brothers.

The question is, what are the Midrash and Rashi teaching us here? Why does the Torah refer to Yaakov’s sons as his brothers? Let the Torah call them his sons!

Rav Shlomo Wolbe explains that part of chinuch is to have your children become your partners. If a child feels that he is a partner in his parent’s mitzvah and chesed activities, he does not feel that he is being forced to do something, or that his parents are providing for someone else rather than attending to the child’s needs. Quite the contrary, he feels honored by the responsibility (Zeriyah Uvinyan Bechinuch, page 27). Thus, Avraham Avinu understood that the proper chinuch is to make your child a partner in the mitzvah of hachnasas orchim, notwithstanding that otherwise one should perform the mitzvah oneself.

Bear in mind that this does not mean that the child does most of the work. The parent does most of the work, and incorporates the child in a way that the child feels honored to be a partner in the parents’ chesed endeavors. When the child sees that the parent always runs to do the chesed himself or herself, and then involves the child in part of the project, the child understands instinctively that the parent is involving them not because the child is doing the parent a favor, but in order to share the performance of the mitzvah with the child.

Accomplishments of a mechanech

Someone who implements the goals of chinuch accomplishes tremendous things, as we see in the following passage of Gemara (Taanis 24a). Rav went to a place that was suffering from a severe drought. In earlier days, when neither piped nor bottled water was available, a drought was a calamitous circumstance. The lives of all individuals in the community, both wealthy and poor, are endangered. One cannot live without water, and one needs water not only for drinking, but also for crops and livestock, without even mentioning the need to bathe and launder clothing.

Rav declared a fast day, which the community began observing, but rain still did not fall, and the fervent prayers of the community did not seem to be having any obvious influence.

The gabbai then asked a particular individual to be the chazzan. When the individual chosen began reciting the repetition of the shemoneh esrei as the representative of the famished and thirsty community, as he said the words mashiv haruach, the wind began blowing, and when he recited the words umorid hagashem, it began to rain, thus relieving the problem for the entire area. Thus, the merits of the prayers of this one individual saved the entire community not only from financial devastation but from almost certain death!

Rav inquired of the chazzan what his occupation was. He answered: “I am a melamed of children, and I teach the children of the poor just like the children of the wealthy.” (In those days, this was not a job in a local school, but it was arranged on an individual basis. Usually, the financially stable members of a community could get together and hire an excellent rebbe for their children. The poor, unfortunately, sometimes had to do without.)

Continued the melamed, “If someone cannot afford to pay my wages, I teach his child without pay. Furthermore, I own fish ponds, and whenever a child misbehaves, I bribe him with fish until I get him to straighten out. I then spend time making him feel good until I succeed in getting him to learn Torah.” Do we have any question why Hashem answered the prayers of the melamed!

The Ben Yehoyada explains in greater depth that this melamed was rewarded and listened to because he treated the poor and the wealthy in the same way. Water is a great equalizer. It provides for everyone equally. In a place without any water, the wealthy will die also. Furthermore, there are machlokos regarding irrigation ditches, because each individual wants more water at the expense of his fellow. This is not so regarding rainwater, since each household receives water directly from Above that others cannot claim.

The Ben Yehoyada notes further the method that this melamed used to encourage his talmidim. In an era when rabbeyim would resort to potching to get a child to learn, this melamed used fish as a positive reward.

In addition, fish are concealed from the eye — no ayin hora controls them. Rain is similar; it absorbs into the ground, so no ayin hora sees it, and it always flows to a lower place, reflecting humility. This is again similar to the humility so obvious in the behavior of this melamed that we are not even told his name. Such recognition would run counter to his way of serving Hashem.

Where was the community?

There is a question germane to this story: The Gemara states that the melamed involved was teaching the children of the poor of his own volition. No one in the community was making sure that they had a rebbe. However, this story took place hundreds of years after the days of the great tzadik, a kohein gadol named Yehoshua ben Gamla, who had created a revolution in Torah education by requiring that communities create yeshivah schools and support them.

To quote the Gemara (Bava Basra 21a): Rav Yehudah said in the name of Rav, “Indeed, this man named Yehoshua ben Gamla should be remembered favorably, for, were it not for him, Torah would have been forgotten from the Jewish people. Prior to his time, someone who had a father, his father taught him Torah, and one who had no father did not study Torah”. First, Yehoshua ben Gamla introduced that there be melamdim available in Yerushalayim to teach Torah without charge to the student. He eventually expanded this program until every city and town had Torah teachers available for every Jewish boy, beginning from the age of six or seven. His ruling established this as a permanent requirement incumbent upon Jewish communities: They are obligated to guarantee that every Jewish boy can study Torah. Subsequent to this time, a community that failed to assume this responsibility was excommunicated, and if this failed to alleviate the situation, destroyed (Shabbos 119b; Rambam, Hilchos Talmud Torah 2:1).

So, the question is raised: Why did it fall upon this melamed to provide personally for the poor children in his town? Why did the community not assume responsibility that there be melamdim available to teach them?

We do not know why this community had not made arrangements to have Torah taught to all its students. But we do see that this melamed took the responsibility on himself when he saw that the need was not being fulfilled. Single-handedly, he was the Rav Yehoshua ben Gamla of his town!

At this point, it is appropriate for us to discuss one of our opening questions: Whose responsibility is it to pay for the Torah education of those children whose parents cannot afford it?

Based on the Gemara in Bava Basra, we can answer one of our opening questions: We see that the Jewish community must assume this responsibility.

Many students

The Mishnah at the beginning of Pirkei Avos quotes that one of the three lessons that the Anshei Keneses Hagedolah emphasized was he’emidu talmidim harbei. But the literal translation of the word he’emidu, means to “get them to stand up.” What does that mean?

One early anthology, the Midrash Shmuel, quotes several approaches. One approach is that it is an instruction to the philanthropists of a community: Provide financial support for as many students as possible. Do not rest on your laurels that you have already been a major backer of Torah! As long as there are more potential students, find means to have them supported.

Growth through teaching

The Midrash Shmuel mentions another answer to explain the words he’emidu talmidim harbei. The Midrash Shmuel mentions another answer to explain the words he’emidu talmidim harbei. This Mishnah addresses the rebbe, principal, rav or rosh yeshivah — provide instruction to as many students as you can. The more students one teaches, the greater the rebbe will grow in learning. One grows in Torah by answering questions of students and by learning how to explain the subject matter to different minds, each of which thinks somewhat differently. The Midrash Shmuel understands that this Mishnah is an extension of an idea we find in a different Mishnah (Avos 2:7) — marbeh eitzah marbeh tevuna, the more advice, the more understanding is produced. In this context, this is understood to mean: The more one is placed in a position of providing quality advice to people, the deeper one’s understanding grows. This is something to which any experienced rav, social worker, psychologist or community activist will readily agree.

There is also a halachic side to this lesson, quoted by the Midrash Shmuel. When Rav, the great amora, was asked a question in the very complicated laws that determine whether an animal is kosher or not (the laws of hilchos tereifos), he would show it to and discuss it with many people before ruling on it. Although clearly his level of Torah erudition was far greater than that of the people with whom he was discussing the question, by explaining to them the issues involved, hearing their questions and sharing insights with them, he grew in his own depth of understanding of the topic.

More talmidei chachamim

Yet another approach mentioned by the Midrash Shmuel to explain the Mishnah’s statement he’emidu talmidim harbei provides an additional insight to the laws of chinuch. In this approach, the Mishnah is addressed to a lay person whose sons have demonstrated a particularly strong desire to grow in learning. “Do not have the attitude that since I allowed one of my sons to become a talmid chacham I do not need to encourage the others to grow in learning to the same extent. One’s other children should also be encouraged to learn to the extent that they can. And, if they demonstrate a facility in learning, one should do whatever possible to encourage them to continue.

Responsibility

Returning to the story of the melamed whose prayer brought rain on his entire city,we see the tremendous sense of responsibility this melamed felt and demonstrated for all the children in his town. This brings to mind a closely related point, also made by Rav Wolbe, based on the following passage of Gemara.

The Gemara (Makkos 11a) mentions that someone who killed a person out of negligence must remain in the city of refuge (ir miklat) until the kohein gadol dies. The Gemara asks: Why is the length of stay in the ir miklat dependent on the kohein gadol? The Gemara explains that the kohein gadol was responsible for davening that such calamities not occur.

The question is: Where do we find that the kohein gadol is responsible for davening that things don’t go wrong? Rav Wolbe explains that this is a given. Although the Torah never gives us such a commandment, it is understood that if one is responsible for educating people, automatically, this means that he davens for them. Just as  parents do not need to be told to daven for their children’s wellbeing, health, and success, a teacher, rabbi, kohein gadol or anyone else responsible for other individuals does not require to be told to daven for them. It should come naturally.

Conclusion

We have learned the importance of training a child properly in the fulfillment of mitzvos. In prioritizing our lives, we should always place the educating and developing of the future generation at the top of our list, since this is where the future of the Jewish people lies.

 

Could the Fruit on My Tree Be Orlah?

Question:

Recently, our school had several fruit trees planted for decorative and educational purposes. Someone told us that we must carefully collect the fallen fruits and bury them to make sure that no one eats them. Is there really an orlah prohibition in chutz la’aretz, and is it possible that these fully-grown trees are producing orlah fruits? If indeed we need to be concerned about orlah, do we also need to redeem the fruits of the tree in the fourth year?

Before we can answer these questions, we need to discuss the following topics:

  1. Is there a mitzvah of orlah in chutz la’aretz?
  2. Can a fully-grown tree possibly have a mitzvah of orlah? I thought orlah only applies to the first three years of a tree’s growth!
  3. Does orlah apply to an ornamental tree?
  4. Does the mitzvah of reva’ie apply in chutz la’aretz?

ORLAH

Introduction: The Torah (Vayikra 19:23) prohibits eating or benefiting from fruit grown on a tree during its first three years. Those fruits are called orlah and the prohibition of the Torah applies whether the tree was planted by a Jew or a gentile. The rules of orlah apply whether the tree grew in Eretz Yisroel or in chutz la’aretz, although many leniencies apply to trees growing in chutz la’aretz that do not apply to those growing in Eretz Yisroel (Mishnah Orlah 3:9). Orlah fruit must be burnt to guarantee that no one benefits from them (Mishnah Temurah 33b); in addition, Rav Shlomoh Zalman Auerbach, zt”l, ruled that one must remove orlah fruits as soon as they begin to grow to prevent someone from mistakenly eating them.

REVA’IE

The Torah (Vayikra 19:24) teaches that the fruit a tree produces the year following its orlah years has a unique halachic status called reva’ie. One may eat this fruit only within the area surrounded by the original city walls of Yerushalayim and only if one is tahor, a status that is virtually unattainable today, as we have no ashes of a parah adumah. However, the Torah permitted us to redeem reva’ie by transferring its sanctity onto coins that must be treated with special sanctity. After performing this redemption, the reva’ie fruit loses all special reva’ie laws, and one may eat it wherever one chooses to and even if one is tamei. We will discuss later whether reva’ie applies outside Eretz Yisroel.

Why does orlah apply in chutz la’aretz? Is it not an agricultural mitzvah that should apply only in Eretz Yisroel (Mishnah Kiddushin 36b)?

The Gemara (Kiddushin 39a; Mishnah Orlah 3:9) teaches that orlah in chutz la’aretz has a special status. Although it is true that agricultural mitzvos usually apply only in Eretz Yisroel, a special halacha lemoshe misinai teaches that the mitzvah of orlah applies in chutz la’aretz. (A halacha lemoshe misinai is a law Hashem taught Moshe Rabbeinu at Har Sinai that has no source in the written Torah.) However, this particular halacha lemoshe misinai came with an intriguing leniency.

QUESTIONABLE ORLAH

The usual rule is that in a case of doubt whether or not something is prohibited, if the prohibition is a Torah one must rule stringently and prohibit the item (Avodah Zarah 7a). Even though orlah in chutz la’aretz has the status of a Torah prohibition, the halacha lemoshe misinai teaches that any doubt concerning a chutz la’aretz orlah fruit may be treated with a unique leniency. In Eretz Yisroel, one may not purchase fruit in a market without first determining whether there is a significant possibility that the fruit is orlah. In the case of orlah from chutz la’aretz, however, one is not required to research if the fruit is orlah. Even more so, the fruit is prohibited only if one knows for certain that it is orlah; if one is uncertain, it is permitted. Thus, doubtful orlah grown in chutz la’aretz is permitted even though definite orlah is prohibited min haTorah. This is indeed an anomaly.

This leads us to our next discussion point:

FULLY GROWN ORLAH TREES

  1. Can a fully-grown tree possibly have a mitzvah of orlah? I thought orlah only applies to the first three years of a tree’s growth!

In fact, someone may actually be the proud owner of a mature tree whose fruit is prohibited min haTorah because of orlah. How can this happen?

The Mishnah (Orlah 1:3) teaches that if a tree was uprooted and replanted, its orlah count sometimes begins anew. If the uprooted tree retained enough of its soil to survive, the old orlah count remains; if the tree was past its three orlah years, its fruit is permitted. But if the tree’s soil was removed from its roots during the uprooting, it is considered as planted anew, and its orlah count starts all over. Thus, halacha can consider a fully mature tree as newly planted.

The criterion for determining whether the tree is halachically new or old is whether the tree can survive with the soil still attached to its roots. However, the Mishnah omits one important detail: for how long must the tree be able to survive with that soil on its roots? Obviously, if the tree continues to grow for a long time, the small amount of soil on its roots will be insufficient. How much soil must the tree have on its roots in order that it not lose its orlah count?

The Rishonim dispute this question, some contending that soil for fourteen days is sufficient, while others require enough soil for considerably longer (see Beis Yosef, Yoreh Deah 394; Chazon Ish, Orlah 2:10-12). Since we rule leniently on orlah questions in chutz la’aretz, one may be lenient and permit a tree that has only enough soil to live for fourteen days. In Eretz Yisroel, many poskim rule that one must follow the stricter opinion.

It is important to note that, according to all opinions, if one replanted a tree with little or no soil attached, the tree is halachically considered as newly planted, and the next three years of fruit are orlah. The Torah not only prohibits one to eat these fruits, but also to benefit from them – or even give them to a non-Jewish neighbor.

HOW COMMON IS THIS?

How often is a mature, replanted tree considered new for orlah purposes?

According to the expert I contacted:

“In most parts of the United States, fruit trees sold in late winter and very early spring are usually ‘bare-root,’ meaning no soil around the roots but rather some material, like wood shavings, just to keep them moist. Unsold trees are then potted into bucket-size pots or bags of soil. The trees begin to grow as spring progresses and the tree leafs out. The nurseryman is being perfectly honest when he says it is a three-year-old tree — except that for orlah count, it is year one because the tree was replanted without soil. This problem is very common with many varieties of fruit trees that lose their leaves in autumn, such as pears, plums, peaches, cherries, apricots and nuts.”

The same expert pointed out that there can be other orlah problems in chutz la’aretz, such as trees grafted onto a root stock that was cut down to less than a tefach above the ground. This case, which is apparently very common, is halachically orlah miderabbanan (see Sotah 43b). This would apply even with a potted tree that never lost its soil. The orlah count begins again from when the tree is replanted.

WHAT DO I ASK THE GARDENER?

When purchasing a fruit tree from a nursery or gardener, what questions should one ask?

According to the horticultural halachic expert I asked, the most common, and unfortunately little known, problem is not orlah but kilayim, mixing of species. We are referring to the problem of harkavas ilan, grafting of a fruit tree onto the stock of a different species, which also applies outside of Eretz Yisroel.  More information on this topic can be found on under the title “May a Non-Jew Own a Nectarine Tree? For That Matter, May a Jew?

In regards to orlah, both of the above-mentioned problems could, and frequently do, occur: The tree may be replanted into your yard as bare-root, or it may be grafted onto a short stock. In either case, the fruit that now grows qualifies halachically as orlah.

Other orlah problems may occur. Here is a common case: Someone purchased a tree from a nursery where the soil was still attached to its root; the tree’s root ball was wrapped in burlap and tied. (The nursery industry calls this type of tree “balled and burlapped.”) When purchasing such a tree, one should try to verify when the tree was planted, and also whether the soil ball fell off while replanting the tree, which is a common occurrence. All of these affect whether the fruits of the tree are orlah, and for how many years.

I will share with you one more case that some authorities consider an orlah problem. Some people grow fruit trees in pots and move them outdoors for the summer and back indoors for the winter. Some opinions contend that moving this tree outdoors is considered replanting it, particularly if the pot is placed on earth, and means that the fruit of this tree is always orlah!

III. ORLAH ON ORNAMENTAL TREES

If one plants a tree with no intention of using its fruit, is the fruit prohibited because of orlah?

The Mishnah (Orlah 1:1) rules that fruit growing on a tree planted as a barrier or hedge, for lumber, or for firewood is not orlah. The reason for this leniency is that the Torah states that the mitzvah of orlah applies “when you plant a tree for food” (Vayikra 19:23), and these trees are not meant for food. Perhaps, the planting of our ornamental fruit trees is included in this leniency and their fruit is not orlah?

Unfortunately, this is not true. The Yerushalmi (Orlah 1:1) rules that this leniency applies only to trees planted in a way that makes it clear to an observer that they are not planted for their fruit. Examples of this are trees planted too close together for the proper growth of their fruit, or trees pruned in a way that the lumber will develop at the expense of the fruit. However, people usually do not grow ornamental trees in a way that demonstrates that they have no interest in the fruit.

Most poskim rule like this Yerushalmi (Rosh, Hilchos Orlah 1:2; Tur Yoreh Deah 294), including the Shulchan Aruch (Yoreh Deah 294:23). (Note that the Rambam [Maaser Sheni 10:2] does not quote this Yerushalmi as normative halacha. Those interested in researching why the Rambam seems to ignore the Yerushalmi should research the explanation of the Rashas to the Yerushalmi and the comments of the Beis Yosef on the above-quoted Tur.)

Many years ago, when I was a rav in Baltimore, someone asked me a shaylah that is very germane to this discussion. He had planted a hopvine and asked me whether there was an orlah or reva’ie prohibition involved in this plant. Knowing only that hops are used as an ingredient in beer, I asked him what a “hopvine” is and why one would plant it. He answered that it is an ivy runner that climbs the walls of a building. He had planted the vine primarily because he liked the ivy cover for his house, but also because he was interested in brewing his own beer, using organically grown hops. At that time I was under the impression that there was certainly an orlah problem, since he also planned to harvest the fruit. But what would happen if the planter had no interest in the fruit and was simply interested in the vine’s aesthetics? Would that absolve the vines from the mitzvah of orlah? I leave it to the reader to ponder this issue.

I subsequently discovered that hops are not an orlah concern for a totally different reason: Although hops do not need to be planted annually, halachically they are not considered trees, since their shoots die off in the winter and re-grow each year. Such a plant is called a herbaceous perennial plant, not a tree, and is not subject to the halachos of orlah. Nevertheless, the concept of planting a tree for a purpose other than using its fruit is very halachically germane.

DOES REVA’IE APPLY TO FRUITS GROWN OUTSIDE ERETZ YISROEL?

Does the mitzvah of reva’ie apply in chutz la’aretz as the mitzvah of orlah does, or is it treated like other agricultural mitzvos that apply only in Eretz Yisroel? The Rishonim debate this question and its answer depends on two other interesting disputes. The first, mentioned in the Gemara (Brachos 35a), is whether the mitzvah of reva’ie applies only to grapes or to all fruits. According to some opinions, the mitzvah of reva’ie applies only to grapes (see Tosafos, Kiddushin 2b s.v. esrog); according to a second opinion, it applies to all fruits (see Brachos 35a); and according to a third approach, the mitzvah applies min haTorah only to grapes, but it applies midirabbanan to all fruits (see Tosafos, Kiddushin 2b s.v. esrog).

A second dispute is whether the mitzvah of reva’ie applies outside the land of Israel, like the mitzvah of orlah, or whether it follows the general rule of most other agricultural mitzvos and applies only in Eretz Yisroel (Tosafos, Kiddushin 2b s.v. esrog and Brachos 35a s.v. ulimaan; Gra, Yoreh Deah 294:28). The logical question here is whether reva’ie is an extension of the mitzvah of orlah, in which case the halacha lemoshe misinai that orlah applies in chutz la’aretz extends to reva’ie. On the other hand, it may be that reva’ie is a separate legal concept, totally unrelated to the mitzvah of orlah. If the latter is true, reva’ie should be treated like any other agricultural mitzvah and would not apply in chutz la’aretz.

We should bear in mind that even if we conclude that reva’ie applies in chutz la’aretz, it applies only when these fruits are definitely obligated in reva’ie. If the fruit might be from a later year, one may eat the fruit without any kashrus concern. If the chutz la’aretz fruit may be third year (orlah) or may be fourth (reva’ie), one may be lenient and redeem the fruit as one treats reva’ie.

How do we rule?

There are three opinions among the poskim:

(1) Reva’ie applies to the fruit of all trees growing outside Eretz Yisroel.

(2) Reva’ie applies only to grapes, but not to other fruit trees of chutz la’Aretz. This opinion assumes that since there is an opinion that even in Eretz Yisroel reva’ie does not apply to species other than grapes, one may be lenient with regard to chutz la’aretz and treat the fruits as a safek.

(3) Reva’ie does not apply in chutz la’Aretz.

These last poskim contend that the halacha lemoshe misinai forbidding orlah in chutz la’aretz applies only to orlah, but not to reva’ie, which is a separate mitzvah. Concerning reva’ie, we follow the general rule that agricultural mitzvos apply only in Eretz Yisroel, thus exempting these fruits from the mitzvah of reva’ie.

How do we paskin?

Shulchan Aruch (Yoreh Deah 294:7) quotes the first and third opinions, but rules primarily like the first opinion, that the mitzvah of reva’ie does apply outside of Eretz Yisroel. Rama and Gra both rule like the second opinion that it applies only to grapes outside of Eretz Yisroel and not to other fruits. Therefore, Ashkenazim may be lenient and need not redeem fourth-year fruits grown outside of Eretz Yisroel except for grapes, whereas Sefardim must redeem them.

CONCLUSION

Note that the Torah states: And in the fourth year, all its fruit shall be holy for praises to Hashem. Only in the fifth year may you eat its fruit – therefore, it will increase its produce for you, for I am Hashem your G-d (VaYikra 19:23- 25). We see that Hashem, Himself, promises that He will reward those who observe the laws of the first four years with abundant increase in the tree’s produce in future years. May we soon see the day when we can bring our reva’ie and eat it betaharah within the rebuilt walls of Yerushalayim!

The author thanks Rabbi Shmuel Silinsky for his tremendous assistance in providing agricultural information for this article.

 

Must I Keep the Mohel?

Since the beginning of parshas Tazria discusses the mitzvah of bris milah, it is certainly an appropriate week to discuss:

Must I Keep the Mohel?

Case #1:

A Case of Mistaken Identity

Yehudit and Yehuda Newparents decided which mohel they intended to employ, but did not know his telephone number. At the hospital, they asked someone for his phone number, and called to make arrangements. However, when the mohel came to check the baby before the bris, Yehuda realized that this was not the mohel he had intended to use. Could he now use a different mohel?

Case #2:

Billy Rubin’s Bilirubin

Zev Rubin, whose old friends still sometimes call him Billy, asked Reb Leizer Izmil to be the mohel for his son’s bris. However, Billy Rubin’s newborn son had a borderline high bilirubin count, high enough that some mohalim would postpone the bris, whereas others would consider it safe. Billy’s posek ruled that the bris should be performed on the eighth day, but Reb Leizer would not perform the bris until the count drops. May Billy forgo Leizer the razor and instead ask a different mohel to perform the bris on the eighth day?

Case #3:

The Busy Mohel

Avraham has used Reb Moshe as the mohel for his previous sons, and would like to use him for his newborn. However, Reb Moshe is already booked by other families and will not be available until later in the day than Avraham would like to make his bris. Should he wait for Reb Moshe, or use a different mohel who is available earlier?

Introduction:

Although all the names have been changed, each of the above situations is an actual case that I know of. The critical issue in all these questions is whether someone who asked one mohel to perform his son’s bris may then ask a different mohel to do so. Of course, the immediate question is why should one not be able to do so? Isn’t one permitted to switch one’s lawyer, doctor, or accountant, if one chooses?

To introduce our discussion, let me chronicle an event that transpired almost eight hundred years ago. A newborn baby was ill, and it was obvious that the bris would be delayed for several weeks. The father promised the local mohel, Rabbi Levi, that he would be honored with performing the bris.  Rabbi Levi, who was responsible for certain regional communal matters, left on a trip to attend to these responsibilities, assuming that he would return by the time the baby would be ready for the bris. Thank G-d, the baby recuperated faster than expected, and now the father wanted to perform the bris, but had no way of reaching Rabbi Levi. (Remember that cellular phone technology was not that advanced in the thirteenth century.) In order to guarantee that his son’s bris would take place as soon as possible, the father brought a mohel from a different town, promising the second mohel that he would perform the bris whether the first mohel returned on time or not. On the day that the baby was healthy enough for the bris, both mohalim showed up in town, and the question was: Which mohel should be awarded with the mitzvah, the mohel who traveled specially for the bris, or the mohel who had earlier been promised the mitzvah?

Which Mohel should I use?

This question was referred to the Maharam of Rottenberg (the famed “captive rabbi,” who was the posek hador at the time) for a decision. The Maharam quotes Rabbeinu Tam who ruled that once someone asked a mohel to perform a bris, he may not switch and offer the mitzvah to another mohel. Before explaining the basis for Rabbeinu Tam’s ruling, we need to introduce two halachic factors:

Don’t Charge for a Mitzvah

According to halacha, one may not charge for performing a mitzvah (Bechoros 29a; Nedarim 37a). (One may charge for the loss of time from one’s livelihood that resulted. A full treatment of this topic is beyond the focus of this article.) Therefore, since a mohel may not charge to perform milah, he is performing it for the sake of the mitzvah. (The prevalent custom is to provide the mohel with a gift for his services.)

Keep your Word

The Torah says Moznei tzedek, avnei tzedek, eifas tzedek, vehin tzedek yihyeh lachemYou must have honest weights, honest weighing stones, an honest eifah [a unit of dry measure] and an honest hin [a unit of liquid measure] (Vayikra 19:36). The word used by the Torah, hin, however, is similar to the word hein, which means yes. The Gemara understands this to allude to: Your “yes” should always be honest, meaning that one should be true to one’s word, even when no contract was created (Bava Metzia 49a). This is an extension of the idea conveyed by the Navi: She’eiris Yisrael lo yaasu avlah velo yedabru chazav velo yimatzei befihem leshon tarmis — The remnant of Israel does not perform corruptive deeds and does not speak falsehood, nor will you find in their mouths a deceptive tongue (Tzefaniah 3:13). This concept is often shortened in halachic reference to She’eiris Yisrael lo yaasu avlah¸ and refers to the ethical responsibility to be true to one’s word.

The Gemara’s conclusion is that someone who offered a second person a small gift is required to be true to his word. Nevertheless, should the giver renege, the proposed recipient has no claim. A Jew is obligated to keep his word, but this mitzvah does not create a liability against him.

Major Gift

The halacha is different if someone promised to provide a major gift. When one offered a major gift, the potential recipient does not necessarily expect that he will receive it; it is therefore not considered a violation of halacha to reconsider what one wants to do, should circumstances change.

Changing the Mohel

Putting both ideas together, Rabbeinu Tam concludes that once I offered a mohel the opportunity to perform the mitzvah, I cannot change to a different mohel. From my perspective, choosing one mohel over another qualifies as a “small gift,” that I am required to honor. As explained above, although the father may not change mohalim, should he do so, the first mohel has no claim against either the second mohel or the father, even though the father did the wrong thing by changing mohalim.

Which Mohel?

The Maharam concludes that since the first mohel has now returned, the father is required to ask him to perform the bris, since the second mohel was authorized to perform the bris only should the first mohel be unavailable (Teshuvos Maharam quoted by Beis Yosef, Yoreh Deah 264). The Gra explains that since one is not supposed to change mohalim, the second mohel is only being asked if the first mohel would not be available.

Where is Yossele?

At this point, we can address Yehudit and Yehuda Newparents’s predicament, in which the mohel they had called was a perfectly competent mohel, but he was not the mohel they had intended to use. The story that happened was a bit humorous. I attended the bris of people I knew, and asked them how they knew the mohel that they had used. Yehuda told me that he would tell me the story about their choice of mohel after the bris.

The Newparents had decided to use the international renowned “Yossele the mohel” of Yerushalayim (now, zt”l, of blessed memory), but, like most people, did not know Yossele’s family name (Weisberg). Yehudit asked one of the observant nurses at the hospital if she knew the phone number of “Yossele, the mohel,” and, knowing how busy Yossele can be, she immediately called and reserved Yossele. When the mohel arrived to check the baby before the bris, Yehuda realized that this was not the mohel he had expected. Before the mohel left, Yehuda asked if he had a business card, and his perusal confirmed his suspicion. Indeed they had called a mohel named Yosef, but he was not the famous “Yossele, the mohel.”

Now, a bit flustered that he had arranged for an unknown mohel to circumcise his son, Yehuda made inquiries and determined that, indeed, Yosef the mohel appeared to be qualified. Still, Yehuda was faced with a halachic question. Could he change mohalim, since he had never intended to ask this Yosef to be his son’s mohel?

Yehuda called his rav to ask whether he would be permitted to change the mohel. The rav ruled that although Yehuda could change the mohel, since Yosef the mohel was indeed a qualified mohel, he should not change mohalim, as this might offend the mistaken mohel.

By the way, the original Yossele the mohel wrote a four-volume encyclopedia on bris milah, called Otzar HaBris, in which he quotes that one may switch to a different mohel if the second mohel is more expert or a bigger tzadik (Volume 3, page 188, quoting Migdal Oz). So, according to Yossele the mohel, the Newparents could have used Yossele the mohel instead of Yosef the mohel whom their rav told them to use. Obviously, their rav disagreed, and they did the proper thing by following his directions.

Dad surprisingly shows up at his own son’s bris

The Yaavetz discusses the following case: The father of the newborn is himself a mohel, but he thought that he would not be able to be at his own son’s bris, and therefore arranged for a different mohel to perform the mitzvah. In the end, the father was able to attend. Is it a violation for him to perform the bris himself? The Yaavetz rules that performing the bris himself is a major gift, and that he may perform the mitzvah himself (quoted in Sefer HaBris of Rav Moshe Bunim Pirutinsky, page 4). The idea is that someone who cannot perform the mitzvah himself will anyway need to ask a mohel to perform it for him, so which mohel he chooses is a “minor” gift. However, when he is able to perform the mitzvah himself, having someone else perform it instead is the loss of a major gift on which halacha permits him to renege.

Zeide surprisingly shows up at his grandson’s bris

Dovid is learning in kollel in Eretz Yisrael in an area where it is not easy to procure a mohel for a Shabbos bris. His father, who lives in America, is a mohel with a very busy practice. When Dovid’s son was born on Shabbos, his father told him that he would be unable to arrive for the bris because of other commitments, so Dovid arranged for a local mohel to be available. Subsequently, Dovid’s father made arrangements to come for the bris. Is Dovid permitted to switch mohalim and have his father perform the bris?

The rav who ruled on this shaylah held that it is considered a fulfillment of kibud av for the baby’s father to have his own father perform the bris, and therefore, switching mohalim is permitted.

Disputed Bilirubin

At this point, we can discuss Billy Rubin’s bilirubin shaylah. The Gemara rules that if a baby is somewhat jaundiced, a common and not serious condition among newborns, one should delay performing the bris until the baby is well (Shabbos 134a). A dispute among contemporary rabbonim is: at what point does one consider the child to be mildly jaundiced. The diagnosis involved is based on certain physical symptoms and the measure of bilirubin in the blood. (Bilirubin is the pigment [or chemical] that causes jaundice. A higher bilirubin score results in a greater degree of jaundice.) Chassidisha rabbonim and mohalim tend to require a lower bilirubin score until they feel the child is ready for the bris, whereas Litvisha rabbonim and mohalim often feel that the threshold for safety to allow the performance of the bris is higher, and that babies whose bilirubin is in the middle range should not be deprived of having a bris in the correct time.

Billy Rubin follows Litvisha practices, but had asked a well respected chassidisha mohel, Reb Leizer, to perform the bris. A day before he was expecting the bris, the mohel examined the baby and felt that the bris should be delayed until all symptoms of jaundice disappeared.

Billy mentioned this to his posek, who was not convinced that the bris should be delayed, and instructed him to bring the baby to a different mohel, a well respected Litvisha mohel, to check whether the bris could be performed on the eighth day. The second mohel saw no problem with performing the bris on the eighth day, but to be on the safe side, had them take the baby for a bilirubin test. The second mohel felt that the results of the bilirubin test also did not warrant delaying the bris.

This placed Billy in an uncomfortable position, since his original, chosen mohel still felt that the bris should be postponed. Should Billy use a different mohel so that he can make the bris on the eighth day? Did this not make Billy violate she’eiris Yisrael lo yaaseh avlah, by going back on his word to honor Reb Leizer with wielding the razor?

The posek held that changing mohalim in order to perform the bris on the eighth day is a “major gift” for which one does not violate she’eiris Yisrael lo yaaseh avlah.

Similarly, in case #3, where the mohel who was used for the older sons will not be available until later in the day than one wants to perform the bris, I know rabbonim who ruled that this provides adequate reason to switch mohalim. Since one should perform a bris milah as early in the day as possible, because of the idea of zerizin makdimim lemitzvos, one should perform a mitzvah with alacrity, performing it with zerizus is a valid reason to switch mohalim.

Conclusion

Sometimes when a person is involved in performing a mitzvah, he forgets that other considerations, such as keeping one’s promise or offending someone, may be more important. In this particular mitzvah, we see the interplay of both factors, and how the poskim of the generations dealt with these issues.

Which Mitzvah Should We Drop?

What do you mean that we need to drop a mitzvah? Drop it from what?

And what does this question have to do with this week’s parshah?

To understand the question properly, we need to study some background material. The Gemara (Makkos 23b) teaches that Hashem commanded 613 mitzvos, 365 negative mitzvos (mitzvos lo saaseh) and 248 positive ones (mitzvos aseh), although it does not list them. Yet we know that there are thousands of places that the Torah commands us what to do. Obviously, most of these are not counted; but which ones? And, more so, if the Gemara mentions that there are 613 specific mitzvos, this implies that it is important to identify them. This last question led many early authorities to calculate exactly what the 613 mitzvos are. In fact, the Geonim and Rishonim authored a vast literature debating and categorizing what exactly comprises these 613 mitzvos.

Two Early Counts

Of the lists that date back to the days of the Geonim, one is authored by Rav Saadiah Gaon. He wrote a poem in which he listed all the mitzvos, but, of course, did not explain why he counted certain commandments as mitzvos, but not others. In pre-war Europe, a talmid chacham of note, Rav Yeruchem Fishel Perla, made it his life’s project to analyze the mitzvah list of Rav Saadiah and compare it with the other lists and opinions that we find among the Geonim and Rishonim. It is rumored that it took Rav Perla thirty years to write the work. The three-volume magnum opus is a classic, if underutilized, resource.

Baal Halachos Gedolos

The Rambam mentions that the accepted counting of the 613 mitzvos prior to his writing Sefer Hamitzvos was that of the Halachos Gedolos, a halachic work authored by Rav Shimon Kaira in the era of the Geonim, which is usually referred to as Behag, short for Baal Halachos Gedolos. (Although the Behag is often cited as the work of Rav Yehudai Gaon, the work quotes Rav Yehudai Gaon many times, so he obviously could not be the author.) Subsequent to the Behag’s organizing a list, many other authors followed his approach and others made minor adjustments to his list. However, it appears that until the Rambam penned his Sefer Hamitzvos, no one disputed the basic approach that Behag used to determine what counts as a mitzvah. In addition, many liturgical poems were written based on his list.

Will the Real Mitzvah Please Stand Up?

The Rambam disagrees sharply with the Behag’s list, and he wrote much of his work, the Sefer Hamitzvos, to clarify what the 613 mitzvos really are. The Rambam even mentions that many piyutim were written, in his opinion in error, based on the Behag’s list, but he does not fault the authors involved, noting that they are poets and not rabbis (Introduction to Sefer Hamitzvos).

What significance is there to whether something is a mitzvah?

Although many authors discuss what exactly is included in the count of the 613 mitzvos, it is important to note that few of them actually discuss reasons why it is important to know them — other than to understand the Gemara’s statement that I quoted above.

The Rambam, however, does explain why he listed the mitzvos. In his introduction to Sefer Hamitzvos, he describes how he decided to write a work that would include all of the halachos of the Torah without the sources and debate, a work that he eventually did write and called the Mishneh Torah. The Rambam describes his deliberation concerning how to structure the Mishneh Torah and his decision to organize everything according to related mitzvah topics, rather than follow the order of the Mishnah. After deciding how to organize the Mishneh Torah, the Rambam describes that he then decided to include an introduction before each section, in which he would list the mitzvos whose laws he would be discussing.

Why the Sefer Hamitzvos?

At this point, the Rambam notes a concern. Prior to his time, the commonly used work listing the 613 mitzvos was the Behag. This meant that if the Rambam explained the mitzvos involved in each section of his Mishneh Torah, and his list of mitzvos differed from that of the Behag, he needed to explain why he had departed from accepted ways. The Rambam decided that his Mishneh Torah would not be complete if he did not list the mitzvos, and that his mitzvah list would be rejected, if he did not first explain what his rules were. For this reason, the Rambam explains that he wrote the entire Sefer Hamitzvos as an introduction to his Mishneh Torah to clarify the rules that determine what counts as a mitzvah and what does not. In a way, the Rambam’s writing of the introduction, the Sefer Hamitzvos, was bolder and more innovative than his writing either the Moreh Nevuchim or even the Mishneh Torah itself, since the Sefer Hamitzvos disputed a theretofore completely accepted system.

Although other authors dispute parts of the Rambam’s system, subsequent to his writing the Sefer Hamitzvos and the Mishneh Torah, the Jewish people have, for the most part, accepted his list and his rules. For example, a later work written by one of the baalei Tosafos, the Sefer Hamitzvos HaGadol, usually called by its Hebrew abbreviation, the Smag, compiled his own list of the 613 mitzvos. Although he disputes the Rambam’s conclusions on a number of occasions, he still follows most of the Rambam’s basic definitions as to what comprises a mitzvah and what does not. His disagreements with the Rambam are, for the most part, on specific interpretations and applications, not on the basic rules.

The Sefer Hachinuch

The most familiar list of the 613 mitzvos is that of the Sefer Hachinuch. Actually, this author did not develop his own count of 613 mitzvos, as he mentions, himself, several times in his work. Rather, he followed the Rambam. However, whereas the previous mitzvah counters, Rav Saadiah, the Behag, the Rambam and the Smag, all listed the mitzvos in a logical pattern, the Sefer Hachinuch rearranged the Rambam’s list, numbering each mitzvah according to its appearance in the Torah. He further introduced each parshah with its list of mitzvos. The Sefer Hachinuch’s reorganized list is the most commonly used today to count the 613 mitzvos. By the way, although it is important to know and understand the 613 mitzvos, there is no halachic significance in knowing the chronological number associated with a particular mitzvah. For this reason, there is no reason to memorize the mitzvos according to the number assigned them by the Sefer Hachinuch, although I am aware that many schools have made this an educational project.

This Week’s Mitzvos

At this point, I can explain what I meant about dropping a mitzvah. In this week’s parshah, Vayikra, the Sefer Hachinuch counts sixteen mitzvos, eleven positive and five negative ones. The problem is that, according to most authorities, both he and the Rambam should have counted one more negative mitzvah.

Which mitzvah are they accused of omitting?

In the course of the parshah, the Torah mentions many types of korbanos, some of animals, some of birds, and some of flour. When the olah offering is placed on the mizbei’ach, the Torah requires that it first be cut up into large pieces, similar in size to the large pieces of meat that a butcher may receive. One is not permitted to place small pieces on the mizbei’ach, nor may one place the entire carcass on the mizbei’ach without first cutting it into large pieces.

However, when the Torah discusses offering an olah that is a bird, usually called the olas ha’of, the halachah is different, and one may place the entire bird on the mizbei’ach at one time, just as one might barbecue an entire bird at once. What happens if the kohen chose to cut the bird in half before placing it on the mizbei’ach? According to the Rambam, one may separate the bird into parts, if one chooses (Hilchos Maasei Hakorbanos 6:22).

However, most authorities prohibit cutting the bird in half, contending that doing so violates one of the 365 negative commandments of the Torah (Behag; Yerei’im). Thus, in their opinion, one who severs the bird commits a punishable offense, approximately equivalent to wearing shatnez or eating non-kosher!

Lo Yavdil

These two opinions stem from different interpretations of the Torah’s instruction “lo yavdil” (Vayikra 1:17). Does the Torah mean, He (the kohen processing the olas ha’of) is not required to separate it, or does the Torah mean, He shall not separate it.

Since the Rambam interprets the words according to the first explanation, and therefore rules that one may cut up the bird, he does not count this as a mitzvah, and the Sefer Hachinuch follows this approach. As a result, when he counts mitzvos taught in this week’s parshah, he counts sixteen mitzvos, eleven positive and five negative ones. If this mitzvah is counted, there would be seventeen mitzvos, eleven positive and six negative ones.

Explaining Our Question

We can now explain our opening question about dropping a mitzvah. In general, we follow the Rambam’s count of mitzvos. But in this instance, the Rambam is a minority opinion, and the later authorities contend that we should not follow his approach, but we should count lo yavdil as a lo saaseh (Malbim; Sfas Emes, Zevachim 64a; To’afos Re’im; Hirsch; Rav Yeruchem Fishel Perla’s commentary of Rav Saadiah, Lo Saaseh 194). That means that we have a total of 614 mitzvos, the Rambam’s 613 plus this mitzvah, or, even more specifically, we will have 366 negative mitzvos, rather than the 365 that the Gemara mentions. Obviously, we have counted something as a mitzvah that we should not have! We need to determine which negative mitzvah counted by the Rambam will be removed from the list to make room for this one.

Which mitzvah is volunteering to be demoted or deleted? Since no mitzvah that the Rambam selected has volunteered to resign, we have the unenviable responsibility of deciding which one to remove.

Anyone want to assume this responsibility? I am reminded of the words of the eighteenth century English poet, Alexander Pope: “Fools rush in where angels fear to tread.”

Of course, I am not advising that we rewrite any part of the Sefer Hachinuch. I am merely suggesting that we can gain educationally by exploring some candidates for de-mitzvah-ization. This certainly provides an opportunity to examine and appreciate what is involved in “counting mitzvos.”

Watch that Mikdash!

One lo saaseh proposed deals with the Torah’s requirement that the kohanim and the levi’im guard the Mishkan/Beis HaMikdash by posting watchmen in various places. Just as Buckingham Palace has a military detail guarding the monarch’s residence, so too, the “palace” that we erect in Hashem’s honor must have an honor guard (Rambam, Hilchos Beis Habechirah 8:1).

This requirement would appear to be a positive mitzvah: Safewatching the holy place. Yet, in observing this requirement, the Rambam and the Sefer Hachinuch (Mitzvah 391) count both a positive mitzvah, to maintain the watch (aseh 22; Sefer Hachinuch, Mitzvah 388), and a negative one, not to abandon the guard (Rambam, Hilchos Beis Habechirah 8:3; Sefer Hamitzvos, lo saaseh 67; Sefer Hachinuch, Mitzvah 391). What is even more interesting is that the source for the negative mitzvah sounds like a positive mitzvah, since they quote the following verse in Parshas Korach: “And you shall safeguard the charge of the holy area” (Bamidbar 18:5). This expression is almost verbatim that of the previous verse, which is quoted as the source for the positive mitzvah, “And they shall safeguard the charge of the holy area” (Bamidbar 18:4). Indeed, this is presumably the reason why other Rishonim count this only as a positive command and not as a negative one (Smag).

To explain the position of the Rambam, the Sefer Hachinuch and the Mahari Korkos note the Gemara that states that the word hishameir, Guard, always introduces lo saaseh mitzvos, and both the Sefer Hachinuch and the Rambam quote a Medrash Halachah that explains that the repeated verse is to teach that this mitzvah is both a positive mitzvah and a negative one. Many later authorities debate whether to accept this conclusion of the Rambam, and offer other interpretations of this Medrash (Birkei Yosef, Orach Chayim 30:1).

There are many other possible choices of “disputed mitzvos,” ones that some rishonim and others do not, but I will leave this discussion for another article.

Conclusion

Should one count the mitzvah of lo yavdil in this week’s parshah as one of the 613 mitzvos? According to most authorities, one should. If the follow-up question is, “But then we have 366 lo saaseh mitzvos, and the Gemara says that there are only 365,” I would answer that although it is not our place to determine definitely which the 613 mitzvos are, we should study the topic thoroughly to see which mitzvos are disputed. We have now seen some possible choices, and this exercise has provided an opportunity to understand more deeply what it means that we count something as a “mitzvah.”

Why the Bird?

Rav Samson Raphael Hirsch (Vayikra 1:17) notes that the many laws involved in the processing of an olas ha’of are at times opposite to those of other korbanos. To explain the many anomalous rules pursuant to this particular korban, he notes that Tanach often uses a bird as a metaphor for an imperiled, defenseless person in flight from his pursuer, and that an olas ha’of represents how a forlorn, suffering individual relates to Hashem because of his fate. The imperiled can use the anguish itself as a springboard for ascent and advancement, by clinging to the heights of Torah ideals even in this predicament. This korban is to teach that even when life does not go the way we would like it to, one still yearns to become closer to Hashem.