Flavor and Fragrance – The Bracha on Fragrant Fruits

At the beginning of our parsha, Yosef is still a prisoner in Egypt. But remember, that when he was first sold into slavery to Egypt, it was to a caravan that carried pleasant smelling products….

This article will explain the halachos of the bracha Hanosein rei’ach tov ba’peiros “He who bestows pleasant fragrances in fruits.” Many authorities prefer that one recite the version Asher nasan rei’ach tov ba’peiros, in past tense, “He who bestowed pleasant fragrances in fruits” (Elyah Rabbah 216:5; Mishnah Berurah 216:9).

Here are some curious questions about this bracha that we need to resolve:

1.  Do we recite this bracha on a food that is not a fruit?

2. Assuming that we recite this bracha on any food, do we recite this bracha on a seasoning that is not eaten by itself, such as cinnamon or oregano?

3. If I am eating a fragrant fruit, do I recite a bracha when I smell it while I am eating it?

4. Do I recite this bracha when smelling a delicious cup of coffee or a freshly-baked pastry? After all, the coffee bean is a fruit, and the flour of the pastry is a grain, which is also halachically a fruit. As we will see, the answer to this question is not so obvious.

Origins of the Bracha “Hanosein Rei’ach Tov Ba’peiros”

The Gemara (Berachos 43b) teaches that someone who smells an esrog or a quince should first recite Hanosein rei’ach tov ba’peiros.

Question: Why did Chazal institute a unique bracha for aromatic fruits?

Answer: Whenever one benefits from this world one must recite a bracha. Thus, Chazal instituted brachos that are appropriate for fragrances. However, all the other brachos on fragrance are not appropriate for smelling fragrant foods, since the other brachos praise Hashem for creating fragrances, whereas esrog and quince are not usually described as fragrances, but as foods that are fragrant. Therefore, Chazal established a special bracha for aromatic fruits (see Beis Yosef, Orach Chayim, end of Chapter 297).

It is noteworthy that even though quince is edible only when cooked, it is still considered a fruit for the purpose of this bracha. More on this question later…

Do We Recite This Bracha on Fragrant Foods That Are Not Fruits?

This leads us to a fascinating halachic discussion with a surprising conclusion.

A Bracha on Smelling Bread?

Several early poskim contend that one should recite a bracha before smelling hot fresh bread (Beis Yosef, Orach Chayim Chapter 297, quoting Avudraham and Orchos Chayim). However, when discussing what bracha one should recite, these poskim contend that mentioning besamim (such as Borei isvei or minei besamim) is inappropriate since bread is not a fragrance but a food. It is also inappropriate to recite on it Hanosein rei’ach tov ba’peiros, since it is not a fruit. They therefore conclude that one should recite Hanosein rei’ach tov bapas, “He who bestows pleasant fragrance in bread.” Indeed, one contemporary posek rules that someone who smells fresh cookies should recite Hanosein rei’ach tov ba’ugah, “He who bestows pleasant fragrances in cake.”

However the Beis Yosef and other poskim disagree, contending that one does not recite a bracha before smelling bread or cake, pointing out that the Gemara and the early halachic sources never mention reciting a bracha before smelling bread. These poskim contend that we do not recite a bracha on smelling bread because its fragrance is not significant enough to warrant a bracha (Beis Yosef, Chapter 297).

This question creates a predicament: according to the “early poskim,” one may not smell bread without first reciting a bracha;whereas according to the Beis Yosef, reciting a bracha on its fragrance is a bracha recited in vain! The only way of resolving this predicament is by trying not to smell fresh bread, which is the conclusion reached by the Rama (216:14).

(Incidentally, the Rama’s rulingteaches a significant halacha about the rule of safek brachos le’kula, that we do not recite a bracha when in doubt. Although one may not recite a bracha when in doubt, one also may not smell a fragrance or taste a food without reciting the bracha because that would be benefiting from the world without a bracha. This halacha applies in any case when someone has a doubt about reciting a bracha. Although he may not recite the bracha, he may also not benefit without finding some method of resolving the safek.)

The concept, introduced by the Beis Yosef, that one recites a bracha only on a significant fragrance is hard to define. The following is an example in which poskim dispute whether a fragrance is considered significant.

Wake Up and Smell the Coffee!

The Mishnah Berurah (216:16) rules that someone who smells fresh-roasted ground coffee should recite a bracha of Hanosein rei’ach tov ba’peiros. However, the Kaf Hachayim (216:86), one of the great Sefardic poskim, rules that it is uncertain whether the fragrance of coffee is significant enough to warrant a bracha. Thus, most Sefardim will not recite a bracha prior to smelling fresh-roasted coffee, whereas those who follow the Mishnah Berurah will.

As we have discussed, although some poskim (Avudraham and Orchos Chayim) limit the bracha of Hanosein rei’ach tov ba’peiros to fruits, other poskim contend that this bracha should be recited before smelling any fragrant food. This dispute influences the next discussion.

Do We Recite Hanosein Rei’ach Tov Ba’peiros on a Fragrant Seasoning?

The question here is what defines an edible fruit for the purposes of this bracha. Do we recite Hanosein rei’ach tov ba’peiros only on fruit or do we recite it on any edible item? Furthermore, assuming that we recite Hanosein rei’ach tov ba’peiros on any edible item, is a flavoring or seasoning considered a food for the purposes of this bracha?

Spices that are used to flavor but are themselves never eaten, such as bay leaves, are not considered a food. For this reason, there is no requirement to separate terumos and maasros on bay leaves, even if they grew in Eretz Yisrael (Tosafos, Yoma 81b; Derech Emunah, Terumos 2:3:32). A seasoning that is never eaten by itself, but is eaten when it is used to flavor — such as cinnamon, oregano, or cloves — is questionable whether it is considered a food. Therefore, we separate terumos and maasros on it without a bracha, and, if it is eaten by itself, we do not recite a bracha of borei pri ha’eitz or borei pri ha’adamah (Shulchan Aruch, Orach Chayim 202:16). What bracha do we recite before smelling a seasoning?

Cloves

A clove is the dried flower bud that grows on a tree; the clove is consumed only as a spice, but is not eaten on its own. The poskim dispute what is the correct bracha to recite before smelling cloves, there being a total of four opinions:

Hanosein rei’ach tov ba’peiros:The Shulchan Aruch (216:2) rules that this is the correct bracha to say before smelling cloves, despite the fact that cloves are never eaten alone (Taz 216:4). He contends that we recite Hanosein rei’ach tov ba’peiros on anything that is consumed, even if it is eaten only as a seasoning.

Borei atzei besamim:Many poskim rule that we recite Hanosein rei’ach tov ba’peiros only on items that are eaten on their own, but not if they are eaten solely as a flavoring. Cloves are therefore discounted as a food item and treated exclusively as a fragrance. Since the clove grows on a woody stem, these poskim rule that we should recite Borei atzei besamim before smelling the spice. This approach is followed by some Sefardic poskim (Yalkut Yosef 216:4).

Borei isvei besamim:In a different article, I pointed out that some poskim contend that one recites Borei atzei besamim only on a fragrance that grows on what is considered a tree for all other halachos. The stem of the clove is hollow, which according to some opinions precludes it being considered a tree. (In a different article, I pointed out that some poskim contend that the correct bracha before eating papaya is Borei pri ha’adamah because the papaya plant has a hollow trunk [Shu’t Rav Pe’alim Vol. 2, Orach Chayim #30].) Because of the above considerations, some rule that the clove is not considered a food or a tree, but a herbaceous (non-woody) plant upon which the correct bracha is Borei isvei besamim. This is the common custom among Yemenite Jews(Ohr Zion Vol. 2 pg. 136; Vezos Haberacha, pg. 174). (It should be noted that some varieties of forsythia also have a hollow or semi-hollow stem. According to the Yemenite custom, the bracha recited before smelling these would be Borei isvei besamim rather than Borei atzei besamim. However, non-Yemenites should recite Borei atzei besamim before smelling forsythia since it is a woody, perennial shrub.)

Borei minei besamim:Because of the disputes quoted above, many poskim rule that one should recite Borei minei besamim on cloves (Elyah Rabbah 216:9; Mishnah Berurah 216:16). This is the accepted practice among Ashkenazim and many Sefardic poskim (Birkei Yosef 216:5; Kaf Hachayim 216:34; Ohr Zion Vol. 2 pg. 136).

Is It Wood or Food?

Based on this last opinion, we can derive a different halacha. Assuming that there is a dispute whether the bracha on cloves is Hanosein rei’ach tov ba’peiros or Borei atzei besamim, why do we recite Borei minei besamim when we are in doubt?Shouldn’t the correct bracha be Borei atzei besamim, since it grows on a tree? From this ruling we see that Borei atzei besamim and Hanosein rei’ach tov ba’peiros are mutually exclusive categories. Either an item is a fragrance or it is considered an edible food that is fragrant, but it cannot be both. Thus, if the correct bracha is Hanosein rei’ach tov ba’peiros then it is considered to be a food, not wood, and the bracha Borei atzei besamim is in vain. On the other hand, if the correct bracha is Borei atzei besamim then we have concluded that clove is not food and the bracha Hanosein rei’ach tov ba’peiros would be in vain. For this reason, Ashkenazim and most Sefardic poskim recite the bracha Borei minei besamim whenever there is a question on what bracha to recite (Aruch Hashulchan 216:5; Elyah Rabbah 216:9; Mishnah Berurah 216:16; Birkei Yosef  216:5; Kaf Hachayim 216:39 and Ohr Tzion Vol. 2 pg. 136; compare, however, Yalkut Yosef 216:4).

Cinnamon, Spice and Everything Nice

What bracha does one recite before smelling cinnamon?

The Tur quotes a dispute between the Rosh, who contends that the bracha is Hanosein rei’ach tov ba’peiros, and the Maharam, who contends that one should recite Borei atzei besamim. In the Rosh’s opinion, cinnamon should be treated as a food. Thus, we may assume that he contends that the bracha before smelling all spices is Hanosein rei’ach tov ba’peiros, even though they are not eaten by themselves. We can also draw a conclusion from this Rosh that we recite the bracha Hanosein rei’ach tov ba’peiros even on the bark of a tree that is eaten, such as cinnamon. Thus in his opinion, the word ba’peiros in the bracha should be translated as food rather than as fruit. (In truth, the word pri in the bracha Borei pri ha’adamah should also not be translated as fruit, since we recite it on stems, roots, and leaves when we eat celery, carrots, and lettuce.)

On the other hand, the Maharam contends that Hanosein rei’ach tov ba’peiros  is inappropriate, presumably because cinnamon is usually not eaten by itself. Alternatively, the Maharam may hold that Hanosein rei’ach tov ba’peiros is inappropriate for cinnamon because it is a bark and not a fruit.

Either way, many Ashkenazi poskim rule it is a safek whether the bracha on cinnamon is Hanosein rei’ach tov ba’peiros or Borei atzei besamim and therefore one should recite borei minei besamim (Elyah Rabbah 216:9; Mishnah Berurah 216:16). Many Sefardim recite Borei atzei besamim before smelling cinnamon (Yalkut Yosef 216:4). Everyone agrees that the bracha before smelling cinnamon leaf is Borei atzei besamim.

And the Lemon Smells So Sweet!

But the fruit of the poor lemon is impossible to eat! Is the bracha before smelling a lemon Hanosein rei’ach tov ba’peiros because it is after all a fruit, or do we recite a different bracha since it is too bitter to eat by itself?

Some poskim rule that one should recite Hanosein rei’ach tov ba’peiros before smelling lemons (Ginas Veradim 1:42; Yalkut Yosef 216:7), whereas others contend that one should recited Borei minei besamim before smelling a lemon, treating the lemon as a safek as to whether it is considered a fruit or not (Ketzos Hashulchan 62:9 in Badei Hashulchan).

However, this latter opinion causes one to wonder why the bracha before smelling a lemon is different from the bracha before smelling an esrog? After all, the Gemara teaches that before smelling an esrog we recite Hanosein rei’ach tov ba’peiros, although an esrog is also too bitter to eat. Possibly, the esrogim in the days of Chazal were less bitter and were edible. This is implied by the Gemara (Sukkah 36b), which mentions that Rav Chanina took a bite out of his esrog, something difficult to imagine doing to a contemporary esrog.

An alternative approach is that an esrog is a fruit because it can be made edible by adding sugar. However according to this reason, a lemon should also be considered a fruit, since one can eat candied lemon, which I presume would require the bracha of Borei pri ha’eitz (Vezos Ha’beracha pg. 366). Similarly, some people eat the slice of lemon they used to season their tea, and lemon is also eaten as a pudding or pie filling. I presume that the bracha on these items when eaten alone would be Borei pri ha’eitz. The fact that lemon cannot be eaten unsweetened should not affect what bracha we recite before eating or smelling lemon just as the bracha before smelling fresh quince is Hanosein rei’ach tov ba’peiros even though it is also not edible raw.

Furthermore, we noted above that Chazal instituted the bracha Hanosein rei’ach tov ba’peiros on fragrant fruits and foods because one cannot recite a bracha on them by calling them fragrances. Few people would describe lemon as a fragrance, but as a fruit.

Because of these reasons, I believe the bracha before smelling a lemon should be Hanosein rei’ach tov ba’peiros, but I leave it for the individual to ask their rav.

Incidentally, the correct bracha to recite before smelling citrus blossoms or flowers is Borei atzei besamim, since the flower is not edible.

As a side point, one should be very cautious about eating esrog today. Esrog is not a food crop and it is legal to spray the trees with highly toxic pesticides. Because of the rule of chamira sakanta mi’isurah (the halachos of danger are stricter than that of kashrus), I would paskin that it is prohibited to eat esrogim today unless the owner of the orchard will vouch for their safety. However, this will get me into a controversial debate with many rabbonim who give hechsherim on esrog orchards, so I am not going to discuss this issue anymore. Simply — although Aunt Zelda may have a great recipe for making esrog jam, I suggest substituting lemon or lime instead.

Incidentally, the bracha on eating lemon jam should be Borei pri ha’eitz, which is additional evidence that the bracha before smelling a lemon is Hanosein rei’ach tov ba’peiros.

There is a major shaylah in halacha whether one may smell one’s esrog and hadasim during Sukkos. I have written a separate article on this subject.

Eating and Smelling a Fruit

If I am eating a fragrant fruit, do I recite a bracha before I smell it even though I am not deliberately trying to?

One does not recite the bracha on fragrance if one is picking up the fruit to eat and happens to smell it at the same time (Shulchan Aruch, Orach Chayim 216:2). However, if one intends both to smell the food and also to eat it, then it would seem to be a question of dispute whether one should recites both brachos, Borei pri ha’eitz and Hanosein rei’ach tov ba’peiros. This issue is dependent on a dispute between poskim whether one recites a bracha on a fragrant item that is intended to be used for another purpose. I analyzed this subject in a different article in which I discussed when one should not recite a bracha before smelling a fragrance.

Which Bracha Should I Recite First?

The poskim disagree as to whether one should first recite the bracha on eating the fruit because this is considered a greater benefit (Olas Tamid), or whether one should first recite the bracha on smelling it, since the fragrance reaches your nose before you have a chance to take a bite out of it it (Elyah Rabbah 216:6). The Mishnah Berurah (216:10) rules that one should recite the bracha on smelling the fruit first, although he also cites another suggestion: have in mind not to benefit from the fragrance until after one has recited the bracha on eating it and has tasted the fruit. Then, recite Hanosein rei’ach tov ba’peiros and benefit from the fragrance.

Many poskim state that the custom today is to not make a bracha on smelling a fruit unless it has a pronounced aroma (see Vezos Haberacha pg. 174). For this reason, some hold that one should not make a bracha when smelling an apple since apples are often not that fragrant, but one could recite a bracha when smelling guava which is usually much more aromatic. (However, note that Rambam and Mishnah Berurah [216:8] mention reciting a bracha before smelling an apple, although it is possible that the apples they had were more fragrant than ours.)

The Gemara (Berachos 43b) teaches “How do we know that one must recite a bracha on a fragrance, because the pasuk (Tehillim 150:6) says, ‘Every neshamah praises Hashem,’ – What exists in the world that the soul benefits from, but not the body? Only fragrance.”

Although the sense of smell provides some physical pleasure, it provides no nutritional benefit. Thus, smell represents an interface of the spiritual with the physical. Similarly, we find that we are to offer korbanos as rei’ach nicho’ach, a fragrance demonstrating one’s desire to be close to Hashem. We should always utilize our abilities to smell fragrant items as a stepping stone towards greater mitzvah observance and spirituality.

The author acknowledges the tremendous assistance provided by Rabbi Shmuel Silinsky for the horticultural information used in researching this article.

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Some Light Chanukah Questions

Question #1: My sister invited our family for Shabbos Chanukah, and we will be sleeping at her neighbor’s house. Where do we set up the menorahs, particularly since I do not even know the neighbor?

Question #2: My husband has a meeting at work tonight and will not be home until very late. What should we do about kindling Chanukah lights?

Question #3: I will be attending a wedding during Chanukah that requires me to leave my house well before lighting time, and I will not return until very late. Can I kindle at the wedding, just like the lighting that takes place in shul?

Question #4: I will be spending part of Chanukah in a hotel. Where should I kindle my menorah?

Some Basics

Each individual has a requirement to light Chanukah lights, or to have an agent kindle the lights for him (see Rambam, Hilchos Chanukah 3:4). In places where the custom is that the entire household lights only one menorah, which is the predominant practice among Sefardim, the person who kindles functions as an agent for the rest of the family and the guests. (However, cf. Minchas Shelomoh 2:58:41 and 42, who understands this halacha differently.) Even in places where the custom is that each individual kindles his own menorah, as is common Ashkenazic practice, married women do not usually light, and most people have the custom that single girls also do not light (see Chasam Sofer, Shabbos 21b s.v. vehamehadrin, Elyah Rabbah 671:3,and Mikra’ei Kodesh #14 who explain reasons for this practice). In these instances, the male head of household kindles on behalf of his wife and daughters. A guest visiting a family for Chanukah can fulfill his or her obligation by contributing a token amount to purchase part of the candles or oil. By doing this, the guest becomes a partner in the Chanukah lights and fulfills his mitzvah when the host kindles them. An alternative way to become a partial owner of the Chanukah lights is for the host to direct the guest to pick up some of the oil or candles and thereby become a partial owner.

Eating in One House and Sleeping in Another

If someone is a guest and is eating at one house during Chanukah but sleeping in a different house, where should he light the menorah?

One should kindle where he is eating (Rema, Orach Chayim 677:1). In this situation, the place where one eats his meals is his primary “home.”

Many poskim contend that in Eretz Yisroel, the answer to this question depends on additional factors, including whether anyone else is staying in the house where the guest is sleeping. In their opinion, if no one else is kindling a menorah where the guest is sleeping, he should kindle the menorah there. Otherwise, he should kindle where he is eating.

The reason for this difference is that, in Eretz Yisroel, where the custom is to light outdoors when practical, someone walking through the street expects to find a menorah lit at every house. Thus, there is a responsibility to be certain that a menorah is kindled in every house that is occupied. In chutz la’aretz, since the menorah does not need to be visible outdoors to fulfill the mitzvah, a person walking outside the house and not seeing a lit menorah will simply assume that someone kindled indoors. Therefore, one does not need to make sure that every house has a lit menorah.

Similarly, someone in Eretz Yisroel who is using two houses should light a menorah in each of them, although he should recite only one bracha; in chutz la’aretz he does not need to kindle a menorah in each house.

I can now answer the first question I asked above: If someone will be eating in one house and sleeping in another, where should he kindle the menorah? The answer is that, in chutz la’aretz, he should kindle where he will be eating. In Eretz Yisroel, other factors may be involved, and one should ask a shaylah.

Many poskim contend that a guest who is spending Shabbos at someone else’s home and is leaving after Shabbos may kindle the menorah at his host’s house on Motza’ei Shabbos (Teshuvos Vehanhagos 1:391). Some poskim suggest that someone who follows this approach should spend some time, preferably a half-hour, appreciating his lights at the host’s house before leaving (see Teshuvos Vehanhagos 1:394).

At this point, let us discuss the second of our opening questions: My husband has a meeting at work tonight and will not be home until very late. What should we do about kindling Chanukah lights?

To answer this question, we need to discuss two issues. The first is:

When Should I Kindle the Menorah?

Early poskim dispute concerning when is the optimal time to kindle the Chanukah lights. According to the Gra, the best time is immediately after sunset, whereas most Rishonim rule that it is preferable to kindle at nightfall or shortly before nightfall.

The usually accepted approaches are to kindle sometime after sunset but before it is fully dark. Thus, Rav Moshe Feinstein kindled the menorah ten minutes after sunset, the Chazon Ish lit his menorah twenty minutes after sunset, while others contend that the optimal time to light the menorah is twenty-five minutes after sunset.

Until When May I Kindle the Menorah?

At the time of the Gemara, one fulfilled the mitzvah of lighting menorah only if one lit within a half-hour of the earliest time for lighting (Shabbos 21b; Shulchan Aruch, Orach Chayim 672:2). This was because the focus of lighting the menorah was to publicize the miracle to people in the street. Since, in the days of Chazal, the streets were empty shortly after dark, there was no longer any mitzvah of kindling Chanukah lights half an hour later.

Today, the pirsumei nisa (publicizing the miracle) is primarily for the members of the household, and therefore many poskim hold that it is not essential to kindle the menorah immediately when it begins to get dark (see Tosafos, Shabbos 21b s.v. de’ei). Nevertheless, because this halacha is disputed, one should strive to kindle at the optimal time, which is close to twilight, as we mentioned above. In addition, there is also a halachic problem with working before one performs the mitzvah, similar to other mitzvos, such as bedikas chometz or hearing megillah, where it is prohibited to work or eat before fulfilling the mitzvah (Shu’t Maharshal #85; Mishnah Berurah 672:10; Teshuvos Vehanhagos 1:395:4). Someone who missed lighting menorah at the proper time because of extenuating circumstances should kindle his menorah as soon as his family is assembled at home (Rema Orach Chayim 672:2and Mishnah Berurah ad loc.).

An alternative method can be followed when a husband is delayed. The husband can arrange to have a member of the household, such as his wife, act as his agent and light at the optimal time (Mishnah Berurah 675:9; Teshuvos Vehanhagos 4:170). If he follows this approach, he does not need to light when he arrives home later, and if he does light, he should not recite the brachos. Alternatively, the wife can light at the proper time for herself, and the husband can light when he gets home. If one follows the latter approach, the husband and wife are no longer functioning as agents for one another, as they usually do germane to mitzvos such as ner Chanukah and ner Shabbos. Rather, each is fulfilling the mitzvah of ner Chanukah separately.

Whether to follow this approach depends on the sensitivities of the people involved. My Rosh Yeshivah, Rav Y. Ruderman zt”l, frequently lectured us on the importance of being concerned about others’ feelings. He often repeated the story of the Chofetz Chayim’s rebbe, Rav Nachumke, who waited several hours until his rebbetzin returned home before lighting the Chanukah lights. Therefore, if kindling the menorah early via an agent will create friction between family members, one should wait and kindle at a time that creates more shalom bayis (see Shabbos 23b). It is important to discuss the matter in advance and decide on an approach that keeps everyone happy.

At this point, let us examine the third of our opening questions: I will be attending a wedding during Chanukah that requires me to leave my house well before lighting time, and I will not return until very late. Can I kindle at the wedding, just like the lighting that takes place in shul?

Answer: Let us ask this question about the baalei simcha themselves! If a wedding takes place during Chanukah, where should the baalei simcha light the menorah?

I have attended weddings during Chanukah where the baalei simcha brought their menorahs to the hall and kindled them there. However, this seems incorrect, because the baalei simcha are required to kindle Chanukah lights at their own homes (Teshuvos Vehanhagos 1:398). Therefore, they should light the menorah at their homes sometime during the evening. If this is not convenient, they should arrange for someone to act as their agent and kindle their menorah for them at their house (see Mishnah Berurah 677:12). Guests attending the wedding who cannot kindle their menorah at home should also arrange for someone to light their menorah at their house. If they are concerned about leaving unattended lights burning, they should have someone remain with the lights for half an hour, and then the “menorah sitter” may extinguish the lights. If someone wishes to light an additional menorah at the hall without a bracha, in order to make pirsumei nisa, he may do so. However, this lighting does not fulfill the mitzvah (Teshuvos Vehanhagos 1:398).

Why Is This Different from Lighting in Shul?

Since one fulfills the mitzvah only by kindling the menorah in or near one’s residence, why do we kindle a menorah in shul?

Lighting the Chanukah menorah in shul does not fulfill the mitzvah of kindling Chanukah lights, but is a centuries-old minhag that we perform to make pirsumei nisa.

This practice prompts an interesting question. If lighting a menorah in shul is only a minhag, why do we recite a bracha on it? Do we ever recite brachos on minhagim?

The poskim explain that we recite a bracha because it is an accepted minhag, just as we recite a bracha on Hallel on Rosh Chodesh, even though Chazal did not obligate this recital of Hallel and it, too, is technically a minhag (Shu’t Rivash #111; for other reasons see Beis Yosef, Orach Chayim 671, s.v. uma shekasav shemeinichin).

There Is a Concert in School on Chanukah. Should We Light the Menorah with a Bracha to Perform Pirsumei Nisa?

Although lighting a menorah at the assembly will also be an act of pirsumei nisa, one fulfills no mitzvah or minhag by doing so. Therefore, one should not recite a bracha on this lighting (Teshuvos Vehanhagos 1:398).

Why Is the Concert Different from Lighting in Shul?

Lighting in shul is a specific, established minhag. We cannot randomly extend this minhag to another situation and permit reciting a bracha (Teshuvos Vehanhagos 1:398).

Lighting in a Hotel

And now, let us analyze the last of our opening questions: I will be spending part of Chanukah in a hotel. Where should I kindle my menorah?

Answer: One should light the menorah in one’s room (Chovas Hador, Ner Chanukah 2:9;see Shu’t Maharsham 4:146,who requires one to kindle Chanukah lights even while riding the train). If there is concern about a fire hazard, one should remain with the menorah until a half-hour after nightfall, or at least for a half-hour after kindling, and then extinguish the lights. On Shabbos, place only enough oil to burn the required amount of time, which is until a half-hour after nightfall.

Menorah in the Window?

May one place the menorah near the window of his hotel room? This depends. If someone will be able to see the lit menorah from outside, then it is preferable to light in a window. If no one will be able to see the menorah from outside, he should simply kindle the menorah on a table in his room.

If a hotel forbids lighting flames in its bedrooms, and one is eating regularly in the hotel’s dining room, one may light in the hotel dining room. Although frum hotels often set up menorahs in the hotel lobby, many poskim contend that one does not fulfill the mitzvah by placing a menorah there, since one is required to kindle Chanukah lights at one’s “home,” which is where one regularly eats or sleeps, and not in a lobby. Other poskim are lenient, and contend that the entire hotel lobby is considered one’s living area — just as one’s entire house is considered one’s living area. Therefore, according to these authorities, one may fulfill the mitzvah by lighting in the hotel lobby.

Visiting during Chanukah

Where do I light menorah if I visit a friend for Chanukah dinner, but I am not staying overnight?

Many people err and think that one may fulfill the mitzvah by kindling the menorah at someone else’s house while visiting. I know of people who invite guests to their house for menorah kindling and dinner. The problem with this is that one is required to kindle Chanukah lights at one’s own house. Therefore, the guest must kindle the Chanukah lights at his own house and then go to his friend’s house for the festive meal (Taz 677:2; Mishnah Berurah 677:12).

Yeshivah Bachur

Where should a bachur in yeshivah kindle his menorah? This is a dispute among contemporary poskim. Some contend that he should light in the yeshivah dining room, since it is preferable to kindle where one eats, as we mentioned above. Others contend that his dormitory room is considered more his “dwelling” than the dining room, and that he should light there (Shu’t Igros Moshe Yoreh Deah III 14:5; Shu’t Minchas Yitzchok 7:48; Chovas Hador pg. 106). To resolve this issue, some bachurim have the practice of eating one meal each day of Chanukah in their dormitory room and kindling the menorah there.

What about a yeshivah bachur who spends his entire day in the yeshivah, but sleeps at home?

It is unclear whether his main obligation to light is at home or in yeshivah. Some poskim suggest that he fulfill the mitzvah by relying on the people kindling at each place — his family lighting at his home and his fellow students lighting in the yeshivah.

Reward for Lighting Ner Chanukah

The Gemara teaches that someone who kindles Ner Chanukah will merit having sons who are talmidei chachomim (Shabbos 23b, see Rashi). This is puzzling; since all observant Jews kindle Ner Chanukah, why aren’t all our sons talmidei chachomim? The Rishonim explain that this bracha applies only to someone who observes the mitzvah carefully, in all its details (Sod Hadlakas Ner Chanukah, authored by Rabbi Yitzchok, the son of the Raavad). It is, therefore, in our best interest to be thoroughly familiar with all the halachos of kindling the Chanukah lights. May we all be blessed with a happy and healthy Chanukah!!

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The Prohibition of Chanufah

According to some opinions, Yaakov may have been guilty of chanufah in his interactions with Eisav in this week’s parsha. What is chanufah and what did Yaakov do?

Question #1: Financial predicament

“Our yeshivah is in desperate financial shape. The father of one of our students is, himself, not observant, but he is extremely well-connected. If we make him Guest of Honor at our banquet, we can probably bring in many hundreds of thousands of dollars through his business and personal connections. Is there any halachic problem with our doing this?”

Question #2: Communal predicament

“There is an individual in our community who has been very helpful to the frum community but who is not observant. Are we permitted to honor him with an aliyah?”

Question #3: Kiruv predicament

Chani asks: “An old classmate of mine has fallen far from Yiddishkeit, unfortunately, and I believe that I am the only frum friend with whom she still keeps contact. Tragically, she recently became engaged to a non-Jew, and she desperately wants me to attend the engagement party. She knows that I do not approve of this relationship. May I attend, because I am concerned that, should I not show up, she will cut off her last contact with anything Jewish?”

Introduction:

All of the above questions require us to study the Torah’s prohibition against chanufah (sometimes pronounced “chanifah“), a word usually, but somewhat inaccurately, translated as “flattery.” Although the word chanufah in Modern Hebrew means “flattery,” and, indeed, is even occasionally used by Chazal in this sense, the prohibition against chanufah has a different meaning. Chanufah is the deception that occurs when someone encourages the performance of misdeeds, aveiros, or when someone fraudulently misrepresents something as Torah or as acceptable behavior when it is not.

The primary case of chanufah is when someone sees or knows that a person sinned and tells the sinner that he did nothing wrong or, worse still, tells the sinner that the sinful act was the correct thing to do. We can refer to this case as “first degree chanufah,” a sin that has very serious ramifications, as we will soon see. The person who violates the prohibition of chanufah is sometimes called a mechaneif, a chanaf, or a chanfan, all of which are different ways of saying the same thing. The Gemara states that chanafim are one of the four groups of people she’einam mekablei penei hashechinah, who will not be allowed to welcome the Shechinah, Hashem’s Divine Presence (Sotah 42a).

Which prohibition does one violate?

According to many Rishonim (Yerei’im; Ramban’s Torah Commentary to Bamidbar 35:33), there is a specific prohibition of the Torah, one of the 613 mitzvos, called chanufah, which is derived from the words of the Torah, velo sachanifu es ha’aretz (Bamidbar 35:33). Those authorities who do not count chanufah as one of the 613 mitzvos still agree with the prohibitions that we will describe, but categorize its violation under one of the other mitzvos of the Torah.

Why is chanufah prohibited?

Chanufah is prohibited for several reasons. Firstly, we are supposed to encourage people to do Hashem’s Will and to discourage them from violating His wishes and instructions. Chanufah does the opposite: it causes the offender to continue his malevolent ways and dissipates his interest and enthusiasm to do teshuvah. Thus, it harms the sinner even more than anyone else. In addition, chanufah encourages other people to respect and emulate the evildoer’s nefarious deeds. Furthermore, by providing inappropriate value to the misdeed, it also causes chillul Hashem, desecrating Hashem’s Holy Name. Someone who flatters an evildoer demonstrates that he is more concerned not to offend the sinner than he is about being disrespectful to Hashem, which is an even bigger chillul Hashem (Tosafos, Sotah 41b s.v. oso).

Distorting the Torah

There is yet another reason why chanufah is prohibited: because it falsifies the Torah (Shu’t Igros Moshe, Orach Chayim 2:51). The mechanef has told the sinner that what is prohibited is permitted, which, in itself, is a very severe transgression. The Maharshal (Yam shel Shelomoh, Bava Kama 4:9) proves that to falsify or distort the Torah is a sin on the level of yeihareig ve’al ya’avor, for which one is required to give up his life rather than violate it – which means that it is more serious than transgressing almost any of the other mitzvos, and it is certainly more serious than desecrating Shabbos or consuming non-kosher food. Falsifying the Torah is equivalent to denying the entire Torah, which is why one is required to sacrifice one’s life, rather than misrepresent a Torah truth. Thus, the most extreme situation of chanufah, in which one tells a wrongdoer that it is permitted to violate the Torah, includes the serious prohibitions of chillul Hashem and denying the authenticity of the entire Torah.

While some authorities rule that one must endanger oneself rather than violate chanufah (Shaarei Teshuvah, 3:188), others contend that this is not required. According to the second approach, chanufah should not be treated more seriously than Shabbos, kashrus and most other Torah laws that are superseded in a situation of risk to one’s life (see Tosafos, Sotah 41b s.v. kol). Those that disagree understand that chanufah, which includes denying the authenticity of the entire Torah, merits this level of serious consideration (see Igros Moshe).

The story of Agrippas

To demonstrate how serious this prohibition is, the Gemara (Sotah 41b) shares with us the following narrative: King Agrippas (who reigned towards the end of the Second Beis Hamikdash) was an excellent ruler, highly respectful of the Gedolei Torah of his era and committed to the observance and spreading of Torah and mitzvos. Notwithstanding his many good qualities, calling himself “King” over the Jewish people violated halachah, since he was descended from gentile slaves, and the Torah states, lo suchal laseis alecha ish nachri asher lo achicha hu, “You may not place over yourselves a gentile who is not your brother” (Devarim 17:15). Agrippas realized that he was not permitted to be king. When Agrippas reached the words of the Torah where it prohibits appointing a king unless he is native Jewish, his eyes began to tear, for he realized that he, himself, was ruling in violation of this law. At that moment, the Sages present told him, “Don’t worry, Agrippas. You are our brother,” thus approving his reign, in violation of the Torah.

The Gemara says that the leaders of the Jews should have been destroyed for violating chanufah, and, at that moment, many catastrophic occurrences befell the Jewish people and many lives were lost. Granted that Agrippas was concerned about Torah and mitzvos, the halachah still forbade him from being king. Although the Sages were in no position to admonish him, it was forbidden to encourage his misdeed. Instead,they should have remained silent (Tosafos, Sotah 41b s.v. oso), which would have been understood as a respectful disapproval.

Levels of chanufah

Although the most obvious instance of chanufah is telling an evildoer that he has done nothing wrong, any action that encourages sinful deeds is included under the general heading of chanufah. Rabbeinu Yonah, in his monumental work Shaarei Teshuvah (3:187-199), explains that there are nine levels of chanufah. The highest level is, of course, telling an evildoer that his performing a sin is acceptable. The other categories are all instances where the mechanef does not praise the sin itself, but lessens the gravity of the sin in an indirect way. Let us see how this manifests itself.

Praising publicly

Honoring a malefactor violates chanufah, even when the mechanef says nothing to justify the wrongdoer’s misdeeds. Although, in this instance, the mechanef did not overtly encourage or condone the misdeed, praising a sinner as a “good person” implies that the sin is acceptable, which is chanufah.

For example, Shimon, president of the yeshivah, decides to make Mr. Wealthy, whose fortune was made in very scandalous ways, the Guest of Honor at its annual dinner, since Mr. Wealthy’s contacts can certainly help the yeshivah.

Some contemporary authors (Lerei’acha Kamocha, Volume 1, Page 102) contend that one violates the prohibition of chanufah even when the person who sinned is unaware that what he is doing is wrong, such as, he is uneducated about Judaism.

Complimenting a sinner

Another category is someone who praises an evildoer in private, although he is careful not to praise the offender in the presence of other people, so that they are not influenced by his wicked ways. For example, Levi knows that it is chanufah to introduce Mr. Scoundrel publicly as a superior individual, and therefore he is careful not to praise Scoundrel in front of others. However, in private, Levi tells Scoundrel what a great guy he is. This is also chanufah, because the sinner, hearing the flattery, feels no motivation to repent; after all, even Levi thinks he is righteous. The wrongdoer fails to comprehend that he needs to reevaluate his priorities and his deeds, and this error was encouraged by the mechanef.

Failure to protest

Rabbeinu Yonah lists several other categories of chanufah, most of which we will touch on briefly. One type of chanufah is when someone refrains from reprimanding evildoers when he has the opportunity to do so. Another, similar example is that someone who is in a position to protest a misdeed and fails to do so violates chanufah. These last examples of chanufah are all passive, rather than active, yet we see clearly why the lack of protest encourages sin.

Example: A group that calls itself Jewish is backing an initiative that is against what Torah stands for. Failing to protest that this is not Judaism constitutes chanufah.

The halachah requires us to rebuke people whom we see doing something wrong, which is the mitzvah called tochachah. This mitzvah applies only as long as it is possible that the wrongdoer may listen.

Rules of tochachah

The halachah is that a person who is reproving someone for sinful actions must do so in a way that shows that he truly cares about the offender. The Rambam (Hilchos Dei’os 6:7) writes that he should explain that he is helping the offender earn a greater share in olam haba. “One who sees his friend sinning or following a lifestyle that is not good has a mitzvah to influence him to return to the proper way and to inform him that he is harming himself… The one who rebukes must do so privately and in a pleasant manner and soft voice.”

Gad’s next-door neighbor is not observant. To bring the neighbor back to Yiddishkeit, Gad must show sincere care about his neighbor. Once the neighbor feels that Gad truly cares, the neighbor sees the beauty of a frum lifestyle. At this point, Gad can explain to his neighbor how beneficial it is to observe mitzvos.

Tochachah that will be ignored

However, the halachah is that when it is clear that a sinner will ignore reproof, one should not attempt to admonish him, as it says in Mishlei (9, 8): Do not rebuke a scoffer lest he come to hate you; rebuke a wise man and he will love you. To quote the Gemara, Just as it is a mitzvah to say something that will be heeded, it is a mitzvah to refrain from saying something that will be disregarded (Yevamos 65b).

Remaining present

Another type of chanufah is someone who remains present while evildoers sin. For example, Asher is sitting with a group of people who are spreading gossip, speaking loshon hora, using foul language; or, the group includes scoffers who deride Torah and mitzvos. Asher knows that this group will not listen to his admonition, so there is no mitzvah of tochachah. Asher wants to know whether he may remain sitting among them. The answer is that it is prohibited to remain in their presence, because this implies that he agrees with and accepts their behavior. Staying with them encourages the sinners to continue their nefarious activities; they rally support for their evil ways from his ongoing presence. Granted that it may be counterproductive to admonish them, Asher may not remain with them and must “express” his disapproval by removing himself.

Honoring when inappropriate

Still another category of chanufah is someone who is careful not to speak in a flattering way about a wrongdoer, but, in order to maintain peace, he treats the wicked person respectfully, the way one treats a wealthy individual because of his financial success. Although there is a halachic source that one should honor the wealthy (Eruvin 86a), one may not honor the wicked.

After mentioning this category of chanufah, Rabbeinu Yonah limits its application. When the wicked person is in a position of authority, one may demonstrate respect to him in the way that people honor powerful people, out of fear. However, although one may act respectfully, one may not praise the wicked person. Treating him with respect is permitted, since everyone realizes that the evildoer is being treated with honor only because circumstances require it. This is the meaning of the statement of the Gemara: it is permitted to flatter evildoers in this world (Sotah 41b).

Other authorities offer a different explanation of this Gemara, contending that one may flatter a malefactor because not doing so could be dangerous (Shu’t Igros Moshe, Orach Chayim 2:51).

Therefore, if Yissachar finds himself in a position where he must lobby a highly influential Jew who has distanced himself from his people, Yissachar must be careful to know exactly what he may say and what he may not.

An inappropriate appointment

One of Rabbeinu Yonah’s categories requires some explanation, since it does not fit the use of the word flattery, but fits well our definition of chanufah as misrepresenting or falsifying Torah. Rabbeinu Yonah explains that, when a highly-respected personality acts out of self-interest and appoints someone to a rabbinic position for which the appointee is not competent, this appointment meets the criteria for chanufah. Rabbeinu Yonah says that this misrepresents a Torah value because the appointment causes people to trust the appointee in a way that is unwarranted or to rely on his ability to rule on halachah. The result is a hindrance to proper Torah observance and the judicial system. Therefore, if Rabbi Dan appoints his son to a rabbinic position for which the son is not qualified, this constitutes chanufah. All of these qualify as chanufah because the result is a misrepresentation of the real essence of Torah.

At this point, I would like to address the last of the questions asked above:

Chani asks: “An old classmate of mine has fallen far from Yiddishkeit, unfortunately, and I believe that I am the only frum friend with whom she still keeps contact. Tragically, she recently became engaged to a non-Jew, and she desperately wants me to attend the engagement party. She knows that I do not approve of this relationship. May I attend, because I am concerned that, should I not show up, she will cut off her last contact with anything Jewish?”

Chani may not attend the party, since this is clearly endorsing the engagement and allowing the classmate to delude herself into thinking that what she is doing is not that bad.

Rav Moshe’s teshuvah

Having explained the rules of chanufah as categorized by Rabbeinu Yonah, I will present a responsum of Rav Moshe Feinstein (Shu’t Igros Moshe, Orach Chayim 2:51) on the topic. The question pertained to a Jewish community that had received much benefit, both communally and individually, from a Jewish physician who was married to a gentile woman. The community had never given the physician an aliyah to the Torah or any other honor, but the rabbi of the community felt that it would be beneficial to honor the physician with opening and closing the aron kodesh. Rav Moshe notes that, although there are halachic issues involved in giving an aliyah to someone who does not observe Torah, there is no inherent halachic problem with having him open or close the aron kodesh. However, there is a potential halachic issue with whether giving a sinner this honor violates the prohibition against chanufah. Since the individual involved is flagrantly and publicly violating a basic aspect of Torah, honoring him in any way might violate the Torah.

Rav Moshe contends that, from the Gemara’s cases of chanufah, we see that the prohibition of chanufah includes only stating that something is permitted when it indeed is forbidden or praising an evildoer excessively. However, to praise an evildoer for the chesed he performs for the community is permitted. Rav Moshe even permits exaggerating a bit what this individual does in order to assure his future help and cooperation.

As a result, he rules that one may honor the intermarried physician with opening the aron kodesh, since this does not imply that we are accepting his objectionable lifestyle.

Conclusion

Many people feel that complimenting someone for what they have done is polite. We now realize that praising people is not always permissible, and that honoring someone may also not be the correct thing to do. Obviously, questions as to specific applications of this halachah should be referred to a posek.

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May I Eat before I Daven?

As the Gemara teaches, the source in this week’s parsha teaches that Yaakov introduced the Maariv prayers…

Question #1: Reuven calls me: I have not been well, and I need to eat something shortly after awaking. On weekdays, I go to shul to daven when I wake up and I can wait to eat until after davening, but I do not have this option on Shabbos. What should I do?

Question #2: Ahuva asks: It is difficult for me to wait for Kiddush until my husband returns from shul. May I eat something before he arrives home?

Question #3: Someone told me that a woman may not eat in the morning before she davens, but I remember being taught in Bais Yaakov that we may eat once we say the morning berachos. Is my memory faulty?

Answer:

The Gemara (Berachos 10b) states: “What do we derive from the verse, You may not eat over blood (Vayikra 19:26)? That you may not eat (in the morning) before you have prayed for your ‘blood’… The verse states, in reference to someone who eats and drinks prior to praying: You have thrown me behind your body (Melachim 1 14:9). Do not read your body (in Hebrew gavecha), but your arrogance (gai’echa). The Holy One said: After this person has indulged in his own pride (by eating or drinking), only then does he accept upon himself the dominion of heaven!?”

The halacha that results from this Gemara is codified by all authorities. To quote the Rambam: “It is prohibited to taste anything or to perform work from halachic daybreak until one has prayed shacharis” (Hilchos Tefillah 6:4).

Would you like tea or coffee?

Although all poskim prohibit eating and drinking before morning davening, we find early authorities who permit drinking water before davening, since this is not considered an act of conceit (Rosh, quoting the Avi Ha’ezri; the Beis Yosef cites authorities who disagree, but rules like the Avi HaEzri). Most later authorities permit drinking tea or coffee, contending that this, also, is considered like drinking water, but the poskim dispute whether one may add sugar to the beverage. The Mishnah Berurah and others prohibit this, whereas the Aruch Hashulchan and other later authorities permit it. They are disputing whether adding sugar to the beverage promotes it to a forbidden beverage, or whether it is still considered water that one may imbibe before davening.

Hunger

The Rambam rules that someone who is hungry or thirsty should eat or drink before he davens, so that he can daven properly (Hilchos Tefillah 5:2).

Similarly, some authorities contend that, for medical reasons, anything may be eaten or drunk before davening. They explain that the Gemara prohibited only eating or drinking that demonstrate conceit, whereas whatever is done for medical reasons is, by definition, not considered arrogant (Beis Yosef, quoting Mahari Abohav). The Shulchan Aruch accepts this as normative halacha (Orach Chayim 89:3).

I will be hungry!

What is the halacha if someone is, as yet, not hungry, but he knows that he will be so hungry by the end of davening that it will distract him from davening properly. Is he permitted to eat before davening? This question impacts directly on Reuven’s question.

The answer to this question appears to lie in the following Talmudic discussion (Berachos 28b):

“Rav Avya was weak and, as a result, did not attend Rav Yosef’s lecture that took place before musaf. The next day, when Rav Avya arrived in the Yeshiva, Abayei saw Rav Avya and was concerned that Rav Yosef may have taken offense at Rav Avya’s absence. Therefore, Abayei asked Rav Avya why he had failed to attend the previous day’s lecture. After which the following conversation transpired:

Abayei: Why did the master (addressing Rav Avya) not attend the lecture?

Rav Avya: I was not feeling well and was unable to attend.

Abayei: Why did you not eat something first and then come?

Rav Avya: Does the master (now referring to Abayei) not hold like Rav Huna who prohibits eating before davening musaf?

Abayei: You should have davened musaf privately, eaten something and then come to shul.

We see, from Abayei’s retort, that someone who is weak should daven first and then eat, even if this means that he davens without a minyan. Based on this passage, several noted authorities rule that someone who will not be able to wait until after davening, and cannot find an early minyan with which to daven, should daven privately (beyechidus), eat and then attend shul in order to hear the Torah reading and fulfill the mitzvos of answering Kaddish and Kedusha (Ba’er Heiteiv 89:11; Biur Halacha 289; Da’as Torah 289 quoting Zechor Le’avraham; Shu”t Igros Moshe, Orach Chayim 2:28 at end of teshuvah). Thus, it seems that we can positively answer Reuven’s question: If he cannot wait until davening is over to eat, he should daven be’yechidus, make Kiddush and eat something, and then come to shul to answer Borchu, Kedusha, Kaddish and hear keriyas hatorah.

May a woman eat before Kiddush?

Once someone becomes obligated to recite Kiddush, he cannot eat or drink anything before reciting Kiddush. Let us now discuss Ahuva’s question: It is difficult for me to wait for Kiddush until my husband returns from shul. May I eat something before he arrives home?

Of course, Ahuva could recite Kiddush herself. To fulfill the mitzvah of Kiddush, she needs to eat something that fulfills the requirement of Kiddush bimkom seudah¸ a topic we will discuss a different time. However, Ahuva does not want to recite Kiddush, or does not want to eat something to accompany the Kiddush. Is there a halachic solution to permit her to eat or drink before Kiddush?

There are some authorities who suggest approaches to permit Ahuva to eat or drink before Kiddush. Here is one approach:

Although most authorities obligate a woman to recite the daytime Kiddush and prohibit her from eating before she recites Kiddush (Tosafos Shabbos 286:4, 289:3; Pri Megadim, Mishbetzos Zahav 289:1; Mishnah Berurah 289:6), this is not a universally held position. One early authority (Maharam Halavah, Pesachim 106, quoting Rashba) contends that women are absolved of the requirement to recite daytime Kiddush.  The reason is that the daytime Kiddush is not an extension of the mitzvah of evening Kiddush, but is to demonstrate that the meal is in honor of Shabbos, and this requirement does not devolve upon women.

Although this approach is not halachically accepted, some authorities allow a woman to rely on this opinion, under extenuating circumstances, to eat before reciting morning Kiddush (Shu”t Minchas Yitzchak 4:28:3).

When does a married woman become obligated to make Kiddush?

Rav Moshe Feinstein presents a different reason to permit a married woman to eat before Kiddush. He contends that since a married woman is required to eat the Shabbos meal with her husband, she does not become responsible to make Kiddush until it is time for the two of them to eat the Shabbos meal together, meaning after davening (Shu”t Igros Moshe, Orach Chayim 4:101\2). In Rav Moshe’s opinion, she is not yet obligated to make Kiddush, since the time for her meal has not yet arrived.

The Shemiras Shabbos Kehilchasah (Chapter 52, note 46), in the name of Rav Shelomoh Zalman Auerbach, disagrees with this opinion. Firstly, Rav Shelomoh Zalman Auerbach is unconvinced that she is halachically required to eat her meal with her husband. Furthermore, even assuming that she is, he disagrees that this permits her to eat before Kiddush.

If we do not follow the lenient approaches mentioned, when does a woman become obligated to recite Kiddush and is therefore no longer permitted to drink tea, coffee, and water? The Acharonim debate this issue, but explaining their positions requires explaining a different topic:

What must a woman pray?

All authorities require a woman to daven daily, but there is a dispute whether she is required to recite the full shemoneh esrei (I will call this the “Ramban’s opinion”), or whether she fulfills her requirement by reciting a simple prayer, such as the morning beracha that closes with the words Gomel chasadim tovim le’amo Yisrael (I will refer to this as the “Magen Avraham’s opinion”).

When may she eat?

According to the Ramban’s opinion that a woman is required to recite the full shemoneh esrei, she may not eat in the morning without first davening (see the previous discussion), whereas, according to the Magen Avraham’s opinion that she fulfills her requirement once she has recited a simple prayer or morning berachos, she may eat once she has recited these tefillos.

Some authorities rule that a woman becomes obligated to hear Kiddush as soon as she recites berachos, since she has now fulfilled her requirement to daven, and she may therefore begin eating her meals. According to this opinion, now that she has recited morning berachos, she may not eat or drink without first making Kiddush (Tosafos Shabbos 286:4, 289:3). This approach contends that, before she recites morning berachos, she may drink water, tea or coffee, but after she recites morning berachos she may not drink even these beverages without first reciting Kiddush.

There is another view, that contends that a woman can follow the same approach that men follow, and may drink water, tea or coffee, even after she recited berachos before she has davened (Pri Megadim, Eishel Avraham 289:4 as understood by Halichos Beisah page 204).

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

“Someone told me that a woman may not eat in the morning before she davens, but I remember being taught in Bais Yaakov that we may eat, once we say the morning berachos. Is my memory faulty?”

Many authorities contend that, although a woman should daven shemoneh esrei every morning, she may rely on the opinion of the Magen Avraham in regard to eating. Therefore, she may eat after reciting morning berachos. In many institutions, this approach was preferred, since it accomplishes that the tefillah that the girls recite is a much better prayer, and they learn how to daven properly. However, this does not necessarily tell us what she should do on Shabbos morning, and I refer you back to the earlier discussion about this issue.

Conclusion

Rav Hirsch, in his commentary to the story of Kayin and Hevel in Parshas Bereishis (4:3), makes the following observation: “Two people can bring identical offerings and recite the same prayers and yet appear unequal in the eyes of G-d. This is made clear in connection with the offerings of these brothers. Scripture does not say: ‘G-d turned to the offering by Hevel, but to the offering by Kayin He did not turn.’ Rather, it says: ‘G-d turned to Hevel and his offering, but to Kayin and his offering He did not turn.’ The difference lay in the personalities of the offerers, not in their offerings. Kayin was unacceptable, hence, his offering was unacceptable. Hevel, on the other hand, was pleasing, hence, his offering was pleasing.”

The same is true regarding prayer: the Shemoneh Esrei itself, the Elokai netzor leshoni addition, and the personal supplications that different people recite may appear identical in words, but they are recited with individual emotion, devotion and commitment. Tefillah should be with total devotion in order to improve ourselves, to enable us to fulfill our role in Hashem’s world.

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Conflict of Interest

The Torah teaches that Yitzchak loved Esav because ציד בפיו….

Question #1: Conflict of Interest

Does the Torah discuss a government official having a conflict of interest?

Question #2: Cash or Credit?

Is there any violation of shochad if someone receives a service that does not have a market value?

Question #3: Friend or Enemy?

Are you permitted to judge a case in which a friend of yours is one of the litigants? What about someone who davens in the same shul? Or someone who consistently rubs you the wrong way?

Introduction

There are three places where the Torah mentions the prohibition against accepting a bribe, once in parshas Mishpatim, a second time at the very beginning of parshas Shoftim and again in parshas Ki Savo. In parshas Mishpatim, the Torah states: “Do not accept a bribe, because bribery blinds those who see clearly and corrupts just words” (Shemos 23:8). In parshas Shoftim, the Torah states: “Do not pervert justice… do not accept a bribe, because bribery blinds the eyes of the wise and corrupts just words” (Devorim 16:19). And in parshas Ki Savo, the Torah states: “Cursed is he who accepts a bribe.” Thus, we see that not only is there a lo sa’aseh prohibition, mentioned twice in the Torah, for accepting a bribe, it is also accompanied by a curse, one that was declared by the entire people of Israel.

We all recognize that paying a judge to rule in one’s favor is forbidden and, in the contemporary world, can lead to fines, imprisonment or both, as well as a tarnished reputation. We will soon learn that what halacha prohibits under the category of the taking of shochad, bribery, is much more far-reaching than what anyone would consider bribery in today’s world. Virtually all cases that we would consider “conflict of interest,” which is a lesser crime in today’s world than straightforward bribery, are prohibited by the Torah as shochad. In other words, making a decision on the basis of a “conflict of interest” is just as forbidden in halacha as receiving a direct bribe on the matter. Both are severe Torah prohibitions; violating either invalidates the individual from being permitted to be a judge or even a witness, and both are included in the curse that the Torah metes out in parshas Ki Savo.

A very exclusive club

We see in Chazal that even minor reasons were considered sufficient for a judge to disqualify himself. The Gemara (Kesubos 105b) notes several instances in which great scholars excluded themselves from being judges:

1. Shmuel was crossing a stream, probably on some type of unsteady rope bridge (or, according to the Rambam, he was exiting a ferry), when a passerby extended a hand to steady him. Shmuel, realizing that the passerby was not someone he knew locally, inquired as to what brought the visitor to town. The passerby replied that he had a din Torah with someone.

Shmuel informed the visitor that, since he had assisted Shmuel on the rope bridge, Shmuel was excusing himself from being a judge in the case (Kesubos 105b). Shmuel pointed out that it is inappropriate to be a judge in any situation when the judge has a tendency to look at one side more favorably than the other. Note that there was no conflict of interest or any implied bribery in this case, since there is no indication that the service was rendered in anticipation of better treatment in beis din. Also note that Shmuel would not gain anything if he ruled in favor of the passerby or against him. From this we see how careful a judge must be to avoid a case where he may have a conflict of interest, even as little as a debt of gratitude for a minor favor, which might influence his decision.

According to the Rambam (Hilchos Sanhedrin 23:3), in this case, and the three cases I will be quoting next, the judge is invalid min hadin, whereas, according to Tosafos, these dayanim were permitted to judge the situations, but chose not to.

2. Ameimar was sitting as a judge, probably in some outdoor venue, when a feather landed on his head. A well-doer quickly removed the feather from Ameimar’s head. Ameimar asked him what brought him to beis din, to which he replied that he was waiting his turn for his own litigation. Ameimar then informed him that he, Ameimar, now did not consider himself objective enough to be the judge in the case, since the well-doer had performed a chesed for him. In this case, Tosafos rules that Ameimar was halachically permitted to be the judge, since we do not assume that such a small kindness would render it more difficult for the judge to maintain his objectivity. However, Ameimar withdrew himself from litigating, considering it difficult for him to judge the case objectively, since the well-doer had done him a favor.

3. Some spittle was lying on the floor in front of Mar Ukva, when a passerby saw and covered it. When Mar Ukva asked the passerby what brought him to town, he answered that he had some litigation. Mar Ukva then replied that he (Mar Ukva) could no longer serve as a judge in the passerby’s litigation, since the latter had helped him and he would be inclined to favor him.

At this point, we can address the second of our opening questions: Is there any violation of shochad if someone receives a service that does not have a market value?

The answer is we see that there certainly could be a violation, if it was done intentionally to influence the decision that a dayan will be making.

4. The sharecropper of Rabbi Yishmael the son of Rabbi Yosi paid his rent with a basket of fruit, brought every Friday. One time, he showed up with his fruit on Thursday, instead. When Rabbi Yishmael inquired why the rent was paid a day early, the sharecropper answered that he had some litigation to attend to, and since the beis din was open only on Monday and Thursday, he brought his rent money early, to save himself the trip.

Rabbi Yishmael was a judge in the beis din in this town. Notwithstanding that the sharecropper had paid a day early because of his own convenience and was completely forthcoming that he was not expecting any favors in the litigation as a result, Rabbi Yishmael notified the sharecropper that, because the payment was earlier than required, he was not accepting it. In addition, Rabbi Yishmael disqualified himself from judging the case. Instead, Rabbi Yishmael appointed two other scholars to serve in his place as the judges. (The commentators discuss why he replaced himself with two other judges, but answering that question takes us away from our topic.)

Rabbi Yishmael remained in the courtroom as a spectator. While the two parties were sparring with their claims and counterclaims, Rabbi Yishmael found himself thinking of legal arguments that the sharecropper could use – in other words, he felt himself reacting to the litigation as the sharecropper’s advocate, rather than as a bystander who could judge objectively. This, of course, justified Rabbi Yishmael’s earlier decision to withdraw from judging the case. In summary, he noted: “Those who accept bribes should have their bodies swollen. Look how I lost my objectivity, notwithstanding that I did not accept the early payment, and it was money that was legitimately owed me. How can anyone possibly expect to judge properly any matter in which he has a conflict of interest?”

The Gemara points out that bribery does not necessarily have to be cash, but can be a different form of benefit. It also explains that any time a judge receives benefit from one side in litigation, this creates a conflict of interest that distorts the judge’s objectivity and may disqualify him from rendering objective judgment.

Note that had the sharecropper not brought payment a day earlier, there would be no halachic problem for Rabbi Yishmael to judge the case, even though it involved a person who worked on his field.

Conflict of interest

At this point, let us discuss our opening question: Does the Torah discuss a government official having a conflict of interest?

Several major authorities rule that anyone with communal responsibility must be very careful not to receive any remuneration from an interested party in an issue that he is deciding (Pilpula Charifta, Sanhedrin, 3:17; Shu’t Chasam Sofer; Pischei Teshuvah, Choshen Mishpat 34:27; Aruch Hashulchan, Choshen Mishpat 9:1). This should also affect issues of conflict of interest when fundraising for political purposes.

Friend or enemy?

The Gemara (Kesubos 105b) states that a person should not be a judge for a case involving a close friend or an enemy. The rishonim dispute whether this law is true only when the party to the case is a very close friend or a true enemy (Tosafos ad loc.), or even if he is not his best friend or biggest enemy (Rambam, Hilchos Sanhedrin 23:6). The Rambam adds that the best situation is when the judge does not know either party.

It is permitted to be the judge for a case involving a business associate or a neighbor, provided the judge feels that he can be truly objective. If he feels a bias toward one side or the other, he should refrain from judging the case.

Paying a bribe

It is interesting to note that the violation of bribery applies only to the judge who receives the bribe. Unlike interest, where the Torah prohibits not only the lender from receiving interest, but also the borrower who pays interest with a specific lo saaseh¸ the individual who bribes a judge or official to provide him with a benefit to which he is not entitled violates only the Torah’s general prohibition of causing someone else to sin (lifnei iveir lo sitein michshol) [Tur and Shulchan Aruch, Choshen Mishpat 9:1].

Visual acuity

The Gemara makes a very interesting comparison regarding the foolishness of people. It is not uncommon for a person to expend copious sums of money on the possibility of finding a cure to alleviate some visual issues from which he is suffering. Yet, the same person will allow himself to have a conflict of interest, notwithstanding that he has blinded his ability to see the matter objectively (Kesubos 105a).

Poor judge

There is another situation in which someone should not be a judge because of a subtle conflict of interest. If a person always needs to borrow things and has nothing to lend in return, he is disqualified from being a dayan (Kesubos 105b), even if he has not yet borrowed anything. If the judge has something that he can lend when the lender needs it, then he (the judge) feels no outstanding obligation to that person. However, if he has nothing to lend him, he feels a sense of debt to the person who assisted him that makes it difficult for him to be objective when he is forced to judge him.

“If the judge is comparable to a king who has no need ever to borrow an item from someone else, he will succeed in holding up the world through proper justice” (Kesubos 105b, based on Mishlei 29:4). However, the opposite is true if the judge is poor. As the Gemara expresses it, he can be compared to a kohein who visits the silos of those who have recently brought in their harvest, in the hope that he will receive the gifts coming to the kohein because he is in the right place at the right time. Ultimately, having a dayan who is very poor may easily result in justice being skewed.

Salary?

The Gemara discusses whether the judicial practice of the amora Karna was acceptable according to halacha. Karna was not a salaried judge, but a Talmudic scholar whose livelihood came from smelling wine to determine whether it was beginning to sour. In order to judge a case, Karna would charge each litigant one sela (Kesubos 105a with Rashi). The Gemara, in discussing why Karna could charge this money, rules that payment for judicial services may fall under three categories, two of which are always forbidden, and the third of which is sometimes permitted. They are:

A. Bribery

Someone being paid for a favorable decision involves shochad, even when both litigants pay him. According to the Derisha (Choshen Mishpat 9:1), this means that both litigants paid the judge to be certain to rule correctly, if their argument is justified; yet, this is forbidden min haTorah, because it is still considered a form of shochad.

B. Wages to rule

The Mishnah (Bechoros 4:6) rules that a judge is forbidden to be paid money for the expertise of rendering a judicial decision, even when both litigants pay him equally (Kesubos 105a). This is forbidden because we are required to observe mitzvos without financial remuneration. This is a vast topic germane to many other areas of halacha, which we will leave for a different article.

C. Lost time

It is possible that the dayan is paid what is called sechar batalah, payment for the time he has lost while involved in the case. The Gemara’s conclusion is that if taking time off from his livelihood to judge the case caused him to lose money, the dayan is entitled to sechar batalah.

The Gemara chooses a couple of examples of this ruling. In addition to the above-mentioned case of Karna, another case it mentions was the practice of Rav Huna, who told the litigants that they should hire a workman who would take his (Rav Huna’s) place and water his fields while he was judging their case.

If it is unclear whether he suffered any loss, he should lechatchilah not collect sechar batalah, but if he received payment, the ruling is nevertheless valid. An example would be where it is possible, but uncertain, whether a customer will arrive while he is busy judging. Since it is uncertain that he loses anything by judging, lechatchilah he should not collect sechar batalah, but if he received payment, the ruling is nevertheless valid.

The Rambam emphasizes that he can receive only the amount that he is actually losing, and no more (Hilchos Sanhedrin 23:5).

The Rambam adds another condition to the case of sechar batalah: The dayan must take from both litigants, and when both of them are in front of him. This is to avoid anyone from thinking that the dayan is receiving illegitimate or inappropriate compensation (Kesef Mishneh).

In the contemporary world, the most common application of this principle is when a dayan is paid to be available to serve on a beis din, such that he can no longer seek employment or other income during the time he has reserved for a din Torah. The Gemara rules that whether this is permitted or not lechatchilah depends on whether he will definitely be losing money or not.

Here is an example which is certainly permitted. A dayan I know does well-paying consultancy work. He instructed the beis din that sought his availability that he usually earns a certain amount per hour, and that he would definitely lose this amount of money while preoccupied with a din Torah. In this case, he is entitled to compensation from the two litigants, provided the two sides pay him equally. According to the Rambam, the two litigants should pay him in front of each other.

To avoid any appearance of impropriety, the proper approach is that a Jewish community hire dayanim and provide appropriate salaries. To quote the Shulchan Aruch, “It is a requirement on the Jews to provide their judges with a livelihood” (Choshen Mishpat 9:3). The community is permitted to accept private donations for this purpose, without concern that the dayanim will favor those who made major donations for this cause, which is, after all, their salaries.

It is preferred that all fundraising for these salaries be at the beginning of the year for the coming year, to avoid any conflict of interest (Tur and Rema, Choshen Mishpat 9:3). If the funds are raised at the beginning of the year, then the money is available when dinei Torah occur without the donors having direct influence.

Still, an individual judge who feels a bias in favor of one of the litigants, because of benefits that he has received in the past or because the litigant is a prominent member of the community, should excuse himself from judging the situation. A similar halacha is true if a litigant is a prominent member of his shul – the dayan or rav should withdraw from being the dayan if he feels that he cannot judge the matter objectively.

Conclusion

As we now see, the details of not taking shochad are far more extensive than what we usually call “bribery” or even “conflict of interest.” The Chasam Sofer rules that when the membership of a community or congregation votes to elect a rabbi, the members have the halachic status of dayanim and must be concerned about any issue of shochad. They must be careful that they vote for whom they think will be best for their community and not because of a personal interest.

This mitzvah helps us highlight the importance of being responsible for other people and for their property and rights. We should pray to be successful messengers, whenever we are entrusted with carrying out Hashem’s will for our community.

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Performing a Proper Hesped

Question #1: I have heard eulogies where the speaker seemed more interested in demonstrating his ability as a speaker than in commemorating the departed. Is this the proper way to eulogize?

Question #2: Someone told me that sometimes one obeys the request of a person not to be eulogized, and sometimes one may ignore it. How can this be?

Question #3: Is it true that one may not schedule a hesped within thirty days of a Yom Tov?

Our Parsha

“And Sarah died in Kiryas Arba, which is Hebron, in the Land of Canaan. And Avraham came to eulogize Sarah and to cry over her.” This is the earliest of many verses the Gemara cites when discussing the mitzvah of eulogizing. People often avoid writing halachic articles about hespedim in favor of more exciting or popular topics, leaving many unaware that there is much halachah on the subject. Are there rules to follow when organizing or delivering hespedim? Indeed, there are many, as we will soon see.

The Mitzvah

Most authorities do not count performing a eulogy as one of the 613 mitzvos of the Torah. Indeed, most consider it only a rabbinic mitzvah. Nonetheless, the hesped accomplishes the Torah mitzvah of ve’ahavta le’rei’acha komocha, loving one’s fellow as oneself, since a properly delivered hesped is a very great chesed. To quote the Rambam: “It is a positive mitzvah of the Sages to check on the ill, to console mourners… to be involved in all aspects of the burial… to eulogize… Even though all of these mitzvos are rabbinic, they are all included in the mitzvah that one should love one’s fellow as oneself. Anything that you want someone to do for you, you should do to someone else who also keeps Torah and observes mitzvos” (Hilchos Aveil 14:1).

As the following passages demonstrate, our Sages strongly emphasized the importance of performing this mitzvah properly:

“When a Torah scholar passes away, the entire nation is obligated in his eulogy, as it states, ‘and Shmuel died, and all of Israel eulogized him’” (Mesechta Kallah Rabbasi Chapter 6).

“Whoever is idle in carrying out the hesped of a Torah scholar does not live long” (Yalkut Shimoni, Yehoshua 35).

“Whoever is idle in carrying out the hesped of a Torah scholar deserves to be buried alive” (Shabbos 105b)!

“A voice from above declared, ‘Whoever was not idle in participating in Rabbi Yehudah Hanasi’s eulogy is assured of life in the World to Come” (Koheles Rabbah 7).

“If someone cries upon the passing of an adam kasher (a halachically observant person) Hashem counts his tears and then stores them (Shabbos 105b).”

From this we see that the responsibility of hesped applies both to the person saying the eulogy and to those in attendance, and that this obligation sometimes applies to each individual. Furthermore, we see that the reward for fulfilling this mitzvah properly is very significant, both physically and spiritually, and that the eulogy and the crying associated with mourning are both highly important.

A “Kosher” Person

Above, I cited the statement: “If someone cries upon the passing of an adam kasher, Hashem counts his tears and then stores them.” I translated adam kasher as a halachically observant person.

Who qualifies as an adam kasher?

The rishonim discuss this question. Although the Rosh (Moed Katan 3:59) notes that his rebbe¸ the Maharam of Rottenberg, was uncertain what the term means, he himself concluded that it refers to someone who observes mitzvos properly, even if the person is not a talmid chacham and one sees nothing particularly meticulous about his religiosity. The Shulchan Aruch follows this definition.

Others explain that this is not enough to qualify as an adam kasher. Rather, the title applies to someone who, in addition to observing mitzvos properly, also pursues opportunities to perform chesed (Shach, Yoreh Deah 340:11, quoting Rabbeinu Yonah, Ramban and Bach). According to either approach, one should cry at the funeral of an adam kasher.

What is a proper hesped?

“It is a great mitzvah to eulogize the deceased appropriately. The mitzvah is to raise one’s voice, saying about him things that break the heart, in order to increase crying and to commemorate his praise. However, it is prohibited to exaggerate his praise excessively. One mentions his good qualities and adds a little… If the person had no positive qualities, say nothing about him (Shulchan Aruch, Yoreh Deah 444:1).” (I will soon discuss why one may exaggerate “a little bit,” even though, it would seem,a small lie is also a falsehood.) The eulogy should be appropriate to the purpose and extent of the tragedy. For example, one should eulogize more intensely for a young deceased than for an older one, and more for someone who left no surviving descendants than for someone who had children (Meiri, Moed Katan 27b). Also, the crying of any hesped should not be to excess (Meiri, ad loc.).

In summation, we see that the purpose of a hesped is to cause people to cry over the loss of a Jew who observed mitzvos properly. On the other hand, eulogizing inappropriately is sinful.

At this point, we can answer the first question: “I have heard eulogies where the speaker seemed more interested in demonstrating his ability as a speaker than in commemorating the departed. Is this the proper way to eulogize?

Despite its frequency, such behavior is obviously wrong. I discovered that this sin of eulogizing in non-accordance with halachah, such as speaking for one’s own self- aggrandizement or exaggerating excessively, is so serious that in some places there was a custom to never eulogize and to forgo the mitzvah altogether, despite its importance (see Gesher Hachayim 1:13:4).

Why Do We Eulogize?

The Gemara (Sanhedrin 46b) raises a halachic question: Do we eulogize out of respect for the deceased, or in order to honor the surviving family members? In other words, is the chesed of this mitzvah due to the posthumous dignity granted to the departed, or is it due to its inspiring people to realize the extent to which the surviving family members have been bereaved? The Gemara devotes a lengthy discussion in proving which option is correct.

Doany variations in observance result from this question?

The Gemara notes two such differences:

No Hespedim for Me!!

I. What happens if a person requests that no one eulogize him?

If the purpose of a eulogy is to honor the deceased, the deceased has a right to forgo the honor and request that no eulogies be recited. Since the hespedim are in his/her honor, he/she has the right to forgo the honor and we respect this request. However, if the purpose of a eulogy is to honor the surviving relatives, a request of the deceased does not forgo the honor of the survivors, and we will eulogize him/her anyway, if the family so desires.

Paying for a Speaker

II. A second halachic difference resulting from the above question (whether the mitzvah is to respect the deceased or to honor the surviving family members) is whether one may obligate the heirs to pay for the eulogy.

In many circles and/or eras, it is or was a common practice to hire a rabbi or other professional speaker to provide the eulogy. May one hire such a speaker and obligate the heirs to pay his fee? If the mitzvah is to honor the deceased and hiring a professional speaker is standard procedure, then one can obligate the heirs to hire a speaker, just as they are required to pay for the funeral. If eulogizing is for the sake of the bereaved, one cannot obligate them to pay for professional eulogizers if they prefer to forgo the honor.

The Gemara rallies proof from this week’s parsha that the mitzvah is in honor of the deceased. As the pasuk clearly mentions, Avraham Avinu was not present when his wife Sarah died. The Gemara asks why did they wait until Avraham arrived to eulogize her. If the reason for the hesped is indeed to honor the living, Sarah should not have been left unburied until Avraham arrived. On the other hand, if the mitzvah is to honor the deceased, then Sarah was left unburied so that Avraham could honor her with his hesped.

Although the Gemara rejects this proof, it ultimately concludes that the purpose of a hesped is to honor the deceased. Therefore, if the deceased requested no eulogies, we honor his/her request, and heirs are obligated to pay for eulogies, where appropriate.

Pre-Torah

You might ask, how can we derive halachos from events that predate the Torah? Didn’t the mitzvos change when the Torah was given?

The answer is that since this mitzvah fulfills the concept of ve’ahavata le’rei’acha kamocha, love your fellow as yourself, we can derive from its mode of performance whether its purpose is to honor the deceased or, alternatively, the surviving family members.

Exaggerate a little

The hesped should be appropriate to the deceased; one may exaggerate very slightly (Rosh, Moed Katan 3:63). You might ask, how can any exaggerating be permitted? Isn’t the smallest exaggeration an untruth? What difference is there between a small lie and a big one?

The answer is that there is usually a bit more to praise about the person than we necessarily know, so that, on the contrary, adding a bit makes the tribute closer to the truth (based on Taz, Yoreh Deah 344:1).

Ignoring a Request

I mentioned above that the Gemara concludes that if the deceased requested no eulogies, we honor his/her request. However, this ruling is not always followed. When the Penei Yehoshua, one of the greatest Torah scholars of the mid-eighteenth century, passed away, the Noda Biyehudah eulogized him, even though the Penei Yehoshua had expressly instructed that no eulogies be recited. How could the Noda Biyehudah ignore the Penei Yehoshua’s express request?

The answer, as explained by the Noda Biyehudah’s disciple, is that for a gadol hador to be buried without proper eulogy is not simply a lack of the deceased’s honor, which he has a right to forgo, but also a disgrace to the Torah. Even though a talmid chacham may (in general) forgo the honor due him as a Torah scholar (talmid chacham shemachal al kevodo, kevodo machul [Kiddushin 32b]), this applies only to forgoing honor. He cannot allow himself to be disgraced, since this disgraces not only him but also the Torah itself (Shu”t Teshuvah Mei’ahavah, Volume I #174; see also Pischei Teshuvah, Yoreh Deah 444:1).

We now understand why there are times when one obeys the request of a person to omit his hesped, and times when one may ignore it. Usually, we obey his/her request because of the general principle retzono shel adam zehu kevodo, the fulfillment of someone’s desire is his honor. However, if a gadol hador requests omission of eulogies, and major authorities consider this a breach of respect for the Torah itself, they may overrule the gadol’s request out of kavod for the Torah. (Of course, this implies that the departed gadol felt that the absence of hesped would not be a disgrace to the Torah, and that his halachic opinion is being overruled.)

We now address the third question raised above: Is it true that one may not schedule a hesped within thirty days of a Yom Tov?

Hesped before Yom Tov

The Mishnah (Moed Katan 8a) forbids scheduling a hesped within thirty days before Yom Tov for someone who died over thirty days before Yom Tov (as explained by Rosh ad loc. and Shulchan Aruch Yoreh Deah 447:1). What is wrong with scheduling this hesped, particularly since performing a proper hesped is such a big mitzvah?

The Gemara cites two reasons for this ruling, both explaining that some form of Yom Tov desecration may result from such a eulogy. Rav (according to our version of the text) explained the reason with an anecdote:

“A man once saved money in order to fulfill the mitzvah of aliyah la’regel, traveling to the Beis Hamikdash for Yom Tov. A professional eulogizer then showed up at his door and convinced the wife that her recently departed relative deserved another eulogy. She took the money her husband had saved for aliyah la’regel and gave it to the eulogizer. (This indicates that ambulance chasing is a time-hallowed profession.) At that time, Chazal decreed that one should not make a post-funeral hesped during the thirty day period before Yom Tov.”

The Gemara then quotes Shemuel, who cited a different reason for the ban: Usually, thirty days after someone’s death, he or she is sufficiently forgotten for people to not discuss the death during Yom Tov, which would diminish the festival joy. However, performing a eulogy during these thirty days refreshes people’s memories, and as a result, they discuss the passing during Yom Tov and disturb the Yom Tov joy (Moeid Katan 8b).

The Gemara notes that there is a practical difference between the two approaches. According to the first approach, our concern only applies if someone hires a professional speaker, and there is no stricture against conducting voluntary eulogies. However, according to Shemuel, one may not conduct even an unpaid eulogy, since this may revive the loss for the close family and result in a desecration of Yom Tov.

Contemporary Problem or Not?

Some raise the following question: Why doesn’t the Gemara point out yet another difference that results from the dispute? According to the first approach, the prohibition would only exist when the Beis HaMikdash stood and there was a mitzvah of aliyah la’regel. Today, however, when we unfortunately cannot fulfill this mitzvah, one should be permitted to hire a professional speaker to eulogize within a month of Yom Tov even after the funeral (Ritz Gayus, quoted by Ramban and Rosh). Obviously, according to Shemuel’s approach the same concern exists today that existed when the Beis Hamikdash still stood. Yet the Gemara does not mention such a halachic difference between the two opinions.

The Ramban explains that, indeed, even the first opinion agrees that the prohibition exists also today. Since the story mentioned in the Gemara happened during the time of the Beis Hamikdash, the Gemara cites a case of someone saving up for aliyah la’regel. However, the same idea applies to any funds that are to be used for Yom Tov. Thus, even though we have no Beis Hamikdash, the reason for the prohibition still applies, since celebrating Yom Tov in general is an expense people save for in advance. Thus, the concern still exists that in order to pay for the eulogy one might dip into one’s Yom Tov savings.

Does this law apply even within thirty days of Rosh Hashanah, or only before the festivals of Sukkos, Pesach, and Shavuos?

Since the Gemara mentions that the person spent the money set aside for aliyah la’regel, a mitzvah that applies only to Sukkos, Pesach, and Shavuos, this implies that our concern is only about the special Yom Tov expenses associated with the three regalim festivities, and not Rosh Hashanah (Yeshuos Yaakov, Orach Chayim 547:1).

Eulogizing Children

Does one recite eulogies for children?

Theoretically, one could argue that since the purpose of a hesped is to honor the deceased, perhaps children do not require this type of honor. Nevertheless, the Gemara states that one does perform a eulogy for children of a certain age.

For which age does one perform a hesped?

 “Rabbi Meir, quoting Rabbi Yishmael, said that the children of poor people should be eulogized when they are only three years old, whereas the children of wealthy people are eulogized only if they are five. Rabbi Yehudah quoted Rabbi Yishmael differently: the children of poor people at five, and the children of wealthy people at six. The halachah is according to the last opinion quoted (Moed Katan 24b).

Both opinions agree that the age is earlier for the child of a poor family than for the child of a wealthy family. What is the reason for this difference?

Rashi explains that a poor person, who has nothing in the world but his children, suffers the loss of his children more intensely and the need for a hesped is greater. One might challenge that explanation, since the hesped is for the honor of the departed, and therefore what difference does it make if the family suffers more? The hesped is not for their benefit, but to honor the departed. I have not found this question discussed, although one later authority notes that the custom (at least in his time and place) was not to eulogize children at all (Beis Hillel to Yoreh Deah 444:4).

Conclusion

The Torah begins and ends by describing acts of chesed that Hashem performed, the last one entailing His burying of Moshe Rabbeinu. Our purpose in life is to imitate Hashem in all activities, until our personality develops to the point that we instinctively behave like Hashem. Fulfilling the mitzvah of hesped correctly, whether as a speaker or as a listener, develops our personality appropriately,and thus fulfills another highly important role in our Jewish lives.

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Basar Bechalav

In this week’s parsha, Avraham Avinu serves his guests milchig and then fleishig…

Question #1: The Case of the Desperate Chef!

“I am frantically looking for a job. May I work in the kitchen of a KFC (Kentucky Fried Chicken)? What if I have to flip cheeseburgers?”

Question #2: The Last Lapp

“I am in northern Norway, herding reindeer, and I want to know whether doe milk is kosher and milchig?”

Question #3: May I Smoke?

“May I smoke meat and dairy together?”

Introduction:

In three places the Torah teaches lo sevashel gedi bachaleiv imo, “Do not cook a kid in the milk of its mother.” We all know that halacha prohibits eating milk and meat together and requires waiting after eating meat, before eating dairy. These latter are prohibited only miderabbanan, unless the meat and milk were cooked together.

Three and over

The Gemara (Chullin 115b) notes that the thrice mentioning of the Torah’s prohibition can be violated three different ways, by (1) cooking, (2) eating the cooked milk-meat mixture or by (3) benefiting from this mixture.

Although we should be and are careful to observe all details of halacha, whether obligated min haTorah or miderabbanan, we are required to know whether a particular observance is Torah law or is only a rabbinic injunction (see Avos Derabbi Nosson Chapter 1:7 with commentary of Binyan Yehoshua). In the case of basar bechalav, there is an additional reason to know whether something is prohibited min haTorah or because of rabbinic injunction. The prohibitions against cooking basar becholov and benefiting from it apply only to meat and milk that violate the law min haTorah. When the meat or the milk is prohibited because of a rabbinic injunction, the prohibition is limited to consumption of the product, not to cooking or benefiting from it (Shulchan Aruch, Yoreh Deah 87:3; Rema, Yoreh Deah 87:1 and commentaries in both places; cf. Yam shel Shelomoh, Chullin, 8:100, who disagrees, but whose opinion is not accepted by the later authorities). Please bear in mind that, as always, the purpose of our article is to educate, and not to pasken; that is the responsibility of each individual’s rav or posek.

Therefore, if meat and dairy were mixed together when cold, there is no prohibition of benefiting from the product. For this reason, it is not a violation of the law of benefiting from basar becholov to sell bagged pet food, even when it contains both meat and dairy products, since they are not cooked together, but mixed together at room temperature.

We will soon see that there is much halachic discussion as to which animal species are included in the prohibition, both min haTorah and miderabbanan, and which types of food preparation or cooking are included. Most of these laws are derived from the unusual way that the written Torah teaches this mitzvah.

When teaching about most ma’achalos asuros, prohibited food items, the Torah usually states, in a very straightforward way, that something “may not be eaten.” In the instance of basar becholov, the Torah does not say this, but simply commands not to cook kid’s meat in its mother’s milk. Therefore, we derive that only meat and milk “cooked” together is prohibited min haTorah, and only from species similar to goats.

Fowl play

There is a dispute among tanna’im whether the prohibition of basar becholov applies only to mammals or also to fowl. The conclusion is that the Torah prohibition of basar becholov does not apply to fowl, since they never have any type of “mother’s milk.” Milk is limited to mammals, not to avian creatures. Nevertheless, according to most tanna’im, Chazal prohibited consumption of milk and poultry. According to one tanna, Rabbi Yosi Hagalili, it is permitted, even miderabbanan, to eat milk together with poultry, even if they are cooked together (Chullin 116a). In his opinion, you may cook and serve your favorite chicken-in-cheese-sauce recipe. We have Talmudic statements that demonstrate that, in the era of the Mishnah, there were still communities that permitted eating poultry cooked in milk (Shabbos 130a; Yevamos 14a; Chullin 116a). However, since the time of the Gemara, Rabbi Yosi Hagalili’s opinion is not accepted, so eating chicken prepared this way is prohibited, and the pots and other equipment used to prepare and serve poultry cooked in milk become treif and require kashering to return them to kosher use.

The desperate chef!

At this point, let us examine the first part of our opening question: “I am frantically looking for a job. May I work in the kitchen of a KFC (Kentucky Fried Chicken)?”

There is a kashrus issue here: KFC’s breading includes dairy ingredients. Several years ago, a kosher branch of KFC was opened in Israel and required a specially formulated breading to be certified kosher and pareve. (The breading mix manufactured for KFC’s other locations was kosher and dairy, although we well understand why the company never requested kashrus certification for it.)

Since consuming poultry cooked with dairy is prohibited only miderabbanan, it is permitted to cook poultry with dairy. However, there is another halachic issue here — it is prohibited lechatchilah to seek earnings from foodstuffs prohibited min haTorah, such as non-shechted poultry. I would suggest that Desperate seek alternative employment better suited to a nice Jewish boy.

Non-kosher species

Since the Torah describes the prohibition as referring to “a kid in the milk of its mother,” the halacha is that only kosher species are included in the prohibition, since “kid,” gedi in Hebrew, usually means only baby sheep and baby goats, although, upon occasion, the word can refer also to calves (Chullin 113b).

Where the deer and the antelope roam

Reindeer are a kosher species and are milked in places where they are herded and raised as cattle, such as in northern Europe, including Lapland and northern Scandinavia. The Torah prohibition of basar becholov is limited to eating the flesh (also known as the meat) of a kosher animal that is categorized as a beheimah that was cooked in the milk of a beheimah, but does not include either the milk or the meat of a chayah. When either the meat or the milk is of a chayah, the prohibition to consume the mixture is only miderabbanan.

It is difficult to define the differences between beheimah and chayah. Although we know that beheimah includes cattle and sheep, whereas chayah includes deer and antelope, the common definition of beheimah as “domesticated kosher species,” and chayah as “beast,” “non-domesticated” or “wild species” is not halachically accurate. For example, reindeer, which qualify as chayah,are domesticated, whereas wisents, Cape buffalo, bighorn sheep and Dell’s sheep, none of which is domesticated, are probably varieties of beheimah.

A more accurate description of beheimah is a genus or category in which most common species qualify as livestock, and chayah is a genus or category in which most common species are usually not livestock.

The halachic definitions of beheimah and chayah are dependent on the type of horn or antlers that the animal proudly displays. However, the terminology used by the Gemara to explain this is subject to disputes among the rishonim, and, therefore, the accepted halachic practice is to treat any species of which we have no mesorah whether it is a chayah or a beheimah as a safek in both directions (see Shach, Yoreh Deah 82:1 and commentaries thereon). This is why bison (American buffalo) is treated with the stringencies of both beheimah and chayah, notwithstanding that its horns seem to fit the description of a beheimah. Don’t cook your bison burgers in milk!

Last Lapp

At this point, we can address the next of our opening questions: “I am in northern Norway, herding reindeer, and I want to know whether doe milk is kosher and milchig?”

The answer is that it is not milchig min haTorah, but miderabbanan it is considered milchig. Therefore, a Jew may not eat reindeer venison cooked in milk, nor may he eat beef, veal or lamb cooked in reindeer milk. However, it is permitted to cook meat with reindeer milk or cheese, or cook reindeer venison with cow’s, sheep’s or goat’s milk or cheese. It is also permitted to benefit from any of these preparations.

So our frum Lapp may cook and sell venison cooked in reindeer milk, if he shechted the reindeer first. If there is a market for such products in Lapland, perhaps Desperate should be in touch with him! But, remember that a Jew may not eat this product, because of rabbinic injunction.

Cheese

Since we mentioned cheese, I will add that, according to most authorities, cow’s, buffalo’s, sheep’s and goat’s cheese are milchig min haTorah. There is a minority opinion that holds that, just as lactose, a dairy by-product, is milchig only miderabbanan (a topic upon which I have written a different essay), so cheese is, also, milchig only miderabbanan. However, the vast majority of later authorities reject this position (see Yalkut Yosef, Isur Vaheter, Volume III, page 114).

Marinating

As I mentioned above, the prohibitions of eating cold meat and milk together or eating dairy shortly after consuming meat are only miderabbanan. The prohibition of lo sevashel gedi bachaleiv imo is violated min haTorah only by cooking meat and dairy together or by eating meat and dairy that were previously cooked together.

There are many methods of making food edible and very tasty that do not use heat, including salting, pickling and marinating. Preparing food this way causes the flavors of the different ingredients to blend together, which halacha calls beli’ah. When one ingredient is, on its own, non-kosher, everything salted, pickled or marinated together has now become non-kosher. If the kashrus prohibition is min haTorah, such as, meat that was not shechted, non-kosher fat (cheilev), blood, or non-kosher species, the other food that was salted, pickled or marinated together has also become non-kosher min haTorah.

However, since lo sevashel gedi bachaleiv imo includes only cooking meat and milk together, there is no prohibition to marinate or salt meat and milk together. The product manufactured this way may not be eaten, but only because of a rabbinic injunction (see Nazir 37a; Pesachim 44b). Furthermore, there is no prohibition, even miderabbanan, in manufacturing or in benefiting from this mixture (Rema, Yoreh Deah 87:1).

Grilling

At this point, we can examine the second part of Desperate’s question, which opened our essay. “What if I have to grill cheeseburgers?” These products are not cooked in liquid, but are grilled. Is grilling, frying or broiling included in the Torah violation of cooking milk and meat together?

From the way Rashi and Tosafos explain the passage of Gemara in Sanhedrin 4b, it appears that frying dairy and meat together is not prohibited min haTorah. There is also strong evidence that the Ran (Commentary to Rif, Chullin, Chapter 8, on the Mishnah 108a c.v. Tipas chalav) held a similar, if not identical, approach. If this opinion is halachically correct, Desperate could work in a restaurant that uses kosher meat to make its cheeseburgers.

However, many authorities conclude that cooking basar becholov using any type of heat is prohibited min haTorah (Pri Chadash, Yoreh Deah, 87:2; Peleisi 87:2; Chachmas Adam 40:1). According to this approach, grilling cheeseburgers will land Desperate in hot water.

Other prominent authorities rule that consuming basar becholov prepared in these ways is prohibited only by rabbinic injunction (Maharam Shiff (commentary, end of Mesechta Chullin; Pri Megadim, introduction to Basar Bechalav, s.v. Vehinei). And then, there are some authorities that draw distinctions among the various methods of cooking with heat. For example, Rav Yaakov Reisch, a very prominent early eighteenth-century posek, rules that roasting (which presumably includes broiling and grilling) is prohibited min haTorah, but frying is not (Soles Lamincha, Klal 85:3). This approach is based on his analysis of the pesukim and the passages of the Gemara, but without explaining any reason for the distinction, other than the usage of the word bishul. (See also Shu’t Chasam Sofer, Yoreh Deah #97, who has yet another approach to the topic.) Other prominent authorities reach the same conclusion (Pri Megadim, Mishbetzos Zahav 87:1). Among the late authorities, this issue is left as an unresolved dispute. Therefore, the halachic assumption is that we should be machmir in all of these disputed areas.

May I smoke?

At this point, we can explore the third of our opening questions: “May I smoke meat and dairy together?”

To the best of my knowledge, smoking meat and dairy is not addictive, contains no nicotine, and does not cause emphysema. The question is whether it violates the laws of basar becholov. In answer to the halachic question, it appears to have been discussed in a passage of Talmud Yerushalmi (Nedorim 6:1): “The rabbis of Kisrin asked: What is the law of smoked food, in regard to the prohibition of bishul akum? Concerning cooking on Shabbos? What is its law regarding mixing meat and milk together?” The passage of Yerushalmi then changes the subject, without ruling on any of the three questions, something not unusual in the Talmud Yerushalmi.

Based on this unresolved question, the Rambam (Hilchos Ma’achalos Asuros 9:6) appears to rule that the issue is treated as a safek, a doubt, with the following conclusions: When our issue [of whether something is considered cooking] is a halacha that is min haTorah, we rule stringently. However, someone who violated this act would not be punished, since it remains unresolved whether this is indeed prohibited min haTorah. However, when the issue is a rabbinic question, we rule leniently and do not consider smoking to be cooking.

The Shulchan Aruch (Yoreh Deah 87:6) follows the same approach as the Rambam. Since the issue of whether it is permitted to smoke dairy and meat together is of Torah law, we rule stringently and forbid it.

The Pri Chadash (Yoreh Deah 87:2,3) and the Gra (Yoreh Deah 87:13) conclude that, although the Yerushalmi passage in Nedorim quoted above did not render a decision whether smoking qualifies as cooking or not, a passage of Talmud Yerushalmi in mesechta Shabbos does conclude that smoking is considered cooking. Therefore, they rule that smoking meat and dairy together is definitely prohibited min haTorah, and that the resultant food is certainly prohibited for benefit, min haTorah. Although several later authorities agree with the conclusion of the Rambam and the Shulchan Aruch, according to both approaches it is prohibited to smoke meat and dairy together. The practical dispute between the two opinions involves only more esoteric issues, such as whether the violator can still be a kosher witness.

Heavy smoker

We should note that the terms “smoking food” or “smoked food” can mean several different ways of manufacturing. The presumed case of the Talmud Yerushalmi is similar to the processing today of frankfurters and many other sausages, which are “cooked” in smoke, often in an appliance called a smoker. Rather than being cooked directly by the fire, or by water that is heated by fire, these foods are cooked by hot smoke. This is also a common way raw salmon is processed into lox.

Cured smoker

There is another method of preparing food that involves smoke, but where the food, itself, is processed without heat. Wood is burned inside a sealed room called a “smokehouse.” The food to be smoked is placed inside the smokehouse for several days or weeks, while the smoke, now cool, cures the food, providing it with a smoky flavor. Since the food production in this instance takes place in ambient temperature, this process should not be considered “cooking” for basar becholov purposes (see Perisha, Yoreh Deah 87:9). Therefore, the finished product is prohibited for consumption only miderabbanan, and there is no prohibition to cure meat and dairy together using this method or to benefit from the product. Thus, Desperate could engage in this line of work. We should note that there is one late authority who considers this method of producing food to be similar to cooking (Chadrei Deah, quoted by Badei Hashulchan, Biurim 87:6, s.v. Ha’me’ushan), but, to the best of my knowledge, this approach is rejected by all other authorities.

Smoke flavored

There is a modern method of providing “smoke flavor” to food that involves preparing food by steaming, cooking or broiling, and smoke flavor, a natural or synthetic ingredient, is added to provide smoke taste. Whether this is prohibited min haTorah or miderabbanan when processing meat and dairy together will depend on which method is used, and also on the above-mentioned disputes among halachic authorities. I do not recommend that Desperate seek employment in a firm that does this.

Conclusion

A well-known, non-Jewish criticism of Judaism is: “Does G-d care more about what goes into our mouths than He does about what comes out?” The criticism is, of course, both mistaken and conceited. Our development as avdei Hashem involves both what goes in and what comes out, and the height of vanity is to decide which is “more” important in His eyes. Being careful about what we eat and about what we say is a vital step in our growth as human beings.

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Blended and Synthetic Tzitzis

According to Chazal, as reward for Avraham turning down the king of Sodom’s offer, and declining to take even a chut, a thread, his descendants were rewarded with the mitzvah of tzitzis.

Question #1: Silk Talis

“I grew up in a conservative home, and, prior to my bar mitzvah, I was given a ‘bar mitzvah set,’ which included tefillin and a silk talis. I have since discovered that the tefillin were completely non-kosher. Must I assume that there is a problem with the talis also, since it is made from silk?”

Question #2: Prefers Rayon

“What is the basis of the halachic controversy whether one may have a talis koton made of rayon?”

Question #3: Blended Tzitzis

“I have a talis koton that says that it is made of a cotton-polyester blend. Do I recite a brocha when I put it on?”

Answer

Twice each day, we recite the passage that obligates Jewish men to tie tzitzis to the four corners of their garments. The Torah states (Bamidbar 15:38): Dabeir el benei Yisrael ve’amarta aleihem ve’asu lahem tzitzis al kanfei vigdeihem, Speak to the children of Israel and say to them that they should make tzitzis on the corners of their garments.

The topic for today’s discussion is: What type of material are we obligated to use in the mitzvah of tzitzis? Do the corners of all garments require one to place tzitzis? As we will see, the question involves both an issue of Torah law and of rabbinic law.

Only wool or linen?

The Gemara (Menachos 39b) records an early dispute whether the Torah’s mitzvah of tzitzis applies only to garments made of sheep’s wool or of linen. According to Rav Nachman, a four-cornered garment made of silk, cotton, or any other material that is neither sheep’s wool nor linen is not included, min hatorah, in the mitzvah of tzitzis. (For the balance of this article, “wool” will mean specifically wool of sheep. The word tzemer in the Torah means the wool of sheep. Therefore, a blend of linen and wool processed from camels, llamas, rabbits, goats [such as cashmere or mohair] or other animals is not shatnez min hatorah [Kelayim 9:1]. A garment made of a woolen blend containing no sheep’s wool is shatnez only because of rabbinic injunction.) According to Rav Nachman, there is a requirement to attach tzitzis to four-cornered garments made from other cloth, but it is only miderabbanan, so that people should be careful to wear tzitzis (Rambam, Hilchos Tzitzis 3:2).

All fibers are min hatorah

Rav Yehudah and Rava disagree with Rav Nachman, contending that, min hatorah, silk and all other fibers are obligated in mitzvas tzitzis (Menachos 39b). The Gemara notes that this dispute originates among the tanna’im, and that the dispute also affects whether other materials, such as silk, cashmere and mohair, are subject to the tumah of nega’im. According to Rav Nachman and the tanna with whom he sides, the telltale red or green blemishes of tzaraas only make garments made of either wool or linen tamei. Should a garment made of silk, cotton, cashmere, mohair, or other cloth display inexplicable red or green blemishes reminiscent of tzaraas, the garment remains tahor, since these materials are not susceptible to nega’im. However, according to Rav Yehudah and Rava, silk, cotton and other cloth are susceptible to the laws of tzaraas.

What is the halachah?

The Rambam (Hilchos Tzitzis 3:1,2) and the Shulchan Aruch (Orach Chayim 9:1) rule that only linen and wool require tzitzis min hatorah, and the Rambam (Hilchos Tumas Tzaraas 13:1,3) rules that only cloth made of linen and wool are affected by the laws of tzaraas. On the other hand, other authorities rule that all materials require tzitzis min hatorah, and this is the way the Rema rules (Orach Chayim 9:1). (These authorities would also hold that all garments are susceptible to tumas nega’im, but they do not discuss the laws of tumah and taharah because, unfortunately, they are not germane in our day.)

Is there any difference in halachah? After all, both approaches rule that one is required to put tzitzis on four-cornered garments made of cotton, silk or cashmere. What difference does it make whether the garment is obligated in the mitzvah min hatorah or miderabbanan?

There can be several practical differences that result. The most obvious is that, since it is exemplary for someone to fulfill a mitzvah min hatorah when he can, is it preferable to wear a garment made of wool over one made of cotton. For this reason, Rav Moshe Feinstein rules that one should wear a talis koton made of wool, even though it is more comfortable to wear a cotton talis koton in the summer, since one who wears a woolen talis koton thereby fulfills a mitzvah min hatorah, according to all opinions (Shu”t Igros Moshe, Orach Chayim 2:1). On the other hand, other prominent authorities followed the approach of the Rema, contending that an Ashkenazi who is uncomfortable wearing woolen tzitzis in the summer may wear a talis koton made of cotton.

Silk talis

At this point, we can address the first question asked above: “I grew up in a conservative home, and, prior to my bar mitzvah, I was given a ‘bar mitzvah set,’ which included tefillin and a silk talis. I have since discovered that the tefillin were completely non-kosher. Must I assume that there is a problem with the talis also, since it is made of silk?”

The answer is that the fact that the garment or its tzitzis are made from silk does not present any halachic problem. However, there is another potential concern:.

Special strings

The tzitzis threads must be spun with the intent that they will be used to fulfill the mitzvah of tzitzis. After completing the spinning, one takes several of these specially-spun threads and twists them together into a thicker string. This twisting is also performed lishmah. The authorities dispute whether attaching the tzitzis strings to the garment and tying them must also be performed lishmah. In practice we are stringent (Shulchan Aruch, Orach Chayim 14:2 and commentaries).

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

The concern about the silk talis koton, then, is that we need to determine that the tzitzis tied to them were indeed made properly lishmah.

Polyester, rayon or nylon?

At this point, we can discuss whether the mitzvah of tzitzis applies to synthetic materials. Within the last century, mankind has successfully developed numerous fabrics that are lighter than cotton, and which some people find more comfortable to wear. The question is whether a four-cornered garment made from these materials is obligated in the mitzvah of tzitzis. Obviously, according to those who hold that only wool and linen are obligated in tzitzis min hatorah, these garments are not obligated min hatorah, and the question is whether there is an obligation miderabbanan. According to the Rema, who rules that all materials are obligated in tzitzis, the question might even be whether rayon, nylon or other polyester materials are obligated in tzitzis min hatorah.

Why should they not be? Answering this question requires its own introduction.

Tzitzis on leather ponchos

Notwithstanding the conclusion that silk and other materials require tzitzis, a different passage of Gemara (Menachos 40b) assumes that leather garments are exempt from the mitzvah of tzitzis. The Gemara cites a dispute among amora’im regarding whether a garment made of material obligated in tzitzis, but whose corners are made of leather, is obligated in tzitzis. It also cites a dispute whether a garment made of leather whose corners are made of cloth is obligated in tzitzis. Rav and Rav Zeira contend that, in both instances, the main part of the garment is the determinant — a cloth garment with leather corners is obligated to have tzitzis tied to its corners, whereas a leather garment with cloth corners is absolved from the mitzvah of tzitzis. Rav Acha’i disputes with Rav and Rav Zeira, contending that the material comprising the corner determines whether the garment requires tzitzis. Clearly, all the amora’im are in agreement that a garment made completely from leather is exempt from tzitzis.

Why is hide outside?

Why is leather different from all the other materials mentioned that are obligated in tzitzis? We will need to answer this question and then see whether synthetic materials are treated like leather and absolved from the mitzvah of tzitzis, or whether they are like silk and the other materials that are obligated in the mitzvah of tzitzis.

I found two basic approaches to explain why leather is treated differently from other materials. One approach is that leather is not woven, but is cut to size, and that the mitzvah of tzitzis applies only to woven material. This approach is implied by several acharonim (Levush, Orach Chayim 10:4; Graz 10:7).

Nylon and tzitzis

I found several responsa which discuss whether synthetic materials are obligated in the mitzvah of tzitzis. In each case, the questioner “preferred” that the synthetic garment be obligated in the mitzvah. In other words, since one is rewarded for wearing tzitzis daily, the questioner was interested in fulfilling the mitzvah by wearing tzitzis that are on a four-cornered garment made of polyester, nylon or rayon, desiring to wear a cooler material than wool or cotton.

One responsum on the subject is authored by Rav Tzvi Pesach Frank (Shu”t Har Tzvi, Orach Chayim 1:9). He understands that leather is exempt from the mitzvah of tzitzis because it is not woven, and that any four-cornered garment that is not woven is exempt from tzitzis, whereas a woven four-cornered garment is obligated in tzitzis. He then notes that there are two types of nylon garments, one made from woven nylon thread, which he rules would be required to have tzitzis, and one made from sheets of nylon, which are not woven and therefore absolved from the mitzvah of tzitzis, just as leather is.

Disputing approaches

Other authorities reach a different conclusion, for the following reason. In another context, several earlier authorities explain the distinction between leather and other materials in a different way. While discussing the minimum size  for a garment to contract tumah, the Mishnah (Keilim 27:1) teaches that leather clothing is not susceptible to become tamei unless it is larger than the halachic category called arig, which refers to woven material. In their commentaries on that Mishnah, the Rash and the Bartenura both explain that, were one to slice leather into very thin slices and weave them into a garment, the garment thereby produced would still have the halachah of leather and not that of a woven garment. These authorities recognize that the distinction between leather and woven materials is not the process of weaving, but something more basic.

Rav Moshe Feinstein explains that “woven cloth” means material that is a natural fiber that is spun into thread and then woven into cloth. Neither leather nor synthetics meet this definition. Rav Moshe contends that a fiber that can be woven into material is included under the category of arig for tumah purposes and for the obligation of tzitzis. Therefore, Rav Moshe concludes that a four-cornered garment made from synthetic material is exempt from the mitzvah of tzitzis. Wearing tzitzis tied onto such a garment does not accomplish any mitzvah, and reciting a brocha prior to donning this garment is a brocha levatalah, one recited in vain. Furthermore, according to Rav Moshe, wearing such a garment on Shabbos might violate carrying, since the tzitzis are not part of the garment. (The details of this topic are beyond the scope of this article, but see the correspondence and dispute of the Shu”t Meishiv Davar 1:2 with the Mishnah Berurah.)

The Rambam’s commentary

In his commentary to the Mishnah in Keilim, the Rambam seems to explain the Mishnah differently than do the Rash and the Bartenura. Nevertheless, Rav Moshe understands that all three of these authorities understand this aspect of the topic in the same way, but that the Rambam was emphasizing a different point. Thus, Rav Moshe concludes that all early authorities would exempt these synthetic materials from the mitzvah of tzitzis and that this is the halachah.

Tzitz Eliezer and tzitzis

Rav Moshe’s approach is disputed by Rav Eliezer Yehudah Valdenberg (Shu”t Tzitz Eliezer 12:3), who disagrees with Rav Moshe’s understanding of the Rambam. Whereas Rav Moshe understands that the Rambam is explaining the difference between leather and woven materials the same way that the Rash and the Bartenura do, the Tzitz Eliezer explains the Rambam to be making the same distinction as do the Levush, the Graz and the Har Tzvi, i.e.,that leather is not considered arig because it is not woven. As we mentioned above, in the opinion of these latter authorities, anything woven is obligated in the mitzvah of tzitzis. The Tzitz Eliezer understands that the Rambam is making the same distinction germane to what is considered arig for the laws of tumah. Since the later authorities accept this distinction, Rav Valdenberg concludes that four-cornered synthetic garments, which are woven, are obligated in tzitzis, and that those who are uncomfortable wearing other cloth may fulfill the mitzvah by wearing rayon or polyester tzitzis. Because there are early authorities who dispute this conclusion, namely the Rash and the Bartenura, Rav Valdenberg rules that those who wear these tzitzis should not recite a brocha when putting them on.

Prefers rayon

At this point, we can address one of our opening questions: “What is the basis of the halachic controversy whether one may have a talis koton made of rayon?”

The answer is that it depends on why leather is exempt from tzitzis. If leather is exempt because only woven fabrics are obligated in the mitzvah of tzitzis, then a rayon four-cornered garment is obligated in the mitzvah, and one fulfills the mitzvah by wearing it. On the other hand, if leather is exempt because only naturally fibrous materials are obligated in tzitzis, then rayon is exempt from tzitzis, and nothing is accomplished by tying tzitzis to a four-cornered rayon garment.

Metal clothing

This author would like to note another situation, although today uncommon, which should result from the dispute between Rav Pesach Frank and Rav Moshe. According to both approaches, if someone makes a four-cornered garment from metal plating, the garment is exempt from the mitzvah of tzitzis. According to Rav Moshe, it would be exempt because it is not made from material that is naturally fibrous, whereas according to Rav Frank, it would be exempt because it was not woven. However, already in the time of chumash, metal was sliced into filaments which were woven into clothing. Is a four-cornered garment woven from metal filament obligated in tzitzis? According to Rav Frank, this garment should be obligated in tzitzis since it is woven, whereas, according to Rav Moshe, it should not, since this material is not naturally fibrous.

Blends

At this point, let us examine the last of our opening questions:

“I have a talis koton that says that it is made of a cotton-polyester blend. Do I recite a brocha when I put it on?”

When a thread is spun from a blend of fibers, the halachic status of the thread is determined by what composes most of the thread’s fiber content and ignores the existence of other fibers inside the thread (Mishnah Kelayim 9:1). The minority of fiber is halachically bateil, or nullified, to the majority fiber content in the thread. Thus, threads spun from a mixture that is mostly cotton fiber with some linen fiber are considered cotton and may be woven in a woolen garment without creating a prohibition of shatnez. Similarly, a garment consisting of threads made of a blend of mostly mohair, but including some sheep’s wool fiber, that is woven or sewn with linen threads is not shatnez and may be worn.

The same law is true regarding the mitzvah of tzitzis. A garment made of threads that are a blend that is mostly rayon or polyester fiber and includes cotton fiber will have the halachic status of a rayon garment and be exempt from tzitzis, according to Rav Moshe’s ruling. Of course, according to Rav Frank, this garment is obligated in the mitzvah of tzitzis.

Conclusion

Rav Hirsch notes that the root of the word tzitzis is to “sprout” or “blossom,” a strange concept to associate with garments, which do not grow. He explains that the message of our clothing is extended, that is, sprouts and blossoms, by virtue of our tzitzis. The introduction of clothing to Adam and Chavah was to teach man that his destiny is greater than an animal’s, and that his responsibility is to make all his decisions according to Hashem’s laws, and not his own desires. Introducing tzitzis onto a Jew’s garments reinforces this idea; we must act according to what Hashem expects. Thus, whether we are wearing, shopping for, examining or laundering tzitzis, we must remember our life’s goal: fulfilling Hashem’s instructions, not our own desires.

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May I Daven in English?

The end of parshas Noach teaches about the beginning of languages…

Question #1:

I received the following e-mail question from Verna Acular:

I much prefer to pray in English, since reading the siddur in Hebrew provides me with no emotional connection to G-d. I was told to read the Hebrew even though I cannot comprehend it; yet, other people I know were told that they could pray in English. Which approach is correct?

Question #2:

Bella, a middle-aged new immigrant from Central Europe, struggles to ask the rabbi:

Hungarian is the only language that I can read and understand. Someone told me that, now that I am living in the United States, I cannot pray in Hungarian, but must learn to read either English or Hebrew. Is this so? I am really too old to learn a new language.

Question #3:

Bracha Acharona asked me the following:

I heard that some authorities rule that if one recited a bracha in Japanese before eating, one should not recite the bracha again, even if one does not understand a word of Japanese; yet, if one bensched in Japanese, one would be required to bensch again. Is there indeed a difference between the brachos recited before and after eating?

Those That Can and Those That Cannot

The Mishnah (Sotah 32a) supplies a rather long list of mitzvos that are fulfilled only when recited in Hebrew and those that are fulfilled when recited in any language. For example, one cannot fulfill the requirements of chalitzah (see Devarim 25:7-10), duchening (see Bamidbar 6:24-26), and the narration that accompanies bikkurim (see Devarim 26:5-11), unless one recites the exact Hebrew words that the Torah cites. On the other hand, other mitzvos, including the reciting of shema, prayer (including shemoneh esrei), and birkas hamazon (bensching) can be fulfilled by translating the relevant passages into a language that one understands. Indeed, the Gemara (Brachos 40b) records an instance in which an individual named Binyomin the Shepherd bensched in Aramaic, and Rav ruled that he had fulfilled his requirement. The Gemara explains the reason why some mitzvos may be fulfilled in translation, but not others, on the basis of several intricate interpretations from various verses.

Which is preferable?

Having established that one may pray in a vernacular, the first question on which we will focus is whether it is preferable or perhaps even essential for someone who does not understand Hebrew to pray in a language that he understands, or whether it is preferred to pray in Hebrew, even though it is not understood.

Tosafos’ opinion

From Tosafos (Sotah op. cit.) we see that someone who does not understand Hebrew and recites a prayer, shema, or bensching in Hebrew does not fulfill the mitzvah. Tosafos asks why the Mishnah omits hearing megillah from its list of mitzvos that may be fulfilled in any language. Tosafos answers that the mitzvah of megillah is qualitatively different from all the other mitzvos mentioned in this Mishnah, because one who does not understand Hebrew fulfills the mitzvah of megillah in Hebrew. Tosafos clearly understands that someone who prays, bensches or reads shema in a language he does not understand does not fulfill the mitzvah, even if the language is Hebrew, and the Mishnah is listing mitzvos that someone who doesn’t understand Hebrew will fulfill only in the vernacular. Thus, according to Tosafos’ opinion, Verna should be reciting her prayers in English, and Bella should recite them in Hungarian.

Hebrew for the Hungarians

Although Tosafos holds this way, later authorities reject this conclusion. The Keren Orah notes that, according to Tosafos, someone who does not understand Hebrew will be unable to fulfill the mitzvos of bensching and davening if he does not have a siddur handy with a translation in a language that he understands. The Keren Orah cites other early authorities who answered Tosafos’ question (why Megillah is not cited in the Mishnah) in a different way, and he concludes that one who prayed, bensched or read shema in Hebrew fulfills the mitzvah, even if he does not understand Hebrew, providing that he knew that he was about to fulfill the mitzvah.

Quoting other authorities, the Mishnah Berurah (62:2), rules that someone who does not understand Hebrew should preferably daven, bensch and recite shema in Hebrew.

What does veshinantam mean?

The Mishnah Berurah adds an additional reason to recite shema in Hebrew; there are several words in shema that are difficult to translate, or whose meaning is unclear. For example, the word veshinantam may often be translated as and you shall teach them, but this translation does not express the full meaning of the word. The word for teach them in Hebrew is velimad’tem, which is used in the second parsha of shema. The word veshinantam means teaching students until they know the Torah thoroughly, and simply translating this word as and you shall teach them does not explain the word adequately.

This difference in meaning is reflected in Targum Onkeles, where velimadtem is translated vesalfun, whereas veshinantam is translated u’sesaninun, which comes from the Aramaic root that is equivalent to the Hebrew veshinantam. Thus, Aramaic possesses two different verbs, one of which means to teach and the other meaning to teach until known thoroughly, whereas English lacks a short way of expressing the latter idea.

I have heard it suggested that one may alleviate this problem of reciting shema in English by translating the word veshinantam with the entire clause you shall teach it to your sons until they know it thoroughly. This approach should seemingly resolve the concern raised by the Mishnah Berurah, although I am unaware of an English translation that renders the word veshinantam in this way.

Other hard translations

Whether or not one can translate veshinantam accurately, the Mishnah Berurah questions how one will translate the word es, since it has no equivalent in most languages. He further notes that the word totafos, which refers to the tefillin worn on the head,is also difficult to translate. However, when we recite these words in Hebrew, we avoid the need to know the exact translation, since we are using the words the Torah itself used. The Mishnah Berurah feels that, for the same reasons, someone who can read but does not understand Hebrew should recite kiddush, bensching, davening and his other brachos in Hebrew.

Although the Mishnah Berurah does not mention this predicament, a problem similar to the one he raises concerns the translation of the Name of G-d. When reciting a bracha or any of the above-mentioned requirements in a different language, one must be careful to translate this Name accurately (Shu’t Igros Moshe, Orach Chayim 4:40:27). Rav Moshe Feinstein notes this problem in the context of the anecdote I mentioned above about Binyomin the Shepherd, who bensched in Aramaic. The Gemara records that Binyomin referred to G-d as Rachmana. In a teshuvah on the subject, Rav Moshe notes that although the word Rachmana obviously derives from the same source as the word rachum, mercy, one would not fulfill the requirement of reciting a bracha by substituting the word rachum for Hashem’s Name. Thus, Rav Moshe asks, how could Binyomin the Shepherd have fulfilled his bracha by reciting the translation of the word rachum?

Rav Moshe answers that although the source of the word Rachmana and the word rachum are the same, Rachmana is the translation of G-d’s Name in Aramaic, and therefore it is used in Aramaic prayers and blessings. However, rachum is not a translation of G-d, but an attribute of G-d, and its recital in a bracha is not adequate.

We thus realize that someone translating Hashem’s Name into any language must be careful to do so accurately.

Is “G-d” correct?

I have seen two common ways of translating the Name of Hashem into English, one as Lord and the other as G-d. Translating His Name as Lord is based on the meaning of the Name Adnus as Adon hakol, the Lord of all, which is the basic understanding one is required to have when reciting His Name. However, I have noticed that some recent translations now transliterate the Name in English as Hashem. This is not an accurate translation, and a person reciting the bracha this way will not fulfill his responsibility. I strongly suggest that the publishers not do this, since they are performing a disservice for people using their translation.

The position of the Sefer Chassidim

Notwithstanding that the Mishnah Berurah prefers that someone who does not understand Hebrew daven, bensch, and recite shema in Hebrew, the Sefer Chassidim (#588) advises, “A G-d-fearing man or woman who does not understand Hebrew who asks, tell them to learn the prayers in the language that they understand. Prayer can be recited only with the understanding of the heart, and if the heart does not understand what the mouth expresses, nothing is accomplished. For this reason, it is best to pray in a language one understands.

He states this even more clearly in a different passage (#785).

It is better for a person to pray and recite shema and brachos in a language that he comprehends, rather than pray in Hebrew and not understand… It is for this reason that the Talmud, both in Bavel and in Eretz Yisrael, was written in Aramaic, so that even the unlettered can understand the mitzvos.

The Sefer Chassidim’s position is subsequently quoted by the Magen Avraham (101:5), who also cites this approach in the name of the Asarah Ma’amaros of the Rama miFanu.

The Yad Efrayim’s approach

The Yad Efrayim quotes the Magen Avraham (who ruled as the Sefer Chassidim), but contends that one should recite the tefillah in Hebrew. To quote him: In our days, when there is no one who can translate the Hebrew accurately, one should rebuke anyone who follows a lenient route and prays in the vernacular. Rather, one should not separate himself from the community that reads the prayer in Hebrew, and one fulfills the mitzvah even if he does not understand. Someone concerned about the issues raised by Sefer Chassidim should learn enough basic understanding of Hebrew to know what he is asking. Although he does not understand every word, this is not a concern… If he does not want to learn Hebrew, he should pray in Hebrew with the community, and afterwards read the prayer in translation.

Thus, the Yad Efrayim is a strong advocate of praying only in Hebrew, and he is presumably one of the authorities upon whom the Mishnah Berurah based his ruling.

At this point, we can return to Verna’s question:

I much prefer to pray in English, since reading the siddur provides me with no emotional connection to G-d. I was told to read the Hebrew, even though I cannot comprehend it; yet, other people I know were told that they could pray in English. Which approach is correct?

Verna has been told to follow the ruling of the Yad Efrayim and the Mishnah Berurah, which is the most commonly, followed approach today. The “other people” that Verna mentions were instructed to follow the approach of the Magen Avraham and the Sefer Chassidim. It is also possible that the “other people” cannot read Hebrew properly. Someone who cannot read Hebrew has no choice but to recite prayers in the best translation that he/she can find.

Is this the language of the country?

At this point, I would like to address Bella’s predicament:

Hungarian is the only language that I read and understand. Someone told me that, now that I am living in the United States, I cannot pray in Hungarian, but must learn to read either English or Hebrew. Is this so?

What is the halacha if someone does not understand the language of the country in which he/she lives? Can one fulfill the mitzvos of shema, brachos and davening by reciting these prayers in his native language, notwithstanding the fact that few people in his new country comprehend this language?

Although this may seem surprising, the Bi’ur Halacha rules that one fulfills the mitzvos in a vernacular only when this is the language that is commonly understood in the country in which he is currently located. The Bi’ur Halacha based his ruling on a statement of the Ritva (in the beginning of his notes to the Rif on Nedarim), who implies that halacha recognizes something as a language only in the time and place that a people has chosen to make this into their spoken vernacular.

Following this approach, one who recites a bracha in America in a language that most Americans do not understand is required to recite the bracha again. Bella was indeed told the position of the Bi’ur Halacha that one cannot fulfill the mitzvah of praying in the United States in Hungarian or any other language that is not commonly understood, other than Hebrew.

Rav Gustman’s position

Other authorities dispute the Bi’ur Halacha’s conclusion, demonstrating that this concern of the Ritva refers only to a slang or code, but not to a proper language (Kuntrisei Shiurim of Rav Gustman, Nedarim page 11; and others). This means that if someone prayed or recited a bracha in something that is not considered a true language, he would not fulfill his mitzvah and would be required to recite the prayer or bracha again. However, although most Americans do not understand Hungarian, this is a bona fide language, and Bella fulfills the mitzvah by davening in Hungarian. Rav Gustman writes that he told many Russian baalei teshuvah that they could pray in Russian when they were living in Israel or the United States, even though Russian is not understood by most people in either country. He acknowledges that, according to the Bi’ur Halacha, this would not fulfill the mitzvah.

Must one understand the foreign language?

At this point, we will address Bracha’s brachos question:

I heard that some authorities rule that if one recited a bracha in Japanese before eating, one should not recite the bracha again, even if one does not know a word of Japanese; yet if one bensched in Japanese, one would be required to bensch again. Is there indeed a difference between a bracha before eating and one after?

According to Tosafos, someone can fulfill reciting the brachos before eating, Hallel and Kiddush even in a secular language that one does not understand. Tosafos contends that we see from the Mishnah that these mitzvos have a difference in halacha with bensching, davening and shema, where one fulfills the mitzvah only in a language that one understands.

Do we follow Tosafos’ opinion?

Although the Magen Avraham (introduction to Orach Chayim 62) rules in accordance with this Tosafos, most later commentaries do not (Keren Orah and Rav Elazar Landau on Sotah ad loc.; Bi’ur Halacha 62 s.v. Yachol; Aruch Hashulchan 62:3). Several authorities state that they do not understand Tosafos’ position that there is a difference between shema, shemoneh esrei and birkas hamazon, which can only be recited in a language one understands, and Kiddush, Hallel, birkas hamitzvos and brachos before eating, which Tosafos rules one may recite even in a language that one does not comprehend.

I suggest the following explanation of Tosafos’ view: The drasha of Chazal states that one fulfills shema only in a language that one understands. This is logical, because shema is accepting the yoke of Heaven, and how can one do this without comprehending the words? The same idea applies to the shemoneh esrei — how can one pray if he does not understand what he is saying? Birkas hamazon is also a very high level of thanks, and what type of acknowledgement is it, if one does not know the meaning of the words he is saying? However, one can praise in a language that he does not understand, as evidenced by the fact that chazzanim or choirs may sing beautiful praise, although they do not necessarily comprehend every word. Similarly, as long as one knows that kiddush sanctifies Shabbos, he fulfills the mitzvah, even if he does not understand the words.

Conclusion

Some people, who cannot read Hebrew at all, have no choice but to pray in the language that they can read and understand. However, anyone who can should accept the challenge of studying the prayers a bit at a time, thereby gradually developing both fluency and comprehension. In the interim, they can read the translation of each paragraph first, and then read the Hebrew, which will help them develop a full understanding of the prayers as Chazal wrote and organized them.

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Living Things Carrying Themselves?

Since our parsha discusses both the creation of all living things, and the creation of Shabbos…

Question # 1: Animals on Shabbos

Why must animals observe Shabbos, when they are not required to observe any other mitzvos?

Question #2: A Bird in the Hand

Does carrying a bird desecrate Shabbos min haTorah?

Question #3: Togetherness

If two people carry an item together, are they culpable of chillul Shabbos?

Introduction

The words of the Aseres Hadibros are: “The seventh day is Shabbos for Hashem, your G-d. You may not do any work; not you, your son, daughter, your slave and maidservant, or your animal.”

Thus, we are introduced to the concept that Shabbos is not only for us to observe, but also for us to ensure that animals are not involved in Shabbos desecration. We understand that we are required to observe Shabbos, but why should our animals be required to do so? Does the Torah assume that they comprehend what Shabbos means and can calculate which day of the week it is? How should we punish them if they disobey?

The answer is that they are not required to keep Shabbos; animals have no requirement to observe mitzvos. The mitzvah applies to us: included in our observance of Shabbos is an obligation that we are not to have our animals perform melacha for us.

There are two aspects to this mitzvah, one called shevisas beheimah and the other called mechameir. Shevisas beheimah requires that my animal not be worked by a person, and includes a situation in which a Jewish animal owner allows another person to use his animal to perform melacha for human benefit. The owner violates this lo saaseh even if he allows a non-Jew to use his animal to perform melacha, notwithstanding that the non-Jew has no mitzvah to observe Shabbos, and, indeed, is not even permitted to do so (Sanhedrin 58b).

Mechameir is when a Jew uses an animal to perform a melacha, even if he does not own the animal.

We see that these two activities, shevisas beheimah and mechameir, are both prohibited min haTorah. Does this mean that they are considered on the same level as performing one of the 39 melachos on Shabbos? Chazal explain that there are two categories of activities that are prohibited min haTorah on Shabbos — those that are included under the heading of melacha, and those that are not. The first are those that the Torah says could require capital punishment, as we see from the story of the mekosheish (see Bamidbar 15 32-35). Shevisas beheimah is certainly not considered a melacha, notwithstanding that it is prohibited min haTorah.

According to some tanna’im, mechameir has the full status of a melacha. The halacha is that although mechameir is not a melacha, it still violates Shabbos min haTorah, on a level approximately similar to the way that stealing violates the Torah. 

Only melacha

Both shevisas beheimah and mechameir violate Shabbos min haTorah only when the animal is used to perform an activity that for a person is considered melacha. Thus, having an animal plow or plant a field violates Shabbos. We will see more on this topic at the end of this article. Before we do, we need to discuss a different subject.

Chai nosei es atzmo

In several places, the Gemara discusses a halachic principle called chai nosei es atzmo, literally, “a living thing carries  itself” (Shabbos 94a, 141b; Eruvin 103a; Yoma 66b). The Gemara (Shabbos 94a) quotes and explains this concept, when it cites a dispute between Rabbi Nosson and the chachamim regarding someone who carries an animal or bird on Shabbos. Rabbi Nosson rules that the carrier is not in violation of Shabbos min haTorah, because of the principle of chai nosei es atzmo, whereas the chachamim rule that the carrier is culpable of desecrating Shabbos. The Gemara then states that the chachamim agree that carrying a person does not violate Shabbos min haTorah, because of chai nosei es atzmo. The chachamim contend that, notwithstanding the principle of chai nosei es atzmo, carrying an animal desecrates Shabbos min haTorah, because animals will try to wriggle out of the person’s control when they are carried. This argument does not concern Rabbi Nosson, although the Gemara never tells us why.

A bird in the hand

At this point, we have enough background to answer the second of our opening questions:

Does carrying a bird desecrate Shabbos min haTorah? The answer is that this is the subject of a dispute among tanna’im, in which Rabbi Nosson rules that the person doing this is not guilty of desecrating Shabbos because of chai nosei es atzmo, but the chachamim conclude that it does violate carrying, min haTorah. The halacha follows the opinion of the chachamim (Rambam, Hilchos Shabbos 18:16).

Why is chai nosei es atzmo exempt?

Why is it that, because of the principle of chai nosei es atzmo, carrying a person is not considered desecrating Shabbos? Tosafos (Shabbos 94a s.v. she’ha chai) is bothered by this issue, mentioning three approaches to explain why this is true, each of which requires a lengthy introduction. To remember the three approaches in the order in which Tosafos proposes them, I suggest the follow popular acronym: ATM.

1. Assistance

The “passenger” assists the “carrier” in the transportation.

2. Togetherness

Two (or more) people, or one person and one (or more) animal(s), are involved in performing the melacha, together.

3. Mishkan

The melacha activity is dissimilar from the way any carrying was performed in the construction of the Mishkan.

Assistance

The first approach suggested by Tosafos understands that carrying a person is not a melacha min haTorah because the “passenger” distributes his weight to help out the person who is hauling him. Tosafos rejects this approach because, although it is easier to carry a person than the same amount of dead weight, it is far easier to carry a much lighter object than it is to carry a person, yet carrying the light object violates Shabbos min haTorah, whereas carrying a person does not. Thus, Tosafos explains that there must be a different reason to explain chai nosei es atzmo.

A point that Tosafos does not note is that the approach just mentioned appears to be how Rashi (Shabbos 93b s.v. es) understands the topic of chai nosei es atzmo. We will need to address this sub-topic at another time.

Togetherness

The second approach to explain chai nosei es atzmo quoted by Tosafos is based on a principle, taught by the Mishnah (Shabbos 92b, 106b), that there is a qualitative difference between a melacha that is performed by two people together and one that is performed by a sole individual. The halachic term applied when two people perform a melacha together is shenayim she’asu. When the person being carried makes it easier for someone else to carry him, it is considered shenayim she’asu, and neither the carrier nor the passenger violates a Torah melacha.

However, based on detailed analysis of the rules of shenayim she’asu, Tosafos denies that this rationale will exempt the performer of this act from culpability on Shabbos. There are three opinions among tanna’im as to what are the rules germane to shenayim she’asu. Rabbi Meir, the most stringent of the three, disagrees with the rule that shenayim she’asu is not considered as performing a melacha (Shabbos 92b). He contends that when two people perform a melacha activity together, they are usually both culpable of violating the melacha. (We will mention shortly the one case when even Rabbi Meir accepts that there is an exemption.)

Second opinion

The tanna Rabbi Yehudah, a second opinion, draws a distinction regarding whether the two people can perform the melacha only when they are working together or whether each can perform the melacha separately. When two people carry something together that neither would be able to carry on his own, both are culpable for carrying the item on Shabbos, since this is the usual way for two people to perform this melacha activity. For example, a table too heavy or bulky for one person to carry is usually carried by two people. Therefore, two people carrying this table is the usual way to transport it. This case is called zeh eino yachol vezeh eino yachol, in which case, both transporters are culpable for desecrating Shabbos, according to Rabbi Yehudah.

However, regarding an item that each would have been able to carry on his own, such as a chair that is easily carried by either individual alone, should the two of them carry it together, neither is guilty of violating Shabbos, since this is an unusual way of carrying it. This case is called zeh yachol vezeh yachol.

Third opinion

The third approach is that of Rabbi Shimon, who rules that whether the item can be carried by each person separately or whether it cannot, no one violates Shabbos min haTorah.

The conclusion of the rishonim is that the halacha follows the middle opinion, that of Rabbi Yehudah (Rambam, Hilchos Shabbos 1:16).

Two together

At this point, I will digress briefly to answer the third of our opening questions: If two people carry an item together, are they culpable of chillul Shabbos?

The answer is that this case usually involves a dispute among tanna’im, and the accepted halacha is that, if either could carry it by himself, they are exempt from chillul Shabbos min haTorah. However, if it is a large item, and neither can carry it on his own, they are culpable of desecrating Shabbos.

One can and one cannot

What is the halacha if one of them is able to carry it by himself, and the other cannot? This case is called zeh yachol vezeh eino yachol, which we have thus far omitted from our discussion. What is the halacha if one of the parties can perform the melacha activity by himself, and the second cannot perform it without the assistance of his associate?

The Gemara raises this question and concludes that the person who can perform the melacha by himself is culpable, even when he is assisted, and the person who cannot perform it by himself is exempt from a melacha min haTorah (Shabbos 93a).

Now, notes Tosafos, let us compare the case of chai nosei es atzmo, when one person carries another, to the rules ofshenayim se’asu. In this case, the person doing the carrying can obviously perform the melacha by himself without the assistance of the other person. And, the person being carried is not performing the melacha by himself. According to what we just learned, the person doing the carrying should be culpable for violating the melacha. Since the halacha of chai nosei es atzmo is that the person doing the carrying is exempt from violating the melacha min haTorah, the approach of shenayim she’asu does not explain the halachic conclusion, and clearly cannot be the correct reason for the principle of chai nosei es atzmo. In baseball jargon, we would call this a swing and a miss.

Mishkan

Tosafos, therefore, proposes a third way to explain the principle of chai nosei es atzmo: The 39 melachos of Shabbos are derived from the activities performed in the building of the Mishkan in the Desert. Notwithstanding the importance of constructing the Mishkan as quickly as possible, it was strictly prohibited to perform any aspect of its building on Shabbos. This implies that the definition of what is prohibited on Shabbos is anything necessary to build the Mishkan.

Tosafos notes that building the Mishkan never necessitated carrying something that was alive. Although both hides of animals and dyes manufactured from animal sources were used in the construction of the Mishkan, Tosafos concludes that the animals whose hides were used were led, rather than carried, to where they were slaughtered, and the animals that provided sources for the dyes were transported after they were dead. Thus, chai nosei es atzmo creates an exemption from desecrating Shabbos because of a unique rule in the melacha of carrying: for an activity to be considered a melacha min haTorah of carrying, the activity has to be fairly comparable to the way it was done in the construction of the Mishkan (see Tosafos, Eruvin 97b s.v. es and Shabbos 2a s.v. pashat; see also Penei Yehoshua on Tosafos 94a s.v. shehachai).

Chachamim

We noted above that, whereas Rabbi Nosson rules that someone who carried an animal on Shabbos is exempt from violating Shabbos min haTorah, the chachamim disagree. However, the Gemara concludes that the chachamim also accept the principle of chai nosei es atzmo, but disagree with its application regarding the case of someone carrying an animal, since the animal will be trying to escape. The chachamim agree that chai nosei es atzmo applies when carrying a person, as evidenced in two different places in the Mishnah:

In Mesechta Shabbos, the Mishnah (93b) states that carrying a bed containing an ill person on Shabbos is not a melacha min haTorah. This is because the bed is subordinate to the person, just as clothing or jewelry is. Carrying the person, himself, is not a melacha, because of chai nosei es atzmo.

The second place is a Mishnah discussing a rabbinic injunction banning sale of a donkey or cow to a non-Jew on any day of the week (Avodah Zarah 14b). The Gemara (15a) explains that this prohibition is because of concern that selling a large animal to a non-Jew could cause the seller to desecrate Shabbos, and then explains two different scenarios whereby this could happen.

A. Renting or lending

One way is that a Jew may rent or lend an animal to a non-Jew over Shabbos, which could easily cause the Jewish owner of the animal to desecrate Shabbos. When the non-Jew renter or borrower uses the animal on Shabbos, the Jewish owner violates the Torah prohibition of shevisas beheimah, explained at the beginning of this article. Prohibiting the sale of large animals to non-Jews avoids a Jew having any financial dealings involving these animals.

B. Mechameir

The other concern is that the Jew might sell the animal to a non-Jew before Shabbos, but the non-Jew discovers on Shabbos that he cannot get the animal to follow his instructions, so he asks the Jew for help with the animal after Shabbos starts. If the Jew speaks and the animal obeys his voice and thereby performs melacha, the Jew has directed the animal to work on Shabbos, which is a desecration of mechameir, even should the non-Jew already own the animal.

For those in the cattle business, there are heterim discussed in the Gemara and the halachic authorities, which we will leave for another time.

Chai nosei es atzmo

We now know why Chazal banned a Jew from selling an animal to a non-Jew. What does this have to do with chai nosei es atzmo?

The Mishnah teaches that Ben Beseira permits selling horses to non-Jews, which the chachamim dispute. Having your animal work on Shabbos is prohibited min haTorah only when the animal performs what is considered melacha. Thus, having an animal plow, plant, or grind grain is prohibited, min haTorah, on Shabbos. However, having an animal carry a human rider on Shabbos is prohibited only miderabbanan, since the human is capable of walking – chai nosei es atzmo. Therefore, Ben Beseira permitted selling a horse to a non-Jew, because this would never lead someone to violate Shabbos min haTorah. The Sages prohibit selling a horse, because there are instances in which it is used to perform melacha de’oraysa, and therefore it is included in the prohibition of selling large animals to a non-Jew.

Conclusion

As I mentioned above, animals have no requirement to observe mitzvos. The requirement that it is forbidden to do melacha is a commandment that applies to us; observing Shabbos requires that we refrain from having them perform melacha for us. And the reason is simple: Hashem gave us permission, indeed responsibility, to oversee and rule over the world that He created. However, we must always remember that it is He who gave us this authority, and, by observing Shabbos, we demonstrate this. Our power extends over all of creation, including the animal kingdom. Thus, Shabbos limiting our control of animals demonstrates that our authority the rest of the week is only by virtue of the authority granted us by Hashem.

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos in order to provide a day of rest. This is incorrect, he points out, because the Torah does not prohibit doing avodah, which connotes hard work, but melacha, which implies purpose and accomplishment. On Shabbos, we refrain from constructing and altering the world for our own purposes. The goal of Shabbos is to emphasize Hashem’s rule as the focus of creation by refraining from our own creative acts (Shemos 20:11). Understanding that the goal of our actions affects whether a melacha activity has been performed demonstrates, even more, the concepts of purpose and accomplishment.

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