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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.
Kohen Seeking a Minyan With an Additional KohenAt one of the minyanim I attend, I am often the only kohen. Considering that lowers the level of Birkat Kohanim (=BK), should I avoid davening there?
The gemara (Sota 38a) derives from “say to them” (Bamidbar 6:23) in the context of BK that someone calls the kohanim to do BK only when there are at least two kohanim. Since a kohen violates his obligation to do BK only when he fails to do so after being “called” (Shulchan Aruch, Orach Chayim 128:2), Rabbeinu Peretz (cited by the Tur, Orach Chayim 128) says that one kohen, who is not called, cannot violate an obligation. The Tur argues, and the Beit Yosef explains that one kohen violates his obligation when he was unnecessarily called. Tosafot (Menachot 44a) raises another possibility – one kohen who is not called does not have a Torah obligation, but he still has a Rabbinic one.
You are apparently concerned by the opinions that BK is only Rabbinic with one kohen. We will start by mitigating your concern. First, not only does the Yerushalmi hold that even one kohen is called, but the Taz (128:3) and Pri Chadash (128:10) understand that one kohen has a Torah obligation without being called (see variation in Aruch Hashulchan, OC 128:9). One explanation is that calling is needed only when a kohen could pass off the obligation to his fellow kohen, whereas a lone kohen is obviously obligated (see Mishneh Halachot III:197). Admittedly, many (including the Magen Avraham 128:16; Be’ur Halacha 128:25) understand that the obligation is only Rabbinic.
Furthermore, even if the obligation/possibility of violation is Rabbinic, logic indicates that one kohen who does BK voluntarily fulfills a mitzva from the Torah according to all Rishonim. After all, he does the same action in essentially the same manner – why should the lack of prompting disqualify it. This is the approach of the Maharam Mintz (12, quoted by the Magen Avraham ibid.), who thereby explains why one kohen makes a beracha on his BK, and the Minchat Chinuch (#378). The language of the Beur Halacha (ibid.) implies there is no Torah fulfillment.
Should a kohen take steps to fulfill the mitzva specifically as an obligation? The general rule is that performing mitzvot as an obligation is better than voluntarily (Kiddushin 31a), although the extent of the preference is unclear. Arguably, the difference is smaller when one is generally obligated in the mitzva and there is also a Rabbinic obligation. (It may depend on the reasons why the reward is greater when obligated – see Tosafot, Ramban, and Ritva ad loc. Further discussion is beyond our present scope.)
Finally, we must weigh preferences in context. Even if we assume the mitzva is more complete when done with other kohanim, consider that avoiding the minyan when they do not have another kohen leaves the minyan without BK. The following halacha proves that it is proper to “compromise” other preferences to ensure a minyan has BK – apparently including greater concerns than having BK with two kohanim. The Shulchan Aruch (OC 128:20) rules that when a kohen is chazan, he does not do BK unless there are not other kohanim. This indicates that while a kohen gives up his individual mitzva of BK to enhance his ability to serve as chazan, the need for the minyan to have BK, even of one kohen, is more important. In contrast, the classical poskim are silent on making such a sacrifice to jump from BK of one kohen to two. (Az Nidberu XIII:34 believes that a kohen as a chazan with another kohen would do BK according to the Shulchan Aruch to gain the advantage, but he was unable to find a previous posek to say so explicitly.)In the final analysis, all agree that the BK of one kohen is a mitzva (otherwise he would not make a beracha before it) and all should agree that its sanctity and value is not substantively different from that of multiple kohanim. Considering the above, you should be happy if your presence ensures that the minyan has BK.
Shortening Psukei D’zimra to Catch UpI have noticed in a few shuls that a minority of the tzibbur starts Shemoneh Esrei (=SE) together and many people who come in a few minutes late do not try to catch up. Isn’t it correct to skip parts of P’sukei D’zimra (=PDZ) in such a case?
The Shulchan Aruch (Orach Chayim 52:1), based on Geonim and Rishonim, rules that one should shorten PDZ in order to catch up to the tzibbur and details the order of precedence. The Shulchan Aruch allows skipping all of PDZ if needed for that purpose (Yalkut Yosef (PDZ 24) concurs), while most Ashkenazi poskim require a minimal PDZ (Mishna Berura 52:6). (Some say it is important to finish Yishtabach with the tzibbur (see Avnei Yashfeh, OC I:10), but starting SE together is the main issue (Mishna Berura ibid.).)
Discussion was awoken by a passage in the Maggid Meisharim (quoted in Ba’er Heitev 52:1) in which Rav Yosef Karo’s angel warned him to come to shul early because skipping parts of PDZ is like “fiddling with the pipes.” The Ba’er Heitiv continues that many pious people thus do not shorten PDZ even if they come late.
There are few reasons to stick by the Shulchan Aruch’s ruling despite the story involving its author. First, the maggid’s instruction was to come early to shul, which actually implies that if he did not come early, he should skip parts of PDZ (Eliya Rabba 52:4). Furthermore, we do not follow kabbalistic sources against a halachic consensus (Chacham Tzvi 36). It may be different for people who follow all kabbalistic practices (see Ma’amar Mordechai 52:1), [few of whom read our column]. While significant halachic authorities follow the Ba’er Heitev’s understanding of Maggid Meisharim, the pillars of contemporary halacha do not (see Mishna Berura ibid.; Igrot Moshe OC, IV:91; Yechaveh Da’at V:5; Halichot Shlomo 8:41).
Cases that the classical sources did not discuss explicitly are riper for machloket. The Sha’arei Teshuva (52:1) says that if one davens too slowly to keep up with the tzibbur, he is allowed (apparently not required – see Ishei Yisrael 12:22) to say everything at his own pace and miss SE with the tzibbur. The implication is that he is not required to start davening early to “build up a lead” (ibid.). (He should, though, have his tallit and tefillin on and have recited Birkot Hashachar by the time the tzibbur starts PDZ.)
The Eshel Avraham (Butchatch- 52) says that it suffices to join the tzibbur at chazarat hashatz, and one should not skip PDZ to start the silent SE together. This depends on a broad question of if or to what extent chazarat hashatz counts as tefilla b’tzibbur (see Yabia Omer II, OC 7; our column, Tazria 5766); the Pri Megadim (EA 52:1) says it does not. This question has an opposite ramification in a different case in our issue – does one shorten PDZ to make it on time to chazarat hashatz when he anyway will miss silent SE? Each fundamental approach has a strong basis, but we prefer the approach that davening along with the chazarat hashatz fulfills a lower level element of tefilla b’tzibbur, but that regarding our context the crucial point is only the beginning of silent SE (Mishna Berura 52:6; Halichot Shlomo 8:41 (citing Rav S.Z. Auerbach)). (It is very difficult to read the classical sources any other way.) Starting SE significantly late but while the tzibbur is still davening is probably a similar level as that of joining chazarat shatz, and it is also permitted only if one will finish his SE by Kedusha (Shulchan Aruch, OC 109:1; Pri Megadim 109, EA 2; see B’tzel Hachochma IV:3).
In summary, we recommend to skip as much of PDZ as needed to give one a good chance to start silent SE (and, in most cases, Barchu) together. We respect other legitimate opinions, especially under certain consequences (see above). Having a shul start SE without a large percentage of the tzibbur joining together is regrettable. While it is proper to slow down to the average participant’s davening speed, “holding back” those who come on time to accommodate latecomers is also problematic.
Making Berachot on the Animals in a ZooTo date I have not made berachot on animals I have seen in the zoo, but it seems from sifrei halacha that one should. Should I start doing so, and, if so, what are the basic rules?
(We will not discuss the beracha for beautiful animals, which the Mishna Berura (226:32) already said is not really in practice in our times). A baraita (Berachot 58b) says that when one sees an elephant, a monkey, or a kafof (the exact species is unclear), he recites the beracha “…meshaneh haberiyot” (who makes diverse creations). This beracha is also cited regarding abnormalities within humans. Matters of abnormalities are likely to involve an element of subjectivity, as we will mention later.
Rav Shlomo Zalman Auerbach is cited as saying the beracha applies to any unusual animal (Halichot Shlomo 23:35). Others say that the list is a closed one (see V’zot Haberacha, p. 156), which can be true for a few reasons. Perhaps Chazal saw a unique characteristic in those animals (see Meiri, Berachot 58b). Even if it could theoretically apply to other animals, it is difficult to know what to consider unusual, and therefore it is best to recite such berachot only when we are sure. (I do not why we are sure what type of monkey Chazal were referring to – a gorilla looks quite different from a chimpanzee, or a mandrel, etc.)
There is also a question as to how often to make the beracha. Rav Auerbach is cited (Halichot Shlomo, ibid.) as instructing zoo-goers to recite the beracha on the first animal one finds definitely fascinating and intend to cover the other animals. This approach can be justified on several grounds. When one expects to have different occasions in close proximity where a certain beracha applies, it is often better to make one beracha for all of them (e.g., regarding eating; see Yoreh Deah 19 regarding shechita). It also removes doubt that will arise when it is not clear if a beracha is again necessary. There is also logic to view the trip to the zoo as one experience, as I will explain. Perhaps, it is not that each animal needs to have or be included in a beracha, as different foods do. Rather, seeing unusual animals makes one reflect on the wonder of creation, and the entire trip to the zoo is focused on that.
It seems that most religious Jews do not make a beracha on animals in the zoo, including elephants. Does this have any justification? First, it is far from clear that when the beracha is appropriate, it is obligatory (see a brief discussion in Yabia Omer IV, OC 20). Additionally, the Shulchan Aruch (OC 225:9) says that this beracha should be said only the first time in a lifetime for each unusual sight, when it has its greatest impact. If one neglected to make the beracha or was a child at the first opportunity, the beracha is not made up later (see Birkat Hashem, IV, 3:28). While the Rama (ad loc.) says that the clock is reset every thirty days, as is often the case regarding similar berachot, the Mishna Berura (225:30) suggests making the beracha without Hashem’s name.
More fundamentally, we must recall the beracha’s subjective nature and note that times have changed. Once upon a time, a person could go through a lifetime without seeing a monkey or even a picture of one, and the excitement of seeing one made a beracha more natural. Nowadays, people go to the zoo periodically and whenever they want, and they have seen images of elephants and exotic animals many times (all agree the beracha can only be said on seeing them in person). Therefore, the excitement is not the same. (Seeing one in its habitat is likely different.)
Therefore, those who do not make the beracha at the zoo do not need to begin doing so. However, those who do say or want to start, especially those who get excited by the animal kingdom with whom Hashem has us share the world, do not have to fear beracha l’vatala (see Yabia Omer, ibid.), at least on monkeys, elephants or astounding animals. One can certainly make the beracha without Hashem’s name and should certainly think of Him often during the visit.
Going to the Courts Where There Is No Beit DinI am a lawyer in a country with a small Jewish population, in which when we need a din Torah, we fly someone in from another country. A Jew who is suing another Jew asked me to represent him, and the dispute is on a modest amount of money, which is less than the cost of bringing a beit din. May we sue in non-Jewish courts?
Although we respect and value local governmental courts (see Avot 3:2), Jews are required to seek adjudication specifically in a beit din (Shulchan Aruch, Choshen Mishpat 26). There are two main rationales for this halacha: 1. It is wrong for the incorrect litigant, from the perspective of Torah law, to win the case. 2) Seeking a different system of justice is a severe affront to the Torah’s pertinence in the critical realm of justice (see Beit Yosef, CM 26; S’ma 26:4).
Factor #1 does not apply if the two sides agree to go before the non-Jewish court, as they can decide on other forms of dispute resolution, e.g., mediation, flipping a coin … However, factor #2 is still a problem. If adjudicating in a beit din is unfeasible, then factor #2 should not be a problem because one is not rejecting Torah justice but is just dealing with a situation where it is not an option. Indeed, the gemara talks about adjudication before unknowledgeable Jews when no local Jews are capable of functioning as a proper beit din (Sanhedrin 23a, adopted by the Rashba, cited in Beit Yosef, CM 8). The implication is that this is preferable to going to the local non-Jewish court. On the other hand, there is room to argue that this was based on an assumption, which is not as prevalent in our days as in the past, that the courts were a corrupt and a dangerous place for Jews and the Jewish community (see Rashba, Shut II:290).
What does one do when a city has no Jewish tribunal at all? The Rama (CM 14:1) says that this is grounds for going to another city from the one in which the case should have been heard. However, as the discussion above implies, out-of town alternatives may be deemed practically unfeasible.
Most poskim posit that when there is no beit din that can adjudicate, it is permissible to go before a non-Jewish court (Chukot Hachayim (Palagi) 6). The Rivash (216) implies this. The Shulchan Aruch (CM 61:6) says that although a contractual stipulation does not allow a lender to make payment from a borrower’s property without involvement of beit din, he may do so if he cannot find a beit din to adjudicate. The Maharikash (Erech Lechem, ad loc.) broadens this concept to allowing a Jew to sue in non-Jewish court when a local beit din is unwilling to hear the case. There is discussion about the conditions under which such action is justified (see Chukot Hachayim ibid.) and on whether a beit din must at least grant permission, but in cases where there is no alternative, it is permitted to go to the courts.
Spending more money on transportation than the claim warrants is one such case (see Sanhedrin 31b). On the other hand, there are often reasonable alternatives. Mediation and non-judicial arbitration are often good ideas in any case. Nowadays, there are recognized batei din which will adjudicate via video-conferencing, as our beit din has done successfully. While a standard hearing is more effective, we find precedents for compromising effectiveness in a case of need. For example, when one side wants to go to an expert regional beit din and the other prefers a local lower-level one, they adjudicate locally, and the beit din sends questions to experts (ibid.; Shulchan Aruch, CM 14:1).
We suggest that your plaintiff propose one of the above alternatives. If the other side rejects them, it is like any case in which the defendant refuses to submit to beit din and beit din grants permission to go to court. It would be legitimate for the plaintiff to refuse to offer one of these options if he truly believes that they will take away from his right for justice. In any case, it would be permitted for you to represent him as a lawyer in court.
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