Holding the Torah Upright

According to some rishonim, the mitzvah to raise the Torah (hagbahah) is mentioned in parshas Ki Savo.

Question #1: Holy Roller

“I was in a shul, and when they took out the sefer Torah, they opened it and carried it all around the shul, showing everyone with a yad where the beginning of the keri’ah is. I had never seen this before, and was wondering if this is a common practice. Is it mentioned in halachic sources, or does it simply manifest someone’s enthusiasm?”

Question #2: Reversing the Trend

Is there any halachic basis for the custom on Simchas Torah of reversing the sefer Torah so that the writing faces away from the magbiah?

Answer: Needing a Lift

The mitzvah of hagbahah is to raise the sefer Torah and show it, so that everyone in the shul can see the writing of the sefer Torah. The prevalent, but not exclusive, tradition among Ashkenazim is that this mitzvah is performed after each sefer Torah is read, whereas the exclusive practice among edot hamizrach (Jews of Middle Eastern and Sefardic descent) is that this lifting is performed prior to reading from the Torah. Among the edot hamizrach, some open the sefer Torah and lift it up immediately upon removing it from the Aron Kodesh, whereas others first bring the sefer Torah to the shulchan and then perform hagbahah, prior to calling up the kohen for the first aliyah (Ben Ish Chai II, Tolados #16). Some even perform hagbahah both before and after the reading (ibid.; Kaf Hachayim 134:17) As a matter of curiosity, it is interesting to mention that some Chassidim and Perushim in Eretz Yisrael observe the practice of the Sefardim and perform hagbahah before the Torah is read. When following this procedure, the magbiah does not sit down with the sefer Torah after he has completed his job, but places it down on the shulchan from which it is read.

As we will soon see, both customs – performing hagbahah before the reading and performing it after the reading – can be traced back to antiquity.

The earliest description of hagbahah

The earliest extant description of the procedure of hagbahas haTorah is found in Masechta Sofrim, as follows:

“One must raise the sefer Torah when reciting the words Shema Yisrael… and then raise it again upon reciting Echad Elokeinu Gadol Adoneinu Kadosh Shemo… Immediately, [the person performing the mitzvah] opens the sefer Torah to a width of three columns and lifts the sefer Torah — showing the writing to all the people standing to his right and his left. Then he moves the sefer Torah in a circular motion before him and behind him — because it is a mitzvah incumbent on all the men and women to see the text of the sefer Torah, to bow, and to say Vezos HaTorah asher sam Moshe lifnei Bnei Yisrael” (Masechta Sofrim 14:11-14).

What are the sources for the divergent customs?

As noted by the Beis Yosef and the Gra, the Masechta Sofrim describes performing hagbahah before keri’as haTorah. Nevertheless, the venerated practice of the Bnei Ashkenaz is to do hagbahah after we read the Torah (see Darkei Moshe 147:4; the practice is quoted at least as early as the Sefer HaItur, who lived over eight hundred years ago). This custom is based on the Gemara (Megillah 32a) that states, “After ten people read the Torah, the greatest of them should roll up the Torah,” which refers to hagbahah and implies that it is performed after the Torah has been read. Similarly, a different passage of Gemara (Sotah 39b) mentions that the person reading the haftarah should be careful not to begin until the rolling of the Torah is complete. This implies that the hagbahah and subsequent rolling closed of the Torah is performed immediately prior to the haftarah, and not before the Torah is read.

Two places in Shulchan Aruch

This difference in practice resulted in an anomalous situation. Because the Tur was an Ashkenazi, he included the laws of hagbahas haTorah after the reading of the Torah, in Chapter 147 of Orach Chayim. On the other hand, the Shulchan Aruch, who follows Sefardic practice, mentions hagbahas haTorah before the rules of the reading of the Torah in Chapter 134:2, yet he also discusses the laws of hagbahas HaTorah where the Tur placed the halachah in Chapter 147. As a result, the halachos of hagbahas haTorah are located in two different places in Shulchan Aruch, some in Chapter 134, others in Chapter 147, with the laws of keri’as haTorah sandwiched between.

Why do Ashkenazim do hagbahah afterwards?

Logically, it would seem that we should display the text of the sefer Torah prior to reading the Torah, so that people observe the section that is about to be read, as, indeed, the Sefardim do. Why do Ashkenazim delay displaying the words of the Torah until after the reading is concluded?

The authorities present the following basis for what seems to be an anomalous practice: In earlier generations, there were unlettered people who mistakenly assumed that it was more important to see the words of the Torah during the hagbahah than it was to hear the reading of the Torah. As a result, many of these people would leave shul immediately after the hagbahah and miss the reading. Therefore, the practice was introduced to postpone the hagbahah until after the reading was concluded — which now caused these people to stay in shul and hear the reading of the Torah (Shiyarei Keneses Hagedolah 134:2, quoted by Kaf Hachayim 134:17).

Are there any other ramifications to this dispute?

Indeed, there is another interesting ramification that results from the Ashkenazic practice of delaying the hagbahah until after the reading is concluded. Should one notice a pesul in the sefer Torah that does not require taking out another sefer Torah, but precludes reading from this sefer Torah until it is repaired, one should not recite the words Vezos HaTorah and Toras Hashem temimah when being magbiah the sefer Torah (Kaf Hachayim 134:17, quoting Shu’t Adnei Paz #13).

What is the proper way to do hagbahah?

A sefer Torah is written on sections of parchment that are stitched together. The person who is performing hagbahah should make sure that the stitching is in front of him before he lifts the Torah, so that if the sefer Torah tears from the stress of the lifting, the stitching, which is easy to repair, will tear and not, G-d forbid, the parchment itself (Megillah 32a, as explained by the Tur; see esp. Aruch HaShulchan 147:13; cf., however, how Rashi explains the Gemara).

“Reading” the Torah

When the sefer Torah is raised, each person in shul should try to actually read the letters of the sefer Torah. This causes a bright, spiritual light of the Torah to reach him (Arizal, quoted by Magen Avraham 134:3). Some have the practice of looking for a word in the sefer Torah that begins with the same letter as their name (Ben Ish Chai II, Tolados #16). In most Sefardic communities, someone points to the beginning of the day’s reading while the sefer Torah is held aloft for all to see. Some congregations consider this a great honor that is given to the rav or another scholar (Kaf Hachayim 134:13). This may be the origin of the custom that some people have of pointing at the sefer Torah during hagbahah (cf. Yalkut Me’am Lo’ez, Parshas Ki Savo, 27:26).

In order to make sure that everyone sees the text of the sefer Torah, some Sefardic congregations have the magbiah carry the open sefer Torah around the shul to display its holy words to every attendee (Kaf Hachayim 134:13).

In which direction is the Torah held?

The usual Ashkenazic practice is that the magbiah holds the sefer Torah with its writing facing him. Some congregations have the practice that, on Simchas Torah, the sefer Torah is lifted in the reverse way, so that the writing is away from the magbiah. Most people think that this is a “shtick” as part of the Simchas Torah celebration, but this is not halachically accurate.

The Bach (147) contends that the original approach was to hold the sefer Torah with the writing visible to the people — as we do on Simchas Torah. This is because when the magbiah lifts the sefer Torah the way we usually do, his body blocks the view, and for this reason, the Maharam and other great Torah leaders held the Torah with its text away from them when they performed hagbahah. Presumably, the reason this practice was abandoned is because it is much more difficult to do hagbahah this way, and there is concern that someone might, G-d forbid, drop the sefer Torah while doing it. Nevertheless, in places where the custom is to perform hagbahah this way on Simchas Torah, the reason is to show that on this joyous occasion we want to perform hagbahah in the optimal way.

The more the merrier!!

The above-quoted Masechta Sofrim requires that the magbiah open the sefer Torah three columns wide. The authorities dispute whether the magbiah may open the sefer Torah more than three columns. In other words, does Masechta Sofrim mean that one should open the sefer Torah exactly three columns, or does it mean that one should open it at least three columns, so that everyone can see the words of the Torah, but that someone may open it wider, should he choose? The Magen Avraham (134:3) suggests that one should open it exactly three columns, although he provides no reason why one should not open the sefer Torah more, whereas the Mishnah Berurah says that it depends on the strength of the magbiah — implying that if he can open it more, it is even better. It is possible that the Magen Avraham was concerned that opening the sefer Torah wider might cause people to show off their prowess and cause the important mitzvah of hagbahas haTorah to become a source of inappropriate pride — the exact opposite of the humility people should have when performing mitzvos.

Lift and roll!?

Most people who perform the mitzvah of hagbahah roll open the sefer Torah to the requisite width and then lift it, whereas others unroll it while they are lifting it. Which of these approaches is preferred?

The Shaar Efrayim discusses this issue, and implies that there is no preference between the two approaches, whereas the standard wording of Masechta Sofrim is that one should unroll the sefer Torah first.

Reciting Vezos HaTorah

When the sefer Torah is elevated, everyone should bow and recite the pasuk Vezos HaTorah asher sam Moshe lifnei Bnei Yisrael (Masechta Sofrim 14:14). Indeed, the Chida cites sources who hold that since Chazal mention saying Vezos HaTorah, it has the status of a davar shebekedushah and can be said even if one is in the middle of birchos keri’as shema (Kenesses Hagedolah, quoted by Birkei Yosef 134:4). Subsequently, the Chida wrote a lengthy responsum in which he concluded that reciting Vezos HaTorah does not have the status of a davar shebekedushah, and therefore should not be said in a place where it interrupts one’s davening (Shu’t Chayim She’al 1:68).

Vezos HaTorah should be said only while facing the words of the sefer Torah (Be’er Heiteiv 134:6, quoting several earlier sources). If one began reciting Vezos HaTorah while facing the writing of the sefer Torah, one may complete the pasuk after the text of the sefer Torah has been rotated away from one’s view (Shaar Efrayim).

In many siddurim, after the sentence Vezos HaTorah asher sam Moshe lifnei Bnei Yisrael, five words are added: Al pi Hashem beyad Moshe (Bamidbar 9:23), as if this is the continuation of the verse. Many halachic authorities question adding the words Al pi Hashem beyad Moshe, since these words are from a different passage of the Torah (Aruch Hashulchan 134:3). Others are concerned for a different reason, because these last five words are not an entire verse and they question the practice of reciting partial verses of the Torah. Indeed, many old siddurim do not quote this addition, and many halachic authorities contend that one should not recite it.

Who should be honored with hagbahah?

The Gemara (Megillah 32a) states “Ten people who read the Torah, the greatest of them should roll the Torah,” which refers to the mitzvah of hagbahah, since the magbiah rolls the Torah both prior to displaying it, and when he closes it, afterwards. The Baal HaItur quotes two opinions as to whom the “ten people” refers. Does it mean the attendees of the current minyan, and that the greatest of this group should be the one who is honored with the mitzvah of lifting and displaying the Torah? Or, does it means according the honor of lifting and displaying the Torah to the greatest of the ten people who were involved in that day’s reading (the seven who had aliyos, the maftir, the baal keriyah, and the person who recited the Targum after each pasuk was read, which was standard procedure at the time of the Gemara).

The halachic authorities rule according to the first approach, that one should honor the greatest person in the shul (Gra; Mishnah Berurah 147:6). They also refer to another practice, which was to auction off the mitzvah of hagbahah to the highest bidder (Tur; Shulchan Aruch). However, where the hagbahah is not auctioned, one should provide the honor to the greatest Torah scholar in attendance (Machatzis Hashekel). The prevalent practice of not necessarily offering hagbahah to the greatest scholar is in order to avoid any machlokes (Shaar Efrayim; Mishnah Berurah). Nevertheless, in a situation where no machlokes will develop, one should certainly accord the mitzvah to the greatest talmid chacham who can properly perform hagbahah. Whatever the situation may be, the gabbai is responsible to give hagbahah only to someone who is both knowledgeable and capable of performing the mitzvah properly.

The importance of performing hagbahah correctly

The Ramban, in his commentary on the verse, Cursed be he who does not uphold the words of this Torah (Devarim 27:26), explains that this curse includes someone who, when performing hagbahah, does not raise the sefer Torah in a way that everyone in the shul can see it properly. Apparently, there were places that did not perform the mitzvah of hagbahah at all out of concern that someone will be cursed for not performing hagbahah properly (Birkei Yosef, Shiyurei Brachah 134:2; Kaf Hachayim 134:15; Encyclopedia Talmudis, quoting Orchos Chayim). Although I certainly do not advocate eliminating the mitzvah of hagbahah, a person who knows that he cannot perform the mitzvah correctly should defer the honor, and the gabbai should offer the honor only to someone who fulfills the mitzvah properly.

What Is a Temurah?

Question: Two Temurahs

“Why does the Torah mention the mitzvah of temurah twice at the end of this week’s parshah, once at the beginning of Chapter 27 and again at its end?”

Answer:

The concept of offering korbanos is foreign to us, since, unfortunately, our Beis Hamikdash still remains in ruin and we are neither required nor permitted to offer korbanos anywhere else. Precisely because this topic is so unfamiliar, we should utilize every opportunity to familiarize ourselves with these laws. There are numerous reasons that underscore the importance of this topic, including:

(1) When our Beis Hamikdash is rebuilt — may it be speedily in our days — we will have to know all the laws about offering korbanos.

(2) It is part of the Torah we are required to know, and will also help us better understand this week’s Torah reading.

(3) There is a concept of uneshalmah parim sefaseinu (Hoshea 14:3), that when we are unable to offer korbanos, our reading and studying these Torah sections fulfills our requirement to offer the korbanos.

(4) There are some very important and little known laws that affect us today. We will soon study them.

What is temurah?

Towards the end of this week’s parsha, the Torah mentions a very unusual halacha called temurah. Someone who had consecrated an animal to be his korban subsequently changes his mind and decides to substitute a different animal for the korban. By doing so, he violates the Torah’s prohibition of lo yachalifenu velo yamir oso, “do not exchange it and do not substitute in its stead.” The Torah teaches that as a result of his declaration, both animals now have the sanctity of that korban (Vayikra 27:10). This means that the declaration succeeded in creating sanctity on the new animal, but failed to remove the sanctity from the original animal. Now, use of either animal for personal benefit is prohibited min haTorahhaTorah. The animal that attained sanctity because of the second declaration is itself called a temurah (pl., temuros), so the word temurah refers both to the prohibited act and to the animal that is now affected by that act.

What happens to the animal?

What ultimately happens to an animal that has just become a temurah?

Each of the several types of korbanos has specific details as to how it is offered. Consequently, although every temurah animal has sanctity, its status will be determined by the specific korban for which it was dedicated.

Shelamim

One of the most common types of consecrated korbanos is the shelamim, whose name comes from the word shalom, peace. Rashi (Vayikra 3:1) explains two approaches for its name:

(2)   The purpose of a shelamim is to bring peace to the world.

(2) The meat of a korban shelamim is divided: most of it is eaten by the owner in Yerushalayim. He may share it with any tahor person he chooses. A portion of the shelamim, the breast meats and the right thigh, is given to the kohen to eat in Yerushalayim and share with whomever he desires. The mizbei’ach (the altar) receives much of the fat of the animal, the kidneys, its diaphragm meat (which butchers often call the “skirt steak”), and a small part of the liver. Thus, “everyone” is made happy by this korban, and it brings peace to the world.

No gender discrimination

Shelamim is unique among the commonly consecrated korbanos in that one may offer an animal of either gender of any of the three types of kosher beheimah (domesticated animal – bovines, sheep or goats) and that there is no age restriction once the animal is seven days old. Of the other three main types of common consecrated korbanos, chatas must be female, whereas both olah and asham must be male. Both chatas and asham have other requirements as far as species, and asham has specific age requirements.

Temuras shelamim

Now that we understand some of the basics of shelamim, our question is what happens to a temuras shelamim. This is the subject of a dispute in the Mishnah (Temurah 17b, 18a), but the halachic conclusion is that a temuras shelamim is treated just as a shelamim. It is offered as a korban and its meat is then divided: part eaten by the kohen and his family, a small part burnt on the mizbei’ach and the majority eaten by its owner.

Temuras olah

The other very common type of consecrated korban is the olah, which is completely burnt on the mizbei’ach. In the case of olah, both the original korban and its temurah are offered in the Beis Hamikdash, with all the details of the appropriate halachos observed. In this way, a temuras olah is treated similarly to temuras shelamim.

There is, however, one case when this cannot be done, which is when the temuras olah is a female animal. Since an olah must be male, the female temurah cannot be offered. This creates a very interesting predicament, since the female now has the sanctity of an olah, yet it cannot be offered as such because of its gender.

To resolve this difficulty, the temurah is sent out to pasture temporarily. The plan is that, left to her own devices, she will eventually develop a blemish that invalidates her as a korban. This requires a bit of explanation:

The Torah requires that all animals offered in the Beis Hamikdash be unblemished. There is an extensive list of physical shortcomings that invalidate an animal from being offered as a korban. For example, an animal whose legs are of uneven length is invalid as a korban, even though the animal is otherwise perfectly healthy. Also, an animal that shows evidence of damage, such as a split lip, is invalid as a korban. A blemish is called a moom, and an animal bearing such a blemish is called a baal moom.

In the case of most korbanos, a consecrated animal that has become blemished is redeemed with the redemption money used to purchase a replacement korban. After the baal moom korban is redeemed, it may be slaughtered and eaten, but one may not work it.

This is what happens to a female temuras olah. She is sent out to pasture with the hope that she will eventually develop a moom that will invalidate her as a korban. When that happens, she will be redeemed, the redemption money being used to purchase a new korban olah.

It is prohibited min haTorah to blemish a korban intentionally (Rambam, Hilchos Issurei Mizbei’ach 1:7); however, one may release the animal to the pasture in the hope that it figures out how to do so on its own.

Temuras chatas

There are other instances when one cannot offer the temurah animal in the Beis Hamikdash. For example, both chatas and asham korbanos are offered to atone for specific sins. If someone creates a temurah of either a chatas or an asham, the temurah has sanctity that will preclude its being used any more by the owner, although it will be invalid for offering in the Beis Hamikdash. Exactly what one does with these animals is discussed by the Gemara and the rishonim, but includes too many details to discuss in this article.

Bechor

The temurah of another korban, bechor, has yet a third status. A bechor is a firstborn male animal of a kosher species whose mother is fully owned by a Jew or by Jews. An unblemished firstborn male was given to a kohen who brought it as an offering in the Beis Hamikdash. Its meat was eaten by the kohen and his family anywhere in Yerushalayim when they were tahor, and the kohen was able to share it with any tahor person, similar to the laws of a shelamim.

If the bechor is blemished, the halachah is unlike other korbanos, where the blemished animal is redeemed with redemption money that is used to purchase a replacement korban. The owner of a blemished bechor gives the animal to a kohen, who now owns it as his personal property, although he is still forbidden to work the animal and may use it only to slaughter for meat. It is one of the matanos kehunah, the gifts provided to the kohen, so that he can devote himself to his responsibilities as a teacher of the Jewish People. Should the kohen choose to, he may sell it to someone else. There are some other specific laws regarding where it may be slaughtered and how it may be sold, but it may be eaten by anyone, even a person who is tamei.

Temurah of bechor

We have now seen that the korban of bechor is unusual, in that a blemished bechor loses some of its sanctity as a korban and as a result is slaughtered and eaten. The temurah of a bechor, therefore, also has halachic status different from other temuros. The owner gives the temuras bechor to a kohen, who sends the animal to pasture until it develops a blemish, at which point he may slaughter it and consume it (Mishnah Temurah 21a).

Temuras maaser

When the Beis Hamikdash stood, every farmer was required to gather all his newborn kosher animals three times a year and send them though the opening of a pen, one at a time. The farmer counted each animal aloud, and marked each tenth animal exiting the pen with a red mark (Mishnah Bechoros, Chapter 9). This tenth animal has the halachic status of maaser, which is a type of korban. One could not work this animal. Instead, the owner was required to bring it to the Beis Hamikdash, where it was offered as a korban. The owner received most of the meat of this korban, which he was required to eat in Yerushalayim.

This korban shares many halachos with the bechor mentioned above. For example, just as a blemished bechor is not redeemed but is slaughtered and eaten, so too, a blemished maaser is slaughtered and eaten.

There is a difference between the bechor and the maaser in that the owner is required to give the bechor to a kohen, whereas the maaser he keeps for himself.

There is a similarity between the temurah of bechor and that of maaser in that the temurah is not offered, although it, also, may not be worked, but one waits until it develops a blemish, at which point it can be slaughtered and eaten. In the case of maaser, the owner keeps the animal which he may now eat.

With this information, we can answer the question we asked at the beginning of this article:

“Why does the Torah mention the mitzvah of temurah twice at the end of this week’s parshah, once at the beginning of Chapter 27 and again at its end?”

Checking the two pesukim, one will see clearly that the first verse (Vayikra 27:10) is addressing temurah of most korbanos, whereas the second verse (Vayikra 27:33) is addressing the temurah of a maaser animal. As Rashi explains on the latter verse, the halachah of temurah for maaser is different from that of other korbanos, which are usually either offered as a korban or redeemed. Whereas the temurah of a maaser has the sanctity of a korban, this only prohibits working the animal. One awaits its developing a blemish, and then slaughters it for its meat.

Who can make temurah?

A person cannot create a temurah unless he is the owner of a korban. This means that if Jerry walks down the street one day and decides that he wants to substitute a different animal for Yosef’s korban, no temurah has happened. Yosef has to make the temurah for his own korban, or, alternatively, authorize someone to make temurah on his korban.

Who is the “owner” of a korban?

Technically, the person who creates the temurah does not have to be the person who originally declared the animal to be a korban, although temurah can be declared only with the authority of the “owner” of the korban, meaning the person who is to benefit from its offering. If one person declared an animal to be a korban for the benefit of another, it is the beneficiary of the korban who is considered its “owner,” not the donor. Therefore, if the beneficiary of the korban subsequently decided to substitute a different animal, he will violate temurah and both animals will become sanctified, whereas if the donor did so, he did not violate temurah, and only the original animal has the sanctity of the korban. In the latter case, the replacement animal has no sanctity at all and can be worked with or used as one chooses.

Temurah on birds?

The laws of temurah apply only to animal korbanos and not to korbanos of birds or of flour (Mishnah Temurah 13a). Therefore, if someone who has turtledoves set aside for his offerings decided to substitute something, whether a bird, an animal or anything else for the turtledoves, he has not violated the prohibition of creating temurah. Since the declaration was totally ineffective, the original turtledoves will be offered and the substitute bird or animal has no sanctity whatsoever.

Unusual temurah laws

There are several curious aspects to the laws of temurah and sanctifying offerings. One can create a temurah only when the original offering is owned by an individual, but not when it is a communal offering (korban tzibur) or even when it is a korban owned by two or more partners (Mishnah Temurah 13a). Notwithstanding the fact that one cannot make such a temurah, the Rambam (Hilchos Temurah 1:1) rules that one who attempts to substitute an animal for a communal korban violates the Torah’s prohibition and incurs the punishment of malkus. Nevertheless, since the temurah is completely ineffective, the new animal has no sanctity whatsoever. (The original animal is also, of course, not affected, and it is offered as the korban for which it was intended.)

Multiple temurah

Someone can even create several temurah animals at the same time. For example, if the owner tried to remove the sanctity of the original animal by substituting two or more animals in its place, all the new animals become consecrated as korbanos, and the original animal still retains its korban status (Mishnah Temurah 9a).

Negligent temurah

One of the interesting laws of temurah is that someone can create temurah even though he did not intentionally violate the Torah’s prohibition (Temurah 17a; Rambam, Hilchos Temurah 1:2; Tosafos, Temurah 2a s.v. Ha). For example, someone who did not realize that temurah is prohibited will still make the new animal holy.

Minor temurah

Here is another unusual aspect to the laws of Temurah. The Gemara teaches that, under certain circumstances, an eleven-year-old girl or a twelve-year-old boy can declare an animal to have the sanctity of a korban, provided that he or she is the owner of the animal (Temurah 2b). This is true even though they are halachically minors and not obligated to observe mitzvos.

The Gemara (2b) discusses whether a minor who can consecrate a korban can also create a temurah. This is highly surprising; if a minor cannot violate the prohibition of creating temurah because he is not responsible to keep mitzvos, one would think that he cannot create a temurah either. Evidently, the creation of a temurah is not dependent on violating the prohibition of temurah.

Conclusion

Do we live with a burning desire to see the Beis Hamikdash rebuilt speedily in our days? Studying the halachos of the korbanos should help us develop our sensitivity and desire to see the Beis Hamikdash again in all its glory. May we soon merit seeing the kohanim offering all the korbanos in the Beis Hamikdash in purity and sanctity, and Klal Yisrael in our rightful place in Eretz Yisrael as a light unto the nations!

The Bankrupt Borrower

This week’s parsha, Behar, includes details about being honest in our business dealings. Is declaring bankruptcy to absolve one of one’s debts, considered honest according to halachah?

The Bankrupt Borrower

Mr. Gomel Chessed shares with his rav, Rav Chacham, the following predicament: “I loaned someone money, and I did not hassle him for payment when he told me that things were tough. Recently, I contacted him to ask if he is in any position to pay back. He replied that he was forced into bankruptcy and thereby absolved all his debts. Does he, indeed, no longer owe me for the loan?”

Gomel’s rav explains that although the Gemara and the Shulchan Aruch do not recognize a concept called bankruptcy, there are authorities who contend that, at least in some circumstances, halachah requires that a bankruptcy court’s decision be honored. Gomel is eager to hear the full explanation, so his rav provides him with some background material to read until they make an appointment to discuss the matter at length.

Gomel truly enjoyed researching the topic, and discovered that he also wanted to know all the related subjects. As a result, he became somewhat of an expert on much of the halachic material germane to his question.

Responsibilities of a Borrower

One of the first topics Gomel researched was the extent that a borrower must go to pay his debts. He was surprised to discover how strongly halachah requires someone to repay his debts and to make his payments on time. In addition, it is strictly forbidden to claim that one is unable to pay a debt when he can, and it is similarly forbidden to hide money so that a creditor cannot collect. This is true even if the creditor is very wealthy.

It is forbidden to borrow money that one does not think he will be able to repay. According to some authorities, money borrowed under the false pretense that the borrower intends to repay it is considered stolen, and not borrowed, funds. The halachic ramifications of this distinction are beyond the scope of this article.

If a debtor’s loan is due and he cannot pay, halachah requires that he sell his house, his furniture and his other household items, if necessary, to repay the debt, unless he can convince his creditor to forgive the debt or to wait longer for payment (Graz, Hilchos Halvaah 1:5).

Since the debtor must use whatever money he has available to pay his debt, he is required to trim his expenditures so that he can pay his creditor. Until his debt is repaid, he may not make significant contributions to tzedakah (Sefer Chassidim #454). Furthermore, he may not purchase a lulav and esrog, but instead must fulfill the mitzvah by borrowing from someone else (see Pischei Teshuvah, Choshen Mishpat 97:8). It goes without saying that luxuries and vacations are out. Someone who uses his money to purchase non-essential items when he has an overdue debt demonstrates a lack of understanding of the Torah’s priorities. One who squanders money and therefore is unable to repay his loans is called a rosho (Rambam, Hilchos Malveh 1:3).

Systematic Collection

Having researched how responsible a debtor must be, Gomel next studied the following topic: If a debtor unfortunately owes more money than he can pay, how does the halachah decide that we divide the debtor’s limited financial resources among his creditors?

Gomel discovered that the halachos governing who collects first are highly complicated. He also discovered that, when there are insufficient financial resources to pay all of the person’s debts, halachah views the priorities of who receives, and how much, very differently from civil law. Here are some basic ideas.

The Gemara works with a concept called shibud by which most debts are automatically secured with property that the debtor owned at the time he created the obligation. When this system was followed, if a debtor defaulted on an obligation, a creditor who exhausted all means of collecting directly from the debtor’s holdings could collect these secured debts from real properties that the debtor once owned and had subsequently sold. The system in place allowed that potential purchasers could find out whether a property had a lien on it prior to purchasing it. (This would loosely parallel what we call today a “title search” performed before purchasing property to ascertain that the property is without any liens and that the seller has clear ownership.) The potential lien on all the properties of a debtor encouraged people to pay their debts so that they could sell their properties more easily, and also enabled people to borrow investment capital.

Who Collects First?

Under the Gemara’s shibud system, when there are two or more claims on a property whose value is less than the outstanding debt, the creditor with the earliest claim collects as much as he can, and, after his claim is paid, the creditor with the next earliest claim collects, and so on (Shulchan Aruch, Choshen Mishpat 104:1).

When Gomel asked contemporary halachic authorities if this system is used today, he was told that one would not be able to collect from such properties unless they were mortgaged.

Why did the halachah change?

Since today no one applies the system of the Gemara, the creditor did not expect to be able to collect from any properties after the debtor sells them. As a result, the creditor did not acquire shibud on any of the debtor’s properties (Shu’t Igros Moshe, Choshen Mishpat 2:62).

Bad Talmudic Debts

When there is no shibud claim on any properties, then, under the Gemara’s system, the outstanding creditors collect, but not proportional to the amount that each is owed. According to most authorities, we still follow whose claim is earliest. Others rule that everyone is paid equally according to the availability of resources (Shulchan Aruch, Choshen Mishpat 104:13 and Sma). Either approach results in a major difference between the Gemara’s system and the modern approach. Under the modern approach, the court calculates what is the ratio of the available resources to the debt, and pays all creditors a percentage of the debt based on the result.

By now, Gomel has studied much of the Gemara and commentaries on the topic of debt collection, and he has a good idea how bad debt was collected in the time of the Gemara. After reviewing his studies with Rav Chacham, Gomel is ready to understand how and if bankruptcy fits into a halachic system. He soon discovers that he now needs to master a very complicated concept of halachah called dina demalchusa dina.

Dina Demalchusa Dina

In the time of the Gemara, most countries and governments were kingdoms. This meant that the people living in an area recognized one individual to be responsible to maintain law and order within the country and to protect the citizenry from external enemies and greedy neighbors. Without a government, people are in constant danger from the chaos that occurs when there is no respect for a central authority. To quote the Mishnah in Pirkei Avos (3:2), “Pray for the peace of the kingdom, for if people are not afraid of it, one man will swallow another alive.” Anyone who has ever seen or read of the mass looting that transpires when there is a breakdown of authority knows exactly what this means.

The king or government requires an army to protect the country from its external enemies, a police force to uphold law and order, and royal palaces and government offices that are well maintained so that the king’s authority is respected. All this requires funding, and the people realize that they need to pay taxes so that the king and/or government can protect them (see Rashbam, Bava Basra 54b s.v. VeHa’amar). The halachah of dina demalchusa dina recognizes that the king and his properly appointed agents have the right to collect taxes (Nedarim 28a).

Din Melech

When the tribes of Israel approached their prophet, Shmuel, requesting that he appoint a king, Shmuel attempted to dissuade them by noting the tremendous power that a king has. He will draft the most talented sons to till his fields, harvest his crops and perform other services; he will draft their daughters as perfumers, bakers and cooks; and he will raise high taxes (Shmuel I 8:11-18). The Gemara (Sanhedrin 20a) cites a dispute as to whether a Jewish monarch has the extensive authority that Shmuel describes or if Shmuel was simply threatening the people in an attempt to dissuade them from having a king. The Rambam (Hilchos Melachim 4:1) and most authorities rule that the king indeed does have this authority.

Some poskim understand that a non-Jewish king, also, draws his authority based on this concept of din melech. That is, the Torah reserved the rights described by the prophet Shmuel for any monarch. (Even for those who contend that Shmuel was merely threatening the people and that the king does not have this extensive authority, the concept of dina demalchusa dina is still accepted; they simply do not consider the din melech of Shmuel to be the source of the law of dina demalchusa dina.)

Democratic Taxes

Although the early authorities discuss dina demalchusa dina primarily in terms of the rights of a king, most later authorities understand that this halachic power exists equally in a democracy (see Shu’t Yechaveh Daas 5:63).

Gomel discovered that the vast majority of halachic authorities regard dina demalchusa dina as a Torah-mandated concept (see Shu’t Dvar Avraham 1:1; Avnei Meluim 28:2; Shu’t Chasam Sofer, Yoreh Deah #314), although there is a minority opinion that contends that dina demalchusa dina was introduced by Chazal (Beis Shemuel, 28:3).

Many authorities rule that a king may not arbitrarily create new taxes; he may only collect that which has been previously established (Ritva, Nedarim 28a; see lengthy list in Encyclopedia Talmudis, Volume 7, page 318, footnote 559). Why is this true? When people appointed the original king to protect them, they accepted certain taxes with which to pay him for his “services.” According to these rishonim, neither this king nor his successors have an arbitrary right to create new taxes or increase taxes without the consent of the governed.

Traffic and Safety Regulations

Thus far, we have seen that dina demalchusa dina governs the right of the king or the government to collect taxes. Dina demalchusa dina also requires obeying rules of the government, such as the prohibitions against smuggling and counterfeiting. However, dina demalchusa dina goes much further. Some authorities maintain that dina demalchusa dina requires everyone to obey government-created rules that are clearly for the common good (Ramban, Bava Basra 55a). One may argue that this includes traffic laws, and regulations governing sanitation, safety and health. Those who do not agree that dina demalchusa dina extends this far feel that dina demalchusa dina is limited to matters that more directly affect the government (see Maggid Mishnah, Hilchos Malveh 27:1). All opinions agree that dina demalchusa dina applies to matters which breach the authority of the governing parties (Igros Moshe op. cit.). The exact extent to which this is applied practically will affect Gomel’s original question, whether dina demalchusa dina applies to bankruptcy law.

No Government Influence

What areas of halachah are not subject to dina demalchusa dina?

Dina demalchusa dina does not replace the civil laws of the Torah (the laws of Choshen Mishpat) that govern the relationships between Jews (Shu’t Harashba 3:109, quoted by Beis Yosef, Choshen Mishpat end of Chapter 26; Shach, Choshen Mishpat 73:39). For example, dina demalchusa dina does not affect the laws of inheritance. These laws are governed by the Torah’s laws of yerushah.

Similarly, the laws of damages (nezakin), the laws of shomrim – responsibility for taking care of someone else’s property – and the property laws involved in  marriage are all areas of halachah in which Jews are required to follow the laws of the Torah. Therefore, when a Jew lends an item to another, the laws governing his responsibility are those of the Torah, not the local civil code. This is because it is no infringement on the government’s authority when people make their own arrangements as to how to manage these areas of their lives (Igros Moshe).

Government Influence

On the other hand, there are certain areas of contract law that are heavily influenced by dina demalchusa dina. For example, the laws of employee relations are governed by local custom (Yerushalmi, Bava Metzia 7:1), and these are usually heavily influenced by civil law.

What about Bankruptcy?

As I wrote above, the Gemara and the Shulchan Aruch do not mention any concept of bankruptcy. Gomel began to research if anyone discusses whether or not halachah recognizes the laws of bankruptcy under the laws of dina demalchusa dina. Indeed, he discovered a dispute among great authorities of the late twentieth century whether dina demalchusa dina applies to the laws of bankruptcy. In a responsum, Rav Moshe Feinstein rules

that dina demalchusa dina applies only to matters in which the government takes an interest because they may affect the stability of the country. For example, if the country does not have consistent markets, this could create problems that the government wants to avoid. Therefore, the government has a halachic right under dina demalchusa dina to insist that its laws insuring stable markets are followed.

Rav Moshe concludes that the laws of bankruptcy are within the parameters of dina demalchusa dina, since the government has a right to insist that there be a consistent rule of law applied throughout the country regarding how bad debts are discharged.

In the case brought before Rav Moshe, a company had gone bankrupt, and the directors had paid one of its creditors for his outstanding debt in violation of the bankruptcy rulings. The question was whether the individual was required to return the money that he had been paid because of dina demalchusa dina. Rav Moshe ruled that if the company had already filed for bankruptcy when this money was paid, then the creditor is halachically required to return the money. This is because dina demalchusa dina establishes the regulations how one may pay once one has filed for bankruptcy.

We find responsa from two prominent European authorities, Rav Yitzchak Weiss (Shu’t Minchas Yitzchak 3:134), then the av beis din of Manchester (and later the Gaon Av Beis Din of the Eidah HaChareidis in Yerushalayim), and from Rav Yaakov Breisch of Zurich, Switzerland (Shu’t Chelkas Yaakov 3:160). (It is interesting to note that these two great poskim were mechutanim.) From the limited description of the cases that each responsum contains, it seems that they were asked concerning the same situation:

Reuven advanced Shimon a personal loan, and Shimon subsequently declared bankruptcy. As required by law, Shimon had notified all his creditors, Reuven included, that he had filed for bankruptcy protection and that Reuven had the right to protest the bankruptcy arrangements. Reuven did not protest the bankruptcy proceedings, which ultimately ruled that Shimon was required to pay only thirty cents per dollar owed to his creditors.

Subsequently, Reuven sued Shimon in beis din for the entire loan. Shimon contended that he is not required to pay Reuven any more than the thirty cents to the dollar that the bankruptcy court ruled that he was required to pay. Reuven, the creditor, claimed that he had never forgiven any part of the loan. He claimed that he did not protest the bankruptcy proceedings for several reasons, among them that he was unaware that a personal loan which was not meant for profit is included in bankruptcy proceedings.

The rav who was asked the shaylah referred it to these well-known poskim. They both contend that dina demalchusa dina does not apply to bankruptcy procedures. In their opinion, dina demalchusa dina never supplants an area of halachah where the Torah provides its own guidelines.

They do agree that if there was evidence that Reuven had accepted the court’s ruling, he would no longer be entitled to full payment, because he had been mocheil, forgiven, the balance of the loan. Once someone is mocheil a loan or part of a loan, he cannot afterwards claim it. However, they contend that in the situation at hand, there is no evidence that Reuven was ever mocheil the balance of the loan.

It would seem from Rav Moshe Feinstein’s responsum that he would have ruled differently and contended that once the court declared Shimon bankrupt, Reuven would have been obligated to honor the court’s decision because of dina demalchusa dina.

At this point, Gomel sat down to discuss with Rav Chacham whether his own debtor can claim protection from the balance of his loan because he has declared bankruptcy. According to the Chelkas Yaakov, the Minchas Yitzchak, and other authorities, the debtor has no basis for claiming bankruptcy protection. According to Rav Moshe Feinstein, one would have to check with an attorney whether the debtor’s bankruptcy protects him legally from Gomel’s loan even though Gomel was not informed of the bankruptcy proceedings. Assuming that the bankruptcy proceedings can, indeed, protect the debtor, it would seem that, according to Rav Moshe and some other authorities, the debtor has grounds to his argument.

Conclusion

Lending money is a valuable mitzvah. When someone fulfills the mitzvah of lending money to a fellow Jew, he is not providing a gift, but a loan that he has a right to expect will be repaid. As the Tanna, Rabbi Shimon, notes in the second chapter of Pirkei Avos, “the evil path from which a person should distance himself” can be explained easily in the words of Dovid Hamelech: The wicked borrow and do not repay; whereas the righteous is gracious in his giving. Someone who borrows must always have a plan how he intends to return the funds.

An Eruv Primer

This week’s parsha includes one of the major sources for prohibiting carrying on Shabbos, which provides a good opportunity to study some of the complicated halachos of carrying on Shabbos and the halachos of Eruvin. We cannot do justice to this vast and complicated topic in one short article. However, I will attempt to provide an introduction to some of the issues involved.

The Torah prohibits carrying from an enclosed area, called a “reshus hayachid,” to a public, non-enclosed area, a “reshus harabim,” or vice versa. It also prohibits carrying something for a distance of four amos (about seven feet) or more inside a reshus harabim. For our purposes, we will loosely define reshus hayachid as an area completely enclosed by walls, doors, or a combination of both, and a reshus harabim as an unenclosed area at least sixteen amos wide (about twenty-eight feet) meant for public use or thoroughfare. Many additional technical details define a reshus hayachid and a reshus harabim, some of which will be discussed later in this article.

A non-enclosed area that does not qualify as a reshus harabim is categorized as a “karmelis.” According to Torah law, one may carry inside, into and from a karmelis. However, Chazal ruled that a karmelis must be treated with the stringencies of both a reshus hayachid and a reshus harabim. This means that under most circumstances it is forbidden to carry inside, into, or from any area that is not completely enclosed. This is the way we are familiar with observing Shabbos – one does not carry in any unenclosed area. (I will later point out a significant halachic difference between a reshus harabim and a karmelis.)

Chazal also forbade carrying from one reshus hayachid to another when they are not owned by the same person. Thus, I may not carry on Shabbos from my house to my neighbor’s, even if both properties are completely enclosed. If both areas are owned by the same person, I may carry from one house to the other, as long as I don’t pass through an unenclosed area or an area owned by someone else. I may carry from my house to my neighbor’s if we make an “eruv” which allows the two areas to be treated as if they have common ownership.

BUT I THOUGHT “ERUV” REFERS TO A PHYSICAL STRUCTURE?

The word eruv refers to several different conventions instituted by Chazal. We just mentioned the “eruv chatzeiros” that permits carrying between different areas that are enclosed but have separate ownerships. We create this eruv by making the property owners partners in a loaf of bread or a box of matzohs, which for these purposes is sufficient to consider the properties jointly owned. Once this eruv chatzeiros is made, one may carry from one residence within the eruv to another, since the eruv gives them common ownership. Common practice is to make the eruv with matzohs since they last a long time. Custom is to renew the eruv every Erev Pesach so that it is not forgotten.

One must make sure that the matzohs remain edible. I know of instances where the eruv was forgotten about and long afterwards it was discovered that the matzohs were no longer edible. Who knows how long people were carrying in a prohibited way because no one had bothered to check the matzohs!

WHAT IF THE AREA IS NOT ENCLOSED?

Our discussion until now has been dealing with an area that is already fully enclosed. However, someone interested in carrying in an area that is not fully enclosed must close in the area before making an eruv chatzeiros. The most common usage of the word eruv is in reference to this enclosure.

HOW DOES ONE ENCLOSE AN AREA?

The area must be completely enclosed by halachically acceptable “walls” and “doors.” Walls, buildings, fences, hills, and cliffs can all be used to enclose an area. However, when using structures and land features that already exist, invariably there will still be gaps between the structures that must be filled in to complete the enclosure.

The most common method to bridge the gaps is to make a “tzuras hapesach.” A tzuras hapesach vaguely resembles a doorway, consisting of two sideposts and a lintel that passes over them, which are the basic components of a doorway. According to halacha, a tzuras hapesach is considered a bona fide enclosure. Thus, if all gaps between the existing “walls” are “closed” with tzuros hapesach, the area is regarded as fully enclosed.

Some opinions allow small gaps to remain within the eruv’s perimeter without a tzuras hapesach. Many eruvin in North America rely upon this leniency, whereas in Eretz Yisrael the accepted practice is not to.

A COMMON PROBLEM

The halacha is that a planted field the size of 5000 square amos (approximately 14,000 square feet) within an enclosed area invalidates the ability to carry within the eruv. Similarly, an area of this size that is so overgrown that one would not walk through it will invalidate an eruv. This is a very common problem that is often overlooked. Although every responsible eruv has mashgichim to check the perimeters of the eruv, there is also a need to check periodically within the eruv to see that no large areas are being planted or have become this overgrown. I know of numerous instances where, unfortunately, this problem existed for a while before it was detected.

OTHER DETAILS OF TZURAS HAPESACH

There are myriad details of how to make a tzuras hapesach, far more than can be detailed here. For example, most authorities accept the use of a wire for the lintel of a tzuras hapesach, although many opinions require it to be extremely taut (see Mishnah Berurah 362:66 and Shaar Hatziyun). Most eruvin use telephone wires as the “lintel” of the tzuras hapesach, although there are poskim who prohibit them (see Shu’t Yeshuos Malko, Orach Chaim #20). When telephone wires are used, posts or boards are placed directly below existing telephone wires, with care taken that the wire passes directly over the post. The lintel must pass directly above the sideposts, although the posts are not required to be tall enough to reach the “lintel” (Eruvin 11b). For example, if the wire used as lintel is twenty feet high and the side posts are only four feet tall, this is perfectly legitimate as long as the wire passes directly above the sideposts and that nothing intervenes between them. To guarantee that the wire remains above the posts, it is a good idea to use fairly wide “posts” and to periodically check that the wire is still directly above the posts. From personal experience I can tell you that as the posts or the telephone polls settle it is not unusual that they shift so that the post is no longer under the wire. This is also something that eruv mashgichim must periodically check but, unfortunately, often do not.

The tzuras hapesach is invalid if something intervenes in the gap between the top post and the side post. Thus, it is invalid to rest a side post against the side of a house and attach the top post to its roof, if any overhang of the roof extends below the lintel and above the side post. Similarly, the eruv is invalid if a sign intervenes between the sidepost and the wire being used as lintel.

I mentioned above that there is a major difference in halacha between a reshus harabim and a karmelis. A tzuras hapesach can only be used to enclose an area that is a karmelis where the prohibition against carrying is only rabbinic. It cannot be used to permit carrying in a reshus harabim where it is forbidden to carry min haTorah (Shulchan Aruch, Orach Chayim 364:2).

This leads us into our next discussion.

CONTROVERSIAL ERUVIN

A strange phenomenon of hilchos eruvin is that although Chazal created the concept of eruv to facilitate peace among the Jewish people, probably no other mitzvah has been involved in so much controversy. Why is this?

The details of hilchos eruvin are extremely complicated and often subject to dispute. It is not unusual to find a situation where one rav forbids a certain eruv min HaTorah, while another rav rules that it is perfectly kosher. Although both decisions are based on the same Gemara and halacha, one posek condemns as chilul Shabbos what the other considers a mere chumrah or less.

This is not a new phenomenon. Let us share a halachic discussion that is over a thousand years old.

600,000 PEOPLE

There is a very old dispute whether a reshus harabim (min haTorah) only exists if the area is used by at least 600,000 people, just as the reshus harabim of Klal Yisrael in the desert was used by 600,000 people, the members of the Jewish nation. (Indeed, the question is raised that a reshus harabim should require several million people because the 600,000 count only men over twenty and did not include the women and children.)

Rashi (Eruvin 59a) writes that only an area with this number of people constitutes a reshus harabim that cannot be enclosed with a tzuras hapesach. This excludes all the towns and cities inhabited by Jews from the Middle Ages until fairly modern times. They did not have 600,000 people and could therefore be enclosed by a tzuras hapesach. However, many rishonim disagree with Rashi and rule that any street or marketplace sixteen amos wide is a reshus harabim and cannot be enclosed with a tzuras hapesach. This issue is made more confusing since the Shulchan Aruch in Orach Chayim 345:7 rules strictly, whereas in 303:18 he appears to rule leniently. Many major authorities follow the lenient interpretation (Magen Avraham; Taz in 345), and it was upon this basis that most Eastern European communities constructed eruvin. However, according to most authorities this lenience cannot be used as the basis to permit an eruv today since most large Jewish communities are in places with more than 600,000 people.

A FIGHT OVER AN ERUV

In the thirteenth century, Rav Yaakov ben Rav Moshe of Alinsiya wrote a letter to the Rosh explaining why he forbade a tzuras hapesach eruv in his town. In his response, the Rosh replied that Rav Yaakov’s concerns were groundless and that he should immediately construct an eruv. Subsequent correspondence reveals that Rav Yaakov did not change his mind and still refused to erect an eruv in his town. The Rosh severely rebuked him for this recalcitrance, insisting that if he (Rav Yaakov) persisted he would be placed in cherem. The Rosh also ruled that Rav Yaakov had the status of a zakein mamrei, a Torah scholar who rules against the decision of the Sanhedrin, which is a capital offense (Shu’t HaRosh 21:8)! All this demonstrates that heated disputes over eruvin are by no means a recent phenomenon.

OVER-RELYING ON AN ERUV

Although there are many obvious advantages to having a kosher eruv, we should always be aware that there are also drawbacks. One major drawback is that people become unprepared if the eruv goes down one week. Suddenly, they cannot take their reading glasses to shul and their plans of pushing the stroller so they can eat the Shabbos meals at someone else’s house are disrupted.

Another disadvantage is that people become so used to having a eruv that they no longer pay serious attention to the prohibition against carrying. Children raised in such communities, and even adults who always lived in cities with an eruv, sometimes hardly realize that there is any prohibition against carrying.

In Israel, where virtually every town has an eruv, the assumption that there is always an eruv can be a tremendous disadvantage as the following story illustrates:

A moderately-learned frum Israeli moved to an American city with no eruv. He was hired by a yeshiva as cook and was responsible for the everyday kashrus of the yeshiva’s kitchen. The first Shabbos on his job, the new cook went for an afternoon stroll with his family, baby carriage and all. This raised a whirlwind in the yeshiva — people were shocked that they had entrusted the yeshiva’s kashrus to someone who openly desecrated Shabbos! Only later was it clarified that the cook was unaware that a city might not have an eruv. Living his entire life in cities with an eruv, he had automatically assumed that every city with a Jewish community had such a fixture!

In conclusion, we see that disputes among poskim over eruvin are not recent phenomena. In practice, what should an individual do? The solution proposed by Chazal for any such shaylah is “Aseh lecha rav, vehistalek min hasafek,” “Choose someone to be your rav, and remove yourself from doubt.” The rav can guide you to decide whether it is appropriate for you to carry within a certain eruv, after weighing factors including what heterim were used in the eruv’s construction, care of eruv maintenance and family factors. The psak and advice of one’s rav can never be underestimated!

Is Seeing Red Kosher?

Eisav is often associated with the color red, which provides an opportunity for the following halacha question: Is a red food color that is manufactured from animal material kosher? Indeed, the master artisans building the Mishkan used a dye, tola’as shani, which is often assumed to be the “blood” of an insect, in the manufacture of the Kohen Gadol’s vestments. Was this color kosher? This color was also used to dye the curtains and coverings of the Mishkan. 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.

Color is an important part of any food, and, in many cases, is one of the main considerations of consumers when choosing food. Companies increase sales by tinkering with the color of foods. For this reason, food technologists consider a number of factors when deciding how to color a particular food.

SEEING RED

As is evident from the verse, if your sins will be like shanim, they will become as white as snow; though they be red as the tola, they will become white, like wool (Yeshayah 1:18), tola’as shani is a red color. Upon this basis, some authorities identify tola’as shani as kermes, a shade of scarlet derived from scale insects (see Radak to Divrei Hayamim II 2:6). The ancients derived a red dye from the dried bodies of a species called Kermes ilices, which served as one of the most important pigments for thousands of years. As a matter of fact, the English word crimson derives from this ancient dye.

Are tola’as shani and kermes indeed identical? We should note that the Hebrew word tola’as, which is usually translated worm, may include insects and other small invertebrates. Thus, it may indeed be that the tola’as of the verse is a scale insect that produces a red dye. One can rally support for this approach from the verse in Divrei Hayamim (II 3:14), which describes the paroches curtain as woven from techeiles, argaman, karmil, and butz (linen), whereas the Torah describes the paroches as made of techeiles, argaman, tola’as shani, and shaish (linen) (Shemos 26:31). Obviously, karmil, which is fairly close to the word kermes, is another way of describing tola’as shani. Similarly, when describing the artisans sent by King Hiram of Tyre to help Shelomoh Hamelech build the Beis Hamikdash, Divrei Hayamim (II 2:13) mentions karmil as one of the materials used in construction of the Mishkan, and omits tola’as shani. Thus, karmil, a word cognate to kermes, is the same as tola’as shani, which the Radak assumes originates from the worm itself (Radak to Divrei Hayamim II 2:6). Similarly, the Rambam explains tola’as shani to mean “wool dyed with an insect” (Hilchos Klei Hamikdash 8:13).

However, Rabbeinu Bachyei (Shemos 25:3) takes issue with this approach, insisting that only kosher species may be used for manufacturing the Mishkan and the garments of the kohanim. He bases this position on the Gemara’s statement that “only items that one is permitted to eat may be used for the work of heaven,” which teaches that one may use only kosher items in the manufacture of tefillin (Shabbos 28a). Rabbeinu Bachyei assumes that the Mishkan, itself, whose entire purpose is to serve Hashem, certainly requires all its materials to be kosher.

Which presents us with the question: How does this fit with the description of tola’as shani as a worm derivative?

Rabbeinu Bachyei, himself, explains that the dye called tola’as shani does not originate from the insect itself, but from a fruit or berry that contains an insect. Both Rambam (Hilchos Parah Adumah 3:2) and Rashi (to Yeshayah 1:18) also seem to explain tola’as shani this way. Thus, we might be able to modify our explanation of the Rambam’s words “wool dyed with a worm” to mean “wool dyed with a fruit that contains a worm.” (However, see the contemporary work Be’ikvus Tola’as Hashani, who explains Rashi and the Rambam differently.)

Thus, Rabbeinu Bachyei, and possibly the Rambam and Rashi, identify the tola’as shani as a fruit that has a worm in it, whereas the Radak understands tola’as shani to be the derivative of the kermes insect itself. How does the Radak resolve the issue raised by Rabbeinu Bachyei that only kosher items may be used to fulfill mitzvos?

I know of several ways to resolve this concern:

(1) Some maintain that only the basic substance used to fulfill the mitzvah must be kosher, but not a dye that merely coats the surface (cf. Shu’t Noda Bi’yehudah II Orach Chayim #3). Therefore, tola’as shani may indeed be of a non-kosher source, since it is not the material used for the mitzvah, but only colors the materials used.

(2) Others contend that the prohibition to use non-kosher items for mitzvos applies only to tefillin, mezuzos and other mitzvos requiring use of Hashem’s name or of verses of Tanach, but that one may use non-kosher items for other mitzvos or for items used in the Beis Hamikdash (see Ran, Rosh Hashanah 26b s.v. umihu af al gav; Shu’t Noda Bi’yehudah II, Orach Chayim # 3). According to this analysis, tola’as shani is acceptable for the Beis Hamikdash, even if it is considered non-kosher.

(3) A third approach asserts that kermes dye is kosher, since its original source can no longer be identified. This approach is based on early poskim, who held that a prohibited food becomes kosher when it transforms completely into a new substance. The Rosh (Berachos 6:35; Shu’t 24:6) cites Rabbeinu Yonah, who permitted using musk, a fragrance derived from the gland of several different animals, many of them non-kosher, as a food flavoring, because it had already been transformed into a new substance no longer identifiable with its source. Similarly, the Rambam identifies musk as one of the ingredients in the incense burned in the Beis Hamikdash. Based on these authorities, one can theorize that although the source of the kermes is non-kosher, the dye itself is kosher. In an article I wrote once titled Some Kitniyos Curiosities, I noted that there is much dispute about this chiddush, and that virtually no late halachic authorities permit use of an originally non-kosher item that has become transformed, at least in regard to Torah prohibitions.

(4) Others contend that the kermes coloring is kosher, since the creatures are first dried — and powder derived from an insect dried for twelve months (or the equivalent) is considered to be innocuous and, therefore, kosher (see Pischei Teshuvah, Yoreh Deah 87:20 and Darkei Teshuvah ad loc. and 102:30 — the latter anthology contains a lengthy discussion on this topic; Shu’t Minchas Yitzchak 3:96:2).

Thus, we have several different ways of explaining how the tola’as shani may indeed have been identical with the Egyptian kermes and yet still be an acceptable dye for mitzvah objects, such as the garments of the kohanim and the curtains and coverings of the Mishkan. Analyzing the different opinions about tola’as shani leads into a practical discussion as to whether kermes is a kosher food coloring.

THE FOOD COLORING INDUSTRY

Whether we like it or not, many of our foods are colored with a host of coloring agents. Some are derived from food items, such as beets, berries, sugar (caramel coloring), turmeric and annatto, whereas others are derived from inedible materials, such as coal, petroleum and other sources most consumers would prefer to ignore. Although the processing of colorants can involve use of non-kosher ingredients or processing methods that compromise the kashrus of the finished product, only a few food colors are themselves obtained from non-kosher materials. Among those that originate from non-kosher substances is carmine red, also called cochineal, which is often used to color canned fruits, yogurts, juice drinks, maraschino cherries, etc.

THE ORIGIN OF CARMINE

When the Spaniards colonized the New World, they discovered a scale insect, called the cochineal bug, which yields a red color eight times brighter than kermes. The Spaniards valued this insect, developing and marketing its carmine red pigment. The word carmine, used specifically for this color, is derived from the similarity of cochineal to kermes, which it eventually replaced as the most common color. One of the common uses of this dye is in bright red punch, which, for this reason, became commonly called in camps “bug juice.”

KOSHER CARMINE?

Are kermes and carmine kosher for food coloring?

Whether kermes and carmine pigments are kosher or not depends on why some contend that kermes could be used to dye the garments of the kohanim. Let us review the four answers that I quoted above and see how each one impacts our shaylah.

Approach (1) above permitted dyeing a mitzvah item using non-kosher material, since the latter is not the primary item, but only a coloring. This approach would prohibit use of color from a non-kosher source in a product that one intends to eat.

Approach (2) ruled that mitzvah items that do not contain Hashem’s name or a holy verse may be produced from non-kosher substances. This reason would also forbid use of kermes or carmine colors for food.

Nevertheless, both the third and fourth approaches mentioned would permit using cochineal coloring in a kosher product.

Approach (3) held that the color is now transformed into a completely different substance and has therefore lost its non-kosher status.

Approach (4) maintained that the kermes scales are dried out to the point where they are no longer non-kosher. Indeed, for this reason, some authorities maintain that carmine is kosher (Pischei Teshuvah, Yoreh Deah 87:20; see Minchas Yitzchak 3:96:2). Many years ago, I remember seeing carmine color certified kosher by responsible talmidei chachamim. However, today, every respected kashrus agency I know treats carmine color as non-kosher.

Although approach #3 held that the color is now transformed and has therefore lost its non-kosher status, the Shulchan Aruch (Yoreh Deah 114:2) and other authorities (see Rema, Orach Chayim 467:8 and Magen Avraham 216:3) rule as the Rishonim, who prohibited a transformed food item whose original source was prohibited min hatorah. Many authorities permit a transformed food item whose source is prohibited because of rabbinic injunction (Pri Megadim, Mishbetzos Zahav 216:2; Shu’t Chasam Sofer, Yoreh Deah #117; Shu’t Imrei Yosher 2:140; Mishnah Berurah 216:7).

The relationship we have with food is not limited to taste and smell. We learn this from the laws requiring lighting candles for Shabbos, which enables one to see what he eats and thus leads to greater enjoyment of the Shabbos repast. Similarly, the Gemara teaches that a blind person is never satiated by what he eats (Yoma 74b). Much of the skill involved in the food service business is unrelated to cuisine, but intimately connected to the appearance and presentation of the food, in which the choice of colors figures prominently. As we see from the above article, we should keep in mind the kashrus ramifications of the color of the food we eat.

Rus, David, and the Prohibition of Marrying Moavites

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

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

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

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

The Story of Rus

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

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

The Story of David

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

Background to the Story

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

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

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

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

David the Brave

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

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

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

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

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

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

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

The Gemara Passage

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

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

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

What was Doeig’s Argument?

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

But what about the Moavite women?

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

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

Amasa to the Rescue!

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

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

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

There are two basic types of Torah laws:

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

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

Let me explain each category by using examples:

Mesorah

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

Logic

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

Mesorah vs. Logic

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

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

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

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

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

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

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

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

Conclusion

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

May I Dangle the Receiver?

Regarding Parshas Balak and the attempts to discredit the Jewish people, we present:

May I Dangle the Receiver?

Or

Hearing is Not Believing, and other Loshon Hora Questions.

Question #1: “Two of my neighbors are in a tiff, and I have a good relationship with both of them. Should I get involved to try to make peace, knowing that both sides will tell me their version of the story?”

Question #2: “Someone told me that one who believes loshon hora (disparaging things about people) does more harm to himself than does the one who spoke the loshon hora! How can this be?”

Question #3: Leora* asked me the following question:

(*All names in this article have been changed.)

“Some of my contacts are not so careful about saying loshon hora. Is it sufficient that I hold the receiver at a distance when they begin to tell me things that I do not want to hear?”

I asked Leora if she could think of other options, and she explained, “It is uncomfortable to tell people that they are violating halacha or to ask them not to gossip. I can create an excuse to end the conversation, such as, ‘the baby is crying’ or some similar emergency. But I would rather not do this, unless I must.”

Leora’s method of being careful to avoid hearing loshon hora, as a halachically observant person must be, is indeed accomplishing its purpose. The question is whether she must do more than this, since the speaker thinks that Leora is still listening. Later, I will explain why this may be problematic, and whether it is sufficient for Leora to simply “dangle the receiver.”

INTRODUCTION

We all know that telling or receiving disparaging information about members of Klal Yisrael is a Torah violation. “We are commanded not to accept loshon hora as true and not to look negatively upon the person about whom the story was told” (Shaarei Teshuvah 3:213). We should bear in mind that loshon hora is prohibited, even if it is absolutely true.

Exactly what is the prohibition of believing or accepting loshon hora? Before we answer this question, we need to define loshon hora. Two types of derogatory information are included in loshon hora:

I. Loshon hora is information that reflects poorly on someone, creating an unjustified bad impression of him or her. For example, relating that someone once violated certain commandments of committed sins disparages his reputation and constitutes loshon hora (Chofeitz Chayim 4:1).

II. Another category of loshon hora is relating information that might harm someone, even though it is not at all derogatory (Rambam, Hilchos Dei’os 7:5). For example, although it is not offensive to say that someone is in debt, there are many situations where this information could cause harm. Similarly, informing a person that someone has a wayward aunt is loshon hora, if this might result in disqualifying the person for a shidduch as a consequence (see Taz, Even Ha’ezer, 50:8).

DEFINING KABBALAS  LOSHON HORA

What should you do if you hear a story that reflects badly on someone?

Before I explain what to do in this situation, we should explain the two types of ill-doing involved when receiving derogatory information.

I. Believing (kabbalas) loshon hora.

II. Hearing loshon hora.

I. BELIEVING LOSHON HORA

The first prohibition against accepting loshon hora is that it results in one’s now having a less favorable impression of a fellow Jew. The fact that the information may be true and he may have transgressed does not allow me to think less of him, and therefore, I may not accept the report of his having sinned as fact (Zera Chayim pg 361, in explanation of opinion of Yad Ha’ketanah). For this reason, if I deny that the story is true, I have not accepted loshon hora, and I did not violate kabbalas loshon hora.

HEARING JUICY GOSSIP

What do I do if I hear some juicy chitchat?

If you hear some gossip, just completely disavow your accepting that the story is true. Remember that most stories that one hears are distorted, so it should take no great effort to simply deny the story’s accuracy.

If you find it difficult to doubt the story completely, re-interpret it in a way that it casts the person in a favorable light. For example, perhaps he/she thought that the act committed was halachically acceptable, or perhaps the reported event was misunderstood or only partially observed (see Be’er Mayim Chayim 6:1). For example, if you heard that someone grabbed a child, perhaps he was pulling the child away from danger. If you heard that someone argued with his father, perhaps he was trying to convince him to take needed medication.

REINTERPRETING THE STORY

Here is an example of how to reinterpret a story: Sharon tells you that Michal treated her rudely. You know that Michal is a quiet person; on top of that, perhaps Michal was distracted or under stress and was therefore even less exuberant than usual. Sharon, whom you know is sensitive, may have misinterpreted Michal’s lack of cheerfulness as rudeness. This interpretation of events will add no negative understanding to what you already know firsthand about both of them. The result is that the reinterpreted story does not place either person in a bad light and is therefore not loshon hora.

In this example, convincing Sharon that Michal was not being rude would be a big mitzvah.

By the way, one may listen to each side of a dispute relate his/her negative impressions of the disputant in order to calm down the quarrel (Chofeitz Chayim, 6:4). Here, too, one may not accept either story as accurate, but one should, in one’s own mind, reinterpret the events, so that they do not reflect badly on the parties involved.

For example, you are aware of a situation in which siblings are in a dispute concerning how to allocate resources to care for their elderly mother. While resolving this conflict, your goal is to appreciate the merit of each side’s approach and convince the other side that, although they might disagree, no one bears any ill will. Even if you cannot convince them of this, you should certainly not accept that either side means any wrong, unless you have solid evidence to the contrary (Shabbos 56a; Hagahos Maimoniyos, Dei’os 7:4).

CALMING A FIGHT

Two of your neighbors are in a big tiff. According to Reuven and Rochel, the upstairs kids are totally undisciplined and boisterous, making a racket that ruins Rochel’s life. Levi and Leah upstairs, however, have a different story. Their kids are extremely well disciplined and obedient, but Rochel is excessively sensitive to noise and cannot tolerate even the normal sliding of a chair under the dinner table. Since you have a good relationship with both parties and may be able to resolve the squabble, you may listen to each side’s complaints about the other, being careful not to believe them. It may, indeed, be true that Rochel is highly sensitive, and it may also be true that Levi and Leah do not control their kids as much as they should. Your job is to make shalom between them, not to accept whichever interpretation of events is true.

One violates the prohibition against accepting loshon hora when one’s impression of any party is disparaged without adequate evidence. In all the above instances, if one’s positive impression of the people involved remains intact, despite all that one heard, one has successfully avoided accepting loshon hora. (There are exceptions when one may accept what one heard as true, but these are beyond the scope of this article.)

With this background, we can now answer Question #1 above:

“Two of my neighbors are in a tiff, and I have a good relationship with both of them. Should I get involved to try to make peace, knowing that both sides will tell me their version of the story?” The answer is that you should get involved, but be careful not to accept anyone’s account as an accurate portrayal of the misdeeds of his/her neighbor.

LOSHON HORA ABOUT A CHILD

There is an interesting halachic difference between these two categories of loshon hora. The first category, relating that someone did something improper, does not apply to the transgressions or faults of a child. Since a minor’s immaturity exempts him from responsibility, it is usually not loshon hora to discuss his misdeeds or capers. Therefore, it is permitted to mention that a child did something mischievous, since this action does not reflect negatively on him (see Chofeitz Chayim 8:3 and Be’er Mayim Chayim ad loc.). [Some poskim contend that, if the child would be embarrassed by someone reporting what he did, or his activity was not considered age-appropriate, then repeating this information is prohibited as loshon hora (Shevilei Chayim 8:4; Shu’t Lechafeitz Bachayim #29). On the other hand, I once read a psak of Rav Chayim Kanievsky shlit’a contending that, as long as the story is not harmful to the child’s interests, there is no loshon hora about his antics since he is not yet required to observe mitzvos.]

However, when the information could ultimately prove harmful to the child, one may not share it (Chofeitz Chayim 8:3). For example, if a school might refuse to accept a child based on his family background, it is loshon hora to provide the school with this information. Similarly, people smile when told that a young man drew on the wall when he was three years old, but they might assume that he is psychologically unhealthy if they hear that he had violent fits of rage at age 12½.

II. HEARING LOSHON HORA

Until now, we discussed some basic halachos of accepting loshon hora. In addition to the prohibition of believing loshon hora, it is also prohibited to hear negative things about someone when there is no need. It is insufficient to simply not believe what one heard; one must avoid hearing it.

WHAT DO I DO IF SOMEONE BEGINS TO GOSSIP?

How far must one go to avoid hearing loshon hora?

The Gemara (Kesubos 5b) homiletically interprets a verse as saying, “there should be pegs [i.e., your fingers, which are shaped like pegs] inside your ears,” meaning, if you sense that someone is about to tell you something inappropriate, you should place your fingers on your ears to avoid hearing it. In other words, one must not only be careful to avoid loshon hora but must even do something unusual if that is the only way to avoid hearing it. Thus if you are among a group of people and one of them begins to say loshon hora, you should leave immediately. If you are on the phone, and the other party begins saying loshon hora, you should quickly say, “An emergency just came up; I’ll have to call you back later,” and abruptly hang up the receiver. Of course, in this last case, you told the whole truth: an emergency did indeed come up, since the other party began saying loshon hora!

What if one is unable to leave and avoid hearing gossip? The Gemara states that one must even place one’s hands over one’s ears to shun loshon hora! Nevertheless, the Chofeitz Chayim (6:5) notes that, although this is the proper thing to do, many people may find it too embarrassing to sit this way and have people mock them. Under these circumstances, the Chofeitz Chayim rules that one should be careful not to believe the stories being told, and be careful not to want to hear them. It is preferable that one demonstrate his disapproval, at least with his facial expression (Chofeitz Chayim, 6:5).

Rabbeinu Yonah implies that one should demonstrate to the speaker that he does not want to hear the loshon hora. Showing a total lack of interest in the conversation discourages the speaker from saying loshon hora.

We now understand Leora’s original question. She does not want to listen to the gossip she is being told. The question is: to what extent must she demonstrate that she does not want to hear loshon hora? Although dangling the receiver prevents Leora from hearing the gossip, it does not demonstrate disapproval to the speaker. Whereas listeners who are visible to the speaker can actually show disinterest, the speaker here may think that she has an avid listener; thus, perhaps Leora should put an active end to the conversation. Even though the speaker is not saying loshon hora to anyone, as there is no listener, the speaker nevertheless thinks that he or she is sinning. Someone who thought he was doing something forbidden but ended up doing something permitted needs forgiveness and atonement (Kiddushin 81b; Nazir 23a). The Gemara’s example of this is someone who wanted to eat something non-kosher, but inadvertently ate kosher. The unsuccessful intent to violate the halacha is itself a Torah prohibition.

As a result, although by dangling the receiver Leora is not hearing loshon hora, she has not prevented the person from thinking that loshon hora has been spoken, either, a sin for which she will require atonement. Therefore I told Leora that it would be better to terminate the conversation by saying, for example, “something just came up, I’ll call you back later!” This prevents the talker from violating any prohibition.

WHO IS WORSE?

After all we have discussed here, I can now explain the Rambam’s statement (Hilchos Dei’os 7:3) that one who believes loshon hora inflicts more self-harm than the speaker! Why should this be?

The reason is that the basic purpose of forbidding loshon hora is to avoid harming a Jew’s reputation. Who is the greater maligner, one who spreads information that he knows to be true, or one who believes an unsubstantiated story? Certainly, the one who accepts an unsubstantiated report that degrades someone denigrates kedushas Yisrael to a greater degree (see Nesiv Chayim 6:3).

Rav Chayim Pinchas Scheinberg zt”l noted that when people repeat the pasuk, mi ha’ish he’chafeitz chayim oheiv yamim lir’os tov, “Who is the man who wants life, loves his days to see only good,” they often pay little attention to the concluding words, liros tov, “to see good,” even though these words are the key to success in this mitzvah. If you view everyone with a good eye, you will be unable to believe derogatory information about them. As Rav Pam once said, “My mother was incapable of saying or accepting loshon hora; not simply because of her yiras shamayim, but because of her appreciation of what Jews are!” May we all reach the level of seeing the good and really appreciating our fellow Jews!

What Warrants Birchas Hagomeil?

In parshas Chukas, the Torah alludes to a miraculous salvation that the Bnei Yisrael experienced prior to entering the Holyland. Certainly an appropriate time to discuss this topic.

Situation #1: “Frequent Flyer?!”

“I daven in an Ashkenazi shul, and a Sefardi fellow who attends the shul who must be some incredible, frequent flyer. He seems to recite birchas hagomeil every Monday and Thursday, whether or not they give him an aliyah.”

Question #2: Infrequent Flyer

“I do not understand why we bensch goimel when we fly over the ocean, but not when flying over land. It is just as dangerous to fly overland — as a matter of fact, it is actually somewhat safer to fly over water, since there is a far greater chance of surviving a crash landing at sea than on land.”

Question #3: Recuperating

“I recently underwent some surgery. At what point do I recite birchas hagomeil?”

Answer:

Our Sages instituted a beracha, called birchas hagomeil, which is recited when someone has been saved from four different types of treacherous predicaments: those who traveled by sea, those who journeyed through the desert, someone who was ill and recovered, and someone who was captured and gained release (Berachos 54b). In a different essay, I discussed the Biblical and Talmudic sources for this beracha, the requirements to recite it in the presence of ten people and its relationship to the reading of the Torah. This essay will discuss some of the circumstances for which one recites birchas hagomeil.

How much traveling?

One of the four instances for which the Gemara requires birchas hagomeil is surviving a trip through a desert. However, when the Rambam quotes this Gemara, he states, “those who traveled on intercity roads recite birchas hagomeil when they arrive at a settled place,” instead of “those who traveled through the desert.” The authorities dispute what the Rambam means. The Tur assumes that he means that one recites birchas hagomeil after any trip. This is the position held by the Ramban, who writes that the Gemara mentioned those who traveled through the desert only because that is the context of the verse in Tehillim, but that anyone traveling recites birchas hagomeil upon reaching his destination safely. For this reason, the Ramban and the Avudraham record that many Sefardim recite birchas hagomeil for any out-of-town trip, for, to quote the Talmud Yerushalmi (Berachos 4:4), kol haderachim bechezkas sakanah, “all highways should be assumed to be dangerous.

The Rosh, however, disagrees with the Ramban, contending that there is a difference between tefillas haderech, which one recites for any trip, and birchas hagomeil, which one recites only when one would be required to offer a korban todah. In the Rosh’s opinion, the statement kol haderachim bechezkas sakanah means that one should recite tefillas haderech any time one travels between cities, but not that one should recite birchas hagomeil upon one’s return. Reflecting this approach, the Rosh and Rabbeinu Yonah mention that, in France and Germany, the practice was to refrain from reciting birchas hagomeil when traveling from one city to the next.

The Bach also follows this approach and takes issue with the Tur’s interpretation of the Rambam. He contends that the Rambam agrees that someone traveling through an area where food and water can be readily obtained does not recite birchas hagomeil afterwards. The Bach suggests that the Tur was not quoting the Rambam, but the Ramban, and that scribes erred while redacting.

How far?

The Beis Yosef rules that one should not recite birchas hagomeil or tefillas haderech if his trip takes him a parsah, a distance of somewhat less than two and a half miles, outside a city. In practical terms, many Sefardim recite birchas hagomeil only after an intercity trip that took longer than 72 minutes, regardless of the distance covered or the method of transportation (Shu’t Yabia Omer 2: Orach Chayim #14).

Port call

Does someone on an extensive sea voyage recite birchas hagomeil each time his ship docks or only when he has reached his final destination?

If the ship pulls into port for a day or two, one does not recite birchas hagomeil until the voyage is over (Bach and Elyah Rabbah 219:1, quoting Olas Tamid; Mishnah Berurah 219:1 adds that this also holds true if someone traveling through the desert visits a city en route). However, the Bach is uncertain whether one should recite birchas hagomeil if he will be in port for an extended period of time before continuing his voyage. He also writes that someone who survives a mishap at sea should refrain from reciting birchas hagomeil until he arrives ashore. At this point, the traveler should recite birchas hagomeil on the entire voyage, including the specific accident that he, fortunately, survived.

The Biur Halacha discusses whether one travelling a short trip by river on a raft should recite birchas hagomeil. He says that it depends on the above-mentioned dispute between Ashkenazim and Sefardim whether one recites birchas hagomeil for a short intercity land trip. According to minhag Ashkenaz, that one does not recite birchas hagomeil for a short trip, one should not recite birchas hagomeil for a trip by raft; whereas, according to minhag Sefard, which recites birchas hagomeil even for a short intercity trip, one should recite birchas hagomeil for a short river trip.

Travels daily

The Minchas Yitzchak (4:11) was asked by someone who lived in Copenhagen, whose livelihood required him to travel among the nearby Danish Islands of the Baltic Sea, whether he was required to recite birchas hagomeil every time he traveled through the sea, in which case he would be reciting it almost daily.

To answer the question, the Minchas Yitzchak refers to a responsum of the Avnei Nezer, who asks why the text of the beracha is that the traveler was chayov, guilty. The Avnei Nezer explains that there could be one of two reasons why this traveler undertook this trip: one alternative is that he felt a compelling need to travel, for parnasah or some other reason, in which case he should ask himself why Hashem presented him with such a potentially dangerous situation. The traveler should contemplate this issue and realize that he needs to do teshuvah for something — which now explains why the beracha calls him “guilty.”

The other alternative is that the traveler could have avoided the trip, in which case he is considered guilty, because he endangered himself unnecessarily.

Based on the above-quoted Avnei Nezer, who explained why all four categories of people who recite birchas hagomeil are categorized as “guilty,” the Minchas Yitzchak concludes one does not recite birchas hagomeil if one lives in a place where sea travel is required each day. One cannot label a person as “guilty” for living in a place that is accepted to be a normal place to live, and if a recognized livelihood in such a place requires daily sea travel, this is not considered placing oneself in unnecessary danger.

Airplane travel

Does someone who travels by airplane recite birchas hagomeil?

In researching the different teshuvos written on this subject, I found a wide range of halachic opinion. Rav Moshe Feinstein rules that anyone traveling by airplane must recite birchas hagomeil, regardless as to whether he was traveling over sea or over land, exclusively. He contends that even those authorities who rule that one should recite birchas hagomeil only for the four types of calamities mentioned in Tehillim and the Gemara also require birchas hagomeil for flying, since flying by air is identical to traveling by ship, as the entire time that one is above ground, one’s longterm life plans are all completely dependent on one’s safe return to land (Shu’t Igros Moshe, Orach Chayim 2:59). I found a ruling basically identical to Rav Moshe’s that cited a different reason. One should recite birchas hagomeil, not because air travel should be compared to seafaring, but because we rule that one recites birchas hagomeil for any type of danger to which one is exposed (Shu’t Betzeil Hachachmah 1:20).

Rav Ovadyah Yosef rules that Sefardim should recite birchas hagomeil after any air trip that takes longer than 72 minutes, just as they recite birchas hagomeil after any trip on land that takes this long (Shu’t Yabia Omer 2: Orach Chayim #14).

On the other hand, many contend that, since this is a different method of travel from what was included in the original takanas Chazal, and, in addition, air travel today is not highly dangerous, one should not recite birchas hagomeil, at least not with the Names of Hashem, out of the concern that this might result in a beracha levatalah (Shu’t Chelkas Yaakov 2:9; Rav Sion Levy, in his question to Rav Ovadyah Yosef, published in Shu’t Yabia Omer, Orach Chayim II #14).

According to what we have written thus far, there should be no distinction drawn as to the length of the flight or whether it traverses land or sea. According to Rav Moshe Feinstein’s approach, one should always recite birchas hagomeil for air flight, and according to those who dispute this approach, one should not. Notwithstanding the strong logic, there is a prevalent custom that people bensch gomeil when flying overseas, but not when flying domestically. The Be’er Moshe (2:68) notes this practice, which he feels has very weak halachic foundation. Nevertheless, since this is the prevalent custom, he attempts to justify it and says that people should follow the custom.

How sick?

How ill must a person have been to require that he recite birchas hagomeil upon his recovery? I am aware of three opinions among the rishonim concerning this question.

(1) Some hold that one recites birchas hagomeil even for an ailment as minor as a headache or stomach ache (Aruch).

(2) Others contend that one recites birchas hagomeil only if he was ill enough to be bedridden, even when he was not dangerously ill (Ramban, Toras Ha’adam, page 49; Hagahos Maimoniyus, Berachos 10:6, quoting Rabbeinu Yosef).

(3) A third approach holds that one should recite birchas hagomeil only if the illness was potentially life threatening (Rama).

The prevalent practice of Sefardim, following the Shulchan Aruch, is according to the second approach — reciting birchas hagomeil after recovery from any illness which made the person bedridden. The prevalent Ashkenazic practice is to recite birchas hagomeil only when the illness was life threatening, notwithstanding the fact that the Bach, who was a well-respected Ashkenazic authority, concurs with the second approach.

How recuperated?

At what point do we assume that the person is recuperated enough that he can recite the birchas hagomeil for surviving his travail? The poskim rule that he does not recite birchas hagomeil until he is able to walk well on his own (Elyah Rabbah; Mishnah Berurah).

Chronic illness

The halachic authorities rule that someone who suffers from a chronic ailment and had a life threatening flareup recites birchas hagomeil upon recovery from the flareup, even though he still needs to deal with the ailment that caused the serious problem (Tur).

Conclusion

Rav Hirsch (Commentary to Tehillim 100:1) notes that the root of the word for thanks is the same as that for viduy, confession and admitting wrongdoing. All kinds of salvation should elicit in us deep feelings of gratitude for what Hashem has done for us in the past and does in the present. This is why the blessing can be both an acknowledgement of guilt and, at the same time, an expression of the thanks that we owe Hashem.

We often cry out to Hashem in crisis, sigh in relief when the crisis passes, but fail to thank Him adequately for the salvation. Our thanks to Hashem should match the intensity of our pleas. Birchas hagomeil gives us a concrete beracha to say to awaken our thanks for deliverance. And even in our daily lives, when, hopefully, we do not encounter dangers that meet the criteria of saying birchas hagomeil, we should still fill our hearts with thanks, focusing these thoughts during our recital of mizmor lesodah, az yashir, modim or at some other point in our prayer.

The Fruits of the Fourth Year

The second of this week’s two parshios, Kedoshim, mentions the mitzvah of neta reva’ie. Hence…

The Fruits of the Fourth Year

Question #1:

Rabbi Lamdan, a local talmid chacham, asks his Rav: “I have carefully studied this week’s parsha, which contains the Torah’s only mention of the mitzvah of neta reva’ie (fruit that grows during the fourth year of a tree’s existence). Yet, I cannot find a single allusion in the Torah to the laws of neta reva’ie as recorded by the halachic authorities! What information am I missing?”

Question #2:

Tikvah, always known for her intellectual honesty, inquires: “I feel like a hypocrite. Every day I pray for Moshiach to come and our return to the land of our fathers, and yet, I know little about the agricultural mitzvos of the Torah. If I truly hope for his imminent appearance, should I not be familiarizing myself with the laws that will apply when he arrives?”

Question #3:

When the Levy family moved into their spacious Waterbury home, they planted several fruit trees and grapevines, which are now producing luscious looking pears, apples and grapes. May they begin enjoying the fruit? Must they perform any special procedures before eating them?

What do these three questions have in common?

Understanding the basic laws of neta reva’ie and their source will enable us to answer both Rabbi Lamdan’s and the Levys’ questions, and at the same time will assist Tikvah in her search for truth.

First, the basics:

This week’s parsha proclaims:

“When you arrive in the Land, and you plant any tree for its fruit, you shall restrict its fruit; what is produced the first three years is restricted from you and may not be eaten. And in the fourth year, all its fruit shall be holy for praises to Hashem. Only in the fifth year may you eat its fruit – therefore, it will increase its produce for you, for I am Hashem, your G-d” (Vayikra 19:23-25).

The fruit produced in the first three years of a tree’s life is called orlah and is forbidden. The Torah refers to planting an eitz maachal, which I translated as a tree for its fruit, rather than a fruit tree. This is because Chazal understand that the prohibition of orlah applies only to a fruit tree planted for its fruit, and not to a fruit tree planted for a non-food purpose, such as for lumber or as a hedge (Orlah 1:1). This rule may affect the Levys, as I will later explain.

Although the Torah states only that orlah may not be eaten, the Torah shebe’al peh teaches that one may not benefit from it either. For this reason, one may not dye one’s skirt with orlah pomegranate peels, heat a house with orlah nutshells, or even feed orlah fruits and peels to animals. (In a different article, I discussed how one determines the end of the three prohibited crop years.) Although the mitzvah of orlah is obviously agricultural, it nevertheless applies to trees growing outside Eretz Yisrael.

KODESH HILLULIM – HOLY FOR PRAISES

Although the fourth year’s fruit is no longer orlah, it still has a special status. When the Torah discusses this produce, it states, “And in the fourth year, all its fruit shall be holy for praises (in Hebrew, kodesh hillulim) to Hashem.” As Rabbi Lamdan correctly noted, the Torah’s entire description of the status of these fruits is these two words. What does this obscure phrase kodesh hillulim mean? What type of sanctity does the fruit manifest, and how does this result in praise?

REDEMPTION IS PRAISE

The Gemara explains that the sanctity of the neta reva’ie fruit prohibits one from eating it until it has been redeemed (Berachos 35a). This act of redemption is itself praise to Hashem (Rashba ad loc.).

However, Rabbi Lamdan is not entirely satisfied with this answer. He knows that one redeems neta reva’ie only if one cannot eat the fruit in Yerushalayim, an aspect that the verse does not mention. Furthermore, the verse says nothing about the method of redemption, which, in fact, has many detailed halachos, as we will see.

We must research further.

MILITARY EXEMPTIONS

We find another reference that might shed some light on the nature of neta reva’ie. Concerning the individuals exempted from going to war, the Torah states: “Who is the man who planted a vineyard, but he did not yet redeem it? He shall return to his house” (Devarim 20:6). Here the Torah alludes to the redeeming of a vineyard, although it mentions no details about when and how this happens (see Rashba, Berachos 35a). Although this verse does not answer any of Rabbi Lamdan’s questions, it does imply a new factor, heretofore unmentioned: that the mitzvah of neta reva’ie applies only to grapes. (In reality, the Gemara [Berachos 35a] cites a dispute whether neta reva’ie indeed applies only to grapes or to all fruits, a matter that we will soon discuss.)

Thus, our search for the sources for this mitzvah is still unresolved.

In fact, much of the law concerning neta reva’ie originates elsewhere. A mesorah, an oral tradition from Sinai, compares its sanctity to that of a different mitzvah, maaser sheni (Kiddushin 54a). There the Torah states:

“And you shall eat the maaser of your grain, your wine, and your olive oil …before Hashem your G-d, in the place where He will choose to rest His name — so that you will thereby learn always to be in awe of Hashem. However, when you will be blessed by Hashem your G-d such that you will be unable to carry [the maaser sheni] as far as the place that Hashem chose, then you may exchange it for money that you subsequently take with you when you go to the place that Hashem chose. You may then exchange the money for cattle, sheep, wine or anything else you desire, and you shall eat there before Hashem your G-d, and in this way, you and your family will celebrate” (Devarim 14:23-26).

THE LAWS OF MAASER SHENI

The Torah shebe’al peh teaches that “the place where He will choose to rest His name” refers to the city of Yerushalayim. Thus, we are to transport maaser sheni to Yerushalayim. However, if this is difficult, one may redeem the produce for coins instead, and the special sanctity of the maaser sheni transfers to the money. One adds an additional 25% to the money and brings it to Yerushalayim, where he purchases with it food to be eaten within the confines of the city. This acquisition transfers the maaser sheni sanctity from the money onto the food.

Whether one transports one’s maaser sheni produce itself to Yerushalayim or exchanges it for money, the farmer remains with a large value that may be consumed only in Yerushalayim, a city bursting with sanctity and special, holy people. The beauty of this mitzvah is that it entices the farmer to ascend to the Holy City and be part of the spiritual growth attainable only there.

One can even look at the maaser sheni as “vacation fund” money that the Torah provides. Although the farmer may not be wealthy, when he arrives in Yerushalayim, he can eat and drink like a king!

WHAT MAY ONE PURCHASE?

The Torah specifies that once in Yerushalayim, one may exchange the maaser sheni money for cattle, sheep, wine or anything else you desire, which seems both wordy and unusual. The Torah shebe’al peh interprets this to mean that one may not purchase just any food with maaser sheni money, but only those that grow either from the ground or on it. Therefore, one may use maaser sheni money to purchase fruit, vegetables, breads, pastry, meat or poultry, but not fish, which do not grow on the ground, not salt or water, which do not grow; and not mushrooms, which are fungi and also do not grow from or on the ground.

RITUAL PURITY — TAHARAH

Both the original maaser sheni and food purchased with its redemption money are holy and may be eaten only within the walls of the old Yerushalayim and only when both the food and the individual eating it are tahor, ritually pure.

OH MY JERUSALEM

By the way, the area of today’s Old City of Jerusalem is encompassed by walls constructed by the Ottoman Turks.  The Turkish walls surround areas that probably were not part of the city at the times of Tanach and Chazal, and therefore those areas do not have the halachic sanctity of the Holy City; at the same time, without any question, large sections that do have the sanctity of the Holy City are outside these walls.

CONTEMPORARY MAASER SHENI

The fact that one must be tahor to consume maaser sheni changes the way one observes this mitzvah today, when achieving this status is virtually unattainable. Since we have no ashes of a parah adumah with which to purify ourselves of certain types of tumah, we cannot eat the produce of maaser sheni, nor the food purchased with the redeeming coins, since they have the same sanctity. Because of this problem, it is pointless to purchase food with these coins, and instead, they remain unused and are eventually destroyed. To avoid excessive loss, one may redeem large quantities of maaser sheni onto a very small value within a coin: this is the way we redeem maaser sheni today. Of course, we are missing the main spiritual gain of consuming the foods in Yerushalayim, but this is one of the many reasons for which we mourn the destruction of the Beis HaMikdash and pray daily for its restoration.

THE LAWS OF NETA REVA’IE

We now return to the laws of neta reva’ie. Although the Torah alludes only to the redemption of neta reva’ie fruits, the Torah shebe’al peh teaches us to apply the laws of maaser sheni to neta reva’ie, where the redemption services the grower unable to transport his produce to Yerushalayim. Similarly, one may eat neta reva’ie itself only in Yerushalayim when tahor. Someone who cannot transport it there may redeem it by transferring its kedusha, holiness, to coins. When doing this, he add 25% to the value, brings the money to Yerushalayim instead of the fruit, and there purchases food to eat in the Holy City. Just as redeeming maaser sheni still allows the grower to reap the spiritual benefits of his produce, so, too, redeeming reva’ie enables the grower to benefit from the Yerushalayim experience.

At this point, we can answer Rabbi Lamdan’s original inquiry. The extensive literature of the Mishnah, Gemara and halachic authorities concerning neta reva’ie assumes that the laws of neta reva’ie derive from those of maaser sheni, and that the purpose of the redemption of neta reva’ie produce is to allow someone with a bountiful reva’ie crop to benefit from the spiritual gains of his produce.

And just as we cannot make ourselves tahor today, and therefore we cannot eat the produce of maaser sheni, we can also not consume the neta reva’ie or the food purchased with its redemption coins, since they have the same sanctity. Because of this problem and to avoid the loss that would result, we may transfer the kedusha of large quantities of neta reva’ie to a coin of small value. Again, we are missing the main spiritual gain of consuming the foods in Yerushalayim, and for this, too, we mourn the destruction of the Beis HaMikdash.

REVA’IE IN WATERBURY?

Having answered Rabbi Lamdan’s questions and also having addressed Tikvah’s concern, we will now tackle the questions raised by the Levys’ trees and vines. Does someone living outside Eretz Yisrael also merit fulfilling the mitzvah of neta reva’ie on his fruit? The Rishonim debate whether this mitzvah applies in chutz la’aretz, just as the mitzvah of orlah does, or if it is treated the same as most agricultural mitzvos that are exempt in chutz la’aretz. There are three basic approaches to this issue:

1. Some authorities contend that, since neta reva’ie is an agricultural mitzvah, it does not apply outside Eretz Yisrael, which is the usual, but not absolute, rule regarding these mitzvos (see Rambam, Hilchos Maachalos Asuros 10:16).  Although orlah is an exception and applies even in chutz la’aretz because of a special halacha leMoshe miSinai, an oral tradition that Moshe received at Mount Sinai, reva’ie applies only in Eretz Yisrael, since it was not specifically included in the halacha leMoshe miSinai. Those who rule this way conclude that the Torah did not extend the spiritual benefits of these mitzvos to include produce grown outside Hashem’s palace. Therefore, the Levys’ trees are exempt from the mitzvah of neta reva’ie and all fruit produced after the orlah years are available for consumption, without any redemption procedure.

2. On the opposite side, there are authorities who contend that the halacha leMoshe miSinai that requires that we observe orlah in chutz la’aretz also requires observing the mitzvah of reva’ie; Hashem wanted us to benefit from the mitzvah of neta reva’ie, even outside the Holy Land. Therefore, the fruit that grows on the Levys’ trees and vines in Waterbury during the fourth year have the sanctity of neta reva’ie (see Rabbeinu Yonah, Berachos, Chapter 6). This is the opinion that the Shulchan Aruch follows (Yoreh Deah 294:7). (For reasons beyond the scope of this article, reva’ie applies only when we are certain that the fruit grew in the fourth year, but not when we are uncertain whether it grew in the fourth year or the fifth.)

ALL FRUIT OR ONLY GRAPES

3. There is a third opinion that contends that reva’ie applies to grapes that grow in chutz la’aretz but not to other fruits (Tosafos, Kiddushin 2b s.v. esrog and Berachos 35a s.v. ulemaan). This is based on a dispute as to whether the mitzvah of reva’ie in Eretz Yisrael applies to all fruit trees, or only to grapes (Berachos 35a). Many authorities conclude that we rule leniently regarding produce grown in chutz la’aretz and therefore absolve all fruits from neta reva’ie, except for grapes (Rama and Gra to Yoreh Deah 294:7).

Thus, according to Sefardic practice of following the Shulchan Aruch, the pears, apples and grapes of the fourth year growing in Waterbury, have the status of reva’ie and require redemption. According to the Ashkenazic practice, the grapes require redemption, but not the pears or apples.

CONCLUSION

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

The Basics of Birchas Hagomeil

Among the many topics covered in this week’s reading are the mitzvos of the woman who just gave birth. This provides an opportunity to discuss the basics of Birchas Hagomeil:

Question #1: An offering or a blessing?

“The Torah describes bringing a korban todah as a thanksgiving offering. How does that relate to the brocha of birchas hagomeil? Did someone recite birchas hagomeil while offering the korban?”

Question #2: Blessing at home?

“May I recite birchas hagomeil if I will not be able to get to shul for kri’as haTorah?”

Question #3: Exactly ten?

“Our minyan has exactly ten people today. May someone recite birchas hagomeil?”

Answer:

There are two mitzvos related to thanking Hashem for deliverance from perilous circumstances. In Parshas Tzav, the Torah describes an offering brought in the Mishkan, or the Beis Hamikdash, called the korban todah.

There is also a brocha, called birchas hagomeil, which is recited when someone has been saved from a dangerous situation. The Rosh (Brachos 9:3) and the Tur (Orach Chayim 219) explain that this brocha was instituted as a replacement for the korban todah that we can no longer bring, since, unfortunately, our Beis Hamikdash lies in ruin. Thus, understanding the circumstances and the laws of the korban todah and of birchas hagomeil is really one combined topic. This article will discuss some of the basic laws of birchas hagomeil.

Tehillim on Salvation

The Gemara derives many of the laws of birchas hagomeil from a chapter of Tehillim, Psalm 107. There, Dovid Hamelech describes four different types of treacherous predicaments in which a person would pray to Hashem for salvation. Several times, the Psalm repeats the following passage, Vayitzaku el Hashem batzar lahem, mimetzukoseihem yatzileim, “when they were in distress, they cried out to Hashem asking Him to deliver them from their straits. Hashem hears the supplicants’ prayers and redeems them from calamity, whereupon they recognize Hashem’s role and sing shira to acknowledge Hashem’s deliverance. The passage reflecting this thanks, Yodu lashem chasdo venifle’osav livnei adam, “they acknowledge thanks to Hashem for His kindness and His wondrous deeds for mankind,” is recited four times in the Psalm, each time expressing the emotions of someone desiring to tell others of his appreciation. The four types of salvation mentioned in the verse are for: someone who successfully traversed a wilderness, a captive who was freed, a person who recovered from illness, and a seafarer who returned safely to land.

Based on this chapter of Tehillim, the Gemara declares, arba’ah tzerichim lehodos: yordei hayam, holchei midbaros, umi shehayah choleh venisra’pe, umi shehayah chavush beveis ha’asurim veyatza, “four people are required to recite birchas hagomeil: those who traveled by sea, those who journeyed through the desert, someone who was ill and recovered and someone who was captured and gained release” (Brachos 54b). (Several commentators provide reasons why the Gemara lists the four in a different order than does the verse, a topic that we will forgo for now.) The Tur (Orach Chayim 219) mentions an interesting method for remembering the four cases, based on words from our daily shmoneh esrei prayer: vechol hachayim yoducha selah, explaining that the word chayim has four letters, ches, yud, yud and mem, which allude to chavush, yissurim, yam and midbar, meaning captive, the sufferings of illness, sea, and desert: the four types of travail mentioned by the verse and the Gemara. (It is curiously noteworthy that when the Aruch Hashulchan [219:5] quotes this, he has the ches represent “choli,” illness [rather than chavush, captive], which means that he would explain the yud of yissurim to mean the sufferings of captivity.)

Not all troubles are created equal!

Rav Hai Gaon notes that these four calamities fall under two categories: two of them, traveling by sea and through the desert, are situations to which a person voluntarily subjected himself, whereas the other two, illness and being held captive, are involuntary (quoted by Shu’t Chasam Sofer, Orach Chayim #51). Thus, we see that one bensches gomeil after surviving any of these types of dangers, regardless of their having been within his control or not.

Some commentaries note that the Rambam cites the Gemara passage, arba’ah tzerichim lehodos, “four people are required to thank Hashem,” only in the context of birchas hagomeil and not regarding the laws of korban todah. This implies that, in his opinion, korban todah is always a voluntary offering, notwithstanding the fact that Chazal required those who were saved to recite birchas hagomeil (Sefer Hamafteiach). However, both Rashi and the Rashbam, in their respective commentaries to Vayikra 7:12, explain that the “four people” are all required to bring a korban todah upon being saved. As I noted above, the Rosh states that since, unfortunately, we cannot offer a korban todah, birchas hagomeil was substituted.

Thus we can answer the first question asked above:

“The Torah describes bringing a korban todah as a thanksgiving offering. How does that relate to the brocha of birchas hagomeil? Did someone recite birchas hagomeil while offering the korban?”

At the time of the beis hamikdash, birchas hagomeil had not yet been invented. We look much forward to its rebuilding so that we can again offer the korbanos and thereby become closer to Hashem this way. (However, note that the Chasam Sofer shares another possible way which disagrees with this interpretation of the Rosh and the Tur.)

A Minyan

When the Gemara (Brachos 54b) teaches the laws of birchas hagomeil, it records two interesting details: (1) that birchas hagomeil should be recited in the presence of a minyan and (2) that it should be recited in the presence of two talmidei chachamim.

No Minyan

Is a minyan essential for birchas hagomeil, as it is for some other brachos, such as sheva brachos? If someone cannot arrange a minyan for birchas hagomeil must he forgo the brocha?

The Tur contends that the attendance of a minyan and two talmidei chachamim is not a requirement to recite birchas hagomeil, but only the preferred way. In other words, someone who cannot easily assemble a minyan or talmidei chachamim may, nevertheless, recite birchas hagomeil. The Beis Yosef disagrees regarding the requirement of a minyan, feeling that one should not recite birchas hagomeil without a minyan present. However, he rules that if someone errantly recited birchas hagomeil without a minyan, he should not recite it again, but should try to find a minyan and recite the text of the brocha while omitting Hashem’s Name, to avoid reciting a brocha levatalah, a blessing in vain (Shulchan Aruch, Orach Chayim 219:3). The Mishnah Berurah follows an approach closer to that of the Tur, ruling that if one will be unable to assemble a minyan, he may recite birchas hagomeil without one. However, someone in a place where there is no minyan should wait up to thirty days to see if he will have the chance to bensch gomeil in the presence of a minyan. If thirty days pass without the opportunity, he should recite the birchas hagomeil without a minyan and not wait any longer.

When do we recite Birchas hagomeil?

The prevalent custom is to recite birchas hagomeil during or after kri’as haTorah (Hagahos Maimaniyos 10:6). The Orchos Chayim understands that this custom is based on convenience, because kri’as haTorah also requires a minyan (quoted by Beis Yosef, Orach Chayim 219). The Chasam Sofer presents an alternative reason for reciting birchas hagomeil during or after kri’as haTorah. He cites sources that explain that kri’as haTorah serves as a substitute for offering korbanos, and therefore reciting birchas hagomeil at the time of kri’as hatorah is a better substitute for the korban todah that we unfortunately cannot offer (Shu’t Chasam Sofer, Orach Chayim #51). He concludes nevertheless that, under special circumstances, one may recite birchas hagomeil without kri’as hatorah, which answers the question asked above: “May I recite birchas hagomeil if I will not be able to get to shul for kri’as haTorah?” The answer is that, when there is no option of hearing kri’as hatorah, one may recite birchas hagomeil without it.

Do we Count the Talmidei Chachamim?

I quoted above the Gemara that states that one should recite birchas hagomeil in the presence of a minyan and two talmidei chachamim The Gemara discusses whether this means that birchas hagomeil should be recited in the presence of a minyan plus two talmidei chachamim, a minimum of twelve people, or whether one should recite birchas hagomeil in the presence of ten people which should include two talmidei chachamim. The Rambam (Hilchos Brachos 10:8) and the Shulchan Aruch (Orach Chayim 219:3) rule that the minyan includes the talmidei chachamim, whereas the Pri Megadim rules that the requirement is a minyan plus the talmidei chachamim. Notwithstanding the Pri Megadim’s objections, the Biur Halacha concludes that one does need more than a minyan including the talmidei chachamim.

No Talmid Chacham to be found

The Shulchan Aruch (Orach Chayim 219:3) then adds that someone located in a place where it is uncommon to find talmidei chachamim may recite birchas hagomeil in the presence of a minyan, even without any talmidei chachamim present.

Ten or ten plus one?

There is a dispute among the authorities whether the individual reciting the brocha is counted as part of the minyan or if we require a minyan aside from him (Raanach, quoted by Rabbi Akiva Eiger to 219:3). Most authorities rule that we can count the person reciting the brocha as one of the minyan (Mishnah Berurah 219:6). Shaar Hatziyun rallies proof to this conclusion, since it says that one should recite the brocha during kri’as haTorah, and no one says that one can do this only when there is an eleventh person attending the kri’as haTorah.

Thus, we can answer the last question that was asked above:

“Our minyan has exactly ten people today. May someone recite birchas hagomeil?”

The answer is that he may.

Conclusion

Rav Hirsch (Commentary to Tehillim 100:1) notes that the root of the word for thanks is the same as that for viduy, confession and admitting wrongdoing. All kinds of salvation should elicit in us deep feelings of gratitude for what Hashem has done for us in the past and does in the present. This is why it can be both an acknowledgement of guilt and thanks.

We often cry out to Hashem in crisis, sigh in relief when the crisis passes, but fail to thank adequately for the salvation. Our thanks to Hashem should match the intensity of our pleas. Birchas hagomeil gives us a concrete brocha to say to awaken our thanks for deliverance. And even in our daily lives, when, hopefully we do not encounter dangers that meet the criteria of saying birchas hagomeil, we should still fill our hearts with thanks, focus these thoughts during our recital of mizmor lesodah, az yashir, modim or at some other appropriate point in our prayers.

image_print