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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.).
Havadala on Yom Kippur Which Falls on ShabbatI know that Havdala after Yom Kippur is different than it is on Motzaei Shabbat. How do we treat matters when Yom Kippur falls on Shabbat?
How to treat Havdala after Yom Kippur that fell on Shabbat depends on the logic of each individual element of Havdala. We will proceed according to the order of Havdala.
In such a Havdala we do say the p’sukim that precede Borei Pri Hagefen like after a regular Shabbat (Mateh Ephrayim 624:5; Shemirat Shabbat K’hilchata 62:27).
The accepted reason for the beracha on besamim in Havdala is that one loses his neshama yeteira (literally, extra soul) when Shabbat ends and the besamim help revive him (Tosafot, Beitza 33b). After Yom Kippur this does not apply because there is no neshama yeteira on Yom Kippur (Shulchan Aruch, Orach Chayim 624:3; see Beit Yosef, ad loc.). The Shulchan Aruch (ibid.) says that even if Yom Kippur falls on Shabbat, the fact that it is a fast day means that there is no neshama yeteira. (See Rashi, Beitza 16a who connects between neshama yeteira and eating.) However, many (especially, Ashkenazic) poskim argue with the Shulchan Aruch, as the coinciding of Yom Kippur should not take away the innate kedusha of a regular Shabbat (see Mishna Berura 624:5 and Sha’ar Hatziyun 624:6). The Taz (624:2) points out that it is certainly not a beracha l’vatala to make the beracha on besamim, as one makes a beracha any time he purposely smells such a fragrance. The question is mainly on saying it in its regular place where it gets in between the beracha on the wine and its drinking (thus raising hefsek questions). Regarding practice, there is no right or wrong answer for Ashkenazim, as there are minhagim either way (see Mishna Berura ibid. and Shemirat Shabbat K’hilchata 62:28). If one smells the besamim and makes the beracha after drinking, there is little to lose (Shemirat Shabbat K’hilchata, ibid.). Sephardim certainly should not go against the Shulchan Aruch’s ruling and make the beracha during Havdala. However, Sephardim may make the beracha after drinking if they like (see Kaf Hachayim 624:9; Mikraei Kodesh (Harari), p. 298).
A final issue is regarding the requirements of the fire for the beracha of Borei Me’orei Ha’esh. There are two reasons to make the beracha on Motzaei Shabbat. One is that fire was discovered on Motzaei Shabbat (Rosh, Berachot 8:3). The other is that it becomes permitted to use fire, which was restricted on Shabbat. The former does not apply after Yom Kippur that falls during the week, so that the latter becomes the main idea after Yom Kippur. Due to this distinction, specifically after Yom Kippur it is necessary that the light the beracha is made on existed on Yom Kippur and people refrained from using it (Pesachim 54a). That is why people use a flame that was lit from a ‘yahrtzeit candle’ which was lit throughout the day. When Yom Kippur falls on Shabbat and there is also the first reason to make the beracha, a new flame that was lit on Motzaei Shabbat should suffice (Ritva, ad loc.). However, opinions do exist (such as the Magen Avraham 624:7) that one should anyway use a light that existed and was not used on Yom Kippur, in order to stress the fact that on Yom Kippur it was forbidden to use fire. The Mishna Berura (624:7), while not being impressed by this argument (see Sha’ar Hatziyun 624:9), notes that the minhag is to be stringent on the matter. However, he says that if one makes the beracha not on a new fire that was created by friction but from a flame that was transferred from it, one may certainly be lenient. (Note that this condition is fulfilled normally when one uses a match to light the Havdala candle.) Nevertheless, there are still people who are careful to use the yahrtzeit candle system (Shemirat Shabbat K’hilchata 62:35). Unquestionably, one who does not have such a flame available should make the beracha normally.
Shortening Blowing of Teruah to Conform to TekiaThe makree (person who supervises) signals me (a baa’l tokeia) to stop my set of teruot earlier than I want, out of a concern that if I blow more than 9 teruot, the shevarim-teruah may exceed the tekia. I wasn’t taught that is a problem. Is it?
The gemara (Rosh Hashana 33b) says that the length of the tekia is like that of a [set of] teruah. It does not say that one is longer than the other, and it is impossible for them to be exactly the same. Apparently, the teruah is used as an objective point of reference for the tekia – it must be at least as long as a normal set of teruah. This may be one of the reasons that all opinions found in the Tur/Beit Yosef/Shulchan Aruch and classical commentaries assume that it does not matter which is longer in a given series. We will bring a few of many possible proofs.
Poskim use an individual teruah short blast (tarmut) as a unit to describe the various blasts. For example, there is a machloket whether each shever must be at least 3 tarmutin long or less than 3 (see Shulchan Aruch, Orach Chayim 590:3). We assume that a tekia in a teruah series is 9 tarmutin long and in a shevarim-teruah it is 18 or so, each corresponding to the middle part (see Mishna Berura 590:14). No one says that these numbers are irrelevant if the middle part is the slightest bit over average.
A major timing concern is that doing a longer than necessary shever that reaches the minimum length of a tekia would preclude its being a shever. The poskim say that according to the opinion that a teruah set contains 9 blasts (there is an opinion of only 3), the length of a tekia is at least 9 tarmutin, and therefore an individual shever could be up to (but not including) 9 tarmutin (see Mishna Berura 590:13). In theory, in a shevarim-teruah series, where the tekia is at least 18, each shever can be up to 18. But if one did that and posits that the middle cannot exceed the tekia, the tekia would end up being upwards of 60 tarmutin, a length found only by a tekia gedola.
Regarding the debate whether it is proper to do more than 3 shevarim blasts in a set, the Perisha says we avoid doing that because in a shevarim-teruah one might run out of steam before getting to the 9 subsequent teruot. In contrast, he says, we do not care about extra teruot (see also Shulchan Aruch, ibid.), as he can stop when he is tired. He is unbothered that a long teruah following a shevarim could cause the middle to exceed the previous or subsequent tekia. The reason, again, is that the minimum length of the tekia depends on the length requirement of the middle section and is unaffected by unnecessarily long teruot.
At least one contemporary posek, the Moadim U’zemanim (I:5), mentions a “practice of the stringent” to have the tekiot be as long as the middle section in practice. He concedes that this opinion is not found in the poskim and identifies one Rishon (not cited by the Beit Yosef) and one Acharon (the S’fat Emet to Rosh Hashana 33b, not in a psak context) who share this opinion.
I do not oppose unnecessary chumrot to fulfill fringe opinions regarding this important mitzva. The problem is that in your case, the tiny gain causes greater problems than it is worth. As one who has served in both capacities, I believe that a ba’al tokeia is much more accurate at counting teruah blasts than a makree. If the makree tries to stop the ba’al tokeia after 9-10 blows before the latter planned, it is very possible he will stop him before 9, which would very likely disqualify the set (see Mishna Berura 590:15). The Moadim U’zemanim’s stringency assumes the minhag to do longer teruot than necessary and instructs lengthening the tekiot. He does not suggest being stingy with the teruot, certainly not to the point that a slight miscounting would cause them to be fewer than 9.
While a ba’al tokeia should follow his makree’s stringencies, at least if he is the rabbi, here we suggest you show the makree the evidence we have presented. If his opinion is unchanged, you should follow whatever the rabbi says.
Tallit and Tefillin During SelichotI say selichot before my normal Shacharit minyan. Should I put on my tallit and tefillin before Selichot?
Classically, people did not wear tallit and tefillin during Selichot – for a simple reason. The times for Selichot are after midnight or very early in the morning (see Shulchan Aruch, Orach Chayim 581:1), both times when one cannot put on tefillin. (We have written in the past about when it is preferred and permitted to recite Selichot.) Therefore, wearing tallit and tefillin could not be part and parcel of the halachot of Selichot, even when done after it is light in the morning. It is not proper, then, to miss some of the Selichot while putting them on first.
However, it is a good question whether it is a positive thing to try to have tallit and tefillin on for Selichot when possible. Selichot are a certain type of set of tefillot (see Rosh Hashana 17b), which overlap (especially for those who say Yud Gimmel Middot daily) with elements of our daily tefilla. Is there a connection between tefilla and tallit and tefillin? Let us take one at a time.
Married men wear a tallit at Shacharit. We have discussed in the past (it will soon be published in Living the Halachic Process vol.
The Taz (OC 581:2) discusses the minhag for the chazan for Selichot to wear a tallit and the way to do it without needing a beracha, which one is not allowed to make at night. Since we recite the Yud Gimmel Middot, there is cause for the chazan to be properly cloaked, especially in light of the gemara (ibid.) that Moshe saw Hashem wrap Himself like a chazan when he taught Moshe how to do the Yud Gimmel Middot. Others discuss whether this is worthwhile, considering kabbalistic reasons not to put on tzitzit at night (see Beit David (Solonica) OC 9). All seem to assume that people other than the chazan do not wear a tallit. One could, on the other hand, argue that it is because of the problems of a tallit at night.
Shacharit is the chosen time for tefilin both because we need to wear them during the day in a state of cleanliness and pure thought and because they are mentioned in Kri’at Shema (see Berachot 14b). There is a connection, but a weak one, to tefilla (see Shulchan Aruch, OC 37:2). While one could say that the connection should apply to Selichot, we again note that it would not appear to be more important than at Mincha (there is an opinion that it is good to don tefillin at Mincha as well – see Be’ur Halacha 37:2, but that is clearly not common practice). Again, it is possible to argue that if we are putting tefillin on soon anyway, we might as well put them on for Selichot (as opposed to making one bring his tefillin with him for Mincha and put them on specially).
In summary, we have seen that it is not important to have tallit and tefillin on during Selichot. However, we raised the possibility, without succeeding to confirm or contradict, that there is some value in putting them on before Selichot. Therefore, whatever works practically for a person (including time and concentration considerations) is fine.
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