ASK THE RABBI

The Shulchan Aruch (Orach Chayim 263:12) rules, based on the Mordechai, that at whatever time the majority of the community accepts Shabbat, individuals, even those who have not come to shul, must accept it as well.

The acceptance of the community (according to most, at the end of Lecha Dodi – Mishna Berura 261:31) does not make it Shabbat for all in the fullest sense but creates a prohibition to do melacha. Those who have not yet accepted Shabbat may daven Mincha during this time, just not in the place the majority are davening Ma’ariv (Shulchan Aruch ibid. 15; see Biur Halacha ad loc.).

Let us see exceptions to the rule of communal acceptance, as perhaps one applies here. The Magen Avraham (263:24) says that in a community with multiple batei knesset, the first shul to accept Shabbat does not impact other shuls, even if it contains a majority. According to many, this applies also to two minyanim in the same shul (Shemirat Shabbat K’hilchata 46:(43)). However, some say that a clearly central shul sets the tone for the entire community (Eliya Rabba 263:26). Private minyanim, i.e., those held in houses, are overpowered by a public one that contains a majority of the community (Mishna Berura 263:51).

A member of a shul (even if it does not have a community majority) is included in its Shabbat acceptance even if he or she was not there (Machatzit Hashekel 263:24), unless he decided to go to another shul that week (Aruch Hashulchan, OC 263:28). If most of the community’s members are not in shul, the shul does not draw along the community (Mishna Berura ibid.).

In determining the majority, who is included in the community? Poskim posit that it refers to Shabbat-observant Jews (see Shevet Halevi IX:56). This makes sense, as in trying to figure out the time at which Shabbat will be accepted, you should ask those who will practically accept it. Someone who is careful about Shabbat but may not keep every halacha or be a regular shul-goer likely counts, unless perhaps if he is socially divorced from the community of Shabbat observers. It is unclear from your question if those who accept Shabbat early in your community are the majority based on this perspective. The case for not having a single shul cause a whole area to accept Shabbat early is stronger in Israel, where the public announcement of Shabbat times, the end of bus service, etc. follow the regular time. (The boundaries of a community are not always easily set – is there a division between Rechavia, Shaarei Chesed, and Nachlaot, and if so, where? Are Teaneck and Bergenfield one or two communities?)

Rav Moshe Feinstein (Igrot Moshe, OC III:38) and the Be’er Moshe (II:17) present a novel but logical distinction. The idea of accepting Shabbat early in a way that binds others makes sense when done in an effort to increase the time of sanctity or distance people from Shabbat desecration. However, where early minyanim are done only in the summer, when late nightfall creates technical problems, these halachot likely do not apply. This distinction seems to assume that the halacha is based on the nature of the acceptance of Shabbat. If, though, the halacha is a matter of avoiding degrading by doing melacha the Shabbat of the majority of the community who are already celebrating Shabbat (Shevet Halevi ibid.), it shouldn’t make a difference what the motivation is. Shemirat Shabbat K’hilchata (46:(42)) cites this opinion without accepting or rejecting it, and it may be pertinent that the halacha of getting pulled into Shabbat by the tzibbur is ostensibly only Rabbinic.

The halacha is that it depends. The Shulchan Aruch (Orach Chayim 135:6-7) discusses two parallel cases in which the incorrect person is set to do the aliya. One is when it was not known that a kohen was present, and a yisrael was called for the aliya. The second is your case, when a kohen was called for a second aliya and it turns out that there was a levi present. The halacha in both cases is that if the person called started the beracha, he continues it, but if he had not started, then we switch to the correct person.

The logic of switching is two-fold in the respective cases. Giving a second aliya is an exceptional act (needed to protect the reputation of the kohen – see Shulchan Aruch ibid. 8 and Mishna Berura ad loc. 28), as is giving a first aliya to a non-kohen (Shulchan Aruch ibid. 4). Therefore, this is to be avoided when there is no important reason. We are also not hurting the person who is being asked to step aside for the following reasons. The kohen who has already had an aliya is just being held back from doing a second one, which no one else can have, and it cannot be construed as questioning his standing as a kohen. The yisrael who is passed up for a kohen never had claims to the first aliya, and, to not insult him, we keep him at the bima until his time comes to get the third aliya, which is the first available to a yisrael (Shulchan Aruch, ibid. 6).   

In the case that the beracha has already been begun and we stick with the “wrong person,” we cannot stop him because of the problem of beracha l’vatala (Beit Yosef, Orach Chayim 135, in the name of the Avudraham; Mishna Berura 135:20). While beracha l’vatala is a serious problem, the concern that, when a yisrael was called up instead of a kohen, people will think there is something wrong with the kohen’s lineage, is not severe. People can understand that a mistake occurred (ibid.). We do not call up the kohen afterward because that would actively be making him look like a non-kohen, as a kohen does not get the second aliya if a yisrael got the first one (ibid.).

A not simple point becomes evident from the case of the kohen not being replaced after starting his second aliya. That is that even in the case that he really should not have received this exceptional second aliya, that second aliya still counts toward the number of required aliyot.

What is considered having started the aliya is noteworthy. The Shulchan Aruch (ibid. 6) rules that Barchu is not considered the beginning, so that the correct person can switch with him after Barchu. That is because if one commands the tzibbur to bless Hashem (which is Barchu’s role) and they do so (“Baruch Hashem Hamevorach…”), this is something of value in and of itself (Mishna Berura 135:21). According to most, the correct person who takes over repeats Barchu before his aliya (ibid.). Although some say this is unnecessary (including Aruch Hashulchan, OC 135:15), it is not a problem to do an arguably extra Barchu (Kaf Hachayim, OC 135:39).

Regarding the opening beracha itself, the Magen Avraham (135:8) says that until one has said Hashem’s name (third word), it is still permitted and correct to stop the beracha. Once he says Hashem’s name, he continues. Although there is a remedy to end a beracha at that point by turning the beracha into the pasuk “Baruch ato Hashem lamdeini chookecha” (Tehillim 119:12), this remedy is not perfect and is not justified in a case like this, so the one who started the beracha continues. There is an opinion that the above is true only when the correct person just came in, but if he was there but was not noticed, we would stop the beracha after three words and add “lamdeini chookecha” (Be’er Moshe IV:18). However, the consensus of poskim is to not make such a distinction.

In our eyes, the most important issue is the social, educational one. I would not be happy if my child was, apparently, obsessed with getting paid in situations in which it is not standard and argues about it with his friend’s parent. If his parents are involved healthily in their child’s character development and interact reasonably with you, it pays to discuss the matter with them for the child’s welfare. It is best if you and they develop a practical plan together. It might be best to pay something so that he not feel that adults take advantage of him. On the other hand, he might deserve to be put in his place. I am not a child psychologist and do not know the child, so I trust you to handle this important matter wisely and sensitively.  

We will deal with the halachic element with the assumption that it is just a point of reference for you. You may not cite it as a ruling, as we have not heard both sides. (We don’t suspect that you are going to a din Torah or a court case with this child.)

This is a case where a “worker” works without waiving any pay due him and the “employer” is aware of the work but has refused to pay if he is not required to. There are two elements that can require one to pay for work done on his behalf: agreement (explicit or implicit); neheneh (benefit from the work). You did not agree to pay, but we must look at the issue of neheneh.

The Rama (Choshen Mishpat 264:4) discusses one who, along with a friend, was in jail and used his resources to secure the release of both of them. The Rama says that if he added resources to include his friend’s release or if he used his resources with both of them in mind, his friend must pay him. He then creates a general rule: “Anyone who does an action or a favor for his friend, [the friend] cannot say: ‘You did it for free because I did not tell you to do it,’ but rather he must pay his wages.” Since no pay was discussed, he pays according to the lower end of the salary scale (K’tzot Hachoshen 331:3). If that which was done is generally done for free, the worker is not paid (Pitchei Choshen, Sechirut 8:31). This depends not only on the type of work but also on the circumstances (e.g., a young child at his friend’s house does not usually get paid). However, this limitation does not apply when the child expressed his expectation to be paid.

After your initial protest, does your stance improve, as the Rama refers to a case where the recipient of the favor said nothing in advance regarding payment, whereas you said you were unwilling to pay? Although he raises that possibility, the Pri Tevu’ah (cited in Pitchei Teshuva, CM 264:3) rules that if the worker intended to get paid and there was neheneh, the recipient still normally has to pay.

On the other hand, Shut Mahari Halevi (151) says that it does not make sense that one must pay after he told his counterpart in advance that he refuses to pay. If there are differing halachic opinions, it is difficult to extract money. The Pitchei Choshen (Sechirut 8:(64)) says that the Pri Tevu’ah was talking about a case where the recipient expressed only dissatisfaction at the idea of paying and wanted the work done, but if he conclusively refused to pay, all would exempt him. This distinction might be pertinent in your case.  

There might be another reason to exempt you. Considering the work was being done by you and your children, it sounds likely that it would have been done anyway without your spending money, and thus there is little or no neheneh (see Shach, CM 246:11). Therefore, any payment would be minimal. Another complicating factor for the child is that if anyone has a halachic right, it is likely his father (Rama, CM 370:2).

Nichum aveilim is on the Rambam’s (Avel 14:1) list of Rabbinic obligations that are fulfillments of the Torah commandment to love one’s friend like himself. The Rambam (ibid. 7) posits that it has precedence over another mitzva on that list, visiting the sick, in that it is an act of kindness both to the live (mourners) and the deceased. Many provide a source that it serves the deceased from the halacha that if one dies without relatives to sit shiva, ten people “sit in the place of the deceased” and are visited (Shabbat 152a; Shulchan Aruch, Yoreh Deah 276:3).

Rav Moshe Feinstein (Igrot Moshe, Orach Chayim IV:40) is among the consensus that nichum aveilim by phone does not impact on the deceased and thus cannot be as good as physically coming. Therefore, anyone who should be menachem avel (parameters beyond our present scope) must do so in person if he can (see also Pnei Baruch 11:12; Yalkut Yosef, Kitzur YD 26:9).

Even in regard to chesed for the mourner, coming personally has advantages. The Perisha (YD 393:3) in finding justification for those who only say the “nichum formula” when visiting, posits that “coming in and sitting down to honor is considered nichum aveilim.” While picking up the phone is worth something, it is not as demonstrative an act of honor and empathizing (speaking by phone to a chatan/kalla is not like being at the wedding).

Before expressing a preference between phone or email, we will analyze a halacha of shiva house protocol. Consolers may not speak until the mourner “opens,” as Iyov’s friends did (Moed Katan 28b). What is the logic of this halacha, which has not has been observed uniformly for centuries (which might be important)? The Levush (YD 276:1) explains that we wait to see that the mourner is in distress. Experience makes it difficult to imagine requiring an indication that the mourner is upset, and the Divrei Sofrim (376:2) suggests that our certainty can explain why many do not wait. The Aruch Hashulchan (YD 376:1) explains that nichum aveilim has to do with tzidduk hadin (accepting divine judgment), and the mourner should start the process, as Iyov did. Rav Y.M. Lau pointed out that we usually wait for the avel to say anything and suggests that it might suffice for the mourner to have done so once before all can then start speaking (see also a letter from the Tzitz Eliezer in P’nei Baruch. p. 472).

Presumably, this halacha is not a technical problem in our times when one calls or emails, especially since the avel speaks into the phone first and since pressing on an email is like inviting one to “speak.” However, extending the Levush’s approach, one wants to know not just that he should speak to the mourner but should pick up on how to do so best. The Chofetz Chaim (Ahavat Chesed III:5) says that while one nominally fulfills nichum aveilim by saying “Hamakom yenachem …,” it is intended to touch the heart and lessen pain. He stresses (see also Minchat Yitzchak II:84, in a parallel context) the words’ practical effectiveness. Sizing up the mourner’s mood by observing and listening enables the menachem to calibrate his own speech.

Phone has greater potential and risk than email. The positive – the interaction of conversation allows you to have a good guess of what to say. The negative – you do not see body language and do not know if your call has spoiled a good dynamic that menachemim are in the midst of, as it is difficult to time the call well. Email is usually shallower (barring a masterpiece), but it allows you to “drop the message off” after choosing the words carefully and have the avel choose when to read it (after shiva is also fine).

We propose with conviction that people who are close to an avel but cannot make it should call because their maximum potential is worth the disruption. People who are not close should use email instead (unless he knows there are few menachemim or can keep his call very short).     

The Beit Yosef (Orach Chayim 273) deals with an apparent contradiction between the Bavli and Yerushalmi regarding making Kiddush in one place and eating in another. The Yerushalmi says that if this was his original intention, the Kiddush is valid, whereas the according to the Bavli, it is invalid. Rabbeinu Nissim (see Rosh, Pesachim 10:5) says that there is no machloket, as it depends on location. Under one roof, even in separate rooms and separate floors, intention to go from one to another connects the locations, whereas it does not help for different houses or from indoors to outdoors. The Ran says that there is a machloket, and we accept the Bavli that intention does not waive the requirement to eat in the room where he made Kiddush.

The Rama accepts Rabbeinu Nissim (OC 273:1) and, based on that, rules that one can make a beracha in one room or floor with the intention to exempt food he ate in a different one (OC 178:1). If you regularly move around the house, that counts as your standard intention (see Mishna Berura 206:20). If you normally eat in those other places, you do not need a new beracha if under the same roof (ibid.). If you usually eat only in one room and did not intend otherwise, you would need another beracha to eat in a different room not visible from the first (see Mishna Berura 178:12). However, going normally to other rooms does not obligate you in a new beracha upon return (Mishna Berura 178:3).

Although the Shulchan Aruch is non-committal about Rabbeinu Nissim regarding Kiddush (OC 273:1) and is silent on the matter in OC 178:1, the above seems true for Sephardim. Yalkut Yosef (OC 273:5) relies on Rabbeinu Nissim b’di’eved regarding Kiddush and rules like the Rama in OC 273:1 (ibid. 178:9), as the Shulchan Aruch (OC 178:3) implies.   

After seeing the beracha can extend, we should consider how to best time the berachot. We wrote about berachot strategy during sporadic drinking during a hike in Living the Halachic Process (II, B-4) and will summarize what we need to know to get started here. There are a couple of halachic doubts regarding breaks in drinking: If one does not continue before becoming thirsty again, does the beracha rishona’s efficacy cease? After how long should we assume one becomes thirsty? Should one make a beracha acharona when he finishes a round of drinking and the next round is not far away, and how does that affect the beracha rishona?

Regarding a hike, we distinguished between “frequent sippers” and “occasional gulpers.” Frequent sippers should make one beracha in the beginning and one beracha acharona at the end (if they drank a revi’it in one shot at some point). Occasional gulpers are to make a set of berachot for each drinking.

While indoors without exertion, one is likely to eat and/or drink less frequently, but on the other hand, he will probably not get as hungry/thirsty as quickly, which “extends the life” of the beracha rishona and allows one to wait for the beracha acharona. Assuming people will not eat or drink very often, the standard practice should be to make a set of berachot for each “unit” of eating and drinking. Despite this, one should train himself to expect to move around before finishing each food session and not make additional berachot necessary. Regarding cups of tea, coffee, or water, it is halachically preferable to drink a revii’it at one point so that he can make a beracha acharona at the end of a cup and thereby also solve any beracha rishona questions as well. If that does not suit his needs, it is usually best (except for “chain drinkers”) to have in mind that the beracha is effective for just one cup and then (plan to) not take another cup until at least a couple dozen of minutes pass, so that a new beracha is appropriate then.

While we should be respectful of people in general and certainly older people, the specific mitzva regarding older people is standing for them. The Torah commands: “Stand up before seiva, and honor the presence of a zaken” (Vayikra 19:32). The gemara (Kiddushin 32b) brings opinions as to who these recipients of respect are. The first opinion is that it is a Torah scholar. Isi ben Yehuda says that seiva refers to an elderly person, even if he is devoid of other special qualities. The gemara (ibid. 33a) says we accept Isi ben Yehuda’s opinion, as does the Shulchan Aruch (Yoreh Deah 244:1).

Who is old enough to deserve rising in their presence? The Rambam (Talmud Torah 6:9) writes that this is one who is “extreme in oldness,” without giving a specific age. The Rosh (Kiddushin 1:53) says it refers to a 70-year-old. Many point out that this is in line with the mishna in Avot (5:21) that lists characteristics of different ages and says that 70 is the age of seiva, the word the Torah uses for one deserving to be stood for. This is also the age that the Shulchan Aruch (ibid.) writes, so your recollection is well-founded.

Yet, there are also sources that refer to 60. The Birkei Yosef (YD 244:4) cites the Arizal that we should stand for people above 60, and the Birkei Yosef says that this is based on Kabbalistic reasons. However, others provide more standard sources for the significance of 60. Unkelus translates the above pasuk so that “seiva” refers to a Torah scholar and “zaken” refers to an older person. The Rashbetz (commentary on Avot ibid.) says that according to Unkelus, that “zaken” refers to the elderly, the age is 60, as the mishna says that 60 is the age of zikna. As we have seen, the Shulchan Aruch accepts the age of 70. This makes sense because we halachically prefer the gemara to Unkelus and because it is possible that Unkelus agrees that the word for an older person is indeed “seiva” (see Ramban, Vayikra 19:32).

Despite the preponderance of standard halachic sources that the age for deserving to be stood up for is 70, there are a few reasons why it might be worthwhile to do so from 60. There are early sources, such as Tikkunei Hazohar, who say that seiva is from 60, and the Gra says that they argue on the mishna in Avot (see Yabia Omer III, YD 13). In any case, it may be laudable to follow the Arizal, whatever his reason is (see ibid.; Divrei Shalom, YD 93), or just to be more careful than required. There is also an interesting compromise that includes some 60-year-olds. Some Acharonim understood the classical sources as saying that to deserve honor just based on age, one must be 70, and to deserve it just based on scholarship, one needs to be a notable talmid chacham. However, a minor talmid chacham who is 60 deserves honor (see Tzemach Yehuda VI:35).

[A fat separator is a regular container with a spout, except that the spout comes out from near its bottom. When one pours stock or gravy into it, forces of nature (lighter parts of a liquid mixture rise) cause the fat to rise to the top. By pouring the stock out from the bottom, the defatted part comes out first, and one stops pouring before getting to the fatty layer, which he later discards. Some models have a spout stopper, which traps air so that, until ready to pour out, the gravy with its fat stays out of the spout, so that all the fat remains in the container. (An on-line picture or demonstration may be helpful.)]

The baraita (cited in Shabbat 74a; see Tosafot ad loc.) mentions cryptically that selecting (borer) food from other types of food is sometimes forbidden and sometimes permitted. The following conditions for permissibility it brings to explain are accepted by the Shulchan Aruch (Orach Chayim 319:1-2). 1) The selection is done by hand, not by a utensil whose purpose is selection. 2) The food which one wants to eat is removed from that which he does not want now. 3) The food that is removed will be used in the short term. Only if all three are satisfied is the selecting not a violation of borer.

Let us analyze the fat separator. Most selecting takes place in one stage, either directly, by removing things from the mixture, or by putting something into a utensil that separates (e.g., a strainer) and removes immediately or one where the selection and removal occur when one shakes the mixture (e.g., a sifter). A fat separator, in contrast, employs two separate stages. The separation takes place over a few minutes after the gravy is poured in, and the removal of the defatted part occurs when one decides to pour it out. Let us first analyze each stage.

The first-stage separation happens naturally and is not significantly changed by the person’s action of pouring the gravy into the separator; the forces of gravity would perform the task in a pot or pan as well. Therefore, this cannot be prohibited.

The question is when one pours out the defatted part of the gravy and leaves the fat. There is enough intermingling between the parts of the stock to make it a question of borer. However, here you take the desired from the undesired (assuming one is interested in the defatted part, not the fat), which is good. (If there is some fat on the top of the spout in the beginning, do not throw it out alone.) Indeed, one should do this only if he plans to use the desired part shortly after removal.

The question is whether this is considered selecting that uses a (special) utensil. If we look at the whole process as one, then you are indeed using a utensil for it, and it would be forbidden borer. However, I am convinced one should look at it as two separate events: 1) natural separation; 2) removal of the good with a simple spout that does no separating. Besides an intuitive halachic conviction, a factor that indicates there are two separate stages is the fact that the second stage, which can come much later, occurs only if and when one decides to do it.

Therefore, pouring out only the part you want is not worse than pouring out some broth without vegetables from a soup pot, which is permitted if one does not use a pot cover etc. to hold back the vegetables. Indeed, one may pour from a utensil that which he wants and stop before getting to the unwanted material (see Shemirat Shabbat K’hilchata 3:47, who permits more severe cases). One could argue that a fat separator is worse because the pouring is effective only because this special utensil enables it. However, when discussing borer with utensils, the utensil is always involved in the separation, not in simple removal of that which was separated.

One could argue that the spout stopper is involved in separation, as it keeps fat out of the spout, and using it should be forbidden. However, this is wrong, as the air pressure does not hold back specifically fat but the entire mixture of gravy.    

Clearly the most important beracha of Havdala is the final one of Hamavdil, which contains its basic content. The berachot on besamim and on fire are not crucial obligations (Shulchan Aruch, Orach Chayim 297:1; ibid. 298:1), and while they are preferably attached to Havdala, they can be said at other times as well (Rama, Orach Chayim 298:1). Thus, if one did not hear those berachot, it does not affect Havdala (Mishna Berura 298:3), but he should make the berachot when he is able to during the course of the night.

In contrast, the cup of wine that one uses for Havdala is part and parcel of the mitzva on a Rabbinic level. Realize that normally we have already fulfilled the Torah-level mitzva of Havdala previously, during Ma’ariv. We recite Havdala again in order that the second time it will be with wine. In your case, on the one hand, you heard the beracha of Havdala recited by one holding a cup of wine. On the other hand, you did not hear the beracha of Borei Pri Hagafen on that wine. Is that lacking enough to prevent you from fulfilling the mitzva of Havdala?

The Magen Avraham (296:10; see Pri Megadim ad loc.) discusses one who heard a complete Havdala but had in mind to include himself in the beracha of Hamavdil but not of Borei Pri Hagafen. He says that such a person fulfilled the mitzva of Havdala, just that he cannot drink the Havdala wine without making a new beracha. The Mishna Berura (296:33) explains that whereas Hamavdil is the essential beracha of Havdala, Borei Pri Hagafen is needed only to enable one to drink the wine.

Several Acharonim (including Shulchan Aruch Harav, OC 172:(2); Igrot Moshe, OC III:45; Chelkat Yaakov I:91) demonstrate the extent of this distinction’s cogency by comparing the beracha structure to that of the parallel mitzva of a holy declaration performed on Shabbat over a cup of wine – Kiddush. The Shulchan Aruch (OC 271:4) posits that one who was in the midst of a meal in which he had already made a beracha on wine when Shabbat began makes Kiddush without reciting Borei Pri Hagafen. Admittedly, regarding Havdala during seuda shlishit that included wine, there are two opinions in the Shulchan Aruch (OC 299:3) whether one recites Borei Pri Hagafen. However, the stronger opinion is that he does not need to (see Mishna Berura ad loc. 10). In any case the issue is whether Havdala is considered part of the meal (ibid.), and not whether Havdala counts without Borei Pri Hagafen, which it clearly does.

Your case, when Borei Pri Hagafen was said but you did not hear it, is no worse. There is even a question whether Borei Pri Hagafen is crucial for the one who makes Havdala and is not in the midst of the meal. Rav Moshe Feinstein (ibid.), based on the rule learned from the aforementioned Shulchan Aruch that the beracha is only important to allow one to drink, posits that if one mistakenly recited Shehakol on Havdala wine, he fulfills Havdala, as he is able to drink. He further proposes that even if one forgot to make any beracha but already drank the Havdala wine, he fulfilled the mitzva. (If one did not drink a sufficient amount of wine, there is uncertainty about whether he has fulfilled Havdala (see Shulchan Aruch Harav, OC 190:4; Shemirat Shabbat K’hilchata 30:36)).

Shemirat Shabbat K’hilchata (vol. III, notes to 60:(91)) cites Rav Auerbach as saying that since one needs to drink the wine and needs the beracha for that, Borei Pri Hagafen is a part of Havdala that listeners need to take seriously. However, concerning after the fact for one who missed it, Shemirat Shabbat K’hilchata (60:30) agrees that there is no need to hear Havdala again, and he cites several poskim who agree. This covers cases of one who came in after Borei Pri Hagafen was said, or he did not hear it or concentrate on it. While you would have needed a beracha before drinking the wine, there was, of course, no need for you to do so.

Let’s start with the simple background. Omer is the measurement of barley brought as a korban on the second day of Pesach, and it is the accepted rabbinic parlance to refer to the korban. The mitzva to count 49 days starts the day the korban ha’omer is offered (Vayikra 23:15). There is a machloket whether in our times, when there is no korban ha’omer, the mitzva of sefirat ha’omer is Torah law or Rabbinic (see Beit Yosef, Orach Chayim 489).

Ba’omer almost certainly means “within the period of the omer.” La’omer can be a different expression of the same thing, or it can mean “from the time of the offering of the korban omer.” The Taz (OC 489:3) assumed that the latter explanation of la’omer is correct and, therefore, rejects it in favor his community’s minhag and the Rama’s (OC 489:1) opinion – ba’omer. He argues that the first night la’omer would not make sense since the count precedes the omer offering. It follows, then, that the text throughout must be ba’omer. We present another indication that the omer represents a time period and not from the bringing of the omer. The beracha is “on the counting of the omer.” This makes sense if omer is a period of time, broken up into days and weeks, which we count. However, if it is a korban or the day one brings it, we do not count it, but from it. (To deflect the proof one would have to say that the beracha is a slight misnomer.)

The Chok Yaakov (489:9) demonstrates that the apparently most prevalent text in the time of the Rishonim was la’omer. He supports the text, saying that la’omer means from the day of the offering of the omer and argues that ba’omer does not work well because it implies that this is one of the days that the omer is brought, which is true only on the first day. As mentioned, proponents of ba’omer understand it differently.

The Beit Yaakov (23) and his father-in-law, whom he cites, understand both la’omer and ba’omer as going on the day within a time period. The question for them is which the more appropriate prepositional prefix is. We find, in a get and a ketuba, that the letter lamed is used for the day number within the month, and bet for the day number within the week. The Bach (Even Haezer 126) feels that the standard way of writing is with a lamed and gives a technical reason why bet is sometimes needed to avoid confusion. On the other hand, we find “Tisha B’av, Tu B’shevat, and Lag Ba’omer, for days within months, even when there is no concern of confusion.

Regarding practice, perhaps because the Arizal and Shelah join most Rishonim in promoting la’omer, Sephardim and Nusach Sephard (Chassidic minhag) say la’omer. Perhaps because the Gra joins the Rama to promote it, most followers of Nusach Ashkenaz say ba’omer. The Mishna Berura (489:8) does claim that most poskim say la’omer, and the Aruch Hashulchan (OC 489:9), while citing both texts, prefers la’omer. In practice, as well, many otherwise Nusach Ashkenaz people and shuls say la’omer. Everyone can and preferably should follow their family minhag.

Realize that the stakes are very low. Even if one leaves out the word entirely, the counting is valid (Mishna Berura 489:8), and it seems that even if the word were needed, both versions are similar enough to be valid. One’s preference is certainly not an excuse to recite out loud a different version than is accepted (if one is accepted) in a specific shul (see Igrot Moshe, OC II:23), all the more so the chazan or other who recites it for the rest of the community must conform to their minhag.

There are reports of talmidei chachamim who repeat(ed) the count to cover both versions. This is certainly not necessary and probably not preferable (it is not found in classical poskim). If one is constantly in the practice of covering all halachic bases, and wants to include this one, he should do so only unnoticeably.

Refuah shleima! It is important to realize the nature of the practice of ma’aser kesafim. Tzedaka is a mitzva from the Torah, but its practical parameters are hard to define and quantify. Maa’ser kesafim gives a moderately ambitious (depending on a person’s circumstances) tzedaka formula (compare Rambam, Matanot Ani’im 7:1 and ibid. 5). In general, there are three opinions as to whether the practice of ma’aser kesafim is a mitzva from the Torah (Tosafot, Taanit 9a), a Rabbinic obligation (Maharil 54; Taz, Yoreh Deah 331:32), or a proper practice for one to accept (Bach, cited Taz ibid.; Shut Chatam Sofer, Yoreh Deah 231). The latter is the stronger possibility.

Most poskim rule that if one receives money as a gift and has freedom to use it as he likes, he is obligated in ma’aser kesafim (see Chikrei Lev, Yoreh Deah III:102). If the money is earmarked for a certain purpose, it is as if he received that matter as a present, and, according to many, he is exempt (see Tzedaka U’mishpat 5:(26)), especially if giving ma’aser kesafim will effectively preclude his obtaining that matter.

In your case, on the one hand, you can use the money for whatever you wish. However, medical expenses are primarily necessities one cannot reasonably ignore. One can suggest a proof that ma’aser kesafim does not apply to damage payment’s that relate to medical expenses (=ripuy). Ripuy is intended and calculated so that medical expenses should not harm the victim’s financial situation. It is conceptually optimal for the damager to directly arrange medical services for the victim rather than give an estimated lump sum of money for past and future expenses (Bava Kama 85a). Lump sum payments, when done, are a matter of practicality and convenience. If one had to give ma’aser on those payments, he would sustain a net 10% loss, and we do not find halachot of adding 10% to ripuy to cover the ma’aser. (One can deflect the proof on technical grounds, arguing that the obligation to pay damages is a Torah law, which does not take the victim’s worthy tzedaka practices into account, especially assuming they are Rabbinically-mandated or less. We would counter that the practice of ma’aser kesafim/tzedaka does consider the fact that ripuy is not general profits but necessarily earmarked payment, which it would be wrong to “tax.”

In most cases, it is possible to at least approximate the breakup of the elements of large lump sum payments based on an itemized insurance claim or a court or arbitrator’s ruling). Major injuries can include loss of income, which should (halachically and legally) be compensated for, and here, the halachic logic is different. Since such payments are in place of earnings that that are presumed to be lost, this element should be treated as income, which is subject to ma’aser kesafim.

We explained in Living the Halachic Process, vol. I, F-5 that people who cannot afford to give significant amounts of tzedaka should not do so, as their obligations to their families come first. While some injured people have no financial worries, many in this situation should consider their present and future financial outlook. Considering we do not know your situation, we will share our suggestion to the average person receiving large lump-sum damage payments. Since the payments are planned for long-term use, it is logical to set up a fund to be invested, with a certain amount being freed periodically. If you take that approach (we are not giving financial advice), it is fine to give any appropriate ma’aser only from the periodic payments (minus the portion that relates to medical or other injury related expenses. Do not give from the lump sum in the beginning. Thereby, as time goes by, you can see whether you will be able to give full ma’aser kesafim or the extent to which you will be able to fulfill the wonderful mitzva of tzedaka.