Hatzalah and Radios

clip_image002In a different article, I explained that one must desecrate Shabbos even if there is only a slight possibility of pikuach nefesh, a life-threatening emergency. One does not need a professional opinion that the situation is dangerous – on the contrary, if a lay person is uncertain whether the situation is dangerous or not, one desecrates Shabbos first and asks questions later (Shu”t Tashbeitz 1:54). Furthermore, the rav of a community and the halachic media are responsible to publicly teach these halachos so that people know them thoroughly. If people ask what to do, it indicates that the rav has been negligent in teaching these halachos (Yerushalmi, Yoma 8:5 and Korban HaEidah ad loc.). To quote Shulchan Aruch (Orach Chayim 328:2): “It is a mitzvah to desecrate Shabbos for a dangerous illness. He who does so swiftly is praised; the person who asks what to do is a shedder of blood!” Shulchan Aruch (Orach Chayim 328:13) reiterates, “Whoever is swift in desecrating Shabbos in a matter that involves danger is praised!

Please note that this rule applies equally on weekdays! If someone is uncertain whether a particular situation is life threatening or not, he/she must immediately seek proper medical attention. Delaying might be bloodshed!

This is the basic reason for the creation of Hatzalah; experience has proven that those motivated to save lives because of their devotion to mitzvos act much swifter and more devotedly than official emergency squads. Those curious to research Rav Moshe Feinstein’s instructions to Hatzalah will enjoy reading Shu”t Igros Moshe, Orach Chayim 4:80 and 5:25.

THE HATZALAH RADIO ON SHABBOS

As mentioned above, in every situation of pikuach nefesh one is required to act as swiftly as possible to save lives. Therefore someone responding to a call that might involve a life threatening situation must bring along his radio in case he needs to summon an ambulance or other assistance. The question that we are discussing here is whether one may carry or wear a Hatzalah radio when no emergency exists in order to be available should the need arise. This involves shaylos of muktzah and carrying on Shabbos.

IS A RADIO MUKTZAH? MAY ONE CARRY IT ON SHABBOS?

Of course, everyone’s immediate reaction is, “Of course, a radio is muktzah and may not be moved on Shabbos.” However, although it is definitely true that one may not move a radio on Shabbos for no purpose; carrying a Hatzalah radio may be permitted on Shabbos as I will explain. To understand this question, we first need an introduction to the basic laws of muktzah.

THE ORIGINS OF MUKTZAH

In the period of the construction of the second Beis HaMikdash, Nechemiah noticed that many Jews were extremely lax in Shabbos observance. In his own words, “In those days, I saw people in Judea operating their winepresses on Shabbos and loading their harvest on donkeys; and also their wine, grapes, and figs and all other burdens; and transporting them to Yerushalayim on Shabbos… the Tyrians would bring fish and other merchandize and sell them to the Jews” (Nechemiah 13:15-16). Nechemiah then describes how he succeeded in closing the city gates the entire Shabbos in order to keep the markets closed.

To strengthen Shabbos observance, Nechemiah established very strict rules concerning which utensils one may move on Shabbos. These rules form the foundation of the halachos of muktzah (Gemara Shabbos 123b). Initially, he prohibited using and moving virtually all utensils, excluding basic eating appliances such as table knives. We will call this Nechemiah’s “Original Takanah.” By prohibiting the moving of items even indoors he reinforced the strictness of not carrying outdoors on Shabbos (Gemara Shabbos 124b; Raavad, Hilchos Shabbos 24:13). Furthermore, the laws of muktzah shield people from mistakenly performing forbidden activities with these tools. In addition, these laws create a Shabbos atmosphere that is qualitatively different from the rest of the week even for an individual whose daily life includes no manual activity (Rambam, Hilchos Shabbos 24:12-13).

As the Jews upgraded their Shabbos observance, Nechemiah gradually relaxed the rules of muktzah, permitting limited use of some tools on Shabbos. These were Nechemiah’s Second Takanah, Third Takanah, and Fourth Takanah, the details of which the Gemara discusses (Shabbos 123b). Eventually, Nechemiah established rules whereby one may move and use most utensils on Shabbos when necessary, whereas objects that one would never utilize on Shabbos remained prohibited (except for unusual circumstances such as danger). When discussing the halachos of muktzah as they apply today, I will refer to Nechemiah’s “Final Takanah.”

THE CATEGORIES OF MUKTZAH

Nechemiah’s Final Takanah established four distinct categories:

1. Non-muktzah: Items that one may move without any reason whatsoever. This category includes food, sifrei kodesh and, according to many authorities, tableware (Mishna Berurah 308:23) and clothing (see Shitah La’Ran, Shabbos 123b s.v. Barishonah). Nechemiah never included these items even in his original, very strict Takanah, because they are in constant use.

2. Kli she’me’lachto l’heter is a utensil whose primary use is permitted on Shabbos, such as a chair or pillow. One may move this utensil if one needs to use it, if it may become damaged, or if it is in the way. (The Gemara calls this last case l’tzorech m’komo, literally, to use its place.) I may not move a kli she’me’lachto l’heter without any reason or even to help me perform a task I could perform without any tool (Gemara Shabbos 124a; Shaar HaTziyun 308:13). (I find that people are often surprised to discover this halacha.)

3. Kli she’me’lachto l’issur is a tool whose primary use is forbidden on Shabbos, such as a hammer, saw, or needle. One may move these items only if they are in the way or if one has a Shabbos-appropriate purpose for them, such as using a hammer to crack open a coconut or a needle to remove a splinter (Mishnah Shabbos 122b and Gemara Shabbos 124a). (However, one should be careful not to intentionally cause bleeding [Magen Avraham 328:32; see also Biur Halacha 308:11] and one may not sterilize the needle first [see Rambam, Hilchos Shabbos 12:1].) One may remove a kli she’me’lachto l’issur that was left on a table, counter, or chair, if one needs to put something else there. However, under normal circumstances, one may not move a kli she’me’lachto l’issur if one is concerned that it may become damaged where it was left. Nevertheless, if one knows that he will need to use a kli she’me’lachto l’issur later that day and is afraid that it will be stolen, broken or ruined and unusable by then, he may save it (Tehillah LeDavid 308:5). This is because making sure that it is available for later use is considered using it.

4. Completely Muktzah. These are items that one may not move at all under normal circumstances. For our purposes, we will subdivide this category into two general sub-categories:

4A: Items that do not qualify as utensils or food at all, such as money, living animals, sticks and stones.

4B: Utensils that one has no reason to move on Shabbos, such as merchandize that one intends to sell.

4C: A possible third category:

According to many authorities, another category of muktzah utensils includes utensils whose use is only for prohibited purposes on Shabbos. In other words, one may move a kli she’me’lachto l’issur only when this specific utensil has an occasional use that is permitted on Shabbos, such as a hammer, which someone might use to open a coconut, or a pot, which although primarily used to cook food, is also used to store food after it is cooked. However, some poskim prohibit moving a candle on Shabbos, although it is halachically considered a “utensil,” since it is not suitable for any permitted use on Shabbos at all. These poskim contend that this type of utensil is considered muktzah and may not be moved even if it is in the way (see Pri Megadim, Aishel Avraham 279:12; Aruch Hashulchan 279:1; based on Tosafos, Shabbos 36a s.v. Ha Rabbi Yehudah and Baal HaMaor, Shabbos 154b). However, other poskim consider a candle and any other utensil to not always be muktzah, contending it may be moved if it is in the way or it has a Shabbos purpose (Magen Avraham 308:18; based on Rashba, Shabbos 154b).

DIFFERENCES BETWEEN KLI SHE’ME’LACHTO L’HETER AND SHE’ME’LACHTO L’ISSUR

After Nechemiah’s later takanos, both kli she’me’lachto l’heter and kli she’me’lachto l’issur have an interesting status: sometimes they are muktzah and sometimes not, depending on why one wants to move them. Both a kli she’me’lachto l’issur and a kli she’me’lachto l’heter may be moved if one needs the use of the appliance.

There are several halachic differences between a kli she’me’lachto l’issur and a kli she’me’lachto l’heter, most of which are not germane to our discussion about Hatzalah radios. However, there is one halachic distinction that is germane, as we will see: One may carry a kli she’me’lachto l’heter early in the day even though he does not anticipate needing it until much later that day (Taz 308:2). This is considered as using the kli. On the other hand, a kli she’me’lachto l’issur may only be picked up when one actually needs to use it (with the exception of when one is concerned that it may be broken or stolen as I mentioned earlier).

WHAT IS A RADIO?

Having explained the different categories of muktzah, under which category does a Hatzalah radio fit?

Clearly it does not fit into the first category of items that are excluded from the laws of muktzah and may be moved without any reason.

One could conceivably categorize a Hatzalah radio under the category of items that have no purpose on Shabbos since a radio under normal non-pikuach nefesh circumstances is not used on Shabbos. One who holds this way would still permit carrying the radio when there is an emergency; the shaylah is only whether one may carry the radio when there is no emergency.

It is far more likely that we should consider a Hatzalah radio either kli she’me’lachto l’issur because its typical use is prohibited on Shabbos or as a kli she’me’lachto l’heter because realistically one may need it on Shabbos. (One might categorize a Hatzalah radio as similar to a bris milah knife, which is usually considered muktzah, yet many poskim rule that it is not muktzah if the mohel has a bris to perform on Shabbos.) I want to point out that according to both of these approaches, one may carry the Hatzalah radio when one may need to use it, and one may move it if it may become stolen or broken and he may need it later today.

Also, as all Hatzalah volunteers know, one may only use the radio on Shabbos when a potential pikuach nefesh emergency exists and only to the extent necessary for the emergency.

ANTICIPATING EMERGENCIES

Until this point I have been discussing to what extent the Hatzalah radio is muktzah. We have not yet discussed whether wearing the radio is considered carrying and therefore forbidden outside an eruv when no emergency exists. In a future article I hope to address the question of whether one may supersede violations of the Torah because of the possibility that a pikuach nefesh situation may develop. For now, we will simply analyze whether one may wear a Hatzalah radio in a place that is not enclosed by an eruv.

CARRYING THE RADIO ON SHABBOS WHERE THERE IS NO ERUV

The Mishnah (Shabbos 63a) records a dispute between Rabbi Eliezer and the Chachamim whether one may carry weapons on Shabbos when there is no pikuach nefesh to carry them. Rabbi Eliezer rules that a man may carry a weapon outside an eruv on Shabbos because he considers it a tachshit, decorative attire. Although weapons are not inherently nice looking, since men wear weapons as a sign of importance they are considered tachshitin. The Chachamim disagree, noting that in the days of Moshiach men will no longer ornament themselves with weapons; therefore, they are not inherently tachshitin (Gemara Shabbos 63a). The Chachamim rally support to their approach from a famous pasuk, “And they shall pound their swords into plowshares, and their spears into pruning hooks (Yeshaya 2:4),” demonstrating that in the times of Moshiach weapons will be meaningless. If weapons were indeed tachshitin, men in the Moshiach era would not destroy them.

In a teshuvah addressed to Hatzalah, Rav Moshe Feinstein (Shu”t Igros Moshe, Orach Chayim 4:81), permits Hatzalah members to wear radios on Shabbos clipped to their belts. Rav Moshe contends that one sees from the above-quoted Gemara that an item might be a tachshit even though it is not a garment and has no real aesthetic function, but is worn to show prominence. Although the Chachamim disagreed with Rabbi Eliezer’s ruling that a weapon is a tachshit, this is because they proved from the pasuk that weapons do not show inherent importance since they will have no value after Moshiach. However, a different item that shows importance, or is an identification of one’s profession, is considered a tachshit and may be carried on Shabbos, even according to the Chachamim. Rav Moshe contends that the Hatzalah radio shows that the wearer is involved in this important mitzvah of saving lives and is a badge of honor; it therefore qualifies as a tachshit. Similarly, according to Rav Moshe, a physician or medical student may walk the streets with a stethoscope draped around his or her neck since it is a sign of that he/she is qualified to practice a well-respected profession.

Others disagree with Rav Moshe’s comparing the Hatzalah radio to a weapon, contending that a weapon is indeed sometimes worn as a tachshit, as in the wearing of a military dress uniform in which a sword is part of the attire. However, Hatzalah volunteers do not wear the radio as an ornament (Rav Shimon Schwab).

Some rabbonim suggested a different approach to transport the Hatzalah radio, by making it part of one’s functional garment. To fulfill this approach, a Shabbos belt was designed in which the radio actually held the belt together. When removed the belt would fall off; thus, these rabbonim hold that this is a permitted method of carrying the Hatzalah radio (Nishmas Avraham, 5:175).

Others feel that since the radio is not really usually part of the belt, but is a separate valuable piece of equipment, including it in a belt as described above does not make it part of the belt (Rav Yehoshua Neuwirth; see Shemiras Shabbos KeHilchasah 18:33). They would require a different means of transporting a radio on Shabbos, although they may agree to Rav Moshe’s psak that it may be clipped in the normal fashion to one’s belt.

Thus, the result is that one chapter of Hatzalah allows, or even insists, that its members wear radios clipped in the usual fashion on Shabbos, whereas others may insist that their members wear their radios in a “Shabbos belt.” All rabbonim and chapters agree that when following up an emergency the Hatzalah volunteer may carry his radio and must do so if it is necessary for the emergency.

Certainly each Hatzalah chapter should follow the instructions of its local rabbonim. As I mentioned earlier, the critical point to remember when faced with a Shabbos emergency that is beyond one’s expertise is to act first and ask questions later, and follow the instructions of those who are more medically knowledgeable.

The author thanks his brother, Rav Yehoshua Kaganoff of Passaic, NJ, as the source for many of the halachic opinions quoted in this article.

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May a Non-Jew Own a Nectarine Tree? For That Matter, May a Jew?

clip_image002Recently I received the following query:

“I am not Jewish, but I observe the laws of Noahides as recorded in the writings of Maimonides, which I have read in the Yale University translation. I am aware that a gentile may not graft one species of tree onto another. Does owning a nectarine tree violate this prohibition? I would be greatly appreciative if you could answer this question since I have just purchased a house with a nectarine tree in the yard.

Sincerely,

Jacqueline Baker

250 Washington Blvd.

Asheville, NC” (name and address have been changed)

Many of us reading the heading may have wondered, “If I am permitted to eat nectarines, why shouldn’t I own a nectarine tree?” Although the answer to this question is fairly straightforward, there are many other issues that need clarification before we can answer Jacqueline’s shaylah.

First, let us explain the halachos of tree grafting applicable to Jews.

Sadly, because many Jews are unfamiliar with these halachos and unaware of the prevalence of grafted trees, they often unwittingly violate these laws.

Also, most people misunderstand the prohibition against kilayim, which is often translated as “mixed species.” People often misunderstood this to mean a prohibition against hybridization or cross-breeding. Although it is true that the Torah prohibits crossbreeding different species of animal, virtually all other types of forbidden kilayim have nothing at all to do with hybridization. First, we will list the six types of prohibited mixtures, called kilayim.

1. Wearing shatnez, which is a mix of wool and linen.

2. Cross-breeding two animal species.

3. Using two animal species to haul or work together. This mitzvah is usually called lo sacharosh, do not plow with an ox and a donkey together.

4. Grafting different tree species. A sub-category of this prohibition is planting one species on top of or inside another species.

5. Planting other crop species in a vineyard. (“Crop” in this article refers to any non-woody edible plant, such as vegetables, beans, wheat, poppyseed, etc.) 6. Planting two crop species together or near one another. Kilayim does not apply to species that are not eaten.

Although we usually assume that the word kilayim means “mixture,” some commentaries explain that this word originates from the same Hebrew root as the word “prison,” beis ke’le. Thus Rav Hirsch (Vayikra 19:19) explains that the root word ke’le means to keep or hold something back, and that the plural form kilayim is similar to yadayim or raglayim and means a pair. Therefore the word kilayim means to pair together two items that should be kept apart.

In order to explain the prohibition against grafting trees, the subject of our article, I will first provide some scientific background for city dwellers like myself, who know almost nothing about gardening and horticulture. Having been a city slicker almost my whole life, I freely admit that I knew little about this subject until I did some research in order to understand the halacha.

Hybridization (cross-breeding) of plants occurs when one pollinates the flower of one species with pollen from a different species. However, most of the prohibitions of kilayim have nothing to do with cross-breeding species. In the case of “herbaceous plants,” that is plants other than trees and shrubs, kilayim is a prohibition against planting two crop species close together. The halacha prohibits planting an alien crop species inside a vineyard, planting one species very close to another already planted species, planting one species on top or inside another species, and planting the seeds of two species together. Incidentally, these prohibitions apply only in Eretz Yisroel, with the exception of planting a different species inside a vineyard (Gemara Kiddushin 39a) and possibly of planting one species inside another (see Gemara and Tosafos Chullin 60a; Rambam, Hil. Kilayim 1:5 and Radbaz). Thus, someone in Chutz La’Aretz may plant his backyard garden with a wide variety of vegetables and other edibles without any halachic concern, whereas in Eretz Yisroel, someone planting a garden patch must be very careful to keep the different species separate. The complicated question of how far apart to plant them, and what qualifies as a valid separation if one plants them close together, is beyond the scope of this article (see Chazon Ish, Hil. Kilayim 6:1).

(By the way, the halachic definition of a species often differs from scientific definitions. For example, although some scientists consider wolves and dogs to be the same species, halacha does not; therefore one may not crossbreed them or use them to haul a load together [Mishnah Kilayim 1:6]. On the other hand, the Chazon Ish [3:7] discusses whether all citrus fruits are the same species concerning the laws of kilayim, which would permit grafting a grapefruit tree onto a lemon stock, whereas scientists consider them as two distinct species. According to the majority opinion, an esrog grafted onto a lemon tree is non kosher for the mitzvah on Sukkos, although the grafter may not have violated any Torah prohibition in the process.)

HARKAVAS ILAN – CROSS-GRAFTING

The laws of kilayim also prohibit grafting a branch of one species of tree onto the wood stock, or lower trunk, of another species. Although a town dweller may feel that this is a rare occurrence, in fact, contemporary plant nurseries and tree farmers usually graft branches of a species that produces delicious fruit onto the hardier stock of a different species.

For example, most modern peach and nectarine trees are produced by grafting a peach or nectarine branch onto the stock of a hardier tree, such as an almond. As I will explain, someone who performs this, either in Eretz Yisroel or in Chutz La’Aretz, violates a Torah prohibition whether he is Jewish or not. Therefore, a Jew who hires or requests a non-Jew to graft such a tree, or even to prune or water it after it was implanted, contravenes lifnei iveir, causing someone else to break a prohibition.

Because so many trees are grafted nowadays, someone who owns a peach tree should have a horticultural expert check whether its stock is also a peach tree, or whether it is of a different species. If the stock is peach, even of a different variety, he may keep the tree; if the stock is of a different species, he should chop off the tree below the point of the graft. (Some have suggested that George Washington chopped down his father’s cherry tree because it was grafted onto a different species. If this is true, George did an additional good deed, at least according to some opinions, besides telling the truth afterwards.) As we will see shortly, there is no violation of baal tashchis in cutting down this tree.

Often even a non-expert can detect if a tree was grafted onto a different species by simply scrutinizing the tree. If the bark somewhere near the bottom of the tree looks very different from the upper part of the tree, this indicates that the upper part of the tree was grafted, possibly onto a different species. Before purchasing a new tree at a nursery, examine the trunk carefully for signs of grafting. If indeed this tree is the product of a graft onto a different species, then watering or pruning it violates a Torah law, as I will explain. Furthermore, one may not use the sprinkler to irrigate the rest of the lawn if this tree will benefit.

NECTARINE TREES

Nectarine trees are susceptible to a host of plant diseases, and as a result are usually grafted onto the stock of peach, plum, almond or other trees. It is unclear whether peach and nectarine are halachically considered the same species or not, but the other species are certainly different species halachically. Therefore, although cross-pollinating different species does not violate halacha, watering a nectarine tree grafted onto a different species stock does.

By the way, one may plant or maintain different species of trees in close proximity, presumably because grown trees do not look mixed together but stand distinct.

DOES THE PROHIBITION AGAINST GRAFTING APPLY IN CHUTZ LA’ARETZ?

Although most agricultural mitzvos (mitzvos hateluyos ba’aretz), such as terumah, maaser, and shmittah, apply only in Eretz Yisroel, some of these mitzvos also apply in Chutz La’Aretz, such as the mitzvah of orlah, which prohibits using fruit that grows on a tree before it is three years old.

Although the laws of orlah differ when the tree grows in Chutz La’Aretz, the fruit produced before the tree is three years old is nevertheless prohibited.

Where does kilayim fit into this picture? Of course, some kilayim prohibitions, such as shatnez, cross-breeding animals and lo sacharosh are not agricultural and therefore apply equally in Eretz Yisroel and in Chutz La’Aretz. Among the agricultural prohibitions of kilayim, some apply in Chutz La’Aretz also, whereas others apply only in Eretz Yisroel. .

Planting vegetables and other edible crops together applies only in Eretz Yisroel, grafting trees applies equally in Chutz La’Aretz and in Eretz Yisroel min hatorah, while planting in a vineyard applies in Chutz La’Aretz but only midirabbanan (Gemara Kiddushin 39a).

MAY ONE OWN KILAYIM?

The Gemara (Moed Katan 2b) cites a dispute whether maintaining kilayim in a vineyard (in Eretz Yisroel) is prohibited min hatorah. Rabbi Akiva contends that building a fence to protect kilayim violates a Torah law, whereas the Sages contend that it does not (Rashi to Avodah Zarah 64a).

Most poskim conclude that one may not own kilayim but must rip it up (Shulchan Aruch Yoreh Deah 297:2); Rambam (Hil. Kilayim 1:2) paskins like the Sages that this is prohibited only midirabbanan whereas Rosh (Hil. Kelayim #3) prohibits this min hatorah. (Note that Shu’t Chasam Sofer [Yoreh Deah #282] contends that Tosafos [to Avodah Zarah 64a s.v. Rabbi Akiva] permits owning kilayim.)

WHAT ABOUT OWNING A GRAFTED TREE?

Most poskim assume that one may not own a kilayim tree just as one may not own kilayim in a vineyard. Furthermore, they contend that this halacha applies whether the tree is in Eretz Yisroel or in Chutz La’Aretz (Rosh, Hil. Kilayim Chapters 1& 3; Pischei Teshuvah, Yoreh Deah 295:2, quoting many poskim).

However, many observant Jews purchased agricultural properties that contained kilayim trees and they did not cut down those trees. Was there any justification for their actions? Many halachic responsa discuss what was apparently a widespread practice in the eighteenth and nineteenth century. Whereas most poskim rule that these Jews violated the halacha, some authorities justify the practice of owning these trees at least in Chutz La’Aretz (Shu’t Chasam Sofer, Yoreh Deah #288; cf. Aruch HaShulchan, Yoreh Deah 295:17-18). Even these opinions agree that it is preferred to follow the stricter approach and cut down the grafted part of the tree.

I THOUGHT THAT ONE MAY NOT CUT DOWN A FRUIT-BEARING TREE?

Although it is usually prohibited to chop down a tree that bears enough fruit to be profitable, this prohibition does not exist when owning the tree involves a prohibition. Furthermore, baal tashchis generally does not exist when one is trying to enhance one’s observance of mitzvos.

Nevertheless, it is preferred to have a non-Jew chop down the tree since he has no mitzvah of baal tashchis.

WHY DOES THIS MITZVAH APPLY TO NON-JEWS?

The Gemara (Sanhedrin 56b) quotes a dispute about this question. According to the Sages, the prohibition of kilayim does not apply to Bnei Noach, whereas according to Rabbi Elazar, Bnei Noach are included in some of the kilayim prohibitions but not others. Specifically, they are prohibited from mating different animal species and from grafting one species of fruit tree onto another, but they may plant different species together or in a vineyard, or wear shatnez.

Why are they included in one prohibition but not the other?

Describing the creation of plants, the Torah says:

“And G-d said, ‘The earth shall sprout forth vegetation, herbage that produces seed; Edible trees that produce fruit of their own species’ … And the earth produced vegetation, herbage that produces seed of its own species and trees that bear seed-bearing fruit of their own species.”

(Breishis 1:11-12).

Reading the pasuk carefully, we see that Hashem ordered only the trees, and not the herbaceous plants, to “produce fruit of their own species.”

Even though the herbage did in the end produce “seed of its own species,”

this was not because it was commanded. The Gemara derives from other sources that just as the earth was commanded to keep tree species distinct, so too, Adam HaRishon and all his descendants were commanded to keep these species distinct. But since the herbaceous world was never commanded to keep its species distinct, Adam was not commanded concerning this halacha. Therefore, although Jews may not plant them together, Bnei Noach may (Yerushalmi Kilayim 1:7, quoted by Gra to Yoreh Deah 295:2).

WHICH OPINION DO WE FOLLOW?

Do we rule like the Sages that a non-Jew is not included in the prohibition of harkavas ilan, or like Rabbi Elazar that he is? The Rambam (Hilchos Melachim 10:6) rules like Rabbi Elazar that a non-Jew may not graft one species of tree onto another, whereas the Ritva (Kiddushin 39a s.v. Amar Rabbi Yochanan) and the Shach (Yoreh Deah 297:3) are lenient.

Although we usually follow the Rambam’s opinion, some poskim suggest that we might be able to rule leniently if only a rabbinic prohibition is involved, such as where the grafted tree exists already and one is not watering or pruning it (Chazon Ish, Kilayim 1:1).

MS. BAKER’S SHAYLAH

I mentioned earlier that a Jew who prunes or waters a kilayim tree violates the Torah prohibition whether in Eretz Yisroel or in Chutz La’Aretz. According to most authorities, one may not even own this tree and one is required to cut down the grafted part. However since this last prohibition is only midirabbanan according to most poskim, non-Jews may allow a grafted tree to survive and may even build a fence around it since they are not required to observe Rabbinic prohibitions. (Compare, however, Shu’t Mahari Asad, Yoreh Deah #350 and Shu’t Maharsham 1:179.) However, if the tree is grafted onto other species, Ms. Baker may not water or prune it because that is halachically equivalent to planting it which is prohibited according to most opinions. In my opinion, she may also not operate her sprinkler system to irrigate her lawn if the kilayim tree will benefit as a result.

May Ms. Baker ask another non-Jew to water her tree? The poskim dispute whether a non-Jew may ask or hire someone else to violate a mitzvah. Most contend that this is permissible, because the mitzvah of lifnei iveir, causing someone else to violate a mitzvah, does not apply to non-Jews (Tosafos, Avodah Zarah 16b s.v. linachri). Other poskim (Ginas Veradim, Klal 43) prohibit this, basing themselves on earlier sources that prohibit a ben Noach from violating a transgression that logic tells us to avoid (Rabbeinu Nissim, Introduction to Shas).

MAY WE EAT THE FRUITS OF A GRAFTED TREE?

One may eat the fruits of a grafted tree (Rambam, Hil. Kilayim 1:7, based on Yerushalmi). One may even take the shoot of a grafted tree and plant it after it has been severed from the original tree.

In all the six types of kilayim mentioned above, the general criterion is to avoid the appearance of different species being intermingled.

Concerning this, Rav Hirsch (Vayikra 19:19) writes, “The Great Lawgiver of the world separates the countless numbers of His creations in all their manifold diversity, and assigns to each one of them a separate purpose and a separate form for its purpose.”

In addition, observing the laws of kilayim helps us remember how various species obeyed Hashem’s instructions to remain separate during their creation, (the source for some halachos of kilayim as we saw above). This reminds the contemplative Jew that if the plants heeded Hashem’s word during the Creation, how much more are we obligated to obey all His instructions.

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

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On the Wings of Eagles – or Perhaps I Have the Wrong Bird

clip_image002In am sending you this article in honor of Parshas Shmini.

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Question #1: My chavrusa and I are studying Chullin, and we recently discovered a Tosafos who states that a nesher is not an eagle; yet every Chumash I have seen translates kanfei nesharim as the “wings of eagles.” Are all these translators ignorant of this Tosafos?

Question #2: While camping in Western Canada, we saw thousands of wild, roaming, land birds called “prairie chicken,” that are clearly different from the common, familiar chicken, but appear similar enough that I was tempted to bring one to a shocheit to prepare for us. Halachically, could I have done this?

Question #3: On a tour in Israel, I visited a kibbutz where they raise a variety of duck, called the Muscovy duck, for its kosher meat and liver. Yet I was told that several prominent rabbonim prohibited eating this bird. What are the halachic issues involved in the kashrus of this bird?

To answer these questions accurately and thoroughly, we need to explain the background how one identifies kosher and non-kosher species, and the differences in halachic practice that have developed.

The Torah describes the exact indicators that render fish and animals kosher, providing us with relatively clear simanim, indicating signs, to determine whether a species is kosher or not. However, regarding birds the Torah simply inventories a list of non-kosher varieties, implying that all other birds are acceptable for the Jewish palate (Vayikra 11:13- 19; Devarim 14:11- 19). Indeed, the Gemara notes that there are countless kosher bird species (Chullin 63b). After analyzing the Torah’s list, the Gemara concludes that 24 varieties (or possibly, categories) of bird are non-kosher, the remaining species all being kosher (Chullin 61b). Thus, someone who can identify all 24 species of non-kosher fowl could indeed shecht and eat any other species of bird he discovers. Furthermore, the Gemara rules that a hunter who recognizes all 24 non-kosher species may teach other people which species are kosher (Chullin 63b).

On this basis, why do we restrict ourselves to eating only familiar species? Also, is there any way that a non-hunter can identify whether a bird is kosher?

KOSHER BIRD SIMANIM

Are there any signs that indicate whether a variety of bird is kosher?

The answer is yes and no.

The Mishnah, indeed, lists four simanim that identify a bird as kosher. However, before introducing and explaining the four simanim, I need to clarify a major difference between the function of simanim in identifying kosher birds as opposed to those of fish and land animals. Any animal that possesses both simanim, that is, it has both fully split hooves and chews its cud, is kosher; any animal possessing one siman but not the other is definitely non-kosher. In the case of fish, the Torah rules that any species that possesses both fins and scales is kosher; and the Mishnah teaches that there are no species possessing scales that do not possess fins. Thus, any species of fish possessing scales is kosher, and any without scales is not.

In the case of birds, however, a bird containing all four kosher simanim is definitely kosher, and a bird that possesses none of the four simanim is not kosher. Concerning birds that possess some of the four signs but not all, some are kosher and some are not. The Gemara teaches that of the 24 species mentioned by the Torah, only the nesher lacks all four simanim. (Rashi explains that any bird variety lacking all four kosher simanim is considered a sub-category of nesher. We will see shortly why I have not translated the word nesher.) The peres and the azniah, two of the 24 non-kosher varieties, each possesses only one of the kosher simanim and lacks the other three. The oreiv, usually identified as the raven (see Tosafos, Chullin 62a s.v. mipnei who discusses whether this identification is accurate) and the zarzur each has two kosher simanim and lack the remaining two, and the remaining 19 types of non-kosher bird each has three of the simanim and lacks only one. (This follows the approach of most interpretations of this passage of Gemara.)

However, there are many varieties of kosher bird that only possess some kosher signs and lack others. For example, geese contain only three of the four kosher simanim, and yet are 100% kosher!

Any bird possessing some, but not all, of the simanim is still kosher if it is not one of the 24 species listed by the Torah. Since this is true, how can one tell whether a bird containing some kosher signs is indeed kosher? Only if one knows all 24 types of non-kosher birds mentioned in the Torah, could one thereby identify the remaining kosher varieties. This is exactly what the expert hunter of the Gemara does. Furthermore, he may educate others that a specific species is kosher. However, those of us without access to his expertise would not be able to consume birds unless we had a mesorah, an oral tradition, that this is a kosher bird, in which case one could eat it even if it does not have all four kosher simanim (Chullin 63b).

IDENTIFYING KOSHER WITHOUT A MESORAH

According to the Mishnah, someone who finds a variety of bird for which he has no mesorah may still eat it based on the following rules:

“Any bird that is doreis is not kosher. Any that possesses an “extra claw,” and has a crop, and whose gizzard can be peeled is kosher (Chullin 59a).” I will shortly explain what these simanim are.

According to Rashi, the Mishnah is teaching that if we can identify a bird that has all four of the simanim, that is, it is not doreis, it possesses an “extra claw,” has a crop, and has a gizzard that can be peeled, the bird is definitely kosher. The Gemara records that all the varieties of dove mentioned by the Torah as korbanos have these four indicating simanim. Thus, according to Rashi’s understanding of the Mishnah, one may only eat a variety of bird that has no mesorah if it possesses all four simanim. (It should be noted that most other Rishonim interpret the Mishnah differently, and indeed rule that, under certain very specific circumstances, one may eat certain birds based on some, but not all, of the simanim.)

Although a bird may have only some of the four simanim and still be kosher, any bird with all four simanim is unquestionably kosher according to the Mishnah.

What are the four simanim?

DOREIS

I. Any bird that is doreis is not kosher. Thus, the kosher siman is that a bird is not doreis.

People often mistranslate the word doreis as predator. However, this is inaccurate, since chickens, which the Mishnah teaches are kosher, are technically predators since they feast on worms and insects.

The Rishonim debate what the word doreis means; here are five different interpretations:

A. The bird lifts its prey from the ground with its claws when feeding (Rashi, Chullin 59a s.v. hadoreis).

B. It grips and restrains its food while eating (Rashi, Chullin 62a s.v. vehani milei).

C. It preys on smaller birds or rodents, which it devours while they are alive (Rabbeinu Tam, cited in Tosafos Chullin 61a s.v. hadoreis).

D. It poisons with its talons (Ran, Chullin, page 20b in Rif, as explained by the Aruch HaShulchan 82:5) (A talon is a claw, but the word “talon” is typically used only for predators.)

E. It pounces on its prey with its talons (the above-quoted Ran, as explained by the Shach, Yoreh Deah 82:3).

Thus, by observing a bird’s feeding and clawing behavior one may be able to determine that it is non-kosher.

It must be emphasized, that although all birds that are doreis are non-kosher, the inverse is not true. There are varieties of fowl that are not doreis, yet nevertheless are not kosher.

The Gemara does not state that a bird must be doreis frequently to qualify as such. Rather, it implies that a bird is non-kosher if it is ever doreis (Chullin 62b). Thus, it may be difficult to easily identify a bird as a non-doreis, a fact with major ramifications.

INDICATIONS OF DOREIS

The Mishnah records an alternative method of verifying whether a bird is doreis: Rabbi Elazar ben Rabbi Tzadok rules that any bird that splits its talons, two before and two behind, when it grips a rope, is doreis and therefore not kosher (Chullin 59a, as explained there by the Gemara 65a). (Note that the halachic authorities all quote this opinion as definitive [Tosafos Yom Tov ad loc.].)

It is noteworthy that an early halachic authority cites a different mesorah for identifying a bird that is not doreis. Any bird with a wide beak and webbed feet is not doreis (Baal HaMaor). The Rishonim quote this approach and it is recorded in Shulchan Aruch (Yoreh Deah 82:3).

Tosafos raises a question: How did Chazal research that not one kosher species anywhere in the world is doreis? How can the Gemara confidently say that none of hundreds of kosher bird species is doreis? Tosafos rules out the explanation that this was an oral tradition communicated to Moshe Rabbeinu at Har Sinai (halacha leMoshe miSinai) because if that were true, the Torah need not have mentioned all 24 varieties of non-kosher bird in order to identify all non-kosher varieties. Instead, it could have succinctly taught that all birds that are doreis are non-kosher, and in addition, listed the remaining small list of non-kosher birds that are not doreis.

Tosafos concludes that Noah, who knew which birds are kosher and which are not, observed that none of the kosher varieties were doreis (Chullin 61a s.v. kol of). Thus, the siman that a doreis is not kosher is an oral tradition dating back to Noah.

BODY SIMANIM

So far, we have identified one siman that identifies some non-kosher birds, which is based on avian feeding behavior. The other simanim are all anatomical features, two internal and one external. One of these simanim is the crop such as is found in doves, chickens, and most, but not all, varieties of bird that we are accustomed to consider kosher.

What is a crop?

The crop is a very interesting part of a bird’s digestive system. It is essentially a storage bag for undigested food that Hashem provided for smaller birds to enable them to survive in the wild. A brief description of the life of a small bird will help us understand the chesed Hashem performed for these birds.

Smaller birds always need to worry that they are potential lunch for larger ones. As such, they must be careful to expose themselves to harm very briefly before returning to their safe hideouts. What happens if a small bird finds a plentiful supply of seeds that would keep it satisfied for a while, but the seeds are located in a place where a leisurely feast could easily render the bird into an available dinner for a predator?

Hashem came to the rescue of the smaller bird and provided it with a crop! The crop does not digest the food, but functions as an expandable storage pouch allowing the small bird to gobble its food quickly. Once the gizzard and crop hold as much as they possibly can, the bird escapes to its safe cover, secure from predators. At this point, the gizzard grinds the seeds inside it, and when empty receives more from the crop. This way the bird gradually turns into nutrition what it quickly gobbled without having to reach for a bottle of Tums to recover from the huge indigestion that afflicts humans when they eat too much at one time.

REASONS FOR A CROP

Although we cannot be certain of the reasons for the Torah’s mitzvos, the commentators conclude that we should attempt to understand why the Torah commanded us concerning the mitzvos. Perhaps the crop is a siman of kosher birds since smaller birds that eat seeds usually possess this organ in order to protect themselves from predators. Thus, although man usually lauds the large, impressive birds such as the eagle, falcon, and condor, the Torah is teaching that its message is better conveyed through the smaller birds that protect themselves by fleeing. We find this idea in a Midrash, which points out that the only bird kosher for the mizbayach are doves, which are hunted by larger birds of prey.

ONE CAN PEEL ITS GIZZARD

One of the four simanim of a kosher bird is that one can peel off the inside of its gizzard. We are all familiar with a chicken’s gizzard, although many of us know it by its Yiddish name, the pupek. The hard muscle of the pupek grinds the food, which begins its digestive process. A bird swallows its food whole, which means that its gizzard must accomplish what humans achieve with their teeth and saliva.

How does the toothless bird “chew” the seeds it eats? Hashem, who provides food even for the young raven (Tehillim 147:9), provided all birds with the ability to digest their food in incredible ways. The bird swallows pebbles which are held in the gizzard. The powerful gizzard muscles grind the food with these pebbles.

The special lining of the gizzard protects the gizzard itself from becoming damaged by these stones. In birds containing all four kosher simanim, this lining of the gizzard can be peeled off the gizzard (obviously, only post-mortem).

BY HAND OR BY BLADE?

The Gemara discusses eight varieties of bird that have uncertain kashrus status. In all eight cases, the birds were not doreis and may have been kosher. However, these birds’ gizzards can be peeled only by a knife, and not with one’s fingernails. The Gemara was uncertain whether this qualifies as a kosher siman. Since we cannot positively identify these eight varieties of bird as kosher, and we have no mesorah identifying them as such, we must treat them as non-kosher (Chullin 62b).

AN EXTRA CLAW

One of the four simanim that can identify a bird as definitely kosher is the possession of an “extra claw.” Where is this extra claw located?

The Rishonim disagree, some understanding that this claw points in the opposite direction from the other claws of the birds; whereas others explain that in addition this claw must protrude at a higher point on the leg than the other claws. A third approach understands that the claw is on the same side of the bird’s leg as the other claws but protrudes outward farther than the others.

Although these differences seem rather technical for those of us who are not habitual bird watchers, there is a significant nomenclature concern that results from this discussion. Is a nesher indeed an eagle?

Chazal tell us that of the 24 non-kosher birds identified by the Torah, only a nesher lacks all four kosher signs. This means that only a nesher is doreis, does not possess an “extra claw,” is crop-less, and has a gizzard that cannot be peeled. Any bird that has some of these simanim, but not all, may indeed not be kosher, but it is not a nesher.

IS THE NESHER AN EAGLE?

“Everyone” knows that a nesher is an eagle. However, Tosafos notes that an eagle possesses a talon that is opposite the other claws on its leg, and on this basis he concludes that a nesher cannot possible be an eagle since a nesher should not have this sign (Chullin 63a s.v. neitz). Those of us distressed to discover that the United States national bird is not a nesher will find solace in the explanation offered by the Aruch HaShulchan – that the kosher siman is that the opposing claw must also be raised higher than the other claws — whereas an eagle’s opposing claw is directly opposite the other claws (Yoreh Deah 82:3). Thus, our national pride indeed possesses no signs of kashrus!

All of this does not explain whether we can eat prairie chicken or Muscovy duck. To answer this question, we will have to wait for the sequel. (Click here to view the article.)

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Preparing Food on Yom Tov

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The Torah teaches that although most melachos are forbidden on Yom Tov, cooking and most other food preparation are permitted. Nevertheless, some types of food preparation are prohibited on Yom Tov, such as catching fish, picking fruit, and squeezing juice. Why are these activities different from cooking, kneading, and the other food preparatory activities that are permitted on Yom Tov?

To understand the answer to this question correctly, we must imagine ourselves preparing a meal in the days of Chazal: Refrigeration and most modern methods of preserving food do not exist, and preparing a festive meal requires baking and cooking on the day of the occasion. Although it may seem strange to us, even shechitah and soaking and salting the meat are performed the day the meal is served. Thus, the Torah permitted any activity necessary to prepare a meal that will be served on Yom Tov. It is even permitted to skin the hide off an animal that has been shechted on Yom Tov since one cannot remove the meat properly without first removing the hide.

However, some food preparatory activities are usually performed in advance of the day you intend to serve the meal. Even in earlier days, one did not begin preparing the day’s meal by catching fish. One who planned fish for dinner would catch or purchase the fish the day before, and then leave the fish in water until it was time to prepare it. Therefore, one may not fish on Yom Tov, even if you intend to fry fish for the day’s meal.

Similarly, fruits are usually picked and squeezed when they ripen, and then the juice or oil is stored. Thus, picking and squeezing fruit is not permitted on Yom Tov, even though they are steps in the preparation of food. Even picking or squeezing a small amount of fruit is prohibited, since usually these activities are performed in quantity and stored for a longer period of time.

In a like manner, the day one prepares a meal is not the time to begin grinding the wheat into flour, and it is certainly not the time to harvest the grain or to thresh it. At an earlier date, one would grind the grain into flour and then store it for subsequent use. However, someone serving fresh bread or pastry prepares the dough the day the meal is to be served. Therefore, it is permitted to mix flour and water on Yom Tov. This subject leads us to a more extensive discussion about the melacha of kneading on Yom Tov.

Kneading on Yom Tov

One of the thirty-nine melachos of Shabbos is kneading, which includes any instance of combining fine particles together with a liquid until they stick together. Thus, one may not mix grains or powders with liquid to create an edible cereal on Shabbos. However, since one may knead dough on Yom Tov, all kneading is permitted on Yom Tov. Thus, one may prepare oatmeal, pudding, or baby cereals on Yom Tov the same way these foods would be prepared on a weekday. (One may not mix these foods in the usual fashion on Shabbos.)

Separating Challah

When one kneads dough on Yom Tov, the challah portion is separated even though it is Yom Tov (assuming that one kneaded a sufficient quantity of dough). However, one does not burn the separated challah portion on Yom Tov. Instead, one sets the portion aside to be burnt after Yom Tov (Shulchan Aruch 506:4).

If one baked before Shabbos or Yom Tov, one may not separate the challah portion on Shabbos or Yom Tov. What happens if you realize on Shabbos or Yom Tov that you forgot to separate challah? The answer to this shaylah depends on whether the dough was kneaded in Eretz Yisroel or in chutz la’aretz. If the dough was kneaded in Eretz Yisrael, then there is no solution but to leave the bread until after Shabbos or Yom Tov, and then separate the challah portion. However, if this dough was kneaded in chutz la’aretz, then there is a different solution. One may eat the bread on Shabbos or Yom Tov as long as one makes sure that some of the bread remains until after Shabbos or Yom Tov. After Shabbos or Yom Tov, one separates the challah portion from the leftover bread. This separating “after the fact” is sufficient to fulfill the mitzvah of separating challah in a dough produced in chutz la’aretz (Rama 506:3). The reason for this distinction requires a bit of explanation.

Min HaTorah there is a requirement to separate challah only on dough that is made in Eretz Yisroel. (In actuality, the requirement is min hatorah only when all= Jews live in Eretz Yisroel.) The requirement to separate challah on dough mixed in chutz la’aretz is only out of concern that Jews living in chutz la’aretz should not forget that there is a mitzvah to separate challah. However, since the mitzvah is only midirabbanan, Chazal allowed the leniency of separating the challah portion “after the fact” (Shulchan Aruch Yoreh Deah 322:2-3).

==Grating, Grinding, and Mashing on Yom Tov

The melacha of grinding is different from the melachos previously discussed. Some foods are ground as you prepare the meal, whereas others are ground well before the meal is prepared. For example, when preparing a kugel, the potatoes are grated when you prepare the meal; similarly, a gourmet chef might crush fresh pepper and other spices specifically for the meal. These types of grinding are permitted on Yom Tov, as I will explain. On the other hand, one does not grind wheat the day one plans to bake bread, and it is therefore prohibited to grind flour on Yom Tov.

The laws of Yom Tov divide the various items that might be ground into four categories:

1. Items that are usually ground well in advance of preparing a meal, such as flour, may not be ground at all.

2. Items that might be ground while preparing the meal, but could have been ground earlier without affecting their flavor, such as salt, items may be ground on Yom Tov, but only by grinding them differently from the way one would usually grind them. For example, the Mishnah states that one may grind salt on Yom Tov with a wooden pestle rather than one of stone (Beitzah 14a). Therefore, if someone discovers on Yom Tov that they have no regular salt in the house, but have only coarse koshering salt, they may crush the salt on Yom Tov on the table but not with a mortar and pestle, or salt or pepper mill.

3. Items that taste better fresh, but are usable if ground before Yom Tov, may be ground or chopped on Yom Tov, but only by grinding or chopping them with a slight shinui (Rama 504:1), such as by placing a napkin on the plate or mortar on which they are being ground (Mishnah Berurah 504:19). Therefore, someone accustomed to freshly crushed pepper or spices may grind them on Yom Tov with a slight change but may not use a tabletop pepper mill.

4. Items that will become useless if ground or chopped before Yom Tov may be ground or chopped on Yom Tov in the way that they would usually be ground or chopped on a weekday. Therefore, one may mash avocado and banana, grate potatoes and onions, and dice salad and apples on Yom Tov the way one would on a weekday (Piskei Teshuvos 504:3).

Measuring

In general, it is prohibited to measure on Yom Tov, just as it is prohibited to measure on Shabbos. Thus, one may not measure out how much flour, sugar, or oil to use in a recipe (Shulchan Aruch 506:1). However, one may approximate how much flour, oil, or sugar is needed. It is permitted to use a measuring cup as long as one does not fill the cup exactly to its measuring points (Mishnah Berurah 506:3).

The Poskim dispute whether one may measure spices on Yom Tov, some permitting (even though it is prohibited to measure other items) because approximating spices may ruin the recipe if one errs (Beitzah 29a). However, Magen Avraham (504:10) contends that since most women cook without measuring spices on weekdays, but simply estimate how much they use, they may not measure spices on Yom Tov. Others contend that someone who measure spices on weekdays may measure them on Yom Tov.

Cooking that is Prohibited

One is permitted to cook and prepare food on Yom Tov only when one intends to eat that food on Yom Tov, but one may not cook for after Yom Tov or on the first day of Yom Tov for the second. For this reason, it is important that all preparations of meals for the second night of Yom Tov wait until the first day of Yom Tov is over. Thus, there was a custom in many communities in Eastern Europe to delay the davening the second night of Yom Tov in order to discourage beginning the meal preparations too early.

One may cook amply for the Yom Tov meal, knowing that there will certainly be leftovers that can then be served on the second day of Yom Tov. However, one may not prepare individual units of a food item knowing that one is preparing more than can possibly be eaten on Yom Tov.

One is not permitted to cook on Yom Tov for a non-Jew since he does not observe Yom Tov. Furthermore, Chazal forbade inviting a non-Jew for a Yom Tov meal out of concern that one might cook for him on Yom Tov. One may invite a non-Jew, such as domestic help, for whom you would not prepare a special dish. However, one may not cook for them on Yom Tov.

It is also forbidden to cook or do other melacha for an animal. Thus, although one is permitted to mix dry grains with liquid to create an edible cereal on Yom Tov, one may not mix these items to feed a pet.

Use of Stoves and Ovens on Yom Tov

Chazal prohibited kindling a new flame on Yom Tov (Mishnah Beitzah 33a). Thus, although one may turn up an existing flame, one may not strike a match on Yom Tov (Aruch HaShulchan 502:6), nor may one light a stove or oven by using an electric igniter, since this is considered lighting with a new flame (Igros Moshe 1:115). If someone has a stove or oven that does not light with a gas pilot, it is a good idea to have a twenty-four hour candle burning over Yom Tov to facilitate lighting the stove on Yom Tov. Another advantage to igniting this candle before Yom Tov is that it enables the lighting of the Yom Tov candles on the second night of Yom Tov.

One is permitted to lower a flame in order to cook on Yom Tov. However, there are poskim who rule that one may lower a flame only when there is no option for turning up or on a different flame. According to the latter opinion, if one is cooking on a stove and one wants to lower the fire so that the food does not burn or boil out, one can do so only if there is no option for turning on another flame (Magen Avraham 514:2). However, Rav Moshe Feinstein ruled that it is permitted to lower a flame because one desires to cook with a lower flame or so that the food does not burn or boil out (Igros Moshe 1:115; 4:103).

Hashkafah of Preparing Food on Yom Tov

The Torah refers to the Yomim Tovim as Moed. Just as the word ohel moed refers to the tent in the desert which served as a meeting place between Hashem and the Jewish people, so too a moed is a meeting time between Hashem and the Jewish people (Hirsch, Vayikra 23:3 and Horeb). Although on Shabbos we are to refrain from all melacha activity, on Yom Tov the Torah permitted melacha activity that enhances the celebration of the Yom Tov as a Moed. Permitting the preparations of delicious, freshly prepared meals allows an even greater celebration of the festivities of the Yom Tov as we celebrate our unique relationship with Hashem.

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The Mourning Period of Sefirah – What Are the Guidelines of the Aveilus Observed During the Sefirah Weeks?

Reason for Mourning

The medrash teaches that one reason for the counting of the omer is so that we again experience the excitement of anticipating the receiving of the Torah (quoted by Ran, end of Pesachim). At the same time, it is unfortunate that this very same part of the year has witnessed much tragedy for the Jewish people. Indeed, the Mishnah (Eduyos 2:10) points out that the season between Pesach and Shavuos is a time of travail. One major calamity that befell us during this season is the plague that took the lives of the 24,000 disciples of Rabbi Akiva. They died within several weeks in one year between Pesach and Shavuos because they did not treat one another with proper respect (Yevamos 62b). The world was desolate for the loss of Torah until Rabbi Akiva went to the southern part of Eretz Yisroel to teach five great scholars, Rabbi Meir, Rabbi Yehudah, Rabbi Shimon bar Yochai, Rabbi Yosi, and Rabbi Elozor ben Shamua, who became the upholders of the future of Torah.

Again, in the time of the Crusades, terrible tragedies happened to the Jewish communities of the Rhine River Valley during the period between Pesach and Shavuos (Taz and Aruch HaShulchan, Orach Chayim 493). Some of these catastrophies are recorded in the Kinos that we recite on Tisha B’Av. The reciting of “Av HaRachamim” after Keriyas HaTorah on Shabbos was introduced as a testimonial to remember these holy communities who perished in sanctification of Hashem’s name rather than accept baptism.

What Practices Are Prohibited

At the time of the tragic passing of Rabbi Akiva’s disciples, the minhag was established to treat the sefirah period as a time of mourning and to prohibit the conducting of weddings during this season. It is interesting to note that although it is forbidden to hold a wedding during this season, if someone schedules a wedding during this season in violation of the accepted community practice, we do not penalize him for having done so (Tshuvos Geonim #278). Thus, although this person violated the community rules by scheduling the wedding, others may attend the wedding (see Igros Moshe, Orach Chayim 2:95). There are poskim who permit weddings under extenuating circumstances, such as concern that a delay may cause the engagement to be broken (Aruch HaShulchan 493:2).

In addition to abstaining from weddings, certain other mourning practices are also observed during the period of sefirah. One does not take a haircut during this season (Tur Orach Chayim Chapter 493). However, if there is a bris during sefirah, the mohel, the sandek, and the father of the baby are permitted to have their hair cut in honor of the occasion (Rema), but not the kvatter or those who are honored with “cheika” (Mishneh Brura 493:12). Those who are permitted to have their hair cut in honor of the occasion may even have their hair cut the evening before (Mishneh Brura 493:13).

Dancing is not permitted during the sefirah season (Magen Avraham). Listening to music is likewise prohibited (Igros Moshe 1:166; Minchas Yitzchok 1:111; Yechaveh Daas 3:30). One is permitted to teach, learn, or play music if it is for his livelihood (Igros Moshe 3:87). This is permitted since he is not playing for enjoyment. However, one should not take music lessons for pleasure.

Rav Moshe Feinstein ruled that if a wedding took place on Lag B’omer or before Rosh Chodesh Iyar (in places where this is the accepted practice, see below), it is permitted to celebrate the week of sheva berachos with live music and dancing (Igros Moshe, Orach Chayim 2:95). There are others who disagree (Shu”t Minchas Yitzchok 1:111. See Piskei Tshuvos Chapter 493 footnotes 39 and 81 who quotes many authorities on both sides of the question.).

Although certain mourning practices are observed during sefirah, many practices that are prohibited during the three weeks or the nine days preceding Tisha B’Av are permitted. For example, house remodeling, which is prohibited during “the nine days” preceding Tisha B’Av, is permitted during the sefirah period (Shu”t Yechaveh Daas 3:30). Similarly, although during the nine days one is discouraged from doing things that are dangerous, no such concern is mentioned in regard to the period of sefirah. Thus, although the Minchas Elozor reports that he knew of people who would not travel during sefirah, he rules that it is permitted, and that this practice is without halachic basis (Shu”t Minchas Elozor 4:44).

In a similar vein, according to most poskim, one may recite a brocha of shehechiyanu on a new garment or a new fruit during the period of sefirah (Maamar Mordechai 493:2; Kaf HaChayim 493:4). The Maamar Mordechai explains that the custom not to recite shehechiyanu is a mistake that developed because of confusion with the three weeks before Tisha B’Av when one should not recite a shehechiyanu (Maamar Mordechai 493:2). However, there are early poskim that record a custom not to recite shehechiyanu during the mourning period of sefirah (Piskei Tshuvos, quoting Leket Yosher).

It is permitted during sefirah to sing or to have a festive meal without music (Graz; Aruch HaShulchan). It is also permitted to make an engagement party (a vort) or a tnoyim during the sefirah period, provided that there is no music or dancing (Shulchan Aruch Chapter 493 and Magen Avraham).

When Do We Observe Mourning?

There are numerous customs regarding which days of sefirah are to be kept as a period of mourning. The Shulchan Aruch rules that the mourning period runs from the beginning of the sefirah counting and ends on the thirty-fourth day of the omer count (Beis Yosef and Shulchan Aruch Chapter 493; Kaf HaChayim 493:25). In his opinion, there is no celebration on Lag B’Omer, and it is forbidden to schedule a wedding on that day! The source for this opinion is a medrash that states that the plague that caused the deaths of the disciples of Rabbi Akiva ended fifteen days before Shavuos. According to Shulchan Aruch’s understanding, the last day of the plague was the thirty-fourth day of the omer. Thus, the mourning ends fifteen days before Shavuos, ending the day after Lag B’Omer.

However, the generally accepted practice is to treat the thirty-third day of the Omer count as a day of celebration (Rema and Darchei Moshe Chapter 493, quoting Maharil) because according to this tradition, the last day of the tragedy was the thirty-third day (Gra). There are several other reasons mentioned why Lag B’Omer should be treated as a day of celebration. Some record that it is celebrated because it is the yahrzeit of Rav Shimon bar Yochai, the author of the Zohar (Birkei Yosef; Chaya Odom, Klal 131:11; Aruch HaShulchan). Others say that it is celebrated because it is the day that Rabbi Shimon bar Yochai was able to leave the cave in which he had been hiding (Aruch HaShulchan). Another reason recorded for celebrating this day is because it was the day that Rabbi Akiva granted semichah to his surviving disciples (Kaf HaChayim 493:26). Others record that it was the first day that the man began falling for the Jews in the desert (Shu”t Chasam Sofer, Yoreh Deah #233 s.v. amnam yodati).

According to Maharil and Rema, the evening of Lag B’Omer should be included in the mourning period and the celebration should not begin until morning. In their opinion, Lag B’Omer is still counted as one of the thirty-three days of mourning. The aveilos period ends on the morning of Lag B’Omer because of a concept called miktzas hayom ki’chulloh, which means that the last day of mourning does not need to be a complete day (Gemara Moed Katan 19b). If one observes the beginning of the day in mourning, the entire day is included in the count of the mourning days. For this reason, someone getting up from sitting shiva does so on the morning of the seventh day. Observing mourning requirements at the beginning of the seventh day satisfies the requirement to observe the seventh day of shiva. Similarly, one satisfies the requirement to observe the thirty-third day of sefirah mourning by observing mourning only at the beginning of the thirty-third day of sefirah. According to this approach, one should not conduct a wedding on the evening of Lag B’Omer, but only in the daytime. This is because we paskin according to the opinions that the principle of miktzas hayom ki’chulloh only applies if the mourning was observed in the daytime, and it is insufficient to observe aveilos only in the evening of the seventh day.

However, there are other opinions that permit scheduling a wedding even on the evening of the thirty-third, at least under extenuating circumstances (see Gra”z 493:5; Kaf HaChayim 493:28; Igros Moshe 1:159). Some explain that since we consider Lag B’Omer to be a day of celebration, it is not counted as one of the days of mourning (see Chok Yaakov 493:6 and Kaf HaChayim 493:28). Thus, there are some poskim who contend that there are only thirty-two days in the sefirah mourning period (Gra”z 493:5). Another reason to permit scheduling a wedding the evening of Lag B’Omer is based on the opinion that rules that miktzas hayom ki’chulloh applies even when one observes the mourning only at night (Ramban in Toras HoAdam, Chavel edition page 215). Thus, according to this approach, it is sufficient to have the beginning of the night of Lag B’Omer as a mourning period. (It should be noted that according to this opinion, shiva ends in the evening of the seventh day, not in the morning.)

When Lag B’Omer falls out on Shabbos or Sunday, there is a dispute among early poskim whether one is permitted to get a haircut on Friday in honor of Shabbos. The accepted practice it to permit it (Rema 493:2 and Be’er Heiteiv ad loc.). Apparently, the combined honor of Shabbos and the approaching Lag B’Omer together supersede the mourning of sefirah. Some poskim even permit a wedding to take place on the Friday afternoon before Lag B’Omer that falls out on Sunday (Shu”t HaAlef Lecho Shelomoh, Orach Chayim #330). (Bear in mind that the custom in Europe going back hundreds of years was to schedule most weddings on Friday afternoon.)

Are those who follow the practice of observing mourning during the beginning of sefirah permitted to play music during chol hamoed? This subject is disputed by poskim, but the accepted practice is to permit music during chol hamoed (see Piskei Tshuvos 493:6).

There are several other customs that observe the mourning dates of sefirah in different ways. Some observe the mourning period the entire time of sefirah until Shavuos except for Yom Tov, Chol HaMoed, and Rosh Chodesh (and also presumably Lag B’Omer). Therefore, they permit the playing of music on Chol HaMoed and holding weddings and music on Rosh Chodesh. (One cannot have a wedding on Chol HaMoed for an unrelated reason. The sanctity of Yom Tov precludes celebrating a wedding on this day, see Gemara Moed Katan 8b.) This approach is based on an early source that states that Rabbi Akiva’s disciples died only on the thirty-three days of sefirah when tachanun is recited, thus excluding the days of Shabbos, Yom Tov, Chol HaMoed, and Rosh Chodesh (Bach, quoting Tosafos). If one subtracts from the forty-nine days of sefirah for the days of Pesach, Chol HaMoed, Rosh Chodesh, and the Shabbosos, one is left with thirty-three days. It is on these days that the mourning is observed. (This approach assumes that in earlier days they recited tachanun during the month of Nisan and during the several days before Shavuos.)

Another custom recorded is to refrain from taking haircuts or making weddings from the beginning of sefirah until the morning of Lag B’Omer, but after Lag B’Omer to observe partial mourning by refraining from weddings, although haircuts were permitted. This approach follows the assumption that the original custom of aveilus during sefirah was based on the fact that the plague that killed the disciples of Rabbi Akiva ended on Lag B’Omer. Later, because of the tragedies of the Crusades period, the custom developed not to schedule weddings between Lag B’Omer and Shavuos. However, the mourning period accepted because of the tragedies of the Crusades was not accepted as strictly, and it was permitted to take haircuts (Taz 493:2).

Still others have the custom that the mourning period does not begin until after Rosh Chodesh Iyar but then continues until Shavuos (Maharil, quoted by Darchei Moshe 493:3). This approach assumes that the thirty-three days of mourning are contiguous, but that the mourning period does not begin until after the month of Nisan is over. In Salonica they observed a Sefardic version of this custom: They practiced the mourning period of sefirah from after Rosh Chodesh Iyar until Shavuos. However, they took haircuts on the thirty-fourth day of the sefirah count (cited by Shu”t Dvar Moshe, Orach Chayim #32).

A similar custom existed in many communities in Lithuania and northern Poland, where they kept the mourning period of sefirah from the first day of Rosh Chodesh Iyar until the morning of the third day of Sivan. According to this practice, weddings were permitted during the three days before Shavuos. This practice was based on the assumption that the disciples of Rabbi Akiva died after Lag B’Omer until Shavuos (Aruch HaShulchan, based on Gemara Yevamos). Magen Avraham reports that this was the custom in his area (Danzig/Gdansk); Chayei Adam reports that this was the practice in his city (Vilna), and Aruch HaShulchan report that this was the custom in his community (Novardok). These customs are followed to this day in communities where weddings are allowed after Pesach through the month of Nisan.

Rav Moshe Feinstein points out that although these customs differ which days are considered days of mourning, the premise of most of the customs is the same: Thirty-three days of sefirah should be observed as days of mourning in memory of the disciples of Rabbi Akiva. In Rav Moshe’s opinion, these different customs should be considered as one minhag, and the differences between them are variations in observing the same minhag (Igros Moshe 1:159). This has major halachic ramifications, as we shall see.

Can One Change From One Custom to Another?

We would usually assume that someone must follow the same practice as his parents – or the practice of his community –­­ because of the principle of al titosh toras imecha, “do not forsake the Torah of your mother (Mishlei 1:8)”. This posuk is understood by chazal to mean that we are obligated to observe a practice that our parents observed. However, Rav Moshe Feinstein contends that since the different customs that are currently observed are all considered to be one minhag, changing from one custom to another is not considered changing one’s minhag, and it is therefore permitted. There is ample evidence that other, earlier poskim also agreed that a community may change its custom how it observes the mourning days of sefirah (see Shut Chasam Sofer, Orach Chayim #142). According to this opinion, the specific dates that one observes are not considered part of the minhag and are not necessarily binding on each individual, as long as he observes thirty-three days of sefirah mourning.

How Should a Community Conduct Itself?

Rama rules that although each of the various customs mentioned has halachic validity (Darchei Moshe 493:3), each community should be careful to follow only one practice, and certainly not follow the leniencies of two different customs. This is because if a community follows two different practices, it appears that Hashem’s chosen people are following two different versions of the Torah, G-d forbid.

Rav Moshe Feinstein points out that the Rama is discussing a community that has only one besdin or only one Rav. Under these circumstances, the entire community must follow the exact same practice for sefirah. However, in a city where there are many rabbonim and kehilos, each of which has its own custom regarding the observance of sefirah, there is no requirement for the entire community to follow one practice (Igros Moshe 1:159). Thus, there is no requirement that everyone in a large city follow the same custom for sefirah, unless it has been accepted that the community has one standard custom.

Of course. as in all matters of halacha, each community should follow its practices and Rabbonim, and each individual should follow the ruling of his Rav.

Attending a Wedding During One’s Sefirah Mourning

If a friend schedules a wedding for a time that one is keeping sefirah, is it permitted to attend? One is permitted to attend and celebrate a wedding during his sefirah mourning period, even listening to music and dancing there (Igros Moshe 1:159).

Thus, although I am required to have a mourning period during sefirah of at least thirty-three days, I may attend the wedding of a friend or acquaintance that is scheduled at a time that I keep the mourning period of sefirah. However, Rav Moshe rules that if one is going to a wedding on a day that he is keeping sefirah, he should not shave, unless his unshaved appearance will disturb the simcha (Igros Moshe 2:95).

We should all hope and pray that the season between Pesach and Shavuos should cease from being a time of travail, but instead revert to being a time of total excitement in anticipation of the receiving of the Torah.

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Chol HaMoed – Weekday or Yom Tov?

Question #1: My shoes tore on Yom Tov. May I have them repaired on Chol HaMoed?

Question #2: The supermarket has something on sale on Chol HaMoed that I need for after Yom Tov. May I purchase it?

Question #3: I am visiting my parents in Chutz La’Aretz for Yom Tov. I know that I must keep two days of Yom Tov while visiting them, but does that permit me to cook on Chol HaMoed for their Simchas Torah?

Question #4: Someone told me that Chol HaMoed is sometimes stricter than Shabbos. How can that be?

Answering these shaylos provides an opportunity to discuss the important and complicated halachos of Chol HaMoed. As the Gemara (Moed Katan 12a) points out, the halachos of Chol HaMoed are hard to categorize. Therefore, although a short article cannot possibly explain all the halachos of Chol HaMoed, I will present many of the principles and provide a basis for each individual to ask his or her own shaylos.

The Gemara (Chagigah 18a) implies that working on Chol HaMoed is forbidden min haTorah. Indeed, observing Chol HaMoed is included in the mitzvah of keeping Yom Tov, which is testimony of Hashem’s special relationship with the Jewish people (Gemara Pesachim 118a with Rashbam).

The Torah describes four mitzvos as an “Os,” a sign of Hashem’s relationship with us: Bris Milah, Shabbos, Yom Tov (including Chol HaMoed) and Tefillin. Because Chol HaMoed is included in this very special category, Jews should treat Chol HaMoed with great respect. Indeed, the Gemara states that disregarding the kedusha of the Yomim Tovim, including Chol HaMoed, is like idolatry (Pesachim 118a with Rashbam). Some commentators explain that this includes even someone who fails to serve special meals in honor of Chol HaMoed (Bartenura, Avos 3:11). Observing Chol HaMoed appropriately attests to our special relationship with Hashem.

DEFINING WORK ON CHOL HAMOED

Chol HaMoed is an unusual holiday. On the one hand it is Yom Tov, and we may not engage in many melacha activities. On the other hand, we may do many activities that enhance the celebration of Yom Tov.

The laws determining what is permitted and what is prohibited on Chol HaMoed are very detailed and technical. What really governs whether something is permitted on Chol HaMoed or not? The Gemara explains that the Torah prohibits doing some melachos on Chol HaMoed, yet “passed on to Chazal the rules of what melacha is prohibited and what is permitted” (Chagigah 18a).

What does this mean? Is the foundation of this mitzvah min haTorah or is it midirabbanan? How could the Torah create a prohibition and “pass on to Chazal” what is prohibited?

There are three basic interpretations of this Gemara:

1. Some Rishonim (Tosafos, Chagigah 18a) explain that melacha on Chol HaMoed is an asmachta, meaning something the Torah implies that it does not want us to do, but does not expressly forbid (see Ritva to Rosh Hashanah 16a). According to this approach, the Torah did not want Bnei Yisroel to work on Chol HaMoed, but never prohibited it. Thus, when the Gemara implies that melacha on Chol HaMoed is prohibited min haTorah, it is presenting the Torah’s sentiment, not a commandment. Working on Chol HaMoed violates the spirit of Yom Tov min haTorah, but does not violate the letter of the law. Chazal then implemented the Torah’s sentiment as law by forbidding certain melachos on Chol HaMoed. Since Chazal created the prohibition, they also created the rules, prohibiting some activities and permitting others.

2. Other Rishonim explain that the details of Chol HaMoed law are part of Torah Sheba’al Peh that Hashem gave Moshe Rabbeinu at Har Sinai for him to transmit orally (Ritva, Moed Katan 2a). Thus, someone who violates the laws of Chol HaMoed is violating a Torah prohibition, just as someone who violated any other interpretation of a Torah law transmitted to us through Chazal.

3. A third interpretation is that although the Torah prohibited melacha on Chol HaMoed, it delegated to Chazal the power to decide what to prohibit and what to permit. Thus, although Chazal formulated the rules that govern Chol HaMoed, someone who violates them abrogates Torah law (Rashi, Chagigah 18a).

Whether the prohibition of melacha is min haTorah or only midirabbanan, the purpose of Chol HaMoed is to devote one’s time to learning Torah (Yerushalmi, Moed Katan 2:3). In addition, ceasing from certain of these melachos elevates Chol HaMoed above ordinary weekdays (Rambam, Hilchos Yom Tov 7:1).

This last reason is a theme that lies behind the complex details of hilchos Chol HaMoed; we desist from activity that detracts from the purpose of Yom Tov. For this reason, Chazal prohibited some activities on Chol HaMoed that are not necessarily melacha but nonetheless detract from the Yom Tov experience.

These prohibited activities include:

1. Commerce that is not necessary for the festival.

2. Moving to a new residence.

COMMERCIAL ACTIVITY

Chazal prohibited business activity on Chol HaMoed unless it is to enhance the festival or to prevent financial loss (Gemara Moed Katan 10b). Even business that is permitted should be conducted in a discreet way that does not disturb kedushas Yom Tov (Mishnah, Moed Katan 13b). Thus, Chazal ruled that a clothing store may sell clothes to be worn on the festival, but that its main door to the street should be closed. If it has two doors to the street, one may be open and the other should be closed in order to demonstrate that today is Chol HaMoed (Gemara ad loc.; Shulchan Aruch, Orach Chayim 539:11).

A store selling only perishable food items may remain open in the regular way since everything purchased there is for Chol HaMoed and Yom Tov (Shulchan Aruch, Orach Chayim 539:10).

Thus, according to the Gemara and Shulchan Aruch, a Jew may not open his store for business as usual on Chol HaMoed (see Shu”t Chasam Sofer #1). In the modern world, this is a hardship for business owners who may lose regular customers to their competitors who do not observe Chol HaMoed. The poskim consider loss of regular customers as a davar ha’avud that allows the business to make some accommodations. Details of this halacha are discussed by the poskim and each store owner should ask his Rav what to do (see Biyur Halacha 539:5).

MOVING

Although one could theoretically change dwellings in a way that involves no melacha, the move itself is very strenuous and distracting. Therefore, Chazal forbade moving on Chol HaMoed (Mishnah, Moed Katan 13a). Sometimes moving results in an enhancement of Yom Tov, under which circumstances Chazal permitted it. Again, if someone feels that his particular circumstances may be included, he/she should ask his Rav.

EASY WORK

On the other hand, one is permitted to do melacha that does not detract from the atmosphere of Chol HaMoed. Therefore, Chazal permitted moving muktzah items (Tosafos, Shabbos 22a s.v. Sukkah) on Chol HaMoed since this does not disturb the purpose of the day. Similarly, many poskim permit performing an actual melacha if it involves little effort, even if it does not fulfill any festival purpose (Terumas HaDeshen #153). According to these opinions, one may strike a match or take a photograph on Chol HaMoed even if no festival need is involved. There are poskim who dispute this and permit such activities only to fulfill a festival need (see Shu”t Radbaz #727).

FOOD PREPARATION

Chazal permitted activities that enhance Chol HaMoed and Yom Tov, such as cooking and shopping for Yom Tov and traveling for festival purposes. One may grind, select, knead and perform other standard kitchen activities for Yom Tov or Chol HaMoed meals but should not prepare for after Yom Tov.

This presents us with a problem that many people overlook. Since one may not cook on Chol HaMoed for after Yom Tov, someone living in Eretz Yisroel who observes one day of Yom Tov may not cook on Chol HaMoed for Acharon shel Pesach or Simchas Torah of Chutz La’Aretz for one’s Chutz La’aretz guests because these days are no longer Yom Tov for a resident of Eretz Yisroel. Thus, one is cooking on Chol HaMoed for after Yom Tov. This can result in an interesting problem. The visiting guests need to be served a special Yom Tov meal on the evening of Acharon shel Pesach or their Simchas Torah, yet the host/hostess, who lives in Eretz Yisroel, may not cook this meal on Chol HaMoed.

This problem has a simple solution if one plans in advance. One can either wait until after Yom Tov is over to begin cooking or one may cook a lot on Chol HaMoed for Shmini Atzeres (called Simchas Torah in Eretz Yisroel) or the Seventh day of Pesach, making sure to serve something from each course on the Eretz Yisroel’s Simchas Torah (Shmini Atzeres) or Shvi’i shel Pesach. Then one serves the “leftovers” on the last day.

MAASEH HEDYOT, UNSKILLED WORK

Chazal permitted making and repairing items that are needed on Chol HaMoed, provided one does not use a skilled method (maaseh uman) to do so. For example, one may tune an instrument if it requires no special skills (Shu”t Shvus Yaakov #25). Shulchan Aruch (540:5) rules that one may build an animal’s trough in an unskilled way. Similarly, one may perform household repairs that serve a festival purpose in an unskilled manner (Shulchan Aruch 540:1). However, they may not be performed in a skilled way unless a financial loss is involved (Shulchan Aruch 537:1).

Many years ago, a talmid chacham visited me on Chol HaMoed and noticed that one of our front steps was damaged and somewhat dangerous. Ruling that repairing the step is a meleches hedyot, he proceeded to measure the step, purchased a suitable piece of lumber and nailed it in.

However, one may not do skilled work in general on Chol HaMoed. Therefore, one may not develop film even for a festival purpose since this is skilled work. However, one may use a digital camera, even though the picture “develops” on Chol HaMoed, since no skill is involved. Similarly, one may not repair shoes on Chol HaMoed since this is skilled work. Theoretically, one may repair them in an unskilled way or with a shinui, meaning in an unusual way; however, neither of these methods is a practical way to repair shoes. As we will see later, one may not have a gentile shoemaker repair them either.

MAY I REPAIR A GARMENT FOR YOM TOV WEAR?

One may repair a torn garment in order to wear it on Yom Tov or Chol HaMoed, but only if one sews it in a highly unusual way or it is sewn by an unskilled person (Mishnah Moed Katan 8b). In this instance, Chazal permitted the use of a shinui (doing something in an unusual way) for the sake of Yom Tov or Chol HaMoed. However, a skilled person may not sew in a normal way even to fulfill a festival need.

Why did Chazal draw a distinction between skilled and unskilled work, and with a shinui and without? Does it enhance the spirit of Yom Tov by requiring the use of a shinui to repair a garment?

It appears that Chazal felt that regulating how one performs this activity reminds someone that today is Chol HaMoed even while engaged in a melacha activity. This enhances the spirit of Yom Tov that should imbue all the days of Chol HaMoed.

“A WORKER WHO DOES NOT HAVE FOOD TO EAT”

Chazal permitted a worker who cannot provide his family with meat and wine for Yom Tov to work on Chol HaMoed (Biyur Halacha 545:3; cf., however, the Magen Avraham 542:1, says that only a worker who cannot provide bread for Yom Tov may work.) It is self-understood why permitting this melacha enhances Yom Tov.

DAVAR HA’AVUD, FINANCIAL LOSS

One of the situations where Chazal permitted working on Chol HaMoed is when financial loss will result if the job waits until after Yom Tov. This is allowed because otherwise someone may worry about his loss and spoil his simchas Yom Tov (Ritva, Moed Katan 13a).

Another application of financial loss is that one may repair a broken lock or a broken alarm system on Chol HaMoed (Mishnah Moed Katan 11a). Similarly, someone may remove a stain from a garment that might become ruined. An employee may go to work on Chol HaMoed if taking vacation will jeopardize his job. However, if he can take unpaid vacation on Chol HaMoed without jeopardizing his job, he may not work.

Someone may purchase an item that he will definitely need after Yom Tov if the item is on sale during Chol HaMoed. Poskim conclude that this is considered a davar ha’avud (Shulchan Aruch Orach Chayim 539:9).

Because of davar ha’avud, the Mishnah (Moed Katan 2a) permits watering an irrigated field on Chol HaMoed, if a week without water will harm the growing produce. However, one may not irrigate a field that receives adequate rain, even though it benefits considerably from additional water. The latter situation is one of creating profit, for which I may not do melacha on Chol HaMoed, because one may only do melacha to avoid loss and not to avoid loss of profit (Shulchan Aruch Orach Chayim 537:1). Thus, although one may not engage in commercial activity in order to generate new business, one may service existent customers.

The rationale for distinguishing between loss and potential profit is that people become upset when they lose something they already own and this then disturbs their Yom Tov, but are bothered much less when they lose potential profit.

LAUNDRY

Chazal prohibited laundering, shaving and haircutting on Chol HaMoed precisely in order to enhance Yom Tov. In earlier days, people did their laundry and shaved very occasionally and could have postponed attending to them before Yom Tov. To enhance Yom Tov observance, Chazal prohibited laundering, shaving and haircutting on Chol HaMoed to guarantee that people would make sure to attend to such things before Yom Tov.

Chazal permitted laundering handkerchiefs and children’s clothes, since even if they are washed before Yom Tov they get soiled very quickly (Mishnah Moed Katan 14a; Shulchan Aruch 534:1).

Many poskim permit removing a spot from a garment on Chol HaMoed, contending that this was not included in the gezeirah. However, one may not have this garment dry cleaned even at a gentile’s shop since this would indeed violate the gezeirah against doing laundry. One may iron because it is not included in the gezeirah (541:3). However, one may not make a new pleat because it is skilled work [meleches uman] (Magen Avraham 541:5).

WORK THROUGH A GENTILE

May a gentile do work on my behalf on Chol HaMoed that Chazal prohibited me to do myself?

In general, if I may not do something myself on Chol HaMoed, I may not have a gentile do it either (Gemara Moed Katan 12a; Shulchan Aruch Orach Chayim 543:1). However, if the non-Jew is a contractor paid by the job, there are some situations when I may allow him to work on Chol HaMoed.

WHY IS THIS CASE DIFFERENT?

When I pay someone by the job, it is halachically viewed as if he is working for himself and not for me. Therefore, when I hire a non-Jewish contractor and he chooses to work on Shabbos or Chol HaMoed, it is not considered that someone is working for me on these holy days. I may therefore allow him to work on Chol HaMoed, provided no one thinks that he is my employee.

Therefore, if I meet the following conditions, I need not prevent the gentile from working on Chol HaMoed:

1. I pay him a flat fee to complete the job, not an hourly or daily wage.

2. I do not instruct him to work on Chol HaMoed, and I hire him before Yom Tov.

3. The gentile performs the work in a way that Jews do not know that he is working for a Jew. Thus, the gentile must work on his own premises and in a way and place that no one knows that he is working for a Jew.

I will explain this halacha with an actual case: Friedman’s Department Store, which is located outside a Jewish community, retains Tim McCartney as a contract gardener to maintain the lawn and hedges around the store. Must Mr. Friedman insist that his gentile gardener not work on Shabbos, Yom Tov, Chol HaMoed, even when it fits his regular routine?

The halacha is that Mr. Friedman may allow Tim to work on Shabbos or Yom Tov, but must insist that he refrain on Chol HaMoed.

HOW CAN CHOL HAMOED BE STRICTER THAN SHABBOS?

Since Friedman’s Department Store is not walking distance to any Jewish community, we may assume that no observant Jew will see Tim trimming the hedges on Shabbos and Yom Tov and think that Mr. Friedman hired him to work on Shabbos or Yom Tov. Therefore, since Tim is a contractor he may do the work (Gemara Moed Katan 12a; Shulchan Aruch, Orach Chayim 244:1).

However, on Chol HaMoed a frum Jew might be traveling and see Tim mowing Friedman’s lawn and think that a Jew hired Tim to work on Chol HaMoed. Therefore, Tim may not mow the lawn or trim the hedges on Chol HaMoed (Gemara Moed Katan 12a; Shulchan Aruch, Orach Chayim 543:2). (The irony is that he may on Shabbos or Yom Tov!)

Chol HaMoed provides many unique mitzvah opportunities. By observing it properly, we demonstrate the tremendous os between Hashem and us. May we always merit to demonstrate Hashem’s presence amongst us and in His world!!

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Making Our Days Count

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A Review of the Halachos of Sefiras HaOmer

In Parshas Emor, the Torah teaches: “Hashem spoke to Moshe saying, Speak to the Children of Israel and say to them: ‘When you enter the land that I am giving to you and you will cut its harvesting, then you shall bring an omer-sized portion from the first of its harvest to the Kohen. And he (the Kohen) shall wave the omer before Hashem for your benefit, on the day after the ‘day of rest’ the Kohen shall wave it… And you should count for yourselves from the day after the ‘day of rest, from the day you bring the omer of waving, until there will be seven complete weeks. Until the day after the seventh week, you shall count fifty days.’” (Vayikra 23:9-11,15-16). It should be noted that the words in the posuk, mimacharas hashabos, which we have translated as the “the day after the ‘day of rest,’” would usually be translated “the day after Shabbos”. However, the Oral Torah (Torah shebaal peh) teaches us that the words “day of rest” here mean the first day of Pesach (Menachos 65b). Thus, the omer offering is brought on the second day of Pesach, whether or not that date falls on the day after Shabbos. From the day that we bring the omer offering we begin to count the omer, until we complete the counting of seven weeks.

The Gemara recounts a fascinating story that occurred at the time of the Second Temple. There was a group of non-believing Jews, the Baytusim, who disregarded the teachings of Chazal. (Indeed, the Baytusim also disavowed belief in reward and punishment and other basic Jewish tenets, see Avos diRabbi Nassan, Chapter 5:2). Since the Baytusim followed their own interpretation of the posuk, they decided that the korban omer must be offered on a Sunday and not necessarily on the second day of Pesach. They plotted to have Rosh Chodesh Nisan fall out on Shabbos, realizing that the second day of Pesach would then fall out on Sunday. The result would be that the korban omer would be offered on Sunday, even though it was not supposed to happen that particular year.

The Baytusim were so determined to have the korban omer offered on Sunday that they hired false witnesses in an attempt to manipulate the main Besdin to declare Rosh Chodesh Nisan on a Shabbos. Fortunately, one of the witnesses that they hired did not believe in the Baytusi creed and told the Rabbonim about the plot (Gemara Rosh HaShanah 22b). Because of this event, major changes were instituted in the type of witnesses accepted by the Besdin (Rosh HaShanah 22a).

As mentioned above, the mitzvah of counting omer begins from the day that the korban omer is offered. This implies that when there is no korban omer, there is no requirement min hatorah to count the omer (Menachos 66a). Indeed, most poskim contend that since there is unfortunately no Beis Hamikdash today and there are no korbanos, there is no mitzvah min hatorah to count omer (Ran, end of Pesachim; see Shulchan Aruch 489:3 and Mishnah Berurah). However, Chazal instituted that we should count omer even though there is no Beis Hamikdash in order to remember the mitzvah as it was at the time of the Beis HaMikdash. (Menachos 66a).

Details About the Counting

Before counting the Omer, we recite a brocha on the performing of the mitzvah. One should be careful to stand while reciting both the brocha and the counting (Rosh, end of Pesachim; Shulchan Aruch 489:1).

The Torah states: “And you should count for yourselves… seven complete weeks. Until the day after the seventh week, you shall count fifty days.” It is noteworthy that the Torah makes two statements, one that we should count seven weeks, and a second that we should count fifty days. Based on this observation, the Gemara derives that there are two mitzvohs, one to count the days and the other to count the weeks (Menachos 66a).

Tosafos raises the following question: Why does the Torah say, “Until the day after the seventh week, you shall count fifty days,” if the mitzvah is to count for only forty-nine days? Tosafos explains that the verse should be translated: “Until the day after the seventh week, which is the fiftieth day, shall you count” (Menachos 65b s.v. Kasuv.) According to this translation, there is a mitzvah to count up until the fiftieth day, which is Shavuos, but that there is no mitzvah to count the fiftieth day itself.

As mentioned above, the Gemara rules that there is a mitzvah to count the weeks. Obviously, there is no mitzvah to count the weeks until the end of the first week — at which point there is a mitzvah to state that one week of counting has been completed. From this point on, is there a mitzvah to mention the weekly count every day, or is it sufficient to count the weeks only at the end of each week? According to the latter interpretation, one counts the weeks only seven times, once at the end of each week (Tur, quoting Yesh Omrim). However, the accepted opinion is that every day of sefirah (except for the first six days) one counts the number of days and then one calculates how many weeks and days. Thus, on the eleventh day of sefirah we count, “Today is eleven days, which is one week and four days in the omer” (Shulchan Aruch, Orach Chayim 489:1). (According to the first opinion cited above [that of Tur, quoting Yesh Omrim], there is no mitzvah to count the weeks on the eleventh day. According to this opinion, the entire counting is: “Today is eleven days.”)

Some Practical Applications

Someone who counts the wrong number has not fulfilled the mitzvah. However, if he remembered immediately and corrected his error, he has fulfilled the mitzvah (Mishnah Berurah 489:32).

One should not recite the blessing without knowing the day’s exact count, even if he knows that he will hear the correct count from someone else immediately. Rather, one should first find out what the correct count is before reciting the blessing (Mishnah Berurah 489:29 and Shaar HaTziyun ad loc.).

Sefirah can be counted in any language, provided one understands what he is saying. Someone who does not understand what he is saying has not fulfilled the mitzvah, even if he counts in Hebrew (Magen Avraham).

A very common question is whether one who missed counting one day of sefirah may still recite a brocha when he counts the remaining days. Some early poskim contend that someone who missed counting one day has no mitzvah to count the remaining days since his counting of forty-nine days is no longer complete (Tur, quoting Bahag). According to this opinion, someone who missed one day may continue to count sefirah, but he is forbidden to recite a brocha since he is no longer fulfilling a mitzvah. However, other poskim contend that missing one day does not affect the upcoming days. In their opinion, each day there is a mitzvah to count the sefirah of that day even if one has not counted the preceding days (Tur, quoting Rav Hai Gaon). Shulchan Aruch (489:8) treats this shaylah as an unresolved issue. Thus he rules that someone who missed counting one day of sefirah should count the remaining days without a brocha. The count should continue because it is possible that he is still fulfilling the mitzvah. Yet he does not recite a brocha, because if he is no longer fulfilling a mitzvah the brocha would be a brocha li-vatala (a brocha recited in vain).

In this case, and all other cases where there is a doubt whether one is still fulfilling the mitzvah, it is preferable to hear the brocha from someone who is definitely required to count (Mishnah Berurah ad loc.). The person reciting the brocha must have in mind to include the other person in his brocha, and the person who is not reciting the brocha must have in mind to be included in the brocha. If there is no one available to make the brocha for him, he should count sefirah without a brocha.

An Interesting Shaylah

There is another interesting shaylah that results from the above-mentioned dispute whether each day’s sefirah counting is dependent on still having a complete count: Does a boy who becomes bar mitzvah between Pesach and Shavuos recite a brocha on the counting of sefirah? Even if the twelve-year old was counting sefirah every night very diligently, he was not fulfilling a mitzvah since he was still a minor. Thus, if the mitzvah of counting sefirah is dependent on a complete count, the bar mitzvah bochur may not have a complete sefirah count.

Many poskim discuss this issue and there is no common agreement what to do. (See for example, Birkei Yosef 489:20; Shaarei Tshuva 489:20; Shu”t Maharam Shick #269; Shu”t Har Tzvi 2:76.) Therefore, one should ask his Rav for a ruling on this shaylah.

As we mentioned above, someone who missed one day of sefirah should continue counting but without a brocha. However, someone who is not sure if he missed counting one day may still count with a brocha (Shulchan Aruch 489:8). Since it is not certain that his counting is incomplete, he can rely on the possibility that his counting is still complete with the possibility that the halacha is that one can recite a brocha even if the count is incomplete. This concept is called a sfek sfeika, which means that there are two possibilities why it is permitted to do something. In this case, the two possibilities that it is acceptable to recite the brocha allow him to recite a brocha.

Similarly, in any other case where it is questionable whether he fulfilled the requirement to count, or where the law is that he should count without a brocha on a particular night, the halacha is that he may proceed to continue counting the next night with a brocha (Mishnah Berurah 489:38).

If on a given night someone counted sefirah without reciting a brocha first, he may not recite the brocha afterwards for that day’s counting. Although he fulfilled the mitzvah of counting omer that night, he is unable to fulfill the mitzvah of making a brocha on the counting. Therefore, one should be careful not to tell someone what night of sefirah it is before one has fulfilled the mitzvah (Shulchan Aruch 489:4). The accepted practice is to respond to the question “What night is it?” by stating what was the count of the previous day.

Some Unusual Applications

What is the halacha if someone alluded to the correct number of the day’s omer count, but did so in an unusual way? For example, has someone fulfilled the mitzvah if he counted on the thirty-ninth day of the omer that today is “forty days minus one”? Is this considered a valid method of counting thirty-nine days, or must one count thirty-nine in a direct way? The halacha is that this unusual method of counting is considered counting, and he has fulfilled the mitzvah (Be’er Heiteiv 469:6).

Another shaylah about an unusual method of counting has very common application.

In Hebrew, one can allude to a number by reciting the Hebrew letter or letters that represent it. For example, one could attempt to count the eleventh day of sefirah by stating that today is yud alef b’omer, or attempt to count the thirty-third day of sefirah by counting that today is lag b’omer. Poskim dispute whether one fulfills the mitzvah if one counts this way. Whereas some poskim rule that this is a valid method of counting, other poskim rule that he has not fulfilled the mitzvah since he did not count the number explicitly (Shaarei Tshuvah 489:6).

There is a very common shaylah that results from this dispute. On the evening of Lag B’omer someone stated “tonight is Lag B’omer” before he counted sefirah. Can he still recite a brocha on the counting of sefirah that night, or do we say that he has already counted for that night and cannot recite the brocha anymore? Biyur Halacha rules that this issue remains unresolved. Therefore, one should count in the regular way to make certain he fulfills the mitzvah, but without a brocha since it is a doubt whether he is still obligated to perform the mitzvah (Biyur Halacha 489:1 s.v. moneh). On subsequent nights he would be able to resume counting with a brocha.

The Korban Omer was harvested at night, hence the mitzvah of counting Omer is at night. If the omer was not harvested at night, there is a dispute among poskim whether it could be harvested instead in the daytime (Tosafos Menachos 66a). The same dispute is reflected in a different shaylah that is germane to each of us: If someone forgot to count the omer at night, can he still fulfill the mitzvah if he counts in the daytime? Since the matter is disputed, he should count in the daytime, but without a brocha, since we refrain from making a brocha whenever it is uncertain whether one is performing a mitzvah (Shulchan Aruch 489:7). The accepted psak halacha is that he may resume counting with a brocha the following evening (Mishnah Berurah 489:34).

What Happens if…

As we mentioned above, according to most poskim the mitzvah of counting the omer is only rabbinic in our era since unfortunately the Beis HaMikdash is destroyed. Some poskim contend that since the counting is only midirabanan one is permitted to count the omer before it is definitely nightfall (Rosh and other Rishonim, end of Pesachim). Thus, the practice developed in some communities to count the omer during twilight even though it is uncertain whether it is day or night. Shulchan Aruch rules that one should preferably wait until after nightfall to count. However, someone who is davening in a shul where the people are counting before nightfall is permitted to count with them lest he forget to count later (see Shulchan Aruch 489:2-3). In this situation, Shulchan Aruch rules that he should count together with the shul without a brocha and have in mind that if he remembers later, he will count again. If he indeed remembers to count again, then he recites a brocha and counts a second time.

This ruling seems very strange. How can one count the second time with a brocha—didn’t he fulfill the mitzvah the first time he counted? Counting with a brocha should be a brocha li-vatala, a brocha recited in vain!

The answer is that when he counted the first time, he made an automatic condition that if he indeed remembers to count again later, he does not want to fulfill the mitzvah now. It is considered that he specified that he does not want to fulfill the mitzvah. However, if he forgets to count later, then the first counting he performed is valid, since his condition was not fulfilled. Thus, he will rely on the opinions that counting sefirah before nightfall is valid, and he may resume counting the following night with a brocha.

Is writing out the number count of the sefirah considered counting sefirah? If someone wrote a letter before he had counted sefirah, and he dated the letter with that night’s sefirah count, may he still count sefirah with a brocha? This issue is discussed at length by poskim. The conclusion is that although writing shows the intention of the person, it does not constitute speaking. When a mitzvah requires one to speak, such as saying Shma, reciting tefila, or counting omer, one does not fulfill his mitzvah by writing. Thus, someone who dated a letter with the night’s sefirah count before he counted sefirah can still recite a brocha on the night’s sefirah count.

As mentioned above, the Torah associates the counting of the sefirah with the offering of the korban omer. An additional idea is conveyed by the Medrash. When the Jews brought the Pesach offering in Egypt, they were eager to receive the Torah immediately. When they asked Moshe, “When do we receive the Torah?” he answered them, “On the fiftieth day”. In their enthusiasm, each of them counted every day, eagerly awaiting the exciting day on which they would receive the Torah. In commemoration of this event, we count the days from Pesach until Shavuos. (This Medrash is quoted by Ran at the end of Mesechta Pesachim.) We should all be zocheh to anticipate receiving the Torah anew on Shavuos with the same excitement and enthusiasm that our ancestors had.

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Indigestible Matzos, or Performing Mitzvos When Suffering from Food Allergies

clip_image002[1]Question #1: I have acid reflux, and as a result I never drink any alcohol since it gives me severe heartburn. I also have difficulty tolerating grape juice, which does not agree with me. Am I required to drink either wine or grape juice for the four cups at the Seder?

Question #2: My body is intolerant to gluten. Am I required to eat matzoh on Pesach, and if so, how much?”

Question #3: How far must one go to fulfill the mitzvah of maror when the only variety available is straight horseradish?

Consuming matzoh, maror, wine or grape juice is uncomfortable for many people for a variety of reasons. Consumption of these foods exacerbates many medical conditions, such as allergies, diabetes, celiac disease, Crohn’s disease, irritable bowel syndrome, and reflux. To what extent must someone afflicted by these conditions extend him/herself to fulfill these mitzvos? Does it make a difference whether the mitzvah is required min haTorah, such as matzoh, or only miderabbanan, such as arba kosos, the mitzvah of drinking the four cups of wine at the Seder. (Similarly, the mitzvah of maror, is required today only miderabbanan since the Torah requires eating maror only when we offer the korban pesach.)

PIKUACH NEFESH

One is never required to perform a positive mitzvah when there is a potential threat to one’s life. Quite the contrary, it is forbidden to carry out any mitzvah whose performance may be life threatening. Therefore, someone who has a potentially life-threatening allergy to grain may not consume matzoh or any other grain product – ever — and this prohibition applies fully on Seder night.

NOT DANGEROUS BUT UNPLEASANT

However, must one observe these mitzvos when the situation is not life threatening, but is painful or affects one’s wellbeing? Must one always fulfill the mitzvah even though doing so is extremely uncomfortable or makes one unwell? As always, our column is not intended to provide psak halacha; that should be left for one’s personal rav. Our goal is to provide halachic background.

RABBI YEHUDAH’S HEADACHE

The Gemara reports that the great Tanna Rabbi Yehudah, who is quoted hundreds of times in the Mishnah and Gemara, suffered from the consumption of wine. The Gemara tells us the following anecdote:

Rabbi Yehudah looked so happy that a Roman woman accused him of being inebriated. He responded that he is a teetotaler, “Trust me that I taste wine only for kiddush, havdalah and the four cups of Pesach. Furthermore, after drinking four cups of wine at the Seder, I have a splitting headache that lasts until Shavuos” (see Nedarim 49b).

This passage implies that one is required to undergo a great deal of discomfort to fulfill even a mitzvah that is rabbinic in origin, and certainly a Torah-required law, such as consuming matzoh on Pesach. Based on this anecdote, the Rashba (Shu”t 1:238) requires someone who avoids wine because he despises its taste or because it harms him (“mazik”) to drink the four cups; this conclusion is quoted definitively in Shulchan Aruch (Orach Chayim 472:10). Thus, one might conclude that one must fulfill arba kosos in any non-life-threatening situation even when the consequences are unpleasant.

However, several authorities sanction abstaining from arba kosos under certain extenuating, but not life-threatening, circumstances, even though they also accept the ruling of the Shulchan Aruch! For example, the Aruch HaShulchan (472:14) permits someone who is ill to refrain from consuming the four cups on Seder night and the Mishnah Berurah rules similarly (472:35). They explain that the harm (in Hebrew, mazik) one must undergo to fulfill the mitzvah does not include physical harm, but is limited to discomfort or moderate pain.

DERECH CHEIRUS

In Shaar HaTziyun, the Mishnah Berurah explains why he permits refraining from arba kosos under such circumstances: Becoming bedridden because one consumed arba kosos is not derech cheirus, which I will translate as demonstrating freedom. His reference to derech cheirus alludes to the following Gemara:

One who drinks the wine undiluted has fulfilled the requirement of arba kosos, but he did not fulfill the requirement of demonstrating freedom (Pesachim 108b).

What does this Gemara mean? Why does drinking one’s wine straight not fulfill this mitzvah called demonstrating freedom?

The wine of the Gemara’s era required one to dilute it before drinking. Imbibing it straight was not the normal method of drinking and therefore does not demonstrate the freedom that the Seder emphasizes.

The Mishnah Berurah contends that a mitzvah whose purpose is to demonstrate that we are freemen cannot require becoming bedridden as a result. Although a potential massive headache, such as what affected Rabbi Yehudah, does not exempt one from the mitzvah, becoming bedridden is qualitatively worse. The Aruch HaShulchan rules similarly, although he omits the reasoning of derech cheirus, and simply assumes that the mitzvah could not apply under these circumstances.

(There may be a difference in opinion between the Mishnah Berurah and the Aruch HaShulchan germane to mitzvas maror. The Mishnah Berurah’s reason of derech cheirus applies only to the arba kosos, and therefore he might hold that one must eat maror even if he becomes bedridden as a result. However, the Aruch HaShulchan’s ruling may apply to any rabbinic mitzvah, and thus permit someone who would become ill from eating maror to abstain from performing this mitzvah.)

ALCOHOLIC CONTENT

Let us assume that our patient could drink grape juice without any ill result, but may have some difficulty with wine. Is there a requirement for him/her to drink wine?

The Gemara states that “One may squeeze a cluster of grapes and then immediately recite Kiddush over it” (Bava Basra 97b). Obviously, this grape juice has no alcoholic content, and yet it is acceptable for Kiddush.

However, the Gemara’s ruling that someone who drank the arba kosos without dilution does not fulfill cheirus implies that the Seder mitzvah requires a wine with alcoholic content, and therefore grape juice does not perform this aspect of the mitzvah. Nevertheless, someone who cannot have any alcohol may fulfill the mitzvah of arba kosos with grape juice (Shu”t Shevet HaLevi 9:58).

DILUTING WINE

Is it better for someone to dilute their wine with water rather than drink grape juice?

Some authorities contend that one fulfills this concept of cheirus as long as one can detect alcoholic content, even though the wine is diluted. However, before diluting our wine with water, contact the manufacturer or the hechsher, since some wines are already diluted to the maximum halachically allowable and still recite over it hagafen. The Pri Megadim (Eishel Avraham 204:16) rules that although Chazal diluted their wine significantly (Shabbos 77a), our wine is very weak and should be diluted very moderately. He contends that if one adds more water than wine the bracha becomes shehakol; one can certainly not use this wine for Kiddush or arba kosos. The Aruch HaShulchan (204:14) rules even stricter, that any added water renders our wines into shehakol and invalidates them for Kiddush or arba kosos. I suspect that this was not a dispute, but a reflection of the quality of the wine available; the wine available to the Pri Megadim could be diluted without ruining it as long as there was more wine than water, whereas that available to the Aruch HaShulchan was easily ruined.

On the other hand, diluting wine with grape juice does not jeopardize the bracha, and if the alcohol content is still noticeable still fulfills the concept of cheirus.

ARBA KOSOS SUBSTITUTES

If someone cannot drink four cups of wine or grape juice, should they simply not drink anything for the arba kosos?

The Mishnah Berurah rules that one may substitute chamar medinah, literally, the national “wine.” This follows a ruling of the Rama (483) that someone who has no available wine may fulfill the mitzvah of arba kosos with chamar medinah.

Exactly what chamar medinah includes is beyond the scope of this article. For our purposes, I will simply note that there is much discussion about this matter, some rabbonim holding that tea or coffee qualifies, others contending that it must be alcoholic, and still others maintaining that most places today have no chamar medinah.

SOME PRACTICAL SUGGESTIONS

Thus far, we have concluded that someone who will become ill enough to be bedridden may not be obligated in arba kosos, but someone who finds drinking four cups of wine or grape juice uncomfortable and even painful, but does not become bedridden as a result, is required to drink them. However, note that sometimes one may be more lenient and use a smaller cup and drink a smaller proportion of its wine than we would usually permit. These are matters to discuss with one’s rav.

WHAT ABOUT MATZOH?

Our second question above read: “My body is intolerant to gluten. Am I required to eat matzoh on Pesach, and if so, how much?”

Our previous discussion only explained the rules pursuant to drinking the four cups of wine, which is a rabbinic mitzvah. Does any leniency exist to exempt someone from eating matzoh Seder night in non life-threatening situations? Granted, that one is certainly not required or permitted to eat matzoh if doing so may be life threatening, but if the results are simply discomfort, to what degree must one extend oneself to observe a positive mitzvah min hatorah?

The Binyan Shelomoh (#47), a nineteenth century work authored by Rav Shelomoh of Vilna, the city’s halachic authority at the time, discusses this very issue. (Out of deference to the Vilna Gaon, the Jewish community of Vilna appointed no one to the title of rav from the passing of the Gaon until the government required them to do so in the era of Rav Chayim Ozer Grodzenski over a hundred and twenty years later.) In a lengthy responsum, The Binyan Shelomoh establishes how far must someone ill go to eat matzoh when there is nothing life threatening. He based his analysis on the following law:

Chazal prohibited spending more than one fifth of one’s money to fulfill a positive mitzvah (Rambam, Hilchos Arachin 8:13, based on Gemara Kesubos 50a. See also Rambam’s Peirush HaMishnayos Pei’ah 1:1).

The Binyan Shelomoh reasons that since maintaining good health is more important to most people than spending a fifth of one’s money, one is exempt from performing a mitzvah that will impair one’s health even when there is no risk to one’s life. (We find other authorities who derive similar laws from this halacha. See for example, Shu”t Avnei Nezer, Yoreh Deah #321; Shu”t Igros Moshe, Even HaEzer 1:57). The Binyan Shelomoh applies this rule to all mitzvos: One is exempt from observing any mitzvah if fulfilling it will seriously impair one’s health. Furthermore, one could conclude that if fulfilling a mitzvah causes such intense discomfort that one would part with one fifth of one’s financial resources to avoid this pain, one may forgo the mitzvah.

According to the Binyan Shelomoh, if this law is true regarding matzoh, it will certainly hold true regarding arba kosos and maror, which are only rabbinic requirements. Thus, someone who will not be bedridden as a result of consuming arba kosos or maror, but whose health will be severely impaired as a result of this consumption is absolved from fulfilling this mitzvah, as will someone to whom the consumption is so unpleasant that he would gladly part with one fifth of his earthly possessions to avoid this situation.

DIFFERENCE BETWEEN MATZOH AND WINE

If we assume that the Mishnah Berurah accepts the Binyan Shelomoh’s approach and vice versa, we would reach the following conclusion:

MATZOH:

Someone whose health will be severely impaired is not required to eat matzoh on Pesach, even if no life-threatening emergency results.

ARBA KOSOS:

In addition to the above leniencies regarding matzoh, there is an additional lenience regarding the arba kosos. Someone who will become sick enough that they will become bedridden is absolved from drinking four cups at the Seder, even though it will not result in any permanent health problems. However, it is unclear whether this latter leniency also extends to the rabbinic mitzvah of maror.

NON-WHEAT FLOURS

In the last few years, matzoh for Pesach produced from either spelt or oat flour has become available. For a variety of reasons beyond the scope of this article, only someone who may not eat regular matzoh should eat these matzohs on Pesach. However, someone who is absolved from eating matzoh on Pesach according to the above-mentioned definition, but who can eat either of these varieties of matzoh, should eat them to fulfill the mitzvah on the first night of Pesach. Someone who can tolerate both spelt and oat matzoh should eat spelt.

No discussion of this topic is complete without mention of the following responsum by the great nineteenth century authority, the Maharam Shik (Shu”t #260). Someone for whom eating matzoh or maror is potentially life threatening insisted on eating them at the Seder against the halacha. The Maharam Shik was asked whether this person should recite the bracha al achilas matzoh before eating the matzoh and al achilas maror before eating the maror!

The Maharam Shik responded that he is uncertain whether the patient may recite any bracha at all before eating the matzoh and the maror, even the bracha of hamotzi! His reason is that consuming harmful food is not considered eating, but damaging oneself, and one does not recite a bracha prior to inflicting self-harm! The Maharam then questions his supposition, demonstrating that someone who overeats recites a bracha even though he is clearly damaging himself. He therefore concludes that one does not recite a bracha when eating something that causes immediate damage. However, when eating something where the damage is not immediate, reciting a bracha before eating is required.

Pursuant to the original shaylah whether one recites al achilas matzoh before eating the matzoh, and al achilas maror before eating the maror, the Maharam Shik concludes that one should not recite these brachos in this situation. Since the patient is not permitted to eat matzoh and maror since it is dangerous to his life, he is not performing a mitzvah when eating them, but a sin of ignoring the proper care his body requires, and one does not recite a bracha prior to transgressing.

In conclusion, anyone to whom these shaylos are unfortunately relevant should discuss them with his/her rav. We found that the Shulchan Aruch rules that one is required to fulfill arba kosos even if one will suffer a severe headache as a result, and certainly if one despises the taste. However, should one become bedridden as a result or suffer severe health consequences, there are authorities who permit forgoing drinking wine or grape juice and substituting a different beverage instead that qualifies as chamar medinah. Similarly, there are authorities who permit forgoing consuming matzoh at the Seder if one would suffer severe health consequences as a result even if the situation is not life-threatening.

Although not everyone may be able to fulfill the mitzvos of eating matzoh, maror, and arba kosos, hopefully, all will be able to discuss the miracles that Hashem performed when removing us from Egypt. In the merit of joyously performing the mitzvos of Seder night, may we soon see the return of the Divine Presence to Yerushalayim and the rededication of the Beis HaMikdash, and be zocheh to fulfill all of these mitzvos including the korban pesach!

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The Matzoh Shoppers Guide

clip_image002The Four Questions of Matzoh Purchasing

The First Question Is: On all other nights of the year we do not check our matzoh and bread, although we sometimes check our flour before we bake with it; on this night of Pesach we check our matzoh before eating it. For what are we checking?

The Second Question Is: On all other nights of the year we eat any kind of matzoh; on this night of Pesach, some people eat only hand matzoh, others eat only machine-made machine, and still others eat hand matzoh for the bracha and machine matzoh afterwards. What is the basis for these different practices?

The Third Question Is: On all other nights of the year we prepare our food leisurely; on this night of Pesach we eat matzoh advertised as special “18-minute matzoh.” But I thought that matzoh dough becomes chometz after 18 minutes, so all matzoh left around longer than 18 minutes before baking should be chometz. So what is special about 18-minute matzoh?

The Fourth Question Is: On all other nights of the year, no guests arrive early in order to “lift up” their food before Yom Tov, but on this night of Pesach some guests arrive before Yom Tov in order to “lift up” the matzos they intend eating at the Seder. Why do only some of my guests ask me if they can do this?

“Father, what is the answer to my four questions?”

“Son, before I answer your excellent questions, hearken to how matzoh is made.”

WE WERE ONCE SLAVES IN EGYPT

Although matzoh is the simplest of products, simply flour and water, much detail is involved at every step to process it halachically correctly. The matzoh that we eat to fulfill the mitzvah on Seder night must be “guarded,” or supervised, to guarantee that it did not become chometz.

The mitzvah of matzoh on Seder night is fulfilled exclusively with matzoh produced lishmah – that is, protecting it from becoming chometz for the sake of the mitzvah. Thus, even if we know by remote-control camera that matzoh was produced 100% kosher for Pesach, but a well-trained team of chimpanzees manufactured it, one cannot use this matzoh to fulfill the mitzvah on Seder night because it was not produced lishmah. Only adult Jews can produce matzoh lishmah (Shulchan Aruch Orach Chayim 460:1). Therefore, before beginning work each day in a matzoh bakery the workers must say: Kol mah she-ani oseh hayom, hareini oseh lisheim matzos mitzvah, “Everything that I am doing today, I am doing for the sake of producing matzos that will be used for the mitzvah.”

Although the Gemara (Pesachim 40a) discusses preparing matzoh lishmah, it is unclear how early in its production one must have active concern that it not become chometz. We need not plant the wheat for the sake of the mitzvah, since nothing at this stage can make the product chometz-dik. Until the grain can become chometz, there is no need to guard it lishmah from becoming chometz.

The early poskim have three opinions concerning the stage when one must prepare matzoh lisheim matzos mitzvah:

(1) From the time of harvesting, which is the earliest time the grain can usually become chometz.

(2) From the time of grinding, at which time it is more probable that the flour could become chometz. In earlier times, most flour mills were located alongside rivers and used the flow of the river as their power source. Thus, there is great concern that the flour could become wet and begin to leaven.

(3) From the time of kneading, when one must certainly be concerned about the possibility of chimutz (fermentation).

Shulchan Aruch (Orach Chayim 453:4) concludes that it is preferable to guard the wheat lishmah from the time of the harvesting, but that it is satisfactory to use wheat that supervised only from the time of grinding. Other poskim require lishmah from the time of the harvest (Pri Chodosh). Nowadays, shmurah matzoh generally refers to matzoh that was supervised against chimutz from the harvest.

HARVESTING CONCERNS

Fully ripe grain can become chometz even while still connected to the ground (Piskei Tosafos, Menachos 208). Thus, in order to guarantee that the grain harvested for matzoh does not become chometz, it is harvested early, before it is fully ripe (Chayei Odom 128:2; Mishnah Berurah 453:22; Bi’ur Halacha to 453:4 s.v. Tov) and when it is dry. Furthermore, we cut the wheat in the afternoon of a dry day to allow the night’s dew to evaporate in the morning. Before cutting the wheat, someone checks to see that it has not yet sprouted. A combine used to harvest shmurah wheat must be clean and dry.

The poskim dispute whether a non-Jew may operate the combine when it harvests the wheat, or whether a Jew must operate it (Sefer Matzos Mitzvah pg. 26). According to the second opinion, harvesting lishmah requires that someone who is commanded to observe the mitzvah actually cuts the grain – and operating a large combine is technically equivalent to swinging a sickle.

Sometimes, it seems that life was simpler when people harvested wheat by hand. A friend of mine born in the Soviet Union once described how his father harvested wheat for matzoh baking with a hand sickle. Even today, some people are mehader to use hand-cut flour for their Seder matzos.

After cutting, the wheat must be stored and transported in a way that guarantees that it remains dry (Sdei Chemed, Vol. 7 pg. 383), and one must make sure that it always remains shamur by an observant Jew (Bi’ur Halacha 453:4 s.v. ulipachos). Furthermore, one must be careful to store it a way that it does not become infested by insects. One must also check grain samples for signs of sprouting, which is considered a chimutz problem (see Rama 453:3). There is a well-established custom that an experienced posek checks the grains before they are ground (Daas Torah to 453:1 s.v. ve’od).

GRINDING THE FLOUR

As mentioned above, most poskim require supervising the grain lishmah from chimutz from the time it is ground into flour. Nowadays, matzoh sold as kosher l’pesach is supervised at least from the time it is ground. This should include care that the wheat was not soaked before it was ground, which is common practice in many places. Furthermore, a mashgiach must carefully inspect the milling equipment to ensure that no non-Passover flour remains in the grinders and filters.

Chazal instituted many halachos to guarantee that the dough does not become chometz prematurely. For example, one should not bake matzoh with freshly-ground flour, but wait a day or two after the grinding to allow the flour to cool so that it does not leaven too quickly (Shulchan Aruch 453:9). They were also concerned that one should not bag the Pesach flour in old sacks previously used for chometz-dik flour. In many countries, non-Pesach grains are covered with leaves before grinding in order that they should be moist when they are ground. This facilitates separating the different parts of the kernel. Of course, this is prohibited for Pesach-dik flour.

SPECIAL WATER: MAYIM SHELANU

Pesach matzoh must be baked exclusively with mayim shelanu, water that remained overnight (Gemara Pesachim 42a). This means that one draws water from a spring, well, or river immediately before twilight and leaves it in a cool place for a minimum of one complete night to allow it to cool (Shulchan Aruch Orach Chayim 455:1 and commentaries). One may draw water for several days at one time (Shulchan Aruch 455:1), provided one draws the water immediately before twilight and then stores it in a cool place, although some poskim prefer that the water be drawn freshly each night (Maharil quoted by Ba’er Heiteiv 455:7). The water should not be drawn or stored in a metal vessel since metal conducts heat and warms the water (Magen Avraham 455:9). In addition, the water should not be drawn or stored in a vessel that has been used previously to hold other liquids since some liquid may mix with the water, and this may cause the dough to rise faster than otherwise (Magen Avraham ibid.). Many contemporary poskim discourage using tap water for matzos because of concern that fluoride and other chemicals introduced into the water may cause the dough to rise more quickly (see Mo’adim U’zemanim 3:261). It is important to note that the requirement for mayim shelanu is not only for the matzos eaten at the Seder, but also for all matzos eaten during the entire Pesach.

The words mayim shelanu, which mean water that rested overnight, also translate as “our water.” This once led to a humorous incident recorded by the Gemara: When Rav Masneh told the public in Papunia that they must use mayim shelanu to bake their matzos, the following day a long line of people stood outside his door, requesting that he provide them with water to bake their Pesach matzos! At this point, he clarified to them that mayim shelanu means “water that rested” and not “our water” (Pesachim 42a).

KNEADING THE DOUGH

One may not knead matzoh dough in a warm area or in a place exposed to the sun. Similarly, one must cover the windows so that no sunlight streams through (see Mishnah Berurah 459:2). Furthermore, one must be very careful that the tremendous heat from the oven does not spread to the other parts of the bakery, warming dough before it is placed into the oven (Shulchan Aruch 459:1). Thus, one must construct a matzoh factory so that dough can be transported to the oven quickly without exposing the kneading area to heat from the oven.

Once the flour and the water are mixed, one must strive to produce the matzoh as quickly as possible (Shulchan Aruch Orach Chayim 459:1). If dough is left un-worked for eighteen minutes, it is regarded as chometz. However, if one works on the dough constantly, we are not concerned if more than eighteen minutes elapses before placing it into the oven. On the other hand, once one begins to work the dough it warms up and may begin to leaven if left idle. Therefore the Shulchan Aruch (Orach Chayim 459:2) rules that once one begins working with the dough, it becomes chometz immediately if one leaves it idle. Although there are more lenient opinions as to whether the dough becomes chometz immediately, all agree that one must not allow unnecessary delay without working the dough (see Mishnah Berurah 459:18; Bi’ur Halacha ad loc.; Chazon Ish, Orach Chayim 121:16). Thus, practically speaking, it is far more important to work constantly on the dough to ensure that it does not begin to leaven, than to guarantee that it takes eighteen minutes from start to finish.

One should not assume that all hand matzoh bakeries have the same standard of kashrus. I once visited a hand matzoh bakery and observed dough sitting on the table ready for baking without anyone working on it. I think that people paying the kind of money this bakery charges for its finished product should not receive matzoh that is only kosher bedei’eid (after the fact).

It is of course a much bigger concern if dough from an earlier batch is not cleaned off hands and equipment and mixes into later batches. All equipment must be cleaned thoroughly to make sure this does not happen.

BAKING PROBLEMS

Several problems can occur during the baking of the matzos. If the baker leaves a matzoh in the oven too long it burns, and if he removes it too soon it becomes chometz. Even if he removes a matzoh from the oven before it is fully baked, he may not return it to the oven to finish (Rama 461:3).

Certain other problems can occur while matzoh is baking. Two very common problems are that matzoh becomes kefulah (folded) or nefucha (swollen). A matzoh kefulah is folded inside the oven in such a way that the area between the folds is not exposed directly to the flame or heat of the oven. This area does not bake properly making the matzoh chometz-dik (Rama 461:5). One may not use the folded part of the matzoh nor the area immediately around the fold (Mishnah Berurah 461:28).

A matzoh nefucha is a matzoh that swells up, usually because it was not perforated properly (Rama 461:5). During baking, air trapped inside the matzoh develops a large bubble. If the swollen area is the size of a hazelnut, the matzoh should not be used (see Mishnah Berurah 461:34 for a full discussion).

To avoid discovering these problems on Yom Tov, one should check one’s matzos before Yom Tov to ascertain that none of the matzos are kefulah or nefucha. I can personally attest to finding both among matzos that I intended to use for the Seder.

Of course you may ask, “Why didn’t the bakery mashgiach notice these matzos and remove them?” I too am very bothered by this question, but nevertheless, I and many other people have found that the matzos one purchases often include kefulos and nefuchos.

Now, my dear son, I am glad you have been so patient, because now I can answer your first question: “On this night of Pesach we check our matzoh before eating it. What are we looking for?” We are checking that there are no folded matzos, or bubbles in the matzos the size of a hazelnut.

At this point, I think we can begin to answer the second question:

“On this night of Pesach, some people eat only hand matzoh, others eat only machine-made machine, and still others eat hand matzoh for the bracha and machine matzoh afterwards. What is the basis for these different practices?”

Although most people today accept the use of machine matzoh for Pesach, it is instructional to understand a major dispute that existed among nineteenth century poskim over their use. The two main protagonists in the original 1850’s controversy were Rav Shlomoh Kluger, Rav of Brody, and the Shaul Umeishiv, Rav Yosef Shaul Natanson. Both of these renowned poskim, as well as dozens of other great Rabbonim who became involved in this dispute, were gedolei yisroel. Unfortunately, the machlokes over the use of machine matzos became as heated as the temperature of the matzoh ovens, with each side issuing broadsides and rallying support from other rabbonim.

Rav Shlomoh Kluger opposed the use of machine-made matzoh on Pesach primarily because of the following three concerns:

1. The economic factor: He was concerned that introduction of machine matzoh would seriously affect the livelihood of many Jewish poor who were employed kneading and baking matzos.

2. The chometz factor: There were major concerns about whether the factories’ matzoh met all the above-mentioned halachic requirements. Among the concerns raised were: Is all dough cleaned off the machinery, or does dough stick to the equipment and remain in place for more than eighteen minutes? Does the machinery work the dough constantly, or does it sit after it has begun to be worked?

Apparently this was a big concern in the early matzoh bakeries. In a teshuvah dated Monday, Erev Rosh Chodesh Nisan 5618 (1858), the Divrei Chayim (Shu’t 1:23) refers to machine matzoh as chometz gamur (unquestionably chometz) based on the way it was produced.

3. The lishmah factor: Another issue involved in the manufacture of machine matzos is whether it is considered lishmah? Is the intent of the person operating an electrically-powered machine considered as making matzos lishmah? The same issue affects many other halachic questions, such as the spinning of tzitzis threads by machine, the manufacture of leather for tefillin straps and batim, and making hide into parchment. Some poskim contend that pushing the button to start a machine is not sufficient to make it lishmah since the pushing of the button only produces the very first action, and the rest happens on its own and is not considered made lishmah (Shu’t Divrei Chayim 1:23). There is much discussion and dispute about this issue in the poskim (see for example, Shu’t Chesed L’Avraham 2:OC:3; Shu’t Maharsham 2:16; Shu’t Achiezer 3:69 at end, Sdei Chemed Vol. 7 pgs. 396-398; Chazon Ish, Orach Chayim 6:10 s.v. vinireh d’ein tzorech; Shu’t Har Tzvi, OC#10; Mikra’ei Kodesh, Pesach II pgs. 11-17.). It is primarily for this reason that many people today who use machine-made matzoh on Pesach, still use hand-made matzoh for the Seder.

It is also curious to note that the initial matzoh machines over which these poskim debated were nothing more that hand turned rollers that quickly made a large quantity of thin dough into circles the way a cookie cutter operates. They enabled a fantastic increase in the output of one small factory.

Thirty years after the original dispute, the issue was still heated as evidenced by the following teshuvah of Rav Yehoshua Trunk of Kutno, widely acknowledged in the latter half of the nineteenth century as the posek hador of Poland.

“On the subject of the new idea brought to knead matzos by machine, G-d forbid that one should follow this practice. Over thirty years ago, all the Gedolei Yisroel in our country prohibited it. At their head were the Av Beis Din of Tshechnov; Rav Yitzchok Meir of Gur (The Chiddushei Rim, the first Gerer Rebbe); and Rav Meir, the Rav of Kalish; all of whom signed the declaration prohibiting their use. Not a single individual was lenient about this matter. I therefore say to our brethren, ‘Do not separate yourselves from your brethren since all the gedolim in our country prohibited this machine and virtually all the people accepted this prohibition” (Shu’t Yeshu’os Molko, Orach Chayim #43). Thus, it appears that in central Poland, where these gedolim lived, hand matzos were used almost exclusively.

Similarly, in a teshuvah penned in the year 5635 (1895), the Avnei Nezer (Orach Chayim #372), renowned posek and gadol hador a generation later, echoed this sentiment with emphasis. He writes that although he had never seen a matzoh factory, he prohibited eating this matzoh based on the fact the previous generation’s poskim had prohibited it, quoting Rav Yehoshua of Kutno.

At about the same time that the Avnei Nezer wrote his above-quoted responsum, the Maharsham (Shu’t 2:16) was asked by the Rav of St. Louis, Missouri, Rav Zecharyah Yosef Rosenfeld, about a matzoh machine that took a half hour to prepare the matzoh. Rav Rosenfeld was highly concerned about several problems regarding this machine. The Maharsham ruled that if all the equipment is kept cool and all the other requirements are met, then the matzoh may be used.

In the contemporary world, one can plan and construct a factory for baking matzos so that a minimal amount of dough adheres to equipment, and mashgichim can supervise that whatever dough sticks is swiftly removed. Someone who purchases machine-made matzoh is relying on the supervising agency or rabbi to guarantee that the operation runs properly.

Many rabbonim and communities contend that it is preferable to use machine matzos because one can control the product better – thus in German communities and in “the old yishuv” in Eretz Yisroel, machine matzos were preferred. Rav Shlomoh Zalman Auerbach zt”l, and his brother-in-law Rav Sholom Shvadron zt”l only ate machine matzos on Pesach, as well as Rav Yosef Breuer zt”l, and I have been told of many other gedolim who ate only machine matzos on Pesach.

Among the reasons quoted for favoring machine matzos are:

1) Kneading by hand takes considerably more time before the matzoh is ready for baking. In addition, the dough is likely to warm up considerably by the hands of the kneader, which may lead to it becoming chometz.

2) Hand matzos are of uneven thickness, so that some parts of the matzoh are burnt while other parts may still be incompletely baked, thus there could be a problem of a matzoh being removed from the oven before it is uniformly baked.

3) Machine matzos are thinner and thus less susceptible to leavening.

Although the following may be unappetizing, I have witnessed someone leaning over the table busily kneading his hand matzoh, while beads of perspiration are falling into the matzoh. Aside from the lack of sanitary conditions, there are also kashrus concerns about matzoh produced this way.

On the other hand, many Chassidic circles eat only hand matzos on Pesach, following the long list of Chassidic poskim who strongly opposed machine matzos. In between these two approaches are those who feel that the kashrus of machine matzos is fine or even preferred, but who are concerned about whether matzoh produced by a machine is considered lishmah. To avoid any halachic problem, they use hand matzos at the Seder, but eat machine matzoh the rest of Yom Tov.

At this point, my son, I can answer your Third Question:

“On all other nights of the year we do not rush to prepare our food quickly, on this night of Pesach we eat matzoh that is advertised as ‘18-minute matzoh.’ What do they mean that they are selling 18-minute matzoh?”

Ideally, one should stop every matzoh machine every eighteen minutes to guarantee that the equipment is completely clean. However, factory owners feel that this is a non-profitable way to operate a matzoh factory. Thus, the equipment usually runs constantly with the hope that no dough sticks to it and remains from one batch to the next. To avoid this problem, many people who use machine matzoh insist on using only matzoh produced after the equipment was stopped for a thorough cleaning and examination. This matzoh is usually called “eighteen minute matzoh,” that is, the machine has not been running for eighteen minutes since it was last thoroughly cleaned.

Different hechsherim have different standards – thus, whether some dough remains on the equipment longer than eighteen minutes will depend on how tight the hechsher’s standards are. It is fair to assume that if the factory is not stopped for cleaning every eighteen minutes that some dough remains on the equipment for more than eighteen minutes from one production to the next. However, even if dough was abandoned on the equipment for over 18 minutes, it is batail, nullified, in the final product.

To quote a friend’s recent observation: “I went to a major matzoh bakery a few years ago where they had two runs simultaneously. One was mehadrin, where they stopped the equipment every 16 minutes for cleaning. The other production was constant, and we witnessed piles of dough building up along the sides of the conveyor belt that eventually mixed into the production dough.”

The Fourth Question was:

“A guest once asked me if he could pick up the matzos on Erev Pesach that he was planning on eating at the Seder. Why did he request this, and why have I never heard of this before?”

The halacha is that to fulfill the mitzvah of eating matzoh, the matzoh must be your property. Thus, one cannot fulfill the mitzvah with stolen matzoh. Some have the practice of being certain that they have paid for their matzoh before Pesach to demonstrate that the matzoh is definitely theirs (based on Mishnah Berurah 454:15).

There is an interesting dispute between poskim as to whether a guest at someone else’s Seder fulfills the mitzvah with matzoh that belongs to the host. Sfas Emes (commentary to Sukkah 35a s.v. biGemara asya) contends that one can fulfill the mitzvah of matzoh only with matzoh that one owns to the extent that one would be able to sell it. Therefore, a host must give to each of his guests their matzoh as a present before they eat the mitzvah or they have not fulfilled the mitzvah. However, the universally accepted practice is to follow the opinion of the Mishnah Berurah (454:15) who states that one fulfills the mitzvah with borrowed matzoh.

May we all be zocheh to eat our matzoh this year together with the Korban Pesach in Yerushalayim.

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Only the Choicest of Wine – What’s Best for Kiddush and Arba Kosos?

clip_image002Yankel enters my study, with one of his inquisitive looks on his face.

“Rabbi,” he begins, “I have heard that it is best to use red, non-pasteurized wine at the seder. However, my father-in-law likes Chablis, which is a white wine, and my mother-in-law never drinks any wine. The grape juice she likes is from concentrate, and someone told me that one cannot use it for kiddush. What should I do?”

Knowing that Yankel likes very complete explanations, I prepared myself for a lengthy conversation.

“Let us divide your shaylah into its four constituent parts: Color, cooked (mevushal), alcohol, and concentrate. We’ll discuss each part of the shaylah separately and then we’ll see what is preferable to use.”

RED OR WHITE

The Gemara (Bava Basra 97b) quotes the following discussion: Rav Kahana asked Rava “May one use chamar chivaryin, white wine.” Rava answered him by quoting a pasuk in Mishlei (23:31), “Do not pay attention to how red your wine becomes,” (meaning focus your life on permanent, spiritual values and not on the transient and physical). The pasuk implies that the redder the wine, the better its quality.

This Gemara, which is discussing the requirements of wine for kiddush and other mitzvos, implies that one may not use white wine for kiddush, and indeed this is the way the Ramban rules (ad loc.). However, Rashbam concludes that the Gemara is discussing only whether white wine is kosher for nisuch (libation) on the mizbeiach, but it may be used for kiddush. Others reach the same conclusion that our white wine is acceptable for kiddush, but for a different reason. They contend that the Gemara is not discussing quality white wine, but inferior wine that has no color at all (Tosafos). (White wine is always light-colored or yellowish.) According to this opinion, quality white wine is acceptable even for the mizbeiach.

The halacha is that one should preferably use a red wine unless the white wine is better quality (Rama 472:11; Mishnah Berurah 272:10). At the seder, there is an additional reason to use red wine, because it reminds us of Pharaoh’s slaughter of Bnei Yisroel (Mishnah Berurah 472:38). Therefore, if one chooses to use white wine, some suggest mixing red wine into the white wine to give it a little red color (Piskei Tshuvos 472:10). When mixing the wine, it is preferred to pour the red wine into the cup first and then add the white. If one adds red wine to white wine he will color the white wine, which is prohibited on Shabbos and Yom Tov according to some poskim because of the melacha of tzove’a, dyeing or coloring (see Mishnah Berurah 320:56).

MEVUSHAL (Cooked)

Cooking wine harms it, and cooking grape juice affects its ability to ferment naturally. Indeed, some winemakers never pasteurize the juice from which they produce their wines because heating compromises the taste. For these reasons, halacha views wine that is mevushal as inferior, and this has several ramifications. The prohibition not to use wine touched by a gentile, stam yeinam, does not exist if the wine was mevushal before the gentile handled it (Gemara Avodah Zarah 30a). This is because no self-respecting idolater would consecrate cooked wine to his deity (Rambam, Hilchos Maachalei Asuros 11:9; cf. Rosh, Avodah Zarah 2:12 who explains the halacha somewhat differently).

Similarly, one may not pour cooked wine as a libation for a korban. Some poskim contend that mevushal wine is so inferior that one does not recite hagafen on it but shehakol, and that it is invalid for kiddush and arba kosos (see Tosafos Bava Basra 97a s.v. ileima; Tur Orach Chayim, Chapter 272). Although we recite hagafen on mevushal wine and rule that it is kosher for kiddush and arba kosos (Shulchan Aruch 472:12), one should try to use uncooked wine unless the mevushal wine is superior (Rama 272:8; Mishnah Berurah 472:39).

There is one situation where one must use mevushal wine, and that is when gentiles might handle open bottles of wine. This is why most hechsherim insist that all wine served in restaurants and at catered events be mevushal.

Incidentally, almost all bottlers in North America pasteurize their juice before bottling. Commercial pasteurization of juice products is usually at about 180° Fahrenheit.

BUT I HEARD THAT PASTEURIZATION DOES NOT NECESSARILY EQUAL BISHUL?

The early poskim state that heating wine until it begins to evaporate makes it mevushal (Shach, Yoreh Deah 123:7, quoting Rashba and Ran). How hot is this temperature? Rav Moshe Feinstein ruled that 175° Fahrenheit is definitely hot enough to be considered mevushal (Igros Moshe, Yoreh Deah 2:52; see also 3:31), although some poskim contend that wine must be heated to a much higher temperature (see Darchei Teshuvah, Yoreh Deah 123:15; Minchas Shlomo 1:25). Because of this dispute, some hechsherim rule that only wine and grape juice that is heated until boiling is considered mevushal, whereas others consider all commercially available grape juice as mevushal.

However, some poskim contend that the laws of mevushal wine do not apply to contemporary pasteurized juice since the processing is made in a way that the wine does not taste inferior (Shu”t Minchas Shlomoh 1:25). Thus, one could use wine made from pasteurized juice or pasteurized juice without any concern, but one should not use wine that was cooked after fermentation which definitely tastes inferior. According to this opinion, a gentile touching pasteurized wine or grape juice will make it prohibited.

At this point in my monologue, Yankel interjected a question:

“I am not sure if I understood you correctly. If grape juice is usually pasteurized, then according to Rav Moshe’s psak, it is all mevushal. And, since one should preferably not use mevushal wine, one should not use grape juice for kiddush or arba kosos?”

“That is correct,” I responded. “Actually, there is also another reason why it is preferable to use wine for arba kosos.”

WINE VS. GRAPE JUICE

One may use freshly pressed grape juice for kiddush, even though it contains no alcohol (Gemara Bava Basra 97b). However, one should preferably not use grape juice for the seder as I will explain.

In the time of the Gemara, wine was so strong that people diluted it with three parts water (per one part wine) before using it for kiddush and other mitzvos. The Gemara teaches that someone who drank the wine without dilution fulfills the mitzvah of drinking four cups of wine, but does not fulfill the mitzvah of cheirus, freedom (Pesachim 108b). This is because the complete mitzvah of arba kosos requires drinking wine with a pleasurable amount of alcohol. This undiluted wine is too strong and not pleasurable. We derive from this Gemara that wine is better for the seder than grape juice, because the alcoholic content of the wine provides the element of cheirus.

However, someone who cannot drink wine may fulfill the mitzvah of arba kosos with grape juice.

Yankel interjected another question. “My mother-in-law never drinks wine the rest of the year. If I tell her that she should drink wine, she will do it because of the mitzvah. How much wine must she drink?”

“She can use a small cup that holds exactly a revi’is of wine with very low alcohol content or even mix wine and grape juice in the cup so that one can barely notice the alcohol and she will fulfill this mitzvah,” I replied. “The poskim dispute how much is a revi’is, with different opinions ranging from three ounces to five ounces. This the minimum amount of wine for each of the four cups. She is required to drink only a little more than half the cup, although it is better if she drinks the entire cup. She should drink the entire last cup in order to recite the bracha acharonah.”

RECONSTITUTED GRAPE JUICE

Reconstituting grape juice involves evaporating at least 80% of the water that is naturally part of the juice, and then later adding water back. (Juice is concentrated and then reconstituted because it saves tremendous amounts of shipping and storage costs, and because the concentrate has a longer shelf life.) It is important to note that the concentrate is not drinkable before adding water.

Rav Shlomo Zalman Auerbach has a lengthy tshuvah whether reconstituted grape juice may be used for kiddush and whether its correct bracha is shehakol or hagafen. The basis of his discussion follows:

The correct bracha on all beverages except wine is shehakol. Wine merits a unique bracha because it is special in that it “makes man and Hashem happy” (see Mishnah and Gemara Berachos 35a). Men appreciate the intoxicating properties of wine, and in addition, it is the only liquid that the Torah commands us to pour on the mizbeiach every day. (Water, the only other liquid ever poured on the mizbeiach, is only poured on the mizbeiach during Sukkos.)

Grape juice does not have all of these qualities since it does not contain any alcohol. However, since it can potentially become wine, it merits the special bracha of hagafen and may be used for kiddush.

Rav Shlomo Zalman posed the following question: Do we consider natural grape juice as a mixture of the tasty part of the grape and plain water, or do we make no distinctions and consider grape juice as a mixture of everything inside the grape?

Obviously, everyone will conclude that grape juice is what grows inside the grape. Although natural juice is over ninety percent water, the water that grows inside the grape is considered grape juice, not water. However, water added to concentrate does not metamorphose into juice but remains water. Thus, he rules that the finished product is concentrate mixed with water and not pure grape juice.

“I understand that the water in a cup of reconstituted grape juice should not be counted and therefore you should not use it for kiddush,” Yankel interjected. “But I don’t see why there is a shaylah what bracha to make since you are tasting and drinking natural grape juice?”

“Good question,” I responded. “However, Rav Shlomo Zalman points out that the concentrate may not be considered grape juice since during the processing it becomes undrinkable. Therefore, the juice is no longer a prize beverage that warrants its own unique bracha, nor can it potentially become wine. This is why Rav Shlomo Zalman conjectures that even after the juice is reconstituted, its bracha may be shehakol, not hagafen (Minchas Shlomoh #4). Although some poskim disagree with Rav Shlomo Zalman’s conclusions, it is advisable not to use reconstituted juice for kiddush and arba kosos (Shu”t Minchas Yitzchok 8:14; ViZos HaBeracha pg. 116; Piskei Tshuvos, 272:2).

Yankel had one more question. “I was told that one should not drink a new wine during the seder meal that was not on the table at the beginning of the seder. Is this true, and if so, why?”

“Answering this question requires an introduction,” I responded.

HATOV VEHAMEITIV

When there is one wine on the table and the host serves another variety of wine, Chazal instituted a special bracha called “Hatov vehameitiv.” This bracha demonstrates our appreciation of the increased joy brought about by having varieties of wine (Mishnah Berurah 175:2). (Some authorities explain that the reason for this bracha is the exact opposite. To make sure that the additional wine does not cause too much frivolity, we recite a bracha that reminds us of the destruction of Beitar when the Romans crushed the Bar Kochba rebellion [Kad HaKemach]. Chazal instituted the fourth bracha of bensching, which is also called “Hatov vehameitiv,” when the Jews finally received permission to bury the thousands of people killed. Thus, the bracha on the new wine reminds us of the bracha recited because of that tragedy.)

Someone who brings out a new bottle of wine in the middle of the seder should technically recite the bracha of hatov vehameitiv. However, many poskim contend that reciting an extra bracha on a cup of wine makes it appear that one is adding another cup to the four that Chazal instituted (Maharil, as explained by Mishnah Berurah 175:2). Therefore, they ruled that one should not bring out a new variety of wine during the seder meal.

Yankel prepared to leave. “So which wine is choicest?” I asked him.

“One should drink a red wine that has never been cooked. However, if a white or cooked wine is better, one should use the better wine. Someone who does not like wine may mix grape juice with wine as long as they can still taste the alcohol, but they should not use reconstituted grape juice.”

“May we all have a Yom Tov of freedom and celebration!”

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