ASK THE RABBI

The broadest of the Torah prohibitions against lying (even without language of oaths) is “mid’var sheker tirchak” (distance yourself from a matter of falsehood) (Shemot 23:7). Philosophically, we abhor dishonesty. We are to emulate Hashem, about Whom it is said: “Hashem’s signet is truth” (Sanhedrin 64a).   

Yet, gemarot spell out cases in which one may and/or even should lie. One gemara (Yevamot 65b) says that one may lie to preserve peace. One precedent it cites is that Hashem inaccurately related to Avraham what Sarah had said about their chance of having a baby at an advanced age. Another (Bava Metzia 23b) lists three things about which it is appropriate for a scholar to lie. The third example is not to publicize that one’s host was very welcoming, if it will cause unwanted guests to flock to him (see Rashi ad loc.).

In all of these cases, the untruth was said to protect someone else, unlike in your question. However, the above sources include cases of self-protection. The first gemara also gives the example of Yosef’s brothers trying to ward off his enmity with a lie. Another example in Bava Metzia is lying about what one is learning/has learned. Rashi explains it as minimizing one’s scholarship out of humility; the Lechem Mishneh’s understands the Rambam (Aveida 14:13) as avoiding people testing him on a weak topic to avoid embarrassment. This last source is equivalent to your question. But even Rashi’s case makes us think why one can do an ostensible aveira for humility’s sake!

The simplest answer is that the prohibition of lying refers to different types of cases. The pasuk’s context is beit din proceedings, in which the pursuit of truth is at a premium. The Yereim (mitzva 235), while extending the mitzva somewhat, limits it to lies which harm someone. This matter seems to depend on the machloket between Beit Shammai and Beit Hillel (Ketubot 17a). Beit Hillel encourages singing the praises of a bride, even when they are untrue. Beit Shammai argues that this violates “midevar sheker tirchak.” Beit Hillel makes a moral argument based on concern for the feelings of others, but, how does that sentiment dispose of Beit Shammai’s pasuk? Apparently, the argument is whether the Yereim is correct, and we pasken like Beit Hillel (see Rav Perlow on Rasag’s Sefer Hamitzvot, Aseh 22). The other possibility is that even if lying about something innocuous is forbidden from the Torah, Chazal understood, perhaps based on the precedents in Tanach, that in the case of important counter-factors, it is waived.

We have dealt (Living the Halachic Process V, H-2) with poskim’s permission to stage a fake pidyon haben if needed to save a couple from embarrassment about the wife previous pregnancy. K’vod haberiyot (human dignity) justifies significant halachic leniency (Berachot 19b), which far exceed some of the factors that, we have seen, justify lying.

There are two similar halachot having to do with the 4 amot around one who is davening Shemoneh Esrei, which people often confuse, but their parameters and reasoning could be important here. One is not walking in front of one who is davening Shemoneh Esrei (Shulchan Aruch, Orach Chayim 102:4-5). The other is our issue of sitting within the 4 amot of one who is davening Shemoneh Esrei (ibid. 1-3).  

The source of the latter halacha is the gemara (Berachot 31b), which in discussing how Eili Hakohen was near Chana who was standing in prayer, derives that he was not sitting too close to her. The main reasons given for this halacha are: 1. It looks as if the one who is sitting does not relate respectfully and thus believe in the davening around him (Tur, OC 102). 2. When one davens, he creates “holy ground” around him, and it is forbidden to take that area lightly by sitting down in it. (Taz, OC 102:3). This differs from the way most explain the former halacha – that walking in front of one who is davening disturbs his concentration.

There are two areas in which to consider leniency. One is based on the difficulty or inappropriateness of standing up. The Shulchan Aruch (OC 102:2) says that if the davener’s neighbor is weak, he may sit. The Mishna Berura (102:10) explains that the logic of looking like one does not agree does not apply when people can tell he is weak. Similarly, since, due to needs of comfort and safety, people avoid standing on a bus, the same leniency applies. Also, the Shulchan Aruch (ibid. 3) says that if one is sitting before his friend starts davening next to him, he is not responsible to get up, at least when the setting is not a shul (Mishna Berura 102:13). However, this latter point is not too helpful in your case. The reason one does not have to get up is because we blame the davener, who should have picked a different place (ibid. 12). Especially here, where the matter is less on the negative impact on the davener but in disgracing Hashem, that would mean that your wife would be at fault for the situation, which you do not want.

Another point is that perhaps it is not problematic to sit next to someone davening if they themselves are sitting. While the K’tzot Hashulchan (20:(26) posits simply that there is no difference, some suggest (see Tzitz Eliezer IX:7) that if the halacha is based on not looking like he respects, it is not a problem if they are both sitting. If it has to do with “holy ground,” then it should not make a difference. While the gemara does not hint at a distinction, the Rambam (Tefilla 5:6) can be read as limiting the halacha to the case of a standing davener. The Meiri, who says that the reason not to sit is to not disturb the davener, is clearer that it applies only when the davener is standing. The Tzitz Eliezer (ibid.) suggests another idea. Sitting for Shemoneh Esrei is on a lower level than standing, to the extent that the Shulchan Aruch (OC 94:9) says that if one had to daven sitting and then has the opportunity to stand, he should daven again. Although we do not follow this (Mishna Berura 94:27), the basic premise is agreed upon. Therefore, maybe the level of holy ground is missing if one sits.

While it is not great to daven on a bus (for the above reason and others), many women are so time-pressed, so that there is little choice but to do so. It seems weird to suggest that such a woman’s husband should not sit next to her, stand, or move away. It is anyway likely that someone will just take his place. As we have seen, there are strong grounds for leniency. There is, though, a win-win idea for a husband in this situation. Some say that if the davener’s neighbor is learning Torah during his Shemoneh Esrei, he does not have to stand (Shulchan Aruch, OC 102:1). So learning would be a good thing, on multiple levels, to do at that time.

The gemara (Berachot 59b) says that when one’s father dies and leaves an inheritance, he recites “Baruch … dayan ha’emet” and then a beracha for inheriting, (Hatov V’hameitiv for multiple inheritors; Shehecheyanu for a lone inheritor). The Rashba (Shut I:245) explains the shocking idea of employing an upbeat beracha due to a loved one’s death – these berachot are not for happiness, which should not exist no matter the inheritance’s size, but for practical gain. The Ktav Sofer (Yoreh Deah 123) explains that we view the death and the financial acquisition as separate, as only “by chance” were significant funds acquired due to a death.    

While the gemara is accepted in the Shulchan Aruch (Orach Chayim 223:2), its practical application has raised pertinent questions. Classical sources imply that these berachot are done right after witnessing or hearing of the death, which is usually when the son is an onen (one before his close relative’s funeral), who may not make berachot. So why does he make this beracha? The Gesher Hachayim (18:2.3) says that the beracha is indeed recited after the burial, but Rav Auerbach (see Shemirat Shabbat K’hilchata 64:(8)) is cited as disagreeing.

Another problem relates to the present minhag that people recite Dayan Ha’emet only soon before the burial. But it makes sense to recite the beracha on inheritance at the time it occurs halachically (the moment of death)! Several poskim (see ibid.; Shevet Halevi VIII:35) posit that it is unseemly for the first religious acknowledgment of a parent’s death to be upbeat; so even nowadays, Dayan Ha’emet must be first. But when? There are logic and textual indications (both beyond our present scope) that the two berachot were meant to go together, so that the inheritance beracha could be right after Dayan Ha’emet (at the funeral). But then it is not connected to any stage in inheritance (see Shemirat Shabbat K’hilchata ibid.), and, worse, I have never heard (or heard of) anyone doing it at that time. Another alternative, with similar problems, is soon after starting aveilut at home (it is permitted during shiva – Mishna Berura 551:98).

Therefore, the P’ninei Halacha’s idea is appealing. One thereby distances the beracha from the death and pain, with emotional and maybe halachic gain (see Teshuvot V’hanhagot II:140). By waiting for a financially significant time, the beracha is linked to the inheritance.

However, while not arguing, we will point out problems with this approach. In the gemara’s time, the main inheritance, real estate (see Ketubot 91a), often took a while to be sorted out (divided up by the brothers), and yet the gemara implies that the beracha was made right away. Since according to most, Shehecheyanu of this type is not obligatory (see Mishna Berura 225:9), there is less need to say it if there is doubt. (If one makes the beracha when receiving personally, Shehecheyanu, which is anyway the safer beracha (Biur Halacha 223:5), not Hatov V’hameitiv, is correct even if he has brothers.). There is also a minority opinion (see Ba’er Heitev 223:7) that one makes the beracha only if he was surprised to find out that he was left an estate. Not always is it clear that the inheritance, especially after paying parents’ debts (see Chashukei Chemed, Ketubot 90b) bring enough happiness/benefit for a beracha. Above all, the minhag seems to be not to make the beracha. Although the minhag’s origins are not fully clear, we have seen enough reasons to consider it reasonable. While it is legitimate to follow the P’ninei Halacha’s recommendation or make the beracha earlier, one need not feel compelled to make the beracha. If he decides to make it, it is unjustified to do so on every installment. The first or largest expected installment would be the time.

There are prominent sources mentioning certain ingredients and procedures for making charoset, but before analyzing their role, let us start with background.

There are two opinions in the mishna (Pesachim 114a) if charoset is a mitzva. If it is not, we have it due to fear of kappa. Rashi says that kappa is a venom-like substance in sharp vegetables, which is neutralized by the special taste or, perhaps, smell of charoset (see Pesachim 115b). Rabbeinu Chananel says that it is a potentially dangerous worm that grows on the maror/chazeret; charoset kills it.

If charoset is a mitzva, it is a remembrance, either of the tapuach tree (unclear if it is an apple or what type of apple) or of mortar, each having historical significance regarding Bnei Yisrael’s stay in Egypt (ibid. 116a). Both may be true, as Abaye says that charoset should have both kiyuha (sharpness? acidity?) because of the tapuach and thickness because of the mortar. The Yerushalmi (Pesachim 10:3) says that some require it to be thick to remember mortar and some require it to be loose to remember blood. The Tur (Orach Chayim 473) cites Rabbeinu Yechiel as saying that we actually fulfill both, by starting it thick and then adding vinegar to make it looser.

Adding vinegar addresses another two issues. The gemara (ibid. 115a) says that dipping the maror into charoset is an example of dipping into a liquid, which makes netilat yadayim necessary. It also provides sharpness to address the kappa. The Rama (OC 473:5) adds red wine as a possibility to provide the above (it also has the color of blood).

Regarding base ingredients, Tosafot (Pesachim 116a, accepted by the Rama ibid.) instructs to include the fruit used in Shir Hashirim to refer to Bnei Yisrael – tapuach, figs, nuts, pomegranates, and almonds. The Rambam (Chametz U’matza 7:11) mentions dates, figs, and raisins. In addition to the spiritual elements that Tosafot mentions, these fruits seem to combine nicely to give a reasonable color and texture for our purposes.

The gemara (ibid.) says to put in tavlin (spices) to make the charoset like mortar; the Rama (ibid.) mentions cinnamon and ginger as examples. Many people today use at least one, but likely not in the way intended. Classical poskim (see Beit Yosef, OC 473 and Mishna Berura 473:50) discuss putting in long strands of tavlin, to resemble the straw used in making bricks (see Shemot 5:16), not cinnamon in powder form.

Are the instructions halacha? There are opinions among Acharonim on whether they are or just good ideas (see discussion in Mikraei Kodesh (Harari), Pesach p. 451-2). In any case, it is quite clear that there is not a need to use all of the mentioned ingredients, and it does not seem problematic to include something that is not on any list as one of several ingredients. Thus, there seems to be little difficulty to choose from among the things mentioned to use as the basis. What does seem relatively important is to add red wine (if one chooses vinegar, some say it must be grape vinegar). There are then different minhagim as to whether to put it in the liquid at the end of making the charoset or at the Seder, soon before using it. This brings us to our final point.

Acharonim raise several peculiarities of this fast, some of which may be related to the various opinions as to why the firstborns are supposed to fast

The fast’s source is in Massechet Sofrim (21:3), which is significant but later and of lesser stature than the Talmud. It is cited by many (including Tur, OC 470, Tosafot, Pesachim 108a) but not all Rishonim, but it is brought as a fact by the Shulchan Aruch, without mentioning a way (e.g., a siyum) out of it.

The Tur is among sources that indicate that it is a commemoration of the miracle of the saving of the firstborn from makat bechorot. This is the explicit rationale behind two mitzvot – redeeming human firstborns and sacrificing animal firstborns (Shemot 13:15). But questions are raised on this approach. We usually celebrate positive miracles; we do not fast over them! The miracle impacted the descendants of the firstborns in Egypt, not contemporary firstborns! Isn’t Seder night the right time to commemorate the miracle (that’s when it occurred)? The Birkei Yosef (470:7) says that it should have been that night but was moved up because we cannot fast on Yom Tov.

Others (see Mikraei Kodesh (Frank) Pesach II:22) say that we are reliving a fast that occurred in Egypt on the 14^th. When the Jews realized that all firstborns were in danger, firstborns fasted lest they be killed along with the Egyptian firstborn. Although the decree was for the death of Egyptians, not Jews, they did not rule out the possibility that sins would connect with the danger and some Jews might die. Reliving this act of protection would also explain the minhag of some that parents fast for their firstborn who are too young to do so (see Shulchan Aruch and Rama, Orach Chayim 470:1-2), as parents are concerned for their children. Otherwise it is difficult, as if one’s child is too young to do a mitzva, where do we find that a parent does it in his place? In this way, it is also parallel to Ta’anit Esther, which commemorates Esther’s fast (see Rambam, Ta’anit 5:5).

There is a third approach, which is found, with variations, which we will inexactly combine (Halichot Shlomo, Pesach 8:(1) in the name of Rav Auerbach; Mo’adim U’zmanim VII:169). The firstborn were elevated to a special level when being saved in Egypt, and this should have enabled them to lead the service in the Mikdash for all generations. However, Bnei Yisrael’s sin of the Golden Calf, excluding the Tribe of Levi, caused the distinction to be taken away from them. On Erev Pesach, which is a prominent type of Mikdash service, the firstborn take note of their descent into a lower level, and seek atonement by means of fasting.

Some minhagim and varied opinions work out differently according to the different explanations; we will only hint at some directions, without much detail. There is some question as to which Egyptian firstborns died, and thus which Jews were saved. This question can impact on the minhagim of whether firstborn girls fast or not (see Shulchan Aruch and Rama, OC 470:1). Firstborn girls were not slated for service in the Mikdash.

The Torah commands standing for people who deserve our respect, such as elders and scholars (Vayikra 19:32). The gemara (Kiddushin 33b) reasons: if one stands for Torah scholars, certainly one stands for the Torah itself. There is some question as to whether the obligation to stand for a sefer Torah is a Torah or a Rabbinic law (see Kima V’hidur 13:2). Either way, it is a mitzvat aseh to stand for a Torah when it is being moved (Shulchan Aruch, Yoreh Deah 282:2).

At what point does one become obligated in a mitzva, such that before that point, the obligation does not apply? The mitzva to stand takes effect when there is a certain proximity between the person showing the honor and the subject of his honor. For a regular talmid chacham, it is when he enters one’s four amot (Kiddushin 33a). For a sefer Torah it is when it is within sight (Shulchan Aruch ibid.) in one’s domain (Rama, YD 242:18). Before that point, standing is not even desired, according to several poskim, because it is then too early to count as a mitzva and when he/it gets closer, one cannot stand up because he is already standing (Shach, YD 224:6; Ben Ish Chai II, Ki Teitzei 13).

Another element is needed to activate the mitzva. There must be awareness that the sefer Torah is being moved in the room – the Rambam (Talmud Torah 6:6) writes: “one who sees …” The gemara (Kiddushin 33a) says that if one closed his eyes after a talmid chacham came close enough as an excuse not to stand, he is a rasha. If he closed his eyes before he gets close enough and becomes obligated to stand, he is not as bad, but the gemara says he still violates the Torah’s words of “takum v’yareita” by intentionally trying to extricate himself from the mitzva.

Now to your specific question – whether one should inform someone who does not know that the sefer Torah is in the room. One reason to do so is if one commits an aveira if the sefer Torah is in his vicinity and he is sitting. Some positive mitzvot provide an opportunity while others include a need to extricate oneself from a spiritually bad situation. Is it only an opportunity to stand or is being seated a bad situation that must be avoided? If the former is true, then there is no requirement to tell the person because without knowledge (or quasi-knowledge if he closed his eyes because the object was approaching) because there is not yet a mitzva. If there is a negative element, then while there is no personal culpability, one who knows should remove another from a bad situation (see Shulchan Aruch, YD 303:1).

Sometimes, a mitzva is such that one should have done the mitzva before the cut-off point; others times, one does the mitzva when (i.e., right after) the cut-off point comes. Sometimes, there is a machloket what the fundamental mitzva is (e.g., is the mitzva to burn chametz before midday of Erev Pesach or after – see Minchat Chinuch #9? Must one put on tzitzit before he puts the garment on (Rambam, Tzitzit 3:10) or after he puts it on (Tosafot, Yevamot 90b). The sources that it is better to stand up after the object enters one’s domain imply that it is not forbidden for the object to be in one’s proximity while he is sitting; we want to positively stand up even if it takes a moment to do so. If so, it is presumably unnecessary to inform one for whom the mitzva has not yet begun due to lack of awareness.

On the other hand, the average shul-goer is presumably happy to have the opportunity to perform the mitzva of standing, so why not tell him (Rabbeinu Mano’ach, cited by the Beit Yosef, YD 282, explains that the sefer Torah’s bells are designed to expand the obligation to stand). If, though, someone is better not disturbed, e.g., he is learning in the beit midrash, it is not worthwhile to tell him (Halichot Shlomo 12:(37)); if he realizes, he will get up.

Let me strengthen this insightful question. We find sources that positive minhagim are more identifiable than minhagim of refraining. The gemara (Pesachim 55a) deals with the possibility that refraining, for religious purposes, from something in front of others who believe it is permitted is yohara (haughtiness). The gemara says, though, that when one whose minhag is to not work on Tisha B’Av refrains from work in front of those who do, no one takes offense because onlookers will say that he is idle because he happens to not have work to do. Similarly, when one, for example, refrains from eating a certain food due to kashrut concerns, the “non-act” of not eating is not like a clear, noticeable, countable religious practice. Can one count three occurrences of not doing something?

This being argued, there is a concept of those who are bound to a practice of refraining from action and that this is an extension of the concept of neder (Nedarim 15a). This is likely a Rabbinic obligation (Tosafot ad loc.), although significant opinions hold it is a Torah law (see presentation in Kol Nidrei 72:5).

Your reference to three times is arguably a popularly held mistake. The classical Rishonim and the Shulchan Aruch (Yoreh Deah 214:1) do not mention a need for three times to be binding. On the other hand, besides mention of the text of Hatarat Nedarim, many Acharonim mention three times. The standard way of dealing with the apparent contradiction is as follows. If one intends the practice to be binding, it becomes so even after one time. If he did not have clear intention as to whether or not it be permanent, then three occurrences make it the norm, and therefore automatically binding (Shulchan Aruch Harav, Orach Chayim 468:17; Kaf Hachayim, OC 417:25).

Now to get to your question – how does doing an inaction (whether three times or once) become binding? I did not find this question discussed where one might expect it. We must determine what this dearth of sources means here (see Living the Halachic Process, V, G-1). Apparently, refraining from something for religious reasons does not need special requirements to be halachically significant. Let us consider that a neder is a matter between a person and Hashem and that since Halacha extends it to occurring without verbalization, it does not need to be clear to others what he was thinking. So if one was in a situation that he would have done X and he did not do so for a religious reason, this is equivalent in our context to actually performing a mitzva.

This same concept is behind the fulfillment of negative commandments in general. Every moment one does not sin is not a mitzva of refraining for which he receives reward but is neutral. However, if he is tempted to do an aveira (e.g., eat non-kosher food, drive somewhere on Shabbat.) but is refraining because of the mitzva to do so, he does receive reward (Kiddushin 39b). In such a case, refraining, beyond the letter of the law, from something one wants, creates a neder.

What is a little trickier is the following. Sometimes a person refrains from something, not out of a full decision, but because of “why not?” Let’s say that when he goes to a store and there is chalav Yisrael milk and regular milk, he purposely picks the chalav Yisrael. If he thought that he will henceforth only have chalav Yisrael, this should be binding.  But it could also be that if he were in a place that the only milk is regular, he would buy that as well. Is that considered refraining from something? While it is hard to know where to draw the line, there might be a difference between three positive acts and three acts of refraining that are not necessarily indicative of his future plans. 

According to the normal rules, we would think that this is not an optimal practice. Presumably, every moment and element of festivity of Purim adds to the mitzva (Rama, Orach Chayim 695). We do not find a halacha of tosefet (adding on to the day before and/or after Purim). Therefore, it all should be during the day. 

However, the Terumat Hadeshen (I:110) cites an early source and a broad minhag to start the meal late in the day and go into the night. His requirement that a (significant) part of the meal is during the day makes the matter more one of preferences than of basic fulfillment of the mitzva. After all, if one has a meal in honor of Purim, then even if the part that was eaten during the day was not elaborate, he still fulfills the mitzva, especially if part of the festive food is eaten during the day.

The way the Terumat Hadeshen paints the minhag, it developed based on trading off the preferences of one mitzva vs. another. The morning and even part of the afternoon is full with Kri’at Hamegilla, mishloach manot, and matanot la’evyonim. The latter two are open-ended mitzvot which are strongly recommended to be done on a large scale (Shulchan Aruch, OC 695:4 regarding mishloach manot; Rambam, Megilla 2:17 and Mishna Berura 294:3 regarding matanot la’evyonim). One should also daven Mincha before the big and sometimes incapacitating meal (see Shulchan Aruch, OC 232:2). Thus, allowing the meal to start later enables one not to rush the other mitzvot. One may also add that in order to enable the inclusion of others (which is desirable, family or not), including those coming from a distance, one must give time for them to finish their mitzvot and make it.

The Terumat Hadeshen describes the minhag as having the main part of the meal in the evening, although, he also writes that he personally had his in the morning. The way the Rama (OC 695:2) sets out the minhag in the manner he considers acceptable, people should not start the meal too close to the end of the day; the main part of the meal should be during the day. It seems logical that he does not care how long one continues after nightfall but whether there was enough time to have the majority of what would have been a proper meal (including merriment and songs and words of inspiration).

Is the festivity into the next night worth anything religiously? There are three ways to explain how it can be. The Terumat Hadeshen seems to say that the two time periods of the meal form one unit, and thus the day-rooted meal was lavish, which is what is important. The Meshech Chochma (see Mikraei Kodesh (Frank) 53)) says that in the time of the Purim story, the celebrations started in the day and continued into the night (as do the laws of korbanot – see Y’mei Hapurim, p. 157) so that the night is an appropriate time for festivities. The Levush (OC 695:2) says that both days of Purim (14 & 15 Adar) are days of festivity, so that the night is appropriate as the second day of Purim. According to the Levush, this minhag should logically not be as desirable in Yerushalayim, where the evening after the seuda is the 16^th. That being said, the minhag, at least for Ashkenazim (see Mikraei Kodesh (Harari), 13:5), is to allow extending the meal into the night – even in Yerushalayim.  

In theory, there could be a practical consequence of this minhag. The Rosh (see Tur, OC 695) says that Al Hanisim can be said only if Birkat HaMazon is recited during the day. He says the same thing regarding R’tzei at seuda shlishit (Shut 22:6). On the other hand, the Beit Yosef cites a Hagahot Maimoniot that Al Hanism can be said at night if the meal started during the day, as we do in practice regarding seuda shlishit (Shulchan Aruch, OC 188:2). While the Shulchan Aruch elsewhere (OC 695:3) cites two opinions on the matter, his conclusion and that of the Rama is that Al Hanisim is to be recited in this case.

There is a machloket Tannaim (Berachot 26a) whether the last time to daven Shacharit is chatzot (astronomical midday) or the end of four “proportional hours,” some two hours before. The earlier opinion is accepted (ibid. 27a). Only if one failed to daven by that time may he b’di’eved daven until chatzot (Shulchan Aruch, Orach Chayim 89:1). Thus the tefilla was not bizmana (at its time).

Tefilla bizmana is important enough to trump several tefilla preferences. The Shulchan Aruch (OC 90:10) discusses the prohibition to recite Shemoneh Esrei in shul before the tzibbur does. However, if the tzibbur will not be getting up to Shemoneh Esrei bizmana, one should go ahead of them. (If he can, he should do so outside shul– Mishna Berura ad loc. 36.) This ruling assumes not only that davening bizmana overcomes the problem of davening before the tzibbur, but that davening without a minyan at the right time is preferable to davening with a minyan not bizmana. There is an opinion (Leket Hakemach (Katz) 89:11) that the Shulchan Aruch refers to a case where they are before chatzot, after which one cannot daven at all, but that it is better to daven with a minyan after the fourth hour than alone bizmana. However, that is a difficult reading, and the accepted ruling is that tefilla before the end of the fourth hour is preferable to a minyan (see Mishna Berura 46:32; Ishei Yisrael 13:10; Tefilla K’hilchata 3:(80)).

How important is it to follow this preference? Does waiting cause special problems? If one did not recite Kri’at Shema bizmana (by the end of the third hour), he recites it with its berachot during the next hour (Shulchan Aruch, OC 58:6). There is a machloket whether this applies after the fourth hour. The Rambam (Kri’at Shema 1:13) says that the berachot can be recited with Kri’at Shema all day; the Rosh (Berachot 1:10) allows the berachot only during the fourth hour, when the full effect of tefilla is present. The Shulchan Aruch (ibid.) rules like the Rosh. On the other hand, the Biur Halacha cites some Acharonim who accept the Rambam’s opinion, particularly if the delay was due to extenuating circumstances (see Living the Halachic Process, I:A-9).

One might argue that on Shabbat the matter is much more problematic. The gemara’s (Berachot 26a) discussion of davening after zmana and davening tashlumin (a make-up for a missed tefilla during the next tefilla period) can be read to equate the two. Tashlumin is not done if one purposely, without an excuse, missed the tefilla (Shulchan Aruch, OC 108:7), and if one wants to make it up, the make-up Shemoneh Esrei must be done as a nedava (voluntary tefilla). Combining the two, some say that one who purposely waited to do Shacharit until after the fourth hour should intend that if a later Shacharit it is not called for, it should be a nedava (Mishna Berura 89:6). Since tefillot nedava cannot be done on Shabbat (Shulchan Aruch, OC 107:1), one could argue that it is forbidden to purposely daven Shacharit on Shabbat after the fourth hour. However, this is apparently not true. The main opinion allows davening until chatzot even when the conditions for tashlumin are missing – the idea of intending for a nedava if necessary was just a stringency when possible (Ishei Yisrael 13:(15)). Secondly, in this case, you and others davening at that time believed it was okay, and one who misses a tefilla by mistake can do tashlumin (Shulchan Aruch, OC 108:1).

[In discussing the matter weeks ago (Bo 5779), we neglected to discuss (as pointed out by a reader) a topic that we will develop below. We also note that a discussion of the general use of a crock pot on Shabbat can be found on Eretz Hemdah’s website in Hemdat Yamim archives – Teruma 5772 or by searching in the Ask the Rabbi section with the keyword: crock pot. We already saw that the permissibility of chazara from a hot plate depends on the machloket on a hot plate’s status and that there are ways to ensure that hatmana will not be a problem.]  

Although we made the whole discussion contingent on all the food involved being fully cooked before making the move, we must see if there is a problem that the kugel was baked and now is going into a pot in which food is being cooked. There is a broad rule that ein bishul achar bishul (see 145b) – once a food has been (fully) cooked, further cooking is permitted, but this rule may have exceptions. There is a machloket whether this is true if one wants to reheat a liquid that has cooled down (see Shulchan Aruch and Rama, Orach Chayim 318:4). Another machloket is whether a baked food can be put into a hot liquid, in which it can become cooked (ibid. 5). Why should added cooking be forbidden if the food is already halachically cooked (note that the melacha listed among the 39 melachot is ofeh (baking) –Shabbat 73a)?

The gemara (Berachot 38b) cites a machloket Tannaim whether matza that was subsequently cooked can be used for the mitzva of matza and surmises that those who say that cooking changes the matza’s status would also say that it changes its beracha status. However, the gemara concludes that matza is special in that it requires “the taste of matza.” This implies that later cooking does not change a baked good’s halachic statuses. Similarly, a gemara (Pesachim 41a) says that a Korban Pesach that was properly roasted could be ruined by a subsequent cooking, but concludes again that this is an exception due to the nature of Korban Pesach. Nevertheless, the Yerei’im (274) posits that the change caused by cooking a baked food is prohibited on Shabbat, probably even on the level of Torah law. The Shulchan Aruch and Rama (OC 318:5) cite both the Yerei’im and those who argue with him. Their conclusions are not fully clear, but the practice, at least of Ashkenazim, is to be stringent.

Many Acharonim are troubled how the Shulchan Aruch (ibid. 15) allows placing cooked food opposite a fireplace, since this is, in effect, an act of roasting (see Biur Halacha ad loc.).  The Chazon Ish (OC 37:14) answers that if the fire just heats and slightly dries up cooked food but does not give the taste of roasting, it is permissible. The Shemirat Shabbat K’hilchata (1:60) forbids putting cooked (as opposed to baked/roasted) foods on the top of a pot on the flame, even though he cites several who are lenient. The Orchot Shabbat accepts the lenient position, and this is the prevalent minhag.

Thus, putting a food that was cooked in a roasting/baking situation but without impactful change, and probably vice versa, are permitted. What happens to potato kugel in a crock pot with cholent? The answer may depend on various factors: how liquidy the cholent is; whether there are big holes in the aluminum foil; where the kugel is situated; the level of interaction, etc. In most cases, the taste changes due to the interaction, but for our purposes the texture change is the real issue. It is hard to know exactly where to draw the line, and again the answer can change from kitchen to kitchen.

When considering all the questions that have arisen, many of which depend on the specifics of each case, it is hard to encourage putting the kugel in the crock pot on Shabbat, even while it is not correct to outright forbid it. Therefore, we recommend that if one wants to have potato kugel sit in the cholent pot overnight, put it in before Shabbat.