When Does One Make a Leisheiv B'Sukkah?

The Rambam in Hilchos Succah 6:12 writes (in the name of his Rabbis as well as l'halacha) that on the first night of Succos one should make Kiddush standing up so that he can sit down after he makes the bracha of leishev b'succah (thus fulfilling the inyan of making the bracha before the mitzvah). [Derech Agav - Many are medayek from here that the rest of the year the Rambam would hold to sit during kiddush.] The Rosh in Succah 4:3 asks, the mitzvah of "sitting" in the Succah doesn't really mean sitting literally?! It just means to live in the succah. So if you truly want to make the bracha before the mitzvah - why not make it before you enter the succah?

The Taz in O.C. 643:2 anwers that just walking into a succah isn't recognizably a mitzvah of dwelling in the succah, because you may just walk right back out. Chazal were only mesaken a bracha for recognizably dwelling in the succah.

R' Hershel Schachter in Eretz HaTzvi Siman 3 writes as follows:

Chachamim weren't meseken a birchas hamitzvah for a kiyum hamitzvah, but only for doing a maaseh mitzvah. Granted that one who enters a succah and is standing there has been mekayem a mitzvah by entering of yeshivas succah, however on a kiyum like this there is no takkana for a bracha.

And even though entering and walking into the succah is certainly a maaseh gamur, nevertheless the Rabbis of the Rambam hold that it is not a maaseh mitzvah mesuyam until you sit mamash in the succah.

Basically R' Schachter is being mechalek between a maaseh mitzvah and a kiyum mitzvah. One only makes a bracha on a maaseh mitzvah and not a kiyum. R' Schachter points out in the footnote that not everyone agrees to this principle. For example, if someone puts a mezuzah up in someone else's house - who makes the bracha? The guy who puts it up is doing the maaseh mitzvah. The owner of the house has the kiyum. It's actually a machlokes who makes the bracha. Here R' Schachter is following the opinions that it's the one who does the maaseh mitzvah that makes the bracha.

Regardless, R' Schachter himself points out the downside of this approach. Isn't walking into the succah a maaseh? So we haven't really answered the question. Why make the bracha specifically before sitting down? So R' Schachter circles back and says that although entering is a maaseh it's not a maaseh mesuyem (a structured and defined maaseh).

We posted earlier on a similar issue. Why not make a bracha on sleeping in the succah? In that post we quoted from Reshimos Shiurim on Succah that R' Soloveitchik asks, is sleeping a kum v'aseh or a shev v'al taaseh? He seems to conclude it is shev v'al taaseh. Meaning, in halacha "going"to sleep isn't considered active, but passive. Thus, we suggested that it is not a maaseh and there is no bracha. If so, perhaps the same is true by merely entering the succah. Just "being" in the succah isn't an action. It isn't a maaseh mitzvah - even if it is a mitzvah. Perhaps that is also what R' Schachter means when he says it isn't a maaseh mesuyem.

It All Depends on How You Define the Word "Count"

The Torah tells us to "count" things several times. Sefiras HaOmer is a famous example of counting. There is also the "7 clean days" counted by a zavah. Finally, there is also the counting of years leading up to Yovel.

The Rambam in Shemittah V'Yovel 10:1 implies that Beis Din HaGadol has a mitzvah to actively count the shemittah years until reaching yovel. The Rambam does not mention making a berachah on this count.

However, Tosafos in Menachos 65b (d"h Usfartem) does mention counting with a beracha. Although Tosafos in Menachos is mesupek in the end, Tosafos in Kesuvos 72a is definitive that Beis Din does make a beracha on the count towards yovel.

Interestingly, Rabbi Akiva Eiger (Shu"t Kamma 29) relates making a beracha to having to count out loud (as opposed to just counting in one's brain). R' Akiva Eiger says that since the Rambam mentions no beracha perhaps the Rambam holds that Beis Din does not have to vocally count the years of shemittah. I'm not sure how a unit of people like Beis Din would count in their brains - maybe they could put up a sign what year it is or something like that. In any case, the pashtus of the Rambam is that Beis Din does count out loud - but we would still have to deal with the beracha issue.

What about the count by zavah? R' Akiva Eiger mentions that the poskim unanimously agree that the zavah doesn't actually need to count the days - she just needs to "keep count" - meaning to keep track of how many clean days she has had. However, it is not totally unanimous.

The Shelah is mentioned in a note on the side of Tosafos in Kesuvos 72a that he understands Tosafos to hold that a zavah actually does count the seven days - she just doesn't make a beracha. The other way to read Tosafos is that Tosafos is saying the Zavah doesn't have to count at all.

The Noda B'Yehuda (Tinyana Yoreh Deah 123) famously comments that the Shelah in his holiness made a mistake and added mitzvos that don't exist - for there is no mitzvah for a zavah to actually count the days. She only needs to keep track.

Besides the Shelah I saw that Footnote 4 on the same R' Akiva Eiger mentions that the Sefer Agudah in the name of the Ri (Menachos 86 Siman 32) also holds that the Zavah has a mitzvah to count. So again, it's not totally unanimous.

Finally Tosafos in Menachos comments on the grammer of the pesukim. By Yovel it says "and you will count" in singular. Therefore, it refers to Beis Din. However, by Sefiras HaOmer it says "and you will count" in plural - which means each individual must count.

However, we should note that the word "count" is mentioned in reference to sefiras haomer more than once and the singular is also used. In fact, the Sifri at the end of Parshas Reah implies that the mitzvah of sefiras haomer is two mitzvos - one on Beis Din and one on the individual. This is consistent with the two usages in the pasuk. However, the Gra changes the girsa of the Sifri that the count of Beis Din is only a hava amina in the Sifri - and not l'maskana. Nevertheless, the Chizkuni at the beginning of Parshas BeHar seems to say even l'maskana that there are two mitzvos by Sefiras HaOmer - one on Beis Din and one on the individual.

*For more on this topic see Sefer Eretz HaTzvi by Rabbi Hershel Schachter Siman 3.

Shaving with a Razor - Taam HaMitzvah

The Tur in Yoreh Deah Siman 181 quotes the Rambam who gives a reason behind the issur of shaving with a razor. The Rambam says that the reason behind this prohibition is that since it was the way of idol-worshippers to shave in this fashion therefore the Torah prohibited it. (See Rabbeinu Bachya VaYikra 19:27 for some different approaches.) The Tur questions the need for the Rambam to give the taam hamitzvah at all. Aren't all mitzvos obligatory regardless of the reason behind them? (See the commentators on the Tur who address his argument.)

In general this Rambam does pose a difficulty because it is found in Mishneh Torah. Generally, the Rambam reserves taamei hamitzvah for the Moreh Nevuchim. Why did the Rambam feel it was necessary to state the taam hamitzvah for shaving with a razor?

I believe the answer is simple. The Rambam places the halachos of giluach hazakan in Hilchos Avodah Zarah Perek 12. Therefore, the Rambam has to justify this placement. Imagine if the Rambam hadn't written that these laws of shaving were due to the practices of idol-worshippers. The question would jump off the page! What in the world are halachos of shaving doing in Hilchos Avodah Zarah??

This highlights the general difference between the way the Rambam categorized halachos and the way the Tur did. The Tur divided everthing into four basic sections - Orach Chaim, Even HaEzer, Choshen Mishpat, and Yoreh Deah. Let's take Yoreh Deah as an example. It is essentially is a collection of issur v'heter. The different issurim dealt with in Yoreh Deah are not necessarilly related to one another. Shaving and Kashrus don't really go hand in hand. The same can be said for Orach Chaim. The Rambam placed Hilchos Shabbos and Hilchos Tefillah in totally different sections of Mishneh Torah. But in the Tur they are all part of Orach Chaim.

The categories that the Rambam created were not merely meant for convenience. They were meant to describe the essential nature of the halachos. Hilchos Tefillah for example is in the section Ahava - Love. By placing Hilchos Tefillah in Ahava the Rambam is telling us something about the nature of Tefillah. Tefillah has to do with loving the Creator. The Tur, on the other hand, places Hilchos Tefillah in Orach Chaim - laws that have to do with day to day living. The Tur is noting a characteristic of Hilchos Tefillah - but he is not attempting to describe the basic nature of Tefillah.

In the Tur's division of the halachos shaving isn't part of any broader area of halacha. It is simply it's own category - the laws of shaving of the beard. In the Rambam shaving belongs to the broader category of Hilchos Avodah Zarah. Hilchos Giluach HaZakan does not merit its own section in the Rambam's Mishneh Torah.

We'll just conclude by noting the obvious - that the goal of the Baal HaTurim in writing the Tur was totally different than the goal of the Rambam in writing Mishneh Torah. The Baal HaTurim was concerned with recording the practical halacha l'maaseh so people would know what it is they were supposed to do. That is why he divided the laws into four sections which would be intuitively searchable to the laymen. If I want to know how to live my daily life I'll check Orach Chaim. If I want to know about money matters - Choshen Mishpat. That's also why the Tur left out all the laws that don't apply nowadays. The Rambam on the other hand was interested in recording - in an organized fashion - all of Torah Shebaal Peh. The categories weren't created for the purpose of easily finding out what to do - but rather they were created to help understand all the details within their broader context.

Shliach L'Havaah

When it comes to marriage and divorce generally speaking the man or the woman can appoint a shliach to carry out their respective parts of the process. A man can appoint a shliach l'holacha to deliver the get (or kiddushin) to his wife. Likewise, a woman appoints a shliach l'kabbalah to receive the get.

The Ran in Gittin on Daf 28a (dapei harif) discusses the possibility of a woman appointing a shliach l'holacha to deliver her the get from her husband. The Rambam says that this is possible and he calls this shliach a "shliach l'havaah". This Rambam is found in 6:4 of Hilchos Gerushin:

ד] וְכֵן הָאִשָּׁה שׁוֹלַחַת שָׁלִיחַ לְהָבִיא לָהּ גִּטָּהּ מִיַּד בַּעְלָהּ, וְזֶה הוּא הַנִּקְרָא שְׁלִיחַ הֲבָאָה. וְאֵין שְׁלִיחַ הוֹלָכָה וַהֲבָאָה צָרִיךְ עֵדִים

The question is obvious. How can a woman create a shliach to deliver the get? If the delivery of the get is the husband's job, shouldn't a shliach delivering the get automatically be a shliach of the husband? In what way is the shliach l'havaah a shliach of the woman?

The Ran suggests that really a shliach l'havaah is a shliach l'kabbalah al hatnai. Really, the shliach is fully the shliach of the woman and upon his reception of the get the woman should be divorced. However, the woman makes a tnai in the shlichus that the divorce will only happen upon her receiving the get.

(The idea that the woman can make a tnai in the reception of the get is interesting because in general a woman is divorced against her will - and thus has no "control" to make tannaim. Apparently, the Ran is saying that when the woman makes a shliach she can make tannaim within the shliach.)

While this pshat works in general - it seems that it cannot work in the Rambam. The Rambam we quoted above clearly states that no eidim are needed when appointing a shliach l'havaah. This is similar to a shliach l'holacha and not shliach l'kabbalah. If a shliach l'havaah was merely a shliach l'kabbalah with a tnai - surely eidim would be needed.

I heard the following pshat to explain the shitas haRambam. There is a halacha of nesinah by get - that a get must be given to the woman. The husband may not place the get on the ground and have the woman pick it up. This is lacking in nesinas haget.

By shliach l'havaah we can suggest that the shliach is the yad of the woman only for the purpose of fulfilling the halacha of v'nasan b'yadah. When the husband gives the get to the shliach the nesinah has been accomplished. Then, the shliach gives the get to the woman and with her zechiyah in the get she is divorced. But, the shliach l'havaah doesn't even need to give the get to the woman because the giving has already been done. Rather all that remains to be done is the woman taking possession of the get. Thus, the shliach l'havaah can theoretically place the get on the ground and allow the woman to pick it up and there would still be a divorce.

According to this we understand why there is no need for eidim by shliach l'havaah. A shliach l'havaah is not a shliach l'kabbalah. Only a shliach l'kabbalah needs to be appointed with eidim because that shliach is an integral part of the actual divorce - because the divorce is primarily affected by the receiving of the get by the woman. A shliach l'holacha and shliach l'havaah on the other hand are only involved in the din of v'nasan b'yadah. This din is not the actual divorce but just one of the prerequisite dinim involved in the divorce. Thus, these shluchim do not need to be appointed with eidim.

Lifnei Iveir - Bad Advice or Causing an Aveirah?

The gemara in several places says that if one enables another to do an aveirah it is considered lifnei iveir lo siten michshol. For example, in Pesachim 22a it says that if one hands a cup of wine to a nazir that is considered lifnei iveir. The question is what happens if I assist someone in doing an aveirah midrabbanan. Is it possible that even though I aided in a drabbanan that I am guilty of a d'orayssa? This is actually a dispute amongst rishonim [see Tosafos, Avodah Zarah 22a, d"h tepuk ; Minchas Chinuch 231:3 (in the hashmatos); and Sdei Chemed 9 : 36 (p .6)]. Some argue that, indeed, the aider cannot be worse off than the one he aided.

However, others argue that even if the aveirah is d'rabbanan - still the lifnei iveir is d'orayssa. How can this be?

An interesting approach I saw* is that it depends what the issur of lifnei iveir is. If you say the that main nekudah of lifnei iveir is not to cause someone to sin - so of course your sin cannot be worse than the sin you caused. However, if the issur of lifnei iveir is simply to not to give someone bad advice. An issur d'rabbanan is also bad advice and your aveirah can very well be a d'orayssa.

*I saw this explanation in the Journal of Halacha and Contemporary Society Volume 19 - see the article on "Enabling a Jew to Sin" by Rabbis Michael Broyde and David Hertzberg in footnote 14.

Not Testifying on a Minor / Eidus L'Kiyum HaDavar

The Rambam in Hilchos Gerushin 6:9 says that a ketanah cannot make a shliach l'kabbalah to receive her get because appointing a shliach l'kabbalah needs witnesses and "we don't testify on a katan". The obvious question is why not give a simpler reason - a katan can never appoint a shliach because he/she has no daas?

R' Chaim on the Rambam answers that even though a ketanah can't appoint a shliach, she can have a shliach through zachin l'adam shelo b'fanav (assuming a scenario that the divorce was a zechus). Therefore, the Rambam said that even with zachin she cannot have a shliach l'kabbalah because in order to appoint a shliach l'kabbalah there must be eidim present and "we don't testify on a katan".

What does it mean that one needs eidim to appoint a shliach l'kabbalah. R' Chaim further explains that there are two types of eidim. First, there are eidim l'birur hadavar. These are eidim that simply tell us what happened. For example, they may inform us that someone was mechalel shabbos or stole.

There is another type of eidus, though, called eidus l'kiyum hadavar. For example, by a marriage or divorce eidim are needed at the event to make it a legal marriage or divorce. They are not only telling us what happened, they are part of what allows it to happen. By a shliach l'kabbalah there is a requirement of eidus l'kiyum hadavar, whereas there is no such requirement by a shliach l'holacha (the shliach who deliver the get or kiddushin on behalf of the husband).

In Hilchos Yibum V'Chalitzah 4:16 Rav Chaim further explains the idea of needing eidus l'kiyum hadavar. He explains that for some "halachic events" all that is required to create the challos is the maaseh. [For example, by shechitah you just need to do the maaseh shechitah and the animal is shechted.] Other times the challos is created by the daas of the person doing the maaseh. [For example by divorce the husband is really using his daas to divorce the wife - it isn't just purely a maaseh.]

Sometimes the line is blurred in this. For example, by chalitzah Rav Chaim says that the challos is really affected purely by the maaseh. However, part of the maaseh chalitzah is kavanah. This is not the same as saying that daas creates the challos. The difference is that by chalitzah if a katan does a chalitzah with a gadol instructing him what kavanah to have - it works. This is true even though a katan has no daas. The idea is that the kavanah is just a part of the maaseh chalitzah - but the maaseh creates the challos - not the daas.

Therefore, Rav Chaim explains that by gerushin and kiddushin where the daas baalim creates the challos - there is a rule that eidim must be present also for the challos. The requirement for eidim is directly connected to the requirement of daas. This is specifically true by dvarim shebervah because of the rule of ein davar shebervah pachos mishnayim. By other areas of daas we don't necessarily require eidus l'kiyum hadavar - for example by appointing a stam shliach.

Apparently by appointing a shliach l'kabbalah there is an involvement of daas that is considered to be davar shebervah. However, by a shliach l'holacha it's just a regular shliach in kol hatorah kulah and there is no need for eidus l'kiyum hadavar.

Sending Away the Mother Bird

There is an interesting machlokes acharonim regarding the mitzvah of Shiluach haKan. If one happens upon a bird's nest and does not need the eggs - must he send away the mother bird anyway?

The Kollel Iyun HaDaf discusses this issue (link - lightly edited for clarity purposes):

The Pischei Teshuva (YD 292:1) cites the Chavos Yair (#67) who concludes that one is obligated to send away the mother bird whenever possible. He proves this from the Gemara here [Chullin 139b], which he understands to be saying that one is not obligated to go searching for a bird's nest in order to fulfill the Mitzvah, but one is obligated to perform the Mitzvah when he chances upon a bird's nest, even if he does not need the eggs. (The Chavos Ya'ir cites proof for this ruling from the words of the Zohar; see Insights to Chulin 138:5.)

This is also the view of the Maharal (Tiferes Yisrael, end of chapter 61), Maharsham (1:209), Birkei Yosef (YD 292:8), and Aruch HaShulchan (YD 292:1-2).

This obligation applies even to a person who has absolutely no interest in owning the contents of the nest, and even if stopping to fulfill the Mitzvah will cause him to suffer a monetary loss, as the Chasam Sofer (OC #100) and Netziv (in Meromei Sadeh here) explain this view. The reason for this is that since the performance of this Mitzvah hastens the Ge'ulah (as described in Insights to Chulin 138:4-5), one is not allowed to squander such an opportunity, and thus it is a Halachic requirement to fulfill the Mitzvah. In addition, a person who sees a nest and does not perform the Mitzvah is punished in a time of Divine anger (Pischei Teshuvah loc. cit.).
It is interesting to note that the Arizal (quoted by Rav Chaim Vital in his introduction to Sha'ar ha'Mitzvos; Birkei Yosef, Gilyon Shulchan Aruch YD 292:6, and Aruch ha'Shulchan YD 292:1) writes that according to Kabbalah, one must make every effort to perform Shilu'ach ha'Ken. He adds that one who does not perform the Mitzvah of Shilu'ach ha'Ken will return to this world as a Gilgul.)

However, the Chacham Tzvi (#83) and Chasam Sofer (OC #100) rule that when one has no need for the offspring, he is not obligated to send away the mother bird. The Chasam Sofer adds that if the purpose of the Mitzvah is to inculcate in us the trait of compassion (see Insights to Chulin 138:4), then it is clear that we are not obligated to send away the mother bird when we have no need for the offspring, because doing so causes distress to the bird for no reason.

This is also the opinion of many Rishonim, including Tosafos (140b, DH Shnei), the Rambam(Hilchos Shechitah 13:5), Ran, Meiri (139b), and Rabbeinu Bachya (end of Devarim 22:7).
This view agrees that it is meritorious and commendable to pursue and perform the mitzvah, but it is not mandatory to do so and one is not punished for not doing so. In addition, all opinions agree that the Mitzvah is fulfilled l'Chatchilah even when one desires the contents of the nest exclusively so that he can send away the mother and perform the Mitzvah, and he will not use the contents afterwards.

Most Acharonim rule that there is no obligation to send away the mother bird when one chances upon a nest and has no need for the eggs. This is the ruling of the Chasam Sofer (loc. cit), Avnei Nezer (OC #481), Chazon Ish (YD 175:2), Chazon Yechezkel, Minchas Chinuch (#544), and the Chafetz Chaim (in Sefer HaMitzvos HaKatzer, Mitzvos Aseh #74). Most contemporary Poskim also rule this way, including Rav Shlomo Zalman Auerbach zt'l (in Minchas Shlomo 2:5:4), and Rav Yosef Shalom Elyashiv shlit'a and Rav Chaim Kanievsky shlit'a (in personal conversations with Rabbi Naftali Weinberger). This common practice today. (Rabbi Weinberger quotes Rav Yakov Yisrael Fisher zt'l, however, who was of the opinion that one is obligated to send away the mother bird when he chances upon a nest, even though he does not need the eggs).

Thus, although many acharonim say there is no obligation to send away the mother bird if you don't want the eggs, a significant number argue and say that the obligation is there in any case - as long as you happen upon a bird's nest.