Home > Ask The Rabbi
ASK THE RABBI
Do not hesitate to ask any question about Jewish life, Jewish tradition or Jewish law.
Workplace Requirement for Vaccination[This question was sent by a European rabbi.] A business owner demands that his employees be vaccinated against Corona due to the type of work done and makes them sign a waiver of claims for damages stemming from the vaccine. Can an employer make such a demand and transfer risk to a reluctant employee?
[The answer (written on Jan. 15, 2021) is a short, general, fundamental one and should not be seen as giving the whole picture regarding claims in a specific case. It also can be impacted significantly by local law and health policies, which may differ by location and by changes in the situation and scientists’ knowledge on the subject. Our general instruction is for all to follow public health guidelines and consensus (see Shulchan Aruch, Orach Chayim 328:10). At this point (with 30 million given worldwide), vaccination appears safe and effective and enjoys medical consensus.]
Regarding the morality of requiring a theoretically risky action, many jobs include risk, e.g., exposure to contagion, chemicals, extensive driving. It is legitimate for an employer to put his worker in necessary, responsibly assumed risk (Bava Metzia 112a). If, based on scientific consensus (which in many workplaces worldwide appears likely), the workplace will be safer overall if all members vaccinate, it is morally prudent to protect the staff as a whole. Should the other worker’s be forced into working with people who are endangering them?! Would the unvaccinated worker agree to be sued if he causes death or serious harm to a co-worker whom he infected (some 5% of the vaccinated are presently expected to be vulnerable)?!
We now turn to the efficacy of the waiver. The rule is that conditions on monetary obligations are binding (Ketubot 56a), and written commitments are a strong way of formalizing commitment (see Ketubot 101b; Rama, Choshen Mishpat 12:7). Sometimes a conditional agreement is not binding because the one committing may not have believed the situation would occur (asmachta – see at length in Shulchan Aruch, CM 207). This is apparently not a problem here (analysis is beyond our scope).
On the other hand, one who is coerced into a one-sided commitment (e.g., waiving damage claims) is not bound to it if either he made a moda’ah (a formal statement nullifying the step taken due to another’s coercion) or he has proof of coercion (Shulchan Aruch, CM 242:1). It would not be coercion if the employer had the legal/moral right to force the worker to take a vaccine if he wanted to be or remain employed. (This can depend on too many factors to discuss here, including governmental regulations employed to deal with the health crisis, which fall under dina d’malchuta powers (see Rama, CM 369:11).) When the employer has the right, it is worker’s decision whether he wants the job enough to accept dictates he opposes, and a decision based on a difficult situation rather than coercion initiated by a person is not halachic coercion (see Bava Batra 47b).
There is some chance of late-emerging bad news on coronavirus vaccine safety, and a given person can end up being the “one in a million” with a serious reaction. However, our mentor, Rav Zalman Nechemia Goldberg z.t.l., taught an important idea about medical malpractice (see Techumin vol. XIX, p. 320). The discussion of malpractice applies only when there was a mistake, considering the situation. When a doctor recommends/performs a procedure that is correct based on benefits vs. risks, and it failed based on no clear mistake, there is no basis to sue. Claims must be based on p’shi’ah (negligence). When a patient is part of the minority of people for whom the risks come to fruition, the one giving the medical advice is not culpable. Therefore, in our case, the waiver is unnecessary, as the boss should not be culpable. If the waiver makes the boss feel good or protects him from a non-halachic legal suit, so be it. If the FDA and its counterparts turn out, chas v’shalom, to have done their job poorly, suits can be made against governments.
Challot on the Table for KiddushWe like to keep our challot in a warm place until bringing them to the table after netilat yadayim so they taste their best. Must they be on the table during Kiddush?
The question to start with is: why do we (Shulchan Aruch, Orach Chayim 271:9) cover the challot?
The gemara (Pesachim 100a-b) mentions “spreading out a cloth and making Kiddush” regarding Kiddush when a meal is in progress. The Yerushalmi (as cited by the Rosh, Pesachim 10:3) discusses covering challa to avoid “embarrassment” that we use “lower-level” wine over bread for Kiddush. The gemara (ibid.) actually says that we do not usually “bring out the table” until after Kiddush. Tosafot (ad loc.) raises a contradiction with a gemara (Shabbat 119b) that the angels who escort a ba’al habayit from shul only bless him if they find the table set. Tosafot answers that in Talmudic times, mini-tables were brought for each person after Kiddush but were set elsewhere previously. It is harder to bring in today’s bigger tables, so they are set at the place of Kiddush, and therefore (at least the challot) need to be covered. The She’iltot explained that it is clearer that the food is to honor Shabbat if it is brought after Kiddush. Being covered is enough for this effect. The Tur (OC 271) cites another reason – the covering reminds us of the man from the desert, as it was covered with layers of dew. The Mishna Berura (271:41) summarizes three distinct reasons to cover challa – 1. Honoring Shabbat by properly timing its arrival; 2. Not embarrassing bread; 3. Reenacting the man. Many discuss possible nafka minot between them, including whether a covering is needed if one makes Kiddush over challa rather than wine.
According to the simple reading of the gemara/Tosafot, accepted in practice by the Gra (Ma’aseh Rav 118), and the matter of embarrassment, it seems better if the challot (and perhaps other food – Nefesh Harav p. 158) are not present. Covering is permitted, not required. Nevertheless, the Shemirat Shabbat K’hilchata (47:24) says that the minhag is to specifically put the covered challot on the table before Kiddush. There are at least three ways to explain this.
1) The Shulchan Aruch (OC 262:1) learns from the story of the angels that one should prepare his table and beds before Shabbat. While this refers to a table cloth, others (including Tosafot ibid.) apply it also to challot. According to some, this should be done even before Shabbat enters.
2) The Aruch Hashulchan (OC 271:22) says that since Kiddush must be at the place of a meal, it is respectful to have the challot present at Kiddush. This seems to contradict the gemara that prefers the food being brought later. However, it is possible that since our system of a covered challa replaced that of prepared mini-tables, this is the desired manner of preparedness and timing.
3) Regarding the idea of the man (which the Shulchan Aruch, OC 271:9, adopts, as he writes about a covering below and above), it is unclear whether it needs to be covered at the time of Hamotzi (see Mishna Berura 271:41). Some assume the reminder can be done in a short time (Pri Megadim, 271, MZ 12), and perhaps not specifically at Kiddush. Az Nidberu (II:2) argues that it has to be at a significant time. According to those who keep the challot uncovered at the time of Hamotzi, it might, then, need to be man-like during Kiddush.
There are a variety of opinions on which reason is the main reason for covering. There is logic to say we should strive to accomplish all elements (Minchat David I:2). In any case, the minhag, recognized by Shemirat Shabbat K’hilchata, could very well have value. One can question whether the fact that the great majority of Shabbat tables have challot on the table is the sign of a full minhag, since for most people, there is no reason not to, whereas you have a k’vod Shabbat reason. However, proper planning (including avoiding hatmana) can allow you to have warm challot even if you bring them to the table a little “early.”
Borer on PlatesWe set our Shabbat table with a larger "charger" plate under the main plate. At the end of the meal, we clear off the dirty dishes and leave the charger plates. Is there a problem with borer (selecting)?
Avoiding suspense – it is clearly permitted. One reason for our confidence is that while charger plates may be new, fish or appetizer plates sitting on top of main plates and are then removed, have been common, without poskim over the generations being bothered. We now set out to identify the precise reason(s).
Ostensible borer is permitted when three conditions are met: the desired is taken from the undesired; it is done soon before usage; it is done by hand. The classic usage of a plate is to serve on it; you are taking the plates right after their use, not soon before the next meal. Even if you were to wash them right away and use them later on Shabbat, selecting them specifically among other objects in a taarovet (mixture) of utensils would not be considered for immediate use (Orchot Shabbat 3:121).
Our rationale of permitting removing the dirty off the charger plate at meal’s end will thus be based on the premise that there is no halachic taarovet. In Living the Halachic Process (vol. I, C-19), we dealt with sorting silverware after washing at night after they were joined together in a sink, well before their being placed on the table the next day. We presented the machloket among contemporary poskim, which we will review very briefly, on whether this may be done without special care.
The Terumat Hadeshen (57) suggests that there is no borer between relatively large foods in close proximity to but clearly discernable from each other. However, he stops short of permitting this in practice, and the Rama (Orach Chayim 319:3) concurs.
Yet, Rav Ovadia Yosef (V, OV 31) is lenient regarding silverware due to a combination of (weaker and stronger) possible leniencies. 1) According to the Aruch Hashulchan (OC 319:9) borer does not apply to big pieces that are clearly discernable; the Ohr Sameach (Shabbat 8:11) posits similarly that borer does not apply for almost all intents and purposes to utensils or clothes (even according to the Taz (OC 319:12) that it is not limited to food). 2) The Pri Megadim (319, MZ 2) says that if the various objects being sorted will all be used at the same time in the future, it is permitted. 3) Perhaps (it is a fringe opinion) borer only applies to things that “grow” from the ground. 4) Selecting for the next meal is considered short term no matter when that meal is. Leniencies 1 &3 apply to this case, whereas #2 and #4 do not (at least at the last meal the plate will be used). Thus, one cannot prove from Rav Ovadia’s responsum that he would be lenient here. While the Tzitz Eliezer (XII:35) also considers the Ohr Sameiach’s position a significant contributor towards leniency, the Mishna Berura (319:15) and Shemirat Shabbat K’hilchata (3:78) do not.
However, we are confident that all poskim would not consider the two plates sitting one on the other to be a taarovet, for the following reason. Everyone agrees with the Terumat Hadeshen’s basis thesis that objects that are touching but absolutely separate are not a taarovet. His and the Rama’s hesitation was because it is not always easy to know the level of ease of discerning. In our case, though, since the normal usage of these plates is to have a normal plate sitting on top of a charger plate, one can “separate” them with zero concentration and blindfolded with ease. This idea is at the heart of the aforementioned Yabia Omer and Tzitz Eliezer.
We find a close precedent in the distinction between books piled on a table and those in their place and/or labeled in a bookcase (Shemirat Shabbat K’hilchata 3:(179); Orchot Shabbat 3:23-4). While the Shemirat Shabbat K’hilchata is hesitant to use the leniency, taking off the right plate is far easier than grabbing for the right sefer (I not infrequently reach for one book and take its neighbor). The strong logic is only strengthened by the minhag regarding fish plates.
Behavior during Kedusha of Street MinyanimMy neighborhood is filled with outdoor Covid 19 minyanim. I was walking down the street on Shabbat and a minyan across the street was in the middle of Kedusha. In such cases, do I need to stop, keep my feet together, and respond to Kedusha until they are done, or may I continue walking?
The Rashba (Shut HaRashba 1:249) was asked by someone who assumed that if after reciting Kedusha, one enters a shul reciting it, he would be forbidden to repeat it. The Rashba rejects this, arguing that there is no reason not to repeat Kedusha in this manner. The Rama (Orach Chayim 125:2) in paskening like the Rashba, rules that in this case one should do so. Some posit that not repeating Kedusha with the congregation would appear as if he did not agree with the concepts expressed, which is a disgrace (see Yabia Omer VI, OC 20). All agree to this concept regarding the first pasuk of Kri’at Shema (Shulchan Aruch, OC 65:2). Others explain that the opportunity to sanctify HaShem’s Name obligates one to do so (Igrot Moshe, OC III:89). Both pieces of logic also apply to Kaddish and Barchu, where the congregation joins together to sanctify HaShem’s Name (see ibid. and Mishna Berura 65:9). Answering Kedusha is important enough to allow one to recite its crucial sections during P’sukei D’Zimra and Kri’at Shema (Shulchan Aruch, OC 66:3 and Mishna Berura 51:8).
Yet, significant sources posit that there is just a preference rather than a full obligation to answer Kedusha outside one’s own minyan. Rav SZ Auerbach (as cited by Ishei Yisrael 24:(62)) notes that the language of the Shulchan Aruch (OC 55:20) is that one who is adjacent to a minyan reciting Kaddish or Kedusha may answer with them; he does not say they are required to. Rav Elyashiv is similarly cited regarding someone walking outside a shul (Tefilla K’hilchata 13:(119)). Others (see Ishei Yisrael ibid.) argue that while the Shulchan Aruch is focused on the ability to connect to a minyan one hears, if they are able, it is obvious that they must.
There is much discussion about the challenges of davening in a place like the Kotel. Many (including Rav Chaim Palachi in Nishmat Kol Chai I:4) assume that there is an obligation to answer other minyanim and recognize this can be unconducive to focusing on one’s own davening/minyan. That conflict between competing mitzvot allows some to raise concepts such as osek b’mitzva patur min hamitzva (see Tzitz Eliezer XI:3). Also, as part of a different minyan, continuing to daven with one’s own minyan looks less like rejecting the words coming from an adjacent minyan.
Street minyanim may raise other factors. Sometimes one is very close and/or in the same domain even when not part of the minyan. On the other hand, sometimes there can be “dirty matters” (e.g., garbage bins, dog droppings) in between oneself and the minyan, which may preclude answering (Shulchan Aruch ibid.)Generally, we would posit that walking down the street, there is usually no compelling reason not to answer, which is what we expect one to indeed do. One is permitted to continue walking during Kaddish as there is never an obligation to not move (it is less respectful if he looks like he is ignoring it). Kedusha it is more complicated. While the Shulchan Aruch (Orach Chayim 95:1) requires having one’s feet together during Shemoneh Esrei, to “imitate” angels in service of Hashem, he writes regarding Kedusha that it is good to maintain that position, based on the same comparison (ibid. 4). There would still need to be a compelling reason not to do so. On a weekday, Kedusha takes less than a minute, even until the end of the beracha (there is some dispute as to when the status of Kedusha ends – Ishei Yisrael 24:26). On Shabbat, the additional liturgy within Kedusha not only takes longer but it is not considered a full-fledged part of Kedusha (see Mishna Berura 125:1 regarding learning quietly then). Therefore, one who has reason to make progress going down the street during the singing of those parts has what to rely upon.
Is a Second Netilat Yadayim Necessary?If one does netilat yadayim (=ny) before eating rinsed fruit (without a beracha), and then decides to eat bread, should he wash again, with a beracha?
Your question is related to a famous yearly practice. The gemara (Pesachim 115b) says that at the Seder, the first ny (for karpas) does not preclude a second one because, in the interim, one takes his mind off of his hands (hesech hada’at). Tosafot (ad loc.) asks why we need that reason, considering that the minor ny anyway should not exempt from ny on the matza, which is a full-fledged and different Rabbinic obligation. Tosafot answers that we might have thought that even a non-required ny precludes the need for a repeat when required.
The Beit Yosef (Orach Chayim 158) understands from Tosafot that even if one does a lower-level-obligation ny for non-breads dipped in liquids, he still has a full obligation for ny (with a beracha) if he now wants to eat bread, and the Shulchan Aruch (OC 158:7) rules this way. The Rama (in the Darchei Moshe and on the Shulchan Aruch, both ad loc.) says that this is so only when he had hesech hada’at (or a long time passed – Biur Halacha ad loc.). Otherwise, one would not make a beracha on the bread. (The Biur Halacha ibid. posits that if there is no water for a second ny, one can rely on the first ny.)
There is a parallel discussion regarding one who leaves the bathroom right before a meal. If he does one ny for both needs, both the option of eating first and of reciting Asher Yatzar first raise problems (beyond our present scope). Therefore, the Shulchan Aruch (OC 165:1; the Rama does not object) rules to wash two times; the first is followed by Asher Yatzar, the second, by the beracha of Al Netilat Yadayim.
The Magen Avraham (165:2) asks why according to the Rama, is there a beracha on the second ny if it is so soon after another ny. His first answer is that the beracha can actually relate back to the first ny, as he knew he would eat bread. The second answer, which he prefers, is that the first washing should be done in a manner that is invalid for bread (e.g., without a cup), so that he can say Asher Yatzar without causing a problem with the beracha on a full-fledged halachic ny. Rabbi Akiva Eiger (ad loc.) rejects the Magen Avraham’s first answer because if the second ny added nothing, the beracha on ny has to relate to the first, significant ny, and therefore Asher Yatzar would cause a problem. The Mishna Berura (165:2) and many others (see Sha’ar Hatziyun ad loc.) accept the assumption of the Magen Avraham’s second answer – if nothing happens to the hands between two acts of ny in relative close proximity, there is no beracha on the second one, even if the first was not a ny with a beracha.
It might seem that before eating bread soon after washing for fruit, a Sephardi would make the beracha on the ny, following the Shulchan Aruch, and an Ashkenazi would not, based on the Rama. However, this is far from clear. The Yalkut Yosef (OC 158:19) rules that even a Sephardi does not make a beracha because Tosafot is based on an assumption (which we do not accept) that the netila before dipped foods is only for cleanliness. Ashkenazim also have to determine how long the effect of the first netila precludes a new ny with a beracha. The Biur Halacha (to 158:7) says that after a few hours, it is ineffective unless he originally intended it to last for a later eating and did not have hesech hada’at. We note that the Darchei Moshe (ibid.) assumed that the delay between karpas and motzi matza warrants a new ny with a beracha and that not everyone has an hours-long Maggid section.
During a meal, we do not assume hesech hada’at, but when one finishes it, we normally treat the situation as one where we assume it (see Mishna Berura 164:7). It is unclear how long after ny for fruit we should assume hesech hada’at. A trick to use for such a case of doubt is to touch parts of the body that are usually covered, making ny with a beracha a definite subsequent need (see Yaskil Avdi, II, OC 6).
Is Rounding Up Ribbit?I was told that the "Paybox" app that allows sending money enables payments only of full shekalim. So when my wife and many others use it to repay a friend who bought something at the grocery that has an agurot element, they must round the numbers. Is rounding up a problem of ribbit?
[For those who are unfamiliar with Paybox (an Israeli company), it resembles Paypal but is mainly for non-commercial payments, as people make groups (of various sizes – similar to WhatsApp) for different payment purposes.]
Torah-level Ribbit applies only if it was stipulated at the time the loan was made that the borrower must pay back more than he received. However, it is Rabbinically prohibited for the borrower to decide later to give more (ribbit meucheret – Bava Metzia 75b).
A pertinent leniency exists regarding a different case of Rabbinical ribbit. It is forbidden to lend an amount of a commodity with the stipulation that he will return the same amount of that commodity (se’ah b’se’ah - Shulchan Aruch, Yoreh Deah 162:1). The reason it is forbidden is due to the possibility that the commodity’s price will go up (perhaps even sharply) and the borrower will be compelled to return more, value-wise, than he received. Among the leniencies of se’ah b’se’ah (see ibid. 1-3), the relevant one for us is that people may lend a loaf of bread for a loaf of bread (Rama, YD 162:1, based on Bava Metzia 75a). Rashi (ad loc.) implies that this is a special leniency for the Rabbinic se’ah b’se’ah, raising the question as to whether it applies to other Rabbinic ribbit cases. However, the Rama (ibid.) cites the explanation (as does Mishna Berura 450:2) that people do not care about small amounts of fluctuations. Realize that regarding ribbit, much depends on intentions and assumptions about them. On the one hand, if one demands interest, it is forbidden by Torah law to take even less than a peruta worth (which is rarely a halachically significant value) of interest (Shulchan Aruch, YD 161:1). In contrast, in some cases when it is clear that the ostensible interest is not being given out of a duty to compensate the lender, ribbit is not violated (see Bava Metzia 75a).
Should we then say that an innocuous, small amount of ribbit meucheret (like our case) should be permitted? The problem is that direct ribbit meucheret might be worse than se’ah b’se’ah. The latter does not look like ribbit, as one returns the same thing he took. In contrast, here, a clearly larger amount, even if only by a little, is being given during repayment (see Brit Yehuda 5:8), which may make it assur. Still, after a long analysis, the Minchat Yitzchak IX:88 says that one who does not have exact change may give more than owed if the difference is insignificant. (The Minchat Yitzchak still suggests to tell the lender to give the change to tzedaka on the borrower’s behalf). While recent sefarim cite the Minchat Yitzchak in more strict (Torat Ribbit 45:12) and more lenient (The Laws of Ribbis (Reisman) p. 43) manners, we can assume that nowadays rounding up a half a shekel between friends is insignificant. Since intention and how things look are important, if indeed Paybox requires its users to round to the shekel and still people happily use it, then for these people, it is clearly insignificant (see Bava Metzia 75a, regarding talmidei chachamim for whom it is clear it is not being given as ribbit).
The only question is in a case, where at the time of the “loan,” it was known that payment was going to need rounding, e.g., they always pay each other with Paybox, and they always round up (i.e., even by more than half a shekel) because it is not nice to borrow and then pay back less. There, one could get into Torah-level ribbit of a small amount. In those cases, it would be right for the recipient to give to tzedaka (as above) or say that the overly reimbursed owes change at some point and keep an at least loose accounting. But if everyone truly is not makpid on small amounts, then it is best and natural to simply follow the regular rules of rounding.
Eat Meat on Shabbat when it Bothers his Wife?My wife and I are relatively newly married. I am used to having fleishig Shabbat meals, whereas my wife is disgusted by meat (including poultry, mainly by the smell). Is it right for us to stop having meat at Shabbat/Yom Tov meals or should we try to figure out an arrangement that my wife can live with?
There is a mandate of “v’karata laShabbat oneg” (you shall call Shabbat a day of indulgence) (Yeshayahu 58:13). The gemara (Shabbat 118a-b, as does the pasuk ibid.) promises great reward for those who indulge properly in Shabbat meals, and the Mishna Berura (242:1) cites opinions that the basic obligation is from the Torah.
The basic obligation of the two main meals of Shabbat is to have bread (Shulchan Aruch, Orach Chayim 274:4) and [preferably wine for] Kiddush. But as far back as we know, it has been customary that the festivity of these meals includes meat, and meat features prominently in the sources. The Shulchan Aruch (OC 250:2) states: “He should have much meat, wine, and treats according to his ability.” While one should not normally nullify oaths on Shabbat, one may do so for a need of the day. The Shulchan Aruch (OC 341:1) gives an example of undoing an oath not to eat on that Shabbat, and the Mishna Berura (341:2) applies this even to an oath not to eat meat because “eating meat is a mitzva on Shabbat.”
However, there is strong evidence that there is no obligation to eat specifically meat (or poultry) on Shabbat. An onen’s (one before the burial of a close relative) prohibition to eat meat or drink wine is suspended on Shabbat (Shulchan Aruch, Yoreh Deah 341:1). Rabbeinu Yona (Berachot 10b), accepted by the Rama (ad loc.) and the Shach (ad loc. 7), says the onen is not required to eat meat if he does not want to because it is not an obligation to have specifically meat. The Mishna Berura (ibid., in Sha’ar Hatziyun 341:4) said that the Shabbat need justifying nullifying oaths is not limited to meat specifically but to any food that makes Shabbat enjoyable.
The Mishna Berura (242:1) posits that the foods mentioned in the gemara as appropriate for Shabbat are examples based on their time and place, and that we generally assume that meat is festive in people’s eyes, but that this need not be across-the-board. If any food preference (besides bread) is somewhat objective it is fish, as it includes a mystical element, and even there it is not required for those who dislike it (see ibid. 2).
So clearly, your wife should not eat meat if it bothers her in any way. But I understand your question not to be about your wife eating meat, but whether meat should be served for you or guests, who do appreciate it. Let us assume that you cannot find a technical system, such as your preparing a meat-based food whose smell does not offend your wife, but that she is capable of putting up with it with sacrifice (as she probably does as a guest of others or at semachot).Lack of funds is grounds for having a simple meal, even if one can obtain more enjoyable food with sacrifice (Shabbat 118a; see details of prioritization in Mishna Berura 242:1). We also know that provisions to make the house more conducive for familial harmony (i.e., light in the house) are more important than either wine for Kiddush or Chanuka candles (Shabbat 23b). A husband should honor his wife, by fulfilling her needs and reasonable desires, more than himself (Rambam, Ishut 15:19). Therefore, your position should be that meat should not be served at your Shabbat table. If your wife feels or received advice (do not wait for this to happen) that she should/wants to sacrifice for your Shabbat experience, then you are blessed with the type of disagreement we wish on couples. It is hard to know based on a short description who we think should “win this disagreement,” and sometimes a compromise is best for all parties. As long as you are sincere about your willingness to forgo meat, things should work out fine. If, when you im yirtzeh Hashem have older children, they feel deprived, the matter can be revisited.
Finding Out Late about the Presence of a Kohen or LeviAs a gabbai, sometimes I do not realize either that a kohen is present and I give the first aliya to a non-kohen, or that a levi is present and I give the second aliya to the kohen. What do we do when this is discovered?
It depends. The Shulchan Aruch (Orach Chayim 135:6-7) generally discusses your two cases, when the mistake was discovered after the oleh began the opening beracha. Both when a yisrael began the beracha for the first aliya before the kohen entered the shul (ibid. 6) and when a kohen began his second aliya when it turned out a levi was present, the mistaken oleh finishes the aliya. The clear implication is that when they had not started, we switch to the correct person even though the wrong one was called up.
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 –Shulchan Aruch ibid. 8), as is giving a first aliya to a non-kohen (Shulchan Aruch ibid. 4). Therefore, we do this only when there is an important reason. We are not depriving the person who is being asked to step aside of something he deserves: The yisrael never had claims to the first aliya, and we keep him at the bima until we can give him the third aliya (Shulchan Aruch, ibid. 6).The kohen already had his aliya, he is just being held back from an unusual aliya (and according to some, a b’di’eved one – see discussion in Maharam Shick, OC 61), and the levi getting the aliya after him raises no questions about his standing as a kohen.
In the case that a yisrael started the first aliya’s beracha, we stick with the “wrong person” to avoid the serious problem of beracha l’vatala (Beit Yosef, Orach Chayim 135, citing the Avudraham). The concern that not switching then will make it look as if the kohen is not a kohen is not severe. People can understand that he was not present or noticed (ibid. citing the Rashba). We do not call up the kohen for the next aliya because that would actively make him look like a non-kohen, as he follows a yisrael who received the first aliya (Mishna Berura 135:20).
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 commanding the tzibbur to bless Hashem (which is Barchu’s role) and their doing so (“Baruch Hashem Hamevorach…”) has an independent value (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 (Aruch Hashulchan, OC 135:15), it is not a problem to do an arguably extra Barchu (Kaf Hachayim, OC 135:39).
One point that is not agreed upon is whether the first aliya of a non-kohen was valid when the kohen was present and just was not noticed, as the Shulchan Aruch (OC 135:6) addresses the case when he had not yet arrived. The Pri Chadash (135:6) infers from the gemara (Gittin 59b) that passing on the takana to have the kohen go first renders the berachot and the aliya invalid even b’di’eved. The Magen Avraham 135:11 disagrees, reasoning that since regarding the kohen who took the levi’s aliya, the Shulchan Aruch (ibid. 7) says that the aliya is valid even if the levi was present, the same is true of the skipped kohen. One can argue on behalf of the Pri Chadash that the takana to give the first aliya only to the sanctified kohen is stronger than the halacha that a levi gets the second aliya before allowing the kohen to get another one. However, the Noda B’yehuda cites an interesting proof against the Pri Chadash, and this is what is accepted (Mishna Berura 135:20).
Davening Outside with GlovesI daven in an outdoor minyan due to Corona. Is it permitted to wear gloves while davening in cold temperatures?
First, I am proud to be in the same nation as a person as sincere as you. The Bach (on Orach Chayim 91), an early Acharon, is the first major source to raise a problem of wearing gloves during davening. The Magen Avraham (91:5) and Mishna Berura (91:12) cite the Bach without opposition, so your question has merit,
A look into the root of this ruling will help us apply it to your case. The Bach’s statement is cryptic and he cites a harsh pasuk as applying to wearing gloves during davening. Most tefilla/clothing rules relate to the body being insufficiently covered (Shulchan Aruch, OC 91:1, 3-5). It is unusual that covering too much could be a problem.
Some understand (see Halichot Shlomo 2:18) that the Bach viewed wearing gloves during davening as haughty, which fits the cited pasuk. This is surprising, considering that “dressing up” is usually desired for davening (Mishna Berura 91:12). However, it is possible that some types of over-dressing go beyond nice and are haughty.
The Netah Sorek (OC 6) connects the Bach to a gemara (Pesachim 57a) that roundly criticized the kohen gadol, Yissachar Ish Kfar Barkai, for wearing gloves while working with korbanot. This was forbidden due to chatzitza (a disqualifying break) but also was a sign of haughtiness (Rashi ad loc.). There is clear room to distinguish between the contexts. A kohen’s mitzva includes serving with his hands, and for it to be beneath his dignity to touch things is disgraceful. Tefilla is carried out with one’s mind, heart, and mouth. Is it necessarily a disgrace if, at the same time, his “handwear” is haughty? His logic is apparently that since clothing for tefilla is important, just as insufficient is offensive, so too excessive fanciness can set the wrong balance when approaching Hashem.
Several Acharonim make the simple argument that if one wears gloves because of the cold, there is no haughtiness (Be’er Moshe IV, 39; Halichot Shlomo ibid.). While the Neta Sorek (ibid.) agrees to the concept, he argues that it is only permitted regarding gloves that are clearly worn due to cold (which I have to believe is your case).
The Magen Avraham (ibid.) presents the Bach’s problem with gloves as their being clothes that travelers wear, and Kochvei Yitzchak II, 20 attributes this idea to the author of the Terumat Hadeshen. While one may daven on the road when needed (Mishna Berura 90:11), it is best to daven indoors (Shulchan Aruch, OC 90:5) and well-settled there (see similar idea, ibid. 20). It is unclear if the Magen Avraham means that gloves are road-related because outside it is cold, and one should look different inside. If so, the Aruch Hashulchan (OC 91:6) allowing to wear an outer coat during davening when it is cold is instructive. If he means that travelers wear them as a type of work glove (which the Halichot Shlomo says is one of the things the Bach objects to), this should not apply to gloves made to protect from the cold.
In short, we believe, like Halichot Shlomo and Ishei Yisrael (10:4) that in the context of clear protection from the cold, it is permitted to wear gloves, even without extenuating circumstances (like Corona). If someone would want to be machmir (which, again, is not indicated from the sources) as a matter of valor, something would have to give. One of the hardest things in Halacha is, in a situation where something less than ideal is necessary, how does one decide which option is least objectionable. Halacha forbids self-inflicted suffering (see Bava Kama 91b), and it also detracts from kavana, a factor which is behind many halachot of tefilla. The option of davening indoors without a minyan is certainly far less desirable than an unnecessary stringency. Our biggest concern is that chumra could be a tipping point (for someone) toward davening in an indoor minyan. Currently in your location, that could be a deadly mistake. Therefore, one should not entertain stringency on the matter.
Pressuring a Store to Take Back PurchaseI bought something in a store and wanted to return it. The customer service person was reluctant to take it back, but I was persistent and she eventually agreed to it. Was it permitted for me to handle it as I did, or did I violate lo tachmod (I heard in a shiur that you can violate this when pressuring a store to give a refund)?
Our discussion relates to cases in which you do not have a legal right to demand a refund. In such a case, forcibly returning the object is like forcing someone to buy it. Regarding coercion to make a transaction, if someone is coerced to sell something and at the end says “yes,” the sale is final (Shulchan Aruch, Choshen Mishpat 205:1). When he is coerced to buy something, there is a machloket whether the purchase is final (Rama ibid. 12 – no; Pitchei Teshuva ad loc. 11 – yes). Even according to the Rama, it is hard to believe that you would try or succeed in coercing the store to take it back. When a civil person is just persistent, even if annoying, it rarely reaches such a level.
However, acting persistently to try to bring about a transaction in which the other side is not interested does raise questions of lo tachmod (see Shulchan Aruch, CM 359:10) one of the Ten Commandments. However, in this case, lo tachmod (not coveting) does not apply for a simple reason. All of the cases of lo tachmod that I managed to find in classical sources (starting from the examples in the pasuk) and quite a few contemporary sources referred to desiring to receive an object (or person) that belongs to one’s friend. It becomes forbidden when one wants it so badly that he attempts to get it “by hook or by crook” (see Rambam and Ra’avad Gezeila 1:9 for one discussion of the point of violation). They do not mention trying to sell something by pressuring a buyer.
I contacted the talmid chacham who gave the shiur you heard. The only source he found was a footnote in the Pitchei Choshen (Geneiva 1:(26)). He admitted that he was not sure lo tachmod applied. In fact, Minchat Asher (Devarim 9) argues convincingly that one can only be chomed an object that he wants. Wanting to sell something and receive financial compensation is not coveting anything. We point out that desiring money is not forbidden or even negative – we daven and have many sources looking positively about acquiring wealth and certainly a basic living.
It also is quite clear that the Pitchei Choshen did not contradict this thesis. He discusses, in close proximity, lo tachmod and the similar chamas. The difference between the two is that in lo tachmod the seller eventually agrees, whereas chamsan is when the seller never agrees (Bava Kama 62a – it differs from a ganav in that he paid for it). The Pitchei Choshen writes that chamas (not lo tachmod) applies even to one who forces someone to buy from him. While this is difficult on a couple of grounds (beyond our scope), it is more tenable for chamas to apply to selling as well, because in the case where there was never agreement, there is no sale, and therefore the “seller” had no right to take the money even after the fact. This is not the same idea of lo tachmod, which is over-desiring something that is off limits to you (even if some action is necessary to concretize it – see Rambam ibid.). In your case, you did not desire anything; to the contrary, you wanted to get rid of something that did not interest you and just recover the money you regretted paying.The maggid shiur wrote to me that even if it is not formally lo tachmod, it has elements of it regarding the spirit of the law. I agree with this contention partially. It is bad middot to pressure people to do something that they do not want and are not required to do. But if one focuses on convincing the proprietor that if he does not agree, he will prefer patronizing a more accommodating store, which he has every right to do, that should not be a problem. If you pressured him obsessively or with improper tactics, that is against the spirit of the law … but not the spirit of lo tachmod.
Top of page
Send to friend