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+{
+ "language": "en",
+ "title": "Contemporary Halakhic Problems, Vol V",
+ "versionSource": "https://www.nli.org.il/he/books/NNL_ALEPH001100271",
+ "versionTitle": "Contemporary halakhic problems, by J. David Bleich, 1977-2005",
+ "status": "locked",
+ "license": "",
+ "digitizedBySefaria": true,
+ "versionTitleInHebrew": "בעיות הלכתיות עכשוויות, רבי יהודה דוד בלייך, 1977-2005",
+ "actualLanguage": "en",
+ "languageFamilyName": "english",
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+ "isSource": true,
+ "isPrimary": true,
+ "direction": "ltr",
+ "heTitle": "בעיות הלכתיות עכשוויות, כרך ה",
+ "categories": [
+ "Halakhah",
+ "Modern",
+ "Contemporary Halakhic Problems"
+ ],
+ "text": {
+ "Preface": [
+ "As was the case with the earlier volumes in this series, much of the material presented in this volume originally appeared in my \"Survey of Recent Halakhic Periodical Literature\" which is regularly featured in the columns of Tradition. Many of those items have been expanded and amplified for presentation in their present form. Portions of this work served as the subject matter of shi'urim and seminars on behalf of the students of the Rabbi Isaac Elchanan Theological Seminary and its Kollel le-Hora'ah as well as of the Benjamin N. Cardozo School of Law. The ongoing support of the Leonard and Bea Diener Institute of Jewish Law in facilitating my investigation of the application of Jewish law to contemporary legal and moral issues is gratefully acknowledged.",
+ "This work is not intended to serve as a practical halakhic guide and, indeed, no attempt has been made to present definitive psak halakhah. It is devoted to an analysis of Halakhah and halakhic reasoning rather than to definitive statements of halakhic determinations. As such, it is directed primarily to those who have at least some background in the study of rabbinic literature but lack the requisite skills or the leisure to assimilate and analyze the maze of responsa pertaining to the topics treated in this volume. It is intended as an invitation to the reader to join in the noblest of Jewish activities and the supremest of joys—the study of Torah.",
+ "I wish to express my thanks to my brother-in-law, Rabbi Mordecai Ochs, for his painstaking reading of the manuscript; to my son, Rabbi Dr. Moshe Bleich, for drawing my attention to sources that otherwise would have eluded me and for his many valuable insights; to my distinguished colleague, Professor Steven Resnikoff of De Paul University School of Law, for his erudite comments; to Rabbi Moshe Shapiro, Mr. Zalman Alpert and Mr. Zvi Erenyi of the Mendel Gottesman Library for their constant helpfulness; to Rabbi Menashe Shapiro for his research assistance; to Dr. Mark Licht for his efforts and expertise in clarifying matters pertaining to contact lenses; to my secretary at the Benjamin N. Cardozo School of Law, Miss Kaaron Saphir, for her patience and understanding; to my esteemed friend, Mr. Ernest Grunebaum, for noting typographical errors in earlier publications of this material; and especially to my students for their incisive and relentless questioning.",
+ "My gratitude also to the publisher of the first four volumes of this series, Mr. Bernard Scharfstein of Ktav Publishing House, for his warm friendship and generous cooperation. Those volumes remain available from Ktav Publishing House, Jersey City, New Jersey.",
+ "Particular thanks are due to the publisher of the present volume, Rabbi Moshe Dombey, for his unfailing indulgence and forbearance; to Mr. Yaakov Feldheim for introducing me to Rabbi Dombey and Targum Press; to Mrs. Chaya Baila Gavant for her painstaking efforts and good humor in shepherding this complex manuscript through the various stages of publication; and to the staff of Targum Press, especially Mrs. Diane Liff and Rabbi Yehuda Aharon Horovitz, for their meticulous efforts in enhancing the usefulness and attractiveness of this publication.",
+ "Above all, I am grateful to the Almighty for my cherished collaborators — the members of my family. Our prayer to the Almighty is that we continue to be numbered among the mashkimim le-divrei Torah and, to paraphrase the words of the hadran, ke-shem she-'azartanu le-sayyem sefer zeh, ken ta'azrenu le-hatḥil sefarim aḥerim u-le-sayyemam, lilmod u-le-lamed, lishmor ve-la'asot u-le-kayyem."
+ ],
+ "Introduction": [
+ "Lomdut and Psak: Theoretical Analysis and Halakhic Decision-Making",
+ "\"If you walk in My statutes and observe My commandments….\" When [Scripture] states, \"and observe My commandments\" [observance of] commandments is denoted. How then will I fulfill \"If you walk in My statutes?\" That you travail in [the study of] Torah.",
+ "SIFRA, LEVITICUS 26:3",
+ "As I have written elsewhere, to my mind, halakhic decision-making is primarily a science but it is also an art. Halakhah is a science in the sense that, in its pristine form, there is no room for subjectivity. That is not to say that there is no room for disagreement. Disagreement abounds in the natural sciences no less so than in Halakhah. But, in picking and choosing between contradictory and conflicting theses, the scientist acts on the basis of the canons of his discipline as understood by his quite fallible intellect, not on the basis of subjective predilections. The halakhic decisor faces the same constraints.",
+ "The decisor must seek neither the stringent ruling nor the lenient ruling but the view that is most authoritative. Moreover, there usually is a view that has been accepted in practice by the majority of poskim as the accepted standard. Thereupon, such a ruling becomes normative and deviation cannot be considered other than by virtue of compelling reasons. It was the view of many of the most renowned personages in the annals of halakhic scholarship that the rulings accepted as authoritative by the community of Israel were accepted as such by virtue of the operation of divine providence.",
+ "To be sure, not all minds think alike. As expressed long ago by the Sages, \"Just as their countenances are not similar one to another, so are their intellects not similar one to another\" (Palestinian Talmud, Berakhot 1:9). One person may regard an argument as compelling; another may not. One person may assign greater weight to a precedent or to the position of a given authority while another may assign lesser weight to the same precedent or position. Each may regard his assessment as crystal clear and regard the opposing view as ill-informed.",
+ "But halakhic decision-making is indeed an art as well as a science. Its kunst lies precisely in the ability to make judgment calls in evaluating citations, precedents, arguments, etc. It is not sufficient for a halakhic decisor to have a full command of relevant sources. If so, in theory at least, the decisor par excellence would be a computer rather than a person. The decisor must have a keen understanding of the underlying principles and postulates of Halakhah as well as of their applicable ramifications and must be capable of applying them with fidelity to matters placed before him. No amount of book learning can compensate for inadequacy in what may be termed the \"artistic\" component. The epithet \"a donkey carrying books\" is the derisive reference employed in rabbinic literature to describe such a person.",
+ "This talent is partially innate and partially acquired. No one springs from the womb as an accomplished musician. Training and practice are necessary prerequisites. Some teachers are certainly better pedagogues than others; some are certainly more proficient than others in transmitting subtlety in analysis, novelty in interpretation and sophistication in execution. But no amount of instruction and practice will make a musician of one lacking in musical talent. Any teacher of high school math will certify that a student who experiences little difficulty in solving problems presented in mathematical form but who scores significantly lower in analyzing verbal problems is the rule rather than the exception. Law school examinations typically take the form of hypotheticals and fact patterns designed to test, not simply knowledge of the law, but the ability to identify multifaceted issues as well as agility in applying legal theories to novel situations, Quite apart from breadth of knowledge, it is recognition of applicable categories and principles as well as depth of analysis with regard to substantive matters that distinguish the consummate halakhic scholar from the neophyte. When confronting conflicting positions and precedents, it is nuanced sophistication in applying canons of decision-making that is the hallmark of a proficient decisor.",
+ "In order to understand the role of lomdut it is necessary to focus attention upon the process by means of which definitive rulings are derived from fundamental principles. Only by means of the halakhic dialectic is it possible to appreciate the halakhic process as it is employed le-hasik shematteta aliba de-hilkheta, in reaching definitive conclusions on the basis of pertinent sources.",
+ "There are really two distinct forms of psak halakhah. The first, which at least in our day is by far the most prevalent, involves a decision-maker who either regards himself as a talmid she-lo higi'a le-hora'ah, who is not entitled to an independent authoritative opinion of his own, or a person who for whatever reason has no strongly held opinion with regard to the question before him. Such an individual must perforce pick and choose from positions enunciated by earlier decisors. A person in such a position must employ various kellalei hora'ah or canons of halakhic decision-making (e.g., majority rule, halakhah ke-batra'i, safek de-oraita, safek de-rabbanan) in adjudicating between conflicting positions. Application of such rules is scientific in the sense that there is little room for subjective judgment. Of course, a determination must be made with regard to which positions are to be considered in the evaluation process and which are to be dismissed as entirely unworthy of consideration in the balancing of competing factors. More likely than not, determination is made, not with regard to the position itself, but with regard to the author of the opinion: Is the opinion that of a person whose erudition commands respect or of a talmid to'eh (errant student)? In principle, that, too, is a determination made on the basis of objective criteria.",
+ "A purer or more basic form of psak takes place when a scholar, upon analysis of the problem and perusal of relevant sources, independently formulates an opinion to which he adheres with conviction. Assuming that the decisor is an individual who is higi'a le-hora'ah and that the deliberative process has been undertaken with intellectual honesty, the decisor need not feel conflicted because of opposing views, and those subject to his authority may rely upon his opinion with equanimity.",
+ "Apart from perusal of sources, precisely what is the nature of the deliberation that yields a psak halakhah? In the vast majority of cases, it involves what in secular law schools is termed \"issue-spotting.\" But, at least at times, it is something entirely different, viz., theoretical analysis of a halakhic concept or provision that proves to be dispositive. I regard both enterprises as scientific because, if carried out properly, both are compelled by the intellect. However, at the same time, it must be candidly recognized that theoretical analysis and, to a lesser degree, \"issue-spotting\" as well, requires acumen that is far from universal and in that sense may be regarded as an art.",
+ "Traditionally, the curricula of yeshivot did not emphasize study of psak halakhah. Although study of psak halakhah often received scant attention, the process through which psak halakhah is derived was all but ignored. And for good reason: The process cannot be taught. One does not teach a toddler how to walk; walking involves a skill that develops innately. The most that we can do is provide an example to be emulated. National law schools pride themselves on not teaching the law but on teaching their students \"to think like lawyers.\" And how does one teach a law student to think like a lawyer? Not by teaching logic or epistemology but by example. The infant observes adults walking, seeks to emulate them, tries to do so repeatedly, falls each time, finally succeeds in taking a number of faltering steps and ultimately masters the science of walking. The law school student is forced to analyze case after case, to trace the reasoning that leads from X to Y and to understand why, given the antecedent assumptions and goals, the reasoning is compelled. The student stumbles and falls repeatedly but ultimately learns by doing. The process parallels that of Eastern European yeshivot which concerned themselves with theory, analysis and methodology rather than with Halakhah per se on the assumption that factual information can be readily obtained at any time but that theory and skills can be mastered only upon assiduous application over a prolonged period of time. It was precisely this awareness that prompted Hazal to observe with regard to the training process: \"Gedolah shimmushah shel Torah yoter mi-limmudah.\"",
+ "This is merely a verbose way of saying that (1) psak is impossible without lomdut and (2) that lomdut cannot be taught other than by example. Of course, the Halakhah, once definitively formulated, can be presented in capsule form. But not every hypothetical can be spelled out and not every eventuality can be anticipated. Rambam's codification of the corpus of Jewish law in the form of the Mishneh Torah and later R. Joseph Karo's restatement in the form of the Shulḥan Arukh met with opposition not so much because of objections to specific rulings or because those rulings could not be lightly overturned but because students might erroneously believe that, having mastered the factual material, they might dispense with both the underlying theory as well as the skills necessary to derive halakhic formulations from primary sources with the result that they would be quite incapable of applying the concise, cryptic rulings presented in those works to novel situations that must inevitably arise and to complex questions that can be resolved only upon identification of component issues.",
+ "Maharsha, Hiddushei Aggadot, Sotah 22a, remonstrated:",
+ "In these generations those who render halahkic decisions on the basis of the Shulḥan Arukh, but do not know the reason underlying every point, if they do not previously examine the matter on the basis of the Talmud…, errors will occur in their decisions and they are among the destroyers of the world. Therefore, one should reprimand them.",
+ "At a much later date, the author of Pitḥei Teshuvah, Yoreh De'ah 242:8, modified Maharsha's comments with the observation that \"perhaps\" those remarks were cogent",
+ "in the time of Maharsha when there was as yet no commentary on the Shulḥan Arukh. But now that the Taz, the Shakh, the Magen Avraham and other latter-day works have been authored and the reason for every ruling is explained in its place, it is proper to render decisions on the basis of the Shulḥan Arukh and the latter-day authorities.",
+ "It is questionable whether Pitḥei Teshuvah's assessment was correct when it was enunciated. Perhaps a question of a spoon and a pot can be decided on the basis of information available in a compendium, perhaps not. Experience teaches that quite frequently the serious questions presented to rabbinic decisors in this generation do not involve matters that are straightforward and clear-cut in nature. Those matters cannot possibly be addressed by persons lacking analytic skills.",
+ "American law schools teach students \"to think like a lawyer\" by forcing the student to analyze actual cases. The cases serve as examples of legal reasoning. I know of no way to illustrate the relationship of lomdut to psak other than by concrete example. The illustrations may appear to be but a string of anecdotes designed to demonstrate what to many is self-evident.",
+ "\"Brisk\" has come to be synonymous with the analytic method. Yet, as reflected in the following anecdote, R. Chaim pointed to the \"issue-spotting\" aspect of lomdut when pressed to justify his insistence upon lomdut as a sine qua non of psak. I heard the narrative as a youth during the course of a shi'ur on Pesaḥim delivered by a rosh yeshivah who was a talmid of the Brisker Rav during the war years. To my regret, I did not commit the material to writing at the time and since I am unaware of any published version I must rely upon my memory which is all too fallible.",
+ "As related by R. Velvel, apparently R. Chaim and a prominent non-Lithuanian rabbinic personage met at a wedding. Not surprisingly, the rabbi inveighed against the Lithuanian mode of study and decried the lack of emphasis upon psak halakhah in Lithuanian yeshivot. R. Chaim countered with the assertion that, in order to arrive at a correct psak, lomdut is essential. The response was met with derision. Thereupon, R. Chaim offered to prove his point by presenting a question to the rabbi which R. Chaim was fully confident that, not being trained in the Lithuanian methodology, the rabbi would answer incorrectly.",
+ "The hypothetical involved two women, one Jewish, the other a gentile, each cooking meat outdoors in separate pots over adjacent fires. The question: The gentile woman shakes her pot, causing a piece of non-kosher meat of indeterminate size to fly through the air and land in the pot belonging to the Jewish woman. Is the food in the Jewish woman's pot permissible or is it impermissible because of the admixture of non-kosher meat? The rabbi responded by observing that the answer hinges upon whether or not the quantity of kosher food is sixty times as great as the quantity of non-kosher food that fell into the pot. When the non-kosher food is of a variety different from the kosher food, the requirement for a quantity sixty times as great for nullification to be effective is biblical; if both foods are of the same variety, biblical law regards the non-kosher food to be nullified even if the kosher food is only slightly greater in quantity. In order to prevent confusion, rabbinic law established a uniform principle for nullification and requires that the quantity of kosher food always be at least sixty times as great as the quantity of non-kosher food. In the case under discussion, the kosher food was greater in quantity than the piece of non-kosher meat but it was doubtful whether or not the quantity of kosher food was sixty times as great as that of the non-kosher food. Accordingly, the rabbi responded that since the kosher food and the non-kosher foodstuffs were meat having the same taste, the requirement of a quantity of kosher food sixty times the quantity of the non-kosher food is rabbinic in nature. Hence, he concluded, the principle that matters of doubt with regard to rabbinic matters are adjudicated permissively applies.",
+ "To that R. Chaim responded that the rabbi had forgotten to take into account the fact that the gentile woman had no reason to soak and salt her meat and therefore the non-kosher food consisted not only of meat but of blood as well. Blood is distinct from meat and differs also in taste. The rabbi immediately reversed himself and conceded that since the doubt was with regard to nullification of a foodstuff in an entirely different type of food the doubt is with regard to a matter of biblical law and must be adjudicated on the side of stringency.",
+ "R. Chaim countered by informing the rabbi that he was again in error because he had overlooked the fact that the meat had already been cooked in the pot for some time and hence the blood within the meat had been cooked as well. Most early-day decisors rule that blood that has been cooked is prohibited by virtue of rabbinic decree rather than by biblical law. Hence, the matter still involved only a possible rabbinic violation. The rabbi was forced to concede error for the second time.",
+ "Thereupon, R. Chaim told him that he was in error yet again. Blood of a properly slaughtered animal is prohibited as blood and is biblically prohibited only in an uncooked state; blood of carrion, in addition to being prohibited as blood, is prohibited as carrion as well. However, cooked and uncooked carrion are equally proscribed by biblical law. Therefore, contended R. Chaim, the matter involves a possible biblical violation of the prohibition against carrion. The rabbi confessed that the point had not occurred to him. R. Chaim then countered once again by pointing to Tosafot, Pesaḥim 22a, s.v. ve-harei dam, that establishes that blood is not included in the biblical usage of the term \"animal\" and hence is not to be equated with meat for purposes of the prohibition against carrion.",
+ "Even a consummate lamdan such as R. Chaim did not always immediately recognize all aspects of a problem. R. Yechiel Michal Rabinowitz, Afikei Yam, II, no. 32, reports an incident in which R. Chaim expressed regret for not having adequately analyzed the issues in a question brought before him. In a situation in which a patient afflicted with a serious illness requires meat on Shabbat and there is a choice between feeding him already available non-kosher meat or slaughtering kosher meat on Shabbat the accepted rule is to slaughter the animal in order to obtain kosher meat. Such is the accepted rule despite the fact that violation of Shabbat restrictions is a much more severe transgression than consumption of non-kosher meat. Various rationales have been advanced for the rule by early-day authorities.",
+ "Such a case arose in Brisk and, to no one's surprise, R. Chaim directed the shoḥet to slaughter on Shabbat. Subsequently, the Dayyan of Brisk, R. Simchah Zelig Reguer, recalled an item that he had earlier come upon in Givat Olam, authored by R. Tevel of Minsk. Givat Olam cites Ran who explains that, although slaughtering an animal on Shabbat constitutes a capital transgression, it involves but a single act, whereas eating a quantity of carrion, although involving only violation of a negative commandment, involves multiple infractions since consumption of each piece of meat equal to the size of an olive constitutes a separate violation. That rationale, contends Givat Olam, is cogent only if the patient is to be fed meat. If, however, the patient is to be given soup prepared from the meat, rules Givat Olam, non-kosher soup is to be preferred since consuming non-kosher soup involves only partaking of the \"taste\" of meat rather than of the meat itself. The prohibition of ta'am ke-ikkar, asserts Givat Olam, is rabbinic in nature and hence far less severe.",
+ "When informed of that ruling, R. Chaim reportedly responded that had that consideration been brought to his attention he would not have directed that an animal be slaughtered but would have ordered soup to be obtained from a non-Jewish restaurant. R. Chaim added the comment that the ruling of Shulḥan Arukh to the effect that the principle of ta'am ke-ikkar is biblical in nature is intended only as a stringency.",
+ "Both anecdotes involve not simply analysis of a situation in which all salient factual elements are expressly stated but contextual analysis in the sense of an ability to draw upon general savoir faire in order to identify unexpressed factors relevant to a halakhic analysis, i.e., awareness that soup rather than meat is the fare of the ill and, more obviously, that gentiles do not draw blood from meat.",
+ "Perhaps a better example is the well-known story of the person who came to R. Joseph Ber Soloveitchik of Brisk to ask if milk could be used for arba kossot. Instead of answering the question, R. Joseph Ber took a sum of money from his pocket and gave it to the person with instructions to use it to purchase wine. His wife pointed out to him that the sum proffered was far in excess of the money necessary to purchase wine. R. Joseph Ber responded with the observation that no Jew would contemplate drinking milk after eating meat. Therefore, if the person sought advice regarding use of milk for all four of the arba kossot he obviously did not have the wherewithal to buy meat for Yom Tov. A person so obviously needy requires more than the price of four cups of wine.",
+ "Such analyses require greater or lesser degrees of insight but hardly require singular intellectual prowess and hardly warrant the appellation lomdut. Of far greater intellectual significance is not identification of issues which, when pointed out, are immediately grasped by all, but delineation and proof of the nature of halakhic provisions. The nature and categorization of a halakhic provision may have a profound impact upon specific psak.",
+ "This is true not only of Halakhah but of any system of law. Numerous examples can be found in any legal system. For purposes of illustration it may be useful to take as an example a recent U.S. Supreme Court case that has received media attention. The case involved a fairly simple issue of this nature. Pursuant to provisions of law, an Independent Counsel was appointed to investigate whether crimes had been committed by members of the Executive Branch during the course of prior investigations into the 1993 dismissal of employees of the White House Travel Office. During the course of those investigations, Deputy White House Counsel Vincent Foster, Jr., met with an attorney for the purpose of obtaining legal representation. The attorney took notes during the course of the meeting. Foster committed suicide some days later. Subsequently, a Federal Grand Jury, at the request of the Independent Counsel, issued subpoenas for those notes. The attorney sought to quash the subpoenas on the grounds that the notes were protected by attorney-client privilege.",
+ "The issue before the Supreme Court in Swidler & Berlin and James Hamilton v. United States was whether the attorney-client privilege survives the death of a client. Resolution of the question depends upon the nature of the attorney-client relationship. Is the privilege rooted in, and is it an expression of, the right against self-incrimination? If so, it should not survive the death of the client since the deceased is now beyond the reach of the law. Or is the privilege designed to encourage full and frank communication between attorneys and their clients for much broader purposes that do not necessarily involve criminal liability, e.g., personal and family matters, financial matters and problems arising in the course of operating a business? Knowledge that such communications might be revealed after the client's death would have a chilling effect upon a person desirous of such advice.",
+ "The Court of Appeals ruled that posthumous revelation may be compelled in situations in which the relative importance of the communication to a particular criminal litigation is substantial. The Supreme Court found such a holding to be consistent with the notion that the attorney-client privilege is but another aspect of the privilege against self-incrimination but, upon determining that the attorney-client privilege is designed to promote an entirely different goal, reversed the Court of Appeals. The issue in Swidler could readily be formulated in Brisker terminology, i.e., as a ḥakirah concerning the nature of the attorney-client privilege.",
+ "Brisker ḥakirot of this genre are legend. A sampling of such incisive analyses is included by R. Shlomoh Yosef Zevin in the pointed vignettes of R. Chaim he presents in his characteristically keen portrayal of the scholarly personality of R. Chaim in Ishim ve-Shitot. One, actually definitively resolved much earlier by R. Akiva Eger in the latter's novellae on Oraḥ Hayyim 294, involves the following question: A person, for whatever reason, does not recite the shemoneh esreh for moza'ei Shabbat. The following morning he is required to recite the prayer twice, the first for shaḥarit and the second as tashlumin or a \"make-up\" for the missed evening prayer. In which of the two shemoneh esreh prayers should he include attah ḥonantanu which he did not recite the previous evening? The intuitive reaction is that attah ḥonantanu should be included in the second shemoneh esreh, i.e., the substitute for the prayer omitted the previous evening. Apparently, as reported by R. Zevin, such was the about-to-be rendered opinion of a rabbinic colleague, who lacked R. Chaim's acumen.",
+ "The correct answer, however, hinges upon an analysis of the nature of the ordination of attah ḥonantanu. Was it ordained for inclusion in the ma'ariv shemoneh esreh of moza'ei Shabbat or for inclusion in the first shemoneh esreh of the new week? If the latter is the case, then were, through some vagary of the calendar, Sunday morning to occur before Saturday evening, attah ḥonantanu would properly be included in the Sunday morning prayer. To formulate the ḥakirah is to recognize the answer. As R. Chaim and R. Akiva Eger before him realized, there is no reason to associate attah ḥonantanu with the ma'ariv prayer; there is every reason to associate it with the first shemoneh esreh recited after the conclusion of Shabbat. Accordingly, a person who did not recite shemoneh esreh on moza'ei Shabbat should include attah ḥonantanu in the very first shemoneh esreh of the new week that he does recite, viz., the first shemoneh esreh of shaḥarit on Sunday morning. In this instance at least, the question of the ḥakham is more than half an answer; it is the entire answer.",
+ "The crucial difference between the analytic approach of rabbinic scholars and the analyses of secular jurists operating within other legal systems is that the former disclaim any originality. The endeavor involves a pristine marshalling of sources and examination of text. Expediency, policy considerations and intellectual bias dare not be permitted to intrude. Widespread ascription of the appellation \"ḥiddush\" to the analysis must be understood in the sense of \"discovery\" rather than \"novellum.\" The purpose is not to read into the text but to make explicit that which is already inherent in the text. Such was the task of rabbinic scholars from time immemorial in all ages and in all lands. Some were simply more successful in those endeavors than others. It has been said that all of Western philosophy is but a series of footnotes to Plato. In a very real sense, all of rabbinic scholarship is but a series of footnotes to the talmudic texts, although sometimes the footnotes take the form of footnotes to footnotes authored by early-day authorities.",
+ "Examples illustrating this point are virtually inexhaustable. It may be relevant to point to an example or two of the analytic approach in earlier ages and of its effect in the formulation of Halakhah. The Sages sought to enhance the honor and dignity of Yom Tov by encouraging haircutting before the advent of the festival. To accomplish that end they employed a simple expedient. They prohibited cutting hair during the intermediate days of the festival, thereby assuring that people would not put off a visit to the barber so that it would become a leisure time activity for ḥol ha-mo'ed. Noda bi-Yehudah marshals evidence showing that their edict was not simply an exercise of general rabbinic legislative power but had the effect of delineating the type of \"labor\" prohibited on the intermediate days of the festival. The prohibition against haircutting, asserts Noda bi-Yehudah, is nothing more and nothing less than categorization of haircutting as a prohibited form of labor. The logical result is that hair may be cut on ḥol ha-mo'ed under precisely the same conditions under which other proscribed forms of labor may be performed on Yom Tov. The chief practical application is that a needy person lacking funds for celebration of Yom Tov who is permitted to engage in otherwise prohibited activities in order to earn sufficient funds for that purpose may also work as a barber and others may avail themselves of his services with impunity.",
+ "Analyses of such nature appear in the responsa of virtually all of the prominent poskim where seminal teshuvot have left an indelible imprint upon the halakhic process, although, to be sure, they seldom employed either the form or vocabulary later developed in Lithuanian circles. One example culled from Teshuvot Hatam Sofer will serve as illustration.",
+ "It is, of course, forbidden to eat non-kosher foodstuffs. There is also a second prohibition against consuming food that has acquired the taste of a non-kosher substance. An example would be a situation in which a piece of non-kosher meat is placed in a pot of cooking vegetables and then removed. No meat remains in the pot of vegetables, but the flavor of the non-kosher meat is clearly discernible. The vegetables are prohibited on the basis of ta'am ke-ikkar, i.e., the prohibition against eating food endowed with the \"taste\" of a non-kosher substance.",
+ "Hakirah: Are the vegetables prohibited because of a new prohibition against ta'am, i.e., a superimposed prohibition forbidding the taste or flavor of a non-kosher substance that is quite distinct from the antecedent prohibition proscribing the non-kosher food itself? Or is the prohibition against partaking of the ta'am of a prohibited substance simply a novel expression of the underlying prohibition against eating a non-kosher food? But, comes the objection, if ta'am ke-ikkar is really part and parcel of the original prohibition why is it formulated as a separate and distinct prohibition? Answer: Were the basic prohibition not to have been supplemented by the principle of ta'am ke-ikkar the vegetables would be entirely permissible. Biblical law provides for nullification of prohibited foods by adulteration of the forbidden food with kosher food of even a slightly more than equal quantity. The principle of bittul be-rov, in terms of its own canons, would apply to adulteration of any food product even if the flavor of the non-kosher food may be detected in the mixture. However, a new rule in the form of ta'am ke-ikkar renders the mixture impermissible so long as the taste of the non-kosher food is discernible (generally unless the kosher elements are sixty times as great). Accordingly, the principle of ta'am ke-ikkar may not constitute a novel prohibition at all but may merely be a limitation upon, or an exception to, the rule of bittul be-rov which has the effect of causing the underlying prohibition to reassert itself.",
+ "The conceptual distinction between the two formulations is clear, but is there any halakhic difference that flows therefrom? [The thrust of such a question I would term \"halakhic positivism,\" i.e., the ultimate meaning of a ḥakirah is its verification in a concrete nafka minah, just as logical positivism insists that the meaning of a proposition is its mode of verification.]",
+ "The difference becomes manifest with regard to the prohibition against ever min ha-ḥai as it applies to Noahides and to Jews providing Noahides with food. Are food products containing the flavor of ever min ha-ḥai forbidden to Noahides? Ever min ha-ḥai is prohibited to gentiles but the principle of ta'am ke-ikkar is not incorporated in the Noahide Code. Accordingly, if ta'am ke-ikkar is a novel and distinct prohibition, vegetables in which ever min ha-ḥai has been steeped would be permitted to Noahides, although, to be sure, there can be no flavor of ever min ha-ḥai without the presence of at least a minute quantity of the prohibited substance. The quantity of the prohibited foodstuff is so infinitesimal as to be non-existent for purposes of Halakhah: De minimis non curat lex (the law does not concern itself with trifles). But, if it is understood that halakhically recognized particles of matter exist wherever flavor is detectable and if ta'am ke-ikkar is understood as merely the recission of what would otherwise be permitted by invocation of bittul be-rov, the vegetables remain prohibited to Noahides because the principle of bittul be-rov is not one of the canons of the Noahide Code.",
+ "Teshuvot Hatam Sofer, Yoreh De'ah no. 19, s.v. ve-adayin, citing a comment of Rashi, Hullin 98b, adopts the latter position in cryptically ruling that \"taste\" of ever min ha-ḥai is forbidden to Noahides because the principle of bittul is not applicable to them.",
+ "Another much earlier example having a novel modern-day ramification is found in a responsum of an early eighteenth-century authority, R. Ezekiel Katzenellenbogen, who served as the immediate predecessor of R. Yonatan Eybeschutz as chief rabbi of Altona.",
+ "A young Jew who lived in the city of Apt was accused of having frequented a Moslem prostitute. The man was imprisoned and faced death or forced apostasy. There was, however, a possibility of securing his release upon payment of an exorbitant sum of money. The leaders of the community turned to Maharam of Lublin with a query concerning whether, given the totality of the circumstances, they were obligated to secure his release by virtue of the mizvah of \"ransoming captives\" and, if so, whether they were obligated to expend even an exorbitant sum in order to rescue him. Maharam of Lublin, Teshuvot Maharam Lublin, no. 15, responded that the young man had the status of a \"captive\" whom it is a mizvah to ransom but that, despite the danger to his life, \"it appears obvious to me that there is no obligation to pay a ransom greater than his value; nor do I know from whence it would enter one's mind that there is an obligation to ransom him by paying more than his value.\"",
+ "Maharam's ruling became the object of severe criticism. The Mishnah, Gittin 45a, does indeed declare that captives should not be redeemed for more than their value. However, Tosafot, Gittin 58a, indicate that the Mishnah refers only to captives who are held solely for ransom. If, however, the captives are threatened with death they must be ransomed even if the sum required to secure their release is greater than their value. Maharam of Lublin was accused of having ruled as he did because he had overlooked the comments of Tosafot.",
+ "R. Ezekiel Katzenellenbogen, Teshuvot Knesset Yeḥezkel, no. 38, focuses attention upon the discussion of the Gemara, Gittin 45a. The Gemara elucidates the rationale underlying the limitation placed by the Mishnah upon the sum that may be expended for the ransom of a captive. The Gemara posits two alternative explanations: (1) payment of a larger sum would constitute an undue burden upon the community; (2) payment of excessive ransom would encourage future kidnapping of Jews in order that exorbitant sums might be demanded for their release.",
+ "Knesset Yeḥezkel notes that Tosafot, Gittin 58a, in addition to their comment concerning captives whose lives are endangered, offer an alternative solution to the problem addressed in that comment. Tosafot advance the position that even an exorbitant sum may be paid to secure the release of a renowned scholar. The latter distinction, argues Knesset Yeḥezkel, is not at all cogent if a maximum limit was established because of the burden the ransom represents to the community. All individuals are equal insofar as obligations of charity are concerned. Hence, contends Knesset Yeḥezkel, there is no reason why a community should assume an excessive burden for the ransom of a scholar. If, however, the limit was set in order not to encourage the kidnapping of Jews and holding them for excessive ransom, the exception made for a scholar of renown is readily perceived: Persons of such stature are few and far between. Rarely will gentiles have the opportunity to kidnap such a personage. The captor, knowing full well that the huge sum they received was forthcoming only because of the scholarly attainments of their captive, will not be encouraged to engage in a similar enterprise in the future.",
+ "By the same token, argues Knesset Yeḥezkel, the alternative resolution offered by Tosafot in positing an exclusion in instances of a threat to the life of a captive is not at all cogent if the concern is not to encourage future acts of a like nature. Once kidnappers become aware of the fact that unlimited sums are available for the ransom of Jews threatened with death they will quickly realize that they can extort vast sums simply by threatening to execute their captives. That position, contends Knesset Yeḥezkel, can be understood only if it is predicated upon the consideration that a limit was placed upon the ransom to be paid because of consideration of communal burden. A limitation based upon fear of creating onerous financial difficulties for a community is cogent with regard to establishing a limitation upon obligations of charity. However, such considerations are not germane with regard to the rescue of a human life. Thus, each of the two resolutions offered is designed to satisfy only one of the respective rationales advanced by the Gemara.",
+ "Shulḥan Arukh, Yoreh De'ah 252:4, rules that a prominent scholar may be ransomed even for an extravagant sum but makes no mention of a similar exception in instances in which the life of the captive is in jeopardy. According to Knesset Yeḥezkel's analysis, Shulḥan Arukh's position flows directly from his categorization of the limit placed upon the ransom to be paid as designed to discourage future kidnapping. It may be further noted that Rambam, Hilkhot Matnot Aniyim 8:12, codifies the same explanation in limiting the ransom to be paid to the value of the captive despite the fact that earlier, in Hilkhot Matnot Aniyim 8:15, he speaks of such captives as being in danger of losing their lives.",
+ "Knesset Yeḥezkel's keen analysis of Tosafot's comment not only illustrates the role of analytic prowess in halakhic decision-making but also reflects a facet of pikuaḥ nefesh having far-reaching implications.",
+ "Knesset Yeḥezkel takes it for granted that there is no obligation to rescue a captive from certain death if the result will be seizure and ultimate execution of others. This is his position despite the fact that the danger to the present captive is imminent whereas the danger to others lies sometime in the future. The clear implication is that future danger, at least when it is a matter of certainty, is to be equated with present danger. Hence, rescue of a person presently endangered should not to be undertaken if it will result in the loss of a greater number of lives at some future time.",
+ "It is precisely that issue that is involved in the controversy concerning divulging a diagnosis of AIDS to the victim's spouse or sexual partner. Failure to divulge such information results in an ongoing danger to an innocent sexual partner. Breach of confidentiality, it is argued, will have a chilling effect upon others who, fearing that a positive diagnosis will be divulged to their spouses, will refuse to be tested for the presence of the disease. If that does indeed prove to be the case, the result will be the loss of an even greater number of lives. Assuming that such a fear would inhibit a significant number of AIDS victims from availing themselves of testing and treatment — a matter which I believe has yet to be empirically demonstrated — the argument for non-disclosure finds significant support in Knesset Yeḥezkel's discussion of Tosafot's comments. Although evidence that disclosure of a diagnosis of AIDS would result in the loss of a greater number of lives is lacking, the underlying principle, i.e., that prevention of present loss of life should not be undertaken if the result will be greater loss of life in the future, is applicable in a host of other situations.",
+ "In our own day, resolution of one vexing religio-social problem hinges upon analytic categorization of a particular ḥazakah. Do people who have entered into a civil marriage or who have been married under Reform or Conservative auspices without benefit of halakhically qualified witnesses require a religious divorce for dissolution of their relationship? In principle, Jewish law recognizes the equivalent of common law marriage on the basis of ḥazakah ein adam oseh be'ilato be'ilat zenut, i.e., a halakhic presumption that people do not wish to engage in fornication and therefore, when the option is available, cohabit with intent to establish a marital relationship. The facile understanding of that statement is that the ḥazakah is but an example or instantiation of a general ḥezkat kashrut, i.e., people are, and desire to be, law-abiding. Therefore they seek marriage rather than an illicit relationship. But what of a person whose lifestyle and general comportment betray a total lack of fidelity to Halakhah? It would stand to reason that, for them, no such presumption exists with regard to marriage any more so than with regard to other aspects of their behavior. So concluded R. Moshe Feinstein.",
+ "R. Yosef Eliyahu Henkin, however, reached a totally different conclusion on the basis of his analysis of the same ḥazakah. For R. Henkin the ḥazakah was not at all an instance of ḥezkat kashrut but a ḥezkat hanhagah, a matter of comportment rooted in human psychology and reflective of the essence of marriage. The essence of marriage, argued R. Henkin, is a woman's entry into an exclusive conjugal relationship. The human male, by operation of his psyche, seeks exclusivity in his sexual partner and will go to great lengths to prevent others from seeking the sexual favors of his partner. Whenever a male and female enter into that type of relationship the effect is matrimony whether or not such a formal institution is either sought or acknowledged. Accordingly, R. Henkin ruled that parties to any such relationship require a get for its termination, while R. Moshe Feinstein ruled that in such circumstances a get was not needed. The controversy in this grave area of family law hinges entirely upon the lomdut underlying the ḥazakah ein adam oseh be'ilato be'ilat zenut.",
+ "These examples are taken more or less at random as illustrations of the effect of lomdut upon psak over a period of several centuries. It should be quite evident that lomdut did not originate in late nineteenth-century Lithuania. To be sure, the lomdut of Brisk was not the lomdut of Telshe; the responsa of R. Akiva Eger are markedly different in style from those of Hatam Sofer. Assuredly, among those engaged in the analytic dialectic of Halakhah there are differences of style, language, vocabulary, expression and even of insights and thought processes. However, when all is said and done, halakhic analysis is either cogent or it is not. Cogency is immanent in the analysis, regardless of variations of language, style and flavor.",
+ "Of course, some scholars will experience and give voice to insightful observations that elude others. Given the nature of the human intellect, there may be, and indeed there often is, disagreement with regard to the accuracy of such observations and the cogency of analytic formulations. Conflicting analyses of gedolei hora'ah are well within the parameters of elu ve-elu divrei Elokim ḥayyim. Not so with the patent errors of a talmid she-lo higi'a le-hora'ah. Just as correct analysis is necessary for correct psak, faulty analysis necessarily results in faulty psak. Failure to appreciate the lomdut or conceptual subtlety of a talmudic aphorism can lead to serious confusion. In yeshiva circles the caricature of lomdut gone hay-wire is the application of the principle kelutah ke-mi she-huneḥah damya in ruling that a pot of milk over which a chicken has flown is thereby rendered non-kosher. Even a school child would have no difficulty in recognizing that kelutah ke-mi she-huneḥah damya is a \"meta\"-physical constructor, as some would prefer, a legal fiction, whereas an admixture of milk and meat depends upon the quite physical, and indeed sensual, attribute of taste, or in the Gemara's own formulation, \"derekh bishul asrah Torah.\"",
+ "In other instances, incongruous analysis is much less obvious. Elsewhere, I have had occasion to point out that the gross distortion of Halakhah that has been committed in some quarters in groundlessly declaring a state of kiddushei ta'ut and issuing annulments is based upon a misunderstanding of the principle tav le-meitav tan du mi-le-meitav armelu (better to dwell as two than to dwell alone). The proposition that women prefer marriage to persons suffering from certain physical defects over spinsterhood is cited by the Gemara, Bava Kamma 110b, in explaining why levirate obligations exist even when the brother-in-law suffers from such a condition.",
+ "In recent decades the argument has been made that in the modern era, in light of changed economic conditions making it possible for women to earn their own livelihood, different social attitudes toward single women, the higher regard and dignity in which women are held, as well as women's own heightened sense of esteem and self-worth, the talmudic vision of women has been rendered obsolete, and continues the argument, halakhic provisions based upon the presumption of tav le-meitav must be regarded as nugatory. Years ago, R. Joseph B. Soloveitchik declared that rejection of Hazal's application of tav le-meitav \"borders… on the heretical.\" To my mind, the more fundamental point is that such rejection does not border upon, but is squarely within, the boundaries of am ha'arazut. Nonsense is nonsense; theological analysis of nonsense can only create an aura of cogency where none exists.",
+ "The notion that sociological, psychological, economic and attitudinal effects and/or values of the talmudic period were different from those of our day is not at all supported by the aphorism. Writing in a different context, R. Moshe Feinstein marshals comments of the Gemara as well as observations of Tosafot indicating that women of the talmudic period relish the prospect of marriage to a mukeh sheḥin no more so than do their progeny in our day. Bet ha-Levi demonstrates that the Gemara, in context, is seeking grounds for positing an implied condition upon which the marriage may be presumed to be predicated, viz., that if the result would be a levirate relationship with a mukeh sheḥin the marriage is to be nullified retroactively. For such an unstated condition to rise to the level of an implied condition it must be a universally recognized presumption (anan sahadi). Since some women do consent to give themselves in marriage to mukei sheḥin because tav le-meitav tan du, i.e., those women prefer a mukeh sheḥin to spinsterhood, such a presumption is clearly not universal. Hence, the suggestion that the original marriage was conditional in nature is firmly rebutted.",
+ "\"Lomdut\" is required in order to recognize that (1) a theory for negating the levirate obligation is absolutely necessary even if tav le-meitav is not accepted as cogent; (2) that the only available theory is conditional marriage; and, finally, (3) that, in order to defeat the argument, tav le-meitav need not be posited as a universal principle. Ockham's razor applies to talmudic dialectic no less than to metaphysics. The Gemara does not posit theorems, postulate hypotheses or advance theories unless necessary for a halakhic contingency and, when it does, the theorem, postulate or hypothesis is crafted narrowly to fit the purpose.",
+ "A student recently informed me that when he had interviewed for a rabbinic position he was asked, \"And who will be your posek?\" He was quite perturbed and told me that when he had answered, \"I will,\" he felt that the committee members viewed him as an arrogant whippersnapper. What he had meant was: I shall pasken and if there is a complicated matter I will decide who is the expert in that particular area with whom I wish to consult. That is as it should be. A rav should be a moreh hora'ah and ba'alei battim should expect no less.",
+ "Warmth, tact, dignity, vision, oratorical talent, administrative skills and many other qualities are necessary to assure a rabbi's effectiveness. But a rabbi who is not qualified to be a moreh hora'ah cannot be, and should not claim to be, a rav. And without the analytic skills of a lamdan it is not possible to function as a moreh hora'ah. Ergo, a rav, to merit the appelation, must be a lamdan.",
+ "\"Now these are the ordinances which you shall set before them. \"It should not enter your mind to say, \"I shall teach them a section of Torah or a halakhah twice or thrice… but I shall not trouble myself to cause them to understand the reasons for the matter and its explanation….\"",
+ "RASHI, EXODUS 21:1"
+ ],
+ "Chapter I Litigation and Arbitration before Non Jews": [
+ "It is forbidden for us to present our lawsuits before the courts of gentiles for they have no portion in our faith.",
+ "ZOHAR, EXODUS 257a",
+ "I. The Prohibition",
+ "1. The Prohibition and the Vitality of Jewish Jurisprudence",
+ "A colleague, who on occasion teaches a course in Roman law, claims that the following incident actually occurred. On the last day of the semester, following the usual perfunctory remarks concerning the final examination, a student raised his hand. Upon being recognized, the student asked, \"Are we responsible only for the material in the textbook or are we responsible for recent cases as well?\" The classroom erupted in laughter. The question, which might have been appropriate in any other law school class, was discordant in a class on Roman law. The Roman empire has long since ceased to exist and abrogation of Roman law followed closely in the wake of its dissolution. It is, of course, ludicrous to speak of \"recent cases\" in conjunction with a system of law that, despite its continued and profound influence over other systems of law, has for many centuries not been sovereign in any jurisdiction.",
+ "Such a question, if asked of a professor teaching Jewish law, would not be greeted with derision despite the fact that Jewish law has not been the law of any sovereign jurisdiction for two millennia. Even with the establishment of the State of Israel, Jewish law is the law of that jurisdiction only with regard to matters of marriage and divorce. Yet Jewish law is not only alive and well but is constantly applied in novel situations. That is true not only of ritual law but also of the jurisprudence of Jewish law. Case material regarding such matters is as recent as the morning mail which, virtually on a daily basis, brings Torah journals containing learned articles devoted to myriad aspects of Jewish law. Despite the fact that nowhere is Jewish jurisprudence the law of the land, despite the fact that rabbinical tribunals do not enjoy police power and cannot compel appearance, Jewish law has not only survived but remains healthy and robust.",
+ "There are a variety of socio-religious factors that serve to explain the disparate fate of Jewish and Roman law. Not the least significant of those factors is the fact that Jews feel themselves duty-bound to abide by the provisions of Jewish law not only with regard to matters of ritual and religious observance but with regard to their commercial and interpersonal affairs as well. Judaism is more than a religion concerned with the worship and adoration of the Deity; it is a religion of law governing every aspect of human life, including the most mundane.",
+ "Jewish law is transnational and hence dependent upon neither political sovereignty nor judicial autonomy. It is binding as a matter of conscience. Judaism expects its adherents voluntarily to govern themselves by Jewish law in all aspect of their lives. In interpersonal, financial and commercial matters it requires them to be bound by the provisions of Hoshen Mishpat rather than by the provisions of the legal code of the country in which they may reside. The host country is usually quite content to allow its citizens to deal with one another according to any principles they choose and to settle their own disputes among themselves. Generally speaking, the State will not impose itself and its laws unless asked to do so through an appeal to its judicial system. The halakhic principle dina de-malkhuta dina (the law of the land is the law) does not embody the notion that Torah law is superseded by civil law and hence the principle is entirely irrelevant when the State itself does not insist upon adherence to the provisions of its civil code. Indeed, it is the overwhelming consensus of rabbinic opinion that Jewish law would not recognize the applicability of dina de-malkhuta dina with regard to such matters even if the State were to insist that its nationals conduct their affairs solely in accordance with civil law and resolve their disputes only in a secular judicial forum. Judaism does not recognize the State's authority to compel violation of biblical law regardless of whether such law treats of religious or jurisprudential matters.",
+ "These demands made by Jewish law upon adherents to Judaism reflect the fundamental belief that Jewish law is divine in origin and that man does not enjoy the right to supplant divine law with a legal system that is human in origin. The principles recorded in both the Written and the Oral Law are perforce different from those that are the product of human intellect. Vis-à-vis divine law, human law is depicted in rabbinic sources as foreign and alien. Given a choice of legal forums, acceptance of the secular is tantamount to rejection of the divine. To accept the product of human intellect as superior to the divine is idolatrous; voluntarily to subject one's financial and commercial dealings to the governance of a secular legal system rather than to that of the Torah creates at least the impression that the litigant acknowledges the superiority of man-made law.",
+ "The extent to which Jews abided by the provisions of Jewish jurisprudence and were willing to forego recourse to non-Jewish courts even when a litigant would have found it financially advantageous to do so is reflected in a statement of R. Chaim Pelaggi, Masa Hayyim, ma'arekhet dalet, no. 23, in which he reports that from his earliest youth and throughout his life in the city of Izmir he never heard of an instance in which a person sought to enforce a claim to a share in the estate of a deceased to which he or she was not entitled according to the laws of the Torah, despite the fact that such a claim would have been routinely recognized by the Turkish courts of the time. One contemporary writer has remarked that \"even today, among the orthodox everywhere from New York to Bombay, it was considered a disgrace for a Jew to summon a fellow Jew before the courts of the land.\" This is not to say that instinctive obedience to Halakhah in all its facets was uniform at all times and in all places. In some locales it was necessary to reinforce the statutory prohibition against seeking redress in a secular judicial forum, particularly with regard to matters of inheritance, by issuing formal bans against such conduct. Rabbi Jacob Kuli, Yalkut Me-am Lo'ez, Numbers 27:11, found it necessary to warn that, in the long run, not only will a person fail to profit from a recovery in a civil court, but he will be punished by loss of his fortune as well.",
+ "To our shame, in many circles within the contemporary Jewish community, these provisions of Jewish law are honored in the breach. In a relatively recent treatise, a member of an Israeli rabbinic court, R. Ezra Batzri, Dinei Mamonot, III (Jerusalem, 5740), 209, note 1, finds it necessary to repeat the salient aspects of the prohibition against recourse to secular courts in conjunction with his discussion of inheritance despite the fact that he had already discussed them in detail in an earlier volume of the same work. Rabbi Batzri states he has found this aspect of Jewish law to be widely disregarded \"either because people find it difficult to forego the benefit granted them [in a secular court] or [because] they err [in assuming] that there is no prohibition whatsoever with regard to this.\"",
+ "2. The Biblical Source",
+ "The words \"Eleh ha-mishpatim asher tasim lifneihem\" (Exodus 21:1) are immediately recognized as the opening sentence of the Torah reading of the Shabbat known as Parashat Mishpatim and identified in that manner because of the initial noun of the verse. The very division of the biblical text into weekly segments in which that verse introduces one such portion indicates that the verse in question serves as a preamble to the immediately following section. Accordingly, the verse is rendered in translation as \"These are the statutes that you shall place before them.\" As an introduction to the verses that follow, the term \"mishpatim\" must connote the subject matter that ensues, i.e., it serves as a description of the salient provisions of biblical jurisprudence presented in the immediately following section. Accordingly, the word \"mishpatim\" is understood as meaning \"laws\" or \"statutes.\" Moses is commanded by God to transmit a host of commandments pertaining to torts and bailments as well as to sundry other financial matters and is informed that what is about to be imparted to him is in the nature of mishpatim, i.e., rules necessary for the government of society.",
+ "Those laws are to be \"placed\" or \"set\" before the community of Israel. The persons to be bound by those statutes are not explicitly named; they are referred to solely by employment of the term \"lifneihem—before them,\" a term incorporating the pronoun \"them.\" Students of the English language are taught in the primary grades that use of a pronoun that is not governed by an antecedent noun is strictly verboten. Not so with regard to biblical Hebrew. Not infrequently, Scripture relies upon the reader's acumen in correctly identifying the person, place or thing to which reference is made by the employment of a simple pronoun.",
+ "Talmudic exegesis, while it certainly neither denies nor contradicts the plain meaning of the text, assigns an entirely different meaning to this verse. The talmudic understanding of the passage is based upon two linguistic ambiguities: (1) The term \"mishpat,\" of which mishpatim is the plural, is a homonym. It may refer to a \"law\" or it may connote a judgment or sentence; it may also connote a lawsuit or a judicial proceeding. (2) The term \"lifneihem\" may refer to the otherwise unnamed people of Israel or it may refer to the individuals named in the immediately preceding biblical section, viz., the judges appointed by Moses. Seizing upon both ambiguities, talmudic exegesis renders the verse as \"And these are the lawsuits which you shall place before them [the judges].\"",
+ "Understood in this vein, the passage, although couched as a positive exhortation, serves to establish a ban against having recourse to other judicial bodies. Lawsuits must be pursued before the designated judges and before no others. This interpretation of the verse is formulated by the Gemara, Gittin 88b, in the form of two separate injunctions: \" 'Before them'—but not before gentile courts;\" and \" 'Before them'—but not before laymen (hedyotot),\" i.e., not before individuals lacking ordination as judges.",
+ "Both exclusions are readily understandable. The judges designated by Moses were Jews who were charged with rendering judgment in accordance with the laws transmitted by Moses. The Israelites were commanded to eschew gentile courts and to appear before those judges for the purpose of adjudicating their disputes on the basis of the laws of the Torah. The judges designated by Moses derived their authority from their appointment to judicial office. That appointment constituted their ordination as judges and empowered them to designate successors by means of conferring ordination upon others. Thus, in commanding appearance \"before them,\" i.e., before the judges ordained by Moses, the Torah excludes appearance before unordained and hence unqualified judges.",
+ "Ordination carrying with it license to serve as a member of a court authorized to render judgment in both criminal and civil cases was passed on from generation to generation until the time of the Roman persecution in the late tana'itic period. As part of a campaign designed to eradicate Judaism as a religion, the Roman conquerors threatened to impose capital punishment upon any person conferring ordination and upon the ordainee as well and also warned that collective punishment would be inflicted upon all inhabitants of any locale in which the ceremony was held. Despite heroic efforts to preserve the transmission of ordination, and with it the judicial system dependent upon ordination, the Romans eventually succeeded in that oppressive endeavor and ordination lapsed in the middle of the fourth century. Accordingly, imposition of statutory capital punishment has been halakhically precluded since that time. Nevertheless, civil matters, at least to the extent that they are common and usual, may be adjudicated. The Gemara, Gittin 88b, justifies this practice on the basis of the principle of agency in declaring that present-day rabbinic judges merely serve as the agents of earlier judges in whom the requisite authority was vested. Thus, although the prohibition against having recourse to gentile courts remains fully in effect, the prohibition against adjudication of disputes by unordained laymen is, in practice, not operative.",
+ "There is indeed an even more fundamental difference between the respective ambits of these two prohibitions. As recorded by Shulḥan Arukh, Hoshen Mishpat 26:1, recourse to a non-Jewish court is prohibited even with the consent of both litigants. However, if both parties agree, they are permitted to have their dispute heard by a tribunal composed of laymen. The exclusion of laymen from the judiciary is not absolute; laymen are simply denied the power to compel appearance before them with the result that litigants who willingly submit to their authority commit no transgression. However, litigants do not have the right to accept the authority of a gentile court and, should they do so, they incur a serious transgression.",
+ "The disqualification of gentile courts and the disqualification of lay judges both proceed from the single phrase \"before them.\" Nevertheless, there is a disparity between those two disqualifications and that disparity illuminates the need for the formulation of two separate exclusions, viz., \" 'Before them,' but not before courts of the gentiles\" and \" 'Before them,' but not before laymen.\" Since, assuredly, gentiles are not ordained and hence are ostensibly subsumed in the broader exclusion of laymen, the need for a separate exclusion is not immediately clear. However, in light of the foregoing distinction, the problem is readily resolved. Exclusion of laymen serves only to deprive unordained judges of coercive power. The additional exclusion of gentiles yields a prohibition against even voluntary acceptance of their judicial authority.",
+ "Although, in light of that distinction, the halakhic redundancy of the dual formulation is explainable, an underlying exegetical problem remains. If the phrase \"lifneihem\" serves to establish an inferential negation in the nature of a prohibition, the prohibition should logically include laymen no less so than gentiles. If, however, the phrase serves only to establish a qualification limiting the power of judicial coercion, it would appear that there is no basis for a prohibition attendant upon voluntary acceptance even of gentile courts. It would stand to reason that the two exclusions, derived as they are from a single phrase, should be identical in application.",
+ "3. Concerns Reflected in the Prohibition",
+ "It is evident that the Sages regarded the verse \"Eleh ha-mishpatim asher tasim lifneihem\" as establishing two distinct and disparate principles of law. Each of those principles is grounded upon a separate concern. In codifying the prohibition against having recourse to gentile courts, Shulḥan Arukh, Hoshen Mishpat 26:1, adds the comment that submission to the jurisdiction of a non-Jewish court is forbidden even with the acquiescence of both parties and concludes by describing a litigant who transgresses the prohibition as a wicked person who \"has blasphemed and has lifted a hand against the Torah of our teacher Moses, may he rest in peace.\" Recourse to a gentile forum is tantamount to a declaration by the litigant that he is amenable to allowing an alien code of law to supersede the law of the Torah. Such conduct constitutes renunciation of the law of Moses.",
+ "Rashi, in his commentary on Exodus 21:1, offers a somewhat different rationale:",
+ "\"Before them,\" but not before gentiles: Even if with regard to a particular suit you know that they rule in a manner consistent with the laws of Israel, do not bring it before their courts, for one who brings Jewish lawsuits before gentiles profanes the Name of God and ascribes honor to the name of the idols, thereby enhancing their stature (le-haḥashivam), as it is said, \"For their rock is not our Rock, nor our enemies judges\" (Deuteronomy 32:31), i.e., [if we make] our enemies judges [over us] that is testimony to the superiority of that which they reverence.",
+ "R. Shlomoh Duran, Hut ha-Meshulash, III, no. 6, writing in his own name and also citing his father, R. Shimon ben Ẓemaḥ Duran, makes it clear that both the prohibition and Rashi's explanation thereof apply with equal force to appearance before gentile courts whose judges are not idolators and who administer a system of law entirely divorced from cultic practices. Speaking of Moslems in particular, R. Shlomoh Duran declares that \"even though they are not idol-worshipers they deny the laws of our Torah,\" with the result that a person bringing suit before them ipso facto expresses a preference for their religion and their legal system over that of the Torah. Even though the legal system administered by such courts is areligious in nature and theologically neutral, it reflects principles that are at variance from those of the Torah. Hence voluntary choice of such a forum constitutes aggrandizement of those principles to the negation of the norms of the Torah. Halakhic sources discussing the prohibition implicitly follow R. Shlomoh Duran in failing to make any distinction on the basis of the nature and provenance of the legal code administered by the gentile courts.",
+ "As might be anticipated, the explanations offered by Shulḥan Arukh and Rashi are culled from much earlier sources. Rashi's explanation that recourse to gentile courts serves to validate an alien ideology and to enhance the stature of pagan gods reflects a comment found in Midrash Tanḥuma, Mishpatim 3: \"For whosoever abandons [the] judges of Israel and comes before gentiles has first denied the Holy One, blessed be He, and then denied the Torah.\" The emphasis in Midrash Tan��uma is upon denial of God which consequently entails denial of the divine nature of the Torah, since if there is no Lawgiver there can be no Law. Rashi equates the atheism to which Tanḥuma refers with idolatry.",
+ "Shulḥan Arukh's depiction of acceptance of the jurisdiction of gentile courts as tantamount to renunciation of the law of Moses and hence as blasphemy is clearly taken from Rambam, Hilkhot Sanhedrin 26:6, and mirrors a philosophical view formulated by Rambam in his discussion of the nature of divine commandments in the Guide for the Perplexed, Book III, chapter 26. In contradistinction to R. Sa'adia Ga'on, Book of Beliefs and Opinions, Treatise III, chapter 1, who regards commandments as the product of divine will and hence as essentially arational, Rambam insists that all commandments reflect divine wisdom and hence are entirely rational, albeit in some cases their rational nature is beyond the grasp of human intelligence. Thus, rejection of the system of jurisprudence set forth in the Torah in favor of an alien system of law constitutes not only renunciation of the Law of Moses but, ipso facto, represents a renunciation of the Torah as the product of divine wisdom. And denial of the Torah as a manifestation of divine wisdom constitutes a form of blasphemy.",
+ "4. Ramifications of the Diverse Concerns",
+ "It seems to this writer that the rationales offered by Rashi and Rambam are not coextensive in their explanation of the various facets of the prohibition. Both Rashi and Shulḥan Arukh, Hoshen Mishpat 26:1, emphasize that the prohibition against having recourse to a gentile court applies even in instances in which the law applied in that forum is identical to the law of the Torah. Sema, Hoshen Mishpat 26:2, explains that extension of the prohibition to encompass even such situations is derived from the same phrase \"eleh ha-mishpatim.\" For exegetical purposes the term \"mishpatim\" is rendered as \"cases\" or \"lawsuits,\" but the term is not denuded of its basic meaning, i.e., \"laws.\" Thus, explains Sema, the verse must also be understood as an exhortation that \"these laws should be placed before them,\" [viz., before the judges appointed by Moses], i.e., even when the law applied by other courts is identical to that of the Torah and identical to that applied by Jewish judges, the matter must be brought only before the specified judges, viz., those appointed by Moses.",
+ "Nevertheless, the reason for a prohibition in such circumstances is not immediately clear. Rambam does indeed prohibit recourse to a non-Jewish judicial forum even if it has adopted the Law of Moses as its legal code. Accordingly, he includes that example in his categorization of appearance before gentile courts as an act of \"raising a hand against the Torah of Moses.\" Nevertheless, recourse to a gentile court to administer laws recorded in Hoshen Mishpat is to be eschewed for a different reason. Appearance before a gentile court even under such circumstances is forbidden because it is meyaker shem avodat elilim—it enhances the status of an alien legal system. A litigant appearing before a gentile court does not do so because that court has accepted the Law of Moses in whole or in part. The fact that their judgments are identical to those of rabbinic tribunals is entirely coincidental. The litigant appears before the gentile courts because he accepts their authority and if they administer the Law of Moses he accepts that law, not because he regards it as binding upon him by virtue of having been commanded by God, but because it has been endorsed and adopted by gentiles. In doing so, he gives acceptance and credibility to a foreign ideology. The prohibition, as it extends to such cases, is better understood on the basis of Rashi's explanation rather than on the basis of the explanation offered by Rambam and Shulḥan Arukh. Indeed, in reading Rashi's comment, it should be noted that Rashi offers his rationale, not to explain the prohibition in general, but to underscore that the prohibition is in full force and effect \"even if you know … that they will rule in a manner consistent with the laws of Israel.\"",
+ "A close reading of Shulḥan Arukh, Hoshen Mishpat 26:1, reveals that the rationale presented by Shulḥan Arukh is also recorded in juxtaposition to a particular aspect of the prohibition. Shulḥan Arukh declares that recourse to gentile courts \"even if both litigants have consented to adjudicate before them is prohibited and whosoever seeks to litigate before them is a wicked person and is as if he has blasphemed and lifted a hand against the Torah of our teacher Moses, may he rest in peace.\" Shulḥan Arukh is readily understood as seeking to underscore the principle that mutual acquiescence does not mitigate the prohibition. Rejection of Jewish law is tantamount to blasphemy; mutual acquiescence is nothing other than mutual blasphemy.",
+ "There is, however, no hint in halakhic sources that these two rationales are mutually exclusive or in any way incompatible. Indeed, a number of authorities, including R. Shlomoh Duran, Hut ha-Meshulash, III, no. 6, and his son R. Shimon Duran, Teshuvot Yakhin u-Bo'az, II, no. 9, first cite Rashi and then Rambam without positing any disagreement between them and elsewhere a second son, R. Ẓemaḥ Duran, Teshuvot Yakhin u-Bo'az, I, no. 6, combines the substance of both rationales in a single sentence. R. David ibn Zimra, Teshuvot Radvaz, IV, no. 1190, also combines both concerns in stating that appearance before a gentile court is an indication that one who does so believes \"that the laws of our Torah are not true\" and continues with the statement \"and moreover he causes the Shekhinah to remove itself from Israel because he ascribes power to another god.\"",
+ "The prohibition against recourse to arka'ot shel akum or secular courts because such action is in the nature of \"lifting a hand against the Torah of Moses\" is not limited to bringing a suit before a gentile court. That facet of the prohibition includes any judicial proceeding that negates the Law of Moses. A judicial body composed entirely of judges who happen to be members of the Jewish community but who administer an alien system of law, is undoubtedly to be classified as within the halakhic category of arka'ot shel akum for the simple reason that the laws such a court administers are not those of the Torah. Thus, voluntary appearance before those judges for purposes of litigation is also tantamount to renunciation of the laws of the Torah in favor of a disparate system of law. A judge who hears a case involving two Jewish litigants and renders judgment in accordance with a secular corpus of law is, at the very least, guilty of aiding and abetting transgressors.",
+ "Since, as noted earlier, acquiescence by both litigants does not serve to mitigate the prohibition against \"lifting a hand against the Torah of Moses\" and since the prohibition applies even when the judges themselves are Jews, it follows that the parties are not entitled to accept the authority of a rabbinic court or Bet Din but stipulate that the Bet Din shall apply the law of a secular state. Thus, Teshuvot Oraḥ le-Ẓaddik, Hoshen Mishpat, no. 1, declares that, since recourse to non-Jewish courts is forbidden, a fortiori, it is forbidden for Jews to adjudicate disputes in accordance with the laws of gentile nations.",
+ "Accordingly, if two parties, regardless of where they may be domiciled or where the contract is executed, enter into a contract and stipulate that any dispute with regard to fulfillment of the terms of the contract is to be resolved by a rabbinic court in accordance with, for example, the laws of the State of Delaware, the stipulation is void by virtue of being inconsistent with biblical law (matneh al mah she-katuv ba-Torah). The parties are, of course, bound to appear before the Bet Din, but the Bet Din must adjudicate the dispute in accordance with the provisions of Hoshen Mishpat.",
+ "5. Secular Courts in the State of Israel",
+ "The prohibition involved in \"lifting a hand against the Torah of Moses\" applies equally whether the authority of the judiciary is derived from the police power of the secular state or the voluntary agreement of the litigants and, a fortiori, when it is derived from the authority of a secular Jewish state. Thus, following the establishment of the State of Israel, when it became evident that the batei mishpat—the national courts of the State of Israel—could not even attempt to rule in accordance with the provisions of Jewish law because the Knesset refused to enact Hoshen Mishpat as the law of the land, Hazon Ish, Sanhedrin, no. 15, sec. 4, declared unequivocally that the status of the Israeli batei mishpat is no different from that of arka'ot shel akum. Despite the fact that the judges are Jews rather than gentiles and despite the fact that they sit under the color of authority of a Jewish state, Hazon Ish ruled that their status was that of arka'ot shel akum because the system of law they impose is not that of the Law of Moses; substitution of statutes and precedents of Ottoman or British law, or even of the laws of the Knesset for the laws of the Torah, constitutes renunciation of the Torah of Moses. A view similar to that of Hazon Ish is advanced by the late Chief Rabbi of Israel, R. Isaac ha-Levi Herzog, Ha-Torah ve-ha-Medinah, VII-VIII, 9-12, as well as by R. Zevi Pesach Frank; R. Ovadiah Yosef as recorded in the latter's Yeḥaveh Da'at, IV, no. 65; R. Benjamin Silber, Oz Nidberu, III, no. 74; and R. Moshe Sternbuch, Teshuvot ve-Hanhagot, III, no. 441, s.v. ve-da.",
+ "To the objection that neither the judge nor the attorneys who appear before them are proficient in Jewish law and to the objection that Jewish law at times may appear to be unwieldy or not readily applicable to novel circumstances, Hazon Ish had a ready reply. He countered that batei mishpat need not necessarily be required to render judgment in accordance with any system of law. In effect, he counseled that Israeli courts should sit as courts of equity rather than as courts of law. As courts of equity they would render judgment in accordance with what they perceive to be fair and equitable in any given case.",
+ "Such a procedure is not a violation of Halakhah because such adjudication is tantamount to arbitration or pesharah. Rather than insisting upon a judgment in strict conformity with provisions of Halakhah, Jewish law supports, and indeed encourages, litigants to accept arbitration. Arbitration incorporates elements of compromise and allows judges to take account of extralegal considerations of fairness and equity with the result that, upon conclusion of the proceedings, litigants are less likely to harbor feelings of rancor and ill will.",
+ "Arbitration is not renunciation of the Torah of Moses both because it is specifically authorized by the Torah and because it does not supplant one system of law with another. It is only rejection of one corpus of law, viz., the Torah, in the form of adoption of a different code to be applied uniformly that constitutes \"lifting a hand against the Torah of Moses.\" Laws are rules to be applied in all cases; ad hoc decisions do not constitute a system of law.",
+ "Professor Menachem Elon, Ha-Mishpat ha-Ivri (Jerusalem, 5738), I, 22, note 80 and I, 122, note 174, takes issue with Hazon Ish on the basis of the words of Me'iri in his commentary on Sanhedrin 23a. The Gemara, Sanhedrin 23a, speaks of \"courts of Syria\" whose authority could not be legitimately challenged because they had been accepted by the populace. The members of those courts were Jews but are described by Rosh, ad lo-cum, as \"not having been proficient in the laws of the Torah.\"",
+ "Hazon Ish cites the talmudic reference to the \"courts of Syria\" as evidence for the thesis that authority is vested in society to establish a judicial system whose judgments may not be consistent with Jewish law. Since the court's jurisdiction must be accepted by the litigants despite the judges' lack of qualification, the court's decisions must be regarded as valid because they constitute a form of arbitration. Hazon Ish asserts that the State of Israel has the authority to appoint judges to its courts even though they may be entirely ignorant of Jewish law and empower them to sit as the equivalent of a court of equity in order to render ad hoc decisions on the basis of considerations of fairness and common sense. The Gemara's discussion of the authority of the \"courts of Syria\" is cited as evidence for the conclusion that society has the right to compel that type of adjudication.",
+ "Hazon Ish assumes that the \"courts of Syria\" either, at times, misapplied Jewish law because of lacunae in their knowledge or that they made no attempt to do other than mete out a subjective form of justice. He states unequivocally that they did not rule in accordance with the law of the land or in accordance with their own judge-made law.",
+ "Me'iri, however, comments that the \"courts of Syria\" rendered judgment \"in accordance with subjective judgment (omed ha-da'at), laws (ḥukkim) and customs (nimusim).\" R. Shlomoh Goren, Ha-Tzofeh, 3 Adar I 5708, reprinted in Teḥukah le-Yisra'el al Pi ha-Torah, I, 150-151, and Menachem Elon understand Mei'iri's comment quite literally with the result that they ascribe to him the position that, with the approval of the populace that appointed them, Jewish courts may adjudicate lawsuits that come before them in accordance with a non-Jewish system of law. However, Rabbi Goren, citing Urim ve-Tumim 22:1, urim, sec. 15, asserts that the procedures of the \"courts of Syria\" are appropriate and legitimate only in communities in which there are no scholars who are proficient in Halakhah but that, where such scholars are available, establishment of judicial bodies in the nature of the \"courts of Syria\" cannot be countenanced.",
+ "It should be noted that, even if this interpretation of Me'iri's comment is accepted as correct, it is impliedly rejected by other early authorities. Ran, Sanhedrin 23a, cites the opinion of R. David who explains that the establishment of the \"courts of Syria\" was appropriate because, despite the fact that the members of those courts were not scholars of note, \"it was impossible that [among a panel of three judges] there not be one who was proficient.\" Ramban, in his commentary on the same talmudic discussion, apparently endorses R. David's explanation. Implicit in that explanation is rejection of the notion that \"courts of Syria\" ruled in accordance with a non-Jewish system of law.",
+ "Rabbi Herzog, Teḥukah le-Yisra'el, I, 163, raises the possibility that the \"courts of Syria\" adopted gentile law as their own and tentatively suggests, only to reject, the notion that if Jewish courts adopt gentile laws because they find them to be equitable and pragmatic such laws no longer have a gentile character since their authority stems from takkanah or judicial enactment. Rabbi Herzog concludes with the statement that \"it is reasonable (mistaver)\" to assume that Me'iri's use of the term \"dinim\" does not at all refer to the laws of the general society but to \"laws they established for themselves on the basis of their own intellect,\" i.e., judge-made law in the nature of autonomous takkanot formulated by the \"courts of Syria\" themselves.",
+ "It seems to this writer that Me'iri's comments can be understood in a manner somewhat similar to, but significantly different from, the interpretation rejected by Rabbi Herzog. Rabbi Herzog cogently rejects the notion that the halakhic defect inherent in gentile legislation can be cured by formal endorsement and reenactment on the part of Jewish authorities. A careful reading of Me'iri's comment indicates that, in his opinion, the \"courts of Syria\" adjudicated on the basis of \"assessment of the intellect, laws and customs.\" Those terms should be understood disjunctively, but not in the sense that some issues were decided subjectively, other issues on the basis of custom and yet others on the basis of secular law. Rather, in any case brought before them, those judges were free either to render judgment in an entirely subjective and novel manner, to adjudicate on the basis of some custom or practice, or to decide the case in accordance with the legal system of the dominant society. In no suit brought before them did they regard themselves as bound by the secular law. It appears to be self-evident that even a properly established Bet Din, when applying principles of pesharah, need not reject a resolution it finds to be fair and equitable simply because it has been incorporated in a foreign legal system. Quite to the contrary, it would be prudent for them to examine the provisions of such legal systems in order to determine if indeed an appropriate resolution of the controversy before them might not already have been developed in such a system.",
+ "Thus, Me'iri may well be understood as stating that when they saw fit to do so, the \"courts of Syria\" did indeed rule in accordance with prevalent customs or the laws of the general society. The crucial point, however, is that they did not regard themselves as bound to do so nor did they do so in a uniform and inviolable manner. The net result was that even when they ruled in accordance with \"dinim,\" i.e., secular law, it was on the basis of omed ha-da'at, i.e., on the basis of their own ad hoc determination that the provisions of secular law were appropriate in that particular case.",
+ "If this analysis is correct, those early authorities who impliedly reject Me'iri's explanation must perforce reject the explanation that the \"courts of Syria\" acted entirely on the basis of subjective judgment. It may be presumed that those authorities decline to assume that the \"courts of Syria\" acted on the basis of subjective judgment because they espouse the view that, although individual litigants are perfectly free to accept arbitration and indeed should be encouraged to do so, nevertheless arbitration may not be imposed upon a community by its judicial or administrative officials because such an edict would serve totally to abrogate the jurisprudence of Halakhah in that jurisdiction.",
+ "6. Arbitration",
+ "Appearance before Jewish judges sitting as a court that administers an alien system of law, even if that system was enacted by Jews, is forbidden despite the fact that there is no hint of endorsement of pagan ideology because it represents renunciation of the Law of Moses. The selfsame consideration would render it impermissible to submit a dispute to a non-judicial forum, e.g., to arbitrators, or even to a Bet Din, with the stipulation that the arbitrators or the Bet Din adjudicate in accordance with the law of the land.",
+ "Such a situation allegedly occurred a number of years ago in a European community. The community engaged a rav and, seeking to avoid a possible din Torah, stipulated in their contract with him that any dispute between the rav and the kehillah be adjudicated by a panel of arbitrators who would render a decision in accordance with civil law. The rav sought guidance with regard to whether he was bound by Halakhah to abide by that stipulation. Since the stipulation is in the nature of matneh al mah she-katuv ba-Torah, i.e., it is at variance with the law of the Torah, it is entirely void and therefore unenforceable. Not only does such an undertaking fail to bind the contracting parties but voluntary adherence to such an agreement would constitute a violation of Jewish law.",
+ "Conversely, it seems to this writer that there are situations in which the rationale advanced by Rashi, viz., that appearance before gentile courts \"enhances the name of idols,\" is applicable even though the rationale advanced by Shulḥan Arukh is not. As noted earlier, the term \"idols\" employed by Rashi is not to be taken literally. Were that the case, the prohibition against recourse to gentile courts would be operative only if the laws enforced by them were of cultic nature or origin; courts administering a non-religious code of law would not fall within the ambit of the prohibition. However, that conclusion is not reflected in any halakhic source. Perforce, the reason must be that any system of law other than that of the Torah is \"idolatrous\" in the sense that it reflects legal norms that are at variance with those of the Torah. Agreement to be subject to the jurisdiction of a court receiving its authority from such a legal system enhances and aggrandizes \"the name of idols\" in the sense that it confers legitimacy upon the ideology from which the court derives its authority. Voluntary appearance before a particular judicial body in and of itself confers status and stature upon that court and the legal system from which it derives its authority even if, in a particular case, it does not impose the provisions of a disparate legal system.",
+ "Of course, courts generally do rule in accordance with the law of the jurisdiction in which they sit, but that is not always the case. For example, in small claims courts of many states, including New York, litigants have the option of a trial before a judge or a hearing before an arbitrator. Such appearance would be prohibited even if the arbitrator were authorized to rule solely on principles of equity and fairness. To be sure, as noted earlier, arbitration undertaken in an ad hoc manner does not constitute \"raising a hand against the Torah of Moses.\" Nevertheless, that is true only so long as the arbitration proceeding is conducted by a Bet Din or by laymen. However, when undertaken under the auspices of a gentile judicial body it is an acknowledgment of voluntary acceptance of the authority of an alien ideological system and hence is not permissible.",
+ "That arbitration before gentile courts is prohibited is evident from the ruling of Shulḥan Arukh, Hoshen Mishpat 68:1. Shulḥan Arukh speaks of various legal instruments executed by gentile courts that are not enforceable by a Bet Din. Among those are shetarei pesharah or arbitration awards. Such documents are issued by gentile judges sitting, not as a court of law, but as arbitrators. The reason that such awards are not recognized in Jewish law, despite its encouragement of arbitration and mediation, is that when conducted before a judicial body, the matter assumes the guise and character of a judicial proceeding, as indeed is the case with regard to pesharah conducted by a Bet Din. Halakhah regards pesharah as a legal procedure. Accordingly, when carried out by a gentile judicial body it falls within the ambit of meyaker shem avodat elilim because it enhances the stature of a foreign judicial system.",
+ "There is a fundamental difference between arbitration carried out by laymen and arbitration conducted by a court. The former is conducted entirely outside of the judicial arena. Even though the award of the arbitrators can be enforced by a court of competent jurisdiction, the arbitration proceeding itself is entirely extra-judicial. However, whether conducted by a Bet Din or by a secular court, arbitration is a judicial procedure conducted with judicial authority. Accordingly, voluntary submission to arbitration under the authority of a gentile court is prohibited because it is an expression of preferment and aggrandizement of a gentile judicial authority. Thus Arukh ha-Shulḥan, Hoshen Mishpat 22:8, rules that it is permissible to accept a non-Jew \"to adjudicate on the basis of his judgment, not on the basis of established [gentile] law, just as it is permitted to accept a relative or a person disqualified from serving as a judge to serve in such a capacity.\" Arukh ha-Shulḥan clearly permits non-Jews who do not serve in a judicial capacity to act as arbitrators.",
+ "The permissibility of adjudication of disputes by a non-Jew (a) who is not a judicial official and (b) who administers justice on the basis of general considerations of equity and fairness rather than on the basis of a legal code is reflected in a responsum of R. Raphael Ankawa, Pa'amonei Zahav (Jerusalem, 5772), no. 26, s.v. ve-im ken. Pa'amonei Zahav reports that in his locale, in cases of altercation between Jews, it was time-honored practice to bring the matter before the \"ruler of the city.\" Pa'amonei Zahav defends the practice against the contention that it constitutes a violation of the prohibition \" 'Before them'—but not before gentile courts\" on the grounds that the \"ruler of the city\" does not sit in \"a place of judgment\" and does not rule in accordance with statute but \"as his eyes see fit.\"",
+ "This analysis also serves as the basis for resolving the problem presented in the beginning of the present discussion, viz., how is it that the prohibition against having recourse to non-Jewish courts remains in effect even if both parties acquiesce to such proceedings but that the prohibition against lay, i.e., non-ordained, judges does not apply in situations in which both litigants accept their jurisdiction? The Torah does indeed declare \" 'Before them'—but not before laymen.\" But neither of the two reasons supporting the prohibition against having recourse to gentile courts applies to hedyotot or laymen. Appearance before lay judges for adjudication in accordance with Jewish law cannot be even remotely associated with endorsement of an alien ideology and, in Rashi's terminology, does not turn our \"enemies\" into our judges. Nor does appearance before non-ordained judges constitute renunciation of the Law of Moses. Despite the absence of formal qualification in the form of ordination, laymen may be entirely proficient in Hoshen Mishpat and hence fully competent to apply the law correctly. Assuredly, charging them to do so does not represent \"raising a hand against the Torah of Moses.\" To be sure, since they lack judicial authority, laymen are not empowered to compel appearance before them but lack of coercive authority does not preclude voluntary acceptance of their authority. Such voluntary acceptance is quite similar to voluntary acceptance of pesharah rather than rigid application of law. Accordingly, the exclusion reflected in the exegetical comment \" 'Before them'—but not before laymen\" is understood as limited to a reference to the coercive power vested in the judiciary established by Moses.",
+ "II. Exceptions to the Prohibition",
+ "1. Non-Adversarial Proceedings",
+ "The biblical prohibition expressed in the verse \"And these are the mishpatim which you shall place before them\" is limited to empowering gentile courts with the adjudication of mishpatim. Matters that are not subsumed within that denotation are not prohibited. In exegetical context, and hence for purposes of defining the prohibition, \"mishpatim\" does not mean \"laws\" or \"statutes\" but \"lawsuits\" or \"causes of action.\" Courts are concerned with many affairs that involve the administration of legal matters but which are entirely divorced from litigation. To cite a rather trivial example, a legal change of name requires a court order. An application to a court for a change of name is not a violation of lifneihem ve-lo lifnei arka'ot shel akum. Naturalization proceedings serve as another example. Acquiring citizenship is certainly permitted and there exists no prohibition against initiating the requisite proceeding in a federal court in order to achieve that goal. Such matters are of no import to Jewish law and, for that reason, even if for no other, are not encompassed within the meaning of the term \"mishpatim.\" But more significantly, such matters are not adversarial and do not require adjudication between competing claims.",
+ "Inheritance is clearly a matter with which Jewish law is concerned. However, probate of a will requires utilization of the offices of a probate court. Banks and other financial institutions are constrained from releasing funds unless the deceased's will is probated. Certainly, if the will is to be contested, Halakhah demands that such a proceeding must be brought before a Bet Din rather than before a secular court and that the parties agree to have the court distribute the assets of the estate in accordance with the decision of the Bet Din. However, probate of an undisputed will is purely a ministerial function and hence does not violate the prohibition of lifneihem ve-lo lifnei arka'ot shel akum.",
+ "The common denominator in each of these examples is that they involve matters that are non-adversarial and do not require adjudication between competing claims. The term \"mishpatim\" as used in this context, refers to matters of litigation, i.e., matters involving different parties each of whom desires something the other is not prepared to grant. Disputes must be presented to a Bet Din for judgment in accordance with Halakhah. Matters that are private rather than interpersonal and matters that involve no conflicting interests or claims are not \"suits\" or \"causes of action\" within the meaning of the term \"mishpatim.\" The prohibition against recourse to gentile courts is limited to adversarial proceedings. Matters that are entirely ministerial are not encompassed within the ambit of the prohibition and turning to secular courts to secure the benefit of such proceedings is not a renunciation of the Law of Moses in favor of a disparate legal system.",
+ "2. Siruv",
+ "The basis for this distinction is reflected in a provision of Jewish law that does apply to adversarial proceedings. As recorded in Hoshen Mishpat 26:2, there are circumstances in which it is permissible to sue a fellow Jew in a secular court. A person with a claim against another must apply to a Bet Din for an order directing his adversary to appear before that tribunal. Upon a determination of the Bet Din that the defendant's failure to appear is unwarranted, the Bet Din issues a siruv (lit.: refusal) which is essentially a declaration that the defendant is in contempt of court by virtue of his failure to appear and also grants the plaintiff leave to institute proceedings before a secular court. Even in such cases, the plaintiff is entitled to accept a judgment only for an amount not in excess of the sum he would have recovered in a Bet Din. Recourse to a secular court in such instances is categorized by Rambam, Hilkhot Sanhedrin 26:7, and later by Shulḥan Arukh, Hoshen Mishpat 26:2, as \"rescue\" of funds that otherwise would be lost to the plaintiff.",
+ "However, on the surface, categorization of litigation before a gentile court in some circumstances as an act of rescue does not seem to justify such a course of action. The plaintiff after all, is voluntarily instituting a suit before a gentile court. Is he not thereby accepting a non-Jewish legal system in preference to the Law of Moses and thereby also enhancing the stature of a legal system that supplants the laws of the Torah? The answer lies in the fact that in applying to a Bet Din the plaintiff has clearly indicated his preference for adjudication in accordance with Jewish law. The issuance of a siruv makes it crystal clear that the offices of a civil court are employed only as a last resort in order to avoid financial loss. Submission to the jurisdiction of such a court on account of financial duress cannot be construed as renunciation of the Law of Moses. Nor, when undertaken pursuant to leave of a Bet Din whose services were clearly preferred by the plaintiff, is the plaintiff contributing to enhancement or aggrandizement of a non-Jewish legal system.",
+ "It is for the identical reason that there is no violation of the prohibition against recourse to arka'ot shel akum in any situation in which such recourse is involuntary, as is the case with regard to a defendant who is summoned to appear in a secular court, or in which the objective simply cannot be achieved in a Bet Din, e.g., change of name, naturalization proceedings, probate of an uncontested will, etc.",
+ "It is also for the same reason that there is no barrier to seeking a civil divorce in an appropriate civil court even if the divorce is contested. To be sure, the prohibition against recourse to gentile courts is fully operative with regard to disputes concerning maintenance, alimony, child support and custody of children. Those are matters that should be litigated only before a Bet Din. The same is true with regard to an issue of whether either party is obligated to grant or accept a get. Indeed, involvement of a secular court in matters pertaining to executing a religious divorce is likely to create a situation in which any get that is executed is invalid by reason of duress. Nevertheless, there is no prohibition against applying to a secular court for a decree of civil divorce. Such a decree has no effect whatsoever insofar as Jewish law is concerned. For observant Jews it has the sole purpose of eliminating the threat of a bigamy prosecution by civil authorities upon subsequent remarriage in accordance with the law of Moses and Israel. Both because the divorce decree cannot be obtained from a Bet Din and because it is designed exclusively to facilitate a civil purpose it presents no problem with regard to the prohibition against recourse to arka'ot shel akum.",
+ "3. Confirmation of an Award of the Bet Din",
+ "Religious courts enjoy no intrinsic judicial status in the eyes of the American legal system. Such tribunals are, however, recognized as the legal equivalent of arbitration panels with the result that the judgments of a Bet Din are enforceable in secular courts as arbitration awards. In order to enforce such awards in a secular court it is necessary for the litigants to sign a submission to arbitration before the proceedings begin and later to have the decision of the arbitrators confirmed by a court of competent jurisdiction within a stipulated period of time. There is no objection in Jewish law to having the award confirmed in that manner despite the fact that it involves an act of a civil court. In the diaspora, Batei Din do not have the power to enforce their judgments. Batei Din may employ the police power of the state, when available, to enforce their decisions. They may harness the power of a secular judiciary for the same purpose in much the same manner that they are empowered to issue a siruv permitting recourse to a secular court against a recalcitrant party. Confirming the award of a Bet Din in a civil court simply reserves the option of utilizing the power of the court to enforce the judgment of the Bet Din should that become necessary. Nevertheless, according to some authorities, actual enforcement of the award of the Bet Din by means of a court order is not permissible without prior leave of the Bet Din in the form of a siruv indicating that the defendant has not complied with the judgment issued by the Bet Din and that the plaintiff is therefore entitled to take further measures to assure compliance.",
+ "Indeed, refusal to sign a submission to arbitration, which is a legal requirement necessary to enforce the decision of a Bet Din in a civil court, is itself grounds for issuance of a siruv. A host of authorities have ruled that, despite appearance before a Bet Din in response to a summons, failure on the part of the defendant to execute the necessary instrument designed to render the decision of the Bet Din enforceable by civil authorities is tantamount to contempt of the Bet Din with the result that the plaintiff may be given leave to apply to a secular court for relief. The justification for this ruling is that the sole rational motive for refusing to sign such a submission is anticipation of an adverse decision by which the litigant does not intend to be bound. It is readily apparent that a person may agree to appear before a Bet Din with the hope, and even the anticipation, that he will prevail but with the intention that, should he lose, he will relitigate in a civil court on the chance that the results of a second round of litigation in a different forum will be more favorable to him. Such a stance is clearly both unacceptable and contemptuous. When the parties abide by the decision of the Bet Din there is no need for involvement of the secular judiciary. Hence agreement to accord the decision of the Bet Din the status of a civilly binding arbitration award poses no additional burden upon a litigant who sincerely intends to be bound by the decision of the Bet Din. Accordingly, refusal to grant such status to the decision of the Bet Din is tantamount to a declaration that the litigant refuses to be irrevocably bound by such a decision.",
+ "III. Further Applications and Exclusions",
+ "1. Rent Control",
+ "As noted earlier, although litigants may not voluntarily accept the jurisdiction of non-Jewish courts, nor may they agree that their disputes be adjudicated by a Bet Din on the basis of civil law, there are areas in which the particular provisions of Jewish law may be incorporated either explicitly or impliedly in a contract and made binding upon the parties. For example, Jewish law provides that rent is not due until the conclusion of the rental period. That provision is subject to variance by explicit agreement of the parties. In a locale in which it is common practice to pay rent in advance, the presumption is that the parties intend to be governed by the accepted practice. Unless otherwise stipulated, the minhag ha-soḥarim, or common trade practice, becomes an implied condition of the contract. Any dispute with regard to the existence or nature of an accepted trade practice must, of course, be adjudicated by a Bet Din. At times, the practice arises because of provisions of the legal system that are binding upon the society at large. Such laws, in effect, give birth to an accepted practice which, in turn, becomes an implied condition of contracts executed in jurisdictions in which those laws are binding.",
+ "Minhag ha-soḥarim are a case in point. Such laws may or may not be independently binding as social welfare legislation by virtue of dina de-malkhuta dina, the law of the land is the law. Resolution of that question is contingent upon careful analysis of the various theories propounded by early-day authorities regarding the basis and parameters of the halakhic principle of dina de-malkhuta. Such an analysis is beyond the scope of this undertaking. But, even if rent control laws are not halakhically binding per se as dina de-malkhuta, many contemporary authorities have maintained that, since those laws are generally accepted, they become implied conditions of all rental agreements. Regardless of whether rent control provisions are binding as dina de-malkhuta or as minhag ha-soḥarim, any dispute between a landlord and a tenant must be resolved before a Bet Din. Despite the fact that in its salient features it is secular law that is administered, the law is binding upon Jews because dina de-malkhuta and minhag ha-soḥarim are Jewish law principles. The prohibition against recourse to arka'ot shel akum is not waived on account of the non-Jewish provenance of the particular law or regulation to be applied. Accordingly, any disputes between the contracting parties must be resolved by a Bet Din. To be sure, the judges sitting on the Bet Din may themselves not be familiar with rent control law since it is entirely secular in nature. Nor, for that matter, since they are not tradesmen, are they likely to be familiar with other matters of common trade practice. Matters of common trade practice can be established by a Bet Din by inviting expert testimony, i.e., the testimony of tradesmen who are knowledgeable regarding the customs of their trade. The provisions of rent control law can similarly be made known to the Bet Din by means of the testimony of impartial attorneys or academics who are expert in that area of law.",
+ "2. Election Law",
+ "Less obvious is a situation involving laws governing the electoral process. An incident was widely related a number of years ago involving a primary election in a district having a large Jewish electorate. Both the incumbent and his challenger were observant Jews. The incumbent alleged that the petitions filed on behalf of his opponent were defective by virtue of not being in conformity with one or another of the Byzantine-like provisions of the election law of the State of New York. Accordingly, the incumbent brought suit in New York Supreme Court to have the name of his opponent removed from the ballot. To his surprise, he found himself the recipient of a summons to appear before a Bet Din. His opponent alleged that, as observant Jews, they were duty-bound to adjudicate the dispute before a Bet Din, rather than before a state court, despite the fact that the issue at stake involved a question of conformity with state law. The issue was indeed adversarial and involved the right to contend for a remunerative position. Whether or not the challenger's halakhic contention has merit is itself a matter to be determined by rabbinic decisors, as is the issue of whether the Bet Din, assuming it has jurisdiction insofar as Jewish law is concerned, must apply state law in issuing a judgment or whether Halakhah recognizes other principles as governing even in a contest involving a right born of the statutes of a secular state.",
+ "3. Custody Disputes",
+ "There are indeed matters with regard to which the American legal system does not recognize the authority of a Bet Din even when the concerned parties submit to its jurisdiction. The status of a Bet Din in the eyes of American law is that of a panel of arbitrators but there are some matters that, in the eyes of the American legal system, cannot be submitted to binding arbitration. Child custody is probably the best example of a matter that cannot be submitted to binding arbitration. The underlying reason is the parens patriae doctrine, i.e., the notion that the State is the ultimate guardian of each of its citizens and thus it is the State, and the State alone, that must determine what is in the best interests of the child.",
+ "Nevertheless, such matters do fall within the jurisdiction of the Bet Din. Jewish law enunciates a principle very similar to the parens patriae doctrine in its principle that the Bet Din is \"the father of orphans\" (avihem shel yetomim). The Bet Din also makes custody awards on the basis of the best interests of the child, albeit the weight assigned by a Bet Din to a particular factor may not be identical to that assigned by a secular court. Custody also involves an adversarial dispute since it involves the privilege and mizvah of nurturing and rearing a child. In that sense, the underlying issue is similar to that involved, for example, in a dispute regarding a ḥazakah, or established prerogative, pertaining to sounding the shofar in a synagogue on Rosh ha-Shanah or of serving as reader of the prayer service. Such matters are certainly within the competence of a Bet Din and dare not be brought before gentile courts.",
+ "The fact that the secular legal system does not recognize the authority of arbitrators with regard to child custody is of no material significance insofar as the prohibition of having recourse to arka'ot shel akum is concerned. The courts intervene in such matters only when a dispute is brought before them. Other than in egregious cases in which a child is taken from a parent because he or she is found to be incompetent to care for the child, the law does not interfere with parental decisions, including decisions pertaining to custody. Thus, as long as both parents continue to respect the decision of the Bet Din, the courts will not intrude. A dissatisfied parent has the legal right to attempt to overturn the decision of the Bet Din by bringing the matter to court. But he or she does not have the halakhic right to do so. The prohibition \" 'Before them'—but not before gentile courts\" remains in effect.",
+ "4. Insurance Indemnification",
+ "A serious question involving the prohibition against having recourse to gentile courts arises in situations in which the defendant has insurance coverage but the insurance company refuses to settle the claim. For example, drivers and owners of vehicles involved in automobile accidents are generally covered by insurance for both personal and property damage. In conformity with the terms of its contract, the insurance company is bound to indemnify the insured up to a maximum amount, but only if the insured is found to be legally liable. The insurance company may agree to a settlement in order to avoid litigation or it may refuse compensation unless and until the plaintiff secures a judgment in a court of law. Jewish litigants who regard themselves to be bound by the dictates of Shulḥan Arukh would, of course, wish to have a Bet Din determine liability. Unfortunately, however, insurance policies do not provide for recourse to a Bet Din and do not grant the insured the prerogative of submitting the matter to an arbitration panel. Thus, the insurance company will not be bound by a decision of a Bet Din or of an arbitration panel. The defendant who is ordered to pay damages by a Bet Din will have no recourse against his insurance carrier.",
+ "Despite the fact that it is the tortfeasor rather than the insurance company who is the named defendant and that any mention of insurance coverage in the courtroom may be grounds for a mistrial, the real party in interest is the insurance company. Nevertheless, it is common knowledge that most people carry insurance for claims of such nature. Since it is readily perceived that the cause of action is really against a non-Jewish insurance company that will not appear before a Bet Din, it would appear that judicial proceedings in such circumstances do not constitute either a renunciation of the Law of Moses or voluntary aggrandizement of a non-halakhic legal system and hence such suits are not forbidden. To employ Rambam's phraseology and its underlying theory, this, too, is an example of a necessary measure designed to \"rescue\" funds that would not otherwise be forthcoming. Of course, if the amount awarded by the jury or by the court is in excess of the amount covered by insurance, recovery of the excess from the defendant's personal funds is not permissible other than pursuant to a decision of a Bet Din that such an award is consistent with the provisions of Jewish law. A litigant who accepts an award of a civil court to which he is not entitled under Jewish law is guilty of theft and becomes disqualified from serving as a witness.",
+ "5. Non-Observant Defendants",
+ "The ostensive need for leave from a Bet Din in the form of a siruv presents a formidable hurdle in instituting legal proceedings against fellow Jews who are both unknowledgeable and uncaring with regard to the halakhic obligation to adjudicate disputes before a Bet Din. The prohibition against having recourse to arka'ot shel akum applies equally with regard to observant and non-observant defendants. However, in the case of the totally non-observant, it is more than probable that they will spurn any attempt to bring the matter to a rabbinic tribunal.",
+ "In theory a Jew who wishes to initiate proceedings even against a gentile is obligated to bring suit before a Bet Din. That point is stated explicitly by Tashbaz, Hut ha-Meshulash, III, no. 6 and by Divrei Ge'onim 52:15 in the name of R. Aḥa'i Ga'on, She'iltot, Parashat Mishpatim and Parashat Shofetim. Yet, in practice, no Bet Din issues a summons directing a non-Jew to appear before it for purposes of litigation. Divrei Ge'onim justifies failure to summon gentiles to appear before a Bet Din by declaring that gentiles \"do not hearken to our law\" and hence a Jew is permitted to have recourse to a gentile court in order to rescue his property but adds that when such is not the case and, a fortiori, when the gentile himself expresses a desire for the dispute to be resolved by a Bet Din \"it is elementary that [a Jew] is forbidden to bring him before gentile courts.\" If so, why in the case of a Jewish defendant is it necessary to obtain prior leave from a Bet Din whereas in the case of a non-Jew the established practice confirms that no such leave is necessary?",
+ "Netivot ha-Mishpat 26:3 declares that a Bet Din may permit a Jewish plaintiff to apply for relief in a gentile court only in situations in which it is clear to the Bet Din beyond doubt that the Jew is halakhically entitled to the relief for which he prays. Analyzing that comment, Orḥot ha-Mishpatim raises a rather obvious concern. What should a Jew do in such a situation? The defendant refuses to appear before the Bet Din, but the Bet Din declines to grant leave to apply to a civil court. In such a situation, must the plaintiff bear his loss with equanimity? Orḥot ha-Mishpatim advances the thesis that, insofar as biblical law is concerned, there is no prohibition against having immediate recourse to a gentile court against a \"powerful\" (ilem) defendant who is known to flaunt the authority of rabbinic judges. As authority for that position, Orḥot ha-Mishpatim cites Yam shel Shlomoh, Bava Kamma 8:65, who states that in such cases \"it is an edict dictated by the practice of Jewish courts not to litigate before gentile courts other than upon receipt of permission.\" Orḥot ha-Mishpatim adds that the purpose of obtaining leave from a Bet Din is to be able to recover legal expenses in accordance with Jewish law, i.e., such expenses are recoverable in Jewish law only if they are incurred with explicit permission of a Bet Din. Thus, even according to Netivot ha-Mishpat, a Jew may have recourse against a recalcitrant defendant in arka'ot shel akum whenever he himself is certain of the validity of his claim in Jewish law but he will not be entitled to collect the expenses of such litigation unless he is able to obtain prior leave of the Bet Din. Kesef ha-Kodoshim, Hoshen Mishpat 26:2, goes somewhat beyond this position in declaring that, with regard to a person known to have no regard for the authority of a Bet Din, there is, in effect, constructive leave to apply to gentile courts. See also R. David Letier, Teshuvot Bet David, no. 141.",
+ "As stated by Orḥot ha-Mishpatim, it is certainly to be presumed that a non-Jew will not accept the authority of a Bet Din. Hence, according to Yam shel Shlomoh, there exists no biblical requirement to summon the non-Jew to appear before a rabbinic tribunal. Nor is there any evidence that rabbinic enactments requiring prior leave from a Bet Din extend to suits against non-Jews. Since the summons of a Bet Din would invariably be ignored by a gentile, a siruv would be a mere formality and would serve no useful purpose. Accordingly, no siruv is needed in order to institute proceedings against a non-Jew in secular courts. If so, it may be argued that, since the non-observant would similarly routinely ignore the summons issued by a Bet Din, no purpose would have been served by including cases against totally non-observant individuals in such rabbinic enactments.",
+ "Although application for a formal siruv in cases involving a completely unobservant defendant may be unnecessary, nevertheless, in an age in which alternative dispute resolution is encouraged and in which many non-observant Jews are open to the heritage of Judaism, information concerning the function and availability of Batei Din should definitely be communicated to the defendant together with an offer to submit to binding arbitration before a Bet Din. Many litigants may not be willing to accept adjudication by a Bet Din but may be receptive to arbitration before a secular arbitration panel. In the opinion of this writer, in such circumstances, acceptance of secular arbitration by the plaintiff is certainly praiseworthy but is not mandatory if the plaintiff believes that a court is more likely to grant an award in, or closer to, the amount he is entitled to recover according to Jewish law."
+ ],
+ "Chapter II Rabbinic Confidentiality": [
+ "\"The secret of God is with those who fear Him\" (Psalms 25:14). Said Rabbi Simeon: There is no secrecy for heavenly beings, but for terrestrial beings there is secrecy.",
+ "MIDRASH SHOHAR TOV 25:14",
+ "I. The Recent Judicial Proceeding",
+ "\"Can you trust your rabbi?\" is the question raised in the minds of many in the wake of a high profile New York law case. A late 1998 decision of a Justice of the New York Supreme Court holding one rabbi liable for damages resulting from the violation of the confidence of a congregant and ordering an evidentiary hearing for clarification of certain disputed facts in the case of a second rabbi has caused consternation in diverse quarters.",
+ "Inaccurate and provocative media reports further heightened interest in the case. Many, including the judge, were shocked not so much at the breach of confidence itself but at the argument of the defense that the defendants' actions, in the case in question, were mandated by Jewish law. Those more familiar with the applicable provisions of Jewish law were equally shocked not so much at the court's headlong thrust into a quagmire of factual, legal and constitutional issues as by its wholly improper and injudicious excoriation of the defendants' invocation of \"the protection of the Torah\" in defense of their conduct. That conduct, which the defendants unquestionably believe to be not only permitted but mandated by Jewish law, is described by the Court as conduct that \"so transcends the bounds of decency as to be regarded as both intolerable and atrocious.\" Remarkably, not a scintilla of proof was adduced charging the defendants either with misrepresentation of Jewish law or challenging their good faith in its application.",
+ "In substituting its own unqualified (mis)understanding of Jewish law for that of two erudite and respected rabbis, whose stature within their community was acknowledged by the Court itself, the Court has engaged in as blatant an example of judicial chutzpah as has been seen in recent years. In allowing such a determination to color its decision the Court exposes itself to a charge of breaching the wall of separation between Church and State. Moreover, in interpreting the statute in question as requiring clergymen to govern their professional conduct in a manner they find to be religiously offensive the Court has probably violated the right of free exercise of religion guaranteed by the First Amendment.",
+ "Together with those of many other states, the laws of the State of New York provide that communications to a clergyman are privileged in the sense that the clergyman cannot be required to \"disclose a confession or confidence made to him in his professional character as spiritual advisor unless authorized to do so by the communicant.\" This provision, incorporated in §4505 of the CPLR, is included among statutes regulating admissibility of evidence in legal proceedings, thereby making communications to a clergyman privileged much in the same manner that interspousal communications, communications by a client to his or her attorney and by a patient to his or her physician are privileged. The purpose of granting legal privilege to such communications is to encourage free and open discourse between the individuals to whom the privilege is extended. The New York statute provides that the privilege can be waived only by the person confiding in the clergyman.",
+ "On its surface the statute does no more than restrict the admissibility of testimony of the clergyman in a court of law. Nevertheless, in a decision issued on November 18, 1998 in C. L. v. Rabbi Tzvi Flaum and Rabbi David Weinberger and reissued with revisions on March 4, 1999, Justice David Goldstein, sitting in the New York Supreme Court in Queens County, ruled that a woman whose confidence had allegedly been breached by the named clergymen was entitled to sue for damages.",
+ "The woman, who had been separated from her husband, was involved in a dispute over which parent should be awarded custody of the couple's four daughters. The husband submitted separate affidavits signed by the two rabbis in which they expressed the opinion that the spiritual welfare and general well-being of the children would best be preserved by awarding custody to the father. In support of that conclusion the rabbis cited various facts concerning the mother's religious behavior and comportment that she had disclosed to them, allegedly in confidence. This information was incorporated in a sealed matrimonial file and disclosed only to the Court having jurisdiction over the custody proceeding. Despite those facts, Justice Goldstein, in a separate action, found that, in submitting their affidavits and in discussing the matter with her husband, the rabbis had breached a fiduciary duty of confidentiality owed to the plaintiff.",
+ "The latter point, i.e., the determination that discussion of the matter with the husband, as distinct from submission of an affidavit in connection with the custody proceedings, constitutes a breach of a duty of confidentiality is puzzling since the only substantive confidential information disclosed to the rabbis by Mrs. L. was that she had ceased the practice of monthly immersion in a ritualarium in order to deny her husband consortium. Obviously, that goal, as announced by Mrs. L. herself, could not be achieved without the husband's awareness of his wife's failure to attend the ritualarium. It is difficult to understand how disclosure of information to an individual to whom the confider had already divulged the selfsame information constitutes a breach of confidence. It is even more difficult to understand how such disclosure could cause further damage that might give rise to a cause of action.",
+ "With regard to the alleged breach of a fiduciary duty in submitting the affidavits, the Court ruled not only that the plaintiff is entitled to recover damages but that the action of the rabbis",
+ "was not only improper, it was outrageous and most offensive, especially considering the status and stature of these defendants within the community, a standard which they readily abdicated here. From what was done, it is palpably clear why this determination is one of the apparent first impression—no member of the clergy … would dare breach the sanctity of his or her office to make public the type of confidential, private disclosures at issue in this case….",
+ "Moreover, to violate such basic rights under the guise of religious necessity, conviction or the protection of the Torah, is not only wrong, it is outrageous….",
+ "…Bearing in mind the sanctity to be accorded such communications between clergy and penitent, and the necessity for confidentiality in conjunction with such spiritual counseling, without the fear of any reprisal or disclosure, it is both outrageous and intolerable that such communications would be revealed, even where, as here, this occurs in part in the context of a judicial proceeding. In my view, the conduct so transcends the bounds of decency as to be regarded as both intolerable and atrocious….",
+ "The Court's deprecatory reference to \"the guise of religious necessity, conviction\" and \"the protection of the Torah\" betrays a profound ignorance of Jewish law. Far from being wrong, much less outrageous, the action of the rabbis (who together with the husband's attorney believed both that their affidavits were admissible as evidence and that their testimony was likely to be persuasive) was both laudable and halakhically mandated.",
+ "II. Confidentiality in Jewish Law",
+ "1. The Sources and Nature of the Obligation",
+ "Judaism does not recognize a particular fiduciary obligation of confidentiality in association with any professional relationship. Thus, for Judaism, there is no specific physician-patient, attorney-client or clergyman-penitent \"privilege.\" But, at the same time, Judaism binds each and every one of its adherents, laymen as well as professionals, by an obligation of confidentiality far broader than that posited by any other legal, religious or moral system. Nevertheless, the privilege is neither all-encompassing in scope nor, when it does exist, is it absolute in nature.",
+ "a) Leviticus 19:16",
+ "Divulging personal information concerning another person is prohibited by Jewish law even when that information is not received in confidence. That prohibition is derived from the biblical verse \"You shall not go as a bearer of tales among your people\" (Leviticus 19:16). As formulated by Rambam, Mishneh Torah, Hilkhot De'ot 7:2: \"Who is a talebearer? One who carries reports and goes from one person to another and says, 'So-and-so said this' or 'Such and such have I heard about so-and-so.' Even if he tells the truth, [the talebearer] destroys the world.\" Talebearing activity is forbidden even when it is not accompanied by malicious intent and even if the information is not derogatory in nature. That even non-malicious and non-derogatory talebearing is encompassed within the ambit of the prohibition is evident from the immediately following statement of Rambam: \"There is a much more grievous sin than this that is included in their negative prohibition and that is 'evil speech' (lashon ha-ra), i.e., speaking derogatorily of one's fellow even though one speaks the truth.\" It is clear that, the phrase \"such and such have I heard about so-and-so\" does not refer to information divulged by \"so-and-so\" about himself whether in confidence or otherwise; the phrase connotes information communicated by a third party. Although disclosure of information revealed by a person concerning himself is certainly subsumed within the prohibition, Rambam's ruling makes it quite clear that disclosure is prohibited even though no breach of confidence is involved.",
+ "Disclosure of a communication of non-personal information not within the public domain is also prohibited by Judaism unless prior permission for such disclosure has explicitly been granted. Thus, in effect, all communications are deemed confidential and hence privileged unless the privilege is waived. Moreover, with regard to derogatory personal information, a waiver does not constitute carte blanche for indiscriminate dissemination of such information. The privilege, it should be noted, even if not subject to waiver, is in the nature of a general right of privacy rather than an exclusion from admissible evidence in legal proceedings. Privacy does not serve as a barrier to judicial inquiry. Nevertheless, in most circumstances, such communications would not be admissible as evidence on the basis of the hearsay rule, which in Jewish law is far broader in its exclusions than is the case in other legal systems.",
+ "b) Leviticus 1:1",
+ "The prohibition against divulging a non-personal confidential communication is formulated by the Gemara, Yoma 4b: \"Whence is it derived that [if] one relates something to one's fellow [the latter is commanded], 'Thou shalt not tell' until [the former] tells him 'Go tell'? For it is said, 'And the Lord spoke to him from the tent of meeting l'emor' \" (Leviticus 1:1). Rashi understands the prohibition to be based upon talmudic exegesis interpreting the word \"l'emor,\" which is spelled lamed, alef, mem, resh, as a contraction of two words \"lo emor—do not say.\" Thus, the written word vocalized in two alternative ways literally constitutes a double entendre: \"to say\" and \"do not say.\" As explained by Or ha-Hayyim, Exodus 25:2, the initial phrase of the immediately following sentence beginning \"Speak to the children of Israel\" clearly places upon Moses an affirmative obligation to repeat what he has been told. Taken together, the two sentences declare, in effect, that Moses may not speak other than when expressly directed or granted permission to speak. As formulated by the Gemara, Moses is admonished \"Do not tell!\" unless and until he is told \"Go tell!\" Prior to their communication to Moses, the contents of revelation were reserved to the Deity and, accordingly, the contents of revelation would have been held inviolate by Moses on the basis of the injunction \"Do not say\" had he not been commanded explicitly \"l'emor,\" to speak and disclose that information to Israel. Interpreting the statement of the Gemara in a manner consistent with that of Rashi, Sefer Mizvot Gadol, lo ta'aseh, no. 9, regards violation of this injunction as transgression of a biblical commandment. This talmudic statement is cited as normative by Magen Avraham, Oraḥ Hayyim 156:2, and serves to establish a formal obligation to regard the communication of any personal or proprietary information as confidential unless permission for disclosure is explicitly granted.",
+ "Both Maharsha, ad locum, and R. Baruch ha-Levi Epstein, Torah Temimmah, Leviticus 1:1, offer an interpretation of the derivation that is less elegant but far simpler than that advanced by Rashi. According to those scholars the prohibition is predicated upon the plain meaning of the word \"l'emor.\" The term \"l'emor\" is rendered in English translations as \"saying.\" That translation portrays the entire sentence, \"And God spoke to Moses saying,\" as a preferatory comment conveying the notion that the ensuing passages constitute the content of what was \"said\" to Moses. In effect, the sentence is rendered as a declaration indicating that what follows constitutes the content of God's communication to Moses. The translation of \"l'emor\" as \"saying,\" although it serves to make the sentence read smoothly in the vernacular, is contrary to the plain meaning of the text and is probably incorrect. The initial letter lamed is a prefix meaning \"to\" and hence the word \"l'emor\" should properly be understood as a contraction of \"le-emor\" and translated as \"to say,\" i.e., God commanded Moses \"to say\" the words of the verses that follow. Accordingly, the import of the sentence is not a declaration to the effect that the subsequently recorded verses were communicated to Moses, but that Moses was commanded to declare those verses to the children of Israel. The appropriate, albeit infelicitous, translation would be: \"And God spoke to Moses to say.\" However, although linguistically accurate, this rendition of the passage seems to render the entire verse redundant. The very next verse begins with the phrase \"Speak to the children of Israel and say to them.\" That phrase is synonymous in meaning with \"l'emor\" and renders \"l'emor\" superfluous. The plain inference, comments Maharsha, is that Moses would not have had the right to transmit the divine communication unless given express permission by God to do so. Hence that directive is recorded in order to teach that, absent such a waiver, all communications are to be regarded as confidential.",
+ "Other early-day scholars find the obligation to regard all personal or proprietary communications as privileged to be reflected in yet another verse. R. Menahem ha-Me'iri, in his commentary on Yoma 4b, and R. Levi ben Gershon (Ralbag), in his commentary on the scriptural passage, understand Proverbs 11:13 as reflecting the principle enunciated by the Gemara, Yoma 4b. Proverbs 11:13 is usually translated as \"He that goes about as a talebearer reveals secrets, but he who is of faithful spirit conceals a matter.\" Me'iri, however, renders the first half of the verse as \"He who reveals a secret is a talebearer\" while both Me'iri and Ralbag understand the second part of the verse as referring to a person who \"conceals a matter\" even though it has not been divulged to him as a secret.",
+ "2. Limitations upon the Obligation",
+ "It should be noted that there is no \"statute of limitations\" or time period subsequent to which the obligation of confidentiality expires. The Gemara, Sanhedrin 31a, reports an incident involving a student who revealed a matter he had heard in the House of Study twenty-two years after receiving the information. R. Ammi expelled the student from the Academy declaring, \"This student reveals secrets!\"",
+ "However, the privileged nature of a private communication is by no means absolute. Respect for privacy and the inviolability of a confidential communication certainly do not take precedence over preservation and protection of the lives and safety of others. The overriding obligation to protect the lives of others is of sufficient weight to oblige the confidant to take whatever measures may be necessary to eliminate the danger. An oath not to divulge such information when required by Halakhah to do so is regarded as an oath to transgress a commandment and is invalid. Thus, for example, a physician must inform the motor vehicle bureau that his patient is an epileptic and should be denied a driver's license. The obligation to violate the confidential nature of information entrusted to the physician in such situations is included within the \"law of the pursuer.\" A person engaged in an act that will lead to the death of another must be prevented from causing such death even if the consequences of the act are entirely unintended. R. Elijah of Vilna, Bi'ur ha-Gra, Hoshen Mishpat 425:10, states explicitly that the \"law of the pursuer\" applies even in the absence of intention to do harm.",
+ "The obligation to divulge information that may preserve a life is not limited to situations involving a \"pursuer\" but extends to all situations in which lack of such information would lead to possible loss of life. Apart from the general principle that preservation of life takes precedence over other religious and personal obligations, failure to disclose such information would constitute a violation of \"You shall not stand idly by the blood of your fellow\" (Leviticus 19:16).",
+ "Concern for preservation of life is by no means the sole legitimate motive for violation of confidentiality. Even information that is derogatory and personal, and hence subsumed within the prohibition against gossip mongering, must be disclosed if it is necessary to do so in order to prevent serious harm. Rambam, Mishneh Torah, Hilkhot Rozeaḥ 1:14, followed by Shulḥan Arukh, Hoshen Mishpat 426:1, rules that if an individual \"hears that gentiles or apostates are plotting misfortune\" for another person, he must bring the matter to that person's attention. Failure to do so, declares Rambam, constitutes a violation of the commandment \"You shall not stand idly by the blood of your fellow.\" The \"misfortune\" of which Rambam speaks includes financial loss as well as bodily harm. This is evident from Rambam's comments in his Sefer ha-Mizvot, lo ta'aseh, no. 297, in which he indicates that the commandment applies in all situations in which an individual is \"in danger of death or loss.\" The \"loss\" to which Rambam refers is loss of money or profit as reflected in the ensuing discussion in which Rambam cites a statement of the Sifra, Leviticus 19:16, declaring that withholding of testimony in a financial dispute constitutes a violation of the commandment \"You shall not stand idly by the blood of your fellow.\"",
+ "It is instructive to note that the prohibition against talemongering and the obligation to rescue one's fellow from physical or financial harm are joined in a single biblical verse: \"You shall not go as a talebearer among your people; nor shall you stand idly by the blood of your fellow.\" The verse should be understood as prohibiting dissemination of derogatory information but not at the cost of standing idly by while one's fellow suffers harm.",
+ "Hafez Hayyim, Be'er Mayim Hayyim, Hilkhot Rekhilut 9:1, cites additional sources that reflect the same principle. Jewish law provides that adverse possession of land for a period of three years is prima facia evidence substantiating a claim of purchase. A person who has been in open and notorious occupancy of a field for that period of time need no longer preserve a deed of purchase in order to validate a claim of title. However, protest by the person previously in possession of the property that such occupancy constitutes an unlawful trespass is sufficient to negate the claim of the occupant with the result that, unless the occupant can produce a deed, title is awarded to the prior owner. Such protest must be registered in the presence of witnesses but need not necessarily be expressed in the presence of the occupant. Rashbam and Tosafot, Bava Batra 39b, indicate that individuals hearing such a protest are duty bound to inform the occupant of what they have heard. They are clearly \"talebearing\" in reporting to the person in possession that he has been branded a trespasser and a thief by the person lodging the protest. The witnesses, as well as others to whom they reveal the incident, are nevertheless required to convey that information so that the person in possession, if he is indeed the rightful owner, will exercise vigilance in preserving his deed. It is the concern for averting financial loss that serves as sanction for an otherwise impermissible disclosure of information. Sefer ha-Hinnukh, no. 247, makes a more general statement in declaring that when the intent is to \"remove harm and to still the quarrel\" the prohibition against gossip mongering does not pertain.",
+ "The classic work dealing with Jewish law as it applies to slander, defamation of character and talebearing is Hafez Hayyim, authored by R. Israel Meir Kagan. In Hilkhot Rekhilut, klal 9, Hafez Hayyim emphasizes that disclosure of derogatory information, even when the information is not received in a confidential manner, dare not be lightly undertaken. Hafez Hayyim rules that, even when designed to prevent harm or loss, disclosure is justified only when a series of conditions are met: 1) Disclosure may be made only pursuant to careful deliberation in establishing that potential for harm really exists. 2) The information disclosed should be presented accurately without embellishment or exaggeration. 3) The sole motivation prompting disclosure must be the desire to prevent harm. No disclosure may be made when prompted, even in part, by personal animosity. 4) The benefit of the disclosure cannot be achieved in any other way. 5) The disclosure will not lead to any harm or loss to the person who is the subject of the information disclosed other than the liability that would be imposed upon that person by a Bet Din on the basis of the facts and the available evidence.",
+ "R. Ya'akov Breisch, Teshuvot Helkat Ya'akov, III, no. 136, argues that, under such circumstances, disclosure is mandated, at least according to some authorities, by virtue of another commandment as well. \"Thou shalt not place a stumbling block before the blind\" (Leviticus 19:14) is understood in rabbinic sources as prohibiting an individual from causing another person to \"stumble\" by committing a transgression and also as an admonition against giving detrimental advice in mundane matters. Rambam, Mishneh Torah, Hilkhot Rozeaḥ 12:4, extends the concept not only to providing direct aid in committing a sin but also to \"strengthening the hands of transgressors.\" R. Judah Rozanes, Mishneh le-Melekh, Hilkhot Kelayim 1:6, maintains that even a passive stance may constitute \"strengthening the hands of transgressors\" and hence is forbidden by Rambam as placing a \"stumbling block before the blind.\" Mishneh le-Melekh employs this thesis in explaining an otherwise difficult ruling of Rambam. Rambam rules that a Jew may not permit a gentile to make use of a tree belonging to a Jew for purposes of grafting a branch of one species upon a tree of another species. Even passive acquiescence constitutes a violation of the prohibition against \"placing a stumbling block.\" Helkat Ya'akov argues that since not only assistance in transgression but also offering poor counsel is prohibited by this commandment, \"passive\" counsel that is deleterious in nature is also forbidden. Advice designed to cause unhappiness or financial loss is clearly forbidden. Hence, according to Mishneh le-Melekh, failure to provide information and advice for the purpose of averting such unfortunate results is also a form of \"placing a stumbling block before the blind.\" Accordingly, concludes Helkat Ya'akov, a person is not at all justified in maintaining his own counsel in circumstances in which circumspection would result in grief or financial loss to others.",
+ "Obligations arising from the commandment not to stand idly by the blood of one's fellow and the prohibition against placing a stumbling block before the blind obligate a person to prevent harm or loss; they do not give rise to an affirmative obligation to maximize the profit or enhance the material well-being of one's fellow. Accordingly, Hafez Hayyim rules that disclosure of derogatory personal information is mandatory if necessary to prevent loss but makes no such statement with regard to disclosure for the purpose of financial advantage.",
+ "Violation of a confidence that does not involve talebearing but is protected by the prohibition of bal tomar [i.e., lo emor— do not say] may well be a different matter. In an article published in Teḥumin, vol. IV (5743), the late R. Saul Israeli declares that such a confidence may be breached even in order to achieve a financial benefit provided, however, that there will be no resultant harm to the person who has imparted that information. Rabbi Israeli observes that refusing to allow another person to derive benefit from one's property when there is no harm or loss to oneself is decried by the Sages as the \"trait of Sodom.\" Accordingly, in the absence of evidence to the contrary, there is no reason to assume that the party whose confidence is violated would act wickedly in withholding such information. On the contrary, argues Rabbi Israeli, the halakhic principle \"A person is pleased that a mizvah be performed with his property\" serves to establish a constructive waiver of confidentiality.",
+ "It seems to this writer that Rabbi Israeli is correct is stating that non-personal communications may be divulged in such circumstances without prior permission. Moreover, in this writer's opinion, there is talmudic evidence that serves to establish that such information may be divulged for the benefit of another party even over the express objection of the person from whom the information was obtained.",
+ "The Gemara, Avodah Zarah 28a, in recounting a problematic anecdote, reports that R. Yoḥanan once suffered a severe toothache. He received treatment at the hands of a prominent gentile woman on a Thursday and a Friday. R. Yoḥanan declined to visit her on Shabbat because he was occupied with his students and therefore requested instructions so that he might administer the therapy to himself. The woman was reluctant to divulge that information lest it became available to others as well. Accordingly, she demanded that R. Yoḥanan swear an oath not to reveal the information. R. Yoḥanan swore that \"to the God of Israel he would not reveal\" the information and then promptly imparted the information in his Sabbath lecture on the excuse that he did indeed swear not to reveal the information \"to the God of Israel\" but that he reserved the prerogative of revealing the information \"to the people of Israel.\" Addressing the concern raised on account of profanation of the Divine Name involved in this subterfuge, the Gemara responds that immediately upon receiving the information R. Yoḥanan revealed his intention to discuss the matter publicly. Presumably, R. Yoḥanan did so in the context of reproving the woman for attempting to reserve such beneficial therapeutic information for her own exclusive use.",
+ "The Gemara limits its discussion to the problems posed by the oath sworn by R. Yoḥanan not to reveal the information. But, putting aside the strictures imposed by the oath, it is manifestly clear that the woman in question imparted the requisite pharmacological information to R. Yoḥanan in confidence and that she expressly informed him of her desire that this esoteric information remain her secret. The information, to be sure, was not personal and certainly was not pejorative. It was, however, information within the exclusive possession of the woman—not unlike the information conveyed to Moses by God that would perforce have remained a divine secret if not for God's express permission to transmit the information to the people of Israel. The sole but crucial distinction is that the medical information in question was of direct and tangible benefit to R. Yoḥanan's audience and its divulgence did no harm to the woman who entrusted the information to R. Yoḥanan. On the basis of the narrative as it is reported there is every reason to assume that the woman in question did not charge a fee for her medical ministrations and hence suffered no adverse financial effect. Indeed, Leḥem Setarim, one of the classic commentaries on Avodah Zarah, resolves another difficulty unrelated to this discussion with the observation that no compensation was involved because \"since [the woman] was a courtesan she had no need to accept a fee and moreover if [her services were rendered in return] for a fee how is it that she did not wish to disclose what [R. Yoḥanan] must do on Shabbat until he swore?\" Presumably, her motive in refusing to share the information with toothache sufferers was a desire for power or self-aggrandizement, or sheer pettiness. It would seem that this talmudic narrative serves to establish that the proprietary interest with regard to non-personal confidences established by the prohibition of bal tomar need not be respected by a confidant when it is exercised as a \"trait of Sodom.\"",
+ "III. Rabbis and the Clergyman-Penitent Privilege",
+ "The information governed by the prohibition of bal tomar as posited by the Gemara, Yoma 4b, is not at all encompassed within the clergyman-penitent privilege. Accordingly, disclosure of such information as required by Jewish law when necessary for the material benefit of a third party presents no conflict with the requirements of civil law. Communications for which a clergy-penitent privilege may be claimed are virtually always of a nature to which the much more stringent prohibition against talebearing applies. Circumstances in which Jewish law requires a breach of confidence involving such information are quite rare. In general, Jewish law mandates disclosure of confidential information only when necessary to avert significant harm. Even secular law recognizes an exception to the rule of confidentiality when a threat to life or serious physical harm exists. It is little wonder that Jewish law recognizes the selfsame exception when a threat to spiritual welfare exists, as was the case in the matter before the New York court.",
+ "The very fact that the plaintiff has instituted proceedings in a civil court for recovery of damages is itself vindication of the rabbis' judgment. Seeking redress against a fellow Jew in a civil court rather than in a Bet Din is itself a serious breach of Halakhah and departure from the life-style of an observant Jew. As such, the plaintiff's motion betrays a fundamental lack of religious probity.",
+ "The applicable New York statute and the laws of other jurisdictions may well exclude from evidence the testimony of a clergyman even in situations in which Jewish law permits breach of confidentiality. But, even assuming that Justice Goldstein is correct in his view that the statute also creates a fiduciary relationship, the fiduciary relationship of a rabbi to his congregant must, by its very nature, be circumscribed by the provisions of Jewish law. A member of the Jewish faith who seeks the counsel of a rabbi rather than that of a psychologist, social worker or marriage counselor understands quite well that the rabbi's actions will be governed by Jewish law and tradition. The congregant places his faith and trust in the rabbi in anticipation that the rabbi will act in precisely that manner. The uniqueness of a fiduciary relationship under the secular legal system is based upon the concept that it is a relationship predicated upon trust and hence violation of that trust is actionable. If a rabbi is trusted to relate to his congregant on the basis of Jewish law, the rabbi's recognition of the limits that Jewish law places upon confidentiality can hardly be deemed a violation of the fiduciary relationship arising from that confidence. To put the matter quite simply, in situations in which Jewish law requires the rabbi to divulge information, the congregant does not, and should not, have a \"reasonable\" expectation of confidentiality. Accordingly, the courts should recognize an implied waiver of statutory confidentiality in those cases in which disclosure is required by the faith of the confidant.",
+ "Moreover, if a rabbi is bound by a fiduciary duty, his duty is not to his congregant but to a higher authority. The Internal Revenue Service and the Social Security Administration seem to have an intuitive understanding of this point. Although, typically, rabbis are hired by congregations and compensated in the form of a salary, the I.R.S. does not demand that congregations withhold income tax from the salaries of their clergy or file W2 forms on their behalf. Clergymen serving congregations make contributions to the Social Security system as self-employed individuals. In a very real sense, the members of a synagogue may pay the rabbi's salary but he is not their employee; the rabbi is the employee of the Almighty. Certainly, the rabbi's fiduciary obligation is to God, and only through God to the congregant.",
+ "Let it be noted that, as will be discussed later in greater detail, clergy-man-penitent statutes are directly attributable to the burden placed upon a priest by canon law. The Church requires its priests to hold the sanctity of a confession inviolate even upon pain of incarceration or death. In states in which the priest-penitent privilege is not recognized, were a judge to threaten a priest with citation for contempt for refusing to divulge information revealed to him in the confessional, the priest would feel bound to accept imprisonment despite the requirements of a secular legal system. A rabbi, in some limited circumstances, may be equally obligated by his religious convictions to violate a confidence. His recognition of a religious obligation to do so should not give rise to puzzlement any more so than does the priest's refusal to violate the same confidence.",
+ "At the same time a rabbi is under no automatic obligation to reveal that a crime has been committed even if the crime was revealed to him in a context not encompassed within the clergyman-penitent privilege. The obligation to disclose, on the infrequent occasions in which it may exist, is based entirely upon the need to prevent harm and is totally unrelated to society's desire to punish crime. Accordingly, only a well-founded fear of repetition of the criminal act that might be prevented by disclosure of past misdeeds would make such disclosure mandatory.",
+ "An absolute clergyman-penitent privilege, if applied to rabbis, would yield results that no Jew could accept in good conscience. Assume, for example, that a butcher afflicted by pangs of conscience, but not yet willing to mend his ways, confesses to a rabbi that the meat he offers for sale is not kosher. For the rabbi to act as if he has no such knowledge is to make a mockery of his fiduciary responsibilities to his other congregants, not to speak of his own religious duties. The rabbi's position—and responsibilities—are analogous to those of a psychiatrist who discovers that a patient is planning to commit mayhem. The rabbi's obligation to prevent sin is no different from the physician's responsibility to prevent bodily harm.",
+ "In this regard the obligations of a rabbi and a physician are, from a Jewish law perspective, quite similar and, with regard to the obligations of both, the perspective of Judaism is at variance with that of the American legal system. For Judaism, a physician's obligation does not flow from a contractual or fiduciary obligation vis-à-vis his patient; the physician's duty flows from an obligation to heal imposed upon him by the Deity. The selfsame obligation to seek healing and to prolong life are imposed upon the patient as well. The patient in seeking medical care and the physician in providing such ministration are together fulfilling an obligation imposed upon them jointly by the Creator of all life. Accordingly, the physician dare not accede to the wishes, or even to the directives of a patient, when they conflict with his duty to God, for it is to the Deity that he owes an overriding fiduciary duty. A person seeking the services of a religiously observant physician, psychologist, attorney or rabbi should know and respect the moral and professional values of his confidant. Which thief would entrust a policeman with details of a contemplated bank robbery? If a person is so foolhardy as to plan harm to another individual he only compounds such foolhardiness in divulging his intention to any other human being, all the more so to one whose own moral and professional values require disclosure of the confidence. The congregant in seeking counsel and the rabbi in providing guidance are both engaged in the sacred task of discovering and carrying out the will of God. Each owes a duty to God rather than to the other; to the extent that one owes a duty to the other it is because that duty flows from a duty to God.",
+ "It is not at all correct to conclude that rabbis are bound by the decision in C. L. v. Flaum or by §4505 of the CPLR on the grounds of dina de-malkhuta dina (the law of the land is the law). The finding of the Court in C. L. v. Flaum that the rabbis were in breach of a fiduciary obligation does not mean they are in violation of either a criminal or civil statute; it means only that the aggrieved party can sue for damages in a civil court.",
+ "Moreover, not every civil law is binding in religious law as dina de-malkhuta dina. Assuredly, a law requiring violation of a religious precept, even if its purpose is not anti-religious and it is non-discriminatory in nature, e.g., a law requiring all citizens to cast ballots in an election held on Shabbat, is not binding in Halakhah and would require an act of civil disobedience on the part of citizens of the Jewish faith. Similarly, a law requiring a Jew to stand idly by while his fellow goes to his death is, from a religious perspective, null and void. A law that requires a person to remain silent in face of spiritual danger to an innocent victim is entirely unworthy of religious respect, much less of enforcement under pain of religious sanction. The only issue that is germane is the severity of the burden that a Jew is obligated to accept in fulfilling a particular religious obligation. Discussion of the threshold level of civil or criminal sanctions that would excuse a Jew from fulfilment of such an obligation is beyond the scope of this endeavor.",
+ "In this writer's opinion, it is more than likely that the decision in C. L. v. Flaum will be overturned on appeal. However, it is also likely that the issue will become moot before an appeals court rules on the matter. Many, and probably most, matrimonial cases, even when they have become the subject of judicial proceedings, are settled out of court. If that should prove to be the case with regard to the dispute between Dr. and Mrs. L., it may be anticipated that, as part of an eventual settlement, claims against the rabbis will be withdrawn. Although such an outcome would be salutary, it would have the unfortunate concomitant result of allowing Justice Goldstein's decision to stand and to influence the outcome of future cases. The potential for litigation is itself likely to have an unsettling effect upon rabbis.",
+ "IV. Legal Accommodation of Rabbinic Duty",
+ "It is abundantly clear that situations will arise in which, for reasons of conscience, a rabbi will find it impossible to obey the law as announced by the Court in C. L. v. Flaum. If that interpretation of the clergyman-penitent privilege prevails, a solution must be found that will render the statute inapplicable in situations in which it creates a conflict between the law and religious conscience. In assessing the policy considerations auguring for or against a \"religious exemption\" from the clergyman-penitent privilege it is necessary to identify the rationale underlying the privilege and the purpose it is designed to serve.",
+ "The most commonly offered rationale is that the privilege is designed to foster the clergy-penitent relationship much in the same manner as the physician-patient, attorney-client and spousal privileges are designed to foster particular relationships by shielding communications within those relationships. However, although society has a legitimate interest in fostering each of the latter relationships, societal actions designed to foster a clergy-penitent relationship may constitute a violation of the Establishment Clause of the First Amendment. Nevertheless, the underlying rationale can be reformulated in terms of religious accommodation, i.e., not that the privilege has been established to further a societal interest in fostering the clergy-penitent relationship, but that the privilege has been established as a permissible accommodation of the desire of religionists freely to enter into such relationships. As stated by the New York Court of Appeals:",
+ "It is clear that the Legislature by enacting CPLR 4505 and its predecessors responded to the urgent need of people to confide in, without fear of reprisal, those entrusted with the pressing task of offering spiritual guidance so that harmony with one's self and others can be realized.",
+ "Similarly, the U.S. Supreme Court has recognized that \"the priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.\"",
+ "Some commentators have sought to justify evidentiary privileges, including the clergy-penitent privilege, in terms of privacy interest. Although, on the basis of existing case law, it is difficult to argue that the constitutionally protected right of privacy includes the right to confidentiality of private information, the concern for privacy is certainly a legitimate rationale for statutory protection of communications for which secrecy is generally anticipated. The intimate nature of interaction between a clergyman and congregant gives rise to a highly personal and private relationship. If privacy is itself an end, rather than an instrumental means to certain goals, and is also worthy of protection as an end, the clergyman-penitent relationship certainly qualifies as a private relationship.",
+ "A third rationale is accommodation of a need that is intrinsically human rather than religious. Human beings have a psychological need to unburden themselves of flaws and deficiencies of conduct. Reassurance that their behavior is not an aberrant deviation from the norm and/or advice designed to prevent future lapses serve to promote psychological well-being. Accordingly, the religious practice of confession, whether formal or informal, serves a positive cathartic function as part of the process of dealing with feelings of guilt. This rationale for the privilege is reflected in the words of the supreme court in Trammel v. United States: \"The priest-penitent privilege recognizes the human need (emphasis added) to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.\"",
+ "There can, however, be little question that, historically, the privilege was originally designed, not as an accommodation of the religious practice of the confiders, but of the clergy's religious objection to disclosure.",
+ "The legal basis of the priest-penitent privilege is rooted in the Code of Canon Law. Canon 1318 states: \"A confessor who directly violates the Seal of Confession incurs an automatic (latae sententiae) excommunication….\" There is strong evidence that English law recognized and respected the Seal of Confession from the time of the Norman Conquest in 1066 until the English Reformation in the sixteenth century. In the sixteenth century, the Anglican church replaced the Roman Catholic church as the established Church of England. With the passage of time many changes in church practice were introduced, including a dwindling of emphasis upon, and ultimately elimination of, confession. Since confession was no longer necessary and since the Anglican church did not have a requirement of secrecy, clerics were no longer in need of protection of the law. Some contemporary historians are of the opinion that the privilege terminated at the time of the Reformation. However, Wigmore, in his classic treatise on evidence, asserts that the privilege survived until the Restoration. In either event it is abundantly clear that during the seventeenth century the privilege was no longer recognized. Thus, the historical record lends support to the view that the privilege was designed as an accommodation of religious practice and was designed for the protection of the cleric.",
+ "The history of the privilege in this country lends even more support to this understanding of the rationale underlying the privilege. Since the privilege was no longer recognized in England, it was not part of the common law imported to the New World. The first known case involving clergy privilege was People v. Phillips decided by the New York Court of General Sessions in 1813. The case involved Father Kohlmann, a Roman Catholic priest who, after returning stolen goods to their owner, refused, in the course of grand jury proceedings, to identify the person who had delivered the goods to him. In the confessional, the defendant, Daniel Phillips, revealed to his parish priest that he had knowingly received stolen goods. The priest insisted that Phillips return the stolen items. Phillips then brought the stolen goods to Father Kohlmann under cover of confidentiality of the Seal of Confession and the priest returned the items to the rightful owner. Father Kohlmann was subpoenaed to appear before a grand jury to identify those responsible for the crime. In refusing to do so, Father Kohlmann testified:",
+ "… if called upon to testify in quality of a minister of a sacrament, in which my God himself has enjoined on me a perpetual and inviolable secrecy, I must declare to this honorable Court, that I cannot, I must not answer any question that has a bearing upon the restitution in question; and that it would be my duty to prefer instantaneous death or any temporal misfortune, rather than disclose the name of the penitent in question. For, were I to act otherwise, I should become a traitor to my church, to my sacred ministry and to my God. In fine, I should render myself guilty of eternal damnation.",
+ "The court upheld the priest's right not to testify under the right of \"free exercise of religious profession and worship\" guaranteed by the New York constitution adopted in 1777.",
+ "However, four years later in another unreported case, People v. Smith, a different New York court ruled that no such privilege existed for a Protestant minister. The court did not clarify the grounds for the distinction. To be sure, unlike Protestant denominations, the Catholic church requires its adherents to confess sins and binds its priests to secrecy. It would, however, be an error to ignore the impact that Father Kohlmann's impassioned testimony must have had upon the Court. There is every reason to assume that the Court did indeed believe that the priest would have accepted \"instantaneous death or any temporal misfortune\" rather than violate the sanctity of the confessional.",
+ "The specter of a priest languishing in jail because he has been sentenced for criminal contempt is not very pleasant. There is always public sympathy for civil disobedience entered into for ideological reasons rather then for personal profit or benefit. Sympathy for civil disobedience in the name of religious liberty is even greater.",
+ "In seeking to compel the testimony of a Roman Catholic priest, the law faces a no-win situation. The law must recognize that the testimony will simply not be forthcoming. The law then has the option of holding itself up to ignominy in a futile attempt to enforce its dictates or of pretending that no infraction has occurred and allowing the priest to flout the law. Either way the law will not be obeyed and will be held in disrespect. Far wiser to carve out a religious exemption that is perceived as principled, libertarian and respectful of religion. Recognition of a priest-penitent privilege allows the law to escape from between the horns of the dilemma and to preserve both religious freedom and respect for the law.",
+ "Indeed, although often overlooked, the Free Exercise Clause of the First Amendment was rooted, at least in part, on precisely that consideration. The framers of the constitution of the United States made extensive use of the writings of John Locke and his influence upon the First Amendment was most direct. Locke recognized that religious intolerance was inconsistent both with public peace and good government and viewed religious rivalry and intolerance as among the most severe political problems of his day. Civil strife and lawlessness, not to speak of war between nations, were regarded by Locke as the product of religious turmoil. In an essay written in 1689, Locke states: \"It is not diversity of opinion, which cannot be avoided; but the refusal of toleration to those that are of a different opinion, which might have been granted, that have produced all the bustles and wars, that have been in the Christian world, upon account of religion.\" Elsewhere, decrying the futility of religious coercion, Locke writes, \"… let divines preach duty as long as they will, 'twas never known that men lay down quietly under the oppression and submitted their backs to the blows of others, when they thought they had strength enough to defend themselves.\" The way to avoid such strife is by assuring toleration and liberty of religious practice for all. Freedom of religious practice also enables a government to govern effectively. A populace that perceives its religious principles to be thwarted by the government will harbor deep resentment and disrespect for the ruling authority. The government will be deligitimized in the eyes of those whose religious liberties are denied; respect for the government and its laws will be compromised.",
+ "Thus, there might be strong reason to craft a priest-penitent privilege to be granted to Catholic priests but not to other clergy for whom confidentiality does not rise to the level of inviolability. That distinction was intuitively recognized by the New York court. However, the principle of equality in the eyes of the law demands that a privilege granted to some be granted to all. And so, in 1828, the New York legislature enacted the nation's first statute recognizing the clergy privilege. Arguably, the anti-Establishment and Equal Protection clauses of the U.S. Constitution, which are now binding upon the states, would demand no less. In any event, most clergy will not testify concerning confidential communications regardless of whether there is a statutory privilege. Moreover, as one commentator has recently noted:",
+ "If the clergyman believes that he has a duty of confidence that is unwaivable by religious doctrine…. The clergyman will be guided by the tenets of his faith rather than the rules of evidence, and he will risk contempt of court rather than compromise the protection of his ecclesiastic integrity. To compel disclosure would force the clergyman to choose between his religion and the court's wrath. The clergyman will probably be more willing to suffer at the hands of a human judge than at the hand of the Judge of Judges.",
+ "It would be paradoxical in the extreme to apply a privilege designed to accommodate religious conscience and practice in a situation in which it would have precisely the opposite effect. Forcing a clergyman to remain silent when his religious conscience demands that he speak out is no less a violation of religious liberty than is coercion in forcing him to violate the Seal of Confession.",
+ "If the clergy privilege is designed to prevent the disrespect for law that would flow from inevitable disobedience to the demand for testimony, it would be anomalous to generate the identical disrespect for law that would arise from religiously mandated disobedience of a demand for non-disclosure. An attempt to seal the clergyman's lips upon threat of either criminal or civil sanctions when he believes that the tenets of his faith require that he disclose information imparted to him in confidence is likely to be frustrated by the clergyman's perceived duty to a higher authority. The inevitable result will be lessening of respect for temporal law.",
+ "Memories of religious oppression of Jews by government officials under color of law have not yet receded from the collective memory of the Jewish community. Lack of respect, not only for discriminatory laws and oppressive regimes, but for government and civil law in general, persists in the psyche of many of those who experienced discrimination and religious persecution in the past. Scandalous events, of which we have witnessed far too many, serve to underscore how pernicious and infectious such attitudes can be. Forcing rabbis to become lawbreakers in violating the clergyman-penitent privilege when Jewish law demands that they do so is inimical both to the interests of the Jewish community and to the interests of society at large. Prudence demands that citizens not be subjected to crises of conscience that will inevitably result in erosion of respect for the law.",
+ "V. A Proposed Remedy",
+ "There is, however, a relatively simple legislative solution that would both preserve the benefits of the privilege and accommodate free exercise concerns. The clergy privilege is currently recognized in each of the states, the District of Columbia and in federal courts. At present, in New York, the privilege is held by the communicant, i.e., only the congregant can waive the privilege and authorize testimony by the clergyman. In other states, e.g., Illinois, Ohio, Maryland and Virginia, the privilege is held by the clergyman. In those states, although the clergyman cannot be compelled to testify, he may choose to voluntarily disclose the content of the communication. Accordingly, the religious concerns of the Jewish community would best be served if states in which the privilege is held by the penitent, including inter alia, Connecticut, Massachusetts, Michigan and Ohio, as well as New York, were to amend their codification of the privilege and stipulate that it may be waived by the clergyman. The result would also conform with the original intent and purpose of the privilege which was designed not so much to encourage free and open communication between clergyman and congregant as it was to protect the religious liberty of priests and penitents."
+ ],
+ "Chapter III Mizvot in the Polar Regions and in Earth Orbit": [
+ "\"Who appointed the moon for seasons\" (Psalms 104:19). R. Yoḥanan commented: The orb of the sun alone was created to give light. If so, why was the moon created? \"For seasons\": in order to sanctify new moons and years thereby. R. Shila of Kefar Temarta said in R. Yoẕanan's name: Yet even so, \"the sun knows its coming\" (Psalms 104:19): from the sun one knows the [month's] coming, for we count the beginning of the month only from sunset.",
+ "BERESHIT RABBAH 6:1",
+ "I. The Problem",
+ "Some time during the early period of space exploration, this writer was present at a gathering at which Milton Himmelfarb delivered a talk on the state of the Jewish community. After pointing out that Jews had achieved acceptance, and indeed prominence, in the professions, public service, finance etc., he digressed to note that there had been no Jewish astronauts. To explain that exception to the already well-established norm, Himmelfarb lapsed into Yiddish in explaining that no Jew wished to become a pioneer in space travel: \"Dort ken men doch derharget veren—A person could get killed out there!\" Afterward, this writer commented, only partially tongue in cheek, that Jews perforce abjure space travel because of a quandary with regard to the proper time for prayer and because of confusion with regard to observance of Shabbat.",
+ "Although Himmelfarb's comment was ominously prescient, with regard to Jews choosing space travel as a profession, time has proved both of us to have been wrong. In the ensuing years there have been a significant number of Jewish astronauts. The first was Dr. Judith Resnick who flew on the maiden voyage of Discovery in 1984 and who was aboard the ill-fated Challenger in which she perished with the rest of the crew shortly after takeoff. At the time of her planned flight there were reports, perhaps apocryphal, that she had expressed curiosity with regard to determining the proper time for kindling Sabbath candles. Later, for some reason, another Jewish astronaut, Scott Horowitz, took with him an artifact described as a \"space Torah\" and subsequently presented that memento to a temple in Houston. David Wolf flew on three shuttle flights and spent four months, including Chanukah, on the Russian space station Mir. Although kindling a menorah would have been dangerous in the oxygen-rich atmosphere of the space station, he did spin a dreidel which Wolf claims he was able to spin in zero gravity for an hour and a half on a single twirl.",
+ "Most recently, in January of 2003, after repeated postponements, Colonel Ilan Ramon, the first Israeli astronaut, joined a crew of NASA astronauts aboard the space shuttle Columbia on a mission that ended in tragedy sixteen days later on February 1st. Kosher food of a type that can be reconstituted in space was prepared for the Jewish astronaut by a company in Illinois. He also consulted a rabbi identified with the Lubavitch movement serving in the vicinity of Cape Canaveral with regard to the proper method of determining when to observe Shabbat. Colonel Ramon indicated to one reporter that he was not strictly Sabbath observant and would also find it impossible fully to observe Shabbat during his mission in space, but that he nevertheless felt that in participating in the space program he was \"representing all Jews and all Israelis\" and therefore should endeavor to conduct himself accordingly.",
+ "One may surely hope that the interest and discussion evoked by Colonel Ramon's query will impress upon others the importance of Sabbath observance. In any event, the sentiments he expressed are themselves quite salutary: A Jew may not have developed the spiritual fortitude that fosters consistency in abiding by the demands of Judaism but may nevertheless intuitively shrink from public transgression. The Jewishness that was at the core of his being caused him to recoil from unnecessary Sabbath desecration that was be-farhesiya, i.e., public and notorious. With the eyes of the world focused not only upon the flight of the space shuttle but upon the Israeli crew member in particular, the actions of that individual were indeed public and were perceived as representative of the Jewish people as a whole.",
+ "The issue of Sabbath observance aboard a space ship is a novel extension of the much older question of Sabbath observance in the polar regions and adjacent areas in which daylight and darkness extend for months at a time rather than alternating in periods of approximately twenty-four hours. Determination of the prescribed time for morning, afternoon and evening prayers as well as for other time-bound mizvot presents the identical problem. Jewish commercial travelers reached areas relatively close to the North Pole long before anyone, Jew or gentile, seriously dreamed of space travel.",
+ "Those questions received serious attention but hardly unequivocal resolution either because of doubt engendered by disagreement with regard to the proper solution of the problem or because measurement of time at the antipodes and/or in space is a matter of intrinsic halakhic doubt to which there is no resolution. The rabbinic attitude vis-à-vis proper comportment in the polar regions is eloquently captured in a letter written in 1886 by Rabbi Simcha ha-Levi Bamberger to his son that is published in the former's responsa collection, Zekher Simḥah, no. 30. Rabbi Bamberger's son was considering a trip to Norway for some business purpose and consulted his father regarding the appropriateness of the halakhic ruling of an unnamed Norwegian rabbi with regard to Sabbath observance. After discussing the problem and offering his own opinion, Zekher Simḥah concludes: \"However, all this is Halakhah but in practice my inclination is: Why should a person, even during weekdays, place himself in a state of doubt with regard to reading the Shema and prayer? At the minimum, do not remain in that country on Shabbat [where] there is doubt with regard to what to do. Nothing prevents God from bestowing blessing and success wherever your feet tread for good.\" A rabbinic decisor's fatherly advice and blessing to his son was to avoid halakhic doubt and find divine bounty elsewhere.",
+ "II. R. Jacob Emden",
+ "The first rabbinic authority to address the question of time at the polar regions was the eighteenth-century scholar R. Jacob Emden whose opinion gained wide currency due to its citation in Sha'arei Teshuvah, Oraḥ Hayyim 344:1. R. Jacob Emden is quoted in that source as ruling that \"those traveling below the polar region where the day is prolonged into a month or two months and [in some places] six months should count six days of our twenty-four equal hours,\" i.e., the advent of Shabbat should be deemed to occur after six periods of twenty-four clock hours have elapsed. In context, the implication of Sha'arei Teshuvah's citation of R. Jacob Emden's view is certainly that the seventh cycle of twenty-four hours is to be regarded as Shabbat in every respect. However, a careful examination of R. Jacob Emden's comments in his Mor u-Kezi'ah 334 in their entirety reveals a certain ambiguity in Rabbi Emden's position. Mor u-Kezi'ah comments:",
+ "It is necessary to reflect upon [the manner in which] those who dwell or travel in the lands near the poles should conduct themselves. For, in proportion to proximity [to the pole], the day becomes lengthened. There [are places in which] a month or two months and even longer may be a day to the extent that there exists a place where the day is prolonged to half a year and similarly the night is half a year. And under the pole there is no day and night at all; rather there is twilight [during] the entire year for in that place there is no sunrise or sunset because the [celestial] equator is its horizon. If so, how should they establish Shabbat there? It seems to me that there it is necessary to count seven equal days of twenty-four of our equal hours, and calculating from the day that one arrived there, one should count days by means of hours and sanctify the seventh in the manner mentioned earlier with regard to a traveler in the desert.",
+ "Mor u-Kezi'ah's assertion that there is neither night nor day at the North Pole itself (or at any other place that might be denoted by the phrase \"under the pole\") because the sun never rises and never sets is simply an empirical error. It is true that a person standing at the North Pole who looks out over the horizon will observe all stars north of the equator because, at the North Pole, the celestial equator can be seen on the horizon. However, it is precisely at the North Pole that day and night are each six months in duration and at no place is there year round twilight. Assuming, however, that Mor u-Kezi'ah's description is factually accurate and that, in the absence of sunrise and sunset, the halakhic day is to be calculated as a period of twenty-four clock hours, it remains necessary to determine when the sequence of days begins in order to determine the seventh day of each weekly cycle. Logic would dictate that \"time\" at the North Pole began when time began for the rest of the planet. However, instead of being contingent upon a sequence of sunrises and sunsets, time at the North Pole is calculated by means of clock hours. If that is the case, then Shabbat should be observed on the North Pole on the same \"day\" that it is observed elsewhere in the globe although, to be sure, Shabbat would begin and end throughout the year at the same hour. In effect, the North Pole would have its own \"local\" time just as the day begins and concludes at every other geographic point on earth in accordance with its own local time. The sole difference being that \"local\" time at the North Pole is idiosyncratic in that it is to be determined by consulting the clock while elsewhere local time depends upon sunrise and sunset.",
+ "But Mor u-Kezi'ah says something astoundingly different. He rules that the week commences with the arrival of the traveler who then counts six days before sanctifying the seventh. Apparently, every traveler begins calculating his own weekly cycle upon arrival regardless of which day of the week it might be elsewhere on the globe. The resultant situation is certainly anomalous: Not only do two travelers observe Shabbat on two different days but neither of them observe Shabbat on the day of the week on which it is observed by Jews elsewhere in the world!",
+ "Moreover, Mor u-Kezi'ah rules that the identical procedure must be followed not only in fictitious places where the sun always shines but also in areas in which the cycles of daylight and darkness are a month, two months or six months in duration despite the fact that in those locales the phenomena of sunrise and sunset do occur, albeit at intervals that vary greatly from other places.",
+ "It seems to this writer that the key to understanding the import of Mor u-Kezi'ah's ruling is in his concluding phrase: \"and he sanctifies the seventh in the manner that has been mentioned earlier with regard to a traveler in the desert.\" If one reflects upon that comment for but a moment it seems to be entirely inappropos. To be sure, the rule codified in Shulḥan Arukh, Oraḥ Hayyim 344:1, is that a traveler in the desert who becomes confused and no longer knows which day of the week it is counts six days and sanctifies the seventh. But the days that he counts are conventional solar days, not twenty-four hour clock days. Moreover, that halakhic provision in no way reflects the notion that the days of the week are to be determined in an arbitrary, subjective or individual manner. Quite to the contrary, doubt with regard to the identity of each day of the week—and hence the objective determination of Shabbat—is not at all dispelled by adoption of an arbitrary convention. For that reason, the rule as recorded by Shulḥan Arukh is that since the traveler remains in a quandary he must refrain from activity forbidden on Shabbat on each and every day. The traveler is permitted to perform any act necessary to sustain life and such acts are permitted even on the day that he observes as Shabbat. Thus, he may cook as much food as necessary to meet his minimum requirements on each day of the week, including the day that according to his arbitrary calculation is Saturday. He is also permitted to do whatever is necessary in order to emerge from the desert as quickly as possible so that he may return to proper Sabbath observance and he may engage in such travel even on the day that he observes as Shabbat. The confused traveler observes the day designated as the Sabbath solely through recitation of kiddush, havdalah and Shabbat prayers. Those observances are rabbinically ordained for the day designated by the traveler as his personal Sabbath lest the confused traveler forget the very concept of Shabbat.",
+ "Application of that rabbinic decree to a hypothetical geographic area in which there is perpetual daylight is problematic to say the least. Its application to locales in which the day is inordinately long in duration is even more baffling. There is no hint in that rabbinic decree indicating that in a place where there is no sunrise or sunset the day is to be calculated as twenty-four clock hours in length and certainly no suggestion that where there is sunrise and sunset that the \"days\" cannot be weeks or months in duration. Moreover, the rabbinic decree is limited solely to matters of liturgy and ritual but does not permit transgression of even rabbinically ordained strictures on any day of the week.",
+ "It seems to this writer that Mor u-Kezi'ah regarded the establishment of halakhic time, and hence of the Sabbath, in the places under discussion to be a matter of unresolvable doubt. To be sure, as clearly enunciated by R. David ibn Zimra, Teshuvot ha-Radvaz, I, no. 76, determination of the onset and conclusion of Shabbat is determined locally. Leviticus 23:3 mandates that the Sabbath be observed \"in all your habitations.\" That phrase is understood by Radvaz as signifying that the onset and conclusion of Shabbat is to be determined in accordance with sunset at each particular \"habitation.\" Shabbat is designed as a \"sign between Me and between you\" (Exodus 31:13) and accordingly, is to be observed during the period representing the culmination of six days of labor in each person's locale. The Sabbath day, which includes a period of darkness and a period of daylight, is roughly twenty-four hours in length in all places other than in the extreme northern and southern regions. As a result, the Sabbath is observed on the same day of the week in all parts of the globe. Accordingly, Mor u-Kezi'ah assumes that in locales in which that cannot be the case there is no discernible method for determining the days of the week. Hence, determination of the advent of Shabbat remains either a matter of irresolvable doubt or, alternatively, there is no concept of halakhic time in such places. Therefore, Mor u-Kezi'ah rules that a person finding himself in such a place faces a problem that is no different from that confronting a person lost in the desert or confused with regard to a sequence of days and must conduct himself in an identical manner. That is precisely the import of Mor u-Kezi'ah's concluding phrase \"in the manner indicated earlier with regard to one who travels in the desert,\" i.e., he may perform no forbidden act on any day of the week and must recite kiddush and havdalah on the seventh day of every seven-day cycle subsequent to his arrival.",
+ "But even that understanding of Mor u-Kezi'ah's position remains problematic if there is no halakhic time in such regions. Were that the case, there would be no Shabbat and hence no forbidden acts. Rabbinic legislation regarding kiddush and havdalah might well be cogent as a means of keeping the concept of Shabbat alive but the element of doubt that renders proscribed acts impermissible on any day that might possibly be Shabbat is not at all present in an area in which there is no time and hence no Shabbat. Accordingly, it would seem that Mor u-Kezi'ah should be understood as assuming that halakhic time does exist in the polar regions but that a method of calculating the passing of time in such areas is not available to us. Accordingly, all matters requiring a determination of time remain a matter of irresolvable doubt in such areas.",
+ "Understood in this manner, Mor u-Kezi'ah's position is cogent but nevertheless open to objection. As a matter of general principle, rabbinic legislation was designed for the usual and the anticipated but milta de-lo shekhiḥa lo gazru bah rabbanan, the unusual and the unanticipated, are not subsumed within the ambit of rabbinic legislation. For the Sages, the possibility of becoming lost in a desert was certainly not farfetched; however, travel to the polar regions would not merely have been unanticipated but would have been inconceivable. Moreover, rabbinic legislation is to be interpreted on the basis of the principle of strict construction. Talmudic decrees apply only to specified conditions under specified circumstances. The Sages promulgated an edict requiring recitation of kiddush and havdalah in a situation in which the proper day for observance of the Shabbat is known to one and all with the exception of an isolated traveler who has become confused. Even the confused traveler is obligated to observance of the proper day as a matter of objective certainty; the problem is that he does not know what everyone else does know, viz., which day that is. Hence the Sages promulgated a decree requiring at least some form of observance for even this individual lest he become entirely desensitized to the notion of Shabbat.",
+ "However, Shabbat in the polar regions is a matter of doubt for everyone. There is no evidence of a rabbinic decree requiring kiddush and havdalah on any day in a situation in which no one knows and no one can possibly know which day is Shabbat. Even though we might think it wise and spiritually edifying to legislate some form of positive Shabbat observance even is such circumstances, the notion of strict construction would lead to the conclusion that, since such a contingency is technically outside the parameters of existing rabbinic legislation, there is, in reality, no such obligation.",
+ "There is a much more fundamental difficulty in understanding the view that Mor u-Kezi'ah apparently espouses. If halakhic time does exist even in the absence of sunrise and sunset but its calculation is always a matter of irresolvable doubt, it is not clear why such doubt does not persist even after the phenomena of sunset and sunrise reappear with the change of the seasons. Since there is no intrinsic reason why a single day must be twenty-four hours in duration, the \"time\" elapsed may be more or less than on the rest of the globe. If so, in any place in which there is no sunset or sunrise for any extended period during the year there is no way to gauge the period of time that elapses during that interval. Hence, the entire calendrical system in such a locale becomes subject to doubt that is generated during the period of constant daylight or constant darkness.",
+ "That problem is even more severe than may appear to be the case. For Rabbenu Tam who maintains that zet ha-kokhavim, or night, occurs only when the sun's angle of declension is 16.1 degrees below the horizon there is no \"night\" during some days of June as far south as London. If one were to adopt the theory herein outlined all calculations of the days of the week as well as the dates of the month in areas north of fifty-two degrees latitude would, according to Rabbenu Tam, be subject to doubt. Indeed, the identical problem presents itself north of sixty degrees latitude, an area that includes places such as St. Petersburg, even according to those who disagree with Rabbenu Tam.",
+ "III. Tiferet Yisra'el",
+ "Perhaps the most widely cited source with regard to Sabbath observance at the North Pole is a note authored by the nineteenth-century authority R. Israel Lipschutz and published in his classic commentary on the Mishnah, Tiferet Yisra'el, as an addendum to his commentary on the first chapter of Berakhot. Tiferet Yisra'el carefully distinguishes between places such as his own city of Danzig, as well as Copenhagen and Stockholm, in which there is always at least a brief period of dusk, and places further north in which \"there is no night at all but only daylight during the months of June and July.\" He also expresses concern with regard to people who sail close to the North Pole in order to catch \"whalefish\" because in that locale there are a number of months during the summer in which there is only daylight. Tiferet Yisra'el does not cite Mor u-Kezi'ah but adopts a position that is remarkably similar to that of R. Jacob Emden in one salient aspect. As did his predecessor, Tiferet Yisra'el rules that each twenty-four hour period constitutes a day. In support of that conclusion he draws upon the fact that the sun can be observed as completing a full circle above the horizon each twenty-four hour period. However, his position is fundamentally different from that of Mor u-Kezi'ah in that Tiferet Yisra'el maintains that the day is determined objectively rather than individually by each traveler. Thus throughout the year Shabbat occurs at the North Pole the same day as it does on the rest of the globe and is objectively determined by the \"revolutions\" of the sun in the sky. In the polar regions the sun is observed as moving in a circular pattern and completes a full circuit in the overhead sky every twenty-four hours. Each of those twenty-four hour circuits, maintains Tiferet Yisra'el, represents a single day. However, Tiferet Yisra'el fails to identify a phenomenon that might serve to demarcate successive days during the polar night when the sun is entirely concealed.",
+ "Adoption of that thesis serves to establish the \"day,\" i.e., the twenty-four hour period, on which Shabbat occurs but provides no method for determining when Shabbat begins or when it concludes. Nor does it provide a means by which one can determine the proper time for recitation of the Shema or the several daily prayers. Without citing evidence or precedent for his view, Tiferet Yisra'el opines that the traveler should adopt the clock of \"the place from which he departed\" (makom she-yaza mesham) in determining the beginning and end of each day and the various divisions thereof. There is some ambiguity with regard to Tiferet Yisra'el's precise meaning: Does \"the place from which he departed\" connote the locale of the traveler's former residence or his port of embarkation? A similar position is advanced by R. Pinchas Eliyahu Hurwitz, Sefer ha-Brit, I, ma'amar 4, chapter 11. With regard to a person who finds himself in the polar regions, Sefer ha-Brit declares that \"after he counts six times twenty-four hours on the clock he should make Shabbat.\" Sefer ha-Brit presumably means that the clock to be used for this purpose is one that shows the current time at the port of embarkation.",
+ "Tiferet Yisra'el himself notes one resultant incongruity: A traveler arriving at the North Pole from England and a traveler arriving from America would both observe Shabbat on the same \"day\" but at different hours. The European would recite kiddush while the American might legitimately perform all manner of labor; some twenty-four hours later the European would recite havdalah while the American is engaged in the recitation of the Shabbat minḥah service. One can only ponder the situation of children born to an American man who marries a European woman at the North Pole. When does Shabbat begin and end for the children of that marriage? The issue is not one of custom, with regard to which the father's custom prevails, but one of law. There seems to be no reason why, normatively, children should be governed by one parent's clock rather than by the clock of the other parent. Indeed, that situation serves to highlight the underlying problem, viz., why should children be governed by their parents' clock? The time reflected by that clock is neither the time of the child's prior residence nor of the child's port of embarkation. Indeed, by what reason is the traveler himself governed by the clock of his place of embarkation or of previous domicile?",
+ "At least in part because of this incongruity, Tiferet Yisra'el recognizes that infractions of Sabbath prohibitions in the polar area do not occasion statutory punishment. The phraseology employed by Tiferet Yisra'el may be readily understood as implying that Tiferet Yisra'el recognizes that Shabbat observance in the polar area in the manner that he describes is not biblically mandated but is in the form of a rabbinic obligation, presumably similar to that of a person who loses track of time in a desert.",
+ "Putting aside the question of how the beginning and end of each day is to be determined as well as the question of whether Sabbath obligations in such areas are binding by virtue of biblical law or rabbinic decree, Tiferet Yisra'el's basic position, i.e., that the passing of days is to be calculated on the basis of twenty-four hour periods, is accepted, in addition to R. Jacob Emden, by R. Chaim Joseph David Azulai, Maḥazik Berakhah 344:4; Sha'arei Teshuvah, Oraḥ Hayyim 344:1; R. Jehoseph Schwartz, Teshuvot Divrei Yosef, no. 8; Sefer ha-Brit, I, ma'amar 4, chap. 10; Teshuvot Rav Pe'alim, II, Sod Yesharim, no. 4; Kaf ha-Hayyim, Oraḥ Hayyim 344:2; R. Yechiel Michal Tucatzinsky, Bein ha-Shemashot (Jerusalem, 5789), p. 55; R. Yechiel Michal Gold, Me'asef le-Khol ha-Maḥanot, Oraḥ Hayyim 18:25; and R. David Spira, Teshuvot Bnei Ẓion, Kuntres Midot ha-Yom, secs. 21-23; R. Mordecai Winkler, Teshuvot Levushei Mordekhai, Mahadura Tinyana, Oraḥ Hayyim, no. 47; R. Ovadiah Hedaya, Teshuvot Yaskil Avdi, VIII, Oraḥ Hayyim, no. 22, sec. 9:7; R. Chaim Zimmerman, Agan ha-Sohar (New York, 5715), p. 437; and R. Betzalel Stern, Ahalekh be-Amitekha (Jerusalem, 5752), 30:16.",
+ "IV. An Unconsidered View",
+ "Tiferet Yisra'el cites no evidence in support of his view. The phenomenon of the sun's circular movement over the horizon each day is certainly not a demonstration that each twenty-four hour period in which such a revolution takes place constitutes a halakhic day. Quite to the contrary, Scripture records \"and it was evening, and it was morning, one day\" (Genesis 1:5). Read literally, the day is defined in terms of alternating periods of light and darkness, not in terms of a revolution of the earth upon its axis or of the circuitous movement of the overhead sun. How this might have occurred prior to the creation of the sun on the third day is a matter that has engaged the attention of numerous biblical commentators, most particularly, Rambam and Seforno, Genesis 1:5; Rabbenu Baḥya, Genesis 1:13; Rashbam, Genesis 1:4 and 1:14; R. Isaac Arama, Akeidat Yizḥak, sha'ar shlishi; and Malbim, Genesis 1:5.",
+ "This concept also appears to be reflected in the words of Pesikta Rabbati 15:1. Citing the verse \"Who appoints the moon for seasons; the sun knows its going down\" (Psalms 104:19), Pesikta Rabbati comments, \"Because 'the sun know its going down'—from here [it is derived] that we do not calculate according to the moon unless the sun has set.\" In context, Pesikta Rabbati declares that even though the nascent moon has been sighted a new month does not begin until the sun sets. The import of that statement would certainly seem to be that a new day can begin only upon the actual setting of the sun.",
+ "There is another way of viewing the passing of days at the poles, a method that is simple and obvious in conception but entirely strange in application. As noted earlier, there is strong reason to assume that the halakhic day is demarcated by sunset and sunrise. There is no obvious reason for assuming that a day must be approximately twenty-four hours in duration. If so, it might readily be argued that a day should always be defined as the period that elapses between one sunset and the next sunset, regardless of how many hours have elapsed between those two phenomena. Thus, if at the North Pole a single sunset is followed by six months of darkness and those six months of darkness are followed by six months of daylight culminating in the next sunset, the length of a \"day\" at the North Pole is equal to a full year. After six such days elapse the following \"day\" of twelve months duration would be Shabbat. According to that theory, Shabbat would occur at the North Pole only once in seven years but would last for an entire \"sabbatical\" year. Calculation of the sequence of those year-long days would begin no later than from the creation of the sun.",
+ "Application of the same theory to other areas in the far north where a summer \"day,\" i.e., the period between one sunset and the next may be, for example, two months in duration, would result in considering that two-month period to be a single day within the seven day cycle of a \"week.\" Shabbat would then be determined by recalculating the sequence of the days of the week by taking the two-month day into consideration as a single day. Those calculations would also have to be refigured from the day of creation. The result would be highly inconvenient to say the least, both because Shabbat would not be observed on the same day as it is observed on the rest of the globe and because observance of Shabbat would fluctuate each year from one day of the week to another.",
+ "It should also be pointed out that adoption of this thesis leads to the result that, according to Rabbenu Tam, Shabbat may not coincide with Saturday even in areas as far south as London. On days that the sun does not decline at least 16.1 degrees below the horizon it is, according to Rabbenu Tam, at least doubtful whether a new day has begun. If a new day has not begun, then the entire period during which the sun does not decline 16.1 degrees is part of a single day and, accordingly, the ensuing Shabbat, and all future Sabbath days, must be calculated on the basis of that consideration.",
+ "Fortuitously, a thesis of this nature has not been espoused by any scholar. However, an unnamed interlocutor whose comments are recorded by R. Jehoseph Schwartz, Teshuvot Divrei Yosef (Jerusalem, 5622), no. 8, did formulate such a view. That scholar adduces a statement found in Pirkei de-Rabbi Eli'ezer, chapter 52, in support of this view. Pirkei de-Rabbi Eli'ezer, commenting upon the phenomenon described in Joshua 10:13, maintains that Joshua caused the sun to remain in a fixed position in the sky for a period of twenty-four hours and that the miracle was performed by Joshua on a Friday. That entire period was regarded as a weekday rather than as Shabbat, thereby enabling completion of the military engagement without desecration of the Sabbath. The anonymous scholar is reported to have cited those comments as suggestive of the notion that a day may be of indeterminate length.",
+ "Divrei Yosef dismisses this argument by citing the full comment of Pirkei de-Rabbi Eli'ezer which indicates that Joshua interfered not only with the motion of the sun but also with the motion of the other luminaries, i.e., the moon and the stars. That statement, asserts Divrei Yosef, demonstrates that not only the sun but all the celestial bodies remained suspended in the sky. Hence, in effect, Joshua caused time to be suspended. That phenomenon, declares Divrei Yosef, is quite different from the purely local phenomenon that occurs at the North Pole.",
+ "The anonymous interlocutor is further quoted as rejecting his own proposed thesis because the Palestinian Talmud, Kelayim 9:13 and Ketubot 12:3, reports that a similar phenomenon occurred on the Friday on which the funeral of R. Judah the Prince took place. However, the Palestinian Talmud reports that on that occasion the participants in the funeral considered themselves to have desecrated the Sabbath. The latter statement, he argues, establishes that the demarcation of successive days does not necessarily depend upon the declension of the sun below the horizon.",
+ "The reason why such a thesis does not merit consideration is not immediately evident, particularly if there is no intrinsic reason why a day must be approximately twenty-four hours in duration. The only reason that suggests itself to this writer is that, although the beginning and end of a day and intermediate divisions of the day certainly depend upon local sundown and sunrise, the identity of any given day is the same throughout the globe with the minor exception presented by the necessary adjustment for the dateline. The dateline phenomenon is not an exception to the basic principle because that phenomenon is the logical result of the movement of the sun as perceived in all places throughout the globe except for the polar areas. The notion that in one locale it may be Shabbat while in another it may be some time on Friday and in another locale it may be some time on Sunday is readily understood. But a thesis that will posit that Shabbat can occur in some geographic area on a day that is, for example, Wednesday elsewhere is incompatible with the very nature of a calendrical system.",
+ "V. An Alternative View",
+ "There is however another possibility that, to this writer, seems to be the most cogent way of viewing \"time\" in the polar regions. It may be suggested that in the absence of the halakhic criteria of sunset and sunrise there is no halakhic day and hence no halakhic time. Locales in which that is the case have no time because they \"transcend\" time. The result would be that obligations with regard to time-bound mizvot are simply non-existent in such places.",
+ "Thus, since a day is defined as the period between sunset and the following sunset, allowing for variation in its beginning and end, the day of the week is the same throughout the globe. Since sunset and sunrise do not occur in approximately twenty-four hour sequences in the polar areas, any particular polar day could not be identified as the same day of the week recognized in other locales. Accordingly, there is no \"day\" at the North Pole and hence there are no festivals. Since there is no day to be divided into hours, there is no obligation with regard to reciting the Shema or any of the time-bound prayers.",
+ "This is true also in northern areas below the North Pole in which the summer day and the summer night are weeks or even months in duration. But this is true only during those periods of prolonged daylight and prolonged darkness. During the periods of the year in which there is sunrise and sunset, regardless of the brevity of the day or night, time-bound mizvot are fully binding and the day of the week as well as the date in those areas is identical to the day and the date everywhere else on the globe.",
+ "In order to appreciate this concept fully it is helpful to think of time as a \"place.\" A person in outer space or a person near the polar region in which a single day extends for a period much longer than twenty-four hours \"transcends\" time and hence is \"outside\" the \"place\" called Shabbat. When the same traveler returns to earth, when the person in the polar area travels out of that region, or when summer or winter becomes fall or spring in the polar region, the individual has in effect \"reentered\" the place called \"time.\" He reenters an objectively defined time that is identical for him and for all other individuals. The term \"sunset\" is used to denote the end of the day. Whether the day ends at sunset or at zet ha-kokhavim, i.e., when it is actually night as evidenced by the appearance of stars is, of course, a matter of halakhic doubt. Hence, there will be locales in which obligations with regard to observance of time-bound mizvot will be a matter of parallel doubt, i.e., in areas in which, on some days during the year, the sun sets but does not decline below the horizon sufficiently for it actually to become night, the very existence of time is doubtful and hence the obligation with regard to time-bound mizvot becomes a matter of doubt.",
+ "According to this thesis, the days that elapse elsewhere on earth during the periods of prolonged polar daylight and darkness which are not halakhically recognized as \"days\" have no effect on subsequent calculation of time in the polar areas. Similarly, the calendrical system is unaffected in those areas during other periods of the year. There is no \"time\" in those areas either the entire year or for portions of the year, depending upon proximity to the pole, because those areas are le-ma'alah min hazman, i.e., in those areas time is transcended. But the reappearance of the phenomena of sunrise and sunset in those areas signifies a return to the realm of time. Moreover, those locales return to the spot on the continuum of time that is shared by the entire globe.",
+ "Metaphorically, the matter can be compared to a group of people seated together on a carousel moving round and round in a circle. If one of the group gets off the moving carousel he is no longer in motion or in any way subject to motion. Nevertheless, the person exiting the carousel can observe his companions and, although he is a spectator who \"transcends\" their motion, he can be fully cognizant of their continued circular movement. If he stands outside and waits while the carousel completes one or more \"revolutions\" or circuits and then rejoins his companions at the same spot on the carousel at which he left them on an earlier circuit he will continue to ride with them in precisely the same spot as he would have ridden had he never exited from the carousel.",
+ "It is also possible that time may not only be transcended by a space traveler or in the polar regions but that, at times, all of planet Earth may transcend time. The import of that notion is that time, once created, enjoys an independent ontological existence even when time is nowhere manifest. Time, under such circumstances, would continue to march and Earth, when it returns from its state of transcendence, would return to the spot on the continuum of time that it would have occupied had it not temporarily transcended time.",
+ "Strange as that thesis may appear, it serves, in this writer's opinion, to explain two difficult aggadic statements that have long been a source of puzzlement. Scripture records that in the war against Gibeon undertaken by Joshua the sun stood still in the sky in order to enable the conquest to become complete: \"And the sun stood still and the moon stayed until the nation avenged itself of the enemies … and the sun stayed in the middle of the sky and did not hasten to go down for a whole day\" (Joshua 10:13). Based upon differing interpretations of that verse, the Gemara, Avodah Zarah 25a, records a dispute with regard to whether that \"day,\" i.e., the hours of daylight, was twenty-four, thirty-six or forty-eight hours in duration. In Avodah Zarah 25a there is no hint that the entire time period described together with the normal period of darkness counted for other than a single calendar day. However, Pirkei de-Rabbi Eli'ezer, chapter 52, adopts the view that the sun shone for thirty-six hours and reports that the battle occurred on Friday \"and Joshua saw the anguish of Israel lest they desecrate the Sabbath … and each [of the luminaries] remained stationary for thirty-six hours until the conclusion of the Sabbath.\"",
+ "Pirkei de-Rabbi Eli'ezer obviously maintains that the additional twenty-four hours of daylight were not \"extra-calendrical.\" Nevertheless, although that twenty-four hour period corresponded to the Shabbat day, Sabbath restrictions were not incumbent upon Jews during that period. When the sun did set, it was at the \"conclusion of the Sabbath.\" It must therefore be concluded that during the twenty-four hour period during which the sun remained in the sky, time was not suspended but was \"transcended.\" Since all of Earth was affected, time was transcended by the entire planet. Moreover, when the sun did set, Earth returned to normal patterns of time and did so as if there had been no interruption in the flow of time.",
+ "In addition, a number of sources, including the Palestinian Talmud, Berakhot 8:6; Bereishit Rabbah 11:2, 12:6 and 82:17; Midrash Tehillim 92:4; and Pesikta Rabbati 23:6, record that there was no period of darkness during the very first Sabbath which came after the six days of creation; rather, there was a period of thirty-six hours of daylight followed by nightfall marking the conclusion of the Sabbath day. Yet that thirty-six hour period included a \"day\" deemed to be the Sabbath and was followed by a day deemed to be the first day of the following week. Again, it may be postulated that terrestrial time was temporarily transcended rather than suspended and that, when normal time patterns based upon alternating periods of light and darkness marked by sunrise and sunset resumed, time continued as if it had not been interrupted.",
+ "It must then be presumed that whenever alternating periods of day-light and darkness of approximately twenty-four hours in length do not occur \"time\" does not exist, but when such alternating periods are reestablished the reckoning of temporal sequence must take into account the \"time\" that would have elapsed under normal conditions.",
+ "The notion that a Jew in outer space or in the polar areas is exempt from even some mizvot has been branded far-fetched or worse by a number of rabbinic writers. Indeed, one can readily empathize with that reaction and, despite the fact that the alternative theses that have been advanced seem to be at least as far-fetched, this writer would not have the temerity to advance that thesis without at least minimal support. Support for this view is found in the writings of an anonymous scholar quoted by R. Joseph Mashash, Teshuvot Mayim Hayyim, Oraḥ Hayyim, no. 111. Rabbi Mashash reports that he was shown a manuscript authored by an unnamed scholar described as \"one of the sages of the generation.\" That scholar is certain that persons finding themselves in such locales are exempt from Sabbath observance \"because the Torah predicated the matter upon days, as it is written 'six days shall you labor and on the seventh you shall rest' (Exodus 34:21). Unless otherwise specified, \"days\" are composed of twenty-four hours. Since [in the polar regions] there are no days, there is no Shabbat there.\" Although Rabbi Mashash cites this view only to disagree with it, this writer finds the thesis advanced by this anonymous scholar to be entirely cogent and finds it instructive that neither Rabbi Mashash nor any other scholar has advanced evidence to counter that view.",
+ "VI. Orbiting the Earth",
+ "If there is no obligation with regard to time-bound mizvot in the polar regions because a person finding himself in such a locale has transcended time, the same is certainly true for a person on a space journey. If there is no halakhic time in the polar regions, a fortiori, there is no halakhic time in outer space. Outer space is literally \"above\" time, i.e., an area that is transcendental to time. Thus, although other mizvot are personal in nature and hence, in this writer's opinion, fully binding even in outer space time-bound mizvot are not at all binding in celestial regions. Time-bound mizvot can no more be binding \"above\" or \"outside\" time than can mizvot contingent upon the sanctity of the land of Israel be biblically binding outside the confines of that country.",
+ "That, however, is not the situation of the Jewish astronaut circumnavigating the planet in earth orbit. Sefer ha-Brit, cited by J. D. Eisenstein, Ozar Yisra'el (New York, 1952), V, 112, poses an intriguing question: If, upon conclusion of Shabbat, a person ascends to the sky in a \"flying balloon\" and there finds the sky to be illuminated, may he engage in forbidden acts of labor? The answer would appear to be that, despite the fact that this dirigible or airplane traveler observes a sun that has not yet set, i.e., a sun that is visible to him as he looks across his horizon, he is in no way bound by Sabbath restrictions.",
+ "The basic principle is that for all halakhic purposes time is calculated at ground level. The Gemara, Shabbat 118b, reports that R. Jose exclaimed, \"May my lot be with those who inaugurate the Shabbat in Tiberias and with those who end the Shabbat in Sepphoris (Zippori).\" Reflected in the words of R. Jose is the notion that Shabbat begins earlier in Tiberias than it does in Sepphoris and consequently ends in Sepphoris later than in Tiberias. R. Jose followed the \"clock\" of Tiberias and began observance of the Sabbath earlier than required in the locale in which he found himself and followed the clock of Sepphoris is concluding the Sabbath later than required in the locale in which he found himself. R. Jose was practicing tosefet Shabbat, i.e., he was adding to the duration of his observance of the Sabbath. That practice is praise-worthy and deserving of reward.",
+ "Teshuvot Ri mi-Gash, no. 45, observes that Tiberias and Sepphoris are really in close proximity to one another but that Tiberias is in a valley and Sepphoris is located at the top of a mountain. For that reason there was a significant discrepancy in the time of sunset in those two cities. The higher one's elevation the more one can see of the curvature of the earth with the result that a person at the top of a mountain will not see the declining sun disappear from sight until sometime after the sun is observed to have set below the horizon by a person standing at the base of the mountain. The Gemara's statement indicates that Shabbat begins later in Sepphoris than it does in Tiberias because sunset—and hence time—is determined at ground level. Ground level is not uniform; rather it depends upon the topography of the area and hence may be represented by the bed of the valley or the top of the mountain. Accordingly, the beginning and the end of the day at the mountain top is different from the beginning and the end of the day in the valley.",
+ "But Shabbat for a person in a tower or on the roof of a tall building does not begin later than it does for a person standing in the street. Sunset is determined by observation at ground level but the time established in that manner is normative ad coelum. Thus, R. Moshe Feinstein, Iggerot Mosheh, Oraḥ Hayyim, III, no. 96, s.v. u-le-inyan, states unequivocally that an airplane traveler must determine the time for prayer on the basis of sunrise and sunset as observed at ground level. Hence if it is no longer Shabbat on the ground it is also no longer Shabbat in a dirigible or airplane flying above that spot. If that is true for an airplane passenger flying 35,000 feet above the ground it should also be true for a person in earth orbit higher in the sky. To be sure, once a person travels significantly beyond that point he is no longer \"above\" the earth or above a place in which conventional time exists; at that point he \"transcends\" time. But so long as he is in orbit it seems clear that he is indeed above an identifiable spot on earth and, accordingly, at any given moment time in the spaceship is identical to time at the spot that he is overflying.",
+ "For the Jewish astronaut orbiting earth, the day of the week is the same as it is on earth. But as he orbits earth every ninety minutes he will at one moment find himself over a geographic point where the Sabbath has already concluded but, since he is flying faster than earth's rotation, some minutes later he will find himself overflying a place where it is still Shabbat. That cycle can repeat itself over and over again in the course of a single Shabbat.",
+ "To take an example involving two cities familiar to everyone, an astronaut may find himself over New York at 1:00 P.M. Shabbat afternoon. At that moment it is 8:00 P.M. in Jerusalem. The astronaut will have completed shaḥarit and musaf prayers, will have recited kiddush and eaten the Sabbath meal. Approximately one hour later, traveling east to west and circumventing the globe every ninety minutes, he will be over Jerusalem. In Jerusalem it is 9:00 P.M. while in New York it is 2:00 P.M. Since it is after the conclusion of Shabbat the astronaut will recite havdalah. But approximately one half-hour later the astronaut will again be over New York at 2:30 P.M. New York time. Since he has flown back into an area in which it is Shabbat, all restrictions upon performing prohibited acts of labor are binding upon him. Those cycles repeat themselves throughout the day and obviously apply not only to New York and Jerusalem, cities that are given only for purposes of illustration, but to all points on the globe.",
+ "The strangeness of the result has led at least one scholar adopt a differing position. Nevertheless, it seems to this writer that the astronaut may perform acts of labor while overflying areas in which it is already night but is forbidden to perform such acts while overflying areas in which there is yet daylight and that in the course of a single day he will experience multiple alternating periods during which he is permitted to perform such acts and periods during which he is forbidden to do so.",
+ "This result notwithstanding, there is no reason why the astronaut should be required to recite kiddush or to offer any of the statutory prayers more than once during the course of a day. The astronaut is, in effect, \"leaving\" and \"reentering\" an identifiable day; having discharged the obligation of kiddush or prayer for that day, there is no factor that would generate a new obligation for that day.",
+ "The foregoing is predicated upon the thesis that Shabbat is determined entirely by the geographic area in which a person find himself and hence if a person could somehow travel from a place where it is Shabbat to a place where it is a weekday he might cease observance of Shabbat even though he has not experienced nightfall. Thus, R. Kalman Kahana, Ha-Ish ve-Hazono (Tel Aviv, 5724), p. 100, writes that Hazon Ish declared that a person who, in the course of traveling by ship from east to west, crosses the halakhic dateline sometime during Shabbat may cease observance of the Sabbath and must observe the following day as Shabbat. Similarly, a person traveling from west to east who crosses the dateline on Shabbat, and is then on the eastern side of the dateline where it is Sunday, may cease observance of Shabbat entirely and not observe Shabbat again until the end of the week. Hazon Ish refuses to distinguish between a traveler and a permanent resident or between a person who intends to return to his port of embarkation and a person who has no such intention \"for Shabbat was given to man at the place where he is.\" Hazon Ish sees no difference between that situation and the situation of a traveler who crosses the dateline. A traveler commences and ceases observance of Shabbat on the basis of the time of sunset in the locale in which he finds himself rather than on the basis of the time of sunset at his place of residence. Similarly, R. Betzalel Stern, Teshuvot Be-Ẓel ha-Hokhmah, IV, no. 83, assumes as a matter of course that a traveler crossing the halakhic dateline from west to east on Sunday must observe the balance of the day as Shabbat.",
+ "R. Moshe Feinstein, Iggerot Mosheh, Oraḥ Hayyim, III, no. 96, and Be-Ẓel ha-Hokhmah, I, no. 31, sec. 8, similarly rule that a person traveling by plane from west to east on Tish'ah be-Av may break his fast as soon as he experiences nightfall even though he has not fasted a full twenty-four hour period. The same principle would apply to determining the onset of the eighth day for purposes of circumcision of an infant, for determining the proper time for a woman's immersion in a mikveh and for various other halakhic matters. In each of those cases there is no reason why a person may not embark upon a trip in which such a phenomenon will occur. That would also appear to be the case with regard to crossing the dateline in circumstances in which the duration of the traveler's observance of Shabbat or of his fast will be diminished.",
+ "In a similar vein, R. David Menachem Babad, Teshuvot Havazelet ha-Sharon, I, Yoreh De'ah, no. 47, points out that a child becomes a bar mizvah on his thirteenth birthday wherever he may find himself even though he may no longer be in the city of his birth and even though in the place of his birth it may still be the previous day. Havazelet ha-Sharon applies the same general principle in permitting the slaughter of a calf immediately after nightfall following the day on which its mother was slaughtered even though the calf may be in a locale in which nightfall occurs while it is still day in the locale in which the mother was slaughtered. The same principle is applied by R. Eliezer Chaim Deutsch, Teshuvot Duda'ei ha-Sadeh, no. 25, to observance of a yahrzeit and by R. Alter Saul Pfeffer, Teshuvot Avnei Zikaron, II, no. 87, sec. 1, to observance of laws of mourning.",
+ "However, R. Aryeh Zevi Frommer, Teshuvot Erez Ẓevi, I, no. 44, adopts a somewhat different position with regard to observance of Shabbat. Citing Avnei Nezer, Oraḥ Hayyim, no. 89, Erez Ẓevi asserts that the obligations pertaining to Sabbath observance throughout the entire Sabbath day become effective at the very beginning of the day. Accordingly, he rules that a person who is in a place where it becomes Shabbat at nightfall becomes obligated to observe the entire ensuing twenty-four hour period as Shabbat even if he crosses the dateline during that period.",
+ "Despite the weight of opinion to the contrary, R. Menachem Kasher, Torah Shelemah, I, Bereishit 1:430, expresses doubt with regard to this matter. Without citing sources, he suggests that Shabbat observance requires the observance of a period of a full twenty-four hours. He further argues that on Yom Kippur a fast of a full twenty-four hours is required by virtue of the fact that Scripture requires that on Yom Kippur \"you shall afflict yourselves\" and proceeds to prescribe the observance of Yom Kippur \"from evening to evening\" (Leviticus 23:32). That position is reiterated by Rabbi Kasher in his Kav ha-Ta'arikh ha-Yisra'eli, chapter 58. In chapter 73 of the same work Rabbi Kasher reiterates that view with a slight variation: he questions whether performance of a forbidden act of labor under such circumstances involves a capital transgression or if it is only a negation of the positive obligation to rest on the seventh day. Elsewhere in Kav ha-Ta'arikh ha-Yisra'eli, chapters 39 and 53, Rabbi Kasher argues that there is a \"personal\" Shabbat at the end of every seven day cycle that is independent of solar phenomena. In chapter 53 he argues that observance of that \"personal\" Sabbath is mandated solely by the positive commandment regarding rest on the seventh day but not by the negative prohibitions entailing capital punishment.",
+ "VII. Prayer in the Polar Regions",
+ "How are the proper times for recitation of the thrice-daily prayers determined in the polar regions? That problem is more complex than determining the beginning and end of each day of the week because the stated time for shaḥarit is after dawn and the stated time for ma'ariv is after the appearance of stars. The primary issue is whether, for purposes of prayer, day is defined in terms of light and whether night, for purposes of prayer, is defined in terms of darkness. If so, there can be no opportunity for ma'ariv during the polar summer and no opportunity for shaḥarit (or minḥah) during the polar winter. Moreover, since in the polar regions, summer is one long day and winter is one long night, shaḥarit would be recited only once during the summer and ma'ariv but once during the winter.",
+ "On the other hand, with regard to the determination of day and night, dawn and the appearance of stars may not be definitional but simply emblematic, i.e., dawn and the appearance of stars may simply be visual phenomena signifying the advent of day and night but, objectively speaking, day and night may not be integrally associated with light and darkness. If so, there may be alternative ways of determining the beginning and end of each day and of each night.",
+ "It is precisely this question that is formulated by R. Elchanan Wasserman, Kovez Shi'urim, Pesaḥim, sec. 2, and which is the subject of further discussion by R. Shlomoh Heiman, Hiddushei R. Shlomoh: Ketavim u-Teshuvot, no. 19. Those views are cited by R. Abraham Israel Rosenthal, Ke-Moze Shallal Rav (Jerusalem, 5758), I, 22-24. The primary halakhic ramification arises in the context of a judicial proceeding in which it is necessary to determine the precise time of the commencement of night. The problem arises in a situation in which, instead of two witnesses coming forward to testify to the appearance of three stars, three different sets of witnesses appear and each one testifies to the appearance of a different star. The rule is that witnesses must testify to an entire \"matter\" rather than to \"half a matter\" (davar ve-lo ḥazi davar). It is because of that rule of evidence that, since halakhic majority is contingent not simply upon age but also upon the presence of two pubic hairs, a single set of witnesses must testify to the presence of both hairs. But, that rule of evidence notwithstanding, testimony of different sets of witnesses may be combined in order to establish that three years of adverse possession have elapsed. Shitah Mekubbezet, Bava Batra 56b, explains that pubic hair constitutes the essence of adulthood. Hence two hairs constitutes a single \"matter\" (davar) and therefore their presence must be established by a single pair of witnesses. In contradistinction, adverse possession does not serve to generate title but, in Jewish law, is merely evidence of title. Since adverse possession is not a \"matter\" but merely evidence of a \"matter,\" separate sets of witnesses may testify to different periods of adverse possession.",
+ "Similarly, if the presence of stars constitutes the essence of night, with the result that \"night\" and the presence of three starts are tautologous concepts, the evidence of the advent of all three stars must be established by a single set of witnesses. If, on the other hand, the appearance of stars is merely evidence of the arrival of night, the presence of each star might be established by a different set of witnesses.",
+ "R. Elchanan resolves this quandary by pointing to biblical verses. Stars were created together with other celestial bodies on the fourth day. Nevertheless, Scripture declares, \"And it was evening, and it was morning, one day.\" But how can there be \"evening\" in the absence of stars? Obviously, declares R. Elchanan, \"evening\" must be a phenomenon that can occur independently of the appearance of stars! The presence of stars in determining \"night\" is emblematic rather than causative or performative. R. Shlomoh Heiman endeavors to rebut that proof: A eunuch never develops pubic hair. But, despite the fact that pubic hair is the causative factor of adulthood, at the age of twenty the eunuch is declared to have retroactively achieved halakhic maturity at the age of thirteen. Similarly, suggests R. Shlomoh, the \"evening\" of each of the first three days of Creation may have been established retroactively with the appearance of stars on the fourth day. It should also be noted that Rashbam comments upon the fact that Scripture employs the term \"evening\" rather than \"night\" and proceeds to explain that the term \"day\" in that context is not at all to be understood in the conventional sense of the term.",
+ "According to R. Elchanan there is no question that determination of \"day\" and \"night\" is not absolutely contingent upon dawn and darkness. The sole issues are whether there are discrete days during the solar summer and the solar winter and, if so, when does each day begin. Once the beginning of each day is determined, the intervening period is divided into twelve hours of \"day\" and twelve hours of \"night.\" Hence, according to Divrei Yosef, each day of the polar summer begins when the sun returns to the point in the sky it occupied at the time of its first appearance in the spring; during the polar winter each night is similarly determined by the rotation of stars in the sky. Similarly, if R. Jacob Emden and Tiferet Yisra'el, as well as the numerous authorities cited earlier who maintain that the passing of days is to be calculated on the basis of twenty-four hour periods, are understood as asserting that \"days\" are to be calculated on the basis of twenty-four hour periods with the times of sunrise and sunset determined at the point of embarkation or at some other locale, the appropriate time periods for the various prayers would also be determined on the basis of those calculations. Ben Ish Hai, in his Teshuvot Rav Pe'alim, II, sod yesharim, no. 4, also espouses the view of R. Jehoseph Schwartz in his Teshuvot Divrei Yosef to the effect that the passing of days during the the polar summer and winter is to be calculated on the basis of twenty-four hour periods. Rav Pe'alim, however, asserts that night \"begins at the time that night and day commence at the equator,\" i.e., night begins at 6:00 P.M. and day beings at 6:00 A.M., and that the times for the various prayers are also to be determined on the basis of that presumption. The problem is that at the North Pole all time zones converge making the adoption of an equatorial clock impossible.",
+ "According to Mo'adim u-Zemanim, during the polar summer there are twenty-four hour \"days\" but \"nights\" of only a split second in duration and, presumably, during the polar winter there are \"nights\" of twenty-four hours and \"days\" of only a split second in duration. If so, one would recite shaḥarit and minḥah during the summer in the normal manner and ma'ariv during the period of plag ha-minḥah and recite only ma'ariv during the winter.",
+ "If, however, R. Jacob Emden and Tiferet Yisra'el are to be understood as asserting that there is no demonstrable method for determining the passing of days in the polar regions, it follows that, because of the irresolvable doubt, no prayers should be recited.",
+ "According to what has earlier been described as \"an unconsidered view,\" the polar summer would constitute one long day and necessitate recitation of but one shaḥarit and one minḥah while the polar winter would constitute one long night necessitating but a single ma'ariv. According to the earlier formulated \"alternative view,\" during the months in question there is no \"time\" in the polar regions with the result that no time-bound mizvot can be performed.",
+ "In terms of practice, a person finding himself in a polar area would be well advised to avail himself of the option provided by Halakhah for the offering of voluntary prayers (tefillot nedavah). The traveler should then determine the hours during which the various prayers may be offered according to the opinions of Tiferet Yisra'el, Teshuvot Divrei Yosef and Mo'adim u-Zemanim and recite the shemoneh esreh prayer during those periods. However, before reciting the shemoneh esreh he should stipulate that it is his intention that, if the hour is not appropriate for the offering of statutory prayer, the prayer is offered as an optional prayer. That expedient, however, is not available for recitation of the various other blessings that constitute part of the morning and evening services.",
+ "Recitation of keri'at Shema for the purpose of fulfilling the biblical commandment also requires determination of the beginning and end of each day and of each night. However, note should be taken of the rather curious and singular position of R. Chaim Eleazar Shapiro, Teshuvot Minḥat Elazar, IV, no. 42, to the effect that the proper time for recitation of keri'at Shema is to be determined by a literal reading of the verse \"when you lie down and when you rise\" and hence that the appropriate time for the recitation of Shema in the morning is established uniformly by clock hours rather than by astronomical hours, i.e., even the \"sons of kings\" arise by nine o'clock each day throughout the year. Thus, on each \"day\" keri'at Shema must be recited by nine o'clock. However, Minḥat Elazar's position does not entail the conclusion that people who customarily arise before dawn may recite keri'at Shema before the advent of the new day. Therefore, since the manner of determining the time at which \"dawn\" occurs during the polar summer and winter is problematic, the question of determining the proper time for recitation of keri'at Shema in the polar areas remains unresolved. Similarly, although keri'at Shema must be recited in the evening \"when you lie down,\" there is no obligation to recite keri'at Shema anew each time one goes to sleep during the course of a single night.",
+ "More obscure, but of no more help in resolving the problem of recitation of keri'at Shema in the polar areas, is the position of R. Ya'akov Shalom Sofer, Torat Hayyim (Budapest, 5764) 235:3, who advances the thesis that in places in which there is a \"short night\" the evening Shema may be recited \"when you lie down,\" i.e., after 6:00 P.M. A similar view is advanced by R. Moshe Sternbuch in a note appended to his Mo'adim u-Zemanim, II, no. 155 with regard to recitation of keri'at Shema both in the morning and in the evening.",
+ "VIII. An Afterword",
+ "The foregoing is an attempt to formulate the normative rules for a Jew finding himself in the polar areas or orbiting earth. Whether a Jew should seek to place himself in such a situation is an entirely different matter. Zekher Simḥah's advice to his son is worthy of citation in regard to that issue. Zekher Simḥah finds a comment of the Gemara, Berakhot 31a, to be instructive with regard to the situation in which his son found himself:",
+ "Mari the grandson of R. Huna the son of R. Jeremiah the son of Abba taught: A person should not take leave of his fellow other than with a matter of Halakhah for thereby he will remember him. R. Kahana escorted R. Shimi the son of Ashi from Pum Nahara to Be-Zenyata of Babylonia. When he arrived there he said to him… \"What is meant by the verse 'Through a land that no man had passed through and where no man dwelt' (Jeremiah 2:6)? Since no one passed through, how could anyone dwell? It is to teach you that any land which Adam decreed should be inhabited is inhabited and any land which Adam decreed should not be inhabited is not inhabited.\"",
+ "The comment does indeed serve to illuminate the meaning of the scriptural passage but does not at all appear to illustrate any matter of halakhic import. Yet the comment is cited as an anecdote in illustration of the dictum counseling that one should part from a friend with \"a matter of Halakhah,\" not with a matter of scriptural interpretation or an aggadic bon mot.",
+ "Zekher Simḥah regards the statement of the Gemara as reflecting a matter having halakhic import: Adam decreed that only areas in which mizvot might be observed should be inhabited; he decreed that areas in which mizvot are not fully binding should remain desolate and uninhabited. The halakhic moral is simple. Man should seek to maximize the opportunities for fulfilling mizvot. That is not possible in polar areas or in outer space in which time-bound mizvot are irrelevant.",
+ "It may be added that Deuteronomy 11:21 records that God commanded mizvot \"so that your days will be prolonged upon the land which the Lord your God gave you.\" Scripture does not speak of \"prolongation of life;\" instead it speaks of prolongation of \"days.\" In light of the foregoing it may be observed that man can experience longevity and his life can be prolonged even though his \"days\" are not prolonged, viz., he may live to a ripe old age in a polar region or in outer space. But for a Jew that is not a blessing, or at least not the blessing that God seeks to bestow upon him. Life devoid of time-bound mizvot is not the blessing God seeks to bestow; God's blessing is \"that your days be prolonged,\" i.e., that a Jew enjoy life filled with \"days\" and fulfillment of time-bound mizvot for which the concept of a halakhic day is a sine qua non."
+ ],
+ "Chapter IV Use of Surveillance Systems on Shabbat": [
+ "Reflect upon three things and you will not come to sin: Know what is above you—an eye that sees….",
+ "AVOT 2:1",
+ "I. Closed-Circuit Television",
+ "Closed-circuit television has become a widely used surveillance method and is frequently employed in private security systems. Such systems have been in use in various forms for a considerable period of time. When television sets were not as ubiquitous as at present, electrical appliance stores frequently sought to capture the attention of potential customers by placing closed-circuit systems in their windows. Passers-by would become enthralled at the sight of their own images on the television screen and, the proprietors hoped, would be enticed to enter their establishments. When used as a method of surveillance, the camera, which in private systems is generally fixed but may also oscillate to sweep over a large area, captures the image of any person or object that comes within range. The screen can be placed in a remote location and monitored for the purpose of detecting the presence of a trespasser or to enable the observer selectively to grant entry to the premises. Frequently, the person being observed on closed-circuit television is unaware of the fact that he is under surveillance.",
+ "Some time ago, Rabbi Israel Rosen, one of the editors of Teḥumin, solicited the late Rabbi Moshe Feinstein's opinion with regard of employment of such a security system on Shabbat. The inquiry was based upon the valid presumption that the device may be rendered operative in advance and requires no adjustment over the course of Shabbat. Rabbi Rosen ascertained that the television cameras utilized in commercially available systems, once rendered operative, continuously photograph the area within their range. Thus, entry of a person into the range of the camera causes no change whatsoever in the operation of the mechanism as, for example, would be the case were the camera to be heat or motion sensitive. However, Rambam, Hilkhot Shabbat 11:17, rules that painting a picture or creating a graphic image on Shabbat constitutes a prohibited form of \"writing.\" Accordingly, the issue is whether a person may enter the camera's optical field on Shabbat, thereby allowing his image to be \"painted\" and hence \"written\" on the screen.",
+ "In a short and succinct reply published in Teḥumin, vol. XIV (5754), Rabbi Feinstein responded that \"since this script is non-durable (eino mitkayyem) and is even inferior [to writing that is eino mitkayyem) therefore it [entering into range of the monitor] constitutes, at most, a rabbinic transgression.\" Rabbi Feinstein then concludes that, in any event, no transgression is involved since the act of producing an image on the monitor is a pesik reisha de-lo ikhpat leih, i.e., the prohibited act is an unintended effect of an entirely permissible act and the actor is indifferent to that unintended effect.",
+ "In order properly to appreciate the reasoning underlying Rabbi Feinstein's ruling it is necessary to consider it within the context of the \"double effect\" theory recognized as a halakhic principle. The Gemara, Beizah 23b, records a controversy between R. Judah and R. Simeon regarding the permissibility of dragging a bed, chair or the like along the ground on Shabbat. Although entirely unintended, there is a distinct possibility, although not a certainty, that in the process of pulling the bed or chair over the uncovered ground a hole or groove may be gouged in the ground. Intentional digging of a pit or hole in the ground on Shabbat constitutes a forbidden form of labor. R. Judah forbids the dragging of an object over uncovered ground because of fear of inadvertent and unintentional transgression. R. Simeon permits such acts on the grounds that an unintended effect does not render an otherwise permitted act impermissible. The normative rule is in accordance with the permissive view of R. Simeon.",
+ "Nevertheless, the Gemara, Shabbat 75a, declares that even R. Simeon concedes that such an act is forbidden in a case of pesik reisheih ve-lo yamut, literally, a situation in which a person severs the head of an animal from its body but does not intend it to die. Quite understandably, the Gemara expresses incredulity that a person might sever the head of an animal on Shabbat with the intention of feeding the head to a dog, of collecting its spurting blood or for some other purpose and then plead that he did not intend to cause the death of the animal. Since severing the head of the animal necessarily results in its death, intention to cause its death is imputed. Thus, an act that produces a double-effect, one permissible and the other prohibited, can be sanctioned only if the unintended but prohibited effect is not a necessary concomitant of the intended and entirely permitted act. [In fealty to the principle underlying this Shabbat regulation, the proposition should more accurately be formulated as follows: An act that is permissible when undertaken to achieve one effect, but impermissible when undertaken to achieve another effect, can be sanctioned only if the unintended effect is not a necessary concomitant of the permitted act.] Thus, Shulḥan Arukh, Oraḥ Hayyim 337:4, rules that, despite the fact that a bed may be pulled over the ground under usual conditions, nevertheless, a heavy chest or the like may not be moved in a similar manner since it is assumed that a heavy object transported in that manner will certainly gouge a hole in the ground.",
+ "The biblical prohibition attendant upon a pesik reisha, at least with regard to prohibited forms of labor on Shabbat, is limited to situations in which the person performing the act derives some benefit from the unintended effect. Thus, a person may not wash his hands in his own garden if the water dripping from his hands will fall on plants or vegetables. Intentional watering of vegetables is forbidden because it promotes growth. Hence, even washing one's hands in a manner that allows water to fall onto the ground is forbidden since the inexorable effect of water upon vegetation and the potential benefit of that effect combine to impute intention. Washing one's hands in a neighbor's garden is significantly different in that, although promotion of the growth of the vegetation is a necessary result of the act, nevertheless, the person washing his hands derives no benefit from that growth. Accordingly, if there is no actual intent to water the garden, such intent is not imputed by operation of law. Such an act is termed a \"pesik reisha de-lo niḥa leih,\" literally, \"severance of a head that provides no satisfaction to him.\"",
+ "The term \"pesik reisha de-lo niḥa leih\" is itself somewhat ambiguous in that the term \"lo niḥa—provides no satisfaction\" is employed simply to connote the absence of benefit or advantage in the resultant death of the animal but the term might erroneously be presumed to have a more restrictive meaning in denoting the certainty of a negative or deleterious impact, i.e., some, form of damage or harm that would cause the person performing the act to abjure or actively to disdain such an effect. A person may not actively desire fertilization of his neighbor's garden because he has no financial interest in his neighbor's resultant bounty but, unless he harbors biblically forbidden ill-will toward his neighbor, he has no reason to be distressed at his neighbor's good fortune in reaping an enhanced crop of vegetables. His attitude vis-à-vis that unintended result is simply that of indifference. Because of that ambiguity the term \"pesik reisha de-lo ikhpat leih—severance of a head that is of no concern to him\" is sometimes used in order to capture the correct nuance of meaning.",
+ "The eleventh-century lexicographer, R. Nathan ben Yeḥi'el of Rome, author of the Arukh, is cited by Tosafot in numerous places (Shabbat 103a; Yoma 35a; Ketubot 6a; and Keritut 26b) as ruling that the performance of an act involving a pesik reisha de-lo niḥa leih is entirely permissible. However, the weight of authority among early-day authorities is that even a pesik reisha de-lo niḥa leih is tantamount to an intentional act and hence is biblically forbidden when the act involves a transgression of any biblical commandment other than the commandment forbidding labor on the Sabbath. With regard to Shabbat restrictions another provision idiosyncratic to labor forbidden on the Sabbath must be considered, viz., the biblical prohibition is attendant only upon an act intentionally performed for a specifically proscribed purpose. When the forbidden effect is not consciously intended, the act, almost by definition, is not performed for its proscribed purpose. For example, the forbidden telos of \"digging\" is the making of a pit or a hole in the ground; removal of soil, although a necessary result, is not the effect to which this prohibition is addressed. Acts performed other than for the proscribed purpose (melakhah she-einah zerikhah le-gufah), e.g., digging because of a need or desire to obtain soil, are forbidden by virtue of rabbinic decree. Thus, on Shabbat, performance of an act of labor in the form of a pesik reisha de-lo niḥa leih is regarded by those authorities, as forbidden only by rabbinic decree.",
+ "The foregoing discussion is limited to acts having unintended effects which, were those effects intended, would be biblically forbidden. Acts of labor that are intrinsically banned only by rabbinic decree represent a different category entirely. Some authorities, including Me'iri, Shabbat 29b and 120b, Terumat ha-Deshen, no. 64, as understood by Magen Avraham and Maḥazit ha-Shekel, Oraḥ Hayyim 314:5, maintain that an act, when performed in a permissible manner, is permitted even if the unintended rabbinically forbidden effect is both a necessary result and beneficial.",
+ "Put more succinctly, those authorities maintain that a pesik reisha, even when niḥa leih, is permissible with regard to a rabbinically forbidden act. Other authorities, including Tosafot, Shabbat 103a, Beizah 23a and Bekhorot 24b; Rosh, Bekhorot 3:5; Rashba, Shabbat 120b; and Ran, Shabbat 111a, maintain that the prohibition of an act involving a pesik reisha applies even to rabbinically proscribed acts. The stringent opinion is accepted by Magen Avraham, Oraḥ Hayyim 314: 5, and Sha'ar ha-Melekh, Hilkhot Shabbat 25:24. That controversy applies to a pesik reisha de-niḥa leih, i.e., instances in which benefit is derived from the unintended effect. A third body of opinion maintains that even a pesik reisha de-lo niḥa leih is forbidden even when the underlying infraction is only rabbinic in nature while others maintain that when the underlying prohibition is rabbinic in nature and no benefit is received from the unintended effect the act is permissible.",
+ "In ruling that a person may allow his image to be captured on a closed-circuit television monitor, Rabbi Feinstein follows the permissive view that maintains that a pesik reisha de-lo niḥa leih is permissible with respect to a rabbinic prohibition. The prohibition against \"writing\" is, of course, biblical in nature, but is attenuated and becomes reduced to a rabbinically proscribed act in situations in which the writing is not durable as is the case, maintains Rabbi Feinstein, with regard to an image that appears on a television screen.",
+ "Rabbi Rosen forwarded Rabbi Feinstein's reply to Rabbi Joshua Neuwirth with the somewhat tentative comment that Rabbi Feinstein's reply reflects an inaccurate factual presumption because \"it is possible\" that \"in our case\" the unintended effect is indeed a matter of interest to the person whose image appears on the monitor and, accordingly, solicited Rabbi Neuwirth's opinion with regard to that objection. Rabbi Neuwirth demurred in deference to the already announced opinion of Rabbi Feinstein but, as will be explained, indicated that, in any event, use of such devices might be permitted because of an entirely different consideration. That exchange of correspondence is included in the same volume of Teḥumin.",
+ "Rabbi Rosen does not identify the basis for his conclusion that producing an image on the monitor may indeed be a matter of interest and benefit to the person whose image is captured. In point of fact, that concern, at least in some instances, is quite cogent. Surveillance systems in public installations and in some apartment complexes may have cameras focused upon multiple unlocked entrances with screens placed in a central location. A person monitoring the screen will take action only if he fails to recognize the individual entering the facility or if his suspicions are aroused in some manner. Alternatively, the entrances may be locked and the system designed solely to alert a guard in instances of an attempt at forced entry. In each of those cases, insofar as the person seen in the screen is concerned, the act of entering the range of the camera yields no benefit. Alternatively, such a system may be designed to enable a doorman, guard or householder to identify a person seeking to enter through a locked door so that the door may be unlocked on behalf of the person seeking admission to the premises. In the latter case, the unintended effect certainly redounds to the benefit of the person whose picture is being projected on the screen. Indeed, if the person seeking to have the door unlocked on his behalf is aware of the presence of the television camera, it may be presumed that there is actual intent on his part to be recognized by projecting his picture.",
+ "The problem is even more serious if it is the owner or householder who installed the device who allows his likeness to be reflected in the television monitor. The owner who installed the security system and allows it to remain functional over Shabbat certainly wishes the system to perform properly, i.e., to capture the image of every passer-by. The owner desires the system to be fully operative in order to prevent intruders from gaining entry and perhaps also in order to take advantage of a reduction in insurance premiums granted when security systems are in place and functional. For such a person, the picture that is produced is not an incidental and unintended effect but is actually and directly intended. A visitor or passer-by has no such concern and hence has no particular desire for the system to remain operational. Even a tenant who has not sought installation of such a device may be unconcerned with regard to issues of security and hence derive no benefit from the images produced. Such a tenant certainly derives no benefit from the projection of his own image or those of his guests.",
+ "Nevertheless, Rabbi Neuwirth reports that the late R. Shlomoh Zalman Auerbach had expressed the opinion that utilization of closed-circuit television is permissible under all circumstances because the image projected on the monitor cannot at all be considered to be encompassed within the category of \"writing.\" That observation reflects a sophisticated understanding of how a television image is actually produced. A television receiver contains a screen whose back is coated with a fluorescent compound. When an image is projected, a narrow beam of electrons bombards the back of the screen in a scanning action. Electrons emitted by a cathode-ray tube cause the coating of the screen at the other end of the tube to light up. A bright spot of light appears wherever the electrons strike the screen. The electron beam scans across the screen in horizontal lines (525 lines per picture in the United States and 625 in Europe). An illusion of motion is created by projecting between 25 and 30 separate pictures per second.",
+ "Apparently, Rabbi Auerbach did not regard images produced by electronically generated fluorescent illumination as even ephemeral \"writing\" because such a phenomenon involves neither imposition of one substance upon another nor rearrangement of an existing substance, nor does it involve etching letters upon a hard substance. This was probably also the intent of Rabbi Feinstein's categorization of the television's image as \"even inferior\" to transient or ephemeral writing. Rabbi Neuwirth adds the comment that, because such electronic phenomena do not have the halakhic status of \"writing,\" there is no problem in spelling out or erasing the Divine Name on a computer screen.",
+ "In an article published in Yeshurun, XI (Elul 5762), 727, R. Levi Yitzchak Halperin, a renowned halakhic expert in the area of electrical technology, compares the image generated by such television cameras to an image reflected by a mirror. Use of a mirror on Shabbat is explicitly permitted by Shulḥan Arukh, Oraḥ Hayyim 302:13. The basic principle is that \"writing\" that has no duration whatsoever, e.g., tracing letters in the air or on a hard, dry surface, is not within the ambit of the type of non-durable writing forbidden by rabbinic decree. Neither the image reflected in the mirror nor the image captured by the television monitor, survives the completion of the act that causes the image to appear, i.e., the image disappears upon the person's removal of himself from proximity of the mirror or from the range of the camera.",
+ "As will be shown later, R. Moshe Stern, Teshuvot Be'er Mosheh, VI, Kuntres Elektrik, I, no. 82, and VII, Kuntres Elektrik, II, no. 21, unlike other authorities, objects to use of closed-circuit television systems because of ziluta de-Shabbatta, i.e., \"demeaning the Sabbath,\" but is less than unequivocal in banning such use.",
+ "Rabbi Halperin is in fundamental agreement with those who maintain that use of a closed-circuit television camera on Shabbat for surveillance purposes is permissible. Nevertheless, in deference to the position of those authorities who disagree, Rabbi Halperin, Yeshurun, XI, 724, offers a practical solution designed to obviate the possible halakhic problem. He suggests that the camera be positioned so that it is not visible to bypassers and be set to turn itself off periodically for a brief time in order that the act of causing an image to be captured by the camera be unintended and not be in the nature of a pesik reisha.",
+ "II. Video Cameras",
+ "Other optical surveillance systems employ video cameras that continuously take pictures on videotape. Such systems are commonly used by banks both in order to deter robbers and to aid in apprehension of criminals. Video cameras are sometimes utilized in private security systems for the same purpose. The permissibility of entering a building in which a video camera is operating on Shabbat is discussed by R. Moshe Stern, Teshuvot Be'er Mosheh, VI, Kuntres Elektrik, I, no. 82 and in VII, Kuntres Elektrik, II, no. 21; R. Shlomoh Zalman Auerbach, in a responsum addressed to R. Ephraim Greenblatt and published in the latter's Rivevot Efrayim, II, no. 247; R. Isaac Liebes, Teshuvot Bet Avi, III, no. 53; and R. David Rosenberg, Ozrot Yerushalayim, no. 233.",
+ "The permissibility of allowing oneself to be photographed on the Sabbath by a conventional camera was discussed much earlier. R. Eliezer David Grunwald, Keren le-David, Oraḥ Hayyim, no. 102, recognizes that an act performed by means of gerama, i.e., only indirectly, is forbidden solely by rabbinic edict. Nevertheless, Keren le-David asserts that a photographer violates the biblical transgression against \"writing\" even though his act is indirect and in the nature of a gerama, i.e., he merely snaps the shutter of the camera and indirectly causes the film to capture an image but does not directly make a mark by impressing one substance upon another. Keren le-David maintains that an \"indirect\" act that is both instantaneous with its effect and which also produces a causal nexus by making the efficient cause come into contact with the effected medium rather than vice versa is not regarded as a gerama but as a proximate cause. That principle, he argues, explains the ruling of Magen Avraham, Oraḥ Hayyim 328:53, to the effect that placing a leech upon a patient's skin is forbidden even though unleashing a poisonous snake upon a victim does not constitute an act of capital homicide. In the first case, drawing blood is virtually instantaneous with the placement of a leech; in the second, the bite of a snake and the release of its venom is not immediate.",
+ "Interestingly, in support of that thesis Keren le-David cites a provision with regard to homicide formulated by the Gemara, Sanhedrin 77b and Hullin 16a. The Gemara declares that a perpetrator who renders his victim immobile and then opens a dam so that the release of water causes the victim to drown is guilty of a capital crime provided, according to Rashi, that the immediate gush of water is of a quantity sufficient to cause the drowning. Opening the dam is essentially the removal of a barrier and hence should be regarded as a gerama rather than a direct or proximate cause. Conventional explanations categorize the act as the direct unleashing of pent-up force inherent in the water barricaded by the dam. Rashi, and Yad Ramah, Hullin 16a, understand the terminology of the Gemara literally in categorizing the water as the assassin's \"weapon\" and in Sanhedrin 77b Rashi explains that the Gemara's definition of the water as the assassin's \"arrows\" reflects the notion that the immediate force of the water is ascribed to the person who unleashes the water as is the case with regard to a person who unleashes an arrow. In contradistinction, Keren le-David candidly concedes that the cause is indirect in nature but one which has an instantaneous effect and hence, he argues, it is because of its instantaneous effect that this is categorized as a proximate cause rather than as a gerama. Accordingly, Keren le-David points to the example of the release of dammed water as the paradigm for his thesis. Keren le-David's novel thesis asserting that an instantaneous effect is not to be regarded as produced by gerama was actually formulated much earlier by R. Joseph Saul Nathanson, Teshuvot Sho'el u-Meshiv, Mahadura Tinyana, I, no. 5, and is cited by R. Abraham Menachem Steinberg, Teshuvot Maḥazeh Avraham, I, Oraḥ Hayyim, no. 42, s.v. shuv ra'itti. Sho'el u-Meshiv, however, does not present that view as an unequivocal determination. Rather, he presents that view as a thesis the validity of which he regards as subject to doubt.",
+ "It is significant to note that a quite similar thesis with regard to the concept of gerama in association with Sabbath prohibitions is propounded by R. Chaim Ozer Grodzinski, Teshuvot Aḥi'ezer, III, no. 60, with regard to the nature of the infraction involved in switching on electric lights on Shabbat. Aḥi'ezer rebuts the argument that the act of flipping a light switch is merely a gerama by pointing to the discussion of the Gemara concerning the release of dammed water and by citing the comments of an early-day authority, Yad Ramah, Sanhedrin 77b. Aḥi'ezer then develops a thesis to the effect that any type of labor forbidden on Shabbat that is customarily performed in the mode of a gerama is biblically proscribed. That argument is formulated with regard to electric switches but is equally valid with regard to camera photography.",
+ "R. Shlomoh Zalman Braun, She'arim Mezuyanim be-Halakhah, II, 80:54, has published a letter written to him by R. Jonathan Steif in which that authority, without entering into the issue of gerama, similarly declares taking a photograph to be a biblically prohibited act of \"writing.\" R. Levi Yitzchak Halperin, Teshuvot Ma'aseh Hoshev, II, no. 10 secs. 8-11 and Yeshurun, XI, 724, regards causing one's image to be captured on a video tape on Shabbat as being among the rabbinically proscribed forms of tikkun mana or \"fashioning a vessel.\"",
+ "Although Keren le-David regards the act of taking a picture to be biblically forbidden, he apparently finds no transgression involving prohibited labor in allowing oneself to be photographed. R. Chaim Lehrman, in sec. 8 of the notes appended to his letter of approbation to R. Samuel ha-Kohen Burstein's Minḥat Yom Tov and published as an appendix to that work, states that, although a person who poses for a photograph has not performed an act of \"writing,\" it is arguable that, according to some authorities, he may be culpable for \"assisting\" (mesayei'a) in the performance of a forbidden act. Taz, Yoreh De'ah 198:21, rules that a woman immersing herself in a mikveh on Shabbat who has forgotten to cut her nails before the advent of the Sabbath may not request a gentile woman to do so for her because it would be necessary for the Jewish woman physically to \"assist\" in the act by extending and positioning her hand. In formulating that view, Taz argues that the prohibition against allowing the corners of one's beard to be cut by another person involves no more than an act of mesayei'a and serves as a paradigm for all biblical prohibitions. Shakh, in his Nekudat ha-Kesef, ad locum, in disagreeing with Taz, points to the statement of the Gemara, Shabbat 53a and Beizah 22a, declaring that with regard to Shabbat prohibitions \"assistance\" is immaterial. Taz himself, Oraḥ Hayyim 328:1, raises that issue and distinguishes between various forms of assistance. Such a distinction is explicitly drawn by both Ritva and Shitah Mekubbezet, Beizah 22a. See also R. Zevi Ashkenazi, Teshuvot Hakham Ẓevi, no. 82, who overlooks those sources in resolving the objection voiced by Shakh. Rabbi Lehrman finds support for Taz' position in a ruling of Rambam, Hilkhot Kelei ha-Mikdash 3:11, in which Rambam rules that a Levite who \"assists\" in performing a priestly service transgresses a biblical commandment and incurs the penalty of death at the hands of Heaven. Accordingly, Rabbi Lehrman asserts that \"assistance\" that is material and significant in nature is biblically forbidden. Rabbi Lehrman regards positioning oneself and posing for a photograph as no less significant a form of \"assistance\" than positioning oneself for shaving the corners of one's beard.",
+ "Keren le-David also raises the issue of \"assistance\" but dismisses the problem with the comment that a picture might be taken at precisely the same spot without anyone's cooperation. That argument, however, is subject to rebuttal on the grounds that, absent that individual's cooperation, an entirely different image would have been produced; hence, he is a mesayei'a to the act that was actually performed.",
+ "R. Isaac Liebes, Bet Avi, III, no. 53, candidly concedes that he can adduce no proof in support of his view, but nevertheless offers the opinion that there can be no culpable \"assistance\" without tactile contact. In support of Bet Avi's thesis it may be argued that Taz' position regarding a prohibition against physical \"assistance\" in a transgression is derived from the biblical paradigm of the prohibition against allowing the corners of one's beard to be shaved. The \"assistance\" in that paradigm is certainly tactile in nature.",
+ "Bet Avi further opines that \"writing\" produced other than by a hand is prohibited by rabbinic edict but not by biblical law and that with regard to rabbinically forbidden acts there is no prohibition of mesayei'a. That point is subject to dispute not only because a photograph is snapped by hand but also because writing other than with the dominant hand is not biblically forbidden because it is an \"unusual\" mode of writing whereas the picture taken by a camera is produced by means of ordinary and usual operation of the camera. Of course, the act may be only rabbinically proscribed since it may constitute an act of gerama as has been discussed earlier. Bet Avi himself draws attention to Rambam's statement in his Commentary on the Mishnah, Shabbat 103a, in contradiction to his position in the Mishneh Torah, to the effect that the category of roshem, which includes the creation of a picture or an image, is a category of labor entirely separate from writing and hence it may not be limited to drawing or painting by hand.",
+ "However, raising an entirely different consideration, Keren le-David comments: \"Nevertheless, it seems clear that there is a prohibition in the nature of 'mimzo ḥefzekha—and [you] shall honor it [the Sabbath], not doing your wont ways nor pursuing your business' (Isaiah 58:13)—which is forbidden as is made clear in [Shulḥan Arukh, Oraḥ Hayyim] 306:1 for it is no less [an infraction] than measuring as is made clear in [Oraḥ Hayyim] 306:7.\" The phrase \"mimzo ḥefzekha\" serves to bar any activity on Shabbat pertaining to \"your business,\" i.e., any activity related to commercial matters even in an indirect or preparatory manner. Thus, as spelled out by Shulḥan Arukh, ad locum, it is forbidden to survey one's property in order to plan the morrow's work, to position oneself to leave the city upon the conclusion of the Sabbath, to hire laborers or even to stroll for purposes of locating a horse, wagon, or ship in preparation for a journey to be undertaken after the conclusion of Shabbat.",
+ "It is, however, quite difficult to appreciate a comparison between any of those activities and photography. In context, Keren le-David' responsum addresses the plight of an individual who was being \"examined\" in some manner by government officials on Shabbat and was required to produce a photograph. Posing on Shabbat for a passport photo would certainly seem to be subsumed in the prohibition against making preparations for a journey on Shabbat. Similarly, posing for a photograph required by government authorities for issuing a license or for some other such purpose would also be forbidden. Although it is odd that Keren le-David does not indicate that a Jew is not permitted to undergo the government \"examination\" to which reference is made (perhaps because the Jew had no choice with regard to submitting to the interview but might have appeared without an accompanying photograph), it seems to this writer that it is only posing for a photograph for a commercial or \"weekday\" purpose to which Keren le-David objects. Allowing one's picture to be videotaped by a surveillance system neither requires any particular act on the part of the person other than those ordinarily undertaken in the enjoyment of Sabbath activities nor is the video image designed to advance a commercial or mundane interest. Hence, it seems to this writer that Keren le-David would find surveillance cameras unobjectionable.",
+ "In Be'er Mosheh, VI, Rabbi Stern begins his discussion with a citation of Keren le-David's view regarding the prohibition against taking a photograph on Shabbat. Apparently misreading this source, Be'er Mosheh implies that the prohibition devolves upon a person allowing himself to be photographed as well. For reasons that he does not attempt to explain, Be'er Mosheh maintains that a person who traverses the door of a house protected by a system that is set in place before Shabbat and which automatically photographs each passer-by is in violation of a rabbinic edict rather than of a biblical prohibition. Accordingly, in reliance upon the authorities who maintain that, with regard to a matter that is prohibited only by rabbinic edict, a pesik reisha de-lo niḥa leih is permissible, he finds no fundamental prohibition in situations in which the individual has no desire to be photographed and derives no benefit therefrom. That analysis notwithstanding, Be'er Mosheh regards the act to be forbidden for reasons of \"ziluta de-Shabbatta,\" i.e., \"demeaning the Sabbath.\" Therefore, Be'er Mosheh advises a person who lives in a dwelling in which such a system is in place and who finds himself powerless to disarm it over Shabbat to find a new dwelling. In the interim, for reasons that he does not spell out, he advises the person to \"enter the house walking backwards, or at least sideways, so that the apparatus not photograph him in the manner of making an image.\"",
+ "In his second discussion, Be'er Mosheh, VII, Rabbi Stern seems to equate video cameras with closed-circuit television systems with regard to all facets of the issue and expresses a somewhat different view. Since his concern is only because of \"dishonor of the Sabbath\" he modifies his opinion in situations in which the presence of the television monitor is not evident to passers-by or guests and in which there are no children in the house and adds, \"Perhaps even if children, young or old, are present in the home and it is possible for the master of the house to secrete the television within the house on Friday in a manner such that the children perceive nothing but he himself can see what he needs to see through a crack or the like…. Perhaps there is indeed no dishonor [of the Sabbath] even if there are children, young or old, in the house for they see such each week and know that no person does anything.\" It is, however, unclear whether or not Be'er Mosheh would have made this final comment with regard to video cameras. In any event, the many other scholars who examine this issue do not object to use of surveillance systems on the basis of \"demeaning the Sabbath.\"",
+ "Rabbi Liebes permits video surveillance in reliance upon the earliercited view that allowing oneself to be photographed involves only a rabbinic prohibition because he takes it for granted that the benefit is not only unintended but is actually disdained. Accordingly, he regards the act as a pesik reisha de-lo niḥa leih with regard to an otherwise rabbinically proscribed act and rules that such an act is permissible. Nevertheless, he notes that each of those points is subject to dispute and accordingly he counsels that a God-fearing person should not enter a building protected by such a system and certainly should not do so on an ongoing basis.",
+ "R. Shlomoh Zalman Auerbach permits utilization of a video surveillance system for the most fundamental of reasons. In order to elucidate Rabbi Auerbach's ruling it should be noted that when a camera snaps a picture no discernible image is generated on the film. The picture emerges only when the film is developed. Accordingly, taking the picture can hardly be a form of writing. Rabbi Auerbach notes that a person who employs disappearing ink in writing on Shabbat is culpable but declares that this is so only because the writing is discernible as script for at least a very brief period of time and the writing can be retrieved and made to reappear if the requisite procedures are employed. Not so with the case of a photograph since, at the time the picture is taken, nothing appears on the film. Rabbi Auerbach adds, albeit without evidence, that it is \"reasonable\" (mistaver) to assume that even \"writing\" of that nature is forbidden by rabbinic decree. Nevertheless, he permits a guest to enter a building protected by a video surveillance system because the \"writing\" is carried out in an unusual way (ke-le-aḥar yad) coupled with the consideration that, since the image \"is desired only by the homeowner but not by the person who enters,\" the act represents a pesik reisha de-lo niḥa leih.",
+ "As noted earlier, it is not clear to this writer that photography represents an \"unusual\" act. Nevertheless, since no image is created at the time a photograph is taken, there is reason to question whether capturing a picture on film is prohibited even by rabbinic decree. Moreover, in the final analysis, insofar as a person who derives no benefit from the surveillance system is concerned, the vast majority of rabbinic authorities permit a pesik reisha de-lo niḥa leih with regard to an act involving an underlying rabbinic prohibition and would permit such a person to enter a building protected by an optical surveillance system.",
+ "The earlier described expedient suggested by Rabbi Halperin with regard to the positioning and setting of closed-circuit television systems is also recommended by him for implementation in conjunction with use of video cameras on Shabbat.",
+ "III. Motion Detectors",
+ "Another mode of surveillance involves use of a motion detector that causes lights to turn on when the movement of a person is detected. In isolated areas the resultant illumination prevents intruders from breaking and entering under cover of darkness and at the same time serves to provide a measure of physical safety for persons who would otherwise be entering the house or passing down the street in the dark. Motion detectors are also used in many public buildings, schools, offices, etc. in order to economize on electricity. In some locales installation of such devices in newly constructed buildings is mandated by law as a conservation measure. Motion detectors may employ either passive infrared or ultrasonic technology. Passive infrared technology operates by detecting the difference between infrared energy emitted by a heat-emitting object, e.g., a human body in motion, and the background space. Ultrasound technology uses the Doppler principle and high frequency ultrasound to sense motion within its range. The two technologies may be combined in what is known as dual sensing verification in order to eliminate false triggers.",
+ "The permissibility of entering areas on Shabbat in which electric lights are controlled by motion detectors was first addressed by the late British rabbinic authority, R. Chanoch Dov Padwa, Heshev ha-Efod, III, no. 83. Further discussions by R. Moses Kessler, R. Samuel ha-Levi Woszner, author of Teshuvot Shevet ha-Levi, R. Abraham David Horowitz of Strasburg and R. Yochanan Woszner of Montreal appear in the II Adar 5757 issue of Or Yisra'el. A further item addressing this issue in the form of a letter to the editor by R. Eliezer Falk of Jerusalem was published in the Sivan 5757 issue of the same journal.",
+ "Rabbi Padwa permits ordinary activity in the presence of such devices in reliance upon two separate considerations: 1) the permissive view of the Arukh with regard to a pesik reisha de-lo niḥa leih; 2) the view of Rashba, cited by Magen Avraham, Oraḥ Hayyim 316:11, permitting a person to close the door of a room in which a deer has sought refuge on Shabbat even though, as a result of closing the door, the deer will be \"captured.\" Although neither of those positions is accepted by the codifiers of Halakhah, Rabbi Padwa nevertheless asserts that, taken in combination, they may be relied upon.",
+ "Rabbi Padwa's assumptions are subject to challenge on a number of counts. Rabbi Kessler and Rabbi Horowitz both note that, in point of fact, the illumination is niḥa leih, i.e., the light provides a direct benefit and would presumably be welcomed if not for the possible Sabbath infraction involved. Rabbi Yochanan Woszner, however, asserts that a person may indeed not wish his coming and going to be observed by all and sundry and, when the system is designed to thwart intruders, others may be discomfited by the feeling that light is made to shine upon them because they, too, are under a cloud of suspicion.",
+ "Rashba's permissive view with regard to the unintended \"capture\" of a deer may represent acceptance of the position of the Arukh regarding a pesik reisha de-lo niḥa leih. Alternatively, Rashba's ruling may reflect a unique consideration limited to the notion of \"capture\" or be otherwise limited to the case discussed by Rashba. R. Iser Zalman Meltzer, Even he-Azel, Hilkhot Shabbat 1:5-7, s.v. u-be-ikar, for example, explains that, as a halakhic category, \"capture,\" by definition, must be intentional and therefore an animal unintentionally trapped in a room is not \"captured.\" Rabbi Horowitz notes that some authors have distinguished the capture of a deer by closing a door from other forms of pesik reisha on the basis of the fact that no act is performed upon the deer itself.",
+ "There may, however, be additional considerations that would serve to permit use of motion detectors. Many authorities, including R. Shlomoh Zalman Auerbach, Minḥat Shlomoh, I, no. 10, sec. 6, s.v. vegam, rule that an otherwise forbidden pesik reisha is permitted when the act is carried out indirectly. However, as noted earlier, many authorities regard all instantaneous effects as direct rather than indirect.",
+ "Rabbi Samuel Woszner, both in his contribution to Or Yisra'el and in his Teshuvot Shevet ha-Levi, III, nos. 41 and 97, develops a rather novel thesis in explaining that not every pesik reisha de-lo niḥa leih is forbidden. A person who severs the head of an animal performs an act upon the animal that causes the animal to die; death of the animal is a change in the animal directly related to the act of severing the head. Similarly, a person who pulls a heavy object along the ground creates a change in the ground by making a hole. Although those acts are forbidden, Rabbi Woszner argues that, if an act is itself ordinary, usual and innocuous and in no way modified on account of, or physically connected to, the prohibited effect, the act is not forbidden even though it necessarily results in a prohibited effect. Stated in other terms, Rabbi Woszner argues that pesik reisha in the nature of an unintended epiphenomenon not contiguous to the act performed is not prohibited.",
+ "Rabbi Kessler states, not without reason, that he does not understand the distinction formulated by Rabbi Woszner. This writer would express the distinction in a somewhat different manner. As stated by the Gemara, Shabbat 120b, the verse \"you shall not do any work on the Sabbath day\" (Exodus 20:8) serves to establish that labor is forbidden on Shabbat only if the labor is performed by means of a physical \"act\" (ma'aseh). A physical act is generally defined as an act involving movement of the body.",
+ "Moreover, not every muscular movement rises to the level of a ma'aseh. A sin-offering is brought in expiation of certain sins but only if they are committed by performance of an \"act.\" The Gemara, Sanhedrin 65a, posits a controversy between the Sages and R. Akiva with regard to whether unwitting blasphemy requires such a sacrifice. The crux of the controversy is whether or not the act of \"curling the lips\" that is necessary for the fashioning of speech constitutes a ma'aseh. Similarly, the Gemara, Makkot 2b, explains that bearing false witness is not punishable by lashes because mere speech does not constitute a physical act. The Gemara, Bava Mezi'a 90b, records that movement of the lips that produces a tangible physical effect, e.g., a shouted command to animals of different species harnessed together that causes them to move or a vocal order designed to prevent an animal from eating while the animal is engaged in threshing, is regarded by R. Yoḥanan as a punishable offense. Resh Lakish, however, disagrees because he regards the de minimis movement of lips to be below the threshhold level of movement that constitutes a ma'aseh.",
+ "Definition of a ma'aseh as an act involving movement of the body is reflected in a discussion of the Gemara, Bava Kamma 10b, particularly as elucidated by Tosafot, Bava Kamma 10a, s.v. kegon, regarding a person who breaks an object by means of the sheer weight of his body rather than through physical movement. The case discussed involves a number of people seated upon a bench. In initially seating themselves upon the bench they did no harm. However, an additional person sat himself upon the bench with them and the combined weight of all those seated on the bench caused it to collapse. Tosafot cite the position of Rabbeinu Tam who maintains that those previously seated are equally liable together with the last person to seat himself upon the bench who thereby provided the proverbial straw that broke the camel's back. In reflecting upon Rabbeinu Tam's position, it is obvious that the original occupants are not culpable for having seated themselves on the bench since that act yielded no harm. They can be culpable only for failing to rise when the weight became too great for the bench to withstand. But failure to rise is passive in nature and should not give rise to tort liability. Culpability must then result from the fact that an \"act\" effected by sheer weight is deemed to be tortuous. Indeed, the Gemara, Bava Kamma 27a, declares that a person who causes harm simply as a result of being blown off a roof by the wind is liable for damages. Apparently, movement is not a necessary condition of an \"act\" but the effect of body weight certainly must be regarded as the outer limit of what may be defined as an \"act.\"",
+ "It is clear from the comments of Rabbeinu Tam that the power generated by sheer mass constitutes an \"act.\" However, the effect of the force of body weight is readily distinguishable from other effects created by the mere presence of a body. Thus, for example, \"labor\" effected by body heat triggering a heat detector, according to this analysis, would not constitute an \"act\" since causal effects of body heat do not arise from a ma'aseh. Similarly, motion detectors do not produce their desired effect by virtue of force exerted by the body but because of their sensitivity to a change taking place in the person. To put the matter in somewhat different terms, it is not force produced by motion that causes the effect but the apparatus' ability to discern that the person has moved from one spot to another by sensing the presence of body heat and/or the reflection of imperceptible ultrasound waves that yields the effect. Such a phenomenon, it may be argued, does not rise to the threshold level of a ma'aseh. Put more colloquially, a person's mere existence does not qualify as a ma'aseh and, accordingly, any labor caused by a person's mere existence is not prohibited on Shabbat. If this analysis of the notion of ma'aseh is correct, there could be no prohibition in the purely passive act of allowing oneself to be photographed on Shabbat.",
+ "There is, however, at least one authority among early-day decisors who maintains that a forbidden act of labor performed entirely passively by the body is forbidden when such an effect is directly intended. Teshuvot ha-Rashba, IV, no. 74, cited by Bet Yosef, Oraḥ Hayyim 308:46, addresses the practice, apparently prevalent in his time, of women placing silkworms under their armpits to hatch. Rashba forbids the practice on the Sabbath, both because the worms are mukzah and also because causing the worm to hatch is forbidden. In the preamble to his responsum, Rashba notes that \"although [the activity] does not constitute an actual act of labor (she-einah melakhah mamash), nevertheless, it is intentional labor\" and concludes with the statement that intentional employment of body heat to effect an act of labor is forbidden. Rashba apparently regards utilization of body heat to perform an act of labor to be forbidden, perhaps by rabbinic decree, even though the act is entirely passive and hence \"not an actual act of labor\" but regards such conduct to be forbidden only when the effect is caused intentionally.",
+ "It seems to this writer that the concept that an act passively performed does not constitute a biblically forbidden form of labor is inherent in the commentary of Ralbag to Exodus 20:9. Ralbag states, \"It is further clear that eating is not [a forbidden form of] labor; rather it enters into the category of natural acts for all living creatures perform this act.\" Ralbag's comments, if taken literally, are problematic, to say the least. Trapping or capturing animals is a forbidden form of labor on Shabbat despite the fact that it is an activity in which brute animals also engage. Suckling a lactating animal is a form of expressing milk that is forbidden of Shabbat despite the fact that animals also obtain milk by nursing.",
+ "Ralbag may, however, be understood as asserting that any natural act performed in common with lower animals does not constitute a form of labor provided that the act is final rather than instrumental in nature. Eating is clearly such an act. Capturing an animal, when carried out by a human being, is far different from capture of one animal by another. The animal consumes its prey immediately; a man does not. For man, the normal way for obtaining milk is by a process of manual milking, an act that is only preparatory to drinking the milk, as opposed to an act of suckling in which the purpose is achieved immediately. It therefore stands to reason that activities yielding effects produced as a result of entirely usual human and animal function, e.g., locomotion and the giving off of body heat, and not designed for any further purpose should not be among activities forbidden on Shabbat.",
+ "Rabbi Kessler finds yet additional grounds to permit use of motion detectors to provide external illumination. A person passing through an area protected by sensory devices may be certain that the lights will go on but it is entirely unlikely that he will know which particular step will trigger the lights. Therefore, each discrete step constitutes a doubtful pesik reisha. Such a situation is comparable to another scenario discussed by earlier sources. In the case of a box housing flies from which many, but possibly not all, the flies have been observed to exit, Taz, Oraḥ Hayyim 316:3, rules that it is not necessary to examine the inside of the box before placing a lid upon it despite the fact that it is possible that some flies may remain in the box. If that were so, placing the lid upon the box and thereby preventing any remaining fly from escaping would constitute a prohibited act of \"capture.\" Since there is no intent to capture and it is doubtful that there are any flies in the box that might be captured, the act constitutes a merely doubtful pesik reisha. Accordingly, Taz permits the closing of the box. Taz maintains that intent cannot be imputed in cases of empirical doubt and hence rules that a doubtful pesik reisha is an entirely permissible davar she-eino mitkaven. Mishnah Berurah, Bi'ur Halakhah 316: 3, s.v. ve-lakhen, cites a number of early-day authorities whose comments evidence their espousal of an identical view. That view, however, is not universally accepted.",
+ "One aspect of the operation of outdoor motion detectors seems to have evaded all of these scholars. Unlike indoor motion detectors which are designed to cause lights to go on virtually instantaneously, outdoor motion detectors generally have a delayed time feature. The purpose of a built-in time delay is to prevent even minimal motion or momentary vibration unlikely to have been produced by a human being from triggering the mechanism that causes the lights to go on and off. Depending upon the particular device, the delay may be as brief as fifteen seconds and as long as thirty minutes. When there is a time delay effected by a timer, the act triggering the mechanism does not directly cause the lights to turn on. Instead it causes the timing device to wait a pre-determined period of time and, upon expiration of that time period, a separate action effected by the timing device turns on the lights. An act that generates a second act in order to create an effect has the halakhic status of a gerama. Rema, Oraḥ Hayyim 334:22, permits an act performed in the manner of gerama only for a \"great need.\" However, Taz, Oraḥ Hayyim 334:6, permits an act in the form of gerama for even a less serious need. Other authorities, it must be remembered, permit a pesik reisha with regard to all rabbinic prohibition and hence those authorities would permit a pesik reisha performed by means of gerama.",
+ "Rabbi Falk expresses the view that, even if motion sensitive systems may not be intentionally used on Shabbat, a person about to enter the range of a detector need not be cautioned that by doing so he will cause a light to go on. Inadvertent and unknowing tripping of the switch, he contends, involves no Sabbath infraction whatsoever. That thesis is based upon the definition of shogeg, i.e., inadvertent transgression, insofar as Shabbat laws are concerned. An act of inadvertent Shabbat transgression for which a sacrifice in expiation of sin is required is defined as a forbidden act of labor performed by a person who is either unaware that such an act is forbidden or is unaware that the day on which the act is being performed is actually the Sabbath day.",
+ "A person who knows full well that it is Shabbat and is also fully aware of the forbidden status of the act but is ignorant with regard to the physical nature of the act he is performing is not a shogeg. Thus, a person who cuts a fruit or vegetable in the belief that it has already been plucked from the ground only to discover after the act was performed that it was still attached at the time of cutting is not a shogeg. A person performing such an act is termed a \"mitasek\" rather than a \"shogeg\" and is not required to offer a sacrifice for purposes of expiation. R. Jacob of Lissa, Mekor Hayyim, Oraḥ Hayyim 431, maintains that an act committed in the form of mitasek is entirely innocuous and requires no atonement whatsoever. Thus, according to Mekor Hayyim, a person who knows that the fruit or vegetable is still attached to the ground need have no compunction in directing someone who mistakenly believes it to have been severed from the ground to cut the fruit or vegetable since the person who performs that act commits no infraction whatsoever. R. Akiva Eger, both in Teshuvot R. Akiva Eger, no. 8 and in his Hiddushei R. Akiva Eger, Bava Kamma 26b, disagrees and maintains that, although the infraction is less serious than a shogeg and requires no sacrificial expiation, it nevertheless constitutes a transgression for which atonement is necessary.",
+ "Rabbi Falk argues that, even according to R. Akiva Eger, an infraction occurs only when the person at least intends to perform an act of cutting but is ignorant of the status of the object he is cutting. However a person who does not at all intend to cut any object incurs no infraction if he severs a plant still attached to the ground because such an act is mindless and totally unintended and hence is not a melekhet maḥashevet, i.e., a \"mindful act.\" A person acting in that manner is ignorant not merely of incidental details and circumstances surrounding his act but is ignorant of the very nature of the act. R. Akiva Eger concedes that such an act, when performed on Shabbat, is not a melekhet maḥashavet and entails no biblical violation. R. Akiva Eger, however, acknowledges that an otherwise prohibited act that is not performed as a melekhet maḥashevet is prohibited by rabbinic edict. Applying this principle to motion detectors, it is evident that a person who is ignorant of the presence of the detector is totally unaware of the nature of his act and hence his situation is comparable to that of a person who has no intention at all to cut fruit.",
+ "A similar point is made, albeit tentatively, by R. Shlomoh Zalman Auerbach, Minḥat Shlomoh, I, no. 91, sec. 9, s.v. bram. Rabbi Auerbach further suggests that an act in the nature of mitasek that produces a forbidden effect only in the form of a pesik reisha de-lo niḥa leih is entirely innocuous even according to R. Akiva Eger. Rabbi Auerbach argues that the rabbinic prohibition attendant upon a mitasek does not apply when the proscribed result occurs only in the nature of a pesik reisha de-lo niḥa leih. The example he gives is that of a person who opens a refrigerator door on Shabbat on the assumption that the electric bulb has been removed. The act is clearly a mitasek since the person opening the door has no knowledge of the presence of a functioning light bulb. Causing the light to go on constitutes a pesik reisha since the person's intention is only to open the door but not to release the button controlling the light. A person who is intent only upon walking in a certain area and is unaware of the presence of a motion detector is a mitasek and the unintentional effect of the light being turned on is a pesik reisha of that mitasek."
+ ],
+ "Chapter V Use of Automatic Telephone Answering and Fax Machines on Shabbat": [
+ "Reflect upon three things and you will not come to sin: Know what is above you—…an ear that hears….",
+ "AVOT 2:1",
+ "The propriety of the use of a fax machine on Shabbat has been the subject of numerous discussions over the course of the past decade or so. The question has been addressed by R. Baruch Leizerowsky, Ha-Pardes, Iyar 5750; R. Pinchas Abraham Meyers, Chief Rabbi of the Hague, Ha-Pardes, Tishri 5751; R Israel Meir Lau, the former Ashkenazic Chief Rabbi of Israel, Teḥumin, vol. XII (5751); R. Levi Yitzchak Raskin of London, Oholei Shem, Elul 5751; R. Shlomoh Yitzchak Birnbaum, Ha-Ma'or, Tishri-Heshvan 5754; R. Meir Brandsdorfer, Mevakshei Torah, vol. 2, no. 8 (Tishri 5754); R. Shimon Moshe Diskin, Mevakshei Torah, vol. 2, no. 9 (Heshvan 5754); R. Yisra'el Pesach Feinhandler, Oraita, vol. XVII (5756); R. Yechezkel Grubner, Knesset Yeḥezkel (Jerusalem, 5756), nos. 25-27; R. Mordecai Savitsky, Or Yisra'el, II Adar 5759; and R. Ya'akov Shlomoh Moseson, Or Yisra'el, Tishri 5759, as well as by R. Chanoch Dov Padwa, Teshuvot Heshev ha-Efod, III, no. 86 and R. Isaac Liebes, Teshuvot Bet Avi, V, no. 75. A brief treatment of this question is also presented by R. Meir Just, formerly Chief Rabbi of Amsterdam, in chapter three of a recently published slim volume of responsa entitled Imrei Me'ir (Amsterdam, 5760).",
+ "Use of telephone answering machines on the Sabbath, a matter that involves essentially the same issues, has previously been addressed by R. Ya'akov Breisch, Teshuvot Helkat Ya'akov, III, no. 94; R. Yitzchak Ya'akov Weisz, Teshuvot Minḥat Yizhak, V, no. 14; R. Isaac Liebes, Teshuvot Bet Avi, II, no. 54 and IV, no. 69; R. Moshe Stern, Teshuvot Be'er Mosheh, VI, no. 3; and R. Samuel ha-Levi Woszner, Teshuvot Shevet ha-Levi, V, no. 28. Both issues are discussed by R. Abraham David Horowitz, Kinyan Torah be-Halakhah, VI, no. 17.",
+ "While in the assessment of this writer the weight of rabbinic opinion permits use of these devices, the published discussions merit analysis. Those discussions focus upon a variety of issues concerning Sabbath laws that are themselves both interesting and significant.",
+ "I. Problems in Connecting the Device",
+ "1. Forbidden Labor",
+ "In Helkat Ya'akov, III, no. 94, Rabbi Breisch expresses tentative willingness to permit use of an answering machine provided it is not set on Friday for use on Shabbat. Rabbi Weisz, Minḥat Yizḥak, V, no. 14, similarly finds the use of an answering machine to be somewhat problematic if it is specifically connected in order to operate on Shabbat. As recorded in Shulḥan Arukh, Oraḥ Hayyim 265:4, it is forbidden to place water in an oil lamp before Shabbat so that the flame will be extinguished upon reaching the water during Shabbat. Helkat Ya'akov's concern is that use of an electric answering machine on Shabbat entails creation and extinguishing of sparks. Despite the fact that in Helkat Ya'akov, I, no. 49, R. Breisch permits use of an automatic timer to turn electric lights on and off on Shabbat, he asserts that such use of a timer is permitted only for the \"honor\" and \"delight\" of Shabbat but not for other purposes.",
+ "Assuming that sparks are indeed generated in the course of completing electric circuits in such an apparatus, Helkat Ya'akov's reasoning is nevertheless difficult to follow. Connecting the answering machine is not at all the proximate cause of extinguishing sparks on Shabbat as is the case with regard to placing water in a lamp so that the water will extinguish the flame. The sparks produced by an answering machine are caused, not in the act of attaching or setting the machine, but by the person telephoning on Shabbat. Moreover, Helkat Ya'akov concedes that, once the answering machine has been attached for use during the week, it need not be disconnected before Shabbat. Accordingly, use of such a machine should always be permitted since it is certain that the answering device will perforce be connected some time before Shabbat and thus is designed to answer any incoming call from the moment of connection.",
+ "Rabbi Horowitz, Kinyan Torah be-Halakhah, VI, no. 17, cites a highly novel comment of Hatam Sofer in the latter's novellae on Shabbat 18a on the basis of which he forbids the use of both automatic answering and fax machines. Although a Jew need not be concerned that his utensils \"rest\" on the Sabbath, Hatam Sofer asserts that this is only the case when the utensil performs an act of labor without human assistance. However, argues Hatam Sofer, a Jew may not permit his property to be utilized in conjunction with an act of labor performed on Shabbat by a person even if that act of labor is performed by a non-Jew. Since answering and fax machines are designed to perform acts of labor initiated by the caller or the sender of the fax, use of such devices is inconsistent with the thesis advanced by Hatam Sofer.",
+ "2. Placing a Stumbling Block",
+ "Minḥat Yizḥak, V, no. 14, suggests that utilization of an answering machine may be tantamount to \"placing a stumbling block before the blind\" since a non-observant Jew may leave a message on the Sabbath. Pri Megadim, Oraḥ Hayyim, Eshel Avraham 443:5, citing Mishneh le-Melekh, Hilkhot Kela'im 1:6, asserts that, according to Rambam, when removal of a stumbling block is feasible, even passive non-intervention constitutes a transgression of that prohibition. A recording directing the person telephoning to leave a message is an even more direct placement of a stumbling block. Nevertheless, Minḥat Yizḥak finds no reason to forbid use of an answering machine on that account. He regards the matter as comparable to a person who proffers a glass of wine while both he and the Nazarite are standing on the same bank of a river. Since the Nazarite could reach the wine himself if he so desired, the act of handing the wine to him is proscribed only by virtue of rabbinic edict. Similarly, Minḥat Yizḥak presumably reasons that since there is no actual facilitation of the performance of a forbidden act, any assistance rendered is only rabbinically prohibited. Such assistance, argues Minḥat Yizḥak, is rabbinically proscribed only when it is a certainty that it will aid a transgressor. Accordingly, since it is not at all clear that a Jew will telephone on Shabbat, Minḥat Yizḥak permits use of an answering machine to record telephone messages over the course of Shabbat. Shevet ha-Levi, V, no. 28 and Bet Avi, II, no. 54 and IV, no. 69, similarly find no problem with the use of an answering machine on Shabbat.",
+ "The issue of \"placing a stumbling block before the blind\" is dismissed for a more fundamental reason by Rabbi Feinhandler in his contribution to Oraita. The prohibition, argues Rabbi Feinhandler, is limited to physically assisting another individual in committing a transgression or in proffering a forbidden substance to another person for purposes of transgression. A person performing an act or acquiring an object for his own benefit is not placing a stumbling block before another; rather, the second party who improperly seizes something not intended for him creates his own stumbling block. The fax machine is connected for the benefit of its owner and made available to non-Jews for their use. Accordingly, unauthorized and undesired use by a Jew does not reflect a violation of the prohibition against placing a stumbling block before the blind. The effect of Rabbi Feinhandler's argument is to render use of a fax machine permissible even in situations in which a Jew has indicated in advance his intention to send a fax on Shabbat. Rabbi Grubner, Knesset Yeḥezkel, no. 26, sec. 4, similarly remarks that there is no transgression of the prohibition in a situation in which \"the Nazarite comes to the house of his friend and of his own accord takes wine.\"",
+ "3. The Pre-Recorded Message",
+ "Use of a fax machine to receive fax messages on Shabbat in the conventional manner involves an additional problem. The generation of a fax message involves an act of \"writing.\" A directive even to a non-Jew to perform a forbidden act on Shabbat for the benefit of a Jew is forbidden. Thus, a pre-recorded message directing the caller to transmit the fax might constitute a directive to perform a forbidden act. Nevertheless, once it is established that the fax machine need not be disconnected, it seems to this writer that a pre-recorded message indicating that a fax can be sent is not a directive to the caller to perform that act on Shabbat. Hence, the caller who sends a fax on Shabbat does so at his own discretion at a time when the act cannot be prevented by the Jewish recipient.",
+ "4. Noise Emitted by the Device",
+ "Rabbi Feinhandler considers the possibility of a problem posed by the fact that a fax machine, when connected, may emit a faint humming sound. Rema, Oraḥ Hayyim 252:5 rules that kernels of wheat may not be placed in a water mill to be ground over the course of Shabbat without further human involvement because a person hearing the noise generated by the grinding will suspect that the Jew is manually grinding wheat on Shabbat. Bet Avi, V, no. 75, expresses concern for \"degradation of the Sabbath\" (ziluta de-Shabbatta) and permits use of a fax machine only if it is kept in a locked room so that receipt of a fax will be neither heard nor seen. Rabbi Feinhandler notes that noise quite similar to that produced by a fax machine is also emitted by a refrigerator and dismisses the problem with the observation that the prohibition is limited to situations involving loud noise clearly audible from a distance. It should also be noted that Rema explicitly permits use of a clock that announces the time \"since everyone knows that the practice is to prepare it the day before.\" The same is certainly true of appliances such as refrigerators and fax machines that remain in constant operation.",
+ "5. Additional Considerations",
+ "Helkat Ya'akov expresses disapproval of use of telephone answering machines on Shabbat, particularly when used for business purposes. Helkat Ya'akov somewhat tentatively suggests that the mere fact that some commercial affairs are conducted on Shabbat, albeit automatically and without any human involvement, is forbidden according to Ramban's interpretation of the positive commandment of shabbaton as presented in the latter's commentary on Leviticus 23:24. Ramban develops the thesis that the commandment to observe a day of rest generates restrictions beyond those established by the prohibition of specific forms of labor. Ramban notes that a person might engage in normal mundane activities the entire Sabbath day without committing an infraction involving transgression of the prohibition against forbidden forms of labor. Accordingly, declares Ramban, the commandment with regard to observing a day of rest is designed to assure that the day be \"a day of repose and rest, not a day of travail.\" Although Ramban's comments refer only to human activities that are mundane in nature, Helkat Ya'akov seeks to interpret them as encompassing anything that would mar the spirit of the day.",
+ "Helkat Ya'akov further asserts that such matters constitute prohibited \"weekday activities.\" Helkat Ya'akov also contends that, in the eyes of the untutored, use of such devices also appears to involve activities prohibited on Shabbat. Moreover, Helkat Ya'akov regards such matters as a violation of the commandment to \"Remember the Sabbath day to keep it holy\" (Exodus 20:8) that mandates that \"your actions on Shabbat shall not be as [your actions] on a weekday.\" Those comments are cited with apparent approbation by Minḥat Yizḥak. Shevet ha-Levi, on the other hand, dismisses the notion that the use of an answering machine on Shabbat might constitute a prohibited form of commercial activity with a reductio ad absurdum: Were use of answering machines forbidden, making a mailbox available for delivery of mail on Shabbat should also be forbidden for the identical reason.",
+ "Rabbi Brandsdorfer goes even further in asserting that even if it is certain that no fax will be received on Shabbat the machine should nevertheless be disconnected. In support of that extreme view he cites the terminology employed by Mekhilta, Ki Tissa, parashah 1. The Mekhilta declares that Shabbat enhances the holiness of Israel. By virtue of the fact that a Jew's \"store is closed on Shabbat … he testifies that [God] created His universe in six days.\" Rabbi Brandsdorfer asserts that disconnecting a fax machine similarly constitutes such testimony.",
+ "A number of other rabbinic writers who have addressed this question also advise against use of such devices, albeit for reasons that are less than compelling. Rabbi Grubner notes that R. Moshe Feinstein, Am ha-Torah, no. 9 (5739), reprinted in Iggerot Mosheh, Oraḥ Hayyim, IV, no. 60, expressed grave reservations with regard to use of automatic devices on Shabbat. However, that view has not been widely accepted among halakhic decisors. Automatic transmission of a fax message on Shabbat is also forbidden by Rabbi Birnbaum, in his article in Ha-Ma'or. In his brief contribution to Or Yisra'el, Rabbi Savitsky recognizes that the practice is permissible but declares that such is not the wont of the pious. Citing Helkat Ya'akov's earlier discussed remarks with regard to telephone answering machines, Rabbi Raskin, in his article in Oholei Shem, observes that their use would serve to denigrate the sanctity of the Sabbath. In his contribution to Ha-Pardes, Rabbi Meyers concedes that there are grounds to permit a fax machine to remain operational over Shabbat but nevertheless advises that the machine be turned off since allowing it to remain connected may lead to serious transgression. Rabbi Padwa, Teshuvot Heshev ha-Efod, III, no. 86, comments cryptically that any person who employs a fax machine on Shabbat will \"undoubtedly … come to severe transgressions.\" However, even were there to be cogent concern with regard to possible transgression, in the absence of a statutory basis, the practice may only be discouraged but should not be banned. Taken collectively, the considerations addressed by these writers serve at most to establish grounds for eschewing use of such devices as a pietistic practice but fall short of establishing a normative prohibition.",
+ "II. Transmission over Different Time Zones",
+ "It is also permissible to transmit a fax before or after Shabbat even though it is Shabbat in the locale in which the fax is received, provided that transmission of the fax will not lead to desecration of the Sabbath on the part of the recipient. In addition to the earlier-cited authors that question is also addressed by R. Shlomoh Wahrman, She'erit Yosef, VI, no. 4, published as an appendix to his Orot Hag ha-Sukkot (New York, 5760) and is briefly noted by R. Ben-Zion Abba Sha'ul, Or le-Ẓion (Jerusalem, 5747), I, Oraḥ Hayyim, no. 14. The basic principle is that forbidden forms of labor are prohibited only when the physical act is performed on Shabbat. Thus, to take the classic example addressed by Nimukei Yosef, Bava Kamma 23a, a person may light a candle on Friday even though it will continue to burn on the Sabbath, since the act of kindling is performed on a weekday. For the same reason Shulḥan Arukh, Oraḥ Hayyim 252:5, rules that one may open an irrigation canal on Friday and allow the water to flow through the garden on Shabbat. Similarly, a physical act performed in a locale in which it is a weekday, even though its effect is actualized in a locale in which it is Shabbat, is entirely permissible.",
+ "Although it is clearly permissible to send a fax before or after Shabbat to a locale in which it is Shabbat, Rabbi Brandsdorfer, Mevakshei Torah, vol. 2, no. 8, questions whether the fax may be read by the recipient. Rabbi Brandsdorfer draws an analogy to the situation of a person who lives in the Diaspora who must observe the second day of Yom Tov even when visiting Erez Yisra'el. According to most authorities, such a person may not derive benefit from an act that he himself may not perform but which is performed on his behalf by a resident of Erez Yisra'el for whom the day is not Yom Tov.",
+ "Responding in the following issue of Mevakshei Torah, Rabbi Diskin, a rosh yeshivah at Yeshivat Kol Torah and the author of Mas'at ha-Melekh on the Rambam's Mishneh Torah, cogently distinguishes between the two situations. For the resident of the Diaspora the second day of Yom Tov is a day on which forbidden forms of labor may not be performed. Hence any labor performed on that person's behalf was performed on a day that, for that individual, is Yom Tov. The recipient of a fax on Shabbat sent from a locale where it is not Shabbat derives benefit from an act performed in a place in which it is not Shabbat for anyone. For all persons, Shabbat is determined by the beginning and end of the seventh day at a particular latitude and longitude. There are no restrictions upon acts performed at that locale when it is not Shabbat in that place. Shabbat at any place on the globe is determined by local time even for a person who is not physically present in that locale.",
+ "III. Mukzah",
+ "Although allowing a fax machine to remain operative over Shabbat is permitted by most of the scholars who have addressed the issue, on first analysis it would seem that a fax that is received on Shabbat is mukzah and hence may not be moved or handled on Shabbat. All writing paper is mukzah by virtue of the fact that such paper is designed exclusively for a use that is forbidden on Shabbat, i.e., the paper will not willfully be used for any other purpose because any other use would constitute economic waste (mukzah maḥamat ḥisaron kis). Since an item that is mukzah between sunset and dark is mukzah the entire day, it should follow that the paper on which the fax message is received is mukzah for the entire Sabbath day. That is, indeed, the position espoused by Rabbi Lau, Teḥumin, vol. XII, and Rabbi Grubner, Knesset Yeḥezkel, no. 27, sec. 1.",
+ "Shulḥan Arukh ha-Rav, Oraḥ Hayyim 308:6, regards writing paper as mukzah, for yet another reason. In order to use any object on Shabbat it must be \"prepared\" for use in advance, i.e., the object must have some utilitarian purpose before the onset of Shabbat. Any item that has no utilitarian purpose, e.g., a stone or a piece of wood, is mukzah unless designated in advance for some permitted use, e.g., as a doorstop. Despite the fact that, on weekdays, writing paper has a highly significant practical purpose, nevertheless, with the advent of Shabbat, since the paper may no longer be used for writing, writing paper loses all utilitarian value. Accordingly, Shulḥan Arukh ha-Rav regards the status of writing paper on Shabbat to be identical to that of stones or pieces of wood.",
+ "However, writing in Or Yisra'el, Rabbi Moseson argues that neither consideration applies to fax paper and hence that fax paper is not mukzah. Assuming that the fax machine may remain connected over Shabbat, the owner of the machine anticipates, and indeed desires, that the paper in the machine be used for a legitimate beneficial purpose over the course of Shabbat. Hence the nature of paper in a fax machine is different from that of ordinary writing paper. Writing paper cannot be used for its designated purpose on Shabbat and since, because of its inherent value, it is reserved solely for that impermissible purpose, it has no functional purpose. Fax paper does, however, have a permissible purpose, i.e., to be used for receiving permissible fax transmissions. The consideration of Shulḥan Arukh ha-Rav is similarly inapplicable. In inserting paper in a fax machine the owner has designated the fax paper for a permissible utilitarian use over the course of Shabbat and hence such paper is not comparable in status to stones or pieces of wood.",
+ "There is yet another category of mukzah that is known by a different term, viz., nolad. Included in that category are things that are \"born\" or come into existence on Shabbat. The primary example is an egg that is laid by a hen on Shabbat. Rabbi Grubner asserts that, since the letter or message printed by the fax machine did not at all exist prior to the advent of Shabbat, the faxed message should be regarded as nolad and hence mukzah. Rabbi Grubner, however, does not forbid handling a fax message on Shabbat because he is willing to rely on the authorities who, in disagreement with Rema, Oraḥ Hayyim 575:4, prohibit nolad only on Yom Tov but not on Shabbat.",
+ "Nevertheless, the contention that a fax message is in the category of nolad may be rebutted on a variety of grounds. Citing Shulḥan Arukh ha-Rav, Kuntres Aharon, Oraḥ Hayyim 497:6, Rabbi Raskin argues that no item can be regarded as nolad unless it acquires a new use on Shabbat. The item to be moved, viz., the fax paper, has acquired no new use since its sole purpose, and the purpose for which it was designated before Shabbat, is to receive fax messages. Rabbi Moseson dismisses the suggestion that a faxed message should not be handled on Shabbat because the letters imprinted on the paper should be regarded as nolad by virtue of the fact that they were produced on Shabbat. He observes that no transgression is involved in moving the ink since the ink \"has no substance\" (ein bo mamash), i.e., the ink imprinted on the paper is intangible. Rabbi Feinhandler resolves the problem somewhat differently in arguing that nothing is \"born\" in the printing of a fax message since both the paper and the ink were present and available before Shabbat. Hence, argues Rabbi Feinhandler, the printed message is merely the combination of substances that were both present and available before Shabbat.",
+ "IV. Reading the Fax",
+ "To state that a fax machine may remain connected and operational over Shabbat does not necessarily mean that a fax received on Shabbat may be read during the course of the Sabbath day or even upon expiration of the Sabbath. Letters and documents pertaining to business matters may not be read on Shabbat. As recorded in Shulḥan Arukh, Oraḥ Hayyim 307:13, it is also forbidden to read \"friendly letters\" on Shabbat because they are readily confused with letters pertaining to business affairs. Not prohibited is the reading of letters dealing with matters pertaining to physical needs as distinct from matters pertaining to money or property. It is, however, permitted to glance at a letter in order to determine its nature provided that one ceases further reading if and when the prohibited nature of the letter becomes evident. It is quite obvious that the same provisions apply with regard to the reading of fax messages on Shabbat.",
+ "Bet Avi, Rabbi Lau and Rabbi Feinhandler rule that a fax sent by a Jew in violation of Sabbath restrictions may not be read regardless of its content. Rabbi Grubner tentatively reaches the same conclusion. Rabbi Feinhandler and Rabbi Raskin further observe that the fax may not be read even after Shabbat. The general rule as formulated with regard to cooking on Shabbat and recorded in Shulḥan Arukh, Oraḥ Hayyim 318:1, provides that food cooked by a Jew in willful transgression of Shabbat restrictions is forever forbidden to that person but is permitted to others immediately after Shabbat. The food is permitted to others after Shabbat because there is no reason to fear that the Jew may request the transgressor to cook again on his behalf at some future occasion since \"no person sins when he has no benefit.\" Accordingly, Pri Megadim, Oraḥ Hayyim, Eshel Avraham 325:22, rules that if food is cooked on behalf of a Jew by an apostate the person for whom the food was prepared may never partake of the food for fear that, if he is allowed to benefit from the forbidden act, the Jew may request the apostate to cook on his behalf on some future occasion. Since the person who cooked the food is an apostate the principle that a person does not transgress other than for personal benefit is not applicable.",
+ "Rabbi Feinhandler cogently argues that Pri Megadim's ruling applies to contemporary Sabbath violators even if they are adjudged to be \"children captured by the heathens.\" A person totally ignorant either of the nature of Sabbath restrictions or of the severity of the transgression will have no compunction with regard to future violation. Hence the food is forbidden to the person for whose benefit it was prepared lest he request a similar benefit in the future. Accordingly, Rabbi Feinhandler concludes that, when it is known that the sender is a Jew, a fax sent by a Jew on Shabbat may never be read. He similarly concludes that a person may not listen to a message left on a telephone answering machine if he knows with certainty that it was recorded by a Jew on Shabbat. The recipient of a fax sent on Shabbat may, however, request that the fax be resent since any benefit accruing to him will be from the second fax rather than from the first.",
+ "Rabbi Brandsdorfer observes that a fax sent by a non-Jew may also not be read on Shabbat. As recorded in Shulḥan Arukh, Oraḥ Hayyim 325:5, a Jew may not derive benefit from a forbidden act performed on his behalf on Shabbat even if he has not requested the non-Jew to provide the benefit on his behalf. He may, however, derive benefit from the act after Shabbat, provided that he does not do so until a period of time sufficient to perform the act after Shabbat has elapsed. Obviously, with regard to transmission of a fax, that period of time is rather brief.",
+ "V. Delayed Transmission",
+ "A further question addressed by many of these writers is the propriety of setting a fax machine before Shabbat to transmit fax messages later in the day, i.e., when it is already Shabbat, in order to take advantage of lower evening rates. Rabbi Lau correctly notes that delayed transmission of a fax is essentially the same as the widely accepted use of a timer or Shabbat clock and, accordingly, he has no difficulty in permitting the practice, at least when the recipient is aware of the fact that the message has been transmitted automatically. The practice is also permitted by Rabbi Leizerowsky and Rabbi Feinhandler.",
+ "Rabbi Brandsdorfer, however, compares the practice to the performance of an act of labor by a non-Jew in the home of a Jew. Such an act is prohibited even when performed by a non-Jew who is not subject to the direction or control of a Jew on the grounds that an uninformed observer is likely to assume that the labor is being performed at the direction of a Jew. Similarly, argues Rabbi Brandsdorfer, an observer at the receiving end of the fax transmission may suspect that it was sent without benefit of an automatic timer. Rabbi Diskin rebuts that contention with the observation that the Sages prohibited labor performed by a gentile but did not prohibit labor performed by an inanimate object. The underlying principle invoked by Rabbi Diskin, i.e., that matters not encompassed within the ambit of a rabbinic prohibition remain permissible, is beyond dispute."
+ ],
+ "Chapter VI Further Shabbat Questions": [
+ "\"You shall not perform any labor\" (Exodus 20:10): I [know] only that acts of labor and [their] derivatives are prohibited. Whence [do I know] to prohibit rabbinic forms of labor? The verse states \"any labor.\" I would think that one is liable for a sin-offering for transgressing a rabbinic prohibition; [therefore] the verse states \"labor\"—there is liability [for a sin-offering] for designated labor but there is no liability [for transgression of] a rabbinic prohibition.",
+ "MEKHILTA DE-RABBI SHIMON BAR YOHA'I, EXODUS 35:2",
+ "Use of Crockpots on Shabbat",
+ "The slow cooking method that has made the crockpot appeal to housewives who are away from their homes during the day has also made that appliance popular among Jewish women for preparing the Sabbath cholent. In order to satisfy rabbinic restrictions against allowing as yet inedible food to cook on Shabbat, the practice among women who avail themselves of the crockpot for preparing cholent is to begin the cooking process early enough before Shabbat so that the ingredients become cooked before Shabbat to at least one third of the extent that would make the food comfortably edible. Although the food is not properly cooked, Jewish law regards food cooked to that extent to be acceptable by a sufficiently hungry and impatient individual. Since the food is at least minimally edible there is no fear that in his or her haste the cook might seek to increase the cooking temperature in order to make the food fit for consumption.",
+ "Although it is as yet unpublished, a brief responsum by the late R. Shlomoh Zalman Auerbach discussing the propriety of this procedure has been widely disseminated in the observant community. In all likelihood this was the last responsum authored by Rabbi Auerbach prior to his death. The concern expressed by Rabbi Auerbach is limited to crockpots composed of two parts, an outer pot containing heating elements along the circumference of its walls and a second, removable inner container that fits snugly within the outer utensil and does not protrude above the outer cusp of the crockpot. Other crockpots may be unacceptable for Shabbat use for entirely different reasons. The considerations upon which Rabbi Auerbach's short, undated response is based are spelled out in detail in a letter addressed to him by R. Isaac Mordecai Rubin dated 10 Tevet 5755.",
+ "The Gemara, Shabbat 34b, declares that even fully prepared food may not be \"concealed\" in a substance that \"adds heat\" (e.g. ashes or sand that themselves retain heat) prior to Shabbat for fear that, were that to be permitted, a person might be led to bury the food in hot ashes and later, on the Sabbath, rake the hot embers in order to maintain the temperature of the food. There is some disagreement among early authorities with regard to the parameters of the prohibition against \"concealment\" (hatmanah). Rashba and others rule that even \"partial concealment\" is forbidden. Nevertheless, Rema, Oraḥ Hayyim 253:1, rules that \"partial concealment\" is not a prohibited form of \"concealment.\" Since Rema speaks of prohibited concealment as concealment \"on all sides\" it might well be assumed that the prohibition does not extend to a pot insulated on the sides by a substance that \"adds heat\" but is exposed on the top. Accordingly, since the outer pot containing the heating element encases the inner container only on its sides but does not extend over the cover, use of the crockpot would be permitted. It may be noted that \"concealment\" in substances that \"do not add heat,\" e.g. cloth or clothing, is forbidden only if the pot is covered on all sides, including the top, and only if the \"concealment\" takes place on Shabbat.",
+ "There is, however, considerable doubt with regard to the accuracy of this analysis of Rema's position. Pri Megadim, Mishbezot Zahav 259:3, s.v. hatmanah, expresses doubt with regard to whether Rema intended to permit a pot to be \"concealed\" on all sides save for its cover. Mishnah Berurah 257:43, quoting Hayyei Adam 20:22, rules that a pot may be placed in sand only to its midpoint, but permits the upper portion of the pot to be wrapped in cloth. Rabbi Rubin points out that Rabbenu Tam, in his Sefer ha-Yashar, no. 235, is somewhat equivocal in stating that \" 'concealment' connotes being covered in its major portion or in its entirety.\" It is not absolutely clear whether, in that statement, Rabbenu Tam's use of the disjunctive is an expression of doubt with regard to whether it is only \"concealment\" of a pot in its entirety that is forbidden or whether even \"concealment\" of more than fifty percent of the utensil is prohibited or, alternatively, whether Rabbenu Tam simply means to indicate that concealment of the major portion is tantamount to concealment of the entity in its entirety. To this writer, were the latter interpretation correct, the appropriate formulation would have been \"in its entirety or [even] in its major portion\"; the formulation \"in its major portion or in its entirety\" would seem to indicate that Rabbenu Tam is in doubt with regard to whether \"concealment\" of only the major portion is indeed prohibited. Nevertheless, as previously cited, both Hayyei Adam and Mishnah Berurah rule that concealment of a major portion of the pot is prohibited. However, Shulḥan Arukh ha-Rav, Oraḥ Hayyim 257:10, Kuntres Aharon, sec. 3, rules that a pot may be totally immersed in sand so long as the top remains exposed. The outer utensil of a crockpot which contains the heating element is assuredly \"a substance that adds heat.\" Hence, permissibility of the use of a crockpot for purposes of preparing the Sabbath cholent depends directly upon proper analysis of Rema's position, i.e., does Rema prohibit \"concealment\" even if the pot is partially exposed.",
+ "In his brief response Rabbi Auerbach simply endorses the cogency of his interlocutor's restrictive conclusion prohibiting use of crockpots for preparation of cholent and adds that \"concealment\" is not negated by the fact that the inner container does not actually touch the outer pot containing the heating element as evidenced by the fact that the utensil actually cooks in this manner. He does, however, offer a somewhat cumbersome solution in advising that an additional metal \"utensil,\" i.e., aluminum foil, be interposed between the sides of the inner container and the outside pot. However, this writer finds that suggestion puzzling since it is not clear that interposition of such a \"utensil\" would resolve the problem. Although heat conducted to the inner container will indeed be marginally diminished, nevertheless, such a metal liner would itself become warm. It would seem to this writer that such metal is a substance that \"adds heat\" and, accordingly, nothing is gained by means of its use since the inner container remains \"concealed\" within the interposed metal that itself \"adds heat.\"",
+ "There is, however, another method that may be employed. Sefer ha-Terumah, no. 231, states that the ban against \"concealment\" does not apply when \"the pot is not covered on all sides and air seizes control over it\" (shalit bah avira) since under such circumstances it is clear \"that he is not so concerned that it become heated and there is no reason to fear that he will rake [the embers].\" Rabbi Auerbach notes that the fact that the inner container does not actually touch the outer part, i.e., that there exists a minimal air space between them, does not negate the prohibition. Since the air circulation is de minimis the air cannot be said to \"seize control,\" i.e., to penetrate, as witnessed by the fact that the utensil actually cooks in this manner. However, the inner container is somewhat conical in shape. As a result, if the inner container is raised by even an inch or so by placing a flat can or the like on the bottom of the crockpot before Shabbat and resting the inner container on that object, the airspace between the inner container and the outer pot is increased significantly. Since, when the inner container is raised, air does indeed penetrate, there is no longer \"concealment' in an object that enhances heat and hence the problem with regard to the prohibition against \"concealment\" is resolved.",
+ "Shortly after dissemination of Rabbi Auerbach's letter, a slim monograph by R. David Solomon entitled Kuntres Hatmanah be-Mikzat appeared in Jewish bookstores. Although the timing of publication was probably coincidental, and indeed crockpots are not at all mentioned in this work, it is clearly evident from the title that the issue addressed is precisely that of \"partial concealment.\"",
+ "Tosafot, Shabbat 47b, cite the position of Rashbam who maintains that any food that may be left on a stove over Shabbat, e.g., food that has been on the stove one third of its cooking time prior to the onset of Shabbat, may also be \"concealed.\" Rabbenu Tam emphatically disagrees and maintains that even food that may be left on the stove may not be concealed. Rabbenu Tam's position is accepted by both Shulḥan Arukh and Rema, Oraḥ Hayyim 257:7. Hazon Ish, Hilkhot Shabbat 37:19, assumes that Rema, Oraḥ Hayyim 253:1, in permitting a partially exposed pot to be placed on hot embers, does not base his ruling upon the fact that the pot is only partially covered but relies upon Rashbam in permitting \"concealment\" of partially cooked food. If so, points out Hazon Ish, that ruling contradicts Rema's own earlier cited ruling negating the position of Rashbam. Rabbi Solomon argues that, quite to the contrary, Rabbenu Tam himself, in his Sefer ha-Yashar, permits \"partial concealment\" as earlier noted and hence Rema's rulings are entirely consistent.",
+ "Rabbi Solomon engages in a meticulous examination of the writings of early-day authorities with regard to their view concerning \"partial concealment\" and concludes that the majority of those authorities accept Rabbenu Tam's position in ruling that \"partial concealment\" is permissible. He notes that many of those works were not available to R. Joseph Caro and those who accepted his ruling that \"partial concealment\" is forbidden.",
+ "As noted earlier, Rashba and those who follow his position in prohibiting \"partial concealment\" do so if even one surface of the pot is \"concealed,\" e.g., if the bottom of the pot is placed in hot ashes. Rabbenu Tam rules that \"concealment\" is forbidden only if the pot is concealed \"in its major portion or in its entirety.\" Acceptance of Rabbenu Tam's position leaves open the earlier discussed question of whether Rabbenu Tam is to be understood as prohibiting concealment only when the utensil is entirely covered or even when the major portion of the utensil is \"concealed.\" That question is not addressed by Rabbi Solomon.",
+ "Care of Soft Contact Lenses on Shabbat",
+ "Hard lenses are made from polymethyl methecrylate (PMMA) and are essentially non-permeable. Rigid gas permeable contact lenses, also known as oxygen permeable lenses, are made of permeable materials, usually silicone and fluorine, that allow oxygen to reach the eye. Because they are made of a relatively hard material such lenses retain their shape when the wearer blinks which, in turn, is one of the reasons that such lenses tend to provide crisper vision than is provided by soft lenses. They are also extremely durable and with proper care may last years. Hard lenses do not absorb water. As a result protein and lipids naturally present in tears do not bind to hard lenses as easily as to soft lenses. If deposits of these substances are not removed they impede use and may cause a corneal abrasion. Such deposits are also a haven for bacteria that may cause sight-threatening infections. Proper use of the lenses requires lightly rubbing a cleansing solution in the lens with the index finger, rinsing the lens and storing it in a contact lens case filled with a storing and conditioning agent as well as, in most cases, occasional use of an enzymatic cleanser on a daily, weekly or monthly basis to assist in removal of protein deposits. Since the lenses do not absorb liquid and the cleansing process is designed only to remove surface debris and dust, the cleaning of hard lenses on Shabbat and Yom Tov is generally regarded as being problem-free insofar as Halakhah is concerned.",
+ "Most patients find frequently replaced soft lenses to be more comfortable than hard lenses. More important is the fact that they eliminate the buildup of protein deposits and hence reduce the risk of corneal abrasion and infection. The replacement schedule for soft lenses may be daily, weekly, bi-weekly, monthly, semi-monthly or quarterly. Some contact lenses are also designed for extended or overnight wear. Although the F.D.A. has approved extended wear for up to seven days, some practitioners advise that wear for even three days without removal can lead to potentially dangerous infections of the eye.",
+ "Soft lenses that are discarded daily require no cleaning and hence present no halakhic problems. The removal schedule for extended wear lenses can readily be arranged to obviate the need for removal on Shabbat or Yom Tov. However, since soft lenses absorb water the cleansing of lenses that must be removed nightly does present a problem on Shabbat and Yom Tov. The water content of soft lenses ranges from 36% to 70% by weight. Permavision lenses, which are visibility tinted contact lenses manufactured by Bausch and Lomb, are 36% water by weight when immersed in a sterile borate buffered saline solution. SofLens, one-day disposable contact lenses also manufactured by Bausch and Lomb, are 70% water by weight.",
+ "Soft lenses that are reused require daily cleansing and must be kept in a saline solution in order to prevent them from drying out and hence becoming unusable. Since soft lenses become water-laden when placed in an appropriate solution, lens care on Shabbat and Yom Tov presents three separate issues: 1) Is soaking the lens a form of \"washing\" that is forbidden on Shabbat and Yom Tov? 2) Does the cleansing process performed by dipping a finger in the solution and rubbing it over the lens constitute a forbidden form of washing? 3) Does handling the lens in the course of cleaning and removal from the solution constitute a forbidden form seḥitah, i.e., of expressing or squeezing a liquid from a solid? The issue of soaking lenses on Shabbat is addressed by R. Joseph Shalom Eliashiv in a brief item included in his recently published volume of responsa, Kovez Teshuvot (Jerusalem, 5760), no. 18. A more detailed discussion of those issues is presented by R. Isaac Mordecai Rubin in Yeshurun, vol. VII (Elul 5760). The same edition of Yeshurun contains a letter by R. Samuel ha-Levi Woszner to Rabbi Rubin addressing these questions. The issue is also addressed by R. Abraham Salem, Teshuvot va-Ya'an Avraham, IV (Jerusalem, 5760), no. 7; R. Yeshayahu Pinchas Rotenberg, Teshuvot Minḥat Pri, III (Jerusalem, 5760), no. 34; R. Yehonatan Ben Tzur, He'ir ha-Mizraḥ, no. 22-30: R. Ephraim Greenblatt, Kiryat Sefer, published by Machon Naḥalat Yisra'el, Kislev 5960; and R. Abraham Chanunu, Kol ha-Torah, no. 50 (Nisan 5751), published by Agudath Israel of Europe. An earlier succinct ruling regarding use of soft lenses on Shabbat is included in R. Joshua Neuwirth's Shemirat Shabbat ke-Hilkhatah 15:2.",
+ "As recorded by Rema, Oraḥ Hayyim 302:9, it is forbidden to soak clothing made of cloth in water on Shabbat because soaking, in and of itself, is a form of \"washing\" that is prohibited because it constitutes melabben or \"whitening,\" one of the thirty-nine forms of \"labor\" prohibited on Shabbat. However, as recorded by Shulḥan Arukh, Oraḥ Hayyim 302:9, it is permitted to pour water on leather garments on Shabbat because mere soaking is not regarded as a form of melabben with regard to leather. R. Moshe Feinstein, Iggerot Mosheh, Yoreh De'ah, II, no. 77, expresses the opinion that the usual restrictions regarding washing do not apply to plastic tablecloths because they are non-absorbent but he nevertheless concludes that \"since it is impossible to find this din explicitly stated because [plastic] is a new species that was not seen in early generations it is therefore proper to be stringent and not to pour water directly with force but to be lenient in cleansing gently with water.\" With regard to plastic, Iggerot Mosheh apparently relies upon the lenient view recorded by Rema, Oraḥ Hayyim 302:9, that permits an individual to pour a small quantity of water upon a garment to which dirt has not adhered but nevertheless prohibits him to pour a copious quantity of water upon the garment \"lest he squeeze the water out of the garment.\"",
+ "Although made of plastic, soft contact lenses are regarded in an entirely different light by the earlier-cited authorities because they do absorb water. Rabbi Rubin tentatively suggests that the distinction between cloth and leather is not based upon absorbency but upon the consideration that soaking either is not effective in cleaning leather or that it takes much longer to achieve that effect. If so, absorbent plastic may have a halakhic status comparable to leather.",
+ "Rabbi Eliashiv draws attention to a controversy among early-day authorities cited by Rema, Oraḥ Hayyim, 302:9. Rosh, Yoma 8:4, maintains that soaking constitutes a prohibited form of \"washing\" only if the garment has been soiled in some manner. If, however, the garment is perfectly clean, or even if it has become somewhat dull or drab because of wear and/or the passage of time and hence the soaking is designed solely to brighten or freshen the garment, the garment may be soaked in water. Rema cites the view of Rosh and prefaces the contradictory view with the phrase \"some forbid.\" Rabbi Eliashiv adds that, even according to the stringent view, soaking an unsoiled garment is prohibited only if the garment has become dull or grey and the soaking has the effect of restoring the garment's luster. If, however, the soaking has no effect whatsoever upon the appearance of the garment, concludes Rabbi Eliashiv, soaking is permissible according to all authorities. Rabbi Eliashiv carefully notes that his opinion in this matter is contra that of Shulḥan Arukh ha-Rav, Oraḥ Hayyim 302:21, but that R. Abraham Borenstein of Sochachow, Avnei Nezer, Oraḥ Hayyim, no. 159, sec. 10, expresses astonishment because he could find no basis for the view expressed by Shulḥan Arukh ha-Rav. Accordingly, Rabbi Eliashiv permits placing the lenses in a saline situation on Shabbat, but only if the lenses have been properly cleaned before Shabbat. Under such circumstances, soaking has no cleansing effect but serves only to prevent the lens from shriveling and hence becoming useless.",
+ "Rabbi Nissim Karelitz is quoted by Rabbi Ben Tzur as permitting the soaking of contact lenses on Shabbat on the basis of an entirely different consideration. It is virtually impossible to express the solution absorbed by the lenses. The moisture that is absorbed by the lenses is, practically speaking, removable only through evaporation. Soaking, reportedly argues Rabbi Karelitz, is tantamount to \"washing\" only with regard to cloth and the like from which absorbed liquid can be squeezed.",
+ "Rabbi Eliashiv omits any explanation for his insistence upon cleansing the lenses before Shabbat. However, Rabbi Rubin observes that \"it is logical\" to assume that, although soaking the leather is not regarded as a form of libbun because of its lack of effectiveness, nevertheless, effective chemical removal of a stain that has penetrated a leather garment is forbidden. The halakhic status of plastic, he contends, is comparable to that of leather. Rabbi Rubin then proceeds to argue that soaking lenses in a cleansing solution on Shabbat is halakhically forbidden. Presumably, Rabbi Eliashiv insists that the lenses be cleaned prior to Shabbat in order to assure that the saline solution will not serve a cleansing purpose. That rationale is explicitly cited in the name of Rabbi Eliashiv by Rabbi Chanunu in the latter's discussion of the topic.",
+ "This writer fails to understand the application of this line of reasoning to contact lenses. The silicone lens does not absorb stains and does not become sullied; on the contrary, a properly maintained lens is always crystal clear. Any distortion that is perceived in a properly maintained lens is due to the presence of surface debris. As explained by Mishnah Berurah 302:7 and Avnei Nezer, Oraḥ Hayyim, no. 157, sec. 4, removal of surface dirt or debris is not a form of melabben. Avnei Nezer, Oraḥ Hayyim, no. 159, sec. 7, demonstrates that libbun applies only to removal of stains or absorbed materials that mar the appearance of the garment. Thus, for example, Avnei Nezer, Oraḥ Hayyim, no. 157, sec. 11, demonstrates that kashering utensils on Yom Tov, albeit forbidden for other reasons, is not prohibited by virtue of melabben because the \"taste\" absorbed by a utensil in no way sullies or mars its appearance. If so, as noted by Minḥat Pri, it would be permissible even to rub the solution over the lenses on Shabbat.",
+ "Apparently conceding these points, Rabbi Rubin argues that, if not removed, the proteins adhering to the surface of the lens will eventually cause the lens to become discolored and hence \"it is logical\" to assume that their removal constitutes a form of libbun. This writer is unaware of any source that might substantiate the view that application of a substance designed to prevent future discoloration constitutes libbun. The mere fact that a contact lens that is left uncleaned will turn yellow does not lead to the conclusion that removal of the colorless protein is a form of libbun. In any event, that consideration is germane only with regard to utilization of an enzyme solution but not with regard to use of a cleansing solution that serves only to remove surface dirt and bacteria. Accordingly, there appears to be no reason to insist upon cleansing the lenses before Shabbat if they are to be soaked on Shabbat only in an ordinary cleansing solution.",
+ "Cleansing the lenses by means of rubbing the wet lens with a finger is somewhat more problematic. Rubbing a leather garment on Shabbat in order to remove a stain is forbidden. Mishnah Berurah, Bi'ur Halakhah 302:9, asserts that, although rubbing hard leather in this manner is rabbinically prohibited, rubbing soft, supple leather in such a manner constitutes a biblical offense. Rabbi Woszner, however, questions that distinction and asserts that the prohibition against cleansing leather is, in all circumstances, rabbinic in nature. However, the disagreement is only with regard to the stringency of the prohibition, not with regard to the prohibition itself. Accordingly, Rabbi Rubin explicitly prohibits manual cleansing of soft lenses on Shabbat. Again, for reasons identical to those stated above, this writer fails to understand how removal of substances that do not sully or stain the lenses can be regarded as a form of libbun.",
+ "The issue posed by virtue of possible seḥitah or squeezing is summarily dismissed by Rabbi Rubin on empirical grounds. Although the lens absorbs water it is extremely difficult to force it to expel the liquid it has absorbed. To do so would require an inordinate amount of pressure. Accordingly, he concludes that there is no problem with regard to handling soft contact lenses on Shabbat.",
+ "The most incisive analysis of these issues may well be that of the late R. Shlomoh Zalman Auerbach as reported by R. Joshua Neuwirth. In his Shemirat Shabbat ke-Hilkhatah 15:2, Rabbi Neuwirth permits removal of soft contact lenses and their placement in a \"solution\" immediately upon removal. When questioned by Rabbi Rubin regarding R. Shlomoh Zalman Auerbach's opinion concerning this matter, Rabbi Neuwirth responded in the name of his mentor: \"Ordinary cloth absorbs in its molecules and between the molecules. Contact lenses do not have molecules and intermolecules; rather, they swell because of water, i.e., in the manner of a balloon that swells from the air\" (i.e., the balloon fills with air but does not absorb the air).",
+ "Employing terminology almost identical to that of Rabbi Neuwirth, Rabbi Ephraim Greenblatt, author of Teshuvot Rivevot Efrayim, also permits soaking contact lenses on Shabbat but does not permit rubbing the wet lens. Rabbi Greenblatt emphasizes that dirt is not absorbed within the lens but only adheres to the surface, that liquid cannot be expressed from the lens, that the \"dirt\" does not impede vision, i.e., that it is invisible to the eye, and that the lens does not absorb liquid but that the liquid occupies \"the holes in the lens\" which is \"placed as a ball is placed in water.\"",
+ "Although Rabbi Rubin acknowledges that the scientists whom he consulted did not provide definitive explanations regarding the manner in which permeable lenses absorb liquids, he dismisses Rabbi Auerbach's contention as scientifically incorrect. In actuality, although imprecisely expressed, Rabbi Auerbach's analysis may well be scientifically accurate. Soaking is regarded as a form of washing because water permeates cloth and is absorbed within its threads, i.e., it replaces air that otherwise occupies the space between the molecules of the cloth. Plastic is known to be non-absorbent. The plastic used in soft contact lenses is probably non-absorbent as well. The so-called \"absorption\" that takes place in soft lenses probably does not take place within the molecular strands of which the plastic is composed but may simply be the result of the phenomenon of water pushing between strands of plastic without being absorbed in the space between individual molecules. Thus, the phenomenon is analogous to air blown into a balloon that forces the walls of the balloon apart without being absorbed within the walls themselves. If this is indeed the case, there may be grounds to argue that the halakhic status of soft contact lenses is that of leather rather than of cloth.",
+ "There is, of course, some absorption of water even by hard leather. The distinction between leather and cloth lies in the fact that leather does not become permeated by water in a manner similar to cloth. Accordingly, it is arguable that, if the water indeed does not thoroughly permeate the intermolecular space of soft plastic, the status of plastic is comparable to that of leather. It was, of course, this lack of precise information regarding the physical properties of plastic that prompted Rabbi Feinstein's earlier noted cautionary advice with regard to even ostensibly non-absorbent plastics.",
+ "Dr. Abraham S. Abraham, Nishmat Avraham, V, Oraḥ Hayyim 321:11, sec. 2, records that Rabbi Neuwirth reported that R. Shlomoh Zalman Auerbach permitted placing contact lenses in liquid only while they are still moist. Rabbi Auerbach forbade placing a dried out lens even in a non-cleansing saline solution because in such circumstances, the liquid has a restorative effect, a factor that renders the act forbidden just as it is forbidden to place a lulav in water on Shabbat. Rabbi Auerbach is also quoted as stating that if the lens has become shriveled or wrinkled because of lack of moisture the infraction is even more serious. Since a lens in such condition is unusable, placing it in a liquid, declared Rabbi Auerbach, is tantamount to the forbidden act of completing the fashioning of a utensil on Shabbat.",
+ "Wheelchairs on Shabbat",
+ "Transporting a person through a public thoroughfare who is himself capable of walking constitutes a rabbinic rather than a biblical offense. Nor is there a biblical infraction in transporting such a person while he or she occupies a bed because the bed is regarded as an appurtenance of the person. However, if the person is incapable of walking, carrying that individual through a public thoroughfare on Shabbat constitutes a biblical transgression. Thus, it is clear that a person who cannot walk may not be pushed through the streets on Shabbat in a wheelchair.",
+ "R. Zevi Pesach Frank, Teshuvot Har Ẓevi, Oraḥ Hayyim, I, no. 170, examines the interesting question of whether such a person may push his own wheelchair on Shabbat. The Mishnah, Shabbat 65b, declares that an amputee is free to walk with a prosthesis because, as Rashi explains, the prosthesis is regarded as his \"shoe.\" For the same reason Shulḥan Arukh, Oraḥ Hayyim 301:16, rules that an amputee may walk on leather pads. Similarly, it may be argued, with regard to a person who is not ambulatory, the wheelchair is tantamount to his \"feet.\"",
+ "Nevertheless, Rabbi Frank rules that use of a wheelchair on Shabbat in a public thoroughfare is forbidden. A prosthesis, cane or pad is designed to assist a person in using his own physical power in walking. Those items make the process possible and have the status of shoes which may be worn on Shabbat because they are articles of clothing and, as such, are appurtenances of the body. A wheelchair does not assist its user in walking and does not have the status of a shoe; since a wheelchair is not worn on the body it is not an item of clothing. Accordingly, Rabbi Frank concludes that a person may not wheel himself on Shabbat just as others are not permitted to push the wheelchair.",
+ "R. Shimon Grunfeld, Teshuvot Maharshag, II, no. 13, makes the identical point with regard to the status of a wheelchair. Maharshag argues that even if the person occupying the wheelchair is capable of walking, and hence carrying or pushing him is merely a rabbinic infraction, pushing the wheelchair itself constitutes a biblical transgression because the wheelchair cannot be considered to be comparable to an article of clothing.",
+ "Maharshag, quite understandably, forbids allowing the wheelchair to be pushed by a non-Jew even for purposes of a mizvah such as public prayer in a synagogue. Moreover, Maharshag prohibits employment of a non-Jew for this purpose even in an area in which carrying is only rabbinically forbidden. In doing so, Maharshag rules in accordance with the authorities cited by Shulḥan Arukh, Oraḥ Hayyim 307:5, who maintain that it is forbidden to direct a non-Jew to perform a rabbinically proscribed act even when the act is undertaken for purposes of fulfilling a mizvah. However, the consensus of opinion among latter-day authorities is in accordance with the permissive view cited by Shulḥan Arukh sanctioning employment of a non-Jew for performance of a rabbinically proscribed act when such is necessary in order to fulfill a mizvah.",
+ "R. Moshe Feinstein, Iggerot Mosheh, Oraḥ Hayyim, IV, no. 90, adopts a position directly at variance to that of Rabbi Frank and Rabbi Grunfeld in ruling that a wheelchair is the \"shoe\" or \"garment\" of a person incapable of walking. Accordingly, Iggerot Mosheh has no reservation with regard to permitting a person to wheel himself in a wheelchair on Shabbat.",
+ "R. Yitzchak Ya'akov Weisz, Teshuvot Minḥat Yizḥak, II, no. 114, is in agreement with Rabbi Frank and Rabbi Grunwald in declaring that a wheelchair cannot have the status of a \"shoe\" since it does not serve as an aid in self-ambulation. He nevertheless tentatively advances another consideration that would serve to render use of a wheelchair permissible. Minḥat Yizḥak takes it for granted that, were such a situation logically conceivable, there would be no prohibition against a person carrying himself even if that person is physically unable to walk. Minḥat Yizḥak suggests that the wheelchair may be regarded as an appurtenance of the person (tafel) and hence a person may \"carry\" his wheelchair just as he may carry himself. That consideration is based upon the statement of the Mishnah, Shabbat 93b, indicating that transporting a person reclining upon a bed into a public thoroughfare on Shabbat involves no biblical infraction because the bed is tafel to the person. A similar argument is presented by R. Joshua Neuwirth, Shemirat Shabbat ke-Hilkhatah, 2nd edition (Jerusalem, 5739), 34:27, note 103, in the name of R. Shlomoh Zalman Auerbach. The only area of doubt, according to Minḥat Yizḥak, is whether the wheelchair is indeed tafel to the person. Even though early-day authorities speak not only of a bed but also of a chair as being tafel to the person, Minḥat Yizḥak suggests that the reference may be limited to the type of chair that is used in the home on a regular basis for ordinary activities but that a chair used only for purposes of transportation may not be tafel to the body. Although the two matters are not entirely identical, Minḥat Yizḥak compares the question of the wheelchair to the rule with regard to a cane. A cane that is needed for assistance in walking both at home and abroad has the status of a \"shoe;\" a cane that is needed for walking in the street but not at home is not regarded as a \"shoe.\"",
+ "Shemirat Shabbat ke-Hilkhatah quotes Rabbi Auerbach as having raised another objection. When a person reclining upon a bed is transported by others their intention is to carry the person and the bed is incidental to the person transported thereon. However, the invalid who pushes himself in a wheelchair is, in fact, primarily propelling the wheel-chair and in doing so takes advantage of the opportunity to move with the wheelchair. In effect, argues Rabbi Auerbach, the invalid becomes an appurtenance to the wheelchair. Rabbi Auerbach further suggests that the same consideration should apply in situations in which the wheelchair is pushed by others. Shemirat Shabbat ke-Hilkhatah relies upon the permissive opinion in ruling that an invalid may propel his own wheelchair but only in areas in which carrying is merely rabbinically forbidden.",
+ "Minḥat Yizḥak further suggests that even if the chair itself is tafel to the person, nevertheless, the wheels designed for use with the wheel-chair are not intrinsic to the chair itself and hence are an appurtenance of the chair rather than an appurtenance of the person. Consequently, since the wheels are not an appurtenance of the person, Minḥat Yizḥak argues that the wheels may not be transported on Shabbat. To this writer that objection would seem germane only in the case of a chair to which wheels have been added as an appendage. A conventional wheel-chair, however, has no feet and hence, were the wheels to be removed, would be unusable. It is difficult to understand why, under such circumstances, the wheels need not be regarded as the feet of the chair and hence integral to its function as a chair.",
+ "Nevertheless, since Minḥat Yizḥak regards the status of a wheelchair to be a matter of doubt, he is willing to permit the use of a wheelchair on Shabbat under extremely limited conditions. If two people, each of whom is capable of performing an act of labor independently of the other, perform the act together, the infraction is rabbinic, rather than biblical, in nature. Hence, if the occupant of the wheelchair is capable of walking, the act of carrying or pushing such a person is only rabbinically prohibited. Accordingly, argues Minḥat Yizḥak, a non-Jew may be requested to carry an ambulatory individual for purposes of a mizvah. However, directing a non-Jew to push a wheelchair in which a person is seated constitutes a directive ordering the non-Jew to perform a biblically prohibited act. Minḥat Yizḥak innovatively suggests that asking the non-Jew to push the wheelchair is nevertheless permitted if the occupant pushes the wheelchair together with the non-Jew, provided that the occupant is capable of propelling the wheelchair himself without assistance. Since the Jew and the non-Jew are both performing the act of \"labor\" simultaneously, the non-Jew is being requested to perform an act that is only rabbinically prohibited. In ruling in this manner Minḥat Yizḥak espouses the view that it is permissible to direct a non-Jew to perform a rabbinically forbidden act for purposes of fulfilling a mizvah such as public prayer or the like. Maharshag, whose negative ruling regarding employing a non-Jew to perform a rabbinically proscribed act for purposes of fulfilling a mizvah was cited earlier, would disagree and refuse to sanction use of wheelchairs even under such conditions.",
+ "Minḥat Yizḥak fails to cite the discussion of the Sephardic scholar, R. Joseph Chaim ben Elijah, Rav Pe'alim, I, no. 25. The Gemara, Beizah 25b, declares that a palanquin or sedan-chair may not be used for transportation on Yom Tov. Somewhat surprisingly, Tur Shulḥan Arukh, Oraḥ Hayyim 301:19, includes a reference to the rabbinic prohibition against use of a sedan-chair that is formulated by the Gemara with regard to Yom Tov among the laws of Shabbat. Tur also records an exception to that prohibition in the instance of a person whose presence \"is required for the benefit of the multitude\" (rabbim zerikhim lo). Bet Yosef, ad locum, notes that earlier codifiers omit any reference to that prohibition in their codification of the laws of Shabbat. The obvious explanation of such omission is that they regard use of a sedan-chair on Shabbat to be forbidden under all circumstances because of the Sabbath prohibition against carrying in a public domain. Tur, however, explains Bet Yosef, maintains that the rabbinic prohibition against carrying a person who is himself capable of ambulation is also suspended when the person's presence is \"required by the multitude.\" Accordingly, since Tur maintains that, in at least some circumstances, it is permissible to transport a person in a sedan-chair on Shabbat, it was necessary for Tur to record the regulations pertaining to use of sedan-chairs in his codification of the laws of Shabbat.",
+ "Rav Pe'alim cogently observes that Bet Yosef's comment serves to explain Tur's view with regard to carrying the person but fails to account for the permissibility of carrying the chair itself. Consequently, Rav Pe'alim astutely infers that Bet Yosef must have regarded the sedan-chair as no different from a bed or an ordinary chair which are regarded as appurtenances of the body and hence, for purposes of carrying on Shabbat, have the same status as the person himself. There can be no question, he asserts, that, if a sedan-chair is regarded as an appurtenance of the body, a wheelchair must be regarded as an appurtenance of the body as well.",
+ "In a responsum addressing the permissibility of riding a bicycle on Shabbat, Rav Pe'alim, I, no. 25, draws attention to the earlier-cited statement of the Gemara, Beizah 25b, forbidding use of sedan-chairs other than by a person whose presence was necessary \"for the benefit of the multitude.\" The most obvious explanation of the rule is that such activity is forbidden by rabbinic decree as a weekday or excessively laborious activity but that an exception was built into the edict permitting such activity when necessary \"for the benefit of the multitude.\" That explanation is reflected in the ruling of R. Ezekiel Landau, Teshuvot Noda bi-Yehudah, Mahadura Tinyana, Oraḥ Hayyim, no. 11 and Mahadura Tinyana, Oraḥ Hayyim, no. 28. However, the same author, in his commentary on Beizah, Ẓlaḥ, ad locum, maintains that the rule is based upon the prohibition against carrying in a public domain. Although the Gemara refers to Yom Tov activity, carrying in a public domain is forbidden even on Yom Tov unless such carrying is undertaken for some need. Accordingly, Ẓlaḥ understands the Gemara as applying that principle in forbidding the carrying of a sedan-chair unless \"the multitude\" require the presence of the person being carried, i.e., the transport is for satisfaction of some need.",
+ "Rav Pe'alim accepts the usual explanation that the Gemara's statement reflects an edict banning weekday activity and is concerned with whether or not that edict includes riding a bicycle as well. Minḥat Yizḥak raises the identical concern with regard to a wheelchair. If so, there is reason to assume that use of a sedan-chair is forbidden even in areas enclosed by an eiruv in which there is no problem with regard to carrying but in which use of a sedan-chair may yet be a \"weekday activity.\" R. David ibn Zimra, Teshuvot Radvaz, V, no. 2, 163, does regard the prohibition against use of a sedan-chair to be in effect even in a locale in which there in an eiruv. However, R. Joseph Saul Nathanson, Sho'el u-Meshiv, Mahadura Tinyana, III, no 74, contends that carrying from place to place in a private domain involves no desecration of Shabbat or Yom Tov and the Sages did not seek to ban any form of carrying in a private domain on the grounds that it is a \"weekday activity.\" Nor, argues Sho'el u-Meshiv, did the Sages prohibit any form of carrying in an area enclosed within an eiruv. Hence, Sho'el u-Meshiv finds no objection to use of a sedan-chair in an area circumscribed by an eiruv.",
+ "Rav Pe'alim himself assumes that the concern with regard to \"dishonor of the Sabbath\" that prompted the rabbinic edict is cogent only with regard to a trip of significant length. Accordingly, he distinguishes between a sedan-chair that is carried by others and a bicycle which is pedaled by the rider. Rav Pe'alim further distinguishes between a sedan-chair that is designed to accommodate multiple passengers and hence is used for transportation over relatively long distances and a bicycle seating only one person which, contrafactually, he contends is used only for short trips. Keren le-David, no. 96, employs a similar distinction in permitting use of baby carriages on Yom Tov and on Shabbat within an area surrounded by an eiruv on the grounds that carriages are used only for short distances. Minḥat Yizḥak applies Keren le-David's distinction to wheelchairs in stating that the rabbinic prohibition is not applicable to wheelchairs because a wheelchair is generally used to traverse only a short distance.",
+ "Rav Pe'alim further contends that \"the need of the multitude\" is not the sole exception to the prohibition against use of a sedan-chair. Rav Pe'alim asserts that use of a sedan-chair for the purpose of any mizvah, including attendance at synagogue services, is similarly permitted. That is also the position of Teshuvot Yesamaḥ Lev, no. 4. However, Sedei Hemed, Asifat Dinim, Ma'arekhet Yom Tov, no. 1, sec. 32, contends that the exclusion is limited to the \"need of the multitude\" and that there is no exception to the edict for purposes of fulfilling a mizvah.",
+ "Minḥat Yizḥak is somewhat more lenient in permitting the use of a wheelchair in an area enclosed by an eiruv. Citing Taz, Oraḥ Hayyim 622:3, Minḥat Yizḥak infers from Taz' comments that a person who cannot walk may push his own wheelchair because the rabbinic edict does not apply to a person transporting himself in situations in which he cannot otherwise move from place to place. Accordingly, Minḥat Yizḥak rules that a person may push his own wheelchair in such an area even for a purpose other than fulfillment of a miḥvah.",
+ "Minḥat Yizḥak also recognizes, as did Sho'el u'Meshiv, that there is no rabbinic decree banning the carrying of a person either on Yom Tov or on Shabbat within an area enclosed by an eiruv. Accordingly, Minḥat Yizḥak further implies that, if the wheelchair is to be regarded as an \"appurtenance\" of the person's body, pushing a wheelchair is no different from carrying the person and the clothes he is wearing and, if so, others may push the wheelchair as well, provided, of course, that the wheelchair is used only within the eiruv. Minḥat Yizḥak, however, regards the status of a wheelchair as an \"appurtenance\" of the body to be a matter of doubt but nevertheless rules that, since the matter involves a rabbinic prohibition, a permissive ruling is warranted in instances of doubt. As noted earlier, Rav Pe'alim and Maharshag would have no reservation with regard to use of wheelchairs on Shabbat within an area circumscribed by an eiruv."
+ ],
+ "Chapter VII The Milk Contretemps": [
+ "R. Simeon says: The word \"camel\" occurs twice, once referring to a camel born from a camel [as forbidden], and the other, to a camel born from a cow. And the Sages who disagree with R. Simeon—what do they do with the repetition \"camel, camel\"?—One is to forbid [the camel itself] and the other to prohibit its milk. And whence does R. Simeon derive the prohibition of a camel's milk?—He derives it from the word \"et,\"[with] the camel.",
+ "BEKHOROT 6b",
+ "In August 1994, a watchful supervisor of kosher milk production became aware of the fact that a surgical procedure had been performed upon the abdomen of a number of cows. He had valid reason to fear that the procedure might render the animal a treifah, i.e., an animal whose meat may not be eaten because it has sustained the perforation of one of the organs whose congenital absence, excision or perforation gives rise to such status. Jewish law forbids not only eating the meat of such an animal but also prohibits the consumption of milk produced by the animal as well. Acting in a highly responsible manner, the Rabbinate of K'hal Adath Jeshurun of Washington Heights, New York City, acting upon the initiative of its distinguished Dayyan, Rabbi Chaim Kohn, issued a \"kashrut alert\" on August 16th directing establishments under its supervision to refrain from producing or selling any milk product \"pending further clarification.\" On August 18th it announced that all milk products under its supervision may be used. One day earlier, on August 17th, Rabbi Raphael Blum, the Kashuer Rav, of Bedford Hills, New York, issued a letter addressed to the members of his community in which he ruled that all earlier purchased milk products must be regarded as non-kosher and that all dairy utensils must be kashered. On that very day the Central Rabbinical Congress of the U.S.A. and Canada convened an extraordinary meeting of its members and following extensive deliberations issued a statement declaring all supervised milk products to be acceptable. On the basis of statements subsequently issued by a number of rabbinic supervisors, including New Square Kosher Certification, it is apparent that dairy cows upon whom this surgical procedure has been performed have been removed from herds whose milk are under such supervision.",
+ "I. Left Displaced Abomasum and Its Treatment",
+ "The primary cause of the problem requiring surgical intervention for its correction is apparently the diet provided dairy cows in order to increase the cows' production of milk. Housing cows in short stalls may be an aggravating factor since cows confined in such stalls may experience difficulty in rising to their feet. Struggling to rise may cause a malposition of an already dilated abomasum. The problem appears to be virtually non-existent in countries such as Australia and New Zealand where cattle are not normally fed grain but are simply allowed to graze in unconfined pastures. The high carbohydrate diet provided in this country, or perhaps the accompanying reduction in consumption of grass, results in a high concentration of unabsorbed free fatty acids which decrease motility of the smooth muscle of the cow's fourth stomach, the keivah or abomasum. As motility decreases, gas formation is increased by the liberation of carbon dioxide from the reaction between rumen bicarbonate and abomasal hydrochloric acid. As a result the abomasum becomes filled with gas. The abomasum normally lies to the right of the ventral midline along the abdominal wall. When distended by gas, the abomasum may become displaced and move to the left flank between the rumen and the body wall. As the distorted abomasum rises and moves out of place it may also become twisted at the point of connection of the abomasum to the intestine. In both its rising and twisting the abomasum behaves in a manner similar to a balloon filled with air. This twisting of the abomasum interferes with the free flow of the contents of the abomasum into the duodenum and the intestines. If the condition is not treated, the cow will stop eating and its milk production will decline drastically or it will suffer torsion displacement of the abomasum and die. Corrective treatment of this condition consists of anchoring the abomasum in its proper place.",
+ "Left displaced abomasum (LDA), as the condition is known, was first recognized in 1950. Since then the diagnosis has been made with increasing frequency. Professionals in the field report that it is their impression that surgical correction of LDA has become much more common in recent years. It is thus not entirely surprising that rabbinic authorities remained unaware until recently of what has now become a relatively high incidence of surgical treatment to correct this condition that causes the animal to become a treifah. The incidence of LDA is the subject of a recent study by Dr. Steven Eicker of Cornell University's New York State College of Veterinary Medicine in Ithaca, New York. His study of some 13,000 cows on 26 farms in New York State shows a variation between farms in the occurrence of left displaced abomasum of between five and fifteen percent. The mean for the farms surveyed is between seven and eight percent. None of the farms surveyed showed a prevalence of less than five percent.",
+ "LDA is treated in a variety of different ways:",
+ "1. Drug Treatment: An increase in gastrointestinal motility may increase the tone of the abomasum and thereby cause gas to be expelled with a result that the abomasum returns to its normal position. Calcium solutions, neostigmine and saline cathartics have been used for this purpose. This treatment is frequently unsuccessful and, even when the abomasum does return to its normal position, there is a high incidence of recurrence.",
+ "2. Rolling and Manipulation: LDA can sometimes be corrected by massage and external manipulation of the affected organ. In this non-invasive procedure the cow is turned on its back and rolled vigorously. If the procedure is successful, the accumulated gas will cause the abomasum to \"rise\" to what is now the top of the animal lying in a prone position, but which is the ventral side of the abdominal cavity when the animal is standing. As a result, the connection of the abomasum to the intestine will become untwisted and the trapped gas will escape through the intestines and the abomasum, no longer distended, will remain in its normal position. This procedure, since it is non-invasive, presents no halakhic complication but, unfortunately, relapse occurs rather frequently.",
+ "3. Omentopexy: An incision of six to eight inches through the muscle tissue is made in the right side of the animal between the thirteenth rib and the hip exposing the abomasum and the omentum (fat having the halakhic status of forbidden ḥelev) surrounding the abomasum. This procedure is known as a right flank laparotomy. The abomasum is then physically pushed back into its normal position. To prevent relapse, a fold of omentum is tucked into the incision and sutured together with the muscle when the incision is closed. This serves to create tautness that, in turn, serves to anchor the abomasum in place.",
+ "Typically, the abomasum is distended to a degree that makes it impossible to manipulate it back to its proper place by means of an incision of this nature. Therefore, in virtually all cases in which omentopexy is performed, the abomasum is deflated by puncturing it with a needle inverted at an angle through the abdominal wall and the accumulated gas is released. Puncture of the abdominal wall presents a halakhic problem in that it would appear that such a procedure renders the animal a treifah.",
+ "4. Abomasopexy: A paramedian laparotomy, i.e., an incision in the underside of the animal above the navel and several inches right of center, is made in order to pull the abomasum into its normal location near the site of the incision. In this procedure, the wall of the abomasum is incorporated in the closure of the abdominal wall. Normally, the sutures pass through only the outer layer of the abomasum and do not penetrate to the lumen, or cavity, of the abomasum. Thus, this procedure should not render the animal a treifah. Nevertheless, this procedure may also be accompanied by decompression of the abomasum by means of a needle puncture thereby giving rise to the same problem presented by omentopexy. Although decompression is rarely necessary in order to assure a successful outcome of abomasopexy, it may be performed for the comfort of the animal or the convenience of the surgeon.",
+ "5. Ventral Closed Suturing Technique (Blind Tack): No incision is made in the abdomen. The animal is laid on its back and its abomasum is manipulated into place. The abomasum is blindly sutured to the abdominal wall by means of a staple-like bar suture or a toggle button. Both the bar suture and the toggle penetrate the cavity of the abomasum, thereby rendering the animal a treifah.",
+ "Which of these procedures will actually be employed will depend upon a variety of factors, including the severity of the condition, assessments of the chance of recurrence, the relative cost of the various procedures as well as the preference and skill of the veterinary surgeon.",
+ "Care must be taken to distinguish LDA from a condition that has received significant attention in halakhic literature over a period of almost five hundred years. That condition was first described in a gloss appended to Tur, Shulḥan Arukh, Yoreh De'ah 48:2, in the Venice 5282 edition of that work. The malady described in that source is depicted as arising when \"the ox fills its keres (rumen) with vegetables.\" This condition, known as bloat, affects the rumen, the first of the cow's four stomachs, and results from eating excessive quantities of grass. Excessive quantities of grass lead to bloat of the rumen while consumption of excessive carbohydrates leads to displacement of the abomasum. The remedy for bloat of the rumen has been known for hundreds of years, viz., puncture of that organ by any sharp implement. The halakhic ramifications of the procedure have also been discussed by numerous authorities, including R. Judah Asad, Teshuvot Maharya, Yoreh De'ah, no. 60, R. Abraham Danzig, Binat Adam, Sha'ar Issur ve-Heter, no. 26; R. Joseph Saul Nathanson, Sho'el u-Meshiv, Mahadura Kamma, III, no. 81;R. Shalom Mordecai Schwadron, Da'at Torah, Yoreh De'ah, 48:3; R. Yechiel Michel Epstein, Arukh ha-Shulḥan, Yoreh De'ah 48: 7-14; and R. David Zvi Hoffmann, Melammed le-Ho'il, II, no. 9. Melammed le-Ho'il describes that procedure as one that was commonly performed in Germany.",
+ "II. Applicability of Kol de-Parish",
+ "An inquiry submitted to the late R. Moshe Feinstein over forty years ago, in 1952, by Rabbi Elimelech Schwartz of Kansas City concerns \"animals that the doctors puncture between the ribs to remove gas.\" In light of the widespread employment of this veterinary procedure, Rabbi Schwartz questions the reliability of kashrut certification of meat purveyed as kosher. In his response, published in Iggerot Mosheh, Yoreh De'ah, I, no. 20, Rabbi Feinstein takes it for granted that the procedure in question involves perforation of the keres, i.e., the rumen.",
+ "There is a controversy both in the Gemara, Hullin 50b, and among the early decisors with regard to the status of an animal whose keres has sustained a trauma of this nature. Shulḥan Arukh, Yoreh De'ah 48: 2, rules that the animal is a treifah. However, perforation of the keivah renders the animal a treifah according to all authorities. Statistically, the incidence of bloat is far less prevalent than that of LDA. The halakhic problems occasioned by procedures to correct each of these conditions are identical although, for some authorities, the resolution of those problems is somewhat different.",
+ "With regard to the question addressed to Rabbi Feinstein concerning the permissibility of meat slaughtered as kosher, Iggerot Mosheh explains that animals brought to market are permissible on the basis of the principle kol de-parish me-rubba parish and carefully delineates the parameters of that principle. The principle is applicable to situations in which both permitted and prohibited entities are known to exist but in which the prohibited entities are neither discernible nor known to be commingled with permitted entities. Put simply, the principle establishes that, if the majority of the entities are members of a permitted class and one of the entities becomes separated from the larger group, the separated entity is presumed to be one of the permitted majority rather than one of the prohibited minority. Quite apart from the question at hand, it is precisely that principle which must be relied upon in eating any animal product. Although the majority of animals (that are members of permitted species) are kosher, a significant minority are treifot. Since, with the exception of the lungs, there is no obligation to examine the animal's organs for possible treifot, and it is indeed impossible to examine a properly slaughtered animal for all possible forms of treifot, permissibility of the animal's meat rests upon the principle of kol de-parish me-rubba parish. Since none of the internal organs can be examined while the animal is yet alive, it is obvious that the permissibility of milk is also predicated upon this principle. Thus, the mere knowledge that the procedure in question is performed upon a minority of cattle presents no inherent halakhic problem; indeed, acknowledgment that a significant minority of animals are treifot is an accepted principle of Halakhah. Thus, under usual circumstances, milk is unquestionably permissible on the basis of the principle kol de-parish me-rubba parish.",
+ "It should not be thought that reliance upon kol de-parish is tantamount to acceptance of a leniency of some sort or that abjurance of such reliance constitutes a form of meritorious pietism. R. Moshe Sofer, Teshuvot Hatam Sofer, Oraḥ Hayyim, no. 83, s.v. u-mihu, observes that one who acts in accordance with this principle and then subsequently discovers that he has consumed meat of a non-kosher animal has committed no transgression whatsoever and requires no atonement \"for He who commanded and admonished with regard to the treifah is the One who commanded us to rely upon the majority.\" Rather, one who declines to be governed by the principle of kol de-parish demonstrates himself to be theologically suspect. The principle of kol de-parish, in its basic formulation, applies in situations in which both permitted and prohibited entities are known to be in existence but there is no knowledge that they have become commingled in a single recognizable group. The problem becomes more complex in situations in which it is known that a non-kosher entity has become commingled with kosher entities, e.g., it is known that a non-kosher animal is actually present within a specific herd. Under such circumstances each animal is prohibited as a safek treifah, i.e., as doubtfully kosher.",
+ "Nevertheless, even in such situations, most authorities maintain that any animal that becomes separated from the herd is permissible on the theory that the principle of kol de-parish establishes a presumption that the origin of the separated entity is from among the majority of entities within the larger group. Similarly, those authorities maintain that if a gentile separates an animal from the herd it is permissible on the basis of kol de-parish. Tosafot, Sanhedrin 80a and Zevaḥim 70b, rule that it is even permissible for a Jew to cause animals to become separated from the herd individually in order to acquire the status of permitted animals by virtue of kol de-parish. However, Shulḥan Arukh, Yoreh De'ah 110:6, follows the opinion of those who maintain that such a procedure is prohibited by rabbinic edict lest the individual err and remove the animal directly from the herd. In the latter case, the animal is forbidden since kol de-parish me-rubba parish is not applicable so long as the animals remain in situ. Rosh, cited by Tur, Yoreh De'ah 110, and apparently followed by Shakh, Yoreh De'ah 110:36, maintains that, once the presence of a treifah within the herd becomes known, all the animals are prohibited and the principle of kol de-parish me-rubba parish does not serve to confer status as a kosher animal upon an animal that became separated from the herd. However, even according to that opinion, animals acquired prior to discovery of the fact that there was a treifah in the herd remain permissible.",
+ "The halakhic issues affecting the kashrut of the milk posed by procedures utilized to correct LDA are analyzed by R. Shalom J. Gross in a relatively short but incisive discussion and in a wider ranging survey by R. Menasheh Klein. Both discussions appear in Der Algemeiner Journal, September 2, 1994, pp. 20-21. A brief item authored by R. Shlomoh ha-Kohen Gross, dayyan of the Belz community in Brooklyn, appears in the Tishri 5755 issue of Ha-Pardes.",
+ "Rabbi Shalom Gross carefully shows why the present situation regarding the kashrut of milk is halakhically different from the question of the kashrut of the meat of slaughtered animals as explicated by Iggerot Mosheh. One highly significant difference is not noted by Rabbi Gross, viz., the percent of beef cattle upon whom decompression of the rumen is performed in order to relieve bloat is far lower than the percent of dairy cows suffering from LDA. Indeed, even the incidence of LDA in beef cattle is believed to be far lower than among dairy cows. However, that factor, in itself, is of no consequence whereas the differences noted by Rabbi Gross are themselves halakhically dispositive. Following the position of Rosh and Shakh, Iggerot Mosheh pointedly comments that, when it is known that a particular cattleman is in possession of an animal that has been rendered a treifah as a result of a procedure of this nature, none of his animals may be purchased for kosher slaughter. Thus, the principle of kol de-parish does not at all apply in the case of milk acquired from a dairy farm in which even a single animal has been rendered a treifah in this manner. Moreover, declares Iggerot Mosheh, the non-Jewish seller has no credibility to represent any of his animals as free from that defect unless the existence of the treifah is known only through the owner's own admission or, alternatively, information establishing that a particular animal is free from the defect is disclosed by the seller in the course of casual conversation in a manner not designed to convey such information to the purchaser for any significant purpose (mesiaḥ le-fi tumo). Since many farmers customarily retain written or computerized records of all veterinary procedures performed upon dairy cows, whether or not such a procedure has been performed upon any of the farm's cows may be readily determinable. It is clearly mandatory to seek such information in order to become aware of problems of treifot when such information is available. In point of fact, when such a treatment has been performed, evidence of the incision can usually be seen by the naked eye unless a midline incision has been made, in which case it may not be readily visible after a period of approximately one year.",
+ "Fundamental to an analysis of the relevant halakhic principle is a point passed over in silence by Rabbi Gross, presumably because it is so obvious. The kashrut of animals brought to slaughter is predicated upon kol de-parish, i.e., a halakhic presumption with regard to each animal establishing that it is a member of the major class of kosher animals. That principle is not at all relevant to the status of milk collected from all cows on a farm known to have a treifah in its herd and mixed in common utensils. Since some of the milk is definitely non-kosher the only relevant principle is bittul be-rov, or \"nullification by the majority.\" Bittul be-rov does not apply antecedently to the non-kosher animal itself both because the non-kosher animal is recognizable and because living creatures are not subject to bittul or \"nullification.\" In practice, in order for bittul to occur, the quantity of kosher milk must not only be greater than the non-kosher milk but must be sixty times as great as the quantity of non-kosher milk. Stated somewhat differently, the non-kosher milk cannot exceed 1.63% of the total quantity of the mixture. Rema, Yoreh De'ah 81:2, rules that milk produced on a farm is permissible provided there are sixty times more kosher animals than treifah animals in the herd maintained on the farm. Absent information to the contrary, it is presumed that, on average, each cow yields an equal quantity of milk.",
+ "Thus, in the situation under discussion, it must be determined whether the cows subjected to a treifah-rendering procedure represent more or less than one-sixtieth of all the cows whose milk is commingled in the production process. Since the overall incidence of LDA in dairy cattle in some areas is between five and fifteen percent, it is highly likely that the milk coming from a farm in which surgical procedures to correct LDA are carried out must be regarded as non-kosher, particularly in areas in which the problem is routinely corrected by omentopexy or blind tacking. That, however, is a matter that must be determined with regard to each herd separately.",
+ "III. Organ Perforation and Treifut",
+ "As has been stated, an animal that has been treated for LDA by a method involving puncture of the abomasum is ostensibly a treifah. The Mishnah, Hullin 42a, lists perforation of the keivah or abomasum as one of the enumerated treifot. This provision of the laws of treifot is codified in Shulḥan Arukh, Yoreh De'ah 48:1.",
+ "Shulḥan Arukh, based upon the discussion of the Gemara, Hullin 49b, qualifies this ruling by stating that if the perforation is closed by fat lying upon the yeter, the inner or lesser curvature of the abomasum, the animal is kosher, whereas if it is closed by the fat of the keshet, or \"bow,\" i.e., the outer or greater curvature of the abomasum, the animal is not kosher. That provision is in accordance with a rule formulated in Yoreh De'ah 46:1 providing that, with a number of exceptions, a perforation \"closed\" by permitted fat adhering to an organ does not render the animal a treifah whereas the animal remains a treifah despite closure of a perforation by prohibited fat, or ḥelev. That qualification, however, is of no significance with regard to the matter under discussion. This principle reflects the consideration that a puncture that does not penetrate the full thickness of the wall of the organ does not render the animal a treifah. The fat described as \"closing\" the wound is depicted as a structure that congenitally adheres to the organ and is tightly attached to it. Therefore, the organ wall is not deemed to have been pierced in its entirety unless the layer of fat adhering to it has been penetrated as well. Once the organ is pierced, a receding overlay or growth of a layer of fat upon the opening cannot correct the defect any more so than does natural sealing of the wound or the growth of scar tissue. Rashi, Hullin, 43a, s.v. eino krum, carefully explains that a puncture can be \"closed\" by surrounding tissue only \"at the beginning\" but not by tissue that grows subsequently. As stated by the Gemara, Hullin 68b, \"a treifah animal, once it has been rendered a treifah, can never become permissible.\" A rather obvious ramification of this principle is that provisions regarding the \"closing\" of a wound by fat are restricted to situations in which the fat itself has not been pierced. The Gemara, Hullin 48a, states that an animal that has sustained a puncture that is sealed by adjacent tissue nevertheless becomes a treifah when the adjacent tissue is itself punctured. This point is readily grasped from the comments of Arukh ha-Shulḥan, Yoreh De'ah 46:8. R. Shalom Mordecai Schwadron, Da'at Torah, Yoreh De'ah 46:4, in discussing the case of a needle that has penetrated the wall of an organ and has become lodged in fat that seals the hole, states quite explicitly that in circumstances in which there is reason to suspect that a needle \"may have pierced through and through\" but subsequently became partially withdrawn within the overlay of fat with resultant healing of the punctured portion vacated by the needle, the animal is a treifah.",
+ "It is thus readily apparent that the provisions recorded in Yoreh De'ah 46:1 and 48:1 apply solely to situations in which the perforation of the organ originates in the internal portion of the organ, e.g., the animal swallows a needle or other sharp object that penetrates the wall of the organ but fails to puncture the covering layer of fat as well. These provisions have no application in situations involving surgical incision of the organ since, in such cases, the surrounding layer of fat must be incised in order to penetrate the wall of the organ. Moreover, the abomasum is generally decompressed by piercing the area covered by the keshet, or prohibited fat, that does not at all serve as a barrier, i.e., does not serve to \"stop\" the puncture.",
+ "Another qualification of the general rule regarding perforation of organs rendering an animal a treifah is considered by R. Judah Asad, Teshuvot Maharya, Yoreh De'ah, no. 60. That discussion is directly relevant to the halakhic analysis of the procedure employed in treating LDA because, in decompressing the abomasum, the puncture is made at an angle such that the internal layer is pierced at a distance of approximately one-half inch from the puncture of the external layer. Angled decompression is the procedure of choice because it serves both to decrease the likelihood of infection and to hasten healing of the wound.",
+ "Mahari Asad's interlocutor suggested that oblique penetration of an organ such as the rumen should not render the animal a treifah. A puncture that is blocked by flesh, or even by permitted fat, does not render the animal a treifah since the hole is regarded as incomplete. Similarly, he argued, an angled puncture leaves tissue covering the hole at every point of penetration; accordingly, at no point does there result a hole that is not blocked. Mahari Asad rejects that contention by demonstrating that such an inference is contradicted by statements of Teshuvot ha-Rashba. Indeed, Teshuvot ha-Rashba, I, no. 383, writes that perforation of the small intestine renders the animal a treifah \"whether the hole is straight or whether the hole is angled.\" Furthermore, argues Mahari Asad, the argument is cogent only if the hole in the wall of the organ is made incrementally in a manner such that tissue collapses and \"closes\" each small punctured segment before the next is made, but does not apply when the entire length of a needle or instrument is allowed to penetrate the entire wall at once and to remain in place until the accumulated gas is removed. Under such circumstances, even an angled puncture is not blocked.",
+ "The identical point was made earlier by Teshuvot Noda bi-Yehudah, Yoreh De'ah, Mahadura Tinyana, no. 18, sec. 5. Noda bi-Yehudah similarly dismisses peremptorily the contention that an angled puncture does not render an animal a treifah with the comment that his interlocutor \"has not spoken properly\" and that \"it is not necessary to rebut a matter that is a nullity.\" R. Shlomoh Kluger, Teshuvot Tuv Ta'am va-Da'at, II, no. 178, discusses a similar question with regard to the puncture of the stomach of a fowl. Teshuvot Tuv Ta'am va-Da'at cites the comments of Rosh, Hullin 43a, indicating that the animal is a treifah because a puncture makes it possible for partially digested food to invade the abdominal cavity and concludes that the same result will occur if the puncture is angled. Earlier, in discussing a question involving a needle found in the wall of a goose's stomach, Teshuvot Radvaz, IV, no. 58, states that he would not rely upon the fact that the needle was crooked but employs it only as a snif, or additional consideration, in light of other factors that render the animal permissible. This consideration is, however, relied upon by R. Yonatan Eybeschutz, Kereti u-Peleti, Yoreh De'ah 31:1. Kereti u-Peleti appears to be unaware of the contradictory authoritative opinion of Teshuvot ha-Rashba, as indeed also seems to be the case with regard to the earlier cited authorities who independently reached a conclusion identical to that of Rashba.",
+ "It must be emphasized that the fact that an animal whose abomasum has been punctured can, and regularly does, survive more than twelve months is entirely irrelevant. It is indeed true that the Sages did declare that, as a general rule, a treifah cannot survive more than twelve months. It is also perfectly clear that our own observations, as well as the observations of rabbinic scholars who lived centuries ago, indicate that this principle, even as a general rule admitting of exceptions, is at variance with empirical reality. Nevertheless, as definitively stated by authorities as early as Rambam, Hilkhot Sheḥitah 10:13, and Teshuvot Rivash, no. 447, and as recent as Hazon Ish, Yoreh De'ah, Hilkhot Treifot 5:3, the changed circumstances we observe have no bearing upon determinations of Halakhah. A full discussion of why this is so is beyond the scope of the present endeavor.",
+ "Survival for a period of twelve months is a significant phenomenon only in the case of a safek treifah, e.g., when there is reason to suspect that one of the organs whose perforation renders an animal a treifah had been punctured but there is no certain knowledge of that fact. Under those circumstances, survival for a period of twelve months is acceptable as establishing that perforation of the organ did not, in fact, occur. Although other authorities disagree, Shakh, Yoreh De'ah 57:48, citing Yam shel Shlomoh, Hullin 3:80, extends this principle to situations in which it is certain that a perforation has been made but there exists an unresolved halakhic controversy with regard to whether a perforation of the nature in question renders the animal a treifah. This view serves as the basis of the ruling of Binat Adam, Sha'ar Issur ve-Heter, no. 26, cited by Pitḥei Teshuvah, Yoreh De'ah 48:2, to the effect that an animal that survives twelve months subsequent to puncture of its rumen is kosher. The Gemara, Hullin 52b, records a controversy with regard to the particular area of the rumen that must be punctured if the animal is to be considered a treifah. As Rashi indicates in his comments, since there is no definitive resolution of that controversy, we treat perforation of any part of the rumen as a treifah. Binat Adam asserts that, since the matter is unresolved, perforation of any part of the rumen creates only a state of doubt that is resolved by survival for a twelve month period.",
+ "This issue is totally irrelevant in situations involving puncture of the abomasum. Puncture of any part of the abomasum unquestionably renders the animal a treifah according to all authorities and, as Rema, Yoreh De'ah 48:18, definitively rules, an animal that has certainly sustained a wound rendering it a treifah is prohibited as a treifah even if the animal survives more than twelve months.",
+ "There does exist one latter-day source that can be cited in support of a permissive view with regard to the entire problem. In sharp contradiction to what has been stated earlier, R. Aaron ha-Levi (Re'ah), in his commentary Bedek ha-Bayit on Rashba's Torat ha-Bayit, Hilkhot Bedikah, p. 34b, declares that, although the perforation of specified organs renders an animal a treifah, nevertheless, with the exception of the lungs and the esophagus, a puncture that is later sealed by a \"membrane\" (krum she-alah maḥamat makah) does not render the animal a treifah. That position is rebutted by Rashba in his Mishmeret ha-Bayit, ad locum, and is apparently rejected by virtually all later authorities with the notable exception of Ra'avan as cited by Torat Hayyim in the latter's commentary on Hullin 43a. Although the position of Re'ah is rejected by subsequent authorities, one latter-day authority, R. Menachem Mendel Kargau, contends that the rejection of Re'ah's opinion by Rashba and by those who accepted Rashba's view is not categorical. R. Mendel Kargau argues that Re'ah's position is rejected because a \"membrane\" that grows at the site of a perforation is likely not to be strong in nature and hence may tear; consequently, such a \"membrane\" is not permanent and does not serve as a proper seal. Accordingly, argues Rabbi Kargau, if the \"membrane\" is indeed strong and permanent, as evidenced by the fact that the animal has survived for a twelve month period, Rashba would concede that development of a \"membrane\" of such nature indicates that the animal is not a treifah. Moreover, argues Rabbi Kargau, since the basic issue with regard to the seal of a puncture by a membrane is the subject of controversy between early-day authorities, viz., Re'ah and Rashba, the position of Yam shel Shlomoh and others who maintain that in cases of \"doubt\" arising from halakhic controversy survival for a twelve-month period is sufficient evidence that the animal is not a treifah may be relied upon in order to rule that the animal is kosher. Nevertheless, Rabbi Kargau concludes his responsum with a disclaimer stating that he cannot rule leniently \"in a matter [with regard to which] I do not have a tradition from my teachers, nor have I found explicit permissibility in [scholarly] works.\" R. Mendel Kargau's responsum was published in its entirety by R. David Zevi Hoffmann in the latter's Melammed le-Ho'il, II, no. 9. Melammed le-Ho'il appends a short comment in which he concludes that \"one who relies upon the decision of R. Mendel Kargau, particularly in time of need, is not to be rebuked.\"",
+ "It must be emphasized that Rabbi Kargau was willing to entertain the possibility of a permissive ruling only in the wake of the cow's survival for a twelve-month period. However, since survival for that period simply serves to demonstrate that the \"membrane\" sealing the wound is indeed \"strong and permanent,\" it might perhaps be argued that with regard to a procedure, such as that of a puncture made in the course of correcting LDA, in which it is known that countless numbers of animals have survived with normal bovine longevity, that phenomenon itself demonstrates that the \"membrane\" grown by the animal to heal such a wound is indeed \"strong and permanent.\" Nevertheless, such an argument takes the position of Rabbi Kargau and Melammed le-Ho'il beyond their own announced conclusion. The weight to be given even to Melammed le-Ho'il's explicitly declared opinion, particularly in light of the fact that it is not widely cited, is a matter for determination by individual rabbinic decisors. It is perhaps instructive that the argument formulated by Rabbi Kargau is not advanced in any of the classic responsa discussing relief of bloat by means of decompressing the rumen and Rabbi Kargau's line of reasoning is ignored in the relatively few recent discussions of treatment of LDA.",
+ "IV. Reliance upon Bittul or Nullification",
+ "In summation, it may be said that, according to the vast majority of rabbinic decisors, if more than approximately 1.63% of the dairy cows in a herd or on all the farms from which milk is collected by a dairy for processing have been treated for LDA in a manner rendering them treifot, and assuming that the average milk production of such cows is roughly equal to the average milk production of the rest of the herd, all milk produced by that dairy is forbidden. Similarly, if an animal has been surgically treated for LDA but it is not known whether the treatment employed involved the puncture of the abomasum the animal must be regarded as a safek treifah. Such a situation is entirely analogous to the case of the safek derusah, i.e., an animal that has been clawed in the thoracic area by a venom-bearing beast but it is unknown whether or not its trachea or esophagus has been affected, that is declared by the Gemara, Hullin 43b and 53a, to be a safek treifah. In such situations the animal is no longer regarded as a member of the class of the majority of animals that are kosher. Accordingly, if more than 1.63% of the animals are treifot or safek treifot the milk is forbidden. If, however, it is impossible to determine whether the total number of animals treated for LDA exceeds 1.63% but, as is usually the case, the number certainly does not exceed fifty percent of the herd, the milk is permissible. However, as explained by Taz, Yoreh De'ah 98:6, this rule applies only if it is entirely impossible for any person to make such a determination. Mere inconvenience entailed in making such a determination or inability of an individual or a group of individuals to make such a determination does not render the milk permissible. In practice, the number of animals that have been surgically treated for LDA is readily determinable by visual examination; hence the number of treifot or safek treifot is indeed determinable. This halakhic provision with regard to doubt concerning the percent of animals rendered treifot is, however, applicable with regard to cheese that has been processed some time in the past in situations in which the cows from which the milk was derived can no longer be examined.",
+ "To some, it is embarrassing in the extreme that the problem involving a biblical prohibition was discovered in the production of milk under rabbinic supervision. That supervision is designed to avoid the rabbinic transgression involved in drinking the milk of an animal milked by a non-Jew other than in the presence of a Jew lest the milk be adulterated with milk derived from a non-kosher species. Kashrut supervisors and supervising agencies acted in good faith since, being unaware of the prevalence of procedures that render cows treifot, their supervision was limited to the actual milking process. In the absence of a known defect rendering the animal a treifah, they were under no obligation to examine each cow for possible treifot but were fully justified in relying upon the principle of kol de-parish. Now that it is recognized that there is a strong likelihood of known, easily identified treifot within any given herd, one may presume that henceforth such supervision will include proper vigilance with regard to the status of the cows as well and that any cow found to be a treifah or safek treifah will be culled from the herd.",
+ "The incident has, however, highlighted a problem with regard to unsupervised milk. Many have relied upon the opinion of those rabbinic scholars who have ruled that, for purposes of the rabbinic prohibition attendant upon milk milked by a non-Jew, fear of penalties imposed by governmental authorities for adulteration of milk substitutes for the presence of a Jew at the milking of the cow. If, as appears to be the case, the records maintained by most dairymen will readily yield the information that more than 1.63% of dairy cows on farms from which such milk is collected have been treated for LDA, such milk may well be prohibited for an entirely different reason. A similar problem exists with regard to butter that is generally produced without rabbinic supervision.",
+ "The issue that remains to be addressed is whether it is permissible to purchase milk from a farm or dairy when it is known that the milk derived from treifah cows is less than 1.63% of the total milk processed at any given time. As recorded in Shulḥan Arukh, Yoreh De'ah 99:5, milk that is intentionally nullified by a Jewish farmer in such a manner is prohibited to the farmer and to any person on whose behalf he intentionally nullified the non-kosher milk but is permitted to all others.",
+ "With regard to a product sold on the open market the issue is somewhat different. In such situations, the question is whether or not it is permissible to consume a product that has been nullified for the benefit of the general public rather than on behalf of a particular consumer. Teshuvot Rivash, no. 498, rules that nullification on behalf of the general public is tantamount to nullification for the benefit of the particular consumer and hence the food product is prohibited to all. Rivash's ruling is cited by R. Akiva Eger in his gloss to Yoreh De'ah 99:5 and in Teshuvot R. Akiva Eger, no. 207, and is the position of Pri Hadash, Yoreh De'ah 99:13, as well. This position is in conflict with the view of Maharshal, Yam shel Shlomoh, Hullin 7:59 and Taz as reflected in the comments of Taz, Yoreh De'ah 99:10. R. Yechiel Ya'akov Weinberg, Seridei Esh, II, no. 69, cites these conflicting views with the comment, \"Who can be lenient contrary to Rivash and R. Akiva Eger in a matter with regard to which they were stringent?\"",
+ "These provisions are limited to situations in which the seller is a Jew. The halakhic issues in situations in which the producer or seller is a non-Jew are more complex. Teshuvot Radvaz, III, no. 547, rules that the principle of nullification does not at all apply to food purchased from a non-Jew and apparently bases his position upon two separate considerations: 1) Non-kosher food that has been nullified is permitted only post factum because of the financial loss involved. Prospective purchase from a non-Jew, argues Radvaz, cannot be considered a post factum situation since refraining from making the purchase will not result in a loss. 2) Were the nullified food product acquired from a non-Jew to be accepted as permissible, the purchaser might err on future occasions and direct a non-Jew to adulterate non-kosher foods on his behalf. The first consideration is negated by the opinion of Teshuvot ha-Rashba as cited by Radvaz who permits the purchase of food cooked by a non-Jew in non-kosher utensils that have not been used for twenty-four hours previously on the ground that such food is always permitted post factum. This is also the position of Taz, Yoreh De'ah 108:4, and Rema, Yoreh De'ah 122:6. In opposition to the position of Teshuvot Radvaz, Rema, Yoreh De'ah 96:4, rules that foods that may questionably contain non-kosher ingredients, but in small quantities so that it is certain that if such ingredients are present nullification has occurred, may be purchased from a non-Jew. Moreover, Rema, Yoreh De'ah 114:6, rules that foods in which the non-kosher ingredients have been nullified may be purchased by a Jew. However, those rulings may be limited to situations in which the adulteration was carried out by the non-Jew for his own benefit. Thus Rema, in these rulings, regards nullification even in the jurisdiction of a non-Jew as creating a post factum situation. Moreover, Teshuvot Radvaz, II, no. 580, contradicts his own earlier cited position in permitting the purchase of nullified orlah from a non-Jew. However, elsewhere, Rema, Yoreh De'ah 108:1, rules that purchase of a food containing non-kosher ingredients is not regarded as post factum and, accordingly, is not permissible unless similar unadulterated food is unavailable.",
+ "This controversy is reflected in numerous later sources as well. Teshuvot Maharam Lublin, no. 104, explicitly rules that non-kosher food that has been adulterated by a non-Jew may subsequently be purchased by a Jew unless the Jew has explicitly directed the non-Jew to adulterate the non-kosher food. Maharam of Lublin addresses a question involving facts remarkably similar to the problem under discussion. A Jew had contracted with a non-Jewish nobleman to buy butter and cheese produced on the latter's farm. Subsequently, a number of the animals became treifot but the milk of those animals, when combined with the milk of other animals on the farm, was less than 1.63% of the total quantity. Maharam of Lublin ruled that, since adulteration took place under the jurisdiction of the non-Jew, the butter and cheese were permissible. Basing himself upon that responsum of Maharam of Lublin, Teshuvot Hatam Sofer, Yoreh De'ah, no. 62, goes beyond that ruling in addressing the problem of a Jew whose herd of cattle was attacked by wolves with the result that a number of his cows became treifot. Hatam Sofer permitted that person to sell his entire herd to a non-Jew and to repurchase the milk that was nullified by the non-Jew.",
+ "Numerous additional sources supporting both sides of this dispute are cited by Darkei Teshuvah 108:26, Sedei Hemed, Ma'arekhet ha-Kelalim, Ma'arekhet ha-Alef, sec. 360 and Sedei Hemed, Pe'at ha-Sadeh, Kelalim, Ma'arekhet ha-Alef, sec. 10. Erekh ha-Shulḥan, no. 115, sec. 7, citing Teshuvot Tashbaz, III, no. 10, distinguishes between purchase from a private party and purchase from a non-Jewish merchant. Tashbaz permits the purchase of such foodstuffs from a private party but prohibits such purchase from a merchant. Tashbaz asserts that nullification by a merchant who engages in such practices on a regular and ongoing basis cannot be regarded as giving rise to a post factum situation.",
+ "Even if the permissive view of Maharshal and Taz is adopted with regard to non-kosher food nullified by a non-Jew the matter is not entirely resolved since all concede that if a non-Jew is requested to combine kosher and non-kosher food so that the non-kosher food becomes nullified the resultant mixture is forbidden to the Jew.",
+ "There are indeed circumstances in which a local rabbi may make inquiries with regard to the kashrut of a given product and, upon becoming aware that only a small quantity of a non-kosher ingredient is present in the product, the rabbi, in reliance upon the heretofore cited permissive view, might inform all interested parties that the product is acceptable as kosher. Since the gentile proprietor is not at all interested in, or even aware of, kashrut problems that are of concern to potential Jewish customers, the rabbi might even issue a letter or certificate to that effect.",
+ "It would, however, be naive in the extreme to assume that all kashrut certification, particularly of major brands, is of that nature. Large manufacturers typically solicit kashrut endorsement and quite frequently modify their product in order to make it acceptable to the kosher consumer. In soliciting kashrut endorsement, and with it a Jewish clientele, the manufacturer, in effect, declares that he intends to manufacture a product for the Jewish market and to nullify non-kosher ingredients on behalf of Jewish customers. Hence, the issue is reduced to the earlier discussed controversy with regard to whether food products adulterated for the benefit of the general public, rather than for a specific individual, may be freely purchased subsequent to nullification."
+ ],
+ "Chapter VIII The Whiskey Brouhaha": [
+ "Apple wine of a gentile taken from the warehouse, the stock of a basket is permitted, but if it is sold on the counter it is prohibited because they mix wine with it.",
+ "AVODAH ZARAH 40b",
+ "A recent tempest in a whiskey tumbler which appropriately enough erupted shortly before Purim 1999 has served to amuse readers of the Anglo-Jewish press. In point of fact, the issue involves an interesting and intricate decades-old controversy with regard to several fine points of Jewish law. The media coverage did, however, highlight an unfortunate sociological phenomenon that has become manifest in recent years. Questions involving cut and dry issues of fact and garden-variety halakhic decision-making have come to be viewed through a distorted lens of religious factionalism. Knowing, as they did, that the issue reflected a halakhic debate that took place some forty years ago, knowledgeable readers of the press reports of novel stringencies and of accompanying sociological analyses were bemused. In this country, the late 1940s were hardly an age of ḥumra (religious stringency). In the intervening years, the ongoing problem regarding these alcoholic beverages as well as the conflicting views with regard to its resolution were well known in all sectors of the observant community. And, as is the case with regard to many areas of halakhic practice, each person conducted him or herself in a manner he or she deemed to be appropriate without thereby contributing to the growth of communal divisiveness.",
+ "It is hardly a secret that there are significant numbers of affluent people within the observant Jewish community. Nor is it a surprise to learn that at least some of those individuals have not only acquired a taste for fine wine and expensive whiskey but that they also insist that the liquor they imbibe be produced in accordance with the same high standards of kashrut to which they adhere in their cuisine. Accordingly, kashrut certifying organizations, true to their calling and attuned to the needs of their constituents, have responded by meticulously investigating methods of whiskey production and by making pertinent information with regard to specific brands of liquor, the vast majority of which are not produced under rabbinic supervision, available to the kosher consumer.",
+ "Publication of that information seems to have struck a raw nerve in some quarters among individuals who perceive selectivity in consumption of scotch and blended whiskeys to be a newly fabricated stringency and but another fusillade in a ḥumra campaign designed to prohibit pleasures that have always been permitted. One sociologist has been quoted as ascribing to proponents of a movement to ban scotch and blended whiskey motives having nothing at all to do with kashrut. He regards rabbinic censure of those liquors as a means of controlling the growth of so-called \"kiddush clubs\" whose members have the temerity to seek alcoholic refreshment during services. He suggests that, for some rabbis, kiddush clubs may even represent a personal threat because tippling is more popular than the rabbi's sermon.",
+ "The critics seem to be oblivious to the fact that comprehensive analyses of the kashrut issues and rulings both pro and con appeared in rabbinic journals some four decades ago. The sociologists seem to think that rabbinic personalities who have voiced opinions regarding this matter are unmindful of the fact that consumers of these alcoholic beverages, including members of kiddush clubs, can readily avail themselves of any one of the many brands pronounced by kashrut organizations to be kosher beyond cavil. In disseminating such information, kashrut organizations have not been advancing the \"iron law of ḥumra\" by promoting ever more minute strictures of Jewish law. Quite to the contrary, they have made it possible for the many among their constituents who for decades have abstained from all scotch and blended whiskeys to partake of those brands that do not offend their standards.",
+ "I. Nullification of Forbidden Wine",
+ "As is well-known, wine that has been handled by a non-Jew is forbidden to a Jew. The admixture of wine or wine products in other alcoholic beverages is a centuries-old practice. The problem this poses regarding the kashrut of alcoholic beverages is reflected in the admonition recorded in Shulḥan Arukh, Yoreh De'ah 114:6: \"One must be careful to examine and investigate whether gentiles who make alcoholic beverages from honey put residue of wine in [those beverages].\" Earlier, in the same chapter, Yoreh De'ah 114:4, Shulḥan Arukh forbids the purchase of various alcoholic beverages from non-Jews when the cost of wine is less than those beverages \"because we are concerned lest they mix wine [with the beverages].\"",
+ "A modern-day manifestation of that problem was first publicized in print by the late Rabbi Pinchas Teitz. In a contribution to the Heshvan 5709 issue of Ha-Pardes Rabbi Teitz reported that upon investigation he had found that many blended whiskeys contain up to two and a half percent of sherry wine but, as permitted by law, the distillers fail to disclose that fact on the label. He also found that, in some instances, glycerine was used as a softening and smoothing agent. In a later article, Ha-Pardes, Nisan 5710, Rabbi Teitz credits the late Rabbi Eliezer Silver with having been the first to publicize the existence of the kashrut problem associated with blended whiskey. A quite similar problem exists with regard to scotch and Irish whiskey aged in wood casks. That problem was first reported by Rabbi Yitzchak Ya'akov Weisz in an article published in the British rabbinic journal, Yagdil Torah, no. 27 (Shavu'ot, 5716) and subsequently included in his collected responsa, Teshuvot Minḥat Yizḥak, II, no. 28. Some brands, particularly some of the more expensive ones, are aged in barrels previously used in the processing of sherry wine or, at times, of port. The Macallan, for example, boasts that the scotch they produce is aged in sherry casks exclusively, while Glenmorangie ten-year-old (but not eighteen-year-old) scotch is aged entirely in bourbon casks. Some distillers utilize only otherwise unused wooden casks, others use a medley of different casks. The problem is more serious with regard to single malt scotch than with regard to blended scotch whiskey because when whiskeys from different sources are combined there is greater likelihood that only a small portion of the blend is derived from whiskey that was aged in wine casks with the result that the \"taste\" (ta'am) of the wine that is present is nullified by virtue of adulteration.",
+ "An excellent review of the details of the production of alcoholic beverages as well as references to the possible halakhic ramifications were presented by Rabbi Tzvi Rosen in \"Kashrus on the Rocks,\" Kashrus Kurrents (Summer, 1998), vol. 18, no. 2, pp. 8-18. An earlier pamphlet titled L'Chaim! OU Beverage Guide (New York, 1996), compiled by Rabbi Yosef Eisen and published by the Kashrut Division of the Orthodox Union, contains a survey of the halakhic issues and a detailed list of recommended and not recommended beverages. An \"Alcoholic Beverage Guide\" was also published in the above-cited Kashrus Kurrents and reprinted in the December, 1998 issue of Kashrut Magazine.",
+ "The presence of a small quantity of wine does not necessarily render whiskey non-kosher. The generally applicable rule is that the non-kosher status of a foodstuff is nullified upon adulteration with sixty parts of a kosher substance. However, the rule with regard to wine is somewhat different. As recorded in Shulḥan Arukh, Yoreh De'ah 134:5, wine diluted with six parts of water is deemed to have lost its characteristic identity and hence is permissible. The rule regarding nullification of wine that has become adulterated with liquids other than water is a matter of dispute. Rema, Shulḥan Arukh, Yoreh De'ah 114:4, followed by R. Shabbetai ha-Kohen, Nekudat ha-Kesef, and R. Yonatan Eybeschutz, Matteh Yonatan, ad locum, maintains that the rule is limited to adulteration of wine with water and is based upon the premise that water in that proportion completely adulterates the taste of wine, leaving any residual taste unpleasing to the palette. However, other liquids, maintains Rema, do not have that effect with the consequence that non-kosher wine becomes nullified only in sixty parts of other beverages. Taz, Yoreh De'ah 114: 4, challenges Rema's view and asserts that all beverages have an equally deleterious effect upon wine and hence wine becomes nullified by reason of adulteration when mixed with six parts of any beverage. Taz' view is accepted by Magen Avraham, Oraḥ Hayyim 204:16; Pri Hadash, Yoreh De'ah 114:10; Maḥazit ha-Shekel, Oraḥ Hayyim 204:16; and by a host of later authorities.",
+ "II. Wine Used to Impart Flavor",
+ "Nevertheless, reliance upon the position of Taz does not necessarily resolve the problem. The principle of nullification is based upon the premise that the taste of the non-kosher substance is no longer discernible when submerged in a massive quantity of foodstuff having a different taste. That is clearly not the case with regard to pungent substances such as spices and the like. Accordingly, Rema, Yoreh De'ah 98:8, records the cogent principle that items designed to contribute flavor (le-ta'ama avida) are not nullified \"even in a thousand\" parts. Rambam, in his Commentary on the Mishnah, Orlah 2:10, specifically enumerates wine, when used for flavoring, as a member of the class of foodstuffs that are not subject to nullification. The obvious implication is that, since wine is added to blended whiskey to enhance the taste rather than as an economy measure, the principle of nullification is not applicable. The same is true with regard to whiskey aged in wine casks since the purpose of using such casks is to enhance the taste of the whiskey. In the responsum referred to previously, secs. 5-9, Rabbi Yitzchak Ya'akov Weisz endorses Rabbi Teitz' view that even Taz concurs that, when added for flavor, wine is not nullified in six parts of another liquid.",
+ "Rabbi Teitz further notes that Teshuvot ha-Rashba, III, no. 214, maintains as a blanket rule that any item customarily mixed with other foodstuffs is not subject to nullification by virtue of adulteration. That ruling is codified by Shulḥan Arukh, Yoreh De'ah 134:14. However, as recorded by Ran, Avodah Zarah 29b, both Ri mi-Gash and Rambam reject Rashba's position. It may be noted that Noda bi-Yehudah, Mahadura Tinyana, Yoreh De'ah, no. 56, followed by Gilyon Maharsha, Yoreh De'ah 134:13, accepts the permissive view. Nevertheless, Rabbi Teitz endeavors to show that even those authorities would concede that Rashba's position is correct with regard to nullification of forbidden wine.",
+ "Responding to Rabbi Teitz' objections in a contribution to the Shevat 5710 issue of Ha-Pardes, Rabbi Chaim Mednick of Chicago concedes that, according to the authorities who maintain that wine is treated as all other forbidden foods insofar as nullification in liquids other than water is concerned, blended whiskey cannot be regarded as acceptable. However, argues Rabbi Mednick, the authorities who rule that wine is nullified in six parts of other liquids maintain that position, not because the taste of the wine cannot be detected in such mixtures, or because wine in that proportion mars the taste of the beverage, but because, in their view, only beverages that are identifiable as wine are usable for idolatrous libations and, accordingly, mixtures that do not have that characteristic are not included in the ban. Consequently, argues Rabbi Mednick, even if the wine is utilized as a flavoring agent, the mixture is permissible. Rambam's comment asserting that wine used for flavor is never nullified is dismissed by Rabbi Mednick as limited to wine of orlah (the prohibited fruit produced by a tree or vine during the first three years subsequent to planting) on the contention that, since orlah is nullified only in a hundred parts of another substance, orlah remains prohibited even when it no longer has the characteristics of wine. Hence, argues Rabbi Mednick, it is reasonable to conclude that if wine of orlah is used to flavor another substance it is never nullified.",
+ "Rabbi Mednick bases this view upon the fact that, although wine touched by pagans was originally forbidden because of a fear that a libation may have been poured from the wine thereby rendering the wine impermissible by virtue of having been utilized as an idolatrous sacrifice, the Sages later prohibited the wine of all gentiles, even those who are not idolaters, because of a fear that fraternization and social intimacy associated with convivial consumption of wine would lead to intermarriage. Although Tosafot, Avodah Zarah 29b, regard the latter edict as a mere expansion of the older prohibition, Rabbi Mednick avers that Rashi, Avodah Zarah 36b, regards it as an entirely independent edict. Accordingly, Rabbi Mednick develops the notion that, for Rashi, albeit not for Tosafot, the Sages forbade only the consumption of a beverage identifiable as wine with the result that other beverages containing an admixture of wine are permissible even if the taste of wine is recognizable.",
+ "Rabbi Teitz' rejoinder to that argument was published in the immediately following issue of Ha-Pardes, Adar 5710. Rabbi Teitz astutely notes that, in two separate comments, Yoreh De'ah 114:4 and Yoreh De'ah 114:16, Taz challenges Rema's statement requiring sixty parts of liquids other than water to nullify wine and asserts that six parts of any liquid is sufficient, but maintains silence with regard to Rema's ruling, Yoreh De'ah 114:6, to the effect that wine designed to enhance flavor is never nullified.",
+ "Rabbi Teitz further cites the ruling codified by Shulḥan Arukh, Yoreh De'ah 123:15, to the effect that bread in which the residue of prohibited wine has been used as a leavening agent is forbidden. That ruling, which is accepted by all authorities, reflects a notion similar to the rationale underlying the ruling that ingredients designed for flavoring are not subject to nullification. Such ingredients are not nullified because their flavor is not overpowered even by copious quantities of other foodstuffs and hence the flavor of the forbidden ingredient is always perceived; similarly, a leavening agent, no matter how minute, is always deemed to be present in the bread. The prohibition regarding bread baked in this manner, despite the fact that the wine derivative represents only a tiny fraction of the total volume of the bread, is evidence refuting Rabbi Mednick's contention that the authorities who assert that forbidden wine is always nullified in six parts maintain that position even when the wine is used as a flavoring agent.",
+ "Continuing the debate, Rabbi Mednick responded to that argument in the Sivan 5710 issue of Ha-Pardes by citing a comment of Rabbenu Shimshon in the latter's commentary on Tevul Yom 3:4. According to biblical law, terumah that is mixed with a similar species of ordinary food is nullified in instances in which the terumah represents less than fifty percent of the resultant mixture. Nevertheless, in elucidating the statement of the Mishnah declaring that when sourdough of terumah is used to leaven bread the bread must be treated as terumah, Rabbenu Shimshon comments that, despite the fact that the quantity of terumah relative to the total mixture is minuscule, the rule recorded in the Mishnah does not constitute a rabbinic stringency negating the principle of nullification but is biblical in nature. Rabbi Mednick attempts to explain the nonapplicability of the principle of nullification by asserting that the rule with regard to sourdough reflects a unique concept. Bread made from dough that does not rise is not bread in the conventional sense of the term. Hence, when a person is confronted by bread he clearly perceives that a leavening agent must be present. A prohibited substance that is recognizable is never subject to nullification. Consequently, the sourdough, regardless of its quantity or the proportion in which it is present, is deemed to have infused the entire dough. Since the sourdough is regarded as extant and identifiable in every particle of dough, the entire bread is treated as terumah. Similarly, argues Rabbi Mednick, when used as a leavening agent, wine detritus renders the bread impermissible because the wine residue is deemed to be recognizable and hence not subject to nullification by virtue of adulteration.",
+ "Rabbi Mednick's point is contradicted by at least one authority. Hokhmat Adam 80:2 follows Taz in ruling that wine is nullified when mixed with six parts of any liquid. Nevertheless, Hokhmat Adam 75:6 records that, when used for flavoring, wine can never be nullified. Hokhmat Adam certainly did not accept the notion that, according to the authorities who maintain that wine is nullified by six parts of any liquid, it is nullified even when utilized for its flavor.",
+ "Rabbi Teitz apparently communicated his views to R. Moshe Feinstein some time before their publication in Ha-Pardes. In a response to Rabbi Teitz dated erev Rosh Hodesh Adar II, 5708 and later published in Iggerot Mosheh, Yoreh De'ah, I, no. 62, Rabbi Feinstein reports that, in general, he abstains from drinking blended whiskey and commends Rabbi Teitz for having arranged for kashrut supervision on behalf of one distillery thereby assuring that alcoholic beverages produced by that firm have no admixture either of wine or of glycerine. Nevertheless, Rabbi Feinstein declares that, as a matter of normative law, blended whiskey is permissible. He relies primarily upon the view that non-kosher wine is nullified by adulteration in six parts of any permissible beverage. Rabbi Feinstein further adds that Shakh, Yoreh De'ah 114:21, rules that since, in contemporary times, the prohibition against wine handled by a non-Jew is rabbinic in nature, if it is known that at least one of the beverage purveyors does not adulterate his wares with wine, the beverages of all purveyors are permitted, provided that there is no information indicating that the seller does introduce wine into his product. Accordingly, argues Iggerot Mosheh, since there are at least some manufacturers of blended whiskey who do not use wine in their formulae, all blended whiskey is permissible unless it is known that a particular brand contains wine. In point of fact, such information in readily available from all major distillers and has been compiled by various kashrut supervisory organizations. As a result, in many cases, whether or not a particular brand of whiskey is free of wine can be determined with little difficulty.",
+ "The argument that, when utilized for the purpose of imparting flavor to another food or beverage, wine does not become nullified is refuted by Iggerot Mosheh, Yoreh De'ah, I, no. 63, on the basis of the discussion of the Gemara, Bava Batra 97a. The Gemara describes a process of soaking pressed grapes in water as a result of which the quantity of grape-flavored liquid recovered at the end of the process is somewhat greater than the quantity of water poured over the grape residue at the outset. That phenomenon is clearly attributable to the fact that residual liquid naturally present in the grapes is leached out of the pulp by the water that is added. Since this occurs by design, the process is obviously undertaken in order to extract the remaining juice from the grape dregs in order to \"flavor\" the water which is then fermented in order to produce a type of wine. The Gemara explains that, for purposes of tithing and pronouncement of the appropriate blessing, the liquid is not deemed to be wine despite the fact that the taste of grapes is clearly perceived by the palate. The Gemara explains the underlying principle in declaring, \"Do you think it is wine? It is mere acid (kiyuha).\" Tosafot, ad locum, describe the grape detritus from which the wine is produced as \"mere soil.\"",
+ "Although, as noted earlier, Rambam's opinion as expressed in his Commentary on the Mishnah is that wine used as flavoring is never subject to nullification, Iggerot Mosheh opines that the word \"wine\" crept into the published version as a result of scribal error. In support of that conclusion Iggerot Mosheh points to the verbatim quotation of Rambam's comment in his Commentary on the Mishnah as it appears in Pri Hadash's gloss to Yoreh De'ah 98:8. In his citation Pri Hadash omits reference to wine as a \"spice\" to which the usual rules of nullification do not apply. Moreover, argues Iggerot Mosheh, even if the published version of Rambam's Commentary on the Mishnah is accepted as accurate, the reference should be understood as limited to wine from which no benefit at all may be derived as distinct from wine which one may not drink but from which other forms of benefit may be derived. Wine subject to that stringent restriction is prohibited even in a mixture in which the taste is \"mere acid\" since quite obviously some benefit is derived from the wine despite its debased state.",
+ "Iggerot Mosheh offers another, but rather strained, interpretation of the published text of Rambam's comment that renders it inapplicable to the matter at hand. Citing a comment of Taz, Yoreh De'ah 98:1, regarding another foodstuff, Iggerot Mosheh offers the suggestion that Rambam's intent was to categorize wine as a member of the class of \"sharp\" substances, which are also not subject to nullification, rather than as a \"spice.\" If classified in that manner, argues Iggerot Mosheh, wine is nullified if mixed with a substance that is \"sharper\" that the wine. Whiskey is certainly such a substance.",
+ "Iggerot Mosheh dismisses the contention that Rema, Yoreh De'ah 114:6, prohibits beer that has been brewed with the residue of pressed grapes because the wine reabsorbed by the grapes is designed to \"flavor\" the beer. Pointing to the comments of Shakh, Yoreh De'ah 123:28, Iggerot Mosheh asserts that it is the grape dregs themselves, rather than the wine reabsorbed by the dregs, that serve as a leavening and brewing agent. Iggerot Mosheh develops the novel thesis that the dregs of forbidden wine are prohibited, even though the grapes themselves are entirely permissible, on the tentative grounds that the residue is treated as wine because, so long as it remains moist, it might be mixed with the wine itself and consumed as wine. Hence, asserts Iggerot Mosheh, although, as he maintains, adulterated wine can never be deemed a flavoring agent, Rema prohibits beer produced with grape residue because it is the prohibited dregs that are used as a flavoring agent.",
+ "Iggerot Mosheh's view regarding the nature of the prohibition of grape detritus is at variance with that of R. Shalom Mordecai Schwadron, Teshuvot Maharsham, III, no. 234, s.v. ve-hineh. Maharsham states that the \"pits\" of pressed grapes as not intrinsically forbidden but are prohibited solely because of the presence of wine reabsorbed in them. In support of that observation he cites the ruling of Shulḥan Arukh, Yoreh De'ah 123:16, to the effect that wine residue that adheres to the wall of the barrel is permissible after twelve months have elapsed from the time the barrel has been emptied. Maharsham understands that ruling to be predicated upon the consideration that the detritus is prohibited only because of the wine it has absorbed and, accordingly, since, as recorded by Shulḥan Arukh, any remaining moisture evaporates within a period of twelve months, there is no reason to prohibit the residue after that period of time has elapsed. It then follows that, according to Maharsham, beer brewed with the residue of pressed grapes is prohibited, even though the residue contains only a small quantity of wine, because wine is not nullified when it is used as a flavoring agent. Iggerot Mosheh would presumably counter that the detritus is permitted after twelve months have elapsed because, as Shulḥan Arukh notes, at that point it is \"mere earth.\" Iggerot Mosheh would presumably explain Shulḥan Arukh's reference to the evaporation of the absorbed wine as simply an explanation of why the detritus turn into \"mere earth.\"",
+ "Iggerot Mosheh also demonstrates that, as a matter of normative law, the principle of nullification by virtue of adulteration applies even with regard to products that are customarily mixed with other foodstuffs. It is evident from the ruling of Rema, Yoreh De'ah 114:6, and the comments of Taz, Yoreh De'ah 114:6, that this is true with regard to prohibited wine as well.",
+ "III. Taste Attributable to Dual Sources",
+ "Rabbi Weisz reports that one of his colleagues contended that the wine added to blended whiskey cannot be designed to flavor the whiskey for, were the taste of wine actually detectable in the whiskey, observant Jews would long have been aware of the problem and would have refrained from drinking such whiskey. Rabbi Weisz asserts that the principle of le-ta'ama avida, i.e., that nullification does not occur when the prohibited foodstuff is designed to impart taste, is not limited to situations in which the taste of the prohibited foodstuff is identifiable as that of the prohibited foodstuff. Rather, it also includes situations in which the forbidden foodstuff merely modifies and enhances the flavor of the mixture. Thus, the principle of nullification applies only when the taste of the forbidden foodstuff is entirely submerged with the result that the taste of the dominant ingredient or ingredients is no different from the taste of the same food product absent the admixture of the small quantity of the forbidden substance. The taste of wine per se may not be detectable in scotch whiskey but, contends Rabbi Weisz, the taste of scotch aged in wine casks is different from that of scotch not aged in wine casks. Since the flavor of scotch aged in wine casks is transformed and beneficially enhanced as a result of the process, the taste of the prohibited wine cannot be deemed to have been nullified.",
+ "Nevertheless, in sec. 16 of his responsum, Rabbi Weisz finds grounds to permit such whiskey precisely because the resultant \"taste\" attributable to the wine is not a wine flavor but an entirely new taste. His argument is technical and complex but warrants thoughtful consideration.",
+ "As demonstrated by Minḥat Yizḥak in secs. 11-12 of his responsum, Ra'avad, cited by Ran, Avodah Zarah 29b, agrees with the earlier cited view of Rashba to the effect that products that are customarily adulterated with forbidden foodstuffs are forbidden even if the forbidden substance is present only in a minute quantity. Ra'avad explains that the prohibition was enacted in order to prevent impermissible forms of nullification.",
+ "Rashba himself is understood by Maḥazit ha-Shekel, Oraḥ Hayyim 447:45, as advancing an entirely different rationale for this prohibition. The principle of nullification by virtue of adulteration does not apply to a davar ha-ma'amid, i.e., a forbidden substance that serves as a \"support\" for the food product to which it is added. Jelling and solidifying agents are of that category. Emulsifiers and enzymes such as rennet used in production of cheese may be the best commonplace examples of a davar ha-ma'amid. Maḥazit ha-Shekel understands Rashba as advancing the view that if a small quantity of a substance whose taste cannot be perceived in the resultant mixture is customarily added to a food product it must be because, although the ingredient is not itself perceivable, it must serve to modify the taste of the dominant ingredients. Such a substance, asserts Maḥazit ha-Shekel, was regarded by Rashba as a davar ha-ma'amid.",
+ "Adopting that rationale, Minḥat Yizḥak argues that a davar ha-ma'amid that is itself composed of two separate ingredients, one kosher and one forbidden by virtue of rabbinic edict, does not render the product in which it is employed non-kosher, provided that the mixture is of a quantity sufficient to nullify the non-kosher ingredient. In such cases the davar ha-ma'amid is itself a zeh va-zeh gorem, i.e., the effect of the ma'amid stems from dual sources, one permissible and one impermissible. The applicable rule is that a zeh va-zeh gorem in which the forbidden substance is rabbinically prohibited, as distinct from a substance prohibited by biblical law, is entirely permissible.",
+ "Since the wine in question is prohibited only by virtue of rabbinic edict and since the taste of the wine itself is not discernible by the palate, the taste that it does impart, argues Minḥat Yizḥak, must, according to Rashba, be forbidden only as a davar ha-ma'amid. However, the novel taste imparted to the whiskey is not the product of the wine alone; the taste that is generated, argues Minḥat Yizḥak, is the product of multiple ingredients, including the wood of the cask itself (which is often oak), no single one of which is itself discernible. Accordingly, concludes Minḥat Yizḥak, the resultant flavor has the status of a permissible zeh va-zeh gorem.",
+ "Minḥat Yizḥak's argument is less than compelling for a number of reasons. Maḥazit ha-Shekel's interpretation of Rashba is certainly debatable. Rashba's phraseology is far from unequivocal and Maḥazit ha-Shekel's explanation is not at all self-evident. It should also be noted that, as opposed to Maḥazit ha-Shekel, Noda bi-Yehudah regards the views of Ra'avad and Rashba as identical. Moreover, the authorities who disagree with Rashba's position, or with his explanation of that position, may well do so precisely because they adopt the view that the taste of a forbidden substance retains its prohibited status unless it is completely eradicated and entirely undetectable with the result that a modified or even novel taste remains intrinsically forbidden.",
+ "IV. Nullification on Behalf of Jewish Purchasers",
+ "In his initial treatment of this topic published in Ha-Pardes, Heshvan 5709, Rabbi Teitz argued that, even if the wine in blended whiskey is present in quantities sufficiently minute to be nullified by virtue of adulteration, it is nevertheless forbidden for a Jew to purchase the adulterated product. Halakhah forbids the intentional adulteration of a forbidden substance in order to render it permissible (ein mevatlin issur le-khateḥilah). Moreover, although the mixture is regarded as kosher once it is adulterated, nevertheless, the person who intentionally adulterates a forbidden substance in order to nullify it may not consume the mixture post factum. Similarly, if an individual intentionally adulterates a forbidden substance for the benefit of another person, that person is also forbidden to consume the resultant mixture. R. Akiva Eger, in a gloss to Yoreh De'ah 99:5, cites Teshuvot Rivash, no. 498, who rules that a person who engages in such a practice on a commercial basis does so on behalf of all potential customers. Accordingly, even though the potential customers are both undetermined and anonymous, they are nevertheless the intended beneficiaries and hence are prohibited from eating the resultant mixture.",
+ "To be sure, as evidenced in a different context by the discussion of the Gemara, Eiruvin 40a, if the adulteration were to be undertaken for the benefit of non-Jewish customers, Jews would not be forbidden to benefit from such nullification. Since the vast majority of consumers are non-Jews, it might be contended that the distillers blend the whiskey for the intended benefit of non-Jews and hence the consideration voiced by R. Akiva Eger is not applicable. Rabbi Teitz counters that argument by pointing to the comment of Magen Avraham, Oraḥ Hayyim 515:22, regarding food that has been brought from beyond the permitted walking distance (ḥuz le-teḥum) on Yom Tov. Such foodstuffs are forbidden to the person on whose behalf they have been transported, even if they have been transported by a non-Jew, but are nevertheless permitted to others. Thus, if such foodstuffs are transported for the benefit of non-Jews they may be consumed by Jews. However, if the food is transported primarily for sale to non-Jewish customers but additional quantities of the same foods are simultaneously transported because of a potential Jewish clientele, the transportation is deemed to have been carried out for the benefit of Jews and, accordingly, Jewish consumers are forbidden to benefit therefrom.",
+ "Rabbi Teitz notes that the number of Jewish consumers, although relatively modest in terms of the total market, is nevertheless numerically sufficient to assure that additional quantities of whiskey must be produced in order to satisfy their needs. Moreover, argues Rabbi Teitz, the ubiquity of liquor advertisements inserted in Anglo-Jewish newspapers indicates that distillers are well aware of the existence of a Jewish market and fully intend to blend whiskey on behalf of their Jewish clientele.",
+ "However, the basic view adopted by R. Akiva Eger is disputed by numerous authorities including Taz, Yoreh De'ah 99:10. Following R. Shlomoh Luria, Yam shel Shlomoh, Hullin 7:59, Taz declared that the rule providing that an adulterated product may not be consumed by a person for whose benefit the forbidden foodstuff was adulterated is limited to situations in which the individual had prior knowledge that the adulteration was to be carried out on his behalf. According to Taz, if follows that, when such products are acquired on the open market, they are permitted to a Jewish purchaser. In light of the controversy concerning this point, Rabbi Teitz did not take a definitive stand on the basis of that consideration.",
+ "Minḥat Yizḥak, in his previously cited responsum, sec. 20, cites another consideration in vitiation of the problem posed by intentional nullification for the benefit of Jewish consumers. Teshuvot Maharsham, III, no. 234, s.v. ve-nish'ar, apparently assumes that the prohibition against intentional adulteration of a forbidden foodstuff is designed to prevent transgression that might arise if the forbidden item is insufficiently adulterated. Consequently, Maharsham permits intentional nullification of a small quantity of a forbidden substance in situations in which a higher concentration would spoil the food to which it is added. If so, argues Minḥat Yizḥak, it would be permissible for a Jew to intentionally add a small quantity of wine to whiskey. Minḥat Yizḥak reasons that, although a small quantity of wine enhances the whiskey, a larger quantity would ruin its taste. Thus, there are no grounds to fear that permitting adulteration through the addition of a small quantity of wine would lead distributors to add a quantity sufficiently large to render the whiskey impermissible. Maharsham's position, however, is accepted by other authorities.",
+ "Iggerot Mosheh, Yoreh De'ah, I, no. 63, argues that the ban against benefiting from intended nullification of a forbidden substance is not applicable because of four considerations:",
+ "1. Provisions applicable with regard to items transported on Yom Tov are not germane with regard to nullification by means of adulteration. The ban against benefiting from nullification is designed as a penalty for violation of the prohibition against intentional adulteration. There is, however, no prohibition against adulterating a forbidden foodstuff on behalf of a non-Jew. Hence a Jewish purchaser can legitimately claim that the food product he has bought came from the major portion of the product offered for sale, i.e., from the quantity designed for sale to non-Jews and hence not subject to the ban against adulteration. However, since non-Jews are permitted to transport merchandise on Yom Tov with impunity, the ban against benefiting from foodstuff transported from beyond the permitted distance on Yom Tov cannot be in the nature of a penalty. Rather, it is rooted in a prohibition against deriving benefit from Yom Tov activity. Hence, concludes Iggerot Mosheh, since a single Yom Tov act is involved, the prohibition is triggered if any portion of the produce is transported on behalf of a Jew.",
+ "Iggerot Mosheh's argument may, however, represent a distinction without a difference. It may be correct to say that in transporting items from beyond the permitted area the non-Jew commits no impropriety, and hence there is no basis to penalize the act, but that a Jew may nevertheless be forbidden to derive benefit from an act performed on Yom Tov on his behalf. However, since the items transported are fungible, it is entirely possible that, when items are transported primarily for non-Jews but an additional quantity is added for the benefit of a Jew, the items ultimately delivered to the Jew are not those added on his behalf and hence, in actuality, the Jew has not benefited from a prohibited act performed on Yom Tov on his behalf. If so, the fact that a Jew dare not benefit from any of the items transported when even some of those items have been added for the benefit of Jews may well reflect the notion that, in such circumstances, the entire activity is regarded as having been undertaken on behalf of a Jew. The same principle would then be applicable to adulteration of an additional quantity of a forbidden foodstuff by a purveyor in order to be able to make additional products available to Jewish customers.",
+ "Moreover, it is quite possible that the ban against deriving benefit from items transported on Yom Tov from outside a permitted area does not reflect a prohibition against deriving benefit from a task performed on Yom Tov but, as with regard to the prohibition against benefiting from nullification of means of adulteration, it is designed to discourage Jews from directly requesting that the act be performed on their behalf.",
+ "2. Taz, Yoreh De'ah 99:10, followed by numerous other authorities, maintains that there is no prohibition against benefiting from adulterated substances in circumstances in which the intended beneficiary is unaware of the fact that the substance is to be adulterated on his behalf. That position is based on the consideration that the prohibition devolving upon the beneficiary of the prohibited act is designed to discourage him from requesting another person to adulterate a forbidden substance on his behalf. According to these authorities, that consideration does not apply to situations in which the process is performed without the knowledge of the benefited person.",
+ "3. Tosafot, Pesaḥim 30a, maintain that it is entirely permissible to nullify substances forbidden by a rabbinic edict that is unrelated to a biblical prohibition. Wine that has not been handled by an idolater is prohibited not because of fear that it has been used for an idolatrous libation—as evidenced by the fact that, although it is not permitted to drink such wine, other forms of benefit may be derived therefrom—but because social intimacy promoted by sharing wine may lead to intermarriage. The prohibition against drinking such wine is entirely rabbinic in origin and hence, according to Tosafot, it is permissible to nullify such wine by adulterating it with other substances.",
+ "4. Although this opinion is not normative, Rambam, Hilkhot Ma'akhalot Assurot 15:26, maintains that it is permitted to nullify all rabbinically prohibited substances.",
+ "Taken collectively, asserts Iggerot Mosheh, these considerations serve as ample basis to vitiate a prohibition against the purchase of blended whiskey containing wine that has been nullified by adulteration.",
+ "V. Reasons for Stringency",
+ "Nevertheless, despite this permissive stance, in Iggerot Mosheh, Yoreh De'ah, I, no. 61, Rabbi Feinstein advances four reasons why a pious person (ba'al nefesh) should abstain from blended whiskey and in Iggerot Mosheh, Yoreh De'ah, I, no. 63, he adds yet a fifth reason:",
+ "1. Although Shulḥan Arukh disagrees, many authorities maintain that not only is it forbidden to drink wine that has been handled by a non-Jew but that no benefit whatsoever may be derived from the wine. When no benefit may be derived from prohibited substances, benefit may not be derived even from their \"ashes\" or residue.",
+ "2. Although Shulḥan Arukh disagrees, many authorities maintain that wine, even when mixed with water, is nullified only when adulterated in a quantity sixty times as great as the prohibited wine rather than in a quantity six times as great.",
+ "3. It is possible that, contrary to the interpretation discussed earlier, Nekudat ha-Kesef and Rema maintain that, when mixed with beverages other than water, nullification of wine requires a quantity of liquid sixty times as great as the wine rather than a quantity only six times as great.",
+ "4. Although, as previously indicated, the position is problematic, it is the view of Matteh Yonatan (and, as noted earlier, presumably of Maharsham as well) that when wine is mixed with another food or beverage for the purpose of enhancing taste it does not become nullified.",
+ "5. Although, as noted earlier, a number of other authorities disagree, Teshuvot ha-Rashba, III, no. 214 followed by Shulḥan Arukh, Yoreh De'ah 134:13, maintains that food products which non-Jews routinely adulterate with non-kosher substances are always prohibited even if the taste or flavor of the non-kosher substance cannot be detected because it is overpowered by a much greater quantity of the kosher substance.",
+ "VI. A Final Note",
+ "The permissive rulings of both R. Moshe Feinstein and R. Yitzchak Weisz provide ample authority upon which those who wish to enjoy blended whiskey and fine scotch may rely. It should be remembered, however, that Rabbi Feinstein himself advised that a \"ba'al nefesh\" should abstain from doing so and that such was generally his own practice.",
+ "A review of the arguments pro and con certainly serves to establish that the ultimate decision is based upon considerations regarding which intelligent and erudite scholars may differ. Such disagreements are the product of the exercise of intellectual judgment well within the parameters of legitimate halakhic dialectic. It is precisely for that reason that Rabbi Feinstein advised a ba'al nefesh to be stringent in his personal practice. In doing so Rabbi Feinstein was simply invoking the principle recorded by the Gemara, Hullin 44b, and codified by Rema, Yoreh De'ah 116:7, regarding \"basar she-horeh bo ḥakham—meat that requires the decision of a scholar,\" i.e., food whose status is cogently questioned but is nevertheless ruled to be kosher by a competent decisor. The Gemara reports that the prophet Ezekiel abjured such food as an act of piety. The stringency arises because the decision involves a judgment call (shikul ha-da'at) and is accordingly subject to error. It is that consideration that has led to the designation known as \"glatt\" kosher. Literally, the reference is to meat from an animal whose lungs are \"smooth,\" i.e., whose lungs have no adhesion requiring a \"decision of a scholar\" to the effect that the adhesion is of a type that does not render the animal non-kosher. As used in common parlance, the connotation of the term \"glatt\" has come to be that the permissibility of the food so described is not subject to doubt or disagreement.",
+ "There is an association that styles itself the \"Glatt Cigar Society.\" The members of that group meet periodically to enjoy succulent steak, expensive cigars and fine scotch whiskey. Upon reading a news report indicating that I was not prepared to grant an unqualified endorsement to all scotch whiskey, a gentleman associated with that group was kind enough to forward to me copies of relevant material in the rabbinic literature that he thought might have escaped my attention. Apart from the cognitive dissonance that arises from association of the term \"glatt\" with institutionalized hedonism, it may be cogently argued that, in light of health hazards posed by smoking, the term \"glatt cigar\" is an oxymoron. In any event, if scotch aged in sherry casks is indeed served at gatherings of the Glatt Cigar Society, the name by which that group is known is anomalous. The members would be well advised either to switch brands or to change the name of the society."
+ ],
+ "Chapter IX Kashrut": [
+ "R. Berakhiah said in the name of R. Isaac: The Holy One, blessed be He, will make a banquet for His servants, the righteous, and whoever has not eaten carrion in this world will witness [the banquet] in the World to Come.",
+ "VA-YIKRA RABBAH 13:3",
+ "Kashrut Certification",
+ "In the Iyar 5754 issue of Ha-Pardes the editor has reprinted a letter authored by R. Moshe Feinstein many years ago. The letter, as published in Ha-Pardes, is dated 9 Elul 5733. The identical letter appears in Iggerot Mosheh, Hoshen Mishpat, II, no. 4, sec. 1, bearing the date Kislev 5739. The communication was addressed to the administrators of a communal kashrut supervision organization. The letter was written at the behest of several rabbis who, for a period of time, had supervised and granted a private hekhsher, or certificate of kashrut, to a slaughterhouse. The rabbis approached Rabbi Feinstein with a complaint in which they asserted that the supervisory agency in question refused to allow establishments under its jurisdiction to make use of meat originating in the slaughterhouse supervised by the complainants. Those rabbis alleged that such refusal was nothing more than a boycott designed to put economic pressure upon the proprietors of the slaughterhouse to transfer kashrut supervision from the rabbis with whom they had a long-standing arrangement to the supervisory agency itself.",
+ "Such a motive is unworthy of any individual and most certainly of a kashrut agency and hence, were that indeed to have been the reason for not accepting the certification of the supervising rabbis, such motivation would, in itself, have constituted sufficient grounds for censure. More than a century ago, R. Moshe Sofer, Teshuvot Hatam Sofer, Hoshen Mishpat, no. 118, expressed astonishment that \"scholars, a rabbi and a dayyan would join in committing an injustice and transgression\" of such a nature. The incident discussed by Hatam Sofer involved certification of sugar produced by a non-Jew as kosher for use on Pesaḥ. The certification had been granted by two dayyanim who are described as having been impoverished. A certain rabbi allegedly attempted to persuade the non-Jew to dismiss one of the dayyanim and to engage him in place of the dayyan. The non-Jew, however, demurred. Thereupon the rabbi enlisted the assistance of the second dayyan and together they prevailed upon the gentile. Hatam Sofer decries such conduct as unworthy and, despite minor equivocation in his initial comments, declares such conduct to be a violation of the prohibition against hasagat gevul, i.e., unfair competition.",
+ "Rabbi Feinstein, in a brief and peremptory statement, expresses disapproval regarding the matter brought to his attention for a medley of reasons: 1) Infringement upon another person's means of earning a livelihood constitutes a violation of the prohibition against hasagat gevul. 2) Kashrut supervision constitutes the exercise of \"authority\" (serarah) and hence retaining the services of a kashrut supervisor constitutes an appointment to a position of authority rather than the engagement of an employee. The implication of adducing that consideration is that a person so engaged cannot be removed other than for cause. 3) Refusal to accept the certification of the supervising rabbis is a source of great embarrassment to them and constitutes defamation of character. Rabbi Feinstein advises that, if there are indeed allegations of substantive irregularities, the matter be presented formally to a Bet Din for adjudication.",
+ "The statement, which Rabbi Feinstein signed in his capacity as president of the Union of Orthodox Rabbis of the United States and Canada, may well be construed as a policy statement of that organization. If it was intended as a definitive halakhic ruling, it may well have been compelled by the particular facts of the case addressed but can hardly be regarded as universal in application.",
+ "Any attempt to entice customers or clients already serviced by another person presents a serious question of hasagat gevul. Any attempt to disparage another person's performance in the rendering of services, whether by explicit statement or by innuendo, is indeed a form of defamation. However, refusal to rubber-stamp the kashrut endorsement of another rabbi or supervising agency need not necessarily entail either infraction. Similarly, a producer or retailer may seek new kashrut certification without necessarily being in violation of any provision of Jewish law.",
+ "Certification of the kashrut of any product is, in a technical halakhic sense, testimony with regard to the product as a permitted foodstuff. Such testimony cannot be compelled. Thus no individual or rabbi can ever be compelled to attest to the kashrut of any product. Certainly, no person or agency is permitted to compromise his or its integrity by actually certifying a product as kosher if that person or agency has any suspicion of irregularity. In judicial proceedings the Bet Din has no choice but to rule upon the testimony presented, provided that the witnesses are halakhically credible and the testimony is unimpeached. A judge who nevertheless harbors a suspicion of perjury cannot simply exclude or disregard the testimony. Nor is he permitted to act upon testimony that he regards with suspicion. Accordingly, Rambam, Hilkhot Sanhedrin 24:3, rules that a judge who finds himself in such a position has no choice but to recuse himself. Since the judge need not announce the reason for his recusal, no stigmatization of the witnesses accrues from his action in doing so. The same is assuredly the case with regard to extra-judicial matters involving a pronouncement of permissibility.",
+ "Neither a rabbi nor a supervisory agency is under an obligation to grant kashrut endorsements to all qualified applicants. Hence the rabbi or supervisory agency is fully entitled to demand stringencies on behalf of those who rely upon that endorsement. Those stringencies may represent matters of piety practiced by a particular clientele rather than matters of normative religious law. Moreover, a person called upon to accept the certification of a product as kosher may have no reason to suspect that the product falls short of even the most rigorous standards but may feel that further safeguards and controls are necessary in order to protect against problems that may arise over the course of time. Hence, refusal to extend full faith and credit to the certificate of another rabbi or agency does not, ipso facto, reflect negatively upon that endorsement.",
+ "There are also, to be sure, situations in which a person may entertain suspicion or doubt without being able to articulate the precise reason for his concern and certainly without being able to demonstrate impropriety to the satisfaction of a Bet Din. In comparable judicial situations, a member of a Bet Din must recuse himself rather than vote for either conviction or acquittal, liability or exoneration; similarly, in matters of kashrut, a person experiencing such ambivalence must decline to compromise himself by endorsing, or appearing to endorse, kashrut certification regarding which he has less than full faith.",
+ "Furthermore, a policy of \"vertical\" supervision is entirely reasonable. Certification of a processed food product, catering facility or commercial establishment involves not only attestation that nothing is amiss at the point of supervision but that all products and ingredients utilized in the food purveyed as kosher are indeed acceptable. A supervisory authority may cogently establish a policy of granting certification solely on the basis of its own investigation and determination of reliability of all ingredients and products. That, in turn, is tantamount to requiring that only products under its own supervision be used. It may also, with valid reason, restrict its own acceptance of certification of ingredients to products bearing the imprimatur of a communal organization. Presumably, such certification is not clouded by pecuniary motivation since no individual's livelihood or level of compensation is directly affected by the bestowal or withdrawal of any particular kashrut certification. Assuredly, apart from its undeniable intrinsic merit, absence of self-interest bolsters public confidence and hence a communal kashrut agency whose goal is the broadest possible acceptance will correctly seek to establish policies designed to achieve such acceptance.",
+ "For similar reasons a producer or purveyor of food products is completely at liberty, upon his own initiative, to seek the endorsement of whatever agency or individual he may desire. An enterprising businessman will seek the widest possible market for his product. A purveyor of kosher food will seek the testimonial of an agency or rabbinic figure likely to garner the largest possible number of customers. Accordingly, substitution of certification is not a reflection upon the probity of the individual or agency whose certification has been supplanted but simply reflects an awareness that the newly acquired imprimatur will lead to wider recognition and acceptance and hence will enhance sales. If, for the reasons indicated, the kashrut agency or supervisor is not in violation of the prohibition against hasagat gevul an entrepreneur availing himself of such supervision cannot be deemed guilty of abetting a transgressor.",
+ "Parenthetically, it should be noted that Rabbi Feinstein's depiction of kashrut supervision as a form of \"authority,\" insofar as our society is concerned, reflects an ideal rather than the reality. In the autonomous Jewish kehillah of yesteryear a communal rabbi did indeed enjoy the prerogative of declaring a foodstuff to be non-kosher and of branding a purveyor as unreliable. His edict then became binding in his jurisdiction. Kashrut supervision in the United States involves no such power. A firm or individual seeking rabbinic endorsement of any given product does not undertake that the product will remain kosher forevermore. Quite to the contrary, the manufacturer or purveyor is at perfect liberty to surrender the kashrut endorsement and, at least to the extent permitted by Jewish law, to market the product to consumers for whom kashrut is not a concern. The supervising rabbi is simply not engaged to compel the manufacturer or proprietor to adhere to required standards of kashrut in the future, much less so to impose sanctions for nonfeasance. His function is entirely affirmative, i.e., to attest to the reliability of the product so long as everything is in order. To be sure, he has the halakhic right, and indeed the obligation, to warn against use of the product if he becomes aware of the fact that an ongoing claim of kashrut is false. He does so, however, by virtue of his obligation as an individual, not by virtue of his office or of any authority that has been conferred upon him. Since the private kashrut supervisor's position is not a position of \"authority,\" he is not endowed with the right to tenure enjoyed by a communal official.",
+ "Is the Giraffe a Kosher Animal?",
+ "The status of the giraffe has been the subject of a number of discussions in rabbinic literature over the course of the past one hundred and fifty years. The earliest analysis of the question was published by H. Hanak in a periodical edited by R. Mendel Stern called Kokhavei Yizḥak, no. 16 (Vienna, 5612), pp. 41-43. A later discussion by R. Shlomoh Zevi Schuck was published in his Teshuvot Rashban, Even ha-Ezer (Satmar, 5665), no. 64. The issue was raised anew in an inquiry by R. Yeshayah Aryeh Dworkes, Ha-Ma'or, Tishri 5721, and responded to by R. Zevi Hirsch Cohen, She'elot u-Teshuvot ha-Ma'or ve-Zikaron ba-Sefer, I (New York, 5727), pp. 247-250. The matter has now been reexamined by R. Abraham Hamami in a contribution to Teḥumin, vol. 20 (5760).",
+ "The earliest rabbinic reference to a giraffe occurs in R. Sa'adia Ga'on's commentary on Deuteronomy 14:5. Scripture declares, \"These are the animals you may eat\" and proceeds to enumerate a list of permitted species. Among those animals is the \"zemer\" which is rendered in standard English translations as \"mountain-sheep.\" R. Sa'adia Ga'on, perhaps following the Septuagint, identifies the zemer as the animal known in Arabic as al-zerafah, i.e., the giraffe. That translation is accepted by R. David ibn Kimḥi (Redak) in his Sefer ha-Shorashim in the entry for the term \"zemer,\" by R. Estori ha-Farḥi, Kaftor va-Feraḥ, chap. 58, and by R. Shimon ben Ẓemaḥ Duran (Rashbaz), Yavin Shemu'ah, Hilkhot Treifot, p. 5b. Rashbaz further identifies al-zerafah as an animal with \"a long neck… so that when [the giraffe] is within the wall it extends [its neck] outside of the wall.\" Rabbi Hamami adduces an impressive list of sources, albeit mostly obscure in nature, that either identify the giraffe as the zemer of Scripture or otherwise refer to the giraffe as a kosher animal. Indeed, the giraffe, since it has split hoofs and chews its cud, appears to be readily identified as a kosher animal.",
+ "The author of the article published in Kokhavei Yizḥak similarly regards the giraffe as a kosher species but, rather than identifying it with the zemer, he somewhat fancifully identifies it as the taḥash, the animal whose skin was used in the construction of the tabernacle as described in Exodus 25:5. The Gemara, Shabbat 28b, depicts the taḥash as a species that existed \"in the days of Moses,\" that was made available to Moses for the specific purpose of use in construction of the tabernacle and that was subsequently concealed. Identification of the taḥash with the giraffe is based upon Targum Onkelos' translation of taḥash as \"sasgavna,\" i.e., a creature that \"delights in its colors,\" and the Arabic meaning of the term zerafah, i.e., \"beautiful,\" as well as the putative derivation of the Hebrew \"taḥash\" from the verb \"ḥashoh\" meaning to be silent, reflecting the erroneous belief that the giraffe is mute.",
+ "R. Shlomoh Schuck suggests that the taḥash was a distinct kosher species but, as a result of crossbreeding with some other species, the giraffe appeared. Oddly, Rabbi Schuck believes that some giraffes are ruminants with split hoofs, some have only incompletely split hoofs, some resemble cows in part and camels in part, while others resemble, deer. He also maintains that scientists regard the giraffe as a species of camel. The camel, of course, chews its cud but does not possess cloven hoofs. He explains the existence of giraffes having such diverse physical characteristics on the basis of his contention that the giraffe is the product of crossbreeding.",
+ "Rabbi Schuck bolsters this thesis by pointing to the enumeration in Genesis 32:15-16 of the various species of animals sent by Jacob as a gift to his brother Esau. Scripture first mentions goats and sheep, then camels, followed by cattle and, finally, donkeys. The order is puzzling in that the enumeration of clean species is interrupted by mention of camels, an unclean species, while the other unclean species, viz., donkeys, is mentioned last. Rabbi Schuck suggests that the \"camel\" to which reference is made is none other than the taḥash. He contends that at a later period the taḥash was bred with a non-kosher species, i.e., a non-kosher camel, and that the giraffe was the product of that union. Rabbi Schuck seems to believe that the common species of the present-day giraffe, produced as a result of crossbreeding, possesses hoofs that are incompletely split and hence is obviously non-kosher, but that the original giraffe was a ruminant with completely split hoofs. In any event, if Rabbi Schuck were to be correct in describing its origin, the present-day giraffe, since it would be descended from a non-kosher ancestor, could not be regarded as a kosher species.",
+ "In developing their theses these two authors fail to take note of a highly significant halakhic presumption. The Gemara, Bekhorot 7a, declares that members of kosher and non-kosher species cannot crossbreed. Thus, if a questionably kosher animal successfully mates with a member of a kosher species and produces offspring, the animal in question must be deemed to be a member of a kosher species. Accordingly, the giraffe could not be the hybridized progeny of a kosher species and a non-kosher camel. It is rather odd that these writers do not address this issue. Far-fetched as it may seem, they may have postulated that the Gemara is reporting the empirical realia of its time as well as of the present-day world, but that in antiquity such crossbreeding may have occurred.",
+ "In the modern period, a related issue was raised in 1950 by the Va'ad ha-Rabbanim ha-Haredim of Paris, with regard to a different species. The Parisian rabbis sought to establish kosher slaughter in Madagascar in order to export meat to Israel. The breed of cattle slaughtered in Madagascar originated in India and is referred to as the \"Indian ox.\" The animal is identified as the zebu, a type of humped cow that originally came from India but is now found in many other countries. The animal differs in physical appearance from European cattle. In addition to being somewhat bigger and having somewhat larger horns than other cattle, its mane has a distinctive appearance with hair that stands upright in the area of the neck. The rabbinical association sought the guidance of the then Chief Rabbi of Israel, Rabbi Isaac ha-Levi Herzog, with regard to whether or not the animal, which has split hoofs and is a ruminant, might be considered to be kosher. Rabbi Herzog's response has now been published in his Pesakim u-Ketavim, vol. IV (Jerusalem, 5750), no. 20. Unfortunately, the concluding section of the responsum is missing. The issue was also addressed at the time by R. Meshullam Roth, Teshuvot Kol Mevaser, I, no. 9.",
+ "The concern of the Parisian rabbis was based upon the opinion of Teshuvot Bet Ya'akov, no. 41, cited by Pitḥei Teshuvah, Yoreh De'ah 80:1. Shulḥan Arukh, Yoreh De'ah 80:1, records a number of variations of particular characteristics of animal horns that can be relied upon to distinguish between the biblical categories of behemah (animal) and ḥayyah (generally translated as \"wild beast\"). A portion of the blood of a ḥayyah must be covered with earth after slaughter and its ḥelev (the fat of certain parts of the animal that in a sacrificial behemah was burned upon the altar) is permitted as food, whereas a behemah does not require covering of its blood but its ḥelev is prohibited.",
+ "Bet Ya'akov goes beyond the position of the Shulḥan Arukh in asserting that, in addition to having split hoofs and chewing its cud, a ḥayyah, in order to be considered kosher, must have the distinctive horn characteristics of a kosher species. The Va'ad ha-Rabbanim of Paris was concerned that the \"Indian ox\" may be a ḥayyah rather than a behemah (as are other cattle) and hence, according to Bet Ya'akov, could be considered kosher only if it possesses the idiosyncratic characteristics of a kosher ḥayyah. Both Rabbi Roth and Rabbi Herzog dismiss the concern voiced by the Va'ad ha-Rabbanim by advancing halakhic evidence contradicting the position of Bet Ya'akov and also by citing earlier authorities, including the compiler of Pitḥei Teshuvah, who rejected Bet Ya'akov's novel view.",
+ "The consideration raised with regard to the \"Indian ox\" is also germane with regard to the giraffe, i.e., according to Bet Ya'akov, if the giraffe is a ḥayyah rather than a behemah it can be accepted as a kosher animal only if it possesses the idiosyncratic horns of a kosher ḥayyah.",
+ "However, a second and even more crucial issue was raised by the Va'ad ha-Rabbanim that is directly relevant to the case of the giraffe as well. The rabbis of Paris reported that an unnamed person had objected to the slaughter of the zebu because we are not in possession of a tradition identifying it as a kosher animal. In support of his objection that scholar drew attention to a statement of Hokhmat Adam 36:1 who declares that not only birds but also animals cannot be eaten on the basis of reliance upon the codified criteria of kosher species; rather, they may be consumed only if there exists a received tradition regarding the permissible status of the animal in question.",
+ "This significant issue is not addressed either in Kol Mevaser or in the published version of Rabbi Herzog's responsum. However, Hazon Ish, Iggerot Hazon Ish, I, no. 99 and Hazon Ish, Yoreh De'ah 11:4, reprinted in Pesakim u-Ketavim, IV, no. 21, unequivocally agrees that the \"Indian ox\" cannot be permitted for precisely that reason. That view was forcefully reiterated by Hazon Ish in a subsequent letter published in Iggerot Hazon Ish, II, no. 83 and Hazon Ish, Yoreh De'ah, 11:5 and in yet a third letter published in Iggerot Hazon Ish, III, no. 113, reprinted in Pesakim u-Ketavim, IV, no. 22. However, as Hazon Ish himself notes, his ruling is predicated upon the assumption that the physical appearance of the \"Indian ox\" is sufficiently different from that of cattle for it to be regarded as a separate species for purposes of Halakhah.",
+ "The rule requiring a received tradition with regard to identification of a species as kosher is recorded by Rema, Yoreh De'ah 82:3, with regard to birds. The rationale underlying the rule with regard to birds is readily understandable. Leviticus 11:13-14 and Deuteronomy 14:12-18 identify a series of non-kosher avian species and declare all other birds to be permissible. Although each of these species is named in Scripture, we are not able to identify all of the enumerated species with certainty. Undoubtedly, many of those species are indigenous to particular locales and hence would not be recognized by persons living in other areas. Moreover, the names themselves, as given in the Pentateuch, are unfamiliar to us and we have no authoritative translation into languages with which we are familiar. Nevertheless, as recorded by Shulḥan Arukh, Yoreh De'ah 82:2, the Sages enumerated a number of physical characteristics that are manifested only by kosher species. However, the presence of those characteristics is dispositive only if, in addition, it is known that the bird is not \"dores,\" i.e., it does not seize and kill its prey before consuming its flesh. Shulḥan Arukh, Yoreh De'ah 82:3, then proceeds to list additional criteria that establish that the bird is not dores. Rema disagrees and rules that those characteristics cannot be relied upon to establish with certainly that the bird is not dores and hence Rema rules that, unless there is a received tradition with regard to the permissibility of the particular species, it may not be eaten. The concern is quite simple. It is obvious that if a bird is dores it is ipso facto known to be non-kosher. However, failure to observe the bird performing such an act does not conclusively establish that it never does so. Failure to observe an event does not establish that the event has not occurred or that it will not occur in the future. Accordingly, only a tradition going back century after century to the time when the identity of the enumerated non-kosher birds was known with certainty can establish that the species in question, since it was eaten at that time, was known not to have been one of the forbidden species.",
+ "Shulḥan Arukh, Yoreh De'ah 80:1, records the rule that, unlike with regard to a behemah, the ḥelev of a ḥayyah may be eaten and then proceeds to list the physical characteristics that serve to distinguish a ḥayyah from a behemah. Shakh, Yoreh De'ah 80:2, offers a terse comment: \"Since, at present, we know only what we have received by way of tradition [as is the case]… with regard to the characteristics of birds, I have abbreviated [my commentary].\" Pri Megadim, Siftei Da'at 80:1, observes that since the criteria of kosher species, i.e., split hoofs and chewing of the cud, are explicitly spelled out in Scripture there is no need for a tradition with regard to the kashrut of any particular animal species. Hence, he understands Shakh's comment as limited to the acceptance of a particular species as a ḥayyah rather than as a behemah. According to Pri Megadim's understanding of Shakh, Shakh declares that in the absence of a tradition, we cannot accept a species as a ḥayyah on the basis of the enumerated physical characteristics in order to permit the ḥelev of a particular species nor can we rely upon the absence of those characteristics in order to exempt the animal from covering a portion of its blood with earth following slaughter. Pri Megadim's position is endorsed by Kaf ha-Hayyim, Yoreh De'ah 80:5 and by Darkei Teshuvah 80:3.",
+ "However, Hokhmat Adam 36:1, Arukh ha-Shulḥan, Yoreh De'ah 80:10, and Hazon Ish, as well as Erekh ha-Shulḥan, Yoreh De'ah 80:10 and 82:29, understand Shakh as declaring that all animals are similar to birds in that no species may be accepted as kosher in the absence of a tradition confirming its status. Hazon Ish professes that \"it is not incumbent upon us to seek reasons\" for this stringency but that it probably arose in order to prevent error with regard to identification of an unfamiliar species as a ḥayyah or as a behemah and consequent inadvertent transgression with regard to ḥelev or covering the blood. Hazon Ish also asserts that it serves to prevent transgression with regard to the prohibition of treifot that is attendant upon certain anatomical anomalies. Those anomalies, he claims, particularly with regard to certain structures of the lung, are difficult to recognize in unfamiliar species. It may also be suggested that the consideration reflected in this practice is a fear that an unknown species may, in reality, be the product of genetic mutation of a progenitor that itself was a member of a non-kosher species. Progeny of non-kosher animals are non-kosher even if such progeny manifest all the indicia of kosher species.",
+ "In any event it is clear that, since we lack a tradition with regard to the identity of the present-day giraffe, consumption of its meat, although permitted by Pri Megadim and those who accept his interpretation of Shakh, would be forbidden by Hokhmat Adam, Arukh ha-Shulḥan and Hazon Ish, as well as by Erekh ha-Shulhan.",
+ "The Zebu Problem",
+ "The issues surrounding recognition of the zebu as a kosher animal were reviewed in the immediately preceding section in conjunction with discussions of the kashrut of the giraffe. As noted, the controversy dates to the late 1950s when an opportunity arose to import zebu to Israel from Madagascar. The then Chief Rabbi of Israel, Rabbi Isaac ha-Levi Herzog, ruled that the zebu was a kosher breed of cattle and was acceptable for kosher slaughter. That view was vigorously contested by Rabbi Abraham I. Karelitz, renowned as Hazon Ish. Assuming that the zebu differed markedly in its physical characteristics from other bovine species, Hazon Ish contended that no species can be accepted as kosher in the absence of a received tradition regarding its kashrut. In deference to Hazon Ish, the Israeli Chief Rabbinate declined to sanction the Madagascar source of supply and for decades nothing further was heard with regard to the matter.",
+ "That controversy erupted again shortly before Purim 5764 with a report that meat imported by Israel from South America is actually the meat either of the zebu itself or of hybrid cattle resulting from the crossbreeding of the zebu with other species. It has been alleged that virtually all of the Israeli kashrut authorities, including those of the glatt kosher market, were slaughtering such animals. That contention met with a wide range of reactions. Some kashrut authorities vehemently denied the charges and, in one case, published a document issued by a meat-processing company certifying that that particular company deals only in Hereford and Angus cattle. Others responded with a candid acknowledgement that they did indeed slaughter zebu and had been doing so for a considerable period of time. They contended either that they rely upon the opinion of the many authorities who disagree with Hazon Ish or that the zebu they import is not the same species banned by Hazon Ish. Indeed, one animal physiologist, Dr. Lawrence Shore, a member of the faculty of the Weizmann Institute of Science, has claimed that the animal of which Hazon Ish spoke was not the zebu but the bison. One writer has claimed that the \"zebu\" and the South American \"cebu,\" the Spanish term for zebu, are, in actuality, the names of different species.",
+ "In the wake of those conflicting reports, Israel's preeminent halakhic decisor, Rabbi Joseph Shalom Eliashiv, convened an ad hoc committee and charged its members with investigating the factual basis of the allegations. In the interim, based upon a variety of considerations, he ruled that meat already on the market might be consumed but that no future slaughter of animals from the herds in question be undertaken pending clarification of the matter.",
+ "The primary anatomical distinction of the zebu is the presence of a hump-like protrusion behind the head on its shoulders. In fact the term \"zebu\" connotes humped cattle. The origin of the zebu as a distinct species is traced to India. It was introduced into Brazil at a rather early date and resulted in the development of an Indo-Brazilian species. The animal is hardier than other breeds of cattle and, unlike some breeds, thrives in warm climates. The Brahman, perhaps world wide the most popular breed of cattle, is one of the major zebu breeds. Brahman have loose, saggy skin with sweat glands that enable them to sweat freely through the pores of the skin, an adaptation that contributes materially to heat tolerance. They are also capable of walking long distances to obtain water. Apparently, however, the meat of the zebu is rather tough and hence it is often bred with other species. Early American settlers found the zebu to have advantages lacking in the cattle they brought from Europe and so a gradual process of interbreeding occurred. If the claims of the International Association of Zebu Breeders are to be accepted, crossbreeding with the zebu is extremely prevalent. If so, there are few cattle in either North or South America that can be presumed to be totally free of zebu ancestry, although in most cases the distinctive hump is no longer manifest. Indeed, Dr. Shore has asserted that, if Hazon Ish ate meat, he must have partaken of the meat of such animals because all meat available in Israel during his lifetime was derived from those hybrids. Hence Dr. Shore's contention that Hazon Ish was actually speaking of the bison.",
+ "The controversy has been widely reported in the Israeli ḥaredi press, including Yated Ne'eman, Yated ha-Shavu'a, 26 Adar 5764, pp. 21-24; Ha-Shavu'a be-Yerushalayim, 28 Adar 5764, pp. 16-17; Mishpaḥah, 18 Adar 5764, pp. 2-3 and 25 Adar 5764, pp. 2-16 and p. 26; Sha'ah Tovah, Parashat Ki Tissa, 5764, pp. 7-9 and Parashat Va-Yakhel-Pekudei, 5764, pp. 12-24 and pp. 64-67; Hadashot ba-Kehillah, 25 Adar 5764, pp. 34-37; Yated Ne'eman, Shabbat Kodesh, Parashat Va-Yikra, pp. 10-11; and Ha-Edah, Parashat Va-Yakhel-Pekudei, 5764, p. 10 as well as in the Jerusalem Post, March 19, 2004, p. 45. The halakhic sources are reviewed in detail by R. Pinchas Eliyahu Eisenthal in the newspaper published by the Belz community, Ha-Maḥaneh ha-Haredi, Parashat Va-Yakhel-Pekudei, 5764, pp. 36-37, and reprinted in its kashrut journal, Ha-Mehadrin, pp. 51-58.",
+ "The halakhic issues have already been examined in detail in conjunction with this writer's earlier discussion of the kashrut status of the giraffe and need only be briefly summarized. Rema, Yoreh De'ah 82:3, rules that the talmudic criteria that once served to distinguish the twenty-four scripturally identified forbidden birds and all others that are kosher can no longer be relied upon and hence no bird may be eaten unless there exists a received tradition with regard to its identity as a kosher species. Shakh, Yoreh De'ah 80:2, as understood by Hokhmat Adam 36:1; Arukh ha-Shulḥan, Yoreh De'ah 80:10; Erekh ha-Shulḥan, Yoreh De'ah 11:4-5; and Hazon Ish, Iggerot Hazon Ish, I, no. 99, Iggerot Hazon Ish, II, no. 73 and Iggerot Hazon Ish, III, no. 113, maintains that, despite the fact that Scripture explicitly spells out the identifying criteria of kosher four-legged animals, these animals also may not be consumed in the absence of a tradition with regard to the kashrut of the species. Pri Megadim, Siftei Da'at 80:1, however, understands Shakh's comment as limited to the need for a tradition establishing that a particular species is a ḥayyah rather than a behemah. The primary difference is that the ḥelev, i.e., the fatty portions of the hindquarters of a behemah, are forbidden while those of a ḥayyah are not. According to Pri Megadim, no tradition is necessary to establish the fundamental kashrut of an animal having split hoofs. Pri Megadim's understanding of Shakh is accepted, inter alia, by Kaf ha-Hayyim, Yoreh De'ah 80:5, Bet Yizḥak, Amudei Zahav 80:3, and, more recently, by R. Samuel Ha-Levi Woszner, Teshuvot Shevet ha-Levi, X, no. 114. The controversy, of course, is of no relevance to Sephardim who follow the views of Shulḥan Arukh and do not accept Rema's stringency even with regard to birds.",
+ "As this writer has previously noted, the identical issue surrounds acceptance of the American buffalo as a kosher animal. The American \"buffalo\" is not at all a buffalo but a bison indigenous to the North American continent with regard to which, unlike the European buffalo, there is no tradition. The subject of Rabbi Woszner's responsum is, in fact, the bison rather than the zebu. As noted earlier, Dr. Shore has also pointed out that bison are much more dissimilar to cattle than are the zebu.",
+ "It may also be noted that Hazon Ish was somewhat less than absolute in his assertion that a zebu requires an independent tradition of kashrut. Hazon Ish's hesitation was based on the fact that he did not examine a zebu and hence was somewhat unsure of whether its characteristics differ sufficiently from other species of cattle to trigger that requirement. That question can also be raised with regard to other species such as elk, antelope and bison as well.",
+ "One further point should be noted. It is evident from Kovez Iggerot Hazon Ish, III, no. 113, that, in his second letter to Hazon Ish, Rabbi Herzog claimed that there was a mesorah or tradition with regard to the kashrut of the animal in question in the locale from which it was to be imported. Hazon Ish responded to that assertion with the observation that the mesorah of one country is of no avail in another country. Thus, Hazon Ish's concern was only with regard to importing the \"Indian ox\" to Israel. Accordingly, in countries in which the local zebu were accepted as kosher before dissemination of the comment of Shakh, it is certainly arguable that consumption of the meat of the zebu presents no problem even according to Hazon Ish."
+ ],
+ "Chapter X The Ketubah": [
+ "…Shimon ben-Shetaḥ came and ordained that all the husband's property be surety for payment of[his wife's] ketubah.",
+ "KETUBOT 82b",
+ "Recent years have seen the phenomenon of a veritable explosion in the publication of works on Halakhah. No doubt, the vast increase in such publications may be attributed in part to several secondary factors. In general, more books are now being sold than ever before. Computer typesetting has both speeded production and reduced costs, leading, at times, to hastily produced works of less than highest quality. The relative affluence of our society has resulted in ease of purchase and a vastly expanded marketplace. We live in an age of material acquisition. At a time that people are buying clothes, furnishings, gadgets, musical tapes and video cassettes with apparent abandon, it is not surprising to find many Jewish men and women of means purchasing new books as quickly as they are published. Jews, always known as the am ha-sefer, are now purchasing all manner of books and sefarim in large numbers. Primarily, however, the writing, publishing and purchase of Judaica and Hebraica reflect a pervasive \"zama lekha nafshi,\" a thirst for Torah study and knowledge among all segments of the Jewish community.",
+ "A particular genre of writing has achieved a new measure of popularity. As this writer has noted elsewhere, the thirst for knowledge among members of the committed and observant community has spawned a plethora of publications, both in Hebrew and in the vernacular, devoted to matters of Halakhah. The reception greeting the appearance of these works reflects an ardent search, not only for knowledge of theoretical matters, but also for practical guidance and instruction. The past two decades or so have witnessed the appearance of an apparently never-ending series of monographs devoted to a single mizvah or even to a particular aspect of a mizvah. Since there are 613 biblical mizvot and innumerable rabbinic extensions, there is no shortage of fertile ground for research. Some of these volumes appear in the form of encyclopedic studies; others are brief and concise how-to books. Some are compilations of essays and responsa; others are cryptic restatements of Halakhah, usually accompanied by copious annotations.",
+ "To be sure, these publications are not of uniform quality. Nevertheless, in many, if not most, cases these compilations contain valuable material presented in a carefully organized manner with exquisite attention to comprehensive detail. At times, addition of charts, diagrams and pictures enhances the usefulness of the work as, for example, is the case with regard to several works on laws of the four species and a number of monographs devoted to sheḥitah and kashrut. In many instances multiple works have been published dealing with the same halakhic problems. Thus, no fewer than four volumes devoted to the mizvah of shiluaḥ haken (sending away the mother bird) have appeared. The number of works devoted to laws of usury and family purity are too numerous to count. Almost, but not quite, in that category are compendia devoted to the laws of marriage and, in particular, the marriage ceremony. A number of those works contain material illuminating several aspects of the preparation of the ketubah that have aroused curiosity but with regard to which precedents and sources were heretofore virtually unknown to rabbis and laymen alike.",
+ "I. Delivery of the Ketubah",
+ "In recent years a novel practice has arisen in some circles with regard to delivery of the ketubah to the bride. In the past, it was standard practice for the officiant, after reading the document, simply to hand the ketubah to the bride or, alternatively, to a member of the bride's family to hold on her behalf. It is now quite common for the officiant to give the ketubah to the groom and to direct him to deliver it to the bride and, moreover, to designate the individuals who served as attesting witnesses to the presentation of the ring to the bride to serve as well as witnesses to the delivery of the ketubah.",
+ "Both the source of this practice and its rationale are unclear. The most prominent contemporary reference to this practice is that of R. Moshe Sternbuch, Teshuvot ve-Hanhagot, II (Jerusalem, 5754), no. 650, who reports that this was the practice of the Brisker Rav, R. Yitzchak Ze'ev ha-Levi Soloveitchik. A number of informative references to this innovation are also made by R. Samuel Eliezer Stern in his recently published monograph, Seder Ketubah ke-Hilkhatah (Bnei Brak, 5753). Included in that work is a letter by R. Joseph Efratti in which he conveys the views of R. Joseph Shalom Eliashiv. The report states that Rabbi Eliashiv does not regard the practice to be mandated by Halakhah, but that he nevertheless conducts himself in that manner because such was the wont of the late R. Iser Zalman Meltzer.",
+ "Upon first analysis, the practice seems to be without foundation. There is indeed a tannaitic controversy with regard to whether halakhic instruments such as a bill of divorce or a deed acquire validity by virtue of the signatures of witnesses or by virtue of the presence of attesting witnesses at the delivery of the instrument. As is evident from the discussion of the Gemara, Gittin 3b, R. Meir maintains that the efficacy of such instruments is conditioned upon the signatures of witnesses while, according to R. Eleazar, the instrument is effective only by virtue of the presence of witnesses at the time of delivery. According to many authorities, R. Eleazar maintains that the signature of witnesses on a deed is discretionary and is designed solely for evidentiary purposes, i.e., in the event that the witnesses die or are otherwise not available to testify to their earlier presence at the time of delivery of the instrument, their signatures demonstrate that such was in fact the case. Signatures of witnesses are indeed required on a bill of divorce but, according to R. Eleazar, only by reason of rabbinic decree designed to promote \"perfection of the world\" (tikkun ha-olam), i.e., in order to assure that the divorcée will be able to prove her capacity to contract a subsequent marriage. However, Rambam, Hilkhot Geirushin 1:16, rules that the presence of witnesses at the time of delivery is not an absolute requirement and accordingly declares that a bill of divorce is valid if it is either signed by witnesses or delivered in their presence. Nevertheless, Rambam also cites the view of \"some of the Ge'onim\" who ruled that the presence of witnesses at the time of delivery is an absolute requirement. Rambam's own position reflects the view that R. Eleazar recognizes that an instrument is validated either upon signature of witnesses or upon delivery in their presence.",
+ "That controversy is, however, limited to instruments that are performative in nature, e.g., bills of divorce whose execution serves to sever the matrimonial bonds or deeds that serve to effect transfer of title from the seller to the purchaser. There is no controversy with regard to non-performative instruments such as promissory notes. The obligation to repay a debt is engendered simply by acceptance of the funds advanced; the promissory note is but a memorial of the debt and, as such, its purpose is entirely evidentiary in nature. Since the purpose of a promissory note is evidentiary, there is no need—and indeed no role—for witnesses at the time of delivery of such a writing. Execution of a ketubah generates no new obligation. The obligation with regard to the statutory sum recorded in the ketubah arises from the marriage itself; additional obligations are generated by delivery and acceptance of a kerchief. The ketubah is designed to serve only as evidence of the assumption of the various obligations recorded in the instrument. Since that evidentiary function is fulfilled by the witnesses who sign the document there appears to be no further reason to require the presence of witnesses at the time of delivery.",
+ "Nevertheless, Rabbi Stern cites two very early sources that regard the ketubah as more than an evidentiary document reciting the groom's debt to his bride. A marriage need not necessarily be effected by means of presentation of a ring by the groom to the bride. It may also be effected by delivery of a properly executed document containing the formula \"Be thou consecrated unto me etc.\" However, execution of such an instrument requires scrupulous adherence to myriad halakhic minutiae virtually identical to those surrounding execution of a bill of divorce. Presumably, it is because of the fact that the drafting and execution of the requisite instrument is as cumbersome as the execution of a bill of divorce that employment of an instrument (shetar) as a means of effecting a marriage is unheard of in our day and indeed may never have been widespread. Yet, judging from the contents of two geonic sources, the practice seems to have been common in at least some communities during the early post-talmudic period. In a responsum published in Teshuvot ha-Ge'onim, ed. Simchah Assaf (Jerusalem, 5787), no. 113, Rav Hai Ga'on decries use of a ring rather than a shetar as an innovation that should be abolished. In urging that a shetar be used for that purpose Rav Hai Ga'on writes:",
+ "You should know that you incur great detriment by virtue of your custom of betrothing a woman other than at the time of the ketubah or shetar of betrothal. … Such was previously unheard of in Babylonia; they have no knowledge of marriage other than at the time of the ketubah. Many years ago, more than a hundred years, there was a custom in Kurasan (Kurdistan?) to betroth by means of a ring at a banquet or the like. There were many allegations, allegations of denial that marriage took place, and the matter resulted in detriment. Our master and teacher, Yehudah Ga'on, promulgated an ordinance that they not betroth other than in accordance with the manner of Babylonia, [i.e.,] with a ketubah, signature of witnesses and the blessing of the betrothal, and that any marriage not solemnized in this manner should be disregarded. … You also should set aside this practice and anyone who betroths without a ketubah and a shetar of betrothal, punish him until he rectifies the matter.",
+ "The concern expressed by Rav Hai Ga'on seems to have been that, in the absence of the evidence supplied by a properly witnessed shetar of betrothal, it was relatively easy to deny that a marriage had actually occurred. The terminology of the ordinance ascribed to R. Yehudah Ga'on seems to indicate that the ketubah itself served as a shetar of betrothal.",
+ "The format of the wedding ceremony included in the siddur of R. Sa'adia Ga'on provides that the bridegroom declare to the bride that she is consecrated to him \"with this goblet and with its contents and with this ketubah and with what is written therein\" and further instructs the groom to take the ketubah in his hand, deliver it to the bride and declare, \"Take the ketubah in your hands so that with it you enter my domain according to the law of Moses and Israel.\" Rabbi Stern asserts that R. Sa'adia Ga'on describes a ceremony in which two separate modes of betrothal are employed, i.e., presentation of a goblet as an object of value and delivery of the ketubah as a shetar kiddushin.",
+ "Rabbi Stern also cites two somewhat later sources that speak of the ketubah as fulfilling a secondary role as a shetar kiddushin. R. Aaron of Lunel, Orḥot Hayyim, Hilkhot Ketubah, sec. 1, writes, \"The groom takes the ketubah and gives it to the bride … for, if the earlier betrothal was not effective, the [betrothal] will be effective by means of shetar for thus is written in [the ketubah]: 'Be thou my wife in accordance with the law of Moses and Israel.' \" Similarly, Teshuvot R. Eli ezer me-Trashkun, no. 56, writes that the phrase \"Be thou my wife\" endows the ketubah with the status of a shetar kiddushin with the effect that if, as at times is the case, a borrowed ring is used in the marriage ceremony the marriage is effected by means of shetar.",
+ "The thesis that a ketubah may also be effective as a shetar kiddushin (instrument of betrothal) is subject to a number of objections:",
+ "1. No transaction is valid without intent of the parties. Since neither the bride nor the groom have the vaguest notion that the ketubah is a shetar kiddushin, there is no reason to assume that they intend to effect a marriage through its delivery and acceptance. Moreover, the witnesses to delivery of the ketubah are not at all aware of the fact that they are witnessing an act of betrothal. Consequently, the purported marriage by means of shetar should fail for lack of attesting witnesses.",
+ "2. As is the case of a get, or a bill of divorce, which must be written for the express purpose of divorce (le-shem gerushin), a shetar kiddushin must be written for the express purpose of marriage. That rule is recorded by Rambam, Hilkhot Ishut 3:4, and by Shulḥan Arukh, Even ha-Ezer 32:1. In particular, the operative clause, \"Be thou my wife,\" must be written by the scribe for the express purpose of generating a shetar kiddushin. Such intent on the part of the scribe is generally lacking; indeed the requirement of intent makes utilization of a printed form impossible. Since a printed ketubah cannot serve as a shetar kiddushin, delivery of that document in the presence of witnesses seems to serve no purpose. Moreover, Shulḥan Arukh, Even ha-Ezer 32:1, rules that a shetar kiddushin must be drafted with the prior knowledge of the bride. The bride certainly has no knowledge that the ketubah is drafted as a shetar kiddushin.",
+ "It is indeed the case that Or Sameaḥ, Hilkhot Ishut 3:4, cites a number of talmudic sources in suggesting that the requirement of intent (lishmah) pertaining to a shetar kiddushin is somewhat different from that pertaining to a bill of divorce. A get must be written for the specific purpose of divorce and, moreover, for the specific purpose of the divorce of a particular husband and wife. The same principle applies to a shetar kiddushin. Or Sameaḥ suggests, however, that a shetar kiddushin, unlike a get, may be valid even if there is no specific declaration of intent on the grounds that the requisite intent is to be presumed or imputed (setama lishmah ka'i).",
+ "Or Sameaḥ's thesis is based upon an examination of the regulations governing similar types of intent (lishmah) in entirely different areas of Halakhah. An analogous requirement of intent is specified with regard to the offering of sacrificial animals. The animal must be slaughtered with intent to offer the animal for the appropriate category of sacrifice and to offer the animal on behalf of the proper party. Nevertheless, provided there is no contradictory intent, the already sanctified animal is deemed to have been offered for its designated purpose and on behalf of its owner. The already sanctified animal is, in a sense, \"preprogrammed\" for a particular purpose and owner and, hence, constructive intent already exists. Such constructive intent is not imputed in the drafting of a bill of divorce. The distinction lies in the fact that women are not customarily divorced by their husbands and therefore actual intent is required.",
+ "Or Sameaḥ notes that the Sages of the Talmud assumed that it is normal and usual for a woman to marry. Hence, argues Or Sameaḥ, intent for marriage may be imputed constructively with the result that explicit intent to draft the instrument for purposes of marriage is not necessary. Or Sameaḥ himself expresses doubt with regard to the validity of that conclusion. Or Sameaḥ notes that it may indeed be normal and usual for a woman to marry, but not necessarily to marry the man named in the shetar kiddushin. Accordingly, there is no basis to impute constructive intent to draft the instrument as a shetar kiddushin for the particular parties named therein. Nevertheless, Rabbi Sternbuch tentatively suggests that, if the couple have previously bound themselves by articles of engagement subject to the penalty of ḥerem or excommunication for breach of promise, a presumption of intent does arise in the drafting of the shetar kiddushin and the presumption encompasses intent to draft the instrument on behalf of the particular parties. Rabbi Sternbuch reiterates this view in a letter addressed to Rabbi Stern that is included in the latter's Seder Ketubah ke-Hilkhatah, pp. 164-165. Against this thesis it may be argued that, since the scribe believes that he is writing a simple ketubah, that state of mind may be antithetical to intent for kiddushin. Moreover, the argument that the ketubah acquires the status of a shetar kiddushin because it is to be presumed that it is drafted for that purpose is cogent only with regard to a handwritten ketubah; in the case of a printed form there is no writer to whom intent can be imputed even constructively.",
+ "It seems to this writer that there exists yet another problem that requires analysis. Promissory notes and the like are customarily written in the past tense despite the fact that they are prepared in advance of the assumption of any obligation. Such instruments are contrafactual at the time they are drafted in the sense that they purport to memorialize an event that has as yet not occurred. Yet witnesses are permitted to sign such documents without incurring the onus of perjury. That is so because such documents must be delivered to the person bound thereby who will not be so foolhardy as to transfer the document to the person in whose favor it is executed unless and until the event generating the obligation described therein has actually occurred. Thus, in effect, the document contains an unstated condition upon which the testimony is predicated. In effect, the instrument must be construed as containing a provision declaring that if, and only if, the document is produced by the named beneficiary, his possession of the instrument will constitute evidence that it came into his possession in consideration of the transaction specified herein. Accordingly, such documents are drafted as statements of witnesses testifying to events that have already taken place because, when produced by the beneficiary, those events have indeed occurred. However, performative instruments such as a deed effecting transfer of real property or a bill of divorce are customarily written in the present tense, e.g., \"my field is [hereby] sold to you\" or \"this is to you from me a bill of divorce.\" Instruments of that nature are couched in the present tense because they are designed to give effect to the sale or to the divorce and are not primarily intended as evidence of the event. Accordingly, they are drafted as performative statements of the seller or of the husband.",
+ "The ketubah does indeed record the groom's declaration \"Be thou my wife etc.\" but does so only in the form of a recitation of the fact that a marriage has already taken place, i.e., as the event that gives rise to the financial obligations recorded in that document. Accordingly, it is recited as an integral element of the testimony of the witnesses rather than as a direct declaration of the groom. Thus, the phraseology is: \"Thus said so-and-so, our groom… 'Be thou my wife according to the law of Moses of Israel,' \" i.e., the witnesses testify that such a statement was made. It would be anticipated that a shetar kiddushin should consist of a written performative declaration by the groom addressed directly to the bride. It is not clear that a document recording a statement of third parties, i.e., the witnesses, presented as testimony to a past event can serve as a shetar kiddushin.",
+ "The practice of the groom himself delivering the ketubah to the bride is also reported by R. Shimon ben Ẓemaḥ Duran, Tashbaz, III, no. 301. Tashbaz, however, advances an entirely different reason for the practice. Tashbaz asserts that, according to Rif, the obligation of the \"additional ketubah\" (tosefet ketubah) voluntarily undertaken by the groom is not binding unless and until the ketubah is delivered to the bride. Rif maintains that a gift conveyed by deed is not effective until the deed is actually conveyed. Tashbaz asserts that the voluntary undertaking of the tosefet ketubah is in fact a gift and, hence, the same rule applies. However, as Rabbi Stern points out, the requirement that the instrument reach the hand of the beneficiary does not entail the further conclusion that such delivery must be in the presence of witnesses. Tosafot, Gittin 4a, declare that, even according to R. Eleazar, witnesses need not be present at the delivery of a deed or of a financial instrument since in all financial matters mere acknowledgment on the part of the party adversely affected suffices. That acknowledgment is evidenced by the signatures of the witnesses appended to the instrument.",
+ "Rabbi Sternbuch, both in his Teshuvot ve-Hanhagot and in his letter to Rabbi Stern, advances yet another reason for seeking to have the groom himself deliver the ketubah to the bride in the presence of witnesses. On the basis of a discussion recorded in the Gemara, Kiddushin 48a, Bet Yosef, Even ha-Ezer 32, asserts that, in the event that a shetar kiddushin is found to be defective, the marriage may yet be valid on the basis of the intrinsic value of the paper upon which the shetar is written. Transfer of the shetar to the bride includes conveyance of title to the paper upon which it is drafted. The paper may thus serve as an object of value constituting kesef kiddushin. Accordingly, asserts Rabbi Sternbuch, in the event that a valid marriage was not previously effected by means of delivery of the ring, delivery of the ketubah in the presence of witnesses may also serve as a means of effecting a valid marriage on the basis of delivery of an object of value, viz., the paper upon which the ketubah is written. Since, according to this thesis, the ketubah does not function as a shetar kiddushin, but as a chattel, the document need not be drafted for purposes of marriage.",
+ "The premise upon which this suggestion is based is the subject of some dispute. Although Tosafot Rid, Kiddushin 3a, expresses a view similar to that of Bet Yosef, Rambam, Hilkhot Ishut 3:4, appears to disagree. More significantly, there is a material difference between the ketubah and a shetar kiddushin with regard to potential capacity to function as chattel rather than as a shetar. Every kinyan requires accompanying intent of conveyance. That intent must be simultaneous with the act of kinyan. Thus, a person who performs an act of kinyan with regard to property that he erroneously believes already belongs to him does not acquire title thereby. Nevertheless, in delivering and accepting a defective shetar, both bride and groom intend to enter into a kinyan that effects a valid marriage. Accordingly, Tosafot Rid and Bet Yosef maintain that, since there was both intent for marriage and a valid kinyan in the form of delivery of chattel, the marriage is valid because intent and the act of kinyan are simultaneous. Although the intent was for the kinyan of shetar, rather than of kesef, those authorities maintain that there need not be intent for, or knowledge of, the particular kinyan that is efficacious. However, in the case of a defect in the delivery of a ring, the bride and groom, who are unaware of the defect, assume that they are already married. Accordingly, at the time of subsequent delivery of the ketubah, they have no reason to intend a new kinyan. Hence, since there is no intent for kinyan that is simultaneous with delivery of the paper upon which the ketubah is written, the conveyance of that paper fails as kesef kiddushin.",
+ "Even if the practice of the groom personally transmitting the ketubah to the bride serves no purpose, it might well be regarded as innocuous. That, however, is not the case. In a letter addressed to Rabbi Stern and published in his Seder Ketubah ke-Hilkhatah, p. 181, Rabbi Nathan Gestetner points out that immediately following the delivery of the ring the couple are man and wife. Accordingly, if the bride is a niddah, the restrictions against handing objects to one another become effective immediately. In such instances, those strictures would serve to prohibit the groom from delivering the ketubah to the bride. Assuredly, it is unseemly publicly to call attention to the status of the bride by insisting that some grooms deliver the ketubah to the bride while insisting that others do not.",
+ "II. Writing \"Ve-Kanina\" before Kinyan Takes Place",
+ "The obligations recorded in the marriage contract, including the \"additional ketubah\" and the financial obligation for repayment of the nedunya or dowry, i.e., the funds and chattel brought to the marriage by the bride, are entered into by the groom by acceptance of a kerchief (sudar) presented to him on behalf of the bride. There are three distinct customs with regard to the execution of that kinyan: 1) The practice described as the \"custom of Jerusalem\" is for the kinyan to take place during the reading of the ketubah under the nuptial canopy during the course of the public reading of the document. According to that practice, the text of the ketubah is read and upon reaching the word \"ve-kanina\" (we have entered into a kinyan) the reading is interrupted, a kerchief is presented to the groom and the witnesses affix their signatures to the document and only then is the reading of the ketubah resumed. A variant practice is to execute the kinyan and sign the document at the conclusion of the ceremony, i.e., after the final blessing has been pronounced. The prevalent custom, however, is to enter into the kinyan and to complete the drafting of the ketubah before commencement of the marriage ceremony. That practice is recorded by Mordekhai, Gittin, chap. 2, sec. 342; Teshuvot Maharam Minz, no. 109; and by Teshuvot Maharil, no. 13.",
+ "Many printed forms of the ketubah omit the word \"ve-kanina.\" Others print the word but with an imperfectly formed kuf, i.e., without the stroke that forms the left portion of the letter, so that it may be inserted, and hence the word become cognitive, after the kinyan is actually performed. The concern reflected in this practice is \"the appearance of a falsehood\" (meḥazi ke-shikra), i.e., preparation of a statement declaring that kinyan has taken place at a time, when in fact it has not occurred, appears to be untruthful.",
+ "The earliest explicit reference to this matter appears to be in the work of a fifteenth-century German authority, Teshuvot Maharam Minz, no. 109. Maharam Minz records that, properly speaking, not only should the ketubah be signed after delivery of the ring, but he further states that the words \"ha-kol sharir ve-kayyam\" (and everything is valid and confirmed), which constitute the last line of the ketubah, should not be written until after the ring has been presented by the groom to the bride since \"to write the entire ketubah before the kinyan and before she has become his wife appears to be a falsehood (meḥazi ke-shikra).\" Maharam Minz regards completion of the ketubah as \"appearing untruthful\" for two reasons: 1) The bride is not yet a wife as is recited in the ketubah; 2) kinyan has not yet occurred. It is apparent that Maharam Minz was not specifically concerned with the writing of the word \"ve-kanina.\" Maharam Minz apparently maintains so long as some part of the document is left incomplete there is no \"appearance of falsehood\" with regard to the obligations recited in that document. Maharam Minz himself concedes that the \"majority of people\" ignore this consideration and draft the ketubah before the ceremony. He suggests that they do so because weddings were customarily celebrated on Friday afternoon and there was reason to fear that the ceremony might be delayed until close to the onset of Shabbat. R. Ya'akov Yitzchak Newman, in comments published in Seder Ketubah ke-Hilkhatah, p. 171, observes that there may well be reason to ignore the \"appearance of falsehood\" with regard to the marital status of the bride since that could be corrected only by executing the ketubah after the marriage has already taken place, at which time there is cogent reason to be concerned that in the course of the festivities the matter may be overlooked. There is, however, no similar reason to ignore the \"appearance of falsehood\" with regard to the writing of the word \"ve-kanina\" and hence that word should preferably be written only after the kinyan is actually executed.",
+ "The fifteenth-century German authority, R. Israel Bruna, Teshuvot Mahari Bruna, no. 94, peremptorily dismisses the concerns raised by Maharam Minz on three grounds: 1) Documents designed to serve as evidence may be prepared in advance of the event memorialized. Thus, a promissory note may be prepared at the behest of the putative debtor and delivered to him in advance of the extension of a loan. 2) Moreover, a bill of divorce contains language declaring a woman to be free of the marital bonds and permitted to every man despite the fact that the divorce is of no effect until she receives the document. As explained in another context by Rabbenu Nissim, Gittin 86b, it is self-understood that the statements contained in such instruments are contrafactual in nature and designed to certify those matters to be true only when and if the instrument has passed into the possession of the named recipient. 3) The concluding statement of the relevant discussion of the Gemara, Ketubot 85a and Gittin 26b, is that, as a halakhic norm, we are not concerned (lo-ḥaishinan) with the appearance of untruthfulness. According to Mahari Bruna there is no objection whatsoever to completing the entire document and having the witnesses affix their signatures provided that kinyan is executed before the ketubah is presented to the bride.",
+ "The practice of writing the word \"ve-kanina\" before kinyan is actually executed is also recorded by R. Shimon ben Ẓemaḥ Duran, Tashbaz, III, no. 301, who remarks that the practice is perfectly acceptable so long as the kinyan is performed before the witnesses affix their signatures. Ritva, Ketubot 85a, similarly states that any document may be drafted before the events recited therein have occurred. Ritva adds that it is the \"appearance of falsehood\" in the writing of an instrument that is dismissed by the Gemara as being of no halakhic concern but that signing such a document renders it invalid for reasons of actual falsehood. In context, however, Ritva's statement refers to a declaration made by a Bet Din. Ritva's statement clearly does not apply to a promissory note or to a bill of divorce and hence may also not apply to a ketubah. Nevertheless, Rema, Even ha-Ezer 66:1, cites conflicting views with regard to whether or not it is proper for witnesses to sign the ketubah prior to actual execution of the kinyan. The permissive view is cited in the name of Mordekhai, Gittin, chap. 2, sec. 342, who does not offer an explanation similar to that of Mahari Bruna but states that since the parties \"are engaging in that matter\" there is no appearance of falsehood.",
+ "The talmudic discussions presented in Ketubot 21b and 85a as well as in Gittin 26b focus upon the authentication of signatures by the Bet Din. A litigant has the power to challenge the validity of an instrument presented as evidence by alleging forgery and challenging the authenticity of the witnesses' signatures. That possibility can be obviated by the witnesses themselves appearing before Bet Din and acknowledging their signatures or by the Bet Din itself comparing the signatures of the witnesses with signatures on other documents already known to be authentic. The Bet Din then appends and signs an endorsement certifying the authenticity of the signatures. According to the vast majority of rabbinic scholars, the issue in the talmudic discussion is the propriety of the Bet Din writing the text of the endorsement in anticipation of hearing the relevant testimony but withholding their signatures until such testimony has been presented and accepted. The issue is the propriety of the Bet Din committing a matter to writing that gives rise to an \"appearance of falsehood,\" and whether, if improperly committed to writing, such authentication should be recognized. Shulḥan Arukh, Hoshen Mishpat 46:24, records conflicting opinions regarding the matter. The authorities cited differ in their assessment of the conclusion actually recorded in the talmudic discussions.",
+ "However, Shakh, Hoshen Mishpat 46:59 and Hoshen Mishpat 39:38, advances a quite different view of the controversy recorded in Shulḥan Arukh. According to Shakh, there is no dispute at all with regard to the writing of the endorsement by the Bet Din prior to hearing testimony. The dispute, according to Shakh, is with regard to whether the certification may be signed in advance and the document retained by the Bet Din until the authenticating evidence is presented. According to Shakh, no authority entertains the notion that an unsigned writing can be construed as a falsehood.",
+ "All authorities agree that the normative rule is in accordance with the first opinion cited by Shulḥan Arukh, viz., the position that the \"appearance of falsehood\" is not a matter of concern. Thus, for most commentators, the writing may be prepared by the Bet Din—albeit it may not be signed—before testimony is heard while, according to Shakh, the document may even be signed in advance. Moreover, virtually all authorities agree that the controversy regarding concern over the \"appearance of falsehood\" is limited to documents issued by a Bet Din. A Bet Din is duty bound to avoid any taint of unscrupulousness in order not to bring disrespect upon the judiciary whereas private individuals are under no such constraint.",
+ "The sole authority who expresses a different view is R. Issac of Dampierre recorded in Tosafot, Ketubot 21b. That authority draws no distinction between writings of a Bet Din and writings of a private individual and rules that it is forbidden to draft such documents although, if drafted, such documents are valid. However, Tosafot, Gittin 26a, s.v. R. Eleazar, indicates that, if there is indeed a concern for the \"appearance of falsehood,\" the names of the borrower and lender, the date and amount of the obligation may not be written until the obligation is actually assumed. Thus, if, in deference to the opinion of R. Issac of Dampierre, \"ve-kanina\" were to be omitted until kinyan is actually performed, it would also be necessary to delay filling in the names of the bride and groom, the date and the amount of the obligation.",
+ "It is thus not at all surprising that a number of contemporary scholars, including R. Benjamin Silber, Oz Nidberu, IX, no. 56, and R. Samuel Eliezer Stern, Seder Ketubah ke-Hilkhatah, p. 172, see no reason to delay writing the word \"ve-kanina\" until after kinyan is executed. R. Samuel ha-Levi Woszner, Seder Ketubah ke-Hilkhatah, p. 154, regards the practice of omitting the word to represent, at best, \"an enhancement and stringency,\" whereas Rabbi Stern prefers that the word \"ve-kanina\" be incorporated in the printed forms in order to minimize the potential for inadvertent omissions or error."
+ ],
+ "Chapter XI Insurance Related Questions": [
+ "Let man not say, \"I will eat, I will drink, I will enjoy the good and not trouble myself and Heaven will be merciful.\"",
+ "MIDRASH TANHUMA, VA-YEẒEI 13",
+ "I. Double Compensation for a Single Loss",
+ "1. The Question",
+ "One of the many issues surveyed by Rabbi Menachem Slae in his valuable work dealing with insurance-related questions, Ha-Bituaḥ be-Halakhah (Tel Aviv, 5740), is whether or not an individual who is insured against loss in case of fire or the like is also entitled to compensation from the person who has destroyed or damaged his property. Actually, the question arises in at least four distinct contexts:",
+ "1) The least complex question pertains to situations in which coverage is in the form of liability insurance. Liability insurance, as its name suggests, is payable precisely because the insured is indeed liable; the insurance company does no more than pay the obligation incurred by the insured. Liability insurance for motor vehicle accidents is the most familiar, but by no means the only, form of insurance of this genre. Whether the insurance company pays the claimant directly or reimburses the insured for damages charged to him is immaterial. In either event, the insurance is designed to obviate financial loss to the insured. Accordingly, even when the insurance company pays the claimant directly it does so on behalf of the insured with the result that the injured party has no further claim upon the insured. There is indeed no discussion in rabbinic literature of the right of a victim of a tort who has been compensated for his loss by the tortfeasor's liability carrier to seek additional indemnification from the tortfeasor himself. Presumably, the answer is too obvious to merit discussion in rabbinic sources.",
+ "2) A similar question—but one to which the answer is far less obvious—arises with regard to insurance designed to indemnify against loss of property, e.g., fire insurance or automobile collision (as distinct from liability) insurance. Insurance of such nature is designed to indemnify the insured for loss of property and is usually payable even though some other party may be at fault. Generally, when another person is at fault, e.g., when loss results from an automobile accident attributable to the negligence of the other driver, the insured will be able to demand payment from his own insurance company on the basis of his own collision coverage and, on the basis of a right of subrogation, the insurance company acquires the right to seek reimbursement from the negligent party. The insurance company, in effect, sues on the claim of its insured who, in return for immediate compensation, is deemed by operation of law to have assigned his interest in the claim to the insurance company. Although the insured has direct recourse against his own insurance company, in situations in which fault lies with another party the role of the carrier is essentially that of a surety who assumes primary responsibility in guaranteeing that the insured will suffer no loss. That role is analogous to the function of an arev kablan in Jewish law. Assuming, however, that, for some technical reason, the insurance company does not enjoy the right of subrogation or that it chooses not to pursue its claim, does Halakhah recognize the right of the injured party who has already been compensated by his own insurance company to claim tort damages from the tortfeasor as well? Or, to put the matter a bit differently, can the victim maintain a claim against the tortfeasor who has caused him harm and contend that any claim the insurance company may have with regard to funds paid by the tortfeasor to the victim by virtue of a right of subrogation is strictly between the victim himself and the insurance company and hence of no concern to the tortfeasor? Or, since the victim has already received insurance compensation to redress his loss, can the tortfeasor disclaim liability on the grounds that there remains no out of pocket loss to the victim? It is this question which has captured the attention of rabbinic scholars.",
+ "3) A similar question arises with regard to the liability of a bailee in a situation in which the bailor has insured his property against the loss for which the bailee is ordinarily responsible. May the bailor recover his loss from the bailee or can the bailee claim that since compensation has been paid by the insurance company there is, in fact, no loss?",
+ "4) A closely related yet somewhat different question arises with regard to an accident victim who accepts reimbursement for medical expenses on the basis of a health-care policy and also claims reimbursement for the same costs from the person responsible for causing the injury. Such a situation is different from one involving duplicate claims for property damage in that, typically, under the terms of the insurance contract and applicable secular law, there is no subrogation with regard to health-care claims and it is entirely legal for the claimant to collect twice. Does Halakhah similarly recognize such a right? The question also arises in a variant form in the case of a person covered by duplicate health-care policies neither of which contains a provision for coordination of benefits. May the insured legitimately submit duplicate claims to both insurance companies?",
+ "2. The Conflicting Rulings",
+ "The various responsa dealing with the question of double compensation for a single loss are devoted to a discussion of situations involving loss due to fire. A person causes a fire that destroys a house covered by fire insurance. Upon securing payment from his insurance company, the homeowner seeks identical damages from the person responsible for setting the fire. R. Aryeh Leibush Horowitz, Harei Besamim, Mahadura Tinyana, no. 245, and R. Chaim Wollstein, Teshuvot Divrei Hayyim, no. 49, both rule that the victim is not entitled to further compensation. In effect, those authorities argue that since, according to the terms of the insurance policy, the homeowner is compensated for fire damage, the person who set the fire has caused the homeowner no actual loss. Hence they conclude that, as between the homeowner and the tortfeasor, the homeowner has no claim. However, Harei Besamim observes that, if the insurance company and the insured negotiate a settlement representing less than the actual damages, the homeowner may properly seek recovery of the balance from the person who set the fire.",
+ "A diametrically opposed view is expressed by R. Shalom Mordecai Schwadron, Teshuvot Maharsham, IV, no. 7, with regard to a case of arson in which the property owner's loss was covered by insurance. In what is apparently an attempt to dispel the contention that the property owner has suffered no out of pocket loss, Maharsham remarks that \"… at the time that he burned the house he became liable for compensation. And if the householder profited in accepting insurance what [import] is there to [the arsonist] in this?\" Maharsham adds that since arson is a crime and moreover (as Maharsham correctly or incorrectly believed), since failure to inform the authorities of the identity of the arsonist is itself a culpable offense, it is clear that the insurance company did not intend its payment to be construed as being proffered on behalf of the arsonist. In terms of contemporary practice, it is perfectly clear that the insurance company does not intend its payment to exonerate even a merely negligent person who has committed no crime. Indeed, the insurance company will generally seek recovery from the tortfeasor. Maharsham's crucial point is that the tortious act did indeed cause financial loss in its commission; subsequent compensation by a third party does not nullify an already existing obligation unless such payment is proffered on behalf of the primary obligee.",
+ "In a further comment Maharsham offers a somewhat different perspective in arguing that logic (sevarah) dictates that there is nothing to prevent the insured from retaining the right to proceed against the person who set the fire. Maharsham categorizes an insurance policy as a commercial enterprise (misḥar) and hence he depicts the insurance proceeds as the profit of a commercial enterprise. Accordingly, contends Maharsham, no one other than the homeowner is entitled to share in the proceeds of that enterprise.",
+ "Moreover, contends Maharsham, the owner of the property certainly has standing to sue the arsonist even if the property owner must turn over any recovery for damages to the insurance company. Shulḥan Arukh, Hoshen Mishpat 294:6, records a similar rule with regard to a bailee. A gratuitous bailer who pleads that the bailment was stolen is required to substantiate his plea by taking an oath, but is not held liable. Nevertheless, if the thief is discovered, the bailer may sue the thief and the latter cannot challenge the bailer's standing to sue on the grounds that the bailee, who has already taken an oath and has been exonerated, does not stand to suffer any loss. Similarly, argues Maharsham, the victim of the fire has standing to sue the arsonist. Disposal of any recovery is then a matter entirely between the insured and his insurance company.",
+ "3. An Analytic Examination",
+ "The conflicting opinions of Harei Besamim and Maharsham with regard to what was certainly a novel question were disseminated at roughly the same time. That disagreement elicited a response by R. Yo'av Yehoshu'a Weingarten of Kintzk (Konskie), renowned in rabbinic circles as the author of Helkat Yo'av. That response appeared in one of the leading Torah journals of the day, Sha'arei Torah, vol. IX, no. 5 (Adar 5678).",
+ "The author of Helkat Yo'av asserts that neither of his predecessors had properly defined the focal issue. Incisively, he notes that the nature of tort damages must be examined in an analytic manner. Are such damages designed to redress the damage in order to make the victim whole? Or is liability simply a consequence of the tortious act? (Although, to be sure, if no damage occurs, there is no tort and hence no liability. As will be shown, the crucial difference is in a case of damage to the pecuniary value of an object but no resultant loss to the owner.)",
+ "R. Yo'av Yehoshu'a of Kintzk marshals significant evidence demonstrating that damage to the object, not loss to the owner, is the crucial factor in establishing tort liability. The Gemara, Bava Kamma 26b, discusses the question of liability of a tortfeasor who breaks a vessel in the course of its fall from a roof. The considerations formulated by the Gemara in its analysis of both sides of the question are extraneous to this discussion. Of significance is the fact that the situation that is the subject of that analysis involves damage to chattel but, since the vessel would in any event have shattered upon landing, the tortfeasor causes no loss to the owner. The fact that the Gemara considers the issue of liability in such circumstances and analyzes the matter on the basis of other considerations indicates that loss to the owner is not a necessary condition of liability.",
+ "That principle also underlies a question posed by the Gemara, Bava Mezi'a 34a. A bailee whose bailment has been stolen from him and who has been exonerated by his oath to that effect is treated by Halakhah as the owner of the bailment and hence, if the thief is apprehended, the bailee is entitled to receive the fine levied upon the thief. The Gemara even questions why the bailee should not similarly be entitled to claim wool grown by the stolen animal or young that are foaled. There seems to be no question that the bailee is indeed entitled to any increment in the value of the animal. In that case as well, the thief has caused no loss to the bailee who has been completely exonerated but who is nevertheless considered to be the victim. Apparently, the thief is required to pay compensation for the value of the object stolen even if the theft causes no actual loss to the victim.",
+ "The identical principle is reflected in the rule formulated by the Gemara, Gittin 42b, with regard to a slave who has suffered bodily harm at the hands of his master of a nature such that the master is obligated to free him but who has not yet received a bill of manumission. The Gemara declares that if, in that interim period, the slave is the victim of battery at the hands of another person, damages are paid to the master. That is so despite the fact that, since the master is no longer entitled to the service of the slave and must emancipate him, the master has sustained no loss as a result of the battery. Once again it is evident that damage, even if unattended by financial loss, is sufficient to engender tort liability.",
+ "The application of this principle to the insurance situation is obvious. Even if it is conceded that damage to insured property does not constitute a loss to the proprietor, that concession is irrelevant. The tortfeasor is liable, not because he causes loss, but because he has destroyed or damaged an object of value. Hence he remains liable even if the victim suffers no out of pocket damages.",
+ "Despite the cogency of his own analysis, R. Yo'av Yehoshu'a requested the readers of Sha'arei Torah to communicate their views to him and to supply references to any applicable sources that might shed light on the question. Later, complaining of a lack of response, he republished the identical article with a similar plea in Degel ha-Torah, an anthology edited by R. Menachem Mendel Kasher (Warsaw, 5681-5682), no. 13.",
+ "4. Bailments as Distinct from Torts",
+ "The related but somewhat different question of a bailee's obligation for loss otherwise covered by insurance is addressed by R. Meir Simchah of Dvinsk in his novellae on Rambam's Mishneh Torah, Or Sameaḥ, Hilkhot Sekhirut 7:1. A person entered into a leasehold agreement and explicitly assumed liability for loss due to fire. Subsequently, the lessor arranged for fire insurance on his property. Although a claim for fire damage was honored by the insurance company, the landlord sought to recover his loss from the tenant as well. Or Sameaḥ apparently takes it for granted that a loss has occurred for which the bailee is intrinsically liable and that a claim that the loss is negated by insurance compensation is spurious. The point that he does consider is based upon the fact that, unlike tort liability, the obligations of a bailee are the product of a bilateral contract. Since the bailee is liable only because he has assumed responsibility for loss due to fire, may he plead that he had no intention to assume liability for losses that are compensated by insurance?",
+ "The Mishnah, Bava Kamma 115b, describes a situation in which two donkeys belonging to separate masters are in danger of drowning. The Mishnah declares that if the owner of the less valuable donkey offers to rescue the more valuable donkey on the condition that the latter's owner compensate him by the loss of his own less valuable donkey, the rescuer's claim for such compensation is valid. The Gemara, Bava Kamma 116a, reports that Rav Kahana asked Rav whether that is so only if the rescuer's own donkey actually perishes or whether he is entitled to such compensation even if the rescuer's donkey manages to escape drowning on its own accord. The Gemara reports that Rav replied, \"Heaven acted favorably toward him,\" i.e., the contract is enforceable. Or Sameaḥ that the ruling is obviously predicated upon rejection of the claim that the obligation was assumed by the donkey owner only because he believed that the rescuer would suffer a loss as a result of neglecting his own animal but that he had no intention of compensating the rescuer for a loss that did not actually occur. That claim is impliedly dismissed on the grounds that a fortuitous \"act of God\" is of no relevance to the express terms of the contract. A fortiori, argues Or Sameaḥ, the lessor's own foresight in seeking insurance is of no relevance to the contract between himself and the lessee.",
+ "Or Sameaḥ further observes that, by virtue of the nature of bailment contracts, a bailee may at times receive compensation that is far in excess of the value of the bailment. The Gemara, Bava Mezi'a 35b, declares that, \"At times the owner pays [the value of] many cows to the hirer!\" The highly complicated fact pattern presented by the Gemara involves a situation in which a person hired a cow for a hundred days and then lent the same animal back to the owner for ninety days. The original hirer then rehired the identical cow for eighty days and again lent the animal to its owner for seventy days. The animal then died during the period in which it had been \"lent\" to its owner. According to the rules governing bailments, a borrower has absolute liability for loss or damage to the bailed chattel (other than damage in the form of \"wear and tear\" resulting from legitimate use of the borrowed object). In the hypothetical case described by the Gemara, two conflicting judgments are presented. R. Zeira ruled that since the owner \"borrowed\" his own animal twice he must pay his own lessee, who twice lent him back the cow, the value of two cows. Since he entered into two separate contracts for the hire of the animal he must also provide a cow for use during the unexpired rental periods to the extent that those periods were greater than the shorter periods for which the owner had borrowed back his own animal. Each time, after borrowing back his own animal for a period of time shorter than the rental period, the owner of the animal remained liable for providing the use of the animal for a period of ten days. Thus, the death of the animal left him with the responsibility for providing use of a cow for twenty days. Mar the son of Rav Ashi limited the owner's liability to one cow, since it was but a single cow that was borrowed twice, and an additional cow for use during a twenty-day period representing the unexpired portions of the periods of hire. According to both opinions, the hirer is entitled to fulfillment of the contract for the hire of a cow despite the fact that he is compensated by the borrower for the full value of the cow and hence sustains no out of pocket loss. The various obligations are assumed independently and each contract must be honored separately. The fact that the obligor has profited in some extraneous manner does not release the obligee from his contractual undertaking. Similarly, argues Or Sameaḥ, the fact that the property owner has profited from an insurance contract does not release the lessee from the latter's contractual undertaking.",
+ "An even clearer example of compensation unrelated to loss is presented by R. Zevi Pesach Frank, in an article published in Ha-Pardes, Tevet 5719, and included in his commentary on Tur Shulḥan Arukh, Har Ẓevi, Hoshen Mishpat 238, as well as by R. Yitzchak Ya'akov Weisz, Teshuvot Minḥat Yizḥak, III, no. 126. The rules governing bailment provide that a hirer is not liable for unavoidable damage whereas a borrower is liable even for damage attributable to force majeure. Accordingly, the Mishnah, Bava Mezi'a 35b, declares that, if a man hires a cow and lends it to another and the cow then dies a natural death, the hirer is not liable to the owner but the borrower must pay the hirer the full value of the cow. This is so despite the fact that, had the animal been returned to him, the hirer would have had to restore the cow to the owner. Thus, the hirer has suffered no pecuniary loss but is nevertheless entitled to compensation.",
+ "Both authorities maintain that the Mishnah demonstrates only that a bailor may be obligated to pay compensation even in the absence of actual loss but that it fails to demonstrate that this is true with regard to tortfeasors. The bailee's obligation flows from the bailment contract into which he has entered. The borrower has obliged himself to deliver the cow or its value to his bailor and has not limited his liability by stipulating that he will deliver the value of the cow only in case of actual pecuniary loss. The tortfeasor is obligated by virtue of statutory law which may well require actual loss as a condition of liability.",
+ "Hence, it is arguable that Or Sameaḥ was entirely correct in ruling that the lessee of real estate who assumes such liability is responsible for fire damage even though the homeowner has been compensated by insurance while Harei Besamim was equally correct in ruling that an arsonist could not be held liable in similar circumstances.",
+ "5. The Case of a Borrowed Automobile",
+ "A variation of this question occurs in the case of a person who borrows an insured motor vehicle and is subsequently involved in an accident. The owner, who is compensated for damages to his automobile by his own insurance company, suffers no loss. May he nevertheless claim damages from the borrower? That question is addressed by Minḥat Yizḥak, III, no. 126. Minḥat Yizḥak asserts that, since a) it is common knowledge that every automobile owner has insurance coverage and indeed such coverage is mandated by law and b) it is \"the custom of the land\" not to demand compensation from the borrower when insurance compensation is forthcoming, the borrower may plead that it was an implied condition of the bailment contract that he would not be held liable under such circumstances. In support of this contention Minḥat Yizḥak cites Teshuvot Havvot Ya'ir, no. 106, who rules that a maid cannot be held responsible for breaking a dish or glass since most employers do not attempt to collect damages for such loss.",
+ "Minḥat Yizḥak rules that the owner is entitled to recover from the borrower any increase in the insurance premium that may be levied upon him as a result of his claim. Although indirect loss is generally not actionable, this situation is different by virtue of the fact that, if the borrower disclaims liability for the increase in the insurance premium, the owner may forego his claim against the insurance carrier and pursue a claim for damages against the borrower. Minḥat Yizḥak apparently assumes that there is no \"custom of the land\" not to recover an increase in premium costs from the borrower.",
+ "6. Double Compensation for Medical Expenses",
+ "The question of recovery of medical expenses from a tortfeasor when those expenses have been defrayed by medical insurance would, on first analysis, seem to be no different from recovery of property damage that is covered by insurance. However, upon further examination, that issue, which has not been explicitly addressed by rabbinic scholars, is more problematic.",
+ "Rambam, Hilkhot Hovel u-Mazik 4:15, rules that medical expenses of a married woman for treatment of wounds sustained as a result of battery are payable to her husband because, as explained by Maggid Mishneh, ad locum, a husband must pay medical expenses incurred by his wife. Rosh, Ketubot 6:1, disagrees with Rambam's position and rules that the costs of treatment are payable directly to the physician. Rosh further rules that the tortfeasor is liable for estimated costs of treatment with the result that if the woman's recovery is more rapid than usual, and consequently the physician's fees are less than anticipated, the balance is payable to the wife, as is the case with regard to pain and suffering which accrues to the wife.",
+ "It would seem that, according to Rambam, the tortfeasor is liable for medical expenses only to the insurance company just as the tortfeasor is liable only to the husband who is responsible for his wife's medical expenses. Moreover, it would seem that, according to Rambam, the same should be the case with regard to property damage as well, as is indeed the view of Teshuvot Harei Besamim and Teshuvot Divrei Hayyim.",
+ "However, R. Elchanan Wasserman, Kovez Shi'urim, Ketubot, sec. 218, raises an objection with regard to Rambam's view. The Gemara, Gittin 12b, declares that, in the case of a battery committed against a slave, medical expenses are payable to the slave and not to the master. R. Elchanan poses the following question: Title to any property acquired by a slave is immediately vested in his master. If so, why are medical costs not paid to the master? Based on that difficulty, R. Elchanan develops the thesis that a battery victim has no pecuniary interest in a claim for medical costs; rather, the victim's claim is to be healed and restored to health. Battery generates an obligation in personam on the part of the tortfeasor to be made whole physically. The tortfeasor must either heal the victim himself or, if he is not proficient in the medical arts, he must hire a physician to do so on his behalf. R. Elchanan further asserts that a husband's obligation vis-à-vis the medical treatment of his wife is entirely similar, i.e., he must restore her to health and, if he is unable to do so, he must hire a physician to do so on his behalf. Payment of medical expenses to the husband by the tortfeasor is not a satisfaction of a monetary claim of the husband but simply an expedient designed to assure medical treatment of the wife for which, in cases of battery, the tortfeasor has primary responsibility. It follows from this theory, declares R. Elchanan, that, if the victim dies of other causes before receiving medical treatment, the heirs have no claim of recovery of the costs that would have been incurred for medical treatment.",
+ "If so, it would seem to this writer, that, according to R. Elchanan's thesis, were a physician willing to treat the patient without a fee, the victim would have no claim whatsoever upon the tortfeasor for medical expenses since that claim is not in the nature of a pecuniary claim for damages but constitutes a claim in personam to be healed. Similarly, if payment is made by a third party, e.g., an insurance company (or even a relative who defrays the costs ex gratia rather than in the form of a loan), the tortfeasor has no liability.",
+ "However, R. Elchanan's position is a bit problematic. Estimated medical expenses must be paid in full even if the healing process takes less time than usual. The balance is categorized by the Gemara, Gittin 12b, as a form of compensation for pain and suffering. Compensation for pain and suffering is payable to the wife and indeed, according to Rosh, the balance of the estimated medical expenses is similarly payable to the wife. Baḥ, Even ha-Ezer 83:4, declares that, according to Rambam, the husband may retain the balance. However, according to R. Elchanan, who asserts that the husband himself has no pecuniary interest in his wife's claim for medical expenses but is merely a custodian of the funds or a conduit to assure her treatment, any balance should logically accrue to the wife. If that is indeed R. Elchanan's view, it is in conflict with that of Baḥ. Thus, if R. Elchanan's thesis is accepted, an accident victim cannot be allowed double recovey for medical expenses. If, on the other hand, Baḥ's view is accepted, it follows that medical expenses must be treated in the same manner as other tort damages with regard to the possibility of double recovery.",
+ "II. Life Insurance and the Ketubah",
+ "In our society it is commonplace for husbands to purchase life insurance policies and to name their wives as beneficiaries. The laudable motivation is to provide funds for the support of a wife who becomes bereft of her husband and at the same time loses her source of financial support. The halakhic question that arises is whether a wife who is the beneficiary of a life insurance policy of significant value may also claim payment from her husband's estate of the obligations arising from her ketubah or whether that claim is to be deemed to have been satisfied by the proceeds of the insurance policy.",
+ "Although the issue may elude the attention of the parties, it is present in a number of cases, particularly in instances of second marriages, in which financial disputes arise between the widow and the husband's heirs. Surprisingly, there appears to be but a single published discussion of this question. That analysis, authored by a Sephardic scholar, R. Yehudah Chaim ha-Kohen Masalton, is included in his Ve-Zot le-Yehudah (Cairo, 5697), Even ha-Ezer, no. 8.",
+ "The details of the case brought before Rabbi Masalton and the Bet Din of Cairo are rather complex. The policy in question was for the sum of five hundred guineas payable to the policyholder twenty years after the date of issue or, in the event of his death in the interim, to the insured's wife immediately upon his death.",
+ "In Ashkenazic communities, the amount of the tosefet ketubah, i.e., the sum to which the groom obligates himself in addition to the amount prescribed by statute, is standard. In the case of a virgin bride, standard practice is to place a value of one hundred silver zekukim upon the property brought to the marriage by the bride as a dowry. That sum is returnable to the bride upon termination of the marriage either by death of the husband or divorce. The groom customarily assumes an obligation to return that sum together with an additional one hundred silver zekukim for a total of two hundred silver zekukim in addition to the statutory two hundred zuzim. In many Sephardic communities, the groom's assumption of an obligation in the form of tosefet ketubah is subject to voluntary adjustment and/or negotiation with the result that the value of the obligation represented by the ketubah may vary from case to case.",
+ "Coincidentally or by design, in the case under discussion, the widow's ketubah declared an obligation in the sum of five hundred guineas—precisely the face value of the insurance policy. That sum was promptly paid to the widow by the insurance company. The matter was further complicated by a local custom that was acknowledged by Rabbi Masalton as an implied condition of the agreement memorialized in the ketubah. Local custom denied recovery of the tosefet ketubah in whole or in part unless an equal amount remained in the estate for distribution to the heirs. In the case under discussion, the total value of the estate was two hundred and fifty guineas.",
+ "The heirs contended that the insurance policy did not represent a gift to the wife but was designed to assure payment of the ketubah. But, they further claimed, since the total value of the estate, including the insurance proceeds, totaled seven hundred and fifty guineas, the widow was entitled to no more than fifty percent, i.e., three hundred and seventy-five guineas. Accordingly, not only did they decline to make any additional payment to the widow, but they also demanded that the widow turn over to them the sum of one hundred and twenty-five guineas, representing the difference between fifty percent of the estate (inclusive of the proceeds of the insurance policy) and the amount she had collected from the insurance company.",
+ "Rabbi Masalton correctly notes that designation of a beneficiary on an insurance policy could not constitute a valid conveyance of the value of the policy for the obvious reason that the policy does not acquire that value until the death of the insured. Hence, any such conveyance would fail by reason of the fact that the property to be conveyed is not yet in existence at the time of the conveyance (davar she-lo ba le-olam). However, Rabbi Masalton notes that although immediate transfer of title is not possible, a person can validly obligate himself to deliver an object of value that is not yet in existence. Nevertheless, citing Teshuvot R. Akiva Eger, no. 141, Rabbi Masalton argues that if a person has obligated himself to deliver property not yet in existence, e.g., the fruit of a tree, but dies before the fruit comes into existence, his heirs are under no obligation to transfer the property to the decedent's designee. Two theories have been advanced in explanation of why heirs are not bound to consummate the conveyance of the title even though the decedent, were he alive, would be obligated to do so: (1) since transfer of title has not been consummated, the obligation is personal in nature and, in effect, dies together with the obligee; or (2) even if a lien attaches upon the property when the property comes into existence, such a lien cannot be generated in cases of inheritance since absolute title vests in the heirs prior to attachment of the transferee's lien upon the fruit and thereby preempts such attachment. Applying that principle, Rabbi Masalton argues that, since the policy acquires the nature of property only upon the death of the insured, the property does not vest in the policyholders but in the heirs who are not bound by the policyholder's undertaking.",
+ "Rabbi Masalton's characterization of an insurance contract as an undertaking by the policyholder obligating himself to deliver the proceeds to the beneficiary is not borne out by the facts. In actuality, the policyholder does not bind himself to the beneficiary in any way. Indeed, a policyholder is usually at liberty to change beneficiaries or even to surrender the policy.",
+ "Proper analysis of the halakhic issues depends upon correct understanding of the nature of life insurance policies. An insurance policy constitutes nothing more than a contract between the policyholder and the insurance company with payment due to the policyholder himself in form of the cash value of the policy upon surrender (or, for contemporary policies, payment of the face value upon survival to age 99) or, upon death of the insured, payment of the face value either to his estate or to a designated beneficiary. Thus, the original question remains: In directing the insurance company to make payment to his wife upon his demise, did the husband direct the insurance company to make an ex gratia payment on his behalf or did the husband direct the insurance company to tender payment in satisfaction of the claim represented by the ketubah?",
+ "Rabbi Masalton advances a second line of reasoning that is relevant even upon an accurate analysis of the character of an insurance policy. He argues that, if indeed it was the husband's intent to make a gift of the proceeds to his wife, the gift is governed by the halakhic provisions stemming from the principle \"It is a mizvah to fulfill the words of the deceased\" as recorded in Shulḥan Arukh, Hoshen Mishpat 252:62 and Even ha-Ezer 54:1. In light of the many authorities who maintain that \"It is a mizvah to fulfill the words of the deceased\" even with regard to property that comes into possession of the estate after the testator's death, Rabbi Masalton argues that the heirs are under obligation to fulfill those wishes. However, in the case brought before him, he questions whether that was indeed the husband's intent since, under the terms of the policy, had the husband survived for a period of twenty years, payment would have been made to him rather than to the wife. Accordingly, argues Rabbi Masalton, it is likely that the husband did not intend the policy to be a gift but to provide assurance of payment of the ketubah. Thus, Rabbi Masalton's reasoning would lead to the conclusion that a typical life insurance policy that provides for payment only upon death of the insured is to be construed as a gift to the wife. Nevertheless, in the concluding section of his responsum, Rabbi Masalton asserts that in a city in which the claim for payment of the tosefet ketubah might entirely deplete an estate and effectively disinherit the heirs, it is unthinkable that a husband would intend his wife to be the beneficiary of his life insurance policy and collect her ketubah as well. Moreover, asserts Rabbi Masalton, many authorities maintain that the principle \"It is a mizvah to fulfill the words of the deceased\" is applicable only in situations in which funds have been deposited with a bailee with specific instructions for disbursement after death. He further cites authorities who, accordingly, maintain that \"It is a mizvah to fulfill the words of the deceased\" does not apply to property not yet in existence when such a directive is issued. Furthermore, Mordekhai, Bava Batra, sec. 592, rules that a deposit accompanied by an express declaration, \"If I need the funds, return them to me; but if I die, give them to my son\" does not qualify as a valid testament. The rationale underlying Mordekhai's ruling is that \"It is a mizvah to fulfill the words of the deceased\" applies only to situations in which designation of a beneficiary is absolute. Rabbi Masalton argues that, even if the provision is not spelled out in the insurance contract, since it is commonly known that a policy can be surrendered for its cash value, every insurance policy, is, in effect, predicated upon a specific reservation allowing the policyholder to reclaim its cash value and hence the heirs are under no obligation to \"fulfill the words of the deceased.\"",
+ "Rabbi Masalton reports that, because of the element of doubt involved, the Bet Din allowed the widow to retain the proceeds of the insurance policy that were already in her possession but disallowed any additional claim for satisfaction of the ketubah.",
+ "As is evident from the foregoing discussion, adjudication of this issue involves two separate questions: (1) Whether the intent of the husband in purchasing an insurance policy is to assure payment of the ketubah or whether it is intended as an entirely separate ex gratia provision for his wife. (2) If the latter, whether the heirs have a claim for recovery of the proceeds either from the insurance company or from the widow on the grounds that (a) there was no inter vivos gift and (b) they are for some reason not obligated to \"fulfill the words of the deceased.\"",
+ "It seems to this writer that the first issue may be resolved on the basis of the general halakhic principle that possession by a creditor of an instrument of indebtedness is prima facia evidence of non-payment of the debt. As expressed by the Gemara, Bava Batra 70a, if the debt has indeed been paid, \"What is your note doing in my hand\" (shetarkha be-yadi ma'i ba'i)? That presumption represents an assessment of human behavior. A debtor who has satisfied a debt simply does not allow a creditor to retain a promissory note that constitutes evidence of ongoing indebtedness. The debtor will decline to discharge the debt unless and until the promissory note is returned to him. A ketubah is simply a particular type of promissory note. A husband who makes provision for payment of the ketubah during his own lifetime is entitled to recover the ketubah. Indeed, in discussing what is to be done with a ketubah that originally belonged to a woman who is still married to the man named in that instrument but which has been lost and subsequently found by a stranger, the Gemara, Bava Mezi'a 7b, considers the possibility that the ketubah may have been lost by the husband who may have recovered the ketubah from his wife upon delivery to her of a \"bundle\" of coins which she can later apply to payment of the ketubah when it becomes due. It would clearly be inappropriate for the wife to retain her ketubah once the debt it represents has been satisfied lest it be used to claim the debt a second time.",
+ "Assuredly, as noted by the commentaries on Bava Mezi'a 7b, a creditor may at times require a debtor to deposit a pledge as security for payment even if the creditor holds a promissory note. Accordingly, if the insurance policy is designed only as security in the event of failure of the heirs to pay the value of the ketubah, possession of that instrument by the wife does not constitute evidence of non-payment. Unlike a bundle of coins which are to be returned upon payment of the ketubah, the proceeds of an insurance policy would constitute actual payment of the ketubah rather than security for future payment. Thus it is certainly arguable that the husband would not name his wife as beneficiary and also permit her to retain her ketubah unless he intends the insurance proceeds to be a gift unrelated to payment of the ketubah.",
+ "It is of course true that, were the husband to recover the ketubah on the claim that the obligations of the ketubah have been satisfied by purchase of an insurance policy, the couple would be forbidden to engage in marital relations since, in the absence of an instrument demonstrating the husband's indebtedness, there is nothing to prevent him from acting precipitously in divorcing his wife. However, that consideration does not defeat the underlying point, viz., that a person does not allow a creditor to retain evidence of a debt that has been satisfied. Hence, a husband would not satisfy the obligations of which the ketubah serves as evidence so long as his wife retains the ketubah for any reason. However, since the wife must retain possession of the ketubah so that the couple may legitimately continue to engage in marital relations, the husband, if he intended the insurance proceeds to be in lieu of payment of the ketubah, would perforce demand a receipt or acknowledgment of that arrangement upon naming his wife as beneficiary. It therefore follows that, if the husband names his wife as beneficiary on an insurance policy and also allows her to retain possession of the ketubah without obtaining such an acknowledgment, he does not intend the insurance proceeds to serve as satisfaction of the claims represented by the ketubah. Contrary to Rabbi Masalton's contention, in our society there is certainly no contradictory presumption that a husband would refrain from any and all acts that would serve completely to deprive his heirs of any share of his estate.",
+ "If the insurance policy is regarded as a gift to the wife, it seems to this writer that there is no reason to regard the proceeds available upon death of the insured as a deposit with the insurance company with accompanying instructions for delivery to the beneficiary. Were that the case, discussion of the applicability of the obligation to \"fulfill the words of the deceased\" would be relevant. But, in point of fact, the funds do not represent a deposit that is returned upon death of the insured but constitute payment of indebtedness incurred by the insurance company in consideration of the premiums paid. When a beneficiary is named at the time the policy is issued the indebtedness is assumed by the insurance company in a conditional manner, i.e., the indebtedness is incurred directly in favor of the beneficiary but is due and owing only upon death of the insured unless the policy is surrendered by the insured in which case the indebtedness is limited to the cash value and is in favor of the insured. Since it is the insurance company that stands as a debtor vis-à-vis the beneficiary, the heirs have no standing in the matter. Accordingly, in the view of this writer, the widow's claim for payment of her ketubah should be allowed."
+ ],
+ "Chapter XII Kohanim and Flights Leaving Israel": [
+ "\"The fear of God is pure, enduring forever\" (Psalms 19:10). What is [the meaning of] \"enduring forever\"? Come and see! A mortal who gives a gift to his friend, even if it is a hundred gold coins, how long does it remain in his possession? Two [years], three years, even his entire lifetime. Does it remain in the possession of his children and in the possession of his grandchildren? However, the Holy One, blessed be He, gave a gift to Aaron and his sons which does not depart from them for ever and ever, as it is said \"… and it shall be unto him and to his seed after him a covenant of everlasting priesthood\" (Numbers 25:13). The Holy One, blessed be He, said to him, \"Even though the Temple is destined to be destroyed and the sacrifices abrogated and the high priesthood interrupted, purity is never abrogated. Therefore it says, \"The fear of God is pure, enduring forever.\"",
+ "MIDRASH HA-GADOL, LEVITICUS 21:1",
+ "Said R. Levi: Because of Aaron's awe of the Holy One, blessed be He, he was privileged to be given this section which does not depart from him, his sons or his grandsons, until the end of all generations. Which [section] is it? It is the section of [defilement of] the dead, as it is said, \"And God said to Moses: Speak unto the priests, the sons of Aaron…\" (Leviticus 21:1).",
+ "VA-YIKRA RABBAH 26:6",
+ "I. The Problem",
+ "As recorded in Leviticus 21:1-4, other than in conjunction with the burial of a close relative, kohanim, the descendants of Aaron, are forbidden to defile themselves through contact with a corpse. Late in the summer of 2001 Rabbi David Morgenstern of Jerusalem was approached by a newly-observant Israeli pilot who relayed a question raised by a colleague: How is it that kohanim are permitted to embark on flights leaving Lod that pass over a cemetery in Holon? Upon investigation it was discovered that the situation has been in existence since some time in 1984 when flight patterns were altered to minimize flights over densely populated areas north of Ben Gurion airport and to avoid overflying a military area south of the airport. Although the details are not clear, it seems that some night flights departing to the United States use an alternate route but that all flights to European cities fly over Holon. It is reported that government officials have given assurance that flight plans would be altered in order to obviate the problem but that, in actuality, such changes have not been implemented.",
+ "Although there have been previous discussions of the permissibility of kohanim flying over cemeteries, the reports of regular and ongoing cemetery overflight affecting vast numbers of travellers embarking from Ben Gurion airport have spawned a number of highly erudite halakhic treatments of this topic. Upon discovery of the problematic flight plans, a number of scholars formed a group styled as Kanfei Yonah for the purpose of investigating the various halakhic considerations with regard to possible priestly defilement in the course of such overflights. The findings of that group were published by Rabbis Mattisyahu ha-Kohen Halberstadt and Abraham Judah Goldmintz of Yeshivat Mir in Jerusalem in a pamphlet bearing the title \"Kanfei Yonah: Tisah me-al Kevarim.\" An article discussing the same issues authored by R. Naphtali Baruch Spitzer appears in Kol ha-Torah, no. 52 (Nisan 5762), published by Agudath Israel of Great Britain. A responsum by R. Joseph Shalom Eliashiv and an accompanying article devoted to this topic authored by Rabbis David ha-Kohen Munk and Yohanan Alexander Lombard were published in Yeshurun, vol. X (Nisan 5762). An article by R. Jacob Epstein presenting a number of leniencies that would render such flights permissible to kohanim as well as a rebuttal by Rabbis Halberstadt and Goldmintz of the Kanfei Yonah group are included in Teḥumin, vol. XXII (5762). A further survey of a number of leniences offered by R. Yirmiyahu Menachem Cohen appears in a journal published by the Conference of European Rabbis, Sridim, no. 21 (Nisan, 5763). Much of that material was earlier published by Rabbi Cohen in his Teshuvot ve-Herim ha-Kohen (Jerusalem, 5741), no. 61.",
+ "II. Tum'at Ohel—Defilement through Overhanging",
+ "A corpse defiles by means of tactile contact and also, as stated in Numbers 19:14, defiles persons, vessels and artifacts present within the same tent. Moreover, as recorded by Rambam, Hilkhot Tum'at Met 1:10, persons and implements directly above or below a corpse also become defiled. Such defilement occurs regardless of the distance between the person or object and the corpse because a corpse defiles ad coelum et ad infernos unless there is an interposition (ḥazizah) consisting of an object not subject to defilement. The Gemara, Hullin 125b, records a controversy with regard to whether defilement occurring in such fashion is in the category of tactile defilement or whether the basis of that defilement lies in the fact that the person or the object, regardless of its size, has in effect formed itself into a \"tent\" over the corpse. Rabbenu Tam, Sefer ha-Yashar, no. 275, explains that the rule providing that a tent serves as an interposition preventing defilement from ascending ad coelum is based upon the verse \"every one that comes into the tent and every thing that is in the tent shall be unclean seven days\" (Numbers 19:14). The import of the text is twofold in nature: a) a tent serves to impart defilement to everything under its roof; and b) it serves to prevent defilement from extending beyond its confines.",
+ "An artifact that does not touch the corpse but is spread above it not only becomes defiled but, if it is of the requisite size, has the status of a \"tent\" with the effect that persons, artifacts and foodstuffs under that object become defiled even though there is no contiguous contact with the corpse. At the same time, however, an item spread above the corpse in this manner, since it has the status of a \"tent,\" has the effect of limiting defilement and causing defilement to be contained within the area beneath it with the result that anything above that person or object remains in a state of ritual purity. Applying that principle to an airplane, the lower surface of the plane could itself serve as an interposition preventing defilement from entering and affecting anyone or anything within the plane.",
+ "However, the Mishnah, Oholot 8:5, posits a number of exceptions to that rule. Included among those exceptions are a person, animal or artifact \"leaping\" from place to place, a flying bird, a flapping cloak and a ship moving on the water. Persons, animals or objects encompassed in that category do not constitute a \"tent\" that serves to prevent ascension of defilement ad coelum or to convey defilement to all objects beneath. Rambam, in his Commentary to the Mishnah, Oholot 8:11, and in Hilkhot Tum'at Met 13:5, explains that this provision is rooted in the consideration that members of this class do not have the status of a \"durable tent\" (ohel ha-mitkayyem). R. Ezekiel Landau, Teshuvot Noda bi-Yehudah, Mahadura Tinyana, Oraḥ Hayyim, no. 30, amplifies that characterization by noting that a cloak billowing through the air is not grounded in any way but is suspended in the air by the wind and hence provides no shelter to that which is below; a moving ship and a flying bird do not remain in a fixed position and cannot be described as forming a protective \"tent\" over anything underneath.",
+ "Tiferet Yisra'el, Bo'az, Oholot 8:6, declares that although members of this class do not have the status of a \"tent\" even for purposes of constituting an interposition, nevertheless, they themselves do become defiled. That is indeed the position of a host of early-day authorities. An airplane flying through the sky is certainly comparable to a ship sailing in the sea and a bird flying in the air. Accordingly, since an airplane is not a \"tent\" but does itself become defiled, it cannot serve as an interposition preserving persons within the plane from defilement. That fundamental point was noted in the early days of airplane travel by R. Aaron Epstein, Teshuvot Kappei Aharon (Munkàcz, 5693), nos. 25 and 50, and repeatedly confirmed in the intervening decades by a host of authorities.",
+ "III. Ohel Zaruk—A \"Thrown Tent\"",
+ "Despite the unopposed statement of the Mishnah, Oholot 8:5, declaring that a person or object leaping from place to place, a flying bird, a flapping garment and a boat moving upon water are not interpositions for purposes of defilement, the Gemara, Eruvin 30b, Haggigah 25a, Gittin 8b and Nazir 55a, cites a controversy recorded in a beraita regarding a similar but substantively different situation, \"If one enters the land of the gentiles in a box, chest or cupboard, Rabbi [Judah the Prince rules that] he is defiled and R. Jose the son of R. Judah [rules that] he [remains] pure.\" The Gemara analyzes that dispute as a controversy with regard to whether or not an ohel zaruk, i.e., a \"cast tent\" or a \"thrown tent,\" enjoys the halakhic status of a tent. The question is equally applicable to a person who is transported over a grave in a box or other container. If a \"thrown tent\" is not a tent, the \"box, chest or cupboard\" cannot function as an interposition and the person transported in that manner is subject to the rabbinically legislated defilement attendant upon one who exits the Land of Israel and enters the \"land of the gentiles\" or to the biblically ordained defilement occasioned by traversing a corpse or a grave. However, if such objects are indeed \"tents\" they serve as an interposition and hence, since the person transported in that manner has not physically set foot on defiled ground nor been in a tent resting thereon, he remains in a state of ritual purity even though he is no longer within the confines of the Land of Israel. Similarly, if such an object is itself a \"tent,\" a person enclosed within such an object does not himself become a \"tent\" over a corpse or a grave. Rambam, Hilkhot Tum'at Met 11:5, followed by virtually all early-day authorities, rules that a \"thrown tent\" does not have the halakhic status of a tent.",
+ "How does a \"thrown tent\" differ from, for example, a flapping garment with the result that there is controversy with regard to the former's status as a tent but the latter is not regarded as a tent by any of the Tana'im of the Mishnah? And, more significantly, how does the distinction impact upon the propriety of kohanim overflying cemeteries in an airplane? Tosafot, Eruvin 31a, Haggigah 25a and Nazir 25a, as well as Rabbenu Hananel and Rashba, in their respective commentaries on the discussion in Eruvin 30b, explain that since the flapping cloak and the flying bird are \"tents\" actually flying through the air or moving over water, there is universality of opinion that, while actually in movement, a flying object does not have the characteristics of a \"tent.\" The controversy with regard to an ohel zaruk, those authorities assert, is a disagreement with regard to the status of a \"tent\" that by virtue of its nature does fly though the air, but the disagreement is confined to the status of such an object when it is at rest. R. Jose the son of R. Judah ascribes the status of a tent to such an object during the periods in which it is stationary while R. Judah maintains that the object's inherent potential for movement through the air or over water removes it from the category of a \"tent.\"",
+ "Tosafot, in their comments on the discussions in Eruvin, Haggigah and Nazir, formulate a somewhat different distinction. According to Tosafot, the distinction is between a \"tent\" cast through the air or water and a tent transported by humans or beasts of burden. According to Tosafot, the controversy is limited to a \"tent\" that itself remains stationary but is nevertheless in motion because it moves in tandem with, and secondarily to, the propelling motion of a person or an animal. Again, the controversy is whether or not an object in the process of being moved in such a fashion possesses the defining attributes of a \"tent\"; all agree, however, that an independently propelled object lacks the characteristics of a \"tent.\" Tosafot's distinction is also reflected, inter alia, in the comments of Rashi, Gittin 8b, Tosafot Yeshanim, Shabbat 17a, Tosafot Rabbenu Perez and Ritva, Eruvin 30b, as well as those of Rosh, Me'iri, and Tosafot Rabbenu Todros, Nazir 55a. The distinction is amplified by Rabbenu Tam in his Sefer ha-Yashar, no. 275, with the explanation that the connotation of \"tent\" is of an object that is stationary; a bird in flight, a garment blown through the air by the wind and a floating boat are in constant (and essentially uncontrolled) motion and hence do not \"rest\" upon the corpse or provide it with shelter as is the nature of a tent. The controversy regarding an ohel zaruk, according to Rabbenu Tam, arises from the fact that the motion of the object can be controlled at any moment simply by stopping the person or animal carrying the object. Thus, according to both Rabbenu Hananel and Tosafot, there is no question that an ohel zaruk does not have the status of a \"tent\" while it is flying through the air. Moreover, Shulḥan Arukh, Oraḥ Hayyim 409:1, rules definitively that a kohen may not enter a cemetery even in an ohel zaruk. It is for that reason that a number of authorities, including R. Moshe Feinstein, Iggerot Mosheh, Yoreh De'ah, II, no. 164, and Rabbi Eliashiv, in the letter published in Yeshurun, rule unequivocally that a kohen may not fly over a cemetery.",
+ "Parenthetically, R. Shalom Mordecai Schwadron, Da'at Torah, Oraḥ Hayyim 626:3, reports that he was asked whether it is permissible to eat or sleep in a sukkah while a dirigible hovers above the sukkah. The general rule, as formulated by the Gemara, Sukkah 21b, is that a sukkah within a \"tent,\" i.e., a sukkah over which a \"tent\" is suspended, is disqualified from use as a sukkah. The issue, then, is whether a dirigible has the status of a \"tent.\" Da'at Torah compares the dirigible to a floating boat that does not have the status of a tent even while standing immobile in the water or a billowing garment that does not have the status of a tent even when it is temporarily suspended in a stationary position. The boat regains the status of a tent only when it is immobilized by being tied to the ground and the garment similarly becomes a tent only if it is secured to the ground by means of a stone or a weight. Nevertheless, Da'at Torah notes that the dirigible is controlled by the pilot who determines whether it will move through the sky or remain stationary. Hence, according to Tosafot's distinction between the phenomena enumerated in Oholot 8:5 and an ohel zaruk, the dirigible, since its potential motion is controlled by a human being, is not comparable to the objects enumerated in Oholot 8:5 but is in the category of an ohel zaruk and, accordingly, does constitute a \"tent\" when \"at rest\" in a stationary position. For that reason Da'at Torah advises that the sukkah not be used until the dirigible moves on. Rabbi Spitzer, Kol ha-Torah, p. 178, observes that Da'at Torah's comments are, obviously, limited in their application to a dirigible, and presumably to a hovering helicopter as well, but do not apply to an airplane that cannot remain suspended at a fixed point in the sky.",
+ "It should also be pointed out that, according to Tosafot, a piloted dirigible, even if not comparable to a flapping garment or a flying bird, when in motion, would minimally have the status of an ohel zaruk which, as noted earlier, for purposes of normative Halakhah, does not have the status of a \"tent\" and hence would not prevent defilement of the kohen. However, as noted earlier, although an ohel zaruk is not a \"tent\" for purposes of interposition, it nevertheless has the status of a \"tent\" for purposes of extending defilement to everything under its cover. It may well be the case that an ohel zaruk also has the status of a \"tent\" for the purpose of disqualifying anything underneath from use as a sukkah. That would certainly seem to be the case according to the earlier-cited analysis of R. Chaim ha-Levi Soloveitchik, Hiddushei Rabbenu Hayyim ha-Levi al ha-Rambam, Hilkhot Tum'at Met 11:5. R. Chaim explains that the objects enumerated in Oholot 8:5 are not at all encompassed within the halakhic category of a \"tent\" because they lack the essential quality of a tent whereas an ohel zaruk is indeed a \"tent\" but, unlike other tents, an ohel zaruk does not function as an interposition simply because its motion renders its position transitory and, in effect, an interposition that is inherently transitory is not an interposition.",
+ "Rabbi Epstein cites an opinion of Ritva, Eruvin 30b, in dismissing the contention that an airplane does not serve as an interposition by virtue of being an ohel zaruk. Ritva maintains that the rule that an ohel zaruk does not serve as an interposition is limited to an ohel zaruk that is itself subject to defilement as a vessel or utensil but that, for example, a wooden ohel zaruk that cannot become defiled because it is not a utensil, i.e., a flat board, does serve as an interposition. Much earlier, Teshuvot Erez Ẓevi, no. 73, s.v. hetter gimmel, citing Ritva's position, suggested that a thin layer of wood placed over the floor of the airplane would serve as a interposition. Rabbi Epstein notes that the travelers flying in the passenger cabin sit atop another compartment used for stowing luggage and freight. The passenger cabin is separated from the lower compartment by a floor made of a variety of substances, the major portion of which, he asserts, cannot become defiled. Accordingly, he maintains that the floor of the passenger cabin constitutes an interposition serving to prevent defilement of the passengers. Nevertheless, as demonstrated by R. Zevi Pesach Frank, Teshuvot Har Ẓevi, Yoreh De'ah, addenda, no. 280, the majority of early-day authorities reject Ritva's position with regard to this matter. In addition, the question of whether or not items containing at least some quantity of metal are subject to defilement will be discussed subsequently.",
+ "R. Aryeh Zevi Frommer, Teshuvot Erez Ẓevi, I, no. 93, points out that even if the floor of the passenger cabin is composed of materials that cannot be defiled and hence would serve as an interposition preventing defilement from ascending to the cabin above, nevertheless, the roof of the passenger cabin, which is made of metal, protrudes over the edges of the floor. Hence, the roof of the passenger compartment serves as a tent that causes defilement to ascend through the margins of the plane to the entire passenger cabin, causing the passengers to become defiled. Teshuvot Erez Ẓevi dismisses that consideration with the argument that the defilement must first rise and enter the passenger compartment and only subsequently can it diffuse throughout the entire compartment. But since the plane travels at such high speed, argues Erez Ẓevi, there is no time for the defilement to diffuse.",
+ "Teshuvot Erez Ẓevi's argument is problematic, to say the least. He apparently treats defilement as if it is reified in a manner comparable to a physical vapor or the like. In actuality, defilement is a metaphysical concept and while, at times, the language of physics is employed to describe metaphysical phenomena, there is no reason to assume that a metaphysical phenomenon such as diffusion of defilement does not occur instantaneously. Moreover, if the analogy of defilement to a diffusing vapor or the like is to be taken literally, there is no reason to assume that the defilement is left behind by the speeding plane. Smoke released within the passenger cabin, for example, would remain trapped in the compartment and would travel in situ at the same speed as the plane. If it is assumed that sources of defilement are governed by laws analogous to those of physics, defilement should similarly be trapped and hence continue to diffuse within the speeding passenger cabin.",
+ "Rabbi Epstein also cites an opinion advanced separately by Sefat Emet, Sukkah 21a, and Tiferet Yisra'el, Oholot 8:10, to the effect that an ohel zaruk is not a \"tent\" only in the sense that it does not prevent the \"air\" of the \"land of the gentiles\" from penetrating and mixing with the \"air\" of the container but that an ohel zaruk does serve as an interposition preventing the defilement of a corpse from penetrating the \"tent.\" He further cites the opinion of R. Joseph Saul Nathanson, Sho'el u-Meshiv, Mahadura Telita'a, II, nos. 42 and 43, who asserts that objects that are designed for use in a mobile state, e.g., railroad cars, are regarded as \"stationary\" even while they are in motion. If so, it follows that an airplane does not constitute an ohel zaruk. Rabbi Yirmiyahu Menachem Cohen, Teshuvot Ve-Herim ha-Kohen, no. 61, cites Rashi's comment, Nazir 55a, explaining that an ohel zaruk does not have the status of a tent because \"since it has been thrown, it has been removed from the status of a tent and acquires the status of a vessel.\" Ve-Herim ha-Kohen suggests that, although a moving \"box, chest or cupboard\" may neither have the characteristics of a tent nor perform the functions of a tent, an airplane, even in flight, fulfills all the functions of a tent and hence should not be regarded as having the status of an ohel zaruk. It should, however, be noted that those considerations do not affect the status of the plane as an object akin to a floating ship or the like that, as explained earlier, are not classified as \"tents\" for reasons quite distinct from those governing classification as an ohel zaruk.",
+ "IV. Keli ha-Ba be-Middah—Gargantuan Vessels",
+ "Vessels and utensils are subject to defilement whereas structures or objects attached to the ground are not subject to defilement. The distinction lies in the fact that vessels and utensils are movable and can be transported from place to place whereas objects attached to the ground are immobile. Inordinately large objects may be immovable even if they are not attached to the ground. For purposes of the regulations governing defilement, objects are classified as vessels or utensils only if they are comparable to the \"sack\" described in Leviticus 11:32. According to rabbinic exegesis, the term \"sack\" serves as the paradigm for all vessels subject to defilement. The nature of a sack is that it can be transported \"[when] full as well as [when] empty.\" Accordingly, only utensils that are not too heavy to be transported even when full are susceptible to defilement; gargantuan vessels that are not movable when full are treated as though they are rooted to the ground even when they are empty and hence cannot become defiled. The Mishnah, Oholot 8:3, declares that any utensil that holds forty se'ah is, by definition, too large to become defiled. The Mishnah further declares that since such utensils cannot become defiled they can also serve as an interposition preventing defilement from ascending ad coelum. Such an oversized utensil is termed a keli ha-ba be-middah. The dimensions of an airplane certainly seem to place it within that category.",
+ "Nevertheless, an airplane does not qualify as a keli ha-ba be-middah for a number of reasons. In effect, an airplane is encompassed within the ambit of each of a number of exceptions to the rule of keli ha-ba be-middah:",
+ "1. A round or oval vessel is subject to defilement regardless of its size since there is nothing to prevent it from moving to and fro. Although the airplane itself, despite its oval shape, does not roll from place to place, it rests on wheels which render it movable. Rabbis Munk and Lombard, Yeshurun, X, 560, suggest that the presence of wheels may negate the plane's status as a keli ha-ba be-middah.",
+ "2. As noted by Tosafot, Shabbat 84a, s.v. u-le-Hananyah, the Mishnah, Kelim 15:1, declares that, regardless of size, utensils that are generally moved from place to place in conjunction with their designed use do not fall within the category of a keli ha-ba be-middah. Hazon Ish, Yoreh De'ah 211:8, however, inclines to the view that this provision is limited to utensils comparable to a \"sack\" in that such artifacts are designed to be transported by humans or animals but does not extend to objects such as automobiles or trains that cannot be \"carried\" from place to place.",
+ "3. Tosafot, Shabbat 44b, s.v. mukhani, and Menaḥot 31a, s.v. shiddah, demonstrate that the category of keli ha-ba be-middah does not apply to a utensil designed to be used for sitting or reclining (midras). Thus, an airplane designed to transport passengers may be regarded as a utensil designed primarily for seating and hence cannot serve as an interposition.",
+ "4. Most significantly, the rule regarding keli ha-ba be-middah applies only to implements made of wood or leather and to articles of clothing that are enumerated together with the \"sack\" in Leviticus 11:32 as subject to defilement. However, metal utensils that are not mentioned in that verse are susceptible to defilement regardless of size. The definition of \"metal\" for this purpose will be addressed in a subsequent section.",
+ "V. Space of a Tefaḥ within the Grave",
+ "Unlike the practice in most other countries in which the corpse is buried in a coffin and earth is shoveled directly upon the coffin, in Israel the body is laid to rest directly upon the earth. Layers of bricks or cinder blocks are placed in a rectangular shape around the body and are used to support a row of cement blocks or boards that is placed over the corpse. The result is that the earth shoveled into the grave does not rest directly upon the corpse; instead, an empty space is created between the corpse and the ceiling of the grave in which it reposes.",
+ "There is a significant controversy with regard to whether a corpse defiles ad coelum insofar as biblical law is concerned in situations in which there is an open space of a cubic tefaḥ or, more precisely, the space of at least a tefaḥ in length, width and height, between the corpse and the roof of the coffin or tomb in which it is found. There are various opinions regarding the measurement of a tefaḥ ranging from 7.6 to 10 centimeters. The most significant of those opinions are the views of R. Abraham Chaim Noe who asserts that a tefaḥ is eight centimeters in length and of Hazon Ish who maintains that a tefaḥ equals either 9.67 or ten centimeters.",
+ "The Gemara, Berakhot 19b, reports that R. Eleazar the son of Zadok, who was a kohen, and his companions were wont to jump over coffins in order to enter the presence of monarchs. It was permissible for them to do so because, in the majority of cases, the corpse reposing in the coffin was surrounded by a poteaḥ tefaḥ, i.e., an \"opening of a tefaḥ.\" Although rabbinic legislation decrees defilement even with regard to a coffin having a poteaḥ tefaḥ, that decree is suspended for purposes of fulfilling a mizvah or in order to pay honor to a monarch. Rashi, Hullin 71a and Nazir 53b, as well as Ra'avad, Hilkhot Tum'at Met 7:4, maintain that this is the case with regard to every coffin in which there is a poteaḥ tefaḥ, viz., in terms of biblical law such a coffin defiles only by means of tactile contact but does not defile ad coelum. However, Rambam, Hilkhot Tum'at Met 7:4; Tosafot, Berakhot 19b, Shabbat 146b and Bava Batra 100b; Teshuvot ha-Rosh, klal 20, no. 1, and Ramban in his Torat ha-Adam as well as in his commentary to Bava Batra 101a, assert that this is the case only with regard to a coffin open on one side or in the case of a body within an open crypt but that a completely sealed coffin defiles ad coelum by virtue of biblical law.",
+ "Although Tur Shulḥan Arukh and Bet Yosef, Yoreh De'ah 372, as well as Taz, Yoreh De'ah 372:1, follow the position of early-day authorities who maintain that the rule regarding an open space of a tefaḥ applies only in the case of a body within a coffin open on one side or in the case of a body within an open crypt but is of no avail in preventing defilement in the case of a sealed tomb, Arukh ha-Shulḥan, Yoreh De'ah 372:3, cites the view of the authorities who maintain that an \"opening of a tefaḥ\" (poteaḥ tefaḥ) serves to prevent defilement even above a sealed grave. Thus, it would appear that, according to this view, if it can be established that the space between the corpse and the cinder blocks placed above the corpse is of the requisite size, a kohen might traverse the grave without becoming defiled according to the provisions of biblical law. In actuality, however, that consideration will not serve to dispel the problem because of a number of factors:",
+ "1. Tur Shulḥan Arukh and Bet Yosef, Yoreh De'ah 372, rule unequivocally in accordance with the opinion that the consideration of poteaḥ tefaḥ does not pertain to a sealed grave. That is also the position recorded by Arukh ha-Shulḥan he-Atid, Hilkhot Tum'at Met 7:31.",
+ "2. As spelled out by Tur Shulḥan Arukh, Yoreh De'ah 372, even Rashi, Sukkah 21a, and Ra'avad, Hilkhot Tum'at Met 7:4, who aver that the rule of poteaḥ tefaḥ applies to a sealed grave as well, nevertheless concede that in such cases defilement exists by virtue of rabbinic decree. According to those authorities, the rabbinic decree is suspended only for purposes of fulfilling a mizvah that could not otherwise be fulfilled.",
+ "3. Citing Kesef Mishneh, Hilkhot Tum'at Met 12:6, Kappei Aharon asserts that, even according to Rambam, who maintains that poteaḥ tefaḥ applies only in the case of a coffin open on one side, the presence of a poteaḥ tefaḥ prevents the ascent of defilement only in the case of an unburied coffin \"lying on the face of the field\" but is of no avail with regard to a corpse already interred.",
+ "4. Rabbis Munk and Lombard, Yeshurun, X, 563, note 33, suggest that, although presence of the requisite empty space may negate defilement engendered by the corpse, nevertheless, the bricks or cinder blocks are themselves a source of defilement and, as is quite evident, there is no empty space above the bricks or concrete blocks to prevent such defilement from affecting an object or person above the grave. Both the verse \"And whosoever in the open field touches one that is slain by a sword or a bone of a man or a grave shall be unclean seven days\" (Numbers 19:16) and the verse \"and a clean person … shall sprinkle it upon the tent … and upon him that touched the bone or the slain or the dead or the grave\" (Numbers 19:18) posit defilement for contact with a grave no less so than for contact with a corpse. In their recently published monograph dealing with the laws of priestly defilement, Tohorat ha-Kohanim (Jerusalem, 5762), pp. 91f., Rabbis Munk and Lombard, citing the comments of Sifri, show that the \"grave\" specified in Numbers 19:16 and 19:18 is not the earth in which the corpse is buried but a man-made tomb or structure in which the body is placed within the ground. Accordingly, the cinder blocks or bricks themselves constitute a tomb or \"grave\" which, in turn, causes defilement independently from the corpse.",
+ "Nevertheless, the same authors, Tohorat ha-Kohanim, pp. 92f., question whether the defilement engendered by a tomb is indeed an independent source of defilement, and hence serves to defile ad coelum unless there is a poteaḥ tefaḥ above the tomb itself, or whether a tomb or \"grave\" defiles only by virtue of the corpse contained within the tomb, with the result that the presence of a poteaḥ tefaḥ between the corpse and the \"grave\" serves also to obviate defilement caused by the grave.",
+ "5. Some communities, including some sectors of the Yemenite community, customarily fill the space between the body and the cinder blocks with sand, thereby effectively eliminating any possibility that there may be an empty space of a poteaḥ tefaḥ within the grave. Thus, it is highly likely that there are indeed graves within the confines of the Holon cemetery in which there is no poteaḥ tefaḥ.",
+ "6. Examination of graves that have been opened for one reason or another reveals that the cinder blocks customarily utilized for placement around and above the body are not very durable and tend to crumble with the passage of time with the inevitable result that the intervening space rapidly becomes filled with earth. When that occurs there is no longer a poteaḥ tefaḥ within the grave.",
+ "7. The Mishnah, Oholot 2:4, declares that a \"gollel\" and its supporting structure known as a \"dofek\" cause defilement in the same manner as a corpse. Among early-day authorities there are three views with regard to the definition of a \"gollel.\" 1) The Arukh, erekh gollel, maintains that a gollel is a stone used to seal an open grave. 2) Rashi, Shabbat 152b, Ketubot 4b and Hullin 72a, maintains that the cover of a coffin is also deemed to be a gollel. Ramban, in his Torat ha-Adam, qualifies Rashi's view with the assertion that the cover of a coffin acquires the status of a gollel only upon being secured to the coffin with nails or pegs. 3) Rabbenu Tam, cited by Tosafot, Berakhot 19b, Shabbat 152b, Ketubot 4b and Sanhedrin 47b, defines a gollel as a tombstone placed over the grave. Taz, Yoreh De'ah 369:2, rules that, in consideration of the opinion of Rabbenu Tam, a kohen must regard a tombstone as a source of defilement.",
+ "It appears that, according to Rabbenu Tam, the presence of a tombstone covering a grave would be sufficient to cause the defilement of a kohen flying over the cemetery even if it might be established that each of the graves contains an empty space possessing the dimensions of a poteaḥ tefaḥ. Nevertheless, Rabbis Munk and Lombard, Yeshurun, X, 563, note 29, suggest that, even according to Rabbenu Tam, only a tombstone erected at the time of interment is a source of defilement. Indeed, the gollel, and hence its definitions, is significant not only with regard to the issue of defilement but also because mourning does not begin until the time of \"sealing of the gollel\" (or better, \"sealing by means of the gollel\"), i.e., for Rabbenu Tam, the placing of a tombstone upon the grave. It is counterintuitive to assume that commencement of mourning is to be delayed until erection of a tombstone months after interment. Rather, the Sages must have referred to an act that signifies completion of the burial ritual. Accordingly, argue Rabbis Munk and Lombard, tombstones erected long after burial, as is the custom in our day, do not fall within the connotation of the term \"gollel\" either for purposes of the \"sealing of the gollel\" signaling the advent of the mourning period or, as employed by the Mishnah, Oholot 2:4, in conjunction with the laws of defilement.",
+ "It should also be noted that Rabbi Spitzer, Kol ha-Torah, no. 52, p. 176, cites Tosafot, Sukkah 23a, as apparently maintaining that a gollel cannot serve as a source of defilement unless the grave that it covers is also a source of defilement. Thus, if the grave does not generate defilement because of the presence of a poteaḥ tefaḥ, its stone covering, according to the understanding of Tosafot, could not be an independent source of defilement.",
+ "However, according to Rashi, who maintains that the gollel is to be defined as the cover of the coffin, it would seem that the concrete blocks or wooden boards placed over the body would also have that status, and hence, as Rabbi Epstein, Teḥumin, XXII, 396, appears to indicate, according to Rashi, that covering would serve as a source of defilement even if beneath the cover there is an empty space of a poteaḥ tefaḥ.",
+ "There is indeed a minority view that does not regard the presence of a gollel as constituting a problem for a kohen. Not every form of defilement is forbidden to a kohen. Thus, a kohen is permitted to defile himself by coming into contact with an implement, including a metal sword, that has been defiled by a corpse. However, the general consensus is that a kohen may not defile himself by coming into contact with a gollel. Nevertheless, in seeking permissive views that would justify the airplane journeys that are the subject of this discussion, Rabbi Epstein cites a variant opinion recorded by Tur Shulḥan Arukh 369 that maintains that a kohen is not prohibited from defiling himself by means of a gollel just as he is not forbidden to defile himself by contact with utensils that have become defiled by a corpse.",
+ "R. Judah Gershuni, Kol Ẓofayikh (Jerusalem, 5740), pp. 428-430, cites the explanation of R. Gershon Henach of Radzin, Sidrei Tohorot, pp. 77b-78a, of the statement of the Mishnah, Shabbat 83b, declaring that a ship cannot become defiled. Citing Tosafot Rid, Sidrei Tohorot asserts that the rationale underlying that rule is that a ship is not considered to be a \"vessel\" because its walls are designed primarily to keep the water at bay rather than to provide a container for that which is within; hence, a ship lacks the essential property of a utensil, i.e., it is not a container.",
+ "Sidrei Tohorot expresses some doubt with regard to the applicability of that consideration to a boat made of metal since a metal object is susceptible to defilement even though it is not a container. Rabbi Gershuni applies the same considerations to airplanes in arguing that airplanes are similarly designed to keep out air but, since they are constructed from metal, their status according to Sidrei Tohorot remains unclear. However, assuming that Sidrei Tohorot's analysis of the status of a ship is correct, it is hardly cogent with regard to airplanes. The walls of a plane are not designed to keep air out; they are clearly designed to keep passengers inside, to protect them from the elements and to prevent them from falling to their deaths.",
+ "R. Moshe Feinstein, Iggerot Mosheh, Yoreh De'ah, II, no. 164, expresses doubt with regard to whether an airplane is subject to defilement despite the fact that it is made of metal. Iggerot Mosheh suggests that \"perhaps\" only the six metals specified in Numbers 31:23, viz., gold, silver, copper, iron, tin and lead, have the halakhic status of metal. Those materials, together with mercury which is actually a liquid, constitute the seven metals of antiquity. Arsenic was discovered in the thirteenth century by Albertus Magnus and a number of other metals, including zinc, were discovered only subsequently. However, most other metals were unknown until relatively modern times. Iggerot Mosheh suggests that only the enumerated metals are susceptible to defilement and that it is for that reason that they are named individually in Numbers 31:23 rather than collectively identified as metals. Iggerot Mosheh points out that, biblically, glass is not susceptible to defilement despite the fact that it is comparable to metal in the sense that it is melted, rather than destroyed, by fire. Accordingly, Iggerot Mosheh suggests that since airplanes are composed primarily of metals discovered during subsequent periods of history, i.e., aluminum and titanium, a plane cannot become defiled and hence the airplane itself may serve as an interposition preventing defilement from entering the passenger section. Although the material used for that purpose in the construction of airplanes is a mixture of one of the metals of antiquity and subsequently discovered metals, the halakhic identity of the entire mixture, asserts Iggerot Mosheh, is that of its major component. The halakhic status of modern metals will be more fully discussed in a subsequent section.",
+ "VI. Ẓamid Patil—A Sealed Vessel",
+ "1. The Utensil",
+ "With regard to the defilement engendered by a corpse, Numbers 19:14 specifies that \"… every [person] who comes into the tent shall be unclean seven days.\" The immediately following verse, Numbers 19:15, spells out the circumstances in which vessels and utensils are defiled: \"And every open vessel which has no covering close-bound upon it is unclean.\" The clear inference is that the converse, i.e., a closed vessel that is tightly sealed, does not become defiled. The Mishnah, Kelim 10:1, declares that not only is such a utensil not subject to defilement but the utensil also preserves anything that may be contained within its walls from becoming defiled. Rabbinic tradition teaches that biblical law limits the capacity of a sealed utensil to preserve its contents from defilement to vessels such as pottery and earthenware that are not subject to defilement by tactile contact with the exterior of the vessel.",
+ "However, rabbinic edicts did legislate defilement in many situations in which there is no biblically mandated defilement. The concern was to prevent confusion as well as to assure avoidance of objects that cause defilement. Accordingly, rabbinic legislation decreed defilement of vessels or utensils enclosed within such sealed containers. Nevertheless, rabbinic law did not interfere with the protection such vessels offer to food and beverages because, once defiled, foodstuffs cannot be purified. Concern for the resultant economic burden caused the Sages to refrain from decreeing defilement of foodstuffs contained within a sealed vessel. For an entirely different reason no defilement was decreed for a human being who might be sealed within such a utensil. Rambam, Hilkhot Tum'at Met 23:2, explains that the exclusion of human beings from the decree is based upon the consideration that the phenomenon of a person sealed within a closed vessel is highly unusual and rabbinic edicts are generally not promulgated with regard to regulation of events that occur only rarely.",
+ "In order to \"rescue\" its contents from defilement, a utensil must satisfy three conditions: 1) The object must have the halakhic status of a utensil (keli) designed for use as a container; 2) the utensil must be made of a material that cannot be defiled by contact of the exterior of the utensil with a defiled object, e.g., earthenware or pottery; and 3) the utensil must be covered and sealed.",
+ "Thus, if an airplane has the status of a closed and sealed vessel (zamid patil) a kohen might fly in the passenger cabin without fear of defilement. The first issue that presents itself is whether an airplane has the status of a utensil. As is evident from the statement of the Mishnah, Kelim 2:4, a utensil that incorporates openings in its structure but is nevertheless designed for use in that fashion has the status of a utensil. According to the interpretation of Rabbenu Shimshon, the Mishnah, Kelim 2:5, makes specific reference to a utensil constructed with openings in its base. Nevertheless, large holes or openings serve to nullify the status of a utensil as a keli. As recorded in numerous instances in Kelim, the minimum size of an opening that serves to nullify the status of a utensil as a keli varies in a manner commensurate with the designated use of the utensil. Airplanes contain numerous doors and apertures of rather large proportions. As a result an airplane may not have the status of a keli. Nevertheless, as Rabbis Halberstadt and Goldmintz, Kanfei Yonah, p. 22, cogently observe, since such doors in airplanes are entirely consistent with the intended use of the airplane, it is quite possible that the airplane retains the status of a keli.",
+ "a) The Six Metals",
+ "An even more crucial issue is whether the airplane is constructed of material that is susceptible to defilement. According to reports in the rabbinic literature, the composition of the material of which airplanes are constructed is 75 percent aluminum, some titanium, and approximately 15-25 percent steel and copper. Tiferet Yisra'el, in his introduction to Seder Tohorot, Yevakesh Da'at, sec. 44, cites a statement of R. Elijah of Vilna, commonly known as the Gra, in the latter's Eliyahu Rabbah, in which he declares that there are six species of metal: gold, silver, copper, iron, tin and lead, i.e., the species enumerated in Numbers 31:22. Those metals, together with mercury, which at room temperature is actually a liquid, constitute the seven metals known in antiquity. Tiferet Yisra'el, however, takes note of the fact that in the modern period metallurgists have succeeded in identifying and refining additional metals. Accordingly, he asserts that newly discovered metals must either be regarded as subspecies of the metals enumerated in Scripture or that the list is not intended to be exhaustive.",
+ "Since each of the modern metals is a unique element in the element table and possesses an idiosyncratic molecular structure, it is difficult to accept the contention that those metals can be identified as variants of one of the metals of antiquity. It is indeed the case that the Gemara, Yoma 44b, describes no less than seven types of gold. However, the diversity of the multiple forms of gold known in antiquity reflects only the degree of purity of the gold and the various alloys with which it is found in its natural state. Modern metals contain no admixture of any of the metals of antiquity.",
+ "Tiferet Yisra'el's alternative suggestion, viz., that the list presented in Numbers 31:22 is paradigmatic rather than exhaustive, is more plausible but gives rise to the further problems of determining the halakhic definition of \"metal.\" Tiferet Yisra'el himself defines metal as any substance that can be hammered into thin sheets, i.e., the halakhic category of \"metal\" includes all malleable and ductile substances. However, that definition seems to be contradicted by Rashi, Rosh ha-Shanah 19b, s.v. ve-ḥakhamin, who explains that, biblically, glass is not subject to defilement in the manner of metal utensils because \"the only metal utensils subject to biblical defilement are those enumerated in the [biblical] section [dealing with the utensils seized from the Midianites].\" Since glass is certainly not ductile, according to Tiferet Yisra'el, no further explanation for why it is not subject to defilement as a metal should be necessary and hence Rashi's comment would be rendered superfluous. Moreover, Rashi seems to imply that the list of metals enumerated in Numbers 31:22 is exhaustive. It is difficult to read Rashi's comment (as Rabbis Halberstadt and Goldmintz, Kanfei Yonah, p. 23, apparently do) as designed simply to explain that glass is not comparable to the materials named in Scripture but that Rashi leaves it to the reader to discern that glass is not comparable because it is not malleable.",
+ "In his earlier-cited responsum, Iggerot Mosheh, Yoreh De'ah, II, no. 164, seems to define the halakhic concept of metal as encompassing any substance that melts but is not destroyed when exposed to heat. Indeed the Hebrew term for metal, viz., \"matekhet,\" is derived from the verb meaning \"to melt.\" If so, glass similarly possesses the characteristics of a metal and, presumably, Rashi found it necessary to explain why glass is not subject to defilement as a metal. If that is the case, Rashi must be understood as stating that only those materials explicitly enumerated by Scripture are subject to defilement as metals.",
+ "Iggerot Mosheh further argues that one of the hermeneutic principles of biblical exegesis is that a single example is designed to establish a paradigm but two or more examples (shnei ketuvim ha-ba'im ke-eḥad) of an identical principle serve to negate the drawing of a paradigm. The logic underlying that principle is that, if a paradigm were intended, the second example would be redundant, whereas if no paradigm is intended each instantiation must be presented individually. Thus, suggests Iggerot Mosheh, enumeration of six separate metals would have been superfluous if the rule was intended to apply to all metals. Hence, he concludes, the list must be regarded as exhaustive and designed to exclude any modern metal that \"it was the will of the Holy One, blessed be He, that it be revealed in these latter generations.\" Moreover, asserts Iggerot Mosheh, the laws of defilement cannot be applied, mutatis mutandis, to a novel species \"for all the laws of defilement are a decree of Scripture,\" i.e., the regulations pertaining to defilement are arational in the sense that they are not predicated upon a discernible logical principle. Nevertheless, Iggerot Mosheh concludes that the matter requires further reflection. In a responsum appended to Tevilat Kelim, pp. 243f., and later published in his Emet le-Ya'akov, Shulḥan Arukh, Yoreh De'ah 120:1, R. Jacob Kamenetsky cites Tiferet Yisra'el's position with regard to modern metals and, advancing arguments identical to those of Iggerot Mosheh, strongly disagrees with Tiferet Yisra'el's position.",
+ "As has been noted, the major components of the material from which airplanes are constructed are modern metals, primarily aluminum, which was first produced by Hans Christian Østed in 1825, and titanium that was first isolated by M. H. Klaproth in 1797. Although both steel and copper are present as alloys in the material from which airplanes are manufactured, Iggerot Mosheh cites Kelim 11:4 in asserting that the halakhic status of the plane is dependent upon the identity of the metal that represents the major portion of the compound from which the plane is constructed. It thus follows that, according to Iggerot Mosheh's tentative conclusion, an airplane is not susceptible to defilement as a metal and hence, if the other requisite conditions are satisfied, an airplane can shield passengers from defilement. That conclusion stands in sharp contradiction to the conclusion that must be reached on the basis of the position of Tiferet Yisra'el. If, as Tiferet Yisra'el maintains, modern metals also have a halakhic status identical to that of the biblically enumerated metals, it follows that an airplane is subject to defilement and accordingly, cannot protect passengers from defilement.",
+ "b) Natar",
+ "There is indeed support for the position of Tiferet Yisra'el in a comment of Tosafot, Avodah Zarah 33b, as that comment is understood by Maharsha, ad locum. The Gemara speaks of utensils made of an earthen substance known as \"natar\" and states simply that utensils made of that material cannot be kashered because, as is the case with pottery, earthen-ware is porous and hence non-kosher food absorbed within the walls of the utensil cannot be purged in the usual manner. Natar is described as an earth-like substance and, quite understandably, utensils fashioned from that material have the status of earthenware and cannot be kashered. However, Tosafot, as understood by Maharsha, assert that utensils fashioned from natar are subject to defilement in the manner of utensils manufactured from metal. Since natar is not one of the six biblically enumerated metals, it is thus readily apparent that Tosafot did not regard the list of metals as exhaustive and, in effect, Tosafot subscribe to the view later explicitly formulated by Tiferet Yisra'el, viz., that all metals, including those discovered in the modern period, are subject to defilement. Thus, the controversy between Tiferet Yisra'el and later authorities, and hence the status of aluminum utensils, is the subject of an earlier dispute between Rashi and Tosafot.",
+ "However, an additional consideration emerges from Rabbi Feinstein's further analysis of the nature of aluminum in Iggerot Mosheh, Yoreh De'ah, III, no. 32. Although Iggerot Mosheh does not deem aluminum to be one of the biblically defined metals and finds no evidence of a rabbinic decree providing for defilement of aluminum implements as rabbinically defined metal utensils, he points to the fact that glass utensils, although they are not made of metal, are nevertheless subject to the mode of defilement associated with pottery. Glass is similar to ḥeres, or pottery, in that it, too, is fashioned from sand and fired in a kiln; hence it is rabbinically subject to the same type of defilement that is biblically attendant upon pottery. Accordingly, argues Iggerot Mosheh, aluminum, which is also produced from an earth-like substance, is subject to the same type of rabbinic defilement that is attendant upon glass utensils. To be sure, glass, and hence aluminum, have the status of ḥeres and, accordingly, are not subject to defilement from any object that comes into contact with the exterior of the vessel. But such utensils are nevertheless subject to defilement if a defiled object enters the internal air space of the vessel. Once that has occurred (as Rabbi Spitzer, Kol ha-Torah, no. 52, p. 184, notes), the vessel, even if covered by a zamid patil, can no longer preserve any object within the vessel from defilement. Only a tightly sealed vessel that has not been defiled can preserve its contents from defilement; once the vessel has become defiled, the fact that it is sealed by a zamid patil is of no relevance. The practical effect of that observation is that if the plane has harbored a dead body at any time it can no longer preserve passengers from defilement even if the plane has the characteristics of a zamid patil.",
+ "c) Immersion of Aluminum Vessels Acquired from a Non-Jew",
+ "It is noteworthy that the biblical locus of the controversy regarding the status of modern metals is not a passage containing a provision directly pertaining to defilement associated with contact with a dead person but a verse that occurs in the context of booty acquired in the course of the war against the people of Midian. The talmudic interpretation of Numbers 31:23, \"and all that cannot go through the fire you shall cause to go through the water,\" is that the verse establishes a requirement for immersing utensils acquired from a non-Jew in a mikveh. That requirement is limited to implements made of materials to which reference is made, i.e., all utensils susceptible to defilement. Thus the question of the status of modern metals such as aluminum is a matter of concern not only for kohanim contemplating plane trips but is of significance for any Jew who purchases aluminum eating or cooking utensils from a non-Jewish purveyor. It is therefore not surprising that most of the contemporary rabbinic discussions of the status of modern-day metals occur in that context.",
+ "Indeed, in a discussion paralleling his analysis of the status of airplanes, Iggerot Mosheh, Yoreh De'ah, III, no. 22, vigorously argues that, according to biblical law, aluminum utensils acquired from a non-Jew do not require immersion in a mikveh because aluminum is not one of the metals enumerated in Scripture but nevertheless suggests that immersion is required by virtue of rabbinic decree for the same reason that rabbinic law requires immersion of glass utensils, viz., because glass utensils can be melted down and refashioned in a manner similar to metal. A British authority, R. Chanoch Padwa, Heshev ha-Efod, III, no. 70, reports that it had been his intention to rule that aluminum utensils are exempt from immersion but that the Tchebiner Rav, R. Dov Berish Weidenfeld, refused to agree and he therefore abandoned the issue. R. Zevi Cohen, Tevilat Kelim (Jerusalem, 5738), chap. 11, note 113, reports that R. Samuel Woszner also ruled that aluminum utensils require immersion. Similarly, R. Ya'akov Yitzchak Weisz, Teshuvot Minḥat Yizḥak, V, no. 9, analyzes the status of disposable aluminum utensils but fails even to suggest that aluminum may not have the halakhic status of a \"metal.\"",
+ "Although, as cited earlier, Rabbi Jacob Kamenetsky asserts that aluminum is not susceptible to defilement, he nevertheless asserts that aluminum utensils acquired from a non-Jew require immersion. Rabbi Kamenetsky points to a tentative statement by the Gemara, Avodah Zarah 75b, that would have required immersion of certain earthen vessels even though such vessels are clearly not subject to defilement. Rabbi Kamenetsky suggests that the immersion of utensils acquired from a non-Jew is not at all associated with concepts of defilement but rather is comparable to the immersion of the High Priest on Yom Kippur each time he changed vestments. He also notes that glass utensils acquired from a non-Jew are subject to immersion by virtue of rabbinic decree even though they have the status of pottery which, when defiled, cannot be purified by immersion. However, rabbinic legislation requiring immersion of a utensil that is not subject to purification in that manner insofar as biblical law is concerned strongly suggests that such immersion is designed for a purpose other than the purging of defilement.",
+ "Advancing an argument similar to that of Iggerot Mosheh, Rabbi Kamenetsky further suggests, albeit tentatively, that even if the rabbinic requirement of immersion of glass utensils is indicative of a rabbinic decree legislating a unique form of rabbinic defilement that is subject to purification by immersion, aluminum utensils purchased from a non-Jew may require immersion for the same reason. The Sages decreed that glass utensils require immersion because they are comparable to, and hence readily confused with, metal utensils in that, like metal, glass becomes molten when subjected to high temperature. Hence, like metal, when a glass utensil is broken it can be melted and refashioned. The Sages feared that allowing use of unimmersed glass utensils would lead to the erroneous assumption that metal utensils, because of their similarity to glass, also do not require immersion. However, Rabbi Kamenetsky expresses doubt with regard to whether or not the same rabbinic decree encompasses aluminum utensils as well. Aluminum can certainly be melted down and hence is even more likely than glass to be confused with other metals. On the other hand, the rabbinic decree may be limited to utensils such as glass which, since it is made from sand and is comparable to pottery, is susceptible to certain forms of defilement by virtue of rabbinic decree, but the decree may not include modern metals which, in Rabbi Kamenetsky's opinion, cannot become defiled under any circumstances.",
+ "A similar point was made much earlier by R. David Zevi Hoffmann, Melammed le-Ho'il, Yoreh De'ah, no. 49, with regard to utensils made of bone. In his day a process was developed that made it possible to melt bone so that it might be fashioned into implements. In addressing the question of whether such implements have the halakhic status of glass utensils, Melammed le-Ho'il comments, \"since glass utensils [require immersion only by virtue of] rabbinic decree, perhaps the [Sages] legislated only with regard to glass utensils but not with regard to other utensils even though they can be melted down.\" More recently, citing Magen Avraham and Maḥazit ha-Shekel, Oraḥ Hayyim 301:10, R. Jacob Breisch, Teshuvot Helkat Ya'akov, II, no. 163, and R. Ovadiah Yosef, Yabi'a Omer, IV, Yoreh De'ah, no. 8, both assert that rabbinic decrees encompass only matters that were known to the Sages at the time of their decree. The basic notion reflected in the assertions of Helkat Ya'akov and Yabi'a Omer, i.e., that rabbinic legislation is subject to interpretation in accordance with a doctrine of \"strict construction,\" recurs frequently in halakhic literature. Hence, even if the rationale underlying the rabbinic decree is relevant to novel phenomena or materials of our age, we lack the power or the mechanism to extend such decrees. It is for this reason that those authorities maintain that plastic utensils do not require immersion.",
+ "R. Chaim Greineman, Hiddushim u-Bi'urim, Kelim 2:3, similarly rules that plastic utensils do not require immersion for the reason cited but adds an additional consideration as well. Rabbi Greineman argues that the rabbinic decree regarding immersion of glass vessels was based not simply on the fact that they are similar to metal utensils in that they can be repaired by means of melting and refashioning but also upon the consideration that glass utensils are objects of value, as is the case with regard to metal utensils. Plastic utensils, he argues, do not have the same intrinsic value as utensils made of glass and hence are not included within the parameters of the rabbinic decree. That consideration may perhaps apply to disposable aluminum utensils as well. There are, however, some few authorities who regard the status of plastic utensils to be a matter of unresolved doubt and therefore require immersion of such vessels, albeit without a blessing.",
+ "2. The Seal",
+ "A vessel made of ḥeres becomes defiled only from its interior. Hence, defilement by virtue of occupying the same \"tent\" as a corpse can occur only if the vessel has an opening. Accordingly, the vessel does not become defiled—and hence \"rescues\" its contents from defilement—only if its opening is both covered and tightly sealed with a sealant. The Mishnah, Kelim 10:2, lists materials that serve as sealants as well as a number of materials that are explicitly excluded. The doors of an airplane are indeed tightly closed but are not sealed with a sealant; hence the airplane does not appear to qualify as a zamid patil.",
+ "However, Maharam of Rothenberg, in his commentary on Oholot 9:1, cited by Tosafot Yom Tov, Kelim 10:3, asserts that a sealant is required only if closure is effected by means of a \"hard\" material inserted to fill the opening. Since a hard material can never be tailored completely and perfectly to plug an opening in another hard material, a sealant is necessary to fill the remaining gaps. However, maintains Maharam of Rothenberg, if a soft, pliable material is molded into a tight plug, an additional sealant is unnecessary.",
+ "Closed airplane doors are certainly airtight. That is assured by means of strips of rubber or synthetic material attached to the door in the form of a lip or gasket in a manner such that, when closed, the gasket overlaps the door and the adjacent wall. Rabbis Halberstadt and Goldmintz, Kanfei Yonah, p. 26, are prepared to categorize the materials used in such a manner as \"soft.\" Although that categorization is probably inaccurate, in practice, the gasket certainly does create a perfect seal and is the functional equivalent of a \"soft\" material. Nevertheless, they point out that the gasket does not actually fill the opening; rather, the gasket totally impedes the flow of air by virtue of its location behind the opening. They cogently question whether this satisfies the requirement of zamid patil. Moreover, Rabbi Spitzer, Kol ha-Torah, no. 52, p. 184, argues that, absent the hinges and bolt securing the door, the door would not stay in place. Since the door itself is not secure in the aperture, argues Rabbi Spitzer, such an arrangement does not serve as a zamid patil.",
+ "The authors of Kanfei Yonah also point out that the bolts and hinges securing the door are made of metal. Since they are designed to support the door, they may constitute a ma'amid, i.e., a supporting or stabilizing entity which lends its halakhic status to the supported or stabilized object. As a result the door itself would have the status of a metal implement that is susceptible to defilement. Items that are themselves subject to defilement cannot serve as a plug to generate a zamid patil.",
+ "Rabbi Spitzer, Kol ha-Torah, no. 52, p. 183, observes that the purpose of the seal is not simply to prevent air from flowing into the interior of the utensil but to \"nullify\" or destroy the entranceway into the utensil and thereby create a halakhically seamless, impenetrable vessel. That is accomplished only if the seal that is in place must be broken in order to gain entrance to the vessel. R. Samuel Strashun, Reshash, Kelim 10:3, declares that a cork does not serve as a zamid patil. His rationale is that, since a bottle is customarily corked and uncorked, the cork cannot be regarded as \"nullifying\" the opening. That principle is also reflected in the ruling of Ra'avad, Hilkhot Tum'at Met 22:9, to the effect that a tight fitting \"cap\" does not serve as a zamid patil. Rabbi Spitzer understands the comment of Maharam of Rothenberg regarding a soft plug as limited to a plug that is not designed to be removed, i.e., a soft material used to plug a hole, but not to a stopper or the like designed to temporarily block the entranceway to the interior of the vessel.",
+ "This observation is significant for another reason as well. Rabbis Halbertstadt and Goldmintz, Kanfei Yonah, p. 26, note 142 and Teḥumin, XXII, 508, observe that, above a certain height, some airplane doors would be held in place and firmly sealed by virtue of air pressure alone. However, if it is acknowledged that a sealant is necessary not simply to render the vessel airtight but to nullify the opening that factor is not at all germane.",
+ "VII. Ma'amid-A Supporting Agent",
+ "Quite apart from the questionable status of an airplane as a metal utensil because it is made of aluminum, a further complication arises from the fact that the material from which the plane is made is an alloy containing 15-25 percent steel. Despite the general rule that, as noted by Iggerot Mosheh, the halakhic identity of a substance is determined by its major component, that may not be the case with regard to a material containing an alloy designed to make the material hard enough to be fashioned into a durable utensil. Rabbis Halberstadt and Goldmintz, Kanfei Yonah, p. 25, and Teḥumin, XXII, 505, suggest that when a substance designed to strengthen a utensil or to prevent it from disintegrating is present, the identity of the utensil is determined by the identity of that substance. A substance performing such functions is known as a ma'amid. The same point is made by Rabbis Munk and Lombard, Yeshurun, X, 560, note 22.",
+ "Moreover, airplanes are constructed and held together by means of nuts, bolts, screws, rivets, beams, braces and the like that are fashioned from unalloyed steel. Rabbis Halberstadt and Goldmintz, Kanfei Yonah, p. 25, and Rabbi Spitzer, Kol ha-Torah, no. 52, p. 182, suggest that those components serve to endow the entire airplane with their status as objects subject to defilement. They suggest that since those objects, which are made of pure metal, serve to hold the plane together their status is that of a ma'amid described by the Gemara, Shabbat 60a. The Sages rule that the material out of which the portion of a utensil that holds the utensil together, e.g., the sides of a ladder into which rungs are inserted or the base of a ring into which a signet is affixed, determines the halakhic status of the entire utensil. Applying that principle, they contend that the entire airplane is subject to defilement because of the presence of essential metal components.",
+ "Although not cited by those scholars, a quite similar issue is discussed by Taz, Yoreh De'ah 371:3. Taz reports an incident involving a corpse lying in a building or room annexed to a synagogue with a connection in the form of a window opening to the women's gallery. An unnamed rabbinic authority ruled that the curtain attached to the window be drawn in order to close the opening so that entry of kohanim might be permitted. Taz takes strong exception to that ruling for a number of reasons, in particular, because the curtain was attached to the wall with iron rings. Taz cites Rambam, Hilkhot Tum'at Met 18:3, who rules that a door held in place by a metal support without which the door would fall does not serve as an interposition preventing the spread of defilement. R. Samuel Aboab, Teshuvot Dvar Shmu'el, no. 223, disputes Taz' understanding of Rambam. According to Dvar Shmu'el's interpretation of Rambam, the presence of metal to support the door does not compromise the door's ability to serve as an interposition. Rather, taking notice of Rambam's phraseology \"he supports it with a key\" (ve-somkho be-mafteaḥ, i.e., a metal object), Dvar Shmu'el understands Rambam as speaking of a situation in which it is the pressure of a human being, rather than the weight of the metal, that keeps the door from collapse. Thus, concludes Dvar Shmu'el, although a metal support would not itself effect the status of the door and impart to it the status of a metal utensil that could not serve as an interposition, nevertheless, a door that cannot remain in an upright position other than with human support cannot serve as an interposition preventing the spread of defilement.",
+ "Another consideration advanced by the authors of Kanfei Yonah, p. 28, is that the passenger seats are attached to the floor of the passenger compartment by screws that they regard as having the status of a ma'amid. As a result, the seats, and hence the entire plane to which the seats are affixed, are subject to an entirely different category of defilement, namely, tum'at midras, i.e., the category of defilement associated with an item designed to be seated or reclined upon. A person sitting or reclining upon an object subject to defilement by virtue of tum'at midras becomes defiled if there is a corpse underneath that object. This form of defilement is entirely independent of defilement by virtue of tactile contact or by virtue of defilement associated with a \"tent.\"",
+ "VIII. Herev Harei Hu ke-Halal—Concomitant Permissible Defilement",
+ "One expedient which, if viable, would permit not only an airplane traveler but any kohen to come into contact with a corpse has not been mentioned by any of the scholars who have addressed this issue. Many years ago, R. Shlomoh Goren suggested that a kohen might avoid transgressing the prohibition against defilement by wearing a watch or by otherwise being in tactile contact with a piece of metal previously defiled through contact with a corpse. That suggestion was posthumously published in Rabbi Goren's Torat ha-Refu'ah (Jerusalem, 5761) and is reprinted in Assia, vol. X, no. 1-2 (Nisan 5762).",
+ "Despite the contrary view of Rabbenu Tam cited by Tosafot, Nazir 54b, the accepted view is that a kohen incurs no transgression in coming into contact with metal defiled by a corpse. As quoted in the comments of Tosafot, that position was formulated by Rabbenu Chaim Kohen who responded to Rabbenu Tam with a pithy comment based upon the verse \"What house will you build for Me?\" (Isaiah 66:1). The import of Rabbenu Chaim Kohen's retort is that, particularly in medieval times, there was no house that did not sooner or later become defiled through the presence of a corpse and hence no building that, following Rabbenu Tam's position, a kohen may enter. Rabbi Chaim Kohen's position is espoused by Rambam, Hilkhot Avel 3:2, and Rema, Yoreh De'ah 369:1.",
+ "Although Rambam, Hilkhot Avel 3:7, rules that a kohen who has become defiled is nevertheless forbidden to come into any further contact with a corpse, in Hilkhot Nezirut 5:17 Rambam rules that, while yet in contact with the first corpse, a Nazarite (who is also forbidden to defile himself through contact with a corpse) incurs no additional penalty in touching a second corpse \"since he is ongoingly profaned\" (meḥullal ve-omed). In effect, Rambam states that defilement is one and the same whether the source is a single corpse or multiple corpses; contact with multiple corpses does not generate a greater degree of defilement. Rabbi Goren argues that the same line of reasoning can be applied to the situation of a kohen who is in contact with defiled metal, i.e., further simultaneous contact with a corpse does not generate additional defilement. Moreover, argues Rabbi Goren, since a kohen may touch defiled metal with impunity, he may also therefore simultaneously come into contact with a corpse with impunity.",
+ "In a contribution to Torah she-be-al Peh, XIII (5742), republished in Be-Netivot ha-Halakhah, III (New York, 5711), 202-206, this author has endeavored to demonstrate that such a conclusion is incorrect. Although other early-day authorities disagree, Rambam's own position, Hilkhot Avel 2:15, is that a kohen who is permitted to defile himself through contact with the corpse of a close relative is nevertheless forbidden to come into contact with another corpse at the same time. Rambam must be understood as distinguishing between the penalty for defilement and the prohibition against a priest or a Nazarite defiling himself, viz., although there is no incremental defilement in the second contact and hence no additional punishment, the act of touching the second corpse is nevertheless prohibited because it is intrinsically an act that generates defilement and all such acts are prohibited.",
+ "Moreover, as is evident from the discussion of the Gemara, Nazir 42b, and Rambam's own terminology in Hilkhot Nezirut 5:19, any leniency with regard to simultaneous contact with a second corpse is predicated upon the consideration that a kohen is prohibited from coming into contact with a corpse because of the admonition \"He shall not defile himself… to profane himself\" (Leviticus 21:4) which is regarded as excluding from the prohibition an instance of a kohen who confronts no additional profanation in the act of contact. To be sure, a kohen defiled through contact with metal suffers no additional defilement but, since his contact with metal does not constitute an act of profanation of his priestly status, he remains bound by the prohibition against coming into contact with a corpse since that act represents not merely an act of defilement but also an act of profanation.",
+ "The same issue of Assia contains two critiques of Rabbi Goren's article, one by R. Levi Yitzchak Halperin, previously published in Rabbi Halperin's Teshuvot Ma'aseh Hoshev, TV (Jerusalem, 5757), no. 27, and a second by Rabbi Baruch Berkowitz. Although his article does not address the many complexities of airplane travel by a kohen, Rabbi Berkowitz, in his final paragraph, suggests that a kohen who relies upon a lenient view with regard to such travel should endeavor to maximize considerations of permissibility by also wearing a metal ring on his finger. Presumably, none of the rabbinic writers who directly address the issue of plane travel by a kohen deem Rabbi Goren's opinion regarding simultaneous contact with metal to be a factor meriting consideration. The fact that his view was ignored is not surprising. The suggestion advanced by Rabbi Goren is hardly novel; it was advanced much earlier and rejected by Teshuvot Helkat Yo'av, II, no. 9, anaf 5 and was also considered and rejected by Sha'ar Zekenim cited by Iggerot Mosheh, Yoreh De'ah, I, no. 230, anaf 6.",
+ "IX. Plastic Body Bags",
+ "The London Jewish Chronicle reported that the head of the London Bet Din, Dayan Chanoch Ehrentreu, who is a kohen, insisted upon enclosing himself in a plastic body suit for the few minutes of flying time required to clear the Holon cemetery. E1 A1 refused to accommodate him on the grounds of safety concerns but British Air did so.",
+ "It is the consensus of halakhic opinion that the substances from which plastic is manufactured have the halakhic status of water or of unfired earthenware and hence cannot be defiled. Therefore, a plastic container, when covered and sealed, would have the status of zamid patil and would assure any object or person confined within the container of freedom from defilement. The authors of Kanfei Yonah, p. 28, assume that closing the bag with tape serves as a seal but also argue that, in addition, the usual form of closure is necessary in order to establish a status of zamid patil. Hence they assert that the cardboard or metal tie customarily used to close plastic bags is also required. It appears to this writer that the sufficiency of tape or a tie to seal the plastic bag is open to question on the basis of the earlier-cited concern expressed by Kanfei Yonah regarding the status of rubber or plastic used to seal airplane doors. If, as the authors of Kanfei Yonah suggest, zamid patil requires a seal inserted within the aperture, squeezing the opening shut from the outside with tape and a tie should not be sufficient.",
+ "Another impediment to invocation of the principle of zamid patil in this context is that only a container that has the status of a keli, or vessel, can preserve its contents from defilement when covered by a zamid patil. The authors of Kanfei Yonah, p. 28, assert that a disposable plastic bag designed for a single use does not have the status of a keli. However, Rabbi Spitzer, Kol ha-Torah, no. 52, p. 184, cites Iggerot Mosheh, Oraḥ Hayyim, III, no. 39, who rules that a disposable plastic cup may be used for kiddush and the like as well as Iggerot Mosheh, Yoreh De'ah, III, no. 23, in which Rabbi Feinstein rules that such a container may also be used for washing one's hands before eating bread. Rambam, Hilkhot Kelim 5:7, does indeed rule that a utensil designed for a single use is not subject to defilement. However, the reason for that ruling is not that a disposable utensil lacks a necessary attribute of a utensil but that, for purposes of defilement, an object must not only be a utensil but must be an item of significance (ḥashuv) as well. A disposable item, by its nature, is arguably not an item of significance. However, a utensil not subject to defilement because it is lacking significance may nevertheless serve as a zamid patil as is evident from Rambam's ruling in Hilkhot Tum'at Met 21:1.",
+ "Rabbi Spitzer also points out that, although there is no indication of such a requirement in Tractate Kelim, Shulḥan Arukh, Oraḥ Hayyim 159:4, rules that a leather flask cannot be used as a vessel for washing one's hands unless it has a base upon which it can stand in an upright position. Taz, Oraḥ Hayyim 159:6, notes that other objects have the status of a keli even though they tip over readily and explains that the requirement for stability is limited to leather flasks and the like that collapse upon themselves and hence become containers or receptacles only when filled. Such an item becomes a keli or a container, explains Taz, only if it has a base that turns it into a receptacle. It may be noted that Rabbenu Shimshon, Kelim 10:4, seems to indicate that for the purpose of serving as a zamid patil a utensil must have a tokh, i.e., it must have the capacity to be a receptacle. Thus, in order for a passenger to enclose himself in a utensil having the status of a zamid patil, a durable plastic container having sufficient body to stand upright even when empty would be required.",
+ "X. A Practical Suggestion",
+ "Obviously, the optimal solution to this problem is, as E1 A1 has repeatedly promised, a change of flight plans to avoid the Holon cemetery. In the alternative, it has been suggested to this writer by a member of his congregation that an entire section of an airplane might be enclosed in a silicone container and sealed from within for the requisite amount of time with silicone putty or with some other acceptable sealant. In addition to being able to utilize a hard substance such as silicone, the advantage of constructing an entire compartment is that it would be large enough to contain sufficient oxygen so that there would be no danger of suffocation during the brief period during which that compartment must remain sealed. If deemed prudent, a canister of oxygen might be placed in the compartment during that brief period for use in case of emergency. Perhaps E1 A1 might even find it advantageous to advertise such accommodations as \"Kohanim Klass!\""
+ ],
+ "Chapter XIII Silk Screened Torah Scrolls": [
+ "The celestial lights shine upon the letters from which the sanctity of the Torah, the sanctity of Torah scrolls, phylacteries and mezuzot, all holy writings, are drawn. Commensurate with the sanctity with which they are written the inspiration [of holiness] and the illumination upon the letters is enhanced. Accordingly, a Torah scroll that contains a single defect is defective in its entirety for there is no proper illumination upon it that would draw sanctity from it to the nation through the power of reading from it.",
+ "R. MOSES CHAIM LUZZATTO, KALAH PITHEI HOKHMAH, INTRODUCTION",
+ "A completed Torah scroll represents the culmination of close to a year of painstaking labor on the part of a scribe who must copy each word from an already existing scroll. The scribe must be proficient in the myriad regulations governing the fashioning of the various letters of the alphabet and must be vigilant in assuring that his calligraphy produces not only an aesthetically pleasing result but that each letter conforms to the requirements of Halakhah. Little wonder, then, that the price of a new Torah scroll, including the cost of the parchment that must be specially prepared for this sacred purpose, now ranges from a minimum of $30,000 to well over $70,000. One twelve-inch Torah scroll recently sold for $90,000. The price of that Torah reflected the lengthy period of time required to write a diminutive scroll.",
+ "Megillot, tefillin and mezuzot must be written in a similar manner but, since less writing is involved, the cost is commensurately lower. Megillot sell for between $800 and $2,000. Tefillin parchments, exclusive of the leather containers in which the parchment scrolls are encased, cost between $350 and $1,500. Mezuzot range in price between $40 and $280.",
+ "The disparity in cost largely reflects the reputation of the particular scribe and the beauty of his calligraphy. Beauty, it is said, is in the eye of the beholder. The beauty of a Torah scroll, to a significant degree, lies in a combination of objective factors including rationalization of lines and margins, symmetry of size with regard to the letters, as well as elements of style that generally are appreciated only by an expert.",
+ "I. The Silk Screen Method",
+ "Halakhah prescribes that each letter of a Torah scroll be formed by a qualified scribe. That requirement effectively bars use of printing or of photographic processes. However, recently, Rabbi Yitzchak Abadi, formerly of Lakewood, N. J., and now a resident of Har Nof in Jerusalem, has developed a novel method for use in producing Torah scrolls, megillot, tefillin and mezuzot. If acceptable, utilization of that method would dramatically reduce the cost of those sacred artifacts.",
+ "The newly-developed process represents an adaptation of the silk screening commonly employed in various forms of commercial art. Silk screening is one of the oldest methods of printing words and images. The origin of silk screening can be traced back to early Egyptian and Chinese civilizations and was probably first developed sometime in the fifth century of the common era. Today, the process, often referred to as serigraphy, is most commonly used by commercial artists because it allows for printing upon virtually any material. Screen printed materials include most plastic containers used for food and industrial products, cosmetics, signs, tee shirts and caps.",
+ "The screen printing process is quite simple. The fabric or mesh of which the screen is made is similar to a window screen but is much finer. Although the screen was originally made of silk, it can also be made of nylon, wire, cotton or, even more commonly at present, polyester. The stencil placed over the screen consists of a thin lacquer sheet. Ink or a coloring agent is deposited onto the screen and pressure is applied by means of a squeegee in order to pull the ink or dye over those parts of the screen not blocked by the stencil. The ink or coloring agent then passes to the surface below the screen known as the substrate. Thus, the letter or design formed on the substrate is defined by the stencil.",
+ "The process developed by Rabbi Abadi, as described in the Tammuz 5762 issue of Or Torah and the Av-Elul 5762 issue of Kovez Bet Aharon ve-Yisra'el involves use of a piece of tightly woven silk that is stretched upon a wooden frame. Minute holes in the material are arranged in the shape of the letters of an entire column or of several columns of a Torah scroll. The silk screen is then placed over parchment and ink is poured on an unperforated area of the silk along the entire length of the right side of the screen. A broad-faced implement, similar to a squeegee, made of rubber or plastic, is then used to force the ink across the screen from right to left with the result that the ink enters and fills the gaps that have been left between the woven strands of the screen. The ink is allowed to dry and, with the removal of the screen, a full column or multiple columns of writing appear. The process is repeated for each section of the Torah scroll and, ultimately, the parchment columns subjected to this process are sewn together in the usual manner. Many individuals will readily recall using stencils as children either to trace the outlines of the alphabet or to fill in entire letters with crayon. The silk screen process, in effect, produces letters through the intermediacy of a stencil-like device.",
+ "There are reports that a quantity of megillot prepared in this manner have been sold in the United Sates. An announcement of planned production of Torah scrolls and a solicitation of deposits has been posted on a web site for some time. Each Torah scroll was offered for sale at a price of $18,000 and required an initial deposit of $10,000. The estimated completion date for the first thirty Torah scrolls was given as November 2002. Nevertheless, to date, there have been no reports of actual delivery of any Torah scrolls produced in this manner.",
+ "II. Reaction to the Silk Screen Method",
+ "Reports of the sale of silk screened megillot evoked the harsh censure of leading Israeli halakhic authorities. Letters signed by R. Joseph Shalom Eliashiv, R. Samuel ha-Levi Woszner, R. Nissim Karelitz and the members of the Bet Din of Jerusalem's Edah ha-Haredit declaring megillot, Torah scrolls, mezuzot and tefillin prepared in such manner to be unfit for use were published in the Israeli weekly Yated Ne'eman, 24 Kislev 5763. A similar letter dated 5 Kislev 5763 signed by R. Ovadiah Yosef has also been circulated. The letter signed by R. Nissim Karelitz and published in the Yated Ne'eman is in the form of a statement signed by three other noted rabbinic figures and is dated 16 Kislev 5763. Much earlier, an identical letter was circulated dated Tammuz 5762. In addition to the signatures appearing in the Yated Ne'eman, the earlier letter also bears the signatures of Rabbi Eliashiv and Rabbi Karelitz, who apparently later issued their own individual letters, as well as the signature of R. Chaim Pinchas Scheinberg, Rosh Yeshivah of Yeshivat Or Torah in the Mattersdorf section of Jerusalem. A journalistic report and critique of the process appeared in Shabbat Kodesh, the magazine section of the Yated Ne'eman, Parashat Mikez 5763.",
+ "A detailed analysis of the objections voiced with regard to the silk screen process is presented in an article by R. Menachem Yehudah ha-Levi Gross that appeared both in the Tammuz 5762 issue of Or Torah, a Torah journal published by a Sephardic Torah institution in Jerusalem, Yeshivat Porat Yosef, and in the Av-Elul 5762 issue of Kovez Bet Aharon ve-Yisra'el published by the Torah Institutes of Karlin-Stolen. The Av 5762 issue of Or Torah features a relatively brief responsum by R. Ovadiah Yosef, dated 8 Sivan 5772, addressed to a son of R. Samuel Woszner making many of the same points. Rabbi Yosef's comments were penned in response to an unpublished analysis of the issues drafted by the younger Rabbi Woszner and transmitted by him to Rabbi Yosef. It is apparently that responsum by R. Ben Zion Ya'akov Woszner that was later published together with Rabbi Yosefs reply in Or Yisra'el, Tevet 5763. Additional letters signed by R. Samuel Woszner, R. Raphael Blum and the Bet Din of the Edah ha-Haredit also appear in the same issue of that Torah journal.",
+ "The various letters of condemnation are univocal in substance; they differ only with regard to the tone and degree of vehemence, ranging from Rabbi Woszner's exhortation to fulfill the halakhic obligation to flee from this \"act of corruption,\" Rabbi Eliashiv's declaration that \"one who rules permissibly in the matter, the distributors, their merchants and sub-merchants are in the category of sinners and those who cause the multitudes to sin,\" to R. Ovadiah Yosef's comparatively mild conclusion that the proponent of this novel method \"has nothing at all upon which to base himself.\" However, even that statement is preceded with the declaration, \"The matter demonstrates that the fear of God is not upon their shoulders. Woe to them on the Day of Judgment!\"",
+ "An anonymous apologia in the form of a pamphlet titled Ha-Emet ve-ha-Shalom Ahevu countering the alleged infraction of the regulations governing the writing of Torah scrolls and the like was published in Bnei Brak (5763). A similar exposition also appears in Rabbi Abadi's recently published work, Or Yizḥak, no. 53. Although the process is defended in Ha-Emet ve-ha-Shalom, the anonymous author states in his preface in bold type that \"it is certainly clear to us that this thing should not be done, as has been ruled by R. Joseph Shalom Eliashiv.\" However, the tenor of the concluding section of the work and of Rabbi Abadi's responsum is quite different.",
+ "III. Halakhic Objections",
+ "1. \"Spilling\" as Opposed to Writing",
+ "The textual locus of the primary objection—and ostensibly of the proposal itself—is the statement of the Gemara, Gittin 19a, presented in the context of procedures to be employed in drafting of a bill of divorce: \"Witnesses who do not know how to sign, we tear a blank paper on their behalf and they fill the torn spaces with ink.\" Deuteronomy 24:1 provides that a husband desirous of divorcing his wife must \"write her a bill of divorcement.\" The Gemara, Gittin 19a, cites a beraita containing two opinions with regard to the procedure to be followed in situations in which the witnesses do not know how to affix their signatures. One opinion rules that a non-durable substance should be employed to outline the letters of their signatures. The witnesses, using those letters as guidelines, should write their names over that substance with ink. The second opinion maintains that \"we tear a blank piece of paper on their behalf and they fill in the torn spaces with ink.\"",
+ "Rashi presumes that the expression \"we tear\" (mekar'in) is not to be understood literally and that the term \"paper\" does not refer to a piece of paper superimposed upon the get itself. Rather, the reference is to the paper upon which the bill of divorce itself has been drafted and the \"tearing\" to which reference is made is, in actuality, a form of etching, i.e., letters forming the names of the witnesses are scratched into the paper and the illiterate witnesses append their signatures by drawing a pen over the indentations in the paper.",
+ "Rambam, Hilkhot Geirushin 1:23, rules that illiterate witnesses may be assisted by having others form the letters of the witnesses' names with \"spittle or something similar that does not make a durable impression\" and allowing the witnesses to write over that substance. Rambam's codification is followed by Shulḥan Arukh, Even ha-Ezer 130:16 and Hoshen Mishpat 45:4. Rambam fails to record that \"tearing\" blank paper is also an acceptable expedient. If Rambam regarded the two talmudic opinions to be in conflict with one another and intentionally excluded the expedient of \"tearing\" a piece of paper it would follow that there is no basis for an assumption that a procedure involving tearing a piece of paper is a halakhically recognized form of writing. However, Bet Yosef, Even ha-Ezer 130, asserts that \"tearing\" blank paper is acceptable even according to Rambam. According to Bet Yosef, the two opinions recorded by the Gemara are complementary and Rambam simply recorded the expedient he regarded as representing the greater novellum.",
+ "Nevertheless, even assuming that \"tearing\" a piece of paper is an acceptable expedient, Rashi explains that \"tearing\" really means scratching the shape of the letters on the document in order to enable the witnesses to fill in the indentations. According to Rashi's understanding of the text, there is no indication whatsoever that spilling ink over a stencil from which letters have been excised constitutes a halakhically acceptable form of writing.",
+ "Tosafot, however, challenge Rashi's interpretation on the obvious grounds that the term \"mekar'in\" connotes actual tearing rather than etching. Tosafot cite Rabbenu Hannanel who explains the beraita literally: a piece of paper is employed to fashion a rudimentary stencil by cutting out letters and the witnesses then ink in the cut out spaces representing the letters of their names. That is also the understanding of Rabbenu Nissim, Ritva and Shiltei ha-Gibborim in their respective commentaries, ad locum, as well as of Ramah cited by Tur Shulḥan Arukh, Even ha-Ezer 130:16. Tosafot ha-Rosh further cites an objection raised by the Palestinian Talmud, Gittin 2:3. In order to prevent a challenge to the authenticity of the get, the signatures of the witnesses must be validated either by comparison of those signatures with already authenticated signatures or by testimony of witnesses who recognize the signatures. According to Tosafot ha-Rosh's interpretation of the relevant passage contained in the Palestinian Talmud, the Palestinian Talmud raises an extremely cogent objection: How can signatures be verified if they are not idiosyncratic but instead are stylized by means of a stencil? Such signatures, argues the Palestinian Talmud, will have the characteristics of the pattern prepared by the person who cut the stencil rather than of the witnesses. The Palestinian Talmud's response is that the witness must be mindful not to ink in the space in its entirety but to use the torn paper merely as a guide in forming the letters of their names with the result that there will indeed be a distinctive pattern to the manner in which the letters are formed.",
+ "Since Tosafot, Gittin 4a, declare that all regulations governing the \"writing\" of a get are attendant upon the signatures of a get as well, it might then be argued that filling in the cut out areas of a stencil or silk screen does constitute \"writing\" in the halakhic sense of the concept. Moreover, since there is no need for authentication of the handwriting of a Torah scroll, the cut out areas might also be inked in in their entirety. Nevertheless, filling in spaces on a stencil is readily distinguishable from simply passing ink over a stencil and allowing the blanks spaces to absorb the ink. The former involves an act of \"writing\" in that each letter is individually formed by a series of acts entirely similar to those of conventional writing with the stencil merely serving as a guide; the latter involves only spilling ink without any need for an act designed to fashion letters or even for the intent to do so. That distinction is expressly formulated in the name of Tosafot both by Hiddushei Ritva ha-Yeshanim and Rabbenu Crescas who state that the expedient of a torn paper may be utilized \"only in the manner of writing but not by spilling ink on the paper, for that is not 'writing.' \" Rabbi Abadi, Or Yizḥak, no. 53, sec. 3, however, insists that since the silk screen method requires application of pressure it is not to be equated with \"spilling.\"",
+ "Rabbi Gross suggests that the concept formulated by Ritva and Rabbenu Crescas is rooted in a discussion of the Palestinian Talmud, Gittin 2:3 and Shabbat 12:4. Citing the verse \"and he shall write her a bill of divorcement\" (Deuteronomy 24:1) the Palestinian Talmud declares: \" 'He shall write,' but not gouge (ve-lo ha-ḥokek); 'he shall write,' but not drip (ve-lo ha-matif); 'he shall write,' but not spill (ve-lo ha-shofekh).\" As an example of \"but not spill,\" the Palestinian Talmud describes a type of \"invisible ink\" employed by the wise men of Medenha. The ink of antiquity included a variety of components including an apparently colorless substance known as mei afazim. That ingredient used in isolation was the invisible ink of the \"wise men of Medenha.\" The recipient of a seemingly blank piece of paper would make the writing appear by pouring a specially prepared ink lacking mei afazim over the paper. Upon coming into contact with the mei afazim already imbedded in the paper, the letters originally formed by the invisible mei afazim became clearly legible.",
+ "The Palestinian Talmud declares that such a procedure does not constitute \"writing.\" Rabbi Abadi, Or Yizḥak, no. 53, sec. 3, asserts that only a procedure of this nature is excluded by the exegetical declaration \"but not spill.\" That principle, he asserts, does not exclude \"pushing\" ink in order to form letters. Nevertheless, it seems evident that the rationale reflected in the comment of the Palestinian Talmud \"but not drip\" is that letters formed without direction, i.e., by merely dribbling a substance capable of arranging itself into words without the hand motions involved in normal writing, is not a form of \"writing\" for purposes of Halakhah. More fundamentally, the exclusion \"but not spill\" certainly seems to connote the pouring of ink in a manner that allows the ink to form itself into letters. The silk screen process certainly falls within that category.",
+ "2. \"Dripping\" as Opposed to Writing",
+ "The Palestinian Talmud further states that the exclusion \"but not drip\" also precludes forming letters by means of dots and adduces a controversy with regard to whether a bill of divorce containing letters originally formed by means of dots but later connected contiguously is valid. Ramban, Gittin 20a, followed by Rabbenu Crescas and Me'iri, rules that a Torah scroll written in that manner is unfit for use even though the dots are ultimately connected because \"this is not writing.\" Pri Hadash, Even ha-Ezer 125:4, rules that, in light of the unresolved talmudic controversy, the validity of a get drafted in such a manner must be regarded as matter of doubt.",
+ "Rabbi Gross observes that the silk screen method does not really employ a stencil that allows the letter to be filled in on the underlying parchment in its entirety. Instead it utilizes a series of holes in the screen through which the ink drips onto the parchment. Contiguous letters are the result of a bleeding process, i.e., a series of dots are formed and later merge into a complete letter. Rabbi Gross notes that, unlike Korban ha-Edah in his commentary to the Palestinian Talmud, ad locum, Teshuvot Sho'el u-Meshiv, Mahadura Kamma, III, no. 102, asserts that the Palestinian Talmud disqualifies the get only if the drops of ink were originally significantly distanced from one another but not if they are placed so close to one another as to appear in the guise of a letter. Nevertheless, Rabbi Gross maintains that even such letters are rendered acceptable only if the dots are connected by means of a pen but are unacceptable if the dots merge of their own accord to fill the page. Rabbi Abadi, Or Yizḥak, no. 53, sec. 3, responds to that objection by contending that the silk screen method does not cause letters to be formed by means of bleeding which serves to connect tiny droplets of ink. Rather, he insists, although the ink penetrates between the strands of the silk screen drop by drop, the ink emerges onto the parchment, not as droplets, but as a complete letter.",
+ "3. Not \"In the Manner of Writing\"",
+ "In his rejection of the validity of the silk screen method, Rabbi Yosef does not focus upon the nature of the silk screen method as a process tantamount to connecting dots. Instead he cites Teshuvot ha-Rashba ha-Meyuḥasot le-Ramban, no. 122, who states that the procedure described by the Palestinian Talmud results in an invalid get because \"we require that [the scribe] write in the manner of those who write\" and concludes that, a fortiori, the silk screen method is unacceptable \"for after he drips the ink he does not perform an act of writing or of moving a pen.\" In effect, Rabbi Yosef categorizes the forming of letters by means of droplets of ink as not being \"in the manner of writing.\" Unlike Rabbi Abadi, Rabbi Yosef does not regard the pushing of a squeegee to be comparable to maneuvering a pen.",
+ "Rabbi Gross advances an even more basic consideration to disqualify the silk screen process on the grounds that it is \"not in the manner of writing.\" Torah scrolls, tefillin, mezuzot etc. must be written \"in the manner of writing\" (derekh ketivah). For that reason, Shulḥan Arukh, Oraḥ Hayyim 32:5, cites authorities who rule that if a right-handed individual writes tefillin with his left hand they are unfit for use. In \"writing,\" letters are formed by discrete hand motions that give shape to the letters. In silk screening, the motions of the hand do not give the letters their distinct shape; rather, the shape is an indirect result that arises from the presence of the stencil.",
+ "In addition, R. Moshe Sofer, Teshuvot Hatam Sofer, VI, no. 29, s.v. ma-she-katav ma'alato, declares that speedwriting executed by invoking supernatural powers is no different from writing with the left hand, i.e., it is not \"in the manner of writing.\" Accordingly, argues Rabbi Gross, the rapid manner in which silk screen writing is performed is not \"in the manner of writing.\" However, it should be noted that in discussing the halakhic status of a printing press, R. Abraham I. Kook, Da'at Kohen, no. 160, endeavors to demonstrate that, for purposes of Sabbath strictures, simultaneous writing of multiple letters constitutes a capital transgression. Consequently, Da'at kohen regards simultaneous formation of multiple letters to be \"in the manner of writing.\" Moreover, as Rabbi Abadi, Or Yizḥak, no. 53, sec. 1, notes, the Gemara, Yoma 38b, describes a process employed to write four letters simultaneously. Teshuvot R. Mosheh Provenςal declares explicitly that there is no obligation to form letters individually or to write every word separately. The process described by Hatam Sofer is readily distinguishable from the simultaneous writing described in that source and in Da'at Kohen in that the process described by Hatam Sofer involved harnessing supernatural powers. It is readily understandable that utilization of supernatural powers is not \"in the manner of writing\" and, moreover, it may be argued that writing effected by means of such powers is not to be deemed the product of a human act.",
+ "Rabbi Gross also suggests that for the procedure to be carried out \"in the manner of writing,\" it is necessary for the writing implement to come into direct contact with the paper or parchment being written upon. Silk screening involves the interposition of a screen between the squeegee and the parchment and hence, contends Rabbi Gross, the process may not be consistent with \"the manner of writing.\"",
+ "4. Hok Tokhot (Gouging)",
+ "Another objection to the silk screen process is based upon analysis of the rule that excludes whittling from the category of \"writing.\" The Gemara, Gittin 20a, cites the verse \"and he shall write\" as excluding gouging in the form of whittling a substance so that letters appear in relief (ḥok tokhot). Of course, pouring ink upon a stencil in silk screening is quite different from whittling. Nevertheless it may be argued that the rationale underlying the exclusion of whittling is equally applicable to the silk screen process. Rashi explains that whittling is not a form of \"writing\" because the whittler \"did not form the letters.\" Tosafot, Sanhedrin 21b, similarly explain that in the process of whittling \"the writing appears of its own.\" Me'iri, in his Kiryat Sefer, ma'amar bet, part 2, s.v. ve-af, is even more explicit in explaining that the exclusion is predicated upon the consideration that such a procedure does not constitute writing \"for he did not perform an act upon the letters themselves and the basic writing is made of itself.\" One who forces ink over a silk screen certainly has not shaped or formed the letters and hence by performing an act \"upon the letters themselves\" the resultant writing can accurately be described as having come about \"of itself\" in that it is produced by the screen rather than by the writer. Indeed, as Rabbi Gross points out, whittling does involve acts that shape the letter but is unsatisfactory because those acts are performed in a manner that is external to the letter itself. The silk screen process is even further removed from the category of \"writing,\" contends Rabbi Gross, by virtue of the fact that, in pressing ink upon the screen, the human hand performs no act with regard to the actual shaping of the letters.",
+ "5. The Divine Names",
+ "Another problem with regard to the silk screen process is the writing of the many occurrences of the Divine Name. Shulḥan Arukh, Oraḥ Hayyim 32:19 and Yoreh De'ah 276:2, records the rule that the Divine Name, in each of its occurrences, must be written explicitly \"for the purpose of the sanctity of the Divine Name\" (le-shem kedushat ha-Shem). Many authorities, including, inter alia,, Bnei Yonah 276:2; Divrei Hamudot, Halakhot Ketanot, Hilkhot Sefer Torah 4:11; Ma'adanei Yom Tov, Halakhot Ketanot, Hilkhot Sefer Torah 4:5; Eliyahu Rabbah 32:36; Teshuvot Bet Shlomoh, Yoreh De'ah, II, no. 163; Teshuvot Dvar Shmu'el, no. 76; Melekhet Shamayim, no. 5; Birkei Yosef Yoreh De'ah 276:3; Bet Aharon, no. 12; Teshuvot Maharam Shik, Yoreh De'ah, no. 276; Kol Ya'akov, Yoreh De'ah 274:4; R. Yitzchak Dov Bamberger, Melekhet Shamayim, Binah 9:3; and Hazon Ish, Oraḥ Hayyim 6:13, maintain that such sanctification must be performed verbally prior to the writing of each and every Divine Name.",
+ "However, Taz, Yoreh De'ah 274:1, rules that at least post factum, such sanctification is necessary only at the beginning of each writing session. Taz' position is itself the subject of differing interpretations. Some authorities, including inter alia, Bnei Yonah 276:2, Teshuvot Bet Shlomoh, Yoreh De'ah, II, no. 163, Be'er Heitev, Yoreh De'ah 276:2; Teshuvot Maharam Shik, Yoreh De'ah, no. 276; Teshuvot Zera Emet, I, Oraḥ Hayyim, no. 6; Emek She'elah, Yoreh De'ah, no. 77; and Pitḥei Teshuvah, Yoreh De'ah 276:1, maintain that, although according to Taz, a single verbal declaration is sufficient, it is nevertheless necessary for the scribe to sanctify the Divine Name mentally in the course of his writing prior to each of its occurrences.",
+ "However, Pri Megadim, Eshel Avraham 32:32, followed by Teshuvot Avnei Nezer, Yoreh De'ah, no. 359, sec. 1 and no. 374, sec. 3 and Keset ha-Sofer, Lishkat ha-Sofer 11:26 as well as by Mishnah Berurah 32:96, understands Taz' position to be that, post factum, even absence of subsequent mental sanctification does not invalidate the Divine Name. Mishnah Berurah, 32:19, Bi'ur Halakhah, s.v., be-teḥilah, rules that Taz' position may be relied upon only in cases of doubt with regard to whether the scribe verbally sanctified a particular Divine Name. Kol Ya'akov 274:4 asserts that the majority of authorities reject Taz' position.",
+ "Rabbi Gross takes it for granted that, according to those who reject Taz' position and require sanctification of each Divine Name individually, use of the silk screen process cannot be contemplated. However, Teshuvot Mas'at Binyamin, no. 99, cogently asserts that multiple Divine Names may be written consecutively with a single sanctification. Maharik, Yoreh De'ah, no. 277, and Teshuvot Devar Shmu'el, no. 76, similarly seem to maintain that a number of Divine Names may be written with a single sanctification provided there is no interruption in the writing. Melekhet Shamayim, Binah 9:3, also emphasizes that, when there is no interruption, a single sanctification is sufficient. Similarly, Binat Sofer 1:1 declares that use of a printing press cannot be proscribed for that reason because \"even if there are many Divine Names it is possible to sanctify them at one time.\" If so, the use of a squeegee to produce an entire column may well be regarded as no different from consecutive writing of multiple Divine Names. Nevertheless, R. Ovadiah Yosef, Yeḥaveh Da'at, VI, no. 57, rules that printing methods are invalid because of the requirement that each occurrence of the Divine Name must be sanctified separately. A similar view was earlier advanced by Bnei Yonah.",
+ "Rabbi Gross further argues that, as noted by numerous authorities, including Bi'ur ha-Gra, Oraḥ Hayyim 32:19; Pitḥei Teshuvah, Yoreh De'ah 276:9; and Teshuvot Avnei Nezer, Yoreh De'ah, no. 359, secs.1-3, the scribe must at least be cognizant of the fact that he is transcribing the Divine Name. Rabbi Gross regards that requirement to be incapable of fulfillment in conjunction with employment of the silk screen method presumably because the requisite mental act is marred by virtue of the fact that the person applying the ink is also cognizant of the other words that he is forming. Rabbi Abadi, Or Yizḥak, no. 53, sec. 5, asserts that awareness of the fact that other words are being formed simultaneously does not interfere with cognizance of the writing of the Divine Name.",
+ "Another consideration with regard to the writing of Divine Names is the issue of the order in which the letters of the Divine Name must be formed. R. Abraham ben Mordecai ha-Levi, Teshuvot Ginat Veradim, Oraḥ Hayyim, klal 2, nos. 10 and 12, asserts that the letters of the Divine Name must be written in consecutive order. That is also the position of Teshuvot Noda bi-Yehudah, Mahadura Tinyana, Yorah De'ah, no. 74 and supporting evidence is advanced by Minḥiat Hinnukh, no. 436. Teshuvah me-Ahavah, III, no. 391, similarly remarks that the letters of the Divine Name \"must certainly be written consecutively.\" That also seems to be view of the Zohar, Va-Yikra 11b. Nevertheless, the position that the letters of the Divine Name must be written consecutively is refuted by Teshuvot Avnei Nezer, Yoreh De'ah, no. 30, and, as demonstrated by Teshuvot Yabi'a Omer, III, Yoreh De'ah, no. 14, is contradicted by numerous other authorities. In any event, in employment of the silk screen method, ink is spread across each column from right to left with the result that the letters of each Divine Name are indeed produced in consecutive order.",
+ "6. Copying from an Existing Scroll",
+ "Based upon a statement of the Gemara, Megillah 18b, Shulḥan Arukh, Yoreh De'ah 274:2, rules that a Torah scroll cannot be written from memory but must be copied from an already existing Torah scroll. Rabbi Gross endeavors to demonstrate that this requirement is not based upon the fear that a fallible memory may lead to inadvertent scribal error but is an intrinsic procedural rule. R. Jonah Landsopher, Bnei Yonah (Prague, 5562), no. 271, Pilpul Arukh, p. 14a, observes that the Palestinian Talmud, Megillah 4:1, reports that Rabbi Meir wrote a megillah from memory and then copied a second megillah from it. Thereupon, Rabbi Meir secreted the first megillah and used the second for the reading of the megillah. Assuredly, the first megillah was free of error, else it could not have been used as a master copy for purposes of copying the second. Nevertheless, the first megillah was not useable because it had not been copied from an already existing megillah. Similarly, argues Rabbi Gross, scrolls produced by a silk screen process are not acceptable because they have not been copied from existing scrolls. A similar objection was earlier advanced by R. Ben-Zion Meir Chai Uziel, Piskei Uzi'el, no. 31, with regard to use of a printing press for such purposes.",
+ "Rabbi Gross' argument is, however, subject to challenge. It is quite correct that subsequent proofreading does not retroactively validate a scroll written from memory. Nevertheless, it is not at all clear that, other than being an uncorrupted text, the scroll used as a master copy need necessarily be written in conformity with all halakhic requirements. Proof: As is evident from the anecdote concerning R. Meir, a megillah may be used as a master copy even if it itself was not copied from another scroll. Thus, for example, it is possible that a scroll written by a minor, although itself invalid, might nevertheless be used for purposes of copying. If so, the stencil used in the silk screen process may perhaps be regarded as the master scroll and the scroll produced from it may perhaps be regarded as functionally \"copied\" from the screen.",
+ "7. Vocalization Prior to Writing",
+ "As recorded by Shulḥan Arukh, Yoreh De'ah 274:2, there is also a requirement that the scribe pronounce each word before committing it to writing. However, both Rashi and Tosafot, Menaḥot 30a, as well as numerous other early authorities, indicate that vocalization is necessary only in order to prevent scribal error. That consideration certainly is not germane with regard to the silk screen process. However, Baḥ, Oraḥ Hayyim 32:15, states that vocalization is mandated in order to cause the sanctity of the spoken work to become attached to the written letters. Although Baḥ's position is cited by Shiyarei Knesset ha-Gedolah, Hiddushei Bet Yosef, Oraḥ Hayyim 32:20, and by a number of other latter-day authorities, the weight of opinion is not in accordance with his view. Nevertheless, citing Baḥ, Mishnah Berurah 32:36 rules that if the scribe does not vocalize the words prior to writing them the scroll can be regarded as valid only post factum. Rabbi Abadi, Or Yizḥak, no. 53, sec. 7, concedes that the silk screen method is not compatible with the requirement for vocalization as understood by Baḥ.",
+ "IV. Conclusion",
+ "The silk screen method is certainly subject to challenge on the basis of its inherent incompatibility with a number of considerations:",
+ "1. The position of Baḥ, who maintains that each word must be vocalized before writing even when there is no chance of scribal error.
2. The view of the authorities who maintain that each word must be copied from an existing text and that an error-free \"master text\" is not sufficient for this purpose.
3. The view of the authorities who maintain that multiple Divine Names cannot be sanctified even simultaneously.
4. Iggeret Mosheh's view that any method in which sirtut serves no purpose is disqualified.
5. The view of Teshuvot Zera Avraham, She'ilat David, Da'at Kohen and Piskei Uzi'el that the printing press is not acceptable because \"it is not in the manner of writing.\"
6. The kabbalistic view expressed by Ari regarding the particular form of writing that governs the manner in which the writing of each letter is begun.",
+ "Nevertheless, a competent rabbinic decisor might, with justification, conclude that those are minority views and consequently rely upon the weight of authority in ignoring such concerns. The crucial consideration is whether or not the silk screen method constitutes either \"spilling\" or \"dripping\" and hence is ruled invalid by the Palestinian Talmud. Since the validity of Torah scrolls, tefillin and mezuzot is a matter of biblical law, any doubt, if the there is indeed such doubt, must be resolved in the negative. Thus, it would be necessary either to adduce strong precedent in support of the validity of a method similar to the silk screen process or to advance a compelling logical distinction between that method and the processes described by the Palestinian Talmud. In this writer's opinion, the requisite demonstration has not been forthcoming."
+ ],
+ "Chapter XIV Miscellaneous": [
+ "Bar Kappara expounded: Which is the small section upon which all substantive principles of Torah are contingent? \"In all your ways acknowledge Him, and He will direct your paths \" (Proverbs 3:6).",
+ "YALKUT SHIM'ONI, PROVERBS 3",
+ "Torah Readings on Fast Days",
+ "In the Nisan-Tammuz 5757 issue of Or ha-Mizraḥ, Rabbi Sholom Rivkin, Chief Rabbi of St. Louis, Missouri, presents an interesting query addressed to him by a resident of a home for senior citizens. The aged and infirm residents did not anticipate success in mustering the requisite quorum of persons who would refrain from food on the approaching Fast of Esther and realized they would be unable to read the Torah section designated for fast days. But, since the fast occurred on a Monday, they sought guidance with regard to whether they should proceed with the usual reading of the initial section of the forthcoming weekly portion. Rabbi Rivkin reports that, despite difficulties he had with the position, he hesitated to respond in the affirmative because of the view of R. Meir Arak, Teshuvot Imrei Yosher, II, no. 124, sec. 2, who rules that under such circumstances there should be no Torah reading. The identical question arises with some frequency in small congregations in which several worshippers are feeble or sickly. In a responsum describing such a situation, R. Abraham David Horowitz of Strasburg, Kinyan Torah be-Halakhah, I, no. 119, also finds it difficult to rule contra the decision of Imrei Yosher.",
+ "Imrei Yosher maintains that \"since the reading of Va-Yeḥal was ordained [for such occasions], when there are no fasters, there is no [Torah] reading.\" Imrei Yosher advances another consideration based upon the comments of Teshuvot Hatam Sofer, Oraḥ Hayyim, no. 184, in support of his ruling. Hatam Sofer expresses reservations with regard to the basic premise that Va-Yeḥal is not read on public fast days in the absence of a quorum of six persons fasting. Hatam Sofer suggests that this rule may apply only to fasts voluntarily undertaken by a group of individuals but that Torah reading on a public fast day is ordained for all by virtue of rabbinic decree. Hence, argues Imrei Yosher, even though this view was not definitively held even by Hatam Sofer, it nevertheless serves to generate significant doubt with regard to whether, in the absence of persons fasting, the appropriate reading on occasions on which the fast occurs on a Monday or Thursday is Va-Yeḥal or the weekly section. Public reading of the Torah is accompanied by prononcement of blessings. Accordingly, since the section to be read is a matter of doubt, argues Imrei Yosher, the blessings may not be pronounced for fear that they may be pronounced in vain.",
+ "Left unexamined by Imrei Yosher is why both Torah sections should not be read in order to satisfy the doubt, but without the accompanying blessings. In a responsum devoted to an entirely different matter, R. Naphtali Zevi Judah Berlin (Netziv), Teshuvot Meshiv Davar, I, no. 16, marshals evidence showing that, as opposed to the Babylonian Talmud, the Palestinian Talmud maintains that rabbinic decree forbids any public reading of the Torah in the absence of the accompanying blessings.",
+ "Nevertheless, Imrei Yosher's view is contradicted by numerous other authorities. The earliest explicit reference to this question seems to be by the eighteenth-century Sephardic authority, R. Ishmael ben Abraham Isaac ha-Kohen, Teshuvot Zera Emet, Oraḥ Hayyim, no. 86, s.v. ve-gam, who asserts that, under such circumstances, the appropriate section of the weekly portion should be read. R. Betzalel Stern, Teshuvot be-Ẓel ha-Hokhmah, I, no. 2, sec. 5, infers from the comment of a much earlier work, Eliyahu Rabbah 566:4, that this position was espoused by the author of that compendium. Unlike other authorities who require only six or seven fasting persons for the reading of Va-Yeḥal, Eliyahu Rabbah asserts that the requisite quorum is ten such individuals. Nevertheless, he agrees that, for the morning reading on a fast day that occurs on a Monday or Thursday, six fasting individuals suffice \"for there is no additional blessing\" in supplanting the usual reading with the reading for a fast day. Rabbi Stern deduces that Eliyahu Rabbah must maintain that, absent a quorum of persons fasting, the weekly section must be read because, otherwise, there would indeed be an \"additional blessing.\" A similar ruling is recorded by R. Abraham Argo'iti, Yerekh Ya'akov, Oraḥ Hayyim, no. 45, in the name of earlier Sephardic scholars. Pri Megadim, Oraḥ Hayyim, Mishbezot Zahav 566:7, similarly maintains that a person who is not fasting may be counted toward a quorum of ten for the purpose of reading from the Torah if the fast occurs on a Monday or Thursday.",
+ "Imrei Yosher's position is clearly contradicted by the ruling of Sha'arei Efrayim 8:106, followed by Kaf ha-Hayyim, Oraḥ Hayyim 666:8, and R. Chaim Pelaggi, Sefer Hayyim 36:7, with regard to a congregation of fasting individuals who, on a fast day that occurred on a Monday or Thursday, read the weekly section in error. Those authorities rule that, once the incorrect reading is begun, it need not be interrupted in order to read Va-Yeḥal. Thus, they clearly maintain that the rabbinic ordinance concerning Torah reading on Monday and Thursday is not totally abrogated by virtue of the fast. Rather, rabbinic authorities simply allowed substitution of Va-Yeḥal for the usual reading. That analysis of the rabbinic enactment is clearly enunciated by R. Naphtali Zevi Judah Berlin, Ha'amek She'elah, Parashat Va-Yishlaḥ, sec. 33. Hence those who are exempt from fasting or who do not read Va-Yeḥal for any other reason remain obligated to read the otherwise designated section. Indeed, Sha'arei Efrayim draws attention to the fact that, as cited by Tur Shulḥan Arukh, some authorities maintain that the weekly portion must always be read in conjunction with morning services on a Monday or Thursday. Sha'arei Efrayim describes the accepted practice of substituting Va-Yeḥal as simply a custom with the result that the reading of the weekly portion suffices to satisfy the rabbinic requirement.",
+ "Rabbi Rivkin cites R. Shabbetai Lipshitz, in his commentary on Sha'arei Efrayim, Sha'arei Raḥamim 8:67; Avodat ha-Gershuni, quoted by R. Simchah ha-Levi Bamberger, Zekher Simḥah, no. 70; and R. Abraham Chaim Noe, Shenot Hayyim (Jerusalem, 5781), chap. 21, sec. 6, who similarly espouse a position contrary to that of Imrei Yosher. Imrei Yosher's position is also rejected by R. Chaim Pinchas Luria, Meshiv Halakhah, II, no. 14. Thus, in the absence of a quorum of fasters, the weight of authority requires the reading of the weekly Torah section when the fast day occurs on a Monday or Thursday.",
+ "She-Heḥeyanu upon Purchase of a House",
+ "As recorded in Shulḥan Arukh, Oraḥ Hayyim 223:3, acquisition of a house or of a valued object occasions the pronouncement of the she-heḥeyanu blessing (\"who has kept us alive and preserved us until this day\") or, if the object is acquired jointly by more than one person, the blessing ha-tov ve-ha-metiv (\"who is good and bestows goodness\"). An interesting question pertaining to recitation of those blessings is discussed in one volume of a recently published series of collected responsa and halakhic essays. In the fifth volume of Ẓohar (Jerusalem, 5759), edited by R. Elyakim Dworkes, R. Yitzchak Zilberstein assembles earlier sources that address the problem of whether or not the appropriate blessing should be pronounced upon the purchase of real estate that is financed by a mortgage.",
+ "The issue was first raised by R. Chaim Pelaggi in his Teshuvot Lev Hayyim, III, no. 52. Lev Hayyim observes that the blessing was ordained as an expression of joy experienced upon acquiring an object from which a person derives pleasure. Lev Hayyim notes that incurring debt in conjunction with a purchase substantially mars the pleasure of acquisition since the purchaser is in a state of unease because of his need to satisfy the debt. Lev Hayyim's ruling is cited and endorsed by the author of the popular Sephardic compendium Kaf ha-Hayyim 223:10.",
+ "R. Eliezer Waldenberg, Ẓiz Eli'ezer, XII, no. 19, takes issue with Lev Hayyim's ruling. Ẓiz Eli'ezer concedes that a person experiences apprehension and even distress in incurring debt. The purchaser, however, experiences mixed emotions, viz., happiness at acquiring the property and distress at incurring the debt. Similarly, although common practice is to the contrary, as recorded in Shulḥan Arukh, Oraḥ Hayyim 223:2, a son who inherits his father's estate grieves at the loss of his father but is nevertheless required to pronounce the appropriate blessing occasioned by the inheritance that devolves upon him. The son experiences mixed emotions, and indeed would happily surrender his inheritance rather than experience the death of his father, but, for purposes of blessings, each emotion is recognized separately. Thus the son is required to pronounce two separate—and disparate—blessings: dayyan ha-emet (the true judge) in acceptance of the loss and grief occasioned by the death of his father and she-heḥeyanu in acknowledging the beneficence represented by the estate to which he has succeeded.",
+ "R. Moshe Stern, the Debreciner Rav, Teshuvot Be'er Mosheh, V, no. 68, rebuts Ẓiz Eli'ezer's argument by pointing out that death and inheritance are two entirely distinct matters, each of which gives rise to a different emotion. Although a person in such circumstances may simultaneously experience both profound sorrow and satisfaction, each of those reactions is prompted by a separate phenomenon. However, in purchasing real estate with a mortgage or a loan, it is but a single phenomenon, the acquisition of property, that gives rise to conflicting emotions. Thus, Tosafot, Sukkah 46a, rule that she-heḥeyanu is not recited at the time of circumcision because, although fulfillment of the mizvah gives rise to joy, the selfsame act also causes pain to the infant. Hence, concludes Be'er Mosheh, it cannot be said that the purchase of property encumbered by a mortgage gives rise to pleasure mandating a blessing. Be'er Mosheh, of course, accepts the premise, as did Lev Hayyim, that the she-heḥeyanu blessing pronounced upon acquisition of property reflects pleasure experienced in the acquisition. Ẓiz Eli'ezer, however, vigorously dismisses Lev Hayyim's observation that \"this blessing is ordained solely because of joy of the heart\" and declares that the blessing \"is not contingent upon joy but rather upon… benefit.\" Thus, for Ẓiz Eli'ezer, the fact that the joy of acquisition is vitiated by sadness or distress presents no problem whatsoever. According to Ẓiz Eli'ezer, the she-heḥeyanu blessing is an acknowledgment of an objective benefit and the attendant emotional state is irrelevant.",
+ "R. Joseph Shalom Eliashiv is quoted as espousing an intermediate position. Rabbi Eliashiv notes that no purchase represents an unmitigated pleasure since expenditure of funds to finance the purchase perforce represents an unwelcome diminution of liquid resources. Nevertheless, on balance, the purchase brings pleasure. Assumption of a mortgage is unwelcome in the same sense that expenditure of funds is unwelcome. Indeed, it is unwelcome precisely for the sole reason that it constitutes incurrence of an obligation for future expenditure of funds. Expenditure of funds, either present or future, does not negate the pleasure experienced in the purchase. However, rules Rabbi Eliashiv, if the purchaser has reason to suspect that he will not be able to make mortgage payments in a timely manner, which in turn will lead to loss of the property upon resultant foreclosure, the blessing should not be recited. Under such circumstances, contends Rabbi Eliashiv, the stress and anxiety engendered by the prospect of possible loss of the property mitigates the pleasure to such an extent that the blessing is not warranted.",
+ "Rabbi Eliashiv's reported ruling against recitation of the blessing in instances of fear of foreclosure appears to this writer to be somewhat problematic. On the basis of a discussion of the Gemara, Berakhot 54a, Shulḥan Arukh, Oraḥ Hayyim 224:4, rules that a person who finds abandoned property must recite the she-heḥeyanu blessing even in circumstances in which the monarch, should he hear of the incident, will seize the property. The fear of seizure of the property by the king seems to be no less cogent than the fear of foreclosure by the creditor that is described by Rabbi Eliashiv. As explained by Rabbenu Yonah in his comments on the Rif, Berakhot 54a, and by Rambam in his Commentary on the Mishnah, loc. cit., the underlying principle is that the joy at acquiring the abandoned property necessitates a blessing and that obligation is not nullified because of fear of some future reversal of the cause of joy or benefit.",
+ "There is yet another consideration that should be noted. The she-heḥeyanu blessing is recited at the time of acquisition only in circumstances in which benefit from the object can be derived immediately. Thus, the blessing upon purchase of a garment requiring alterations is not recited at the time of acquisition but is delayed until the first time the garment is worn. Accordingly, R. Akiva Eger, Oraḥ Hayyim 223:3, questions whether the blessing should be recited at the time of purchase of a house or whether it should be delayed until the mezuzot have been affixed since the purchaser is not permitted to live in or otherwise make use of the property until the mezuzot have been attached to the doorposts of the house. R. Akiva Eger's comment is cited by Mishnah Berurah, Sha'ar ha-Ẓiyun 223:21. The effect of R. Akiva Eger's observation is that, even when no debt is incurred, the appropriate blessing should not be recited at the time of the closing and transfer of title but delayed until the mezuzot are affixed.",
+ "Fish or Meat at a Brit Milah Repast?",
+ "Performance of certain mizvot, including circumcision, is traditionally accompanied by a celebratory meal. Hokhmat Adam 149:24 emphasizes that the repast should be a meal in the halakhic sense of the term, i.e., that it must be served with bread as distinct from a collation consisting of coffee or whisky and pastries or the like. He adds that a person who can afford a proper repast but seeks to economize by offering his guests less than usual \"does not act properly\" and that R. Elijah of Vilna protested against such behavior.",
+ "Hokhmat Adam strongly decries the conduct of those who fail to serve a proper meal in conjunction with a circumcision but falls short of a condemnation for failure to fulfill a statutory obligation. Indeed, the halakhic origin and status of the meal offered guests upon the occasion of a circumcision is a matter of some controversy. As recorded in Pirkei de-Rabbi Eli'ezer, chapter 29, rabbinic interpretation of the phrase \"beyom higamel et Yizḥak\" in the verse \"and Abraham made a great feast on the day Isaac was weaned\" (Genesis 21:8) establishes that Abraham made a \"great banquet\" on the day of his circumcision of Isaac. Although this rabbinic comment does not unequivocally establish a normative obligation, Sha'arei Teshuvah, Oraḥ Hayyim 551:33, cites one authority who maintains that the repast is \"a biblical mizvah.\" Sefer Haredim, chapter 40, section 3, records participation in a wedding banquet or a circumcision repast in his list of positive commandments derived \"from the words of Holy Writ and from the words of the scholars.\" Yam shel Shlomoh, Bava Kamma 7:37, similarly writes that, in contradistinction to the celebratory meal accompanying the redemption of a first-born son, the circumcision repast constitutes a mizvah and is predicated upon the verse \"I rejoice over your word like one who finds abundant spoils\" (Psalms 119:162). On the other hand, Teshuvot Bet Ya'akov, no. 73, declares that the status of the repast is rabbinic in nature while Bi'ur ha-Gra, Oraḥ Hayyim 640:6, states that the repast \"is not a biblical mizvah and there is no obligation of rejoicing.\" Magen Avraham, Oraḥ Hayyim 640:13, interprets Teshuvot Maharik, no. 178, as asserting that the meal represents \"a mere custom.\" Elsewhere, Oraḥ Hayyim 546:5, Magen Avraham declares that a circumcision repast does not entail \"rejoicing.\" However, Mordekhai, Mo'ed Katan, sec. 891, asserts that a mourner may not partake of a meal served in conjunction with a circumcision precisely because it involves rejoicing. That contention is based upon the interpretation by the Gemara, Shabbat 130a and Megillah 16b, of the verse \"I rejoice in Your word as one who finds great spoil\" (Psalms 119:162) as a reference to circumcision.",
+ "At present, it has become the practice to serve the celebratory meal early in the day immediately following the circumcision. At that early hour many people find it difficult to eat a heavy meal and hence the repast often features fish rather than meat. The question of whether the circumcision meal must include meat or whether fish or dairy dishes may be served in satisfying the requirement is posed by R. Alexander Eliezer Knopfler in the Tammuz 5758 issue of Or Yisra'el, published by Machon Or Yisra'el located in Monsey, New York. Responses by R. Abraham David Horowitz of Strasburg, R. Yitzchak Ya'akov Neiman of Montreal, R. Joseph Lieberman of Jerusalem, R. Gavriel Zinner of Brooklyn and R. Yochanan ha-Levi Woszner of New Square appear in the same issue. A brief comment by R. Yitzchak Tessler of Monsey appears in the Tishri 5759 issue of the same journal. The topic is also addressed by R. Elyakim Dworkes, Be-Shevilei ha-Halakhah, II (Jerusalem, 5752) as well as in his Be-Shevilei ha-Parashah (Jerusalem, 5762), Parashat Va-Yera. However, apart from additional bibliographic sources and several interesting anecdotal tidbits, those responses add little to the earlier succinct but comprehensive treatment of this topic by R. Moshe Bunim Pirutinsky included in his encyclopedic work on the laws of circumcision, Sefer ha-Brit (New York, 5733), 265:162. Many of the considerations and sources also pertain to the proper mode of satisfying the requirement of serving a festive meal in conjunction with fulfillment of other mizvot, particularly with the celebratory meals served during the post-nuptial week.",
+ "The question has its roots in the issue of whether or not there exists a requirement for eating meat in conjunction with the Yom Tov meal. As recorded by the Gemara, Pesaḥim 109a, during the period in which sacrifices were offered, the commandment to \"rejoice before the Lord your God\" (Deuteronomy 27:7) was fulfilled by males in partaking of the meat of peace-offerings to which reference is made in that verse. Tosafot, Yoma 3a, and Rabbenu Nissim, Sukkah 42b, maintain that, even during the days of the Temple, eating meat on Yom Tov was not an absolute requirement; rather, as characterized by Rabbenu Nissim, eating meat was merely the optimal mode of fulfilling the obligation. Citing a further statement of the Gemara, Pesaḥim 109a, Ritva, Kiddushin 3b, and Teshuvot Rashbash, no. 176, rule that, following the destruction of the Temple, \"there is no rejoicing other than with wine.\" On the other hand, Rambam, Sefer ha-Mizvot, mizvot aseh, no. 54 and Mishneh Torah, Hilkhot Yom Tov 6:18, followed by Tur Shulḥan Arukh, Oraḥ Hayyim 529, regards the eating of meat on Yom Tov as mandatory even in our day. Among latter-day authorities, Magen Avraham, Oraḥ Hayyim 696:15, states that, subsequent to the destruction of the Temple, there is no obligation to eat meat on festivals. That statement is, however, contradicted by two other comments of the same authority, Magen Avraham, Oraḥ Hayyim 249:6 and Oraḥ Hayyim 529:3, in which he affirms the existence of such an obligation even in our day.",
+ "Yam shel Shlomoh, Beizah 2:5, develops the thesis that every joyous repast requires meat but that, subsequent to the destruction of the Temple, there is an additional requirement to drink wine in order to dispel melancholy. Magen Avraham, Oraḥ Hayyim 249:6, cites Maharam of Lublin who maintains that the \"mizvah of rejoicing [on the occasion] of a circumcision cannot be fulfilled with dairy dishes.\" R. Jacob Emden, Migdal Oz, naḥal 9, sec. 17:3, declares that both meat and wine must be served at a se'udat mizvah. Migdal Oz comments that a banquet is termed a \"mishteh,\" as in Genesis 21:8, because of the drink that is served. He assumes that the noun \"mishteh\" is derived from the verb \"shatoh,\" meaning \"to drink.\" Migdal Oz finds an allusion to partaking of meat in particular at a circumcision repast in Psalms 50:5 which he renders as \"those who enter into a covenant with Me by slaughter.\"",
+ "Torat Hayyim, Oraḥ Hayyim 551:26, draws attention to the ruling of Rema, Oraḥ Hayyim 551:10, to the effect that during the week in which the ninth of Av occurs no more than ten persons are permitted to eat meat or drink wine on the occasion of a se'udat mizvah. Torat Hayyim argues that, were it possible to satisfy the requirements of a se'udat mizvah in some other fashion, it would not be necessary to modify the restriction against eating meat during the period of mourning even to the extent of permitting a bare quorum of ten to partake of meat. The clear implication is that Rema regards the eating of meat as intrinsic to the nature of a se'udat mizvah.",
+ "The compiler of Zemirot Divrei Yo'el (New York, 5750), Brit Milah, sec. 205, reports that the late Satmarer Rebbe, Rabbi Joel Teitelbaum, was once present at a brit at which dairy food was served. In answer to the Satmarer Rebbe's query with regard to the lack of meat the father informed him that he could not afford the additional expense of a meat meal. The Satmarer Rebbe is reported to have responded that, had he been aware of the need, he would himself have provided sufficient funds for \"a complete meal of fish and meat.\"",
+ "R. Shimon Konitz, Ot Brit 265:14, indicates that the practice of serving dairy dishes in conjunction with a circumcision developed on the basis of reliance upon the position of Rif and Rosh who maintain that, subsequent to the destruction of the Temple, meat is not integral to the obligation of rejoicing. Ot Brit, however, does insist that the drinking of wine is obligatory on such occasions. This is also the position of R. Abraham Anshel Grunwald, Zokher ha-Brit 25:9.",
+ "The Gemara, Ta'anit 30a, declares that salted meat may be eaten on the day preceding the ninth of Av on the grounds that partaking of preserved meat does not give rise to \"rejoicing.\" It would then follow that, for purposes of a se'udat mizvah, delicatessen is no more appropriate than are dairy dishes. However, Tosafot, ad locum, declare that \"in our times,\" since we are accustomed to eat meat that has been preserved for a lengthy period of time, such meat is prohibited in the period preceding the ninth of Av. Accordingly, notes Rabbi Pirutinsky, \"perhaps\" such meat may appropriately be served at a brit or other se'udat mizvah.",
+ "The Gemara, Haggigah 8a, declares that the meat of fowl may not be used to satisfy the requirement of the Yom Tov repast. Two separate opinions are adduced by the Gemara in support of that exclusion. The first is based upon rabbinic exegesis establishing that only meat of a species from which the festival sacrifice may be brought can be used to satisfy the obligation of rejoicing. The second opinion, recorded in the name of Rav Ashi, declares simply that there is no \"rejoicing\" in the consumption of the meat of fowl. Rabbi Pirutinsky insightfully notes that, according to the first opinion, there is no reason to assume that partaking of fowl does not engender happiness and rejoicing; fowl are excluded from use in fulfilling the Yom Tov obligation for an entirely different reason having no bearing upon utilization of fowl in conjunction with a se'udat mizvah. However, according to the second opinion, fowl do not serve to generate happiness or rejoicing and hence are no different from dairy dishes insofar as a se'udat mizvah is concerned.",
+ "These various sources notwithstanding, serving meat at a brit was far from a universal practice even in previous generations. R. Moshe Sofer, Teshuvot Hatam Sofer, Oraḥ Hayyim, no. 69, was consulted with regard to the propriety of serving dairy dishes at a brit milah performed on the Sabbath. The inquiry was prompted by an interesting set of circumstances. The community in which the brit was to be performed regularly conducted the morning service at an early hour in order to complete the service before expiration of the period in which the shema must be recited. They then assembled again later in the morning for the musaf service. The issue was whether or not it was appropriate to partake of a meal prior to recitation of the musaf service. The interlocutors preferred to serve the se'udat mizvah at an early hour because they would be expected to present \"fish and meat\" at a meal served on Shabbat at a later hour and they did not wish to incur that expense. Hatam Sofer permitted the practice precisely because only dairy food was to be served, Hatam Sofer ruled that a meal featuring only dairy dishes does not constitute the type of meal prohibited before musaf even when those foods are accompanied by bread. He also stipulated that wine not be served. It is thus evident that Hatam Sofer did not regard either meat or wine as de rigeur at a se'udat mizvah.",
+ "There are also reports in a number of sources, including Brit Avot in the name of Erez ha-Hayyim, Yoreh De'ah, p. 95, as well as Zokher ha-Brit, Hilkhot Milah 25:7, indicating that R. Nissim Azulai, author of Shulḥan ha-Tahor al Taryag Mizvot, promulgated a formal edict in Safed forbidding the presentation of foods other than fish at the repast served in conjunction with a brit. His stated reason was a desire to prevent embarrassment of those who could not afford more expensive dishes.",
+ "These authorities may have relied upon the position of the decisors who maintain that, in our day, meat is not a sine qua non of \"rejoicing.\" However, it is unlikely that this was the rationale underlying Hatam Sofer's ruling since he also dispenses with the requirement regarding the drinking of wine. Alternatively, it may be the case that these authorities maintained that \"rejoicing\" is not a concomitant of the repast accompanying a circumcision. Hatam Sofer's disciple, R. Moshe Schick, Teshuvot Maharam Shik, Yoreh De'ah, no. 366, citing Magen Avraham, Oraḥ Hayyim 546:5, adduces the latter consideration as an apologia (limmud zekhut) for those who serve dairy dishes rather than meat on such occasions.",
+ "As noted earlier, the practice of serving a festive meal in conjunction with a brit is derived from the verse \"And Abraham made a great feast on the day that Isaac was weaned\" (Genesis 21:8). Pirkei de-Rabbi Eli'ezer understands the Hebrew \"higamel\" (literally: he was weaned) as a combination of the letters \"heh\" (having the numerical equivalent of five) and \"gimmel\" (having the numerical equivalent of three) and the word \"mal\" (meaning \"he circumcised\") which renders the entire verse as \"And Abraham made a great feast on the day 'heh gimmel' (having the numerical equivalent of eight) on which he circumcised Isaac.\" That comment is cited by Tosafot, Shabbat 130a, s.v. sas anokhi. Similar statements regarding a festive meal in conjunction with a brit are found in Midrash Tehillim, no. 112, and Yalkut Shim'oni, Parashat Lekh Lekha, no. 81. Indeed, the Gemara, Ketubot 8a, declares that inclusion of the phrase \"Let us praise our God in whose habitation there is joy\" in conjunction with recitation of Grace after Meals would have been required on such occasions if not for the fact that the circumcised child experiences pain.",
+ "Although the point is not made explicitly in earlier sources, it seems to this writer that, unlike the requirement of \"rejoicing\" on Yom Tov, which is obligatory, the festive repast accompanying fulfillment of mizvot such as circumcision and redemption of the first-born constitute a \"mizvah kiyyumit\" rather than a \"mizvah ḥiyyuvit,\" i.e., one who participates in such a repast fulfills a mizvah but nevertheless the repast is not mandatory in nature. This thesis is formulated by Shulḥan Gevoha, Yoreh De'ah 265:12, and accounts for the terminology employed by Shulḥan Arukh, Yoreh De'ah 265:12, in declaring, \"It is customary to serve a meal on the day of the circumcision\" as well as for the willingness of the authorities cited earlier in this discussion to rely upon permissive views with regard to the requirements for the repast.",
+ "Burial of a Non-Jew in a Jewish Cemetery",
+ "The influx of Russian immigrants to the State of Israel during recent years has given rise to a spate of heretofore rare halakhic problems. It is now conceded even by Israeli government officials that a significant proportion of those immigrants are not Jews and have no credible claim to be recognized as Jews. It is also beyond dispute that those immigrants are loyal citizens of the State of Israel, that they wish to identify themselves with the Jewish people and that many of them have served with distinction in the Israeli armed forces. Some have perished in the course of fulfilling military duties or as a result of terrorist activity. There have been reports of a number of instances in which family members have quite understandably sought to have such an individual buried in a Jewish cemetery, only to be rebuffed on the grounds that the departed relative was not a Jew. In one well-publicized case, the deceased was denied burial in a Jewish cemetery because he was not a Jew and denied burial in a Russian Orthodox cemetery because he was not a Christian.",
+ "This vexing problem becomes even more exacerbated when the deceased is a soldier killed in the course of military duty and the family seeks burial in a military cemetery. The argument that a person who sacrifices his life for the security of the State of Israel deserves to be buried in one of the military cemeteries strikes a resonant emotional chord. The halakhic aspects of that dilemma are surveyed by Rabbi Abraham Avidan, a former Rosh Yeshivah of Yeshivat Sha'alvim who presently serves as assistant to the Chief Chaplain of the Israeli Armed Forces. That discussion is presented in a contribution to the first volume of Oz (Sha'alvim, 5754), a publication devoted to halakhic issues pertaining to the \"armed forces, society, and security.\"",
+ "The Gemara, Gittin 61a, posits an obligation, at least under some conditions, to support the gentile poor, to assist the gentile sick and to inter the gentile dead in order to foster amicable and neighborly relations. That obligation does not, however, entail burial in a Jewish cemetery. Indeed, Rashi, in his commentary ad locum, emphasizes that the Gemara does not refer to burial in a Jewish cemetery. Ruth, in declaring her desire to join Naomi as a member of the Jewish faith declares, \"… where you shall die, I shall die, and there will I be buried\" (Ruth 1:17). This statement reflects Ruth's awareness that burial in Jewish cemeteries is reserved to Jews.",
+ "The prohibition against burial of a non-Jew in a Jewish cemetery is based upon a more general prohibition against burial of individuals of disparate degrees of religiosity in close proximity one to another. Thus, Shulḥan Arukh, Yoreh De'ah 362:5, rules that, not only is it prohibited to bury a wicked person next to a righteous individual, but it is also forbidden to inter a merely \"righteous\" individual next to a person of \"extraordinary piety.\" Teshuvot Hatam Sofer, Yoreh De'ah, no. 341, cites Rashi, Sanhedrin 46a, in establishing that this stricture has the status of a biblical commandment in the nature of a halakhah le-Mosheh mi-Sinai, a law transmitted orally to Moses at Sinai.",
+ "Rabbi Abraham I. Kook, Da'at Kohen, no. 201, explains that it is not proper to bury non-Jews in a Jewish cemetery for two reasons: 1) Individuals of disparate spiritual attainments, e.g., a righteous person and a wicked individual, may not be buried together. 2) Shiltei ha-Gibborim, in his commentary on the sixth chapter of Sanhedrin, asserts that cemeteries are imbued with the sanctity of synagogues and hence may be used solely for their designated purpose, viz., burial of Jewish bodies. No other benefit may be derived from consecrated ground. There is, however, considerable controversy with regard to whether the sanctity of a synagogue is biblical or rabbinic in nature. If the latter is the case, it follows that the second prohibition against interring a non-Jew in a Jewish cemetery is rabbinic rather than biblical.",
+ "The distinction in the severity of these two prohibitions opens the door to a possible amelioration of the problem earlier described. Baḥ, Yoreh De'ah 151, s.v. asur, remarks that \"Although there is no doubt that a gentile may not be buried next to a Jew, nevertheless, if gentiles are found murdered together with a Jew, they may be buried in a Jewish burial ground together with the dead of Israel in a single courtyard because of the paths of peace (darkei shalom).\" R. David Zevi Hoffmann, Teshuvot Melammed le-Ho'il, Yoreh De'ah, no. 129, draws the obvious implication from the words of Baḥ, namely, that a Jew or a non-Jew may not be buried side by side but that, at least in the circumstances described by Baḥ, they may be buried in the same general area.",
+ "The problem that remains is two-fold in nature: 1) Why is it ordinarily not permissible to bury a Jew with a non-Jew in a common courtyard? 2) If such interment is ordinarily forbidden, why is the prohibition suspended for purposes of promoting good relations?",
+ "Rabbi Avidan explains that the matter is readily understood on the basis of the two separate prohibitions posited by Rabbi Kook. The biblical prohibition is limited to burial of a Jew and a gentile in close proximity to one another. That prohibition is not suspended even to promote the \"paths of peace.\" Burial in the same courtyard, i.e. in the same cemetery, but at some distance from one another, is prohibited by virtue of the fact that the cemetery is consecrated ground. That prohibition, however, declares Da'at Kohen, is rabbinic in nature and is suspended in the interests of darkei shalom. This explanation is, of course, predicated on the assumption that Baḥ maintains that the sanctity associated with cermetery grounds is rabbinic in nature.",
+ "Gilyon Maharsha, Yoreh De'ah 345:4, rules that the distance separating the grave of a righteous person from the grave of a wicked individual must be eight ells. However, Rabbi Shlomoh Kluger, Teshuvot Tuv Ta'am va-Da'at, Mahadura Telitai'i, II, no. 253, requires that a fence be erected to separate the graves. In support of that position, Tuv Ta'am va-Da'at observes that the Gemara, Sanhedrin 47a, reports that separate cemeteries were established for different categories of persons executed for capital trespasses. Apparently, then, mere separation does not suffice to separate a person guilty of a more serious misdeed from one guilty of a less serious infraction; rather, the separation must be in the form of a physical barrier. Tuv Ta'am va-Da'at also cites the verse \"and the curtain shall separate unto you between the holy and the holy of holies\" (Exodus 27:33) as indicating that, when \"separation\" is required, mere physical separation is not sufficient but that the separation must be in the form of a physical barrier. Accordingly, if a physical barrier is required between the \"holy\" and the \"holy of holies,\" a fortiori, a physical barrier must be required in separating the wicked from the righteous. Da'at Kohen similarly requires that a fence be erected between Jewish graves and non-Jewish graves. Da'at Kohen, however, advances a far more prosaic reason for erection of a fence, viz., in the absence of a fence clearly demarcating the non-Jewish section, it is possible that, with the passage of time, a non-Jew will be buried within the prohibited distance of eight ells from a Jewish grave.",
+ "On the basis of the ruling of Baḥ, there are grounds for permitting non-Jews to be buried within the confines of Jewish cemeteries despite the fact that the entire cemetery, including areas in which no body has yet been buried, is consecrated ground. However, since the entire cemetery is consecrated ground such interment may be permitted only when necessary to avoid enmity or ill-feeling. In light of the rulings of Tuv Ta'am va-Da'at and Da'at Kohen, the non-Jewish graves should be distanced eight ells from the area of Jewish graves and should be separated from Jewish graves by a fence ten cubits in height.",
+ "However, as Da'at Kohen himself states, the optimum solution would be, at the time of consecration of any new cemetery, to designate an area to be used for the burial of non-Jews and to surround that area with a fence. Since the non-Jewish area is ab initio not consecrated for Jewish burial, it will never be endowed with the sanctity of a synagogue and hence, with proper separation, non-Jews may be interred in such an area without qualm."
+ ]
+ },
+ "schema": {
+ "heTitle": "בעיות הלכתיות עכשוויות, כרך ה",
+ "enTitle": "Contemporary Halakhic Problems, Vol V",
+ "key": "Contemporary Halakhic Problems, Vol V",
+ "nodes": [
+ {
+ "heTitle": "הקדמה",
+ "enTitle": "Preface"
+ },
+ {
+ "heTitle": "מבוא",
+ "enTitle": "Introduction"
+ },
+ {
+ "heTitle": "פרק א: הידיינות משפטית ובוררות בפני גוי",
+ "enTitle": "Chapter I Litigation and Arbitration before Non Jews"
+ },
+ {
+ "heTitle": "פרק ב: שמירת סודיות על ידי רבנים",
+ "enTitle": "Chapter II Rabbinic Confidentiality"
+ },
+ {
+ "heTitle": "פרק ג: קיום מצוות בקטבים ובמסלול סביב כדור הארץ",
+ "enTitle": "Chapter III Mizvot in the Polar Regions and in Earth Orbit"
+ },
+ {
+ "heTitle": "פרק ד: שימוש במערכות פיקוח בשבת",
+ "enTitle": "Chapter IV Use of Surveillance Systems on Shabbat"
+ },
+ {
+ "heTitle": "פרק ה: שימוש במשיבון בשבת",
+ "enTitle": "Chapter V Use of Automatic Telephone Answering and Fax Machines on Shabbat"
+ },
+ {
+ "heTitle": "פרק ו: שאלות שבת נוספות",
+ "enTitle": "Chapter VI Further Shabbat Questions"
+ },
+ {
+ "heTitle": "פרק ז: בעיית טרפה בחלב",
+ "enTitle": "Chapter VII The Milk Contretemps"
+ },
+ {
+ "heTitle": "פרק ח: כשרות הוויסקי",
+ "enTitle": "Chapter VIII The Whiskey Brouhaha"
+ },
+ {
+ "heTitle": "פרק ט: כשרות",
+ "enTitle": "Chapter IX Kashrut"
+ },
+ {
+ "heTitle": "פרק י: הכותבה",
+ "enTitle": "Chapter X The Ketubah"
+ },
+ {
+ "heTitle": "פרק יא: שאלות הקשורות לביטוח",
+ "enTitle": "Chapter XI Insurance Related Questions"
+ },
+ {
+ "heTitle": "פרק יב: כוהנים וטיסות היוצאות מישראל",
+ "enTitle": "Chapter XII Kohanim and Flights Leaving Israel"
+ },
+ {
+ "heTitle": "פרק יג: כתיבת ספר תורה בהדפסת משי",
+ "enTitle": "Chapter XIII Silk Screened Torah Scrolls"
+ },
+ {
+ "heTitle": "פרק יד: שונות",
+ "enTitle": "Chapter XIV Miscellaneous"
+ }
+ ]
+ }
+}
\ No newline at end of file