Gray Matter II
גריי מאטר ב
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-Gray Matter, by Chaim Jachter. Teaneck, N.J, 2000-2012
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Gray Matter II
Laws of Shabbat
Saving Lives on Shabbat
Part I: General Introduction
In the next several chapters, we address issues related to piku’ach nefesh (saving a life) on Shabbat. We begin our discussion by outlining the basic parameters of piku’ach nefesh. In later chapters, we address specific issues that commonly arise.
Introduction
Any discussion of piku’ach nefesh on Shabbat must open with the Shulchan Aruch’s celebrated words (Orach Chaim 328:2):
It is a mitzvah to violate Shabbat for one who is dangerously ill. Furthermore, one who acts quickly in such circumstances is worthy of praise, whereas one who poses a question [to a rabbi to see if it is permissible to violate Shabbat to preserve life], sheds blood.
The Mishnah Berurah (Orach Chaim 328:6) notes that the Yerushalmi (Yoma 8:5) condemns Torah scholars who are posed with the question of whether danger to life warrants the desecration of Shabbat. He explains that a Torah scholar should publicize the fact that one must desecrate Shabbat in case of piku’ach nefesh, so that, if such a situation were to arise, people would not hesitate to do whatever is necessary to save human lives. The Mishnah Berurah also cites the Radbaz’s ruling (Teshuvot 4:67) that anyone who refuses to desecrate Shabbat in order to save his own life may be coerced to do so. Before trying to coerce him, however, one should try to convince such an individual to desecrate Shabbat, presumably because coercion may further traumatize him.
Moreover, the Rambam (Hilchot Shabbat 2:3) denounces as heretics (minim) those who believe that one may not violate Shabbat in order to save a life. He accuses those who expound such views as degrading the Torah by erroneously implying that “Torah laws are evil edicts according to which one cannot live,” whereas, in truth, “the Torah’s laws are not mean-spirited, but rather merciful and kind, and they promote peace in the world.”
Rav Yosef Dov Soloveitchik (in a 1984 lecture at Yeshiva University) recounted a personal anecdote that illustrates the importance of preserving life even if it involves violating Shabbat. As a young boy, Rav Soloveitchik fell ill on Shabbat and his illustrious father and grandfather were at his side. His grandfather, Rav Chaim Soloveitchik, asked the doctor who had come to see the young boy if turning on a light would assist him. The doctor replied, “That would not be a bad idea.” Rav Chaim immediately instructed his son, Rav Moshe Soloveitchik, to turn on the light to aid the doctor in his work. Rav Moshe hesitated, because the doctor never stated that the light was unquestionably necessary, so Rav Chaim called him an apikores (heretic). When Rav Chaim was asked how he could treat Shabbat so lightly, he responded that he was not acting leniently regarding Shabbat, but strictly regarding the laws of piku’ach nefesh.
Talmudic Background
The Gemara (Yoma 82a) asserts that piku’ach nefesh overrides every Torah law except for the prohibitions of idolatry, sexual immorality, and murder. A few pages later (85a-85b), it offers numerous sources for why piku’ach nefesh overrides Shabbat. Rabbi Elazar ben Azariah reasons that if circumcision overrides Shabbat despite affecting only one organ of the body, so the vital needs of the entire human body surely override Shabbat. Rabbi Shimon Ben Menasya presents the famous principle, "Violate one Shabbat for [the endangered individual’s] sake so that he will observe many future Shabbatot.” Shmuel adds that the Torah (Vayikra 18:5) urges us to “live” by its laws (“Vachai bahem”), implying that observing the Torah should not cause death (“Velo sheyamut bahem”).
One could ask why one sage after another continued to seek additional sources for asserting that piku’ach nefesh overrides Shabbat. Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 8:15:1:2) suggests that since the Talmud equates desecration of Shabbat with idolatry, one might think that piku’ach nefesh does not override Shabbat, just as one may not worship idols even in order to save a life (Pesachim 25a; Rambam, Hilchot Yesodei Hatorah 5:2,6). Hence, the Talmud emphasizes that one may nevertheless violate Shabbat in order to preserve human life.
Spiritual Danger
Interestingly, the Shulchan Aruch (Orach Chaim 306:14) rules that one must violate Shabbat in order to save someone from forced conversion to another religion. However, if a Jew is willingly converting out of Judaism, the Mishnah Berurah (306:56) writes that no halachic authority permits violating Biblical prohibitions to save such a person. He cites two opinions about the permissibility of violating rabbinic prohibitions to try saving such a person, and he is inclined to rule leniently.
The Observant or Non-Observant Physician?
Rav Shlomo Zalman Auerbach (cited by Rav Yehoshua Neuwirth, Shemirat Shabbat Kehilchatah, Chapter 32 note 125) rules that it is preferable to call an observant doctor to a medical emergency on Shabbat rather than a non-observant one. He argues that the non-observant doctor drives on Shabbat in any event, so his driving to an emergency desecrates Shabbat. According to this logic, summoning a non-observant doctor to an emergency situation on Shabbat violates lifnei iver (causing another to sin; see Pesachim 22b). Nevertheless, Rav Shlomo Zalman elsewhere writes that one may call a non-observant doctor, if necessary, for just as one may violate Shabbat in order to save a life, so too may he violate lifnei iver (Teshuvot Minchat Shlomo 2:34:41).
Rav Zalman Nechemia Goldberg (Halachah Urefu’ah 4:181-191) cites a Talmudic passage that appears to disprove the argument against calling a non-observant doctor. The Gemara (Menachot 64a) records a dispute regarding actions that intend to violate Shabbat but turn out to save a life. For example, the Gemara describes a case in which someone, despite hearing that a child was drowning, spread his fishing nets in the river with the sole intention of catching fish (tzad, a prohibited activity on Shabbat), without intending to save the child. When he raised the net, it both saved the child and caught some fish. Rabah believes that such a person has not desecrated Shabbat, for we ignore his intentions and consider only his concrete action (which saved a life). Rava maintains, however, that the person has violated Shabbat because intent determines the character of one’s actions. The Rambam (Hilchot Shabbat 2:16) rules like Rabah that such an action does not desecrate Shabbat, while the Ra’avad (ibid.) appears to rule that it does.
Rav Zalman Nechemia derives from this passage that even if a doctor routinely desecrates Shabbat, he is not considered a sinner when his actions save a life (in accordance with the Rambam’s view). In fact, Rav Moshe Feinstein (Teshuvot Igrot Moshe, Orach Chaim 4:79), favors having non-observant Jewish doctors take the Shabbat shift of being on call, because they would violate Shabbat anyway, but this way they will violate Shabbat for the sake of piku’ach nefesh (which is permitted). Rav Moshe writes explicitly that there is no problem of lifnei iver (causing another to sin) in such a situation.
When Is There Danger to Life?
Contemporary authorities discuss the precise definition of a life-threatening situation. Rav Moshe Feinstein (Igrot Moshe, Orach Chaim 1:129) posits that it is difficult to give an arbitrary definition of such a case. Instead, he writes that “anytime someone feels he has excessive fever we may violate Shabbat [to heal him].” One is forbidden to violate Shabbat only if it is clear that the fever poses no danger.
Nevertheless, Rav Moshe does offer some guidelines regarding how to determine when a situation warrants violating Shabbat. He writes that 102.F constitutes excessive fever and thus demands violating Shabbat to help the patient. Additionally, one may violate Shabbat if the sick individual’s temperature is approaching 101 F but he feels that he is in danger. Also, if an infant is quite distressed and appears to be ill, and has a temperature even slightly above 100gF, Shabbat should be violated. Rav Moshe concludes that while Shabbat may not be violated for a low-grade fever in the case of a common cold, it may be violated for a low-grade fever if the fever results from a respiratory infection or an infection of another internal organ.
Rav Moshe’s precise parameters have engendered criticism. Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 8:15:7:3) recounts that he once told Rav Moshe’s rulings to a group of doctors, and they responded with astonishment. Rav Waldenberg questions whether one whose fever is currently approaching 101oF faces any danger that cannot be treated on Shabbat with medicines that do not violate any Biblical transgressions. It is difficult to give definitive guidelines in these types of cases. If one is unsure, it is advisable at the very least to seek a physician’s advice by telephone, since the use of a telephone most often does not violate a Biblical prohibition according to most authorities.
It should be noted that even one who has no fever may still be dangerously ill. Thus, at the very least a physician should be contacted even if the sick individual has no fever, whenever reason exists to assume that he is severely ill. Indeed, the Gemara (see Shabbat 129a) resolves questions as to whether a situation is sufficiently dangerous to warrant chillul Shabbat in the direction of leniency. The stated principle is “safek nefashot l’hakeil,” one should be lenient when one is unsure as to whether there is danger to life.
Calming an Ill Individual
Sometimes, tending to an ill individual’s psychological needs is essential to preserving his welfare. The Gemara (Shabbat 128b) permits lighting a candle in the room of a blind pregnant woman, while delivering the baby. Although the woman herself cannot see even with the light, the light helps calm her, as she knows that the candle will enable others to see. Putting her mind at ease constitutes piku’ach nefesh.
Based on this principle, poskim discuss the propriety of relatives traveling to a hospital on Shabbat when a patient requests their presence. Rav Moshe Feinstein (Teshuvot Igrot Moshe, O.C. 1:132) permits a husband to accompany his pregnant wife to the delivery room on Shabbat if she fears traveling alone. Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 8:15 Kuntres Meshivat Nafesh 9) raises the possibility of permitting travel on Shabbat in a manner that constitutes only a rabbinic prohibition, to be with a dangerously ill relative if circumstances clearly indicate that one’s arrival will calm the relative. As an example, Rav Waldenberg mentions someone who falls ill in a remote village, where he does not know anyone. This person likely feels extremely unsettled, because he is being treated by people whom he does not recognize. Hence, his relative’s presence would calm him and hopefully expedite his recovery. Of course, both these authorities emphasize that one must assess each given situation, in order to gauge the severity of the prohibitions involved, in addition to determining whether the patient’s emotional state is indeed so unsettled that it is actually harming his health.
I was once told about an elderly Jewish woman who was rushed to the hospital, and subsequently released, all on Yom Tov. Circumstances dictated that she could not remain in the hospital for the remainder of the Yom Tov, so Rav Hershel Schachter permitted asking a non-Jew to drive her home. He reasoned that the woman was still sick enough to be considered ill, and it is permitted to ask a non-Jew to violate Shabbat on behalf of an ill individual (even if the illness is not life-threatening). Rav Schachter also stated that it seems clear that just as the woman’s grandson was permitted to accompany her to the hospital, so, too, may he accompany her home (if necessary for her emotional welfare), as the non-Jewish driver does nothing extra on behalf of the grandson. Rav Schachter told me that there is no distinction between Shabbat and Yom Tov in such a situation.
Part II: Minimizing Prohibited Activity (Hutrah vs. Dechuyah)
In the previous chapter, we established that piku’ach nefesh (saving a life) overrides the restrictions of Shabbat. We now explore whether one must attempt to minimize desecration of Shabbat in such situations. In technical terms, this discussion is called hutrah or dechuyah. Hutrah (literally, “permitted”) means that, due to the life-threatening circumstances, the acts are not viewed as desecration of Shabbat at all. Dechuyah (literally, “superceded”) means that the acts are always viewed as fundamentally prohibited, but they are permitted to the extent that they must be done to save a life.
Talmudic Background
The Gemara never explicitly discusses whether violating Shabbat to save a life is hutrah or dechuyah, but the terms hutrah and dechuyah do appear in the Gemara in other contexts. Although the Talmud does not address piku’ach nefesh explicitly, four sources implicitly address this issue in the context of Shabbat, with two sources seeming to support each possibility.
The Gemara (Shabbat 128b) rules that one may light a lamp on Shabbat in a room where a blind woman is giving birth if the blind woman requests that a lamp be lit. Although she will not directly benefit from the light, the Gemara explains that kindling the lamp soothes her mind. Many argue that this source demonstrates that piku’ach nefesh is hutrah. Otherwise, such a violation of Shabbat would not be permissible, for it does not directly contribute towards saving her life.
Moreover, the Gemara (Yoma 84b) states that when Shabbat must be violated, gedolei Yisrael (literally, “big ones of the Jews”) should perform the act, rather than a non-Jew or a Jewish minor. If piku’ach nefesh were dechuyah, asking a child or a non-Jew to violate Shabbat would appear to be preferable, since their desecration of Shabbat is far less severe than that of an adult Jew. Thus, piku’ach nefesh seems to be hutrah. However, those who maintain that it is merely dechuyah counter that ideally it would be preferable to request from a non-Jew to violate Shabbat instead of a Jew, but this behavior would lead people to mistakenly believe that Jews may not violate Shabbat even for piku’ach nefesh. Such a mistake would likely lead to deaths in situations where no non-Jew is available, as the Jews present would not realize that they should violate Shabbat in order to save the endangered person. Chazal therefore commanded Jews to violate Shabbat in all life-threatening emergencies, even when a non-Jew could save the life and spare the Jews from desecrating Shabbat.
In contrast to the last two sources, the Gemara elsewhere (Shabbat 128b) teaches that whenever possible, one should violate Shabbat in case of emergency by using a shinui (a deviation from the normal way of doing something, which is only rabbinically forbidden). This qualification implies that saving a life on Shabbat is dechuyah, so one must try to lower the prohibited act to a rabbinic prohibition.
Furthermore, the Gemara (Menachot 64a) presents a scenario where one has two options for how to act in a life-threatening situation, and he must choose the option that entails the least possible desecration of Shabbat. In the Gemara’s case, two dates have been prescribed as a remedy for a critically ill individual. These dates could be obtained either by cutting one date from each of two branches or by cutting one branch that holds three dates. The Gemara concludes that one should cut the lone branch containing three dates in order to reduce the number of prohibited acts of pruning (ketzirah). This source implies that even while aiding a dangerously ill person, we must limit Shabbat violations as much as possible.
The Rishonim
The Rosh (Yoma 8:14) cites a dispute that appears to highlight the difference between hutrah and dechuyah. In the case that arose, a dangerously ill person needed to eat meat on Shabbat, but no kosher meat was available. Either he could eat non-kosher meat, which happened to be readily available, or another Jew could violate the laws of Shabbat by slaughtering a kosher animal for him.
The Rosh quotes some Rishonim who deem it preferable to eat the non-kosher meat, for eating non-kosher meat entails a less severe prohibition (a regular Biblical negative commandment) than desecrating Shabbat (a capital offense). Their position implies that even when acting to save a life, the act of slaughtering is merely dechuyah, so its severity must be weighed against alternative methods of saving the sick individual.
However, the Maharam of Rothenburg (cited by the Rosh) writes that it is preferable to slaughter the animal for the ailing person on Shabbat. He compares slaughtering an animal for a sick person to cooking or lighting a fire on Yom Tov (festivals). Just as cooking and lighting a fire constitute melachot (prohibited activities on Shabbat and Yom Tov), yet the Torah completely permits them under most circumstances on Yom Tov - “like on a weekday” - so, too, the act of slaughtering constitutes a melachah but “any melachah done for a dangerously ill individual on Shabbat is as if it is being done during the week.” Interestingly, the Maharam does state that the prohibition of eating non-kosher meat is merely dechuyah in the case of piku’ach nefesh. Apparently, he views desecrating Shabbat as hutrah but eating prohibited foods as dechuyah. The Ran (Beitzah 9b in pages of Rif, s.v. Umiha), though, asserts that while cooking on Yom Tov is not a transgression at all, Shabbat or Yom Tov is merely dechuyah when a life must be saved.
The Rambam (Hilchot Shabbat 2:1-2) introduces the topic of life-threatening emergencies on Shabbat by positing that Shabbat is “dechuyah” in cases of danger to human life. On the other hand, he writes that Shabbat should be viewed “as a weekday” when treating the gravely ill. It seems that he intends one of these two expressions in a non-technical manner, but he does not clarify which one, so the Acharonim thus debate whether he considers Shabbat to be hutrah or dechuyah when saving a life.
Practical Halachic Ramifications
When only non-kosher meat is available on Shabbat, the Shulchan Aruch (Orach Chaim 328:14) rules that it is preferable to violate Shabbat and slaughter kosher meat. The Mishnah Berurah (328:39) adds that if the food is only rabbinically prohibited (such as certain foods cooked by a non-Jew - bishul akum) then one should eat it rather than violate Shabbat. Based on the Shulchan Aruch’s ruling, Rav Yehoshua Neuwirth (Shemirat Shabbat Kehilchatah 40:17) notes that one may similarly violate Shabbat in order to bring kosher food to a dangerously ill patient in a hospital that does not serve kosher food. However, he cites Rav Shlomo Zalman Auerbach’s opinion that if the hospital food has a reliable kashrut endorsement, which the patient normally chooses not to accept, then one may not violate Shabbat to bring him food that meets his personal halachic standards (ad loc. note 48).
Two more major issues arise in the Shulchan Aruch and its commentaries that may depend on this dispute. It should be noted, though, that each case also entails additional considerations. Thus, a poseik who fundamentally believes Shabbat to be dechuyah when a life is in danger might sometimes rule leniently in a manner that seems to indicate that it is hutrah, and vice versa. In fact, Rav Yitzchak Isaac Liebes (Halacha Urefu’ah 3:83) comments that it is quite difficult to find a practical case that truly depends on the question of hutrah versus dechuyah (also see Halichot Olam 4:157-158).
The Shulchan Aruch (Orach Chaim 328:12) writes that a Jewish adult should be the one to violate Shabbat in case of emergency, rather than a non-Jew or a minor. On the other hand, the Rama adds that if no delay would result from doing the action with a shinui, or asking a non-Jew to do it, then one should utilize either of these alternatives. The Taz (O.C. 328:5) rejects asking a non-Jew even when doing so requires no additional effort, but he does not challenge the Rama’s ruling regarding a shinui. The Mishnah Berurah (328:37) thus rules that a shinui should be used whenever possible, but one should not summon a non-Jew. However, Rav Moshe Feinstein (Orach Chaim 4:80) limits the Taz’s position to the precise act that will save a life (“inyan hahatzalah mamash”). Rav Moshe claims that even the Taz would encourage using a non-Jew for an act such as driving in an emergency (provided that this will not take any extra time), because the driving itself does not save the victim’s life.
Poskim also debate whether one may violate Shabbat in order to take care of the non-emergency needs of a dangerously ill person. The Shulchan Aruch seems to permit such acts, “We do for him what would be done for him on a weekday” (328:4). The Mishnah Berurah (Biur Halachah, 328 s.v. Kol) extensively reviews the approaches to this issue and notes that many Rishonim forbid violating Shabbat to take care of the non-emergency needs of a dangerously ill person. He concludes (328:14) by suggesting a compromise approach, recommending to refrain from Biblical prohibitions that do not directly contribute to saving his life, but allowing rabbinic prohibitions of this type. On the other hand, Rav Chaim Soloveitchik (quoted in Rav Yitzchak Ze’ev Soloveitchik’s commentary on Rambam, Hilchot Shevitat Asor 2:8) and Rav Ovadia Yosef (Teshuvot Yechaveh Daat 4:30) rule that one may even violate a Torah prohibition in order to care for the non-emergency needs of a dangerously ill person, in accordance with the Shulchan Aruch.
Many questionable situations today involve the use of electric appliances. Most authorities appear to agree with Rav Shlomo Zalman Auerbach’s assertion (Teshuvot Minchat Shlomo 1:11) that completing a circuit does not involve a Biblical prohibition (except in the case of an incandescent light bulb, or other appliance in which a filament is heated until it glows). According to this view, the Mishnah Berurah would thus agree that one may turn appliances on or off for the patient’s sake, even if they are not essential for saving his life. For example, Rav Hershel Schachter and Rav Mordechai Willig both told me that they believe one may turn on an air conditioner on Shabbat for a dangerously ill patient who feels unusually hot, although they ruled that it must be turned on in an unusual manner (shinui).
It is important to note that even the Mishnah Berurah (ibid.) warns against refraining from prohibited acts only if one is certain that the illness will not worsen as a result. He concludes with a citation from the Meiri, that if the action that violates Shabbat will strengthen the dangerously ill person, it should be performed.
Part III: Putting Oneself in Piku’ach Nefesh Situations
This section addresses steps that one should take in order to avoid a entering a life-threatening situation, which would necessitate desecrating Shabbat.
Background
The Gemara (Shabbat 19a) prohibits embarking on a boat that will travel through Shabbat if the trip begins within three days of Shabbat. However, the Gemara limits this restriction to trips taken for one’s own needs (devar hareshut), whereas one may set out for the sake of a mitzvah even in the latter half of a week. The Shulchan Aruch codifies the Gemara’s rulings (Orach Chaim 248:1). The Steipler Rav (Kehilot Yaakov, Shabbat 14) writes that the Gemara’s prohibition is merely a rabbinic enactment. The Shulchan Aruch Harav (248:7) appears to agree with his view, and Rav Moshe Feinstein (Teshuvot Igrot Moshe, Orach Chaim 1:127) asserts that most authorities indeed consider this prohibition to be rabbinic.
The Rishonim offer a number of explanations for the prohibition against beginning a trip too close to Shabbat. The Rif (Shabbat 7b, in pages of Rif) explains that people generally need three days until they adjust to sea travel. Hence, one who embarks within three days of Shabbat will probably experience an unpleasant Shabbat due to seasickness. The Rabbis thus prohibited such trips in order to ensure that people properly enjoy Shabbat (oneg Shabbat).
The Baal Hama’or (Shabbat 7a, in pages of Rif) claims that the three days immediately before Shabbat are considered “prior to Shabbat,” so one who embarks on a voyage within that period intentionally enters a situation that will require violating Shabbat in case of piku’ach nefesh (saving a life). The Shulchan Aruch (Orach Chaim 248:2 and 248:4) appears to codify both explanations.
Defining “For the Sake of a Mitzvah”
The Gemara permits embarking on a trip during the latter half of a week “for the sake of a mitzvah.” Rabbeinu Tam (cited approvingly by the Tur, O.C. 248) interprets this concept in an extraordinarily lenient manner. He argues that traveling for business purposes or to visit a friend is considered a mitzvah, while only a purely recreational trip would constitute a devar reshut (trip for one’s own needs). The Rama (248:4) accepts Rabbeinu Tam’s view.
Belated Circumcisions
When a brit milah (circumcision) takes place later than the eighth day of a boy’s life (such as a baby who could not tolerate a brit on the eighth day due to health reasons, or a non-Jew who wishes to convert), the Tashbetz (1:21) forbids performing it on a Thursday. He notes that on the third day after a brit (including the day of the brit), the baby is presumed to be in tremendous pain (see Bereishit 34:25 and Rashbam ad loc.). Thus, a baby who underwent a brit milah on Thursday may require medical treatment that will entail transgressing Shabbat (see Shabbat 86a). According to the Taz (Yoreh Deah 262:3), this problem exists when circumcising on Friday, too, as the baby suffers pain every day through the third day. The Shach (Yoreh Deah 266:18) notes that some Rishonim do indeed assume that the baby suffers through the third day, but the Tashbetz explicitly permits circumcising on Friday even when it is not the eighth day.
The Shach himself rejects even the Tashbetz’s position. He asserts that circumcising constitutes a mitzvah, so one may perform it even when it will later require violating Shabbat to save a life, just as one may embark on a trip for the sake of a mitzvah even during the latter half of the week. The Chacham Tzvi (Teshuvot Nosafot 14) and Mishnah Berurah (331:33) rule in accordance with the Shach. The Chacham Tzvi’s son, Rav Yaakov Emden (Sh’eilat Yaavetz 2:95), distinguishes between the late circumcision of a Jewish boy and the circumcision of a non-Jew who wishes to convert. A mitzvah already exists to circumcise the Jewish child, so Rav Emden agrees with the Shach that the brit should not be delayed. By contrast, the potential convert does not delay any mitzvah by pushing off his brit milah, for he is not bound by mitzvot prior to the conversion process.
Elective Surgery Prior to Shabbat
Rav J. David Bleich (Contemporary Halakhic Problems 2:19-20) cites the opinions of Rav Moshe Feinstein (Hapardes, Tamuz 5738) and the Lubavitcher Rebbe (Hapardes, Tishrei 5739), who both rule (based on the aforementioned sources) that one should avoid undergoing elective surgery during the three days before Shabbat. The Rif’s reason applies in this situation, since people generally experience considerable pain for at least several days following surgery. The Ba’al Hama’or’s concern also arises, as post-operative care frequently requires acts that violate Shabbat.
Rav Yehoshua Neuwirth (Shemirat Shabbat Kehilchatah 32:33) rules that one should attempt to schedule elective surgery on Sunday, Monday, or Tuesday provided that it is possible. However, he cites Rav Shlomo Zalman Auerbach (note 97) as ruling that if a more qualified surgeon is available during the second half of the week, then one may undergo the surgery on those days.
Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 12:43) adopts a different approach. In general, he believes that Halachah permits non-emergency surgery only if failure to perform it will eventually endanger the patient. Therefore, he argues that elective surgery can be defined as an action done for the sake of a mitzvah, since any elective surgery that serves only a frivolous purpose is forbidden. Moreover, Rav Waldenberg asserts that it is nearly impossible for a hospital to arrange for elective surgeries to take place only on Sundays, Mondays, and Tuesdays. Such a policy could lead to the lack of availability of hospital beds, as one cannot accurately predict the number of arrivals in an emergency room. Indeed, he notes that Shaarei Zedek Hospital in Jerusalem (which functions according to Halachah) allows surgery on Thursday and Friday even if it can be safely postponed until the following Sunday or Monday.
Conclusion
Generally speaking, one may not deliberately create a situation that will necessitate desecrating Shabbat in order to save a life. One may do so, however, for the sake of a mitzvah, so practical cases must be presented to a competent rabbi in order to determine whether they contain an element that might constitute a mitzvah for these purposes.
Part IV: Returning from an Emergency
In this chapter, we examine whether medical personnel may return home on Shabbat following their involvement in a life-saving mission. We open with the Talmudic background and then proceed to outline the three primary views regarding this issue, as presented by Rav Tzvi Pesach Frank, Rav Moshe Feinstein, and Rav Shlomo Zalman Auerbach.
Talmudic Background
The Mishnah in Eruvin (44b) states:
One who goes [2000 amot] outside one’s city [on Shabbat] for a permitted reason and is then informed that the issue has already been resolved may now go 2000 amot (3000-4000 feet) [like the techum of local residents]. All who go to rescue [Jews from their enemies on Shabbat] may return to their place [of origin].
Tosafot (s.v. Kol) note that the Rabbis sometimes permit the completion of an action on account of its beginning. For example, the Gemara (Beitzah 11b) delineates three cases in which the Rabbis permit the completion of an activity on Yom Tov (a Biblical festival), despite the fact that only its beginning serves a purpose on Yom Tov. The Rabbis decided that the early stages of these tasks meet important communal needs and forbidding their completion would inhibit people from ever beginning them. Similarly, Tosafot imply, if those who go to save others’ lives are forbidden to return home, they may hesitate to undertake the mission altogether, thus endangering lives. The Nishmat Avraham (Orach Chaim 329:7) cites the Magen Avraham (497:18), in a related context, as restricting the application of this Gemara to rabbinic enactments. However, the Chatam Sofer (Orach Chaim 203) and Rav Yaakov Emden (Sh’eilat Yaavetz 1:132 s.v. Udekashya) believe that the Rabbis may even permit the completion of a Biblical prohibition when they deem it necessary so as not to discourage people from performing certain mitzvot on Shabbat.
The Gemara (Eruvin 45a) questions how the above passage from the Mishnah could permit returning from a life-saving mission all the way to one’s place of origin. After all, the Mishnah indicates elsewhere (Rosh Hashanah 23b) that both a midwife who comes to aid an expectant mother and someone who comes to rescue people from an invading army or a disaster may walk 2000 amot from the town of their immediate destination. The Mishnah in Eruvin, by contrast, permits returning from saving a life without restricting the number of amot that one may travel after resolving the emergency. Hence, it appears to contradict the Mishnah in Rosh Hashanah’s limitaton of 2000 amot from the city limits.
The Gemara offers two resolutions to this contradiction. Rav (cited by Rav Yehudah) explains that the Mishnah in Eruvin does not intend to permit returning all the way home. Rather, it is specifically addressing “all who go to rescue” in battle, and it states that they may return, assuming that we know from Rosh Hashanah that soldiers may return only 2000 amot. The Mishnah in Eruvin repeated the soldiers’ permission to return in order to teach a different point: the soldiers may return (within 2000 amot) while carrying their weapons. Ordinarily, one may not carry in a public domain on Shabbat, but the Rabbis decreed that soldiers should return from battle with their weapons in light of a tragic incident. The Gemara recounts that when war was waged on Shabbat, the soldiers used to place their arms in the house nearest to the town wall after the hostilities ceased, in order to avoid carrying the weapons unnecessarily on Shabbat. One time, however, the enemy realized this practice (and the resultant vulnerability of the soldiers), so enemy troops attacked the soldiers as soon as they had all dropped off their weapons. The Jewish soldiers scampered into the house to retrieve their weapons, and more Jews killed one another in the resulting confusion than died in the actual battle. Therefore, the Rabbis decreed that soldiers may return 2000 amot with their weapons.
Rav Nachman bar Yitzchak, however, resolves the apparent contradiction between Mishnayot differently. He claims that the Mishnah in Rosh Hashanah addresses victorious battles, when Jewish soldiers have no need to return beyond 2000 cubits. The Mishnah in Eruvin, according to Rav Nachman bar Yitzchak, is speaking of a time where the Jews regrettably lose a battle and thus fear remaining outside their homes. In such situations, they may return home even beyond the 2000 amot with their arms. The Rosh (Eruvin 4:5) cites the Maharam of Rothenburg as accepting the opinions of both Rav and Rav Nachman bar Yitzchak. A Jewish soldier may thus return all the way home only if he is scared that the enemy might attack him should he stay within 2000 amot of the battlefield. When the Jews are stronger and this concern does not exist, he may go only 2000 amot from the battle site, in accordance with Rav Nachman bar Yitzchak’s opinion. When the Jew is returning, he may carry his weapons in accordance with the view of Rav.
The Rambam (Hilchot Shabbat 27:17) also writes that those who go to save endangered Jews may return with their weapons to their places of origin only if they fear that they may be attacked. He adds that other people who travel to save lives on Shabbat (such as going to save somebody from drowning) may similarly return all the way back to their homes (even outside of 2000 amot) if they fear attack. The Shulchan Aruch in Orach Chaim 407:3 appears to codify this ruling.
There is a problem, however, with the rulings of the Rambam and Shulchan Aruch. Earlier (Hilchot Shabbat 2:23), the Rambam writes that “Jews who go to war on Shabbat to aid their brethren are permitted to return to their place of origin carrying their weapons, so as not to cause danger in the future [by their hesitating to leave their homes again on Shabbat].” This passage does not limit the permission to return all the way home to cases where the Jews fear attack if they stay put. Similarly, the Shulchan Aruch (Orach Chaim 329:9) elsewhere asserts, “Those who go on a life-saving mission are permitted to return with their weapons to their place of origin,” without limiting this rule to situations in which security is unstable.
Twentieth Century Authorities
This seeming contradiction in both the Rambam and Shulchan Aruch has aroused much debate among poskim regarding how to rule in situations that commonly arise in modern times. It should be emphasized that one cannot simply sidestep the difficulty in their rulings by acting in accordance with the strictest possible interpretation. Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 1:8 p. 58) writes that it is not proper to be more stringent than the letter of the law in these matters, as this behavior may pressure others to act excessively stringently and result in tragedies similar to the disaster in the battle recorded by the Gemara. We will now examine the approaches of three major authorities to practical cases.
I. Rav Tzvi Pesach Frank - The Strict Approach
Rav Tzvi Pesach Frank (Teshuvot Har Tzvi, Orach Chaim 2:10) presents the most strict approach to this topic. A physician who resided in Pardes Hannah and made an emergency trip on Shabbat to Hadera asked Rav Frank if he were allowed to drive home and turn off his car’s engine on Shabbat.
Rav Frank ruled that the doctor may not drive home on Shabbat. In fact, he even forbade the doctor to turn off his engine at the site of the emergency (a rabbinic prohibition - kibui she’einah tzerichah legufah). Rav Frank ruled that the Rabbis permitted the rescuer to do only certain specific activities on Shabbat, but not to engage in all rabbinically prohibited activities. Thus, while the physician could walk within Hadera’s techum (Shabbat boundary), no other restricted activity was permissible. Considering that Arabs have lived on the outskirts of Hadera since well before Rav Frank wrote his responsum (in 1950), an Arab could have transported the doctor back to Pardes Chanah on a donkey or horse and buggy, about a half-hour trip. Rav Frank does not, however, suggest asking an Arab to transport the doctor home, apparently because he does not even permit asking non-Jews to perform prohibited activities on Shabbat in order to return the doctor home.
Rav Frank does not address the contradictory statements of both the Shulchan Aruch and Rambam. Presumably he accepts the places where they rule strictly (that one may return all the way home only in cases of danger from enemies) as authoritative and believes that they serve to qualify the sources that do not spell out any restrictions on the rescuer’s ability to return home.
II. Rav Moshe Feinstein - The Lenient Approach
Members of Hatzoloh (New York’s Jewish volunteer ambulance corps) asked Rav Moshe Feinstein if they could drive home after completing a rescue mission on Shabbat (Teshuvot Igrot Moshe, Orach Chaim 4:80). Rav Moshe presented an original interpretation of the Gemara, Tosafot, and Rambam mentioned above and concluded that one may even violate Biblical prohibitions, such as driving, when returning from a rescue mission.
Rav Moshe focuses on the aforementioned comments of Tosafot, who imply that the Mishnah permits rescuers to return from their missions on Shabbat in order to ensure that they will not hesitate to undertake future rescue missions on Shabbat. Rav Moshe explains that had it not been permitted for the rescuers to return home, they would have been reluctant to undertake the mission. In order to avoid future tragedies, where someone might die because nobody came to save him, the Rabbis permit rescuers to return home from their missions. Although we have already noted that the Gemara interprets the word “rescue” in the Mishnah as referring specifically to soldiers, Rav Moshe writes that the Mishnah’s reasoning (as indicated by Tosafot) applies to midwives and other rescue personnel, too. This interpretation is quite innovative, as the Mishnah states that the midwife and rescuer may walk within the local Shabbat boundary of the area in which the rescue took place.
Rav Moshe also offers a unique resolution to the seemingly contradictory statements of the Rambam (and, by extension, the Shulchan Aruch). At first, the Rambam (Hilchot Shabbat 2:23) writes that rescuers are permitted to return home with their weapons, while he later limits this permission to cases in which the rescuers fear for their safety in the place where they have arrived (Hilchot Shabbat 27:17). Rav Moshe suggests that the first source addresses a short-term rescue mission, when the rescuers expect to act for a relatively short period of time (such as ambulance squad members on a rescue call). It sounds from the Rambam’s description of the battle that non-Jews suddenly came and threatened a city. Rav Moshe claims that the Rambam means that the hostilities suddenly flared up, so the soldiers thought that they could quickly repel the enemy and return home the same Shabbat. The Rambam’s later ruling, however, addresses a long-term task, such as a war. In this regard, the Rambam uses the vaguer phrase, “saving Jewish lives from non-Jews," which Rav Moshe interprets as meaning a general war. People in such situations may not return all the way home from their victory on Shabbat because they did not specifically expect their mission to end on Shabbat. Short-term rescuers, however, may return home on Shabbat because they do not expect to be away for an extended period of time, so they might hesitate to embark on another mission if it will separate them from their families for the entire Shabbat or festival.
Based on his interpretation, Rav Moshe rules that Hatzoloh members may drive home from rescue missions, and I have heard that many Hatzoloh divisions follow his ruling in practice. It should be noted that there are other considerations that might permit the Hatzoloh workers to drive home on Shabbat and Yom Tov, as we shall later cite from Rav Yehoshua Neuwirth.
III. Rav Shlomo Zalman Auerbach - A Middle Approach
Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 1:8) presents a detailed critique of Rav Moshe’s responsum. Rav Shlomo Zalman writes that the Talmud, Rambam, and Shulchan Aruch clearly indicate that a rescuer may return home with his weapons for only one reason - actual fears for his safety in the place where he performed the rescue. Thus, a physician may drive home only when he made an emergency call to a dangerous place. Rav Shlomo Zalman remarks, however, that if the physician has treated a patient in the safety of a hospital on Shabbat, why should he not remain in a comfortable office for the duration of Shabbat?!
Moreover, Rav Shlomo Zalman asserts that the Gemara never raises the concern that someone will refuse to save lives due to his desire to spend Shabbat and Yom Tov with his family. He therefore rejects Rav Moshe’s interpretation of the Rambam and prefers the traditional explanation that the second passage in the Rambam qualifies the first. Accordingly, Rav Shlomo Zalman fundamentally adopts Rav Tzvi Pesach Frank’s approach, that the lone dispensation given the physician after a rescue mission is to walk within the techum of the place where he has arrived. Rav Shlomo Zalman writes, however, that since the Chatam Sofer (Choshen Mishpat 194), permits a doctor to ask a non-Jew to transport him home after a rescue mission, this may be done. Rav Shlomo Zalman cautions, though, that the Chatam Sofer’s ruling is itself based on an unconventional interpretation, so it may not be extended to permit doctors to themselves violate Biblical prohibitions in order to return home on Shabbat.
Other Authorities
Rav Yehoshua Neuwirth (Shemirat Shabbat Kehilchatah 40:66-69) rules in accordance with Rav Shlomo Zalman. However, he permits the physician to ride in a taxi driven by a non-Jew only within the techum of the emergency situation. Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 8:15:7:12) also accepts Rav Shlomo Zalman’s ruling provided that serious concern exists that the doctor will otherwise stop saving people on Shabbat.
Rav Neuwirth adds a critical provision for many practical situations. He rules that an ambulance driver may return to his place of origin if the area he serves does not have another ambulance to meet the emergency needs of its residents. Similarly, it seems that a doctor may drive home if “reasonable chance” exists that he will be summoned to another emergency during that Shabbat or Yom Tov and will not be able to respond appropriately without his car. However, Rav Yitzchak Isaac Liebes (Halachah Urefu’ah 3:73) notes that this leniency applies only when the ambulance driver or doctor will not be able to respond to a call quickly from his current location. On the other hand, if the ambulance brought a patient to a nearby hospital and could simply go from the hospital to any future emergency in the area, then the driver may not return it to its original station.
Rav Moshe Shternbuch (Teshuvot Vehanhagot 3:105) appears to fundamentally accept Rav Moshe Feinstein’s view (also see Techumin 23:91). Although he does not explain any of the sources in the manner that Rav Moshe suggested, Rav Shternbuch distinguishes between individuals who occasionally encounter a life-threatening situation and Hatzoloh members, who are constantly responsible for treating a large public. Ordinary citizens may not violate Biblical prohibitions on Shabbat in order to return from life-saving missions, as the aforementioned Gemara indicates, and we do not worry that sometime in the future they will hesitate to embark on another mission. The possibility, however, that medical personnel will not respond to future emergencies on Shabbat itself constitutes piku’ach nefesh, as someone in their society always needs medical attention. In practice, Rav Shternbuch urges Hatzoloh to use reliable non-Jewish medics or Jewish medics who do not mind remaining at their destination until the end of Shabbat (also see Teshuvot Sheivet Halevi 6:26). If neither of these options exists, though, then he essentially permits using Jews who will return home on Shabbat, although he adds that Halachic authorities familiar with each community should rule regarding its ambulance corps.
Conclusion
We have outlined the basic views regarding the important question of whether medical personnel may drive home from an emergency on Shabbat. Rav Moshe Feinstein permits Hatzoloh drivers to drive home on Shabbat, Rav Shlomo Zalman Auerbach permits a doctor to summon a non-Jewish taxi driver to take him home, while Rav Tzvi Pesach Frank does not even permit a doctor to ask a non-Jew to drive him home.
We have presented only the basic considerations concerning this issue; many other variables must be considered in practical cases. Thus, competent Halachic guidance must always be sought by medical professionals who face this problem.
Avinu Malkeinu Shelach Refuah Shleimah Lecholei Amecha!
May God heal His nation’s sick!
Squeezing Lemons on Shabbat
Halachic authorities have debated the permissibility of squeezing lemons into a liquid (such as tea) on Shabbat ever since the time of the Rishonim. This issue thus presents us with an interesting example of how the same point can repeatedly generate debate from one generation to the next.
Talmudic Background
Although the Gemara does not explicitly address squeezing lemons on Shabbat, several Talmudic passages discuss the general ban on squeezing fruits on Shabbat and thus shed light on our specific issue. The act of juicing a fruit constitutes mefareik (detaching, also called sechitah), a subcategory (toladah) of the general category (av melachah) of prohibited activity on Shabbat known as dash, threshing (see Rambam, Hilchot Shabbat 8:10 and 21:12). However, Rav (Shabbat 145a) rules, “The only fruits forbidden by the Torah to squeeze on Shabbat are olives and grapes,” and nearly all Rishonim accept his view. The Ran (Shabbat 61a in pages of the Rif) explains that olive oil and grape juice are inherently more important than other fruit juices.
The Gemara (Berachot 38a, as understood by Tosafot s.v. Hai) expresses a similar idea regarding the laws of berachot, commenting that only wine merits a unique blessing (hagafen) because other fruit juices are considered as ze’ah be’alma, “mere sweat.” The Rashba (Shabbat 145a) also argues that only the juices of olives and grapes are considered significant drinks. According to him, though, they do not possess any inherently superior qualities. He explains that we use grapes and olives primarily to produce wine and oil, whereas other fruits function mainly as food, even if they also provide us with juice. Regardless of the reason for the distinction, classical sources agree that squeezing fruits other than olives and grapes on Shabbat does not violate a Biblical prohibition.
Nevertheless, the Rabbis prohibited squeezing berries and pomegranates on Shabbat. The Gemara (Shabbat 144b) explains that people sometimes squeeze these fruits for their juice, so the Rabbis enacted a decree to treat their juice as a significant beverage, which one may not squeeze on Shabbat. The Rama (Orach Chaim 320:1) adds that this prohibition applies to any fruit in a place where some people squeeze it to drink its juice. On the other hand, the Gemara (Shabbat 144b) permits squeezing she’ar peirot, (“other” fruits, which are rarely squeezed for their juice) on Shabbat. Even if some atypical individuals do juice a particular fruit, we consider their practice eccentric and halachically insignificant (batla da’ato eitzel kol adam), hence permitting the fruit to be squeezed on Shabbat. Today, however, as Rav Yehoshua Neuwirth (Shemirat Shabbat Kehilchatah 5:2 note 2) points out, the modern food industry produces a vast array of fruit juices, so one seldom finds a fruit that may be squeezed on Shabbat.
Rishonim
Lemons differ from most other fruit, for hardly anyone drinks lemon juice without first diluting it and (in most cases) adding sugar. Consequently, the Rishonim offer multiple ways to view the halachic status of lemons. Some Rishonim focus on the fact that lemons are frequently squeezed, thus placing them in the Talmudic category of berries and pomegranates (rabbinically prohibited due to the popular practice of squeezing them). By contrast, many Rishonim note that people consume lemon juice only after adding other ingredients to it, perhaps rendering its juice halachically insignificant regarding the prohibition to juice fruits on Shabbat.
The Shibolei Haleket (90) cites Rabbeinu Yoshiah, who prohibits squeezing lemons on Shabbat. He equates lemons to pomegranates and berries because people routinely squeeze them for their juice. On the other hand, the Shibolei Haleket also cites Rabbeinu Yehudah ben Rabbeinu Binyamin as permitting one to squeeze lemons on Shabbat:
It is permitted to squeeze lemons for lemon juice onto a plate, even if there is no food presently on the plate, since one will later mix the juice with food, and it is understood... that lemons are squeezed only to add flavor to the food and not to be consumed [on their own] as a drink.
The Rosh (Teshuvot Harosh 22:2) adopts a lenient ruling based on similar logic: “Lemons are squeezed for the purpose of flavoring food and not for consumption as a beverage.” The Rosh and Rabbeinu Yehudah base their lenient rulings on the assumption that people do not drink lemon juice, so presumably even they would forbid juicing lemons in those locales where people drink lemonade. Accordingly, the Beit Yosef (Orach Chaim 320 s.v. Tutim) expresses bewilderment at the common practice of Egyptian Jews to squeeze lemons into sugary water on Shabbat, without any of their Rabbis questioning this practice (see Teshuvot Radbaz 1:10). Since people routinely drank lemonade in Egypt, squeezing lemons should have been prohibited in their locale.
The Beit Yosef offers two ways to defend this practice. First, he proposes that the prohibition to squeeze fruit applies only when people consume its juice independently, whereas people drink lemon juice only after adding other ingredients, such as sugar and water. Alternatively, he suggests that we forbid squeezing only types of fruit that people normally squeeze directly into empty containers. Accordingly, the Beit Yosef concludes that one may squeeze lemons, since their juice is almost always squeezed into containers that already have water in them. Hence, lemon juice by itself lacks the status of a significant drink.
The Shulchan Aruch and its Commentaries
Rav Yosef Karo (the author of both the Beit Yosef and the Shulchan Aruch) does not definitively indicate in the Beit Yosef whether he feels that lemons may be squeezed into another drink on Shabbat. In the Shulchan Aruch (Orach Chaim 320:6), however, he permits squeezing lemons on Shabbat in a succinct ruling. Although he does not explicitly write which of his two lenient considerations in the Beit Yosef lies behind his ruling in the Shulchan Aruch, Rav Hershel Schachter (personal communication) suggested that the highly terse manner in which Rav Karo writes that concern for sechitah does not apply to lemons indicates that he even permits squeezing the juice into an empty barrel. According to this inference, Rav Karo accepts the approach that the prohibition of mefareik does not apply at all to juices that are not consumed independently, rather than the approach that permits squeezing lemon juice only into non-empty containers. The Shulchan Aruch would thus not merely permit squeezing lemon juice directly into tea on Shabbat, but he would even permit squeezing lemon juice into an empty container.
Commentaries on the Shulchan Aruch, while they do fundamentally accept his lenient position regarding lemons, dispute the reason for it. The Magen Avraham (O.C. 320:8) appears to permit squeezing any fruit whose pure juice, without added ingredients, is not drunk (the first reason quoted above from the Beit Yosef). On the other hand, the Taz (O.C. 320:5), adopts the reasoning of Rabbeinu Yehudah ben Rabbeinu Binyamin (quoted above from Shibolei Haleket), who permits squeezing lemons only because lemon juice generally serves to flavor solid foods, rather than being consumed as a drink. This difference in reasoning affects our practice today, because we drink lemonade, so the Taz’s leniency might no longer apply, whereas we still do not drink pure lemon juice, so presumably the Magen Avraham’s lenient ruling would still stand.
Acharonim
This dispute continues even among the later authorities, including the Shulchan Aruch Harav, Chayei Adam, and Mishnah Berurah. The Shulchan Aruch Harav (320:10) appears to adopt the lenient view of the Magen Avraham. He notes, however, that there may be other reasons to be strict. The Aruch Hashulchan (O.C. 320:17) appears to wholeheartedly accept the most lenient opinion of the Shulchan Aruch and the Magen Avraham:
There is no concern [for mefareik] regarding lemons, because they are not squeezed in order for their juice to be drunk independently. Rather, [lemon juice] is squeezed for use as a condiment, or as an ingredient in a beverage... Therefore, lemons are entirely excluded from the prohibition of sechitah [mefareik].
The Chayei Adam (14:4), Mishnah Berurah (320:22), and Eglei Tal (Melechet Dash 16:30) adopt a compromise position. They agree with the aforementioned second reason of the Beit Yosef, that we do not consider lemon juice a significant drink as long as lemonade is usually made by squeezing the juice into a container that already has another liquid present. However, when the normal procedure for making lemonade is first to squeeze lemon juice into a container and then to add water, the status of lemon juice rises to the same significance as other fruit juices. Hence, squeezing lemons would constitute a rabbinic prohibition even if the juice then went directly into another liquid.
These three authorities all point out that the procedure for making lemonade in their time was to first squeeze lemon juice into empty containers and then to add water. Therefore, lemon juice was elevated to the status of a significant drink, rendering lemons’ juicing on Shabbat a rabbinic prohibition.
The Chayei Adam and Mishnah Berurah cite a simple way to squeeze lemons into tea without violating any prohibition, the Radbaz’s suggestion that one first squeeze the juice onto sugar (Teshuvot 1:10). As we mentioned earlier, there is no prohibition of squeezing any juice onto a solid. After the sugar absorbs the lemon juice, the mixture can be placed into the tea. Indeed, many observant homes today follow this practice.
However, while the Mishnah Berurah wholeheartedly endorses juicing lemons onto sugar, the Chayei Adam expresses some reservations about it. The Chazon Ish (56:7) firmly objects to it, arguing that people truly seek to squeeze lemon juice into their tea, so they share the same status as one who squeezes it directly into the tea (also see Livyat Chein pp. 83-84).
Contemporary Authorities
Contemporary authorities continue to disagree regarding which opinion to follow, and one can find people who follow all of the aforementioned views. Rav Yosef Dov Soloveitchik (reported by Rav Yosef Adler) and Rav Ovadia Yosef (Livyat Chein pp. 83-85) rule in accordance with the lenient view of the Shulchan Aruch, Magen Avraham, and Aruch Hashulchan that one may squeeze lemons directly into a liquid even in a place where people commonly squeeze lemon juice into empty containers. Rav Shimon Eider (Halachos of Shabbos p.101) and Rav Yehoshua Neuwirth (Shemirat Shabbat Kehilchatah 5:6) fundamentally adopt the Mishnah Berurah’s approach, to first squeeze the lemon juice onto sugar. Rav Zalman Nechemia Goldberg, however, told me that he believes one should follow the opinion of the Chazon Ish, who requires either juicing the lemon before Shabbat or placing it directly into the tea. One should consult a competent rabbi for guidance regarding which opinion to follow.
The State of Israel
Can We Offer Korbanot Today?
We, thank God, live in a time when many Jews have returned to Eretz Yisrael. In light of this situation, we hope to soon rebuild the Temple and offer korbanot (ritual sacrifices). In fact, one might question why we do not attempt to reinstate korbanot even now. This question first arose in the nineteenth century, when Rav Tzvi Hirsch Kalischer (in a book entitled Drishat Tzion) strongly urged the Jews of his time to pursue offering certain korbanot. The great authorities of that time, including Rav Akiva Eiger (in letters published in Drishat Tzion), Rav Yaakov Ettlinger (Teshuvot Binyan Tzion 1:1), Rav David Friedman (introduction to Sh’eilat David, Kuntres Drishat Tzion Viy’rushalayim), and Rav Moshe Sofer (Teshuvot Chatam Sofer, Yoreh Deah 236), debated his proposal. We review the basic issues that they discussed.
Rebuilding the Beit Hamikdash
Many sources indicate that we should not build the Beit Hamikdash (Holy Temple) today. The Sefer Hachinuch (95) writes that the mitzvah to build the Beit Hamikdash applies only when a majority of world Jewry lives in Israel (which seems not yet to have occurred as of this writing). Furthermore, Rashi and Tosafot (Sukkah 41a s.v. Iy Nami) cite a Midrash that states that the Third Temple will not be built by humans, but will miraculously descend from the heavens as a complete edifice. On the other hand, the Rambam (Hilchot Beit Habechirah 1:1,4) strongly implies that human hands will indeed build it. Elsewhere (Hilchot Melachim 11:1,4), he adds that when someone successfully builds the Beit Hamikdash, we will know that he is the Mashiach (Messiah). According to the Rambam, it follows that we need not wait for a miracle in order to commence working towards a Beit Hamikdash and korbanot.
Rav Hershel Schachter (Nefesh Harav pp. 96-97) cites Rav Yosef Dov Soloveitchik as stating that the Torah (Devarim 12:10-11 and Rashi s.v. V’haya Hamakom) clearly indicates that we will build the Beit Hamikdash only after the Jewish people are settled in Israel securely, without any threats from our neighbors. Since, unfortunately, Israel’s enemies still threaten her, we should not yet consider building the Mikdash. The proponents of building the Mikdash, however, counter that the Ramban (Bemidbar 16:21) writes that had the Jews sought to build the Beit Hamikdash during the period of the Judges, they could have done so despite the lack of security and stability during much of that period. In fact, the Ramban insists that the Jews were severely punished for their failure to seek the construction of the Beit Hamikdash.
We find in I Divrei Hayamim (28:19) that King David notes receiving direction from God for the construction of every part of the Beit Hamikdash. This verse might imply that Divine guidance is necessary in building the Beit Hamikdash, even when it is built by human hands. In fact, the Sifrei (commenting on Devarim 12:5) indicates that, although humans should initiate a search to locate the proper place for the Beit Hamikdash, we cannot know for sure that we have identified it correctly until a prophet tells us so (see Tzitz Eliezer 10:2:1 and 10:5). Consequently, one might argue that even according to the Rambam, we may not take concrete steps towards building the Beit Hamikdash without prophetic direction.
Offering Korbanot in a State of Impurity
Nowadays, we are all t’mei’ei meit (ritually impure from being in close proximity to dead bodies), so our impurity seemingly precludes our offering korbanot. Moreover, we cannot purify ourselves, for we lack the ashes of a parah adumah (red heifer), which remove tum’at meit. Accordingly, Rav Kalischer (Drishat Tzion, Ma’amar Ha’avodah 1:3) limited his proposal to the Korban Pesach and the communal offerings, which can sometimes be brought when the Kohanim are impure. The rule of tumah dechuyah betzibur, which teaches that the impurity of a majority of the Jewish People overrides the prohibition to offer sacrifices in a state of tum’at meit, permits impure Kohanim to offer these sacrifices even in a time, such as our own, when we cannot change our state of impurity.
Identifying Kohanim
Although we can bring certain korbanot without purifying ourselves, we must find and appoint Kohanim to perform this service. While any Jew may slaughter an animal sacrifice, only a Kohein may perform all subsequent actions (see Rashi on Vayikra 1:5). Before accepting a Kohein for Temple service, witnesses must testify that he descends from a Kohein who served in the Second Temple (see Rambam, Hilchot Isurei B’iah 20:2). After hearing their testimony, we can assume that a beit din authenticated the ancestor’s status before admitting him for Temple service. The Rambam (Hilchot Isurei Bi’ah 20:1) writes, however, that all of today’s Kohanim cannot prove their lineage, so they base their status purely on a family tradition (Kohanei chazakah). Although we generally treat Kohanei chazakah as full-fledged Kohanim, they cannot function as Kohanim for the purpose of offering korbanot. Hence, the absence of Kohanim with provable lineage (Kohanim meyuchasim) appears to preclude bringing korbanot until messianic times, when Kohanim will once again be able to attain the status of meyuchasim (see Rambam, Hilchot Melachim 11:3).
Rav Kalischer (Ma’amar Ha’avodah 1:4-5) asserts that we need to investigate a Kohein’s lineage only if we have reason to doubt its authenticity (rei’uta), but ordinarily even Kohanei chazakah may offer korbanot. Rav David Friedman rejects this view. On the other hand, the Chatam Sofer (Teshuvot, Yoreh Deah 236) claims that the lack of Kohanim meyuchasim should not stop us from offering korbanot. He explains that they would not use Kohanei chazakah in the Second Temple because the option of Kohanim meyuchasim existed, whereas today we have only Kohanei chazakah. Furthermore, even if some Kohanim turn out to have blemishes in their lineage, the Chatam Sofer argues that the blemishes would probably be minor enough that b’dieved (post facto) they would not invalidate the korbanot (see Rambam, Hilchot Bi’at Hamikdash 6:10).
Priestly Garments
Even if we could locate Kohanim with the necessary lineage, they still may not offer korbanot without wearing the bigdei kehunah, the priestly garments (Zevachim 15b). Several of these garments require wool dyed with techeilet (see Shemot Chapter 28), or else they are unacceptable. Techeilet, a shade of blue (see Menachot 43b), comes from a creature known as the chilazon, which we have not used for centuries (see Rambam’s commentary to the Mishnah, Menachot 4:1). Great efforts have been made in recent years, however, to identify the chilazon as the Murex Trunculus snail (see Techumin 9:423-446). Dye from this snail has now been made available for use in tzitzit and could theoretically be used to dye bigdei kehunah. Although some prominent rabbis (such as Rav Hershel Schachter) treat many of the arguments for the use of the Murex Trunculus seriously, only time will tell if the observant community will widely accept this dye as authentic techeilet.
Rav Kalischer (Drishat Tzion, Ma’amar Kadishin 3) argues that we could make bigdei kehunah without techeilet, just as, in the absence of techeilet, we wear tzitzit with white strings only (Menachot 38a). Most authorities reject his position, noting that the Tosefta (Menachot 6:6) explicitly states that bigdei kehunah cannot be made without techeilet. Moreover, the bigdei kehunah contain sha’atnez (a prohibited mixture of wool and linen; see Devarim 22:11). The positive commandment to make bigdei kehunah overrides this prohibition, but wearing bigdei kehunah that were made improperly would violate it.
Positioning the Mizbei’ach
The Mishnah (Eiduyot 8:6) records Rabbi Yehoshua’s testimony that we may offer korbanot even in the absence of a Beit Hamikdash, and the Rambam (Hilchot Beit Habechirah 6:15) codifies his opinion. However, although we may bring korbanot without the Beit Hamikdash, we still need a mizbei’ach (altar). The Rambam (Hilchot Beit Habechirah 2:1) writes that the mizbei’ach must be built in an extremely precise location on the Temple Mount. Due to the difficulty in properly identifying the mizbei’ach’s place, the people consulted prophets when they constructed it shortly before building the Second Temple (Zevachim 62a and Rambam, Hilchot Beit Habechirah 2:4). Accordingly, the Binyan Tzion (1:1) asserts that we need a prophet to pinpoint the location for the mizbei’ach. Nevertheless, Rav Kalischer (Ma’amar Kadishin, “Comments to the Av Beit Din of Griditz” 4) argues that we may simply follow the measurements found in Masechet Midot to position the mizbei’ach. He explains that a prophet was required during the building of the Second Temple only because they lacked a written record of the mizbei’ach’s precise location. On the other hand, the Mishnah in Middot stipulates exactly how far the mizbeiach should be from each wall. Similarly, Rav Avraham Yitzchak Kook (in the sources cited in Techumin 11:532-545) does not believe that a prophet is indispensable for renewing the korbanot. Nonetheless, Rav Moshe Shternbuch (Moadim Uzmanim 5:351) comments that we cannot easily implement Rav Kalischer’s suggestion, because great uncertainty surrounds the size of an amah (cubit), the unit of measurement used by the Mishnah (see Encyclopedia Talmudit 2:29).
Unresolved Disputes
Our inability to resolve disputes in many areas of Halachah might further hinder our ability to bring korbanot. For example, Rav Akiva Eiger asserts that we must consider the opinion of the Ra’avad (commenting on Hilchot Beit Habechirah 6:14), who believes that the Temple Mount lost its sanctity following the Second Temple’s destruction. According to this opinion, Rav Eiger argues that we cannot offer korbanot until the Mashiach arrives and once again sanctifies the Temple Mount. Although the Rambam (ibid.) claims that the Temple Mount remains holy, Rav Eiger suggests that we lack the ability to resolve this dispute. Rav Tzvi Pesach Frank (Mikdash Melech, Chapter 6) also indicates that this unresolved dispute prevents the offering of korbanot in our era.
Rav J. David Bleich and Rav Moshe Shternbuch (Moadim Uzmanim 5:351) add that we similarly do not know how to resolve halachic disputes concerning the Temple service, due to the lack of a tradition on how to conduct various rituals. Only the Mashiach’s arrival will enable us to renew this tradition. For example, Rav Bleich (Contemporary Halakhic Problems 1:266-267), citing Rav Meir Auerbach (Halevanon 1:8 p. 54), notes a disagreement between the Rambam and the Ra’avad (Hilchot Korban Pesach 10:11) about whether the gid hanasheh (sciatic nerve) of the sheep is roasted along with the rest of the Korban Pesach. One cannot simply be strict and follow both opinions, since if one were to follow the Ra’avad and remove the nerve, the animal would no longer be “whole” according to the Rambam, thus invalidating it. On the other hand, leaving the gid hanasheh in the animal invalidates it according to the Ra’avad. Rav Shternbuch lists a host of other gray issues regarding the priestly garments, such as how to design the avnet (belt), ketonet (tunic), and migba’at (hat) of the ordinary Kohein. We do not even know how to identify the color argaman, used in the making of the priestly garments.
It seems that the Rambam (Hilchot Melachim 11:1) may have been sensitive to difficulties such as these. He writes that the Mashiach will build the Beit Hamikdash and then korbanot will be offered. The Rambam may be telling us that only when the Mashiach comes will we be able to offer korbanot. Indeed, when I asked Rav Yosef Dov Soloveitchik what he felt about this subject, he responded immediately by quoting this passage from the Rambam. He told me (in 1984) that this passage shows that those who want to build the Third Temple today are incorrect.
On the other hand, Rav Kook (Otzarot Har’iyah 2:1251; cited in Techumin 11:544) writes that an eminent beit din, composed of the Jewish people’s leading scholars and recognized by all Jews, should convene to resolve all the aforementioned disputes. Rav Kook (Otzarot Har’iyah 2:929; cited in Techumin 11:532-533) insists that Chazal indicate in many places (most explicitly in the Yerushalmi, Maaser Sheini 5:2) that the Beit Hamikdash will be rebuilt before the arrival of the Mashiach.
However much poskim may currently debate the future sequence of these events, the Rambam (Hilchot Melachim 12:2), in his discussion of the ultimate redemption, has already noted that we can know how it will develop only once it actually unfolds:
Regarding all of these matters, no man will know how they will be until they happen, for they are cryptic in the prophets. Even the Rabbis have no concrete traditions regarding the issues, just what they can interpret from verses in the Bible. Accordingly, there are many disputes about them. Regardless, neither their sequential order nor their precise details comprise a fundamental part of the religion, so one should not delve into these aggadot or spend much time on these types of midrashot.
Other Impediments
Rav Yaakov Emden (Teshuvot Sh’eilat Ya’avetz 1:89) raises two additional objections to offering korbanot: our inability to collect shekalim (coins to fund the communal korbanot) from every Jew and our inability to organize ma’amadot (shifts) for each Jew to watch the korbanot. Rav Emden believes that the lack of a ma’amad invalidates the korban, so we cannot renew the korbanot until we know how to assign ma’amadot. Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 3:162) disputes both points. If we lack shekalim, he argues that we could simply acquire the communal korbanot on behalf of all of Jewry. Regarding ma’amadot, Rav Shlomo Zalman seeks to demonstrate that they are not indispensable.
The Presence of the Dome of the Rock
Rav Waldenberg (Tzitz Eliezer 10:1:44) cites that the Teshuvot Shaarei Tzedek (O.C. 96) opposes offering korbanot when the Dome of the Rock stands on the Temple Mount, viewing its presence as a disgrace to the korbanot. Rav Yosef Albom (Techumin 5:456-457) responds that the Moslems would deem the korbanot an affront to their religion, so offering the korbanot would not enhance the prestige of the Dome of the Rock.
At the time of this writing, the Israeli police do not permit Jews to pray on the Temple Mount, due to concern that violence would erupt. Surely violence would flare if Jews attempted to offer sacrifices or build the Beit Hamikdash there. Rav Moshe Shternbuch believes that the mitzvah to build the Beit Hamikdash does not apply when it endangers lives. Rav Itamar Warhaftig (Techumin 11:543 note 4) also points out that no explicit source ever teaches that we must risk our lives to build the Beit Hamikdash.
Conclusion
The sources that we have cited explore many aspects of this complex topic. Although some prominent rabbis have encouraged rebuilding the Beit Hamikdash and offering korbanot in our time, the overwhelming majority of rabbis remain opposed to the idea. Nevertheless, we all still yearn for the day when we may renew korbanot. We conclude with a quotation from Rav Kook (printed in Techumin 11:532 from Ginzei R’iyah p. 154):
The force that sustains the soul of the Jewish People is its incredible yearning to rebuild the Beit Hamikdash and to restore its glory to its perfect state. Only this yearning has uplifted the spirit of all the generations to know that there is a lofty purpose to their lives and their historical continuity. In this lofty point is hidden the lifeblood of the connection that the Jewish People have to Eretz Yisrael. All of the mitzvot that are contingent upon Eretz Yisrael, to whatever extent they apply, preserve the vitality of this fundamental dew of life.
Using Electricity from Israeli Power Plants on Shabbat
This chapter addresses the permissibility of using electricity generated by Israeli power plants on Shabbat. The Rabbis prohibited benefiting from forbidden activities that another Jew performs during Shabbat (see Shulchan Aruch, Orach Chaim 318). Theoretically, one should therefore not be allowed to use electricity that Jews generate in violation of Shabbat. In light of this problem, Rav Levi Yitzchak Halperin (Teshuvot Ma’aseh Chosheiv 1:31) and Rav Yisrael Rozen (Techumin 16:36-50), two experts in issues of electricity in Halachah, wrote essays about using electricity in Israel on Shabbat. Our chapter summarizes the main points of their essays, while adding the comments of other contemporary authorities.
Introduction
Rav Rozen opens his essay by asserting that the State of Israel cannot function properly without electricity. Losing power in hospitals, army bases and outposts, and police stations clearly endangers lives. Furthermore, Rav Rozen claims that even lighting streets properly can be a matter of life and death. If streets were not lit, people’s safety and security would be considerably reduced. Moreover, refrigeration in many homes preserves medicines for people whose lives depend on them. Rav Rozen thus writes, “Cases of safek piku’ach nefesh (possible threat to life) are widespread throughout Israel, yet it is impossible to separate and direct the electricity exclusively to those individuals and institutions that require it for piku’ach nefesh.”
The workers and directors of the electric company cannot control electricity demand. Even if they wished to limit the use of electricity on Shabbat to essential needs, thereby eliminating unnecessary work at the power plant, there is little chance that the greater public would cooperate. Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 2:15 and Tinyana 24) and Rav Shlomo Goren (Meishiv Milchamah 1:366-385) both therefore permit Israeli power plant workers to violate Shabbat in order to enable the plants to function properly.
Benefiting From Electricity Produced in Older Power Plants
Assuming that the power plant workers may maintain and repair what is needed on Shabbat, one could still question whether the general public may benefit for non-life-saving purposes from their work on Shabbat. Rav Shlomo Goren (ibid.) prohibits such benefit, noting that if one cooks for a dangerously ill person on Shabbat, the Gemara (Chulin 15b) rules that only the sick person may partake of the food during Shabbat (also see Teshuvot Aseih Lecha Rav 1:35). The Gemara explains that were others permitted to eat the food, then one might cook extra food (shema yarbeh), beyond what the sick individual actually needs, simply in order to feed healthy people. Similarly, if one were permitted to use the electricity for non-piku’ach nefesh needs on Shabbat, then the workers would violate Shabbat not only to produce the minimally required electricity for hospitals and security forces but also to produce electricity for ordinary use.
Rav Goren writes, though, that during the first few hours of Shabbat one may use electricity. He notes that power plants in his time required the addition of fuel and the cleaning of the burners approximately every eight hours, so Rav Goren rules that for the first few hours one may assume that no work has yet been done on Shabbat.
Rav Shlomo Zalman Auerbach (ibid.) takes a different approach. He writes that the situation regarding electricity production is far more analogous to another case that appears in the above Gemara. If one slaughters an animal to feed its meat to a dangerously ill person on Shabbat, the Gemara states that anyone may consume that meat, even during Shabbat. In this case, the Rabbis did not worry that permitting others to eat from the animal would entice someone to violate Shabbat unnecessarily in order to feed healthy people. Since one is unable to obtain even the smallest amount of meat without slaughtering an entire animal, that same amount of work provides enough meat to feed even people who are not dangerously ill, so no concern exists that anyone will desecrate Shabbat again for no valid reason.
Similarly, the Mishnah (Shabbat 122a) states that a Jew may not benefit from work done by a non-Jew on Shabbat on behalf of a Jew, yet he may use the light that a non-Jew kindled for his own benefit. The Gemara asserts that the candle provides the same amount of light whether one or one hundred people use it (ner le’echad ner leme’ah). Hence, as Rashi (s.v. Ner) explains, the non-Jew lit the candle for his own sake, so he did no extra work on behalf of the Jew, even if the Jew later benefits from the light. Rav Shlomo Zalman argues that the production of electricity is analogous to these cases, so one may benefit from the electricity of power plants in Israel:
Since it is impossible [for the operator] to generate electricity for the benefit of ill individuals unless he generates for non-piku’ach nefesh needs, too, it is analogous to when one slaughters for a very sick person, where even a healthy person is permitted to eat the meat... It seems reasonable to say that it does not matter if the power plant worker intended to produce electricity for ill people, or for the needs of everyone in the city, since it is impossible to produce electricity for only one individual without producing it for others.
Concern for Chilul Hashem
Despite Rav Shlomo Zalman’s persuasive argument, some people refuse to benefit from the electricity produced in Israel on Shabbat. Instead, these individuals own private generators which do not require maintenance over Shabbat. This strict practice stems from a celebrated comment of Rav Avraham Yeshayahu Karelitz, the Chazon Ish (Orach Chaim 38:4):
If the electricity was produced by a Jew who is not Shabbat-observant, it is forbidden to benefit from it. Even if it is a situation in which Halachah technically permits benefiting from the electricity produced, it is [still] forbidden since its use constitutes a chilul Hashem (desecration of God’s name)... because it is a public service, and the worker who [maintains the power plant] on Shabbat does so in a rebellious manner. One who benefits from the electricity produced in this manner indicates that his heart is not pained by the desecration of Shabbat [by other Jews]. May it be God’s will that everyone should speedily commit to a complete teshuvah (repentance)!
Indeed, Rav Chaim Kanievsky, the Chazon Ish’s nephew, strictly prohibits any benefit from the Israeli national power grid on Shabbat, including the use of electric lights to read from a siddur (prayerbook) in a synagogue that does not use a private generator on Shabbat.
Power Plants in Arab Neighborhoods
Rav Halperin was asked whether those who follow the stringent opinion could use electricity from plants where employees are predominantly Arab. For example, he notes that the power plant in East Jerusalem is maintained by Arab workers. Moreover, most of its consumers are also Arabs, thus mitigating the concern that non-observant Jewish consumers set automated procedures in motion by switching their appliances on and off on Shabbat. Nevertheless, Rav Halperin rejects distinguishing between the power station in East Jerusalem and Jewish-run plants elsewhere in Israel. He explains that all stations in Israel belong to one large network, so that an increase in demand in East Jerusalem affects power plants throughout the country, most of which serve Jewish consumers and have Jewish workers. As an indication of their interdependence, Rav Halperin cites a national power outage that once occurred due to a problem somewhere in the network, which also affected electricity in East Jerusalem. Thus, one who does not use power in Jewish neighborhoods in Israel may not use power from Arab-run plants either, provided that they belong to the national grid.
Today’s Power Plants
While older power plants required the manual addition of fuel every eight hours, today’s power plants are fully automated. This seemingly diminishes Rav Goren’s concern that a Jew actually produced the power on Shabbat. Rav Rozen explains that electricity is generated automatically, and as long as demand is relatively stable, the flow of fuel and the regulation of steam production are entirely automatic. Indeed, already in the late 1970's, Rav Ezra Basri (Teshuvot Sha’arei Ezra 1:22) writes:
My view, which had [anyway] inclined towards permitting [the use of electricity on Shabbat], was strengthened after a meeting that was arranged by the [Israeli] Chief Rabbinate in the Ashdod power plant, in which we went over the entire process of generating electricity in Israel.… It became clear to me that what the Acharonim have written in their books about this process does not correspond to the present-day reality, which has more reason to be lenient, since all the actions are automatic. No Jews work on the actual generating process, although there are Jews in an observation room, following the plant’s activities, so that if there is a malfunction, they repair it. Hence, there is no guarantee that Jews will work on the actual generating process.... The rest of Israel’s power plants operate in the same manner.
Rav Halperin, however, questions whether there is any fundamental difference between manual and automatic addition of fuel on Shabbat. Although no Jewish worker desecrates Shabbat to adjust the fuel supply in modern plants, the automatic adjustments are triggered by changes in the demand for electricity. Since most changes in the demand regrettably stem from non-observant Jews (rather than non-Jews or the timers of observant Jews) turning appliances on and off in violation of Shabbat, Rav Halperin argues that the automatic changes in the fuel supply have been caused by chilul (desecration of) Shabbat.
In fact, Rav Halperin suggests that changes in an automated plant might be more problematic than in a manual plant. In a manual plant, the workers who adjust the fuel supply must do so for hospitals and security forces, so these adjustments are done for the sake of piku’ach nefesh. By contrast, adjustments at an automated plant are triggered by non-observant Jews who switch appliances on and off on Shabbat. These Jews are violating Shabbat for their personal needs, as opposed to the purpose of piku’ach nefesh.
On the other hand, Rav Halperin suggests that automated power plants might indeed alleviate the problem of benefiting from the desecration of Shabbat, as any individual non-observant Jew’s behavior only indirectly contributes towards the eventual adjustments in the fuel supply. Thus, the automated adjustment might be considered a mere indirect result (grama) of chilul Shabbat. Additionally, even if most changes in the demand for electricity result from chilul Shabbat, the “straw that breaks the camel’s back” and sets the automated adjustments in motion could well be the activity of a non-Jew or a timer.
Even now that the generators operate automatically, workers do make telephone calls and record notations as part of regular plant operations, even on Shabbat. Rav Rozen raises the possibility that such actions might be considered piku’ach nefesh, as the power plant cannot run properly without vital communications and record keeping. Even if they do not constitute piku’ach nefesh, writes Rav Rozen, the prohibition of ma’aseh Shabbat (benefiting from another Jew’s violation of Shabbat) does not apply to these incidental activities. The power plant can, technically speaking, operate without such administrative work, so consumers do not directly benefit from it.
Maintenance activities that violate Shabbat similarly are not subject to the prohibition of benefiting from another Jew’s desecration of Shabbat. For example, Rav Rozen writes that workers unfortunately clean burners during every shift, in violation of Shabbat, and non-emergency repairs take place specifically on Shabbat in order to take advantage of the lowered demand for electricity. Nevertheless, these activities are not essential for a power plant’s functioning, so one is not directly benefiting from their performance.
When, God willing, the State of Israel will run according to Torah law, the administrative routine can be adjusted to limit activity on Shabbat to the power plant’s critical needs. For example, the burners can be cleaned immediately before and after Shabbat to compensate for not cleaning them during Shabbat. In the meantime, though, these activities do not affect the technical permissibility of benefiting from electricity produced in Israeli power plants. Of course, the Chazon Ish’s concern for chilul Hashem still applies, as the power plants do not yet obey the laws of Shabbat.
Changing Electricity Demand
Although modern power plants normally function automatically, a major change in demand for electricity still requires human intervention. If the demand increases or decreases by at least 10%, someone must flip electric switches or type commands into a computer. Such actions potentially involve many Biblically prohibited activities, such as hav’arah (lighting a fire), kibui (extinguishing a fire), bishul (cooking) and boneh (building), as well as rabbinically prohibited activities, such as molid (creating something new) and metaken mana (repairing vessels). As we have already discussed, workers may nonetheless perform these adjustments on Shabbat since power plants cannot serve piku’ach nefesh needs without them. Rav Rozen questions, though, whether consumers must do their part to avoid causing such changes in the demand and thereby forcing the workers to desecrate Shabbat.
Rav Rozen reports that the 10% changes in electric demand most often occur as a result of mass activation and deactivation of street lamps at dawn and dusk, as well as changes in large industrial power usage by large entities such as Israel’s national water carrier. While individual citizens do not control either of these activities, Rav Rozen writes that they could theoretically reduce such major changes in electricity demand by not having their automatic timers activate and deactivate their appliances on Shabbat. The obligation to reduce such activity, though, depends on whether one must take such precautions to avoid a situation where a Jew (in this case, a power plant worker) will need to violate Shabbat for the sake of piku’ach nefesh.
In the third chapter of our discussion of life-threatening emergencies on Shabbat we noted that even before Shabbat one may not deliberately create a situation of piku’ach nefesh that will require violating Shabbat, except for the sake of a mitzvah (see Shulchan Aruch, Orach Chaim 248). Accordingly, it should follow that one may not set a timer in Israel to operate on Shabbat, as altering the demand for electricity will force a power plant worker to violate Shabbat in order to prevent a power outage. Yet no major halachic authority has ever raised this objection to using timers in Israel on Shabbat, despite the fact that much has been written on the issue of using timers.
Rav Rozen points to three reasons why Jews need not avoid using timers in Israel on Shabbat. First, the Gemara teaches that one may embark on a boat trip prior to Shabbat for the purpose of fulfilling a mitzvah. The Shulchan Aruch (Orach Chaim 248:4) includes a trip to Israel in his list of permissible voyages, since the traveler is fulfilling the mitzvah of settling Israel (yishuv Eretz Yisrael). This mitzvah includes not only physically dwelling in the land, but developing its economy, too. Leaving lights turned on throughout Shabbat would greatly increase fuel consumption, which would increase Israel’s dependence on imported oil and thus adversely impact Israel’s economy. Just as one may deliberately enter before Shabbat a situation of piku’ach nefesh to move to Israel, Rav Rozen claims that one may also create before Shabbat a situation of piku’ach nefesh to protect the Israeli economy, even if this will require a power plant worker to violate Shabbat.
Aside from financial considerations, prohibiting timers would greatly inconvenience many people. Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 1:7 and 2:15:4; also see Tinyana 38) demonstrates that one is not obligated to endure great inconvenience in order to prevent others from violating Shabbat for piku’ach nefesh purposes. For example, healthy people at a hospital may eat hot food that was prepared prior to Shabbat, even if more food will consequently need to be heated later on Shabbat (either by them or by someone else) in order to feed dangerously ill patients. Likewise, an ill individual’s neighbor is not required to give him hot water in order to spare his family from needing to warm their own water for him. Rav Shlomo Zalman thus permits conducting oneself in a normal manner on Shabbat, even though this behavior might indirectly cause someone else to violate Shabbat for piku’ach nefesh reasons. Accordingly, Rav Rozen suggests that one may set a timer prior to Shabbat even if this behavior might cause a power plant worker to violate Shabbat for piku’ach nefesh reasons.
Rav Rozen also points out that the chance of a particular consumer’s timer being the “straw that breaks the camel’s back,” causing the 10% change in Israel’s electric demand, is quite unlikely. In fact, at the precise second that a timer shuts off one person’s appliance, it often happens elsewhere in the country that a more powerful appliance goes on, causing the power demand to rise, or vice versa. It is thus impossible to assert that any one person causes a change in power sharp enough that it would require workers to violate Shabbat. Rav Rozen asserts that each individual is accountable only for the changes caused by his own actions. If no person can prompt a significant enough change, the public as a whole need not worry about its collective effect on electricity demand.
Power Outages
If a blackout occurs on Shabbat, Rav Moshe Shternbuch (Teshuvot Vehanhagot 3:100) essentially permits using electricity on Shabbat after a Jew repairs it, in certain limited circumstances. He reasons, as we have cited from Rav Shlomo Zalman Auerbach, that maintaining electricity in the country constitutes piku’ach nefesh, and workers could not restore power to those who need it for piku’ach nefesh purposes without also restoring everyone’s power. In practice, Rav Shternbuch cautions that he has not thoroughly investigated whether repairing blackouts necessarily constitutes piku’ach nefesh and whether or not the workers perform any additional activities in order to return electricity to non-sick individuals. However, assuming that the repairs do constitute piku’ach nefesh and do not entail any extra violations on behalf of the healthy residents, Rav Shternbuch permits benefiting from the electricity on Shabbat.
Rav Ezra Basri (Teshuvot Sha’arei Ezra 1:22) writes, based on what he was told by experts, that repairing a blackout normally requires repairs to local wires, rather than major power plants. These repairs do not constitute piku’ach nefesh, as the lack of power for a small area generally poses no life-threatening dangers. Even if the area has a hospital that needs electricity in order to save lives, most hospitals own private generators that they employ during a blackout. Thus, with local hospitals already using their own generators, fixing the local wires serves only the residents’ non-emergency needs and consequently violates Shabbat. Rav Basri warns that in such situations, some foods on an electric hotplate might be cooked after the power returns, in which case one would not be allowed to eat them until after Shabbat.
Rav Yehoshua Neuwirth (Shemirat Shabbat Kehilchatah 1:32 note 174) similarly distinguishes between blackouts that require repairs at a power plant and those that are repaired locally in a small neighborhood. Since the power plant must be fixed for piku’ach nefesh purposes, one may benefit from the electricity once it has been restored. If a worker, however, violates Shabbat to restore power in a small neighborhood where the lack of electricity poses no danger, then Rav Neuwirth prohibits deriving benefit from the electric lights in one’s house, as well as eating some foods that were cooked on a hotplate after power returned. In such a situation, Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 2:15:7 and Tinyana 24) encourages observant Jews to turn off their electrical appliances in an unusual manner (shinui) before power returns, so that their appliances will not be responsible for increasing the chilul Shabbat of the Jew who restores the power.
Conclusion
Although Israel’s power plants regrettably do not run in accordance with Halachah, most authorities nevertheless permit benefiting from the electricity produced by them, especially in today’s age of automation. In addition, one need not avoid setting electric timers prior to Shabbat. Those who follow the Chazon Ish use a private generator for Shabbat because they consider it a chilul Hashem to benefit from the national power network. Rav Halperin concludes his essay by urging the observant community to express its dissatisfaction with the unnecessary desecration of Shabbat that often takes place in Israeli power plants. We should feel pained by the fact that a completely acceptable situation still does not exist and look forward to the day when every aspect of Israel will run according to Halachah.
Which Parts of Israel Warrant Tearing Keri'ah?
The Gemara (Mo’eid Katan 26a) teaches that one must tear keri’ah (rend one’s garment) upon seeing the ruins of three sites: Judean cities (Arei Yehudah), Jerusalem, and the Beit Hamikdash (Holy Temple). In this chapter, we review this issue’s classical sources and explore its application to each of the three locations in light of Israel’s miraculous military victories in 1948 and 1967.
Judean Cities – Modern Applications
The Tur (Orach Chaim 561) writes that one must rend his garments upon seeing “cities of Israel” in ruins. Rav Yosef Karo (Beit Yosef ad loc.) notes, however, that the Gemara mentions only cities in Judea, so the Tur’s reference to cities from anywhere in the Land of Israel is not specific.
Although this reason implies that we may save only a Jew’s life on Shabbat in order that he will observe future Shabbatot, the Biur Halachah (329 s.v. Ela) writes that in practice one should violate Shabbat even to save a Jew who clearly will not observe Shabbat in the future (see, also, Halichot Olam 4:226 and Teshuvot Minchat Shlomo 2:34:39 and 40). Indeed, Rav Karo rules in the Shulchan Aruch (O.C. 561:1) that the obligation applies exclusively to Judean cities. Rav Yechiel Michel Tukachinsky (Eretz Yisrael 22:1) believes that only ruined cities in Judea require keri’ah, but not areas where no Jewish city ever stood.
Rav Hershel Schachter (B’ikvei Hatzon p. 105) discusses whether the Halachah requires keri’ah only upon seeing Judean cities, as opposed to other Israeli cities, due to Judea’s political stature or her religious sanctity. The Bach (O.C. 561) writes that Judean cities are more “important” than the rest of Israel. He further comments that Judean cities are considered “destroyed” even when Jews continue to live in them, so long as non-Jews govern them. Rav Schachter thus interprets the special “importance” that the Bach attributes to Judean cities as their political significance. Since Judea includes Jerusalem, which served as the capital city during the First and Second Temple Periods, tearing upon seeing Judea’s ruins mourns the loss of Jewish political sovereignty.
Alternatively, one could view this keri’ah as grieving the desecration of a holy region. Although we generally do not view Judea as holier than the rest of Eretz Yisrael, the Gemara does single out Judea in one case. While discussing several laws of the Jewish calendar, the Gemara (Sanhedrin 11b) states that the Sanhedrin (Supreme Religious Court) must convene in Judea, as opposed to elsewhere in Israel, if it wishes to add a leap month to the Jewish year. The Gemara explains that Judea is “the residence of the Shechinah (Divine Presence).” Although no early sources explicitly link keri’ah to this law regarding leap years, the Levush (O.C. 561:1) does write that Judean cities warrant keri’ah “because they are near Jerusalem.” Rav Moshe Shapiro (Har Hakodesh, p. 1) suggests that the higher level of holiness of Judea stems from its physical proximity to the Holy City, the same holiness implied by the Talmudic passage in Sanhedrin regarding the calendar. Indeed, the Ramban, in a celebrated letter describing his travels in Eretz Yisrael (in the mid-thirteenth century), notes that “the greater the sanctity of a place, the more profound is its desolation; Jerusalem is more desolate than anywhere else, and Judea more so than the Galilee” (Kitvei Haramban 1:368).
Nowadays, Jews maintain sovereign control over much of Judea, but the Beit Hamikdash remains in ruins. Hence, Rav Schachter suggests that the obligation to tear keri’ah upon seeing Judea depends on the two possible understandings of its purpose. If the obligation to tear keri’ah for Judean cities flows from their religious sanctity, then Rav Schachter argues that we must continue tearing until the Beit Hamikdash is rebuilt. Since the Gemara explains that the religious sanctity derives from Judea being “the residence of the Shechinah,” we must continue to mourn Judea’s destruction until the Shechinah returns to its home on the Temple Mount.
According to the Bach, however, it follows that one should not tear upon seeing Judean cities today. As we have already mentioned, the Bach rules that one should even tear upon Judean cities inhabited by Jews so long as non-Jews maintain sovereign control over their location. Requiring keri’ah under such circumstances implies that sovereignty determines a city’s status, so Israeli control over Judean cities should thus negate the need for keri’ah. Based on this logic, Rav Moshe Feinstein (Teshuvot Igrot Moshe, O.C. 5:37:1) and Rav Shlomo Yosef Zevin (Hamo’adim Bahalachah 2:442) rule that we do not tear upon seeing Judean cities following their liberation by the Israeli army. Rav Schachter notes that the Halachah follows the Bach’s reasoning, rather than the approach that links keri’ah to Judea’s religious sanctity, as the Mishnah Berurah (O.C. 561:1) cites only the Bach’s opinion. Indeed, common practice among virtually all observant circles today is not to tear upon seeing Judean cities, such as Beersheba.
Rav Schachter remarks that some have criticized this approach, arguing that we must tear keri’ah until a Jewish government that operates completely in accordance with Halachah controls Judea. Rav Schachter (note 10) rejects their argument, noting that during the First Temple Period there was no obligation to tear when seeing Judean cities even though many of the Jewish kings worshiped idols. One could present a similar argument regarding the Second Temple Period, when many of the Hasmonean rulers practiced Sadduceean Judaism and persecuted Torah scholars, yet nobody tore keri’ah for the Judean cities under Hasmonean rule.
Judean Cities Controlled by the Palestinian Authority
In May 2000, I asked both Rav Hershel Schachter and Rav Yehuda Henkin whether one must tear keri’ah upon seeing Judean cities that are regrettably controlled by the Palestinian Authority, such as Bethlehem. Rav Schachter replied that one should tear upon these cities, as the existence of Jewish sovereignty over an area determines its status regarding keri’ah. Following Operation Defensive Shield (in 2002), when the Israeli army began a policy of re-entering Palestinian-controlled cities when necessary to fight terror, Rav Schachter told Rav Ezra Frazer that he believes the obligation to tear keri’ah remains in effect even while Israeli troops temporarily control a Judean city, for they do not actually govern it. Rav Henkin, though, argued that one should not tear keri’ah upon seeing these cities, as he deems it illogical to refrain from tearing keri’ah upon seeing Jerusalem while tearing when seeing a Judean city. One should consult a competent rabbi for guidance regarding this question.
It should be noted, though, that many visitors to Israel do not actually face the question of whether to tear a complete keri’ah upon seeing autonomous Palestinian-controlled cities. Often, tourists visit the Kotel (Western Wall) soon after arriving in Israel, while they only later travel near Judean cities. Tearing keri’ah upon seeing the Temple’s ruins, which they perform near the Kotel, absolves the obligation to tear a complete for Jerusalem or other Judean cities (Shulchan Aruch, O.C. 561:2-3). Similarly, Rav Yechiel Michel Tukachinsky (Eretz Yisrael 22:1), writing in the early 1950’s, records that in his time people would not tear keri’ah for Judean cities. In defense of this practice, he notes that it was possible to enter Jerusalem only from the west, so one would not encounter any other Judean cities before first seeing Jerusalem and tearing keri’ah there.
Hebron
Interestingly, the Chida (Birkei Yosef 561:1) notes that the common practice in his time was not to tear upon seeing the city of Hebron. He writes that some justified this custom on the grounds that Hebron served as an ir miklat (city of refuge for those who negligently caused others to die, see Bemidbar 32 and Yehoshua 20). The cities of refuge belonged to the tribe of Levi, so, despite Hebron’s location in Judea, it is technically a Levite city, rather than a Judean one. The Chida, though, cites and agrees with those who consider this technicality a “weak” basis to excuse people from tearing upon seeing Hebron. Rav Schachter (B’ikvei Hatzon pp. 105-106) explains that even if Hebron does not meet the technical definition of a Judean city, its geographic location nevertheless places it near the seat of ancient Jewish governments. Since we accept the Bach’s claim that keri’ah over Judean cities mourns the loss of Jewish political authority, any destroyed city in that region warrants keri’ah, regardless of whether the tribe of Judah technically owned it.
It should be noted that in the situation regarding which Rav Schachter issued his ruling, all of the traveling occurred within the techum (the area within which one is permitted to walk on Shabbat and Yom Tov). Rav Schachter rendered his decision only in regard to the questions of asking a non-Jew to drive a car and riding in the car on Shabbat and Yom Tov. For further discussion of this issue, see Rav Shlomo Wahrman’s letter to me that we have included in the introduction to this book.
Tearing upon Seeing Jerusalem
Halachic authorities debate whether Israel’s liberation of Jerusalem in 1967 exempts us from tearing keri’ah upon seeing the ancient city of Jerusalem. Many poskim believe that the obligation to tear keri’ah has ceased now that Jews maintain control over Jerusalem. They contend that the obligation to tear upon seeing Jerusalem derives from the loss of Jerusalem as the political capital of a Jewish government. Thus, now that a Jewish government once again controls Jerusalem, the obligation to tear keri’ah no longer applies.
Rav Schachter (B’ikvei Hatzon pp. 107-108) recounts that Rav Yosef Dov Soloveitchik disagreed, asserting that the obligation to tear upon seeing Jerusalem applies even after 1967. Rav Soloveitchik argues that the obligation to tear flows from Jerusalem’s status as an extension of the Beit HaMikdash, as the Mishnah (Keilim 1:6-9) implies when it delineates ten levels of holiness within Eretz Yisrael. As an expression of Jerusalem’s unique holiness, the Mishnah cites the law that one may not eat certain sacrifices and tithes (kodashim kalim and ma’aser sheini) outside the city limits. Rav Soloveitchik extrapolates from this Mishnah that Jerusalem functions as an extension of the Beit Hamikdash, where sacrifices are brought, and this role grants the city its sanctity. Another proof to this assertion is that the Tanach (Bible) sometimes refers to Jerusalem as “before Hashem,” and elsewhere the Tanach employs the same term for the Beit Hamikdash. Describing both places with identical terminology indicates that Jerusalem’s lofty status is intertwined with that of the Beit Hamikdash. Accordingly, Rav Soloveitchik believes that just as we must continue tearing keri’ah upon seeing the site of the Beit Hamikdash until its restoration, so too must we still tear upon seeing Jerusalem, Jewish sovereignty notwithstanding.
Poskim have not yet reached a consensus regarding whether keri’ah for Jerusalem stems from the city’s role as our political capital (hence eliminating the need for keri’ah nowadays) or its holiness and bond with the Beit Hamikdash. In practice, Rav Moshe Feinstein (Teshuvot Igrot Moshe, O.C. 4:70:11) rules not to tear upon seeing Jerusalem. Although Rav Soloveitchik and Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 1:73) disagree, Rav Schachter notes that common practice follows Rav Moshe’s position. Rav Schachter explains that when poskim dispute a law of mourning, we normally follow the lenient opinion (halachah k’divrei hameikel b’aveil).
As another practical approach to the dispute regarding keri’ah for Jerusalem, Rav Moshe Shternbuch (Mo’adim Uzmanim 5:348 note 2) suggests that when tearing keri’ah over the loss of the Beit Hamikdash one should also have Jerusalem’s destruction in mind. Moreover, he adds that tearing one’s clothes for no reason violates the Biblical prohibition against needless destruction (bal tashchit). Thus, acting stringently regarding the rabbinic obligation to tear upon seeing Jerusalem risks transgressing a Biblical prohibition.
Tearing Upon Seeing the Site of the Beit Hamikdash
Virtually all poskim require tearing keri’ah upon seeing the makom hamikdash even nowadays. Rav Schachter cites Rav Yosef Dov Soloveitchik as explaining that tearing at the makom hamikdash mourns the destruction of the Beit Hamikdash itself, as opposed to the loss of Jewish sovereignty over the area. Thus, until we rebuild the Beit Hamikdash, the obligation to tear keri’ah at its location remains binding. Indeed, common practice among virtually all observant circles follows his view.
Rav Yechiel Michel Tukachinsky (Eretz Yisrael 22:7) writes that at first glance it would appear that the obligation to tear one’s clothes over the makom hamikdash should commence only if one sees the actual ground of the Temple Courtyard ruins. He notes, however, that the Bach (O.C. 561) and the Pe’at Hashulchan (3:2) record the practice to tear as soon as one sees the Dome of the Rock. Rav Tukachinsky explains that although the Dome of the Rock is not technically a part of the Temple’s ruins, seeing a mosque on the Temple Mount nonetheless warrants keri’ah because it powerfully conveys the lack of a Jewish Temple on that location. Rav Moshe Shternbuch (Teshuvot Vehanhagot 1:331) also notes that in fact people generally tear keri’ah upon seeing the Dome of the Rock even if they do not see the actual ground upon which the Beit Hamikdash once stood. Although Rav Shternbuch comments that this practice has an acceptable halachic basis, he adds that he personally goes to a building that overlooks the Temple Mount in order to see the precise spot of the churban, and only then does he tear his clothes (also see Mo’adim Uzmanim 7:211).
Conclusion
The obligation to tear keri’ah over Judean cities, Jerusalem, and the site of the Beit Hamikdash reflects our deep religious and nationalistic connections to Eretz Yisrael throughout Jewish history. It also expresses our longing for a time when the Beit Hamikdash will be rebuilt and these laws will no longer apply.
Family Matters
Revealing Flaws of a Potential Marriage Partner
The desire to protect friends and relatives often poses a major dilemma in the area of shidduchim (introductions for the purpose of marriage). People seek to ensure that their loved ones do not err by marrying spouses with objectionable personality traits or other severe flaws. On the other hand, one must ensure that this noble goal does not lead to wrongfully damaging the reputations of prospective marriage partners. In this chapter, we explore when Halachah permits and even obligates someone to reveal a significant flaw, versus when one must remain silent.
One’s Own Flaws
Rabbeinu Yehudah Hachasid (Sefer Hachasidim 507, in some editions 1163) writes that one should not conceal flaws from a potential marriage partner, lest the couple live a miserable life together. In fact, Rav Moshe Feinstein writes that just as the Torah (Vayikra 25:14) forbids misrepresenting merchandise in order to deceive consumers (ona’at mamon), surely one may not conceal information in a manner that misleads a potential marriage partner. (Even Ha’ezer 4:73:2). Also see Teshuvot Divrei Malkiel (3:90) and Kehilot Yaakov (Yevamot 38).
Moreover, if someone mistakenly marries without knowing that his/her spouse has an extremely severe flaw at the time of the wedding, the marriage’s validity can be called into question. One need not reveal every minor flaw, however, but only those that will likely undermine the marriage’s happiness.
Illness
Rabbeinu Yehudah Hachasid obligates people to disclose their illnesses when “if the prospective mates knew of the illness, they would not consent to marry.” Rav Moshe Shternbuch (Teshuvot Vehanhagot 1:879) similarly requires the revelation of illnesses that might negatively impact the marriage, but not of illnesses that do not affect married life. Poskim discuss many individual cases in this area, because the precise medical facts of each disease must be analyzed in order to determine how it might impact married life. Rav Shternbuch thus urges presenting every practical situation to a poseik who will consult skilled doctors in order to obtain current information about the illness’s impact and determine accordingly whether to notify the prospective marriage partner. Although any practical question must be asked to a duly qualified Rav, we will present a few examples from the responsa literature in order to offer the reader a sense of how poskim handle these cases.
Rav Moshe Feinstein (Teshuvot Igrot Moshe, Even Ha’ezer 4:73:2) writes that one who suffers from Marfan’s syndrome must notify any potential mate of this flaw. Rav Shternbuch, after establishing that in theory one must reveal only illnesses that affect married life, encourages disclosing that one suffers from diseases that demand an unusual diet, such as diabetes or an ulcer, because their dietary restrictions can impact the couple’s life together. On the other hand, if someone once suffered from an emotional problem but has recovered fully enough that he no longer needs medication, then Rav Shternbuch does not obligate him to reveal this problem from his past, provided that medical experts are of the opinion that his problem will not return.
Rav Malkiel Tannenbaum (Teshuvot Divrei Malkiel 3:90) discusses whether a man must reveal to prospective brides that during childhood he suffered a severe injury to his male organs. Rav Tannenbaum initially rules that he must divulge this concern, as many women do not want to marry a man who might never be able to reproduce. Rav Tannenbaum acknowledges that revealing this information will, regrettably, likely prevent the man (who was also destitute) from ever finding a wife. As a possible solution, Rav Tannenbaum suggests that a doctor examine the man carefully. Should the doctor conclude that the man will be able to reproduce, then he may conceal his defect. Rav Tannenbaum reasons that most people trust doctors’ judgment on medical matters. Accordingly, the man may assume that most women would not object to marrying him once a doctor confirmed his ability to procreate, and therefore he need not inform them of his injury. In practice, though, Rav Tannenbaum adds that it is proper nonetheless to tell his future bride about his injury.
Someone asked Rav Shmuel Wosner (Teshuvot Sheivet Halevi 6:205) if a woman must inform her prospective husband that she has temporarily lost all her hair due to an illness. Although the hair was expected to grow back three or four years later, Rav Wosner leans towards requiring her to reveal her current ailment because most men would not consent to marry a woman while she is still bald. In practice, Rav Wosner recommends that she begin dating while wearing a natural-looking wig. Later, when a man has gotten to know her and developed a serious interest in her, she should explain to him that her natural hair will not return for a few years.
Questions of Lineage
The Gemara (Yevamot 45a) recounts that Rav Yehudah counseled the son of a Jewish woman and a non-Jewish man, who was experiencing difficulty in finding a wife, to move somewhere far away and conceal his lineage so that a woman from there would consent to marry him. The Gemara clearly assumes that many people hesitate to marry someone with a non-Jewish father (hence the motivation to conceal this fact), yet it implies that the child of a non-Jewish father may nevertheless conceal his lineage from a potential mate. Rav Meir Arik (Teshuvot Imrei Yosher 2:114:8) and Rav Eliezer Waldenberg (in comments printed in Nishmat Avraham, E.H. p. 252) assert that in practice one must reveal if one’s father is not Jewish. They interpret the Gemara’s story about Rav Yehudah as an exceptional case, because they refuse to accept that the Halachah sanctions deliberately concealing information that would clearly affect whether a woman would marry this man. Rav Waldenberg also requires one to reveal if either parent is a convert.
The Steipler Rav (Kehilot Yaakov, Yevamot 38), though, seemingly disagrees with them and interprets the Gemara as normative. He argues that although most people initially hesitate to marry someone with a non-Jewish father, they would not go so far as to seek a divorce were they to find out post facto that their spouse’s lineage possessed this blemish. The Steipler Rav suggests that deceiving people in a manner that they would forgive post facto only violates a rabbinic prohibition, so the Gemara apparently waives this prohibition for the sake of people who otherwise could not find mates.
Halachically Questionable Lineage
While the child of a non-Jewish father possesses merely undesirable lineage, sometimes one’s lineage poses a serious problem of actual illegitimacy. For example, the child of a woman’s second marriage faces concern for mamzeirut (illegitimacy) if his or her mother remarried without receiving a valid get (divorce document) from her first husband. Should the child indeed be a mamzeir, he or she may not marry anyone other than a fellow mamzeir or a convert. In many contemporary situations, though, poskim can permit the child to nevertheless marry because they determine that the mother’s first wedding did not meet halachic standards. In such situations, where one may marry only due to a lenient ruling of an eminent halachic authority, Rav Malkiel Tannenbaum (Teshuvot Divrei Malkiel 3:90) and Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 7:48:5:15-17) require divulging the full background to any prospective mate. Since questions of mamzeirut often depend on disputed points in Halachah, a prospective spouse could reasonably hesitate to rely upon the same view as the poseik who ruled leniently in a particular case. Hence, one may not conceal such issues from a prospective mate.
Similarly, Rav Waldenberg notes that women sometimes receive permission from a prominent rabbi to temporarily employ contraceptives in order to protect their health, but this area has generated much debate among poskim. Consequently, Rav Waldenberg claims that a woman must warn her prospective groom if a particular halachic authority permitted her to employ contraceptives at the start of her marriage, in case the man feels uncomfortable entering a marriage where he will need to follow this rabbi’s lenient ruling.
Lost Virginity
Rav Moshe Feinstein (Teshuvot Igrot Moshe, Orach Chaim 4:118) writes that a woman must reveal to any prospective husband that she has lost her virginity. Rav Yitzchak Yaakov Weisz (Teshuvot Minchat Yitzchak 3:116) also adopts this view, explaining that virgins and non-virgins are entitled to different sums of money in their ketubot (marriage contract), so a woman who conceals her past misdeeds thus tricks her groom into writing her a virgin’s ketubah. I have heard from Rav Mordechai Willig, though, that he does not obligate men or women who grew up in non-observant homes to reveal their past sexual indiscretions to prospective mates. Rav Willig reasons that nowadays the general society unfortunately does not expect people to remain abstinent until marriage. Therefore, anyone who dates someone from a non-observant home has no right to assume that his or her dating partner is a virgin.
Revealing the Flaws of Others – Concern for Lashon Hara
Until now, we have addressed an individual’s own obligation to divulge personal information to his or her prospective mate. This sensitive topic becomes even more complex when others must decide whether to reveal another person’s flaw to his or her potential mate. An outsider must weigh the welfare of the unsuspecting dating partner against the sin of lashon hara (harmful speech).
The Rambam (Hilchot De’ot 7:1-6), outlines three general categories of prohibited speech: rechilut (telling stories about another even if they are true and contain nothing negative), lashon hara (spreading true negative facts about others), and motzi shem ra (spreading false negative information). In order to emphasize the severity of gossiping about others, he writes, “It is a severe sin and causes the destruction of many Jewish lives.” He proceeds to cite a passage from the Gemara in Arachin (16b) that equates one who speaks lashon hara with one who rejects the existence of God. The Gemara further compares lashon hara to murder, adultery, and idolatry combined.
Elsewhere, the Gemara indicates just how restrictive the prohibition of lashon hara can be (Yoma 4b). It rules that if someone shares information with a friend, the friend may not repeat it without receiving express permission to do so. As a source for this principle, the Gemara refers to the manner in which God spoke to Moshe in the opening verse of Vayikra, “Hashem spoke to [Moshe] from the Tent of Meeting to say (leimor) [to the children of Israel].” We see that God explicitly authorized Moshe to repeat what He had told him, implying that, absent this authorization, Moshe would have been forbidden to tell the nation what he heard from Hashem.
Moreover, the Gemara (Sanhedrin 31a) teaches that a judge who informs a litigant that he voted against the majority opinion when a beit din issues a split decision violates the prohibition of rechilut. The Gemara adds that Rabbi Ami once expelled a student from the beit midrash (religious study hall) for revealing a secret twenty-two years after it occurred.
Unfairly Harming a Shidduch
In some cases, revealing a flaw to someone’s prospective spouse or parents-in-law clearly constitutes lashon hara. Dayan Weisz (Teshuvot Minchat Yitzchak 6:139) forbids someone from telling his friend that a prospective groom for the friend’s daughter committed a grave sin in his youth. Dayan Weisz explains that, as far as was known, the young man had never repeated his sin and instead devoted his time to Torah study, so his past sin did not reflect traits or habits that remained with him and might negatively impact his marriage.
Certainly, one may not exaggerate minor flaws in a manner that unnecessarily harms a shidduch. The Chafetz Chaim (in a section added to Hilchot Isurei Rechilut 9) decries the fact that people often tell a young woman’s family about her prospective groom’s personality in a manner that depicts him in an unfairly negative light. Specifically, the Chafetz Chaim comments that people routinely describe young men as simpletons or fools simply because they lack the sharpness to outsmart sly individuals. Such a portrayal sometimes causes a young woman’s family to reject a particular candidate even though his “foolishness” reflects admirable honesty, and he might in fact possess other intellectual gifts. Those who talk about such a person as a fool thus focus on an extremely minor shortcoming, which should not affect the shidduch, and exaggerate it to the point where it prevents a potentially wonderful husband from finding a wife.
“Do Not Stand Idly By”
Despite the severity of speaking lashon hara, at times one is permitted or even obligated to reveal others’ flaws. The Rambam (Hilchot Rotzeiach 1:14) writes:
Whoever can save another individual [from an assailant] and fails to do so violates the Torah’s prohibition, “Do not stand idly by while your brother’s blood is being shed” (“Lo ta’amod al dam rei’echa;” Vayikra 19:16). Similarly, if one sees someone drowning in the sea or sees that robbers are attacking him or a wild animal is pouncing on him, and one can save him... but fails to do so... one violates the prohibition of lo ta’amod al dam rei’echa.
The Shulchan Aruch (Choshen Mishpat 426:1) cites this passage from the Rambam almost verbatim. Consequently, as we shall discuss, one must balance the prohibitions of rechilut and standing by idly, by not revealing insignificant flaws while also not remaining silent about major flaws. The Netziv (Ha’ameik Davar, Vayikra 19:16) explains that God placed the prohibitions of rechilut and standing by idly in the same verse in order to clarify when one should not speak rechilut. Their juxtaposition indicates that despite the prohibition to gossip, one nevertheless may not remain silent about information that can save another person from danger.
The Chafetz Chaim’s Guidelines for Shidduchim
In accordance with the above passages from the Rambam and Shulchan Aruch, the Chafetz Chaim (ibid.) rules that one must reveal a serious flaw to the flawed individual’s prospective spouse. However, he cautions that one must first determine that the flaw in question warrants revelation (ibid., Be’er Mayim Chaim 8). In a number of places, the Chafetz Chaim lists several criteria for judging whether one may divulge information. Based on his criteria, one should examine six points before revealing any questionable information:
1) Is one positive that the information is completely true?
2) Is the flaw so significant that the parties involved must hear about it?
3) Does one intend to reveal the information purely to help those who must hear about it, or do malicious or vengeful desires taint one’s motivation?
4) Will the information likely affect those who hear it? If they will most probably ignore the news anyway, then one may not reveal it.
5) Is one presenting the information accurately? One may not exaggerate the information at all.
6) Does any alternative exist to achieve the desired goal without revealing the information?
Examples of Gray Areas
Due to the distinction between divulging one’s own personal information and divulging information about others, many poskim, when facing several of the same cases that we discussed earlier in the context of revealing one’s own flaws, issued far more restrictive rulings regarding what others may reveal. For example, we have already mentioned that Dayan Weisz requires a woman to reveal if she has lost her virginity, yet he rules that friends whom she told of her misdeed should not divulge it to her groom themselves.
Similarly, we have already noted that Rav Moshe Shternbuch requires revealing certain illnesses to one’s prospective spouse. Within those cases, however, he distinguishes between situations where only the bride and groom must reveal their illness and situations where an illness is so severe that anyone who knows of it must inform the affected person’s dating partner. In certain situations, Rav Shternbuch does not require others to contact the dating partner themselves, but he permits them to answer an inquiry from the dating partner honestly.
We have already cited Rav Meir Arik and Rav Eliezer Waldenberg’s view that one may not conceal one’s blemished lineage. We have also mentioned Rav Malkiel Tannenbaum and Rav Waldenberg’s view that one must inform any potential spouse if one may marry only due to the lenient ruling of a major halachic authority. A rabbi asked Rav Yaakov Breisch (Teshuvot Chelkat Ya’akov 3:6-7) about a young woman whose father was unknown, thus presenting both of these concerns. The father might not have been Jewish, blemishing her lineage. Alternatively, he may have been Jewish, in which case the woman might be a mamzeret.
After examining the precise details of her background and determining that she is not a mamzeret, Rav Breisch notes that nevertheless the woman’s lineage bears three blemishes: her father might not be Jewish, she was born out of wedlock, and her mother conceived her as a nidah (during the period of her menstrual cycle when she was prohibited to have relations). Although these defects do not prohibit her from marrying a Jew, they could dissuade men in many traditional Jewish communities from marrying her. Rav Breisch concludes that the rabbi may not explicitly lie to prospective spouses about such blemishes, but he may tell them that her lineage bears no stigmas that would render her illegitimate, without adding that it does have several more minor blemishes.
When One Must Reveal Others’ Flaws
Of course, some defects are so severe that even an outsider must divulge them to the affected person’s dating partner, even if the partner does not inquire about them. For example, Rav Shlomo Zalman Auerbach (cited in Nishmat Avraham vol. 4 p. 182) ruled in 1989 that a doctor must inform someone if his or her spouse has been diagnosed with AIDS. Dr. Avraham S. Avraham presented Rav Shlomo Zalman with the medical facts of that time, according to which a 66% chance existed that that the spouse would get infected within five years, and a 100% chance existed that the disease would eventually kill whomever it infected. Rav Shlomo Zalman thus concluded that informing someone that his or her spouse has AIDS was essential for saving that person’s life from certain danger.
In another tragic example, an observant doctor asked Rav Yaakov Breisch whether he should inform a young woman that her groom, a twenty-year-old man, was suffering from cancer and most likely would not live more than a year or two. Rav Breisch (Teshuvot Chelkat Ya’akov 3:136) ruled that the doctor must inform the bride of her groom’s illness, adding that failure to inform her would violate both lo ta’amod al dam rei’echa and placing an obstacle in front of a blind person (see Vayikra 19:14).
In yet another unfortunate case, an observant doctor asked Rav Eliezer Waldenberg whether he must inform a young man that his fiancee, a patient of the doctor, lacked natural reproductive organs and would thus never conceive a child. Rav Waldenberg (Teshuvot Tzitz Eliezer 16:4) responded that the doctor must convey this information to the groom. Although all doctors take the Hippocratic Oath, thereby swearing to never reveal confidential information about their patients, Rav Waldenberg insists that this oath cannot override Halachah.
Acting With Prudent Judgment
The doctors who consulted Rav Breisch and Rav Waldenberg had patients with extremely serious flaws, whose concealment could not be tolerated. Everyone, however, has some flaws, so one may not rashly decide to reveal another person’s flaws to his or her dating partner. Moreover, the impact on marriage of many flaws cannot be gauged easily, and sometimes it is not even clear whether someone’s inappropriate conduct necessarily reflects a true character flaw. For example, in my experience as a mesadeir gittin (divorce officiant), I often meet people at a stressful time in their lives. If someone behaves inappropriately during divorce proceedings, it is difficult to assess whether this behavior reflects deep character flaws that will destroy the person’s next marriage, or whether the poor conduct merely resulted from the excessive stress that the divorce placed upon an otherwise decent individual. One must present these delicate cases to a competent and experienced Rav for adjudication, as a mistake in either direction can lead to devastating consequences.
Even when a flaw must be revealed, one must not hasten to reveal it before carefully considering how to present it in the least harmful manner. After ruling that a doctor must inform a groom that his bride lacks reproductive organs, Rav Waldenberg advises the doctor to first inform the woman that the Torah obligates her to reveal her flaw to her potential mate. Only if she fails to inform the groom herself should the doctor divulge the painful facts to him. It is hoped that this approach spares the woman from the humiliation that would likely result were the doctor to reveal this highly sensitive information directly to her groom. A Rav who is skilled in this area can devise similar strategies to help cushion the blow when revealing a flaw. In addition, Rav Gidon Weitzman has informed me that Machon Puah, a Jerusalem-based institute for issues of fertility and Halachah, can offer helpful advice in many situations where medical defects threaten a prospective shidduch.
Waiting to Reveal a Flaw
Sometimes, it is wise to reveal a flaw after a couple has begun dating, so the flaw will be considered within the greater context of the person’s character traits. For example, Rav Moshe advises the woman who had lost her virginity to withhold this information when she first begins dating a man. Although Rav Moshe requires her to reveal her past at some point before her wedding, he encourages her to wait until her relationship has progressed to serious discussions about marriage, when she can more comfortably explain to her prospective groom that she did indeed sin but has since repented completely. Regarding the woman who temporarily lost her hair, Rav Wosner similarly recommends that she begin dating while wearing a wig that appears natural, and she should reveal her medical condition only later in the relationship.
Along the same lines, Rav Hershel Schachter told Rav Ezra Frazer that one must divulge that one has been previously engaged. However, Rav Schachter suggested revealing this information after a few dates have passed, so that the relationship will have some time to develop in an unbiased manner before one’s dating partner learns of the broken engagement. At the same time, Rav Schachter cautioned that one should not wait too long before divulging this information, lest one’s dating partner later feel misled or deceived.
Although poskim suggest waiting before revealing the aforementioned flaws, Rav Mordechai Willig has commented that one may temporarily conceal flaws only if they are not too severe. On the other hand, Rav Willig ruled that an extremely severe flaw, such as infertility, must be revealed at the outset.
Voluntarily Revealing One’s Own Minor Flaws
Rav Gidon Weitzman offers one additional piece of practical advice. He often recommends that a man and woman even share minor flaws with one another, lest their revelation at a later stage might harm the couple’s shalom bayit (peaceful relationship). In light of this insight, it would seem foolish to conceal one’s age from a prospective spouse, even in situations when this information might be less significant than the blemishes that we have discussed in this chapter. Of course, sometimes concealing one’s age can be as serious as many of the other cases that we have discussed.
Conclusion
Both speaking lashon hara unjustifiably and withholding critical information from those who must know it constitute terrible sins. Rav Ovadia Yosef and Rav Eliezer Waldenberg cite the comments of Rav Yisrael Isserlin (Pitchei Teshuvah, Orach Chaim 156), who decries the fact that people often fail to speak lashon hara when they should. At the same time, revealing non-critical flaws can unfairly destroy wonderful shidduchim. A competent Rav who has significant experience in dealing with these issues must be consulted regarding practical questions. A skilled Rav can help explain challenges to couples and counsel them appropriately, in addition to formulating a technical halachic ruling in each situation. Even when a flaw must be revealed, utmost sensitivity must be exercised in order to notify the relevant party in the least humiliating manner.
"Orthodox Infertility", When Halachah Interferes with Conception
Observance of taharat hamishpachah (the laws of family purity) may be responsible for some observant couples experiencing difficulty conceiving children. Some health-care professionals in both the United States and Israel know of this problem and have even given it a name – “Orthodox Infertility.” The problem arises when a woman ovulates before she visits the mikvah (ritual bath). A couple, generally speaking, is capable of producing a child if they have relations from about two days before the wife’s ovulation until a very brief time after her ovulation. Hence, if a woman cannot visit the mikvah before ovulation, then she will not be able to cohabit with her husband at a time when she can conceive. In this chapter, we summarize how halachic authorities of the past fifty years have grappled with this issue. We also seek to provide some direction for couples who are experiencing this problem.
Background: Seven Clean Days
In order to understand the problem, we must first define the Biblical concepts of nidah and zavah. Nidah refers to a woman who sees menstrual blood on a day when she expects it to flow (Vayikra 15:19). This flow renders her ritually impure and prohibits relations with her husband for seven days. Even if she continues to see blood all seven days, she may go to the mikvah and purify herself immediately after they end. On the other hand, if a woman sees uterine blood at an unexpected time, then she becomes a zavah. If the bleeding persists for three consecutive days, she must wait until all bleeding ceases. She then counts seven days before she may visit the mikvah (Vayikra 15:25-28). Thus, once a zavah sees blood for three consecutive days, the total time that she remains impure will always last at least three days longer than the seven-day nidah period.
In numerous places in the Gemara (such as Nidah 61a), Rabbi Zeira recounts that Jewish women accepted upon themselves to treat even the slightest drop of blood as if it rendered them zavot. Hence, women wait for all bleeding to stop, and then they count seven “clean” (bloodless) days. The Rambam (Hilchot Issurei Bi’ah 11:1-4) explains that women accepted this stringency - commonly known as chumra deRabbi Zeira - to avoid confusion in distinguishing between expected and unexpected events. Rather than risk transgressing an extremely serious Torah prohibition, Jewish women opted to always wait seven clean days.
The Gemara (Berachot 31a) presents this practice as an example of halachah p’sukah, an undisputed rule. The Ramban (Hilchot Nidah Leramban 1:19) comments:
This stringency that Jewish women have adopted was approved by Chazal, and they accorded it the status of halachah p’sukah in all locales. Therefore, it is never permitted to be lenient about this matter.
Five Additional Days
Following the acceptance of chumra deRabbi Zeira, women could potentially begin counting seven clean days from the first day after they stop seeing blood. However, the Gemara (Nidah 42a) appears to rule that a woman may not count a day towards the required seven clean days if her body releases semen on that day (poletet shichvat zera; see Tosafot, Nidah 33a s.v. Ro’ah). Accordingly, were a couple to have relations shortly before the wife’s menstruation, she would not be able to count clean days until she could be sure that her husband’s semen was no longer in her body.
The majority opinion in the Gemara (Shabbat 86b) asserts that sperm can live inside the woman for three full days. For example, if a couple had relations on Sunday at 12:00 AM, the woman could continue to release live sperm until 12:00 AM Wednesday. In such a situation, the clean days could not commence until Wednesday night even if the woman’s entire menstrual flow started and ceased earlier in the week.
The Terumat Hadeshen (Teshuvot 245) records two additional stringencies that developed during the Middle Ages, which can further delay the start of the seven clean days. Since some couples might have relations just before the onset of menstruation, many Rishonim require all women to wait four days from when they first see blood before they count seven clean days. Even if a particular woman did not cohabit prior to menstruation, they rule that she, too, must wait these four days. The Rama (Yoreh Deah 196:11) codifies their position.
Furthermore, the Terumat Hadeshen adds a fifth day before the clean days may begin. He expresses concern that couples will cohabit immediately after sunset, while thinking that they had relations before sunset. Thus, they will calculate the four days incorrectly. For example, a couple will cohabit Sunday evening and think that it is still late Sunday afternoon. The wife will thus think that she can begin her clean days on Thursday, whereas in reality she had relations on Monday and must thus wait until Friday. In order to avoid confusion, the Terumat Hadeshen requires every woman to wait five days from when bleeding begins, so only the sixth day can count as the first clean day. The Rama (ibid.) accepts this stringency, as well.
In practice, Ashkenazic Jews universally accept the Rama’s ruling and do not begin counting seven clean days until the sixth day after first seeing blood. Rav Ovadia Yosef (Taharat Habayit 2:13:11) permits Sephardic Jews to rely on the Shulchan Aruch and start counting clean days on the fifth day. Nevertheless, Rav Shlomo Levy (in a lecture at Yeshivat Har Etzion) reported that most Sephardic women have traditionally followed the Rama on this issue, and Rav Mordechai Eliyahu (Darchei Taharah p. 138) also rules in accordance with the Rama. Of course, a woman may never begin counting clean days until she stops seeing blood, regardless of how many days have passed.
The Problem
For most women, our present stringencies work out conveniently, as the night of immersion will often correspond to the ideal time for conception. For certain couples, however, ovulation occurs before the night of immersion. After ovulation, sperm cells cannot normally reach the egg, so the window of opportunity for conception has closed. The poskim of the past few decades have addressed which of the aforementioned stringent customs might be waived in order to facilitate immersion before ovulation for these couples.
Response of the Twentieth Century Poskim
Waiving the chumra deRabbi Zeira would enable women who ovulate early to conceive. Without chumra deRabbi Zeira, they could immerse seven days after beginning to see blood, in accordance with the laws of a Biblical nidah. However, virtually all halachic authorities have forbidden this solution. Rav Yosef Dov Soloveitchik (as reported by Rav Aharon Lichtenstein and Rav Yosef Adler), Rav Ovadia Yosef (Taharat Habayit 1:1:6), and Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 2:70:1:3) all cite the Ramban’s aforementioned comments as proof that we may never waive the requirement for seven clean days, even when it interferes with conception.
One may ask, however, why does the Torah obligation of peru ur’vu (the obligation to have children) not override the rabbinic requirement for seven clean days, in cases where we are certain that the woman is not truly a zavah. Rav Moshe Feinstein (Teshuvot Igrot Moshe, Y.D. 1:93) responds that there is no general halachic principle that permits violation of a rabbinic prohibition in order to fulfill a Torah obligation. In fact, the Gemara (Shabbat 130b) teaches that we may not carry a milah knife on Shabbat in an area where the Rabbis forbade carrying, the Biblical mitzvah of circumcision notwithstanding. Similarly, one may not violate the rabbinic prohibition against sprinkling the ashes of a parah adumah (red heifer) on Shabbat, even when this procedure would enable someone who came in contact with a corpse to offer the korban Pesach (Pesachim 92a and Rambam, Hilchot Korban Pesach 6:6). Rav Moshe thus asserts that in most cases one may not violate a rabbinic prohibition in order to fulfill a Biblical obligation.
Rav Ovadia Yosef (note 6) offers a second approach for why peru ur’vu does not override chumra deRabbi Zeira, based on Tosafot in Gittin (41a s.v. Lisa). He notes that Chazal (Gittin 41) forced the owner of a partially emancipated slave to free him completely, as the slave’s hybrid status would otherwise prevent him from marrying Jews and slaves alike. Tosafot question why the mitzvah of peru ur’vu does not override the prohibition against a partial slave marrying a Jewish woman, thus alleviating the need to free him. They answer that we do not waive this prohibition because an alternative exists to accomplish the goal and violate a less serious prohibition (freeing a Canaanite slave). Rav Ovadia argues that we similarly do not waive the requirement for seven clean days since there are other halachic and medical options that allow the husband to fulfill peru ur’vu without violating it.
Tosafot also point out that women are not obligated in the mitzvah of peru ur’vu (see Yevamot 65b). Accordingly, even if the slave had no other options, we could not permit a Jewish woman to marry him - a sin for her - simply to facilitate his fulfillment of peru ur’vu. Similarly, Rav Ovadia argues, since the woman is not obligated in peru ur’vu, she may not skip counting seven clean days simply to enable her husband to fulfill his mitzvah.
Halachic and Medical Options
Rav Ovadia Yosef (ibid.) and Rav Moshe Feinstein (Teshuvot Igrot Moshe, Even Ha’ezer 2:18) permit artificial insemination using the husband’s sperm, before the wife has immersed in the mikvah. Rav Ovadia and Rav Moshe write that the child will not bear the stigma of a ben nidah (child conceived during the nidah period) if it is conceived in this manner. It is important to note that many poskim strongly urge that this process be performed under rabbinical supervision to insure that no tampering or mistakes occur during the process.
As an alternative solution to “Orthodox Infertility,” many halachic authorities permit a woman with this problem, subject to certain conditions, to examine herself in the prescribed manner (hefseik taharah) even before five days have passed since the bleeding began. If her examination proves that she has indeed stopped bleeding, then she may immediately begin counting seven days. These authorities believe that the custom to wait five days (or four days for those Sephardic Jews who follow Rav Ovadia Yosef’s view) from the start of the bleeding before beginning to count the seven clean days may be relaxed in order to fulfill the mitzvah of peru ur’vu, as we treat a custom significantly less stringently than a full-fledged rabbinic prohibition. This approach helps solve the problem in those cases where a woman stops bleeding fast enough to permit her to perform an early hefseik taharah.
Another option might be for an especially competent doctor to prescribe medicine that will adjust the wife’s cycle to avoid this problem. Rav Menachem Burstein (in a 2004 lecture at Yeshiva University) mentioned that medications have greatly reduced instances of “Orthodox Infertility.” Care must be taken to insure that this process does not harm her health.
It is important to note that some couples mistakenly believe that the laws of family purity are preventing the wife from conceiving, because the wife believes that she is a nidah when, in fact, she is not. Rav Binyamin Forst (The Laws of Niddah p. 34) explains, “Many women do not suddenly stop staining on the fifth day. It is very common to find a stain on the Hefseik Taharah cloth.” Some women think that every one of these spots is a prohibited stain and thus do not begin the seven clean days when they are in fact permitted to do so. A couple should consult a competent halachic authority regarding this issue, as it might be the reason that the woman is not conceiving.
Home Remedies
Assorted sources have reported varying success in solving this problem with home remedies. Dr. Mordechai Halperin of Jerusalem once stated in a public lecture that he has experienced successful resolution of this problem in some cases simply by instructing the wife to eat breakfast. In fact, I recommended this course of action to a woman who approached me regarding her difficulty conceiving. A few months later, she reported that she conceived soon after she initiated a daily routine of eating a proper breakfast.
Interestingly, the Gemara (Bava Kama 92b) and Shulchan Aruch (Orach Chaim 155:2) urge us to eat breakfast. The Gemara quotes a folk saying, “Sixty people run, but they cannot keep up with one who ate breakfast.” Furthermore, the Gemara (Bava Metzia 107b) states that eighty-three sicknesses are related to malfunctioning of the gall bladder, and eating breakfast can cure all of them. Rav Menachem Burstein (the head of the prestigious Machon Puah in Jerusalem) told me that eating breakfast sometimes solves Orthodox Infertility, because orderly nutritional intake might help bring order to a woman’s cycle.
Other home remedies also exist, and Rav Burstein told me that he has heard reports of limited success with these approaches. These home remedies, however, offer only limited success and have some noteworthy drawbacks. They often take considerable time to take effect, and older couples cannot necessarily afford to wait a year or two in order to see if these remedies will work. Even younger couples, who do not feel the same urgency to conceive immediately, can still experience unhealthy emotional stress in their marriages as their period of infertility continues. Moreover, Dr. Zalman Levine (a noted fertility specialist), Dr. Harry Lieman (a noted fertility specialist) and Dr. David Serur (Associate Prof. of Medicine at Weil-Cornell Medical Center) all pointed out to me that, thus far, no scientific evidence has proven the efficacy of eating breakfast or the other home remedies. Accordingly, it would seem wise to seek out competent medical advice before deciding to attempt home remedies instead of recognized medical procedures.
Conclusion
I have become aware of an urgent need to inform people about this problem and its potential solutions. Rabbis and doctors have told me that appropriate halachic and medical advice can help resolve this problem in almost all cases.
Postscript – Machon Puah
It is very important to bring to the community’s attention a most wonderful resource for Jews throughout the world. Machon Puah in Jerusalem provides halachic guidance to couples who are experiencing difficulties conceiving a child. Currently, their rabbinical staff includes rabbis who speak five languages. Rabbis are available full-time to respond to questions regarding the interface of Halachah and fertility. Moreover, Machon Puah is at the forefront of offering rabbinical supervision of fertility procedures. It is highly worthwhile for rabbis and laymen to consult with Machon Puah in case of need. One may contact them by e-mail at questions@puah.org.il<.
In Vitro Fertilization
The twentieth century saw humanity’s perceptions of life transformed in almost every way possible. Rabbis have faced a seemingly endless list of new halachic issues. Challenged by a world that is growing increasingly sophisticated at a pace unparalleled in all of history, they must constantly apply Divine law to new phenomena. In Vitro Fertilization (IVF), which consists of removing an egg from a woman’s body, fertilizing it, and then transferring it into either her or another woman’s womb, exemplifies the complex issues that now face halachic authorities.
Is IVF Permitted?
A great contemporary authority, Rav Eliezer Waldenberg (Tzitz Eliezer 15:45) objected to the entire procedure of IVF. Rav Waldenberg argues that whenever the fertilization fails, the husband has ejaculated to waste. Even when one sperm cell does fertilize the egg, Rav Waldenberg notes that the rest of the semen goes to waste. Rav Waldenberg further claims that one does not fulfill the mitzvah to have children (peru ur’vu) on any level through IVF. Thus, he writes:
What does one gain by presenting a way to create children in this manner, if the creators of this child will not fulfill any Divine command and the practice of IVF will create profound and complex problems, which have the potential to cause the level of human morality to deteriorate more than a thousandfold?
Rav Waldenberg expresses particular concern that IVF will lead to cloning, which he deems an utter abomination because it could distort the human character. Most halachic authorities reject Rav Waldenberg’s approach.
Rav Ovadia Yosef (Teshuvot Yabia Omer vol. 8, Even Ha’ezer 21) permits IVF for an infertile couple. He specifically permits IVF when the wife’s eggs are being fertilized, but he does not address the propriety of IVF when another woman donates the egg. Rav Yosef Shalom Eliashiv (cited in Nishmat Avraham 5:113) also permits IVF when the wife’s eggs are used, but not when using the egg of another woman. He insists on supervision of the IVF process to insure that only the genetic material of the husband and wife are used. Rav Shlomo Zalman Auerbach (cited in Nishmat Avraham 5:113) adds that an infertile couple is not obligated to undergo IVF in order to have children.
Although most authorities do not fundamentally object to IVF, at least for married couples, several major problems do arise during IVF procedures, including procuring the husband’s sperm in a halachically acceptable manner, the permissibility of paying a woman to donate an ovum (if one’s Rav permits using a donated ovum), and concern for the possible mamzeirut (illegitimate status) of the donor (if permitted), and the credibility of a non-observant or non-Jewish doctor’s assertion that he used the sperm and/or ovum of a particular person.
Defining Motherhood
In some cases of IVF, doctors implant the fertilized embryos inside a woman other than the source of the ovum. These situations raise the difficult issue of determining whom the Halachah views as the fetus’s mother. Authorities vigorously debate the definition of motherhood, with each side seeking to marshal proofs from classical sources.
The Aramaic Targum (translation of the Torah) attributed to Yonatan Ben Uzziel (Bereishit 30:21) cites a tradition that Rachel conceived and carried Dinah, while Leah conceived and carried Yosef. Leah prayed on Rachel’s behalf that she should give birth to a boy and thus be the mother of one of the tribes. God accepted Leah’s pleas on behalf of her sister and exchanged the two fetuses, so Leah’s womb carried Dinah and Rachel’s womb carried Yosef. Since the Torah records Leah as Dinah’s mother and Rachel as Yosef’s mother, one might conclude that according to this Targum, giving birth confers the status of motherhood.
However, the Tur (Peirush Tur Ha’aroch on Bereishit 46:10) explains this midrash in a manner that seemingly indicates the exact opposite, that the ovum donor is the halachic mother in a case of surrogate motherhood. In analyzing the midrash (quoted by Rashi on Bereishit 46:10) that Shimon married his sister, Dinah, the Tur wonders why their union did not constitute incest. After all, Shimon and Dinah were both children of Leah, and marrying a maternal sister was prohibited even before the giving of the Torah. The Tur answers that, as quoted above from Targum Yonatan, Dinah began in Rachel’s womb. Even after she was switched to Leah’s womb, the Halachah still considered her to be Rachel’s daughter, so she and Shimon thus had different mothers. Before the Torah was given, one was allowed to marry a paternal half-sister. Therefore, Leah’s son, Shimon, did not violate the Halachah when he married Rachel’s daughter, Dinah. We thus see that according to the Tur, the Halachah defines motherhood by the woman whose egg forms the fetus, even if another woman gives birth to the baby. Of course, Aggadic passages usually cannot serve as definitive halachic proofs. Nevertheless, the Tur’s words merit serious halachic consideration, especially because he is explaining how to understand the story from a halachic perspective.
Arguments in Favor of the Birth Mother
Megillat Esther (2:7) appears to repeat itself by recounting both that Esther had no mother or father and that her parents died. The Gemara (Megillah 13a) explains that the apparent redundancy teaches that Esther never had a parent. After she was conceived her father died, and her mother died in childbirth. Rashi explains that at the moment at which she could have been identified as Esther’s mother, the woman died. This seems to imply that the act of giving birth confers the status of motherhood, as opposed to the act of conception. Once again, however, we are dealing with an Aggadic passage, so it might lack halachic significance.
Rav Zalman Nechemia Goldberg (Techumin 5:252) offers the strongest proof for those who define motherhood by giving birth. He cites a passage from the Gemara (Yevamot 97b) that discusses a non-Jewish woman who conceived twins and converted during her pregnancy. The Gemara considers the babies to be half-brothers on their mother’s side. If the mother-son relationship between the woman and her twins had begun at the time of conception, her subsequent conversion would have terminated it, based on the principle of ger shenitgayer kekatan shenolad dami (a convert is like a newborn baby, so he is no longer related to his original family). Accordingly, if the Gemara rules that this woman is related to her twins, the mother-son relationship must have come into existence only after her conversion. We must hence conclude that birth, and not conception, confers the status of motherhood. Indeed, Rav Eliezer Waldenberg (cited in Nishmat Avraham 4:184-186) writes that the birth mother is the baby’s halachic mother. Rav Eliashiv (cited in Nishmat Avraham 4:184) also favors treating the birth mother as the halachic mother, but, as recorded in 1990, he believes that no definitive halachic resolution has been reached. Rav Gidon Weitzman informs me that Rav Mordechai Eliyahu believes that it is clear that the birth mother is the halachic mother.
Arguments in Favor of the Ovum Donor
Rav Ezra Bick (Techumin 7:266-270) disputes these two proofs. He argues that birth establishes or completes a maternal relationship only if the woman who gave birth to the child donated the maternal genetic material. Both Esther’s mother and the female convert conceived the babies to whom they ultimately gave birth. On the other hand, giving birth to a baby who was formed from another woman’s egg does not establish a mother-child relationship.
Rav Bick, in turn, cites a Talmudic passage (Chulin 70a) that discusses the status of a fetus who is transferred from one animal to another. The Gemara uses the word “dideih” (“his”) to describe the fetus’s relation to his genetic mother, whereas the second female animal (the birth mother) is described as “lav dideih” (“not his [mother]”). Rav Bick therefore concludes that birth does not confer the status of motherhood upon a woman unless she has provided the maternal genetic material of the child. A counter-argument might be that in the case of the animal-fetus transplant, removal of the fetus from the first animal constitutes an act of birth, so the second animal acts merely as an incubator. One cannot claim, however, that the harvesting of an ovum from a woman is considered an act of birth. Nevertheless, Rav Aharon Lichtenstein believes that the woman who donates the ovum is the halachic mother. Rav Yaakov Ariel (Techumin 16:177) writes that this position “appears more logical” than defining motherhood by giving birth. Rav Mordechai Willig told me that he is also inclined to this position.
Rav Itamar Warhaftig (Techumin 5:268-269) cites another Aggadic source (Nidah 31a) to show that the woman who donates the ovum is the halachic mother. The Gemara describes the physical attributes that each of the “three partners” in childbirth - God, mother, and father - provides, taking for granted that the mother contributes to the genetic makeup of the child. Of course, since this passage is Aggadic, its halachic impact is questionable.
Rav J. David Bleich (Contemporary Halakhic Problems 4:251-258) points out that the passage in Yevamot (about the convert who gives birth to twins) merely proves that birth can establish a maternal relationship, but it does not prove that only birth can create this relationship. Accordingly, Rav Bleich suggests that perhaps a woman can become a mother either by conceiving or by giving birth. Hence, in cases of surrogate motherhood or ovum donations, a child might have two mothers!
Neither side has demonstrated its position in a conclusive manner. Hence, absent a clear consensus, Rav Shlomo Zalman Auerbach (cited in Nishmat Avraham 4:186), Rav Zalman Nechemia Goldberg (Techumin 10:281), Rav David Feinstein (personal communication), and Rav J. David Bleich (personal communication) rule that one must act strictly in accordance with both opinions. According to them, if the donor of the ovum is not Jewish, the child needs a conversion. Moreover, Kohanim, who may not marry converts (Kiddushin 78a), should not marry any girls born from a non-Jewish donor (see Techumin 10:280). On the other hand, if the donor is Jewish, records must be kept to ensure that the child does not marry any of the donor’s other children (see Techumin 10:273-281).
Subsequent Complications
A number of other major issues emerge from the process of IVF. For example, authorities discuss the propriety of discarding fertilized eggs that are not transferred into a womb or using them for medical research. Rav Zalman Nechemia told me that he believes a fertilized egg does not have the status of a human life. He explained that an act must occur (transfer into a woman’s womb) in order for the fertilized egg to develop, so its status differs from fertilized ova in the mother’s womb, which develop independently. Rav Gidon Weitzman (speaking at the 5761 convention of Young Israel rabbis) similarly reported that many poskim permit discarding unused frozen embryos.
Interestingly, the Rabbinical Council of America and Orthodox Union jointly sent a carefully worded letter (dated July 26, 2001) to President George W. Bush endorsing embryonic stem cell research on existing embryos, such as those created for the purpose of IVF, that would otherwise be discarded (see Appendix).
IVF often results in a woman carrying many fetuses at once. In many cases, all of the fetuses will die if some of them are not eliminated. For a survey of the permissibility of reducing the number of fetuses in such a situation, see Nishmat Avraham (5:148-149), Techumin (11:272-275), and Rav J. David Bleich’s essay in Spring 1995 issue of Tradition (29:3:47-60).
Poskim also discuss whether one may use IVF as a means of genetic screening. Rav Shlomo Zalman Auerbach and Rav Eliashiv (cited in Techumin 21:107-116) reportedly permit producing children through IVF so that doctors can inspect the sperm’s and egg’s genetic makeup to verify that they are free of genetic flaws.
Rav Shlomo Zalman Auerbach (Minchat Shlomo 3:98:4) questions whether a boy conceived through artificial insemination should have his brit milah on Shabbat. Rav Hershel Schachter (in a lecture at Yeshiva University) ruled in practice against circumcising such a baby on Shabbat, and Rav J. David Bleich (Tradition 35:2) asserts that the same applies to a child who is conceived through in vitro fertilization. However, Rav Ovadia Yosef (comments to Nishmat Avraham vol. 4 p. 226; Yalkut Yosef, Sova Semachot 2:151-152) permits circumcising a baby conceived through artificial insemination or IVF on Shabbat. Parents should ask their rabbi if they must discretely inform the mohel of the baby’s background (as the mohel probably does not know the conception’s circumstances).
Conclusion
As is evident from our discussion, IVF constitutes an extremely sensitive area, both in terms of Halachah and in terms of human emotions. Only close cooperation between one’s personal Rav and a leading halachic authority can help a couple through this difficult procedure with competent and sensitive guidance.
The Beth Din of America's Handling of the World Trade Center Agunot
The tragic events of the September 11, 2001, terrorist attacks on the Twin Towers of the World Trade Center, resulted in over two thousand deaths. As a result of this tragedy, fifteen cases of agunot were presented to batei din (rabbinical courts) in the New York metropolitan area. The Beth Din of America, the beit din of the Rabbinical Council of America and the Orthodox Union, handled ten of these cases. In this chapter, we outline the halachic sources and background that enabled the Beth Din to permit these women to remarry by determining that their respective husbands indeed had died. Several of the prominent rabbis who participated in the deliberations regarding these women’s status have published teshuvot (responsa) about the cases. The teshuvah of Rav Gedalia Schwartz, the Av Beit Din (Chief Justice) of the Beth Din of America, appears in the 5762 issue of HaDarom. Responsa from Rav Zalman Nechemia Goldberg regarding all of the cases and Rav Ovadia Yosef regarding one case (a Sephardic husband) appear in the fourth volume of Kol Zvi (pp. 3-63) and were reprinted in Techumin (23:97-119). The same volume of Kol Zvi also includes Rav Mordechai Willig’s careful and methodical presentations of the tragedy’s facts and the related halachic issues on which the rabbis involved needed to rule.
When a Wife Disappears
A husband whose wife disappears may not remarry without proof of her death. We are much more lenient, however, for men whose wives disappear, as the prohibition for a married man to marry a second wife is only rabbinic in nature, whereas the prohibition for a married woman to marry another man involves a capital Biblical offense (see Pitchei Teshuvah, Even Ha’ezer 1:14). Rav Yonah Reiss, Director of the Beth Din of America, informed me that a number of husbands called the Beth Din of America after their wives disappeared in the World Trade Center attacks. Rav Reiss said that the Beth Din followed the view of the Gesher Hachaim (1:19 note 4), who rules that a husband may remarry if adequate evidence exists that his wife was at the place where a tragedy occurred, and that most people who were in her location and situation perished.
General Background
Before discussing the World Trade Center agunot, we will present a basic overview of the process for determining the death of a husband when no body is found. Rabbis throughout the generations devoted extraordinary efforts to resolve cases of agunot. In fact, the Otzar Haposkim (in its 1982 edition) devotes no fewer than eight volumes, spanning approximately 1500 pages, to this topic alone. Fifteen hundred pages merely summarize the responsa literature on the subject of agunot! An example of some rabbis’ extraordinary efforts is Rav Yitzchak Herzog (Teshuvot Heichal Yitzchak, E.H. 2:9), who writes that, although his doctors gave him strict orders not to read anything (for the sake of his eyes’ health), he violated their command in order to research and issue a ruling regarding an agunah, due to the compassion he felt for her. Some rabbis, such as Rav Yitzchak Elchanan Spektor, were famous specifically for their special attention, sensitivity, and creativity in this area of Halachah.
From the time of the Gemara, poskim have tried to be as lenient and creative as possible regarding agunot while maintaining the integrity of the halachic process. The Sam Chayei (17) describes the attitude of a rabbi grappling with an agunah situation:
It is comparable to one who is running away from a lion and has encountered a bear, as the battle has caught him from the front and behind; just as he fears being lenient so, too, does he fear being strict.
This process continued in the twentieth century, as poskim responded to the enormous challenges that arose in that war-filled century. For example, Rav Moshe Feinstein (Teshuvot Igrot Moshe, Even Ha’ezer 1:41-51 and 4:56,58) and Rav Tzvi Pesach Frank (Teshuvot Har Tzvi E.H. 1:64-70) deal extensively with agunot from the Holocaust. Rav Yitzchak Herzog (Teshuvot Heichal Yitzchak, E.H. 2:1) writes at length about the rulings he issued regarding agunot from Israel’s War of Independence. Rav Ovadia Yosef (Teshuvot Yabia Omer E.H. 6:3) records his rulings regarding the agunot of the Yom Kippur War of 1973. Regrettably, poskim have once again been summoned to deal with the many agunot resulting from the World Trade Center terrorist attacks.
Methodology
The Otzar Haposkim (8:203-211) outlines the basic methodology of poskim regarding cases of agunot. Poskim emphasize that not just any rabbi may resolve questions in this area. Rather, only a rabbi of great stature should rule upon a matter of such great urgency (see the many sources cited in the Otzar Haposkim 8:206-207). Moreover, whenever possible, it is customary for three eminent rabbis to consult one another and agree upon a conclusion before issuing a lenient ruling. The Aruch Hashulchan (E.H. 17:255) documents this practice:
It is a major principle (klal gadol) regarding permitting agunot to remarry that in any case where a lenient ruling is not straightforward and a rabbinical ruling is necessary, even the greatest of rabbis should not issue a permissive ruling until two other great rabbis concur with his ruling. This has always been the practice of all eminent rabbis, as is evident from all of the responsa literature… and one should not deviate from this practice.
In our case, the Beth Din of America’s leading Dayyanim, Rav Gedalia Schwartz and Rav Mordechai Willig, deliberated concerning the World Trade Center agunot. Moreover, the Beth Din of America consulted with Rav Ovadia Yosef and Rav Zalman Nechemia Goldberg, who issued permissive rulings, before it permitted these women to remarry. The Gemara (Yevamot 121a) might provide a source for the practice of consulting numerous authorities before ruling on the status of agunot. In the context of a discussion about agunot, the Gemara cites a verse from Proverbs (11:14) to teach that salvation comes when one seeks much advice.
The Chavatzelet Hasharon (E.H. 28) records his practice (as he learned from one of his teachers) in resolving agunah situations. First, he would thoroughly research the facts of the situation. He would employ his own common sense to consider whether it appeared logical to conclude that the husband had died, and only subsequently would he explore whether his initial assessment was consistent with Halachah. Rav Yosef Eliyahu Henkin writes (Lev Ivra, printed in Kitvei ha-Gria Henkin P. 164) that this is the accepted practice. In the World Trade Center situation, Rav Yonah Reiss and his assistants at the Beth Din of America devoted months of meticulous research, in coordination with many public and private agencies and firms, to compile the “raw material” from which the dayanim (judges) of the Beth Din could reach conclusions. His research included obtaining telephone, cell phone, subway, and elevator records, as well as the results of DNA testing and dental records. In fact, the leniencies of the Gemara and all subsequent authorities are predicated on the assumption that exhaustive research has been undertaken.
Meticulous proceedings in the beit din are a hallmark of properly resolving agunah situations. The beit din must know the appropriate questions to ask witnesses and how to collect information from the witnesses properly. Indeed, collecting evidence improperly has in the past impeded a lenient resolution of agunah situations (see for example, Teshuvot Beit Shlomo, E.H. 43).
Hearing the Testimony
The Otzar Haposkim (8:204) notes that the authorities always emphasize in their agunah responsa that they issued very stern warnings to the witnesses about the importance of testifying truthfully. Although a warning against perjury is a standard feature at all beit din proceedings (see Shulchan Aruch, Choshen Mishpat 28:7), in the context of agunot, the beit din administers sterner warnings than usual. This practice balances the fact that many rules regarding the validity of witnesses and evidence are relaxed for the purposes of permitting an agunah to remarry. For example, women (even including the agunah herself), relatives, and those who are inadmissible witnesses merely on a rabbinic level are all acceptable witnesses in this context (Yevamot 121-122 and Shulchan Aruch, E.H. 17:3). Hearsay evidence (eid mipi eid) and the testimony of one witness are also valid specifically regarding agunot (ibid.). The stern warnings counterbalance these leniencies.
Moreover, some well-meaning people might be tempted to lie in order to help free the agunah. If they believe that the husband has died based on questionable evidence, they might present their conclusion to beit din as absolute knowledge. The severe warnings serve to counter such attitudes. Indeed, the Rambam (Hilchot Geirushin 13:29) explains that Chazal relaxed the laws of testifying in the context of agunah because people are severely disinclined to testify falsely when the lie can be discovered, thereby ruining their reputations. The severe warning reinforces this attitude, as it instills fear in the witnesses that they will face harsh consequences if they are caught lying.
Interestingly, Rav Ovadia Yosef (Teshuvot Yabia Omer, E.H 8:18) accepts the testimony of most contemporary non-observant Jews in the context of agunot. This ruling is quite noteworthy because Rav Ovadia repeatedly rules (in numerous teshuvot in the same volume of Yabia Omer) that a non-observant Jew is not a valid witness in any other areas of Halachah.
Issuing a Ruling
The Otzar Haposkim (8:210) notes that poskim try to collect many reasons to support a lenient ruling about an agunah, reflecting the enormous responsibility that weighs on the shoulders of poskim who issue rulings on this matter. Thus, even if one particular reason convinces a rabbi to rule leniently, he will still seek additional reasons to strengthen his ruling. Finally, poskim must act prudently when issuing lenient rulings regarding agunot. The Otzar Haposkim (ibid.) notes that many rabbis wait until the end of a year from the time the husband disappeared to issue a lenient ruling. Indeed, Rav Gedalia Schwartz reports that when he consulted with Rav Ovadia Yosef regarding one of the World Trade Center agunot, Rav Ovadia agreed with the ruling, but Rav Ovadia advised that the Beth Din wait until a year had elapsed since September 11, 2001, before issuing a lenient ruling.
The Otzar Haposkim (8:211) concludes by citing from the Devar Emet (108) that once a duly recognized and competent beit din has issued a lenient ruling to permit an agunah to remarry, another beit din or Rav should not attempt to revisit the case and review the cogency of the beit din‘s ruling. Otherwise, the agunah’s plight would never be truly resolved until she received the approval of every halachic authority in the world, which is obviously unnecessary.
The Range of Possible Scenarios
We shall divide our discussion of actual cases to three basic categories. In the first category, human remains have been found and the beit din must determine that the remains are those of the missing husband. In a more complicated type of case, no body has been discovered but evidence proves that the husband was, at the time of the attacks, in a part of the World Trade Center where all or nearly all people perished. The final category is when no empirical evidence proves that the husband was in the disaster’s location, but following his usual routine would have led him to be there.
The Sequence of Events on September 11, 2001
Rav Willig records the key events of the attacks on the World Trade Center in his essay in Kol Zvi. The first plane hit the North Tower of the World Trade Center at 8:46 A.M. between floors 93 and 98. The Beth Din of America determined (after consultation with experts) that this immediately destroyed the elevators and all stairways from the ninety-second floor and above. Thus, anyone who was located in this part of the building at the time of the plane’s impact could not escape. Indeed, there are no known survivors from the ninety-second floor or above. The building collapsed at 10:29 A.M.
The second plane hit the South Tower at 9:02 A.M. between floors 84 and 87, and this building collapsed at 9:59 A.M. Of those who were at floor 78 and above at the time of impact, only ten are known to have survived. The ten who survived were standing by stairwell “A.” The elevators and stairwell “B” were destroyed by the impact of the plane. It seems that stairwell “A” remained intact only for a very brief time after the impact, and that only people who were standing immediately next to it were able to survive. The ten survivors sustained very serious injuries and would not have survived without immediate hospitalization.
Identifying the Man’s Remains: Classical Simanim
The simplest way to solve an agunah’s case is to find the husband’s body intact within three days of his presumed death. The Shulchan Aruch (E.H. 17:24-26) codifies the Mishnah (Yevamot 120a) according to which one may identify a husband within three days of death and only if the face (including the nose) is intact. In the absence of such evidence, however, simanim (identifying characteristics) on the body of the deceased are necessary for identification. Many of the most obvious traits, such as a ruddy complexion or the fact that he is either tall or short, do not suffice, as they are quite common. Rather, witnesses must find a siman muvhak (a unique characteristic) in order to identify the husband (Shulchan Aruch E.H. 17:24). The Beit Shmuel (17:72) and Aruch Hashulchan (E.H. 17:172) cite the Mas’at Binyamin (63) as asserting that if fewer than one in a thousand people share this feature, then it is classified as a siman muvhak.
In the absence of a siman muvhak, we check for a middle category, simanim beinoniyim, features that are neither very common nor very rare. Rather than automatically accepting or discounting a siman beinoni, the practice is to treat two such simanim as equivalent to one siman muvhak. Furthermore, one such average siman may be combined with other relatively convincing evidence that indicates that the body is that of the missing husband. The Aruch Hashulchan (ibid.) cites an opinion that “numerous” inadequate simanim may be combined to constitute one siman beinoni, but each case must be judged independently by the leading halachic authorities of the time, who must evaluate whether all the various types of inadequate simanim in the particular case indeed combine to render the odds of a mistaken identity less than one in a thousand (the aforementioned definition of a siman muvhak).
An enormous volume of literature exists concerning the classification of specific features. For example, the Otzar Haposkim (5:288-324) summarizes responsa addressing no fewer than 165 bodily features. In addition, the Otzar Haposkim (5:206-280) summarizes the various opinions regarding what combinations of simanim are adequate to identify a husband.
Identifying the Remains: Modern Techniques
Classifying dental records and DNA evidence in terms of the above categories of simanim is critical in resolving the plight of World Trade Center agunot. The Beit Shmuel (17:72) rules that a hole that goes through an entire tooth constitutes a siman muvhak. The Aruch Hashulchan (E.H. 17:173), writing in the late nineteenth century, asserts that holes in teeth do not constitute a siman muvhak, as they are very common. However, Rav Moshe Feinstein (Teshuvot Igrot Moshe, E.H. 4:57, writing in 1959) and Rav Ovadia Yosef (Teshuvot Yabia Omer, E.H. 6:3:4:20, writing in 1974) rule that dental records may help identify a missing husband, in conjunction with other evidence. Rav Ovadia explains that the dental records are much more specific than the identifying marks that the Aruch Hashulchan addresses. Rav Zalman Nechemia Goldberg mentions in Kol Zvi that halachic authorities in Israel commonly accept dental records as a siman muvhak. The Beth Din of America partially relied upon dental records for identifying some of the missing husbands.
In recent years, poskim have been asked to address the halachic status of DNA testing. Poskim do not accept or require a DNA test to determine an individual’s status as a mamzeir (illegitimate child). However, Rav Shmuel Wosner and Rav Nissim Karelitz (Techumin 21:123) rule that DNA is admissible as partial evidence together with other corroboratory evidence to determine the identity of a missing husband. They believe that DNA evidence constitutes a siman beinoni. Rav Wosner and Rav Karelitz far prefer a DNA test using a sample from the missing person’s personal effects (such as hair from his hairbrush or saliva from a toothbrush) to a DNA test that uses the DNA of immediate family to make an identification.
Rav Zalman Nechemia Goldberg writes at some length on this issue and concludes that DNA evidence constitutes a siman muvhak. He notes that the chance of error regarding DNA evidence ranges from a billion to one to a quintillion to one, far exceeding the requirement that a siman be shared by no more than one in a thousand people in order to constitute a siman muvhak. Rav Zalman Nechemia draws an analogy between DNA evidence and Rav Yitzchak Elchanan’s ruling (Teshuvot Ein Yitzchak, E.H. 1:31) that a photograph of a missing husband showing that he is dead is sufficient evidence of his death. Rav Shlomo Zalman Auerbach (cited in Nishmat Avraham, E.H. p. 37) similarly seems to regard DNA evidence as conclusive proof regarding all areas of Halachah. Rav Eliezer Waldenberg is cited (Nishmat Avraham, ibid.) as ruling that DNA evidence constitutes partial evidence for halachic purposes. The Beth Din of America partially relied upon DNA testing in the identification of some of the missing husbands.
Assuming that these forms of evidence fundamentally may identify a husband, one could still question whether civil authorities should be trusted when they report the results of these processes. The Shulchan Aruch (E.H. 17:14) codifies a ruling of the Gemara (Gittin 28b) that one may not rely upon the report of a non-Jewish court that it has executed a Jew. Rishonim explain that the authorities might falsely report that they executed the Jew in order to glorify the effectiveness of their judicial system, or simply to instill fear in the residents of the land.
Acharonim debate, though, whether we may rely upon a government-issued report that someone has died when it is clear to us that the concerns offered by the Rishonim do not seem relevant. In the early nineteenth century, two premier authorities of the time debated this issue. Rav Mordechai Banet sent a letter to the Chatam Sofer (E.H. 43), arguing against the validity of such a report, but the Chatam Sofer replied that one may accept it. Later nineteenth century authorities such as Rav Yitzchak Elchanan Spektor (Teshuvot Be’er Yitzchak, E.H. 5:4) and Rav Shlomo Kluger (Teshuvot Ha’elef Lecha Shlomo, E.H. 97) accept the Chatam Sofer’s lenient view. Rav Kluger explains that non-Jewish government officials fear the consequences of being caught as liars, so we may trust their reports. In fact, the Aruch Hashulchan (E.H. 17:80, writing in the late nineteenth century) records that the lenient view has generally become accepted (also see Teshuvot Yaskil Avdi, E.H. 5:20:3).
Rav Yitzchak Elchanan’s reasoning on this matter appears quite cogent. He notes that, unlike other areas of Halachah, a non-Jew’s testimony is valid regarding agunot if he speaks about the matter in passing (meisi’ach l’fi tumo). On the other hand, a non-Jew has credibility in other areas of Halachah only if he testifies about a matter in his professional capacity (uman lo mar’ei anafshei), such as a chef testifying that a food item does not taste like a non-kosher ingredient that fell into it by mistake. Accordingly, reasons Rav Yitzchak Elchanan, a non-Jew testifying in his professional capacity is certainly believed in the context of agunot, where the Halachah is extraordinarily lenient about the type of testimony that is acceptable.
Rav Moshe Feinstein (Teshuvot Igrot Moshe E.H. 1:48) admits the testimony of the United States War Department that the plane of a missing pilot plunged into the English Channel during World War II; elsewhere (E.H. 4:58:7), he similarly accepts the testimony of the Belgian government that the Nazis transported a missing husband to Auschwitz. Rav Ovadia Yosef (Teshuvot Yabia Omer, E.H. 7:14) admits the testimony of the Russian government that a missing husband died in a battle with the Nazis during World War II.
Accordingly, the Beth Din of America partially relied upon the New York City Medical Examiner’s testimony regarding DNA tests administered under his auspices. Rav Willig notes that he and other members of the Beth Din of America were permitted to visit and evaluate the procedures of the New York City Medical Examiner’s laboratory. Rav Willig was duly impressed by the professionalism of this office and concluded that the chance of error in the operation of this office is virtually nil. In fact, Rav Yonah Reiss reports that the Medical Examiner’s office told him that dental records are examined no fewer than five times to insure an accurate identification.
In addition, Rav Zalman Nechemia writes that we may rely upon American Airlines’ assertion that a missing husband was on board one of the planes that crashed into the World Trade Center. He reasons that they also have a professional reputation to uphold and thus may be trusted according to Halachah. He adds that there is no apparent reason for American Airlines to lie about such a matter, as it only serves to increase their exposure to liability for the passenger’s death.
Personal Items in the Wreckage
In some situations, a husband’s body cannot be found, but people do discover personal items of his near the scene of the disaster. In fact, a pair of pants (that had pieces of skin and bones) were found in the World Trade Center wreckage containing the wallet (including a driver’s license and credit cards) of a missing husband whose body was not found.
The Shulchan Aruch (E.H. 17:24) rules that even highly unique items that are found on a body cannot serve to identify the body, for the missing husband might have lent these items to someone else. The Shulchan Aruch makes no exceptions, apparently disqualifying even items that one normally does not lend. However, the Chelkat Mechokeik (17:42) cites a dissenting opinion, which permits identifying a body based on the discovery of highly unique and personal items such as one’s wallet or ring, which one does not normally lend to others. The Beit Shmuel (17:69) adopts the latter position. The Otzar Haposkim (5:173-205) summarizes rabbinical rulings about whether any of ninety-five personal items constitutes something that people would not normally lend.
Rav Moshe Feinstein (Teshuvot Igrot Moshe E.H. 4:57) and Rav Ovadia Yosef (Teshuvot Yabia Omer, E.H. 6:3:2) combine the discovery of such items with other evidence in order to identify a missing husband. Thus, Rav Gedalia Schwartz reports that the Beth Din of America partially relied upon the discovery of the pants containing personal items of the aforementioned missing husband. One might add that although one might lend clothing to others, one does not normally share business attire with others. Businessmen in many companies are quite meticulous about their appearance and generally wear only items that are professionally tailored to fit them perfectly. Thus, it would be highly unlikely for someone to lend his pants to a friend to wear at his business office on a workday. Rav Zalman Nechemia further comments that in today’s affluent society, men do not commonly lend their pants to others.
When No Remains are Found
Those missing husbands whose remains did not turn up posed a much greater challenge for the Beth Din of America. If a man is lost in mayim she’ein lahem sof (waters that have no visible boundary), the Gemara (Yevamot 121) prohibits his wife from remarrying. Although most people who are lost in mayim she’ein lahem sof perish, the Rabbis were concerned that the husband might have surfaced somewhere down the river, unbeknownst to us. Tosafot (Yevamot 36b s.v. Ha) note that a significant minority (mi’ut hamatzui) of husbands might have been saved in such situations. Thus, in any situation where no remains were found, the wife may not remarry if a significant minority of people could have survived her husband’s situation. Although the Halachah normally follows the rov (majority; see Chulin 11), Tosafot explain that the Rabbis treated the case of a missing husband especially strictly due to the severity of adultery (which would result if the woman “remarried” when her husband was still alive).
Nonetheless, once it has been proven that a husband entered a situation in which most people die, there are many circumstances that can permit his wife to remarry. For example, the Shulchan Aruch (E.H. 17:23), based on the Mishnah (Yevamot 122a), presents a situation where people witnessed a man from afar proclaim, “I, so-and-so the son of so-and-so, have been bitten by a snake and am about to die.” The people later discovered an unrecognizable body. The Mishnah permits the wife to remarry even though the man’s body was not positively identified at a later time. Rav Jonas Prager (The Journal of Halacha and Contemporary Society 44:5-30) records that the beit din of the Belzer community released a woman from the status of agunah based on similar circumstances, even though the husband’s body was not yet found. The husband, who was trapped in the World Trade Center, called a friend on his cellular phone and said that he was about to die. He remained on the phone until the moment of death.
The first step for a beit din to issue a lenient ruling in such a case is to establish that husband and wife were at peace with each other, in order to guarantee that the man had no apparent motivations to flee his family (see Mishnah, Yevamot 114b). Rav Yechezkel Landau (Teshuvot Noda Biy’hudah, E.H.2: 47) adds that the beit din should investigate whether the man established a regular pattern of returning home each day after work or immediately after a brief trip. Rav Landau explains that once this is established, then there are serious indications (raglayim ladavar) that the husband is no longer alive. Rav Landau explains:
Although this is insufficient basis upon which to issue a permissive ruling, nonetheless, it is point of departure from which it is appropriate to search for leniencies within the Halachah [to permit the woman to remarry].
After determining that the couples were all at peace, the Beth Din of America then sought to establish that each husband was in a section of the World Trade Center where very few or no people survived at the time of the terrorist attacks. This goal was accomplished by finding e-mail messages (as noted by Rav Ovadia Yosef in his responsum on the World Trade Center agunot), telephone calls, or eyewitnesses. For example, Rav Ovadia Yosef verified a husband’s presence in the World Trade Center based on the fact that the man called his wife from there after the plane hit the North Tower, stating that he was evacuating his office in the North Tower, which was located above the ninety-second floor.
In a less simple case, one husband phoned his wife that he arrived in his office in the North Tower (above the ninety-second floor) at 8:20 A.M. and was not heard from subsequently. Accordingly, he clearly arrived at work before a plane hit his building, but there is no evidence that he was in the building at the time the plane hit it. Rav Zalman Nechemia ruled that one may rely on the halachic principle of chazakah (that the status quo was maintained). Halachah permits relying upon the status quo (chazakah) unless there is a rei’utah (a disturbance to the chazakah). For example, we routinely rely upon the validity of an eruv on Shabbat based on an inspection that took place before Shabbat, as normally there is no reason to believe that the eruv was damaged since its last inspection. Regarding the World Trade Center, the assumption that there was no disturbance to the chazakah applies to those who were in the North Tower before 8:46 A.M., but not to the South Tower’s occupants, as many people evacuated the South Tower after the North Tower was hit.
Rav Mendel Senderovic (in the aforementiond Kol Zvi) writes that it appears difficult to rely on chazakah in cases of agunot, as the Halachah does not permit relying upon rov in such situations. In general, the Gemara (Kiddushin 80a) states that a rov is more effective than a chazakah, so it appears obvious that the Halachah cannot rely upon chazakah to permit an agunah to remarry. Rav Senderovic cites that Rav Yitzchak Elchanan (Teshuvot Ein Yitzchak 2:1) did not rely upon chazakah alone to permit an agunah to remarry. However, in Rav Yitzchak Elchanan’s case, he ruled leniently as there was also a rov upon which to base a leniency. Rav Yitzchak Elchanan asserts that a combination of a rov and chazakah may be relied upon to permit an agunah to remarry. In the World Trade Center situation, Rav Senderovic argues that in addition to the chazakah there exists a rov that if the missing husband actually survived he would have contacted his family. Thus, while he questions Rav Zalman Nechemia’s reasoning, Rav Senderovic does not challenge his actual lenient ruling.
Once they established that the husband in question was in the World Trade Center during the attacks, the Beth Din of America began exploring ways to establish that he indeed perished, rather than viewing the World Trade Center as parallel to mayim she’ein lahem sof. The Shulchan Aruch (E.H. 17:30), based on the Gemara (Yevamot 121b), rules that one who witnessed a husband fall into a cauldron of fire may testify that the husband died. The Beit Shmuel (17:92) cautions, though, that this ruling obviously applies only to a fire from which the husband would be unable to extricate himself. Once it has been proven that the husband entered a situation that no person could survive, the Halachah does not concern itself with the possibility that a miracle occurred and the husband was saved in defiance of the laws of nature.
Rav Ovadia Yosef ruled that those who were caught at or above the floors where the hijacked planes hit the World Trade Center parallel the case of one who fell into a burning cauldron. A huge fire erupted upon impact, as the terrorists chose very large planes that were on cross-country flights and thus held huge amounts of fuel. Those individuals who were unfortunately caught at that point can be described as being trapped in a cauldron of fire. Rav Gedalia Schwartz adds that although we did not see the individual husbands being trapped in the fire, knowledge that they were located in the relevant area constitutes sufficient evidence of their death. Rav Schwartz compares this situation to a case cited in the Otzar Haposkim (6:255) in which a fire erupted on a ship. The Tzeil Hakesef (2:4) permitted the wife of a prisoner who was held in the bottom of the boat to remarry. Despite the fact that witnesses did not actually see her husband being engulfed by the fire, he could not have possibly survived because he was shackled in chains, with no possibility of escape.
Rav Gedalia Schwartz suggested another avenue of leniency, which Rav Ovadia Yosef also adopted. The Gemara (Yevamot 114b) rules that a wife who asserts that her husband died in a building collapse is believed only if she also states that she buried him (see Shulchan Aruch, E.H. 17:51). The Gemara explains that we do not believe her otherwise, lest she actually know only that he was in the building and erroneously assumes that he died in its collapse. The Gemara’s ruling seemingly complicates attempts at permitting the World Trade Center agunot to remarry, as the husband’s presence in a building during its collapse does not prove that he died.
Nonetheless, a responsum from World War I demonstrates that there are situations where a husband’s presence in a collapse constitutes sufficient proof of his death. Rav Avraham Yitzchak Kook (Teshuvot Ezrat Kohein 25, cited in Otzar Haposkim 8:83) was presented with a case in which a Jewish soldier was in a railway station that was attacked by German artillery, resulting in a mountain of dirt falling upon the building. Among his reasons for permitting the wife to remarry, Rav Kook suggests that only in the case described by the Gemara and Shulchan Aruch does the building collapse not constitute evidence of death, because there was a possibility that the husband was not hit by the collapsing building materials. Thus, it is analogous to mayim she’ein lahem sof, where most people die, but the woman may not remarry because her husband could have been one of the significant minority who survived. However, in the case presented to Rav Kook, the mound of dirt was so massive that it was impossible to survive the collapse.
Similarly, Rav Meir Arik (Teshuvot Imrei Yosher 2:24) determined that there could not be any survivors when a particular train fell off a bridge while transporting troops. Hence, he ruled that demonstrating a husband’s presence on the train constituted sufficient proof that he perished. In light of Rav Kook’s and Rav Arik’s responsa, Rav Schwartz and Rav Ovadia argued that even if the husband somehow survived the fire on the top floors of the World Trade Center, he would have been inevitably killed by the collapse of the Twin Towers or by falling from a very high story.
Moreover, the Aruch Hashulchan (E.H. 17:247) raises the possibility that in a case where people thoroughly searched the rubble of a collapsed building for survivors and did not find the husband, then one may assume that he perished in the building collapse. Rav Ovadia applies this ruling in the case of the World Trade Center tragedy, as an extensive and sophisticated search was conducted for survivors.
Six Leniencies Regarding Mayim She’ein Lahem Sof
Moreover, there are at least six potential ways to distinguish between the situation of mayim she’ein lahem sof, in which the Gemara forbids the woman to remarry, and disasters such as the World Trade Center attacks. First, Tosafot (Avodah Zarah 40b s.v. Kol and Yevamot 36b s.v. Ha, but see Bechorot 20b s.v. Chalav) explain that Chazal were strict in a case of mayim she’ein lahem sof because the husband may have survived the calamity in a significant minority of cases. However, very few, if any, individuals who were at or above the point of the planes’ penetration survived the attacks. Thus, the stringency that Chazal applied to mayim she’ein lahem sof might not apply to the World Trade Center tragedy. Moreover, even if there is doubt as to whether a situation should be equated with mayim she’ein lahem sof, the Taz (E.H. 17:48), Beit Shmuel (17:105) and Aruch Hashulchan (E.H. 17:224) rule leniently, since the prohibition to remarry in a case of mayim she’ein lahem sof is only rabbinic in nature.
Second, Rav Moshe Feinstein (Teshuvot Igrot Moshe, E.H. 1:43) suggests a novel interpretation of mayim she’ein lahem sof in the course of his ruling regarding husbands who disappeared in the Holocaust. Rav Moshe argues that Chazal issued the stringency of mayim she’ein lahem sof only in situations that generally involve individuals, such as an individual being swept away in a body of water with no visible boundary. However, Rav Moshe contends, Chazal did not legislate the same concern for a significant minority of survivors in situations that involve many people, [even if the large group entails a similar statistical probability of perishing in mayim she’ein lahem sof.]
Thus, Rav Moshe rules that if there is adequate knowledge that a husband was taken to a Nazi concentration camp and has not been heard from in the years following World War II (and there is no reason to believe that the husband was living in the Soviet Union), then the wife may remarry, even though a minority of people did survive the concentration camps. Similarly, one could argue that the status of mayim she’ein lahem sof does not apply to the World Trade Center tragedy because so many people were involved.
Interestingly, Rav Moshe comments that his quite lenient approach to the agunot of the Nazi Holocaust is motivated in part by his concern that a strict ruling might be too difficult for most of these women to bear. Rav Moshe notes that the Or Zarua (Hilchot Agunah 693) already alludes to this concern. Rav Moshe observes that if this concern was relevant in the time of the Or Zarua, then it is most certainly relevant in the modern era.
Third, many Acharonim develop the idea that the stringency of mayim she’ein lahem sof does not apply in a situation where there are trei rubei (two majorities), two factors each of which is probably true and if either is true, then it alone would prove that the husband died. For example, Rav Chaim of Volozhin and other eminent rabbis in Vilna (cited by the Pitchei Teshuvah (E.H. 17:133) were consulted regarding a man who fell from a tall bridge onto ice and subsequently fell from the ice into water with no visible boundary. Although no body was ever found, Rav Chaim ruled leniently, as there were trei rubei in this situation: most people who would fall from the bridge onto the ice would perish, and most people who are swept into water with no visible boundary (and are not found) have perished. If the probable result occurred at either stage, it would mean that the man died.
The Pitchei Teshuvah (ibid.) notes that some Acharonim do not subscribe to this leniency. In fact, many Acharonim point out that Tosafot (Yevamot 121a s.v. V’lo) appear to reject reliance on trei rubei. Tosafot note that the Gemara (Yevamot 121a) prohibits remarriage even when a renowned Torah scholar was lost in mayim she’ein lahem sof, despite the fact that word would usually spread if a Torah scholar survived, with his wife thus being informed of his survival. Accordingly, there exist trei rubei to permit the woman to remarry, since a majority of those who are lost in a mayim she’ein lahem sof have perished and a majority of Torah scholars who survive are known to have survived. Nevertheless, the Gemara forbids the wife of a missing Torah scholar to remarry! Rav Yitzchak Elchanan (Teshuvot Be’er Yitzchak, E.H. 18; Teshuvot Ein Yitzchak, E.H. 1:22 and 2:1) defends the trei rubei leniency by distinguishing between the case of the Gemara and that of Rav Chaim of Volozhin. The two factors of Rav Chaim of Volozhin emerged virtually simultaneously, whereas the trei rubei of the Gemara’s case do not. The second “majority” in the Gemara’s case emerges only after time, when it is realized that word has not come that the renowned Torah scholar has survived.
Many poskim have come to accept reliance on trei rubei, as Rav Zalman Nechemia notes in his World Trade Center responsum (see Teshuvot Heichal Yitzchak, E.H. 2:8). Rav Simcha Zelig Rieger, a dayan in Brisk, Lithuania, in the early twentieth century, writes that trei rubei has become an accepted approach in Halachah provided that the husband has been missing for quite some time (Devarim Achadim 43, cited in Teshuvot Yabia Omer, E.H. 7:14). Rav Moshe Feinstein (Teshuvot Igrot Moshe, E.H. 1:48) applies this principle to a case where a plane crashed into the English Channel during World War II, and Rav Ovadia Yosef (Teshuvot Yabia Omer 6:4) similarly employs it in a case where an Israeli pilot’s plane was shot down by enemy fire and fell into the sea. In both cases there were trei rubei, as most will die if their plane crashes into the sea and most people who are lost at sea (mayim she’ein lahem sof) will not survive in the water. Rav Yitzchak Herzog (Teshuvot Heichal Yitzchak, E.H. 2:8) applies this principle in a case where a car plunged down a steep incline and into the sea in Milan, Italy.
Rav Ovadia Yosef applies trei rubei to the World Trade Center attacks. He reasons that most (if not all) people at or above the point of the plane’s impact perished, and most (if not all) of those who survived were discovered by the rescuers who made an extraordinary effort to rescue any survivors. Rav Ovadia adds that even if the application of trei rubei is not appropriate, one may rely upon a s’feik s’feika (a double doubt): the husband might have perished in the fire, and if he survived the fire, then he might have died falling down. Rav Ovadia thoroughly reviews the dispute among the Acharonim regarding whether a s’feik s’feika is a valid halachic tool for resolving agunah situations. He concludes that it is certainly a valid principle according to Sephardic tradition, and the World Trade Center case that Rav Ovadia discusses involved a Sephardic husband.
A fourth avenue of leniency is an approach that is often quoted in agunah cases of the past 150 years. The Gemara (Yevamot 121a) is strict in the case of mayim she’ein lahem sof because of concern that the husband has survived unbeknownst to his wife. Rav Ashi suggests that perhaps we might be lenient in case of the wife of a renowned Torah scholar because if he survived word would have spread of his survival. This Gemara reflects the reality that even during times of poor communication, Jews managed to spread the information about a great Torah scholar.
Although the Gemara ultimately rejects Rav Ashi’s position, the Terumat Hadeshen (Pesakim 139) suggests that in his time (the late medieval period) there was more reason to be lenient because changes in where Jews lived enabled better communication than during the Gemara’s time. He reasons that the Gemara did not wish to distinguish between a wife of a Torah scholar and others because of the principle of lo plug (that the Rabbis do not make special exceptions to their rules). However, reasons the Terumat Hadeshen, in a time of improved communication, the reasoning that a husband’s surviving mayim she’ein lahem sof would be communicated to the wife applies to everyone equally, so there should not be any need to rule strictly in cases of mayim she’ein lahem sof.
The reasoning of the Terumat Hadeshen was not accepted as normative (see Shulchan Aruch E.H. 17:34). Nonetheless, the Chatam Sofer (E.H. 1:58, cited in the Pitchei Teshuvah, E.H. 17:135) argues that more room existed to be lenient in his day (the early nineteenth century), as post offices functioned in every village and newspapers spread news throughout the world. If the husband survived, then he or the local rabbi would have had an opportunity to send a letter or advertise in a newspaper in order to publicize his survival. Thus, not hearing from someone who was lost in mayim she’ein lahem sof would prove that he perished. This approach of the Chatam Sofer engendered much discussion, which is summarized by Rav Ovadia Yosef (Teshuvot Yabia Omer E.H. 7:14:7 and his responsum in Kol Zvi).
Rav Moshe Feinstein (Teshuvot Igrot Moshe, E.H.1:43,48), writing about the agunot from the Nazi Holocaust, states that in his time, there was even more reason for leniency than in the time of the Chatam Sofer, as methods of communication had made many strides. Rav Ovadia, writing in regard to the World Trade Center tragedy, asserts that the logic for leniency is even greater in 2001, as telecommunications and other methods of communication have improved immensely.
We should note that poskim do not rely on this line of reasoning alone, as it would completely eliminate a rule from the Gemara, something poskim are loath to do. Furthermore, relying on this line of leniency increases the pressure on the beit din to definitively establish that the husband and wife were on good terms before the husband’s disappearance, lest the husband has taken advantage of the tragedy to disappear and establish a new identity.
A fifth avenue of leniency is the opinion of Rav Eliezer of Verdun (cited in Teshuvot Zichron Yehudah 94 and Mordechai, Yevamot 92). He acknowledges that the Gemara forbids the wife to remarry in any case of mayim she’ein lahem sof. However, he argues, the Gemara does not say that she is forbidden forever. Thus, he reasons, if after a very long period of time it seems obvious to the great rabbinical authorities of the time that the husband has died, then the rabbis have the right to permit the wife to remarry. Rav Eliezer of Verdun reports that he relied upon this in a case when a husband was lost at sea and had not been heard from in four years.
Poskim have vigorously debated the cogency of this argument. The Mordechai (ibid.) cites two major authorities who oppose Rav Eliezer of Verdun’s leniency. The Beit Yosef (E.H. 17 s.v. Nafal) rejects it entirely, claiming that lacks any basis in the Gemara. Other authorities, however, such as the Mahri Bei Rav (Teshuvot 13) and the Mabit (Teshuvot 1:187), defend Rav Eliezer of Verdun’s view. In practice, poskim from the time of Rav Yechezkel Landau (Teshuvot Noda Biy’hudah E.H. 2:47) through Rav Moshe Feinstein (Teshuvot Igrot Moshe E.H. 1:43), Rav Tzvi Pesach Frank (Teshuvot Har Tzvi E.H. 1:65) and Rav Ovadia Yosef (Teshuvot Yabia Omer E.H. 7:14) use the leniency of Rav Eliezer of Verdun as a senif lehakeil, an additional reason to be lenient. However, as noted by Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 15:59), poskim disagree about the length of time it is necessary to wait before concluding that the missing husband is dead: one year, two years, or four years. In the case of the World Trade Center tragedy, Rav Ovadia Yosef advised the Beth Din of America to wait a year before issuing permission for the agunah to remarry.
Finally, a sixth avenue of leniency is the approach of Shevut Yaakov (3:110). He notes that, in a case of mayim she’ein lahem sof, if the woman mistakenly remarried, then b’dieved (post facto) the Gemara (Yevamot 121b) does not require her to separate from her new husband. The Shevut Yaakov further notes the Talmudic principle that sh’at had’chak k’b’dieved dami, in a case of great need one may permit that which is normally permitted only post facto. The Shevut Yaakov reasons that when an agunah is a young woman and anxiously wishes to remarry, a great need exists that justifies permitting that which is normally permitted only b’dieved. Thus, he suggests that the young agunah should be permitted to remarry in such a situation. This ruling of the Shevut Yaakov engendered much discussion and controversy (see Otzar Haposkim 7:37-39), and, in practice, many poskim use this leniency as a senif lehakeil. Indeed, the Shevut Yaakov himself uses this point only as one of several lenient considerations. Rav Yonah Reiss notes that many of the agunot from the World Trade Center attacks were young women, so the approach of the Shevut Yaakov functioned as a minor consideration in the rulings of the Beth Din of America.
No Empirical Evidence That the Husband Was There
The most difficult task faced by the Beth Din of America was one situation where the Beth Din was unable to discover any empirical evidence that a particular missing husband was inside the World Trade Center at the time of the attacks. The Beth Din investigated the possibility of identifying a pattern in the husband’s daily routine that would prove he arrived at work. Using various travel records, Rav Yonah Reiss was able to prove that the man routinely entered his office during August end early September a few minutes before the time of day when the attacks occurred. It was after making this determination that DNA identification was made on the missing husband’s remains.
Several Responsa serve as precedents for asserting that a man followed his regular routine. Rav Yitzchak Herzog (Teshuvot Heichal Yitzchak, E.H. 2:9:2) considers the possibility of partially relying on a husband’s patterns to determine that a man was at a particular place where a bridge collapsed into the water. He notes that the Taz (Yoreh Deah 69:24) rules that if a woman is unsure if she salted a piece of meat before she cooked it, she may assume that she followed her normal pattern of salting the meat. As a precedent, the Taz cites the Gemara’s ruling (Berachot 16a) that if one is reading the Shema and is unsure if he has read the verse of “Uch’tavtam” from the first section of Shema or the second section, the doubt is resolved if he had begun to read the verse of “L’ma’an yirbu,” which follows “Uch’tavtam” in the second section (see Devarim 6:9 and 11:20-21). Since people normally recite Shema in the proper order, a person may assume that he followed his usual routine and proceeded to the next verse of the second section because he had recited everything until then.
Rav Herzog ultimately rejects the analogy between the Taz’s ruling and an agunah situation. Meat that was cooked without proper salting is prohibited only on a rabbinic level, whereas here we wish to rely on the husband’s routine in order to permit the woman to remarry, which could lead to a violation of the Biblical prohibition of adultery. Hence, the Taz’s lenient ruling regarding the salting of meat cannot serve as a precedent for permitting an agunah to remarry. The routine of one who is reading Shema also differs from the husband’s situation, because we know for sure that the person began reciting Shema, and we merely doubt which verse he was reading. Regarding the agunah, however, we do not know if the husband crossed over the bridge at all on the day of its collapse.
Despite his inability to demonstrate from the Taz that we may rely on a husband’s patterns, Rav Herzog concludes that the woman in this case may remarry, by combining the likelihood of the husband following his routine with other lenient considerations that existed in that case.
Rav Yehoshua Ehrenberg (Teshuvot Devar Yehoshua vol. 3 E.H. 13) relies on a similar approach, determining that a husband’s usual pattern of travel to work placed him at the point where a terrorist attack occurred in Tel Aviv in 1950, and combining this information with other lenient factors, he issued a lenient ruling. Rav Schwartz and Rav Zalman Nechemia rule that this approach may be used as a consideration to be lenient in the World Trade Center case. We might add that there is actually more reason to be lenient regarding the World Trade Center, as the Beth Din of America thoroughly documented the missing husband’s travel patterns in the months of August and September, with a level of detail that was not provable in the situations addressed by Rav Herzog and Dayan Ehrenberg.
Conclusion
Every tragedy that befalls the Jewish People adds another layer to the voluminous literature regarding the status of agunot. In the case of the attacks of September 11, 2001, the Beth Din of America was ultimately able to permit all of the agunot to remarry. We hope and pray to God that the World Trade Center tragedy should be the last of these tragedies and that the days of the Messiah should arrive, when the halachic literature regarding agunot will be of purely theoretical interest.
Chatzitzot and Tevilah
Part I: General Discussion
This chapter begins our discussion of tevilah, proper immersion of one’s body in a mikvah (ritual bath). We focus on the laws of chatzitzot, obstructions between one’s skin and the water, which have the potential to invalidate the tevilah (immersion). Due to their complexity, many of these issues require the attention of a major halachic authority if they arise.
Talmudic Background
While describing the purification of a man who ejaculated semen, the Torah (Vayikra 15:16) teaches, “He shall immerse all of his flesh in water and remain unclean until the evening.” The Gemara (Eruvin 4b) derives from the words “all of his flesh” that nothing may separate between the person’s flesh and the water. The Gemara limits this problem of separating flesh from water to objects that meet two conditions: they must cover a majority of the body, and the person must object to their presence there (rubo umakpid). It adds, however, that the Rabbis legislated to invalidate a tevilah even when only one of these conditions exists, lest people erroneously permit chatzitzot that meet both conditions. If an object touches only less than half of the body and one does not mind its presence (mi’ut ve’eino makpid), then it does not even constitute a chatzitzah on a rabbinic level since it meets neither condition.
Mi’ut Ve’einio Makpid
Nevertheless, the Rama (Yoreh Deah 198:1) writes that one preferably should not immerse even with a chatzitzah that the Rabbis did not forbid (such as mi’ut ve’eino makpid). Although this stringency has no source in the Gemara, it has been adopted it as a minhag (custom). However, both the Chochmat Adam (119:3) and Aruch Hashulchan (Yoreh Deah 198:9) comment that in a situation of great need, a woman need not adhere to this stringency and may immerse with an object covering less than half of her body, provided that its presence does not bother her.
If one is not bothered by an object’s presence, Rashi (Eruvin 4b s.v. V’she’eino) explains that it does not constitute a chatzitzah because “it becomes an inherent part of the body,” rather than an external addition. Over the past two centuries, authorities have debated for how long a foreign object must be attached to the body in order for it to become part of that body. The Chelkat Yoav (Yoreh Deah 1:30) asserts that if the obstruction is intentionally kept on the body for more than seven days and is only a chatzitzah on a rabbinic level - such as cotton placed in the ear - it is considered an integral part of the body and is not a chatzitzah (even rabbinically). He bases his ruling on the laws of Shabbat, where, according to many authorities, a knot that remains in place for more than seven days is considered “permanent” (shel kayamah) on a rabbinic level (Rama, Orach Chaim 317:1). Similarly, the Chelkat Yoav argues that a foreign object is considered permanently attached to a person if it remains in place for more than seven days, so it does not invalidate immersion as a chatzitzah unless it meets the Biblical criteria for a chatzitah (covering a majority of the body and bothering the person).
The Chelkat Yoav’s opinion has generated much discussion. The Avnei Neizer (Yoreh Deah 262) contends that a foreign object loses its status as a chatzitzah only after being attached to the body for longer than six months. He explains that the Rabbis legislated rabbinic chatzitzot lest one accidentally immerse while covered by a Biblical chatzitzah. Accordingly, if we permit tevilah with an object that has been present for seven days, then people might immerse while covered by a Biblical chatzitzah, erroneously believing that even a Biblical chatzitzah becomes a part of the body after seven days.
In all of his responsa about chatzitzot, Rav Moshe Feinstein does not accept any variation of the Chelkat Yoav’s opinion. Indeed, Rav Moshe even writes in one place that he does not understand why a chatzitzah should lose its status after a set amount of time if the Gemara does not stipulate an amount of time for this purpose (Teshuvot Igrot Moshe, Y.D. 1:97:1). Rav Shlomo Zalman Auerbach (cited in Nishmat Avraham, Yoreh Deah 198:1) adopts a compromise approach. He notes that poskim generally base their rulings on what seems to be the standard of the Beit Yosef (Orach Chaim 317), that if a knot is tied for more than thirty days, it is viewed as permanent (at least on a rabbinic level). Similarly, a foreign object is not considered a chatzitzah if it is attached for more than thirty days.
Objective vs. Subjective
The Rishonim debate whether to define hakpadah, objection to the presence of a foreign object, subjectively or objectively. The Rambam indicates that if the individual immersing does not object to the item’s presence, even if others would find it objectionable, it is considered eino makpid (not objectionable). On the other hand, the Rashba (Torat Habayit 7:7) and the Tur (Yoreh Deah 198) rule that if most people would object to an item’s presence, then they set an objective standard for hakpadah; an individual’s own preferences are nullified by the majority’s perceptions (batlah da’ato eitzel rov bnei adam).
In practice, the Shulchan Aruch (Yoreh Deah 198:1) adopts the opinion of the Rashba and the Tur. The Shach (198:2) rules that we must act strictly in accordance with the views of both the Rambam (as interpreted by the Beit Yosef) and Rashba. Thus, an item constitutes a chatzitzah either if most people would object to its presence or if this individual finds it objectionable.
An Object that Comes Off by Itself
A question often arises regarding whether something is considered a chatzitzah if it normally falls off by itself. Rashi (Shabbat 15b s.v. Bichli) writes that people do not object to the presence of items that fall off by themselves, so they do not constitute chatzitzot (on less than half of the body). Contemporary authorities discuss possible applications of Rashi’s principle to contemporary situations, such as stitches that come off “automatically” by dissolving. In another example, Rav Tzvi Pesach Frank (Teshuvot Har Tzvi, Yoreh Deah 163) rules that iodine that has discolored one’s skin is not a chatzitzah because it dissipates by itself.
Beit Hasetarim and Balua
A foreign object can constitute a chatzitzah even on some parts of the body that are not normally exposed to the mikvah waters. These areas, known as batei hasetarim (Nidah 66b), include the outer ear canal and inside the nose and mouth. Although the mikvah waters need not actually come in contact with the batei hasetarim, the Gemara nonetheless requires that no intervening substance preclude the theoretical possibility of such contact.
The Rishonim (commenting on Kiddushin 25a) debate whether the rules of batei hasetarim are Biblical or rabbinic in nature. Tosafot (s.v. Kol) detail how these laws can be derived from verses in the Torah, implying that they are Biblical. On the other hand, the Ramban, Rashba, and Ritva believe that they are rabbinic; on a Biblical level, they maintain that water does not even need the theoretical ability to enter batei hasetarim. The Acharonim disagree concerning which opinion to follow. The Avnei Neizer (Yoreh Deah 260) rules like Tosafot that they are from the Torah, whereas Rav Akiva Eiger (Teshuvot, Mahadura Kama 60) rules that they are actually rabbinic. One’s ability to rule leniently concerning questionable areas of chatzitzot in the areas of batei hasetarim depends on this dispute. If the chatzitzah is situated in a beit hasetarim, there is considerable room to be lenient assuming these rules are only rabbinic (see, for example, Nishmat Avraham, Yoreh Deah 198:12).
Many Acharonim discuss precisely which body parts qualify as batei hasetarim. Rav Akiva Eiger (198:7 s.v. Liflof) writes that these halachot apply only to “places that sometimes are exposed,” such as the eyeballs or mouth. Places that are never exposed, however, such as the inner recesses of the ear and nose, do not even need the theoretical possibility of touching the water. Rav Yechezkel Landau (Teshuvot Noda Biy’hudah, Yoreh Deah 1:64, cited by Pitchei Teshuvah 198:16) presents a similar approach to that of Rav Akiva Eiger.
Refuyah - Looseness
In order to invalidate the tevilah, a chatzitzah must cling to the body, whereas an object that is loosely attached (refuyah) does not constitute a chatzitzah (see Mikvaot 8:5 and Shulchan Aruch, Yoreh Deah 198:28). Thus, a woman may theoretically immerse while wearing loose-fitting clothing (see Shulchan Aruch, Yoreh Deah 198:46 and Shach 198:56). A competent rabbinical authority should be consulted should a need arise to rely on this ruling, as it is often difficult to determine the precise definition of the term “loose.”
Earplugs
Acharonim have suggested several ways to allow tevilah for women who cannot expose their ear canals to water. The outer part of the ear canal is considered a beit hasetarim. Thus, based on the criteria described above, water must theoretically be able to enter the canal, but it need not actually do so during her immersion. Dr. Avraham S. Avraham (Nishmat Avraham 198:12) reports that Rav Shlomo Zalman Auerbach permitted placing loose-fitting cotton in the ear. It does not constitute a chatzitzah, based on the concept of refuyah described above. Following the immersion, the cotton should immediately be removed in order to prevent the entry of water into the ear canal. Of course, an ear, nose and throat specialist should be consulted to determine that this procedure does not endanger the individual in question.
Rav Tzvi Pesach Frank (Teshuvot Har Tzvi, Yoreh Deah 170) writes that the cotton should be placed so deep within the ear that its location will not even be considered a beit hasetarim. In this deep position, the cotton will be balua (completely absorbed within the body), so the tevilah will be valid even if water cannot possibly reach that part of the ear. Also, he requires the woman to place the cotton in her ear for a week before the tevilah so that it is considered “non-objectionable” (eino makpid). The cotton should remain in her ear for a few days after the tevilah, as well, further showing that she does not object to its presence.
It should be noted that Dr. Yisrael Bramma (an Israeli ENT specialist) warns that, from a medical perspective, it is not advisable to keep cotton in one’s ear for an extended period of time (Techumin 5:227). A competent specialist should therefore be consulted should this situation arise.
Rav Moshe Feinstein (Teshuvot Igrot Moshe, Yoreh Deah 1:98-103) presents a solution that he defends at length. He permits immersing immediately after inserting cotton somewhat deeply within the ear canal, without waiting a week between the cotton’s placement and the tevilah. Rav Moshe (Y.D. 1:98) proves that cotton in an ear cannot constitute a chatzitzah, from the Mishnah (Shabbat 64b), which permits a woman to wear a small piece of cotton in her ear when she walks into the public domain on Shabbat. The Gemara prohibits wearing chatzitzot in public domains on Shabbat, so apparently a piece of cotton is not a chatzitzah.
Although Rav Moshe’s proof seems textually compelling, it appears to contravene the principles that we have presented for batei hasetarim. After all, we have already noted that water must be able to theoretically enter batei hasetarim, such as the ear canal. Does the cotton not preclude this possibility and thus invalidate the tevilah? Rav Moshe solves this difficulty by distinguishing between two types of chatzitzot. Some items, such as nail polish, actually attach themselves to the nail, whereas others, such as cotton in the ear, remain separate from the skin while still preventing contact between the skin and water.
Although the presence of either type of chatzitzah on the body invalidates a tevilah, Rav Moshe suggests that only the former type presents a problem when found in batei hasetarim. He explains that when a chatzitzah is not physically attached to the body, it could theoretically be moved to allow water to enter. Accordingly, if someone immerses with cotton in his ear canal, the canal was theoretically fit for water to enter. Although no water will actually touch the canal’s skin, a tevilah is effective as long as water has the theoretical possibility to enter the batei hasetarim. Of course, if the cotton were on the outside of the body, it would invalidate the tevilah because water must actually touch all exposed skin.
In order to prove his distinction, Rav Moshe develops an original interpretation of the rule that one may close one’s mouth and eyelids during tevilah, provided that one does not close them too tightly. Logically, we would expect closing the mouth to invalidate the tevilah, for the water needs the theoretical ability to enter the mouth (a beit hasetarim). Closing the lips and eyelids blocks the water’s path to these batei hasetarim. Rav Moshe’s approach provides a rationale for this law. Closed lips are the type of chatzitzah that does not seal off the beit hasetarim, because the person could theoretically open his mouth.
Rav Moshe thus concludes that a pad placed somewhat deeply within the ear canal is merely a barrier to water entering the ear, but it is not attached to the ear. Hence, it does not prevent the ear canal from being “capable of coming into contact with water.” Based on his line of reasoning, Rav Moshe (Igrot Moshe, Yoreh Deah 1:104) claims that, fundamentally, contact lenses do not constitute a chatzitzah, although he requires removing them, when possible, to eliminate any doubt.
Dr. Yisrael Bramma (Techumin 5:275-279) suggests a different approach to the problem. In most situations that the ear canal must be kept dry, surgery can repair the eardrum. He claims that this procedure entails minimal risk - far less than the ongoing danger of having an ear that cannot get wet - and can improve the woman’s hearing while removing a major safeik (halachic doubt). In cases where the ear’s damage is too severe for this minor surgery, Dr. Bramma suggests placing antibacterial drops in the ear before and after the tevilah in order to prevent infection. He adds that a woman must consult her rabbi and doctor for guidance regarding how to handle these more severe situations.
Casts
Casts present one of the most difficult chatzitzah problems. Dr. Avraham (Nishmat Avraham, Yoreh Deah 198:4) writes that one should try to have a cast removed before tevilah. Rav Zalman Nechemia Goldberg told me that he agrees with this assertion.
If removing the cast is not possible, Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 4:9) rules that it is not considered a chatzitzah. He reasons that it does not cover a majority of the body, and one does not object to its presence (mi’ut v’eino makpid) since it is necessary for medical purposes. Even though most people would find a cast “objectionable” and would want it to be removed, they realize its importance and therefore accept its presence. The Rama (Y.D. 198:17) explains, “A shocheit or butcher whose hands are soiled with blood is not considered to have a chatzitzah on him, since most people in those fields do not object to the presence of blood on their hands.” A similar argument can be made concerning those who are wearing casts.
On the other hand, Rav Frank (Teshuvot Har Tzvi, Yoreh Deah 165) cites the Sidrei Taharah’s claim that if a woman fundamentally would not want a particular foreign object on her body, it is considered objectionable even if she presently wishes to leave it on herself for medical reasons. Thus it follows that a cast should constitute a chatzitzah, as people normally would object to a cast’s presence, if not for its medical function. This argument is based on the Shulchan Aruch’s ruling (198:10) that plaster on a wound constitutes a chatzitzah.
However, other Acharonim interpret the Shulchan Aruch’s ruling differently. The K’tav Sofer (Y.D. 1:91) claims that the plaster constitutes a chatzitzah only because it is removed occasionally in order to inspect the wound. On the other hand, if a cast is going to be in place for a considerable amount of time, then it is possible to say that it is not a chatzitzah. Rav Frank concludes that one should avoid immersion while wearing a cast, but he permits doing so in cases of great difficulty. The issue of casts remains very sensitive, so an eminent Rav must be consulted in situations where a cast cannot be removed.
In practice, one other critical factor exists regarding casts. Rav Gidon Weitzman has informed me that more modern casts have been developed that allow water to reach the skin underneath without damaging the cast. Therefore, before a woman has a cast attached to herself, she should consult a competent rabbi and her doctor in order to arrange for a cast that will pose the fewest possible halachic problems.
Splinters
The Mishnah (Mikvaot 10:8; codified in Shulchan Aruch, Yoreh Deah 198:11) rules that a splinter constitutes a chatzitzah only if it is visible. If it remains beneath the skin, and it cannot be seen, then it is not a chatzitzah, as it is balua (absorbed within the body). The Tur (Y.D. 198) and Taz (Y.D. 198:15) note that even if the splinter can be seen through a thin layer of skin, it ceases to be a chatzitzah once the skin covers it completely.
Conclusion
In the matters of nidah it is tempting to rule strictly “just to be on the safe side.” Rav Mordechai Willig reports that he heard directly from Rav Moshe Feinstein that it is forbidden to rule strictly on issues of nidah “just to be safe,” because stringency in this area presents a barrier to the mitzvot of onah (a husband’s conjugal responsibilities) and peru urevu (procreation). On the other hand, one cannot simply rule leniently without adequate support from halachic sources. Highly competent rabbis, therefore, must be consulted when these complex issues arise.
Part II: Teeth and Fingernails
Continuing our discussion of the laws of chatzitzot, we now discuss how they apply to dental fillings, braces, and fingernails. The status of dental work, especially temporary work, within the laws of chatzitzot has generated considerable debate.
Permanent Fillings
The Chochmat Adam (119:18) presents an extraordinarily stringent ruling by asserting that even a permanent filling constitutes a chatzitzah. Rav Yaakov Ettlinger (Teshuvot Binyan Tziyon, Chadashot 57) advises to act strictly in accordance with the Chochmat Adam’s view, although he adds that one should not castigate those who do not treat it as a chatzitzah. These two poskim reason that the woman would not have wanted the filling if not for her mouth’s medical needs. Hence, the filling constitutes a chatzitzah on a rabbinic level, just like any item whose presence on a minority of the body is objectionable (see previous chapter).
Almost all authorities have rejected this ruling, and they present a number of reasons to be lenient. The Maharsham (1:79) argues that it is nearly impossible for a woman to remove the filling herself, without the help of a dentist, so the filling can thus be considered a permanent feature of her body. Accordingly, the filling is not a chatzitzah. Moreover, the filling does serve a non-medical purpose, since its removal would disfigure the woman’s teeth, so it surely should not be a chatzitzah. Moreover, there is considerable room to be lenient in this case since it might be a situation of trei derabanan (an intersection of two rabbinic enactments). If a filling is a chatzitzah at all, it is on a rabbinic level, since it does not cover most of the body (see the previous chapter). Additionally, some Rishonim (Ramban, Rashba, and Ritva to Kiddushin 25a) believe that a chatzitzah in a beit hasetarim (such as the mouth; see previous chapter) constitutes only a rabbinic problem.
Rav Moshe Feinstein (Teshuvot Igrot Moshe, Yoreh Deah 1:97) represents the consensus view in his explanation of why a permanent filling does not constitute a chatzitzah. He points out that the only time a foreign object constitutes a chatzitzah is when one minds its presence. Rav Moshe reasons that someone is thought to mind the presence of an object when it prevents him from performing a certain task, or if it causes pain or cosmetic disfiguration. A bandage on a wound is considered a chatzitzah because, had it not been for medical considerations, no reasonable person would want the bandage attached to his body. Consequently, as soon as the wound is healed, the bandage will be removed. However, once someone has a cavity in his tooth due to decay, he will not be disturbed by the presence of a permanent filling in his mouth. After all, the filling enables the person to chew better and to drink with ease, and it improves his appearance.
Rav Moshe writes that it is the accepted practice of even the most scrupulous individuals to be lenient on this issue. He speculates that the Chochmat Adam was stringent only regarding primitive fillings that were necessary to prevent tooth loss without allowing for chewing in a comfortable manner. However, there is no reason to consider today’s permanent fillings to be chatzitzot, so even the most halachically meticulous individual can feel comfortable following the lenient approach.
Temporary Fillings
Temporary fillings present a serious problem for tevilah (immersion). They cannot simply be considered part of the body because they are meant to be removed from it. Rav Yechiel Michel Tukachinsky (Taharat Yisrael 15:28-29) rules that temporary fillings do indeed constitute chatzitzot, and several other authorities agree with his view (see Nishmat Avraham, Yoreh Deah p. 131). Rav Meir Arik (Teshuvot Imrei Yosher 2:112) leans towards their position, explaining that one should not seek out leniencies when the woman merely needs to delay her immersion a short time, until the fillings are removed.
Many authorities, including Rav Moshe (ibid.) and Rav Tzvi Pesach Frank (Teshuvot Har Tzvi, Y.D. 169), rule leniently. One might think that temporary dental work should be similar to tightly fitting rings, which are considered to be chatzitzot if one removes them while kneading dough (see Taz, Yoreh Deah 198:23). This case seems to indicate that an object constitutes a chatzitzah if one intends to remove it. Rav Moshe (based on Pitchei Teshuvah, Y.D. 198:1), however, distinguishes between a ring and temporary dental work. He argues that people remove their rings whenever they wish to knead dough, whereas dental work is meant to remain in place until the dentist removes it.
Rav Tzvi Pesach and Rav Moshe offer a second reason that temporary fillings are not chatzitzot. They argue that since the woman intends to replace the temporary fillings with permanent ones, it is clear that she does not object to their presence.
Rav Feivel Cohen (Badei Hashulchan 198:179) adopts a middle approach. He believes that if the dental work is intended to remain in place for at least thirty days after the immersion, then a woman may leave it in during the immersion. One should consult a Rav for guidance concerning this issue.
Braces
Rav Moshe (Teshuvot Igrot Moshe, Yoreh Deah 1:96) suggests that tight braces are definitely considered chatzitzot if they serve only a cosmetic purpose, such as straightening the teeth. If, however, they prevent teeth from falling out, they are possibly not a chatzitzah. In such a case, the braces can be seen as part of the teeth, since they are fundamentally crucial for dental health and development. He writes that this concept parallels the law that a pregnant non-Jewish woman’s tevilah for the purpose of conversion takes effect on the fetus, as well (Yevamot 78a-b). The Gemara explains that the mother’s body is not considered a chatzitzah between the water and the fetus because the fetus naturally develops in its mother’s womb.
Rav Feivel Cohen (Badei Hashulchan 198:179) rules that braces do not constitute a chatzitzah if they will be in place for more than thirty days after her immersion, just as he rules regarding fillings. In practice, though, Rav Binyomin Forst (The Laws of Niddah 2:135) notes that the technology of braces has changed slightly since many of these rulings were issued. Nowadays, small elastic ties are usually changed every month, so their impermanence could create a problem of a chatzitzah. A woman, therefore, should consult her rabbi and dentist before installing braces, in order to find the best possible option.
Fingernails
Both the Shulchan Aruch and the Rama (Y.D. 198:18-20) record the practice to cut fingernails and toenails prior to immersing in the mikvah. This custom developed due to concern about dirt beneath the fingernails, which is sometimes considered a chatzitzah.
This issue frequently arises in today’s society, where many women grow their nails quite long. Rav Chaim Ozer Grodinski (Teshuvot Achiezer 3:33:1) discusses this issue. He reasons that most women do not consider the presence of the nails to be objectionable, so nails should not constitute a chatzitzah. Nevertheless, Rav Chaim Ozer concludes that women should be encouraged to cut their nails before tevilah:
I have not found an explicit source among the Acharonim to permit [women to forgo the custom of cutting their fingernails before immersion], and concern exists for future disasters [if women will invalidate their immersions by failing to clean their long nails properly]. Therefore [rabbis] cannot explicitly permit [immersion without first cutting long nails], although [they] should instruct the mikvah’s supervisors not to rebuke those women who refuse to cut their manicured nails.
Conclusion
This concludes our discussion of the rules of chatzitzah and tevilah. We hope that our discussion will motivate people to study these laws carefully and to consult with their rabbis whenever questions arise. As Rav Binyomin Forst writes, “One should never attempt to solve a chatzitzah problem without consulting a competent Rav” (The Laws of Niddah 2:277).
Beit Din
Lifnim Mishurat Hadin, Acting Beyond the Letter of the Law
In the coming chapters, we examine the procedures of batei din (rabbinical courts). Before addressing many of these details, we first review the importance of behaving lifnim mishurat hadin, beyond the strict requirements of the law. Our discussion focuses mostly on Talmudic usage and applications of this concept.
Source of Lifnim Mishurat Hadin
The Gemara (Bava Metzia 30b) cites the verse, “You should do the straight (yashar) and the good (tov) in the eyes of God” (Devarim 6:18), as the source for the importance of acting lifnim mishurat hadin.1 The Ramban (ad loc.) explains:
The intention of this verse is to teach that while we must keep God’s specific laws, we must also institute what is “the good and straight” in those areas for which God did not issue any specific rules. This is a great matter because it is impossible for the Torah to regulate every area of human behavior on both an individual level and a communal level. After the Torah presents a number of general ethical commands, such as not to gossip and not to take revenge, it commands us to do good and right in all areas.2
In this vein, the Ramban writes that a person should speak kindly and gently with everyone and should establish a positive reputation for himself. As one example, one must follow the Talmudic rule of bar mitzra (Bava Metzia 108a), that when selling property, one’s neighbor automatically has the right of first refusal.3 In the context of bar mitzra the Maggid Mishneh (Hilchot Shecheinim 14:5) presents an important overview of lifnim mishurat hadin:
Our perfect Torah gave principles for correcting man’s character and behavior in the world when it said, “Be holy” (Vayikra 19:2). This verse means, as the Rabbis taught, “Sanctify yourself with what is permitted to you,” that a person should not excessively pursue physical desires (even via permitted means). Similarly, the Torah commanded, “You should do the straight (yashar) and the good (tov) in the eyes of God” (Devarim 6:18), which means that one should act in a proper and honest manner towards other people. There was no purpose [for the Torah] to legislate details of these ideas, for the Torah’s mitzvot apply in every period of history. In every situation, a person must act accordingly, but the appropriate behavior can change, depending on the time and people involved. Nonetheless, the Rabbis wrote several worthwhile details that fall under these principles. The Rabbis enacted some of them as absolute law, while others are merely lechatchilah (ideal) or midat chasidut (especially pious behavior).
Importance of Lifnim Mishurat Hadin
Rashi (Bereishit 1:1) notes that God’s name “Elokim” appears alone in the first chapter of Bereishit, whereas the tetragrammaton (“YKVK”) appears next to “Elokim” in the second chapter. Rashi explains that God intended to create the world “with strict justice” (midat hadin, the attribute associated with “Elokim”), but when He saw that the world could not exist this way, He presented “the Divine attribute of mercy” (midat harachamim, the attribute associated with the tetragrammaton) and coupled it with midat hadin. We are obligated by the verse “Vehalachta bidrachav” (Devarim 13:5 and 28:9; see Sotah 14a) to follow in His footsteps, so must therefore combine our own sense of rigid justice with our sense of compassion. Indeed, the Rambam (Hilchot Yesodei Hatorah 5:11) writes that a Torah scholar should always act lifnim mishurat hadin. If we follow only strict law, the world cannot exist.
The Gemara (Bava Metzia 30b) stresses the importance of a beit din ruling lifnim mishurat hadin, suggesting that Jerusalem was destroyed because its courts ruled only according to strict justice, and not lifnim mishurat hadin. Tosafot (s.v. Lo) point out that elsewhere (Yoma 9b) the Gemara seems to contradict itself by attributing the destruction of the beit hamikdash to sinat chinam (baseless hatred) instead. Tosafot explain that both the prevalence of the sinat chinam and the lack of judging lifnim mishurat hadin were responsible for the destruction of the Temple.
Rav Mordechai Willig (Beit Yitzchak 26:140) offers an alternate resolution to this contradiction. He suggests that sinat chinam arises because of the lack of acting lifnim mishurat hadin. People who refuse to compromise on certain issues come to hate each other. Rav Willig further laments the prevalence of this problem, arguing that hatred constitutes sinat chinam even if the person making the demands is, objectively speaking, correct. Usually, both sides in a dispute are somewhat correct in their arguments. In light of that, all parties should act lifnim mishurat hadin.
Talmudic Examples and Explanations
Two examples from the Gemara illustrate how to act lifnim mishurat hadin. The Gemara (Berachot 45b) addresses the requirement of three men who eat together to recite birkat hamazon with a zimun. The Gemara rules that if two of the three men have completed their meal, the third must (as proper manners – Rashi) stop and join them in a zimun. If only one person has finished his meal, the other two individuals need not interrupt their meal to accommodate his desire for a zimun now. Nevertheless, the Gemara relates that Rav Papa and a companion acted lifnim mishurat hadin and interrupted their meal to allow his son Aba Mari to recite the zimun.
Elsewhere (Bava Metzia 83a), the Gemara records another application of lifnim mishurat hadin:
Some porters [negligently (see Rashi and Maharsha)] broke a barrel of wine belonging to Rabbah bar bar Channah. He seized their garments [as a form of payment], so they went and complained to Rav. Rav told [Rabbah bar bar Channah], “Return their garments.” [Rabbah] asked, “Is that the law?” Rav replied, “Yes, [as it says in Mishlei 2:20], ‘You shall walk in the way of good people.’” So [Rabbah] returned their garments. They further claimed [to Rav], “We are poor men, have worked all day, and are hungry. Are we to get nothing?” Rav ordered [Rabbah], “Go and pay them.” He asked, “Is that the law?” [Rav] responded, “Yes, [as the same verse continues], ‘And keep the path of the righteous.’”
Rashi (s.v. Bederech) explains that Rav’s ruling was not strict law, but lifnim mishurat hadin.
Emulating Sodom
The Gemara (Ketubot 103a, Bava Batra 12b) employs a similar principal, kofin al midat Sedom (“We coerce to prevent Sodom-like behavior”), to urge batei din to prevent an individual from acting unreasonably rigidly. Sodomite behavior is defined as refusing to allow another to infringe upon one’s rights even when such infringement causes one no harm while at the same time enabling the other person to secure a benefit or avoid a loss (zeh nehene v’zeh lo chaseir).
A Modern Application - Severance Pay
Although Halachah does not specifically provide for severance pay, the Rabbinical Court of Haifa (Piskei Din Batei Din Harabaniyim 3:91-96) issued a ruling lifnim mishurat hadin in 1958 that required an employer to pay severance pay to an older worker who was experiencing an extended period of unemployment and was living in poverty. The worker, a custodian in an Orthodox school, had served the school for twelve years before being released when his job came under the control of the local government (which did not wish to hire an elderly worker). After his release, he continued working for an additional year, despite the presence of a new custodian (hired by the local government), and the Chinuch Atzma’i network (to which this school belonged) independently raised his salary for this year. After the year, the Chinuch Atzma’i network said it could no longer afford to pay him.
The beit din accepted that the Chinuch Atzma’i network was not technically required to pay the janitor even for his extra year, because they no longer needed his services once they received a new janitor from the government. Nevertheless, the beit din urged Chinuch Atzma’i to pay slightly over 40% of his salary for one more year as an act of lifnim mishurat hadin.
A ruling of the Kiryat Arba Rabbinical Court (printed in Techumin 10:204-215) similarly illustrates how a beit din might apply lifnim mishurat hadin in practice. A Judaic studies teacher in a local religious school encountered difficulties during his first year there. Although the school rehired him at the end of the school year, they informed him at the beginning of the summer that they were changing his work assignment to administering secular studies - a task for which the teacher lacked the necessary training or inclination. Moreover, the new assignment would pay only 70% of his previous year’s salary. The teacher successfully convinced the beit din that the assignment change amounted to a de facto firing. The teacher’s contract, however, authorized the school to fire him even in the middle of the school year, with the school merely paying him basic severance pay.
The beit din found that, technically, the school could legitimately fire the teacher at any time. Nevertheless, they placed him in an exceedingly difficult situation, as he now needed to seek a job for the upcoming school year during the summer, while almost all schools fill their openings before the summer. In fact, the teacher failed to find a job for the next year. The beit din required the school to pay generous severance compensation, based on the principle of lifnim mishurat hadin, even though the strict letter of Torah law did not entitle the teacher to receive it.
Coercing to Act Lifnim Mishurat Hadin
The Gemara (Bava Metzia 24b) relates that Mar Shmuel ruled that one “must” return a lost object if one positively knows the owner’s identity. Mar Shmuel based his ruling on lifnim mishurat hadin, whereas the strict letter of Torah law often entitles the finder to keep a lost item. The Rishonim debate the nature of Mar Shmuel’s insistence that one “must” act lifnim mishurat hadin. The Mordechai (Bava Metzia 257) cites the Ra’avan and Ra’avyah, who assert that a beit din may coerce a litigant to act lifnim mishurat hadin provided that he can afford to do so. However, the Beit Yosef (Choshen Mishpat 12) notes that the Rosh (Bava Metzia 2:7) writes, “We do not coerce him to act this way, as we cannot coerce to act lifnim mishurat hadin.”
The Rama (C.M. 12:2) cites both opinions about coercion to act lifnim mishurat hadin without clearly ruling which opinion is normative, although he appears to prefer the Rosh’s opinion. The Aruch Hashulchan (C.M. 12:2) notes, however:
This disagreement addresses only whether beit din may literally coerce a litigant to act lifnim mishurat hadin. All agree, however, that a beit din may “verbally coerce” a litigant to act lifnim mishurat hadin by telling him that he must act ethically, by rebuking him, and by conjuring up feelings of kindness towards his adversary.
Elsewhere (C.M. 259:5), the Rama adds that we do not urge a financially strapped individual to act lifnim mishurat hadin in monetary matters. Similarly, the Aruch Hashulchan limits his comments to people who can afford to act lifnim mishurat hadin. Rav Yoezer Ariel (Techumin 12:156) adds that if the litigants signed an arbitration agreement (shtar borerut) in advance of the hearing, authorizing the beit din to rule “in accordance with law, compromise, and discretion (shikul hada’at),” then even the Rosh would agree that the beit din may coerce a litigant to act lifnim mishurat hadin, “in a case where there exists a special reason to do so.”
Conclusion
The great importance of acting beyond the letter of the law is clear. In fact, the Gemara (Berachot 7a) states that God prays that He should act lifnim mishurat hadin. Rav Walter Wurzberger (Ethics of Responsibility p. 32) reports that Rav Yosef Dov Soloveitchik once said, “Halachah is not a ceiling but a floor.” Similarly, Rav Aharon Lichtenstein writes, “Traditional halachic Judaism demands of the Jew both adherence to Halachah and commitment to an ethical moment that, though different from Halachah, is nevertheless of a piece with it and in its own way fully imperative” (Leaves of Faith 2:52). Rav Yitzchak Herzog (Techumin 7:278-279) vigorously argues with some (unidentified) non-Jewish writers who assert that rigid law represents the Jewish ideal of justice. Rav Herzog insists that lifnim mishurat hadin, an expression of kindness within our legal framework, characterizes our true ideal.
The Prohibition Against Using Civil Courts
Jews no longer live in autonomous communities in the Diaspora, as they did for many previous generations. Consequently, the temptation to bring court cases to civil courts has grown stronger. In this chapter, we discuss when the Halachah permits using the civil court system.
Source of the Prohibition
The Torah (Shemot 21:1), in introducing monetary laws, commands, “And these are the laws that you shall present to them.” The Gemara (Gittin 88b) interprets “them” as referring to ordained dayanim (rabbinical judges), whereas one may not approach “non-Jews or unqualified Jews” to adjudicate a case against a fellow Jew. The Gemara adds that even if the non-Jewish courts judge according to Halachah, we nevertheless may not submit our internal disputes to them. The Tashbetz (vol. IV, Tur Hashelishi 6) rules that this prohibition even precludes the use of non-Jewish judges who do not practice idolatry, such as Muslims.
Although the Gemara names two groups of unacceptable judges, non-Jews and uncertified Jews, in the same sentence, the Ramban (Shemot 21:1) notes a critical distinction between them (codified in Shulchan Aruch, Choshen Mishpat 26:1):
Even though Chazal have mentioned these two groups together, there is a difference between them. If the two litigants consent to come before unqualified Jews for [monetary] judgment, and accept them as judges, it is permissible to do so, and these litigants must abide by the unqualified judges’ decision. It is forbidden, however, to be judged by non-Jewish judges under all circumstances, even if the non-Jewish statutes are identical to our laws.
Nature of the Prohibition
The Rambam (Hilchot Sanhedrin 26:7) and Shulchan Aruch (ibid.) add a surprisingly harsh condemnation of those who adjudicate their disputes in non-Jewish courts:
Whoever submits a suit for adjudication to non-Jewish judges... is a wicked man. It is as though he reviled, blasphemed, and rebelled against the Torah of Moshe.
Why do the Rambam and Shulchan Aruch include such a sharp exhortation in their legal codes? Apparently, this strong language defines the character of the prohibition against being judged by non-Jewish courts – the litigants implicitly reject the Torah in favor of a foreign legal system. This analysis helps explain a curious law in the Shulchan Aruch (C.M. 26:2):
If the non-Jews’ hands are powerful (i.e., if Jews lack political sovereignty or, at the very least, communal autonomy) and [a Jewish plaintiff’s] adversary is a difficult and violent person, such that [the plaintiff] is unable to recover the money in beit din, the defendant should first be summoned to beit din. If the defendant refuses to come to beit din, the plaintiff receives permission from the beit din to recover the money through the non-Jewish court system.
Permission of this type is commonly referred to as a heter erka’ot (permission to submit the claim to civil court). For example, Rav Moshe Feinstein (Teshuvot Igrot Moshe, C.M. 1:8) discusses how to deal with a dishonest merchant who sold non-kosher meat with forged kashrut certification. Rav Moshe writes that the community should initially sue this merchant in a beit din (as opposed to a civil court), but the beit din may permit them to sue him in civil court should the beit din be unable to halt his activities.
The Klei Chemdah (in his first essay on Parshat Mishpatim) asks, if the Halachah requires sacrificing one’s entire wealth to avoid violating a negative prohibition (see Rama, Orach Chaim 656), why may beit din issue a heter erka’ot? He answers that submitting a dispute to a non-Jewish court does not transgress anything unless it demonstrates a rejection of the Torah system of justice. If one makes a genuine effort, therefore, to adjudicate the matter in beit din, but the other party resists, beit din may authorize one to press charges in non-Jewish court.
Israeli Courts
The halachic status of the State of Israel’s civil courts has generated extensive discussion since the establishment of the State. These courts seldom judge according to Halachah (with some notable exceptions); instead, they base their rulings primarily on a mixture of British, Turkish, and modern Israeli laws.
The Gemara (Sanhedrin 23a) permits litigation in Syrian erka’ot (civil courts) because no competent judges resided there. The judges in this type of court rule based on life experiences and common sense. Similarly, the Rama (C.M. 8:1, citing the Rashba) rules that if no viable alternative exists, a community may appoint three well-respected people with sound judgment to serve as judges. Accordingly, former Israeli Supreme Court Justice Menachem Elon (Hamishpat Ha’ivri 1:22 note 80 and 1:122 note 174) suggests that the Israeli civil courts enjoy the same status as these Syrian erka’ot and their later parallels.
The Chazon Ish (Sanhedrin 15:4), however, emphatically forbids litigation in Israeli civil courts, asserting that they do not share the status of Syrian erka’ot. He explains that Syrian erka’ot judged entirely based on common sense, whereas Israeli courts implement an organized non-Torah legal system. Thus, Israeli civil courts attain the status of a non-Jewish court system, despite the fact that the judges and law enforcement officials are mostly Jewish. Moreover, the Chazon Ish adds that Israeli courts are worse than non-Jewish courts, for we expect non-Jews to judge by their own laws, whereas we disapprove of Jews “who have abandoned the laws of the Torah for laws of nonsense.” Indeed, Rav Ovadia Yosef (Teshuvot Yechaveh Da’at 4:65) rules that one who presents a case to a secular Israeli court violates both the prohibition against using non-Jewish courts and the prohibition against causing another Jew to sin (lifnei iveir), because the case provides Jewish judges with an opportunity to apply secular laws.
Virtually all authorities accept the Chazon Ish’s position. Thus, one may not present a civil case against another Jew to Israeli civil courts for adjudication.
Preliminary Injunctions, Collections, and Filing for Bankruptcy
Despite the severity of the prohibition against using the civil court system, several cases exist where a Jew may possibly use the civil court system. The Rambam (Hilchot Sanhedrin 26:7) and Shulchan Aruch (Choshen Mishpat 26:1) formulate the prohibition against using non-Jewish courts as a ban on being “judged” by a non-Jewish court. Accordingly, utilizing civil courts for non-judiciary purposes would appear to be permitted.
Thus, Rav Moshe Feinstein (Teshuvot Igrot Moshe, Choshen Mishpat 2:11) permits requesting that a civil judge issue a preliminary injunction, an order to freeze the status quo of property until verifying its owner. Since a preliminary injunction does not entail judgement, seeking this order does not violate Halachah. Similarly, Rav Mordechai Eliyahu (Techumin 3:244) rules that one may utilize civil courts to collect an undisputed debt. Once again, no prohibition exists when no judgement is involved. Rav Hershel Schachter (in a lecture delivered at The Fifth Avenue Synagogue) ruled that one may file for bankruptcy in civil bankruptcy court, equating it conceptually with filing for a civil marriage license. Rav J. David Bleich (Tradition 34:3:74) permits probate of an undisputed will in civil court, and Rav Ezra Basri (Dinei Mamonot 1:348) rules that Halachah recognizes a monetary custodian appointed by a civil court.
Arbitration Panels
At least two prominent authorities permit individuals to submit disputes to an arbitration panel for resolution. They reason that the arbiters base their rulings on common sense, as opposed to non-Jewish codes of law, so these forums are not considered non-Jewish courts. Thus, the Rabbinical Court of Ashdod (Piskei Din Batei Din Harabaniyim 13:330-335), then headed by Rav Shlomo Dichovsky, ruled that one may submit a dispute to the Israel Union of Engineers and Architects. Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 11:93) also permits bringing disputes to professional arbitration panels, such as the arbiters of the Association of Israel Cooperative Apartments. Rav Yonah Reiss pointed out to me that Rav Waldenberg’s ruling has added significance because it includes panels that the Israeli government requires (thus making them closer to actual civil courts).
The above authorities address arbitration in Israel, where the arbiters are mostly Jewish. Outside of Israel, the issue may be somewhat more complex. The Shach (C.M. 22:15, as understood by the Aruch Hashulchan) permits submitting a dispute to an arbitration panel consisting of non-Jews provided that they are not bound by non-Jewish laws. However, the Netivot (C.M. 22:14) disagrees with the Shach and forbids submitting a dispute to an arbitration panel consisting of non-Jewish members. The Aruch Hashulchan (C.M. 22:8) rules in accordance with his interpretation of the Shach, but Rav J. David Bleich (Bin’tivot Hahalachah 2:169) and Rav Hershel Schachter (personal communication) think that the strict opinion of the Netivot should be followed (see Halachah Pesukah Al Choshen Mishpat 22:2).
Moreover, some have questioned whether arbitration panels are merely less formal courts or truly panels that are not bound by secular law. On the other hand, Rav Dr. Dov Bressler (The Journal of Halacha and Contemporary Society 9:115-116) cites the following statement from the Committee on Arbitration of the Association of the Bar of the City of New York (emphasis added):
The arbitrator need not apply substantive principles of law. The arbitrator is not bound by evidentiary rules; he need not give reasons to support his ultimate determination and his award is not subject to judicial review for errors of law or fact. The arbitrator, free from rules of law, may decide solely on the equities of the case.
Accordingly, Rav Bressler concludes, “Individuals who may ordinarily tend to ignore rabbinical courts should therefore be counseled into selecting arbitration rather than a strict judicial hearing.” Someone who faces this issue should consult both his rabbi and his attorney for competent guidance. Rules and practices are subject to change and variation from one locale to another, so a Rav must conduct a careful investigation of the facts before determining the Halachah in a particular situation.
Equitable Distribution
An increasing number of engaged couples in the Orthodox community today sign prenuptial agreements to prevent situations of igun. These agreements include a binding arbitration agreement that designates a specific beit din to adjudicate a divorce settlement, should the need unfortunately arise. Rav Zalman Nechemia Goldberg (Yeshurun 11:698) suggests that a couple could sign a prenuptial agreement that would empower the beit din to divide the property between husband and wife based on civil equitable distribution laws. Rav J. David Bleich (Tradition 34:3 and Bin’tivot Hahalachah 2:169-172; based on the Taz, Choshen Mishpat 26:3, and other sources) opposes this proposal, arguing that it violates the prohibition against using the civil legal system, because the beit din will now replace Halachah with non-Torah laws. Even if the bride and groom wish to apply equitable distribution, Rav Bleich asserts that their desire is irrelevant, for they may not stipulate conditions that contravene Halachah (matneh al mah shekatuv batorah).
Rav Willig (in an address to the Rabbinical Council of America) defended Rav Zalman Nechemia’s proposal, noting that in order to be considered a non-Torah system, the beit din would need to rule based on civil law as it will be codified on the day of the beit din hearing. By contrast, the agreement authorizes the beit din to employ the equitable distribution laws as of the signing of the agreement. Thus, the parties are not submitting their case to a non-Torah legal system, but are merely structuring a settlement in case of divorce. Rav Willig and Rav Zalman Nechemia understand that the Taz, cited by Rav Bleich, objects only to accepting whatever the civil laws will be at the time of adjudication, for that truly replaces Halachah with a new source of law. Here, however, where both sides spell out at the time of the agreement how they wish to divide their property, they have the right to make arrangements as they see fit (kol tnai sheb'mammon kayam), as long as they do not blindly submit to the authority of the civil court or civil laws.
Serving as a Lawyer or Juror
Rav Ovadia Yosef (Teshuvot Yechaveh Daat 4:65) distinguishes between representing the plaintiff in Israeli civil court, which he prohibits, and representing the defendant, which he sometimes permits. Rav Ovadia argues that the plaintiff’s attorney actively endorses a non-Torah legal system by helping a Jew utilize it, in violation of Halachah, to collect money. The defendant, on the other hand, does not necessarily wish to appear in secular court. He might prefer to follow the Halachic requirement to submit the dispute to a beit din. Rav Ovadia thus permits representing a defendant who sought to have a beit din adjudicate his case, equating such a situation with “saving a victim from his robber.”
Rav Menashe Klein (Teshuvot Mishneh Halachot 4:213) prohibits serving on a jury, especially when the case includes a Jewish litigant, because performing jury duty glorifies a non-Torah legal system.
Rav Hershel Schachter told Rav Ezra Frazer that he strongly disagrees with this ruling. He explained that the Halachah requires non-Jews to establish a legal system, so a Jew does nothing wrong by participating as a juror in civil courts, unless both litigants are Jewish (in which case facilitating their trial supports a sin). Regarding capital trials, Rav Schachter argues that every government has the right to punish criminals within reason. For example, if a Jew murdered, a non-Jewish government may legitimately execute him. Accordingly, Jewish jurors may vote to convict a Jewish defendant if solid evidence convinces them that he committed murder. Rav Yitzchak Isaac Liebes (Teshuvot Beit Avi 2:144) also permits Jews to perform jury duty in both civil and capital cases.
Criminal Law
Chazal condemn mesirah, turning a Jew over to non-Jewish authorities, as a terrible sin (see Rosh Hashanah 17a and Rashi s.v. Vehamesurot). Accordingly, we might expect halachic authorities to disapprove of assisting the government in apprehending Jewish criminals. Nevertheless, many authorities distinguish between just and unjust situations. Following the same line of reasoning as his ruling on capital jury duty, Rav Hershel Schachter (The Journal of Halacha and Contemporary Society 1:118) explains:
A “moser” is one who aides a pirate, a crooked government official, or a tyrant-king to obtain money illegally from his fellow Jew. Even if the Jew has actually done something wrong, but if the secular government or the ruler would exact a punishment far beyond that which the crime should require, then it is likewise forbidden to report him. If, however, the government is entitled to its taxes, or is permitted to punish criminals as offenders, there is no problem of mesirah in telling the government information needed for them to collect their taxes or to apprehend their man. One critical point should however be added: There is no problem of mesirah in informing the government of a Jewish criminal, even if they penalize the criminal with a punishment more severe than the Torah requires, because even a non-Jewish government is authorized to punish and penalize above and beyond the law, shelo min hadin, for the purpose of maintaining law and order. However, this only applies in the situation when the Jewish offender or criminal has at least violated some Torah law. But if he did absolutely nothing wrong in the eyes of the Torah, then giving him over to the government would constitute a violation of mesirah.
Rav Schachter applied this approach in a case where I consulted him. An Orthodox woman, who was serving as an assistant district attorney (ADA) in an American city, was assigned the task of prosecuting an Orthodox man accused of severe child abuse. She asked me if Halachah permitted her to do so, and I consulted Rav Hershel Schachter. Rav Schachter responded that she may prosecute him, as batei din today lack any jurisdiction in criminal matters, so otherwise the accused would go unpunished and repeat his heinous crime.
Rav Yitzchak Herzog (Techukah Leyisrael Al Pi Hatorah 1:173) notes that rabbis in Israel similarly acknowledged their inability to punish criminals, and they consequently chose to abdicate responsibility for criminal matters:
In a rabbinic convention held in Tel Aviv [immediately before the establishment of the State of Israel] the rabbis unanimously voiced their opinion that they wish to give up control of any jurisdiction over criminal matters. They noted that even in Eastern Europe, the rabbinate ceded jurisdiction on the matters to the non-rabbinic authorities, such as the famous Vaad Arba Aratzot [Council of Four Lands], who acted as the equivalent of the Talmudic shivah tovei ha’ir - seven recognized community leaders - and had exclusive control of imposition of taxes and punishing rebels.
Rav Itamar Warhaftig (Techumin 10:190) argues:
The rabbis themselves did not wish to deal with [criminal law], but rather were prepared for civil courts to adjudicate this area. Hence, it is unthinkable that rabbis should not recognize an arrangement that they [or their predecessors] themselves desired!
Accordingly, Rav Naftali Bar-Ilan (Techumin 10:190) permits testifying in civil court if one witnessed a fatal automobile accident. He notes, however, that if monetary disputes arise from the accident, these should be submitted to a beit din.
Despite the above positions of many poskim to permit cooperation with the government in the just prosecution of Jewish criminals, one must always present an eminent Rav with practical questions of mesirah. Poskim do not necessarily agree on the definition of a just situation, so some poskim might prohibit notifying the authorities of cases where others believe that no problem of mesirah exists. Moreover, questions of mesirah often potentially involve questions of life-and-death.
Extradition From Israel
Rav Shaul Yisraeli (Chavat Binyamin 1:23) discusses, in a specific case, whether the State of Israel may extradite a Jew to a foreign country where he is wanted for murder. Rav Yisraeli notes that failure to extradite the alleged criminal would not leave him unpunished, for an Israeli court could try him. Furthermore, in that specific case Rav Yisraeli argues that there is concern that the judge abroad might harbor anti-Semitic views or be influenced by anti-Semitic terror organizations. (The case he addresses involved a Jew suspected of murdering an Arab in a European country with a large Arab population.) He adds that “the Halachah does not recognize international borders,” so Israel should not hesitate to punish her citizens for crimes committed abroad. Accordingly, Rav Yisraeli concludes that Israel should not extradite the Jewish individual in the specific case he addressed and he also urges the government to legislate that any Jew who deserves extradition will instead be tried in Israel.
On the other hand, Rav Chaim David Halevi (Teshuvot Mayim Chaim 67) argues that Israel fundamentally may sign extradition agreements with other countries and defends the extradition laws as they existed in his time (1991). Rav Halevi records that at that time, Israel would extradite a Jew only when he committed a crime with no religious or political connection, if the other country provided sufficient evidence to warrant a trial, if the Jew were not an Israeli citizen at the time of the crime, and if the Jew would not face the death penalty for a crime that is not a capital offense in Israel.
Conclusion
It is fundamentally prohibited for two Jewish litigants to present their case to a civil court for adjudication. Nevertheless, one should consult a competent Rav and lawyer in questionable situations, as this prohibition has many exceptions. In Israel, the prohibition against civil courts is further complicated by the fact that the judges are mostly Jewish and are thus themselves bound by Halachah. Rav Yaakov Ariel (Techumin 1:319-320) summarizes the present state of Israeli courts:
One of the most painful problems for those who believe that there is a place for Torah in the State of Israel is the law status accorded to Jewish civil law…. Israel, the Jewish state, should have traditional Jewish civil law as the law of the land. Just as it is inconceivable to have a Jewish state whose official language is not Hebrew or that does not follow the Jewish calendar, so too the State of Israel should not adopt foreign civil codes. No Jew, despite his identification with the positive aspects of the State of Israel, should tolerate the current situation regarding civil law. The love of the State of Israel should cause every Jew to long for the day when halachic civil law will be returned to its original great status…. Just as the Religious Zionist community educates its community in state religious schools, so too we must settle our monetary disputes in the state rabbinical courts.
Regrettably, batei din in both America and Israel handle a relatively low number of cases, apparently because many observant Jews are not fully sensitized to the severity of the prohibition against litigating in civil court. Rav Itamar Warhaftig told me (in 2004) that many qualified dayanim in Israel are not able to find work as dayanim due to the small number of monetary disputes that reach batei din. Similarly, Rav Yonah Reiss told me that (as of 2004) the Beth Din of America adjudicates approximately 100 monetary disputes a year, a small number considering how many Jews live in the New York area. However, both Rav Warhaftig and Rav Reiss did note that the number of cases in their respective countries’ batei din is growing each year, hopefully indicating that people are slowly learning about the importance of resolving their disputes in batei din.
Summons to Beit Din
Part I: Issuing the Summons
In the next two chapters, we focus on the topic of hazmanah, summons to beit din (a rabbinical court). We begin by discussing the details of how beit din issues a hazmanah.
Source of the Rule
The Gemara (Mo’eid Katan 16a) provides the source for summoning a defendant (nitba) to a beit din:
From where do we know that an agent of beit din is sent to summon a defendant? As it is written (Bemidbar 16:12), “Moshe sent forth to summon Datan and Aviram the sons of Eliav.” [How do we know that] we inform the defendant that he will be judged in the presence of a great man? As it is written (Bemidbar 16:16), “Moshe said to Korach, ‘You and your entire assembly, appear before Hashem.’” [How do we know that] we mention the plaintiff? As it is written (ibid.) “You, they, and Aharon.” [How do we know that] a set date is mentioned in the hazmanah? As it is written (ibid.), “Tomorrow.” [How do we know that] a second hazmanah is sent? As it is written (Yirmiyahu 46:17, as explained by Rashi; however, see Ritva), “Place Paroh, King of Egypt, in excommunication for having ignored his appointed time more than once.” From where do we learn that the agent of the court [who delivers the summons] is permitted to report to the beit din [about the actions of a recalcitrant defendant] without concern for violating lashon hara (slander) prohibitions? As it is written (Bemidbar 16:14), “Even if you would gouge out the eyes of those men, we shall not go up.” [The court agent must have told Moshe that Datan and Aviram made these remarks, or else he would not have known about the remarks in order to respond angrily – Rashi s.v. Ha’einei.] From where do we derive that we excommunicate (nidui) one who refuses to appear in beit din? As it is written (Shoftim 5:23), “Curse Meroz [for their refusal to join the battle against Chatzor].”
Delivering the Hazmanah
The Shulchan Aruch (Choshen Mishpat 11:1) describes the process of issuing the hazmanah as follows: “Beit din sends their agent (sh’liach beit din) to summon the defendant to appear before beit din.” Hence, the hazmanah is served the same way that Moshe summoned Datan and Aviram; a messenger appears personally to the defendant and issues a verbal summons. Of course, presenting the hazmanah in person often cannot be done today. Therefore, the Israeli Rabbinate’s batei din permit delivering a written hazmanah by mail (Takanot Hadiyun [5753 edition] 4:36). Batei din in America also issue hazmanot by mail. Professor Eliav Shochetman (Seder Hadin p. 148), addressing the Israeli beit din system, explains the justification for this practice:
The reason [that contemporary authorities permit delivering the hazmanah by mail] appears to be the great number of cases litigated in beit din - tens of thousands per year. Bear in mind that each case has at least two litigants to be summoned, and if we consider that court dates are postponed and that hazmanot thus need to be sent a second time, for this and various other reasons, it turns out that tens if not hundreds of thousands of hazmanot are sent per year. This reality certainly does not allow for a shaliach to deliver each hazmanah personally.
On a practical note, I have found that a personally delivered hazmanah can often influence a recalcitrant party to appear in beit din. A personal visit sends a message to the recalcitrant husband that the beit din “means business” and is serious about doing whatever it can to ensure that justice is served.
Sometimes, though, it is difficult to serve a hazmanah. Unfortunately, some unscrupulous individuals try to evade receipt of the summons. Thus, the Israeli Rabbinate’s batei din provide alternative means for delivering hazmanot, such as printing a notice in a newspaper or leaving the hazmanah with neighbors or co-workers.
Content of the Hazmanah
Acharonim debate whether the hazmanah must include the matter to be adjudicated in beit din, as the Gemara does not mention such an obligation. The Shach (Choshen Mishpat 11:1) requires that the hazmanah inform the defendant what the case is about. Otherwise, the defendant can claim that were he to know the issue in advance, he would appease the plaintiff outside of beit din. The Shach notes that the Be’er Sheva (54) does not obligate the hazmanah to contain any details of the case. Nevertheless, both the Netivot (11:1) and the Aruch Hashulchan (Choshen Mishpat 11:2) adopt the Shach’s own position.
Interestingly, Rav Moshe Feinstein (Igrot Moshe, C.M. 2:6) limits the Shach’s ruling to the hazmanot of a non-recognized beit din. However, he argues that the defendant can assume that a recognized beit din never would have sent a hazmanah for a matter that the litigants could easily settle out of beit din.
Rav Gedalia Schwartz told me that experience teaches that all batei din should inform defendants what the trial will be about, as the parties will often resolve the matter without litigation in beit din. Indeed, the Israeli Rabbinate’s batei din mention the cause of action in their hazmanot (Takanot Hadiyun of 5753 4:32).
How Many Hazmanot are Sent?
The Shulchan Aruch (C.M. 11:1) speaks of sending three hazmanot to a rural resident who occasionally visits the city and one hazmanah to a city dweller. Acharonim (Tumim, cited approvingly by Netivot 11:4; Pitchei Teshuvah, C.M. 11:1; Aruch Hashulhan, C.M. 11:1) note that nowadays we send three hazmanot even to city dwellers, because our lives have become so hectic that we need reminding. In America, we follow the practice of always sending three hazmanot. In Israel, the practice has developed to send only one hazmanah, in both the non-government batei din (Badatz) and state-sponsored Israeli Rabbinate batei din (see Teshuvot Minchat Yitzchak 9:155 and Takanot Hadiyun of 5753 Chapter 4).
The practice of Yemenite batei din is particularly interesting. If a party would respond only to a second or third notice, the dayanim would conduct the proceedings without asking him why he ignored the earlier hazmanot, lest they be biased against him. However, after the final decision was issued (gemar din), they inquired as to the reason for the delay. If he failed to provide a legitimate excuse for the tardy response, the dayanim would reprimand him (Rav Yosef Kafich, Halichot Teiman p. 71).
One other change has evolved in recent generations. In the time of the Shulchan Aruch, the respondent received one day (!) to appear in beit din, presumably because Moshe demanded that Korach appear “tomorrow.” Today, batei din allow more time for the parties to respond to hazmanot, depending on the determination of the particular beit din.
Part II: Selecting a Court
In this chapter, we discuss the appropriate response to a hazmanah (summons) if one does not wish to submit to the jurisdiction of the particular beit din that has summoned him.
An Alternate Beit Din
The Aruch Hashulchan (Choshen Mishpat 26:5) rules in accordance with Rav Yonatan Eybeshutz (Urim 26:13), who writes that a defendant (nitba) who wishes to have his case heard in an alternate beit din should not be equated with one who refuses to appear in any beit din. The Aruch Hashulchan adds, however, that if the beit din believes the defendant to be intentionally procrastinating, they may treat him as if he refuses to appear in any beit din. Let us cite several examples of how this distinction has worked in practice.
In 1957, someone wished to press a claim in the Jerusalem District Rabbinical Court (Seder Hadin p. 151, note 43). Upon receiving the hazmanah, the defendant responded that he wished to adjudicate the case in the (Jerusalem) beit din of the eminent Rav Tzvi Pesach Frank. The Jerusalem District Court found the defendant to be recalcitrant and permitted the plaintiff to seek relief in the civil court system. The defendant appealed to the Israeli Rabbinate’s Court of Appeals. This beit din (which included Rav Yosef Shalom Eliashiv) ruled in favor of the defendant, overturning the decision of the District Rabbinical Court. It reasoned, “The defendant had the right to have the case adjudicated in a different beit din in Jerusalem and thus should not have been characterized as recalcitrant.”
Rav Moshe Feinstein (Teshuvot Igrot Moshe, C.M. 2:9) ruled similarly regarding a divorce case in Bnei Brak where a husband demanded to adjudicate in a non-government beit din, while his wife (the defendant) insisted on going to a state-recognized beit din of the Israeli Rabbinate. Rav Moshe ruled that the wife’s demands were not of a recalcitrant nature, because she preferred a beit din with the necessary government recognition to enforce its rulings.
The right to choose a court applies only if the alternate beit din is an absolutely neutral venue. For example, Tel Aviv Rabbinical Court (cited in Seder Hadin, ibid.) heard a case in 1986 where the defendants, members of a particular Chassidic group, sought to move the case to a beit din consisting of their group’s rabbis. The plaintiff was not Chassidic, so he did not wish to use their beit din. The Tel Aviv Rabbinical Court, which consisted of outstanding dayanim (including Rav Shlomo Dichovsky and Rav Avraham Sherman), denied the motion of the defendants:
The beit din of [this Chassidic group] is not situated in the locale where the disputants reside.… It is inconceivable to force one who is not [Chassidic] to submit to the jurisdiction of a [Chassidic] beit din.... It is reasonable to say that the [Chassidic] dayanim will be more sympathetic towards [their group’s Chassidim] than towards one who is not affiliated with [their group].
Using Arbitration Instead of an Established Beit Din
Rav Akiva Eiger (gloss to Shulchan Aruch, C.M. 3:1) ruled that the defendant may claim that he wishes to bring the case before people (not necessarily rabbis) who will adjudicate it according to prevalent business practice (minhag hasocharim), and not according to Halachah. Rav Eiger explains, “Since this is the local custom, in such a case we say that prevalent business practice overrides Halachah (minhag mevateil Halachah).”
In 1982 the Ashdod Rabbinical Court (Piskei Din Batei Din Harabbaniyim 13:330), headed by Rav Shlomo Dichovsky, faced a plaintiff who sought to summon the defendant to the arbitration panel of the Israel Union of Engineers and Architects. The plaintiff pointed out that the parties’ contract contained a clause stating that all disputes would be brought to that body. The defendant refused to cooperate, arguing that the clause violated Halachah. The beit din ruled in favor of the plaintiff, citing the comments of Rav Akiva Eiger to prove that the arbitration claim did not contravene Halachah. The beit din explained that the panel made judgments based on common sense and common business practice, rather than ruling based on secular law.
A Zabla Beit Din
According to the Shulchan Aruch (C.M. 3:1), a defendant has the right to claim that he wants “zabla,” an acronym for “zeh boreir lo echad” (“each picks one for himself”). The litigants create a zabla beit din by each party selecting one dayan and then those two dayanim choosing their third colleague. The Rosh (Sanhedrin 3:1; based on Rashi, Sanhedrin 23a s.v. Yeitzei) explains the logic of this system:
Truth will emerge from such a beit din, because litigants will be inclined to follow this beit din’s ruling. Each side will reasonably believe that he chose a dayan who will argue in his favor, if such an argument is indeed plausible. The dayanim themselves will seek to find sound arguments for both sides.
Nevertheless, the Rama (C.M. 3:1) rules that a litigant cannot insist on zabla if there is a local established beit din (beit din kavu’a). The Chazon Ish (Sanhedrin 15:7) offers an explanation for the Rama’s ruling:
This [ruling] applies specifically when the community has enacted this policy…. They would find reason to enact such legislation due to crooked individuals, who utilize the right to select a judge as a means of escaping justice, by delaying until the beit din is assembled. In addition, the litigant has the right to reject the dayan selected by his adversary [and dishonest people abuse this right to delay the application of justice]. Moreover, sometimes a litigant appoints an unscrupulous dayan (or arbiter) and it is [often] difficult to prove that he indeed is unscrupulous. It appears that just as the defendant cannot insist on zabla if the city has a beit din kavu’a, he similarly cannot insist on going to another beit din in the same city, even if it is greater.
The System’s Pitfalls
Rav Yosef Eliyahu Henkin (Eidut Leyisrael p. 167) laments the fact that all of the major Jewish communities in America lack centralized batei din. Consequently, the Chazon Ish’s concerns reportedly remain relevant today. Indeed, Rav Moshe Feinstein (Igrot Moshe, C.M. 2:3) and Rav Yitzchak Isaac Liebes (Teshuvot Beit Avi 5:142) point out that there is no beit din kavu’a in New York. Thus, any defendant may insist on zabla with all its resultant pitfalls. In Rav Moshe’s words:
That which the Rama writes, that if there is a beit din kavua in the area one may not refuse to submit to its jurisdiction, applies only to situations such as in the cities of the “old country” where the local community appointed the beit din. In the old country, the town Rav had the authority to summon people to submit to his jurisdiction. However, in New York there are no established dayanim appointed by the Jewish community. Moreover, there are batei din of the many and varied rabbinic organizations [Rabbinical Council of America, Igud Harabanim, Agudat Harabanim, Hitachdut Harabanim-Satmar - C.J.] so that not even all the rabbis of a particular community subscribe to the jurisdiction of a particular beit din. Thus, if one party requests zabla, the other side must agree to it.
Rav J. David Bleich (Contemporary Halakhic Problems 4:5-6) details the difference in communal structure between European communities of past generations and contemporary America:
In many communities it was customary for all householders to affix their signatures to the formal ketav rabanut, a rabbinic contract, presented to a newly appointed rabbi specifically designating him as the presiding judge of the local beit din. That practice was instituted in order to assure that no person might refuse to obey a summons issued by the communal rabbi on the plea that he didn’t recognize the rabbi’s judicial authority. Thus was the commandment “Judges and officers shall you place unto yourself” fulfilled. Not so in America. The kehillah system has not been replicated in this country. Rabbis are engaged by individual congregations rather then by the community at large. Membership in a synagogue doesn’t ipso facto imply binding acceptance of the synagogue’s rabbi, no matter how qualified he may be, with regard to religious or jurisprudential matters that are personal in nature. The result is that no rabbi enjoys the authority to compel a litigant to appear before him and to accept his judicial authority.
A Practical Example
A practical example illustrates the chaos that prevails in the Jewish community in America. Rav Moshe Snow placed a bid on a house in Brooklyn approximately thirty years ago. The bid was immediately accepted, but soon after a higher bid was offered. The homeowner then informed Rav Snow that he must match the higher bid, or he would call the original deal off. Rav Snow sought the advice of Rav Moshe Feinstein, who warned that the homeowner was going to receive a mi shepara. Rav Snow reported Rav Moshe’s comments to the homeowner, and he impudently responded, “Rav Moshe is not my rabbi; I don’t have to follow him!” Consequently, the homeowner ignored Rav Moshe’s warning and sold the house to the highest bidder.
Rav Bleich’s Proposed Solution
Rav Bleich (p. 16) presents a solution to this problem, organizing a national beit din:
By establishing a fairly large roster of dayanim and permitting litigants to use a limited form of the zabla system - litigants might be permitted to designate the members of the beit din that would hear this case but would be limited in being able to select a panel of dayanim only from among the designated list of members of the national beit din.
This type of beit din adopts the advantages of the zabla system, yet has the potential to control the problems with it. The national beit din could carefully monitor and verify the integrity of the dayanim participating in the zabla. Such an organization could also monitor the behavior of the to’anim [rabbinical lawyers, whose status is discussed in two later chapters - C. J.], who in the current system are essentially not monitored.
Comments on Rav Bleich’s Proposal
Rav Bleich’s proposal seems like the appropriate solution to the chaotic system that exists today. As he notes, it would also help ameliorate the agunah problem, by empowering the entire community in pressuring a recalcitrant spouse to participate in the get ceremony. In fact, Rav Bleich writes that Rav Yaakov Kaminetzky suggested this approach to him.
However, Rav Leib Landesman told me that even if a national beit din were to be formed, he believes that one still retains the right to insist on zabla to the point of choosing a dayan whose name does not appear on the roster. According to Rav Landesman, even such a national roster would not attain the status of a beit din kavua. Rav Landesman reasons that people lose their right to request zabla only if they themselves take positive action to accept a beit din kavua (such as by signing the European ketav rabanut that Rav Bleich describes). On the other hand, if rabbis or Jewish communal leaders adopt a national roster, their adoption of the roster would not bind their congregants. Thus, Rav Bleich’s proposal appears difficult to implement in practice.
I have heard of a couple of additional suggestions to modify zabla in a manner that can prevent turmoil. Sometimes, each litigant will select a beit din (rather than an individual dayan), and each of the selected batei din will assign one of its dayanim to the case. Those two dayanim then select a third dayan. Initially selecting batei din, rather than individual dayanim, reduces the sense that each rabbi should advocate on behalf of the litigant who selected him. Alternatively, rather than each beit din assigning one of its own dayanim, the two batei din can select a third beit din to hear the case. Finally, a system has been suggested whereby the defendant would name three reputable batei din, and the plaintiff would select one of these batei din to hear the case.
Rav Willig and Rav Goldberg’s Proposals
In the absence of a national roster of dayanim, Rav Mordechai Willig (in a lecture to the convention of the Rabbinical Council of America) reported that Rav Zalman Nechemia Goldberg suggested a proposal for as many communities as would cooperate. All member synagogues of a particular umbrella organization could designate that organization’s beit din as their community’s beit din. For example, every synagogue that belongs to the Orthodox Union could accept the (OU/RCA) Beth Din of America. Consequently, the synagogues would require, as a condition for receiving synagogue membership, that every congregant sign a binding arbitration agreement to litigate all disputes with his fellow congregants at the Beth Din of America. From that point on, nobody in the synagogue could ever demand zabla as a means to procrastinate.
Of course, it is hard to imagine many synagogues imposing such a precondition for membership. Accordingly, Rav Willig suggested a more modest goal, which he said that Rav Goldberg also considered halachically viable. Rav Willig’s proposal calls for each synagogue, as a community, signing a declaration that all disputes must be submitted to its umbrella organization’s beit din. The document would seem to have no authority in American law, but Rav Willig and Rav Goldberg believe that it would halachically establish the specified beit din as a beit din kavu’a, stripping requests for zabla of their halachic merit. Orthodox communities could then pressure one who fails to cooperate with the designated beit din as they would someone who refuses to appear in any beit din.
Conclusion
Some leading contemporary rabbis have offered interesting proposals to alleviate the current chaos in the Jewish community in America. Nevertheless, batei din in America today have not yet found a completely effective way to prevent people from procrastinating or avoiding a particular beit din by demanding zabla. In situations where the two litigants begin their relationship amicably, such as two people planning their future partnership, they can sign a binding arbitration agreement that commits them to the jurisdiction of a particular beit din. Similarly, marrying couples should sign a binding arbitration agreement as part of their halachic prenuptial agreement. On the other hand, when no agreement has been signed in advance, batei din lack any enforceable means to prevent the system’s potential abuses. Although the system in America is chaotic, one should strive to act honorably in cases of monetary dispute. When monetary disputes arise, the Mishnah Berurah (606:1), in the context of the laws of repentance prior to Yom Kippur, advocates approaching a Rav for guidance on how to act in the most honest way, lest people’s own temptations get the best of them. The Mishnah Berurah’s comments are especially relevant in our present situation.
Postscript
Due to the reported existence of unscrupulous batei din, we have chosen to add a few criteria by which to assess a beit din’s credibility. An honorable Beit Din must avoid conflicts of interest (Shulchan Aruch, C.M. 7:12 and 37:1), anything that even slightly resembles bribery (C.M. 9:1), and excessively high fees (C.M. 9:5). In addition, they may not accept the testimony of one litigant when his adversary is not present (C.M. 17:5), and they must thoroughly investigate all facts (see Rashi’s commentary to Bereishit 11:5). Indeed, the Chazon Ish is often quoted as saying that most erroneous halachic rulings stem from a deficient understanding of the facts. Finally, the beit din must not allow rabbis of ordinary stature to rule on matters of great complexity or import (see Teshuvot Meishiv Davar 4:50). For example, the Noda Biy’hudah (vol. 2 Y.D. 88) criticizes an ordinary rabbi for ruling on a case of ro’eh machmat tashmish, a complex area of the laws of family purity that can potentially result in forcing a couple to divorce (see Shulchan Aruch, Yoreh Deah 187). Rav Moshe Feinstein (Teshuvot Igrot Moshe, Even Ha’ezer 1:64) similarly writes that ordinary rabbis should not rule on matters of contraception.
Pesharah in Theory and in Practice
Promoting pesharah, compromise, has become a key element in the practice of batei din today. Our present approach, however, evolved from mixed attitudes in earlier generations. In this chapter, we explore the development of pesharah in batei din from Talmudic times until now.
Talmudic Background
Although nowadays pesharot play a major role in the rulings of batei din, not all Tannaim viewed them favorably. Rabbi Eliezer ben Rabbi Yose Haglili (Sanhedrin 6b) prohibits encouraging a pesharah, condemning dayanim who promote it as sinners who “insult the Divine!” Rabbi Eliezer ben Rabbi Yose Haglili apparently believes that pesharah compromises judicial integrity. He approves of pesharah outside of the beit din, following the practice of Aharon, who privately coaxed disputing parties into compromising (see Rashi and Tosafot ad loc.). However, he objects to judges veering from the model of Moshe, who imposed rigid justice, “letting the ruling split the mountain” in court.
Rabbi Yehoshua ben Korchah adopts the opposite approach to pesharot. He not only permits judges to encourage pesharot, but he even argues that they are performing a mitzvah in doing so. He notes that the prophet Zechariah (8:16) implores judges to pursue both truth and peace. At first glance, these goals appear contradictory, but Rabbi Yehoshua explains that a pesharah achieves both truth and peace. The Halachah follows his opinion (Rambam, Hilchot Sanhedrin 22:4, and Shulchan Aruch, Choshen Mishpat 12:2).
A proper pesharah does not merely divide the responsibility equally between the litigants. In fact, the Gemara (Bava Batra 133b) specifically condemns those judges who routinely engage in this practice, derogatorily referring to them as “midway judges” (dayanei chatzatzta). Moreover, in some ways we treat pesharah as simply an alternative form of true justice. For example, the Shulchan Aruch (Choshen Mishpat 12:2) equates them when he asserts, “Just as the judge is forbidden to pervert din (justice), so too he is forbidden to pervert compromise.” Rav Akiva Eiger adds that just as a judge who rules incorrectly in din must reverse his verdict, so, too, when a judge errs when making a pesharah, his decision should be reversed.
Rav Soloveitchik’s Explanation of Pesharah
In Reflections of the Rav (1:53-54), Rav Yosef Dov Soloveitchik’s eloquent explanation of the distinction between din and pesharah is presented:
Din pits one party against the other. The dayan analyzes the relevant facts of the case and applies the appropriate legal sanctions as described by the Choshen Mishpat. The law is administrated with cold impartiality and its decisions are dictated by objective data. One party emerges the victor, his case vindicated. The plea of the other is denied. Discord and resentment persist even as the court docket is cleared and the case is closed. The legal issue has been resolved, but human bitterness continues to fester.
In pesharah, however, social harmony is the primary concern of the dayan. The fine points of the law and the determination of precise facts are of secondary importance. The goal is not to be judicially astute but to be socially healing. The psychology of the contenders, their socio-economic status and values, as well as the general temper of society are the primary ingredients employed in the pesharah process. These considerations are evaluated within the broad halachic parameters of the Choshen Mishpat, and the final resolution of the conflict is a delicate and sensitive blending of both objective legal norms and subjective humanistic goals. For this reason, pesharah is the preferred alternative.... Pesharah is a juridical procedure presided over by the dayan; it does not contradict the law but is its preferred and finest fulfillment.
Should a Dayan Suggest and Encourage Pesharot?
The Shulchan Aruch (C.M. 12:2; based on Sanhedrin 6b) rules that a dayan should initially ask the litigants if they wish to engage in pure din or in pesharah. Commentaries to the Shulchan Aruch debate whether he means that dayanim should merely raise the possibility of making a pesharah, or that they should strongly urge the parties to compromise. The Taz, citing the Maharal of Prague, writes that the dayan should suggest pesharah, but he does not have to “pursue pesharah so vigorously.” The Sema (12:6), on the other hand, asserts that the dayan should strongly encourage the litigants to agree to a pesharah by convincing them that pesharah is in their best interest.
The majority of authorities side with the Sema, that dayanim should actively promote pesharah (Aruch Hashulchan, C.M. 12:2; Kovetz Haposkim on C.M. 12:2; and aforementioned comments of Rav Soloveitchik). In fact, the Shulchan Aruch seems to endorse the Sema’s interpretation, as he states, “Any beit din that engages exclusively in pesharah is worthy of praise” (ibid.). Rav Itamar Warhaftig reports that Rav Zalman Nechemia Goldberg tries to motivate people to choose pesharah by informing them that it is faster and cheaper than pursuing a ruling according to strict Halachah.
Indeed, the Shulchan Aruch (C. M. 12:20) goes as far as to say that dayanim should avoid, if at all possible, judging strictly according to din. The Vilna Gaon (Biur Hagra 12:30) cites a passage from the Yerushalmi as a basis for this concept. The Yerushalmi relates that rabbis refused to judge according to strict din for fear that they would err. The corpus of Jewish monetary law, with all its intricate and complex details, intimidates even the greatest scholars. By stating at the outset that they will not judge the case according to strict din, the dayanim obviate concern for errors.
What is Pesharah?
Although we generally translate pesharah as compromise, significant debate surrounds the actual substance of pesharah. Some view the goal of a pesharah as somewhat akin to marriage counseling or mediation - coaxing the parties to accept a compromise. Professor Eliav Shochetman (Seder Hadin pp. 210-211) cites the practice of Tunisian dayanim to suggest a pesharah to each litigant individually, in the absence of his opponent. Thus, neither litigant feels pressure to resist pesharah simply to maintain his dignity and pride in the presence of his opponent. Interestingly, I heard from Rav Israel Leiter (in 1994) that judges in pre-war Galicia also followed this practice.
Moreover, the Tunisian rabbinic court judges (cited in Seder Hadin p. 210) would suggest to the litigants’ friends that they, too, should privately urge the litigants to accept a pesharah. Professor Shochetman compares this approach to asking attorneys to urge their clients to accept a pesharah. Professor Shochetman writes (Seder Hadin p. 211 note 19) that this is a reasonable suggestion only if the lawyer practices law ethically, working for the benefit of his client and not seeking to prolong the case in order to increase his billable hours.
Other authorities also appear to understand pesharah as a form of mediation. The Shevut Yaakov (2:145, cited by Pitchei Teshuvah, C.M. 12:3) writes that pesharah serves “to mediate peace.” Rav Shmuel Mohilewer (Teshuvot C.M. 9 p. 328) similarly writes:
The practice among all batei din is that if the judges realize that their final ruling will lead to serious fights, and it might lead to the beit din’s ruling being ignored, then they try to convince a litigant to forgive some of the debt in order to preserve and maintain peace.
Rav Yosef Dov Soloveitchik (quoted in Nefesh Harav pp. 267-268) asserts that a pesharah should incorporate lifnim mishurat hadin (beyond the letter of the law) and equity. Rav Soloveitchik’s approach depicts pesharah as a loftier, more ideal form of justice, as opposed to a pragmatic way to preserve peace. Rav Soloveitchik bases his understanding on Rashi and the Ramban (on Devarim 6:18), who seem to equate pesharah with the concept of acting lifnim mishurat hadin. Similarly, the Rama (Choshen Mishpat 12:2) juxtaposes his discussion of pesharah and lifnim mishurat hadin.
In practice, not all rabbinical courts follow the same procedures for pesharah, nor do they all harbor the same attitude towards it. Accordingly, before submitting a case to a particular beit din, one must clarify how the beit din defines and implements pesharah.
Pesharah to Avoid Taking an Oath
The Gemara (Sanhedrin 6b) asserts that once the beit din has issued its ruling (gemar din), it is no longer permitted to impose a pesharah. Nevertheless, if the ruling requires a litigant to swear, Tosafot (s.v. Nigmar Hadin) write, “If the beit din concludes that one of the parties is obligated to take an oath, the beit din may suggest a pesharah in order to avoid having an oath taken.” The Shulchan Aruch (C.M. 12:2) codifies Tosafot’s opinion.
Chazal generally hesitated to administer oaths. The Gemara (Shevuot 39a) describes that the entire world shook when God issued the prohibition of swearing falsely. Indeed, the Mishnah (Bava Metzia 33b) tells of people who were willing to spend considerable sums of money rather than take an oath. The consequence of swearing expresses itself in the Talmudic story (Gittin 35a) of a woman who took an oath without realizing that it contained a minuscule falsehood. Soon afterwards, one of her children passed away.
Accordingly, it is not surprising that almost all batei din today impose a pesharah when the strict Halachah obligates one of the sides to take an oath. They usually permit a pesharah (in the sense of making peace, not ruling according to equitable presumptions) to deviate up to one third from the monetary award mandated by strict Halachah (seemingly based on Teshuvot Shevut Yaakov 2:145). Indeed, the practice today is not only to suggest a pesharah in this case (as permitted by Tosafot and the Shulchan Aruch) but to impose a pesharah in such a situation. For example, Rav Itamar Warhaftig recounted that Rav Shlomo Min Hahar (a prominent Jerusalem rabbi) once paid a considerable amount of money in order to avoid an oath. Indeed, Rav Gedalia Schwartz told me that he has never seen an oath taken in any beit din.
However, Rav Shlomo Levy (Techumin 12:327-334) argues forcefully that, the valid reasons to avoid an oath notwithstanding, the policy of imposing a pesharah instead might be driving thousands of Jews away from litigation in batei din. Without the ability to obtain a ruling according to strict din, many Jews might be opting to instead litigate in civil court (in violation of Halacha). Moreover, Rav Levy argues that the practice of imposing a pesharah may not have such a strong halachic basis. He urges dayanim to strictly curtail the frequency that an oath is replaced by pesharah.
Current Practice
Nowadays, batei din often require the litigants to sign a shtar beirurin (binding arbitration agreement; see Mo’eid Katan 18b), which includes a clause empowering dayanim to judge according to either din or pesharah. Moreover, some batei din regard a litigant who insists on din and will not agree to pesharah as one who refuses to come to beit din. We see how far batei din often go to strongly encourage the parties to accept pesharah. Nevertheless, contemporary batei din’s strong encouragement of pesharah does not necessarily preclude them from ruling unequivocally in favor of one party. Rav Mordechai Willig once commented that “100% to 0%” is sometimes an appropriate pesharah. In some cases, one side presents such a persuasive argument that even a beit din seeking to find a compromise must wholeheartedly accept his claims.
The Role of Lawyers in Beit Din
Part I: The Problem
To’anim, rabbinical lawyers or pleaders, often represent clients in many batei din. However, this practice raises serious halachic questions, so we will outline the basic approaches to utilizing to’anim.
Introduction
The Torah (Shemot 22:8) commands that the litigants’ “words should be spoken to the judges.” The Mechilta comments that this verse teaches that the litigants (ba’alei din) may not use lawyers in beit din. The Torah Temimah explains:
It appears that the Mechilta is teaching that the litigants should not present their case to the dayanim through interpreters or to’anim. Rather, the dayanim must hear testimony from the mouths of the litigants themselves, as the verse states, “The words of both parties should come before the dayanim”…. However, when to’anim are employed, the words of the litigants reach the ears of the to’anim and not the dayanim. [The Mechilta] also precludes lawyers who try to convince the dayanim of the correctness of their client’s perspective, as is done in the non-Jewish courts. The reason for this appears to be that the majority of these professional to’anim are hired by one litigant to present his claims. They are sly people who find clever and deceitful means of misleading the dayanim to rule in favor of their clients. Therefore, the Torah sought to eliminate this problem by not permitting to’anim to appear in court; rather, the litigants themselves should plead their case to the dayanim.
Halachic Support for the Torah Temimah’s Explanation
Many halachic sources support the Torah Temimah’s emphatic assertion that the Torah wants the dayanim to hear the litigants’ claims directly. For example, the Halachah (Shevu’ot 31a and Shulchan Aruch, C.M. 17:5) forbids one litigant from presenting his case to the dayanim in the absence of his adversary. The Sema (17:10) explains that if the opposing litigant is not present, the litigant who is present will not be afraid to lie. Similarly, one might not hesitate to lie to his lawyer, so the lawyer will subsequently not hesitate to present a false case.
In addition, the Halachah (Shulchan Aruch, C.M. 17:6) forbids witnesses from testifying through a translator. According to the Pitchei Teshuvah (C.M. 17:12), litigants may not use translators even if both parties have them. We hesitate to accept translators because a dayan stands a better chance of discovering and clarifying the truth when he hears the testimony directly from the witnesses.
For this reason, the Shulchan Aruch (C.M. 124) requires the litigants to appear in court in person. Only Torah scholars and “dignified women” (nashim yekarot) may claim that it is beneath their dignity to appear in beit din. In these two instances, a court agent (sh’liach beit din) comes to the sage or woman, transcribes his or her arguments, and subsequently presents them to the dayanim.
Preserving the Innocence of the Litigants
Traditional sources also seem to discourage the presence of lawyers in beit din in order to preserve the “innocence” of the litigants. For example, the Rama (C.M. 17:5) rules that a Torah scholar should not inform a litigant whether his position is correct, lest the litigant deduce from the information how to fraudulently win his case. The Mishnah (Avot 1:8) prohibits acting as an attorney (k’orchei hadayanim). In his commentary to the Mishnah (ad loc.), the Rambam explains that one should not coach a litigant by teaching him which claims will help him win the case. The Rambam adds that this prohibition applies even when one knows that the litigant deserves to win. Even in such a case, the litigant must present the facts truthfully to the beit din and may not lie in order to ensure his victory. Similarly, the Gemara (Ketubot 52b) discourages Torah scholars from advising individuals (offering “lawyerly” advice) even outside the context of beit din.
In order to understand the incident described in the Gemara properly, we must provide some background in Jewish family Halachah. According to Halachah, a deceased man’s heirs must support his widow, unless she demands the payment of her ketubah (Shulchan Aruch, Even Ha’ezer 93:1-2). The heirs may not compel her to receive the ketubah payment in lieu of support from the estate. Moreover, Halachah requires that the widow’s continuing medical expenses be charged to the heirs of her late husband’s estate, rather than deducting the expenses from her ketubah. On the other hand, fixed-cost contracts for medical care may be subtracted from the ketubah payment. Based on these laws, the Gemara records:
The relatives of Rabbi Yochanan had [to support] their father’s wife [widow] who needed daily medical treatment. They approached Rabbi Yochanan for advice. He responded, “Go, fix a price with the doctor [for all the widow’s future medical treatment].” Rabbi Yochanan later [regretted his action and] stated, “We have made ourselves like lawyers (orchei hadayanim).” Initially, what did Rabbi Yochanan think [when he decided to advise his relatives]? Since the Tanach states, “From one’s relatives one should not turn away (Yeshayahu 58:7),” [he thought that he should assist his relatives]. In the end, [he regretted his decision because] a prominent figure (adam chashuv) is different [and this behavior does not befit him].
Rabbi Yochanan’s advice to the heirs enabled them to deduct her medical expenses from future ketubah payments, thus saving them a significant amount of money at her loss. From this story, we see the negative attitude Chazal maintained towards Torah scholars offering legal advice even outside the context of beit din. Chazal sought to maintain the innocence of all parties concerned and tried to avoid people contriving means to circumvent laws established for the betterment of individuals, families, and society.
The first Mishnah in Bava Metzia exemplifies this concern. If two people each claim full ownership of an object, the Mishnah rules that, after taking a rabbinically mandated oath, each party receives half of the disputed item. However, if one party claims to own only half of the item, then, after taking oaths to buttress their arguments, the litigant who claims the entire object receives three fourths of the object, while his adversary receives only a quarter.
If the litigants knew the Halachah in advance, the man who believes that he owns half the disputed object might be tempted to falsely state that it is entirely his, for that claim would entitle him to what he believes he truly deserves, half of the disputed item (see Tosafot s.v.V’zeh).
While training in the Jerusalem District Rabbinical Court in May 1994, I witnessed another example of why we should not brief litigants. A couple appeared in beit din, without lawyers, regarding a marital dispute. The wife demanded that beit din order her husband to give a get (divorce document), charging that he physically abused her. After she presented her argument, the beit din asked the husband for his response. He answered that he did indeed beat her, but he thought there was just cause to do so; she had a tendency to fall asleep when he delivered a d'var Torah at the family's Friday night table. Immediately, Rav Shlomo Fischer berated the husband and sternly warned him that he must give his wife a get or face a jail sentence from the beit din (see Shulchan Aruch, Even Ha’ezer 154:3).
This case was resolved extremely expediently, largely due to the absence of a lawyer. The husband presumably responded that he engaged in spouse abuse because he mistakenly believed that the beit din would condone his behavior under the circumstances he described. A to’ein might have prevented him from admitting his guilt.
Conclusion
The Mishnah (Pirkei Avot 1:8) teaches that one should not act as a lawyer. Both Rashi and Rambam explain that this passage refers to coaching a litigant so he will emerge victorious in beit din. Advising the litigants interferes with the proper functioning of a beit din, which needs candid presentations from the litigants to the dayanim.
Part II: Permissible Situations
Although we have seen that many traditional sources frown upon the presence of lawyers in beit din, they have nevertheless become an integral part of many trials. In this section, we trace the development of this phenomenon.
Shevu’ot 31a
To begin our discussion, we cite at some length one last Talmudic passage that illustrates Chazal’s negative attitude towards hiring a professional representative in beit din:
From where do we know that if one litigant comes to beit din dressed in rags and the other in the finest of clothes, then the beit din orders the latter, “Either dress similarly to your adversary or give your adversary clothes of the same quality to wear”? As it says, “Avoid all falsities” (Shemot 23:7) [whereas the dayanim might judge a litigant more favorably due to his clothing]…. From where do we derive that one should not plead his case to the dayanim in the absence of the opposing litigant? [Also] as it says, “Avoid all falsities”....
[The Navi addresses] “he that does something not good among his nations (Yechezkel 18:18).” Rav says that this verse refers to one who appoints a representative [to present a case] in beit din (ba beharsha’ah). Shmuel says that it refers to a rough person who purchases property [at a low price] which has liens upon it [and believes he will not be evicted by the lienholder due to his roughness].
In this general discussion of methods to ensure a fair trial, Rav again demonstrates Chazal’s displeasure with appointing legal representatives. Rashi (s.v. Zeh) explains that the agent will not agree to a compromise (pesharah), because he is not halachically empowered to do so. Tosafot (s.v. Zeh), however, limit Rav’s statement, paving the way to permit appointing a to’ein under certain circumstances:
This [prohibition] applies only when he hires a violent representative or an exceedingly argumentative individual who is entering a conflict in which he should have no part. However, if the representative is working to retrieve lost money that the litigant would otherwise be incapable of retrieving, then he is performing a mitzvah.
The Rambam adopts a somewhat similar approach (Teshuvot 272, Blau edition):
In my opinion, it is forbidden to appoint a representative unless it is absolutely necessary to do so - such as if the plaintiff lives in a different city than the defendant [and is unable to come to the defendant’s city], or if the plaintiff is ill, or other similar justifiable needs.
Rav Tzvi Yehuda Ben Yaakov (Techumin 16:352) suggests that perhaps an inarticulate individual, who is incapable of competently representing his case, should also be permitted to send a representative.
Acharonim Note the Change
The Shulchan Aruch (Choshen Mishpat 123:15 and 124:1) strictly limits when a litigant may appoint a representative to plead his case in beit din. He permits only the plaintiff to send a representative, and only if he is not present in the town where the trial takes place. According to the Shulchan Aruch, the defendant may never appoint a lawyer. Since the trial takes place in a beit din in the locale of the defendant, the Shulchan Aruch does not see a legitimate reason for the defendant to appoint a lawyer. However, the Rama (based on the above-cited passage from Tosafot) disagrees and permits the plaintiff to use a lawyer even if he could attend the trial himself, provided that the lawyer seeks to help him legitimately recover his money and is not simply a combative individual meddling where he has no business.
The Shach (C.M. 124:1) notes that even the Rama, who permits a plaintiff to send a representative to a nearby beit din in his stead, forbids the plaintiff from coming to beit din himself and bringing a lawyer to coach him. Nonetheless, the Shach reports that in his time (the seventeenth century), the practice developed that a counsel routinely accompanied the plaintiff to beit din. He explains that the plaintiff can, technically, transfer title of his monetary claim to the lawyer, making the lawyer himself a litigant. This option does not exist for the defendant, so he may not appoint a lawyer.
The Aruch Hashulchan (C.M. 124:2) cites the Tumim, who notes that in his time, the practice was that even the defendant could appoint a lawyer to act on his behalf. In Israel, the batei din permit the appearance of counsel (see Takanot Hadiyun of 5753 5:41). In the United States, batei din also permit the appearance of counsel. Without the presence of people acting as lawyers, Rav Yonah Reiss (Beit She’arim 2:201) notes that civil courts will not honor a beit din’s decision, even if the litigants sign a binding arbitration agreement.
Limitations on Lawyers
Despite the eventual acceptance of lawyers in beit din proceedings, a fundamentally unfavorable attitude towards legal representation of litigants nevertheless persists. For example, the Aruch Hashulchan (ibid.) writes:
If the litigants do not appear in beit din and the beit din sees that the Halachah in the particular case cannot be determined merely with the lawyers present, the beit din may insist that the litigants themselves appear in beit din.
Moreover, the guidelines for the Israeli Rabbinate’s batei din state, “Beit din may forbid the presence of a lawyer if it sees that the lawyer is obstructing justice, fails to adhere to beit din procedures, or behaves disrespectfully towards the beit din” (Takanot Hadiyun of 5753 5:45). They further demand that the litigants plead their cases to the dayanim before their lawyers speak (6:54). Thus, the dayanim can hear the litigants speak candidly before their lawyers put a “positive spin” on their clients’ claims.
Rav Yonah Reiss (Beit She’arim 2:200-201) similarly notes that to’anim should be allowed only in cases where they are necessary. For example, there is no need for to’anim if the litigants are capable of representing themselves. Moreover, the to’anim must be known as honest individuals, and there must be some way to rescind their license should they act unscrupulously. Due to this last consideration, the Beth Din of America (Rules and Procedures, Section 12) permits only licensed attorneys to serve as to’anim.
Reasons for Change
There are a number of reasons for the trend to permit lawyers to appear in beit din. Professor Nachum Rakover (Legal Representation and Halacha p. 343) cites the Teshuvot Choshen Ha’eifod (Choshen Mishpat 43:1), who explains that it is especially important for a lawyer to represent the sides in a domestic dispute because “often the parties become emotionally overwhelmed and are unable to respond effectively.” He further notes that “it is possible to make peace when objective individuals are involved who will not hurl invectives at the other side.”
Professor Eliav Shochetman (Seder Hadin p. 68) quotes Rav Shear Yashuv Cohen (Torah Shebaal Peh 22:64) as suggesting a different approach. Rav Cohen seeks to view to’anim as officers of the beit din, assisting the dayanim to arrive at a truthful verdict. Along these lines, Rav Moshe Shternbuch (Teshuvot Vehanhagot 1:794) writes:
If the to’ein acts as many lawyers do - teaching his clients to win a case despite the fraud involved - there is no greater sin. However, if the to’ein acts like a dayan and is sincerely convinced of the correctness of his client’s position... then acting as a to’ein is certainly permissible, and even constitutes a mitzvah of helping someone retrieve a lost object, or preventing a theft.
Reb Elya Lichter suggested to me that the Shulchan Aruch (C.M. 17:9) requires the dayanim to maintain a perilously tight balance between two competing halachic principles. In order to preserve objectivity, Halachah forbids dayanim “putting words in the mouth” of a litigant (al ta’as atzm’cha k’orchei hadayanim). On the other hand, beit din must assist a litigant who is struggling to present his claim but is unable to do so (p’tach picha l’ileim). Accordingly, Reb Elya Lichter proposed that the presence of a lawyer eliminates the need for the beit din to maintain this delicate balance.
I am familiar with an interesting example of p’tach picha l’ileim that occurred when only one side brought a to’ein to beit din. A divorced couple appeared in the beit din to resolve a number of outstanding monetary disputes, including payment of the ketubah. A to’ein vigorously defended the man, who had confessed to physically abusing his ex-wife, while she came without counsel. After the woman presented her demands, the beit din saw that she knew far less than her husband’s to’ein and was thus unable to present nearly as coherent a case. The Av Beit Din (Chief Justice) then raised the possibility that she deserved the return of the money her family had paid for the couple’s wedding. Rav Moshe Feinstein (Teshuvot Igrot Moshe, Even Ha’ezer 4:8) rules that since the groom must pay for the wedding celebration (see Ketubot 10a), the money paid by the bride’s family for the wedding should be considered money that the wife brought into the marriage. The husband must pay such funds in addition to the ketubah when the couple divorces. The beit din thus discharged its obligation of p’tach picha l’ileim, presenting a claim for thousands of dollars that the woman did not know to ask for herself.
Conclusion
Halachah certainly does not view legal representation in beit din as an ideal situation. Nevertheless, various realities effected an adjustment in policy, so for at least the past hundred years, legal representation has been the norm in batei din. A compromise of sorts requires that the litigants plead first, and the counsel speaks later.
Pesach
May One Kasher a Conventional Oven for Pesach
In many observant homes, people wish to kasher (render as kosher) their conventional ovens for Pesach. No consensus has emerged regarding the proper way to perform this task, so different families and communities follow different practices. This chapter explores the opinions of several major contemporary authorities.
An Introduction to Kashering
In Parshat Matot (Bemidbar 31:21-23) the Torah presents the basic rules of kashering: “Every object that has gone through fire, you shall pass through fire and it will become pure.” This verse teaches that every non-kosher utensil that was used directly with fire must be kashered with fire. Rashi (ad loc., based on Pesachim 30b and Avodah Zarah 75b) explains that the phrase “has gone through fire” alludes to one of two methods for kashering utensils, depending on how the utensil cooked the non-kosher food. If the non-kosher food was cooked directly on the utensil (such as on a grill), absent a liquid medium, then one kashers the utensil by heating it in a fire (libun). If, however, the non-kosher food was boiled in a pot containing hot water, then the utensil may be kashered via boiling hot water (hag’alah). The Torah also teaches that if only cold non-kosher food was placed in a utensil, one merely needs to clean the dish before using it with kosher food (Bemidbar 31:23).
Rashi articulates the general principle that emerges from these verses: kederech tashmisho hag'alato - the manner in which a utensil was used for non-kosher food preparation is the manner in which it should be kashered. The Gemara (Pesachim 30b) formulates this rule similarly: kevol'o kach polto - the manner in which the utensil absorbed the flavor of non-kosher food is the same manner in which it will let out that flavor.
Preventing the Non-Kosher Food’s Reentry
At first glance, the kashering process appears to contain a glaring contradiction. Kashering a utensil extracts the non-kosher flavor that had been absorbed within it from past cooking. However, the process itself essentially cooks the same food particles in the utensil! Why do we not worry that the flavor will thus immediately reenter the utensil?
Tosafot (Avodah Zarah 76a s.v. Mikan) acknowledge this problem and therefore suggest kashering utensils in at least sixty times as much water as their own volume. In this manner, the immense quantity of water nullifies the non-kosher flavor emitted into the hot water, so the flavor does not reenter the utensil.
Tosafot add that if the utensil has not been used within the past twenty-four hours (eino ben yomo), then such a great volume of water is not necessary. Their ruling stems from the principle that after twenty-four hours of sitting in a utensil, the non-kosher food develops a foul taste (notein ta'am lifgam), so the flavor no longer prohibits use of the pot. This reason alone, though, does not suffice to permit use of the pot without kashering, because the Gemara (Avodah Zarah 76a) mentions that the Rabbis prohibited even using a pot containing a foul non-kosher taste, lest one come to use a pot containing a non-kosher taste within twenty-four hours, when the taste has not yet spoiled. The Rosh (Avodah Zarah 5:36) explains that kashering a utensil solves this problem, as the pot releases the flavor into the water and then reabsorbs it. Thus, by the end of the process the foul taste is permitted even on a rabbinic level because it is several steps removed from the non-kosher food that emitted it (nat bar nat).
The Rama (Yoreh Deah 121:2) rules that one may kasher a utensil only if it has not been used within the past twenty-four hours. However, the Chazon Ish (Yoreh Deah 23:1) offers a method of kashering utensils that have been used within twenty-four hours, without requiring a huge volume of water. He suggests placing a foul-tasting substance in the kashering water, so the extracted taste from the utensil will instantaneously turn foul upon contact with the water (see Shulchan Aruch, Y.D. 95:4). Thus, even if the utensil reabsorbs what it released into the pot, the utensil will remain kosher. I have heard that many reliable kashrut agencies follow this leniency of the Chazon Ish in cases of great need.
Deliberately Nullifying a Prohibition
Kashering also seems to violate the prohibition against intentionally mixing small quantities of non-kosher food with larger amounts of kosher food for the purpose of nullifying the non-kosher food (ein mevatlin isur lechatchilah). However this prohibition applies only when one intends to benefit from the non-kosher food that is nullified in the kosher food. When kashering, though, one has absolutely no interest in the utensils’ non-kosher taste.
The Distinction Between Hag’alah and Libun
We mentioned that sometimes kashering is effected by placing a vessel in boiling water (hag’alah), while other times a utensil must be placed directly in a fire (libun). The two processes function differently; kashering with boiling water extracts (maflit) absorbed taste, whereas kashering with fire chars the absorbed taste until it is utterly destroyed, removing its halachic status as food.
The Problem with Kashering Conventional Ovens
Kashering a conventional oven is significantly more difficult than kashering a pot. Hag’alah is not practical, and it seems that libun would anyway be required because the oven’s walls appear to absorb directly from the fire. The Shulchan Aruch (Orach Chaim 451:4) rules that libun is accomplished when sparks fly (nitzotzot nitzin) from the object being kashered. Rav Hershel Schachter told me that it seems to him that the general practice is to require 950 degrees Fahrenheit for libun, since that is the temperature at which sparks fly from untreated iron. Since conventional ovens that do not self-clean can be heated only to approximately 550 degrees Fahrenheit, it would seem that they cannot accomplish libun. Nevertheless, as we shall see, contemporary authorities have debated this point.
The Strict View - Rav Moshe Feinstein
Both Rav Shimon Eider (Halachos of Pesach 1:180) and Rav Aharon Felder (Ohalei Yeshurun p. 77) record that Rav Moshe Feinstein (Teshuvot Igrot Moshe, Yoreh Deah 1:59) requires libun for an oven, which may be accomplished only by focusing a blowtorch for seven minutes on an area no larger than eight square inches at a time. Since this task is time-consuming and difficult for many people to perform, many families instead thoroughly clean their ovens and then insert a box that covers the walls of the oven. In this way, no chametz can move from the oven walls to the food, as the chametz particles do not penetrate the insert’s walls.
The Lenient View - Rav Yosef Dov Soloveitchik and Rav Aharon Kotler
Many families follow the lenient opinion of Rav Yosef Dov Soloveitchik and Rav Aharon Kotler (quoted by Rav Eider, ibid.) that one can kasher a conventional oven by setting it to its maximum temperature for an hour or two. They base their view on the aforementioned principle of kevol'o kach polto (flavor is extracted from a utensil in the same manner as it was absorbed). Rav Soloveitchik argues that this principle can determine precisely how to kasher a specific item. Since an oven never absorbs flavor at a higher temperature than its maximum setting, it can be kashered at that temperature. On the other hand, Rav Moshe Feinstein believes that this rule merely determines which fundamental method of kashering should be used (hag’alah or libun), and that once one has determined that libun is required, rather than hag’alah, the general parameters of libun apply. Thus, sparks must fly from the utensil even if it never absorbed food at such intense heat.
Libun Kal for Chametz?
Rav Ovadia Yosef (Teshuvot Yechaveh Daat 2:63) bolsters the position of Rav Soloveitchik and Rav Kotler. He notes that the Rama (Orach Chaim 451:4) cites some Rishonim who believe that libun is accomplished (regarding Pesach, see Mishnah Berura 451:30) when the oven reaches the temperature at which straw burns (kash nisraf). Rav Hershel Schachter told me that it seems to him that common practice in America is to consider the temperature for libun kal to be 550 degrees Fahrenheit. Hence, this lighter form of libun (libun kal) can be accomplished even in most conventional ovens. Although the Rama himself requires libun until sparks fly (libun gamur) for utensils that truly need libun, he permits the more lenient libun kal for items that merely require hag’alah. While hag’alah does not normally suffice for kashering items that cook food without a liquid medium, the Gemara (Avodah Zarah 76a) permits kashering such items through mere hag’alah if they absorbed only kosher food (heteira bala), even though the food subsequently became non-kosher (see Rashi, Avodah Zarah 76a s.v. L'olam).
Many Rishonim equate chametz with food that was absorbed while it was still kosher and only later became non-kosher (since chametz was permitted at the time it was absorbed into the oven, before Pesach). Consequently, hag’alah would suffice to kasher utensils even if they absorbed chametz through fire. Based on this logic, Rav Ovadia Yosef argues that many authorities would permit kashering an oven for Pesach through libun kal. Those Rishonim who equate chametz before Pesach with food that only later became non-kosher would permit kashering an oven for Pesach by heating the oven to 550 degrees even if they did not accept Rav Soloveitchik’s interpretation of kevol'o kach polto as applying to individual utensils. Accordingly, Rav Ovadia rules (like Rav Soloveitchik and Rav Kotler) that one may kasher an oven for Pesach by running it on its highest setting.
Despite Rav Ovadia’s reasoning regarding chametz, Rav Gedalia Felder (Yesodei Yeshurun 6:157-158) writes the exact opposite, that one should be even stricter regarding Pesach than when kashering non-kosher ovens for year-round use. He notes that we routinely treat the prohibition against chametz on Pesach with unusual stringency (chumra d'chametz), so even one who kashers an oven during the year by running it on its highest setting should obey Rav Moshe’s view when kashering for Pesach.
Conclusion
Since there are cogent arguments for both strict and lenient approaches to kashering conventional ovens before Pesach, one should consult a Rav for guidance regarding this issue. This chapter does not address self-cleaning ovens, which appear to be easier to kasher. As Rav Elazar M. Teitz (based on the position of his father, Rav Pinchas Teitz) writes in his community Pesach guides (for Elizabeth, New Jersey), “Self-cleaning ovens are self-kashering.” Indeed, Rav Noach Oelbaum (Minchat Chein, Hagada Shel Pesach p. 23) writes that a regular cleaning cycle suffices to kasher a self-cleaning oven “since experience indicates that its heat exceeds the heat generated by conventional libun.”
It is worth noting that the rules for kashering between milk and meat during the year might differ from kashering for Pesach.
Kashering Dishwashers for Pesach
Dishwasher interiors are normally coated with porcelain, metal, or plastic. In this chapter, we discuss the feasibility of kashering diswashers whose interiors are made of these materials.
Kashering Earthenware
The Torah (Vayikra 6:21) teaches the laws concerning vessels in the Beit Hamikdash which absorbed “taste particles” of korbanot (sacrifices), and what happens when these tastes become forbidden as notar (leftovers from an expired korban). The Torah states that earthenware vessels that were used to cook korbanot must be destroyed. The Gemara (Pesachim 30b) states, based on this verse, that the flavor absorbed by an earthenware vessel can never be completely purged. Thus we see that metal can be kashered while earthenware generally cannot. The only way to kasher earthenware is by running it through a kiln (see Shulchan Aruch, Orach Chaim 451:1). Rabbeinu Tam (Tosafot, Pesachim 30b s.v. Hatorah) explains that a kiln does not purge the taste particles, but it recreates the utensil into a new object (cheftza), which has never been used to cook a korban.
The Status of Porcelain
Of the many types of earthenware, porcelain specifically is often used to coat dishwashers. Porcelain is essentially non-porous earthenware and therefore does not absorb in the same manner as regular earthenware. Consequently, Acharonim debate whether it absorbs anything from non-kosher food or not, due to its non-porous nature, and, assuming it does absorb, whether it can be kashered. The Darchei Teshuvah (121:26) cites numerous opinions regarding porcelain, ranging from those who believe that porcelain requires no kashering whatsoever (She’eilat Yaavetz 1:67) to those who believe that it may never be kashered. The Mishnah Berurah (451:163) rules strictly, that porcelain shares the same status as other earthenware, which may not be kashered at all. Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 4:6) summarizes this issue:
Much ink [has been] spilled in attempting to rule that since porcelain is non-porous it need not be kashered. Nevertheless, the consensus of halachic opinions, along with the accepted practice, is to treat porcelain as earthenware, which may not be kashered.
Accordingly, it would seem that a porcelain-coated dishwasher cannot be kashered. However, the Darchei Teshuvah cites those who factor in the lenient opinions on this issue when rendering decisions in already questionable cases, as an added reason to be lenient (senif lehakeil). As an example of such a case, Rav Moshe Feinstein (Teshuvot Igrot Moshe, Yoreh Deah 3:28-29) rules that if one purchases a home containing a non-kosher porcelain dishwasher, the dishwasher may be kashered. He reasons that not kashering the dishwasher would incur a significant monetary loss, leading to a situation in which the above leniencies may be used (also see Teshuvot Yabia Omer, Y.D. 1:6). However, he rules that it may be kashered only after it has not been used for a full year, and it must be fully kashered three times.
Rav Moshe combines three unrelated lenient minority opinions in this ruling. As mentioned above, some authorities permit kashering porcelain because of its non-absorbent nature. Additionally, Rav Moshe factors in the Baal Ha’itur’s view (cited by the Tur, Yoreh Deah 121) that although an earthenware vessel cannot be kashered in the conventional way, in certain situations it may be kashered by performing the kashering process three times. Although this represents only a minority view, halachic authorities occasionally cite it as an added consideration in their lenient rulings in case of great need. As a third lenient consideration, Rav Moshe quotes a celebrated opinion of the Chacham Tzvi (75, cited by the Shaarei Teshuvah 451:1). The Chacham Tzvi believes that after twelve months, the absorbed non-kosher flavor becomes “mere dust,” with no halachic status as a prohibited food. Hence, while after twenty-four hours an absorbed taste becomes rancid (noten ta’am lifgam; see Avodah Zarah 75b-76a) and is only rabbinically forbidden, after twelve months the flavor disappears completely.
Reactions among halachic authorities to the Chacham Tzvi’s ruling have been mixed. The Aruch Hashulchan (Yoreh Deah 122:4) rejects this leniency entirely, while the Chochmat Adam (55:4) appears to accept it. Adopting a middle approach, the Sha’arei Teshuvah (ibid.) rules that the Chacham Tzvi’s leniency may be used only as one lenient consideration, in combination with the Ba’al Ha’itur, if there is also a third lenient consideration.
Rav Moshe apparently follows the approach of the Sha’arei Teshuvah, combining three lenient approaches: those of the Ba’al Ha’itur and the Chacham Tzvi, along with that of Rav Yaakov Emden (She’eilat Ya’avetz 1:67), who maintains that porcelain does not require kashering. Rav Moshe therefore permits, in case of significant monetary loss, to kasher non-kosher porcelain dishwashers for the rest of the year, provided that the kashering is done three times after the appliance has not been used for an entire year. On the other hand, Rav Yosef Adler reports that Rav Yosef Dov Soloveitchik does not subscribe to Rav Moshe’s leniency. Rather, Rav Soloveitchik maintains that porcelain dishwashers may never be kashered.
It is vitally important to note that Rav Moshe does not apply his ruling to Pesach use. In a separate responsum, he rules that porcelain dishwashers may not be kashered for Pesach use under any circumstances (Teshuvot Igrot Moshe, Orach Chaim 3:58). His position conforms to the general trend of treating the prohibition against chametz on Pesach more strictly than the laws of kashrut for the rest of the year (chumra d’chametz). Just as we do not apply the leniencies of nullification by a 60:1 ratio (bitul beshishim) and (according to Ashkenazic practice) notein taam lifgam on Pesach, so, too, Rav Moshe does not apply his lenient view regarding dishwashers to Pesach.
Metal-Lined Dishwashers
In his aforementioned responsum, Rav Moshe rules that a metal-lined dishwasher may be kashered provided that it is first cleaned thoroughly. Several classical sources highlight the necessity of properly cleaning a utensil before kashering. Indeed, the Mishnah Berurah (451:156) writes, “Any utensil that one cannot extend his hand into [in order to thoroughly clean it] may not be kashered.”
While Rav Moshe does permit the kashering of those dishwashers that can be thoroughly cleaned, some rabbis object to kashering all dishwashers for Pesach due to the concern that they can never truly be cleaned thoroughly. A dishwasher’s many nooks and crannies generate this concern, and these rabbis worry that the many holes and crevices within the dishwasher make cleaning it thoroughly nearly impossible.
Nonetheless, some authorities do permit kashering metal dishwashers, but it is not entirely clear how to do so. The Torah articulates the basic guidelines of kashering in Bemidbar (31:23), “That which became not kosher through contact with fire must be kashered with fire, and that which became not kosher in a water medium, must be kashered in a water medium.” This verse establishes the principle that an item must be kashered in the same manner as its use. Dishwashers come in contact with food particles through hot water, so they should be kashered with hot water (hag’alah). Rav Moshe writes that when kashering a dishwasher, a hot brick must be placed inside the dishwasher to boost its water’s temperature to the boiling point, based on the practice of using boiling water whenever water is required (see Taz, Yoreh Deah 94:3 and Mishnah Berurah 452:8). Hence, even though the water’s temperature never climbs higher than 190 F in dishwashers, kashering them still requires boiling water.
On the other hand, Rav Mordechai Willig (SOY Guide to Kashrut p. 66) and Rav Yosef Adler (personal communication) quote Rav Soloveitchik’s view that if one is absolutely certain of the maximum temperature that the water reaches when the dishwasher absorbs non-kosher (or chametz) taste, then it may be kashered at that temperature. Rav Soloveitchik requires boiling water only when one is unsure of the maximum temperature to which the appliance has been exposed. Since one knows the maximum temperature that the dishwasher has reached, it may be kashered (after being left unused for at least twenty-four hours) simply by running it through a full wash cycle. In such a manner, the water in the machine is the hottest to which the appliance has ever been exposed and will thus purge the non-kosher flavor. The Mishnah Berurah (Shaar Hatziyun 451:196) seems to agree with Rav Soloveitchik’s contention by suggesting that most authorities understand the rule of kevol’o kach polto as meaning that each utensil is kashered with water that is as hot as the water that it uses (see our earlier chapter regarding kashering ovens).
Plastic Lined Dishwashers
Many dishwashers today are lined with plastic. The ability to kasher them depends on how to categorize materials (such as plastic) that did not exist in the time of the Talmud. Rav Moshe (Teshuvot Igrot Moshe, Orach Chaim 2:92) writes that one may not kasher synthetic rubber “since it is new and unaddressed in the classical sources.” The same would seemingly apply to plastic. Interestingly, though, it seems that Rav Moshe ruled this strictly only concerning Pesach, as Rav Shimon Eider (Halachos of Pesach p. 138 note 10) writes that Rav Moshe does permit kashering plastic during the rest of the year. Apparently, he considers this area to be another example of the chumra d’chametz (special Pesach stringencies).
Many contemporary authorities do not share Rav Moshe’s objection to kashering synthetic materials. Rav Eider (Halachos of Pesach p. 138 note 10) cites that Rav Yosef Eliyahu Henkin went so far as to rule that plastic does not require kashering at all, because it is smooth and does not absorb (shi’a velo bal’i). Although Rav Henkin’s view is a minority opinion, many contemporary authorities who assume that plastic does absorb non-kosher flavor nevertheless permit kashering it, even for Pesach. Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 4:6) and Rav Ovadia Yosef (Chazon Ovadia vol. 2 [Hagaddah Shel Pesach] p. 78) permit the kashering of plastic utensils for Pesach, as does Rav Gedalia Felder (Yesodei Yeshurun 6:170-173) in case of great need. According to these authorities, a utensil may be kashered as long as it does not contain earthenware. Indeed, Rav Yechiel Yaakov Weinberg (Teshuvot Seridei Eish 1:46) writes that the accepted practice is to kasher plastic, without limiting his ruling to non-Pesach use.
Conclusion
Each of the three types of dishwashers presents its own challenges in terms of kashering for Pesach. In addition, many of the relevant facts, such as the heat of a dishwashing cycle, are subject to change in light of technological developments. One should consult a competent rabbi regarding which approaches to follow.
Kashering a Microwave Oven for Pesach
This chapter discusses whether one may kasher a microwave for Pesach, as well as how to perform the kashering according to those authorities who permit it. While we outline the relevant points of debate, the reader is urged to consult his Rav for guidance concerning this complicated issue.
Objections to Kashering Microwaves
The very possibility of kashering a microwave presents two problems. Some rabbis express reservations about kashering microwave ovens due to the difficulty in thoroughly cleaning their many vent holes and crevices. Additionally, Rav Mordechai Willig told me (in 1992) that he believes one cannot kasher a microwave for Pesach if it is lined with plastic. He notes that Rav Moshe Feinstein (Teshuvot Igrot Moshe, Orach Chaim 2:92) prohibits kashering synthetic materials for Pesach. Indeed, in his discussion of kashering microwaves (Halachos of Pesach pp. 182-183), Rav Shimon Eider quotes Rav Moshe as permitting a microwave to be kashered only if the microwave is not lined with plastic. On the other hand, Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 4:6), Rav Yechiel Yaakov Weinberg (Teshuvot Seridei Eish 1:46), and Rav Ovadia Yosef (Chazon Ovadia vol. 2 [Hagaddah Shel Pesach] p. 78) permit kashering plastic for Pesach. Assuming that one fundamentally can kasher a microwave, we will examine the proper ways to implement the kashering.
Kashering Glass
Many microwaves contain revolving glass plates, which should seemingly require kashering for Pesach. However, poskim strongly debate the status of glass. The Shulchan Aruch (Orach Chaim 451:26) rules that glass need not be kashered, even for Pesach, for it is smooth and thus does not absorb the flavor of non-kosher foods or chametz. On the other hand, the Rama, adopting (at least concerning Pesach) the opposite extreme position among Rishonim, equates glass with earthenware, which cannot be kashered at all. The Rishonim who advocate this position note that glass resembles earthenware in two ways: it originates from sand, and the Rabbis (Shabbat 15b) assigned glass utensils the status of earthenware for tumah (ritual impurity). A third opinion, not codified by the Shulchan Aruch or Rama, is that glass shares the status of metal, so it may be used only after being properly kashered (Or Zarua, Pesachim 256, and Ra’ah, cited by Ritva to Pesachim 30b). Accordingly, it would appear that Sephardic Jews merely need to clean their glass plates, while Ashkenazic Jews undoubtedly must remove or replace them during Pesach.
A Heating Element
Rav Yitzchak Yosef (Yalkut Yosef, Kitzur Shulchan Aruch p. 588) writes that if there is a heating element in the microwave, then it must be kashered in the same manner as an electric oven - by turning the oven to its highest possible temperature for an hour. Kashering by steam suffices only if the absorption occurs exclusively by steam. However, the heating element constitutes a fire and thus requires similar fire to be kashered (libun).
Rav Moshe Feinstein’s Ruling
Rav Shimon Eider (Halachos of Pesach p. 182 note 166) reports that Rav Moshe requires thoroughly cleaning a microwave, waiting twenty-four hours (since its last use), and then boiling a glass of water in the microwave. The steam will then kasher the entire microwave. This report seems to contradict Rav Moshe’s opinion elsewhere (Teshuvot Igrot Moshe, Yoreh Deah 1:60), that he prohibits using steam for kashering. Rav Eider quotes Rav Moshe as explaining that steam works specifically to kasher microwaves, for the steam that rises from the chametz cooking in the microwave is the only means by which its walls absorb chametz. Since we kasher ovens and utensils through the same process that they absorbed chametz, we may kasher a microwave with steam. In fact, the Badei Hashulchan (92:164) cites many Acharonim who permit kashering vessels through steam when that is how they absorb flavor, although he notes (Tziyunim 92:367) that the Chavat Da’at (Bei’urim 92:26) disagrees.
Criticism of Rav Moshe
Rav Yitzchak Yosef (Yalkut Yosef, Otzar Dinim La’ishah V’labat p. 310) and Rav Yisrael Rozen (Techumin 8:35 note 34) question Rav Moshe’s view because we do not find steam as a method of kashering in any traditional codes, which explicitly endorse kashering only via fire or boiling water. Another problem with Rav Moshe’s suggestion is that the steam does not kasher the place underneath the cup of boiling water (since it cannot reach there). The location that had been under that utensil should be kashered separately either by pouring boiling water on it or by kashering the microwave again, with the cup of water in a different place.
Rav Eider himself challenges Rav Moshe’s ruling because the microwave actually absorbs chametz even without steam. Hot foods often spill and splatter, directly imparting their taste into the walls, without a medium such as steam. Thus, Rav Eider advises that the places on which chametz may have fallen should be kashered by pouring boiling water directly onto them. However, Rav Eider’s personal suggestion presents its own difficulties. Pouring boiling water into a microwave is not always a simple task. Moreover, during the course of a year, hot chametz splatters throughout the microwave, so hot water would have to be poured over every internal surface of the microwave in order to thoroughly eliminate any traces of chametz.
Support of Rav Moshe’s Ruling
Three lenient considerations exist to buttress Rav Moshe’s ruling. Firstly, a minority opinion permits kashering with steam. Moreover, the Shulchan Aruch (O.C. 451:25) determines the method of kashering by the way the utensil is generally used (rov tashmisho). For example, if one usually uses a utensil to boil food, but occasionally uses it to cook directly over a fire, boiling water alone suffices to kasher it, without employing fire. Accordingly, if we fundamentally permit kashering through steam, the occasional splattering onto a microwave’s walls would not force us to use boiling water for kashering. However, the Rama does not accept this ruling, so Ashkenazic Jews cannot utilize this leniency. Nevertheless, Ashkenazic poskim might take the Shulchan Aruch’s position into account when other lenient considerations exist. Rav Ovadia Yosef rules that Sephardic Jews may rely on the Shulchan Aruch (see Yalkut Yosef, Kitzur Shulchan Aruch p. 588 [in the 5760 edition]).
Finally, some authorities (cited in Darchei Teshuvah 92:165 and Badei Hashulchan 92:166) claim that steam cannot extract that which is already absorbed in the microwave. It may be inferred that the Shulchan Aruch and Rama (Yoreh Deah 92:8) also subscribe to this view (see Mesorah 4:86). A major concern during Pesach is that steam rising from cooking foods will potentially extract previously absorbed chametz from the microwave’s walls. However, no chametz would be extracted according to this lenient view. Rav Yechezkel Landau (Dagul Meirvavah, Yoreh Deah 92:8), though, adopts the strict opinion that steam can extract taste particles, so an unkashered microwave may not be used on Pesach. Nonetheless, perhaps the lenient view (which we do not generally accept) might be used in conjunction with the two considerations mentioned above, as additional reasons (senifim lehakel) to further support Rav Moshe’s ruling.
Contaminating the Water
Rav Yitzchak Yosef (Yalkut Yosef, Kitzur Shulchan Aruch p. 588 in the 5760 edition) and Professor Lev (Techumin 8:35) advise putting a detergent into the water before boiling it to kasher the microwave. The detergent ensures that any chametz particles absorbed into the microwave walls will not impart a positive flavor should they come in contact with food on Pesach. Thus, even if we were to assume that steam cannot kasher, the microwave’s chametz particles would not render any food non-kosher on Pesach.
Conclusion
Several considerations can buttress Rav Moshe’s lenient ruling to permit kashering a microwave for Pesach. Many rabbis, however, feel that it is inappropriate to rely on these opinions for Pesach, since we generally act strictly concerning this holiday’s dietary laws. Rav Eider even suggests that it is preferable to cover the surfaces of the microwave, as well as the food being cooked in it, during Pesach, even after it has been kashered according to Rav Moshe’s method. One should consult a Rav for guidance in this issue, especially since many of the relevant facts are subject to change in light of technological developments.
Electricity
Fulfilling Mitzvot Through Electronic Hearing Devices
Modern authorities have vigorously debated whether a sound heard through a microphone, hearing aid (which functions much like a microphone), or telephone shares the status of the original sound. This issue impacts the fulfillment of numerous mitzvot, such as listening to the blowing of a shofar or to Torah and Megillah readings, by hearing them through these electronic media.
How Does a Microphone Work?
Before addressing the halachic aspects of electronic devices, Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 1:9) describes the workings of a microphone in great detail. It receives sound waves (the original voice or sound) and converts them into electronic signals. An amplifier/speaker system then reconverts the electronic signals into an amplified replica of the original sound. A similar operation takes place within hearing aids and telephones. Of course, radios and televisions translate radio waves instead of electrical signals.
Can One Fulfill a Mitzvah with Such a Mechanism?
A number of early twentieth-century authorities believed that one can fulfill the mitzvot of shofar and Megillah even through a microphone system (see Encyclopedia Talmudit 18:749-753). However, they lacked access to precise scientific information, so they formulated their opinion based on common-sense perception, without conclusively knowing whether a microphone simply broadcasts a human voice or first transforms it into electronic signals.
A number of prominent authorities who understood microphones more accurately nonetheless considered permitting their use for mitzvot that entail listening. The Chazon Ish (in an oral communication to Rav Shlomo Zalman Auerbach, cited in Minchat Shlomo 1:9) suggests that perhaps “since the voice that is heard via microphone was created [at first] by the [human] speaker and the voice is heard immediately, as it would be heard in regular conversation, it is also defined as ‘actually hearing’ the shofar blower or the [voice of the human] speaker.”
Rav Moshe Feinstein (Teshuvot Igrot Moshe, Orach Chaim 2:108) and Rav Tzvi Pesach Frank (cited in Teshuvot Minchat Yitzchak 2:113 and Teshuvot Tzitz Eliezer 8:11) suggest a similar line of reasoning. Rav Moshe indicates that one never hears a sound directly from its source; rather, the vibration created when a person speaks then passes through the air to the listener’s ear. The vibrating air next to the listener is not the same air that vibrated near the speaker’s vocal chords. Thus, indicates Rav Moshe, perhaps any sound that reaches the listener as a direct result of the original sound shares the same halachic status as the speaker’s own voice. Nevertheless, Rav Moshe discourages the use of a microphone even for rabbinic mitzvot, such as reading the Megillah. Rav Shlomo Zalman, however, attacks any possibility of claiming that one can equate an electronically reproduced sound with a person’s original voice:
Does not the Mishnah (Rosh Hashanah 27b) state that if one blows a shofar into a pit and hears only an echo, then he has not fulfilled the mitzvah of shofar? Why is hearing something through a microphone different from hearing an echo? They are both replications of the original sound!
Rav Shlomo Zalman concludes that the Chazon Ish’s possible leniency is highly questionable, “and I do not comprehend it.”
Argument that a Mitzvah Cannot be Fulfilled
The majority of authorities believe that one does not fulfill any mitzvot by hearing a sound through a microphone. In particular, most mid- and late-twentieth-century authorities, who benefited from a greater understanding than their predecessors of how microphones operate, reject the use of microphones for the performance of mitzvot, with the possible exception of Torah reading. They argue that one hears an electronically reproduced sound over these devices, whereas the Halachah requires one to hear the actual sound of a shofar, or voice of the reader. They note that this reproduction is substantially inferior to hearing an echo since it lacks any trace of the original sound, whereas echoes come from the original sound waves. According to Rav Shlomo Zalman, blowing the shofar over a sound-system is analogous to pressing a button on a computer that produces the sound of a shofar.
Rav Shlomo Zalman therefore writes that he is pained to rule that one cannot fulfill the mitzvot of shofar and Megillah through a hearing aid. Accordingly, hearing-disabled individuals should remove their hearing aids during shofar blowing and Megillah reading. If they cannot hear the shofar or Megillah without their hearing aids, they must not recite the blessings for these mitzvot.
Hearing the shofar and Megillah with a hearing aid still has some value because of the opinion of the Chazon Ish and Rav Moshe that one might fulfill these mitzvot even with a sound system. Similarly, Rav Waldenberg (Teshuvot Tzitz Eliezer 8:11) writes that if a Rav decides to broadcast the Megillah reading throughout a hospital so as to enable patients to hear it, he should not be denigrated, for he is ruling according to the reasoning of the Chazon Ish and Rav Moshe in a case of very great need (as these patients otherwise would not hear the Megillah at all). Rav Moshe (Igrot Moshe, Orach Chaim 4:91) rules that one may recite havdalah over the telephone on behalf of a listener who has no other way to hear it (such as a patient in a distant hospital).
Responding “Amen” to an Electronically Reproduced Berachah
Assuming, like most authorities, that we do not equate an electronically reproduced sound with a natural voice, one who hears a berachah (blessing) over a microphone merely knows that it has been recited at that moment, but has not actually heard it. This situation appears analogous to the Great Synagogue of Alexandria (described in Sukkah 51b), which was so large that many congregants could not hear the leader. In order that they would know when to answer “amen,” someone would wave a banner to indicate that the leader had recited a berachah.
Rashi (Berachot 47a s.v. Yetomah) and Tosafot (Sukkah 52a s.v. Vekeivan and Berachot 47a s.v. Amen) both ask, why could the Alexandrians answer “amen” on the basis of a banner if the Gemara (Berachot 47a) forbids answering “amen” without hearing the actual berachah? The Gemara refers to such a reply as an amen yetomah, “an orphaned amen.” Rashi and Tosafot (in Berachot) explain that the people in Alexandria knew which berachah was being recited, despite the fact that they did not hear it, whereas the problem of an amen yetomah exists only when one lacks any knowledge of what the leader has uttered. Elsewhere (Sukkah 52a), Tosafot cite Rabbeinu Nissim Gaon, who suggests a different approach. He claims that the prohibition against reciting an amen yetomah applies only when answering “amen” to a berachah that one is obligated to recite and he wishes to fulfill his obligation by answering “amen” such as the berachot before blowing the shofar or reading the Megillah. On the other hand, he suggests that the Alexandrians relied on the flag system for responding only to those berachot which they were not obligated to recite.
The Shulchan Aruch (Orach Chaim 124:8) rules that the problem of an amen yetomah applies only to those berachot that one is obligated to recite, while the Rama and Ashkenazic Acharonim rule that the problem exists in other cases, too. Accordingly, the Rama prohibits responding “amen” to any berachah, even when one is not obligated in it, if one does not know precisely which berachah is being recited.
Accordingly, Rav Shlomo Zalman rules that if one hears via a microphone a berachah that he is not obligated to recite, he may answer “amen.” This situation commonly arises at weddings, where members of the audience hear the berachot only over loudspeakers. The bride and groom, who must hear these berachot, do hear the actual sound, as they stand right next to those who recite the blessings.
In another interesting ruling, Rav Shlomo Zalman forbids answering "amen" to a berachah that one hears while listening to a radio (or telephone), even during a live broadcast. He argues that only one who is present in the place of a berachah’s recitation is eligible to answer “amen” (e.g., the situation in Alexandria). However, if he is not present in the place where the blessing is recited, he must not answer "amen" under any circumstances. Rav Yosef Shalom Eliashiv (cited in Avnei Yashfeih 1:9) equates hearing a berachah over a telephone or radio to receiving a telegram that someone will recite a berachah at a certain time. Just as we would never think of reciting amen in the latter situation, so, too, a radio listener is so far removed from the berachah’s recitation that he should not answer amen. Rav Moshe Shternbuch (Teshuvot Vehanhagot 1:155) similarly rules that one should answer “amen” only when close enough to at least hear the natural voices of other people answering amen to the berachah, but not when hearing a berachah from extremely far away.
Not all halachic authorities agree with this assertion. Rav Moshe Feinstein (Igrot Moshe, Orach Chaim 4:91) rules that one should answer amen to a berachah recited on the radio (if it is a live broadcast) or on the telephone, because of a safeik (doubt). As we have already quoted from Rav Moshe, he was not sure whether a reproduced sound shares the status of a person’s voice, so he rules that one should respond “amen” in case the berachah does share a natural voice’s status.
Conclusion
Under normal circumstances, most contemporary authorities (cited earlier) accept Rav Shlomo Zalman Auerbach’s contention that electronically reproduced sounds do not suffice for mitzvot that require hearing a specific natural sound. Therefore, as a general rule, one should not use a microphone for any mitzvot that entail hearing an actual sound (with the possible exception of Torah reading according to some authorities). However, one should consult a competent rabbi if an unusually pressing situation arises, as some authorities believe that performing mitzvot through electronically reproduced sound is preferable to not performing them at all.
Rav Moshe (Teshuvot Igrot Moshe, Orach Chaim 2:108) writes, “In general, we should forbid the introduction of microphones into synagogues to discourage people from being obsessed with new things, a regrettable fixation in modern American society.” Rav Avraham Yitzchak Kook (Or Ha’emunah, Chofesh Hamachshavah Veha’emunah) expresses a similar sentiment, “So many spiritual problems that befall individuals and the world in general... can be attributed to disregarding all that is old for... everything new.”
Of course, we should not reject positive new phenomena. Rav Moshe and Rav Kook are trying to teach us to see the new with a critical eye, while remaining anchored in our glorious past and keeping an eye on the promise of the future.
Why Don't We Use Electric Chanukah Menorahs?
Common practice has developed to refrain from lighting electric menorahs as Chanukah candles. This chapter focuses on the reasons for this practice.
Introduction
People often wonder why electric menorahs cannot be used on Chanukah. After all, lighting an incandescent bulb on Shabbat constitutes a forbidden act of hav’arah (creating a fire) on a biblical level, so Halachah apparently considers a lit incandescent bulb to be a fire. In fact, most authorities agree that one can fulfill the mitzvah of lighting Shabbat or Yom Tov candles with incandescent lights. For example, the Shemirat Shabbat Kehilchatah (43:4c) writes:
There are authorities who hold that the mitzvah [of Shabbat candles] can be satisfactorily performed by turning on electric light bulbs. A person who does this should recite the appropriate berachah (blessing) in the usual way, provided he indeed switches on the lights in honor of Shabbat.
Of course, only lights with a glowing metal filament, such as incandescent bulbs, merit any consideration as Chanukah candles. By contrast, it appears that fluorescent or LED lights would surely not fulfill the mitzvah, because “cold” lights cannot be considered fire. Assuming that Shabbat and Chanukah require the same form of candles, logic would suggest that incandescent bulbs, though, could be used on Chanukah.
The Act of Kindling
Rav Tzvi Pesach Frank (Teshuvot Har Tzvi, Orach Chaim 2:114:2) suggests that the mitzvah of lighting Chanukah candles requires a kindling action (ma’aseh hadlakah), and switching on an electric bulb falls short of fulfilling this requirement. Rav Ovadia Hadayah supports Rav Frank’s approach. He explains that Shabbat candles must provide light in order to make Shabbat enjoyable (oneg Shabbat), so an incandescent bulb, a “fire” that results in the emission of light, fulfills that mitzvah, even though it was not lit by a full-fledged act of kindling. By contrast, Chanukah candles are clearly not meant to provide light for a functional purpose, because one may not benefit from their light (Shulchan Aruch, Orach Chaim 673:1). Accordingly, Rav Hadayah argues that the essence of their mitzvah is the act of kindling itself (see Shulchan Aruch, O.C. 673:2 and 675:1). Hence, electric bulbs, which Rav Hadayah believes emit light without an act of kindling, satisfy the mitzvah of Shabbat candles but not the mitzvah of Chanukah candles. Nevertheless, many authorities reject Rav Frank’s claim and assume that turning on a light bulb constitutes a full-fledged act of kindling.
Torch
Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 1:20:12) questions whether an incandescent bulb may be used for Chanukah since its filament is shaped like an arc, rather than a straight wick. Thus, an electric bulb resembles a torch, whereas Chanukah candles must contain one single wick each (see Shulchan Aruch, Orach Chaim 671:4). The Kaf Hachaim (O.C. 673:19) similarly writes that a light bulb constitutes a torch because the entire bulb lights up.
Resembling the Original Menorah
Rav Shlomo Zalman Auerbach (Me’orei Eish 5:2) and Rav Ovadia Yosef (Yabia Omer, O.C. 3:35, and Yechaveh Da’at 4:38) contend that electric lights, although they meet the halachic definition of fire, differ significantly from the menorah in the Beit Hamikdash (Temple), which Chanukah candles should commemorate. They note that electric lights contain a glowing filament but lack any actual flame, a key element of the lights in the Beit Hamikdash (see Rashi, Bemidbar 8:2). Moreover, conventional candles contain both a wick and a source of fuel. Although wax candles do not correspond precisely to the lights in the Beit Hamikdash (which burned olive oil), they may nevertheless be used on Chanukah because they include the basic structure of a wick and fuel. Incandescent bulbs, by contrast, clearly lack a combustible source of fuel to parallel oil. Rav Ovadia and Rav Moshe Stern (Be’er Moshe, vol. 6 Kuntres Electric 58-59) even question whether the filament parallels a wick.
The Fuel Source
Rav Shlomo Zalman further comments that electric lights lack the required amount of fuel to last at least one half-hour (see Shulchan Aruch, Orach Chaim 672:2). They continue to burn only because they receive more power from an outside source (via power lines), whereas a candle’s wick consumes adjacent oil or wax. One might overcome this obstacle by using a flashlight or a battery-operated menorah. In fact, Rav Chaim David Halevi (Aseih Lecha Rav 6:57) writes that one who cannot light Chanukah candles (such as an airplane passenger or hospital patient) should light a flashlight without reciting a berachah. The Israel Defense Forces’ siddur (p. 693) similarly advises that soldiers who find themselves in situations where they cannot light proper Chanukah candles should turn on their flashlights outside their doors without reciting a berachah.
If the opportunity to light oil or wax candles presents itself later, Rav Halevi and Rav Ovadia Yosef (Yechaveh Da’at 4:38) require doing so with the appropriate berachot (blessings). However, one could argue against reciting the berachah in such a situation, as we always omit berachot when a doubt surrounds their obligation (safeik berachot lehakeil). In our case, the passenger, patient, or soldier who lit an electric menorah might have already fulfilled the mitzvah of Chanukah candles, in which case he would be reciting the berachah in vain when he later lights oil or wax candles. Indeed, some poskim from the early days of electric lights, such as Rav Chaim Ozer Grodzinsky (Achiezer 4:6), indicate that electric menorahs at least minimally fulfill the mitzvah of Chanukah candles. Similarly, Rav Waldenberg and Rav Hadayah question the validity of electric menorahs but do not definitively assert that they are absolutely invalid. Although Rav Waldenberg and Rav Hadayah do not permit electric menorahs in practice, and many other poskim dismiss the use of electric menorahs out of hand, perhaps the fact that the poskim were not unanimous means that one should avoid the risk of reciting a berachah in vain (berachah levatalah) by lighting the proper candles without a berachah. One who encounters a situation where he lights proper candles after having lit an electric bulb when he had no candles should thus consult his rabbi regarding whether to recite a berachah.
Publicizing the Miracle
The Rama (O.C. 571:7) writes that one should not light Chanukah candles in the same location where one lights ordinary candles during the year, because candles in their regular location do not stand out and therefore fail to publicize the miracle of Chanukah. Based on the Rama’s position, Rav Yitzchak Shmelkes (Teshuvot Beit Yitzchak, Yoreh Deah 1:120) objects to using electric lights for Chanukah candles. Rav Shmelkes argues that electric lights fail to publicize the miracle because people use them all the time. However, Rav Ovadia Yosef (Yechaveh Da’at 4:38) and Rav Gavriel Zinner (Nitei Gavriel, Hilchot Chanukah 18:23 note 35 in the revised edition) comment that Rav Shmelkes’s objection should not apply to electric menorahs that were clearly built specifically for Chanukah.
Conclusion
For a myriad of reasons, the overwhelming majority of halachic authorities object to lighting electric menorahs as Chanukah candles. Nevertheless, many poskim advise that one who lacks any access whatsoever to proper candles, such as an airplane passenger, a hospital patient, or an active soldier, should light an incandescent menorah - or even a flashlight - without reciting a berachah. One should consult a competent Rav regarding such situations in order to determine in each case whether it is preferable for the passenger, patient, or soldier to light a flashlight in his current location or to have someone else light proper candles on his behalf in his regular home, or both.
Building and Maintaining Mikva’ot
Building and Maintaining Mikva'ot
Part I; Community's Responsibility to Build a Mikvah
We all use a mikvah (ritual bath) at some point in our lives, yet many of us do not know how mikva’ot are constructed and maintained. Over the next few chapters, we will outline the basic principles of hilchot mikva’ot. We begin with a discussion of the parameters of a community’s obligation to create mikva’ot.
The Obligation to Build a Mikvah
The Rama (Choshen Mishpat 163:3) codifies a ruling of the Mahari Mintz (Teshuvot 7) that the entire community must pay for the building of a mikvah. Even those individuals who do not normally use a mikvah, such as elderly couples, must share in the cost of its construction and maintenance. According to Rav Moshe Feinstein (Teshuvot Igrot Moshe, C.M. 1:42), this communal obligation applies even when an amply large mikvah already exists in a nearby area, if the community is not within walking distance of the existing mikvah. In fact, if the nearest mikvah is two miles away, Rav Moshe (C.M. 1:40) requires the entire community to help build a closer mikvah, provided that most of the community supports the new mikvah’s construction.
An anecdote from the Chazon Ish (Pe’er Hador 2:157) vividly illustrates the seriousness of this obligation. The only option available to a certain community in Tel Aviv to construct a mikvah was to transform an existing synagogue into a mikvah and subsequently add a second story where the synagogue’s sanctuary would be rebuilt. However, the Shulchan Aruch (Orach Chaim 153:9) explicitly forbids transforming a synagogue into a mikvah, so the local rabbi consulted the Chazon Ish regarding how to act. The Chazon Ish pondered the question for a few moments and then dramatically replied, “Better that the learned Jew violate a minor prohibition so that the ignorant Jew will not violate a major transgression.” The Chazon Ish stated his readiness to accept eternal punishment (for condoning the transformation of a synagogue into a mikvah) in order to spare marginally observant Jews from violating the terrible sin of not using the mikvah when necessary.
The Priority to Build a Mikvah Before Other Mitzvot
The Chafetz Chaim (Kuntress Ma’amarim v’Kol Korei p.26) forbids residing in a city that has no mikvah, adding that building a mikvah “enjoys priority over building a synagogue, purchasing a Torah scroll, or any other mitzvah.” Rav Moshe Feinstein (Teshuvot Igrot Moshe, C.M. 1:42) buttresses this point by citing the law that one may sell a Torah scroll in order to marry (Megillah 27a). Since the Mishnah (Megillah 25b-26a) teaches that the holiness of a Torah exceeds the holiness of a synagogue, it logically follows that one may also sell a synagogue to facilitate a marriage. Moreover, the Gemara bases the priority of marriage on the need to procreate, as the prophet Yeshayahu states, “[God] did not create the world to be wasted; He formed it to be inhabited” (45:18). Accordingly, Rav Moshe explains that the high priority accorded to marriage applies not just to the wedding itself, but also to anything necessary for the continuity of the marriage. Since mikva’ot play a critical role in the appropriate functioning of a marriage, reasons Rav Moshe, building a mikvah enjoys priority over building a synagogue.
Indeed, the incoming Rav of a community whose members were mostly non-observant asked Rav Yonatan Shteif (Teshuvot Mahari Shteif 187) whether his top priority should be to promote Shabbat observance or mikvah construction and use. Rav Shteif initially replied mikvah should receive the highest priority because one must sacrifice one’s life rather than cohabit with a nidah, whereas one may desecrate Shabbat in life-threatening situations.
Ensuring Modesty and Comfort
Rav Moshe (Teshuvot Igrot Moshe, Yoreh Deah 2:91) writes that the community must build a mikvah in a place that guarantees the women’s privacy. Rav Yirmiyah Katz, based on his extensive experience in the area of mikva’ot, has told me that it is critical that communities not use the same mikvah for men and women on a regular basis. The knowledge that men regularly immerse in the same mikvah causes some women discomfort, as they feel that this arrangement compromised their privacy (even though the men and women have different hours there, of course). Rav Yitzchak Yaakov Weisz (Teshuvot Minchat Yitzchak 3:64) also mentions the practice of building separate mikva’ot in order to alleviate this concern.
Rav Moshe (Yoreh Deah 2:90), the Chazon Ish (Y.D. 123:5), and the Minchat Yitzchak (9:94) also encourage communities to maintain high aesthetic and hygienic standards at the mikvah, lest any woman hesitate to use it.
Temporary Closing of a Mikvah
The need often arises to expand or otherwise renovate a mikvah. The question then arises whether we are permitted to temporarily close a mikvah in order to expedite the completion of the necessary work. Rav Meir Arik (Teshuvot Imrei Yosher 2:201) and Rav Moshe Feinstein (Teshuvot Igrot Moshe, Yoreh Deah 2:91) both forbid temporarily closing a mikvah. They cite a passage from the Gemara (Megillah 26b) that prohibits temporarily closing a synagogue to facilitate its repair, lest the people will procrastinate and fail to expend the money and effort to rebuild the synagogue. This concern should similarly apply to a mikvah, for we have seen that building a mikvah is even more important than building a synagogue. Indeed, Rav Moshe forbids closing the mikvah “even for one day.”
Building a Mikvah to the Highest Halachic Standards
Already since the time of the Rishonim, the practice has been to act exceptionally strictly regarding a mikvah’s construction and maintenance. We seek to accommodate even opinions that represent a small minority of halachic authorities and are not even cited in the Shulchan Aruch. Rav Yirmiyah Katz (Mikveh Mayim, vol. 3 p. 13-17) assembles a long list of authorities who record this practice. Indeed, although Rav Moshe Feinstein (Teshuvot Igrot Moshe, Orach Chaim 1:136) regards the size of an amah (cubit) to be 21.25 inches in the context of almost all halachot, including the laws of Shabbat, regarding mikva’ot Rav Moshe urges treating an amah as twenty-four inches. Moreover, in a later responsum (Y.D. 2:89), Rav Moshe is even stricter and advises treating an amah as 24.5 inches in the context of hilchot mikva’ot.
A popular story about the Chazon Ish claims he once remarked that he had never seen an invalid mikvah, due to the many stringencies that we practice when constructing mikva’ot. Moreover, my cousin Rav Yosef Singer (who for many decades supervised the Lower East Side of Manhattan mikvah under the guidance of Rav Moshe Feinstein) relates that Rav Moshe utilized every possible opportunity to enhance and upgrade the mikvah. For example, although the mikvah originally used metal pipes to transport water from the roof to the mikvah, Rav Moshe later installed plastic pipes.
The poskim offer a number of reasons for this stringency. The Divrei Chaim (Y.D. 2:99) writes, “One should strive to construct a mikvah that will be acceptable to all opinions because mikvah embodies the holiness of the Jewish People.” Rav Yaakov Breisch (Teshuvot Chelkat Yaakov 3:57) notes that if a community’s rabbis decide to rule leniently when certifying the kashrut of a particular food product or establishment, then those rare individuals who observe additional chumrot (stringencies) may simply decline to purchase their food there. However, we must create a mikvah with the highest possible standards, accommodating the needs of even the most pious and stringent individuals, for they cannot refrain from using the mikvah.
Rav Moshe Heinemann elaborated on this point during a lecture at a conference of the Council of Young Israel Rabbis. He noted that in the classical Jewish communities in Europe, North Africa, and the Middle East, the local Rav constructed the mikvah in accordance with that area’s traditions and practices. However, now that Jews from a wide range of places and traditions have settled in America, we must construct mikva’ot in a manner that satisfies all of these traditions. For example, when Rav Heinemann helped plan the construction of a mikvah in Lakewood, NJ, he consulted Rav Yoel Teitelbaum, the Satmar Rav, to ensure that the mikvah would meet his standards. The Satmar Rav (quoted in the Teshuvot Minchat Yitzchak 9:94 and the aforementioned Teshuvot Chelkat Yaakov) himself favored constructing mikva’ot that satisfy all views, reportedly stating that the mikvah is supposed to purify us, rather than us needing to “purify” it by defending its validity.
On the other hand, Rav Moshe (Teshuvot Igrot Moshe, Y.D. 1:111) cautions that those who believe they can create a mikvah that will satisfy literally all opinions are incorrect. In practice, rabbis must pay attention to accepted norms among observant communities and exercise their judgment accordingly regarding which minority opinions to accommodate. For example, Rav Moshe notes that we routinely immerse in warm mikva’ot even though some Rishonim forbid this practice. We also do not follow the small group of Rishonim who require a zavah to immerse in a natural spring rather than a mikvah. Elsewhere (Teshuvot Igrot Moshe, Y.D. 2:89), Rav Moshe writes, “In small towns, one should certainly not be especially strict to impose an enormous financial burden” to accommodate minority opinions. Indeed, Rav Yirmiyah Katz stated in 2001 at a conference of Young Israel Rabbis that it is possible to create a basic mikvah (that does not accommodate every stringency) in the range of $20,000 for a small and outlying Jewish community. Even in large communities, excessive stringency can inhibit the construction of a much-needed mikvah. Indeed, the Divrei Malkiel (3:67), who elsewhere encourages building mikva’ot that conform to all opinions (4:85), endorses the decision of a rabbi in Paris to build a mikvah that met the rabbi’s own standards, with which the Divrei Malkiel agreed, even though it disregarded a stringent minority opinion. He explains:
You ruled properly to permit the mikvah in this manner; yasher ko’ach for doing a great service to such a large city. We must be exceedingly careful to create mikva’ot that are readily accessible to all, lest they will - God forbid - altogether avoid immersing. In such situations, an astute scholar will not apply chumrot (stringencies) that lack any foundation according to the pure letter of the law.
Supervision by Major Authorities
As we have seen, building and maintaining mikva’ot require a very advanced level of Torah scholarship, as well as the judgment to balance appropriately the desire to accommodate all views with practical considerations (such as financial limitations). These issues arise not only during the mikvah’s construction, but also during its ongoing maintenance. Accordingly, every mikvah needs a qualified Rav to supervise its construction and maintenance. In a letter from 1990, Rav Moshe Stern (author of Teshuvot Be’er Moshe) and five other prominent rabbis outlined several criteria for proper mikvah supervision. They require the supervising rabbi to have achieved a level of scholarship where people trust him to rule on any halachic topic (and not just the laws of mikva’ot). A rabbi of this stature must supervise the construction of the mikvah and continue to supervise its maintenance by inspecting at least once a month (preferably bi-weekly). In addition, the rabbi must appoint someone trustworthy to supervise the mikvah from day to day, yet this appointee may never rule himself on halachic questions that arise regarding the mikvah. Moreover, the supervising rabbi’s identity must be publicized to the Jewish community.
Mystical Considerations
The Baal Shem Tov (cited in Mikveh Mayim, Introduction to vol. 3) reportedly suggests that Chabbakuk 3:12, “Through za’am (fury) You [God] march through the land; with anger You crush nations,” alludes to the power of mikva’ot. The Baal Shem Tov interprets “za’am” as an acronym for zevichah (ritual slaughtering), ‘eiruvin, and mikva’ot. Thus, when God sees that we scrupulously observe these three areas, he eradicates our enemies.
In fact, Rav Katz records that in 1943, when Hitler (may his evil name be blotted out) positioned his troops in Egypt, poised to conquer Eretz Yisrael, a group of leading Chasidic Rebbes assembled in Jerusalem and pledged to do their utmost to build and enhance mikva’ot throughout Eretz Yisrael, hoping to thus prevent the Nazis from entering. Shortly after their meeting, Hitler suffered military losses that forced him to abort his plans for invading Eretz Yisrael. That meeting also sowed the seeds of the establishment of the Va’ad L’Taharat HaMishpachah, which supervises the functioning of the more than 1500 mikva’ot in Israel today.
Conclusion
Rav Katz told the 2001 conference of the Council of Young Israel Rabbis that, in contrast to Israel, only about three hundred mikva’ot function in the United States. He urged rabbis and community leaders to do their utmost to change the facts on the ground and establish a wider network of mikva’ot in this country to facilitate easy access to mikva’ot, so women will not need to endure long drives or long lines in order to immerse.
Part II; Distinguishing Between Mikvah and Ma'ayan
After discussing a community’s responsibility to build a mikvah in the last chapter, we now begin the basic rules for creating a mikvah. Maintaining a mikvah also requires a high level of general competence and vigilance, as well as certain specific skills. We thus emphasize at the outset the words of Rav Shlomo Dichovsky (Techumin 16:112):
The building of mikva’ot today requires a combination of thorough halachic knowledge and specific engineering knowledge. Hence, very few people are regarded as competent in this critical field.
The Biblical Concepts
The Torah (Vayikra 11:36) states, “A ma’ayan (natural spring) or bor (cistern), a gathering of water, shall be pure.” The Torah mentions two bodies of water, a ma’ayan and a bor, neither of which can become tamei (ritually impure). The Sifra, commenting on this verse, understands that they cannot become tamei because they are themselves sources of purity. Hence, besides their own inability to become tamei, immersion in them purifies people and utensils that were tamei.
The Sifra further interprets the phrase “a gathering of water” (mikveh mayim) as alluding to a more general category derived from the cistern’s traits. A cistern unites waters that would have no connection to one another had they not flowed into it. Thus, their presence within the same “gathering of water” defines the cistern’s contents as one unit. A ma’ayan’s waters, on the other hand, are one body by virtue of the link to their source, so they can purify others even without gathering in one spot. Thus, the term mikvah (“gathering”) is routinely used in place of the term “bor, mikveh mayim” when describing cisterns and other pools of water that lack a natural source in the ground.
Differences Between a Mikvah and a Ma’ayan
The Mishnah (Mikva’ot 1:7-8) indicates two major differences between a mikvah and a ma’ayan. A ma’ayan is effective even though it is running water (zochalin), whereas a mikvah’s waters must be stationary (ashboren). Also, a mikvah must contain a minimum of forty sa’ah of water, while no such minimum exists for a ma’ayan.
Several other differences between a mikvah and a ma’ayan exist according to many, but not all, authorities. For example, discoloration of the water (shinui mar’eh) invalidates a mikvah, but the Shulchan Aruch (Yoreh Deah 201:28) rules that a ma’ayan is effective regardless of its water’s color. Some authorities also believe that concern for natan sa’ah v’natal sa’ah, which relates to replacing the mikvah’s water in a halachically acceptable manner, does not apply to a ma’ayan. Moreover, most Rishonim believe that the problem of mayim she’uvim (water poured from a vessel), which we explain in the next chapter, does not apply to a ma’ayan.
Many Acharonim strongly encourage the use of a ma’ayan because these differences make it far easier to ensure that the ma’ayan remains acceptable for immersion. Indeed, it was common in the time of the Rishonim to use ma’ayanot for tevilah because they avoid many halachic pitfalls (see Terumat Hadeshen 258). The Beit Shlomo (Y.D. 2:59), living in the late nineteenth century, records that “everyone knows” that most mikva’ot in his time were actually ma’ayanot. Even nowadays, there are some communities that adopt a stringency and supply the immersion pool with water from a well instead of tap water. This water might have the status of a ma’ayan. However, Teshuvot Minchat Yitzchak (7:76) states that one cannot simply regard this water as a ma’ayan. Rather, this water must also be made acceptable by hashakah and hamshacha. Rav Katz told me that some Rabbanim require zeri’ah as well (as indicated in Teshuvot Mahari Shteif 142) to make the water acceptable. First, we are concerned that separating spring water from its source removes its status as a ma’ayan, despite the water’s origins (see Shulchan Aruch, Y.D. 201:10).4 In addition, the Mishkenot Ya’akov (Y.D. 45, cited as 43 in Pitchei Teshuvah 201:28) further limits the application of the rules of ma’ayanot. He argues that most natural springs do not qualify as halachic ma’ayanot because the springs are located too close to rivers to be considered independent of them. Rav Moshe Feinstein (Teshuvot Igrot Moshe, Y.D. 3:64) accepts the Mishkenot Ya’akov’s claims. Finally, Ma’ayanot, Rav Katz reports, can easily be disqualified, so at most they should be used to supplement and further enhance the rainwater mikva’ot but never substitute for rainwater mikva’ot in the contemporary setting.
Water Quantity in a Ma’ayan
We have already mentioned that a ma’ayan does not need any minimum amount of water. However, Tosafot (Nazir 38a s.v. Bar) limit this leniency to the immersion of utensils (tevilat keilim). According to Tosafot, people must immerse in a minimum of forty sa’ah regardless of whether they are using a mikvah or a ma’ayan. The Ra’avad (Baalei Hanefesh, beginning of Sha’ar Hamayim) disagrees, requiring only that a ma’ayan contain enough water to cover the person immersing. The Rambam (Hilchot Mikva’ot 9:6) never mentions a requirement of forty sa’ah for people to use a ma’ayan, implying that he agrees with the Ra’avad. The Shulchan Aruch (Yoreh Deah 201:1) and almost all of its commentaries rule in accordance with Tosafot, but the Vilna Gaon (Bei’ur Hagra, Y.D. 201:6) defends the Rambam and Ra’avad’s view.
Contemporary authorities debate how to measure forty sa’ah in liters. The opinions range from 648 liters to 964.3 liters. The Cheishev Ha’eifod (150:2) records that common practice is to build mikva’ot with at least one thousand liters, in order to avoid all doubts.
Zochalin vs. Ashboren
We have already noted that mikvah water must be stationary. The Rama (Y.D. 201:2) rules that zochalin (water that flows outside a mikvah’s boundaries) invalidates the mikvah on a Biblical level. Almost all Rishonim believe that the water need not flow in a torrent in order to be considered zochalin. Rather, even water flowing through a minor crack in the mikvah’s wall is defined as zochalin.
The Rashba (Torat Habayit, Sha’ar Hamayim, Sha’ar 2) believes, though, that in order to disqualify the mikvah, the water flow must at least be noticeable (zechilah hanikeret). The Shulchan Aruch (Y.D. 201:51) rules in accordance with this view. The Acharonim subsequently debate how to define a zechilah hanikeret, with quite a wide range of opinions on this matter (see Encyclopedia Talmudit 12:25-26 and Mikveh Mayim, vol. 2 pp. 23-31).
However, the Vilna Gaon (Bei’ur Hagra 201:96) appears to rule that even an indiscernible water flow (zechilah she’eina nikeret) disqualifies a mikvah. Rav Chaim Soloveitchik (cited in Teshuvot Vehanhagot 1:513) vigorously supports this view. In practice, halachic authorities urge mikvah administrators to avoid even the slightest zechilah in a mikvah. Indeed, my cousin Rav Yosef Singer reports, regarding the mikvah on the Lower East Side of Manhattan, that Rav Moshe Feinstein insisted that there be not even a zechilah she’einah nikeret. Practically speaking, Rav Yirmiyah Katz (Mikveh Mayim, vol. 2 p. 31) notes that even the slightest zechilah eventually develops into a zechilah hanikeret and thus should not be ignored.
Filters
The use of filters in mikva’ot has aroused concern for zechilah. Rav Katz (in a speech to the Council of Young Israel Rabbis) noted that mikva’ot in Israel do not use filters due to this concern. In the United States, though, mikva’ot commonly use filters, so special care must be taken to avoid problems of zechilah. Rav Yirmiyah Katz told me (in 2003) that a new filter was recently developed in Montreal in order to avoid any problems of zechilah.
Concrete
The necessary care to prevent zechilot begins with the mikvah’s construction. For example, in previous generations mikvah walls were lined with clay or stone (Mikveh Mayim, vol. 1, p. 139). However, concrete was introduced in the early twentieth century because it reduces concern for zechilah. Rav Katz (Mikveh Mayim, vol. 3 p. 40) advises that mikvah builders should pour the concrete for the floor and walls simultaneously in order to strengthen the foundation and further reduce concern for zechilah. Indeed, avoiding zechilot comprises a key element of the practical engineering expertise and experience required for building mikva’ot today. Indeed, Rav Katz told me that it is vital that the supervising rabbi oversee the pouring of the cement. He added that it is insufficient for the supervising rabbi to make blueprints and rely on a contractor to follow directions on how to pour the cement. Rav Katz told me of the severe problems experienced by those communities that relied solely on the rabbi’s blueprint.
We should note that there was some debate regarding the halachic propriety of using concrete in the creation of a mikvah. However, it quickly became the universal practice to use concrete.
Checking for Leaks
Rav Moshe Feinstein (Teshuvot Igrot Moshe, Y.D. 2:89) requires periodically inspecting a mikvah for zechilot. Rav Katz (Mikveh Mayim, vol. 3 p. 133) notes that poskim do not specify how often to check a mikvah for zechilot. He surmises that it depends on the age and condition of the structure, as an older structure probably needs more frequent inspections. Rav Katz notes that the process of checking for zechilot involves marking the water level of the mikvah, closing it for a day, and then inspecting the water level to see if it has fallen. Rav Yosef Singer told me that Rav Moshe Feinstein used to check the Lower East Side mikvah for zechilot annually on Tisha B’Av, when marital relations are prohibited, so as not to close the mikvah when people needed to immerse in it. Checking mikva’ot on Tisha B’Av is a widespread practice for this reason.
In previous generations, mikva’ot were built with drains on the bottom. Despite the serious risks of the drains creating a zechilah or their plugs being subject to the laws of tum’ah (ritual impurity), they used to be the only practical way to remove water from the mikvah. However, with the advent of electric pumping machines in the twentieth century, it became accepted to construct mikva’ot without drains (see Teshuvot Divrei Yoel, Y.D. 76, and Teshuvot Mahari Shteif 71).
Rivers, Oceans, and Lakes
Until now, we have discussed zochalin within the context of leaks. Of course, the problem of zochalin clearly invalidates a flowing stream of rainwater, as the entire stream is one large zechilah. By contrast, we have already mentioned that one may immerse in a natural spring even if the water is flowing. From the time of the Talmud, authorities have debated whether to treat rivers as streams of rainwater or as springs. In reality, many rivers consist of a combination of rainwater and underground springs, so the debate revolves around how to judge such a mixture.
Rav (Shabbat 65b), determines each river’s status based on which type of water comprises a majority of the river at any given time. If it consists mostly of rainwater, then we treat the river as a mikvah and invalidate it as zochalin. If, however, underground springs provide most of its water, then it attains the status of a ma’ayan. One can measure the rain’s impact on a particular river by observing its size before the rainy season and attributing any growth to rainfall. Accordingly, the same river might be a ma’ayan during a drought and lose this status after a downpour.
The Gemara cites one statement of Shmuel that appears to agree with Rav. On the other hand, Shmuel elsewhere adopts a contradictory view. This Gemara presents a somewhat enigmatic statement, “Nahara mikipei mivrach” (“A river grows from its rocks [in the riverbed]”). Tosafot (s.v. D’amar Shmuel) interpret this quotation as meaning that a river’s primary source of water is its underground springs. Tosafot explain, based on the Gemara (Ta’anit 25b), that for every unit of rain that falls, twice that amount of water percolates into the river from underground aquifers. Consequently, even if we observe that the river swells tremendously after rain has fallen, we may assume that the river still contains more fresh water than rainwater, because double the amount of rainfall emerges from the aquifers. This latter interpretation of Shmuel’s view thus shows him as considering all rivers to be ma’ayanot. However, if a river or stream dries up completely when there is a drought, then the Rama (Y.D. 201:2) notes that it is clearly nothing more than a flow of rainwater (chardalit shel geshamim), which no authority would consider a ma’ayan (see Mikva’ot 5:6).
The Rishonim debate which opinion to follow. Most Rishonim accept Rav and the stricter version of Shmuel, which judge each river by the majority of its waters. Tosafot (ibid.), however, cite Rabbeinu Tam as ruling in accordance with the lenient version of Shmuel. Tosafot conclude, “We rely upon this view to immerse in rivers, even if they are quite swollen [from rain].” Some Rishonim adopt a compromise view. They suggest that if a river swells after significant rainfall, then even Rav would permit immersing specifically in the part of the river that existed even before the rain, as this original section clearly came from natural springs and not from the rain.
The Shulchan Aruch (Y.D. 201:2) prohibits immersing in rivers under any circumstances. The Rama, though, records that communities located far from mikva’ot would immerse in rivers. The Rama concludes that it is preferable to follow the Shulchan Aruch’s opinion, but one should not admonish those who do immerse in rivers. Writing in the late nineteenth century, the Aruch Hashulchan (Y.D. 201:42) notes approvingly that women who lived at a great distance from a mikvah would immerse in rivers.
Today, with the advent of modern means of travel, poskim rarely, if ever, sanction immersion in rivers. Moreover, Rav Yirmiyah Katz (in 2001) told the National Council of Young Israel rabbis that he has made small mikva’ot for less than $20,000 in private individuals’ backyards and garages in places which are far from centers of Orthodox Jewish life. A Rav perhaps might sanction an Ashkenazic Jew relying on a river for tevilat keilim in case of great need, such as for baalei teshuvah visiting parents who live extremely far from a mikvah. Such a decision would depend on the specific circumstances and available alternatives in each case.
Finally, the Tannaim debate whether oceans are acceptable for immersion despite the fact that they are zochalin (Mikva’ot 5:4). Rabbi Yosei classifies oceans as ma’ayanot regarding exemption from concern for zochalin. The Shulchan Aruch (Y.D. 201:5) codifies his view. The Aruch Hashulchan (Y.D. 201:42) adds that lakes with still water are acceptable for immersion even if they dry up completely during a drought. Their water does not flow beyond their boundaries, so it does not present a problem of zochalin. In practice, though, a skilled Rav must thoroughly investigate a lake before it can be used for immersion, in order to verify that its water indeed does not flow beyond its boundaries.
Conclusion
Natural springs and oceans avoid many halachic pitfalls, but reality generally prevents us from immersing in them. Thus, we routinely use mikva’ot, despite the risk that leaks will invalidate them. Modern technology has enabled us to minimize concern for leakage by constructing mikva’ot from concrete and by pumping water out of them from the top, rather than draining them from the bottom. Nevertheless, we must check mikva’ot from time to time (usually on Tisha B’Av) to ensure that leaks do not develop.
Part III; Mayim She'uvim
We continue our discussion of the construction of mikva’ot by exploring how one directs rainwater into the mikvah in a halachically acceptable manner.
Defining Mayim She’uvim
In the last chapter, we distinguished between the two bodies of water that purify, a ma’ayan (natural spring) and a mikvah (collection of rainwater). The Sifra (commenting on Vayikra 11:36) draws a parallel between them, teaching that just as God creates ma’ayanot naturally, without human intervention, so, too, must the water in a mikvah reach it without passing through receptacles. If, for example, one drew water from a well with a bucket and then poured the water into a pit, the water would be considered mayim she’uvim (drawn water) and would hence be disqualified for use in a mikvah. In the modern context, water from the tap constitutes mayim she’uvim because it passes through receptacles in purification plants and water meters.
Since rainwater must reach the mikvah without ever having been in a receptacle, the pipes that bring the water to the mikvah must not include any cavity (beit kibul), which would halachically define the pipe as a receptacle. Thus, the pipes should be smooth, without indentations. Ideally, elbow pipes should be avoided, as the Ra’avad (gloss to Rambam, Hilchot Mikva’ot 8:7) indicates that they constitute a receptacle.
Level of the Prohibition of She’uvim
The Rishonim debate whether mayim she’uvim are disqualified on a Biblical or rabbinic level. Rabbeinu Tam and the Rashbam (cited in Tosafot, Bava Batra 66a s.v. Michlal) believe that a majority of mayim she’uvim invalidates a mikvah on a Torah level, while the Rabbis enacted that a smaller amount can also disqualify it, as we shall soon see. They note that the aforementioned Sifra derived the concept of mayim she’uvim from a verse in the Torah, so some circumstances must exist where mayim she’uvim invalidate a mikvah on a Biblical level.
On the other hand, the Rambam (Hilchot Mikva’ot 4:1-2) and Ri (cited in Tosafot, ibid.) claim that the entire problem of mayim she’uvim exists only on a rabbinic level, while the Torah itself even permits a mikvah comprised entirely of mayim she’uvim. Although the Sifra derives the concept of she’uvim from a verse in the Torah (Vayikra 11:36), the Rambam believes that the Sifra merely intends that the Rabbis saw an allusion (asmachta) in the Torah to their enactment. The Aruch Hashulchan (Y.D. 201:11-17) reviews two additional opinions that appear in the Rishonim.
The Rama (Y.D. 201:3) disqualifies a mikvah on a Torah level if it contains mostly mayim she’uvim, in accordance with Rabbeinu Tam. Although the Shulchan Aruch does not explicitly address this dispute, the Shach (Y.D. 201:17,117) notes that he repeatedly implies that even a mikvah comprised entirely of mayim she’uvim is invalid only on a rabbinic level.
The Rabbinic Level: Three Logim
Regardless of how one interprets the laws of mayim she’uvim on a Biblical level, everyone agrees that three logim (a Talmudic measure) of mayim she’uvim suffice to disqualify a mikvah on a rabbinic level (Eiduyot 1:3, Mikva’ot 2:4). Rav Heinemann stated that we treat three logim as the equivalent of less than one quart. Accordingly, this relatively small amount of water can invalidate the contents of an entire mikvah. However, once the mikvah contains forty sa’ah of acceptable water (over one thousand liters, as we have mentioned in previous chapters), then adding mayim she’uvim to the mikvah does not disqualify it (Mikva’ot 2:3 and 6:8).
Although space does not allow us to discuss them in depth, we should mention that a number of other ways exist to disqualify rainwater for use in a mikvah. These include discoloration (shinui mar’eh), the water entering the mikvah via an item that can become ritually impure (havayato al y’dei tum’ah), and human involvement in the water’s transportation to the mikvah even without using a receptacle (tefisat y’dei adam). These issues all appear in the Shulchan Aruch and its commentaries in Yoreh Deah 201, and Rav Yirmiyah Katz thoroughly discusses their practical ramifications in his three-volume work, Mikveh Mayim.
Making Mayim She’uvim Acceptable – Hamshachah
Pits of rainwater located in caves often served as mikva’ot in Talmudic times. After a short while, however, these mikva’ot became dirty and difficult to use. Consequently, people would bathe to clean themselves after immersing in the mikvah, a practice that the Rabbis disliked. Today, in order to prevent such dingy conditions, we fill our mikva’ot with tap water, and regularly drain and refill them. However, as we have already explained, tap water has the status of mayim she’uvim, so we will now examine how contemporary mikva’ot solve this problem.
If three logim of mayim she’uvim reach a mikvah before it has forty sa’ah of rainwater, the mikvah remains disqualified no matter how much rainwater is added. However, the Halachah provides several ways to remedy the water’s status as mayim she’uvim. One such way, the process of hamshachah, consists of pouring the mayim she’uvim on the ground outside the mikvah, leaving them to naturally flow from there into the mikvah. The Gemara (Temurah 12a) records that if the mikvah contains over twenty sa’ah of acceptable rainwater, then Rabbi Eliezer ben Yaakov permits obtaining the rest of the forty sa’ah by running mayim she’uvim along the ground into the mikvah. The Rambam (Hilchot Mikva’ot 4:8) and Shulchan Aruch (Y.D. 201:44) codify his opinion.
The Radbaz (Teshuvot 1:85) prohibits deliberately using hamshachah to bring water into a new mikvah. He asserts that we permit hamshachah only if b’dieved (post facto) water unintentionally reached a mikvah in this manner. Rav Moshe Feinstein (Teshuvot Igrot Moshe, Y.D. 3:64:3) and Rav Yonatan Shteif (Teshuvot 142) rule accordingly.
The Rishonim dispute several details related to the process of hamshachah. For example, the Rambam (Hilchot Mikva’ot 4:9) cites and rejects the view of some anonymous sages who believe that an entire mikvah may be created through the process of hamshachah. On the other hand, the Chazon Ish (Y.D. 130:14) indicates that he believes the Ra’avad disqualifies a mikvah on a Torah level if all of its water entered via hamshachah. Tosafot (Bava Batra 66a s.v. Michlal) suggest a middle position (between the Ra’avad’s view and the view of the anonymous sages cited and rejected by the Rambam), that a mikvah whose water consists entirely of mayim she’uvim revitalized through hamshachah is disqualified only on a rabbinic level. Many (but not all) later authorities adopt this approach.
Authorities also debate whether water must move across a minimum area of land in order to qualify as hamshachah. The Beit Yosef (Y.D. 201 s.v. Shiur Hamshachah) cites a debate among the Rishonim regarding whether the water must roll along the ground for three tefachim (handbreadths, approximately nine to twelve inches), or perhaps even a tiny bit of land suffices. The Shulchan Aruch (Y.D. 210:45) rules in accordance with the strict opinion that three tefachim are required. Interestingly, the Chazon Ish (Y.D. 126:6) adds that the three tefachim for hamshachah may curve, rather than move in a straight path.
A third debate surrounds what type of ground may be used for hamshachah. The Shulchan Aruch (Y.D. 201:46) rules in accordance with the majority of Rishonim, who permit any surface for hamshachah. The Rama (ibid.), though, comments that it is proper to follow the strict opinion of the Mordechai that the surface used for hamshachah must be capable of absorbing water. Early twentieth-century-authorities debate the permissibility of cement, which includes dirt as a major component. Rav Meir Arik (Teshuvot Imrei Yosher 2:67 and 85) claims that one should not do hamshachah on cement because it does not absorb, while the Chazon Ish (Y.D. 123:1) and Maharshag (Teshuvot 1:65 and 2:6) rule that cement is regarded as absorbent for the purpose of hamshachah. Rav Shlomo Dichovsky (Techumin 16:117) remarks that we rely on the latter view in practice. Rav Yirmiyah Katz (Mikveh Mayim, vol. 3, p. 228) adds that some adopt a compromise view by using cement that contains an unusually high concentration of dirt.
Rav Dichovsky (Techumin 16:117) further notes that most mikva’ot employ the process of hamshachah as an added precaution to insure the mikvah’s validity. Thus, in most contemporary mikva’ot, any water that enters the mikvah moves along the ground on its way. Many poskim recommend this setup because it immediately reduces any concern for mayim she’uvim from a Torah level to merely a rabbinic level.
Hamshachah alone reduces concern for sheu’vim to the rabbinic level, but it does not completely permit tap water. In order to completely permit tap water, we also employ the methods of hashakah and zeri’ah, which we will now discuss, to permit the actual use of tap water in our mikva’ot even on a rabbinic level.
Hashakah
Hashakah (literally, “kissing”) means that two bodies of water can become one entity by their waters meeting each other. For example, if the waters of a valid mikvah touch the waters of an adjacent pool of tap water, this “kiss” unites them as one body. Since the valid mikvah already contains forty sa’ah of rainwater, the addition of the neighboring mayim she’uvim does not invalidate it. Instead, the pool’s contents now lose their status as mayim she’uvim and obtain the status of the mikvah’s rainwater. One may thus purify oneself by immersing in the pool of tap water, too.
In order to practically implement hashakah, we construct two adjacent pools, separated by a common wall. Pipes that do not create a problem of mayim she’uvim (see our discussion above) direct rainwater into one pool, after which we fill the other with tap water. The tap water “kisses” the rainwater through a hole in the adjoining wall, rendering both pools fit for immersion. When the tap water is changed periodically to ensure a high level of cleanliness, the new water touches the rainwater through the hole, thereby remedying its prior status of mayim she’uvim.
The Mishnah (Mikva’ot 6:7) formulates a general principle that merging two mikva’ot requires a hole the size of a shefoferet hanod (the opening of a container), which it equates with a diameter that comfortably fits two fingers. Conversions of this measurement into inches range from approximately 1.5 inches (Rav Avraham Chaim Na’eh, Shiur Mikvah, p. 163) to three inches (recommended by Teshuvot Igrot Moshe, Y.D. 2:89). According to the Shulchan Aruch (Y.D. 201:53), this measurement is necessary only when one of the bodies being merged is invalid on a Biblical level. A mikvah of mayim she’uvim, though, is invalid only rabbinically, so it needs a hole only the size of a strand of hair to merge with a completely valid mikvah (see Beit Yosef, Y.D. 201 s.v. Haba Le’areiv). The Rama (ibid.), who disqualifies a mikvah of mayim she’uvim on a Biblical level, disagrees regarding the hole, too, and requires a hole the size of a shefoferet hanod between the two pools.
Assuming (like the Rama) that the hole between the two mikva’ot must be at least the size of a shefoferet hanod, the tap water in the mikvah must reach the top of the hole. In order to determine whether the water has reached this height, Rav Katz (Mikveh Mayim, vol. 3 p. 107) encourages constructing the adjoining wall with two colors of tiles. The color of the tiles below the hole should differ from the tiles above it, so one can easily notice if the water has dropped below the required level. Rav Katz describes several scenarios of how well-meaning people can accidentally invalidate a mikvah that lacks a clear system for easily verifying the water level.
After the two pools have merged, an opinion cited by Rabbeinu Yerucham (26:5) requires the hole between them to remain open at the time of immersion. Otherwise, the tap water loses its connection to the rainwater and returns to its former status as mayim she’uvim. The Rosh (Teshuvot 31:2) and Tur (Y.D. 201) explicitly permit closing the hole, arguing that once the two pools have come into contact, the tap water has been permanently “purified” from its status as mayim she’uvim. The Shulchan Aruch (Y.D. 201:52) rules in accordance with their view. Nevertheless, the Shach (Y.D. 201:112) concludes that it is best to accommodate the opinion cited by Rabbeinu Yerucham, so most mikva’ot today indeed open the hole whenever someone immerses.
Conclusion
Contemporary mikva’ot include tap water, raising the issue of mayim she’uvim. The process of hashakah alone solves this problem, but we also employ hamshachah as an added precaution. Zeriah, a third process to alleviate concern for mayim she’uvim, will be addressed in the next chapter.
Postscript
Rav Yirmiyah Katz graciously permitted us to reprint the illustrations of hashakah and hamshachah from his Mikveh Mayim. We hope the diagrams enhance and clarify our discussions.
Part IV; Zeri'ah
In our last chapter, we explained hamshachah and hashakah, two processes that permit filling a mikvah with mayim she’uvim, such as tap water, which would otherwise be unsuitable for immersion. This chapter discusses a third option to render mayim she’uvim suitable for immersion, the procedure commonly referred to as zeri’ah.
The Process of Zeri’ah
The Mishnah (Mikva’ot 6:8) describes a situation in which two pits exist along a mountainside, one above the other. The upper pit contains the required volume of rainwater for a mikvah (forty sa’ah; see previous chapters) while the lower pit is empty. In order to fill the bottom pit without waiting for rainfall, the Mishnah advises pouring buckets of water into the upper mikvah so that the resulting overflow will fill the bottom pit. Recall from the last chapter that once a mikvah contains the requisite amount of rainwater, one may add an unlimited amount of mayim she’uvim to the mikvah and it remains valid. Moreover, the added water is halachically transformed from mayim she’uvim into valid mikvah water. Thus, the buckets of water become fit for immersion the moment they touch the upper mikvah; the water then flows into the lower pit, resulting in two valid mikva’ot.
Most contemporary mikva’ot employ this process, called zeri’ah, by building a pool to hold rainwater (bor zeri’ah) next to a pool (bor tevilah) that will be filled with water that will overflow from the bor zeri’ah. After forty sa’ah of rainwater enter the first pool, we open the faucet above it, causing it to overflow into the adjacent pool (see diagram for clarification) through a hole in their common wall. The bor zeri’ah, which already constitutes a valid mikvah, converts the mayim she’uvim into valid mikvah water. When the water in the bor tevilah needs to be changed for health or aesthetic reasons, we empty it and repeat the process of zeri’ah. This term literally means “planting.” Conceptually, the water is replanted into a body of natural water, thus removing its status as mayim she’uvim (see Teshuvot B’tzeil Hachochmah 3:127), just as a seed achieves a new status when it is planted in the ground.
Zeri’ah vs. Hashakah
The process of zeri’ah differs from hashakah (see last chapter) because hashakah validates water, which entered the bor tevilah unfit for immersion, by subsequently connecting it to an adjacent pool of valid rainwater (bor hashakah). By contrast, zeri’ah validates the water before it enters the pool.
The Chatam Sofer (Y.D. 203; cited in Pitchei Teshuvah, Yoreh Deah 201:24) and the Chazon Ish (Y.D. 123:1-5) vigorously support the use of zeri’ah to create mikva’ot. In fact, mikva’ot in pre-war Hungary normally used the process of zeri’ah alone to render the water fit for immersion. Similarly, mikva’ot built in Bnei Brak and elsewhere in Israel under the supervision of the Chazon Ish operate with zeri’ah alone, without hashakah. Interestingly, this phenomenon might have ancient roots. In an essay published in Techumin (17:389-398), Asher Grossberg argues, based on archeological findings, that the ancient mikvah at Massada was filled solely through zeri’ah.
Problems with Zeri’ah
Three problems can arise if a mikvah is created exclusively through zeri’ah. The primary concern stems from the fact that the water already enters the bor tevilah as valid mikvah water, rather than undergoing a process inside the bor tevilah. As we discussed last chapter, three logim (a bit less than a quart) of mayim she’uvim disqualify a mikvah that lacks forty sa’ah of valid water. Accordingly, if the bor tevilah contains three logim of mayim she’uvim when zeri’ah is performed, then these three logim will invalidate the new flow of water as it arrives from the bor zeri’ah. Rav Katz (Mikveh Mayim, vol. 1, pp. 43, 59-60) relates incidents where more than three logim of mayim she’uvim were unintentionally present in the mikvah before the zeri’ah procedure and people subsequently immersed in the mikvah without realizing that it was not fit for immersion.
Today, when we generally employ pumps to drain the mikvah, this problem routinely arises. The pump can never remove every last drop of water from the mikvah, as some backwash of water always enters the pump, then leaves the pump and returns to the mikvah. In this situation, some mayim she’uvim will remain in the mikvah because the receptacles in the pumps will render the water mayim she’uvim before it returns to the mikvah (see Teshuvot Minchat Yitzchak 5:90 and Teshuvot Chelkat Yaakov 3:54). Hence, the mikvah must be dried thoroughly by hand to ensure that three logim of mayim she’uvim do not remain.
Due (in part) to this problem, most contemporary mikva’ot employ both zeri’ah and hashakah. If either process fails, then the other serves as a back up. Rav Avraham Chaim Na’eh (Shiur Mikvah, p. 165) notes that the accepted practice in Jerusalem is to employ both zeri’ah and hashakah. Rav Moshe Feinstein (Teshuvot Igrot Moshe, Y.D. 1:111) similarly recommends using both hashakah and zeri’ah whenever possible without great financial difficulty. Moreover, most mikva’ot also use hamshachah (as described in our previous chapter), in addition to the zeri’ah and hashakah processes, to further insure their validity. This combination recalls the words of Kohelet, “Two is better than one… and a threefold cord is not quickly broken” (4:9-12).
Zeri’ah B’Zochalin
The Acharonim raise a second challenge to zeri’ah, which relates to the problem of zochalin. Recall from two chapters ago that a mikvah is invalid if its waters flow beyond its boundaries (into a hole, crack, etc.). Accordingly, a number of Acharonim question how zeri’ah can work if the water flows out of the bor zeri’ah during the process. If a mikvah is disqualified when its water flows out, then the bor zeri’ah should lose its status as a valid mikvah while it overflows into the bor tevilah. Without this status, it should not render the tap water fit for immersion.
There are several ways to address this problem, and different mikva’ot have adopted various approaches. The Chazon Ish (ibid.) notes that the problem is less severe in mikva’ot where the tap water is validated by hamshachah even before it enters the bor zeri’ah. As we discussed last chapter, most Rishonim believe that even a full mikvah of mayim she’uvim which have undergone hamshachah is acceptable on a Torah level and invalidated only by rabbinic legislation. Thus, use of hamshachah reduces the entire issue to a rabbinic level and consequently allows greater room for leniency.
In order to completely resolve the problem of zochalin, the Chazon Ish suggests an approach that many mikva’ot today employ. He proposes constructing (see diagram at the conclusion of this chapter) the bor zeri’ah so that tap water enters through a hole in the wall’s lower portion and the overflow exits into the bor tevilah through a hole in the upper part of the wall that is shared by the bor zeri’ah and the bor tevilah. According to the Chazon Ish, this method alleviates concern for zochalin because the tap water enters the lower part of the bor zeri’ah, which is completely stationary. Rav Yaakov Breisch (Teshuvot Chelkat Yaakov 3:53:2) writes that he employed this method when constructing the mikvah in Zurich in 1959, and Dayan Yitzchak Weisz (Teshuvot Minchat Yitzchak 2:23) recounts using it for the mikvah in Manchester in 1957. Others criticize this approach, questioning how part of the mikvah can be considered stationary at the same time that another part constitutes zochalin.
Rav Yaakov Landa (in a letter printed in Taharat Hamayim, p. 183) suggests a third approach to solving concern for zochalin during zeri’ah. He recommends closing the hole between the bor zeri’ah and the bor tevilah while performing zeri’ah. In this manner, all the water remains in the bor zeri’ah, without any flow that raises concern about zochalin. After completing zeri’ah, the hole is then reopened and the excess water from the bor zeri’ah flows into the bor tevilah. Aside from practical concerns, such as the need for a bor zeri’ah that can hold an enormous volume of water, some criticize this method from a halachic perspective. They express concern that the water ultimately enters the bor tevilah through tefisat ye’dei adam (human intervention) when a human opens the hole leading from the bor zeri’ah to the bor tevilah.
Some Acharonim deny the need for any of the aforementioned solutions. They believe that the issue of zochalin does not actually present a problem for zeri’ah. Rav Moshe Feinstein (Teshuvot Igrot Moshe, Y.D. 1:112) explains that a zechilah does not disqualify a mikvah per se; rather, the concept of zochalin means that an individual may not immerse even in a valid mikvah so long as its waters are flowing out. Accordingly, the bor zeri’ah retains its status as a valid mikvah throughout the zeri’ah process, so it renders the tap water fit for immersion and enables the creation of a second valid mikvah in the adjacent bor tevilah. Rav Moshe cites the aforementioned Mishnah in Mikva’ot as support for his approach, because zochalin do not arouse concern regarding the validity of the upper pit when water overflows from it into the lower pit.
Natan Sa’ah V’Natal Sa’ah
The process of zeri’ah also raises concern for an issue known as natan sa’ah v’natal sa’ah. The Mishnah (Mikva’ot 7:2) writes that if a mikvah contains exactly forty sa’ah and one adds a sa’ah of fruit juice (without changing the water’s color) and subsequently removes a sa’ah of rainwater (natan sa’ah v’natal sa’ah), the mikvah remains valid. Although the mikvah no longer contains the minimum forty sa’ah of water, it still has forty sa’ah of liquid and the water nullifies the independent character of the one sa’ah of juice. The Gemara (Yevamot 82b) limits this leniency to a situation where more than twenty sa’ah of rainwater (a majority of its contents) remain in the mikvah. If, however, one repeated the process of adding fruit juice and then removing water until half or more of the mikvah’s contents were fruit juice, the mikvah would no longer be valid.
Most Rishonim believe that only fruit juice presents a problem when it becomes half or more of the mikvah because a mikvah must be comprised of water. On the other hand, adding mayim she’uvim and then removing the original water does not create a problem, because the original forty sa’ah remove the she’uvim status from new water upon its arrival in the mikvah. Thus, when water is later removed from the mikvah, we do not distinguish between the original water and the she’uvim since all the water is now valid. Unlike a situation where the mikvah is transformed from a mikvah of water to one of fruit juice, here the mikvah remains a mikvah of water throughout.
However, the Rambam (Hilchot Mikva’ot 4:7) and the Ra’avad (Ba’alei Hanefesh, Sha’ar Hamayim) rule that natan sa’ah v’natal sa’ah even invalidates a mikvah when mayim she’uvim become half or more of its contents. According to the Rambam and Ra’avad, it appears that more than twenty sa’ah of the original rainwater must remain in the mikvah in order for it to validate mayim she’uvim.
The Shulchan Aruch (Y.D. 201:24) and most of its commentaries rule in accordance with the lenient opinion advocated by the majority of Rishonim. The Shach (201:63), though, cites that the Tashbetz concludes that we should accommodate the strict opinion of the Rambam and Ra’avad, too. This poses a serious problem for the process of zeri’ah, as the repeated implementation of zeri’ah eventually removes at least half of the original forty sa’ah of rainwater from the bor zeri’ah. In order to avoid this problem, most contemporary mikva’ot employ both zeri’ah and hashakah (see, for example, Rav Moshe Feinstein Teshuvot Igrot Moshe, Y.D.1:111). This custom assumes that hashakah satisfies even the opinion of the Rambam and Ra’avad. The Chazon Ish, however, argues vehemently that the original forty sa’ah of rainwater does not remain even in a bor hashakah. Although it takes longer than a bor zeri’ah to lose the original rainwater, the Chazon Ish believes that the waters in the bor tevilah and the adjacent pool for hashakah easily mix and soon the original rainwater in the bor hashakah is lost. Hence, the Chazon Ish felt that there is no benefit to employ both hashakah and zeri’ah; rather, zeri’ah and hamshachah suffice in his view.
Conclusion
Most mikva’ot employ zeri’ah, hashakah, and hamshachah to insure the their validity. The Chatam Sofer and Chazon Ish, though, felt that zeri’ah without hashakah suffices. An oral tradition explaining why the Chazon Ish strongly opposed using hashakah appears in Rav Katz’s Mikveh Mayim (vol. 1 p. 43). Again, we thank Rav Katz for graciously permitting us to reprint illustrations from his book to help clarify the concepts that we have discussed.
Part V; Five Approaches to Creating a Mikvah
In the previous two chapters, we have outlined how to render tap water suitable for immersion through either hashakah or zeri’ah. We now outline five practical approaches to building a valid mikvah.
Rav Moshe Feinstein – Hashakah and Zeri’ah
In the previous chapter, we noted that mikva’ot in Jerusalem traditionally employed both the processes of hashakah and zeri’ah, an approach advocated by Rav Moshe Feinstein (Teshuvot Igrot Moshe, Yoreh Deah 1:111). Zeri’ah serves as a backup in case of failure in the hashakah process’s execution, but zeri’ah alone does not appear to satisfy the Ra’avad’s belief that more than twenty sa’ah (which we consider to be 500 liters) of the original rainwater must remain in the pool to render mayim she’uvim (such as tap water) fit for immersion. Rav Moshe believes that the use of a bor hashakah satisfies the Ra’avad’s view, because the original rainwater in the bor hashakah remains in place.
Chazon Ish – Zeri’ah Without Hashakah
We also mentioned in the last chapter that mikva’ot in Hungary before World War II utilized zeri’ah alone (following the Chatam Sofer), without hashakah. The Chazon Ish (Y.D. 123:1-5) strongly advocates this approach, arguing that hashakah adds nothing to a mikvah that employs zeri’ah. He believes that the process of hashakah does not satisfy the aforementioned opinion of the Ra’avad any more than the process of zeri’ah does. Although the original rainwater in the bor hashakah may remain longer than the water in the bor zeri’ah (which has tap water poured into it), some exchange of water undoubtedly occurs between the immersion pool and the bor hashakah whenever the plug between them is open. While these encounters might not remove large quantities of rainwater at once, the Chazon Ish argues that eventually less than twenty sa’ah of rainwater will remain in the bor hashakah.
It appears that this approach (using zeri’ah alone) does not satisfy the opinion of the Ra’avad. Nonetheless, this shortcoming does not bother the Chazon Ish, as most Rishonim reject the Ra’avad’s opinion, as do the Shulchan Aruch (Y.D. 201:24) and most of its commentaries. In fact, Rav Moshe Feinstein (ibid.) also acknowledges that the overwhelming majority of authorities do not accept the Ra’avad’s view, so he rules that a community need not accommodate it if building both a bor zeri’ah and a bor hashakah will place a tremendous financial burden on the people.
Divrei Chaim – Zeri’ah and Momentary Hashakah
Some mikva’ot seek to satisfy all opinions by employing both zeri’ah and a momentary hashakah, an approach that first appears in a responsum of the Divrei Chaim (Choshen Mishpat 37). A momentary hashakah consists of closing the connection between the bor hashakah and immersion pool save for a brief moment when it allows the waters to touch. In this manner, the original rainwater in the bor hashakah barely mixes with the immersion pool’s tap water. As the Chazon Ish notes, water is exchanged between the two pools primarily during the time when people immerse. Thus, minimal opportunity exists for the original rainwater in the bor hashakah to be lost without opening its connection to the mikvah during immersion.
The momentary hashakah does not satisfy the opinion (cited by Rabbeinu Yerucham) that requires opening the connection between the pools during the time of immersion. Although the Shulchan Aruch does not cite this view, the Shach (Y.D. 201:112) nevertheless encourages acting strictly in deference to it. However, mikva’ot that follow the Divrei Chaim’s approach also use zeri’ah, so the process of zeri’ah should negate the need for hashakah during the immersion. The momentary hashakah merely serves to also satisfy the Ra’avad’s concern for always maintaining over twenty sa’ah of original rainwater, an added stricture.
Most mikva’ot do not use momentary hashakah, due to concern that the opinion cited by the Rabbeinu Yerucham and the Ra’avad’s opinion derive from the same conceptual understanding. The opinion cited by Rabbeinu Yerucham (as explained by many Acharonim, including Rav Chaim Soloveitchik, commenting on the Mishnah, Mikva’ot 1:7) requires hashakah during immersion because it apparently maintains that the tap water remains fundamentally unacceptable for immersion unless it is actively connected with a rainwater pool. By contrast, the majority view maintains that contact with the bor hashakah transforms the tap water itself into valid water for immersion. Thus, following this transformation, the tap water need not maintain its physical connection to the rainwater.
Similarly, those who disagree with the Ra’avad argue that entering the bor zeri’ah renders the tap water itself fit for immersion, so a majority of the original forty sa’ah of rainwater need not remain in the bor zeri’ah. The Ra’avad presumably does not accept their position because he views the tap water as fundamentally invalid even after it enters the bor zeri’ah. Hence, only the presence of a majority of the original forty sa’ah of rainwater can validate the pool for immersion. According to this analysis, momentary hashakah would not validate the mikvah according to the Ra’avad. Although it prevents the bor hashakah from losing its original rainwater, the Ra’avad would not accept the mikvah without the tap water in the immersion pool physically touching rainwater during the immersion.
Lubavitch – Bor Al Gabei Bor
Rav Shalom Baer Schneersohn developed a new style of creating mikva’ot, which has become the standard manner of creating mikva’ot for Lubavitcher Chasidim and is thus commonly referred to as the “Lubavitcher Mikvah.”
Traditionally the hole that connects the immersion pool with the bor hashakah is on the sidewall of the mikvah. Rav Shalom Baer suggested placing the bor hashakah underneath the immersion pool, with a hole in the immersion pool’s floor connecting it to the bor hashakah. Rav Shalom Baer required two holes at the bottom of the mikvah, to insure constant contact between the two pools even if someone steps on one of the holes. He further added that the holes should have a tefach diameter (handbreadth, approximately four inches) rather than the Mishnah’s measurement of a shefoferet hanod (a tube in the opening of a container, between 1.5 and three inches). The reason for this final requirement remains a mystery although many have attempted to explain it.
These innovations attain at least three very significant achievements. Always leaving the hole between pools open eliminates concern lest the caretaker of the mikvah forget to open it before a woman immerses. Moreover, placing the hole in the immersion pool’s floor removes concern that the water level in the immersion pool could drop below the height of the hole in the sidewall.
Thirdly, Rav Shalom Baer’s approach also seems to satisfy the Ra’avad’s requirement that a majority of the forty sa’ah of the original rainwater remain in the bor hashakah. In most mikva’ot, water in the immersion pool is heated, whereas the bor hashakah remains cold (because no one immerses there). Since hot water rises above cold water, the rainwater in the bor hashakah underneath the immersion pool will not mix with the warmer water in the immersion pool.
Despite the tremendous appeal of Rav Shalom Baer’s approach, it has met considerable opposition. The Divrei Chaim (Y.D. 2:88) rejects the proposal of a community that wished to build a mikvah with the bor hashakah underneath the immersion pool. He cites the principle that water flowing along a slope (katapreis) into a mikvah does not join with the mikvah to purify objects that it envelops (Mishnah, Taharot 8:9). The Divrei Chaim extrapolates from this Mishnah that waters can merge halachically only if they lie side-by-side, rather than one above the other.
There are numerous approaches to defend the mikvah of Rav Shalom Baer from its detractors. Rav Shlomo Ganzfried (Lechem V’simlah, Simlah 201:98) suggests that a katapreis does not prevent a pool from combining with water to which it was deliberately connected. The Pnei Yehoshua (Gittin 16a) claims that a katapreis prevents the connection of waters only if the water that connects the two mikva’ot does not originate from the mikva’ot themselves. However, when the water that connects the two mikva’ot does originate from the mikva’ot themselves, such as when the water from the upper mikvah flows into the lower mikvah, it is a valid connection despite the fact that it is accomplished by katapreis. The Chatam Sofer (Y.D. 209) limits concern for a katapreis to small amounts of water, whereas here abundant water connects the two pools.
Moreover, it seems that even the Divrei Chaim would accept the mikva’ot that Lubavitchers commonly construct nowadays. Despite his concern for a katapreis, the Divrei Chaim acknowledges that water that has undergone hamshachah and therefore constitutes mayim she’uvim only on a rabbinic level can connect to a mikvah while flowing down a slope. In most contemporary mikva’ot, the water enters the mikvah through the process of hamshachah, so a katapreis would not prevent the two pools from merging.
Furthermore, when the two mikva’ot lie one above the other with only the separation of a floor, many authorities comment that even the Divrei Chaim appears to accept the mikvah. They argue that the Divrei Chaim explicitly rejects only connecting two separate mikva’ot with a vertical pipe, as the water flow within the pipe constitutes a katapries and thus cannot merge the mikva’ot. If, however, one pool lies directly above the other one, with merely a thin floor dividing them, then they are considered one large pool, so even the Divrei Chaim would not object to such a setup. In practice, Lubavitch mikva’ot are created with only a floor between the two pools. In fact, many non-Lubavitch communities build the mikvah for immersing utensils in this manner in order to save money. Although these communities do not wish to follow the Lubavitch custom regarding their women’s mikva’ot, there is not as great a need to be strict regarding a mikvah for utensils.
Rav Yaakov Breisch – The Split-Level Bor Hashakah
When Rav Yaakov Breisch built a mikvah in Zurich in 1959, he introduced a manner of creating a mikvah that attempts to satisfy the Ra’avad’s requirement to preserve more than twenty sa’ah of the original rainwater in the mikvah. His mikvah (described in Teshuvot Chelkat Ya’akov 3:53-54) contained both a bor zeri’ah and an immersion pool. In addition, he built an unusually large bor hashakah, which contained more than twice the required amount of rainwater. He subsequently placed horizontally a fiberglass sheet with a tiny hole in the middle of the bor hashakah, splitting it into two mikva’ot. He connected the bor hashakah’s upper mikvah to the immersion pool, while the bottom mikvah remained detached from it. Thus, even if one accepts the Chazon Ish’s contention that a bor hashakah normally loses its original rainwater, the bottom mikvah in Rav Breisch’s bor hashakah should retain the original rainwater.
In effect, Rav Breisch followed the same concept as Rav Shalom Baer’s mikvah, positioning a bor hashakah so that its rainwater would not mix with tap water from the immersion pool. He enhanced this approach, though, because his upper bor hashakah connects to the immersion pool’s side, avoiding the Divrei Chaim’s concern for a katapreis. Moreover, since no one immerses in the top mikvah of the bor hashakah, chances are even greater that the rainwater in the bottom mikvah will be preserved (see Teshuvot Minchat Yitzchak 5:92).
The two halves of the bor hashakah are connected by only a tiny opening, further reducing the opportunity for the original rainwater to be lost. The Rosh (commentary to Mikva’ot 6:8) claims that a hole must be a shefoferet hanod in order to connect water that is unfit for immersion to a valid mikvah, but any size can connect two valid mikva’ot. Thus, here a tiny hole suffices because each half of the bor hashakah contains enough water to function as an independent mikvah.
In general, other authorities have responded favorably to Rav Breisch’s innovation, and many mikva’ot throughout the world are indeed built on this system (sometimes with minor variations). For example, Rav Yitzchak Yaakov Weisz (Teshuvot Minchat Yitzchak 2:23 and 5:92) implemented this approach in the mikvah he built in Manchester. Rav Moshe Feinstein (Teshuvot Igrot Moshe, Y.D. 3:65), though, claims that this mikvah does not satisfy the opinion of the Ra’avad any better than a traditional bor hashakah. Rav Moshe argues that the Gemara’s principle of yeish bilah (Zevachim 80), which teaches that waters that touch are presumed to mix completely, runs counter to Rav Breisch’s assertion that the water in the bottom mikvah does not mix with the top mikvah.
Rav Nissen Telushkin (Taharat Hamayim p. 270), on the other hand, criticizes Rav Moshe’s application of this principle to Rav Breisch’s mikvah. According to him, yeish bilah means that when liquids mix with one another, they do so thoroughly. However, in situations where two bodies of water only touch each other through a tiny hole, they do not mix at all.
Conclusion
Each of the five styles of mikva’ot that we have described is acceptable beyond a doubt, as Rav Moshe Feinstein notes (Teshuvot Igrot Moshe, Y.D. 1:111 and 3:65). The debate regarding which method to use revolves around how to satisfy various stringent minority opinions. Indeed, the great halachic authorities of all generations have expended tremendous energy discussing and probing the laws of mikva’ot to insure that all our mikva’ot meet the highest possible halachic standards.
Biographical Notes
Aaronberg, Rav Yehoshua - The late author of Teshuvot Devar Yehoshua who served as a dayan on the Tel Aviv Beit Din.
Acharonim - Great rabbinical authorities of the 16th century to the present.
Achiezer - Responsa of Rav Chaim Ozer Grodzinsky, a halachic authority who resided in Vilna (1863 - 1940).
Adler, Rav Yosef - Principal of the Torah Academy of Bergen County and Rav of Congregation Rinat Yisrael in Teaneck, New Jersey. Student of Rav Yosef Dov Soloveitchik.
Ahavat Chessed - A halachic work on the laws regarding acts of kindness by Rav Yisrael Meir Kagan. See Mishnah Berurah.
Alon Shevut - Torah journal of Yeshivat Har Etzion in Alon Shevut, Israel.
Alon Shevut Bogrim - Torah journal of Yeshivat Har Etzion’s alumni.
Amital, Rav Yehuda - Rosh Yeshivat Har Etzion, Israel.
Ariel, Rav Yaakov - Rav of Ramat Gan, Israel.
Ariel, Rav Yoezer - Dayan in Tiberias, Israel.
Aruch Hashulchan - A halachic work on the Shulchan Aruch authored by Rav Yechiel Michel Epstein (1829 - 1908), Rav of Novardok, Russia.
Arugat Habosem - Responsa of Rav Moshe Greenwald, Rav of Chust, Romania (1853 – 1911).
Aseih Lecha Rav - Responsa of Rav Chaim David Halevi, Rav of Tel Aviv -Yafo and author of Mekor Chaim (d. 1998).
Assia - Journal of Halachah and medicine.
Auerbach, Rav Meir – Born in Poland, moved to Jerusalem in 1860. Authored responsa on parts of Shulchan Aruch and glosses on Talmud and Rambam’s Mishneh Torah. (1815 – 1878)
Auerbach, Rav Shlomo Zalman - A renowned halachic authority and the author of Teshuvot Minchat Shlomo and Me’orei Eish. He resided in Jerusalem and served as Rosh Yeshiva of Yeshivat Kol Torah (1910-1995).
Avnei Neizer - Responsa by Rav Avraham Bornstein, Rav of Sochaczov, Poland (1839 - 1910). He also wrote the Eglei Tal.
Baal Hama’or - Title of Rabbeinu Zerachiah Halevi, (12th century) derived from his commentary on the Rif, part of which is entitled Hama’or Hagadol and part of which is entitled Hama’or Hakatan. Born in Spain, he settled in Lunel, Provence.
Baal Shem Tov (Israel ben Eliezer) - Founder of the Chassidic movement (ca. 1700 – 1760).
Baalei Hanefesh - Code of the laws of nidah and mikva’ot by the Ra’avad. See Ra’avad.
Badei Hashulchan - Halachic work discussing various sections of Yoreh De'ah by Rav Feivel Cohen, Rav in Brooklyn, NY.
Bakshi-Doron, Rav Eliyahu – Former Sephardic Chief Rabbi of Israel.
Banet, Rav Mordechai - Author of Parashat Mordechai, responsa on the Shulchan Aruch. Born in Hungary; dayan in Moravia (1753 – 1829).
Basri, Rav Ezra - Sephardic dayan who resides in Jerusalem and is the author of Teshuvot Shaarei Ezra.
Be'er Heitiv - Commentary to Shulchan Aruch by Rav Zechariah Mendel of Belz, Ukraine (d. 1706).
Be’er Moshe - Responsa of Rav Moshe Stern, Rav in Debreczin and, later, in Brooklyn, NY (d. 1997).
Be’er Sheva - Responsa of Rav Yissachar Baer Eilenberg, student of the authors of Levush and Sema. Born in Poland, he served as a Rav in Italy, and died in 1623 on his way to become the Ashkenazic Rav of Safed, Israel.
Be'er Yitzchak - Responsa of Rav Yitzchak Elchanan Spektor. See Ein Yitzchak.
Beit Avi - See Liebes, Rav Yitzchak Isaac.
Beit Ephraim - Responsa of Rav Ephraim Zalman Margolies (1760-1828).
Beit Halevi - Responsa and Bible commentary of Rav Yosef Dov Soloveitchik, Rav of Brisk, Lithuania (1820 -1892). The Rosh Yeshiva at Yeshiva University bearing his name was his great-grandson.
Beit Shlomo - Responsa of Rav Shlomo of Skole, Poland (d. ca. 1873).
Beit Shmuel – Major commentary to the Even Ha'ezer section of the Shulchan Aruch and authored by Rav Shmuel ben Uri Shraga Feivish (Poland, 17th Century).
Beit Yitzchak - A halachic journal published annually by Yeshiva University.
Beit Yitzchak - Responsa of Rav Yitzchak Shmelkes, a prominent authority in Galicia (1828-1906).
Beit Yosef - Commentary of Rav Yosef Karo to the Tur.
Ben Yaakov, Rav Tzvi Yehudah - Dayan in Tel Aviv, Israel.
Berlin, Rav Naftali Tzvi Yehudah (Netziv) - Head of Yeshivat Volozhin in Russia and the author of Teshuvot Meishiv Davar, Ha'eimek Davar on the Torah, Meromei Sadeh on the Talmud, and Ha'eimek She'eilah on the She'iltot of Rav Achai Gaon. The Netziv lived from 1817 to 1893.
Berman, Dr. Joel - Science Department Chairman at the Torah Academy of Bergen County (NJ). He holds a doctorate in chemical physics.
Bick, Rav Ezra - Rebbe at Yeshivat Har Etzion in Alon Shevut, Israel.
Bikurei Asher - Responsa of contemporary Jerusalem Rabbinical Court dayan Rav Massoud Elchadad.
B’ikvei Hatzon - Collection of essays by Rav Hershel Schachter. See Schachter, Rav Hershel.
Bintivot Hahalachah - Responsa of Rav J. David Bleich; see Bleich, Rav J. David.
Binyan Av - Collection of essays and responsa by Rav Eliyahu Bakshi-Doron. See Bakshi-Doron, Rav Eliyahu.
Biomedical Ethics and Jewish Law - Collection of essays about medical ethics by Dr. Fred Rosner, Professor of Medicine at Yeshiva University’s Albert Einstein College of Medicine, partially adapted from his earlier book, Modern Medicine and Jewish Ethics.
Birkei Yosef - Commentary on the Shulchan Aruch by the Chida (Rav Chaim Yosef David Azulai), a major Sephardic authority who lived in Israel and later in Leghorn, Italy, and authored dozens of books (1724-1806).
Biur Hagra - Commentary of the Vilna Gaon (1720 - 1797), Rav Eliyahu Kramer of Vilna, to the Shulchan Aruch.
Biur Halachah - Analytical commentary to the Orach Chaim section of the Shulchan Aruch by Rav Yisrael Meir Kagan; see Mishnah Berurah.
Blau, Rav Yaakov – Contemporary halachic authority who resides in Jerusalem, who authored the Netivot Shabbat and Pitchei Choshen.
Bleich, Rav J. David - Rosh Yeshiva at Yeshiva University in New York and the author of Bintivot Hahalachah and Contemporary Halakhic Problems.
Bnei Banim - Responsa of Rav Yehuda Henkin. See Henkin, Rav Yehuda.
B’tzeil Hachochmah - Responsa of Rav Betzalel Stern, older brother of Rav Moshe Stern (author of Be’er Moshe) and Rav in Rome, Melbourne, Vienna, and Jerusalem (1911-1989).
Chacham Tzvi - Responsa of Rav Tzvi Ashkenazi of Amsterdam (1660 -1718).
Chafetz Chaim - Rav Yisrael Meir Kagan’s comprehensive code of hilchot shemirat halashon (laws of proper speech). See Mishnah Berurah.
Chatam Sofer - Responsa of Rav Moshe Sofer (1763 - 1839), Rav of Pressburg, Hungary.
Chavalim Banimim - Responsa of Rav Yehuda Leib Graubart, Rav in Toronto in the early 20th century (d. 1938).
Chavat Binyamin - Collection of essays on halachic topics by Rav Shaul Yisraeli. See Yisraeli, Rav Shaul.
Chavot Yair - Responsa of Rav Yair Chaim Bachrach (1638 - 1702), Rav of Worms, Germany.
Chazon Ish – Major halachic work by Rav Avraham Yeshayah Karelitz (1878 - 1953) of Bnei Brak, Israel.
Chazon Ovadia - Responsa and summary of the laws of Pesach by Rav Ovadia Yosef. See Yosef, Rav Ovadia
Cheishev Ha’eifod - Responsa of Rav Chanoch Padwa, Rav in London in the mid-20th century.
Chelkat Mechokeik – Major commentary on the Even Ha’ezer section of Shulchan Aruch by Rav Moshe of Brisk, Lithuania (17th century).
Chelkat Yaakov - Responsa of Rav Yaakov Breisch, Rav in Zurich, Switzerland (d. 1977).
Chelkat Yoav - Responsa of Rav Yoav Weingarten, Rav in Kinsk, Poland, in the early 20th century.
Chok Yaakov - Commentary to the laws of Passover of the Shulchan Aruch, by Rav Yaakov Reisher (Germany, 1670 - 1733).
Choshen Mishpat - The section of Shulchan Aruch that deals with monetary laws.
Choshen Ha’eifod - Responsa of Rav David Pipano, Rav in Sofia and Sephardic authority in the late 19th century and early 20th century.
Cohen, Rav Shear Yashuv - Chief Rabbi of Haifa, Israel.
Contemporary Halakhic Problems - A review of contemporary responsa literature by Rav J. David Bleich, Rosh Yeshiva at Yeshiva University in New York.
Daf Kesher - Weekly publication of Yeshivat Har Etzion that contains divrei Torah and Yeshiva news. Every few years, these publications are combined into a book.
Dagul Meir’vavah - Commentary on the Orach Chaim section of the Shulchan Aruch by Rav Yechezkel Landau, author of Noda Biy’hudah and Rav of Prague (1713-1793).
Darchei Moshe - The Rama's commentary to the Tur. See Rama.
Darchei Taharah - Discussion of the laws of nidah by Rav Mordechai Eliyahu, former Sephardic Chief Rabbi of Israel. See Eliyahu, Rav Mordechai.
Darchei Teshuva - A compilation of the responsa literature to the Yoreh Deah section of the Shulchan Aruch by Rav Tzvi Hirsch Shapira (1850-1913).
Dasberg, Rav Uri - An editor of Techumin who resides in Alon Shevut, Israel.
David, Rav Shmuel - Rav of Afula, Israel, who is a student of Rav Aharon Lichtenstein and the author of Sh’eilot Uteshuvot Meirosh Tzurim. He is a former rabbi of Kibbutz Rosh Tzurim.
Devar Avraham - Responsa of Rav Avraham Shapira, Rav of Kovno in the early 20th century (d. 1939).
Devar Emet - Responsa of Rav Yedidiah Monsonego, Sephardic authority.
Devar Yehoshua - Responsa of Rav Yehoshua Ehrenberg (1904-1976), Av Beit Din of the Tel Aviv Rabbinical Court.
Dibrot Moshe - Lectures on the Talmud by Rav Moshe Feinstein. See Feinstein, Rav Moshe.
Dichovsky, Rav Shlomo - Member of the Beit Din Hagadol of the Chief Rabbinate of Israel.
Dinei Mamonot - Study of Jewish monetary law by Rav Ezra Basri. See Basri, Rav Ezra.
Divrei Chaim - Responsa of Rav Chaim Halberstam, Chassidic Rebbe of Sanz, (1793-1876).
Divrei Malkiel - Responsa of Rav Malkiel Tannenbaum of Lomza (late 19th and early 20th centuries).
Divrei Yoel - Responsa of Rav Yoel Teitelbaum, the Chassidic Rebbe of the Satmar community (d. 1979).
Drishat Tzion - Discussion of renewing the offering of korbanot (ritual sacrifices) by Rav Tzvi Hirsch Kalischer (1795-1874).
Eglei Tal - Discussion of many laws of Shabbat by Rav Avraham Bornstein, Rav of Sochaczov, Poland (1839 - 1910). He also wrote the Avnei Neizer.
Eider, Rav Shimon - The author of numerous halachic works in English who resides in Lakewood, NJ.
Eiger, Rav Akiva - Author of many responsa and a commentary to the Shulchan Aruch (1761 - 1837). He served as Rav of Posen, Poland.
Eimek She’eilah - Responsa of Rav Mordechai Dov Twersky (1840-1904). At age thirteen, he married the daughter of the Divrei Chaim, and he later served as a Chassidic Rebbe in Hornistopol.
Ein Yitzchak - Reponsa of Rav Yitzchak Elchanan Spektor, Rav of Kovno, Lithuania (1817 - 1896). He also wrote Be'er Yitzchak.
Eliashiv, Rav Yosef Shalom - Halachic authority who resides in Jerusalem. Many of his responsa were collected and published under the title Kovetz Teshuvot.
Eliyahu, Rav Mordechai - Halachic authority who resides in Jerusalem. He served as Israel's Sephardic Chief Rabbi from 1983 to 1992.
Encyclopedia Talmudit - Encyclopedia of Talmudic concepts published as an ongoing project of Yad Harav Herzog.
Even Ha'ezer - The section of the Shulchan Aruch that deals with family law.
Eretz Hatzvi - Collection of essays by Rav Hershel Schachter. See Schachter, Rav Hershel.
Eretz Yisrael - Summary of laws pertaining to the Land of Israel by Rav Yechiel Michel Tukachinsky. See Tukachinsky, Rav Yechiel Michel.
Ezrat Kohen - Responsa on the Even Ha’ezer section of Shulchan Aruch by Rav Avraham Kook. See Kook, Rav Avraham Yitzchak Hakohen.
Feinstein, Rav David - Son of Rav Moshe and Rosh Yeshiva of Mesivta Tifereth Jerusalem in Manhattan, New York.
Feinstein, Rav Moshe - A renowned halachic authority who authored Teshuvot Igrot Moshe and served as Rosh Yeshiva of Mesivta Tifereth Jerusalem in New York (d. 1986).
Feinstein, Rav Reuven - Son of Rav Moshe and Rosh Yeshiva of Mesivta Tifereth Jerusalem in Staten Island, NY.
Fischer, Rav Shlomo - Dayan in Jerusalem and author of Beit Yishai (insights to Gemara).
Frank, Rav Tzvi Pesach - Rav of Jerusalem who authored Teshuvot Har Tzvi and Mikra'ei Kodesh, a discussion of laws of festivals (1873-1960).
Gesher Hachaim - Classic work on the laws of mourning by Rav Yechiel Michel Tukachinsky. See Tukachinsky, Rav Yechiel Michel.
Goldberg, Rav Zalman Nechemia - A son-in-law of Rav Shlomo Zalman Auerbach who serves on the Beit Din Hagadol of Israel's Chief Rabbinate and resides in Jerusalem.
Goren, Rav Shlomo - Israel's Ashkenazic Chief Rabbi from 1972 to 1982 (d. 1994). He wrote several books, including Torat Hamedinah and Torat Hashabbat Vehamo’eid.
Gra - Gaon Rabbeinu Eliyahu, acronym for the Vilna Gaon. See Biur Hagra.
Greenblatt, Rav Ephraim - Rav in Memphis, TN author of Teshuvot Rivevot Ephraim.
Gulot Iliyot - An extensive analysis of Masechet Mikva’ot from the Mishnah by Rav Dov Baer Lipshitz (19th century).
Ha’ameik Davar - The Netziv’s commentary on the Torah. See Berlin, Rav Naftali Tzvi Yehudah.
Hachashmal Bahalachah - Bibliography of halachic issues related to electricity, published in 1978 by the Institute for Science and Halacha in Jerusalem.
HaDarom - The Torah journal of the Rabbinical Council of America.
Ha'elef Lecha Shlomo - Responsa of Rav Shlomo Kluger (1785-1869).
Halevi, Rav Chaim David - Rav of Tel-Aviv-Yafo, author of Aseih Lecha Rav and Mekor Chaim (d. 1998).
Hag’alat Keilim – Discussion of the laws of kashering by Rav Tzvi Cohen, published in 1980.
Hailperin, Rav Levi Yitzchak - Director of the Department of Halacha for the Institute for Science and Halacha in Jerusalem. He has written several books on issues of Halachah and electricity, including his responsa, Maaseh Chosheiv, and Maaliyot B’shabbat (elevators on Shabbat).
Halachah Urefu’ah - Multi-volume symposium on Halachah and medicine, edited by Rav Moshe Hershler and published in the 1980's by the Beit Hamidrash Latorah in Chicago, IL.
The Halachos of Pregnancy and Childbirth - Summary of these laws by Rav Yisroel Dov Webster, Rosh Yeshiva at Yeshiva Emek Halacha in Brooklyn, NY.
Halichot Olam - Rav Ovadia Yosef’s eight-volume commentary on the Ben Ish Chai. See Yosef, Rav Ovadia.
Halichot Teiman -See Kafich, Rav Yosef.
Halperin, Dr. Mordechai – Chief officer of Medical Ethics at the Israeli Ministry of Health; editor of Assia.
Hamishpat Ha’ivri - A comprehensive discussion of Jewish legal systems throughout history by Justice Menachem Elon, former Deputy Chief Justice of Israel.
Hamo'adim Bahalachah - Discussion of the laws of holidays by Rav Shlomo Yosef Zevin, editor of the Encyclopedia Talmudit (1890-1978).
Hanisu’in Kehilchatam - Digest of the laws of the marriage process by Rav Binyamin Adler, who resides in Jerusalem.
Har Hakodesh - Extensive commentary on the Pe’at Hashulchan by Rav Moshe Nachum Shapiro.
Har Tzvi - Responsa of Rav Tzvi Pesach Frank, Rav of Jerusalem (d. 1960).
Heichal Yitzchak - Responsa of Rav Yitzchak Isaac Herzog (1888-1959), Ashkenazic Chief Rabbi of Israel at the time of its independence. He also wrote Techukah Leyisrael Al Pi Hatorah.
Heinemann, Rav Moshe – Rabbinic Administrator of the Star-K and Rav in Baltimore, MD.
Henkin, Rav Yosef Eliyahu - A halachic authority who was born in Belorussia resided in New York after his emigration to the United States in 1922; author of Teshuvot Ibra and Peirushei Ibra (1880-1973).
Henkin, Rav Yehuda - A halachic authority who has authored Teshuvot Bnei Banim and Equality Lost and is the grandson of Rav Yosef Eliyahu Henkin. He resides in Jerusalem.
Hilchot Medinah - Discussion of laws pertaining to the State of Israel by Rav Eliezer Waldenberg. See Tzitz Eliezer.
Igrot Moshe - Responsa of Rav Moshe Feinstein. See Feinstein, Rav Moshe.
Imrei Yosher - Responsa of Rav Meir Arik, Rav in Tarnow, Galicia (1855-1926).
Ir Hakodesh V'hamikdash - A work about issues pertaining to Jerusalem authored by Rav Yechiel Michel Tukachinsky, Rav in Jerusalem (1872-1955). See Tukachinsky, Rav Yechiel Michel.
The Journal of Halacha and Contemporary Society - A halachic journal published semi-annually by the Rabbi Jacob Joseph Yeshiva in Staten Island, NY.
Kaftor Vaferach - Discussion of laws pertaining to Eretz Yisrael written by Rabbeinu Ashtori Haparchi, who traveled from Europe to Israel (13th/14th centuries).
Kafich, Rav Yosef - Leading Torah scholar of the Yemenite community in Israel and member of the Israeli Chief Rabbinate’s Beit Din Hagadol (Supreme Rabbinical Court), he authored a comprehensive commentary on the Rambam and translated many medieval religious texts from Arabic into Hebrew, including Moreh Nevuchim, Ha’emunot Vehadei’ot, Chovot Halevavot, and the Kuzari. He also wrote Halichot Teiman, a thorough description of Jewish communal and religious life in Yemen (1917 – 2000).
Kaminetsky, Rav Yaakov - Rosh Yeshiva of Torah Vodaath (d. 1986).
Kanievsky, Rav Chaim - Rav in Bnei Brak, Israel, and son of Rav Yaakov Kanievsky (author of Kehilot Yaakov).
Karelitz, Rav Nissim - Rosh Kollel Chazon Ish in Bnei Brak, Israel, and nephew of the Chazon Ish.
Karo, Rav Yosef – Great halachic authority who lived in Safed (1488 – 1575) and authored Shulchan Aruch, Kesef Mishneh, Beit Yosef and responsa.
Katz, Rav Yirmiyah - Rav in Brooklyn, NY, known for his expertise in the laws of mikva’ot; authored Mikveh Mayim.
Kedushat Hashabbat - Discussion of the status of electricity in Halachah on Shabbat and holidays by Rav Moshe Harari. See Mikra’ei Kodesh.
Kehilot Yaakov - Insights to the Talmud by the Steipler Rav, Rav Yaakov Kanievsky, Rav in Bnei Brak, Israel, and brother-in-law of the Chazon Ish (1899 - 1985).
Kiryat Sefer - Commentary of the Mabit on the Rambam’s Mishneh Torah to explain whether laws cited by the Rambam are Biblical or rabbinical. See Mabit.
Kitover, Rav Gershon - Brother-in-law of the Baal Shem Tov (d. ca. 1760).
K’lavi Shachein - Collection of essays in memory of Gad Ezra, an Israeli soldier who died attempting to rescue a wounded soldier in Jenin during Operation Defensive Wall (2002).
Klei Chemdah – Commentary on the Torah by Rav Meir Dan Plotzki, Rav in Poland (ca. 1867 – 1928).
Kol Zvi - Torah journal of Yeshiva University’s Kollel Elyon.
Kook, Rav Avraham Yitzchak Hakohen - Ashkenazic Chief Rabbi in Israel from 1921 through 1935 and the author of numerous halachic and philosophical works, including Teshuvot Orach Mishpat.
Kook, Rav Tzvi Yehuda - Son of Rav Avraham Yitzchak Hakohen Kook who served as Rosh Yeshivat Merkaz Harav (d. 1982).
Korban Netaneil - Commentary on the Rosh by Rav Netaneil Weil (1687-1769).
Kovetz Teshuvot - Collection of Rav Yosef Shalom Eliashiv’s letters and essays. See Eliashiv, Rav Yosef Shalom.
K’tav Sofer - Responsa of Rav of Pressburg, Hungary, who succeeded his father, Rav Moshe Sofer (author of Chatam Sofer).
Kumu V’Naaleh - Collection of essays about the contemporary status of the Temple Mount, printed by the Zomet Institute in Alon Shevut, Israel (Rav Yisrael Rozen and Rav Yehudah Shaviv, eds.).
Landa, Rav Yaakov – Rav in Bnei Brak, Israel, in the mid-20th century.
Landesman, Rav Leib - Dayan on the Kollel Harabbonim beit din in Monsey, NY.
Leaves of Faith - Collection of essays by Rav Aharon Lichtenstein. See
Lichtenstein, Rav Aharon.
Lechem Mishneh - Commentary on Rambam's Mishneh Torah by Rav Avraham Boton, Rav in 16th century Salonika.
Lechem Vesimlah - Commentary on the laws of nidah and mikva’ot from the Shulchan Aruch, by Rav Shlomo Ganzfried (1804 – 1886), author of the Kitzur Shulchan Aruch.
Leiter, Rav Israel – Rav in pre-war Galicia and Poland who served as a Rav in Brooklyn, New York after the war (1910-2003).
Lev Aryeh - Responsa of Rav Aryeh Grossnass, late dayan of the London Beth Din (20th century).
Lev Avraham - Discussion of medical halachot by Dr. Avraham S. Avraham. See Nishmat Avraham.
Levin, Rav Faitel - Rav in Melbourne, Australia.
Levush - Halachic code written by Rav Mordechai Jaffe, a student of the Rama.
Levy, Rav Shlomo - Rosh Kollel of Yeshivat Har Etzion in Alon Shevut, Israel.
Lichtenstein, Rav Aharon - Rosh Yeshivat Har Etzion in Alon Shevut, Israel and son-in-law of Rav Yosef Dov Soloveitchik. He has written several books and essays, including Leaves of Faith.
Lichter, Reb Elya - Noted sofer (scribe) for gittin who resides in the Williamsburg section of Brooklyn, NY.
Liebes, Rav Yitzchak Isaac – Late Av Beit Din of the Iggud Harabanim of America and author of Teshuvot Beit Avi (d. 1999).
Lior, Rav Dov - Rav of Kiryat Arba and Rosh Yeshiva of Yeshivat Kiryat Arba, Israel.
Livyat Chein - Rav Ovadia Yosef’s comments on the Mishnah Berurah’s laws of Shabbat. See Yosef, Rav Ovadia.
Maaseh Chosheiv - Responsa of Rav Levi Yitzchak Hailperin. See Hailperin, Rav Levi Yitzchak
Mabit - Rav Moshe ben Yosef Trani, younger contemporary of Rav Yosef Karo in 16th-century Safed, Israel.
Machanayim - Torah journal of the Israel Defense Forces Chief Rabbinate.
Magen Avraham - Commentary to the Orach Chaim section of the Shulchan Aruch, authored by Rav Avraham Gombiner (ca. 1634 - 1682).
Maggid Mishneh - Commentary to the Rambam's Mishneh Torah by Rav Vidal of Tolosa (14th century Spain).
Maharam Lublin - Acronym for Moreinu Harav Meir of Lublin, a Polish authority who wrote responsa and a commentary on the Gemara (1558-1616).
Maharam of Rothenburg - Rabbeinu Meir ben Baruch Halevy of Rothenburg, (1320 - 1390) who authored numerous responsa. The Mordechai and the Rosh are his disciples.
Maharil - Rav Yaakov ben Moshe, German Rav in the late 14th and early 15th centuries.
Maharit - Acronym for Moreinu Harav Yosef of Trani, son of the Mabit, Rav in early 17th century Safed, Israel.
Maharsha - Acronym for Moreinu Harav Shmuel Eidels. He authored a commentary to the Talmud and the commentaries of Rashi and Tosafot to the Talmud (ca. 1555 - 1632).
Maharshag - Acronym for Moreinu Harav Shimon Grunfeld, author of many responsa and Rav of Munkacz and Smahali in pre-World War II Europe (1881 - 1930).
Maharsham - Acronym for Moreinu Harav Shlomo Mordechai Schwadron, author of responsa, who served as Rav in Berzan, Galicia (1835 - 1911).
Mar’eh Kohein - Discussion of the laws of nidah by Rav Yitzchak Mordechai Rubin, Rav in the Har Nof neighborhood of Jerusalem.
Mas'at Binyamin - Responsa of Rav Binyamin Solnik, student of the Rama and Maharshal (d. ca. 1620).
Mayim Chaim - Responsa of Rav Chaim David Halevi. See Halevi, Rav Chaim David.
Mechilta - Midrash that derives many details of the Oral Law from verses in Shemot.
Meiri - Commentary to the Talmud by Rabbeinu Menachem Hameiri (ca. 1249 - ca. 1306), mostly entitled Beit Habechirah.
Meishiv Davar - Responsa of the Netziv. See Berlin, Rav Naftali Tzvi Yehudah.
Meishiv Milchamah - See Goren, Rav Shlomo
Melamed Leho'il - Responsa of Rav David Tzvi Hoffman, a halachic authority who headed the Orthodox Rabbinical Seminary of Berlin and wrote a Bible commentary to refute Bible critics (1843 -1921).
Me’orei Eish - Discussion of the status of electricity in Halachah by Rav Shlomo Zalman Auerbach. See Auerbach, Rav Shlomo Zalman.
Mesilat Yesharim - Classic work of the Ramchal (Rav Moshe Chaim Luzzato – b. 1707, Padua, Italy; d. 1746, Acco, Israel) designed to help people improve their character traits.
Mesorah - Torah journal of the Orthodox Union’s kashrut division.
Mikdash Melech - Discussion of the laws of sacrifices, especially the issue of beginning to offer sacrifices once again, by Rav Tzvi Pesach Frank. See Frank, Rav Tzvi Pesach
Mikra’ei Kodesh - Discussion of the laws of festivals by Rav Tzvi Pesach Frank. See Frank, Rav Tzvi Pesach.
Mikra’ei Kodesh - Discussion of the laws of festivals by Rav Moshe Harari, Yeshivat Merkaz Harav, Jerusalem, including many rulings that Rav Harari heard from contemporary Israeli authorities.
Mikveh Mayim - Comprehensive study of the laws of mikva’ot (ritual baths) by Rav Yirmiyah Katz. See Katz, Rav Yirmiyah.
Minchat Chein – Sefarim authored by Rav Noach Oelbaum, Rav in Queens, NY.
Minchat Chinuch - Commentary on the Sefer Hachinuch authored by Rav Yosef Babad, who served as Rav of Tarnipol in the Ukraine (1800 - 1875).
Minchat Elazar - Responsa of Rav Chaim Zev Elazar Shapiro, Chassidic Rebbe of Munkacz.
Minchat Shlomo - Responsa of Rav Shlomo Zalman Auerbach. See Auerbach, Rav Shlomo Zalman.
Minchat Shmuel - Essays on contemporary halachic topics by Rav Shmuel Khoshkerman, Sephardic Rav in Atlanta, GA.
Minchat Yitzchak - Responsa of Rav Yitzchak Yaakov Weisz, dayan of the Eidah Chareidit of Jerusalem (d. 1989).
Mishkan Shiloh - Collection of essays by Rav Shilo Raphael, dayan on the Jerusalem Rabbinical Court (d. 1994).
Mishkenot Yaakov - Responsa of Rav Yaakov of Karlin (d. 1845).
Mishnah Berurah - Commentary to the Orach Chaim section of the Shulchan Aruch authored by Rav Yisrael Meir Hakohen Kagan (1838 - 1933), who lived in Radin, Poland. He is commonly known as the Chafetz Chaim, the title of his work on the laws of slander, and also wrote the Biur Halachah, Shaar Hatziyun, and Ahavat Chessed.
Mishnat Hasar - Collection of essays by Rav Lord Yisrael (Immanuel) Jakobovits, former Chief Rabbi of the United Kingdom (1921 - 1999).
Mishpetei Uzziel - Responsa of Rav Ben-Zion Uzziel, Israel's Sephardic Chief Rabbi from 1939 to 1953. He lived from 1880 to 1953.
Mitzvat Ner Ish Uveito - Discussion of Chanukah in Halachah and Aggadah by Rav Eliyahu Shlezinger, Rav of the Gilo neighborhood of Jerusalem and member of the Jerusalem Rabbinical Court.
Mo’adim Uzmanim - A collection of essays on the Jewish holidays by Rav Moshe Shternbuch, dayan on the Eidah Chareidit’s Badatz (rabbinical court) and author of Teshuvot Vehanhagot.
Mohilewer, Rav Shmuel - Rav of Bialystok and author of responsa, Teshuvot Maharash Mohilewer (1824-1898).
Mordechai - Halachic compendium on most tractates of the Talmud authored by Rav Mordechai ben Hillel (ca. 1240 - 1298).
Nefesh Harav - Rav Hershel Schachter’s collection of Rav Yosef Dov Soloveitchik’s insights and personal halachic practices. See Soloveitchik, Rav Yosef Dov and Schachter, Rav Hershel.
Netivot Hamishpat - Commentary on the Choshen Mishpat section of Shulchan Aruch by Rav Yaakov of Lissa. He also wrote the Torat Gittin on the laws of Jewish divorce and the Mekor Chaim on the laws of Pesach (d. 1832).
Netziv - See Berlin, Rav Naftali Tzvi Yehudah.
Neuwirth, Rav Yehoshua - Halachic authority who resides in Jerusalem; author of Shemirat Shabbat Kehilchatah.
Nishmat Avraham - Discussion of halachot pertaining to medicine by Dr. Avraham S. Avraham, a physician who resides in Jerusalem, Israel.
Nitei Gavriel - Digest of the laws of festivals and several other halachic topics by Rav Gavriel Zinner, Rav in Brooklyn, NY.
Noam - Halachah journal edited by Rav Menachem Kasher in the mid-20th century.
Noda Biy'hudah - Responsa of Rav Yechezkel Landau, who served as Rav of Prague (1713 - 1793).
Orach Chaim - The section of the Shulchan Aruch that deals with the laws of daily living.
Orach Mishpat - Responsa of Rav Avraham Yitzchak Hakohen Kook. See Kook, Rav Avraham Yitzchak Hakohen.
Orchot Chaim - Halachic work that gathers opinions of various Rishonim by Rav Aharon of Lunel (late 13th and early 14th century Provence).
Orchot Chaim - Summary of the responsa literature on the Orach Chaim section of Shulchan Aruch by Rav Nachman Kahane of Spinka (early 20th century).
Otzar Haposkim – An encyclopedic compilation of responsa literature on the Even Ha'ezer section of Shulchan Aruch published in Jerusalem.
Pam, Rav Avraham - Rosh Yeshivat Torah Vodaath, Brooklyn, NY (d. 2001).
Pe’at Hashulchan - Discussion of laws pertaining to the Land of Israel by Rav Yisrael of Shklov, a student of the Vilna Gaon who immigrated to Israel and resided primarily in Safed (ca. 1770-1839).
Pe’er Hador - Collection of stories about the Chazon Ish. See Chazon Ish.
Piskei Din Batei Din Harabaniyim - Records of rulings issued by the batei din of the Israeli Rabbinate.
Pitchei Choshen – An authoritative discussion of business laws by Rav Yaakov Blau of Jerusalem.
Pitchei Teshuvah - Commentary on the Orach Chaim section of Shulchan Aruch printed in 1874 by Rav Yisrael Isserlin, Rav in Vilna.
Pitchei Teshuvah - Summary of the responsa literature from the 17th century to the early 19th century presented as a commentary to the Shulchan Aruch. It was written by Rav Tzvi Hirsh Eisenstadt, Rav of Utian, Russia (1812 - 1868).
Pnei Yehoshua - Insights to the Gemara and Responsa by Rav Yaakov Yehoshua Falk, Rav in Lvov, Poland and Frankfurt, Germany (1680 - 1756).
The Practical Torah - Essays on halachic topics, organized according to the weekly Torah readings, by Rav Michael Taubes, Menahel of the Mesivta of North Jersey and Rav of Kehillas Tzemach Dovid in Teaneck, NJ.
Pri Megadim - Commentary on the Shulchan Aruch by Rav Yosef Te'omim, Rav of Frankfurt (1727-1792).
Raavad - Acronym for Rabbeinu Avraham ben David of Posquieres, France, who wrote many works, including critical comments to Rambam's Mishneh Torah (ca. 1120 - ca. 1197).
Raavyah - Acronyom for Rav Eliezer ben Yoel Halevi, Ashkenazic Rishon of the early 13th century. He wrote Aviasaf.
Rabbeinu Chananeil – Eleventh-century author of a commentary to the Talmud and Rav in Kairouan (Tunisia).
Rabbeinu Tam - Rabbeinu Yaakov ben Meir, Rashi's grandson, who lived in France and was the most prominent of the Tosafists (1100 - 1171).
Radak - Acronym for Rabbeinu David Kimchi, author of a Bible commentary (1160 - 1235).
Radbaz - Acronym for Rabbeinu David ben Zimra, who authored numerous responsa and a commentary on parts of the Rambam's Mishneh Torah and served as Chief Rabbi of Egypt (ca. 1480 -1573).
Rakover, Nachum - Former Deputy Attorney General of Israel, who has written extensively about the relationship between Halachah and secular law.
Rama - Acronym for Rav Moshe Isserles. He authored glosses to the Shulchan Aruch, most of which are considered authoritative by Ashkenazic Jewry. He served as Rav in Cracow, Poland and wrote other works such as the Darchei Moshe commentary to the Tur and responsa.
Rambam - Acronym for Rabbeinu Moshe ben Maimon, also known as Maimonides. He authored a halachic code called the Mishneh Torah, a commentary to the Mishnah (Peirush Hamishnayot), and a philosophical work, Moreh Nevuchim (Guide of the Perplexed). He was born and raised in Spain and later moved to Egypt (ca. 1135 -1204).
Ramban - Acronym for Rabbeinu Moshe ben Nachman, also known as Nachmanides. He authored major commentaries to the Torah and Talmud. He lived in Spain and Israel (1194 -1270).
Ran - Acronym for Rabbeinu Nissim, who authored a commentary to the Talmud (ca. 1290 - 1375).
Raphael, Rav Shilo - Late dayan on the Jerusalem beit din (d. 1994).
Rashba - Acronym for Rabbeinu Shlomo ben Avraham Aderet, who served as Rav of Barcelona, Spain, and authored a commentary to the Talmud, numerous responsa and Torat Habayit (1235 - 1310).
Rashbam - Acronym for Rabbeinu Shlomo ben Meir. He authored a commentary to the Torah and certain tractates of the Talmud. He was the grandson of Rashi and the older brother of Rabbeinu Tam and lived in France (ca. 1085 - 1174).
Rashi - Acronym for Rabbeinu Shlomo Yitzchaki, author of the premier commentaries to the Bible and the Talmud, who lived in Troyes, France (1040 - 1105).
Rav Pe'alim - Responsa of Rav Yosef Chaim of 19th-century Baghdad. He also wrote Ben Ish Chai.
Reflections of the Rav - Rav Abraham Besdin’s compilation of lectures by Rav Yosef Dov Soloveitchik. See Soloveitchik, Rav Yosef Dov.
Reiss, Rav Yonah - Director of the Beth Din of America, a beit din affiliated with the Rabbinical Council of America and the Orthodox Union.
Ri - Acronym for Rabbeinu Yitzchak, 12th-century Tosafist and nephew of Rabbeinu Tam.
Rif - Acronym for Rabbeinu Yitzchak al-Fasi of Fez, Morocco, who wrote an abridged version of the Talmud that elucidates the Talmud and issues rulings regarding matters disputed in the Talmud (1013 - 1103).
Rishonim - Great rabbinical authorities of the 11th century to the 15th century.
Ritva - Acronym for Rabbeinu Yom Tov ben Avraham ibn Asevilli who wrote a commentary to the Talmud and lived in Spain during the 14th century.
Rivash - Acronym for Rabbeinu Yitzchak ben Sheishet who authored many responsa. He was born in Barcelona in 1326 and died in Algiers in 1408.
Rosh - Acronym for Rabbeinu Asher ben Yechiel, who lived in Germany and Spain. He wrote a halachic commentary to the Talmud and responsa and edited an edition of Tosafot known as Tosafot Harosh (ca. 1250 - 1327).
Rozen, Rav Yisrael - Director of the Zomet Institute (which deals with issues of Torah and science and operating the State of Israel according to Halachah) in Alon Shevut, Israel and an editor of Techumin.
Salant, Rav Shmuel - Rav of Jerusalem, Israel (1816 - 1909).
Sam Chayei - Responsa (printed in 1746) of Rav Chaim Asael. Born 1650 in Salonika; moved in 1690 to Jerusalem; became emissary to Turkey in 1704. Died in Smyrna ca. 1707.
Schachter, Rav Hershel - Rosh Kollel of Yeshiva University and author of B'ikvei Hatzon, Eretz Hatzvi, and Nefesh Harav.
Schneersohn, Rav Shalom Baer - The Lubavitcher Rebbe from 1866-1920, known to Chassidim as “The Rebbe Rashab.”
Schwartz, Rav Gedalia - Av Beit Din of the Beth Din of America (the beit din of the Orthodox Union and the Rabbinical Council of America).
Seder Hadin - Discussion of the workings of Israeli rabbinical courts by Professor Eliav Shochetman Dean of Sha’arei Mishpat College (Law School) and Professor Emeritus of Jewish Law at Hebrew University, Jerusalem.
Sefer Hachinuch - Enumeration and discussion of the 613 mitzvot written in the 13th century by an unknown author (attributed by some to the Ra'ah, Rabbeinu Aharon Halevi).
Sefer Hayashar - Responsa and insights to the Gemara of Rabbeinu Tam. See Rabbeinu Tam.
Sefer Hayovel Larav Yosef Dov Halevi Soloveitchik - A collection of articles written in honor of Rav Yosef Dov Soloveitchik. See Soloveitchik, Rav Yosef Dov
Seforno - Commentary to the Torah authored by Rav Ovadia Seforno of Italy (1470 - 1550).
Sema - Acronym for Sefer Me'irat Einayim, commentary of the Choshen Mishpat section of Shulchan Aruch by Rav Yehoshua Falk (Poland, 1555-1614).
Semag - Acronym for the Sefer Mitzvot Gadol, written by Rav Moshe ben Yaakov of Coucy, France, in the 13th century.
Semak - Acronym for the Sefer Mitzvot Katan, written by Rav Yitzchak ben Yosef of Corbeil, France (d. 1280).
Senderovic, Rav Mendel - Av Beit Din and Rosh Kollel in Milwaukee, WI.
Seridei Eish - Responsa of Rav Yechiel Yaakov Weinberg (1885 - 1966), Rav in Montreux, Switzerland after World War II.
Shaagat Aryeh - Responsa of Rav Aryeh Leib Gunzberg (1695-1785). Born in Lithuania, he served as a Rav in Minsk, Volozhin, and Metz. He also authored Turei Even and Gevurot Ari on the Talmud.
Shaar Hatziyun - Footnotes to the Mishnah Berurah.
Shaarei Deah - Responsa of Rav Chaim Yehudah Leib, Rav in Brody (19th century).
Shaarei Ezra - Responsa of Rav Ezra Basri, Sephardic dayan in Jerusalem, Israel.
Shaarei Tzedek - Collection of essays on topics of Jewish monetary law, based on presentations from an annual conference (edited by Rav Ratzon Arusi).
Shach - Acronym for Siftei Kohen, the premier commentary to the Yoreh Deah and Choshen Mishpat sections of the Shulchan Aruch, authored by Rav Shabtai Hakohen of Vilna, Lithuania (1622 - 1663).
Shafran, Rav Yigal - Head of the Israeli Chief Rabbinate’s medical ethics department, who has written and lectured extensively about medical ethics.
Shapira, Rav Avraham - Rosh Yeshiva of Yeshivat Merkaz Harav, who served as Israel's Ashkenazic Chief Rabbi from 1983 to 1992, and resides in Jerusalem.
Sh’eilat David - Responsa of Rav David Friedman (1828 - 1915) of Karlin.
Sh’eilat Yaavetz - Responsa of Rav Yaakov Emden (1697 - 1776), who lived in Emden (western Germany). He published responsa and other halachic works.
Sheivet Halevi - Responsa of Rav Shmuel Wosner, dayan in the Zichron Meir neighborhood of Bnei Brak and Rosh Yeshivat Chachmei Lublin. His students summarized his lectures on the laws of nidah and printed them under the title Shiurei Sheivet Halevi.
Sheivet Miy’hudah - Responsa of Rav Isser Yehudah Unterman, former Ashkenazic Chief Rabbi of Israel (1886 – 1976).
Shemesh Umagein - Responsa of Rav Shalom Messas, longtime Sephardic Chief Rabbi of Jerusalem (d. 2003).
Shemirat Shabbat Kehilchatah - A presentation of the laws of Shabbat by Rav Yehoshua Neuwirth, who resides in Jerusalem.
Sherman, Rav Avraham - Member of the Beit Din Hagadol of the Israeli Chief Rabbinate, who resides in Bnei Brak.
Shevut Yaakov - Responsa of Rav Yaakov Reisher, Rav of Prague, Worms and Metz (ca. 1670 - 1733).
Shibolei Haleket - Halachic work by Rabbeinu Tzidkiyahu Harofeh (Italy, 13th century).
Shiur Mikvah - Discussion of the relevant halachic measurements for creating a mikvah by Rav Avraham Chaim Na’eh, who served as a Rav in Jerusalem during the 20th century.
Shiurei Sheivet Halevi - See Sheivet Halevi.
Shochetman, Professor Eliav – Dean of Sha’arei Mishpat College (Law School) and Professor Emeritus of Jewish Law at Hebrew University, Jerusalem.
Sho'eIl Umeishiv - Responsa of Rav Yosef Shaul Nathanson, who served as Rav of Lemberg, Ukraine (1810 -1875).
Shteif, Rav Yonatan - Rav in Budapest, Hungary and Brooklyn, NY (1877 - 1959).
Shulchan Aruch - The authoritative halachic work authored by Rav Yosef Karo of Safed (1488 – 1575), who also authored Kesef Mishneh and Beit Yosef.
Shulchan Aruch Harav - Halachic work written by Rav Shneur Zalman of Liadi (1745 - 1813).
Sidrei Taharah - Discussion of the laws of nidah by Rav Elchanan Ashkenazi (late 18th century).
Singer, Rav Yosef - Rav on the Lower East Side of Manhattan, who served as Rav in Pilzno, Galicia before World War II.
Soloveichik, Rav Ahron - Son of Rav Moshe Soloveitchik who served as a Rosh Yeshiva at Yeshiva University and at Yeshivas Brisk in Chicago (1917 – 2001).
Soloveitchik, Rav Chaim - Succeeded his father (the Beit Halevi) as the Rav of Brisk and authored commentaries to Rambam's Mishneh Torah and parts of the Talmud (1853 - 1918).
Soloveitchik, Rav Moshe - Son of Rav Chaim who served as a Rosh Yeshiva at Yeshiva University (1876 -1941).
Soloveitchik, Rav Yitzchak Zev - Succeeded his father (Rav Chaim) as Rav of Brisk, moved to Jerusalem in 1941, and authored a commentary to Rambam's Mishneh Torah (1886 -1959).
Soloveitchik, Rav Yosef Dov - Great-grandson of the Beit Halevi and son of Rav Moshe who was a Rav in Boston, MA, and the Rosh Yeshiva of Yeshiva University (1903 - 1993). His students refer to him as "the Rav."
SOY Guide to Kashrut - A collection of essays pertaining to the laws of kashrut, published in 1981 by Yeshiva University’s Student Organization of Yeshiva.
Steinberg, Dr. Avraham - Senior Pediatric Neurologist in the Department of Pediatrics at Shaare Zedek Medical Center (in Jerusalem), Clinical Associate Professor in Medical Ethics at The Hebrew University - Hadassah Medical School, and author of the Encyclopedia of Jewish Medical Ethics and many articles about medical ethics. Dr. Steinberg received the Israel Prize for Torah and Talmudic Literature in 1999.
Taharat Habayit - Rav Ovadia Yosef's two-volume work on Hilchot Nidah. It includes an abridged version entitled Taharat Habayit Hakatzar. See Yabia Omer.
Taharat Hamayim - Discussion of hilchot mikva’ot by Rav Nissen Telushkin, a major mid-20th century authority regarding hilchot mikva’ot. He resided in Brooklyn, NY, and played a major role in the building and maintaining of mikva’ot in the United States.
Taharat Yisrael - a brief summary of the laws of family purity by Rav Yechiel Michel Tukachinsky. See Tukachinsky, Rav Yechiel Michel.
Takanot Hadiyun - The Israeli Chief Rabbinate’s guidelines for the conduct of batei din. We cite from their 1993 edition.
Tashbetz - Responsa of Rav Shimon bar Tzemach Duran, a late Sephardic Rishon who served as a dayan in Algeria (1361-1444).
Taz - Acronym for the Turei Zahav, a major commentary to the Shulchan Aruch authored by Rav David Haleivi of Poland (1586 - 1667).
Techukah Leyisrael Al Pi Hatorah - Discussion of laws pertaining to the State of Israel by Rav Yitzchak Herzog. See Heichal Yitzchak.
Techumin - A halachic compendium published annually by the Zomet Institute in Alon Shevut, Israel.
Teitz, Rav Elazar Meyer - Rav of Elizabeth, New Jersey and head of its beit din; son of Rav Pinchas.
Teitz, Rav Pinchas - Rav of Elizabeth, New Jersey (1908-1995).
Tendler, Rav Dr. Moshe David - Rosh Yeshiva and Professor of Biology at Yeshiva University; son-in-law of Rav Moshe Feinstein.
Terumat Hadeshen - Responsa of Rav Yisrael Isserlein of Germany (1390 - 1460).
Teshuvot Vehanhagot - Responsa of Rav Moshe Shternbuch, member of the Eidah Chareidit's Badatz (rabbinical court), who also wrote Mo’adim Uzmanim who resides in Jerusalem.
Torah Sheb’al Peh - Journal of Talmudic and halachic topics, printed by Mossad Harav Kook.
Torah Temimah - Commentary on Talmudic and other Midrashic interpretations of verses in the Torah and Megillot by Rav Baruch Epstein, son of Rav Yechiel Michel Epstein (author of the Aruch Hashulchan).
The Torah U-Madda Journal - A publication of Yeshiva University.
Torat Habayit - Code of laws of nidah, mikva’ot, and kashrut by the Rashba. See Rashba.
Torat Hamedinah - Collection of Rav Shlomo Goren’s essays about the State of Israel. See Goren, Rav Shlomo.
Torat Hashabbat Vehamo’eid - Collection of Rav Shlomo Goren’s essays about Shabbat and the festivals. See Goren, Rav Shlomo.
Tosafot - Talmudic commentaries of the Tosafists, Talmudic scholars in France and Germany in the 12th and 13th centuries.
Tradition - A journal of Orthodox thought published by the Rabbinical Council of America.
Tukachinsky, Rav Yechiel Michel - Rav in Jerusalem who authored the Gesher Hachaim, Eretz Yisrael and Ir Hakodesh V'hamikdash (1872-1955).
Tur - A code of Halachah which served as the prototype of the Shulchan Aruch. It was authored by Rabbeinu Yaakov Baal Haturim, son of the Rosh (ca. 1275 - ca. 1340). He also wrote a commentary to the Torah.
Tzitz Eliezer - Responsa authored by Rav Eliezer Waldenberg. See Waldenberg, Rav Eliezer.
Waldenberg, Rav Eliezer - Member of the Beit Din Hagadol of the Israeli Chief Rabbinate who resides in Jerusalem. He authored responsa (Tzitz Eliezer) and Hilchot Medinah.
Warhaftig, Rav Itamar - Senior lecturer in Jewish law at Bar Ilan University, who serves as an editor of Techumin and who has written extensively about contemporary halachic issues.
Weiss, Rav Asher - Rav of the Ramot neighborhood of Jerusalem and author of Minchat Asher.
Weiss, Rav Yosef - Rosh Yeshiva at Yeshiva University, New York, NY.
Weitzman, Rav Gidon - Head of the English Department of Machon Puah, a Jerusalem institute for issues of fertility and Halachah.
Willig, Rav Mordechai - Rosh Yeshiva at Yeshiva University and Rav of the Young Israel of Riverdale, NY.
Wosner, Rav Shmuel - See Sheivet Halevi.
Yabia Omer - Responsa authored by Rav Ovadia Yosef, Sephardic halachic authority in Jerusalem and former Sephardic Chief Rabbi of Israel. He has also written Teshuvot Yechaveh Daat, Taharat Habayit, Halichot Olam, Livyat Chein, and countless other works.
Yad Ramah - Talmudic commentary of Rabbeinu Meir Halevi.
Yalkut Yosef - Expansive halachic code written by Rav Yitzchak Yosef, Rosh Kollel of Chazon Ovadia and son of Rav Ovadia Yosef.
Yam Shel Shlomo.- A commentary to the Talmud by the Maharshal, acronym for Moreinu Harav Shlomo Luria, who also authored responsa.
Yaskil Avdi - Responsa of Rav Ovadia Hadayah, Sephardic halachic authority and member of the Israeli Chief Rabbinate’s Supreme Rabbinical Court (1890 - 1969).
Yechaveh Daat - Collection of brief responsa authored by Rav Ovadia Yosef. See Yabia Omer.
Yerushalmi - The Jerusalem Talmud, redacted in northern Israel sometime between 350 and 410.
Yeshu’ot Yaakov - Commentary to Shulchan Aruch by Rav Yaakov Ornstein, Rav in Lemberg (d. 1839).
Yeshurun - Torah journal printed in New York starting in 1996.
Yesodei Yeshurun - Discussion of laws of Shabbat and Yom Tov by Rav Gedalia Felder who resided in Toronto, Canada (d. 1992).
Yisraeli, Rav Shaul - Rosh Yeshivat Merkaz Harav, Rosh Kollel of Eretz Chemdah, and member of the Israeli Chief Rabbinate's Beit Din Hagadol; author of Eretz Chemdah, Chavat Binyamin, and other works (d. 1995).
Yoreh Deah - One of the four sections of the Shulchan Aruch, which discusses the laws of kashrut, family purity, mourning, and other laws.
Yosef, Rav Ovadia - see Yabia Omer.
Zekan Aharon - Responsa of Rav Aharon Walkin, Lithuanian Rav who was murdered in the Holocaust (1865-1942).
Zichron Yehudah - Responsa of Rabbeinu Yehudah, son of the Rosh. He was born in Germany in 1270, died in Spain in 1349, and headed the beit din in Toledo.
Appendix
Reprinted with permission from the Rabbinical Council of America.
6 Av, 5761
Dear President Bush:
We write to you on behalf of this nation's largest Orthodox Jewish synagogue umbrella organization and Orthodox Jewish rabbinical organization with regard to a serious matter you are currently considering -- whether to permit federal funds to support embryonic stem cell research. On the basis of consultations with leading rabbinic authorities in our community as well as with scientists sensitive to traditional Jewish values, we write to express our support for federal funding for embryonic stem cell research to be conducted under carefully crafted and well-monitored guidelines.
As you no doubt appreciate, the decision you face is one with complex moral dimensions. On the one hand scientific research indicates that there is great life-saving potential in embryonic stem cell research, potential that warrants federal support. On the other hand, we must be vigilant against any erosion of the value that American society affords to human life, including potential human life.
Our Torah tradition places great value upon human life; we are taught in the opening chapters of Genesis that each human was created in G-d's very image. The potential to save and heal human lives is an integral part of valuing human life from the traditional Jewish perspective. Moreover, our rabbinic authorities inform us that an isolated fertilized egg does not enjoy the full status of person-hood and its attendant protections. Thus, if embryonic stem cell research can help us preserve and heal humans with greater success, and does not require or encourage the destruction of life in the process, it ought to be pursued.
Nevertheless, we must emphasize, that research on embryonic stem cells must be conducted under careful guidelines. Critical elements of these guidelines, from our perspective, relate to where the embryonic stem cells to be researched upon are taken from. We believe it is entirely appropriate to utilize for this research existing embryos, such as those created for IVF purposes that would otherwise be discarded but for this research. We think it another matter to create embryos ab initio for the sole purpose of conducting this form of research.
Because of the ethical concerns presented by embryonic stem cell research and the reports of potentially garnering similar benefits from research on adult stem cells, we would urge you to simultaneously increase funding for adult stem cell research.
Other elements of an ethically sensitive oversight regime would include a rigorous informed consent process from future IVF procedure participants, a fully funded and empowered oversight body comprised of scientists and bio-ethicists, and periodic reviews by relevant Executive branch agencies and congressional committees.
We hope these views are useful to you in your deliberations over this critical issue of public policy. We wish you the paramount blessing for political leaders that the Jewish tradition offers - wisdom.
Sincerely,
Harvey Blitz, President, UOJCA
Rabbi Herschel Billet, President, RCA
Nathan Diament, Director of Public Policy, UOJCA
Rabbi Steven Dworken, Exec. Vice President, RCA