Shabbat Parashat Mishpatim| 5767
Mishpatim | | 01/01/2006
In a couple of places in our parasha, the Torah seems to subscribe to a very harsh punishment, only for Chazal to teach us that the Torah did not mean to carry out the punishment as it appears. “An eye for an eye” really means money for an eye. The Torah also talks about an ox that killed and, despite being warned, the owner failed to watch the ox, which ended up killing again.
Case: A couple got divorced after signing a settlement stating: “The sides agree that the ex-husband will pay the ex-wife 800 shekel a month for child support.” The court’s protocol states that following the signing of the document, the husband performed a kinyan sudar (a symbolic act of finalizing an agreement) “on the agreement I signed.” The husband now claims that he is not bound by the agreement because its language of agreeing to payment (as opposed to obligating oneself) is halachically invalid.
The Torah stated explicitly that chametz is asur b’hana’ah and did not leave it to us to derive it from the fact that chametz needs to be burnt, as it did regarding kila’ei hakerem. The question is: now that we have both a chiyuv to burn and an isur hana’ah, does the isur hana’ah stem from the mitzva to burn or is it an independent isur? Let us spell out two approaches to the matter within Rabbanan’s opinion, which affect the status of ashes.
Question: Does one make a beracha on ice cream served as dessert at a meal with bread? Answer: The gemara (Berachot 41b) presents the basic rules of berachot during a meal. Foods that “come due to the meal” do not require a beracha. Those not due to the meal require only a beracha before them. The Rosh (ad loc.) describes foods that come due to the meal as those that connected to the main part of the meal and (/or?) are eaten with the bread. Fruit are prime examples of foods that are not due to the meal (Shulchan Aruch, Orach Chayim 177:1). These are normally eaten to give a sweet taste rather than to fill one up. Although poskim assume that anything eaten before Birkat Hamazone is during the meal, foods that are eaten specifically for dessert are generally not due to the meal (see Mishna Berurah 177:4). The gemara (ibid.) asks: why, according to these rules, does one require a beracha on wine drunk during the meal. It answers: “Wine is different, as it causes a beracha for itself.” The most accepted explanation is that wine is unique in that we make a beracha on it in various mitzva contexts (e.g. Kiddush and Sheva Berachot) even when one is not interested in drinking it (Rashi, ad loc.). We see that, if not for this unique characteristic, wine would not have required a beracha during a meal. Therefore, most Rishonim and the Shulchan Aruch (ibid. 174:7) posit that drinks consumed during the meal, even toward its end, do not require a beracha. Many explain that eating contributes to one¬’s thirst; thus quenching thirst is an integral part of the meal. Let us note that some Rishonim learn the gemara differently and say that one makes a beracha on all drinks during the meal. The Shulchan Aruch (ibid.) even cites them as a minority opinion and suggests removing doubts by making a Shehakol before the meal to cover drinks. However, the practice is certainly not that way. One might wonder what ice cream, a classic dessert, meant to finish the meal with a sweet taste in one’s mouth, has to do with drinks. It is not part of the main meal and is not intended to quench one’s thirst. Yet, a few poskim make the following claim. Ice cream is a liquid that is served as a solid because people enjoy it at an artificially cold temperature. Since accepted practice is not to make a beracha on liquids during a meal, including during dessert, one should not make a beracha on ice cream. Yalkut Yosef (on OC167, 10) rules this way in the name of his father (Rav Ovadya). There are reports that Rav Moshe Feinstein ruled this way as well (see Vezot Haberacha, pg. 74). One could say that it is logical to call ice cream a liquid only when it is based heavily on milk and/or water, not when it is a mixture of eggs, soy products, and sugar (i.e., pareve ice cream) (see opinions in Piskei Teshuvot 177:(24)). Perhaps Rav Moshe was speaking about classic ice cream; however, Rav Ovadya does not accept this distinction. It is difficult to accept the above ruling (despite the rule of safek berachot l’hakel) for fundamental reasons. The great majority of poskim understand that the matter does not depend on halachic definitions of liquid vs. solid but on the function of the food; is it a drink or a dessert? (The reason we do not make a beracha on most cakes for dessert is that they may be considered like bread (Biur Halacha on 168:8.)) Even among drinks, the Mishna Berura (177:39) brings machlokot about a beracha for whiskey or coffee at the end of a meal, with the question being its function. Indeed, the gemara did not state a formal rule about liquids during a meal. So why should we lump all liquids together when their functions are so different? Most leading poskim rule to make a beracha on ice cream, certainly the pareve type; some suggest dodging the issue by making a beracha on a food it is agreed requires Shehakol (e.g., chocolate) (see opinions in Piskei Teshuvot and Vezot Haberacha, ibid.). We recommend making a beracha on ice cream served as dessert unless one always follows Rav Ovadya’s or possibly Rav Moshe’s rulings.
This edition of Hemdat Yamim is dedicated to the memory of
A weekly divrei Torah leaflet: A Glimpse at the Parasha, Ask the Rabbi, From the writings of Harav Avraham Yitzchak Hakohen Kook, zt”l, Pninat Mishpat (Jewish Monetary Law).