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Answering Monetary Questions – part IIQuestions of consistency on this topic go way back. Many of the “fathers” of the prohibition to answer questions about conflicts without hearing both sides seem to violate it in other teshuvot. Perhaps the most important compilation of distinctions is found in the Pitchei Teshuva, Choshen Mishpat 17:11, upon which much of the below is based.
First, it is standard, recommended practice for dayanim who are unsure of the proper ruling to send the case’s details to get a greater authority’s opinion (Shulchan Aruch, CM 14:1). The dayanim are responsible for presenting the claims accurately and ruling; the expert may rely on them.
The Me’il Tzedaka (53) cites sources and a broad practice for a talmid chacham to answer when he knows the querier and is confident he wants to know the truth and will not formulate false claims. (The Me’il Tzedaka rejects this leniency unless the respondent believes the case does not apply to the querier.)
Other sources for leniency refer to various cases with great need to get involved, such as: 1. The information is needed to save people from sin (Shut Maharashdam, Yoreh Deah 153). (There are many teshuvot about poskim who got involved when there were suspicions about a shochet.) 2. Someone was attacking the integrity of a talmid chacham (Shvut Yaakov III,99). 3. The opinion was needed for the mitzva of helping a widow (Shut Maharshal 24).
Another type of case where some permit discussion is where the question relates to general halachic issues and not to factual background about which everyone agrees (Shut HaRama 112). In a related justification, poskim will often also say that they are not suggesting a ruling for the case, but are just explaining gemarot or general halachic issues to interested parties, and it is not their responsibility what conclusion those who now understand the halachic topic will say about their case.
The Pitchei Teshuva also cites an exception when the question is about which beit din has jurisdiction. The logic is that the alternative of addressing the matter formally before beit din does not apply if they cannot agree on a beit din.
While some of the cases where we are lenient are based on one of the above, our most common justification to express tentative opinions is in cases where there are not clear litigants. (Most of the sources discuss those who are or are expected to be litigants.) For example, a person does not want to go to beit din and is happy to pay or forgo the money if he is wrong. We often say: “We cannot tell you that you are right, but only if you are wrong” (see Living the Halachic Process, vol. I, J-1), and even then only when we know the person or have indications that he is sincere on this point. When it appears that someone wants to adjudicate, and we feel that he will create enemies and head/heart aches with a small chance of winning, we often will advise in general terms (and with a lack of certainty) that he would be wise to drop the matter.The above are some of our guidelines. We request of those who turn to us: if you believe you belong to the exception, not the rule, and we are not convinced, respect our right to be more machmir than you were expecting or are used to. We think this is proper for an organization serving anonymous people about whose circumstances we know little and which runs a Beit Din which pursues ethical excellence, including impartiality, even when the advice-seeker wants answers.
Answering Monetary Questions – part IPeople often ask us questions about financial disputes they are involved in. We respond that we do not get involved in practical monetary situations that affect another side whose view we have not heard. Most take this in stride. Others take offense. One pointed out that there are monetary discussions on our site. So, I decided to discuss our approach in more detail.]
Our policy is based on the Rama (Choshen Mishpat 17:5, based on the Rashba III:98 and the Rivash 179). The Shulchan Aruch (ibid.) says that one may not listen to the claims of one litigant while the other side is not present. The Rama says that this refers to one who is a dayan in this case. However, he continues that a talmid chacham should never express even a tentative opinion (“if indeed …”) on a case without hearing both sides.
The first reason cited is that the presentation might teach the litigant which claims to make, including false ones. Our contemporary experience teaches us the following. While the sources speak of falsehood, it is not limited to premeditated lying, but includes describing the nuances of a gray situation in a slanted manner. Even honest people can do this under the pressure of litigation, where significant money and stature are on the line.
The Rama also explains that due to what surfaces in the trial, the ruling may appear to contradict the talmid chacham, which could discredit him. We note that the concern is not just for the non-dayan’s credibility. Our beit din’s staff have received post-ruling complaints: “I asked my rabbi about the case, and he said beit din was wrong, so the dayanim are either incompetent or biased.” Of course, two rabbis can have different views without either being incompetent or biased, which is why we bother having three dayanim. The disgruntled litigant does not care that we heard and interrogated both sides and spent dozen of hours analyzing and researching, while he may have asked his rabbi while he was folding up his tefillin. (Since we offer an option of appeal (with an added fee to avoid it being automatic), we do not object to a litigant showing our ruling to a talmid chacham for his advice on whether it is worthwhile to appeal.) The point is that even provisional statements made prior to adjudication can be used by otherwise respectable and respectful people to decide that they are right and that there is something wrong with anyone (litigant, dayan, or whoever) who does not agree with what they understood from what they were told.
Our experience makes us concerned about another issue that the Rama does not discuss (it is likely that he was not addressing that case – see part II). There are times that the sides prefer to avoid the trouble of litigation, which we applaud on fundamental and practical grounds. The well-intentioned “non-litigant” may ask us or another rav the question, as he honestly but subjectively sees it, and may even be willing to inform the other side if we said he was wrong. However, if we answer that “based on your description, you are right,” since he knows that he is not a liar, he is likely to say, “I asked a dayan, and he said I am right.” Now, the other side is at a disadvantage. Is he to question the dayan or call his neighbor, friend or business partner a liar? Will he know and choose to say: “If the dayan did not hear me describe the case in my own words, he could/should not have said, ‘You are right’”?
Two of our “hats” are: an “Ask the Rabbi” service, where we try to be responsive to all, and a beit din, where we make very strong efforts to be ethical, impartial, and cautious. (One fear is that our present anonymous querier will be our future litigant.) The correct policy, in our opinion, is to almost always refuse to answer questions of one side that have a hint of being related to practical dispute resolution. We regret that some people are resentful; that is part of the price of being principled.Next week we will discuss some exceptions to this rule.
Eating before KiddushAs a nursing mother, I sometimes get very hungry or thirsty between when I light candles and when my husband comes home from shul. When this happens, is it permitted for me to eat or drink?
We start with a look at the halachic indications when there are not extenuating circumstances. Then we can look for the best solutions based on need.
The gemara (Pesachim 106b) cites a machloket on whether one who ate before making Kiddush is able to make Kiddush afterward. We accept the opinion that he may (Shulchan Aruch, Orach Chayim 271:4). However, all agree with the implication that it is wrong to eat, even small quantities, before Kiddush (ibid.).
Often, prohibitions on eating do not apply to drinking water, including before Havdala (ibid. 299:1). The Rosh (Shut 25:2) explains that due to the concept that any eating done on Shabbat has importance, it is forbidden to drink water before Kiddush. However, there is a machloket whether this concept applies during twilight, and thus it is not clear whether one may drink water at that time (Da’at Torah, OC 271:4).
When does the basic (Rabbinic) prohibition begin? The poskim assume that once it is possibly Shabbat (from sunset) or one accepted Shabbat, it is forbidden to eat (Bach, OC 271; Mishna Berura 271:11). When women light Shabbat candles, they accept Shabbat (Rama, OC 263:10). Therefore, most assume that it is forbidden for a woman to eat or drink after lighting candles before making Kiddush (Shemirat Shabbat K’hilchata 43:45).
The Dagul Meirevava (to Shulchan Aruch, OC 261:4) says that while davening Ma’ariv makes it Shabbat in regards to all Shabbat prohibitions, it is questionable whether other forms of accepting Shabbat early obligate one to adhere to all Rabbinical laws (Shulchan Aruch, OC 393:2). The Minchat Yitzchak (VIII:18) entertains the possibility that it would be permitted to eat after candle lighting before Ma’ariv. However, he is unwilling to be practically lenient without the presence of other reasons for leniency (e.g., the case he discusses, where one is drinking water to swallow medicine). The Shemirat Shabbat K’hilchata (43:46) is willing to be lenient for a woman who is thirsty to drink water and, in a case of need, tea.
As mentioned, candle lighting likely makes it forbidden for a woman who lit to eat because, with it, she accepts Shabbat. It is generally accepted conceptually that a woman can have explicitly in mind to not accept Shabbat with her lighting (Shulchan Aruch and Rama, OC 263:10). In practice, because this is not a unanimously accepted possibility, poskim rely on such a condition only in cases of significant need (Mishna Berura 263:43). Along these lines, Shemirat Shabbat K’hilchata (43:47) allows a woman who is feeling weak or who is nursing to eat as she likes after candle lighting if she made that condition.
However, these leniencies of the Shemirat Shabbat K’hilchata’s are only if she finishes eating before sunset. What if a woman gets particularly hungry after that, especially if she is nursing? While there are significant leniencies for nursing mothers so that their milk supply should not be affected, waiting an hour is unlikely to affect that. However, she is still the type of person who, in many cases, may have unusual tza’ar if she cannot eat when the feeling hits her. Nevertheless, in almost all cases, it is hard to be lenient, and that is because she almost always has a great alternative – to make Kiddush before her husband comes home (see Minchat Yitzchak ibid.). There is no halachic reason not to do so. Even if it is not accepted in the family, hopefully a simple discussion with her husband, with the pertinent information, should convince all that her making Kiddush is better than her eating or drinking after sunset before Kiddush. On the other hand, every rule has exceptions, and when there is an acute need, one can be lenient soon after sunset as well, especially to drink any amount of water.
How Many Eggs Should be Boiled Together?When making hardboiled eggs, may one cook one or two eggs or must there be at least three? Also, does it make a difference if there is an even or odd number?
There are sources and traditions about boiling at least three eggs together. While at first glance the practice flies in the face of halachic logic, the laws of blood spots in eggs are unique, as we will see.
A blood spot in an egg can be the beginning of an embryo, in which case the egg is forbidden, while there is a machloket if it is based on Torah law or Rabbinic law (see Tosafot, Chulin 64b; Beit Yosef, Yoreh Deah 66). If the blood comes from the hen, the blood is forbidden (Rabbinically), but the egg is permitted and can be eaten after the blood is removed (Shulchan Aruch, Yoreh Deah 66:2-3). Poskim provide physical signs of when it is more likely that the blood belongs to one category or the other, but after the egg is handled, it can be difficult to recognize these signs.
We assume that in a case where only the blood is forbidden, there will be 60:1 ratio of permitted material to forbidden to nullify (bitul) the blood (see Darchei Teshuva 66:40). However, if the whole egg is forbidden, bitul requires 60 times more permitted material in the pot against the volume of the egg, and three eggs will not help too much.
There are times that bitul takes place by means of a simple majority. When the minority forbidden food and the majority permitted food are of the same type (min b’mino) and they are “combined” yavesh b’yavesh (separate solid items that are intermingled only in that the identity of the forbidden food is not known), all the pieces are permitted (Shulchan Aruch, YD 109:1). However, this will not help for two kosher and one non-kosher eggs being boiled together because boiling causes their tastes to mix, making a ratio of 60:1 necessary for bitul (ibid. 2).
Rather, the logic of having three eggs is based on the following Rama (YD 66:4). The Shulchan Aruch (ad loc.) discusses cases of opened raw eggs that have been mixed together and blood was found, and he rules how much has to be thrown out in each case. The Rama adds that this is only when the signs of the blood indicate that the entire egg is forbidden. However, if there is a doubt whether the whole egg is forbidden, we “permit the mixture, since in any case, one [forbidden egg] is batel in two [permitted eggs].” The Taz (ad loc. 5) explains that even though in lach b’lach (physical mixtures, like the contents of eggs mixed together) a 60:1 ratio is needed for bitul, the Rama is more lenient for an egg with a blood spot. The reason is that he holds that the egg is at worst forbidden Rabbinically, and when the type of blood spot is questionable, we do not forbid the mixture when a majority of it is permitted. This leans on the fact that the requirement of 60:1 for lach b’lach of min b’mino is itself only a Rabbinic law (a majority suffices by Torah law).
The Yad Yehuda (66:7) explains the practice in question as follows. With two eggs boiling, there is not a permitted majority for bitul if one has a blood spot, and the taste coming from the forbidden egg would render the other egg not kosher. The water in the pot does not help because it is of a different food type. Therefore, three eggs will help you if you find a blood spot after peeling the boiled eggs. The more eggs, the better the chance of a majority, and odd numbers help slightly statistically. The number of eggs is thus not required but suggested.
Almost all egg producers separate roosters and hens, rendering the chances of a blood spot coming from an embryo and forbidding the entire egg very small. Igrot Moshe (Yoreh Deah 1:36) says that since eggs are cheap, we should, as a chumra, throw out the egg for any blood spot. However, he says that we need not throw out another egg cooked with it or require hagala for the pot in which a blood-spotted egg was boiled. While some continue the old practice of using three eggs (see Teshuvot V’hanhagot II:384), this is not halachically called for.
The Beracha on Making a Roof-Top FenceThe investment team I am part of is currently renovating a building we own, including making a roof usable for tenants. The roof has a fence (ma’akeh), but we have contracted a non-Jewish company to remove and replace it. Can I make a beracha on the new fence even though non-Jews are installing it? Does one make a beracha on a fence that replaces a previous one?The investment team I am part of is currently renovating a building we own, including making a roof usable for tenants. The roof has a fence (ma’akeh), but we have contracted a non-Jewish company to remove and replace it. Can I make a beracha on the new fence even though non-Jews are installing it? Does one make a beracha on a fence that replaces a previous one?
Let us start with the bottom line. You should not make a beracha. You have identified some of the several doubts about the need for a beracha. One does not make a beracha unless there is a significantly better than even chance it is called for (safek berachot l’hakel), and that is not the case here. We will take a quick look at some of the indications on various doubts.
There is a machloket Rishonim whether one ever makes a beracha on the mitzva of ma’akeh. The reasons against a beracha include the following: it is done to remove danger, rather than being a classic positive mitzva; it is mitzva that is rooted in natural logic; there is a concern that the one building the ma’akeh will not carry through. However, despite the principle of safek berachot l’hakel, there is enough consensus of Rishonim and Acharonim to generally justify a beracha (see Yalkut Yosef, Sova Semachot p. 676).
A non-Jew is not able to be a halachic agent, certainly including regarding doing mitzvot on behalf of a Jew (Kiddushin 41b). Therefore, your non-Jewish workers’ actions ostensibly cannot fulfill the mitzva on your behalf. It is not that the ma’akeh is invalid and needs to be redone, as it suffices that the danger was obverted. However, a beracha, as well as much of the positive mitzva opportunity would be missing (see Menachot 42b).
On the other hand, the Machaneh Ephrayim (Shluchin 11) says that if the non-Jew is your salaried worker, we apply the rule that a “the worker’s hand is like the employer’s hand” (Bava Metzia 10a). This enables the Jewish homeowner to fulfill his mitzva through his non-Jewish employees’ actions, and a beracha is appropriate. Many Acharonim reject the Machaneh Ephrayim’s thesis. Their main claim is that the rule that a worker is like his employer does not apply to a non-Jew’s performance of mitzvot on behalf of his Jewish employer, and this is the stronger position. Certainly there is enough doubt to eliminate a beracha in such a case (Yabia Omer IX, Choshen Mishpat 10). Furthermore, the Pitchei Teshuva (CM 427:1) says that the Machaneh Ephrayim applies only to salaried workers and not to contractors (which you are talking about).
You imply that there are other investors. The mitzva of ma’akeh applies even when the property is co-owned (Chulin 136a). However, not all agree that this is true when the partners include non-Jews, and Rav B. Zilber (Birur Halacha, p. 249) claims that this is enough reason to not make a beracha in such a case.
The fact that the fence will replace an existing one raises an interesting question. There is discussion on whether one who switches one mezuza scroll for another has to make a new beracha (see Yabia Omer II, Yoreh Deah 17), as well as similar discussions regarding tzitzit and tefillin. There are major similarities between the cases but also possible distinctions (see Avnei Shlomo (Bloch) p. 41). The matter may also depend on how long the interim period with no functioning ma’akeh will be or on whether the roof required a ma’akeh before renovations make the roof more accessible.
Finally, it appears that before you got involved, there were already people renting apartments in the building, in which case, the tenants were obligated in ma’akeh (Bava Metzia 101b). The Minchat Chinuch (#546) says that although renters are obligated, the landlord might also be obligated. However, others say that the Rabbis uprooted the mitzva from the landlord and gave it to the renters. According to them, although you could argue that the renters are making you an agent for making the ma’akeh, it is still not simple that, if there were a beracha, you would be the one to make it.
Tisha B’Av Pushed Off Until SundayWhat is done differently this year, when Tisha B’Av falls on Shabbat and is pushed off to Sunday?
Seuda Shlishit: The baraita (cited in Ta’anit 29a) says that one may eat an extravagant meal on Shabbat even when Tisha B’Av falls on Motzaei Shabbat. The Tur (Orach Chayim 552) cites minhagim that one is allowed and would do best to curtail the Shabbat meal. This is especially so at seuda shlishit, which is, in effect, the seuda hamafseket (the last meal before Tisha B’Av, which usually has strong elements of mourning). However, these considerations are countered by the need to avoid displaying mourning on Shabbat. Therefore, there are no real restrictions, even at seuda shlishit (Shulchan Aruch, OC 552:10). However, the mood should somewhat reflect the coming of Tisha B’Av, as long as it does not bring on clearly noticeable changes (Mishna Berura 552:23). One important halachic requirement is that one must finish eating before sunset (Rama, ad loc.(.
Havdala: One says Havdala in tefilla or separately with the declaration of “Baruch Hamavdil…,” which enables him to do actions that are forbidden on Shabbat. Havdala over a cup of wine is done after Tisha B’Av (Shulchan Aruch, OC 556:1). If one forgot to mention Havdala in Shemoneh Esrei, he does not repeat Shemoneh Esrei even though he will not make Havdala over wine until the next day. Rather, he makes the declaration of Baruch Hamavdil (Mishna Berura 556:2). Unlike Havdala during the Nine Days, where we try to give the wine to a child (Rama 551:10), after Tisha B’Av an adult can freely drink that wine (Mishna Berura 556:3). The beracha on besamim is not said this week. On Tisha B’Av it is not appropriate, because it is a reviving pleasure, and one can make this beracha only on Motzaei Shabbat.
The beracha on fire is specific to Motzaei Shabbat, is not a pleasure, and does not require a cup. Therefore, we recite the beracha on fire in shul after Ma’ariv, before reading Eicha (Mishna Berura 556:1). There are those who say that a woman should, in general, avoid making Havdala. A major reason is the doubt whether a woman is obligated in the beracha on fire, which is not directly related to Shabbat and thus is a regular time-related mitzva, from which women are exempt (Be’ur Halacha 296:8). Therefore, it is better for one whose wife will not be in shul at the time of the beracha to have in mind not to fulfill the mitzva at that time, but to make the beracha on the fire together with his wife (Shemirat Shabbat K’hilchata 62:(98).
Taking off shoes: As mentioned, one may not do a noticeable act of mourning before Shabbat is over. While finishing eating before sunset or refraining from washing need not be noticeable, taking off shoes is. There are two minhagim as to when to take them off: 1) One waits until after Shabbat is out, says Hamavdil, and then changes clothes and goes to shul. One can do so a little earlier than the regular time listed for Shabbat ending, which is usually delayed a little bit beyond nightfall to allow for a significant extension of Shabbat. The exact time is not clear and depends on the latitude of one’s location. It is advisable to start Ma’ariv a little late in order to allow people to do so and make it to shul (ibid.:40; Torat Hamoadim 9:1), unless the rabbi has ruled that everyone should take the following approach. 2) One takes off his shoes after Barchu of Ma’ariv. One who takes the second approach should bring non-leather footwear and Eicha/Kinot to shul before Shabbat to avoid hachana (preparations for after Shabbat). However, if one uses these sefarim a little in shul before Shabbat is out, he may bring them on Shabbat (Shemirat Shabbat K’hilchata ibid.:41).
Restrictions after Tisha B’Av: Since much of the Beit Hamikdash burned on 10 Av, the minhag developed to not eat meat or drink wine on this day. Some are stringent on laundering, bathing, and haircutting until midday of the 10th. On a year like this, only meat and wine are restricted and only at night (Rama, OC ibid.; Mishna Berura ad loc. 4).
Altering a Neder Made at a Time of NeedYour recent article about hatarat nedarim reminded me about my related question. I was recently in a dangerous situation involving an Arab mob. At the time, I decided that if we would make it through safely, I would stop situation X. [Ed. Note – we decided not to share with the public the specific matter.] Baruch Hashem, no one sustained worse than minor injury, and I am happy to show my thanks to Hashem. However, X contains three elements – A and B are harmless, positive, and important to me. It is C about which I have had misgivings for some time. Had I had more time to think clearly, I would have committed to refraining just from C, but under pressure, X in general came to mind. I am willing to live up to any obligation, but may I do hatarat nedarim or otherwise switch the neder to something more practical or just refrain from C?
We are glad you are well, b’chasdei Hashem. We praise your spiritual instincts under pressure and your attitude now, which are signs of a yerei’at shamayim. Although generally we frown upon making nedarim, an eit tzara (time of acute need) is likely different (see Tosafot, Chulin 2b).
The Rama (Yoreh Deah 228:45) rules that one may not do hatarat nedarim on an oath taken with the hope of extricating himself from an eit tzara (not all agree – see Shut Maharam Mintz 79). He accepts (see Shut HaRama 103) the explanation of Shut Binyamin Ze’ev (266) that it is based on the rule that one must not do hatarat nedarim on a neder he made to receive a favor from another person (Rama, ibid. 20, which is the main issue in our recent article (Korach 5776)). In other words, one cannot ask someone for a favor with a promise to “pay” by a neder commitment and then back out after getting what he wants, including or especially if the someone is Hashem. (One could have argued that, as opposed to one’s friend, Hashem can always take back what He gave. Some indeed say that, irrespective of permitted/forbidden, it is dangerous to “play games” with Hashem by undoing such oaths – R. Yehuda Hachasid, quoted by Yam Shel Shlomo, Gittin 4:40 and others).
The Rama (ibid.) and others do permit hatarat nedarim on nidrei eit tzara when necessary to facilitate a mitzva or when there is great need. However, for most people, X does not qualify as either.
The major factor for leniency is that you apparently did not verbalize a neder but just thought about it. In most cases, nedarim are effective only when verbalized, with tzedaka being an exception according to many (Rama, YD 258:13). A strong majority of poskim say that thoughts do not create a neder obligation for other mitzvot (see Aruch Hashulchan, YD 258:39; Kol Nidrei 59:1). In your case, refraining from A and B is not a mitzva.
There is an opinion (Nishal David, YD 17) that a neder by thought takes effect during an eit tzara, based on a pasuk (Daniel 10:12) that Hashem already responds to a plea when it is in one’s heart. However, the opinion that it is not halachically binding until verbalization (Yehuda Ya’aleh I:333, also based on p’sukim) is more convincing. Even according to the stringent opinion, the thought must be clear and final (Aruch Hashulchan, ibid.). Most discussions of eit tzara refer to drawn out situations, like illness. In contrast, you, while faced by a dangerous mob, thought fleetingly about X but, given a moment to gather your thoughts, would have specified C. Therefore, all should agree that thought alone is not binding regarding X.
While there is room to be lenient fully, it seems the proper Jewish thing is to keep what you really intended – eliminate C, which you believed is right and appropriate when asking mercy from Hashem. If A and B are positive parts of your life, keep them. Hatarat nedarim on them is worthwhile (the Rama, YD 228:45 says it works even when it should not be done; the Shach 228:108 argues). Adding tangible thanks to Hashem, like accepting (bli neder) a different, practical good thing or giving extra tzedaka (see Kol Nidrei 7:12), is also positive.
May your prayers always be answered.
Halachic Ramifications of Ad-blocksI went on a religious website, and it detected that I have an ad-block program. They gave me a choice to disable my ad-block or continue while violating geneiva because ad-blocking takes away their parnasa. Would it be forbidden to continue with ad-blocking?
(We are not addressing the desirability of avoiding ads, some of which are not appropriate; hopefully a religious site’s ads are appropriate.) At first, this seems to depend on the broad question of intellectual property rights. Reuven produces something of value to the masses and, due to financial considerations, attaches conditions, classically not to copy even if one legally bought the object with the content (e.g., book). Here, the question is making viewing a site’s contents conditional on allowing advertisements on your screen.
Much has been written on the topic (see articles in Techumin VI). Our opinion upholds the halachic basis for guaranteeing such abstract rights in various contexts (see Living the Halachic Process, II, J-1; Techumin XXXII: p. 233-237). In short, there are three main issues, none of which are both unanimously held and apply in all circumstances, that can forbid using someone else’s “creation” freely. 1. A form of theft even without an object being taken. 2. A requirement to pay for benefit received from another’s property (neheneh). 3. Dina d’malchuta dina – the law of the land upholds many of the creators’ claims to ownership.
Ad blocking causes great losses to many website owners. Historically, many technological innovations, including the internet itself, have enriched some and impoverished others. Upholding intellectual property rights also does not support every claim by every “owner,” so let us analyze.
Let us start with #3. As far as we have seen, ad-blocking is not illegal, and we do not know if the site’s warning is legally significant. Thus, it is questionable whether dina d’malchuta will forbid using the site with ad-block.
Neheneh is complex to apply in this case. We rule that zeh neheneh v’zeh lo chaser (the user gains without the owner losing) is exempt (Shulchan Aruch, Choshen Mishpat 363:6). However, if the owner incurs any damage from the usage, the user has to pay the entire benefit he received (Tosafot, Bava Kama 20b; see Noda B’Yehuda II, CM 24). In this case, the site owner apparently sustains a loss when people use the site, in that it slows down the server, making the site less attractive to those who bring in revenue. While each individual person’s impact is negligible, the owner can argue that he treats ad-block users as a group he is unwilling to allow “for free.” On the other hand, it is possible that users cause more gain than damage even with ad-block (analysis is beyond my expertise), just that the site owner wants to force them to provide greater advantage. This would preclude a neheneh obligation (see Bava Kama 21a). If it is a site with ample free alternatives, there may not be enough user benefit to pay. Therefore, it is hard to be conclusive on this matter.
While we are not confident the issues above make it forbidden to use ad-blocking against the pleas of the website, we believe the owner can make it forbidden to use it. Even in a case of zeh neheneh v’zeh lo chaser, if the owner says up front that he forbids usage, it is indeed forbidden (see Shulchan Aruch, ibid.). At first glance, this restriction applies only according to those (far from unanimous) opinions that intellectual property is owned in a manner that stealing applies. However, here the owner is in a stronger halachic position because the user is connecting to a physical server, owned by them or, usually, by a web host whom he pays for their services. Therefore, usage is like using remote control to use someone’s equipment against his will, which is forbidden.
Therefore, our tentative position is that an owner can forbid you to use his site. (What it means if they do not prevent access but say it is forbidden is unclear.) We invite feedback on different elements of this new topic.
Tefillin in Pre-Dawn HoursI work at a hospital and, some days, I am unable to wear tefillin during the day, but only pre-dawn. May I then put on tefillin before its regular time? [Our staff knows the querier.]
There are varied opinions among the Tannaim if, fundamentally, the mitzva of tefillin exists at night (Menachot 36b). According to most Rishonim (see Beit Yosef, Orach Chayim 30; the Rambam, Tefillin 4:10 is a notable exception), tefillin does apply at night, fundamentally. However, we are not allowed to put on tefillin at night because of the concern that we may fall asleep and then release gas with the tefillin on (Rashi, Menachot 36b). (Certain circumstances, e.g. – the tefillin are still on from daytime, one needs the tefillin on to protect them – complicate the matter.) Although a halachic day starts at alot hashachar (72-90 minutes before sunrise), we are not supposed to put on tefillin until “misheyakir,” approximately 50 minutes before sunrise.
A baraita (Menachot 36a) says that if one will be on the road from before the time of tefillin and is concerned that if he does not wear them they are more likely to get lost, he can don them but make the beracha(ot) when the proper time comes. The Rambam does not cite this gemara, apparently because he reasoned it followed the opinion, which he did not accept, that tefillin fundamentally applies at night (see Beit Yosef ibid.). However, the Shulchan Aruch (OC 30:3) does pasken this baraita, and the Mishna Berura (30:11) assumes that this traveler can put on the tefillin even before alot hashachar.
One crucial question is about the nature of the above permission to put on the tefillin. Is it a sign that one is performing the mitzva before its normal time, or is he just wearing the tefillin to protect them without doing the mitzva at that time? The idea of waiting with the beracha seems to indicate that he does not fulfill a mitzva. In fact, Rabbeinu Peretz (cited by the Tur, OC 30) says that the baraita follows the opinion that tefillin does not apply at night, but that according to our ruling that it does, the traveler should make the beracha right away. The Shulchan Aruch (following the Rosh and others) rules not to recite the beracha then. The Shaagat Aryeh (45) posits that one fulfills the Torah-level mitzva of tefillin at that time, just that given that the Rabbis generally required to wait until misheyakir, the berachot were not instituted for unusual circumstances when it is permitted earlier. Eliya Rabba (30:3) says that if one mistakenly makes the beracha before daytime, he does not repeat it at the right time because the beracha was valid due to the Torah-level fulfillment. Rabbi Akiva Eiger (to OC 30:3) agrees not to repeat the beracha in that case, but it is due to the possibility that Rabbeinu Peretz is correct and the beracha was the right thing l’chatchila.
So while some disagree (see Divrei Mordechai (Friedberg) 4), we assume there is benefit to putting the tefillin on even before alot hashachar if the alternative is not putting them on at all. This is the recommendation of Rav Moshe Feinstein (Igrot Moshe, OC I:10) and Rav Moshe Shternbach (Teshuvot V’hanhagot I:49). Rav Feinstein adds that if the person will not take the opportunity seriously if he is told not to make a beracha (this does not apply to you), one can rely on Rabbeinu Peretz and make the beracha. Rav Shternbach believes it is rare for a person to have no opportunity to put on tefillin for a few seconds and suspects that the issue is more often embarrassment to put them on at the workplace (we do not suspect this applies to you, either), which he does not consider justified in our times.Permission for the traveler to put on tefillin at night is based on the assumption that he will not fall asleep in those circumstances. Therefore, if one is not walking or riding but is being drawn in a carriage, he may not wear them (see Magen Avraham 30:5; Taz 30:5). If a doctor is on a long shift in which he is able/expected to catch power naps, the leniency does not apply.
Doing Tevilat Keilim Before Giving PresentI often give glass salad bowls as presents. Is there any problem with doing tevilat keilim on them before giving them to save time for the recipient or out of concern that they will not do tevila?
On a certain level, tevilat keilim is a matter of purifying utensils we obtain from a non-Jew, but it is not classical purification but a mitzva act that models purification, i.e., putting in a mikveh (see Rambam, Ma’achalot Assurot 17:5). This can help explain some lenient halachot, such as that food placed or prepared in a non-toveled utensil is untainted after being removed (Avoda Zara 75b). However, in the context of your question, poskim seem to apply the concept to create a stringency, which we will see after additional background.
The Beit Yosef (Yoreh Deah 120) cites a halacha from the Haghot Ashri that if one buys a knife to use for cutting parchment, not food preparation, and thus does not yet need tevila, one who borrows it from him does not have to do tevila even if he does use it for food. This is because a borrower is obligated in tevila only if the owner had an existing obligation. The Beit Yosef extends this logic to one who borrows a food-related utensil from one who bought it only to sell. Since the merchant was not obligated to do tevila, neither is the one who borrowed from him. Thus, using the “impure” utensil for food is not a problem if the grounds for an obligation of tevila did not materialize.
The Taz (YD 120:10) is not certain whether the Hagahot Ashri and/or the Beit Yosef are correct (even though the Rama, YD 120:8 brings the former as halacha). He says a borrower for food use from a merchant should, therefore, do tevila before using it. He warns, though, that word should be gotten to the eventual buyer to not to tovel it with a beracha. Later Acharonim (apparently including Rav S.Z. Auerbach, cited in Tevilat Keilim (Cohen) p. 241) understand that the buyer must do tevila even though the borrower already did it. The reason is that according to the opinions that there was no obligation to do tevila, the tevila did not work (Chelkat Binyamin 120:66; Tevilat Keilim 8:(9)). This must be based on the idea we started out with – tevilat keilim is not a matter of removing tumah, which should work even if there was no obligation, but of doing a mitzva, which usually needs to be done only after the mitzva is in force. In this case, the Taz and later Acharonim assume that not only did the borrower doing the tevila not fulfill the mitzva, but no purity was achieved. Therefore, when someone would buy and want to use it with food, he would need a new tevila. (While this is a surprising idea to me and not well known, the Taz seems to assume it.)
Therefore, the simple answer to your question is that your tevila prior to giving the present will not spare or save the recipient. Rav Cohen (ibid.) suggests having someone acquire it on behalf of the recipient, so that it will be obligated in tevila (as he will presumably use it for food), and at which point your tevila works. Rav Auerbach (ibid.) counters that since it is not clear that the recipient will use it himself, it is not yet defined as a utensil that is obligated in tevila. (It is not clear if/why the tevila will not work for the more common case that he will use it himself.)
One can suggest a different idea. You can plan to (and carry out after the tevila), use the utensils briefly, and thus the tevila will be needed for you and thus will be valid. (While this seems tacky, the whole idea of opening the package and putting the utensils in a mikveh before giving them is not exactly standard etiquette.)
In summary, there are both halachic and social issues about toveling utensils you will give as a present. If the recipient is one who might tovel himself, you, in any case, would have to discuss the matter with him (so that if your tevila works, he will not do tevila with a beracha l’vatala). In doing so, you can already ask him if it would be helpful for you to acquire it on his behalf and do the tevila for him.
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