ASK THE RABBI

The halacha that you are assuming, that someone calls “Kohanim” before Birkat Kohanim only when there are at least two kohanim, is derived by the gemara (Sota 38a) from “say to them” (Bamidbar 6:23) in the context of Birkat Kohanim. Several Acharonim relate to your case, when there are two kohanim but only one of them is a gadol.

The Mabit (I:64), apparently the first major posek to discuss it, says that one does not call out in such a case. The first of the Mabit’s working assumptions is that the role of the katan is less than regarding most mitzvot, as a katan is not even supposed to do Birkat Kohanim by himself, just that he goes up along with adult kohanim (Tosafot, Chulin 24b; Shulchan Aruch, Orach Chayim 128:34). The second assumption is that calling out is done to create an obligation for the kohen to do Birkat Kohanim (see Tosafot, Menachot 44a; Tur and Beit Yosef, OC 128). Since the katan is not going to be impacted by the call of Kohanim, there is no point in doing it due to his presence. The gadol will remain uncalled and will fulfill the mitzva of Birkat Kohanim without the standard obligation. He adds that there is also a problem of hefsek if the chazan decides to unnecessarily call out Kohanim during chazarat hashatz. Finally, he says that it is a disgrace to the tzibbur to be dependent on the katan (see Rashi, Megilla 24a).

Several Acharonim, including the Magen Avraham (128:13) accept the Mabit. The Pri Chadash (OC 128:10), though, disagrees on all his grounds and rules to call “Kohanim” in that case. First, he says that although the katan does not do Birkat Kohanim alone, when he does it, it is the fulfillment of a mitzva like any other of a katan’s actions. Once calling is appropriate, there is no problem of hefsek. Finally, he posits that calling out is not a charge to bless, but is instruction to the kohanim to turn around, and thus it does not disgrace the tzibbur. He also points out that according to the Yerushalmi (Berachot 5:4), we should call even to one kohen (with there being a machloket whether to say “Kohen” or “Kohanim”), and therefore it is unlikely that the Bavli would forbid it.

The majority of Acharonim hold like the Mabit (see Kaf Hachayim, OC 128:64, Yalkut Yosef 128:18). However several Acharonim raise the following very pertinent distinction, according to the prevalent minhag of Ashkenazim in this context. While for Sephardim, the chazan recites only the word “Kohanim” after finishing the beracha of Modim, the Rama (OC 128:10) prefers the minhag that the chazan says quietly the short prayer of “Elokeinu … barchenu babracha …,” just that he says the included word of “Kohanim” audibly. As such, the call is not a hefsek. Many, including the Pri Megadim (Eshel Avraham 128:13), Mishna Berura(128:38), and the Kaf Hachayim (ibid.) say that according to this minhag, there is no problem saying Kohanim for one adult and one minor kohen. This is all the more so according to the prevalent minhag in Israel that the chazan is not the one to call out Kohanim at all. When we recall that according to the Yerushalmi, it is always proper to call out for one kohen, the idea makes a lot of sense. (Admittedly, the Mabit himself had other reasons for not saying Kohanim other than hefsek, but apparently many Acharonim felt that the other reasons are weaker.)

One could claim that it is not just possible but important to say Kohanim even in this case, because the obligation to perform Birkat Kohanim is predicated on that invitation of the tzibbur (see our column of Ki Tavo, 5774). However, I did not see that factor raised by the poskim. That is apparently because according to most, an inappropriate call to Birkat Kohanim is inconsequential. Also, the significance of calling Kohanim and the possibility that it creates an obligation is not as great as one might think. We discussed these points in that column.

We will first take a look at the “halachic” element, and then, likely more importantly, try to put things in perspective.

The gemara (Chulin 27a) sees in a pasuk (Yechezkel 41:22) that mentions both the mizbeach (altar) and the shulchan (table) the following idea: “At the time of the Beit Hamikdash, a person would bring a sacrifice and be atoned, but now one’s table brings him atonement.” The primary explanation is that the atonement power comes from the mitzva of feeding those in need (see Tosafot ad loc.) – a practical, not mystical, concept. Nevertheless, there are several (semi-) accepted halachot that are learned from a spiritual concept of “a table is like an altar,” which may reflect another level of this gemara.

Several Rishonim (see Beit Yosef, Orach Chayim 180) learn from this concept that one should cover metal knives that are on the table at the time of bentching, as metal is kept away from the mizbeach because the latter lengthens life and the former shortens it. The Shulchan Aruch (OC 180:5) paskens this way. The Rama (OC 167:5) recommends to put salt on the table, just as salt was put on the korbanot brought on the mizbeach. The Magen Avraham (167:13) cites the Sefer Chasidim (102), that one must not kill insects on a table upon which people eat, just as he would not do so on the mizbeach, again, for the above reason. As usual, when the Magen Avraham states an opinion, most Acharonim follow suit (see Sha’ar Hatziyun 167:26; Kaf Hachayim, OC 167:41). The Aruch Hashulchan (OC 167:12) extends this to anything that is unseemly, with other Acharonim mentioning some specific examples, such as not allowing children to walk on top of the table (see Piskei Teshuvot 167:6). All indications are that this matter of respect for the table applies all the time, not just during a meal.

It seems clear to most anyone that changing a diaper is included in what the Aruch Hashulchan (ibid.) calls unseemly things, and he would thus forbid it. Actually, most people would refrain from doing so on health and aesthetic grounds, certainly in the presence of guests and soon before a meal.

On the other hand, I would not have said anything to the new parents, unless I felt that due to our relationship and/or their personality, they would take my comments in a positive spirit without significant embarrassment or resentment. While those who cite this halacha use the word assur, it is hard to view this post-Talmudic prohibition as a classical Rabbinic prohibition of the type from which we should try to protect our counterparts. (It is also unclear if all accept the Aruch Hashulchan’s extension to all unseemly things).

It is healthy to be melamed z’chut and see a little logic and even some beauty in the couple’s behavior. First, the halachot of excrement do not apply, for the most part, to such young babies (see Shulchan Aruch, OC 81:1 and Mishna Berura ad loc. 2). Indeed, the smell is also less oppressive (for most) and apparently somewhat less unhygienic (especially for nursing babies). What is more interesting, though, is the attitude of these parents, who, I would guess, are first-time parents. Their days (and some sleep-deprived nights) revolve around that little bundle of joy, and he or she occupies their thoughts and actions. With such a frame of mind, they probably see taking care of the baby’s needs as the most natural and beautiful thing, and it did not dawn on them that others might be taken aback. I would also predict that in a few weeks, they will “land” a little bit and stop doing this practice, not due to halachic realization, but due to a return to normalcy, in which they would “know better.” In the meantime, I would excuse their lack of tact and try to focus on its endearing element.

There is a machloket in the gemara (Bava Metzia 32b) and poskim whether tza’ar baalei chayim is a Torah law or a Rabbinic one, and it is possible that it is a quasi-Torah law (see Encyclopedia HiIchatit Refuit, VI, p. 525). Many mitzvot in the Torah (at least according to some commentators) and Rabbinic laws are based on concern for animals and are to avoid cruelty to them. When and why can this be waived for human purposes?

The simple reading of Tosafot (Avoda Zara 11a) is that tza’ar baalei chayim can be waived only to facilitate an important mitzva. However, the halachic consensus is along the lines of the following Rama (Even Haezer 5:14, based on the Issur V’heter and Terumat Hadeshen): “Anything that is needed for medicine or for other things does not have a prohibition of tza’ar baalei chayim. Therefore, it is permitted to pluck feathers [for quills] from live geese, but the world is careful about that because of cruelty.”

There are at least two approaches to why the prohibition falls in the face of human need. One is that the prohibition is only for being needlessly insensitive. We find regarding bal tachshit (not destroying things) that “destroying” something for a positive reason is permitted because it is, in context, not destructive. Indeed the two mitzvot may be connected as the gemara (Chulin 7b) says – killing an animal for no good reason is ba’al tashchit; keeping it alive but in pain is tza’ar baalei chayim. Thus, if done for a good reason, it is not destructive/cruel.

A second, complimentary approach, is that the Torah teaches us, explicitly and implicitly, that animal rights do not compare to human needs. There are several Torah statements along the line of “Have dominion over the fish … birds …” (Bereishit 1:28). Furthermore, we are permitted to take an animal’s life simply because we desire to eat meat. We may enslave animals to do hard labor, with some restrictions (not Shabbat, muzzled).

There are a few important possible distinctions. Permissibility may depend on the level of pain to which the animal is subjected. Normal agricultural work is not torturous and is permitted. However, the Rama above calls plucking feathers from a live bird cruelty, and says we do not do such things (see Shvut Yaakov III:71). The level of need is also a variable. Some rule that earning extra money is not an excuse (see opinions cited in Minchat Yitzchak VI:145), and while most authorities say that it is a valid reason, it may depend on how painful it will be for the animal (ibid.).

Rav Yaakov Emden (Sheilat Yaavetz I:110) says that tza’ar baalei chayim applies only to animals with which man works (e.g., cattle, horses, donkeys) or perhaps relatively highly cognitive animals (dogs, cats), but not to “lower creatures,” who experience pain differently. According to these opinions, it does not apply to insects, and likely not to rodents.

Looking for cures and treatments for human illnesses is certainly a very valid reason to allow animal experimentation. As several poskim point out, real efforts should be made to ensure the importance of the experimentation, limit the number of animals used, and minimize pain (including using lower species). Suffering animals should be euthanized as promptly as possible. Thankfully many countries have rules to monitor such things, and unfortunately few do a good enough job.

Personally, if you are involved for a short time, it is appropriate to feel somewhat uncomfortable, even if the practice is right (see a scary story about Rabbi Yehuda Hanasi – Bava Metzia 85a). A professional researcher can’t be expected to constantly live with guilt, but it is appropriate to seek ways to heighten sensitivity, emulating Hashem, whose mercy is on all of His creations (see Tehillim 145:9). 

There are two main issues to deal with: whether they are considered doing work on your behalf; whether there is a problem of marit ayin.

In this case, UPS is doing melacha on your behalf, at least in regard to driving to the pick-up point and perhaps other matters. (It might be somewhat of a lenient case since you do not interact with the person who is doing the work – see Mishna Berura 307:24.) It is generally permitted to have a non-Jew do work for you on Shabbat if they are doing it for their own purposes. When one pays the non-Jew to do work that the Jew wants, the major distinction is as follows. If the non-Jew is paid by time, it is considered doing work for the Jew; if he is paid per the job, it is considered that he is working on his own behalf (for the pay) (Shulchan Aruch, Orach Chayim 247:1). UPS obviously gets paid for the job, which is good. On the other hand, even in that case, if one instructs him, explicitly or implicitly, to do the work specifically on Shabbat or Yom Tov, it is forbidden (ibid.).

Therefore, you would have to give them a time for pick-up that would not necessarily be on Shabbat or Yom Tov (i.e., they have time before or after). From a look at their site, it seems that one’s request can be made for anytime (24/7). On the other hand, in a response to my written question (I cannot gauge the expertise of the specific customer service worker), pickups are generally done from 9 AM to 7 PM. Accordingly, during some of the year, if you allowed them to come all day, it would not necessarily be on Shabbat/Yom Tov and at other times, it would be on the same halachic day. The halacha is that it is not enough to provide them a theoretical alternative to work on Shabbat, but it must be practical (Mishna Berura 307:15). (You could ostensibly give them a two-day window to come on, but your question implies that you have a reason for it to be on one specific day and not the day after. The day before would also be fine.)

An interesting consideration arises with two days of Yom Tov. Is it permitted to tell them to come, say, anytime on Monday, when Monday is the first day of Yom Tov and Monday evening starts the second? This should be fine for any Yom Tov other than Rosh Hashana. That is because we treat each day as a mutually exclusive doubt. Namely, if the first day is holy, the second is not. If the second is holy, the first is not (Shulchan Aruch, OC 513:5). So if they have all day and part of the night of Monday, they have the opportunity to pick up on chol. Rosh Hashana, in contrast, is treated as two definite days of Yom Tov (ibid.).

There is still a problem, due to the halacha that one is not allowed to have a non-Jew take an object from a Jew’s home on Shabbat, unless he took it unexpectedly (Shabbat 19a). All explain that it has to do with marit ayin, but differ as to what people will think. The Shulchan Aruch (246:2) says that one will think that the Jew told him to carry it out for the Jew’s benefit into the public domain. If that is the case, then if the non-Jew lives within the same eiruv as the Jew’s home, there would be no problem, and it is possible that the same would be true of at least some cases on Yom Tov even without an eiruv (Taz 246:3). The Rambam (Shabbat 6:19) says that people will think that the Jew improperly sold or the like to the non-Jew on Shabbat. In that case, it applies even within an eiruv (Magen Avraham 246:6; see Sha’ar Hatziyun 246:7). In this case, it would seem that according to everyone there should be marit ayin because one who sees the non-Jew taking it on Shabbat or Yom Tov will not realize that he did not tell him to come specifically on the holy day (see Mishna Berura 252:17). Therefore, if you want the pick-up, in addition to including a possibility of chol pick up, you should also have it picked up from a non-Jewish neighbor’s house.

We have to deal not only with the question of whether an avel should be chazan on Rosh Chodesh, but with whose call it is – the shul’s or the avel’s.

The Maharil (Shut 22) is the primary source about limiting when an avel can be chazan. He says that an avel should not be chazan on Shabbat, Yom Tov, and for Hallel because of the simcha associated with those tefillot. The Rama (Yoreh Deah 376:4) cites this idea only in regard to Shabbat and Yom Tov, writing that the practice is for them not to be chazan although it is not forbidden, but Ashkenazi Acharonim accept it for Hallel as well. There is quite an even set of opinions and varied practices regarding the rest of Shacharit as well as Mincha and Maariv on days when there is Hallel (Rosh Chodesh, Chanuka) and Purim (see a survey in Divrei Sofrim, YD 376:94). Therefore, both practices are legitimate, and that is not our main interest.

The minhag is related to a discrepancy between the festivity of the tefilla and the avel’s sadness (or an aura of strict judgment – see Taz, OC 660:2). But who are we trying to “protect”? If we are protecting the congregation from an avel who is not capable enough to elevate them to the proper mood, then it is clearly the shul’s call, and ostensibly the avel (unintentionally) acted improperly. If it is that it is wrong for the avel to thrust himself into the midst of excitement that is incongruous with his avelut, the matter likely depends on his rabbi’s ruling.

Sources that connect the matter to the suitability of the avel to act as a shaliach (agent) of the tzibbur include the Taz (ibid.) and Zera Emet (III:164). My reading of the Maharil itself and of the Maharam Shick (OC 183) indicates that it is a matter of inappropriateness for the avel’s mourning obligations. (I am not convinced my reading is correct; it is not feasible to share the nuances in this forum.) It is possible to distinguish between specific cases. Perhaps regarding Shabbat and Yom Tov and Hallel, the community demands festivity the avel lacks. Perhaps, though, the rest of Shacharit has no special requirements for the chazan, just that involvement in the public service of such a happy day is improper for him. Therefore, we leave the fundamental unconcluded.

Some of those against an avel being chazan for any part of Shacharit, including the Gra (see Chayei Adam II, 138:4) and the Chatam Sofer (see Maharim Shick ibid.), “protested” against those who wanted to be chazan. Why protest what someone else wants to do if there are respected opinions to permit it? One explanation is that they indeed held that it affected the community, whom they represented, more than the avel. Another is that even regarding matters that affect the individual, it is innately wrong to contradict a local minhag (see Shulchan Aruch, OC 468:4). A third possibility, which I find difficult, is that these poskim were so convinced that the other practice was wrong, that they felt a need to save the mistaken person.

Our practical advice is as follows. An avel should ask the rabbi or gabbai if they/the community minds, as publicly conforming is important generally but especially about things having to do with their chazan (see Rama, OC 53:22). If not, there should not be a problem for him to do the part of davening of Rosh Chodesh that he wants. However, if the shul’s minhag is a strongly held one, then whether it is the community’s specific prerogative or a matter of the general rule of not differing publicly from those around him, he should not have been chazan.  

[We trust that our readership is aware of the great distinction between drug abuse and between responsible use of medical marijuana – as prescribed by a doctor in a place it is legal, for those in great need].

It is generally forbidden to eat anything before davening except for water and, for some, tea and coffee (with various opinions about sugar – see Shulchan Aruch, Orach Chayim 89:3 and Mishna Berura ad loc. 22). However, it is permissible to eat food for a health need, even when one is not fully sick (Mishna Berura 89:24). Anyone who has a prescription for medical marijuana is sick enough to be justified to ingest his treatment as needed.

 Regarding Kiddush, there is a quandary. Assuming the brownies have a decent taste, they require a beracha, even though their main purpose is medicinal (Mishna Berura 204:42). Therefore, the halacha is that you should not eat it before Kiddush. On the other hand, you don’t need the Kiddush wine for health reasons, so what justifies Kiddush before davening? The Be’ur Halacha (to 289:1) says that one makes Kiddush before pre-davening eating for health purposes. The Igrot Moshe (OC II:26) disagrees in a case where not all halachic opinions agree that the food lends itself to Kiddush, which raises the purpose that the wine was not justified. However, assuming the brownies are real flour-based cookies and you are having a k’zayit of them, Kiddush is in place (see Mishna Berura 273:25).

Is it preferable to ingest the active ingredient as a non-food, to avoid the undesired situation of eating and Kiddush before davening? This “improvement” makes the halachic situation worse regarding medicines on Shabbat, which are permitted in a food form that is not recognizable as medicinal (see Orchot Shabbat 20:132). While the need likely justifies taking medicine (see Shulchan Aruch, OC 328:17), the halachic issue of eating before davening is easier to waive than that of taking medicine on Shabbat. In the absence of a net gain by an alternative, the medicated brownies are fine.

Now to Birkat Kohanim. The gemara (Ta’anit 26b-27a) derives from a connection between Birkat Kohanim and both nazir and service in the Beit Hamikdash that it is forbidden to duchen when drunk. The gemara indicates this is only a Rabbinic derivation/halacha. A nazir is forbidden only in grape products and service is fully forbidden only after drinking wine (see Kritot 13b). Therefore, some say that there are no restrictions on Birkat Kohanim after consuming something intoxicating unless he is as drunk as biblical Lot was (Magen Avraham 128:55). The Taz (128:35) disagrees and disqualifies one who has drunk anything that makes him unfit to “speak before a king,” and we are stringent to follow this opinion (Mishna Berura 128:141). The halachic cut-off point wine of a revi’it (Shulchan Aruch, OC 128:38) does not apply to other drinks. While the Taz says one should therefore not drink anything intoxicating before Birkat Kohanim, this is reasonable for those who are drinking recreationally, not for one whose use of something “intoxicating” is medically necessary. (see Chayei Adam I, 32:7 regarding Kiddush on a small amount of whiskey before Birkat Kohanim.) Therefore, assuming you will make Kiddush on grape juice and that during Birkat Kohanim you will be acting in a fully presentable manner, you should perform the Torah-level mitzva of Birkat Kohanim.

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).