The Confused Image of Glass

In common years, Parshas Tzav falls on Shabbos Hagadol, and the piyutim (and perhaps the drosha) of the day teach about kashering for Pesach. Although this year is a leap year and Shabbos Hagadol is a month from now…

Question #1: Tevilas keilim

Why is glass the only material other than metal for which Chazal required immersion?

Question #2: Non-Kosher

May I use a non-kosher drinking glass for a hot cup of tea?

Question #3: Chicken soup and milk

After serving chicken soup in a glass, may I pour hot milk into the same glass?

Question #4: Kashering for Pesach

How do I kasher my chometz-dik glasses for Pesach?

Introduction

Moshe Rabbeinu hid the Egyptian that he killed in the sand; for this reason, striking the earth to bring the makeh of kinnim needed to be performed by Aharon (Rashi, Shemos 8:12). Since the world has huge deposits of sand, mankind attempted to use it for useful items, eventually discovering that, by heating sand to a very high temperature, it can be made into glassware, which is the topic of this article.

There is no mention of glassware in the Torah, although there is one reference to glassware in Tanach, in the book of Iyov (28:17). Iyov declares, regarding wisdom, lo ya’archena zahav uzechuchis, “Gold and glass do not equal it,” meaning that the value of gold or glass comes nowhere near that of wisdom. From this passage we see that, at the time of Tanach, glass was considered an extremely expensive material. As we will see shortly, that glass became less costly with time has halachic ramifications.

Before discussing the halachos of glass, let us note some of its unique chemical and physical properties that affect its halachic status.

Recyclable

Glassware has many uses and can be very beautiful, but at the same time it is fragile and breakable. However, as opposed to pottery, which, when broken, is irreparable and virtually useless, broken glassware can be easily recycled. Glass can be melted down and reused over and over. In this respect, glass shares an important characteristic with metals, which are also recyclable by being melted down. For this reason, Chazal sometimes gave glassware the halachos of metals. For example, germane to the mitzvah of tevilas keilim, the Gemara rules that glass vessels must be toiveled before use, as indicated in the Gemara (Avodah Zarah 75b): Rav Ashi said, Glass utensils, since when broken they can be repaired, are like metal utensils.

Rav Ashi lived at the very end of the period of the Gemara. A much earlier statement of Chazal, in Avos deRabbi Nosson (Chapter 41), provides the following terse statement:

“Three things were said regarding glassware:

(1) It does not absorb; it does not impart.

(2) It shows whatever is inside.

(3) If you place it in a hot place, it becomes hot. If you place it in a cold place, it becomes cold.”

Avos deRabbi Nosson is not intended to be a scientific work, nor is it a handbook for manufacturers. It is similar to Pirkei Avos, although it contains much more aggaddic material, and so it would probably be best classified as an early midrash, similar to Midrash Tanchuma or Pirkei deRabbi Eliezer, or to the much later midrashic collections like Midrash Rabbah or Yalkut Shimoni. So, why is it concerned with categorizing the qualities of glassware?

The answer to this question is that, although Avos deRabbi Nosson is not usually treated as a halachic midrash, in this instance, that is exactly what it is — providing halachic categorization with which to define the unique qualities of glass. By so doing, it provides a background with which to explain the halachos of glassware.

Does not absorb

Laboratory experiments use glass equipment because it does not absorb, nor does it impart or leach into what is heated or stored inside it. Therefore, it should not affect whatever chemical reaction or research for which it is being used. We will soon discuss the kashrus ramifications of this quality of glass, about which the Avos deRabbi Nosson was presumably concerned.

May be clear or opaque

We are accustomed to most glass being clear, but this is really a function of what other chemicals are in the sand from which the glass is made when it is fired. Even glass that is colored is usually transparent, which is one of the common qualities of glass and is highly uncommon in other materials.

This observation about glassware has much halachic ramification, although this distinction does not affect any “kitchen kashrus” issues. It does, however, have ramifications for the laws of tumah and taharah, which we will not disuss in this article because of space considerations.

It is a conductor

The third statement of the Avos deRabbi Nosson is that if you place glass in a hot place, it becomes hot, and if you place it in a cold place, it becomes cold. In other words, glass is a conductor and not a good insulator. The best insulator used today in the kitchen and in carryout shops is Styrofoam. But on the relative scale of things, glass is closer to metal in its ability to conduct heat.

Having used the Avos deRabbi Nosson as a means of explaining the unique properties of glass, we can now discuss the halachic questions that I raised at the beginning of our article.

Tevilas keilim

Our first question was: Why is glass the only material other than metal for which Chazal required immersion?

Allow me to explain. The laws of tumah and taharah germane to tools, equipment and vessels include many different types of materials. Items manufactured from metal, wood, cloth, horn, glass, and plants are all susceptible to tumah, as is food, pottery and boneware. Nonetheless, germane to the mitzvah of immersing utensils prior to food use, the requirement min haTorah  applies only to metal utensils, and not to utensils, pots or pans made of pottery, wood, cloth, bone, horn or any other materials. Therefore, there is no requirement to toivel a wooden spoon, a ceramic dish, cheesecloth used for food (after all, it is called cheesecloth, and not laundry cloth, for a good reason), or flatware chiseled out of horn or bone. However, why is there a requirement to toivel glass bowls and cups?

Based on the Gemara that we quoted above, we can answer this question: Broken glass utensils can be recycled for new manufacture, just as you can recycle broken metal utensils. Since glass shares this quality with metal, Chazal instituted that glass be treated like metalware, germane to the mitzvah of toiveling food-preparatory vessels prior to using them.

Glass and kashrus

At this point, I am going to combine the next three of our opening questions into one discussion:

May I use a non-kosher drinking glass for a hot cup of tea?

After serving chicken soup in a glass, may I pour hot milk into the same glass?

How do I kasher my chometz-dik glasses for Pesach?

There is a tremendous diversity of opinion among the rishonim concerning the kashrus status of glassware. Do we assume, halachically, as does the chemist, that glass never imparts anything that it absorbs? If this is true, it should never require kashering and it may be used interchangeably from treif to kosher, from milchig to fleishig, and from chometz to Pesach without any kashering procedure at all. On the other hand, we have no Talmudic source that expressly permits using any utensil in any of these ways without a kashering procedure in between.

The different opinions that we find among the rishonim on this issue can be categorized loosely as three basic approaches:

1. No need to kasher

Several authorities contend that the nature of glass is that it does not absorb or impart any taste and that, therefore, it does not require any kashering at all (Rabbeinu Tam, quoted by Tosafos, Avodah Zarah 33b s.v. Kunya and Kesubos 107b s.v. Hani,and Rosh, Pesachim 2:8; Rashba, both in Shu”t Harashba 1:233 and in Toras Habayis 5:6; Ran, Pesachim 9a [in the Rif’s pages]; Ravyah,quoted by Mordechai, Pesachim #574). Many of these authorities quote the above mentioned Avos deRabbi Nosson as a proof for this ruling.

2. Does not help to kasher

Halacha treats glassware like pottery. Once pottery was used to cook chometz or non-kosher food, the flavor absorbed into its walls can never be fully removed. Rather than becoming completely extracted when one attempts to kasher pottery, some of the absorbed taste remains and leaches out afterwards with each use, potentially spreading prohibited flavor into all subsequent cooking (Tosafos, Chullin 8a s.v. Shelivna). In other words, once pottery becomes treif, it may be impossible to make kosher again. (There are some circumstances in which it can be kashered, but these unusual situations are beyond the scope of this article.)

Some early authorities contend that, since glassware is made from sand, it should be treated like sand, or, more accurately, like pottery and cannot be kashered (Mordechai, Pesachim #574, and Avodah Zarah #826; Terumas Hadeshen 1:132, 2:151). Most of these authorities quote the source for this approach as Rabbeinu Yechiel of Paris, one of the baalei Tosafos.

3. Glass is like metal

Some rishonim rule that just as Chazal gave glassware the same halachic status as metal regarding the mitzvah of tevilas keilim, it has the same halacha regarding the laws of kashrus (Bedek Habayis of the Re’ah, 5:6; Shibbolei Haleket #207).

However, once we rule that glassware is like metal, in practice, it might become stricter than metal. This is because of a rule that, when a particular method of kashering may break an appliance, Chazal prohibited using that method, out of concern that someone will be afraid to kasher it properly (Pesachim 30b). Thus, although metal can be kashered by boiling the appliance (hag’alah), it may not be allowed to kasher glassware this way, because the owner may be afraid that it will crack (Mor Uketzi’ah end of 451). On the other hand, other authorities permit kashering glassware by hag’alah for Pesach and are not concerned that someone might be afraid to kasher it properly (Shu”t Maharsham 1:53 at end).

A major halachic ramification results from the above. Glassware that is meant to be used in the oven, such as Pyrex, should, therefore, be kasherable for Pesach, since presumably the owner will not be afraid to kasher it properly. Although this is not common custom, there are prominent halachic authorities who permit this (She’arim Hametzuyanim Bahalacha 116:11).

Difference between treif and Pesach

There is a dispute among rishonim whether glass that was used for hot chometz may be used for Pesach. Some authorities are more stringent regarding using chometz-dik glassware for Pesach than using it interchangeably between milchig and fleishig. For example, the Hagahos Semaq, a late baal Tosafos, writes: “Universal custom is not to use for Pesach any used pottery vessels (even those coated with metal or glass). Rabbeinu Yechiel prohibited using even used drinking glasses, since the Gemara compares glass to pottery, and sometimes people place bread into drinking glasses, in which instance they absorb the way pottery does.” The way this statement is quoted, it implies that Rabbeinu Yechiel did not permit any form of glassware kashering for Pesach (Hagahos Semaq 222:5).

Similarly, the Issur Vaheter (58:50), an early Ashkenazic posek, quotes the Semaq as ruling that it is prohibited to kasher glass for Pesach and it should be treated lechumra as questionable whether it is considered metal or pottery.

How do we rule?

Among earlier halachic authorities, it appears that there was a big difference between Sefardic and Ashkenazic practice regarding the use of glassware. The Beis Yosef cites most of the halachic sources we quoted above, and concludes, both in Beis Yosef and in Shulchan Aruch, that glassware does not absorb and therefore may be used for Pesach without any kashering procedure at all (Shulchan Aruch, Orach Chayim 451:26). Following his approach, it would appear that someone could purchase or rent used glass equipment from a treif source, without any need to kasher it.

On the other hand, early Ashkenazic custom appears to have been closer to the approach of Rabbeinu Yechiel cited above. For example, the Rema rules that chometz-dik glassware should not be used for Pesach and that it is not kasherable for Pesach use, even when it was used only for serving cold beverages and not used ever to store them.

Although most Ashkenazic authorities subsequent to the Rema follow his approach, some rule that Ashkenazim could follow the Sefardic practice and use glassware for Pesach without kashering it first (Mor Uketzi’ah,end of 451).

Other authorities raise a different question regarding the Rema’s ruling that glassware may not be used for Pesach. The Rema prohibits using glassware for cold drinks on Pesach, even when the glass is used only for cold beverages the entire year. The reason the Rema is stringent is because of concern that chometz may have fallen into the glass and became kavush, which means that chometz flavor absorbed into the glass.

The difficulty with this ruling is that the Rema himself rules that a vessel, even made of pottery, that stored chometz for a lengthy period of time may be used on Pesach, even when this long-term storage would create kavush (Orach Chayim 451:21; see Mishnah Berurah 451:122). How could the Rema treat glassware more stringently than pottery? The only reason to be stringent regarding glassware is according to the minority opinion that treats glassware as pottery!

This question is raised by the commentary Beis Meir (Orach Chayim 451:26), who answers that the Ashkenazic minhag to be stringent not to kasher glass was only regarding drinking glasses, since buying new ones for Pesach is not a major expense. However, the Rema ruled leniently regarding large storage vessels that are expensive, even when they are made from pottery, and certainly when they were manufactured from glass. In other words, even the Rema holds that glassware is inherently kasherable; there is only a custom not to kasher drinking glasses for Pesach since this does not incur a great expense.

There are several ramifications of the Beis Meir’s ruling:

An individual who cannot afford to purchase glassware for Pesach may use his regular, chometz-dik glassware. In this situation, he should kasher his drinking glasses. This approach is followed by the Chayei Odom and the Mishnah Berurah (451:156) who rule that, in a place where glassware is relatively unavailable, glass items should be cleaned well and then kashered for Pesach, by a method called miluy ve’iruy. In this kashering method, glasses are submerged completely in a basin or tub full of cold water for at least 24 hours, the water is changed and glasses are submerged again for at least another 24 hours, and then a third time for at least another 24 hours.

The Mishnah Berurah rules that, if someone does not ordinarily use his glassware for hot chometz or to store chometz, and they used their glasses for Pesach without any kashering at all, the food or beverage placed in them remains kosher for Pesach. More so, in a case of major loss, the Mishnah Berurah permits Pesach-dik food, even when it was placed hot into glassware that was previously used for hot chometz. He permits this only if the glassware was not used for chometz within the previous 24 hours. There are other authorities who are even more lenient (Taz; Pri Chodosh; cf. Shaar Hatziyun 451:196).

According to the Beis Meir’s conclusion, it is permitted to drink a kosher beverage, even a hot tea or coffee, in a “non-kosher” drinking glass. This opinion is mentioned by many halachic authorities (Keneses Hagedolah, Yoreh Deah 121:25 in Hagahos Tur 25; Darkei Teshuvah 121:2; Aruch Hashulchan, Yoreh Deah 121:2). Thus, if you are in a non-kosher house or hotel, the hot tea or coffee you are served in a glass is still kosher. And, if we refer to one of our opening questions: “After serving chicken soup in a glass, may I pour hot milk into the same glass?” — the answer, according to these authorities, is that one may. I suggest that, prior to putting this into practice, our readers should ask this question from their own rav or posek.

Conclusion

The Chiddushei Harim notes that pottery vessels become tamei only from their inside and not when something touches their outside. He explains that this is because a pottery vessel, itself, is considered without inherent value – its value is determined by what it contains, whereas vessels made from other materials have inherent value. On this basis, the Sfas Emes, the grandson and successor of the Chiddushei Harim, notes that man’s value is also determined by what he contains on the inside, not on his outer projected image.

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Second Zachor Readings

Question #1: Birchos haTorah min haTorah

Is birchos haTorah min haTorah?

Question #2: Parshas Zachor

Should a second parshas Zachor reading have a minyan?

Question #3: America, America

Is there an American angle to this halachic discussion?

Foreword

The halachic authorities dispute whether women are obligated to hear parshas Zachor, the Sefer Hachinuch (Mitzvah #603) ruling that they are exempt, whereas Rav Yaakov Ettlinger (author of Aruch Laneir and posek hador of western and central Europe during his lifetime), obligates them (Shu”t Binyan Tzion 2:8). A third opinion is that, although women are definitely required to observe the mitzvah of remembering what Amalek did to us, they are not required to hear parshas Zachor because it is a time-bound mitzvah miderabbanan (Shu”t Toras Chayim, Orach Chayim #37; Kaf Hachayim 685:30).

There is a second dispute, whether an individual is required min haTorah to hear the reading of parshas Zachor with a minyan, annually, which some rishonim require (Rosh, Berachos 7:20; Terumas Hadeshen 1:108) and others exempt (Sefer Hachinuch). If we combine the strictest interpretation of both rulings, we would conclude that women are obligated min haTorah to hear parshas Zachor annually with a minyan, although I am unaware of any early halachic authorities who rule this way.

In contemporary practice, women strive to hear parshas Zachor. To enable those taking care of children during the morning reading, many shullen schedule an additional reading some time later that day, to facilitate the hearing of parshas Zachor.

Some contemporary authorities have questioned this practice because of the following observation: There are poskim who forbid reading from a sefer Torah in public without reciting a berocha before and after the reading (Toras Raphael, Hilchos Keri’as HaTorah #2). This is based on the ruling of earlier prominent authorities who contend that such readings require the recital of a berocha min haTorah (Be’er Sheva, Sotah 41a; Shu”t Mishkenos Yaakov, Orach Chayim #63). Several early authorities attribute this position to the Talmud Yerushalmi (Shu”t Meishiv Davar 1:16; cf., however, Toras Raphael who disagrees) or other very early sources.

On the other hand, when there is no obligation to read from the Torah, many authorities forbid reciting a berocha when reading from a sefer Torah, considering it a berocha levatalah, one recited in vain (Elyah Rabbah 566:3; Pri Megadim, Mishbetzos Zahav Orach Chayim 566:7; Chayei Adam 31:11; Meishiv Davar 1:16; Shu”t Har Tzvi, Orach Chayim #52, #69, #70). This may potentially create a conundrum: It would be forbidden to recite berochos for an extra reading of parshas Zachor because of concerns about berocha levatalah. Yet, some authorities prohibit reading from the Torah in public without a berocha. Thus, we have a predicament whose obvious solution is to avoid extra public reading from a sefer Torah. On the other hand, we want to have an extra reading to facilitate fulfilling the mitzvah for those who cannot be in shul for the regular reading.

Other readings

A similar, but not identical, shaylah occurs on several other occasions, depending on various local customs. Many have the minhag to read sefer Devarim, or sections thereof, from a sefer Torah on the night of Hoshana Rabba. Similarly, many Chassidic kehillos read, on the first twelve days of Nisan, the passage in parshas Naso describing the dedication of the Mishkan, called parshas hanesi’im. There was also a custom that, upon completing the writing of a new sefer Torah, the sofer read from the brand new sefer Torah in front of the assembled (Toras Raphael). Other customs of reading from a sefer Torah on various occasions are recorded in different halachic sources (e.g., Shu”t Tashbeitz 2:39; Levush; Shu”t Minchas Yitzchak 8:84). Explaining the sources for this discussion and suggesting resolutions is the topic of this article.

Introduction

After the Rambam wrote his Sefer Hamitzvos, in which he listed his opinion of the count of the 613 mitzvos, the Ramban wrote an extensive commentary disputing dozens of points made by the Rambam. The Ramban also listed 34 mitzvos, 17 mitzvos aseih and 17 mitzvos lo saaseh, which he felt should be included in the count of the mitzvos according to the Rambam’s rules, but were omitted. In the Ramban’s listing of the “missing” mitzvos aseih, he includes the mitzvah (#15) to recite a berocha prior to reading the Torah.

Although it is unclear whether the Ramban here is counting a mitzvah to recite birkas haTorah prior to studying Torah, or a mitzvah to recite it prior to reading from a sefer Torah, several authorities assume that he meant the latter. In other words, although reading the Torah in public is not required min haTorah, when doing so, the requirement to recite a berocha is. All halachic authorities agree that the berocha after an aliyah is only a mitzvah miderabbanan.

Berocha before leining

The major discussion on this topic stems from the writings of three prominent acharonim, the Be’er Sheva (commentary to Sotah 41a), the Mishkenos Yaakov (Shu”t Mishkenos Yaakov, Orach Chayim #63) and the Toras Raphael (Hilchos Birchos haTorah #2).

These acharonim base themselves on a careful analysis of a passage of Gemara:

Rav Yehudah said, “What is the source from which we know that there is a requirement min haTorah to recite birkas hamazon after eating: ‘When you have eaten and been satisfied, you shall bless Hashem, your G-d, for the wonderful land that He gave you’ (Devarim 8:10). What is the source from which we know that there is a requirement min haTorah to recite birkas haTorah before Torah: ki sheim Hashem ekra, havu godel lei’lokeinu (Berachos 21a, based on Devarim 32:3), in which Moshe told the Jewish people, ‘I am about to sing praise to Hashem. Prior to my doing so, I will recite a berocha (ki sheim Hashem ekra) to which you should answer amen’” (havu godel lei’lokeinu) [Rashi, Berachos 21a s.v. Ki].

(1) What did Rav Yehudah mean when he required a “berocha before Torah?” Was he referring to:

            (a) What we usually call talmud Torah or limud Torah,or

            (b) Before reading from a sefer Torah, what we usually call keri’as haTorah?

(2) If he meant what we usually call limud Torah, what type of limud Torah is included?

The Gemara (Berachos 11b) cites a four-way dispute among amora’im what type of limud Torah requires birkas haTorah:

            (a) Only the written Torah.

            (b) The written Torah and the halachic midrashim on the written Torah.

            (c) In addition to the above, also before studying Mishnah.

            (d) In addition to everything mentioned above, also before studying Gemara.

The Gemara concludes that we recite birkas haTorah prior to any type of Torah learning. However, this does not teach us whether this is required min haTorah or only miderabbanan.

Let us return to the passage of Gemara quoting Rav Yehudah’s ruling that birkas haTorah is min haTorah and is derived from the pasuk in parshas Ha’azinu.

Rabbi Yochanan then adds to, and somewhat disagrees with, Rav Yehudah’s statement by claiming that, with the use of two applications of the principle of kal vechomer, we can derive that reciting a berocha before eating is min haTorah, as well as a berocha recited after learning. The Gemara ultimately refutes the applications of kal vechomer and, therefore, Rabbi Yochanan’s two rulings. Thus, recital of a berocha before eating and after learning are not required min haTorah.

The question that concerns the Be’er Sheva and the Mishkenos Ya’akov is:

To which berocha after Torah is Rabbi Yochanan referring? The only time we ever recite a berocha after Torah is the berocha recited after keri’as haTorah. This implies that the “berocha before Torah,” which both Rav Yehudah and Rabbi Yochanan agree is min haTorah, means the berocha recited before reading the Torah in public. The Be’er Sheva and the Mishkenos Ya’akov, therefore, conclude that the requirement min haTorah of birkas haTorah applies when reading the Torah in public. This includes:

(A) What we call keri’as haTorah on Shabbos, Mondays, Thursdays and holidays.

(B) The mitzvah of hakheil, when the Jewish king reads selections of sefer Devarim to the entire Jewish people on chol hamo’ed Sukkos in the year following shemittah (Mishnah Sotah 40b).

(C) When the Yisraelim who were on ma’amados, “Temple Duty,” read the Torah daily, during their rotation at the Beis Hamikdash (Mishnah Ta’anis 26a).

These acharonim conclude that the mitzvah of reciting birkas haTorah before we begin studying Torah every day is only miderabbanan.

Because the Be’er Sheva and the Mishkenos Yaakov conclude that both Rav Yehudah and Rabbi Yochanan agree that there is a requirement min haTorah to recite a berocha prior to any public reading of the Torah, this applies even if someone already recited birkas haTorah earlier in the day. The earlier recitation fulfilled only a mitzvah miderabbana, while the subsequent reading of the Torah in public requires recital of a berocha min haTorah.

However, as mentioned above, many authorities prohibit reciting birkas haTorah on a reading of the Torah that was not instituted either by the Torah or by Chazal. An interesting historical example is when the Netziv was asked, in the 1880’s, by a rav in Cincinnati the following shaylah: The community was dedicating a new sefer Torah, and the convenient day to schedule the dedication was Sunday, when people were off from work. In honor of the auspicious occasion, one of the organizers included a reading of the Torah, complete with berachos. The rav in Cincinnati strongly opposed this, contending that the berachos would constitute berachos levatalah, since Chazal never established reading the Torah on a Sunday that is not a Jewish holiday. The Netziv agreed with the rav’s ruling, commenting that it is permitted to read from the Torah, providing that no berachos were recited. However, according to the Be’er Sheva and the Mishkenos Yaakov, it is prohibited min haTorah to read from the Torah in public without reciting birkas haTorah.

Family feud

On the other hand, in response to a similar shaylah, Rav Raphael Shapiro, the Netziv’s son-in-law, author of Toras Raphael, ruled that it is prohibited to read from the Torah altogether. This is because some authorities prohibit reciting a berocha on this reading, and others, the Be’er Sheva and the Mishkenos Yaakov, rule that it is prohibited min haTorah to read the Torah without first reciting a berocha. The Toras Raphael concludes that the only solution is not to read from the Torah in public when it is not required.

Birchos haTorah min haTorah

At this point, we can address our opening question: Is birchos haTorah min haTorah?

The answer is somewhat complicated. According to the Ramban, there is definitely a requirement min haTorah, at times, to recite birchos haTorah. However, it is uncertain whether this means before studying Torah every day, or before reading the Torah in public. Among the rishonim,we find a dispute whether birchos haTorah before studying Torah every day is required min haTorah, a dispute that the Toras Raphael analyzes at great length. And we have two very prominent acharonim, the Be’er Sheva and the Mishkenos Yaakov, who contend that the requirement to recite birchos haTorah is min haTorah only before reading the Torah in public, but not when studying the Torah, in which case the requirement is only miderabbanan.

Later authorities

The question concerning whether we may read from the Torah in public to fulfill a custom without reciting birchos haTorah is discussed in some more recent teshuvos and articles. For example, Shu”t Minchas Yitzchak (8:84) discusses the custom, particularly but not exclusively, among Chassidim, of reading from a sefer Torah on the first twelve days of Nisan the portion of parshas Naso that describes the offerings that the nesi’im brought when the Mishkan was dedicated. Those who observe this custom do not recite a berocha before reading the Torah, nor should they, since most authorities rule that such a berocha would be levatalah, since no takkanas chachamim is observed. However, according to the Toras Raphael, it would seem that this should not be read with a minyan present, in order not to violate (according to the Be’er Sheva and the Mishkenos Yaakov) the mitzvas aseih of reading from a sefer Torah without a berocha.

Disputing the analysis of the Toras Raphael, the Minchas Yitzchak explains that, although these early poskim ruled that the requirement to recite birkas haTorah before keri’as haTorah is min haTorah, they never stated that it is required to recite a berocha prior to a reading that is optional. The Minchas Yitzchak concludes that since many great talmidei chachamim read from the Torah parshas nesi’im in the month of Nisan without reciting a berocha, this is the accepted halacha, not the ruling of the Toras Raphael.

Another, similar reason why these practices do not conflict with the ruling of the early acharonim is that, in these instances, each individual would like to read the Torah by himself, and the public reading is simply because of efficiency. Therefore, this is not considered a public reading of the Torah and there is no requirement to recite birchos haTorah (Shu”t Teshuvos Vehanhagos 1:380). Rav Moishe Shternbuch, who suggested this last approach, was referring to the custom of reading the book of Devarim on the night of Hoshanah Rabbah, which is also performed without a berocha.

Parshas Zachor

At this point, we can address the second of our opening questions: Should a second parshas Zachor reading have a minyan?

Now we can understand our conundrum: If a second parshas Zachor reading is scheduled and there is a minyan in attendance, the Toras Raphael would certainly require the recital of a berocha. According to the Be’er Sheva and the Mishkenos Ya’akov, it would seem that it is prohibited to read the additional reading of parshas Zachor without first reciting a berocha, because this violates the mitzvas aseih of the Torah. On the other hand, if no one is required to still hear the reading of parshas Zachor, many authorities would rule that reciting a berocha is a berocha levatalah. According to the Netziv, there would be nothing wrong with reading from the Torah when Chazal did not require it, as long as no berocha is recited. Thus, in his opinion, the second reading may take place as long as no berocha is recited. However, according to the Toras Raphael, we should, perhaps, not read the Torah in public at all, to avoid getting involved in the dispute. A simple solution might be not to have a minyan when the second reading takes place.

America, America

Is there an American angle to this halachic discussion?

Surprising as this might be, there are several angles to this discussion that involve American Jewish individuals and communities. I mentioned above that the responsum of the Netziv was addressed to a rav in Cincinnati, although I have no idea as to the identity of the rav. By doing some research, I was able to determine that the responsum of his son-in-law, the Toras Raphael, was addressed to Rav Yehudah Eliezer Anixter, a talmid of the Volozhin yeshivah who immigrated to the United States in 1871, eventually becoming a prominent rav in Rochester and Chicago, and the author of a sefer titled Chiddushei Avi. The Toras Raphael read one of the responsa in Chiddushei Avi and wrote the author his own responsum, in partial disagreement with Rav Anixter’s conclusion. And the above quoted Minchas Yitzchak was penned in reference to Chassidim from America visiting Eretz Yisroel who noted that the method of reading the parshas ha’nesi’im was done differently in Eretz Yisroel from the way it is done in chutz la’aretz, and asked the Minchas Yitzchak which approach is preferred.

Conclusion

In the introduction to Sefer HaChinuch, the author writes that the main mitzvah upon which all the other mitzvos rest is that of Talmud Torah. Through Torah learning, a person will know how to fulfill all of the other mitzvos. That is why Chazal instituted a public reading of a portion of the Torah every Shabbos, twice, and on Mondays and Thursdays. Knowing that the proper observance of all the mitzvos is contingent on Torah learning, our attention to keri’as haTorah will be increased, as well as our sensitivity to the recital of its berachos and our kavanah when reciting and listening to those berachos. This should lead to greater respect and attentiveness to the observance of all the mitzvos.

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Wanted Dead or Alive

Question #1: Getting Rid of those Bugs!

“May I trap or kill mosquitoes, bees, or wasps on Shabbos?”

Question #2: Hanging from the Lowest Tree

“I forgot to hang the flypaper before Shabbos. May I do it on Shabbos?”

Question #3: A Charming Shabbos

“May a snake charmer work on Shabbos?”

Answer: Catching or dispatching

We have all been in the following uncomfortable situation: Sometime during Shabbos, a mosquito appears in our vicinity seeking to earn its living. Although we realize that this creature requires its sustenance, we are not eager that we, our children or our guests should become mosquito fodder, even just as a minor donor. Are we permitted to trap or kill the mosquito?

Trapping living things, tzad, was an action necessary for acquiring some of the materials used to build the Mishkan, and is one of the 39 melachos, categories of prohibited activity on Shabbos (Mishnah Shabbos 73a and Rashi ad loc.). Killing living things also violates the melachos of Shabbos, a topic that we discussed last week. Here, we discuss many pertinent principles of Shabbos and some details of the melachah of tzad.

Shabbos nomenclature

When discussing what one may or may not do on Shabbos, the Mishnah and Gemara use three terms: (1) chayov, punishable, when a particular act constitutes melachah, meaning that it desecrates Shabbos by violating a Torah law; (2) patur, exempt, meaning it does not violate a Torah law, and (3) mutar, permitted, when an act may be performed on Shabbos. We will discuss the middle term, patur, which states that a particular forbidden act does not violate Torah law. This term usually indicates that the act is prohibited due to rabbinic sanction, but  sometimes the Sages permitted such acts. But first we will explain what makes performing a forbidden activity patur?

Meleches machsheves

The Gemara (Chagigah 10b; Bava Kama 26b; Kerisus 19b) teaches that the Torah prohibited only something that can be categorized as meleches machsheves, which can perhaps be translated as premeditated melachah. An obvious example of meleches machsheves would be trapping an animal to obtain its hide or meat. Similarly, someone who digs a hole to plant the base of a tree violates the meleches machsheves of choreish, plowing, and one who picks a fruit performs a meleches machsheves of kotzeir, harvesting.

Meleches machsheves is often explained by what it is not. Following that approach, I will provide three categories of labor that are exempt from being defined as desecrating Shabbos min haTorah, because they do not qualify as meleches machsheves, at least according to some opinions.

Mekalkeil

In general, an act constitutes meleches machsheves only when its direct result is beneficial. This means that an action that is inherently destructive does not violate Shabbos min haTorah, even when one needs the result. For example, digging a hole in the ground when one needs the earth but not the hole is defined as a destructive activity and prohibited only miderabbanan. The dug hole itself is a negative development, rendering the burrowing to be mekalkeil, not prohibited min haTorah, but only because of rabbinic injunction. However, digging a hole to plant or to create a posthole results in a positive benefit and is indeed prohibited min haTorah, since one wants the hole in the ground.

Bemino nitzad

Here is a second example of meleches machsheves that is particular to the melachah that we are discussing, tzad. The tanna’im (Shabbos 107b) dispute whether it is prohibited min haTorah to ensnare a creature that mankind does not typically use, such as a scorpion or a flea, which is called ein bemino nitzad, literally, a species that is not trapped. The halachic conclusion follows the lenient opinion, ruling that tzad applies only to a species that is bemino nitzad, commonly trapped, so that mankind can benefit from it. For example, a species that is eaten, from whose body a medicine is extracted, or whose hide is used as leather qualifies as bemino nitzad. The halachic authorities discuss whether trapping an animal for scientific research or so that one can have it as a pet makes the animal bemino nitzad (Rambam, Hilchos Shabbos 10:21; Chazon Ish, Orach Chayim 50:4 at end).

However, a species that is caught only because it is an annoyance has the status of ein bemino nitzad.

Why is this true? The purpose of trapping is to harness a living creature so that mankind can use it. Thus, tzad is a type of acquisition (see Shu”t Avnei Neizer, Orach Chayim 189:7; Biur Halachah, 316:2 s.v. Oh Choleh). However, trapping a creature that mankind does not generally use is not acquiring these creatures, but distancing them from potential victims. Therefore, most opinions conclude that trapping a species that is ein bemino nitzad does not violate the melachah of tzad, and is prohibited only because of rabbinic injunction. Thus, since flies are ein bemino nitzad, catching them would not violate a Torah prohibition. Hanging flypaper on Shabbos would still involve a rabbinic prohibition and it is similarly prohibited to set up a mousetrap on Shabbos (Magen Avraham 316:9; see Piskei Tosafos, Shabbos 17b #62).

By the way, many authorities consider mice to be bemino nitzad, since there are places in the world where their hide is used (Chayei Odom 30:7). There is also a dispute whether a non-kosher species harvested only as food is considered bemino nitzad (Ritva, Shabbos 106b; Nimla Tal, Meleches Tzad #37).

Melachah she’einah tzerichah legufah

Many authorities rule that another category of activity — Melachah she’einah tzerichah legufah, literally, an act not needed for its purpose — is not prohibited min haTorah because it is not considered meleches machsheves. In fact, there is a dispute among tanna’im whether a Melachah she’einah tzerichah legufah is prohibited min haTorah or only miderabbanan. Whereas Rabbi Yehudah contends that Melachah she’einah tzerichah legufah is prohibited min haTorah, according to Rabbi Shimon, these acts are prohibited only by virtue of rabbinic injunction.

What is a Melachah she’einah tzerichah legufah? Among the rishonim, we find differing opinions as to exactly how to define this term, and there are many instances where a dispute in halachah results. Since this complicated question is a bit tangential to our topic, I am going to present only one approach. According to Tosafos (Shabbos 94a s.v. Rabbi Shimon) and the Rivash (Shu”t Harivash #394), Rabbi Shimon contends that the 39 melachos are prohibited min haTorah only when performed for a goal or purpose similar to the reason why this melachah was done when constructing the Mishkan. However, performing a melachah to accomplish a purpose other than that for which this melachah was performed in the Mishkan qualifies as a Melachah she’einah tzerichah legufah. This means that it is prohibited only miderabbanan, according to Rabbi Shimon and those who rule like him.

Here is an example: Removing an item that has a bad odor from a reshus hayachid, an enclosed area, into a reshus harabim, an open area meant for public use, is a classic case of Melachah she’einah tzerichah legufah. Although moving something from a reshus hayachid into a reshus harabim constitutes the melachah of carrying, moving the foul-smelling item from a house to a reshus harabim does not constitute a melachah min haTorah, according to Rabbi Shimon, because the purpose of the carrying when building the Mishkan was to relocate the item to a new place. However, when removing a foul-smelling item, there is no significance attached to the place to which the item is moved; one’s goal is only to distance it from its current location. The public area does not constitute the goal of one’s act; rather, it is merely a convenient place to deposit unwanted material. For this reason, Rabbi Shimon contends that this act was not prohibited by the Torah, but only by the Sages. On the other hand, Rabbi Yehudah considers Melachah she’einah tzerichah legufah as conforming to the definition of meleches machsheves and prohibited min haTorah.

Although most rishonim conclude that the halachah follows Rabbi Shimon that Melachah she’einah tzerichah legufah is prohibited only because of rabbinic injunction, the Rambam and others rule, according to Rabbi Yehudah, that Melachah she’einah tzerichah legufah is prohibited min haTorah.

When exempt is permitted

There is a passage of Gemara that reflects both on our opening question and on a different aspect of the melachah of tzad. “Shemuel said: Whenever the Mishnah states that something is patur when performed on Shabbos, the activity is prohibited [because of a rabbinic injunction], with the exception of the following three instances, when patur means that the activity is permitted. The first case discusses catching a deer, the second is catching a snake and the third is lancing a boil” (Shabbos 3a; 107a, as explained by Tosafos, Shabbos 3a s.v. Bar). Shemuel proves from Mishnayos that, in these three instances, the acts are permitted (Shabbos 107a). The first two of these cases educate us to understand what constitutes the melachah of trapping. (The case of lancing a boil involves a different topic that we will leave for a different article.)

What are the first two cases presented by Shemuel? The first situation is when a deer entered a building, and someone sat in the doorway of the building, thereby preventing the deer’s escape. When that person sat down, he trapped the deer and therefore performed the melachah of tzad. This is true, even if he was not involved in coaxing the deer into the building. The Mishnah (Shabbos 106b) then states that if a second person sits alongside the first in a way that the deer’s escape is still blocked, even when the first person gets up, the second person has not desecrated Shabbos. This is because the second person did not trap the deer but merely guaranteed that a captured animal remains in captivity. Although the Mishnah says that the second person is patur, Shemuel explains that one may lechatchilah sit down alongside the first person, even if one’s intention is to keep the deer trapped when the first person gets up. This explains a different aspect of tzad — the melachah is making the animal available for human use, but once it is already trapped, there is no further violation in keeping it under human control.

The second case is based on two different mishnayos. One Mishnah (Shabbos 107a) permits catching a scorpion, so that it doesn’t bite, and another states that catching a snake to prevent it from biting does not violate Shabbos min haTorah, whereas catching it for medicinal uses does (Eduyos 2:5). Tosafos proves that both Mishnayos that permit tzad to protect someone are discussing creatures whose bite is painful, but not life-threatening, pikuach nefesh (Tosafos, Shabbos 3a s.v. Bar). Were the Mishnah discussing a creature whose bite is life-threatening, it would be obvious that one may kill it, because of the general rule that actions necessary to protect life supersede Shabbos and almost all other mitzvos.

Shemuel ruled that although catching non-dangerous creatures is ordinarily prohibited on Shabbos, since this involves only a rabbinic injunction the Sages permitted it under extenuating circumstances.

Why is the act of trapping non-dangerous creatures considered only a rabbinic injunction? We have already presented two possible reasons. The first is because of the principle of Melachah she’einah tzerichah legufah, since one has no interest in capturing a snake or a scorpion (Tosafos op. cit.). The second reason is that one is not catching these species to make them available for human use, which is an essential component of the melachah of tzad (Avnei Neizer, Orach Chayim 189:7; Biur Halachah, 316:2 s.v. Oh Choleh).

Mosquitoes versus snakes

Although we have discovered that one may catch snakes and scorpions that are not life-threatening, this does not tell us whether one may trap mosquitoes, bees or wasps. Although the sting or bite of these species is indeed painful, it is not usually as painful as a snake or scorpion bite. Thus, it might be that Chazal did not permit catching mosquitoes, bees or wasps.

We can presumably derive the answer from the following passage of Gemara:

“Someone who trapped a flea on Shabbos, Rabbi Eliezer rules him liable for desecrating Shabbos min haTorah, whereas Rabbi Yehoshua rules that his desecration of Shabbos was only of a rabbinic ordinance” (Shabbos 107b). The Gemara explains that this dispute is dependent on an issue that we discussed earlier. Does one desecrate Shabbos min haTorah if he traps a species that is not usually trapped? Rabbi Eliezer rules that he does, whereas Rabbi Yehoshua rules that he does not. Thus, it appears from this Gemara that although Shemuel proved that it is permitted to trap a scorpion, even of the non-deadly variety, one cannot trap a flea, which is considered only as causing discomfort.

Three types of varmints

We can, therefore, divide the different types of unpleasant biters and stingers into three categories:

1. Those that are potentially life-threatening to people. In this instance, if there is even the slightest possibility of danger, one may kill or catch them on Shabbos.

2. Those whose bite will be very painful, but there is no life-threatening danger. These may be trapped on Shabbos, provided that one’s intent is only to save people from harm (Rambam, Hilchos Shabbos 10:25). However, it is forbidden to trap if one intends to use the insect, reptile or arachnid. (Modern biology categorizes spiders and scorpions as arachnids, because they have eight legs, are carnivorous and are wingless. If we want to categorize insects and arachnids together, we should use the word arthropods, but that still excludes snakes and other reptiles. So, for most of this article, I have simply used the word creatures. My apologies to the scientists who are reading this.)

3. Those whose bite will be unpleasant, but not highly painful. In this instance, there is a dispute among the rishonim. Tosafos and the Rosh quote from an earlier baal Tosafos named Rav Poras that, if one sees that an insect may bite him, he is permitted to remove the insect. When the insect is not so close to him, he may brush the insect off, but he may not trap it.

Not all authorities accepted Rav Poras’ approach. The Mordechai (#402) quotes Rav Yehudah Gaon that he noticed that the “elder rabbis” did not trap fleas, even when they were on their skin. The Beis Yosef, however, contends that even Rav Yehudah Gaon accepts the ruling of Rav Poras, but that he himself practiced this as a personal chumrah, not as the required halachah that he would rule for others. There are other rishonim, however, who certainly disagree with Rav Poras and prohibit trapping mosquitoes, even when they are on your skin, since they are only a discomfort (Meiri, Shabbos 107b).

Consensus

The consensus of halachic authorities follows Rav Poras, although there is a dispute among them whether it is permitted to catch the insect only when it is actually biting (Shulchan Aruch, Orach Chayim 316:9; Bach) or whether one may remove the insects even when they are in close proximity (Taz 316:8; Magen Avraham 316:18; Elyah Rabbah). The Mishnah Berurah (316:37) concludes that when one can brush off the insect, he should not rely on the heter of trapping it, but he implies that one may trap the insect if brushing it off will not suffice.

Answers

At this point, let us take a fresh look at our original questions:

“May I trap mosquitoes, bees, or wasps on Shabbos?”

The answer is that if the insect is about to attack someone, one may trap it. One may also trap it if its sting or bite is very painful, and certainly if it is potentially dangerous.

May one hang flypaper on Shabbos? The answer is that one may not.

“May a snake charmer work on Shabbos?” If one is not intending to use the snake, it is permitted. This is all the more so if the snake is dangerous.

In conclusion

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos, to ensure that Shabbos is a day of rest. He points out that the Torah does not prohibit doing avodah, which connotes hard work, but melachah, which implies purpose and accomplishment. We certainly see this idea borne out by the ideas of meleches machsheves, which denote the purpose of the action, and have no correlation at all to the amount of energy expended. The goal of Shabbos is to allow Hashem’s rule to be the focus of creation by our refraining from our own creative acts (Rav Samson Raphael Hirsch Commentary to Shemos 20:11).

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May I Take Lives?

Introduction

One of the 39 melachos on Shabbos is netilas neshamah, literally, taking a life. Although we may not want to consider this to be a constructive activity, we recognize that the animal world was placed under our control to use it responsibly and respectfully. This article will discuss some of the details of the halachos of Shabbos that are included in this melacha.

When listing the melachos, the Mishnah, refers to it as hashocheit, meaning he who slaughters. (Later in the article, I will discuss why the Mishnah refers to it in this manner, rather than the more technically accurate hanoteil neshama.) To quote the Mishnah, “One who traps a deer, one who slaughters it, one who skins it, one who salts the hide, one who tans the hide, one who scrapes off the hair, and one who cuts it to size” (Shabbos 73a). Performing any of these activities on Shabbos violates one of the 39 main categories of desecrating Shabbos, what we call an av melacha. As we will see shortly, there are also tolados melacha, subcategories of these 39, which also involve a Torah violation of Shabbos.

An obvious question is that the Mishnah lists “salting the hide” and “tanning the hide” as two different melachos, which is strange, since salting is one of the stages in tanning, and, therefore, does not comprise a separate av melacha. The Gemara notes that this is indeed true, and that “salting” should therefore be deleted from the Mishnah. Since this would result in the Mishnah listing only 38 melachos and not 39, the Gemara explains that a different melacha, called mesarteit, should be included. Mesarteit means “marking,” which, according to Rashi, refers to scoring or marking leather in order to know where to cut it (Shabbos 75b). According to the Rambam (Hilchos Shabbos 11:17), mesarteit is scoring paper or parchment in order to be able to write on it neatly. The Rambam explains that a toladah of this melacha would be to mark lumber prior to sawing it. Marking a precious stone in order to decide how to cut it is another application of mesarteit (Minchas Chinuch). An interesting contemporary example might be when a surgeon marks a patient’s skin where he intends to make his incision.

Purpose of shocheit

Returning to shocheit, this melacha was necessary to prepare materials for the construction of the Mishkan, such as the hides of the rams and the techashim, the unusual species that appeared on earth so that its hide could be used in the construction of the Mishkan and then became extinct (Shabbos 28b).

Chilazon catching

There is halachic discussion regarding whether the melacha of shocheit was necessary to create the dyes prepared from the chilazon, the fish from which the techeiles was made. Allow me to explain. The Gemara (Shabbos 75a) quotes a beraysa, a teaching dating to the era of the Mishnah, that there is a machlokes tanna’im regarding someone who catches a chilazon and squeezes out its liquid used for dyeing. Does he violate only the melacha of trapping or is he also liable for extracting the dye, which would violate the melacha of dosh, threshing. The Gemara then asks why this process does not also violate the melacha of netilas neshamah. The Gemara quotes two answers to this question:

Rabbi Yochanan explains that processing dyes from a live chilazon indeed violates netilas neshamah, but the beraysa omits this fact, because it is discussing a case where the chilazon is already dead.

Rava answers that the beraysa may indeed be discussing someone extracting dye from a live chilazon, yet he does not violate netilas neshamah because the dyer is trying to keep the chilazon alive while he extracts its dye, since it produces better color when it is alive (Shabbos 75a). Notwithstanding the fact that the extraction will kill the chilazon, since the dyer is trying to keep it alive, he does not violate a melacha for killing it, according to this opinion.

Bleeding

Causing a person or animal to bleed on Shabbos is a Torah violation of shocheit. Which of the 39 melachos does this violate? This is the subject of a major dispute among the rishonim, many of whom conclude that one violates the melacha of netilas neshamah. A question already raised by the rishonim is that if netilas neshamah is the taking of life, why does one violate it when all he did was cause a loss of blood?

The answer is that since the posuk states, ki hadam hu hanefesh, that blood is life, causing bleeding is considered, for the purposes of this melacha, the same as taking life (Tosafos, Kesubos 5b s.v. Dam and Shabbos 75a s.v. Ki).

Causing what we call a black-and-blue mark, which means that there is some form of bruising or superficial bleeding beneath the skin, also violates shocheit min haTorah (Shabbos 107b and Rashi).

As we have learned, the concept of meleches shocheit is taking the life of an animal. It refers to the instances in which it was necessary to take an animal’s life (netilas neshamah) in order to prepare materials for the construction of the Mishkan. However, this netilas neshamah did not require ritual slaughter. To quote the Rambam (Hilchos Shabbos 11:1): “One who slaughters is obligated for desecrating Shabbos, and not only one who slaughters, but anyone who takes the life of any living creature, be it a mammal, a bird, a fish or a creeping creature; whether he took its life through shechitah, nechirah, or by beating it.” I will explain shortly what the word nechirah means.

Drowning

Several later authorities conclude that drowning an animal on Shabbos similarly violates netilas neshamah min haTorah (Shu”t Chavos Yair #164; Nishmas Odom 31:3).

Fish out of water

Removing a fish from water violates netilas neshamah (Rashi, Shabbos 107b; Rambam, Hilchos Shabbos 11:1). To quote the Gemara, “Shmuel said, one who removes a fish from water is guilty of desecrating Shabbos once a coin-sized part of its skin has dried out” (Shabbos 107b). The Gemara then adds that this is true when the dried-out area is between its fins, since, once the fish has dried out this much, it will die, even should one return it to water.

One who catches a fish and hauls it out of the water violates both trapping, tzad, and taking its life. If it was caught from before Shabbos, but left in the water until Shabbos, one who removes it from the water is in violation only for killing it. Someone who trapped the fish on Shabbos and placed it into a bucket of water violated tzad, but not killing it.

Wrong name

At this point, I will discuss a question alluded to earlier. Although when we use the word shechitah, we ordinarily mean the halachically accepted method of preparing an animal for the Jewish table, the word can be used as a translation for any instance in which one would use the word slaughter in English. (See, for example, Yirmiyohu 52:10.) Why, then, does the Mishnah call the melachahashocheit,” rather than the broader and more accurate term hanoteil neshamah, “one who takes the life of an animal?”

The answer is that, in truth, the melacha is killing an animal and not necessarily shechting it. However, the Mishnah (Shabbos 73a) uses the term “hashocheit” because it chooses, for its own educational reasons, the example of a deer (“one who traps a deer, one who slaughters it, etc.”), and prefers expressing the name of the melacha in the context of processing it for kosher food.

Baking or cooking?

This is similar to another case in the same Mishnah, regarding the melacha that we usually call bishul, cooking, which the Mishnah calls “ofeh,” baking. The “cooking” performed in the construction of the Mishkan was the heating of dyes in vats, in which cloth was placed for dyeing. Nevertheless, the Mishnah calls the melacha ofeh, baking, since it fits the Mishnah’s pedagogic style better to refer to the baking of bread, notwithstanding that no baking was involved in the construction of the Mishkan (Shabbos 74b).

Nechirah

We quoted, above, the Rambam’s statement that someone who kills an animal by means of nechirah has violated the av melacha of netilas neshamah. What is nechirah?

In Modern Hebrew, the word nechirah means stabbing an animal to death, a common method of non-kosher slaughter. However, there is no evidence in traditional sources that this is what the word means. From the Mishnah (Bava Kama 7:5; Chullin 5:3; 6:2), we see that the word nechirah refers to a means of killing an animal, but it is unclear exactly which method is intended. Further complicating matters is that Rashi, in two different places, presents two contrary approaches. In Chullin (85b) he explains nechirah to mean choking an animal to death, whereas in Bava Kama (78b), he understands it differently, relating the word nechirah to the Hebrew word for nostril, nechir, which has the same root.

The Rambam could not have understood nocheir to mean choking, because he explains (Hilchos Shabbos 11:1) that choking an animal is a toladah of netilas neshamah, whereas he explains that nechirah is the av melacha itself. Since he wrote no other description, we cannot ascertain what he understood nechirah to mean. Thus, we are left with no definitive conclusion regarding what constitutes nechirah.

Av versus toladah

The statement of the Rambam that I just quoted raises a different question: Indeed, why is choking an animal only a toladah of netilas neshama and not the av melacha itself? Perhaps this is because choking withholds something vital from the animal (air) rather than directly killing it (Nimla Tal, Meleches Shocheit #32).

Dyeing or dying?

In this context, we cannot ignore a seemingly very strange passage of Gemara (Shabbos 75a-b, as explained by Tosafos). “Why is slaughtering on Shabbos a punishable offense for desecrating Shabbos? Rav said because of dyeing, and Shmuel said because of taking a life.” The Gemara then asked of Rav, is slaughtering only a violation of dyeing and not of taking a life? To this, the Gemara replies that Rav meant that slaughtering violates two prohibitions on Shabbos, one for taking a life and the other for dyeing. The Gemara then explains why Rav contends that the shocheit also violates dyeing: The butcher wants part of the hide of a freshly slaughtered animal to look bright red, because it attracts customers interested in purchasing fresh meat. This is an adequate reason to consider the slaughtering a melacha of dyeing.

Dies after Shabbos?

What is the halacha if someone removed a fish from water towards the very end of Shabbos, but the fish did not die until Shabbos was over? Has the person violated Shabbos min haTorah, since his action was performed on Shabbos, or has he not, since the fish did not die until motza’ei Shabbos? This subject is debated by several late authorities (see, for example, Rashash, Shabbos 73a; Minchas Chinuch 298:8; Tzafnas Paneiach, Hilchos Shabbos 9:1; Eglei Tal, Meleches Zorei’a 8:8).

Positive purpose

A general principle regarding the melachos of Shabbos is that they are prohibited min haTorah only when they provide a positive benefit, what we call a tikun (Mishnah Shabbos 105b). Performing a melacha activity whose direct result is negative is called mekalkeil and does not violate Shabbos min haTorah. For example, digging a hole on Shabbos only because one needs some earth with which to cover a spill is not a violation of the melacha min haTorah, but only miderabbanan. The reason is that the hole is itself not an advantage. One violates the melacha of choreish, plowing, only when one creates a furrow or something similar, such that the digging itself results in something beneficial.

A consequence of this principle is that violating netilas neshamah min haTorah requires that the result is positive – it creates or is a stage in the creation of meat, leather, dye or something similar. (Although there is a tanna, Rabbi Shimon, who rules that netilas neshamah is an exception to the general rule of mekalkeil [Shabbos 106a], the halacha does not follow his approach [Rambam, Hilchos Shabbos 8:8, 12:1; Rashi, Chullin 40a s.v. Shalosh; Tosafos, Chullin 29b s.v. Kegon].)

Killing insects

The halacha that a melacha activity is prohibited min haTorah only when its results are positive affects the following common question: Is killing annoying insects on Shabbos prohibited min haTorah? If it is prohibited min haTorah, the only reason to permit eliminating these insects is when they pose a threat to life. However, if the prohibition is only miderabbanan, there may be other grounds upon which to permit this, under extenuating circumstances. Although we will leave details of this for a different time, we now realize that a Torah prohibition is involved only when someone intends to put the insect remains to good use.

I will now present a more detailed discussion about this idea, which requires an introduction germane to a different, seemingly unrelated topic.

Value added

It is prohibited min haTorah to have any benefit from something that was used to worship idols. The Gemara (Chullin 8a) rules that, notwithstanding this law, one is permitted to perform the act of shechitah with a knife that was designated for idol worship. How can this be permitted?

The Gemara assumes that an animal is worth more in the marketplace when alive than after shechitah. This was certainly true in the time of the Gemara, when a living animal could be used for hauling or other employment, something difficult to get it to do after shechitah. The Gemara explains that since an animal is worth more alive than dead, no value was added when the prohibited appliance changed the animal from employee to food. Thus, shechitah did not add any value, and the shechitah knife’s contribution is considered negative. In other words, this act is considered mekalkeil. And this is halachically true, even if you are a butcher with a long line of customers waiting to purchase fresh meat.

The Gemara then states that, although we have established that the avodah zarah knife may be used to shecht the animal, it is forbidden to use that knife to slice up the meat after shechitah has been completed. This is because, at this point, cutting up and slicing the meat add financial value.

The animal is sick

There is an old Yiddish proverb: When a poor man eats chicken, one of them is sick. This proverb can be used to explain the next passage of the Gemara that we have been studying: Rava explained that sometimes it is prohibited to shecht with this avodah zarah knife. When? In the case of a sick animal whose life is in danger, but it is not a tereifah, meaning that its illness does not affect its kashrus status. In this instance, slaughtering the animal, thus permitting its meat for Jewish consumption, increases the value of the animal, since a sick animal cannot work and may die without the benefit of shechitah, which would severely decrease its value. Thus, this shechitah adds financial value, and, as a result, may not be performed with an avodah zarah knife.

Honored guest

The next point in the Gemara is that although we have just established that one may not slice up meat with an avodah zarah knife, there is a situation in which this is permitted. When is this? If it is a nice cut of meat that would be suitable to serve to an honored guest, but one chooses to cut it up. Although this may make it more serviceable for your family, on an objective level it has decreased the value of the meat, since upper echelon people would no longer purchase it. Since the slicing in this instance reduces the commercial value of the meat, it is considered mekalkeil, and therefore permitted to be done with an avodah zarah knife.

Isn’t all shechitah mekalkeil?

On the basis of this Talmudic discussion, Tosafos (Shabbos 106a) asks: Should not every act of shechitah qualify as mekalkeil, whenever the animal is worth more as a work animal? If that is true, then most acts of shechitah will be exempt from desecrating Shabbos, something that the Gemara, in the above-quoted dispute between Rav and Shmuel, should have noted, but did not.

There are several answers to this question. Some assume that the two mitzvos, Shabbos and avodah zarah, follow different rules. Regarding avodah zarah, there must be a financial net gain for it to be considered that one “benefited” from the prohibition. Regarding the laws of Shabbos, a person’s subjective interest that this animal becomes meat is enough reason to render the melacha a tikun (Sefer Yerei’im).

Conclusion

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 work with purpose and accomplishment. On Shabbos, we refrain from altering the world with our own creative acts and instead emphasize Hashem’s role (Shemos 20:11). We thereby acknowledge the true Builder and Creator of the world and all that it contains.

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The Basics of Techum Shabbos

Question #1: Camp sisters

“My sister’s family and ours are each spending Shavuos at nearby campsites. We were told that we could get together at a third spot between our two places for a Yom Tov barbecue. If we return on Yom Tov with the leftovers to our separate campsites, must we keep track of who brought which food?”

Question #2: Bungalow bar mitzvah

“A friend is making a bar mitzvah in a nearby bungalow colony. How far away can the colony still be within my techum Shabbos?”

Question #3: Eruv Techumin

“A lecturer will be speaking in the mountains not far from where I will be spending Shabbos. I was told that he will be just a bit beyond my techum Shabbos. Is there a way that I can go to hear him?”

Introduction:

In parshas Beshalach, the Torah recounts the story of the manna, also including the unbecoming episode where some people attempted to gather it on Shabbos. In the words of the Torah:

And Moshe said, “Eat it (the manna that remained from Friday) today, for today is Shabbos to Hashem. Today you will not find it (the manna) in the field. Six days you shall gather it, and the seventh day is Shabbos –there will be none.”

And it was on the seventh day. Some of the people went out to gather, and they did not find any.

And Hashem said to Moshe: “For how long will you refuse to observe My commandments and My teachings? See, Hashem gave you the Shabbos. For this reason, He provides you with a two-day supply of bread on the sixth day. Each person should remain where he is — no man should leave his place on the seventh day” (Shemos 16:25-29).

Staying in place

Although someone might interpret the words, Each person should remain where he is — no man should leave his place on the seventh day, to mean that it is forbidden even to leave one’s home, this is not what the Torah intends. According to Rabbi Akiva (Shabbos 153b; Sotah 27b; Sanhedrin 66a), the Torah, here, is indeed prohibiting walking beyond your “place” on Shabbos, although this proscription only prohibits walking more than 2000 amos (approximately half to two-thirds of a mile*) beyond the “locale” where you are spending Shabbos. This border beyond which it is forbidden to walk is called techum Shabbos, quite literally, the Shabbos boundary. How do we determine where this boundary is, beyond which I may not walk on Shabbos?

Some basic factors determine the extent and boundaries of one’s techum Shabbos. One is whether you are spending Shabbos within a residential area or not. I am going to present several options which will help explain how to determine someone’s techum Shabbos.

Our first case is someone spending Shabbos in a typical city, town or village where the houses are reasonably close together, meaning that the distance between the houses is 70 2/3 amos (about 105-120 feet*) or less. In this instance, one’s techum Shabbos is established by measuring the 2000 amos from the end of the city, town or village. The “end” of the city is determined, not by its municipal borders, but by where the houses are no longer within 70 2/3 amos of one another.

When two towns or cities are near one another, halachah will usually treat the two towns as one, provided that the houses of the two towns are within 141 1/3 amos of one another (Mishnah, Eruvin 57a). This is twice the distance of the 70 2/3 amos mentioned above. The details of the rules when and whether one combines two cities for determining techum Shabbos will be left for another time.

Techum Shabbos in a bungalow colony

Until now, we have discussed the techum Shabbos of someone spending Shabbos in a city. How far is the techum Shabbos of someone spending Shabbos in a resort hotel, side-of-the-road motel, or bungalow colony?

Someone spending Shabbos in a bungalow colony will have a techum that is at least 2000 amos beyond the last house of the colony. If there are other houses or bungalows within 70 2/3 amos of the residences of your colony, those houses or bungalows are included within your “place.” Under certain circumstances (beyond the scope of this article), they can be included within your “place” even if the houses or bungalows are within 141 1/3 amos of one another.

If the house, hotel or motel in which one is spending Shabbos is outside a city and more than 70 2/3 amos from any other residential building, one measures the techum Shabbos from the external walls of the house.

Shabbos while hiking

Someone spending Shabbos in an open field is entitled to four amos (between 6 – 7.5 feet*) as his “place,” and the 2000 amos are measured from beyond these four amos. His “place” is determined by where he is located at sundown on Friday evening.

Proper placement

We have now established that the definition of one’s “place” for techum Shabbos purposes depends substantively on whether one’s residence for Shabbos is indoors and on whether there are other residences nearby. We will now learn that although techum Shabbos is a boundary of 2000 amos, one usually has a greater distance in which one may walk. This is because techum Shabbos is always measured as a rectangular or square area. We take the four points that are the easternmost, the southernmost, the westernmost and the northernmost points of your “place,” and then draw an imaginery straight line that begins at 2000 amos beyond each of these points. In other words, we will measure 2000 amos east of the easternmost point and draw an imaginery north-south line at that point. We will similarly measure 2000 amos north of the northernmost point and draw there an imaginery east-west line. We repeat this for the other two directions of the compass. The result is a rectangle (or perhaps a square) whose four closest points are each 2000 amos distant from your “place.” Obviously, this means that the techum Shabbos area is significantly larger than 2000 amos beyond one’s “place.” This establishes the techum within which one is permitted to travel on Shabbos. By the way, all the rules of the laws of techum apply on Yom Tov as well.

Property placement

One of the interesting and lesser-known details of the laws of techum Shabbos is that possessions are also bound by the laws of techum Shabbos. This means that my possessions cannot be transported on Shabbos beyond the area in which I myself can walk. This halachah is not usually germane to the laws of Shabbos, since, in any instance, it is forbidden to carry on Shabbos outside of an enclosed area. The halachah is therefore more germane on Yom Tov, when one is permitted to carry. For this reason, the discussion of these laws is in mesechta Beitzah, which deals with the laws of Yom Tov. This subject is one of the main topics of the fifth chapter of the mesechta.

Camp sisters

At this point, we can discuss our opening question: “My sister’s family and ours are each spending Shavuos at nearby campsites. We were told that we could get together at a third spot between our two places for a Yom Tov barbecue. If we return on Yom Tov with the leftovers to our separate campsites, must we keep track of who brought which food?”

These two families are spending Yom Tov in locations that have different techumin, yet they are close enough that there is some overlapping area located within both of their techumin. Each family may walk on Yom Tov to this overlapping area, carrying the items necessary for the barbecue. Everyone must be careful not to walk beyond the area of his own techum. In addition, since the items used for the barbecue were owned by one or the other of the families when Yom Tov started, each item may not be removed beyond its owner’s techum until Yom Tov is over. Thus, if one sister brought the hotdogs or the paper plates, the other sister may not take those items back with her, if she will be removing them to a place beyond her sister’s techum.

Min hatorah or miderabbanan?

The rules of techumin that I have so far presented are held universally. However, there is a major dispute whether these rules are min hatorah or miderabbanan. There are three basic opinions. The tanna Rabbi Akiva, mentioned above, rules that the Torah forbade walking on Shabbos more than 2000 amos from one’s place, as we previously defined it. The Sages who disagreed with Rabbi Akiva contend that the prohibition of traveling 2000 amos is only miderabbanan. (Whether Rabbi Akiva held that the rules of techumin on Yom Tov [as opposed to Shabbos] are prohibited min hatorah or only miderabbanan is a dispute among rishonim; see Rashi, Tosafos, and Turei Even, Chagigah 17b.) However, there is a further dispute whether the Sages contend that there is no prohibition of techumin min hatorah at all, and the prohibition is always only miderabbanan, or whether the basis for the prohibition is min hatorah. According to the Talmud Yerushalmi (Eruvin 3:4), traveling more than 12 mil, which is the equivalent of 24,000 amos (approximately 6 – 8.5 miles*), is prohibited min hatorah. This last position is quoted by the Rif (end of the first chapter of Eruvin). Several rishonim rule according to this Yerushalmi (Rambam, Hilchos Shabbos 27:1 and Sefer Hamitzvos, Lo Saaseh #321; Semag (Lo Saaseh 36); Sefer Hachinuch, Mitzvah #24). On the other hand, many rishonim (e.g., Baal Hamaor, Milchemes Hashem, and Rosh, all at the end of the first chapter of Eruvin; Ramban’s notes to Sefer Hamitzvos, Lo Saaseh #321; Tosafos, Chagigah 17b s.v. Dichsiv) contend that the Bavli disagrees with this Yerushalmi and holds that the concept of techum Shabbos is completely miderabbanan, and that the halachah follows the Bavli, as it usually does.

A nice-sized place

Six miles sounds like a distance considerably more than I would walk on a Shabbos. From where did the Yerushalmi get this measurement?

The basis for this distance is the encampment of the Benei Yisrael while in the Desert, which occupied an area that was 12 mil by 12 mil. Thus, when the Torah told each Israelite not to leave his “place,” it prohibited walking outside an area this size (Tosafos, Chagigah 17b s.v. Dichsiv). According to the Talmud Yerushalmi, no matter when and where one is spending Shabbos, one draws a square or rectangle 12 mil by 12 mil around one’s city, colony or campground and this area is considered your “place.” Beyond this area, the Torah prohibited you to walk, according to the Yerushalmi.

Although it is anyway prohibited to walk beyond one’s 2000 amos techum on Shabbos and Yom Tov because of the rabbinic ruling of techumin, there are some practical instances where the question of whether there is a Torah-mandated techum of 12 mil becomes germane. For example, the Gemara (Eruvin 43a) discusses whether the prohibition of techumin applies when one is more than ten tefachim above ground level, called yesh techumin lemaalah miyud or ein techumin lemaalah miyud. An example of this case, quoted by the poskim, is a situation in which someone wants to walk quite a distance on Shabbos atop narrow stands or poles that are all more than ten tefachim above ground. If one rules that there is no law of techumin above ten tefachim, ein techumin lemaalah miyud, then it is permitted to travel this way on Shabbos, no matter how far one goes. On the other hand, if there is a law of techumin above ten tefachim, it is prohibited to travel this way.

This question is raised by the Gemara, which does not reach a definite conclusion (Eruvin 43a). Both the Shulchan Aruch and the Rema (Orach Chayim 404:1) rule that one may travel lemaalah miyud for a distance greater than 2000 amos,because one may be lenient in a doubt regarding the rabbinic prohibition of techum Shabbos. However, since traveling 12 mil is prohibited min hatorah according to those authorities who rule like the Yerushalmi, one should be stringent not to travel lemaalah miyud for a distance of 12 mil or farther.The Gra, however,rules that one may disregard the opinion of the Yerushalmi and the ruling of the Rambam, because the halachah follows the Bavli that there is no prohibition of techum at all min hatorah. Since the prohibition of techumin is always miderabbanan, one may be lenient to rule that ein techumin lamaaleh miyud. A contemporary application of these opinions is if someone was on an airplane when Shabbos began (for example, because of a life-threatening emergency), would he be permitted, upon landing, to leave the airport terminal before Shabbos ends.

How do we rule?

Regarding the dispute between Rabbi Akiva and the Sages whether the requirement of remaining within a techum of 2000 amos is min hatorah or miderabbanan, it is universally accepted that we follow the opinion of the Sages that techum Shabbos of 2000 amos is miderabbanan. A result of this ruling is that if someone needs to use comfort facilities and there are none available within his techum, he is permitted to leave his techum for this purpose, because of the rule that kovod haberiyos, human dignity, supersedes a rabbinic prohibition (Eruvin 41b, based on Berachos 19b).

Moving my techum Shabbos

“A lecturer will be speaking in the mountains not far from where I will be spending Shabbos. I was told that he will be just a bit beyond my techum Shabbos. Is there a way that I can go to hear him?”

The answer is that one certainly can, by creating an eruv techumin. This halachic entity allows me to move the “place” from where we measure my techum Shabbos. Ordinarily, my techum Shabbos is measured from where I am when Shabbos starts. However, when I make an eruv techumin, I move my “place” to the location of the eruv. If my eruv is placed such that both locations — where I am when Shabbos begins and where the speech will be delivered — are within its techum Shabbos, I may go hear the speaker.

But be careful. Creating an eruv techumin is not only a leniency, it also creates a stringency. Since I cannot be in two different “places,” when I use an eruv techumin, I have moved my techum Shabbos, not expanded it. Although I gain in the new direction, I lose the full techum I would have had in my actual location.

In this way, eruv techumin is different from the other two types of eruvin, eruv tavshillin made when Yom Tov falls on Friday, and eruv chatzeiros, which is made so that I can carry between two adjacent, enclosed properties that are owned by different people. The other two eruvin create leniencies but have no attached stringencies. For this reason, the other two eruvin can be made for someone who does not know that the eruv is being made, since it provides him with benefits and no liabilities. However, since an eruv techumin includes liabilities, one cannot make an eruv techumin for someone who does not want it or who does not know about it (Mishnah, Eruvin 81; Shulchan Aruch, Orach Chayim 414:1).

Only for a mitzvah

There is another major difference between eruv techumin and the other two types of eruvin. One may use an eruv techumin only if there is a mitzvah reason to walk where it would otherwise be outside one’s techum (Eruvin 31a, 82a; Shulchan Aruch, Orach Chayim 415:1). For example, someone who wants to hear a shiur or attend a sheva berachos may use an eruv techumin to do so. On the other hand, one may make and use either an eruv tavshillin or an eruv chatzeiros even if there is no mitzvah reason to do so.

How do I make an eruv techumin?

To make an eruv techumin, one puts some food before Shabbos where you want your “place” for Shabbos to be. There must be enough food there so that each person who wants to use the eruv techumin could eat two meals. If one uses a condiment for an eruv, one needs to have enough so that each person who wants to use the eruv would have enough condiment for two meals. One recites a berocha asher kiddeshanu bemitzvosav vetzivanu al mitzvas eruv, and then makes a declaration that this is his eruv to permit him to walk in this direction.

Since this food will basically be left exposed to the elements and animals, many people use a bucket of saltwater, which qualifies as an eruv techumin. Note that saltwater does not qualify for the other two types of eruv, eruv chatzeiros and eruv tavshillin. Another popular option is to use a jar of peanut butter.

Because there are many complicated laws about eruvin that are beyond the scope of this article, I suggest that someone who needs an eruv techumin should consult with his rav or posek.

Who instituted eruv techumin?

The Gemara teaches that Shelomoh Hamelech instituted eruvin (Eruvin 21b). We find a dispute as to which type of eruv the Gemara is referring to. Rav Hai Gaon (Teshuvos Hageonim #44) explains that Shlomoh Hamelech instituted eruv techumin, whereas Rashi (Eruvin 21b) and the Rambam (Hilchos Eruvin 1:2) explain that he instituted eruv chatzeiros.

Conclusion

The Gemara teaches that the rabbinic laws are dearer to Hashem than the Torah laws. In this context, we can explain these mitzvos, created by Chazal to guarantee that the Jewish people remember the message of Shabbos.

* All measurements in this article are meant for illustration only. For exact figures, consult your rav or posek.

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Pure Gold and Copper

Question #1: Nickel and Platinum

As far as the laws of tumah and taharah are concerned, what is the halachic status of metals that have been discovered and isolated since the times of Chazal, which include zinc, chromium, manganese, nickel, magnesium, platinum, aluminum, titanium and many others?

Question #2: Pure Gold Bells

In this week’s parsha, the Torah describes the bells that are attached to the robe (me’il) worn by the kohein gadol. These bells were made so that their sound should be heard when the kohein gadol enters the Sanctuary (Shemos 25:35). A bell made of 100% gold will not ring because the metal is too soft. For a gold bell to ring, it must be an alloy including a small percentage of a different metal. So, how can the Torah say in Parshas Pikudei that the bells were made from “zahav tahor,” pure gold?

Question #3:

At the time of the Korach rebellion, when 250 individuals offered incense, the Torah (Bamidbar 16:17-18) does not describe what metal they used for their censers, their coal pans. However, later (Bamidbar 17:4) the Torah tells us that they were made of nechoshes, which usually means “copper,” although I have seen translations that render it “bronze.” Does it make a halachic difference whether they were made from copper or from bronze?

What is the difference between bronze, brass and copper?

Copper is an element, with an atomic number of 29, meaning that every copper atom has 29 protons. Various other metals, such as tin, zinc or nickel, can be added to copper to create alloys with somewhat different properties than pure copper. In our world, one of the primary uses of copper is for electric wiring, since it is an excellent conductor of heat and electricity, and, for this use, pure copper filament is used. However, when using copper in most other applications, other metals are added to the copper, which gives it qualities useful for the desired application.

Both bronze, an alloy of predominantly copper with some tin, and brass, an alloy of copper and zinc, are treated halachically as copper, since the Mishnah implies that an alloy would be treated as its majority constituent (Keilim 11:4). Those who translate the word nechoshes in the context of the coal pans as “bronze” assume that the copper would have been alloyed to increase its strength and heat resistance and to decrease its malleability. Tin, the usual other major component of bronze, is also an element, with the atomic number of 50. Tin has been known since antiquity, and has been used both in relatively pure form and in alloys of bronze for thousands of years. Brass is a naturally occurring alloy of copper and zinc, and has been used for over two thousand years. Only about three hundred years ago was zinc isolated and recognized as a separate metal with an atomic number of 30. Different types of brass vary in the ratio of copper to zinc, and may have other elements, such as arsenic or antimony, added. It is also possible, but rare, that the brass contains more zinc than copper.

Since bronze is predominantly copper and had already been developed and commonly used by the era of Yetzias Mitzrayim, there seems to be nothing wrong with assuming that nechoshes in connection with the mishkan and other references in the Torah means bronze, rather than pure copper. Nevertheless, since we usually translate nechoshes as copper, that is the way I am going to translate it.

At the time of the giving of the Torah, six metals were in common usage: gold, silver, copper, iron, tin and lead (see Bamidbar 31:22). There, the context is kashering used equipment made from these metals before they may be treated as kosher, and Chazal also derive the requirement to immerse food equipment made from these metals that was previously owned by non-Jews (Avodah Zarah 75b).

As we know from the Mishnah and the Gemara (fourth chapter of Bava Metzia), gold, silver and copper have been used as currencies for millennia. Copper, the least valuable of the three, was used for smaller valued coins (think of pennies) whereas silver was used for higher valued coins (think of dimes, quarters and dollars). (I will allow you to imagine which metal is the major component of a nickel.) In the days before paper money and electronic transfers, large transactions required gold coins. This is very different from the contemporary gold coins, which are used as investment and collectors’ items, not as currency. Today, even the coins that were traditionally minted from silver and copper are predominantly composed of base metals of lesser value, so that the coin does not contain the metallic equivalent of its face value. (During the development of modern Europe, governments regularly debased their currencies of gold, silver and copper as an early means of “minting more currency,” with which to meet their military budgets.)

Metals in the Mishkan

The Mishkan and the Beis Hamikdash predominantly required use of the more valuable metals, gold and silver, but copper did have its place. It was used mainly for the kiyor, the laver or sink used by the kohanim to wash their hands and feet prior to performing the avodah, for the base of the wooden walls of the Mishkan, for the sides and utensils of the mizbeiach, the stand of the kiyor, and as hooks, overlay, and trim on various vessels.

Categories of vessels

Prior to addressing our opening questions, I need to explain some principles of tumah and taharah. Whether utensils are susceptible to tumah depends on the material from which they are made; some materials can become tamei and others cannot. Most items made of wood, cloth, earthenware, metal, leather or bone can contract tumah; items made of unfired earth or stone usually cannot.

Recycling

One of the qualities of metals is that they are fully recyclable. Metal can be melted down to create new items, and there is usually no quality lost by reusing metal rather than using freshly mined material. In this aspect, metal had a unique quality over most materials that were available in the ancient world, such as leather, stone, brick, wood or earthenware, none of which are recyclable in the same way.

There is even a halachic advantage to reprocessing metal. Should a metal utensil become tamei, melting it down or breaking it until it can no longer be used makes the metal tahor, min haTorah, since only utensils are capable of being tamei.

At one point, this led to a concern: There are two ways to remove tumah from a tamei utensil. One is by immersing it in a mikveh or spring, after which we need to wait until nightfall for the utensil to become tahor. (If a utensil became tamei meis by contact with a corpse, a week’s time must transpire within which the utensil must be sprinkled on two different days with spring water containing ashes of the parah adumah, before immersion in a mikveh or spring can render it tahor.)

The second method of making a tamei utensil tahor is by breaking or melting it so that it is no longer serviceable as a utensil, then having a smith repair or manufacture it into a new utensil. Min haTorah, this latter method immediately makes the utensil tahor (i.e., one does not have to wait until nightfall). However, this led to a problem (Shabbos 16b): According to Abayei, the concern was that people may not break the utensil sufficiently. According to Rava, the concern was that people may confuse the laws of tevillah with the laws of breakage and forget that one needs to wait until nightfall after tevillah to use them. Both amora’im agree that there is a concern that people will treat the utensil as tahor when it is still tamei.

To avoid this problem, Chazal established a rule that a metal utensil that was tamei, was broken to make it tahor, and was then manufactured into a new utensil becomes tamei again. This takanah is called tumah yeshanah, which I will translate as tumah revisited.

Glass

The first fully recyclable, non-metallic material discovered by mankind was glass. Broken glass can be melted down, shaped and cooled into new appliances in a process somewhat similar to metals. Since glass and metal share this quality, Chazal included glass in the category of items that can become tamei (Shabbos 16a). We will soon see that later authorities disputed whether other materials that can be recycled this way, such as some plastics, are miderabbanan also treated like metal items, or whether this ruling is unique to glass.

Tevillas Keilim

The Gemara (Avodah Zarah 75b) quotes Rav Ashi that, in addition to the requirement to toveil metal items that are intended for food use and that came from a non-Jew, we are also required to immerse glass dishes, for the same reason mentioned above — glass is recyclable by melting and reconstructing.

New metals

At this point, let us address our opening question: What is the halachic status, germane to the laws of tumah and taharah, of metals that have been discovered and isolated since the times of Chazal, which include zinc, chromium, manganese, nickel, magnesium, platinum, aluminum, titanium and many others?

There are differing approaches among later authorities regarding how halacha views these “new” metals, which results in different opinions regarding the laws of tumah and the laws of immersing utensils:

1. All metals have the same halachic status min haTorah as the six metals mentioned in Chumash (Yevakeish Daas of the Tiferes Yisrael, #44).

2. Any item that is recyclable is mekabeil tumah and requires tevillas keilim miderabbanan (Shu’t Ohel Avraham #24).

3. Only the six types of metal that the Torah mentions become tamei, and not any of the newly discovered ones. This position is suggested by Rav Moshe Feinstein (Shu’t Igros Moshe, Yoreh Deah 2:164) and by Rav Yaakov Kaminetzky (Sefer Tevillas Keilim,page 243). Shu’t Melamed Leho’il specifically concludes that, among recyclable materials, only glass is required to be treated like metal, because this is the only instance in which Chazal created this ruling. In other words, the fact that another material now exists that is also recyclable, like the six metals of the Torah and glassware, does not mean that this material is susceptible to tumah or requires tevillas keilim.

Because of the dispute between the Ohel Avraham,mentioned above, and the Melamed Leho’il, some authorities rule that utensils used for food and made from a recyclable material other than the six stated in the Torah and glass should be immersed, but without a brocha (Shu’t Minchas Yitzchak 3:76, 77, 78; 4:114:4).

Majority of alloy

As we noted above, the Mishnah proves that an alloy’s halacha follows a majority of its composition, so this dispute between the Ohel Avraham and the Melamed Leho’il will not affect the halachic status of bronze, pewter or steel. Steel is predominantly iron, and pewter is predominantly tin; therefore, items manufactured from these alloys are mekabeil tumah and require tevillas keilim min haTorah. It would affect the unusual variety of brass in which the copper component is less in volume than the zinc and other components. (Copper is slightly lighter than zinc, so a brass item made of 50-50 copper and zinc by weight, actually contains more copper than zinc by volume.)

Tumah of metals

According to many authorities, metals have a special status relative to the laws of tumah, which requires an introduction. In general, the highest level of tumah anything can ever become is called av hatumah, which should be translated as main category (or level) of tumah. There is one level of tumah, that of a meis, which makes other items into an av hatumah. For this reason, Rashi (Pesachim 14b and 17a; Bava Kama 2a) refers to a meis as avi avos hatumah, or super-category of tumah.

Swords

The Gemara (Pesachim 14b; Nazir 53b) teaches a principle call cherev harei hu ke’chalal,which means that, although usually only a meis can have the halachic category of being an avi avos hatumah, a vessel that touched a meis may also have this level of tumah. There are three major opinions among rishonim as to which types of utensils can have this law.

1. Those who rule that the principle of cherev harei hu ke’chalal applies only to metal utensils (Rashi, Shabbos 101b; Pesachim 14b and 97a; Rabbeinu Chananel, Pesachim 14b; Tosafos, Nazir 53b and 54b; Rabbeinu Tam, quoted by Tosafos, Bava Kama 2b). We should note that which metals are now included in this ruling will depend on the dispute among acharonim I quoted above as to whether newly discovered metals are mekabel tumah min haTorah, miderabbanan or not at all.

2. Those who rule that the principle of cherev harei hu ke’chalal applies to all utensils that can become tamei and subsequently made tahor through immersion in a mikveh or spring (Rambam, Hilchos Tumas Meis 5:3; Rabbi Yitzchak ben Malki Tzedek, cited in Rash, Ohalos 1:2; Bartenura and Eliyahu Rabbah, Ohalos 1:2).

3. Those who understand the Mishnah and Gemara of cherev harei hu ke’chalal in a different way, concluding that utensils can never become avi avos hatumah (Raavad, Hilchos Tumas Meis 5:3).

Pure gold

So far, we have been discussing, predominantly, copper, other less precious metals, and their alloys. At this point, I want to discuss the second of our opening questions, concerning gold alloys: A bell made of 100% gold will not ring because the metal is too soft. For a gold bell to ring, it must be an alloy including a small percentage of a different metal. So, how can the Torah say that the bells were manufactured from “pure gold.”

The questioner here, a frum and Torah-knowledgeable metallurgist, assumed that a statement that something is made of zahav tahor, “pure gold,” means that there is no alloy of other metals. He understood that the gold used for the bells must have been an alloy containing a small percentage of another metal, which would have the desired properties of both strength and resonance. This would allow the bells to produce a ringing sound when the kohein gadol walked, fulfilling their purpose as bells.

Let me explain his question a bit more:

Most gold vessels and garments of the Mishkan required that they be made of zahav tahor (see Shemos 25:11, 17, 24, 29, 31, 38; 28:14, 22, 36; 30:3). However, the two rings of the choshen are described only as zahav, omitting the word tahor (Shemos 28:23); similarly, the gold thread is not described as tahor (28:15), nor are the two rings manufactured along the sides of the mizbeiach hazahav (30:4), nor the gold overlay of the poles that carry the mizbeiach (30:5). These references might indicate that when the Torah requires “gold,” but does not specify “zahav tahor,” that it is not 100% gold, but a gold alloy that is more suitable for use as a thread, or carrying ring or pole.

Golden bells

When Betzalel and his assistants manufactured the bells attached to the hem of the kohein gadol’s garment, the Torah says that he made them from “pure gold” (Shemos 39:25). However, in parshas Tetzaveh (Shemos 28, 33), where we are commanded about the manufacture of these bells, the Torah states simply that they are made of gold, omitting the word tahor. Thus, we have a conundrum: the Torah does not require that the bells be manufactured of zahav tahor, yet Betzalel made them that way. Regarding all the other items manufactured for the Mishkan, when the mitzvah stated to make them from zahav and not necessarily zahav tahor, no mention is made that Betzalel and his assistants manufactured them from zahav tahor!

The answer is that the term “pure/tahor” gold may mean that it is 100% gold, or it might mean that the gold is tahor, meaning that it is not tamei. Bells made for jewelry or as a tassel hanging from the hem of a garment are not considered utensils, and therefore cannot become tamei. Thus, there would be no need to manufacture them from tahor gold. Only when they are manufactured to ring and, therefore, they contain a clapper, are they susceptible to tumah, in which case it is important to note that they are tahor and not tamei. When we are commanded to make them, the Torah emphasized that these bells can ring – which means that they are potentially susceptible to tumah. It is thus understood that they must have been made tahor. At the time of their manufacture, we need to be reminded that they must be made tahor, since they are susceptible to tumah (Meshech Chachmah, Shemos 39:25). Thus, the reference to their being “pure” does not mean that they were 100% gold. They needed to be an alloy that has some added other metal so that they will ring.

Conclusion

Among the various mitzvos dealt with in this article is the mitzvah requiring that we immerse our food utensils prior to use. This tevillah elevates their sanctity, so that they can now be used for a Jew’s table. Thus, not only food that a Jew eats requires special care, but also the equipment with which he prepares that food.

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Twilight

Question #1: Why then?

“After sunset on a Friday evening, may I ask a non-Jewish person to turn on the lights?”

Question #2: Until when?

“May I toivel dishes, glasses and silverware during the same twilight period?”

Question #3: Challah

“May I separate challah during bein hashemashos?”

Introduction: Twilight laws

As we are all aware, the halachic day begins and ends at nightfall. But at what exact moment does one day march off into history and its successor arrive with its banner unfurled? Is it before sunset, at sunset, when the stars appear, or dependent on some other factor? And, if a day begins when the stars appear, which stars and how many? Does the amount of time after sunset vary according to longitude and/or season of the year? And does it, perhaps, vary according to the amount of humidity in the atmosphere?

There is much discussion in the Gemara and the poskim concerning many of these issues, some of which I have written about previously. This article will discuss the halachic rules that apply during the period of time called bein hashemashos, which is the term used to refer to the twilight interval when we are uncertain whether it is still day or already night. Of particular concern is what is the halacha of this time on Friday evening, when it is unclear whether or not Shabbos has already begun. Does bein hashemashos have the exact same halachic status as the time that is definitely Shabbos, or does its questionable status allow any lenience? The answer is that, under extenuating circumstances, some lenience is allowed. We will see that the definition of “extenuating” for these purposes is rather moderate.

The earliest sources

In several places, the Mishnah, the Gemara and the poskim explain that certain activities that are prohibited on Shabbos are permitted during bein hashemashos of Friday evening. We will begin our research with a Mishnah (Shabbos 34a) that many recite every Friday evening in shul, as the last passage in Bameh Madlikin. There, it teaches: If it is in doubt whether nightfall has already arrived, it is forbidden to separate maaser from produce, when we are certain that it was not yet separated. (Such untithed produce is referred to as tevel.) It is also prohibited to immerse vessels to make them tahor. (Unfortunately, since we are all tamei today, this question is not relevant, but we will soon discuss whether immersing vessels used for food that were previously owned by a non-Jew is permitted during bein hashemashos.) The Mishnah also prohibits kindling lights during bein hashemashos. However, it permits separating maaser from demai produce, about which it is uncertain whether this separation is required. It is permitted during bein hashemashos to make an eiruv chatzeiros, which allows carrying from one’s house to a neighbor’s house on Shabbos. The Mishnah also permits insulating food, hatmanah, using something that does not increase heat (such as clothing), notwithstanding that this is prohibited on Shabbos.

As we will see shortly, there is much discussion among rishonim and early poskim whether we rule according to the conclusions of this Mishnah, or whether we rule more leniently. But first, we need to understand each of the halachic issues that the Mishnah mentions. For example, what is wrong with separating maasros, even on Shabbos itself? Which melacha of Shabbos does this violate?

Maasering

The Mishnah (Beitzah 36b) prohibits separating maasros on Yom Tov, and certainly on Shabbos. The reason for this prohibition is that, since it makes the food edible halachically, it is viewed as a form of forbidden “repair work.”

Demai has an in-between status. What is demai? In the times of Chazal, observant but poorly educated Jews observed the mitzvos, although some of them would occasionally “cut corners,” violating details of halachos that involve major expense. These people, called amei ha’aretz, were lax predominantly regarding three areas of halacha –the laws of shemittah, the laws of tumah and taharah, and the laws of separating maasros. Although most amei ha’aretz indeed separated maasros faithfully, Chazal instituted that produce purchased from an am ha’aratz should have maaser separated from it, albeit without first reciting the brocha for taking maaser. This produce was called demai, and the institution of this takkanah was because it was difficult to ascertain which amei ha’aretz were separating maasros and which were not. Thus, we treat this produce as a type of safek tevel. For this reason, the brocha for separating maasros was omitted prior to separating maaser from demai because, indeed, most amei ha’aretz separated maasros. In addition, because most amei ha’aretz separated maasros, Chazal allowed other leniencies pertaining to its use; for example, they permitted serving demai produce to the poor or to soldiers in the army.

Because there is a great deal of reason to be lenient relative to demai, the Mishnah permitted separating maasros from it during bein hashemashos (Shabbos 34a). The reason this is permitted is because this separation may not actually be “fixing” anything – it is more than likely that the maasros were already separated.

Immersing utensils

During bein hashemashos, the Mishnah permitted immersing vessels and other items that had previously become tamei. This immersion is prohibited on Shabbos or Yom Tov, itself, as mentioned in Mesechta Beitzah (Mishnah 17b and Gemara ad loc.). There, the Gemara (Beitzah 18a) cites a four-way dispute why it is prohibited to immerse vessels to make them tahor on Shabbos or Yom Tov. The four reasons are:

1. Someone immersing vessels on Shabbos may inadvertently carry them through a public area. According to this opinion, immersing vessels on Yom Tov was prohibited as an extension of the prohibition of Shabbos.

2. Clothing and cloth that became tamei, and was then toiveled on Shabbos or Yom Tov, could cause someone to squeeze out the water. According to this opinion, immersing pots, plates, silverware and other items that do not absorb water was prohibited as an extension of the prohibition to immerse cloth and other squeezable items.

3. Knowing that someone has time to toivel vessels on Shabbos or Yom Tov, the owner might delay toiveling them until then. This procrastination might then result in foods or other vessels becoming tamei. Banning the immersions on Shabbos or Yom Tov would cause people to immerse the vessels at an earlier opportunity.

4. Immersing vessels to make them usable is considered “repairing” them on Shabbos or Yom Tov.

The rishonim disagree how we rule in this dispute: in other words, which of the four reasons is accepted (see Rif, Rosh, etc.). There are halachic ramifications of this dispute. Although immersing vessels to make them tahor is not a germane topic today, since we are all tamei anyway, the question is raised whether vessels acquired from a non-Jew, which require immersion in a mikveh prior to use, may be immersed on Shabbos and Yom Tov. When we look at the reasons mentioned by the Gemara why Chazal forbade immersing tamei vessels on Shabbos and Yom Tov, we can conclude that some of the reasons should definitely apply to the immersing of vessels for this latter reason, whereas others might not. The Rosh concludes that it is prohibited on Shabbos and Yom Tov to immerse vessels acquired from a non-Jew. (See, however, Shaagas Aryeh #56.) We will discuss shortly whether one can immerse them during bein hashemashos.

Kindling lights

During bein hashemashos, any Torah prohibition cannot be performed because of safek de’oraysa lechumrah, the rule that cases of doubt regarding Torah prohibitions are treated stringently. The Mishnah’s example of this is kindling lights, which is certainly forbidden during bein hashemashos.

Hatmanah — Insulating food

The Gemara explains that the Mishnah’s last ruling, insulating food, is permitted bein hashemashos because of a specific reason applicable only to its case. Since explaining the details of this rabbinic injunction, called hatmanah, would take us far afield, we will forgo that discussion in this article.


Rebbe and the Rabbanan

Up until this point, I have been explaining the Mishnah in Bameh Madlikin. However, elsewhere, the Gemara (Eruvin 32b) cites a dispute between Rebbe and the Rabbanan, in which Rebbe contends that all rabbinic prohibitions may be performed during the bein hashemashos period, whereas the Rabbanan prohibit this. The obvious reading of the Mishnah in Bameh Madlikin is that it follows the approach of the Rabbanan who prohibit performing most rabbinically prohibited acts during the bein hashemashos period, and, indeed, this is how Rashi explains that Mishnah. However, the Gemara (Eruvin 32b-34b) demonstrates that the Mishnah there in Eruvin follows the opinion of Rebbe. On its own, this is not a halachic concern, since there are instances in which different Mishnayos follow the opinions of different tana’im. The practical question that needs to be decided is whether we indeed rule according to the Rabbanan’s position as stated in the Mishnah in Bameh Madlikin, or whether we follow Rebbe’s more lenient ruling. The conclusion of the Gemara in Eruvin implies that the halacha follows the opinion of Rebbe, and not that of the Rabbanan.

Among the rishonim, we find variant halachic conclusions regarding this question (Rashi, Shabbos 34a s.v. safek; Rambam, Hilchos Shabbos 24:10 and Hilchos Eruvin 6:9; Tur Orach Chayim 342; Beis Yosef Orach Chayim 261 and 342). The Shulchan Aruch (Orach Chayim 342) concludes according to the Rambam’s opinion, ruling that during bein hashemashos Chazal did not forbid anything that is prohibited because of a rabbinic injunction, provided that there is some mitzvah involved or that there were extenuating reasons why it was not performed on erev Shabbos. The Shulchan Aruch mentions, specifically, that it is permitted during bein hashemashos to climb a tree on Rosh Hashanah to get a shofar in order to perform the mitzvah, although it is prohibited to climb a tree on Yom Tov itself even if, as a result, you will be unable to blow shofar. Returning to our first question (“After sunset on a Friday evening, may I ask a non-Jewish person to turn on the lights?”, the Shulchan Aruch also permits asking a non-Jew to kindle a light during bein hashemashos. The Mishnah Berurah 261:17 permits asking him, even if you already accepted Shabbos.

Similarly, the Magen Avraham (261:6) permits separating maasros during bein hashemashos, if you do not have enough food ready for Shabbos. (The Ketzos Hashulchan [75:5, 6 in Badei Hashulchan] explains that the situation is such that he does not have enough fruit or vegetables to have an enjoyable Shabbos meal.) It is very interesting that the Magen Avraham permits this, because the Mishnah at the end of Bameh Madlikin thatwe quoted above expressly prohibits separating maasros during bein hashemashos. Nevertheless, the Magen Avraham permits this separating of maasros, since we rule according to Rebbe, not like the Mishnah.

Toiveling during bein hashemashos

With this background, let us examine the second of our opening questions: is it permitted during the bein hashemashos period to toivel dishes, glasses and silverware purchased from a non-Jew? Assuming we conclude, like the Rosh does, that it is prohibited to toivel these items on Shabbos or Yom Tov, which is the common practice, someone who has no others to use on Shabbos or Yom Tov may toivel them during bein hashemashos (Magen Avraham 261:6).

Separating challah

There is much discussion among halachic authorities whether it is permitted to separate challah during bein hashemashos, if you realize that you forgot to do so before. As we will see shortly, the Magen Avraham (261:2) prohibits separating challah bein hashemashos, whereas other authorities qualify this. To explain their halachic conclusions, we need to provide some background to the laws of separating challah.

Although people are often surprised to discover this, challah is categorized under the mitzvos ha’teluyos ba’aretz, the agricultural mitzvos that apply min haTorah only in Eretz Yisroel. The requirement of separating challah from dough made in chutz la’aretz is a rabbinic requirement. However, when implementing this requirement, Chazal instructed that the mitzvah be performed in a different way from how it is observed in Eretz Yisroel. Dough made in Eretz Yisroel that has not yet had its challah portion separated has the halachic status of tevel and may not be eaten. Dough made in chutz la’aretz does not become tevel. There is a mitzvah to separate challah, but this mitzvah can be fulfilled even after most of the dough has been eaten.

Therefore, should one realize on Shabbos that challah was not separated from dough made in Eretz Yisroel, the bread cannot be eaten because it is tevel. However, if the dough was made in chutz la’aretz, the bread can be eaten on Shabbos, and the challah separated after Shabbos. To do this, you must make sure that you keep some of the bread until after Shabbos, and then separate challah from what was set aside.

Reverse the law

The result of this halacha is that dough produced in chutz la’aretz does not require that its challah is separated in order to permit eating it on Shabbos, whereas dough produced in Eretz Yisroel does. We therefore have an anomalous conclusion regarding whether the challah may be separated during bein hashemashos. Challah may not be separated from dough made in chutz la’aretz, because you can wait to separate the challah until after Shabbos. The later authorities explain that this is the intention of the ruling of the Magen Avraham (261:2). However, when the dough was prepared in Eretz Yisroel and challah was not taken, it will be forbidden to eat the bread on Shabbos. Therefore, when you realize that you forgot to separate challah, and you are relying on that bread for your Shabbos meals, you may separate the challah during bein hashemashos (Machatzis Hashekel 261:2; Pri Megadim, Eishel Avraham 261:2; Mishnah Berurah 261:4).

We can now address the third of our opening questions: “May I separate challah during bein hashemashos?” The answer is that if the dough was mixed in chutz la’aretz, I may not, but I may eat the baked bread during Shabbos, as long as I leave some of it for after Shabbos and then separate challah retroactively. On the other hand, if the dough was made in Eretz Yisroel, I may therefore not eat it without first separating challah, and I may separate the challah during bein hashemashos.

In conclusion

The Gemara teaches that the rabbinic laws are dearer to Hashem than the Torah laws. In this instance, we see that Chazal provided lenience to permit otherwise prohibited activities to be done during the bein hashemashos period.

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos, in order for it to be a day of rest. He points out that the Torah does not prohibit doing avodah, which connotes hard work, but melachah, activities or actions which bring purpose and accomplishment. Shabbos is the day on which we refrain from constructing and altering the world for our own purposes. The goal of Shabbos is to allow Hashem’s rule to be the focus of creation, by refraining from our own creative acts (Shemos 20:11).

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Jewish Judges and Police

Question #1: Beis din

What is the role of beis din in Jewish life?

Question #2: Police protection

In a community that is run completely according to halacha, who is in charge of appointing and overseeing the police force?

Introduction:

Parshas Mishpatim is the primary parsha regarding halachic civil law, and Parshas Shoftim begins with a mitzvah to appoint shoftim, judges, or as we usually call them dayanim (singular dayan), and shoterim (singular shoteir), enforcement officers, bailiffs or police. The Torah states that you must appoint judges and police in all your “gates,” meaning in all your cities.

Rashi quotes the passage of Gemara (Sanhedrin 16b) that there is a requirement min haTorah to appoint judges in every city and for every tribe. We need to clarify a point: If a beis din is appointed for every city, what is added by appointing a beis din for every sheivet?

The rishonim already address this issue. According to Tosafos (Sanhedrin 16b s.v. Shoftim), the Gemara is teaching that if the border separating two shevatim divides a city between them, the two sections should each have its own beis din. The Ramban (beginning of parshas Shoftim) mentions this approach, and then suggests a different way to understand the Gemara: Each sheivet has a beis din with jurisdiction over the entire sheivet, greater responsibility and authority than has a city’s beis din, whose authority is limited to the city’s borders. Thus, although a city’s beis din can force anyone who lives in its city to follow their directives or to appear before them for litigation, they cannot obligate someone who lives outside their city to appear before them or to follow their orders. A sheivet’s beis din has the ability to force any member of that sheivet to appear before them for litigation. It also has the ability to create a gezeirah that is binding on the entire sheivet.

23 Judges!

The Rambam (Hilchos Sanhedrin 1:1, 3) rules that each city and region in Eretz Yisroel has its own beis din of 23 judges, and that smaller towns and villages have a beis din of three dayanim (Hilchos Sanhedrin 1:4). The Lechem Mishneh (1:1) explains that the Rambam uses the word “region” to mean the same thing that we have been calling sheivet, and also explains why the Rambam changes the term.

The Rambam elaborates on all the different batei din that must be created. There was a chamber in the Beis Hamikdash called the lishkas hagazis, which was the meeting place of the main beis din of Klal Yisroel, the Sanhedrin, also called the Beis Din Hagadol, which consisted of 71 judges. There was a second, smaller beis din of 23 dayanim that was located near the entrance to the Beis Hamikdash, and a third beis din, also of 23 dayanim, that was located near the entrance to the Har Habayis.

The authority of the Sanhedrin

The Sanhedrin has much authority and many roles to play. It is the final court of halachic appeals, and the final decider of halacha. Its interpretation of Torah sheba’al peh is authoritative. Any halachic issue that is uncertain or disputed by a lower beis din could eventually be referred to the Beis Din HaGadol for a binding decision.

When the Sanhedrin exists, the Jewish calendar is determined by a small beis din appointed especially for this purpose by the nasi, the head of the Sanhedrin.

All the other batei din mentioned above — the smaller ones on the Har Habayis and at the entrance to the Beis Hamikdash, and the batei din of the shevatim and the cities – are appointed by the Sanhedrin.

The Sanhedrin also fulfills several political and administrative roles. It appoints the king of the Jewish people. Many other halachos require the participation or agreement of the Sanhedrin, including a decision whether to wage war and to expand the halachic boundaries of the Beis Hamikdash or of Yerushalayim (Mishnah Shevuos 14a; Rambam, Hilchos Sanhedrin 5:1). Thus, the Sanhedrin is not only the supreme halachic authority, but it is also quite literally the “power behind the throne,” “the power behind the courts,” and, at the same time, the court of final appeal. It has the final say in all matters, both temporal and spiritual.

Who can be a judge?

There are many technical requirements that all members must meet, among them that they must all be superior talmidei chachomim and yirei shamayim (G-d fearing individuals), wise, perceptive, analytic, humble, truth-loving, personable, of good reputation and possess a basic knowledge of many secular areas, such as medicine and astronomy (Rambam, Hilchos Sanhedrin 2:1, 7). The Rambam (Hilchos Sanhedrin 2:8) describes how the Sanhedrin would send representatives to locate qualified dayanim and appoint them to their local beis din. As places on the higher batei din opened, they would promote local dayanim up the chain to the next tier, and so on. The Rambam also emphasizes the importance of appointing appropriately qualified people to be dayanim, and the catastrophe that results from appointing those who are unqualified or inappropriate (Hilchos Sanhedrin 3:8).

Semicha

All members of the Sanhedrin and, indeed, of all the lower courts must also receive the special semicha that Moshe bestowed upon Yehoshua authorizing him to rule on all areas of Jewish law. This special semicha, which existed from the time of Moshe Rabbeinu until sometime during the era of the Gemara, authorized the recipient to rule on capital and corporal cases (chayavei misas beis din and malkus) and to judge cases involving kenasos, penalties that the Torah invoked. Only a beis din consisting exclusively of dayanim ordained with this semicha may judge these areas of halacha (Rambam, Hilchos Sanhedrin 4:1).

In today’s world, there are several levels of semicha, all of them of a lower level than that granted by Moshe Rabbeinu. The most basic semicha, yoreh yoreh, authorizes the recipient to rule on matters of kashrus and similar areas. A more advanced level of semicha called yodin yodin authorizes its recipient to rule as a dayan on financial matters. A higher level, no longer obtainable today, is called yatir bechoros and authorizes its recipient to rule on whether a first-born animal is blemished and no longer acceptable as a korban, which permits the animal to be shechted for its meat (see Sanhedrin 5a).

The role of a local beis din

The local beis din’s responsibility in a community is also quite multi-faceted. They are not only the judicial branch of the government, charged with ruling on local dinei Torah and interpreting the halachos for local practice, but they are also the executive, or administrative, branch of government, responsible to supervise that the community and its individuals observe halacha fully and correctly. In this capacity, they are responsible to make sure that the weights and measures in the marketplace are honest (Rambam, Hilchos Sanhedrin 1:1) and that the prices charged by stores do not exceed what halacha permits. The local beis din is responsible to make sure that no one overcharges for staple products (ibid.; Shulchan Aruch, Choshen Mishpat 231:20).

Overseeing that the community observes halacha correctly is also a responsibility of the beis din. For example, the Rambam and Shulchan Aruch rule that beis din supervises that yomim tovim do not become the cause for inappropriate social activities. This includes assigning police to patrol parks and other relaxing areas to maintain proper standards of public conduct (Rambam, Hilchos Yom Tov 6:21, Shulchan Aruch Orach Chayim 529:4). Beis din is responsible to make sure that duchening was performed only by kosher kohanim (Kesubos 25a). It is their job to make sure that no one works on chol hamoed in violation of the halacha (Rambam, Hilchos Yom Tov 7:4), that people keep their pledges to tzedakah (Rosh Hashanah 6a), that graves and other tamei meis areas are properly marked, and that people do not plantor maintain kelayim (Rambam, Hilchos Yom Tov 7:11).

The beis din assumes responsibility to protect individuals who cannot oversee their businesses or properties, such as, someone who fled to avoid danger, was kidnapped or captured. Beis din will appoint someone to manage the individual’s properties and businesses (Shulchan Aruch Choshen Mishpat 285:2). They are also responsible to see that the properties of orphaned minors are properly managed (for example, see Shulchan Aruch Even Ha’ezer, 112:11).

Included in this responsibility is that, if a father cannot or does not give his son a bris milah, the beis din makes sure that the mitzvah is performed (Kiddushin 29a; Shulchan Aruch Yoreh Deah 261:1).

Smaller batei din

In addition to the officially appointed batei din, in earlier generations there were local batei din, appointed by a community to oversee its own matters. For example, the kohanim had their own batei din, who were authorized to make rules and new takanos that applied only to the kohanim (see Pesachim 90b; Kesubos 12a).

Chutz la’aretz

The Ramban (beginning of Parshas Shoftim) notes that the posuk implies that there is no requirement min haTorah to establish a beis din outside of Eretz Yisroel. This is because the Torah requires appointing judges and bailiffs in your gates, which means the gates of Jewish cities in Eretz Yisroel. However, the Ramban notes that the Gemara (Makkos 7a) rules that once Klal Yisroel arrives in and settles Eretz Yisroel, there is an obligation min haTorah to have a beis din in chutz la’aretz also, although not in every city, but only in “districts.”

Min haTorah or not?

The Ramban concludes that establishing batei din outside Eretz Yisroel isrequired min haTorah only when there are dayanim who have achieved the highest level of semicha, that which is a continuation of what Moshe Rabbeinu conferred on Yehoshua. As I mentioned above, this semicha was discontinued during the era of the Gemara. There have been several attempts to reestablish this semicha, the most famous of which was when the Mahari Beirav was the rav of Tzfas, and Rav Yosef Karo was a member of his beis din. However, none of these attempts succeeded. The Ramban concludes that, although we no longer have a Torah obligation to establish batei din in chutz la’aretz, there is a rabbinic requirement to do so.

How do we litigate?

Over the years, I have been asked many questions about the way batei din operate. Most of these questions stem from a misunderstanding of legal procedures in general, or from a lack of knowledge about how a beis din functions.

Here is a typical example, lifted from my records. The din Torah was the result of a business partnership that had soured. I received the following e-mail communication: “I have asked Mr. F. to tell me what he is claiming. He has not responded, but has clammed up about his claim. He knows what I am claiming and he said that I have to sign an arbitration agreement in beis din and only then will he present what he is claiming from me. I am asking if this is just — he knows what I am claiming but what he is claiming will be a surprise.”

I answered: “Mr. F. is under no obligation to reveal to you what he feels you owe him, without an agreement that the two of you will go to binding arbitration in beis din. Telling him the basis of your claims does not require him to reveal any information. If you feel that you can disprove his claims, you should tell that to the beis din, and you have a right to postpone the proceedings to allow you the time to present your proofs.

In the interim, you can agree to go to beis din, or you can suggest that the two of you discuss the matter in the presence of a disinterested party in the hope of negotiating some type of settlement. However, he is under no obligation to agree to this. If you receive a summons to beis din, you are required to respond.”

By the way, when choosing to go to a beis din, the almost-universal tendency is to find a beis din where I will “win” my case. However, the mitzvah specifies that you should go to the beis din that is most expert (Sanhedrin 32a). The Gemara implies that this is a mitzvah min haTorah, derived from the words in Parshas Shoftim, tzedek tzedek tirdof, which the Gemara explains to mean haleich achar beis din yafeh, “find the most expert beis din” to litigate your case, so that it is resolved correctly.

Turf wars

What do you do if the other party insists that you go to their choice of beis din?

I mentioned earlier that the Ramban explains that the dayanim of a sheivet have greater jurisdiction than do those of a city, who cannot force someone from outside their city to come before them for litigation. A sheivet’s beis din has the ability to force anyone in their sheivet to come to them for litigation. The same authority applies to a city’s beis din relative to a city’s inhabitants. Therefore, if our beis din system were able to work the way the Torah designed it, the official dayanim of a city would be able to require litigants to appear before them.

Because the countries in which we live will not compel halachic observance, we cannot legally coerce someone to appear before an official city beis din. But an observant Jew knows that he must appear before beis din when summoned.

The person being sued (the defendant) is usually assumed to have the right to choose which beis din will hear the case, as long as it is in his city of residence. However, this is not ironclad. If the defendant chooses a beis din that will be more expensive for the claimant, or he is trying simply to inconvenience the claimant, there is no right to choose this option over a more-convenient, less-expensive choice. If the defendant visits or does business in the city where the claimant lives, and the claimant rarely travels to the defendant’s city, the beis din in the claimant’s city can demand to judge the case (Shu”t Maharshdam #103; Shu”t Igros Moshe, Choshen Mishpat 1:5; Shu”t Yabia Omer 7:Choshen Mishpat:4). Under these circumstances, a proper beis din will ignore the defendant’s request for choice of venue, and should he not respond to his summons, rule him a lo tzayis dina, someone who does not obey the laws of the Torah, which has many ramifications (Aruch Hashulchan, Choshen Mishpat 26:2, 5; Shu”t Imrei Yosher #38).

Conclusion

A Torah Jew must realize that Hashem’s Torah is all-encompassing, and that every aspect of his life is governed by Torah law. A Jew hopes to manage his business relationships without ever resorting to litigation. If there is an unfortunate “misunderstanding,” the two parties should discuss the matter and, if the matter remains unresolved, they should try discussing it with the guidance of a third party, possibly a rav. However, should all these approaches not succeed, the avenue of halachic litigation exists.

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Carrying on Shabbos

Question #1: A Private Area Owned Publicly?

Can a “private area” be under public ownership?

Question #2: Owning a Public Area

Is it possible to own a public area?

Foreword

The 39th of the melachos of Shabbos is usually called “carrying,” although the Hebrew term hamotzi (Shabbos 73a) translates as “removing,” moving something from an enclosed to a public area. In parshas Beshalach, the Torah states: Hashem gave you the Shabbos. For this reason, He provides you with two days’ supply of bread on the sixth day. Each person should remain where he is and not leave his place on the seventh day” (Shemos 16:29).

The sentence each person should remain where he is and not leave his place means not to leave home while carrying the tools needed to gather the mann (Tosafos, Eiruvin 17b). Thus, the Torah prohibits carrying from one’s house, or any other enclosed area (halachically called a reshus hayachid), to a reshus harabim, an area established for public use. Chazal further explain that moving an item from a reshus hayachid to a reshus harabim violates Torah law even if someone did not carry it but remained in the reshus hayachid and threw it or handed it to someone else, as long as the item was transferred from a reshus hayachid to a reshus harabim (Shabbos 2a, 96a-b).

Reshus harabim to reshus hayachid

We derive from other sources that it is prohibited min haTorah to transport an item in the other direction — from a reshus harabim to a reshus hayachid — and also to carry or transport it four amos (about seven feet) or more within a reshus harabim (Shabbos 96b; Tosafos, Shabbos 2a s.v. Pashat). Since the melacha includes more than “carrying” or “removing,” a more accurate English term for this melacha is probably “transporting” or “conveying.”

The purpose of this article is to provide introductory information identifying what qualifies as a reshus hayachid and a reshus harabim min haTorah, and the names and definitions of two other jurisdictions. There are far too many details in this melacha to cover in one article, and, therefore, providing practical halacha le’maaseh will need to wait for further articles on the subject.

Introduction

Germane to the min haTorah laws of carrying on Shabbos, every place in the universe falls under one of three Torah categories: reshus hayachid, an enclosed area; reshus harabim, an area meant for public thoroughfare or for public use; and makom petur, an area that does not meet the definitions of either a reshus hayachid or a reshus harabim. There is also a fourth area created by rabbinic injunction, called a carmelis, which we will discuss.

Reshus hayachid – these words literally mean a private domain. The term means an enclosed area and has nothing to do with who owns it. Min haTorah, a reshus hayachid does not need to be fully enclosed; it is sufficient if it is enclosed most of its way around by walls, or their equivalent, that are at least ten tefachim tall (approximately three feet). (There are disputes about details that we will leave for the time being.)

A reshus hayachid must be at least four tefachim (approximately fourteen inches) long by four tefachim wide. If the area is narrower than four tefachim, it is not a reshus hayachid, but a makom petur, which we will define shortly.

From the depths

The walls of a reshus hayachid need not necessarily go up – they can go down from ground level. In other words, a pit, a manhole, a sewer or a mine that is at least ten tefachim deep and four tefachim long and wide also qualifies as a reshus hayachid. Carrying from this “hole in the ground” into a reshus harabim, or from a reshus harabim into it, are violations of Torah law.

Sloping reshus hayachid

Some or all of the “walls” of a reshus hayachid can be created by the slope of a mound whose top is at least ten tefachim higher than the area around it, and the mound rises to this height within a walking distance of four amos or less, thus creating a significant angle of slope (Shabbos 100a; see Mishnah Berurah 345:5).

Above

Once an area is categorized as a reshus hayachid, the space above it also qualifies as a reshus hayachid, regardless of the height. This is referred to by Chazal as reshus hayachid olah ad larakia (Shabbos 7a, b; Eiruvin 32b, 34b), literally, “a private domain rises to the sky.” Thus, since throwing something from a reshus harabim to a reshus hayachid is a melacha de’oraysa, tossing an item on Shabbos from a reshus harabim that lands on top of a pole in a reshus hayachid violates a Torah prohibition of carrying. This is true even if the item lands at a point hundreds of feet above the ground.

The walls enclosing a reshus hayachid are part of the reshus hayachid. Therefore, atop the walls is also part of the reshus hayachid, as well as any drawers, shelves, cracks or crevices along its inside walls, regardless as to their dimensions or height (Shulchan Aruch, Orach Chayim 345:4). The Shulchan Aruch concludes that the entire crevice, even when it penetrates the entire wall to a reshus harabim area on the opposite side, is part of the reshus hayachid. However, in one instance some later authorities disagree with the conclusion of the Shulchan Aruch. When the crevice is in the lowest ten tefachim of the reshus hayachid and it passes through the wall to the reshus harabim on the other side, the Elya Rabbah and the Gra conclude that the crevice has the halachic status of a reshus harabim, not a reshus hayachid.

Movable reshus hayachid

A reshus hayachid can be portable and can even be a storage item or vessel sitting in a reshus harabim. Thus, the standard American mailbox sitting on the street corner, which is larger than four tefachim by four tefachim and more than ten tefachim tall, is a reshus hayachid, notwithstanding its location in a public area. Garbage cans whose sides are at least ten tefachim tall and contain an area at least four tefachim by four tefachim qualify as a reshus hayachid, both inside and above it. If the garbage can is round, it must be large enough to contain a square area four tefachim on each side (Shulchan Aruch, Orach Chayim 345:6).

Thus, moving something lying on the street onto or into a mailbox, garbage can or dumpster may violate carrying on Shabbos min haTorah.

Similarly, the hood, trunk or roof of an automobile are reshuyos hayachid, since they are ten or more tefachim tall and at least four tefachim wide and long. Therefore, carrying an item from a reshus harabim and placing it atop a car or truck, or removing something from atop a car or truck and placing it in reshus harabim are violations of carrying min haTorah.

A publicly owned, private area?

At this point, we can address our opening question: Can a “private area” be under public ownership?

The answer is that it can. Germane to the rules of Shabbos, a “private area,” reshus hayachid, refers to it being enclosed, not to who owns it.

Reshus harabim

Reshus harabim, which literally means “a public domain,” refers to an area intended for public use. There are several requirements for an area to qualify as a reshus harabim, the most basic being that it must be at least sixteen amos (about twenty-eight feet) wide (Shabbos 99a), that it must be unroofed (Shabbos 5a) and that it is meant to be a public thoroughfare or for other public use, such as a marketplace (Shabbos 6a). It is not required that it be sixteen amos wide for its entire length — if there are places in which it narrows to a width of only 13 1/3 amos, it still qualifies as a reshus harabim (Shulchan Aruch, Orach Chayim 345:9).

A side street or alleyway that is less than 16 amos wide qualifies as a reshus harabim if it connects two reshus harabim areas (Shulchan Aruch, Orach Chayim 345:8). Similarly, an intra-city road leading from one city to another is a reshus harabim, even if it is less than 16 amos wide, when the cities it connects qualify as a reshuyos harabim.

Some authorities contend that a reshus harabim cannot be inside an enclosed area. However, the Be’er Heiteiv (345:7), quotingthe Rashba, andthe Baal Hama’or (Eiruvin 22a),quoting Rabbeinu Efrayim, disagree with this last opinion, contending that an area sixteen amos wide meant for public thoroughfare is a reshus harabim, even if it is enclosed by walls.

Below three tefachim

As opposed to a reshus hayachid, which includes all the area above it, a reshus harabim includes only the area near the ground. In other words, if the ground is not perfectly smooth, the three lowest tefachim of the small hills and indentations, both below and above street height, are part of the reshus harabim. An area that rises more than three tefachim above or is more than three tefachim below street height is no longer part of the reshus harabim. At times, as we will soon see, the area more than three tefachim above the reshus harabim is a makom petur.

600,000

The rishonim dispute whether an area that meets all the other requirements of a reshus harabim, but does not service 600,000 people on a regular basis, qualifies as a reshus harabim (Rashi, Eiruvin 6a and 59a; Tosafos, Eiruvin 6a s.v. Keitzad). For a reason I will explain shortly, those who require 600,000 people for the area to be a reshus harabim permit an eiruv in an area that does not have this many people even when it meets the other requirements of a reshus harabim. The established practice among Ashkenazim is to rely on this approach (Taz and Magen Avraham, Orach Chayim 345), although not all authorities accept it (Shu”t Mishkenos Yaakov #120 s.v. Hinei harishon and Biur Halacha 345:7 s.v. She’ein).

Whether Sefardim rely on this approach is disputed by later authorities (commentaries on Shulchan Aruch, Orach Chayim 345:7 and 303:18). The exact definition of what is meant that “600,000 use the area” is the subject of much literature and dispute. (Among numerous other authorities, see commentaries on the Gemara and Shulchan Aruch, Orach Chayim passages above; Shu”t Beis Efrayim, Orach Chayim #25, 26; Shu”t Igros Moshe, Orach Chayim 1:139:5; Shu”t Mishnas Aharon, Orach Chayim #6.)

Within a reshus harabim

Carrying more than four amos in a reshus harabim is forbidden and usually violates a melacha min haTorah. Carrying an item from a reshus hayachid to a reshus harabim or from a reshus harabim to a reshus hayachid also usually violates a melacha min haTorah.

Usually an area enclosed by walls does not qualify as a reshus harabim (Eiruvin 22a). What is the halacha if an area is enclosed for most of its length, but there are large gaps in the enclosure? For example, walls or buildings enclose most of an area – however, in the middle of the area there are streets that cross through city blocks. Is this area that is mostly surrounded by buildings and other structures considered a reshus harabim because of its use, or has it lost this status because it is “enclosed”?

The Beis Efrayim and the Chazon Ish (Orach Chayim 107:5) contend that this is considered an enclosed area min haTorah, notwithstanding the large breaches in its enclosure, whereas the Mishkenos Yaakov and Rav Aharon Kotler consider it to be a reshus harabim min haTorah. The lengthy correspondence on this question between the Beis Efrayim and the Mishkenos Yaakov also covers a host of other related issues (Shu”t Beis Efrayim, Orach Chayim # 25, 26; Shu”t Mishkenos Yaakov, Orach Chayim, #120-122).

Owning a Public Area

At this point, we can address the second of our opening questions: Is it possible to own a public area? If the question is whether privately owned property can qualify as reshus harabim (i.e., it has the physical properties that define a reshus harabim for hilchos Shabbos), the answer is “yes.”

Makom petur

This is an area into, within and from which there is no prohibition of carrying on Shabbos at all. In other words, it is 100% permitted to transport an item from a reshus harabim to or from a makom petur on Shabbos, or to or from a reshus hayachid from a makom petur. But before getting excited that we can now circumvent the violation of carrying on Shabbos, we must note that it is forbidden to use a makom petur as a transit point to move something from a reshus hayachid to a reshus harabim, or vice versa. In other words, if an item started Shabbos in a reshus hayachid and was moved to a makom petur, it cannot then be moved to a reshus harabim. Similarly, an item that started Shabbos in a reshus harabim and moved to a makom petur cannot be moved afterward to a reshus hayachid.

A makom petur is an area less than four tefachim wide that is at least three tefachim high or is enclosed within “walls” that are this high. A telephone pole or a street sign qualify as a makom petur since they are more than three tefachim tall and less than four tefachim wide, as does a British or Israeli mailbox, which are significantly smaller than American mailboxes.

An area enclosed between parallel walls that are within four tefachim of one another is a makom petur, regardless of the length of the area. Similarly, a ditch or furrow narrower than four tefachim whose sides are three tefachim deep is a makom petur, even though it may be many miles long (Shulchan Aruch, Orach Chayim 345:19).

I noted above that it is permitted to transport an item on Shabbos from either a reshus harabim or a reshus hayachid to or from a makom petur. However, before attempting to do this, be aware that within a reshus hayachid, there is never a halacha of makom petur. Once an area qualifies as a reshus hayachid, everything inside and above it is also a reshus hayachid. More importantly, the rishonim dispute whether a makom petur exists within the area called a carmelis (which I will explain in the next paragraph). Those who hold that an area that would otherwise be a makom petur, but is inside a carmelis, has the status of a carmelis, will not permit moving an item from a reshus harabim or a reshus hayachid to or from it (Rema, Orach Chayim 345:19). Both the Rema and most acharonim rule according to the more stringent opinion, which severely limits the heter of a makom petur (Mishnah Berurah 345:87; however, see Biur Halacha 345:19 s.v. Veyeish).

Carmelis

Now that we have clarified the three areas that exist under Torah law, I need to explain a fourth area called a carmelis. A carmelis is a domain created by Chazal that has the stringencies of both a reshus hayachid and a reshus harabim. Thus, it is prohibited to carry to or from a carmelis to a reshus harabim (because a carmelis has the stringency of a reshus hayachid), to or from a carmelis to a reshus hayachid, or for a distance of four amos or more within a carmelis (because it has the stringency of a reshus harabim).

What areas qualify as a carmelis? Any surface area that does not meet the Torah’s definition of a reshus harabim, and yet is not enclosed, qualifies as a carmelis. This includes fields, forests and other uninhabited areas, bodies of water, beaches, hills, etc. (Shulchan Aruch, Orach Chayim 345:14). Another example: I mentioned above that any covered area is not a reshus harabim. Thus, the lower level of a bridge, such as the George Washington Bridge, and all tunnels are not reshuyos harabim, notwithstanding that they may be sixteen amos wide, made for public thoroughfare and have 600,000 people travel on them daily (see Shulchan Aruch, Orach Chayim 345:7 and 14). Each of these areas qualifies as a carmelis, and carrying to, from and in them is prohibited, but only because of a rabbinic injunction. Most of these areas are a makom petur min haTorah, although some are a reshus hayachid min haTorah.

There are numerous practical halachic differences that result from the fact that the prohibition to carry in these areas is only miderabbanan. Because of space considerations, we will leave most of this discussion for future articles.

Eiruvability

Perhaps the most significant difference between a reshus harabim and a carmelis is that, in accepted practice, an eiruv permits carrying only in an area in which there is no violation to carry min haTorah (Eiruvin 6a-b). For this reason, before attempting to build an eiruv, a decision must be reached whether the area is halachically a carmelis, in which case it is possible to construct an eiruv, or a reshus harabim min haTorah, in which case it cannot.

Conclusion

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos so that it should be a day of rest. He points out that the Torah did not prohibit doing avodah, which connotes hard work, but melacha, which implies purpose and accomplishment. Thus, even transporting items accomplishes something, notwithstanding that the object moved is not physically changed in the process. The goal of Shabbos is to allow Hashem’s rule to be the focus of creation by withdrawing from our own creative acts (Shemos 20:11). By refraining from melacha for one day a week, we demonstrate Who created the world and authorized us to control it.

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Chumash and the Fall of the Ghetto

The yahrzeit of Rav Shamshon Raphael Hirsch,  a man to whom each of us owes a personal debt of gratitude, is on the 27th of Teiveis.

From the time of the French Revolution and continuing into the nineteenth century, the ghetto walls that had kept the Jews isolated from the world around them gradually fell all over central Europe. A result of this was that, no longer required to be part of their insular and observant Jewish communities, many Jews began to assimilate into the world environment now open to them and to throw away their Judaism.

In Eastern Europe, although the Jews were still kept isolated from full advancement into secular society, different forces, most notably the haskalah, accomplished similar purposes of distancing many Jews from the observance of the Torah. Among the challenges posed by some of the more intellectual who had abandoned Judaism, was their misunderstanding that the Torah as presented by Chazal bore differences from that of the written Torah.

At this time, several new and highly original commentaries on Chumash appear. Among these are Hakesav Vehakabalah, by Rav Yaakov Tzvi Mecklenburg, the commentaries[i] of the Malbim to Tanach, the commentary of Rav Samson Raphael Hirsch, and the Ha’ameik Davar, the commentary of Rav Naftali Tzvi Yehudah Berlin, known by his acronym as the Netziv. All four of these commentaries show the impact of the tumultuous times in which they were written, although there are major differences between their treatments of Chumash.

Hakesav Vehakabalah

Rav Yaakov Tzvi Mecklenburg, born in 1785, a disciple of Rabbi Akiva Eiger, became the rav of the city of Koenigsberg, then in Prussia, in 1831 and remained in that position until his passing 34 years later. Koenigsberg was within Germany but far to the east, and therefore Rav Mecklenburg saw both the problems of assimilation and reform that were happening in Germany and those of the haskalah and other non-religious movements of Eastern Europe. Hakesav Vehakabalah was intended as a response to attacks on Chazal’s understanding of Torah. In his introduction, he discusses the issues concerning the writing down of Torah shebe’al peh, quoting both the midrashim and the explanations of the commentaries on this question.

The explanations of Hakesav Vehakabalah are based on careful analysis of the root meanings and grammar of the words of the Chumash, using them to provide a clear interpretation of the pesukim, at times providing a Yiddish translation for a term. Although frequently he is highly original in his approach, he also often mentions the different approaches of the earlier commentaries and chooses the one that he demonstrates is the most accurate.

The first edition of Hakesav Vehakabalah was published in 1839. In his lifetime, three more editions were published, each including additional commentary or translation. He continued to add more to the work, and a further edition, including the author’s additional notations, was published posthumously in 1880.

The Malbim

Rav Meir Leibush ben Yechiel Michel, who became known by his acronym, Malbim, served as the rav of many different communities in Eastern Europe. A brilliant talmid chacham, a warrior against the haskalah, and a prolific author, he is remembered to posterity primarily because of his commentaries on Tanach and the essays that accompany those commentaries.[ii] His commentary on Yeshayah, which is the first volume that he produced, includes an introduction in which he elucidates the principles that form the basis for his commentary on most of Tanach. These include that there are never two terms in Tanach Hebrew that mean the exact same thing, and that there are no repeated phrases or clauses. Each word in Tanach was chosen meticulously to provide a very specific nuance of meaning and that one must delve into the depth of this meaning. His works on Vayikra and Devorim are original commentaries to the midrash halacha on these seforim,in which he demonstrates how Chazal proved the correct halachic interpretation of each verse.

Rav Samson Raphael Hirsch

Rav Samson Raphael Hirsch, born in 1808 in Hamburg, Germany, held rabbinic positions in Oldenberg and Emden, Germany, prior to becoming the Chief Rabbi of Moravia. Thereafter, he returned to Germany and established a Torah-committed community in Frankfurt. Towards the end of his life, after he had built a strong Torah community, he produced his commentaries to the Chumash, Tehillim and the Siddur. As he writes in his introduction, his commentary on Chumash was based on lectures that he had given on the subject, and he used the notes of attendees to those shiurim as the basis for his written commentary.

The Netziv

Rav Naftali Tzvi Yehudah Berlin was born in the village of Mir, then in czarist Russia, in 1817. At the age of 16 he married the daughter of Rav Yitzchak of Volozhin, the son and successor of the founder and Rosh Yeshivah of the famed yeshivah in that city, Rav Chayim of Volozhin, the esteemed disciple of the Vilna Gaon. From that time until his very last months, the Netziv was associated with the yeshivah of Volozhin, where he eventually became Rosh Yeshivah, a position he held for almost forty years until the yeshivah was closed in 1892, because of the insistence of the czarist government that it secularize its curriculum. The Netziv authored many works, including a commentary on the She’iltos of Rav Achai Gaon, commentaries to all the halachic midrashim, a commentary on Shir Hashirim, responsa, and his commentary to the Chumash, called Ha’ameik Davar.

Of the four authors we are discussing, the Netziv is unique in that his primary role was that of a rosh yeshivah, whereas the other three were communal rabbonim. All four of these gedolim were renowned poskim. But the Netziv was unusual as a rosh yeshivah in that he not only taught a daily Gemara shiur in which he went through the entire Shas (not only the so-called “yeshivish mesechtos”), but he also taught a daily class in the week’s parshah. His discussion and his commentary were based on his personal analysis of the pesukim or from ideas that he heard orally from talmidei chachamim such as his father-in-law, Rav Yitzchak of Volozhin.

The differences among these commentaries

Notwithstanding the similarities of purpose among these commentaries, each reflects its author’s unique contributions to Torah; thus, there are major differences among them. For example, the Malbim’s commentaries to the book of Vayikra and to most of Devorim are not devoted to explaining the pesukim, but to demonstrating how the halachic droshah of the Torah shebe’al peh is based on a particular way of understanding the Torah shebiksav. He developed an extensive system that provides the underpinning of all of the halachic derivations. In his introduction to Vayikra, he writes that he had initially intended to write his commentary explaining this derivative approach to every droshah of Chazal. However, he discovered very early in the writing of his commentary that the length of such a work would become unrealistic. Instead, he wrote a separate essay that explains the principles with which Chazal operated, and in his commentary he referred to the appropriate part of this essay when necessary.

Rav Hirsch also maintained that proper study of Torah shebiksav will leave you with the conclusions of Torah shebe’al peh. He noted that the Torah shebe’al peh was actually taught to the Jews first.[iii] Moshe received all the laws of Torah shebe’al peh at Har Sinai and taught them to the Jewish people gradually. The completed Torah shebiksav was not received by the Jews until the very end of Moshe’s life, immediately prior to the Jews entering Eretz Yisroel, or forty years after they had received the Torah shebe’al peh. This explains numerous passages in the Torah, including the commandment to slaughter animals ka’asher tzivisicha “as you were instructed,” meaning the sets of regulations that had been transmitted to Moshe at Har Sinai and previously taught to the Bnei Yisroel.

Comparing Torah shebiksav to Torah shebe’al peh

Both Hakesav Vehakabalah and Malbim mention that a major purpose of their commentaries is to demonstrate that Torah shebiksav and Torah shebe’al peh are one. In the introduction to the first volume of commentary he wrote on Chumash, Vayikra, the Malbim mentions specifically the tragedy of the reform convention that took place in 1844 in Braunschweig (called Brunswick in English), a city in Germany about 40 miles southeast of Hanover. The Malbim writes that when he heard of what had happened at the reform convention, he decided that klal Yisroel required a new commentary on Tanach written according to the mesorah. He notes that among the points he will be demonstrating is that Torah shebiksav and Torah shebe’al peh are one.

Although Rav Hirsch’s very brief introduction to his commentary does not emphasize this relationship between Torah shebiksav and Torah shebe’al peh, this foundation shows up literally hundreds of times in his commentary.[iv]

Uniqueness of Ha’ameik Davar

Of the four authors we are discussing, the Netziv’s commentary is actually quite original in a surprising way, which requires that we explain a bit of history concerning traditional Torah commentaries. Among the early classic commentaries on Chumash, the Ramban, Rashi and many others assume that any explanation of the written Torah must fit the conclusions of our Chazal and the Oral Torah. This approach accords well with the approaches of Hakesav Vehakabalah, Rav Hirsch and the Malbim.

However, among the rishonim this approach was not universally held. The Ibn Ezra, for example, often explains pesukim unlike the halachic conclusion. He certainly felt that the concept ein mikra yotzei midei peshuto,[v] no verse is interpreted without its most literal explanation,means that the Torah can be understood on many levels, and that the most basic understanding, pshat, does not necessarily require that it be consistent with the other levels. Many later authorities and commentaries criticize the Ibn Ezra for his approach.[vi] Yet, the Netziv also utilizes the same method, at times explaining a pasuk in a way that does not appear consistent with the halachic conclusions that we find in Chazal.[vii] Such an approach was anathema to Hakesav Vehakabalah, Rav Hirsch and the Malbim.

Uniqueness of Rav Hirsch’s commentary

The most obvious difference between Rav Hirsch’s commentary and those of the others is, of course, the language. Whereas the other commentaries are written in traditional rabbinic Hebrew, Rav Hirsch published his commentary on Chumash, and, indeed, all of his other works, in German. Using the vernacular to present the Torah was not an original approach of Rav Hirsch. Rav Sa’adiya Geon’s commentaries to Chumash, as well as all his other writings, were written in Arabic, as were the Chovos Halevovos, the Kuzari, and many other writings of the early Sefardic rishonim. Similarly, the Rambam wrote all of his works, with the exception of the Mishneh Torah, in Arabic. However, using the vernacular as a vehicle for presenting Torah had fallen by the wayside in the hundreds of years since the era of the rishonim With very few exceptions, Torah works were all published in Hebrew. As a young rabbi in Oldenberg, Rav Hirsch recognized the need to present the Torah in German. He certainly understood that he had a personal mission of providing Torah education to his generation, and to demonstrate that a proper understanding of Torah demonstrates its primacy over all of man’s endeavors.

In Rav Hirsch’s commentary there are instances when he wrote a comment in Hebrew. Invariably, these are the comments of a Torah scholar on a Talmudic discussion point that was not appropriate to the general audience for whom his work was intended. Yet, he was concerned that posterity should not lose the important halachic point he had realized. To accommodate this, he chose to write these points in scholarly, rabbinic Hebrew.

Aside from his use of German, there are many other ways in which Rav Hirsch’s approach is different from the other commentaries that we are discussing. Rav Hirsch’s commentary is not simply an interpretation of Chumash. He uses his commentary to demonstrate how the Torah should be used as the primary educational tool for man to grow as a human being. There is virtually not a comment of his on the Torah that is not explained as a moral lesson, what we call in our day a musar haskeil. It appears that Rav Hirsch deliberately restricted his commentary to topics that provide us with a musar haskeil. There are many occasions where he did not comment upon questions about pshat in a verse where it would appear appropriate for him to have done so. Apparently, he refrained from providing commentary where the conclusion would not provide any lesson one can utilize for personal growth.

Thus, Rav Hirsch viewed his commentary as a means of showing how to use Chumash as a lesson guide in what we usually call musar and hashkafah. In this, his commentary is very different from the other three works we are discussing, all of which are devoted to providing a commentary on Chumash and not focused specifically on being works of ethical and moral development.

From a mussar perspective, Rav Hirsch’s Torah commentary can provide a complete life-instruction manual on its own. We understand well why Rav Shraga Feivel Mendelowitz told his students at Yeshiva Torah Vadaas that it would be worth their investment of time to learn to read German just for the sake of being able to read the writings of Rav Hirsch. (At the time that Rav Shraga Feivel advised his students to do this, no translation existed of Rav Hirsch’s Chumash commentary in any language, nor were most of his other writings available in Hebrew or English.)

Rav Hirsch called his Torah hashkafah by the term Torah im Derech Eretz, the details of which he developed at different places in his commentary.[viii]Although the expression is often misunderstood and misinterpreted, Rav Hirsch used this term to mean that Torah and its observance is always the primary focus of a Jew’s life, and that this can and must be done in all places, times and situations. Everything else that this world has to offer, including livelihood, education, culture, and social mores, must be subsumed within a Torah framework.

Reasons for mitzvos

One of Rav Hirsch’s most innovative approaches is his explanations of the ta’amei hamitzvah. Of course, we all realize that a human being could never claim to understand why Hashem commanded that we perform a certain activity or prohibit a different one. Nevertheless, while performing the mitzvah, there are lessons that we can derive that may help us appreciate to a greater extent our role in fulfilling Hashem’s mission for us on earth. The Sefer Hachinuch explains that the term ta’amei hamitzvah should be translated not as reason for a mitzvah, but as taste of a mitzvah. While observing or studying the laws of the mitzvos, an educational reason that we can utilize should assist the experience of the mitzvah.

The concept of deriving educational reasons for mitzvos certainly did not originate with by Rav Hirsch. In one place in his commentary,[ix] Rav Hirsch quotes dozens of sources where Chazal discuss what lesson one can derive from the observance of the mitzvos, and we have several rishonim, most notably the Rambam in his Moreh Nevuchim and the Sefer Hachinuch, who devote much time to this study. However, Rav Hirsch added several dimensions to the concept of ta’amei hamitzvah. One dimension is that Rav Hirsch’s explanation of a mitzvah must always fit every detail of the halachos, the laws of the mitzvah. In this detail, his approaches vary from those suggested by the Rambam and the Sefer Hachinuch, whose reasons often do not fit all the details of the mitzvah.

Based on this approach, Rav Hirsch first develops and explains all the details of a mitzvah according to the halachic conclusion, and then weaves an explanation for the mitzvah that fits all those halachic details. At times, he must first take controversial positions regarding details of the laws of the mitzvah, something he is not afraid to do.

Frequently, Rav Hirsch presents approaches to ta’amei hamitzvos that none of the major mitzvah commentators suggest. For example, Rav Hirsch presents brilliant approaches to explain mitzvos such as arayos, keifel, arachin, and tumah and taharah, and why we disqualify blemished animals and blemished kohanim from the service of korbanos. In the case of tumah, he notes that the foundation of most religions is the fear of death, and this is when the priest assumes his greatest role. Quite the contrary, the kohen, the Torah’s priest, is banned from involvement with the dead. This is to demonstrate that the Torah’s goal is that we grow and develop throughout life – when we are in the heights of our best health. To emphasize this, we need to distance the kohen, whose role is to educate how to live as a Jew, from death.

Rav Hirsch uses the same concept to explain a different, seemingly baffling area of mitzvos. Why is a kohen who has a physical blemish or injury forbidden to serve in the Mishkan or the Beis Hamikdash? Similarly, why is an animal with a similar impairment prohibited as a korban? This emphasis on physical beauty or selectiveness seems to run counter to the Torah’s idea of equality. Everyone is equally responsible to develop a relationship with Hashem through His Torah.

Rav Hirsch explains that religions in general become the home of those who are challenged by society and cannot find their place. The Torah needs to emphasize that everyone’s goal is to grow and develop in his relationship with Hashem. The only way to convey this message fully is to demonstrate that the physically impaired cannot perform service in the holiest of places.

Rav Hirsch develops an extensive analysis of the reasons for korbanos in general, and the different korbanos in particular. Based on the nature of its species, its age and gender, each variety of animal is used to explain the message and concept of each type of korban.

Rav Hirsch explains beautifully why someone who is caught stealing is required to pay back double, keifel, whereas a robber is not. One who steals when no one is looking undermines a basic understanding that a society needs in order to function – that I can rely on a degree of trust among my neighbors. Thus, his sin undermined not only the trust of the individual whose property was stolen but also that of society as a whole, thus requiring a double act of compensation.

Ta’amei hamikra

Rav Hirsch emphasized that his commentary is based on a careful understanding of the Chumash text. Read the verse very carefully and see what it teaches. Include in the study the ta’amei hamikra, what is colloquially called the trop, according to which we read the text and which includes rules how to break a pasuk into smaller units to understand it correctly. To Rav Hirsch, any interpretation of the verse must include a proper understanding of the ta’amei hamikra.

Grammar — Dikduk and shoresh

There are several other ways in which Rav Hirsch’s commentary is different from other approaches to study Chumash. People often note his original use of dikduk, particularly his development of understanding Torah ideas based on the principle of shorashim that are phonetic cognates. This idea, used by Chazal and by rishonim,[x] is that different consonants that are articulated by using the same part of the mouth are related to one another.[xi] Thus, there is a relationship among the guttural consonants (ע ה א ח) that can be used to explain the meaning of related roots that use these or the labials (ב ו מ פ).[xii] Based on similar roots, Rav Hirsch develops a philosophic underpinning of the comparative roots, and then creates an associative meaning for each root. Often included within this system is a relationship pattern between similar consonants. For example, the tzadi often reflects a more intense version of other similar sounds, such as the sin. Thus, there is a conceptual relationship between יצר, which means to limit something for a specific purpose, and יסר, which educates, shapes and disciplines the spirit. In literally hundreds of applications of these ideas, Rav Hirsch demonstrates an entire world of educational themes, each of which teaches a Torah perspective on the world.

The shoresh of a word can often explain to us not only why a specific term is used, but may sometimes provide educational and religious lessons. For example, when mentioning that Avraham Avinu moved his followers from Shechem to the mountain, the Torah uses an unusual word ויעתק vayateik, which Rav Hirsch translates as He gave orders to move on.[xiii] Rav Hirsch there notes that this root is used in various places in Tanach for apparently different ideas, but whose common thread is that someone or something is moved unexpectedly or forcibly to a setting where it did not belong originally. Rav Hirsch thereby explains that Avraham realized that his followers needed to be isolated from the society around them for him to succeed in educating them, but he needed to overcome their resistance in doing so. Thus, from the proper study of the root of the word used, we gain an insight into Avraham’s pedagogic approach.

Rav Hirsch later notes that Avraham Avinu indeed took his followers with him to rescue Lot. This is seemingly an abrogation of his previous decision to have his followers live apart from society. The answer is that this was an emergency, and one cannot maintain separation under those circumstances. Again, we are provided with an education on how to run one’s life according to Torah standards.

Germane to this discussion, I would like to take issue with a comment made by the late Dayan Dr. Isaac Grunfeld in his beautiful essay written as an introduction to the first English translation of Rav Hirsch’s commentary to Chumash, by Dr. Isaac Levy. Dayan Grunfeld’s writes that the Hirsch Commentary is devoted to presenting “the unity of the Written and Oral Law as one of the fundamentals of authentic Judaism.” In this introduction, Dayan Grunfeld makes the following statement, “When Samson Raphael Hirsch began his commentary in 1867, he had the works of Mecklenburg and Hatorah Vehamitzvah of Malbim in front of him.” I presume that Dayan Grunfeld has some mesorah that this is true. However, from my work on Rav Hirsch’s commentary, and my comparison to the other two works, I personally am not convinced that this statement is accurate. My reasons are as follows:

When Rav Hirsch felt indebted to an earlier commentator, he always quoted his source. In the course of his commentary of Chumash, he quotes a wide variety of sources, including his rabbe’im, Chacham Bernays and Rav Yaakov Ettlinger (the Aruch Laneir), the highly controversial Naftali Wessely, and such late works as Harechasim Levik’ah. Yet, there is not a single reference anywhere in his commentary on Chumash to either Hakesav Vehakabalah or Hatorah Vehamitzvah.

The answer is simple: Rav Hirsch’s thrust in his commentary was different from theirs. His goal was not to demonstrate that Chazal’s understanding of Torah was the most accurate. His goal was to show that the Torah can be used as a basis for all of man’s growth in Torah, his proper personality development, and his hashkafah or world outlook.

There are places that Rav Hirsch leaves us with no explanation, whereas Hakesav Vehakabalah presents approaches that lend themselves perfectly to Rav Hirsch’s style of commentary. I will give one example: Rav Hirsch has almost no commentary to the lengthy list of travels that the Benei Yisroel made through the desert. Yet, Hakesav Vehakabalah has a beautiful explanation of the names and travels, which lends itself perfectly to Rav Hirsch’s use of Chumash to teach musar haskeil. Rav Hirsch himself uses other similar passages to teach musar haskeil, most noticeably the list of names of the decendants of Sheis. If he was in the habit of reading Hakesav Vehakabalah as part of his weekly reading, as Dayan Grunfeld implies, I cannot fathom why he did not use the opportunity to include these lessons in his Torah commentary and attribute them to Hakesav Vehakabalah, as he so often attributes explanations to earlier commentators.

Conclusion

Most of the innovations that have kept Torah alive in the last century are directly attributable to Rav Hirsch. Although Sarah Shenirer is the founder and basis of the Beis Yaakov movement, the originator of organized chinuch for women was Rav Hirsch, and his influence on everything related to the beginnings of the Beis Yaakov movement is axiomatic.

In most countries of the world, the majority of our Torah elementary schools and high schools include secular studies in their curriculum. This approach to Torah education is completely based on the framework of Rav Hirsch’s education system.

The extensive use of the vernacular for teaching Torah is another gift to us from Rav Hirsch. Certainly, the success of the numerous publishing houses that print and distribute Torah literature written in English, French, Spanish, Russian and other languages is completely based on Rav Hirsch’s producing his material in German.

The existence in the modern marketplace of highly trained professionals, as uncompromising in their professional standards as they are in their Torah observance, is directly attributable to the teachings of Rav Hirsch.

Rav Hirsch was the quintessential borei’ach min hakavod. Clearly, he saw his mission in life as educating the Jewish world with the beauty of Torah and its mitzvos. Leaving Moravia for what appeared to be a moribund Frankfurt may have been a disastrous move professionally, but for Klal Yisroel it has been the savior, not merely of the central European Torah world, but of virtually the entire contemporary Torah world. Yehi zichro boruch.


[i] I refer to the commentaries of the Malbim because, although he wrote on the entire Tanach, a rare accomplishment, his treatment of the different parts of Tanach is so varied as to make it difficult to refer to it as one commentary.

[ii] On Chumash, the Malbim follows two different styles. As I mention in the article, his work to Vayikra and parts of Devorim is an explanation of the midrashei halachah, the Sifra and the Sifrei, in which he delves into Chazal’s method of understanding Torah Shebiskav. On the other hand, his commentaries to other parts of Chumash bear close similarity to the commentary of the Abrabanel – he presents many questions on the topic at hand, and then weaves an explanation to answer them. Yet another style is presented in his commentaries to Esther and Shir Hashirim, in which he presents his own midrashic-style approach to these works.

[iii] Commentary to Bereishis 1:19

[iv] This point is the main thrust of Dayan Isaac Grunfeld’s introduction to Rav Hirsch’s commentary, which I will quote later in the article.

[v] See Yevamos 28a

[vi] See, for example, the second introduction of Yam shel Shelomoh of the Maharshal to Tractate Chullin.

[vii] For examples of this, see his explanation of the law of shifchah charufah, Vayikra 19:20 and of the pasuk velo setamei es admasecha, Devorim 21:23. See there how the other three commentaries we discuss deal with this topic.

[viii] See, for example, his commentary to Vayikra 18:4.

[ix] Devorim 24:18

[x] For example, see Rashi, Vayikra 19:16, where he explains that the word רכיל stems from the word רגל.

[xi] A language specialist calls these words homorganic consonants.

[xii] Those interested in seeing a systematic dictionary of Rav Hirsch’s work in this area are referred to Matityahu Clark’s Etymological Dictionary of Biblical Hebrew, Feldheim Publishers, which Rabbi Clark writes is “based on the commentaries of Rabbi Samson Raphael Hirsch.”

[xiii] Bereishis 12:8. Translation is from the Haberman edition.

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