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Ribbit in a Loan from an Irrevocable Trust FundMy father set up an irrevocable trust fund with my three sisters, brother, and I as beneficiaries. A specialized company (probably not Jewish, although our trust is handled by Jews) serves as trustee. I “borrowed” money interest-free from the fund to buy a house, but it is unlikely I will have to return the loan, as what I received will probably end up counting as most of the money coming to me. I want to turn the loan into interest paying, so that I will, for the sake of my siblings’ part, compensate the fund for the missing appreciation because I took the money. Is this a violation of ribbit? If so, may I use a heter iska to make it permitted, and with whom would I do it?
We must determine an irrevocable trust’s halachic status. The trust enables your father (the settlor or grantor) to bequeath money to his children in what he views as a financially advantageous manner. He gives funds to (a) trustee(s) (the company), who legally owns the funds, which are explicitly earmarked for certain purposes, specifically to provide assets for the beneficiaries (you and siblings) at the trustee’s discretion. A major halachic question is whether the trust fund obviates the halachot of inheritance. This would be either because money (perhaps even for a revocable trust) has been given to a third party with instructions (beyond our scope) or because, especially for an irrevocable trust, the money no longer belongs to the grantor, so that the halachot of inheritance cannot take effect. The emerging consensus of poskim seems to be that yerusha does not apply to the contents of the trust (see Pitchei Choshen, Yerusha 4:(34)). (If the trust is a farce, and the grantor fully controls the money, the matter is more problematic).
Ribbit exists when Jewish owned money is lent to another Jew with interest. It does not help if a non-Jew carries out the transaction as a guardian, if the financial impact relates to the Jewish owner (Shulchan Aruch, Yoreh Deah 168:24). However, in this case, assuming the trustee really controls the money, the halachic status likely accepts the legal one (based on dina d’malchuta and situmta) – that your father no longer owns the funds. It is even clearer that the beneficiaries, who never owned the money, do not own it yet. They have made no halachic kinyan, and the law does not recognize them as owners. When and how much they will receive depends on various consequences and the trustee’s decision. Their only legal right is the ability to sue the trustee for breach of fiduciary obligations. Thus, the trustee is not merely handling the funds; it is the owner, albeit with conditions attached.
Even if halacha were not to recognize the trustee’s ownership of property ceded to it, due to a lack of valid kinyan or because it is sometimes a farce, you probably still do not have a problem. After all, the trustee sets up a bank account which the grantor and beneficiaries cannot touch. Even if they were to sue the trustee in beit din and win, the trustee would owe money, but the value (theoretical not coins or property) in the account is likely the trustee’s. Therefore, the actual money you received as a loan, was the trustee’s.
What is the ribbit status of the trustee company? The great majority of poskim (see Torat Ribbit 17:52), say that the laws of ribbit apply to a lender who is a corporation. However, most poskim (see Brit Yehuda 30:16; Torat Ribbit 17:64) rule there are no ribbit problems if Jews own a minority share, irrespective of the workers who handle a given fund (see Shulchan Aruch ibid.). Therefore, if the company is mainly of non-Jewish ownership, you have no problems. If you are concerned with possibility of Jewish ownership, you can do a heter iska with them. This is slightly more complicated than usual because you need to convert an existing loan into an iska investment (see Brit Yehuda 40:23), and we are willing to guide you through the process. (Even if you avoid heterei iska when they obviate the spirit of the law, this case is unobjectionable.)
Husband Accepting Shabbat with his WifeMy wife generally lights candles 15 minutes before sunset, in keeping with our community’s practice. I generally cease melacha then, as do she and our two little children. Sometimes, due to work, I can make it home only by sunset, not candle lighting time. May my wife light at the usual time or should she wait for me? I am afraid that my small children, who are used to my not doing melacha after my wife lights, will be confused.
A community’s candle lighting time is not the time that all community members are expected to accept Shabbat but is the first formal action done towards that end. The Behag (cited in the Tur and Shulchan Aruch, Orach Chayim 263:10) posits that a woman accepts Shabbat with this lighting. This is true at least for Ashkenazi women (see Rama, ad loc.), who for this reason recite the beracha only after completing lighting (see Darchei Moshe, OC 263:2). (The ruling for Sephardi women is more complicated – see Yabia Omer, IX, OC 24).
However, lighting candles is not a home’s absolute acceptance of Shabbat. For one thing, the Rama (ibid.) allows a woman to not accept Shabbat by lighting by means of even a mental condition. After all, lighting is innately a preparatory act before Shabbat, not an act of Shabbat, such as davening Maariv or making Kiddush. In fact, men do not accept Shabbat when they light candles (Mishna Berura 263:42).
On the other hand, there are several indications that candle lighting it is not merely a technical preparatory act. First, we must light Shabbat candles even if we are happy with the existing light situation and this mitzva is accompanied by a special beracha. Additionally, not everyone allows a woman to make a condition to light candles without accepting Shabbat. We rule it requires a real need (Magen Avraham 263:20; Mishna Berura 263:44; see Shemirat Shabbat K’hilchata 43:24).
Regarding your question, the Rama states clearly that members of the household other than the woman who lights do not accept Shabbat with that lighting. Most men do not want to accept because they want to daven Mincha in shul, which is usually after candle lighting time (women should daven Mincha before (Mishna Berura 263:43)) and often will drive there. In some households, daughters generally accept Shabbat when their mother lights, which has a certain appropriateness to it. However, it is not halacha and in many households, after lighting candles, there may still be work to do. Therefore, it is not always healthy to expect the whole family to be ready or for the mother to feel the pressure that she must be sure everything is taken care of before she lights.
Do not teach your children that their father must cease work after their mother lights candles. Your assumption that it is confusing is based on your assumption that this is proper. To the contrary, it is confusing to see you being careful not to do melacha while neighbors are driving to shul.
Certainly there are many advantages to a father being home well before Shabbat, but life is not always that obliging. There is some question whether there is a minimum time before sunset to stop doing melacha for tosefet (early acceptance of) Shabbat (see Rosh, Berachot 4:6), and we usually assume a few minutes is enough. Of course, the closer to Shabbat, the more preferable it is to not do melacha. Forgetting the rejected opinion that bein hashemashot begins several minutes before sunset, according to some opinions, the time of sunset is affected a few minutes due to mountains in the area. On practical grounds, one’s watch can be off, he can forget the exact time, or he could lose track of time under the pressure of last minute delays. Therefore, it is prudent although halachically not required to leave at least, say, five minutes before sunset to be finished with all traveling and other melacha.
In short, your wife need not wait for you and should not wait more than a few minutes. Her correct time and yours are not linked.
A Rabbi’s Approach to Monetary Problem Solving[We present a summary of a conversation with a new community rabbi who sought our help in handling a monetary dispute between two congregants. The specific dispute and solution are not the focus of this presentation.] The scope of the dispute, between people who need to interact with each other regularly, is approximately 2-3,000 shekels. I was reluctant to accept responsibility for the matter, because I do not want to create resentment with congregants and because I do not “specialize” in monetary halacha. However, they want me, specifically, to handle it, and a rabbinical mentor told me I have no choice. So far, each side has told me their side separately; I have not met with them together. I think each one of them is trying to be honest, but each views the situation, on technical and legal grounds, differently.
I urge you to clarify with your congregants that the following rules of engagement are secure for a combination of halachic and practical reasons.
In such a case of only a moderate financial scope, a significant personal one, and technical claims, the sides should assure you they will not allow it to develop an adversarial bent. (Most of) each side’s claim has logic, and they must not be overly disappointed or surprised if they “lose” compared to their expectation. They should view any amount they “lose” not as a shame but as an honor to do the proper thing vis a vis their neighbor. It is no more of a loss than the extra cost of kosher food or of tuition at their children’s schools of choice. Hammering home these ideas is important for at least two reasons. 1) It is true and educational, and this is the right time/setting, as their rabbi, to teach or remind them. 2) If they have an adversarial approach, you are likely to incur resentment from either or both sides for not living up to their expectations. (As dayanim, we are used to that, and it is part of our sacred duty. It is also with people with whom we do not interact in other settings.) As you need to interact with them communally, you do not want to harm relationships. So if they do not have the right attitude, I recommend to refer them to a different framework. (In the shtetl, the rabbi/dayan often had no choice, but our dynamic society offers many options.) Working it out themselves is best but is hard with bad attitudes; mediation or beit din are options.
Next, let us look at your role. Due to a few issues, I suggest not to view or present yourself as an ad-hoc dayan bound to a Choshen Mishpat ruling. First, you have not had sufficient training and practice. Also, it may be very time-consuming to arrive at the correct ruling. Seeking assistance from dayanim minimizes but does not remove the problem.
Also, under normal circumstances, monetary decisions are to be made by a beit din of three, not a lone dayan (Shulchan Aruch, CM 3:1). Even a special expert, who can serve alone, should generally avoid it (ibid. 3, based on Pirkei Avot 4:8). While it may be permitted to do so when the litigants specifically ask for one, it is still problematic (see Shach, CM 3:10). The best solution is to say that your ruling can be either according to halacha, or even a halachic mistake, based on your reasoning.
Another issue is that you have already met with each side separately. That is great when dealing informally with disputes, but it is forbidden for dayanim, both according to halacha (Shulchan Aruch, CM17:5) and according to arbitration law. Admittedly, it is permitted to adjudicate afterward with the other side’s agreement (Rama ad loc.).
All these factors push toward a preference of giving up on the dayanut route in favor of less formal dispute resolution, as was Aharon’s practice, as opposed to Moshe’s (see Sanhedrin 6b). If you can serve as a mediator rather than an arbitrator – great. If they need you to make the decision, then to the extent that halacha guides you – wonderful. However, they should expect a ruling based on peshara, where you bring them to a settlement we wish they would have arrived at alone.
Does a Chatan Daven with a Minyan?I have heard that a chatan during the week of sheva berachot does not need to daven with a minyan. Is there anything to that, and what would the reason be?
There is something to what you have heard, but it has less to do with a minyan than with going to shul. Let us discuss the issues and put things in perspective.
The Shulchan Aruch (Orach Chayim 131:1) says that Tachanun is not recited in a chatan’s house because the simcha of a chatan and the somberness of Tachanun do not go together well. The Rama (ad loc.) says that this is even when the chatan comes to shul, but only on the wedding day. The Taz (ad loc. 10) says that it applies all seven days after the wedding and comments that for this reason, a chatan should not come to shul during this time so as not to deprive people of Tachanun. The Mishna Berura (131:26) cites the Taz without dissent.
Contemporary poskim point out that some disagree with this restriction/recommendation (see Nitei Gavriel, Nisuin 63:4; Dirshu 131:(41)). Let us briefly analyze. While the tzibbur rarely minds missing Tachanun, it is an important prayer (see Mishna Berura 131:1). Still, should we exclude such an honored person (see below) who has done nothing wrong? Rav S.Z. Auerbach (cited in Tefilla K’hilchata 15:(41)) posits that according to the Rama, that it is only on the wedding day, people are correctly happy to share his simcha at the price of Tachanun, but for the Taz, who applies the exemption for a week, it is more of a problem to take away Tachanun that much (we hope for many weddings during the year). In answering why a mohel is not told not to come to shul, he also adds that due to the stature of a chatan and his (one-time, iy”H) preoccupation with his new wife and status, the importance of his tefilla b’tzibbur is diminished. This explains why we may prefer him to not come to shul. I would put it this way. Consistently davening in shul helps the individual and Klal Yisrael. A chatan personally has a halachically recognized competing reason to stay home (like the halacha to not go to work that week). The fact that his presence deprives the community of Tachanun is enough to tip the scale in favor of davening at home in the presence of his kalla.
Another reason not to go to shul is the concept that a chatan (and kalla) should not go on the streets by himself (Rama, Even Haezer 64:1). Some explain the practice based on concern for his physical and/or spiritual welfare (based on Berachot 54b). Others (Perisha, Even Haezer 64:1*) connect it to his stature resembling a king, who does not go unaccompanied (Pirkei D’Rabbi Eliezer 16). There are questions as to whether this applies in safe places/times (daytime). In any case, an escort of one including the new spouse suffices (see Nitei Gavriel, Nisuim 56:(10)), so this impediment is solvable.
Let us turn to practical guidelines and perspectives. If there is a minyan at Sheva Berachot, the chatan should take part, which should make the kalla happy. Going to shul can depend on the circumstances. If the couple is careful about not going out alone (which Askenazim, especially those with Chassidish leanings, are more likely to be), then he should consider the feasibility of the alternatives. Does he have someone to escort him both ways, without unreasonable tircha or discomfort to the kalla? Is it feasible and is the kalla interested to come to shul herself? How important is it to the chatan to not miss minyan, even on such a week? How important is it for the kalla that her chatan does not miss minyan “because of her” and that he/they thank Hashem for their marriage and add requests in an optimal setting for its success? It is not always simple for a chatan to raise these questions and get honest answers about how his kalla really feels. Therefore, some rabbis might wisely say that the point of the departure is that the chatan should not be expected to go to shul. However, if based on the personalities and circumstances, it is deemed desirable, there is insufficient reason to preclude his going to shul.
Kashrut of a Tea Bag HolderI have a porcelain tea bag holder (small saucer on which you put a tea bag after removing it from the tea). May I use it alternately for pareve tea served in both milchig (e.g., used for coffee with milk) and fleishig cups (e.g., used for chicken soup)?
Let us analyze your question. If a tea bag becomes fleishig in a fleishig cup, perhaps it makes the holder fleishig. Then, possibly, another tea bag could similarly become milchig, and treif up the holder and/or have the holder make the tea bag treif. It would then presumably be forbidden to reuse the tea bag. (We will skirt the issue of whether it is a problem of cooking basar b’chalav even if not reusing the tea bag, which should not be a problem here - see Pri Megadim, Siftei Da’at 87:19).
We start by analyzing the status of pareve tea that is used in a fleishig (or milchig) tea cup. In general, the tea can pick up fleishig taste on the level of nat bar nat (twice removed taste, e.g., from the chicken soup into the cup, then from the cup into the tea). The gemara (Chulin 111b) cites a machloket whether hot fish that was placed on a fleishig plate may be eaten with milchig sauce. While many “know” this to be a machloket between Ashkenazim (stringent) and Sephardim (lenient), this is inaccurate. All actually agree that in the gemara’s case, the fish may be eaten with milchig food (Shulchan Aruch, Yoreh Deah 95:1). The stringency of the Rama (YD 95:2)/Ashkenazim is when the pareve food was cooked or roasted in a fleishig pot. In that case, a more powerful taste is transferred than when hot fish is put on a fleishig utensil, where no flame is present. Our case is equivalent to that of the gemara, as putting hot water into a fleishig cup will extract no more than nat bar nat taste, which all agree remains pareve.
However, the matter is not that simple. Many say that even according to the Shulchan Aruch, who says that pareve food with nat bar nat fleishig taste can be mixed with milk, that is only once the nat bar nat food exists. However, one should not purposely put hot pareve food in a fleishig utensil if he plans to eat it with milk, (see Pri Chadash 95:1; Kaf Hachayim, YD 95:1; Yalkut Yosef is lenient). The idea is that we do not rely on nat bar nat on a l’chatchila level. In your case, you are ostensibly asking whether you can use the holder l’chatchila in a way that the foods will remain kosher only because of nat bar nat, raising this problem.
One could claim this depends on the following machloket among Acharonim. Ashkenazim are allowed to put “meat-equipment” pareve food, which they may not eat with milk, into a milchig utensil (Rama, YD 95:2). If you know you in advance you want to put a pareve food into an empty milchig utensil, may you cook it first in a fleishig pot, or is that using nat bar nat l’chatchila? The Pri Megadim (MZ 95:4) and Badei Hashulchan (95:30) rule stringently, and the Bach and Igrot Moshe (YD III:10) are lenient. Your case sounds the same – you want to use nat bar nat to allow a hot food to be exposed both to fleishig and milchig utensils.
Still, there is no problem for the following reason. The stringent poskim discussed cases where the milchig and fleishig utensils were truly that. In contrast, the holder always remains pareve because all tea bags put on it were previously nat bar nat. Therefore, all should agree that one can even set up the situation l’chatchila, by using the same holder.
There are further possible grounds for leniency, especially the fact that the heat sources that might transfer taste from cups to tea bag and between tea bag and holder are once or more removed from a flame. Water poured into the cup is iruy mikli rishon, the tea bag often enters at the point of kli sheni and the hot tea bag is removed from the kli sheni before going to the holder. There is much to discuss on these topics, but the matter is permitted fundamentally anyway. (If the holder lost its pareve status by direct contact with milchig or fleishig food, these issues could be relevant.)
Using Notes Taken on Shabbat or Yom TovI was asked by a talmid of mine who is in college, whether he can use notes taken on Shabbat or Yom Tov by a non-religious Jewish friend?
There are various opinions from the Tannaim down through the poskim on the extent of the prohibition of ma’aseh Shabbat, things produced through the violation of Shabbat (see Ketubot 34a). Rabbi Meir says that if Shabbat was violated by mistake, it is permitted to use the result even on Shabbat; if it was done on purpose, it is forbidden for the perpetrator but permitted for others. According to Rabbi Yehuda, even by mistake, it is forbidden for everyone on Shabbat but permitted after Shabbat for those other than the perpetrator. (There is a third, more stringent opinion, which is not accepted as halacha.) The Shulchan Aruch (Orach Chayim 318:1), following the Rif and Rambam, rules like Rabbi Yehuda. The Gra, like Tosafot before him, rules like the lenient Rabbi Meir. The Mishna Berura (318:7) says that one can rely on the lenient opinion regarding shogeg (that it is permitted for all on Shabbat). In any case, since your talmid is not the perpetrator, it seems clear that it is permitted for him, as all the normative opinions agree that it is permitted for others after Shabbat.
However, there are a few issues to deal with. First, there are opinions that even others need to wait bichdei sheya’asu (the amount of time it would take to get the result if one started after Shabbat). This concept is found regarding a non-Jew who did work on behalf of a Jew. This waiting period is still required even though the non-Jew did nothing wrong and even in cases where the Jew did not improperly tell him to do so (Beitza 24b). Two possible reasons are advanced for this halacha. Rashi (ad loc.) says that it is in order to not benefit from work done on Shabbat. Tosafot says that it is so one not come to ask the non-Jew to do work. The Pri Megadim (Eshel Avraham 225:22) reasons that the issue of benefiting from work on Shabbat should apply to a Jew who regularly violates Shabbat. However, regarding Tosafot’s reason, we do not expect a religious Jew to ask a Shabbat desecrator to do work on Shabbat. The Mishna Berura adds a reason not to say bichdei sheya’asu regarding a Jew – a Jew will not listen to a request to do melacha, and one can argue that this does not apply to those who regularly violate Shabbat (see our Bemareh Habazak I:31). The Pri Megadim leaves the matter unresolved, and there is not a consensus among contemporary poskim (see ibid., where we leaned toward leniency, and Orchot Shabbat 25:(25), who leans toward stringency).
How long would bichdei sheya’asu be in our case? On the one hand, if the student did not take notes at the time of the class, he would not have them, and thus maybe it is forever. However, logic dictates that the information could still be obtained from another student, and it would not take long. Therefore, even if one were to be stringent regarding bichdei sheya’asu, he could take the notes relatively soon after Shabbat.
If the note taker takes money for using his notes, paying him might be forbidden (see Shut K’tav Sofer, OC 50). We will curtail discussion of this point, with the assumption that this is not the case here.
While according to pure halacha, it is permitted to use the notes, there is a preference to use a non-Jew’s notes for the following reason. There is an element of chillul Hashem in taking advantage of chillul Shabbat in a manner that includes personal interaction. It can be seen (to your talmid and/or to his classmate) as if he is saying: “I can’t come to class, but I am glad you are there to help me out.” The aforementioned responsa in Bemareh Habazak rules that it is permitted to take a ride from shul on Motzaei Shabbat with one who drove his car there on Shabbat. However, we said (see also Tzitz Eliezer XIII:48) that it is improper to do so on a regular basis for the above reason. The appropriate level of sensitivity in this regard depends on the people involved and cannot be fully captured in this forum.
To Whom to Sell One’s Apartment?My apartment is for sale, and the apartment’s present renter and my nephew are interested in buying it. Do laws of precedence apply here? If so, does it make a difference if someone offers more than others?
Our response cannot cover all elements of your case without hearing the claims of all affected sides. Our response is intended to inform you of your responsibilities based on your account.
There are two levels of precedence regarding selling land. One is non-binding. In this regard, a relative has precedence over those with no connection to the seller, but a talmid chacham and a neighbor have greater precedence (Shulchan Aruch, Choshen Mishpat 175:50).
A bar metzra or matzran (he who lives on the boundary) has a higher level of precedence, including the possibility of legal action. Specifically, if a sale that ignores a matzran’s rights occurs, he can take the land from the buyer for the sale price (Shulchan Aruch ibid. 6). The is a takana based on doing the “good and straight thing” to give the opportunity to buy property to one who can benefit more than others, classically when he can connect the properties. A matzran’s rights are not intended for cases of innate loss to the seller (Rama ibid. 23). Therefore you have a right to sell to whoever agrees to the highest final price or best conditions for you.
Being a relative does not give such rights. There are no gemarot about a renter, but there is discussion (Bava Metzia 108b) of a similar case (i.e., temporary connection to land), when one has a lien on land (mashkanta). Rishonim and Acharonim debate several questions regarding renters and mashkanta, including whether a matzran has precedence in renting a property next to his and whether a matzran can demand the land already sold to its renter. Regarding continuing to rent the property as opposed to bringing in a new renter, the Taz says the renter has rights, the Pitchei Teshuva (175:27) brings a dissenting view, and the K’tzot Hachoshen (175:3) says it depends if the owner has good reason to want the renter out.
The Shulchan Aruch (ibid. 60) says that a renter’s connection to a property adjacent to his rental is insufficient for him to take it if sold to someone else. What about the sale of the rental property itself (without compromising the renter’s existing rights)? On one hand, combining properties does not apply. On the other hand, being able to acquire property to which he has become accustomed may count as maximization. The Shulchan Aruch (ibid. 63) says that here too, the renter does not have matzran rights.
However, matters are not that simple. Regarding mashkanta, the Rama (ibid. 57) argues on the Shulchan Aruch and rules that the lender, who holds the lien of the property, can claim the purchase rights. The S’ma (175:116, cited by Netivot Hamishpat 175:67) claims that the Rama likewise argues with the Shulchan Aruch and gives purchase rights to the renter on the rental property, as well. In some ways, a renter is better than mashkanta based on the concept that rental is like a sale (Bava Metzia 56b). The Pitchei Teshuva (175:28) cites several who assume that the Rama does not argue regarding rental (the main claim is that a lien is more significant long-term than a rental). On the other hand, the Shulchan Aruch’s author (see Beit Yosef, CM 175) does not totally reject matzran rights to a renter but stresses that it is not strong enough to extract property from one who bought the land. Since you are asking about the proper actions before having sold, there is reason to give the renter preference.
Therefore, you have a choice between a relative’s weak halachic preference and a machloket about a renter’s possible full bar metzra rights along with the likelihood of some level of his precedence. This seems to be a case where discussion can be helpful. The parties should know that while you care about the interests of each, neither seems to have a clear halachic advantage over the other. We hope you will be able to resolve things without hurt feelings.
How Many People Together to Start Shemoneh Esrei? – part III daven at a small minyan at which some people daven slower than the rest and others come late. We do not always have ten ready to start Shemoneh Esrei with the chazan. Should we wait for ten, or is six enough?
[Last week we saw the main sources and arguments of the sides on this matter.]
Several important poskim say that six davening in the presence of another four (= 6+4) is considered tefilla b’tzibbur, based on their understanding of the Rambam and Magen Avraham. This includes Rav Ovadia Yosef (Yechaveh Da’at V:7), Minchat Yitzchak (IX:6,7), Shevet Halevi (XI:20), Beit Baruch (19:3), and B’tzel Hachocma IV:135). Several also report this to be common practice.
The stringent camp includes (in addition to Rav M. Feinstein, see last week) Halichot Shlomo (8:5, in the name of Rav Auerbach), Teshuvot V’hanhagot (I:102, also citing the Brisker Rav), and Rav Y.C. Zonnenfeld (Salmat Chayim, OC 52). The contemporary Ishei Yisrael (12:7) and Tefilla K’hilchata (8:71) treat it as a machloket with a slight leaning toward stringency.
The primary disagreement between the two sides may be more conceptual (is it called tefilla b’tzibbur?) than practical (may one daven in that manner?). For example, the Minchat Yitzchak (IX:7), a member of the lenient camp, says that ten starting together is preferable to 6+4. On the other side, Igrot Moshe (Orach Chayim III:16) relates to 6+4 as a reasonable option in some cases. After all, tefilla b’tzibbur is not an absolute obligation and requires the investment of only moderate efforts (see Shulchan Aruch, OC 90:16). There are many questions discussed (including in this column) of preference between full tefilla b’tzibbur and other tefilla enhancers.
There are also levels of connection between tefilla and tzibbur. It is best to start Shemoneh Esrei exactly with the minyan, but starting later is also significant (see differences between Igrot Moshe, OV III:4 and B’tzel Hachochma IV:3). Starting Shemoneh Esrei as chazarat hashatz begins has value but may not be full tefilla b’tzibbur (see this column, Vaeira 5773). Davening even in an empty shul has value, as does davening at home at the time of davening in shul. 6+4 may also have a status of significant but incomplete value. Teshuvot V’hanhagot (ibid.) calls 6+4 tefilla b’tzibbur and ten together tefillat hatzibbur. Igrot Moshe (ibid. 29) says that the presence of ten men draws the Divine Presence (see Berachot 6a), but only with ten davening together are the tefillot accepted in the best way (see ibid. 8a).
The Rambam (see last week) seems to view 6+4 for chazarat hashatz as ideal tefilla b’tzibbur because chazarat hashatz’s importance exceeds that of a minyan for silent Shemoneh Esrei. The Chatam Sofer (Kovetz 4) holds this, whereas Igrot Moshe (OC III:9) denies such an opinion. The Rambam thus can agree that 6+4 counts only for chazarat hashatz but say this suffices. If so, for the majority, who prefer silent Shemoneh Esrei to chazarat hashatz, the Rambam is not a proof. It might also work only with a full nine people answering every beracha and only for those who answer (see Kinyan Torah Ba’halacha IV:5). It also would not help at Maariv.
So, there is relative value in being stringent, but at what price?
Philosophically, approaching prayer united with the community is crucial (see Ein Ayah, Berachot 1:48,89). While it is hard to prove that ten starting Shemoneh Esrei together are a condition for unity, the Talmudic sources stress maximizing these elements. Therefore we urge the following. A minyan that has time for a complete tefilla experience (e.g., a yeshiva), should wait as long as necessary for ten to start together. Waiting can also remind individuals to come early enough and/or learn the halachot of skipping. A minyan that needs to stick to schedule (e.g., people must be on time to work) and/or is harder to educate may rely on the lenient opinions rather than tack on minutes. (One should try to internalize his responsibility for a minyan’s existence/proper functioning (see Rama, OC 55:22).)
How Many People Together to Start Shemoneh Esrei? – part II daven at a small minyan at which some people daven slower than the rest and others come late. We do not always have ten to start Shemoneh Esrei with the chazan. Should we wait for ten, or is six enough?
[We will divide our discussion into two. This week we will analyze the main sources and logic of the competing positions.]
There are two classical sources that are cited as the source that six men reciting Shemoneh Esrei in the presence of another four men in the room is considered tefilla b’tzibbur (davening with a minyan). The Rambam (Tefilla 8:4) describes chazarat hashatz, with everyone listening to a chazan, as the main element of tefilla b’tzibbur and then says that it is sufficient for six of the participants to be people who have not yet davened. We apply the rule of following the majority to set the character of the whole, and thus this is considered a minyan. Many see this as evidence that the Rambam holds that six people davening in the presence of ten is tefilla b’tzibbur (see Yechaveh Da’at V:7).
The Magen Avraham (69:4) says that while chazarat hashatz can be done for even one person who has not davened, it is preceded by a silent Shemoneh Esrei only if six men are presently davening. Several Acharonim (including Minchat Yitzchak IX:6, based on Shulchan Aruch Harav 69:5, and Mishna Berura 69:8) understand that the reason the silent Shemoneh Esrei before chazarat hashatz is justified is because it is considered tefilla b’tzibbur. Again, we ostensibly see that six is enough in this regard.
Apparently supporting the other camp, the Chayei Adam (19:1) says that the main element of tefilla b’tzibbur is having ten men davening Shemoneh Esrei together, as opposed to the misconception that a minyan for Kaddish, Kedusha, and Barchu suffices. This seems to indicate that six daveners plus four others present is not a fulfillment of tefilla b’tzibbur. Perplexingly, the Mishna Berura cites without comment both the Magen Avraham/Shulchan Aruch Harav (69:8) and the Chayei Adam (90:28). Members of the “lenient camp” explain the Chayei Adam as stressing that Kaddish/Kedusha/Barchu is not enough; by ten, he meant a majority of the ten men davening in the presence of the others.
The stringent camp is perhaps best represented by a compelling (in my humble opinion) set of arguments by Rav Moshe Feinstein (Igrot Moshe, Orach Chayim I:28-30). We start with halachic logic. The idea of six counting as a minyan, based on a majority, makes sense when there is a full quorum involved in the matter at hand, but a minority is lacking in some regard (e.g., they already fulfilled their obligation). Then we say that since the majority of the group is valid, the missing element can be overlooked. We turn to the prototype of following majority, in a court, as an example. While when three dayanim arrive at different decisions, we follow the two, when there are only two dayanim or one of the three dayanim is unable to arrive at any decision, majority cannot be used. So too, when six people are davening Shemoneh Esrei and four are taking off their tefillin after the early minyan, there is no minyan involved in tefilla and thus no tefilla b’tzibbur.
Rav Moshe (ibid. 28) points out that the Rambam is not relevant to our discussion, as he refers to chazarat hashatz in which all ten are actively involved. After all, listening to the chazan constitutes full participating in chazarat hashatz. Following the majority just solves the issue of the weaker connection of those who already davened. (Shulchan Aruch, OC 124:4 supports this distinction.) The Magen Avraham (/Mishna Berura) can be understood as being based on the quality of chazarat hashatz. If six obligated plus four others are doing so, it is complete enough to justify it being preceded by a preparatory silent Shemoneh Esrei, even though its participants are not credited with tefilla b’tzibbur.
Next week we will put things into halachic and philosophical perspective and give basic recommendations.
Place of Chanuka Candle Lighting at a GuesthouseMy extended family will be at a guesthouse for Shabbat of Chanuka. They have told us that we cannot light Chanuka candles in the rooms we will sleep in or our family’s small, separate dining room, but in the main lobby with the rest of the guests. Can we fulfill the mitzva that way, or must we find an alternative?
While one usually lights Chanuka candles in his own home, the gemara (Shabbat 23a) does discuss lighting at a guesthouse (achsenai). A guest takes part in the lighting there, at least by contributing toward the oil, unless his wife lights on his behalf. The Shulchan Aruch (677:1) says that in any case, if the guest has his own place to sleep, he should light there so that it does not appear that the occupant of those quarters does not light candles. The Rama (ad loc.) says that in such a case, since people light inside nowadays and people will not be suspicious, the place one lights is where he eats. A precedent is the halacha that regarding matters of eiruvin, a person’s main place of inhabitation is where he eats, not where he sleeps (see Taz, OC 671:2).
Contemporary poskim have discussed various cases where it is less clear that the eating place is the best place. Yeshiva students living in dormitories is perhaps the most discussed. The Chazon Ish is among those who say that the yeshiva dining room is indeed the best place. However, many point out drawbacks. First, the dining room, being used by all students, lacks the personal connection to the individual that exists in his home or even dorm room (see Igrot Moshe, Yoreh Deah III:14). Also, students are usually allowed in the dining room only for short periods during the day (p’sak of Rav Abba Shaul). In contrast, one’s dormitory room is his all the time (even if a healthy, motivated talmid is in the beit midrash almost all day).
Your scenario might provide a test-case between the reasons. Over Shabbat, your small dining room is set aside for your family, which could make it ideal for most poskim. However, there is a possible drawback if, as it is likely it will not be open to you the whole day. Still, that is to a great extent to keep the room in good order for your next meal, and also on Friday night, it will certainly be available to you throughout the crucial time the Chanuka candles should be lit. While one might claim that the rooms you sleep in are as good or even better, the hotel will undoubtedly not give in (for excellent reason) to have candles burning in several unattended rooms. (During the week, it might work to promise to stay put for half an hour and then extinguish them). In short, if you can make a safe arrangement and get permission to light in your dining room, that is excellent.
At first glance, the lobby seems problematic, as it is neither the place of sleeping nor eating. However, important poskim (including Rav S.Z. Auerbach – see Halichot Shlomo 14:8 – and Shevet Halevi (III:83)) making the following cogent point. The discussions regarding the place of sleep vs. eating refer to the choice between places in different buildings (e.g., married children eating with parents and sleeping at home). However, when all major home activities occur in one premises, even a large one like a yeshiva, any location on those premises which they frequent can work. After all, it is accepted and acceptable to light in one’s home in the living room, for example, even if no one eats or sleeps in that room. We would say that the greater the extent to which the lobby is open to and used by the guests, all the more so if it is adjoining the dining room, the stronger the logic of being able to light there. If you visit the candles during the meal, that only improves the situation.
In most cases, we would suggest to light with a beracha in the lobby, if you don’t get permission for the private dining room. (If someone wants to be machmir, he can appoint an agent to light at a safe and appropriate place in his own home; it is still worthwhile to light, at least without a beracha, in the lobby.)
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