Timely Responsa Writeup Av.docx

Rosh Chodesh Av: R. Betzalel Stern on Picking and Choosing Poskim Posek-shopping is a natural instinct; we want to be told our desired course of action is also an or the appropriate one. Shu”t Betzel HaChochmah 6;29, dated Rosh Chodesh Menachem Av 5747 (1987) takes up the issue, how to choose a posek without predetermining the answer we get. A Question About Asking Questions The questioner lived in a city with two rabbinic authorities, known to differ on issues of mar’ot, of how and when spotting and other experiences of blood-flow relate to whether a woman becomes a niddah (or stays one if she’s already in the middle of the experience). In one instance, a questioner showed a piece of cloth with a spot on it to one of the two, who ruled it not evidence of being a niddah. The question then showed it to the other [itself an inappropriate act, as we’ll discuss], who held the spot was blood (and the woman is or continues to be a niddah]. Can the man and his wife listen to the lenient decisor? If not, would they be allowed to were the question one of Rabbinic law? Asking Two People Pesachim 52b shows R. Stern a first example of someone asking two different rabbis their opinion. R. Safra left Israel and then realized he had some shemittah wine in his possession. He asked his two travelling companions (R. Huna the son of R. Ika and R. Kahana) whether they had heard from R. Avahu (their teacher) whether he followed R. Shimon b. Elazar’s ruling, which obligated one who brings shemittah produce from outside of Israel to return it to Israel and burn it there. They gave him conflicting answers, and he decided to follow the lenient report of R. Huna, since he knew R. Huna to be particularly assiduous about learning from his teacher, R. Avahu. R. Yosef was displeased with the incident, and called R. Safra a fulfillment of Hoshe’a 4;12, ‘ami be-‘etzo yishal ve-maklo yagid lo, my nation asks its wood and its staff will tell it [what it should do in various situations; the person is finding the answer he wants, not looking for the truth]. Maklo, R. Yosef says, can be read as “kol hamekeil lo, whoever is more lenient with him.” Rashi and Ra”h explained R. Yosef’s criticism. R. Avahu had the right to rule leniently, since the unnamed view in a baraita (and therefore presumably the majority) adopts that position. R. Huna the son of R. Ika reported what he heard from his teacher, which was his right, but R. Safra had conflicting reports about how to rule on this issue. Picking the convenient one struck R. Yosef as maklo yagid lo, taking the lenient view from whatever source. Tzelach (better known as Noda Bi-Yehuda) thought the discussion in Pesachim showed the question of whether to burn shemittah produce taken out of Israel must be a question of Torah law, since we do follow the lenient view on issues of Rabbinic law. How would R. Safra have defended himself? R. Stern says R. Safra tells us—he followed R. Huna because R. Huna was known to be very careful in reporting what his teacher said. Since R. Avahu was a reputable authority, R. Safra had the right to follow his view, and R. Huna was a qualified reporter of those views. [Of course, R. Kahana reported another view; I think R. Stern is saying R. Safra had good reason to believe R. Huna was accurately reporting what R. Avahu said at some point, and was therefore allowed to follow it.] When There’s Still Permissible Choice R. Avahu was choosing sides in a debate which started with tannaim, rabbis of the time of the Mishnah, but he had the right to do so. Any tannaitic debate where no specific ruling was articulated left amoraim the right to rule as seemed correct to them. That’s even true of the debates between Beit Shammai and Beit Hillel. While we today assume we (almost) always follow Beit Hillel, Eruvin 6b allows following either. The Gemara there criticizes those who always adopt the lenient view of two (such a person is a rasha, an evildoer) or the stringent (a kesil, a fool). On the next page, R. Shizvi permits following a leniency of Beit Shammai on one issue and of Beit Hillel on another as long as the two rulings do not contradict. Until there’s been a decision, the amora can use his own reasoning to figure out which view seems more correct, and as long as his various choices do not contradict, he’s not an example of maklo yagid lo, leniency-shopping. Picking Among Decisors Theoretically, each of us would have the same right, to survey the various halachic opinions and choose the one which seems more correct to us, as long as the two do not contradict and no formal decision process has closed the issue. Unfortunately, most of us are not competent halachic authorities (as the amoraim were), so we cannot assume we know how to distinguish more from less correct. If we choose anyway, or go to one rabbi on one kind of issue and another on another, we might not be the evildoer of whom Eruvin spoke, but it would be maklo yagid lo. The case before R. Stern is a bit better, because we don’t know how each decisor will rule on specific cases, we only know their tendencies. We might bring a question to the rabbi known to be lenient and he’ll surprise us with a stringent ruling or vice verse. Too, the more lenient rabbi might have invested more in the study of this set of halachot, making him a sufficiently great expert to protect us from the accusation of leniency shopping. R. Stern says Eruvin 7a permits going to the greater scholar even on a matter of Torah law, regardless of his lenient tendencies. He knows Sha”ch to Yoreh De’ah 242 disagreed with his reading of Eruvin. Sha”ch thought only Rashba (of the rishonim) applied this idea to Torah law, Rambam and Semag limited it to Rabbinic law. But Rema, Choshen Mishpat 25;2, followed Rashba’s view, as did Peri Megadim in his general introduction to his commentary, and Aruch HaShulchan 242;63. Since our case does not yet have actual conflicting rulings, even Sha”ch might have agreed. Halachah or Facts? The questioner had also worried about whether niddah questions constitute issues of metzi’ut, of physical facts, which would seem to rule out following the lenient decisor, since he might be contradicting simple physical facts, such as that the stain came from blood. R. Stern points out, however, thinks the phrasing misconstrues what’s going on. The two decisors agree on the color of the stain, they disagree about how halachah requires us to respond to such a colored stain [I am not as certain as he is of the facts—I think sometimes one person sees a stain as red and the other as brown, and they would have agreed about the ruling were they to have agreed on the color. On the other hand, the questioner seems to assume the point of color is to verify whether the stain started with blood, where it seems to me the issue is dealt with more technically—x color makes her a niddah, y color does not, and we do not have to think about where it started]. Etiquette of Halachic Questioning The last point R. Stern makes is to reprove the questioner for not telling the second rabbi he had already shown the stain to the first, and the ruling the first one gave. Rema Yoreh De’ah 242;31 allows bringing a question to multiple authorities, as long as the later ones are told what the earlier one(s) said. Aside from changing how the second one might choose to respond (he might choose to contact the first one and discuss it before answering, for example), it also stops him from contradicting the first on issues of shikkul ha-da’at, judgment calls (a blatant error by the first one has to be dealt with; but the second one’s tendency to rule differently in a gray area would not permit him to contravene the first, and he is required not to). To summarize (as R. Stern does), people have the right to choose either of two reputable halachic authorities to be their overall halachic decisor, regardless of their general tendencies towards leniency or stringency. There’s an argument to be made to allow bringing all of one type of question to one of the two, and another kind of topic to the other (since we do not know for sure ahead of time how that decisor will rule); on matters of Torah law, however, it would seem there’s some issue of leniency-shopping in this latter conduct. Unless the lenient decisor has some advantage over the stringent one, such as particular expertise in that topic area. The rules just stated are for those of us who are not competent halachic authorities in our own right. A competent Torah scholar has every right to investigate an issue and rule on disputes that have not yet been firmly decided one way or other, as long as his lenient rulings do not place him in self-contradiction [R. Stern does not elaborate, but he means such as ruling like Beit Hillel or Beit Shammai before a principle was laid down; today, that would likely include not ruling against Shulchan Aruch, but might include deciding about current issues on which even greater Torah scholars were still in disagreement]. As long as we’re not shaping halachah in our own image, are searching for a valid reading of the truth of Torah, we’re not running afoul of the derogated maklo yagid lo.  2 Av: Chatam Sofer on Inheriting Rabbinic Positions On the second of Av, 5580 (1820), Chatam Sofer 1 Orach Chayim 12 adjudicates a dispute about rabbinic succession. I hope I’m not being too gossipy in noting that Chatam Sofer makes a point of saying that he’s writing from where he’s gone for the better air (his summer residence, basically). Many of his summer repsonsa are written from such locations, sometimes with the apology that that’s why he doesn’t have his full library with him. The rabbi of an unnamed town wanted his son, who was worthy of the job, to take over after him. One wealthy member of the community objected, the dispute got nasty, and some outside rabbis intervened to try to help bring peace. These rabbis were writing to the Chatam Sofer, claiming that the two sides had decided to listen to him, and indicating their view that the son should clearly get the job, since he was qualified, and communal positions are inherited in Judaism, as long as the heir is qualified. Treading Carefully as a Judge Chatam Sofer expresses hesitations about weighing in. First, he hasn’t heard the other side, and the question stipulates facts with which the opponent might disagree, such as the son’s being able to handle the job well. Second, ordinary procedure would be for the litigants to contact him, not some external group of rabbis who, some might argue, were meddling [he says it only slightly more politely than that]. And if, in fact, the authorities of that community wanted Chatam Sofer’s view, they would generally contact the authorities in his area, who would pass along the request. So as not to refuse them completely, he’ll share his thoughts [implied is that it should not be seen as his definitive view, since he didn’t hear both sides]. The Standards to Inherit Kingship Rambam in Hilchot Melachim 1;7 establishes the hereditary passage of kingship and any other appointed position. To understand that fully, we have to realize that while Ketubbot 103b speaks of the monarchy being hereditary, Rosh HaShanah 2b [working off the Mishnah that speaks of the first of Nisan as a New Year for kings] speaks of the appointment and anointing of a king, son of a king, which doesn’t seem necessary if it’s an inheritance. Chatam Sofer’s explanation is that it’s not as hereditary as for non-Jewish kings, where the heir gets the throne no matter what [and like possessions pass to heirs]. With Jewish kings, it’s that as long as the putative heir meets minimum standards, he gets the position even if there are more qualified people out there. But it’s not automatic. [This is an important idea to which we don’t always pay attention: there are often many more people qualified for a position or program than there are spots to give out; while one option is to search for the best people, there might be occasions when there’s value in giving it to people who are qualified but not necessarily the absolute best. Certainly, affirmative action programs make that claim—since minorities have been discriminated against, let’s give available slots to minority candidates as long as they’re qualified, since that will help redress an historical imbalance and injustice.] I think it’s a view that would be helpful in many more places than we currently use it; Chatam Sofer is saying the monarchy is one such place, where we’d be willing to take a less than the best candidate because he fills another desideratum, continuing the hereditary line of succession. In that way of looking at it, even a crown prince needs anointing, the nation’s agreement that he does, in fact, meet the requirements for the job. Once that’s done, inheritance is an applicable word for what happened, which is why Ketubbot would speak of it that way. Starting a Chain or Continuing It He’d already had the kernel of that idea in his gilyon haShas, the notes he took on the Gemara as he studied [others had their gilyonei haShas published, most famously Chatam Sofer’s father-in-law—who was the same age, basically, since there was a large age gap between Chatam Sofer and his wife (it was a second marriage for each)—R. Akiva Eiger]. There, he had responded to a problem raised by Be’er Sheva [Rabbi Yissachar Dov ben Yisrael Lezer Parnass Eilenburg, born in Posen, Poland, ca. 1550, and died in Austerlitz, Moravia, in 1623; Be’er Sheva is a well-respected Talmudic commentary], who had wondered how Rechav’am could follow his father Shlomo in the monarchy, since his mother was an Ammonite convet. For all that tradition had it that she converted properly, there still had to be better candidates, those who were more fully Jewish. Baba Kamma 88a said that the choice of a king should be mi-muvchar she-be-achecha, the best among our brethren [that’s an inference from the same verse, mi-kerev achecha, from among your brethren, that is understood to say that being descended from converts is an issue for kings]. Chatam Sofer’s answer was that that need was at the start of the process. The first of a line to hold the throne had to be the best available candidate (David HaMelech). Once the line was started (with the promise from Hashem that it would go to his sons after him), heirs only had to be good enough. Rechav’am, regardless of his convert mother, was qualified. When Megillah 13b speaks of Heaven decreeing that a position of greatness will go to a man’s descendants, Chatam Sofer argues, the decree is that those descendants will be good enough to inherit it. If they become arrogant, the Gemara says, they won’t keep the job in their lineage, which Chatam Sofer interprets as meaning that Hashem will arrange it that the descendants aren’t qualified. Part of what sets the promise to David apart from any other kings the Jewish people have had is that Hashem was promising that one of his descendants would always be qualified, which should mean that the throne stays within the Davidic line. Applying It to Other Positions Rashba, in a responsum, said that even if a father wasn’t qualified but had a son who was, the son should take priority over outside candidates, because his assessment of communal custom is that communities take sons to replace fathers, such as to be chazzan. Chatam Sofer is puzzled by his language, since Rambam sounds like all communal appointments are done this way, so why does Rashba speak as if he’s reporting a custom? In addition, Rashba had mentioned that this was true of Kohanim Gedolim, High Priests, as if they were a special iteration of the rule, for reasons Chatam Sofer doesn’t originally understand. To answer, he starts with Yoma 72b, which finds a verse to say that the High Priesthood is hereditary, surprising given the Sifri’s having already used the verses regarding a king to make a blanket rule for all communal appointments. In addition, the role of the High Priest chosen to accompany the Jews to war [it can be a separate appointment from the one who served in the Beit HaMikdash] is explicitly not hereditary, which doesn’t fit Chatam Sofer’s current model. He answers that there’s a difference between positions of authority, such as kings, judges, police officers, and those of sanctity, such as High Priests. In the latter, the hereditary role is less clear, which is why Rashba refers to custom regarding chazzanim; those shuls treated a chazzan as a parallel position to Kohen Gadol, and therefore hereditary. The Rabbinate Is Not Hereditary All these factors—that we need a separate verse regarding Kohen Gadol, that a mashuach milchamah, appointed as part of the war effort, was not incluced, and Rashba’s thinking that the extension to chazzan was a matter of custom-- convinced Maharashdam (cited by Magen Avraham) that Rashba would not apply the hereditary rule to rabbinic positions, teaching Torah, and ruling on halachic issues. To explain why the Mishnah implies that such positions were hereditary, such as the descendants of Hillel occupying the nesi’ut of the Sanhedrin, Rema mi-Fanu (also in Magen Avraham), said that it wasn’t the Torah authority that was heredited, it was the political power. At the time, the head of the Sanhedrin was semi-monarchical, as shown by Horayot 11b, where Rebbe is told that he’s not considered the supreme head of the Jewish people for certain sacrificial purposes, because there’s also a Resh Galuta in Bavel. The latter was clearly a political position, showing that Rebbe’s position also had a political component, and it was that which was hereditary. To Chatam Sofer, that explains why Rebbe’s son Gamliel succeeded him, despite his son Shim’on’s being wiser. Gamliel was more of a yerei chet, one who feared sin, the more necessary qualification for positions of authority, which is what was being handed down. Giving the Rabbinate to a Son is the Community’s Choice Getting back to the succession case at hand, Chatam Sofer says it all depends on the community. If they don’t want the son, he cannot claim it as an inheritance. If the community agreed, even if only to appease their current rabbi, that’s binding and the wealthy man who was opposing the appointment should stand down, even if he is a greater Torah scholar (or his favored candidate—in the responsum, it sounds like this person himself was, and wanted the job himself). We have other examples of more worthy candidates yielding to those who had some other quality that made them the better choice. R. Yehoshu’a and R. Akiva, it seems clear, were more advanced Torah scholars than the eighteen year old R. Elazar b. Azaryah, yet the academy chose the younger man for various reasons and the two older scholars accepted that decision. In general, Chatam Sofer says, the rabbi does not have to be the greatest Torah scholar, he has to be a qualified Torah scholar whom the community finds the best choice. In a post-script, he notes that Moshe’s sons did not inherit his position [in the responsum, it’s clear that Chatam Sofer sees this as inheriting a Torah leadership position; had I been able to ask him a question, I would have wondered whether tradition didn’t see Moshe as also being a king, and certainly saw Yehoshu’a as more primarily a monarch than a Torah leader. That’s not the way Chatam Sofer sees it], while Eliezer did take over the High Priesthood from his father. Demonstrating exactly the distinction he had drawn, between the rabbinate and High Priesthood.  3 Av: R. Ovadya Yosef on Lie Detectors and Other Evidence in Beit Din Technology improves our lives in general, and new technology often raises the question of whether and when it can be used to aid halachic observance. Shu”t Yabia Omer 7; Choshen Mishpat 8, dated 11 Adar Aleph 5744 (1984) responds to an appeal to his Beit Din (the appeal is dated 3 Av 5743/1983, which is why it appears here); one claim in the appeal was that a new technology—lie detector tests—should be used to check a litigant’s story (the Beit Din was a sort of higher appeals court; Tzitz Eliezer sat on that same court, and deals with this case in 20;57 of that work; his verdict seems to have been the official one, since it was co-signed by R. Yosef and by R. Avraham Shapira, the Ashkenazic Chief Rabbi. I am using R. Yosef’s responsum because we more rarely have the opportunity to learn from him). A Messy Divorce The husband claimed that his wife had been unfaithful, and that he should therefore be allowed to divorce her with financial prejudice. She denied everything, and he wanted her to be required to pass a polygraph. The majority of the original Beit Din had rejected that idea, but a minority had accepted it, giving the husband fodder to think an appeal might work. The first point R. Yosef makes is that there is insufficient evidence to rule that she had had an affair. There was evidence that she had been secluded with another man, but R. Yosef reminds us of the accepted principle that we do not see that as enough to prohibit a woman to stay with her husband (and if we were legally convinced that she had had an affair, that would not be true). Rambam and Shulchan Aruch (Even HaEzer 11;1) had listed examples of ki’ur, behavior so profoundly violative of her marital bond that some authorities thought that was evidence enough of unfaithfulness that a court would require the couple to separate (perhaps as a matter of Rabbinic law, but perhaps at a Torah level). One of the examples was her entering a room with another man and their locking the doors. How was that different than yichud, seclusion, where we very clearly do not decide she’s prohibited? Seclusion as Opposed to Evidence of an Affair R. Akiva Eiger (Responsa, 99, p. 72b) already noted that yichud itself wasn’t on the list of ki’ur He proved that from the fact that Rambam (Laws of Marriage 24) ruled that proven acts of ki’ur allow the husband to divorce her without paying her ketubbah even if she has not been warned, whereas Sotah 25a makes clear that just the bare fact of being secluded with a man would not lead to consequences unless the husband had previously specifically warned her that such yichud would be an issue (yichud is a violation of dat Yehudit, Jewish practice). It’s also true the Rema 11;1 said that ki’ur or a lasting rumor about a woman was enough to require her husband to divorce her, whereas in 7;11, he had said that yichud is not enough, as he said in his responsa as well. So what’s the distinction? From the presentation so far, we might think that it’s the fact that they locked the door that makes it ki’ur, but R. Akiva Eiger points out that Rema in his responsum referred to the couple having been segurim be-yachad, closed up together, and that’s a case of yichud. He therefore suggests that the ki’ur example is where they walked in one right after the other and locked the door, giving the clear impression that they intended to meet here for a locked-in purpose. Yichud is where each of them entered for his/her own purpose, and they ended up locked in together. [As we’ll see when we get to her counterclaims, this turns much of what we might think of as ordinary yichud into ki’ur, and raises important questions of how married woman should conduct themselves when having confidential business meetings]. Beit Meir disagreed, and held that any time they’re locked in together, that’s ki’ur; yichud is only when the door wasn’t locked, but R. Akiva Eiger was not convinced by his arguments (and Otzar HaPoskim cites Ketav Sofer and Meishiv Davar (the Netziv) as agreeing with R. Akiva Eiger, that locking is not enough, they have to have entered in such a way as to signal nefarious intent). Common Custom Chazon Ish added a consideration, that ki’ur is where the couple acted in a way different than ordinary men and women do; in societies where men and women don’t regularly interact, any locked-in seclusion would be ki’ur, but he suggested that a better example would be where they went to an isolated location, where others don’t regularly show up, and also locked the door. It’s that kind of activity, which the judges will see as fuel for reasonable suspicion that they intended something they wanted to hide from all others, that would qualify as ki’ur. She denies all of this, and brought expert witnesses that the work of balancing the books that she was engaged in with this man (she seems to have been an accountant, and had to go over all the records of the business with this man) in fact required complete freedom from interruptions. R. Ovadya Yosef sees that as only partially supporting her case, but adds that the witnesses could not verify that they had entered one after another and then locked the door [this does seem a bit excessively legalistic—the distinction R. Akiva Eiger was offering seems to me to have been between where they go someplace together or happen to be in a locked place together. If we know they planned to be there, locked in together, that would seem to fit R. Eiger’s definition of ki’ur, unless we accept Chazon Ish’s idea that it has to give the impression of being for a sexual purpose. But that wasn’t what R. Yosef was saying]. Without complete proof, we would leave her with her original status of being permitted to her husband. The Polygraph and the Inadmissibility of Circumstantial Evidence R. Yosef’s first problem with the polygraph as halachic evidence is that experts in the field have told him that a polygraph requires a lot of interpretation by the technician who administers the test, based on the subject’s behavior, blood pressure, and changes in the markings made by the machine. That creates an umdena, a reasonable guess (or presumption, depending on how strong an umdena), about what’s going on, but is not proof, and not halachically admissible evidence. We wouldn’t render a verdict in a monetary case based solely on umdena, R. Yosef points out, let alone on these more serious issues. For example, Choshen Mishpat 408;2 accepts Rambam’s ruling that if we find a gored ox (dead) lying right near an ox that is a mu’ad, that is known to gore other oxen, that is still not enough to obligate the owner to pay. We need witnesses. Maharik ruled out even seemingly stronger evidence, citing Sanhedrin 37b, where R. Shim’on b. Shetach tells of seeing one man running after another, holding a knife, and they disappeared into a cave. By the time R. Shim’on caught up, the victim was bleeding to death from a knife wound, and the other man was standing over him holding a bloodied knife. Nonetheless, there was nothing to do, since we don’t accept circumstantial evidence; Maharik said that was true for civil cases as well, a view accepted by R. Yosef Karo in his responsa, Avkat Rochel, and Radvaz. What Kind of Umdena? The polygraph certainly doesn’t create that level of umdena. In addition, the technician is only one witness, and one witness for a matter of ki’ur doesn’t suffice, as Rema rules [he is clearly assuming that Rema was clarifying the universally accepted halachah, since he doesn’t feel bound by Ashkenazic rulings]. That means that even if the husband fully believes this (which in other circumstances obligates him to act as if that information is true), he need not pay attention to it here (so even if he’s fully convinced that ki’ur occurred, it does not create any obligation on him to separate from a wife he thinks acted that way). But it’s worse, because R. Ovadya Yosef doesn’t think this level of umdena would be actionable even in monetary cases, because it’s so susceptible to false results, based on the emotional state of the subject (who blood pressure might rise independent of whether s/he is telling the truth). This is especially true in a divorce case, since kashin gerushin, divorce is very hard, and some authorities think we should treat it with all the seriousness of capital cases. Accepting Less Than Proving Evidence R. Yosef notes that Rosh HaShanah 21b suggested that King Solomon wanted to judge the veracity of witnesses’ testimony based on his own insight, and was told he could not, that judicial procedures cannot be circumvented even by a valid other way to access the truth. On the other hand, R. Yosef has seen Shu”t Emek Halachah (by R. Yehoshu’a Baumol, my wife’s great-grandfather), who thought the polygraph provided enough evidence to require us to discount witnesses’ testimony. He supported that with a citation to Shevu’ot 30b, which says that if a judge suspects that a case is being falsely presented, he has to refuse to render the seemingly correct verdict. That must be where the judge doesn’t actually have evidence to back up his view, because the Gemara says that it’s a problem of mi-devar sheker tirchak, that the Torah obligates us to stay away from lying; if the judge could prove that the verdict would be incorrect, it’s a lot worse than that. So, too, the polygraph sufficed for R. Baumol to assume that we’d have to discard the witnesses’ testimony. R. Yosef doesn’t accept the comparison; he thinks that that Gemara only means that the judge then has to investigate further, not that he can rely on his intuition to reject the evidence in front of him (and so, too, could not rely on a polygraph to reject otherwise unimpeached testimony). He was more open to R. Baumol’s argument that passing a polygraph could free a defendant of the need for a shevu’at heseit, an oath that Chazal instituted (such as when a person is accused of owing someone else money, and denies it completely. By Torah law, the denial exempts him/her, but Chazal required an oath that s/he did not in fact owe any money). In the end, he rejects even that because it does not provide enough evidence. Should polygraphs improve, such that we have more reason to believe their results, he is open to revisiting the issue. Restoring Good Feelings Were we more confident of the findings of the polygraph, we might also ask the woman to take one, not because it will prove the issue (or justify divorcing her with financial prejudice), but because if she passed, it might help convince the husband to put aside his (false) presumptions, and to return to a happy married life. Since that’s not true, we cannot do that, and the matter has to proceed. But the husband’s appeal is rejected, and she was not told to take a polygraph.  4 Av: Klausenberger Rebbe on Kohanim Burying Relatives When halachah sets aside its usual rules to accommodate a particular situation, a question that often arises is whether that was dechuyah, whether the original rule is “pushed” aside, meaning it’s purely an acquiescence to necessity (and therefore should be used as minimally as possible), or hutrah, it is rendered permissible for this entire situation (which makes it less important to find ways to reduce the extent to which the original rule is being violated). Shu”t Divrei Yatziv, Yoreh De’ah 230, dated 4 Menachem Av 5733 (1973), deals with an example regarding kohanim burying close relatives. Ordinarily, male kohanim are prohibited from contact with those who have passed away, but the Torah says that that’s not true for their parents, spouses, siblings, or children. To what extent did the Torah mean that? How Shabbat Is Similar to Offering Sacrifices While Ritually Impure The question came up because someone had asked R. Halberstam about something his great-grandfather, the Sanzer Rebbe, had written, regarding a surprising comment of Kessef Mishneh (R. Yosef Karo’s, author of Shulchan Aruch, commentary on Rambam’s Mishneh Torah). Rambam ruled that Shabbat is dechuyah for the purpose of saving lives (which means that while saving lives, we should minimize violation of Shabbat, as long as it in no way affects the care of the person or people in danger). Kessef Mishneh wrote that the issue of dechuyah or hutrah in terms of Shabbat was linked to that same issue regarding tum’ah, (ritual impurity; at this point in the responsum, it sounds like he meant all tum’ah, including a kohen becoming tamei while burying a relative). That’s seems to fly in the face of Yoma 46b, which quotes Rava as ruling that Shabbat was hutrah while tum’ah was dechuyah, which decouples the two. The Sanzer Rebbe had defended Kessef Mishneh with a comment of Ramban in Torat Ha-Adam, that burying relatives requires becoming tamei, so it cannot be considered dichui. Wherever Torah law requires a certain act, it must be hutrah, fully permitted. (Torah law doesn’t require violating Shabbat to save lives, it requires saving lives. In some cases, we’ll need to violate Shabbat, so that can be dechuyah rather than hutrah). Rava’s comment differentiated where we offer a sacrifice on Shabbat, because the Torah said to, from where we offer one when the majority of the people are teme’im, which the Torah allowed. Once the Torah defined Shabbat as the appropriate time for a particular sacrifice, all activities necessary to that offering are completely allowed (the Torah never applied Shabbat prohibitions to that case). There’s no reason the people have to be tamei, though, so while the Torah anticipated that it could happen, and allowed offering certain sacrifices nonetheless, that’s a yielding to circumstance, not an expectation or desideratum. Illness Isn’t Necessary, But Is Death and Burial of Relatives? Kessef Mishneh’s comparison of an ill person to tum’ah now makes sense, because neither had to happen. The Torah yielded where those did arise, but only by pushing aside the original rules. The problem the questioner raised with that suggestion was that Rambam didn’t seem to accept Ramban’s explanation of when matters are hutrah, since Rambam speaks (Laws of Mourning 2;6 and 16) of the burial of relatives as nidcheit, pushed aside—it’s a marker of the importance the Torah gave to mourning, that it does push aside the prohibitions on kohanim becoming tamei. R. Halberstam compliments the question, especially since Obligation 37 of the Sefer HaMitzvot makes explicit that the kohen becoming tamei for a relative is a marker of the mourning. That would seem to say that it’s necessary for the kohen to do, and yet the Rambam uses the language of nidcheit, which shouldn’t be true according to the Sanzer Rebbe’s idea. R. Halberstam’s defense of his great-grandfather starts with the claim that the obligation to bury the deceased rests on all Jews. The Torah did identify relatives as the first ones who should be involved in this, such that Sanhedrin 46a-b (and other sources) can properly refer to malin et meto, a relative who leaves his deceased unburied. But where there are no relatives, for example, the obligation devolves upon all the residents of that city. When Multiple People Bear an Obligation Shu”t Maharam Mintz 44-5 quoted Ra’avan, who applied the rule of hakarov karov kodem, that the obligation to bury a relative moves down the line of relationships. It’s not only the seven relatives who have the prior obligation, if they aren’t around, whoever is the closest to the deceased is the one who should be taking responsibility for this mitzvah. Usefully for us, he proves that from the Torah’s requiring even kohanim to be involved in burying relatives. For all that that’s true, it’s still also true that there are other people around who also have an obligation to see to it that the deceased receive proper burial. That fact means that Rambam can see the need to become ritually impure to bury a relative as dechuyah (since, in theory, someone else could do it), whereas sacrifices that must occur on Shabbat have no other option at all. That leaves room to assume that Rambam did accept Ramban’s view, that hutrah happens wherever the Torah absolutely required an act. Here, while the Torah did require it, the existence of other options means to R. Halberstam that it can still be considered dechuyah (while still seeing Rambam as agreeing with Ramban’s idea). Another issue is that the burial isn’t for its own sake, it’s to express mourning (that’s how Rambam expresses it in the Sefer HaMitzvot and Mishneh Torah, that his involvement with the burial demonstrates the appropriate and necessary level of mourning). The burial isn’t the essential mitzvah, so it cannot be hutrah, it must be dechuyah. Why the Torah Commanded It Rambam’s language in the Sefer HaMitzvot is somewhat confusing, since he makes it sounds like the Torah commanded the kohanim to become tamei for fear they wouldn’t. But if it’s only dechuyah, why is that a fear at all? R. Halberstam answers that were the Torah to leave it as a reshut, a permissible way to express mourning (but one which a kohen could theoretically forego in favor of other ways of expressing that mourning), kohanim would then completely avoid such tum’ah, for fear that others would see them as being cavalier with tum’ah, and would use it to raise doubts about whether they were really kohanim (“no real kohen would insist on burying a relative himself, since he could have had others do it; it must be that he’s not really a kohen”). [R. Halberstam’s worry—which has plenty of basis in comments Chazal make in other contexts-- about how other Jews would speak of kohanim’s choices in burying and mourning relatives are a sad comment on society, how we cannot let others make choices, where the Torah allows them room to do so]. To forestall any of that concern, the Torah made it obligatory; but since it was for ancillary rather than essential reasons, R Rambam saw it as dechuyah. Non-Kohen Relatives Rambam and Ra’avad had disagreed (Laws of Mourning 2;6) as to whether a kohenet, a female member of the priestly tribe, also had to become tamei as part of burying and mourning relatives (Ra’avad saw certain Mishnaic sources as obligating her as well). Later Torah scholars read this debate as applying to all non-kohanim, that Rambam would have held there was no particular obligation on them to be involved in the burial of a relative, while Ra’avad (and Rashi in several places) would have held there was. R. Halberstam wants to be sure that we not misunderstand that discussion—Rambam would agree that non-kohanim relatives bear the primary responsibility for the burial of their deceased, it’s just that they need not necessarily be physically involved in the burial when there are sufficient others to do that. Ra’avad and Rashi understood that the act of becoming tamei, of being so involved in the burial that ritual impurity devolves on that person, is relevant to non-kohanim as well, is part of their expression of mourning over this relative’s passing. Nuances of What Is or Isn’t an Obligation Sha’agat Aryeh and Turei Even had both argued that Sukkah 25b offered support for Ra’avad’s view. R. Yitzchak in the Gemara says that the people who came to Moshe Rabbenu to ask for a second opportunity to offer the Pesach sacrifice, because they were teme’ei metim, ritually impure by virtue of contact with the deceased, were those who bore the bier of Yosef throughout the desert. They had not had time to become ritually pure before this sacrifice was offered, but are considered to have been involved with a met mitzvah. Ordinarily that term refers to a deceased person with no one else to bury him/her (and for which purpose any Jew must be involved, even a High Priest or a Nazir), but Rashi says that here the term is being used loosely, more akin to the need of a kohen to be involved in the burial of a relative. R. Halberstam says that Rashi had to say that, because the context of the discussion was deriving the principle that ha-osek ba-mitzvah patur min ha-mitzvah, that one performing a mitzvah is exempt from other mitzvot that then arise. Were Yosef to have been a literal met mitzvah, it might have been an exceptional circumstance that could not provide evidence of a general rule (since, as we said, met mitzvah breaks other rules). It’s not that Yosef was an actual met mitzvah, it’s that being involved with burial of the dead, even if there are others around who could do it, counts as a mitzvah as well, which works for Rambam, too, since he never said it doesn’t. And, R. Halberstam notes, his great-grandfather had already written that in his notes on Turei Even. Which shows us that he had indeed understood the Sanzer Rebbe’s explanation well, giving us greater understanding of when the Torah permits a usually prohibited act, and when it only pushes it aside in the face and force of circumstance.  5 Av: R. Moshe Feinstein on Educating the Daughter of a Conservative Rabbi Conservative or Reform Jews are fellow Jews and working together will often help all of us (such as in building the State of Israel). At the same time, they promote a vision of the religion, nation, and culture that tradition teaches is in strong contrast to what Hashem commanded. That tension came up in Shu”t Iggerot Moshe Yoreh Deah 5;38, dated 5 Av 5732 (1972), where R. Feinstein responded to the teacher of the daughter of a Conservative rabbi (then and now, I believe, many Conservative rabbis were and are connected enough to Torah and mitzvot that they want an education for their children they cannot secure in their own schools. For similar reasons, many Modern or Centrist Orthodox rabbis send their children to “right-wing” schools). Ripping the Opposition The educator was struggling with how to handle the young woman’s presence. He felt he had to expain to his students that Conservative rabbis were destroying or misrepresenting Torah and mitzvot, and had called such rabbis evildoers. Others have pointed out to him that if the daughter keeps having this negative experience, she might leave. His stubbornnesss is threatening to push her out of the school, denying her a proper Torah education. He counters that unless he makes clear what’s wrong with Conseervative Judaism, his students might see it as a legitimate option.  R. Feinstein suggests the teacher act wisely, speak about central assertions of Judaism, such as the belief in one Torah, given at Sinai through the agency of Moshe Rabbenu, with a written and oral component. He can point out that this is attested in the Talmud and later decisors of Jewish law, giving the lie to Conservative and Reform claims. He can even point out that to deny these claims constitutes heresy, a distancing of oneself from what a Jew is required to do and believe. There’s no need for the word resha’im, evildoers, or the like, however. By leaving that out, he can avoid giving offense, since he’s not judging this girl’s father [I wonder whether that’s still true; in my experience, saying that a particular belief is heretical is considered an insult]. Using the word resha’im carries more bite, unnecessarily (and, likely, of no positive effect, he says). Resha’im Technically and Colloquially Another reason to avoid the word is that she will hear it differently than he means it. Resha’im in common language means terrible people who act terribly, like Haman, and she knows her father is not like that. The teacher likely means it as halachah does; R. Feinstein himself has explained that in an earlier responsum, Even Ha’Ezer 4;13. There, he questioned the halachic validity of a marriage overseen by a Conservative rabbi, even if that particular rabbi kept kosher and Shabbat. Membership in the Conservative rabbinate, a movement that does away with some Biblical prohibitions (such as driving to shul on Shabbat, I believe R. Feinstein means) and many Rabbinic ones, makes them heretics and invalidates them as witnesses, even if we do not know of any specific conduct by this individual. Reacting to Heretics To explain how that can be, R. Feinstein cites Rambam, Laws of Witnesses 11;6, who noted that Chazal did not need to include apikorsim and mumarim (different ways of rejecting Jewish faith or practice) in the list of those no longer accepted as witnesses in court, because it’s obvious from other comparisons we make. For example, those types of people are worse than idolatrous non-Jews in some ways. The theoretical rule [I say theoretical because there are many, many caveats R. Feinstein does not review here. Those make it vanishingly rare that someone could actualize this] is that we do not save idolaters who are in danger; for apikorsim and mumarim, we would (again, theoretically) find ways to engineer their demise. His point is that there’s no evidence that we need a formal process to qualify someone as an apikores or mumar, it’s a status that becomes well-known by that person’s actions or statements [that, too, is a topic that would stimulate much debate today; in my experience, many people object to the claim that someone has become an apikores or mumar, regardless of the evidence]. Joining Conservative Judaism is a public way to make clear that one denies many of the Torah’s laws, and likely denies the Giving of the Torah at Sinai. That’s true even if the rabbi in question took the job because he had to make a living. Temptation is a partial defense for mumarim, those who have abandoned observance-- a mumar le-te’avon, out of desire, is less distant from the Jewish community than one who does it for no reason. Heretic vs. Evildoer With heresy, the rules are stricter. A Jew who makes a heretical assertion, or by his/her actions makes clear that s/he accepts that assertion, attains the status of apikores or kofer. Since the Conservative movement has denied Biblical and Rabbinic laws, all Conservative rabbis are considered apikorsim. But that’s not what the daughter would hear. To make the point clearly, the teacher would have to preface it with a technical definition of rasha as halachah has it—based on Devarim 25;2’s referring to someone who violated the Torah in a way that incurs lashes as a rasha—convince her of that, and then move on. There’s no need. What’s needed is to explain what Jews should assert as true, and that those who make other claims misrepresent Judaism and truth. The teacher can do that without adding the insulting element of calling her father an evildoer, explicitly or by implication. College and Heresy The responsum has two short pieces on issues that seem completely unrelated. First, he notes that tuna and salmon require hashgachah, rabbinic supervision. For tuna, his son-in-law R. Moshe David Tendler has informed him that certain species of tuna do not have scales (and would therefore not be kosher). Before eating tuna, then, Jews need to know who is supervising the catch, to be sure these are tuna with scales. R. Feinstein is uncertain about salmon, and promised to have R. Tendler look into it. The very last question was about interest, where a man takes a loan from a bank, at interest, and passes it on to a fellow Jew (in other words, the first man is fronting the loan for the second). Halachically, there are two loans here, from the bank to the first Jew and then he to the second Jew. That second Jew may not pay interest to the first Jew without a heter iska, which turns a loan into a sort of business partnership. In between those two, there is a brief comment on an issue that again brings up questions of belief and how it affects us. A woman has mostly finished college and stayed committed to Judaism’s practice and worldview.  She has a few courses left, fairly technical ones that do not seem to present a problem to her religiosity. Even so, R. Feinstein recommends that she go to a state school rather than a Catholic one. He doesn’t elaborate, but to me he seems to be saying that the environment of a Catholic school itself presents challenges that should be avoided if possible. This responsum takes on some of the challenges of building a life in which we continue to assert that which Judaism tells us is true. When we meet others, Jewish and not, confident of another way of looking at the world, we will need to make hard choices about where to go and how to express ourselves. As R. Feinstein noted here, and offered his advices on two such instances. 6 Av: Bach on Making a Brachah on Stolen and Other Prohibited Foods Making brachot on stolen items is a specific example of the concept of mitzvah ha-ba’ah be-averah, that Judaism has a problem with performing mitzvot that were made possible by acts of sin. Shu”t Ba”ch HaChadashot 1, dated 6 Av 5384 (1624) takes up that question, noting that Shulchan Aruch Orach Chayyim 196 follows Rambam’s ruling that we would not make a bracha or have a zimmun [where three Jews join together for birkat hamazon, signifying the unity created by their eating together], even on items that prohibited “only” at a Rabbinic level. Rambam [Ba”ch says it’s at the end of the eighth chapter of Laws of Blessings, but the paragraph I found that says what Ba”ch says it does is in 1;19] specifies tevel de-Rabbanan, produce that Rabbinic law required us to tithe, as items on which we would not make a brachah or have a zimmun, and all the more so non-kosher meat or wine that has been used as part of the worship of some power other than Hashem, as items on which we would not make a brachah, because of the oxymoron in making a brachah as we’re committing a sin. Ba”ch is going to suggest that we do recite a brachah before eating some prohibited foods, but let’s first mention Ra’avad’s gloss. He held that these foods only lack the chashivut, importance or significance, to be a vehicle of enough unity to justify a zimmun, but would necessitate a brachah before partaking. Inherently Prohibited or Vehicles of Prohibition Ba”ch points out that Rambam’s examples were all foods that were prohibited themselves, by virtue of some truth about them (such as that they were untithed, or were not animals that died without valid shechitah). Other items are prohibited to us for reasons external to the items themselves, such as if we stole them. In Baba Kama 94a, R. Eliezer b. Ya’akov (REBY) applies Tehillim 10;3 (“one who blesses on stolen items reviles Hashem”) to the case of one who steals wheat, turns it into bread, and takes challah from it (which is what one is supposed to do when ordinarily baking bread). Abbaye says that’s because all the changes that he made don’t fundamentally change the wheat (so that it’s still the exact stolen item). Rava, on the other hand, said that once he changes the wheat, he acquires it but that that’s not enough to justify reciting a blessing, because it’s a mitzvah secured with a sin. There are problems with that view, as Tosafot pointed out, because if the change is the crucial issue, why did R. Eliezer b. Ya’akov have to go all the way through to after the bread was baked—once the thief ground the wheat, he had changed it such that the central issues were all already in play. Berachah on Challah or Birkat HaMazon That R. Eliezer b. Ya’akov went all the way through to taking challah from this stolen wheat leads Ba”ch to suggest that he read the verse of botze’a berech ni-etz Hashem, one who blesses on betza is reviling Hashem has two meanings. It certainly does mean that making a brachah on stolen material is a problem, but betzi’ah is also the verb used for breaking bread; Ba”ch thinks REBY was telling us that the verse means to imply that one would still be considered making a berachah on an item of sin all the way through to the berachah on the bread itself. That cannot mean hamotzi, since there is no such Biblical obligation, so REBY understood it to apply to the brachah on taking challah (which is a Biblical obligation connected to bread, since it only applies to turning flour into dough). Lest we wonder why the verse would make a point of that (since presumably any mitzvah done with this material, forever after, should be a problem), Ba”ch suggests that it’s teaching us a limitation, that a berachah made after eating that bread would not have that same problem. In fact, Yerushalmi Challah Chapter 4 quotes R. Yonah as saying that it’s only the berachah prior to eating that one cannot make on stolen matzah, but after it’s eaten, the thief only owes money (the stolen material no longer exists), so the botze’a berech problem goes away. The Problem Is the Berachah or the Mitzvah? Yerushalmi uses the matzah example because it too has a Biblical element of mitzvah (eating matzah the first night of Pesach is a Biblical obligation), so there’s a meaningful way to contrast before it’s eaten, when one cannot make a berachah, with after, when only the debt exists. Nor is it only about the berachah, according to Ba”ch. He says that when the Yerushalmi says the thief cannot make the berachah, it actually means that he won’t be fulfilling the mitzvah with that matzah, which renders the blessing le-vatalah, pointless (Ba”ch is saying that for all that the verse focuses on the berachah, it’s actually the underlying observance that is made impossible becase of the sin associated with it). R. Yose there disagrees, saying that the mitzvah cannot be a sin, which Ba”ch understands to mean that the act is clearly an act of mitzvah, just that it is also a ni’utz, a mitzvah that carries with it a stain as well, such that a berachah is not appropriate. Ba”ch thinks that shows that the prohibition against making a berachah on items of sin only applies where the sin is inherent (since, as we’ve seen, stolen items can have a berachah at some point). Debated or Not? Rosh had said that in fact one did have to make a berachah even on such stolen items, just that it would be a ni’utz, a reviling of Hashem. Ba”ch is so sure of his view, however, he says Rosh must never have seen the Yerushalmi, and would have changed his view had he seen it. When Beit Yosef takes Rosh at face value and sees this question as a matter of dispute (Rambam holding that we do not make a berachah before eating such food, Rosh holding that we do), which applies equally to stolen food as to foods that are inherently prohibited, Ba”ch thinks the Yerushalmi is so clear that Beit Yosef got it badly wrong. Beit Yosef had cited other examples to support his view, from a Tosefta in Demai, but all of those (and other sources on this issue, such as Rashi and Rabbenu Yonah) were discussing items inherently prohibited, where Ba”ch’s concedes that one would not make a berachah before or after, or have a zimmun. For theft, before the item has been changed, there’s no way to make a berachah because it does not belong to that person (nor could one fulfill the obligations of matzah with it); after it’s been changed, there is a debate in the Yerushalmi about a berachah before, but after—once it’s been eaten and is gone—it is converted into a monetary obligation, so the person man recited the berachah on it as food. It’s not good to sin, but in some restricted situations, the sin does not permanently prevent a mitzvah or a berachah from being performed. As far as Ba”ch knew, on the sixth of Av, 5384.  7 Av: Putting Up a Mezuzah for a Non-Jew Some people treat mezuzah superstitiously, as if the box itself protects, independent of our belief in or subservience to Hashem. That explains why some non-Jews want mezuzot on their doors, even though they might not believe anything else about Judaism. On the 7th of Av, 5709 (1949), R. Moshe Feinstein, Iggerot Moshe Yoreh Deah 1;184, was asked about a non-Jew who wanted his Jewish landlord to put a mezuzah on the door. The landlord wanted to know if he could, to avoid losing the tenant. Rema to Yoreh Deah 291;2 had allowed putting up the mezuzah if there was a worry about evah, hatred, that the non-Jew would harm the Jew for refusing. The questioner, R. Ephraim Greenblatt, wondered whether that was only where the non-Jew might actually damage the Jew, or even the loss of rent would be enough to allow affixing the mezuzah. (R. Moshe will note the reasons to resist putting it up later in the responsum). Hatred Or Loss, Not And Loss R. Moshe starts by positing that Rema actually recognized two different possible negative outcomes in such an interaction with a non-Jew. The non-Jew might hate (or, less dramatically, bear a grudge) towards the Jew, even if that would not lead to any direct damage, and then the non-Jew might work to damage the Jew. Either sufficed to allow putting up the mezuzah, R. Moshe reads Rema as saying. He supports his contention by noting that in 148;12, when explaining why we allow conducting business on non-Jewish holidays, Rema mentioned only the hatred component, not that the non-Jews might cause monetary loss to the Jews. (Avoiding hatred is the sufficient reason, also, to allow giving medical care to non-Jews on Shabbat, in any situation where they would not accept the Gemara’s justification for not giving such care, that we are only allowed to violate Shabbat to save the lives of those who observe Shabbat. Wherever that’s not convincing, the hatred that would ensue from our refusal renders it permitted). There is hatred that fuels vengeance, and hatred that stops at ill will, with little likelihood of ensuing damage. Just Hatred Doesn’t Allow Everything Ill will alone would not allow transgressing a Biblical prohibitions; it’s no greater a danger than many others in life, and we’re not allowed to violate the Torah to avoid bringing danger into the world. R. Moshe actually thinks we are often allowed to bring new dangers into the world; we are, for example, allowed to help lionesses and bears give birth even though that introduces a new dangerous animal into the world. When Chazal made decrees, however, they decided to allow us to violate those even to avoid this lower level of dislike. For R. Moshe, that might be because this source of possible future harm has a mind of its own, and can make plans for hurting us, leading Chazal to decide that the danger, while only theoretical, sufficed to suspend their decrees. But It Does Allow Avoiding Damage But when the non-Jew walks away from the interaction intent on harming us, that’s an immediate danger. To avert danger, we are allowed to violate Torah law (in certain situations), especially a human being seeking vengeance. An example would be our refusal to help put out a fire in a non-Jew’s house on Shabbat, or a Jewish midwife refraining from helping a non-Jewish woman give birth (R. Moshe thinks the midwife can hand off more minor aspects of the childbirth to a non-Jewish assistant, since the hovering father or husband won’t notice or mind). In those cases, any bad outcome would lead the non-Jew to seek vengeance against the Jew whose refusal to help led to greater damage, and that allows us to violate even Torah law. Finding a Biblical prohibition against attaching a mezuzah to a non-Jew’s door is what would explain Maharil’s ruling that the Jew should not do it, even if it will lead to dislike without any plans for vengeful action. What would that Biblical prohibition be, however? R. Moshe suggests that it was a worry about בזיון קדשים, mistreating sacred writings. That would explain Rema’s limiting the prohibition to cases where the non-Jew would take some kind of revenge. He discards that answer, however, both because Rema should have been more explicit and that would make it a simple and straightforward law, whereas Rema wrote that “it seemed to him” permissible, which sounds more like it was his own novel idea. It’s Not Biblical R. Moshe therefore decides that there is no Biblical worry in this case, because a non-Jew who is anxious to have a mezuzah placed on his doorway would treat it well. The only worry is that the non-Jew will pass away, leaving heirs who will not take the same care. Rema held that it did not apply wherever the refusal to put it up would lead to hatred, even if the non-Jew would not intend to cause us any harm for our actions. The novelty in that approach is that he permitted it even where there wouldn’t be any hatred, where the non-Jew would accept our reasons for not wanting to affix the mezuzah. As long as there would be some loss, such as the non-Jew refusing to rent the place, the Jew could put up the mezuzah. That’s certainly true where the non-Jew will then rent from a non-Jew, since that shows that he was angered by the Jew’s refusal (if he didn’t care, he could have rented from the Jew despite his refusal). If, on the other hand, the non-Jew would rent from a Jew who is willing to put up the mezuzah, it shows there is no hatred, just an insistence on having a mezuzah. Since R. Moshe thinks our Jew could likely find another renter (and would rule differently if he could not), there is no financial loss, so R. Moshe thinks the Jew should not put up the mezuzah. Not a Fake Mezuzah The questioner suggested the landlord could put up an invalid mezuzah, appeasing the non-Jew but not risking the honor of sacred writings. R. Moshe rejects this as obviously prohibited, in that Chullin 94 rules out (Rambam and Shulchan Aruch record the ruling) tricking others, including non-Jews. The non-Jew asked for a mezuzah like Jews use in their service of God; the answer is yes or no, but not to give him something else and pretend it is what he wanted. It also wouldn’t help, since the prohibition against mistreating Scripture applies even if there’s a problem in the writing. (We could solve that problem by not including a scroll at all, as happens today, but that wasn’t R. Moshe’s reality.) Sum total, R. Moshe thinks that as long as we have reason to believe the non-Jew would treat the mezuzah well, it is fundamentally permissible to put one up. Maharil raised a distant worry as a stringency, which we should accept as long as there is no loss in so doing—loss that includes hurt feelings on the non-Jew’s part or financial loss on the Jew’s. 8 Av: R. Ovadya Yosef on Using Money for a Different Purpose Than Raised In my searches for responsa on a given date, some respondents were so prolific that they appear almost daily, usually with multiple entries (such as Chatam Sofer, Shu”t Shoel ve-Nishal, and R. Moshe Feinstein). R. Ovadya Yosef, for all the volume of his writings, did not date his responsa as consistently, so I don’t always have the opportunity to share his ideas. Let’s take advantage of this one. Money for a Synagogue and Mikveh Yabia Omer 7 Orach Chayyim 25, dated 8 Av, 5732 (1972), answers a question from the Jewish community of Teheran [before the revolution seven years later]. They had collected money for a new beit kenesset [it feels wrong to refer to it as a shul when neither party to the conversation would have used that word], since the old one could not hold all the people in the neighborhood, and to build a new mikveh, as the existing one was very far away. After ten years of fundraising, the heads of the community had come to accept that the money was not forthcoming, and wanted to divert what they had raised to other, doable projects. As justification, they noted the halachic principle that hazmanah lav milta, declaring something to be for a certain purpose does not make it so [for example, we don’t treat a bathroom as such, for some halachic purposes, until it’s actually used]. They’re asking R. Ovadya Yosef’s opinion. Limits on Switching Funds Raised for One Purpose Rambam, Laws of Prayer 11;15, ruled (and Tur and Shulchan Aruch agreed) that money raised for one purpose can only be changed to a need of a higher level of sanctity. If they fulfilled the purpose and had money left over, the extra money can go to whatever they decide. Ramach expressed surprise for two reasons. First, hazmanah lav milta, as we rule, means that an item doesn’t become sanctified until used for its intended purpose. More, that whole principle applies to the materials for a need, like the bricks for a building, or the material for a piece of clothing. The money used to buy the materials is one step removed, and less implicated than even hazmanah. To support Ramach’s claims, R. Ovadya Yosef notes that a responsum of Rosh that allowed changing money collected for a synagogue to other purposes, but thought they had to be for more sanctified ones, such as Torah study, like Rambam. That’s despite anticipating Ramach’s idea that money is too removed from the goal to be considered set aside for that as hazmanah. Rashba and Rashbatz both also thought that communities can repurpose collected money, as long it wasn’t for purposes that are derogatory or lacking in value. Meiri held that the major point of that discussion was that leftover money could be used for another purpose—in his view, it was obvious that money collected but not used could be switched. What was new was that money that had started being used for one intent could, if not needed for that, be used for something else. Ashkenazic decisors had made similar comments, such as Maharam of Rothenburg and Terumat haDeshen. R. Ovadya says that with all that, we need to answer Ramach’s questions. Hazmanah or Action? Bach in his commentary on Tur argued that hazmanah wasn’t the relevant category, because putting money into the hands of those authorized to spend it isn’t preparing the money, it’s actually giving it. Yoreh Deah 259 said such money can’t be changed; Bach suggests it’s because giving qualifies as an halachic act, establishing this money for its purpose [as would be actually praying in a building that was going to be a synagogue]. If the money couldn’t be used for that purpose, and the giving wasn’t an act, we’d have to return it to the donors, but no one expects that—donors always assume that once they’ve given the money, it’s going to be used, one way or other. Vow Erech Hashulchan cited Taz to Orach Chayyim 153;2 who offered a different way of looking at it. He said it’s a matter of neder, a vow to donate to a cause of a certain level of sanctity. Until the money has been used for that cause or one of a higher level of sanctity, the vow has not yet been fulfilled. A shul that has been built but not used is not yet a shul; but the money donated for it has also not yet been used for its intended purpose, so the donors’ vows have not yet been kept. For that latter reason, they could not change the building to some lesser purpose. R. Ya’akov Emden in Mor U-Ketziah also thought of it as a vow, while Magen Avraham had spoken of ikchushei mitzvah, reducing or removing a mitzvah from the world [they had intended to do a mitzvah with this money that’s now being negated], and Ran had said that it was specific to tsedaka that we don’t want to change it away from its donated cause. All of them, in other words, were saying that donated moneys are more linked to their intended purpose even than physical materials set aside for a certain cause, thus fitting well with Rambam and the Shulchan Aruch. The Value of Building a Mikveh Returning to the case at hand, R the money was not enough for a synagogue, but was enough for a mikveh. Building an easily accessible and attractive mikveh could keep women and their husbands from violating karet prohibitions, a cause whose importance should be clear to the leadership of the community, particularly its Torah scholars, who know the importance of proper awe of Hashem and concern with keeping His mitzvot. To R. Ovadya, it was clearly more valuable than putting up a new synagogue building. This is all the more so since many include niddah [a woman who has sexual relations without having gone to mikveh since menstruating] among the arayot, the sexually improper relationships that one has to be killed rather than transgress, as did Rashba and R. Shlomo Kluger. Even those who disagreed, such as Penei Yehoshua, R. Yitzchak Elchanan Spektor, and other acharonim, agree that each act of sexual relations violates a karet prohibition. For that reason, Chafetz Chayyim held that a Jew may not live in a city without a mikveh, and that the members of the community can force each other to donate to building it [the question of how much to collect from each member is one that R. Moshe Feinstein dealt with in a responsum dated 25 Av 5721, which I summarized in my audio shiurim, A Responsum a Day, at ou.org]. That includes post-menopausal women and their husbands, though they no longer have the need to use that mikveh nearly as often. That’s because Chosen Mishpat 163;3 rules that establishing a mikveh is prior to building a synagogue or buying a sefer Torah or any other communal mitzvot. Chazon Ish also prioritized mikveh over building a shul, based on Eruvin 32b saying that those concerned with observance prefer transgressing minor matters to protect the unlearned from more serious violations. Better to give up on having a shul (also obligatory, but a need that yields to mikveh) than risk the unlearned not using a mikveh and incurring terrible liability. That’s all the more true of the synagogue in Teheran, where the problem of size only arose on the High Holidays. Certainly, the communal leaders needed to focus more on mikveh observance, a mitzvah our foremothers kept in much more difficult circumstances (such as immersing in cold winter rivers or lakes, since they had no other options). Letting people know the seriousness of the matter should help greatly in encouraging them to make use of the clean, warm mikveh this money can be used to build. He closes with the usual blessings related to the topic (as will we), that immersion in mikvaot will lead Hashem to (as a verse says) sprinkle on us purifying waters, and return all our distant ones to Zion, redeemed by Hashem.  9 Av: Klausenberger Rebbe on the Obligation to Learn Torah on Tish’a B’Av I should not be able to find responsa dated the ninth of Av, Tish’a B’Av, since it’s a day when Jews are not supposed to learn ordinary Torah. Most people assume the permissibility of learning devarim ha-ra’im, sad or depressing areas of Torah (such as Eichah, the book of lamentations over the destruction of the first Beit HaMikdash) is a concession, that on a day when we ideally should not learn at all, these areas do not violate the proscription. Shu”t Divrei Yatziv Orach Chayyim 240, dated the 8th of Av 5742 (1982), takes a different view of the prohibition to study Torah on Tish’a B’Av. Since I already had a responsum for 8 Av, I’m using this one for 9 Av, only a bit of a cheat. Reasons Not to Learn Mishnah Berurah 553;8 ratifies the custom mentioned by Rema, to refrain from non-Tish’a B’Av permissible Torah already on the afternoon of the eighth of Av. He applies that even to when the eighth is Shabbat, when we allow other activities that would ordinarily be proscribed, such as eating se’udah shelishit, the third Shabbat meal, with as many dishes, including meat ones, as one wants. Although there are reasons to think the food instructions meant we should not start any Tish’a B’Av activities on Shabbat, R. Halberstam understood Mishnah Berurah to agree with Magen Avraham, Torah study is different and should be Tish’a B’Av-like already from Shabbat afternoon. To explain, R. Halberstam points to a statement in Yerushalmi Chagigah (and other places), Hashem was willing to forego serious sins, such as idolatry, sexual immorality, and murder, but the rejection of Torah was intolerable. Yerushalmi Yoma adds the assertion that any generation in which the Beit HaMikdash was not rebuilt should see itself as if it had destroyed it. R. Halberstam thinks Yoma means each such generation should see itself as continuing the exact same sins as those which led to the destruction, which is certainly true of neglect of Torah study, a flaw he saw as continuingly common in his time (and, I bet he’d say, ours). Stay Away From Torah, To Learn a Lesson Each time we encounter Tish’a B’Av, then, he thinks the day reminds us we could have avoided this situation had we only paid proper attention to Torah study. While the custom forces us to neglect Torah on Tish’a B’Av itself, it’s a kind of et la’asot, where we violate the Torah to protect it, to spur us to better Torah study throughout the year. So, too, Menachot 99 records Resh Lakish’s statement that sometimes refraining from Torah study puts it on firmer foundations. If we remember our failures in study caused the day, we will be more likely to study properly throughout the year, and be freed of the sadness of the day by the rebuilding of the Beit HaMikdash. He applies the same logic to Nittel nacht, the night of the 24th of December. [The custom, as explained to me, had its roots in the fear of drunken pogroms, but] R. Halberstam suggests we are reminding ourselves of our own failures in Torah study which opened the door to the religion whose founder’s birth the day celebrates. Had we studied well, Christianity would never have come to be. His great great grandfather, the author of Benei Yissaschar, said we stop Torah study on the eighth to remind us of how late in the process we still could have avoided the fullest destruction. The afternoon of the day before the Temple was burnt, had the Jews repented and returned to Torah study, the disaster could have been averted or postponed. To R. Halberstam, our mourning practices show we mourn the loss of Torah study— Chagigah 5b says exile contributes most to the neglect of study— more than the loss of political power. A Pause for Some Other Options R. Halberstam has made many important claims, but I feel the need to point out some issues. Rabbinic literature uses the phrase “lo charva Yerushalayim ela she-, Jerusalem was only destroyed because,” a few times, with more than just the option of neglect of Torah study, and the three times the Bavli uses it do not refer to bittul Torah, lack of Torah study. I would have wished R. Halberstam would have explained why we should attach more authority to this idea than to others. I could find other quibbles, but he is about to say something much more radical, that the custom does not mean we try to refrain from Torah study. How To Spend the Day Kaf haChayyim permitted not studying Torah at all on Tish’a B’Av, if one did not wish to study some of the permissible texts. [I always thought this was the general view, the areas of study the Gemara itemized were allowed, since they do not involve happiness, but not required, since the day is one of mourning, where we by and large do not study]. R. Halberstam disagrees. Anyone who prohibited all study (as some opinions quoted in the Tur had it) would accept Kaf HaChayim’s view, he thought. But once some study is permitted, we must also be obligated to study those areas, because Torah study is never a matter of choice. For further support, he points to Beit Yosef’s acceptance of Yerushalmi’s willingness to permit ordinary study to anyone for whom stopping would constitute a true hardship. The permission only makes sense, he claims [there is what to question, but let’s listen rather than argue] if there is already some obligation to study that day [I think he means we would only care about how hard a person would find staying away if there is still an obligation to study that day. If there were an absolute prohibition, the discomfort of the person shouldn’t matter. I might have countered that if this Yerushalmi assumes one can study the sad parts of Torah, why couldn’t this person be directed towards those?]. We Should Recognize the Press of the Obligation R. Halberstam is reacting to a sefer he had just acquired, Matteh Yehudah, which purported to prove a mourner is in the same situation, may study the sad parts of Torah but has no obligation to study Torah. He argues against that view in several ways, but we have space for only one. Matteh Yehudah thought Menachot 99b presented R. Shim’on b. Yochai as of the view that one can fulfill one’s obligation of Torah study at a minimal level by reciting Shema morning and evening (since a mourner does that, Matteh Yehudah is saying s/he need not do more). R. Halberstam points out the weakness, Shulchan Aruch’s omission of Keriyat Shema as a way to minimally fulfill the mitzvah in the laws of Torah study, Yoreh De’ah 246 (Rema does mention it, but R. Halberstam thinks R. Yosef Caro’s having left it out means we should not apply the idea widely). In Orach Chayyim 47, Shulchan Aruch also points to a more pervasive obligation than Matteh Yehudah implies. We do not recite a blessing upon completion of Torah study because the mitzvah applies day and night, so we’re never done, says Shulchan Aruch. Shulchan Aruch ha-Rav, the redoing of Shulchan Aruch by the first Rebbe of Lubavitch, allowed relying on the morning and evening Shema occasionally, but not regularly. To R. Halberstam, the sources are telling us the study of Torah should infuse all or as much as possible of our day, even days of mourning. We Learn Torah Anyway More proof we’re obligated to study Torah on Tish’a B’Av comes from the fact that we always do learn Torah, such as by reciting Keriyat Shema (although the recitation is also a separate obligation, which might make it different). Orach Chayyim 46;9 sees an issue with reciting verses before saying birchot haTorah, the blessings on Torah study, which sees those as an example of Torah study, yet we say them on Tish’a B’Av. Aside from the contested issue of whether recitations count as study, R. Halberstam says Torah scholars almost necessarily have thoughts and insights even while just reciting sections of Torah, so it’s clear some or many Jews are learning some Torah on Tish’a B’Av, so there cannot be a general prohibition against all study. [One could, again, question some of this logic; here, for example, the weight of the Torah’s obligation to recite Shema might have weighed heavily enough on Chazal that they chose not to prohibit those few moments of Torah study, despite the general prohibition]. For R. Halbersam, it must be that Chazal told us not to study that which makes us happy (all Torah, other than devarim ha-ra’im, the parts that deal with sad or distressing topics). But there remains an obligation to study, which we fulfill with the kinds of Torah that are permissible. How the Argument the Other Way Could Go He does recognize the Gemara’s list lends itself to being about recitation rather than study. To read Iyov, the predictions of destruction in Yirmiyahu, and Eichah could be seen as acts of mourning, those texts helping us access our feelings of desolation over what has occurred (with Iyov being a way to help us avoid repudiating the justice of what Hashem has done to us). If we focus on using the text as an aid to or expression of mourning, it’s not study at all, which takes away his argument for an obligation (and he notes sources that refer to “days prohibited to read the Torah,” Tish’a B’Av among them). Nonetheless, R. Halberstam thinks one clear enough counterexample restores his view, the end of the third chapter of Mo’ed Katan, which the Gemara includes among the devarim ha-ra’im one is permitted to study. R. Halberstam sees no way to view a Gemara as an item for recitation rather than study [one could dispute this as well; a casual reading of the laws of mourning might function like those other texts, putting a person more in the mood of the day]. And that’s where he leaves it. For R. Halberstam, Tish’a B’Av is less different from the rest of the year than we generally assume, at least for Torah study. He agrees the curriculum is more restricted, but within the permissible areas, the obligation is the same. Rather than a day of desolation, where we sit around ruminating on our loss, he sees the day as one to spend as other days are ideally spent, studying Hashem’s Torah, the difference being that on this day, we study sad portions of Torah rather than the usual cheering ones.  10 Av: R. Ovadya Yosef on Trusting Sabbath Violators to Free an Agunah One of the thorniest halachic problems arises when a man disappears in such a way that we feel confident he has, sadly, passed away, but do not have sufficient evidence of that fact to free his wife/widow to remarry. That can be complicated when the only ones with the evidence we need violate Shabbat in public, since traditionally that put them outside the Jewish community (and meant we could not trust what they tell us). Shu”t Yabi’a Omer 8; Even HaEzer 18, from 10 Av 5740 (1980) responds to a Haifa beit din that had dealt with such a case. The court felt it had found sufficient room to allow her to remarry, but wanted R. Ovadya Yosef’s agreement before enacting the ruling in practice. He agrees with their ruling, but has what to add, in the course of which he will edify us on how halachic authorities continue to debate how to react to Jews who violate Shabbat in public. El Al Flight Attendants as Witnesses The missing husband was a soldier, and the only person who saw him get killed is a (male) flight attendant for El Al. While Maharam Schick argued that we are not required to assume someone is part of the majority of his town that violates Shabbat in public, El Al flight attendants almost universally are Sabbath violators, since El Al does not want to have adjust its flight schedules to accommodate Sabbath observers. So we have to assume this man is a Sabbath violator. That does not yet mean we cannot accept his testimony. Ketzot HaChoshen (Hoshen Mishpat 46;17) quoted Nimmukei Yosef, who differentiated between people we categorize as resha’im, evildoers, for their financial misdeeds (called a rasha de-chamas, an evildoer of theft), from ordinary resha’im. We reject the testimony of the first group because their venality means we have to worry that they would lie for financial gain. Other resha’im also cannot testify in beit din, but Nimmukei Yosef pointed out that that’s because of Shemot 23;1 says al tashet yadecha im rasha, which Baba Kamma 72b took to mean that we cannot let any evildoer serve as a witness. Since it’s a Scriptural decree rather than a cause and effect relationship—as we’ll see, it’s not clear that we suspect all resha’im of being willing to lie in court—Nimmukei Yosef held that we could trust such people where we do not need official testimony by Torah law. That includes agunot, since we need verification that the husband is no longer alive, not legal testimony. Growing Up Nonobservant and Testimony That logic runs aground on two factors, one minor and one major. The minor one is the claim that this man does not count as a rasha de-chamas, as one who violates the Torah for financial gain. Since he’s doing it for his job, that would seem to be for financial gain [theoretically, if we could show that he violated Shabbat long before he needed to do so for a job, that would help with this, but R. Yosef has bigger issues with this man’s observance]. Worse, Maharam Schick had argued that even Nimmukei Yosef would not accept the testimony of public Sabbath violators, because they have completely placed themselves outside the Jewish community [as I pointed out at the beginning of this summary, the Gemara already singles out public Sabbath violation as a qualitatively different level of rejection of observance, which removes that Jew more fully from the Jewish community than other transgressions]. Today, it has become common to think of such Jews as tinnokot she-nishbu, as not fully liable for their sins because they were raised in an environment where they did not know that what they were doing was wrong. But one book of responsa which accepts that idea, Shu”t Sadeh Yitzchak Chayot, still insists that such Jews cannot serve as witnesses in court. In his view, since this Jew does not believe in the Torah or keep Shabbat, we have to worry that he will lie as well. He phrases it as “since he rejects [the statements in the Aseret HaDibberot] ‘I am the Lord your Gd,’ and ‘Remember the Sabbath day to keep it holy,’ we have to assume that he also rejects ‘do not bear false testimony.’” One could dispute that—and R. Yosef will cite many who do-- but Shu”t Sadeh Yitzchak argues that since Shulchan Aruch and other codifiers of Jewish law never mentioned an exception for a Jew who has abandoned observance but still adheres to ordinary human morality (so that he would not lie in court), we have to assume they did not accept that distinction. Open Questions of How to React to Public Sabbath Violators Many other authorities argue exactly that way. Mahara”sh Engel said that just because a Jew will violate Shabbat for money (which is a much more serious violation) does not mean he’d lie in court, tricking a woman into remarrying when her husband is still alive. Chullin 101a aleady gives an example of that, where it says that just because someone violates Shabbat willingly, we can still assume they’d refrain from doing so on Yom Kippur (which, technically, is a lesser violation, punishable by karet, excision, rather than mitat beit din, execution), because people see Yom Kippur as more serious. Another way to accept the testimony of this El Al flight attendant is that many authorities, starting with Sema to Choshen Mishpat and including Chida and R. Kook, thought the public Sabbath violator only loses his believability if he’s been informed that that’s a consequence of his lack of observance. R. Akiva Eiger said that regarding someone who shaved with a razor (a Bibilcial prohibition), and his reasoning applies now to Sabbath violators as well. R. Akiva Eiger had said that Jews only know that gambling causes them to be invalidated as witnesses, but do not realize that that’s true of other violations, such as shaving with a razor. In our days, these authorities say, where people violate Shabbat regularly, publicly, and with no meaningful protest, we have to assume that each individual violator also does not realize that that puts him halachically outside the community in certain ways (such as being believed in court), so we’d have to tell him before acting on that. That’s not a settled matter. Other authorities, including Netivot HaMishpat, think that willful Shabbat violation is so egregious he loses his believability anyway. Within that stringent view, there’s still some room to be lenient, since there are authorities, who required testifying in court in front of the Sabbath violator before we would apply that status to him. It’s not enough that the whole world sees it, it has to be established in a beit din, with the man standing there, before the status of public Sabbath violator applies to this man. There, too, others disagree, going back to Ba”ch. They say that that might be true of ordinary transgressions, but someone who leaves Judaism so fully as to worship a power other than Hashem or to violate Shabbat in public, brings that status upon himself by his actions, with or without testimony in court. Choosing Leniency Given the significant debate on these issues, we might think we should rule stringently, just in case. R. Yosef points out that that’s not how halachah handles agunah issues; we take the word of non-Jews who reveal information without realizing why it matters to us, based on Chazal’s assumption that a woman will be very careful before remarrying (since the consequences of a mistake are so severe—she would have to divorce her second husband, be unable to go back to her first husband, and any children from that second marriage are mamzerim, they and all their descendants unable to marry ordinary Jews). R. Yosef adds that a failure to be lenient would mean many, many women stuck as agunot forever, and Chatam Sofer had reasoned exactly that way when he accepted testimony in civil courts to free agunot, even though halachah had not done so until then. When People Bifurcate Their Moralities Another avenue to believing this El Al flight attendant is an argument advanced by several authorities in the early twentieth century, including R. Kook. They pointed out that nonobservant Jews in their time accepted ordinary human morality, such as not lying in court, and some authorities thought that was good enough to believe a non-Jew, at a Biblical level. As we said earlier, as well, Sema held that the Gemara recognizes that people sometimes decide for themselves that some action is more serious than another. We may disagree with them, but we can trust that they will follow their moral vision, and not lie. R. Uzziel had applied that explicitly to Shabbat violation, had taken the logic of R. Akiva Eiger (that people do not realize that shaving with a razor violates the Torah) and said that in our time, sadly, that is equally true of those who violate Shabbat. R. David Zvi Hoffman had a tradition that R. Yosef Shaul Nathanson had said that about American Jews (in the mid-nineteenth century), that their Shabbat violation does not invalidate them as witnesses, since they do not know any different. R. Hoffman added that violating Shabbat in public no longer counts as public, since the individual doing so does not realize he is violating the Torah [s/he may realize that other Jews think of it as a violation, but the Jews doing it do not—once they do not think they are doing anything that is significantly wrong, they’re not doing that which the Gemara meant by public Sabbath violation, they’re not flouting communal standards of behavior]. He of course then quotes Chazon Ish’s idea, that since no one today knows how to remonstrate with fellow Jews, we cannot look at any such sinners as having continued to sin after having been effectively told that what they were doing is wrong. News Spreads Faster The final reason we can take the word of this El Al flight attendant starts with an argument of Terumat Ha Deshen (from the fifteenth century), that nowadays were a man to still be alive, we’d hear about it. Chatam Sofer ratified that in the nineteenth century, that the advent of the telegraph, and trains, mean that communication is better enough that were someone to still be alive, we’d know. [We all know that’s not ironclad, that even today people disappear for decades and then turn up; the halachic question is the extent to which we have to worry that that’s what happened here, and we need not be absolutely certain]. At a Biblical level, once the man has disappeared for a long time, she is free to remarry, especially since we assume he’d try to get in touch were he still alive. Since he’s been missing for several years now, R. Yosef can comfortably agree with the Haifa court that this woman can assume her husband is no longer alive, and marry someone else.  11 Av: R. Shlomo Zalman Auerbach on Heating Food on Shabbat Yerushalayim in the twentieth century hosted a remarkable collection of Torah scholars, some of whom we get to meet and learn from in this series. Adding to the fun, we also get to see them interact with each other, realize that they were colleagues and friends, who tussled over Torah ideas as part of that friendship. Shu”t Minchat Shlomo Tinyana (2-3) 12 records a series of R. Shlomo Zalman Auerbach’s suggestions in reaction to Tzitz Eliezer’s view of how we may or may not heat food on Shabbat. The starting point, dated 5 Menachem Av 5708 (1948), was RSZA’s disagreement with his friend’s decision to prohibit leaving food in or on an electric oven/stove that would go on on Shabbat, unless that food was already fully cooked (in halachah, once food is a third cooked, it is called ke-ma’achal Ben Drosai, has reached the level of preparation that a robber named Ben Drosai ate his food, which counts as cooked for certain halachic purposes. Tzitz Eliezer rejected that as a relevant standard here. I’m not sure why it matters to me, but I note that RSZA—older of the two by six years-- was only thirty-eight at the time of this correspondence. In addition, this happened while the War of Independence was being fought, and neither of them mentions it). Stirring Food on a Fire Counts as Cooking Tzitz Eliezer was concerned that once the stove lit, a Jew would stir the food, which counts as cooking it. RSZA points out that Shulchan Aruch Orach Chayyim 253 allows leaving food on a fire which has been covered (as we would today with a blech_ from before Shabbat as long as the food began cooking; Shulchan Aruch does not require that it have reached any level of completion. R. Akiva Eiger demurred there and in his Mishnah commentary, and raised exactly the issue Tzitz Eliezer had, that a Jew may stir the food. Yet R. Akiva Eiger never had any question about once it reached ma’achal Ben Drosai, a third cooked. Once it’s achieved that status, the stirring that might occur is not a full act of cooking (since this food is already cooked for these purposes), and we therefore do not have to set up protections to be absolutely sure a Jew will not forget and stir it. The custom in Yerushalayim at the time was to leave some bread on the stove as a way of making it ketumah (we today assume we need to cover the fire; RSZA seems to be assuming that a reminder that we cannot adjust the flame is enough, and that a piece of bread sitting there suffices; for another time). RSZA thought that the rules for stoves and ovens that had a flame that was covered/came with a reminder translated fully to electric stoves or ovens that would light on Shabbat—as long as there was a reminder there, and the food was cooked at least a third, he saw no problem. When Food Gets Cold By the 11th of Menachem Av (the date that put this responsum in this slot), Tzitz Eliezer had answered him (and he later published that as Tzitz Eliezer 3;18); he argued that since the food cooled down completely, it lost its cooked status. RSZA concedes that that’s an issue according to one answer of Ramban’s in his commentary on the Gemara’s discussion of these issues. He does not think we have to accept that idea of Ramban’s, however, because most authorities hold that once a food is cooked to the point of ma’achal Ben Drosai, there is no longer the possibility of bishul achar bishul, that any further cooking of that food will not be halachic cooking. That’s true for liquids (like soups or stews) as well. We usually act as if liquids, once cooled, are considered to be cooking if we then heat them up again; RSZA notes that Rema in fact ruled the opposite way, that ein bishul achar bishul be-davar lach, that there cannot be repeat cookings of liquids (as there are not of solids—there are many questions about how to reheat solids on Shabbat, but once a solid food was cooked a third of its full cooking, any further cooking will not be an halachic issue of cooking on Shabbat). We do not generally act on that leniency because some views held that ma’achal Ben Drosai was not enough to avoid the issues of bishul achar bishul, that the food had to be fully cooked. That explains why we’d be strict about a possible violation of a Biblical law, but the concern in Tzitz Eliezer was that the person might come to stir the food. Actual stirring raises these issues of Torah law; Tzitz Eliezer was arguing we had to be strict because of the concern lest the person stir it, and that’s a Rabbinic matter. When evaluating whether a Rabbinically instituted rule applies, we can follow the majority view that once it reached ma’achal Ben Drosai, it’s cooked enough that stirring does not constitute a problem. Furthermore, Ramban had a third answer in his discussion, where he offered the possibility that stirring as an act of cooking does not apply to food at all (it applies to cooking dyes, the act in the building of the Mishkan that was the prototype for the prohibition of cooking). A sefer called Tiferet Yerushalayim (I’ve remarked on it before, that the Torah scholars of Yerushalayim in the turn from the 5600s to the 5700s—the 30s and 40s of the twentieth century in the non-Jewish calendar—had a surprisingly rich library) claimed that the general view followed that Ramban. RSZA isn’t sure how he knew that, but since we’re discussing only a protective ordinance to be positive the person does not stir the food, this idea is enough to allow us to rule that even completely uncooked food could be left on this electric stove. Where Stirring Continues to be a Worry I do not have the space to discuss all the points RSZA raises, so I’m skipping his defense of pouring food out of a pot that has been briefly taken off a fire (some worried that that counted as stirring). The next issue he takes up is what’s called kedeirah chayta, which was the practice to put a piece of raw food in a pot and then leave it on the fire overnight. Since there was no hope the food would cook before morning, halachah assumed the person would not bother stirring the food, since it would not materially hasten the cooking process. As Mishnah Berurah ruled in Bi’ur Halachah to 253, that’s only if the Jew has no intention of eating the food that night. Once technology has produced ovens that could cook the food for later that night, the Jew’s interest in the food brings the concerns of stirring fully back. A Jew could put in a piece of raw food and still imagine that s/he would have 11pm cholent, for example. There are acceptable ways to do that, but kedeirah chayta is not one of them, since the whole point was that the Jew would not possibly notice that it was cooking less quickly than expected and therefore stir it. As part of this discussion, RSZA takes the view (in contrast to another sefer, Toledot Shmuel, which I think was written by R. Shmuel Deitch, who might have been the rabbi of Bucharest, and published in 1944) that it is sunset (the halachically necessary advent of Shabbat) that matters for determining whether a food has reached ma’achal Ben Drosai and/or whether a food is considered raw enough that stirring is not a concern. That means that if a Jew accepts Shabbat early and wants to set up a kedeira chayta, s/he would have to be certain that the raw food was still not a third cooked by sunset and vice verse, that as long as the whole pot was a third cooked by sunset, the food would be cooked enough that we would not have to worry about stirring. Toledot Shemuel thought that one’s personal acceptance of Shabbat was what mattered; RSZA only entertained the possibility that if all of one’s community accepted Shabbat early, that might be the starting time of Shabbat for these cooking issues as well. Personal acceptance did not affect that issue, in his view. Covering the Fire I am running out of space, and most of the other issues in this responsum are too involved to present in a way that fits the room I have here (part of the challenge of this series is cutting giants down to our size, forcing them to tell us only that which we have the mental space to hear). One last idea I can address is RSZA’s insistence that a blech is not enough to cover a fire as the Gemara wanted. To understand his point, let’s remember that Chaza”l were worried that a Jew would come to stoke a fire that was dying too quickly, so that it would continue to heat whatever s/he had left on that fire. The parallel in our times is adjusting the fire. To safeguard ourselves from that in the way that the Gemara would see as sufficient, RSZA thinks that we have to cover the fire such that we cannot see it. [I believe that R. Moshe Feinstein held that we have to cover the knobs that set the heat or height of the flame for similar reasons]. A blech that leaves the flame visible serves as somewhat of a reminder that we should not interfere with that flame, but RSZA held that the visibility of the flame raises the danger that the Jew will adjust it. These are some of the concerns about heating, reheating, and using existing fires on Shabbat as part of preparing our food for enjoyment on that special day that RSZA raised, with his friend Tzitz Eliezer during Menachem Av of 5708, and at other times as well.  12 Av: R. Yosef Shaul Nathanson’s 12 Av, 5613 In this series, one of my secondary goals is to learn from and gain a passing familiarity with a wide range of authorities. R. Yosef Shaul Nathanson (1808-75) is someone whom I’d like to include but whose writings I find difficult to summarize effectively. On the twelfth of Av, 5613 (1853), he wrote three different brief responsa, and their brevity makes them easier to digest. As they were all written on the same day (not just the same date in differenty years), they sort of constitue a snapshot of that one day of this important rabbi’s life. An Unremovable Head Attachment In Shu”t Sho’el U-Meishiv Mahadura Tinyana 3;108, he was asked about a young woman who had been told by doctors that she had to let her hair grow thick and interwoven (the term he uses is kaltnis, which is a Polish-Russian word that one website I found translates as dreadlocks; Shu”t R. Akiva Eiger Tinyana 73 defines it as she grew her hair into a thicket), and never cut them, to avoid a life-threatening headache. What can such a woman do in terms of mikveh? For a year, she hasn’t gone (which means she and her husband have ceased the physical part of their married lives). Shu”t Panim Meirot had ruled she cannot go to mikveh, because this hair constitutes a chatzitzah, a barrier to the water reaching her entire body, but R. Nathanson is puzzled by the stringency, since he thinks the issue is a safek de-rabanan. [He doesn’t explain further, but I think he means that the only Biblical barrier to immersing is when there’s some chatzitzah that bothers her, that she intends to remove. If she doesn’t mind it—as is the case here, since it’s what’s staving off her headaches-- it’s called einah makpedet, that she would not intend to remove it. Further, Rashba held that if most people in this situation would not mind it, it’s not considered a chatzitzah. While Rambam and Tur define chatzitzah by this particular person’s view of it, R. Nathanson argues that since here she’s not allowed to remove it, it would also be defined as einah makpedet, that it does not bother her—since she will leave it on her person no matter what. That makes the barrier to the water reaching her entire body a mi’ut she-einah makpedet, a minority of her head that she does not wish to remove. As a chatzitzah, that at most is a Rabbinic problem; where it might be medically necessary, it’s a safek de-rabbanan, an unresolved doubt about a Rabbinic problem]. A Good Idea or a Medical Necessity R. Nathanson thinks Panim Meirot might have ruled less stringently about this woman anyway, because his case seems to be where the doctors had just told her that, going forward, it would be a good idea if she did not cut her hair. In that case, R. Nathanson suggests, the refraining from immersion was not an established medical treatment, and that therefore did not have enough halachic weight to allow going to mikveh with what Chazal decided should count as a chatzitzah. In our case, the cessation of her headache ever since she let the hair grow supports the doctors’ prescription; since they had also said that cutting the hair was dangerous to her health (in this case, and not Panim Meirot’s), it’s a safek sakkanah, an halachically meaningful possibility of mortal danger. That allows us to push aside Shabbat prohibitions, so it would seem clear that it would allow her to go to mikveh with what might be a Rabbinic chatzizah on her head. [He ignores a possible counterargument, that yes, we would push aside halachot to help her, but that we cannot make an invalid immersion valid. I think he’s relying on the fact that since it’s a Rabbinic problem, they clearly would have suspended their concern to help her in this life-threatening situation]. Truth is, even a rubo ve-eino makpid, a majority (of her hair or body) that doesn’t bother the person, is still only a Rabbinic issue for mikveh. Especially since we’re talking about iggun, the interruption of this woman’s married life, and kashim gerushin, divorce is “hard,” a way of saying that we avoid it if possible, we should be lenient on this question. Two further reasons to work hard to keep them together are that the husband will necessarily stop being involved in procreation [at least until he finds another wife] and that she is young, so if she finds herself divorced (and unable to remarry, since she cannot go to mikveh), we have to worry that she will stop caring about those issues and conduct herself promiscuously. For these reasons, he says she can immerse in the mikveh, and resume her marital life. Nullifying Idolatries Shu”t Shoel u-Meishiv Revia’ah 1;59 discusses bittul avodah zarah, when a Jew can or cannot render an object no longer an item of idolatry, of worship of powers other than Hashem. [The idea of bittul is the source of the practice of knocking off the nose or ear of statues; such a degrading act makes clear that it’s not an item to be worshipped. As important background, bittul only works while the item is not in a Jew’s possession; once the Jew takes ownership, bittul cannot happen, and the item has to be destroyed]. R. Nathanson mentions that on the twelfth of Av of 5613, he was learning Avodah Zarah, and reached pages 52-53 [He is the only respondent I’ve encountered who includes these kinds of biographical facts, with dates. He doesn’t just tell us what he realized while learning Avodah Zarah, he often tells us what date he was learning it]. The Mishnah says a Jew cannot be mevatel an item of avodah zarah that belongs to a non-Jew. When the Gemara says that’s obvious, it explains that the Jew owned the item in partnership with the non-Jew, and we therefore might have thought his bittul would work, since he had some ownership stake in it. For all its brevity, the responsum quickly becomes a technical discussion (Bach Orach Chayyim 586 assumed it is impossible to take possession of an item that belongs to someone else, and Magen Avraham disagreed based on our case. Rava says a Jew’s inability to nullify the avodah zarah of a non-Jew is out of fear that the Jew will pick up the item, thus taking possession of it and making it an avodah zarah that belongs to a Jew. But since the case is where a non-Jew owns it, that should be impossible.). The back and forth is enlightening for those involved in that topic, but for our purposes, I want to note only two points. First, R. Nathanson tells us he, too, had had Magen Avraham’s problem, and had written in his notes on Shulchan Aruch that Rashi makes clear that lifting an item only constitutes an act of acquisition when the item is hefker, ownerless. (When he was younger, he took notes on or in his Shulchan Aruch, and remembered those notes years later). The other point of the back and forth that I did not want to leave unreported is that R. Nathanson understands the Gemara to assume that a non-Jew can effectively nullify a form of idol worship even if not an adherent of that cult or sect. (In his example, even if this non-Jew worships Pe’or, s/he can nullify a Markolis. [I find the whole discussion of nullification interesting, since it means that halachah separated the odious religious aspect of the item from its beauty aspect. As long as the first aspect had been gotten rid of, a Jew coul down the item and enjoy its beauty/ cultural value]. Subsuming Punishments Later in that volume, Shoel u-Meishiv Revia’ah 3;18, he notes that R. Yitzchak Shmelkes had made a suggestion to him on the twelfth of Av of 5613 [another example of his inclusion of biographical details]. When one defendant is convicted of two crimes, the principle of kim lei be-derabbah minei says that the more significant punishment overwhelms the less significant one [that’s a too-brief summary of an issue that has generated much discussion; it’s not only about punishment, for example, because even if the perpetrator acted be-shogeg, unwittingly, and will never receive the more severe punishment, s/he is still exempt from the lesser one]. R. Shmelkes had pointed out that if the two punishments are death and lashes, there’s another reason the defendant could not be subjected to both. Lashes require the community to evaluate the criminal’s ability to live through the punishment, and that doesn’t apply to someone liable for death anyway. If so, the Gemara’s case (where it had to invoke kim lei be-derabbah minei) must have been where the obligation in lashes came for one aspect of the act, and came first (so the person would have been liable), and the death penalty for another.  After discussion I have to skip, he notes that on Shushan Purim 5614 (more than seven months later!), he was learning Makkot 13b, where R. Akiva says that while a person who committed a capital crime will not also receive lashes, one who violates a karet prohibition will get the lashes (for that crime and/or another one he committed at the same time), since s/he might repent for the karet prohibition, and the Heavenly Court will accept that penitence (so that this person is not clearly receiving two punishments for the same act). That, too, leads to some discussion about whether it’s future repentance that’s being discussed, or existing repentance, in a way that would again take us too far afield. That, in fact, is my usual experience of R. Yosef Shaul Nathanson, that his responsa tend to be less about specific halachic questions than about broad topics he dealt with over the course of days, months, or years, and present his thought process along the way to his conclusion. It makes him difficult to bring into our orbit, but for the twelfth of Av, we were fortunate enough to see an halachic conclusion of his, that a woman could go to mikveh even though she seemed to have a lasting chatzitzah, and some thoughts about two other halachic topics, when items of idolatry can be nullified, and which punishments preclude or subsume others.  13 Av: Noda BiYehuda Opposing Lying Under Oath There’s little point in denying the existence of loopholes in Jewish law, including in how Jews interact with non-Jews (especially if the Jews convince themselves the non-Jews around them count as idolaters). There’s also much in Jewish law and thought to obligate a Jew to foster good working relationships with the non-Jews around them, certainly when Jews live among non-Jews in exile, subject to the power of the non-Jewish authorities and dependent upon them for all ordinary social services, including protection from those who would hurt them. The reminder of the two sides to Jews’ relations with non-Jews readies us to read Shu”t Noda Bi-Yehuda Mahadura Kamma Yoreh De’ah 71, dated 13 Av 5525 (1765). He was asked on behalf of the local ruler whether a Jew who holds a technically invalid Torah scroll is allowed to lie under oath. Before we start on the answer, we see suspicion on the part of the non-Jews, who worry the Jews around them are finding ways to lie under oath, subverting the court system [they’re either justified in their worry or falsely suspecting the Jews of these evasions, but we’ll never know which]. Biblical Proofs We May Not Lie Under Oath Noda Bi-Yehudah corrects the misimpression in the question, which thinks the Torah scroll is what forces the Jew to tell the truth. He tells his non-Jewish questioner the prohibition against swearing falsely comes immediately with the words “I swear...” Whether the person then promises to act in a certain way or to refrain from certain acts, or says s/he did or did not act in a certain way in the past, the words “I swear” mean a Jew must then tell the truth. The proposition was so doubted, R. Landau feels the need to prove his claim, starting with the Aseret Ha-Dibberot, the Ten Sayings [I used to write Pronouncements, but that’s a long word, until a student recently suggested Sayings, which is good enough], the third of which says not to take Hashem’s name la-shav, in vain. The Torah does not mention holding a Torah scroll as a condition for the prohibition. He gives many more examples of Biblical verses about oaths, none of which mention holding a Torah scroll as an issue. [I often skip repetitive material, but here I am going to review all the examples because, first, many of us unfortunately need a reminder of how seriously the Torah insisted on our being true to our word, at least when we swear. Second, his offering so many examples shows how serious a worry the issue was: it apparently wasn’t reassuring enough to tell his Christian questioner the Aseret Ha-Dibberot requires Jews not to lie under oath. He had to take a tour of Tanach to make sure he had made his point.] Vayikra 5;4 speaks of a person taking an oath, using the phrase le-vatei vi-sefatayim, to express with one’s lips, focusing on the spoken word; Vayikra 19;12 calls a false oath itself a chillul Hashem, a sacrilege of the Name. In neither case does the Torah refer to any other condition of the oath’s full effect, such as holding a Torah, valid or not. A sotah ceremony had many other aspects to the suspected adulteress’ oath—Bamidbar 5 mentions the kohen taking earth from the Mishkan grounds, water from the laver, and a barley flour offering, but no Torah scroll. Bamidbar 30;3 prohibits violating one’s promises, obligating the Jew to do all s/he vowed. Throughout Tanach, Before and After the Torah Was Given Prior to matan Torah, the Giving of the Torah, we are told of people taking oaths, with the full expectation they would be kept. Avraham and Avimelech swear to a peace treaty (as does Yitzchak with another Avimelech in the next generation). Ya’akov extracts an oath from Esav when the latter was selling his rights as first-born; as Ya’akov left Lavan’s house, the two swore not to pass a pile of stones they set up other than for peaceful purposes, and Ya’akov swears in the Name of the One his father Yitzchak feared. Yosef has his brothers swear to return his bones to Israel when Hashem redeems them from Egypt. The rest of Scripture includes stories of oaths understood to obligate the oath-taker regardless of the absence of a Torah scroll. In Yericho, the spies swear to Rachav they will save her and her family, and they clearly were not in possession of a Torah scroll. R. Landau feels the need to point out they were undercover in a non-Jewish city, so there was no Torah present or available. Later, he similarly notes Boaz swore to Rut to take care of marrying her when they were out at the harvest area, with no obvious scroll, and David and Yonatan swore to each other while hiding their interaction. Yet all assumed the oath obligated them fully. After Yericho is conquered, Yehoshu’a tells the spies to go to fulfill their oath, showing he (as the representative of the Jewish people) took this oath to be obligatory. The Pact with the Giv’onim Yehoshu’a 9 tells the story of the Giv’onim, who tricked leaders of Benei Yisrael into swearing a pact with them, thinking they were far from away. The pact itself violated Torah law, since Devarim 20;16 required the Jews to kill all the members of the nations who lived in the Land, yet the Jews kept to the pact, despite the anger of the populace with their leaders’ misstep. R. Landau then shows there was no chance a Torah scroll was included in the oath-taking, since the leaders did not even consult with El’azar the High Priest (verse fourteen says they did not ask Hashem whether to commit to this peace treaty; R. Landau assumes their failure to ask El’azar what to do proves they also did not hold a Torah scroll, a linkage I am not convinced would be true today. I can easily imagine Orthodox Jews acting as they were sure halachah required without bothering to ask an halachic authority). Despite the lack of Torah scroll, no one thought they had room to disregard the oath [R. Landau does not take up what seems to me the thornier question of why they felt obligated by an oath where they were misled]. Halachic Sources Having expatiated on Scriptural sources at length (I assume because his non-Jewish questioner knew those sources as well, so the argument would ring truer), he mentions halachic sources which confirm his view is normative among Jews. Rambam, Laws of Oaths, lists four types of oaths, all of which a Jew must fulfill, and in none of which he mentions holding a scroll. Yoreh De’ah 210;2 records a dispute about an oath taken in a dream. Rashba thought the person who saw himself take an oath in a dream must fulfill it when s/he wakes up, where Rosh held an oath must be taken verbally, with full intentional assent, neither of which are true of dreams. Once again, nowhere in the discussion are Torah scrolls mentioned. Kinds of Scriptures to Hold For those who do hold onto a Torah scroll, R. Landau points us to Yoreh De’ah 237;6, where Rema says holding anything written in ketav Ashurit, the script used in writing a Torah scroll, counts as a serious oath, even if the writing is chochmah chitzonit, on a non-Torah topic. Shach there tells us Maharam Mintz thought placing one’s hand on the item counted the same as holding it [perhaps a precursor of US courts’ asking witnesses to place one’s hand on a Bible while taking an oath]. Kinds of Oaths Where a Torah Is Held Jews sometimes require holding a Torah only to impress the seriousness upon the person taking the oath, says Noda Bi-Yehudah, and not for all oaths, either. A shevu’at heiset is an oath the Rabbis instituted for when one Jew completely denies a claim against him; Torah law accepted the defendant’s full denial, barring any supporting evidence on the claimant’s side. Yet were we to find out the defendant had lied, he would incur the same reaction as one who swore a “more serious” oath falsely, as laid out in Choshen Mishpat 34;5. Furthermore, while Choshen Mishpat 87;15 only begrudgingly accepts holding an item other than a Torah, Rema allows holding any item on which Hashem’s Name is written. He also says a Torah scholar can hold tefillin as a first choice, and Shach says anyone who wears tefillin every day counts as a Torah scholar for these purposes. Already by Noda Bi-Yehudah’s time, just about every ordinary Jew did so, which meant holding tefillin while taking an oath was a generally acceptable option. Torah Scrolls with Problems So far, Noda Bi-Yehudah has argued a) an oath obligates a Jew fully regardless of whether s/he is holding some sanctified item, and b) those who hold items need not hold an actual scroll. Now he denies the relevance of a technically invalidating aspect of a scroll as diminishing the scroll’s hold on our fear as we take an oath. When a Torah scroll has a problem (a word has been rubbed out, for example), we fix the problem and return to using the scroll. We do not require any kind of resanctifying of the scroll, which tells Noda Bi-Yehudah it always retained the earlier sanctity. Too, halachah tells us a Torah retains its original sanctity (in terms of violating Shabbat to save a scroll from a fire) as long as eighty-five letters are left in it [for reasons he does not elaborate here; see Shulchan Aruch Orach Chayyim 334;12], which the kinds of scrolls under discussion certainly have. In fact, each of the five books of the Torah has sufficient sanctity for the purposes of even those oaths where we would hold a Torah—we do not read from them in public only for reasons of communal honor, but the sanctity of any one section of the Torah suffices. Since our scrolls have all five, the likelihood each of the five has a problem is vanishingly small. When we say a Torah scroll is invalid, we mean in terms of reading from said scroll in public (he in fact thinks that if we encounter an error, we do not need to take another Torah out right then, and also thinks we put it aside only to be sure the owners fix it, not because it’s unusable); in terms of its hold over our truth-telling in oaths, nothing has changed. Towards the end of the responsum, he says he’s gone through much of this material only to accede to the request of the honored personages who posed the question. Fundamentally, he thinks each of the sources he’s cited prove his point; taken together, each independent of the other, they make clear the falsity in any claim by Jews to a right to lie under oath, with or without a Torah, valid or not. . 14 Av: A Premature Remarriage R. Yitzchak Elchanan Spektor was one of if not the foremost rabbinic authority of the late 19th century. Ein Yitzchak 1; Even HaEzer 43 records the response he wrote, on the fourteenth of Av, 5626 (1866), about a woman who remarried based on the testimony of a thirteen year old, who claimed to have heard a non-Jew telling of two Jews who had been kidnapped, taken to a forest, and killed. One of the Jews in the story was clearly identified; the other had the same name as this woman’s husband, and the non-Jew had mentioned some identifying features, but not any specific enough to constitute an halachically valid identification. The assumption of the question is that a court would not have accepted that as sufficient to allow her to remarry. But she didn’t ask, the question is whether the court must require her to separate from this second husband. The questioner wanted to rule leniently, an instinct R. Spektor praises. Now he has to deal with the halachic technicalities to see if he can support that instinct. The Physical Maturity of the Jewish Witness A valid witness in halachah ordinarily has to have matured to adulthood physically as well as chronologically. This boy was not checked for that at the time his testimony was taken, but R. Spektor thinks there is still room to accept his evidence. He notes that Ran and Maggid Mishneh think a minor is believed to say that a woman who had been taken captive was not raped (necessary in order to allow a kohen’s wife to return to that marriage once she was freed), all the more so that they would accept the minor’s testimony regarding the death of a missing husband. After all, we do not accept a non-Jew’s word about a captive woman, even when that non-Jew is מסיח לפי תומו, telling a story without realizing why we care about its details, but we do accept such revelations about a Jew’s death. R. Spektor further notes that the second view in Shulchan Aruch Choshen Mishpat 7;3 accepts a thirteen year old boy as a judge in monetary cases even without proof that he’s reached physical maturity. While the Tumim (R. Yonatan Eybeschuetz) held that was because the need for three judges is only rabbinic, R. Spektor disagrees, and says that Torah law necessitates three judges. Yet the thirteen year old qualifies; that, he thinks, is the consensus of later authorities. A Thirteen Year Old’s Authority If a thirteen year old can judge, and a woman cannot, and yet a woman is believed as to the death of her husband, certainly the teen would be. This is all the more true since some rishonim seem willing to accept the testimony of an actual minor, let alone here, where our doubt stems only from the failure to check the minor’s maturity. And the woman has already remarried. The Gemara enunciates an חזקה דרבא, a presumption that children who reach the age of majority have also attained the requisite physical maturity. Once so presumed, we are not obligated to worry about the minority who do not fit that profile; if so, this thirteen year old’s testimony is valid, and she can stay married. R. Spektor supports that by noting that some rishonim allow a woman to stay in her second marriage wherever the worry about whether the first marriage ended is an unlikely minority case, including if the husband disappeared in מים שאין להם סוף, an ocean whose ends we cannot see. What Makes a Majority View? A side issue is whether we can call it the consensus view if authorities’ reasoning differs (Shach to Choshen Mishpat 25 had said we cannot). In our case, some authorities felt that the possibility that the boy had not reached physical maturity was so uncommon as to be insignificant, while others thought that even if it was common enough to matter, she was still allowed to stay married once she had done so. R. Spektor says, first, they’re all still basically relying on the majority of thirteen year olds’ having reached sufficient physical maturity. Besides, Shach’s comment applied to Biblical issues, not rabbinic ones; in rabbinic concerns (which is what we have here), we can group supporting authorities even if they differ on the reasons for their ruling. The Words of a Minor or a Non-Jew R. Spektor also suggests room to accept a minor’s testimony on these issues. Taz to Even HaEzer 17;9 says that a child who already understands the basics of ownership and transfer of possession—somewhere between the age of six and majority-- can testify who is a brother of the deceased for the purposes of yibum or chalitzah. If so, the minor should be able to verify the death of a husband. In our case, however, the minor didn’t see it, he’s reporting someone else’s words. In those other cases, one factor allowing us to believe the minor was that his story could eventually be proven true or false; with the minor reporting what he heard, even if the allegedly deceased man shows up, he might still have heard that from the non-Jew. That makes us less able to accept his word. But, as R. Spektor already said, we don’t here have to assume the boy is a minor. What the Non-Jew Tells Us We do have to wonder whether we’re allowed to believe the non-Jew, once we grant that the boy has told us what the non-Jew said. In this case, he identified one victim fully, and the other Jew, a R. Yehoshua, with less clarity. This woman’s first husband, named Yehoshua, was known to have been traveling with that other Jew, and to have been captured with him. Maset Binyamin 44 (1530-1620) ruled that if a non-Jew told us the exact identity of one member of a group and that the whole group had been killed, we are allowed to assume the deaths of anyone we know to have been part of that group (we don’t have to worry that some members of the group split off before the rest’s sad end). Let’s pause to remember centuries when Jews encountered such situations frequently enough to have established law on what happened when a whole group was killed, but the identity of only one victim was well known. And hope that we never are forced to deal with such situations in our lives or in the lives of people we know. Unfortunately, Taz did not accept that view, so R. Spektor finds another route to leniency. Noda Biyehuda Mahadura Tinyana 55 ruled that a medium identification sign is better than knowing the father’s name. In our case, while the non-Jew didn’t know the father’s name of the second victim, he did know the whole group had been put to death, and knew several lesser identifying facts about the deceased. All of that, R. Spektor argues, is as good as knowing a last name. What Counts as War? One last sticking point is that in times of war, we are more exacting about the signs we require—since so many people are being killed, we worry someone very similar to the person we are concerned about was killed. Although this happened in a time of war (as of 1864, R. Yitzchak Elchanan was the rabbi of Kovno, in Lithuania; in 1863, an insurrection had started in Lithuania and Poland; this question seems to refer to an event that happened in the course of that insurrection), and the men reported dead had left with the plan to fight any enemies they encountered, their demise came at the hands of highwaymen, not fighters in that war. For that reason, R. Spektor rules that it can be treated as an ordinary death case, requiring only the lower standard of identification. Sum total, he agrees that this woman can stay with her second husband. More, he believes that the testimony in this case sufficed to allow her to marry—he isn’t allowing this after the fact, he’s acknowledging that she had enough evidence and information to remarry in the first place.  15 Av: R. Uzziel on Seeing a Sefer Torah Dropped When I was growing up, everyone knew that dropping a sefer Torah meant everyone in the room had to fast for forty days (when I first heard that, at maybe seven years old, I couldn’t understand how people could fast forty days and nights straight). I hadn’t heard otherwise until this series made me aware of Shu”t Mishpetei Uzziel 1;Yoreh Deah 19, from fifteenth of Av, 5694 (1934). R. Uzziel was responding to an essay he received from R. Yisrael Yehoshua Hertzberg, rabbi of the business district of Tel Aviv. One Shabbat morning, in one of the shuls in that district, the Aron Kodesh was so crowded that as they took out one Torah, another one fell to the ground, breaking the atzei chayyim, the wooden staves around which the parchment is wrapped. R. Hertzberg’s essay explained his ruling that they should not fast, should give charity instead. They should also raise the money for repair of the atzei chayyim, and build a larger Aron, so there be no risk of a repeat occurrence. Invited to share his view, R. Uzziel disagrees that seeing a Torah dropped ever leads to fasting. Keri’ah for the Destruction of a Sefer Torah Moed Katan 25a bases its assumption that one has to tear one’s clothing if present at the moment a person passes away on the fact that it’s similar to witnessing the burning of a Torah scroll. The Gemara takes for granted that one has to tear one’s clothing in that latter situation, and—from the comparison to death-- even if the person bore no responsibility for the tragedy. There’s no immediately obvious reason that wouldn’t apply to all the ways a sefer Torah could be destroyed, but Mo’ed Katan 26 (and Yoreh De’ah 340;37) limited it to burning by human action (not in an accidental fire; some human being decided to burn it), because that was the case in Scripture upon which this halachah was based. That includes giving it to someone who would then destroy it, even if the person giving it hadn’t realized that was what would happen. But a sefer Torah destroyed negligently would not necessitate keri’ah. Tosafot cited a Yerushalmi that limited keri’ah further, where a Jewish king destroyed the scroll, since that was the case in Scripture, while Rashi’s reading of the Bavli had it that any intentional destruction leads to keri’ah. They agree that an accidental burning does not necessitate a reaction, which tells us that the keriah is a reaction to the human element of the event, the fact that people could mistreat a sefer Torah so deliberately, not the fact of the tragedy itself. Shach thought that would include a non-Jew’s destruction of a sefer Torah. R. Uzziel disagrees (with the Shach!), because the Gemara paralleled the burning to blaspheming, which only leads to keri’ah if it’s a Jew that does it. While it’s true that Taz rejected the Yerushalmi’s claim that it has to be a Jewish king, R. Uzziel thinks it does have to be Jews. For accidental or negligent burnings, some atonement would be needed, but not tearing clothing. There’s also no obvious reason that we would move from keri’ah to fasting or giving charity. A Fallen Scroll When it fell to the ground but was not torn, there’s clearly also no need to tear clothing, as the Taz wrote, in 340;2, that the similarity between death and the destruction of a sefer Torah is in the great loss and trembling fear caused by the incident. If the Torah “just” fell, there’s should be trembling fear over witnessing such a terrible event, but there is, thank Gd, no loss, and therefore no need to tear. Repentance and charity, to atone for a wrong committed, should be enough. Supporting his view, Chida ruled that a witness to a Torah’s falling doesn’t have to fast, unless the rabbi of that city decided to make a special rule to emphasize the significance of the event. He added that no obligation to tear means no obligation to fast, since that’s just a custom. R. Hertzberg had argued that the halachah that one should not hold tefillin or a Torah while praying—Rashi explained it as being a distraction from prayers, since the person has to focus on not dropping those items—showed that were the person to drop them, s/he would have to fast as atonement. R. Uzziel disagrees; it shows that it would be disrespectful, requiring atonement, but not necessarily tearing one’s clothing or fasting. Mishpetei Shemuel on Dropping Items Shu”t Mishpetei Shemuel 12, referenced in Magen Avraham 44; explicitly addressed dropping a sefer Torah. R. Uzziel says that since that responsum builds off of the burning of a Torah, it, too, has to be where someone threw it to the ground on purpose, not that it fell, even if negligently. [In this case, I looked up the Mishpetei Shemuel, a 16th century Italian and Greek rabbi. He writes that tefillin have sanctity, and letting them fall from one’s hands is a zilzul, a disrespect, and then cites the Gemara’s discussion of tefillin that were burned. He knows the Gemara refers to where it happened bi-zro’a, by deliberate action, and that that’s what obligates tearing twice. But who would doubt, he writes, that if the Torah just fell from one’s hand that he would have to fast? To me, he seems to mean that fasting is less serious than tearing clothing, so that we might feel the need to fast even if we are not obligated to tear our clothing. R. Uzziel seems to equate them. Aruch HaShulchan Orach Chayyim 44;3 and Mishnah Berurah 40;3 report common custom to fast or give charity if tefillin were dropped]. Taking Proper Care of a Torah R. Uzziel thanks R. Hertzberg for reminding him of Yerushalmi Sotah 7;4. While the verse arur asher lo yakim et divrei haTorah hazot is most simply read as “cursed is he who does not uphold the words of this Torah,” the Gemara said it also is about how to handle the Torah itself in shul. One manuscript version of that Gemara made it sound like the Gemara took the verse to establish a specific obligation of care that a Torah not fall. Failure to take that care brought an arur, a curse that could inspire the sense of a need to fast as atonement. As R. Uzziel notes, we have a different version of that same Gemara. Ramban took that version to require lifting the Torah so that everyone in the synagogue could have a chance to publicly assert their belief and agreement that this is the one given to Moshe. If so, there is once again no specific source requiring fasting for unintentionally dropping tefillin or a sefer Torah. Especially Not on Shabbat A last quick point is that if any of this happens on Shabbat, even presence at a death, Radbaz and Chatam Sofer agreed there would be no rending of clothing, even after Shabbat, since keri’ah is only bi-she’at chimum, in the heat of distress. Since we don’t tear keri’ah on Shabbat, it’s pushed off forever. [Today, when many mourners tear only at the funeral, we seem to be defining that as their she’at chimum, their time of heated distress]. Transferring that back to a fallen sefer Torah, it offers one more reason that there is no need to fast, just find ways to atone for the certainly unwitting, perhaps negligent, mistreatment of a Torah scroll.  16 Av: Netziv and R. Yitzchak Elchanan on When Marriages Do and Don’t End [Click for the audio version] To divorce his wife, a man must have da’at, the mental competence to authorize the court and scribe to write and deliver the document of divorce on his behalf, Shu”t Meishiv Davar 4;48, dated 16 Menachem Av 5636 (1876), records R. Naftali Tzvi Yehudah Berlin (Netziv)’s response to a rabbi who had overseen the writing of a get but now questioned the husband’s abilities. This man was ill when they spoke to him about the get [a childless man would frequently divorce his wife on his deathbed, to help her avoid the need for a chalitzah, a ritual freeing from levirate marriage, which could present technical problems if the brother in law was far away or likely to make problems], coming in and out of awareness, and later passed away. The rabbi turning to Netziv worried the man had not maintained the requisite mental capacities throughout the time from when he had told the court to write the get to when it was given to the wife. Indirect Evidence of a Competent Mental State Netziv knew about the case from other sources as well, it seems, since he says he had heard that the wife came to tend to her (now ex) husband after the delivery of the get, and he had pushed her away, telling her she was no longer allowed to act so intimately with him. His insistence on more proper behavior between them shows he understood she was no longer his wife. We also know the man had been aware of what it meant to give a get when he authorized it, since a court always tests a husband’s mental competence before accepting an authorization. Two times of established mental competence create a chazakah, a situation we are allowed to assume continued from one point to the next, barring evidence to the contrary. It doesn’t prove he didn’t lose and regain his faculties, but halachah allows us to ignore the possibility unless we have some reason to think that’s what happened. The other rabbi still worried he and his court had done too perfunctory a check to authorize the writing of the get, had found only da’ata kelishta, weak understanding, which might not be a high enough level to set up a chazakah. Yevamot 113 seemed to think a person must have da’ata tziluta, clear understanding, to be treated as a fully competent adult. The Power of Baseline Competence Netziv says Yevamot discussed a cheresh me-ikara, a deaf-mute born that way (who has never created a baseline assumption of da’at). Once a person has ever been clearly in their right mind, the standards change. Gittin 70 speaks of a mortally wounded man (his neck was cut, with no chance he could live), who signaled bystanders to quickly write and deliver a get to his wife. He cannot communicate verbally, yet the Gemara assumes he had da’ata tziluta, a clear mind, says he was just weakened by the wound. Rashi says it was physical weakness, which would not be relevant to our case, but Netziv is sure Rashi would have agreed with Tosafot, who were sure the Gemara included mental weakness. Someone we know to once have been in his right mind, who then weakens, will be treated as if he is still in his right mind, although weakened, until we know differently. Since the man in this case could still speak to the court when he authorized the get, Netziv saw no reason to adopt a stringent view without some direct evidence he was losing his faculties (as Beit Shemuel says on Even HaEzer 121;11). A Possible Condition on the Get The deceased had asked for two hundred rubles (weirdly enough, I found a website which estimates the value of 3000 rubles in 1878—an amount important to Dostoyevsky’s The Brothers Karamazov—at $51,000 today; if so, 200 rubles would be about $3400), which he did not receive before he died. Had he made the money a condition of the get, the divorce is not valid. Netziv’s questioner worries about a view of Ramban’s, who though a gilui da’at, any way of making one’s wishes known, was enough to make a condition on an act. Netziv thinks Ramban’s disputant, Ba’al HaMa’or, must have agreed with Ramban, since his logic was so convincing. According to both, if a person authorizing a messenger to act on his behalf makes certain wishes clear, the messenger cannot produce a valid act without fulfilling those wishes. But that’s only where the person himself did not then act. Here, the man gave the get himself, so he would have been required to reiterate his condition if he wanted it to remain in effect, and do so following all the technical rules for applying conditions to halachic acts (such as making it a tnai kaful, saying the condition in both the positive and negative, what happens if the condition is fulfilled and what happens if it’s not). Besides, we generally discount gilui da’at, inferences about what someone wants, in cases of divorce (Ramban was speaking about another situation). More, courts have the husband nullify any prior condition when giving a get, precisely to avoid any complications which might call its validity into question. Were he to have been insistent on the two hundred rubles, we still cannot be sure what he meant. It’s unlikely he wanted them for himself, since he was about to pass away; more likely, he wanted that amount donated to charity, to benefit his soul. Or, possibly, that that amount should go to his heirs (he had a living father). Netziv does not explain further, but I think he means the woman should give that sum to charity and to her former father in law, just in case the deceased did want that to be a condition. He does say there’s no way this condition interferes with our certainty she’s divorced, because once a man gives a woman a get, whatever conditions he intended to last beyond the act definitely need all the legal niceties of a tenai, a condition. The rabbi can rest easy the widow is a divorcee, permitted to remarry without chalitzah. A Woman Who Leaves the Religion, and Her Marriage That same day (not just the same date, as I usually do when I have two responsa in one day), 16 Av 5636 (1876), 130 miles away, Shu”t R. Yitzchak Elchanan 124 responded to R. Naftali Amsterdam’s question regarding a woman who had left Judaism and then returned. Either her new husband or the rabbi who had allowed her to marry her current husband claimed the act of leaving Judaism broke all her existing bonds and commitments, so she did not need a divorce from the man to whom she had been married before. No other rabbis accepted the idea, but the man refused to accept their perspective unless he was shown an explicit Talmudic statement to that effect. R. Spektor bemoans a world in which a Jew allows himself to take such a position [it’s not his place to doubt rabbinic authorities nor to tell them what sources he is willing to accept as proof]. In this case, it’s also silly, because a plethora of such sources prove the point. He mentions Sanhedrin 44a, which tells us a Jew remains a Jew despite his/her sins [so converting out has less halachic meaning than this man wanted to attach to it], and Yevamot 47b, which validates the kiddushin of someone who has left the religion [so his halachic acts still count]. Rashi attributes Yevamot’s rule to the impossibility of shucking one’s Jewish status. Once we know someone who left observance can create kiddushin, there’s no way the leaving would abrogate an existing kiddushin. Finally, the first Mishnah in Kiddushin lists the ways a woman can exit a marriage, which the Gemara sees as a complete list (and apostasy is not on the list; here, though, the counterargument would be to say the list was complete regarding halachically acceptable ways to end a marriage, not all effective ones). R. Spektor says he’s not going to bother to offer other proofs, since the principle is said clearly in too many places (he does point to Shulchan Aruch Yoreh De’ah 159;2, which prohibits borrowing at interest from an apostate—Shulchan Aruch does allow lending such a Jew at interest, but Rema disagrees, and it’s likely a kenas, a fine, on the apostate, rather than a claim that s/he no longer counts as Jewish). The responsum takes up one more issue, how to write a certain man’s name in a get, but this is as far as he goes with the topic that links his responsum to the one Netziv wrote that same day, how we do or do not end marriages in complicated situations.  17 Av: R. Pinchas Zvichi on a Shul In an Apartment I think R. Pinchas Zvichi is the only respondent in our series who is still with us in this world. He is a student of R. Ovadya Yosef’s, and I stumbled across one of his other responsa and found his presentation interesting. Unfortunately, most of my attempts to include him here have met with failure, since he writes at even greater length than his teacher. Shu”t Ateret Paz 1;2: Yoreh De’ah 9 responds to a question about where people do or do not need to take account of neighbors’ concerns or feelings (R. Zvichi appends a letter from 17 Av which questioned his ruling, the excuse to include the responsum here). A Minyan in an Apartment The original responsum was from 24 Tishrei 5753 (1992), about a minyan which had met for two years in a certain person’s apartment, consistently on Shabbat and Yom Tov, occasionally during the week as well. Someone had recently acquired the empty apartment underneath, and wants the minyan to stop, since it creates too much noise. As part of his complaint, he pointed to a nearby beit kenesset they could instead utilize (so he does not seek to deprive them of a place to pray; he claims they have an easy option which would not inconvenience him). The person raising the question adds three points of information he thinks are part of the calculus of the question: 1) none of the neighbors has complained until that point, 2) the minyan holds Torah classes or lectures, but 3) there is in fact a nearby yeshiva which also has regular services (so they could theoretically move all their activities there). What’s the halachah? The Ripples of a Rule About an Elementary Teacher R. Zvichi starts with Rambam’s Laws of Neighbors 6;12, where Rambam records the Gemara’s special rules for a melamed tinnokot, a man who teaches young children. Such a man may gather the students to his home, regardless of whether the students’ noise disturbs the sleep of the neighbors. He rules similarly in Laws of Torah Study 2;7, both rulings based on Baba Batra 20b, where Rava sees this idea as a part of the takkanah of R. Yehoshu’a b. Gamla. R. Yehoshu’a had instituted universal public education, obligating every town with a minimum number of children to set up a melamed tinnokot. Part of the rule was the teacher could set up shop in his home and the neighbors could not complain. The original rule addressed only elementary school teachers, but Tur Chosen Mishpat 156 added any public performance of a mitzvah, with the examples of distributing charity or hosting a minyan. Tur’s ruling does not quite settle our question, however. R. Zvichi thinks the matter was disputed by rishonim. On the other side from Tur, he mentions Ramban (cited by Beit Yosef), who thought the Gemara’s reference to a sofer mata (to whose new presence the neighbors could object) to include any scribe. Ramban thinks those who perform a mitzvah can do so elsewhere as well, so they have no right to insist on inconveniencing the neighbors. R. Yehoshu’a b. Gamla carved out a complete exception for elementary teachers, not any other mitzvah. Beit Yosef also cited Rabbenu Yerucham, a source for Tur’s view; Rabbenu Yerucham thought sofer mata in the Gemara at hand meant only one who writes commercial documents. The neighbors could object to such a scribe, since there was no mitzvah element to his writing. A scribe who writes scrolls of Scripture (and anyone doing any act of mitzvah, he says) are the same as an elementary school teacher for this halachic purpose, so the neighbors could not object. (A few lines later, R. Zvichi points us to ‘Erech Ha-Shulchan, by Mahari Teib, an early nineteenth century Tunisian rabbi. ‘Erech Ha-Shulchan said Ramah and Ri Migash and others agreed with Rabbenu Yerucham, putting Tur’s ruling on a solid footing). Shulchan Aruch seems to accept this latter view as well. He (and ‘Erech Ha-Shulchan) seem to think neighbors cannot object to any mitzvah activity, regardless of whether the people involved could equally perform their mitzvah in a less intrusive location. Where Property Values Are Not Allowed to Matter Accepting the ruling does not solve all our problems, however, since we would need a source. The Gemara certainly only mentioned an elementary teacher, the only case R. Yehoshu’a b. Gamla addressed [the contrasting example of sofer mata, even if we read it as only referring to a commercial scribe, still does not tell us a sofer sta”m, one who writes mitzvah documents or scrolls, does have the same rights as a teacher]. To extend the abrogation of neighbors’ rights in other cases of mitzvah activity, we need some source. Chatam Sofer’s comments on Baba Batra offer a way. He thought the Gemara assumed the neighbors could never object to the presence of acts of communal obligation within their shared space. R. Yehoshu’a b. Gamla did not innovate the idea the neighbors could not object to an elementary teacher in their midst; he innovated our viewing the elementary teacher as fulfilling a communal responsibility. By Torah law, only a father must ensure his son’s education, but R. Yehoshu’a b. Gamla added a communal element. Once the community also had the obligation to educate the young in its midst, the teacher joined the pre-existing rule which stopped neighbors from objecting. Once we understand the source of the rule, we realize halachah is expressing a set of values about communal mitzvah observances. Our joint investment in such mitzvot means the neighbors would have to bear even a decline in property values. ‘Erech Ha-Shulchan thinks a landlord would have the same problem, would not be allowed to refuse to rent to an elementary school teacher regardless of the hit he will personally take because of how much less he will be able to get for his nearby rental properties. The Power of Torah Study Another sefer, Minchat Tzvi (by R. Tzvi Spitz, a contemporary dayan), was sympathetic to the possibility of praying elsewhere. R. Zvichi has problems with the idea which need not be elaborated in our case, since the minyan also holds shi’urim, Torah classes. Regarding Torah, we never require people to go elsewhere, for fear we will discourage participation (of those who live close to where the shi’ur is currently but will not walk a block or two). R. Zvichi mentions a phrase from Avodah Zarah 19a for support, a person only learns where he likes [surprisingly, since in context the Gemara meant topics the person likes, where R. Zvichi seems to extend it to physical locations of study]. Once the group can insist on holding their shi’urim in the apartment, minyanim have to be included, so as not to inconvenience the attendees (and teachers), to force them to find another place for public prayer. Prayer services become part of our obligation to foster Torah study. The minyan also got there first, with no complaints from anyone else. Their presence means the new tenant/owner knew about them when he bought (or rented) the property (although R. Zvichi takes back the idea immediately, since the new owner can say he did not know, and had no responsibility to ask, since private minyanim are not common. After his signature, R. Zvichi notes he has ruled based on pure halachah, as he was asked, without including any element of secular law, although such laws are also relevant, since dina de-malchuta dina, the law of the government has halachic force as well. The Special Status of Torah Study In response to the letter of 17 Av which helped us include the responsum in our series, R. Zvichi differentiates between Torah study and other public mitzvah observances. For all he has before cited Chatam Sofer’s idea of a general requirement for neighbors to bear such activities as long as they fulfill a public obligation, R. Zvichi does not see a source for such an idea in all the cases where the mitzvah is and can be fulfilled elsewhere. Once it’s already being taken care of by the community, the decision to add another locale at which this mitzvah will be fulfilled counts as a private and personal mitzvah, not a communal one. Torah was different, directly addressed by R. Yehoshu’a b. Gamla, so Torah not be forgotten (a concern which applies outside the parameters of elementary education). To avoid Torah being forgotten (and to fulfill yagdil Torah ve-ya’dir, Torah be greatened and magnified), each location counts as part of the communal need, obligation, and requirement. R. Zvichi also thinks ease of performance works in the neighbors’ favor. Halachah did not allow needlessly inconveniencing people, so if the communal mitzvah can easily be taken care of in another location, it obviously must. Torah differed because halachah did not want to cause people any extra effort to study (I think for fear they would forego it, which we do not worry about as much in other areas). Ending with a Call for Compromise For all he had shared his idea with many of the great scholars of Yerushalayim, who had agreed with his ruling, he had recommended the members of the minyan find another course, since insisting on their legal rights could lead to bitterness, strife, and division. Baba Metzi’a 30b warns us of the mistake in insisting on our legal rights, sees such legalistic behavior as possibly the precipitating cause of the destruction of Jerusalem. Sometimes, we must forego our legal rights, R. Zvichi urged them. They had followed his advice and a little while later found themselves rewarded with a permanent location. He closes with good wishes for them, having reminded us both of a specific halachic ruling and the broader truth that our rights are not always what we should follow in picking our courses of action.  18 Av: R. Herzog on a Misdated Get For legal documents to be valid, the people writing and executing them must follow certain rules. In the summer of 5710 (1950), R. Yitzchak Herzog responded to a question from England, Shu”t Heichal Yitzchak Even Ha-‘Ezer 2;43, about a get, a bill of divorce, which should have been dated 18 Tammuz but was mistakenly dated 18 Av (which is why I am using it here, despite the responsum itself being dated 2 Av). A Difficult Husband, a Difficult Marriage, a Difficult Get The divorcing husband had been sentenced to seven years in prison, and his twenty one year old wife wanted out of the marriage because of how he had mistreated her in their short time together. True to the form predicted by his imprisonment, he had refused to cooperate. Once he finally relented, the court and scribe visited him in prison, secured his authorization to write and deliver the get, wrote the get in his presence, and then left. They arrived back in town only to discover the scribe had written the wrong date, as we said above. They could not redo the get, for two reasons: first, the husband had angrily told them never to come back on their way out and, second, should he hear the first get had an issue, they feared he would nullify it and leave them with nothing. The people writing R. Herzog saw two problems in giving the get. A postdated document is called meuchar, delayed, and halachah worries about the possibility of incorrect outcomes, such as misunderstanding a woman’s remarriage as adulterous or assigning property incorrectly. In this case, the misdating also meant the document contradicted itself, since the scribe was thinking of 18 Tammuz, a Monday, but mistakenly wrote Av, a Tuesday. So the get referred to a day which did not exist that year, Monday, 18 Av. Witnesses to Validate a Get Meuchar R. Herzog reassures his correspondents they are dealing with a she’at he-dechak, a case of extreme duress, and will therefore be allowed to use all possible leniencies. One such starts with remembering that the Rabbis required putting a date on a get, not the Torah itself, as R. Herzog infers from Rambam having called a get without a date pasul, which he had told us (Laws of Divorce 2;7) meant a Rabbinic invalidation. (R. Herzog assumes Rambam’s calling such a get pasul means a court would not try to separate the woman from her second husband if she remarried without any further get. I’m not sure if he brought that up simply to make clear this is Rabbinic, or was implying the worst outcome here would be she would remarry, and we are not required to completely stop that option). R. Herzog also agrees with Machaneh Yehudah (I think a book of responsa published in 1903), we said we can rely on the view of Rashbam, that ‘edei mesirah, the witnesses to the delivery of the get, can validate a get, despite invalid ‘edei chatimah, witnesses who sign the document. There was some question about Rambam’s view, but he seems to have thought ‘edei mesirah could overcome a get meuchar problem. Other Reasons the Get Might Still Be Valid When a man sends a get to his soon to be former wife, he appoints a shaliach le-holachah, a messenger to deliver the get, and the get cannot take effect until the woman receives it. Rashba said such cases would always depend for their dating on the messenger, not the witnesses signed on the get, since no one could know when the messenger would find the wife to deliver the get. For our case too then, the problematic date on the document should not bother us. He offers several more reasons to think a get meuchar should be acceptable: most authorities accept it after the fact, Ramban prohibited only out of doubt, Shulchan Aruch recorded the lenient view first, and then wrote yesh omrim, which we usually assume means he accepted the first view, and Maharam of Rothenburg invalidated a get meuchar which was torn up before the date written in the get. He did not blanket invalidate it, in other words. Later in the responsum, he adds that he had seen Sephardic authorities who took for granted what he has been saying, in difficult situations, a get meuchar is fully valid. The Pressure of Saving the Young Woman R. Herzog does know of authorities who think there’s a Biblical problem with a get misdated without the husband’s knowledge, since then the messenger is acting without the husband’s authorization. He rejects the view on logical grounds but also because no one among the earlier authorities mentions it, and he does not think they’d have left out such vital information. In an aside I find fascinating and revealing of his view of halachah, R. Herzog notes some books of novellae on the Talmudic tractate of Gittin insisted Rambam would invalidate a get meuchar completely, and said it was the right way to go. R. Herzog compliments their insights, but says we do not need to accept their view, because they were not speaking about an actual case, nor were they confronted by a young woman threatened with being an agunah. Shulchan Aruch and others have long distinguished commentators from decisors, because poskim operate with a different level of responsibility. These rabbis are to be lauded for wanting to defend Rambam from Raavad’s attacks, but that does not mean we have to accept his view in practice. He also says he has many more thoughts on the intricate halachic questions of the get, thought about writing a book-length monograph to send to his correspondent, but the needs of the young woman mean he has to write this as quickly as possible. He hopes to send it another time. When to Give the Get There are three options for when to give this get: right away, on the eighteenth of Av, when it’s dated, or (surprise candidate) on the seventeenth of Av, since the scribe had written Monday. The reason to give it right away is to avoid the husband hearing the get had not yet been given, and nullifying it, and is what R. Herzog thinks wisest, unless they’re positive he will not hear. If they’re going to wait, he thinks people assume scribes are less likely to mistake the day of the week than the date, and therefore should give it on the seventeenth, and then rip it up the next day, the eighteenth (to worry for the view which invalidated a get meuchar which was ripped up before its actual date). Once the get has been given, he thinks they can and should approach the husband again, to see if he will authorize a new get, since she is already allowed to remarry. He will only be helping them avoid a certain tinge of unpleasantness, a worry about the minority views which completely rejected a get meuchar. Once he cannot stop her from remarrying anyway, R. Herzog thinks it’s more likely he will cooperate. Writing Another Get Even without a new authorization from the husband, there was room to suggest they could just re-write the get. When courts write gittin to be sent rather than delivered immediately, they often insert a clause whereby the husband says the court or messenger can write as many gittin as needed to produce a valid document. If so, they could write a new get here, based on the original authorization. If they did, they wondered which to give first. R. Herzog primarily thinks they need not give both, since the husband authorized the second, unquestionably valid, get at the same time as he authorized the first. There were rishonim who required giving both, but R. Herzog thinks that was only where the husband had not explicitly authorized as many documents as needed, so there are problems with either get. He changes his mind, however, because the husband might hear they had written a second get, might forget the language to which he had agreed (since he’s clearly not someone deeply involved with the halachic niceties of divorce), and call the get into question. Better to give both and avoid even uneducated claims about their get. He also thinks the husband’s clear distaste for having agreed—his warning to them not to return—might mean he has implicitly nullified his agreement to future gittin, despite the authorization being written in the original get. So they should give both, and the order does not matter. R. Herzog has given us a beautiful example of the halachic process, covering the legal details carefully and with acuity, while always keeping sight of the young woman whose happiness hangs in the balance. 19 Av: Introduction to R. Kook’s Mishpat Kohen One of the pleasures of this series has been “meeting” great rabbis. I have long known R. Kook a bit through his more philosophical writings, but his responsa are a revelation—written in a very different style [one I personally find more straightforward, clear, and accessible], displaying a completely other aspect of his greatness. The first published volume of responsa was Mishpat Kohen, on halachic issues related to the Land of Israel. On 19 Av 5697 (1937), R. Meir Berlin (later known as Bar-Ilan) signed his introduction to the volume, after which R. Zvi Yehuda Kook (R. Kook’s son) added some words, and then there’s an introduction by R. Kook himself. It’s an opportunity to hear from R. Kook at an early stage of his life, so I expanded our definition of responsa from a certain date to let us learn from this. R. Berlin’s Introduction R. Berlin says this is the first volume (of thirty), published by a group set up for that purpose after his passing (about two years earlier). The choice was not coincidental, because for all that R. Kook always incorporated halachah in his approach to issues, he was particularly connected to the halachot of the Land of Israel, especially the agricultural ones that had been relatively neglected when Jews were in exile. Laws that Jews had until then assumed would remain neglected until the Arrival of Mashiach had instead been restored to active involvement, and R. Kook was a significant factor in figuring out how those halachot should be applied. (Since I want to get to R. Kook’s own introduction, I am leaving out his quite beautiful and flowery expressions of enthusiasm over the growth of Jewish settlement in Israel, the new realities that presents to rabbinic decisors, and his praise of R. Kook—the kohen hagadol, the great priest—for finding a positive way forward). It’s a book, he says, that should become part of every halachic authority’s library. R. Zvi Yehuda’s Opening R. Kook’s son, R. Zvi Yehuda (who would go on to be an important figure in his own right), had done much of the editing of the volume, and his preface is dated five months later, the 18th of Av. He notes that his father had published only those essays, articles, or ideas that were needed at the time. In his later years, he agreed to publish his responsa and novella, so R. Zvi Yehuda went about editing a volume of his letters and Orot HaTeshuvah. The current volume would be important and valuable for the farmers of the new settlement of Israel. He (R. Zvi Yehuda) called the book Mishpat Kohen because the Torah tells us to go to a kohen for guidance on halachic issues, and because Ramban says the essence of Torah is in Israel (which is why Tanach refers to it as mishpat Elokei Ha-Aretz, the law of the God of the land). He makes some comments about the structure and footnoting of the book we can leave for another time. For R. Kook’s own introduction, R. Zvi Yehuda Kook took parts of Responsa 55 and 56 in the book, written in 5653 (1893), the fourth year of a shemittah cycle. Since the ideas he expressed are relevant to the book as a whole, R. Zvi Yehuda Kook placed it here. Healing Zion, Internally and Externally R. Kook starts by citing Rosh Hashanah 30a, where the Gemara points to Yirmiyahu 30;17, which bemoans Zion as “ein doresh lah, she has none who ask after her,” and infers that we are supposed to ask after her. Earlier in that verse, Hashem had referred to bringing aruchah and refuah to Israel, both of which seem to refer to healing. R. Kook differentiates between internal and external wounds. The former (including illnesses) are generally healed by ingesting something, like food, sort of within the ordinary workings of the body, the medicine fortifying the body in its better workings [this was probably a clearer claim in his time, when medicine consisted of naturally occurring substances; while those might not usually have been food, they were solids or liquids one ate or swallowed. With the advent of pills and poisons as medicine, it’s not quite as clinching a claim, but read on]. External wounds call for external treatments, either by cutting something off or bandaging it up [once we see that, the dichotomy is still applicable—internal ills are solved by ingesting, external ones by addressing the external issue]. There are, however, external problems whose source is internal, and those should be treated internally. When the verse refers to aruchah, that would be a word for those internal approaches to healing, with refuah for bandaging up wounds and the like. The destruction of the Beit HaMikdash caused open wounds, that it was burned to the ground, leaving us unable to perform many mitzvot, and exile, which took us away from all mitzvot that can only be fulfilled in and on the Land of Israel. The internal, less obvious, wound, is the loss of Torah. First, the Torah of these mitzvot, since we’re not practicing them anymore, and then Torah broadly, since the Sanhedrin would sit right next to the Temple and rule on all Torah issues that came before it. Besides, Yirmiyahu 9;12 quotes Hashem as saying that the essential cause of destruction was our abandonment of Torah, so a return to Torah will hasten that return. Studying the Torah of Israel as a Way Back That’s true of all Torah, but it’s especially true of study of mitzvot that depend on the Land and/ or are connected to the Temple (remember that he’s writing in 1893, as the rabbi of Zeimelis (in his time, it was known as Zaumel), in northern Lithuania, on the border with Latvia, eleven years before he made aliyah!). Then he goes metaphysical, with an innovative reading of Shir HaShirim Rabbah 2;5. The phrase “great is study for it brings to practice,” in context, was answering the question of whether it was better to study or to be actively involved in mitzvot. The answer (at the simplest level) seems to be that study will bring both. R. Kook agrees that that’s true at our level. But there’s a second level, chelek gavo’ah, the portion of Hashem’s, that Hashem’s job is to help us turn our study into practice. It’s part of the berit, the covenant, made with those who study Torah. If we learn these sections of Torah diligently, then, Hashem will help us put them into practice. On the other hand, neglect of these questions cannot but delay the redemption, since how can we return to Israel without having prepared by studying the law of the Land. Unfortunately, those laws are among the most neglected (when even the rest of Torah isn’t so studied, he adds). Chazal anticipated that people would question the utility of studying such laws when they were not ready to be practical, which is why Rosh HaShanah 30a reminded us to be doresh Tziyyon, to inquire after Zion. Nor did the prophet mean to limit the inquiry to Zion in general, but to include all its aspects, the Temple and all that had to do with the full settlement of the Land. The Torah of Israel’s the Medicine That shows R. Kook that what ails the Jewish people is a kind of external ill with internal causes (as he had started out discussing). That needs not an external bandage but the kind of ingested food or medicine that will heal the internal ill. By carving out time to study the areas of halachah regarding the Temple and the Land of Israel, we will be healing our abandonment of Torah, especially that most neglected part of Torah, and can expect/hope for a speedier redemption. I like introductions, is the truth, because they give us broader perspective than each chapter of a book. But I especially liked this one, because it seems to show a man making what we might think of as a wild guess (that the study of the Torah of Israel is a segulah, a merit, that will lead to a quicker return to Israel), that then came true eleven years later. Sure, a cynic could say he already intended to make aliyah, although I don’t know that there’s evidence for that. Even so, R. Kook as a young man in Lithuania set about studying areas of halachah few others were delving into, and consciously saw it as a metaphysical approach to healing exile, only to then find himself, eleven years later, in Israel itself. That’s the kind of segulah I like seeing in action.  20 Av: Chatam Sofer on What’s Included in a Partnership I recently heard a book on tape where the author urged prospective partners to lay out the rules and expectations of their partnership ahead of time. Shu”t Chatam Sofer 5; Choshen Mishpat 96, dated 20 Av 5596 (1836) shows us the kinds of arguments which can arise. A Partnership in Wool Two men set out to the market in Pest as partners to sell some wool. They hired a wagon together, and when one of them—called Nachum in the responsum—was offered more wool, Ya’akov agreed to partner on the new wool as well. Ya’akov went a step further, said the custom is when people partner in a wagon to go to market, they have agreed to partner on all the merchandise which comes their way on the trip. The problem arose once they arrived. They agreed to buy ‘orot, either hides or leather, to sell back where they lived, and Nachum told Ya’akov to go buy the leather. Once he did, Ya’akov told Nachum he would only agree to partner on the leather if Nachum paid him for the effort he had expended to find and buy the leather. Nachum said nothing. When they arrived back where they lived, they told the story to a trustworthy third party as just presented. They’ve come to court now because Ya’akov claims the leather is all his, since Nachum never joined the partnership. In court, Ya’akov has added a detail to their interactions; he claims he told Nachum to come with him to buy the leather, or else he would buy them for himself, not as partners. Were this to be true, when he asked Nachum for a fee after he bought the leather, he was offering Nachum one last chance to join the partnership. Who’s right? Summary Judgment for Ya’akov Chatam Sofer apologizes if he has not extended the proper accolades to the questioner, since he does not know him. [I don’t generally comment on the openings or closings of the responsa we study, to focus on the halachic content. Chatam Sofer shows us he worried his questioner would be insulted by his failure to observe what I would have thought was a formality. He does say the letter shows some of the writer’s Torah knowledge, and uses the beautiful Talmudic description of what was given at Sinai as oryan telita’ei, a three-fold Torah. Rashi to Shabbat 88a said the three parts were Torah, Nevi’im, and Ketuvim; as Ritva points out, Rashi’s idea assumes all of Tanach was implicit in the original Giving of the Torah. Ritva mentions two other stimulating possibilities, worth looking up, but which would take us too far afield]. On the substance, Chatam Sofer rules for Ya’akov; the best Nachum can do is pay for Ya’akov’s effort in finding and buying the leather (as Ya’akov had said back in Pest). Since Nachum seems to have argued Ya’akov also wanted to charge him more for the service than it deserved, Chatam Sofer says to have experts in the topic set the fee. The questioner apparently thought issues of possession and presumed ownership came into play (perhaps because Nachum was holding on to the leather?); we do not find out what they were, since Chatam Sofer dismisses them out of hand, and says he did not read those (lengthy) sections of the question, since they were not relevant. (He again rejects any role for tefisah, taking possession, or chazzakah, an established state of affairs, at the end of the responsum, which I think means the questioner had focused on those issues as the crux of the problem). Verbal Agreements and Partnerships To explain his reasoning, Chatam Sofer takes up a few halachic issues without directly relating them to our case, and then comes back at the end to show us how they apply. He starts with Rambam’s Laws of Messengers and Partners 4, where Rambam requires an act of acquisition to establish a partnership. Unless the act has occurred, either partner could withdraw, regardless of whether the merchandise has already been purchased (if the profit’s going to be more than expected, the partner who has the merchandise could withdraw and keep all the profits; if it’s going to be less, the other one could). Maharam disagreed, because he knew a Gemara which thought a verbal agreement could count as well as a formal act. (Formally, the hana’ah, the pleasure or benefit they receive, from agreeing with each other, solidifies their commitment to the partnership). Rambam must have thought (and Maharik said explicitly) the Gemara referred to extending an existing partnership. Mordechai quoted Maharam as pointing to another passage as proof partners will accept verbal agreement as the formal start of a partnership. Rashba disagreed, since the case in the Gemara was of a group of donkey-drivers agreeing with each other—the joint agreement of a group (and the security which comes from being part of a group) creates more hana’ah, more benefit and more willingness to commit than when there are only two people in the partnership. Chatam Sofer thinks Rambam would have agreed. General practice follows Maharam, but only where the two parties formally agreed to a partnership. Where they spoke in general terms of being partners, without discussing any practicalities, no partnership has been established, and either party can back out even after the profits have already been made (as Rema ruled, Choshen Mishpat 176;3). (Chatam Sofer will come back to the case at hand once he’s established the relevant rules. For now, a partnership established verbally, in only general terms, seems to have little halachic force). Existing or Expected Materials Rambam also thought partnerships could only apply to a davar she-ba le-‘olam, something which already exists (I have wool to sell, for example). He would not think an agreement to share future wages [or tips, for example] would be binding [there may be good reasons for the parties to adhere to the agreement anyway; Rambam thinks only they are not bound by the formal rules of partnerships]. Maharam disagreed again. He thought a verbal agreement would again work—let alone a formal act of acquisition—because the parties implicitly rent themselves to each other, so whatever monies they earn, they have earned for the partnership which owns the rights to their work. Ra’avad agreed. Kessef Mishneh thought Rambam did not accept the idea because the language of their agreement did not mention any hiring out of their persons. Chatam Sofer said Rambam would have rejected the arrangement as ineffective because hiring another person also requires an act of acquisition. Tur said the agreement would work had they already been partners, their now agreeing to share wages would be as if they had hired themselves out to each other. As before, Chatam Sofer thinks Rambam would have agreed because once they are partners, fewer formalities are needed to extend the partnership. [For our case, were we to think they were already partners, because of the wool partnership, the bar to extend the partnership would be lower]. In practice, most authorities disagree with Rambam, and think a verbal agreement would be effective. Certainly, once they began working together as partners, the act gets the partnership off the ground and the standards of extending apply, not of starting. Additional Expectations The discussion so far addressed theoretical halachic standards, which ignores halachah’s acceptance of minhag ha-socherim, what merchants expect or assume. Choshen Mishpat 272 clearly requires Jewish merchants to follow the expected rules of the market regarding collecting money, and Chatam Sofer assumes the same for all market practices. Rambam would agree, especially since markets are collections of many people, and Chatam Sofer has already said he thought Rambam accepted Rashba’s view of the force of a group’s verbal agreement. The workload also matters in partnerships. Chatam Sofer thinks everything said until now addresses cases where both partners are equally involved in the activities of the partnership. Where one person is doing all the work, he needs to be paid a salary, and the profits to divide are what’s left. Tur Choshen Mishpat 176 quotes a responsum of his father’s, Rosh, said as much regarding a partnership to tan hides, where only one partner performed the actual tanning. He needed to be paid for his time before they calculated the profits, Rosh said. Market Assumptions of Chatam Sofer’s Time He’s ready to get back to Nachum and Ya’akov. He says he’s spoken with some businessmen, who all say an agreement to rent a wagon together constitutes an agreement to be full partners all the way to the market. Nachum’s purchase of wool along the way was then clearly part of the partnership; since they were on the way to market anyway, and he had no other business, he also cannot claim any fee for having purchased the wool (it just came his way, with minimal effort, so there’s nothing to pay him). Once they arrive at the market, and even if they’ve hired the wagon for a round trip, the custom sees them as on their own. They sell their wool, divide the profits, and are now back to being individual merchants, says the custom (and Chatam Sofer thinks it’s the most logical as well). The litigants’ claims show they assumed the same rules. Nachum based his demand to be included in the leather partnership on Ya’akov’s offer in Pest; he does not say their having hired a wagon obligated Ya’akov to continue the partnership. Unfortunately for Nachum, he never agreed, verbally or better. The best he can do is pay Ya’akov for his time and effort in the market—since Rosh had said markets were times for each former partner to find their own opportunities—and then split the rest. Next time, they’d be better advised to take care of the formalities before they start on the road to Pest…  21 Av: Shipping Wooden Barrels How do leaders respond to their community’s not meeting the highest standards of observance? There is no one answer, as communities differ, rabbis differ, and the particulars of each type of observance differ. Each example we see, however, helps us build a better picture of the kinds of guidelines such decisors use. This week’s respondent, R. Moshe Khalfon haCohen (1874-1950) was born in and eventually became a rabbinic judge in Djerba, an island off the coast of Tunisia that has had a Jewish community for thousands of years (and, Wikipedia says, still had a thousand Jews as of 2011). On the 21st of Av, 1923, R. Khalfon, in Shu”t Shoel ve-Nishal 1 Yoreh De’ah 75 responded to a question about how to transport wooden barrels of wine. Halachah traditionally worried that a non-Jew with unfettered access to a wooden barrel might pry apart the staves to draw out a cup of wine. Because liquids are all connected, as far as halachah is concerned, that would turn the rest of the barrel into wine touched by a non-Jew. The Gemara’s solution was to wrap such a barrel in a bag, sealed and signed in Hebrew, which a non-Jew could not easily replicate. In the case that came to Rabbi Khalfon, there hadn’t been a bag, just a wooden cover on the barrel, a cloth covering of that cover, with the word “kosher” written on it in Hebrew, and a design of nails (making it hard to replicate, giving more reason to assume that no non-Jew had opened the barrel). On the side of the barrel, there was an opening to draw wine, closed by a wooden peg, which jutted out only slightly. No seal had been placed on that peg, the usual way of preventing worries about the non-Jew removing the peg to take wine. Last, the barrel was down some fifty liters when it arrived at its destination (from brief research, it’s unclear whether barrels have standard sizes, but fifty liters seems a lot for almost any feasible size of a wine barrel). Wood Is Different From Clay R. Khalfon starts by noting that Yoreh De’ah 130 differentiates clay barrels from wooden. With clay, wine can only be removed through the openings, so a double seal suffices to keep a non-Jew wouldn’t bother opening and resealing it. A wooden barrel must be inserted into a bag without seams. That’s not the contemporary practice he knows, however. In his world, Jews regularly ship wooden barrels with only a double seal. He reports that when he was thirteen or fourteen, he asked Mahardach (I am not sure who that is) about this, and the latter pulled out a Shulchan Aruch, read what was written there, and said no more. (The implication is that there was no justification for common practice, that in fact such bags were necessary to cover the barrels, and wine shipped without them was of questionable status). Balancing the Ideal and the Real For his own part, R. Khalfon says, he has tended to refrain from comment, telling only those who ask to send barrels as required by Shulchan Aruch. To defend the others, he saw room to argue that even the Sephardic Jews of Djerba could rely on Rema, who accepted the view that the staves of wooden barrels were, by the sixteenth century let alone the twentieth, too difficult to pry apart to constitute a worry (coopers had become more adept at their craft than in the time of the Gemara). Since the shippers were Moslems, not idolaters, even if they had touched the wine, it created only a drinking prohibition, not a benefit prohibition; that was reason for Sephardim to be allowed to follow the Ashkenazic Rema. In addition, the ship’s captain has the status of a craftsman, who would not risk his professional reputation by tampering with the items in his care, especially if the government polices his trade. For these reasons, R. Khalfon HaChohen leans to thinking there is room to accept this leniency. Sealed or Not? In this case, it wasn’t even clear that the barrel had the proper double seal. Tradition had it that part of double sealing was writing in Hebrew, half on the cover, half on the barrel. That way, if the non-Jew were to open it, he could not reseal it properly, aligning the letters as they should be. In this case, they had instead put a piece of cloth around the top, under which there was another piece of metal. R. Khalfon nonetheless thinks that, too, qualifies as the necessary double seal. One more issue was that the spigot—really, the hole in the barrel that had a peg stopping it up—wasn’t sealed. Here, too, the fact that Moslems are not idolaters means R. Khalfon could be lenient. His leniency was that one seal would be good enough; in this case, it was that the peg was well fastened to the hole, making it difficult to remove. He supports that claim from Yoreh De’ah 118;18, which says that anything prohibited rabbinically left with a non-Jew needs only one seal. In 130;2, Shulchan Aruch adds that if the person leaving the item designated a place for it (such as its’ place in the hold of the ship), that also needs only one seal. Since the crucial issue is how likely it is that the non-Jew would sneak some wine, if the peg is so firmly entrenched that it would take significant effort to remove, and the barrel is assigned a place (so that even moving it already has some danger of discovery), we can assume the non-Jew didn’t do either, not move it and certainly not take wine. Helping him reach this conclusion, as well, is the fact that the peg is almost flush with the wood. Tsemach Tsedek had said that the spigot being more difficult to access than normal was reason to dispense with the need for an extra seal. That was true of this peg, which was close enough to the barrel that it could not be removed quickly and surreptitiously. In such cases, especially since the non-Jew would see the writing on the top of the barrel (and know that we’re watching these barrels for signs of tampering), we’re allowed to rule leniently. Unintentional Touching R. Khalfon then notes opinions that a non-idolatrous non-Jew’s unintentional or unwitting touch doesn’t produce any prohibition on the wine. Since the primary problem is the intentional touch of an idolater, and that would prohibit any benefit from the wine, each diminution of that circumstance lessens the prohibition. The unwitting touch of an idolater or the intentional touch of a non-idolater creates a prohibition to drink but not of benefit, and, in our case, if a non-Jew pulled out the peg or opened a slot between the staves, his touching the rest of the wine would be unintentional. Rambam rules this way, and R. Khalfon thinks Yoreh Dea’ah 124;7’s citing only that view indicates Shulchan Aruch’s acceptance. Finally, the missing wine proves nothing. The barrel might have gotten a hole in it, or the seal at the top might not have been as tight as was thought. R. Khalfon does know of a more stringent ruling in Shu”t Yachin u-Boaz, but asserts the right, in a debate among decisors, to follow the lenient view, especially since (he assumes) Yachin uBoaz dealt with idolatrous non-Jews, and because wooden barrels have improved, reducing the worry about staves being pried open. Sum total, a practice that seemed a flagrant violation of a simple paragraph in Shulchan Aruch has more room for leniency than we had realized. Because barrels have changed, shipping is a profession that cares about its reputation for not tampering, and Moslems aren’t idolaters.  22 Av: R. Moshe Feinstein on Issues of Vestot In many areas of life, I have become suspicious of deliberate choice. I see, in myself and others, overconfidence that leads us astray all too often. One of the major appeals of choosing responsa by date, to me, is that it takes some of the choice out of my hands; inserting some randomness makes it more that these are responsa that came my way than that I went to find. With all that, I still do choose, based on length, favorite respondents, topics of my interest, ideas I feel I can present well and briefly. Responsa that are too long can’t fit here (unless I cut too ruthlessly even for myself to feel comfortable). And I usually avoid very technical responsa, because I don’t trust myself to convey them well enough to be a credit to their authors. To not let that warp the selection process too much, I occasionally stretch and take on that which I might ordinarily have left. In this case, Iggerot Moshe Yoreh Deah 2;74, R. Moshe Feinstein took on a very practical issue, but a somewhat delicate and technical one. Let’s see if we can make it worth our while. A Very Brief Introduction to Vestot It is, I hope, well known that married Jewish couples who follow the Torah’s commandments refrain from intimate contact after the woman menstruates until she goes to mikveh. What might be less known is that halachah also required the couple to anticipate when that was likely to happen, to avoid the possibility that they might have relations when they should not. Some women’s cycles are regular enough that they have a good idea of when they need to separate physically. That’s called a veset, an expected time of menstruation, and such a couple would refrain from marital relations that day or night. (If she doesn’t menstruate then, for some reason, they can resume their relationship until she does, and then there are all sorts of rules as to how she decides whether that was a blip, a loss of veset, or the first step in a change of veset). For a woman who doesn’t have a veset, the practice became that the couple would treat day thirty as if it were. Since we know she has to see sometime, thirty days was chosen as an average time, a way for them to show they, too, were mindful of these halachic concerns. The Question to R. Feinstein What would happen, R. Moshe Feinstein was asked on 22 Av, 5722 (1962), with a woman who never had that short a gap between menstruations? That is, three consecutive experiences supported her expectation that her next menstruation would occur no fewer than thirty-one days after the last one. She had no better veset than that, but it seemed odd to spend day thirty apart if there was no halachic reason to expect she might menstruate that day. There is a somewhat parallel case in Yoreh Deah 186;3, that a woman who never menstruates within fourteen days of the last one can have halachic confidence that she will not become a niddah in those days (which allows certain leniencies for the couple). The questioner had heard R. Feinstein applied that to this case as well, and wanted clarification. It’s Not a New Question R. Feinstein points out that later authorities debated this very issue. R. Elchanan Ashkenazi, the 18th century author of Sidrei Taharah (and rabbi of Danzig), held much as R. Feinstein, that the fourteen-day case in Shulchan Aruch sets up a general rule that we accept a negative veset, a certainty she won’t become a niddah in a certain time frame, even if we have no identifiable regularity as to when she will. Chavat Da’at, written two generations later by R. Ya’akov Lorberbaum (also known for his Netivot HaMishpat on Choshen Mishpat), held that such a couple did have to abstain on the thirtieth day—the idea that they have to worry about an onah beinonit, a median or average regularity, was so clear to him that he also refused to accept Shulchan Aruch’s fourteen-day ruling. For him, there was no such thing as a veset to not menstruate. His main support was a comment of Rashba’s, that veset created a presumption about one particular time, with no ramifications about what her body would do at other times. What a Veset Does R. Feinstein is puzzled by that, since he knows of well-accepted halachot that support the idea of a negative veset. For example, in a couple where the wife has no veset, the husband is supposed to check before initiating marital relations (halachah worried she would be too embarrassed, shy, or some other emotion to rebuff him with the bad news). The husband of a woman with a veset had no such need, proof that a veset gave confidence she would not menstruate at other than her established regular time. Rambam and Rosh required that such women physically check themselves before every time the couple has relations. Many authorities disagreed, since she has a chezkat taharah, a current status of being tehorah, of being allowed to have relations with her husband. Shach ruled that way, making R. Feinstein wonder how Chavat Da’at could hold the opposite, that a veset does not let her assume she is tehorah until that time came around. [On this last, it seems to me Chavat Da’at might have held that chezkat taharah is independent of the function of a veset, as R. Feinstein has just noted many authorities held.] How Certain a Veset To explain the Chavat Da’at-- because even if he’s going to disagree, R. Feinstein respects him enough to know he must have had a reasonable perspective—R. Feinstein suggests that he held that only an established veset was strong enough to mean she didn’t have to worry beforehand. Without an exact prediction of when it would come, however, it could not be seen as precluding other timings (even as he would agree, R. Feinstein is saying, that it could be considered a veset in terms of expecting it at the less exact time that it predicted). In clarifying that further, R. Feinstein reminds us that we’re trying to decide how confident we are about our predictions of the future based on past results. This comes up with many chazakot, halachically valid presumptions, and is in that sense about more than just this one issue. Here, he’s understanding Chavat Da’at to have been saying that a veset establishes a very strong chazakah that this woman’s cycle is governed by time (other women had cycles that depended on other factors, as far as halachah was concerned). This presumption is so strong, in fact, that we can rely on it at a Torah level, to allow the couple to ignore the issue until it forced itself on their attention. A less well-defined veset (such as the type we’re discussing, that she doesn’t see before a certain amount of time) would be also less certain, for Chavat Da’at, and therefore might be relevant in limited circumstances, and only once it was in play (when the time had arrived). A Broken Chazakah Chavat Da’at sought to prove his view with the fact (also noted by Rashba) that should a woman become a niddah unexpectedly, she would have to assume that this had happened as much as twenty-four hours ago (for deciding which items she had rendered tamei, ritually impure). If the chazakah established that she did not have to worry, then it should last right up until the moment we know it was no longer in effect. That’s how we act with other halachic presumptions. R. Feinstein responds that here, the issue is that women sometimes change vestot, their bodies migrate to other rhythms and regularities. When a woman menstruates unexpectedly, then, it can be an exceptional event or the first instance of a new version of herself. The uncertainty led Chazal to treat this chazakah as less ironclad than most, but only once we had reason to think the situation had changed. There is more in the responsum, but too much to take on here and now. As much as it as we’ve done has shown us, first, some sense of halachah’s attempt to understand the ways in which women’s bodies express their regularity (the discussions of veset are open to a plethora of ways in which a woman might evince a regularity to her cycles), the nature of chazakah, of where and what we are allowed to assume about the world, and, most importantly for a man and wife, when they can take her regularity as carving out a time in which they need not worry that she might become a niddah and interrupt what we hope is their happy, healthy, and satisfying relationship. 23 Av: Chatam Sofer on Grafting That Isn’t Kilayim [Click here for the audio version]. Shu”t Chatam Sofer 2; Yoreh De’ah 287, dated 23 Menachem Av 5575 (1815), shows practical farming questions arose in halachah even before Jews returned to Israel and took up agriculture. The questioner noticed people in his area had a technique for planting ahal or shoshanim (ahal is either aloe or agarwood; shoshanah often refers to roses, although I think contemporary scholars think the Biblical word meant lilies) which seems to pose problems. The farmer would slice an opening in an existing branch of ahal or shoshanah and insert wheat, which helped the plant take root in the ground. On its face, the practice seems an act of kilayim, planting two different species together, which the Torah prohibits. Yoreh De’ah 295;3 tells us kilayim is a problem regardless of whether the graft affect the produce, and includes vegetables grafted with tree branches in the prohibition. In the next paragraph, Shulchan Aruch said harkavah of kilayim, prohibited grafting, can happen below ground. Put that all together, the aloe/agarwood/rosebush planting looks to be a problem. No Rush to Prohibitions Chatam Sofer instinctively agreed, which was why he had stopped a member of his household from doing exactly that in their garden about two weeks earlier. On the other hand, he was not sure enough of the prohibition to assert it for others. Shabbat 145b reads Mishlei 7;4 (emor la-chochmah achoti at, say to wisdom, ‘you are my sister’) to tell us to only establish some hitherto unrecognized prohibition if it is as clear to us as the prohibition against siblings engaging in marital relations. Chatam Sofer is not sure enough in our case, because he thinks grafting might only be a problem when both species at some point grow above the ground. In our case, the wheat never grows, it serves only as a rooting agent. Kiddushin 38a gives him reason to think he has made a valid distinction. Vayikra 19;19 speaks of both animal kilayim—Jews may not not breed different species together—to field kilayim, which prohibits planting fields with different species. The Gemara says the juxtaposition was to stop us from thinking of field kilayim as a land-based obligation; like animal kilayim, it is a chovat ha-guf, a personal obligation, so a Jew may not plant kilayim anywhere in the world. Chatam Sofer believes the Gemara’s inference teaches us the need for the visibility of both plant species. When animals are bred together, both species are visible, so Kiddushin’s insight should mean we require that of the plants as well. How Far We Take a Chiddush To me, his readiness to extend a Talmudic idea in ways the Gemara itself did not was already surprising, but he uses his insight to question a comment of Tosafot Yom Tov’s to mKilayim 1;7. In the Mishnah, R. Yehudah allows grafting trees with vegetables. Tosafot Yom Tov attributed the permissibility to the sterility of such mixtures, their not producing any new kind of fruit. Chatam Sofer cannot accept Tosafot Yom Tov’s reasoning, since R. Yehudah himself prohibits mating other breeds with mules, despite their sterility (to prove mules cannot bear offspring, he cites Megillah 13b, a reminder that some great Torah scholars built their knowledge of the natural world from the Gemara as well). Once the lack of offspring did not matter for animal kilayim, it must also not matter regarding plant grafting, because the verse links them, as Kiddushin 38a said. [Again, pay attention to what he’s just done—the Gemara linked two ideas in one context, Chatam Sofer assumed it applied to another context, and was so sure he was right, he thought his reading made Tosafot Yom Tov’s idea obviously incorrect in yet a third context.] He will return to the question of produce in a second, but he first closes this discussion by repeating he was insufficiently certain to say this action was clearly a violation of the Torah. Smell as a Form of Produce The questioner also wondered about mixing aromatic trees or plants. Rema to Yoreh De’ah 295;6 allowed grafting ilanei serek, trees without fruit. The usual explanation saw all such trees as one species for kilayim purposes, but perhaps aromatic trees or plants have a discernible enough effect on the world to count as separate species and present kilayim concerns. Chatam Sofer thought the explanation denied halachah noticed differences among non-fruit-bearing trees, which he proves is untrue. First, the Torah did not limit kilayim to fruit trees, as it did for ‘orlah, the requirement to refrain from using the first three years of a tree’s fruit, or bal tashchit, the prohibition against wasting food. So when the Torah speaks generally of trees regarding kilayim, we should assume it means all trees. Nor is the Gemara unwilling to discriminate among non-fruit-bearing trees. Rosh Hashanah 23a speaks of ten types of arazim, cedar, and Ta’anit 25b recognizes some of those do not produce fruit, and some of the types which do not produce fruit do not regenerate when pruned. So clearly, the Gemara saw differences. He suggests instead we treat all such trees as one type because of how the Torah referred to their creation. When Hashem calls for the earth to bring forth fruit trees, the verse speaks of ‘etz ‘oseh peri le-mineihu, a tree which makes fruit in its types. Since the issue of types or species only arose in the context of fruit, non-fruit trees seem not to have types that matter for halachic purposes [which I would think was likely what the people who first advanced the idea meant]. Leniencies in Theory and in Practice The verse in Bereshit did not speak of aromatic trees as having different minim, types, so they should count as one species for halachic purposes. Chatam Sofer recognizes he’s relying on a particular manuscript version of Yerushalmi, which is why he discourages relying on this idea. Mishlei 22;5 warns one who guards his soul to distance himself from dubitable acts; in our case, since another version of the Yerushalmi would not yield the same insight, he thinks it’s too shaky to use as our support for mixing the trees. Ramban’s reading of the verses in Bereshit also denies his suggestion. Ramban said every kind of grass has a mazal, a corresponding force/power in Heaven that oversees its growth. Grafting two types of such grasses then mixes Heavenly forces in ways the Torah did not want. Of course, Ramban also thought types of non-fruit trees each have their own mazal and yet we are clearly allowed to graft those together. Chatam Sofer glosses over the problem with the common phrase, ein lanu eisesk ba-nistarot, that we do not involve ourselves in hidden matters. He’s uncomfortable, in other words, mixing that which we have not done in the past, has a sense this prohibition should apply more broadly than technical halachah seems to, but is not willing to impose that intuition without better proof. He won’t say not to, but he won’t do it, nor allow members of his household to do it. 24 Av: Chatam Sofer on the Definition of Medical Need to Violate the Torah Shu”t Chatam Sofer 4; Even HaEzer 2;82, dated 24 Av 5594 (1834), touches on two themes close to my heart, how to deal with people trying to avoid keeping halachah, and the extent to which we trust/rely on medical insight. Doctors Defining Danger The woman in question was beset by a legitimate problem. Her husband had passed away without children, and the only brother who could perform chalitzah was six years old. Chatam Sofer had previously written the rabbi asking the question to rule out any possibility of her being permitted to marry someone else before the boy reaches the age of Bar Mitzvah, when he will be legally able to do chalitzah. She had found doctors to certify she would become dangerously ill unless she remarried sooner. (The responsum implies she consulted the doctors looking for a way around the original ruling, without telling us why she found waiting for the seven years to be intolerable. I will refrain fro speculating in writing.) The rabbi writing Chatam Sofer wondered whether he could rely on the doctors, and phrased the question in a way which makes it very contemporary: When we have a healthy person, in whom we can detect no illness, can we permit what is ordinarily prohibited because of a danger the doctors tell us is out there? [In our times, preventive medicine presents many such questions; as we read Chatam Sofer’s answer, we have to gauge how much the advances in medical technology change our view of the issue.] Established Danger of Unknown Extent Were she to have symptoms, Chatam Sofer would trust the doctors to define her situation as safek pikuach nefesh, possible threat to life, which means we can violate Shabbat, Yom Kippur, and almost all of the Torah’s prohibitions to care for her in the ways the doctors prescribe. He is not sure the doctors’ determination would give her the halachic status of someone who is definitely in mortal danger but that doesn’t matter, since the possibility of such danger is enough to push aside almost all of the Torah’s prohibitions. We might think the “almost” creates a problem here, since the three categories of sin, murder, worship of powers other than Hashem, and illicit sexual or marital relations, are immune to the life-saving exception. Were the prohibition for a woman waiting for chalitzah to marry any other man to count as an ‘arayot, medical danger would still not allow her to marry. Chatam Sofer thinks it’s not. The requirement to let oneself be killed rather than transgress an ‘arayot sin, a sin of illicit sexuality or marriage, does include plain prohibitions. A couple whom the Torah banned from relations with the threat of karet or death would also not be allowed to interact sexually at a level covered “only” by a plain prohibition; they could not, for Chatam Sofer’s example, hug and kiss each other to avoid death, despite those specific acts not rising to the level of death or karet. A Widow’s Prohibition This woman does not fall under the category of yehareg ve-al ya’avor, the requirement to refuse to transgress under pain of death, because the whole sin she would commit is established by an ordinary prohibition. For her to marry another man without chalitzah violates Devarim 25;5’s command, lo tihyeh eshet ha-met hachutzah le-ish zar, the wife of the deceased may not marry out, to a foreign man. Chatam Sofer acknowledges reasons to view her situation as more stringent than other “plain” prohibitions. First, halachah has left aa an open question whether her marriage to anyone else would take effect [Even HaEzer 159;1 requires her to divorce the man mi-safek, in case the kiddushin works], a characteristic of ‘arayot and not the lesser marital or sexual prohibitions. Once we are not sure the kiddushin takes effect, any time the two live together as husband and wife might be be’ilot zenut, promiscuous relations, the cumulative effect of which supports the possibility danger to her life would also not allow her to marry this way. Chazal also referred to her as an eshet ish, a married woman [I think he means Yevamot 95b, where Rav and Shemuel debate the point], which edges her closer to the kinds of ‘arayot where life-threatening danger does not help. Nonetheless—and I am skipping other examples he gives to show the greater seriousness of her situation—she is not one of the ‘arayot, and the need to save her life should permit her to marry someone else. What You See Is What You Get Chatam Sofer has a few lines of reasoning for why this will not be true here, but we will focus only on the one the rabbi had raised, her lack of current symptoms. Doctors properly diagnose people who appear well and healthy based on their report of certain pains, he says, but does not think those diagnoses establish the kind of danger to life which allows us to violate any parts of the Torah, let alone Biblical prohibitions. Chatam Sofer uses the phrase “’al pi chalomotav, based on his dreams,” which I think is an important factor here: he does not respect doctors’ diagnoses enough to see them as establishing fact. Today, advances in medicine mean we correctly respect doctors’ diagnoses more, and yet I also think there is value in remembering Chatam Sofer’s point. Doctors still today sometimes assert what they do not know (especially in the absence of current symptoms), and in such cases, it is not clear halachah allows us to accept their prescriptions as the basis for pushing aside Torah law. Magen Avraham 617 noted a specific exception made to allow pregnant women to eat on Yom Kippur based on the woman’s own report of a need. For ordinary people, we would not to see some external sign of distress (nishtanu panav, his face changed) before we would allow him/her to eat (pregnancy is the symptom which lets us trust her; regular people have no symptoms, without which we do not assume danger). Chatam Sofer thinks Avot 5;5 gives another example. In its list of ten regularly occurring miracles in the Beit HaMikdash, the Mishnah includes the absence of miscarriages caused by the smell of the sacrifices. Tosafot Yom Tov quoted Rashi, who said the smell might stimulate a life-threatening hunger for the meat, requiring a miracle for her to survive. Why wouldn’t the people there give her some of the meat, asks Chatam Sofer, since saving lives allows for all sorts of violations, and a Mishnah in Yoma explicitly allows feeding a pregnant woman on Yom Kippur where she develops a similar hunger? He quotes the answer of a rabbi I do not recognize, who suggested we only violate the Torah for a woman whose pregnancy is already showing. A woman who says she’s pregnant [in their times, today we can validate pregnancies much earlier], says she already has the pain and cravings of pregnancy, would not have enough evidence for the surrounding authorities to violate the Torah to help her. For such women, the miracle reported in Avot happened. (This rabbi added a textual inference: the Mishnah says no woman miscarried, rather than no ‘ubarah, no pregnant woman. As far as the people around her could tell, she was an ordinary woman, who might, however, have miscarried had the miracle not occurred). Self-Diagnosis Only with Symptoms Chatam Sofer likes the answer very much (he says divrei pi chacham chen, the words of a wise man find favor, a phrase from Kohelet 10;12 often used to express approval and admiration of another scholar’s ideas). He adds, as a side point, that in the Yom Kippur case, the Jew should be allowed to believe him/herself (others cannot feed him/her based solely on his/her claim to be dangerously hungry, but s/he could). The idea does not help the woman in our case, since her marriage is a matter of public record; to let it go forward would be as if we did it ourselves. We do trust a woman’s self-diagnosis in another prominent case, a woman who seems to become a niddah during any act of intercourse or who bleeds so frequently she can never become permissible to her husband (in extreme versions, such women may have to divorce, since there’s no permissible way for them to live together). Were such a woman to tell us she has a wound in that area, which becomes irritated and bleeds during intercourse, we believe her. Not a problem, she’s symptomatic, says Chatam Sofer. Such women have already deviated from the typical enough for us to see them as showing signs of illness, opening the door to believing her regarding the source of the bleeding. There are obvious limits; Tosafot and most authorities think such women must observe the separation of niddah at their usual time (they cannot use the wound to exempt themselves from any need to separate from their husbands when they would ordinarily have become a niddah). Rashba makes Chatam Sofer’s point almost explicitly: only a woman with unusual bleeding can tell us she has a wound. A woman who bleeds in the range of ordinary, which we would see as typical menstruation, would not be believed to claim she has a wound there and should not be considered a niddah. The Woman Cannot Get Married We would not feed a person on Yom Kippur based solely on his/her claim to be ill, and people treat Yom Kippur more seriously than the ordinary prohibition of a widow remarrying without chalitzah. In the latter case, Chazal specifically refused to believe a widow who claims her sole brother in law passed away, because she might lie. Further, the temptation to find a way to satisfy herself sexually is greater than the challenge of foregoing food for one day or acting in the ways prohibited on Shabbat. Adding to our reasons not to believe her unless we see symptoms, we cannot be sure which time she would live with any new husband would cure her. Were we to allow her to remarry, it would only be to save her life; once her life’s saved, they can no longer live together. Even if she has continuing need for a marital relationship, if living together once a month were enough, any other times they consummated their relationship would violate the Torah as well. Finally, Chatam Sofer makes a point so daring he then backtracks from it repeatedly, to make clear he was making a theoretical rather than practical point. Suppose we determined she was in mortal danger if she did not have sexual relations with a man, even with some regularity. In such situations, halachah requires finding the least severe method of solving the problem, and for a widow (and women in general, for reasons there’s no reason to elaborate here, since Chatam Sofer takes pains to remind us he was making a theoretical rather than practical point), having sex with a non-Jew is less serious than marrying a man without chalitzah. Obviously, we would not act this way in practice nor recommend it to her—and a famous Gemara in Sanhedrin shows Chazal to have been willing to allow individuals to die rather than breach ordinary community standards of sexuality, without the presence of technical ‘arayot problems. There is therefore no room to allow this woman to marry, and Chatam Sofer encourages his correspondent to stand firm, and to hope and expect Kohelet 8;5—shomer mitzvah lo yeda davar ra, one who observes commandments will not have evil befall him/her—will be true of him as well.  25 Av: R. Moshe Feinstein on Assessing a Community to Build a Mikveh Members of communities have a range of financial means, are able to contribute to communal needs to differing extents. Much of Shu”t Iggerot Moshe Choshen Mishpat 1;41, dated 25 Menachem Av 5721 (1961) deals with one strategy Jewish tradition offered, chatzi le-fi mamon ve-chatzi le-fi nefashot, literally “half according to money, half according to souls,” meaning half the cost was raised by assessing communal members according to their wealth, the other half from a fee which was the same for each member of the community. I personally think this is an excellent system, and it was certainly part of what attracted me to this responsum. I will editorialize only in square brackets as we read R. Feinstein’s discussion, I just wanted readers to know my choice was not completely random, it touched on themes I value. The community in question was building a mikveh, and R. Feinstein recommended they follow this traditional model. To explain it, he gives them (and us) a full background. Needs and Embellishments Orach Chayyim 53;23 rules the costs of hiring a communal chazzan should come from kuppat ha-kahal, the communal coffers. While the chazzan will help the poor fulfill their prayer obligations as much as the rich, they do not have the means to pay. It’s unclear how the kuppat ha-kahal was funded (if everyone paid into it equally, it’s no help to the poor to take the chazzan’s salary from there; R. Feinstein will come back to Shulchan Aruch’s meaning later), but Rema offers a different model, chatzi le-fi mamon ve-chatzi le-fi nefashot. Taz 53;14 explains the strategy as a compromise—the poor need a chazzan, but the rich want a better one, with a nicer voice. The poor’s payment covers a basic chazzan, with the added value for a better one coming according to everyone’s wealth [there is a deep insight here into how Jewish communities decide standards of living in many areas, including education. The rich live a certain way and want that reflected in their Jewish communal lives; the poor can be expected to pay for their basic needs, but should not be implicated by the luxuries of the rich]. The model works for all mitzvot, says R. Feinstein, since they all have a basic level and a noi, a beautified extent. Time vs. Money A few chapters later, Magen Avraham offered an additional [also, to my mind, insightful] reason. Orach Chayyim 55;21 discusses a community with eleven Jews, two of whom wish to leave for Rosh Hashanah and Yom Kippur. Since that’s the one time of the year members of the community can force each other to pay to fill out a minyan (were there fewer than ten Jews living in that place), these two Jews who want to leave need to hire someone to replace them. Shulchan Aruch itself here says the payment should follow our half and half model, half the cost split equally between them, the other half paid proportionately to their wealth. Magen Avraham, paragraph 16, referenced the explanation of Hagahot Maimoniyyot. Poor people are readier to travel than to pay money. Were their town to fail to secure a minyan, they would go somewhere else; their attachment to their homes is less (since they have fewer possessions there), and cost is a much bigger factor than the time and effort in moving temporarily. For the rich, the opposite is true, which is why they need to pay more to guarantee their minyan (and why a rich person who is leaving needs to take care of the people he’s leaving behind in the manner he himself would want to be cared for were he staying). The tradeoff applies broadly, says R. Feinstein, the wealthy prepared to pay rather than be inconvenienced, and the poor more accustomed to the inconvenience. [This comes up in many areas, such as transportation—people with the means will pay more to save time or effort on their commute. For those who don’t have the money, the extra time and effort is all they have). Variations of Place and Custom All this is a matter of custom, R. Feinstein stresses, and was seen as a reasonable way to balance the competing needs and abilities of members of a community. In Orach Chayyim 53;27, Magen Avraham quotes Levush’s reminder that wherever there was no specific custom, the pay for a chazzan should be taken le-fi mamon, proportionately to wealth. Machatzit Ha-Shekel, a commentary on Magen Avraham, said Rema accepted the view of Levush, since in Choshen Mishpat 163;3 (a paragraph which prescribes financing strategies for many communal needs) Rema said to raise the salary of a chazzan le-fi mamon alone (which seems to contradict what he wrote in Orach Chayyim). Machatzit Ha-Shekel suggested the Choshen Mishpat ruling reflected places which had no specific custom, while in Orach Chayyim Rema wrote assuming this was the common custom of communities he knew. [I only just noticed the contrast between our contemporary assumptions and those of these authorities—in the absence of a custom obligating them some base-level amount, we would think all of the costs should be paid for proportionately to wealth]. Proportional Collection Is the Starting Point Peri Megadim, however, limited the idea to the salary of a chazzan, which is less pressing a need than other communal ones, and where the issue of beauty of voice (which leads to the extra cost, but is clearly a luxury) is intrinsic to the payment. R. Feinstein thinks Shulchan Aruch’s rulings support Peri Megadim’s claim, since he said the chazzan’s salary should come from the communal coffers (Mishnah Berurah points out this fund was raised according to everyone’s wealth; Peri Megadim himself seems to R. Feinstein to believe Shulchan Aruch meant to conduct a separate collection, since the communal fund a) came from many sources, some of which would be shared equally by all communal members, and b) might be held equally by all once it was collected, regardless of the differing proportions of contributions), whereas when two people need to hire a replacement to fill out the minyan, Mishnah Berurah understood him to agree they should do it half by wealth, half by an equal payment. Gr”a seems to R. Feinstein to have thought Shulchan Aruch changed his mind about taking the chazzan’s salary from the communal coffers, had come around to agree all such needs should be split between equal contributions and proportional ones. Rema and Magen Avraham’s citation of Levush, however, seem to see proportional contributions as the baseline assumption, with the component of an equal assessment from all members of the community a matter of custom. [For Rema and Levush, in other words, membership in shuls would be on a sliding scale, always. Even if there were a membership fee for all members, it should cover only half the shul’s costs, the other half to be raised from each according to their abilities]. Building a Shul I am skipping a discussion of Peri Megadim’s view of how two people divide the payment to make up a minyan, because it rarely comes up today and adds little relevant to our broader question. R. Feinstein then turns to Rema’s view in the paragraph in Choshen Mishpat regarding paying to build a shul; there, too, Rema thought the assessment’s should be a function of means, despite the poor needing a shul as much as the rich (for the chazzan, we were able to say there was an element of luxury which the poor did not need to finance; they could go elsewhere, for example. When Rema rules similarly about the building of a shul, he seems to be allowing the poor somewhat of a free ride on a need of theirs). R. Feinstein therefore offers a different distinction than need. He says a chazzan is a communal obligation rather than a personal one. Obviously, every Jew would avail himself of the chazzan (to participate in communal services), but the obligation is fundamentally communal, not personal to any individual. So, too, any community must build a shul, even if they already have a home in which they can pray as a minyan [R. Feinstein does not discuss here how that idea affects house minyanim]. There, too, the need is communal, with no specific obligation resting on any individual. In all such situations, says R. Feinstein, the community raises funds proportionately to the wealth of its members, unless there’s a custom to include an element of equal assessment. Building a shul, he suggests, happens rarely enough to perhaps mean there is no custom of flat fees, which is why Rema did not mention it. A Mikveh Is Personal As Well As Communal His reasoning lets us see why mikveh financing would automatically include a flat fee element. While any community needs to have and build a mikveh, each of the married couples in the community [and, today’s concerns aside, communities traditionally consisted of married couples and their children] will need this mikveh as well. The community which had written to him had assumed they should collect the money purely based on ability to give, and R. Feinstein is correcting them. The situation was complicated by a communal agreement to raise the funds a certain way, but R. Feinstein thinks that might constitute an agreement made in error, since people might not have known their halachic rights [to me, this is a question that rises more often than we realize, where people mistakenly think they are obligated to act in a certain way; commitments made in such conditions are not necessarily binding]. The wealthy, who thought they had to fund it to a much greater extent than R. Feinstein thinks, only did so because they thought they had to. Keeping People Out for Lack of Payment On the other hand, some wealthy people were not paying what they should, and the community wanted to exclude them until they paid their share. R. Feinstein thinks they may not do so, since there are no owners to a mikveh (a claim he takes for granted, but seems questionable—doesn’t the community as a whole own it, which would allow the community’s representatives to decide to keep certain people out?). Besides, he thinks it’s wrong to do it as well. Since the city in question has another (less convenient, perhaps less beautiful) mikveh, R. Feinstein thinks they can refuse to let the people use this mikveh until they pay. Even so, he discourages it, for fear the people in question will not in fact go to the other mikveh (it’s often hard to gauge people’s commitment to observance, what kinds of inconvenience will serve as an excuse to stop observing these rules). They have to find other ways of extracting the monies these people should pay. They can call them to beit din, embarrass them publicly, and use other means of communal pressure. For similar reasons, he adds, they should not try to charge more from the wives of men who had not paid their assessed amount, for fear these women would decide it wasn’t worth it, and the community would again have been part of discouraging mikveh observance. The Qualifications of a Mikveh Lady The last bit of the responsum turns to the woman who will supervise the mikveh. She needs to know the standards to follow in terms of proper bathing in advance of immersion, what constitutes a barrier between a woman’s body and the water, and to verify the woman’s whole body and hair entered the water. All of her functions need to be fulfilled pleasantly, he adds, in a way which fosters women’s continued observance, makes the experience enjoyable or meaningful, so the women will come back month after month. The mikveh lady should be observant herself, trustworthy and one who fears Heaven. They seem to have asked whether the mikveh lady could be someone who does not cover her hair. R. Feinstein clearly thinks this is a less good option. However, as long as she is known to be exacting about the laws of niddah and mikveh, he does not think the community is required to see her lacks in one area of halachah as revelatory about her care about others. In addition, since so many women in those times did not cover their hair, this woman may count as a shogeget, an unwitting violator of halachah. Then, his final point, the community cannot have a plaque or card with the berachah to recite before immersion in the immersion room, since women enter the room unclothed, and it is prohibited to stand unclothed before Hashem. From financing to supervision to conduct, some issues of mikveh laid out by R. Moshe Feinstein on 25 Menachem Av.  26 Av: R. Moshe Feinstein on Some Limits on Saving Lives It’s common to say that saving lives pushes aside all of halachah, that we can do whatever it takes to save a life. That’s obviously exaggerated, because we all know situations where a Jew is required to let him/herself be killed rather than violate the Torah (such as if someone threatens to kill the Jew unless s/he commits murder). One of those situations—a man being coerced into improper sexual intercourse—taught R. Moshe Feinstein a more far-reaching exception to the permissibility of saving lives by violating the Torah. As we’ll see, R. Feinstein thought that we’re allowed to be coerced by circumstance into violating the Torah, but we’re never allowed to want to violate the Torah, and that might mean that we cannot save certain lives. What Counts as Mentally Ill The responsum is in Iggerot Moshe, Yoreh De’ah 2;59, dated 26 Menachem Av 5725 (1965), and dealt with a seemingly unrelated topic, institutionalizing someone with mental problems. Sotah 3a quotes Resh Lakish as saying that people do not sin unless a ruach shetut, an insane spirit, enters them. The rabbi from Toronto who asked R. Feinstein about this, R. Yaakov Immanuel Schochet, had apparently suggested that perhaps that means we can treat such a person as a shoteh, not halachically competent enough to be held liable for his or her actions. R. Feinstein rejects that, since it would mean courts would never punish crimes. [I know people today who will dismiss all evil behavior as necessarily a function of mental illness; that cannot be halachically valid, R. Feinstein is saying, because then the Torah would never punish people, since they weren’t competent when they sinned]. As long as the sinner/criminal understands what s/he’s doing and that it’s wrong, s/he is sane enough to be culpable for his/her misdeeds. The situation at hand was a boy who needed to be institutionalized in a facility where there was no kosher food, and which did not allow outside food. Had we been able to take mental illness as a sign of being a shoteh, not halachically competent, we wouldn’t have to worry about it. Since R. Feinstein rejects that, he thinks that any Jew who fosters this boy going to this facility violates the prohibition of lifnei iver, of causing a fellow Jew to sin. When Saving Lives Is Not Enough What if the doctors say there’s a real danger the boy will kill himself unless treated? Or will violate the law and resist arrest to the point that the police will kill him? Or will become so mentally ill that he in fact will no longer be halachically competent? In cases of physical illness, this danger of death would allow eating non-kosher, so mental illness should presumably be the same.  What’s different, in R. Feinstein’s view, is that we cannot trust this patient to limit his violations of the Torah to that which is necessary. Since this boy/man already doesn’t keep the Torah, we have to assume that he will also eat nonkosher food just because it looks and tastes good. There’s no excuse for that eating, so lifnei iver applies. This is a far-reaching claim, that we are not allowed to save lives (ours or others) if we know that while doing so we (or those others) will choose to violate the Torah in ways unrelated to and unnecessary for saving those lives. The Desire for Sin That’s because we’re not allowed to want to sin, even if that costs lives. He derives this from a comment of Kessef Mishneh, Laws of Sanhedrin 20;3, on a puzzling ruling of Rambam’s. Rambam says that a court would put to death a man who yielded to threats of death and committed a prohibited sexual act. That’s in contrast to idolatry or murder, where the person is also not allowed to yield to coercion, but the courts do not punish such coerced acts. Why is intercourse different? Kessef Mishneh’s answer is based on a Talmudic principle that ein kishui ela le-da’at, that a man’s sexual arousal always involves some component of mental consent (if a certain sexual act is truly and completely distasteful to a man, he will not become aroused; this, too, is an idea with many ramifications, but would take us outside the scope of this responsum). True, there is the threat of death, but he still cannot claim to be fully coerced. R. Feinstein points out that at first blush, this doesn’t answer the problem, since he was coerced into being aroused. The point he derives is that only prohibited actions are permitted because of coercion, the interest in those actions (whatever they may be) is not. Taking Pleasure or Actively Desiring If the action is coerced and one enjoyes it once one is doing it—I didn’t want to eat bacon at all, but the doctors said I had to and then it tasted good—that’s not a problem. Pesachim 25b does record a dispute in which Rava’s opinion seems to be that intending to take pleasure from something prohibited is not allowed, but that’s only where the underlying behavior has not been allowed for some other reason. In the case of saving lives, once the underlying action is allowed, pleasure is not a problem. That’s different for intercourse, R. Feinstein read Kessef Mishneh as arguing, because the act isn’t permitted, and the man doesn’t take the pleasure once he’s involved in the act, his arousal shows an interest in the act beforehand. (I stress again, if the man really and fully found this act completely distasteful, the Gemara’s view is that he would not become aroused). Even when it’s coerced, then, it’s seen as a willful act. Bringing It Back to the Mental Patient It’s that element that creates the problem for the patient who will eat nonkosher food even when unnecessary. That shows that he wants to sin, which is never allowed. Once it’s not allowed for him, it’s not allowed for other Jews to help him [this is a complicated topic, and I don’t want to imply that R. Feinstein is the only view; when a Jew will sin whether or not we help him, I think there are decisors who allow us to help him. I could also imagine, here, that someone would say that we are not required to predict ahead of time that this boy will take nonkosher food when unnecessary. But we’re not here for a full analysis, we’re here to learn from R. Feinstein]. That’s especially true for this patient, for whom there’s no clearly established mortal danger. It’s even true for a minor (who’s not halachically liable for his actions), since our putting the child in that institution is like feeding him the nonkosher food ourselves, which is not allowed. R. Feinstein is so certain of this view that he says that even if the boy’s non-halachically observant guardian (his parents were deceased) had already institutionalized him, the observant trustee of the estate could not pay for his care. If the parents were observant themselves, he adds, the trustee would also bear a financial responsibility to them, since they would not have entrusted him with this money to use it for a prohibited purpose.   The boy could be sent to Israel, to a facility where they serve kosher food. [R. Feinstein does not elaborate, but I wonder whether the availability of other facilities factored in his decision. He does seem adamant that if the boy is going to choose to eat nonkosher, we would not be allowed to put him in a position to do so, even if he could do so when he’s out on his own). The last line of the responsum walks much of this back, because he adds that if the government requires this way of treating the patient, the trustee would have to pay, even though it’s against halachah. But the suprising larger principle is that saving lives permits actions that violate the Torah, even if the person will enjoy those actions, but it never permits wanting to violate the Torah. 27 Av: R. Betzalel Stern on Ma’aser Kesafim We all define our financial needs differently, so what can seem like an easy expense for one person seems out of reach for another, sometimes when they both objectively have the same set of financial resources. I mention the issue to shape our reading of Shu”t Be-tzel HaChochmah 4;161-4, the third of which is dated 27 Av, 5738 (1978), where the questioner might seem to us to be trying to avoid a relatively insignificant cost. But who knows what his needs really were? He was due to go to a wedding in Canada, where the ba’al simcha, the father of the groom, was his mechutan, the father in law of one of his children. This mechutan was providing a bus from Williamsburg to the wedding, but it was a long bus ride, difficult for this man to bear. He wanted to fly (it would cost $100, which might be as much as $400 in current money), and asked R. Stern whether he could take the cost of the tickets out of his ma’aser kesafim, the tenth of his income Jews traditionally separate for good causes. We often speak of ma’aser kesafim as being set aside for charjty, but (as R. Stern will detail) tradition allowed for other mitzvah purposes as well. A key assumption of the question (correct, to some extent) was that ma’aser kesafim can be used for mitzvah purposes in general. Fostering the joy of a bride and groom qualifies (he assumes), his only question being whether the availability of a free option means the flying is no longer justified, in ma’aser terms. Authorized Ma’aser Money Uses Rema Yoreh De’ah 249;1 records the view of Maharil, who prohibited using money set aside for ma’aser to purchase candles to light a shul, and required giving it to the poor. Taz says Maharil’s rule applies where the person did not think of his ma’aser money when purchasing the candles. In such a situation, he is trying to pay off an existing debt with ma’aser money. He would have been able to buy the money, originally, with ma’aser money, as long as he said so at the outset, since the candles for a shul count as a mitzvah purpose. This accords with the earlier view of Maharam (cited also by Taz), who allowed using ma’aser funds to serve as a ba’al berit (later in the responsum, R. Stern tells us a ba’al berit can be the father of the baby, the mohel who performs the circumcision, or the sandek, who holds the baby; the financial element seems to be paying for the costs of the circumcision), to pay for a wedding, or to buy sefarim, books of Torah knowledge, to learn and to lend (later in the responsum, R. Stern will take up whether these uses are only for those who otherwise could not afford it). How Customs Become Oaths Chatam Sofer reconciled Maharil’s ruling with Maharam’s permission to use such monies for other mitzvot by looking at the person’s pattern beforehand. A man who had already given his ma’aser to the poor three times had set up an expectation (perhaps unbreakable, as we’ll see) to give those monies to the poor. But until the pattern is established, Chatam Sofer thinks Maharil would agree the person could announce he is setting the money aside to use for other mitzvah purposes, too. (He would have to announce it because ma’aser generally goes to the poor, creating a baseline assumption that’s where it’s headed). One gift of ma’aser kesafim to the poor specifically might itself obligate always giving one’s ma’aser to the poor, R. Stern points out. Yoreh De’ah 214;1 requires a person to treat as a vow any good custom s/he’s adopted, intending to act that way forever. There, one time acting on the intent makes it like a vow, which would require hattarah, release, to be changed. Chatam Sofer spoke of three times, R. Stern says, only to cover the case where the person who set aside the ma’aser money had no specific intent to use it only for the poor. Three times doing so will still make this practice like a vow, and such a person could no longer use his/her ma’aser for other mitzvah purposes [without hattarah, I would think, but R. Stern does not mention it]. Mitzvot For the Poor, or For Anyone? As I mentioned earlier, the idea of using ma’aser money for other mitzvot could mean other mitzvot which are needs of the poor. When Taz allowed buying candles with ma’aser money, it could have been when the shul used this as a fundraiser, with the money thus raised directed to their communal charity fund. Similarly, Maharam might have permitted funding a berit or wedding with ma’aser money only where the father of the baby or the groom was unable to pay for it himself, and the purchase of sefarim, books of Torah learning, only where the people who were going to use them were too poor to get such sefarim on their own. Sha”ch, paragraph three, dispenses with this possibility, says the ma’aser money can be used to fund celebrations whose celebrants could afford it without. On the other hand, R. Stern says he searched and found a sefer called Nahar Mitzrayim (GET LINK), by the turn of the 20th century chief rabbi of Cairo, who held ma’aser money could be used for weddings or circumcisions only where the parties involved could not finance it themselves. [R. Stern struggles with the language, which said “if he is unable to afford it,” possibly referring to the person who is going to give the money, but it seems to me he meant if the people involved cannot afford it]. Nachalat Shiv’a made the point more clearly, ruling one may use ma’aser money for a poor groom or to pay for a berit celebration even if the person himself could have paid for it from his own funds [ma’aser money is appropriately used to help the poor celebrate life cycle events, in other words, even though the money is ostensibly set aside for the poor’s more ordinary needs]. Nachalat Shiv’a did not think the same was true of buying sefarim, interestingly enough [because I might have thought if the poor really have no access to sefarim other than these, the same logic applies]. Bringing It Back to Our Bus/Plane Ride The bride and groom in the case at hand seem to be doing fine, since they’re covering their own wedding costs, and the father of the groom is paying for the bus to Canada. For the man asking R. Stern about whether he can take a plane, the way in which he set aside his ma’aser money now matters. If he set it aside with no conditions, it falls into the general assumption of ma’aser money, to be used for the poor, especially if he’s given ma’aser three times before without any particular conditions. If he did make a condition, contributing to a wedding is a mitzvah purpose to which he could give his ma’aser, but only as long as he could not afford it otherwise, would not perform this mitzvah if he could not use his ma’aser money. (This last condition came up in R. Stern’s discussion of Nahar Mitzrayim, which I left out to keep our discussion brief). Travel Costs Are Not Ma’aser Deductible Now R. Stern turns his attention to a crucial distinction between the wedding costs he’s discussed so far and what this man is asking. To pay for the wedding itself is one matter, but the man’s travel costs are (at best) to facilitate his presence, to let him to be part of enhancing the joy of the bride and groom at the wedding. In halachic terms, the money would be going for a hechsher mitzvah, a preliminary need to make the mitzvah possible; to use ma’aser money for a hechsher mitzvah raises new issues. Nahar Mitzrayim again showed R. Stern what he thought to be the correct approach. Nahar Mitzrayim discussed a person who managed to get to Israel to visit various holy sites. The donations he promised there to support Torah scholars and the poor could come from ma’aser money, but the costs of the trip itself, and/or the pilgrim’s room and board, could not. Were these the only poor people in the world, and s/he had no other way to get the money to them than to bring it himself, there would be an argument for charging the travel expenses to his ma’aser fund; but that’s not true, neither for the poor (there are poor where he lives) nor for other mitzvot he could perform with this money. The Uncertainties of the Joy of Bride and Groom The mitzvah of simchat chatan ve-kallah, enhancing the bride and groom’s joy, complicates the question as well, since the questioner will only have fulfilled a mitzvah if the bride and/or groom will actually care that he’s there, if their joy will in fact be heightened. If they’re unmoved by his presence, he will not have fulfilled a mitzvah, so how can he risk using his ma’aser money for what will turn out to be a non-mitzvah purpose? R. Stern knows Berachot 6a says Hashem counts the failed attempt to do a mitzvah (foiled by circumstances beyond the person’s control) as if the person did it, but the Gemara means only Hashem will reward the person as if s/he had accomplished what s/he set out to do. In fact, though, no mitzvah will have been performed (and therefore there will have been no right to use ma’aser money in the attempt). Only if the questioner has solid evidence the groom really cares about his presence (such as his pressuring him to come) could he make a plausible argument in favor of using ma’aser money, but even then it will be questionable (since what enhances the joy of the bride and groom is such a slippery concept). Upgrade in Travel as a Ma’aser- Deductible Expense The last little piece of the third responsum (we don’t have room for the fourth, which moves on to a broader discussion of the acceptable uses of ma’aser money for mitzvot other than charity) also questions the man’s assumption that he could have used ma’aser money for a plane ticket if he did not have the option of a free bus. R. Stern thinks it depends on whether he could have gone by bus at all. Maharam spoke of someone not being able to perform a mitzvah without using ma’aser funds, and says it’s someone who cannot do it now, and would not borrow the necessary money to do the mitzvah. For our case, R. Stern thinks the man only qualifies as someone who would not do it if he would not take a bus under any circumstances, even with a break over the course of the ride. If the trip by bus is doable, although not preferable, ma’aser money cannot be used to make it easier. Unless the bride and groom are poor, in which case the rules for using ma’aser money are loosened, in the name of bringing their joy to its peak. He then gives a brief review of the halachic conclusions, which I will give even more briefly: unless a person set aside ma’aser money with specific contrary intent (and there’s some question as to whether s/he is allowed to have such intent once s/he has given ma’aser three times without such conditions), it is to be for the poor only (in all their needs, including wedding costs). However, enhancing the joy of a bride and groom is not clearly a mitzvah act, since we do not know whether the bride and/or groom will care. More, travel costs are not the same as paying for the wedding itself, making it unlikely one can use ma’aser money for those purposes; and certainly upgrading one’s travel to make it more convenient can be done only in very limited circumstances. There might be room to charge his plane ticket to his ma’aser funds, in other words, but it’s not likely.  28 Av: R. Moshe Feinstein on Insurance Iggrot Moshe Orach Chayyim 4;48, from 28 Av, 5725 (1965), records R. Moshe Feinstein’s response to a query about whether it was better to buy insurance that can be used during one’s lifetime, thus helping finance old age, or use that same money to buy a policy that only pays off in the event of death, but gives a bigger payout for the same money (e.g., is it better to buy whole life, which has a cash value but is more expensive, or term). The Counsel of Wise Men He comments that this is a request for advice (implying that there’s no fixed halachah on the issue), and true counsel has been taken from us until Hashem returns our counselors as in days of old (a phrase we say in the bracha of השיבה שופטינו). He can only do his best to share what seems correct based on Chazal. It would be easy to skip over this as a sort of pious or humble excuse, but I don’t think he meant it that way. In his view (and this responsum is full of issues that are his view, and which may not feel wholly comfortable for us), when Jerusalem was built, when we had a king, Temple, priests, etc., the wise men of the Jewish people had greater insight as well; in those times, even their not-specifically-halachic advice was more authoritative. Were he, R. Moshe Feinstein, writing this responsum in that atmosphere, his insight would have been better, he could have more confidently recommended a course of action. I focus on that both because many of us have become used to ignoring those less rationalistic claims of the religion, but also because it gives us room to question assumptions in this responsum more than most. It’s always enlightening to learn R. Moshe’s views, even if here we might see places that he has gone in a questionable direction. The Original Responsum His first point is that he has previously dealt with the subject of insurance generally, in Iggerot Moshe Orach Chayyim 2;111, from 27 MarCheshvan 5724 (1963), so let’s review that as background. He was asked whether taking insurance betrays a lack of trust—perhaps we are supposed to trust Hashem will take care of us? Perhaps, as some Talmudic statements seem to say, as long as we have our sustenance now, we need not and should not work to secure our future? Perhaps security only comes from Hashem, and to act otherwise lacks faith? He rejects that. R. Moshe says, rather, that insurance is no different than other business endeavors, which we are allowed and obligated to pursue. To do otherwise would arrogantly assume we are so meritorious as to have our needs taken care of even without working. Earning a Livelihood Naturally or Miraculously Even those who are that meritorious have to work, because we are not allowed to rely on miracles. He extends that, in fact, to praying for a miracle, a conclusion he draws from Berachot 60’s discussion of the impropriety of praying for a change of gender of a fetus growing in one’s already-pregnant wife. While tradition had it that Leah did just that—praying for Dinah to be a girl, so Rachel might have a second son—the Gemara sees Leah as exceptional. One opinion claimed that her prayers were offered in the first forty days of the pregnancy which, in the Gemara’s view, meant the fetus’ gender had not yet been set. We cannot expect to be supported miraculously. While working, we also have to know that our successes are all supported by Hashem, are not purely a function of our own efforts. That’s what was meant by punishing Adam that he would have bread only by the sweat of his brow. That balance is, again, a challenge to many Jews today. Some treat livelihood as if it will come without effort, others treat it as completely a result of their own efforts. R. Moshe is reminding us of the two-sides to keep in mind—our effort is required and it’s also all from Hashem. Teaching Our Children a Profession In Kiddushin, R. Nehorai says he would forego all other professions and teach his sons only Torah, seeming to contradict R. Moshe’s view. He says R. Nehorai meant that only while they were little, since small children cannot learn both Torah and a profession. Since Torah is an absolute obligation, it must be that we are allowed to defer teaching our children how to make a living until later. As proof, he notes that for hundreds of years, common custom has allowed rabbis and teachers to take payment for their rabbinic and Torah-teaching activities, despite the clear tradition that teaching of Torah be free. The reason is that otherwise we would not have leaders who knew enough Torah to fulfill their function. It’s that sense of the overwhelming need of Torah study that means we should focus only on Torah when children are little. We don’t need to work on Shabbat and Yom Tov, since it’s prohibited, and yet Hashem provides sustenance for those days without our working. So, too, Hashem will provide sustenance to our children, when they grow up, even if they don’t work, or learn a trade, in those younger years. When the child gets older, and needs to support a family, we can teach him whatever; by that point, too, he will have achieved the level of Torah study he’s going to achieve, so there’s less loss in carving out time for learning a profession. But even R. Nehorai would have agreed that the sons would need to work to support themselves. Not only that, R. Moshe assumes that Rambam ruled according to R. Nehorai, since he never records a father’s obligation to teach his sons a trade, although he does rule, Hilchot Talmud Torah 3;10, that people have to work rather than expect to be supported. A Fault Line Between “Right” and “Modern” The comments on Torah study for children lay bare a divide between strands of Orthodoxy; I pause to notice it, because I think each side has what to learn from the other. R. Moshe assumes the study of Torah to be so demanding that the elementary years (at least) leave no room for anything else. Coming from a man whose mastery of traditional literature was astonishing—and who spent his life building on the foundations he laid in his youth—that’s a claim we have to take seriously. Not least because if we take an honest look at children today, especially but not only in the more Centrist or Modern communities, there’s more than enough reason to believe that they know less than they should or could. At the same time, I wonder whether that has to go as far as R. Moshe does. While children in many Modern or Centrist schools do not learn enough Torah, does that mean there’s not enough time? Is it true that a child who studies Torah seriously for four hours a day—every day, or 6 days a week, with only four weeks of summer vacation rather than ten-- is necessarily crippled in his knowledge of Torah? It might be that that child will never know as much as R. Moshe, but is that a universal standard? Two other factors seem also important to me, about which I wish I could have asked R. Moshe. First, some children cannot put in a whole day on Torah study even if we demanded it. A system that gives a child nothing but Torah to study works for many (as more “right-wing” institutions, especially in Israel, show), but it also doesn’t work for many. Even as we might prefer that children spend all of their childhoods building the knowledge of Torah, it might not be possible. Second, R. Moshe’s system also closes off whole areas to children—most people cannot pick up a musical instrument at fifteen, for example, and become world-class. R. Moshe might not have cared, but it seems reasonable to wonder whether the Torah requires that we limit children’s horizons in that way. Especially since a young man of eighteen who realizes that he might want to be a doctor but has not gotten any education all along will have serious catching up to do, and might not have the wherewithal to do it. On the other hand, we cannot forget, as many do, the underlying and unquestionable assumption that one important task of Jewish childhood is a fundamental knowledge of Torah, and there is much reason to believe we are not fulfilling a basic standard, let alone R. Moshe’s. Back to Insurance It’s also true that the view that Hashem gives us our earnings tends to be a more “right-wing” way of phrasing, despite Kiddushin 82’s recording R. Meir’s statement (as cited by R. Moshe) that poverty and wealth is not a function of profession—there are poor doctors and lawyers and rich plumbers and sanitation engineers (although that’s not necessarily the way to bet). We have to approach our careers with the knowledge that Hashem can enrich us in whatever profession we choose, and can also prevent us from earning well, whatever profession we choose. Insurance, for R. Moshe, is one more way we do our due diligence in opening ways for Hashem to support us. Moving now to the 1963 responsum, if the insurance pays off during our old age, it’s clearly part of business, since it allows us to work somewhat less hard, knowing that some of our retirement and our desire to leave an inheritance for our children is taken care of. Normally, making more than we currently need so that we can save for retirement and an inheritance is almost like a form of miracle. Hashem guarantees us our livelihoods, not extra for the future, and R. Moshe is opposed to praying for the miraculous. But since human ingenuity came up with insurance, we are clearly allowed to take advantage of that. What Living is Guaranteed Given the need to choose types of insurance, R. Moshe cites Niddah 31, where R. Yitzchak in the name of R. Ami says that a man comes with his bread in his hands. R. Moshe understands that to mean that a man’s bare sustenance is guaranteed, for him and his family (those he is obligated to support by either law or custom—even if technical halachah didn’t require supporting children in college, if the custom became to do so, a man is guaranteed, as long as he makes basic efforts, to find that sustenance), without needing any special prayers. That doesn’t mean it’s easy, or that all will get the same levels of sustenance. Some will work hard to scratch out a living, some will have wealth dumped on them, and everything in between. But it does mean that while a man is alive, he and his family will find their means of support. That same statement in Niddah seemed to see women as less guaranteed, on their own, of those kinds of sustenance. They would need greater merits and/or response to their prayers. I recognize that many today would not accept that dichotomy; in this case, R. Moshe uses it in a way that I don’t think will bother any of us. Based on his assumption about what’s guaranteed, R. Moshe recommends the man focus his insurance buying on providing for his wife after his passing. While he’s alive, he can expect Hashem to provide for the two of them, as long as they try. On her own, a different calculus comes into play, and for that reason, the husband should do all he can to see to it that she’s left with what to sustain her in comfort. Taking Advice From R. Moshe There are obviously many ways we could question this conclusion, the easiest one being that it’s not always clear that statements such as the one in Niddah are meant as literally or halachically relevantly as he took it. In addition, R. Moshe himself started off by denying that he was ruling; he was sharing the perspective that seemed to him to extrude from the sources. I won’t raise those questions here, since I’ve already taken longer than I usually do. I will leave it to readers to think about these two rich responsa, which make explicit important assumptions R. Moshe brought to his experience of the world. Some of those, I think, are largely undebatable, for all that I know observant Jews who do not realize them. Others are more open to further consideration and clarification. Sum total, R. Moshe allows buying insurance, as part of our making our own efforts to sustain ourselves, part of the task that Hashem set us when placing us on earth. Even as we also have to recognize that that sustenance comes from Hashem.  29 Av: Three Teshuvot by R. Khalfon Moshe HaKohen on Extralegal Powers of a Judge While you read these responsa summaries once a week (I hope), I have been writing them for a couple of years, so that as I come around in the calendar, I see earlier ones I’ve written, sometimes with interesting juxtapositions. For this week’s example, we are going to study a few short responsa of R. Khalfon Moshe HaKohen, who lived and taught in Djerba (an island off of Tunisia) from 1874-1950. He was a prolific writer; on most dates I search for responsa to present here or in audio shiurim on ou.org, there are multiple entries from his Shu”t Sho’el ve-Nish’al. It’s also a great name for a book of responsa, since it translates, loosely, as Responsa of Asking and Being Asked (or, maybe, as Responsa of One Who Asked and Was Asked). I usually don’t present his responsa, for various reasons, but I also feel wrong for ignoring him, so I occasionally look to see if one of his will fit this forum well. Often not, but on the 29th of Av, 5686 (1926), he wrote three responsa (Sho’el ve-Nish’al 1;Choshen Mishpat 7,8, and 15) revolving around one topic, how judges can enforce their will even beyond the strict letter of the law. Once I was doing so, I went to see when else I had presented his ideas, and found that it was only (so far) on the 21st of Av. So that if Hashem allows me to ever convert these responsa into a book, it will seem to readers as if in Av, I suddenly developed an interested in R. Khalfon HaKohen’s writings, when in fact I found these responsa at least a year apart (and maybe two). Requiring a Not-Required Oath In a perfect world, litigants would argue only in ways they believe to be true, witnesses would testify the truth as they saw or experienced it, and judges’ job would be to weave a narrative from that. In reality, judges at least sometimes sense a litigant is lying. The question presented to R. Khalfon HaKohen was whether the judge could impose an oath on that litigant (or both litigants, to avoid seeming biased) not strictly required by halachah. He opens by noting that Shulchan Aruch, Choshen Mishpat 15;4, allows a dayan mumcheh, an expert judge, singular in his generation, to declare a defendant liable even if the evidence doesn’t prove it, as long as the judge’s thorough investigation convinced him that that was the truth. Rema adds that such a judge could also obligate an oath not legislated by halachah. While that seems limited to exceptional figures, Rema to Choshen Mishpat 87;20 allows any judge to raise the level of severity of an oath a litigant is taking (holding an item of mitzvah, which makes it a more serious oath), and level other threats as well. Whatever it takes, it seems, to get at the truth. R. Khalfon at first thinks to explain the difference between the two statements as that the first was talking about a judge extracting money without enough evidence to do so; that needs a yachid be-doro, a singular judge of a generation; any judge can obligate oaths, however. That doesn’t explain why Rema said it twice, without noting that he’s already written it, and cited different sources. When There’s a Seeming Doubling in a Work R. Khalfon notes a work called Mishkenot haRo’im, which quoted Sema, a commentary on Choshen Mishpat, and then offered his own idea. Their different answers show us the two ways to react when an author repeats himself. Sema thinks Rema in fact wrote the same thing twice, without noting that it was repetitive or that he was attributing it to different sources. That’s one option: to note an anomaly in an earlier work, but not read too much into it. Mishkenot haRo’im took the other tack, arguing that the two sources are different, the second more limited than the first. That second Rema, he says, means a regular judge can only add severity to an existing oath. Some oaths are a function of Torah law, some were added by Chazal; in court cases where the litigant was already obligated to swear at a derabannan level, the judge could require the litigant to hold an object of mitzvah, ratcheting up the seriousness of commitment to truth. Given two ways to see it, which do we follow? R. Khalfon says that since Sema is more of a recognized expert in understanding Shulchan Aruch, since he wrote a full explanatory work on it, we trust him more le-halachah, and accept the idea that any judge can obligate an oath where he thinks it’s necessary to find the truth. [This is an important claim that is sometimes not noticed: given two authorities, both learned and reputable, R. Khalfon is willing to say Sema wins because he’s more expert in this area of discourse, since he spent concentrated time producing a full-fledged work on a topic. The recognition that working at something systematically can convey an expertise that another also very learned author won’t have seems to me both correct and too-little mentioned.] The first extralegal power of the judge he has inferred from Rema and Sema is the right to require oaths of a litigant even though the codified law does not necessitate such an oath. Issuing a Cherem Stam For False Claims Sometimes an oath isn’t in place, however. Let’s suppose one litigant claims the other owes him money, and the accused is irritated at having to take an oath to defend himself [oaths are serious business; since the time of the Mishnah, some people have chosen to pay money to avoid having to take even a truthful oath that would have exempted them from payment]. Rambam, To’en ve-Nit’an 1;11 reports that his teachers created a vehicle for such a person to express his irritation. Before swearing, the litigant can issue a cherem stam, a declaration of excommunication directed at anyone who makes false claims to extract an unnecessary oath from someone else. (Theoretically, that means that if a third party knows someone who did that, that third party will treat the false accuser as if he is in cherem). Rambam sees it as a way to discourage such false accusations, thus avoiding or minimizing the taking of Hashem’s Name (in the course of an oath) unnecessarily. If Rambam’s rebbeim could do that, R. Khalfon writes, so can any judge [a simple but fascinating assumption, that judges in each case are not fundamentally different than Rambam’s teachers; if they could set up charamim not previously mentioned in halachic literature, so can any later judge]. Adds R. Khalfon, the judge can do this even if the oath-taker didn’t ask for it, if he thinks it will help. Judges can obligate oaths and issue charamim, as seem appropriate to them. It Can Get Complicated The third responsum from this date addresses cases where the claim wasn’t strong enough to obligate any kind of oath. There, sometimes, halachah allows the frustrated litigant—who, at least officially, thinks he is owed money he cannot prove he’s owed—to issue a cherem stam on anyone in possession of money that belongs to someone else. The accused claims a cherem stam is being issued against him for no good reason (that some people will suspect should apply to him), and wants the right to first issue a cherem stam against those who make false accusations in order to be able to issue a cherem stam [it’s sort of like a rabbit hole, taking us further downward—A claims money from B, without sufficient evidence. A thinks B is cheating him, and wants to issue a cherem. B, either sincerely or deviously, claims he’s being hounded, and now wants the right to issue a cherem against A for hounding him]. R. Khalfon notes that Choshen Mishpat 87;22 says that anyone obligated to take an oath can issue a cherem stam beforehand. In that paragraph, Shulchan Aruch mentions all three levels of oaths—Biblical, serious Rabbinic, or shevu’at heset, the lowest level of Rabbinic oath—and says the accuser has to answer amen. Were it possible to issue such a cherem even against an accuser who was leading only to a cherem stam on the accused, Shulchan Aruch should have said so. The reason maybe he can’t, R. Khalfon says, is that the whole cherem stam idea was an add-on to existing legal structures, and we don’t add on to add-ons (we don’t make a takanta le-takanta, in halachic parlance). Also, we might only allow ourselves to go as far as those earlier authorities did. What the court can do, if they sense a fabrication, a stratagem to extort a payment [comparable to today making a false claim against a city or insurance company, betting they’ll settle rather than fight it out in court], or to embarrass the person [increasing the accuser’s chances of being awarded some future contract or right, since this accused will now have this embarrassing incident in his past], is they can issue a cheme stam on anyone who levels false claims [the original idea was for the accused to do it; R. Khalfon is saying have the court issue it, aimed at any false claims of any sort]. Another right of the accused comes if the accuser wants to twist the knife, to require the accused to be present when the cherem stam is issued, or even wants the accused to answer amen. In such situations, R. Khalfon says, the accused can insist the accuser also answer amen to the cherem (meaning that the accuser recognizes the cherem applies to him as well, if he is acting wrongly). That’s because Choshen Mishpat 82;9 says we don’t punish a borrower who left the courtroom during the issuance of the cherem, and that we issue it not in his presence. If so, the accused doesn’t have to be there, so if the accuser insists that he stay, he can insist the accuser respond as well. Some of the ways we have to work to ensure that liars and false accusers don’t profit from their misdeeds, and that those falsely accused have the maximum defenses against such accusations. 96