How Does Someone Convert to Judaism?

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When our ancestors accepted responsibility to observe the Torah, they did so by performing bris milah, immersing themselves in a mikveh, and offering korbanos. In the same way, a non-Jew who chooses to join the Jewish people is entering the same covenant and must follow a similar procedure (Gemara Kerisus 9a).

The privilege of becoming a ger tzedek requires very exact and exacting guidelines. On a technical level, the ger is accepting responsibility to perform mitzvos. Through the geirus procedure, he creates an obligation upon himself to observe mitzvos (Birchas Shmuel, Kiddushin #15).

DEFINITION OF A JEW

To the non-Jewish or non-observant world, the definition of a Jew is based on sociological criteria. But to the Torah Jew, the definition of a Jew is someone who is a member of a people who are obligated to fulfill all of the Torah’s commandments. For this reason, it is axiomatic that no one can become Jewish without first accepting the responsibility to observe mitzvos (kabbalas mitzvos). This concept, so obvious to the Torah Jew, is almost never appreciated by the non-observant. Someone who does not (yet) observe mitzvos himself usually does not appreciate why observing mitzvos is imperative to becoming Jewish. This is why a not-yet-observant Jew often finds our requirements for giyur to be “unrealistic” or even “intolerant.” However in true reality, attempting to bend the Torah’s rules reflects an intolerance, or more exactly, a lack of understanding. The Torah Jew realizes that the basic requirement for becoming a Jew is accepting Hashem’s commandments, since a Jew is by definition someone who is bound by the Torah.

DISCOURAGE CONVERTS

As we all know, when someone requests to be converted to Judaism, we discourage him. As the Gemara (Yevamos 47a) says, if a potential convert comes, we ask him, “Why do you want to convert? Don’t you know that Jews are persecuted and dishonored? Constant suffering is their lot! Why do you want to join such a people?”

Why do we discourage a sincere non-Jew from joining Jewish ranks? Shouldn’t we encourage someone to undertake such a noble endeavor!

The reason is that even if the potential convert is very sincerely motivated, we still want to ascertain that he or she can persevere to keep the mitzvos even under adversity. Although we can never be certain what the future brings, by making the path to conversion difficult we are helping the potential convert who might later regret his conversion when the going gets hard. Because of this rationale, some batei din deliberately make it difficult for a potential convert as a method of discouraging him.

I have used a different method of discouragement, by informing potential converts of the seven mitzvos bnei Noach. In so doing, I point out that they can merit olam haba without becoming obligated to keep all the Torah’s mitzvos. In this way, I hope to make them responsible moral non-Jews without their becoming Jewish. As the Gemara explains, we tell him, “Until now you received no punishment if you failed to keep kosher. There was no punishment if you failed to observe Shabbos. If you become Jewish, you will receive very severe punishments for not keeping kosher or Shabbos!” (Yevamos 47a).

I once met a woman who was enthusiastically interested in becoming Jewish. Although she was living in a town with no Jewish community – she was already keeping a kosher home!

After I explained the mitzvos of bnei Noach to her, she insisted that this was not enough for her. She wanted to be fully Jewish.

Because of her enthusiasm, I expected to hear from her again. I was wrong. I never heard from her again. It seems that her tremendous enthusiasm petered out. This is exactly what Chazal were concerned about. Therefore they told us to make it difficult for someone to become Jewish and see whether his or her commitment survives adversity. It was better that this woman’s enthusiasm waned before she became Jewish than after she became Jewish and had no way out.
The following story from my personal experience is unfortunately very common. A gentile woman, eager to marry an observant Jewish man, agreed to fulfill all the mitzvos as a requirement for her conversion. (As we will point out shortly, this is not a recommended procedure.) Although she seemed initially very excited about observing mitzvos, with time she began to lose interest. In the end, she ended up giving up observance completely. The unfortunate result is that she is now a chotei Yisrael (a Jew who sins).

MOTIVATION FOR CONVERTING

We must ascertain that the proposed convert wants to become Jewish for the correct reasons. If we discern or suspect that there is an ulterior reason to convert, we do not accept the potential convert even if he is committed to observing all the mitzvos.

For this reason converts are not accepted at times when there is political, financial, or social gain in being Jewish. For example, no converts were accepted in the days of Mordechai and Esther, nor in the times of Dovid and Shlomoh, nor will geirim be accepted in the era of the Moshiach. During such times, we suspect that the convert is somewhat motivated by the financial or political advantages in being Jewish (Gemara Yevamos 24b). This applies even if we are certain that they will observe all the mitzvos.

Despite this rule, unlearned Jews created “batei din” during the reign of Dovid HaMelech and accepted converts against the wishes of the gedolim (Rambam, Hilchos Issurei Biyah 13:15).

The Rambam explains that the “non-Jewish” wives that Shlomoh married were really insincere converts. In his words, “In the days of Shlomoh converts were not accepted by the official batei din…however Shlomoh converted women and married them…and it was known that they converted for ulterior reasons and not through the official batei din. For this reason, the pasuk treats them as non-Jews…furthermore the end bears out that they worshipped idols and built altars to them” (Rambam, Hilchos Issurei Biyah 13:15-16).

Because of this rule, we do not accept someone who is converting because he or she wants to marry someone who is Jewish, even if the convert is absolutely willing to observe all the mitzvos (Gemara Yevamos 24b). I have seen numerous instances of non-Jews who converted primarily for marriage and who agreed to keep all the mitzvos at the time of the conversion. Even in the instances where mitzvos were indeed observed, I have seen very few situations where mitzvos were still being observed a few years (or even months) later.

GEIRUS WITH IMPROPER MOTIVATION

What is the halachic status of someone who went through the geirus process for the wrong reasons, such as they converted because they wanted to marry someone?

If the convert followed all the procedures including full acceptance of all the mitzvos, the conversion is valid even though we disapprove of what was done. If the convert remains faithful to Jewish observance, we will treat him with all the respect due to a Jew. However, before reaching a decision on his status, the beis din waits a while to see whether the convert is indeed fully committed to living a Jewish life (Rambam, Issurei Biyah 13:15-18).

However, someone who is not committed to mitzvah observance and just goes through the procedures has not become Jewish at all.

Jim was interested in “converting to Judaism” because his wife was Jewish and not because he was interested in observing mitzvos. At first he went to a Rav who explained that he must observe all the mitzvos, and certainly they must live within the frum community. This was not what Jim had in mind, so he went shopping for a “rabbi” who would meet his standards. Is there any validity to this conversion?

CONVERSION PROCESS

How does a non-Jew become Jewish? As mentioned above, Klal Yisrael joined Hashem’s covenant with three steps: bris milah (for males), immersion in a mikveh, and offering a korban (Gemara Krisus 9a). Since no korbanos are brought today, the convert becomes a ger without fulfilling this mitzvah. (We derive from a pasuk that geirim are accepted even in generations that do not have a Beis HaMikdash.) However, when the Beis HaMikdash is iy”h rebuilt, every ger will be required to offer a korban olah which is completely burnt on the mizbayach (Rambam, Hilchos Issurei Biyah 13:5).

Besides these three steps, the convert must accept all the mitzvos, just as the Jews accepted to keep all the mitzvos.

Preferably, each step in the geirus procedure should be witnessed by a beis din. Some poskim contend that the bris and tevilah are valid even if not witnessed by a beis din. But all poskim agree that if the kabbalas (accepting) mitzvos does not take place in the presence of a beis din, the conversion is invalid (Shulchan Aruch, Yoreh Deah 268:3). Thus, a minimal requirement for proper giyur (conversion) is that the ger’s commitment to observe all the mitzvos and practices of a Jew be made in the presence of a kosher beis din. Any “conversion” with no commitment to mitzvos, or where the commitment is made without observant Jews present, is by definition invalid and without any halachic foundation.

Unfortunately, some well-intentioned converts have been misled by people purporting to be batei din for geirus. I know of a woman who underwent four different conversion procedures until she performed a geirus in the presence of a kosher beis din!

KABBALAS MITZVOS

As mentioned above, kabbalas mitzvos is a verbalized acceptance to observe all the Torah’s mitzvos. We do not accept a convert who states that he is accepting all the mitzvos of the Torah except for one (Gemara Bechoros 30b). Rav Moshe Feinstein discusses a woman who was interested in converting and was willing to fulfill all the mitzvos except that she did not want to dress in the halachically-required tzniyus way. Rav Moshe rules that it is questionable if her geirus is valid (Shu”t Igros Moshe Yoreh Deah 3:106).

If the potential convert states that he/she accepts kabbalas mitzvos, we usually assume that the geirus is valid. However, what is the halacha if a person declares that he accepts the mitzvos but his behavior indicates the opposite? For example, what happens if the convert eats non-kosher or desecrates Shabbos immediately following his conversion procedure? Is he considered Jewish?

Rav Moshe Feinstein rules that if it is clear that the person never intended to observe mitzvos, his conversion is invalid. The person remains a non-Jew since he never undertook kabbalas mitzvos, which is the most important component of geirus (Shu”t Igros Moshe, Yoreh Deah 1:157; 3:106).

BEIS DIN

As mentioned before, conversion is an act that requires a proper beis din, meaning minimally three fully observant male Jews.

Since a beis din cannot perform a legal function at night or on Shabbos or Yom Tov, conversions cannot be performed at these times (Shulchan Aruch, Yoreh Deah 268:4).

CHILD CONVERSION

Until now we discussed the conversion of adults. A child can also be converted to Judaism (Gemara Kesubos 11a). There are two common reasons why this is done: Either when the child’s parents are converting to Judaism, or when a non-Jewish child is adopted by Jewish parents.

The conversion of a child involves an interesting question. As we explained above, the convert’s acceptance of the mitzvos is the main factor that makes him into a Jew. However, since a child is too young to assume legal obligations and responsibilities, how can his conversion be valid when it is without a legal accepting of mitzvos?

The answer is that we know that children can be converted from the historical precedent of Sinai where the Jewish people accepted the Torah and mitzvos. Among them were thousands of children who also joined the covenant and became part of klal Yisrael. When these children became adults, they became responsible to keep mitzvos (Tosafos Sanhedrin 68b).

There is, however, a qualitative difference between a child who becomes part of the covenant together with his parents, and an adopted child who is becoming Jewish without his birth parents. In the former case the parent assumes responsibility for the child’s decision (Gemara Kesubos 11a; Rashi Yevamos 48a s.v. eved), whereas an adopting parent cannot assume this role in the conversion process. Instead, the beis din supervising the geirus acts as the child’s surrogate parents and accepts his geirus. This same approach is used if a child comes of his own volition and requests to be converted (Mordechai, Yevamos 4:40).

CAN THE CHILD REJECT THIS DECISION?

Yes. If the child convert decides on reaching maturity that he does not want to be Jewish, he invalidates his conversion and reverts to being a gentile. The age at which a child can make this decision is when he or she becomes obligated to observe mitzvos, twelve for a girl and thirteen for a boy (Shu”t Igros Moshe, Yoreh Deah 1:162).

CAN HE CHANGE HIS MIND LATER IN LIFE?

No. Once the child achieves maturity and is living an observant lifestyle, this is considered an acceptance of the conversion that cannot be rejected afterwards.

WHAT IF THE CHILD CONVERT WAS UNAWARE THAT HE WAS A GER AND DID NOT KNOW THAT HE HAD THE OPTION?

Rav Moshe Feinstein discusses the case of a couple that adopted a non-Jewish child but did not want to tell him that he was adopted. (Not telling the child he is adopted may be inadvisable for psychological reasons, but this is an article on halacha, not psychology.) Rav Moshe raises the following halachic reason why the parents should tell the child that he is a convert. Assuming that the child knows he is a child convert, he has the option to accept or reject his Judaism when turning bar mitzvah (bas mitzvah for a girl), which is a time that the parents have much influence on their child. Subsequent to this time, he cannot opt out of Judaism. However, if he does not discover that he is a convert until he becomes an adult, he would have the option at that time to accept or reject his Judaism, and the parents have limited influence on his decision.

WHAT IF THE CHILD WANTS TO BE A NON-OBSERVANT JEW?

What is the halacha if the child at age thirteen wants to be Jewish, but does not want to be observant?

There is a dispute among poskim whether this constitutes a rejection of one’s conversion or not. Some contend that not observing mitzvos is not the same as rejecting conversion; the conversion is only undone if the child does not want to be Jewish. Others contend that not observing mitzvos is considered an abandonment of one’s being Jewish.

Many years ago I asked my rebbe, Rav Yaakov Kulefsky zt”l, about the following situation. A boy underwent a giyur katan and was raised by non-observant “traditional” parents who kept a kosher home but did not observe Shabbos. The boy wanted to be Jewish without being observant, just like his adopted parents. The family wanted to celebrate his bar mitzvah in an Orthodox shul and have the boy “lein” the Torah. Was this permitted or was the boy considered non-Jewish?

Rav Kulefsky zt”l paskined that the boy could “lein” and was considered halachically Jewish. Other poskim disagree, contending that being halachically Jewish requires acknowledging the mitzvos we must perform. Someone who rejects the mitzvos thereby rejects the concept of being Jewish.

GERIM ARE SPECIAL

Once a potential ger persists in his determination to join the Jewish people, the beis din will usually recommend a program whereby he can learn about Judaism and that sets him on track for giyur. A ger tzedek should be treated with tremendous love and respect. Indeed, the Torah gives us a special mitzvah to “Love the Ger,” and we daven for them daily in our Shmoneh Esrei!

Throughout the years, I have met many sincere gerim and have been truly impressed by their dedication to Torah and mitzvos. Hearing about the journey to find truth that brought them to Judaism is usually fascinating. What would cause a gentile to join the Jewish people, risk confronting the brunt of anti-Semitism, while at the same time being uncertain that Jews will accept him?  Sincere converts are drawn by the truth of Torah and a desire to be part of the Chosen People. They know that they can follow the will of Hashem by doing seven mitzvos, but they insist on choosing an all-encompassing Torah lifestyle.

One sincere young woman, of Oriental background, stood firmly before the Beis Din. “Why would you want this?” questioned the Rav.

“Because it is truth and gives my life meaning.”

“There are many rules to follow,” he cautioned.

“I know. I have been following them meticulously for two years,” came the immediate reply. “I identify with the Jews.”

After further questioning, the beis din authorized her geirus, offering her two dates convenient for them. She chose the earlier one, so she could keep one extra Shabbos.
We should learn from the ger to observe our mitzvos every day with tremendous excitement – just as if we just received them for the first time!

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What May I Not Write? On a Wedding Invitation?—Halachos of Sheimos

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“I was told that I should not include quotations from pasukim on my daughter’s wedding invitation. Yet I see that ‘everyone’ does! Could you please explain the halacha?”

“Someone told me that sukkah decorations should not include any pasukim. Is this true? My children bring home decorations like this from school.”

“Does a newspaper containing divrei Torah need to be placed in Sheimos?”

To answer these questions, we need to explain several halachic issues, including:

1. The original prohibition against writing Torah She’ba’al Peh, and the later “heter” to write and publish it.

2. The concern about producing divrei Torah that will not be treated appropriately.

3. What items must be placed in sheimos?

THE ORIGINAL PROHIBITION AGAINST WRITING TORAH SHE’BA’AL PEH

Originally, it was prohibited to write down any Torah She’ba’al Peh at all (Gemara Gittin 60b), except for an individual’s personal notes he recorded for his own review (Rambam, introduction to Yad HaChazakah; see also Rashi, Shabbos 6b s.v. Megilas). The Oral Torah was not permitted to be taught from a written format. Torah she’ba’al peh was meant to be just that – Torah taught completely without any written text. Thus, Moshe Rabbeinu taught us the halachos of the Torah orally and Klal Yisroel memorized them. Although each student wrote private notes for the sake of review, the Oral Torah was never taught from these notes.

The prohibition against writing Torah She’ba’al Peh included writing midrashim, prayers and brachos, as well as translations and commentaries of the Written Torah, since all these are considered Torah She’ba’al Peh. In those times, all these devarim she’b’kedusha were memorized and the only part of the Torah written were the pasukim themselves.

The Gemara (Gittin 60b) records this halacha as follows: “Devarim she’ba’al peh, iy atah reshayai li’omram bi’ksav,” “You are not permitted to transmit the Oral Torah in writing.” The Ritva (ad loc.) explains that this is because divrei Torah taught verbally are understood more precisely, whereas text learning is often misunderstood.

Another prohibition forbade writing the books of Tanach except when writing a complete sefer (Gemara Gittin 60a). Thus one could not write out Parshas Tolados (or any other parsha) or a few pasukim for learning, although it was permitted to write an entire Chumash such as Shemos. Similarly, one could not write out part of a sefer of Navi to study or to read the haftarah. In order to recite the haftarahs regularly, every shul needed to own all of the eight Nevi’im (Yehoshua, Shoftim, Shmuel, Melachim, Yeshaya, Yechezkel, Yirmiyahu, and Trei Asar) to read the haftarah from the appropriate sefer. Similarly, a person who wished to study Shiras Devorah or the prayer of Channah had to write the entire Sefer Shoftim or Sefer Shmuel.

WHY DO WE NO LONGER ABIDE BY THIS PROHIBITION?

Chazal realized that it was becoming increasingly difficult for people to learn Torah and to observe related mitzvos. Therefore, they ruled that the prohibition against writing Torah must be superseded by the more vital need of keeping Torah alive among the Jews. This takanah was based on the pasuk, “Eis laasos laShem hefeiru torasecha,” which is understood to mean “It is the time to act for Hashem since Your Torah is being uprooted,” (Tehillim 119:126). In order to facilitate Torah study, they permitted writing individual verses and teaching Oral Torah from written texts. (We will refer to this takanah or heter as “eis laasos.”)

The first part of the Oral Torah to be formally written for structured teaching was the Mishnah, edited by Rebbe (Rabbi Yehudah HaNasi) at the end of the period of the Tannayim (circa 3960/200 c.e.). To quote the Rambam, “Rebbe gathered all the laws and explanations that had been studied and interpreted by every beis din since the days of Moshe Rabbeinu and organized the Mishnah from them. He (Rebbe) proceeded to teach publicly the scholars of his generation from this text so that the Oral Torah would not be forgotten from the Jewish people. Why did Rebbe change the method that had been used previously? Because he saw that the numbers of Torah students were decreasing, the difficulties facing the Jewish people were increasing, the Roman Empire was becoming stronger, and the Jews were becoming increasingly scattered. He therefore authored one work that would be in the hands of all the students to make it easier to study and remember the Oral Torah” (Introduction to Mishneh Torah).

We see that Rebbe instituted the first formalized use of a text to teach the Oral Torah because of the new circumstances confronting Klal Yisroel. After Rebbe’s days, Chazal gradually permitted writing down other texts, first Agadah (ethical teachings of the Gemara), later the entire Gemara, and still later the explanations and commentaries on the Gemara.

As a very important aside, we see from the end of the quoted Rambam who writes, “to make it easier to study and remember the Oral Torah,” that even though it is now permitted to write down the Mishnah, it is still important to know the entire Oral Torah by heart.

In the context of the rule of eis laasos, the Gemara tells us the following story:

Rabbi Yochanan and Reish Lakeish (Amoraim in Eretz Yisroel shortly after the time of Rebbe) were studying from a Talmudic anthology of ethical teachings, a “sefer Agadah.”

The Gemara asks, “How could they study from such a book, since it is prohibited to learn Torah from a written text?” The Gemara replies, “Since it is now impossible (to retain all the knowledge of the Torah without a written text), ‘it is the time to act for Hashem since Your Torah is being uprooted,’” (Gittin 60a). We see that the Gemara initially assumed that it was still prohibited to study Torah from a written text, except for the study of Mishnah. The Gemara responded that the prohibition was relaxed more because it had become even more difficult to learn Torah than it was in the days of Rebbe.

The Gemara relates a similar episode concerning the recital of the haftarah. As mentioned above, it was originally forbidden to write part of a book of Tanach and therefore every shul needed to own scrolls of all the Nevi’im in order to read the haftarah. However, as this became increasingly difficult as communities became more scattered, the Gemara permitted the writing of special haftarah books that contained only the haftarahs but not the entire text. This too was permitted because of eis la’asos (Gemara Gittin 60a).

WHAT IS PERMITTED BECAUSE OF EIS LA’ASOS?

We see that in order to facilitate Torah learning, Chazal permitted the writing of the Oral Torah and parts of the books of the Written Torah. To what extent did they override the original prohibition?

This is a dispute among early poskim, some contending that it is permitted to write only as much as is necessary to prevent Torah from being forgotten. According to this opinion, it is prohibited to write or print even tefillos that include pasukim that are not intended for learning Torah (Rif and Milchemes Hashem, Shabbos Chapter 16). This opinion also prohibits translating Tanach into any language other than the original Aramaic Targum because proper translations constitute Torah She’ba’al Peh. In addition, this opinion prohibits the printing of a parsha of Chumash in order to teach Torah, since one could write or print the entire sefer (Rambam, Hilchos Sefer Torah 7:14; Shulchan Aruch, Yoreh Deah 283:2). Other poskim permit the writing of any Torah that one uses to learn. Thus, they permit writing a single parsha in order to teach Torah (Taz 283:1; Shach 283:3) and the translating of Tanach into any language. These poskim rally support to their opinion from the fact that Rav Saadya Gaon wrote sefarim in Arabic, including commentaries on Tanach (Ran, Shabbos Chapter 16).

Both opinions agree that it is prohibited to publish translations of Tanach that will not be used to spread Torah knowledge (Ran, Shabbos Chapter 16).

HOW DOES THIS PROHIBITION AFFECT US?

All of the opinions quoted above prohibit writing disparate parts of the Written Torah and any of the Oral Torah in situations where there is no Torah benefit. For this reason, early poskim note that one may not embroider pasukim or a bracha on a tallis, since writing this pasuk does not serve to teach Torah (Rabbeinu Yerucham, quoted by Beis Yosef, and Taz, Yoreh Deah 283:3. It should be noted that the L’vush is more lenient, see Shach 283:6.).

ANOTHER CONCERN

There is an additional reason why one should not embroider pasukim on a tallis. Since the tallis might be brought into an unclean place, the pasuk could also end up in an unclean place.

A THIRD CONCERN – CAUSING THE WORDS OF TORAH TO BE DESTROYED

To explain this concept, we must first introduce a surprising statement of the Gemara: “Kosavei brachos kisorfei Torah,” “Those who write brachos (to enable people to recite them) are considered as if they burnt the Torah” (Shabbos 115b). What does this Gemara mean? We would think that these individuals have performed a tremendous mitzvah, since they have enabled people to recite brachos correctly!

This statement was authored at the time when it was still prohibited to write down the Oral Torah. At that time it was forbidden to teach any halachos in written form, even the correct text of a bracha. Everything had to be taught orally. Therefore, the Gemara states that by writing a bracha, even without the name of Hashem (Shu”t Tashbeitz #2), one is violating the halacha by teaching Torah She’ba’al Peh in writing.

BUT WHY IS IT CONSIDERED LIKE “BURNING THE TORAH?”

This Gemara introduces a new prohibition. Someone who writes prohibited Torah works is considered culpable afterwards if those divrei Torah become consumed by a fire!

We know that it is prohibited to erase or destroy the name of Hashem (Shabbos 120b) or words of Torah (Shu”t Tashbeitz #2). This prohibition applies to all holy writings, including notes of Torah classes, stories of chazal, sefarim for learning, “benschers,” etc., even if they do not include Hashem’s name (Shu”t Tashbeitz #2). Therefore, even small benchers, tefillos haderech and similar items published with abbreviated names of Hashem are still considered divrei Torah imbued with kedusha. For the above reason, one must treat these items with proper care and dignity and place them in sheimos when they become unusable.

It is also prohibited to cause an indirect destruction of words of the Torah or to produce divrei Torah that might subsequently be destroyed. This prohibition exists whenever there is insufficient reason to write and publish the divrei Torah. For this reason, the Gemara states that someone who wrote brachos when it was prohibited to do so is held responsible if the words of Torah are subsequently destroyed.

Although we are nowadays permitted to write and print brachos and siddurim to enable people to recite them properly, it is forbidden to produce these items unnecessarily. It is certainly prohibited to put pasukim, parts of pasukim, or divrei Torah in places where it is likely that they will be treated improperly. Both of these reasons preclude writing pasukim on Sukkah decorations unless one can assume that they will be properly cared for.

HOW MUCH OF A PASUK IS CONSIDERED TO BE DIVREI TORAH?

Even three words in a row are considered a pasuk (see Gemara Gittin 6b). However, if the letters are improperly or incompletely formed or spelled it is permitted (Tashbeitz #2). This is the reason why printers sometimes abbreviate pasukim or combine letters like “alef” and “lamed” to form a single letter. (Although most usages of these abbreviations have nothing to do with this halacha.)

For this reason, some people print on invitations the following, “Naaleh es Yerushalayim al rosh simchaseinu,” “We will place our memories of Yerushalayim above our celebrations,” because it is not a quotation of a pasuk, although it is similar to one (Tehillim 137:5). Therefore, this is permitted.

There is another solution that may be used, which is to rearrange the words of the pasuk so it is not in its correct order. When doing this, one must be certain that one does not have three words in proper order.

I once received an invitation which stated on the cover, “Yom zeh asah Hashem nismecha v’nagila bo,” “This day was made by Hashem. We shall rejoice and celebrate on it.” The person who prepared this quotation had done his halachic research. Although very similar to the pasuk, “Zeh hayom asah Hashem nagilah v’nismecha bo” (Tehillim 118:24) the words of the original pasuk were transposed in a way that there are no longer three consecutive words together!

Some authorities permit printing unnecessary pasukim if marks are placed between the words or if the words are not in a straight line. They feel that these arrangements of words are not considered pasukim (cf. Shu”t Tashbeitz #2 who disagrees). Similarly, some poskim allow printing invitations that quote words from pasukim, so long as the pasukim are broken up so that no three words are printed together. (However, it should be noted that many poskim prohibit this.)

Some producers of “lulav bags” are meticulously careful not to quote three words of the pasuk in order. Thus, they write, “Ulikachtem lachem…kapos temarim…visimachtem” avoiding writing three consecutive words of a pasuk. This is permitted.

Any written dvar torah has sanctity and must be treated with appropriate dignity. When it will no longer be used, one must be careful to treat it respectfully, including eventually placing it in sheimos. Reference notes that are incomprehensible on their own are not considered divrei Torah and may be placed in the regular garbage (Shu”t Igros Moshe, Yoreh Deah 2:75).

WHEN IS SOMETHING PLACED IN SHEIMOS?

Placing Hashem’s name or words of Torah into sheimos to bury them is considered a tragedy. Putting  sefarim in genizah is permitted only when they are worn out and no longer usable.

The Gemara rules that sifrei Torah that are unusable should be placed in earthenware vessels before burial to forestall their destruction as long as possible (Gemara Megilah 26b). This teaches us that burying holy things is only permitted after they become unusable. Other sefarim do not require being placed in earthenware before burial. It is sufficient to wrap them adequately before burying them.

QUOTING PASUKIM AS A WRITING STYLE

The Ramban and other authors sometimes use the words of pasukim or Chazal out of the original context as part of their poetic style. If someone wrote a letter using a pasuk this way, must it be treated with appropriate respect like holy writings?

This question is disputed by the early poskim. Shulchan Aruch rules that such correspondence is not considered divrei Torah, whereas Shach rules that it is (Yoreh Deah 284:2).

THE WRITER’S INTENT

Some poskim contend that if a printer or writer did not intend to make sefarim or divrei kedusha, then the item produced does not have kedusha (Shu”t Ayn Yitzchak 5:7; Shu”t Masas Binyamin #100; Magen Avraham 334:24). On this basis, Rav Moshe ruled that if the name of Hashem was printed in a secular newspaper, the name has no kedusha at all. However, Rav Moshe ruled that it is preferable to cut the name out of the paper and place it in sheimos (Shu”t Igros Moshe, Yoreh Deah 1:172). Similarly, Rav Elyashiv ruled that one is not required to put a newspaper containing divrei Torah into sheimos. However, one should still not treat the dvar Torah with disrespect, such as by putting it directly into the garbage (quoted in Ginzei HaKodesh pg. 236). This is based on the assumption that it should not be treated with less dignity than worn-out tzitzis (see Mishnah Berurah 21:7). Rav Vozner rules that one may place the newspaper inside a bag and place it in the garbage. However, he contends that a regular Torah column or Torah section should be placed in sheimos (quoted in Ginzei HaKodesh pg. 253). Apparently he feels that when there is a regular column or section, the printer knows that he is producing divrei Torah and not just a newspaper.
Others are less strict, requiring only that the paper be wrapped up before being discarded. Others rule that any divrei Torah printed in a newspaper should be placed in sheimos (quoted in Ginzei HaKodesh pg. 154).

INVITATIONS

Perhaps people who print pasukim on invitations rely on the fact that this is considered mere poetic writing style or that the printer has no intent to produce divrei kedusha. However, contemporary poskim prohibit this practice since the invitations end up being treated with lack of dignity, which is worse than being destroyed. In Sivan 5750/June ’90 an open letter signed by the poskei hador warned that advertisements, invitations, receipts, signs, and raffle tickets should not include pasukim or parts of pasukim, except when the pasuk is written as part of literary style with no connection to its context.

We live in an age of proliferation of written material. Many pamphlets have the positive value of spreading Torah. We must be careful to show our honor or Hashem by treating pasukim and divrei Torah with proper respect. We should always merit to demonstrate Hashem’s honor in the appropriate way!

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Wining and Dining

KONICA MINOLTA DIGITAL CAMERA  Arriving in my shul office one day, I check my schedule to see what the day’s activities will bring. The schedule notifies me that Leah Greenberg (not her real name) has an 11 o’clock appointment. I am curious what issues she plans to bring me today. Leah is highly intelligent and usually has interesting questions to discuss.

An 11:05 knock on my door announces her arrival. After she seats herself in my office, I ask her what has brought her this morning.

“As you know, I do not come from an observant background,” she begins. “Although I have been observant now for many years, I always feel that I am missing information in areas of halacha that I need to know. Instead of asking you these questions over the phone, I wanted to discuss all the questions I have on one subject matter in person at one time. – I thought that this way you could perhaps explain the halachos and the issues involved to me.”

It would be nice to spend a few moments doing what I enjoy most, teaching Torah. I encouraged Leah to read me her list.

“My first two questions have to do with kiddush Shabbos morning. I believe I was told years ago that I should make kiddush before I eat Shabbos morning. Recently, someone told me that this was not necessary. What should I do?”

“Many prominent poskim rule that a married woman does not need to recite kiddush until her husband has finished davening (Shu’t Igros Moshe, Orach Chayim 4:101:2). In their opinion, there is no requirement to recite kiddush until it is time to eat the Shabbos meal, which for a married woman is when her husband is also ready. Others contend that she should recite kiddush before she eats (Shu’t Minchas Yitzchok 4:28:3; Shmiras Shabbos K’Hilchasah 2:153).”

“Not questioning what you have told me, which is what I intend to do, I know very religious women who do not recite kiddush until the Shabbos meal. Some of them are not married, so the reason you told me above would not apply to them.”

There is a custom in some places that women did not recite kiddush Shabbos morning, and therefore you should not say anything to women who follow this practice (Daas Torah 289). But what you are doing is definitely preferable.”

“My next question has to do with a mistake I made last week. Last Shabbos morning, after I made kiddush and ate mezonos to fulfill the kiddush properly, I recited the after bracha on the cake, but forgot to include al hagafen for the wine I drank. I didn’t know whether I was supposed to recite the bracha acharonah again in order to say the al hagafen or whether I should do nothing.”

“What did you end up doing?” I inquired, curious to see how she had resolved the predicament.

“Well, I didn’t have anyone to ask, so I waited until my son came home from hashkamah minyan and made kiddush and then I had him be motzi me in the bracha acharonah.”

“That was a very clever approach. You actually did what is optimally the best thing to do, provided that you have not waited too long for the bracha acharonah. But let me ask you first. Why were you uncertain what to do after you had made kiddush?”

“Well, I know that after eating cake and drinking wine or grape juice we recite the long after bracha beginning and ending with both al hamichyah (for the food you have provided us) and al hagafen (for the vine and its fruits). I had recited this bracha, but I left out the parts referring to wine. So I was uncertain whether I had fulfilled the mitzvah with regard to the wine since I had only mentioned al hamichyah, which only refers to the cake.”

“Your analysis of the question is very accurate,” I responded. “But I am first going to answer a question with a question. What happens if you only drank wine, and ate nothing at all, and then afterwards recited al hamichyah and did not mention al hagafen at all? Or for that matter, what happens if you recited the full bensching after drinking wine. Did you fulfill your responsibility?”

“I would think that you did not fulfill the mitzvah since you did not recite al hagafen,” Leah responded. “But because of the way you asked the question, I guess I am wrong. I told you that I don’t have the strongest halacha background.”

What a beautiful neshamah! I found my mind wondering. Leah was always eager to learn more about Yiddishkeit and halacha, and she always felt humble. This is how we should always feel before the Almighty. In truth, she was usually far more knowledgeable than most people who take their Yiddishkeit for granted.

I returned to our conversation.

“I presented you with two cases. If someone bensched a full bircas hamazon after drinking wine but not eating anything, we paskin that he should not recite a new bracha acharonah since wine does provide satisfaction (Shulchan Aruch, Orach Chayim 208:17). However, many other foods, such as most fruit, are not satisfying enough that bensching would fulfill the responsibility. Therefore, the bracha of bensching is inappropriate for them, and one must recite the correct bracha acharonah.

“In the case of someone who recited al hamichyah instead of al hagafen, there is a dispute whether he must recite al hagafen or not. Most poskim contend that one has fulfilled the mitzvah and should not recite a new bracha” (Levush 208:17; Eliyahu Rabbah 208:26; cf., however, the Maadanei Yom Tov and Pri Megadim 208:16 in Mishbetzos Zahav who disagree and rule that one must recite al hagafen.)

“Then it would seem that I should not have recited al hagafen and I did not have to wait for my son to come home. Why did you say that I did what was optimally correct?”

“Actually, your case is a bit more complicated than the ones I just presented.”

“How so?”

“In the two cases I mentioned, reciting full bensching or al hamichyah after wine, one did not eat anything at all that would require bensching or al hamichyah, so the bracha can only have referred to the wine. The halachic question we deal with is whether this bracha can ever refer to wine or not. If the bracha can never refer to wine, then it has the status of a bracha li’vatalah, a bracha recited in vain.

“However, when you drank wine and ate cake you were required to include two different themes, one for the wine and the other for the cake, but you included only one. Here our question is whether one theme will fulfill both bracha requirements.”

“I find this rather confusing. Either the bracha al hamichyah works for wine or it does not. How can it sometimes work and sometimes not?”

“Let me give you a different example that will be more familiar. What happens if you recite the bracha of borei pri ha’adamah on an apple?”

“I have been told that one isn’t supposed to do this, but if you did one should not recite a new bracha.”

“That is exactly correct. Now let me ask you another question. What happens if you plan to eat an apple and a tomato, and you recited borei pri ha’adamah on the tomato? Do you now recite a borei pri ha’eitz on the apple or is it covered with the borei pri ha’adamah that you recited on the tomato.”

“I understand,” replied Leah. “One is not supposed to recite ha’adamah on an apple, but if one did, he fulfilled his requirement. However, if one is eating an apple and a tomato, and recited ha’adamah and then ate the tomato, he still must recite ha’eitz on the apple.”

“Precisely.”

“But why is this?”

“The ha’adamah does not usually apply to the apple which does not grow directly from the ground. However, when there is nothing else for the ha’adamah to refer to, it does apply to the apple since it grows on a tree which grows from the ground. Therefore when one recites ha’adamah on an apple, one does not recite a new bracha. But when one recited the ha’adamah on a tomato, the bracha does not include the apple.”

“Are there any other examples of this rule?”

“There are many. Here’s one. As you know the correct bracha after eating grapes is al ha’eitz ve’al pri ha’eitz (for the land and for the fruits of the land), not al hagafen ve’al pri hagafen (for the vine and for the fruits of the vine), which refers specifically to wine. However, if one recited al hagafen after eating grapes, one should not recite a new bracha since the literal wording of the bracha includes all fruits of the vine, which also includes grapes (Shulchan Aruch, 208:15). But what happens if someone finished a snack in which he ate grapes and drank wine?”

“I believe he is supposed to recite al hapeiros ve’al hagafen,” Leah interposed.

“Correct. But what happens if he recited just al hagafen and forgot to say al hapeiros. Must he now recite a bracha of al hapeiros because of the grapes or was he yotzei with the al hagafen that he recited?

“Based on the direction that you are leading me, it would seem that he must recite al hapeiros since the bracha of al hagafen referred only to the wine he drank, just like the ha’adamah referred only to the tomato and not to the apple (Shulchan Aruch, 208:14).”

“Excellent.”

“May I conclude that someone who recited al hamichyah on wine fulfilled his requirement if he only drank wine, but did not fulfill their requirement to recite a bracha acharonah on the wine if they also ate cake?”

“Some poskim reach exactly this conclusion (Shu’t Har Tzvi #105). However, others rule that one has fulfilled the requirement of a bracha acharonah on the wine also and should not recite al hagafen. They reason that al hamichyah includes any food that satisfies, even while eating another food (Kaf HaChayim 208:76). That is why I told you that having someone be motzi you in the bracha acharonah is the best option since it covers all bases.”

“This whole discussion is very fascinating, and I think it leads into the next question I want to ask. I know that the correct bracha after eating grapes is al ha’eitz ve’al pri ha’eitz but the correct bracha after eating most fruit is borei nefashos. What do you do if you eat both grapes and apples as a snack? Somehow it does not sound correct that you make two brachos.”

“You are absolutely correct. Although the bracha after eating an apple is borei nefashos, when one recites al ha’eitz ve’al pri ha’eitz anyway, that bracha also covers the apples or other fruit that one ate (Shulchan Aruch 208:13).”

“What happens if I ate an apple and drank some grape juice at the same time? Do I recite one bracha or two afterwards?”

“This a really good question – Rav Moshe Feinstein actually has a tshuvah devoted exactly to this question. But before presenting his discussion, we first need to discuss a different shaylah.” I paused for a few seconds before I continued.

“What is the closing of the bracha we recite after drinking wine?”

“All I know is what it says in the sidurim and benschers. There it says to recite “al ha’aretz ve’al pri hagafen.”

“We follow this version (Taz 208:14), but actually there is another text to the bracha that is also acceptable.”

“What is that?”

“Some poskim close with al ha’aretz ve’al hapeiros, meaning that the closing of the bracha on wine is the same as it is on grapes, dates, or olives. According to this opinion, the bracha after drinking wine begins with al ha’aretz ve’al pri hagafen and ends al ha’aretz ve’al hapeiros (Rambam). Although I have never seen this text printed in any benscher or siddur, poskim quote it as a perfectly acceptable version (Shulchan Aruch 208:11). However, according to both opinions one begins the bracha with the words al hagafen ve’al pri hagafen.”

“May I ask you something at this point,” Leah interjected. “You told me before that if someone ate grapes and apples he recites just one bracha al ha’eitz ve’al pri ha’eitz for both the grapes and the apples. Will this affect whether one can say the same bracha after wine and apples? Even according to the opinion that one concludes by mentioning fruit, he began by saying al hagafen ve’al pri hagafen and does not mention fruit until the end of the bracha. Does this affect whether one bracha suffices for both the wine and the apple?”

I must admit that I was astounded by the pure brilliancy of her analysis. Leah was unaware that she had just unraveled the core issue in Rav Moshe’s teshuvah (Shu’t Igros Moshe, Orach Chayim #72) on the subject, and that she had zeroed in on a dispute among the poskim whether this bracha that begins with a reference to grapes and ends with a bracha on fruits suffices to fulfill the bracha on another fruit.

“Now I can explain the shaylah you asked about someone who ate an apple and drank grape juice at the same time. Rav Moshe says that it depends what bracha he recites at the end of the bracha after drinking the grape juice. If he recites al ha’aretz ve’al pri hagafen then he should recite a borei nefashos afterwards because neither part of the bracha referred to fruit, only to grapes. However, if he concludes al ha’aretz ve’al hapeiros there is a dispute what to do and one should not recite a borei nefashos.

“May I ask one last question for the day if I might?”

“Feel free to ask as many as you like. My greatest pleasure in life is answering questions about Torah.”

“I know that when we eat fruit that grew in Eretz Yisroel we modify the end of the bracha acharonah to reflect this fact. Do we do the same thing if we drink wine produced in Eretz Yisroel?”

“After drinking wine or grape juice produced from grapes that grew in Eretz Yisroel one should recite al ha’aretz ve’al pri gafnah, for the land and for the fruit of its vine, or al ha’aretz ve’al peiroseha, for the land and for its fruit, thus praising Hashem for our benefiting from the produce of the special land He gave us.

“What bracha do we recite after eating cake or crackers made from flour that grew in Eretz Yisroel?”

“Some poskim contend that one should recite “al michyasah” on its produce after eating flour items that grew in Eretz Yisroel (Birkei Yosef 208:10; Shu’t Har Tzvi #108). However, the prevalent practice is to recite “al hamichyah” and not “al michyasah” after eating pastry or pasta items even if they are made from flour that grew in Eretz Yisroel (Birkei Yosef 208:10).”

“Why is there a difference between flour and wine?”

“When eating fruit and drinking wine, the different nature of the source country is very identifiable. Therefore its bracha should reflect a special praise of Eretz Yisroel. However, when one makes a product from flour, the source of the flour is not obvious in the finished product. Thus, praising Hashem for the special grain His land produces is inappropriate.”

“I have really enjoyed this conversation, and if possible would like to continue it at a different time with other questions.”

“It will be my pleasure.”

Leah left with a big smile on her face, having now mastered a new area of halacha. Although I was technically the teacher of the meeting, I learned a tremendous amount from her in terms of enthusiasm about mitzvos and humility in serving Hashem.

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The Fateful U-Turn

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This article was originally published in the American edition of the Yated Neeman

 

ACT I – The Fateful U-Turn

Location: THE HIGHWAY

Reuven missed his exit off the highway. Since it was a bright, clear day, he decided to make a U-turn to get back in the right direction. Although this was illegal, he did not consider it dangerous since the road was virtually deserted, except for a car coming in the other direction which seemed to be quite a distance away.

Reuven was mistaken. His car collided with the other vehicle. Fortunately, no one was injured, but both cars suffered significant damage.

The other driver, Shimon, considered Reuven responsible for the damage to his vehicle, although Reuven insisted that Shimon must have been speeding for the accident to have occurred. Shimon insisted that he was not speeding.

To complicate matters, the car Reuven was driving was not his own. That morning, his friend Yaakov had asked Reuven to drive him to the airport using Yaakov’s car. On the way to the airport, Yaakov mentioned that since he was leaving for a week, Reuven could borrow the car while he was gone.

After the accident, Reuven discovered that Yaakov’s car had no collision insurance, and worse yet, no liability insurance for any driver except Yaakov. Thus, there is no insurance coverage for the damage done to either vehicle.

Because Reuven would never have driven the car had he known it was uninsured, he claims that he never assumed responsibility for the value of the car when he agreed to borrow it.

Is Reuven liable for the damage to both vehicles? Although Reuven is over his head in debt, if he is halachically obligated to pay either Yaakov or Shimon, he will do so. But if he is not required to do so, he feels that he is not in a financial position to make the compensation.

Reuven, Shimon, and Yaakov submit the shaylah to a beis din for arbitration. They schedule an appointment and come prepared to present their cases.

ACT II – THE COURTROOM

Location: The offices of the beis din.

On the appointed day, the three litigants appear in the beis din. Shimon claims that Reuven must compensate him for the damage to his car, and that Yaakov should also be liable as the owner of an improperly insured vehicle. Reuven claims that Shimon is responsible for all the damages since the accident happened because of Shimon’s speeding. Yaakov claims that Reuven damaged his vehicle and is therefore obligated to pay for its repair.

Yaakov presents his claim against Reuven first, stating that he has claims against Reuven for two different reasons:

1. First, Reuven should be liable as the borrower of the car even if the damage was not his responsibility.

2. Second, Reuven is liable as a mazik, one who damages, since his negligence caused an accident.

Let us examine the validity of each claim separately, and then we will see what Reuven countered.

SHO’EIL

A sho’eil, a borrower, is responsible for almost any damage that takes place to the item he borrows, even if the damage is accidental and not caused by the borrower. (There are two circumstances where a sho’eil is not liable, but they do not apply here, and I am therefore omitting them from our discussion.) Yaakov claims that Reuven is responsible to make full restitution for the value of the car since he borrowed it.

REUVEN’S DEFENSE

Reuven turns to the dayanim and explains, “I believe that I am not a sho’eil according to halacha, but I have the halacha of a socheir, a renter, notwithstanding the fact that I paid no money. Furthermore, I claim that even as a socheir I am not responsible for the damages sustained as I will explain.”

WHAT ARE THE RESPONSIBILITIES OF A SOCHEIR?

A socheir is liable for damage if the item is lost or stolen, or if he is negligent, but he is not responsible for accidental damage. There is also another major difference in halacha between a sho’eil and a socheir that Reuven uses as an essential component of his defense, as I will explain.

WAS REUVEN A SHO’EIL OR A SOCHEIR?

In order to analyze this question, we need to explain why a sho’eil carries so much responsibility. The Gemara mentions that a sho’eil’s liability is so great because he gains all the benefits of the loan without any responsibilities in return. (This is called kol hana’ah shelo, “all benefits are to the borrower.”) Since the borrower receives all the benefits, the Torah obligates him to compensate the owner for any damage whatsoever, even if it was beyond his control.

However, any time the lender receives some compensation, even non-monetary, the arrangement is not kol hana’ah shelo and the borrower is not liable for accidental damage. In our situation, Yaakov received a chauffeured ride to the airport in exchange for Reuven’s borrowing the car. Halacha views this as if Reuven rented the car from Yaakov, paying him for the rental by driving him to the airport. This is enough to make Reuven into a socheir rather than a sho’eil, and exempts him from paying for accidental damages (see Shu’t HaRan #20).

BUT WAS THIS A CASE OF NEGLIGENCE?

Yaakov objects to Reuven’s defense. “Even if I received some benefit and you are not a sho’eil, you are still liable as a socheir because the damage was caused by negligence!”

However, Reuven has done his homework. He knows that there is another distinction between a renter and a borrower that we will now explain.

DID REUVEN ASSUME RESPONSIBILITY FOR THE CAR?

Reuven claims he would never have driven the car had he known it was uninsured. Therefore, he never assumed any responsibility for the car’s value and he is not liable for the damage. Does this defense have any merit?

The Gemara discusses a case where someone assumed responsibility for an item assuming it was worth far less than it actually is. If the item is subsequently lost, he is only responsible for as much value as he originally thought the item was worth (Shulchan Aruch, Choshen Mishpat 291:4). Thus, Reuven can legitimately claim that he was not responsible as a socheir of the car because he never assumed responsibility for its value.

BUT WHY DID REUVEN INSIST THAT HE WAS NOT A SHO’EIL?

Reuven first claimed that he was not a sho’eil because Yaakov had received benefit. Only then did he claim that he wasn’t even a socheir because he had never assumed any responsibility. This seems like an unnecessary step in his defense – let him simply claim that he never assumed any responsibility, whether as a sho’eil or as a socheir.

The answer is that there is a halachic difference between borrowing and renting. A borrower becomes responsible for all the damages even if he did not assume responsibility; that is, the fact that he uses the item without providing the lender any compensation makes him responsible (Machanei Efrayim, Hilchos She’eilah #1; Milu’ei Mishpat 346:8; cf. however Nesivos HaMishpat 346:8, who implies that even a sho’eil is not responsible under these circumstances). However, a socheir’s liability is limited to how much responsibility he assumed.

WHY IS A BORROWER DIFFERENT FROM A RENTER?

A borrower is responsible because of the concept of kol hana’ah shelo, “all benefits are to the borrower.” The circumstances are what make him liable, not necessarily his agreement. (Although the lender can agree to exempt the borrower from all damages, in the absence of such an agreement, the borrower is responsible for all damages.) Thus, a borrower claiming that he never assumed responsibility or that he was unaware of the liability would not be a defense. However, a socheir’s liability results from his agreement to be responsible as a socheir. Therefore, claiming that he never assumed responsibility is a valid defense.

Thus, Reuven claims that he is not responsible for having borrowed the car based on the following reasoning:

1. He is not a sho’eil, but a socheir, since Yaakov received benefit from the “loan.”

2. As a socheir he can claim that he never accepted responsibility for the value of the car because he assumed that insurance was covering the financial liability.

WHAT ABOUT A MAZIK, SOMEONE WHO DAMAGED SOMEONE ELSE’S PROPERTY?

Reuven has successfully demonstrated that he is not obligated to pay as a borrower. However, this does not exonerate him from Yaakov’s claim that he damaged the vehicle. His defense against this claim was that Shimon caused the accident. Is this claim a sufficient defense? Moreover, is it Yaakov’s responsibility to prove who caused the accident in order to collect the damages from Reuven?

First we must clarify two shaylos:

1. If someone damaged property in a traffic accident, is he considered a mazik who must pay for damages?

2. When two parties are involved in a collision, how do we assign financial responsibility?

The following incident that happened over seven hundred years ago resolves one of our questions.

ACT III – SOME HORSEPLAY

Location: Thirteenth Century Germany

The Rosh (quoted by Tur, Choshen Mishpat 378:9) discusses the following din Torah:

During a wedding celebration, the groom was riding a very expensive mule that he had rented from a non-Jew for the occasion. (This was the thirteenth-century equivalent to renting a white Cadillac for a newlywed couple.) One of his well-wishers galloped up the street on horseback, unintentionally crashing his horse into the groom’s mule. Baruch Hashem, the groom emerged unscathed from the collision, but the mule suffered severe damage. Under civil law, the groom, as renter of the mule, was obligated to pay not only damages but also a sizable penalty. Must the reckless rider compensate the groom for the damages and the penalties?

The horse rider refused to pay, contending that he was exempt from damages since he was riding on a public thoroughfare. Furthermore, he had not done the damage; the horse was responsible. He claimed that this case is comparable to that of an animal that tramples on property while walking through a public area. In that instance, the halacha does not obligate the owner of the animal to pay if his animal tramples property left in a public area.

The Rosh ruled that there is a difference between an animal walking and a rider galloping on a horse. In the latter case, the rider himself is the damaging party, and the horse is the “tool” with which the rider damaged. A person is required to use a public thoroughfare in a responsible way, and galloping on a horse when other people are nearby is irresponsible. Since the rider acted irresponsibly, he must pay damages. (For reasons beyond the scope of this article, the Rosh absolved the rider from paying for the penalties that the groom incurred.)

When two cars collide, who is responsible for the damage?

Based on the above ruling, any damage performed by an automobile is considered damage performed by its driver, and the automobile is considered his tool. However, this does not tell us how we determine which driver is responsible, and for how much damage.

For this we will have to refer to an older discussion that traces back to the time of the Gemara.

ACT IV – A COLLISION

Location: Bavel, Seventeen Hundred Years Ago

The Gemara (Bava Kamma 32a; 48a) and the poskim discuss at length the case of two people colliding into one another on a city street, both of whom sustain injuries. Who is responsible to pay for the damages?

We will simplify a very complicated discussion by providing some general rules that apply to our case:

If one party acted responsibly and the other acted irresponsibly, and the two parties collided, the party who acted irresponsibly is liable for damages. Thus, if one person is running through the street and the other is walking, and the two people collide, the running person is liable since that is considered acting irresponsibly. (There is an exception. The halacha acknowledges that someone is permitted to run through the streets late Friday afternoon to get his Shabbos jobs done. This running is not considered irresponsible.)

If both parties acted irresponsibly, the poskim dispute how we determine liability. Rashi (Bava Kamma 48b s.v. chayovin) rules that when the two parties collided into one another, each person is liable for the damage he did. Thus if Levi and Yehudah collide, Levi is responsible for Yehudah’s injuries and Yehudah for Levi’s.

Tosafos (Bava Kamma s.v. shnayim) disagrees, contending that in a case where both parties acted irresponsibly and the damage was accidental, neither party must pay for damages, since the damaged party also acted negligently. However, if someone injured or damaged intentionally he must pay even if the other party was negligent.

How do we paskin?

The Shulchan Aruch (378:7) rules like Rashi whereas the Rama (421:8) rules like Tosafos.

Let us now apply the rules just mentioned to our case. By his own admission, Reuven made an illegal turn, which certainly qualifies as negligent driving. Thus, even if we accept Reuven’s claim that Shimon was speeding, it is still a case of both drivers acting irresponsibly. According to Rashi’s opinion, this would still make Reuven responsible for the damages to Shimon’s vehicle. In addition, Reuven would be responsible for the damage to the car he was driving since he acted negligently. Reuven is claiming that Shimon should be responsible for those damages, a claim that he cannot substantiate.

According to Tosafos, Reuven is claiming that both parties contributed to the damage and that therefore he is not liable for the damages to Shimon’s vehicle. However, he would certainly be liable for the damages that happened to the car that he was driving.

This is all assuming that we accept Reuven’s contention that Shimon was speeding. However, Reuven cannot prove that Shimon was speeding, and Shimon denies it. Since we know that Reuven made an illegal turn, the beis din ruled that Reuven acted negligently and is liable for the damage to both cars. Since there is no proof that Shimon was negligent, we cannot make any claim against him.

ACT V – EPILOGUE

Reuven was understandably disappointed with the beis din’s decision. However, as a G-d fearing Jew, he knows that he is bound by their psak. Thankfully, there was only property damage involved and he did not inadvertently suffer or cause any bodily harm. He now davens for Hashem’s help that he continues his driving career with no further incidents or accidents.

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Curious Kiddush Shaylos

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The Torah commands us to declare the sanctity of Shabbos, a mitzvah we fulfill when we recite kiddush before beginning the meal. Simple as this mitzvah appears, it sometimes involves interesting shaylos.

We recite kiddush before the seudah at night and also Shabbos morning. The Torah mitzvah of kiddush is fulfilled at night and has two brachos, one on the wine and the other is the special kiddush bracha. The daytime kiddush was instituted by Chazal in order to demonstrate that because the Shabbos meals are special we drink a cup of wine beforehand. (The psukim that we recite before this kiddush are a later minhag, presumably to emphasize that we are reciting kiddush.) One is forbidden to eat or drink before reciting kiddush. The poskim dispute whether an ill or weak person who eats before davening should make kiddush before doing so or after. There is also a dispute whether a woman makes kiddush before eating breakfast on Shabbos morning or whether she does not need to make kiddush until she eats later with her husband.

Someone who failed to recite the full kiddush at night for some reason, must recite it before or during one of the Shabbos day meals (Shulchan Aruch, Orach Chayim 271:8). We will later discuss an interesting application of this rule.

One can fulfill the mitzvah of kiddush either by reciting it oneself or hearing it from someone else who recites it. This happens when the head of the household recites kiddush for everyone at the table. Everyone is yotzei kiddush, he by reciting it and everyone else by hearing it. This is referred to as the baal habayis being “motzi” the others in their mitzvah.

Several requirements must be met in order to fulfill the mitzvah through hearing someone else’s kiddush. One of the requirements is that the person reciting kiddush must be obligated in the mitzvah. For this reason, only an adult can be motzi other adults.

When I was twelve-years old, I once spent Shabbos with my widowed grandmother, a”h. She wanted me, as the “man” of the house, to recite kiddush, and I was happy to oblige. Years later it occurred to me that my recital did not fulfill her obligation to fulfill the mitzvah of kiddush since I was under bar mitzvah at the time.

HEARING KIDDUSH

The people fulfilling the mitzvah must hear the kiddush. Therefore, if the baal habayis mumbles inaudibly they do not fulfill the mitzvah. Trying to solve this problem can sometimes create shalom bayis issues or hurt someone’s feelings. A rav’s direction may be very helpful.

Someone once asked me the following shaylah. His father-in-law recited kiddush in a very garbled manner. Even if his father-in-law indeed recited a full kiddush, he (the son-in-law) did not hear enough to be yotzei. How could he fulfill the mitzvah of kiddush without hurting anyone’s feelings ?

I proposed two possible suggestions. One was to find some practical excuse why he (the son-in-law) should recite his own kiddush after his father-in-law (such as this is his personal custom). Alternatively, if this is not a practical solution, he and his wife could discreetly make kiddush in their own room beforehand. (Of course, this solution will not help when their children get older.) Later in this article, we will discuss whether one can recite kiddush in one room and eat in another.

KEEP THEM IN MIND

It is necessary that the person making kiddush intend to be motzi those who want to fulfill the mitzvah, and they must have intent to fulfill the mitzvah with his recital. This leads us to a curious situation that once happened to me.

I was visiting the Schwartzes (Note: all names have been changed) for Shabbos and they honored me to recite kiddush first – or so I thought. I assumed that I was reciting kiddush for myself and that the baal habayis would then recite kiddush for his family. However, upon completing my kiddush, it became clear that the family had assumed that I had made kiddush for them as well. But since this was not my intention, they were not yotzei.

It turned out that the head of household was embarrassed to recite kiddush in my presence. Under the unusual circumstances, I may well have ended up reciting kiddush twice, one right after the other, because the family still needed someone to be motzi them in kiddush. Thus, if the baal habayis was still reluctant to recite kiddush, I could have recited it a second time for them because of the concept “Yatza motzi,” “someone who has already fulfilled the mitzvah may recite kiddush another time for someone who has not yet fulfilled it.”

HOW CAN I RECITE KIDDUSH WHEN I ALREADY PERFORMED THE MITZVAH?

One may recite a birchas hamitzvah (a bracha on a mitzvah) on behalf of another person (presuming that we are both obligated to fulfill this mitzvah) even if one is not presently fulfilling this mitzvah because of the principle “kol Yisroel areivim zeh lazeh,” “all Jews are responsible for one another,” (Gemara Rosh HaShanah 29a). This concept of “areivus” means that since I am responsible to help another Jew observe mitzvos, his responsibility to fulfill a particular mitzvah is also my mitzvah. Since I am responsible to see that my fellow Jew makes kiddush, I can recite the kiddush bracha on his behalf. For this same reason, I can still blow shofar in a shul and recite the brachos for other people even if I already fulfilled the mitzvah of shofar earlier.

MAKING KIDDUSH WHEN I WILL FULFILL THE MITZVAH LATER

I was once asked the following shaylah. Mr. Hirsch was hospitalized, and his wife was unable to make kiddush for her family. Mr. Goldberg, one of the Hirsch’s neighbors, asked whether he could make kiddush for the Hirsch family on his way home from shul and then go home and make kiddush for his own family. I told him that this was perfectly acceptable. However if he was not planning to eat anything at the Hirsch residence, he should not drink the kiddush wine but instead ask one of the Hirsch adults to drink most of a revi’is (about one-and-a-half ounces) from the cup (Shulchan Aruch, Orach Chayim 273:4; 271:13). I will explain later why Mr. Goldberg should not drink from the Hirsch goblet.

This seems strange. How can Mr. Goldberg recite “borei pri hagafen” and not drink any wine?

THE DISTINCTION BETWEEN THE DIFFERENT TYPES OF BRACHOS

The answer to this question needs an introduction. It is true that one cannot recite a bracha on food or fragrance (birchas ha’ne’henin) for someone else’s benefit unless he is anyway making that bracha for himself. This is because the other person is not fulfilling any obligatory mitzvah by reciting these brachos. He needs to recite a bracha because he is gaining benefit, not because he is obligated to perform a mitzvah. Therefore, the rule of areivus does not apply in this case. Because he has no absolute obligation, one does not share in his mitzvah and cannot make the bracha on his behalf.

However, the bracha on kiddush wine is different because it is considered part of the obligatory mitzvah of kiddush (Gemara Rosh HaShanah 29a). Therefore, Mr. Goldberg can also make borei pri hagafen for the Hirsches even though he is not drinking any wine. (It should be noted that it is disputed whether this halacha is true for the daytime kiddush.)

AN INTERESTING APPLICATION

Sometimes one has guests for a Shabbos daytime meal who have not yet fulfilled the mitzvah of kiddush this Shabbos at all. (A common application is when a guest is not yet observant.) This provides one with an opportunity to perform the additional mitzvah (in addition to exposing one’s guests to Shabbos) of kiddush. As explained above, the normal daytime kiddush is not a replacement for the night kiddush. Therefore, our unobservant lunch guests have not yet fulfilled the mitzvah of kiddush this Shabbos. How can one alleviate the situation?

Since kiddush can be recited the entire Shabbos day, one should recite the full Friday night kiddush on Shabbos daytime on behalf of his guests. Although he has already fulfilled the mitzvah, he can still be motzi his guests. However, in order to do so he must explain to them that hearing kiddush is a mitzvah and that they should listen to him with the intent to fulfill the mitzvah. (It is always a good idea to do this so that one’s guests know to fulfill the mitzvah.)

WHY COULDN’T MR. GOLDBERG DRINK THE CUP OF WINE?

Before answering this question, we need to explain the concept of “Ayn kiddush elah b’makom seudah,” “Kiddush must be recited in the place that one will be eating a meal” (Gemara Pesachim 101a).

The Gemara relates the following story. One Friday evening, Rabba made kiddush. Although his disciple Abaye was present, Abaye planned to eat his Shabbos meal in his own lodgings. Rabba urged Abaye to “taste something” before he left, voicing concern that the light in Abaye’s lodging might extinguish before his arrival, making it impossible to make kiddush there. (I presume that Abaye was unable to locate his wine in the dark.) Rabba pointed out that Abaye would not be yotzei with the kiddush he just heard unless he ate something at Rabba’s house because of “Ayn kiddush elah b’makom seudah,” (Gemara Pesachim 101a).

This halacha is derived from the pasuk “Vikarasa LaShabbos Oneg” (Yeshaya 58:13), which Chazal midrashically interpret to mean, “In the place where you declare the kiddush of Shabbos, you should also celebrate your Shabbos meal” (Rashbam and Tosafos ad loc.). From this we derive that one must eat a meal in the place that one recites kiddush.

WHAT IS CONSIDERED THE SAME PLACE?

The Gemara rules that someone fulfills kiddush if he recited (or heard) kiddush in one part of a large room and ate in a different part of the room since this is considered the same place. Some poskim contend that one should not move to a different part of the house unless he knew at the time of kiddush that he might do this (Magen Avraham 273:1; Mishneh Berurah 273:3) and even this should be done only under extenuating circumstances (see Biyur Halacha 273:1). However, if one recited kiddush in one building and then went to a different building without eating, one certainly did not fulfill the mitzvah of kiddush and must recite (or hear) it again. This is why Mr. Goldberg could not drink the Hirsch’s wine. Since he had no intent to eat at the Hirsch’s house, he could not fulfill the mitzvah of kiddush there. Therefore he also couldn’t drink the wine since one cannot drink before fulfilling the mitzvah of kiddush. (According to most poskim, Mr. Goldberg has another option: he could drink the kiddush and then another cup of wine. This would be considered kiddush b’makom seudah.)

KIDDUSH IN SHUL

These two concepts (areivus and ayn kiddush elah b’makom seudah) are the basis of the custom that the chazzan recites kiddush in shul Friday evening without drinking the cup of wine.

Why is kiddush recited in shul at the end of Friday evening davening?

The Gemara mentions that in its time guests often stayed and ate their Shabbos meals in rooms attached to the shul and someone recited kiddush in shul on their behalf. Since the guests were eating in the same building, it was considered “kiddush b’makom seudah” and they fulfilled their mitzvah.

However, the chazzan who makes kiddush does not fulfill his mitzvah since he is eating his meal at his house which is in a different building. Therefore, he should not drink the kiddush wine. Instead it should be drunk by a guest eating in the building, and if there are no guests the cup is drunk by children who are permitted to drink or eat before kiddush. (Although in general children should be taught to keep mitzvos like adults, there is no requirement of chinnuch in this case. Iy”H I hope to discuss this halacha in a future article.)

ANOTHER INTERESTING SHAYLAH

I was once asked the following question from someone who was a guest at a Shabbos bar mitzvah:

“The baal simcha made kiddush in the shul immediately after davening, but the kiddush was conducted in the shul’s social hall. Is this an acceptable way to fulfill the mitzvah?”

Based on the above discussion, we can answer this question. If the social hall was in a different building, they would need to recite kiddush again in the social hall. Assuming the social hall was in the same building as the kiddush, this was acceptable under extenuating circumstances, assuming that they ate in the social hall. It would be preferred that they follow a different procedure, such as having kiddush made in the social hall.

WHAT IS CONSIDERED A MEAL?

Rabba’s words (“taste something”) imply that one fulfills kiddush without necessarily eating a meal, notwithstanding the Gemara’s statement that one must eat a meal where he recites kiddush. The Gaonim explain that one must begin his meal where he said kiddush by either eating some bread or drinking wine and this answer is quoted in Shulchan Aruch (Orach Chayim 273:5). The Gaonim explicitly state that one does not fulfill kiddush b’makom seudah by eating only fruit. Although some poskim disagree, arguing that one fulfills kiddush b’makom seudah by eating fruit (Shiltei HaGiborim Pesachim 20a:1, quoting Riaz, as explained by Magen Avraham 273:11) the accepted practice does not follow this opinion (Magen Avraham 273:11; Shu”t Ayn Yitzchak #12).

Magen Avraham rules that one fulfills kiddush b’makom seudah by eating a kizayis-sized piece of mezonos (the same size piece that requires an “al hamichyah” blessing afterwards), and this is the prevalent practice followed on Shabbos morning when people often make kiddush and then eat pastry or crackers. Some poskim rule that one should not rely on drinking wine to fulfill kiddush b’makom seudah but instead eat mezonos or bread (see Rabbi Akiva Eiger to 273:5 and Mishneh Berurah 273:26).

Some people follow the practice of the Vilna Gaon to recite kiddush only immediately before the meal they are eating for the Shabbos seudah (see Biyur Halacha and Rabbi Akiva Eiger to 273:5). In his opinion the concept of “Vikarasa LaShabbos Oneg,” means that one should declare the kiddush of Shabbos specifically at the time that one celebrates the Shabbos meal.

KIDDUSH ON YOM TOV

I was once asked the following question. The director of a small senior residence used to always make kiddush for the residents and then go home to eat the Shabbos seudah with his family. One Yom Tov, there were only women in the residence. Could he make kiddush for them without eating there?

WHY SHOULD THERE BE ANY DIFFERENCE BETWEEN SHABBOS AND YOM TOV?

There might be a difference between Shabbos and Yom Tov in this regard. There is a dispute among the poskim whether women are obligated to recite kiddush on Yom Tov. The Gemara states that although women are usually not obligated to fulfill positive time-bound mitzvos (mitzvos aseh she-ha’zman grama), there are numerous exceptions to this rule, including kiddush. Some poskim believe that only Shabbos kiddush is an exception and that women are not required to recite kiddush on Yom Tov (Shu”t Rabbi Akiva Eiger #1). Other poskim (Graz 271:5) contend that there is no difference between kiddush on Shabbos and kiddush on Yom Tov – women are required to recite both (or hear them from someone else).

Although the universal practice is that women hear kiddush on Yom Tov, the above dispute has major ramifications. We mentioned above that one can be motzi someone even when one is not now fulfilling the mitzvah because of the concept of areivus. This means that the person making kiddush carries some of the responsibility of the mitzvah for the person who has not yet fulfilled the mitzvah. However, according to Rabbi Akiva Eiger, a woman does not have a mitzvah of reciting kiddush on Yom Tov. Therefore, a man who is presently not fulfilling the mitzvah cannot recite kiddush on her behalf. According to Rabbi Akiva Eiger, he should eat something after making kiddush and fulfill his mitzvah of kiddush in the residence.

Kiddush sets the tone of the whole Shabbos meal. In the midst of remembering the details and requirements of this mitzvah, we should never forget to also focus on the beauty of Shabbos and the wonderful opportunity we are given to sanctify it verbally day and night!

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Cleanliness Is Next to G-dliness, Or This Is the Way We Wash Our Hands

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Question #1: I know that after clipping my nails, I must wash my hands. What happens if I hear someone recite a bracha before I have a chance to wash my hands? Do I answer Amen to the bracha?

Question #2: At what age should I have my baby wash negel vasser?

Question #3: Must a caterer insist that his non-Jewish employees wash negel vasser before beginning work?

A person must perform a ritual hand-washing after the completion of certain activities, including upon arising in the morning; before eating bread; after shaving, haircutting, clipping one’s nails, and touching private parts of one’s body; exiting the lavatory; scratching one’s scalp; and touching one’s shoes (Shulchan Aruch Orach Chayim 4:18).

However, the procedure for these different washings is not the same. Some situations require washing each hand once, while others require washing each hand three times. In certain instances one is only required to wash the fingers, whereas others require washing the entire hand. Sometimes water is unnecessary so long as I have cleaned my hands, yet others require water. Some hand-washings require a bracha, others do not. Sometimes one may wash by holding one’s hands under the faucet, and sometimes one must pour onto them with a cup.

What are all these washings about? Why are there so many differences among them?

We can categorize the different types of ablution under three general headings:

1. Those that Chazal instituted so that one’s hands should be clean.

2. Those that create kedusha.

3. Those that remove ruach ra, a spiritual contaminant that might have a negative affect on a person if not removed.

As I will explain, sometimes we wash for a combination of these reasons.

1. CLEANLINESS IS NEXT TO G-DLINESS

One must wash one’s hands after scratching one’s scalp, combing out lice, or touching dirt, mud, shoes, feet, or any other parts of the body that are either sweaty or usually covered (Shulchan Aruch and commentaries: Orach Chayim 4:18, 92:7; Yoreh Deah 116:4, 5). However, scratching the exposed parts of one’s hands or face is not considered as dirtying one’s hands and does not require ablution (Shulchan Aruch 4:21). The poskim dispute whether one is required to wash one hands after touching ear wax or mucous (Rama, Orach Chayim 92:7, Gra, Mor Uketziya, Shaarei Tshuvah, and Mishnah Berurah ad loc.)

The ablution after performing any of the activities just listed does not require washing three times or pouring the water from a vessel — as a matter of fact one does not even require water – all that is required is to clean one’s hands properly (Magen Avraham 92:5; Machatzis HaShekel 4:17; Chida, quoted by Kaf HaChayim 4:61). This is because our only concern is that the hands become clean, and therefore any method that cleans them is acceptable.

Someone who touched the parts of his body that are sweaty or usually covered, or whose hands are dirty, may not recite a bracha or learn Torah until he cleans his hands (Magen Avraham 227:2). However if he will not be davening or studying Torah, he need not wash his hands as quickly as possible (Mishnah Berurah 4:41). (Concerning some of the other washings mentioned earlier, the halacha is different, as we will see.)

MAYIM ACHARONIM

Another example of an ablution whose purpose is cleanliness is mayim acharonim. Because of certain safety concerns, Chazal instituted the special takanah of mayim acharonim immediately prior to benching. (It should be noted that some poskim rule that one is not required to wash mayim acharonim unless one used salt from the area of Sodom for one’s meal, and that many people follow this approach. See Shulchan Aruch Orach Chayim 181:10.)

2. KEDUSHA

A second category of ablutions are those performed to create more kedusha. Before performing any service in the Beis HaMikdash, the Torah requires the cohen to wash his hands and feet in a specially prescribed fashion. Similarly, the cohen washes his hands until his wrists before duchening. These two ablutions are so important that they both supersede the prohibition of washing on Yom Kippur! Thus, the levi pours water on a cohen’s hand until the wrist even on Yom Kippur (and Tisha B’Av afternoon in Eretz Yisroel), even though washing one’s hands past the knuckles is generally prohibited on these days.

Similarly, a cohen was (and will be) required to wash his hands before he ate (and will eat) terumah or the special challah portion. An extension of this concept of kedusha is that every Jew must wash his hands before eating regular bread.

According to some opinions, one is required to wash one’s hands before every prayer (shmoneh esrei) and even to recite a bracha on this washing (Maasei Rav). Although we do not require a bracha, one should still wash one’s hands immediately before davening, preferably by pouring water from a cup (Shulchan Aruch Orach Chayim 233:2).

3. RUACH RA

Several of the washings that we perform are to remove ruach ra, spiritual contaminants that may be harmful if not removed properly. These include:

A. Washing after clipping one’s fingernails or toe nails, or after giving or receiving a haircut (Shulchan Aruch Orach Chayim 4:18, 19 and commentaries).

B. After leaving the lavatory, bathhouse, or mikveh.

C. After contact with a corpse, such as when visiting a cemetery or attending a funeral.

D. Upon awaking in the morning (negel vasser).

In all of these instances, one should try to wash one’s hands as soon as possible (see Magen Avraham 4:18 and Pri Megadim; Eliyah Rabbah 4:12; Kaf HaChayim 4:63) in order to remove the ruach ra without delay. One should be extremely careful not to touch food without first washing away the ruach ra. However, if one did touch food prior to washing, the food is not prohibited (Shu’t Shvus Yaakov 2:105; Artzos HaChayim in Eretz Yehudah 4:30; Darchei Teshuvah 116:35).

There are different types of ruach ra, some more powerful than others, and therefore some activities require pouring water three times on each hand, while others require pouring only once on each hand (Chida, quoted by Kaf HaChayim 4:61). When the ruach ra requires more than one pouring, one should wash one’s hands alternatively to remove the ruach ra (Kaf HaChayim 4:62, Ben Ish Chai Tolados 16). that is, one washes the right hand first, then one’s left, then one’s right, and so on until each hand has been washed three times. Both right and left handed people should follow this procedure (Mishnah Berurah 4:22).

Even in the cases that require three washings, if one has only enough water to wash once he may touch food afterwards with that hand (Artzos HaChayim; Biyur Halacha 4:2 s.v. yedakdeik).

Leaving a bathhouse or mikveh, clipping nails, and giving or receiving a haircut require only one washing (Eliyah Rabbah 4:12). A person who clips someone else’s nails does not need to wash his hands (Kaf HaChayim 4:92). However, the person whose nails were clipped must wash his hands. Therefore, someone who clips a child’s nails should wash the child’s hands if the child is old enough to touch food (Kaf HaChayim 4:92). A barber needs to wash his hands after giving a haircut, since he touches people’s hair (Kaf HaChayim 4:92).

The poskim dispute whether leaving the bathroom requires washing three times or only once (Magen Avraham 7:1; Eliyahu Rabbah 4:12). There is also a dispute whether one is required to wash one’s hands after leaving our modern bathrooms. Some poskim are lenient since our bathrooms are much cleaner than old-time outhouses (Shu’t Zakan Aharon 1:1; Shu’t Eretz Zvi #110, 111; Shu’t Minchas Yitzchok 1:60). Others contend that we should treat our bathroom as a beis hakisei, the outhouse of antiquity (see Shu’t Yechaveh Daas 3:1). Both the Chazon Ish (Orach Chayim 17:4) and Rav Moshe Feinstein (Shu’t Igros Moshe, Even HaEzer 1:114) rule that we should treat our bathrooms as a safek (questionable) beis hakisei. The universal practice is to not recite brachos in the bathroom, but some people are lenient to wash their hands there. Rav Moshe rules that one may not wash for bread in our bathrooms, but one may wash his hands there before davening, although one should dry one’s hands outside the bathroom.

According to those who contend that our bathrooms should be treated the same as those of antiquity, one should wash one’s hands after leaving the bathroom even if one entered there only to retrieve something (Pri Megadim, Mishbetzos Zahav 613:2), and even if only one’s hand was inside the bathroom (Kaf HaChayim 4:65).

AFTER CONTACT WITH A MEIS (A CORPSE)

After attending a funeral, one should wash both hands three times in the above-described manner (Machatzis HaShekel 4:17). The custom recorded by early poskim is that one may not enter a building after touching or escorting a meis without first washing netilas yadayim (Rama, Yoreh Deah 376:5). After this ablution, the custom is to turn the cup upside down and put it down rather than hand it to another person (Eliyahu Rabbah 224:7; Chochmas Odom 158:30; Rabbi Akiva Eiger, Comments to Yoreh Deah 376. None of these sources cite a reason for this practice.)

In many places, the custom is to not dry one’s hands after washing after a funeral, although the poskim are uncertain as to the origin or reason for this practice (Kaf HaChayim 4:78). Many poskim rule that someone who was never within four amos (about seven feet) of the meis does not need to wash his hands (Pri Megadim, Aishel Avrohom 4:21; Kaf HaChayim 4:77) The custom is to wash anyway since the earlier poskim do not make this distinction. It also seems that all poskim would agree that being in the same room as the meis requires one to wash his hands three times.

WASHING UPON ARISING

After waking in the morning, one washes for all three reasons:

To be clean: Because a person touches private and sweaty parts of his body while sleeping.

For kedusha: Every morning a person is like a cohen who must wash from the Holy Laver before he begins doing his daily service (Shu’t Rashba #191).

To remove ruach ra: According to the Zohar, (Parshas VaYeisheiv) a ruach tumah descends upon a person while he sleeps that remains on his hands until he washes it off with three rinses.

Before presenting the unique features of this morning washing, usually called negel vasser, I need to explain the halachic differences that result from the different types of washing.

IS THERE A DIFFERENCE BETWEEN WASHING TO REMOVE RUACH RA AND WASHING TO REMOVE DIRT?

There are several halachic differences between ruach ra washings and cleanliness washings:

(a) Although one may not recite a bracha, learn Torah, or daven when one is dirty, one may recite a bracha or daven after coming in contact with ruach ra. Therefore the Magen Avraham (227:2) rules that someone who entered a bathroom without using the facilities and without touching usually covered body parts may recite a bracha, even though he should wash his hands as soon as possible because he has been contaminated by the ruach ra of the bathroom. (We mentioned before that some contemporary poskim contend that the modern bathroom does not contain ruach ra.) Similarly, someone who clipped his nails, took a haircut, exited a mikveh, or was in contact with a meis, may recite a bracha even though he or she has not yet washed his or her hands.

(b) Removing ruach ra requires washing specifically with water. It is uncertain whether one can remove ruach ra by dipping one’s hands into water, or whether it is removed only by pouring the water onto one’s hands. Someone who cannot pour water on his hands may immerse his hands into water and then daven, learn Torah or recite brachos (Shulchan Aruch 4:12). Furthermore, someone who has no water to wash after ruach ra should wipe his hands clean in the meantime. However, he should wash his hands at the first available opportunity (Pri Megadim, Aishel Avraham 4:17).

ARE THERE HALACHIC DIFFERENCES BETWEEN WASHING TO INCREASE KEDUSHA AND WASHING TO REMOVE EITHER DIRT OR RUACH RA?

We do not recite a bracha al netilas yadayim when washing one’s hands to remove ruach ra or to remove dirt. This is because washing away ruach ra is a protection, and just as one does not recite a bracha when fastening one’s seatbelt or washing mayim acharonim, so one does not recite a bracha upon removing a dangerous contaminant from one’s hands.

Out of all the numerous times we wash our hands, we recite the bracha of al netilas yadayim in only two cases:

1. Prior to eating bread.

2. When washing our hands in the morning upon arising

WHY DO WE RECITE A BRACHA WHEN WASHING OUR HANDS IN THE MORNING?

As I explained before, washing one’s hand to remove either dirt or ruach ra does not require a bracha. If so, why do we recite a bracha when washing our hands in the morning?

The Rashba (Shu’t #191) explains that a person is considered a new creation every morning and therefore washes his hands like a cohen who washes his hands before performing the daily service in the Beis HaMikdash. According to this reason, someone who stayed awake all night or slept with gloves recites a bracha when he washes his hands in the morning. Furthermore, someone who woke up before halachic daybreak (alos hashachar) should wash again after halachic daybreak since the primary reason to wash is because a new day has begun. However, someone who slept in the daytime should not recite a bracha upon washing his hands when he awakes.

The Rosh (Berachos 9:23) explains a bit differently, contending that before morning davening one washes one’s hands with a bracha since while asleep his hands may have touched the private parts of his body. According to this approach, someone who remained awake all night or slept with gloves does not need to wash his hands in the morning and certainly should not recite a bracha, unless he relieves himself. On the other hand, someone who slept in the daytime should wash his hands with a bracha upon awaking before he davens since he may have touched his body while he slept.

HOW DO WE PASKIN?

The Shulchan Aruch (Orach Chayim 4:13, 14, 15) concludes that in all of these disputed cases one should wash one’s hands, but not recite a bracha (see also Artzos HaChayim and Biyur Halacha 4:13 s.v. im). Therefore, someone who was awake all night, slept with gloves, slept during the daytime, or woke up early and washed negel vasser, should wash his hands after halachic daybreak (alos hashachar) without a bracha.

According to most poskim, someone who relieved himself before davening recites a bracha al netilas yadayim when he washes, according to both the Rosh and the Rashba, even if he did not sleep all night (Mishnah Berurah 4:30; Biyur Halacha 4:13 s.v. kol). Others contend that one should preferably have someone be motzi him with the bracha al netilas yadayim, since the Ari z”l contends that one recites a bracha on netilas yadayim only if one slept (Rav Moshe Sternbuch, Hilchos Gra Uminhagav, pg. 7).

If no cup is available, one may wash negel vasser without a cup. When one later locates a cup, one should wash again three times using a cup (Shulchan Aruch 4:7). Negel vasser must be poured into a vessel of some type or in some other place where people will not walk (Shulchan Aruch 4:8), because the ruach ra remains on the water (Be’er Heiteiv 4:8). For this reason, one may not receive any benefit from this water (Shulchan Aruch 4:9). Some have the practice not to recite a bracha or learn Torah while facing the negel vasser (Shaarei Teshuvah 4:8).

According to the Zohar, one should be careful to dispose of the water used for negel vasser carefully because it could damage people. This is different from the water used for cleaning, for netilas yadayim before eating a meal, or for mayim acharonim, which may be poured onto the floor. Therefore, when camping one should pour the negel vasser onto a slope or onto earth that will absorb it (Mishnah Berurah 4:21).

Most poskim rule that one does not need to dry one’s hands after washing negel vasser. Therefore, one may recite the bracha before one dries one’s hands. This is different from washing before eating, in which case one is required to dry one’s hands afterward.

A child who might touch food should have his hands washed with negel vasser three times (Pri Megadim, Mishbetzos Zahav 4:7; Mishnah Berurah 4:10). Many wash a child’s hands at a younger age. (Siddur Rav Yaakov Emden and Graz record washing a boy’s hands from when he is eight days old; Ben Ish Chai [Tolados, 1:3] does not mention an exact age.

One does not need to be concerned about a gentile who touches food, since there is no ruach ra on a gentile’s hands (Mishnah Berurah 4:10).

We can now address our original questions:

Question #1: I know that after clipping my nails, I must wash my hands. What happens if I hear someone recite a bracha before I have a chance to wash my hands? Do I answer amen to the bracha?

Answer: The answer is that ruach ra on my hands does not prevent me from reciting a bracha or answering amen.

Question #2: At what age should I have my baby wash negel vasser?

Answer: One should begin washing a child’s hands when he/she is old enough to begin touching food.

Question #3: Must a caterer insist that his non-Jewish employees wash negel vasser before beginning work?

Answer: One need not insist that the non-Jewish employees wash negel vasser since their touching food does not create any ruach ra.

Just as the cohanim washed their hands in the Beis Hamikdash in order to prepare themselves to perform the Divine service, so washing our hands whenever they are dirty, to remove ruach ra, or for kedusha, reminds us that we too are also constantly involved in serving Hashem.

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A Sweet Change of Pace: What Bracha Does One Recite over Chocolate-Covered Raisins?

This article was originally published in the American edition of Yated Neeman

Before answering this question, we need to ascertain the correct bracha for chocolate itself. Although the accepted practice is to recite Shehakol on chocolate bars and other products, the question is, why? After all, chocolate is the product of the bean from the cocoa tree. Shouldn’t its bracha be Borei pri ha’eitz? As we will see, many poskim indeed contend that the correct bracha on chocolate is ha’eitz, notwithstanding the minhag. We will also investigate whether there is a difference between the bracha on dark chocolate and white chocolate.

To resolve our question we must analyze what bracha one recites on fruit products that have undergone extensive processing, such as sugar, peanut butter, jams, jellies, apple sauce, and chocolate. We also need to understand something about the history and methods of chocolate production. Aside from being informative, we will discover that all this information impacts on halacha.

CHOCOLATE’S HISTORY

Chocolate is native to southern Mexico and Central America, where the Maya, and later the Aztec Indians cultivated the cocoa (also called the cacao) tree for hundreds and possibly thousands of years. In fact, the word chocolate originates from an Aztec word meaning “warm liquid.” In their society, the royal family drank warm unsweetened chocolate from golden goblets, and cocoa beans were used as currency. Thus, if a Jew had accompanied Hernando Cortez on his trip to the New World, he may have recited kiddush and havdalah over hot chocolate since it qualified there as chamar medinah, a beverage used to honor guests!

The Spaniards planted cocoa trees all over the tropical parts of the New World. Later industrialists developed vast plantations of cocoa trees in Africa, Indonesia, and other tropical areas.

The Native Americans drank their chocolate unsweetened, whereas the Spaniards added sugar to it. This created two industries in the New World, the cocoa industry and the sugar industry. By 5340 (1580), hot chocolate flavored with sugar and vanilla was a common Spanish drink, and from there it eventually spread to the rest of Europe.

As long as chocolate was drunk as a beverage, its bracha was certainly Shehakol, since we recite Shehakol on all beverages (except wine, of course), even if they are made from the five grains, such as beer and whiskey (see Tosafos, Berachos 38a s.v. Hai).

THE 19th CENTURY AND CHOCOLATE

Two major 19th century developments vastly changed the way people consumed chocolate. In 1847, an English company introduced the first solid eating chocolate. Until this time, chocolate was only drunk as a beverage.

The second development occurred in 1876 when the Swiss devised a method of adding milk to chocolate, thereby creating what we know today as milk chocolate. Prior to this invention, all chocolate was pareve. (By the way, some European manufacturers currently add animal fat to chocolate, obviously making it non-kosher.)

HOW DOES COCOA GROW?

The cocoa tree grows with large, colored fruits the size of melons or small pineapples that hang from the branches and trunk of the tree. Each huge fruit contains a sticky pulp that holds about 20-50 almond-shaped seeds that are usually called cocoa beans. The growers separate the beans from the pulp, ferment the beans for about a week, dry them in the sun, and then ship the semi-processed cocoa beans to a chocolate maker.

HOW IS CHOCOLATE MADE?

The chocolate maker roasts the beans to bring out the flavor, and then removes the shell from the bean, leaving the kernel. The kernel is ground and becomes a thick, viscous liquid called chocolate liquor. The bean turns into a liquid when it is ground because it contains over 50% fat.

Chocolate liquor contains no alcohol — that is simply the name for the ground, liquefied chocolate. Chocolate liquor is pure, bitter, unsweetened chocolate, similar to what the Aztecs drank in their time.

The chocolate maker now separates the cocoa liquor into its two main components; the fat or cocoa butter (nothing to do with the butter made from milk that we eat) and cocoa bean solids. The solids are ground into cocoa powder. The chocolate we eat consists of a mix of chocolate liquor, cocoa butter, and cocoa powder, along with several other ingredients, notably sugar and usually milk. This product is ground very finely in a machine called a “conch” to give it a smooth consistency and taste. The chocolate is then tempered, which means that it is heated slowly and then cooled slowly, to enable the chocolate to harden properly and so that the cocoa butter does not separate from the chocolate. Finally, the chocolate is flavored and shaped into the final product.

Thus before being ready to eat, chocolate has been separated, fermented, dried, roasted, shelled, ground, liquefied, separated, ground again, mixed with milk and/or cocoa butter, ground yet again in a conch, tempered, flavored and shaped.

White chocolate is made from cocoa butter, sugar, and sometimes milk. There are no cocoa solids in white chocolate and that is how in maintains its light color. Some “white chocolate” products are in reality made of vegetable oil and chocolate flavoring instead of cocoa butter.

SO WHAT BRACHA DO WE MAKE ON CHOCOLATE?

To this day, there is a dispute among poskim whether the correct bracha on chocolate is Borei pri ha’eitz or Shehakol nihyeh bidvaro. To comprehend this dispute we need to understand the halachos of fruit and vegetable products that no longer have their original consistency, such as date butter, apple sauce, jam, fruit puree, mashed potatoes, tomato paste, and peanut butter. Is the correct bracha on these items Borei pri ha’eitz (Borei pri ha’adamah in the case of some) or Shehakol nihyeh bidvaro?

The Rishonim dispute this question, many contending that even fruit that is completely pureed is still Borei pri ha’eitz, whereas a minority rule that the bracha on a fruit or vegetable that no longer has its original consistency is Shehakol.

HOW DO WE PASKIN?

The Shulchan Aruch (Orach Chayim 202:7) rules that the bracha on date butter is Ha’eitz, and this is the ruling followed by most Sefardim. Ashkenazim follow the ruling of the Rama, who contends that one should recite Shehakol because of the safek as to which opinion we should follow. In practice, Ashkenazim usually recite Borei pri ha’eitz when eating a product that has some of the consistency of the original product, as is the case of jam with recognizable fruit pieces in it or “chunky” apple sauce, but recite Shehakol before eating a completely smooth apple sauce, or a smooth jam where the fruit has completely lost its consistency (Mishnah Berurah 202:42).

However, since the reason we recite Shehakol is because it is a safek, several halachic differences result. For example, someone having a snack of apple sauce and a beverage should make sure to recite the Shehakol on the apple sauce rather than on the beverage. If one recites the Shehakol on the beverage without specifically including the apple sauce, one now has a safek whether he has fulfilled the bracha on the apple sauce. This is because according to the opinions that the bracha should be Ha’eitz, one does not fulfill the bracha by reciting Shehakol on something else.

Similarly, someone eating a fruit and apple sauce at the same time who recited Ha’eitz on the fruit should not recite Shehakol (and certainly not Ha’eitz) on the apple sauce. This is because according to the poskim who contend that apple sauce is Ha’eitz he has already fulfilled his bracha by reciting Ha’eitz on the other fruit. Instead, he should first recite Shehakol on the apple sauce and then Ha’eitz on the other fruit (Ben Ish Chai, Pinchas #16).

Some poskim are stricter, ruling that one should not eat an item that is definitely Borei pri ha’eitz together with an item that is questionably Borei pri ha’eitz, such as apple sauce. This is because there isn’t any way to fulfill reciting a bracha on both items without creating an unnecessary bracha. If one recites the bracha on the fruit first, then one has a safek as to whether he can recite a bracha on the safek item. However, if you recite the Shehakol on the safek item first, then according to the opinions that the bracha is Ha’eitz you have now recited an unnecessary bracha (Maamar Mordechai 203:3).

HOW DOES THIS DISCUSSION AFFECT CHOCOLATE?

The average person looking at a chocolate bar does not recognize the cocoa beans since the producer ground, liquefied, and reconstituted them into a solid in the process. Can one still recite Ha’eitz on the finished chocolate product or does it become Shehakol?

Many assume that the bracha on chocolate products is Shehakol based on the rulings of the Divrei Yosef and other poskim quoted by Shaarei Teshuvah (202:19). However, since all these poskim lived at the time when chocolate was only drunk, it is difficult to base any halachic conclusion on what bracha to recite before eating chocolate since we recite Shehakol on all beverages, as mentioned above.

Among the more recent poskim who discuss what bracha one should recite before eating chocolate, the two greatest poskim to discuss this issue are Rav Shlomoh Zalman Auerbach and Rav Moshe Feinstein, who reach diametrically opposite conclusions. In his Minchas Shlomoh (Vol. 1, 91:2) Rav Shlomoh Zalman suggests that one should recite Ha’eitz before eating chocolate. He compares chocolate to a case of spices ground so fine that their source is no longer identifiable. The bracha recited on these spices is whatever would have been the appropriate bracha on this spice had it been edible before grinding (that is, usually Ha’Adamah), even if the spice is mixed with sugar [and even if it is mostly sugar] (Shulchan Aruch 203:7). Let me explain this case with an example.

WHAT BRACHA DOES ONE RECITE ON CINNAMON SUGAR?

Cinnamon is the bark of a tree, and as such its bracha is Borei pri ha’adamah (we do not recite Borei pri ha’eitz since we eat the bark and not the fruit). “Cinnamon sugar” is a blend of cinnamon and sugar where the cinnamon cannot be identified by appearance, although it is clearly the more pronounced flavor. Based on the above-quoted ruling, one should recite Ha’adamah before eating cinnamon sugar.

Why are spices different from finely ground fruit and vegetables over which Ashkenazim recite Shehakol?

Since this is considered the way that one “eats” spices they do not lose their bracha even though they can no longer be identified (Mishnah Berurah 203:12).

WHAT BRACHA DO WE RECITE ON SUGAR?

As I discussed in a different article, there is a thousand-year-old dispute over whether the correct bracha one should recite before eating cane sugar is Borei pri ha’eitz, Borei pri ha’adamah, or Shehakol. The Shulchan Aruch (202:15) concludes that we recite Shehakol on sugar, however someone who recited either Borei pri ha’eitz or Borei pri ha’adamah on cane sugar should not recite a new bracha since the correct bracha is disputed (Tur, Beis Yosef, Mishnah Berurah, and Biyur Halacha ad loc.).

Originally, sugar was produced only from sugar cane. Today a large percentage of the world’s sugar crop is extracted from the sweet white root of the sugar beet. However, mass cultivation and production of sugar beets did not begin until the 19th Century and was a result of the Napoleonic Wars. When the British blockaded Napoleon’s Europe, one of the curtailed products was cane sugar, which does not grow in Europe’s cold climate. Out of concern that his subjects might revolt over the unavailability of imported sugar, Napoleon built sugar refineries throughout Europe. He even awarded a medal for perfecting the production of white sugar from the white root of the sugar beet, which thrives in cold climates.

Although Napoleon was not worried about it, Rabbonim were concerned whether the bracha over the new type of sugar was also Shehakol, just as the bracha over cane sugar. (The two types of sugar cannot be distinguished one from the other.) The Mishnah Berurah (202:76) rules that one should recite Shehakol over beet sugar, although if someone recited Borei pri ha’adamah he should not make another bracha.

Thus we see that there is a halachic difference between spices that are ground up and cannot be identified, whose bracha remains Ha’adamah, and beet sugar, whose bracha is Shehakol. We must now analyze the difference between these two foods and to figure out where chocolate fits into the picture.

BEATING A BEET

After the sugar beets ripen, they are harvested, washed thoroughly, and then sliced into thin chips. The beets are then soaked in hot water for about an hour which extracts the sugar from the beets and creates a strong sugar solution. Chalk is added to the sugar solution which causes the non-sugar parts of the solution to clump so that they can be filtered out. The sugar solution is then evaporated to concentrate the sugar. Eventually the sugar concentration is great enough to form crystals which are then removed from the solution.

An important fact affecting our halachic discussion is that in the case of both cane and beet, the sugar is extracted, or removed, from the stem or root, rather than being simply processed.

Now our question is, do we compare chocolate to spices, which maintain their bracha even after they have been ground until they are no longer identifiable, or to sugar which we paskin loses its bracha and becomes Shehakol?

Horav Shlomoh Zalman compares chocolate to the case of ground spices that maintain their original bracha although they are no longer recognizable. (Dayan Gavriel Krausz, formerly the Av Beis Din of Manchester, devotes a lengthy essay to advocate this position in his sefer Mekor Habracha.) Apparently Rav Shlomoh Zalman felt that chocolate which is refined from the cocoa bean should not be compared to sugar which is extracted from the cane or beet.

(In my opinion, those poskim who contend that the bracha on chocolate is Borei pri ha’eitz should agree that the bracha on white chocolate is Shehakol since this product contains no cocoa solids. Cocoa butter should have the halacha of a liquid that is pressed out of a fruit whose bracha is always Shehakol.)

On the other hand, when Rav Moshe Feinstein, zt”l, (Shu’t Igros Moshe, Orach Chayim 3:31) discusses what bracha to recite before eating chocolate-covered raisins, he assumes that the bracha on chocolate is Shehakol and does not entertain the possibility that its bracha might be a safek.

In Rav Moshe’s tshuvah, he addresses the following issue: When eating a food composed of items with different brachos, we must determine which food is the more important part, the ikar, and determines the bracha of the entire food. Rav Moshe deliberates whether the chocolate or the raisin is more important in order to determine whether the bracha on chocolate-covered raisins is Ha’eitz, like the raisin, or Shehakol, like the chocolate. Rav Moshe concludes that neither the chocolate nor the raisins can be considered of secondary importance (tafeil) to the other, and therefore chocolate-covered raisins require two brachos, Ha’eitz on the raisins and Shehakol on the chocolate.

Rav Moshe then discusses which of the two brachos to recite first. Usually, one should recite the bracha of Ha’eitz before reciting Shehakol. However, Rav Moshe points out that one must eat the chocolate before reaching the raisin; thus, the bracha on the chocolate will have to be first. Rav Moshe concludes that the best thing to do is to recite Ha’eitz on a regular raisin and then Shehakol on the chocolate. (When this option does not exist, he paskins that one should recite Shehakol on the chocolate and then Ha’eitz on the raisin.)

Clearly, Rav Moshe held that chocolate is definitely Shehakol and not even questionably Ha’eitz. I conjecture that he maintained that since chocolate undergoes so many changes and processes in its preparation, one should not consider the finished product as a fruit at all. Alternatively he may have held that since chocolate is liquefied and remains a liquid for most of its processing, it retains its status of being a liquid for hilchos brachos and thus the correct bracha is Shehakol. In any instance, the almost-universal minhag is to recite Shehakol before eating chocolate. (For other reasons why chocolate should be Shehakol, see Shaarei Habracha pg. 693 and Makor Habracha pgs. 52-61.)

Other poskim disagree with Rav Moshe’s psak on chocolate-covered raisins and nuts, contending that one should recite only one bracha. Among these poskim, there are two major approaches, those that hold that the bracha is always Shehakol since they consider the chocolate to be the ikar and those who feel the bracha should be determined by whichever is greater in quantity (Vezos Haberacha pg. 97; Yalkut Yosef, Vol. 3, pg 431). I refer you to your own posek to decide what bracha you should recite before eating this delicacy.

As we mentioned above, the Aztecs considered chocolate a royal food. By studying the halachos of the berachos on this food, we elevate it to being a true royal food – since we are determining what bracha the mamleches cohanim vigoy kodosh, the holy nation that is a kingdom of priests recites on this food.

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Planning in Advance – Advice for the Chesed Doer

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Sometimes performing chesed can end up causing unexpected financial distress. However, a little bit of prevention can go a long way in avoiding this unplanned mishap.

Question #1: The Automobile Delivery

Mrs. Rosenberg’s *(all names have been changed) son, Yanky, a very straight and serious yeshiva bachur, sometimes comes home from yeshiva driving cars that are not his own. He told her that he is doing a favor for a businessman who needs these cars transported from place to place. Mrs. Rosenberg wants to know if Yanky is running any risk should something happen to the cars while in transit.

Question #2: The Money Transporters

2A. Shifrah commutes to work along a route that includes two branches of a local business. The owner asked her if she could convey money back and forth between his two offices. Shifrah asks me if she bears any halachic liability while performing this favor.

2B. Yosef is traveling to Eretz Yisroel, and Mrs. Goldstein asked him to bring some Chanukah gelt to her nephew. Rabbi Friedman asked Yosef to bring some money to his daughter there, and Mr. Gordon requested that he transport money to his son. Although Yosef initially put all the money together, he later decided to separate it during the trip for added security. Upon arrival in Israel, he discovered that some of the money was stolen. Must Yosef replace the stolen funds? If he does not, how do we determine whose money was stolen?

Question #3: The Wonderful Women of N’shei.

The local N’shei chapter conducted one of their wonderful activities to raise money for tzedakah. For table décor, they borrowed some expensive vases. Sarah picked up the vases, and transported them to the hall. Rivkah was in charge of placing them on the tables, and Rochel was responsible to return them. Leah, who was in charge of final clean-up, discovered that Rochel forgot to take the vases and now finds herself in a predicament. It is too late to call anyone to find out where to take the vases. If she leaves the vases behind, no one will return them, and they will certainly be lost or broken. There is no room in her small, cramped house to keep these vases safely from her frolicking children even until she can find someone to pick them up tomorrow. What should she do? With no choice, she transports them to her own house, hoping for the best. She calls me the next day, reporting that unfortunately some of the vases were broken before she could return them. Is she liable?

In all of these cases, someone doing a big chesed may have unwittingly stumbled into a major liability. Should one avoid performing chesed because of such fears? Of course not! But one should be aware of one’s liabilities and how to limit them.

THE BASICS:

In each of the above cases, the person doing the chesed became a shomer, because he or she assumed the responsibility to take care of someone else’s object. We must first review the basic rules of shomrim, and then see how these rules apply in each of our cases.

The Torah presents us with three basic categories of shomrim:

A. The Shomer Chinam: This shomer is someone who takes care of an item without receiving any financial benefit at all, even indirectly — and who is not permitted to use the item. Although he is unpaid, this shomer is still responsible to pay for the item if it was damaged due to his negligence or if he used it for himself (which he is not allowed to), but he is not responsible if he took appropriate care and yet the item was damaged or disappeared (Shulchan Aruch Choshen Mishpat 291:1). However, even if the shomer chinam took care of the item responsibly, the owner can still request that the shomer swear an oath that he/she indeed was careful, that he/she did not use the item, and that he/she is not still holding it (Shulchan Aruch Choshen Mishpat 295:1-2).

B. The Shomer Sachar: This is anyone who takes care of an item in return for some financial benefit. This includes someone who rents something and also a craftsman who repairs an item, since in both of these cases the person is responsible to take care of the object and receives compensation for his work. A shomer sachar is responsible to pay if the item is lost or stolen, but he is not obligated to pay if the item became lost or damaged through an accident beyond his control (Bava Metzia 93a). Anyone who receives some benefit while assuming responsibility for an item is included in this category, including a repairman or a renter (Bava Metzia 80b).

C. The Sho’el: This is someone who borrows an item and receives benefit without paying. He is responsible to pay back for any damages that happen to the item, even if the damage is beyond his control. Since he is receiving benefit gratis, he is responsible to make sure that he replaces the item to its owner. There are two situations where the Sho’el is not obligated to pay, but we will not discuss them in this article.

Having discussed some of the basic halachos, let us see how these halachos affect the cases I mentioned at the beginning of this article:

Question #1: The Automobile Delivery

When Yanky Rosenberg needs to travel between cities, he often drives cars for a car dealer he knows. This arrangement seems to benefit both parties – it provides Yanky with free transportation and provides the dealer with an inexpensive driver. Mrs. Rosenberg, however, is concerned about Yanky’s potential liability . Her concerns are very valid because Yanky has the halachic status of a shomer sachar, since he receives transportation, which is definitely worth money, in exchange for transporting the vehicle. Therefore, if the car is stolen during the trip, Yanky is responsible in full for the automobile, and he is also responsible for any damage caused by his negligence. For example, if the car is involved in an accident while Yanky is driving, he is responsible for the damages if his negligence caused the accident.

After finding this out, Mrs. Rosenberg was very concerned as she does not want Yanky to be halachically responsible for the automobiles. I told her that there is a simple solution. Yanky can simply tell the car dealer that he is assuming no responsibility for the vehicles. Although the Torah rules that a shomer sachar is usually responsible for theft and similar losses, the two parties can negotiate a different arrangement if they both agree (Mishnah Bava Metzia 94a). Thus, every shomer has the right to negotiate his own deal to assume either less or more responsibility than the Torah usually assigns. If Yanky tells the automobile dealer that henceforth he is assuming no responsibility for the cars he drives and the dealer agrees, Yanky will no longer be responsible for any loss, theft, or damage caused by his negligence.

Of course, the owner may no longer want Yanky to transport the automobiles under such an arrangement. Alternatively, Yanky and the dealer may decide to negotiate an arrangement that limits Yanky’s responsibility. Whatever they decide, at least all parties will know what to expect in the event that there is an unfortunate incident.

Question #2: The Money Transporters

A neighborhood business owner asked Shifrah to transport money for him from one location to another. If Shifrah receives any compensation for this favor, such as the business owner pays for her gas, she becomes a shomer sachar who is obligated to pay for any theft, loss or negligence. If she receives nothing for her kindness, she is still a shomer chinam. Although her liability is far less, she is still responsible for the loss of the money if she is negligent. Furthermore, should the money be stolen, she may be obligated to swear an oath that she was not negligent. Since most religious people are hesitant to swear oaths, this could present a problem for Shifrah.

Should Shifrah avoid the entire issue and refrain from transporting the money?

I told Shifrah that she should tell the business owner that she assumes no responsibility for his money in any way, and that he absolves her of any need to swear if the money is lost or stolen even if she is negligent. Shifrah explained to the business owner what I had told her, and he agreed that she should carry absolutely no responsibility whatsoever for the money. Now Shifrah can transport the money as a chesed, knowing that she will incur no liability whatever happens.

Yosef, who is transporting money for people on his trip to Eretz Yisroel, did not tell Mrs. Goldstein, Rabbi Friedman or Mr. Gordon that he was not assuming responsibility for transporting funds. Thus, he was a shomer when the theft occurred. We need to determine whether he was a shomer chinam or he was a shomer sachar, who receives some benefit for being a shomer. If Mr. Gordon gave Yosef a ride home one day in the course of bringing Yosef the money, Yosef might become a shomer sachar for the entire sum of money entrusted him by Mr. Gordon if the ride was partially in exchange for transporting the money.

Even if Yosef qualifies as a shomer chinam, this does not mean that he has no liabilities. First, we must determine that he was not negligent according to halacha’s definitions. The halachic definition of negligence when taking care of money is very stringent. For example, the Gemara rules that one who is responsible for money must hide it in a place where a thief would almost certainly not find it, even if he does not hide his own money so securely. In the time of the Gemara, this meant that a shomer had to dig a deep hole in the floor of his house (remember that the floors were made of earth) and bury the money there, thus creating a hiding place that is almost impossible to locate. Storing the money anywhere else qualifies as being negligent and makes one liable. Later, when burglars began digging beneath houses in search of hidden valuables, Chazal ruled that burying valuables was considered negligent and the only responsible way to hide them was in certain specific hiding places in the wall of the house where one could not tell that the wall was hollow! (Gemara Bava Metzia 42a)

When transporting money for someone else, the Shulchan Aruch (Choshen Mishpat 291:20) rules that one must keep the money tied in a bundle in your hand or in a place that you can always have your eyes on it. However, placing someone else’s money for safekeeping in a seemingly secure place behind you, such as in a zipped-closed back pocket, is negligent. Presumably, today we would apply different definitions for what is considered a secure place. Thus, it is possible that transporting money for someone without keeping it in a money belt or some other very secure fashion may be negligent.

Even if Yosef is halachically not negligent, he still might be required to swear an oath that he secured the money appropriately and that it was stolen.

Assuming that Yosef is not responsible, we need to determine whose money was lost. This may depend on several scenarios. Where was the money put? Did he keep each person’s money in a different place? Did he keep his money together with their money?

At this point, I advised that all four parties (Yosef, Mrs. Goldstein, Rabbi Friedman and Mr. Gordon) agree to submit the shaylah to one rav who could then rule whether Yosef is obligated, and if he is not, how to divide the remaining money among the three claimants. Since they did not choose me to be their arbiter, I do not know what the final decision was.

By the way, this shaylah could have been resolved very simply if Yosef had told Mrs. Goldstein, Rabbi Friedman and Mr. Gordon that he was not assuming any responsibility for the money, as I advised Yanky Rosenberg and Shifrah to do. In this situation, one would only have to resolve how the recipients divide the remaining money.

THE WONDERFUL N’SHEI LADIES

We still need to determine which, if any, of the wonderful N’shei ladies is responsible to pay for the broken vases.

To review the case: Sarah borrowed vases for a N’shei function and transported them to the hall. Rivkah was responsible to place them on the tables, and Rochel was supposed to return them, but she forgot. Leah discovered the forgotten vases, took them home against her better judgment, and some of them were broken before she could return them. Who is liable for the vases?

Again, here too a bit of advance planning would have been very helpful. When Sarah went to borrow the vases, did she clarify that she was borrowing them on behalf of N’shei? Did N’shei authorize her to make the organization responsible? Who within N’shei can authorize making the organization responsible for borrowing an item?

If we can determine that Sarah was authorized to borrow the vases on behalf of N’shei, and the lender understood this and agreed to it, then Sarah would not be personally responsible for the vases. However, if no one clarified these issues, Sarah is the legal borrower of the vases.

Did Sarah have permission to give the vases to someone else? If she did not, then she is responsible regardless of who was subsequently negligent with the vases. However, if the lender understood that other people would be using the vases, then Sarah is not the only party responsible, and Rivkah would become responsible as soon as she began placing the vases on the tables (see Shulchan Aruch, Choshen Mishpat 291:22).

But then, you’ll tell me, Rochel should be responsible for not returning the vases!

However, here we have an interesting problem. Although Rochel forgot to pick up the vases and return them, she technically never became responsible for the vases. This is because of the following halacha in the laws of shomrim. According to most opinions, a shomer only becomes responsible when he or she picks up the item or if someone places the item in his or her jurisdiction. This is called that the shomer made a kinyan on the object. Since Rochel never picked up the vases and never made a kinyan on them, she never became responsible for them (Shitah Mekubetzes, Bava Metzia 98b, quoting Raavad; Shulchan Aruch, Choshen Mishpat 303:1).

There is a dissenting opinion that contends that the responsibility of a shomer can occur without making a kinyan on the object, but only in the following way. The shomer assumes responsibility for the item and the person who owns it or was previously responsible for it stopped assuming responsibility for the item. According to this opinion, the fact that the shomer assumes responsibility for the item and the owner walks away makes the shomer responsible (Rosh, Bava Metzia 8:15; Rama, Choshen Mishpat 340:4; see Shulchan Aruch Choshen Mishpat 291:5 who cites both opinions).

However this did not happen here, since Rochel did not assume responsibility for the vases at the time that Rivkah relinquished responsibility.

Thus, at the time that Leah found the vases on the table, no one was assuming responsibility for them. The responsible party at this moment is either Sarah, who originally borrowed them, or Rivkah, who was the last person to take responsibility. This would depend on whether the lender of the vases assumed that several people would be in charge of them. If the lender understood this, then the responsibility transferred from Sarah to Rivkah, and if not, Sarah remains the responsible party.

Thus, when Leah found the vases, she was doing a favor either for the organization, the owner of the vases, for Sarah or for Rivkah. In any of these instances, she did not want to assume responsibility, but simply wanted to save them from certain loss or damage. Does this release Leah from legal responsibility?

I have been unable to find clear sources that discuss this particular shaylah. I discussed this shaylah with some prominent poskim, and received differing opinions. One contended that Leah is indeed responsible for the vases, notwithstanding her hesitation at taking them. Another assumed that Leah is not responsible since they would have been certainly lost had she not taken them and she took them only because she felt that maybe this way they would not be destroyed.

I suggested to these wonderful women that they establish a future policy that the organization assumes responsibility for any items borrowed on its behalf, and that they arrange that any losses of this type be subtracted from the profits that the benefit brought in.

As we can see, the laws regarding responsibility for items are very complex, and sometimes lead to surprising conclusions. Among our cases, each participant was performing a chesed that could easily have created a large financial responsibility. This helps us highlight the importance of taking care of the property of others. While we certainly shouldn’t hesitate in performing acts of chesed, recognizing and preparing for the halachic ramifications of our actions is undoubtedly worthwhile. Of course, if one’s act of kindness unfortunately results in an unexpected predicament, he or she should not regret the act of chesed performed but rather accept to better protect oneself in the future.

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Do Clothes Make the Kohen?

In the year 5017 (1257), several hundred Baalei Tosafos, led by Rav Yechiel of Paris, left Northern France on a journey to Eretz Yisroel. Rav Eshtori HaParchi, the author of Kaftor VaFarech, who lived two generations later, records a fascinating story (Vol. 1, page 101 in the 5757 edition) he heard when he went to Yerushalayim to have his sefer reviewed by a talmid chacham named Rav Baruch. Rav Baruch told him that Rav Yechiel had planned to offer korbanos upon arriving in Yerushalayim! Rav Eshtori writes that he was too preoccupied with his sefer at the time to realize that there were several halachic problems with Rav Yechiel’s plan. In Kaftor VaFarech he mentions some of his own concerns; in addition, later poskim discuss many other potential difficulties. Among the concerns raised is identifying several of the materials necessary for the kohanim’s vestments.

VESTMENTS OF THE KOHEN

The Torah describes the garments worn by the kohanim in the Beis HaMikdash as follows: “Aharon and his sons shall don their belt and their hat, and they (the garments) shall be for them as kehunah as a statute forever,” (Shemos 29:9). The Gemara (Zevachim 17b) deduces, “When they wear their special vestments, they have the status of kehunah. When they are not wearing these vestments, they do not have this status.” This means that korbanos are valid only if the kohen offering them attires himself correctly.

The regular kohen (kohen hedyot) wears four garments when performing service in the Beis HaMikdash; three of them, his undergarment, his robe, and his turban are woven exclusively from white linen. The Torah never describes how one makes the fourth garment, the kohen’s avneit, or belt, but it does mention that the belt worn by the kohen gadol on Yom Kippur is woven exclusively from linen, whereas the one he wears the rest of the year also contains techeiles, argaman, and tola’as shani, different colored materials that I will describe shortly. The Gemara cites a dispute whether the kohen hedyot’s belt also includes these special threads or whether he wears one of pure linen (Gemara Yoma 6a, 12a, 69a) The Rambam concludes that the regular kohen’s avneit includes threads of techeiles, argaman, and tola’as shani (Hilchos Klei HaMikdash 8:2).

Assuming that Rav Yechiel also concluded that the regular kohen’s avneit includes techeiles, argaman, and tola’as shani, his proposal to offer korbanos required proper identification of these materials, a necessary prerequisite to offer korbanos. This article will be devoted to the fascinating questions that we must resolve to accomplish this task.

ARGAMAN

What is argaman?

The Midrash Rabbah (Naso 12:4) reports that argaman is the most valuable of these four threads and is the color of royal garments. The Rishonim dispute its color , the Rambam ruling that it is red, whereas the Raavad understands that it is multicolored cloth woven either from different species or of different color threads (Hilchos Klei HaMikdash 8:13). The Raavad explains that the word argaman is a composite of arug min, meaning woven of different types. This approach appears to be supported by a pasuk in Divrei HaYamim (II, 2:6) that lists argavan, rather than argaman, as the material used in building the Beis HaMikdash (see also Daniel 5:7; Rashi to Divrei HaYamim II, 2:6). The word argavan seems to be a composite of two words arug gavna meaning woven from several colors, an approach that fits the Raavad’s description much better than it fits the Rambam’s (see Ibn Ezra to Shemos 25:4).

The Raavad’s approach that argaman is multicolored is further supported by a comment in the Zohar (Parshas Naso) that describes argaman as multicolored. However, the Radak (to Divrei HaYamim II, 2:6) understands the word argavan according to Rambam’s approach, and Kesef Mishneh similarly states that the primary commentaries followed Rambam’s interpretation. The Rekanti (Shemos 25:3) quotes both approaches but implies that he considers the Raavad’s approach to be primary.

By the way, the Ibn Ezra (Shemos 25:4) implies that argaman might have been dyed silk rather than wool, whereas most opinions assume that it is wool (Rambam, Hilchos Klei HaMikdash 8:13; Rashi, Shemos 25:4; 26:1; Rashbam, Shemos 25:4). Rabbeinu Bachya (Shemos 25:3) contends that silk could not have been used for the mishkan or the Beis HaMikdash since it is manufactured from non-kosher species. This is based on the Gemara Shabbos 28a that non-kosher items may not be used for mitzvos. I will discuss this point further below.

IS ARGAMAN A COLOR OR A SOURCE?

It is unclear if the requirement to use argaman thread means that the thread used for the kohen’s belt must be a certain shade of color, or whether it must be dyed with a specific dye. Rambam implies that the source for the argaman color is irrelevant. These are his words:

“Argaman is wool dyed red and tola’as shani is wool dyed with a worm” (Hilchos Klei HaMikdash 8:13). (The Rambam explains elsewhere what he means when he says “dyed with a worm.” It should also be noted that the Hebrew word tola’as, which is usually translated worm may include insects and other small invertebrates.) The Rambam’s wording implies that the source of the argaman dye is immaterial as long as the thread is red. Thus, there may be no halachically required source for the dye, provided one knows the correct appearance of its shade.

TOLA’AS SHANI

One of the dye colors mentioned above is tola’as shani. In addition to its use for dyeing the kohen’s belt and some of the Kohen Gadol’s vestments, tola’as shani was also used for some of the curtains in the Mishkan and the Beis HaMikdash, in the manufacture of the purifying ashes of the parah adumah (Bamidbar 19:6) and for the purifying procedure both of a metzora and of a house that became tamei because of tzaraas (Vayikra 14:4, 49).

Tola’as shani is a red color (see Yeshaya 1:18). This presents us with a question: According to the Rambam that argaman is red of a nondescript source, what is the difference between the shade of argaman and that of tola’as shani? The Radak (Divrei HaYamim II 2:6) explains that they are different shades of red, although he provides us with no details of what this difference entails.

Must tola’as shani be derived from a specific source, or is it sufficient for it to be a distinctive shade of red, just as I suggested above that argaman is a color and not necessarily a specific dye source?

The words of the Rambam that I quoted above answer this question: “Argaman is wool dyed red and tola’as shani is wool dyed with a worm.” These words imply that although argaman can be used from any source that produces this particular color, tola’as shani must be from a very specific source.

A WORM BASED DYE

Can the pesukim help us identify what is tola’as shani? The description of tola’as, which means worm, implies that the source of this dye is an invertebrate of some type. For this reason, some authorities seem to identify tola’as shani as “kermes,” a shade of scarlet derived from scale insects or some similar animal-derived red color (see Radak to Divrei HaYamim II 2:6). Support for this approach could be rallied from a pasuk in Divrei HaYamim (II 3:14) which describes the paroches curtain that served as the entrance to the kodoshei hakodoshim, the Holy of Holies of the Beis HaMikdash, as woven from the following four types of thread: techeiles, argaman, karmil, and butz, which is linen. The Torah in describing the same paroches refers to it as made of techeiles, argaman, tolaas shani, and linen. Obviously, karmil is another way of describing tola’as shani (Rashi ad loc.). Similarly in Divrei HaYamim II (2:13), when describing the artisans sent by the Tyrian King Hiram to help his friend King Shlomo, the pasuk mentions karmil as one of the materials in place of tola’as shani. Thus, karmil, a word cognate to kermes, is the same as tola’as shani (see Radak to Divrei HaYamim II 2:6).

However as I mentioned above, Rabbeinu Bachyei takes issue with this approach, insisting that only kosher species may be used for building the mishkan and the garments of the kohanim. He bases his criticism on the Gemara (Shabbos 28a) that states that “only items that one may eat may be used for the work of heaven,” which teaches that only kosher items may be used in tefillin manufacture. How does this fit with the description of tola’as shani as a worm derivative?

The Rambam states that the dye called tola’as shani does not originate from the worm itself but from a berry that the worm consumes (Hilchos Parah Adumah 3:2; see Rashi to Yeshaya 1:18 who explains it similarly).

Although this is probably the primary approach we would follow in a halachic decision, we cannot summarily dismiss those who identify tola’as shani as kermes or a different invertebrate-based dye. Although Rabbeinu Bachya objects to a non-kosher source for tola’as shani, those who accept that its source is kermes have several ways to resolve this issue. One possibility is that this halacha applies only to a substance used as the primary item to fulfill the mitzvah but not if it serves only as a dye (Shu”t Noda Bi’Yehudah 2, Orach Chayim #3).

Others resolve the objection raised by Rabbeinu Bachya by contending that the color derived from these non-kosher creatures may indeed be kosher. Several different reasons have been advanced to explain this approach. Some contend that this coloring is kosher since the creatures are first dried until they are inedible or because a dead insect dried for twelve months is considered an innocuous powder and no longer non-kosher (see Shu”t Minchas Yitzchak 3:96:2). (The halachic debate on this issue actually concerns a colorant called carmine red that is derived from a South American insect called cochineal. This color, which is derived from the powdered bodies of this insect, is used extensively as a “natural red color” in food production. To the best of my knowledge, all major kashrus organizations and hechsherim treat carmine as non-kosher, although I have read teshuvos contending that it is kosher.)

A similar approach asserts that kermes dye is kosher since it is no longer recognizable as coming from its original source (Pesil Techeiles, pg. 48 in the 1990 edition). This approach is based on a dispute among early poskim whether a prohibited substance remains non-kosher after its appearance has completely transformed. The Rosh (Berachos 6:35) cites Rabbeinu Yonah who permitted using musk, a fragrance derived from the gland of several different animals, as a flavor because it has transformed into a new substance that is permitted. The Rosh disputes Rabbeinu Yonah’s conclusion, although in a responsum (24:6) he quotes Rabbeinu Yonah’s approach approvingly.

It is noteworthy that this dispute between the Rosh and Rabbeinu Yonah appears to be identical to a disagreement between the Rambam and the Raavad (Hilchos Klei HaMikdash 1:3) in determining the source of the mor, one of the ingredients burnt as part of the fragrant ketores offering in the Beis HaMikdash (see Shemos 30:23). The Rambam rules that mor is musk, which he describes as the blood of an undomesticated Indian species. (Although the Rambam calls it blood, he probably means any body fluid.) The Raavad disagrees, objecting that blood would be used in the Beis HaMikdash, even if it was derived from a kosher species, certainly of a non-kosher one. In explaining the Rambam’s position, Kesef Mishneh contends that once musk is reduced to a powder that bears no resemblance to its origin it is kosher. Thus, the disagreement between the Rambam and the Raavad as to whether a major change of physical appearance changes the halachos of a substance may be identical to the dispute between Rabbeinu Yonah and the Rosh. It turns out that the Radak, who implies that tola’as shani derives from non-kosher invertebrates, may also accept the approach of Rabbeinu Yonah.

Some authorities have a different approach that would explain how tola’as shani may be acceptable for Beis HaMikdash use even if it derives from a non-kosher source. They contend that the rule prohibiting the use of non-kosher items applies only to tefillin and other mitzvos that utilize kisvei hakodesh, holy writings, but does not apply to most mitzvos or to items used in the Beis HaMikdash (Shu”t Noda Bi’Yehudah 2, Orach Chayim# 3; cf. Magen Avraham 586:13). This approach requires some explanation.

The Gemara states that tefillin may be manufactured only from kosher substances, deriving this halacha from the following verse: Limaan tihyeh toras Hashem b’ficha, in order that the law of Hashem should always be in your mouth (Shemos 13:9); i.e., whatever is used for the Torah of Hashem must be from kosher items that one may place into one’s mouth. In order to resolve a certain question that results from the Gemara’s discussion, some authorities explain that this halacha refers only to items that have words of the Torah or Hashem’s name in them, such as tefillin, mezuzos or a sefer torah, but does not include the garments worn by the kohen hedyot in the Beis HaMikdash, which do not contain Hashem’s name (Shu”t Noda Bi’Yehudah II, Orach Chayim #3). (The halacha requiring kosher substances would still apply to the tzitz and the choshen, garments of the kohen gadol, both of which have Hashem’s name.)

TECHEILES

The next material or shade we need to identify, the techeiles, is also a factor in the wearing of our daily tzitzis. Indeed, the Torah requires us to wear techeiles threads as part of this mitzvah. Nevertheless, Jews stopped wearing techeiles about 1300 to 1500 years ago and with time its source became forgotten. Although the Gemara (see Menachos 42b) mentions a creature called chilazon whose blood is the source of techeiles and even discusses how to manufacture the dye, the use of techeiles ended some time after the period of the Gemara. The Midrash states that “now we have only white tzitzis since the techeiles was concealed” (Midrash Tanchuma, Shelach 15; Midrash Rabbah, Shelach 17:5), which implies that Hashem hid the source for the techeiles. Indeed some poskim interpret the writings of the Arizal as saying that techeiles should not be worn until moshiach comes (Shu”t Yeshuos Malko #1-3).

ATTEMPTS TO IDENTIFY THE TECHEILES

In 5647 (1887), the Radziner Rebbe, Rav Gershon Henoch Leiner, zt”l, published a small sefer, Sefunei Temunei Chol, which concluded that the mitzvah of wearing techeiles applies even today. In his opinion, the Midrash quoted above means that techeiles will become unavailable, but we are both permitted and required to wear it. Based on his analysis of every place the Gemara mentions the word chilazon, the Radziner drew up a list of eleven requirements whereby one could identify the chilazon and concluded that if one locates a marine animal that meets all these requirements, one may assume that it is the chilazon. He then traveled to Naples, Italy, to study marine animals that might meet all the requirements of techeiles, and concluded that a squid-like creature called the cuttlefish, which in many languages is called the inkfish, is indeed the chilazon from which one produces techeiles. The Radziner then published his second volume on the subject, Pesil Techeiles, in which he announced his discovery of the chilazon and his proofs why the cuttlefish meets all the requirements of the chilazon. Subsequently, the Radziner published a third volume, Ayn HaTecheiles to refute those who disagreed with him.

The Radziner attempted to convince the great poskim of his generation to accept his thesis, particularly, Rav Yitzchok Elchonon Spector (the Rav of Kovno and the Posek HaDor at the time), the Beis HaLevi (then the Rav of Brisk), Rav Yehoshua Kutno (author of Yeshuos Malko, the Rav of Kutno), the Maharil Diskin (who had been Rav of Brisk and was living in Yerushalayim), and Rav Shmuel Salant (the Rav of Yerushalayim). None of these Rabbonim accepted the Radziner’s proposal, although the Maharsham, the posek hador of the time in Galicia, felt that the Radziner’s approach had merit and wore a talis with the Radziner’s techeiles, although apparently only in private. Nowadays, only Radziner Hasidim and some Breslever Hasidim wear the techeiles that the Radziner introduced.

Some later authorities have attempted to identify the techeiles as being one of several varieties of sea snail, although the objections raised by the generation of poskim of the Radziner’s own time apply to these species as well. (Several years ago, I discussed their position and the position of their opponents.)

Among the many objections to both of these identifications of the chilazon is the contention that neither the cuttlefish nor a snail could possibly be the source of the techeiles since they are not kosher. In addition to the reasons I mentioned above, the Radziner presents a novel approach to explain why techeiles may derive from a non-kosher source. He contends that although the flesh of a non-kosher fish is forbidden min hatorah, the blood of a non-kosher species is forbidden only miderabbanan. Since min haTorah one may eat this blood, it is permitted as a source for a kosher dye.

It is noteworthy that a nineteenth century posek, Rav Tzvi Hirsch Kalisher, contended that the garments of the kohen do not require chilazon as the dye source, only the color of techeiles. In his opinion, chilazon dye is only necessary for tzitzis. (He based this approach on the wording of the Rambam in Hilchos Tzitzis 2:1-2.) In Rav Kalisher’s opinion, one may dye the threads of the avneit the correct techeiles color and perform the service. However, not all poskim accept this interpretation but require the specific dye source of chilazon to dye the vestments (Likutei Halachos, Zevachim Chapter 13, pg. 67a in the original edition).

In review, we know for certain is that the regular kohen (kohen hedyot) wears four garments when performing service in the Beis HaMikdash, including the avneit, or belt, which the Rambam rules includes threads of techeiles, argaman, and tola’as shani. In identifying these materials, however, we have a dispute whether the techeiles derived from chilazon is necessary for offering korbanos, or merely dyeing clothes the appropriate color, a second dispute whether the chilazon has been hidden until Moshiach comes, and a third dispute whether the chilazon must be kosher or not. In identifying the argaman, we are faced with a dispute between Rishonim whether its color is red or a mix of different colors. And in identifying the tola’as shani, we face a dispute whether its source is a berry that worms eat or a worm of some type. All these questions will need to be resolved before we can again manufacture kosher bigdei kehunah, either by having Eliyahu Hanavi teach us how the bigdei kehunah were made or by having the poskim of Klal Yisroel determine what the halacha is.

Several earlier poskim devoted much time and energy into clarifying the correct procedures to offer korbanos because of their intense desire to bring sacrificial offerings. Do we too have such a burning desire to see the Beis HaMikdash rebuilt speedily in our days? May we soon merit seeing the kohanim offering the korbanos in the Beis HaMikdash in purity and sanctity, Amen.

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What I Borrow, I Must Surely Return

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

SHE’EILAH VS. HALVA’AH

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

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

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

OTHER DIFFERENCES BETWEEN SHE’EILAH AND HALVA’AH

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

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

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

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

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

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

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

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

RESPONSIBILITIES OF A BORROWER

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

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

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

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

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

CAN I LIMIT MY RESPONSIBILITY?

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

Can we arrange to absolve the borrower from this responsibility?

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

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

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

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

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

DOES THIS ARRANGEMENT NEED TO BE IN WRITING?

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

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

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

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

WHEN IS A BORROWER NOT RESPONSIBLE FOR DAMAGE?

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

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

BE’ALAV IMO

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

This rule sounds very strange. What is its rationale?

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

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

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

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

MEISAH MACHMAS MELACHA

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

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

A LOANED CAT

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

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

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

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

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

A FEW UNFAMILIAR HALACHOS ABOUT BORROWING

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

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

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

RETURNING THE BORROWED ITEM

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

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

BORROWING COLLATERAL

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

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

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

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

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

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