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Trips during the Nine DaysI run a camp for children under bar mitzva during a period that includes the Nine Days. We usually take them on trips off campus once a week. Is it permitted to do so during the Nine Days?
We will address the two main issues regarding activities during the Nine Days and/or the Three Weeks: danger and too much simcha.
Danger: The midrash (Eicha Rabba 1:29) relates the pasuk “All her pursuers caught up with her between the walls” (Eicha 1:3) to the dangers lurking for Jews during the Three Weeks. One of the examples, which the Shulchan Aruch (Orach Chayim 451:18) codifies, is going out alone (at certain times of day). It is hard to apply this concern practically. Since safety should always concern us, what should we add? Generally speaking, certain water activities, e.g., a beach or canoeing, are candidates of things to avoid during the Three Weeks. (We are not dealing with issues of swimming for Ashkenazim throughout the Nine Days, which requires its own discussion – see Rama, OC 551:16.)
Simcha: The mishna (Ta’anit 26b) states that we limit enjoyment from the beginning of the month of Av. Details of what this might entail are scattered throughout Talmudic and post-Talmudic rulings and minhagim. The Shulchan Aruch does not mention trips; the Rama (OC 553:1) opposes tiyulim on Erev Tisha B’Av, implying that it is permitted before that. However, the Rama apparently refers to strolling in simple places, not going to tourist attractions, which barely existed in his time. On the other hand, since nowadays people (especially children on vacation) regularly partake in recreational activities that did not exist hundreds of years ago, we would not forbid every moderately enjoyable activity during the Nine Days.
Given the above, it is not surprising that some sefarim, including Torat Hamoadim (R. David Yosef) mention a prohibition on tiyul only on Erev Tisha B’Av. On the other extreme, some cite Rav Chaim Palagi's (Masa Chaim 4:3) statement that it was decided to not go to gardens, orchards and the coast throughout the Three Weeks. The common approach among contemporary poskim is to forbid (or at least discourage) significant vacationing specifically during the Nine Day. We would put it this way – these days are not the time for the type of recreational activities that one rarely partakes in (see Aseh Lecha Rav II:35; P’ninei Halacha, Zemanim 8:6).
Do these halachot apply to children under bar mitzva but old enough to understand the basics of practices of mourning? Children under bar mitzva are not obligated in the laws of mourning for relatives (Shulchan Aruch, Yoreh Deah 396:3). Yet, the Shulchan Aruch (OC 551:14) says that we do not cut the hair or launder children’s clothes before Tisha B’Av, and the Magen Avraham (ad loc. 38) explains that children of chinuch age are obligated in pre-Tisha B’Av mourning. To reconcile the sources, he posits that we are stricter about communal mourning (see also Igrot Moshe, YD I, 224). The Ktav Sofer (YD 172) says that chinuch does not apply to personal mourning because it is an irregular situation. According to this, since we have been mourning the destruction of the Beit Hamikdash for millennia, this is regular mourning that applies to children (Tal Livracha II:71).
Nevertheless, age can still play a role. First, there is a machloket whether children are restricted throughout the Nine Days/Three Weeks or only during the week of Tisha B’Av (see Mishna Berura 551:82). Also, there is more room for leniency for children in borderline cases. More fundamentally, children need more recreation than adults, and on matters not included in a defined prohibition but of a more subjective nature (i.e., too much simcha), an activity might be appropriate for a child and not for an adult. Nevertheless, it is important to educate children that the Nine Days is a more solemn time, and this should play a role in the choice of activities. So, there should not be trips during the week of Tisha B’Av (not applicable this year), and good judgment should be used throughout the Nine Days.
Toveling which Utensil FirstI made a beracha before toveling several utensils, primarily glass, which I started with. Then I noticed that one of the utensils was metal. Since toveling metal is a Torah obligation and for glass it is Rabbinic, could the beracha on the glass utensil count for metal? Should I have made another beracha on the metal utensil?
Tevilat keilim for the six metals mentioned in the Torah (Bamidbar 31:22) is, according to many, from the Torah (see Beit Yosef, Yoreh Deah 120). For glass, it is indeed Rabbinic (Avoda Zara 75b). Let us work with your assumptions.
There are several halachic discussions about using Rabbinic fulfillments for Torah-level obligations, and we will mention a couple: making Kiddush when it is only Shabbat on a Rabbinic level; a bar mitzva boy doing sefirat haomer for adults when he became bar mitzva in the middle of the omer (see Mikraei Kodesh (Frank) Sukkot II, 13).
However, the issue does not apply here for two reasons. Tevilat Keilim ((Cohen) 9:(22)) points out that even when tevila is on a Torah level, the beracha is only a Rabbinic obligation. Therefore, he argues, the beracha of one doing tevila on glass can be used for one toveling metal. In truth, though, even regarding Birkat Hamazon, one who ate only enough for a Rabbinic obligation can be motzi (when there is a need) one who ate enough for a Torah-level Birkat Hamazon (Shulchan Aruch, Orach Chayim 197:4). Furthermore, in your case, the beracha applies to all of the utensils that were slated for you to tovel, not just the first one (see parallel application of this concept in Shulchan Aruch, YD 19:7). We even find that one can make a beracha directly before something that may not be a mitzva, and it can go on that which follows. An example is that while we do not know which set of tekiot are the correct one, we make the beracha before the first set and it works even if the second or third set is correct.
We can still ask whether there is at least a preference, had you thought of the issue, to have immersed the metal first, right after the beracha. We do find in regard to berachot before food that the gemara (Berachot 41a) brings rules of kedimut (precedence) – which berachot are made first, and which food should be eaten first after a given beracha. Even if one does not follow the proper order, the beracha takes effect (Magen Avraham 211:11), but we do like to do things correctly. Here, though, it is a different type of beracha – not a birkat hanehenin (on benefit, primarily food), but a beracha on a mitzva. So really the question is whether one mitzva has precedence over another.
The gemara (Zevachim 90b) does address order in mitzvot. Tadir (a more common mitzva) has priority over a less common one. Also, mekudash (a more holy mitzva) has precedence over others. What about a mitzva from the Torah over a Rabbinic one? Beit Shamai and Beit Hillel (Berachot 51b) disagree whether the beracha on wine comes before or after the beracha of Kiddush. The Sha’agat Aryeh (22) claims that the fact that pieces of logic including tadir are raised and the matter that Kiddush is essentially a mitzva from the Torah whereas the beracha over wine is not is not raised, shows that that Torah/Rabbinic obligation must not cause kedimut. On the other hand, R. Akiva Eiger (to Orach Chayim 7:1) assumes that being from the Torah is like being mekudash. The P’nei Yeshoshua (Berachot ibid.) also assumes that being from the Torah gives mitzva precedence, and explains that Kiddush over wine is usually only Rabbinic. Yabia Omer (IX, OC 100) bring several others who concur. However, I have not succeeded to find, in our context of tevillat keilim, that the utensil one puts in the mikveh first should be one that is obligated by Torah law.In summary, it might be preferable to tovel the metal utensil first, but this is not clear in the sources, and it certainly does not make a difference after the fact.
Engagement Parties during the Three WeeksIs it permitted to make an engagement party during the Three Weeks (i.e., before Rosh Chodesh Av)?
Many of the halachot of the time before Tisha B’Av are based only on minhag and/or post-Talmudic sources. Engagement parties (in Modern Hebrew, mesibat eirusin) during this period are arguably mentioned in the gemara. The gemara (Yevamot 43a) after listing some prohibitions of the week in which Tisha B’Av falls continues that in the period before this, it is forbidden to marry but permitted to have eirusin without an accompanying seuda (meal). Talmudic eirusin is kiddushin (if you will, the “giving of the ring”) which is the most halachically crucial part of marriage. It is permitted without a meal because it is assumed to not create an atmosphere of enough simcha to be forbidden (see Tur, Orach Chayim 551). The Shulchan Aruch (OC 551:2) codifies these halachot.
The Rama (ad loc.) points out that we are stringent not to get married during the entire Three Weeks, starting with Shiva Asar B’Tammuz. However, Acharonim point out that the minhag was not meant to apply all of the Nine Days’ restrictions to the Three Weeks. In our context, the Mishna Berura (551:19) rules that one may have a seudat eirusin during the first part of the Three Weeks.
Does this permission to make a seudat eirusin apply only to halachic eirusin? The Mishna Berura (ibid. 16) permits a meal of shidduchin, which is what is called in some circles a vort, i.e., the sides sign a contract of monetary and moral obligation to properly prepare for and carry out the wedding. There is a machloket among Acharonim whether that seuda is a mitzva, with the stronger opinion being that it is (see Sha’ar Hatziyun 551:26; see also Dirshu 551:32). One can also discuss which type of engagement party – it is practiced differently in different segments of society and some have more than one party – is the one that counts. While one could argue that this too is more of a mitzva than just having an engagement party (see Rashi, Yevamot 43a), the Mishna Berura’s language fits the following idea. While the element of mitzva sometimes permits even Nine Day prohibitions (see Rama ibid.), a seudat eirusin is permitted during the Three Weeks because it does not reach the bar of a joyous event that should be forbidden (see also Shulchan Aruch, OC 546:1). Therefore, the lower the event’s level, the more likely it is to be permitted.
This, however, takes us to what one may do at the party. Even not in the context of a special party, we do not allow dancing (Magen Avraham 551:10) and music in the Three Weeks. Since, as mentioned, the permissibility of an engagement party is not the mitzva but the lesser festivity, there is no reason to permit these here (see Mishna Berura ibid. 16). Singing without instruments and without dancing is fine. If one has very simple food at the time of the announcement of the engagement, then many poskim allow it even during the Nine Days (Mishna Berura ibid.).The final question is about appropriateness. There is (properly) sensitivity to planning especially happy events during the Three Weeks, even when they are not the type that are outright forbidden. (There need not be as much sensitivity regarding the omer – see Living the Halachic Process V, D-16). Therefore, we would strongly recommend (as is customary) to try to avoid this time for an engagement party or to keep it very simple. (In many cases, even if the principles are not bothered, there are guests who will frown on the matter. Rav E. Melamed actually forbade making such a party out of the house). In circles in which these parties are usually done soon after the announcement or if there is a short engagement, we think it is justified if there is little alternative. The same is true when there are strong familial considerations (e.g., parents traveled from abroad and will not be around later). However, when there is no strong reason to do it during the Three Weeks, the standard Jewish practice is to have such festive events at more appropriate times.
Accidentally Staying on the Bus Longer than EnvisionedWhat is the Halacha in the following scenario? I am on an intercity bus, in which the price depends on how far you go. I fall asleep and miss my stop. Should I go to the driver to pay for the additional distance I will end up going?
Since you present this as a theoretical question (although it can happen) and, certainly it will not be adjudicated, we can discuss this and begin with the fundamental level.
In general, there are three halachic constructs by which to obligate someone to pay another who provided a service for him. One is by means of agreement. On a bus, one who gets on a bus agrees to pay according to the set price list of the company. Usually, one pays already before the bus moves, so the question is settled. In a taxi, for example, where one pays at the end, they implicitly agree (unless they begin negotiations) that the amount to pay is what the meter will show at the destination. However, in this case, you agreed to pay only for the closer, planned location, as you indicated when telling the driver where you were going, paying the lower fare, and receiving a receipt for that trip.
The second issue is that of damage. Consider the following true story I heard. Someone entered a taxi in Jerusalem, asked to go to Petach Tikvah, and fell asleep. He was woken in the city of Petach Tikvah and told the driver he meant Petach Tikvah Street (in Romema, Jerusalem). The passenger cannot argue that he only agreed to a short ride because he irresponsibly (by not saying “Street” and by falling asleep) made the driver waste work time and gas driving to a distant location. (Whether there should be any discount is beyond our scope, as is the question as to what factors (e.g., extenuating circumstances) determine when there is an obligation to pay in such a case of semi-direct “damage” – see P’sak Din 73082 of Eretz Hemdah-Gazit.) This element also does not apply here because the driver and the company presumably lose nothing by the passenger staying on somewhat longer.
Another reason to obligate someone is the benefit he received from the service, even if he never agreed to pay for it (see Rama, Choshen Mishpat 264:4). In this case, it would seem that you would not normally benefit from going farther when you wanted to go to somewhere else closer. Therefore, this would not be grounds for payment either. It would be different if when you woke up after missing your stop and realized that getting off a few stops later would be better than getting off at the very next stop. Then, the additional stop(s) would be considered benefit, under the circumstances that developed, and there would be reason to pay.
Practically, one would have to consider other factors. It is very possible that staying on longer than you told the driver could be a problem of chillul Hashem or “Vehiyitem nekiyim” (not causing people to suspect you of sin – see an example in Rambam, Shekalim 2:10). This can happen either if an inspector comes on or if the driver happens to remember where you said you were getting off and where you actually did. It is also possible that the bus company has a set, perhaps even written, policy for cases of staying on accidentally longer than expected. While it sounds random, it makes sense for the company to have a policy so that people not be able to lie and claim that it was accidental. Anyone who gets on a bus accepts the legal policies of the bus company. This is different from a simple agreement between two people, where neither has an advantage over the other. A company prepares a service with rules (sometimes approved by a government agency); the passenger decides to use the bus – on their terms. On the other hand, the driver might inform you that he believes you and it is not necessary to pay. He probably has authority to forgive (mechila) a small payment of this sort.
In summary, on fundamental grounds, you would not be obligated to pay based on any of the constructs for payment for services. Any obligation would be based on more technical grounds.
Fulfilling Kiddush from One Who Did Not EatIf the person making Kiddush in shul does not eat after Kiddush, is his Kiddush valid?
We must distinguish between a valid Kiddush for the person who made Kiddush and for those who listened to Kiddush and then ate.
We accept Shmuel’s opinion (Pesachim 101a) that Kiddush is valid only in the place of a meal (Shulchan Aruch, Orach Chayim 273:3). Therefore, if Kiddush is made and no one eats, the Kiddush is in vain.
According to the great majority of poskim (see Sha’arei Teshuva 273:7; Pri Megadim, MZ 273:1; Living the Halachic Process II, C:3), if some eat the food required for a seuda and others do not, only those who ate are yotzei with Kiddush. Thus, at first glance, the person making Kiddush was not yotzei. Therefore, although the mekadesh is usually advised to drink a m’lo lugmav (app. 2 ounces) (Shulchan Aruch, OC 271:14), if he will not eat afterward, he must not drink from the wine, if he has not yet made his own Kiddush (Shulchan Aruch ibid. 4). On the other, if he is willing to drink a revi’it (a little more than 3 oz.), this counts as his meal according to most authorities (see Shulchan Aruch ibid. 5; Mishna Berura 273:22, 27).
In certain contexts, it is common for the one making Kiddush to not eat anything. For example, a rabbi at a hospital may go from ward to ward making Kiddush without eating in each place. An older practice is of one making Kiddush in shul even though he is going to eat only at home (see Shulchan Aruch, OC 279:1). The gemara (Pesachim 101a) already mentions this practice and asks how it is possible considering that the person who makes Kiddush does not eat in shul. The gemara answers that it was instituted to fulfill the mitzva of Kiddush on behalf of guests who eat and sleep in the shul. Many Rishonim (see Tur and Beit Yosef, OC 279) are bothered by the situation in which there are clearly no such guests and we continue to make an ostensibly pointless Kiddush. However, when there are indeed such people who want to be yotzei with the person making Kiddush in shul, all assume there is no problem for the Kiddush to be done by one who is not eating on behalf of one who is eating. Therefore, it is not surprising that the Shemirat Shabbat K’hilchata 54:6, citing the Pri Megadim (ibid.), says that in the case you describe, the people listening to Kiddush and then eating fulfill the mitzva of Kiddush, while the one making Kiddush but is not eating does not fulfill it.
The possibility to do the mitzva for others while not fulfilling the mitzva oneself is a straightforward application of the rule of arvut (responsibility for others) in mitzvot. The more famous application is when one has already fulfilled a mitzva and wants to do it a second time for one who has not yet fulfilled the mitzva (Rosh Hashana 29a). The Dagul Me’reveva does raise the possibility, based on a surprising line in the Rosh (Berachot 3:13), that a man cannot do so on behalf of a woman. However, Rabbi Akiva Eiger (Shut I,7) convincingly argues that there is no difference between men and women in regards to arvut (he reads the Rosh differently). The Mishna Berura (Sha’ar Hatziyun 271:9) posits that Rabbi Akiva Eiger is correct.
Generally, arvut applies only to mitzvot and their berachot, which are obligations for the one who is in need of fulfillment and not to berachot on food, which the person is not required to eat (Rosh Hashana ibid.). However, the gemara concludes (ibid. 29b) that when the beracha on food is itself a mitzva (e.g., the wine for Kiddush) then arvut applies to it as well. Therefore, it is not required that the mekadesh drink the wine of Kiddush, as long as someone else is drinking the required amount (Shulchan Aruch, OC 271:14 – there is a question whether the m’lo lugmav can be reached by adding up what more than one person drank). This is even possible when others are drinking from a different cup of wine (Mishna Berura 271:77), although it is normally best for the one making Kiddush to drink the proper amount from the Kiddush cup (Shemirat Shabbat K’hilchata 48:14).
Answering Amen to Hamakom YenachemShould a mourner (or others present) answer Amen to the words of consolation, “Hamakom yenachem etchem b’toch she’ar aveili Tzion v’Yerushalayim”?
The nature of amen changes with the context of the statement to which one is responding. Most classic berachot praise Hashem for providing one of many things for man (e.g., food, seeing something noteworthy, providing something historical). If one hears someone praising Hashem, he is required to express his agreement (Berachot 51b; Shulchan Aruch, Orach Chayim 215:2).
The Magen Avraham (215:3; also, Mishna Berura 215:9) refers to a midrash that if one hears someone blessing a fellow Jew, he is required to answer amen, even if Hashem’s Name is not invoked. This, as opposed to the first element, is a mitzva between man and fellow man – to add one’s voice in requesting Him to do good for someone. Several Acharonim assume that this is a proper thing rather than an absolute obligation (see Yechaveh Da’at III:9 citing the Netziv; Aruch Hashulchan, OC 215:1).
If one blesses you, it makes sense to answer Amen, as your voice in request for yourself has value, as we know from davening. It may be even more appropriate here because it is possible that the good wishes extend beyond the mourner. Some have the practice to say Hamakom … in the plural even if there is one mourner present, and the most common explanation is that it includes the deceased (see Nitei Gavriel, Aveilut I:1). Indeed, the Rambam (Avel 14:7) wrote that nichum aveilim helps the mourners and the deceased. The connection of the mourner to those who mourn for Jerusalem, which different authorities understood with minor variations, may mean that we are also blessing all of the nation - that we should soon see its rebuilding, which makes answering Amen appropriate.
On the other hand, it is possible that Hamakom is not a good wish but a philosophical message to the mourner, along the following lines. It is hard to come to terms with the loss of a close relative, but just as the Jewish People has learned to deal with the destruction of the Temple and believe in its rebuilding, so too the mourner should accept the Divine decree, believe that it was for the best, and look forward to the deceased’s return with techiyat hameitim. Most authorities, though, seem to understand Hamakom as a prayer/blessing. This is certainly the case for the Sephardic saying of “you shall be comforted from the Heaven” and for the increasingly popular addition of “and you shall not continue to have pain anymore.”
There is also logic to say Amen to fulfill the concept that some Acharonim discuss (see Divrei Sofrim 376:1) of accepting the consolations. On the other hand, there can be ways other than saying the word Amen to do that. I saw a citation of Rav Moshe Feinstein preferring not to say Amen because it is as if the mourner is waiting to be a mourner again. It is not clear what in the words implies that and, if so, why it is okay for the consoler to say so.
My experience at shiva homes over the decades is that mourners did not usually say Amen (as I have seen in the name of Rav Chaim Kaniefsky). However, several contemporary works encourage it, based on the opinion of Rav Shlomo Zalman Auerbach (see Nitei Gavriel ibid. 2; P’nei Baruch 11:5; Teshuvot V’hanhagot V:309.19) and based on halachic logic and this is not a rare occurrence. We have no problem with this developing into the minhag, but in deference to what has apparently been the more prevalent practice, we would not make a ruling that an avel should say it. (Actually, none of the sources we saw, in either direction, use terms of imperative.)
It is less common for other consolers to answer Amen. There is two-pronged logic for other consolers to not answer Amen: 1) Although most use the same standard statement, it is a private matter between the consoler and the mourner, which not everyone should be expected to listen to (some people are shy); 2) The consoler will be saying the same thing soon, and therefore it is not crucial to do it now.
Reciting Kri’at Shema at the Very End of its TimeMy shul sometimes misses sof z’man Kri’at Shema (=szKS) by a few minutes. The rabbi instructs people to say the three parshiyot of Shema before davening, but I usually go ahead to make Kri’at Shema on time and wait during the following beracha for the tzibbur to catch up. Is that an improvement and/or a perfect system?
Those who listen to the rabbi do Kri’at Shema on time. They also repeat Kri’at Shema, and can say the berachot, based on the gemara (Berachot 10b). So the system of reciting Kri’at Shema before davening is responsible (see Rama, Orach Chayim 46:9). However, several Acharonim point out that the recital of Kri’at Shema that is used to fulfill the mitzva is best done along with its berachot (see Mishna Berura 46:31).
But there are two ways to understand that preference: 1. Like there is a full requirement to finish Kri’at Shema by szKS, so there is a preference to recite its accompanying berachot by then. 2. A complete Kri’at Shema requires being sandwiched by its berachot. Your practice’s advisability depends on this question. After doing Kri’at Shema at its time, you complete it with its final beracha only a few minutes later, so according to #2, you are fine. According to #1, you did not finish the last beracha in time. Another test case is if one recites Kri’at Shema before davening but the second time and its berachot end up being on time. The Acharonim (ibid.) say that it is still best to not have had intention to fulfill the mitzva the first time; this proves that #2 was their intention.
But could #1 also be true – that the berachot are best when done before szKS? Consider the machloket whether one has one more hour to recite the berachot, until chatzot, or all day (see Beit Yosef, Orach Chayim 58). Rav Hai Gaon, accepted by the Shulchan Aruch (OC 58:6) takes the strict opinion. If the berachot need not be by szKS, why can’t they be all day? Many answer that it is parallel to the end time of tefilla (Mishna Berura 58:25), and very likely because the berachot are not as linked to Kri’at Shema as they are to tefilla (ibid.), whose time ends a (halachic) hour after Kri’at Shema’s (Shulchan Aruch, OC 89:1). If this is the whole story, your system solves the problem because you finish the berachot before the end time of tefilla. Yet one can still argue (as there are indications) that there are two elements of birchot Kri’at Shema – it is related both to Kri’at Shema and to tefilla. One can then argue that while one can say the berachot after szKS, this is because of tefilla, but the Kri’at Shema element has been lost.
The Levush (OC 58:6) explains Rav Hai Gaon’s requirement by the end of the fourth hour by saying that it is somewhat the time of waking (which is the rationale for szKS). The Malbushei Yom Tov (ad loc.) argues that there is no source for a later “semi-wakeup” time. We suggest the following to explain the Levush. When saying that szKS, which is a Torah-level law, is when the last people wake up, we need to give those people time to do all they need to get up to Kri’at Shema, which now includes much of Shacharit, on time. Perhaps the Levush meant that Chazal wanted everything related to Kri’at Shema to be in the direct post-wakeup-time, but with Kri’at Shema already out of the way, the fourth hour is “spillover time” in this regard. Thus, even if we relate birchot Kri’at Shema’s time to Kri’at Shema’s, we can still say that the fourth hour is l’chatchila because it is in spillover time.
Your system is recommended, in certain circumstances, by a few Acharonim (see Tefilla K’hilchata 3:24). Considering that I did not find in those or other sources that one should try to finish Ga’al Yisrael by szKS, your system is fine in this regard. (The system requires sophistication and planning to: get ahead, be at a good place during Kaddish/Barchu, wait without hefsek after Kri’at Shema. Thus, this is not for everyone. Acting differently from your surroundings can also be an issue. So you might want to discuss with your rabbi if and how to use your system.)
Secrecy in Beit Din[We received the following question from an official in Israel’s judicial system. Below is a free translation of our answer.] In Israeli government courts, records of the proceedings are open to the public, but the proceedings in arbitration courts (including batei din) are supposed to be private. Is there halachic basis for this distinction?
We begin with what can be learned from classical sources about privacy norms in beit din.
Several sources in Chazal indicate that beit din proceedings were at least often open to the public. Gemarot (including Shvuot 31a; see Rambam, Sanhedrin 22:3) describe the situation of students following the proceedings of their teachers who were dayanim.
There was a strong rationale for at least the results of the proceedings to be known to the broad public. Chazal assumed that a divorce would be known to the public, as it was important for people to know their change in status for several reasons (see Gittin 81a).
Knowledge of transactions and adjudication about ownership and monetary obligations was critical to the public especially in regard to land acquisition. If someone wants to buy land, he needs to know whether the seller’s ownership is accepted. He also needs to know if the seller is a debtor, as this often creates a lien on all of his land. Now the land registry (in Israel, Tabu) clarifies ownership and allows notations about liens, adjudication, etc. At a time when formal registries did not exist, common public knowledge was critical. Therefore, witnesses to loan contracts who told people about the documents’ content were not gossipers but doing a civic duty (see Bava Batra 175b). This was also true of awareness of legal proceedings. This is why the gemara assumes that the public found out about monetary legal processes before beit din almost instantaneously (see Gittin 18a). Again, this allowed a potential buyer or a lender to perform due diligence. Secrecy often damaged social welfare.
Sources also discuss the idea that as a result of a dispute going to beit din, witnesses unknown to a litigant could hear of the dispute and come forward to testify (see Tosafot, Ketubot 2a). Since people would invite others to witness agreements, contracts, etc., if someone was caught doing something unethical that invalidated him as a witness, beit din had a process to inform the public not rely on him (Shulchan Aruch, CM 34:23).
At least one element of the beit din process required secrecy. When dayanim disagree on a ruling, none of them may divulge who agreed with which side (Sanhedrin 29a).
There are differences between set and ad hoc batei din accepted by the litigants of their own will. The main differences involve jurisdictional questions (see Shulchan Aruch, Choshen Mishpat siman 13&14). We do not find major differences in the manner in which the hearings and rulings are carried out, including secrecy.
That being said, litigants can agree to significantly change the rules of adjudication. They can accept a dayan or a witness who should have been disqualified to serve in their case (ibid. 22:1). They can transfer the need to make an oath from one side to the other (ibid. 3). They also have the ability to agree that the process should be private (at least when it does not directly contradict the need of the public to know). This is less likely to cause problems to the public in our days. The Law of Arbitration makes it possible for one to have non-governmental options available for adjudication, and when there is a requirement to have an arbitration agreement to make the decisions legally binding, it makes sense that they include rules that look out for the welfare of the litigants. In most cases, litigants prefer secrecy, and therefore a beit din like ours is happy to protect their privacy. However, had the law required public transparency for adjudication in a beit din operating according to arbitration law, Halacha would have been fine with that.
Kaddish Rights – According to the Deceased or Mourners?I am in the midst of the year of Kaddish/chazanut for a parent. Two brothers have been davening due to shloshim. After they finish shloshim, should we have a rotation of three or, considering that our recitations are to bring merit for the deceased, should I be chazan half the time? (We will not fight over it but would like to do the correct thing.)
Indeed, the most important principle is to avoid machloket on such matters, as quarreling is antithetical to the merit one is trying to bring to the deceased (P’nei Baruch 34:48).
The Rama (YD 376:4) rules that it is proper for sons of the deceased to bring parents merit by saying Kaddish and being chazan during the 11 months after death. Yet, the Shulchan Aruch (OC 53:20) says that the congregation may choose another chazan over a mourner if they so desire. A mourner’s absolute right applies only to the Kaddeishim designed for them (Mishna Berura 53:60). However, the congregation has a mitzva to allow the mourner to be chazan under normal circumstances.
Those who are not able to be chazan were allotted Kaddeishim to aid them in bringing merit to their parents. Halachically preferably and originally practiced, one mourner alone recites each Kaddish. To deal with cases of too many mourners, the Acharonim arrived at detailed rules of kedimut (prioritization). Over the last few hundred years, to ward off quarreling, the minhag has spread almost universally to allow multiple people to say Kaddish together. Thus, the rules of kedimut are limited now to choice of chazan, about which you are asking.
The earliest source on your question is the Maharam Mintz (Shut 80), accepted by the Rama (ibid.), written as part of guidelines to nip potential disputes in the bud. He posits that each mourner has equal rights in receiving turns, even if his parent is “represented” in the shul by multiple siblings. The Maharam Mintz is clear about the reason. The rights of reciting Kaddish relate to the avel, who is acting in fulfillment of the mitzva of kibbud av va’em. Although ultimately it benefits the parent, the rights relate to the live son(s).
This approach has many ramifications. One brother can demand of another to share chazanut equitably, allowing each to honor their parent, even if there is no net gain for the deceased. Much of the discussion on the matter relates to the minhag of some communities to give precedence to an avel who is a local and/or a dues payer over a guest. In such a place, how do we view an avel who is a visitor in the deceased’s shul? The Maharam Mintz (ibid.) and the Shach (YD 376:12) say that the son’s own status is the deciding factor, i.e., he is a visitor, and not treated as the “agent” of the newly deceased community member.
The Avodat Hagershuni (63) says that while everyone agrees that each brother has full, not shared, rights, there is another opinion regarding the reason. He cites the Maharil as saying that the parent is the determinant, but that a deceased with multiple sons has been merited by Hashem with having the advantage of multiple “Kaddish reciters.” This extra privilege should not be taken away from him by having it evened out with other deceased.
While it seems strange to attribute extra rights to one deceased over another, consider the following perspective. If five brothers lived separately, a fellow mourner could not tell any of them: “I am an only child; you should let me be chazan any day that any of your brothers is chazan in his community.” Rather, on many days, that parent would be getting multiple tefilla merits. Why, then, should the deceased be deprived of that just because his sons daven in the same shul? Rabbi Akiva Eiger (Shut II:4) says that the Maharam Mintz and Maharil’s reasons are both true, and therefore one can have rights as a local either through the parent or through the son. If there is a conflict between an avel with one “right” and one with both, the one with both should daven two thirds of the time.
In your case, though, all agree that you should be chazan one third of the time.
Kri’at HaTorah at MinchaWhen it is not possible to get a minyan together for a weekday Shacharit, may we lain at Mincha?
The matter hinges on whether the Rabbinic enactment of weekday kri’at haTorah was made specifically for Shacharit or that it is just the preferred time. The mishna (Megilla 21a) lists times for kri’at haTorah, starting with: “Monday, Thursday, and Shabbat Mincha.” While some believe the order hints whether Mincha is or is not a possibility for weekdays (see Yehuda Ya’aleh, Orach Chayim 51; Beit She’arim, OC 50), it is more likely that we cannot make a reliable inference (Shut Maharshag II,92). In the Rambam (Tefilla 12:1), we find weekday kri’at haTorah attached to Shacharit. However, there are variant texts (Kesef Mishneh ad loc.), and perhaps he only means that Shacharit is the time l’chatchila (Shevet Halevi IV,15).
The rule (see Megilla 20b) is that mitzvot for a certain day can be done (at least b’di’eved) all day, unless there is a reason/source to limit them (e.g., Kri’at Shema; each of the daily tefillot). Regarding weekday laining, the Maharshag (ibid.) finds no reason to limit it. Some Acharonim, though, provide spiritual reasons. Yabia Omer (IV, OC 17) cites those who connect weekday kri’at haTorah to the idea that Monday and Thursday mornings are effective times for supplications (i.e., long Tachanun). In contrast, afternoons (except on Shabbat) are times of strict judgment. Goren David (OC 5) posits that public kri’at haTorah must resemble how Moshe instituted it – when all Jews were together. Nowadays, that is lacking, but it is important that all Jews do it at one time period. He leaves it up in the air as to whether different time periods on the correct day are considered a unified time.
There are 250 year-old sources on a similar case. The Dagul Mei’revava (to OC 135:2) rules that if a shul was unable to lain the parasha on Shabbat morning, they should do so that Shabbat afternoon. The Chida (Chaim Sha’al I, 71) disagrees, saying that one can read a whole parasha only on Shabbat morning; rather, one should read two parshiyot the next Shabbat. There are different indications as to whether the Zohar is in line with the Chida or it is not conclusive (see Yabia Omer ibid.). The Mishna Berura (135:5) and most Ashkenazi poskim accept the Noda B’Yehuda, whereas the Kaf Hachayim (OC 135:9) is among Sephardi poskim who rule like the Chida.
At first glance, regarding our case, the Dagul Mei’revava should say to lain at Mincha, and the Chida should say not to. However, there are distinctions in either direction (see Yabia Omer ibid.). On the one hand, Shabbat Mincha is a time for kri’at haTorah of some sort, which may not be true of weekday Mincha. On the other hand, Shabbat Mincha is the time for a different type of laining and the next Shabbat is a valid alternative, whereas all day Monday/Thursday is likely valid for laining and doing it on a later day is a problem because of the idea of three days without Torah (see Bava Kama 82a).
The explicit sources regarding our question begin around 200 years ago, with accounts that the Chatam Sofer, Rav Yehuda Assad, and others arranged Mincha laining for themselves when travelling (see Goren David and Yehuda Ya’aleh ibid.). Most poskim, including the Mishna Berura (135:1), assume that this is fundamentally correct (see also Shevet Halevi IV,15). Some argue that the case is not strong enough to introduce such a strange-seeming innovation (Beit Shearim, OC 50), and therefore it is better to refrain from it (this is also Rav Ovadia Yosef’s conclusion (Yabia Omer ibid.).What is clear from many of the sources (not all quoted here) is that in practice, a few subjective factors are important: whether it was at all possible to do it at Shacharit (see Yabia Omer ibid.); if it is on a regular basis (see Tzitz Eliezer XIII, 27); how people will react (Maharshag ibid.). It is unclear if it makes a difference how many people missed morning laining (see Yabia Omer ibid.). Therefore, each specific case behooves rabbinic guidance.
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