Who Is the True Redeemer?

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

Who is the True Redeemer?

Ìàøóëå 1 ìåñÿöQuestion #1: Deadbeat dad

Mrs. Gerusha* calls me with the following question:

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

Question #2: Who’s on first?

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

Question #3: Late bloomer

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

Answer

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

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

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

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

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

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

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

May she?

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

Pidyon haben vs. bris

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

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

May they redeem?

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

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

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

Early responsum

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

The Toledo contention

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

Rashba’s ruling

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

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

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

Coercion

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

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

Redeeming yourself

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

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

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

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

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

Redeeming oneself

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

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

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

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

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

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

When to redeem himself?

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

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

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

Combining semachos

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

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

Pidyon haben on Chol Hamoed

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

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

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

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

Conclusion

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

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

 

What Is an Otzar Beis Din?

veggies in binWhat do the words “Otzar Beis Din” mean? And, as an old friend of mine would ask, “Is an Otzar Beis Din good for the Jews or bad for the Jews?”

Literally, the words mean “a storehouse operated by Beis Din.” Why would Beis Din operate a warehouse? Is this some type of gmach or warehouse for impounded goods? Or a place where Beis Din stores people who are recalcitrant to follow its rulings? Although these might be good ideas, they have nothing to do with an Otzar Beis Din, which is a halachically approved method of distributing shmittah produce.

Before explaining what is an Otzar Beis Din, we must first review briefly the halachos of shmittah. These rules fall under two general categories:

(1) Laws of the Land

(2) Laws of the Fruit.

LAWS OF THE LAND

The Torah (VaYikra 25:1-7) teaches that every seventh year is shmittah, and we are prohibited from working the land of Eretz Yisroel. One may not plow, plant, prune, or harvest one’s grapevines or perform most other agricultural work. Furthermore, one may not allow one’s land to be worked during shmittah, even by a gentile (Gemara Avodah Zarah 15b). Since we follow the opinion that shmittah today is only miderabbanan, we have one leniency — one may perform activities whose purpose is to prevent loss (see Gemara Moed Katan 3b). For example, one may water plants and trees so that they do not die (Gemara Moed Katan 3b; Rambam, Hil. Shmittah 1:10; cf. Chazon Ish, Shvi’is 16:4, 21:14, who is more lenient).

The landowner may not treat what grows during shmittah as his own; rather he must allow others to enter his field or orchard and help themselves. If his field is fenced, the owner must leave the gate unlocked and should remove any impediments that discourage people from helping themselves to the produce (Rambam, Hil. Shmittah 4:24). They may take only as much as their family will eat, and the landowner himself may also take this amount (see Rambam, Hil. Shmittah 4:1). According to many poskim, the owner has a special mitzvah to declare that his produce is hefker, ownerless (Shu’t Igros Moshe, Yorah Deah 3:90 s.v. vihataam).

One must not pick shmittah produce the way one usually would, but with a shinuy, some variation from the usual (Sifra). One may not sell shmittah produce in a business manner (Rambam, Hil. Shmittah 6:1).

LAWS OF THE FRUIT

Shmittah produce is imbued with special sanctity, called kedushas shvi’is. The Torah provides specific rules that govern how one treats shmittah produce. These laws fall under the following categories:

THE WAY IT IS EATEN

The Torah teaches that shmittah produce may be eaten, but it may not be ruined. What types of “ruining” did the Torah prohibit? Foods that are usually only eaten cooked should not be eaten raw, and those that are not cooked should not be cooked. For example, one may not eat shmittah potatoes raw, nor cook shmittah cucumbers or oranges, even as part of a recipe. Similarly, one may not squeeze a fruit into juice, since this is considered “ruining” the fruit, although one may squeeze grapes, olives or lemons that have kedushas shvi’is since in these cases the fruit is not ruined, but improved, when squeezed. However, one may not squeeze apples or carrots, even if one usually does so, since one is ruining the fruit in the process of extracting its juice. Similarly, one may not add slices of shmittah orange to a recipe for a roast since the orange is ruined in the process even though the roast is improved (Shu’t Mishpat Kohen, #85).

If someone errantly squeezed a shmittah fruit, or cooked produce that should have been eaten raw, the finished product is permitted. It goes without saying that one must be careful not to actively destroy shmittah produce.

If one uses a shmittah product as an ingredient, one must treat everything that absorbs the taste of the shmittah product with the laws of kedushas shvi’is. Therefore, if someone used shmittah potatoes in a cholent, or shmittah onions or bay leaves in a soup, one must treat the entire cholent or soup with the laws of kedushas shvi’is.

One may not feed animals shmittah produce that is usually eaten by people. However, one may feed animals shmittah product that is typically used as feed, such as peels and seeds that people do not consume, or if they are no longer considered fit for human consumption.

COMMERCE WITH SHMITTAH PRODUCE

One must be careful not to sell shmittah produce in a way that implies that one is its true owner. For this reason, shmittah produce may not be sold by weight or measure (Mishnah Shvi’is 8:3), nor sold in a regular store (Yerushalmi Shvi’is 7:1). Instead, it should be distributed in a way that implies that this is a division of produce rather than a sale.

One may not export shmittah produce to chutz la’aretz (Mishnah Shvi’is 6:5). There is a halachic controversy whether one may ship esrogim to chutz la’aretz for people to fulfill the mitzvah (Beis Ridbaz 5:18; Igros Moshe, Orach Chayim 1:186).

SANCTIFIES ITS EXCHANGE

Shmittah produce has an unusual halacha in that it is tofes damav, transfers its special laws onto the money or other item that is exchanged for it (Sukkah 40b). For this reason, if one sells or trades shmittah produce, the money or other item received in exchange also has kedushas shmittah and must be treated with all the laws mentioned above. Even so, the original produce maintains its kedushas shvi’is.

TERUMOS AND MAASROS

An interesting leniency applies to shmittah produce. Since it is halachically ownerless, there is no requirement to separate terumos and maasros from shmittah produce. The poskim dispute whether one must separate terumos and maasros from produce taken from the field of an owner who did not observe shmittah and did not allow people to help themselves (Shu’t Avkas Rocheil #24; Shu’t Mabit #11).

SEFICHIM

The Torah permits eating produce that grew by itself without working the field during shmittah. However, Chazal felt it necessary to prohibit grains and most vegetables that happened to grow on their own during shmittah year or were planted in violation of the laws of shmittah. The reason for this was that, even in the days of Chazal, it was unfortunately common to find Jews who deceitfully ignored shmittah laws. One practice of enterprising, unscrupulous farmers was to plant grain or vegetables and market them as produce that grew on its own! To discourage this illegal business, Chazal forbade even grains and vegetables that did grow on their own, a prohibition called sefichim, literally, “plants that sprouted.” Several exceptions were made, including that the produce of a non-Jew’s field is not prohibited as sefichim. Since a gentile is not obligated to observe shmittah, Chazal saw no reason to ban produce grown during shmittah in his field (Rambam, Hil. Shmittah 4:29).

OWNERLESS

Since all shmittah produce is halachically ownerless, every consumer has the halachic right to “help himself” to whatever his family might eat. (The poskim dispute whether one has the right to do this if the owner refuses entry. Even if it may be permitted, I do not recommend helping yourself to shmittah produce if the owner is not observing the laws of shmittah.) If my neighbor owns fruit trees, I have the right to enter his field and help myself. Similarly, if he has a vineyard, I may enter his vineyard and take as many grapes as my family can eat as table grapes or drink as wine. The field and tree are not ownerless, but the produce is.

WHAT IS AN OTZAR BEIS DIN?

With this introduction, we can now discuss what an Otzar Beis Din is. The owner of a vineyard is not required to produce wine for me, to allow me to harvest the grapes only for myself. If I do not have the equipment or expertise to press and process grapes into wine or olives into oil, I will be unable to utilize my rights to these fruits. Similarly, although I have a right to travel from Yerushalayim to pick citrus, mangos and bananas grown along the coast or in the northern part of the country, it is not that convenient for me to do so. How then can I possibly utilize the benefit of shmittah?

Enter the Otzar Beis Din to help out! Beis Din represents the consumer and hires people to gather the fruit, crush the grapes and olives into juice and oil, ferment the juice into wine, package the product, and then distribute it to the consumer. The Otzar Beis Din acts as the consumer’s agent and hires pickers, truckers, and other laborers; rents wine production equipment; purchases the bottles; produces shmittah fruits, wines and oils; and delivers them to a convenient distribution center near my house.

 

Obviously, the Otzar Beis Din cannot expect the pickers, truckers, and other laborers to work as unpaid volunteers, nor can they use the production equipment without paying rent. Similarly, the managers who coordinate this project are also entitled to a wage for their efforts. The Otzar Beis Din divides these costs among the consumers. However, no charge is made whatsoever for the fruit, since it is hefker, only for the labor and other costs involved. Thus, Otzar Beis Din products should cost less than regular retail prices for the same items.

 

Similarly, the farmer is required to allow anyone to enter his field and help himself to his crops. However, since it is inconvenient for a resident of Yerushalayim to travel to an orchard in the northern part of Israel or along its coast to pick oranges and bananas, the Otzar Beis Din picks and transports them to the consumer. All the other halachos of shmittah apply to this produce.

A “MODERN” OTZAR BEIS DIN

The Rabbonim and Beis Din of Yerushalayim organized the first modern Otzar Beis Din in 5670 (1910). Rav Tzvi Hirsch Cohen, a talmid chacham from Rechovot who owned vineyards and orchards, came to the Rabbonim of Yerushalayim requesting that they function as his Beis Din to distribute the wine and fruit from his orchards for the coming shmittah. The written contract, extant to this day, was signed by Rav Chayim Berlin, Rav of Yerushalayim at the time; Rav Yosef Chayim Zonnenfeld and Rav Pesach Frank, both of whom were later rabbonim of the city of Yerushalayim; and by two other prominent dayanim, Rav Yisroel Yaakov Yaavetz and Rav Moshe Nachum Wallenstein. To enable Yerushalayim residents to receive wine and fruit from Rav Cohen’s orchards, someone had to arrange to harvest the fruit, process the grapes into wine, and transport the products to Yerushalayim. Since Rav Cohen was the most qualified person to take care of these arrangements, the Beis Din appointed him to be their representative on behalf of the general public to harvest and process the produce and transport it to Yerushalayim. As an agent he was entitled to a wage for his work, as were the other employees who harvested, crushed, packaged, and transported the crop, but no one was entitled to any profits on the produce.

The Beis Din established several rules to maintain that the laws of shmittah were scrupulously kept in this arrangement, and to guarantee that Rav Cohen was paid as a manager and not as an owner of the product. For one thing, they predetermined the price that the consumer would pay for the wine, guaranteeing that it be significantly lower than its usual market price (Sefer Minchas Yerushalayim pg. 161).

Because of the laws governing the harvest and use of shmittah products, the Beis Din also insisted on the following rules:

1) The wine and fruits could be distributed only to people who would observe the shmittah sanctity of the products (see Tosefta Shvi’is 6:11).

2) The vineyards and orchards had to be available for any shmittah observant person to enter and harvest for his own needs (Sefer Minchas Yerushalayim pg. 181).

3) The products were not distributed through stores, but were divided as a communal division of bulk product. The products were not weighed or measured. Each individual who participated in dividing the shmittah produce paid Rav Cohen as Beis Din’s agent, for which the consumer was entitled to “shares” of wine and produce that were delivered in bulk containers without an exact weight.

4) The actual harvest of the product was performed by gentiles and in an atypical way (Katif Shvi’is pg. 125).

In his analysis of the procedure of an Otzar Beis Din, the Chazon Ish (Shvi’is 11:7 s.v. bemashekasavti) follows a more lenient approach than that of the Beis Din of Yerushalayim. He ruled that representatives of an Otzar Beis Din may harvest in the normal way and use Jewish labor. Thus the Otzar Beis Din of a modern farm following the Chazon Ish’s ruling allows Jewish staff to use combines to harvest and process the shmittah produce (Sefer HaShmittah pg. 21).

In addition, the Chazon Ish permitted weighing and measuring produce sold through Otzar Beis Din. In his opinion, the prohibition against weighing and measuring shmittah produce is only because this indicates that I am the owner of the produce. However, weighing and measuring Otzar Beis Din produce is to determine a fair division of costs involved in supplying the produce, and not to demonstrate ownership.

The 1910 Otzar Beis Din of Yerushalayim was stricter than this approach and did not allow any weighing or measuring of produce. Each participating household received “units” of wine and/or fruit which were deliberately approximate and not measured or weighed.

In a modern Otzar Beis Din, the grower plants everything before shmittah and is given extremely detailed instructions regarding what he may and may not do during shmittah (Katif Shvi’is pg. 126). The grower must allow any shmittah observant person to enter the field or orchard and help himself to the produce (Mishpetei Aretz pg. 103).

Usually, the grower has agreed in advance to a price for his produce which he will receive regardless of the quality of the produce. The grower must understand that this price is not a purchase of the produce, but compensation for his out-of-pocket expenses, including compensation for his own time.

“HETER OTZAR BEIS DIN”

Now is the time to approach our second question: “Is an Otzar Beis Din good or bad for the Jews?” The modern term “heter Otzar Beis Din” is used pejoratively. The purpose of an Otzar Beis Din is to service the consumer, not the producer, as I explained above. Unfortunately, unscrupulous individuals sometimes manipulate the rubric of Otzar Beis Din to allow a “business as usual” attitude and violate both the spirit and the halacha of shmittah. If the farmer is operating with a true Otzar Beis Din, he will allow a shmittah observant person to enter his field and help himself to the produce. (If he is concerned that the individual may damage the field or the trees, then he can make other arrangements.) However, if the field owner treats the produce as completely his own and charges accordingly, this contradicts the meaning of Otzar Beis Din. Cases like these are called heter Otzar Beis Din; meaning a permissibility based on an abuse of the concept of Otzar Beis Din. Because of these concerns, some hechsherim discourage the use of Otzar Beis Din. (See extensive discussion of this question in Minchas Yerushalayim Chapter 9.)

Thus in answer to our question whether Otzar Beis Din is good for the Jews or bad for the Jews, the answer is that although it is good for the Jews in theory, in practice Otzar Beis Din becomes bad for the Jews when it degenerates into a heter Otzar Beis Din. I certainly encourage use of a properly run Otzar Beis Din, which also includes that the produce must be treated with all the rules of kedushas shevi’is.

For the modern farmer, observing shmittah is true mesiras nefesh, since among many other concerns he also risks losing customers who have been purchasing his products for years. Of course, since a Jew realizes that Hashem provides parnasah and that observing a mitzvah will never hurt anyone, a sincerely observant farmer obeys the Torah dictates knowing that Hashem attends to all his needs. Indeed, all recent shmittos have had numerous miracles rewarding observant farmers in this world for their halachic diligence. Who can possibly imagine what reward awaits them in Olam Haba!

 

The Heter Mechirah Controversy

carotsThe Heter Mechirah Controversy

Several shmittah cycles ago I was working as a mashgiach for a properly run American hechsher. One factory that I supervised used to manufacture 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. They may only take as much as their family will be eating, and the farmer also may take this amount. Many other 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 product 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 rewarding observant farmers 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. ayn odrin, prohibits; whereas 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 of 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), although at that time there were 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 observe shmittah in full halachic detail. Apparently, at the same time there were some Sefardic 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 of 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,laiming that the new yishuv could not survive financially if shmittah were to be 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 horaas shaah, 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, who 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 steadfast and expounded on the divine blessings guaranteed them for observing shmittah. The letter also noted that Klal Yisroel was punished severely in  earlier times 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 were adamant in their opposition. He decided not to sell the land himself, but arranged mechirah for those who wanted it through the Sefardic rabbonim in Yerushalayim, who had apparently performed this mechirah in previous years.

What happened? Did the Jewish farmers observe the shmittah as cajoled 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 succumbed to the pressure and relied on heter mechirah. Apparently, many farmers were subjected to considerable financial and social pressure not to observe 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 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 upon 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 the 1896 shmittah year. These rabbonim felt that the circumstances had not changed and that there was still a need for heter mechirah. Rav Hertz himself passed away before the heter mechirah was finalized, and his son-in-law, Rav Yosef HaLevi, apparently 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. As Rav 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 appointing an agent to sell the land for the years of shmittah. Rav Kook improvised a facet of the mechira enabling even a farmer who did not avail himself of the mechirah to be included since it would be 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, a practical question now results that affects a consumer purchasing this farmer’s produce. If the farmer did not authorize the sale, does the produce indeed not have the sanctity of shmittah produce? For this latter reason, many individuals who might otherwise accept heter mechirah produce do not.

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 most 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 of 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 returns to the owner preempts the violation (Shu’t Shemen Hamor, Yoreh Deah #4), while others permit this since the sale 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 a gentile who does not worship idols (Sefer Hashmittah pg. 74; Yalkut Yosef pg. 665, quoting Mizbayach 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 incorporate some other aspects of the way the sale transpires to avoid this problem (Sefer Hashemittah pg. 75). 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 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 manufactured through heter mechirah; some contending that one may, others ruling that both the produce and the pots are non-kosher, whereas others accept 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 in advance what he intends to do.

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 follows:

SEFICHIM

The Torah permitted the use of any produce that grew on its own without working the field during shmittah. Unfortunately though, even in the days of Chazal, it was common to find Jews who deceitfully ignored shmittah laws. One practice of enterprising, 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.

“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 “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.

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 were already distributed. The hechsher referred the shaylah to its posek, asking whether they were required to recall the product from the stores as non-kosher, or whether it was sufficient to advertise that an error had occurred and allow the customer to ask his individual rav for halachic guidance.

What would you advise?

May an Ashkenazi Eat Sirloin?

meat“And Yaakov was left alone, and a man wrestled with him until daybreak. When the man realized that he was unable to defeat Yaakov, he struck the “kaf” of Yaakov’s thigh, which became dislocated as a result of the wrestling. And the sun rose as Yaakov passed Penuel, and he was limping because of his injured thigh. Therefore, the descendants of Yisroel do not eat the sciatic sinew to this very day, for the man struck Yaakov on that sinew, dislocating it” (Breishis 32:25-26, 32-33).

With these words, the Torah introduces us to the mitzvah of gid hanosheh, which forbids us from eating the sciatic nerve, a sinew that runs from the lower back over the top of the hip and down the leg, at which point it divides into other nerves. The Hebrew word gid describes stringy body parts whose texture is too tough to chew comfortably, and may refer to nerves, tendons, ligaments, or even blood vessels (see Rambam, Peirush Hamishnayos, Zevachim 3:4). It is noteworthy that the Chinese word for the Kai Feng Jewish community was “the people who remove the sinew,” referring to the gid hanosheh; thus the observance of this mitzvah became the identifying description of the Jews.

An entire chapter of Mishnah and Gemara (the seventh chapter of Chullin) is devoted to the halachic discussion of this mitzvah, which is the third mitzvah mentioned in the Torah. The Gemara (Chullin 91a) there teaches that there is an inner gid that lies along the bone which is prohibited min hatorah, and an outer gid that lies along the meat, which is prohibited only miderabbanan. In addition, a layer of protective fat that surrounds the gid is also prohibited miderabbanan.

The Mishnah (Chullin 96a) records a dispute regarding how much of the nerve must be removed: the Tanna Kamma rules that one must remove the entire gid, whereas Rabbi Yehudah rules that one need remove only the main part of the gid. Both opinions agree that the Torah forbade only that part of the gid that lies on the top of the hip (the “kaf” of Yaakov’s thigh). According to the Tanna Kamma, the rest of the nerve is prohibited as a rabbinic injunction. Rabbi Yehudah contended that the rest of the nerve is not prohibited even miderabbanan, and therefore he did not require its removal (Chullin 96a). (The Ritva, Chullin 92b, contends that, according to some opinions, the entire main nerve and its branches are forbidden min hatorah.)

The Mishnah teaches that the mitzvah of gid hanosheh applies to all kosher mammals. This includes species of beheimah, i.e., domesticated kosher species such as cattle and sheep, and species of chayah, i.e., kosher species that are usually (but inaccurately) categorized as wild or non-domesticated species. (I discuss this inaccuracy more extensively in a different article.) Gid hanosheh does not apply to poultry, since the thigh of a bird is shaped differently and therefore has no “kaf.” Therefore, there is no need to remove this sinew from kosher birds.

There is a major difference between the prohibitions of gid hanosheh and cheilev. Whereas gid hanosheh applies to beheimah and chaya species, the Torah’s prohibition of consuming certain fats – predominantly those attached to the stomachs and the kidneys – applies only to species of beheimah, but not to chayah species (Mishnah Chullin 89b).

Another mitzvah that is affected by whether a species is a chayah or a beheimah: the mitzvah of kisuy hadam, covering the blood immediately following shechitah. This mitzvah applies only to fowl and chayah species, but not to beheimah species (Mishnah Chullin 83b). We therefore have three different types of meat species that have variant halachos pertaining to three different mitzvos: Gid hanosheh applies to beheimah and chayah, but not to birds; Cheilev applies to beheimah, but not to chayah and birds. Kisuy hadam applies only to chayah and birds, but not to beheimah.

It is important to note that the halachic definitions of beheimah and chayah are unclear. Since we are uncertain which species are considered beheimah and which are considered chayah, we are stringent and treat any species of which we are uncertain as both beheimah and chayah lechumrah, unless we have a mesorah, an oral tradition, about the halachic status of this specific species (see Shach, Yoreh Deah 80:1 as explained by Pri Megadim). Thus, we forbid the cheilev for any such species, because it might be a beheimah, yet its blood is covered after slaughter, because it might be a chayah. Since we are uncertain whether or not it is a chayah, the blood is covered without reciting the bracha one usually recites before performing this mitzvah.

The Shulchan Aruch (Yoreh Deah 28:4) rules that one does not perform kisuy hadam for a buffalo; this determines it to be a beheimah. (He is presumably referring to the Asian water buffalo, which was domesticated in Southern Europe hundreds of years before the Shulchan Aruch.) The Rama (ad loc.) however rules that the status of the buffalo is uncertain. According to both opinions, the cheilev is forbidden — according to the Shulchan Aruch, definitely forbidden as the cheilev of a beheimah, and according to the Rama, out of doubt. There are, also, several other bovine type species such as the yak, the African Cape buffalo, and both the American and the European bison, all of which should probably be considered a safek if they are a chayah or a beheimah, and therefore their cheilev is prohibited misafek and their blood must be covered without a bracha. (See Chullin 59b and 80a; Gra and Pri Chodosh to Yoreh Deah 80; Ohr Somayach, Ma’achalos Asuros, Chapter 1).

TRABERING

Since the Torah prohibits consuming both cheilev and the gid hanosheh, these forbidden parts must be removed from an animal before its meat can be eaten. This process is called “trabering,” a Yiddish word that derives from tarba, the Aramaic word for cheilev. The Hebrew word for the process is “nikur,” excising, and the artisan who possesses the skill to properly remove it is called a menakeir (pl. menakerim). In truth, both the words traber and the word nikur are also used to describe the kosher butchering performed in the front part of the animal, called the forequarters, to remove blood vessels and some fat; however, I will be using the words traber and nikur to mean the more difficult task of trimming the hindquarters from the gid hanosheh and the cheilev. Although there is no absolute delineating point defining where the forequarters end and the hindquarters begin, the butcher usually counts the ribs, of which there are thirteen, and slices around the twelfth, considering the area below it to be part of the hindquarters. (The first rib is the one closest to the neck.) As we will discover shortly, not all halachic authorities accept that the meat above the twelfth rib should be treated as part of the forequarters.

Removing the gid hanosheh and forbidden fats from the hindquarters is an extremely arduous process that requires much skill and patience. It is interesting to note that the Rama (Yoreh Deah 64:7 and 65:8) points out twice that nikur cannot be learned from a text, only through apprenticeship. The Mishnah refers to a dispute among Tanna’im whether observant butchers can be trusted to remove the gid hanosheh and the non-kosher fats, Rabbi Meir contending that we cannot trust them, since removing them is highly tedious (Chullin 93b). In Rabbi Meir’s opinion, someone else must double check after the menakeir is finished, to see that the trabering was performed correctly. The halacha does not follow Rabbi Meir, and technically one may rely on a trained yarei shamayim menakeir to do the job properly. However, in many places the custom was more stringent.

SIXTEENTH CENTURY POLAND

The Maharshal reports that most of the menakerim in his day did not perform an adequate job — when they had a heavy workload, one would find that they failed to remove all the cheilev. The Maharshal notes that the menakeir must be not only well trained in his practice, but also a yarei shamayim who is meticulous in the work, and that one should not rely on just any typical menakeir. He also quotes an earlier authority, the Maharam Mintz, who did not eat meat after nikur until it was checked by a second menakeir. Since he had this policy all the time, he was able to avoid implying that any particular menakeir was careless or incompetent. The Maharshal praises this practice highly, noting that the original menakeir is more careful knowing that someone else will discover if he is sloppy. He reports that, after observing much inadequate nikur, he himself followed this approach of the Maharam Mintz not to eat meat unless a second menakeir had checked the first one’s work (Yam Shel Shelomoh, Chullin 1:2, 7:19; Be’er Heiteiv, Yoreh Deah 65:6).

NOT USING HINDQUARTERS

Since most of the forbidden fats and the entire gid hanosheh and all its tributaries are in the hindquarters, in many places the custom developed for Jews to eat only the meat of the forequarters, thus considerably simplifying the trabering process. The earliest source I have located that mentions this practice is a responsum from the Radbaz (Shu’t #162), who was the Chief Rabbi of Egypt almost five hundred years ago – and a Sefardi. (This is itself an interesting observation, since the practice of nikur of hindquarters is far more common today among Sefardim than among Ashkenazim.) The Radbaz had been asked about a local custom to slaughter on the eastern side of a building, apparently a Moslem custom of the time: The question was whether this practice violates halacha, since it is a Moslem practice. The Radbaz rules that one may slaughter on the eastern side, since there was nothing idolatrous about this practice. The reason a Jew would slaughter on the eastern side was because the Jews used only the forequarters and left the hindquarters plus the non-kosher slaughtered animals (neveilos utreifos, those found to be halachically imperfect or where an error occurred during the shechitah). These were then sold to Moslems, who would not eat them unless they were slaughtered on the eastern side. Radbaz approved the practice not to traber the hindquarters, since expert menakerim are hard to find.

ASHKENAZIC 18TH AND 19TH CENTURY PRACTICES

In central Europe of the late eighteenth and early nineteenth century, we find that local need determined whether trabering was performed on the hindquarters. Someone asked the Noda BiYehudah (Yoreh Deah II #31) whether he should be concerned about the meat located on the forequarters. The Noda BiYehudah contended that some of the fat located between the 11th and the 12th rib is cheilev that requires removal by an expert menakeir. The Noda BiYehudah notes that in Prague, where he was the Rav, the area past the 11th rib was trabered by the menakerim who were expert in trabering the hindquarters. In his opinion, if there are no menakerim in town who know how to traber the hindquarters, then one should use only the meat above the eleventh rib.

The Chasam Sofer (Shu’t Yoreh Deah #68) disagreed with the Noda BiYehudah, contending that any fat located above the 13th rib is not cheilev and is removed only because of custom. If the place has expert menakerim available, then they should trim the area beyond the 12th rib. However, if there are no experts available, it is acceptable to have regular butchers trim the area between the 12th and the 13th ribs.

Thus, one sees from both of these responsa that in their day, whether a community used meat of the hindquarters meat depended on local custom and the expertise of the local butchers. Many communities did not use the hindquarters meat at all, but sold it as non-kosher, because they lacked skilled menakerim. However, communities that had skilled menakerim utilized their talents and enjoyed kosher hindquarters meat. Clearly, neither the Noda BiYehudah nor the Chasam Sofer was concerned about using the hindquarters, as long as expert menakerim are involved.

On the other hand, about this period of time we see that in some places it was becoming accepted practice not to traber the hindquarters. In a teshuvah dated the day after Tisha B’Av 5625 (1865), Rav Shamshon Rephael Hirsch wrote to Rav Yissochor Berish Bernstein, the Av Beis Din and Rosh Yeshiva of the Hague, that one should not relax the custom “already established by our fathers and grandfathers” to refrain from the practice of trabering (Shemesh Marpei #34).

Although nikur continued to be practiced in the 20th century, in Ashkenazic communities it became the exception rather than the norm. The Aruch Hashulchan notes (Yoreh Deah 64:54, 65:31) that most places did not perform nikur on the hindquarters and instead sold them to non-Jews, although there were still places where it was practiced, including his own city, where very tight controls were kept to insure that it was performed properly.

POLAND, 1936

The practice not to use the hindquarters was, apparently, universally accepted in Poland by the first third of the twentieth century. Because of a very sad turn of events, this practice created a very unfortunate shaylah. In 1936, the Polish Parliament, influenced by anti-Semitism from neighboring Nazi Germany, banned shechitah and permitted it only for Jewish consumption. The law specified that non-Jews could eat no part of the kosher slaughtered meat. Although they officially claimed that this was in order to recognize the Jews’ freedom of religion, in reality, this law implied that the Judaic practice of shechitah is inhumane.

This created a shaylah, since the custom existed not to traber and eat from the hindquarters. In essence, the accepted practice treated the entire hindquarters as non-kosher. However, being stringent under the new circumstances would make the price of meat prohibitively expensive, since the entire cost of the animal would have to be absorbed by the sale of its forequarters.

A halachic issue now came to the forefront. Once a custom has been established as accepted practice, it has the status of a vow that may not be rescinded (Shulchan Aruch, Yoreh Deah 214:2). Did the practice of refraining from eating the meat of the hindquarters have the status of a minhag that could not be rescinded?

Rav Chayim Ozer Grodzenski, the posek of the generation, ruled that it was permitted to reintroduce the practice of trabering the hindquarters by experienced, G-d-fearing experts. In his opinion, the practice not to traber the hindquarters did not have the status of a vow that may not be rescinded, nor of a minhag that requires hataras nedarim. He ruled that it was simply more practical not to traber, since there was an ample supply of meat without resorting to trabering the hindquarters, and it was simply not worthwhile to bother. Certainly, the practice did not begin at a time when there was compelling reason to traber the hindquarters, and this would serve as adequate reason to reintroduce the practice. Rav Chayim Ozer added that the government’s intent in this evil decree was to forcibly close down shechitah by making it financially non-viable. Thus, he felt that it was a mitzvah to permit the hindquarter meat, in order to demonstrate that the decree would not prevent the Jews from having kosher meat. Furthermore, if it were officially accepted that the hindquarters were permitted, there would be proper supervision of the trabering to guarantee that it was performed properly (Shu’t Achiezer 3:84).

Initially, several Chassidic rabbayim opposed permitting the practice, concerned both about minhag and whether all the people performing nikur would be trained and work with the necessary yiras shamayim. Rav Chayim Ozer then wrote to several of the great rebbes living in Poland at the time, notably the Bobover Rebbe and the Lubavitcher Rebbe, to elicit their support. Both of these rebbes eventually agreed that the needs of the generation called for permitting nikur of the hindquarters, provided it was performed by trained, yirei shamayim menakerim. Thus, all segments of Polish Jewry accepted the decision of Rav Chayim Ozer.

THREE MODERN SHAYLOS

BRUSSELS, 1964

In 1964, Rav Shmaryahu Karelitz, the Rav of Brussels, Belgium, sent Rav Moshe Feinstein zt”l a shaylah whether they could reinstitute the practice of trabering the hindquarters in Belgium, since they found themselves short of kosher meat. Rav Moshe ruled that as long as a proficient menakeir, licensed by an expert Rav, performed the trabering, there was no reason to prohibit this meat. Rav Moshe writes that refraining from using the hindquarters does not have the status of a minhag; simply, it resulted from the fact that butchers did not bother, either because they were easily able to sell the hindquarters as non-kosher, or because the butchers lacked the expertise. However, should it become worthwhile to traber the hindquarters, there is no halachic problem with reintroducing the practice, provided the menakeir is a yarei shamayim and properly trained and licensed (Shu’t Igros Moshe, Yoreh Deah 2:42).

SOUTH AFRICA, 1990

A dissenting position is found in the responsa of Rav Moshe Sternbuch, shlit”a, currently Av Beis Din of the Eidah HaChareidis in Yerushalayim, and formerly rav of a kehillah in Johannesburg, South Africa. During his tenure in South Africa, he was asked about renewing the practice of trabering there, utilizing the skills of an expert menakeir. Rav Sternbuch prohibited the practice, contending that not trabering the hindquarters has the status of a minhag that may not be altered (Teshuvos VeHanhagos 1:418, 419).

UNITED STATES, 21st CENTURY

Within the last few years, the kosher market has begun regular production of shechitah of animals such as buffalo and deer, species in which removing the gid hanosheh and the cheilev might be financially advisable. I inquired from the OU what their policy is regarding nikur of these hindquarters, and they responded that they permit removing the gid hanosheh, but do not remove the cheilev. This translates into the following: If it is questionable whether a species is a chayah or a beheimah, the hindquarters are not trabered and are sold as non-kosher. However, if the species is one concerning which we have a mesorah to treat it as a chayah, there is no halachic requirement to remove any cheilev from the hindquarters, as we learned in the beginning of this article. The only halachic requirement is to remove the gid hanosheh. Thus, on species such as deer, where there is a halachic mesorah that it is a chayah, the hindquarters are trabered and the gid hanosheh is removed. However, on species such as bison (American buffalo), where there is no mesorah whether it is a chayah or a beheimah, the hindquarters are left untrabered and are sold as non-kosher.

WHY DISTINGUISH BETWEEN CHEILEV AND GID HANOSHEH?

I asked this same question and this is the response they sent me:

“Removing cheilev is difficult and time-consuming, even for those who know how. Removing the gid hanosheh and its subordinate parts is no more difficult than removing veins: one is removing a gid that separates easily from the surrounding meat. Therefore, when we know that an animal is a chayah, we allow the removal of the gid hanosheh. Any animal for which we do not have a mesorah whether it is a beheimah or a chayah, such as buffalo, will be treated as a sofek, and kisuy hadam will be performed, and the hindquarters will not be used for kosher.”

Rav Shamshon Rephael Hirsch explains the mitzvah of gid hanosheh as a message that although the spirit of Eisav will never conquer Yaakov and his descendants, Eisav will be able to hamstring Yaakov and prevent him from standing firmly on two feet. Thus, Yaakov goes through history with an unfirm physical posture and gait. By having to remove the gid hanasheh, whenever Yaakov’s descendants sit down to eat meat, they realize that their continued existence is not dependent on their physical strength and stamina, but on spiritual factors which can never be weakened by Eisav’s might.

 

Is Swift the Way to Go?

newborn baby boyQuestion: The Early Birds

Avraham and Sorah Adler* are celebrating the bris of their firstborn son! Avraham knows that one should perform a bris as early in the morning as possible, and, therefore, he would like to schedule it for immediately after the “neitz” minyan, which begins the Shacharis Shemoneh Esrei exactly at sunrise. Sarah feels that she will have no difficulty having herself and the baby ready in time. However, the new grandparents feel that the bris should be scheduled later, so that more guests will arrive. Who is correct halachically?

Answer:

There is a principle of the Torah, zerizin makdimim lemitzvos, that one should perform a mitzvah as soon as the opportunity arrives. To quote the Gemara: One may perform a bris milah any time during the day, but one should try to perform the mitzvah as soon as possible (Pesachim 4a). Thus, since the earliest time to make a bris milah is at sunrise, one should perform it as soon as one can.

As a source for the law of zerizin makdimim lemitzvos, the Gemara mentions that when Avraham Avinu was commanded to bring his son, Yitzchak, to the Akeidah, the Torah emphasizes that Avraham got up early in the morning to fulfill his mitzvah. We also find another Biblical source in which Dovid Hamelech lauds those who perform mitzvos at the first opportunity; I hurried and did not delay fulfilling Your commandments (Tehillim 119:60).

Our enthusiasm to carry out Hashem‘s commandments should manifest itself in a desire to perform mitzvos as immediately as possible. We should bear this in mind for every opportunity that presents itself, whether it be to perform a chesed or to fulfill one of the laws that we do not necessarily understand. As an example of zerizin makdimim lemitzvos, the Gemara requires one to check for chometz as soon as the evening of Erev Pesach begins, and not wait until later that night.

In a different article, we discussed whether it is more important halachically to perform a mitzvah in a more exemplary fashion, hiddur mitzvah, than to perform it earlier. Briefly put, most authorities contend that it is of greater importance to perform a mitzvah in a more exemplary fashion than to perform it earlier, whereas the Gra contends that performing the mitzvah earlier is preferable.

Berov Am Hadras Melech

We can now analyze the issues involved in our question: When should one schedule a bris? Should one schedule the bris at the first possible moment, because of the mitzvah of zerizus, or should one delay the bris in order to have a larger crowd attend, which is itself a halachic preference, called berov am hadras melech, a large group of people (attending a mitzvah) honors the King. The question is whether berov am hadras melech is similar to performing a mitzvah in a mehudar way, and therefore is a reason to delay the bris so that more people can attend (according to the majority opinion that hiddur mitzvah is preferable to zerizus), or is it preferred to perform the mitzvah at the first opportunity?

Why should there be a difference?

Hiddur mitzvah means that there is an improvement in the quality of performance of this specific mitzvah, such as using a nicer sefer Torah, purchasing a more beautifully written mezuzah, or davening with greater concentration. Most opinions contend that it is preferable to perform a mitzvah in a more proper fashion than it is to fulfill observing the mitzvah earlier. However, berov am hadras melech does not change the quality of the actual mitzvah performed. The Bris Milah is not performed in a more meticulous fashion because more people attended. Having more people in attendance is a halachic preference, but it does not make the bris into a more mehudar mitzvah.

Zerizim Versus Berov Am Hadras Melech

Can we prove that one should delay performing a mitzvah in order to accomplish berov am hadras melech? It appears that we can.

The Mishnah teaches that Hallel is always recited immediately following Shacharis, whereas shofar blowing is performed before and during the Musaf davening. The Gemara asks why we make sure to recite Hallel early, yet we delay blowing shofar. The Gemara suggests that the reason that the shofar is blown during Musaf, and not during Shacharis, is because more people attend Musaf than Shacharis (sigh — I guess times have not changed) – thus, there is greater berov am hadras melech to blow shofar at Musaf than at Shacharis. The Gemara, however, counters that were this logic true and berov am hadras melech supersedes zerizin makdimim lemitzvos, why is it that Hallel is recited after Shacharis? Should not its correct place be after Musaf so that more people participate? Thus, the two rulings appear to contradict one another, the practice of Hallel implying that zerizim is preferred, and the practice of shofar implying that berov am hadras melech is. Obviously, this cannot possibly be! There must be a method whereby we resolve this contradiction.

The Gemara responds that the shofar is not blown until Musaf for a completely different, historical reason. At a certain point in history, the government prohibited the blowing of shofar and posted guards in the shuls during Shacharis; at that time, the point in davening when shofar was blown. The guards dispersed when they noted that the Jews were no longer blowing shofar in Shacharis. The Sages then instituted blowing shofar at Musaf, because by that time the government guards were gone (Rosh Hashanah 32b). Thus, the practice of blowing shofar around Musaf is because of exceptional circumstances unique to shofar that should not be applied elsewhere; otherwise, zerizin makdimim lemitzvos supersedes berov am hadras melech, not the other way around.

Review of the Rules

Based on all these points, we should prioritize our mitzvah performance in the following way:

  1. According to most authorities, hiddur mitzvah is the first choice. When one is certain that one will be able to perform the mitzvah later in a more mehudar fashion, one should delay in order to do so. An example of this is delaying kiddush levanah until motza’ei Shabbos. (According to the Gra, one should perform kiddush levanah at one’s first opportunity.)
  2. When delaying may result in missing the mitzvah altogether, one performs the mitzvah as soon as possible. The same is true if delaying the mitzvah for the hiddur may result in a long delay – we perform the mitzvah as soon as possible.
  3. Although having many people in attendance enhances the observance of the mitzvah, the idea of berov am hadras melech does not take precedence over performing the mitzvah earlier, and certainly is less important than performing the mitzvah in a more mehudar fashion.

When Should I Schedule the Bris?

We can now address the Adlers’ question. The authorities indeed conclude that one should not delay a bris in order to enable more people to attend. The preferred practice is to carry out a bris at the end of Shacharis. The original and favored practice is to perform it immediately after uva letziyon and before aleinu, such that all those who attended shul present for the bris, accomplishing both zerizin makdimim lemitzvos and berov am hadras melech (Shach, Yoreh Deah 265:24).

In this context, I want to share the words of the Aruch Hashulchan, who notes that when the Mishnah lists mitzvos that can be performed all day long, it omits mention of bris milah. To quote the Aruch Hashulchan:

It appears to me that this omission is intentional. The reason being that although other mitzvos should be performed as soon as possible, there is not as much concern about delaying the mitzvah slightly as there is in regard to mitzvas milah, which is the seal of the holy covenant. Since through this mitzvah the child enters sanctity, there is major concern not to delay…. We should therefore reprimand those who delay performing the mitzvah for several hours for inane reasons such as not all the invited guests have arrived…. Delaying the bris until the afternoon is very sinful (Aruch Hashulchan, Yoreh Deah 262:8).

The Aruch Hashulchan then proceeds to ask why we wait until after davening to perform the bris milah, to which he answers that davening includes several mitzvos, and since there are several mitzvos involved, davening should precede the bris milah.

Thus, Avraham and Sorah are correct that they should follow the precedent of their namesakes and perform their son’s bris as early in the day as they can. Although their parents are correct that, in general, one should try to perform a mitzvah in a way that many people can participate, this does not, however, preempt performing the mitzvah as swiftly as possible.

A Busy Mohel

Sometimes the bris needs to be delayed because the mohel one has chosen is not available earlier, due to other brisim he has to perform. I will leave it for a different time to discuss whether this provides sufficient reason to choose a different mohel, who is available as early as one wants to schedule the bris.

I would like to note that some yeshivos have rules when brisim can be scheduled, because the roshei yeshivah are concerned that the frequency with which brisim occur can result in many disruptions to the regular seder hayeshivah. It is certainly within the rosh hayeshivah’s prerogative to make such a rule. In my opinion, the bris should be immediately after Shacharis (in actuality immediately before Aleinu at the end of Shacharis), but the seudah should be scheduled for later in the day, when it is less disruptive to the sidrei hayeshivah.

In Conclusion

Our entire discussion revolves around whether and when it is important to perform a mitzvah without delay or if there are other mitzvah calculations that supersede the early performance of the mitzvah. The main point is that our attitude towards the performance of mitzvos should be one of enthusiasm – we are overjoyed with the opportunity to fulfill Hashem‘s commandments and therefore rush to perform His mitzvos as soon as we possibly can. This zeal must sometimes be tempered with a different type of passion — the desire to perform the mitzvah in an optimal way. It is wonderful that Jews share these two enthusiastic emotions and try to seek balance between them.

*The story is real, although the names have been changed to protect privacy.

 

You Can’t Take It with You — Moving and Removing Mezuzos

YOU CAN’T TAKE IT WITH YOU!

Question #1: “We are moving residences, and I understand that I must leave the mezuzos in my old home. However, they are beautiful, mehudar mezuzos that I would like to use in my new dwelling. Is there any way that I can take these mezuzos with me?”

Question #2: “My landlord is not Jewish, but this is a neighborhood where only frum Jews are moving in. Do I remove my mezuzos when I leave?”

Question #3: As I was preparing this article, someone called me with the following actual shaylah:

“We will be spending a few days with my ailing father who lives in Israel in an assisted living facility. We can stay in an apartment in his building, but there are no mezuzos on the doors. I know that in Israel one must place a mezuzah on one’s residence, even if one stays only overnight. I can borrow mezuzos for our stay; however, may I remove them when we depart?”

Answer: The obligation of placing mezuzos is incumbent on the person living in the house; nevertheless, when vacating the premises, one is usually required to leave the mezuzos in place. If one wants money for the mezuzos that are being left behind, the new resident is required to pay for them (Rama, Yoreh Deah 291:2).

In explaining these laws, the Gemara teaches:

When a Jew rents a house to a fellow Jew, the tenant is responsible to affix the mezuzos. However, when the tenant vacates, he may not remove them. On the other hand, a Jew who rents a residence from a gentile removes the mezuzos when he leaves (Bava Metzia 102a).

The Gemara subsequently describes a horrible calamity that befell someone who removed his mezuzos when he was prohibited from doing so. (If you are anxious to know what happened, I refer you to the Gemara.) Thus, removing mezuzos involves not only a halachic violation, but also a significant safety concern (Tzavaas Rabbi Yehudah HaChasid,addendum #7).

BUT WHY NOT?

It is difficult to understand why halachah requires one to leave the mezuzah behind: When a resident vacates a dwelling, he has no obligation to guarantee that mezuzos remain on its doorways. So why can’t he take his mezuzos with him?

There are actually two reasons, each requiring its own introduction, why one may not remove the mezuzos.

APPROACH #1: DISDAIN OF MITZVOS – BIZUY MITZVAH

The first approach derives from the concept of bizuy mitzvah, treating a mitzvah object inappropriately: Removing the mezuzah is considered improper abandonment of a mitzvah object.

But if this is so, shouldn’t it apply to other mitzvos as well? For example, may I remove tzitzis from a garment without due cause?

REMOVING TZITZIS FROM A GARMENT

The Gemara debates whether one may remove the tzitzis of one garment to tie them onto another four-cornered garment. The Amora Rav prohibits moving tzitzis from one garment to another, contending that this is bizuy mitzvah. His contemporary, Shmuel, permits moving the tzitzis from one garment to another, since they are still utilized for a mitzvah (Shabbos 22a). Both Rav and Shmuel prohibit removing the tzitzis when he will not use them on another garment as an act of bizuy mitzvah (She’iltos, Shlach; Shulchan Aruch, Orach Chayim 15:1). That is, removing tzitzis from a garment without placing them onto another garment is considered disrespectful. We follow Shmuel’s ruling, and therefore one may remove tzitzis from one garment to place them on another. One may also replace tzitzis with more mehudar ones, even if he will not use the removed tzitzis, since upgrading to a higher standard demonstrates increased respect for the mitzvah, the exact opposite of bizuy mitzvah (Taz, Orach Chayim 15:2).

REMOVING THE MEZUZAH

Just as Shmuel ruled that one may remove tzitzis from one garment to place them on another, but one may not remove them if one is not planning to place them now onto another garment, we can now appreciate why one may not remove a mezuzah upon vacating a residence, since this demonstrates disrespect for the mezuzah that is being forcibly retired from its role (She’iltos, Parshas Shlach; Tosafos, Shabbos 22a, s.v. Rav; Ritva, Bava Metzia 102a). (It would seem that one can derive from this that it is prohibited to forcibly retire someone from a position, or that one should strongly reconsider laying off employees, but we will leave this topic for a different time.) We will soon discuss whether the prohibition applies, even when one intends to use the mezuzah elsewhere.

By the way, the authorities dispute whether the new tenant, entering a house with mezuzos already on the door, recites a bracha, Baruch Atta Hashem Elokeinu Melech haolam asher kideshanu bemitzvosav vetzivanu ladur babayis sheyesh bo mezuzah (Magen Avraham 19:1; Shu”t Rabbi Akiva Eiger, end of #9). The reason why this bracha sounds so unfamiliar is that it refers not to placement of a mezuzah on the doorpost, but to entering a new dwelling where the mezuzah is already present. In practice, most late authorities follow the ruling of the Chida that one does not recite a bracha on a mitzvah if one is not actively performing the mitzvah (Birkei Yosef, Orach Chayim 19:2).

MOVING THE MEZUZAH FROM ONE HOUSE TO ANOTHER

At this point, we should note an important factor. If the only reason that one may not remove the mezuzah is due to bizuy mitzvah, is one permitted to remove a mezuzah from the “old” building to install it in one’s new residence? Indeed, those authorities who prohibit removing the mezuzah only because of bizuy mitzvah explain that one may remove a mezuzah from one building to install it in a new place (She’iltos, Shlach; Ritva, Bava Metzia 102a).

APPROACH #2: DIVINE PROTECTION

Most authorities explain that there is an additional reason, unique to mezuzah, why one must leave the mezuzah behind even if one wants to use it elsewhere. Although the primary reason a Jew observes any mitzvah is to fulfill Hashem’scommandment, the mitzvah of mezuzah has an additional benefit because it protects our homes and our families from mishap. Removing the mezuzah eliminates this Divine shield, exposing one to tragedy and misfortune (Tosafos, Bava Metzia 101b s.v. lo; Shitah Mekubetzes, Menachos 41b, note 24; Tosafos, Shabbos 22a s.v. Rav in his second answer). Because of this, there is a widespread practice to check one’s mezuzos if, G-d forbid, one is experiencing difficulties in one’s home, since these problems might indicate that the mezuzos are not providing the adequate protection that they should.

This approach understands that even though someone vacating a house is no longer responsible for there being mezuzos on the doors, removing them reduces the Divine protection on the domicile for the next Jewish person moving in. We now comprehend why removing the mezuzah may expose someone to danger, as the Gemara records.

If the property belongs to a gentile, however, one may, and according to many authorities must, remove the mezuzah, since removing the mezuzah is not depriving it of fulfilling a mitzvah, and the protection provided is only for Jews. Similarly, one may remove tzitzis from a garment that will no longer be used to fulfill a mitzvah (Rama, Orach Chayim 15:1 and Magen Avraham ad loc.).

HOW DO WE RULE?

The accepted halachic practice recognizes both concerns, forbidding one from removing the mezuzah to a new location. However, in an extenuating circumstance where someone is moving to a new residence and has no access to a kosher mezuzah, one may rely on the first opinion and take the mezuzah with him (Birkei Yosef, Yoreh Deah 291:2).

YOU CAN TAKE IT WITH YOU

Despite our conclusion that one should generally not remove the mezuzos when vacating a house, there are instances when one is required to do so. As I mentioned above, the Gemara notes that one who rents from a gentile should remove the mezuzos upon leaving (Bava Metzia 102a). The authorities dispute whether this is simply permission to remove the mezuzah, or whether one is required to do so. Rav Yaakov Emden (Shaylas Yaavetz 2:121) rules that one must remove the mezuzah, out of concern that the gentile will treat it inappropriately, whereas the Aruch HaShulchan (Yoreh Deah 291:3) implies that it is permitted, but not actually required, to remove the mezuzah under such circumstances.

CHANGING OWNERSHIP

What is the halachah if a Jew vacates a residence that he was renting from a gentile, but a different Jew is moving in? May/should the first Jew remove the mezuzah when he leaves, since the owner of the building is non-Jewish, or must he leave the mezuzah for the new Jewish resident?

Rav Yaakov Emden discusses a similar case: A Jew was renting a house from a gentile who then sold the house to a different Jew. The tenant will be moving out before the change of ownership takes effect. Should he remove the mezuzah before he leaves, since the house is still owned by a gentile, or is this forbidden, since a Jew will soon be acquiring the house and moving in? On the one hand, we do not want to leave the house mezuzah-less, yet there is a concern that the gentile owner may deface or steal the mezuzah before the Jew moves in.

Rav Emden rules that the tenant should remove the mezuzah before he vacates, out of concern that the gentile may treat the mezuzah inappropriately. He also quotes the Maharil, who requires removing the mezuzah because one may not give a mezuzah to a gentile. However, if the gentile’s sales contract with the purchasing Jew specifies that the mezuzah is included, the tenant should leave the mezuzah (Shaylas Yaavetz 2:121).

GENTILE LANDLORD, JEWISH TENANT

Rav Emden’s case is when the gentile has sold the property to a new Jewish owner. What is the halachah if the property remains the gentile’s, but he usually rents to Jews? Should one leave the mezuzah for the next Jewish occupant or not?

Beis Lechem Yehudah (Yoreh Deah 291:1) rules that one should remove the mezuzos, even if the gentile landlord usually rents to Jews, as long as the next Jewish tenant is not moving in immediately.

We can now answer one of our opening questions: “My landlord is not Jewish, but this is a neighborhood where only frum Jews are moving in. Do I remove my mezuzos when I leave?”

This depends. If a new tenant is moving in immediately, one should leave the mezuzos for him. However, if there will be a time lag before he moves in, one should remove the mezuzos — out of concern that, in the interim, they may be abused.

There are other instances when one is required to remove the mezuzah and, accordingly, no calamity will result from doing so. If there is concern that someone may damage or deface a mezuzah that is left behind, one must remove the mezuzah. For example, if the residence will be painted, the mezuzos must be removed to prevent their becoming invalidated. Even if the landlord is Jewish and the new tenant is also Jewish, if the apartment will be painted between residents, the vacating tenant should remove the mezuzos to save them from damage, which is certainly bizuy mitzvah, and no harm will befall him for doing so. Once he has removed the mezuzos for a legitimate reason, he is not required to return them. The new tenant is now responsible to affix new mezuzos.

Similarly, if there is concern that the mezuzah will be stolen or otherwise abused, one should remove it.

NEW RESIDENT HAS HIS OWN MEZUZOS

As I mentioned earlier, although the first resident is required to leave his mezuzos behind, he is technically permitted to charge the new tenant for them. What is the halachah if the new tenant wants to install his own mezuzos rather than purchase or receive gratis those of the previous tenant? Does this present any halachic problem, and is there any basis for a safety concern in this instance?

The contemporary authorities assume that if the new resident wants to install his own mezuzos, he may remove the “old” mezuzos owned by the previous tenant and put up his own. In this instance, one is not leaving the house unprotected, since new mezuzos are immediately placed on the doorposts. Based on this ruling, there is a common practice of having the new tenant, or his agent, remove the old mezuzos and install the new ones.

One should be careful to remove the “old” mezuzah before installing the new one, since having two mezuzos on one’s door violates the prohibition of adding to the Torah’s mitzvos, bal tosif (Pischei Teshuvah 291:2). Just as one may not add a fifth parsha to one’s tefillin when the Torah requires four, and just as a kohen may not add a fourth bracha to thethree brachos of duchening, so may one not add a second mezuzah to the doorpost when the Torah requires only one. For the same reason, one who moves to a house that has an old, painted over mezuzah on the door must remove that mezuzah, even if it is probably invalid, and not just affix a kosher mezuzah alongside it.

MEZUZAH SWITCH

At this point, we can now address our first question:

“We are moving residences, and I understand that I must leave the mezuzos in my old home. However, they are beautiful, mehudar mezuzos that I would like to use in my new dwelling. Is there any way that I can take these mezuzos with me?”

The answer: One may remove the nice mezuzos one has on his door and replace them with kosher, non-mehudar mezuzos. Since one is leaving the house with a kosher mezuzah, this suffices to protect the house (Da’as Kedoshim, Yoreh Deah 291:1).

At this point, we can discuss our third question, concerning someone using a house in Eretz Yisrael who borrowed a mezuzah. It is indeed true that Chazal required a person to place a mezuzah on his doorpost in Israel, even if he stays only overnight. However, may he remove the mezuzah when he vacates?

In this case, there is an interesting complication, since the person borrowed a mezuzah and must return it. Assuming that the landlord and/or future residents are/will be Jewish, he cannot leave the house without a mezuzah. He can, of course, resolve the problem by putting up replacement mezuzos for the borrowed ones, but this is a solution that he wants to avoid.

The problem was resolved by contacting the management of the building. The management was interested in having a mezuzah on the door of the residence and took care of the matter.

MEZUZAH REWARDS

Aside from fulfilling a mitzvah commanded by Hashem, the mitzvah of mezuzah serves to remind us constantly of His presence, every time we enter and exit our houses. In addition, the Gemara teaches that someone who is meticulous in his observance of the laws of mezuzah will merit acquiring a nice home (Shabbos 23b). We thus see that care in observing this mitzvah not only protects one’s family against any calamity, but also rewards one with a beautiful domicile. May we all be zocheh to be careful, always, in our observance of the laws of mezuzah and the other mitzvos, and reap all the rewards, both material and spiritual, for doing so!

Is It Time for Maariv?

sunset

Question #1:

When is the correct time to daven maariv?

Question #2:

Why is there no repetition of shmoneh esrei for maariv?

Question #3:

Must women daven maariv?

Introduction:

In citing the source for our three daily prayers, the Gemara quotes two approaches. Rabbi Yosi ben Chanina explains that our three daily prayers were founded by our forefathers: Avraham instituting shacharis, Yitzchak mincha, and Yaakov maariv. The source that Yaakov introduced maariv is in the second verse of parshas Vayeitzei, where it says vayifga bamakom and the Gemara explains the word vayifga to mean he prayed. The Gemara also cites Rabbi Yehoshua ben Levi’s statement that shacharis and mincha were established by the Anshei Keneses HaGedolah (the great leaders of Klal Yisrael who lived during the time of the building and the beginning of the Second Beis Hamikdash) to correspond to the offerings that were brought every morning and afternoon in the Beis Hamikdash (see Bamidbar 28:1-8), whereas maariv corresponds to the burning of the remaining parts of these offerings that transpired at night (Brachos 26b).

What we call “maariv” actually fulfills three different mitzvos, and the above-quoted Gemara is referring to only one of these mitzvos, the part called the tefillah, which are the prayers we recite as shmoneh esrei. (The avos did not establish the shmoneh esrei, but the concept that one should daven three times a day. The text of the shmoneh esrei was written by the Anshei Keneses HaGedolah.)

The other two mitzvos that we fulfill when we pray maariv are kriyas shma, whose recital is required min haTorah every morning and night (Brachos 2a), and the birchos kriyas shma, which Chazal instituted to surround the shma with brachos (Mishnah Brachos 11a). These brachos together with the shma constitute the part of the davening between borchu and the shmoneh esrei. (Ashkenazim in chutz la’aretz also add another bracha that begins with the words Baruch Hashem LeOlam between the birchos kriyas shma and the kaddish that precedes the shmoneh esrei.)

Although we are very familiar with how we recite the order of the different parts of maariv, we should be aware that, at the time of the Gemara, this order was a topic of dispute between Rabbi Yochanan, whose opinion we follow, and Rabbi Yehoshua ben Levi, who contended that the shmoneh esrei of maariv should be recited before shma and the birchos kriyas shma, so that one recites shma closer to the time one retires (Brachos 4b).

Why is there no maariv repetition?

As a preamble to answering this question, let us examine a famous event that occurred shortly after the destruction of the Beis Hamikdash, after the main Sanhedrin and its associated yeshiva had been forced to evacuate Yerushalayim and reestablish itself in the city of Yavneh. To understand this anecdote properly, we must realize the historical context that the Beis Hamikdash, which had been the central focus of all organized Torah life, had been recently destroyed, and there was concern whether an organized Jewish community could maintain itself without the Beis Hamikdash.

Rabbi Shimon bar Yochai, then a young student in the yeshiva, posed the following query: Is maariv (referring to the tefillah part) reshus, usually translated as “optional,” or is it required? First he brought his inquiry to the great scholar Rabbi Yehoshua, the rebbe of Rabbi Akiva, who ruled that tefillas arvis reshus. Afterwards, Rabbi Shimon shared his question with Rabban Gamliel, who was the rosh yeshiva and the head of the Sanhedrin, who responded tefillas arvis chovah, the maariv prayer is required.

Rabbi Shimon noted that he had previously heard Rabbi Yehoshua’s opinion to the contrary, to which Rabban Gamliel responded that Rabbi Shimon should wait until all the scholars had arrived in the Beis Hamedrash. After the students entered the Beis Hamedrash, Rabbi Shimon repeated his inquiry, and Rabban Gamliel immediately answered tefillas arvis chovah. Rabban Gamliel then asked whether anyone disputed this, to which Rabbi Yehoshua responded in the negative. Rabban Gamliel challenged Rabbi Yehoshua, announcing that it had been reported that Rabbi Yehoshua had ruled that tefillas arvis reshus. Rabban Gamliel then ordered Rabbi Yehoshua to arise so that they could hear the testimony that he had indeed ruled maariv to be only reshus. Rabbi Yehoshua acknowledged that he had indeed ruled this way. Rabban Gamliel then continued the lecture, without granting Rabbi Yehoshua permission to sit down.

This continued for a short while, until the students objected to Rabban Gamliel’s highhanded treatment of Rabbi Yehoshua. The lecture was stopped, and the decision was reached to remove Rabban Gamliel from his position as rosh yeshiva and as head of the Sanhedrin, and to install Rabbi Elazar ben Azaryah in his stead. Eventually, all understood that although the consensus was that Rabban Gamliel was wrong for his strong tactics, his motives were completely sincere. He had been ruling with an iron fist to maintain a central authority for Torah in Klal Yisrael, out of concern that in the absence of such strong authority, the centrality of Torah leadership over Klal Yisrael may dissipate. Eventually, Rabban Gamliel was returned to his position with Rabbi Elazar ben Azaryah serving as rosh yeshiva and the head of the Sanhedrin one week in four (Brachos 27b- 28a).

Is Maariv Optional?

Ultimately, the halachic conclusion is that maariv is a reshus. Is maariv really optional? Can one decide every night if he wants to skip maariv?

The Rishonim already note a ruling that appears to contravene the statement that maariv is optional. Someone who missed maariv must recite a makeup prayer, called a tefillas tashlumim, after the next morning’s shacharis. However, this ruling appears to contradict the statement that tefillas arvis reshus. If maariv is optional, why must one make up the missed prayer?

In response to this question, Tosafos explains that when the Gemara states that maariv is reshus, it does not mean that it is optional, but that it is less obligatory than other requirements. For example, should one need to choose between fulfilling two different mitzvos in a situation where one cannot fulfill both of them, maariv is pushed aside (Tosafos, Brachos 26a s.v. Ta’ah). In all other circumstances, one is obligated to recite maariv.

The Rif answers the question in a different way. He explains that indeed maariv is technically not obligatory. However, someone who decided to recite maariv makes it obligatory on himself and must pray correctly, even if he needs to pray a makeup.

Must a Woman Daven Maariv?

Does any other halachic distinction result from this difference of opinion between Tosafos and the Rif? It seems that a difference results regarding whether, according to those authorities who rule that women are obligated to daven shacharis and mincha daily, a woman must also daven maariv daily. According to Tosafos, who contends that maariv is obligatory, a woman should be required to daven maariv daily. This ruling is stated by the Aruch Hashulchan (106:7). However, other authorities rule that women are not obligated to daven maariv since they never accepted it as a responsibility (Graz 106:2; Mishnah Berurah 106:4; cf. Magen Avraham 299:16). This approach reflects the opinion of the Rif that although maariv was originally reshus, since men daven maariv regularly, they must continue to do so, but women, who for the most part do not regularly daven maariv, are exempt from doing so (see Shach, Yoreh Deah 375:14).

Why should Yaakov lose out?

This previous discussion should arouse a question in every one of our readers. Since Yaakov Avinu introduced tefillas maariv, why is it treated “second rate” – why is maariv reshus, and only the tefillos founded by Avraham and Yitzchak are obligatory?

Why is Maariv Different?

To answer this question, let us revert to our previous discussion – where I noted that there were two approaches, one contending that the daily prayers were instituted by our forefathers, and the other maintaining that the prayers were created to correspond to the daily offerings. According to both of these approaches, we can explain why maariv is treated somewhat differently from shacharis and mincha.

According to the interpretation that the forefathers instituted the daily prayers, although Yaakov was the first to daven maariv, he had not intended to daven so late in the day, but Hashem caused the sun to set suddenly, giving Yaakov no choice but to daven after nightfall. Since this davening was performed not as Yaakov’s first choice, but because he had no other option, the prayer instituted this way is reshus (Pnei Yehoshua, Brachos 26b s.v. Mihu).

According to the approach that our prayers correspond to the daily offerings, shacharis and mincha each represent the daily korban tamid that was offered in the Beis Hamikdash. Maariv represents the remaining parts of the daily tamid that were burnt the following night on the mizbei’ach. As such, since this step in the processing of the korban is non-essential, the prayer is also not required (Rashi to Shabbos 9b s.v. Lemaan).

Repetition of Maariv

With this background, we can now answer the question we raised above: Why does maariv not include a chazzan‘s repetition of shmoneh esrei, as is done for both shacharis and mincha. The answer is that although today maariv is obligatory, it is not the same level of requirement as are shacharis and mincha. Since everyone is required to daven shacharis and mincha, Chazal were concerned that unlettered individuals would be unable to fulfill the mitzvah. Chazal therefore instituted the repetition of the tefillah so that those unable to daven otherwise can fulfill their requirement by listening to the chazzan‘s prayer. However, since maariv is reshus, Chazal were less concerned that the unlettered would be unable to fulfill this responsibility and therefore they did not institute a repetition.

When Do We Daven Maariv?

Having established that maariv is indeed obligatory, our next question is: When is the earliest time that one may begin maariv? Indeed, although the Mishnah establishes times for the other prayers, it leaves the time for maariv fairly vague. The accepted halachah is that once the time for davening mincha is over, one may daven maariv (Tosafos, Brachos 2a).

So now we need to resolve: Until when can one daven mincha?

The Mishnah records a dispute between the Tana’im regarding this question. According to the Sages, one is allowed to daven mincha until “the evening,” while according to Rabbi Yehudah, the last time for mincha is “plag hamincha,” which I will soon explain. The dispute between them is dependent on how late one may offer the afternoon korban tamid. According to Rabbi Yehudah, one may offer it only until plag hamincha; whereas according to the Sages, one may offer it until evening (Brachos 26b).

So we now know. According to Rabbi Yehudah, one may daven mincha until plag hamincha, and maariv after plag hamincha, whereas the Sages contend that one may daven mincha until “evening,” and maariv afterwards.

When is Evening?

Of course, now we need to find out when is “evening,” when is plag hamincha, and whether we rule like the Sages or like Rabbi Yehudah.

The authorities dispute whether “evening” here means shortly before tzeis hakochavim, nightfall (see Rama 233:1 and Mishnah Berurah #14) or whether it means sunset (Rabbeinu Yonah; authorities cited by Shaarei Tziyun 233:18). According to the first approach, the Sages hold that one may daven mincha until nightfall but one may not daven maariv until after nightfall. According to the second approach, one may not daven mincha after sunset but one may daven maariv then.

When is Plag Hamincha?

Rabbi Yehudah ruled that the latest time to daven mincha is a point in time called plag hamincha. When is plag hamincha? According to the most commonly accepted interpretation, plag hamincha is calculated by dividing the time between sunrise and sunset into 48 “quarter-hour” segments. The point of time that is five of those segments prior to sunset is plag hamincha. Obviously, each segment will not be exactly fifteen minutes, but will vary according to the length of the day. An easier way to express this is to say that plag hamincha is 1 1/4 “halachic hours” (in Hebrew, sha’os zemaniyos) before sunset, where a “halachic hour” is defined as a twelfth of the time between sunrise and sunset. (There are other authorities who calculate the halachic hours and plag hamincha from halachic dawn, alos hashachar, until nightfall, tzeis hakochavim. In their opinion, plag hamincha is considerably later in the day than it is according to the first opinion quoted.)

Do We Rule like the Sages or like Rabbi Yehudah?

Now that we have discussed the dispute between the Sages and Rabbi Yehudah, we need to know how we rule so that we can determine when is the latest time for mincha and the earliest time for maariv. Most disputes in the Gemara are resolved either by the Gemara itself or by the early halachic authorities. However, in regard to this dispute, the Gemara states something unusual — that one can choose which opinion he wants to follow (Brachos 27a). One wishing to daven maariv after plag hamincha, following the opinion of Rabbi Yehudah, may do so, and one who would rather recite mincha after plag hamincha may follow the opinion of the Sages and do so.

Now our question is:

How consistent must I be? May I follow Rabbi Yehudah’s approach one day and the Sages approach on a different day? What about on the same day – may I daven mincha after plag hamincha following the Sages, and then daven maariv before sunset following Rabbi Yehudah?

Most Rishonim rule that one must consistently follow one of these two opinions. In other words, if one decides to daven maariv before sunset following Rabbi Yehudah, then he must be consistent and always daven mincha before plag. Once he follows Rabbi Yehudah’s ruling in this matter, he may no longer daven mincha after plag — to do so is contradictory (Rabbeinu Yonah, Brachos 18b, s.v. D’avad; Rosh, Brachos 4:3; Tur, Beis Yosef, and Shulchan Aruch 233). Being inconsistent is referred to as following a path that is tarti desasri ahadadi, two approaches that contradict one another, since neither Rabbi Yehudah nor the Sages approve of what he is doing, albeit for different reasons.

Some authorities permit one to follow Rabbi Yehudah on one day and the Sages on a different day, providing one is consistent on the same day by davening mincha after plag and maariv before sunset (Hashlamah and Mordechai, both quoted by Beis Yosef 233).

Notwithstanding this discussion, the frequent practice was to daven mincha and maariv together after plag hamincha, which appears to be inconsistent according to all opinions. Nevertheless, the poskim acknowledge that this was commonly done and suggest different reasons why this practice was accepted, or at least tolerated. Some explain that if this approach was not accepted, many communities would be unable to consistently have a regular minyan, or people would not daven maariv since they would not wait in shul until the later time to daven maariv. As a result, for the sake of tefillah betzibur many authorities allowed the tarti desasri but ruled that someone who davened mincha after plag and is davening maariv privately (beyechidus) must wait until nightfall to daven maariv (Magen Avraham 233:7).

We should note that, according to the accepted halachah, one who davens maariv before nightfall, should recite the full shma over again after nightfall (Shulchan Aruch Orach Chayim 235:1). This is for two different reasons. Firstly, although Rabbi Yehudah ruled that the cutoff time between mincha and maariv is plag hamincha, this is only germane to the shmoneh esrei parts of our davening, whose timing is dependent on the daily tamid offerings as mentioned above. However, the mitzvah of reading shma must be fulfilled at the time people retire for the evening, as the Torah says beshachbecha, and few people retire for the evening before it gets dark. Since the time for reciting the evening shma is when most people might consider it bedtime, one cannot not fulfill this mitzvah until nightfall according to most opinions. (However, see Rabbeinu Tam, quoted by Tosafos, Brachos 2a.)

Secondly, the requirements of davening at a specific time and reciting the birchos kriyas shma are rabbinic in nature rather than Torah mandated, which allows some leniency. However, regarding the Torah requirement of reading the shma, we should follow the stricter approach and recite it again after it is definitely nightfall.

I’ll share one anecdote to show how far we should be concerned that one recites shma after it is dark. One gadol I knew from the previous generation, who established his community in America, was concerned that baalei batim would not recite shma after dark, and thus not fulfill the mitzvah min haTorah properly. He also knew that if the break between mincha and maariv was too long, many would not attend shul regularly. He thus established in his community that they began mincha after sunset, followed by a fifteen minute shiur and then maariv so that people would daven maariv in its correct time. In other words, he decided that the entire community should daven mincha at a time that he himself considered non-optimal according to some poskim, in order to guarantee that everyone recite shma properly in its proper time! Although this approach is certainly not the most accepted, we should all be aware of the many considerations

Contemporarily, most communities have many minyanim scheduled both for mincha and for maariv. An individual can, therefore, with a small amount of planning, daven in a way that he avoids any question of davening tarti desasri.

It’s About Time

Quiz Question #1: Whose bris is first?

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

Question #2: Isn’t he too late?

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

Question #3: Frum receptionist

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

What does our parsha have to do with time?

This week’s parsha includes the mitzvah of establishing the Jewish calendar, providing an excellent opportunity to discuss what to do when there is an uncertainty what day it is.

Bein Hashemashos

As we know, observing bris milah overrides even Shabbos. However, this is so only for a bris bizmanah; that is, a bris that transpires on the eighth day of the child’s life, but not a bris that is delayed. A bris that is delayed should take place at the earliest opportunity that halacha allows, but not on Shabbos or Yom Tov (see Shu’t Dvar Avraham 1:33; 2:1-3). One reason why a bris may be delayed is because of a medical concern, a topic we will leave for a future article. Another common reason why a bris is delayed: The baby was born during bein hashemashos, a halachic “twilight zone,” a time when we are unsure if it is already Shabbos or not, since we are uncertain whether this period of time belongs to the previous day or the next.

The Mishnah (Shabbos 137a) addresses this issue:

A child is circumcised on the eighth, ninth, tenth, eleventh, or twelfth – no earlier and no later. How can this be? The normal circumstance is the bris is on the eighth. If he is born during halachic twilight (bein hashemashos), his bris is on the ninth. If [he is born]on Friday’s twilight, he is circumcised on the tenth [that is, Sunday]. If Yom Tov falls on Sunday, he is circumcised on the eleventh [Monday]. If Rosh Hashanah falls on Sunday and Monday, then he is circumcised on the twelfth [day after birth, which is Tuesday].”

We see that the only time we perform the bris on Shabbos is when we are certain that the baby was born on Shabbos. If a baby was born during bein hashemashos on Friday evening, then he was born at a time that we are uncertain whether it is still considered Friday or it is already Shabbos. As the Gemara (Shabbos 34b) expresses it: We are uncertain whether bein hashemashos is day or night… and we treat it strictly regarding both days. Therefore, when a baby is born during bein hashemashos on Friday evening, we cannot perform the bris on Friday, because maybe the baby was born on Shabbos, and Friday is only the seventh day, too early to perform the bris. We cannot perform the bris on Shabbos, either, because maybe the baby was born on Friday, and Shabbos is the ninth day, not the eighth, and only a bris bizmanah, a bris performed on the eighth day, supersedes Shabbos. Since there is no choice, we are forced to postpone the bris to Sunday, as the first available opportunity. However, if a Yom Tov falls on that Sunday, the bris cannot take place on that day, either, since only a bris bizmanah supersedes Yom Tov, and not a bris that is postponed to a time after the eighth day. As a result, the earliest day to perform this bris is Monday.

Rosh Hashanah Starting on Sunday?!

Continuing the explanation of the Mishnah: If Rosh Hashanah falls on Sunday and Monday, then he is circumcised on the twelfth. If the baby was born during bein hashemashos of the Friday evening ten days before Rosh Hashanah, and the two days of Rosh Hashanah fall on Sunday and Monday, then the bris is postponed until Tuesday the day after Rosh Hashanah, which is the twelfth day from the Friday on which the baby was born.

But one minute: the first day of Rosh Hashanah cannot fall on Sunday! How does the Mishnah say differently?

Although our calendar is set up such that Rosh Hashanah cannot fall on Sunday, so that Hoshanah Rabbah does not fall on Shabbos and thus does not jeopardize observance of Hoshanos, at the time of the Mishnah, Rosh Hashanah could and did sometimes transpire on Sunday. When Rosh Chodesh and Rosh Hashanah were determined by the testimony of witnesses who observed the new moon (Rambam, Hilchos Kiddush HaChodesh 1:1, 7; 5:1), it was halachically more important to have Rosh Hashanah fall on its more correct day than to be concerned about having Hoshana Rabbah fall on Shabbos (Ha’emek She’ailah 67:22; Gri’z, Hilchos Kiddush Hachodesh). Only once it became impossible to declare Rosh Chodesh on the basis of observation, and Hillel Hanasi created a permanent calendar, did he include some innovations, including making certain that Hoshanah Rabbah does not fall on Shabbos, by making sure that the first day of Rosh Hashanah does not fall on Sunday (Rambam, Hilchos Kiddush Hachodesh 5:2). (There is an alternative approach, that of Rav Saadiya Geon and Rabbeinu Chananel, to explain this subject, which will be left for another time.)

Why Did the Younger Baby have an Earlier Bris?

At this point, we already have enough information to answer Quiz Question #1 above: Why would a younger twin have his bris earlier than his healthy, older brother? The answer is that the older twin was born during bein hashemashos on Friday evening — at a time that we are uncertain whether he was born on Friday or on Shabbos. Because of this uncertainty, we cannot perform his bris on either Friday or Shabbos, as explained above, and his bris is postponed to Sunday. However, his younger brother was born at a time that is certainly Shabbos, and therefore his bris takes place on Shabbos.

When is Twilight?

This explains the fundamental principles, but still leaves a basic question: When is bein hashemashos?

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

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

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

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

What a Phenomenal Dusk!

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

When Three Stars Appear

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

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

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

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

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

Conflicting Gemara Passages

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

Rabbeinu Tam’s Explanation

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

Since, according to Rabbeinu Tam, it is definitely still day until about an hour after sunset, there is no problem with davening mincha considerably after sunset. Thus, there are communities who base themselves on Rabbeinu Tam’s opinion and daven mincha well after sunset.

Rabbeinu Tam and a Friday Night Birth

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

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

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

The opinion of the Gra

Since we know that many highly observant Jews do not wait this long for Shabbos to end, there must be another way of interpreting the two passages of Gemara that reaches a different halachic conclusion. Indeed, one such approach is that of the Gra, who presents a completely different approach to explain the seeming contradiction between the two passages of Gemara. He contends that both passages use shekiyah to mean sunset, and this is the same sunset to which we customarily refer — however, they are not referring to the same tzeis hakochavim. The Gemara in Pesachim that refers to tzeis hakochavim being 72 minutes after sunset means that all visible stars of the firmament can now be seen, a time that the Gra calls tzeis kol hakochavim, literally, when all the stars have come out, whereas the Gemara in Shabbos refers to the time at which three “middle-sized” stars are visible. The Gra concludes that sunset marks the beginning of bein hashemashos, the time when we are uncertain whether it is day or night, with tzeis hakochavim occurring when three “middle-sized” stars are visible. The Gemara in Pesachim that requires 72 minutes until the stars appear is not discussing when the day ends – the day ended much earlier — but was concerned about other laws that are affected by the appearance of a skyful of stars.

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

Mincha tima!

At this point, let us refer to our other opening question: “I have often wondered why my chassidishe brother-in-law davens mincha after sunset, when the Mishnah Berurah rules that one should not daven this late!”

The Gra rules that one should not daven mincha after sunset, since this is already a time at which the previous day may have already passed. Thus, it is already time to daven maariv. However, according to Rabbeinu Tam, one may daven mincha lechatchilah until 58½ minutes after sunset.

How do we rule?

Although in the past there were Torah communities who did not follow the Gra at all, even regarding the onset of Shabbos, today it is universally accepted to consider it Shabbos from sunset on Friday. Many communities follow the Gra’s opinion fully, and do not wait until 72 minutes after sunset on Saturday to end Shabbos. In a responsum on the subject, Rav Moshe Feinstein took great umbrage to this approach, contending that since a large number of Rishonim followed Rabbeinu Tam’s approach, one should act stringently and not end Shabbos until after Rabbeinu Tam’s time is over (Shu’t Igros Moshe, Yoreh Deah 4:17:26). As in all areas of halacha, the reader is encouraged to discuss the shaylah with his or her mara de’asra for a final ruling.

*all names have been changed to protect privacy

Rus, David, and the Prohibition of Marrying Moavites

In this week’s parshah, Ki Seytzei we study how the nation of Moav hired the evil Bilaam to curse the Jewish people. To guarantee that individuals who have inherited such disturbing character traits do not damage Klal Yisroel’s  pristine moral nature, the Torah prohibits a Moavite from marrying into Klal Yisroel. As the Torah expresses itself:

An Ammonite or a Moavite may not enter the congregation of Hashem. Even the tenth generation is not to enter the congregation of Hashem, forever. Because of the fact that they did not come forward with bread and water when you were on your way out of Mitzrayim, and because of the fact that they hired Bilaam ben Be’or of Pesor, Aram Naharayim, to curse you (Devarim 23:4, 5).

Since there are no indications that the nation of Ammon participated in employing Bilaam, the Ramban (ad loc.) explains that each of the two reasons specified here applies to only one of the two nations involved: The Ammonites are excluded from marrying into Klal Yisroel because they did not provide food for the Jewish people, thus not demonstrating any hakaras hatov for the fact that Avraham Avinu had saved their ancestor, Lot, and Moav is banned for hiring Bilaam. The Mishnah (Yevamos 76b) rules Ammoni velo Ammonis, Moavi velo Moavis, that the prohibition of marrying into the Jewish people applies only to male Ammonites and Moavites and their male descendants. Thus, a male member of the Moavite people who converts to Judaism is still prohibited from marrying someone born Jewish. However, a female Moavite convert and all her descendants, and the female descendant of a male Moavite may freely marry within Klal Yisroel. It is for this reason that Boaz was permitted to marry Rus, who was a Moavite.

The Gemara explains that only Ammonite men are included in the ban, since only men would have been involved in going out to present food and drink to the Jews. The female Ammonites’ lack of involvement in this mitzvah may have been because of their extreme modesty – they never left their houses to be near unfamiliar men. Similarly, since we can assume that Bilaam was hired by the Moavite men, only they are prohibited from marrying into the Jewish people, and not the women (Yerushalmi).

The Story of Rus

In addition to the above quoted Mishnah, several other early sources discuss whether the prohibition preventing Moavites and Ammonites from marrying Jews is restricted to males or extends also to females. The first time we find this matter discussed is in the days of Rus. Megillas Rus tells us that Ploni Almoni, an uncle of Rus’ late husband Machlon, was concerned pen ashchis nachalasi, lest I destroy my descendants (Rus 4:6), which Rashi explains to be a concern that his descendants born from Rus would not be allowed to marry other Jews, because of their Moavite ancestor. Rashi there explains that Ploni Almoni erred regarding the halachic rule of Ammoni velo Ammonis.

Yet, the comment of Ploni Almoni is peculiar. If he felt that female Moavites are prohibited from marrying Jews, why was he concerned only that his descendants would be banned and not about whether he himself was permitted to marry Rus? On the other hand, if he was willing to marry Rus because he knew that the prohibition is restricted to male Moavites, why was he concerned about his children? We will return to this question shortly.

The Story of David

The issue of whether Moavite women may marry Jews surfaced again concerning the lineage of King David, who was descended from Rus. A fascinating passage of Gemara describes an early halachic debate among several known Biblical personages who, we see from this Gemara, were exemplary Torah scholars. Doeig HaEdomi, a member of King Shaul’s retinue, and Avner ben Ner, Shaul’s chief of military staff, debate the halachic issue concerning whether Moavite women may marry Jews. The discussion between them is what one expects from Talmidei Chachamim of the first order, vociferously debating a halachic issue in your local Beis Medrash. But first let us examine the historical context.

Background to the Story

After Shaul had failed to destroy Amalek and he was told that he would, therefore, lose the monarchy, Hashem commanded Shmuel to clandestinely anoint David, the youngest of Yishai’s eight sons, as the new King of Israel. Shmuel carried out this mission, but it was kept a complete secret.

At this time, Shaul began suffering bouts of depression. Shaul’s advisers sought out someone who could play music and thereby assist Shaul to cope with his depression. One of Shaul’s attendants knew David and suggested him for the position. David tried out for the position and was very successful. Shaul then sent a message to Yishai, David’s father, requesting that David be allowed to assume this position permanently. David did fill the position; Shaul had a very deep love for David and had him assume the additional role of armor bearer. Shaul sent a second message to Yishai requesting that David remain with the royal family “for he has found favor in my eyes” (Shmuel I 16:14-23).

At this point, the Pelishtim (Philistines) waged war against the Jews. The Pelishtim had a giant warrior among them, Golyas (known in English as “Goliath”), who stood over six amos tall (well over ten feet!). Golyas would taunt the Jews with his powerful, terrifying voice. Golyas suggested that a single representative of the Jews face off in battle against him, and in this manner it could be determined which nation would be enslaved to the other. At the same time, Golyas screamed blasphemous things about Hashem. The Jewish troops were terrified of Golyas (Shmuel I 17:1-11).

At the time, David’s three oldest brothers were serving in Shaul’s army. Yishai, David’s father, who is described as zakein ba va’anashim, meaning a well known personage, sent David to bring provisions to his brothers at the battlefront (Shmuel I 17:12). David discovered that Shaul was offering a vast reward to whoever would vanquish Golyas.

David the Brave

David, after having gathered information about the situation, volunteered to fight Golyas by himself. Shaul discouraged David, noting that Golyas was an experienced warrior, whereas David was not.

David replied that Hashem is the One who provides all salvation, and that Hashem often helped David fight lions and bears while he was tending his sheep. Shaul gave David his blessing.

Shaul’s armor was placed upon David, but David said that he could not move freely with the armor, and removed it. David then took five smooth stones from the stream and placed them in his shepherd’s bag.

When Golyas saw David, he taunted him, saying “I will offer your flesh to the birds of the heavens and the animals of the field,” to which David responded: “You come against me with sword, spear and javelin, and I come against you with the name of Hashem, Master of Armies, the G-d of the troops of Israel.” At this point, David took his slingshot, shot one stone that struck Golyas on the forehead, and Golyas fell dead. David then took Golyas’s sword, chopped off his head and demonstrated to all the Pelishtim that their hero was dead. The Pelishtim fled, and on that day the Jews vanquished their enemy.

Now, we come to the strangest part of the verse:

“And when Shaul saw David move forward against the Pelishti, he said to Avner, his general, ‘Avner, whose son is this lad?’ And Avner answered, ‘As you live, O King, I do not know.’ And the king responded, ‘Find out whose son is this lad’” (Shmuel I, 17:55-56).

This last part of the story appears bizarre. Both Shaul and Avner certainly knew David well — David was Shaul’s armor-bearer and the harpist who played to treat Shaul’s fits of depression. Furthermore, they were also familiar with Yishai who was a well-known personage and with whom Shaul had negotiated twice for David’s employ.

The Gemara Passage

As we can imagine, we are not the first to ask these questions: They form the basis for a fascinating Talmudic discussion (Yevamos 76b-77a).

The Gemara asks, why did Shaul ask Avner who David or Yishai was? He knew them both very well. The Gemara answers that he suspected that David might be the person who would be replacing him as king of the Jews. Shaul inquired whether David was descended from the branch of Yehudah that was destined to be the Jewish royal family. Thus, the question “Avner, whose son is this lad?” was not about David’s identity but, rather, it was a question about his genealogical roots.

At this point, Doeig HaEdomi piped up, “Rather than ask concerning whether he is appropriate to become king, you should ask whether he may marry into the Jewish people. After all, he is descended from Rus, the Moavite.” To this, Avner retorted that we know that the halachah is that only male descendants of Ammon and Moav are prohibited, and, therefore, Rus was permitted to marry into the Jewish people. Doeig, however, disputed the veracity of this ruling. At this point, a halachic debate ensued between Doeig and Avner concerning whether one can prove from the verses that the prohibition against Ammon and Moav is limited to males, or whether it extends also to the female descendants. Doeig won the upper hand in the debate, producing arguments, which his adversary could not refute, that females are also prohibited.

What was Doeig’s Argument?

As explained by the Ritva (ad loc.), Doeig insisted that the prohibition against marrying Ammonites applies equally to men and women of this nation. In his opinion, the Ammonite women equally share blame for the discourtesy they showed the Israelites, since the Ammonite women should have provided food and water. He disputes excusing their reticence to help as attributable to their extreme modesty, since the Ammonite women could have assisted the Jewish women.

But what about the Moavite women?

But wait one minute! This concern should not affect David, who was descended from Moav, not from Ammon, and the Moavite women cannot be accused of hiring Bilaam. However, Doeig contended that Moavite women are also prohibited. Although it may be true that Bilaam was hired by the men, since the prohibitions against marrying Moavites and Ammonites are mentioned together, just as female Ammonites may not marry Jews, the same applies to female Moavites (Rashba, Yevamos 76b).

When Avner was unable to disprove Doeig’s approach, Shaul referred the issue to the scholars who debated these matters in the Beis Medrash. These scholars also responded that the prohibition banning the marriage of Ammon and Moav applies only to males and not to females. Doeig then proceeded to demonstrate that their approach was incorrect, leading the scholars of the Beis Medrash to conclude that their previous assumption was wrong and that henceforth the halachah would be that female descendants of Ammon and Moav are prohibited to marry into Klal Yisroel. This ruling would seriously affect David and all his family members. Boaz had married Rus assuming that the prohibition banning Moavites applied only to males, and now the scholars of the Beis Medrash were considering banning Moavite and Ammonite women and all their descendants.

Amasa to the Rescue!

They were about to conclude that this is the halachah, when a different scholar, Amasa, who was also a general in Shaul’s army, rose and declared, “I have received a direct mesorah from Shmuel’s Beis Din that the prohibition is only on male descendants and not on female ones.” This last argument apparently turned the entire debate back in favor of Avner’s original position, and it was accepted that David and all of Yishai’s descendants could marry within Klal Yisroel (Yevamos 76b-77a).

What did Amasa’s declaration change? In what way did this refute Doeig’s arguments?

Based on a halachic explanation of the Rambam (Hilchos Mamrim 1:2), the Brisker Rav explains what changed.

There are two basic types of Torah laws:

(1) Those that are handed down as a mesorah from Moshe Rabbeinu at Har Sinai.

(2) Those formulated through the thirteen rules, called in English the hermeneutic rules on the basis of which we derive new halachos.

Let me explain each category by using examples:

Mesorah

We have a mesorah that the Torah’s requirement that we take “the fruit of a beautiful tree” on Sukkos refers to an esrog. No halachic authority in Klal Yisroel’s history ever questioned this fact, and for a very simple reason. We know this piece of information directly from the great leaders of Klal Yisroel, who received this information from Moshe Rabbeinu, who heard it directly from Hashem (Rambam, Introduction to the Commentary on the Mishnah).

Logic

However, there are also Torah laws that were not taught with a direct mesorah from Har Sinai, but are derived through the hermeneutic rules of the Torah. For example, there is a dispute among tana’im whether a sukkah requires four walls to be kosher or whether it is sufficient if it has three. This debate is based on two different ways to interpret the words of the Torah (Sukkah 6b).

Mesorah vs. Logic

Are there any halachic distinctions between the two categories of Torah-derived laws? Indeed, there are. The Rambam explains that when the position is based on logic, halachic authorities may disagree what the halachah is. Thus, there can be a dispute among tana’im whether a sukkah must have three walls or four. However, there can never be a dispute concerning a matter that Klal Yisroel received as a mesorah. Once a greatly respected Torah authority reports a mesorah from his rebbe, who in turn received this mesorah in a direct line from Moshe Rabbeinu, that a specific halachah or a principle is true, no one else can question this mesorah. Thus, any dispute concerning a halachah of the Torah can concern only something derived logically with hermeneutic principles.

There is another halachic difference between a ruling that was taught by mesorah and one that was derived through logic. The final decider of all halachah in every generation (until the era of the Talmud) was the Sanhedrin, also often called the Beis Din HaGadol, the supreme Beis Din. Once all the great Torah scholars of Klal Yisroel participated in a debate in the Beis Din HaGadol, which then reached a decision, this conclusion was and is binding on all of Klal Yisroel (Rambam, Hilchos Mamrim 1:1; Comments of Ramban to Sefer HaMitzvos, Rule II).

The question is, can a Beis Din HaGadol overturn a ruling that had been decided previously, either its own decision or one made by an earlier Beis Din HaGadol? The answer to this question depends on whether the ruling involved is based on logic or whether it was taught by mesorah. When the original decision was reached by logic, then a later Beis Din HaGadol has the authority to reexamine the case, and, should it decide to, overturn the previous ruling.

However, this can never happen with a law whose source is mesorah. There can be no debate, no discussion and no overturning. Once a recognized scholar announces that he received this law as a mesorah from Sinai, this is accepted by all, and no debate or questioning of this mesorah may transpire.

Thus, it makes a tremendous difference in halachah whether something is a mesorah, which means it is not subject to argument or debate, or whether it is based on an interpretation of the hermeneutic rules, which is subject to argument and debate.

On the basis of these rules of the Rambam, the Brisker Rav (in his notes to the book of Rus in his Chiddushim on Tanach) explains why Amasa’s argument closed the debate in David’s favor. Doeig, Shaul, Avner, and the other members of Shaul’s Beis Medrash all assumed that limiting the prohibition of Ammoni and Moavi to males was based on hermeneutic exposition, and thus debatable. Furthermore, if Doeig would succeed in demonstrating that his approach was logically correct, the long-established interpretation permitting Rus to marry into the Jewish people would be overturned. Indeed, the result of this ruling would be that Rus and all her descendants were prohibited to marry born Jews.

Amasa, however, explains the Brisker Rav, knew that the principle of Moavi velo Moavis, that female descendants of Moav could marry into Klal Yisroel, was a mesorah that Shmuel knew originated at Har Sinai. Thus, its basis was not a logical interpretation of the Torah, which can be refuted, but mesorah, which cannot. Therefore, a logical interpretation concluding otherwise is completely irrelevant.

At this point, we can return to an earlier question we asked about the story of Megillas Rus. Ploni Almoni, Machlon’s uncle, seems convinced that he may marry Rus, notwithstanding her Moavite origins, yet he is concerned that his descendants from her might not be allowed to marry other Jews. The Brisker Rav explains that Ploni Almoni assumed that the law permitting Moavite women to marry Jews was based on logic, which might at some time in the future be refuted, thus changing the accepted halachah. At that point, the ability of his descendants to marry Jews would be overturned. However, Ploni Almoni was incorrect, since the halachah that Moavite women may marry Jews is mesorah, and therefore irrefutable. There will never be a question as to whether the descendants of Boaz and David may marry Jews, notwithstanding their Moavite origins.

Conclusion

Besides the halachic issues regarding the pedigree of David, which are of supreme importance to us, since they are the basis of the lineage of Mashiach, we learn a very important lesson from the marital availability of the Moavites. One of the three identifying characteristics of the Jewish people is being makir tov: we appreciate what others, and especially Hashem, have done for us and we express that appreciation. This mitzvah demonstrates how much concern we must have about developing the qualities that characterize the Jewish people.

Mezuzah on a Rental

Question #1: Tenancy

“We rented a new apartment but did not put up mezuzos immediately, figuring that we had thirty days to do so. Someone told me that Rav Moshe held that we should put up mezuzos immediately. Is that true?”

Question #2: Temporary Dwelling

“When we went to visit our children in Ramat Beit Shemesh for two weeks, they had borrowed for us  a brand-new apartment that the owners themselves had not yet  used. I was surprised to see mezuzos on the doors already. My son-in-law explained that he put up mezuzos in the entire apartment, so that we could use it. Was he required to do so? I thought that one is not required to have mezuzos unless one lives in a place for at least a month.”

Question #3: Mezuzah on a Rehab

“My mother unfortunately fell and broke her femur and will be staying for an extended period of time in a rehabilitation hospital. Are we required to make sure that there is a kosher mezuzah on the door of her room?”

Basic Information:

The Torah requires that a mezuzah be placed on the doorposts of “your” house, beisecha. What is the definition of beisecha? Does the mitzvah apply even when I live in a house that I do not own? Does it apply to a property I own, even if I do not live there? These questions are addressed by the Gemara and its major early commentaries.

The Gemara (Pesachim 4a; Bava Metzia 101b; Avodah Zarah 21a) teaches that the obligation to put up a mezuzah devolves upon the person living in a house, and not upon a non-resident owner. Thus, a Jew who rents his home from a gentile is obligated to have mezuzos on the doors (Rambam, Hilchos Mezuzah 5:11; Beis Yosef, end of Yoreh Deah 286; however, cf. Hagahos Maimonis 5:7 who quotes a disputing opinion), whereas a Jewish landlord who owns residential properties where he does not live is not obligated to place mezuzos there.

When one Jew rents his house or apartment to a second Jew, the requirement to place a mezuzah rests with the tenant.

The Gemara’s Statement

There is another Talmudic passage that expands upon the previously-quoted rulings:

“One who lives in an inn in Eretz Yisroel, or one who rents a house in chutz la’aretz, is exempt from the mitzvah of mezuzah for thirty days. [If he rents] for longer, he is required to put up a mezuzah. However, one who rents a house in Eretz Yisroel must put a mezuzah up immediately, because this assists in the settling of Eretz Yisroel” (Menachos 44a).

This passage of Gemara mentions three halachos:

1. Someone who lives in an inn, hotel, or other temporary residence is, in general, not obligated to put up a mezuzah. The Gemara states that someone who dwells in an inn in Eretz Yisroel for thirty days becomes obligated in mezuzah.

2. Someone who rents a house or apartment for thirty days or more must put up a mezuzah.

3. However, someone who rents or borrows a house or apartment in Eretz Yisroel must put up a mezuzah immediately.

More Details

In order to answer our opening questions, we will need to clarify each of these halachos in more detail. First we will explain the rules governing a tenant in chutz la’aretz, who is required to put up a mezuzah when he lives thirty days in a rented or borrowed residence.

The first question is: As we mentioned above, the Torah requires placing a mezuzah on beisecha, your house. If a rented residence qualifies as “your house,” then a tenant should be obligated to place a mezuzah there immediately, and if a rented residence does not qualify as “your house,” then the tenant should not be obligated in the mitzvah, even if he lives there longer.

What difference does thirty days make?

As we can imagine, we are not the first to raise this question. Tosafos (Menachos 44a s.v. Talis) asks this question and presents two very different answers.

I. The person dwelling in a residence is the one who requires the shemirah that the mezuzah provides. For this reason, the mezuzah is the tenant’s responsibility. However, someone living in a dwelling for less than thirty days is not yet considered to be a resident. According to this approach, the requirement to install a mezuzah on a rented dwelling in which one lives for thirty days is min haTorah.

II. The second approach understands that min haTorah a tenant is not required to have a mezuzah on his door, since the Torah’s word beisecha, your house, implies that only one who owns the residence is required to have a mezuzah. A tenant who lives in a residence for thirty days is required to have a mezuzah as a takkanas chachamim instituted by the Sages, because the house appears to be his.

Several later authorities conclude that the second approach, that a tenant’s obligation to put up a mezuzah is only miderabbanan, is the approach that we follow in practical halachah (Shu”t Rabbi Akiva Eiger, 1:66; Shu”t Avnei Nezer, Yoreh Deah, #380).

What if I Borrow?

The halachic authorities rule that just as someone who rents a residence for thirty days is obligated to have a mezuzah, so, too, someone who borrows a residence for thirty days or more without paying any rent is obligated to have a mezuzah (Rabbeinu Manoach, quoted by Beis Yosef, Yoreh Deah, end of 286).

Is the Requirement for a Mezuzah Immediate?

At this point, I want to address the first question we quoted above:

“We rented a new apartment but did not put up mezuzos immediately, figuring that we had thirty days to do so. Someone told me that Rav Moshe held that we should put up mezuzos immediately. Is that true?”

The question here is: If someone knows that he will be living in a house or apartment for more than thirty days, does he have no chiyuv until the thirtieth day, or does the fact that he will be living there for thirty days create an immediate chiyuv? This matter is disputed. Some authorities contend that someone who intends to rent or borrow a home or apartment for more than thirty days becomes obligated in mezuzah immediately (Derech HaChayim; Shu”t Harei Besamim 2:219, quoted by Shu”t Minchas Yitzchak 2:82). This approach is implied by Rashi (Menachos 44a), who writes that a tenant is not obligated in mezuzah for thirty days because he might back out of the rental, thus implying that if he is already committed to renting it for more than thirty days, he is required to put up a mezuzah immediately.

Some derive support for this position from the halachah that someone who moves into a community is not obligated in local taxes until he lives there for thirty days. However, someone who demonstrates intention to live in the community for thirty days or more becomes obligated to pay taxes immediately. Thus, we see that intention to live somewhere for thirty days may determine permanent dwelling status.

However, other authorities contend that a tenant’s obligation to put up a mezuzah is because it looks as if he is living there permanently, and this does not happen until he is actually there for thirty days. They contend that even someone who signed a multi-year lease is not obligated to put up a mezuzah until he lives in the rental home for thirty days (Nachalas Zvi to Yoreh Deah 286:22; Pischei Teshuvah, Yoreh Deah 286:18).

Although some later authorities prefer that a long-term tenant put up the mezuzah immediately in deference to the Derech HaChayim’s position (Shu”t Igros Moshe, Yoreh Deah 1:179), the more common practice is to follow the second approach, that of the Nachalas Zvi, that one is not obligated to put up the mezuzah immediately upon moving in.

When should I actually put it up?

Assuming that a tenant is not required to do so until thirty days have passed, may he put up the mezuzah earlier and already recite a brocha, or should he wait until the thirtieth day? The question is: since the Nachalas Zvi rules that a tenant is not obligated to put up a mezuzah until he is living there for thirty days, perhaps one cannot recite a brocha upon installing the mezuzah until one is obligated to do so.

We find a dispute in this matter. The Nachalas Zvi and the Halachos Ketanos (quoted by Birkei Yosef, Yoreh Deah 286:7) conclude that, although it may be a bigger mitzvah to wait until the thirtieth day, so that one performs the mitzvah at a time when one is required to do so, one may put up the mezuzah any time during the thirty day period with a brocha. Others rule that one should not recite a brocha until the thirtieth day (Toras Chesed quoted by Birkei Yosef, Yoreh Deah 286:7; and others quoted by Chovas Hadar, page 29, ftn. 8).

Thus, we have three approaches as to what to do:

1. Put up the mezuzah immediately.

2. Put up the mezuzah any time during the thirty days.

3. Put up the mezuzah specifically on the thirtieth day.

I advise each individual to ask his or her own posek which approach to follow.

Temporary Dwelling in Eretz Yisroel

At this point, let us discuss the third point made by the Gemara I quoted above – that someone who rents or borrows a house or apartment in Eretz Yisroel must put up a mezuzah immediately.

How does putting up a mezuzah assist the settling of Eretz Yisroel?

To explain this idea, we need to discuss a different law. The halachah is that, when vacating a residence, one is usually required to leave the mezuzos in place. To quote the Gemara: “When a Jew rents a house to a fellow Jew, the tenant is responsible to affix the mezuzos. However, when the tenant vacates, he may not remove them. On the other hand, a Jew who rents a residence from a gentile removes the mezuzos when he leaves” (Bava Metzia 102a).

Based on this halachah, Rashi (Menachos 44a) explains why Chazal required someone renting in Eretz Yisroel to put up a mezuzah immediately. Since the tenant may not take the mezuzos with him, he will be reticent to move. And even if he does move, since the mezuzos are left behind, a different Jew will be eager to rent it, since he spares himself the expense of purchasing mezuzos. Either way, the dwelling will remain with a Jewish resident, which accomplishes that “this assists in the settling of Eretz Yisroel.”

Borrowing in Eretz Yisroel

We can now discuss the question I raised at the beginning of our article:

“When we went to visit our children in Ramat Beit Shemesh for two weeks, they had borrowed for us a brand-new apartment that the owners themselves had not yet used. I was surprised to see mezuzos on the doors already. My son-in-law explained that he put up mezuzos in the entire apartment, so that we could use it. Was he required to do so? I thought that one is not required to have mezuzos, unless one lives in a place for at least a month.”

As I mentioned above, the Gemara rules that someone who rents a house in Eretz Yisroel must put a mezuzah up immediately, because this assists in the settling of Eretz Yisroel. And, since borrowing a house is the same as renting it (Rama 286:22), a person who borrows someone’s house for just one night is required to install mezuzos on the entire house.

The “Inn” Thing

As I mentioned above, someone who lives in an inn, hotel, or other temporary residence is, in general, not obligated to put up a mezuzah. Since it is assumed that an inn is not a place in which one lives permanently, it is not considered a “dwelling” (Shach, Yoreh Deah 286:28). Rashi (Menachos 32b s.v. Hayu) implies that someone living temporarily in a residence that is clearly not intended to be permanent is not required to have a mezuzah, even if he owns the “residence.”

Thus, we see that if one is in a hotel in Eretz Yisroel, he or she is not required to have a mezuzah, and therefore certainly not required to ascertain if the mezuzos on the hotel room door are kosher.

Inn Chutz La’aretz

However, the Gemara states that someone who dwells in an inn in Eretz Yisroel for thirty days becomes obligated in mezuzah. What about someone whose permanent residence is in chutz la’aretz and in an inn? Is he obligated to put up a mezuzah?

Most authorities explain that someone who lives permanently in an inn in chutz la’aretz is not obligated to put up a mezuzah, because this is not considered having a house (see Chovas Hadar, page 31, footnote 16). Only in Eretz Yisroel did Chazal require one to put up a mezuzah if he lives permanently in a place that is usually meant for temporary dwelling. (Perhaps this explains why so many people in Eretz Yisroel live permanently in temporary housing, such as caravans and caravillas.)

However, the Aruch HaShulchan (Yoreh Deah 286:48) implies that someone living in an inn in chutz la’aretz for more than thirty days is required to put up a mezuzah, and I believe that this is the more common practice.

What about a Hut?

Later authorities discuss whether someone who lives in a hut or similar accommodation for longer than thirty days must put up a mezuzah. The Sdei Chemed concludes that if someone moves for more than thirty days into a hut, bungalow or similar accommodation, he is obligated in mezuzah, whereas someone living in a hut as a refugee is not obligated to put up a mezuzah (Volume 4 page 245). Others rule that one should put up a mezuzah without a brocha, even if he is a refugee (Chazon Nachum, quoted by Birkei Yosef, Yoreh Deah 286:9)

What about a Mobile Home?

The Minchas Yitzchak (2: 82) discusses whether someone who lives permanently in a mobile home is required to put up a mezuzah, concluding that he is required to do so; however the Minchas Yitzchak is uncertain whether he should recite a brocha when he puts it up.

A Boarding House

The Aruch HaShulchan (Yoreh Deah 286:46) rules that although someone staying temporarily in an inn is exempt from the mitzvah of mezuzah, this is true only when the room or the inn is not a part of someone’s house. However, a Jewish person who takes in boarders into his house is required to have mezuzos on all the doors. This is not a requirement because of the tenants, but because of the owner – having boarders is considered a residential use of his own property that requires him to have a mezuzah, just as all other rooms in his house must have one.

A similar situation would exist if someone has gentile help living in his house, or if he rents out rooms in his house to gentiles. Even though a gentile has no obligation to put up a mezuzah, since this is a room in his house, he is required to put up a mezuzah.

A Guest House

Chovas HaDor (page 20, ftn 1) explains that the Aruch HaShulchan includes the obligation for mezuzah only when the guest rooms are in the owner’s house. However, if a separate structure is used as a guesthouse, the owner has no responsibility to place mezuzos there.

If the gentile employees live in a separate building on one’s property, and the owner does not use that property for his own domestic needs, then there is no requirement to put a mezuzah on the gentiles’ residences (Chovas HaDor page 20, ftn 1).

In a Rehab Center

At this point, we should discuss the unfortunate third case mentioned above:

“My mother, unfortunately, fell and broke her femur and will be staying for an extended period of time in a rehabilitation hospital. Are we required to make sure that there is a kosher mezuzah on the door of her room?”

This question is discussed by one of the great Nineteenth Century halachic authorities, the Avnei Nezer. He concludes that someone hospitalized for an extensive period of time is not required to place a mezuzah on a hospital room for two reasons:

Even according to those opinions that a long-term tenant is obligated min haTorah to put up a mezuzah, the Avnei Nezer notes that this is true only when he rents a specific room, apartment or house. However, a patient in a hospital or rehab program is entitled to a bed only somewhere in the facility, and the hospital may move him to a different room without obtaining his agreement. Thus, he certainly has no ownership that requires him to have a mezuzah on the door.

In addition, if a tenant’s obligation to put up a mezuzah is a rabbinic requirement, it is because his use of the property it similar to that of an owner. Someone “dwelling” in a hospital can never be viewed as an owner or as having ownership. Therefore, the Avnei Nezer concludes that a patient in a hospital has no requirement to have a mezuzah on the door. (See also Shu”t Chayim Sha’al #22, who reaches the same conclusion.)

Mezuzah Rewards

Aside from fulfilling a mitzvah commanded by Hashem, the mitzvah of mezuzah serves to remind us constantly of His Presence, every time we enter and exit our houses. In addition, the Gemara teaches that someone who is meticulous in his observance of the laws of mezuzah will merit acquiring a nice home (Shabbos 23b). We thus see that care in observing this mitzvah not only protects one’s family against any calamity, but also rewards one with a beautiful domicile. May we all merit being careful, always, in our observance of the laws of mezuzah and the other mitzvos, and reaping all the rewards, both material and spiritual, for doing so!

image_print