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Paying a Poor Person’s Guaranteed Loan from Ma’aser MoneyMy shul has a gemach, which gives loans only with an arev (guarantor). One borrower (Reuven) came into serious financial and medical problems some time after the loan. Realizing that he was not going be able to pay, some friends decided to pay the loan for him, and they want to use for this purpose their ma’aser kesafim money (a personal tzedaka fund, consisting of a tenth of one’s income). The question arose: since the arev (Shimon) will have to pay, given that the borrower cannot, and the arev is not poor, the donors are actually not sparing the poor but the “rich,” and therefore can ma’aser money be used?
This is a case where halachic intuition screams from the outset that it must be permitted to use ma’aser money, as the money is being given with the intention to help Reuven. We now aim to provide specific reasons why the intuition is indeed correct.
We begin with a simple halacha. After a guarantor has, based on the agreed terms, paid the loan back instead of the borrower, the borrower is required to reimburse him (Shulchan Aruch, Choshen Mishpat 130:1). This halacha impacts on our question in two ways. First, on the practical level, the donors are extricating Reuven from debt, whether you view it as the present debt to the gemach, or the future one to the arev.
Perhaps more significantly, the above and other halachot are instructive in understanding the nature of the mutual obligations when a borrower is unable to pay and an arev is called on to do so. It is not that the arev turns into the borrower, as the borrower remains obligated. Therefore, if the donors pay, they will be paying and relieving Reuven’s debt. The fact that practically this will benefit Shimon greatly does not cancel the tzedaka toward Reuven.
Under certain circumstances, there are additional reasons. Let’s assume Shimon took the responsibility as a chesed (not for some personal gain) and planned that if Reuven would be unable to pay, he would count his payment of the loan as tzedaka/ma’aser, as he may (see Tzedaka U’mishpat 5:(50)). If so, if the new donors relieve Shimon of paying, they are saving money for Shimon’s ma’aser fund, which is in effect a donation to it. While we usually thinking of giving our ma’aser kesafim to poor individuals or official NPOs, one can give (or, as in the case, give, in effect) his ma’aser money to someone else’s ma’aser fund. Thus, even if one views it (incorrectly, in our opinion, as above) as giving money on behalf of Shimon, it could still be considered giving it to his ma’aser fund.
Another way of looking at the donation as a valid use of ma’aser is to simply look at the donors’ actions as replacing the existing guarantor. While one could claim that this was an unnecessary gesture, as Shimon does not need to be replaced, in the final analysis, the donors are paying for Reuven, as Shimon had been prepared to do. So if, as we posited, Shimon could consider his payment as a legitimate tzedaka outlay (even though he originally hoped not to), certainly the new donors, who are acting in at least as altruistic a manner as Shimon, can consider it such.
Finally, it may be possible to give the money as a donation to the shul’s gemach, as they are actually giving it, just doing so on condition that the gemach will let their friend “off the hook.” This is not far-fetched. After all, the gemach is not interested, despite the requirement of an arev, in forcing payment from one with extreme difficulty paying. Rather, they are concerned that if they let people off too lightly, they will lose the ability to continue lending to others in the future. The new donors are assuring the gemach that they can forgive Reuven because the donors are replenishing their resources commensurately.Thus, we have been able to find five constructs to support the intuitive conviction that the donors’ philanthropy should be considered a proper use of tzedaka funds. However, we would point out that the first two constructs are the most straightforward truths.
Chanuka Candles and Havdala – Which Comes First?I never got a clear answer as to whether, on Motzaei Shabbat, we light Chanuka candles before or after Havdala. Can you clarify the matter?
In terms of practice, we can clarify only a few things. The minhag in shuls is to light Chanuka candles first (based on Terumat Hadeshen 60, Shulchan Aruch and Rama, Orach Chayim 681:2). Regarding the home, Sephardim do Havdala before Chanuka candles (Kaf Hachayim, OC 681:4; Yalkut Yosef; Mikraei Kodesh (Harari), Chanuka ). Among Ashkenazim, some schools of thought have clear rulings (which vary one from another); we will not provide lists of the opinions. However, the standard approach, to which we subscribe is that this is a case where one may follow the approach he wants (see Mishna Berura 681:3). We note that not only are both approaches well grounded, but also the question is only of preference; following the “incorrect” approach is not a “violation.” We will survey some of the indications presented by prominent protagonists.
The Terumat Hadeshen’s reason for lighting Chanuka candles first is the gemara’s (Pesachim 105b) concept that we delay Havdala (i.e., put it at the end of the series of berachot) and, thereby, the exit of Shabbat, so that Shabbat not appear as a burden. The Taz (OC 281:1) counters the Terumat Hadeshen’s assumptions on two fronts. First, he argues that tadir kodem – a more common beracha is recited before a less common one – is a stronger factor than delaying the end of Shabbat. Additionally, argues the Taz, doing Chanuka candles before Havdala is not even a correct application of delaying the end of Shabbat. This is because lighting candles itself contradicts the continuation of Shabbat, for if it were still Shabbat, lighting a candle would be forbidden.
The following discussion in Tosafot (Shabbat 23b) can shed light on the relative strength of the factor of tadir kodem. The gemara says that if one has enough money only for Chanuka candles or wine for Kiddush (which is more tadir), Chanuka has precedence because pirsumei nisa (publicizing the miracle) is more important. Tosafot asks why, regarding Rosh Chodesh on Chanuka, we read the haftrara of Chanuka, yet read the Torah portion of Rosh Chodesh before that of Chanuka. Tosafot’s first answer, which the Taz cites as support, is that the advantage of pirsumei nisa prevails when only one of the mitzvot can be fulfilled, whereas tadir kodem is the key factor regarding the order when both are done. However, points out the Eliyah Rabba (681:1), Tosafot’s other two answers diminish the importance of pirsumei nisa only regarding the Torah/haftara readings. This implies that when pirsumei nisa applies, as it does to Chanuka candles, it has order precedence over the more common Havdala.
R. Yaakov Emden (Mor U’ktzi’ah 681) rejects the Taz’s claim that lighting Chanuka candles contradicts the idea of delaying Havdala/end of Shabbat. He points out that after Havdala in davening or Hamavdil, we are allowed to do work (including Yom Tov candles and Borei Me’ore Ha’eish) before doing Havdala over wine, and yet we delay the beracha of Havdala.
Some cite a proof that Chanuka lighting precedes Havdala from the Yerushalmi (cited by the Shulchan Aruch, OC 581:1), that one should not use the Chanuka candles for Borei Me’ore Ha’eish. This implies that the Chanuka candles are lit first.
Is there any logic, other than minhag, to switch the orders in shul and at home, as Sephardim and some Ashkenazim do? The Maharal (Ner Mitzva, p. 28) cites, as a reason to do Havdala first, the concern that one who one did not say Havdala in Shemoneh Esrei will light in violation of Shabbat. The Eliya Rabba points out that in shul, we trust that the person appointed to light will be a diligent person who will not forget. It is also possible that since pirsumei nisa is a heightened element and exists for a shorter time in shul, we do it as soon as possible. The Kaf Hachayim (681:4) claims that after men have heard Havdala in shul, delaying the one at home is less important.
Melaveh Malka for WomenMy husband is careful to have a melaveh malka that includes bread and meat. I do not have at all. Should there be a difference between men and women on the matter?
The gemara (Shabbat 119b, accepted by the Rambam, Shabbat 30:5 and Shulchan Aruch, Orach Chayim 300:1) says: “One should always set his table on Motzaei Shabbat, even if he needs only a k’zayit [of food].” Rashi explains that it is an honor to Shabbat to “escort” it as one escorts a king when he leaves. Various authorities add other, esoteric reasons. A crucial (including for techiyat hameitim) bone in the body is nourished by food eaten on Motzaei Shabbat (Beit Yosef, OC 300 in the name of ancient works). Another idea is that eating after Shabbat draws the sanctity of Shabbat meals onto weekday eating (see Kaf Hachayim, OC 300:2). Some say it is a segula for women for easy childbirth (see Kaf Hachayim 300:4). However, melaveh malka has a long history of not being kept by the masses, as acknowledged by authorities who nonetheless believed in adhering to it (see Aruch Hashulchan, OC 300:3).
It is unclear to what extent melaveh malka is a weak but binding obligation, a proper practice (see Shulchan Aruch Harav OC 300:3; Mishna Berura 300:2), and/or a spiritual opportunity. It is also tricky to implement melaveh malka because there are many things mentioned by one or more poskim to enhance the practice (we will mention only some). The gemara, after the above quote, mentions both (hot) bread and meat, which some, like your husband, see as matters to be makpid about (see Maharsha Shabbat 119b; Mishna Berura 300:1).
The gemara implies (as the Taz, OC 300:1 understood) that the main factor is actually the setting of the table, and the food seems an afterthought (“even … a k’zayit”) or that which makes the table “the stage.” Many people who are machmir regarding eating ignore such elements mentioned by poskim as a nice tablecloth, place setting, and candles – matters of kavod modeled after Shabbat. On the other hand, some of the reasons given for melaveh malka do indeed focused on food, as does the ensuing passages of the gemara.
Some hiddurim mentioned are close to mutually exclusive. It is best to have melaveh malka soon after Shabbat; yet, it is best to cook for it after Shabbat. One idea is to eat something right away for melaveh malka, with Shabbat ambience, and have more serious eating later (Siddur Beit Yaakov (Emdin) p. 206b).
Is there room for leniency not to have a melaveh malka? Besides the possibility that it is not halachically required, there is a serious opinion (Eliya Rabba 300:1, quoted by many; see Shemirat Shabbat K’hilchata 63:6) that any eating at seuda shlishit after nightfall (whose exact time is unclear) counts as a melaveh malka. The Tehilla L’Dovid’s (300:1) cogent argument that since we treat that time as Shabbat, it cannot count for melaveh malka does not delegitimize the lenient shita (Shemirat Shabbat K’hilchata 63:6). Many poskim (including the Mishna Berura 300:1) say that one can fulfill melaveh malka without a full meal, even with fruit, as makes sense from the legitimacy of doing so for the greater obligation of seuda shlishit (see Shulchan Aruch, OC 291:5).
Women do have some extra room for leniency because melaveh malka is ostensibly a time-based mitzva (see doubt of Pri Megadim 300, EA 1). On the other hand, we assume that women are obligated in such mitzvot when they relate to Shabbat, i.e., Havdala and seuda shlishit (Machatzit Hashekel ad loc., based on Magen Avraham 291:11), as all agree regarding Kiddush (Berachot 20b). Furthermore, many women will presumably desire and deserve their share of the aforementioned spiritual treasures (see Kaf Hachayim 300:2).
In summary, your husband’s practices are positive, although there is room for doing more or doing less. You do have incrementally more room for leniency than he. However, we recommend that you have at least some food in an honorable setting in honor of Shabbat after it has departed (see Shemirat Shabbat K’hilchata 63:3).
Buying With Intention to ReturnI, an amateur seamstress, liked a dress I saw in a store, but it was too expensive. I wanted to buy it, learn its cut, and then return it, which Israeli law permits within 48 hours of the purchase. May I buy the dress with the intention to return it? (Additional information – in any case, I will not buy the dress; the saleswoman is a hired worker, and so neither she nor the owner loses by my actions.)
Without the special governmental provisions (not a law of the Knesset, but a takana (ordinance) of the relevant minister), the halacha is that after making a kinyan (act of acquisition) on a sales item, a buyer cannot back out of the deal unless: 1. The object was seriously blemished; 2. It was very overpriced. 3. A condition was made to allow it. However, we will work under the assumption (whose guidelines are beyond our present scope) that this law of the land is binding. Certainly, the ordinance was not instituted to help buyers in cases like yours. Furthermore, even assuming that the law would apply to this case, you seem laudably aware that this does not mean that you are morally and halachically permitted to buy the dress with the intention of returning.
While we are not experts in this ordinance (Takanot Haganat Hatzarchan, 2010), perusal shows it includes pertinent limitations. For one, the consumer can return the item only if he has not used it. It is a good question whether handling a dress minimally in order to figure out its cut counts as using it. We would assume that a use is a use, even if it is not a standard one and it does not wear out the dress. (See Bava Metzia 29b-30a, which says that one may not display to beautify his house a lost fabric that he must return. Admittedly, some factors apply there and not here.) Thus, if you disguise your “use” of the dress, this would be misapplying the law. Another provision of the law is that the seller can demand, as a charge for returning, the lower of: 5% of the sales price or 100 shekels. We will see how this may actually help you morally, but first we will look at the halachot of ona’at devarim (non-physical abuse).
It is forbidden to ask a merchant the price of a sales item if he has no intention of buying it (Bava Metzia 58b). While some describe the classical problematic case as when the “buyer” intends to upset the seller (see Mayim Chayim II:83), others refer to damage caused to the seller. The Meiri (Bava Metzia 58b) talks about the possibility that the discussion of price may take away from others’ interest to buy the item at that price and says that even if no one else is present, he still caused the seller pain and toil. These considerations do not depend on bad intentions. While any negotiations with a proprietor can lead to disappointment, a normal process of commerce (i.e., there is some chance he will buy) justifies it. (One who is overly sensitive should not be a storeowner). However, when the proprietor has nothing to gain, it is forbidden to engage him for no reason.
In your case, it is not clear to what extent a worker is upset by the return, although we would not rule it out. In any case, there are a few scenarios of loss for the owner. By occupying the salesperson, you may discourage others from buying or prevent her from doing something else of value; while the dress is out of the store, it cannot be sold; handling the dress may take away from its freshness, etc. While such concerns are not very strong, they may be enough for the halacha of not faking interest in buying to apply.
On the other hand, if indeed you will have to, or you will volunteer to pay, albeit modestly, for returning the dress, it stands to reason that this compensates for the small concerns and logically makes it permissible. That, though, would not solve the problem that the law does not apply after “usage.” In any case, we would urge, if it seems possible (depending on the worker’s personality) to be open and honest on the matter - request permission to do what you want for a modest agreed price.
A Teacher’s Responsibility for Theft of PhonesIn my son’s class, a teacher forced the children to put their smartphones in the front of the classroom. On the first day of the policy, one of the phones was stolen. Apparently, the parents are considering demanding that the teacher to pay, and the kids are talking about it. What does halacha say?
In my school days, such discussions focused on baseball cards. School distractions are now more expensive … and addictive. Our answer cannot be applied to a case whose specifics have not been presented by both sides, but we can discuss halachic indications.
Tannaim disagree whether one who suggests to another to put an object in his proximity without clearly accepting responsibility is obligated as a watchman (see Bava Kama 47b, Bava Metzia 81b). The halacha is generally that he is not obligated (Shulchan Aruch, Choshen Mishpat 291:2). Sometimes circumstances dictate that he accepts responsibility without stipulation (ibid.). In this case, on one hand, the fact that the teacher commands the students to put the phones in a certain place increases the chances he accepts responsibility. On the other hand, if the phones were in a place where the whole class could keep “one eye” on them while the teacher taught, this decreases the chances he intended to be responsible.
If the teacher accepted responsibility, it seems he was a shomer chinam (unpaid watchman), who is exempt in cases of theft. One could claim he is a shomer sachar since this happened as part of his job. However, since watching cellphones is not (yet) considered part of a teacher’s obligation, the connection to teaching is incidental, and he is a shomer chinam.
Even a shomer chinam is obligated to pay when an object is stolen due to his negligence (ibid. 1 with commentaries). We thus must address the question (see below, as well) whether the setup (phones visible to all but otherwise not guarded) is valid or negligent. Our general feeling is that, unless the school is crime-ridden, this is quite an innocuous, standard situation. (Kids playing ball often leave bags on the side in the open. Airlines assume people won’t try to slip out with another’s luggage.)
Assume that the teacher is not obligated as a watchman for one of the above reasons. Does forcing a situation of lower supervision of another’s object, which led to theft, obligate him as one who damages? Let’s view related cases. Regarding one who breaks a wall, enabling an animal to escape (Bava Kama 56b), there is a machloket whether he must or at least has a moral obligation to pay for the animal (see Rama, CM 396:4; Gra ad loc.; S’ma ad loc. 8). However, there it is very common that breaking the wall will cause the animal’s disappearance, unlike in our case. The gemara (Bava Kama 56a) also says that if one maneuvers someone’s stalks so that they are burnt by an existing fire, he must pay if it was expected for the fire to reach it, and there is a moral obligation if only an unusually strong wind would cause the fire to get there.
These sources indicate that here there would be no more than a moral obligation. Even a moral obligation does not apply here for a few reasons. In the latter case, the person had in mind to harm the object (see Shulchan Aruch, CM 418:11, Meiri Bava Kama 56a). Also, the list of cases of moral obligations is apparently a primarily closed one, and it applies where the nature of the act is considered damaging, even if indirectly. In contrast, here, while the confiscation of phones might have upset the children, it likely was not considered damaging to the phones. Finally, we find that teachers are exempt from damages caused in the course of necessary educational discipline (see Pitchei Teshuva 424:4). (On the other hand, we do not want to give teachers too much leeway. The teacher probably should have warned the children/parents of this policy and have them decide whether to bring phones. Still, trying to obligate a teacher to pay dearly for dealing in a way that many educators are finding unavoidable is wrong and educationally problematic.
Grounds for Cutting Down Fruit TreeMay one cut down a fruit tree in order to make room for improvements to their back yard for recreational purposes such as to put in a pool or a basketball court?
The Torah forbids cutting down fruit trees (Devarim 20:19), which is the strictest application of the concept not to be destructive (see Rambam, Melachim 6:8). It is thus not surprising that the gemara and poskim identify “non-destructive” cases where it is permitted to cut down fruit trees.
The gemara grants permission in the following cases: 1. The tree no longer produces a kav (a relatively small amount) of fruit (Bava Kama 91b-92a). 2. It is worth more for wood than for fruit (see Rashi, ad loc.). 3. It is significantly damaging a more valuable tree (see Tosafot). 4. It is damaging someone else’s property (Bava Batra 26a).
The Rosh (Bava Kama 8:15) learns from the above that one may cut down a tree if needed to use its location, which the Taz (Yoreh Deah 116:6) applies to building a home. Most poskim say this includes expanding a home, at least when the addition is objectively more valuable than the tree (see Chayim Sha’al I:22; Yabia Omer V:12). On the other hand, the gemara tells of an Amora’s son who died because he cut down a fruit tree prematurely, and R. Yehuda Hachasid also warned about it. Therefore, even when it is apparently permitted, some prefer that the work be done by a non-Jew (ibid.) and/or that the tree be transplanted (Chatam Sofer, YD 102).
To what extent can we rely on the Rosh’s thesis that making room for something else is an excuse for cutting down a fruit tree? The Beit Yaakov (140) claims that Tosafot and others disagree with the Rosh. The Meishiv Davar (II:56) adds that it is hard to be certain that after cutting down the tree, the building project will actualize. However, many Acharonim (see Chayim Sha’al I:22; Yabia Omer V, Yoreh Deah 12) strongly reject the Beit Yaakov and adopt the Rosh/Taz leniency.
How important must the need for the spot be? Although the gemara’s cases (e.g., wood worth more, affecting another tree) are not huge benefits, they relate to situations where the tree’s existence is more directly wasteful. In contrast, in the Rosh’s (and your) case, the tree is fully viable, just that it precludes another future use. It is therefore not surprising that some who accept the Rosh say that the need must be substantial. The She’eilat Yaavetz (I:176) relates to a case where a shul is too small and needs to be extended to an area occupied by fruit trees. The Chavot Yair (195), while allowing cutting down a tree that darkens one’s house, forbids doing so to allow for a place for walking around or increasing space and light. Several Acharonim, including important poskim such as the Aruch Hashulchan (YD 116:13) and Yabia Omer (ibid.) adopt this middle-of-the-road approach.
Appraising the cases you raised is tricky. On one hand, building a swimming pool or a basketball court is expensive, so that one erects one only if it is important to him (see Minchat Asher, Devarim 33), in which case the tree should not prevent it. On the other hand, some poskim (see Yabia Omer ibid.) indicate that the value of the change should be an objective one that applies to the average person. Swimming pools and basketball courts are not likely to qualify in that regard (even if we focus on the positive and permitted uses of those facilities). It is hard to ignore the possibility that one who uses honest but faulty judgment could be punished with death (aforementioned gemara; see also Chatam Sofer YD 102; She’eilat Yaavetz ibid. is more extreme). Another factor is that it might be possible, even if less convenient, to build what is desired without cutting down a fruit tree.
Therefore, we suggest the following. If you are willing to professionally, preferably by a non-Jew, transplant the tree, you may do so. Otherwise, we would have difficulty permitting removing the fruit tree unless we were convinced that the need and the lack of alternative were clear.
Undoing Mistaken Early Acceptance of ShabbatAfter davening at an early Shabbat minyan, I realized that I forgot to deliver a gift to my host (we have no eiruv). Can I undo my acceptance of Shabbat and daven Maariv again after delivering the gift?
The gemara (Berachot 27b) discusses the concept of an acceptance of Shabbat on false pretenses (b’ta’ut), specifically when people davened Maariv of Shabbat before the normal time due to darkness caused by heavy clouds. An amora allowed doing melacha when they discovered the mistake because acceptance of Shabbat b’ta’ut is invalid. Regarding a shul that similarly davened Maariv of Motzaei Shabbat early, it says that while we would have expected the tefilla to be invalid, there is a special leniency for a community to not have to repeat Maariv under these circumstances. Most Rishonim rule that melacha is permitted after an acceptance b’ta’ut (see Beit Yosef ad loc.). The Shulchan Aruch (Orach Chayim 263:14) cites this opinion, followed by (his understanding of) the Mordechai’s opinion that ta’ut does not erase acceptance done by the action of lighting Shabbat candles, which is stronger. Therefore, we might think that that if you did not light candles (and the acceptance of early Shabbat was not community-wide – see Shulchan Aruch, OC 263:12), you could have done melacha after realizing your mistake.
However, this premise is flawed. First, several Acharonim rule that after one has accepted Shabbat with tefilla, one can no longer do melacha even if it was accepted b’ta’ut (Magen Avraham 263:26; Mishna Berura 263:56). Furthermore, your case is very different from the gemara’s case of ta’ut. In the latter, the entire basis for going through the motions of accepting Shabbat was misguided. You, though, did want to accept Shabbat early, just that an unknown factor was a counterbalance to that decision. In the former case, the acceptance was null even if people desired to leave things as is (e.g., an individual who davened Maariv early under those circumstances must repeat it). That is appropriate only in cases where the mistake is objective and clear cut.
The Taz (600:2) seems to counter our argument. Concerning a community that accepted Shabbat early on Friday that was the second day of Rosh Hashana, after which a shofar became available, he rules that they should blow shofar even though this is usually inappropriate on Shabbat. He compares their acceptance of Shabbat to a ta’ut, even though it was fundamentally done for a real reason, just that it was counteracted by a desire to blow shofar. However, study of the Taz shows that other factors are involved in his ruling, and, more fundamentally, the lack of fulfillment of shofar is an objective factor that applies to all communities in that situation. (The Taz goes as far as to argue that even if people want to accept Shabbat fully, they have no power to undo their mitzva obligation.) Your case, though, is qualitatively incomparable to the sources on ta’ut.
What can be considered is being shoel (a process of releasing oneself, done before three people) on the acceptance. Some, including the Levush (OC 263:17), compare early acceptance of Shabbat to a neder (acceptance of extra halachic obligations) and say that one can be sho’el. However, the majority opinion is that one cannot be shoel on acceptance of Shabbat (see Mishna Berura 263:65 and presentation in B’tzel Hachochma IV:96). The strongest explanation is that while a neder is a halachic reality that is totally created by a person, the Torah mandates accepting Shabbat early, with each person just deciding when that is for him. In your case, undoing Shabbat causes an extra problem in that it would invalidate your Ma’ariv.In short, nullifying acceptance of Shabbat due to a need that arises should be contemplated only if the need is unusually pressing or objective, such as an unfulfilled mitzva, which seems to be missing in your case. (We will not get into other solutions, which ostensibly exist, to have dealt with your situation.)
Diapers With Disappearing InkIs it permitted to use on Shabbat a diaper with forms on the outside that disintegrate when the diaper is soaked, alerting parents to change the diaper?
There is a Torah-level violation to erase (mochek) writing or, according to many, a picture or figure (see Shulchan Aruch, Orach Chayim 340:3; Beur Halacha to 340:4). When the erasure does not serve a positive purpose such as enabling new writing, the violation is only Rabbinic (Mishna Berura 340:17). Thus, the diapers in question would seem to have no more than a Rabbinic prohibition. Another possible reason for no Torah prohibition is that the erasure’s result may be “destructive” (mekalkel). It is debated whether considering the side benefit, that the disintegration provides desirable information, it is mekalkel (see Beur Halacha to 340:13).
The main cause for leniency relates to who and how the erasing is done. Directly, it is the baby who erases by urinating, but he is almost always too young to require training in Shabbat prohibitions. Although one must not “feed” children prohibited matters, he may allow a situation in which a baby might choose to do a forbidden action (see Yevamot 114a). Here it is even better, as the baby “violates” Shabbat without any knowledge of this consequence of his action, in which case it is not a fundamental Shabbat violation even for an adult (see Shut Rabbi Akiva Eiger I:8).
Thus, the question is whether the adult violates Shabbat by creating a situation in which a future event will set off a melacha. Specifically, putting the diaper on the baby creates a situation where erasure will occur. When the direct cause (urination) of the erasure has yet to occur at the time of the adult’s action (diapering), we say that the adult acted through gerama (indirect action). Violation of Shabbat through gerama is a very low level violation of Shabbat, to the extent that it is permitted in certain cases of need (Rama, OC 334:22).
In this case, there are often additional points of leniency. For parents who are not interested in the erasure, as they can easily determine the “old way” when the diaper is soaked, the erasure is permitted as a davar she’eino mitkaven (an unintentional forbidden result of one’s action) of the diapering. It is true that when the forbidden result is a definite outcome (psik reishei), the action is forbidden by Torah law (Ketubot 6b). However, when the result is arrived at through gerama, many important poskim permit psik reishei (Shemirat Shabbat K’hilchata 12:18, based on Rav Auerbach; see discussion in Orchot Shabbat 29:(41)). Some say that gerama is permitted in cases where direct action is only Rabbinically forbidden. Other opinions disagree, and in any case the leniency likely does not apply to every Rabbinic prohibition (see Yabia Omer III, OC 17). Yet the above is probably not needed, as, in actuality, the erasure is not a psik reishei. For a variety of reasons, including the baby soiling with solids before the diaper is soaked, diapers do not always reach the point that forms are erased.
When there are not meaningful figures of letters but just a line or dots, there is even more room for leniency, as erasing such nondescript things is not a (full) violation of mochek unless the erasure uncovers or enables writing (see Shulchan Aruch, OC 340:3; Orchot Shabbat 15:59). We find this distinction in such cases as cutting cake with writing or clear figures vs. nondescript shapes (Rama, OC 340:3).
One may generally use diapers with disintegrating ink (Orchot Shabbat 15:52). However, note that many of the reasons for leniency are based on the assumption that one does not have intention when diapering for the erasure, which is a valid assumption when one did not intentionally buy diapers with this marginally useful feature. However, for one who values this function, use of such diapers on Shabbat may very well be forbidden and should be avoided. (Regarding a slightly stricter case of a color-changing strip, see the Star-K website, which has a similar ruling to the above.)
Mistakes in the Order of Kaddish and BarchuOn Motzaei Shabbat the chazan mistakenly said Kaddish Titkabel (=KT) and Barchu before V’yehi Noam and Kiddusha D’sidra (V’atah Kadosh). After saying those tefillot, he repeated KT and Barchu. Also, one morning a mourner said Barchu after the Kaddish of the Mizmor of the day instead of after Ein Keilokeinu and then repeated it at its normal place. Were these repetitions warranted?
The answers are basically evident if one understands the roles of KT and Barchu.
The main reason to recite Barchu again at the end of tefilla is for the sake of latecomers who missed the main one (Rama, Orach Chayim 133:1). For that reason, Nusach Ashkenaz does not repeat Barchu on Monday, Thursday, and Shabbat, due to the assumption that latecomers answered Barchu at the aliyot of Kri’at HaTorah (see Rama ibid.;). While it is customary in Israel to insert Barchu after Ein Keilokeinu, Barchu meets its purpose earlier or later in tefilla at least b’di’eved, as happens in Kriat HaTorah or in communities which do not recite Ein Keilokeinu daily. This should be so even according to Nusach Sephard/Eidot Hamizrach and in regard to the Motzaei Shabbat mistake, as this is still a Barchu at the end of davening, even if it moved up one Kaddish. (Since Kabbalistic considerations are behind the minhag to repeat Barchu every day (see Kaf Hachayim, OC 133:1) we cannot rule out the possibility that it should be repeated if not said at the exact right place, but we doubt that.)
Different Kaddeishim have different functions. The unique part of the Kaddish Shalem known as KT is the request that Hashem accept our joint prayers favorably. This relates to the joint Shemoneh Esrei, whether the silent one at Maariv or chazarat hashatz at the other tefillot (see Rama, OC 55:3 and Mishna Berura ad loc. 22). Therefore, it seems evident that KT is effective b’di’eved any time after Shemoneh Esrei, and there is no need or justification to repeat it.
However, there might be a significant dissenter regarding KT before V’ata Kadosh. Chief Rabbi Y. Yosef writes (Yalkut Yosef 132:8) that if one recited KT before before Ashrei/U’va L’tzion (the morning version of V’ata Kadosh), he should repeat it after U’va L’tzion. This is based on the assumption that Titkabel applies not only to Shemoneh Esrei but also to U’va L’tzion, to the extent that if KT preceded U’va L’tzion, another KT is needed. Indeed we do find Titkabel for a non-Shemoneh Esrei prayer – Selichot. On the other hand, his proof that Uva L’tzion warrants its own KT seems to actually be a disproof, as we will now see. He cites the Eliya Rabba (OC 693:5) who says that at Ma’ariv of Purim, KT is said twice, before Megilla reading to cover Shemoneh Esrei, and after the Megilla for V’ata Kadosh. The problem with this proof is that while the Mishna Berura (693:1) does cite the Eliya Rabba, he also cites the Magen Avraham, who says that Titkabel is said only in the Kaddish that precedes the Megilla, and the minhag of the great majority of communities is like the latter. In other words, we see that KT before V’ata Kadosh/U’va L’tzion suffices.
Perhaps Rav Yosef would agree not to repeat KT when it was done before V’yehi Noam/V’ata Kadosh of Motzaei Shabbat, due to the unique nature of those tefillot. They are recited to push off the end of davening in order to delay the return of souls to gehinom after Shabbat (see Tur, OC 295). The simple implication is that the point of return is after KT ends our tefilla. If so, if one prematurely said KT before those tefillot, there might be no reason to say them. While our intuition suggests that once the tefillot were instituted, they should be said anyway, its recitation is likely not important enough in that case to warrant a repeat of KT for its sake.
We posit then if one mistakenly recited KT on Motzaei Shabbat before the special tefillot, which include sections from Tehillim and elsewhere and requests, they would be followed by Kaddish Yatom. If no one wants to say Kaddish Yatom, the tefilla continues with Aleinu.
A Mourner Serving as Chatan TorahIs an avel within 12 months of a parent’s death allowed to be the chatan Torah on Simchat Torah?
During shiva, an avel is not supposed to learn Torah, and therefore he should not get aliyot, even on Shabbat, when one should not engage in aveilut publicly, because not getting called for an aliya is not noticeable (Shulchan Aruch, Yoreh Deah 400:1). However, if one was called for an aliya or gets an aliya every week, then he should do the aliya even on Shabbat during shiva because otherwise it would be public aveilut (ibid.). After shiva, there are generally no restrictions on aliyot, including “coveted” aliyot (e.g., Shlishi).
It is proper for an avel to be chazan during the first 11 months of aveilut for parents, thereby bringing merit to the deceased (Rama, YD 376:4). Yet on Shabbat and Yom Tov an avel does not serve as chazan (ibid.) because it is inappropriate for him to lead festive tefillot. There is discussion as to whether it might be appropriate for the more somber tefillot of Yamim Noraim. The Shach (YD 376:14) rules based on the Rama’s sources that, unless there is a special need, they should not because they also are largely festive. (Another possible factor regarding Yamim Noraim is to avoid having a chazan upon whom the attribute of din is hovering (Mateh Ephrayim 581:23).)
There are significant opinions that there is no real prohibition for an avel to be chazan on Shabbat and Yom Tov. The Noda B’Yehuda (I, OC 32) says it is a minhag, not a full halacha. The Meir Netivim (cited by Pitchei Teshuva, YD 376:8) claims that the halacha is that he is just not instructed to be chazan because of his aveilut (like during the week) but that one who is regularly a chazan on Shabbat does not have to stop during his aveilut.
However, according to the mainstream approach, even an intrinsically permitted role in a mitzva be improper for an avel if its context is festive. Similarly, the Rama (Orach Chaym 660:2) rules that an avel (throughout 12 months for a parent) should not encompass the bima with a lulav on Sukkot (not all agree, and some distinguish between different days of Sukkot – see Gesher Hachayim 23:3.7). Regarding Simchat Torah, Acharonim disagree about participation in Hakafot. The Gesher Hachayim (ibid.) says he can go around with the sefer Torah but not participate in the subsequent dancing.
Most Acharonim posit that the aliya of chatan Torah is too festive to allow for an avel (see P’nei Baruch 29:11). However, the uncertainty of this determination and lack of severity of the matter opens room for leniency in certain cases. One such case is when one was appointed or won the right to be chatan Torah before becoming an aveil, and the question is if he must give it up. The Zera Emet (YD 162) first forbids the aliya, then explains why it could be permitted, and finally recommends not doing it. The Yalkut Yosef (Aveilut 22:22) permits it under such circumstances, based on the weakness of the problem, especially after shiva. Another factor that is reason to be lenient is the matter of public aveilut by refraining, after the chatan Torah aliya has been set. However, in cases where nothing is set, it is proper to wait for a year without aveliut to honor someone.
One situation in which it may be best to allow an avel to have chatan Torah is when he receives it every year (in some places, the rabbi). Then, withholding it could be a public display of aveilut. On the other hand, there are serious opinions (including the Shach 400:2) that public aveilut is forbidden only for practices of first-level aveilut (i.e., practices that are just for shiva) and not those of minimizing joy (i.e., those that apply all year). Still, avoiding public displays of even year-long aveilut is mentioned in many halachic discussions (see Gesher Hachayim ibid., Chazon Ovadia, Aveilut II, p. 365). If, in the final analysis, an avel will get chatan Torah, it is a good question whether the festivity surrounding his aliya should be toned down (see Zera Emet, ibid.).
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