The Heter Mechirah Controversy

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

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

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

Let me explain the halachic issues that this product entails.

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

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

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

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

WHAT IS HETER MECHIRAH?

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

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

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

HISTORY OF MODERN HETER MECHIRAH

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

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

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

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

THE BEGINNINGS OF A CONTROVERSY

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

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

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

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

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

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

WHAT CHANGED?

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

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

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

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

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

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

SELLING ERETZ YISROEL

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

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

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

FRUITS VERSUS VEGETABLES

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

SEFICHIM

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

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

WHY NOT FRUIT?

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

PERENNIALS

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

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

“GUARDED PRODUCE”

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

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

BACK TO OUR CARROT MUFFINS

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

What would you advise?

How Much Must I Bensch?

Question:

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

Introduction

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

Bensching in the Torah

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

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

Three aspects

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

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

Borei Nefashos

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

Bracha mei’ein shalosh

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

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

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

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

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

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

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

Fourth bracha

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

Harachaman

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

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

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

Three brachos or one?

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

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

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

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

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

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

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

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

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

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

Al hamichyah

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

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

Uncertain identity

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

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

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

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

Conclusion

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

Honor the Elderly!

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

Question #1: Respect your elders?!

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

Question #2: Age before wisdom?!

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

Question #3: Elder older?

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

Introduction

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

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

Elder or older?

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

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

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

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

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

Why is a talmid chochom exempt?

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

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

Age before wisdom?!

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

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

An older woman

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

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

Two elderlies

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

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

How old?

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

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

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

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

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

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

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

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

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

No respect

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

When do you stand?

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

Why four amos?

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

Don’t lose work time

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

Standing up while learning Torah

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

Transported

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

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

At this point, we can address our opening question:

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

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

In shul or while davening?

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

Your whole house

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

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

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

Discordant scholar

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

Can’t see

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

Conclusion

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

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

My Vows I Shall Fulfill #2

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

Question #2: What is hataras nedarim?

Question #3: How does Kol Nidrei work?

Question #4:

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

Answer:

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

(1) Nedarimvows

(2) Shevuosoaths

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

(4) Pledges to tzedakah, intending to donate charity

(5) Stringencies – performing a halachic chumra

(6) Doing something three times

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

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

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

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

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

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

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

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

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

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

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

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

How does a woman perform hataras nedarim?

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

Hataras nedarim on erev Rosh Hashanah

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

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

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

Mesiras moda’ah

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

Kol Nidrei

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

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

Conclusion

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

My Vows I Shall Fulfill

Question #1: Quiz question

Can performing a mitzvah become a liability?

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

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

Question #3: A frum question

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

Answer:

What is a neder?

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

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

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

Different types of obligations

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

(1) Nedarim – vows

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

Example:

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

(2) Shevuos – oaths

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

Example:

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

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

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

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

Example:

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

(4) Kabbalas tzedakah, intending to donate charity

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

(5) Performing a stringency

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

Examples:

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

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

(6) Three times

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

Saying “bli neder

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

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

Example:

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

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

Saying “bli neder” even for a non-mitzvah

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

Example:

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

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

Don’t delay paying

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

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

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

What is hataras nedarim?

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

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

How does one undergo hataras nedarim?

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

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

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

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

The difference between a neder and a shevuah

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

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

The Holey Donut

Question #1: Holey Blessings

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

Question #1: Chanukah Donuts

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

Question #3: Non-Jewish Consumers

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

Introduction:

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

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

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

The Torah and challah

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

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

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

Bread or dough?

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

Terumah or challah?

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

Consumer or manufacturer?

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

Bread or dough

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

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

Terumah or challah

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

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

Dough versus batter

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

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

Intent

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

Batter up

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

Mezonos or hamotzi?

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

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

Baking part

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

The passage reads as follows:

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

Rabbeinu Tam and Rash

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

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

The Maharam Rottenberg

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

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

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

Which brocha when you eat?

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

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

How do we rule?

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

How do we rule concerning challah?

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

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

Non-Jewish consumers

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

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

Consumer or owner

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

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

Conclusion

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

Birkas Kohanim

Question #1: Why is this bracha different?

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

Question #2: Hoarse kohein

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

Question #3: The chazzan duchening

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

Answer:

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

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

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

Nesi’as kapayim

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

An unusual bracha:

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

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

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

“With love”

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

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

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

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

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

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

Brochos cause longevity

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

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

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

Hoarse kohein

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

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

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

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

Why retzei?

Why should the kohein leave the shul before retzei?

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

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

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

Washing hands

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

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

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

The chazzan duchening

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

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

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

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

Conclusion

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

What Is a Tree?

Question #1:

Eggplants grow on a woody stem. Does this make the eggplant a tree and prohibit the fruit that grows during its first three years as orlah or not? Although this idea may seem strange to most people, at least one prominent posek held that eggplant is prohibited as orlah.

Question #2:

What is the correct beracha to recite when smelling carnations, lilies, or mint?

Question #3:

What is the correct beracha to recite before eating papaya, cane sugar, or raspberries?

Question #4:

May someone plant tomatoes in his vineyard in Eretz Yisroel?

Although these questions seem completely unrelated, each query revolves around the same issue: What is the halachic definition of a tree?

It is usually easy to identify a tree. We know the obvious characteristics that define oak and apple trees, and it is clear that trees differ from plants that grow in a vegetable patch. However, from a halachic standpoint it is not always obvious whether many of Hashem’s botanical wonders are trees or not.

It is critical to determine what fits the definition of a tree in order to clarify the following halachic issues:

1. What beracha one recites on its fruit.

2. What beracha one recites on its fragrance.

3. Whether the prohibition of orlah applies to its fruit.

4. How severe is the prohibition to destroy it (bal tashchis).

5. There are several agricultural halachos concerning kelayim, shemittah, and maaser, all of which are relevant only in Eretz Yisroel.

Let us clarify these five areas of halacha before we discuss the main focus of our article, in order to understand the ramifications of why we must know which plants are considered trees.

1. What beracha one recites on its fruit.

As the Mishnah teaches, the beracha before eating the fruit of a tree is borei pri ha’eitz, whereas the beracha on fruit that grows from the ground, such as peas, beans, cucumbers, and melons, is borei pri ha’adamah. (The botanical definition of a fruit is the fleshy part [technically, the developed ovary] of the plant that nourishes the developing seed. Many of the foods that we colloquially call “vegetables,” are in reality “fruits of the ground.”) Thus, it is important to ascertain how certain fruits such as bananas, papayas, and berries grow in order to determine whether they grow on what is halachically classified as a tree, in which case their beracha is ha’eitz, or whether the plant upon which they grow is not a tree and the correct beracha is ha’adamah.

2. What beracha one recites on its fragrance.

Chazal established five different berachos on fragrances, one of which is “borei atzei besamim,” “He who created pleasant-smelling wood (or trees),” and another, “borei isvei besamim,” “He who created pleasant-smelling grasses.” Just as one must recite the correct beracha on a food before eating it, so it is important to recite the correct beracha on a fragrance before smelling it. We will see later that whether the closest English translation of atzei besamim is pleasant-smelling wood or pleasant-smelling trees depends on an interesting dispute.

Determining whether the correct beracha is atzei besamim or isvei besamim is even more significant than determining whether the correct beracha is borei pri ha’eitz or borei pri ha’adamah for the following reason: If one recites borei pri ha’adamah on a fruit that should have been borei pri ha’eitz, one fulfills the minimal requirement bedei’eved (after the fact) and should not recite an additional beracha of borei pri ha’eitz. The reason for this is that every tree grows from the ground — thus praising Hashem for “creating the fruit of the ground” when eating a fruit that grew on a tree is not inaccurate. Therefore, someone who is uncertain whether a certain fruit is “of the tree” or “of the ground” should recite borei pri ha’adamah before eating it.

However, when in doubt whether to recite atzei besamim or isvei besamim on a specific fragrance, one may not recite either beracha. This is because trees and grasses are mutually exclusive categories — if something is a grass, it is not a tree and vice versa. Thus, reciting the beracha praising Hashem for creating pleasant-smelling grasses before smelling a tree is a beracha levatalah, a beracha said in vain, because it is inaccurate.

When someone is uncertain whether a plant is considered a tree or a grass, he should recite a third beracha, borei minei besamim, “He who created types of pleasant-smelling items,” even though this is certainly not the optimal beracha on this fragrance. This is equivalent to reciting the beracha of shehakol before eating an apple. One has fulfilled the mitzvah, albeit not in the optimal way, since an apple “deserves” a more specific praise.

3. Whether the prohibition of orlah applies to its fruit.

The Torah prohibits eating fruit that grew within the first three years of a tree’s life. Thus, if a particular plant is a tree, the fruit produced in its first three years is prohibited; if it is not a tree, the fruit may be eaten immediately.

Although orlah is an agricultural mitzvah, it applies outside Eretz Yisroel. However, there is a major difference between orlah on fruits that grow in Eretz Yisroel and those that grow in chutz la’aretz. In chutz la’aretz only fruit that is definitely orlah is prohibited, and one may eat fruit that is questionably orlah. This fact has major halachic ramifications. There is also a mitzvah of re’vai that requires redeeming the fruit of the fourth year. Ashkenazim follow the ruling that in chutz la’aretz the laws of re’vai apply only to grapes (Rema and Gra, Yoreh Deah 294:7), whereas Sefardim require the laws of re’vai on all fruit trees.

4. How severe is the prohibition to destroy it (bal tashchis).

Destroying a fruit-bearing tree without gaining benefit in the process is prohibited min HaTorah. Although one may not destroy anything without purpose, the Rambam rules that destroying a tree is a more serious prohibition (Hilchos Melachim 6:8, 10). Some poskim explain that only destroying a tree is prohibited min HaTorah, whereas destroying other items, including plants, is prohibited only miderabbanan, and therefore would have some leniencies.

5. There are several agricultural halachos concerning kelayim in a vineyard (kil’ei hakerem), shemittah, and maaser, all of which are relevant only in Eretz Yisroel. There are also halachos related to grafting one species onto the stock of another (harkavas ilan), which applies equally in Eretz Yisroel and in Chutz LaAretz.

One may not plant vegetables in a vineyard in Eretz Yisroel because of the prohibition of kil’ei hakerem, mixing species in a vineyard (Rambam, Hilchos Kelayim 5:7), although one may plant trees in a vineyard (Rambam, Hilchos Kelayim 5:6). In addition, if something is categorized as an edible plant, one must be careful not to plant it too close to another edible plant because of kil’ei zera’im, mixing species when planting. This mitzvah does not apply to trees.

OTHER LAWS

How one determines the year in which a plant grows differs between trees and plants. The cut-off point for determining the years of tree fruits is usually determined by Tu Bishvat, whereas for plants it is Rosh Hashanah. This affects the halachos of maaser and of shemittah.

In addition, which year of the maaser cycle a fruit belongs to is determined by whether its chanatah, which refers to a stage early in the fruit’s development, took place before Tu Bishvat or after; for a plant, it is determined by whether it is harvested before Rosh Hashanah. Furthermore, a plant that grew uncultivated during the shemittah year would be prohibited because of the prohibition of “sefichin,” whereas the fruit of a tree would not be affected by this concern.

We now understand why it is important to determine whether a particular plant qualifies as a tree or not.

WHAT IS THE DEFINITION OF A TREE?

The Random House dictionary I have on my desk defines a tree as, “a plant having a permanently woody main stem or trunk, ordinarily growing to a considerable height, and usually developing branches at some distance from the ground.” If we exclude the qualifiers, “ordinarily” and “usually,” then this definition does not consider a grape vine to be a tree since it lacks height if not supported and does not develop branches some distance from the ground. Since we know that halacha considers grapes to be fruits of the tree, this definition will not suffice. On the other hand, if we broaden the definition of “tree” to include all plants that have a “permanently woody stem or trunk” we will not only include grape vines, but also probably include eggplant, pineapple, and lavender which all have woody stems. On the other hand, several plants, such as the date palm and papaya, fit the Random House definition as a tree and yet grow very differently from typical trees. Are all of these plants trees?

Having demonstrated that the dictionary definition of tree is insufficient for our purposes, let us explore sources that may give us a halachic definition. The Gemara (Berachos 40a) states that one recites borei pri ha’eitz if “when you remove the fruit, the gavza remains and produces more fruit; but if the gavza does not remain, the beracha is not borei pri ha’eitz, but borei pri ha’adamah.” What is the “gavza” that remains to bear more fruit from one year to the next?

Among the major commentaries, we find three interpretations. Rashi translates gavza as branch, meaning that any plant whose branches fall off one year and then grow again the next is not considered a tree, even if the root and trunk (or stem) remain from one year to the next. There are berries whose stem remains from one year to next, but whose branches fall off during the winter (Tehillah Ledavid, Chapter 203). According to Rashi, the correct beracha on these berries is ha’adamah.

A second opinion, that of Tosafos, explains that “gavza” is the trunk or stem of the plant that remains from one year to the next and produces fruit (Ritva, Sukkah 35a). A plant whose root remains from one year to the next, but not its stem, is not a tree.

Many perennial fruits do not have a trunk that remains from year to year. (A perennial is a plant whose root remains from one year to the next and grows each year without replanting.) A banana plant is a perennial whose entire structure above ground dies each year and then grows again the next year from the root. According to Tosafos, bananas are not trees but plants; therefore their beracha is ha’adamah, not ha’eitz, and there is no orlah prohibition.

A third opinion, that of the Rosh and the Tur (Orach Chayim, Chapter 203), explains that any perennial is considered a tree and its beracha is ha’eitz. If the plant must be replanted each year (i.e., it is an annual) to produce fruit, then the beracha is ha’adamah, not ha’eitz. According to this understanding, the correct beracha on strawberries and bananas is ha’eitz since they are both perennials (not annuals), whereas according to the other opinions, the beracha on strawberries and bananas is ha’adamah.

The Shulchan Aruch and the Rema (Orach Chayim 302:2) rule that one recites borei pri ha’eitz if there is some type of stem that remains from year to year and produces fruit, but that the beracha is ha’adamah on perennials whose stem dies each year. However, it is disputed whether the reason we recite ha’adamah is because the Shulchan Aruch concluded like Tosafos, or because it is uncertain whether the beracha should be ha’eitz (like the Rosh and the Tur), or ha’adamah (like Tosafos), and we recite ha’adamah because of this uncertainty (Maamar Mordechai 203:3). There are several halachic ramifications that result from this question as I will explain later.

IS A TREE ALWAYS A TREE?

Is the definition of a tree the same for the halachos of orlah and kelayim as it is for berachos?

Tosafos (Berachos 40a) cites a passage in Talmud Yerushalmi (Kelayim 5:7) that something may not qualify for the definition of a tree for the laws of berachos and yet be considered a tree for the laws of kelayim, whereas the Ritva (Sukkah 35a) contends that the definition of the Gemara (Berachos 40a) for berachos applies to orlah as well. Tosafos concludes that the beracha on most perennial berries is ha’adamah because the bush does not remain from year to year, even though the bushes have the status of trees concerning kelayim and therefore may be planted in a vineyard.

IS HEIGHT A FACTOR?

Are there any other factors that define a tree other than what the Gemara mentioned? Must a plant grow tall to be considered a tree?

The Magen Avraham (203:1) rules that even if a tree grows very short, the correct beracha on its fruits and berries is borei pri ha’eitz. However, the prevalent minhag is to make a pri ha’adamah on berries that grow on plants which are less than three tefachim tall (about nine or ten inches), even though they meet all the other requirements of trees. The reason for the minhag is that a plant with such short stature is not considered significant enough to be a tree (Chayei Odom 51:9; Mishnah Berurah 203:3).

However, we should note that although the custom is to recite ha’adamah on the fruit of these small perennial bushes, the fruit grown in the first three years of the tree’s life is nonetheless prohibited because of orlah (Ritva, Sukkah 35a). Cranberries would fit into this category since they are perennial, yet grow on the ground of a bog. Thus, orlah applies to them, yet their beracha is borei pri ha’adamah.

We have now covered most of our opening questions, and plan to continue this discussion in a future article.

Man himself is compared to a tree (see Rashi, Bamidbar 13:20); and his responsibility to observe orlah, terumos, and maasros are intimately bound with the count that depends on Tu Bishvat. As Rav Hirsch explains, by observing Hashem’s command to refrain from the fruits of his own property, one learns to practice the self-restraint necessary to keep all pleasure within the limits of morality.

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

More on Orlah

Question #1: Chopping Down the Cherry Tree

“A year ago, I transplanted a cherry tree in order to sell the wood, which is widely used by artists for delicate artistic carving. I see that many cherries have grown on the tree. Are they prohibited as orlah?”

Question #2: Sabra Borders

“Someone planted a sabra tree (also known as a “prickly pear,” “cactus pear” or “Indian fig”) as a natural border fence for his property, and placed a sign telling people not to help themselves to the fruit. Is there an orlah prohibition on the fruit?”

Question #3: Woody Fuel

“I live in a rural area without electricity. We run a nature resort and chop wood for heating and cooking. If I plant trees for wood, do I need to keep track of which year I plant the tree, due to orlah concerns?”

Of the many agricultural mitzvos, one of the most fascinating ones we have is orlah. Orlah roughly means that during the first three years of a tree’s growth, any fruit that grows on it cannot be eaten or benefited from. The mitzvah is unique in many ways and its laws contain some very interesting rules and applications.

One of the insights that this mitzvah provides is that it shows that the Torah requires us not to limit ourselves to the studies of religion and philosophy, or even of just Tanach and Gemara.  It is impossible to put the laws of orlah into application without an extensive scientific knowledge. An incredible number of botanical details must be understood in the practical application of this mitzvah, and observing orlah properly requires investigating these details.

As a child, I was told that orlah is a very rare mitzvah, since there are no trees that produce fruit in their first three years. Notwithstanding that the Ramban (ad locum) implies this, one cannot rely on this halachically for two reasons:

Firstly, many trees and, in particular, bushes produce fruit and berries in their first three years.

Secondly, it is possible to have orlah on trees that are older than three years.

Let us begin with this topic by examining the pesukim in which this mitzvah is presented:

Vechi savo’u el ha’aretz, u’netatem kol eitz ma’achal va’araltem orlaso es piryo, shalosh shanim yihyeh lachem arei’lim, loyei’acheil.” “And when you come to the land and you plant any fruit tree, you shall treat yourselves as restricted against the fruits; for three years they shall be restricted to you, you shall not eat them” (Vayikra 19:23).

Let us now dissect this pasuk:

“Vechi savo’u el ha’aretz,” “And when you come to the land.” What land is the pasuk talking about? We can safely assume for now that it is Eretz Yisrael.

Kol eitz ma’achal.” Since the pasuk later references “piryo,” “its fruit,” we know that the tree bears fruit. What, then, is the pasuk telling us by referring to the tree as “eitz ma’achal”?

It is telling us that the mitzvah applies only when a tree is planted for the purpose of consuming its fruit.

Allow me to explain. Here are three examples of trees that are not planted for fruit:

A. A tree planted for lumber.

B. A tree planted as a boundary marker.

C. A tree planted to produce firewood.

Regarding trees on the above list, the Mishnah (Orlah 1:1) teaches that fruits that grow during the first three years of the life of the tree are permitted. However, there is a caveat to this heter: It must be clear that the tree was not planted for its fruit.

Here is an example:

Trimming the side branches of a tree demonstrates that the tree was not planted for its fruit. When you plant a tree for fruit, the side branches are beneficial. After all, the more branches there are, the more fruit usually grow. In addition, the lower branches are easier to reach, facilitating harvesting.

Trimming the side branches, however, assures that the tree grows straight and tall, yielding taller lumber. Therefore, trimming the side branches proves that your purpose is not for the fruit.

Similarly, if trees are planted close together, that proves that they are not intended for their fruit, since spacing is important for optimal fruit growth.

Chopping down the cherry tree

“A year ago, I transplanted a cherry tree in order to sell the wood, which is widely used by artists for delicate artistic carving. I see that many cherries have grown on the tree. Are they prohibited as orlah?”

The answer is that if you cultivated the tree in a way that it is obvious that you were interested in the wood and not the fruit, even what grew in the first three years is permitted. Also see below that there might be another reason why the cherries are permitted.

Sabra borders

At this point, we can also discuss the second of our opening questions: “Someone planted a sabra tree (also known as a “prickly pear,” “cactus pear” or “Indian fig”) as a natural border fence for his property, and placed a sign telling people not to help themselves to the fruit. Is there an orlah prohibition on the fruit?”

Had the owner planted the tree only as a border, it would not be eitz ma’achal, and the fruit that grew during the first three years would be permitted. However, this is dependent on the intentions of the planter. In this instance, since the owner put up a sign telling people not to take the fruit, he is clearly interested in the fruit crop. Therefore, the fruit is prohibited.

Another exception in which the fruit is prohibited:

Even if a tree is exempt from orlah restrictions due to any of the above situations, if the owner changes his mind and begins to use the tree as a fruit tree, whatever fruit grow during the remainder of the initial three-year period subsequent to this change are prohibited as orlah.

Woody

We can also answer the third of our opening questions: “I live in a rural area without electricity. We run a nature resort and chop wood for heating and cooking. If I plant trees for wood, do I need to keep track of which year I plant the tree, due to orlah concerns?”

There are no orlah concerns if the way the tree is grown or cared for demonstrates that it is being grown only for firewood.

Continuing our analysis of the pasuk: “va’araltem orlaso es piryo.” “You shall treat yourselves as restricted against the fruits.”

Fruits only
Only the fruits of the orlah tree are forbidden. The branches and non-fruit parts of the tree are permitted. However, the entire fruit, including shells, skins, and seeds, is forbidden. Furthermore, even inedible fruit that grow from an edible fruit tree is forbidden. For example, grapes which have not or will not develop are prohibited as orlah.

Benefit
In addition to being forbidden to eat orlah fruits, we are also forbidden to derive benefit, hana’ah, from them.

How does this manifest itself in practice?

It is prohibited to make a dye from the skins or shells of orlah fruits. We may not use the seeds of an orlah fruit for coloring, nor may we use them for fertilizer or animal food. Furthermore, even more indirect methods of benefit are prohibited. Allow me to elaborate:

Let us say that I own a tree whose fruit is orlah. I am not allowed to eat its fruits, but there is no such restriction on my non-Jewish neighbor. Orlah is not one of the mitzvos that a ben noach, a non-Jewish Noahide, is required to observe. However, since the fruits are assur behana’ah, prohibited for benefit, I am not allowed to give the fruits to him, nor am I allowed to tell him to help himself. This is because when I give him a gift, I will likely make him feel indebted to me. He might be motivated to give me something in return, and that would be a benefit derived from the orlah fruit.

What, therefore, should I do with these fruits? Should I just leave them on the tree?

Rav Shlomo Zalman Auerbach paskened that to leave orlah fruits on the tree would create a stumbling block. Passersby might not realize that the fruits are forbidden, and they might eat them. His psak was to take the fruit off the tree and dispose of them in the halachically prescribed method, i.e., by burning them.

Chutz La’aretz
As we said earlier, the pasuk says “Vechi savo’u el ha’aretz,” “When you come into the land,” which we take to mean Eretz Yisrael. Why then is orlah not an agricultural mitzvah that applies only in Eretz Yisrael?


The Gemara (Kiddushin 39a) teaches that orlah in chutz la’aretz has a unique status. It is a halacha leMoshe miSinai, a halacha that we have an oral tradition dating back to Moshe Rabbeinu, and one for which we do not have a textual source in the Torah. This halacha, of orlah in chutz le’aretz, comes with an unusual leniency regarding questionable orlah, as follows:

In Eretz Yisrael, before buying a fruit, one is obligated to research and determine whether or not the fruit is orlah. When in doubt, the fruit must be treated as orlah and prohibited.In chutz la’aretz, on the other hand, one is not obligated to conduct any research. The fruit will only be forbidden if it is definitely orlah.

What is a tree?
How do we define a tree for the purposes of orlah?
While the poskim debate if the qualifications for orlah are the same as those for hilchos berachos, the qualifications for hilchos berachos give us a good starting point. The Gemara (Berachos 40a) defines a tree for the purpose of making borei peri ha’eitz as one that does not lose its trunk from year to year. According to this, if a tree trunk degenerates every year, or if it requires replanting every year, it is not halachically a tree.

However, the achronim give us further qualifications for consideration of a tree’s halachic status. For a discussion of these qualifications, I refer the reader to the articles on the website RabbiKaganoff.com, under the search words “tree” or “orlah.”

Three years

How do we calculate the three years for orlah?

Orlah is calculated in a very interesting way. If a tree is planted before the 15th of Av, its fruits that appear after the third Tu Bishvat are permitted. If the tree is planted after the 15th of Av, then only the fruits that appear after the fourth Tu Bishvat will be permitted. Thus, a tree planted before the 15th of Av, will produce permitted fruits a year earlier than a tree planted on or after the 15th of Av.

With most fruit, we calculate this based on the fruit’s first appearance. With some species however, such as olives, grapes, and carobs, this is calculated based on a specific stage of the fruit’s growth. Details of these halachos are beyond the scope of this article.

Up until now, we have discussed orlah as applying only during the first three years of a tree’s life. However, as mentioned previously in this article, it is possible to have a tree that is even older than three years and still subject to orlah.

How can this be?

The Mishnah in Orlah (1:3) teaches us that if a tree is uprooted and replanted, its orlah count sometimes starts afresh.

When the uprooted tree is uprooted along with enough soil for it to survive, the orlah count continues as it was; i.e., if the tree was past its three years, its fruit is permitted.

If, on the other hand, the tree is uprooted without enough soil for it to survive, it is viewed as if it was planted anew, and the orlah count starts from scratch.

What, then, constitutes enough soil for the tree to survive?

This is a machlokes rishonim, with some opinions defining that it means that the tree can survive for fourteen days, and other opinions requiring it to survive all the way to three years. In chutz le’aretz, since we are lenient with all orlah questions, we will rely on the opinions that require only fourteen days; in Eretz Yisrael, many poskim say that we must follow the stricter opinions.

Conclusion

In addition to the three years in which orlah is forbidden, the Torah rules that the fruit of the fourth year of a tree is holy, with the same laws as maaser sheini, that they. Both the fourth-year product, called reva’i, and maaser sheini should be eaten within the walls of Yerushalayim, and may be eaten only when we are tehorim; otherwise, the sanctity of the fruits must be redeemed, a topic I discussed in a different article.As the Torah states: “And when you come into the land and you plant any fruit tree, you shall treat yourselves as restricted against the fruits; for three years they shall be restricted to you, you shall not eat them. 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’i and eat it b’taharah within the rebuilt walls of Yerushalayim!

Anointing Oil, Part II

Question Group #1: Who?

If the shemen hamish’cha (anointing oil) is used inappropriately, is the anointer liable, the anointed, or both of them?

Question Group #2: What?

If someone produces shemen hamish’cha inappropriately, is he liable, regardless how much he produced?

Question Group #3: Where?

Where is the shemen hamish’cha poured?

Where will we find the shemen hamish’cha today?

Introduction:

Parshas Ki Sissa contains the beautiful mitzvah of processing and using the anointing oil, the shemen hamish’cha, a mitzvah with which most people are not that familiar. I should, actually, say “three mitzvos,” since the Rambam and the Sefer Hachinuch note that there are three mitzvos, one positive mitzvah (mitzvas aseih) and two negative (lo saaseh) mitzvos:

(1) A mitzvas aseih (Sefer Hamitzvos of Rambam, Mitzvas Aseih #35; Chinuch, Mitzvah #107) to manufacture, use correctly, and treat this unique anointing oil in a special way.

(2) A lo saaseh not to pour the shemen hamish’cha onto a person who is not to use it (Sefer Hamitzvos of Rambam, Lo Saaseh #84; Chinuch, Mitzvah #108). We will see, shortly, that there are four categories of people who may be anointed with shemen hamish’cha. Anointing anyone else with the shemen hamish’cha violates this lo saaseh; furthermore, it also prohibited to smear or pour the shemen hamish’cha onto the skin of any person, even someone whom it is permitted to anoint with it. Thus, the Gemara states that a kohein gadol who smears shemen hamish’cha on his leg as a balm violates the prohibition of the Torah (Kerisus 7a).

(3) A lo saaseh not to blend a recipe equivalent to the shemen hamish’cha other than that which Moshe mixed (Sefer Hamitzvos of Rambam, Lo Saaseh #83; Chinuch, Mitzvah #109).

Last week’s article devoted itself to analyzing what are the correct components and quantities of the shemen hamish’cha.

Who?

At this point, I will explain the details of the mitzvah by addressing and answering our opening questions, the first of which was: Who may be anointed with the shemen hamish’cha?

There are four categories of people who are anointed with the shemen hamish’cha:

(1) All those designated as kohanim, at the time the Mishkan was dedicated.

(2) The kohein gadol.

(3) The kohein meshuach milchamah, the kohein anointed prior to the Jewish people going to war, for the purpose of encouraging them regarding their responsibilities.

(4) A king of the Jewish people who was a descendant of David Hamelech.

We will now examine the halachos of these four categories:

Seven days of dedication

As part of the pomp and ceremony of the seven days of dedication of the Mishkan, the five kohanim at the time, Aharon and his four sons, Nadav, Avihu, Elazar and Isamar, were each anointed with the shemen hamish’cha every day (Vayikra, 3:13 and several times in Chapter 8; Kerisus 5b). During these seven days, all the vessels of the Mishkan were also anointed, daily, with the shemen hamish’cha.

This anointing was limited to the dedication week. Once the Mishkan’s dedication was complete, there was no longer any mitzvah to anoint any vessels or a kohein hedyot. The only use of the shemen hamish’cha, after this point, was to anoint people, and, as such, it was used to anoint only three people:

The kohein gadol

All future kohanim gedolim were also anointed with the shemen hamish’cha, when they assumed their position. However, approximately 25 years before the first Beis Hamikdash was destroyed, Yoshiyahu Hamelech, realizing that it was only a matter of time until the Beis Hamikdash would be destroyed and overrun,hid the aron and everything that it contained, which included the shemen hamish’cha, so that it would not be seized during the churban. The answer is that we do not know where Yoshiyahu buried it, and, until it is found, its location is an unsolved mystery. The Gemara assumes that, at some time in the future, it will be found and used (Kerisus 5b).

TheMishnah(Megillah 9b; Horiyos 11b) teaches that, in the absence of the shemen hamish’cha, there is still a kohein gadol. How is he installed into his position? Donning garments that only a kohein gadol may wear and performing the avodah in the Beis Hamikdash while wearing them elevates him to the position of kohein gadol.

Are there any differences in halacha between the kohein gadol who was anointed with shemen hamish’cha and the kohein gadol who was not? There are some halachic differences between the two, but the vast majority of mitzvos and responsibilities of the kohein gadol apply, whether or not he was anointed with shemen hamish’cha. The Mishnah (ad loc.) reports that the only difference between the two is whether he offers a special korban chatos, should he violate, negligently, a serious prohibition of the Torah. We should also note that not all tanna’im accept even this distinction between the kohein gadol who was anointed with shemen hamish’cha and one who was not (Rabbi Meir, as reported in the Gemara ad locum).

The kohein meshuach milchamah

The Torah teaches that, prior to the Jewish people going to war, a kohein hedyot was appointed, specifically, for a special role of exhorting the people prior to their going to battle and bolstering their spirit (Devarim 20:2-4). This kohein, called the meshuach milchamah, was anointed for his position with shemen hamish’cha. Halachically, he now had an in-between status – he had some of the laws of a kohein gadol and some of those of a kohein hedyot, a regular kohein (see Yoma 72b-73a; Horiyos 12b).

According to several acharonim, when there is no shemen hamish’cha, there can be no kohein meshuach milchamah. However, some acharonim note that Josephus refers to a kohein meshuach milchamah during the war against the Romans, which was several hundred years after Yoshiyahu had hidden the shemen hamish’cha (Minchas Chinuch).

Judaic kings

The kings of the Jewish nation, Shaul and Dovid, and those who continued Dovid’s lineage, could be anointed with the shemen hamish’cha. However, in this instance, there is a halachic difference between this anointing and that of the kohanim mentioned above, in two ways. First, the king was anointed with shemen hamish’cha only when there had been some dispute or controversy concerning who would become the new king. For example, since Shelomoh’s older brother Adoniyah had initially contended he would become king after Dovid Hamelech’s passing (see Melachim I, Chapter 1), Shelomoh was anointed, to verify his appointment (Kerisus 5b).

When all accepted the appointment of the new king, he was not anointed, but assumed his position, without this procedure.

The second difference between the anointing of the kohein gadol and that of the king is how the oil is applied to the head of the anointed. When a king was anointed, it was applied in a way reminiscent of a crown, whereas when a kohein gadol or kohein meshuach milchamah was anointed, the oil was applied following a different pattern. There are different girsa’os, texts,to the Gemara that explain what this pattern was, and consequently, a dispute among the rishonim as to exactly how the kohein gadol was anointed, some contending it was in the shape of a crisscross atop his head, others, that it was poured similar to three sides of a rectangle, and still others with various other understandings of the text.

We should note that, at times, a Jewish king not of the family of Dovid Hamelech was anointed, not with shemen hamish’cha, but with a different, special anointing oil that had no sanctity (Kerisus 5b).

Where?

At this point, we can answer another of our opening questions: “Where will we find the shemen hamish’cha today?”

The answer is that we do not know where Yoshiyahu buried it, and until it is found, its location is an unsolved mystery. The Gemara assumes that at some time in the future, it will be located (Kerisus 5b).

Moshiach’s arrival

Will the Moshiach require that he be anointed with shemen hamish’cha? After all, doesn’t the word “Moshiach” mean “the anointed one?”

The answer is that whether the shemen hamish’cha is found before the arrival of the Moshiach or not, he can fulfill his role.

If the oil is used inappropriately, is the anointer liable, the anointed, or both of them?

How much?

What is the amount of each of these ingredients, in modern measurements, that this mitzvah requires?

The Torah prohibition is violated only if someone uses the exact quantities of the different oils. However, if someone wants to have a sense of blending the shemen hamish’cha, it is permitted to mix the qualitative equivalent as long as the quantities are not the same. This is different from a similar mitzvah, also mentioned in this week’s parsha, about blending the ketores, the incense burned in the Beis Hamikdash, in which case it is forbidden to mix the same proportions of the ketores, even when the quantities are different.

Why is there this halachic difference between the two mitzvos? The answer is that the ketores was used in smaller proportions, and therefore blending it proportionally is similar to the way it was mixed in the Beis Hamikdashs. The shemen hamish’cha, on the other hand, was never used or made in smaller proportions, and therefore, there is nothing wrong with mixing it in smaller proportions.

Blending

Making a blend of shemen hamish’cha for a person’s own personal use.

In truth, the shemen hamish’cha was made only once in Klal Yisroel’s history, and that was when Moshe manufactured it in the Desert.

Using

As we saw above, the Torah prohibited using the shemen hamish’cha for a non-authorized purpose. However, it should be noted that the prohibition is only to use the shemen hamish’cha, itself, that was intended for holy purposes, and not for using a privately-made equivalent. In other words, making a blend of shemen hamish’cha is prohibited min haTorah, but there is no prohibition in using that privately-made blend. The prohibition is only to use the shemen hamish’cha made by Moshe Rabbeinu.

At this point, let us analyze another of our opening questions: If the oil is used inappropriately, is the anointer liable, the anointed, or both of them?

From the Gemara, we see that the anointer is certainly liable. The question is whether the anointed is, also, liable. The Tosefta (Makos 3:1) states that the anointed is also in violation. However, the Rambam does not mention this law, which prompts many acharonim to discuss why he does not.

Conclusion

Toward the end of parshas Ki Sissa, the Torah notes: “Three times a year, shall all your males appear before Hashem, the Master, the G-d of Israel.” This mitzvah focuses our attention on the central importance of the Beis Hamikdash for the Jewish people. Similarly, the shemen hamish’cha is closely connected to the Beis Hamikdash, and its use for the future of Klal Yisroel is primarily to anoint the kohein gadol. Thus, although we cannot observe the mitzvah today, studying its laws reminds us of the significant role that the Beis Hamikdash plays in the life of the Jewish people, and the realization of how much we are missing.

One of Rav Moshe Feinstein’s talmidim related to me the following story that he, himself, observed. A completely red, female calf had been born. Since this is, indeed, a rare occurrence, much conversation developed concerning whether this was positive indication that the Moshiach would be arriving soon, and this would provide the parah adumah necessary to make the Beis Hamikdash, the people and the vessels tahor.

Someone approached Rav Moshe to see his reaction to hearing this welcome news, and was surprised that Rav Moshe did not react at all. When asked further whether Rav Moshe felt that this was any indication of the Moshiach’s imminent arrival, Rav Moshe responded: “I daven every day for the Moshiach to come now. The parah adumah is not kosher until it is past its second birthday. Do you mean to tell me that I must wait two more years for the Moshiach?”

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