May a Kohen Go to the Dentist?

Yaakov Avinu blessed his sons with brachos appropriate to their future callings in life. They and their children after them for generations engaged in many different professions, some of them even becoming dentists…

Yankel Katz (*Names are fictitious) called me recently with a very surprising shaylah:

“I am scheduled to have a dental implant placed in my mouth. My dentist told me that the procedure may require the insertion of cadaver bone around the implant. Since I am a kohen, I immediately realized that I may have a serious halacha problem on my hands, or more accurately, in his hands and my mouth. May I have these products inserted? May I even go into the dentist’s office knowing he has these remains (parts of a corpse) on hand? Maybe I cannot even enter the building?”

I admit that I was more than a bit incredulous that human remains are commonly used today in basic dentistry and medicine. I did some research and discovered that indeed, Yankel’s information is accurate. Many forms of dental, oral, podiatric and other kinds of surgery utilize cadaver-derived products. Surgeons and dentists use these human products (typically bone, skin, and heart muscle) in various grafting procedures. Similarly, many podiatrists use human remains in the construction of foot implants. Because of this, most periodontists (gum specialists) and dentists specializing in implants store human muscle and bone in their offices. Thus, Yankel’s shaylah is realistic: May a kohen enter an office building knowing that there is probably a dental or foot clinic somewhere in the building that contains human remains? Does this prohibit a kohen from freely entering large office buildings?

Furthermore, a non-kohen who causes a kohen to become tamei will also be violating the Torah. Obviously, the ramifications of these shaylos are ominous, and the potential repercussions could be catastrophic for people employed in most cities. Because of these considerations, I researched this shaylah with utmost seriousness.

There are three potential halachic issues involved in this shaylah:

I. Benefiting From Human Remains (Issur Hana’ah)

II. The Mitzvah of Burial

III. Tumah.

To address these questions, we first need to gather some factual information. I began by asking Yankel’s dentist the following questions:

1) How extensively are cadaver bones and muscle used?

2) How much material does a dentist keep in his office?

I received the following answers:

1) Every periodontist and oral surgeon has this material in his office. In addition, many general dentists have it too if they perform gum surgery or implant surgery.

2) There is no practical way to answer this question accurately. Specialists such as oral surgeons probably have a lot. I keep between 2-10cc. They are usually stored in 0.5, 1, and 2cc bottles.

And now some background to the halachic shaylos involved:

I. BENEFITING FROM A CORPSE

May one benefit from a corpse or from human remains?

The Gemara rules that one may not benefit from a corpse (Avodah Zarah 29b). However, the Gemara does not discuss whether this prohibition applies only to the remains of a Jew or also to those of a non-Jew.

Why should it make a difference?

The Torah pasuk teaching that one may not benefit from a corpse refers to a Jew. Thus, many poskim conclude that the prohibition is restricted to the remains of a Jew (Tosafos and Rashba, Bava Kamma 10a; Nekudos HaKesef and Gra, Yoreh Deah 349; Shu’t Radbaz #741; Mishneh LaMelech, Hilchos Aveil 14:21). Others rule that remains of either Jews or non-Jews are equally forbidden (Shu’t Rashba 365; Shulchan Aruch, Yoreh Deah 349:1). Still others compromise between these two positions, contending that the prohibition to use a gentile cadaver is Rabbinic, whereas not using a Jewish corpse is prohibited min haTorah (Pischei Teshuvah ad loc.).

In a circumstance of pikuach nefesh one may of course benefit, as is true with virtually all mitzvos of the Torah. Although tooth replacement is not a life threatening urgency, it is important to use the best quality dental implant.

To quote Yankel’s dentist, himself an observant Jew:

“In my opinion, the severity of this halachic issue should hinge on the detriment caused by tooth loss. Clearly losing one tooth or even all the teeth will not result in death. However, tooth loss often results in dietary/nutritional issues. People who have a difficult time chewing will not have a proper diet. Although people who lose their teeth can still eat, they tend to eat soft foods, which are usually high in carbohydrates and low in protein, vitamins, and minerals. Foods that are high in protein, vitamins, and minerals, such as meat, poultry, grains, and fresh fruits and vegetables, tend to be harder to chew. Consequently, people who eat mainly soft foods may become undernourished. I have seen many cases where people receiving their first set of dentures lose a lot of weight due to the difficulty involved in learning how to use them. Some people adapt and those who do not often seek implants if they can afford it. The only thing preventing most people from having implants is the exorbitant cost, since insurance does not usually pay for them at this time.”

At this point, I think it is important to explain the difference between dentures and implants.

DENTURES VERSUS IMPLANTS

Dentures are removable appliances that replace some or all of the teeth. They are usually not firm enough to allow a proper bite and chew, and thus a patient using dentures usually regains only a very partial ability to chew. In addition, they are often uncomfortable.

To install dental implants, the dentist utilizes a surgical screw to which he cements crowns or bridges. Alternatively, he uses the implants as anchors to hold complete dentures in place. In either instance, the resultant bite is much stronger than dentures and allows the patient an almost total ability to chew a regular diet.

Dental researchers introduced implants in the ‘60’s, and they became mainstream practice in the ‘90’s. They are now usually considered the “standard of care” for tooth replacement.

Therefore, one can understand the practical importance of using high-quality implants, assuming, of course, that no compromise of halacha results for either the patient, the dentist, or kohanim in the vicinity.

USE OF HUMAN TISSUE

Rav Moshe Feinstein wrote a teshuvah concerning transplanting human remains in non-life-threatening situations (Shu’t Igros Moshe, Yoreh Deah 1:229, 230). Clearly, one may transplant such organs as kidneys, livers, and heart because of pikuach nefashos (life-threatening emergency). However, transplanting items such as bone, cornea, muscle, and ligament are not usually for life-threatening situations. As explained above, dental implants relieve a non-life-threatening emergency, although one could argue that these situations are considered choleh kol gufo, where halachic rules are somewhat relaxed. Nevertheless, treating a choleh kol gufo does not permit violating a Torah prohibition.

We noted above that there is a dispute whether one may use remains of a non-Jew; Rav Moshe concludes that, under extenuating circumstances, one may rely on the lenient opinions. A second question now presents itself, which is whether one may assume that the remains used are those of a non-Jew, since using remains of a Jew is certainly prohibited min haTorah. Again, here also Rav Moshe ruled leniently that one may assume that the remains are of non-Jewish source, since most people are not Jewish (Mishneh LaMelech, Hil. Aveil 3:1).

NOT THE NORMAL USE

Some poskim permit the use of human remains for non-life-threatening emergencies because of a different line of reasoning. The Gemara (Pesachim 25b) rules that someone who is ill, but does not have a life threatening condition, may apply a balm made from orlah fruit (that grew in the first three years of a tree’s growth), notwithstanding that the Torah prohibits benefiting from such fruit.

Why is this permitted where the situation is not life threatening?

This is because many prohibitions that are asur b’hana’ah (forbidden to benefit from), are prohibited min haTorah only when the prohibited item is used in its normal way. Smearing fruit on one’s skin is not a typical, normal use. Since orlah is prohibited min haTorah b’hana’ah only when used in its normal way, smearing orlah fruit as a balm involves only a rabbinic prohibition, which is relaxed for an ill person.

However, this leniency does not apply to all prohibitions. For example, the Torah prohibits using kilayim (forbidden fruit of a grapevine) even in an atypical way. For this reason, an ill person may not smear kilayim as a balm, even though he may smear orlah balm.

Where does the prohibition to use human remains fall? Is it like orlah, and is permitted for an ill person to use in an atypical manner, or like kilayim and prohibited.

The poskim dispute whether the prohibition not to use human remains applies to using them in an atypical way, Shu’t Radbaz #979 and Mishneh L’Melech, Hilchos Aveil 14:21 are lenient, whereas Rabbi Akiva Eiger (notes to Yoreh Deah 349) prohibits. If it is permitted, there is a basis to permit the use of human remains from a Jew for someone who is ill when the situation is not life-threatening.

Rav Moshe rules that min hatorah one may not use human remains in an atypical way, although other poskim are lenient (Shu’t Har Tzvi, Yoreh Deah #277). The latter approach might allow using muscle and bone for implants even from a Jewish cadaver.

However, since there are alternative sources for implants, such as bovine tissue, it is halachically unclear whether this justifies use of human implants. Although some dentists feel that the cadaver-based material is superior, others do not agree. Therefore, someone who is considering cadaver implants should ask a shaylah from his or her Rav, whether or not one is a kohen. In addition, although the dentist may have asked a shaylah and been told that he or she may use human implants, the patient’s Rav may feel otherwise. Thus I believe that a frum dentist who received a psak that he may use human tissue should advise his frum patients to ask their own shaylah.

II. THE REQUIREMENT TO BURY THE DEAD

Is one required to bury a small amount of human remains?

The poskim dispute how small an amount of Jewish remains requires the mitzvah of burying. Some contend that one must bury even an amount as small as a k’zayis (Tosafos Yom Tov to Shabbos 10:5). Others contend that one is required to bury only that which could represent an entire body (Mishneh LaMelech, Hilchos Aveil 14:21). However, it seems that all agree that there is no Torah mitzvah to bury the remains of a gentile, except due to tumah concerns. Thus, this question would not affect our shaylah once we assume that the remains involved are of a non-Jew.

III. TUMAH AND A KOHEN

A human cadaver (meis) of either Jew or gentile conveys tumah when a person touches remains or carries them. Although these halachos do not affect most Jews nowadays, a kohen is still forbidden to come in contact with human remains in a way that he will become tamei.

Jewish remains convey tumah through ohel, which means that a kohen may not be under the same roof or in the same room as the remains. However, if all the doors and windows in the room holding the remains are closed, the tumas ohel is probably contained within that room (see Nekudos HaKesef on Taz, Yoreh Deah 371:3; see also Shu’t Noda BiYehudah, Yoreh Deah #94). However, there is a lesser form of tumah, called sof tumah latzeis (lit., the tumah will eventually leave), that extends beyond the closed doors or windows, though only in the direction that one will eventually remove the tumah.

OHEL AND A NON-JEW

The poskim dispute whether non-Jewish remains convey tumah through ohel; i.e., does someone in the same room as non-Jewish remains become tamei? According to those who contend that non-Jewish remains convey tumas ohel, a kohen may not enter a room containing a gentile corpse or part of a corpse. Thus, a kohen should be careful not to enter any hospital except for a life-threatening emergency, since there is likely to be human remains somewhere in the hospital. Similarly, a kohen may not enter a museum without carefully verifying that it does not contain any human remains — an unusual circumstance. According to those who contend that non-Jewish remains do not convey tumas ohel, a kohen may enter a hospital when one may assume that it contains no Jewish remains.

The Shulchan Aruch rules that non-Jewish remains do not convey tumas ohel, yet a kohen should still be machmir not to be in the same ohel as gentile remains. Thus, a kohen should not visit someone in the hospital unless there is an extenuating reason, i.e., there is something important that only he may accomplish. Similarly, a kohen should not enter a museum without verifying that it does not contain human remains. [This discussion is limited to a case where the remains in the hospital are of a non-Jew. In a situation where there are likely to be Jewish remains in the hospital, a kohen would be allowed to enter the hospital only for a life-threatening emergency (pikuach nefashos).]

Thus, if we assume that the remains contained in the dental office are a non-Jew’s, then a kohen entering the office would not entail a halachic violation, but would be something that should be avoided (according to the above ruling of the Shulchan Aruch). However because of other halachic factors (too complicated to explain in this article), there is a basis to be lenient and allow a kohen to enter the dentist’s office and certainly the building. Personally, I would encourage the dentist to store the remains in a way that guarantees that there is no tumas ohel, a procedure that I will gladly explain to any dentist on an individual basis, but that is too complicated to elucidate in this article.

WHAT ABOUT YANKEL KATZ’S IMPLANT?

So far we have discussed whether one may use human remains as an implant and whether a kohen may enter the office. Assuming that Yankel’s Rav rules that he may rely on the remains being of a non-Jew and that one may use gentile remains, the shaylah is still not completely resolved. Because Yankel has the bone graft installed in his mouth, he will now be touching and carrying the remains, and a kohen may not touch or carry non-Jewish remains. Is there any possible solution to this issue, or must Yankel opt for a non-human product? The answer to this question lies in a different direction.

IS THERE A MINIMUM AMOUNT OF REMAINS THAT CONVEYS TUMAH?

Here the issue is, how small an amount still conveys tumah? Although the amount of flesh that conveys tumah is one k’zayis, the amount of human bone that conveys tumah in this situation may be as small as a k’se’orah, the size of a barleycorn, which is tiny (Ohalos 2:7; Rambam, Tumas Meis 4:4).

How big is a k’zayis? The estimates of the poskim range from as little as 3 cc. to as much as 25 cc. A dentist typically uses less than this amount in a patient, although sometimes he might use a larger amount. Thus, one should verify this information in order to ask a shaylah. However the amount of bone used is certainly greater than the size of a barleycorn, thus precluding a kohen from receiving a dental implant of human origin.

There is one other aspect about dental offices that one should know: Some dentists keep a human skull on hand for explanation and education. A kohen should clarify in advance before visiting a dentist whether he is a skull-bearer, and should make similar research before scheduling an appointment at the podiatrist and other physicians, who often also use human remains in their surgeries or have cadaver models on hand for visual explanations. A concerned practitioner will procure plastic replicas rather than genuine human parts to minimize difficult situations for a kohen.

A kohen has the privilege of blessing the people, in addition to serving in the Beis HaMikdash, may it be built speedily in our day. Concurrent with these privileges come many responsibilities, including the requirement of avoiding tumah. This necessitates an awareness of possible tumah situations and being aware of new developments in our constantly changing society.

Of Umbrellas, Trees and Other Kohen Concerns

Question #1: Does tumah spread under umbrellas?

Question #2: The exit off the highway I take to work borders on a non-Jewish cemetery, and there are trees overhanging the road. One of the fellows I carpool with is a kohen, but he is not bothered about this issue. Even though I am not a kohen, should I be concerned?

INTRODUCTION

Parshas Chukas discusses tumas meis, the spiritual defilement that results from contact with a corpse or other human remains. When the parah adumah is restored and we endeavor to keep ourselves tahor whenever possible, Jews will be more mindful of how tumah spreads. In that era, every Jew will be careful to be tahor when separating challah and terumah, eating maaser sheini and korbanos, and entering the Beis HaMikdash, all of which should be performed only when tahor. (Unfortunately, today we separate challah, terumah and maaser sheni when we are tamei because we have no other option.) For these and many other reasons, the laws of tumah and taharah will then affect everyone.

In the interim, the laws of tumas meis do not directly concern most people, but they certainly affect kohanim, since the Torah prohibits them from contracting tumas meis. Nevertheless, every Jew should be familiar with these halachos since a knowledgeable non-kohen can often prevent a kohen from becoming tamei, as we will soon see. Furthermore, a non-kohen may not cause a kohen to become tamei.

SOME BASIC LAWS OF TUMAH

A person can become tamei meis in three different ways: 1) maga (touching), 2) masa (carrying or moving, even if one does not touch the remains), and 3) being under the same ohel (roof). A kohen is prohibited from becoming tamei meis by any of these methods and therefore he may not touch, move, or be in the same ohel as human remains. (There are two exceptions when a kohen must become tamei: either to a close relative, or to a meis mitzvah, the corpse of a Jew that has no one else to take care of it.)

DO REMAINS OF A NON-JEW CONVEY TUMAH?

The remains of a gentile convey tumas meis if they are touched or carried. There is a dispute whether these remains convey tumas ohel, and the Shulchan Aruch rules that it is proper to be careful (Yoreh Deah 372:2). Therefore, a kohen should not enter a room containing the remains of a non-Jew. This last halacha affects kohanim entering hospitals when it is not a life threatening emergency, and visiting museums which may have human remains. (My experience is that most museums contain some form of tumas meis.)

AN OHEL IS NOT JUST A TENT

Although the word ohel also means “tent,” or “roof,” tumas ohel has much broader connotations and is conveyed via almost any cover or overhang at least a tefach wide (about three inches) [Ohalos 3:7]. Therefore, a protrusion, overhang, umbrella, or branch with this width is an ohel; if it is over a grave or corpse, it conveys tumah to anyone standing anywhere underneath.

NARROW BRANCHES

Many authorities contend that an ohel that is a tefach wide at one point spreads tumah under its entirety, even under a narrower part (Rambam, Tumas Meis 12:6; 18:1; cf. the Rosh’s commentary to Ohalos 15:10, who disagrees). According to this approach, a tree branch that is a tefach-wide at one point continues to be an ohel when it narrows and can thus spread tumah rather extensively. Some contend that this is true only when the branch or protrusion is a tefach-wide for a majority of its length (Aruch HaShulchan, Yoreh Deah 371:25; the Tosafos Yom Tov seems to disagree.), whereas others maintain that it becomes an ohel only if the tumah is located beneath its tefach-wide section (Sidrei Taharos, Ohalos 12:6).

CONNECTING OHEL AREAS

Tumas ohel spreads from one ohel area to any other ohel that overlaps or connects even if the different ohel “roofs” are of very different heights. Therefore, a series of overlapping or connecting roofs, ledges, caves, umbrellas, tree branches, or even people, can create a continuous ohel that transfers tumah for great distances. Indeed, what appears to be separate buildings or structures may be one large ohel connected by open doors and windows (under certain circumstances, even through closed ones), ledges or tunnels, and tumah in one building may spread across an entire complex of buildings. This is particularly common in hospitals, museums, shopping malls, university campuses and airport terminals where remains in one part of the building, or even on an airplane connected to the terminal through a jetway, may spread tumah throughout the entire facility.

Another example of this principle is that if human remains are transported into an airport terminal or medical facility that connects to a subway station, tumah spreads throughout the entire subway system and prohibits any kohen from remaining anywhere in the subway, since the entire system qualifies as one large ohel. Therefore someone dying in a Bronx subway station contaminates a kohen awaiting his commuter train in Penn Station!

KEEP YOUR DISTANCE

The human body can also function as an ohel that conveys tumah. For this reason, a person leaning out of a window over a corpse or grave becomes an ohel that transfers tumah into the house (Ohalos 11:4). Similarly, people crowded around a corpse or a grave can create a continuous ohel that transfers tumah to anyone who touches them. Because of this, a kohen attending a funeral should keep his distance from the crowd.

In the same vein, when a crowd of people escort a meis on a rainy day, one person whose body is partly above the casket spreads tumah via his body to the area under an umbrella, and then the tumah spreads throughout the crowd from umbrella to overlapping umbrella. Some authorities contend that a kohen must distance himself four amos (about seven feet) away from the umbrella nearest him.

I once attended a funeral in a yeshiva beis hamedrash where the tumas meis spread through an open door under the building’s awning, under umbrellas outside, and then from umbrella to umbrella for a very extended area. The tumah eventually reached an area where many kohanim had gone to avoid becoming tamei, but they were completely unaware that they had violated a Torah prohibition! All this could and should have been avoided with a little foresight and planning, such as arranging an assembly area for kohanim distant enough to keep them tahor. A well-educated yisroel could have resolved the unfortunate problem. Since many people have told me that this is not an uncommon problem, I advise that funerals be arranged for sunny days!

TREES

As we saw above, a kohen must be careful not to pass beneath a tree branch that also overshadows a grave. It is common to find large trees overhanging a cemetery and a section of roadway at the same time. As I pointed out, even if the cemetery is not Jewish the Shulchan Aruch advises that a kohen should avoid defiling himself in the ohel of a non-Jew. It is certainly a problem if the cemetery is Jewish. If this case affects you, I suggest asking a shaylah what to do.

Also, it often happens that one side or one lane of a road passes under trees that overhang a cemetery while the other side or lanes do not. Sometimes, while driving down a city street, a kohen suddenly realizes that the street ahead passes alongside a cemetery and that there are trees overhanging the roadway. Obviously, he should not swerve suddenly and endanger people in order to avoid defiling his kedusha; however, people should prevent this situation by notifying kohanim that the road is problematic.

LEAVES OR ONLY BRANCHES?

Although several places in the Mishnah and Gemara (Bava Basra 27b; Negaim 13:7; Kiddushin 33b) assume that tumas meis spreads underneath trees, the authorities dispute whether leaves and twigs create an ohel, or only branches. Some poskim contend that leaves and twigs rarely become an ohel; others make a distinction between sturdy ones that can bear weight and those that cannot; others distinguish between large leaves and small ones; and still others discriminate between leaves of deciduous trees and those of evergreens that have leaves all year round (see Sukkah 13b; Rambam, Tumas Meis 13:3).

DATELINE: LVOV, POLAND, ROSH HASHANAH, 1620

The halachic questions raised above became mired in controversy in 17^th Century Lvov (more commonly known to Jews as Lemberg), Poland. (Because of the extensive shift of international borders at the end of World War II, this city is now located in the Ukraine.)

On Rosh Hashanah 5381 (corresponding to September 1620), Lvov’s new rav, Rav Yaakov Kopel Katz, noticed that people were walking into a nearby forested area. Rav Katz noticed that the dense foliage under which people were relaxing continued until the local cemetery. Rav Katz prohibited kohanim from entering this area, contending that tumah from the cemetery spread under the tree canopy, contaminating the entire area. Thus, he felt that kohanim relaxing in this area were violating the Torah prohibition of contracting tumas meis.

The townspeople claimed that the Drisha, possibly the greatest posek of his generation, who had himself been a kohen, had walked and sat under these same trees when he had served as Rav of Lvov only a few years before. Rav Katz countered that at the time of the Drisha, the tree canopy must not have extended so far, and the areas he walked under were not connected to the cemetery.

What exactly was the question? Apparently, the trees in question did not have wide branches, but did have dense foliage comprised of small leaves that touched together, leaving no space between them. Rav Katz held that even twigs and leaves not strong enough to support any weight can still combine to form an ohel. He also held that although plants that die in the winter are not significant enough to be an ohel, the deciduous leaves of trees that survive from year to year do qualify as an ohel.

Rav Katz wrote an extensive responsum outlining his halachic concerns and sent it to a different kohen in Lvov, a talmid chacham named Rav Avraham Rapaport. Rav Rapaport disagreed with Rav Katz and penned his own correspondence wherein he maintained that these trees did not spread tumah. Rav Rapaport contended that twigs and leaves form an ohel only when they fulfill the following conditions:

They are strong enough to bear the weight of a layer of plaster applied to them.
Each leaf is itself the size of a square tefach, approximately three inches by three inches. He maintained that one does combine different leaves and/or twigs to form an ohel, even if there is no space between them at all.
The leaves are evergreen (see also Gesher HaChayim pg. 87).

According to Rav Rapaport, the Drisha might indeed have been relaxing under the same foliage that still existed in 1620! (Of course, we will never know.)

Rav Rapaport then mailed the two responsa, his own and Rav Katz’s, to a third scholar, Rav Aharon Abba HaLevi, who concluded like Rav Rapaport, although for slightly variant reasons. He agreed with Rav Katz that leaves combine to form an ohel, but in addition to remaining through the winter and being strong enough to withstand the weight of a layer of plaster, he added yet another condition: They must be sturdy enough not to be blown by a typical wind (see Tosafos, Sukkah 13b).

Rav Rapaport then sent the three responsa to the gadol hador, the Tosafos Yom Tov, for his ruling on the famed trees of Lvov. The Tosafos Yom Tov sided with Rav Rapaport and Rav Aharon HaLevi that the leaves involved were not an ohel. However, the Tosafos Yom Tov held a stringent opinion concerning a related issue that none of the other scholars had addressed. He contended that if the branches are a tefach wide at any point, tumah continues to spread even when they narrow. (As I mentioned above, this is subject to a dispute between the Rambam and the Rosh. Among the later authorities, most rule like the Rambam and the Tosafos Yom Tov [Dagul MeiRevavah on Shach 371:14; Chochmas Odom; Aruch HaShulchan], whereas some rule like the Rosh [Chasam Sofer, Chullin 125a].) (Rav Rapaport printed the correspondence of the four rabbonim as a chapter in his own magnum opus, Shu”t Eisan HaEzrahi #7.)

FROM LVOV TO NORTH AMERICA

This last distinction is critical. It is very common that the branches of a mature tree are a tefach wide near the trunk although they narrow as they grow. According to Tosafos Yom Tov’s conclusion, these trees will spread tumah under their boughs even if they narrow considerably, thus spreading tumah to a considerable extent. The result is that if the branch of a tree one tefach wide at one point spreads over the graves, and this branch then extends over or under a branch from another tree, which in turn stretches over or under a branch from another tree, the tumah will continue to spread as long as each branch is a tefach wide at some point. (As mentioned above, some commentaries contend that the tumah spreads from one branch to another only when both branches are a tefach wide at the point that they cross one another.) This is because beneath each branch is an ohel, and the tumah extends from one ohel to another.

In the contemporary world, this shaylah is extremely germane due to the widespread use of large trees as urban landscape. It is very common for trees to overhang cemeteries in a way that spreads tumah onto nearby highways, streets, and sidewalks. With this information, we can now address the first question raised above: “The exit off the highway I take to work borders on a non-Jewish cemetery, and there are trees that overhang the road. One of the fellows I carpool with is a kohen, but he is not concerned about this issue. Do I need to be?”

There is indeed cause for concern. Due to technical factors such as the width of the branches and the locations of the graves, and halachic factors, one should ask one’s rav what course of action to follow in this situation.

EIGHTEENTH CENTURY

A shaylah very similar to our contemporary case involved a dispute between two mechutanim, both of them prominent rabbonim, Rav Yosef Hock and the Teshuvah Mei’ahavah, Rav Elazar Flekelis, who was the primary disciple and successor of the Noda BiYehudah. The case involved a shul adjacent to a cemetery that was used for fetuses and stillborns, whose unmarked graves convey tumas meis and tumas ohel. A tree’s branches extended over the cemetery and its branches brushed against the shul building. When the windows of the shul were open, if indeed the tree conveyed tumah, the tumah would now spread from the tree through open windows into the shul, creating a problem for kohanim. Rav Hock contended that the tree limbs did not require trimming since they were very weak and would not withstand any weight. Furthermore, it was uncertain whether the tree overhung the unmarked graves, since no one was certain exactly where the fetuses were laid to rest.

However, the Teshuvah Mei’ahavah took issue with many of the facts presented by his mechutan, contending that it was possible that the entire cemetery was already filled with graves, that the tree branches would eventually grow strong enough to bear weight, and that it is far better to accustom the community to trim the branches regularly and avoid any problem. Furthermore, he notes that it is not certain that a branch too weak to support any weight is not an ohel (Teshuvah Mei’ahavah Vol. 1 #89).

CONCLUSION

Certainly umbrellas and trees can convey tumas meis; the halacha discussion is whether thin branches, twigs, and leaves do. Thus, a tree overhanging both a cemetery and a highway provides good reason to research whether a halachic problem exists. The checking of the layout and other factors should be performed by a non-kohen who is highly knowledgeable in the laws of tumas meis.

WHY IS IT PROHIBITED FOR A KOHEN TO COME IN CONTACT WITH A MEIS?

Although it is beyond our ability to fathom the reasons for the mitzvos, we can and should attempt to glean a taste of Hashem’s mitzvos in order to grow from the experience of observing them. Thus, it behooves us to attempt to explain why the Torah bans a kohen from having contact with a meis under normal circumstances.

Rav Hirsch, in his commentary on Vayikra 21:5, provides us with a beautiful insight into this mitzvah. In most religions, fear of death and what happens afterwards are the major “selling points.” Thus, the role of the priest is most important when dealing with death. However, the Torah’s focus is how to live like a Jew—to learn Torah and perform mitzvos, and devote our energies to developing ourselves in Hashem’s image. To emphasize that the Torah is the blueprint of perfect living, the kohen, who is the nation’s teacher, is excluded from anything to do with death. The kohen’s role is to imbue us with the knowledge and enthusiasm to live!!

The Mitzvah of ViKidashto – To Treat a Kohen with Respect

Since the kohen’s role is significant in parshas Naso, read this week in chutz la’aretz, I present…

The Mitzvah of ViKidashto – To Treat a Kohen with Respect

Question: I know the Torah teaches that we are to treat a kohen with honor, yet I always see people asking kohanim to do them favors. Am I permitted to ask a kohen to do a favor for me?

Answer:

You are asking a very excellent and interesting question. It is correct that a look at the early poskim implies that one should not ask a kohen to do him a favor, yet the prevalent custom is to be lenient. Let us explore the subject to see whether this practice is correct.

In Parshas Emor, after listing many specific mitzvos that apply uniquely to the Kohen, the Torah states: “And you shall make him (the kohen) holy, because he offers the bread of your G-d. He shall be holy to you because I, Hashem, Who make you holy, am Holy” (VaYikra 21:8). We are commanded by the Torah to treat a kohen differently, since he is charged with bringing the offerings in the Beis HaMikdash (Gittin 59b; Rambam, Hilchos Klei HaMikdash 4:2).

There are both positive and negative aspects to this mitzvah. On the negative side, a kohen who violates his kedushah by marrying a divorcee or other woman prohibited to him must divorce his prohibited wife. The Gemara states that “you shall make him holy,” even against the kohen’s will. Thus, when the Jewish community and its beis din have control over Jewish affairs, they are required to force a kohen to divorce his wife under these circumstances and to physically remove him from the household if necessary (Yevamos 82b).

There is also the positive aspect of this mitzvah, which is to treat the kohen with honor. According to the Rambam, this responsibility is considered a mitzvah min hatorah (Sefer HaMitzvos Aseh 32; Hilchos Klei HaMikdash 4:2), whereas other rishonim contend that this aspect of the mitzvah is only midarabanan (Tosafos, Chullin 87a end of s.v. vichiyivu; Tur, Yoreh Deah 28: Bach ad loc.). Later poskim rule that the mitzvah to treat a kohen with respect is indeed min hatorah (see Magen Avraham 201:4 and Mishnah Berurah op. cit.).

How should the kohen be honored?

The Gemara explains that this respect manifests itself in several ways: “The kohen should open first (liftoach rishon), he should bless first, and he should take a nice portion first” (Gittin 59b, Moed Katan 28b). Similarly, the Talmud Yerushalmi (Berachos 5:4) teaches that when a yisroel walks alongside a kohen, the kohen should be given the more honorary place, which is on the right.

What is intended by the Gemara when it states that “the kohen should open first”? Some commentaries explain that this means that the kohen should be the first speaker, whether in divrei Torah or at a meeting (Rashi, Gittin 59b). Others explain it to mean that the kohen should receive the first aliyah, when the Torah is read (Rambam, Hilchos Klei HaMikdash 4:2 and Rashi in Moed Katan 28b).

The kohen should make the brocha on the meal first (Rashi, Gittin 59b), make kiddush for everyone (Mishnah Berurah 201:12) and lead the benching (Rashi, Moed Katan 28b; Ran and other Rishonim, Nedarim 62b). If he is poor, he is entitled to choose the best portion of tzedokoh available or of the maaser given to the poor (Tosafos, Gittin 59b). According to some opinions, when dissolving a partnership, after dividing the property into two portions of equal value, the kohen should be offered the choice between the two portions (Rashi, Gittin 59b). However, the accepted approach is that this is not included in the mitzvah, and it is also not in the kohen’s best interest (Tosafos ad loc.). However, when a group of friends are together, they should offer the kohen to take the best portion.

Similarly, poskim rule that a kohen should be chosen ahead of a levi or a yisroel to be chazan (Pri Megadim, Eishel Avraham 53:14). Presumably, he should also be given preference for a position to be a Rav, Rosh Yeshiva, or Magid Shiur in a yeshiva, if he is qualified for the position.

It should be noted that the kohen deserves special respect only when he is at least a peer to the yisroel in learning. However, if the yisroel is a Torah scholar and the kohen is not, the Torah scholar receives the greater honor.

There is one exception to this ruling. In order to establish peace and harmony in the Jewish community, the first aliyah to the Torah is always given to a kohen, even when there is a Torah scholar in attendance (Shulchan Aruch Orach Chayim 135:4). As far as other honors go, the Torah scholar should always be given honor ahead of the kohen. (It is interesting to note that, at the time of the Gemara, the gadol hador was given the first aliyah, even if he was not a kohen.)

If the yisroel is a greater talmid chochom than the kohen, but the kohen is also a talmid chochom, some rule that one is required to give the kohen the greater honor (Shach, Yoreh Deah 246:14). Others rule that it is preferred to give the kohen the greater honor, but it is not required (Rema, Orach Chayim 167:14 and Mishnah Berurah 201:12).

According to the Gemara, the kohen should be seated in a place of honor at the head of the table. The Gemara that teaches us this halacha is very instructive. “Rav Chama bar Chanina said: ‘How do we know that a choson sits at the head of the table, because the verse states: ‘kichoson yechahen pe’er, like a choson receives the glory of a kohen (Yeshaya 61:10)’. Just like the kohen sits at the head of the table, so, too, the choson sits at the head of the table” (Moed Katan 28b). Contemporary poskim contemplate why we do not follow this halacha in practice (Rav Sholom Shvadron in his footnotes to Daas Torah of Maharsham 201:2). Although our custom is to seat the choson in the most important place at the wedding and sheva berachos, we do not place the kohanim in seats that demonstrate their importance!

Asking a favor

From the above discussion, we see that I am required to treat a kohen with honor and respect, but we have not discussed whether I may ask him to do me a favor. Perhaps I can treat the kohen with honor and respect, and yet ask him to do things for me. However, the Talmud Yerushalmi states that it is forbidden to have personal benefit from a kohen, just as it is forbidden to have personal benefit from the vessels of the Beis HaMikdash (Berachos 8:5). This Yerushalmi is quoted as halacha (Rema, Orach Chayim 128:44).

However, many authorities note that there appears to be evidence that conflicts with the position of the Yerushalmi. Specifically, the Gemara Bavli refers to a Hebrew slave (eved ivri) who is a kohen. How could someone own a Hebrew slave, if one is not permitted to have personal benefit from a kohen (Hagahos Maimonis, Hilchos Avadim 3:8)?

Several approaches are presented to resolve this difficulty. Some early poskim contend that there is no prohibition in having personal benefit from a kohen, provided that he does not mind. These authorities contend that a kohen may be mocheil on his honor (Mordechai, Gittin #461). On the other hand, many authorities rule explicitly that it is forbidden to use a kohen, even if he is mocheil (Rambam, Sefer HaMitzvos Aseh #32; Smag, Mitzvas Aseh #83).

Other poskim explain that although it is forbidden to use a kohen without paying him, one is permitted to hire a kohen (Smag, Mitzvas Aseh # 83). According to this approach, it is prohibited to use a kohen only when the kohen receives no benefit from his work. In a situation where the kohen gains from his work, one may benefit from him. Thus, the kohen is permitted to sell himself as a slave, since he gains material benefit from the arrangement.

This dispute, whether a kohen has the ability to be mocheil his kovod, is discussed by later poskim also. Rema (128:44), Magen Avraham (ad loc.), and Pri Chodosh (in his commentary Mayim Chayim on Gemara Gittin 59b) rule that a kohen can be mocheil on his honor, whereas Taz (Orach Chayim 128:39) disagrees. However, Taz also accepts that the kohen can be mocheil when he has benefit from the arrangement, as in the case of the Hebrew servant.

Thus, as a practical halacha, the majority opinion permits having a kohen do a favor, provided he is mocheil on his honor. According to the minority opinion, it is permitted only if he is paid for his work.

There is another line of reasoning that can be used in the contemporary world to permit asking a kohen for a favor. The Torah requires giving a kohen honor because he performs the service in the Beis HaMikdash, and, therefore, he has a halachic status similar to that of the vessels of the Beis HaMikdash, which have sanctity. However, only a kohen who can prove the pedigree of his lineage may perform the service in the Beis HaMikdash. Such kohanim are called kohanim meyuchasim. Kohanim who cannot prove their lineage are called kohanei chazakah, kohanim because of traditional practice. These kohanim fulfill the roles of kohanim because they have a family tradition to perform mitzvos, like a kohen does. However, they cannot prove that they are kohanim.

Since today’s kohanim are not meyuchasim, they would not be permitted to perform the service in the Beis HaMikdash and they do not have sanctity similar to the vessels of the Beis HaMikdash. Therefore, some poskim contend that one may have personal benefit from today’s kohanim (Mishneh LaMelech, Hilchos Avadim 3:8, quoting Yefei Mareh).

In this context, the Mordechai records an interesting story (Gittin #461). Once, a kohen washed Rabbeinu Tam’s hands. A student of Rabbeinu Tam asked him how he could benefit from the kohen, when the Yerushalmi prohibits this. Rabbeinu Tam responded that a kohen has kedushah only when he is wearing the vestments that the kohen wears in the Beis HaMikdash. The students present then asked Rabbeinu Tam: if his answer is accurate, why do we give the kohen the first aliyah even when he is not wearing the kohen’s vestments? Unfortunately, the Mordechai does not report what Rabbeinu Tam answered. The Mordechai does cite R’ Peter as explaining that a kohen can be mocheil on his kovod, something this kohen had clearly done. Thus, we have explained why it is permitted to have a kohen do a favor for a yisroel.

The unresolved question is: why don’t we demonstrate honor to a kohen whenever we see him? This question is raised by the Magen Avraham (201:4), who explains that the custom to be lenient is because our kohanim are not meyuchasim. However, he is clearly not comfortable with relying on this heter. Similarly, the Mishnah Berurah (201:13) rules that one should not rely on this heter. On the contrary, one should go out of one’s way to show honor to a kohen.

A kohen who is blemished (a baal mum)

Does the mitzvah of treating a kohen with kedushah apply to a kohen who is blemished (a baal mum) and thus cannot perform the avodah in the Beis HaMikdash?

After all, the Torah states: “And you shall make him (the kohen) holy, because he offers the bread of your G-d” (VaYikra 21:8). Thus, one might think that only a kohen who can offer the “bread of Hashem” has this status. Nonetheless, we derive that these laws apply even to a kohen who is blemished (Toras Kohanim to VaYikra 21:8). Apparently, the other special laws of being a kohen are sufficient reason that he should be accorded honor.

Is there any mitzvah to give honor to a kohen who is a minor?

This matter is disputed by early poskim. Some poskim feel that, since a child is not obligated to observe mitzvos and furthermore cannot perform the service in the Beis HaMikdash, there is no requirement to give him honor. On the other hand, there are poskim who contend that the Torah wanted all of Aaron’s descendants to be treated with special honor, even a minor.

This dispute has very interesting and commonly encountered ramifications. What happens if there is no adult kohen in shul, but there is a kohen who is a minor? If the mitzvah of vikidashto applies to a minor, then the kohen who is under bar mitzvah should be called to the Torah for the first aliyah! This is indeed the opinion of an early posek (Shu”t Maharit #145). However, the prevalent practice is that there is no mitzvah of vikidashto on a kohen who is under bar mitzvah, since he cannot bring the korbanos in the Beis HaMikdash (Magen Avraham 282:6)

A very interesting minhag

A fascinating discussion about the mitzvah of calling the kohen for the first aliyah is found in the responsa of the Maharik (#9). Apparently, there was a custom in his day (the fifteenth century) in many shullen in France and Germany that on Shabbos Breishis they would auction off the first aliyah in order to help pay for community needs. This was considered a major demonstration of kovod hatorah, to demonstrate that people value the first aliyah of the year by paying a large sum of money for it. Maharik compares this practice to a custom we are more familiar with: The selling of Choson Torah on Simchas Torah for a large sum of money.

If a non-kohen bought the first aliyah of the year, the custom was that the kohanim would either daven in a different shul or they would walk outside the shul, so that the non-kohen donor could be called up to the Torah for the aliyah.

In one congregation with this custom, a kohen refused to leave the shul and also refused to bid on the donation. Instead, he insisted that he be given the aliyah gratis. The members of the shul called upon the city government authorities to remove the recalcitrant kohen from the premises, so that they could call up the donor for the aliyah.

The issue was referred to the Maharik, as one of the greatest poskim of his generation. The Maharik ruled that the congregation is permitted to continue their practice of auctioning off this aliyah and calling the donor to the Torah, and they may ignore the presence of the recalcitrant kohen. Since this is their well-established minhag, and it was established to demonstrate kovod hatorah, in such a case a minhag can override the halacha; specifically, the requirement to call the kohen to the Torah as the first aliyah.

In the same tshuvah, Maharik mentions another related minhag that was well-accepted in his day. Apparently, during this period and place, most people fasted on bahav, the three days of fasting and saying selichos that take place during the months of MarCheshvan and Iyar. In addition, the custom on these fast days was to call up for an aliyah only people who were fasting, similar to the practice we have on our fast days. Maharik reports that if all the kohanim who were in shul were not fasting, the kohanim would exit the shul to allow them to call up a non-kohen who was fasting. He rules that this custom is halachically acceptable, since it is a kovod hatorah to call to the Torah on a community-accepted fast only people who are fasting.

Thus, we see from the Maharik’s responsum that, although it is a mitzvah to honor the kohen, there is a greater mitzvah to safeguard the community’s minhag. Nevertheless, the conclusion of the Mishnah Berurah and other late poskim is that one should, in general, try to show at least some honor to a kohen, following the literal interpretation of the statement of Chazal.

The Mitzvah of Duchening (Birchas Kohanim)

In Parshas Naso, the Torah teaches about the beautiful mitzvah of Birchas Kohanim, wherein the kohanim are commanded to bless the people of Israel. This mitzvah is usually referred to by Ashkenazic Jews as “duchening” and by Sefardic Jews as Birchat Kohanim, or occasionally as Nesiyat Kapayim, which refers to the raising of hands that the kohanim do in order to recite the blessings.

Why Is This Mitzvah Called Duchening?

Duchen is the Aramaic word for the platform that is in front of the Aron Kodesh. The duchen exists to remind us of the ulam, the antechamber that stood in front of the Kodesh and the Kodshei HaKodoshim, the holy chambers in the Beis HaMikdash. The Kodshei HaKodoshim was entered on only one day of the year, on Yom Kippur, and then only by the Kohen Gadol. The Kodesh was entered a few times daily, but only to perform the mitzvos of the Menorah, the Golden Mizbayach (altar), and the Shulchan (the Holy Table that held the Lechem HaPanim). Before entering the Kodesh, one ascended into the Ulam as a sign of respect, so as not to enter the Kodesh immediately.

Similarly, in our shuls the Aron Kodesh represents the Kodesh, since we are permitted to open it and to remove the Sifrei Torah when we need to. But, before entering the Kodesh, one ascends the duchen, in this case, also, to show respect by approaching the Aron Kodesh after a preliminary stage.

The duchen also serves other functions, one of which is that the kohanim stand upon it when they recite the blessings of Birchas Kohanim. For this reason, this mitzvah is called duchening (duchenen in Yiddish). In the absence of a duchen, or if there are more kohanim in the shul than there is room on the duchen, the kohanim “duchen” while standing on the floor in the front of the shul.

Basics of Duchening

There is a basic order to the duchening that occurs during the repetition of the Shemoneh Esrai. When the chazan completes the brachah of modim and the congregation answers “amen” to his brocha, someone (either the chazan or a member of the congregation, depending on minhag) calls out “kohanim” to inform the kohanim that it is time for them to begin the brachah. After the kohanim recite the brachah on the mitzvah, the chazan then reads each word of the Birchas Kohanim that is recorded in the Torah (Bamidbar 6:24-26) for the kohanim to recite, and the kohanim respond. The congregation responds “amen” after each of the three brochos. After the last brachah of Birchas Kohanim is completed by the kohanim, the chazan returns to the repetition of the Shemoneh Esrai by reciting the brachah “sim shalom“.

The Gemara and poskim teach that at each of these stages, one must be careful not to recite one’s part before the previous step has been completed. Thus, the person who calls out “kohanim” must be careful not to do so before the congregation has finished answering “amen” to the chazan’s brachah; the kohanim should be careful not to recite the words of the brachah before the chazan has completed saying the word “kohanim”; the chazan may not call out “yevarechecha” before the congregation has completed saying “amen” to the brachah of the kohanim, etc. It is important to be mindful of these halachos and allow each stage to be completed before beginning the next. Unfortunately, even well-learned people are sometimes not sufficiently careful and patient to wait until it is time for their part to be recited.

Wearing Shoes During Duchening

A kohen may not duchen while wearing shoes. The Gemara teaches that this was one of the nine takkanos that were instituted by Rabbi Yochanan ben Zakai (Sotah 40a). Although there would seem to be an obvious association with the halacha that the kohanim were barefoot when they performed the service in the Beis HaMikdash, the actual reason for this takkanah is unrelated. Rabbi Yochanan ben Zakai was concerned that a kohen’s shoelace would tear while he was on the way to the duchen and, while stopping to retie his shoelace, he would miss the duchening. However, people who saw that he missed the duchening would not realize what happened. They might start a rumor that he did not duchen because he is not a valid kohen! For this reason, Chazal instituted that every kohen simply removes his shoes before duchening.

What if the Chazan is a Kohen?

The mishnah states that when there is only one kohen in shul, and he is the chazan, then he may (and should) duchen (Berachos 34a). In this instance, the kohen will remove his shoes and wash his hands prior to beginning repetition of the Shemoneh Esrai. There is a dispute among poskim whether a kohen may duchen when he is the chazan and there are other kohanim who will be duchening. The Shulchan Aruch rules that he should not duchen under these circumstances, because of a concern that he will become confused where he is up to in the davening and have difficulty resuming his role as chazan (Orach Chayim 128:20). Chazal instituted this prohibition even when we are certain that the chazan will not become confused, such as today, when he has a siddur in front of him (Mishnah Berurah 128:72).

However, the Pri Chodosh rules that he may duchen, and that the concern referred to by the Shulchan Aruch was only when the chazan might become confused (such as when he does not have a siddur to daven from). In most communities in Eretz Yisrael, the custom is to follow the Pri Chodosh’s ruling allowing a kohen who is the chazan to duchen. However, in chutz la’aretz the practice is to follow the Shulchan Aruch, and the chazan does not duchen (unless he is the only kohen).

In a situation where the chazan is the only kohen and there is a platform (the “duchen”) in front of the aron kodesh, there is a very interesting halacha that results. Since the duchening should take place on the platform, the kohen walks up to the duchen in the middle of his repetition of the Shemoneh Esrai. After completing the duchening, he returns to his place as chazan and completes the repetition of the Shemoneh Esrai.

The Minyan Disappeared

What do you do if you started davening with a minyan, but in the middle of davening, some men left, leaving you with less than a minyan? Can you still duchen?

If the minyan started the duchening with ten men or more, and then some men left in the middle of the duchening, they should complete the duchening (Biur Halachah 128:1 s.v. bipachus).

What Happens if a Kohen Does Not Want to Duchen?

A kohen who does not want to duchen should stand outside the shul from before the time that the word “kohanim” is called out, until the duchening is completed.

The Days that We Duchen

The prevalent custom among Sefardim and other Edot Hamizrach is to duchen every day. There are many Ashkenazic poskim who contend that Ashkenazim should also duchen every day. However, the standard practice in chutz la’aretz is that Ashkenazim duchen only on Yomim Tovim. In most of Eretz Yisroel, the prevalent practice is that Ashkenazim duchen every day. However, in Tzfas and much of the Galil, the custom is that the kohanim duchen only on Shabbos and Yom Tov.

Why do Ashkenazim duchen in Eretz Yisrael every day, and in chutz la’aretz only on Yom Tov?

Several reasons are cited to explain this practice. Rama explains that a person can confer blessing only when he is fully happy. Unfortunately, except for the Yomim Tovim, the kohanim are distracted from true happiness by the difficulties involved in obtaining basic daily needs. However, on Yomim Tovim, the kohanim are in a mood of celebration. Thus, they forget their difficulties and can bless people with a complete heart (Rama 128:44; cf. Be’er Heiteiv ad loc.). Thus, only on Yom Tov do the kohanim duchen.

In Eretz Yisroel, the practice is to duchen daily, because the Ashkenazim there followed the ruling of the Vilna Gaon. He contended that Ashkenazim everywhere should duchen every day.

Why do the kohanim in Tzfas duchen only on Shabbos and Yom Tov?

The reason for this custom is unclear. I was once told in the name of Rav Kaplan, the Rav of Tzfas for many decades, that since Tzfas had many tzoros over the years, including many serious earthquakes and frequent attacks by bandits, the people living there did not have true simcha. However, they were able to achieve enough simcha on Shabbos and Yom Tov to be able to duchen. This reason does not explain why the other communities in the Galil duchen only on Shabbos and Yom Tov.

It should be noted that the Sefardim in Tzfas duchen every day, not only on Shabbos.

Placement of Shoes

As I mentioned before, Chazal instituted that a kohen should remove his shoes before duchening. Unfortunately, some kohanim leave their shoes lying around in the front of the shul when they go up to duchen. This practice is incorrect. The kohanim are required to place their shoes under the benches or in some other inconspicuous place when they go up to duchen. It shows a lack of respect to leave the shoes lying about (Mishnah Berurah 128:15)

Washing Hands

Prior to duchening, there is a requirement that the kohanim wash their hands. In some shuls, the Kohanim wash their hands in the front of the shul before they go up to duchen. What is the reason for this practice?

This custom has a source in Rishonim and Poskim and should definitely be encouraged. Tosafos (Sotah 39a s.v. kol) rules that one should wash one’s hands relatively near the duchen, whereas washing further away and then walking to the duchen constitutes an interruption, a hefsek, similar to talking between washing netilas yadayim and making hamotzi on eating bread. (His actual ruling is that one should wash one’s hands within twenty-two amos of the duchen, which is a distance of less than forty feet.) Thus, according to Tosafos, we are required to place a sink within that distance of the duchen where the kohanim stand to duchen. The Magen Avrohom rules according to this Tosafos and adds that since the kohanim wash their hands before Retzei, the chazan should recite the brachah of Retzei speedily. In his opinion, the time that transpires after the kohen washes his hands should be less time than it takes to walk twenty-two amos (128:9). Thus, Retzei must be recited in less time than it takes to walk twenty-two amos. The Biur Halachah adds that the kohanim should not converse between the washing of their hands and the duchening, because this, also, constitutes a hefsek.

Duchening and Dreams

A person who had a dream that requires interpretation and does know whether the dream bodes well should recite a prayer at the time of the duchening (Berachos 55b; Shulchan Aruch, Orach Chayim 130:1). It should be noted that the text of the prayer quoted by the Gemara is different from that quoted in the majority of siddurim. The Gemara cites the following text for this prayer:

“Master of the World, I am yours and my dreams are yours. I dreamed a dream that I do not understand its meaning — whether it is something I have dreamt about myself or it is something that my friends dreamt about me or whether it is something that I dreamt about them. If these dreams are indeed good, strengthen them like the dreams of Yosef. However, if the dreams need to be healed, heal them as Moshe healed the bitters waters of Marah, as Miriam was healed of her tzaraas, as Chizkiyahu was healed of his illness and as the waters of Yericho were healed by Elisha. Just as You changed the curse of Bilaam to a blessing, so, too, change all my dreams for the good.” According to the opinion of the Vilna Gaon, this prayer should be recited at the end of all three blessings, rather than reciting the “Yehi Ratzon” that is printed in most siddurim (Mishnah Berurah 130:5).

One should complete the prayer at the moment that the congregation answers Amen to the blessings of Birchas Kohanim. This prayer can be recited not only when one is uncertain of the interpretation of the dream, but even when one knows that the dream bodes evil (Mishnah Berurah 130:4).

Among Ashkenazim in chutz la’aretz, where the practice is to duchen only on Yom Tov, the custom is to recite this prayer every time one hears the duchening, because there is a likelihood that since the last Yom Tov one had a dream that requires interpretation (Mishnah Berurah 130:1). This prayer is not recited on Shabbos, unless one had a bad dream that night (Mishnah Berurah 130:4). In Eretz Yisrael, where the custom is to duchen daily, the practice among Ashkenazim is to recite the prayer for dreams at the last of the three berachos of the duchening at musaf on Yom Tov, when it does not fall on a Shabbos. The custom is that the kohanim chant the last word of the brachah on these Yom Tov days to allow people sufficient time to recite this prayer.

In all places, the custom among Sefardim is not to recite the prayer unless the person had such a dream.

As a kohen, myself, I find duchening to be the most beautiful of mitzvos. We are, indeed, so fortunate to have a commandment to bless our fellow Jews, the children of Our Creator. The nusach of the brachah is also worth noting. “Levarach es amo Yisrael b’ahava” — to bless His nation Israel with love. The blessings of a kohen must flow from a heart full of love for the Jews that he is privileged to bless.

Who Is the True Redeemer?

Discussing the mitzvah of pidyon haben is certainly appropriate to this week’s parsha—I therefore bring you…

Who is the True Redeemer?

Question #1: Deadbeat dad

Mrs. Gerusha* calls me with the following question:

“I am a divorced baalas teshuvah with two young children, a son and a daughter. My son never had a pidyon haben, and my ex-husband is an agnostic who is not interested in participating. Am I required to perform the pidyon haben for my twelve-year-old son, and what is the procedure if I do?”

Question #2: Who’s on first?

Mrs. Gerusha’s son asks: “May I perform my pidyon haben at my bar mitzvah?”

Question #3: Late bloomer

The Schwartz family discovered observant Judaism sometime after their oldest son was born some twenty years ago. Recently, they realized that they have never fulfilled the mitzvah of pidyon haben. The question is: Who should perform the mitzvah now, Mr. Schwartz or his yeshivah-bachur oldest son? In other words, if a father did not redeem his firstborn son who is now an adult, may he still fulfill the mitzvah?

Answer

This week’s parshah includes one of the places where the Torah mentions the mitzvah of pidyon haben, the redeeming of a firstborn son. This mitzvah is usually fulfilled by a father giving to a kohen five silver coins, each of which is worth a sela (plural sela’im), the cost established by the Torah to fulfill this mitzvah. This mitzvah is required only if the firstborn is not a kohen or a levi, his mother is not the daughter of either a kohen or a levi, and his delivery was a natural birth, in which case he is called a petter rechem.

The Gemara (Kiddushin 29a) derives that a father is required to fulfill the mitzvah of redeeming his firstborn son.

There are three obvious situations in which the father would not perform this mitzvah:

The father died before he performed the mitzvah.
The father is not Jewish or is unknown.
The father did not fulfill the mitzvah, although he could have.

Regardless as to why the father does not perform the mitzvah, the mother has no responsibility to do so. Rather, upon becoming bar mitzvah, the firstborn son himself becomes obligated in the mitzvah.

Thus, we can already examine Mrs. Gerusha’s question concerning her son who never had a pidyon haben, and whose father is unwilling to perform the mitzvah. She asked whether she is required to perform the pidyon haben.

Certainly, Mrs. Gerusha is not required to redeem her son.

May she?

When Mrs. Gerusha was told that she is not required to perform pidyon haben, she immediately asked whether she may perform the mitzvah. Answering this question requires an introduction.

Pidyon haben vs. bris

Pidyon haben is similar to the mitzvah of bris milah in that the father is the individual primarily responsible to fulfill it. However, there is a major difference between the two mitzvos: Should the father not fulfill the mitzvah of bris milah, the rest of the Jewish people become obligated to perform the bris milah on the uncircumsized child. The Gemara calls this “beis din being obligated in the mitzvah,” since they are the representative of the Jewish people.

On the other hand, in the case of pidyon haben, the community is not obligated to redeem this child. Should there be no father or should he fail to redeem his son, the mitzvah becomes the child’s to perform upon his becoming old enough to do so.

May they redeem?

Granted that no one is obligated to perform pidyon haben other than a father of the firstborn or, upon becoming of age, the firstborn son himself, may someone else give money to a kohen for the purposes of pidyon haben and thereby redeem the firstborn?

This question is discussed by several halachic authorities, the Taz (Yoreh Deah 305:11) concluding that someone other than the father cannot perform the redemption on behalf of a minor, whereas most authorities rule that a third party may redeem the firstborn (Nekudas Hakesef and Gra ad loc; Machaneh Efrayim, Hilchos Zechiyah #7; see also Ketzos Hachoshen 243:7 and Milu’ei Choshen ad locum). Thus, although Mrs. Gerusha is not required to redeem her son, according to most authorities, should she choose to do so, the redemption is effective.

When the bechor redeems himself, he recites a different version of the text than a father does when he redeems his son. When a father redeems his son, he recites Asher kideshanu bemitzvosav vetzivanu al pidyon haben [He Who commanded us in His commandments concerning redeeming the son] (Shulchan Aruch, Yoreh Deah 305:10). According to the Shulchan Aruch and the prevalent practice among Sefardim, when the bechor redeems himself, since he is not redeeming his son he closes the brocha with the words lifdos habechor (to redeem the firstborn). According to the Rema and the prevalent Ashkenazic custom, he concludes with the words al pidyon habechor (concerning redeeming the firstborn).

Early responsum

One of our opening questions asked whether a father is still responsible to observe the mitzvah of pidyon haben after his son becomes old enough to fulfill the mitzvah himself. This very question is discussed by the Rashba (Shu’t Harashba 2:321). The rabbonim of the city of Toledo, Spain, asked the Rashba (who lived his entire life in Barcelona) to rule on a situation in which a father had not redeemed his son shortly after the latter’s birth. Many years have passed, and the son is an adult who is interested in performing the mitzvah himself. The father has decided that he would like now to do the mitzvah, and contends that it is his mitzvah to perform. On the other hand, the son feels that once he became an adult the mitzvah is entirely his and no longer his father’s. Does the father still have a requirement to perform the mitzvah? Assuming that he does, is there a preference which of the two, the father or the son, performs the mitzvah?

The Toledo contention

The rabbonim of Toledo were unsure what to do, and therefore decided to have both the father and the son give the required amount for pidyon haben to the kohen, to be certain that the mitzvah was performed correctly. Since they were undecided as to whether the father or the son was observing the mitzvah, they ruled that neither one should recite the brocha prior to giving the kohen the redemption money. Since the kohen had now received more money than he was entitled to according to the halachah, he was required to return the difference. (The responsum does not say to whom the money was returned.)

Rashba’s ruling

Although the pidyon had already been performed according to their ruling, the rabbonim of Toledo asked the Rashba whether their decision was accurate. The Rashba explained that the rabbonim of Toledo had not ruled correctly. The mitzvah of a father to redeem his son never ends, even when the son becomes old enough to be required to perform his own redemption. Since both father and son are now required to perform the redemption, yet only one pidyon is required, whoever performs it first fulfills the mitzvah and should recite the brocha prior to giving the kohen the redemption money. The Rashba concludes that if the father and son ask which of them should preferably perform the mitzvah, the answer is the father. Therefore, in the case of Toledo, the son could have performed the mitzvah and recited the brochos (including shehecheyanu, see below), but, preferably, the father should have performed the mitzvah, in which case he would recite the brochos.

At this point, we can return to our opening question #3: The Schwartz family joined observant Judaism some time after their oldest son was born, some twenty years ago. Recently, they realized that they had never fulfilled the mitzvah of pidyon haben. The question is: Who should perform the mitzvah now, Mr. Schwartz, or his yeshivah-bachur oldest son? In other words, if a father did not redeem his firstborn son who is now an adult, may he still fulfill the mitzvah?

The answer is that either the father or the son can perform the mitzvah, and whoever does so recites the brochos. If they ask who should preferably perform the mitzvah, the answer is that it should be Mr. Schwartz.

Coercion

Should a father fail to perform the mitzvah of pidyon haben, the beis din has the halachic right and responsibility to coerce him to perform his mitzvah. What is the law if the father did not perform the mitzvah when his son was young, and now the son is old enough to perform the mitzvah himself? Does beis din coerce one of them to perform the mitzvah, and if it does, which one, the father or the son?

The Rashba rules that if the son is in a financial position to perform the mitzvah, we coerce the son, rather than the father, to do so. If the son is not in a financial position to perform the mitzvah himself, beis din should force the father.

Redeeming yourself

What is the procedure for performing pidyon haben when the adult son redeems himself?

Let us first review the basic steps of a regular pidyon haben performed by a father to redeem his recently born son.

A festive meal is celebrated in honor of the pidyon haben, in order to call attention to the mitzvah. After hamotzi has been recited, the father brings the bechor to the kohen, who is seated at a place of honor. The father declares to the kohen that the baby is a firstborn son, whom he is required to redeem.

The kohen then responds with the famous and enigmatic thousand-year old question: “Mai ba’is tefei?” “Which do you prefer? Would you rather have your child or the five silver coins, sela’im, of pidyon?”

The father responds that he would prefer his son, and that he has the money on hand with which to redeem his son. The father then recites two brochos: Asher kideshanu bemitzvosav vetzivanu al pidyon haben for the mitzvah of pidyon haben, and Shehecheyanu (Rema, Yoreh Deah 305:10). He then places the silver coins in the kohen’s hand. The kohen recites the verses of the birchas Kohanim and other words of blessing over the head of the bechor. The procedure is completed by the kohen reciting a brocha on a cup of wine and drinking it.

Redeeming oneself

An early halachic authority, the Maharshal, adapts the choreography of a standard pidyon haben to the situation in which a firstborn is redeeming himself because his father died before fulfilling the mitzvah:

The adult firstborn begins the proceedings by reciting the following declaration: “I am a firstborn petter rechem (see above) and Hashem commanded us to redeem the firstborn. Unfortunately, my father died before he redeemed me, and I remain with the responsibility to redeem myself… I am now prepared to fulfill the mitzvah of Hashem.”

The kohen then tells the firstborn, “Would you prefer your own body or the five sela’im that you are required to pay as your redemption money?” To which the firstborn answers: “I want to keep myself, and here are the five sela’im coins.” The firstborn then recites two brochos, the brocha on the mitzvah of pidyon haben and the brocha of Shehecheyanu (Yam shel Shlomoh, Kiddushin 1:53).

At this point, we can complete our answer to Mrs. Gerusha’s opening inquiry: “I am a divorced baalas teshuvah with two young children, a son and a daughter. My son never had a pidyon haben, and my ex-husband is an agnostic who is not interested in participating. Am I required to perform the pidyon haben for my twelve-year-old son, and what is the procedure if I do?”

As we mentioned above, the halachah is that a mother is not required to perform the mitzvah of pidyon haben. If the father refuses to perform the mitzvah, the mitzvah will devolve upon the firstborn son, upon his becoming obligated in mitzvos. In this latter case, the choreography would follow the Maharshal’s approach, making a slight modification in the text to accommodate the difference in circumstances – the firstborn’s father is alive.

Should the mother perform the pidyon on behalf of her son, as we mentioned above, most authorities consider the redemption valid, and the son will not be obligated in this mitzvah upon his becoming an adult. If she followed this approach, she should modify the pidyon haben choreography to note that she is redeeming her son. Personally, if I were asked what to do, I would advise them to wait until the son is old enough to perform his own pidyon, and to follow the text mentioned by the Maharshal, with the appropriate change reflecting the fact that the father is still alive.

When to redeem himself?

If the son is performing his own pidyon haben, when should he do it?

Since he becomes obligated in this mitzvah upon his bar mitzvah, he should perform the pidyon haben as soon as he has money with which to perform it. He is not required to beg or borrow money in order to do so, but may wait until he has earned the money or received it as a present. Other people may give him money so that he can perform the pidyon haben. Anyone may pay for the festive pidyon haben seudah.

This leads us to a new question: Since they would be celebrating a special meal on the occasion of his turning bar mitzvah, should they make the pidyon haben at that meal, or have two separate festive meals, one for the pidyon and the other for the bar mitzvah?

Combining semachos

Is it permitted for the firstborn bar mitzvah to combine his bar mitzvah celebration party with the pidyon haben? The background to this question is as follows:

The Mishnah (Moed Katan 8b) prohibits getting married on Chol Hamoed. The Gemara presents several disputing reasons for this ruling. One approach is that one should not overlap two festivities. Does this concern apply should the firstborn son celebrate his pidyon haben and his bar mitzvah at the same banquet – that this joint celebration deters from the celebration of one of the mitzvos?

Pidyon haben on Chol Hamoed

Tosafos (Moed Katan 8b s.v. Mipenei) discusses whether the prohibition against marrying on Chol Hamoed extends to other celebrations, such as a pidyon haben. At first, he considers that this might be prohibited, but he concludes that the Mishnah’s prohibition includes only getting married on Chol Hamoed, but not pidyon haben and other celebrations that are not as festive as is a wedding. This decision is followed by the Shulchan Aruch (Orach Chayim 546:4) and others (Birchei Yosef, Yoreh Deah 305:18), but not by all authorities (see Rema, Yoreh Deah, 305:11). Similarly, we rule that a bris, a sheva brachos or a bar mitzvah may be celebrated on Chol Hamoed (Shulchan Aruch, Orach Chayim 546:3, 4), and that the only combined celebration prohibited is a wedding on Chol Hamoed.

Thus, it is perfectly fine for the son to do his pidyon haben at his bar mitzvah celebration. As a matter of fact, I would strongly encourage that he do so if he has the money with which to fulfill the mitzvah, since this accomplishes that fulfilling the mitzvah of pidyon haben is not delayed, and that it is observed at a festive occasion.

Thus we can now answer Mrs. Gerusha’s son’s question that we quoted at the beginning of this article: “May I perform my pidyon haben at my bar mitzvah?”

The answer is that he certainly may, and, since it is the first opportunity for the son to do so, it is, indeed, an exemplary time to perform the mitzvah.

Conclusion

Since the time of makas bechoros, all first-born males have a certain kedusha. This special sanctity should have resulted in their taking a special role in the service in the Beis Hamikdash. However, because the bechorim were involved in worshipping the eigel hazahav, they lost their unique status and could no longer perform any special role there. As a result, the bechor must undergo a redemption ceremony to make amends – which is accomplished by giving money to a kohen as a means of “redeeming” his kedusha.

* All names have been changed to protect people’s privacy.

The True Saga of Charles, the “Kohen” – or Am I a Kohen?

In honor of Parshas Korach, in which kohanim feature so significantly, I bring you the following:

Imagine the splendor of the Beis HaMikdash, with the kohanim wearing their pure white robes and turbans and their techeiles belts, racing to fulfill the wondrous avodah that brings the Jewish people close to Hashem! Not to mention the ornate garments of the kohen gadol, so beautiful that a gentile who heard about them was inspired to become Jewish, simply for the opportunity to wear them (Shabbos 31a)!

Indeed, the magnificent role of the kohen, not only for klal Yisrael, but also for the entire world, was not lost on Charles, the hero of the following story.

All his life, even before he was at all observant, Charles had known that he was a kohen. He knew that as a kohen he was entitled to the first aliyah when the Torah is read. When Charles became observant, he began duchening. He then learned about receiving pidyon haben money and began to envision himself wearing kohen’s garb and serving in the Beis HaMikdash. And so, Charles made it his hobby to study the laws that affect kohanim and particularly to know the gifts that they receive.

Charles knew about many of the honoraria a kohen receives today, and also began studying about what kohanim will receive when the Beis HaMikdash will be rebuilt. Here are some of the laws he learned:

CHALLAH

Instead of the small challah portion that we separate from our doughs and burn nowadays, when the Beis HaMikdash is rebuilt, we will separate a larger piece that we will then give to the kohen, for him and his family to eat in a state of taharah.

TERUMAH

Similarly, the terumah portion separated on all produce grown in Eretz Yisrael will be larger and given to the kohen, in addition to terumas maaser which constitutes 1% of the crop. Both the kohanim and their family members may eat terumah and terumas maaser when they are tahorim.

Before eating terumah or challah, a kohen will recite a special bracha, “Asher kideshanu bikedushaso shel aharon vetzivanu al achilas terumah,” Blessed are You, Hashem our G-d, King of the Universe, who sanctified us with the holiness of Aharon and commanded us concerning the eating of terumah (see Rambam, Hil. Terumos 15:22). The daughter of a Levi or Yisrael who married a kohen may also eat terumah and challah; however, the poskim debate whether she recites this bracha before eating terumah. Some contend that she does not, since she is not “sanctified with the holiness of Aharon,” but married into it. Her ability to eat terumah is technically a gift to her husband, since he may now provide for her with his terumah (Yeshu’os Malko, Hil. Bikkurim 1:2). Others maintain that she does recite a bracha, although they are uncertain whether she recites the text of the bracha with the words kideshanu bikedushaso shel aharon, that you have sanctified us with the holiness of Aharon, since she herself does not have this kedusha; perhaps she recites a bracha with a different text (Mishnah Rishonah, Terumos 8:1).

BIKKURIM

When the Beis HaMikdash is rebuilt, each farmer will bring there the first fruits of the seven species for which Eretz Yisrael is famous (wheat, barley, grapes, figs, pomegranates, olives and dates) and make a lengthy declaration of thanks to Hashem for all the help He has given us. These fruits (grains are also fruits) will become the property of the kohanim with the same sanctity as challah and terumah. The kohen will recite a bracha before eating them (Rambam, Hil. Bikkurim 1:2).

BECHOR

Male firstborn of kosher animals owned by Jews are sanctified as korbanos. Because, unfortunately, we still have no Beis HaMikdash, the sanctity of these korbanos creates a serious quandary, since using the animal violates a major Torah prohibition. To avoid this problem, we sell part of the pregnant heifer, ewe or nanny goat to a gentile before she births, which guarantees that the calf, lamb, or kid has no kedusha.

When the Beis HaMikdash is rebuilt, we will no longer be permitted to sell part of the mother animal to a gentile since this would be evading the mitzvah. Instead, the firstborn will be given to the kohen, who will bring it as a korban. He and his family receive the meat from the animal, which they eat while tahorim in Yerushalayim.

By the way, the halachic borders of Yerushalayim affecting these and several other mitzvos are not determined by its current municipal borders, nor are they determined by the current “Old City” walls. The Ottomans built the current Old City walls which exclude parts of the original city that has kedushas Yerushalayim and include areas that were not part of the city. The Mishnah (Shavuos 14a) instructs what one must do in order to expand the city of Yerushalayim from a halachic perspective, and, until the Sanhedrin performs this procedure, one may perform the mitzvos that require being in Yerushalayim only in places that had kedusha in the time of the Second Beis HaMikdash (see Keilim 1:8).

PETTER CHAMOR

A firstborn male donkey owned by a Jew is exchanged for a sheep or goat that is given to a kohen (Shemos 13:13; Mishnah Bechoros 9a). Instead of giving the kohen a sheep or goat, the owner may elect instead to give the firstborn donkey itself to a kohen or give the kohen something of equal value to the firstborn donkey. Exchanging for a sheep or goat is to save the owner money should he want to – he may exchange a more expensive donkey for a newborn lamb or kid which are worth far less.

Why is there no mitzvah to redeem the firstborn of other non-kosher species as well? The Gemara (Bechoros 5b) explains that this mitzvah is a reward for the donkey for helping transport Bnei Yisrael and their property out of Egypt. Thus, this mitzvah teaches hakaras hatov, the importance of gratitude. If the Torah requires honoring an animal as a reward for appreciating and reciprocating the assistance we received from its ancestors thousands of years ago, how much more must we appreciate and reciprocate the good we receive and have received from our parents, teachers, and spouses!

MATANOS

Every time a Jew slaughters a kosher domestic animal, a kohen receives three sections of the animal: the upper right foreleg (this includes half the shoulder roasts); the mandible (cheek and jaw) area including the tongue; and the animal’s abomasum, its fourth stomach, which is highly useful in food production. Why does the Torah give the kohen these three specific parts? Rav Hirsch (in his commentary to Devarim 18:1) explains that they represent the Jew’s desire that the kohen provide Torah guidance to the Jew’s actions (represented by the right forearm), his speech, and his pleasure (represented by the stomach that digests).

THE MEAT AND THE HIDES FROM KORBANOS

The kohanim also receive the hides and meat from most korbanos. The location where the kohen eats this meat and whether his family shares it with him depend on the sanctity of the korban; kodoshei kodoshim are eaten only by male kohanim and only in the chatzeir (courtyard) of the Beis HaMikdash, whereas kodoshim kalim may be eaten by the kohen’s family anywhere in the Biblical city of Yerushalayim.

REISHIS HAGEIZ – First Fleece

The kohanim also receive a portion from the first shearing of a Yisrael’s wool.

In total, the kohanim receive 24 special gifts (Rambam, Hilchos Bikkurim, Chapter 1) that are meant to remind us of the kohen’s special kedusha and to enable him to spend his time bringing the Jewish people close to Hashem by teaching them His Torah.

This all leads to the following question. If the Torah wanted to provide the kohen with a proper stipend so that he could devote himself to teaching Torah and other aspects of kedusha, why didn’t it simply provide him with a proper salary? Why provide him with all these small gifts, which add up to a respectful livelihood?

The answer is that the Torah’s method requires the Yisrael to interact with the kohen constantly. Since the kohen is a person whose role is to exude holiness, this constant interaction with kohanim influences the rest of Klal Yisrael, increasing its kedusha.

BACK TO CHARLES, OUR KOHEN!

By now, Charles had learned all of these wonderful aspects about being a kohen and this excited him greatly. He also knew about a kohen’s special obligations. Divinely bestowed gifts are accompanied by Torah responsibilities. For example, a kohen may not marry a divorcee or a convert, and may not come into contact with a human corpse. Charles also did not make the common error of thinking that adopting a non-Jewish baby automatically makes the child Jewish. He knew that the baby must be halachically converted, and that a converted girl may not later marry a kohen. Thus, an adopted girl would usually be ineligible to marry a kohen.

Charles also learned that a kohen may not marry a woman whose father is not Jewish (Shulchan Aruch Even HaEzer 4:5, 19; cf. Beis Shmuel and Beis Meir, who disagree) and that if a kohen marries a woman forbidden to him, he damages the pedigree of his offspring from this union forever. His wife and children from this union became tarnished and are called chalalim, defiled descendants of a kohen. Not only are the daughters of chalalim forbidden to marry kohanim, but also their sons’ daughters and the sons’ sons’ daughters etc..

PIDYON HABEN FOR A CHALAL’S SON

Charles’ rebbe, who was a kohen, told him how he once performed pidyon haben for a baby whose paternal grandfather was a kohen. “How could this be?” Charles asked him.

“The baby’s grandfather had unfortunately married a divorcee,” the rebbe explained, “and the father performing the pidyon haben was the son of this marriage.”

“Prior to performing the pidyon haben for this first-born son,” his rebbe had continued, “I met with the parents privately — very sincere people. I explained to them that any daughters they have in the future may not marry kohanim, although they may marry anyone else. I also told them that when their newborn son has daughters, they also will not be able to marry kohanim. It pained me tremendously to share this information with this sincere young baal teshuvah couple, but I had a halachic responsibility to make sure that they knew this.”

WERE THEY REALLY KOHANIM?

Charles had studied the unfortunate story recorded in the Books of Ezra and Nechemiah about certain kohen families who wanted to bring korbanos in the second Beis HaMikdash. He knew that Nechemiah rebuffed them because of concerns about their pedigree (Ezra 2:61-63; Nechemiah 7:63-65). The Gemara states that, although Nechemiah permitted them to eat terumah and to duchen, he prohibited them from eating korbanos or serving in the Beis HaMikdash (Kesubos 24b).

He remembered saying to his rebbe, “Either they are kohanim or they are not! If they are not valid kohanim, then they cannot eat terumah or duchen either. If they can eat terumah and duchen, then why can’t they offer korbanos and serve in the Beis HaMikdash?”

His rebbe replied: “The Gemara explains that there is a halachic difference between kohanim meyuchasim, who can prove their pedigree in Beis Din, and kohanei chazakah, kohanim who cannot prove their pedigree, but have a family tradition that they are kohanim. In the time of the Beis HaMikdash only a kohen who could prove the purity of his lineage could serve” (Rambam, Hilchos Issurei Biyah 20:2; Kaftor VaFerach Vol. 1, page 101 in the 5757 edition. Note that some poskim contend that this requirement was not essential, see Shu’t Chasam Sofer, Yoreh Deah #236 and writings of Rav Tzvi Hersh Kalisher).

Charles was stunned, “If only a kohen who can prove his kehunah may offer korbanos, and there are no surviving kohanim who can prove their kehunah, how will we ever again be able to bring korbanos?”

“The Rambam (Hilchos Melachim 12:3) explains that Moshiach will use his Ruach HaKodesh to determine who is indeed a kosher kohen who may serve in the Beis HaMikdash,” his rebbe told him.

IS THE REALLY A KOHEN?

When Charles was in Yeshiva, one of his baal teshuvah friends, Mordechai, had the following shaylah: “My grandfather, who was not observant and often boastful, often claimed that we are kohanim, but I have no verification of this. I even had someone check the cemetery where my great-grandfather was buried, and there is no mention of his being a kohen on his tombstone. Should I be duchening, and may I marry a woman prohibited to a kohen?”

Mordechai was told that he was not a kohen, and should treat himself as a Yisrael concerning all halachos. Since most Jews are Yisraelim, someone who is uncertain of his pedigree should assume that he is a Yisrael. Furthermore, Mordechai was told that there was no point for him to check tombstones unless one knew that a halachically knowledgeable and reliable person had authorized the inscription. One cannot assume that the person who authorized the data on a tombstone had any halachic authority, and therefore its information carries no credibility.

Mordechai’s shaylah got Charles thinking. All his life, even before he was at all observant, he had known that he was a kohen. Why did he assume so when no one had been observant in his father’s family for several generations? When Charles became observant, he began duchening. He envisioned himself wearing kohen’s garb and serving in the Beis HaMikdash. Now he had to try to trace his kohanic origins. Were they authentic? He remembered his grandfather, a proud, although not a halachically observant or knowledgeable, Jew, saying that they were kohanim.

Many times Charles tried to trace the lineage, but each of his leads led nowhere.

Meanwhile, Charles discovered that being a kohen meant more than avoiding cemeteries and funerals; he discovered that there were streets, parks and highways to avoid, and that even going to museums was frequently problematic. Flying to and from Eretz Yisrael required advanced research to make sure that there were no meisim on the plane and that it did not fly over cemeteries. Touring Israel also required advanced planning and certain sites, such as the Arizal’s mikveh, Kever Rabbi Shimon bar Yochai and Kever Rachel were completely off-limits.

CHARLES STARTS SHIDDUCHIN

When the time came for Charles to begin shidduchin, he could postpone no longer. He knew he had to ask a shaylah, yet he procrastinated for a long time before he asked what to do. Finally, he went to a prominent gadol and asked him.

After hearing Charles’ story, the gadol asked him if he had continued to duchen even after he realized that there was no real evidence of his being a kohen. Charles answered that he had continued to duchen. The gadol then asked him why he continued duchening if he was convinced that there was no evidence that he was a kohen. Charles answered because he does not believe his grandfather would fabricate a story that they were kohanim. The gadol then ruled that since Charles truly believed he was a kohen, and had acted as such, he must treat himself as a kohen lechumrah, a term Charles had never heard before.

Afterwards, Charles’ rebbe explained to him the rationale of the gadol’s psak. By continuing to duchen despite the lack of evidence to that affect, Charles had declared that he believed himself to be a kohen. Halacha calls this shavyei anafshei chaticha de’isura, one who has made items prohibited for himself by his actions or declarations. Since only a kohen may duchen, when Charles duchened he was declaring that he considered himself a kohen, which obligated him to adhere to all the strictures of being a kohen. Thus, he may not marry any woman forbidden to a kohen or make himself tamei to a corpse.

However, since Charles has no evidence that he is a kohen, he is not entitled to the benefits of that noble status. He may not receive the money for pidyon haben, duchen, or receive the first aliyah to the Torah.

Charles stopped duchening and began informing people that they should call him to the Torah as a Yisrael. Upon the advice of his rebbe, he decided not to advertise his unusual halachic status, but would discreetly assume that his shidduchin should only be with women who could marry a kohen. He does not attend funerals and is careful not to travel on roads where trees overhang cemeteries.

The gadol had told Charles that his unique halachic status applies only to himself, but not to his children in the future. Since they never duchened, they never declared that they believe themselves to be kohanim, and are considered Yisraelim regarding all halachos. Charles truly believes he is a kohen, although he has no evidence to sustain this belief. His sons have no reasons to believe that they are kohanim since they never knew his grandfather.

Charles now uses his Hebrew name, has in the interim become a big talmid chacham, and now has adult children who do not know why their father never seems to have time to go to a funeral. They never noticed that “Charles” rarely goes to museums and is always tremendously curious about kohen-related issues. Aside from his rebbe and his wife, few people know any more about Charles’ unique status. He might even be the fellow who was just called up for shlishi!

Does Mrs. Cohen Go to the Head of the Line?

You are waiting patiently in the checkout line at “The Kosher Grocer,” together with three other women — the Rebbitzen of your shul, the widowed Rebbitzen of a famous Rosh Yeshiva, and Mrs. Cohen, who is the wife of a kohen at your shul. Do you have a mitzvah or a requirement to step aside and allow either of the Rebbitzens or the kohen’s wife to go first?

Most people would feel that this is simply a question of good midos, while others might argue that inviting them to go first is allowing others to take unfair advantage. Who would realize that this situation involves halachic issues?

Please circle what you consider the correct answer:

(1) No halachic requirement to give away your turn.

(2) Allow one rebbitzen to go first, but not both.

(3) The kohen’s wife goes first.

(4) First the Shul Rebbitzen, then the Rosh Yeshiva’s Rebbitzen, then Mrs. Cohen, and then me.

(5) First the Rosh Yeshiva’s Rebbitzen, then the Shul Rebbitzen, then Mrs. Cohen, and then me.

(6) First the Shul Rebbitzen, then the Rosh Yeshiva’s Rebbitzen, then me, and then Mrs. Cohen.

Although you may “luck out” and choose the correct answer, surely it is better to determine the halachic issues involved in this multiple choice question.

The issues that need resolving include:

1. Should a talmid chacham be placed at the head of the line?

2. Should a kohen be placed at the head of the line?

3. If the answer to either question is yes, does the same mitzvah apply to the talmid chacham’s or the kohen’s wife?

4. Should we place the widow of a talmid chacham (or a kohen) at the head of the line?

5. Is there any restriction as to when these honorees should be placed at the head of the line?

We will begin our discussion with the Gemara (Nedarim 62a) that says: “A talmid chacham who appears in Beis Din as a litigant may say, ‘I am a talmid chacham. My case should be heard first.’” The Gemara proves this from the pasuk (Shmuel II 8:18) that refers to the sons of Dovid as kohanim when, of course, they were actually from the shevet of Yehudah and not kohanim at all. Thus, the pasuk means that because they were talmidei chachamim, they were treated with (at least) the respect due to kohanim (Ran to Nedarim ad loc.). The Gemara adds that just as we honor a kohen to “open first” (liftoach rishon), bless first, and choose a good portion first, so we give a talmid chacham these same honors (Gittin 59b, Moed Katan 28b).

IS THIS HUMBLE?

But isn’t it arrogant for a talmid chacham to tell people that he is a Torah scholar and therefore entitled to certain rights?

Actually, this act is not gaavah, conceit, but rather allows people the opportunity to perform a mitzvah. However, if people will not provide him with the kavod they are required to, one should not mention that he is a talmid chacham. In general, a talmid chacham has the right to be mocheil (forgive) his special rights as a talmid chacham (Kiddushin 32a).

OPEN FIRST

What does the Gemara mean when it says that “the kohen (or talmid chacham) should “open first?” This means that he should be the first speaker, whether in divrei torah or at a meeting, that he should make the bracha on the meal first (Rashi, Gittin 59b), make kiddush for everyone (Mishnah Berurah 201:12), and lead the benching (Rashi, Moed Katan 28b; Ran and other Rishonim, Nedarim 62b). (Even though the kohen is usually honored, there is one exception — it is recommended that the host himself make hamotzi, since he is thereby able to apportion food generously [Berachos 46a].) Also, if the talmid chacham or kohen is poor, he is entitled to choose the best available portion of tzedakah or maaser given to the poor (Tosafos, Gittin 59b). According to some opinions, if one dissolves a partnership and divides the property into two similar shares, one should offer the kohen or talmid chacham the choice between the two shares (see Rashi, Gittin 59b). However, the accepted approach is that this last situation is not regarded as a fulfillment of the mitzvah (Tosafos ad loc.). Nevertheless, when a group of friends are together, they should offer the talmid chacham or kohen the opportunity of taking the best portion.

We see from the above Gemara that honoring a talmid chacham includes listening to his din torah first, and that he does not have to wait for other people. In fact, even if the talmid chacham arrives in beis din when a different din torah is already underway, we interrupt that din torah and give precedence to the talmid chacham’s din torah (Rama, Choshen Mishpat 15:1). Consequently, if you want your din torah handled very efficiently, don’t schedule it in a beis din that might be handling the dinei torah of talmidei chachamim! All this makes it obvious that a talmid chacham’s groceries should be “checked out” at the grocery first.

MISPLACED INDIGNITY

But won’t people be upset when a talmid chacham jumps the line?

They should not – because, on the contrary, they should be proud to perform the mitzvah. Anyone aware of the honor due to talmidei chachamim would beg a talmid chacham to go ahead.

WHAT IF IT COSTS ME MONEY?

Must I honor the talmid chacham even if it costs me money? How much must I forgo to fulfill this mitzvah?

In general, the responsibility of giving kavod requires expenditure of time, but not money (see Gemara Kiddushin 32a). Therefore, if giving up my place on line will cost me money, I am not required to do so. Thus, if I will have to put more money in the parking meter in order to allow for the time delay, I am not required to give up my spot. However if it only costs me time, I am required to give up my place. (Some contemporary poskim contend that one is not required to give up time to fulfill the mitzvah of kavod. However, I believe the halachic sources demonstrate otherwise.)

WHO QUALIFIES AS A TALMID CHACHAM?

Someone who understands most of Shas and the halachic authorities and is able to discuss these issues intelligently is considered a talmid chacham (Rama, Yoreh Deah 243:2).

HOW CAN I DETERMINE IF HE IS A TALMID CHACHAM?

What if I am unable to test a person and know if he meets the requirements of being a talmid chacham?

If the Torah-knowledgeable members of his community view him as a talmid chacham, I should treat him as such.

NON-JEW IN LINE

What happens if a gentile customer is behind me in the cashier’s line, and a talmid chacham is waiting at the back of the line?

A non-Jew is not required to honor a talmid chacham — it is not one of his mitzvos. Thus one cannot ask the talmid chacham to go ahead if this will delay a non-Jew. You may offer the talmid chacham to switch places with you, if his order will take about the same or less time to check out, since this will not affect the gentile.

THE REBBITZEN

So far we have demonstrated that the mitzvah of showing respect to a talmid chacham includes placing him ahead on a grocery checkout line. Does this mitzvah extend to his rebbitzen — that is, must one also show honor to the wife of a talmid chacham?

The halacha is that “eishes chaver k’chaver,” the wife of a talmid chacham should be treated with the same respect given to her husband (Gemara Shavuos 30b). This is because one fulfills the mitzvah of respecting a talmid chacham by showing his wife respect, and therefore one should stand up in her presence, just as one rises before her husband (Gemara Shavuos 30b), seat her in a place of respect, and one should certainly place her ahead in a line.

IN THE DOCTOR’S OFFICE

I have an appointment at the doctor and discover that the appointment immediately after mine is that of a talmid chacham or the wife of a talmid chacham. Must I allow them to go first?

I am indeed required to encourage them to go first, unless I lose money out of pocket to do so.

THE WIDOW OF A TALMID CHACHAM

What about the widow of a talmid chacham? Does the respect due a talmid chacham include rising for his wife after he has passed on? Early poskim rule that although no Torah mitzvah of respecting a talmid chacham applies here, there is still a rabbinic mitzvah to honor her (Ramban, quoted by Ran to Shavuos 30b).

Therefore, I should show kavod for the widow of a talmid chacham and rise in her presence. But, if I have to choose between giving honor to the wife of a living talmid chacham and to the widow of a late talmid chacham, the wife of the living talmid chacham comes first. However, if the widow will realize that she is receiving less honor because her husband is deceased, one should give her extra respect to avoid hurting the feelings of a widow.

HONORING A KOHEN

Earlier, I mentioned the Gemara that one should treat a kohen with special honor. How much honor must a kohen receive, relative to a talmid chacham?

A kohen who is not a talmid chacham is not entitled to as much honor as a talmid chacham. This halacha has several ramifications; for example, whereas one must rise before a talmid chacham, there is no requirement to do so before a kohen. If a yisrael is a Torah scholar and the kohen is not, the Torah scholar receives the greater honor. (The one exception is the first aliyah to the Torah, where, in order to maintain peace and decorum, a kohen receives the first aliyah, even in the presence of a yisrael who is a greater scholar.)

Based on the above, when serving guests at a meal, one should first serve the talmidei chachamim, then their wives, and then the kohanim before serving the rest of the guests. This means the host should instruct those serving to serve these honored guests first. If the host did not instruct his wife to serve the kohen first, then his wife must serve her husband first (since her obligation to her husband comes before the kohen).

If the yisrael is a greater talmid chacham than the kohen, but the kohen is also a talmid chacham, some rule that one is required to give the kohen the greater honor (Shach, Yoreh Deah 246:14). Others rule that it is preferable, but not obligatory, to give the kohen the greater honor (Rama, Orach Chayim 167:14 and Mishnah Berurah 201:12).

A MINOR KOHEN

Is there any mitzvah to honor a kohen who is a minor?

The early poskim dispute this question, some contending that since a child cannot perform the service in the Beis HaMikdash there is no requirement to honor him. On the other hand, other poskim contend that since he will eventually be able to perform this service, he should receive special honor.

This dispute has very interesting and commonly met ramifications. What happens if there is no adult kohen in shul, but there is a kohen who is not yet bar mitzvah? If the mitzvah of vikidashto, honoring a kohen, applies to a minor, then we should give the minor kohen the first aliyah! This is indeed the opinion of the Maharit (Shu”t #145). However, the prevalent practice is that there is no mitzvah of vikidashto for a minor (Magen Avraham 282:6; cf. Sdei Chemed 3:188).

WHAT ABOUT MRS. COHEN?

Does Mrs. Cohen deserve special treatment because her husband is a kohen? According to halacha, although the wife of a talmid chacham is treated with the respect due to a talmid chacham, there is no requirement to honor the wife of a kohen because of her husband’s special status. This is because the kohen’s wife cannot perform the service in the Beis HaMikdash.

We can now begin to answer the questions raised at the beginning of our article:

1-2. Does a talmid chacham and/or his wife go to the head of the line?

The answer is that they both have this right, and that it is a mitzvah for others to place them ahead in the line. Thus, if you are in a doctor’s office and you see that the patient after you is a talmid chacham or the wife or widow of a talmid chacham, you should encourage them to switch slots with you. As we mentioned above, you are not required to do this if it will result in an out-of-pocket loss.

4. Does a Kohen have a right to go the head of the line?

Indeed he does, and one should encourage this.

5. Does a Kohen’s wife have the right to go to the head of the line?

As we mentioned above, the kohen’s wife does not receive special honors because of his status.

At this point, I invite you to one again examine the multiple choice question included at the beginning of this article. You are waiting patiently in the checkout line at “The Kosher Grocer,” together with three other women — the Rebbitzen of your shul, the widowed Rebbitzen of a famous Rosh Yeshiva, and Mrs. Cohen, wife of a kohen at your shul. Please circle what you consider the correct answer:

(1) No halachic requirement to give away your turn.

(2) Allow one rebbitzen to go first, but not both.

(3) The kohen’s wife goes first.

(4) First the Shul Rebbitzen, then the Rosh Yeshiva’s Rebbitzen, then Mrs. Cohen, and then me.

(5) First the Rosh Yeshiva’s Rebbitzen, then the Shul Rebbitzen, then Mrs. Cohen, and then me.

(6) First the Shul Rebbitzen, then the Rosh Yeshiva’s Rebbitzen, then me, and then Mrs. Cohen.

Did you choose correctly? The correct answer is (6). Can you explain why?

Should a Kohen Be Afraid of Confederate Ghosts?

When Yaakov Avinu asks his sons not to bury him in Egypt, Rashi notes three reasons for this request:

(1) The earth of Egypt would turn to lice during the Ten Plagues.

(2) To avoid the suffering of rolling to Eretz Yisroel at the time of techiyas hameisim.

(3) To prevent the Egyptians from making him into an idol.

On the other hand, although Yosef and his brothers undoubtedly had the same motives to be buried in Eretz Yisroel, they could not arrange their immediate burials there and were interred in Egypt until the Jews left. This is a classic example of the exhumation and reburial of meisim (human remains).

Our article will discuss a case where meisim were supposed to have been reburied, but apparently were not, creating a number of halachic concerns.

THE HISTORICAL BACKGROUND

In a major metropolis, one section of the city included a large cemetery. About 140 years ago, this cemetery was closed to new burials and later, many of its graves were exhumed. Subsequently, the city constructed residential and commercial areas, city streets, a major park, a zoo, and museums atop the seventy-two acres of the cemetery.

Here is the historical background: In 5603/1843, the city designated a sixty acre area as a cemetery and three years later, a Jewish organization paid $45 to purchase part of this land as its own cemetery. Four years later, in 5610/1850, the city purchased an adjacent area of twelve more acres to expand the cemetery, so that it now encompassed 72 acres.

However, in the late 1850’s, a prominent physician requested that the cemetery be closed because of concern that it was too close to the city’s water supply and that it might spread disease. Until that point, this cemetery was the only authorized one in the city, and included a large “potters’ field,” or area for burying the destitute and the unidentified.

Two years later, an area immediately north of the cemetery was set aside as a park. During this time, the city gradually ceased using the cemetery. However, since the area was near a large prisoner-of-war camp housing captured Confederate soldiers, an estimated 4,000 Confederates who died in custody were interred in the cemetery’s potters’ field. At one time, the cemetery held an estimated 35,000 graves, including the resting place for those who made the ultimate sacrifice for the Confederacy.

In 5626/1866 the cemetery was officially closed, partly due to the physician’s health concerns. By now, the Civil War was over and the surviving Confederate captives had been repatriated. The city officially decided to move the remains buried in this cemetery to other locations. Over the next thirty years there are numerous scattered reports of moving the graves to new locations. Despite attempts to remove graves, a conservative speculation is that the majority of the remains were never removed.

Fast forward to the modern era: In 5722/1962, workers digging a foundation for the zoo’s new barn discovered a skeleton and a casket. They reburied the casket in situ and poured the foundation right on top. During 5758/1998, workers constructing a parking lot in the area discovered 81 skeletons and an iron casket containing a cadaver. There are at least nineteen more reports of human bones found in the disused cemetery’s location.

Thus, the shaylah is whether a Kohen may walk through the streets and businesses of this old-time burial ground.

Steve Katz lives and works in this city and is well aware of the history of this park and its environs. His boss assigns him to attend a business meeting at a hotel that is located in the area that was originally the cemetery. Since Steve is a Kohen, may he attend the meeting? If he cannot, how will he explain this to his gentile employer?

Steve made an appointment to discuss the problem with his Rav, whom he knows will explain to him all the aspects of the shaylah.

WILL THE TUMAH RISE FROM THE GROUND?

Rav Goldberg begins by explaining some of the halachic background. When human remains are buried, under most circumstances the tumah rises directly above and contaminates the area above it. If a building is constructed directly above a grave, tumah may spread throughout that building, although sometimes it may spread only through the bottom floor and possibly only into the room constructed directly above the grave. We will have to leave for another time the discussion as to what factors affect how far tumah will spread through the structure.

If there is no building, tree or overhang over the gravesite, one becomes tamei only if one walks or stands directly above the gravesite.

SAFEK TUMAH BIRSHUS HARABIM

“However, the specific situation that you are asking about may be more lenient,” explains the Rav, “because of a concept called safek tumah birshus harabim, sefeiko tahor, which means, literally, that if there is doubt about whether something in a public area became tamei, the halacha is that it remains tahor (see Nazir 57a). Notwithstanding our usual assumption that safek de’oraysa lechumra, we rule strictly on doubts concerning Torah prohibitions, we rule leniently concerning a doubt of matters of tumah when the question occurred in a “public” area, a term we will define shortly.

There is also an inverse principle that safek tumah birshus hayachid, sefeiko tamei, which means that if there is doubt whether someone or something contracted tumah when they were in a private area, they are considered tamei.

WHAT IS PUBLIC?

For the purposes of these two principles, “public” is defined as an area to which at least three people have ready access, and “private” means a place that is accessible to less than three people. Thus, someone who discovers that he may have become tamei while walking down the street remains tahor. However, if he discovers that he may have become tamei while he was in a private area he is tamei. (All of these laws are derived from pesukim.)

“I know that there is more to explain,” interjects Steve, “but it would appear that one could have a situation in which one may enter a building, but one may not use the bathrooms, have a private office, or have a private interview.”

“It is certainly true,” responded the sage, “that someone entering a public building and discovering that he may have become tamei while there, would remain tahor, whereas if he entered a similar private area, he would be considered tamei. However, there are other factors to consider before we reach a definitive ruling.”

MAY THE KOHEN ENTER?

At this point, Steve raised a sophisticated point:

“I understand that someone who entered this area would afterwards be considered tahor. But may I enter the area knowing that I may be contaminating my kehunah?”

The Rav explained: “You are asking whether a Kohen may lichatchilah rely on the principle of safek tumah birshus harabim, or whether this principle is applied only after the fact. In general, one must be stringent when there is concern that one may be violating a Torah prohibition, and it is prohibited min hatorah for a Kohen to contact tumah from a meis. Thus, one could assume that a Kohen should not enter an area where there is a possibility of tumah. However, many authorities rule leniently when dealing with a safek tumah birshus harabim. They contend that the Torah only prohibited a Kohen from becoming tamei, but not from entering a situation where he will be ruled as tahor (Tosafos, Kesubos 28b s.v. Beis; Shu”t Rashba #83; Binas Odom, Klal 157; Pischei Teshuvah 369:4, quoting Shu”t Chasam Sofer, Yoreh Deah; Minchas Chinuch 263:13 s.v. Vehinei). Thus, a Kohen could enter any publicly available area, including an office or residential building constructed over the city’s defunct cemetery. However, he could not enter an area restricted to less than three people.

“Others contend that since the Torah prohibits a Kohen from being in contact with a meis, he is similarly prohibited, because of safek de’oraysah lechumra, to be in a place where he might be exposed to a meis” (Tzelach, Berachos 19b; Achiezer 3:1:1, 3:65:7; Kovetz Shiurim; Teshuvos VeHanhagos).

STATUS QUO

Steve raised another point:

“In fact, we know that this area was once a cemetery, and we are fairly certain that not all the graves were exhumed. Does this make matters worse?”

“You are raising a very insightful question. Even assuming that a Kohen can rely on the principle of safek tumah bireshus harabim, this principle might not apply here since we know that this area was once a cemetery, and we are fairly certain that some graves remain. Thus we have a chazakah, status quo, that the area was once tamei meis, and we are uncertain whether the tumah was removed. In such a situation, perhaps the principle of safek tumah birshus harabim does not apply, since this rule may apply only where there is no status quo. (In Mikvaos 2:2, this seems to be the subject of a dispute between Tannayim. See also Tosafos, Niddah 2a s.v. Vehillel.)

“Nevertheless, in our particular case, we have some basis to be lenient. Although this entire area was once set aside as a cemetery, it is very unlikely that it became filled wall-to-wall with graves, and also, only the places directly above the graves were tamei. Thus, any place within the cemetery was tamei because of doubt, not because of certainty.

JEWISH VERSUS NON-JEWISH GRAVES

“There is another reason to permit entering the hotel for your meeting. People who researched the area have ascertained the exact location of the original Jewish cemetery, which is now the location of the ball fields of a local park. Thus, although I would advise you and your sons not to play ball on those particular diamonds, we can be more lenient regarding entering the hotel constructed in the area, as I will explain.”

Steve replied: “But how can we be certain that no Jews were ever buried in the non-Jewish cemetery. There definitely were some Jewish soldiers in the Confederate army, and it is likely that some Jews were buried in the non-Jewish cemetery or in the potters’ field.”

His Rav replied: “You are correct that some Jews were probably buried in the non-Jewish parts of the cemetery. Nevertheless, since we do not know this for certain, we may work with the assumption that there are no Jews there.”

“But even a non-Jewish body conveys tumah, so I still have a problem.”

“This depends on whether remains of a gentile convey tumas ohel, that is by being under the same being under the roof, cover, or overhang that is at least three inches (a tefach) wide.

DO THE REMAINS OF A NON-JEW CONVEY TUMAH?

“Although virtually all authorities agree that remains of a non-Jew convey tumah through touching and carrying, the Gemara cites the opinion of Rabbi Shimon that remains of a non-Jew do not convey tumas ohel (Yevamos 61a). The Rishonim dispute whether this position is held universally, and, in addition, whether this is the way we rule. It appears that most Rishonim conclude that a Kohen may enter a room containing the remains of a gentile because they follow Rabbi Shimon’s position. Others contend that we do not follow Rabbi Shimon’s position and that tumah of a gentile does spread through ohel. The Shulchan Aruch considers the question as unresolved and advises a Kohen not to walk over the graves of non-Jews (Yoreh Deah 372:2).”

At this point, Steve commented. “It seems from what you are saying that it is not a good idea for a Kohen to enter buildings in this area, but one may enter if there is a pressing reason” (see Shu”t Avnei Nezer, Yoreh Deah #470).

The Rav responded: “This is the conclusion of many authorities. Some are even more lenient. One famous responsum permits a Kohen to enter a field that he purchased without realizing that it contained an unmarked gentile cemetery. The author permits this by combining two different leniencies, each of which is somewhat questionable. One leniency is that perhaps a gentile does not spread tumah through ohel, and the other leniency is that some early authorities contend that once a Kohen becomes tamei, he is not forbidden from making himself tamei again (Raavad, Hil. Nezirus 5:15, as explained by Mishneh LaMelech, Hil. Aveil 3:1). Although we do not rule like this last opinion, the Avnei Nezer contends that one can combine both of these ideas to permit the Kohen who purchased this field without realizing the problem to utilize his purchase (Shu”t Avnei Nezer, Yoreh Deah #466).”

“This case of the Avnei Nezer sounds like a much more difficult situation in which to rule leniently than mine,” noted Steve. “After all, in his case there was no attempt to clear out the cemetery.”

“You are correct. For this reason, I would certainly not find fault with someone who chose to be lenient and indiscriminately enter the area that was only a gentile cemetery, relying on the ruling that gentile remains do not contaminate through ohel, and on the principle of safek tumah birshus harabim.”

“It still seems that one should avoid the ball fields that are located right over the old Jewish cemetery.”

“I would certainly advise this,” closed the Rabbi.

So Steve does not need to explain to his boss that he cannot attend business meetings at the hotel because of lost Confederate ghosts.

Although there may be little reason to panic over such issues, as we have discussed, one should be aware that it is not infrequent to discover old cemeteries beneath modern cities. Cemeteries, particularly Jewish ones, were always consecrated on sites outside the city limits in order to avoid the obvious problems of tumah affecting kohanim. Unfortunately, when Jews were exiled, the whereabouts of many cemeteries became forgotten, and in addition, as cities expand, they include areas that were originally outside the city’s limits that often include earlier cemeteries. Thus, these problems will continue to prevail. In each case, a posek must be consulted to find out whether, and to what extent, a Kohen need be concerned.

WHY IS IT PROHIBITED FOR A KOHEN TO COME IN CONTACT WITH A MEIS?

It is beyond our understanding to explain why Hashem commanded us to keep each specific mitzvah. However, we can and should attempt to glean a taste of Hashem’s mitzvos in order to appreciate and grow from the experience, including understanding why the Torah bans a Kohen from having contact with a meis under normal circumstances.

Rav Hirsch, in his commentary on Vayikra 21:5, provides a beautiful educational insight into this mitzvah. In most religions, fear of death is a major “selling point” of the religion. Thus, the role of the priest is most important when dealing with the dying and the dead.

However, Torah emphasizes how to live like a Jew — to study Torah, perform the mitzvos, and develop ourselves in Hashem’s image. To emphasize that Hashem provided us with the blueprint for perfect living, the Torah excludes the Kohen, who is the nation’s teacher, from involvement with death. Thus, the Kohen’s role is to imbue us with the knowledge and enthusiasm to truly live!