ASK THE RABBI

The Shulchan Aruch (Orach Chayim 644:1) describes nl as being done before Hallel. One could have claimed that this is due to time concerns. Although b’di’eved one can fulfill nl from alot hashachar, it, like other mitzvot of daytime, should be done after sunrise (ibid. 652:1). Since it is best to do Shacharit as vatikin, one will be in between Kri’at Shema and Shemoneh Esrei at that point (ibid. 58:1) and cannot stop for other things. However, in 652:1, he explains it positively: the main mitzva of nl is at the time of Hallel. The Mishna Berura (652:4) explains that it is connected to the na’anuim (shaking) done at points within Hallel. (It might therefore be correct not to talk between the beracha on nl and Hallel so that the beracha will go on those na’anuim without interruption (see discussion in Mikraei Kodesh (Frank) Sukkot II:16.)

Acharonim cite the Arizal as saying that one should make the beracha on an earlier nl before shul. However, different presentations stress different elements of the practice. The Shelah, cited by the Magen Avraham (652:3), mentions specifically that it is done in the sukka, and the Seder Hayom (Seder Netilat Lulav) mentions those who would daven at home to maximize the spiritual power the sukka provides for other elements of the day. We do not have insights into the Kabbalistic connection between sukka and lulav, but Talmudic indications of a connection also exist (see Sukka 36b). The Seder Hayom rejects not going to shul but says that if the tzibbur is going slowly and it is already after sunrise, it is good to get nl in early to be diligent. The Bikurei Yaakov (644:1) prefers the Arizal’s approach, also on the grounds of diligence.

Diligence is a two-edged sword, as several Acharonim raise the issue that more common mitzvot should precede less common ones, and Kri’at Shema and tefilla are more regular than nl. This can be another reason to prefer the Shulchan Aruch’s approach to that of the Arizal (Rav Moshe Feinstein, cited in Az Nidberu IV:48; this is also Rav Ovadia’s minhag – see Chazon Ovadia, Sukkot p. 371-6). Different ideas are raised to justify the Arizal’s approach, as lulav might have special sanctity, and doing it in the sukka and/or as early as possible may be worth it.

Some attempt to get the best of both worlds. The Kaf Hachayim (OC 644:3) praises the minhag to have a sukka near shul so people can go to do nl there before Hallel. Ostensibly, those who take the time advantage approach would do best by davening vatikin, as Kri’at Shema is done before it is proper to do nl, and nl will be only a few minutes after its earliest time. Nobody says that these ideas are required.

Let us put this background into practice. Most people have a family minhag, which they should continue to keep under normal circumstances. (The various minhagim do not seem to create lo titgodedu problems.). The minhag to do nl in the sukka is not an absolute obligation. Therefore, if doing so will cause one to be (significantly) late to the minyan he is going to (people should be sensitive to the problems of coming late), he should pass on nl in the sukka. While some time should be given for people to get out their lulav and etrog before Hallel plus a little time for people to perform nl then, it is an unreasonable tircha d’tzibbura to wait for people to go to the shul’s sukka to fulfill the “in sukka during davening” approach. Of course, if a shul has many people with that minhag and decide to make that standard, that is the tzibbur’s prerogative.

For those who do nl in the sukka before shul, the Bikuerei Yaakov (ibid.) instructs that one should do birkat haTorah first. Many cogently argue that this is unnecessary, but on the other hand, one does not lose by doing so. While there is some logic to recite Kri’at Shema first (see above), there is also good reason not to, and I did not find any posek to suggest doing so.

The Rama (Orach Chayim 610:4) cites two minhagim found in Rishonim, regarding white clothes. The Mordechai (Yoma 723) says one should wear clean clothes to resemble angels. The Rama extends this to white clothing for the same reason. He then cites the minhag to wear a kittel, which not only fulfills these two elements, but since it is a major component of burial shrouds, reminds one of the day of death, which helps feel the urgency to do teshuva. The Magen Avraham (610:5) says that the idea of “imitating” angels does not apply to women, but says that the idea of a kittel to remind of death does. We do not seem to have such a practice these days, and whatever the reason for that, we would not suggest it. It is not uncommon, though, for women to wear white. Some say that in lieu of a kittel, white clothes for women can serve at least as a reminder of purity and the whitening of sins (see Minchat Elazar II:63). In any case, there is no reason a woman should avoid white.

The matter of gold has later sources. Rabbi Akiva Eiger (on Shulchan Aruch ibid.) cites a minhag to avoid wearing gold on Yom Kippur because it is reminiscent of the sin of the Golden Calf. Interestingly, he says that it does not apply to women (or levi’im) because they did not participate in that sin. The Mateh Ephrayim (an important work on the laws of Yamim Nora’im, 610:9) reports a minhag to put an atara on the kittel, but says that it should not be of gold, apparently for the same reason. He also says that it applies to women, as while women did not sin, they are still part of Bnei Yisrael who do not want reminders of that sin. On the other hand, he limits the matter of gold to attaching them to things that are related to atonement (see the idea of ein kateigor na’aseh saneigor in Rosh Hashana 26a). He posits that the kittel is related to atonement because the white is reminiscent of the whitening of the sins. The B‘tzel Hachochma (VI:3) thereby rules that it is not a problem to wear a gold watch on these grounds. We certainly assume that the issue is not the color gold but the actual substance (see Kinyan Torah Ba’halacha VI:36).

B’tzel Hachochma says that there could be a different problem with a gold watch, based on a concept mentioned by the Mateh Ehprayim and the Mishna Berura (610:16). This is that one should not wear adornments that he or she wears only on Shabbat and Yom Tov because we are supposed to be under the influence of eimat hadin (fear of the impending judgment). This point raises the complex general issue about Yom Kippur – are we supposed to be in a good, happy mood or not? We cannot resolve that issue clearly in this forum, but the short answer is: “Yes and no.” Some point out that Tosafot (Megilla 31a) says that women do wear special adornments on Yom Kippur. In any case, it would seem that the question is about special types of adornments that one wears only on Shabbat. It is likely that there is not an issue with wearing a suit or dress usually worn on Shabbat.

The classical source on the topic is the Maharil (15^th century, Ashkenaz), based on the Maharam. In contrast to the rabbi who asked him the question, the Maharil (Shut 128) states that the minhag is that an avel does not serve as a chazan on Shabbat and Yom Tov or on Rosh Hashana and Yom Kippur. The Rama (Yoreh Deah 376:4) cites this minhag in regards to Shabbat and Yom Tov and adds on “… even though there is no prohibition in the matter.” The Shach (ad loc. 14) and Pitchei Teshuva (ad loc. 8) posit that the rule is the same for the Yamim Noraim. 

The Meir Netivim (80) posits that there is no problem with an avel being a chazan on special days. What the sources are saying is that as opposed to a regular weekday, when an avel makes a point of being the chazan, the minhag is that they do not make an effort on Shabbat, etc. However, if it works out for the avel to do so, there is no reason to stop him.

However, the great majority of Acharonim understand that we do not allow an avel to be the chazan on these days. The Rama only means that it is not a classic prohibition but a bad idea which we do not choose to allow (see Noda B’Yehuda I, OC 32). The Maharil implies that the problem is that all of these days are happy days (in varying degrees and aspects). It is possible to explain either that it is not appropriate for an avel to expose himself to the happy tefilla as a chazan (Shut Maharam Shick, OC 183) or that the avel is insufficiently capable of giving the tzibbur’s tefilla the level of festivity it deserves (see Zera Emet III, 164).

There is another approach to the reason for the avel not to be chazan on special days. The Pri Megadim (Eshel Avraham 581:4) invokes the idea (see Taz, OC 660:2) that during aveilut, there is an element of din (strict judgment) that hangs over the avel. Therefore, it is unwise for the community to be represented by one who is more likely than usual to attract negative judgment. According to this approach, even if the avel decides that he wants to be chazan, it is appropriate for the tzibbur to refuse. The Pri Megadim raises another ramification of this approach. Although the onset of Rosh Hashana after completion of shiva removes the halachic status of avel from a mourner for a relative other than a parent, the spiritual situation of the effect of din continues until thirty days have passed. Therefore, even such a person should not be a chazan at that point.

The Maharil (ibid.) says that if there is no viable alternative to the avel as chazan, then he is allowed to serve. The biggest difference in practice between different communities is in determining what is and is not an alternative. According to some (see opinions Divrei Sofrim, YD 376:92), it is enough that the chazan serves on a yearly basis so that it not look as if he is being chazan because he is in aveilut. The Afarkasta D’ania (I:156) explains that we don’t want it to look like the deceased is wicked, as others do not need protection on special days. He also suggests that having been chazan once before is enough (once may create chazaka rights – Shaarei Teshuva 581:7). The Mateh Ephrayim (581:24) says that it is permitted as long as the avel is clearly more qualified (on cantorial or religious grounds) to the alternative. If the avel receives payment that is financially significant for him, this is reason for leniency (ibid.).

In a past discussion, about an avel as chazan on Rosh Chodesh, we explored the topic of whose decision it should be to allow the avel to serve as chazan; the findings were not conclusive. This is true here as well, and much depends on the reasons given above. It is best if a decision is made based on consultation between the rabbi and the chazan, and it is best if all involved explore the matter with flexibility and sensitivity. Certainly, a congregant should not make a fuss over the matter (see Meir Netivim ibid.). 

The gemara (Megilla 26b) says that a tashmish kedusha (something that serves holy [scrolls]) is holy and needs geniza when one no longer uses it. One of its examples is a maktara, which Rashi translates as the chest in which a sefer Torah is held. Usually an object must come in direct contact with a sefer Torah to be its tashmish (ibid.). Since a sefer Torah’s parchment rarely touches the aron, why should it be considered a tashmish kedusha? Some explain that it is enough that it happens on rare occasion (see sources in Yabia Omer VIII, OC 19). However, many accept the following distinction. If the tashmish provides kavod for the kedusha, it is a tashmish kedusha; if it is (only) for shemira (protection), it is not a tashmish (Rama, Orach Chayim 154:3 based on Ohr Zarua, Shut 745).    

How does one know if an aron is for shemira or for kavod? The Mor U’ketzia (OC 154) says that if an aron kodesh is built into a wall, it is for shemira; if it is movable, it is for kavod, as the Ohr Zarua seems to indicate. Presumably, an aron does not have to be fancy to be for kavod, as wanting to have the sefer Torah covered is part of its kavod. Rav Ovadia Yosef (Yabia Omer ibid.) cites those who say that, if the parchment never touches the aron kodesh, we need to decide practically whether it is for shemira or kavod. (He leans toward leniency regarding a large aron with a strong lock; your case might be different.) Still the Mishna Berura (154:9) indicates that the standard movable aron is a tashmish kedusha, and this would be our basic assumption regarding the aron you discuss (see also Tzedaka U’mishpat 15:18-19).

One can make a t’nai (condition) by which kedusha will not take effect on a tashmish kedusha (Shulchan Aruch ibid. 8). Can one entertain leniency by assuming that this is what happened before this abandoned aron kodesh was used? Actually, even if one makes a condition, the object does not lose all special status. The Mishna Berura (154:34) says that while one may use it for mundane things, he many not disgrace it. We find a machloket regarding objects used in a mitzva (e.g., tzitzit), which do not require geniza (Megilla 26b). The Shulchan Aruch (OC 21:1) allows throwing them in the garbage, but the Rama (ad loc.) is somewhat more stringent (ad loc.). The halachic situation would be similar according to the lenient opinions/cases discussed above.

While we cannot exhaust all the cases and analyses, we will provide some suggestions in order of halachic preferability. The obvious suggestions are to try to find someone to use the aron for a sefer Torah or find the owner and ask him to take it.

Geniza is certainly a respectful solution without problems. If the aron is going to be permanently “retired,” it is permitted to respectfully separate the pieces of wood, so it takes less space.

Many poskim permit using an aron for storing regular sifrei kodesh. The Taz (OC 154:7) says that while there is a rule that one may not lower the level of sanctity of the use of a holy object (Megilla 25b), we prefer a lower usage related to sanctity to geniza. While the Taz’s opinion has to fend off several questions, many support it regarding an object that only serves an object of sanctity (see Yabia Omer ibid.). In a case like ours, where there are other grounds for leniency, this is a good option.

If one nominally sells the aron and uses the small amount of proceeds to adorn a sefer Torah, many posit the aron loses its kedusha status (see Shulchan Aruch, OC 153:9; Orach Mishpat 34; Tzitz Eliezer VII:7). The buyer should just be careful not to disgrace it (see Shulchan Aruch ibid.). It is questionable whether putting it in the garbage is a disgrace, and wrapping it first improves matters. Doing that without first selling it is a last resort one should try to avoid.

Indeed, it is important to either know Al Hamichya very well or have access to its text in writing. But everyone makes mistakes sometimes, so let us see whether leaving out the words “al ha’aretz” (the Land) invalidates the beracha.  

Al Hamichya’s generic term is Me’ein Shalosh, which also covers the beracha acharona on prominent fruits of Eretz Yisrael and wine. The term means “similar to the three,” i.e., the three (main) berachot of Birkat Hamazon. A baraita (Berachot 48b) derives from the pasuk about Birkat Hamazon that the three berachot need to cover three elements: the food Hashem gives us; the Land He has given us; Jerusalem, for whose rebuilding we pray. Me’ein Shalosh, the abridged Birkat Hamazon, also includes these elements, with overlapping language. In Birkat Hamazon, if one missed an entire beracha or even a crucial element of one, he needs to repeat Birkat Hamazon (Shulchan Aruch, Orach Chayim 188:3-4; see Mishna Berura 188:8). Does the same apply to your omission of Eretz Yisrael in Me’ein Shalosh?

The first thing to note is that it is likely that you referred to Eretz Yisrael earlier in the beracha (eretz chemdah tova u’rechava sheratzita …). Me’ein Shalosh is one of the berachot that ends with a short beracha that encapsules the whole beracha (see Berachot 11a). Since the Land is a focal point of the pasuk, of Birkat Hamazon, and of Me’ein Shalosh, it makes sense that if it is missing, the beracha is invalid. In general, the end of the beracha is critical, and very possibly more so than the rest of the beracha (the matter is complex – see Berachot 12a; Shulchan Aruch, OC 59:2 and Bi’ur Halacha ad loc.). In this case, it may also help that right before the end of the beracha we say “nevarechecha aleha …,” blessing over the Land. Realize also that while there is a beracha dedicated to Yerushalayim, it is not found at the end. In fact, it is problematic to end off a beracha on more than one theme. The gemara (Berachot 49a) therefore connects the Land and the food by saying that the land produces the food. Therefore, it should not be surprising if b’di’eved, leaving out “al ha’aretz” would not invalidate the beracha.

Indeed, the Magen Avraham says (208:17; the Mishna Berura 208:55 and others agree) that if one does not mention the Land at the end, he is yotzei. His proof is from Tosafot (Berachot 44a), who deals with two versions of the ending of Me’ein Shalosh for wine: some mention “gefen” and “pri hagefen” and others mention “ha’aretz” and “pri hagefen.” The Magen Avraham infers that the question is which is better, but that the first version would certainly be valid b’di’eved. It is possible to claim that he only refers to Me’ein Shalosh on wine, but most understand him to be talking generally (see V’ten Beracha 20:(56)).

It is likely that these lenient opinions are based on the fact that the Land was already mentioned. However, one can argue that, b’di’eved, Eretz Yisrael can be left out totally. The Shulchan Aruch (ibid. 17) says that if one recited the first beracha of Birkat Hamazon instead of Me’ein Shalosh for wine or dates (which are filling), he fulfilled his obligation. Since that beracha makes no mention of the Land whatsoever, we seem to see that it is not that critical to the beracha acharona. The Bi’ur Halacha (ad loc.) says that this is more understandable if Me’ein Shalosh is only a Rabbinically mandated beracha. On the other hand, the Chazon Ish (OC 34:4) says that what would work for a proper first beracha of Birkat Hamazon would not work for an improperly recited Me’ein Shalosh that omitted the Land or Yerushalayim (presumably he would agree with the Magen Avraham as presented above).

It is unclear whether this question is theoretical or practical. In any case, our answer is general.

The Torah laws of inheritance are set monetary rights that are not affected by the righteousness or sins of inheritors. In that way, it resembles the fact that the Torah does not confiscate a sinner’s property. On the other hand, a person is capable of taking steps during his lifetime to effectively obviate inheritance laws. See our survey of some details in Living the Halachic Process IV, I-9.

The main question is whether it is proper to exclude an inheritor due to his moral level. Rashbag (Bava Batra 133b) says that it is a positive thing for a father to transfer his assets to others if his sons act improperly. However, the gemara concludes that others disagree and cites Shmuel’s statement that it is wrong to transfer one’s property even from a “bad son” to a “good son.” Shmuel goes beyond Rashbag, as presented. He rejects not only giving to a non-inheritor but even to one son at the expense of another and states that neither the badness of one inheritor nor the goodness of another is a satisfactory reason. The Shulchan Aruch (CM 282:1) paskens like Shmuel.

There is discussion as to whether this rule is a Torah-level law (difficult), a Rabbinic binding law, or Rabbinical guidance (see S’dei Chemed, vo. IV, p. 27). One reason given for it is that we cannot know what will be with the offspring down the line (Ketubot 53a). The Tur (Choshen Mishpat 282) gives another reason – it causes jealousy and ill-feeling within the family. These are apparently not the primary reasons behind the halacha but the secondary ones, as we will explain. On the basic level, the Torah says that the proper thing is to give as the Torah prescribes (Aruch Hashulchan, CM 282:2). Inheritance is one of the tools of Divine Providence as to a person’s financial resources. A person may ask: “If I can halachically and (ostensibly) morally devise systems that seem more equitable in this specific case than Hashem’s general system, shouldn’t I do that?” The answers are: you cannot know what is truly equitable, as Hashem knows what will happen down the line, and you do not; you have to consider the negative of your plan (i.e., jealousy).

Poskim discuss different cases where it is arguable that the indications for “playing favorites” may be compelling. There is a machloket whether the halacha applies to one whose behavior and the way he raises his children is antithetical to Torah Judaism (see Pitchei Choshen, Yerusha 4:(4)). It is not simple if one must give a full inheritance to one who mistreats his parents (Rambam, Nachalot 6:11 seems to indicate that he should still receive) or tried to oust his siblings from inheritance (see S’dei Chemed, IV p. 34). There is also a machloket if he can keep everyone as an inheritor and only give more to one than to another (see Rashbam, Bava Batra ibid.; Sdei Chemed, IV p. 33).

While the Rambam (ibid. 13) urges to give children equal financial treatment throughout life and the gemara (Ketubot 53a) indicates that large gifts to one of the children during his lifetime could be wrong, one must put things in perspective. One may use his money during to his lifetime for any reasonable need, desire, or mitzva cause, as long as it is not exaggerated in a way that fundamentally alters inheritance (see our column, Mishpatim 5779). Therefore, a parent may give somewhat more to some children based on need. He can also earmark money in a way that benefits those with similar values to the parents (e.g., pay for grandchildren’s day school education), and if a child chooses not to take advantage of such resources (e.g., sends to public school) that is his decision.

Before we get to the excellent conceptual question, we must briefly raise some points that can, under certain circumstances, make the question moot in this scenario.

First, purchasing the house and taking the gold are halachically unrelated. Generally, the movable objects within a house are not sold along with the house. So, if between selling the house and vacating it, Reuven found and took the coins, Shimon could not have complaints or void the sale, as the house was given over as stipulated. Similarly, if Reuven did not take the money and finds out later, he can (try to – see below) complain about the money, as it was not included in the sale.      

Secondly, it is far from clear that Reuven owns the gold coins. If he does not know about them, he apparently did not put them there. Whoever did, or his inheritor, is likely still the owner, and Shimon might have to return them, not keep them. Even if the money became ownerless, if it is hidden in a manner that Reuven was likely to never find it, he did not acquire the treasure with the house. Thus, Shimon is like one who knows where an ancient treasure is found and waits for others to leave the area and then digs it up. He would not be taking Reuven’s coins. See further details and sources in Living the Halachic Process, III, I-16.

So, we will present the fundamental question with a different scenario. A petroleum exploration company discovered vast deposits in a certain region and sent people to secretly buy up as much land as possible from unknowing sellers.

There are generally two grounds to void a sale after the fact. 1. Mekach ta’ut – the object was flawed in such a way that we can assume that the buyer would not have agreed to the purchase had he known. 2. Ona’ah (mispricing) – while the sides would have agreed to the sale, the price was far enough from the going rate to make it grossly unfair to one side.

The gemara (Ketubot 97a) tells of people who sold real estate to buy grain during a famine, without knowing that a large shipment was about to arrive. Rav Nachman said that they could back out of the sales because it was based on a mistake about grain’s availability. Kinyan Torah Bahalacha (I:14) applies this concept to a case of one who sold land that had been slated for agriculture when a governmental decision to allow home building had been made but not publicized. He says that if the seller would not have sold it had he known, he can back out. If he would have sold it anyway but at a much higher price, then we get into the issue that the laws of ona’ah do not generally apply to real estate (Shulchan Aruch, Choshen Mishpat 227:29). On the other hand, the Rama (ad loc.) states that if the price was double (or half) of the going rate, the laws do apply. Also, according to most poskim, although the laws of ona’ah (returning money, nulling sales) do not apply to real estate, there is still a prohibition to buy or sell at an unfair price (R. Akiva Eiger ad loc. based on Ramban; S’ma 227:51).

Certain poskim raise other distinctions. The general rule is that proper pricing follows what is prevalent at the time and place involved (see Pitchei Choshen, Ona’ah 11:7). The Imrei Yosher (II, 155) says that if information changes the price, it depends if it is known to a majority of the population. Also, the gemara (ibid.) indicates that there is a difference between a situation that is about to be revealed and one that may remain unknown for an indefinite amount of time. The Kesef Hakodashim (CM 227:(9)) posits that even when a situation is about to be known, that only makes a difference when the issue is lack of interest in the transaction had the information been known. If, though, it is about price propriety, the going rate at that time/place based on the publicly available information is the determinant.  

Emailing and other forms of electronic communication have two broad purposes – social interaction; technical/business-related. Each can be a problem before davening, but their parameters differ somewhat. We will deal with them separately before touching on “policy.” (We leave out the important issue of such activity causing one to be late for tefilla.)

The gemara (Berachot 14a) forbids greeting people with “Shalom” before Shacharit but clarifies that the problem is when you go to another’s place to greet. Rashi (ad loc.; also, Shulchan Aruch, Orach Chayim 89:2) describes the permitted case as “meeting him along the way.” Contemporary Acharonim discuss, in this context, calling by phone. Ishei Yisrael 13:(40) cites Rav B. Stern and Az Nidberu, who say that this is not like going to another’s house. Rav Elyashiv (P’ninei Tefilla, p. 59) considers it like going to his house, which makes it forbidden if the call’s purpose was the greeting. It likely depends if one views the problem as giving a special standing to your friend (before giving to Hashem) by going to his house to greet him or that initiating greetings is a problem. (See also our Ask the Rabbi, Vayishlach 5779). Rav Melamed’s compromise, that it is permitted when there is a real need, is logical.

Some electronic communication has advantages over a phone – specifically, those where one does not engage in direct conversation, giving a person prominence, but leaves a message for him/them to see at some time. Also, for written messages, halacha does not always equate writing with speaking (also, beyond our scope). Responding to a message is arguably like responding to a greeting, which is permitted (Shulchan Aruch ibid.). However, there is a difference because, as opposed to normal greeting, it is usually unnecessary to answer messages immediately (i.e., before davening). In short, this element is not a major problem, especially if one first says Birchot Hashachar and avoids the word “Shalom.”

Personal needs: One must not “deal with his needs” before Shacharit (ibid. 3), which some of the activity in question may be. If needed for a mitzva (e.g., helping parents), this is “Hashem’s needs” and permitted (Mishna Berura 89:36). How major an undertaking is considered “dealing with needs” (or melacha, which poskim discuss – see Tosafot, Berachot 5b)? The Eshel Avraham (Butchatch, to 89:3) permits simple things one may do on Chol Hamo’ed. The Shulchan Aruch (ibid. 2) assumes one may “go to see some eisek”; the Mishna Berura clarifies: “to see but not to be really involved.” Tefilla K’hilchata (6:(36)) cites Rav S.Z. Auerbach as permitting a quick look at a newspaper or throwing clothes into a washing machine. A quick session with an electronic communication tool to take in some information or send out an instruction to a colleague, etc. need not be forbidden on these grounds. Steps to keep the process short are important (see Mishna Berura 89:16).

Personal Policy: The following is clear from various halachot (see OC 89 & 93). When one wakes up, he should focus on encountering Hashem at Shacharit. Things that show that a different priority, misdirect his mind frame, or might make him forget, unduly delay, or rush his tefilla are against the spirit and/or letter of the law. Initiating unnecessary interaction before davening is far from ideal for the average person. Many people are involved in pressing matters that can change overnight and some “cannot wait” until after davening. Doing the minimum necessary is the proper thing. Some people are regrettably so worried/curious before “checking in” that it hinders their kavana. But many are unnecessarily and unhealthily attached to their devices and refuse to go a waking hour off social media, which sometimes includes during davening. Avoiding such devices until after davening is part of weaning themselves or taking steps not to deteriorate and is a great step in their avodat Hashem and personal wellbeing.

Dedicated in memory of Marc Weinberg.

We will have to understand the laws of enunciation of Kri’at Shema to deal with your scientific revelation (to people like me, who were not aware). There is a machloket among Tannaim about whether Kri’at Shema must include sound that is audible to one’s own ear (Berachot 15a). We rule like Rabbanan’s middle approach in between the stringent Rabbi Yossi and lenient Rabbi Meir: L’chatchila one should recite Kri’at Shema audibly, but b’di’eved he fulfills the mitzva even if he did not, as long as he moved his mouth, lips, and tongue (Shulchan Aruch, Orach Chayim 62:3; the same is likely true for davening – see Mishna Berura 101:5).

It turns out scientifically that not all letters can be differentiated in a whisper, and certainly when no sound comes out. Your good question about whispering, which is not a major discussion in halachic sources, applies equally to totally non-audible speech, which is discussed. Since the clear halacha is that one does fulfill the mitzva, the question is only: why? (If there were a halachic difference between whispering and quiet talking, some poskim would have mentioned it.)

It seems implausible that the letters in question are close enough in sound that it does not make a difference if one says s instead of z or v instead of f, since they can create different words with different meanings. The answer is based on the following observation. (Almost) every Jewish subgroup pronounces certain things wrong. For example, Ashkenazim pronounce ayin like alef and chet like chaf. Sephardim do not distinguish between kamatz and patach. Some of these regrettable (see Megilla 24b) inaccuracies can change the meaning. Yet, one with a speech impediment fulfills mitzvot of speech with a theoretically confusing lack of differentiation, and when it is standard for one’s society, it is not considered a problem (see Mishna Berura 53:37).

Why? Hashem knows whether we mean. While thought is not enough (see above), the one only has to enunciate to the extent that he can be expected to based on circumstances (ability, minhag (?)). Hashem can handle homonyms. The same is apparently true of whispering. While one technically cannot tell if someone whispered “zonim” or “sonim,” but Hashem knows what one meant, and since whispering is a legitimate form of speech, the best he can do is enough.

One can ask on this approach: why does Halacha makes instruct us to stress the zayin of “tizkeru,” so as not to sound like tiskeru (Shulchan Aruch, Orach Chayim 61:17) if anyway it is indistinguishable when done inaudibly or with whispering? One can answer by saying that stressing the zayin is only l’chatchila (Mishna Berura 62:1), and vocalizing so the speaker can hear himself, is anyway required l’chatchila. So indeed, if you follow the l’chatchila of vocalizing, stressing the zayin becomes relevant. But this works out only if the l’chatchila of making audible to the ear can be done only through regular speech and not whispering, an opinion I have not found.

The short answer is that you should be doing the hadlakat neirot and not your pre-bat mitzva daughter when your wife is away (Shemirat Shabbat K’hilchata 43:7). Now we will broaden our view of the topic.    

Does a daughter have precedence over her father due to gender? The Shulchan Aruch (Orach Chayim 263:3) explains a wife’s advantage over her husband pragmatically – she is usually at home more, taking care of household chores, and so it is appropriate that she has the higher level of obligation and rights. The Tur (OC 263) cites a midrash that it was a woman (Chava) who “extinguished the light of the world” by causing Adam to sin, and therefore it is women’s job to add special light to the world (see also Mishna Berura 263:11). Regarding the first matter, one can argue either way regarding a daughter vs. father, and it might depend on the household. The second matter probably applies to all females. The book Radiance of Shabbat (p. 7) cites Rav Moshe Feinstein as saying that a father has precedence over an above bat mitzva daughter. I would surmise that the reason is that a husband has greater responsibility for the proper Jewish running of his home than his daughter has. The book goes on that between bar/bat mitzva siblings, a girl has precedence.

The bigger problem with your daughter lighting is the principle that one who is not obligated in a mitzva cannot perform it for one who is obligated (Rosh Hashana 29a). However, it is actually not so simple. First, if the mitzva is not to light the candles but to have the candles lit, then it might not make a difference who lights them. Regarding the mitzva of Chanuka candles, we conclude (Shabbat 23a) that since the beracha is “to light,” then it is the act of lighting that is the mitzva and that the lighting can therefore not be done by someone who lacks mature thought, including a child. The same is likely true for the lighting of Shabbat candles. In the past (Chayei Sarah 5772) we discussed this issue in regard to the question of whether one just has to light with the expectation to benefit from the candles or whether one needs to actually benefit. We reasoned, based on sources, that it is likely that there is a mixture of the two elements – lighting and having a proper Shabbat atmosphere – but that the nature of the mitzva is to light. We mentioned the machloket between the Magen Avraham (263:11) and R. Akiva Eiger (ad loc.) whether when it is too late for a Jew to light the Shabbat candles and she gets a non-Jew to light, a member of the Jewish household makes a beracha (see Shemirat Shabbat K’hilchata 43:(48)). In the final analysis, it is apparent that one would not want someone who is not obligated in the mitzva to light.

Is your daughter obligated? If she is old enough for you to take the question seriously, we assume she is higiah l’chinuch, reached the age at which she can be trained. Indeed, if only such children are available to light, they are obligated Rabbinically to light with a beracha like any other mitzva of the day (and a girl should have precedence over a boy). True, one who is obligated Rabbinically cannot perform a mitzva on behalf of one who is obligated from the Torah (Berachot 20b), but the whole mitzva of lighting is only Rabbinic, so how are you more obligated than your daughter? There is actually a machloket (Shulchan Aruch, OC 675:3) regarding a child of chinuch age lighting Chanuka candles for an adult, as many hold that one who is obligated only Rabbinically for two reasons (the nature of the mitzva; the general nature of the person’s obligations) can do a mitzva on behalf of someone who has only one reason that it is only Rabbinic (e.g., an adult lighting Chanuka candles). We follow the strict opinion (ibid. 689:2; Mishna Berura 675:13).

(When making early Shabbat, be sure not to light before plag hamincha.)