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

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

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

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

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

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

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

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

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

2. Those that create kedusha.

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

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

1. CLEANLINESS IS NEXT TO G-DLINESS

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

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

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

MAYIM ACHARONIM

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

2. KEDUSHA

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

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

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

3. RUACH RA

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

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

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

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

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

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

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

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

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

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

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

AFTER CONTACT WITH A MEIS (A CORPSE)

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

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

WASHING UPON ARISING

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

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

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

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

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

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

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

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

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

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

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

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

1. Prior to eating bread.

2. When washing our hands in the morning upon arising

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

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

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

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

HOW DO WE PASKIN?

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

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

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

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

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

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

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

We can now address our original questions:

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

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

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

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

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

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

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

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

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

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

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

CHOCOLATE’S HISTORY

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

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

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

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

THE 19th CENTURY AND CHOCOLATE

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

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

HOW DOES COCOA GROW?

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

HOW IS CHOCOLATE MADE?

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

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

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

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

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

SO WHAT BRACHA DO WE MAKE ON CHOCOLATE?

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

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

HOW DO WE PASKIN?

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

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

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

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

HOW DOES THIS DISCUSSION AFFECT CHOCOLATE?

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

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

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

WHAT BRACHA DOES ONE RECITE ON CINNAMON SUGAR?

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

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

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

WHAT BRACHA DO WE RECITE ON SUGAR?

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

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

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

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

BEATING A BEET

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

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

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

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

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

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

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

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

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

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

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

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Planning in Advance – Advice for the Chesed Doer

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

Question #1: The Automobile Delivery

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

Question #2: The Money Transporters

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

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

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

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

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

THE BASICS:

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

The Torah presents us with three basic categories of shomrim:

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

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

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

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

Question #1: The Automobile Delivery

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

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

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

Question #2: The Money Transporters

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

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

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

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

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

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

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

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

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

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

THE WONDERFUL N’SHEI LADIES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Do Clothes Make the Kohen?

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

VESTMENTS OF THE KOHEN

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

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

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

ARGAMAN

What is argaman?

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

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

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

IS ARGAMAN A COLOR OR A SOURCE?

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

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

TOLA’AS SHANI

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

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

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

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

A WORM BASED DYE

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

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

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

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

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

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

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

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

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

TECHEILES

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

ATTEMPTS TO IDENTIFY THE TECHEILES

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

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

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

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

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

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

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

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What I Borrow, I Must Surely Return

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

SHE’EILAH VS. HALVA’AH

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

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

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

OTHER DIFFERENCES BETWEEN SHE’EILAH AND HALVA’AH

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

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

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

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

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

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

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

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

RESPONSIBILITIES OF A BORROWER

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

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

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

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

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

CAN I LIMIT MY RESPONSIBILITY?

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

Can we arrange to absolve the borrower from this responsibility?

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

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

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

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

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

DOES THIS ARRANGEMENT NEED TO BE IN WRITING?

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

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

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

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

WHEN IS A BORROWER NOT RESPONSIBLE FOR DAMAGE?

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

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

BE’ALAV IMO

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

This rule sounds very strange. What is its rationale?

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

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

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

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

MEISAH MACHMAS MELACHA

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

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

A LOANED CAT

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

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

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

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

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

A FEW UNFAMILIAR HALACHOS ABOUT BORROWING

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

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

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

RETURNING THE BORROWED ITEM

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

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

BORROWING COLLATERAL

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

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

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

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

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

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Doubly Blessed

   

It was a big simcha, the birth of twin boys. Avi Habanim, the new Daddy, wondered whether he and Reb Mendel the mohel should recite the brachos once or twice. He also wanted to know whether the bracha after the bris, asher kidash yedid mibeten, is recited separately for each baby or not. Since holding the baby while this bracha is recited is a big honor, this would amount to two extra kibbudim for Avi to distribute – quite an asset in his sensitive family!

Response:

When celebrating the Habanim sons’ bris, the older son was brought to shul first; the mohel recited the bracha of al hamilah prior to performing the older boy’s bris. Avi then recited the bracha lehachniso bivriso shel Avraham Avinu, to bring him into the Covenant of Avraham our forefather. After the bris was completed, Uncle Max was honored with reciting the bracha asher kidash yedid mibeten prior to naming the baby Peretz after Uncle Max’s late father. After Max’s booming baritone rendition was complete, the mohel recited the mishebeirach wishing Peretz a speedy recovery and then began Aleinu, the customary closing prayer to the bris ceremony.

Now the Second Bris

After Aleinu and kaddish were completed, Reb Mendel, Avi and Uncle Herman (I will soon explain why he, and not Uncle Max) took a brief walk outside the shul, and then Avi’s younger son arrived just in time for his bris. Reb Mendel declared kvatter, the standard announcement politely asking people to end their conversations because the bris is beginning. Mendel recited the bracha al hamilah a second time and Avi then recited the bracha lehachniso again. After the bris was completed, Uncle Herman was honored with reciting the bracha asher kidash yedid mibeten prior to naming the baby Zerach.

The Dvar Torah

At the banquet celebrating the brisin, Avi began his comments by thanking Hashem not only for the birth of two healthy boys, but also for the opportunity to have had time to analyze a complex halachic topic that he had never previously researched. He then devoted his “Bris Torah” to sharing his research on the subject at hand. He began by noting that most early authorities contend that one should not recite the brachos twice, but recite one al hamilah and one lehachniso bivriso for both brisin (this is the commonly used plural). When following this approach, one should be careful not to talk about anything not germane to the bris prior to performing the second bris (see Beis Yosef, Yoreh Deah 265; Gra”z 213:7).

Lehachnisam bivriso

Indeed, even the text of the bracha recited by the father changes to the plural: lehachnisam bivriso shel Avraham Avinu, to bring them into the Covenant (Beis Yosef; Rama, Yoreh Deah 265:5). The Rama even amends the prayer that includes naming the child to plural by saying kayem es hayeladim.

Among those authorities who follow this approach, we find a dispute concerning when Dad recites his bracha lehachnisam; although some imply that he should recite it immediately after the mohel recites his bracha on the first bris (Yam shel Shelomoh, Chullin 6:9), most contend that he should not recite it until after the mohel performs the second bris (Shu”t HaRashba 1:382). This dispute concerns whether the optimal time to recite this bracha (on every bris) is prior to the performing of the bris, assuming that it is a bracha on the performing of the mitzvah, or afterwards, considering it a bracha of praise (see Tosafos, Pesachim 7a s.v. Beliva’eir). This is a complex discussion on its own that we will need to leave for now; perhaps it is a topic for a future bris. In order to accommodate both approaches, the father usually recites lehachniso bivriso immediately after the mohel begins removing the foreskin but prior to his peeling back the membrane underneath that is halachically called the or haperiyah.

Asher Kidash

There is an additional dispute whether to recite the bracha asher kidash yedid mibeten (recited after the bris and before the baby is named) twice or only once. Rabbeinu Yeruchem implies that one should recite it after each bris, whereas the Beis Yosef disagrees, contending that it should be recited only once — after the second bris. I would like to note that a much earlier authority than the Beis Yosef, the Tashbeitz (2:42), already ruled exactly as the Beis Yosef did — that it should be recited only once, and after the second bris, so that it refers back to both brisin.

Avi noted that some might be concerned about the following curious problem. Since we usually name the child immediately after reciting the bracha asher kidash yedid mibeten, and one is now reciting only one bracha for both boys, how does anyone know which child was given which name? (Avi then noted tongue-in-cheek that in his particular instance this probably would not be such a concern, since people could always refer to Chumash and see that Peretz is the older twin.)

Actually, an early halachic source alludes to a response to this question. The Tashbeitz notes that after reciting the bracha asher kidash yedid mibeten, the custom was to pour two different cups of wine and name each baby while holding a different cup, although one recites only one bracha of hagafen for both cups since there is no interruption between them. He notes that there is no real reason to have two cups for this purpose other than to pacify people. One cup of wine for the bracha certainly suffices. Presumably, each cup of wine was brought near the child who was now being named so that people would know which child would bear which name, although it is also clear from the Tashbeitz that there is no necessity to do this.

Avi continued: According to the Rama’s recommendation that one recites only one naming prayer for both boys, obviously one is using only one cup of wine. It also seems that one concludes this prayer by saying viyakaru shemam biYisrael Peretz ben Avraham veZerach ben Avraham. Since one recites only one prayer that then names both boys, presumably the naming follows the order in which they were circumcised.

Double Blessings

Avi then noted a more serious issue: If most poskim contend that one should not recite the brachos twice for the two brisin, why do we ignore this majority opinion! As you can imagine, after researching the shaylah, I asked my rav what to do, and followed his advice. However, before explaining his reasoning, I would like to share with you more of my research.

Truthfully, several different authorities, both early and late, recommend different reasons why one should recite separate brachos for each bris. The earliest dissenting opinion is that of the Baal HaItur, an early rishon, who rules that each bris always requires its own bracha. Why should this be so? Does the Baal HaItur contend that whenever one fulfills a mitzvah twice that each act requires its own bracha? This would mean that when installing several mezuzos one would recite a bracha on each mezuzah, and that a shocheit slaughtering many birds or animals should recite a new bracha before each shechitah. Although there is a recognized very early authority who indeed advocates this position (Rabbeinu Shmuel ben Chofni, quoted by Mordechai, Chullin #658), the other authorities, Baal HaItur included, accept that one recites only one bracha before performing the same mitzvah several times (Tashbeitz 2:42). So why is this case different?

Baal HaItur himself explains that bris milah is different from the other mitzvos mentioned because one may not perform two brisin simultaneously. Presumably, he means that because of the principle of ain osim mitzvos chavilos chavilos, one may not “bundle” together two mitzvos and perform them together because this implies that one finds performing mitzvos a burden that one wants to be rid of. The logic is that since I cannot perform the second bris until after I perform the first, the first bris is in effect an interruption between the bracha and the second bris (Shu”t Maharam Shick, Yoreh Deah #250).

Most early authorities dispute with the Baal HaItur’s logic. Although they presumably agree that one may not perform both brisin simultaneously because of safety concerns and because of the principle of ain osim mitzvos chavilos chavilos, they feel that this does not create a sufficient reason to require a new bracha on the second bris. Remember that the mohel knows that he will be performing a second bris when he recites the bracha on the first child.

Although most early authorities rule differently, some seem somewhat unconvinced that one is forbidden from reciting separate brachos on each bris. For example, someone sent the Rashba a letter inquiring whether it is correct to recite only one bracha when performing two brisin. The Rashba responded that he had never been in attendance when two brisin occurred together and consequently was unaware of an accepted practice. Logically, he feels that one should recite only one bracha, just as a shocheit should recite only one bracha prior to performing multiple shechitos, although it is clear from the Rashba’s discussion that he would certainly defer to a minhag differing from his ruling (Shu”t HaRashba 1:382).

Later Authorities

Avi continued his discussion by mentioning that the Tur cites the opinion of the Baal HaItur, but then quotes his father, the Rosh, who disputed the Baal HaItur’s conclusions. The Rosh compares this case to having two newly married couples in attendance at one sheva brachos, and whether one should recite two sets of brachos, one for each couple, or one series of brachos for both. He concludes that one should recite one set of brachos for both couples, and rules that when performing brisin on twins that one should recite only one series of brachos for both. Clearly, there is concern that one is reciting unnecessary brachos, brachos she’ainam tzricha, which is a violation of halacha. The Rosh then notes that this is true even if there are two different mohalim involved – and even if the two babies are from different families — one mohel should recite the bracha before performing the first bris with the other mohel present and include the second mohel in his bracha. The second mohel should have in mind to be included in this first one’s bracha. He then also rules that the same is true for the bracha recited after the bris, asher kidash yedid mibeten – concluding that this bracha should also be recited only once for both children, and even if the second child is not present when the first bris is performed since one knows that one will be performing both brisin (Shu”t HaRosh 26:4). Of course, this presents an interesting question, since this bracha is recited after the bris, and one may have already performed the first bris before the second baby arrived. The authorities conclude that even so, one should delay reciting the bracha asher kidash yedid mibeten until the second bris is performed, and then recite it after the second bris with intent for the first bris as well.

To sum up, there is a dispute between the Baal HaItur and the Rosh whether one must recite separate brachos on these two brisin, or whether one is required to recite one bracha on both brisin.

Other reasons

Other, later, authorities present completely different reasons why one should not recite the brachos on two brisin together. The Beis Shmuel (Even HaEzer 62:3) quotes the Perisha as stating that one should not make two brisin together because of ayin hora, just as one should not perform two wedding ceremonies together. According to the Perisha, the concern is not about the brachos, but about the ceremony itself, and that therefore one should complete one bris ceremony before beginning the next one. However, most other authorities do not share this concern (see Taz, Yoreh Deah 265:11 for one approach why).

We should note that the Perisha’s approach results in a different procedure than the Baal HaItur would advise. According to the Perisha, one should not bring the second baby to the location of the bris until after the first bris is complete, whereas according to the Baal HaItur, one may bring both babies at the beginning and conduct the two brisin step-by-step one after the other.

Avi then mentioned a different approach why we should not bring the two babies together. If we remember the Baal HaItur’s position, he contended that simultaneously performing the bris act for both babies violates ein osin mitzvos chavilos chavilos, bundling together mitzvos. However, the Baal HaItur was not concerned that bringing the babies together violates ein osin mitzvos chavilos chavilos. However, there are authorities who feel that bringing two babies together with the intent of performing their brisin consecutively involves a problem of ein osin mitzvos chavilos chavilos (see Magen Avraham 147:11). Thus, we have two authorities who advise against bringing the two babies together to perform their brisin together . We are now going to present a third reason not to do this.

Interrupting the Brachos

Most authorities rule that if someone interrupted after reciting the bracha for the first bris, he must recite a new bracha for the second bris. They contend that it is prohibited to interrupt because this now causes the recital of a new bracha, which is a bracha she’ainah tzricha, an unnecessary bracha. For this reason, the Maharshal reached an interesting conclusion: Departing from the Rosh’s conclusions, he contended that when two different families are making a bris, one should have them each recite its own brachos. He voices two different reasons for his conclusion:

1. There is likelihood that they will interrupt, which requires a new bracha, but fail to recite the bracha.

2. When dealing with two families, one needs to be concerned that they will get into a fight over who recites the brachos.

As a result, the Maharshal recommends making certain that the two brisin have an interruption between them to guarantee that they require two separate brachos. This alleviates the possibility of a machlokes and also guarantees that the proper brachos will indeed be recited (Yam shel Shelomoh, Chullin 6:9).

The Shach’s Conclusion

The Shach (Yoreh Deah 265:15) takes the Maharshal’s concerns even further, being concerned that even in the case of twins, there will be interruptions between the two brisin, and that one should therefore separate between them. In taking this position, he is disputing the conclusions of most Rishonim, and those of the Shulchan Aruch, Rama, and Taz, although one could argue that he was not disagreeing as much as reflecting changing patterns of human behavior. It may be that in earlier generations, people exhibited better self-control and remained quiet between the two brisin, whereas in his generation they did not.

Differing Customs

“If I have not yet put you to sleep,” the erudite father continued, “I will return to the original dispute I mentioned above between the Baal HaItur and the Rosh whether one must recite separate brachos on these two brisin, or whether one is required to recite one bracha on both brisin. Among the later authorities, there is much discussion whether the custom follows the Baal HaItur or the Rosh. The Bach records that in his day this was dependent on local custom, some places following the Baal HaItur’s approach of reciting separate brachos, and others following the Rosh. He mentions that the custom in Cracow followed the Rosh. The Bach concludes that the preferred practice in a place without an established custom is to bring one baby and perform his bris with its brachos, and then when finished bring the second baby and recite separate all the brachos again.

What Is the Sefardic Custom?

“The Tashbeitz, who was the Chief Rabbi in Algiers, a Sefardic community, reports that he attended many brisin of twins and never saw two brachos recited. This is also the conclusion of the Shulchan Aruch, usually the source for all Sefardic custom and practice. Nevertheless, some authorities quote an old established practice in Egypt, a Sefardic community, of performing the first bris with all its brachos, then reciting pesukim and similar things to create an interruption, following which they performed the second bris with all the brachos again (Shu”t Darchei Noam, Yoreh Deah #27, quoted by Pischei Teshuvah 265:10).

“A similar practice is noted in Nineteenth Century Hungary (Shu”t Maharam Shick, Yoreh Deah #250). Thus, it appears that in different places throughout Jewish history there were different established practices. However, Rav Elyashiv takes much umbrage at this practice, claiming that since most authorities quoted rule that one should recite only one bracha, they were also aware of minhagim, and that the places where the minhag was otherwise are the exception, not the rule (Introduction to Otzar HaBris).

“With this information, I asked my rav a shaylah, and he told me that he has attended many brisin of twins, and that the practice is always to perform one bris, make a slight interruption, and then begin the second. He told me that some people provide refreshments between the two brisin, both to accomplish more of an interruption and to have a “bris seudah” for the first twin.

In Conclusion

“Prior to thanking all those who have helped us, I want to share with everyone the idea that we should recognize the paramount importance of being careful with our brachos. Here we see how much ink was used to clarify whether one should recite one or two brachos. Certainly, it behooves us to be careful about our recital of our brachos.”

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The Dry Cleaner and the Gown

The female voice on the other end of the line sounded very familiar. Her voice was full of anger and disappointment. It took me a few minutes to discern what she was trying to communicate.

Once I identified the voice, I realized that it was that of a woman I knew well who is usually very rational. I also began to understand why she was so upset. Mrs. Stein had been expecting to wear a specific, elegant dress for a family simcha and had brought it to the dry cleaner to get it ready. While she was there, she pointed out some stubborn spots on the delicate fabric.

“The dry cleaner managed to remove the stubborn stains,” Mrs. Stein told me, “but my gown’s color washed out in the process! The gown is now absolutely unwearable!  I want the cleaner to pay for the damage in full!”

“I try not to judge a business dispute without hearing the other person’s side of the story,” I told her.

“That’s fine,” she responded. “I’ll ask the cleaner to call you up to explain his side of the story.”

“Are you willing to accept my ruling in this situation?” I asked her.

“Certainly!” she replied.

While awaiting the cleaner’s call, I reviewed the appropriate halachos. If someone hires a workman or artisan to process or repair an item and the workman damages it in the process, he is obligated to pay for its full value and he does not receive payment for his work (Shulchan Aruch, Choshen Mishpat 306:2; 3). As an example of this halacha, the Mishnah discusses the case of someone hired to dye cloth who left the cloth too long in the dye vat and damaged the cloth. The dyer must pay for the value of the cloth he ruined (Mishnah Bava Kamma 100b).

OTHER EXAMPLES

If you hired a builder to demolish a property, and specified that you want to reuse the stones in the subsequent reconstruction, if the builder destroyed building stones in the process, he must repay the value of the stones (Rama, Choshen Mishpat 306:2).

If you hire a carpenter to repair a cabinet, and the carpenter breaks it, he must pay for the damage (Rambam, Hilchos Sechirus 10:4; Shulchan Aruch, Choshen Mishpat 306:2).

Therefore if the cleaner damaged the gown, he is indeed responsible to compensate Mrs. Stein for its full value. This is assuming that the cleaner has no notice posted in his shop that he is not responsible for garments that he damages. According to halacha, if the repairman notified his clients in advance that he does not assume responsibility for damage, he absolves himself of responsibility.

THE CLEANER VERSION

The dry cleaner’s phone call interrupted my research. His version of the events was somewhat different from Mrs. Stein’s.

“Mrs. Stein pointed out the stains she wanted removed,” he told me. “In retrospect, I regret that I did not specify to her that the solvents used to remove the stains could change the gown’s color. I do not remember whether the garment was wearable with the stains or not, but I know that people do not usually leave stains on their nice garments.”

“Was the garment ruined?” I asked the cleaner. “Not at all,” he answered, “I am willing to show it to any expert on women’s clothes. We saw the stains and assessed that the best way to remove them was to clean the entire garment evenly with a specific solvent. This is a standard procedure in this type of situation. When you dry clean this way, if the color is affected, the entire garment changes to a consistent new color. I would love to show you the garment to see the masterpiece we created!”

The dry cleaner’s interpretation of events had us dealing with a very different shaylah! He contended that he used his best professional judgment in removing the stain, and the result was an altered, but perfectly satisfactory and useful garment. According to this understanding, he is entitled to full compensation for his efforts since he did what Mrs. Stein hired him to do and there was no damage to the gown, according to him, but rather, an improvement!

I now found myself in a predicament. I knew this dry cleaner well, and as far as I know, he was a very reputable person. Although he could have been covering up for his mistake, I had no reason to suspect him. On the other hand, Mrs. Stein was also a person I respected; a tremendous baalas chesed – the classic “pillar of the community.” Should I suspect that one of them is not telling the truth?

The fact that I heard two very different versions of the events from the two parties did not mean that either one of them was, G-d forbid, lying or dishonest. Each of them saw the events that transpired his or her own way. This is human nature; we tend to see and color events through our own eyes, regardless of the fact that someone else’s interpretation may vary considerably from ours.

This is the reason why it is very important for every person to have a good friend who gently challenges our assumptions. It is difficult, and maybe even impossible, for us to be objective about ourselves. A good friend can help us regain our objectivity when we become emotionally wrapped up in ourselves. In this case, if Mrs. Stein had asked a good friend for an honest evaluation, perhaps the friend could have helped her calm down. Similarly, the dry cleaner may have benefited by having someone point out to him that his interpretation of the events and facts may have been somewhat flawed.

Although this helped me understand the human side of the dry cleaning interaction that took place, it did not help me establish the facts. The question still remained – did the cleaner damage the gown or not?

There was indeed one other possibility, that both sides were right. The dry cleaner did what he thought was best, which was to clean the gown even though its color might fade slightly. However to Mrs. Stein, this result was unacceptable. It is possible that had she been told that her gown might fade she would have rejected this method of dealing with the problem.

If so, a third set of halachos applies – where the artisan did perfectly good work, but it was not what he was hired to do and not what you want. Perhaps our case is comparable to the case in the Mishnah (Bava Kamma 100b) of someone who hired a worker to dye cloth red and he dyed it black.

In that case, the resultant product is worth more than it was when he started, but the owner did not want black cloth, just as Mrs. Stein did not want a faded gown.

Does the worker receive compensation in this case? Is he liable for all damages?

The above mentioned Mishnah cites a dispute about someone who hired a worker to dye cloth red and he dyed it black. Rabbi Meir rules that the worker pays the hirer for his cloth and keeps it, regardless of whether the finished product is worth more or less than the original cloth. Rabbi Yehudah disagrees, contending that this arrangement benefits the negligent worker too much. Let us assume that the finished black cloth is worth far more than the original un-dyed cloth was worth. According to Rabbi Meir, the dyer would benefit from all this profit. Rabbi Yehudah contends that this is unfair – the worker should not benefit from his negligence. Instead, Rabbi Yehudah contends that any benefits go to the owner, and this is the final halacha. (The actual formula whereby we determine how much, if anything, the worker gets paid is somewhat halachically complicated, see Rambam and Raavad, Hilchos Sechirus 10:4; Shulchan Aruch, Choshen Mishpat 303:6.)

Thus, we now have three possible interpretations of what happened.

1. The dry cleaner ruined the garment and should pay damages (Mrs. Stein’s version).

2. The cleaner did the best possible job possible under the circumstances and made an unusable gown perfectly usable. Therefore, Mrs. Stein should pay him in full (the dry cleaner’s version).

3. That the cleaner exceeded what Mrs. Stein authorized him to do, in which case he would be entitled only to whatever increase in value there is. According to Mrs. Stein, there is none, the gown is not worth more than it was in its stained but un-faded phase.

But I am a rabbi and not a prophet. What was I to do? How could I possibly determine what happened?

Furthermore, there was a more important issue at stake. Whenever I am involved in these types of litigation, I am not satisfied to simply determine the halacha, but I want the two parties to leave b’shalom. To me, this is the most important result – that there should be no lasting ill feeling afterwards.

I thought of a course of action that would accomplish this purpose. First, I asked my wife if she would be willing to look at Mrs. Stein’s gown to see whether she considered the garment un-wearable. Of course I realized that although I value my wife’s opinion, she was not going to make the final halachic decision. However, I was looking to see what she thought and consequently which direction I might take in resolving this shaylah.

In truth, this was the most difficult part of the shaylah. How was I to determine whether the gown was now ruined goods or not? For one woman a garment may be un-wearable and to another it could be perfectly fine. The halacha in such a dispute places the burden of proof on the person who wants to collect the money.

I also asked my wife the following question, after first explaining to her that there was a halachic reason why I needed the information (and therefore no loshon hora was involved). I asked her, “Is Mrs. Stein the type of woman who would be bothered by things that others would not notice?” My wife answered that Mrs. Stein is a very discerning dresser. Thus, I realized that it might be that even if the dry cleaner did what most people would consider the correct course of action, Mrs. Stein would not be happy with the results. On the other hand, it might be that the dry cleaner assumed that the garment was fine, but most people would consider it damaged.

Then I called Mrs. Stein to see if she would mind showing the damage to my wife. My wife felt that although the gown was definitely faded, most women would have worn the garment as is, although a discerning dresser like Mrs. Stein might find the new color unacceptable.

I called the dry cleaner and asked him whether he would be willing to bend over backwards to placate a customer.

“Of course,” he responded, “I never gain anything from an angry customer. Do you know how many people might hear a story like this?”

I assured him that I would try my utmost to be sure that Mrs. Stein obeyed the rules of loshon hora. She is a very fine woman and meticulously observant of halacha.

Mrs. Stein agreed to come to my office to discuss the matter. First I engaged her in some small talk, and then moved the conversation over to the matter at hand. I knew Mrs. Stein to be a woman who was cautious of loshon hora. I just hoped that she did not forget to be careful while she had been so agitated about her damaged gown.

Indeed, she told me that she had told only one person, other than me, about the ruined gown. She had deliberately decided to tell a friend who does not know where she takes her dry cleaning so that there would be no loshon hora problem. I was extremely impressed about her care in observing halacha under this highly stressful circumstance.

Baruch Hashem, there had been no loshon hora said about this matter. Now to make shalom…

I explained to her that I had spoken to the dry cleaner, and that he regretted having not asked her before he used the particular cleaning solution. I also told her that he had used it evenly on the entire garment so that if it would discolor the garment it would leave it in a pretty shade. I then added that I felt the dry cleaner was not guilty from a halachic point of view, but that he was eager to make some restitution anyway because he did not want her to be angry with him.

Mrs. Stein stopped and thought about it. “You know, he has always been so accommodating. I was just surprised and disappointed by him. I suppose not everyone is as fussy as I am. I would be very satisfied if he would make sure to hang up a note to himself in his shop to make sure that he asks every customer before he does something like this again!!”

I had not expected that making shalom would be so easy. I guess that sometimes when you try to do a mitzvah, Hashem makes it easier! And my wife tells me that Mrs. Stein wore a different outfit to the simcha, which was absolutely stunning.

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Anyone for a Giraffe Burger?

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For that matter, what about a venison (deer meat) roast!

Reb Yehudah, a respected Israeli talmid chacham, calls me with the following question: His grandparents have retired and moved to Israel. Now they have invited the entire family over for a Chanukas HaBayis where Zeide is proudly planning to serve barbecued “buffalo steaks” that he brought from America. Reb Yehudah cannot figure out how his grandfather can serve buffalo, or more accurately, bison meat, and Zeide, a frum man all his life, cannot figure out what the problem is — after all, he specially purchased meat with the finest hechsher. I was called upon to mediate.

Before discussing the halachic issues regarding giraffe burgers and buffalo steaks, we will need some background information:

SOME BASIC ANIMAL FACTS

The Torah writes: “Hashem spoke to Moshe and to Aharon saying to them.’Speak to the children of Israel saying, these are the beasts from which you may eat. From the animals that are upon the ground: Whatever has a split hoof that is separated completely and ruminates (chews its cud) among the animals: Those you may eat'” (Vayikra 11:1-3). Thus the Torah defines any land animal with a totally split hoof that chews its cud as kosher. These two signs, or simanim, indicating that their proud owner is kosher, are possessed by sheep, goats, the many varieties of deer and antelope, as well as the entire bovine family, including Western domesticated cattle, Indian zebu cattle, Asian  water buffalo, African cape buffalo, European bison (also called the wisent), American bison (colloquially and inaccurately referred to in North America as buffalo), and Himalayan yak. On the other hand, although a camel chews its cud and has a split hoof, since its hoof is only partially split and not fully separated it is not kosher (Vayikra 11:4). Although I have read articles claiming otherwise, visual inspection of giraffe feet shows that they have fully split hooves.

ANIMALS VERSUS BIRDS

There is a major halachic difference between land animals and birds in determining whether it is a kosher species. Unlike kosher animals, which are identified by the above two simanim, birds are determined to be kosher if they are omitted from the Torah’s list of 24 non-Kosher birds. Since so many thousands of bird species exist, it is obvious that most are kosher. The question is how does one identify the non-kosher varieties?

SIMANIM VERSUS MESORAH

The Gemara (Chullin 61b) specifies four indicating features (simanim); any bird species that contains all four features is kosher. However, many Rishonim contend that we do not rely on our understanding of these simanim and only eat fowl for which we have an oral tradition, a mesorah, that they are kosher (Rashi, Chullin 62b s.v. Chazyuha). The Shulchan Aruch (Yoreh Deah 82:2) rules that one may rely on simanim, while the Rama (82:3) cites the custom not to eat any species of bird without a mesorah.

In addition to our basic background about identifying kosher species of land animals and of birds, we need to distinguish between two categories of kosher animal.

BEHEIMAH VERSUS CHAYAH

Kosher land animals are divided into two categories, beheimah and chayah. Although beheimah (pl., beheimos) is often translated as domesticated species and chayah (pl., chayos) as wild species, these definitions are halachically inaccurate, as we will see.

There are three halachic differences between a beheimah and a chayah.

CHEILEV — FORBIDDEN FAT

1. The Torah forbade consuming certain fats called cheilev, most of which protect the stomachs and kidneys (Chullin 93a). Eating cheilev is a very serious halachic prohibition, similar in severity to eating on Yom Kippur (Mishnah Kereisus 2a)!

The prohibition of cheilev applies to all species of beheimah, but does not apply to chayos (Mishnah Chullin 89b). Thus, someone eating the fat protecting the kidney of a properly slaughtered kosher sheep or calf has violated a prohibition similar to eating on Yom Kippur for consuming cheilev, whereas the greatest tzadik may eat the cheilev of a deer, which is a chayah. Thus one may enjoy a sumptuous venison roast without concern that he is eating any forbidden fat!

KISUY HADAM — COVERING THE BLOOD

2. Another mitzvah that is affected by whether a species is a chayah or a beheimah is the mitzvah of kisuy hadam, covering the blood immediately after shechitah. This mitzvah applies to chayah species (and to fowl), but not to beheimos (Mishnah Chullin 83b). Prior to covering this blood, a bracha is recited, as we do when fulfilling most mitzvos.

Thus, if a species is a chayah, one is required to cover the blood spilled during shechitah, and one may eat its cheilev fat. If it is a beheimah, there is no requirement to cover the blood, but eating its cheilev is strictly forbidden. So, after performing shechitah on our deer, one recites a bracha and then covers the blood with dirt or sawdust.

KOY — AN ANIMAL WITHOUT A SENSE OF IDENTITY

The Mishnah (Bikkurim 2:8- 11) discusses a species called koy (sometimes pronounced kvee), whose status is unclear. Although it is certainly a kosher species, we do not know whether it is a beheimah or a chayah. Due to this uncertainty, it has the stringencies of both categories: its fat is forbidden and one must cover its shechitah blood, but without a bracha. We omit the bracha because we are uncertain whether the Torah required covering its blood. If there is indeed no mitzvah, reciting a bracha before covering its blood would be a bracha livatalah, a bracha recited in vain. As a result, we cover the blood, which may be a mitzvah, but do not recite a bracha, since perhaps it is not.

KORBANOS

3. A third mitzvah affected by whether a species is a chayah or a beheimah is korbanos. One may not offer chayos on the mizbeiach in the Beis HaMikdash; only beheimos are kosher for this purpose (Zevachim 34a; Rambam, Hilchos Issurei Mizbeiach 5:6). Thus, although deer are kosher, we may not use them as korbanos.

We have established that one can have kosher venison roast and need not be concerned about its cheilev and that, as a self-respecting chayah, it is not acceptable as a korban. Serving venison on Pesach will be a welcome change of pace and a conversation piece, although one may not eat roast venison at the Seder since the custom is not to eat any roast meat then (Shulchan Aruch Orach Chayim 476:2).

Since there are several halachic differences between beheimah and chayah, we need to define which species are beheimah and which are chayah. After all, no one wants to eat kidney fat of a beheimah thinking that it was a chayah!

WHAT IS A CHAYAH?

The Written Torah did not indicate the defining characteristics distinguishing beheimos from chayos, leaving these rules to the Torah sheba’al peh, the Oral Torah. The Gemara (Chullin 59b) mentions several characteristics, mostly dependent on the animal’s horns: A branched horn defines its species as chayah, whereas non-branched horns may indicate either a chayah or a beheimah depending on whether they grow in layers, are grooved, and whether their tips are curved or straight (Rashi ad loc.; cf. Rabbeinu Chananel). Therefore, any species possessing branched horns or antlers like those found on most deer is a chayah, whereas those with straight horns may be either chayah or beheimah depending on the other criteria. Since all antelope (a general category that includes several dozen species) have un-branched horns, one would need to examine the horns of each species to determine whether it is a beheimah or a chayah. (Technically speaking, the difference between deer and antelope is that deer have antlers that shed and re-grow annually, whereas antelope have permanent un-branched horns.) (There is one halachic opinion [Shu”t Beis Yaakov #41, quoted by Pischei Teshuvah, Yoreh Deah 80:1] who contends that a chayah without horns is not kosher at all, but this approach is rejected by other halachic authorities [Pischei Teshuvah].)

Note that whether a species is categorized as a beheimah or as a chayah has no bearing on whether it is domesticated or not. Reindeer, although domesticated, are clearly a chayah since they have branched antlers, whereas there are non-domesticated species that are almost certainly beheimah according to halacha.

BUFFALO

The Shulchan Aruch (Yoreh Deah 28:4) rules that one does not perform kisuy hadam for a buffalo; this determines it to be definitely a beheimah. (He is presumably referring to the Asian water buffalo, which was domesticated in Southern Europe hundreds of years before the Shulchan Aruch. He is certainly not referring to the American bison.) If there was any uncertainty regarding its status as a beheimah, the Shulchan Aruch would require kisuy hadam without a bracha – after all we would not ignore this mitzvah, particularly since it is easy to perform. However, the Rama (ad loc.) rules that the status of the buffalo is uncertain and contends that one should cover its blood but without a bracha. According to both opinions, the cheilev is forbidden — according to the Shulchan Aruch, definitely, as the cheilev of a beheimah, and according to the Rama, because of doubt.

A SECOND INTRODUCTION

According to everything that we have so far explained, the North American bison, which ruminates and has clearly split hooves, is clearly a kosher species. Referring back to our opening question: What made Reb Yehudah, our Israeli talmid chacham, think that bison is non-kosher?

The controversy that erupted in Reb Yehudah’s family originated in how to interpret the words of the major halacha authority, the Shach. Commenting on Shulchan Aruch’s definition of the differences between a beheimah and a chayah, the Shach (Yoreh Deah 80:1) writes “I did not elaborate… since today we only use what we have received with a mesorah.” He then concludes with a reference to the laws of kosher birds. The Shach’s comparison of the laws of animals to that of birds implies that accepted practice is to eat only land animal species that have a mesorah that they were eaten, and not to rely on the simanim that they are kosher, even when these simanim are obvious! This seems to run counter to the Gemara’s ruling that simanim are adequate to determine their kashrus.

The Pri Megadim, the major commentary on the Shach, discusses this difficulty and concludes that the Shach meant something else: since the defining distinctions between chayah and beheimah are sometimes unclear, we do not eat the cheilev of any species unless we have a mesorah that it is indeed a chayah. In practical terms, this means that the only land animals whose cheilev we permit are deer, since they are the only chayah species for which we have a definite mesorah. Therefore, according to the Pri Megadim, if someone moves to an area where he encounters a new species that has branched antlers like a deer, has split hooves and chews its cud, he may eat the meat of this animal (after properly shechting it) but he may not eat the cheilev even though it is certainly a chayah.

ANOTHER INTERPRETATION OF THE SHACH

Not all halachic authorities interpret the Shach as the Pri Megadim does. The Chazon Ish (Yoreh Deah 11:4, 5) explains the Shach literally and also understands the rulings of other authorities (Chochmas Odom; Aruch HaShulchan) as agreeing with his interpretation. In his opinion, Shach is referring to a minhag, established in his generation or earlier, to not eat any animal species for which there was no mesorah. Chazon Ish suggests several reasons why such a minhag may have begun, including the possibility that people would not know how to check whether this unfamiliar animal is a tereifah (has some flaw that renders it non-kosher) or that they may assume that it is a chayah and permit its cheilev when it is not.

On the other hand, several other prominent poskim (Kaf HaChayim 80:5;

Darkei Teshuvah 80:3) were unaware of such a minhag, and, in addition, many authorities question why early poskim never clearly mention such a practice.

CONTROVERSIAL RESULTS – 1950 IN MADAGASCAR

In 1950, there was an attempt to import Madagascar beef from a variety of cattle called zebu into the new State of Israel. The zebu, the common cattle of India, has some noticeable differences from the common European beef cattle, including a large hump between its shoulders, and a very large hanging fold of skin under its throat called a dewlap. It definitely ruminates and has fully split hooves.

A dispute developed between the Chazon Ish and Rav Herzog, first Chief Rabbi of the State of Israel, regarding whether this meat could be considered kosher and imported into Eretz Yisroel, Rav Herzog contending that there is no need to have a mesorah that a species of beef is kosher, and the Chazon Ish objecting. To avoid a major dispute within the fledgling country, Rav Herzog did not allow the beef into the country.

1990’S IN SOUTH AMERICA

A few years ago, a major controversy developed in Eretz Yisroel regarding the origin of the kosher beef raised in South America. Land in Israel is scarce, whereas much of South America is perfect for raising beef cattle. In recent years, even the hechsherim with the highest standards have arranged for shechitah in South America, significantly lowering the price of beef.

A question arose regarding the common breeds of South American beef cattle because they include animals crossbred from different varieties, including the zebu. Rav Elyashiv, who usually rules according to the Chazon Ish, contended that one should not slaughter these cattle for kosher use without verifying that they are not descended from zebu cattle. Other Eretz Yisroel poskim were not concerned about this possibility, contending that even if a minhag exists not to eat zebu, the practice does not include beef varieties that look like European cattle, even if their ancestral background may include zebu.

GIRAFFE BURGERS

Certainly the Chazon Ish would not approve of giraffe meat, even though giraffe has fully split hooves and ruminates. Contrary to a common misconception, a giraffe has perfectly split hooves, and also chews its cud. Other than the Chazon Ish’s concern about mesorah, there is only one halachic reason to ban giraffe meat – the opinion of the Beis Yaakov, quoted above, that a chayah must have horns. Although a giraffe has boney protrusions on the top of its head, some might argue that these are not true horns, thus concluding that a giraffe is non-kosher according to this opinion of the Beis Yaakov. However, since most authorities reject this approach, the giraffe can safely be regarded as a kosher species because of its simanim.

Actually, to the best of my knowledge, no one has ever shechted a giraffe because of several practical concerns. Giraffe meat is so tough that even non-Jews are not tempted to eat its meat. Also, giraffes are very expensive zoo animals, and are extremely powerful creatures difficult to convince that they should cooperate with the shocheit. However, there is no truth to the persistent rumor that no one knows where to shecht a giraffe. The area of its neck appropriate for shechitah may run up to seven feet long, certainly many times the length of the corresponding shechitah area of a dove.

BUFFALO BURGERS

At this point, we will return to our original discussion. Reb Yehudah, an Israeli avreich, has been invited to a bison barbecue hosted by his grandfather. Reb Yehudah follows all of Rav Elyashiv’s rulings, and certainly those of the Chazon Ish, to the letter. Someone like him may not eat from a species such as bison, which obviously cannot have a long-standing mesorah since it is a native American. Reb Yehudah could not comprehend how someone could provide a hechsher to a product that the Chazon Ish would prohibit.

On the other hand, not all chareidi Eretz Yisroel poskim accept the Chazon Ish’s ruling in this matter. Rav Vozner (Shu”t Shevet HaLevi 10:114), in a responsum addressed to some chassidic poskim, ruled that one may slaughter and eat species that do not have a mesorah. He was uncertain whether the Chochmas Odom and the Shach ever meant that land animal species require a mesorah. However, Rav Vozner ruled this way only for chutz la’aretz and alluded to the possibility that one should be stringent in Eretz Yisroel out of deference to the Chazon Ish.

CREATING SHALOM

With this background, I will explain how I mediated the family feud that had developed between Zeidi and Reb Yehudah. Reb Yehudah called me first. I explained to him that although Rav Elyashiv and the Chazon Ish would clearly prohibit bison because of minhag, many prominent poskim dispute that such a minhag exists, contending that one may eat a species identifiably kosher. Thus, someone who follows Rav Elyashiv or the Chazon Ish in halachic decisions should indeed not eat a species that has no mesorah. On the other hand, one who follows other poskim is entitled to rely on those opinions who consider these species to be kosher based on simanim.

I then spoke to Zeidi, who was perturbed that his grandson did not consider him kosher enough and that “Yehudala” was going off the deep end with his chumros. I explained that although American poskim rule bison to be kosher, once the Chazon Ish holds that a minhag exists to eat animals only with a mesorah, the people that Yehudah lives among will not be lenient against the Chazon Ish’s position. I assured Zeidi that Yehudah was not hunting (no pun intended) for chumros, but that in his circle this was accepted halacha. Although Zeidi was disappointed that Yehudah would never enjoy “buffalo,” he accepted my explanation and served beef steak, presumably not zebu, in addition to his buffalo burgers.

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Proper Prayer Rejoinders, or To Brich or not to Brich

Yaakov, a relative newcomer to Yiddishkeit, visited a new community and davened each prayer at a different shul. He noticed that in each shul, the responses to Kaddish were different, which he found surprising. His rabbi explained to him the background.

When hearing Kaddish, we say “Amen” at several places in addition to saying the very important “Amen, y’hei shmei rabba mevorach le’olam ule’almei almaya”. (The poskim dispute whether one should also add “yisbarach” to this sentence, the Shulchan Aruch [Orach Chayim 56:3] ruling that one should, and the Gr”a ruling that one should not.) In addition, Ashkenazim respond to the words, shmei dekudsha brich hu, His holy name, blessed is He, by repeating the Chazan’s words brich hu. (Nusach Sefard and Sefardim say Amen at this point.) However, most people do not realize how late this response of brich hu came into practice and also are not familiar with the halachos regarding it; many times one may not recite this response as it constitutes an interruption. The goal of this article is to explain both the historical background of brich hu, and when we should and should not recite it. We will also discuss when to respond to the other responses of the Kaddish.

The Gemara (Brachos 3a; Sotah 49a) mentions Kaddish and lays special emphasis on responding Amen, y’hei shmei rabba mevorach le’olam ule’almei almaya with fervent feeling. The poskim accentuate the importance of not talking while someone is reciting Kaddish. One should pay careful attention to the recital of the Kaddish and know to which praise of Hashem one is responding (Shulchan Aruch Orach Chayim 56:1).

CHRONICLE OF A RESPONSE

What exactly is brich hu?

The words brich hu, are Aramaic for “blessed be He,” and are a repetition of two of the words of the Kaddish just said by the chazzan at that point viyis’halal shmei dekudsha brich hu li’eila min kal birchasa ve’shirasa… da’amiran be’alma ve’imru amen, exalted be the name of the Holy One, blessed be He Who shall be praised… beyond all blessing and song… that are declared in the world. And respond: Amen.

When did responding brich hu become a standard part of davening? Surprising as this may seem, no early poskim mention a custom of responding with just these two words. The custom started about four hundred years ago when it was not unusual to find people responding at this point of Kaddish with a refrain similar to the one we recite. The Taz (Orach Chayim 56:3) reports a practice to accentuate the praise of Hashem by joining the Chazzan at the point when he reaches the words shmei dekudsha, His holy name, by accompanying him when he recites the three words brich hu li’eila, which means that the Congregation recited words that translate as Blessed is He above. The Taz condemns this practice harshly since these three words may imply an unintended blasphemous statement — that Hashem is blessed only above, but not below. Therefore, the Taz rules that one should continue by reciting the subsequent three words, thus resulting in the following praise, brich hu li’eila min kal birchasa, which translates as Blessed is He above all blessing. This clarifies one’s intent and removes any concern about blasphemy. However, contemporary Ashkenazic practice does not recite this elongated response, but instead reduces the response to the two words, brich hu, blessed be He, which also accomplishes praising Hashem with no hint of blasphemy. Some Hassidic circles indeed follow the advice of the Taz and recite brich hu li’eila min kal birchasa.

This explains the origin of the custom to recite brich hu to Kaddish. What we still do not know is when we may not recite it. Explaining these halachos requires some introduction.

BARUCH HU UVARUCH SHEMO

The response brich hu is similar to our response Baruch Hu uvaruch shemo, blessed is He and blessed is His name, which we recite upon hearing Hashem’s name articulated as part of a bracha. The first halachic authority to mention this practice is the Rosh about 800 years ago. The Tur (Orach Chayim 124) states, “I heard from my father [the Rosh] that every time he heard a bracha he would say Baruch Hu uvaruch shemo. He based this practice on the pasuk that states, “When I call Hashem’s name, bring forth greatness to our G-d” (Devorim 32:3), thus upon hearing Hashem’s name, one should add a praise of one’s own. The Rosh added another halachic source for this practice based on the following translation of the pasuk, “Remember a tzadik for blessing” (Mishlei 10:7). This verse teaches that even when mentioning the name of a righteous human being one should bless him; if so, one should certainly bless Hashem when mentioning His name.

Shulchan Aruch (Orach Chayim 124:5) rules that one should respond Baruch Hu uvaruch shemo whenever one hears a bracha. Nevertheless, one may not answer this refrain during birchos keriyas shma or during pesukei dezimra (Magen Avraham 124:9; Mishnah Berurah 124:21). Why not?

WHAT RESPONSES ARE PERMITTED WHILE RECITING THE BIRCHOS KERIYAS SHMA?

The part of davening following Borchu until the shmoneh esrei is called the birchos keriyas shma, because it consists of the brachos established by the Anshei Keneses HaGedolah (the leaders of the Jewish people in the era of Ezra, Mordechai and Esther, during the period prior to and the beginning of the second Beis HaMikdash) before and after reciting Shma. The Mishnah (Brachos 13a) teaches that although usually one may not interrupt these brachos, certain circumstances warrant disrupting them. For example, one may greet an unfamiliar person if one suspects that the person may become angry if one does not welcome him (Bach and Magen Avraham, Orach Chayim 66:2).

However, there is one place during this part of the davening that is so important that one should not interrupt unless it is a life-threatening emergency. This is while saying the pesukim of Shma Yisroel and Baruch shem kovod malchuso li’olam va’ed (Shulchan Aruch 66:1).

==It is not clear cut what the halacha is regarding responses to davening while one is davening. The Rishonim dispute whether one may respond to Borchu, to Kedusha, and Amen yehei shmei rabba to Kaddish during the birchos keriyas shma. The Rosh (Berachos 2:5) disputes with his rebbe, the Maharam Rotenberg, who prohibited this practice. Those who prohibited this practice contended that one may not interrupt the brachos of keriyas shma for the sake of a different praise, such as responding to Kaddish or Kedusha. Those who permitted held that responding appropriately to Hashem’s praises is no worse than responding to the greeting of a person, which is permitted under certain circumstances, as mentioned above.

The poskim conclude that one may answer the following responses while reciting the birchos keriyas shma:

A. “Amen, y’hei shmei rabba mevorach le’olam ule’almei almaya” in Kaddish.

B. “Amen” to the Chazzan’s da’amiran be’alma in Kaddish, but not at the other places in Kaddish (Chayei Odom 20:4).

C. One answers “Boruch Hashem hamevorach la’olam va’ed” to Borchu, whether the Borchu before birchos keriyas shma or the one that precedes an aliyah (Magen Avraham 66:6).

D. “Kodosh kodosh…” and “Boruch kvod Hashem mimkomo” in Kedusha. However one should not respond to the other parts of Kedusha we traditionally say, even the sentence beginning Yimloch (Ateres Zekeinim).

E. “Amen” to the brachos of Ha’Keil Hakadosh and to Shma Koleinu (Rama 66:3).

F. The words “Modim anachnu Loch” recited in response to the Chazan’s saying Modim in the repetition of Shmoneh Esrei (Rabbeinu Yonah, Brachos 7b; Mishna Berurah 66:20).

HALLEL AND MEGILLAH

The Gemara (Brachos 14a) discusses whether the same rules that apply to interrupting the birchos keriyas shma also apply to the full Hallel and recital of the Megillah. The Gemara questions whether the rules governing the birchos keriyas shma should be stricter than those for Hallel and Megillah, since the requirement to recite keriyas shma is min haTorah, whereas the mitzvos of Hallel and Megillah are only rabbinic in origin. Alternatively, the Gemara suggests that since both Hallel and Megillah publicize miraculous events, perhaps the rules of interrupting them should be stricter. The Gemara concludes that we should treat the rules of birchos keriyas shma Hallel and Megillah the same. Thus, all the responses listed above are recited when one is in the middle of Birchos keriyas shma, Hallel, or hearing the Megillah.

The poskim debate whether someone holding in the middle of the birchos keriyas shma may respond amen when he hears someone recite the brachos before or after an aliyah. Magen Avraham (66:6) rules that one should recite Amen to these brachos, whereas the Pri Megadim questions this practice. The Mishna Berurah (66:18) concludes that he may recite amen if he is between two of the brachos, such as he has just completed “Yotzeir HaMeoros” or “HaMaariv Aravim.”

This dispute is based on an interesting story. Someone was once delayed in davening, and was in the middle of the birchos keriyas shma when he was called up to the Torah for an aliyah. May he recite the brachos on the Torah even though it is an interruption in the middle of birchos keriyas shma?

The Sefer HaManhig ruled that he should accept the aliyah and recite the brachos (Tur 66). Not accepting an aliyah when one is called to the Torah is an insult to Hashem’s honor, and certainly Hashem deserves at least as much honor as the honored individual discussed earlier. Therefore reciting the brachos has the same status as greeting a person who deserves honor and may be recited during the birchos keriyas shma. The Magen Avraham apparently holds that answering amen to these brachos has the same halachic status as the Sefer HaManhig’s aliyah case and therefore one should recite this amen even in the middle of birchos keriyas shma. The Pri Megadim disputes with the Magen Avraham feeling that this amen is no different from amen to any other bracha.

However, the Rashba (Shu”t HaRashba 1:185) disagrees with the Sefer HaManhig’s conclusion, ruling that someone in the middle of this part of davening who is called to the Torah should not go up, but someone else should take his aliyah instead (Beis Yosef, Orach Chayim 66). The Shulchan Aruch (66:4) follows the latter opinion, whereas most other opinions rule that he should take the aliyah and recite the brachos, but be careful not to interrupt in any other way (Magen Avraham 66:8).

A THUNDERING BRACHA

The poskim also dispute whether he may recite the bracha on thunder while in the middle of birchos keriyas shma. Magen Avraham 66:5 rules that one should, whereas the Bechor Shor (Brachos 13a) disagrees, contending that one should interrupt one praise of Hashem, the Shma, with another, the bracha on thunder. The Chayei Odom reaches a compromise, ruling that one should recite the bracha if he is between the brachos of keriyas shma, but not in the middle of a bracha. This last dispute remains unresolved (Mishna Berurah 66:19). Thus, if someone hears thunder while reciting Hallel or the birchos keriyas shma, or reading or hearing the Megillah, it is his choice whether to recite the bracha or not. He might want to ask his posek in advance what to do.

Although usually one should recite the bracha Asher Yatzar immediately after washing one’s hands when leaving the lavatory (see Shulchan Aruch 165:1), one should not recite it during birchos keriyas shma but should postpone its recital until after Shmoneh Esrei (Mishna Berurah 66:23). The same policy should follow during Hallel or Megillah; he should wait to recite Asher Yatzar until after Hallel and Megillah and their concluding brachos are completed.

The poskim dispute whether one may recite amen to a different bracha that one hears when he is between two brachos of birchos keriyas shma. Some contend that he may recite amen after hearing any bracha, since he is currently between brachos (Pri Megadim, Eishel Avraham 66:7). Others contend that he may only recite amen to the bracha that he just recited, such as he heard the end of the bracha from the chazzan or from a different individual (Chayei Odom 20:4).

TALIS AND TEFILLIN

What if someone did not have talis and tefillin available before davening, and they become available during birchos keriyas shma? May he recite a bracha prior to donning them or does the bracha qualify as a hefsek during the brachos?

The Rishonim debate this issue. Rashi’s rebbe, Rabbi Yitzchak the son of Rabbi Yehudah indeed recited the bracha before donning both his talis and his tefillin, and brought proof to his actions from the Gemara (Brachos 14b):

The great Amora Rav once began reciting keriyas shma and its brachos without having tefillin. Immediately after he completed Shma, his messenger brought him the tefillin, so Rav immediately donned the tefillin prior to reciting Shmoneh Esrei, and presumably recited the bracha before putting on the tefillin even though he was in the middle of the birchos keriyas shma.

Similarly, Rabbi Yitzchak the son of Rabbi Yehudah reasoned that in a similar situation when he first received talis and tefillin immediately before Shmoneh Esrei he reasoned that he should recite the bracha before donning either one. Tosafos (ad loc.) however disagrees with Rabbi Yitzchak the son of Rabbi Yehudah, reasoning that one is required to wear tefillin while davening and therefore donning them is a requirement of the tefillah. As such the bracha before also is not an interruption. However, one is not required to wear a talis during davening, and therefore the bracha before donning it should not preempt the laws of hefsek.

How do we conclude?

The Shulchan Aruch (66:2) rules like Rabbi Yitzchak the son of Rabbi Yehudah that he should recite both the bracha on the talis and the bracha on the tefillin; this is the practice of the Sefardim. The Rama rules like Tosafos that he should only recite the bracha on the tefillin but not on the talis.

WHAT RESPONSES ARE PERMITTED DURING PESUKEI DEZIMRA?

The Anshei Keneses HaGedolah established that one should recite daily praises written by Dovid HaMelech at the beginning of davening (Zohar, Parshas Terumah). We introduce these passages of praise, Pesukei Dezimra, with the bracha of Baruch She’amar and conclude them with the bracha of Yishtabach. The bracha of Yishtabach does not begin with a bracha begins it is linked directly to the bracha of Baruch She’amar. Because these two brachos are linked, one may not interrupt between the two brachos for anything that is not part of the davening. For this reason, it is strictly forbidden to talk during the Pesukei Dezimra (Tosafos, Brachos 46a s.v. kol; Shulchan Aruch Orach Chayim 51:4). Similarly, it is forbidden to answer Baruch Hu uvaruch shemo during this part of davening (Magen Avraham 124:9; Mishna Berurah 124:21). Although it is appropriate to praise Hashem this way when His name is mentioned, one does not interrupt praising Him to do so.

Some poskim contend that interrupting Pesukei Dezimra is halachically equivalent to interrupting the birchos keriyas shma; according to this opinion, one who hears a bracha from someone else during Pesukei Dezimra may not answer Amen to the bracha (Mishkenos Yaakov #68). Other poskim contend that one may answer Amen to any bracha while in the middle of Pesukei Dezimra, and even while in the middle of the bracha of Baruch She’amar (Magen Avraham 51:3). The consensus is that although it is clearly forbidden to talk during the Pesukei Dezimra, answering Amen to any bracha is permitted. Furthermore if someone needs to recite Asher Yatzar, or to recite the bracha on thunder or lightning, one may do so during Pesukei Dezimra and one may certainly answer the responses listed above in Kaddish, Borchu and Kedusha during this part of davening (Mishna Berurah 51:8. Nevertheless, Chayei Odom [20:3] rules that one should not recite Asher Yatzar until after Shmoneh Esrei.). However, reciting brich hu during Pesukei Dezimra is similar to reciting Baruch Hu uvaruch shemo and constitutes an interruption during Pesukei Dezimra. Thus, although many people are unaware of this halacha, someone in the middle of Pesukei Dezimra when the chazzan begins reciting Kaddish may not answer brich hu to the Kaddish or to the amen at the beginning of Kaddish. On the other hand, although he should answer Amen, y’hei shmei rabba mevorach le’olam ule’almei almaya and the amen at da’amiran be’alma. He may answer amen to the bracha of Yishtabach.

AFTER YISHTABACH

One may not interrupt between completing Yishtabach and beginning the next part of the tefillah (Shulchan Aruch Orach Chayim 51:4), although if one needs to recite a bracha it is better to do so after completing Yishtabach before answering (or saying) Borchu then during the Pesukei Dezimra. For this reason, if someone did not have tzitzis or tefillin available before davening, and they become available during davening (or if he must begin davening when it is too early to recite a bracha on them) he should put them on immediately after Yishtabach and then recite the brachos on them. Better to recite these brachos between Yishtabach and Borchu (or the beginning of the next bracha) then to do so afterwards.

WHEN MAY ONE NOT SAY BRICH HU

We have seen that although it is a mitzvah to recite baruch hu uvaruch shemo upon hearing Hashem’s name said as part of a bracha, one may only say it in a place where one may interrupt. One may not say these words when one is in the middle of Pesukei Dezimra and certainly not once he has begun the brachos after Borchu. Brich hu, which is of later origin, should be treated the same way. Therefore, one may not recite this refrain when one is in the middle of Pesukei Dezimra or in the middle of birchos keriyas shma. Thus someone who is lagging behind the tzibur and has not yet completed Yishtabach when the Chazan begins the Kaddish should answer Amen Yehei Shma Rabba..., and the amen at the completion of the Kaddish, but should not recite “Brich hu.” In addition, since the Amen at the end of “shmei rabba” (and in Nusach Sfard after “meshichei”) is only custom, he should not recite these either while in the middle of Pesukei Dezimra and certainly not while in the middle of the birchos keriyas shma.

APPRECIATING KADDISH

For the many years Reb Zalman Estolin spent as a slave laborer in Soviet Siberia, he obviously had no minyan, nor any opportunity to answer Amen, y’hei shmei rabba. Upon his redemption from the Soviet Union, he moved to Eretz Yisroel as an old, ill man. The very first morning in Eretz Yisroel, he arose early to walk to shul on his crutches, full with the excitement that he would be davening with a minyan for the first time in decades!

Two hours after davening should have been over, Reb Zalman had not yet returned to his host’s home. The concerned family sent someone to look for the older man, and discovered him sitting in the shul. When asked why he was still there, Reb Zalman answered, “When my minyan ended, another began. And then another. I just could not bear to miss the opportunity to recite Amen, y’hei shmei rabba one more time.” (Just One Word by Esther Stern.)

We should always be zocheh to recite Amen, y’hei shmei rabba with this type of enthusiasm!

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Explaining the Customs of Bris Milah

The mitzvah of Bris Milah has been enhanced by many beautiful customs. We will explain the background of these minhagim in the course of a guide to the honors bestowed during a bris and the steps of a bris procedure.

THE DIFFERENT HONORS AT THE BRIS

Each of the “kibbudim” at a bris performs a different mitzvah. The sandek is the greatest honor at a bris since the milah is performed upon his lap. The Zohar teaches that bringing one’s son to a Bris Milah is equivalent to building the mizbayach (the altar) in the Beis HaMikdash and offering all the korbanos of the whole world (Parshas Lech Lecha 95a). Since milah is compared to a korban, the sandek himself is like a mizbayach (altar). In addition, since holding the baby assists the mohel perform the bris, the sandek also partly fulfills the mitzvah of performing the bris.

The kvatter and kvattern perform the mitzvah of transporting the baby to the bris. Frequently, this honor is given to a couple who do not as yet have children. It is hoped that as reward for performing the mitzvah of bring a child to the bris, they will soon merit to bring their own child to a bris.

The other honors at a bris include: placing the baby on Eliyahu’s chair, reciting the b’rachos after the bris, naming the baby (in some places the last two honors are combined), and holding the baby during the b’rachos and the naming.

KVATTER

With this word, the mohel calls the assembled to attention. The “kvaterin” carries the baby in from the women’s area and hands him to her husband, the kvater, who brings the baby to the mohel. Some have the custom of sharing the mitzvah of bringing the baby to the bris among several people, an honor called “cheika.” Those who follow this practice should make sure that each honoree brings the baby closer to where the bris will take place. (I have seen brisin where the people honored with cheika carried the baby in the opposite direction from where the bris was to be held. These individuals did not realize that they were doing the opposite of what they were supposed to be doing and thus not performing a mitzvah.)

Two chairs of honor are set up, one for Eliyahu (Shulchan Aruch Yoreh Deah 265:11) and one for the sandek who will hold the baby during the bris.

WHY IS THERE A CHAIR FOR ELIYAHU?

According to the Midrash Eliyahu Hanavi attends every bris, and the chair that the baby is placed upon before the bris is referred to as Kisay shel Eliyahu. Before Eliyahu rose to heaven and assumed the role of an angel, he was the prophet responsible to admonish the wicked monarchs Achav and Izevel. Eliyahu was a zealot for Hashem’s honor (Melachim 1:19:10, 14) and accused Bnei Yisrael of abrogating Bris Milah. As a response, Hashem decreed that Eliyahu will be present at every bris to see that the Jews indeed fulfill bris milah. Chazal therefore instituted that there should be a seat of honor for Eliyahu at every bris (Pirkei D’Rabbi Eliezer, Chapter 29; Zohar 93a). Eliyahu thus came to be called the “Angel of the Covenant,” since he attends and attests to every bris (Malachi 3:1, 23 with Rashi).

THE SANDEK

The poskim discuss whether it is better to give the mitzvah of sandek to a great tzadik or to a family member (see Shu’t Chacham Tzvi #70). Incidentally, some poskim contend that the father of the baby should be sandek since he thereby assists in the bris which is his mitzvah to perform (Shu’t Divrei Malkiel 4:86). However, the prevailing custom is to give the honor either to a grandparent or other honored family member or to a tzadik or talmid chacham.

Very special rewards and blessings are associated with being sandek. For this reason, the Rama cites a custom not to honor the same person with being sandek twice (Yoreh Deah 265:11; compare Gra and Noda Bi’yehudah, YD 86; see also Shu’t Chasam Sofer, Orach Chayim #159).

There is a custom, seven hundred years old, that the sandek immerse himself in a mikveh before the bris. Since the sandek is compared to the mizbayach, he must make every attempt to make himself pure and holy (Maharil).

B’RACHOS AT A BRIS

Several b’rachos are recited both before and after the bris. Immediately before performing the bris, the mohel recites the b’racha “asher kidishanu b’mitzvosav v’tzivanu al hamilah” (that He commanded us to observe the mitzvah of Bris Milah), and the father immediately recites “asher kidishanu b’mitzvosav v’tzivanu lihachniso bivriso shel Avraham Avinu” (that He commanded us to bring the child into the Covenant of Avraham). If the father is himself the mohel, he recites both b’rachos and then performs the bris. Among Sfardim, the father also recites the b’racha shehechiyanu (Yoreh Deah 265:7). In Eretz Yisrael, shehechiyanu is recited at a bris even by Ashkenazim. In Chutz LaAretz, most Ashkenazim do not recite shehechiyanu at a bris.

WHY ARE TWO B’RACHOS RECITED ON THE MITZVAH OF MILAH?

It is indeed unusual to recite two different b’rachos before fulfilling a mitzvah, each beginning with the words “asher kidishanu b’mitzvosav”. Why do we recite two such b’rachos?

According to one opinion, the b’racha of lihachniso is recited on the mitzvah of training the child in mitzvos (chinuch) rather than being exclusively about milah (Abudraham). It is recited at the bris since this is the first mitzvah that the father performs in raising his child as a Torah Jew.

An alternative approach is that this b’racha is an appreciation for bringing the child into the kedusha of Klal Yisrael (Aruch HaShulchan 265:5-8). According to this approach, the b’racha of lihachniso is a b’racha of thanks and praise rather than being a b’racha on the performance of a specific mitzvah (Tosafos Pesachim 7a).

WHY DO SOME COMMUNITIES RECITE SHEHECHIYANU AT A BRIS, AND OTHERS DO NOT?

This machlokes is hundreds of years old. Usually, we recite a shehechiyanu on a mitzvah that is observed on special occasions, such as Yom Tov, Pidyon HaBen, Shofar, and Lulav. Thus, it would seem that one should recite shehechiyanu at a Bris Milah. Nonetheless, the old minhag in Ashkenaz was to omit shehechiyanu at a Bris Milah (Tosafos Sukah 46a; Rama 265:7). What was the reason for this minhag? (The custom among Sfardim was, and is, to recite shehechiyanu at a bris.)

The poskim offer several reasons why there is no shehechiyanu. Some suggest that shehechiyanu is recited only on a mitzvah that is dependent on a date, such as a Yom Tov, or a very specific time, such as Pidyon HaBen, which is always performed on the thirtieth day after birth (Ran, Sukah Chapter 4). Although Bris Milah can only be performed beginning the eighth day, since there are occasions when one cannot perform the bris on the eighth day (such as when the baby is ill or when it is uncertain which day the baby was born), there was no establishment of shehechiyanu.

An alternative approach is that Chazal did not institute reciting shehechiyanu at a bris because it is not a totally joyous time, since the baby suffers pain. However, other poskim disagree with this reason, pointing out that one recites shehechiyanu when hearing news that includes both good and bad tidings (see Gemara Berachos 46b, 59b). Thus, suffering does not preclude reciting the b’racha of shehechiyanu (Hagahos Maimoniyos, Hilchos Milah 3:4, who also cites two other reasons for the Ashkenazic custom).

The Gra, himself an Ashkenazi, disagreed with the accepted practice and ruled that one should recite shehechiyanu at a bris (Yoreh Deah 265:36). Since disciples of the Gra established the contemporary Ashkenazic community in Eretz Yisrael, they followed his practice to recite shehechiyanu at a bris. As a result, the custom in Eretz Yisrael developed that everyone recites shehechiyanu at a bris. The prevalent Ashkenazic practice in Chutz La’Aretz follows the opinion of Tosafos and Rama not to recite shehechiyanu.

WHAT B’RACHOS ARE RECITED AFTER THE BRIS?

After the bris is performed, two more b’rachos are recited over a cup of wine- first a borei pri hagafen and then a lengthy special b’racha that begins with the words “Asher Kideish Y’did Mi’beten,” (Shabbos 137b). (Sfardim have the custom to recite an additional b’racha, “Borei Atzei Besamim” on a hadas, after the b’racha on the wine, see Shulchan Aruch 265:1.) This b’racha translates, “Praised are you, Hashem our G-d King of the Universe, Who sanctified Yitzchok Avinu from birth, placed a permanent mark on his body, and sealed the holy covenant upon his descendants. As a reward for fulfilling Bris Milah, Hashem the living G-d, command that Avrohom’s descendants be saved from the punishment of Gehenom (Shabbos 137b with Rashi; Shach Yoreh Deah 265:5).

An alternative interpretation of the beginning of the b’racha is that it refers to the three forefathers, Avraham, Yitzchok, and Yaakov (Tosafos Shabbos 137b).

WHY WAS THIS B’RACHA INSTITUTED?

It is unusual to have an additional b’racha recited AFTER a mitzvah is performed.

Some Rishonim explain that milah warrants an extra b’racha since it was commanded to the Avos before the Torah was given (Tosafos Rid to Shabbos 137b). This theme is reflected in the structure of the b’racha, since it refers to the Avos Avraham and Yitzchok (and also Yaakov according to the second explanation above).

The wording of the b’racha is unusual, since it instructs Hashem to command that Avrohom’s descendants be saved from the punishment of Gehenom. What is meant by this unusual b’racha?

This b’racha can be explained by the following Agada. The Gemara teaches that Avrohom Avinu rescues all of his descendents from Gehenom, no matter how many sins they performed during their time on Earth, provided they observed Bris Milah and did not intermarry (Gemara Eruvin 19a). Thus, the observance of just this one mitzvah may be enough to guarantee that a Jew not end up in Gehenom. We ask Hashem to command that all Jews be protected in this way (Shach 265:5).

An alternative approach to explain this bracha is that the Hebrew word “tzavei” should instead be pronounced “tzivah,” He commanded. In this interpretation of the bracha we are not asking Hashem to command- we are mentioning that in this merit he did command (Shaylas Yaavetz #146). Some prominent gedolim have the practice of saying both versions of the bracha, although others take issue with this practice (Shu’t Nimla Tal).

THE NAMING OF THE BABY

After the b’racha “Asher kideish”, the baby is named in a special text that quotes the Prophet Yechezkel (16:6), “vo’e’evor olayich vo’er’eich misbo’seses b’domoyich vo’omar loch ‘b’domayich chayi’ vo’omar loch ‘b’domayich chayi’,” “And I passed over you and I saw you wallowing in your blood. And I said to you, ‘By your blood, live!’ And I say to you, ‘By your blood, live!’

Reading this posuk presents us with the question: Why is the clause “And I say to you, ‘By your blood, live!’” repeated?

The Targum explains this posuk to be quoting Hashem, “When you, the Jews, were deeply enslaved in Mitzrayim, I remembered the covenant made with the Forefathers. I saw your suffering and told you that I will have mercy on you because of the blood of Bris Milah and will redeem you because of the blood of Korban Pesach.” Thus, according to Targum, the two statements “By your blood, live!” refer to the blood of two different mitzvos, Bris Milah and Korban Pesach. (Because of the latter reason, this posuk is also quoted in the Pesach Hagadah.)

A similar interpretation of this posuk appears in a Midrash: “When the Jews exited Mitzrayim they had Bris Milah performed. They took the blood of the milah and mixed it with the blood of Korban Pesach and placed it on the lintels of their doors. For this reason the pasuk repeats, ‘By your blood, live!’ one reference to blood of milah, and the other to blood of Korban Pesach (Pirkei D’Rabbi Eliezer, Chapter 29)

WHEN SHOULD ONE DRINK FROM THE CUP?

The custom is that one places a bit of the wine in the baby’s mouth when reciting the words, “b’domayich chayi.” However, when does the person reciting the b’rachos drink the wine?

According to some opinions, one should drink the wine immediately after completing the b’racha of “Asher Kideish” in order to avoid an interruption (a hefsek) between the b’racha of “HaGafen” and drinking the wine (Tur Yoreh Deah 265). Although the b’racha of “Asher Kideish” intervenes between HaGafen and drinking, this is not considered a hefsek just like reciting the b’rachos of kiddush or havdala between “HaGafen” and drinking the wine are not. However, naming the baby constitutes an interruption since it is not a b’racha. Others contend that naming the baby is not considered an interruption between the b’racha and the drinking of the wine since it is part of the procedure (Itur). To avoid this shaylah, the most common practice in Chutz La’Aretz is to honor one person with reciting the b’rachos and someone else with naming the baby. This way the honoree who recited the b’rachos can lick the wine off his fingers in a discreet way, thus avoiding the hefsek. In Eretz Yisrael, the prevalent custom is to honor one person with both kibudim; some follow the Tur’s approach that he drinks from the cup before he names the baby whereas others follow the Itur’s approach that he does not drink the wine until the baby is named.

WHO DRINKS THE WINE ON A FAST DAY?

Since one may not drink the cup of wine, can one recite a b’racha on the wine if it will not be drunk? Indeed, many poskim rule that making Borei Pri HaGafen on the wine constitutes a b’racha levatalah, a b’racha recited in vain (Itur; Shu’t Ran #52; Mordechai, end of Yoma). Others contend that reciting Borei Pri HaGafen without drinking the wine is not a b’racha levatalah since the b’racha is part of the procedure (Rabbeinu Tam). There are numerous opinions among early Rishonim what is the correct procedure to observe.

Some contend that one should not make the b’racha of HaGafen at all on a fast day (Itur; Shu’t Rashba 7:536). (There are poskim who distinguish between Yom Kippur, when the mother may not drink the wine, and other fast days, where the mother might be available to drink the wine.) In their opinion, when no adult will drink the wine, Borei Pri HaGafen should not be recited. (This follows the first opinion quoted above.)

Others go one step further, contending that one cannot even recite the b’racha of Asher Kideish. In their opinion, since the wine cannot be drunk it is not permitted even to pour a cup of wine for a mitzvah without drinking it subsequently (Mordechai end of Yoma, quoting Rabbeinu Yaakov ben Shimshon). Furthermore, they contend that Asher Kideish may not be recited in the absence of the wine.

This last point is disputed by a prominent Rishon, Rav Yitzchok ibn Giat, who contends that one recites the b’racha Asher Kideish without any wine (quoted by Abudraham and Beis Yosef 265). In his opinion, it is only preferential, but not essential, to recite Asher Kideish over a cup of wine.

Others rule that you make a b’racha on the cup of wine but don’t drink it until after the fast (Rav Tzemach Gaon, quoted by Itur). This opinion contends that when reciting “Borei Pri haGefen” on a mitzvah it is not necessary to drink the cup of wine to avoid a b’racha levatalah. The reason we drink the cup of wine is that it is not a kavod for a “kos shel b’racha” to be left undrunk. However, this requirement is fulfilled when the cup of wine is drunk the evening after the bris.

WHAT DO WE DO WITH THE FORESKIN AFTER THE BRIS?

The foreskin is placed in some sand or earth to remind us that the Jews in the desert buried the foreskins from the milah in the earth (Shulchan Aruch, Yoreh Deah 265:10 from Pirkei D’Rabbi Eliezer, Chapter 29). It also reminds us that the Jews will be as plentiful as the dust of the earth (Breishis 28:14).

TWINS

If there are two milos (plural of milah) to be performed on the same day, such as when there are twins, should one repeat all the b’rachos when performing the second bris, or should one perform the bris on the second child without repeating the b’rachos? There is a dispute among poskim which to do, some poskim rule that when performing two mitzvos that cannot be performed simultaneously one should recite two separate b’rachos (Itur). Others contend that one should recite separate b’rachos because of “ayin hora” that could result (Rama, Prisha, and Beis Shmuel, Even HaEzer 62:3). Although Shulchan Aruch rules that one should recite only one set of b’rachos (Yoreh Deah 265:5), the widespread practice is to make separate b’rachos for each bris, and to interrupt between the two brisos by going outside to require a new b’racha (Shu’t Darchei Noam, Yoreh Deah #27, cited by Rabbi Akiva Eiger and Pischei Tshuvah to Yoreh Deah). (It should be noted that Mishnah Berurah [8:34 & 639:48] rules that changing one’s location after performing a mitzvah does not require a new b’racha.)

BRIS MILAH AND ATONEMENT

The Midrash tells us that Avraham Avinu’s bris took place on Yom Kippur on the place where the Mizbayach of the Beis HaMikdash was later built. Thus, the atonement both of Yom Kippur and of korbanos is combined in the observance of Birs Milah. In the words of the Midrash “Every year HaKodosh Boruch Hu sees the blood of the Bris of Avrohom Avinu and He atones for all our sins.” Thus, Bris Milah guarantees the future redemption of the Jewish people, and the kaparah (atonement) from all sins (Pirkei D’Rabbi Eliezer, Chapter 29).

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