More on Shatnez Laws

clip_image002In parshas Emor, we study about the unique role that the kohanim represented in Klal Yisrael. One of the unusual aspects of this role is that they wore the bigdei kehunah, which contained shatnez. Thus, that which otherwise would be prohibited, in this instance became a mitzvah. This provides an opportunity to continue our discussion of last week about the laws of shatnez, and yet still discuss a halachic theme related to the parsha.

Question #1:

Does wool felt sewn to linen present a shatnez concern?

Question #2:

What are reprocessed fibers, and do they present a shatnez problem?

Question #3:

Does a “sheepskin” blanket present a potential shatnez concern?

In the previous article, we discovered that the prohibition of shatnez exists only if the garment is made from a blend of sheep’s wool and linen, but that wool of other species, such as camel, llama, rabbit, or goat is not shatnez .Thus, a garment made of a blend of linen and either mohair or cashmere is not shatnez, since neither mohair nor cashmere are made from sheep’s wool, but from the hair of goats!

At this point, I want to mention an e-mail I received in response:

“You mentioned in the shatnez article that linen and non sheep wool such as cashmere or mohair are not an issue.
“I would strongly qualify that such a statement is true halachically but is not accurate in today’s textile world!! Sheep wool is much cheaper than cashmere and mohair and companies almost always blend them together. For advertising purposes, they often write ALL CASHMERE or ALL MOHAIR in big letters, but write “with wool” (in small letters) to fool consumers — but it is usually mostly sheep wool and is shatnez!
“Even if it would be a 100% cashmere coat, (which, by the way, costs over $2000) it still needs checking because labels never include the ingredients of internal components which could be both wool and/or linen that are not botul!!
“The consensus among the rabbonim in the vaad shatnez both here and in chutz L’aaretz is to tell  people that cashmere, mohair, alpaca (camel) and angora (rabbit or goat) wool does require checking as this advice prevents mistakes.

“Kol Tuv!”

Rav Yaakov Gurwitz
“Mishmeret Nosson” Shatnez Laboratories
Yerushalayim
rygur38@hotmail.com

Tel: 0526-334417

I now return to our article:

Another fact that we learned is that when a thread is spun from a mix of fibers, the halachic status is determined by what composes most of the fiber content, and ignores the existence of other fibers inside the thread. The minority is halachically bateil, or nullified, to the majority fiber content in the thread. Thus, threads spun from a mix of mostly cotton fiber with some linen fiber are considered cotton, and can be used lichatchilah in a woolen garment. Similarly, a garment consisting of threads made of a blend of mohair that is spun with some sheep’s wool fiber, which is woven or sewn with linen threads, is not shatnez. However, a thread of linen that is woven or otherwise attached into a woolen garment renders the garment shatnez, and there is no bitul and vice versa, a single sheep’s wool thread in a linen garment renders the entire garment shatnez.

And now for some new “material”:

A thread is made of fiber that is combed and then spun. However, not all material is made this way. For example, wool felt, a material often used in shoulderpads, underarm material, the neck backing of suits, and other places that require sturdiness or strengthening, is made of combed wool that is pressed, but not spun into thread. Is there any difference in regard to the laws of shatnez between spun wool thread and pressed wool felt?

Many authorities contend that the Torah-level prohibition of shatnez applies only to spun threads, but not to fiber or material that was never spun (Tosafos, Niddah 61b s.v. Shu’a). Following this approach, wool felt sewn with linen thread is shatnez only miderabbanan (on a Rabbinic level).

The Shach (300:1) concludes that this approach is accepted by most authorities, and that, furthermore, this is prohibited only in the instance of soft material. Thus, he concludes that stiff material made of wool felt combined with linen is not shatnez, even miderabbanan.

According to the Shach, then, a non-wool suit with shoulderpads made of wool felt sewn with linen thread is shatnez, but only miderabbanan. One would still need to replace the linen thread, the shoulderpad, or both to remove the shatnez from the garment.

Another application of this halachah: An ornament on a garment that should be shatnez-free was attached to a linen fabric that was in turn attached to a wool felt backing. The ornament itself is shatnez, albeit according to the Shach only miderabbanan. The ornament can be removed or replaced and thereby make the garment shatnez-free.

Another interesting case in which a garment may contain tufts of wool and linen threads and not be shatnez is if one takes a sheepskin (occasionally used as a very warm blanket) containing sheep’s hair, which is raw wool, and sews it with linen thread. It does not present a Torah-level prohibition of shatnez, because the wool has not been processed to the necessary stage to pose a problem.

Reprocessed Fibers

Many garments, particularly quilts and other bedding, contain “reprocessed fibers,” which is a nice way of saying that used clothes (also known as shmattes) were chopped up and used as stuffing. One can never know for certain what material is included in the reprocessed fibers. Are they automatically prohibited because of shatnez?

This actually depends on two factors:

Are the “reprocessed fibers” actual threads?

Are they sewn or glued into the garment or simply pressed together and inserted.

If the reprocessed fibers are threads and are sewn or glued into the material, the entire garment may be shatnez, at least according to the Rambam, because the “reprocessed” material includes threads of wool and threads of linen that have both been sewn into the same garment. If there are linen and woolen threads sewn together at any point, it is shatnez according to all opinions. If the wool and linen does not touch, but are in different parts of the garment, then the garment is shatnez according to the Rambam, but not according to the Rash. Rav Chayim Kaniyevski quotes in the name of the Chazon Ish that one could permit this clothing on the basis of a sefek sefeika: It is possibile that this garment does not contain both wool and linen, and even if it does contain both, the stitching may not have attached the wool to linen, in which case it is permitted according to most authorities (Derech Emunah, Hilchos Kilayim, 10:2 Biurei Halacha s.v. Levadim). Although he concludes that a G-d-fearing person should avoid use of this heter, he concludes that one may use a mattress stuffed with reprocessed fiber, since lying on shatnez is permitted min haTorah, and is prohibited miderabbanan only on soft items. The same rationale permits using baseball gloves, which are also usually stuffed with reprocessed fibers, since the rawhide surface of a baseball glove does not provide any warmth to the hand. Therefore, even yarei shamayim baseball players may continue to use their gloves.

We will continue our discussion on Shatnez in a future article.

Some Shatnez Basics

clip_image002Question #1:

I keep reading about shatnez showing up in strange places: ladies sweaters, children’s clothes, and even baseball gloves. Am I required to take my family’s entire wardrobe to a shatnez laboratory to have everything checked?

Question #2:

“What does a shatnez tester look for?”

Question #3:

“The importer told me that the garment was made from a blend of hemp and wool, which should involve no shatnez concern. As there was no authorized shatnez tester in town, I did what I thought was the next-best thing – I brought the garment to a local observant tailor, to have him check it. He carefully checked the threads and guaranteed me that the garment contained no linen. Only after I wore the garment many times did I meet a great Torah scholar and mention this incident in passing. The talmid chacham told me that I should not be so certain, and he offered to compare the material in my garment to linen threads he had available. And indeed, it was clear that he was correct. The threads in my garment were made from wool and linen, not hemp, and I had been violating a Torah prohibition the entire time!”

Does this story sound contemporary and familiar? As a matter of fact, this story happened in 1650 in the city of Vilna — twenty years before the Dutchman van Leeuwenhoek invented the microscope. In those days, the only “scientific” means of checking whether a material was linen or hemp was to take a sample and see if a candle would get it to burn, since hemp is more flammable than linen (Rama, Yoreh Deah 302:2). Others opposed the reliability of this test (Piskei Teshuvah 302:1, quoting Shu”t Penei Yehoshua).

Thus, we see that shatnez problems are not exclusively a result of modern manufacture. However, in modern clothing one may find shatnez in everything from sweaters and skirts to scarves; and from bedding and button loops to baseball gloves.

Before delving into contemporary questions, we must first understand some of the laws taught in this week’s parsha. The prohibition of shatnez exists only if the garment is made from a blend of sheep’s wool and linen, but that wool of other species does not make shatnez. Thus, wool made of camel’s, rabbit’s or goat’s hair mixed with linen is not shatnez (Mishnah, Kilayim 9:1; see Rambam, Hilchos Kilayim 10:2). (“Wool” is simply hair that is soft and can be used as cloth.) The Mishnah (Kilayim 9:2) records that certain combinations, such as silk and wool, were prohibited because of maris ayin, since this raises suspicion or may be misinterpreted that someone is wearing shatnez. However, the Rishonim already conclude that this concern exists only when the material that may be confused with wool or linen is not commonly obtainable, but that no prohibition of maris ayin exists once people become familiar with its availability (Rosh, Hilchos Kilayim).

Most people are surprised to discover that a garment made of a blend of linen and either mohair or cashmere is not shatnez! Why is this? Because neither mohair nor cashmere are made from sheep’s wool, but from the hair of goats! Mohair is processed from the hair of an angora goat. Although goats of this variety are now raised around the world, originally they were developed in Turkey. (The current capital of Turkey, Ankara, used to be called Angora.)

Cashmere is the wool of the Kashmir goat, which was originally native to central Asia, as its name indicates. Thus, if no sheep’s wool thread was mixed into the mohair or the cashmere, the existence of linen in the garment will not make it shatnez.

The Majority Rules

By the way, a garment could contain both linen and sheep’s wool and still not be shatnez! How could this be?

When a thread is spun from a mix of fibers, the halachic status of the thread is determined by what composes most of the thread’s fiber content and ignores the existence of other fibers inside the thread (Mishnah Kilayim 9:1). The minority of fiber is halachically bateil, or nullified, to the majority fiber content in the thread. Thus, threads spun from a mix of mostly cotton fiber with some linen fiber are considered cotton and can be used lichatchilah in a woolen garment. Similarly, a garment consisting of threads made of a blend of mostly mohair but including some sheep’s wool fiber that are woven or sewn with linen threads is not shatnez and may be worn.

Here is a very practical example of this case – in a dress that was tested recently in a shatnez laboratory.

A knit dress whose content label listed 70% wool and 30% silk, which should not be a shatnez problem, was brought to a shatnez checking service. However, the tester noticed that the front panel of the dress was made of thread that was a blend of linen and cotton fibers. If the cotton is the majority, there is no halachic problem with this garment, since this would be considered a cotton thread. However, if the majority component of the threads is linen, the garment is shatnez.

Here is another recent case where the halacha is more complicated:

The label of a sweater brought to a shatnez checking service accurately described its content as: 28% viscose, 20% nylon, 15% lamb’s wool, 15% cotton, 10% polyester, 6% metallic fiber, 3% cashmere and 3% angora. A decorative cloth ornament, whose content was not included on the label, was sewn onto the sweater. The shatnez checker tested the ornament and discovered that it was made of a blend of linen and cotton, where linen was the majority. Thus, the decorative fabric was halachically considered linen, and the material of the main sweater included wool. However, it is possible that there is no shatnez problem here because the wool in the sweater fabric was a minority component. Thus, although there was both linen thread and wool fiber in the garment, it would not be shatnez.

Why did I say only that “it is possible that there is no shatnez problem?”

The authorities dispute whether shatnez exists when there is noticeable wool fiber in a thread which is mostly made from a different fiber. The Rosh (Shu”t 2:5), Mishnah Rishonah and Tiferes Yisrael (both to Kilayim 9:1) consider this shatnez, since the wool is noticeable; whereas the Chazon Ish (Yoreh Deah 181:9) rules that this is not shatnez, contending that the definition of a thread is its majority component, and that the minority wool component of the thread is bateil. In the case at hand, the wool may be noticeable in the thread, since there is a sizable amount of lamb’s wool in a blend that contains many very non-wool type fibers. It may indeed be that according to the Rosh the wool is not bateil in this case, and that this sweater is therefore shatnez. On the other hand, according to the Chazon Ish, since most of the fiber in the thread is not wool, the wool component of the thread is bateil.

Hanging by a Thread

Linen or wool fiber is bateil only as fiber. However, a thread of linen that is woven or otherwise attached into a woolen garment renders the garment shatnez, and there is no bitul (Rosh, Hilchos Kilaei Begadim #5 quoting Tosefta; Shulchan Aruch, Yoreh Deah 299:1). Even a single linen thread in a large woolen garment renders the entire garment shatnez. In addition, if a spun thread is mixed into a larger thread, then there is a shatnez problem min haTorah even if there is only one linen thread in a large garment.

This distinction is extremely important, as we see from the following case:

A 100% pure wool sweater contained a long green thread knotted into its seam. The green thread consisted of a cotton braid, which was not mentioned on the label, but should not present any problem either. However, the core of the cotton braid contained a linen thread. Thus, the 100% pure wool sweater contained a linen thread. (We will soon see that according to many authorities this particular sweater was not shatnez for a different reason.)

What if they do not touch?

If a garment contains wool thread on one side and linen in a different place — so that the wool and linen do not touch, is the garment shatnez?

This issue is disputed by the Rishonim. The Rash (Kilayim 9:1, 9) one of the early Baalei Tosafos, (this is Rabbeinu Shimshon, author of the Tosafos commentary to Zera’im, Taharos, Pesachim and Kesubos, and should not be confused with the more frequently quoted Rosh, Rabbeinu Asher, who also authored commentaries on the Mishnah, Gemara and Halacha, and lived somewhat later than the Rash), rules that shatnez requires that the linen and the wool actually touch, but that one is permitted to wear a garment containing wool and linen threads that are on different parts of the garment. According to the Rash, the prohibition of shatnez is that there is a “combination” of wool and linen, but this is avoided when the wool and linen are separated by other materials.

Based on this Rash, a common custom was to attach a linen atarah to a wool talis by having cotton cloth act as the “mechitzah” between the wool and the linen.

However, the Rambam rules that wool and linen threads on different parts of a garment constitutes shatnez min haTorah. In his opinion, the Torah prohibited a garment containing both wool and linen, even if the linen and wool themselves do not touch. Thus, according to the Rambam, the separating cotton does not change the garment from being shatnez, and wearing the above-mentioned talis is a mitzvah habaah be’aveirah.

Similarly, whether the wool sweater with the cotton green thread containing a core that is a linen thread is shatnez or not is dependent on this dispute between the Rash and the Rambam, since the linen thread does not touch the wool but is surrounded by cotton. According to the Rambam, wearing this sweater involves a Torah prohibition of shatnez, whereas according to the Rash, it is permitted!

How do we rule?

The Shulchan Aruch (Yoreh Deah 299:2) rules like the Rambam that a garment is shatnez even if the wool and the linen threads are separated by other materials. Thus, Sefardim, who follow the Shulchan Aruch’s rulings, are certainly prohibited from wearing this sweater. Among Ashkenazi authorities, the Rosh, the Rama  (Yoreh Deah 299:2), the Magen Avraham (9:8) and the Eliyah Rabbah (Orach Chayim 9:6) rule like the Rash, whereas the Mishkenos Yaakov (Yoreh Deah Shu”t #70) Shenos Eliyahu (9:1)[1], Artzos Hachayim rule like the Rambam. I note that Rav Chayim Kanievski notes that the prevalent practice is to rule like the lenient opinion (Derech Emunah, Hilchos Kilayim, Hilchos Kilayim 10:41).

What have we learned so far?

1. We have learned that shatnez exists only when there is sheep’s wool, but not when the wool is from other species, and that therefore pure cashmere or mohair blended with linen is not a shatnez concern.

2. We have also learned that some testing for shatnez existed even before the microscope, but there was halachic controversy concerning whether one could rely that this testing is reliable.

3. In addition, we have learned that threads spun from a mix of cotton and linen fibers are considered cotton and when blended in a woolen garment are not shatnez. However, threads of linen woven into a garment that is a cotton/wool blend is shatnez, even when the blend is mostly cotton thread.

What have we not yet learned?

1. Are baseball gloves a shatnez problem?

2. Which garments must be checked for shatnez.

3. How a shatnez tester works.

To answer these and other shatnez questions, we will need to read a future article.


[1] We should note that in his notes to Shulchan Aruch (299:8), the Gra, who also authored Shenos Eliyahu, appears to accept the Rash‘s approach.

Observing a Colorful Lifestyle

clip_image002This week’s parsha describes how master artisans used three dyes, techeiles, argaman, and tola’as shani, in the manufacture of the Kohen Gadol’s vestments. These colors were also used to produce the curtains and coverings of the Mishkan, and the halachic conclusion is that these dyes are also used for dyeing the kohen hedyot’s belt (see Rambam, Hil. Klei HaMikdash 8:1, 11, 13, based on Yoma 6a, 12a). In addition, processing the ashes of the parah adumah (Bamidbar 19:6), purifying a metzora and decontaminating a house that became tamei all use tola’as shani (Vayikra 14:4, 49). As we will discover, correctly identifying the tola’as shani not only affects these halachos and those of the Beis HaMikdash, but also concerns a wide assortment of foods and beverages that we eat and drink.

At one point in my life, when I worked as a "rabbinic field representative" (aka  a mashgiach), I once made a surprise inspection of a company that produced juice drinks – let’s call it Generic Juices Inc. I was surprised to discover that the plant was bottling beverages containing carmine red coloring, and other drinks colored with enocianina, a coloring derived from grape skins. Neither of these products was on the lists of approved ingredients, and for good reason. Of course, this created a serious problem for the hechsher, the company, and most of all, the unsuspecting consumer.

Whether we like it or not, many of our foods are colored with a host of coloring agents; some derived from food items, such as beets, berries, sugar (caramel coloring), turmeric and annatto; whereas others are derived from inedible materials such as coal or petroleum, whose sources most consumers would prefer to ignore. Although processing colorants can compromise the kashrus of the finished product, few food colors are themselves obtained from non-kosher materials. However, two common food pigments originate from non-kosher substances: One is carmine red, also called cochineal, which is a very common color used to color fruits, yogurts, juice drinks, maraschino cherries etc., and the other is enocianina, colloquially often called simply eno, a red or purple color similarly commonly used in beverages, fruit fillings and confections. The origin of carmine is from a scale insect — I discussed the kashrus ramifications in an article that I sent out on Parshas Va’eira Suffice it to say that almost all kashrus organizations treat carmine color as non-kosher.

ENO – A GRAPE SKIN EXTRACT

After the juice has been squeezed out of the grapes, the remaining skin pulp is processed into a commercial coloring agent called enocianina. Although one could produce kosher eno from kosher-processed grape skins, grape skin color available today is almost always produced after the grapes have become non-kosher and thus we usually assume that eno is not kosher. However, the prohibition here is only the rabbinic prohibition of stam yeinam, grape juice and wine product handled by a gentile.

GENERIC JUICE DRINKS

Unfortunately, Generic Juices had already produced and shipped tons of product using either carmine or eno – and all of it bearing the kosher certification symbol on the label! Is the kashrus agency halachically required to insist on a recall of the product from the supermarket shelves?

RECALL

Companies hate having their products recalled, both for technical reasons, the major expense involved, and because it is a public relations nightmare. The policy of this particular hechsher was not to require the company to recall the product unless the product could not be used even after the fact, bedei’evid. However, if the product would be kosher be’dei’evid because of bitul, the hechsher would not require that the product be recalled. It was now the responsibility of the hechsher’s poskim to decide whether the product is prohibited or permitted after the fact.

Why should the finished product be kosher if the colorant added was not?

The basis for this question follows:

Coloring agents are used in very minute amounts. Indeed, when the Spaniards discovered carmine red, they sold the concentrated powdered pigment at a higher price per ounce than gold! Thus, the amount of coloring used to color a juice drink or maraschino cherry is significantly less than the amount that we usually say is bateil (nullified) in a finished product. Although one may never add treif product to a food and rely that it will become bateil, if non-kosher product was inadvertently added in minute quantities the finished product is usually permitted.

The primary criterion to determine whether the treif food is bateil is:

Can the non-kosher product be tasted, either because of its quantity or because it is a flavoring agent?

This test is passed with flying colors! None of these colors can be tasted in the finished product.

However, there is another criterion:

Is the treif product noticeable?

If one can see a treif ingredient floating inside a food, one may not consume the food without first removing the non-kosher item.

COLORS ARE NOTICEABLE

The boldness of a color announces its existence. Can we say that a color is bateil when we clearly see evidence of its existence?

Several great halachic authorities discuss this question, reaching widely different conclusions. Some prohibit consumption of the resultant product precisely because one can notice its existence (Pri Megadim, Mishbetzos Zahav 100:1; Minchas Kohen, Sefer HaTaaroves 3:3, quoted by Darkei Teshuvah 102:30). They contend that bitul can only happen when the offending item leaves no trace. A colorant is by definition very noticeable and therefore not bateil. According to this approach, all of the juice drinks mentioned must be recalled since the non-kosher ingredient is very noticeable.

On the other hand, the Vilna Gaon argues that determining whether the food is kosher depends on whether one can taste the treif ingredient (Yoreh Deah 102:6). In our instance, although the color is noticeable, no one tastes the colorant, and therefore the finished product is permitted, assuming that the admixture was made in error. An earlier authority, the Minchas Yaakov (74:5), also espouses this position.

A COMPROMISE POSITION – IN WHOLE CLOTH

Some authorities concluded a position between these two positions, comparing our question to a Gemara that discusses whether someone who stole dye and cloth and now returns the dyed fabric fulfills his mitzvah of returning what he stole. The Gemara rules that this depends on whether the dye is considered to still exist after it has been used because its color is still noticeable (Bava Kamma 101a). Is the color on the cloth treated as if the dye itself still exists, or did the dye become bateil and no longer exists?

The particular issue in that Gemara remains unresolved, and therefore halachically is considered an unresolved doubt, a safek (Shu”t HaRan #70). Based on this discussion, several prominent authorities contend that a colorant that may involve a Torah prohibition is prohibited, because of the principle of safek de’oraysa lechumra, we rule stringently in a question involving an unresolved Torah issue; whereas one that involves only a rabbinic prohibition is permitted because of safek derabbanan lekula, we are lenient regarding an unresolved question involving only a rabbinic prohibition (Pri Chodosh, Yoreh Deah 102:5; Chasam Sofer, quoted by Darkei Teshuvah 102:30).

CONCLUSION

By this time, I presume most readers want to know what the hechsher did. The deciding posek ruled like the last position mentioned, and contended that the carmine coloring might be prohibited min haTorah and therefore the company must recall the beverages containing carmine. Since the grape skin extract only involves a rabbinic prohibition, he did not require the company to recall this product, contending that according to most authorities this product may be drunk since the eno is nullified in the final mix.

We should always pray that the food we eat fulfills all the halachos that the Torah commands without resorting to any controversial shaylos.

Who should I Choose as Sandek?

clip_image002Since both last week’s parsha, and this week’s (V’Yera) discuss the mitzvah of bris milah,  I thought we would discuss who one honors as sandek at a Bris.

Question #1:

Aharon calls: “I would prefer asking my Rosh Yeshivah to be sandek, but I know that my father is expecting the honor. What should I do?”

Question #2:

As I arrive for the bris, the two new grandfathers approach me: “We would like to ask a psak halachah: Which one of us should be the sandek?”

Question #3:

“I would like to ask my father to be the sandek, but my wife feels that her grandfather should be honored.”

Question #4:

“At a Sefardic bris I noticed that the sandek remained sitting even after the bris itself, and the baby remained on his lap through the naming ceremony. Afterwards, the sandek remained seated, and the attendees lined up to seek his blessing. Why were they doing this?”

Answer:

The greatest of the honors given at a bris is holding the baby during the bris itself; the person who does this is called the sandek (Maharil). Many authorities rule that the sandek receives greater honors than either the mohel or the father of the newborn, ruling that he has preference over them for an aliyah on the day of the bris (Rama, Yoreh Deah 265:11; Magen Avraham 282:18; cf., however, Shaarei Efrayim 2:12, who notes that this depends on local custom, and in his locale they did not give aliyos to the sandek or the mohel.)

Why the Sandek?

Why should the sandek deserve the highest honor? After all, if we honor him because he is performing a big mitzvah, then the honor should go to the mohel who is performing a far greater mitzvah – the bris itself. On the other hand, if it bestowed because it is a personal celebration, then it should go to the father of the baby.

The halachic authorities explain that since performing a bris milah is considered like the offering of a korban (Zohar, Parshas Lech Lecha), the sandek’s lap functions as the mizbei’ach, the altar, on which this korban is offered (Maharil; Toras Chayim, Sanhedrin 89b). The Maharil compares the sandek’s role to that of the kohen offering the ketores, the incense, in the Beis Hamikdash, explaining that for this reason the sandek is granted top honors. However, others note that this analysis is unclear, since it is the mohel who “offers” the korban by performing the mitzvah, and therefore he should be more closely compared to the kohen offering the ketores, not the sandek who is functioning as the mizbei’ach” [Shu”t Noda BeYehudah, Yoreh Deah 1:86]. We will discuss this point later.

Halachic sources mention that one should strive to perform the mitzvah of being sandek and even spend large sums of money to accomplish this (Migdal Oz, quoted in Sefer HaBris pg 313). These authorities suggest that it is for this precise reason that the sandek has preference for an aliyah – he receives honor for showing that he endears mitzvos so much that he is willing to spend much money to fulfill them.

We find many customs associated with being honored with sandek. In some places, the sandek paid for all the costs of the seudah, the festive meal served in honor of the bris. In other communities, there was a custom that the sandek paid for the first schar limud – the first Torah tuition of the child. The source for this second custom is the brachah given immediately following the bris, kesheim shenichnas labris kein yikaneis letorah ulechupah ulemaasim tovim, just as he entered the bris, he should enter studying Torah, marriage and good deeds. The sandek, who participated in the bris, thanks the parents for being honored by participating in the next step, the child’s growing in Torah.

Sandek Segulos

Some explain that being sandek is a segulah for wealth, although many dispute the existence of such a segulah, noting that many great talmidei chachamim were sandek numerous times yet remained poor as shul mice.

Another famous custom, mentioned by early authorities, is that a family should not honor the same person with sandek for a second time; which means that each of their sons requires a different sandek (Maharil; Rama). Although many authorities dispute whether one need follow this custom (Shu”t Noda BeYehudah), this practice is fairly common in Ashkenazic communities with one exception: That the local rav or rosh yeshivah is often presented this honor many times.

As a matter of fact, the honor of being sandek was considered so special that some communities had the custom that the father did not choose the sandek; instead, the community sold the right to the mitzvah and used the funds for charitable purposes (Otzar Habris 2: pg 255; see Derishah and Taz, Yoreh Deah 249:1 who discuss use of maaser kesafim to purchase the right to be the sandek). In other communities, they always gave the honor to the local rav (mentioned in Shu”t Noda BeYehudah, Yoreh Deah 1:86). However, in most locales, the father chooses this honoree. What factors should one consider when choosing the sandek?

The Greatest Tzadik

The Rama says that one should choose the biggest tzadikim that one can find to be the sandek and the mohel (Yoreh Deah 264:1). It is because of this Rama that many honor their rosh yeshiva, rav or a different talmid chacham with being sandek. Other sources require only that the sandek be a “good Jew,” meaning someone who observes the mitzvos properly, so that Eliyahu Hanavi will want to join him at the bris (Ohr Zarua; Rikanati #590, quoting a Medrash; Maharil). Although they certainly agree that it is preferable to choose a big tzadik, should one risk offending a family member?

We can now fully appreciate Aharon’s question: “I would prefer asking my Rosh Yeshivah to be sandek, but I know that my father is expecting the honor. What should I do?” Do we find halachic precedent with which to guide Aharon?

Family or Scholar?

I found halachah works that compared Aharon’s predicament to a question that was asked of one of the great authorities of the late 17th – early 18th Centuries, the Chacham Tzvi (Shu”t #69, 70).

A man, let us call him Yaakov, passed on, leaving an adult son from a previous marriage, and a young pregnant widow. Yaakov’s son had recently become a mohel, although he did not have much experience. For previous brissin, Yaakov had used a certain respected talmid chacham as the mohel, and when Yaakov took ill, he had appointed this talmid chacham to oversee the affairs of his children. When the widow gave birth to a boy, she wanted the experienced mohel, to whom she owed much gratitude and who was also a talmid chacham, to perform the bris, rather than the newborn’s older brother who was relatively inexperienced. One can certainly see the logic behind her position, and most of us would probably instinctively side with her opinion.

Nevertheless, the Chacham Tzvi rules that the older brother should perform the bris, because one should give a close relative the opportunity to perform a mitzvah even ahead of a talmid chacham.

Based on this ruling, I found authorities who rule that one should select a family member, provided of course that he is fully observant, for sandek ahead of a talmid chacham. This approach would of course guide Aharon to choose his father ahead of his Rosh Yeshiva, but I suggest that each individual discuss their specific question with their posek.

At this point, let us address the next question that I mentioned above:

Which Grandfather?

As I arrive for the bris, the two new grandfathers approach me: “We want to ask a shaylah: Which one of us should be the sandek?”

This situation actually happened once. Not wanting to ruffle anyone’s feathers, the baby’s father left it for the two grandfathers to decide. Fortunately, they were both easy-going and eager to do what is halachically preferred. I will explain the basis for my answer to them.

In most of our interpersonal relationships, we do not need to decide whom I am required to honor more than another person. However, the particular questions regarding which person to honor as sandek lead us to explore the following issue: Since one must choose only one sandek, whom is the new father required to honor more?

An Early Response

Fortunately, we already find this issue discussed by halachic authorities as early as the Fourteenth Century, in a work called Leket Yosher. There we find the following rulings:

“The father of a newborn boy who does not want to be the sandek himself out of desire to create peace and share honor with others, should give the honor to his own father, the baby’s paternal grandfather, ahead of the baby’s greatgrandfather, since the mitzvah of honoring one’s father is greater than that of honoring one’s grandfather. However, if the baby’s paternal grandfather prefers that his own father (the baby’s greatgrandfather) be honored, then it is fine to give the honor to the greatgrandfather, and that is the prevalent custom, based on an adage that one who is sandek for his greatgrandchild will never face gehenom.”

Being Sandek Yourself

We can derive a total of five interesting halachic points from this passage.

1. The father of the child can certainly choose to keep the honor of sandek for himself. The requirement to show honor to others does not preempt my right to fulfill the mitzvah myself should I choose to.

I will mention that, of the hundreds of brissin that I have attended over the years, I have seen the father act as sandek on only a few occasions. However, one highly regarded authority rules that if the father cannot perform the bris himself, which is his mitzvah, he should act as sandek, since the sandek assists the mohel in performing the bris (Shu”t Divrei Malkiel 4:86).

Although the halachic reasoning here is extremely solid, this practice is fairly uncommon, presumably for the exact reasons mentioned by Leket Yosher: the father would prefer to share the honors and the mitzvah with others, and he feels that more shalom is generated this way. Indeed, in both instances that I have seen the father be the sandek for his own child, it was not the first bris in the family, and the family members who might expect this honor had been honored as sandek at previous brissin.

2. A second point we see from the Leket Yosher, is that when determining who should be sandek, one should follow the usual rules governing whom one is required to honor. Thus, since the responsibility to honor one’s father is greater than honoring one’s grandfather, the father of the newborn should therefore honor his own father, the baby’s paternal grandfather, with being sandek. Although one is responsible to show honor to one’s grandfather, one has a greater responsibility to honor one’s own father (Rama, both in Yoreh Deah 240:24 and in his responsum #118).

3. The baby’s paternal grandfather may defer the honor to his own father, in order to accomplish his own mitzvah of kibud av, should he desire to. Leket Yosher reports that the common custom was indeed to do this.

4. The Leket Yosher mentions an additional reason to honor the greatgrandfather with being sandek. He cites an adage that being sandek for one’s greatgrandson protects the greatgrandfather from gehenom, although the Leket Yosher quotes no halachic source for this segulah other than that it was common for people to say so. Presumably, even if there is no halachic source for such an idea, the fact that people believe it to be so itself makes it a reason to honor the greatgrandfather.

5. The Leket Yosher makes no mention of honoring the maternal grandfather or the maternal greatgrandfathers. It seems that the reason for this omission is obvious:

Although one is required to honor one’s father-in-law, there is a greater responsibility to honor one’s own father. Thus, in the absence of paternal male antecedents, one should honor the mother’s father or grandfather. However, when the paternal grandfather is present, the responsibility of the baby’s father to honor his own father precedes his responsibility to honor his father-in-law.

At this point, I can present what I answered the two grandfathers. Since the right to provide the honor belongs to the father of the baby, he has greater responsibility to honor his father than he does to honor his father-in-law. Therefore, the paternal grandfather should be the sandek. Indeed, I found that in several places the prevalent custom was to honor the paternal grandfather with being sandek at the first bris, and the maternal grandfather at the second (Otzar Habris Volume 2, page 254).

His Father or Her Grandfather?

At this point, we can also address the third question I raised above:

“I would like my father to be the sandek, but my wife feels that her grandfather should be honored.”

As we see from the above discussion, the father of the baby has a greater responsibility to honor his father over his wife’s grandfather, even though Zeide is a generation older. But I note here that one should realize that each individual situation may have other factors involved, and that the most important factor is that we achieve maximum shalom. Again, one should consult with a rav for guidance.

Let us now examine the fourth question I mentioned above: “Someone attending a Sefardic bris noticed that the sandek remained sitting even after the bris itself, and the baby remained on his lap through the naming ceremony. Afterwards, the sandek remained on his seat, and the attendees lined up to seek his blessing. Why were they doing this?”

“Standing Sandek

Allow me to provide some background. After the mohel performs the bris itself, the baby, now bearing his eternal Jewish sign, is named. There are two widespread customs as to who holds the baby while he is being named.

The prevalent, although not exclusive, practice among Ashkenazim is that someone not previously honored at this bris is called forward to hold the baby while he is named. This honor is usually called either the sandek me’umad, literally, the standing sandek, or amidah lebrachos, the one who stands holding the baby while the blessings and prayers are recited.

The prevalent Sefardic approach is that the sandek remains sitting and continues holding the baby while he is named. In other words, there is one less kibud – the sandek who holds the baby during the actual bris holds the baby throughout the remainder of the ceremony. Although most are familiar with this as a Sefardic practice, many Ashkenazic sources mention it (Rabbi Akiva Eiger Comments to Shulchan Aruch Yoreh Deah 265:1, quoting Toras Chayim to Sanhedrin 89b). Indeed, I know several leading Ashkenazic gedolim who prefer this practice.

No “Standing Sandek

What is the basis for this practice?

To understand this practice, we need to present and explain a short piece of aggadic Gemara.

Pouring Wine

The Gemara teaches: Rabbi Berechyah said, “One who desires to pour wine libations on the mizbei’ach, should fill the throats of Torah scholars with wine” (Yoma 71a).

One could interpret this Gemara as meaning that supporting needy Torah scholars is considered as meritorious as offering wine on the mizbei’ach. However, there are several reasons why this interpretation of the Gemara does not explain it fully.

1. Why specifically refer to wine; people who need support require bread rather than wine?

2. The Gemara makes no reference to “needy Torah scholars,” but only to “Torah scholars,” implying that it is not extolling the concept of tzedakah, but some different idea.

3. Why does the Gemara use the seeming unflattering expression fill the throats, rather than a more polite description, such as: should provide them with wine, or give them wine to drink. Filling someone’s throat is not exactly a polite way of saying that one is providing wine.

To answer the above questions, the Toras Chayim explains this Gemara as referring to a very specific time that one is supplying the Torah scholar with wine. As I mentioned above, the Zohar refers to bris milah as offering a korban. If the bris itself is a korban, then the sandek, on whose knees the bris is performed, is a mizbei’ach, and having him drink wine can be compared to offering libations on the mizbei’ach. The Toras Chayim explains that this is called “filling his throat” since we are comparing the sandek drinking the wine to “filling” the top of the receptacles of the mizbei’ach where the kohen pours the wine libations.

Based on this analysis, the Toras Chayim concludes that the sandek should remain sitting with the baby on his lap until after the baby is named and the wine is drunk. He further contends that the cup of wine, or at least some of it, should be drunk by the sandek. As long as the baby remains on the sandek’s lap, he is still comparable to a mizbei’ach.

Based on this concept, Sefardim have a custom that the sandek holds the baby on his lap through the naming, and that the Sandek remains seated for several minutes after the bris. During this time people cluster around the sandek, requesting that he bless them for whatever blessing they would like. Since he has achieved the exalted status of being comparable to a mizbei’ach, he has the ability to bless others.

Conclusion

Although we have shown many ways to prioritize the honor of being sandek, we should note that an important factor in choosing a sandek is that he be someone that Eliyahu would want to join. We should bear in mind that Eliyahu is not only the malach habris, the angel who attends the bris, but also Pinchas, the bringer and angel of peace. Thus, we should remember that bringing peace to all the baalei simchah should be a highest priority in choosing the honorees.

The Torah’s Instructions to Non-Jews—The Laws of Bnei Noach

clip_image002[4]Although it may seem strange for a non-Jew to ask a rav a shaylah, it should actually be commonplace. After all, there are tens of thousands of times more non-Jews than Jews in the world, and each one of them should be concerned about his or her halachic responsibility. Many non-Jews are indeed concerned about their future place in Olam Habah and had the nations not been deceived by spurious religions, many thousands more would observe the mitzvos that they are commanded. It is tragic that they have been misled into false beliefs and practices.

An entire literature discusses the mitzvah responsibilities of non-Jews. Although it was Adam who was originally commanded to observe these mitzvos, they are usually referred to as the “Seven Mitzvos of the Bnei Noach,” since all of mankind is descended from Noach.

Furthermore, a Jew should be familiar with the halachos that apply to a non-Jew since it is forbidden to cause a non-Jew to transgress his mitzvos. This is included under the Torah’s violation of “lifnei iver lo sitein michshol,” “Do not place a stumbling block before a blind person.” In this case, this means do not cause someone to sin if he is blind about the seriousness of his violation (Gemara Avodah Zarah 6b).

In actuality, a non-Jew must observe more than seven mitzvos. The “Seven Mitzvos” are really categories; furthermore, there are additional mitzvos that apply, as we will explain.

THE BASICS

The seven cardinal prohibitions that apply to a non-Jew are:

1. AVODAH ZARAH.

It is forbidden for a non-Jew to worship idols in any way. Most religions of the world are idolatrous, particularly the major religions of the East.

Although Christianity constitutes idol worship for a Jew, there is a dispute whether it is idolatry for a ben Noach. Some poskim contend that its strange concepts of G-d do not violate the prohibition against Avodah Zarah that was commanded to Adam and Noach (Tosafos to Bechoros 2b s.v. shema; Rama, Orach Chayim 156). However, most later poskim contend that Christian belief does constitute Avodah Zarah even for a non-Jew (Shu”t Noda B’Yehudah, Tenina, Yoreh Deah #148; Chazon Ish, Likutim to Sanhedrin, 63b pg. 536). In this regard, there is a widespread misconception among Jews that only Catholicism is Avodah Zarah but not Protestantism. This is untrue. Every branch and type of Christianity includes idolatrous beliefs.

2. GILUY ARAYOS, which prohibits many illicit relationships.

3. MURDER, including abortion (Gemara Sanhedrin 57b), suicide, and mercy killing.

It should be noted that capital punishment, when halachically authorized, does not violate this mitzvah because the Torah requires it to guarantee observance of the Seven Mitzvos of Bnei Noach.

4. EIVER MIN HACHAI, eating flesh taken from a live animal.

This prohibition includes eating a limb or flesh removed from an animal that is still halachically considered alive even if the animal is now dead.

In the context of this mitzvah, the Rishonim raise an interesting question. Adam was forbidden to eat meat (see Bereishis 1:29-30), but Noach was permitted to after the Flood (Bereishis 9:3; see Rashi in both places). So why was Adam prohibited from eating flesh of a living animal if he was prohibited from eating meat altogether?

Two differing approaches are presented to answer this question. The Rambam explains that the prohibition to eat meat that was given to Adam was rescinded after the Flood, and it was then that the prohibition of Eiver Min HaChai was commanded to Noach for the first time (Rambam, Hilchos Melachim 9:1). According to this approach, six of the present day “Seven Mitzvos” were commanded to Adam, while the seventh was not commanded until the time of Noach.

Other Rishonim contend that Adam was permitted to eat the meat of an animal that was already dead and only prohibited from killing animals for food. In addition, he was prohibited to eat meat that was removed from a living animal and this prohibition is one of the “Seven Mitzvos” (Rashi, Sanhedrin 57a s.v. limishri, and Bereishis 1:29; Tosafos, Sanhedrin 56b s.v. achal). The first prohibition was rescinded after the Flood, when mankind was permitted to slaughter animals for food. Thus according to the Rambam, Adam was prohibited both from killing animals and from eating any meat, while according to the other Rishonim, he was prohibited from killing animals but allowed to eat meat.

ANIMAL BLOOD

Although a non-Jew may not eat the flesh of a living animal, he may eat blood drawn from a living animal (Rambam, Hilchos Melachim 9:10; cf. Gemara Sanhedrin 56b and 59a, and Rashi, Breishis 9:3). Some African tribesmen extract blood from their livestock, mix it with milk, and drink it for a nutritious beverage. Although we may consider this practice very offensive, it does not violate the mitzvos of a non-Jew in any way.

5. BLASPHEMY.

A non-Jew who curses Hashem is subject to capital punishment if his crime was witnessed. As with his other mitzvos, he may not claim that he was unaware it is forbidden.

6. STEALING.

This prohibition includes taking even a very small item that does not belong to him, eating something of the owner’s on the job without permission, or not paying employees or contractors (Rambam, Hilchos Melachim 9:9). According to some opinions, it includes not paying workers or contractors on time (Meiri, Sanhedrin).

7. DINIM, literally, laws.

This mitzvah includes the application of civil law code, including the laws of damages, torts, loans, assault, cheating, and commerce (Ramban, Breishis 34:13; cf. Rambam, Hilchos Melachim 9:14). Furthermore, there is a requirement to establish courts in every city and region to guarantee that people observe their mitzvos (Gemara Sanhedrin 56b; Rambam, Hilchos Melachim 9:14).

ARE NON-JEWS REQUIRED TO OBSERVE THE COMMERCIAL LAW OF THE TORAH?

Does the mitzvah of Dinim require non-Jews to establish their own system of law, or is the mitzvah to observe and enforce the Torah’s mitzvos, what we would usually refer to as the halachos of Choshen Mishpat?

In a long tshuvah, the Rama (Shu”t #10) contends that this question is disputed by Amorayim in the Gemara. He concludes that non-Jews are required to observe the laws of Choshen Mishpat just like Jews. Following this approach, a non-Jew may not sue in a civil court that uses any system of law other than that of the Torah. Instead, he must litigate in a beis din or in a court of non-Jewish judges who follow halachic guidelines (see Rambam, Hilchos Melachim 10:11). Therefore, a gentile who accepts money on the basis of civil litigation is considered stealing, just like a Jew. The Rama’s opinion is accepted by many early poskim (e.g., Tumim 110:3; Shu”t Chasam Sofer, Choshen Mishpat #91).

However, the Netziv disagrees with the Rama, contending that non-Jews are not obligated to observe the laws of Choshen Mishpat. In his opinion, the Torah requires non-Jews to create their own legal rules and procedures. Although a Jew is forbidden from using the non-Jewish court system and laws (see the article published in these pages on Parshas Shoftim), according to the Netziv a non-Jew may use secular courts to resolve his litigation and indeed fulfills a mitzvah when doing so (HaEmek Shaylah #2:3). Other poskim accept this approach (Even HaEzel; Chazon Ish, Bava Kamma 10:1). Several major poskim contend that the dispute between the Rama and Netziv is an earlier dispute between the Rambam and Ramban (Shu”t Maharam Schick, Orach Chayim #142; Shu”t Maharsham 4:86; Shu’t Avnei Nezer, Choshen Mishpat #55).

What is a non-Jew to do if he must sue someone? May he litigate in civil court or must he sue in beis din? Because this subject is disputed, we would have to decide whether the rule of “safek di’oraysa l’chumra” (we are strict regarding a doubt concerning a Torah law) applies to a gentile. (Although I have seen no literature on this shaylah, I believe that it is subject to dispute.) If the gentile asks how to proceed in the most mehadrin fashion, we would tell him to take his matter to beis din because this is permitted (and a mitzvah) according to all opinions.

It should be noted that according to both opinions, a non-Jew must observe

dina di’malchusa dina—laws established by civil authorities for the common good. Therefore, he must certainly observe tax codes, traffic laws, building or zoning codes, and regulations against smuggling.

AN INTERESTING SHAYLAH – BRIBING A DISHONEST JUDGE

The Chasam Sofer (6:14) was asked the following shaylah: A gentile sued a Jew falsely in a dishonest court. The Jew knew that the gentile judge will rule against him, despite the absence of any evidence. However, bribing the judge may gain a ruling in the Jew’s favor. May he bribe the dishonest judge to rule honestly?

Chasam Sofer rules that it is permitted. The prohibition against bribing a non-Jew is because a gentile is responsible to have an honest court. However, one may bribe a dishonest judge to rule honestly. (Of course, the Jewish litigant must be absolutely certain that he is right.)

OTHER PROHIBITIONS

In addition to the “Seven Mitzvos,” there are other activities that are also prohibited to a non-Jew. According to some opinions, a non-Jew may not graft trees from different species or crossbreed animals (Sanhedrin 56b; Rambam Hilchos Melachim 10:6; Meiri ad loc.; cf. Shach Yoreh Deah 297:3 and Dagul Mei’re’vavah ad loc.; Chazon Ish Kilayim 1:1). Some poskim even prohibit a non-Jew from owning a grafted fruit tree, and a Jew may not sell him such a tree because he is causing a non-Jew to violate his mitzvah (Shu’t Mahar”i Asad, Yoreh Deah #350; Shu’t Maharsham 1:179).

Some poskim contend that non-Jews are prohibited from engaging in sorcery (see Kesef Mishneh, Hilchos Avodah Zarah, 11:4). According to this opinion, a non-Jew may not use any type of black magic, necromancy, or fortune telling. However, most opinions disagree (Radbaz to Hilchos Melachim 10:6).

MAY A NON-JEW OBSERVE MITZVOS?

A gentile may not keep Shabbos or a day of rest (without doing melacha) on any day of the week (Gemara Sanhedrin 58b). The reason for this is subject to dispute. Rashi explains that a non-Jew is obligated to work everyday because the Torah writes, “Yom VaLayla Lo Yishbosu,” which can be interpreted to mean, “Day and night they (i.e., the non-Jews) may not rest.” The Rambam (Hilchos Melachim 10:9), however explains that a gentile is prohibited from making his own holiday, or religious observance because the Torah is opposed to the creation of man-made religions. In the words of the Rambam, “A non-Jew is not permitted to create his own religion or mitzvah. Either he becomes a righteous convert (a ger tzedek) and accepts the observance of all the mitzvos, or he remains with the laws that he has without adding or detracting.” A third reason mentioned is that a Jew may mistakenly learn from a gentile who keeps a day of rest and the Jew may create his own mitzvos (Meiri).

Because of this halacha, a non-Jew studying for conversion must perform a small act of Shabbos desecration every Shabbos. There is a dispute among poskim whether this applies to a non-Jew who has undergone bris milah and is awaiting immersion in a mikvah to complete his conversion (Shu”t Binyan Tzion #91).

POSITIVE MITZVOS

You probably noticed that there are few positive mitzvos among the non-Jew’s commandments. They are required to believe that the mitzvos were commanded by Hashem through Moshe Rabbeinu (Rambam Hilchos Melachim 8:11). They are also obligated to establish courts. A non-Jew is permitted to observe the mitzvos of the Torah, except for those mentioned above (Rambam, Hilchos Melachim 10:10). He is even permitted to offer korbanos (Zevachim 116b).

STUDYING TORAH

The Gemara states that a gentile is not permitted to study Torah (Sanhedrin 59a). One opinion of the Gemara explains that the Torah belongs to the Jewish people and by studying Torah the gentile is “stealing” Jewish property. However, there are many exceptions to this ruling. Firstly, a gentile may study all the halachos applicable to observing his mitzvos (Meiri). Rambam rules that it is a mitzvah to teach a non-Jew the halachos of offering korbanos if he intends to bring them (Rambam, Maasei HaKorbanos 19:16). According to the Rama’s opinion that a non-Jew must observe the Torah’s civil laws, the gentile may study all the intricate laws of Choshen Mishpat. Furthermore, since a non-Jew is permitted to observe other mitzvos of the Torah (other than those mentioned above), some opinions contend that he may learn the laws of those mitzvos in order to observe them correctly (Meiri, Sanhedrin 58b).

There is a dispute among poskim whether one may teach a non-Jew Torah if the non-Jew is planning to convert. The Meiri (Sanhedrin 58b) and Maharsha (Shabbos 31a s.v. amar lei mikra) rule that it is permitted, whereas Rabbi Akiva Eiger forbids it (Shu”t #41). Others permit teaching Nevi’im and Kesuvim to non-Jews (Shiltei HaGibborim, Avodah Zarah 20a, quoting Ohr Zarua) and other poskim permit teaching a non-Jew about miracles that the Jews experienced (Shu”t Melamed Leho’il Yoreh Deah #77).

Incidentally, Rav Moshe Feinstein rules that one is permitted to teach Torah to Jews while a non-Jew is listening (Igros Moshe, Yoreh Deah 2:132). For this reason, he permits conducting a seder with a gentile in attendance.

OLAM HABAH FOR A NON-JEW

A gentile who observes his mitzvos because Hashem commanded them through Moshe Rabbeinu is called “Chassidei Umos HaOlam” and merits a place in Olam Habah. Observing these mitzvos carefully does not suffice to make a gentile into a Chassid. He must observe his mitzvos as a commandment of Hashem (Rambam Hilchos Melachim 8:11).

When I was a congregational rabbi, I often met non-Jews who were interested in Judaism. I always presented the option of becoming an observant ben Noach. I vividly recall meeting a woman whose grandfather was Jewish, but who was halachically not Jewish. She was keeping kosher, no small feat in her town – where there was no Jewish community. Although she had come to speak about converting, since we do not encourage this I explained the halachos of Bnei Noach to her instead.

An even more interesting experience occurred to me when I was once making a kashrus inspection at an ice cream plant. A worker there asked me where I was from, and then informed me that he used to attend a Reform Temple two blocks from my house! I was surprised, not expecting to find a Jew in the plant. However, it turned out that he was not Jewish at all, but had stopped attending church after rejecting its beliefs. Now he was concerned because he had stopped attending the Reform Temple that was far from his house. I discussed with him the religious beliefs and observances of Bnei Noach, explaining that they must be meticulously honest in all their business dealings, just like Jews. I told him that Hashem gave mitzvos both to the Jews and to the non-Jews, and that Judaism is the only major religion that does not claim a monopoly on heaven. Non-Jews too merit olam habah if they observe their mitzvos.

Over the years I have noticed that many churchgoing gentiles in the United States have rejected the spurious and strange tenets of Christianity. What they have accepted is that Hashem appeared to Moshe and the Jewish people at Sinai and commanded us about His Mitzvos. This belief is vital for a non-Jew to qualify as Chasidei Umos HaOlam – he must accept that the commandments of bnei Noach were commanded to Moshe (Rambam, Hilchos Melachim 8:11).

As Jews, we do not proselytize to gentiles, nor seek converts. However, when we meet sincere non-Jews, we should direct them correctly in their quest for truth through introducing them to the Seven Mitzvos of Bnei Noach (see Tosafos, Chagigah 13a).

On the Wings of Eagles – or Perhaps I Have the Wrong Bird

clip_image002In am sending you this article in honor of Parshas Shmini.

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Question #1: My chavrusa and I are studying Chullin, and we recently discovered a Tosafos who states that a nesher is not an eagle; yet every Chumash I have seen translates kanfei nesharim as the “wings of eagles.” Are all these translators ignorant of this Tosafos?

Question #2: While camping in Western Canada, we saw thousands of wild, roaming, land birds called “prairie chicken,” that are clearly different from the common, familiar chicken, but appear similar enough that I was tempted to bring one to a shocheit to prepare for us. Halachically, could I have done this?

Question #3: On a tour in Israel, I visited a kibbutz where they raise a variety of duck, called the Muscovy duck, for its kosher meat and liver. Yet I was told that several prominent rabbonim prohibited eating this bird. What are the halachic issues involved in the kashrus of this bird?

To answer these questions accurately and thoroughly, we need to explain the background how one identifies kosher and non-kosher species, and the differences in halachic practice that have developed.

The Torah describes the exact indicators that render fish and animals kosher, providing us with relatively clear simanim, indicating signs, to determine whether a species is kosher or not. However, regarding birds the Torah simply inventories a list of non-kosher varieties, implying that all other birds are acceptable for the Jewish palate (Vayikra 11:13- 19; Devarim 14:11- 19). Indeed, the Gemara notes that there are countless kosher bird species (Chullin 63b). After analyzing the Torah’s list, the Gemara concludes that 24 varieties (or possibly, categories) of bird are non-kosher, the remaining species all being kosher (Chullin 61b). Thus, someone who can identify all 24 species of non-kosher fowl could indeed shecht and eat any other species of bird he discovers. Furthermore, the Gemara rules that a hunter who recognizes all 24 non-kosher species may teach other people which species are kosher (Chullin 63b).

On this basis, why do we restrict ourselves to eating only familiar species? Also, is there any way that a non-hunter can identify whether a bird is kosher?

KOSHER BIRD SIMANIM

Are there any signs that indicate whether a variety of bird is kosher?

The answer is yes and no.

The Mishnah, indeed, lists four simanim that identify a bird as kosher. However, before introducing and explaining the four simanim, I need to clarify a major difference between the function of simanim in identifying kosher birds as opposed to those of fish and land animals. Any animal that possesses both simanim, that is, it has both fully split hooves and chews its cud, is kosher; any animal possessing one siman but not the other is definitely non-kosher. In the case of fish, the Torah rules that any species that possesses both fins and scales is kosher; and the Mishnah teaches that there are no species possessing scales that do not possess fins. Thus, any species of fish possessing scales is kosher, and any without scales is not.

In the case of birds, however, a bird containing all four kosher simanim is definitely kosher, and a bird that possesses none of the four simanim is not kosher. Concerning birds that possess some of the four signs but not all, some are kosher and some are not. The Gemara teaches that of the 24 species mentioned by the Torah, only the nesher lacks all four simanim. (Rashi explains that any bird variety lacking all four kosher simanim is considered a sub-category of nesher. We will see shortly why I have not translated the word nesher.) The peres and the azniah, two of the 24 non-kosher varieties, each possesses only one of the kosher simanim and lacks the other three. The oreiv, usually identified as the raven (see Tosafos, Chullin 62a s.v. mipnei who discusses whether this identification is accurate) and the zarzur each has two kosher simanim and lack the remaining two, and the remaining 19 types of non-kosher bird each has three of the simanim and lacks only one. (This follows the approach of most interpretations of this passage of Gemara.)

However, there are many varieties of kosher bird that only possess some kosher signs and lack others. For example, geese contain only three of the four kosher simanim, and yet are 100% kosher!

Any bird possessing some, but not all, of the simanim is still kosher if it is not one of the 24 species listed by the Torah. Since this is true, how can one tell whether a bird containing some kosher signs is indeed kosher? Only if one knows all 24 types of non-kosher birds mentioned in the Torah, could one thereby identify the remaining kosher varieties. This is exactly what the expert hunter of the Gemara does. Furthermore, he may educate others that a specific species is kosher. However, those of us without access to his expertise would not be able to consume birds unless we had a mesorah, an oral tradition, that this is a kosher bird, in which case one could eat it even if it does not have all four kosher simanim (Chullin 63b).

IDENTIFYING KOSHER WITHOUT A MESORAH

According to the Mishnah, someone who finds a variety of bird for which he has no mesorah may still eat it based on the following rules:

“Any bird that is doreis is not kosher. Any that possesses an “extra claw,” and has a crop, and whose gizzard can be peeled is kosher (Chullin 59a).” I will shortly explain what these simanim are.

According to Rashi, the Mishnah is teaching that if we can identify a bird that has all four of the simanim, that is, it is not doreis, it possesses an “extra claw,” has a crop, and has a gizzard that can be peeled, the bird is definitely kosher. The Gemara records that all the varieties of dove mentioned by the Torah as korbanos have these four indicating simanim. Thus, according to Rashi’s understanding of the Mishnah, one may only eat a variety of bird that has no mesorah if it possesses all four simanim. (It should be noted that most other Rishonim interpret the Mishnah differently, and indeed rule that, under certain very specific circumstances, one may eat certain birds based on some, but not all, of the simanim.)

Although a bird may have only some of the four simanim and still be kosher, any bird with all four simanim is unquestionably kosher according to the Mishnah.

What are the four simanim?

DOREIS

I. Any bird that is doreis is not kosher. Thus, the kosher siman is that a bird is not doreis.

People often mistranslate the word doreis as predator. However, this is inaccurate, since chickens, which the Mishnah teaches are kosher, are technically predators since they feast on worms and insects.

The Rishonim debate what the word doreis means; here are five different interpretations:

A. The bird lifts its prey from the ground with its claws when feeding (Rashi, Chullin 59a s.v. hadoreis).

B. It grips and restrains its food while eating (Rashi, Chullin 62a s.v. vehani milei).

C. It preys on smaller birds or rodents, which it devours while they are alive (Rabbeinu Tam, cited in Tosafos Chullin 61a s.v. hadoreis).

D. It poisons with its talons (Ran, Chullin, page 20b in Rif, as explained by the Aruch HaShulchan 82:5) (A talon is a claw, but the word “talon” is typically used only for predators.)

E. It pounces on its prey with its talons (the above-quoted Ran, as explained by the Shach, Yoreh Deah 82:3).

Thus, by observing a bird’s feeding and clawing behavior one may be able to determine that it is non-kosher.

It must be emphasized, that although all birds that are doreis are non-kosher, the inverse is not true. There are varieties of fowl that are not doreis, yet nevertheless are not kosher.

The Gemara does not state that a bird must be doreis frequently to qualify as such. Rather, it implies that a bird is non-kosher if it is ever doreis (Chullin 62b). Thus, it may be difficult to easily identify a bird as a non-doreis, a fact with major ramifications.

INDICATIONS OF DOREIS

The Mishnah records an alternative method of verifying whether a bird is doreis: Rabbi Elazar ben Rabbi Tzadok rules that any bird that splits its talons, two before and two behind, when it grips a rope, is doreis and therefore not kosher (Chullin 59a, as explained there by the Gemara 65a). (Note that the halachic authorities all quote this opinion as definitive [Tosafos Yom Tov ad loc.].)

It is noteworthy that an early halachic authority cites a different mesorah for identifying a bird that is not doreis. Any bird with a wide beak and webbed feet is not doreis (Baal HaMaor). The Rishonim quote this approach and it is recorded in Shulchan Aruch (Yoreh Deah 82:3).

Tosafos raises a question: How did Chazal research that not one kosher species anywhere in the world is doreis? How can the Gemara confidently say that none of hundreds of kosher bird species is doreis? Tosafos rules out the explanation that this was an oral tradition communicated to Moshe Rabbeinu at Har Sinai (halacha leMoshe miSinai) because if that were true, the Torah need not have mentioned all 24 varieties of non-kosher bird in order to identify all non-kosher varieties. Instead, it could have succinctly taught that all birds that are doreis are non-kosher, and in addition, listed the remaining small list of non-kosher birds that are not doreis.

Tosafos concludes that Noah, who knew which birds are kosher and which are not, observed that none of the kosher varieties were doreis (Chullin 61a s.v. kol of). Thus, the siman that a doreis is not kosher is an oral tradition dating back to Noah.

BODY SIMANIM

So far, we have identified one siman that identifies some non-kosher birds, which is based on avian feeding behavior. The other simanim are all anatomical features, two internal and one external. One of these simanim is the crop such as is found in doves, chickens, and most, but not all, varieties of bird that we are accustomed to consider kosher.

What is a crop?

The crop is a very interesting part of a bird’s digestive system. It is essentially a storage bag for undigested food that Hashem provided for smaller birds to enable them to survive in the wild. A brief description of the life of a small bird will help us understand the chesed Hashem performed for these birds.

Smaller birds always need to worry that they are potential lunch for larger ones. As such, they must be careful to expose themselves to harm very briefly before returning to their safe hideouts. What happens if a small bird finds a plentiful supply of seeds that would keep it satisfied for a while, but the seeds are located in a place where a leisurely feast could easily render the bird into an available dinner for a predator?

Hashem came to the rescue of the smaller bird and provided it with a crop! The crop does not digest the food, but functions as an expandable storage pouch allowing the small bird to gobble its food quickly. Once the gizzard and crop hold as much as they possibly can, the bird escapes to its safe cover, secure from predators. At this point, the gizzard grinds the seeds inside it, and when empty receives more from the crop. This way the bird gradually turns into nutrition what it quickly gobbled without having to reach for a bottle of Tums to recover from the huge indigestion that afflicts humans when they eat too much at one time.

REASONS FOR A CROP

Although we cannot be certain of the reasons for the Torah’s mitzvos, the commentators conclude that we should attempt to understand why the Torah commanded us concerning the mitzvos. Perhaps the crop is a siman of kosher birds since smaller birds that eat seeds usually possess this organ in order to protect themselves from predators. Thus, although man usually lauds the large, impressive birds such as the eagle, falcon, and condor, the Torah is teaching that its message is better conveyed through the smaller birds that protect themselves by fleeing. We find this idea in a Midrash, which points out that the only bird kosher for the mizbayach are doves, which are hunted by larger birds of prey.

ONE CAN PEEL ITS GIZZARD

One of the four simanim of a kosher bird is that one can peel off the inside of its gizzard. We are all familiar with a chicken’s gizzard, although many of us know it by its Yiddish name, the pupek. The hard muscle of the pupek grinds the food, which begins its digestive process. A bird swallows its food whole, which means that its gizzard must accomplish what humans achieve with their teeth and saliva.

How does the toothless bird “chew” the seeds it eats? Hashem, who provides food even for the young raven (Tehillim 147:9), provided all birds with the ability to digest their food in incredible ways. The bird swallows pebbles which are held in the gizzard. The powerful gizzard muscles grind the food with these pebbles.

The special lining of the gizzard protects the gizzard itself from becoming damaged by these stones. In birds containing all four kosher simanim, this lining of the gizzard can be peeled off the gizzard (obviously, only post-mortem).

BY HAND OR BY BLADE?

The Gemara discusses eight varieties of bird that have uncertain kashrus status. In all eight cases, the birds were not doreis and may have been kosher. However, these birds’ gizzards can be peeled only by a knife, and not with one’s fingernails. The Gemara was uncertain whether this qualifies as a kosher siman. Since we cannot positively identify these eight varieties of bird as kosher, and we have no mesorah identifying them as such, we must treat them as non-kosher (Chullin 62b).

AN EXTRA CLAW

One of the four simanim that can identify a bird as definitely kosher is the possession of an “extra claw.” Where is this extra claw located?

The Rishonim disagree, some understanding that this claw points in the opposite direction from the other claws of the birds; whereas others explain that in addition this claw must protrude at a higher point on the leg than the other claws. A third approach understands that the claw is on the same side of the bird’s leg as the other claws but protrudes outward farther than the others.

Although these differences seem rather technical for those of us who are not habitual bird watchers, there is a significant nomenclature concern that results from this discussion. Is a nesher indeed an eagle?

Chazal tell us that of the 24 non-kosher birds identified by the Torah, only a nesher lacks all four kosher signs. This means that only a nesher is doreis, does not possess an “extra claw,” is crop-less, and has a gizzard that cannot be peeled. Any bird that has some of these simanim, but not all, may indeed not be kosher, but it is not a nesher.

IS THE NESHER AN EAGLE?

“Everyone” knows that a nesher is an eagle. However, Tosafos notes that an eagle possesses a talon that is opposite the other claws on its leg, and on this basis he concludes that a nesher cannot possible be an eagle since a nesher should not have this sign (Chullin 63a s.v. neitz). Those of us distressed to discover that the United States national bird is not a nesher will find solace in the explanation offered by the Aruch HaShulchan – that the kosher siman is that the opposing claw must also be raised higher than the other claws — whereas an eagle’s opposing claw is directly opposite the other claws (Yoreh Deah 82:3). Thus, our national pride indeed possesses no signs of kashrus!

All of this does not explain whether we can eat prairie chicken or Muscovy duck. To answer this question, we will have to wait for the sequel. (Click here to view the article.)

The Mitzvah of “Duchening” – Birchas Kohanim

The Mitzvah of “Duchening” – Birchas Kohanim

In Parshas Naso, the Torah teaches us about the beautiful mitzvah of Birchas Kohanim, wherein the kohanim are commanded to bless the people of Israel. This mitzvah is usually referred to by Ashkenazic Jews as “duchening” and by Sefardic Jews as Birchat Kohanim, or occasionally as Nesiyat Kapayim, which refers to the raising of the hands that the kohanim do in order to recite the blessings.

Why Is This Mitzvah Called Duchening?

Duchen is the Aramaic word for the platform that is in front of the Aron Kodesh. The duchen exists to remind us of the ulam, the antechamber that stood in front of the Kodesh and the Kodshei HaKodoshim, the holy chambers in the Beis HaMikdash. The Kodshei HaKodoshim was entered on only one day of the year, on Yom Kippur, and then only by the Kohen Gadol. The Kodesh was entered a few times daily but only to perform the mitzvos of the Menorah, the Golden Mizbayach (altar), and the Shulchan (the Holy Table that held the Lechem HaPanim). Before entering the Kodesh, one ascended into the Ulam as a sign of respect that one should not immediately enter the Kodesh.

Similarly, in our shuls the Aron Kodesh represents the Kodesh, since we are permitted to open it and to remove the sifrei torah when we need to. But before entering the Kodesh, one ascends the duchen as a sign of respect that one should not immediately each the Aron Kodesh.

 

The duchen also serves other functions, one of which is that the kohanim stand upon it when they recite the blessings of Birchas Kohanim. For this reason, this mitzvah is called duchening (duchenen in Yiddish). In the absence of a duchen, or if there are more kohanim in the shul than there is room for them on the duchen, the kohanimduchen” while standing on the floor in the front of the shul.

Basics of Duchening

There is a basic order to the duchening that occurs during the repetition of the shmoneh esray. When the chazan completes the brochah of modim and the congregation answers “amen” to his brocha, someone (either the chazan of a member of congregation, depending on minhag) then calls out “kohanim” to inform the kohanim that it is time for them to begin the brochah. The chazan then reads each word of the Birchas Kohanim that is recorded in the Torah (Bamidbar 6:24-26) for the kohanim to recite, and the kohanim respond. After each of the three brochahs are recited, the congregation responds “amen” to the brochah. Finally, after the last brochah of the birchas kohanim is completed by the kohanim, the chazan returns to the repetition of the shmoneh esray by reciting the brochah of sim shalom.

The Gemara and poskim teach us that at each of these stages, one must be careful not to recite one’s part before the previous step has been completed. Thus,

the person who calls out “kohanim,” must be careful not to do so before the congregation has finished answering “amen” to the chazan’s brochah; the kohanim should be careful not to recite the words of the brochah before the chazan has completed saying the word “kohanim”; the chazan may not call out “yivarechecha” before the congregation has completed saying “amen” to the brochah of the kohanim, etc. It is important to be mindful of these halachos and allow each stage to be completed before beginning the next. Unfortunately, even well-learned people are sometimes not sufficiently careful to wait until it is time for their part to be recited.

Wearing Shoes During Duchening

A kohen may not duchen while wearing shoes. The Gemara tells us that this was one of the nine takkanos that were instituted by Rabbi Yochanan ben Zakai (Sotah 40a). Although there would seem to be an obvious association with the halacha that the kohanim performed the service in the Beis HaMikdash barefoot, the actual reason for this takkanah is more practical. Rabbi Yochanan ben Zakai was concerned that a kohen’s shoelace would tear while he was on the way to the duchen. While stopping to retie his shoelace, the kohen would miss the duchening. However, people who saw that he missed the duchening would rumor that he is not a valid kohen and that is why he did not duchen! For this reason, chazal instituted that every kohen simply removes his shoes before duchening.

Wbat if the Chazan is a Kohen?

The mishnah states that when there is only one kohen in shul, and he is the chazan, then he may (and should) duchen (Berachos 34a). In this instance, the kohen will remove his shoes and wash his hands prior to beginning repetition of the shmoneh esray. There is a dispute among poskim whether a kohen may duchen when he is the chazan and there are other kohanim who will be duchening. Shulchan Aruch rules that he should not duchen under these circumstances, because of a concern that he will become confused where he is up to in the davening and have difficulty resuming his role as chazan (128:20). Chazal instituted this even when we are certain that the chazan will not become confused, such as today when he has a siddur in front of him (Mishneh Berurah 128:72).

However, the Pri Chodosh rules that he may duchen, and that the concern referred to by Shulchan Aruch was only when the chazan might become confused (such as he does not have a siddur to daven from). In most communities in Eretz Yisrael the custom is to follow the Pri Chodosh’s ruling allowing a kohen who is the chazan to duchen. However, in chutz la’aretz the practice is to follow the Shulchan Aruch and the chazan does not duchen (unless he is the only kohen).

In a situation where the chazan is the only kohen and there is a platform (the “duchen”) in front of the aron kodesh, there is a very interesting halacha that results. Since the duchening should take place on the platform, the kohen actually walks up in the middle of the shmoneh esray he is reciting as chazan in order to walk up to the duchen. After completing the duchening, he returns to his place as chazan and completes the repetition of the shmoneh esray.

The Minyan Disappeared

What do you do if you started davening with a minyan, but in the middle of davening some men left leaving you with less than a minyan? Can you still duchen?

If the minyan started the duchening with ten men or more, and then some men left in the middle of the duchening, they should complete the duchening (Biyur Halachah 128:1 s.v. bipachus).

What Happens if a Kohen Who Does Not Want to Duchen?

A kohen who does not want to duchen for some reason should stand outside the shul from before the time that the word “kohanim” is called out, until the duchening is completed.

The Days that We Duchen

The prevalent custom among sefardim and other edot hamizrach is to duchen every day. There are many Ashkenazic poskim who contend that Ashkenazim should also duchen every day. However, the standard practice in chutz la’aretz is that Ashkenazim duchen only on Yomim Tovim. In most of Eretz Yisroel, the prevalent practice is that Ashkenazim duchen every day. However, in Tzfas and much of the Galil the custom is that the kohanim duchen only on shabbos and Yom Tov.

Why do Ashkenazim duchen in Eretz Yisrael every day, and in Chutz La’Aretz only on Yom Tov?

Several reasons are cited to explain this practice. Rema explains that a person can only confer blessing when he is fully happy. Unfortunately, except for the Yomim Tovim, the kohanim are distracted from true happiness by the difficulties involved in obtaining basic daily needs. However, on Yomim Tovim the kohanim are in a mood of celebration. Thus, they forget their difficulties and can bless people with a complete heart (Rema 128:44; cf. Be’er Heiteiv ad loc.). Thus, only on Yom Tov do the kohanim duchen.

In Eretz Yisroel, the practice is to duchen daily because the Ashkenazim there followed the ruling of the Vilna Gaon. He contended that Ashkenazim everywhere should duchen every day.

Why do the kohanim in Tzfas duchen only on Shabbos and Yom Tov?

The reason for this custom is unclear. I was once told in the name of Rav Kaplan, the Rav of Tzfas for many decades, that since Tzfas had many tzoros over the years, including many serious earthquakes and frequent attacks by bandits, that the people living there did not have true simcha. However, they were able to achieve enough simcha on Shabbos to be able to duchen. This reason does not explain why the other communities in the Galil duchen only on Shabbos.

It should be noted that the Sefardim in Tzfas duchen every day, not only on Shabbos.

Taking off Shoes

Chazal instituted that a kohen should remove his shoes before duchening. Unfortunately, some kohanim leave their shoes lying around in the front of the shul when they go up to duchen. This practice is incorrect. The kohanim are required to place their shoes under the benches or in some other inconspicuous place when they go up to duchen. It shows a lack of kovod to leave the shoes lying about (Mishneh Berurah 128:15)

Washing Hands

In some shuls the Kohanim wash their hands in the front of the shul before they go up to duchen. What is the reason for this practice?

This custom has a source in Rishonim and Poskim and should definitely be encouraged  Tosafos (Sotah 39a s.v. kol) rules that one should wash one’s hands relatively near to the duchen. In Tosafos’ opinion, washing further from the duchen constitutes an interruption, a hefsek, similar to talking between washing netilas yodayim and making hamotzi on eating bread. (His actual ruling is that one should wash one’s hands within twenty-two amos of the duchen, which is a distance of less than forty feet.) Thus, according to Tosafos, we are required to place a sink within that distance of the duchen where the kohanim stand to duchen. Magen Avrohom rules like this Tosafos. Magen Avrohom adds that, according to Tosafos, since the kohanim wash their hands before retzay, the chazan should recite the brochah of retzay speedily. In his opinion, the time that transpires after the kohen washes his hands should be less time than it takes to walk twenty-two amos (128:9). Thus, retzay must be recited in less time than it takes to walk twenty-two amos. Biyur Halachah adds that the kohanim should not converse between the washing of their hands and the duchening because this also constitutes a hefsek.

Duchening and Dreams

A person who had a dream that requires interpretation, but does know whether the dream bodes well, should recite a prayer at the time of the duchening (Berachos 55b; Shulchan Aruch 130:1). It should be noted that the text of the prayer quoted by the Gemara is different from that quoted in the majority of siddurim. The Gemara cites the following text for this prayer:

“Master of the World, I am yours and my dreams are yours. I dreamed a dream that I do not know what it is- whether it is something I have dreamt about myself or it is something that my friends dreamt about me or whether it is something that I dreamt about them. If these dreams are indeed good, strengthen them like the dreams of Yosef. However, if the dreams need to be healed, heal them like Moshe healed the bitters waters of Marah and as Miriam was healed from her tzaraas and as Chizkiyahu was healed from his illness and as the waters on Yericho were healed by Elisha. Just as you changed the curse of Bilaam to a blessing, so to change all my dreams for goodness.” According to the opinion of the Vilna Gaon, this prayer should be recited at the end of all three blessings rather than reciting the “Yehi Ratzon” that is printed in most siddurim (Mishneh Berurah 130:5).

One should complete the prayer at the moment that the congregation answers Amen to the blessings of Birkas Kohanim. This prayer can be recited not only when one is uncertain of the interpretation of the dream but even when one knows that the dream bodes evil (Mishneh Berurah 130:4).

Among Ashkenazim in chutz la-aretz, where the practice is to duchen only on Yom

Tov, the custom is to recite this prayer every time one hears the duchening since there is a likelihood that since the last Yom Tov one had a dream that requires interpretation (Mishneh Berurah 130:1). This prayer is not recited on Shabbos unless one had a bad dream that night (Mishneh Berurah 130:4). In Eretz Yisrael, where the custom is to duchen daily, the practice among Ashkenazim is to recite the prayer for dreams at the last of the three berachos of the duchening at musaf on Yom Tov. The custom is that the kohanim chant the last word of the brochah on these days of on these days of Yom Tov to allow people sufficient time to recite these prayers.

In all places, the custom among Sefardim is not to recite the prayer unless the person had such a dream.

As a kohen myself, I find duchening to be the most beautiful of mitzvohs. We are indeed so fortunate to have a commandment to bless the our fellow Jews, the children of Our Creator. The nusach of the bracha is also worth noting. “levarach es amo yisrael b’ahava”- to bless His nation Israel with love. The blessings of a kohen must flow from a heart full of love for the Jews that he is privileged to bless.

Being a Good Guest, or The Halachic Etiquette When Visiting Someone’s House

vayeira_1

Parshas Va’Yera describes how Avraham Avinu treated his guests, and how his angelic guests behaved. From these interactions, Chazal derive many halachos pertaining to the behavior of a guest in someone’s house.

Some of these rules are fairly self-explanatory. For example, a guest should not bring with him another guest (Bava Basra 98b).

A guest should feel that whatever the host serves and prepares is in his honor. The Gemara explains, “What does a good guest say? How hard the host worked for me! How much meat he brought! How much wine he served! How many dainty dishes he prepared! And all this he prepared for me!”

On the other hand, what does a bad guest say? “Did the host work for me? I ate only one roll and one piece of meat and drank only one cup of wine. All the work he did was done for his wife and children!”

A STRANGE CONVERSATION

In the context of learning proper etiquette, the Gemara (Pesachim 86b) records the following anomalous story. Rav Huna the son of Rav Nosson visited the house of Rav Nachman bar Yitzchak, where apparently Rav Huna was not known. His hosts asked Rav Huna, “What is your name,” to which he replied “Rav Huna.” They then offered him to sit on the couch, although everyone else was sitting either on the floor or on benches, and the couch was reserved for special guests. Rav Huna sat on the couch and did not decline the honor. Subsequently, they brought him a kiddush-sized cup full of wine, which he immediately accepted and drank in front of them, but he paused once in the middle of drinking.

Rav Nachman’s household, which included talmidei chachamim, felt that Rav Huna’s responses to their invitations were inappropriate and peppered him with questions about his behavior. (Since he had identified himself as a talmid chacham, all of his acts could teach someone a halachic lesson. However, they disagreed and felt that he had not acted correctly; it was therefore appropriate to ask him to explain his behavior.) The conversation that ensued is the source of many halachos.

“Why did you introduce yourself as ‘Rav Huna?’” they first asked. Is this an appropriate way to identify oneself?

Rav Huna responded: “That is my name.”

“Why did you sit on the couch when we offered?” They felt that it would have been proper for him to politely refuse the honor and to sit on the floor with everyone else (Tosafos).

Rav Huna retorted by quoting the now famous halachic adage, “Whatever the host asks you to do, you should do (see Mesechta Derech Eretz Rabbah 6:1).”

The hosts continued, “When we offered you the cup, why did you accept it the first time we offered it?”

To which Rav Huna replied, “One may refuse a small person, but one should not refuse the request of a great person.” As we will see shortly, the source for this halacha is in this week’s parsha.

The hosts then inquired, “Why did you drink the small cup of wine we gave you in two gulps, rather than drink it all at once?”

Rav Huna countered, “The earlier authorities taught us that only a guzzler drinks a whole cup of wine at once and arrogant people drink a cup with three sips. The proper way to drink a cup of wine is in two swallows (Mesechta Derech Eretz Rabbah 8).”

Finally, his hosts asked, “Why did you not turn your face when drinking?” A talmid chacham should not eat or drink in the presence of many people (Gemara and Rashi, Bechoros 44b). To this Rav Huna replied that only a bride should be so modest; for anyone else this is not considered modesty (Rashi, Pesachim 86b).

WHAT DID THEY MEAN?

In the course of this puzzling conversation, Rav Huna taught his hosts (and us) several halachos germane to proper etiquette that need to be understood properly. We will now dissect the conversation between these scholars to understand its underlying lessons.

1. He identified himself as “Rav Huna.” Isn’t this a conceited way of introducing oneself? Why would Rav Huna, a great Torah scholar and tzadik, have done this?

The source of this halacha (Nedarim 62a) reads as follows:

Rava pointed out that two verses seem to contradict one another. In one verse, Ovadiah says to Eliyahu, your servant has feared Hashem from his youth (Melachim I 18:12), implying that it is appropriate to make a true statement about one’s spiritual accomplishments. On the other hand, Mishlei (27:2) declares, someone else should praise you, but not your mouth. Rava explains that the pasuk in Mishlei applies only when there are people present who can notify others that this person is a talmid chacham. However, if no one here knows that he is a talmid chacham, he may notify people of his special status in order to receive his deserved rights and so that people are not punished for treating him disrespectfully (Rosh, Nedarim 62a).

Since the members of Rav Nachman’s household were unaware that Rav Huna was a talmid chacham, it was appropriate for him to bring this to their attention (Meiri; Maharsha).

It is noteworthy that when Rav Huna explained why he had identified himself as Rav Huna, the Gemara quotes him as saying baal hashem ani, which Rashi seems to explain as meaning, this was always my name. However, this is not the usual way in either Hebrew or Aramaic of telling someone one’s name or appellation. Alternatively, the words baal hashem ani can be interpreted as meaning, I am well known by that name, which implies that he was a well-known personage, although he was apparently unknown by the members of Rav Nachman’s household (see Meiri). Thus, he was responsible to inform them who he was so that they should not treat him disrespectfully.

WHY NOT SIT ON THE COUCH?

2. The hosts proceeded to inquire about his next act:

“Why did you sit upon the couch when we invited you?” Apparently, they felt that it was inappropriate for him to sit on the couch and he should have politely refused the honor. To this inquiry Rav Huna replied, “Whatever the host asks you to do, you should do.”

Did the hosts indeed want him to sit in the finest seat in the house, or were they simply being polite? Is the host’s offer genuine, or does he really prefer that I refuse the offer? It is not unusual to face this type of predicament.

Rav Huna answers that when the host’s intent is unclear, one should assume that his offer is sincere and do as he suggests.

There is a clear exception to this rule. When one suspects that the host cannot afford his offer and is only making it out of embarrassment, one should not accept his offer. This is referred to as a seudah she’ainah maspekes libaala, lit., a meal insufficient for its owner (Rambam, Hilchos Teshuvah 4:4; also see Gemara Chullin 7b and Rashi).

DO WHAT THE HOST ASKS

Why should one do whatever the host requests?

Here are two interpretations of this statement of Chazal:

A. A visiting (nonpaying) guest should do whatever the host asks him to, since this is a form of payment for services rendered. In return for free accommodations, the guest should reciprocate by performing the tasks and errands the host requests of him (Bach, Orach Chayim 170).

In a sense, this parallels the modern practice of presenting the host with a gift. (One can find halachic sources for this practice in the Sefer Orach Meisharim 18:2.) The gift reciprocates the host’s kindness. However, the host often prefers different favors, such as babysitting, rather than a box of chocolates that his waistline can do without, or an additional bouquet of flowers that will soon wilt. Therefore, one’s reciprocation can consist of doing any appropriate favors for the host.

In a similar vein, if one has the opportunity to reciprocate hospitality, one should do so (Orach Meisharim 18:2). However, neither host nor guest may specify in advance that the hosting will be reciprocal because of concerns of ribbis, prohibited paying and receiving interest on a loan (Rama, Orach Chayim 170:13), since the one who hosts first has in essence extended his hospitality as a loan to the other!

A DIFFERENT APPROACH

B. Courtesy dictates that a guest in someone’s house should respect his host and fulfill his requests as Master of the house (L’vush). Rav Huna ruled that denying the host’s request to honor his guest contradicts the host’s authority as Master of the house. By sitting on the couch and accepting the honor, the guest affirms his host’s authority to honor whomever he wishes in his home.

In many societies, turning down a host’s offer of a cup of tea or coffee is considered insulting. If one is unaware of local custom, one should follow Chazal’s instructions as Rav Huna did.

IF THE HOST HAS DIFFERENT KASHRUS STANDARDS

What happens if the host and the guest interpret the laws of kashrus in different ways? Must the guest follow the host’s request to join him for a meal?

If the guest follows a stricter halachic opinion that the host, the guest should apprise the host. The host may not serve the guest food that does not meet the guest’s standard unless the food is obviously something he may not eat (Shach, Yoreh Deah 119:20). For example, if the guest observes cholov yisroel fully and the host follows the poskim who permit unsupervised milk in modern Western society, the host may not cook anything that does not meet the guest’s standards without telling him. However, he may place food on the table that is obviously not cholov yisroel. Similarly, if the guest notifies the host that he uses only food with a specific hechsher, the host may not serve him food that violates this standard.

Once a halacha-abiding host knows his guest’s standards, the guest may assume that the host is accommodating his standards and eat whatever is served without further questions (Shach, Yoreh Deah 119:20). This is included in Chazal’s adage, whatever the host asks you to do, you should do, since questioning the host’s standards unnecessarily is offensive. Offending someone is always halachically reprehensible, and certainly when he has done one a favor.

PERSONAL CHUMROS

On the other hand, if the guest has a personal halachic stringency that he would rather not divulge, he should not violate his chumrah and he is not required to divulge it (Shaarei Teshuvah 170:6; Ben Yehoyada).

Generally, one should be modest when it comes to any chumrah (Birkei Yosef 170:6). Of course, one should always be aware that taking on personal chumros comes at a price, and one would discuss the matter with a gadol prior to observing a chumrah. (See the important discussion on this point in Michtav Mei’Eliyahu Volume 3 pg. 294.)

EXCEPT LEAVE

Our editions of the Gemara Pesachim 86b have two Hebrew words appended to the end of the statement whatever the host asks you to do, you should do. The additional words are, chutz mi’tzei, except leave, and therefore the passage reads, Whatever the host asks you to do you should do, except leave. It is unclear if these words are an authentic part of the text as they are not mentioned in Mesechta Derech Eretz, the source of the original statement. Some very authoritative commentators (Meiri) take exception to it, and Tur and Shulchan Aruch both omit it. The Meiri reports that these words are an incorrect textual emendation added by clowns and should be disregarded.

Nevertheless, other authorities (Bach, Magen Avraham, Ben Yehoyada) accept these words as part of the text and grapple with different possible interpretations.

What does this text mean? I found numerous interpretations of this text, including six different interpretations in one sefer (Ben Yehoyada) alone! Several of these approaches assume that performing whatever the host requests means reciprocating his favors, the first approach I mentioned above. According to these approaches, the words chutz mitzei mean that the guest is not expected to perform any inappropriate activity for the host. This would include the host asking the guest to run an errand for him outside the house, which the guest may refrain from since it is unacceptable to ask someone to run an errand in a city with which he or she is unfamiliar (Bach, Orach Chayim 170).

Nevertheless, if the host requests the guest to do something that he would ordinarily not do because it is beneath his dignity he should perform it anyway (Birkei Yosef 170:5).

THE STRANGE CONVERSATION

We now revert to explaining the original conversation that transpired between Rav Huna and his hosts.

3. The hosts continued, “When we offered you the cup, why did you accept it the first time we offered it?”

To which Rav Huna replied, “One may refuse a small person, but one should not refuse the request of a great person.”

THE INCONSISTENT ANGELS

It is interesting to note that this particular rule of etiquette is based on a passage in this week’s parsha. When Avraham Avinu invited the angels to dinner they immediately accepted, whereas when his nephew Lot invited them they initially turned him down. Only after he begged them repeatedly did they accept his invitation (Breishis 15:1-5, 16:1-3). Why did they accept Avraham’s invitation immediately and initially turn down Lot’s offer? The Gemara (Bava Metzia 86b) answers because of this rule – one may refuse a small person, but one should not refuse a great person.

This halacha has ramifications for other non-guest situations. When someone is asked to lead the services in shul (usually called to daven before the amud), he should initially decline the offer as a sign of humility. However, if a great person, such as the Rav of the shul, asks one to lead the services, one should immediately agree.

TWO GULPS?

4. The hosts now inquired, “Why did you drink the small cup of wine we gave you in two gulps, rather than drink it all at once?”

Rav Huna countered, “The earlier authorities taught us that only a guzzler drinks a whole cup of wine at once, and arrogant people drink a cup with three sips. The proper way to drink a cup of wine is in two swallows” (Mesechta Derech Eretz Rabbah 8).

A reviis-size cup of wine, which is about three ounces, should be drunk in two sips; not all at once, and not in more than two sips. It is preferable to drink about half the cup each time rather than to drink most of it and leave just a small sip for afterwards (Magen Avraham 170:12). If the cup is smaller, the wine is very sweet, or the person drinking is very obese, one may drink the entire cup at one time (Gemara Pesachim 86b, as understood by Magen Avraham 170:13). When drinking beer, one may drink a greater amount in each gulp since beer is less intoxicating than wine; and certainly when drinking non-alcoholic beverages (Magen Avraham 170:13). On the other hand, if the drink is very strong, one may drink it much slower (Aruch HaShulchan 170:9). Thus it is appropriate to sip whiskey or other strongly intoxicating beverage slowly.

TURNING YOUR FACE?

5. Finally, his hosts asked, “Why did you not turn your face when drinking?” To this Rav Huna replied that only a bride should be so modest. What is this conversation about?

A talmid chacham should not eat or drink in the presence of many people (Gemara and Rashi, Bechoros 44b). The hosts felt that Rav Huna should not have eaten in their presence without turning to the side so that they could not see him eat. Rav Huna held that the halacha that a talmid chacham should not eat or drink in the presence of many people does not apply when one is eating a meal together with other people. However, a bride should not eat in a way that other people see her eating, even if they are all participating together in a festive meal (Tosafos, Bechoros 44b s.v. vi’ayn). Therefore, Rav Huna replied that only a bride should be so modest; for anyone else this is not considered modesty (Rashi, Pesachim 86b).

The halacha is that one should not eat in the street or marketplace (Kiddushin 40b), and on the other hand, one should not stare at someone who is eating or at the food that he is eating because it embarrasses him or her (Rambam, Hilchos Brachos 7:6; Shulchan Aruch Orach Chayim 170:4).

As we see, Chazal had tremendous concern that a person act appropriately in all circumstances. We should apply this lesson to our daily lives.

Should a Kohen Be Afraid of Confederate Ghosts?

clip_image002When Yaakov Avinu asks his sons not to bury him in Egypt, Rashi notes three reasons for this request:

(1) The earth of Egypt would turn to lice during the Ten Plagues.

(2) To avoid the suffering of rolling to Eretz Yisroel at the time of techiyas hameisim.

(3) To prevent the Egyptians from making him into an idol.

On the other hand, although Yosef and his brothers undoubtedly had the same motives to be buried in Eretz Yisroel, they could not arrange their immediate burials there and were interred in Egypt until the Jews left. This is a classic example of the exhumation and reburial of meisim (human remains).

Our article will discuss a case where meisim were supposed to have been reburied, but apparently were not, creating a number of halachic concerns.

THE HISTORICAL BACKGROUND

In a major metropolis, one section of the city included a large cemetery. About 140 years ago, this cemetery was closed to new burials and later, many of its graves were exhumed. Subsequently, the city constructed residential and commercial areas, city streets, a major park, a zoo, and museums atop the seventy-two acres of the cemetery.

Here is the historical background: In 5603/1843, the city designated a sixty acre area as a cemetery and three years later, a Jewish organization paid $45 to purchase part of this land as its own cemetery. Four years later, in 5610/1850, the city purchased an adjacent area of twelve more acres to expand the cemetery, so that it now encompassed 72 acres.

However, in the late 1850’s, a prominent physician requested that the cemetery be closed because of concern that it was too close to the city’s water supply and that it might spread disease. Until that point, this cemetery was the only authorized one in the city, and included a large “potters’ field,” or area for burying the destitute and the unidentified.

Two years later, an area immediately north of the cemetery was set aside as a park. During this time, the city gradually ceased using the cemetery. However, since the area was near a large prisoner-of-war camp housing captured Confederate soldiers, an estimated 4,000 Confederates who died in custody were interred in the cemetery’s potters’ field. At one time, the cemetery held an estimated 35,000 graves, including the resting place for those who made the ultimate sacrifice for the Confederacy.

In 5626/1866 the cemetery was officially closed, partly due to the physician’s health concerns. By now, the Civil War was over and the surviving Confederate captives had been repatriated. The city officially decided to move the remains buried in this cemetery to other locations. Over the next thirty years there are numerous scattered reports of moving the graves to new locations. Despite attempts to remove graves, a conservative speculation is that the majority of the remains were never removed.

Fast forward to the modern era: In 5722/1962, workers digging a foundation for the zoo’s new barn discovered a skeleton and a casket. They reburied the casket in situ and poured the foundation right on top. During 5758/1998, workers constructing a parking lot in the area discovered 81 skeletons and an iron casket containing a cadaver. There are at least nineteen more reports of human bones found in the disused cemetery’s location.

Thus, the shaylah is whether a Kohen may walk through the streets and businesses of this old-time burial ground.

Steve Katz lives and works in this city and is well aware of the history of this park and its environs. His boss assigns him to attend a business meeting at a hotel that is located in the area that was originally the cemetery. Since Steve is a Kohen, may he attend the meeting? If he cannot, how will he explain this to his gentile employer?

Steve made an appointment to discuss the problem with his Rav, whom he knows will explain to him all the aspects of the shaylah.

WILL THE TUMAH RISE FROM THE GROUND?

Rav Goldberg begins by explaining some of the halachic background. When human remains are buried, under most circumstances the tumah rises directly above and contaminates the area above it. If a building is constructed directly above a grave, tumah may spread throughout that building, although sometimes it may spread only through the bottom floor and possibly only into the room constructed directly above the grave. We will have to leave for another time the discussion as to what factors affect how far tumah will spread through the structure.

If there is no building, tree or overhang over the gravesite, one becomes tamei only if one walks or stands directly above the gravesite.

SAFEK TUMAH BIRSHUS HARABIM

“However, the specific situation that you are asking about may be more lenient,” explains the Rav, “because of a concept called safek tumah birshus harabim, sefeiko tahor, which means, literally, that if there is doubt about whether something in a public area became tamei, the halacha is that it remains tahor (see Nazir 57a). Notwithstanding our usual assumption that safek de’oraysa lechumra, we rule strictly on doubts concerning Torah prohibitions, we rule leniently concerning a doubt of matters of tumah when the question occurred in a “public” area, a term we will define shortly.

There is also an inverse principle that safek tumah birshus hayachid, sefeiko tamei, which means that if there is doubt whether someone or something contracted tumah when they were in a private area, they are considered tamei.

WHAT IS PUBLIC?

For the purposes of these two principles, “public” is defined as an area to which at least three people have ready access, and “private” means a place that is accessible to less than three people. Thus, someone who discovers that he may have become tamei while walking down the street remains tahor. However, if he discovers that he may have become tamei while he was in a private area he is tamei. (All of these laws are derived from pesukim.)

“I know that there is more to explain,” interjects Steve, “but it would appear that one could have a situation in which one may enter a building, but one may not use the bathrooms, have a private office, or have a private interview.”

“It is certainly true,” responded the sage, “that someone entering a public building and discovering that he may have become tamei while there, would remain tahor, whereas if he entered a similar private area, he would be considered tamei. However, there are other factors to consider before we reach a definitive ruling.”

MAY THE KOHEN ENTER?

At this point, Steve raised a sophisticated point:

“I understand that someone who entered this area would afterwards be considered tahor. But may I enter the area knowing that I may be contaminating my kehunah?”

The Rav explained: “You are asking whether a Kohen may lichatchilah rely on the principle of safek tumah birshus harabim, or whether this principle is applied only after the fact. In general, one must be stringent when there is concern that one may be violating a Torah prohibition, and it is prohibited min hatorah for a Kohen to contact tumah from a meis. Thus, one could assume that a Kohen should not enter an area where there is a possibility of tumah. However, many authorities rule leniently when dealing with a safek tumah birshus harabim. They contend that the Torah only prohibited a Kohen from becoming tamei, but not from entering a situation where he will be ruled as tahor (Tosafos, Kesubos 28b s.v. Beis; Shu”t Rashba #83; Binas Odom, Klal 157; Pischei Teshuvah 369:4, quoting Shu”t Chasam Sofer, Yoreh Deah; Minchas Chinuch 263:13 s.v. Vehinei). Thus, a Kohen could enter any publicly available area, including an office or residential building constructed over the city’s defunct cemetery. However, he could not enter an area restricted to less than three people.

“Others contend that since the Torah prohibits a Kohen from being in contact with a meis, he is similarly prohibited, because of safek de’oraysah lechumra, to be in a place where he might be exposed to a meis” (Tzelach, Berachos 19b; Achiezer 3:1:1, 3:65:7; Kovetz Shiurim; Teshuvos VeHanhagos).

STATUS QUO

Steve raised another point:

“In fact, we know that this area was once a cemetery, and we are fairly certain that not all the graves were exhumed. Does this make matters worse?”

“You are raising a very insightful question. Even assuming that a Kohen can rely on the principle of safek tumah bireshus harabim, this principle might not apply here since we know that this area was once a cemetery, and we are fairly certain that some graves remain. Thus we have a chazakah, status quo, that the area was once tamei meis, and we are uncertain whether the tumah was removed. In such a situation, perhaps the principle of safek tumah birshus harabim does not apply, since this rule may apply only where there is no status quo. (In Mikvaos 2:2, this seems to be the subject of a dispute between Tannayim. See also Tosafos, Niddah 2a s.v. Vehillel.)

“Nevertheless, in our particular case, we have some basis to be lenient. Although this entire area was once set aside as a cemetery, it is very unlikely that it became filled wall-to-wall with graves, and also, only the places directly above the graves were tamei. Thus, any place within the cemetery was tamei because of doubt, not because of certainty.

JEWISH VERSUS NON-JEWISH GRAVES

“There is another reason to permit entering the hotel for your meeting. People who researched the area have ascertained the exact location of the original Jewish cemetery, which is now the location of the ball fields of a local park. Thus, although I would advise you and your sons not to play ball on those particular diamonds, we can be more lenient regarding entering the hotel constructed in the area, as I will explain.”

Steve replied: “But how can we be certain that no Jews were ever buried in the non-Jewish cemetery. There definitely were some Jewish soldiers in the Confederate army, and it is likely that some Jews were buried in the non-Jewish cemetery or in the potters’ field.”

His Rav replied: “You are correct that some Jews were probably buried in the non-Jewish parts of the cemetery. Nevertheless, since we do not know this for certain, we may work with the assumption that there are no Jews there.”

“But even a non-Jewish body conveys tumah, so I still have a problem.”

“This depends on whether remains of a gentile convey tumas ohel, that is by being under the same being under the roof, cover, or overhang that is at least three inches (a tefach) wide.

DO THE REMAINS OF A NON-JEW CONVEY TUMAH?

“Although virtually all authorities agree that remains of a non-Jew convey tumah through touching and carrying, the Gemara cites the opinion of Rabbi Shimon that remains of a non-Jew do not convey tumas ohel (Yevamos 61a). The Rishonim dispute whether this position is held universally, and, in addition, whether this is the way we rule. It appears that most Rishonim conclude that a Kohen may enter a room containing the remains of a gentile because they follow Rabbi Shimon’s position. Others contend that we do not follow Rabbi Shimon’s position and that tumah of a gentile does spread through ohel. The Shulchan Aruch considers the question as unresolved and advises a Kohen not to walk over the graves of non-Jews (Yoreh Deah 372:2).”

At this point, Steve commented. “It seems from what you are saying that it is not a good idea for a Kohen to enter buildings in this area, but one may enter if there is a pressing reason” (see Shu”t Avnei Nezer, Yoreh Deah #470).

The Rav responded: “This is the conclusion of many authorities. Some are even more lenient. One famous responsum permits a Kohen to enter a field that he purchased without realizing that it contained an unmarked gentile cemetery. The author permits this by combining two different leniencies, each of which is somewhat questionable. One leniency is that perhaps a gentile does not spread tumah through ohel, and the other leniency is that some early authorities contend that once a Kohen becomes tamei, he is not forbidden from making himself tamei again (Raavad, Hil. Nezirus 5:15, as explained by Mishneh LaMelech, Hil. Aveil 3:1). Although we do not rule like this last opinion, the Avnei Nezer contends that one can combine both of these ideas to permit the Kohen who purchased this field without realizing the problem to utilize his purchase (Shu”t Avnei Nezer, Yoreh Deah #466).”

“This case of the Avnei Nezer sounds like a much more difficult situation in which to rule leniently than mine,” noted Steve. “After all, in his case there was no attempt to clear out the cemetery.”

“You are correct. For this reason, I would certainly not find fault with someone who chose to be lenient and indiscriminately enter the area that was only a gentile cemetery, relying on the ruling that gentile remains do not contaminate through ohel, and on the principle of safek tumah birshus harabim.”

“It still seems that one should avoid the ball fields that are located right over the old Jewish cemetery.”

“I would certainly advise this,” closed the Rabbi.

So Steve does not need to explain to his boss that he cannot attend business meetings at the hotel because of lost Confederate ghosts.

Although there may be little reason to panic over such issues, as we have discussed, one should be aware that it is not infrequent to discover old cemeteries beneath modern cities. Cemeteries, particularly Jewish ones, were always consecrated on sites outside the city limits in order to avoid the obvious problems of tumah affecting kohanim. Unfortunately, when Jews were exiled, the whereabouts of many cemeteries became forgotten, and in addition, as cities expand, they include areas that were originally outside the city’s limits that often include earlier cemeteries. Thus, these problems will continue to prevail. In each case, a posek must be consulted to find out whether, and to what extent, a Kohen need be concerned.

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

It is beyond our understanding to explain why Hashem commanded us to keep each specific mitzvah. However, we can and should attempt to glean a taste of Hashem’s mitzvos in order to appreciate and grow from the experience, including understanding why the Torah bans a Kohen from having contact with a meis under normal circumstances.

Rav Hirsch, in his commentary on Vayikra 21:5, provides a beautiful educational insight into this mitzvah. In most religions, fear of death is a major “selling point” of the religion. Thus, the role of the priest is most important when dealing with the dying and the dead.

However, Torah emphasizes how to live like a Jew — to study Torah, perform the mitzvos, and develop ourselves in Hashem’s image. To emphasize that Hashem provided us with the blueprint for perfect living, the Torah excludes the Kohen, who is the nation’s teacher, from involvement with death. Thus, the Kohen’s role is to imbue us with the knowledge and enthusiasm to truly live!

What I Borrow, I Must Surely Return

In Parshas Mishpatim, the Torah teaches us the responsibilities we assume when watching or borrowing other people’s property. Personal experience has demonstrated that most people are unfamiliar with the halachic obligations entailed in borrowing.

SHE’EILAH VS. HALVA’AH

Hebrew uses two different words for borrowing, she’eilah and halva’ah, which describe two different types of transactions with major legal distinctions. She’eilah means borrowing an item that will itself be returned. In a she’eilah, the pikadon, the item loaned, remains the property of the lender, and the borrower has rights to use it. (The borrower is called the sho’el and the lender is called the mash’eil.)

Halva’ah, on the other hand, refers to an item that will not be returned. Rather, the borrower uses the item and returns its value or a replacement item. Although often people think that only borrowing money is considered halva’ah, borrowing eggs is also halva’ah since they will be eaten and different eggs will be returned. Similarly, borrowing any item that will not be returned intact is halva’ah. In a halva’ah, the borrower becomes the owner of the loaned item and assumes financial responsibility to repay the lender. Once the borrower receives the loaned item, the lender loses his legal right to ask for the item back. (An exception to this is if the item is loaned in error, for example, if I loan someone an item that is more valuable than I intended.) This is in contrast to an item given as a she’eilah where the borrower assumes responsibility to care for the item and returns it intact when the loan is over.

At times, borrowing money can be she’eilah and not halva’ah. For example, if I borrow a rare coin for an exhibit, it is understood that I do not intend to spend it and that I will return the same coin. Therefore, it has the laws of she’eilah.

OTHER DIFFERENCES BETWEEN SHE’EILAH AND HALVA’AH

There are many other halachic differences between she’eilah and halva’ah. For example, the borrower of a halva’ah that has no specific repayment deadline automatically has 30 days to repay the loan (Choshen Mishpat 73:1). However, an item lent as a she’eilah without specifying a length of time must be returned as soon as the owner wants it back (Shulchan Aruch, Choshen Mishpat 341:1).

Charging money for she’eilah is not prohibited; this is called rental. In this case, the “borrower” is now a “renter” and is less responsible for the item than a borrower is.

However, charging for a halva’ah is considered interest and is prohibited because of ribbis. It should be noted that in the case mentioned above where a coin was borrowed for an exhibit, one may charge a rental fee for the coin without incurring the prohibition of ribbis since it is a she’eilah and not a halva’ah (Yoreh Deah 176:1). (There are specific other rules that must be followed in these circumstances to avoid ribbis that are beyond the scope of this article.)

The following story illustrates a case where money was loaned as a pikadon and not as a halva’ah.

Reuven was negotiating a business deal which required investing a significant amount of his capital. The potential partner insisted on proof that Reuven could produce the required funds. Although Reuven had sufficient resources for this purpose, it was easier for him to “rent” money from a third party as a pikadon. The agreement was that he would not use the money and would return the very same banknotes to the lender.

Two shaylos are involved in this case. 1. Is this act geneivas da’as, deception, since Reuven is showing the partner someone else’s money? (This shaylah will, IY”H, be discussed in a future article.) 2. Is there a problem of ribbis?

Reuven may rent the money because he does not have the right to spend it; rather, he must return it intact. Therefore, the transaction is a she’eilah and not a halva’ah, and there is no ribbis prohibition.

We will discuss the halachos of ribbis at a different time, I”YH. For the rest of this article, we will focus on the halachos of sho’el, someone who borrows an item that will itself be returned.

RESPONSIBILITIES OF A BORROWER

In general, someone who borrows an item becomes fully responsible for its welfare. As the Torah says, if he borrowed an animal and it became injured or died, the borrower must repay, even if he was not negligent.

I borrow a friend’s laptop computer for a business trip. I take exceptional care of the laptop since it is someone else’s property, even making certain to put it in the hotel safe when not using it. While I am away one day, a fire breaks out in the hotel and the computer is irreparably damaged. Although the damage was accidental, I am still obligated to pay for the computer.

But why should I be obligated if something happened that was beyond my control? The damage was no fault of mine!

Although the details of hilchos sho’el are basically a g’zeiras hakasuv, a declaration of the Torah, there is a rationale behind these rules. When I borrow something, I receive a pure gain from the transaction since I can use the item without giving the lender anything in exchange. Therefore, the Torah obligates the borrower to ensure that the owner receives his item back, even when the borrower is not responsible for the damage (see Gemara Bava Metzia 94b; Shu”t HaRan #20).

We will later discuss two circumstances where the borrower is not responsible to compensate for the loss.

CAN I LIMIT MY RESPONSIBILITY?

Someone wants to borrow my car, but does not want to be responsible for anything that might happen to it. According to halacha, while he is borrowing my car, he is responsible if it is stolen, suffers damage from a storm or fire or is hit by another car.

Can we arrange to absolve the borrower from this responsibility?

Yes. The two parties can agree to limit the borrower’s responsibility to whatever level they are comfortable with. This is referred to as a tnai she’b’mamon, condition included in a business agreement, which is fully valid in halacha. The Mishnah states that a borrower may stipulate that he is not responsible to pay for damages even if he is negligent (Bava Metzia 94a).
SOME INTERESTING SHAILOS

Someone once asked me the following shaylah. Their yeshivah bachur son traveled back and forth between their hometown and his yeshivah, often transporting automobiles for a frum car dealer. Each side considered this an ideal arrangement – the son had free transportation and the dealer had his shipping needs serviced very inexpensively. However, I pointed out that although the son is not considered a “sho’el” (who is responsible even for accidental damage, as explained above) since the dealer also gains from the arrangement, the son is still responsible for the total value of the car if he acts negligently. (Whether he is responsible to replace the car if it is stolen is dependent upon details that are beyond the scope of this article.)

Needless to say, his parents were rather concerned about their son assuming this level of financial responsibility. I explained that their son should negotiate with the dealer exactly how much responsibility he was accepting.

My wife was once asked to transport a large sum of money on a journey. Although she was doing the other person a complete favor, she would still be responsible for negligence. We told the person that she was assuming no responsibility whatsoever, and he agreed. Since we made this condition, she could not be held responsible no matter what happened.

Similarly, someone who borrows an item may specify to the owner that he is not assuming full responsibility for the borrowed item, and this absolves him if the owner agrees. Of course, the owner may not want to lend the item if the borrower does not assume full responsibility.

DOES THIS ARRANGEMENT NEED TO BE IN WRITING?

No, an oral agreement or understanding between the two parties is perfectly sufficient. The main advantage of a written agreement is to prevent misunderstanding or disagreement about the terms of the agreement.

But one second! Doesn’t the Torah require the sho’el, borrower, to pay for damages? How can the Torah’s instructions be pushed aside?

There is a major difference between the financial rules established by the Torah and its prohibitions. In business arrangements, two parties may create their own terms. Thus, an employer can agree to give his employee benefits beyond what halacha requires and be obligated to provide them. Similarly, when a couple marries, the husband assumes responsibility to support his wife. However, if the two choose to marry without this responsibility, they may do so (Gemara Kiddushin 19b).

However, two parties cannot make a business agreement that violates a Torah prohibition. Therefore, one cannot create a contract that charges interest, ignores the Shmittah time limit for collecting debts or authorizes using non-halachic courts for adjudication. These cases all involve Torah-ordained prohibitions, and therefore cannot be eliminated by a “deal” between the two parties.

WHEN IS A BORROWER NOT RESPONSIBLE FOR DAMAGE?

I mentioned above that there are two circumstances whereby the borrower is absolved from paying for the damage. The Gemara calls these two cases “be’alav imo” literally, “the owner is with him,” and “meisah machmas melacha,” which means “the loaned animal died because of the work.”

The basis of each of these two pturim, absolutions, is totally different and both need to be explained.

BE’ALAV IMO

Be’alav imo means that if the lender was working for the borrower when the pikadon was borrowed, the sho’el is absolved from paying for any subsequent damage. According to the halacha, this applies only if the owner was working when the she’eilah began. However, if the owner began work after the loan was begun, the borrower is fully responsible (Bava Metzia 94a).

This rule sounds very strange. What is its rationale?

We generally divide mitzvos into two categories, bein adam lachaveiro, mitzvos between us and our fellow men, and bein adam laMakom, mitzvos between us and Hashem. We are not surprised when mitzvos bein adam laMakom are beyond our comprehension and based on gezeiras hakasuv, decrees of Hashem in His Torah. For example, we never question why the Torah commanded holding an esrog on Sukkos and not a lemon – we know that the Torah’s mitzvos are beyond our comprehension. Nor do we ask why the flimsy schach on a sukkah must come from plant growth. We understand that these halachos are gezeiras hakasuv.

However when we it comes to bein adam lachaveiro, we expect to understand them. Indeed, most halachos of civil law are very comprehendible and include relatively few halachos based on gezeiras hakasuv. However, there are some exceptions and the rule of be’alav imo is one of them. The Torah states that under these circumstances, the borrower need not pay, even though we cannot comprehend the difference.

Nevertheless, several rationales have been suggested for the law of be’alav imo. In other words, even though it is a gezeiras hakasuv, we can derive certain hashkafic concepts from these laws. However, we must realize that these rationale should not be considered as “reasons” for the mitzvah. After all, do we think that we can comprehend the reasons for Hashem’s mitzvos? As the Sefer HaChinuch explains, the words ta’am hamitzvah should be translated as the taste of a mitzvah, rather than the reason for a mitzvah. This is because we can never explain why Hashem gave us mitzvos. We can only suggest ideas that will help us grow while we observe the mitzvos that Hashem has granted!

Similarly, the ta’amim given to explain be’alav imo should be understood as tastes, ideas that illuminate these halachos.
That being said, we can now present a ta’am suggested for the law of be’alav imo. Some explain that since the owner is being employed by the borrower, the borrower does not assume that he is responsible for the item borrowed. Rather, he assumes that the owner is taking care of his own item (Chinuch, Mitzvah 60). Under these circumstances, the Torah does not require the borrower to pay for damage done to the loaned item.

MEISAH MACHMAS MELACHA

The other occasion when a borrower is absolved from paying is “meisah machmas melacha,” literally, “the loaned animal died because of the work.” This is based on a logical concept that if the borrower had express permission to use the borrowed item for a certain purpose, he should not be penalized for utilizing it for that purpose (Tosafos; Nimukei Yosef).

There is an alternative explanation for meisah machmas melacha that contends that the borrower has the right to assume that a borrowed item can withstand normal wear and tear. If the pikadon did not withstand normal use, then we presume that it was inferior and the borrower is not responsible for the loss (Ramban; Sma 340:3).

A LOANED CAT

The Gemara discusses a strange case of someone who borrowed a cat to rid his house of unwanted mice. A din Torah was called when the mice killed the cat instead and the mash’eil claimed that the borrower must pay him for his loss! The Gemara concludes that the borrower is exempt because there must have been something wrong with a cat that was overpowered by mice (Bava Metzia 97a).

The following case is discussed by poskim. The residents of a threatened town borrowed weapons to defend themselves. They were defeated and the weapons were confiscated. Must they pay for the weapons?

The poskim dispute this issue. Some rule that they are exempt because the items were borrowed specifically for use in self-defense and the loss is categorized as meisah machmas melacha. Others contend that they are obligated to pay since the weapons were not inferior (Sma 340:8 and Shach ad loc.).

I was recently asked a shailah about someone who borrowed a power saw that was damaged during use. Is this considered meisah machmas melacha?

The halachic issue is to determine whether the borrower used the saw in a normal fashion, in which case he would be exempt from paying, or whether he perhaps abused the appliance, in which case he is obligated.

A FEW UNFAMILIAR HALACHOS ABOUT BORROWING

I have discovered that there are several halachos of which even knowledgeable people are unaware.

If I borrowed an item for a specific purpose, may I use it for something else?

In most instances, the answer is no. It is prohibited to use the pikadon for a different job without permission, even for a job that involves less wear and tear than the task for which it was borrowed (Shulchan Aruch, Choshen Mishpat 341:7). Some poskim permit using the pikadon for a job that is clearly less taxing on the tool, but all agree that I may not use it for work that might be equally stressful (Taz 340:1; Sma 341:20).

RETURNING THE BORROWED ITEM

Many people are unaware that a borrowed item is not considered returned until the lender knows about it (Choshen Mishpat 340:8). Therefore, if I borrow a hammer from my neighbor and return it to his house, I have not discharged my obligation until he knows that it has been returned. If it becomes damaged in the interim, I am still responsible to pay!

I borrowed a sefer from someone. When I came to return it, his children told me that the owner had gone on vacation. Consequently, I am responsible for the sefer until he finds out that I have returned it to his house.

BORROWING COLLATERAL

Reuven borrowed money from a non-Jewish bank and placed a valuable painting in the bank’s vault as collateral. Knowing that the painting was worth far more than the loan, Shimon asked Reuven if he could borrow some money from the bank, using the painting as collateral for his loan as well. Both Reuven and the bank agreed. Subsequently, a massive explosion at the bank destroyed the painting. According to secular law, neither Reuven nor Shimon were obligated to pay back the loans since the collateral was not returned. (Incidentally, according to halacha, if the lender was Jewish, he would be obligated to repay the loan since the lender was not at fault for the loss.)

However, Reuven wants Shimon to compensate him for the painting, claiming that Shimon benefited from his loss. Reuven claims that Shimon “borrowed” the painting as collateral, since without it Shimon could not obtain his loan. Therefore, Shimon should have to compensate Reuven since he borrowed an item that he did not return. Does Reuven have any basis for his claim?

According to halacha, Shimon has no responsibility to compensate Reuven. The painting was in the bank’s vault because of Reuven’s loan, not because of Shimon’s (Mordechai, Bava Metzia #371; Rama, Choshen Mishpat 340:1).

However, if Reuven had never borrowed from the bank, but Shimon had used the painting as collateral, Shimon would indeed be responsible for it.

We have touched on some of the halachos involved when borrowing. This certainly indicates how much we have to know in order to observe them correctly. We should always bear in mind that the Gemara advises someone who wants to become a great tzaddik to ensure that he is highly familiar with all the halachos of damages!