| Responsa Chatam Sofer | |
| שו"ת חתם סופר | |
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| Responsa Chatam Sofer | |
| Orach Chayim | |
| Teshuva 1 | |
| 1. Peace and deliverence teacher, may you come and join, to my distinguished and fiery student, whose Torah is wonderous and distinct in the Garden of Holy Ones, his master Yosef Zalman, may his candle enlighten. | |
| 2 That which you said from the words of the Ramban that in the Ran in Megilla that writes a son can make a blessing on behalf of their father. That is an adult son. And my student writes that this against the Talmud, Berachos 20b, that we say etc. <i><small>[Come and hear from what was taught in a baraita: Actually they said that a son may recite a blessing on behalf of his father...From here we may infer: Granted, if you say that their obligation is by Torah law, one whose obligation is by Torah law can come and fulfill the obligation of others who are obligated by Torah law. However, if you say that their obligation is by rabbinic law, can one who is obligated by rabbinic law, come and fulfill the obligation of one whose obligation is by Torah law?]</small>The Gemara challenges this proof: And according to your reasoning, is a minor obligated by Torah law to perform mitzvot? <small>[Everyone agrees that a minor is exempt by Torah law, yet here the baraita said that he may recite a blessing on behalf of his father.]</small></i> It is beautiful according to the version before us, but it was not to the Early Authorities that version in the Talmud there. Rather it was said unspeficially that the case the baraisa was dealing with was when eating a Rabbinical measurement. So it appears within the words of the Ran in Sukkah (38a) in the Gemara that a son may recite a blessing on behalf of his father. See there. | |
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| Chatam Sofer discusses Rabbi Yehudah HaNasi’s wish to eliminate Tishah b’Av when it occurs on Shabbat. (Megilah 5b)] | |
| ... One should ask: When Tishah b’Av occurs on Shabbat, the 17th of Tammuz is also Shabbat (unless they set the calendar by seeing the moon, and they added a day to Tammuz). If so, then why did Rabbi Yehudah HaNasi not suggest regarding this fast, that once it is pushed off [from Shabbat], it should not be observed! And do not say that this is correct, and the Sages agreed with him [to eliminate the fast of] the 17th of Tammuz; that is not so, for we do not rule thus! Rather, one must say that he did not think we should say that once the 17th of Tammuz is pushed off, it should not be observed. The 18th of Tammuz is also part of the period of tragedy, as opposed to the 9th of Av, where once the day has passed, there is no mourning according to the view that one mourns from Rosh Chodesh until after the fast. (Taanit 29b) ... | |
| And this week I developed a new explanation for Eichah Rabbah 4:24, which states that Rabbi Yehudah HaNasi learned Eichah on Shabbat which was the 9th of Av, and when he [accidentally] banged his finger, he said of himself, “There are many pains for the wicked. (Tehillim 32:10)” Rabbi Chiya responded, “The anointed of G-d is caught [only] due to ourcorruption.” (cf. Eichah 4:20) ... It appears to me that within our view that we push the fast to the 10th of Av, Shabbat is not Tishah b’Av at all, and one may learn with others, as Magen Avraham wrote; the day only has the status of the eve of Tishah b’Av. But if we held as Rabbi Yehudah HaNasi does, that once Tishah b’Av is pushed off, it should not be observed and it cannot be made up, then the observance of Tishah b’Av actually remains in place on the proper day, on Shabbat, and it is only that the mitzvah of Shabbat pleasure pushes off [fasting for] Tishah b’Av –but that which is private, learning with others and the like, are prohibited as they would be for any mourner on Shabbat. So Rabbi Yehudah HaNasi violated his own position ... And therefore he blamed banging his finger on this, and said of himself. “There are many pains,” and Rabbi Chiya responded, “We caused this, for we did not give in to you, and you did not wish to trespass the words of your colleagues.” ... | |
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| Indeed, I have seen what is written in Noda BiYehuda, Second Edition, §30 regarding a parasol, namely: that he suspects it of obligating a sin-offering [for one who opens it on Shabbat] according to the opinion of Rif, who maintains, on Shabbat 138, that if there is a [square] handbreadth in the roof of a cloak, or within three handbreadths of its roof, it requires a sin-offering; if so, the same applies in the present case, where there is a handbreadth within three handbreadths of the roof, which descends diagonally to offer protection and shade to one who carries it. This constitutes the inclines of an ohel (lit. “tent,” referring to any sheltering structure), which are considered walls. It is thus an ohel with walls, and one who constructs it on Shabbat is liable for a sin-offering. 1In truth, here and now, the masses carry them on Shabbat, though they are opened by non-Jews. But so what? Instructing a non-Jew [to perform an act forbidden on Shabbat] is rabbinically prohibited (ibid. 150a), and even if opening a parasol would only be prohibited rabbinically, instructing a gentile would nevertheless be a rabbinic prohibition on a rabbinic prohibition (shvut di-shvut) where it is not for the sake of a mitzva. So who permitted this for them? | |
| After close scrutiny, I say that carrying a parasol on Shabbat is not merely a teaching for the pious, and one who guards his soul will distance himself from it. Nevertheless, in my humble opinion, it is not what the eminent sage thought, for a melakha that does not correspond to the Tabernacle service has no liability on Shabbat. This is the formulation of the Yerushalmi [Shabbat 52b] at the end of chapter “Klal Gadol”: “What is the binyan (construction, one of the melakhot) that was in the Tabernacle? They would place beams on their bases. But wasn’t that temporary (lit. “for an hour”)? R. Yose says: Since they would travel and camp in accordance with God’s word, it is as though they were camped forever. R. Yose b. Bon said: Since the Almighty promised to take them into Eretz Yisrael, it is as though it was temporary—thus he says that temporary binyan constitutes binyan; thus he says that even irregular binyan [constitutes binyan]; thus he says that even if it is placed atop something else [it is still binyan]; thus he says that even binyan atop vessels (constitutes binyan). [No]—binyan atop bases is like [building on] the ground.” Maimonides likewise rules in Laws of Shabbat 10:12 that binyan atop vessels does not constitute binyan, and Magid Mishneh explains that it is dissimilar from the Tabernacle since the bases were akin to the ground. Magen Avraham cites this at the end of [Shulhan Arukh, Orah Hayim] §315. This Yerushalmi is cited by Rashba in his novellae on Shabbat, chapter “Haboneh” [102b, the end of s.v. “hai”]. | |
| From this [passage in the] Yerushalmi, I derive three reasons why a parasol has not a trace of a Torah prohibition in any way. | |
| First, it is temporary binyan. The meaning of temporary binyan is that it is made, from the outset, to be built and demolished and rebuilt and re-demolished at all times, just as the Tabernacle was built. There is a disagreement among Amoraim: according to the one who maintains that since they camped at God’s word the binyan was considered permanent, we may thus return to the principle that temporary binyan is not binyan. Since we find that the our Talmud [Bavli] states anonymously in the chapter “Ba-meh Madlikin” (Shabbat 31b), in the discussion of one who makes charcoal, in a passage about one who demolishes in order to build at the same location, that since Scripture states that they camped according to God’s word, it is considered an established place, and this is not rejected, we may derive from here that this is the ruling. This is further implicit in Tosafot on Shabbat 94a, s.v. “R. Shimon poter.” Since the halakha is that a temporary binyan does not constitute a binyan, and a parasol, of course, is constructed temporarily. See also Mo’ed Katan 9a, which offers a contrived answer as to why they were concerned [about the fact that they had participated in the construction of the Temple on Yom Kippur] and does not answer that one might distinguish between the construction of the Temple, which does not even supersede the holidays, whereas the “Days of Training” (“yemei ha-mili’im”) [for the construction of the Tabernacle] even supersedes Shabbat, for they erected and dismantled it every day. Perforce, then, building and dismantling it temporarily, every day, was a temporary construction, like a parasol, and is dissimilar to the construction of the Tabernacle at a place of encampment—“by God’s word they encamped.” | |
| Secondly, we find nowhere in the Temple that there was an ohel that moved from place to place by means of someone carrying it himself. Thus, Noda BiYehuda’s lengthy discussion of a moving ohel is irrelevant to the laws of Shabbat, for it pertains to the laws of ritual impurity. On Shabbat, there is no melakha except for that which was done in the Tabernacle. See Tosafot on Shabbat 5b s.v. “egoz al gabei mayim,” [which states that] even though when it comes to acquisition, we maintain that a boat is considered to be at rest and moved by the water, with regard to Shabbat, [placing something there] is not considered putting it down (“hanaha”) since they did not hide objects in this manner in the Tabernacle. The present case is similar. There is a clear proof of this from Shabbat 43b: “If a corpse is lying in the sun, two people come and sit beside it. They feel hot underneath, so each one brings a couch and sits upon it. They feel hot above, so they bring a mat and spread it above them. Each one then turns up his couch, slips out from under it, and leaves, and the wall is thus consequently erected on its own.” At first glance, this requires explanation: they are making a real ohel with themselves as the walls and the ohel spread over their heads. They themselves form the sides. Moreover, they are not moving, but are fixed to their place. Thus, we do not find an ohel like this in the Tabernacle, in which a man holds a shelter over himself, and certainly if he is walking around with this shelter, and we may reason a fortiori from an ohel built above vessels to one carried by a person. | |
| Thirdly, an ohel is not forbidden at the Torah level unless the walls reach the ground, as was the case in the Tabernacle, and as both Rashi and Rif stated precisely about a folded cloak, and as Tosafot on Shabbat 138a, s.v. “kisei” state. Now, Noda BiYehuda states that a wall of a handbreadth is sufficient for the purposes of Shabbat, and I say that is correct—provided that it reaches the ground, even if its height is a mere handbreadth. However, a wall suspended in the air, and to which additions are not generally made, and which cannot be pulled down to the ground, is certainly not an ohel on the Torah level. The agreement of Peri Megadim is implied in Eshel Avraham 315:7. | |
| Since this prohibition is not at the Torah level, there is consequently no rabbinic prohibition either. After all, a folded cloak that is opened by a string may be opened even ab initio. Here too, the loops and hooks are like strings, as Noda BiYehuda states himself. Here it is even better, because from the outset this is its intended usage; it is like a wedding canopy, about which Rif and Maimonides (22:30) are lenient because that is their intended usage. Therefore, one it is plausible to say that it is permissible even on the rabbinic level. If so, at the very least they may be opened by a non-Jew, and there is no reason to make a big fuss about this. | |
| I have written my humble opinion, here in Pressburg, Monday, the Fast of Esther, 5573. | |
| The insignificant Moshe Sofer | |
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| ...And regarding the issue of the trustworthiness of doctors (insofar as considering their opinions when making halachic decisions), I've already written in another teshuvah (responsum) [see: Responsa Chatam Sofer, Yoreh De'ah 158] that we don't trust doctors regarding a ruling about a specific individual to say that "this body has a mole which discharges hairs" (see Niddah 22b) because doctors' opinions are only trusted with regard to a specific individual (as opposed to general theoretical knowledge or trends, when we do trust them) in cases of possible life-and-death situations when the doctors determine there is an uncertainty (i.e. possibility of death) and this pushes aside prohibitions from this place of doubt [since there is a low threshold needed to violate a prohibition when there is a possibly life-threatening scenario]. But for a doctor make a determination [that would override a serious prohibition, when to do so would require] complete certainty, [something which the doctors don't have in any particular case], we don't rely on them for that. But the Sages of Talmud are trusted believed when testifying to the general laws of nature, that there it a reality in the world where a woman has a mole that discharges red hairs (i.e. not red from menstrual blood), and since this is a reality in the world, the Sages said that whenever any woman has a mole that discharges red hairs - those hairs should be immersed in water [to ascertain whether or not it is menstrual blood], etc. See Niddah 22b and you will understand. And if it wasn't for the testimony of the doctors [who said it was red because of the mole, rather than menstrual blood], we would not rely on this test [i.e. immersing it in water] since we would not know this was a possible reality for women and it would be considered dry blood, which causes impurity. But nowadays, we rely on what is most common according to the doctors' testimony, but [still] with regard to a specific person's situation, we only rely on them to the extent that it establishes a doubtful life-and-death situation... | |
| Even HaEzer | |
| Choshen Mishpat | |
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| Peace and good wishes to my dear friend, our honorable teacher, the brilliant and wondrous Rabbi Shlomo, Head of the Court of the holy congregation of Halishtaba, God should protect them. | |
| I received the seal of his holy hand about [a question] regarding the shochet (ritual slaughterer) Michael Raab, the shochet of a certain village: He met a certain honorable man, the honorable Rabbi Michael Pashkez, from your esteemed congregation and he mocked him, [telling him] that the shochet's wife gave birth to a son, and that he would honor him [to perform] the commandment of his son's circumcision - the mocker knowing that the honorable Rabbi Michael was very devoted to this commandment. So last Sunday, Rabbi Michael traveled four hours from his community to that village [to do the circumcision]. And behold, he lied to him - she had given birth to a girl. So he was a laughing stock in front of everyone [there]. And 'his soul is wrapped up in this question': And likewise does the luminary head of the court ask whether the shochet should be removed from his profession because of the deed mentioned above or what [else] to do to him? | |
| Behold here we have [issues related] to monetary laws and laws of exploitation. And the latter is primary, since he in any case verbally exploited his fellow. And our Sages, may their memory be blessed, said in Bava Metzia 58b regarding the parameters of the negative commandment, “Do not exploit,” “If donkey drivers are asking to purchase grain from someone, and he has none, he may not say to them: Go to so-and-so, as he sells grain, if he knows about him that he never sold grain at all.” And the Shulchan Aruch, Choshen Mishpat 228:4 rules [like this]. And the Sages, may their memory be blessed, said with precision that one who said [this] to donkey drivers who regardless had come to a city to purchase grain, so no loss was caused to them, except that they requested that he inform them who sells [grain] and he mocked them with his words - violates the negative commandment of “Do not exploit.” And they judged accordingly in the beginning of Pesachim 3b about the Aramean who came up [and tricked the Jews] to eat from the Pesach sacrifices, etc. And Rabbi Yehuda ben Beteirah [who thwarted the Aramean’s trickery, by misleading him] knew that it was not considered mocking; otherwise he would have been in violation of “Do not exploit.” Here too, [even] had the rabbi, Rabbi Michael, lived in the village and the shochet mocked him to the point that he came to the synagogue to do the circumcision and found that there was no boy there to circumcise, he would have [still] violated this negative commandment. And our Sages were stringent about this over there, to the point that they likened it to worshiping idols (Bava Metzia 39a): “[There are] three [sins before whose transgressors] the curtain [between the world and the Divine Presence] is not locked (meaning, their sins reach the Divine Presence).” | |
| In monetary law [regarding] one who employs a worker to do work and it comes out that there was none; it is not about this that the Sages, may their memory be blessed, were talking about - one who is a mocker, a sinner and an oppressor - as 'we are not dealing with evildoers,' but rather when [the employer] did not survey his field (Choshen Mishpat 333:1 at the end). However in the case of [work that involves a] commandment - such as a teacher to teach one's child - it is explained in Choshen Mishpat 334:4, that [the employer] gives him his wages in full. [This is not like other workers who get the lower wage ascribed to a job that involves no actual work], because it is preferable to him [to do a commandment than to be involved with nothing]. And here too, it is preferable to him to do a circumcision and to receive the reward from heaven for his travels of walking two <i>parsa</i> than to sit idly. And if so, [the shochet] needs to pay him his wages in full. And his wage for the circumcision is ten gold coins, but I am not able to assess the wage for his travels. And the legal scholars debate about Shulchan Aruch 382(?), whether his payment should be a set fee or according to what is fit in the eyes of the judges. And it would seem to me that this amount should be the difference between the wage of one who actually did [the work] and one who thought to do it but was prevented and did not do it. And that is simple to me, but [then] the case of of Rabbi and the Sadducee at the end of the chapter [entitled] Kisui HaDam requires a little further study. | |
| However, in our times, we do not collect [these fees], as is explained there. Rather the matter returns to that which is written in Choshen Mishpat 1:5, and also there in 1:6, and because we do not have the authority from the government to expel him [from the congregation]. However, [we do have the authority] to excommunicate him from the synagogue, and to not circumcise his son. And [they may apply sanctions against him, according] to everything that appears correct to the court, as is explained in Yoreh Deah 334:6 in Remah, and in Shakh 19; and all the more so since he possesses the evil of [violating] the negative commandment of “Do not exploit.” It is obvious that they may remove him from his profession, until he satisfies the plaintiff - with all that is fitting, according to that which is mentioned above - and [they] accept his repentance regarding his brazenness and [his violation of] the negative commandment of exploitation. But until then, I am in agreement to remove him from his profession; [assuming] the court receives statements from both sides and ratifies them, and finds the shochet to be liable according to all that is mentioned above. I have written all of this 'in my haste.' Such are my words, honored sir. Pressburg, Erev Rosh Chodesh Nissan 5595 according to our count (Monday, March 30, 1835), Moshe Sofer the Small from Frankfurt am Main | |
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| (4) 2. If there is business is happening in his shop at all, he is a mechalel Shabbos v'Yom Tov, since, behold, he is like all people who are mechalel Shabbos by prohibitions that are written in the passuk, as the Ramban, (Parshas Emor, in the passuk of "Shabbason zichron truah," ibid.) who should be remembered for blessing, writes: It appears to me that this interpretation intends to state that we are commanded by law of the Torah to have rest on a Yom Tov day even from activities which are not in the category of m’lachah (“work”). Thus we are not to be engaged the whole day in wearisome tasks: measuring out crops of the field, weighing fruits and gifts, filling the barrels with wine and clearing away the vessels, and moving stones from house to house and from place to place [although none of these activities is “work” in the strict sense of the term]. Similarly, if it be a city encompassed by a wall and its gates are locked at night, [and it is therefore according to law of the Torah treated as one domain, and the prohibition against taking out aught from one domain to another is inapplicable there], they would be loading heaps on asses, as also wine, grapes, and figs and all manner of burdens they would bring on a festival; and the market place would be full for all business transactions, the shops standing open and the shopkeepers giving credit, the money-changers sitting before their tables with the golden coins before them, and the workers would rise early to go to their work and hire themselves out for such works [as described above] just as on weekdays, and so on! And since all these matters do not entail m’lachah, they would be permissible on a Yom Tov day and even on Shabbos itself! Therefore the Torah said that [Yom Tov should be a day of] shabbason (solemn rest), meaning that it should be a day of rest and ease, not a day of labor [and weariness]. And so is the lashon of the Rambam (Hilchos Shabbos, Chapter 21, ibid.). | |
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| [K]now, my son and student, that my whole life I have been troubled by the verse, “And you shall be clean in front of G-d and Israel,” and these two obligations we have to be clean from G-d and clean from Israel His nation are two paired riders on our backs. But it is much easier to fulfill the first obligation, meaning, [innocence] in the eyes of G-d, much, much more than to fulfill one’s obligation regarding people, for they think strange thoughts [suspicions of wrongdoing], and the weavers speak of them by moonlight. The punishment [for failure to be innocent in the eyes of humanity] is quite severe, to no end, more than one who does not fulfill his obligation to Heaven, G-d forbid. This emerges from the Talmud at the end of the chapter Yom HaKippurim (Yoma Chapter 8) regarding desecrating G-d’s Name, [which says] there is no atonement, “such as where a rabbi purchases meat but does not pay right away.” In our great iniquity, people commonly talk about how such a studious person did such and such. It is common in their mouths – even if it’s just a suspicion. And in this case, even if the studious person acted properly in the eyes of G-d as much as possible, but not carefully enough, such that some drunkards made a mistake about him, and wrote mocking songs about him, he has been caught in their trap. On this, all sufferers shall grieve, and the verse screams, “You have let men ride over us.” (Tehillim 66:12). | |
| And I have wondered many times if it is even possible that a person in the history of the world has fully fulfilled this verse. Perhaps this idea is included in what King Shlomo said, “There is no righteous person in the world who does only good and no wrong” (Kohelet 7:20) - which means to say that even if his deeds were all good [in the eyes of G-d], it is impossible to not sin in the second way, regarding fulfilling the obligation [to be innocent in the eyes of] people. |