ASK THE RABBI

[We responded to the querier regarding his situation but are broadening (in brevity) the discussion. We will compare elements of bankruptcy law (focusing on the American system, which is more sweeping than many European systems including Israel) to Halacha, survey how Halacha reacts to that (this week), and relate practically to some common applications (next week).]

Of the two elements of modern bankruptcy law, one is found in Halacha. If a debtor lacks the funds to pay, he must liquidate or give many of his assets to his creditors, or beit din will, in many cases (depending on the type of debt and assets) oversee the seizing of assets. However, the debtor retains basic assets needed for daily living (mesadrin l’ba’al chov – Bava Metzia 113b). All bankruptcy systems do this and regulate the apportioning of payment among various creditors, in a way that differs from the halachic system.

The second element of American Bankruptcy is “fresh start,” which makes it unnecessary to make payments (“discharge”) beyond those prescribed by the bankruptcy court.  Talmudic Halacha does not recognized fresh start. If someone originally lacks funds but acquires them later, he must pay past debts using new assets.

There are a few possible ways for fresh start bankruptcy to become halachically viable. One is that in some cases, the creditors make a settlement with the debtor over the terms of reduced payment. Agreement actually does not make the question moot, because it can be considered agreement under duress. This is because the creditors have to deal with the “threat” of a possibly more detrimental, non-halachic bankruptcy judgment or that the debtor’s remaining assets will disappear before they receive payment (the bankruptcy system takes steps to prevent such disappearances). Regarding agreement under duress, a sale is valid, but a present given under duress (i.e., without a significant return) is invalid (Bava Batra 47b). After citing various opinions and distinctions, the Pitchei Choshen’s (Halva’ah 2:(62)) approach is that the parties’ agreement is insufficient to make debt reduction binding unless finalized without an act of kinyan (which may or may not exist in various cases).

A factor that might validate even debt discharge is dina d’malchuta (the law of the land). There are three main approaches regarding the concept’s extent. One limits it to the direct welfare of the governmental entity (opinion cited by the Rama, Choshen Mishpat 369:8). The Rama (ibid.) rules that it applies much more broadly – to cases in which a law is made to improve society (as opposed to for the government’s perception of justice). The Shach (CM 73:39) argues that even when done to ostensibly improve society, a law that contradicts the Torah is not acceptable (between Jews). The Chatam Sofer (V:44) follows the Rama’s approach, with a slight clarification. We follow dina d’malchuta when it addresses a societal need in a manner that the Rabbis would have instituted the matter if they had the ability. Most poskim (see Igrot Moshe, CM II:62; Rav Daichovsky in Techumin XVIII) follow the Rama’s approach, and in our beit din, we do so with the Chatam Sofer’s addition. However, it is not always clear when a law contributes to society and/or would the rabbis agree to it. (Regarding bankruptcy, the Chelkat Yaakov, CM 32 views it negatively, and the Igrot Moshe ibid. positively.)

A mishna (Berachot 34a) states that a kohen serving as chazan should not duchen even if he is the only available kohen unless he is confident that he will be able to return to his place in chazarat hashatz without undue confusion. The Tur (Orach Chayim 128) cites the Maharam MiRuttenburg as saying that the ability to not get confused does not erase the problem totally but only allows duchening when the chazan is the only available kohen. The Shulchan Aruch (OC 128:20) and the Rama (ad loc.) follow this ruling. The logic is that the slight endangering of the quality of the public tefilla is warranted only if it is needed to ensure Birkat Kohanim will take place at all.  

Some later poskim present ways of coming to a different policy. The Pri Chadash (ad loc.) reads the mishna differently. In practice, whether or not there are other kohanim makes no difference. The mishna starts by saying that even if there is no other kohen, a chazan who might have a concentration problem may not duchen. Once it introduces that this problem depends on the person, there is no reason for any capable kohen to forgo his mitzva of Birkat Kohanim.

The Magen Avraham (ad loc. 31) tries to explain a minhag he was aware of for a chazan to duchen even if there are others based on a societal change since the time of the gemara that many note. Nowadays, the chazan uses a siddur, in which case we can assume that he will be able to continue chazarat hashatz properly. While according to the Tur and Shulchan Aruch, this broad confidence in today’s chazanim is only enough to justify duchening when he is the only kohen, one can argue that it removes any effect of the problem and allows duchening in all cases. The Magen Avraham disagrees with this approach, because the poskim during hundreds of years of siddurim use did not write that the halacha had changed. However, he reasons that it is legitimate to follow it if this is the local minhag. The Mishna Berura (128:76 and Sha’ar Hatziyun 64) takes a similar approach to that of the Magen Avraham. This is also the practice of most Sephardi communities (see Ohr L’tzion II, 8:5; Yalkut Yosef, OC 128:62). However, the majority of Ashkenazim in Israel (especially, in Yerushalayim) follow the Pri Chadash and allow the chazan to duchen even if there are others who are doing so (see Dirshu 128:(84)). (Az Nidberu XIII:34 advocates a compromise. A kohen who is serving as chazan when there is only one other kohen should also do Birkat Kohanim, because many hold that Birkat Kohanim is a mitzva from the Torah only when there are two kohanim. However, he was unable to find a previous posek to explicitly make such a distinction.)

There are times when one whose minhag is to not duchen should do so. The Rama (ibid.) says that if someone calls him to duchen, which turns him into one who is obligated from the Torah to duchen, the obligation overpowers concerns of confusion. Poskim explain (see Yalkut Yosef ibid.) that generally when the kohanim are called, they do not intend for the chazan. One can argue that in shuls with the minhag that the chazan does duchen, the kohen chazan will thus be bound based on the Rama. However, in our shuls, the kohen is called too late, as a kohen who has not begun to approach the duchan before Modim may not do Birkat Kohanim (Shulchan Aruch ibid. 8). Nevertheless, just the fact that you are in a shul which has the minhag for the chazan to duchen is enough to follow the minhag. This is ostensibly so even for someone who has not joined the community in a manner that he should personally adopt all of their minhagim. Still, it would be best for someone like you to avoid being chazan at tefillot that have Birkat Kohanim, which is anyway a practice that many suggest for any kohen (see Birchot Horai 10:7).

This is not a ruling about a specific case but a discussion of the general scenario. We start with the question of a halachic requirement to pay.

This is an example of a person causing damage without doing something that is direct damage (nezek). It is difficult to consider not buckling direct damage one person does (adam hamazik) or to compare it to one of the other Torah-described categories of damage (i.e., damages done by one’s animal, fire, and pit, or matters derived from them – see ch. #1 of Bava Kama). There are another two categories of one causing damage to another. One, called garmi, can be described as semi-direct damage; we pasken that the causer is obligated to pay (Shulchan Aruch, Choshen Mishpat 386:1). The other, gerama, is less direct causation. There is no enforceable compensation for gerama (Bava Kama 60a), but it is prohibited to cause loss in that way (Bava Batra 22b), and there is often a moral obligation to pay (see ibid. 55b). How to determine what is gerama and what is garmi is one of the most complicated questions in Halacha. Factors that may play a role include: whether he did so purposely or accidentally (see Shach, CM 386:6), especially when the damage came from an external source (see Pitchei Choshen, Nezikin 4:(23)); how likely it is that the action will cause damage (Rosh, Bava Kama 9:13); how immediate was the damage (see Sha’ar Mishpat 386:1). 

In this case, many factors favor the passenger if the situation was in a “normal” (although we strongly urge wearing seatbelts) manner. He did not intend to cause damage. The chances of getting caught are small. The damage probably happened well after he got in the car (one can argue that every moment of not putting on the belt is a new affront and view being caught as immediate).

However, there is a stronger reason to exempt the passenger from outright obligation. There are two traffic violations involved here; the policeman could have given two tickets! One (#6706) is by the passenger for not putting on the seatbelt; another (#6705) is by the driver for driving when someone is not buckled in. The “damage” comes based on the “law of the land,” which enables authorities to fine those whom they want to deter from dangerous activities that hurt society. Two people did something illegal – the passenger and the driver. The authorities are interested in teaching both a lesson – BUCKLE UP to save lives or pay money. Your friend directly failed in doing what the law demands of drivers – demanding that people put on their belts. If so, the passenger did not cause the damage, as defined by the law. In some ways, it is like someone getting a ticket for tailgating an improperly slow driver. It is hard to claim that the slow driver is legally responsible for the tailgater dealing with the situation in the wrong way. Here too, the driver could have and did not demand to buckle up.

If the driver did make the demand and the passenger deceived him, he purposely and immorally (as a guest in someone else’s property) endangered the driver. In such a case, if the police knew what happened, they would presumably have penalized only the passenger. It might still not be certain that this is garmi, but many a dayan would obligate the passenger, based on his behavior, and the driver could make that demand.

It would appear that there are contradictory approaches on the idea of withholding requests on Shabbat. The Yerushalmi (Shabbat 15:3) says that one is not allowed to “demand his needs” on Shabbat. In Berachot (5:2), it explains that Havdala in Shemoneh Esrei is at the very beginning of the request section because requests are inappropriate before ending Shabbat. The gemara (Berachot 21a), though, rules that if one began one of the middle berachot on Shabbat, he completes that beracha, as the middle berachot are appropriate and are withheld only to avoid tircha (extra toil) on Shabbat for daveners. So it seems to be a machloket whether the content of requests is appropriate on Shabbat. (Some Rishonim (see Beit Yosef, Orach Chayim 268) say that only the first beracha can be done if started by mistake, because asking for wisdom is a spiritual request. The Shulchan Aruch (OC 268:2) rejects this distinction.)      

However, a distinction in the first Yerushalmi allows the sources to coexist. It raises the question of whether the parts of the third beracha of Birkat Hamazon that contain requests can be recited on Shabbat. Its answer is that it can since it is a tofes (set form of the) beracha. In other words, special requests are problematic, not ones that are part of the normal text. Thus, Chazal did not have to remove Shemoneh Esrei’s middle berachot but decided to do so because of tircha (Aruch Hashulchan, OC 268:3). Therefore, if one accidentally slips into the set Shemoneh Esrei mode, he may finish it. The Midrash Tanchuma (Vayeira 1) does gives a different reason for omitting the middle berachot – thinking about the needs addressed in these berachot can remind one of his problems and make him unduly sad.

We might suggest that requests of the masses are permitted, as they are in the first and last three berachot of Shemoneh Esrei (Shulchan Aruch, OC 112:1). However, the Rivash (512) proves from the fact that the requests in Birkat Hamazon, which apply to the masses (Yerushalayim etc.), would have been forbidden if they had not been part of the set text, that this does not solve the Shabbat problem.

It is unclear the extent to which being set helps. On the one hand, the Rivash explains that Zocherenu L’chayim can be said during Shabbat of Aseret Y’mei Teshuva because it is a set part of Shemoneh Esrei throughout that period. The Ohr Zarua (II:89) similarly justifies Elokai Netzor (full of requests) on Shabbat on these grounds. This is not obvious when one considers that it is somewhat after the Amida and Chazal did not institute it as a required text (Berachot 17a cites it as one Amora’s personal prayer). He says that it is permitted now only because it has become widely accepted, implying that an individual’s set addition would be a problem.

The Rivash (ibid.) discusses Avinu Malkeinu, reasoning that since it is separate from regular tefilla, it should be improper on Shabbat. (On the other hand, he justifies all of the several minhagim on the matter, saying that the halachic issues are not serious enough to change a community minhag.) We should also note that almost all communities recite public requests (e.g., Yekum Purkan), specifically on Shabbat, as well as Mi Shebeirach for the sick (we do add, “Shabbat hi milizok”).

In short, while it is difficult to explain every element of our minhagim on public prayers on Shabbat, the individual should not add his own requests, other than in a case of acute need that cannot be delayed. Your question about peace presents a wonderful opportunity to point out that we have many opportunities. Sim Shalom, which remains in the Shabbat Amida, is a request for peace. Nothing prevents us from taking a little extra time to contemplate ideas that abound in our standard text and cognitively relate them to matters that are on our mind. One should just avoid doing it a manner that makes him sad on Shabbat.        

We will focus mainly on your assumption – that one may add personal thanks in Modim. There is little in the poskim on this specific question, but we can learn from many general relevant sources (find article by R. Chanan Ariel).

Gemarot say that one may add personal requests in Shemoneh Esrei’s middle berachot, especially Shema Koleinu (Avoda Zara 8a; see Shulchan Aruch, Orach Chayim 119:1) but not during the first three and last three berachot (Berachot 34a; see Shulchan Aruch, OC 112:1). The latter are reserved for praise and thanks, respectively. This implies that it is fine to add praises and thanks in those places. In fact, in allowing making communal requests during the berachot, Rabbeinu Tam (cited by Tur, OC 112) says that asking for the needs of the masses is a praise to Hashem, which implies that actual praise is certainly fine.  

However, praises also require caution. The gemara (Berachot 34b; see Shulchan Aruch, OC 113:9) criticizes those who go beyond the set praises of Hashem because they imply that they have mentioned all of Hashem’s greatness. It seems implausible that it could always be forbidden to praise and/or thank Hashem, so when is it? The Beit Yosef (OC 113) cites the Ra’ah and Rabbeinu Yona as saying that one may not add adjectives describing Hashem but may add mention of good things He did. Rabbeinu Yona also distinguishes between things said at the end of berachot and those in the middle of berachot. The latter stand alone and are permitted. It is unclear from the corresponding Shulchan Aruch if he accepts these distinctions.

There is a machloket in the sources and minhagim about adding piyutim to tefilla at certain times. The Shulchan Aruch (OC 68:1) opposes it, apparently because it is an interruption, changes the berachot’s length, and encourages talking (see Tur ad loc.). The Rama supports it, but the minhag nowadays is to do so only on Yamim Noraim. There was also controversy about Aseret Y’mei Teshuva additions (Zochreinu, etc.) to tefilla (see Beit Yosef, OC 112), and there the minhag is to say them. One might distinguish, though, between set sayings that are accepted by Klal Yisrael and personal ones.

We have written (Living the Halachic Process, vol. II, A-1) that it is permitted and positive to thank Hashem but that it can be problematic to do so in a manner that makes it appear like a set beracha. Attaching appropriate statements to an existing beracha, on the one hand, makes it unlikely for there to be an issue of beracha l’vatatala (see Mishna Berura 108:38). On the other hand, changes in the content can be more problematic (See Berachot 40b; Shut HaRambam 254).

We summarize and suggest as follows. Since the lack of sources and apparent minhag is to not add personal thanks during Modim, then even though it is probably halachically permitted, we do not suggest it when other options exist. Before Elokai Netzor and during Shema Koleinu, one can say anything appropriate, and while that is classically for requests, it should be fine to thank Hashem as well. Realize that even the middle, “request” berachot include praise. Therefore, the following example of an addition would seem ideal: “Bless my grandchild, for whose birth I am so grateful to You, with a wonderful life.” (See a similar idea in Yaskil Avdi, vol. VIII, p. 169.)

Regarding Shabbat, there are two reasons for requests, such as the middle berachot of Shemoneh Esrei. The Yerushalmi (Shabbat 15:3) says that one should not make personal requests on a day that one must not be focused on his needs. The gemara (Berachot 21b) says that we do not want the toil of a long tefilla. Apparently, some combination of the two ideas is true. [We will discuss the issue next week.] If you want to give only thanks in Modim or before Elokai Netzor, this is not a problem on Shabbat. Incorporating a request (see above) is likely inappropriate on Shabbat.

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).