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Walking in IsraelWhat are the parameters of the idea that every 4 amot one walks in Eretz Yisrael is a mitzva? Is it only to new places? Does one have to walk on foot?
We have good news and bad news. The bad news is that we were not able to find any classical or semi-classical sources that there is a mitzva for every 4 amot one walks in Israel. The good news is that there are bigger and better ways to get that effect, which those of us who live here do naturally. On to the sources!
The gemara (end of Ketubot) attributes many wonderful benefits to Eretz Yisrael. One who lives there “dwells without sin” (Ketubot 111a). Being buried there is like “being buried under the altar” (ibid.). Rabbi Yochanan adds: “Whoever walks 4 amot in Eretz Yisrael is assured to be one who receives the World to Come.” Thus, walking in Eretz Yisrael has a powerful spiritual merit!
The Rambam (Melachim 5:11) paraphrases this gemara. However, his language indicates that this source may not be relevant to your question. The Rambam starts with the great merit of living in Eretz Yisrael and then continues: “… even if one walked in it 4 amot, he will merit the World to Come.” Thus, someone who lived in chutz la’aretz, took one trip to Israel, landed at Ben Gurion, walked a few steps, and took the next plane out gets this merit. He presents it as (obviously) a (significantly) lower fulfillment of connection to the Land than living there. The question is: if one is living in Israel and meriting extreme spiritual benefits (and has already walked hundreds of thousands of amot), does he get an additional mitzva for walking another four?
HaRav Yehuda Shaviv (Techumin (XXIII, p.)) and HaRav Shlomo Aviner (cited in Shut Eretz Yisrael, 44) assume that a tiyul in Eretz Yisrael is a matter of mitzva and between them cite a few sources: the above gemara/Rambam; a letter by HaRav Tzvi Yehuda Kook; and Mishneh Halachot (III:189). The latter source is dealing with a different question. Is it a mitzva for a ben chutz la’aretz to visit Israel? Some prominent sources posit it is not. The Maharit (II:28) says that if one made a neder to visit Eretz Yisrael, it can be nullified according to the rules for a non-mitzva vow, for there is a mitzva to live in Eretz Yisrael, not to visit it. Also, one is allowed to embark on a voyage by sea on Friday only for a mitzva, and there is a difference of opinions if visiting Eretz Yisrael counts (see Magen Avraham 248:15; Mishna Berura 248:28). The mainstream opinion to reconcile the “non-mitzva” sources with the gemara granting importance to even a “4 amot visit” is that it is not a mitzva per se, but it is nonetheless very worthwhile.
So there is a great spiritual jump when one who had no physical connection came and walked in the Land. But there are two ways to learn the gemara regarding one who already has a great connection by living in Israel (or, to a lesser degree, being in the midst of an extended stay). It is possible that walking more furthers it (1000+1>1000). The other approach is that 0 to 1 is a great jump, but that for one who lives every (or most) breathing moment of his life in Israel (and hopefully contributes to its flourishing), caring about a few more steps is missing the point. (Compare to one who wins a huge lottery and cares about the cents at the end of the multi-digit number.) While one can argue that approach #1 is correct, it is hard to claim that the gemara proves it.
Even according to approach #2, traveling in the Land is significant. Appreciating Eretz Yisrael is important (see Ketubot 111a-b) and may even be connected to the mitzva to live in it (Eretz Hemdah I,1). Seeing sacred, beautiful, … parts of the country promotes appreciation, and the more, the better. This is what Rav Tzvi Yehuda and others refer to. But it should make no difference if this enhanced connection/appreciation came on foot, by car, by going somewhere new, repeating an old visit, or thanking Hashem for Israel when you go to bed. The sources do not seem to indicate that walking per se is a mitzva.
The Nature of the Fulfillment of the Mitzva of MezuzaI will be moving into a home that already has mezuzot. If I just leave them there, do I fulfill the mitzva of mezuza, or must I remove and/or replace them? In general, when/how does one fulfill the mitzva: by affixing them, by having them in the house, by kissing them, or by thinking about them?
Much of the material on this topic concerns a statement by the Magen Avraham (19:1). He wonders why no beracha is made when one attaches tzitzit to a relevant garment (i.e., because the mitzva is not complete until one wears the garment), and yet there is a beracha when one attaches a mezuza to a doorpost (i.e., even though the mitzva is living in such a house). His answer is technical – one normally attaches mezuzot when he starts living there, so that he does fulfill the mitzva at that time, whereas one normally attaches the tzitzit before he wears them. So the Magen Avraham assumes that the mitzva is to live in a house that has mezuzot, not to attach the mezuzot to the doorposts. In fact, he says that if one put up the mezuzot before the obligation began, he would recite a beracha of “… commanded us to live in a house that has a mezuza” upon entering the house to live.
One of his indications is the idea that mezuza is “an obligation of the dweller” (Pesachim 4a), in other words that the mitzva is linked not to home ownership but only to living in it, i.e., in a house with mezuzot. R. Akiva Eiger (Shut I:9) apparently agrees, at least mainly, with the Magen Avraham (see Pitchei Teshuva, Yoreh Deah 291:4). He suggests that one who moves to a place where a previous occupant put a mezuza would make a beracha upon entering, as would one who left his own place for a significant amount of time and then returned to it.
Many (strongly) disagree with the Magen Avraham, but this can be for more than one reason. Some object to the beracha’s wording, arguing that one cannot create a non-standard form of the beracha that is not mentioned by Chazal (Birkei Yosef, Orach Chayim 19:2). The Beit Shearim (YD 370) points out that the Magen Avraham is aware that one cannot make the regular beracha (… likvo’ah mezuza), which refers to the action of attaching. He agrees with the Magen Avraham that there is a mitzva fulfillment as long as one lives in the house with a mezuza but claims that the beracha was established for the action that begins the process. (There is much discussion, beyond our scope, among the poskim (see Yabia Omer, VIII, YD27) about the stage at which one can and should attach the mezuza, e.g., as he moves in? when the house is prepared to be lived in? after he moves in?) However, there is close to a consensus (Rav Kook in Da’at Kohen 182 is a notable exception) that, irrespective of the matter of the beracha, the ongoing state of living in a house with proper mezuzot is a or the primary fulfillment of the mitzva.
Therefore, one need not have regrets if he came into a house with pre-existing mezuzot. He has no need to act or make a beracha, just like he need not be disappointed if his house has relatively few doorposts that require mezuzot. Note that generally one who leaves a house in which he attached mezuzot should leave the mezuzot there (Bava Metzia 101b), and we do not find that this is unfortunate because it deprives the new occupant of an action/beracha. That being said, the Aruch Hashulchan (YD 291:2) does allow one who comes into a house with mezuzot to remove and have them checked, which according to some/in certain circumstances makes it proper to make a beracha upon returning them (see ibid. and Living the Halachic Process I, G-5). Yalkut Yosef (Mezuza 92) suggests this; his father (Yabia Omer ibid.) did so regarding a case where one forgot to make a beracha when attaching them.
Thinking about the mezuzot, like thinking about any mitzva, is a nice thing. Some people have the practice of kissing the mezuza to show affection for the mitzva/holy scroll. However, neither of them have anything to do with the fulfillment of the mitzva.
Tying Up the Arba Minim on Yom TovLast year, I forgot to prepare the arba’a minim before Yom Tov and just put them in the koysheklach without tying anything. If this happens again, what can and should I do to prepare them on Yom Tov?
At first glance, your question is answered directly by very basic sources. The Shulchan Aruch (Orach Chayim 651:1, based on Sukka 33b) rules: “If they were not tied together before Yom Tov or [the knot] came apart, it is not possible to tie them with a full knot but rather with an aniva (bow knot).” The Rama (ad loc.) cites an alternative – to wrap the lulav leaf around the three species and then tuck its head underneath. However, we should discuss some other factors about the process, including how koysheklach, used by Ashkenazim, affect the situation.
One question is whether what you did is different and inferior to the normal situation. There is a machloket Tannaim whether there is a full halachic obligation of egged – to tie the minim together (Sukka 33a). According to the opinion that it is required, it must be a halachic knot, the type that is forbidden to make on Shabbat/Yom Tom (ibid. 33b). While we pasken like the opinion that egged is not fully required, it is still a mitzva to have them tied up – in order to “beautify” (=noy) the mitzva (ibid. 33a). The Shulchan Aruch (ibid.) rules that this is normally to be done with a double knot. It is unclear if the Rama (ibid.), who gave the idea of wrapping and tucking, meant this only for when it is done on Yom Tov or it can even be done regularly (see Mishna Berura 651:11).
These opinions correspond to two approaches to what the gemara meant by rejecting the need for egged but urging some level of it due to noy. One approach is that the noy is in having the minim tied up together, the same way practically as egged, just that it is not as crucial. According to this, you ostensibly missed out by not being able to make a knot. The second approach is that there is a different criterion, which is aesthetic, and a halachic knot is not an independent value.
These approaches find expression in the machloket about koysheklach, which developed a few hundred years ago in Ashkenaz lands. There were some, including the Chatam Sofer (Sukka 36b), who say that noy in this context follows halachic grounds of egged, and therefore if the koysheklach are not wound firmly by a halachic knot, they are insufficient. Supporters of koysheklach respond in one of two ways: 1) Since egged is not needed, noy follows aesthetic criteria, according to which koysheklach exceed a simple double knot; 2) Koysheklach contain permanent intricate knots, and it makes no difference whether one tied a knot around the minim or whether the minim were slipped into an existing knot (or set thereof). (See more on the latter distinction in the Harerei Kedem notes to Mikraei Kodesh (Frank), Sukka II, p. 106-108). These questions also relate to the machloket about whether or not it makes a difference if the minim are bound together by one who is obligated in arba’a minim (see Mishna Berura 649:14).
According to the “practical” approach, what you did was fine, if you attached the koysheklach firmly to the lulav, preferably by wrapping or making a bow knot with a lulav leaf. According to the knot approach, what you did was only okay b’dieved.
Another issue is what to do if you did not remember to detach lulav leaves from the lulav before Yom Tov. Although muktzeh for the mitzva does not apply until the lulav has been used (see Mikraei Kodesh (Harari), Arba’a Minim 9:7), there is a machloket whether removing a leaf from a lulav to be used for this purpose is considered like making a kli (see ibid. 24). They certainly should not be cut to size or made into rings before attaching to the lulav on Yom Tov (ibid. 23, ftnt. 65; see Piskei Teshuvot 651:3). Realize that the more important connection is the one that holds the three minim together, whereas the two or three on the lulav are a later idea (Rama ibid.).
Tosefet Yom KippurWhen and how should one accept Yom Kippur?
We wrote (see Living the Halachic Process III, C-4) that there are two or three elements of tosefet Shabbat (adding on to Shabbat). 1) One should cease doing melacha before Shabbat begins; 2) If one accepts Shabbat earlier than required, (at least many elements of) Shabbat starts for him. 3) There (may be) a mitzva to actively accept Shabbat before it begins itself. We demonstrated that while some sources instruct one to actively accept Shabbat somewhat early (i.e., #3), the main opinions and the minhag (at least until relatively recently) are that one need not accept Shabbat orally or by action. It suffices to refrain from doing melacha before sunset. Since then, Orchot Shabbat vol. III came out. Its co-authors discuss the matter (pp. 92-94) and conclude that according to the clear majority of authorities, there is no need for an oral acceptance, although they recommend doing so in deference to minority opinions.
Is Yom Kippur any different in this regard? In some ways, tosefet is more important on Yom Kippur than on Shabbat. The gemara learns tosefet from the fact that the Torah (Vayikra 23:32) refers to the fast of Yom Kippur as being from the 9th of the month in the evening, that it begins while it is still the 9th (Yoma 81b). The Rambam omits tosefet in regard to Shabbat and mentions it only in regard to fasting, not melacha, on Yom Kippur (see Maggid Mishneh, Shvitat Asor 1:6). Nevertheless, the majority of Rishonim assume there is a mitzva from the Torah to refrain from melacha before Shabbat as well.
There are a few ways to accept Yom Kippur. (Ashkenazi) women generally accept an upcoming holy day by lighting candles (Rama, Orach Chayim 263:10). One may, for a good reason, stipulate orally or mentally when lighting the candles, that she does not want to accept Yom Kippur at this point (Shemirat Shabbat K’hilchata 44:14). If she recites Shehecheyanu at that time, it is too strong an acknowledgment of Yom Kippur for her to stipulate (ibid.). A woman who is going to shul can say Shehecheyanu with the tzibbur instead of when lighting candles. (This has other advantages, which are beyond our scope).
One complication with tosefet Yom Kippur is Kol Nidrei. As a rule one should not do hatarat nedarim on Shabbat (Shulchan Aruch, Yoreh Deah 228:3). The Rama indeed instructs us to do Kol Nidrei before Yom Kippur begins (OC 219:1), and we recite Shehecheyanu in shul only after that. But those of us who recite the beautiful prayer called Tefilla Zaka – before Kol Nidrei – have a problem because it includes a statement of accepting Yom Kippur. Actually, the Chayei Adam (II, 144:20) presents Tefilla Zaka as being done after Kol Nidrei, and some suggest leaving out the part of accepting Yom Kippur until later (see Ishei Yisrael 46:(35) in the name of Rav Chaim Kaniefsky). Besides conflicting with the normal practice, a technical problem is that Kol Nidrei is often not finished until right before or even after sunset.
Rav S.Z. Auerbach (cited in Halichot Shlomo, Mo’adim II, p. 391) suggested that one can and presumably does (due to Kol Nidrei) his early acceptance of Yom Kippur with an implied exclusion of the prohibition against hatarat nedarim limiting the acceptance. The sefer Kol Nidrei (83:4) cites Rishonim who say that since there is reason to do hatarat nedarim as Yom Kippur starts, this is a matter of special need, in which case it is permitted to do hatarat nedarim on Shabbat (see Shulchan Aruch ibid.).
We see that one who wants to be machmir in all elements of ushering in Yom Kippur is in a bind. If he wants to follow the opinions to make a clear oral acceptance of Yom Kippur before the end of the day, he raises questions about the propriety of Kol Nidrei. If he wants to be stringent about Kol Nidrei on Yom Kippur, he will be hard-pressed to accept Yom Kippur at a halachically meaningful time. We advise people to follow other good Jews – say Tefilla Zaka and Kol Nidrei at their normal places and rely on the justifications.
Giving an Envelope on Shabbat to Use for DonationsIt is the practice in some shuls to give a self-addressed envelope to one who gets an aliya to mail his pledge after Shabbat. Is the envelope muktzeh?
[We dealt with this question long ago (Vayeitzei 5773). We reasoned that the envelope is a kli shemelachto l'issur (the main purpose is for a forbidden-on-Shabbat use) and that it is also hachana (preparation for after Shabbat), as this is done to facilitate mailing or presenting a check. We suggested solving both problems by putting a d’var Torah in the envelope, thus having it serve for a permitted use. We invited our readership to provide grounds for leniency without the system we proposed, promising to update our readers if this occurs. We now pay our debt, after one reader, who wants anonymity, made a good point.]
The Biur Halacha (to 279:6) cites an Eliya Rabba (279:13) who claims that an apparent kli shemelachto l’isur does not become muktzeh until it has been used. This is based on the rule of hazmana lav milta (merely preparing something for a certain halachically significant purpose does not yet invest the object with its planned status). Tosafot (Shabbat 44b) and the Pri Megadim (Eshel Avraham 279:14) apply this leniency only when there are permitted uses for which it may be used. However, if from the outset it will clearly be used for primarily (perhaps, exclusively) forbidden activities, it is muktzeh.
The exact formulation of the above may be critical for our case. Once the envelope has the shul's address printed on it, it is identified as being intended to mail (presumably, checks) in it. According to several contemporary poskim (see Shemirat Shabbat K'hilchata 20:13, Orchot Shabbat 19:30; Tiltulei Shabbat (Bodner) p. 43), it is forbidden even if there are also permitted uses if it is clear that this is not the main intention. Each of them gives a hammer as an example of being muktzeh even before usage, despite the famous halacha about using a hammer to open nuts. According to the simple reading of Tosafot (and perhaps the Eliya Rabba), only items that have practically no permitted purposes are forbidden before use. One could argue whether our envelope is like a hammer or is more likely to be used for permitted uses. One can argue that since from the shul’s perspective, a major function of the envelope is to hint/remind the aliya recipient that he “owes the shul,” it would be permitted before its first forbidden use. Certainly, we see a more valid halachic claim for leniency in regard to muktzeh than we did five years ago.
What about the problem of hachana? First, the practical parameters of hachana are among the most complicated matters to set. To re-analyze this specific case, we will divide the question into two: Is it hachana for the shul to give the envelope? Is it hachana for the recipient to take it (home)?
There is a long-standing albeit controversial practice to sell aliyot on Shabbat, and we will assume that it is permitted (see Mishna Berura 323:20). As part of the process, it is permitted to create “pledge cards” (without writing) (ibid.). Although these notations will be used only to “enforce” payment of the pledge after Shabbat, it is permitted to not lose the opportunity for this mitzva. Giving out the envelope, as a hint and reminder to donate, is ostensibly not worse than marking those pledge cards.
There is a different reason to allow the recipient to take them. For one, it is not clear if he will use the envelope for donating, as he might not donate or might donate without using the envelope; so, he might use the envelope for something else, perhaps even on Shabbat. Actually, the main reason many take the envelope is to not turn down the shul’s suggestion that he take it, to not insult the shul or look cheap. That has immediate value and thus taking the envelope is not hachana for him either.
In summary, while we still think it is a good and nice idea to put something Shabbat-appropriate in the return envelope given to people after their aliyot, we can justify the practice of giving the envelopes as is.
Interrupting the Meal to Recite Kri’at ShemaWhen I make Shabbat early, I make a break in the meal to recite Kri’at Shema when its time comes. Recently, a guest told me that this is not only unnecessary but one is called a hedyot (a moderately derogatory term) for doing so. Should I change my practice?
The mishna (Shabbat 9b) lists activities in which one must not partake before Mincha; one is eating. (see details in Shulchan Aruch, Orach Chayim 232:2.) However, if he did, he does not stop in the middle for Mincha. There are different versions in the mishna regarding stopping for Kri’at Shema, and the gemara (Shabbat 11a) discusses elements relating to it.
The Shulchan Aruch (OC 235:2) rules that one may not eat a meal within a half hour of the beginning time of the night’s Kri’at Shema, and that if he did, he must stop to recite Kri’at Shema, without its berachot or davening Ma’ariv. The Ran (Rif’s pages, Shabbat 4a) derives this from Sukka 38a, regarding stopping a meal to take a lulav, which distinguishes between Torah-level and Rabbinic mitzvot.
The Ran (ibid.), and Mordechai (Shabbat 224) say that one must stop a meal for Torah mitzvot e.g., Kri’at Shema, only if he started eating improperly (for Rabbinic laws, e.g., tefilla, one may continue even if he started improperly – see Tosafot, Shabbat 9b). This is how the Mishna Berura (325:23) paskens. (These poskim may disagree regarding one who improperly started eating within a half hour of z’man Kri’at Shema, but before its proper actual time.) Your practice of reciting Kri’at Shema during the meal is therefore not required, if you start the meal early enough. (Actually, not everyone who davens at an “early minyan” starts the meal early enough, especially when he davens at a minyan that keeps the same time all summer.)
But is your practice a positive, negative, or “pareve” chumra? There is a concept that one who does something from which he is exempt is called a hedyot. The source is a Yerushalmi on our general topic (Shabbat 1:2), which is probably the logic behind what your guest told you. The Yerushalmi told of rabbanim who were eating together; one stopped to daven Mincha and was criticized by a colleague as above. It is very hard to determine when to apply this rule, as many respected sources have written “one who is machmir shall receive beracha.” Understanding the reason behind the rule, about which there are various opinions, helps. These include: the stringency looks like he is adding on to the Torah; yohara (haughtiness/ holier-than-thou); casting aspersions on those who are not machmir (see more in the entry on this topic in Encyclopedia Talmudit, vol. XXVIII).
It seems to be a small jump from the Yerushalmi to your question. However, some (Sh’vut Yaakov II:30) understand that the Bavli disagrees (see Shabbat 9b). Furthermore, Kri’at Shema, being a Torah-level mitzva is stricter (see above). Indeed, the Rambam (Kri’at Shema 2:6; see also Shulchan Aruch Harav, OC 70:5) says that even when one started eating at a permitted time and is not required to stop for Kri’at Shema, doing so is praiseworthy. The Rambam actually hints at a reason for this ruling, which may help us apply the matter to our case, as he describes one who is concerned that he might not recite Kri’at Shema within its time limit. Therefore, if one recites Kri’at Shema during the meal because he has reason (e.g., based on past experience) for concern that he will not remember after the meal to recite it again, it does not make sense to consider him a hedyot. Many participants in early Shabbat meals forget to recite Kri’at Shema after the meal, so machmir based on such grounds is not inappropriate, even if one is allowed to be optimistic.Since it appears that you thought it was necessary to say Kri’at Shema at the first opportunity, you may discontinue your practice (a minhag b’ta’ut) without hatarat nedarim (see Shulchan Aruch, Yoreh Deah 232:10). If you want to continue, we suggest to state first that you do not want it to become binding.
Lateral Position of Tefillin Shel Rosh – part IIMust the tefillin shel rosh be exactly in the middle of the head, to the extent that some people spend several seconds fixing it in front of a mirror?
[We saw a machloket whether the middle is a line on or (more likely) an area of the head. We will now search for the area’s width/borders.]
The gemara (Eiruvin 95b) provides a clue. The halacha that one who is saving tefillin, found on Shabbat in a place where one may not carry, wears two pairs at a time, is because there is room on the head to wear two tefillin in a halachic manner. How big is this area on the head?
Important sources, both early (see midrash, cited by Tosafot, ad loc.) and more recent (see Bi’ur Halacha to 32:41), indicate that the standard size of tefillin is 2 etzbaot (4 cm. according to Rav Chaim Naeh). It is unclear (see Divrei Yoel ibid.) as to whether this includes the ma’avarta (through which the retzuot go); we will assume not. Thus, the area, from hairline going back is at least 8 cm. Most poskim assume that if you can put two normal size tefillin, you can also put one big tefillin up to their combined size (see Bi’ur Halacha ibid., Divrei Yoel ibid.). Therefore, we can dismiss what a fringe source claims – that the tefillin must fit in within the space in between (not including) the eyes, which is approximately 3 cm. width. According to this, some 95% of today’s tefillin (as well as Chazal’s) are unusable.
In a widely quoted teshuva, the Divrei Chayim (OC II:6) reacted with disdain to the then new idea of using a mirror to get the tefillin centered exactly. He argues that tefillin can be off-center, as there is room for two tefillin also laterally. (Some ask that if he is right, why couldn’t the gemara (ibid.) allow bringing 4 (2*2) tefillin in at a time.) The Tzitz Eliezer (XII:6) agrees with the Divrei Chayim but says that it is best to have the tefillin quite centered, and that the latter objected only to use of a mirror. In the past, men were prohibited to use a mirror, as it was a feminine activity (Shulchan Aruch, Yoreh Deah 156:2), without real need.
If the middle refers to an area and it cannot be limited to the area in between the eyes, what is it? The Magen Giborim (Shiltei Giborim 27:6) suggests that the entire top of the head is okay, as it is parallel to the placement on the arm, but this does not fit well with the language of the Rambam and Shulchan Aruch. If the Beit Yosef is correct, that the bayit is learned from the knot, Rashi by the knot seems to say that anywhere opposite the oref is fine; extending that to the front of the head, this would be most but not all of the width of the top of the head. You get a similar width by taking “between the eyes” literally, but including the width of the eyes. Measuring from the center of one eye to the other gives 6.4 cm. for the average person (# courtesy of my optometrist), which works out reasonably if the 4 etzbaot (see above) includes the ma’avarta, which does not exist on the sides.
Perhaps “between your eyes” is not literal but teaches the general area, in the middle of the head. From there one is to follow normal guidelines – the Torah was not given to angels and does not want us to be OCD. For the average tefillin, that requires them to be approximately centered (no mirror required, just as people don’t use for the knot). If we take the permitted area from front-back and turn it into a square, we also aim for the center but have reasonable leeway with normal-sized tefillin. The same is true if any part of the tefillin’s width needs to be over the exact middle. All these possibilities are consistent with the mainstream approach, including the Tzitz Eliezer (above). Middle – apparently; precise – NO.
In summary only fringe opinions make exactness/mirror necessary for centering tefillin shel rosh. But given that opinions exist and centering is probably laudable, using a mirror is not something to criticize (it is not less important than centering a tie). One who is very careful about centering and lax on how low the tefillin go is misguided.
Lateral Position of Tefillin Shel Rosh – part IMust the tefillin shel rosh be exactly in the middle of the head, to the extent that some people spend several seconds adjusting it in front of a mirror?
We have writing several times that the main issue with the position of tefillin shel rosh is their likelihood to be too far down. But the lateral position also deserves a look. [This week we will focus on classical sources and basic possibilities; next week, we will get into details and practicality.]
The Rambam (Tefillin 4:1) says that the bayit of the shel rosh is in the middle of the front of the head. The Shulchan Aruch (Orach Chayim 27:10, mixing between the language of the Rambam and Tur) describes it more starkly: “The bayit should be lined up to the middle, so that it is opposite ‘between the eyes,’ and the knot should also be in the middle of the oref (posterior neck), and lo yiteh (should not be over (? difficult to translate)), not to this side or to that side.”
The requirement of the middle of the head is actually not obvious. While the Torah writes of tefillin “between the eyes,” the gemara (Menachot 37b) derives that this refers to the top of the head, based on a gezeira shava from the prohibition of a mourner pulling out hair. Tosafot (Kiddushin 36a) asks that accordingly we would expect that tefillin shel rosh would be in the same area – the entire part of the head in which hair grows (Shulchan Aruch, Yoreh Deah 180:9). Yet, they and the Rambam (ibid.) posit that a vestige of the literal idea of “between the eyes” limits the area, with the Rambam reasoning that the middle is above the area of “between the eyes.”
The gemara describes the location of the shel yad and the front-back location of the shel rosh, not its lateral position, so what is the Rambam’s source? The Beit Yosef (OC 27) cites the gemara (Menachot 35b), which says that the back knot “faces the face.” Rashi explains: “opposite the oref (posterior neck) and not the side of the head.” The Beit Yosef surmises that this is the Rambam’s source: just as the knot is in the middle of the back of the head, so too the bayit should be in the middle. He adds in that this is anyway apparent from “between the eyes,” which the Rambam mentions (although he does not usually independently derive halachot from p’sukim).
What does in the middle mean? First, the middle of the head can refer to a line precisely in the middle, but the entire tefillin, which has width, cannot fit on a line! One logical possibility is that it suffices that any part of the bayit is on the line, giving us significant leeway, especially if we have big tefillin. Or it can mean that the middle of the tefillin must be in the middle of the head. But does that mean that the precise middle has to be on the precise middle?! As the Satmar Rebbe points out (Divrei Yoel I:4), we accept the opinion that man is incapable of being precise (see Gittin 78a), even with mirrors, not to mention that tefillin move slightly when we move our head. One possibility is raised by the Shulchan Aruch Harav (addendums to Hilchot Tefillin) based on an inference of a different gemara: two of the four parshiyot must be right of center and two left of center. This requires near perfection (in addition to the fact that the chambers for the parshiyot are not necessarily equidistant – see Mishna Berura 32:182), and it is shocking that earlier sources would not warn us!!
Another approach, which seems to be posited by most of the poskim, is that the middle is an area of the head (similar to the front-back and arm areas) within which the entire tefillin must be resting. It follows that if the tefillin’s edges are within this area, in makes no difference, other than zeh keili v’anveihu (doing mitzvot aesthetically) whether it is centered. The question then begs – how wide is this area? What are its borders? If we know the answer, each person will have to compare that area to the width of his tefillin and determine his leeway (accordingly, the smaller the tefillin, the better).
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Backing Out of a Bad Purchase a Little Late?[Adapted from part of a din Torah.] Reuven sold his car to Shimon (who paid immediately) and was to give the car to Shimon a week later. When Shimon received the car, the air conditioning was not working. Reuven apologized and said that his garage had promised to fix it already and that they would do so within a few days. Shimon wanted to back out, but Reuven refused to return the money, and they started exploring dispute resolution venues. In the meantime, Shimon used the car. After 16 days and aggravation for Shimon, it was fixed. Even though the car now works well enough, Shimon still wants his money back. Does he have a right?
The lack of an air conditioner in a car these days in a hot country is considered a flaw that is grounds for mekach ta’ut (misinformed sale) and bitul mekach (nullification of sale). However, several elements might preclude bitul mekach.
The Rambam (Mechira 15:3) and Shulchan Aruch (Choshen Mishpat 232:3) rule that one is not able to claim bitul mekach due to a flaw if he used the object after discovering it. In this case, Shimon used the car after finding out about the flaw.
On the other hand, we need to look at why using the object precludes bitul mekach. The Rambam (ibid.) explains the halacha as being based on presumed mechila, i.e., if he uses it, apparently he waived his right to return it. This case, though, is apparently different in that he previously stated explicitly that he wants bitul mekach. In fact, the Ritva (Bava Metzia 50b) says that if one grossly overcharged to the extent that the buyer can invoke bitul mekach, he can do so even after using the object, if he previously informed the seller of this intention. The simple explanation is that using the object is an apparent indication of mechila, but a clear statement that he is not mochel makes that indication irrelevant. In this case, Shimon demanded bitul mekach and did not rescind that demand. The Pitchei Teshuva (ibid.) cites a machloket whether the Ritva’s extension of the ability to do bitul mekach applies only to mekach ta’ut due to mischarging (Galia Massechet, CM 10) or even based on flaws (Machaneh Ephrayim, Ona’ah 5), as in our case
Furthermore, the Pitchei Teshuva (CM 232:1) posits that if extenuating circumstances forced the buyer to use the flawed object, he retains the right to back out later. In our case, it is unreasonable to expect Shimon, who already paid for a car and did not have the money returned to buy another, to not use the car. In a case like this, where Reuven permits Shimon to use the car even though he knows Shimon still wants bitul mekach, the Galia Massechet should agree (the analysis of this point is long). He clearly does not mean to be mochel and he clearly is not stealing by using it.
But there is a counter indication. By the time the question reached beit din, there no longer were grounds for mekach ta’ut, as the air conditioner was fixed. Still, this does not make a difference for the following reason. When there is mekach ta’ut without mechila, the sale had never been valid (see Galia Massechet ibid.). Therefore, since there is no agreement or kinyan after the air conditioning was fixed, Shimon does not have to go through with such a cancelled agreement, whatever his reasons are.
Despite the above, we believe that Shimon cannot back out. The Shulchan Aruch (CM 232:5) says that a flaw that can be readily fixed does not nullify a sale; rather, the seller has the right to pay for it to be fixed. The Rama (ad loc.) elaborates on this distinction, but his language creates some confusion. He says that the seller can stave off bitul mekach when the flaw is not in the sales item’s “physical essence” and the item does not lose its normal name. An example in which the seller cannot demand to fix a house is a when it has an insecure wall. Although one could argue the point, we posit that a car that has an air conditioner, just that it needs fixing, is one that the seller has a right to fix in a timely fashion (elaboration is beyond our present scope).
Zimun for a Sephardi, an Ashkenazi, and a KatanI am Ashkenazi. I was eating with a Sephardi and a katan (under bar mitzva). Were we supposed to do a zimun?
We start with the only source I found on the topic, which provides practical (intuitively logical) guidance without explanation. Then we will provide the background and critique the ruling. V’zot Haberacha (p. 132), basing himself on communication with Rav Auerbach, Rav Eliyahu, and Rav Scheinberg, gives the following compromise. Zimun can be done, led only by the Sephardi. If there are nine and a katan, the Ashkenazi should answer the zimun without Hashem’s Name.
The gemara (Berachot 48a) accepts Rav Nachman’s opinion that a child counts toward zimun if he knows to whom we bentch. So rule the Rif, Rambam (Berachot 5:7), and Shulchan Aruch (Orach Chayim 199:10), whether for a zimun of three or of ten. (Only one of the quorum can be a katan – Mishna Berura 199:25). You seem aware that this is the minhag among Sephardim. On the hand, the Rosh (Berachot 7:20) cites and accepts the implication of the Yerushalmi that only youngsters with two pubic hairs (the sign of basic physical maturity) count toward zimun; the Rama (OC 199:10) and Ashkenazi practice accept the Rosh. Indeed, then, we have a conflict between minhagim. In a mixed group, whose minhag should “win out”?
One thing to investigate is: how important is each side’s ruling to them? According to the Sephardi ruling, is there an obligation to do zimun or is it only optional? There is an opinion in the gemara (Berachot 45) that there is an optional zimun when two eat together. However, I did not find any indication in the poskim that a zimun including a child is deficient in any way. Therefore, the indications are that the Sephardi member of the group should feel a need to do zimun, for when a zimun is called for, it is forbidden to bentch without it (Shulchan Aruch, OC 193:1).
Is it forbidden (i.e., for an Ashkenazi) to do zimun which is not required? From the discussion of an optional zimun for two, we see that according to the opinion that it is not optional (which we accept), it is forbidden. What is problematic about a zimun’s words? The Shita Mekubetzet (Berachot 45b) says that even a zimun of three is a mini davar shebekedusha (something that requires ten), making it forbidden without its (reduced) quorum even without uttering Hashem’s Name. The Pnei Yehoshua (Berachot 45b) says that it is a disgrace to call out to a single counterpart to praise Hashem, as it is not sufficiently significant.
Is it better to err on the side of recitation or omission? Note that the stronger indications are that a katan counts for a zimun. The implication of the Mordechai (Berachot 172) and Rama (Darchei Moshe, OC 199:4) is that we refrain from zimun in order to be on the safe side. Thus, out of doubt, one would not do a zimun. So how can the poskim we cited expect an Ashkenazi to risk an improper zimun in order to afford his Sephardi friend a “less important” opportunity?
Apparently, the poskim reason that the main problem with an unwarranted zimun falls on the initiator (i.e., the mezamen). Once the Sephardi asks the Ashkenazi to praise Hashem, answering is less of a problem and actually it is a problem to refuse to praise Him. Using Hashem’s Name makes it beracha-like, which is problematic even without initiating. We can appreciate, then, why the Ashkenazi should neither say the Name as part of ten nor lead the zimun.
This resembles the situation of a Sephardi who calls out Barchu at the end of Monday-Thursday davening in an Ashkenazi shul. The minhag is to answer, probably because once it is reasonable to call it out, how can one not respond. In some ways our case is worse. Regarding Barchu, even when there is not a need, the ten provide a tzura (form) of a proper recitation. In contrast, if a child does not count, the zimun is innately lacking.
In the final analysis, there is logic both to and against the poskim we cited. In the absence of contrary sources or compelling logic, we obviously accept their ruling.
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