Shabbat Parashat Mishpatim 5783

Ask the Rabbi: Making Up a Tefilla Missed to Help the Sick

Question: I spent all afternoon in the emergency room with my mother and did not daven Mincha. Can/should I daven a second Ma’ariv as tashlumin (makeup prayer)?

Answer: The gemara (Berachot 26a) introduces the idea of tashlumin for tefillot missed “by mistake.” Those who missed intentionally are excluded. Rishonim posit that there is tashlumin for one prevented from davening (see Shulchan Aruch, Orach Chayim 108:1). However, the Rosh (Shut 27:1, codified in Shulchan Aruch, Yoreh Deah 341:2) rules that an onen (one between the death and burial of a close relative, who is exempt from positive mitzvot) who missed a tefilla does not make it up at the next tefilla. He explains that the onen did not forget but was not obligated in the missed tefilla.

The Derisha (YD 341:3) extends this exclusion from tashlumin to exemptions from tefilla due to pressing involvement in a mitzva (osek b’mitzva). Caring for a mother with acute medical needs certainly qualifies (see Sukka 26a and Mishna Berura 640:7).The Taz (YD 341:5 & OC 108:1) takes issue with the Derisha, arguing that an onen’s exemption is qualitatively different from that of one involved in a mitzva. The Derisha and Taz may disagree on whether mitzvot erase obligations, like aninut does (see nuances in Kehilot Yaakov, Berachot 15; Atvan D’orayta 13). Alternatively, they may argue on the breadth of the institution of tashlumin.

Given that the Rosh regarding onen appears to be based more on logic than Talmudic precedent, it makes sense to distinguish between the cases. During aninut, one may not use windows of free time to do mitzvot. In contrast, our entire day should be filled with various mitzvot, yet we seem to almost always fit in davening with a (set) minyan (see Ishei Yisrael 22:9, who advises doctors and nurses to look for opportunities to daven). Therefore, it makes a lot of sense that even if a certain mitzva could not be interrupted, osek b’mitzva does not make it considered that the obligation of tefilla at that time did not exist. Nevertheless, the majority of Acharonim, including some of the most authoritative ones (Shach in Nekudot Hakesef, YD 341, Magen Avraham 93:5; Eliya Rabba 93:4; Mishna Berura 93:8), rule that one does not need to do tashlumin in a case of mitzva involvement.

That being said, it might be good to do tashlumin voluntarily, an idea we find even in the following cases when tashlumin is not prescribed: 1. He purposely did not daven; 2. More than one tefilla has gone by since he missed.  Poskim encourage doing tashlumin as a nedava (voluntary tefilla). The possible proviso is that when the case is further away from warranted tashlumin, the nedava must be done with a chiddush, i.e., additions to his regular Shemoneh Esrei. The Shulchan Aruch requires chiddush regarding #2 (OC 108:5), but not regarding #1 (ibid. 7). Since the requirements of chiddush are not trivial and perhaps difficult (see Shulchan Aruch and Rama, OC 107:2), we would not recommend it for the average person.

Regarding an osek b’mitzva, the Pri Megadim (MZ 108:1) says it depends whether the Taz’s opinion is strong enough to create a reasonable doubt whether tashlumin is needed; his inclination is not fully clear. It is an open question (see Yabia Omer IX, OC 90.6) whether there is an indication from the Rivash (140) like the Taz, and the Shevel Halevi (I:205) claims the Zohar supports the Taz. On the other hand, the Mishna Berura (108:2) rules that it requires a chiddush.

In your case, there could be reasons to require tashlumin. If your mitzva involvement began after the earliest time for Mincha, then according to almost all poskim, the subsequent exemption does not preclude tashlumin (Mishna Berura 71:4; the Birkei Yosef, YD 341:17 is equivocal). Also, while you had a right to err on the side of medical/kibbud eim caution and while one may use short breaks for ensuring his ability to continue the mitzva rather than tefilla (see Mishna Berura 71:13), if, in hindsight, you could have davened without compromising your mother’s care, tashlumin is called for.  

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