Birkas Kohanim

Question #1: Why is this bracha different?

“Why is the bracha for duchening so different from all the other brochos we recite before we perform mitzvos?”

Question #2: Hoarse kohein

“If a kohein is suffering from laryngitis, how does he fulfill the mitzvah of Birkas Kohanim?”

Question #3: The chazzan duchening

“If the chazzan is a kohein, may he duchen?”

Answer:

I have written other articles about the mitzvah of duchening; this article will deal with a few specific issues not mentioned in the other articles.

First of all, I should explain the various names of this beautiful mitzvah. Ashkenazim usually colloquially refer to the mitzvah as duchening. The word “duchen” means a platform, and refers to the raised area in front of the aron kodesh on which the kohanim traditionally stand when they recite these blessings. However, in many shullen today, there is no platform in front of the aron kodesh, and, even when there is, in many shullen there are more kohanim than there is room for them on the duchen. In all these instances, the mitzvah is performed with the kohanim standing on the floor alongside the wall of the shul that has the aron kodesh, facing the people.

There are at least two other ways of referring to this mitzvah. One way of referring to the mitzvah is “Birkas Kohanim,”which is very descriptive of the mitzvah. I will use this term throughout this article, because it avoids confusion.

Nesi’as kapayim

The Mishnah and the Shulchan Aruch call this mitzvah by yet a third term, nesi’as kapayim, which means literally “raising the palms,” a description of the position in which the kohanim hold their hands while reciting these blessings. According to accepted halacha, the kohanim raise their hands to shoulder level, and each kohein holds his hands together. (There are some mekubalim who raise their hands directly overhead while reciting the Birkas Kohanim [Divrei Shalom 128:2]. However, this is a very uncommon practice.) Based on a midrash, the Tur rules that, while he recites the Birkas Kohanim, the kohein should hold his hands in a way that there are five spaces between his fingers. This is done by pressing, on each hand, the index finger to the middle finger and the small finger to the ring finger. This creates two openings — one between the middle finger and the ring finger on each hand. Another two are created between the index finger and thumb on each hand. The fifth opening is between the thumbs. There are various ways for a kohein to position his fingers such that he has a space between his thumbs. I know of several different methods, and I have never found an authoritative source that states that one way is preferable over any other. Most kohanim, myself included, follow the way that they were taught by their father.

An unusual bracha:

Immediately prior to beginning Birkas Kohanimbracha, the kohanim recite a birkas hamitzvah, as we do prior to performing most mitzvos. The text of the bracha is: Boruch Attah Hashem Elokeinu Melech ha’olam asher kideshanu bikedushaso shel Aharon, ve’tzivanu levareich es amo Yisroel be’ahavah. “Blessed are You, Hashem, our G-d, King of the universe, Who sanctified us with the sanctity of Aharon, and commanded us to bless His people, Yisroel, with love.”

Two aspects of this bracha are different from the standard structure of brochos that we recite prior to fulfilling mitzvos. The first change is that, instead of the usual text that we say, asher kideshanu bemitzvosav ve’tzivanu, “Who sanctified us with His mitzvos and commanded us,” the kohanim leave out the reference to “His mitzvos” and instead say “Who sanctified us with the sanctity of Aharon.” The second change is that the kohanim not only describe the mitzvah that they are performing — that Hashem “commanded us to bless his people Yisroel” –but they add a qualitative description, “with love.”

The fact that the kohanim make reference to Aharon’s sanctity is, itself, not unusual. It is simply atypical for us to recite or hear this bracha since, unfortunately in our contemporary world, we have no other mitzvos for which we use this text. However, when we are again all tehorim and when we have a Beis Hamikdash, every time a kohein performs a mitzvah that only a kohein can perform, such as eating terumah, korbanos or challah, donning the bigdei kehunah in the Beis Hamikdash (Artzos Hachayim, Eretz Yehudah 18:1, page 81b), or performing the mitzvos of offering korbanos, he recites a bracha that includes this reference. Unfortunately, since we are all tamei and we have no Beis Hamikdash, a kohein cannot perform these mitzvos today, and therefore we do not recite this bracha text at any other time.

“With love”

The other detail in this bracha that is highly unusual is the statement that the mitzvah is performed be’ahavah,“with love.” No other mitzvah includes this detail in its bracha, and, in general, the brochos recited performing mitzvos do not include details about how the mitzvos are performed. For example, the bracha prior to kindling the Shabbos or Chanukah lights says simply lehadlik neir shel Shabbos or lehadlik neir shel Chanukah,and does not add that we do so “with wicks and oil.” Similarly, note that the bracha recited before we pick up and shake the lulav and esrog does not even mention the esrog, aravos and hadasim, and says, simply, al netilas lulav. Again, the bracha for washing our hands is simply al netilas yadayim without mentioning any of the important details of the mitzvah. Yet, the bracha recited prior to Birkas Kohanim includes the word be’ahavah, with love. Why is this so?

Let us examine the original passage of the Gemara (Sotah 39a) that teaches us about the text of this bracha: “The disciples of Rabbi Elazar ben Shamua (who was a kohein) asked him, ‘Because of what practices of yours did you merit longevity?’ He answered them, ‘I never used a shul as a shortcut, I never stepped over the heads of the holy nation (Rashi explains that this means that when people were sitting on the floor in the Beis Hamedrash, as was common in his day, he never walked over them, but either arrived before everyone else did, or else he sat outside) and I never recited the nesi’as kapayim without first reciting a bracha.’”

The Gemara then asks, “What bracha is recited prior to Birkas Kohanim? Answered Rabbi Zeira, quoting Rav Chisda, asher kideshanu bikedushaso shel Aharon, ve’tzivanu levareich es amo Yisroel be’ahavah.

Thus, we see that the text that we recite prior to Birkas Kohanim is exactly the way the Gemara records it, and that the word “be’ahavah” is part of the original text. Why is this required?

The Be’er Sheva, a European gadol of the late 16th-early 17th century, asks this question. To quote him (in his commentary, Sotah 39a): “Where is it mentioned or even hinted in the Torah that the kohein must fulfill this mitzvah ‘with love’? The answer is that when the Torah commanded the kohanim concerning this mitzvah, it says Emor lahem, ‘Recite this blessing to the Jewish people,’ spelling the word emor with a vov, the full spelling of the word, when it is usually spelled without a vov. Both the Midrash Tanchuma and the Midrash Rabbah explain that there is an important reason why this word is spelled ‘full.’ ‘The Holy One, blessed is He, said to the kohanim that they should bless the Jewish people not because they are ordered to do so, and they want to complete the minimum requirement of that “order,” as if it were “forced labor” and therefore they say it swiftly. On the contrary, they should bless the Jews with much focus and the desire that the brochos all be effective – with full love and full heart.’”

We see from this Gemara that this aspect of the mitzvah, that the kohanim bless the people because they want to and not because they are required to, was so important to Chazal that they included an allusion to this in the text of the bracha, something that is never done elsewhere!

Brochos cause longevity

There are several puzzling questions germane to this small passage of Gemara that we quoted above. What was unique about Rabbi Elazar’s three practices that he singled them out as being the spiritual causes of his longevity? The commentaries explain that each of these three acts were personal chumros that Rabbi Elazar, himself one of the last talmidim of Rabbi Akiva and a rebbe of Rabbi Yehudah Hanasi, practiced (Keren Orah, Meromei Sadeh et al). Since our topic is Birkas Kohanim, we will address only that practice: What was unique about Rabbi Elazar’s practice of reciting a bracha before performing the mitzvah of Birkas Kohanim? Didn’t every kohein do the same? And, if so, why did the other kohanim not achieve the longevity that he did?

The Keren Orah commentary notes that the Gemara quotes the amora, Rav Zeira, as the source for the bracha on Birkas Kohanim, implying that the bracha on Birkas Kohanim was not standardized until his time, and he lived well over a hundred years after Rabbi Elazar’s passing. This implies that a bracha on this mitzvah was not necessarily recited during the era of the tanna’im and early amora’im. The Keren Orah suggests the reason for this was because Birkas Kohanim itself is a blessing, and we do not recite a bracha prior to reciting birkas hamazon or birkas haTorah, even though they themselves are mitzvos. Notwithstanding this consideration, Rabbi Elazar was so enthusiastic about blessing the people that he insisted on reciting a bracha before performing Birkas Kohanim. This strong desire to bless people was rewarded by his having many extra years to continue blessing them (Maharal).

Notwithstanding that the mitzvah is such a beautiful one, technically, the kohein is required to recite the Birkas Kohanim only when he is asked to do so, during the repetition of the shemoneh esrei. We will see shortly what this means practically.

Hoarse kohein

At this point, let us examine the second of our opening questions: “If a kohein is suffering from laryngitis, how does he fulfill the mitzvah of Birkas Kohanim?”

Let us examine this question thoroughly, starting from its sources in the Gemara: “One beraisa teaches: Koh sevarchu (‘this is how you should bless’): face to face… therefore the posuk says Emor lahem (say to them), as a person talks to his friend. Another beraisa teaches: Koh sevarchu, in a loud voice. Perhaps it means that the bracha should be said quietly, therefore the posuk says Emor lahem, as a person talks to his friend” (Sotah 38a).

This derives from the words of the posuk Koh sevarchu and Emor lahem two different laws. The first is that the audience receiving the kohanim’s bracha should be facing them during the Birkas Kohanim. (In error, some people turn around while the kohanim recite Birkas Kohanim, in order to make sure that they do not look at the kohanim’s hands. It is correct that they should not look at the hands of the kohanim who are duchening, but they can look down to avoid this problem, and, anyway, most kohanim cover their hands with their talis while duchening.)

The second law derived from these pesukim is that the kohein should recite the Birkas Kohanim loudly enough so that the people can hear him. Although there are kohanim who shout the words of the Birkas Kohanim, the continuation of the Gemara clearly explains that be’kol ram, in a loud voice, means simply loud enough for the people to hear the kohein. However, someone whose voice is so hoarse that people cannot hear him is not permitted to recite Birkas Kohanim and should leave the sanctuary part of the shul before the chazzan recites the word retzei in his repetition of shemoneh esrei (Mishnah Berurah 128:53).

Why retzei?

Why should the kohein leave the shul before retzei?

Some mitzvos aseh, such as donning tefillin daily, making kiddush, or hearing shofar, are inherent requirements. There isn’t any way to avoid being obligated to fulfill these mitzvos. On the other hand, there are mitzvos whose requirement is dependent on circumstances. For example, someone who does not live in a house is not obligated to fulfill the mitzvah of mezuzah. Living in a house, which most of us do, creates the obligation to install a mezuzah on its door posts. Someone who lives in a house and fails to place a mezuzah on the required doorposts violates a mitzvas aseh.

Similarly, the mitzvah of Birkas Kohanim is not an inherent requirement for the kohein. However, when someone asks the kohein or implies to him that he should perform the Birkas Kohanim, the kohein is now required to do so, and, should he fail to, he will violate a mitzvas aseh.

The Shulchan Aruch (Orach Chayim 128:2) rules that a kohein who remains in shul is required to recite Birkas Kohanim if (1) he hears the chazzan say the word kohanim, (2) someone tells him to ascend the duchen or (3) someone tells him to wash his hands (in preparation for the Birkas Kohanim). Any of these three actions summon the kohanim to perform the mitzvah, and that is why they create a requirement on the kohein. A kohein for whom it is difficult to raise his arms to recite the Birkas Kohanim should exit the shul before the chazzan says the word kohanim (see Shulchan Aruch Orach Chayim 128:4 and Mishnah Berurah). The Magen Avraham and the Elyah Rabbah conclude that it is preferred if he exits before the chazzan begins the word retzei. The Shulchan Aruch mentions that the custom is for any kohein who is not reciting Birkas Kohanim to remain outside until the Birkas Kohanim is completed.

Washing hands

The Shulchan Aruch we just quoted rules that telling a kohein to wash his hands creates the same obligation to recite Birkas Kohanim as directly summoning him to recite the Birkas Kohanim. Why is that so?

This is because the Gemara rules that “any kohein who did not wash his hands should not perform nesi’as kapayim.” The Rambam (Hilchos Tefillah Uvirkas Kohanim 15:5) rules that the washing before Birkas Kohanim is similar to what the kohanim do prior to performing the service in the Beis Hamikdash. For this reason, he rules that their hands should be washed until their wrists. We rule that this is done even on Yom Kippur, notwithstanding that, otherwise, we are not permitted to wash the entire hand on Yom Kippur (Shulchan Aruch, Orach Chayim 128:6). Several acharonim rule that, since Birkas Kohanim is a form of avodah, washing before performing this mitzvah includes other requirements, such as washing with a cup, with clear water, and with at least a revi’is (about three ounces) of water (see Magen Avraham, Yeshuos Yaakov, Shulchan Shelomoh and Mishnah Berurah).

In many shullen, a sink is installed near the duchen, so that the kohanim can wash immediately before Birkas Kohanim. Others have a practice that water and a basin are brought to the front of the shul for this purpose. These customs have a source in rishonim and poskim and should definitely be encouraged. Tosafos (Sotah 39a s.v. Kol) concludes that the kohein should wash his hands immediately before ascending the duchen. He rules that the kohein should wash his hands within twenty-two amos, a distance of less than forty feet, of the duchen. The Magen Avrohom (128:9) rules according to this Tosafos, and adds that, according to Tosafos, since the kohanim wash their hands before retzei, the chazzan should recite the bracha of retzei rapidly. In his opinion, the time that transpires after the kohein washes his hands should be less time than it takes to walk twenty-two amos, and, therefore, retzei should be recited as quickly as possible. The Biur Halacha (128:6 s.v. Chozrim) adds that the kohanim should not converse between washing their hands and reciting Birkas Kohanim, because this also constitutes a hefsek.

The chazzan duchening

At this point, let us examine the third of our opening questions: “If the chazzan is a kohein, may he duchen?”

This question is the subject of a dispute between the Shulchan Aruch and the Pri Chodosh. According to the Shulchan Aruch, if the chazzan is a kohein, he should not recite Birkas Kohanim, unless he is the only kohein. The reason he should not recite Birkas Kohanim is out of concern that he might get confused and not remember the continuation of the davening. The Pri Chodosh disagrees, concluding that this was a concern only when the chazzan led the services from memory, which, although very common in earlier era, is today quite uncommon. If the koheinchazzan is using a siddur, such that Birkas Kohanim will not confuse him from continuing the davening correctly, he can recite Birkas Kohanim

In chutz la’aretz, the accepted practice in this halacha follows the Shulchan Aruch, whereas in Eretz Yisroel, customs vary in different locales. In Yerushalayim and most other places, the accepted practice follows the Pri Chodosh, and the chazzan performs Birkas Kohanim.

When the chazzan does recite Birkas Kohanim, he turns around to face the people, recites Birkas Kohanim, and then turns back to complete the repetition of the shemoneh esrei. He is even permitted to walk to the front of the shul from his place in order to recite Birkas Kohanim should he be leading the services from the middle of the shul rather than the front.

Conclusion

As a kohein myself, I find duchening to be one of the most beautiful mitzvos. We are indeed so fortunate to have a commandment to bless our fellow Jews, the children of Our Creator. All the more so, the nusach of the bracha is to bless His nation Israel with love. The blessings of a kohein must flow from a heart full of love for the Jews that he is privileged to bless.

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The Cheese Factory

Driving on a secondary route after visiting an ice cream plant, I noticed a small cheese factory. At the time, I had no experience in the practical kashrus arrangements regarding the manufacture of cheese and whey in modern factories, but I was familiar with the topics as they are discussed in the Gemara, rishonim and poskim.

Being by nature a curious person, and also, perhaps more significantly, having a few hours to spare, I decided to drop in on the factory, hoping that perhaps I would be offered a tour of the production. I figured that if I didn’t ask, I would certainly not get a tour, and if I did get a tour, perhaps I would learn how cheese and whey are manufactured, and what needs to be done to make the products properly kosher.

Hashem made cow’s milk contain all the nutrients necessary for a newborn calf to grow big and strong until it is ready to be self-supporting by eating grass for its nutrition. The major components of milk are lactose, or milk sugar, which provides the carbohydrates a young calf needs; casein and other proteins; cream (the fat component); vitamins and minerals, including calcium for healthy bones; and about 90% water, which keeps the other ingredients in suspension. Manufacturing cheese requires precipitating (separating) the casein out of the milk and then coagulating it. These processes may involve use of a “starter” and “rennet.” The coagulated part of the milk, called the curd, separates from the rest, which is the whey. The curd is pressed into a solid block – the shape of the cheese.

The Gemara records many reasons why Chazal prohibited using cheese when a Jew did not participate in its manufacture or did not own its raw materials. In practice, having a Jew participate in the manufacture of cheese is usually accomplished by having a mashgiach add the starter and the rennet into the milk batch. Such cheese is called gevinas Yisroel (literally, cheese of a Jew), whereas gevinas akum (literally, cheese of a non-Jew) is the name for the type of cheese that Chazal prohibited. (Whether we resolve the prohibition of gevinas akum by having a Jew participate in the production, or by having him own the product, is a lengthy topic discussed in a different article available on this website.)

I pulled into the driveway of the cheese factory and saw a billboard attached to the sidewall of the factory, advertising the retail products that the company manufactured – cheddar cheese, Swiss cheese, mozzarella cheese and a few similar varieties. As I would soon find out, the company also did some private-label selling, which they did not advertise on a billboard, and also sold some industrial products, specifically, various forms of whey.

I no longer remember whether I had noticed that the labels of the products on the billboard had a large letter K on the package. Of course, we all know that this is not a registered kashrus symbol. However, there is a segment of the population, rapidly disappearing, of traditionally observant Jews who assume that a large K on a product means that it is kosher.

I was pleasantly surprised when the receptionist quickly ushered me into the office of the plant manager, who was also the company owner. I told him that I was interested in knowing the details of cheese production and happened to drive past his factory this day. I expected him to brush me off, telling me that he did not want to reveal any of his trade secrets. I was quite surprised that he was willing to walk me through the plant. Perhaps I looked very honest; perhaps he had no trade secrets to hide; perhaps small-town people are less suspicious; perhaps his pride in his business got the best of him. I just know that he was very willing to spend a considerable amount of time showing me around his facility, explaining all the details of production and answering all my questions, eagerly and fully.

I actually did get a very good education that day on how “hard cheese” is made. Subsequently, I also learned some side curiosities: for example, that true Italian mozzarella cheese is not made from cow’s milk, but from the milk of a water buffalo. (For the kosher consumer, it is good that you can make mozzarella from cow’s milk, because I have never seen anyone in the United States milk a water buffalo, although it is a kosher animal. It is commonly milked today in Italy, and I know that this could be arranged in Israel. Nevertheless, I am unaware of anyone who sells cholov Yisroel buffalo milk.)

My visit over, I thanked the plant manager for his wonderful tour, still curious why he had received me so nicely, and attributing it to my charisma. But then, I found out that he had an ulterior motive.

“You must be a rabbi,” he said. I guess my beard didn’t look too Amish. “I am in need of a new certifying rabbi. Could you help me?”

He then produced a letter from a nursing home in Brooklyn. The letter verified that the cheese produced by his factory was kosher. I assumed that the nursing home had a certifying rabbi, who also certified cheese factories and other facilities, although I saw no indication that any of the rules necessary to avoid the prohibition of gevinas akum were observed. This would usually require the presence of an on-site frum individual who added the ingredients that make the cheese form. Another option, rarely used, also existed: That the rabbi had arranged that he was a partial owner of the products being manufactured.

Could you be our new rabbi?

The owner/plant manager explained. “Rabbi Levine* certified our plant for many years. His fee was much lower than any other quoted to us. He used to visit the factory once a year, ask a few questions and collect his check. A few years ago, his wife died and, shortly thereafter, he moved into an assisted living facility. He still used to visit once a year, although it was quite obvious that he was getting on in years. The last two years, he contacted us, and we mailed him his annual fee. But our certification is now running out, and we have been trying to reach him, unsuccessfully. We do not even know if he is still alive! Could you be our new rabbi?”

Much as I would have liked to be makir tov to the factory owner for educating me about the production of kosher cheese, he was not interested in making the changes necessary for his cheese to be kosher according to any standard. I never met Rabbi Levine, but he was clearly out of his league in issuing a hechsher. I am unaware of any accepted heter that would allow this cheese to be considered kosher on the basis of its ingredients with no Jewish involvement in the production.

Permitted non-Jewish cheese?

In the times of the rishonim, there were areas of Europe, particularly in Italy and parts of France, with a long-established practice to be lenient regarding the consumption of the local cheese of non-Jews. Several rishonim quote this lenient position in the name of the Ge’onei Narvona. The lenience was based on the fact that the Jews knew the ingredients used by the gentile cheesemakers, and knew that none of the concerns mentioned by the Gemara was germane. The cheese was set with “flowers,” some variety of plant-based enzymes. I am told that, to this day, there are cheeses in some parts of Europe that use an enzyme found naturally in a variety of thistle. Perhaps this was the type of cheese that these communities used.

However, most rishonim rejected this reasoning, contending that the prohibition against non-Jewish cheese exists even when none of the original reasons applies. They contend that the prohibition has a halachic status of davar she’be’minyon, a rabbinic injunction that remains binding even when the reason the takanah was introduced no longer applies, until and unless a larger and more authoritative body declares the original injunction invalid. Since a more authoritative beis din never rescinded the prohibition on non-Jewish cheese, it remains – even when none of the reasons apply (Rambam, Ma’achalos Asuros 3:4; Rashba, Toras Habayis page 90b; Semag, Mitzvah 223; Tur, Yoreh Deah 115).

The Shulchan Aruch rules according to the majority opinion that there is no halachic basis for those communities that permitted use of the local non-Jewish cheese. The Rema follows a more lenient view, permitting use of non-Jewish cheese in a place where one can ascertain that there was a long-established custom to permit it. Therefore, no one in today’s world would be permitted to use non-Jewish cheese, with the possible exception of an Italian community that can prove a tradition dating back at least eight hundred years.

Gevinas Yisroel by observation

The Rema contends that a Jew observing the production of cheese makes the cheese gevinas Yisroel, which is, by definition, not subject to the prohibition of gevinas akum. In his opinion, this is true even when the milk and curdling agents are all owned by a non-Jew, and even when non-Jews performed all the steps in the cheese production.

The Shach, however, takes tremendous issue with this approach of the Rema, contending that if a non-Jew owns the milk, the acid, and the enzyme, and he places the acid or enzyme into the milk, the resultant cheese is prohibited as gevinas akum, even if an observant Jew supervised the entire production.

Gevinas Yisroel by ownership

According to some contemporary poskim, there are ways to make cheese kosher by making a Jew the owner of the product. If one follows this opinion, you could create some complicated kinyanim and, thereby, make the cheese gevinas Yisroel, fully kosher.

The Noda Biyehudah (Shu’t Noda Biyehudah II Orach Chayim #37) discusses a case where a Jew is “renting the schvag” of a non-Jew for the purpose of producing cheese. I do not know the meaning of the word schvag, and the many people I have asked do not know either (although some of them insisted otherwise). From the context in which the Noda Biyehudah uses the term, it seems that this was a Slavic word for a cheese factory. The case is that the Jew is contracting with the non-Jew to make cheese for the Jew in the gentile’s facility.

The Noda Biyehudah contends that when the Jew intends to purchase the cheese and also supplies the rennet, the Jew is already considered the owner of the cheese. Under these circumstances, there is no problem of gevinas akum, even according to the Shach. The Noda Biyehudah concludes that, under these circumstances, a non-Jew may produce the cheese without it becoming prohibited.

Another possibility, suggested by my good friend Rav Sander Goldberg, is that the word schvag was misspelled in the printed editions of the Noda Biyehudah, but refers to Schwab or Swabia, the hilly southwestern region of Germany that borders Switzerland, which was well known for its production of dairy products. Several early authorities, including Sha’arei Dura (#78) and the Maharil (#35), make reference to the heter of the שוואבין to allow non-Jewish butter. When the Noda Biyehudah refers to the שוכרים ,השוואגין he may be referring to Jews from the region of Swabia who would peddle cheeses; they would bring their own rennet, made from the stomach of a kosher slaughtered calf (keivah), to make the cheese. The Noda Biyehudah’s point is that even though the transaction between the non-Jews (who owned the cows) and the Jews (who brought the keivah) wasn’t finalized until after the cheese was made, and therefore technically the cheese still was owned by a non-Jew, nevertheless this is considered enough of a partnership to avoid the problem of gevinas akum.

Based on the Noda Biyehudah, the Orthodox Union (OU) once entertained the possibility of considering cheese as gevinas Yisroel on the basis that the mashgiach would own the rennet. However, they reached the following conclusion: “Not everyone agrees to the idea of the Jew owning the rennet. Rav Belsky feels that the type of scenario in which this is or would be done [having the mashgiach do a kinyan on the rennet] is not proper, as, in order for this to work, the cheese must be made for the Jew, rather than him technically having a kinyan in the rennet, with sale of the cheese to others. He [Rav Belsky] says that this is what the Noda Biyehudah meant: The Noda Biyehudah is discussing a case where the Jews rented the cheese plant, (which is how he understood the word schvag) and plan on buying the finished cheeses. In that case, the Noda Biyehudah says that the cheese is permitted. So he’s only saying that owning the rennet suffices where that gives the Jew a partial ownership in the cheese, as a first step towards taking full possession. As such, the Noda Biyehudah’s approach applies only in cases where the Jew now has a partial ownership and will later have full ownership, and there’s no basis for extending it to cases where the Jew really has no ownership and will eventually have even less.

“Both Rav Belsky and Rav Schachter accepted this argument that the Noda Biyehudah’s approach doesn’t apply in this case.”

In conclusion, we have suggested four possible ways to avoid the prohibition of gevinas akum, although some of these approaches are disputed:

1. A Jew (mashgiach)supervises the entire production of the cheese.

2. A Jew adds the rennet and starter, which causes the manufacture of the cheese.

3. A Jew is a proper partial owner of the milk from which the cheese is made.

4. A Jew supplies the rennet for the manufacture of the cheese and maintains partial ownership over the product.

I understand that, years later, this company did decide to produce properly kosher cheeses. I am glad.

* Name is changed.

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What Is a Tree?

Question #1:

Eggplants grow on a woody stem. Does this make the eggplant a tree and prohibit the fruit that grows during its first three years as orlah or not? Although this idea may seem strange to most people, at least one prominent posek held that eggplant is prohibited as orlah.

Question #2:

What is the correct beracha to recite when smelling carnations, lilies, or mint?

Question #3:

What is the correct beracha to recite before eating papaya, cane sugar, or raspberries?

Question #4:

May someone plant tomatoes in his vineyard in Eretz Yisroel?

Although these questions seem completely unrelated, each query revolves around the same issue: What is the halachic definition of a tree?

It is usually easy to identify a tree. We know the obvious characteristics that define oak and apple trees, and it is clear that trees differ from plants that grow in a vegetable patch. However, from a halachic standpoint it is not always obvious whether many of Hashem’s botanical wonders are trees or not.

It is critical to determine what fits the definition of a tree in order to clarify the following halachic issues:

1. What beracha one recites on its fruit.

2. What beracha one recites on its fragrance.

3. Whether the prohibition of orlah applies to its fruit.

4. How severe is the prohibition to destroy it (bal tashchis).

5. There are several agricultural halachos concerning kelayim, shemittah, and maaser, all of which are relevant only in Eretz Yisroel.

Let us clarify these five areas of halacha before we discuss the main focus of our article, in order to understand the ramifications of why we must know which plants are considered trees.

1. What beracha one recites on its fruit.

As the Mishnah teaches, the beracha before eating the fruit of a tree is borei pri ha’eitz, whereas the beracha on fruit that grows from the ground, such as peas, beans, cucumbers, and melons, is borei pri ha’adamah. (The botanical definition of a fruit is the fleshy part [technically, the developed ovary] of the plant that nourishes the developing seed. Many of the foods that we colloquially call “vegetables,” are in reality “fruits of the ground.”) Thus, it is important to ascertain how certain fruits such as bananas, papayas, and berries grow in order to determine whether they grow on what is halachically classified as a tree, in which case their beracha is ha’eitz, or whether the plant upon which they grow is not a tree and the correct beracha is ha’adamah.

2. What beracha one recites on its fragrance.

Chazal established five different berachos on fragrances, one of which is “borei atzei besamim,” “He who created pleasant-smelling wood (or trees),” and another, “borei isvei besamim,” “He who created pleasant-smelling grasses.” Just as one must recite the correct beracha on a food before eating it, so it is important to recite the correct beracha on a fragrance before smelling it. We will see later that whether the closest English translation of atzei besamim is pleasant-smelling wood or pleasant-smelling trees depends on an interesting dispute.

Determining whether the correct beracha is atzei besamim or isvei besamim is even more significant than determining whether the correct beracha is borei pri ha’eitz or borei pri ha’adamah for the following reason: If one recites borei pri ha’adamah on a fruit that should have been borei pri ha’eitz, one fulfills the minimal requirement bedei’eved (after the fact) and should not recite an additional beracha of borei pri ha’eitz. The reason for this is that every tree grows from the ground — thus praising Hashem for “creating the fruit of the ground” when eating a fruit that grew on a tree is not inaccurate. Therefore, someone who is uncertain whether a certain fruit is “of the tree” or “of the ground” should recite borei pri ha’adamah before eating it.

However, when in doubt whether to recite atzei besamim or isvei besamim on a specific fragrance, one may not recite either beracha. This is because trees and grasses are mutually exclusive categories — if something is a grass, it is not a tree and vice versa. Thus, reciting the beracha praising Hashem for creating pleasant-smelling grasses before smelling a tree is a beracha levatalah, a beracha said in vain, because it is inaccurate.

When someone is uncertain whether a plant is considered a tree or a grass, he should recite a third beracha, borei minei besamim, “He who created types of pleasant-smelling items,” even though this is certainly not the optimal beracha on this fragrance. This is equivalent to reciting the beracha of shehakol before eating an apple. One has fulfilled the mitzvah, albeit not in the optimal way, since an apple “deserves” a more specific praise.

3. Whether the prohibition of orlah applies to its fruit.

The Torah prohibits eating fruit that grew within the first three years of a tree’s life. Thus, if a particular plant is a tree, the fruit produced in its first three years is prohibited; if it is not a tree, the fruit may be eaten immediately.

Although orlah is an agricultural mitzvah, it applies outside Eretz Yisroel. However, there is a major difference between orlah on fruits that grow in Eretz Yisroel and those that grow in chutz la’aretz. In chutz la’aretz only fruit that is definitely orlah is prohibited, and one may eat fruit that is questionably orlah. This fact has major halachic ramifications. There is also a mitzvah of re’vai that requires redeeming the fruit of the fourth year. Ashkenazim follow the ruling that in chutz la’aretz the laws of re’vai apply only to grapes (Rema and Gra, Yoreh Deah 294:7), whereas Sefardim require the laws of re’vai on all fruit trees.

4. How severe is the prohibition to destroy it (bal tashchis).

Destroying a fruit-bearing tree without gaining benefit in the process is prohibited min HaTorah. Although one may not destroy anything without purpose, the Rambam rules that destroying a tree is a more serious prohibition (Hilchos Melachim 6:8, 10). Some poskim explain that only destroying a tree is prohibited min HaTorah, whereas destroying other items, including plants, is prohibited only miderabbanan, and therefore would have some leniencies.

5. There are several agricultural halachos concerning kelayim in a vineyard (kil’ei hakerem), shemittah, and maaser, all of which are relevant only in Eretz Yisroel. There are also halachos related to grafting one species onto the stock of another (harkavas ilan), which applies equally in Eretz Yisroel and in Chutz LaAretz.

One may not plant vegetables in a vineyard in Eretz Yisroel because of the prohibition of kil’ei hakerem, mixing species in a vineyard (Rambam, Hilchos Kelayim 5:7), although one may plant trees in a vineyard (Rambam, Hilchos Kelayim 5:6). In addition, if something is categorized as an edible plant, one must be careful not to plant it too close to another edible plant because of kil’ei zera’im, mixing species when planting. This mitzvah does not apply to trees.

OTHER LAWS

How one determines the year in which a plant grows differs between trees and plants. The cut-off point for determining the years of tree fruits is usually determined by Tu Bishvat, whereas for plants it is Rosh Hashanah. This affects the halachos of maaser and of shemittah.

In addition, which year of the maaser cycle a fruit belongs to is determined by whether its chanatah, which refers to a stage early in the fruit’s development, took place before Tu Bishvat or after; for a plant, it is determined by whether it is harvested before Rosh Hashanah. Furthermore, a plant that grew uncultivated during the shemittah year would be prohibited because of the prohibition of “sefichin,” whereas the fruit of a tree would not be affected by this concern.

We now understand why it is important to determine whether a particular plant qualifies as a tree or not.

WHAT IS THE DEFINITION OF A TREE?

The Random House dictionary I have on my desk defines a tree as, “a plant having a permanently woody main stem or trunk, ordinarily growing to a considerable height, and usually developing branches at some distance from the ground.” If we exclude the qualifiers, “ordinarily” and “usually,” then this definition does not consider a grape vine to be a tree since it lacks height if not supported and does not develop branches some distance from the ground. Since we know that halacha considers grapes to be fruits of the tree, this definition will not suffice. On the other hand, if we broaden the definition of “tree” to include all plants that have a “permanently woody stem or trunk” we will not only include grape vines, but also probably include eggplant, pineapple, and lavender which all have woody stems. On the other hand, several plants, such as the date palm and papaya, fit the Random House definition as a tree and yet grow very differently from typical trees. Are all of these plants trees?

Having demonstrated that the dictionary definition of tree is insufficient for our purposes, let us explore sources that may give us a halachic definition. The Gemara (Berachos 40a) states that one recites borei pri ha’eitz if “when you remove the fruit, the gavza remains and produces more fruit; but if the gavza does not remain, the beracha is not borei pri ha’eitz, but borei pri ha’adamah.” What is the “gavza” that remains to bear more fruit from one year to the next?

Among the major commentaries, we find three interpretations. Rashi translates gavza as branch, meaning that any plant whose branches fall off one year and then grow again the next is not considered a tree, even if the root and trunk (or stem) remain from one year to the next. There are berries whose stem remains from one year to next, but whose branches fall off during the winter (Tehillah Ledavid, Chapter 203). According to Rashi, the correct beracha on these berries is ha’adamah.

A second opinion, that of Tosafos, explains that “gavza” is the trunk or stem of the plant that remains from one year to the next and produces fruit (Ritva, Sukkah 35a). A plant whose root remains from one year to the next, but not its stem, is not a tree.

Many perennial fruits do not have a trunk that remains from year to year. (A perennial is a plant whose root remains from one year to the next and grows each year without replanting.) A banana plant is a perennial whose entire structure above ground dies each year and then grows again the next year from the root. According to Tosafos, bananas are not trees but plants; therefore their beracha is ha’adamah, not ha’eitz, and there is no orlah prohibition.

A third opinion, that of the Rosh and the Tur (Orach Chayim, Chapter 203), explains that any perennial is considered a tree and its beracha is ha’eitz. If the plant must be replanted each year (i.e., it is an annual) to produce fruit, then the beracha is ha’adamah, not ha’eitz. According to this understanding, the correct beracha on strawberries and bananas is ha’eitz since they are both perennials (not annuals), whereas according to the other opinions, the beracha on strawberries and bananas is ha’adamah.

The Shulchan Aruch and the Rema (Orach Chayim 302:2) rule that one recites borei pri ha’eitz if there is some type of stem that remains from year to year and produces fruit, but that the beracha is ha’adamah on perennials whose stem dies each year. However, it is disputed whether the reason we recite ha’adamah is because the Shulchan Aruch concluded like Tosafos, or because it is uncertain whether the beracha should be ha’eitz (like the Rosh and the Tur), or ha’adamah (like Tosafos), and we recite ha’adamah because of this uncertainty (Maamar Mordechai 203:3). There are several halachic ramifications that result from this question as I will explain later.

IS A TREE ALWAYS A TREE?

Is the definition of a tree the same for the halachos of orlah and kelayim as it is for berachos?

Tosafos (Berachos 40a) cites a passage in Talmud Yerushalmi (Kelayim 5:7) that something may not qualify for the definition of a tree for the laws of berachos and yet be considered a tree for the laws of kelayim, whereas the Ritva (Sukkah 35a) contends that the definition of the Gemara (Berachos 40a) for berachos applies to orlah as well. Tosafos concludes that the beracha on most perennial berries is ha’adamah because the bush does not remain from year to year, even though the bushes have the status of trees concerning kelayim and therefore may be planted in a vineyard.

IS HEIGHT A FACTOR?

Are there any other factors that define a tree other than what the Gemara mentioned? Must a plant grow tall to be considered a tree?

The Magen Avraham (203:1) rules that even if a tree grows very short, the correct beracha on its fruits and berries is borei pri ha’eitz. However, the prevalent minhag is to make a pri ha’adamah on berries that grow on plants which are less than three tefachim tall (about nine or ten inches), even though they meet all the other requirements of trees. The reason for the minhag is that a plant with such short stature is not considered significant enough to be a tree (Chayei Odom 51:9; Mishnah Berurah 203:3).

However, we should note that although the custom is to recite ha’adamah on the fruit of these small perennial bushes, the fruit grown in the first three years of the tree’s life is nonetheless prohibited because of orlah (Ritva, Sukkah 35a). Cranberries would fit into this category since they are perennial, yet grow on the ground of a bog. Thus, orlah applies to them, yet their beracha is borei pri ha’adamah.

We have now covered most of our opening questions, and plan to continue this discussion in a future article.

Man himself is compared to a tree (see Rashi, Bamidbar 13:20); and his responsibility to observe orlah, terumos, and maasros are intimately bound with the count that depends on Tu Bishvat. As Rav Hirsch explains, by observing Hashem’s command to refrain from the fruits of his own property, one learns to practice the self-restraint necessary to keep all pleasure within the limits of morality.

The author thanks Rabbi Shmuel Silinsky for his tremendous assistance in providing agricultural information for this article.

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Finding a Compatible Place for Our Family’s Outings

As reported to Rabbi Yirmiyohu Kaganoff

My sister and her family are coming for an extended summer visit for the first time in many, many years which has us all very excited! We need to figure out all the logistics of having everyone together– where will everyone sleep, and how to arrange sufficient seating space and chairs. After all, they have a very large family, and each of our boys is accustomed to having his own room.

And we want to make sure that the visiting family is comfortable. In truth, there have been some sticky situations in the past. Well, let me put it this way. We are frum, but we do not keep all the chumros that they do. This has created some uncomfortable situations. We realized that, to have an optimal relationship with them, we need to be very accommodating to their needs, which is not so simple when we are not always certain what their needs are. To complicate matters further, we have discovered that they don’t trust the opinions of our rabbi. But they are really wonderful people, and in addition, mishpacha is mishpacha!

We already know that when they come we should make sure to have plenty of chalav Yisrael products available and to double check which hechsherim they accept. We know that they will not use the eruv, which our rabbi himself does. To each his own, I guess. But I want to make sure that they are comfortable; we really want to have a nice Yom Tov together, and so do they.

Since they have never been here for such an extended stay, we would like to show them the sites of town. Our city is blessed with many interesting museums, many of them extremely child friendly. Hopefully, these will help make the visit memorable for all.

But, one second. Muttie, my brother-in-law, is a kohen, and he has told me that he is very careful about checking any museum before he goes there. It would be really nice if I could figure out in advance which museums he can visit so that we can plan the itinerary.

Maybe we can take his under-bar-mitzvah boys to the Children’s Museum without any concern? I am going to call the rabbi. After all, he is also a kohen.

I reached Rabbi Katz on the first try. He told me that the prohibition of making a kohen tamei also applies to a kohen who is too young to be obligated in mitzvos. An adult Yisrael may not bring a child or baby who is a kohen into a place where he would become tamei meis, such as a cemetery or funeral home. He told me that some kohanim are extremely careful not to visit people in hospitals, even in places where most of the patients are not Jewish – not that we are planning any hospital visits during their stay.

While on the phone, I asked Rabbi Katz if there was any problem with a kohen going to a museum. He replied that he himself does go, but he knows of kohanim who refrain from doing so. I asked him what the issue was, to which he responded that he would speak to Rav Gross, the city’s av beis din, so that he provides me with fully accurate information.

Rabbi Katz called back to explain that the tumah that spreads from human remains throughout a room or building is called tumas ohel. This does not affect non-Kohanim today, since everyone is tamei anyway, and to remove this tumah requires ashes of the parah adumah – which are, of course, not available today. However, a kohen must be careful not to enter a building that contains Jewish remains.

Rav Gross had explained that there is a dispute whether a kohen may enter a museum in which there are human remains inside a glass-enclosed display area. He explained that, whereas Jewish remains certainly convey tumah whether they are touched, carried or in the same room as a person, and sometimes even if they are in the same building, it is disputed whether non-Jewish remains convey tumah when they are in the same room if they are not touched or carried.

Rabbi Katz added, “When a museum contains parts of human bodies, we do not usually know whether these are from Jewish bodies or not. Since most of the world is not Jewish, we may assume that they are from non-Jews. In addition, the remains in a museum are usually inside glass displays that can be opened when necessary. Some authorities contend that this glass enclosure is halachically equivalent to having the remains in a different room, and, in their opinion, a kohen may enter a museum.”[1]

Apparently, Rav Gross had concluded that, because of these two reasons, a kohen wanting to visit a museum where all the remains are inside display cases has a basis to be lenient.

Although I was glad to discover that my kohen friends who visit museums have a basis to do so, I realized that Muttie would probably not accept the lenient approach. I remembered a time that we were visiting them and they had taken us to a neighborhood children’s museum with many “hands-on” science exhibits perfect for children. Upon turning a corner of the museum, we discovered an area described as a “Native American Burial Ground,” complete with bones for realistic effect. Assuming that the bones were artificial, Muttie had asked the receptionist, “Are these bones authentic?”

The receptionist answered casually, “Actually, we have no reason to assume that the bones are from Native Americans; they were acquired from a medical school, which receives them as donations. Based on the bone structure, our curator feels that these are really Caucasian, but he is not certain.”

Upon hearing this information, Muttie bee-lined an abrupt exit from the museum. Indeed, they were not authentic Indian bones, but they were authentic human bones! Unquestionably, Muttie is concerned about human bones even when they are probably of a non-Jew. I was also fairly certain that Muttie would not want to rely on the fact that the remains are inside a glass display, although I had no idea why this would provide a reason to be lenient.

At this point, I remembered a cute little theater that runs actual Shakespeare plays. What could be wrong with Shakespeare? I inquired, and discovered that one of the props for Hamlet is a real skull! I had just about given up on this idea, when I mentioned it to Rabbi Katz. He commented, “Check it out. I remember once discovering that these skulls are not complete, and that there is a halacha that a damaged skull does not convey tumah throughout a building.”[2]

Off I went to check Hamlet’s skull. Much to my surprise, they were willing to show me the actual skull that they used, although they told me that they have no crossbones. Sure enough, I discovered that the top of the skull had been replaced with a metal plate. I am no Torah scholar, and had no idea whether this would be acceptable.

I called Rav Gross, and described to him the Shakespearian skull, explaining the family situation so that he would realize that I was not hunting for a lenient opinion. He told me that there was no kohen issue. “If one removes enough of an area of a skull that a live person would not be able to survive, the partial skull remaining no longer spreads tumah unless it is touched or carried.[3] The subsequent repair with a metal plate does not cause the skull to spread tumas ohel, although it would spread tumas ohel if the removed skullcap was in the same room.”[4]

Since I did not envision Muttie or his sons joining the cast of Hamlet and actually touching the skull, it seemed that we would be able to take them to the Shakespeare Theater as a special activity. I thanked Rav Gross for sharing his scholarship with me, at which point he made the following observation:

“Are you sure that this is the type of entertainment that your brother-in-law and his children would appreciate?”

Admittedly, this question had not even occurred to me. What could be inappropriate about Shakespeare? Then again, Muttie’s priorities in education are very different from mine. I was no longer sure if this was the type of outing that he would consider memorable.

So, I resigned myself to try to verify if any of our museums are kosher for kohanim. I asked the local Vaad Ha’Ir if they had ever researched the museums. They told me that although that would be a good idea, they had never done so. They added that they would be very eager to follow up on whatever I discover.

I called the information desk at the Children’s Science Museum and explained that I have company from out of town who are unable to visit the museum if it contains any human remains. I realized that they must have thought I was absolutely bonkers! I can just imagine the conversation that transpired among the receptionists on their lunch break!

Although the information desk notified me that there were no human remains to be had anywhere in the museum, I did not get any sense that they took me seriously. Apparently, I would have to take a trip there to check it out myself.

Before visiting the museum, I decided the best way to handle the situation was to call Muttie directly, and try to get direction from him what the parameters are.

I received quite an education from Muttie. To paraphrase what he told me: “A close friend of mine, who is not a kohen, often visits museums to verify whether a kohen may enter. Among the most common remains he finds are mummies, human bones, skeletons, and preserved fetuses, but occasionally he has discovered preserved human organs or entire cadavers. One museum had an empty stone casket that had been found in Eretz Yisrael with an obvious Jewish name on it. Since the supports of a grave are also sometimes tamei,[5] we had a shaylah whether this contaminated the entire museum.

“Often, displays of these items are not inside glass-enclosed areas, which increases the halachic concerns. For example, he has discovered on the shelves of museums such artifacts as Aztec musical instruments carved from the femurs of captured prisoners, as well as bowls hollowed out from skulls.” Muttie noted that these bowls pose a problem only if the kohen touches them or picks them up – boy, was he impressed when I was able to explain to him why! (Actually, I found out later that my reasoning was wrong, but explaining this will have to wait for a different time.)[6]

Muttie mentioned that on one visit, his friend noticed a display of a giant, which he assumed was a mannequin – but on closer inspection, it turned out to be a giant whose remains had been preserved in formaldehyde!

Muttie’s friend feels that a kohen who would like to visit a particular museum should first have a knowledgeable non-kohen carefully research the entire museum. From first-hand experience, he can attest that one should not rely on the information desk personnel – they are often uninformed regarding what the museum owns. In one instance, the information desk insisted that a museum had absolutely no human remains although it had on display ossuaries containing human bones!

Muttie continued: “The curators also often make mistakes. In one museum, we asked the curator whether the skull on display was real. She told us that she knows that the museum purchased it from a supplier who sells only replicas and not real skulls or skeletons. I asked her if there was any way that one could look at a skull and tell if it was real. She responded that you can usually tell by making a very careful inspection of its teeth. To demonstrate the difference between the replica and a real skull, she opened the display to show him – and discovered, much to her surprise, that the skull was real! It turned out that the museum had purchased it at a time that the supplier sold real specimens!

“Lesson to learn: Be careful and ask lots of probing questions.”

Muttie then told me an interesting bit of information. “When approaching a museum, one should ask if it contains any remains that fall under the NAGPRA act, the Native American Graves Protection and Repatriation Act. This was a law passed by Congress requiring many institutions to return Native American cultural items and human remains to their respective peoples. Under one provision of this law, these institutions are required to catalog all Native American burial items and religious artifacts in their collections, in order to identify the living heirs, or if there are culturally affiliated Native American tribes or Native Hawaiian organizations who are interested in the remains or artifacts.

“Someone trying to find out whether a museum contains tamei remains can easily begin his conversation with the curator or collection manager by mentioning NAGPRA. Since they are familiar with the requirements of this law, the subject of human remains and their cataloging in the museum’s collections is no longer so strange to them. One can use this as an entrée to discuss what a kohen is and what our halachic concerns are. I have found that the curators are usually very helpful; however, one must ask very specifically about each type of item, such as skeletons, skulls, bones, preserved organs, and mummies, since they are not thinking about tumah but about science. A museum curator categorizes these different items according to their branch of science: either as biology, anatomy, ancient history, or anthropology.

“Furthermore, sometimes the curators themselves do not know what the museum has in storage. Here, one often gets into very interesting halachic questions that one needs to discuss with a top-of-the-line posek. For example, while looking at one museum, someone discovered that a different floor of the building contained drawers filled with all sorts of human remains.

“By the way,” Muttie noted, “there are other things to be concerned of in museums, even if one is not a kohen. Many museums contain actual idols that constitute real avodah zarah. The question arises whether one may even look at them.”

My brother-in-law pointed out that when the Torah states al tifnu el elilim, do not turn to idols,[7]the prohibition includes looking at idols.[8] The Magen Avraham[9] explains that the Torah prohibits only gazing at an idol, but does not prohibit glancing at it. Therefore, seeing it is not prohibited, but intentionally looking at it is. Thus, one must be wary of this prohibition when visiting a museum that may include idols, statues, and images.

While I was contemplating this last detail, Muttie called me back to our original topic with the following comment: “Jerry, do you know what kind of massive undertaking this is? The reason I rarely take the family to museums is that I am always uncertain what they contain, and I know how difficult it is to really determine what they have – the curators themselves often don’t know.

“I must tell you. I am so appreciative of your putting this effort into making sure we have a nice time. But for the next few weeks I am sure that you have plenty of other responsibilities. Besides, my kids are not oriented toward museum visits — they spend most of their time in yeshiva, and they much prefer spending time playing ball and running around in the park over visiting museums. I am sure your wonderful boys have nice friends, and the cousins and the friends can play some ball. For my kids that will be seventh heaven – and something much more memorable.”

I must admit that it had not even occurred to me that the cousins would enjoy just playing ball together. Indeed, we had an absolutely wonderful time together that the cousins will all remember for years to come! And I left to someone else to research whether the local museums are kohen-appropriate. Are you interested in working on this project on behalf of klal Yisrael?


[1] See Shu’t Maharsham #215

[2] Ohalos 2:3

[3] Ohalos 2:3

[4] This conclusion is based on Ohalos 2:6 and 3:1.

[5] It would seem that according to Rashi (based on his explanation of Eruvin 15a and Kesubos 4b and other places) and other authorities, this would qualify as a dofek that spreads tumas ohel; see Ohalos 2:4. However, for a variety of reasons, most later authorities would be lenient in this instance.

[6] The reason there is no tumas ohel in this instance is because there is not enough bone to present a problem; see Ohalos 2:1, 3. However, even a very small amount of human bone will cause tumah if it is touched or carried; see Ohalos 2:5.

[7] Vayikra 19:4

[8] Yerushalmi, Avodah Zarah 3:1; Rambam, Hilchos Avodah Zarah 2:2; Sefer Hamitzvos, Lo Saaseh #10; Sefer Hachinuch #213

[9] 307:23

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More on Orlah

Question #1: Chopping Down the Cherry Tree

“A year ago, I transplanted a cherry tree in order to sell the wood, which is widely used by artists for delicate artistic carving. I see that many cherries have grown on the tree. Are they prohibited as orlah?”

Question #2: Sabra Borders

“Someone planted a sabra tree (also known as a “prickly pear,” “cactus pear” or “Indian fig”) as a natural border fence for his property, and placed a sign telling people not to help themselves to the fruit. Is there an orlah prohibition on the fruit?”

Question #3: Woody Fuel

“I live in a rural area without electricity. We run a nature resort and chop wood for heating and cooking. If I plant trees for wood, do I need to keep track of which year I plant the tree, due to orlah concerns?”

Of the many agricultural mitzvos, one of the most fascinating ones we have is orlah. Orlah roughly means that during the first three years of a tree’s growth, any fruit that grows on it cannot be eaten or benefited from. The mitzvah is unique in many ways and its laws contain some very interesting rules and applications.

One of the insights that this mitzvah provides is that it shows that the Torah requires us not to limit ourselves to the studies of religion and philosophy, or even of just Tanach and Gemara.  It is impossible to put the laws of orlah into application without an extensive scientific knowledge. An incredible number of botanical details must be understood in the practical application of this mitzvah, and observing orlah properly requires investigating these details.

As a child, I was told that orlah is a very rare mitzvah, since there are no trees that produce fruit in their first three years. Notwithstanding that the Ramban (ad locum) implies this, one cannot rely on this halachically for two reasons:

Firstly, many trees and, in particular, bushes produce fruit and berries in their first three years.

Secondly, it is possible to have orlah on trees that are older than three years.

Let us begin with this topic by examining the pesukim in which this mitzvah is presented:

Vechi savo’u el ha’aretz, u’netatem kol eitz ma’achal va’araltem orlaso es piryo, shalosh shanim yihyeh lachem arei’lim, loyei’acheil.” “And when you come to the land and you plant any fruit tree, you shall treat yourselves as restricted against the fruits; for three years they shall be restricted to you, you shall not eat them” (Vayikra 19:23).

Let us now dissect this pasuk:

“Vechi savo’u el ha’aretz,” “And when you come to the land.” What land is the pasuk talking about? We can safely assume for now that it is Eretz Yisrael.

Kol eitz ma’achal.” Since the pasuk later references “piryo,” “its fruit,” we know that the tree bears fruit. What, then, is the pasuk telling us by referring to the tree as “eitz ma’achal”?

It is telling us that the mitzvah applies only when a tree is planted for the purpose of consuming its fruit.

Allow me to explain. Here are three examples of trees that are not planted for fruit:

A. A tree planted for lumber.

B. A tree planted as a boundary marker.

C. A tree planted to produce firewood.

Regarding trees on the above list, the Mishnah (Orlah 1:1) teaches that fruits that grow during the first three years of the life of the tree are permitted. However, there is a caveat to this heter: It must be clear that the tree was not planted for its fruit.

Here is an example:

Trimming the side branches of a tree demonstrates that the tree was not planted for its fruit. When you plant a tree for fruit, the side branches are beneficial. After all, the more branches there are, the more fruit usually grow. In addition, the lower branches are easier to reach, facilitating harvesting.

Trimming the side branches, however, assures that the tree grows straight and tall, yielding taller lumber. Therefore, trimming the side branches proves that your purpose is not for the fruit.

Similarly, if trees are planted close together, that proves that they are not intended for their fruit, since spacing is important for optimal fruit growth.

Chopping down the cherry tree

“A year ago, I transplanted a cherry tree in order to sell the wood, which is widely used by artists for delicate artistic carving. I see that many cherries have grown on the tree. Are they prohibited as orlah?”

The answer is that if you cultivated the tree in a way that it is obvious that you were interested in the wood and not the fruit, even what grew in the first three years is permitted. Also see below that there might be another reason why the cherries are permitted.

Sabra borders

At this point, we can also discuss the second of our opening questions: “Someone planted a sabra tree (also known as a “prickly pear,” “cactus pear” or “Indian fig”) as a natural border fence for his property, and placed a sign telling people not to help themselves to the fruit. Is there an orlah prohibition on the fruit?”

Had the owner planted the tree only as a border, it would not be eitz ma’achal, and the fruit that grew during the first three years would be permitted. However, this is dependent on the intentions of the planter. In this instance, since the owner put up a sign telling people not to take the fruit, he is clearly interested in the fruit crop. Therefore, the fruit is prohibited.

Another exception in which the fruit is prohibited:

Even if a tree is exempt from orlah restrictions due to any of the above situations, if the owner changes his mind and begins to use the tree as a fruit tree, whatever fruit grow during the remainder of the initial three-year period subsequent to this change are prohibited as orlah.

Woody

We can also answer the third of our opening questions: “I live in a rural area without electricity. We run a nature resort and chop wood for heating and cooking. If I plant trees for wood, do I need to keep track of which year I plant the tree, due to orlah concerns?”

There are no orlah concerns if the way the tree is grown or cared for demonstrates that it is being grown only for firewood.

Continuing our analysis of the pasuk: “va’araltem orlaso es piryo.” “You shall treat yourselves as restricted against the fruits.”

Fruits only
Only the fruits of the orlah tree are forbidden. The branches and non-fruit parts of the tree are permitted. However, the entire fruit, including shells, skins, and seeds, is forbidden. Furthermore, even inedible fruit that grow from an edible fruit tree is forbidden. For example, grapes which have not or will not develop are prohibited as orlah.

Benefit
In addition to being forbidden to eat orlah fruits, we are also forbidden to derive benefit, hana’ah, from them.

How does this manifest itself in practice?

It is prohibited to make a dye from the skins or shells of orlah fruits. We may not use the seeds of an orlah fruit for coloring, nor may we use them for fertilizer or animal food. Furthermore, even more indirect methods of benefit are prohibited. Allow me to elaborate:

Let us say that I own a tree whose fruit is orlah. I am not allowed to eat its fruits, but there is no such restriction on my non-Jewish neighbor. Orlah is not one of the mitzvos that a ben noach, a non-Jewish Noahide, is required to observe. However, since the fruits are assur behana’ah, prohibited for benefit, I am not allowed to give the fruits to him, nor am I allowed to tell him to help himself. This is because when I give him a gift, I will likely make him feel indebted to me. He might be motivated to give me something in return, and that would be a benefit derived from the orlah fruit.

What, therefore, should I do with these fruits? Should I just leave them on the tree?

Rav Shlomo Zalman Auerbach paskened that to leave orlah fruits on the tree would create a stumbling block. Passersby might not realize that the fruits are forbidden, and they might eat them. His psak was to take the fruit off the tree and dispose of them in the halachically prescribed method, i.e., by burning them.

Chutz La’aretz
As we said earlier, the pasuk says “Vechi savo’u el ha’aretz,” “When you come into the land,” which we take to mean Eretz Yisrael. Why then is orlah not an agricultural mitzvah that applies only in Eretz Yisrael?


The Gemara (Kiddushin 39a) teaches that orlah in chutz la’aretz has a unique status. It is a halacha leMoshe miSinai, a halacha that we have an oral tradition dating back to Moshe Rabbeinu, and one for which we do not have a textual source in the Torah. This halacha, of orlah in chutz le’aretz, comes with an unusual leniency regarding questionable orlah, as follows:

In Eretz Yisrael, before buying a fruit, one is obligated to research and determine whether or not the fruit is orlah. When in doubt, the fruit must be treated as orlah and prohibited.In chutz la’aretz, on the other hand, one is not obligated to conduct any research. The fruit will only be forbidden if it is definitely orlah.

What is a tree?
How do we define a tree for the purposes of orlah?
While the poskim debate if the qualifications for orlah are the same as those for hilchos berachos, the qualifications for hilchos berachos give us a good starting point. The Gemara (Berachos 40a) defines a tree for the purpose of making borei peri ha’eitz as one that does not lose its trunk from year to year. According to this, if a tree trunk degenerates every year, or if it requires replanting every year, it is not halachically a tree.

However, the achronim give us further qualifications for consideration of a tree’s halachic status. For a discussion of these qualifications, I refer the reader to the articles on the website RabbiKaganoff.com, under the search words “tree” or “orlah.”

Three years

How do we calculate the three years for orlah?

Orlah is calculated in a very interesting way. If a tree is planted before the 15th of Av, its fruits that appear after the third Tu Bishvat are permitted. If the tree is planted after the 15th of Av, then only the fruits that appear after the fourth Tu Bishvat will be permitted. Thus, a tree planted before the 15th of Av, will produce permitted fruits a year earlier than a tree planted on or after the 15th of Av.

With most fruit, we calculate this based on the fruit’s first appearance. With some species however, such as olives, grapes, and carobs, this is calculated based on a specific stage of the fruit’s growth. Details of these halachos are beyond the scope of this article.

Up until now, we have discussed orlah as applying only during the first three years of a tree’s life. However, as mentioned previously in this article, it is possible to have a tree that is even older than three years and still subject to orlah.

How can this be?

The Mishnah in Orlah (1:3) teaches us that if a tree is uprooted and replanted, its orlah count sometimes starts afresh.

When the uprooted tree is uprooted along with enough soil for it to survive, the orlah count continues as it was; i.e., if the tree was past its three years, its fruit is permitted.

If, on the other hand, the tree is uprooted without enough soil for it to survive, it is viewed as if it was planted anew, and the orlah count starts from scratch.

What, then, constitutes enough soil for the tree to survive?

This is a machlokes rishonim, with some opinions defining that it means that the tree can survive for fourteen days, and other opinions requiring it to survive all the way to three years. In chutz le’aretz, since we are lenient with all orlah questions, we will rely on the opinions that require only fourteen days; in Eretz Yisrael, many poskim say that we must follow the stricter opinions.

Conclusion

In addition to the three years in which orlah is forbidden, the Torah rules that the fruit of the fourth year of a tree is holy, with the same laws as maaser sheini, that they. Both the fourth-year product, called reva’i, and maaser sheini should be eaten within the walls of Yerushalayim, and may be eaten only when we are tehorim; otherwise, the sanctity of the fruits must be redeemed, a topic I discussed in a different article.As the Torah states: “And when you come into the land and you plant any fruit tree, you shall treat yourselves as restricted against the fruits; for three years they shall be restricted to you, you shall not eat them. And in the fourth year, all its fruit shall be holy for praises to Hashem. Only in the fifth year may you eat its fruit – therefore, it will increase its produce for you, for I am Hashem your G-d (Vayikra 19:23-25). We see that Hashem, Himself, promises that He will reward those who observe the laws of the first four years with abundant increase in the tree’s produce in future years. May we soon see the day when we can bring our reva’i and eat it b’taharah within the rebuilt walls of Yerushalayim!

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Believing Is Seeing

Question #1: Kiddush Levanah on an Airplane

“It was cloudy on motzaei Shabbos, so I was unable to be mekadeish levanah after davening in shul. Later that night, I left for the airport, and I am now sitting in my window seat, which includes a beautiful view of the new moon. May I be mekadeish levanah now, although I am indoors, and I am also obviously looking at the moon through a window?”

Question #2: Havdalah on a Lightbulb

“I have been told that Rav Chayim Ozer, the posek hador before the Second World War, deliberately recited the brocha of borei me’orei ha’eish on an electric light. How could he have done this when a lightbulb must be encased in glass for it to burn?”

Question #3: This Week’s Parsha

“What do the above questions have to do with this week’s parsha?”

Foreword

Of the many mesechtos of Mishnayos, the tractate named Nega’im, so germane to a proper understanding of both of this week’s parshios, may have the distinction of being the least familiar mesechta. Since few of us regard the laws concerning tzaraas on people, clothes and houses to be applicable, there is a tendency to assume that these are difficult topics and, therefore, they are often not studied. Nevertheless, a tremendous amount of Torah knowledge lies in this mesechta, in addition to it being essential to understand this week’s Torah readings correctly.

Mesechta Nega’im is arguably the most organized of the mesechtos of Shas.

Notwithstanding its length (it is the fourth longest mesechta), someone familiar with it can locate any Mishnah or subtopic effortlessly, since each of its 14 chapters is focused on a very specific aspect of the laws of nega’im and tzaraas.

The first chapter describes the various colors that a nega may have; the second, the details concerning how a nega is examined; the third is an overview and comparison of the various types of negaim. The fourth chapter discusses the symptoms of white hair and expansion that are mentioned prominently in the Torah; the fifth chapter discusses cases of questionable tzaraas; the sixth explains the laws of healthy-looking skin inside a nega, known as michyah. The seventh chapter discusses cases of nega’im that are not tamei; the eighth analyses the laws of a nega that covers the entire body; the ninth chapter explains the laws of nega’im on injured skin; and the tenth chapter teaches the laws of negaim on the scalp and beard.

The last four chapters are also very clearly organized, dealing, in order, with nega’im on clothing (Chapter 11), on houses (Chapters 12 and 13) and the process of making someone tahor after he became a metzora (Chapter 14).

Viewing

As I mentioned above, the second chapter of Mishnayos Nega’im is devoted to the details concerning how a nega is examined. Among the many issues discussed here are the times of the day that the lighting is adequate for a kohen to view and rule on nega’im, the quality of vision required of a kohen to do this, and how a kohen examines a nega inside a house that does not have quality lighting.

This week’s parsha

Notwithstanding the fact that I have just sung the praises of the importance of proper organization and how much was invested in mesechta Nega’im, I am going to discuss the last of our opening questions first. “What do the above questions have to do with this week’s parsha?” To answer this question we need to explore a relatively minor detail germane to the laws of nega’im.

Seeing is believing

Among the issues discussed by the later halachic authorities is: What is the halacha if the kohen’s vision is impaired and he cannot see the nega properly without eyeglasses? Is this considered that the kohen saw the nega, a necessary requirement to rule the person, cloth or house tamei? Or is this considered that he did not see the nega correctly, and the person, cloth or house remains tahor?

One of the later commentaries on the Mishnah, the Tiferes Yisroel, discusses this issue, and draws analogy to several areas of halacha where we find discussion whether use of an implement to view something is considered as seeing it (Boaz, Nega’im 2:4).

Waxen wane

The first comparison the Tiferes Yisroel draws is to the laws of the reading of the Torah. An early authority discusses the following question: Wax, presumably from a candle in the shul, fell on a Sefer Torah. In the course of reading the Torah on Shabbos, this wax was discovered, and the laws of Shabbos prohibit scraping off the wax. Assuming that the wax is opaque enough that one can read the words underneath, is this considered that the baal keriyah read the Sefer Torah and the mitzvah has been fulfilled, or do we consider those words to be covered and that it is impossible to observe the mitzvah with this Sefer Torah until the wax is removed? According to the first approach, they can continue with the Torah reading, whereas according to the second approach, they must put the Sefer Torah back and take out a different one to continue reading the Torah portion for this Shabbos.

The Tiferes Yisroel quotes an earlier source, the Leket Hakemach, as ruling that it is permitted to continue using this Torah by reading through the wax. The Leket Hakemach is one of several halachic works by Rav Moshe ibn Chagiz, one of the gedolei hador in Eretz Yisroel in the early eighteenth century. The sefer Leket Hakemach is unusual in that it is an anthology in which Rav ibn Chagiz often quotes the conclusion of many halachic sources without discussing the details of the issues involved. This style became popular over two hundred years later, as evidenced by such works as the Pischei Teshuvah, the Sdei Chemed and the Darchei Teshuvah. In this instance, the Leket Hakemach concludes that it is permitted to read from this Sefer Torah, provided that the baal keriyah can see the word clearly through the wax. This means that the intervening wax is not considered a chatzitzah (block or intervention) from reading the Torah. The Tiferes Yisroel concludes that there is certainly no problem for the baal keriyah or the person receiving an aliyah reading the Sefer Torah to use eyeglasses. Similarly, the Tiferes Yisroel suggests at the outset of his discussion that a kohen could rule on a nega on the basis of what he sees with his eyeglasses.

Chalitzah

A similar question is asked by an early acharon. Can one perform a chalitzah when one of the dayanim can see the procedure only with the aid of his eyeglasses? Is this considered that he witnessed the chalitzah, which is necessary for the validity of the procedure?

The Shevus Yaakov rules that it is perfectly acceptable to perform the chalitzah this way (Shu”t Shevus Yaakov 1:126).

Kiddush levanah and borei me’orei ha’eish

The Tiferes Yisroel then compares his question to an area that has more halachic discussion – whether one can recite the brochos of kiddush levanah and borei me’orei ha’eish, should one see the moon or the flame through glass.

Let’s trace this halachic discussion from its sources. The tanna’im (Mishnah Megillah 24a) dispute whether a blind man is obligated to recite the brocha that we recite every morning immediately after Borchu, which closes with the words yotzeir hame’oros, praising Hashem for providing the world with light. Rabbi Yehudah contends that since the blind cannot see sunlight, it is inappropriate for them to praise Hashem for something from which they cannot benefit. The Tanna Kamma disagrees, noting that they do benefit from light, since it enables other people to look out for them. The Gemara proceeds to tell us an anecdote about a blind man who was seen walking in the pitch-black night holding a torch. Rabbi Yosi asked him why he was holding a light, to which the man answered, “As long as the torch is in my hand, people see me and save me from pits and thorns.” Thus, although he may not be able to see the light, he certainly benefits from it. The halachic authorities conclude in accordance with the Tanna Kamma that a blind person does recite yotzeir hame’oros (Shulchan Aruch 69:2).

Borei me’orei ha’eish

The Mishnah (Brochos 51b) states that the brocha of borei me’orei ha’eish cannot be recited unless the person can benefit from the light. How much benefit is enough to recite the brocha? The Gemara (53b) states: Enough that he can distinguish by the light between two coins of different size and value.

Upon this basis, the authorities conclude that there is a difference between the brocha of yotzeir hame’oros, which a blind person recites, and the brocha of borei me’orei ha’eish (Ra’avyah, Megillah, and all subsequent authorities). As we just saw, the Gemara provided a quantitative visual criterion for the recital of this brocha, that is, the ability to use the light to discern between two coins. Reciting borei me’orei ha’eish requires not only that one can benefit from the light, but that one must actually be able to see something specific with it. This precludes the blind man from reciting this brocha: although he gains benefit from the light, he cannot fulfill the second requirement, which defines something physical that he can see.

Kiddush levanah

To review, the halachic conclusion was that the brocha of yotzeir hame’oros requires benefiting from the light, but not necessarily seeing the light whereas the brocha of borei me’orei ha’eish requires actually seeing the light and discerning something with its aid.

At this point, we need to discuss the brocha of kiddush levanah, about which the Gemara states that he does not recite a brocha unless he can differentiate by its light between two coins. Should it be compared to yotzeir hame’oros, which would imply that a blind man can recite the brocha, or should it be compared to borei me’orei ha’eish, in which case he cannot?

We find that sixteenth-century authorities dispute this question, the Maharshal ruling that a blind person may and should recite kiddush levanah, whereas his younger contemporary, Rav Yaakov Castro (known as the Maharikash), ruled that he should not. (The Maharikash was born in Egypt around 1525. As a youth he traveled to Yerushalayim, where he studied under the Maharlnach, Rabbi Levi ibn Habib, the posek hador and the rav of Jerusalem. In 1570, the Maharikash, who at that time was a dayan in Egypt, visited Tzefat, where he was a house guest of Rav Yosef Karo, and later recorded in his own writings many of the halachic practices he noticed there. Among the Maharikash’s many scholarly works, he authored footnotes to the Shulchan Aruch, sometimes referred to as the “second set” — the first set being those written by the Rema. The Maharikash named his notes on the Shulchan Aruch, Eirech Lechem, based on the posuk, Shemos 40:23, which means the bread laid out on the table of the Shulchan Aruch. The Rema’s notes were called the mapah, the tablecloth on the table. Thus, the three works describe a table perfectly set with bread on it, ready for a meal to be served.)

The Maharshal contends that there is a difference between the brocha of borei me’orei ha’eish and the brocha of kiddush levanah, writing that “the mitzvah of borei me’orei ha’eish is not dependent only on benefiting from the light, but also on being able to see… however this distinction is relative only to borei me’orei ha’eish, but regarding kiddush levanah, it seems to me that someone (who cannot see) can certainly recite the brocha, since the Gemara implies that it is sufficient if mankind in general can benefit from the moonlight” (Shu”t Maharshal #77).

The consensus of the later authorities is to follow the conclusion of the Maharshal that a blind man recites kiddush levanah, unlike the position of the Maharikash (Magen Avraham; Elya Rabbah; Pri Chadash, Biur Halacha , etc., all in Orach Chayim 426).

Kohen and nega

Notwithstanding the many proofs that seeing somethingthrough glass is valid, Tiferes Yisroel notes that some halachic sources indicate that a difference exists between the quality of viewing required for a brocha, versus that necessary for testimony. For example, he contends that someone cannot give testimony in court on the basis of something that he saw through a window. (His proof to this position is arguable, but we will not belabor the details.) Tiferes Yisroel contends that germane to testimony, we must be absolutely certain, and we must therefore be concerned that the tinting of color through glass might affect what we see. Similarly, he concludes that a kohen would not be allowed to rule on a nega on the basis of what he sees with his eyeglasses, or through any other glass.

Returning to glass

Let us return to our previous discussion about the mitzvos of kiddush levanah and borei me’orei ha’eish. May one recite borei me’orei ha’eish when the light is covered with glass? We find a dispute among earlier authorities whether one may recite borei me’orei ha’eish when one can see and use the light, but there is a pane of glass separating you from it. The Beis Yosef (Orach Chayim 428) quotes a dispute between the Orchos Chayim and the Rashba (Brochos 53b s.v. Hayesa), the Orchos Chayim forbids reciting a brocha on such a light until it is removed from inside the glass, whereas the Rashba permits it. The Shulchan Aruch (Orach Chayim 298:15) rules that one may not recite a brocha on such a light, whereas the Magen Avraham concludes that one may.

Kiddush levanah on an airplane

At this point, we can discuss the opening question of our article. “It was cloudy on motzaei Shabbos, so I was unable to be mekadeish levanah after davening in shul. Later that night, I left for the airport, and I am now sitting in my window seat, which includes a beautiful view of the new moon. May I be mekadeish levanah now, although I am indoors, and I am also obviously looking at the moon through a window?”

There are two questions here:

(1) Is it permitted to recite kiddush levanah indoors?

(2) Is it permitted to recite kiddush levanah when seeing the moon through a pane of glass?

Technically, these are two unrelated questions: one can physically see the moon when indoors by looking at it through an open skylight or window, and one can be outdoors and yet see the moon through glass.

Kiddush levanah indoors

Early authorities rule that kiddush levanah should be recited outdoors, since this demonstrates more respect (Shiltei Hagiborim). However, the consensus is that this requirement is only when it is practical to recite kiddush levanah outdoors. A person who is ill is permitted to recite kiddush levanah indoors, and the same law holds true for someone in other extenuating circumstances (Bach; Pri Chodosh).

What a pane!

Shu”t Radbaz (#341) asks an interesting question. What is the halacha if the moon is covered by a very thin cloud in a way that you can see the moon clearly, and it sheds enough light that you can use its light to tell the difference between two coins? The Radbaz rules that kiddush levanah may be recited under this circumstance. Similarly, kiddush levanah may be recited when the moon is clearly visible through glass and there is no practical way to see the moon directly, such as when you are on an airplane.

Havdalah on a lightbulb

At this point, let us examine the second of our opening questions: “I have been told that Rav Chayim Ozer, the posek hador before the War, deliberately recited the brocha of borei me’orei ha’eish on an electric light. How could he have done this when a lightbulb must be encased in glass for it to burn?”

On many occasions, I was told by my Rosh Yeshivah, Rav Yaakov Ruderman, zt”l, that Rav Chayim Ozer recited the brocha of borei me’orei ha’eish on an electric light. Rav Chayim Ozer’s reason for doing so was for people to realize that turning on an electric light on Shabbos involves a Torah prohibition of desecrating Shabbos.

Because of Rav Chayim Ozer’s efforts, today this is realized. However, in his day there were those who contended that turning on an electric switch was considered an indirect way (grama) of doing melacha and, therefore, did not involve a violation of Torah law. In order to demonstrate convincingly how strongly he felt about the issue, Rav Chayim Ozer deliberately recited the brocha of borei me’orei ha’eish on an electric light so that people would realize that turning on this light is prohibited min haTorah.

We see that the fact that the “flame” of an electric light must be encased in glass did not disturb Rav Chayim Ozer, since it can be seen clearly through the glass.

In summation

The Magen Avraham and most later authorities rule that one can fulfill the mitzvos of kiddush levanah 426:1) and borei me’orei ha’eish (298:20) when seeing the moon or the light through glass. It might be that this is insufficient for a kohen checking a nega, where there is a good possibility that he must see the nega without anything intervening.

Conclusion

Through this discussion, we see how understanding Torah properly involves deep familiarity with halachic sources that are ostensibly dealing with other topics. The rishonim referred to this as divrei Torah aniyim bimkomam va’ashirim bimkom acheir, the words of Torah are few in the discussion at hand, but vast and more explanatory in other places (see, for example, Tosafos, Kerisus 14a). Thus a posek must have a broad base of halachic knowledge.

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Lessons of Parshas Shemini

Question #1: Tanner Training

“I work as a leather tanner. Should I train for a different parnasah, so that I can make a living after Moshiach comes?”

Question #2: Amorphous Amphibians

“What is the difference between a toad and a frog?”

Question #3: Lessons of Parshas Shemini

What does either of the previous two questions have to do with this week’s parshah?

Introduction:

Since, unfortunately, our Beis Hamikdash still lies in ruins, the laws of tumah and taharah do not affect our daily lives significantly. As a result, many people do not approach the study of these laws enthusiastically, and do not pay adequate attention to the Torah readings when they are about this topic. Yet, our prayers for Moshiach to come at any moment require us to be fully knowledgeable of the laws of tumah and taharah, so that we are prepared to observe them. As the Gemara teaches, in the days of Chizkiyahu Hamelech, they searched the entire Land of Israel, from the northern to the southern tip, and could not find a single man, woman or child who was not completely conversant in every detail of the laws of tumah and taharah (Sanhedrin 94b). The situation should be similar today or even better, since we have a responsibility to comprehend the weekly parshah, and some of these laws are discussed in parshas Shemini.

Some tumah basics

Someone who becomes tamei may not enter the Beis Hamikdash or consume terumah, ma’aser sheini, bikkurim or kodoshim, foods that have sanctity.

The following passage of this week’s parshah mentions eleven different categories of the laws of tumah, which are numbered in the selection below to facilitate explaining them afterward. The Torah writes:

Among animals that walk on all fours (1), anything that walks upon its forepaws* is impure (tamei). Whoever touches the carcass of such an animal will be tamei until evening. And whoever carries their carcass must wash his clothes, and he is tamei until evening, because these animals are tamei for you.

And the following creatures that creep on the ground (2) are tamei for you: The weasel,** the mouse, and the various species of toad. Also the hedgehog, the ko’ach,*** the lizard, the snail and the mole. These are tamei to you, among all the creeping animals – whoever touches them after they are dead will be tamei until evening. And anything that falls upon them after they are dead will become tamei, whether it is a wooden vessel (3) or a garment (4) or leather (5) or sackcloth (6) – any vessel with which work is performed (7). It must be immersed in water, and then it remains tamei until evening, at which point it becomes tahor.

Furthermore, any part of them (that is, the eight tamei “creeping creatures”) that will fall inside any earthenware vessel (8), whatever is inside it will become tamei, and you shall break it (that is,the earthenware vessel). And any edible food (9) that had water touch it can become tamei. Similarly, any liquid (10) that can be drunk will become tamei, if inside such a vessel. Furthermore, anything on which part of a carcass falls will become tamei. An oven or stove (11) should be destroyed, because they are tamei, and when you use them, they will be tamei (Vayikra 11:27-35).

The Torah describes many different types of tumah (spiritual contamination), each with its own laws. Every word used in this passage has a very specific meaning. Let us explore some of the laws of the different categories mentioned.

(1) Neveilah

When discussing someone who touched a non-shechted animal carcass (neveilah), the Torah specifies that a person becomes tamei whether he touched it or carried it, but notes a halachic difference between a neveilah that was touched and one that was carried. Regarding carrying the carcass, which creates a status called tumas masa, the Torah says that he must wash his clothes, but omits this detail regarding one who touches the carcass, which is called tumas maga. We see here a difference in halachah between the person who carries a neveilah and one who touches it without moving it. One who carries a neveilah contaminates any utensils, food or beverage susceptible to tumah that he touches while he carries it. The clothes that he wears are used by the Torah as an example of any item that he touches while carrying or moving the neveilah. This tumah is called tumah be’chiburin, meaning tumah by connection. Any keilim, utensils or appliances that now become tamei will require immersion in a mikveh or spring, and then will become tahor again at the subsequent nightfall. (There is one type of utensil that is not affected by tumah be’chiburin – earthenware vessels that were touched by a person while he carried a neveilah remain tahor. Also, tumah be’chiburin of neveilah does not contaminate people – therefore, someone touching the person who is carrying the neveilah remains tahor.) However, someone who touches a neveilah without causing it to move does not contaminate something else he touches at the same time. While he himself becomes tamei and remains tamei until he immerses in a mikveh or spring and waits until nightfall, what he touches at the time remains tahor.

Tanner training

At this point, let us examine our first opening question:

“I work as a leather tanner. Should I train for a different parnasah, so that I can make a living after Moshiach comes?”

The questioner realizes that someone who tans leather will make himself tamei if he handles the carcasses of animals. However, once the flesh is removed, the hide itself is not considered neveilah and does not generate tumah (see Mishnah Chullin 117b). Even should our questioner handle neveilos, he can make himself tahor through immersion in a mikveh. It is, indeed, true that he may not enter the Beis Hamikdash or consume terumah, ma’aser sheini, bikkurim or kodoshim while he is tamei, but this does not preclude his earning his livelihood in this way.

(2) Sheretz

The Torah lists eight creeping creatures that generate tumah if one touches them after they are dead. As the Ibn Ezra already notes, we are uncertain as to the exact identity of these eight creatures. When Eliyahu arrives, he will teach us their proper identifications, so that we can properly observe the laws. According to the translation that I provided above, which is based on Rashi and other traditional commentaries, the eight include an interesting mixture of small mammals (mostly rodents), reptiles, amphibians and mollusks. All usually lie close to the ground, and most are small. However, if the ko’ach is identified correctly as a monitor, it is the largest of the lizards and can grow as long as ten feet.

If our translation is correct, other small creatures – such as snakes, frogs, insects and other rodents – are not included under the heading of tamei sheratzim. Although it may not seem aesthetically pleasing to touch live creatures or dead insects, rodents and other small animals, you do not become tamei from touching them. I recommend washing your hands for hygienic reasons, but maintaining hygiene and becoming tamei are unrelated concepts.

By the way, the word tzav, used in Modern Hebrew for turtle, is one of the sheratzim, but means toad, according to Rashi. I have no idea who decided to use this word for turtle, but it is not consistent with halachic authorities. There is no reason to assume that a dead turtle makes one tamei.

Amorphous amphibians

At this point, let us refer back to one of our opening questions: “What is the difference between a toad and a frog?”

A zoologist will note several differences, but this is a halachic article. According to Rashi, a toad is one of the eight sheratzim that are tamei, and a frog is not (Taharos 5:1, 4).

Laws of sheratzim

Regarding the tumah of sheratzim, the Torah states that one who touches them becomes tamei, but it mentions nothing about the person’s clothing requiring immersion, nor does it state that someone becomes tamei when he carries them. This is because a sheretz makes someone tamei only if he touches it, and not if he moves it without touching. Furthermore, his clothing and anything else he touches while touching the sheretz, donot become tamei, unless they are in direct physical contact with the sheretz.

Toad vs. frog

Why did the Torah declare only these eight creatures to be tamei, but no others?

This is a question that we can ask, but probably not answer, other than to accept the gezeiras hakasuv, the declaration of the Torah, and observe it as Hashem’s will. Although we endeavor to explain the reasons for our commandments, we realize that we can never assume that we understand the reason for a mitzvah. We explore possible reasons for a mitzvah in order to enhance our experience when we observe it. We do this when we can. However, I have not found any commentary that endeavors to explain what it is about these eight specific creeping creatures, but no others, that generates tumah.

I will be continuing this topic in my next article.

Conclusion

This article has served as an introduction to some of the basic rules of tumah and taharah relating to neveilah and sheratzim. We hope and pray to be able to observe all of these laws soon.

* This translation follows Malbim.

** With the exception of the ko’ach, our translation follows Rashi’s commentary.

*** Most commentators identify this either with the chameleon or with the monitor, both of which are varieties of lizard.

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Erev Pesach on Shabbos Guide

This year, the first day of Pesach falls on Sunday, which means that Erev Pesach falls on Shabbos. This changes many Pesach observances. Below is a simplified guide to the practices of Erev Pesach that falls on Shabbos.

Photo by alex ringer from FreeImages

Thursday

Since Erev Pesach is Shabbos, the fast of Taanis Bechoros is pushed earlier, to Thursday. A bechor or the father of a minor bechor is obligated to fast on Thursday, but he can discharge his obligation by making or attending a siyum. If attending a siyum is not a viable option because of COVID safety concerns, please consult with your LOR (=local Orthodox rabbi) as to whether you can attend a siyum online.

Thursday night

Bedikas Chometz

Regular bedikas chometz is performed with a bracha. After completing the bedikah, one recites the first bitul.

Friday

Friday morning davening is regular, without tachanun, because it is the month of Nisan. Although, on Erev Pesach, Ashkenazim do not say the chapters of mizmor lesodah and la’me’natzei’ach in shacharis, they do say these parts in the Friday davening, since it is not Erev Pesach. Since Sefardim do not recite la’me’natzei’ach on any day when tachanun is not recited, they do not recite it the entire month of Nisan.

Selling the Chometz

Reminder: make sure to have already attended to the sale of your chometz.

Burning the Chometz

We burn chometz on Friday morning, even though one may own chometz until Shabbos morning. Place the chometz that is to be eaten on Shabbos in a secure place and make a mental note where that chometz is located. We do not recite the second bitul after burning the chometz on Friday morning, but, instead, we recite it on Shabbos morning, when we finish eating the chometz.

Doing Melacha on Erev Shabbos

Although it is prohibited to perform certain melacha-work during the afternoon of Erev Pesach, and haircuts and shaving must be performed in the morning, there is no limitation on doing melacha-work on this Friday any different from any other Erev Shabbos, because it is not Erev Pesach.

Eruvei Chatzeiros

The minhag is to renew an eruv chatzeiros with neighbors on Erev Pesach. This year, it should be renewed on Erev Shabbos.

Matzoh baking

Those who are accustomed to bake matzohs on the afternoon of erev Pesach usually bake them in the afternoon of this Erev Shabbos, even though it is still permitted to eat chometz.

Seder preparations

Ideally, all of the seder preparations should be performed on Friday, including roasting the zero’a (shankbone) and the egg, preparing the saltwater, making the charoses, checking and washing the marror, grinding the horseradish. Make sure to open the boxes of matzos and bottles of wine, as one would before every Shabbos. Although this is unusual in today’s world, if you need to separate challah from your matzoh, remember to do so before Shabbos. If you forgot to do so before Shabbos, what to do if you first discover the problem the first night of Pesach will depend on whether the matzoh was prepared in Eretz Yisroel or in chutz la’aretz. Briefly explained, although it is prohibited to separate challah on Shabbos or on Yom Tov (unless the dough was mixed on Yom Tov), someone who prepared dough in chutz la’aretz and forgot to separate challah may put aside some of the product (in this case, some of the matzoh), eat the rest of the matzoh on seder night, and separate challah from the leftovers after Yom Tov (in this case, on Chol Hamo’eid). However, someone living in Eretz Yisroel cannot use this solution, and will have to find other matzoh to use for the seder.

Shabbos Food Preparations

If you are preparing chometz-dik food for your Shabbos meals, do not make sticky chometzdik food that will adhere to your pots or plates. (Presumably, most people will prepare Pesachdik food for all meals.)

Shabbos Candles

Be careful not to place the Shabbos candelabra on the tablecloth on which chometz will be served, since it will not be possible to remove the candles in order to remove the tablecloth.

Planning three meals

Friday night meal

One should kindle the Shabbos lights near where one intends to eat the Friday night meal.

One is required to recite hamotzi at the first two Shabbos meals, using two “breads” (lechem mishneh).

It is permissible to eat chometz hamotzi in one part of the house and the Pesachdik meal in another, since his intent when washing and making hamotzi was to eat his meal in this way. He should return to where he made hamotzi for bensching. Each person should eat at least one kebeitzah of bread (egg size) to fulfill the mitzvah of seudas Shabbos and justify making netilas yadayim with a bracha. (Since one may not weigh on Shabbos, one who intends to weigh his chometz, in order to determine that he is eating the correct amount, should do so before Shabbos.)

Egg or grape matzoh, or matzoh cookies (all of these qualify as matzoh ashirah) may be used for lechem mishneh at these meals. According to many authorities, Ashkenazim should eat as much matzoh ashirah as one would eat bread with this type of a meal (i.e., certainly more than the egg size mentioned above). Sefardim should eat four egg sizes of the matzoh ashirah. Please note that Rav Moshe Feinstein was more lenient than the above approaches, ruling that as long as the kevi’us seudah is on the matzoh ashirah, which presumably requires eating at least a kebeitzah, that the brocha is hamotzi.

Note that someone who has the custom to refrain from eating matzoh after Purim or Rosh Chodesh may still eat matzoh ashirah.

If using chometz plates to serve a hot meal that was cooked in a Pesachdik pot, one should pour the hot food into a Pesachdik plate or platter before pouring it into the chometz-dik plates. (Presumably, most people will be serving the meals on disposable dishes.)

Shabbos Morning

Daven early. One is required to eat one meal in the morning. There is a recommendation (hiddur) to eat two meals on the morning of Erev Pesach, separated by a brief interruption.

For those who wish to eat two meals in the morning, I suggest:

Immediately after davening, make kiddush, hamotzi, eat a piece of fish, and bensch.

Take a break, and begin the next meal with enough time to finish eating before the latest time to eat chometz. Some poskim prefer that a fleishig course be eaten with the first morning meal, before breaking.

Bitul chometz

After completing the eating of the chometz, dispose of the remaining chometz into the toilet (taking care to crumble it into small pieces and only flush a small amount at one time) or into a communal garbage bin (if it is within the eruv), but do not place it inside your own garbage can. Then recite the second bitul chometz. One may continue eating the meal without new brachos, notwithstanding that he may no longer eat chometz.

Shabbos afternoon

Since most people follow the opinion of davening mincha before seudah shelishis, one should daven mincha early.

Seudah shelishis

In the early afternoon, one may serve a heavy Pesach-dik meal (meat, potatoes, fruits, vegetables, etc.) without any hamotzi at all. If you eat “gebroktz,” it is recommended to eat kneidlich at this meal. According to the Mishnah Berurah, it is permitted and recommended to eat kneidlich, even if you have a minhag not to eat matzoh from Purim or from Rosh Chodesh and there is no halachic problem with eating them on Erev Pesach.

Many poskim recommend that Sefardim serve matzoh ashirah at seudah shelishis. These matzos require netilas yadayim. The bracha before eating these matzos is hamotzi, and they require bensching, afterward.

If one eats cooked matzoh, kneidlich or matzoh ashirah for seudah shelishis, one should complete eating seudah shelishis before the “tenth hour,” which is a half hour before “mincha ketana,” or three quarters of the day. Some authorities contend that even those who eat only fruit and vegetables this Shabbos for seudah shelishis should eat before the tenth hour. One may eat a small quantity of fruit or vegetables after this point.

It is advisable to take a nap Shabbos afternoon, but one should not mention that he is taking a nap in order to be awake for the seder. (Some poskim consider this statement to be preparing on Shabbos for after Shabbos.)

Most poskim contend that one should not move one’s seder matzos before Shabbos is over. Since many people bring their own matzoh to the seder, if they are eating at someone else’s house, they should not carry these matzos until Shabbos is over. Also, remember not to begin preparations for the seder until Shabbos is over and after saying “Baruch Hamavdil bein kodesh lekodesh.”

Chag Kosher vesomay’ach!!

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Selling Chometz before Pesach

Photo by Deb Collins from FreeImages

Question #1:

“A room is rented to a non-Jew, because it contains the chometz that was sold to him as part of the mechiras chometz. May I enter the room in order to remove something that was not included in the sale?”

Question #2:

“On an occasional emergency basis, my daughter requires use of a medicine that is not listed as being chometz-free. Should we include this medicine with what we sell to the non-Jew, and if we do, what should we do if she needs it during Pesach?”

Answer:

As we all know, a Jew may not own chometz on Pesach; this is included in the Torah’s double prohibition, bal yira’eh and bal yimatzei. Furthermore, the Torah commanded us with a mitzvas aseh, a positive mitzvah, to destroy any chometz left in our possession after midday on Erev Pesach. According to most poskim, these prohibitions apply both to chometz gamur (pure chometz) and to ta’aroves chometz (chometz mixed into another product). In addition, Chazal required us to search our homes and property the night before Pesach for chometz that we may have forgotten, the mitzvah we refer to as bedikas chometz. According to many authorities, this requirement of searching for chometz is, at times, required min haTorah, and certainly fulfills a Torah requirement.

In addition, Chazal created a penalty on a Jew who owned chometz during Pesach in violation of bal yira’eh and bal yimatzei, prohibiting this chometz from use forever, referring to the product involved as chometz she’avar alav haPesach. I will note that this financial incentive has often proved extremely effective in convincing marginally observant Jews to perform mechiras chometz.

Although a Jew may not own chometz on Pesach, there is nothing wrong with his selling his chometz to a non-Jew before it becomes prohibited. The Mishnah states explicitly that one may sell chometz to a non-Jew before Pesach. However, the Mishnah does not discuss whether I can sell my chometz and leave it in my home, knowing that the non-Jew does not intend to keep or use it. To be more specific, does the Jew’s expectation that he will receive the chometz back invalidate the sale? Also, does the non-Jew really intend to buy the chometz, or does he think that this is a charade, and that he is not really purchasing it? This would, of course, undermine the sale.

The Tosefta (Pesachim 2:6) provides us with background to these questions:

A Jew is travelling by ship and has with him chometz that he needs to dispose of before Pesach. However, the Jew would like the chometz back after Pesach, because there is a dearth of kosher food available. Apparently, the cruise liner being described by the Tosefta did not have a supervised kosher kitchen, nor any supervised airline dinners on board.

The Tosefta rules that the Jew may sell the chometz to a non-Jew before Pesach, and then purchase it back afterwards. Alternatively, the Jew may give the chometz to the non-Jew as a present, provided no conditions are attached. The non-Jew may then return the present after Pesach. Thus, we see that one may sell or give away chometz to a non-Jew and expect it back, without violating any halachos, provided that the agreement does not require the non-Jew to return it or sell it back.

In contemporary times, people usually do not undertake to sell their chometz themselves, but instead appoint a rav to sell the chometz for them. The reason for this is that the  non-Jew does not take the chometz with him; we leave it in our houses. Since this may have the appearance of a charade, the sale must be performed in a way that halacha recognizes as a valid sale. Since these laws are very detailed and complicated, it is better that a lay person not handle the arrangements for mechiras chometz by himself.

When I was in the first year of a previous rabbinical position, I realized shortly before Pesach that one of my shul members, who was an attorney by training, had not yet arranged sale of his chometz. I called him, asking him if this was an oversight. He answered me that he always arranged his own mechiras chometz by drawing up a contract with a non-Jewish business associate.

Halachically selling chometz via a written contract without any other maasei kinyan does not make the chometz the halachic property of the non-Jew. It might still work because of dina demalchusa dina or similar reasons too complex to explain in this article. The bottom line is that according to many halachic opinions, our lawyer violated the two Torah prohibitions of bal yira’eh and bal yimatzei by owning chometz on Pesach, and also the positive mitzvas aseih requiring that we destroy or otherwise cease our ownership of chometz before Pesach. Merely drawing up a contract with a non-Jew is certainly not the way to sell your chometz and be able to leave it in your house over Pesach. Be’dei’evid, after the fact, this sale would probably be considered valid enough that his chometz would not be prohibited as chometz she’avar alav haPesach. Unfortunately, I did not have a relationship with this attorney to explain to him why his plan was not the best approach to the problem. In other words, if you are an attorney trained in American law, realize that you may not be an expert in Anglo-Saxon common law, Chinese law, Napoleonic Code, the codes of Hammurabi, or halacha, even though we can correctly call halacha “Talmudic Law.”

One of the standard methods we use of guaranteeing that the sale of our chometz to the non-Jew is fully valid is to rent to him the area where the chometz is stored. Thus, we return to our first question as to whether I am permitted to enter that area for my own purposes.

There is also another concern involved in entering the area where the sold chometz is located: The Gemara states that it is permitted to have a non-Jew’s chometz in one’s house on Pesach, provided that a barrier the height of ten tefachim (about thirty-seven inches) is constructed around the chometz, presumably to guarantee that no one mistakenly eats it. So, we have two concerns:

(1)   Does entering the area invalidate the sale?

(2)   Is it prohibited to enter the area because of concern that I might eat the chometz?

Regarding the first question, whether entering the rented area violates the sale agreement, several authorities rule that it does not (see Chok Yaakov and Machatzis Hashekel, Orach Chayim 472:1). Regarding the second issue, whether entering the area is prohibited because of concern that you might eat the chometz, this question is raised by the halachic authorities (see commentaries to Shulchan Aruch, Orach Chayim 448:3). Most authorities conclude that it is permitted to enter the area for a brief period of time in order to remove something that was forgotten there (see Shu’t Nimla Tal, Orach Chayim, #167).

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

“On an occasional emergency basis, my daughter requires use of a medicine that is not listed as being chometz-free. Should we include this medicine with what we sell to the non-Jew, and if we do, what should we do if she needs it during Pesach?”

Most mechiras chometz contracts that I have seen allow for this. They specify that if someone should need a medicine that is sold, the non-Jew permits the use of the medicine, over which he maintains ownership, but that he will be compensated after Pesach for what was used. Since this provision does not exist in all mechiras chometz contracts, I suggest that someone who foresees that they may have this issue should clarify it in advance with the rav who is facilitating the mechiras chometz.

There is another basis to be lenient. Medicines generally do not have a good taste, except for medicines meant for children. Thus, most medicines are inedible, and, according to most poskim,not a chometz problem. Let me explain:

The Gemara states: One does not get punished for violating any prohibitions of the Torah unless he consumes them the way they are usually eaten (Pesachim 24b). It is not prohibited min hatorah to eat or drink a prohibited substance that is now inedible, either because it became spoiled or because a bitter ingredient was introduced (Rambam, Hilchos Yesodei Hatorah 5:8).

Can chometz change its stripes so that it is no longer considered chometz? The answer is that it can lose its status as chometz – when it is decomposed or otherwise ruined to a point that it is nifsal mei’achilas kelev, a dog will no longer eat it (see Pesachim 45b). Since it no longer can be used for either food or feed, it loses its status as chometz that one is prohibited from owning and using on Pesach (Tosafos ad locum; Shulchan Aruch, Orach Chayim 442:9; cf. Rashi, Pesachim op cit., whose position is more lenient).

However, there is a question based on a passage of Gemara that states that chometz burnt before Pesach may be used on Pesach (Pesachim 21b). The rishonim raise the following question: Why does the Gemara say that one may benefit from the burnt chometz, but does not permit eating it, since it is no longer considered food and therefore not included under the prohibition of chometz?

There are two major approaches to answer this question, which result in a dispute in practical halachah. According to the Ran, since the burning rendered the chometz inedible even by an animal, one may even eat it, even though the Gemara does not mention this. This approach seems to have the support of the Rambam (Yesodei Hatorah 5:8), who permits consuming a prohibited beverage after a bitter ingredient was added to it.

However, the Rosh contends that the rabbis prohibited one from eating the inedible chometz because of a principle called achshevei, which means that by eating it one is treating it as food. Most later authorities follow the Rosh’s approach, prohibiting someone from ingesting inedible chometz because of this rabbinic prohibition (e.g., Terumas Hadeshen #129; Taz, Orach Chayim 442:8; Magen Avraham 442:15; Shaagas Aryeh #75).

Does oral intake of a chometz-based medicine qualify as achshevei? If it does, then it is prohibited to ingest inedible chometz even as medicine, unless the situation is life-threatening.

We find a dispute among later authorities whether ingesting medicine is prohibited because of achshevei. We can categorize the positions into three basic approaches:

1. Taking medicine is considered achshevei.

The Shaagas Aryeh (#75) rules that ingesting medicine is prohibited miderabbanan because of the rule of achshevei.

2. Taking medicine is not achshevei.

Rav Moshe Feinstein maintains that medicine never qualifies as achshevei. His reason is that people take even very bitter items for their medicinal value; thus taking something as a medicine does not demonstrate that one views it as food.

3. It depends on why the chometz is there.

The Chazon Ish advocates a compromise position. Although he agrees with the Shaagas Aryeh that consuming something as a medicine qualifies as achshevei, he contends that achshevei applies only to the active ingredient – the item for which one is taking the medicine. However, he maintains that achshevei does not apply to the excipient ingredients, those added so that the medicine can be made into a tablet.

According to Rav Moshe, as long as the medicine is foul-tasting, there is no need to check if it contains chometz. The chometz is nifsal mei’achilas kelev, and the consumption of medicine does not qualify as achshevei. The only need for a medicine list is when the medicine is pleasant tasting.

On the other hand, according to the Shaagas Aryeh, barring a situation of pikuach nefesh, one may not ingest a medicine containing chometz on Pesach, and it is important to research whether it contains chometz. According to the Chazon Ish, this is a concern only when the chometz is the active ingredient, which is rare in a tablet medicine.

A lay person should not decide on his or her own not to take a necessary medicine without consulting with a rav or posek, and, of course, their physician.

Even according to the Shaagas Aryeh, there is nothing wrong with owning or even benefiting from these medicines on Pesach – the only prohibition would be to ingest them. Thus, a Jewish-owned pharmacy is not required to remove from its shelves foul-tasting medicines that are on the prohibited chometz lists.

Regardless as to which approach one follows, one must be absolutely careful not to look down on someone who follows a different approach. In any situation such as this, this attitude will unfortunately cause great harm, since it can lead to feelings of conceit. Remember that the prohibition of chometz is to sensitize ourselves greater to concerns about conceit. It would be terribly ironic if an attempt at being more machmir in the halachic arena would cause someone to become conceited, the exact opposite of the intent of the mitzvah.

According to Kabbalah, searching for chometz is symbolic of searching internally to locate and remove our own arrogant selves. As we go through the mitzvos of cleaning the house, searching, burning, and selling the chometz, we should also try to focus on the spiritual side of this search and destroy mission.

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The Pesach Sleuth

Photo by Matus Laco from FreeImages

Imagine walking into a factory, noticing the ceiling, 25 feet overhead, lined with rows upon rows of similar-looking pipes. “How am I possibly supposed to know what goes through these pipes? How can I possibly check if they have been cleaned properly, and how can I possibly kasher them?”

When we purchase products for Pesach, we look for a hechsher that we respect, and we rely on that hechsher to make sure everything is done properly. Fortunately, an experienced mashgiach will know how to trace all those pipes and figure out what each one contains, although it will take him time to do so. Yet, most of us do not know what it is like to be in a factory that is supervising a Pesach-dik production run, nor do we know what it is like to be checking a factory to see if it is maintaining its kashrus program. We also don’t really know why one hechsher is acceptable and another is not. Most people apply the “What do the neighbors use?” system, or, more accurately, “What does the chevrah use?” or “Do bnei Torah eat from that hechsher?” approach. Although one article cannot answer most of these questions, it can provide some direction and background.

Pesach-dik ketchup

Let me begin with a typical kosher-for-Pesach story. Ketchup, a common North American household product that, in some households, is an irreplaceable staple, is a relatively simple product containing tomato paste, water, corn sweetener, vinegar, salt, spices and flavoring. Several of these ingredients require replacement for a Pesach-dik product. Corn sweetener is kitniyos, and would require replacing, probably with a kosher-lePesach sugar made from either cane or beets. Pure spices ground for industrial use should be fine, but spice extracts or oleoresins will require more research. The water should not present any problem, and the tomato paste and salt used for commercial production should also be fine, but it always pays for the hechsher to double check the manufacturer.

Both the vinegar and the flavoring could contain chometz, and almost certainly contain kitniyos if they did not come from a specially-made Pesach run. Let us see how these sensitive ingredients will be handled:

Vinegar

Regular vinegar, usually called white vinegar, is manufactured from alcohol processed with yeast, vinegar food, and perhaps other raw materials, until the alcohol turns to vinegar. Every one of these ingredients can involve a potential chometz issue: Alcohol is commonly produced from grain. Vinegar food may alsoinclude chometz ingredients. Kosher lePesach vinegar would require that the alcohol, the yeast and the vinegar food all be specially made from a non-chometz, non-kitniyos source. Assuming that the hechsher certifying the production of the ketchup is not the one that certified the vinegar, the rabbonim or poskim of the hechsher on the ketchup will decide which hechsher for Pesach-dik vinegar they will accept.

In theory, kosher lePesach vinegar could be  produced in a much easier way with virtually no halachic complications. Chemically, white vinegar is a solution of acetic acid and water. Pure acetic acid can be produced synthetically, and, therefore, a product identical to vinegar can be produced by simply mixing glacial acetic acid and water, which would be a very easy item to produce, simple to supervise ,and less expensive than kosher-lePesach vinegar.

So why not?

If it is much easier to produce kosher-lePesach vinegar this way, why is it not done? The answer is that it is illegal in the United States to call this product “vinegar,” notwithstanding that it is perfectly safe to use and will accomplish whatever the “vinegar” in your product will. In the United States, this ingredient must be labeled as “diluted glacial acetic acid” or something similar, and companies are concerned that customers will not purchase a product with this ingredient listed on the label.

Vinegar in the United States must be produced by the fermentation of alcohol, and the alcohol used for this production must also be fermented and distilled from sugars or starches. Nevertheless, there are many countries of the world where it is perfectly legal to use synthetically produced vinegar in food production and to label it as “vinegar.”

Flavoring

Ketchup requires the addition of herbs, spices or flavoring. The size of flavor-producing companies varies in as great a range as you can imagine. I have seen flavor companies that are quite literally mom-and-pop shops, and I have also been inside flavor factories the size of a small city. Some flavor companies manage without any major sophisticated equipment, whereas others own hundreds of production machines that each cost in the millions of dollars.

Spray towers

Here is a very practical example: Many products are dried today in a massive piece of equipment called a spray dryer or spray tower. The purpose of this piece of equipment, usually about the height of a three-story building, is to convert a liquid product into a powder. It does so by pumping the liquid until it is dropped through the top of the spray tower. In the tower, which is usually gas-fired, very hot air, usually about 500 degrees Fahrenheit, is forced along the inside walls of the tower, and the liquid product is dropped through the middle. The temperature is hot enough so that all the liquid evaporates, leaving behind a powder that drops to the bottom of the spray tower, where it is boxed or bagged.

Many thousands of spray towers are used in the United States alone. Possibly the most frequent use is to powder skim milk, which is highly perishable, into nonfat dry milk, which occupies a fraction of the space of the liquid product, and, if kept dry, has an indefinite shelf life without any refrigeration, thus making it very easy to store and ship.

Assuming that this spray tower is used only for milk, the major question that will occur is how to kasher it for a cholov Yisroel production. There are many halachic issues here, including that a spray tower physically cannot be filled with water and brought to a boil, which constitutes hag’alah, the most common way of kashering. Furthermore, it is unlikely that this method suffices to kasher the tower, since the absorption into the walls of the spray tower is without liquid.

Another option is to kasher the tower by use of a flame thrower, basically a larger form of a blow torch.

On the other hand, there are halachic authorities who contend that the spray dryer does not even require kashering, since the product is not supposed to touch its walls. Because of the tremendous heat that absorbs into the stainless steel walls of the dryer, product that touches them burns, and will probably pass distaste, nosein taam lifgam, into the final product. Some of these last-quoted authorities contend that a spray tower does not require kashering.

There are also companies that have contract spray-dry equipment. This means that the spray tower is not constantly in use for their product,and, not wanting to leave a very expensive piece of equipment idle,  they will spray dry other products during the “down” time, when they are not producing their own products. For example, I have seen wine powder, powdered meat extract, medicinal items, and even blood, spray dried on equipment that was also at times used for kosher supervised products.

At this point, let us return to our special kosher-for-Pesach ketchup production. A flavor whose components were spray dried, which is a fairly common procedure, would require researching what else was produced on this spray dryer, or attempting to kasher the spray dryer. All of these complicate the research involved in producing our kosher-lePesach ketchup.

To resolve all these potential complications, the flavors used for the production of this kosher-lePesach ketchup were ordered from a small manufacturer. The order was to use only pure essential oils that would be extracted by pressure — in other words, oil that is squeezed out of the spice source in what is called a “cold press” operation and without any extracting aids. Many essential oils are extracted using alcohols such as ethanol or glycerin, which could compromise the kashrus of the product.

Of course, a knowledgeable field representative was dispatched to oversee that the flavor company indeed followed the instructions and used only cold press essential oils.  The flavor company blended together these liquid oils and then added a significant amount of salt to the product. The reason for the addition of the salt was to dry out the finished spice so that it could be easily shipped and stored. From a kashrus perspective, this was certainly a far better alternative to using a spray-dried product and kashering the spray dryer.

Now our hechsher has successfully located all the ingredients and overseen the production of all the raw materials for the kosher-lePesach ketchup. The next step is to send a knowledgeable mashgiach to the production facility where the ketchup is to be manufactured, to ascertain how that equipment will be kashered prior to the Pesach run, and to clarify with the company its production schedule prior to the dates when the equipment will be kashered and the Pesach product manufactured. He also needs to check whether other products are being made in the facility, or a nearby facility, that uses the same heating system to produce chometz products.

And this is for a relatively simple product.

Having shown how a relatively simple Pesach-dik product is made, I will shift from the simple to what is possibly the most complicated: the kashering of hotels for Pesach, which has become a colossal international business. A glance at any frum newspaper includes advertisements marketing opportunities to spend Pesach on any continent, always only with non-gebrochtz, shemurah matzos, cholov Yisroel, and glatt kosher, under a rav’s strict supervision, with several prominent English speakers as scholars-in-residence, babysitting provided during the lectures, and many sightseeing activities available for Chol Hamo’eid. Yet, individuals interested in experiencing Yom Tov this way should be aware that kashering a hotel for Pesach is a mammoth and difficult process. It is even more difficult to do when the entire hotel is not being kashered for Pesach, when the hotel’s regular kitchen staff are used, or when the chef and sous-chefs are not halachically observant themselves.

By the way, travel tours create the most difficult issues regarding kashrus supervision. Many hechsherim will simply not supervise them because of the complications involved with traveling to different places and using products that are available locally. These issues become even more complicated when it comes to Pesach supervision.

Aside from the many nightmares I have heard regarding Pesach hotel hechsherim, I will share with you just one nightmare story of which I have firsthand knowledge. At one point in my career, I was in charge of the hechsherim in an area that encompassed a well-known tourist area. Simply put, if anything was supervised kosher in our area, I knew about it. There indeed were several reliably kosher tours, some of whom used our kashrus organization to supervise their activities and some who did not, but, it seemed to me, still maintained a fairly respectable kashrus standard.

Once, I saw an advertisement in the Anglo-Jewish press for a “glatt kosher tour” through our area. Since none of the tour companies with which I was familiar was involved, I called the number listed for reservations and inquired who was overseeing their kashrus in the area. The woman who answered the phone dutifully notified me that “Jim Klein oversees all food production and kashrus arrangements in that area.” I knew Jim well. Not only was he completely non-observant – he was married to a non-Jewish woman! Yet, the tour was advertized as glatt kosher, chassidisha shechitah. I have no idea if it was chassidisha shechitah, but it was certainly not glatt kosher, and halachically was not kosher at all!

For sure, we know not to use anything “supervised” by Jim. Can we eat something supervised by Yossel? The answer is that we rely on a hechsher that uses yir’ei shamayim personnel who are knowledgeable both in halacha and in the technical aspects of modern kashrus. Particularly, when we decide which Pesach products we allow into our home to enhance our simchas Yom Tov, we use only hechsherim that impress us with their expertise and their concern about the important role they play in our lives.

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