Tevillah Bizmana Mitzvah

Rambam in Shevisas Asor 3:2 -

וְכָל חַיָּבֵי טְבִילוֹת טוֹבְלִין כְּדַרְכָּן, בֵּין בְּתִשְׁעָה בְּאָב בֵּין בְּיוֹם הַכִּפּוּרִים

According to the simple explanation of this halacha the Rambam is paskening here that tevillah bizmana mitzvah. This would mean that someone who needs to go to the mikvah (baal keri, zav, etc.) it is a mitzvah to go at the first opportunity. Thus, if that falls out on Yom Kippur or Tisha B'Av, even though there is usually a prohibition on washing one's body, the mitzvah is docheh the issur and thus the Rambam says one can go to the mikvah.

However, this Rambam stands against another Rambam which seems to hold that tevillah bizmana lav mitzvah:

Yesodai HaTorah 6:6 -

נִזְדַּמְּנָה לוֹ טְבִילָה שֶׁלְּמִצְוָה--כּוֹרֵךְ עָלָיו גֳּמִי, וְטוֹבֵל; וְאִם לֹא מָצָא גֳּמִי, מְסַבֵּב אַחֲרָיו. וְלֹא יְהַדַּק, כְּדֵי שֶׁלֹּא יָחֹץ--שֶׁלֹּא אָמְרוּ לִכְרֹךְ עָלָיו, אֵלָא מִפְּנֵי שֶׁאָסוּר לַעֲמֹד בִּפְנֵי הַשֵּׁם עָרֹם

Here the Rambam seems to hold that if the Shem Hashem is written on one's body he should even push off the tevillah in order to cover it up before he does the tevillah.

The source for both these Rambam's in the gemara in Shabbos 121a. If you look at Tosafos there (d"h Hachi) Tosafos points out a girsa issue. Tosafos prefer the girsa that even if one holds tevillah bizmana is not a mitzvah, still it is ok to be toveil on Yom Kippur or Tisha B'Av for people chayav tevillah. This would seem to be the position of the Rambam as well. Even though tevillah bizmana lav mitzvah, still one can be toveil on Yom Kippur or Tisha B'Av. The question is, why?
(See the Lechem Mishna in Yesodei HaTorah that points to this Tosafos as a possible resolution for the Rambam.)

If you look at the Rambam in Shevisas Asor in more detail it seems the Rambam himself answers the question:

ב מִי שֶׁהָיָה מְלֻכְלָךְ בְּצוֹאָה אוֹ טִיט--רוֹחֵץ מְקוֹם הַטִּנּוֹפוֹת כְּדַרְכּוֹ, וְאֵינוּ חוֹשֵׁשׁ. וּמְדִיחָה אִשָּׁה יָדָהּ אַחַת בַּמַּיִם, וְנוֹתֶנֶת פַּת לִבְנָהּ. וְהַחוֹלֶה רוֹחֵץ כְּדַרְכּוֹ, אַף עַל פִּי שְׁאֵינוּ מְסֻכָּן. וְכָל חַיָּבֵי טְבִילוֹת טוֹבְלִין כְּדַרְכָּן, בֵּין בְּתִשְׁעָה בְּאָב בֵּין בְּיוֹם הַכִּפּוּרִים

The Rambam here bunches the halacha of chayvei tevillos with someone who needs to wash dirt off his skin or one who needs to bathe because he is sick. All of these cases of rechitza are muttar. Why? Apparently it is because only rechitza of taanug, only pleasurable bathing, was part of the issur. The Rambam is saying that rechitza of chayvei tevillos was never included in the issur of rechitza in the first place.

Thus, we have two ways of learning the heter for chayvei tevillos. One way is to assume that the mitzvah of tevillah is docheh the issur rechitza. This assumes tevillah bizmana mitzvah. The other approach, that of the Rambam, assumes that rechitza of chayvei tevillos is a different type of rechitza. This type of rechitza never was assured on Yom Kippur and Tisha B'Av in the first place.

Believing in the Prophets

Rambam in Yesodei HaTorah Perek 8:
ו נִמְצֵאתָ אוֹמֵר, שֶׁכָּל נָבִיא שֶׁיַּעֲמֹד אַחַר מֹשֶׁה רַבֵּנוּ, אֵין אָנוּ מַאֲמִינִין בּוֹ מִפְּנֵי הָאוֹת לְבַדּוֹ, כְּדֵי שֶׁנֹּאמַר אִם יַעֲשֶׂה אוֹת נִשְׁמַע לוֹ לְכָל מַה שֶׁיֹּאמַר; אֵלָא מִפְּנֵי הַמִּצְוָה שֶׁצִּוָּנוּ מֹשֶׁה בַּתּוֹרָה, וְאָמַר אִם נָתַן אוֹת, "אֵלָיו, תִּשְׁמָעוּן" (דברים יח,טו): כְּמוֹ שֶׁצִּוָּנוּ לַחְתֹּךְ הַדָּבָר עַל פִּי שְׁנֵי עֵדִים, וְאַף עַל פִּי שְׁאֵין אָנוּ יוֹדְעִין אִם אֱמֶת הֵעִידוּ אִם שֶׁקֶר; כָּךְ מִצְוָה לִשְׁמֹעַ מִזֶּה הַנָּבִיא, אִם הָאוֹת אֱמֶת אוֹ בְּכִשּׁוּף וְלָאט

The halacha is that if a person comes along and says he is a navi, we don't believe him immediately. Rather, we must test the person. He has to make a prediction that comes true that establishes the he is in fact a navi. Once a navi establishes that he is a true navi by this method, we believe that he is a navi and we must listen to his words. There are more details to these halachos which can be found in the 7th through 10th chapters of Hilchos Yesodei HaTorah in the Rambam.

The Rambam there establishes that our belief as a nation in Moshe Rabbeinu's nevuah did not come about through the miracles that Moshe performed. For, as the Rambam says, anyone can fool someone with magic. Rather, the nation believed in Moshe Rabbeinu because they actually witnessed Hashem speaking to Moshe on Har Sinai. Miracles alone according to the Rambam cannot establish full emunah.

If so, why do we believe in a navi just because he performs a "miraculous" prediction. Perhaps he is fooling us with magic?

To this the Rambam answers here - yes perhaps it is so. Still, we believe the navi because that is the halacha. Just like the halacha is we believe two eidim even though they may be lying. Nevertheless, this is the standard the halacha established to believing eidim. So too, the standard the halacha has for believing a navi is based on performance of a miracle, despite the fact that he may be fooling us.

For this reason, a navi can never come along and argue with Toras Moshe Rabbeinu. The idea being that the only reason we believe the navi is because Toras Moshe says we must. Otherwise, the miracle alone wouldn't establish independent belief in the navi. So, obviously, if we are only believing the navi because it says to believe him in the torah, so certainly his word cannot overturn the word of the Torah.

[Note: the halacha is different if the navi is only overturning the halacha b'horaas shaah like Eliyahu at Har HaCarmel. See the Rambam inside for details.]

Akeidas Yitzchak - The Rambam's Unique Pshat

I found a Rambam in Moreh Nevuchim that gives a completely opposite pshat in Akeidas Yitzchak from the pshat you hear in almost every mussar shmooze on the akeidah. Absolutely mind boggling...

The famous question that is asked is, what is the big deal about the akeidah? If God told you to do something directly wouldn't you do it? Wouldn't you do anything for Hashem?

The famous answer that is given is that in fact Avraham wasn't a Navi at the level of Moshe Rabbeinu. Avraham's nevuah was at the level of Aspaklaria She'einah Meirah. He saw the word of Hashem, but not perfectly clearly. Therefore, the greatness of Avraham was that he didn't interpret the prophecy in a way that suited him better. He could have easily interpreted the nevuah in a more convenient fashion. But he didn't. Instead he went with the simple explanation, and proceeded with the akeidah.

If you want to see this pshat inside I found it in the Avi Ezri on Hilchos Yesodei HaTorah 7:6 (last paragraph). But it's not only in the Avi Ezri. I have heard this pshat numerous times. The basic idea being that the lesson of the akeidah is not to ask questions, not to find excuses, but just to follow the simple word of Hashem.

Before we get to the Rambam, there is a glaring difficulty with this pshat. The halacha most certainly is safek nefashos l'hakeil. If Avraham wasn't 100% sure what Hashem was telling him, wouldn't the halacha dictate to be on the safe side and not kill his son?

Here now is the quote from Moreh Nevuchim (3:24):

The second purpose [of the akeidah] is to show how the prophets believed in the truth of that which came to them from God by way of inspiration. We shall not think that what the prophets heard or saw in allegorical figures may at times have included incorrect or doubtful elements, since the Divine communication was made to them, as we have shown, in a dream or a vision and through the imaginative faculty. Scripture tells us that whatever the Prophet perceives in a prophetic vision, he considers as true and correct and not open to any doubt; it is in his eyes like all other things perceived by the senses or by the intellect. This is proved by the consent of Abraham to slay "his only son whom he loved," as he was commanded, although the commandment was received in a dream or a vision. If the Prophets had any doubt or suspicion as regards the truth of what they saw in a prophetic dream or perceived in a prophetic vision, they would not have consented to do what was unnatural, and Abraham would not have found in his soul strength enough to perform that act, if he had any doubt [as regards the truth of the commandment]. It was just the right thing that this lesson derived from the akeida should be taught through Abraham and a man like Isaac. For Abraham was the first to teach the Unity of God, to establish the faith [in Him] etc.

Amazing. The Rambam here says that the lesson of the akeidah is specifically to teach us not to think that the prophets had any doubts regarding their nevuah, even if they did see in dreams or visions. The whole point is that since Avraham was even willing to kill his son based on this prophecy it shows that the prophecy was 100% clear to Avraham with no doubts as to its interpretation. Had there been any doubt, the Rambam even says that Avraham surely would not have followed through! This is the exact opposite pshat of the standard pshat I have heard numerous times in countless shmuessim and of the pshat given by the Avi Ezri. Not only is it the opposite pshat, it's actually the lesson being conveyed by the akeidah not to think this way!

Note one other point. The Rambam (a little earlier in the same piece) says there is another lesson to the Akeidah. The lesson being just how far one must go in the fear of Hashem. He must be willing even to give up his child. The Rambam says this lesson despite the fact that the Rambam says that the nevuah was 100% clear to Avraham. In other words, the Rambam isn't bothered at all by the question of the Avi Ezri, what is the big deal about the akeidah if Hashem said so? No, it is a big deal to the Rambam even if Avraham heard it directly from Hashem! It's still shows Avraham's greatness that he was willing to follow through with the akeidah.

Kedushas Azkaros

אֲבָל מִין יִשְׂרָאֵל שֶׁכָּתַב סֵפֶר תּוֹרָה, שׂוֹרְפִין אוֹתוֹ עִם הָאַזְכָּרוֹת שֶׁבּוֹ, מִפְּנֵי שְׁאֵינוּ מַאֲמִין בִּקְדֻשַּׁת הַשֵּׁם, וְלֹא כְתָבוֹ אֵלָא וְהוּא מַעֲלֶה בְּדַעְתּוֹ שֶׁזֶּה כִּשְׁאָר הַדְּבָרִים; וְהוֹאִיל וְדַעְתּוֹ כֵּן, לֹא נִתְקַדַּשׁ הַשֵּׁם, וּמִצְוָה לְשָׂרְפוֹ, כְּדֵי שֶׁלֹּא לְהַנִּיחַ שֵׁם לַמִּינִים וְלֹא לְמַעֲשֵׂיהֶם אֲבָל גּוֹי שֶׁכָּתַב אֶת הַשֵּׁם, גּוֹנְזִין אוֹתוֹ; וְכֵן כִּתְבֵי הַקֹּדֶשׁ שֶׁבָּלוּ אוֹ שֶׁכְּתָבָן גּוֹי, יִגָּנְזוּ

Here the Rambam seems to state that theoretically if a non-Jew writes the name of Hashem with the intention that it is, in fact, Hashem's name - there is kedusha to that shem. It's only when the writing is done without the proper intention that there is no kedusha and that it must be burnt.


In his chiddushim on the Rambam in Hilchos Tefillin, Rav Chaim Soloveitchik points out that in this respect the lishma needed by ST"aM (Sefer Torah, Tefillin, and Mezuzos) is different than the lishma needed to give a shem Hashem kedusha (rendering it assur to erase that shem).


By ST"aM there is an additional din of lishma that is needed to make the Sefer Torah etc. kosher. A non-Jew is incapable halachically of creating this lishma, and is therefore unable to create a kosher sefer torah etc. However, there is no din of "lishma" per se that is needed by creating a Shem Hashem. Rather, the name just needs to be written "b'toras shem". It needs to be written with the intention that it is the name of Hashem, as opposed to some other word.

Rav Chaim also makes an additional interesting distinction. He explains that the standards for being a Shem Hashem as far as the issur mechica may be different than the standards needed for a Shem Hashem in a Sefer Torah. As far as issur mechika it could be that all you need is "b'toras shem". However, for a sefer torah the azkaros may need additional kavanah lishma as well.

Shem HaMeforash

ב וְשִׁבְעָה שֵׁמוֹת הֶן--הַשֵּׁם הַנִּכְתָּב יוֹד הֵא וָאו הֵא וְהוּא הַשֵּׁם הַמְּפֹרָשׁ, אוֹ הַנִּכְתָּב אֶלֶף דַּאל נוּן יוֹד, וְאֵל, וֶאֱלוֹהַּ, וֵאלֹהִים, וְאֶהְיֶה, וְשַׁדַּי, וּצְבָאוֹת. כָּל הַמּוֹחֵק אַפִלּוּ אוֹת אַחַת מִשִּׁבְעָה שֵׁמוֹת אֵלּוּ, לוֹקֶה

Here the Rambam states pretty clearly his opinion that the shem hameforash is the tetragrammaton - the shem yud key vav key. He reiterates this in Moreh Nevuchim 1:61,62,63. There he also cites the gemara in Kiddushin 71a that states that there also exists a twelve letter name of Hashem as well as a 42 letter name. The Rambam there says that these longer names were probably more like phrases that described certain attributes of Hashem. Only the shem hameforash - the four letter yud key vuv key - is a name that can be said to denote more than mere attributes of Hashem. In some way that name even describes Hashem's essence. The Rambam says that we don't know one hundred percent what that name means, but it probably means something along the lines of "absolute existence".

There is a gemara in Sanhedrin 60a that discusses the laws of Megadef. In that gemara there is one part where the gemara says that even when one uses the four letter name of Hashem it is megadef. To which the gemara asks, what is the chiddush? The gemara answers that you may have thought you need the "shem rabba" the great name. So, the chiddush is even the four letter name suffices.

Rashi there says that the shem rabba refers to the 42 letter name of Hashem which he calls the shem hameforash. Rashi seems to learn the gemara in Kiddushin 71a that the 42 letter name mentioned there was the shem hameforash - against the shittas HaRambam. So the question is how does the Rambam learn the gemara in Sanhedrin? What is the Shem Rabba according to the Rambam.

The Rambam in Hilchos Avodah Zarah 2:7 provides an answer:

יב אֵין הַמְּגַדֵּף חַיָּב סְקֵלָה, עַד שֶׁיְּפָרַשׁ אֶת הַשֵּׁם הַמְּיֻחָד שֶׁלְּאַרְבַּע אוֹתִיּוֹת שְׁהוּא אֶלֶף דֶּלֶת נוּן יוֹד, וִיבָרַךְ אוֹתוֹ בְּשֵׁם מִן הַשֵּׁמוֹת שְׁאֵינָן נִמְחָקִין--שֶׁנֶּאֱמָר "וְנֹקֵב שֵׁם-ה' מוֹת יוּמָת" (ויקרא כד,טז), עַל הַשֵּׁם הַמְּיֻחָד חַיָּב סְקֵלָה; וְעַל שְׁאָר הַכִּנּוּיִין, בְּאַזְהָרָה. וְיֵשׁ מִי שֶׁמְּפָרֵשׁ שְׁאֵינוּ חַיָּב אֵלָא עַל שֵׁם יוֹד הֵא וָאו הֵא; וַאֲנִי אוֹמֵר שֶׁעַל שְׁנֵיהֶם, הוּא נִסְקָל

The Rambam here states his opinion that by megadef one is chayav for both four letter names of Hashem, whether it be alef daled or whether it be yud key. Where does he get this halacha?

Apparently, he learns the gemara in Sanhedrin that the four letter name there was the name of Alef Daled. The gemara said that he chiddush is that you don't require the "shem rabba" - the yud key shem hameforash to be chayav - but rather either four letter name of Hashem suffices. Thus, the Rambam's chiddush that even the shem alef daled is chayav by megadef is a direct consequence of his shittah that the shem hameforash is yud key vav key.

[As a final note - in case you are wondering what happened to the well known 72 letter name of Hashem - see Breishis Rabbah that quotes R' Avina that Hashem redeems His children with his 72 letter name.]

*See the Tzafnas Paneach in Hilchos Avodah Zarah that seems to be indicating this pshat in the Rambam.

The Middah of Avraham Avinu

If you ask most people what is the middah of Avraham Avinu without a doubt the majority would answer the middah of chesed. This is derived primarily from the story of hachnasas orchim in the beginning of Parshas VaYera and other midrashic sources that surround this episode. It is also derived from the pasuk in Micah 7:20 Titein emes l'yaakov chesed l'avrohom. The idea is that the midah of Chesed belongs to Avraham, Gevurah to Yitzchak, and Emes to Yaakov. It pays to note, however, that this is not the simple explanation of the passuk. The passuk is actually referring to the fact that Hashem should keep his promise to the Avos and return us to the land of Israel. As the Radak there explains, chesed refers to the fact that Hashem promised us the land as an act of kindness. Emes refers the the fact that he will make good on the promise to the fathers and deliver to the sons. Nevertheless, the Ramban (see Bereishis 17:22 and 31:42) offers the Kabbalistic interperetation that these middos belong to the avos - chesed being Avraham's middah. This is the source of the many Divrei Torah surrounding Avraham Avinu and the middah of Chesed.

However, if one were to ask the Rambam, what would he say is the middah of Avraham? The Rambam spells out the answer directly in two places. In Mitzvas Aseh 3, in the mitzvah of Ahavas Hashem, the Rambam says that Avraham Avinu was the paradigm of Ahavas Hashem. He bases this on two sources. First, the Navi says in Yeshaya (also the Haftorah of Parshas Lech Lecha) Avraham Ohavi. The Rambam takes this as a proof that Avraham Avinu had reached the high level of Ahavas Hashem. The Rambam then goes on to say a mashal. When one person loves another person they will do all in their power to get others to love that person. So too, Avraham Avinu tried to convince all those around him to love Hashem. As the pasuk says V'es hanefesh asher asu b'charan - that Avraham Avinu turned thousands of hearts and mind away from Avodah Zarah and towards the service of the Creator.

The Rambam then repeats this yesod in Hilchos Teshuva at the beginning of Perek 10 where he says that the ideal service of Hashem is Ahavas Hashem - the level of Avraham Avinu.

Thus, it seems clear that if one were to ask the Rambam what is the middah of Avraham Avinu, the Rambam would respond that Avraham Avinu had reached the lofty level of Ahavas Hashem.

The Mitzvah of Anochi

The first mitzvah in Sefer HaMitzvos according to the Rambam is the mitzvah of Anochi Hashem Elokecha. In the first few halachos of Mishneh Torah (Hilchos Yesodei HaTorah 1:1-6) the Rambam explains in detail what the mitzvah of Anochi means. The Rambam says that the mitzvah of Anochi basically is to know that there is a God that is in control of the whole universe. First, we should note that not all rishonim hold that Anochi is a mitzvah at all. In Sefer Hamitzvos the Ramban defends the opinion of the BeHag that Anochi is in fact not a mitzvah amongst the 613.

However, the Rambam has a solid proof that Anochi is one of the 613 mitzvos. The gemara in Makkos 24a says that there are 613 mitzvos. This idea is learnt from the pasuk of Torah tzivah lanu Moshe. Torah in gematria is 611. 611 of the 613 mitzvos were commanded from Moshe. Two were commanded from Hashem Himself -mipi hagevurah. Those two were Anochi and Lo Yihyeh. Thus, it is clear from the gemara that anochi is one of the 613.

Now, let us return to the Rambam's definition of Anochi. Many point out that when the Rambam talks about the mitzvah of Anochi in Mishnah Torah he uses the word leida - to know. A person has to know that there is a God. He does not say l'haamin - to believe. This is despite the fact that the translators translate Sefer HaMitzvos and Moreh Nevuchim with the word l'haamin. Is this a contradiction in Rambam? I don't know. However, I believe that the Rambam intentionally used the word Leida based on a passage in Moreh Nevuchim.

In Moreh Nevuchim the Rambam offers a novel interperetion of the gemara in Makkos. The Rambam says that when it says in the gemara that Anochi and Lo Yihyeh were heard by klal yisrael mipi hagevurah it doesn't mean they heard Hashem say those words. Rather, it means that those two mitzvos - the existence and unity of God - are logical. They do not require faith in a prophet such as Moshe Rabbeinu. Thus, all of klal yisrael had the same understanding of those two mitzvos as Moshe Rabbeinu. As the Rambam explains, knowing something through logic holds the same level of knowledge as knowing something through nevuah. Thus, it is specifically anochi and lo yihyeh that are known as opposed to believed. All other mitzvos are done because we believe in the prophecy of Moshe Rabbeinu. But, these two mitzvos are known independantly of that.

From this it seems clear that the Rambam intentionally uses the word leidah. The Ran in Derashos (drush 9) argues with the Rambam. He says mipi hagevurah literally means they heard those commandments from Hashem. He also disputes what the mitzvah of anochi is. He says that anochi isn't merely that there is a God. Rather, the mitzvah of anochi is to recognize that the God who took us out of Egypt gave us the Torah. The mitzvah really is that there is Torah min Hashamayim. As the Ran explains, knowing that there is a God is logical. However, how do we know He cares about are actions? How do we know about His hashgacha on the world? That requires Mipi Hagevurah - actually hearing it from Hashem Himself.

Thus, the Ran and the Rambam dispute the basic mitzvah of Anochi as well as the gemara in Makkos. In the Rambam Mipi HaGevurah is logic and the mitzvah of Anochi is simply knowing that God exists. In the Ran, Mipi HaGevurah means from the mouth of the Almighty - we actually "heard" Hashem say these dibros (whatever that means). And, the mitzvah of Anochi is about more than the mere existence of God - it is about the concept of Torah min Hashamayim - an idea that truly requires "mipi hagevurah".

It is interesting that the Rambam does use the terminology of emunah later in Hilchos Yesodei Hatorah when he discusses why klal yisrael "believed" in the nevuah of Moshe Rabbeinu. It seems clear that the Rambam is setting up two categories of mitzvos. Anochi and Lo Yihyeh are the foundations of the Torah and are known logically and independently of nevuah. All the other mitzvos of the 613 are known because we believe in the nevuah of Moshe Rabbeinu, which the Rambam discusses more in depth later in Mishnah Torah.

Placebo Effect in Halacha

The last post got me thinking about the how the Placebo Effect works with halacha. In the last post we discussed what type of medicinal treatments are permitted according to halacha, and which are prohibited due to darchei haemori. We concluded that post as follows:

The Rashba seems to be saying that in order for a medicine to be considered rational we don't have to know why it works. We only need to have a rational basis for using the medicine. A rational basis can exist due to logic (it makes logical sense that this medicine should work even though it hasn't yet been tested) or due to observation (we have no idea why it works we just have observed that it does). What is forbidden is to use a medicine that we have no rational reason to believe works. If it makes no sense why it should work, nor has it been observed to work then it is forbidden.

It's the observation line that I want to focus on. As I wrote in the post, there are two reasons why a particular medicine or medical treatment could be considered rational. One is that it is logical that the treatment should work. Even if it is a totally new treatment that hasn't been tested it can still be considered a rational treatment if their is some logical reason why doctors think it will work.

The second reason that a treatment could be considered rational is because we have observed that it works - even though we don't know why or how it works. What's interesting to consider is that ever since the early 20th century medical science has been working under the premise that there exists a placebo effect. Meaning that a completely ineffective therapy can still work, simply because the patient believes that it will work. The question therefore is - what do we do with the rishonim who permitted certain medical treatments because those treatments were observed to be effective. Was that observation a "real" observation or was it just the placebo effect working? And in general, must we take the placebo effect into account as far as halacha? Do we define observation l'halacha the same way scientists define it? If we do, then that would mean that one could never take any medicine or medical treatment that hadn't been tested in a placebo-controlled study in a double-blind fashion (unless there was a logical reason why the medicine should work).

The placebo effect does make it into halacha in another scenario. Imagine a patient who believes that some non-kosher medicine will heal him. Now, the doctors actually don't believe it. It's totally untested and illogical. The question becomes is it considered a valid medical treatement or not? If it is, then we might be able to use it even though it isn't kosher (assuming other necessary conditions are met). If not, we surely cannot give someone non-kosher for no reason.

How can it possibly be considered a real medical need? The answer is that since the patient believes it will work it might just help him. Basically, it's the placebo effect at work. In fact there are poskim who have permitted just this case in certain specific situations for exactly this reason. The psychological benefit of taking the medicine is enough to declare it "medical" and permit it. Because the patient truly believes that this might work it becomes a possibly effective treatment and may become muttar even if it isn't kosher.

This then brings us back to our question regarding the times of the rishonim. Even if there were no placebo-controlled studies, the fact is that the people fully believed that these treatments worked. They had even "observed" them working. Therefore, the treatments, in a sense, did work precisely because people believed it! Accordingly, this may be enough halachically to be considered a real medicine and it becomes muttar. Just some food for thought.

* No post on Talking in Learning is intended halacha l'maaseh. Always consult your halachic authority for final rulings.

Segulos and Darchei HaEmori

The Tosefta in Shabbos (Chapters 7 & 8) lists various practices which are prohibited due to the fact that they are darchei haemori. For example, putting thorns in a window to protect a pregnant woman or tying an iron to one's bed. These things all have one basic common feature. They are irrational - meaning they are not scientifically or observably proven remedies. (We will come back to this to try to better define what is considered "irrational".)However, the gemara in Shabbos 67a has a seemingly different rule regarding medicine. Abaye and Rava say that "anything done for healing isn't darchei haemori". The mishna applies this rule to several seemingly irrational medical treatments - tooth of a fox, egg of a grasshopper etc.

How do we reconcile these two sources? Here we will present three rishonim who write on the issue:

Rambam - The Rambam in Moreh Nevuchim 3:37 (see also Rashi in Shabbos there) seems to say that, in fact, when it comes to medicine the rule is the same as any other segulah. If a method of healing is not observable by medical science it is forbidden. He seems to learn that the methods mentioned in the mishna in Shabbos were considered rational healing methods.

Ran - The Ran (Drashos HaRan 12) disputes this approach. He learns that when it comes to healing there are two appropriate methods. There are some healing methods that are physical and there are others that are non-physical. Both are appropriate as long as they effective methods that are shown to work. The only healings that are forbidden are ineffective ones which was the way of the Emori - who used silly useless things to heal.

Rashba - The Rashba (Shu"t 413) writes that the Rambam would agree with this position of the Ran. He compares the non-physical healings of the Ran to a magnet. A magnet has power that cannot be seen - yet of course it works. It is a rational thing to believe that a magnet will draw things to it. So too with non-physical healings. As long as they are established as working, they are perfectly rational and the Rambam would certainly agree that they are permitted.

What seems to be at issue here is really how we define rational. The Rashba seems to be saying that in order for a medicine to be considered rational we don't have to know why it works. We only need to have a rational basis for using the medicine. A rational basis can exist due to logic (it makes logical sense that this medicine should work even though it hasn't yet been tested) or due to observation (we have no idea why it works we just have observed that it does). What is forbidden is to use a medicine that we have no rational reason to believe works. If it makes no sense why it should work, nor has it been observed to work then it is forbidden.

At the end of this discussion it would appear that all three of these rishonim agree that in the mishna in Shabbos there was some rational basis for using those particular methods. Had there been no rational basis it would have been forbidden.

*For a much more in-depth discussion on this issue see RJJ Journal Vol. 54 - Segulot, Superstitions, and Darchei Emori by Rabbi Yitzchok Gutterman.

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.

When Issur and Tumah Collide

The Minchas Chinuch in Mitzah 263 (Din Tumas Kohanim) writes as follows:

And behold I will not refrain from writing what I don't know even though it is possible that it is a davar pashut for one who is a baki in shas and he has good sechel. Still a man like me is not embarrassed to write what is in doubt to me. Behold it is well known in all of shas that safek tumah in Reshus HaYachid is tamei... and safek tumah in reshus harabbim is tahor... and this matter is only by tumah but by issurin there is no nafka minah between reshus hayachid and reshus harabbim... and behold if one is tamei with a safek tumah in reshus hayachik he is forsure tamei... I am in doubt what is his halacha as far as issur for example like over here with a kohen and nazir that if there is a safek tumah in reshus hayachid or even sfek sfeka if he touches it he is forsure tamei... But if they warned him not to become tamei and he transgressed and became tamei does he get malkos? Or do we say that the Torah revealed this only for tumah...

In other words, the Minchas Chinuch is mesupak as to what is the halacha of safek tumah in reshus hayachid when it comes to the issur of coming into contact with tumah. Do we apply the rules of safek tumah or the rules of safek issur?

The Esvan D'Orayssa in Klal 21 deals with a similar issue. He introduces the piece as follows:

Here we will speak on the inyan of niddah to her husband. Is it issur or tumah?

At the end of the piece he quotes an Aderes Eliyahu from the Gra as follows:

And see also the Gra in Sefer Aderes Eliyahu where he says as follows in Parshas Shoftim on the pasuk of Ki Yipalei Davar etc. and here are his words:

That the torah is divided into six parts tahor and tamei, assur and mutar, and chavav and zakai. Bein Dam L'Dam this is Issur and Mutar to make a woman pure for her husband...

The Esvan D'Orayssa finishes with the following words:

And it is clear that dam niddah and zivah that assur a woman to her husband are in the category of issur and not in the category of tumah.

* For more on this topic see Siman 2 of Sefer Eretz HaTzvi by Rabbi Hershel Schachter.

How Many People are Needed for a Minyan?

In this previous post we discussed the issue of Pores Al Shma. We mentioned that according to Rashi the mishna is basically saying that for kaddish and kedusha you need 10 people. The gemara there in Megillah 23b explains that the pshat in the mishna is that all things classified as "davar shebikdusha" need 10 people for a minyan.

Interestingly there is a Meseches Sofrim (10:7) which at first glance seems to argue with this gemara in Megillah. Here are some excerpts from that Meseches Sofrim:

And one does not say Kaddish and Borchu with less than 10... Our Rabbis in the west say... with seven... [as it says] bifroa peraos etc... and some say even six... And in a place where there are nine or 10 that already heard either Borchu or Kaddish and after tefillah one of these gets up and says Borchu or Kaddish and they answer after him he is yotzei. And the Chachamim were already mesaken for the Chazanim that after geulah they say Yehi Shem Hashem Mevorach... and after this Borchu in order to be motzee those that haven't heard because R' Yochanan said "Halvei that a person should daven all day". And the people of the west and east have a custom to say it after Oseh Shalom in the three tefillos of shemoneh esrai as a gezairah fro those who have just entered and a gezairah for those leaving and even after krias hatorah...

The Rishonim in Megillah mention this Meseches Sofrim. Some say that the Rabbis of the West argued with our gemara and actually required less than 10 for a minyan. Others say that the Meseches Sofrim doesn't mean to say that you need 6 or 7 for a minyan, but only means that you need 6 or 7 who have not yet davened to be a part of the minyan.

In Iggros Moshe O.C. 1:28 Rav Moshe mentions using the concept of Rubo K'kulo when it comes to minyanim. He says that obviously the rule of Rubo K'kulo does not apply to shiurim. So, if you need a minyan of 10 people you can't say that with 6 you have a minyan because of rubo k'kulo. However, he says that if 6 of the 10 have not yet davened you can apply rubo k'kulo and say that you have an "entire" minyan of people who are chayav in davening.

We find the idea of rubo k'kulo applied here in the words of the Ran on Daf 3a in Dapei Harif of Megillah as well. The issue being dealt with there is that we know R' Assi holds that 10 are needed for krias megillah. So the rishonim are bothered how come in this mishna of pores al shma we don't list krias megillah as something that needs 10 people (according to R' Assi)? It is especially difficult to say that this was left out since this list is in a Mishna that is in Meseches Megillah. Certainly Krias Megillah itself should make the list! It is difficult to say that the mishna is lav davka. The Ran there explains (following the shitah of the Milchamos there; see also Baal HaMaor) that the Mishna is only listing things that are Chovas Tzibbur. This means that if you have a tzibbur who are all still chayav to hear or recite one of the things in the mishna the chiyuv is chas on the tzibbur as a whole. When it comes to krias megillah it is not a chovas tzibbur. Rather, it is a chovas yachid (every yachid needs to hear the megillah) that should be done in front of 10 people due to pirsumei nissa. This is why Krias Megillah is not in the Mishna.

It comes out that according to the Ramban krias hatorah (which is also in the Mishna in Megillah) is a chovas yachid. This would mean that if one does not go to minyan on a Monday or Thursday the chiyuv to hear krias hatorah would never be chal on him. I heard, however, that Rav Chaim Soloveitchik was machmir for the opinion that krias hatorah is a chovas yachid. Therefore, he was very makpid to hear leining on Mondays and Thursdays - even if it meant jumping off trains (I don't know if they were moving).

Pores Al Shma

The Mishna in Megillah on 23b discusses different things that require 10 people. The first of the list is called "pores al shma". There is a major machlokes rishonim as to what exactly this means. The Ran (in the dapei harif) has a there has a good summary of the different strains of thought in rishonim. Basically, according to Rashi's camp the issue is regarding someone who already davened b'yichidus and now wants to make up the stuff that he missed because he didn't daven b'tzibbur. He joins together with 10 people and they daven in an abridged form to make up Borchu, kaddish, and kedushah.

The Geonim have a different approach entirely. They say that we are referring to how one can be yotzei in birchas krias shma through shomeah k'oneh. The rules of shomeah k'oneh change depending on the tefillah. Most of the time one person can recite a bracha and the listener can be yotzei through shomeah k'oneh. However, sometimes it's not so simple. For example, by bentching the halacha is that in order to do shomeah k'oneh one needs to have three people in a mezuman. The mishna is teaching us that for birchas krias shma one needs ten people to be yotzei through shomeah k'oneh.

In the Chidushei HaRan there in Megillah (not the Ran in Dapei HaRif I quoted above) he says that the kedusha that we recite in the bracha of yotzer ohr in the morning is not a real davar shebikdusha. We are merely saying what the Malachim say to be mekadesh Hashem - but we are not really doing it like we do in the kedusha of chazaras hashatz. In the footnotes there I saw that this is not agreed upon by all rishonim. Some hold that this kedusha is a real davar shebikdusha.

I heard that this was the opinion of R' Chaim Soloveitchik (or at least he was choshesh for this opinion). He may have held that the responsive nature of this tefillah rendered it a davar shebikdusah (see here). He used to stand up when he got to this kedusha - just as we stand up when we recite any davar shebikdusha. [Not everyone has this minhag to stand by davar shebikdusah but we are assuming here that one does stand for davar shebikdusha.]

R' Yosha Ber Soloveitchik also used the logic of davar shebikdusha to explain the different minahagim by a mezuman of 10 people. We explained that previously here as well.

The Rishonim here on the inyan of Pores Al Shma all deal with a difficult Meseches Sofrim. Although our gemara clearly states that davar shebikdusha requires 10 people the Meseches Sofrim seems to disagree. Some explain that the Meseches Sofrim only means to tell you the number of people in the minyan who cannot have davened yet. Others say that the Meseches Sofrim is indeed arguing and requires less than 10 for a davar shebikdusha.

Shinuy HaTeva

יב ואין להוסיף על טריפות אלו, כלל: שכל שיארע לבהמה או לחיה או לעוף חוץ מאלו שמנו חכמי הדורות הראשונים, והסכימו עליהן בתי דיני ישראל--אפשר שתחיה. ואפילו נודע לנו מדרך הרפואה, שאין סופה לחיות. [יג] וכן אלו שמנו ואמרו שהן טריפה--אף על פי שייראה בדרכי הרפואה שבידינו שמקצתן אינן ממיתין, ואפשר שתחיה מהן: אין לך אלא מה שמנו חכמים, שנאמר על פי התורה אשר יורוך

Here the Rambam is paskening that whatever treifos are listed in the Gemara we cannot add nor subtract from them. Even if we find something else that renders an animal physically a treifah we cannot add to the list. We should assume that the animal may be able to live for 12 months. Likewise, if we find that one of the treifos in the list in the gemara no longer renders an animal physically a treifah - it still has the halachic status of a treifah.

Why is this?

In an article in The Journal of Halacha and Contemporary Society (Volume 31 - Shinuy HaTevah) Rabbi Dovid Cohen brings a some opinions from the poskim on this issue. The Chazon Ish (Y.D. 5:3 and E.H. 27:3) says that it is basically like a gezairas hakasuv that only these treifos (that existed at the time of the gemara) should count as treifos l'doros. R' Moshe Feinstein (E.H. 2:3:2) says a similar idea but he adds to it. He asks why does the gemara need to say that the list of treifos are a halacha l'moshe misinai? He answers that it is specifically to tell you that this is the final list.

Based on his reasoning, R' Moshe had an interesting psak regarding the issur of petsua daka. He ruled that a certain procedure that was assured in the gemara (because it made one a petsua daka according to the gemara) is permitted nowadays because nowadays it doesn't render one a petsua daka. By petsua daka there is no halacha l'moshe misinai like there is by treifos that would say we follow the actual list in the gemara. Rather, by petsua daka we follow the actual metsius of what the procedure is determined to cause nowadays.

Interestingly, the Rashba (1:98) is cited by Rabbi Cohen as saying the following on the issue:


[The Rashba] quotes various instances where the Gemara recounts stories of people who claimed that they experienced circumstances which contradicted the rules of the Gemara. The Rabbis were persistent that the people were obviously lying about their stories and, in each ci:l.se, the people finally admitted that they had told the stories inaccurately. The Rashba concludes, therefore, that a statement made by the Gemara must always be considered true. Their teachings are all based on the teachings of Moshe Rabbenu; we are prepared to say even that one thousand people are lying rather than reject one word of the Gemara.

So according to the Rashba even if we think the metzius is different we should just assume we are wrong.

Rav Moshe however says that even the Rashba would have to admit in certain instances that the metzius is different if it is strikingly apparent. Rabbi Cohen cites some Gemaras that could fit into the "strikingly apparent" category:

1. Rambam Perush HaMishnayos Becohoros 8:2 - If a woman delivers a baby by C-section she won't be able to have another one.

2. Niddah 31a - Boys are born face down and girls face up.

*As mentioned, the material in this piece was taken from the much longer article in the Journal of Halacha. For practical halachic rulings consult a halachic expert.

Do Angels Understand Aramaic? Part 2

In this previous post we quoted the gemara that says that one should not pray in aramaic because angels don't understand aramaic. We asked from R' Ovadiah Yosef - shouldn't one direct his tefillos straight to Hashem?

R' Ovadiah Yosef answered that b'tzibbur, indeed, all tefillos are directed only to Hashem. However, b'yichidus one could direct the tefillos to angels to act as mediators to Hashem. He proves this from the fact that we daven at kivrei avos. The idea is, again, that we don't mind having the tzaddikim "deliver" the tefillos to Hashem.

We mentioned that the Briskers are very machmir not to ever ask the angels to act as mediators to Hashem. For this reason they do not say Malachei Rachamim. The question is what do they do with the gemara that one shouldn't pray in Aramaic because the angels don't understand aramiac? In the comments Josh Waxman (homepage) suggests the following answer for that gemara:

Of course one only addresses Hashem in tefillot. But, completely without being asked to, the angels "pick up" those prayers and deliver them and present them before Hashem. And one should not daven to angels, even as "mediators."If in Aramaic, the angels would not recognize the words as prayers, or else would not be able to repeat them, or some such idea.

So one can never ask other beings to deliver the prayers to Hashem - thus explaining the Brisker chumrah. However, on some metaphysical level the angels "pick up" the prayers and deliver them to Hashem anyway (however exactly that works and whatever that means). If you want to see more you can read the comments to that post here.

Eating Matzah on Erev Pesach

The Yerushalmi in Pesachim in the beginning of the 10th perek says from R' Levy that anyone who eats matzah on Erev Pesach it is like he is boel arusaso b'beis chamav. From here we learn that on Erev Pesach one should not eat matzah. There is a machlokes rishonim as to how much of the day of erev pesach is the prohibition in effect.

On Daf 15b in Dapei HaRif of Pesachim the Baal HaMaor and the Milchamos argue about this issue. The Baal HaMaor says that the prohibition only exists from the time the issur chametz sets in 6 hours into the day of erev pesach. In other words, the prohibition to eat matzah on erev pesach is directly linked to the prohibition of chametz on erev pesach.

The Ramban argues. He holds that from the Yerushalmi it is clear that the prohibition is all day. The proof of the Ramban from the Yerushalmi isn't all that clear.

In the Yerushalmi there is another shitah brought from R' Yehudah ben Besaira who makes the statement - whether chametz or matzah one can't eat it. The Ramban says, from the fact that he said nothing about 6 hrs. into the day, it follows that the issur is all day.

The Ran (dapei harif 16a) asks on this proof. Even if we assume that this is what R' Yehuda ben Besaira meant he is still linking the issur matzah to the issur chametz. R' Yehuda ben Besaira is merely l'shitaso that chametz is also assur all day on erev pesach. We, who hold that the issur chametz is only from chatzos should apply the same issur to matzah. In other words, R' Yehuda ben Besaira is linking the issur chametz to the issur matzah, so the Ramban has no proof whatsoever.

R' Moshe in Iggros Moshe Chelek 1:155 addresses this machlokes rishonim. He is trying to determine how we should pasken. Should we be machmir like the Ramban or not?

R' Moshe makes a lengthy argument to try to show how the Yerushalmi actually fits with the Ramban. It seems to me that the thrust of his argument relies on the logic that if the tannaim don't say anything we should assume that the issur is all day. It is a much more lengthy argument though, so I don't want to oversimplify it - take a look yourself.

Then R' Moshe writes the following (rough translation):

And therefore even though the issur of matzah on erev pesach is only midrabbanan, that according to the rules of psak we that the Rema writes in Choshen Mishpat 25:2 we should go like the lenient opinion that the issur is only from the zman issur chometz, nevertheless since it has been explained that the simple pshat of the Yerushalmi is like the Ramban that it is assur all day because the explanation of the Baal HaMaor and the Ran is dochek, therefore one should be machmir like the Ramban and the Rambam acc. to the Maggid Mishneh and other Rishonim that assur all day, and as is the minhag in our countries.

This seems difficult to me. R' Moshe is ruling like the Ramban because the pashtus of the Yerushalmi is like him. But the Ran himself was talking about the same Yerushalmi and said that the Yerushalmi isn't like the Ramban. And the Baal Hamaor was also talking about the same Yerushalmi, so he also didn't think the pashtus was that way. Essentially we have rishonim arguing about what the pashtus of the Yerushalmi is. Also, R' Moshe took several columns to explain how the Yerushalmi follows the Ramban (to answer a question of the Ran), so how is that the pashtus?

On the other hand, R' Moshe does say that the minhag is to be machmir, so for that reason maybe one should be machmir.

R' Moshe also deals with the analogy to an arusah b'beis chamav. He isolates two ways of understanding the issur of arusah b'bais chamav. One is that it is the same as the issur penuyah, essentially she isn't yet your wife. The second approach is that only bias mitzvah is muttar (like for mitzvas onah or for pru urvu). In the arusah period there is no mitzvah - so m'meilah biah is assur.

In the second approach the analogy is smooth. By matzah also, we aren't at the zman mitzvas matzah yet, just the preparatory stage - so it is assur. R' Moshe points out that in the first approach it is difficult because if the issur arusah is the same as penuya - so matzah should be assur all year! Why only on erev pesach?

R' Moshe says the two derachim would actually break down into the shitas baal hamaor and Ramban. In the second approach the ides is that in a preparatory stage we assur. If so, it makes sense that all of erev pesach is considered preparatory. R' Moshe even says that 30 days before pesach it could've been assur, but the Rabbanan were meikil. He says this also explains the minhag not to eat matzah from Rosh Chodesh Nissan until Pesach.

In the first approach where the analogy isn't smooth, R' Moshe says pshat must be that we assur matzah any time that there are "dinei pesach" just like we assur an arusah who has "dinim of ishus". Thus, the issur would only be in the zman of dinei pesach - i.e. when chametz is assur.

All of this I also have a bit of difficulty with. I thought that within the analogy the Baal HaMaor's approach is surely more logical (to relate the issur matzah and the issur chametz). Why do we only assur matzah because of arusah b'bais chamav? Why not assur lulav before sukkos and sitting in the sukkah as well sukkah? And marror before Pesach? How would R' Moshe explain this? If the issur is not to do a mitzvah in the preparatory time preceding the mitzvah all these cases should also be assur.

Therefore, it would seem that the idea is that when chametz is assur you might think that matzah is now muttar. Just like an arusah, if she is now assur to other men and ishus started, one might think she is muttar to her husband. Thus, we say no. The heter to her husband is only after nissuin, and the heter for matzah is only after Pesach begins. If you tie the issur matzah into chometz it makes much more sense why the issur applies here and not to other mitzvos on erev yom tov. The issur chametz and heter matzah are related. Therefore, the Yerushalmi says no, there is a erusin period where you do not yet eat matzah.

These are some issues that I had with this Iggros Moshe. Any insights would be appreciated.

Do Angels Know Aramaic?

The Gemara in Shabbos 12b mentions that one shouldn't daven in aramaic because "the angels don't understand aramaic". The clear mashmaos of the gemara is that one is allowed to pray to angels who will then deliver the prayer as messengers.

Rav Ovadiah Yosef in Yabia Omer Chelek Alef Siman 34 deals at length with this gemara. He brings the Kaf HaChaim O.C. 581:26 that asks - isn't it Hashem Himself that answers our prayers? Doesn't it say in the Torah "K'Hashem Elokenu B'Chol Koreinu Eilav"? Rav Ovadiah answers that the pasuk applies b'tzibur, when the Shechina is shoreh. Rav Ovadiah brings a proof that this is the case because we are also lenient in davening by kivrei avos. Again, we see that b'yichidus we don't mind davening in this type of fashion.

This issue of davening by kivrei avos is also a very big discussion. The Iggros Moshe O.C. 5:43:6 deals with this issue. He brings the Shach in Y.D. 179:15 who brings a MaHarach that goes back and forth on the issue. When dealing with this issue we also have to deal with the issur of Doresh El HaMeisim.

He also brings a minhag from R' Chaim Volozhin not to say Malachei Rachamim and instead subsitute the phrase Avos HaOlam Ahuvei Elyon to avoid the possible issur of davening to the angels.

All of this is related to whether you actually can pray in aramaic if you are b'yichidus. The Yabia Omer concludes that in fact you can't because the angels do not understand that language.

Many Briskers are very machmir in this issue and do not say Malachai Rachamim. They hold that there are significant mekoros prohibiting davening to any being but Hashem and that it is even m'ein avodah zarah to pray in any other fashion.

As an interesting aside Tosafos in Shabbos d"h She'ein mention that the angel Gavriel is an exception and does understand aramaic. He brings a gemara in Sotah 33a to prove it because it says that the angel Gavriel taught Yosef HaTzaddik all 70 languages.

Finally, Tosafos end with an interesting question. How can it be that the angels don't understand aramaic if they can even understand what a person is thinking!?

*Note - When I speak of "davening to angels" of course I mean as mediators to Hashem. I thought that was self understood. Sorry if it was unclear.

Mitzvos Tzrichos Kavana

In the previous post we mentioned a shittah that even though by most mitzvos we say mitzvos ein tzrichos kavana by mitzvos of amirah kavana is needed forsure. Rav Soloveitchik addresses this distinction in Iggros HaGrid Tefillah 3:4. He asks, what would be the logic of this distinction? If kavana is needed it should be needed by all mitzvos. Why distinguish between mitzvos of amirah and other mitzvos?

Rav Soloveitchik answers that when we say mitzvos need kavana the pshat isn't that there is an additional requirement of kavana besides the maaseh mitvah in order to be yotzei. Rather, the pshat is that without kavana the maaseh mitzvah isn't a maaseh mitzvah at all. It's basically a din that without kavana to be yotzei you have the status of a misasek. If so, we can understand why we would distinguish between different types of mitzvos. If the din of mitzvos tzrichos kavana affects the actual maaseh mitzvah, so different types of maasim may be affected differently.

This is a classic example of the brilliance employed by Brisker analysis. Think about what most people would say if they were asked to explain why mitzvos tzrichos kavana by mitzvos d'amirah and not other mitzvos. Probably they would resort to trying to explain the difference between mitzvos that are said and mitzvos that are done. They would probably offer some kind of psychological pshat about how amirah is more related to kavana than maaseh or something like that. Of course this is a futile exercise - we already know that distinction! The question really is why should that make a difference? Either mitzvos need kavana or not. When pressed on this issue they would probably offer some type of dochek sevara. Rav Soloveitchik here goes in a different direction. He assumes that there is an inherent distinction between mitzvos d'amirah and other mitzvos. How to word that distinction isn't really relevant. Rather, the issue to him is why should any type of distinction between mitzvos make a difference in the kavana requirement? From this he deduces that the necessity for kavana is tied to the maaseh mitzvah itself, and not simply an additional requirement. A very good lesson in lomdus.

What Defines a Beracha? Part 2

In the previous post we discussed the issue of Kavana in a beracha. We brought the gemara in Berachos 12b where a person makes a correct beracha in the end but at the beginning of the beracha he had the wrong beracha in mind. Does that improper kavana ruin the beracha? The gemara ends with no conclusion.

We brought a question from a Rambam (Tefillah 10:6) that paskens that in davening if in the middle of shemoneh esrai you suddenly realized that you already davened you should stop davening. The idea is that the tefillah in the beginning is tefillas chovah. You can't then continue b'toras nedava because a tefillas chovah and tefillas nedavah are two different cheftzas of tefillah.

A commenter correctly pointed out that this stirah might not really be a stirah in the Rambam at all because there are different ways to learn that gemara. I think the commenter is absolutely right that if we are going to do this the right way we have to look at each rishon separately and not try to string together all the shitos. So let's take a look at the two Rambams:

Rambam Berachos 8:11-

יא לָקַח כּוֹס שֶׁלְּשֵׁכָר בְּיָדוֹ, וְהִתְחִיל הַבְּרָכָה עַל מְנָת לוֹמַר שֶׁהַכֹּל, וְטָעָה וְאָמַר בּוֹרֵא פְּרִי הַגֶּפֶן--אֵין מַחְזִירִין אוֹתוֹ

The Rambam seems to be saying that if a guy meant to say shehakol and accidentally said hagafin it's fine. Thus, the Rambam here seems to be saying that we follow kavana over what the person actually said.

Rambam Tefillah 10:6-

מִי שֶׁהָיָה עוֹמֵד בַּתְּפִלָּה, וְנִזְכַּר שֶׁכְּבָר הִתְפַּלַּל--פּוֹסֵק וְאַפִלּוּ בְּאֶמְצַע הַבְּרָכָה; וְאִם הָיְתָה תְּפִלַּת עַרְבִּית--אֵינוּ פּוֹסֵק, שֶׁלֹּא הִתְפַּלַּל אוֹתָהּ מִתְּחִלָּה אֵלָא עַל דַּעַת שְׁאֵינָהּ חוֹבָה

Here the Rambam is pretty clearly saying that the intention for chovah makes it a tefillas chovah and the tefillah can no longer be mitztaref to tefillas nedavah.

So, in terms of the final psak of the Rambam I really don't see any stirah. It seems that the person's kavana does determine the nature of the beracha.

A final issue to deal with is why should the person's kavana should be important at all? What about the general principal that mitzvos don't need kavana?

This question is addressed by Rabbeinu Yonah. A number of answers are given. First, it could be that by mitzvos of amirah kavana is needed. (Rabbi Schachter brings a Teshuvos Ben HaYemin that this is only by berachos.) Another answer given is that even though mitzvos don't require kavana, but a wrong kavana does mess up the mitzvah.

I was thinking to approach this from a slightly different angle. Sometimes a person does a mitzvah without proper kavana. In such a case the maaseh is a maaseh mitzvah and the only problem is the lack of kavana. However, in halacha there is also a category called misasek. Misasek is generally understood as meaning that you did not even intend to do the maaseh. For example, if I pick up a lulav not intending for the mitzvah - that is eino miskaven. However, if I am trying to pick up something else and then pick up the lulav - that is misasek. There it's not a question of a maaseh without kavana, but rather it may not be a maaseh mitzvah at all.

The way the Rambam explains the case the person actually meant to say shehakol and said hagafen. I would think this is more comparable to misasek than eino miskaven. If so, we can understand why having the kavana to say the wrong beracha could mess everything up. If you actually said something different than you intended it may be as if you said nothing at all. We will address the relationship between misasek and mitzvos tzrichos kavana more in the next post.

A final issue is what about in the Rambam's actual case where you said the wrong beracha and had the right intention. How can this be good? You didn't even say the right thing. Perhaps the commenter was correct when he explained as follows:

this is the shitah of the rambam, who alone among the rishonim holds that one can be yotzeh a bracha through hirhur alone

The commenter is probably referring to Hilchos Berachos 1:7 where the Rambam is in fact mashma that you can be yotzei a beracha without actually saying anything. Here is that Rambam -

ז כָּל הַבְּרָכוֹת כֻּלָּן, צָרִיךְ שֶׁיַּשְׁמִיעַ לְאָזְנוֹ מַה שְׁהוּא אוֹמֵר; וְאִם לֹא הִשְׁמִיעַ לְאָזְנוֹ, יָצָא--בֵּין שֶׁהוֹצִיא בִּשְׂפָתָיו, בֵּין שֶׁבֵּרַךְ בְּלִבּוֹ

What Defines a Beracha?

The Gemara in Berachos 12a discusses a case where a guy has beer and starts to make a hagafen because he thinks it is wine. Then, mid-beracha he realizes it's beer and finishes the beracha properly with a shehakol. So, essentially he recites the right beracha but for the entire beginning for the beracha he intended on saying the wrong one. So do we follow what he said and say it is a good beracha? Or, do we follow the intent and say it is a bad beracha? The gemara ends in a safek.

There is a question on this gemara from a Rambam (Tefillah 10:6). The Rambam there paskens that if someone davens mincha and remembers that he actually already davened he should stop right there in the middle of shemoneh esrai, even right in the middle of the beracha. The question is why can't the guy just continue shemoneh esrai and switch his intent from davening mincha to davening a tefillas nedavah? Apparently, the reason is that tefillas chovah and tefillas nedava are two separate cheftzas of shemoneh esrai that are not mitstaref. And, apparently, the mere intent of davening a chovah makes it a chovah.

The question then is, why does the Rambam pasken that we clearly follow intent, when in the gemara it seemed to be a standing question.

Rabbi Schachter in Eretz HaTzvi Siman 1 addresses this question. He distinguishes betweent the two cases with the following rather simple distinction. In the case of the beer what was recited was unambiguous. It was clearly a shehakol. Thus, the intent cannot undo what was actually recited. However, in the case of shemoneh esrai, both tefillas chovah and tefillas nedavah are exactly identical in recitation. The only difference between them is the intent. In that case we certainly follow the intent to determine what kind of shemoneh esrai it is.

Rabbi Schachter then applies this distinction to a number of different rulings that he finds in the poskim. Here is a list of those rulings:

1. Rashba Berachos 26b - The Rashba paskens that if you missed a tefillah and recited the tashlumin before the main shemoneh esrai of the next tefillah so the fact that you intended the tashlumin to go first means that you actually did it out of order and the tefillah is no good (because the tashlumin should always go second). [Note: I am actually oversimplifying the case of the Rashba because he is actually dealing with a complex case of making up Shabbos Minchah at Motzei Shabbos Maariv, but for our purposes these details are not necessary.]

2. Pri Megadim O.C. 209 - The Pri Megadim deals with a strange case where a guy said two endings to one berachah. For example he ended with both zokef kefufuim and matir assurim. The psak is that we follow the intent because the wording is not clearly one way.

3. Magen Avraham O.C. 268:3 - In the third case Rabbi Schachter deals with a string of complicated cases on Shabbos where you started Atah Chonen instead of the Shabbos davening. The psak by Shacharis is different than by Mincha and Maariv because by Mincha and Maariv the nusach also begins with atah, so the nusach wasn't clearly for weekday, whereas by Shacharis there was not only a wrong intent but an actual nusach change.

To Summarize: We are trying to explain how come sometimes intent clearly plays a role in defining the nature of the beracha, whereas othertimes we find that it is a safek if the intent plays a role. The distinction being suggested is that if there are no other factors intent can be the determining factor. However, if there are actual nusach distinctions, the nusach factor may override the factor of intent.

Hasagas Gvul - Yored L'soch Umnaso Shel Chaveiro

Many of the halachos of hasagas gvul are discussed in the gemara in Baba Basra 21b. From certain sources it seems that competition is permitted according to halacha. In other sources, however, there seems to be some restrictions. The poskim discuss exactly where to draw the line between what is mutar and what is assur.

The Chavos Yair (Teshuvos Siman 42) in discussing the issue of hasagas gvul writes as follows:

It is permitted to enter [to compete] the trade of your friend except if you are a member of another town [and hence do not pay taxes to the local authorities] ... so is the custom all over Israel.

In other words, according to the Chavos Yair, one is allowed to compete freely in business and it is not considered as part of the issur of yored l'soch umnaso shel chaveiro at all.

The Chasam Sofer in Choshen Mishpat Teshuva 61 brings this opinion of the Chavos Yair and argues with it. He writes as follows:

Certainly a member of the town [may compete] against another member of the town - even l'chatchila it is mutar and this is not at all called yored l'soch umnaso shel chaveiro... because he can do in his own [property] and he can do in his own [property] and therefore it is not called yored l'soch umnaso shel chaveiro... however in a case like ours where through his entering the profession he pushes aside [the competition] completely that it is impossible for both of them to gather [enough customers], and it turns out that he is pushing aside [the competition] completely this is yored l'soch umnaso shel chaveiro mamash etc.

Thus, the Chasam Sofer is ruling that it depends. If through your opening of a business you will destroy the other person's business, then, in fact, you are "descending" into the other person's livelihood and it is prohibited. However, if there is room for both businesses to exist, there is nothing wrong with competition.

Rav Moshe Feinstein in Iggros Moshe Choshen Mishpat 1:38 quotes this psak of the Chasam Sofer when dealing with the issue of a "breakaway minyan". Rav Moshe in the teshuva is discussing a shul where a number of the congregants no longer like the Rabbi. This particular Rabbi had actually bought the shul property about three years prior and now feared that the breakaway minyan would cause him a great loss of money, as his shul membership would now significantly decrease.

Rav Moshe rules, based on the above Chasam Sofer, that the congregants are not allowed to break away from the shul as they will be cutting off the livelihood of the Rabbi. It is exactly a situation like the Chasam Sofer's where the area cannot sustain two shuls and, therefore, opening a competing minyan would not be allowed. Rav Moshe argues further that in this case the second minyan is not even a business venture in any sense. Thus, the second minyan is essentially destroying the first Rabbi's parnassah not even for the purpose of creating a parnassah of it's own, and thus prohibited all the more so.

In another teshuva in Choshen Mishpat (2:40), Rav Moshe similarly rules that if a certain vaad of Rabbanim are already giving a hashgacha somewhere, another vaad cannot come in and try to take over the hechsher. Again, this is a situation of yored l'soch umnaso shel chaveiro and therefore prohibited.

Along the same lines, Rabbi Yitzchak HaKohen Kook discusses a situation where a community was trying to pressure a Rabbi to resign his position. He writes as follows (Techumin Vol. 5 Page 285, 286):

...On the basic issue...had I not seen these words uttered...I would not have believed ... it has not been seen nor heard in the Jewish community even in relation to a minor position, and certainly not as it relates to the crown jewel of the rabbinate in a great and holy congregation in Israel. It is, of course, a widely held halacha that all publicly-appointed officers, and certainly in matters of sanctity, carry within themselves the aspect of inheritance even after the life of the office holder...and how can we allow such travesty to diminish, G-d forbid, the position of a great Rav in Israel who leads his community in the path of Torah and mitzvot for decades...to remove him from his post through pressure. It is certain that all things that are being done to pressure you to agree and submit to this awful step have absolutely no validity and are considered like naught ... And even if you receive some favor or compensation for giving up your rights it is meaningless... For it is well known that the pain of a person to see his honor and dignity taken away and given to others... is a terrible thing to behold... And the pain certainly is great when one's dignity is taken away without any cause... And I am certain that the rabbi [who is trying to usurp] will withdraw.

And Rav Moshe too writes in Choshen Mishpat (2:34):

It is quite simple and certain that whoever was elected as rabbi in any synagogue... cannot ever be removed from his position ...even if the contract stipulates a specific time period.

*For more on this topic see the article on Hasagas Gvul by Rabbi Simcha Krauss in the Journal of Halacha and Contemporary Society Volume 29. And, of course, for final rulings seek the wisdom of your local trusted halachic expert.

Kol Yisrael Arevim - Im Yatza Motzee

The Gemara in Berachos 20b discusses whether women are chayav in Birchas HaMazon on a d'orayssa level or only midrabbanan. The gemara says it makes a difference in terms of whether a woman can be motzee a man in bentching. If the chiyuv of a woman is only midrabbanan her chiyuv is then a lower level of chiyuv than a man, who is chayav midorayssa. Thus, the woman would not be able to be motzee the man in the berachah. If, on the other hand, her chiyuv is mid'orayssa, then she could be motzee the man.

The Rosh there asks the following question. We know that by birchas hamitzvos there is a general rule of im yatza motzee. This means that if someone already was yotzei a mitzvah, he can still be motzee his friend in the same mitzvah. So, even if someone was already yotzei the mitzvah of kiddush, for example, he can still recite kiddush for his friend who wasn't yet yotzei. This rule is based on the inyan of arvus. Kol Yisrael Arevim tells us that every Jew is a guarantor for his friend. Thus, if a Jew hasn't yet fulfilled his mitzvah, it is as if all Jews haven't fulfilled their mitzvah, and they can be motzee this Jew. Based on this the Rosh asks, even if a woman were only chayav in bentching midrabbanan, couldn't we just apply the rule of arvus and say that since the man is chayav it is as if the woman is chayav and she therefore could be motzee him? In other words, why can't the woman use the concept of arvus to allow her to be motzee the man. The Rosh answers that the concept of arvus doesn't apply to women. What exactly does the Rosh mean by this?

This issue is raised in the notes of R' Akiva Eiger in Siman 271 of Orach Chaim. The Shulchan Aruch there brings the halacha that women are chayav in kiddush the same way that men are. Even though kiddush is a mitzvah aseh shehazman gerama we employ the rule of kol sheyeshno bishmirah yeshno bizchirah to be mechayev them. The Taz there says that this would mean that a woman can even be motzee a man in kiddush because there level of chiyuv is the same (as per the gemara in Berachos 20b).

R' Akiva Eiger there brings a safek from the Dagul Mervavah. The halacha is that one can be yotzee kiddush in the shemoneh esrai of Maariv. So, if a man comes home from shul and his wife hasn't davened yet, how can he be motzee her in kiddush? Since he has already davened his chiyuv in kiddush is only midrabbanan (because the chiyuv to say kiddush al hakos is only midrabbanan if you've already been yotzei the "kiddush" aspect). The woman, who has not yet davened, is chayav on a d'orayssa level. Thus, her obligation is on a higher level than her husband's. If so, the only way that the man can be motzee his wife is through arvus. Yet, the Rosh said that there is no arvus for woman. The Dagul Mervavah therefore is unsure what the Rosh means. If the Rosh means that there is no arvus for women at all, so the man should not be able to say kiddush for his wife.

R' Akiva Eiger then writes that, in his opinion, the Dagul Mervavah is misunderstanding the intent of the Rosh. In reality there is no difference at all between men and women when it comes to arvus. The rule of Kol Yisrael Arevim applies equally to both men and women. Rather, what the Rosh meant, was that if women are not chayav in bentching m'dorayssa, so for that mitzvah there is not arvus for women. Meaning, that arvus only applies to mitzvos which the person at least has a theoretical obligation to perform. If someone was never chayav in the mitzvah, there can be no arvus for that person in that mitzvah. Therefore, R' Akiva Eiger distinguishes between bentching and kiddush. By bentching, if the chiyuv for women is only midrabbanan, so there is no arvus for women. However, by kiddush, where women are as obligated as men, so there is also arvus for women. Thus, even though the man has already discharged his obligation for kiddush, he can still come home and be motzee his wife because of the rule of Kol Yisrael Arevim.