RabbiKaganoff.com – Page 54 – The Torah Writings of Rabbi Yirmiyohu Kaganoff, Shlita

How Does a Jew Litigate?

Mendel Greenberg has been unable to resolve a matter with one of his suppliers. He has attempted to discuss the matter with him, but the last time he tried, the phone was abruptly slammed down. To his chagrin, Mendel realizes that he has no choice but to sue the supplier. Not knowing how to proceed, he makes an appointment with his rav to discuss what to do.

PROHIBITION OF USING NON-HALACHIC COURTS

After Mendel finishes explaining his predicament, his rav explains that it is absolutely forbidden for a Jew to submit litigation against a fellow Jew in a secular court, even if both parties agree (Gemara Gittin 88b; Rashi and Ramban, beginning of Parshas Mishpatim). This is known as the prohibition against using arka’os, or non-halachic courts. When a person chooses a civil court for one’s litigation instead of the Torah’s system, one implies that one does not believe that the system set up by Hashem is the best one. According to the Midrash, this is a chillul Hashem (Midrash Tanchuma, Mishpatim #3).

Unfortunately, even frum people sometimes assume that legal rights and responsibilities are governed by secular law. A Torah Jew must realize that every aspect of life is directed by Torah – including how one litigates. The true believer in Hashem understands that the only procedures to be followed are those sanctioned by the Torah.

In addition to the severe prohibition against using arka’os, someone who submits litigation to civil court will probably end up stealing by receiving money to which one is not entitled, according to halacha. The fact that a court ruled in the plaintiff’s favor, or that the defendant chose to settle rather than contest the court case, does not permit taking ill-gained money.

“I am well aware of the problem,” says Mendel to his rav. “I personally know frum people who use the civil courts to resolve their matters.”

“Every generation has its nisyonos, its tests, of its resolve to observe Torah,” his rav sighs. “In our grandparents’ generation, it was Shabbos. During our parents’ generation, there were many difficult issues such as tznius, shatnez and proper standards of kashrus. In our generation, I find that one of the weakest areas of proper mitzvah observance is the usage of civil courts.

“Let me share a very recent incident with you,” the rav continued. “Someone hired a frum lawyer to resolve a legal problem. I discovered that the lawyer had filed a lawsuit in civil court. ‘Which rav has permitted filing a civil lawsuit?’ I asked the plaintiff. It turned out that the plaintiff was totally unaware that there was any halachic issue, and had relied on the halachic know-how of the lawyer! I explained the severity of the prohibition involved, and the matter was transferred to a beis din.

“Look how serious this prohibition is,” said the rav, pulling a sefer off the shelf. “Listen to this Rambam: ‘Whoever has his case judged by non-Jewish laws or courts, even if their laws are the same (as the Torah), is a rasha. It is as if he blasphemed and raised his hand against the Torah of Moshe Rabbeinu’” (Hilchos Sanhedrin 26:7).

GOING TO JEWISH JUDGES

“Are Israelis allowed to use their civil courts that employ Jewish judges?” asked Mendel.

The rav pulled another sefer off his bookshelf and began reading the following passage from a sefer of the Chazon Ish:

“‘There is no halachic difference between going to gentile judges and going to Jewish judges who use non-Torah laws. As a matter of fact, it is far worse to go to Jewish judges who have traded away a Torah system for a worthless, empty system. Even if the city residents have accepted this court’s system and authority, their acquiescence has no validity. To force someone to follow this system has the status of stealing from them and of raising one’s hand against the Torah given to us by Moshe Rabbeinu’ (Chazon Ish, Sanhedrin 15:4). The identical ruling was issued by Rav Tzvi Pesach Frank and Rav Yitzchak Herzog.” (See Shu”t Tzitz Eliezer 12:82.

DINA DI’MALCHUSA DINA

“I have often heard that dina di’malchusa dina (secular civil law) determines halacha in business matters; isn’t it so here?” Mendel inquired.

Realizing that Mendel was not questioning his authority, but simply attempting to clarify this confusing issue, his rav gave him a patient reply.

“What you’ve just quoted is an incorrect understanding of dina di’malchusa dina,” he began. “Dina di’malchusa dina requires obeying rules of the government such as paying taxes and obeying traffic and safety regulations, and prohibits us from smuggling and counterfeiting. But it does not replace the civil laws of the Torah (the laws of Choshen Mishpat) that govern relationships between Jews, nor does it supplant the Jew’s responsibility to bring his litigation before a proper beis din.”

“I must say,” continued the rav sadly, “that I find it peculiar that often the same person who quotes dina di’malchusa dina when it does not apply, happily ignores it where it does apply. Interpreting business halachos conveniently without checking it out with a rav is another example of an unfortunate weakness prevalent in our generation.

“But please let me clarify one point,” the rav continued. “When I say that dina di’malchusa dina does not apply in litigation, this should not be confused with the similar concept of minhag hamakom.

“Certain areas of halacha, such as the contract laws for buying and hiring, are governed by the concept of minhag hamakom – that normative business practice determines what is halachically accepted. When a person agrees to a contract, both parties assume that they will be following what is normally done, unless it is specified otherwise. For this reason, the halacha regarding sales and employee rights is often governed by accepted practice. And since normal practice is influenced by civil law, these areas of halacha are influenced by civil law. This is not because halacha recognizes civil law, but because of the influence civil law has on business practice.

“However,” the rav concluded, “it should be noted that certain areas of halacha, such as laws of inheritance, are not affected by secular law at all” (Shu”t Rashba, quoted by Beis Yosef, Choshen Mishpat end of Chapter 26).

“How should I begin the litigation I came here to discuss?” asked Mendel.

TWO KINDS OF BATEI DIN

“There are two kinds of batei din,” replied his rav. “An established beis din or an ad hoc beis din known as ‘zabla.’ Zabla is the acronym for ‘zeh borer lo echod,’ because each party chooses one of the dayanim (judges) who will judge the case, and then those two dayanim choose a third person to join them and form a beis din.”

Mendel realizes that zabla will probably not benefit him, since it is doubtful that the supplier will willingly submit to arbitration of any type. Therefore, he asks his rav how he proceeds to apply for a beis din to hear his case. The rav refers him to the mazkir, the bailiff or representative, of a nearby beis din. The mazkir issues a summons to the supplier to appear before a beis din.

“What do I do if the supplier comes to beis din and then refuses to obey the decision?” Mendel asked the mazkir.

“Every beis din insists that the litigating parties agree to be bound completely by the decision of the beis din they use,” explained the mazkir. “In addition, beis din proceedings are binding in civil law as arbitration agreements. This means that once the parties sign an agreement submitting their litigation to beis din for arbitration, the civil court will uphold the beis din’s decision. If one party subsequently fails to honor the psak of the beis din, the beis din will authorize the use of secular authorities, if necessary, to enforce its ruling.”

Ultimately, the supplier ignored the summons to appear before the beis din, a serious halachic offence in its own right. Halacha requires a Jew to respond to a summons to appear before a beis din. The fact that it is an unpleasant experience is no excuse for not responding.

In the vast majority of cases, the defendant has the right to request that the case be heard in a different beis din or to request that the matter be decided through zabla. However, he is responsible to convey this intent to the mazkir beis din.

WHAT IF THE DEFENDANT REFUSES TO GO TO BEIS DIN?

What does Mendel do? Unfortunately, Mendel’s situation is neither uncommon nor recent, and apparently occurred even at the time of the Gemara (see Bava Kamma 92b, as explained by Rosh). If this happens, the required procedure is to file the case with a beis din. The beis din summons the defendant to appear. If the defendant fails to appear or indicates that he will not appear, the beis din authorizes the plaintiff to sue in secular court (Choshen Mishpat 26:2). Under these circumstances, the plaintiff has not violated the prohibition of going to civil courts since his suit was authorized by beis din.

The usual practice is to issue a summons to the defendant three times before authorizing the plaintiff to sue in secular court (Beis Yosef and Sma to Choshen Mishpat, Chapter 26, citing Rav Sherira Gaon). However, it should be noted that this is the prerogative of the beis din. If the beis din feels that the defendant will not heed an additional summons, they may authorize the plaintiff to sue in civil court after receiving just one rejection. Sometimes, the beis din’s representative might simply phone the defendant to find out if he will honor beis din’s summons.

It should be noted that even if someone gets authorization to go to secular court, he is still not entitled to receive more in the settlement or ruling than he is entitled to according to halacha. Therefore, he should ask a posek how much of the award he is permitted to keep.

WHAT HAPPENED TO MENDEL GREENBERG?

Unfortunately, the supplier did not respond to the summons of the beis din, so the beis din signed a document authorizing Mendel to take his case to civil court. As noted above, going to civil court under these circumstances is permitted once authorized by beis din. Mendel has not made a chillul Hashem since he has demonstrated his desire to have his case adjudicated according to halacha. Here, it is the supplier who refused to be bound by beis din’s authority and has demonstrated his contempt for beis din, halacha and Hashem’s Torah, thereby creating a chillul Hashem.

Mendel chose an attorney he knew from shul to represent his case. When he met with the attorney, he explained all that he had learned about the prohibition against going to arka’os. The attorney himself was aware of Rashi’s statement that it is a tremendous desecration of Hashem’s presence to use civil courts. However, he had assumed that it only referred to courts of idol worshippers.

Now Mendel felt confident that he could convey some of his newly gained knowledge. “My rav told me that it is forbidden to use any secular court, and that a chillul Hashem is involved every time one goes to a court that does not recognize Torah as its law system.”

The lawyer suddenly realized that he had many shaylos of his own.

MAY A LAWYER FILE A LAWSUIT IN CIVIL COURT ON BEHALF OF A JEWISH CLIENT?

This is unfortunately a very common shaylah. A Jewish lawyer representing a Jewish client sues another Jewish client in civil court. May the lawyer file a lawsuit in secular court? Rav Tzvi Pesach Frank ruled that this is absolutely prohibited and that it is a major chillul Hashem to do so.

However, this situation provides the lawyer with a great opportunity to perform a kiddush Hashem. He can explain the advantages of going to beis din to his not-yet-observant client. Firstly, it is far less expensive and usually far more efficient, since most frum communities have batei din where a din torah can be arranged within days.

Of course, an observant Jew should not have to be told extraneous reasons why it is beneficial to go to beis din. For one, the only salient point should be that this is what Hashem wants one to do. Certainly, the reward for following halacha is infinitely greater than anything gained by violating halacha. However, since the non-observant client may not appreciate these considerations, the lawyer may convince the client in a way the client will understand.

MAY ONE TESTIFY IN SECULAR COURT ABOUT A CASE THAT WAS ALREADY DECIDED IN BEIS DIN?

Yes, it is permitted to do. Furthermore, it is permitted and a mitzvah for the dayanim of the beis din themselves to testify in secular court regarding their adjudication. There is a discussion in poskim whether it is a lack of kovod haTorah for the dayanim to testify as witnesses in a secular court. The conclusion is that it is not considered a lack of kovod haTorah as long as the secular court is honest (Shu”t Chasam Sofer, Choshen Mishpat #3).

MAY A LAWYER DEFEND A CLIENT IN CIVIL COURT, OR DOES THIS REQUIRE AUTHORIZATION FROM BEIS DIN?

If a Jew is sued in secular court, it is a mitzvah to defend one to the best of one’s ability, since the plaintiff violated halacha by suing in civil court. There is no need to get authorization from beis din.

IS IT PERMITTED TO SUE A NON-JEW IN CIVIL COURT?

A non-Jew is not required to submit his litigation to beis din. For this reason, a Jew may sue a non-Jew in secular court. Therefore, a lawyer can represent a Jew in his suit against a non-Jew.

MAY LITIGATION BE SUBMITTED TO A NON-JEWISH ARBITRATION BOARD?

There is a dispute among poskim whether one is permitted to submit a case to a non-Jewish arbitration board without authorization from beis din. It seems that Shach (Choshen Mishpat 22:15) and Aruch HaShulchan (22:8) permit this, if the arbitrator bases his decision on common sense and fairness, rather than on a non-Jewish system of law. The Nesivos HaMishpat prohibits using a non-Jewish arbitrator, even in such a circumstance.

Although suing in arka’os is strictly prohibited unless authorized by beis din, Shach and Aruch HaShulchan contend that there is a halachic difference between arbitration that bases its decisions on common sense and a sense of fairness rather than a system of law. In their opinion, arka’os is prohibited because one is substituting a different legal system and procedure for the Torah’s system. However, common sense arbitration is not viewed by anyone as a legal system, but simply as a practical, fair way of resolving conflicts. The Nesivos HaMishpat disagrees, contending that using any system not set up by the Torah constitutes the violation of using arka’os.

In practice, to circumvent this machlokes haposkim, one should summon the defendant to beis din. If he refuses to accept beis din’s authority, the beis din’s permission allows one to submit the matter to an arbitration board as well as a civil court.

WHAT SHOULD A PLAINTIFF DO IF HE LIVES FAR FROM A BEIS DIN?

The mazkir beis din can telephone the defendant explaining that the case must be adjudicated by a beis din. If the defendant accepts this, then the beis din will attempt to facilitate the creation of an ad hoc beis din, similar to a zabla, formed from the most qualified individuals available locally. Under these circumstances, a shaylah should be asked whether one should submit the case to an arbitration board. If the defendant refuses to accept beis din’s authority, beis din will authorize that the case be brought to civil court.

Every profession requires its special halachic expertise. The mortgage broker must be familiar with the laws of ribbis, the psychologist with the laws of loshon hora and the businessman with the laws of ona’ah.. And all of them must remember the rules of avoiding arka’os and taking their litigation to batei din.

The pasuk states, “VaYehi David oseh mishpat utzedakah lichol amo,” “And David performed justice and kindness for all his people” (Shmuel II 8:15). The Gemara (Sanhedrin 6b) comments that this pasuk says something unusual. Justice and kindness are opposites.. If David performed justice, then seemingly he was not performing kindness.

The Gemara answers that a just decree resolving a din Torah performs both justice and kindness; justice for the plaintiff who receives his award, and kindness for the defendant by protecting him against the violation of holding onto stolen property. Thus, by ruling against the defendant, beis din is performing an act of compassion by protecting him from transgression. Careful attention to the rules regarding batei din will stand a person in good stead by guaranteeing that his life is always surrounded by kindness.

Have I Caused Someone to Stumble? The Laws of Lifnei Iveir

Recently, the main office of Yated Neeman received the following inquiry:

“To the Editor:

“I am an avid reader of Yated and I was wondering if you could forward a query to Rabbi Kaganoff. I especially enjoy his Halacha Talk column and was hoping he could discuss the following issue:

“Our extended family is not observant. Often as major holidays approach, they ‘threaten’ to drive to our home to join us for meals. We know they have no intention of staying over for the entire Yom Tov (although we do extend the invitation). Also, we really do not feel we are doing kiruv since they are coming just to eat and are not interested in anything religious. We advise them that it is not permissible to drive on Shabbos or Yom Tov, but they sometimes show up anyway. They feel that they are taking responsibility for their own actions and they assure us they would be driving anyway, albeit somewhere else.

“Would Rabbi Kaganoff mind discussing the halachic issues in this situation? I would really be interested in seeing how he tackles this problem.” Alan. *(all names have been changed)

Within a few days of receiving Alan’s inquiry, I received a similar shaylah, this one from Shifrah:

2. “My boss asked me to call businesses to offer their employees a chance to go on a healthy cruise complete with Jacuzzi, sauna etc. There was no mention of separate amenities, nor can I imagine that the prospective clientele would want such a thing. In essence, I am being asked to solicit people to purchase a cruise that violates halacha. May I make these phone calls, or is it considered that I am causing people to do something prohibited?”

The following e-mail came the next day from Rachel, an attorney:

3. “A client wants a will or contract drawn up that runs counter to halacha. May I draw up the will or contract the way he wants it?”

In order to answer these common shaylos, we need to understand the rules of lifnei iveir, being an accomplice to someone violating halacha, a prohibition based on the verse, “lifnei iveir lo sitein michshol,” “Do not place a stumbling block before a blind person (Vayikra 19:14).” Chazal interpret this pasuk to mean that one may not give someone bad advice, nor cause him to violate a prohibition.

Actually, causing someone to sin may involve three different Torah prohibitions and one rabbinic prohibition, each one with its own definitions. They are:

I. Inciting – maiseis

This occurs when a person was not even considering doing an aveirah until someone encouraged him. Thus, the instigator incited the performing of the aveirah and is therefore a maiseis.

II. Encouraging — chanufah

One violates this prohibition by complimenting someone for doing a sin, thus implying that sinning is acceptable.

III. Enabling – lifnei iveir

One violates this prohibition if the sinner wanted to do the aveirah, but was unable to do so without assistance. The person who enables the performing of the aveirah violates lifnei iveir.

IV. Even when none of these Torah prohibitions are involved, helping the sinner do the aveirah sometimes violates the rabbinic prohibition of mesaya’a y’dei ovrei aveirah, assisting someone who is sinning.

Our job is to define each of these prohibitions and see whether the activities mentioned above violate any of them. What makes the entire mitzvah and its interpretation more complicated is the contemporary situation in which most Jews are unfortunately not educated in the basic halachos of Judaism. Thus, although they are not observant, they transgress halacha only because they do not perceive the beauty and wonder of Torah. Thus, we must strive our utmost to bring them closer to Torah without compromising any halachic tenets.

I. Inciting Someone to Sin – maiseis

The classic case of maiseis is when the nachash encouraged Chavah to eat the forbidden fruit. Even though the nachash itself did not eat, Hashem punished it for inciting Chavah to sin (Gemara Sanhedrin 29a). Similarly, if Reuven incites Shimon to sin in a way that Shimon had not considered, Reuven is a maiseis. Rav Moshe Feinstein rules that scheduling a shul program for children on Shabbos knowing that their parents will have to drive them to attend violates a Torah prohibition of maiseis, even though the intention is to encourage people to keep mitzvos (Igros Moshe, Orach Chayim 1:99).

Many people, and even some poskim, have difficulty understanding this ruling of Rav Moshe. After all, the parents of these children would be driving on Shabbos anyway, and isn’t it better that these children and their parents be exposed to Yiddishkeit so that they might eventually become frum?

Allow me to explain the rationale behind Rav Moshe’s position:

If a person is an idol-worshipper, may I introduce him to an idol he has never worshipped before? Of course not!

And if I did so, would I be guilty as a maiseis?

“Of course!” Even though he has worshipped idols anyway, I have incited him to this different act of idol worship.

Similarly, even if someone desecrates Shabbos anyway, I may not cause him to violate Shabbos an extra time. Some who causes him to violate Shabbos is guilty of lifnei iveir, and someone who incites him to violate Shabbos in a way that he would not have considered on his own is a maiseis!

Thus even if the parents of these children would drive on Shabbos anyway, since they would not have performed this particular act of Shabbos desecration, arranging this chillul Shabbos is an act of maiseis.

However, some other poskim disagree with Rav Moshe. They contend that if my intention is to bring the person closer to observing mitzvos, we do not consider him a maiseis, but on the contrary fulfill a big mitzvah (see Teshuvos V’Hanhagos 1:358, 483). Others rule that the prohibition of maiseis is restricted to inciting idolatry and related violations. According to this opinion, the nachash was a maiseis because he was inciting Chava to attempt to become like Hashem, which is similar to idolatry (Margaliyos Hayam to Sanhedrin 29a #25).

Shifrah’s shaylah, quoted above, might be dependent to this dispute. “My boss asked me to call businesses to offer their employees a chance to go on a healthy cruise that violates halacha. May I make these phone calls?”

According to Rav Moshe, placing these phone calls presumably violates maiseis since the called is inciting someone to violate halacha that he/she would not have considered before. There may be grounds for lenience in this case, since if Shifrah refuses to make the phone calls, the boss will certainly have someone else call. Shifrah must ask her Rav a shaylah whether she must refuse this task even at the cost of her job or does the situation provide sufficient mitigating circumstances to allow her to keep her job.

II. Encouraging Someone to Sin — chanufah

Complimenting someone, either directly or indirectly, for violating the Torah commits the Torah prohibition of chanufah, sometimes called flattery. One violates this prohibition by approving or implying approval when someone sins, and also by giving honor to a known sinner. (For a full discussion of this prohibition, see Shaarei Teshuvah of Rabbeinu Yonah 3:187-199.) Thus, if someone who sued in civil court without proper rabbinic approval asks Yehudah if this was acceptable, and Yehudah nods or smiles approvingly, Yehudah has violated the prohibition of chanufah. Instead, Yehudah should inform the litigant of his error, teaching him that a huge share in olam haba awaits those who acknowledge that they have sinned and do teshuvah.

III. Enabling Someone to Sin – lifnei iveir

A person violates the prohibition of lifnei iveir if he enables a sinner to do an aveirah that he wanted to commit, but was unable to without assistance. . For example, if a nazir, who is prohibited from drinking wine, wanted to drink some inaccessible wine, the person who hands him the wine violates lifnei iveir, even if he does not incite or encourage the nazir to sin. Merely enabling the nazir to drink wine is considered “placing a stumbling block (the aveirah) before a blind person,” since the nazir is “blinded” to the harm the aveirah brings upon him. Similarly, one may not give someone bread to eat if he will not wash netilas yadayim before eating (Shulchan Aruch Orach Chayim 169:1; Rama, Orach Chayim 163:2), one may not hand food to someone who will eat without reciting a bracha (Shulchan Aruch Orach Chayim 169:2) and a Jew who borrows from or lends to a Jew with interest violates lifnei iveir by causing a Jew to violate this prohibition (Rambam, Hil. Malveh 4:2).

A QUESTION OF INTEREST

The poskim raise the following question: If the person committing the aveirah could not have done so without someone assisting him, but could easily have found a different accomplice, does the facilitator violate lifnei iveir? For example: A Jew who lends to another Jew with interest who would certainly have found another Jew willing to borrow under similar terms. Does the borrower violate lifnei iveir for enabling the lender to charge interest or do we argue that the lender could in any case have violated the prohibition without this borrower’s participation. (The reverse is also true, that the lender causes the borrower to violate.)

Many poskim contend that although the lender would indeed have violated anyway, this is only because he would find someone else who also was willing to violate halacha. But if every borrower observed the halacha correctly, the lender would be unable to violate the prohibition. Therefore, whoever actually borrows the money violates livnei iveir (Mishneh L’Melech 4:2; Chavos Daas, Yoreh Deah 160:1; See also Sdei Chemed; Pischei Teshuvah, Yoreh Deah 160:1). Others disagree, contending that because the sinner can find a willing accomplice, the individual who actually facilitated the prohibition does not violate lifnei iveir (Shu’t Pnei Moshe 2:105; Shu’t Ksav Sofer, Yoreh Deah 83).

One of our original shaylos, asked by Rachel the attorney, was whether she may draw up an interest-bearing loan document between two Jews who are not interested in employing a heter iska which would structure their transaction in a permitted way. Does she violate lifnei iveir by drawing up this document?

It would seem that if there is a non-Jewish attorney who would draw up the document if Rachel refuses then she may draw it up. However, if only Jewish attorneys are available, then whether or not she may draw it up is dependent on the above-quoted dispute between the Mishneh L’Melech and the Pnei Moshe. (Of course, every individual should ask his/her own Rav what to do.)

IV. Assisting – mesaya’a y’dei ovrei aveirah.

As I mentioned above, if the sinner could violate the prohibition without any assistance, someone who helps him does not violate the Torah prohibition of lifnei iveir. This is because the facilitator did not trip him; he tripped himself. Thus, if the wine is within the nazir’s reach, albeit with difficulty, the facilitator passing him the wine does not violate lifnei iveir. However depending on the circumstances, he might still violate the Rabbinic prohibition of mesaya’a, because under certain circumstances, Chazal prohibited helping someone violate the Torah even though he could have sinned anyway. For example, you may not prepare food in the kitchen of a restaurant or hotel that does not observe shmittah, since you are assisting them while they violate shmittah (Mishnah Shvi’is 5:9). This is prohibited even though you are not causing them to violate shmittah.

In conclusion, someone who incites another person to sin when he was not interested in doing so, violates the Torah prohibitions of maiseis and lifnei iveir. If the sinner wanted to violate the prohibition anyway, there is no violation of maiseis, but there is still a violation of lifnei iveir unless the person could have sinned without the facilitator’s assistance. Even when the sinner was motivated on his own to violate the Torah — so that there is no prohibition of maiseis — and he could have sinned without help – so that there is no violation of lifnei iveir — the facilitator may still violate the Rabbinic prohibition of mesaya’a.

The Gemara mentions various cases, some prohibited because of mesaya’a y’dei ovrei aveirah, and others apparently not, and the poskim devote much literature attempting to resolve these seeming inconsistencies. I am aware of several different approaches to resolve these questions. Here are two:

(1) Some contend that the prohibition of mesaya’a does not apply when one facilitates a Jew who does not observe mitzvos to violate the Torah (Shach, Yoreh Deah 151:6).

(2) Others understand that mesaya’a applies only to someone who violates the halacha by mistake, but that it does not apply to someone who sinned intentionally (Dagul Mei’revavah ibid.). (Although these two approaches seem similar, they are not identical. For example, according to the second approach one may not assist a sinner if he is presently unaware that he is violating halacha. According to the first approach, one may assist him. Later in the article I will mentioned another two explanations.)

The rationale behind both of these approaches is that the prohibition of mesaya’a is an extension of lifnei iveir that applies only to someone who is “blind” and violates the law in error. However, it does not apply to someone who ignores the law on a regular basis or to someone who was intentionally violating the law.

Here are another two approaches that define the prohibition of mesaya’a very differently.

(3) Some explain that one violates mesaya’a only when one is an accessory at the time the sinner is doing the aveirah, but not if one assists him before or after he sins. Here is a halachic ruling that clarifies this issue:

Reuven wants to bring a job to a non-Jewish printer, but he is aware that there are Jewish employees who work in this print shop on Shabbos. May he use this printer knowing that Jews might work on the project on Shabbos? Thus, is he an accomplice to their desecrating Shabbos?

Some poskim rule that Reuven may use this printer since he is not involved at the time the workers are desecrating Shabbos. This is opposed to working in a kitchen that does not observe the laws of shmittah since one is working with the kitchen staff at the time they are desecrating shmittah (Shu’t Binyan Tziyon #15).

(4) A fourth reason explains that mesaya’a applies only when someone will definitely be violating the prohibition. This reasoning would also permit supplying work to the print shop since the shop may not do Reuven’s work on Shabbos. For these reasons, , the Binyan Tziyon permits bringing a project to a non-Jewish shop that employs Jewish workers, even if the work might be performed on Shabbos.

We must address one more important issue before we discuss the remaining shaylos that introduced this article. Is halacha concerned whether the facilitator is influencing the sinner towards or away from observing Torah? According to several prominent poskim, one does not violate lifnei iveir is one’s goal is to influence someone to greater Torah commitment. For this reason, Rav Shlomoh Zalman Auerbach (Minchas Shlomoh #35) discusses whether one may serve bread to a non-observant guest who financially supports Torah study and is respectful of those who observe Torah and mitzvos. Rav Shlomoh Zalman rules that if asking him to wash before eating bread may offend him and result in distancing him from mitzvos, one looks at the long-term benefit, not the short term. He contends that in lifnei iveir one evaluates what will benefit the sinner’s observance level on a long term basis, rather than only considering the specific mitzvah at hand. Similarly, Rav Moshe Shternbuch, now Av Beis Din of the Eidah Hachareidis of Yerushalayim, ruled that a son may invite his parents for Shabbos meals even though they will drive on Shabbos if he feels that this will influence them towards greater mitzvah observance (Tshuvos V’Hanhagos 1:358). However, Rav Moshe Feinstein ruled that one does not take long-term calculations into consideration; rather we consider whether one is causing an aveirah in this particular case.

We can now analyze our original shaylos. The first question we raised was:

“Our extended family often drives to our home uninvited to join us for Shabbos or Yom Tov meals and we feel that they are not interested in kiruv.”

Even if we assume that no kiruv will result from this interaction (a debatable point), many poskim permit Alan to host these relatives for Yom Tov meals since he never invited them, and specifically asked them to spend the rest of Shabbos with him to avoid desecrating Shabbos afterwards.

May Alan invite these relatives? According to Rav Moshe’s approach, one may not invite a guest who will certainly violate Shabbos to come; I may only invite them if there is a good chance that he/she will walk, or if I invite him to arrive before Shabbos starts. In the latter case, I must make arrangements that the guest could spend the rest of Shabbos without driving. According to Rav Shternbuch’s ruling, if this influences the guest to be more observant I may invite them notwithstanding that they may drive on Shabbos to arrive.

We see that in this exact same shaylah, one posek considers inviting the non-observant guest to be a violation of halacha, whereas another considers it to be a mitzvah, since one may influence him to observe mitzvos! Thus we see the importance of asking a shaylah and following the guidance provided by one’s Rav. This way one’s actions are always encouraging mitzvos and not, chas v’shalom, the opposite.

What Goes into the Sheimos Bag?

A few weeks ago, the main office of the Yated Neeman received the following communication:

“The Yated has numerous, excellent weekly columns that deal with halacha issues. I want to suggest a topic that I, and probably many others as well, would like to see clarified. The topic is sheimos.

“Among the questions I have on the subject are: What items constitute sheimos? What is the halacha concerning books containing words of Torah written by people who reject Torah? May I discard the booklets the children bring home from school or a newspaper that contains Torah articles into the regular trash? Does it make a difference if the item was produced knowing it would soon be disposed? May wedding invitations contain pesukim?

“Thanking you so much in advance,

“Yaakov Wolff”* (Name has been changed as requested by the correspondent.)

Indeed, in our time there is a huge proliferation of printed divrei Torah. Are we required to place all of these items in sheimos? As always, it is not the purpose of our column to determine the halacha for our readers; each person should refer his/her own shaylos to one’s rav. Our purpose here is to introduce the subject and the issues involved.

As an introduction to Mr. Wolff’s questions, I will analyze the halachic sources, which divide sheimos items into two basic categories:

I. Items that include Hashem’s name

II. Holy writings that do not include Hashem’s name

ITEMS THAT INCLUDE HASHEM’S NAME

In Parshas Re’eih, the Torah commands: Destroy all the places where the gentiles that you are driving out worshipped their gods, whether they were on high mountains or on hills, or beneath any leafy tree. Raze their altars, smash their pillars, burn their idolatrous asheirah trees, and demolish the images of their gods. Obliterate the names (of their deities) from that place. Do not do this to Hashem your G-d!” (Devarim 12:2-4) This last verse teaches that, just as it is a mitzvah min haTorah to destroy idols and everything associated with them, so too it is a Torah violation to destroy anything containing Hashem’s name (Shabbos 120b; Rambam, Hil. Yesodei HaTorah 6:1).

When the Torah states: Obliterate the names (of their deities) from that place. Do not do this to Hashem your G-d, it prohibits erasing or obliterating something containing one of Hashem’s holy names, specifically referring to the seven sheimos she’einam nimchakim, the seven names of Hashem that may never be erased (Shavuos 35a). These names are the names of Hashem that we are careful not to pronounce except when reciting a prayer, but instead modify their pronunciation; for example, we say Elokim, Hashem, or Keil. When an item containing one of these names can no longer be used, it must be treated in a very special way, as we will see shortly.

As an extension of this prohibition, Chazal prohibited destroying other holy writings, including commentaries, halacha, and other Torah works (see Rambam, Hil. Yesodei HaTorah 6:8). The precise details of how to dispose of these items are sometimes disputed.

SHEIMOS VERSUS GENIZAH

In Yiddish, holy items that require halachically-approved disposal are called sheimos, a truncating of the phrase sheimos she’einam nimchakim, names that may never be erased. The customary Hebrew word used in this context, genizah, means the place where these items are placed. Thus, one term describes the basis for the sanctity of these items, whereas the other depicts their treatment. To maintain the connotations and uses of both terms, I will use the word “sheimos” to refer to the items themselves that have sanctity and the word “genizah” to describe how these items are handled when no longer usable.

RULES OF SHEIMOS SHE’EINAM NIMCHAKIM

One may not erase the seven sheimos she’einam nimchakim even to repair a sefer torah. For example, if a sofer errantly wrote one of these names in a place where it does not belong, one may not simply erase the name to render the sefer torah kosher. Instead, some opinions allow one to surgically split the thickness of the parchment on which he wrote the holy name in a way that removes the holy name intact. This is an extremely delicate task since one must remove the complete intact name no matter how deeply its ink has seeped into the parchment. This piece of parchment containing the holy name must now be placed in genizah. In order to write on the parchment where this name was located, the sofer sands it to restore its texture.

WHAT IS GENIZAH?

What is the proper way to perform genizah?

Worn out sifrei torah should be placed in earthenware vessels and then buried (Megillah 26b). Placing them inside these vessels forestalls the decomposition of the sifrei torah for a long time. Indeed it is a tragedy that Hashem’s name becomes obliterated, even in an indirect way, and the mitzvah commands us to delay their decay for as long as possible. They should be buried near a talmid chacham, or at least near someone who studied halacha and other basic Torah.

GENIZAH OF PRINTED SEFORIM

Do printed seforim require the same standards of genizah that the Gemara requires for a sefer torah?

The poskim dispute whether printed seforim also need to be protected in earthenware vessels before they are buried. The Be’er Sheva requires them to be buried inside earthenware vessels, as does the Keneses Yechezkel (Shu”t Be’er Sheva #43, quoted by Magen Avraham 154:9 and Shu”t Shvus Yaakov 3:10; Shu”t Keneses Yechezkel #37, quoted by Rav Shlomoh Eiger in his notes to Yoreh Deah 282:10). The Keneses Yechezkel adds that packing them inside wood boxes is as acceptable as burying the sheimos in earthenware. Both of these authors rule that printed seforim must be packed properly before burial, even those without Hashem’s name.

On the other hand, the Pri Megadim (commenting on this Magen Avraham) notes that the custom is to bury worn-out printed seforim without placing them inside vessels, and to insist on this special treatment only for hand-written nevi’im and kesuvim (used contemporarily predominantly for haftarah and megillos) that are written on parchment. Thus we see that there is a dispute whether printed seforim must be packed in earthenware or other similarly protective ways before burial; the Be’er Sheva and Keneses Yechezkel requiring it, and the Pri Megadim not.

What is the accepted halachic practice?

The Mishnah Berurah (154:22, 24) quotes only the Pri Megadim, accepting that printed seforim, even those bearing Hashem’s name, do not have the full level of sanctity of hand-written seforim; he does not even mention the disputing opinions. My impression is that this is the practice usually followed by those who bury genizah: hand-written Sifrei Torah, mezuzos, tefillin, megillos and naviim are specially packed before burial in earthenware, wood, or glass containers; whereas worn-out, printed seforim are simply placed in bags or cardboard boxes and buried.

At this point, we can address specific aspects of Mr. Wolff’s questions:

“What is the halacha concerning books containing Torah words written by people who reject Torah?”

NONBELIEVERS

Despite the serious transgression of destroying Hashem’s name, names written by a Jew who rejects Torah belief have no sanctity min haTorah (Rambam, Hil. Yesodei HaTorah 6:8). If the texts including these names were written by such a Jew, or if the text contains sacrilegious or heretical ideas or references, one should destroy them (see Shabbos 116a; Gittin 45b).

GENTILE WRITINGS

Torah writings authored by a gentile that contain no heretical beliefs should be placed in genizah (Gittin 45b; Rambam, Hil. Yesodei HaTorah 6:8). Those that contain heresy should be destroyed.

HOLY BOOKS THAT DO NOT INCLUDE HASHEM’S NAME

Destroying Torah writings that do not include Hashem’s name is prohibited mi’derabbanan (see Rambam, Hil. Yesodei HaTorah 6:8, based on Shabbos 115, 116). Thus, Mishnayos, Gemaras, and most parts of commentaries on Tanach, Gemara, Halacha and Aggadah are considered sheimos only mi’derabbanan since it is unusual to find Hashem’s names in them.

Reference notes that are incomprehensible on their own are not considered divrei torah and may be placed in the regular garbage (Shu”t Igros Moshe, Yoreh Deah 2:75).

PRINTED WORKS CONTAINING DIVREI TORAH

Is there any halachic difference between a printed sefer, which has kedusha, and a printed work on a non-holy subject that happens to contain some divrei torah or quotations from Chazal?

THE WRITER’S INTENT

Some halachic authorities maintain that if a printer or writer did not intend to produce seforim or divrei kedusha, then the resultant product has no kedusha (Shu”t Ein Yitzchak 5:7-9; Chazon Ish, Yoreh Deah 164:3 s.v. ve’im; see also Shu”t Igros Moshe, Yoreh Deah 1:172). According to this approach, a book published on a non-Torah subject that includes some divrei torah need not be placed in genizah when it wears out. This lenience applies only to items that do not contain one of the seven names of Hashem (Shu”t Meishiv Davar 2:80).

NEWSPAPERS AND MAGAZINES

If a newspaper or magazine contains divrei torah, does this require it to ultimately be placed in genizah?

Based on much of the above-discussion, the Melameid Liho’il (2:89) rules that non-Hebrew publications containing Hashem’s name may even be respectfully burnt. He contends that since the printer did not realize he was printing anything holy, the magazine has no kedusha. There is therefore no requirement to dispose of these items in genizah. He does insist that they not be treated disdainfully, and in his opinion, burning these publications, so as not to treat them as regular garbage, constitutes treating them with adequate respect.

WHY ONLY NON-HEBREW?

The Melameid Liho’il assumed that someone printing a non-Hebrew work would never have assumed that he was printing something holy. If the same assumption can be made regarding a Hebrew publication, then his line of reasoning would follow there as well. (Other reasons, beyond the scope of this article, are mentioned to distinguish between works written in Hebrew and those written in other languages, see for example, Shu”t Rama #34; Shu”t Chavos Ya’ir #109.)

A FRUM HEBREW NEWSPAPER OR MAGAZINE

Can we make the same assumption concerning a frum Hebrew newspaper? Does the printer think that there is no kedusha in what he is printing? Or, should we assume that since most frum newspapers contain some divrei torah, the printer realizes that he is printing divrei torah; thus, those parts of the newspaper or magazine should be placed in genizah.

The written opinions I have seen on this subject vary. Most contemporary poskim rule that one is not required to put a newspaper containing divrei torah into genizah; it is satisfactory to wrap the paper or simply the divrei torah before disposing of them in the garbage (Rav Elyashiv and Rav Vozner, quoted in Ginzei HaKodesh pgs. 154, 236). This approach accepts that these divrei torah were printed without intent to make them holy. However, they should be wrapped first so that they are not treated with disdain.

A minority opinion contends that one must place the divrei torah sections of these newspapers in genizah (Ginzei HaKodesh pg. 154, quoting Rav Nissim Karelitz). I have noticed that some chareidi newspapers in Israel print a note on the page when there is a dvar torah on the page, calling the reader’s attention to the fact that this page requires genizah. Apparently, these publications follow the stricter of the rulings cited above.

PERMANENCE

Several earlier authorities imply that divrei torah intended to be temporary do not have kedusha (see Shu”t Ayn Yitzchak #5:7; Shu”t Meishiv Davar 2:80). The line of reasoning here is that since the printer does intend to create permanent Torah works, the items do not become holy. This approach explains the common practice of photocopying Torah quotations for one time use without exerting major effort to retrieve the items for genizah. I leave it to the reader to discuss with his rav whether he may follow this approach.

INVITATIONS

At this point, let us address the next question on Mr. Wolff’s list:

“May wedding invitations contain pesukim?”

Two different halachic concerns are involved when one prints a pasuk or statement of Chazal on an invitation. The first issue is that many people will not realize that this invitation may not be disposed in the garbage, a contemptuous finale for holy writings. (Although the printer may not intend to print this for holy purposes, this only permits not placing the invitations in genizah. As I mentioned above, they may not be placed directly in the regular garbage.) Thus, the person ordering the printing of these works is guilty of causing the destruction of holy writings.

A second halachic concern is that one is only permitted to create written Torah works in order to learn Torah, but not as a decoration. (This is a lengthy subject that I discussed in an article published several years ago.) Thus, a decorative, non-educational use of pesukim or maamarei Chazal violates the halacha.

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

Granted that writing a pasuk on an invitation will make the invitation into sheimos, how much of a pasuk requires genizah? In a different context the Gemara rules that even three consecutive words of a pasuk should be treated as holy writings (Gittin 6b).

SOLUTION

Although people are fond of quoting or paraphrasing scriptural blessings or prayers in an invitation, we see that one may not use parts of pesukim or statements of Chazal for this purpose. However, there is a simple solution to this desire: one may paraphrase a pasuk on the invitation in a way that it is no longer considered holy writings. Take, for example, the announcement: Naaleh es Yerushalayim al rosh simchaseinu, “We will place our memories of Yerushalayim above our celebrations.” Although this quote is reminiscent of Tehillim 137:5, it is not an exact quotation, nor does it contain three consecutive Scriptural words. Similarly, one may print on an invitation, Yom zeh asah Hashem nismecha v’nagila bo, “This day was made by Hashem. We shall rejoice and celebrate on it.” Although very similar to the pasuk we recite as part of Hallel, Zeh hayom asah Hashem nagilah v’nismecha bo (Tehillim 118:24) the words of the original pasuk have been transposed so that there are no longer three consecutive words from the original!

Similar concerns to those regarding wedding invitations may apply sukkah decorations bearing verses and statements of Chazal, notwithstanding their proliferation. Some authorities feel that since the decorations are intended to last for more than one year, there is a reason here to be lenient. Those who follow the stricter approach should utilize the same advice given above concerning pesukim on invitations: Do not quote three consecutive words of a pasuk in a straight line. Again, I refer the question to your own rav.

Thousands of pages of Torah rattle off presses and home and business printers every day, spreading Torah to every corner of the globe. By disposing of this material appropriately, we help ensure that this glory of Torah does not lead to its desecration.

When Do We Not Make a Bracha on a Fragrance?

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

Question #1: My neighbor has a wonderfully fragrant garden. Do I recite a bracha whenever I visit her and walk through the garden, and if so, which bracha?

Question #2: On my way to work I pass a spice factory that has a wonderful aroma. Do I recite a bracha every day as I drive by?

Question #3: Someone told me not to recite a bracha on regular perfume today because it is synthetic. Is this true?

Question #4: I just adore the smell of turpentine! Do I make a bracha when I smell it?

In general one should not benefit from a pleasant aroma without first reciting a bracha. Nevertheless, not all fragrances require a bracha before we smell them. Furthermore, when a bracha is not required, it is forbidden to recite one.

Fragrances upon which one may not recite a bracha fall under three general categories:

I. Forbidden fragrances

II. Fragrances whose purpose is not for pleasurable smelling.

III. Fragrances whose source no longer exists. This would include a case where you put the fragrance into a closed bag, but can still smell the residual aroma in the air outside the bag (Biyur Halacha 217:3), or when you enjoy the smell of an empty besamim box.

I. FORBIDDEN FRAGRANCES

One does not recite a bracha on a fragrance that it is forbidden to smell, such as a scent used in idol worship, or sorcery, or the perfume of an ervah (Rambam, Hilchos Berachos 9:7, based on Gemara Berachos 53a). Smelling something used for idol worship is prohibited because one may not have any benefit from idols. Since we are not permitted to smell these fragrances, it is understood why Chazal ruled that one should not make a bracha on them.

One does not recite a bracha before smelling these prohibited fragrances even if a small amount is mixed into a potpourri of other fragrances (Biyur Halacha 217:8; cf. Gra ad loc. who implies that if most of the fragrance is from a different source, one should recite a bracha before smelling it. However this is very strange, because the Torah forbids smelling the entire fragrance whenever the prohibited source is discernable.)

WHAT SHOULD I DO IF I PASS AN IDOL AND SMELL INCENSE?

Although this is unusual in America, there are many places in the world where this is a common shaylah. May I walk down this street if I might smell a forbidden fragrance?

According to halacha, I am permitted to walk down the street provided I try not to appreciate the fragrance. The Gemara discusses a category called Hana’ah haba’ah lo le’adam baal korcho, “benefit that a person receives against his will.” Although a person has control over what he eats, he has more limited control over what he smells or hears. If someone is exposed to a pleasurable fragrance that is forbidden according to halacha, there is no violation involved provided he does not try to enjoy the aroma (Gemara Pesachim 25b).

II. FRAGRANCES WHOSE PURPOSE IS NOT TO PROVIDE THE PLEASURE OF SMELLING

“One does not make a bracha on a fragrance unless it was made for the pleasure of smelling,” (Shulchan Aruch, Orach Chayim 217:2). One only recites a bracha on a fragrance that is avida lireicha, literally, “made for fragrance.” In the words of the Chazon Ish (Orach Chayim 35:1), “Anything that it not specifically meant to smell, is not considered a fragrance.” Thus the definition of the word besamim is something made to provide pleasurable scent and does not include aromas not meant for smelling.

There are several headings of aromatic fragrances that are not for the pleasure of smelling. They include:

A. Deodorizing fragrances

B. Fragrances whose current purpose is not for their aroma.

C. Fragrances whose purpose is to provide aroma to something else.

D. Items that most people do not consider fragrances.

IIA. DEODORIZING FRAGRANCES

One does not recite a bracha before smelling a fragrance whose purpose is to neutralize a bad odor, such as a room deodorizer, deodorant, or oil rubbed on the skin to dispel malodor (Gemara Berachos 53a). Even though these items may be highly aromatic, since their purpose is not for enjoyment but to neutralize an unpleasant odor, we do not recite a bracha.

One does not recite a bracha before smelling a room deodorizer even if he enjoys the aroma and even if he sprayed it in a room without a bad odor or brings it to his nose for a pleasant whiff. Since the deodorizer was made expressly to dispel malodor and not for enjoyment, it is not considered besamim even if the individual enjoys smelling the deodorizer (Shaar Hatziyun 217:16, based on Shulchan Aruch, Orach Chayim 297:2).

USING OILS AS A DEODORIZER

Some people use pleasant-smelling essential oils to combat malodors. Does one make a bracha before smelling these fragrances?

It depends on why one smells them. If they are functioning as deodorants, then one does not recite a bracha, whereas someone who uses the oil with the intent of enjoying its aroma does recite the appropriate bracha before smelling it (Gemara Berachos 53a with Rashi). (See my other articles on this subject to know which bracha one recites.)

WHAT DETERMINES WHETHER A FRAGRANCE IS BESAMIM OR A DEODORIZER?

Some items are obviously deodorants or deodorizers and are not besamim. However, the essential oils we mentioned and other fragrances may sometimes be used to deodorize and sometimes for pleasure. What determines whether this particular fragrance is besamim over which we recite a bracha or not?

The Chazon Ish (Orach Chayim 35:2) explains that the determining factor is why you brought the fragrance to this location. If you brought it for pleasure, then it is besamim and you recite a bracha. If you brought the fragrance to neutralize an odor, then you do not recite a bracha even if you smell it for pleasure.

However, if you removed some of the fragrance permanently to enjoy its aroma, this part becomes besamim and warrants a bracha. The Chazon Ish uses the example of someone who applies fragrant oil to his or her skin. Even if the person originally used the oil to deodorize, if he subsequently sprinkled some onto a handkerchief to enjoy the aroma, he recites a bracha on the sprinkled oil.

IIB. INCIDENTAL TO PURPOSE

We learned above that one does not recite a bracha before smelling a fragrance whose current purpose is not for its aroma. What does this mean?

Imagine yourself outside the production facility of the world’s largest manufacturer of flavors and fragrances. The aroma outside this plant is indescribable — I can tell you because I have been there. Yet the halacha is that one does not recite a bracha on this fragrance. Why not?

The halacha is that someone who enters a spice merchant’s store recites a bracha because the owner wants customers to smell his wares so that they will make a purchase (Gemara Berachos 53a). If these items are in his warehouse where he is not soliciting customers, one does not recite a bracha (Magen Avraham 217:1).

Why do you recite a bracha on the spices in his store but not those that are in his warehouse? Because the fragrances in the store are there to be smelled and enjoyed; the ones in the warehouse are not. Thus, the fragrances in the warehouse are not avida lireicha and are not besamim.

Thus, smelling the most fantastic aroma in the world from the production facility of the world’s largest manufacturer of pleasant flavors and fragrances does not warrant a bracha. These fragrances do not qualify as besamim since they are not there for people to enjoy their aroma.

THE SPICE MERCHANT HIMSELF

Does the spice seller himself recite a bracha upon entering his own shop? He does not enter intending to smell fragrant spices in order to decide what to buy. He enters because it is his livelihood. Can a fragrance be avida lireicha for one person but not for another?

Poskim dispute this question, many ruling that the merchant should recite a bracha since the fragrance has the status of avida lireicha. Others contend that for the merchant the fragrances are merchandise and not avida lireicha and therefore he should not recite a bracha (Mishnah Berurah 217:4; Shaar Hatziyun 217:7).

Other poskim present a different reason why the merchant should not recite a bracha on the fragrance. The Taz (217:1) contends that one recites a bracha over a fragrance only if one demonstrates that he wants to smell it, such as by picking up the fragrance and raising it to his nose. The customer who enters the shop recites a bracha because he walked into the shop intending to smell and purchase fragrances — thus, his entry is itself demonstration that he wants to smell the spices, and therefore he recites a bracha. However, the owner’s entry does not demonstrate intent to smell the product. According to this opinion, someone who makes a delivery to a perfumery would not recite a bracha.

On the other hand, most poskim contend that once a fragrance qualifies as avida lireicha, one recites a bracha over it even if one is not specifically trying to smell it (Pri Megadim MZ 217:1; Shaar Hatziyun 217:4). Thus, the poskim dispute whether the merchant himself recites a bracha. Later in the article we will suggest an approach whereby he can avoid a safek bracha completely.

The same dispute also applies to the neighbors of the perfumery, its workers, and people making deliveries to the shop. According to the Taz’s opinion, only the customers recite a bracha on the magnificent fragrance of the shop since they come to smell and purchase. Also, if you entered the store to enjoy the fragrance, you recite a bracha according to all opinions.

PUTTING INTO YOUR HAND

Let’s assume you are back in the spice merchant’s warehouse or in the flavor factory and you know that you do not make a bracha on the incredible fragrance that is wafting through the air. What happens if you approach some of the spices to take a pleasant whiff or you lift some of the fragrance in order to smell it? Do you recite a bracha?

The poskim dispute what to do in this case. The Mishnah Berurah (217:1) contends that whenever you do something to smell the fragrance, such as you move towards the fragrance or you pick it up or you put some into your hand, you should recite a bracha. Any act makes the fragrance avida lireicha.

However the Chazon Ish disagrees, maintaining that if you will return the fragrance it is not avida lireicha and you do not make a bracha (Chazon Ish, Orach Chayim 35:1). The Chazon Ish agrees that if the manufacturer has samples available because he wants people to smell and buy, then one does recite a bracha.

SPICES IN THE KITCHEN

There is a common practical difference in halacha between the approaches of these two Gedolim regarding spices in the kitchen. Suppose you want to enjoy the smell of the cinnamon or the oregano on your kitchen shelf. According to the Mishnah Berurah, if you remove a container to smell it, then you recite a bracha on the spice even though you intend to return the spice to the shelf after smelling it. However according to the Chazon Ish, you do not recite a bracha on this fragrance unless you do not intend to cook with it later. (See Shmiras Shabbos K’Hilchasah, Vol. 2, Pg. 262). Someone who wants to avoid the dispute would sprinkle a little bit of spice into his hand and make a bracha on that. Since you are not going to use this spice for cooking, it is besamim and one recites a bracha before smelling it.

Some poskim explain that this opinion of the Chazon Ish is the reason for the widespread minhag to set aside special besamim for havdalah on Motzei Shabbos (Shmiras Shabbos K’Hilchasah, Vol. 2 pg. 262). Why do people do this? Couldn’t you just use a fragrant kitchen spice for the bracha?

However according to the Chazon Ish, one does not recite a bracha on a kitchen spice if one intends to cook with it. Only if one removed some of the spice from kitchen use and set it aside for besamim does that spice warrant a bracha.

THE GARDEN

At the beginning of the article I asked, “My neighbor has a wonderfully fragrant garden. Do I recite a bracha whenever I visit her, and if so, which bracha?” We are now prepared to answer this question.

The fragrant garden itself is avida lireicha since the owner or gardener presumably planted it wanting to benefit from the beautiful aroma. Do we therefore recite a bracha upon entering the garden? According to most poskim, one would recite the bracha upon entering the garden even if he is not entering the garden to enjoy the aroma at all, since it is avida lireicha. The bracha will depend on what is growing in the garden, but assuming that there are items growing with different brachos, one should recite Borei Minei Besamim.

However according to the Taz, one recites a bracha only if he wants to smell the fragrance. In order to avoid this shaylah, one should have in mind before entering the garden that one is entering the garden to enjoy the fragrance and recite a bracha immediately before entering the garden, just as one recites a bracha immediately before eating a delicious fruit.

Similarly, someone whose house is permeated with aromatic flowers should recite a bracha before entering the house since the flowers were acquired with the intention of making the house pleasantly fragrant. However, if the flowers are there only for beauty and their owner was not concerned with their fragrance, then one does not recite a bracha before entering the house. According to the Mishnah Berurah we quoted above, one should recite the appropriate bracha (either Borei Atzei Besamim or Borei Isvei Besamim) before smelling an individual flower. According to the Chazon Ish, it would seem that one should not recite a bracha unless he removed a leaf or trimming from the flowers that he wants to smell.

THE FRUIT MARKET AND THE CONFECTIONER

Does one recite a bracha when entering a fragrant fruit market, since smelling the delicious fruit may entice one to make a purchase? The same question applies to a confectionary store – Does one recite a bracha before entering this store since the delicious smell of all the sweets may entice the customer to purchase?

If indeed the owner feels that the fragrance of his wares encourages people to buy them, then one should recite a bracha before entering. This case is similar to an interesting dispute that we find in earlier poskim.

THE PHARMACY

In earlier days, a pharmacy was a store in which the apothecary sold raw herbs for their medicinal value. The poskim ask whether one recites a bracha before entering the apothecary shop just as the Gemara says that one recites a bracha before entering the besamim seller’s store.

Some poskim rule that one should recite a bracha before entering a pharmacy because the permeating fragrance encourages people to purchase herbs. Other poskim disagree for an interesting reason — people do not purchase medicinal herbs because of fragrance, but for medical need (see Biyur Halacha 217:1). Thus, since healthy people do not make purchases even if the herbs smell pleasant, and sick people will buy even if the herbs are not fragrant, no one is deciding to buy because of the fragrance. Therefore, these herbs are not avida lireicha.

The Mishnah Berurah (Biyur Halacha 217:1) compromises between the two positions quoted above. In his opinion, if people use the fragrance to find the location of the store, that is reason enough to make a bracha. However, he points out two other reasons why one should be careful before reciting a bracha.

1. That according to the Taz (mentioned above) one does not recite a bracha unless one intends to smell the fragrance.

2. One should recite a bracha only if the fragrances are open. However, if the herbs are all closed in bags, but the air is fragrant from the previously opened bags, this is considered a rei’ach she’ayn lo ikar, upon which one does not recite a bracha.

Thus upon entering a fragrant fruit store, one should recite Hanosein Rei’ach Tov Ba’peiros and then intend to enjoy the fragrance, since the fruits are always out in the open to encourage people to buy them.

It is uncertain whether the same halacha applies to a florist’s shop. Flowers today are not cultivated for fragrance, and most people purchase flowers because of beauty, not fragrance. However, if there is a florist who feels that customers purchase because of fragrance, one should recite Borei Minei Besamim and enjoy the fragrance.

IIC. Fragrances whose purpose is to provide aroma to something else.

In the time of Chazal, it was common to burn incense in order to give clothing or dishes a pleasant fragrance. The Gemara (Berachos 53a) mentions that one does not recite a bracha when smelling this beautiful aroma because its purpose is not for the fragrance itself.

When showing a house for sale, some people toast cinnamon in the oven or open essential oils and other fragrances around the house to make the house more appealing. Since the purpose of these fragrances is to give the house a pleasant aroma and not to entice people either to smell or to purchase the fragrance, one does not recite a bracha.

IID Items that most people do not consider fragrances.

There are items that some people enjoy smelling, but most people do not consider fragrant. One should not recite a bracha before smelling such an item.

Examples: The poskim dispute whether one recites a bracha on freshly baked bread. Those who contend that one does not recite this bracha is because they feel that this is not a significant fragrance to warrant a bracha (Beis Yosef 216; Rama). Thus, some people enjoy smelling certain plants or herbs whereas other people do not. If most people do not consider a particular smell to be a fragrance, you should not recite a bracha even if you enjoy it.

TURPENTINE

Question #4 above, a shaylah someone recently asked me, was: “I just adore the smell of turpentine! Do I make a bracha when I smell it?”

Dear reader, how would you answer this shaylah?

Perfumeries do not sell turpentine as a fragrance. Hardware stores sell it as a solvent and paint thinner. Many people consider the odor of turpentine pungent and not fragrant. Since most people do not consider turpentine to be a fragrance, one should not recite a bracha before smelling it.

III Ayn lo ikar – A fragrance whose source no longer exists.

In the case mentioned above where one burns incense to impart aroma onto clothing or pots, one does not recite a bracha on the clothing afterwards because the fragrance has no ikar (Rambam, Hilchos Brachos 9:8). For this reason, one does not recite a bracha on a bag that has a pleasant smell because it once held fragrance or when you can still smell the residual aroma that is in the air after a spice has been put into a closed bag

(Biyur Halacha 217:3).

SYNTHETIC FRAGRANCES

Some poskim contend that one does not make a bracha on a synthetic fragrance (Rav Shlomo Zalman Auerbach, quoted in Shmiras Shabbos K’Hilchasah, Vol. 2, Pg. 263 note 32). Apparently, they hold that one can only recite a bracha on a fragrance whose source was originally besamim. However most poskim dispute this ruling, contending that fragrance should not be different from a “synthetic food”- a food made from a non-food substance, such as alcohol or vinegar whose source is petrochemical – which is very common today.

This situation is very common today, since most inexpensive fragrances and perfumes are synthetic. Because of the above dispute, if I have a reason to smell a synthetic fragrance I try to recite a bracha on a different fragrance whose bracha is Borei Minei Besamim, such as cloves or cinnamon, and thereby be motzi the synthetic fragrance. (Neither of these options will work for Sefardim, since they usually recite Hanosein Rei’ach Tov Ba’peiros on cloves and Borei Atzei Besamim on cinnamon.)

As a quick review, we do not recite a bracha on the following categories of fragrances:

Those that we are not permitted to smell.

Deodorizers

If the fragrance is incidental to the item’s main purpose or if it provides aroma to something else.

Items that most people do not consider fragrances.

Where one does not smell the source of the fragrance.

Some poskim hold that we should not recite a bracha on a synthetic fragrance.

EXPRESSIVE FRAGRANCE

In a monumental essay, Rav Hirsch (Breishis 8:21) explains that the expression rei’ach nicho’ach, usually translated as “a pleasant fragrance,” should more accurately be rendered “an expression of compliance.” He demonstrates that the word nicho’ach means “giving satisfaction” and the concept of “rei’ach” is used because fragrance implies receiving a very slight impression of something that is distant. Thus, when a korban is offered as a rei’ach nicho’ach it means that it shows a small expression of our fulfilling Hashem’s will. Similarly, our attempt to observe the halachos of brachos on fragrances correctly demonstrates a small expression on our part to praise Hashem for even His small kindnesses to us.

Do I Have to Tell the Truth?

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

A person must maintain total integrity in all his dealings – after all, we are commanded to act like Hashem in all our deeds, and His seal is truth (Gemara Shabbos 55a). Furthermore, someone who is meticulously honest and truthful will merit receiving the presence of the Shechinah.

Conversely, the Gemara (Sanhedrin 103a) teaches that habitual liars will not merit to receive the Shechinah’s presence. This is derived from the pasuk, “Dover shekarim lo yikon l’neged einai,” “He who speaks lies will not be established in My sight,” (Tehillim 101:7). A person who gains nothing from his lies and simply has no regard for telling the truth, is included in the “kat shakranim” (pack of liars) who will not merit to meet Hashem (Shaarei Teshuvah 3:181; 186). This category also includes people who fail to keep their word (Shaarei Teshuvah 3:183).

Truth is so important that the Gemara teaches, “Hafoch b’neveilasa v’lo seifoch b’milei,” “Turn over a carcass and do not turn over your words,” (Pesachim 113a). This means that it is preferable to do unpleasant, malodorous work rather than talk deceitfully.

Therefore the Torah warns, “Midvar sheker tirchak,” “Keep distant from a false matter,” (Shemos 23:7). Nowhere else does the Torah command that we must “keep distant” from an activity (Sefer HaChinuch #74), which emphasizes how far we must keep from falsehood (Mesilas Yesharim, Chapter 11).

Even taking credit for something that one did not do is considered a falsehood (Shaarei Teshuvah 3:184).

In addition to the halachic requirement of being meticulously honest, there is also a tangible benefit in being known as someone who always tells the truth. As the Gemara points out, “Someone who lies is not believed even when he tells the truth,” (Sanhedrin 89b).

Similarly, regarding chinuch, we are taught, “Do not promise something to a child without giving it to him because this teaches him to lie,” (Gemara Sukkah 46b).

Despite the importance of being straightforward, there are situations where the Torah allows being imprecise to circumvent damage. For example, it is more important to avoid machlokes, embarrassing someone, or hurting his feelings or reputation, than it is to tell the entire truth (Bava Metzia 23b with Rif and Tosafos). When placed in a situation in which full disclosure will cause one of these negative outcomes, avoid fabricating a story but omit the harmful information (see Chofetz Chayim, Hilchos Rechilus 1:8). However, if machlokes may result if one answers truthfully, one must modify the truth, rather than create ill feeling.

WHY MAY I MODIFY THE TRUTH?

Why is it permitted to alter the facts in order to avoid hurting someone’s feelings?

In general, the Torah does not accept the theory that the end justifies the means. Thus, one is generally not permitted to do something halachically wrong in order to accomplish a positive result. However, altering the truth to avoid machlokes or to save someone from hurt is an exception to this rule.

Even in these situations, changing the truth should be a last resort. When the situation can be resolved without resorting to untruth, one must do so. Furthermore, it is preferable to give a truthful answer that omits the harmful information rather than modify the truth (see Chofetz Chayim, Hilchos Rechilus 1:8). However, if there is no choice other than modifying the truth, one is required to do so.

WHEN MAY ONE MODIFY THE TRUTH?

There are five situations when modifying the truth is permitted. They are:

1. SHALOM

One is required to avoid dispute or ill feeling even if it requires distorting the truth. This also includes situations where telling the truth will result in lashon hora. Therefore, if someone is asked, “What did so-and-so say about me?” and the true answer to this question will result in lashon hora or ill feeling, one may not give a complete answer. As mentioned above, it is preferable to answer in a way that is not an outright untruth, such as telling part of the story that has no negative ramifications. If there is no choice, one must say a fabrication rather than telling the truth that includes lashon hora or creates machlokes (Chofetz Chayim, Hilchos Issurei Rechilus 1:8).

It should be noted that when there is no way to avoid modifying the truth for the sake of shalom, it is not only permitted but obligatory (Rif, Bava Metzia 23b).

Here are some examples. Reuven refused to lend Shimon money because he felt that Shimon was a credit risk. (One is not required to lend money if there is valid reason to suspect that it will not be repaid.) Later, Shimon discovered that Reuven loaned money to someone else and asked Reuven why his (Shimon’s) request was turned down. To avoid hurting Shimon’s feelings or creating machlokes, Reuven may tell him that he had no money available to lend at the time. As mentioned above, this approach should be used only as a last resort. It is preferable for Reuven to change the subject or respond to the answer in a different inoffensive way that is not a fabrication.

For the same reason (to avoid hurting a person’s feelings), it is permitted to praise a person’s performance to make him/her feel good, even if the performance was actually mediocre (Kesuvos 17a). Similarly, if someone purchased a new garment, one should tell the purchaser that it looks great even if one thinks the opposite.

What happens if someone asks you how their new dress looks because they value your judgment? If the dress does not look nice, and the situation can be modified (such as, the dress can be tailored or exchanged) then one should give appropriate advice. However, if there is no option to do anything with it, you should remark that it looks nice. After all, there are certainly some people who will think it looks nice on her.

2. MODESTY

It is advisable to act humbly and to answer questions modestly. For example, if a Torah scholar is asked how much he knows of Shas (the entire Talmud), he is permitted to say that he is familiar with a few mesechtos (tractates) even though he actually knows the entire Shas thoroughly (Rashi, Bava Metzia 23b). This statement is permitted even though it implies that he does not know most of Shas and is an untruth according to halacha. It should be noted that modifying the truth in this situation is not required (Rif, Bava Metzia 23b; Sefer Hassidim #1061 states that it is preferable not to say a lie in order to be modest but instead to change the subject).

Likewise, one should be careful not to boast or advertise the chesed that one performs. Someone who is asked about one’s chesed activities should downplay one’s role and understate one’s involvement.

If a posek (halacha authority) is asked whether he is qualified to pasken a certain shaylah, he should answer truthfully but not boastfully. He can say something like, “There are people who ask me shaylos,” or “Rav so-and-so told me that I can pasken” which, if said in a humble tone of voice, is informative and not boastful. In this situation, underplaying his knowledge is counterproductive, since the person who has a shaylah will not feel comfortable that he can ask (Tosafos Bava Metzia 23b s.v. b’mesechta).

Similarly, a person who is heavily involved in chesed projects is permitted to describe one’s full role in order to encourage other people to be involved in chesed.

Someone who observes a halachic stringency (a chumrah) must try to keep this a secret. One is even permitted to give a false reason for one’s behavior rather than explain that he observes a chumrah (see Gemara Brachos 53b).

For example, while attending a simcha where one’s chumrah is not observed, one should try to hide the fact that one is not eating. If someone notices that one is not eating, one may explain that one attended another simcha earlier and ate already. One may say this even if one did not attend a simcha that night and one ate at home, since one’s statement is true (he has attended other simchos previously). This is better than saying that one’s stomach is upset (when it is not) which is an outright untruth. However, if one feels that the only excuse one can use is that one’s stomach is upset, one is permitted to do so.

It should be noted that modifying the truth to act modestly is not required, but merely permitted (Rif to Bava Metzia 23b; Sefer Hassidim #1061).

3. TO SAVE SOMEONE FROM EMBARRASSMENT

If necessary, one may modify the truth to save someone from an embarrassing situation or to protect one’s privacy. Therefore, if someone asks me a question that infringes on my privacy, I may give him an untrue answer if there is no other way to avoid the situation without being offensive (Gemara Bava Metzia 23b). It is usually better to give an untrue answer than to point out that the question was inappropriate, which might embarrass the person asking the question.

Similarly, if I am asked about someone’s personal habits, I may modify my answer, if the truth might reveal private information that the person might not want to divulge (Maharal, Bava Metzia 23b).

One may modify the truth to save oneself from embarrassment even if one caused the uncomfortable situation oneself. For the same reason, if I am asked a question on a Gemara to which I do not know the answer but should, I may reply that I have not learned that Gemara recently even if I have (Rambam, Hilchos Aveidah 4:13).

Although it is permitted to modify the truth to save oneself from embarrassment, it is not preferred behavior (Orach Meisharim). Of course, the best thing is to know the Gemara adequately enough to answer the question (Gemara Kidushin 30a).

It is forbidden to give an untrue answer if it deceives or causes someone financial harm. In financial matters, one must be absolutely truthful. Therefore, it is prohibited to deny having broken someone’s property to avoid paying for it. It is also prohibited to deny breaking it even if one’s goal is to avoid embarrassment, if this might exempt one from paying for the broken item.

It is forbidden to mislead someone. It is therefore prohibited to tell the boss that one is late to work because of a fictitious traffic tie-up.

There is no heter whatsoever to mislead in Beis Din, even if I am convinced that I am in the right and the other side is misrepresenting the facts. (It is permitted to say that the other side is fabricating information.) Receiving money through a din Torah because of a misrepresentation is stolen money (Urim V’Tumim 34:1). Furthermore, a lawyer or to’en rabbani (Rabbinic legal adviser) who suggests that someone withhold information in order to “win the case” violates several serious prohibitions.

4. PROTECTING SOMEONE

One may modify the truth to protect a person from harm or to prevent him from sinning. Again, the halachic principle is that the ends (avoiding sin) justifies the means (altering the facts).

A few examples will clarify what we mean. An unsavory or untrustworthy person asks you where you were a guest last Shabbos because he wants to invite himself to the same host. Since the results may be detrimental, you may tell him that you ate at home. Early poskim describe the following situation: “If someone is asked how he was received as a guest, he may lie so that the host does not become inundated with more guests than he can afford” (Rashi, Bava Metzia 24a). This does not mean that the guest says that he was ill-treated, which would be lashon hora, but that he should imply that he was treated in a nice, but not spectacular way (Maharal).

Similarly, if I am asked by someone who is a bad credit risk where he can borrow money, I may tell him that I don’t know, rather than putting potential lenders in an uncomfortable position.

It is permitted to modify the truth to prevent someone from sinning. In this context, there is a halacha that many people find surprising. You find yourself in a situation where a person thinks that what he doing is permitted, but you know that it is definitely forbidden. You know that the perpetrator will not accept your halachic opinion unless you quote it in the name of a well-known posek. It is permitted (but not required) to quote the psak in the name of a well-known posek (even if he said no such thing) so that the person accepts what you say and does not sin (Gemara Shabbos 115a).

The Gemara records several instances of this ruling. In Rav Yehudah’s house, they used to cut up vegetables on Yom Kippur afternoon so that they should be ready to serve immediately following the fast. (In pre-refrigeration days, vegetables cut up before Yom Kippur could spoil by the end of the fast.) Rav Yehudah noticed that the vegetables were being cut in a way that violated the halacha, but was uncertain whether he would be obeyed. In order to stop the practice, he told them that he had received a letter from Rabbi Yochanan prohibiting it. Several similar stories are told in the Gemara (Eiruvin 51a; Pesachim 27a; Beitzah 20a; see Magen Avraham Chapter 156).

Under the category of protecting people from undesirable situations, the Gemara tells us a very interesting story about the great tzaddik, Iyov. When he heard about a widow who wanted to remarry but was not receiving any shidduch suggestions, Iyov would advertise that she was his relative in order to improve her shidduch prospects (Gemara Bava Basra 16a).

If I am asked questions that will lead in an undesirable direction, it is permitted to modify the truth in order to politely cut off the questioning. The Gemara tells us the following story: Alexander the Great (whom the Gemara calls “Alexander the Macedonian”) once met the Talmudic scholars of the Negev and asked them several philosophic questions. When he asked them whether light was created first or darkness, they answered that this question has no answer. The Gemara points out that although a pasuk (Breishis 1:2-3) clearly states that darkness existed before light, the scholars refrained from answering Alexander to forestall him from discussing questions that might lead to blasphemy (Gemara Tamid 32a).

Therefore, if you know that someone may turn the conversation into a topic that you would not wish to discuss, you should change the subject or say that you do not know the answer to the question.

On the other hand, one may not be untruthful if it deceives or causes someone personal or financial harm. For example, one may not deny having broken someone’s property even if one’s intent is only to avoid embarrassment, if this might exempt one from compensating the owner. Similarly, one may not deceive someone about a shidduch by providing misinformation that might affect the other party.

5. EXAGGERATION

It is permitted to exaggerate even though the literal meaning of one’s words are inaccurate. So long as one’s intent is clear, this is not deceptive nor dishonest, but simply idiomatic. Therefore, it is permitted to say that something has happened “millions of times” since everyone understands that this is an exaggeration. Similarly, it is permitted to call a fellow Jew “my brother,” since all Jews are related and, furthermore, we are all brothers in mitzvos. It is also permitted to call a student “my son,” since the pasuk refers to our students as our children (Shabbos 31a).

With a similar line of reasoning, some contemporary poskim justify the widespread practice of printing wedding invitations with a schedule when everyone knows that the chupah will take place later that the what is printed on the invitation. Since it is known that the time on the invitation is earlier than the simcha will take place, and is intended to give people a sense of when the simcha will actually transpire, this is considered an exaggeration that does not violate the mitzvah of being truthful.

There are a few other instances where one is permitted to say something even though the literal meaning of one’s words is not exactly true. Following a halachic discussion with his disciples, Rabbi Akiva said that the halacha was like one of the students, although it was obvious to all of them that the halacha was otherwise. In the context of the discussion, stating that the halacha was like this student meant that the student’s reasoning was very solid, and the compliment would encourage the students to study with more enthusiasm (Gemara Eiruvin 13a).

An opposite pedagogic use is found in a different Gemara. Bar Kappara, one of Rebbe’s disciples, once said something disrespectful about Rebbe. The next time Bar Kappara came to visit Rebbe, Rebbe told him “Aini makircha mei’olam,” which can translate into English as “I do not know who you are.” Bar Kappara understood that Rebbe did not want to have anything to do with him, as if they had never met. Bar Kappara repented and Rebbe befriended him once again (Moed Katan 16a).

However, how could Rebbe make an untruthful statement? Because Bar Kappara understood Rebbe’s intent, this was not regarded as an untruth. Furthermore, Rebbe’s words, “I do not know who you are” were actually very truthful – Does one human being ever really know another? (Orach Meisharim). Incidentally, we see that even a statement like this, which was fully understood, should preferably be expressed in a way that it has a truthful meaning as well.

CONCLUSION

As we can see, the halachos of telling the truth are far more involved than most people realize. An excellent sefer on the subject is by Rabbi Daniel Travis, entitled “Priceless Integrity.”

Those who tell the truth will receive the presence of the Shechinah. Many special blessings are bestowed on someone who is meticulous about telling only the truth as required by halacha.

Rav Yaakov Kamenetsky was once asked why he lived so long. (We see in Gemara discussions that it is considered an area of halacha to answer this question accurately.) After contemplating the question for a while, Rav Yaakov reluctantly answered, “Probably in the merit of the fact that I have never told a lie”.

The Gemara tells about the community of Kishuta where everyone was very careful to never lie. In reward for this, none of them ever died prematurely (Sanhedrin 97a).

Why is telling the truth a zechus for longevity?

As mentioned earlier, someone who is meticulously honest and truthful will merit to receive the Shechinah’s presence. The pasuk in Mishlei (16:15) teaches, “B’or pnei Melech chayim,” “Those who are in the light of the King will live.” Furthermore, Hashem’s brachos rest on those who imitate His ways, and His essence is truth (Sefer HaChinuch #74). Therefore, those who live with meticulous honesty are rewarded to live long productive lives (Orach Meisharim).

May we all merit this reward!

Pizza, Pretzels and Pastry

Shaylah 1. Yehuda is famished and spots a pizza shop with a reliable hechsher. Entering the shop, he sees no place to wash before eating, but the friendly counterman assures him, “No problem, our pizza is mezonos!” Is the counterman’s psak correct?

Shaylah 2. While driving inter-city, Baila snacks on some packaged cookies. Before realizing it, she has single-handedly eaten the entire box! Must she bensch or does she recite al hamichyah?

Shaylah 3. It is hard for Dovid to wash at work, so instead of taking sandwiches, he eats crackers with his meal. Can he thereby avoid washing netilas yadayim?

Shaylah 4. When Shifra invited her new Sefardi neighbor for a Shabbos meal, they told her that they do not make hamotzi on challah that tastes sweet. When Shifra offered them matzoh instead, she was told that they make mezonos on it! Why is there such a difference between our practices?

To answer each of these shaylos, we need to study the halachic subject known as “pas haba’ah bikisnin,” a term we will translate later. As a working definition, we could say that this includes baked goods usually eaten as a snack rather than as a meal. Although we will discuss the halachic details of pas haba’ah bikisnin, in general these items are mezonos and al hamichyah when eaten as a snack, and require washing, hamotzi, and the full bensching when eaten as a meal.

HOW CAN SOMETHING SOMETIMES BE HAMOTZI AND SOMETIMES MEZONOS? DOES IT HAVE AN IDENTITY CRISIS?

In a way, yes. Sometimes these items fulfill the role of bread and sometimes they do not. But before we explain the role of pas haba’ah bikisnin, we must first explain why bread is unique.

As we know, Chazal established a special bracha just for bread, hamotzi lechem min ha’aretz, and it is the only food that requires full bensching. The Torah views bread as mankind’s staple food and as such it has brachos of its own.

WHAT IS BREAD?

My dictionary defines bread as something made from flour and water (or another liquid) and baked. This definition is highly inadequate, since according to this definition, croissants, cake, cookies, pretzels, pastry, tarts, pies, teiglach, kichel and many other items are all “bread,” yet even Marie Antoinette did not serve them as substitutes for bread on a regular basis.

Thus, we need a better definition for bread, or at least for bread that always requires netilas yadayim, hamotzi and bensching. The Beis Yosef (Orach Chayim 168) explains that these halachos apply to bread prepared the way it is typically used for sustenance, rather than as a snack. Baked goods that are typically eaten not as a staple but as a snack are placed in a different halachic category.

With this introduction, we can now discuss our subject. The Gemara (Berachos 42a) tells us that if one eats as much pas haba’ah bikisnin as most people consider a meal, one must treat it as bread. Under such circumstances, one must wash netilas yadayim, make hamotzi and bensch. The rationale is that by eating pas haba’ah bikisnin for sustenance, we are treating it like bread. Thus, usually pas haba’ah bikisnin is eaten as a snack, and when eaten this way its bracha is mezonos and al hamichyah (Rosh).

WHAT CONSTITUTES PAS HABA’AH BIKISNIN?

There are three basic interpretations of pas haba’ah bikisnin:

1. Bread made from spiced or sweetened dough (Rashi, Berachos 41b; Rambam, Hilchos Berachos 3:9). Most pastry and cake fit into this category.

2. Bread made with pockets that are filled with sweets before it is baked (Tur). This is similar to kokosh and rugelach, where regular bread dough is rolled between layers of chocolate or cinnamon before it is baked.

3. Hard bread like a cracker, biscuit, kichel or pretzel (Rav Hai Gaon).

The “bread” of all three above instances is usually not eaten as a staple, but as a snack. According to many later authorities we rule like all three opinions above: therefore, any baked item that is sweetened, spiced or has too hard a texture to be eaten as regular bread, is considered pas haba’ah bikisnin (see Shulchan Aruch, Orach Chayim 168:7; see also Maamar Mordechai and Biyur Halacha to 168:8). All of these items will be mezonos and al hamichyah if eaten as a snack, and will be hamotzi and require full bensching if eaten as a full meal.

Matzoh is baked similar to a cracker, yet is usually eaten as a substitute for bread rather than as a snack. Since it is usually eaten in order for one to be satiated rather than as a snack, Ashkenazim treat matzoh as regular bread. On the other hand, they are not eaten that regularly the rest of the year and are also not too different from other crackers. For these reasons, Sefardim treat them as pas haba’ah bikisnin the rest of the year, and only treat them as bread on Pesach when they function as our regular bread, whereas Ashkenazim contend that they are a staple and are therefore hamotzi. (It should be noted that on Pesach Sefardim also recite hamotzi over matzoh, since this is the regular bread of the Yom Tov, see Machazik Bracha 158:5). Thus, we have explained Shifra’s questions (that we mentioned above) why Sefardic and Ashkenazic practice are so different.

We should note that boiled or fried items never have the law of pas haba’ah bikisnin, but are always mezonos even if eaten as a full meal. Thus, most authorities rule that pasta, kneidlich, donuts and chremzlich (the latter two are deep fried) are mezonos and al hamichyah and do not require netilas yadayim, no matter how much you eat and regardless how many calories one gains. (It should be noted that there is an opinion that disagrees, see Shulchan Aruch 168:13).

A LITTLE SWEET

What about an item that is just a bit sweet, such as many Ashkenazi Shabbos challos?

The poskim dispute how sweet something must be to be considered pas haba’ah bikisnin. The Shulchan Aruch, followed by the Sefardim, rules that even if the dough is only a little sweet, one should treat it as pas haba’ah bikisnin and it is mezonos as long as the sweetness is noticeable, whereas the Rama, who is followed by Ashkenazim, rules that it has to be very sweet or very spicy to be pas haba’ah bikisnin.

WHEN IS PAS HABA’AH BIKISNIN CONSIDERED A STAPLE?

I mentioned before that one must wash netilas yadayim before eating pas haba’ah bikisnin, and recite hamotzi and bensch on it when it is eaten as a staple rather than as a snack. What defines the difference between a staple and a snack?

According to many poskim, if what one ate is enough to be considered a large meal then it is treated like bread. Other poskim contend that even if one ate an amount the size of four eggs, one is already required to wash netilas yadayim and make hamotzi. (For our purposes, we will say that four kibeitzim is approximately 8.4 ounces.)

Some contend that one makes hamotzi even for the equivalent of three kibeitzim, or about 6.3 ounces. Thus, someone who eats four kibeitzim or more of pastry outside a meal creates a shaylah as to what bracha to recite before and after eating, and whether he must wash netilas yadayim. One should avoid this shaylah by eating less than four kibeitzim unless one eats it as part of a meal (Mishnah Berurah 168:24), and some contend less than the equivalent of three kibeitzim (Birkei Yosef 168:4).

DOES THIS AMOUNT INCLUDE THE OTHER ITEMS ONE IS EATING, OR JUST THE “PAS” PART OF THE MEAL?

If someone ate an entire meal of meat and vegetables without bread but with pas haba’ah bikisnin, must he wash netilas yadayim, and does he recite hamotzi and bensch? The Magen Avraham (168:13) rules that he must wash netilas yadayim, make hamotzi and bensch since he ate pas haba’ah bikisnin together with the meal. Thus, he is satisfied from eating a meal containing pas haba’ah bikisnin, which requires him to treat it as bread. As we will see, Ashkenazim usually follow this psak (Mishnah Berurah 168:24). Thus, substituting crackers instead of bread for supper and eating as many crackers as is typical with a meal will not exempt someone from washing netilas yadayim and he will still recite hamotzi and bensching.

Birkei Yosef (168:6) disagrees, contending that we calculate only how much pas haba’ah bikisnin he is eating. Thus, one is exempt from netilas yadayim as long as one ate less than four kibeitzim of pas haba’ah bikisnin. If someone eats less than three kibeitzim, one recites mezonos on the crackers, ha’adamah on the vegetables, and shehakol on the meat, and afterwards recites al hamichyah and borei nefashos since he did not eat four kibeitzim of pas haba’ah bikisnin. One should avoid eating between three kibeitzim and four outside a meal, but if one did eat this much, he would make an al hamichyah afterwards (VeZos HaBeracha pg. 37). This is the approach usually followed by Sefardim.

We can now explain how Shifra can accommodate the needs of her Sefardic guests. There are a total of three different disputes all related to the halachos of pas haba’ah bikisnin.

1. Do we consider sweet challah to be bread or pas haba’ah bikisnin?

2. Do we consider matzoh to be regular bread or pas haba’ah bikisnin?

3. If someone eats a full meal containing less than three kibeitzim of pas haba’ah bikisnin does he recite hamotzi and bensch or not?

In all three of these shaylos, Ashkenazim follow the first alternative and Sefardim the second. Therefore, whereas an Ashkenazi makes hamotzi on a sweet challah or on matzoh, a Sefardi will not make hamotzi on it unless he intends to eat four kibeitzim. Thus, an Ashkenazi inviting a Sefardi should ideally provide challah that has no noticeable sugar to make his guest comfortable. A Sefardi eating at an Ashkenazi’s house where there is only sweet challah should eat four kibeitzim of the challah in the course of the meal.

TRAVELING NOSHER

We can also now paskin Baila’s shaylah – our traveler who ate an entire bag of cookies while driving. If she ate so many cookies that she is full from them, she must bensch, even though she did not wash netilas yadayim before imbibing her cookies, since she ate enough to be considered a filling, if not particularly balanced, meal.

THE KIDDUSH

At a large kiddush or a smorgasbord, many courses are served that certainly suffice for a full meal. In addition, crackers and cake are usually also served, both of which qualify as pas haba’ah bikisnin. Thus, an Ashkenazi who eats enough for a full meal should wash netilas yadayim and make hamotzi on the crackers if he intends to eat the amount of crackers that one would usually eat with this meal.

According to many poskim, a Sefardi merely needs to keep track that he eats less than three kibeitzim of pas haba’ah bikisnin to avoid a shaylah.

How does an Ashkenazi participate in the kiddush without eating a full seudah and yet without creating a shaylah what bracha to make?

The two best options are to eat the cake and crackers either before or after he eats the rest of the Kiddush foods. If he eats them first, the optimal way to avoid the shaylah is by reciting an al hamichyah and then eating the other items at the kiddush (VeZos HaBeracha pg. 35). This demonstrates that the pas haba’ah bikisnin and the rest of what he is eating are not one big meal.

An interesting phenomenon results from this discussion. It is not uncommon for someone to attend a kiddush and eat a considerable amount of cake, crackers and other food without washing netilas yadayim. This is incorrect because they have eaten a full seudah that requires washing and bensching. Then, they come home fairly full and, wanting to save room for the rest of the Shabbos meal, they eat only a small piece of challah, less than they need to fulfill the mitzvah of seudas Shabbos, or even to require them to bensch. They should make sure to eat a kibeitzah of challah within a few minutes in order to make sure that they fulfill the mitzvah of seudah.

What if someone decides in the middle of a snack that he is going to eat enough to make a meal? If he will still be eating enough to be considered a meal, he should wash, and make hamotzi on what he is yet to eat. On the other hand, if what he intends to eat is not enough for hamotzi by itself, but only in combination with what he ate already, then he should not make a new bracha but complete eating what he has left without washing (Magen Avraham 168:14). When he finishes eating, he bensches – creating the rather unusual situation of reciting mezonos before eating and bensching afterwards.

“MEZONOS ROLLS”

Bakeries that produce so-called “mezonos rolls” knead them with enough juice or milk to consider them pas haba’ah bikisnin according to some authorities. These rolls should taste fairly sweet, and if they do not, are hamotzi for an Ashkenazi even if one takes only a nibble from them.

However, the bracha is mezonos only when one eats a small amount. When eating a full meal together with mezonos rolls, one must wash netilas yadayim, recite hamotzi, and bensch afterwards. Thus, the “psak” of the pizzeria’s counterman (quoted above) that the pizza is mezonos was certainly not accurate if the partaker is an Ashkenazi eating a full meal. Furthermore, it is not the preferred method if he eats three kibeitzim or more of pizza, and certainly not if he ate four.

There is another reason to question his psak, as we will discuss.

PIZZA, BUREKAS AND MEAT PIES

The Shulchan Aruch (168:17) rules that the bracha on an item called “pashtida,” a baked item filled with meat, fish or cheese, is hamotzi. This sounds exactly like a case that should have the halachic status of our second type of pas haba’ah bikisnin mentioned above, where one filled a dough, yet the Shulchan Aruch rules that it is considered bread! Why is pashtida different?

The poskim present several answers to this question.

(A) Pashtida is indeed a form of pas haba’ah bikisnin. The Shulchan Aruch is discussing a case in which he ate a full meal and that is why the bracha is hamotzi (Taz 168:20).

(B) There is a difference between dough filled with sweet things and one filled with satisfying things like cheese, fish or meat. The latter case, which is the case of pashtida, is always hamotzi since it is meant to satisfy and not as a sweet snack (Emek Bracha, quoted by Taz 168:20; Graz 168:10).

(C) Pashtida is regular bread dough and therefore its bracha is hamotzi. If it was made with a oily dough, such as one makes burekas, then indeed it would be considered pas haba’ah bikisnin (Birkei Yosef 168:7; see a similar approach in Aruch HaShulchan 168:50).

At first glance, pizza and pashtida seem comparable and both should be hamotzi. However according to the first approach above, this is true only if one ate a lot of pashtida and pizza, otherwise it is still comparable to pas haba’ah bikisnin. According to the second approach above, both pashtida and pizza are hamotzi even if one eats only a small amount. Thus, there is an additional reason why pizza might be hamotzi even if one ate only a small amount.

Adding milk or juice to the flour will only make a difference according to the last approach. According to this opinion, pizza produced with regular bread dough is hamotzi, whereas adding milk or juice to the dough might make it into pas haba’ah bikisnin. Even this is by no means certain, since the pizza itself does not taste different by virtue of the milk or juice added to its dough.

Thus, according to many poskim, pizza is always hamotzi, whereas according to some poskim it is pas haba’ah bikisnin and therefore sometimes mezonos as I explained above. As in all other shaylos, one should ask one’s individual Rav what to do.

According to the Gemara (Bava Kamma 30a), someone who desires to become a chassid (exemplary in his behavior) should toil in understanding the halachos of brachos. By investing energy into understanding the details of how we praise Hashem, we realize the importance of each aspect of that praise and how we must recognize that everything we have is a gift from Hashem. Furthermore, when reciting the proper bracha, one is acquiring the item from Hashem in the proper way. Pas haba’ah bikisnin functions in two different ways, sometimes as our main sustenance and most of the time as a pleasant snack. Reciting the correct bracha focuses on our understanding the appropriate praise for Hashem at the correct moment.

Hatzalah and Radios

In 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.

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

Recently 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.

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

clip_image002 In 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.)

Preparing Food on Yom Tov

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.