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+{
+ "language": "en",
+ "title": "Contemporary Halakhic Problems, Vol VI",
+ "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 ו",
+ "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.",
+ "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 Rabbi Moshe Shapiro, Mr. Zalman Alpert and Mr. Zvi Erenyi of the Mendel Gottesman Library for their constant helpfulness; to Mrs. Racheline Habousha of the library of the Albert Einstein College of Medicine for her unfailing graciousness in expediting my many requests; to Professor Richard White for making his scholarly expertise available at all times; to my secretary at the Benjamin N. Cardozo School of Law, Miss Kaaron Saphir, for her patience and understanding; to Mr. Erik L. Wilson for his assiduous assistance in my research and for his work on the index of this volume; to my esteemed friend, Mr. Ernest Grunebaum, for noting typographical errors in earlier publications of this material; and most especially to my granddaughter Hadassah Gurwitz whose thorough and meticulous proofreading and incisive observations have spared this work from many inadvertent errors; and last, but certainly not least, to my students for their relentless and provocative questioning.",
+ "My gratitude to the publisher of this series, the indefatigable Mr. Bernard Scharfstein, for his unfailing indulgence, good humor and patience as well as for his warm friendship spanning the decades of our relationship; my thanks also to Adam Bengal of Ktav Publishing House and Janice Weiss of TypeWorks for their painstaking efforts in shepherding the manuscript through the various stages of 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": [],
+ "Prelude": [
+ "\"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 Torture and the Ticking Bomb": [],
+ "Chapter 2 Sacrificing the Few to Save the Many": [],
+ "Chapter 3 In the Wake of Birkat ha Hammah 5769": [
+ "Lift up your eyes on high and see: who created these? He who brings out their host by number, calling them all by name; by the greatness of His might and because He is strong in power not one is missing.",
+ "ISAIAH 40:26",
+ "\"There is nothing new under the sun\" (Ecclesiastes 1:9). The world in which the sun began its 207 28-year cycle is not new, but it is certainly vastly different from the world as it was at the beginning of earlier cycles within both human memory and recorded history. Heretofore, Birkat ha-Hammah was a little-noted event, marked by the otherwise observant but of only passing curiosity—if that—to others, and of no interest at all beyond the Jewish community. This time the event was celebrated in communities throughout the world by large assemblies of Jews and, in many locales, by throngs numbering in the thousands. Unlike former occasions, the media, including wire services, conducted interviews and published articles heralding the event. In preparation for the last such event in 1981 more Hebrew-language publications dealing with Birkat ha-Hammah appeared than in all of prior Jewish literary history. This time, in addition to expanded and enhanced editions of many of those works, a host of compendia and monographs were published well in advance of the event. Clearly, both interest in, and observance of, Jewish ritual in general, and of Birkat ha-Hammah in particular, are far more intense than in years gone by.",
+ "Birkat ha-Hammah 5769 was an event virtually without precedent. The sheer number of individuals who gathered in synagogues, plazas, public places and even beaches to recite the blessing was phenomenal. From the earliest recitation of Birkat ha-Hammah in New Zealand, the event was observed over a period of close to twenty-five hours both in metropolitan centers and in far-flung communities throughout the world.",
+ "The tremendously enhanced interest in, and observance of, Birkat ha-Hammah as compared even to the last such event twenty-eight years ago may be attributed to a number of technological, scholarly and socioreligious developments:",
+ "(1) Technology. The impact of computer and internet technology was forcefully impressed upon me during the period that elapsed between the appearance of the first impression of my revised and expanded Bircas haChammah and the second impression published only a few weeks later. Following the publication of Bircas haChammah in 5741, I was pleasantly surprised by the number of written responses I received during the ensuing months and years. Readers noted typographical errors, academics wrote with queries, rabbinic scholars shared insights, and bibliophiles pointed out additional obscure sources. But I was unprepared for the avalanche of communications that followed the appearance of Bircas haChammah in 5769. This time the medium was not the postal service but the computer. The sheer volume was overwhelming and, unfortunately, time did not permit an immediate response to each interlocutor. Undoubtedly, the ease and rapidity of e-mail played a significant role in fostering such extensive interaction.",
+ "(2) Scholarship. Remarkable was not only the increased volume of communications but also the marked change in quality and content. I received a significant number of lengthy and detailed questions and comments from individuals, and several from groups of kollel scholars both in this country and in Israel, engaged in collaborative study of the topic. Both the tenor and content of those communications testify to the worldwide burgeoning of a community of serious and erudite \"lomdishe\" scholars. I was awed and impressed. Akhshar dara. Barukh she-higi'anu la-zman ha-zeh!",
+ "(3) Socio-religious phenomena. The phenomenally large numbers of people who participated in gatherings for recitation of Birkat ha-Hammah was recorded in the media and confirmed by photographic illustrations. The media also focused upon non-traditional, deviationist and secular environmentalist groups who, seemingly, sought to turn this religiously mandated observance into a happening. The initial reaction of many—myself included—was to dismiss such efforts as sheer trivialization, bandwagoning, or a public relations ploy. But that is far too simplistic. Birkat ha-Hammah may sometimes have been trivialized in those quarters but it was not entirely misunderstood. The advent of the event struck a responsive cord in so many who long both for authentic religious experience and for expression of such experience in meaningful ritual. Responsible religious leaders should recognize those responses as reflective of a deep yearning and redouble their efforts to transmute those cravings into authentic observance of Torah and mizvot.",
+ "I. Birkat ha-Hammah Literature: Old and New",
+ "The months leading to Birkat ha-Hammah 5769 saw the republication of the classic monographs authored by R. Pinchas Zelig Schwartz, Yizraḥ Or (Nagyvarad, 5685; reprinted, New York, 5712, 5741, and 5769) as well as by R. Yechiel Michel Tucatzinsky, Tekufat ha-Hammah u-Birkhatah (Jerusalem, 5685; revised editions, 5713, 5741 and 5769). R. David Meldola's Boker Yizraḥ (London, 5601; reprinted Czernowitz, 5627 and 5652; and Jerusalem 5679) was also reprinted together with R. Yekuti'el Kamelhar's Sha'arei Mizraḥ (Cracow, 5656). Or ha-Hammah: Nizozei Or by R. Mordecai Kahane was republished in a pamphlet detailing the customs of the Spinka dynasty bearing the title Seder Birkat ha-Hammah. The encyclopedic compendia Birkat ha-Hammah ke-Hilkhatah (Jerusalem, 5741; revised edition, 5769) authored by R. Menachem Gerlitz and Birkat ha-Hammah: Halakhot u-Minhagim ha-Shalem (Jerusalem 5741; revised edition, 5769) authored by R. Zevi Cohen appeared in greatly enhanced and expanded editions. R. Gavriel Zinner also published an enlarged edition of his Nit'ei Gavri'el: Hilkhot Birkat ha-Hammah (New York, 5741; revised edition 5769). This author's English-language Bircas haChammah (Brooklyn, 5741; revised edition 5769) was republished in an expanded edition.",
+ "In addition, Tovim Me'orot she-Bara (New York, 5741 and 5769), a collection of responsa on Birkat ha-Hammah culled from the works of latter-day rabbinic authorities by R. Shmu'el Yitzchak Roth, was reprinted. Also republished as a separate pamphlet under the title Seder Birkat ha-Hammah was the introduction of R. Betzalel ha-Kohen of Vilna to his Reshit Bikkurim with additional novellae on this subject by his brother, R. Shlomoh Ha-Kohen of Vilna, author of Azei Beroshim.",
+ "Several major new volumes appeared for the first time. Of particular interest are R. Aaron M. Brisk, Ozar ha-Zemanim: Tekufat ha-Hammah u-Birkhatah ( Monsey 5769); R. Yonah Buchsbaum, Kiddush ha-Hammah im Ẓizeha u-Peraḥeha (Jerusalem, 5769); R. Simchah Pinchas Strohli, Seder Kiddush ha-Hammah (Brooklyn, Shevat 5769; revised editions, Adar and Nisan 5769); R. Pinchas Zavichi, Ateret Paz (Jerusalem, 5768); R. Yehuda Herskowitz, The Sun Cycle (Monsey, 5769); and R. Chaim Rappoport, Seder Birkat ha-Hammah al pi Minhag Habad (Brooklyn, 5769). Recently published works on the tekufot and calendrical matters, Va-Yikhtov Mordekhai (Brooklyn, 5769), authored by R. Mordecai Schwimmer and Sha'arei Zemanim (Baltimore, 5768), authored by R. David Heber, include material pertinent to the cyclical nature of Birkat ha-Hammah.",
+ "Historical material, including reports of observances of Birkat ha-Hammah and discourses delivered on those occasions over a span of centuries, as well as astronomical and calendrical information, was compiled by R. Mordecai Genot in his intriguing Birkhat ha-Hammah bi-Tkufata (Bnei Brak, 5769). Another volume of historical interest, Ro'ei Shemesh (Jerusalem, 5769) is a compilation by R. Yehudah A. Horowitz of sermons delivered on the occasion of Birkat ha-Hammah by German rabbinic personalities.",
+ "Nor was there a dearth of articles, pamphlets and briefer discussions. A section of a volume of shi'urim of R. Nissim Karelitz, Hut ha-Shani (Bnei Brak, 5769), is devoted to a discussion of Birkat ha-Hammah. The excellent Torah journals Or Yisra'el (Nisan 5769 and Tammuz 5769) and Kol ha-Torah (Nisan 5769) featured articles pertaining to Birkat ha-Hammah. Pamphlets containing novellae regarding Birkat ha-Hammah were authored by R. Yitzchak Raitport and included in his Kuntres be-Geder Hovat Birkat ha-Pesaḥ; by R. Abraham E. Waxman in his Kuntres Tovim Me'orot; and by the late Klausenberger Rebbe in Be-Or ha-Hayyim: Birkat ha-Hammah. The booklet Birkat ha-Hammah published by Machon Barah ke-Chammah of Jerusalem, includes a précis of the laws of Birkat ha-Hammah according to Mishnah Berurah and Hazon Ish with the approbation of R. Chaim Kanievsky and a pamphlet entitled Yir'aukha im Shemesh published in Jerusalem by the Yated Ne'eman includes the practices of R. Yosef Shalom Eliashiv as reported by R. Yosef Efratti. A useful pamphlet, Sefer Yir'aukha im Shemesh, by the late R. Abraham Blumenkrantz contains astronomical information. Ha-Shemesh bi-Gevurato (Monsey, 5769) authored by R. Yosef Zalman Bloch presents a discussion of the astronomical premises postulated by the Sages. An extensive analytic discussion of the principles governing the Jewish calendar entitled \"Bircas HaChamah and Calendar Mathematics: Precision, Simplicity and Conflict,\" by Sheldon Epstein, Bernard Dickman and Yonah Wilamowsky appears in the online journal Hakirah, the Flatbush Journal of Jewish Law and Thought (Summer, 2008), pp. 147-195.",
+ "English-language inspirational literature includes Tomorrow's Sun by R. David Goldwasser and Once in Twenty-Eight Years by R. Moshe Goldberger. Indicative of the widespread interest aroused by observance of Birkat ha-Hammah this year was a publication addressed to children by R. Shimon Grama of Lakewood, N.J. entitled Understanding Birkat ha-Hammah its Laws and Customs. A 3D presentation depicting the solar system and clarifying details regarding Birkat ha-Hammah was prepared by R. Chaim S. Friedman. A version of this production was widely disseminated by the outreach organization Oorah. A series of Yiddish-language tapes dealing with both theoretical and practical aspects of Birkat ha-Hammah was distributed by Satmar institutions in Monsey, New York.",
+ "II. The Meaning of Birkat ha-Hammah",
+ "1. The Commandment to Love God",
+ "In the course of being interviewed by reporters, a significant number posed a single question to this writer: \"How is this ritual distinguishable from sun-worship?\" The question is age-old, yet it belies a shocking lack of understanding. As reported in the Tosefta, Berakhot 6:10, R. Judah decried recitation of Birkat ha-Hammah as \"derekh aḥeret,\" i.e., a form of idolatry. Centuries later, R. Chaim Joseph David Azulai, known as the Hida, Moreh be-Ezba, no. 6, sec. 190, as well as a number of subsequent authorities admonished either that aleinu not be recited or that care be taken to turn away from the sun lest the onlooker construe bowing in the course of the prayer as an act of obeisance to the sun.",
+ "Most certainly, Birkat ha-Hammah is not an act of sun-worship. But in the words of the simple son (no pun intended) voiced in the course of the Passover seder which in 5769 occurred on the evening following Birkat ha-Hammah: \"Mah zot—What is this?\" What is its import and why is there so much fanfare?",
+ "In its essence, Birkat ha-Hammah is a very simple blessing. In addition to the initial phrase, \"Blessed are You, O Lord, our God, King of the universe,\" the crucial formula that is the sine qua non of every berakhah, Birkat ha-Hammah consists of exactly three additional words: \"oseh ma'aseh bereshit—who makes the work of creation.\" That blessing, recited in a variety of different contexts, acknowledges God as the author of various extraordinary natural phenomena representing, as they do, divine creation of the universe in its entirety. In the case of Birkat ha-Hammah, it is a solar event that occasions the blessing.",
+ "Judaism exhibits a fascination bordering on a fixation with regard to matters of astronomy, astrology, and celestial phenomena. The vagaries of the Jewish calendar are only the tip of the iceberg. The prophet Isaiah exclaims, \"Lift up your eyes on high and see: who created these? He who brings out their host by number, calling them all by name; by the greatness of His might and because He is strong in power, not one is missing\" (Isaiah 40:26). The prophet marvels at the celestial creations, at the myriad bodies that were created in the heavens, each one having an assigned task and an assigned place. Isaiah notes that their Creator knows each and every one \"by name,\" i.e., by role and function, and pointing to that phenomenon, he constructs a cryptic, but succinct and compelling, proof for the existence of the Deity. Isaiah points to the continued existence of the celestial bodies in formulating an Argument from Design. The argument is predicated upon an awareness that the ongoing existence of the universe is directly contingent upon the size, position and velocity—not to speak of the centrifugal force—of each of the heavenly bodies. Had any one of those bodies been created possessing different mass or shape, or located in an alternate position within the firmament, or were the laws of nature not operative, the universe would long since have ceased to exist.",
+ "R. Isaac Abarbanel encapsulates this insight in a brief but insightful comment on the verse that declares, \"God beheld the universe and it was good\" (Genesis 1:18). If one may be so bold as to employ anthropomorphic language in paraphrasing Abarbanel: God looked at His handiwork and exclaimed \"Eureka! It works!\" Everything in creation fits together like the pieces of a cosmic jigsaw puzzle. If those components did not fit together precisely in the way they do, there would not be a universe. Thus, Judaism's fixation upon celestial matters, as I called it, is actually a fixation upon God as the bore olam—as the Creator of the universe.",
+ "Evidence of creation can be found simply by gazing at the heavens. \"Lift up your eyes on high and see,\" declares the prophet. That verse is not a declarative proposition; it is not a statement of fact. \"Lift up your eyes\" is an imperative; it is a command. The prophet is exhorting each and every one of us to look up at the sky; to ponder what we see; to ask \"who created these;\" to reflect upon their origin and nature; and bids us to recognize the greatness and majesty of God manifest in those phenomena.",
+ "The Sages expanded upon this relatively simple motif. The Gemara, Shabbat 75a, declares, \"Any person who is capable of calculating the equinoxes and the solstices, to plot and chart the movement of the celestial bodies comprising the zodiac but fails to engage in such calculations, of him the verse says, 'but the work of the Lord they do not regard and the work of His hands they do not see' (Isaiah 5:12).\" A person who is conversant with the fundamentals of astronomy but who fails to explore the ordered nature of the universe is remiss. This verse, as interpreted by the Sages, censures him for not engaging in that enterprise. What is it that the Sages are underscoring in this dictum? What halakhic obligation has this individual failed to fulfill?",
+ "The underlying notion is codified by Rambam, Hilkhot Yesodei ha-Torah 2:2, in a totally different context. In defining the thrust of the commandment \"And you shall love the Lord your God\" (Deuteronomy 6:5), Rambam, at least by implication, informs us that the mizvah does not command an emotion. It is exceedingly, and probably impossibly, difficult to command emotions directly. Sefer Haredim had a similar difficulty explaining the cogency of commanding love of a fellow human being. Accordingly, Sefer Haredim 1:28-29, defines the commandment requiring one to love his fellow as well as the commandment to love the proselyte as commandments requiring concrete physical acts. Rambam, Sefer ha-Mizvot, mizvot aseh, no. 3, as well as Hilkhot Yesodei ha-Torah 2:2, defines the mizvah \"And you shall love the Lord your God,\" in intellectual, rather than emotional, terms. A person fulfills the mizvah by intellectually recognizing the majesty of the Deity and the grandeur of His creation. Moreover, as elucidated by R. Ovadiah ben David, author of the unidentified commentary published together with that section of the Mishneh Torah, love is directly commensurate with knowledge: the greater the intellectual apprehension, the greater the love. Ahavah and yedi'ah, love and knowledge, become conflated into a single concept. As Rambam, Hilkhot Teshuvah 10:6, declares:",
+ "One loves the Holy One, blessed be He, only through the knowledge with which one knows Him. According to the knowledge is the love, if little, little and if great, great.",
+ "Rambam, Hilkhot Teshuvah 10:3, followed by Sefer Haredim 1:5, declares that such intellectual awareness generates an emotional state akin to lovesickness as described by King Solomon, Song of Songs 2:5. How does one come to know, and hence love, God? By apprehending His glory, grandeur and majesty. And how does one achieve such an awareness? By investigating the nature of the created universe, by studying the laws of nature that guarantee the cohesiveness of the universe. As stated by Rambam, Hilkhot Yesodei ha-Torah 2:2:",
+ "At the time that a person ponders His works and His great, wondrous actions and creations and sees from them His wisdom which has no measure or end, he immediately loves, praises and glorifies [God] and experiences a great yearning to know the great God, as David stated, \"My soul thirsts for the Lord, the living God\" (Psalms 42:3).",
+ "We can repeat like poll parrots that God is the Creator of the universe, that He is possessed of this, that and the other attribute, that the Deity is capable of x, y and z, but the fulfillment of the mizvah does not lie therein. A student can memorize the Pythagorean Theorem: a2 + b2 = c2. He can then employ that proposition in solving various mathematical problems involving triangles. But does the student necessarily understand why it is that a2 plus b2 equals c2? Does he further understand that not only does a2 + b2 equal c2 but that a2 + b2 must equal c2? The student has committed the proposition to memory. It invariably yields the correct answer. If it works, then good enough! That is the sum total of his knowledge. A bright, attentive, tenth grade geometry student who sits in class as each succeeding step in the proof of the Pythagorean Theorem is painstakingly demonstrated by the teacher suddenly experiences an exhilarating intellectual simḥah, an intense intellectual pleasure which comes, not from absorbing the factual information that a2 + b2 = c2, but from a sudden recognition that the Pythagorean Theorem is a necessary proposition, that a2 + b2 must equal c2, that the universe could not be ordered otherwise. That is far, far different, qualitatively and epistemologically, from merely being able to recall and repeat the bare fact. The latter ability represents a very low level of knowledge; understanding why it must be the case, is an entirely different level of knowledge.",
+ "As stated by Rambam, Sefer ha-Mizvot, mizvot aseh, no. 3, with regard to the mizvah commanding us to love God:",
+ "That is, that we reflect upon and ponder his mizvot and dicta and his works until we apprehend Him and delight in the ultimate degree of pleasure in apprehending Him. This is the mandatory love. In the words of Sifri: \"For it says, 'You shall love the Lord your God' (Deuteronomy 6:5). I do not know how to love God. Therefore, [Scripture] teaches, 'And these matters which I command you this day shall be upon your heart' (Deuteronomy 6:6). From that you will recognize He who spoke and the universe came into being.\" Behold we have explained to you that through reflection you will succeed in apprehension and achieve pleasure, and love will come necessarily.",
+ "Rambam declares that it is not belief in the existence of God or of His majesty and glory on the basis of faith that constitutes fulfillment of the commandment \"And you shall love the Lord your God\"; rather, it is the intellectual pleasure that is born of rational apprehension in which lies fulfillment of the mizvah. Understanding, and hence the ability to calculate, the precision of astronomical phenomena is one means of achieving such awareness.",
+ "Any person can tell you when the molad will occur, i.e., when the next new moon can be sighted. Consult a shul calendar; the information is succinctly presented, in black and white. If you seek information regarding the movement of the constellations of the zodiac, charts are readily available; look at the chart and the chart will provide the desired information. Does that mean that a person who uses a shul calendar or consults a chart understands why the molad occurs when it does or why the constellations move in certain patterns? Of course not. The factors governing such phenomena are quite difficult to grasp. A person must invest time and effort in an endeavor to understand such matters. When the Sages declare that a person who is a yode'a le-ḥashev tekufot u-mazalot, a person who is capable of making astronomical calculations but yet fails to do so is remiss, they refer to people who rely upon knowledge of the bare facts. That information can be found in books. Information regarding movements of the constellations, the dates of the solstices and equinoxes and the reappearance of the moon can be memorized. Does that mean that a person who has done so understands why it is that those phenomena occur when they do and why they could not occur at different times? Does that mean that he knows how to calculate the next tekufah himself? Or that he will be able to determine the day and hour of the molad of the next month and of the month subsequent and of the month after that? Not at all! Memorization of recorded facts pertaining to the past and to the present is not sufficient to predict the future. Inferences regarding the future can be extrapolated only if astronomical patterns of the past are analyzed and underlying rules are discovered. That understanding is the key to ascertaining future astronomical events. The Sages declared that the intellectually gifted have an obligation to study astronomy in all its aspects, to understand the phenomena upon which the calendar is based, and to apprehend the regularity of the natural order.",
+ "A person capable of mastering those principles is well-positioned to formulate Abarbanel's Argument from Design. The orderliness of the universe did not arise by chance; intelligent design points to the existence of a rational Creator. A person who arrives at a recognition of the existence of the Deity because he recognizes the handiwork of God in the rational structure of the complex order of nature knows that God exists, not because someone told him that such is the case, and not because he possesses a mesorah or tradition going back to Avraham avinu, but because he himself has demonstrated God's existence anew. Such a person has demonstrated to himself the existence of an intelligent First Cause on the basis of the regularity of the tekufot and mazalot. The Sages regarded that awareness as the optimum, the ideal. A person who has the requisite intellectual ability is required to engage in the scientific inquiry that will lead to such awareness. By no means is such inquiry a purposeless exercise; it is integral to the fulfillment of the mizvah \"And you shall love the Lord, your God.\" ",
+ "II. Three Categories of the Blessing",
+ "But how does this relate to the blessing \"oseh ma'aseh bereshit—who makes the work of creation\"? Shulḥan Arukh, Oraḥ Hayyim 227:1, rules that the blessing oseh ma'aseh bereshit is recited upon witnessing meteors or lightning and upon experiencing an earthquake or extraordinary winds. That is followed by Shulḥan Arukh's codification in Oraḥ Hayyim 228:1 of the provision of Halakhah requiring recitation of the same blessing upon sighting tall mountains, deep canyons or certain rivers and, finally, in the ruling in Oraḥ Hayyim 229:2, providing for recitation of the blessing upon sighting the sun at the beginning of every 28-year solar cycle as well as upon the occurrence of a number of other astronomical events. The blessing is recited upon observing various diverse phenomena but those phenomena seem to be divided by Shulḥan Arukh into different categories. Although the berakhah has but a single formula, it seems to this writer that there are three separate and distinct types of phenomena for which the blessing was ordained, each of which occasions the blessing for a different reason. Each category evokes praise of God as the Creator of the universe as evidenced in a different and distinct manner. In effect, although there is but one text, connotatively speaking, there are three distinct berakhot. Thus, Shulḥan Arukh's codification of the blessings in three separate chapters becomes readily understandable.",
+ "(1) A Historical Blessing",
+ "Perhaps the most self-evident is the category that includes high mountains and deep canyons. The threshold elevation of a \"high mountain\" or the threshold depression of a \"deep canyon\" is unclear. However, when I visited the Grand Canyon, I remember commenting that, although I do not know the precise depth of a canyon that serves to trigger the obligation, nevertheless, the Grand Canyon has a Brisker shi'ur, i.e, its depth is so extraordinary and wondrous that it serves to establish the obligation beyond cavil.",
+ "Why does one recite the blessing upon beholding the Grand Canyon, Mount Everest or the like? Neither the Grand Canyon nor Mount Everest was created recently. The National Parks Service did not engage in a project to gouge out a huge canyon in order to provide us with an opportunity for a berakhah. Halakhah presumes that the Grand Canyon has been in situ since creation and that is precisely why the berakhah was ordained. The berakhah recited upon beholding such a natural phenomenon is a blessing acknowledging what may be termed the historical phenomenon of ma'aseh bereshit. In observing the Grand Canyon one observes creation in all its wondrous grandeur. Of course, we constantly observe the phenomenon of creation. But when we gaze at the world about us we are jaded because we have observed exactly the same phenomena yesterday and the day before and, consequently, today's observation does not give us pause or really make an impression upon us. But when we see something extraordinary, a phenomenon that we do not experience on a regular basis, we are required to praise the Almighty for having created the universe at the very beginning of time because that extraordinary encounter causes us, or should cause us, to reflect upon its source. When pronounced on such occasions, the berakhah is a historical berakhah, i.e., a berakhah acknowledging an event that took place at the beginning of history.",
+ "The obvious parallel is the blessing zokher ha-brit that is recited upon witnessing the appearance of a rainbow. The blessing pronounced over the rainbow is clearly a \"historical\" berakhah, i.e., it commemorates a singular historical event. The rainbow seen today is hardly novel but it is a phenomenon identical to the rainbow that Noah beheld when he exited from the Ark after the waters of the Deluge receded. God swore to Noah that he would never again visit a flood upon mankind that would destroy all of human civilization and pointed to the rainbow in the sky as a sign of that covenant. The rainbow is designed to make man mindful of God's solemn promise not to permit rains to develop into a second Deluge. The blessing is \"historical\" in the sense that it commemorates God's oath to Noah.",
+ "This analysis of the nature of the blessing oseh ma'aseh bereshit on such occasions serves to illuminate one aspect of the halakhah governing its recitation. The blessing is recited each time one visits the Grand Canyon or Mount Everest—but only if thirty days have elapsed since it was last seen by that individual. A person who lives in a home overlooking the Grand Canyon and wakes up every morning to the sight of this deep and wondrous chasm becomes desensitized very quickly. We walk into the street and look up at the sky, glance down at the grass growing in the lawn or observe the water flowing in a brook and it makes no impression upon us. We do not give such an experience a first, let alone a second, thought. The commonplace is unremarkable. A person who has the Grand Canyon as his neighbor reacts no differently. But if a person has not seen the Grand Canyon for thirty days, and suddenly it appears before him, he becomes, or should become, overwhelmed by the realization of the wondrous nature of the feat God performed in fashioning the canyon as part of His majestic universe.",
+ "(2) A Contemporaneous Blessing",
+ "There is also a second category of phenomena that occasion the blessing oseh ma'aseh bereshit. The text of the blessing is the same, but it is pronounced upon witnessing an entirely different type of phenomenon and acknowledges an entirely different aspect of creation. Upon witnessing lightning one is required to praise God as He \"who makes the work of creation.\" On such occasions the blessing praises God, but not for having created lightning in the primordial era. The lightning we observe today was not created 5772 years ago. The lightning is created precisely when we observe it; it is being created before our very eyes. The blessing we pronounce acknowledges the present nature of the creation of that phenomenon. The Sages anticipated that when we witness such an event it will evoke in us the realization that only the Almighty is capable of such a feat. The realization is a form of religious experience and it can be an extremely intense religious experience.",
+ "A type of experience that William James does not describe in his Varieties of Religious Experience is one that I had in my youth, an experience that was one of the most powerful spiritual moments of my life. I was all of sixteen years old taking a freshman course in college biology. Following the directions of the laboratory instructor, I took a little piece of a leaf, placed it on a slide and inserted the slide under a microscope. Lo and behold, there, under the microscope, chloroplasts were chasing each other, round and round, back and forth, in the leaf. The experience was vivid and exhilarating. Photosynthesis was no longer an intellectual abstraction accepted on the authority of a textbook or on the basis of the testimony of botanists. The microscope became a window through which one could observe ma'aseh bereshit.",
+ "The Sages did not ordain that the blessing oseh ma'aseh bereshit be pronounced upon observing such a phenomenon under a microscope. It is questionable whether they did not do so because of the general principle that Halakhah does not take cognizance of sub-clinical phenomena or simply because they had no microscopes. I have no doubt whatsoever that, logically, absent such considerations, if one should be prompted to recite a berakhah upon witnessing lightning, a fortiori, one should feel compelled to recite a blessing when observing that phenomenon as well. The spiritual thrill, the intellectual joy, experienced in gazing upon chloroplasts dancing within a leaf is certainly much, much more powerful than is experienced in watching the zigzag of lightning in the sky. A person who has had no first-hand experience of such an event is simply missing an Erlebnis; it is something that one must experience in order to appreciate. The blessing pronounced upon witnessing lightning and the like may be categorized as a \"contemporaneous\" blessing in the sense that it is a blessing acknowledging God as Creator in the here and now.",
+ "In both of those guises the blessing oseh ma'aseh bereshit is designed to underscore the notion that there is no sharp distinction between the miraculous and the natural. Nes, or miracle, and teva, or nature, are two sides of the same coin. Ramban, in numerous passages in his Commentary on the Pentateuch, eloquently formulates a distinction between a nes nistar, or a hidden miracle, and a nes nigleh, or an open miracle. The miraculous nature of hidden miracles is obscured by virtue of the fact that to the beholder the result appears simply as the manifestation of natural occurrences. Open miracles are perceived as the suspension of the natural order. Perhaps even more emphatic are the comments of R. Meir Simchah of Dvinsk, Meshekh Hokhmah, Parasḥat Beḥukotai. Meshekh Hokhmah comments that miracles are not designed as ends in themselves; on the contrary, a nes is entirely instrumental. Miracles are designed to impress upon us that all of teva is a nes; nature is miraculous; the natural order is the greatest of all miracles. The temporary suspension of that order is designed to make us realize that the order and regularity of nature is born of divine decree and subject to divine will. The problem for mankind is that we have become desensitized. Every day the sun rises in the east and sets in the west. We take that for granted, with the result that such phenomena no longer strike us as wondrous. From time to time it is necessary for us to be jolted out of our intellectual complacency. Observation of an extraordinary phenomenon is an occasion to be reminded that miracles are built into the principles governing the universe as variations in the regularity that is the hallmark of nature. Miracles are designed to impress upon us that, in reality, teva is the greatest of all miracles. That is why, declares Meshekh Hokhmah, \"one who recites hallel ha-gadol every day commits blasphemy\" (Shabbat 118b). If a person recites hallel every day it is because he feels he must give thanks for what he perceives as miracles performed on his behalf on a daily basis. But God does not perform overt miracles on a daily basis; He does not disturb the laws of nature with any frequency. To presume that He does so is a form of blasphemy. But at the same time we are charged with recognizing that nature itself is miraculous. That is why, explains Meshekh Hokhmah, a person who recites ashrei thrice daily is assured of a share in the World to Come (Berakhot 4b). The omnipotence, grandeur and majesty of God is manifest in the ordinary, but regular and ongoing, phenomena described in ashrei: \"You give them their food in due season. You open your hand and satiate every living creature with favor\" (Psalms 145:15-16). Recitation of ashrei serves to acknowledge that the phenomena we regard as natural, ordinary and run of the mill are really miracles wrought by God.",
+ "Ba'alei mussar, masters of the mussar movement, seized upon that notion in offering a resolution of the classic question posed by Bet Yosef with regard to the observance of Chanukkah. Why do we kindle the menorah each of the eight days of Chanukkah? The Maccabees found suitable oil sufficient for one day. If we commemorate the miracle of the cruse of oil it should be sufficient to kindle the menorah on seven consecutive evenings. Since there was enough oil for the first day, the lamps of the menorah in the Temple burned quite naturally on the first day. If so, what miracle is commemorated in lighting the Chanukkah menorah on the first day? To this the ba'alei mussar answered that, of course, the Sages ordained the days of Chanukkah in commemoration of the miracle of the cruse of oil. But lest one think that it is only a miracle that occurs as an idiosyncratic event, as an ostensive violation of natural law, that requires celebration and acknowledgement of the power of God, they ordained an additional day designed to celebrate teva.",
+ "\"Let He who told oil to burn come and tell vinegar to burn\" (Ta'anit 25a). There is no inherent reason why oil must burn or why vinegar should not burn. Vinegar might burn as well as oil, or oil might not burn just as vinegar does not burn. God established the laws of chemistry and physics that make it possible for oil to support combustion and render it impossible for vinegar to do so. Those laws assure that both oil and vinegar will behave in an orderly, consistent and predictable manner. We take it for granted that oil will burn and vinegar will not. We tend to forget that the regularity of nature is nothing short of miraculous. Hence, we are in need of suitable occasions to have that verity impressed upon us. The kindling of the menorah on the first day of Chanukkah, according to the ba'alei mussar, was designed to convey that message globally, i.e., not only with regard to the combustible nature of oil but with regard to the laws of nature in their totality. The blessing oseh ma'aseh bereshit, when pronounced upon witnessing lightning, meteors, etc., forces us to reflect upon the nature of those infrequent occurrences and to recognize that those phenomena, novel and infrequent as they may be, are entirely attributable to the laws instilled in the universe by God.",
+ "Thus, there is but one formula in which the blessing is couched, but on differing occasions the blessing is pronounced to express recognition of one or another of the two distinct roles fulfilled by God as the Creator of the universe: 1) recognition of God as the author of creation as evidenced by remarkable primordial artifacts available for our observation; 2) acknowledgment of God as the source of the laws of nature which at times give rise to unusual and seemingly spontaneous phenomena.",
+ "(3) An Evocative Blessing",
+ "The blessing oseh ma'aseh bereshit is employed in yet a third manner. The third guise of the blessing is neither an acknowledgment of the wondrous, unparalleled historical event that the creation of the universe represents, nor is it a blessing acknowledging a present novel occurrence in the realm of nature; indeed, in its third form, the blessing is not occasioned by any extraordinary phenomenon at all. The blessing in its third form is employed to teach, to underscore and to reinforce the notion that God is, as He is described in the liturgy of the morning prayer, He who \"each day continuously renews the work of creation.\"",
+ "In order to appreciate the purpose and function of this third form of the blessing oseh ma'aseh bereshit, it is necessary to provide some elucidation of the doctrine reflected in the blessing. It seems to me that this description of God as the \"oseh ma'aseh bereshit\" is designed to teach what philosophers term the \"Doctrine of Continuous Creation\" or, sometimes, the \"Doctrine of Constant Conservation.\" At times, those terms are used interchangeably but they are not really synonymous. Rambam presents that doctrine in two separate places, in Hilkhot Yesodei ha-Torah 1:1-2 and in his formulation of the Thirteen Principles of Faith in his Commentary on the Mishnah, Sanhedrin, Introduction to Helek, the First Principle.",
+ "In Hilkhot Yesodei ha-Torah, Rambam writes:",
+ "The principle of all principles and the pillar of all wisdom is to know that there is a First Being; He brings every existing thing into existence; and all things that exist in heaven, on earth and in what is between them did not come into existence other than through the veracity of His existence. And if it could be conceived that He does not exist, no other thing could exist.",
+ "The first two clauses of that statement are entirely straightforward: God is the First Being and the Prime Cause of all that exists in the created universe. In the second of these clauses Rambam emphasizes that nothing in the celestial spheres or on earth could have come into existence other than through God's creative power. In his final statement Rambam makes an even more profound assertion: there can be no ongoing existence of created entities other than through the medium of God's eternal existence. Hence, were God not to exist, the continued existence of all things would be impossible. Rambam is declaring that creation is not a once in an eternity phenomenon. In a very real sense, creation takes place on a continual, continuous and ongoing basis. Were God to have created the universe and then gone on an eternal sabbatical by removing His existence, the universe could not have survived. The presence of God is needed in order to guarantee the continued existence of the universe.",
+ "In writing \"if it could be conceived that He does not exist,\" Rambam is not quite willing to concede that such a notion is actually conceivable. Rambam is asserting that, since God is a necessary Being, we cannot even conceive His non-existence because the non-existence of the Deity is, in effect, an oxymoron. Although that argument is not identical to Anselm's Ontological Argument for the existence of God, it certainly brings that proof to mind. Be that as it may, were we able to conceive of the eventuality of the non-existence of the Deity coming to pass, the universe itself would also cease to exist. It is the presence of God that makes possible the ongoing existence of the universe.",
+ "Rambam makes this point even more forcefully in his Commentary on the Mishnah in the course of developing the first of his Thirteen Principles. In addition to telling us simply that belief in the existence of the Deity is a fundamental principle of faith he continues with the statement:",
+ "He is the cause of the existence of all existing things; In Him is the continuity of their existence and from Him comes their endurance. Let the absence of His existence not occur to the mind, for in the absence of His existence the existence of all created things would be nullified and there would not remain any existing thing whose existence would endure.",
+ "That comment is simply an amplification of what Rambam says much more succinctly in the Mishneh Torah. Rambam here emphasizes that the existence of the Deity is necessary, not only because there must be a First Cause, but also because of God's role in the nature of a dynamo infusing the universe with existence.",
+ "One can perhaps best understand that concept in terms of modern phenomena. Consider electricity. I am neither a physicist nor an electrical engineer. Nevertheless, I have a rudimentary understanding of the nature of electricity. The generator must operate constantly if there is to be electricity. If one shuts down the generator, there is no longer an electrical current. One cannot simply create a quantity of electricity and then go on vacation expecting the stored electricity to continue to flow. A generator is necessary in order continuously to produce new electricity. \"Existence\" is created by the Almighty. Thus, according to Rambam's depiction of the role of God, God is not merely the First Cause of all existence; He is the ongoing cause of existence. Without His ongoing presence there could not be any existence whatsoever.",
+ "The Kalam philosophers presented the Doctrine of Continuous Creation in a very particular way. Rambam, in his Guide of the Perplexed, Part I, chapter 73, sixth proposition, reports that Kalam philosophers employed a notion similar to that of continuous creation in constructing a proof for the existence of the Deity. They asserted that the universe was not created from a substance that Jewish philosophers term \"ḥomer hiyuli,\" i.e., hylic substance or primordial matter, that is endowed with accidents. Those philosophers maintained that matter cannot exist without accidents and hence no entity could exist if God did not recreate accidents during every moment of existence. As a consequence of assuming that substance cannot exist without accidents, the Kalam philosophers concluded that, since by definition a hylic substance lacks accidents, the existence of a hylic substance is impossible.",
+ "The Kalam also accepted what the translators call an \"atomic\" notion of time, i.e., the notion that time is composed of discrete particles, or \"atoms.\" I prefer to use the term \"quantum\" notion of time rather than \"atomic\" notion of time. Based upon those two notions, Kalam philosophers asserted that cloth that is dyed black does not retain its color because the dye has penetrated the cloth; rather, the \"blackness\" of the cloth is an accident created by God when the black pigment comes into contact with the cloth. But the \"blackness\" is of no duration; God must repeatedly recreate blackness during every moment of time. Absent God's re-creation of accidents there would be nothing in existence except the underlying hylic substance, a notion they considered to be incomprehensible since they asserted that one cannot conceive of a material substance having no quality other than sheer existence.",
+ "The Kalam have a latter-day counterpart in the philosophy of René Descartes. Descartes presented a similar proof for the existence of the Deity predicated upon his conception of time. Descartes regarded time, not as a kind of wave or flow, or as a measure of motion, but as, literally, a fourth dimension made up of infinitesimal particles which have been termed \"quanta.\" The Cartesian notion of time gives rise to a serious problem. If the universe exists in time and if time is a series of discrete and unconnected quanta, how does any entity traverse time by moving from one time quantum to the next? A transportation system would be required to move physical entities from one such time quantum to the next. That transportation system is supplied by God. But how does He accomplish that feat? The notion that God drags physical entities across nothingness in incomprehensible. So what does God do in order to provide for the durability of the universe? God's solution, declares Descartes, is to recreate the universe in every moment of time. God recreates the universe in every quantum of time; He creates the universe anew every microsecond. The continued existence of the universe would be impossible without continuous divine re-creation. Thus, the very existence of the universe is a proof of the existence of God.",
+ "That proof of the existence of God is quite similar to the Kalam argument rejected by Rambam. Although not spelled out in that discussion in the Guide, Rambam was compelled to reject the Kalam argument, in part, because Rambam had a totally different notion of time. Rambam does not regard time as a created entity and certainly not as composed of atoms or quanta. According to Rambam, time is an accident of motion, and motion is an accident of matter. Even more fundamentally, as Rambam argues in his discussion of the Kalam theory, God, although he is the First Cause, created causal laws which, in turn, serve as a sufficient explanation for the duration of accidents. Accordingly, Rambam derisively dismisses the Kalam proof out of hand.",
+ "Rambam's rejection of the Kalam notion of constant creation is not a contradiction to his assertion, both in the Hilkhot Yesodei ha-Torah and in his Commentary on the Mishnah, of God's ongoing role in the preservation of the universe. First, and perhaps foremost, Rambam decries only denial of causality and the accompanying notion that accidents must be recreated, but makes no such statement with regard to ḥomer hiyuli.",
+ "Moreover, as I understand Rambam, he insists upon the Doctrine of Continuous Conservation while rejecting a Doctrine of Constant Creation. Although philosophers may obscure the issue by using the terms interchangeably—and I am also guilty of having done so in my book Bircas ha-Chammah—these are fundamentally two different and distinct doctrines. Rambam, in his Commentary on the Mishnah and in Hilkhot Yesodei ha-Torah, does not formulate a Doctrine of Continuous Creation; rather, he advances a Doctrine of Constant Conservation. According to Rambam, the universe may well have been created but once in all of eternity, but it requires the same amount of force, energy or \"creative power\" to maintain the universe in existence and to sustain it as was required in order to create it in the first instance. Existence, according to Rambam, is an ephemeral quality that must constantly be renewed. The infusion of existence needed to sustain the created universe can come only from divine existence. Hence, were divine existence, which Rambam refers to in Hilkhot Yesodei ha-Torah as \"amitat mezi'uto—the veracity of His existence,\" to be removed from the universe, the universe could no longer exist and would return to sheer nothingness.",
+ "This leads directly to what I have referred to as the third guise of the blessing oseh ma'aseh bereshit. This third pronouncement of the blessing employs the same formula as the first two but it differs in that it is recited in recognition and affirmation of the Doctrine of Constant Conservation of the universe. It is a blessing through which we acknowledge that God's presence is needed on a continual and ongoing basis for the preservation of the created universe with the result that, absent His presence, there could not be a world for us to inhabit.",
+ "But how is that doctrine reflected in the words of the blessing \"oseh ma'aseh bereshit?\" When we went out on the morning of April 8th, on erev Pesaḥ, and looked up at the sun, did the sun look any different from the way it looked a day earlier on April 7th? If one were to have gazed heavenward on the first day of Pesaḥ, on April 9th, would one have missed anything in one's observation of the sun that one was able to see a day earlier? Exactly the same visual sensation was available on April 7th, April 8th and April 9th as well on any other day of any year. Observation of the sun on April 8th, 5769 was entirely unlike witnessing lightning, meteors or the like. The latter are phenomena that one does not witness with any degree of regularity. In contradistinction, the sun can be observed every single day. Nothing of significance changes in the perception of the sun from one day to the next. If so, why was a blessing required at the beginning of a new solar cycle on April 8th more so than on any other day?",
+ "The blessing, when pronounced on the occasion of Birkat ha-Hammah represents a third type of berakhah, one that may be termed an \"evocative\" berakhah. That pronouncement of the berakhah is not responsive in the sense that we now see and marvel at some phenomenon that the Almighty created five thousand seven hundred and sixty-nine years ago or in the sense that we are responding to a phenomenon that He is creating here and now before our very eyes, in that a moment ago there was no lightning and now there is lightning. The berakhah as recited on the occasion of Birkat ha-Hammah is evocative rather than responsive. It is meaningful only when pronounced upon internalizing what is perceived and reflecting thereupon. One cannot appreciate the purpose of the blessing unless one internalizes the experience. The blessing is designed to promote reflection and introspection, which, in turn, serve to give rise to a feeling that one must express gratitude to the Almighty for continuously conserving the universe. It is through recitation of the blessing that such awareness is evoked.",
+ "And what is the phenomenon that occasions this reflection? It is the sun's return to the place in the firmament which it occupied on the same day of the week and at the same hour of the day on which it was created during the six days of creation. As such, it represents the beginning of a new solar cycle. But one could not possibly know that this has occurred simply by gazing at the sun. It is impossible to realize what has occurred without preparing for the event. A person who is intellectually prepared for the event recognizes what it is that occurs on April 8th upon the culmination of one twenty-eight year cycle and the beginning of another; perforce, he must recognize that the orbit of each of the heavenly spheres is a galgal ha-ḥozer, cyclical and never-ending, going back and forth, back and forth, over and over again. Furthermore, he must recognize that this is so only because God guarantees the existence of the created universe through amitat mezi'uto, the veracity of His existence; otherwise, the universe would not exist at all. Pronouncement of the blessing is designed to spur reflection upon this phenomenon; praise of God as the ongoing \"Maker of the work of Creation\" evokes recognition of God's constant conservation of the universe.",
+ "III. Other Occasions for an Evocative Blessing",
+ "The commencement of the 28-year solar cycle is not the only event for which the Sages ordained the blessing oseh ma'aseh bereshit in its evocative guise. The Beraita cited by the Gemara, Berakhot 59b, also declares that the blessing must be recited upon observing a variety of celestial events. As understood by early-day authorities, the Beraita describes the return of celestial bodies to the places in the firmament they occupied at the time of creation. Such events are similar in nature to the event that occasions Birkat ha-Hammah. The occurrence of such events certainly cannot be discerned by observation. Indeed, in practice, we do not recite the blessing on the other occasions enumerated in the Beraita because we do not know how to determine their occurrence. Nevertheless, the blessing on those occasions is in the same guise as Birkat ha-Hammah; the blessing is designed to evoke reflection upon the ongoing cyclical nature of the celestial spheres.",
+ "I believe that it is possible to demonstrate that recitation of oseh ma'aseh bereshit on the occasion of Birkat ha-Hammah and on other occasions enumerated in the Beraita are not the only occasions regarding which the Sages at least considered ordaining recitation of the blessing in its third guise. Birkat ha-Hammah occurs only once in twenty-eight years and presumably the other events occur with even less frequency. But another event was considered as a candidate for recitation of the same type of blessing. The Gemara, Berakhot 59a, states:",
+ "R. Joshua ben Levi said, \"If one sees the sky in all its purity, he says, 'Blessed is He who has wrought the work of creation.'\" When does he do so? Abaye said, \"When there has been rain all the night and in the morning the north wind comes and clears the heavens.\" And they differ from Rafram bar Papa quoting R. Hisda. For Rafram bar Papa said in the name of R. Hisda, \"Since the day when the Temple was destroyed there has never been a perfectly clear sky, since it says, 'I clothe the heavens with blackness and I make a sackcloth their covering'\" (Isaiah 50:3).",
+ "Why should that phenomenon occasion a blessing? Rashi comments, \"For such was its creation but afterward it was covered by clouds.\" In our day, even in the absence of cloud cover, it is certainly impossible to behold the sky in its pristine glory in any urban locale. There is simply too much industrial pollution that obscures the sky, not to speak of light pollution. However, Abaye declares that one who wishes to observe the sky as it appeared at the time of creation before it was obscured by clouds may do so by waiting for a rainfall that lasts all night long. Then, if the rain is blown away by a strong wind, the completely unobscured sky can be seen in all its purity and the blessing oseh ma'aseh bereshit is pronounced.",
+ "According to Rashi's interpretation of the Gemara, this is not a novel guise of the blessing. The blessing on such occasions, as categorized by Rashi, is no different from the blessing recited upon observing high mountains or deep chasms. The blessing is historical in nature in the sense that it acknowledges a primordial phenomenon present at creation. In the atmospheric conditions described, the sky is revealed in its pristine glory and appears as it did in its primordial state. That is not an everyday phenomenon. Ordinarily, the sky is covered by pollution, smoke, clouds, etc. On the rare occasion that it appears in its original state, one is required to praise God for having created a glorious universe.",
+ "If Rashi's interpretation is accepted, it is the berakhah in its historical guise that is required. If the blessing is identical in nature to the blessing recited upon sighting a tall mountain, a deep canyon or the yam ha-gadol, the blessing is not to be recited if the phenomenon is witnessed a second time within a thirty-day period. There does not appear to be any explicit evidence of such a limitation.",
+ "But for Rashi's comment, I would offer an entirely different analysis of the nature of the blessing. It may even be possible to read that analysis into Rashi's words as well. The phenomenon described by the Gemara seems to me to be comparable, not to a tall mountain or a deep canyon, but to the phenomenon of lightning. Lightning appears sua sponte; it is a novel phenomenon created before our very eyes. It seems to me that the Gemara is telling us that, when there is a prolonged rainfall and then a strong wind that blows, the resultant phenomenon appears as a new creation comparable to lightning. The sky in a place such as Bonaire is not at all comparable to the sky we are accustomed to seeing. The biblical phrase that speaks of the \"multitude of stars\" cannot be appreciated unless one has had such an experience. The sky in such far-flung areas is covered \"wall to wall\" by a blanket of light. Imagine a rain followed by a wind that would turn our sky into the sky over Bonaire. A person witnessing such an event would enjoy an exhilarating experience in the nature of an impression of a wondrous phenomenon being created before his eyes. Viewing the sky upon alighting from a plane at night in Bonaire certainly gives rise to an even greater thrill than watching lightning zigzag across the sky.",
+ "In metropolitan areas that experience is possible only when the atmospheric conditions described by the Gemara have occurred. On such occasions, the blessing oseh ma'aseh bereshit is in the nature of an acknowledgement of a contemporaneous creation occurring in the here and now.",
+ "How frequently is the blessing ordained for that phenomenon recited? Whenever the event occurs; whenever cleansing rain falls and the clouds are dispersed with the result that the sky is completely clear. If new clouds appear and, in turn, are swept away, the result is a new \"creation\" mandating a new berakhah, just as a second bout of lightning after clouds have dissipated is a new \"creation\" occasioning a new blessing. According to this analysis, the blessing required on perceiving such a phenomenon is in the guise of the earlier-described second form of the blessing. According to either analysis, the blessing upon the appearance of the heaven \"in its purity\" is in the nature of one or the other of the usual forms of the blessing oseh ma'aseh bereshit.",
+ "There is, however, a parallel text in the Yerushalmi, the Palestinian Talmud, Berakhot 9:2. The Yerushalmi also records that the blessing oseh ma'aseh bereshit is pronounced upon seeing \"the firmament in its purity.\" But, in the Yerushalmi's discussion, R. Huna explains that the blessing is recited \"only in the rainy season after three days, as it is written, 'And now they did not see light that is bright in the skies but a wind passes and cleanses them'\" (Job 37:4), i.e., the blessing is recited after incessant rain spanning a three-day period. R. Moshe Sofer, Teshuvot Hatam Sofer, Oraḥ Hayyim, no. 55, expresses bewilderment: Why is the blessing occasioned only by three days of rainfall? Hatam Sofer amends the text to read \"after thirty days\" but fails to explain why the blessing is recited only after a thirty-day period of rainfall.",
+ "It seems to me that the Yerushalmi describes a phenomenon totally different from that described by the Babylonian Talmud and that it is describing a blessing of a different genre. As evidenced by the citation of the verse in Job, the phenomenon described occurs after a three-day period of total darkness. It is not the rain per se that causes the phenomenon, but the darkness that occurs because of rainfall. When was the first occasion on which the sun was not visible for three days and then suddenly appeared? During the period of creation the sun suddenly came into being at the beginning of the fourth day. The reenactment of that event necessitates the blessing. But what is the nature of the blessing? It is not praise of God occasioned by the creation of something before our eyes nor is it an occasion on which we behold a vestige of primordial creation. Rather, it is a reenactment of ma'aseh bereshit. The blessing is evocative in that it calls upon us to reflect upon ma'aseh bereshit and to recognize that creation is an ongoing phenomenon. It calls upon us to remember that the sun originally came into existence only on the fourth day; the reappearance of the sun after darkness is a form of re-creation. Our observation of the sun being recreated should impress upon us the verity that the sun—and indeed all of creation—must continually be infused with existence. That reflection should evoke praise of God who constantly functions as the oseh ma'asheh bereshit.",
+ "The statement of the Yerushalmi is not recorded either by Rambam or by Shulḥan Arukh. But it is an example of a proposed blessing in the nature of the third category earlier described. The only blessing \"oseh ma'aseh bereshit\" of the third category that is normative is Birkat ha-Hammah. In that guise it is a novel blessing, a rare expression of thanksgiving to the Almighty for His constant conservation of the universe. It is a form of praise that can properly be uttered only upon reflection; it is the product of intellectual awareness.",
+ "IV. Evidence of the Evocative Nature of Birkat ha-Hammah",
+ "It is possible to demonstrate that the blessing oseh ma'aseh bereshit pronounced on the occasion of Birkat ha-Hammah is different from every other recitation of the blessing in a very significant way. The determination of the 28-year solar cycle is based upon the calculation of the day and hour of the vernal equinox as calculated by Shmu'el. Those calculations, in turn, presume that the length of the solar year is the same as that assumed by the Julian calendar. But we know very well that the Julian calendar was inaccurate. The Sages of the Gemara knew it to be inaccurate. Rav Adda, one of the Amora'im, is reported to have established different and more accurate tekufot which we use for other purposes of Halakhah. Rav Adda realized that Shmu'el's assumption with regard to the length of the solar year was imprecise. According to Rav Adda's more accurate calculation, the dates on which equinoxes and solstices occur are different from those of Shmu'el. We employ Shmu'el's tekufot only for Birkat ha-Hammah, for determination of the commencement of recitation of the tal u-matar prayer for rain and possibly for one other arcane area of Jewish practice, viz., refraining from drinking water drawn on the evening of the tekufah. But if the Sages of the Talmud realized that Shmu'el's calendar was inaccurate why, in ordaining Birkat ha-Hammah, did they ordain a blessing to commemorate a phenomenon that does not occur at the time it is purported to occur?",
+ "The reason they did so with regard to recitation of tal u-matar is not difficult to apprehend. Not everyone is a yode'a le-ḥashev tekufot u-mazalot; not everyone is sufficiently proficient in the science of astronomy to be able to calculate the autumn equinox so that he will be able to determine the appropriate date to commence recitation of tal u-matar. What is a simple, untutored, unlettered Jew supposed to do? Everyone is capable of calculating Shmu'el's tekufah. According to Shmu'el, each season is exactly 91¼ days in length. Once a person is apprised of the date and hour of the beginning of any season, calculating the beginning of any future season is extremely simple. Accordingly, the Sages adopted Shmu'el's calculations, inaccurate though they were, in ordaining the prayer for rain.",
+ "Birkat ha-Hammah is much more difficult to understand. The blessing seems to be occasioned by a non-occurring event. Since the solar year is decidedly not precisely 365 days in length, the sun does not return to its place of origin on the day and hour of the original creation every twenty-eight years. In fact, in the 5772 years that have elapsed since creation the actual tekufat Nisan has never recurred on its original day and hour. One authority, Teshuvot Mas'et Binyamin, no. 101, declares that that phenomenon will never recur. Yet the Sages did seek an opportunity to impress upon people the Doctrine of Constant Conservation of the universe. The accepted popular view was that the solar year is 365 days in length. That view was independently known and accepted by the populace at large for other liturgical purposes, viz., for recitation of the tal u-matar prayer. Since the blessing is born of reflection and is designed to evoke acknowledgment of a basic verity, they seized upon this popular assumption and harnessed it as a vehicle for disseminating and reinforcing a fundamental principle of faith.",
+ "This becomes even more obvious if we analyze Birkat ha-Hammah more closely. Why did the Sages not ordain that the blessing be recited Tuesday night? The tekufah of Shmu'el occurs at six o'clock Tuesday evening but we do not recite the berakhah until the sun rises on Wednesday morning. The tekufah in Erez Yisra'el on Tuesday evening, April the 7th, occurs at 5:39 P.M., give or take a few seconds. It occurs, not at 6:00 P.M., but at 5:39 P.M., because solar time depends upon the precise degree and minute of longitude. We have adopted a convention of establishing time zones varying by intervals of one hour. Accordingly, to speak of the time as 6:00 P.M. is accurately to identify the time only at the geographic midpoint of the time zone. True solar time will vary up to a half-hour earlier or a half-hour later depending on particular location east or west of the midpoint of the time zone. So, to speak of tekufat Nisan occurring at 6:00 P.M. is really to say that it occurs at 6:00 P.M. solar time which is 5:39 P.M. Jerusalem time on our clock. Sunset in Jerusalem does not occur until 5:50 P.M. local time. The sun remains visible during the period of time between the occurrence of the tekufah at 5:39 P.M. and sunset at 5:50 P.M.",
+ "If so, why did the Sages ordain that Birkat ha-Hammah be delayed until sunrise Wednesday morning which is many hours after the actual tekufah? True, the blessing may be recited only if one actually sees the sun. But, if the berakhah celebrates the return of the sun to its position at the time of creation, the Sages could have ordained that the blessing be recited Tuesday evening during the eleven-minute window between 5:39 P.M. and 5:50 P.M.",
+ "The answer, I believe, lies in the fact that at the time of creation the sun was placed in the firmament at 5:39 P.M. but, since the sun was created, not at the close of the third day, but at the beginning of the fourth day, sunset on the first Tuesday evening did not occur after the tekufah at 5:50 P.M., but at 5:39 P.M., i.e., the sun was created at sunset. In our day, sunset occurs eleven minutes after the tekufah but that was not the case at the time of the sun's creation.",
+ "Were one to have been present at the creation of the sun it would have been impossible to recite a blessing because the sun had already set. For the Sages to ordain recitation of Birkat ha-Hammah during the period of time after the tekufah that the sun remains visible on Tuesday evening would be incongruous and even self-contradictory. Ostensively, we witness a reenactment of a solar phenomenon that occurred during ma'aseh bereshit and thereupon recite Birkat ha-Hammah. But at ma'aseh bereshit the sun was not visible! So how is it comprehensible that we pronounce a blessing acknowledging our perception of the sun's presence in a certain position at the time of ma'aseh bereshit if, at ma'aseh bereshit, the sun was not visible at that hour? Therefore, the Sages ordained that the blessing be pronounced at an hour commemorating the first visual appearance of the sun subsequent to its creation. Were one to have been present at ma'aseh bereshit, the earliest opportunity to recite the blessing would have been at the first appearance of the sun at sunrise on Wednesday morning.",
+ "The point is clear. No novel astronomical event occurred at the time of the first sunrise on Wednesday morning. And, of course, no novel astronomical event took place on April 8th at sunrise. The blessing is neither historical nor contemporaneous, using the terms as they have been defined earlier; the blessing is evocative in the sense that the Sages desired that appearance of the sun on April 8th spur us to reflect upon ma'aseh bereshit and to acknowledge the role of amitat mezi'uto in the constant conservation of the universe."
+ ],
+ "Chapter 4 The Hetter Iska and American Courts": [
+ "\"Your money shall you not give him upon interest…. I am the Lord, your God who brought you out of the land of Egypt\" (Leviticus 25:37-38). Upon this condition did I bring you out of the land of Egypt, on condition that you accept the commandment concerning interest.",
+ "SIFRA 22:77",
+ "During the past years, the enforceability of hetter iska agreements has repeatedly been the subject of litigation in American courts. The rising number of challenges to the validity of hetter iska agreements is unwelcome but nevertheless represents eloquent testimony to the increased use of such instruments within the Jewish community. Recognition of the hetter iska by courts of competent jurisdiction as creating a joint venture is a matter of both religious and economic significance to observant Jews. The importance of that issue prompts this writer to revisit the topic in order (1) to examine the propriety of the hetter iska as a means of avoiding the biblical prohibition against paying or receiving interest; (2) to explicate the nature of the hetter iska as a valid halakhic construct; (3) to investigate the question of whether lack of enforceability in a civil court impacts upon the halakhic validity of a hetter iska; (4) to analyze the relevant judicial decisions regarding the efficacy of a hetter iska in American law; and (5) to delineate the manner in which the instrument should be drafted in order to achieve the desired halakhic and legal result.",
+ "I. The Propriety of a Hetter Iska",
+ "Biblical law forbids both exaction of interest by a creditor and payment of interest by a debtor. The underlying considerations are two-fold in nature: 1) The obligation to perform charitable deeds includes a responsibility to help the indigent by means of non-interest bearing provident loans. 2) Interest accepted in return for extending a loan involving neither risk of capital nor personal service is perceived as a form of unjust enrichment.",
+ "Although in biblical days the economic structure of society was predominantly agrarian and loans were sought primarily for personal purposes, the strictures against usury apply with equal force to loans extended for commercial purposes. During the Middle Ages, Jews, particularly when they were forbidden to own land, turned to commercial pursuits. Frequently, they became merchants engaged in the buying and selling of goods and produce. Such pursuits required capital investment of sums which few individual Jews possessed. Loans were generally not available unless they were also of financial benefit to the lender. Since interest was not permitted, ways and means had to be found to facilitate commercial endeavors without violation of either the letter or the spirit of Jewish law.",
+ "The earliest attempt to overcome this difficulty was that of the sixteenth-century Polish scholar known as R. Mendel Avigdors of Cracow, who composed the earliest version of the hetter iska. The hetter iska is a document which specifies the terms and conditions under which money is advanced by one individual to another. Its legal purpose is to create a partnership arrangement as distinct from a debtor-creditor relationship.",
+ "The issue with which rabbinic thinkers were forced to grapple was the propriety of seizing upon lacunae in the law and fashioning contrivances in order to circumvent the violation. A subterfuge may avoid technical violation of the law but nevertheless thwart the spirit of the law.",
+ "Virtually every system of law employs legal fictions for reasons of expediency. A corporation is a legal person and is accorded such status in order to achieve perfectly cogent and moral results. Such \"myths\" are essentially definitional. The law determines how it wishes to treat certain arrangements and coins a term for use as a type of verbal shorthand in referring to such arrangements. At times, the law, particularly in areas of taxation, provides for options. Determination by a businessman of the beginning and end of his fiscal year is an obvious but relatively trivial example. In such matters, as Judge Learned Hand famously remarked, \"Anyone may arrange his affairs so that his taxes shall be as low as possible…. Over and over again the Courts have said that there is nothing sinister in so arranging affairs as to keep taxes as low as possible.\" An individual acting in such a manner is not guilty of moral turpitude.",
+ "Jewish law is quite familiar with arrangements designed to avoid the onus of applying the full force of the law. In rabbinic literature there is a term for such an arrangement; it is known as a \"ha'aramah,\" a term that probably may best be translated literally as \"a cleverness.\" The term \"device\" probably best captures the flavor of the term without connotation of a moral judgment. Such devices fall into three distinct categories: (a) those that are disdained as inconsistent with the spirit of the law; (b) those that, for one reason or another, are regarded as commendable and actively encouraged; and (c) those with regard to which there is an attitude of complete neutrality.",
+ "Perhaps the earliest example of a ha'aramah involves regulations pertaining to tithing. Talmudic exegesis establishes that biblical law requires tithing only of produce brought into an abode through the gates of the courtyard. The Gemara, Berakhot 35b, bemoans the fact that, \"while earlier generations were wont to bring in their produce by way of the front door in order to make it liable to tithing, later generations bring in [the produce] by way of roofs, yards, or enclosures in order to exempt [the produce] from tithing.\" Clearly, that statement reflects a negative attitude toward the moral legitimacy of the \"later generations\" who avail themselves of such expedients. Indeed, according to some early-day authorities, the subterfuge in question was formally banned by rabbinic law.",
+ "The reason for the negative view vis-á-vis utilization of such expedients is self-evident. The purpose of the tithe was to provide a livelihood for the Levites who were required to serve in the Temple and who constituted a leisure class charged with providing religious instruction on behalf of the entire populace. Were tithes not to be forthcoming, the Levites would have been compelled to seek employment as artisans or laborers, thereby making it impossible for them to discharge their sacred mission. The spirit of the law would certainly have been thwarted. Thus, this is an example of a disdained ha'aramah.",
+ "The second category includes devices that are designed actively to promote conformity with the manifold provisions of law. The first-born male offspring of a cow or a sheep belonging to a Jew is sanctified from birth to be brought to the Temple as a sacrificial offering. With the destruction of the Temple, sacrifices are no longer feasible. However the sanctity of the first-born animal is in no way mitigated. The animal may not be used as a beast of burden; it is forbidden to drink its milk or use its wool. The animal is literally a \"sacred cow\" that roams virtually at will—as is the case even today in some Hindu communities with regard to animals they regard as sacred—until the animal develops a blemish rendering it unfit as a sacrifice. Unless and until that occurs, the animal is a halakhic nuisance in the sense that it is of no benefit to either God or man but poses an ongoing potential for inadvertent sin, \"a tort waiting to happen.\"",
+ "The sole remedy is to prevent the animal from achieving sanctified status by transferring ownership of the pregnant animal to a non-Jew before it gives birth. Subsequent to parturition both animals may be reconveyed to the original Jewish owner. Commandments regarding the first-born commemorate the sparing of Jewish first-born in Egypt while the first-born of the Egyptians perished in the last of the ten plagues. Hence, the first-born of an animal belonging to a non-Jew is not sanctified.",
+ "No one has ever suggested that it is improper to seek such transfer of title on the grounds that it is a subterfuge designed to frustrate the purpose of the law. Such circumvention of the law represents an instance in which fulfillment of the underlying purpose has become impossible, i.e., the animal cannot be brought as a sacrificial offering because the Temple no longer stands. Despite that factor, the law is not a dead letter; the restrictions governing sanctified animals remain in full force and effect. The only way to avoid transgression and violation of both the letter and spirit of the law lies in obviating its provisions by causing title to become vested in a non-Jew. That is so even if the calf or lamb and its mother are both subsequently repurchased from the non-Jew. Under such circumstances, employment of a \"device\" to accomplish that end is worthy of approbation.",
+ "The final category is best exemplified by the practice of selling ḥamez, i.e., food products not suitable for consumption during Passover, to a non-Jew. The sale is effected before the advent of the holiday and, typically, the same foodstuffs are repurchased from the non-Jew upon conclusion of the holiday. To some, the transaction has the appearance of a charade since the parties are fully aware ab initio that the effect of the sale will be rescinded at the earliest permissible opportunity.",
+ "In point of fact, this arrangement is entirely innocuous. Scripture forbids a Jew to retain any economic interest in ḥamez during the course of the Passover week. A Jew in possession of such foodstuffs on the eve of Passover may avoid the onus of transgression in one of three ways: (1) He may consume such foods in their entirety, a feat beyond human capability if the quantity is gargantuan, or inadvisable in the extreme in the case of a copious quantity of alcoholic beverages made from grain. (2) He may totally destroy such items by burning or the like, a procedure that may prove to be cumbersome and is wasteful but, nevertheless, entirely permissible. (3) He may transfer title to a non-Jew who, since the 613 biblical commandments are binding only upon Jews, is in no way subject to the prohibition. Jewish law does not accord preference to any one of these options over the others. Accordingly, the expedient of sale to a non-Jew is regarded as both halakhically and morally neutral; it is neither encouraged nor discouraged. Choice of that option is generally dictated by considerations of practicality and conservation of wealth. There are no restrictions upon acquiring ḥamez after the holiday, even ḥamez owned by a Jew before Passover, provided that the sale to a non-Jew prior to the advent of the holiday has been properly consummated.",
+ "To the extent that there are intimations of criticism in rabbinic literature regarding such sales, the concern is entirely with regard to legal niceties. Proper modes of formal conveyance, or kinyan, must be employed in transferring title. More significantly, there can be no valid transfer without a meeting of minds. Both parties must grasp the final and irrevocable nature of the transaction. Neither party may regard it is a pro forma ritual or liturgical act devoid of actionable effect. Small wonder, then, that rabbinic eyebrows were raised on occasion, particularly when the purchaser was an untutored and legally unsophisticated peasant.",
+ "In the modern world loans occur in situations varied and sundry. In antiquity, loans were almost always provident in nature. A farmer's crop failed and as a result he was forced to resort to a loan in order to purchase seed for planting the next year's crop. A person became temporarily incapacitated and was reduced to seeking a loan to put bread on the table. A loan of that nature is described by Scripture as an act of charity: \"that your brother may live with you\" (Leviticus 25:36). Charity assumes many guises. A loan represents a higher form of charity than a gift because the impoverished recipient receives full benefit of the funds advanced without being deprived of dignity. Such loans represent fulfillment of a divine command for which a person dare not demand compensation at the hands of his fellow. Moreover, unlike the majority of commandments with regard to which Scripture does not reveal the underlying rationale, in promulgating the requirement that a loan be interest-free, Scripture is quite explicit with regard to the reasoning: the borrower is in need of funds to sustain himself. The Bible regards profiting from human misery as ignominious; to demand interest is to compound the plight of an already destitute person. In earlier centuries, the Church regarded the taking of interest to be prohibited by natural law; the odiousness of interest-taking was not based upon dogmatic revelation but was regarded as readily apprehensible by the unaided light of moral reason.",
+ "In antiquity, all loans were provident in nature. At some point in human history society found it expeditious to rely upon middlemen to transfer commodities from producer to consumer. Tradesmen require at least a modest amount of capital in order to function in that capacity. Only with the advent of the industrial revolution and the construction of factories for the production of consumer goods did the need for vast amounts of capital arise; only in the modern era does capital represent the most prevalent form of generating more capital.",
+ "A person is under divine command to come to the assistance of his fellow who is in need. However, he is under no obligation to assist his fellow in amassing wealth. The rationale underlying the prohibition against interest-taking is alleviation of human misery. Yet the law acquires a life of its own. In general, Jewish law regards implementation of the law to be independent of the ends the law is designed to promote. That is the case even when those ends have been revealed to man. For that reason, in the Jewish legal system, policy considerations do not figure prominently in judicial decision-making. Hence, the prohibition against giving or taking interest is fully applicable, not only in situations in which societal goals are not advanced thereby, but even in situations in which societal goals may actually be thwarted.",
+ "A device that would enable a lender to reap profit from a provident loan would certainly offend the spirit of the law. But a device that restructures the transaction and renders it an investment makes it possible for the individual providing the financing to participate in the profits generated by the investment. Properly crafted so that it does not violate technical strictures, such a device is morally neutral when used in the context of a commercial enterprise.",
+ "Many such \"devices,\" although entirely permissible under biblical law, were interdicted by rabbinic decree. Those restrictions were instituted either as a means of constructing a \"fence\" around the biblical law because of fear that if a particular legitimate practice were to be sanctioned it would rapidly result in other practices violative of biblical law or because the arrangement might be regarded as interest-taking in the eye of an unsophisticated beholder. Practices that have come to be known as Islamic banking include a variety of devices forbidden to Jews by rabbinic decree rather than by biblical law. A repurchase agreement is a case in point: instead of lending money at interest, a \"lender\" sells a piece of property and agrees to repurchase it at a specified future date for a higher sum. The transaction is formally structured as a sale coupled with a repurchase agreement, but is actually a subterfuge. The funds advanced for the \"purchase\" of the parcel of real property are really a disguised loan since recovery is guaranteed. The \"seller's\" sole motivation is use of the funds in the interim; the \"purchaser's\" sole motivation is the interest he receives in the form of an enhanced repurchase price.",
+ "The primary device recognized by Jewish law as an acceptable means of avoiding the prohibition against extending or receiving an interest-bearing loan is known as a hetter iska or \"permissible venture.\" Its function is to substitute some form of profit-sharing representing a return on invested funds for what would otherwise have been structured as an interest-bearing loan.",
+ "II. The Nature of a Hetter Iska",
+ "The formula of the original hetter iska was based upon a ruling recorded in Shulḥan Arukh, Yoreh De'ah 167:1, which provides that funds may be advanced on the condition that the recipient use the funds to buy and sell merchandise on behalf of the person advancing the funds until such time as a stipulated profit has been earned; profit over and above that amount then accrues without limit to the recipient. During the initial period, the recipient acts solely as a commercial agent on behalf of the principal who advanced the funds; only after the originally stipulated profit has been earned does the deposit revert to the status of a loan and the recipient, who was heretofore considered a bailee, becomes a debtor. Subsequently, no profit whatsoever accrues to the lender and hence there is no question of forbidden payment of interest. The text incorporating this formula, which was drawn up by R. Mendel Avigdors for use in lieu of a promissory note, appears in Naḥalat Shiv'ah, no. 40, and is known as the \"Hetter Iska of Maharam.\"",
+ "The Ga'on of Vilna, (known as the Gra), Bi'ur ha-Gra, Yoreh De'ah 167:1, expresses amazement at Shulḥan Arukh's ruling that money may be lent in this manner. In the situation which is outlined, the \"agent\" undertakes to engage in the purchase and sale of merchandise on behalf of the \"principal.\" However, his sole motivation for doing so is the stipulated agreement between the parties to the effect that the sum advanced will subsequently be available for the recipient's own personal use as a loan. Labor or personal services performed on behalf of a creditor as an inducement to extend a loan is a form of interest forbidden by Jewish law. Performance of such services without compensation is, in fact, a disguised interest premium exacted as a precondition demanded for conversion of the funds to a loan. It is for this reason that Shulḥan Arukh stipulates that the \"agent\" must be paid for his services, although the payment may be nominal in nature. Such nominal payment to avoid the stricture against usury is analogous to the peppercorn recognized in common law as consideration validating a contract. The Gra quite evidently regarded token payment as inadequate; forgoing usual compensation was regarded by him as a form of interest-taking.",
+ "In terms of making capital available for commercial purposes, an obvious drawback with regard to this arrangement is that the \"interest\" received by the lender is not tied to the period of time his capital is used by the borrower and does not provide for accrual of interest or sharing of additional profit in the event that repayment is delayed. Subsequently, a modified form of the hetter iska which had the effect of eliminating this difficulty was developed by the 18-century authority, R. Abraham Danzig of Vilna, renowned as the author of Hayyei Adam and Hokhmat Adam. Under the terms of this modified hetter iska, the recipient accepts fifty percent of the funds as a deposit and fifty percent as a loan. The sum advanced in this manner is termed \"half-loan, half-deposit\" in rabbinic literature. Any expenditure of a commercial or investment nature is deemed to be a joint venture in which both parties share equally. Thus, technically, half the profits accrue to the \"principal\" and half to the borrower. The principal may, of course, agree to accept no more than a certain stipulated amount of the profits and the agent may demand that the agreement specify that profits exceeding that amount accrue to the agent as compensation for his services.",
+ "Transformation of the hetter iska into a transaction in the form of half loan, half deposit is to the advantage of the investor in the sense that only half his funds are at even theoretical risk. Another advantage is that it makes accrual of presumed periodic profits possible with the result that procrastination in a repayment results in greater profit to the investor.",
+ "It may well be the case that this form of hetter iska was also developed, in part, to overcome the objection raised by the Gra, viz., that mere token consideration in return for personal services is not sufficient to overcome the taint of usury. That objection is grounded in the concern that the recipient expends time and effort on behalf of the financier during the initial period of the arrangement in which the funds are invested solely on behalf of the financier and, clearly, that he is motivated to do so only because he desires that the sum advanced together with the profits generated during that period convert to an interest-free loan as rapidly as possible. However, it may be argued that this is not the case with regard to funds received as a half loan, half deposit. In the latter case, the recipient would expend no less time and effort were he to seek investment opportunities only for the funds he receives as an interest-free loan. No additional time or effort is expended because the investor's funds are commingled with the recipient's borrowed funds. Quite to the contrary, it is more likely than not that any entrepreneur would welcome the opportunity to double the quantity of merchandise he seeks to buy with his own already available funds by acting at the same time as an agent for another individual desirous of acquiring the same type of merchandise or in making a similar investment. Doubling the quantity purchased or the amount of money invested affords the opportunity for taking advantage of economy of scale.",
+ "To offer a simple example: Jumbo certificates of deposit require a much higher minimum investment than ordinary certificates of deposit, but yield a higher premium. The amount of paper work involved in securing a jumbo certificate of deposit is no different from the amount of paper work required to secure an ordinary certificate of deposit. Assume that A has only $50,000 to invest but that the minimum requirement for a jumbo certificate of deposit is $100,000. Assume also that B has $50,000 available to invest. Under such circumstances prudence and good business sense would dictate that one of the parties should offer to take custody of the other party's $50,000, commingle the funds, and invest them in a joint certificate of deposit as tenants in common. The motive for doing so is not altruism in helping a friend but self-interest in becoming able to qualify for a higher yield on one's own investment. Similarly, in purchasing merchandise, it is highly likely that, the greater the quantity bargained for, the lower the cost per unit. Hence, it is certainly arguable that in accepting funds in the form of half loan, half deposit, the recipient is motivated solely by self-interest and performs no additional services as compensation for receipt of the loan.",
+ "In neither of these formulations is the hetter iska a subterfuge or legal fiction. The determining characteristic which distinguishes a loan from a deposit or bailment is that a debtor must always repay the full amount borrowed, regardless of any losses he may suffer, while the laws of bailment provide that the bailee need not indemnify the bailor in the event of certain types of losses. Since the hetter iska generates a principal-agent relationship, no payment need be made if bona fide losses occur while the borrower functions as a bailee. Under the terms of Maharam's formula there is no obligation whatsoever on the part of the recipient if the loss is sustained during the initial period; according to the modified version, such losses are borne equally by the \"principal\" and the \"borrower.\" The \"principal\" may, however, set forth certain stipulations to protect himself against loss. He may, for example, stipulate that the agent must bear all losses unless the merchandise purchased is at all times under the latter's personal supervision or unless the agent produces two trustworthy witnesses who testify that he had indeed properly discharged all aspects of his trust.",
+ "Conditions such as these serve to protect the capital of the creditor, but do not at all guarantee the payment of \"interest\" in the event that the debtor denies that he has earned a profit. This drawback was overcome by means of a further stipulation providing that the \"principal\" may assume that a profit has been earned and that this presumption may be nullified only upon the solemn oath of the \"agent\" to the contrary. That stipulation has meaningful implications because of a singular socio-religious factor unique to Jews, Quakers, and few others. Pious Jews abjure oaths, even when called upon to swear to matters which are entirely true. Accordingly, the net effect of a stipulation requiring an oath to substantiate an absence of profit is to assure that the creditor will receive \"interest\" in the form of a guaranteed \"profit\" even if, in fact, no profit has been earned in any commercial endeavor. Thus, even if no profit has been realized, the stipulated payment is legitimately proffered as a fee for exoneration from the oath that would otherwise be imposed in order to substantiate the absence of profits. The payment is in the nature of an accord and satisfaction.",
+ "Whether or not such an oath may be demanded when the \"principal\" has personal knowledge of the truth of the \"agent's\" claim that no profit has been earned is a matter of some dispute. Some authorities assert that an oath attesting to facts already known by the party demanding the oath is forbidden as an oath taken \"in vain,\" i.e., to no purpose. Of course, if an oath cannot be exacted, payment in lieu of the oath cannot be demanded.",
+ "In an article that originally appeared in Torah she-be-al Peh, XIX (5727), 100-105, and was reprinted in his posthumously published Mishkan Shiloh (Jerusalem, 5755), pp. 281-288, Rabbi Shiloh Rafael notes that, in our day, an aversion to oath-taking is no longer to be taken for granted. Understandably, there may therefore be reluctance on the part of some persons to utilize the customary hetter iska. The lender may well anticipate a contingency in which the borrower will indeed swear quite truthfully that he has earned no profit. Rabbi Rafael suggests that the requirement for an oath on the part of the debtor be replaced with a stipulation giving the creditor the right to examine the financial records of the debtor and the right to participate in all decisions with regard to the expenditure of the sum advanced. The agreement between the parties would provide that this right be abrogated upon payment of a specified sum or percentage of the capital at the discretion of the debtor.",
+ "Nevertheless, in recent years, perhaps because of concern for the qualms expressed by the Ga'on of Vilna, a new form of hetter iska has developed among members of the stringently observant community. That agreement is colloquially referred to as the \"hetter iska of Bnei Brak\" because of the locale in which it gained currency. The arrangement is designed to eliminate any possible halakhic pitfall by providing that the funds are advanced in their entirety solely as an investment. Provision is made for payment of a stipulated periodic rate of return as profit upon the investment with any balance in excess of that rate of return to be retained by the recipient. Since there is no loan whatsoever, there can be no taint of interest. All other provisions of such an agreement are identical to those of a standard hetter iska. A return, even when no profit has been realized, is assured by stipulating a presumption of profit rebuttable only by a solemn oath. Capital is protected by stipulating that only the testimony of two halakhically qualified witnesses is acceptable as proof of loss. The drawback of that arrangement is that, unlike with regard to other forms of hetter iska, since no portion is in the form of a loan, the funds advanced are at risk in their entirety.",
+ "The hetter iska was originally designed to facilitate the lending of capital for commercial purposes. Since the capital was, in fact, invested in mercantile enterprises, and since the creditor assumed a measure of risk, the relationship which was formed was—factually as well as technically—that of partners in a business venture. However, with the passage of time, use of the hetter iska became more and more widespread. Greater and greater numbers of Jews earned their livelihood as craftsmen or as hired laborers. The use of a hetter iska by a person who is not in any way engaged in a business enterprise appears to be nothing more than a subterfuge. A prominent twentieth-century decisor, Rabbi Moshe Feinstein, Iggerot Mosheh, Yoreh De'ah, II, no. 62, totally ignoring earlier responsa dealing with this problem, strongly implies that a hetter iska may by employed only when the borrower is engaged in business ventures. Moreover, declares Rabbi Feinstein, both parties must know the nature of the commercial venture for which the money is advanced for \"[the hetter iska] is not an incantation or charm.\" Rabbi Feinstein adds that the written agreement should state that the money advanced must be used for ventures in which it may reasonably be anticipated that the total profit will be at least twice the amount of the stipulated return. Thus, according to Iggerot Mosheh, the hetter iska is reserved for use in situations in which the interest paid is, in reality, no more than the actual anticipated profit realized on the portion of the merchandise acquired on behalf of the creditor.",
+ "The question of the efficacy of a hetter iska in conjunction with non-personal loans was raised earlier, at approximately the turn of the twentieth century, and discussed in detail by Rabbi Shalom Mordecai Schwadron, Teshuvot Maharsham, II, no. 216. Advancing a view contrary to that later espoused by Iggerot Mosheh, Rabbi Schwadron justifies the use of a hetter iska in conjunction with loans that are entirely of a personal nature. He concedes that when the funds have not been used for commercial purposes, and no profits have been earned, no interest need be paid. The borrower, however, certainly has the legal and halakhic option of using the money advanced for such purposes; indeed, that is the prima facie purpose of the loan as stated in the written agreement. Under the terms of the agreement the financier may demand a solemn oath that the money has not, in fact, been used to generate profit and that, in fact, no profit has been earned. The amount stipulated as \"accord and satisfaction\" is then paid by the recipient solely as a means of avoiding the oath which he is otherwise bound to swear.",
+ "In the nineteenth century, R. Joseph Saul Nathanson, Teshuvot Sho'el u-Meshiv, Mahadurah Kamma, III, no. 160, justified an iska arrangement in conjunction with personal loans, for at least some purposes, on entirely different grounds. According to this authority, a loan which makes it possible for an individual to continue practicing his profession or to retain his income-generating employment is to be deemed a commercial enterprise. Therefore, according to Sho'el u-Meshiv, a teacher who is burdened by debt or by personal expenses may borrow funds under an iska arrangement if failure to receive the loan would force him to abandon his profession and to seek a livelihood in some potentially more lucrative endeavor. Since the loan enables him to continue in his occupation, the loan constitutes a form of iska in which the financier becomes a partner. The application of this line of reasoning to student loans designed to enable the student to pursue studies which will qualify him to enter a profession or to make him eligible for higher salaried employment is obvious.",
+ "In another responsum, Sho'el u-Meshiv, Mahadurah Telita'ah, I, no. 133, Rabbi Nathanson sanctioned an iska arrangement in order to enable the recipient to repay a debt and thereby to avert the forced sale of his home. This is categorized as an iska by Sho'el u-Meshiv by virtue of its service in preventing loss of capital resulting from the otherwise economically forced sale of the house and/or the opportunity to realize the contemplated appreciated value of the property.",
+ "The permissive views of Sho'el u-Meshiv were sharply disputed in the early part of the twentieth century by R. Meir Arak, Teshuvot Imrei Yosher, I, no. 108. Imrei Yosher maintained that the concept of iska is limited to profits realized from the investment of capital advanced or from sale of merchandise or goods acquired with such capital. Profits realized from avoidance of loss or from income derived from personal employment do not constitute the fruits of a joint venture and hence, according to Imrei Yosher, do not justify use of a hetter iska. This latter view is consistent with the position of most authorities, including Ginat Veradim, Yoreh De'ah, klal 6, no. 4; Shulḥan Arukh ha-Rav, Hilkhot Ribbit, sec. 42; Kizur Shulḥan Arukh 66:10; and Erekh Shai 177:7.",
+ "A contemporary scholar, Rabbi Moshe Sternbuch, Mo'adim u-Zemanim, VI, no. 41, sec. 2(7), s.v. ve-hineh, points out that with widespread investment in the stock market on the part of small investors there can be no question with regard to the creditor's lack of personal knowledge that no profit has been earned. Indeed, it is not uncommon for individuals who borrow money for personal purposes to use such funds in an attempt to reap short-term profits in the securities market. Since the creditor cannot know that this has not, in fact, occurred, he may, according to all authorities, stipulate that an oath be sworn to that effect.",
+ "III. Must a Hetter Iska Be Enforceable in a Civil Court?",
+ "Whether or not the terms of a hetter iska are enforceable in a secular court, and whether a civil court would treat the instrument as a loan agreement or as establishing a joint venture would appear to be of little import in determining its validity in Jewish law. The principle \"dina de-malkhuta dina—the law of the land is the law\" is irrelevant with regard to financial and commercial dealings between members of the Jewish faith. The law of the land does not supersede the rules of Jewish jurisprudence, most particularly in situations in which the state has no interest in thwarting private arrangements between the parties.",
+ "Nevertheless, the matter becomes more complex with regard to the validity of contracts. Contracts are generally not enforceable unless there is a meeting of minds, i.e., seriousness of intent and reliance by both parties. Thus, even though transfer of real property can be consummated by delivery of consideration, the Gemara, Kiddushin 26a, declares that in a locale in which a deed is customarily delivered to the purchaser the sale is not valid unless such a deed is executed. The reason, as explained by Rashi, ad locum, is that in the absence of a deed, the purchaser does not rely upon the conveyance. The question, then, is whether there is seriousness of intent with regard to assumption of a contractual obligation that cannot be enforced in a secular court. Ordinarily, that is not a problem because Jewish law requires its adherents to abjure recourse to secular courts and to submit all disputes to a bet din for adjudication. It also categorizes any recovery obtained in a civil court that would not have been allowed by a bet din as extortion.",
+ "The issue becomes germane primarily in instances involving a Jew and a non-Jew, in which the contract is not enforceable in civil law but is designed to satisfy a requirement of Jewish law. The earliest discussion of this issue arose with regard to the sale of ḥamez before Passover to a non-Jew. In the 19th century, the Austro-Hungarian Empire imposed a tax upon conveyance of chattel in the form of payment for a tax stamp that they required be affixed to the bill of sale. Jews were not in the practice of purchasing stamps for use in conjunction with the sale of ḥamez and were denounced to government officials as tax-evaders. The matter reached the ears of the Emperor Franz Josef, who had a justly-deserved reputation as a philosemite. His reaction was that it is common knowledge that sale of ḥamez is not a mercantile transaction designed for profit but entirely a matter of religious scruple. As such, the Emperor had no desire to burden religious practice by taxation.",
+ "Although the Emperor was satisfied, R. Baruch Frankel, author of Barukh Ta'am, reportedly was not. R. Baruch Frankel inferred from the Emperor's response that failure to affix tax stamps did indeed render the sale void and unenforceable. If so, he was hesitant with regard to its validity in Jewish law. Presumably his concern was that, even if in Jewish law the contract is valid in form, the non-Jew would not rely upon the conveyance. R. Moshe Sofer, Teshuvot Hatam Sofer, Oraḥ Hayyim, no. 113, disagreed, but only because he understood Austro-Hungarian law differently (and probably more correctly). Hatam Sofer asserted that failure to abide by the tax statute did not serve to void the sale; it compelled only payment of the tax prior to institution of legal proceedings based upon the transaction.",
+ "A somewhat different version of the problem appears in a later responsum authored by the son-in-law of R. Baruch Frankel, R. Chaim Halberstam, Teshuvot Divrei Hayyim, II, Oraḥ Hayyim, no. 36. For reasons of Jewish law, conveyance of ḥamez is usually accompanied by sale or lease of real property so that the ḥamez may be transferred by kinyan in the form of ḥazer, i.e., placement in the beneficiary's domain, and by accession or agav karka. The Austro-Hungarian Empire apparently had a law similar to England's Statute of Frauds requiring that transfer of real property be in writing. Divrei Hayyim's interlocutor apparently had concern with regard to the validity in Austro-Hungarian law of an instrument drafted in Hebrew. Apparently, in that jurisdiction, instruments written in a foreign language were of no legal effect. Divrei Hayyim responds that, under the applicable civil law, absent a valid deed, the sale is not void but merely voidable and, moreover, that even when accompanied by a written instrument, the sale is voidable unless registered in a land registry office. Nevertheless, argues Divrei Hayyim, the validity of both an oral transfer and an unregistered transfer, even if void under the law of the land, is determined solely by Jewish law. Divrei Hayyim dismisses the contention that the non-Jew does not rely upon such a conveyance with the comment that a non-Jew \"knows that the Jew will not renege without acquiescence of the non-Jew in order that his ḥamez not become forbidden.\" In other words, the non-Jew recognizes the critical nature of the transaction in avoiding transgression of a biblical command and, since he is confident that the Jew will not wish to sin, he relies upon the conveyance because he is convinced that the Jew will make no attempt to seek to rescind the sale by suing in a civil court.",
+ "A rather similar argument was advanced by R. Yitzchak Elchanan Spektor, Be'er Yizḥak, Oraḥ Hayyim, no. 7. As earlier noted, Jewish law provides that in a locale in which sale of real estate is generally memorialized by a deed, a sale for cash alone is not valid. Be'er Yizḥak contends that if, however, it is patently clear that the seller will not renege, e.g., he seeks to divest himself of land because it is not productive (mipnei ra'atah), the sale is valid even if consummated only by delivery of consideration. Be'er Yizḥak argues that a Jew will not renege on a sale of ḥamez on the eve of Passover because invalidating the sale would leave him with ḥamez from which he may derive no benefit. Hence the non-Jew has every reason to rely upon even an unconventional mode of transfer.",
+ "A similar problem presented itself with regard to sale of farmland in the Land of Israel in anticipation of the sabbatical year in order to avoid difficulties arising from observance of the laws of the sabbatical year. Palestine was part of the Ottoman Empire from 1517 until after World War I. Ottoman law did not recognize the validity of transfer of real property unless the transfer was recorded in a land-registry office. That procedure was not followed in the transfer of land in advance of the sabbatical year. R. Abraham I. Kook, Shabbat ha-Arez, introduction, sec. 13, arrives at a conclusion similar to that earlier recorded by Divrei Hayyim in the context of the sale of ḥamez, viz., \"when the essence of the transfer is to obviate a prohibition, the grantor firmly intends to convey [by means of] such a transfer and the grantee [firmly intends] to acquire, there is proper reliance.\"",
+ "In a similar manner, R. Shalom Mordecai Schwadron, Teshuvot Maharsham, I, no. 20, permitted use of a hetter iska by a bank even though, contrary to applicable civil law, no provision for a hetter iska was incorporated in the by-laws of the bank. That view was endorsed by R. Meir Arak, Teshuvot Imrei Yosher, I, no. 189. This also appears to be the view of R. Joseph Saul Nathanson, Teshuvot Sho'el u-Meshiv, Mahadura Kamma, II, no. 136, s.v. u-mah she-katavta.",
+ "As stated earlier, both the Jew and the non-Jew rely upon Jewish law as governing the sale of ḥamez because the non-Jew recognizes that the Jewish party will abide by the agreement rather than commit a transgression. The non-Jew will not renege because the terms of the sale guarantee him a profit. But is this also the case with regard to a hetter iska in which one of the parties is a non-observant Jew who is unconcerned with the prohibition against usury and who may find it to his financial advantage to challenge the validity of the agreement in a civil court?",
+ "R. Moshe Schick, Teshuvot Maharam Shik, Yoreh De'ah, no. 161, s.v. mihu, observes that, even if an attempt is made by the financier to bring an action in a civil court to demand that the document be construed as an ordinary interest-bearing loan, the recipient of the funds incurs no transgression. Nor, from the vantage point of Jewish law, has the financier transgressed the prohibition against accepting interest; the financier is an extortionist but not a recipient of interest.",
+ "R. Yitzchak Ya'akov Weisz, Teshuvot Minḥat Yizḥak, IV, no. 16, secs. 4, 7-8 and no. 18, sec. 4, questions the validity of a hetter iska whose provisions would not be enforced by a civil court in situations in which one or both of the parties would have no compunction with regard to having recourse to a civil court rather than to a bet din. His concern is that some individuals do not really intend to be bound by the provisions of the hetter iska, and hence a hetter iska that is not enforceable in a civil court does not constitute a valid agreement. He does, however, suggest that this may not be a concern if it is only the recipient of the funds who is unconcerned with regard to the prohibition against bringing suit in a civil court. Since the provisions of the hetter iska are to the advantage of the recipient in providing for release from financial obligations upon adducing the stipulated proof of loss of capital and release from payment of a share of profits upon his oath that there was no profit, it is to his advantage to rely upon the hetter iska and hence there is no reason why he should not reach the requisite determination to be bound by its provisions. However, Minḥat Yizḥak's argument fails in a situation in which the stipulated return would constitute usury in civil law. In such an event, the recipient would certainly have a motive to seek to have a civil court invalidate the hetter iska because, in light of the usurious return stipulated by the parties, the debt would not be actionable in a civil court.",
+ "IV. The Hetter Iska in American Law",
+ "As has been explained earlier, the hetter iska constitutes a device that is in full conformity with Jewish law. The hetter iska has also been recognized by the civil courts as an instrument creating a bona fide partnership interest providing for a limited return upon an investment rather than as a loan instrument requiring payment of interest on borrowed funds. In Leibovici v. Rawicki, 57 Misc.2d 141, 290 N.Y.S. 2d 997 (Civ. Ct. 1968), the Court upheld the legality of a hetter iska which provided a return greater than was permitted by usury laws in effect at that time. In this decision, the Court specifically denied the plea that the agreement was merely a disguised loan and hence constituted a subterfuge to avoid the taint of usury. In a number of cases, the courts have ruled explicitly that payment of a portion of profits in lieu of interest with no guarantee of profit is not usury. In Leibovici v. Rawicki the Court recognized that a hetter iska constitutes an agreement of precisely this nature.",
+ "There are, nevertheless, cases in which American courts, primarily New York State courts, have refused to recognize a hetter iska as creating a partnership or joint venture. However, in each of those cases, either (a) the hetter iska issue was irrelevant; (b) the testimony presented to the court with regard to the nature of a hetter iska was patently incorrect; or (c) the hetter iska was improperly drafted. Those cases underscore the need to draft a hetter iska properly and, when testimony is required, to have knowledgeable scholars serve as expert witnesses.",
+ "One decision in particular has great relevance with regard to a type of hetter iska that has unjustifiably gained currency because of its simplicity. There appears to be a fairly widespread practice within some business circles to use a standard promissory note and to write the words \"al pi hetter iska\" (\"in accordance with hetter iska\"), or to use a rubber stamp bearing those words, above the signatures of the parties. The intent of that legend is to nullify explicit references in the instrument to a loan and interest by declaring actual intent to be a joint venture and shared profit. Read literally and in its entirety, the result is an ambiguity creating doubt with regard to the nature of the instrument and hence the expedient is of dubious efficacy in obviating the prohibition against interest. Moreover, the term hetter iska is generic in nature and does not indicate which of the available forumulae or variations thereof is intended. In addition, a significant problem arises in the event that no profits are realized from investment of the funds received. Since there is no specific provision for an oath supporting a claim of the absence of profit, there is no basis for a fee in the form of accord and satisfaction in lieu of such an oath. Accordingly, if the transaction is governed by such a hetter iska and no profits have been realized, any sum paid the creditor in excess of principal in the absence of profit is, at best, a \"gift\" in return for the loan, which is itself a proscribed form of interest.",
+ "It is quite likely that the practice of using the formula \"al pi hetter iska\" evolved from an earlier-employed expedient that was not open to these challenges. In earlier times, printed promissory notes were not used. Instead the recipient wrote out a simple declaration in the nature of \"I acknowledge receipt of the sum of _______ from _______ in accordance with the hetter iska instituted by Maharam Avigdors of Cracow.\" The instrument (a) contained no contradictory reference to interest; and (b) provided both for profit-sharing and for payment in lieu of an oath by means of incorporation of the provisions of a particular well-known and published hetter iska, viz., the hetter iska authored by Maharam Avigdors. At times, the slightly shortened formula \"al pi hetter iska shel Maharam\" was used on the strength of the common recognition that the only \"Maharam\" associated with a hetter iska instrument is Maharam Avigdors. Use of the formula \"al pi hetter iska shel Maharam\" when the intention is half loan, half deposit is clearly inappropriate.",
+ "A New York trial court found the abbreviated formula to be ambiguous and ordered a trial to determine, inter alia, the nature of the instrument. In Arnav Industries, Inc. v. Westside Realty Assoc., 180 A.D.2d 463, 579 N.Y.S.2d 382 (1 Dep't 1992), the Appellate Division found that inclusion of the phrase did not generate a threshold level of ambiguity sufficient to warrant denial of summary judgment on the promissory note. The promissory note that was the subject of dispute in Arnav contained a clause specifically stating that \"[n]othing herein or in Mortgage is intended to create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between Borrower and Lender.\" That clause constitutes an explicit rejection of the relationship a hetter iska is designed to create. Absent that clause, the issue of whether references to a loan and to payment of interest are rendered ambiguous by insertion of the phrase \"al pi hetter iska\" remains an open legal question. Nor, if an ambiguity is found to exist, is there any way to predict how a trial court might resolve that ambiguity.",
+ "The decision in Arnav should serve as a caution against use of an abbreviated hetter iska consisting of but a vague and ambiguous phrase. Since that procedure is in any event of dubious halakhic validity, the decision in Arnav places no significant burden upon utilization of a hetter iska.",
+ "Barclay Commerce Corp. v. Abraham Finkelstein, 11 A.D.2d 327, 205 N.Y.S.2d 551 (1 Dep't 1960) involved a case in which the plaintiff and the corporate defendant entered into a factoring agreement guaranteeing payment of monies which might become due. The suit was based upon the plaintiff's contention that the accounts receivable that had been assigned were fraudulent. The Appellate Court found that since the alleged fraud was not denied, the question of whether or not the hetter iska created a partnership was a \"phantom\" issue.",
+ "In Bollag v. Dresdner, 130 Misc.2d 221, 495 N.Y.S.2d 560 (N.Y. City Civ. Ct. 1985), the parties entered into a properly drafted hetter iska. The defendant maintained that (a) the contract was void as usurious; and (b) the transaction constituted an investment by the plaintiff subject to any profits earned or losses sustained. The plaintiff relied upon the hetter iska in countering the usury defense but also incongruously alleged that he was entitled to repayment of principal and interest regardless of any profit or loss. Further muddying the waters, the plaintiff's complaint and bill of particulars categorized the instrument as a note and presented an expert witness who testified imprecisely that such forms are employed \"when one party is lending money and the other party is borrowing money.\" The Court also noted discrepancies between the hetter iska and testimony regarding liability in the event of absence of profit or of loss of capital. Most damaging was the unequivocal, but patently false, testimony of the expert who \"testified emphatically…that the agreement did not create a joint venture or partnership.\" Not only is that statement false, it is absurd, since, if true, it would render the hetter iska devoid of purpose. The Court took note of the inherent contradiction in the plaintiff's position in observing, \"Yet despite his repeated use of the above-quoted categorization of the transaction, it is 'done,' he said, 'specifically not to pay interest.'\"",
+ "The Court, in this decision, expressly affirmed in principle the validity of a properly drafted hetter iska in finding that the hetter iska presented to the court \"as interpreted by the parties and their witnesses at trial reveals that the transaction was a loan (not an 'investment') and that plaintiff's clear intent was to exact a higher rate of interest than is permitted by law.\" The Court distinguished the case before it from Leibovici v. Rawicki on the grounds that in Leibovici \"the funds were clearly treated as a joint investment.\"",
+ "In Bollag, the Court found that the defendant requested the loan that was the subject of litigation for business purposes rather than for personal needs. Accordingly, it found that the policy and reasoning behind the general obligation law §5-521 serve to disallow a usury defense in such circumstances. In doing so, the Court affirmed the hetter iska as a valid business contract. However, incongruously, and perhaps cynically, its disallowance of the usury defense notwithstanding, the Court refused to allow \"interest.\" The Court found that the plaintiff was prevented from collecting interest by his own pleading. The plaintiff had maintained that the hetter iska was entered into specifically to avoid payment of interest. Yet, the plaintiff's own expert witness incorrectly categorized the claim as one to recover \"interest.\" Giving equal credence to both the plaintiff's own statement and the testimony of plaintiff's expert witness the Court declared, \"[P]laintiff has made it plain he neither wishes to nor can collect interest. Accordingly, none shall be awarded.\" The defendant, in effect, was hung from his own petard.",
+ "Although recovery of accrued interest was denied, the Court allowed interest on the judgment at the statutory rate from the date of its entry on the grounds that there was \"no testimony which would bar plaintiff from receiving interest on a judgment (as distinct from interest on a loan).\" That finding reflects an erroneous assessment of Jewish law. Recovery of interest on a judgment is indeed precluded by Jewish law. Absence of testimony to that effect is but one more example of the comedy of errors and incompetence on the part of counsel and witnesses reflected in this case.",
+ "In an unreported case, Berger v. Moskowitz, N.Y.L.J 25, (col. 3), vol. 206, no. 85 (October 30, 1991), 25 the Court found that a perfunctory hetter iska did not succeed in establishing a partnership agreement because it failed \"to identify the nature of the venture let alone the specifics relating to the terms of such venture.\" The hetter iska in question was titled \"Business Agreement\" and did recite that the sum in question was advanced \"for business and the profit of which agreed on will be ten percent, and the duration [of] the business will be three years from the signing of this agreement.\" Although inelegantly drafted, the agreement itself would seem to this writer to reflect the intent of the parties that the funds be applied to a business venture and that the 10% be paid out of profits, the implication being that such profit-sharing was predicated upon actual realization of profits. However, in this case also, the defendant was found liable by virtue of his own admission. The Court declared, \"Nor can defendants label this transaction a business venture since MOSKOWITZ wrote a letter to the plaintiffs' attorney stating in part: 'I acknowledge that the unpaid balance of the loan with interest through November 30, 1990, is $268,200.00.'\"",
+ "The decision of a U.S. Bankruptcy Court in In re Stephen Douglas, 174 B.R. 16 (Bankr. E.D.N.Y. 1994), does not involve any substantive matter pertaining to the legal validity of a hetter iska. The issue was whether a certain payment constituted a fraudulent conveyance under applicable statutes. Section 273 of the New York Debtor and Creditor Law denominates as fraudulent any conveyance made by an insolvent for inadequate consideration, without regard to actual intent. The books and records of the debtors reflected no consideration or economic benefit conferred upon Douglas by the defendant. It was also alleged that a promissory note reflecting a loan was executed but was lost. A hetter iska was introduced in evidence in support of existence of a loan. That evidence was dismissed on the grounds that it was written on the stationery of a corporation not involved in the proceedings. Since the hetter iska was dismissed as irrelevant, the Court found that there was no need to address the legal import of a hetter iska.",
+ "Heimbinder v. Berkovitz, 175 Misc.2d 808, 670 N.Y.S.2d 301 (N.Y.Sup. 1998), involved an action to invalidate various transfers to the defendant corporation which would have otherwise been available to satisfy a judgment against the defendant. The plaintiff sought to hold defendant directors personally liable for breach of fiduciary duty in effecting such transfers. Since a hetter iska was employed, the plaintiff also contended that the defendant, in signing the document, personally guaranteed payment of the obligation. The court cited with approval an earlier unpublished decision in Burger v. Baruch Ha'Levi Moskowitz, Kings County Sup.Ct., Index NO. 15600/91, in which a hetter iska constituted the sole contract between two individual parties and was found to establish a valid guarantee. In Heimbinder, however, the evidence indicated that plaintiff's attorney had previously requested a personal guarantee and that the request had been refused by the defendant's attorney. Moreover the \"security agreement\" executed by the parties contained a provision for a \"guarantee\" next to which the word \"omit\" was entered in handwriting; the defendant's name had been typed beneath the signature line for the guarantor but was crossed out. The plaintiff conceded that there had been a discussion of guarantees but that no agreement was reached; that he had been unaware of the existence of a guarantee provision in the form that was used and that the hetter iska was produced by the defendant only after discussions in which he refused a personal guarantee had been concluded; that he could not read Hebrew and relied upon the defendant's categorization of the document; and that the defendant did not portray it as a personal guarantee. Accordingly, the Court found that, in the case before it, the hetter iska was not intended to generate a personal guarantee of corporate debt. Nothing in the Heimbinder decision casts doubt upon the enforceability of the provisions of the hetter iska itself.",
+ "Heimbinder, however, serves to establish a significant point of law. A standard hetter iska signed by an officer of a corporation in circumstances other that those of Heimbinder may well establish a personal obligation even absent explicit indication of such intention. If this is not the desired outcome, the remedy is to indicate explicitly in the document that it is being executed on behalf of the corporation and not in an individual capacity.",
+ "Wiesel v. Rubinstein, 12 Misc.3d 1168(A) (N.Y.Sup. 2006), represents a foregone opportunity to seek application of a collateral provision of a hetter iska. Kalman Rubinstein signed a series of promissory notes in order to obtain funds to open a kosher pizza shop. The rate of return on each of the notes, most of which were short term in nature, was 14%. Despite an agreement to submit the dispute to a bet din for resolution, Rubinstein failed to appear before the bet din to which the parties agreed. The bet din declined to issue a default judgment. Thereupon, the estates of Sol and Harriet Wiesel sued in New York State Supreme Court. Apparently, the plaintiff made no attempt to have the Supreme Court enforce compliance with the arbitration agreement or to issue a default judgment upon failure to submit to arbitration despite the express agreement between the parties to do so that was incorporated in the hetter iska.",
+ "Rubinstein seems to have been under the impression that he would prevail in a civil court both because the plaintiffs' claim was barred by the statute of limitations and because the rate of interest was usurious. Nevertheless, he asserted an additional affirmative defense, viz., since \"each of the notes contains a notation in Hebrew indicating the notes are subject to hetter iska failure of the business absolved him of the obligation to repay the amounts due on the notes.\"",
+ "The Court denied summary judgment based on the statute of limitations on the grounds that the alleged partial payment of the debt had the effect of extending the period within which a suit might be initiated. The Court also interpreted the note as prescribing 14% per annum rather than a usurious 14% for a much briefer period. The hetter iska defense was ignored in the Court's rejection of the motion for summary judgment, perhaps because it was self-evident that whether or not the business did fail, and whether or not a hetter iska provides that such failure cancels the obligation, are triable issues.",
+ "In point of fact, a standard hetter iska would require a solemn oath to substantiate a claim of non-realization of profit and testimony of two halakhically qualified witnesses to establish loss of capital. In this case, an ordinary promissory note seems to have been employed but modified by inclusion of a \"notation in Hebrew indicating that the notes are subject to the hetter iska.\" That \"notation\" was the incorporation of the earlier-discussed phrase \"al pi hetter iska.\" As noted earlier, that phrase may signify only that the term \"loan\" should be understood as \"investment\" and that the term \"interest\" should not be construed as such but as the return of a share of the profits earned by the investment. If so, as discussed earlier, entirely different and much less onerous standards of proof might apply to establishing absence of profit and loss of capital. Whether or not \"failure of the business\" did indeed absolve the defendant \"of the obligation to repay the amounts due on the notes\" is a matter to be resolved by a bet din.",
+ "The above notwithstanding, in a Report and Recommendation on Motion to Dismiss in the case of Edelkind v. Fairmont Funding, 539 F.Supp.2d 449 (D. Mass. 2008), a federal magistrate asserted that in civil courts \"hetter iska agreements have been interpreted as 'merely a compliance in form with Hebraic law' that does not create a partnership between the parties.\" In support of that assertion, the Magistrate cited Arnav Indus. v. Westside Realty Assoc., Barclay Commerce Corp. and Heimbinder. As has been shown, those cases do not serve to establish the Magistrate's conclusion. Quite to the contrary, each of those cases reflects acceptance of the validity of a properly drafted hetter iska in creating a partnership between the parties but finds the particular hetter iska instruments submitted in those proceedings to be faulty. The hetter iska employed in Edelkind may also have been defective but that issue was not addressed. These cases serve to underscore the necessity for careful drafting of a halakhically valid hetter iska agreement. A sample text of an English-language hetter iska agreement may be found in this writer's Contemporary Halakhic Problems, II (New York, 1983), 386-388.",
+ "The claim advanced in Edelkind was dismissed because Jamie Edelkind was found to have no standing to bring a suit as an alleged third party beneficiary of a mortgage agreement entered into by his wife. The findings with regard to the hetter iska, also apparently signed by the wife, constitute dicta having no bearing upon the merits of the case. Nevertheless, the facts presented in Edelkind underscore a serious pitfall based, not upon the validity of the hetter iska itself, but upon the way it was employed.",
+ "It is quite common for a lender to execute a hetter iska and immediately thereafter to execute a second, standard mortgage agreement. It is commonly assumed that the lender is better protected legally if he is in possession of a mortgage instrument. Whether or not that is true, there is no gainsaying the fact that the lender feels more secure with a mortgage in his possession. R. Moshe Feinstein, Iggerot Mosheh, Hoshen Mishpat, no. 62, sanctions the practice from the perspective of Jewish law in describing the mortgage instrument as devoid of halakhic validity provided that the iska agreement states that it is the governing instrument and the mortgage is designed merely as \"bitḥonot,\" best translated as \"reliances\" or \"assurances.\" Nevertheless, one legal ramification of such practice is evident in Edelkind.",
+ "In instances such as those described in Edelkind, the mortgage agreement is crucial to the enterprise. Fairmont Funding is a mortgage broker. The principals are observant Jews. The firm enters into mortgage agreements in conjunction with the purchase of real property and then sells the mortgage loans to banks. Therein lies the dilemma: The mortgage broker is the lender, both halakhically and legally; the mortgage broker contracts for interest to be paid to himself. This, as an observant Jew, he may not do. Therefore, he avails himself of a hetter iska. The mortgage bankers are non-Jews; they do not understand, and would not purchase, a hetter iska. Therefore, the mortgage broker, in addition to a hetter iska, insists upon a mortgage note which he then sells to the mortgage bank, presumably without informing the bank of the existence of the hetter iska.",
+ "That was precisely the chain of events reported in Edelkind v. Fairmont. The contemplated procedure was recited in detail in the preamble to the hetter iska agreement. Jamie Edelkind argued that the hetter iska created a partnership in the mortgaged property and, accordingly, Fairmont Funding was not empowered to sell the purported loan without permission or notification of his wife who was thereby denied her option to repurchase Fairmont's investment. Edelkind categorized the mortgage document as a \"fiction\" and accordingly contended that neither Fairmont nor any subsequent holder of the instrument had any legal rights in the mortgage. Hence, he argued, Fairmont and his wife still own the property jointly as partners and neither Fairmont nor any subsequent holder had any foreclosure rights.",
+ "There is merit in Jamie Edelkind's contention but, if so, both he and Fairmont perpetrated a fraud upon subsequent holders of the mortgage. The obvious remedy is to insert a clause in the hetter iska agreement authorizing the mortgage broker to mortgage the entire property. Indeed, a careful reading of the preamble to the hetter iska agreement between Edelkind and Fairmont Funding reveals that this was agreed to by the parties. Clearer language would have prevented Jamie Edelkind from arguing otherwise. In any event, suppression of the hetter iska agreement gives rise to an aura of fraud and should not be countenanced. In addition, authorization to assign a mortgage against the entire property should be carefully spelled out in the body of the hetter iska agreement.",
+ "V. Assuring The Validity of a Hetter Iska",
+ "It seems to this writer that, even according to the authorities who maintain that a hetter iska must be enforceable in a civil court, a contract containing an enforceable clause requiring arbitration before a bet din is sufficient. The position of those authorities is based on the contention that a contract requires a meeting of minds. Hence, if one or the other of the parties regards the agreement as a charade, the hetter iska is of no effect. Awareness that the provisions of that instrument are not civilly enforceable, they contend, has the effect of thwarting such a meeting of minds. However, whether the provisions are directly enforceable under applicable civil law or are enforceable only by virtue of an arbitration clause is of no material significance in this regard. So long as both parties recognize that the provisions of the hetter iska will be enforced by a court of competent jurisdiction, whether directly or by means of confirmation of an arbitration award, there must be seriousness of intent to abide by the provisions of a hetter iska.",
+ "There is, of course, the possibility that, for one reason or another, one of the parties may prove to be recalcitrant and refuse to appear before a bet din or that, as occurred in Wiesel, the bet din may decline to issue an award and grant leave to have recourse to a secular court. In such instances, it may be to the advantage of the person bringing a cause of action to have the court treat the instrument as an ordinary loan.",
+ "Since the parties have bound themselves to enforceable arbitration before a bet din, and hence at the time of the execution of the hetter iska there is a proper meeting of minds, the manner in which the instrument is construed by a civil court in cases of default is of no halakhic significance. The validity of that conclusion is evidenced both by Hatam Sofer's ruling that an interest-bearing loan agreement may be presented to a civil court if there is default on the underlying hetter iska, and by the ruling of Iggerot Mosheh that a conventional mortgage may be executed for purposes of \"bitḥonot.\"",
+ "Accordingly, this writer recommends that a hetter iska agreement incorporate two separate clauses: (a) a clause providing for binding arbitration before a bet din; and (b) a clause providing that if, for any reason, the transaction governed by the hetter iska becomes the subject of litigation before a civil court, it is the intent of the parties that the court construe the transaction as an ordinary loan and enforce it as such. In this writer's opinion, the coupling of those two clauses renders the arrangement acceptable according to all authorities. The following text may be used to achieve that effect:",
+ "In the event of any controversy arising out of, or related to, this agreement the same shall be submitted to binding arbitration in accordance with Jewish law by a tripartite panel of qualified rabbis versed in such law. Each party shall be entitled to appoint one member of this panel; the two members appointed in this manner shall appoint the third member of the panel. The award by a majority of such panel shall be confirmed in any court of competent jurisdiction pursuant to the CPLR without any right of appeal therefrom. An action shall be brought before a civil court only in the event of failure of one of the parties to appear before a rabbinic tribunal and only upon leave from a rabbinic tribunal.",
+ "This undertaking shall be governed solely by the stipulations contained in this agreement. Any further documents pertaining to this transaction bearing the signatures of the undersigned is hereby declared null and void insofar as Jewish law is concerned. Any such document is to be construed solely as an expedient designed to provide relief in a civil court in accordance with usual judicial procedures in the event of the undersigned's failure to appear before a rabbinic tribunal or failure to abide by the decision of that tribunal. Accordingly, it is expressly acknowledged that, in the event of recourse to a civil court by the undersigned or by any other party, the claims and privileges of the undersigned arising from any other document or from any other source are in no way to be diminished or compromised by virtue of this agreement.",
+ "At the time the Torah was given, the basis of livelihood and commerce of Jews was agrarian; agriculture was the source and support of their wealth and status for he who had copious produce was considered a rich man. Money was not fundamental or the basis of their activities; and when money was loaned it was not for the purpose of trade and acquisition, but in order to acquire bread and clothing by a person who could not afford such from the yield of his land and work. Accordingly, it is obvious that this poor debtor could not afford to pay interest, while the wealthy lender would suffer no perceivable loss in lending without interest….However, in the Middle Ages, by which time Israel had lost its share and inheritance in working the land and become a nation that sustained itself solely on commerce, the prohibition became onerous, for by then money had become the basis of [the Jews'] life and commerce; it became a business commodity to the lender and to the borrower equally. \"That your brother may live with you\" applied to both equally. Therefore, our sages saw fit to find a permissive manner to avoid this prohibition considering that, for such purpose, the Torah did not entirely forbid this matter.",
+ "The parties to this agreement desire to comply fully with the provisions of Jewish law prohibiting payment and acceptance of interest and for this purpose agree that the terms of this agreement shall be made subject to the terms of Hetter Iska as provided in the form set forth in Contemporary Halakhic Problems, IV (New York, 1995), pp. 380-383. All provisions of said Hetter Iska form shall be incorporated and made part of this agreement as is fully set forth herein."
+ ],
+ "Chapter 5 Medical Malpractice and Jewish Law": [
+ "My God, heal me and I shall be healed.
Let not Your anger be kindled that I be consumed.
My drugs and potions are Yours, whether good or bad,
whether strong or weak.
It is You who shall choose and not I;
Of Your will is the harmful and the effective.
Not upon my healing do I rely;
Only for Your healing do I watch.",
+ "JUDAH HALEVI",
+ "I. Introduction",
+ "Common law categorizes efficacious treatment carried out without consent of the patient, not as malpractice, but as simple battery. Unlike common law which regards any intentional non-consensual tactile contact with another person as a tort, Halakhah does not regard therapeutic \"wounding\" (ḥavalah) as a tortious battery. Jewish law does not accept the notion that lack of consent renders medical intervention tortious and certainly provides no basis for monetary recovery unless there is resultant physical harm. But, when the physician does cause damage, it would seem at least as a first impression, that the usual rules governing battery are applicable. Thus, in principle, Jewish law regards malpractice, not as an independent tort, but as a form of ḥavalah or battery.",
+ "In general, Jewish law assigns to the tortfeasor absolute liability for harm to person or property arising from his or her physical act. The connotation of the talmudic principle formulated by the Gemara, Bava Kamma 26b, \"Adam mu'ad le-olam\" (\"Man is always forewarned\") is that a person is always liable for damage resulting from an act committed by his body. It would then follow that a physician whose treatment results in harm to the patient should be liable for compensation even if the harm is the result of misadventure rather than negligence. Nevertheless, in point of fact, Jewish law does not hold the physician liable in any sense unless he has been negligent in his treatment. The reason or reasons for treating malpractice differently from ordinary forms of adam ha-mazik (lit.: man as tortfeasor) require elucidation. Moreover, the definition or delineation of culpable negligence as applied to medical malpractice is problematic.",
+ "The task of determining with precision the circumstances in which a physician will be held culpable is made difficult by the fact that the talmudic sources are sparse and cryptic. Moreover, early-day commentaries and codifiers offer little further clarification; quite to the contrary, their comments present further difficulties. In addition, at least until the contemporary period, the topic has, relatively speaking, received but scant attention in the writings of latter-day authorities.",
+ "One can but speculate with regard to the relative paucity of material devoted to this issue. It may well have been the case that during the medieval period, when in some countries Jewish medical practitioners were common, modalities of treatment were quite limited with the result that demonstrable malpractice was much rarer than at present. In later times, with the exception of observant physicians of German extraction, the religious commitment of most Jews who entered the medical profession was generally quite tenuous rendering it unlikely that such a physician would heed the summons of a bet din or feel himself bound by the provisions of Jewish law.",
+ "At present, although the Jewish community is graced by a sizeable and growing number of observant physicians, adjudication of a malpractice suit by a bet din is a rarity for the simple reason that, at present, all physicians are covered by malpractice insurance. Insurance companies are publicly held corporations and are hardly likely to avail themselves of the services of a bet din. Elsewhere, this writer has expressed the opinion that a Jew may properly sue a fellow Jew in a secular court provided that he does not accept a recovery greater than the insurance coverage. Although, technically, it is the insured who is the named defendant, the actual party interest is, and is commonly known to be, the insurance company. Hence, since the real party in interest is not Jewish, the prohibition against recourse to civil courts is not operative.",
+ "Recovery from an insurance company, in this writer's opinion, is appropriate even in instances in which such recovery would not be available in a bet din or in which the sum awarded is greater than would be allowed by a bet din. That is so even if, as a matter of Jewish law, the Jewish plaintiff cannot directly claim that, in an action against a non-Jew, the appropriate measure of damages is the enhanced standard adopted by the civil legal system. The insurance company is liable in contract rather than in tort. The claimant is a third party beneficiary of that contract. The contractual obligation is to indemnify the policyholder or the victim to the extent that a civil court would award damages against the insured. Thus, whether or not Jewish law would make a similar award for tort damages is rendered irrelevant. The insurance company has contracted to indemnify its insured in that amount simply because, in fact, it has been, or would have been, awarded by the court.",
+ "Parenthetically, the question of whether a contract of that nature is invalid by reason of asmakhta, i.e., lack of anticipation that the circumstances necessitating performance would actually arise, is a moot point. Any insurance company that might choose to deny an otherwise valid claim on the plea that the insurance policy serving as the basis of the claim is unenforceable by reason of asmakhta would not long remain in business. No rational policyholder would continue to pay a premium for coverage once he has discovered that the insurer will not honor any legitimate claim.",
+ "II. Early Sources",
+ "1. The Tosefta",
+ "The principles governing financial liability for malpractice are closely tied to the principles governing punishment for inadvertent manslaughter applicable in situations in which malpractice leads to death. Jewish law denies recovery of damages for wrongful death regardless of whether the death results from an act of homicide, negligent manslaughter or misadventure. Under certain carefully defined circumstances Jewish law prescribes exile to one of the designated cities of refuge as punishment for negligent manslaughter. Exile was imposed only during the historical period in which there was an incumbent High Priest and in which capital punishment might be imposed for willful acts.",
+ "In limiting the circumstances in which exile was required the Mishnah, Makkot 8a, states:",
+ "If [a person] throws a stone into his courtyard and slays: if the victim had permission to enter therein [the slayer] goes into exile; but if not, he does not go into exile, as it is written \"and when a person goes with his friend into a forest\" (Deuteronomy 19:5)—just as a forest [both] the victim and the slayer are permitted therein, similarly [the law applies] in every domain in which [both] the victim and the slayer are entitled to enter, to the exclusion of the courtyard of the householder since the victim does not have the right to enter therein. Abba Saul says: Just as the cutting of wood is a discretionary act, similarly [the law applies] in all instances of discretionary acts, to the exclusion of a father who beats his son, a teacher who strikes his pupil and a messenger of the court [who administers lashes].",
+ "Abba Saul's distinction is quite easy to grasp. The paradigm presented in Scripture involves accidental death resulting from an attempt to fell a tree in a forest. Such activity is entirely discretionary; the slayer was perfectly free to refrain from wood-chopping. Had he done so, no misadventure would have occurred. Since he was under no legal or moral duty to engage in that activity, he is held to a relatively high standard of prudence. A father who punishes his son, a teacher who chastises a pupil and the court official who administers punishment to a miscreant are all engaged in discharging a duty. Since they are duty-bound to perform such acts they are not punished even in cases of avoidable misadventure.",
+ "The Tosefta, Makkot, addenda 2:5, presents a rather different rule:",
+ "A messenger of the court who administers lashes with permission of the court goes into exile [if the victim dies]. A skilled physician who heals with license of the court and kills [his patient] goes into exile. One who performs an embryotomy [upon a fetus] in the woman's womb with license of the court and kills [the mother] goes into exile.",
+ "The rule formulated by the Tosefta seems to be at variance from the rule presented in the Mishnah in the name of Abba Saul. Abba Saul formulates the principle that a person who causes the death of another in the course of performing a duty is exempt from exile. The examples presented by the Tosefta, viz., a messenger of the court and a physician, seem similarly to be instances of persons engaged in discharging a duty and, in accordance with the rule formulated by Abba Saul, such persons should not be subject to exile.",
+ "R. Meir Simchah of Dvinsk, Or Sameaḥ, Hilkhot Rozeaḥ 5:6, suggests that the Tosefta expresses a view that is in disagreement with Abba Saul. Indeed, as recorded by the Gemara, Makkot 8a, in presenting his principle, Abba Saul appears to be disagreeing with the anonymous, and hence presumably majority, view recorded in the immediately prior sentence of the same Mishnah. The principle presented in the earlier statement of the Mishnah is predicated upon the identical biblical verse adduced by Abba Saul in support of his rule and appears to be an alternative, and hence conflicting, exegetical interpretation of the cited phrase. Assuming that there is a controversy between Abba Saul and the exponents of the first principle, the statement recorded in the Tosefta may be understood as an expression of the view of those who, as recorded in the Mishnah, disagree with Abba Saul.",
+ "Or Sameaḥ, however, recognizes a difficulty inherent in his position. Rambam, Hilkhot Rozeaḥ 5:6, rules in accordance with the position of Abba Saul in exempting a father and a messenger of the bet din from exile. Hence, according to Or Sameaḥ, it logically follows that a physician is also exempt from exile. Or Sameaḥ expresses amazement that Ramban, in his Torat ha-Adam, cites the Tosefta's ruling with regard to the culpability of the physician without noting that the Tosefta's statement is at variance with the position of Abba Saul. Or Sameaḥ further observes that the Tosefta is cited as normative by both Tur and Shulḥan Arukh, Yoreh De'ah 336:1.",
+ "Moreover, it is far from clear that there exists a controversy between Abba Saul and the authors of the first principle recorded in the Mishnah. R. Menachem ha-Me'iri, Hiddushei ha-Me'iri, ad locum, expressly declares that there is no controversy and that the two principles are not mutually exclusive. Me'iri regards the diverse exegetical interpretations of the phrase \"in a forest\" presented in the Mishnah as complementary rather than contradictory. For Me'iri, the term \"ya'ar\" is paradigmatic in serving to exclude arenas that are not comparable to a \"forest\" in any salient respect. Moreover, Rambam, Hilkhot Rozeaḥ 6:11, codifies the principle formulated in the earlier clause of the Mishnah. Thus, Rambam who, as previously noted, rules in accordance with Abba Saul, apparently saw no contradiction between Abba Saul's view and the principle earlier formulated in the Mishnah.",
+ "In stating that the Tosefta expresses a view at variance from that of Abba Saul, Or Sameaḥ does not expressly assert that the Tosefta follows the position expressed in the initial statement of the Mishnah. Or Sameaḥ may not have intended to posit a controversy between the Tanna'im cited in the Mishnah but rather to have regarded the Tosefta as expressing the novel, extra-canonical view of a Tanna whose position was rejected by the Mishnah. If so, the ruling of Shulḥan Arukh, Yoreh De'ah 336:1, in accordance with the Tosefta is all the more astonishing.",
+ "The apparent contradiction between the principle formulated by Abba Saul and the ruling of the Tosefta was first commented upon by R. Simon ben Zemaḥ Duran, Tashbaz, III, no. 82. Tashbaz raises the objection that \"the physician is also engaged in a mizvah\" and hence questions why the Tosefta regards the physician as culpable for misadventure. Tashbaz cryptically comments that the case of the physician can be distinguished from that of a father or a teacher but fails to indicate the substantive nature of the distinction. That lacuna is filled by Teshuvot Besamim Rosh, no. 386, a work of uncertain provenance commonly, but probably spuriously, attributed to Rabbenu Asher. Besamim Rosh observes that, whatever the result, in striking a child or a student, the father and the teacher are engaged in chastising the youth. Thus, even if the act had an untoward outcome it was nevertheless designed for an entirely different effect and, indeed, despite the subsequent tragic consequence, may well have served to cause the child to resolve to correct his behavior. Not so a battery committed by a physician that fails in the therapeutic goal. The physician's obligation is to heal; an act that causes the death of a patient is not at all an act of healing. Hence the act, albeit well-intended, does not serve to fulfill any mizvah. Accordingly, since it turns out that a physician who causes the death of his patient has not fulfilled any mizvah or discharged a duty, he is not excused from the penalty of exile. A similar distinction is drawn by Yad Avraham, Yoreh De'ah 336:1, in the name of Ma'aseh Rokeaḥ.",
+ "R. Chaim Joseph David Azulai, Birkei Yosef, Yoreh De'ah 336:6, also presents the same solution in the name of the author of Ma'aseh Rokeaḥ, R. Eli'ezer of Cracow, but with a slight variation. That authority asserts that the Mishnah's exoneration of the father and the teacher is limited to usual situations in which the misadventure occurred despite the fact that the father or the teacher did not employ excessive force, i.e., they acted in a manner that was incumbent upon them. However, the physician who causes the death of a patient has erred either in his assessment of the nature of the malady or of the appropriateness of the therapy he has administered. Since the physician's act was performed in error, the physician, despite his noble intentions, cannot be described as having been engaged in performing an act endowed with the nature of a mizvah. It would follow that, according to Birkei Yosef, a physician who properly assesses his patient's condition and administers appropriate treatment is not subject to exile if the patient unpredictably dies for an unknown reason.",
+ "As will be shown subsequently, a number of contemporary authorities also understand the Tosefta's statement with regard to imposition of exile to be limited to situations involving particular forms of negligence on the part of the physician. If so, there is no contradiction between the Tosefta and the general rule formulated in the Mishnah.",
+ "2. Ramban",
+ "The Gemara, Bava Kamma 85a, declares \"'… and he shall cause him to be thoroughly healed' (Exodus 21:19.)—From here [it is derived] that the physician has been given authority to heal.\" In Jewish law, as in all coherent legal systems, all activities are permissible unless they are expressly prohibited or contraindicated on the basis of some legal or moral consideration. If so, in the absence of any countervailing consideration, why should a physician require explicit permission to practice the healing arts? Absent the scriptural dispensation provided by this verse, why should a physician shrink from using his skills in order to cure a patient? In their respective commentaries on this talmudic passage, Rashi, Tosafot and Rashba explain that the constraint is theological in nature. To paraphrase Rashi's formulation: \"If God afflicts, how dare man attempt to cure?\" Or, as expressed by Tosafot, in curing the patient, the medical practitioner \"appears to thwart the divine decree.\" Such would be the physician's concern in the absence of specific dispensation; once permission is given, practice of the healing arts becomes intrinsic to God's providential guardianship of man and hence medical ministration is not only permissible or even commendable but is mandatory.",
+ "In his Torat ha-Adam, Shaar ha-Sakanah, Ramban presents the foregoing rationale for the need of specific authorization to practice medicine but prefaces that comment with an entirely different explanation. The verse in question, declares Ramban, is necessary in order to teach that the practice of medicine is not forbidden because of the possibility of a disastrous outcome. The physician is given authority to heal \"lest the physician say: 'Why should I [seek] this vexation? Perhaps I will err with the result that I become an inadvertent slayer of human souls.'\" Elsewhere in his Torat ha-Adam, Ramban writes, \"… since license was given to the physician to heal and, moreover, it is a mizvah that is incumbent upon him, he need have no concern; for if he conducts himself appropriately in accordance with his opinion he has naught but a mizvah in his medical ministrations, for God commands him to heal and his intellect coerced him to err.\"",
+ "Ramban is however troubled by the fact that, despite scriptural reassurance that he should have no moral qualms, the physician, found qualified and licensed to practice medicine by the bet din, who errs and causes the death of his patient is nevertheless held culpable of manslaughter and, if his error is non-lethal, is liable—at least according to the \"laws of Heaven\"—to pay compensation to his victim. If the physician is commanded to treat his patient and to ignore the potential for inadvertent error, how can he be held liable for doing what he is duty-bound to do?",
+ "Ramban's resolution of the problem is startling, to say the least. His solution is novel but seemingly paradoxical. Ramban responds by stating that the situation of the physician is analogous to that of a judge. The dayyan is commanded to sit in judgment and, declares the Gemara, Sanhedrin 6b, \"Lest the judge say, 'Why should I seek this vexation?' the verse states '[God is] with you in the matter of judgment' (II Chronicles 19:6)—the dayyan has only what his eyes see.\" Nevertheless, in some circumstances, the dayyan will be held liable for judicial malpractice. Ramban adds the remarkable comment that the judge is liable \"if he errs and it becomes known to the bet din that he erred … similarly [in the case of the physician], according to the laws of man he is not liable to payment but according to the laws of Heaven he is not quit until he pays for the damage and goes into exile for the death since it has become known that he erred [emphasis added] and has caused damage or caused death by means of a direct act.\"",
+ "Ramban formulates the curious position that the judge and the physician are liable in the eyes of Heaven—but only if they are found out. It is of course readily understood that neither the judge nor the physician can be required, even by Heaven, to make restitution if he remains unaware of his error and hence of his liability. But certainly Heaven is aware of the error and hence the person should not be guiltless in the eyes of Heaven even if, as a practical matter, he cannot be called upon to redress the wrong. A layman who commits an ordinary tort without ever becoming aware of the damage he caused, e.g., a person who throws a rock and unknowingly shatters a valuable vase, and whose act was unobserved, will never be called upon to make restitution simply because he is not identifiable as the tortfeasor but, assuredly, he is not guiltless in the eyes of Heaven. Yet the dayyan and the physician, declares Ramban, are guilty \"at the hands of Heaven\" only if it becomes known to them that they have caused harm.",
+ "Furthermore, Ramban's thesis is formulated in an attempt to resolve a difficulty but apparently falls short of doing so. Absent scriptural reassurance, the prudent physician and judge are pictured as abjuring their callings for fear of potential punishment. Assurance that liability is contingent upon actual awareness of resultant harm hardly seems to assuage such a concern.",
+ "It seems to this writer that Ramban's comment must be understood in light of the dual nature of the transgression inherent in misappropriation of property, commission of a tort and manslaughter. A person who deprives another of his property has committed an act of theft and in doing so has sinned against his fellow. In addition, he has violated the divine commandment prohibiting theft and has thereby sinned against God. The dayyan's putative concern that he may err in rendering judgment is not born of a concern for the welfare of the financially harmed litigant but of the dayyan's fear of sullying his own immortal soul by sinning against God. The verse \"God is with you in the matter of judgment\" serves to assure the judge that God joins in the judgment even if it is in error, i.e., insofar as God is concerned, the qualified judge who errs commits no sin. Indeed, theologically speaking, his error may, in a certain sense, be providentially ordained. In concurring in the judgment of the bet din, The Heavenly Court renders judgment not simply upon the pleadings of the litigants but upon a totality of considerations, many of which are likely to be unknown to mortals.",
+ "That consideration, however, is relevant only from the divine perspective; insofar as the obligations of a man to his fellow man are concerned, \"[the Torah] is not in Heaven\" (Deuteronomy 30:12). Hence the dayyan may be required to compensate the victim of his mistake if, in terms of terrestrial considerations, the dayyan has committed a culpable error. But, since in the eyes of Heaven he is entirely guiltless and a person who is unaware of any harm that he may have caused cannot compensate the victim, Heaven must hold him guiltless in every sense unless he becomes aware of his error. Thus assured, the dayyan has no reason to shirk the duties of his office. The dayyan is dedicated to his sacred calling and, if competent, dare not be dissuaded by fear of potential financial loss. If the dayyan errs, he will dutifully make restitution. His real fear is the fear of inadvertent sin and on that score the biblical verse serves to put his mind at ease.",
+ "Ramban, in this comment, formulates a remarkable thesis: Every trespass against one's fellow man constitutes a dual infraction: 1) an offense against one's fellow (bein adam le-ḥavero); and 2) an offense against God. Halakhah is replete with examples in which a bet din will not issue a monetary reward but the individual remains liable \"at the hands of Heaven.\" In such cases, Heaven will not grant forgiveness despite the fact that the aggrieved party is non-suited by the bet din. The dual nature of the infractions explains why there may be an obligation \"at the hands of Heaven\" even when there is no obligation at the hands of man.",
+ "Herein, in effect, Ramban posits the converse, i.e., an obligation \"at the hands of man\" despite the absence of liability in the eyes of Heaven. The dayyan who, in his error, unwittingly carried out a divine decree has committed no transgression against Heaven, but since the Torah \"is not in Heaven\" and since in terms of human considerations he has ruled improperly, he may be required to make restitution entirely as a matter of bein adam le-ḥavero. But such an obligation, since it is entirely between man and his fellow man, can be meaningful only when and if the existence of such an obligation becomes known to the guilty party. If it fails to become known, Heaven will impose no penalty because in the eyes of Heaven the individual in question is guiltless.",
+ "Having established this principle with regard to the dayyan, Ramban applies it as well to the physician who errs in treating his patient. A person who commits a battery commits a transgression vis-à-vis his fellow man as evidenced by the requirement to compensate for the harm done. In causing physical harm to another, he also transgresses the divine commandment \"he shall not exceed\" (Deuteronomy 25:3). The physician who errs in treating his patient is not engaged in therapeutic \"wounding\" excluded from that prohibition; he has committed a simple battery and has reason to fear that he has committed an offence against the Deity. Fear of committing such a transgression might well serve to discourage the physician from engaging in his profession. The verse \"and he shall cause him to be thoroughly healed,\" according to the understanding of the passage advanced by Ramban, serves completely to exonerate the physician from any transgression. In drawing a parallel between the dayyan and the physician Ramban undoubtedly intends to assert that any harm caused by the physician is the result of Heavenly decree. That concept is eloquently captured in the medical context in an aphorism coined by R. Moshe Hagiz: \"The unintentional act of the physician is the intent of the Creator.\" Since the erring physician is, in effect, a divine messenger, Heaven can hardly hold him responsible for the untoward results of his ministration.",
+ "But, again, the Torah \"is not in Heaven.\" Hence, in terms of obligation to his fellow man, the physician remains responsible for making his victim whole. But that is an obligation the physician incurs entirely vis-à-vis his fellow man and is devoid of any \"religious\" implications. In other cases failure to satisfy a financial obligation constitutes a \"religious\" infraction as well. Depending upon the circumstances, the \"religious\" obligation with regard to monetary compensation is born of an obligation to restore stolen or lost property, of contractual liability or of an obligation in tort. The physician's \"religious\" obligation could only be of the latter category but since he acts at the divine behest no such \"religious\" obligation exists. Accordingly, his obligation is solely in the nature of a duty owed a fellow man with no parallel duty to God to fulfill that duty. Hence, according to Ramban, if the physician remains unaware of his error he cannot be held culpable in any sense of the term.",
+ "However, it should then follow that when the error becomes known, the physician, no less so than the dayyan, should be held liable by the bet din. That is indeed the case according to biblical law. However, the Tosefta, Gittin 3:13, declares that the Sages found it necessary to grant the physician immunity \"for the welfare of society\" (mipnei tikkun ha-olam). In effect, they recognized that failure to hold a physician guiltless in instances of misadventure would result in many physicians declining to practice medicine for fear of financial liability. Nevertheless, the obligation \"bein adam le-ḥavero\" remains \"at the hands of Heaven\" even though in the eyes of Heaven the physician has done no wrong. The guilt recognized by Heaven is not for a sin against the Deity but for an offense against the victim. Apparently no similar conferral of blanket immunity was regarded as necessary in order to entice a qualified scholar to serve as a dayyan.",
+ "The statement that the physician is liable \"at the hands of Heaven\" even though in the eyes of Heaven he has committed no harm means simply that a moral obligation bein adam le-ḥavero does exist. Moreover, the statement has a very practical effect, viz., the victim is entitled to exercise self-help (tefisah), i.e., seizure of property or funds, without authorization of the bet din. According to many authorities self-help is a remedy available in all cases in which Halakhah posits an obligation \"at the hands of Heaven\" particularly in instances in which the obligation is biblical in nature.",
+ "Ramban's comment with regard to culpability for exile may be understood in a similar fashion. The nature of exile in instances of inadvertent manslaughter is complex. In a number of instances the Gemara describes exile as a form of expiation, i.e., as atonement for inadvertent transgression of the prohibition against homicide. However, since Ramban asserts that the physician who \"conducts himself appropriately … has naught but a mizvah,\" such a physician is clearly not in need of expiation.",
+ "Exile serves not only as expiation but as a punishment as well. Evidence that exile is also a form of punishment is found in the discussion of the Gemara, Makkot 2b, regarding the punishment of witnesses who by accusing a person of manslaughter seek to have him banished to one of the cities of refuge and whose testimony is impeached (edim zomemim). The general rule is that such witnesses receive punishment in kind, i.e., they are accorded the selfsame punishment they sought to have meted out to the defendant against whom they testified. Witnesses who testify with regard to unintentional manslaughter but who are impeached are not themselves subjected to exile. However, that is so only because they are expressly excluded from exile on the basis of exegetical interpretation of a biblical verse. It is readily established that the punishment of impeached witnesses is not designed to expiate their transgression as evidenced by the fact that the Gemara, Makkot 2b, declares that witnesses are not liable to monetary payment in the form of kofer, or \"atonement,\" if their testimony concerning an ox that gores a person is impeached.",
+ "The master of an ox that has previously committed such acts and who has been properly admonished regarding the irascible nature of his animal is liable to payment of a sum of money in an amount equal to the amount the victim might have commanded were he to be sold as a slave. That payment is designated as \"kofer\" or \"atonement,\" i.e., it is designed, not as restitution, but as expiation of the transgression inherent in the master's negligence in not exercising proper supervision over his ox. However, in contradistinction to other cases of false testimony, witnesses who seek to subject the master of an ox to such punishment but whose testimony is impeached are not subject to monetary punishment in the form of kofer. The principle reflected in this provision is that impeached witnesses are subject to punishment but their punishment does not serve to expiate their transgression. Accordingly, since the essence and purpose of kofer is expiation and atonement, whereas the punishment of impeached witnesses is not designed to serve as expiation, impeached witnesses are not called upon to make such payment. Thus, since an explicit biblical verse is necessary to exclude impeached witnesses from the penalty of exile, it is evident that the exile to which impeached witnesses would have been subjected had Scripture not excluded them from that penalty would have been in the nature of punishment rather than of expiation. But, assuredly, the physician who \"has naught but a mizvah\" does not deserve to be punished.",
+ "However, exile serves a third purpose as well, viz., it serves to preserve the perpetrator from vengeance at the hands of the blood-avenger.",
+ "Ramban's comment to the effect that the verse \"and he shall cause him to be thoroughly healed\" serves to assure the physician that he need not be concerned over possible unintentional manslaughter \"unless he becomes aware that he has erred\" can be understood on the basis of the multifaceted purpose of exile. In this case as well, the physician whom Scripture seeks to reassure is not a physician whose concern is his own safety or well-being but the physician whose concern is the possibility of transgression. The verse serves to establish that a physician who errs inadvertently has committed no transgression whatsoever. Hence, he incurs no Heavenly punishment and requires no expiation. Accordingly, if he never discovers his error, nothing is lost. He is, however, subject to the wrath of the blood-avenger. That, however, is a contingency that he need not fear unless his error becomes known. But even if his error becomes known he faces no temporal danger because of the safety afforded him through exile in a city of refuge.",
+ "III. Exclusion from Culpability for Exile",
+ "As noted earlier, Shulḥan Arukh, Yoreh De'ah 336:1, in accordance with the statement recorded in the Tosefta, rules that a physician who causes the death of his patient is liable to exile. Ostensibly, the sources recording the physician's culpability for exile declare that he is liable to banishment for causing the death of the patient regardless of whether he has been negligent. Ofttimes a surgeon performs an operation knowing quite well that there is a statistical probability that the patient will not survive the surgery. Nevertheless, both the surgeon and the patient assume that risk because, absent surgical intervention, death is either a certainty or more likely to occur. However, on the basis of the distinction drawn by the Birkei Yosef between a father or a teacher on the one hand and a physician on the other, there would appear to be no reason to require exile in such circumstances. In such an instance the physician commits no error. He is engaged in an attempt to perform a mizvah no less so than the father who engages in an attempt to chastise a son or a teacher who endeavors to correct a pupil. However, that conclusion does not flow from the earlier-cited distinction formulated by Besamim Rosh.",
+ "The question of the culpability of a physician who causes the death of his patient but who has committed no error is also addressed by a number of contemporary authorities. R. Zalman Nechemiah Goldberg, Teḥumin, XIX (5759), 320, asserts that, since there is no element of \"error,\" the situation is comparable to a case of ones, or unavoidable death, which does not entail exile. That analysis is imprecise in the sense that in cases of statistical danger the physician knowingly and willingly assumes the attendant risk. Assuming that negligence is not a necessary element in imposition of the penalty of exile, the physician should indeed be culpable since the situation is not akin to a case of unavoidable or unpreventable death and certainly not to a case of force majeure.",
+ "Other scholars clearly go beyond Rabbi Goldberg's position and maintain that a physician who causes the death of a patient through no fault of his own but as the result of a bona fide error of judgment is not liable to exile. One authority, R. Yechiel Michel Epstein, Arukh ha-Shulḥan, Yoreh De'ah 336:2, asserts that a physician is exiled only if the misadventure he has caused was the result of \"laziness\" (hitrashlut) or failure to exercise due diligence (lo iyein yafeh). From a parenthetical comment incorporated in that ruling it appears that Arukh ha-Shulḥan understands that the distinction between a father or a teacher and a physician as reflected in the Tosefta lies in the consideration that the physician to whom the Tosefta refers is a physician who has been negligent in discharging his duties whereas the father and the teacher of whom the Mishnah speaks have not been negligent.",
+ "R. Shlomoh Zalman Auerbach, as quoted by Abraham S. Abraham, Nishmat Avraham, Yoreh De'ah 376:1, note 7, suggests that the penalty of exile is not imposed in instances of an error in judgment. That penalty, he suggests, is imposed only if the physician performs an unintended act, e.g., he reaches for the wrong medicine or erroneously takes hold of a non-sterilized scalpel.",
+ "A similar but markedly different view is reflected in the comments of R. Moses Feinstein, Iggerot Mosheh, Even ha-Ezer, IV, no. 31, s.v. u-mah she-nizkar. Iggerot Mosheh declares that as long as there is no better-qualified physician available and the physician has acted with due deliberation in accordance with his knowledge and skill his act is regarded as tantamount to that of an anus i.e., a person whose act is unavoidable, and he is not liable to exile. Action on the part of the physician in accordance with the dictates of his intellect resulting in misadventure is thus equated with force majeure. Thus, Iggerot Mosheh is in agreement with Arukh ha-Shulḥan and Rabbi Auerbach in ruling that non-negligent error does not render the physician culpable for exile. However, unlike Arukh ha-Shulḥan, Iggerot Mosheh asserts that if the physician acted \"in haste\" (be-behilut), even if it seemed to him that no further reflection was necessary, the physician is also exempt from exile. In that case, however, the physician is exempt from exile, not because he is without guilt, but because the physician's negligence is of a magnitude for which exile is an insufficient punishment. Exile, opines Iggerot Mosheh, is reserved solely for situations in which",
+ "the matter was not urgent and it would have been possible to wait for a more highly qualified physician or in situations in which the physician was the most highly qualified but he did not reflect more than his wont, then if [he acted] in accordance with the manner of physicians [in which case] there is no negligence, he is liable to exile and [exile] serves as expiation [for his transgression].",
+ "Presumably, reaching in haste for the wrong medicine or for an unsterilized scalpel, according to Iggerot Mosheh, would not result in exile because such an act constitutes gross negligence for which exile is an insufficient expiation.",
+ "Failure to administer a diagnostic test that would have led to proper treatment represents an act of nonfeasance rather than malfeasance. Accordingly, it would follow that such forms of malpractice should not result either in subjecting the physician to exile or to liability to tort damages. However, if failure to administer such a test leads to overt intervention resulting in the death of the patient, the physician, according to Arukh ha-Shulḥan, would seem to be culpable for such intervention since failure to administer such a test represents failure to exercise due diligence (lo iyein yafeh). Similarly, according to Iggerot Mosheh, the physician must be judged to have acted \"in haste\" (be-behilut). However, according to Rabbi Auerbach, if the physician did not order the test because he erroneously regarded it to be unnecessary, and proceeded with treatment that results in harm he has committed an error of judgment for which he does not incur the penalty of exile.",
+ "Similarly, an act of omission cannot result in liability for tort damages, although if the physician is regarded as a bailee, as will be discussed later, he may be liable for resultant damages by virtue of having failed to perform his duties as a bailee. Tort liability for harm caused by active intervention that would have been avoided had the diagnostic test been ordered must be examined in the context of the general provisions governing a physician's liability and, as will be discussed subsequently, may be contingent upon a possible distinction between ordinary negligence and gross negligence in the physician's failure to administer the diagnostic test.",
+ "R. Moses Sofer, Teshuvot Hatam Sofer, Oraḥ Hayyim, no. 177, presents a position that appears not only to qualify the ruling of Shulḥan Arukh but also to be at variance from that normative ruling. In that responsum Hatam Sofer addresses a tragic case of inadvertent poisoning. A servant girl fainted from sudden fright. Her mistress sought to revive her by giving her whiskey to drink. However, in reaching for the flask of whiskey she inadvertently took hold of a jar of \"petrol\" (probably kerosene). The liquid poured into the young lady's throat \"went down into her innards and the lass was burned.\" Her mistress, understandably consumed by feelings of guilt, sought advice with regard to a proper form of expiation. In his responsum, Hatam Sofer opines that the woman who administered the poisonous substance was far less culpable than a father or a teacher who chastises a child. Hence, asserts Hatam Sofer, were such a penalty still imposed in our day, she would not be subject to the punishment of exile. Rav Pe'alim, III, Oraḥ Hayyim, no. 36, s.v. ve-atah, objects to Hatam Sofer's analysis on the grounds that the case of the woman is comparable to that of a physician who, according to the Tosefta and the ruling of Shulḥan Arukh, Yoreh De'ah 336:1, is liable to exile. The same objection was later raised by R. Yitzchak Ya'akov Weisz, Teshuvot Minḥat Yizḥak, III, no. 104, sec. 5.",
+ "R. Samson Aaron Polonski, Divrei Aharon, no. 34, sec. 2, attempts to defend Hatam Sofer's response by arguing that it is predicated upon an earlier ruling of R. Simon ben Ẓemaḥ Duran, Tashbaz, III, no. 82. As will later be more fully discussed, Tashbaz asserts that a physician is culpable only for death resulting from an act performed by his own hand or by an instrument wielded by him, but that a physician who treats patients by means of \"liquids or medicaments\" is not similarly liable even \"at the hands of Heaven.\" Tashbaz' distinction is presumably based upon the consideration that culpability is contingent upon proximate cause which, in Jewish law, is narrowly defined. Harm done by a hand is direct; poison, however, must first be absorbed by the body and hence the resultant harm is indirect, i.e., it is effected through a form of gerama.",
+ "That analysis of Hatam Sofer's position seems implausible. Hatam Sofer's choice of words in describing the effect of the poison as \"burning\" internal organs was probably expressly intended to distinguish the case under discussion from the type of act for which Tashbaz declined to assign culpability. Pouring acid on a person's body is no less the proximate cause of resultant harm than is incision with a scalpel. The effect of acid is far different and far more immediate than poison that, to do harm, must first enter the bloodstream. Hatam Sofer's description of the \"burning\" effect of \"petrol\" clearly indicates that he presumed the effect to be comparable to that of acid.",
+ "Even more problematic is the fact that, in addressing an entirely different incident in Teshuvot Hatam Sofer, Hoshen Mishpat, no. 184, Hatam Sofer remarks, \"for indeed the Sages, ipso facto, exempted from exile a physician who causes the death of a patient.\" That categorical statement seems to be erroneous since the only explicit mention of a physician occurs in the Tosefta and the Tosefta declares the physician to be subject to exile.",
+ "IV. Financial Liability",
+ "1. The Problem",
+ "Unlike exile, which has lapsed in our era, a suit for actual physical harm continues to be actionable before a bet din. The rule with regard to financial liability in instances of malpractice is recorded in Shulḥan Arukh, Yoreh De'ah 336:1. Shulḥan Arukh declares:",
+ "[A physician] should not engage in the practice of medicine unless he is proficient and [only if] there is no one greater than he in that [locale] for otherwise he is a shedder of blood. If [the physician] practices medicine without license of a bet din [and causes harm] he is liable for payment even if he is proficient. However, if he practices medicine with license of a bet din but errs and causes harm he is not liable according to the laws of man but he is liable according to the laws of Heaven.",
+ "That ruling is based upon two separate statements of the Tosefta. The Tosefta, Bava Kamma, 6:6, states that a physician who practices with license of a bet din and causes harm \"is exempt according to the laws of man but his judgment is turned over to Heaven\" and posits the same rule with regard to a physician who performs an embryotomy. In antiquity, since a Caesarian section almost always resulted in the death of the mother, an embryotomy was the sole available means of preserving the life of a woman carrying a hydrocephalic fetus whose head was too large to pass through the birth canal. The rule with regard to medical malpractice is repeated in somewhat different language by the Tosefta, Bava Kamma 9:3. In the latter formulation the rule pertaining to the physician is coupled with identical rules applicable to a father, a teacher and an agent of the bet din. With regard to each of those individuals the rule presented by the Tosefta provides that when the individual acts with permission of the bet din he is not liable but includes the caveat that \"if he wounds more than is proper he is liable.\"",
+ "Magen Avraham, in his commentary on the earlier statement of the Tosefta, Bava Kamma 6:6, explains that the provision indicating that the judgment of the physician who causes harm \"is turned over to Heaven\" connotes nothing more than a declaration of the physician's liability for intentional infliction of harm. Magen Avraham understands the Tosefta as declaring simply that, since God knows the physician's intention, He will hold the physician liable for willful battery; however, a physician who had no intention of causing harm is guiltless even in the eyes of Heaven. Magen Avraham's analysis of the Tosefta is clearly contradicted by Shulḥan Arukh. Following Ramban's earlier-cited statement, Shulḥan Arukh declares unequivocally that the physician \"is liable according to the laws of Heaven.\" Unlike the phrase \"turned over to Heaven,\" which may connote that the matter is left to Heaven for adjudication in light of the attendant circumstances, the term \"is liable according to the law of Heaven\" is a declaration of absolute liability that is quite independent of intent. Shulḥan Arukh and Ramban apparently understood the phrase \"but his judgment is turned over to Heaven\" as an unqualified statement indicating liability, at least in the eyes of Heaven, for even inadvertent harm.",
+ "The notion of exoneration by a human court but culpability in the eyes of Heaven is not immediately recognizable as an application of general principles of tort liability with regard to battery. As previously noted, the Gemara, Bava Kamma 26b, establishes the principle that, unlike harm caused by a person's animal or property, a person is always liable for damage caused by his body (adam ha-mazik). If so, it would follow that a physician should be held responsible for any harm that he causes, regardless of whether the damage is the result of negligence or of misadventure. Although Ramban, Bava Mezi'a 82b, and as cited by Shitah Mekubbezet, Bava Mezi'a 82b, s.v. ve-atah be-shem, disagrees, Tosafot, Bava Mezi'a 82b, do carve out an exception to that rule in instances of an entirely unavoidable harm (ones gamur) as, for example, in the case of a person who rolls over in his sleep and in the course of doing so breaks utensils that have been placed next to him.",
+ "Presumably, the harm for which a physician is not liable by a bet din but for which he is held accountable in the eyes of Heaven is not of the nature of an entirely unavoidable misadventure for which, according to Tosafot, there is no liability. This assessment is based upon two factors: 1) according to Tosafot, if the harm was entirely unavoidable, there is no liability even in the eyes of Heaven; 2) Shulḥan Arukh rules that the same act, if it leads to the death of the patient, results in exile of the physician. As shown earlier, many latter-day authorities maintain that a physician is subject to exile only if he could have avoided the death of the patient by modifying the therapeutic procedure or if the procedure was performed in error. It is certainly the case that, according to Tosafot, a physician who properly performs a needed procedure that inadvertently results in harm as a result of sheer misadventure incurs no liability even in the eyes of Heaven. Thus, according to Tosafot, the liability \"according to the laws of Heaven\" of which the Tosefta and Shulḥan Arukh speak is limited to instances of harm resulting from some form of negligence. According to Tosafot, there are no exemptions from tort liability with regard to harm caused by a person; hence, according to Tosafot, financial liability should exist not only \"according to the laws of Heaven\" but should be imposed by a terrestrial bet din as well.",
+ "2. Mipnei Tikkun ha-Olam",
+ "a) Financial Immunity",
+ "The concept of liability \"at the hands of Heaven\" must be understood on the basis of yet a third statement recorded in the Tosefta. The Tosefta, Gittin 3:13, declares: \"A physician who practices medicine with the license of a bet din and causes harm: if inadvertently, he is not liable; if intentionally, he is liable—because of the welfare of society (mipnei tikkun ha-olam).\" The phrase \"mipnei tikkun ha-olam\" must be understood as explaining the first portion of the Tosefta's compound statement, i.e., as explaining why the physician is exonerated in cases of inadvertent harm, rather than as explaining why he is liable for intentional harm as recorded in the second portion of that statement. Thus the Tosefta, in effect, informs us that, the physician in principle should be fully liable even for harm caused inadvertently but that he is exonerated because of concern for the welfare of society, i.e., he is exonerated from tort liability by rabbinic decree designed to promote the welfare of society. The Sages were concerned that a person possessing medical skills might be fearful of malpractice liability and therefore renounce the practice of medicine. Accordingly, the Sages conferred qualified immunity upon the physician in order that he not be discouraged from practicing his profession. The Sages decreed only that the bet din not render judgment against the physician; they did not seek to abrogate the fundamental biblical law. Accordingly, the physician remains liable \"at the hands of Heaven.\"",
+ "Thus the basic problem is resolved: In terms of biblical law the physician is fully liable in accordance with the principle adam mu'ad le-olam; he is exonerated solely by reason of rabbinic enactment mipnei tikkun haolam. The remaining question is a determination of the parameters of the immunity conferred upon the physician by the Sages.",
+ "b) Exclusions from Immunity",
+ "(1) Improper Conduct",
+ "As noted earlier, the Tosefta, Bava Kamma 9:3, declares that a physician who \"wounds more than is proper\" is liable for damages. The clear implication is that such damages are to be awarded by the bet din. In order to make that statement compatible with the statements of the Tosefta, Gittin 3:83 and Bava Kamma 6:6, exonerating the physician in cases of error, R. Simon ben Ẓemaḥ Duran, Tashbaz, III, no. 82, explains that the phrase \"more than is proper\" refers to intentional infliction of harm for which the physician is, of course, liable as is expressly stated by the Tosefta, Gittin 3:13. A similar act resulting in the death of the victim, adds Tashbaz, would not lead to exile because a person who willfully takes a life is not subject to exile even though he cannot be executed because of lack of prior admonition. R. Yechezkel Abramsky, Hazon Yeḥezkel, Bava Kamma 9:3, Hiddushim, depicts wounding \"more than is proper\" as an act that is \"kemezid,\" i.e., as an act that is akin to an intentional act. In his Bi'urim, loc. cit., Rabbi Abramsky adds the comment \"for to that extent it is within his power to safeguard himself that he not wound.\"",
+ "There appears to be a significant difference between the comments of Tashbaz and those of Rabbi Abramsky with regard to the proper understanding of the Tosefta. According to Tashbaz, a physician can never be held liable for negligence; his liability, as announced by the Tosefta, is limited to wanton infliction of harm that is tantamount to mayhem. Rabbi Abramsky, however, understands the Tosefta as extending the physician's liability beyond intentional infliction of harm. According to Rabbi Abramsky, the phrase \"wounding more than is proper\" connotes extending an incision or incising the wrong area and is paradigmatic of an act that a prudent physician would not perform even inadvertently. As noted earlier, according to Tosafot, a person is never liable, even in the eyes of Heaven, for a harm that is entirely unforeseen and hence completely unavoidable.",
+ "In what case, then, is there liability in the eyes of Heaven but no award of damages by a bet din? The Tosefta, according to Rabbi Abramsky's understanding, seems to refer to an act that in other legal systems would be categorized as gross negligence as opposed to ordinary negligence. Constant vigilance requires uninterrupted attention and concentration and a person, although endeavoring to be prudent, may momentarily relax his vigilance and commit a negligent act that might have been avoided, but only with a greater degree of attentiveness. Gross negligence results, not from a momentary lapse of concentration, but from a type of thoughtlessness or inattention that is readily avoidable. The Tosefta presumes that cutting tissue more extensively than is necessary is an example of gross negligence. In exempting the physician from liability lest he be deterred from practicing medicine, the Sages found it necessary to exempt the physician only from liability resulting from ordinary negligence. Since no person is always unflaggingly vigilant, sooner or later every physician will commit an act that must technically be categorized as a negligent act. Failure to protect a physician from liability that he must anticipate as a virtual certainty may prompt the physician to seek another means of earning a livelihood. Therefore, the Sages conferred immunity from financial liability upon him \"mipnei tikkun ha-olam.\" Gross negligence, however, is not at all inevitable. A competent physician does not anticipate that in the course of his career he will be guilty of gross negligence. Hence the specter of liability in instances of gross negligence will not induce him to forsake medicine. Moreover, it may well be assumed that the Sages would have indeed preferred that a person who, knowing his own nature, recognizes that he will be prone to gross negligence desist from the practice of medicine.",
+ "Curiously, R. Samuel ha-Levi Woszner, Teshuvot Shevet ha-Levi, Yoreh De'ah, no. 151, cites Tashbaz' interpretation of the phrase \"more than is proper\" verbatim but proceeds to rule in a manner consistent with Rabbi Abramsky's understanding of the Tosefta. The question that came before Rabbi Woszner involved a dentist who, in the course of drilling a diseased tooth, caused the drill to penetrate a healthy tooth. The issue confronting Rabbi Woszner was the dentist's liability for expenses incurred in the repair of the healthy tooth that the dentist had damaged. In his responsum Shevet ha-Levi cites the comments of Tashbaz and without further elaboration adds \"but if … he drilled in a site in which he did not need [to drill], even if it was in the nature of an inadvertent act, with regard to the law of compensation, it is [regarded as] purposeful.\"",
+ "As Shevet ha-Levi himself notes, there are situations in which cutting or drilling healthy tissue is not necessarily indicative of negligence. Nevertheless, in the overwhelming majority of cases, it is likely that incision of healthy tissue occurs because of negligence. Somewhat surprisingly, Shevet ha-Levi concludes that the physician or dentist cannot be exonerated unless the practitioner \"had no control over his hand whatsoever.\" That conclusion is surprising since Shevet ha-Levi presumably accepts a distinction between what has earlier been categorized as \"gross negligence\" versus ordinary negligence. If so, there are undoubtedly some situations in which a practitioner has not lost control of his hand but, nevertheless, has not been grossly negligent.",
+ "(2) Absence of Licensure",
+ "In conferring financial immunity upon the physician the Sages limited this enactment to a physician who ministers to patients \"with permission of the bet din.\" Since, in our day, the practice of bet din licensure of physicians has lapsed, the applicability of the rule providing for such immunity is subject to question. Citing Maharil, Birkei Yosef, Shiyurei Berakhah, Oraḥ Hayyim 328:1, declares that when the civil authorities regulate the practice of medicine and grant licenses to practitioners no further permission from a bet din is needed. Arukh ha-Shulḥan, Yoreh De'ah 336:2, also seems to regard government licensure as tantamount to authority conveyed by a bet din. In his earlier-cited responsum, Shevet ha-Levi is even more explicit in stating that, in our day, the bet din, in effect, constructively acquiesces to licensure by civil authorities.",
+ "Divrei Sha'ul, Yoreh De'ah 336:1, cites Bet Hillel who defines a \"proficient\" physician (mumḥeh) as one who possesses a \"document [issued] by the great physicians in the places where he studied the science [testifying] that he studied and is proficient.\"",
+ "Bet Hillel, Yoreh De'ah 336:1, declares that the status of any physician accepted by the populace of the city is identical to that of a physician who has been licensed by a bet din. Bet Hillel's ruling is predicated upon the consideration that, in licensing the physicians, the bet din is not performing a judicial function. Rather, the bet din is acting in an administrative capacity in order to preserve the health and welfare of the members of their society. Preservation of social welfare is an inherent right and duty of society. Thus, in this matter, as in other matters, the bet din acts in a representative capacity in exercising the regulatory power of the society it represents. Nevertheless, in a final comment, Divrei Sha'ul seems to bemoan the fact that licensure by the bet din has lapsed.",
+ "Shulḥan Arukh, Yoreh De'ah 336:1, rules that, despite having received permission of the bet din to practice medicine, a physician should not treat a patient if a more qualified practitioner is available. That ruling apparently applies even to a physician who has been granted permission to practice medicine by a bet din. Hazon Yeḥezkel, Bava Kamma 9:3, explicitly declares that a physician who fails to defer to a more qualified practitioner \"has no license from the bet din\" and, in case of misadventure, is to be held liable as would be the case were he an unlicensed practitioner. In effect, the license granted a physician by the bet din is qualified in nature and is contingent upon the unavailability of a more proficient practitioner.",
+ "Shevet ha-Levi, IV, Yoreh De'ah, no. 151, expresses doubt with regard to whether, in contemporary society, the obligation to defer to a more qualified practitioner remains in effect since, in our day, physicians who are both \"more and less qualified practice this profession and all of them are licensed.\" Although R. Eliezer Waldenberg, Ramat Raḥel, no. 22, sec. 5, declares that it is not necessary to refer a patient to a more competent specialist when both the complaint and the treatment are well-known and routine, Shevet ha-Levi is certainly in error with regard to any non-routine matter requiring informed medical judgment and sophisticated decision-making. In such cases the patient must be referred to the more competent and more experienced specialist provided that time permits and that the specialist is willing and able to treat the patient. Similarly, when the sheer number of patients is so great that the more proficient specialist cannot adequately treat all who are in need of his services, a less competent physician is not only permitted to treat, but must treat, the patient as long as he is the best qualified of the physicians available to the patient.",
+ "(3) Mipnei Tikkun ha-Olam in Light of Ramban's Analysis of the Liability of an Artisan",
+ "According to Ramban, who, as noted earlier, maintains that an individual is liable for even unforeseen and unavoidable harm caused by his person, it would seem that a rabbinic decree conferring immunity from tort liability was necessary to provide immunity not only in instances of ordinary negligence but in cases of absolutely unavoidable harm as well. However, such a conclusion may not be correct. Indeed, according to Ramban, Bava Mezi'a 82b and as cited by Shita Mekubbezet, ibid., s.v. ve-atah be-shem, the principle adam mu'ad le-olam should not apply to a physician acting with the consent of his patient and not compensated for his services. The Gemara, Bava Kamma 99b, declares that an uncompensated ritual slaughterer who, in the process of slaughtering the animal, inadvertently renders it non-kosher is not liable for damages; if, however, he receives a fee for his services he is liable. Ramban apparently maintains that an artisan is not liable for damages in tort since he acts with the permission of the owner of the property. In effect, Ramban concedes that although, in principle, a person who causes unavoidable harm is liable for his act, nevertheless, one who performs the act with the permission of the person harmed thereby is not liable in tort for unavoidable damage. Hence an artisan is liable as a bailee rather than as a tortfeasor. There is, however, a difference between liability as a tortfeasor and liability as a bailee. Were the artisan to be regarded as a tortfeasor, his liability would be absolute; whereas, as a gratuitous bailee, he is liable only if he is negligent. If the artisan receives compensation his status is that of a bailee for hire who is liable for all damages other than those incurred as a result of ones, i.e., damages totally beyond his control.",
+ "The statement of the Tosefta indicating that a physician is immune from liability only by virtue of rabbinic decree is problematic when examined from the vantage point of Ramban's position. It would stand to reason that the status of the physician should be identical to that of the slaughterer, i.e., the physician who acts with the consent of the patient should not be liable as a tortfeasor just as the slaughterer is not regarded as a tortfeasor. Thus a physician who receives no fee should not be liable for damages. Even assuming that the physician is regarded in Halakhah as a bailee, the physician who has faithfully discharged his duties cannot be held liable even in the eyes of Heaven unless he is compensated for his services. However, in assigning liability to the physician according to biblical law, the Tosefta makes no distinction between a physician who charges a fee and a physician who renders his services pro bono. The problem, then, is that, even if he is regarded as a bailee, a physician who is not compensated should, according to Ramban, have the status of a gratuitous bailee who, even absent a rabbinic decree, is not liable other than for damage that occurs as a result of negligence.",
+ "R. Yechezkel Abramsky, Hazon Yeḥezkel, Bava Kamma 9:3, in drawing a distinction between a physician and a father or a teacher identical to the distinction cited earlier in the name of Besamim Rosh, asserts that Ramban's rationale in exempting an artisan from tort liability is applicable only if the damage is caused by the artisan in the course of fulfilling his function as an artisan. However, argues Rabbi Abramsky, a physician who harms rather than heals is not engaged in medical ministration and hence is not functioning in his capacity as an artisan. Hence, according to Ramban, absent a rabbinic decree, even an uncompensated physician would be liable for damages.",
+ "However, even conceding that a physician who commits an error is not functioning in his capacity as a physician, that consideration does not seem to explain the physician's liability according to Ramban. There is no reason to assume that an artisan is not liable for damages simply because of the fact that he is an artisan as Rabbi Abramsky seems to imply. Rather, as explained earlier, his immunity from liability is based upon the consideration that he has been granted license to perform the act that caused harm. In effect, his act becomes a licensed tort for which there is no liability as adam ha-mazik. The artisan remains liable only for such loss as a bailee is liable by virtue of his duty of care as a bailee.",
+ "The problem is resolved somewhat differently and, in this writer's opinion, more cogently by R. Joshua of Kutna, Yeshu'ot Yisra'el, Hoshen Mishpat 25:3. Yeshu'ot Yisra'el asserts that an artisan is immune from liability according to Ramban only because he was granted permission to ply his craft by the owner of the property. However, a physician who performs an unnecessary procedure does not act with the permission of the patient since the patient does not give permission for unnecessary procedures and hence the physician is exonerated only by virtue of rabbinic enactment \"for the welfare of society.\" Yeshu'ot Yisra'el apparently maintains that this is also the case in situations in which the patient did not survive the surgery because of \"weakness;\" in effect, such a procedure is unwarranted and the patient did not give permission for an unwarranted procedure. That analysis is similar to the earlier-cited distinction between a father or teacher, who are not culpable because they were engaged in discharging a duty, and a physician who, if acting in error, fulfills no obligation and would not apply to a case in which the procedure was appropriate but a mishap occurred in the course of its execution. Accordingly, if the surgery was appropriate but the patient succumbs as a result of inadvertent error committed by the surgeon, Ramban, according to Yeshu'ot Yisra'el, would maintain that the surgeon is not to be held liable even absent the consideration of \"the welfare of society.\"",
+ "V. Divergent Positions",
+ "1. Rabbenu Nissim",
+ "Rabbenu Nissim (Ran), in his commentary on Sanhedrin 84b, espouses a view entirely at variance with that of Ramban and Shulḥan Arukh and apparently also in contradiction to the rule formulated by the Tosefta. Rabbenu Nissim maintains that a physician is in no way liable for inadvertent error. Rabbenu Nissim explains that \"when a proficient physician errs in his medical ministrations he is not acting inadvertently (shogeg) but out of compulsion (ones) for he heals with [divine] authority… and he has only that which his eyes see as we say with regard to a judge who has erred, [i.e.], that his heart coerced him.\"",
+ "Despite the rejection of the view by both Ramban and Shulḥan Arukh, Ran's position is cited with approbation by the nineteenth-century authority, R. Joseph Saul Nathanson, Divrei Sha'ul, Yoreh De'ah 336:1. Divrei Sha'ul notes, as did Besamim Rosh before him, that a person who inadvertently commits a transgression in the course of attempting to fulfill a mizvah is exempt from the sacrificial offering required for expiation of inadvertent sin. By the same token, asserts Divrei Sha'ul, it would be reasonable to assume that if a person commits a tort in the course of fulfilling a mizvah there should be no financial liability in the eyes of Heaven. More significantly, the Gemara, Sanhedrin 84b, establishes that therapeutic \"wounding\" is not proscribed by the biblical prohibition against battery. The exclusion of therapeutic \"wounding\" is predicated upon a principle of rabbinic exegesis knows as a hekesh, i.e., the juxtaposition of two different legal categories, which has the effect of transposing one or more halakhic provisions already established in one of those categories to the other category. In this instance the hekesh is based upon the juxtaposition of references to the smiting of an animal and the smiting of a man in Leviticus 24:17-18. The Gemara declares, \"Just as a person who smites an animal for therapeutic purposes is not liable so also a person who smites a man for therapeutic purposes is not liable.\" The inference to be drawn from that statement, argues Divrei Sha'ul, is that a person who inadvertently causes harm in the course of attempting to perform a therapeutic procedure is totally exonerated even in the eyes of Heaven, as is the case with regard to a person who causes harm to an animal in the course of a failed attempt to cure the animal. Divrei Sha'ul apparently regards the Gemara's formulation of this rule to be at variance with the rule posited by the Tosefta holding the physician accountable at the hands of Heaven and, applying usual canons of halakhic decision-making, Divrei Sha'ul asserts that the rule formulated by the Gemara should be given preference over that recorded in the Tosefta.",
+ "As noted earlier, Arukh ha-Shulḥan, Yoreh De'ah 336:2, rules that a physician is culpable at the hands of Heaven only if he has been remiss in some manner in his treatment of the patient or if he has not been sufficiently diligent in determining the proper treatment. Although his view appears to reflect the position of Rabbenu Nissim, Arukh ha-Shulḥan surprisingly asserts that his view reflects his understanding of the Tosefta as well as of the rulings of Ramban and Shulḥan Arukh.",
+ "Despite the fact that Rabbenu Nissim is widely regarded as ruling that the physician is immune to suit for usual forms of medical malpractice, thoughtful application of his position to many common instances of malpractice results in an entirely different conclusion. Rabbenu Nissim's position exonerating a physician from malpractice liability is limited to genuine, albeit avoidable, errors of judgment as reflected in his appeal to the concept of \"his heart compelled him.\" A surgeon who removes the wrong organ because he failed to consult the patient's medical chart or who fails to read the label on a vial of medicine and administers a toxic drug has not committed an error of judgment compelled by his intellect. The same is true in the situation of a physician who simply fails to examine a patient properly because of the pressure of time or because of sheer laziness. Those situations represent examples of negligence for which immunity has not been conferred upon the physician. Moreover, according to Rabbenu Nissim, the physician is liable for such forms of negligent malpractice not only \"at the hands of Heaven\" but will be held liable by the bet din as well. Relief from liability by operation of rabbinic decree is recorded in the Tosefta solely in conjunction with the Tosefta's formulation of a biblical law doctrine of strict liability applicable to a physician. If the Tosefta's position is rejected in favor of the authoritative ruling of the Babylonian Talmud, there is no other evidence pointing to the existence of a rabbinic decree circumscribing the power of a bet din to order compensation.",
+ "2. Tashbaz",
+ "(a) Gerama vs. Garmi",
+ "R. Zalman Nechemiah Goldberg, Teḥumin, XIX (5759), 321, asserts that a physician who causes harm by offering poor advice, recommending a harmful procedure or prescribing a medication that is deleterious is liable not simply because of gerama but because his act is in the nature of garmi. In his initial discussion Rabbi Goldberg expresses some doubt with regard to whether, even according to the ruling of the Tosefta, a physician who incorrectly prescribes a medication, but does not personally administer the drug, bears liability even in the eyes of Heaven. He similarly expresses some doubt with regard to liability at the hands of Heaven with regard to a physician who orders an injection or counsels surgery but does not himself perform the procedure. Nevertheless, he concludes that, at the minimum, such acts constitute gerama, or an indirect cause, for which there is liability in the eyes of Heaven. Moreover, Rabbi Goldberg further declares the matter to be analogous to mesirah, i.e., \"informing\" an evildoer of the location of money or property and thereby enabling the malfeasor to seize the property. Such an act is categorized as garmi for which there is complete liability, i.e, for which there is liability not only in the eyes of Heaven but which is actionable before a bet din as well.",
+ "Jewish law recognizes two distinct forms of indirect causation: gerama and garmi. Damage caused by gerama results in liability only at the hands of Heaven; damage as a result of garmi is actionable before a bet din despite the absence of proximate cause. The precise nature of the distinction between the categories of gerama and garmi is the subject of considerable controversy among early-day authorities. In defining the concept of gerama in contradistinction to that of garmi, Tosafot, Bava Batra 26b, assert that, when the harm is a necessary and inescapable result of the tortfeasor's act, the tortfeasor is liable even if the resultant damage is caused by the tortfeasor only indirectly.",
+ "If the physician's referral to the surgeon or his order to the nurse is deemed to be in the nature of garmi, the physician would be fully liable but for the immunity conferred upon him by rabbinic edict. In comparing dispensing medical advice with \"informing\" and categorizing such conduct as garmi, Rabbi Goldberg's theory is based upon the presumption that the specialist's advice will certainly be heeded, i.e., the nurse will obey his orders and the patient will fill the prescription, and is further predicated upon the premise that even an indirect act that will inevitably result in pecuniary harm constitutes actionable garmi. There are, however, grounds to question whether erroneously prescribing a medication, ordering an injection or counseling surgery generate liability even at the hands of Heaven. In point of fact, other than perhaps in the case of an order issued to a nurse, it is far from certain that there is a necessary causal relationship between the practitioner's advice and the resultant harm since patients frequently seek second opinions or ignore medical advice.",
+ "Quite apart from the foregoing consideration, it would appear that the harm caused by a physician is not in the nature of garmi. The relevant paradigm is the case of a person who consults a money-changer (shulḥani) with regard to the value of a coin proffered to him. A proficient shulḥani, i.e., a master money-changer requiring no further training, who renders an erroneous opinion regarding the value of a coin is not liable for any loss incurred in acceptance of the coin since he has not been negligent in any way. There is a dispute between early-day authorities with regard to whether the money-changer incurs no liability even if the recipient of the coin expressly indicates that he is relying upon the money-changer's opinion. The consensus of opinion is that there is no obligation even under such circumstances. The same rule would apply to a proficient physician who makes a bona fide error in prescribing a medication or the like.",
+ "Most significantly, as explained by Rosh, Bava Kamma 9:13, liability by virtue of garmi is limited to situations in which the harm is immediately consequent upon performance of the culpable act. Since the money-changer's liability in terms of garmi is predicated upon the fact that the resultant damage is not only certain to occur but is also immediate, i.e., the proferred coin is immediately accepted in reliance upon the money-changer and the person who presents the coin has no further liability. Accordingly, no such liability would result from the writing of a prescription which must be taken to a pharmacy or from an order directed to a nurse in any situation in which the order is not carried out immediately.",
+ "Of course the issue is entirely theoretical since, even if the internist's referral to the surgeon or the physician's order to the nurse constitutes a form of garmi, any resulting liability is cancelled by virtue of the rabbinic decree promulgated mipnei tikkun ha-olam.",
+ "The liability of a nurse who administers an injection at the direction of a physician or of a surgeon who heeds the internist's diagnosis and performs an operation is a separate issue. It would certainly seem that according to the ruling of Shulḥan Arukh, the nurse and the surgeon are culpable in the eyes of Heaven. Thus it would follow that both the physician and the nurse, as well as the internist and the surgeon, are equally liable, at least in the eyes of Heaven. Rabbi Goldberg, however, seems to imply that liability cannot be shared jointly by the physician and nurse or by both the internist and the surgeon.",
+ "It should also be noted that, according to Rabbenu Nissim, it would appear that the nurse and the surgeon are not culpable since they are \"coerced\" by the advice they have received and upon which they have every right to rely. Thus, according to Rabbenu Nissim, under such circumstances the nurse or surgeon cannot be deemed liable. Rabbi Goldberg makes a different and more novel point in asserting that the actions of individuals such as the nurse or the surgeon who act upon the advice of a qualified professional are in the nature of an ones gamur for which, according to the opinion of Tosafot, there is no liability.",
+ "b) Tashbaz' Ruling",
+ "In his earlier-cited responsum, Tashbaz draws a distinction between physical intervention in the form of a surgical procedure or the like and the administration of medication, just as he drew such a distinction with regard to exile in instances of inadvertent manslaughter. In support of that distinction Tashbaz asserts that the term \"uman\" employed by the Tosefta denotes an artisan who employs a sharp instrument and hence all references in the Tosefta are to a surgeon (rofeh uman) who heals by means of \"work of the hand\" but that a physician who cures the sick by means of potions, laxatives or medicaments is not referred to by the appellation \"rofeh uman.\" Thus the doctrine of liability formulated by the Tosefta is limited solely to a surgeon whose intervention results in misadventure but does not apply to a physician since the latter's ministration \"does not enter into the realm of wounding that he be liable for damages. [Therefore] whether [he acts] unintentionally or intentionally and causes death or adds suffering to the sickness, [since] he intended to cure and did not intend to do harm, he is not liable even according to the laws of Heaven.\"",
+ "As explained earlier, the distinction drawn by Tashbaz reflects the halakhic notion of proximate cause. A tortfeasor is liable only for damages that are a direct result of his act; he is not liable for damages he causes only indirectly. Damage to a limb or organ arising from \"wounding,\" i.e., surgical incision or excision is clearly direct; harm caused by drugs or medications, even if administered directly by inoculation or the like, is regarded by Tashbaz as indirect. Even those authorities who regard the harm caused by injection or ingestion of a drug to be the direct effect of that cause must concede that merely prescribing, or even handing a patient, a drug can be no more than a gerama. That conclusion is evident from the statement of the Gemara, Bava Kamma 47b, describing the act of placing a poison before an animal as a mere gerama with the result that, although a person causing such harm is liable \"according to the laws of Heaven,\" a bet din cannot require compensation.",
+ "Tashbaz' distinction between a surgeon and a practitioner of internal medicine presents a number of difficulties. As noted earlier, the salient distinction between mere gerama and garmi is that in instances of garmi, despite the absence of proximate cause as defined by Halakhah, the resultant harm is certain to occur. Erroneous injection of a toxic substance, for example, should, in light of the previously cited comments of Tosafot, Bava Batra 26b, be treated no differently than an error committed in the course of surgery. Tashbaz may well have accepted the position of the early-day authorities who, because of a lack of proximate cause, regard even such harm to be in the category of unactionable gerama.",
+ "A close reading of Tasbaz' comment \"since [the physician] intended to heal and did not intend to harm,\" reveals that Tashbaz regards the physician to be free of liability for harm resulting from administration of medication only if the improper medication was administered in error. The implication of that statement is that if the physician intentionally administers a harmful medication he is indeed liable. However, as Rabbi Mordecai Elon, Torah she-be-al Peh, XVIII, 74, points out in questioning Tashbaz ́ comment, a tortfeasor is not liable even for intentional damage arising only indirectly from his act.",
+ "An even greater difficulty lies in the fact that a tortfeasor is liable in the eyes of Heaven even when the damages result from an act in the nature of gerama. Indeed, as recorded by Rema, Hoshen Mishpat 346:3, although the bet din is not empowered to order compensation directly and hence may not seize the tortfeasor's property, the bet din may nevertheless apply sanctions against the tortfeasor in the form of excommunication in order to prompt him to discharge the obligation that exists in the eyes of Heaven. Tashbaz does not at all explain why a physician should not be held accountable in the eyes of Heaven for malpractice in the form of gerama. This difficulty is noted by Minḥat Yizḥak, III, no. 104, sec. 1.",
+ "It seems to this writer that Tashbaz' position should be understood in light of the view expressed by Me'iri, Bava Kamma 56a. Me'iri maintains that liability \"at the hands of Heaven\" in instances of gerama is limited to situations in which the tortfeasor \"intends to do harm.\" Thus, the physician, even if he has erred in his ministrations, certainly did not intend to cause harm and hence he incurs no liability even \"at the hands of Heaven.\" Indeed, Tashbaz qualifies the scope of his ruling by describing the salutary intention of the physician to heal and adds the phrase \"and he did not intend to do harm.\" If Tashbaz maintains, as did Me'iri before him, that liability for gerama \"in the eyes of Heaven\" is limited to situations in which there is intention to do harm, the incorporation of that phrase seems to explain why the physician's act, unlike other forms of gerama, does not result in culpability in the eyes of Heaven.",
+ "R. Chaim Joseph David Azulai, Birkei Yosef, Yoreh De'ah 336:7, notes that, in affirming the physician's liability in the eyes of Heaven, both Ramban and Shulḥan Arukh are apparently in disagreement with Tashbaz, since they do not in any way qualify or limit their assertion that the physician is liable in the eyes of Heaven. In light of the foregoing discussion it is not difficult to explain why those authorities maintain that the physician is liable in the eyes of Heaven even in instances of gerama. Moreover, there are numerous authorities who maintain that harm caused by administration of medication must be regarded as direct rather than as indirect. Nevertheless, Shevet ha-Levi, IV, Yoreh De'ah, no. 151, comments that \"it is difficult\" to dispute Tashbaz' opinion or to rule contrary to the position of Tashbaz.",
+ "VI. Liability as a Bailee",
+ "R. Meir Auerbach, Imrei Binah, II, Dinei Dayyanim, no. 30, accepts Tashbaz' distinction insofar as tort liability is concerned in principle but does not agree that either the Tosefta or Ramban intended to draw such a distinction. Nevertheless, argues Imrei Binah, although in the absence of proximate cause there may be no tort liability, the physician is also a bailee and is liable for violation of his duties as a bailee. The rule with regard to an artisan is that an artisan who receives no compensation is a gratuitous bailee with regard to any property entrusted to him in the practice of his craft. However, as stated in the Mishnah, Bava Mezi'a 80b, if the artisan is compensated for his services, his status is that of a bailee for hire. A gratuitous bailee is liable only if he is negligent; a bailee for hire is liable for any loss except that which occurs through ones. Imrei Binah notes that physicians are generally compensated for their services. When compensated, writes Imrei Binah, a physician has the status of a bailee for hire. Thus, even if he has not been negligent, the physician should be liable for any harm that he causes, even if he causes such harm only indirectly, unless the harm is in the nature of ones. In exempting the physician from financial liability, the Sages, ipso facto, exempted him not only from tort liability but also from liability as a bailee. However, since that exemption is only from liability imposed by a bet din, the physician remains liable in the eyes of Heaven even for damage caused indirectly, albeit not as a tortfeasor, but as a bailee.",
+ "Imrei Binah's thesis presents a number of difficulties:",
+ "1) A bailee for hire, as Imrei Binah notes in a different context, becomes liable only upon receiving payment in advance or upon taking custody of the bailment by means of formal kinyan, e.g., by means of lifting or moving the object. A physician enters into no such kinyan and is generally not paid for his services before they are rendered. That objection may be resolved on the basis of a comment of Ramban cited by Nimukei Yosef, Bava Mezi'a 94b. Ramban states that a kinyan is necessary solely in order to demonstrate that the bailed object has been accepted as a bailment by the bailee and that he has assumed the obligations of a bailee. An artisan who acquires the status of a bailee does so by commencing his labor; for the artisan, commencement of his work is, in effect, commencement of the bailment. Accordingly, the physician, if he has the status of a bailee, acquires that status immediately upon commencement of medical ministration.",
+ "2) As recorded in Exodus 22:14, a bailee is not liable in situations in which the bailor accompanies his property at the inception of the bailment and is himself in a position to participate in the safeguarding of his property. Granted that the patient has the status of a bailed item, the patient, who is also the bailor, is physically present during treatment and indeed is present at the time that the harm occurs. That factor would serve to exonerate the physician from liability as a bailee.",
+ "3) The most complex problem is Imrei Binah's assumption that a human being can be bailed and that the obligation of a bailee can extend to a physician who assumes a duty of care vis-à-vis a patient. The general rule, recorded by Rambam, Hilkhot Sekhirut 2:1, is that a bailee incurs no disability with regard to real property, slaves or promissory notes. As will be shown, there are authorities who regard not only slaves but all human beings as not subject to bailment.",
+ "Although Ra'avad disagrees, Rambam, Hilkhot Sekhirut 2:3, maintains that a bailee, although exempt from liability in the event of damage resulting from other causes, nevertheless remains liable for negligence even with regard to real property, slaves and legal instruments. However, even according to Rambam, physicians might be held accountable according to the \"laws of Heaven\" only if the harm suffered by the patient results from the physician's negligence, whereas Ramban and Shulḥan Arukh apparently assign such liability even in the absence of negligence.",
+ "Moreover, the status of a human being as a bailed object for purposes of liability under the laws of bailment is far from clear. Among early-day authorities, Rashi, Kiddushin 7a, s.v. sheyesh lahem aḥarayut, states clearly that all human beings have the halakhic status of real property in this regard. However, Tosafot, ad. locum, s.v. im ken, followed by Ramban, Rashba and Ritva, ad locum, take issue with Rashi and declare that the principle is limited to Canaanite slaves.",
+ "Among latter-day authorities, R. Jonathan Eibeschutz, Urim ve-Tumim, Tumim 95:7, maintains that only slaves have the status of real property. Adopting a somewhat different position, Shulḥan Arukh, Hoshen Mishpat, 227:19, implies that a Hebrew slave and an employee contracted for his services also have that status but that a freeman does not. However, Shakh, Hoshen Mishpat 95:17, rules in accordance with the view of Rashi in extending that status to all human beings. Hence, whether or not a patient has the status of real property and, consequently, whether a patient can or cannot be the subject of a bailee's liability is a matter of considerable controversy among both early-day and latter-day authorities.",
+ "VI. A Concluding Comment",
+ "The physician, far more so than the practitioner of any other profession, must maintain constant and uninterrupted vigilance. Any momentary lapse on his part can lead to disastrous consequences. The physician's responsibilities are awesome and indeed they strain the limits of human capability. He or she cannot possibly maintain ongoing vigilance without a firm and dedicated resolve to do so and even then the physician must rely upon divine assistance. As expressed in the final section of the \"Daily Prayer of a Physician,\" attributed (probably spuriously) to Rambam, the physician must constantly pray:",
+ "Illumine my mind that it recognize what presents itself and that it may comprehend what is absent or hidden. Let it not fail to see what is visible but do not permit it to arrogate to itself the power to see what cannot be seen, for delicate and indefinite are the bounds of the great art of caring for the lives and health of Your creatures. Let me never be absent-minded. May no strange thoughts divert my attention at the bedside of the sick or disturb my mind in its silent labors, for great and sacred are the thoughtful deliberations required to preserve the lives and health of Your creatures."
+ ],
+ "Chapter 6 Medical Questions": [
+ "When afflictions are inflicted upon a person they are sworn…not to depart other than on a specific day, at a specific hour, through the intermediacy of a specific person and by means of a specific medicament.",
+ "AVODAH ZARAH 55a",
+ "Choosing Between Therapies: A Painful Dilemma",
+ "The widely-acclaimed Jerusalem Institute of Technology, of which the late R. Shlomoh Zalman Auerbach was a guiding spirit, has, for the past number of years, been compiling and publishing an annual volume of essays devoted to topical halakhic issues pertaining to technology and medicine. Those volumes, bearing the title Ateret Shlomoh, are published in memory of Rabbi Auerbach.",
+ "Volume IV (Adar 5759) of that series features an article by the highly regarded head of the Institute, R. Levi Yitzchak Halperin, devoted to a heart-wrenching medical problem. The hypothetical case involves a child afflicted with a malignant brain tumor that would almost certainly be fatal if left untreated. The tumor in question can be treated in one of two ways: 1) Chemotherapy can be used in treating this form of cancer and will be successful in approximately 60% of all cases. 2) The tumor can also be treated by whole-brain radiation which is effective in virtually all cases. The problem with the latter form of treatment is that, in a pediatric patient whose brain is not fully developed, there is a strong likelihood that the patient will suffer loss of neural function so severe that it will render the child a shoteh; i.e., the child will suffer extreme mental retardation. For purposes of analyzing the problem it must be assumed that radiation cannot be held in abeyance until it is determined whether or not chemotherapy will be successful.",
+ "Assuming that there is no cogent reason to fear that radiation poses a risk of foreshortening life, there is little question that, were radiation the sole therapy available, it would be obligatory to treat the patient in that manner even were resultant severe mental retardation to be a certainty. The issue in the case described is whether a statistically less efficacious therapy may be employed in the hope of not compromising quality of life.",
+ "This writer has consulted a number of medical specialists in the fields of pediatrics, oncology, neurology and radiology in an attempt to identify the type of tumor for which these possible modes of therapy are accompanied by the statistical risks described. That effort did not meet with success. It must be presumed that the discussion refers to a hypothetical situation. The fact that, as presented, the dilemma is not actual in no way diminishes the importance of the issue involved. The halakhic principles to be applied are applicable in many other situations as well.",
+ "Rabbi Halperin frames the question in terms of the consideration that it will become impossible for the mentally incompetent patient to perform mizvot. Framed in those terms, the issue is whether or not a person may accept a significant degree of risk, not in order to effect a cure, but to be assured of the ability to perform mizvot. The broader question is whether a person may accept a significant degree of risk in order to improve, or prevent a deterioration of, quality of life. The dilemma as posed by Rabbi Halperin is whether severe mental retardation must be accepted as the cost of improving chances of survival. The broader question is whether severe physical incapacity such as, for example, paralysis or blindness, must be accepted as the cost of improving chances of survival.",
+ "Rabbi Halperin tentatively suggests that there may be no obligation of rescue in situations in which the person whose life is saved will remain mentally incompetent. The Gemara, Sanhedrin 73a, bases the obligation to preserve the life of one's fellow upon the obligation to return lost property: Since a person is obligated to return lost property, a fortiori, he must be obligated to restore a person's life no less so than he is obligated to restore that person's property. However, as recorded in Shulḥan Arukh, Hoshen Mishpat 261:4, there is no obligation to restore the property of a person who willfully abandons or attempts to destroy his property. The fact that the Gemara derives the obligation of rescue from the obligation to restore lost property prompted Minḥat Hinnukh, Komez Minḥah, no. 237, and R. Yerucham Perla, in Mahari Perla, his commentary on R. Sa'adia Ga'on's Sefer ha-Mizvot, mizvot aseh, no. 28, s.v. u-milevad zeh, to reach the astonishing conclusion that there is no obligation to intervene in order to prevent a would-be suicide.",
+ "Surprisingly, but on the basis of the same line of reasoning, R. Shlomoh Kluger, Hokhmat Shlomoh, Hoshen Mishpat 426:1, asserts that there is no obligation to save one's fellow from imminent death if the act of rescue would involve humiliation or embarrassment to the rescuer. Hokhmat Shlomoh argues that the exemption from taking custody of and returning lost property in such circumstances extends to preservation of life.",
+ "Rabbi Halperin applies a similar parallelism in the medical context. The Gemara, Bava Mezi'a 30b, establishes that a person must trouble himself to return another person's property only in situations in which he would devote similar time and expend similar effort in preserving his own property. Apparently assuming that the same exemption exists in a situation in which the owner of the property would not deem it worth his while to preserve his own property, argues Rabbi Halperin, there is no obligation to provide life-prolonging treatment for a person who does not wish to live. Such an individual would not seek to preserve his own life; hence, argues Rabbi Halperin, according to the earlier-cited authorities, it is not incumbent upon others to do so on his behalf.",
+ "That argument fails for a number of reasons. A person has no obligation to prevent his property from becoming destroyed. The prohibition of bal tashḥit, i.e., wasteful or wanton destruction of property, prohibits only wanton acts of destruction but does not mandate conservation of resources. Hence, a person may legitimately decline to preserve property facing imminent destruction, particularly when intervention would involve expenditure of time and effort not commensurate with the value of the endangered property. Not so with regard to life. According to Rabbenu Nissim, a person is under obligation to preserve his own life even if he prefers death because failure to do so is tantamount to suicide. It then follows that, since a person is obligated to preserve his own life under any and all circumstances, others are similarly required to engage in acts of rescue on his behalf regardless of his desires.",
+ "Moreover, as Rabbi Halperin himself concedes, the positions of Minḥat Hinnukh, Mahari Perla and Hokhmat Shlomoh are rejected by the consensus of rabbinic authorities. The Gemara, Sanhedrin 73a, posits a further obligation to preserve the life of one's fellow based upon the verse \"Nor shall you stand idly by the blood of your fellow\" (Leviticus 19:16). That negative commandment seems to be quite independent of the obligation regarding restoration of property—and the a fortiori obligation to rescue life—and, accordingly, does not admit of any of the exclusions attendant upon the obligation to restore lost property.",
+ "Even if the earlier-cited authorities are correct in assuming that the prohibition \"Nor shall you stand idly by the blood of your fellow\" is limited to situations in which intervention is mandated by \"and you shall restore it to him\" (Deuteronomy 22:2) and does not establish an entirely independent obligation, the conclusion reached by those authorities is not compelled. A person's life, unlike his property, does not belong to himself but to the Creator. Accordingly, argues R. Yo'av Yehoshu'a Weingarten of Kintzk (Konskie), in a responsum included in R. Issachar Berish Graubert's Teshuvot Divrei Yissakhar, no. 168, the obligation to preserve life is not a duty owed to the potential victim but to the Deity and that duty is shared equally by the rescuer and the person rescued. In a responsum of which the earlier-cited authorities were apparently unaware, R. Meir of Rothenberg, Teshuvot Maharam ben Barukh (Prague, 5368), no. 39, rules unequivocally that an individual must be rescued from potential death even if he protests and vehemently demands that there be no intervention. A similar rebuttal is offered by R. Meir Dan Plocki, Klei Hemdah, Parashat Ki Teze, sec. 6.",
+ "By far the sharpest language employed in rejecting those views is that of R. Moshe Feinstein, Iggerot Mosheh, Yoreh De'ah, II, no. 174, anaf 3:",
+ "… with the forgiveness of these illustrious scholars, it is clear that it is absolute error, may their Master forgive them! Heaven forfend that the words of Hokhmat Shlomoh be uttered, for if the honor of Heaven is set aside … for the sake of saving the life of even the most inferior person … certainly the honor of a mortal, even of the greatest of the great, must be set aside.",
+ "Iggerot Mosheh argues that although preservation of personal dignity may be a consideration sufficient to negate the obligation to restore lost property, it cannot be invoked to excuse oneself from the obligation of rescuing life: God, in permitting violation of His commandments for purposes of pikuaḥ nefesh has waived His own honor; a fortiori, the dignity of a mortal cannot represent a value that might serve to abrogate the duty of rescue.",
+ "Iggerot Mosheh further argues that one must conduct oneself vis-à-vis another person's lost property as one would conduct oneself vis-à-vis one's own and hence one must act the same way with regard to preservation of the life of another. Iggerot Mosheh argues that since a person would seek to save his own life under any and all circumstances he cannot plead humiliation as an exception from the obligation to save the life of another. Iggerot Mosheh adds that even if the individual in question",
+ "is a person to whom dignity is preferable to life, behold it is forbidden to die because of [avoidance of] demeaned dignity. Therefore, that the person would be [willing to be] wicked is meaningless in terms of exempting him from rescuing others because of his wickedness. Besides, no person has credibility to declare that his dignity is preferable to him over his life.",
+ "Rabbi Halperin advances another consideration relevant solely to the particular situation he addresses, viz., potential mental incompetence. As a rationale for the principle that Sabbath restrictions are set aside for preservation of life, the Gemara, Shabbat 151b and Yoma 85b, advances the argument: \"Better that they desecrate one Sabbath on his behalf so that he may observe many Sabbaths.\" Rabbenu Nissim, Yoma 82a, offers that rationale, inter alia, in ruling that Sabbath restrictions must be set aside in order to preserve the life of a fetus even in the earliest stages of development. Rabbenu Nissim clearly maintains that this consideration is both normative and independent of other considerations in terms of setting aside halakhic restrictions.",
+ "Rashba, cited by Bet Yosef, Oraḥ Hayyim 306, apparently disagrees. Rashba addressed a question involving a person whose daughter was abducted on Shabbat and faced forced apostasy. The interlocutor sought advice with regard to the propriety of engaging in acts ordinarily forbidden on Shabbat in an attempt to rescue his daughter. Rashba replied that the matter required further study but that he was inclined to the negative. Since an apostate will surely desecrate the Sabbath, acts of rescue could readily be justified on the basis of the rationale \"Better that they desecrate one Sabbath in order to observe many Sabbaths,\" were that consideration to be considered normative. Rashba's failure to issue a positive ruling indicates that he did not regard that rationale to be applicable.",
+ "Nevertheless, both Taz, Oraḥ Hayyim 306:5, and Magen Avraham, Oraḥ Hayyim 306:29, understood Rema, Hilkhot Shabbat 328:10, as ruling that Sabbath prohibitions may be ignored in order to save a Jew from apostasy for precisely that reason, i.e., so that he may continue \"to observe many Sabbaths.\" If so, argues Rabbi Halperin, it would follow that Sabbath restrictions may also be ignored in order to cure a person of lunacy or mental incompetence \"so that he may observe many Sabbaths.\" Actually, that point was made much earlier by R. Iser Yehudah Unterman, Shevet me-Yehudah, I (Jerusalem, 5715), 49 and 64. Rabbi Unterman, however, declares that the Gemara posits that rationale only in situations in which the undertaking is assured of success so that the observance of \"many Sabbaths\" is a certainty.",
+ "Moreover, the argument is inherently flawed. The notion that a single Sabbath may be set aside in order to gain the observance of many Sabbaths reflects the notion that a certain degree of risk-taking vis-à-vis Sabbath observance, and even compromise thereof, is warranted in order to gain maximum Sabbath observance. It does not at all follow that even ḥayyei sha'ah, i.e., ephemeral longevity, may be ventured solely for the sake of maximizing Sabbath observance.",
+ "Rabbi Halperin also notes that mental incompetence is regarded by Halakhah as itself constituting a life-threatening condition. A person afflicted in that manner poses a danger to himself as well as to others and certainly lacks the mental capacity to avoid situations of danger. In support of that contention, Rabbi Halperin cites a statement of Bet Yosef, Yoreh De'ah 228, in the name of Rashba. That responsum is published in Teshuvot ha-Rashba ha-Meyuḥasot le-ha-Ramban, no. 281.",
+ "The earliest reference to mental disease sufficiently grave to imperil the life of the afflicted occurs in Issur ve-Hetter he-Arukh, attributed to Rabbenu Yonah of Gerondi. Issur ve-Hetter he-Arukh cites a specific query addressed to an earlier authority, Maharam, concerning an epileptic who sought advice concerning the permissibility of partaking of a forbidden food reported to possess medicinal properties capable of curing his illness. The decision, in which Ramban acquiesces, is in the affirmative, provided that the efficacy of the remedy has been established. That decision is predicated upon a determination that epilepsy constitutes a danger to life since, at times, an epileptic may endanger himself by \"falling into fire or water.\" R. Israel Meir Mizrachi, Teshuvot Pri ha-Arez, III, Yoreh De'ah (Jerusalem, 5665), no. 21, relies upon the decision of Ramban in ruling that insanity also constitutes a danger to life and accordingly permits an abortion when it is feared that the mother may otherwise become mentally deranged. Rashba, cited by Bet Yosef, Yoreh De'ah 228, also regards mental incompetence as life-threatening in nature. This position is also adopted by R. Mordecai Winkler, Teshuvot Levushei Mordekhai, Hoshen Mishpat, no. 39, who is cited by R. Waldenberg, Ẓiz Eli'ezer, IX, no. 51, sha'ar 3, chap. 3, sec. 9. Other authorities, including Teshuvot Admat Kodesh, I, Yoreh De'ah, no. 6; Teshuvot Pri ha-Arez, II, Yoreh De'ah, no. 2; Birkei Yosef, Shiyurei Berakhah, Yoreh De'ah 155; Teshuvot Nezer Mata'ai, I, no. 8; Iggerot Mosheh, Even ha-Ezer, I, no. 67; Ẓiz Eli'ezer, IV, no. 13, sec. 3; and R. Yosef Shalom Eliashiv, as cited by R. Yitzchak Zilberstein, Assia, no. 42-43 (Nissan 5746), pp. 26f., also maintain that mental incompetence constitutes a threat to life.",
+ "Blood-Sugar Tests",
+ "1. The Shabbat Problem",
+ "Drawing blood on Shabbat is ordinarily forbidden. According to Rashi, Shabbat 107a, and most other early-day authorities, the prohibition is classified as a form of \"slaughter,\" one of the thirty-nine paradigmatic categories of labor prohibited on the Sabbath. Scripture declares, \"for the blood is the life (nefesh)\" (Deuteronomy 12:23), and hence removal of any quantity of blood is, halakhically speaking, tantamount to extinguishing a measure of \"life.\" According to Rambam, Hilkhot Shabbat 8:7, drawing blood is categorized as a derivative form of \"threshing,\" another of the prohibited categories of labor. Threshing involves extracting a kernel from its husk. Removal of blood, according to Rambam, is similar in that it involves expressing blood from the tissues in which it is imbedded.",
+ "Accordingly, drawing blood on Shabbat is sanctioned only if necessary for the treatment of someone suffering, or possibly suffering, from a life-threatening illness. Untreated or insufficiently treated diabetes is certainly an illness of that nature. Crucial in the treatment of diabetics is regulation of blood sugar levels. Since a diabetic's body either does not produce insulin, as in Type I diabetes, or cannot process the insulin that is produced, as is the case in Type II diabetes, the diabetic's blood sugar levels are likely to fluctuate much more widely than those of a healthy person. Current medical practice calls for taking blood samples periodically during the course of the day, particularly before meals, in order to titrate the amount of insulin or other medication required to achieve optimum blood sugar levels. Patients are trained to draw small quantities of blood and to perform a simple blood analysis themselves.",
+ "Diabetics whose insulin is insufficient for their caloric intake are at risk for developing life-threatening effects of hyperglycemia, including diabetic coma. Those whose dose of insulin is too high for the quantity of calories they have consumed are in danger of potentially life-threatening hypoglycemia that can result in insulin shock. Indeed, the halakhic discussions of glucose testing on Shabbat focus upon the immediate dangers. However, from the halakhic perspective, the danger must be defined far more broadly.",
+ "It is certainly true that lack of precision in determining dosages, particularly over a short period of time, poses no imminent danger to the patient. Deleterious effects of minor increases of blood sugar are unlikely to become manifest until after the passage of time. However, the nature of diabetes is such that, barring a supervening illness or accident, the diabetic's longevity anticipation will be shortened as a result of complications of that disease. The effects of higher than normal blood sugar are cumulative. Medical science has not established a threshold of safety for fluctuation of blood sugar or a time span within which such fluctuation is innocuous.",
+ "Accordingly, it seems to this writer that any act designed to achieve an optimal blood sugar level for even a minimal period of time is in the category of possible pikuaḥ nefesh and hence is not only permitted but is mandatory on Shabbat as well as on weekdays.",
+ "In practical terms, the result is that a diabetic is required to perform the necessary blood test as often as recommended by his or her physician. Of course, a rabbinic authority knowledgeable in the technical aspects of the testing procedure should be consulted for advice with regard to minimizing the nature of the Sabbath infractions involved. The sole remaining halakhic issue is whether, in drawing blood, the patient may extract only the minimum quantity of blood necessary for analysis or whether the amount of blood removed in the performance of a single act is irrelevant. There are multiple self-use kits available for this purpose. Some draw more blood than others. Assuming, as is likely the case, that all are equally efficacious, is the patient obligated to use a device, or method, that results in removal of the least possible quantity of blood? That issue is addressed in a number of contributions to Assia, no. 73-74, Nisan 5764 (vol. 19, no. 1-2).",
+ "The most commonly used method of obtaining a blood sample is by means of a finger prick. The blood that is released is placed on a testing strip. The strip is then placed into a processing device that measures and announces the blood sugar level.",
+ "Since receiving F.D.A. approval late in the year 2000, a device has been available that accomplishes lancing, blood collection and glucose testing with a single press of a button. The device employs a vacuum mechanism that holds the skin in place while an integrated apparatus lances the skin and automatically transfers the blood to a bio-sensor strip that tests the blood and records the result. This device has the advantage of causing significantly less pain than traditional finger-stick testing and also requires only a minute quantity of blood. A survey of various self-testing devices of this material presently marketed in the United States indicates that the amount of blood drawn varies between .6 microliters and four microliters. Standard type lances are much cheaper but draw more blood than necessary.",
+ "In his article in Assia, Rabbi Menasheh Klein astutely draws attention to the fact that an issue exists with regard to the proper procedure to be followed on weekdays as well as on Shabbat. Drawing blood constitutes \"wounding\" and is forbidden other than for therapeutic purposes. The Gemara, Sanhedrin 84b, indicates that, even in a medical context, \"wounding\" beyond that which is therapeutically necessary constitutes a transgression. Accordingly, Rabbi Klein asserts that drawing more blood than is necessary for diagnostic testing is forbidden.",
+ "R. Meir Simchah ha-Kohen of Dvinsk, Or Sameaḥ, Hilkhot Shabbat 18:1, establishes a fundamental point with regard to Sabbath regulations. The general rule is that even when an otherwise forbidden act is sanctioned, e.g., for purposes of saving a life, it is forbidden to add to the quantity of a substance that is the subject of that act even if no additional physical act is required. Thus, on the Sabbath, if a limited quantity of soup is required for a patient, it is not permitted to add additional water to the pot even before the pot is placed on the stove. This is so despite the fact that only a single act of \"cooking\" is required regardless of whether the pot contains a large or small quantity of water. The concern is that, if adding food before the pot is placed on the fire is permitted, the cook may err in adding additional food in the pot after the pot has been placed on the fire. Placing a second quantity of food in a pot already on the fire constitutes an additional discrete act and, since not necessary for the purpose of preserving life, constitutes a biblical infraction. Placing more food in the pot than is required for the patient constitutes ribbuy be-shi'urin i.e., increasing the quantity of the substance upon which the forbidden act is performed.",
+ "Among the various categories of \"labor\" prohibited on Shabbat, many forms of \"labor\" result in culpability at the hands of the bet din only if the prohibited act is performed upon a minimum quantity of a substance. Accordingly, although cooking even a minimum quantity of a foodstuff is proscribed, there is no culpability unless a minimum quantity equal in weight to a grogeret, or dried fig, is cooked. According to Tosafot, Menaḥot 64a, s.v. shetayim, and Rashba, Hullin 15b, such acts are prohibited only by virtue of rabbinic decree. According to Rabbenu Nissim, Beizah 17a, the prohibition against ribbuy be-shi'urin is biblical in nature.",
+ "With regard to some forbidden forms of activity no minimum quantity or size is prescribed. Accordingly, \"slaughter\" or killing a live creature is cause for punishment by the bet din even if the creature is a mere insect. Or Sameaḥ asserts that there is no concept of ribbuy be-shi'urin, i.e., forbidden enhancement of quantity, with regard to forbidden forms of labor that require no minimum quantity or size for culpability. Accordingly, he asserts that when an animal must be slaughtered on behalf of a patient on Shabbat and two animals are available, one large and one small, there is no reason to slaughter the smaller, leaner animal rather than the larger.",
+ "Or Sameaḥ's position is in contradiction to the earlier published view of R. Joseph Babad, Minḥat Hinnukh, no. 32, Mosekh ha-Shabbat 39:2. When two animals are available, Minḥat Hinnukh regards the slaughter of an animal larger than necessary for the needs of the patient to be rabbinically forbidden even according to Rashba. A similar rule exists with regard to cutting the branch of a tree bearing fruit when fruit is necessary for a patient on Shabbat. Plucking fruit, cutting a branch or otherwise severing vegetative matter from the ground to which it is attached constitutes a category of labor that is forbidden on Shabbat. In a situation in which a patient is in need of no more than two fruits and two branches are available, one bearing two fruits and the second three fruits, only the branch bearing two fruits may be severed despite the fact that the physical \"labor\" involved in severing the branch bearing a larger number of fruits is absolutely identical to the \"labor\" involved in severing the branch bearing a smaller quantity of fruit. The reason, asserts Kesef Mishneh, Hilkhot Shabbat 2:8, is that ribbuy be-shi'iurin is forbidden. In effect, each fruit is discrete and each is the subject of the prohibition against plucking; hence more fruit than needed may not be \"plucked\" even by means of severing the branch through a single act.",
+ "R. Zevi Pesach Frank, Teshuvot Har Ẓevi, Oraḥ Hayyim, no. 177, cites R. Meir Auerbach, Imrei Binah, Dinei Shabbat, no. 17, in distinguishing between severing a branch bearing two fruits rather than a branch bearing three fruits and slaughtering a heavier rather than a lighter animal and asserts that the rule applicable to the branches does not apply to the slaughter of an animal. Since an animal is an integral whole, argues Har Ẓevi, slaughter is always in the nature of a single act performed upon a single animal having the effect of extinguishing a single life regardless of the size of the animal. Consequently, Har Ẓevi permits the slaughter of the larger animal. Har Ẓevi similarly suggests that lighting a lamp containing more fuel than is necessary to satisfy the needs of the patient may also be permissible. The situation involving the lamp is more complex and involves additional considerations that are not relevant to this discussion.",
+ "Applying that controversy to the issue of drawing a greater than necessary quantity of blood on Shabbat, Rabbi Israel Rosen, writing in the same issue of Assia, concludes that, although according to Minḥat Hinnukh the permissibility of the procedure is questionable, nevertheless, according to Or Sameaḥ and Har Ẓevi, there is no reason to employ a procedure that would express a smaller quantity of blood. Rabbi Klein, however, dismisses that conclusion. Rabbi Klein understands Or Sameaḥ's thesis as applicable only to matters such as slaughter in which there is only a single life to be taken regardless of the size of the animal. \"Wounding,\" he argues, even though it is a sub-category of \"slaughter,\" can be performed repeatedly upon the same animal and hence, he argues, each drop of blood expressed represents a discrete transgression.",
+ "Rabbi Klein's argument seems to be flawed in the sense that it must have been impliedly rejected by both Or Sameaḥ and Har Ẓevi. Every act of slaughter also involves blood-letting. The blood of a large animal is certainly more copious than that of a small animal. If so, even though each animal, large or small, has but a single life, slaughter of the larger animal should be forbidden because, ipso facto, it also involves \"wounding\" of a quantitatively greater nature, i.e., the extraction of a larger quantity of blood, each drop of which constitutes a separate infraction. In failing to reach that conclusion Or Sameaḥ and Har Ẓevi must have reasoned that since \"wounding\" is a sub-category of \"slaughter\" there can be no ribbuy be-shi'urin with regard to \"wounding\" just as there is no ribbuy be-shi'urin with regard to \"slaughter.\"",
+ "Putting that matter aside, Or Sameaḥ's thesis is advanced only with regard to forms of labor that demand no minimum quantity for purposes of liability. If, as Rambam maintains, \"wounding\" is prohibited as a form of \"threshing,\" causing blood to flow in the course of slaughter should also be a form of \"threshing.\" Since culpability for \"threshing\" requires a minimum quantity of a grogeret it should follow that ribbuy be-shi'urin with regard to \"threshing\" is prohibited with the result that slaughter of a large animal on behalf of a sick person should not be warranted when slaughter of a smaller animal would suffice.",
+ "Rabbi Rosen does, however, raise an additional point that is both empirical and intriguing. The amount of blood expressed in utilization of any of the available methods is much lower than the minimum quantity of grogeret. Even assuming that an act involving a ḥazi shi'ur, i.e., a quantity insufficient to generate culpability, is biblically proscribed, the issue that seems heretofore not to have been addressed is whether there is a prohibition of ribbuy be-shi'urin when, in aggregate, the total quantity will remain below the shi'ur, or threshold, that gives rise to culpability.",
+ "The issue raised by Rabbi Rosen is germane only with regard to the Sabbath prohibition associated with drawing blood. It is not at all relevant with regard to the issue of \"wounding\" since punishment for violation of that prohibition is not contingent upon causing a fixed minimum amount of bleeding. In a brief communication, published in the same issue of Assia, R. Joshua Neuwirth, author of Shemirat Shabbat ke-Hilkhatah, dismisses the question of ribbuy be-shi'urin. He reasons that in applying a lance, the patient is, in effect, performing an act comparable to opening a faucet. In the latter case, other than the first gush of water, the resultant flow is automatic and only an indirect result of the act of turning on the spigot. The same is the case, asserts Rabbi Neuwirth, with regard to the flow of blood following puncture of the skin: pricking the skin allows pent up blood to flow of its own accord. Rabbi Rosen responds that, in point of fact, blood (often) does not flow of its own but requires application of pressure to express the required quantity of blood; hence, the issue of ribbuy be-shi'urin is germane.",
+ "Interesting, but apparently ignored, is a point that arises from Rabbi Neuwirth's analogy to opening a faucet. In that case, the initial gush of water as a result of built-up pressure is deemed a human act for all purposes of Halakhah. The ongoing flow is regarded to be in the nature of gerama, i.e., an act caused only indirectly. In the absence of proximate cause, such indirect acts are generally proscribed by rabbinic decree in all situations in which a direct act is biblically forbidden. The issue not addressed is whether there is a prohibition of ribbuy be-shi'urin with regard to acts in the nature of gerama.",
+ "2. Unnecessary \"Wounding\"",
+ "As previously noted, Rabbi Klein is adamant in his view that drawing more blood than necessary for diagnostic purposes is forbidden and accordingly draws attention to the common medical practice of filling relatively large vials with blood despite the fact that only a fraction of the quantity drawn is actually needed for blood tests. The practice, he emphasizes, is forbidden on weekdays as well as on Shabbat. As noted earlier, Rabbi Neuwirth clearly disagrees because, in his opinion, the additional blood flows of its own accord. Although, again as noted, that is frequently not the case with the minute quantity of capillary blood obtained by means of a needle prick or by lancing, it is certainly true with regard to venous blood drawn for more extensive diagnostic purposes. Again, as stated earlier, it seems to this writer that causing flow of blood in that manner is in the nature of gerama that is rabbinically forbidden. This writer is unaware of any source that specifically addresses the issue of whether there is a prohibition of ribbuy be-shi'urin with regard to an act in the nature of a gerama. Even if ribbuy be-shi'urin represented a rabbinic rather than a biblical prohibition, such an act should nevertheless be prohibited even when performed indirectly. However, it would seem to be the case that it is permissible to direct a non-Jew to perform such an act. An act that would be permissible but for the cumulative effect of three separate rabbinic prohibitions remains permissible. In this case, the act would be forbidden only because of a conjunction of three distinct rabbinic prohibitions: 1) gerama is rabbinically forbidden; 2) ribbuy beshi'urin is rabbinically forbidden; and 3) instructing a non-Jew to perform a proscribed act is rabbinically forbidden. Hence, since rabbinic legislation does not forbid acts involving a configuration of three rabbinic decrees, the act is not forbidden.",
+ "However, the prohibition against drawing excess blood on a weekday is not as clear-cut as it might seem. R. Moshe Feinstein, Iggerot Mosheh, Hoshen Mishpat, I, no. 103 and Oraḥ Hayyim, IV, no. 102, permits donations of blood to a blood bank on various grounds. Inter alia, he argues, the Sages regarded blood-letting not only as a therapy for various maladies but also regarded it as having prophylactic value.",
+ "Accordingly, Iggerot Mosheh concludes that blood donations are permitted because of their medical benefit to the donor. According to Iggerot Mosheh, filling a larger than necessary vial of blood when drawing blood for diagnostic purposes should be regarded simply as a form of bloodletting permitted by the Sages because of its potential health benefit. Rabbi Klein, consistent with his view regarding drawing excess blood for diagnostic purposes, regards donation to blood banks as prohibited although, presumably, he, too, would permit such donations in a situation of a ḥoleh le-faneinu, i.e., an imminent danger as that concept is expansively defined by Halakhah.",
+ "Permissibility of drawing more blood than necessary would thus be subject to the dispute between Rabbi Klein and Iggerot Mosheh. Assuming that drawing more blood than is necessary constitutes illicit wounding, there is certainly cause for a Jewish physician, nurse or phlebotomist to be concerned with drawing blood in excess of the necessary quantity. However, it seems to this writer, that a Jewish patient need not protest if a non-Jewish health-care practitioner does so. The excess blood is neither drawn at the behest of the patient nor for his benefit. The benefit, if any, is convenience for the laboratory and for the person drawing the blood who wishes to avoid difficulties with his or her employer. Although the patient must cooperate and provide assistance in placement of the needle, there is no mesaye'ah or \"assisting\" in drawing the quantity that is in excess of medical need. At that point, the patient merely holds his or her hand rigid and provides no further active assistance.",
+ "Use of Viagra on Shabbat",
+ "The Sages prohibited many acts on Shabbat despite the fact that, in and of themselves, those acts involve no aspect of forbidden labor and are in no way inimical to the Sabbath spirit. They feared that engaging in such acts might, through excitement, confusion, overpowering desire etc., lead a person to desecrate the Sabbath, whether inadvertentently or knowingly, by performing a biblically proscribed act of labor. Thus, for example, the Sages severely limited the type and quantity of possessions that may be rescued from a burning building on Shabbat by removing them into a courtyard. Their concern was that, once rescue of property is countenanced, the prospect of loss of a significant portion of a person's fortune might engender emotional confusion that would prompt him to transport valuables into a public thoroughfare as well.",
+ "The prohibition against taking medication or engaging in therapeutic activity on Shabbat or Yom Tov is among rabbinic prohibitions of that nature. According to Rif, Shabbat 53b, and Rosh, Shabbat 5:3, the Sages feared that a person in pain or discomfort, if permitted to take medicine, might be led to pulverize the components used in compounding such medications. Hayyei Adam 69:1 explains that the prohibition is rooted in a concern that, if any type of medical treatment is permitted, an observer might infer that Sabbath restrictions, including the biblical prohibition involved in pulverizing medicaments, are suspended for all medical purposes even in the absence of danger to life.",
+ "Since even biblical restrictions are suspended in situations involving danger to life, no restriction against availing oneself of medication on Shabbat exists with regard to a patient afflicted with a potentially life-threatening illness or even of a malady that might cause permanent impairment. Nor did the Sages see fit to restrict medication or treatment of an even temporarily bedridden or incapacitated person. Essentially, the restriction is limited to individuals suffering mild discomfort or pain that is not incapacitating in nature.",
+ "Contemporary reality makes it difficult to appreciate the concern that prompted a rabbinic enactment limiting therapeutic measures on Shabbat. Although, on occasion, a pill may be crushed and mixed with applesauce or the like, in our day, virtually no consumer of pharmaceuticals has ever compounded a medication and consequently there is scant reason to fear that a patient may be prompted to crush medicinal ingredients. Even pharmacists are no longer apothecaries. Pharmacists dispense medications that have been produced in bulk quantities by pharmaceutical companies. As a result, neither the patient, the care-giver nor the health-care professional in personal contact with the patient has occasion inappropriately to crush or pulverize medicines on Shabbat. The concern prompting promulgation of this rabbinic decree has largely lapsed. Nevertheless, the decree remains in force and is fully binding until rescinded by a court \"larger in number and wisdom\" than the court that enacted the decree originally.",
+ "Sildendfil, marketed by Pfizer Pharmaceuticals under the name Viagra, is the first Food and Drug Administration approved oral pill for treatment of impotence. Use of Viagra on Shabbat is addressed by Rabbi Joel Catane in the earlier cited issue of Assia, Nisan 5764. Rabbi Catane points to a series of considerations that serve to render use of erectile dysfunction remedies permissible on Shabbat. Those considerations merit careful examination.",
+ "Viagra does not cause penile erections directly. Rather, Viagra acts by enhancing the effect of nitric oxide that is normally released in response to sexual stimulation. Viagra removes impediments to the smooth muscle relaxant effects of nitric oxide which, in turn, allows increased blood flow into the areas necessary to cause and sustain an erection. Sildenafil is also marketed under the brand name Revatio. Tadalafil, marketed as Cialis, has much the same effect and is accompanied by the same side effects. An erection is reversed when a chemical known as phosphodiesterase type 5 (PDE5) breaks down the chemicals that caused the muscles to relax in order to accommodate an increased flow of blood. Cialis operates by flushing PDE5 and hence prevents contraction of the muscle tissue with the result that blood remains in the tissue for a longer period of time and prolongs the erection. A third FDA approved drug, Levitra, is similar to Cialis.",
+ "On first analysis, it might appear that erectile dysfunction remedies such as Viagra, Cialis and Levitra should not be categorized as medications within the ambit of the edict prohibiting use of medications on Shabbat by virtue of the fact that the person taking the medication suffers from no illness. The problem confronting a person seeking to avail himself of one of these pharmaceutical products is that he either cannot achieve an erection or cannot sustain an erection long enough to engage in intercourse. Yet, as codified by Mishnah Berurah 328:120, medications are forbidden, not only when they are designed to alleviate an underlying condition, but also when they are designed le-ḥazek ha-mezeg, i.e., to \"strengthen,\" enhance or promote ongoing \"pharmacological balance\" or good health. Of course, even ordinary food is designed to achieve that goal. The rule of thumb is that whatever constitutes a ma'akhal bari, or \"food of a healthy person,\" i.e., a substance that would be consumed by a normal person for its nutritional value in the absence of a particular health concern, is permitted whereas a substance that would not ordinarily be consumed by a healthy person is forbidden. A food that would be eaten by a healthy person may be eaten by a sickly individual even though the latter's purpose in consuming such food is therapeutic in nature. Understood in this manner, use of erectile dysfunction remedies is certainly problematic: Young, virile men have no need for a pharmaceutical stimulant. The medication is designed to increase blood flow to the penis, a goal which, even if it is not to be characterized as the cure of a malady, is certainly in the nature of a measure intended le-ḥazek ha-mezeg, i.e., to restore physical prowess and performance. Thus, even if Viagra or the like is not a \"medicine,\" that serves to cure a physiological disorder, it is nevertheless not a ma'akhal bari and hence may well be prohibited on Shabbat.",
+ "There may, however, be other grounds that would serve to exclude use of erectile dysfunction medications from the ambit of the prohibition against use of medicine on Shabbat. There are a host of authorities who rule that a medicine that must be taken over a period of several days may be utilized on Shabbat as well. The earliest authority to permit such medications is R. Shlomoh Kluger, Sefer ha-Hayyim 328:1, who states that this is a commonly known leniency (margela be-puma de-insha). R. Joshua Neuwirth cites Rambam's rulings, Hilkhot Shabbat 21:22 and 22:7, to the effect that one who drinks a potion known as haltit for medicinal purposes several days before Shabbat may continue to do so on Shabbat. Indeed, as reported by R. Abraham ha-Levi Hurwitz, Orḥot Rabbenu ha-Kehillot Ya'akov, I, no. 214, pp.155f., Hazon Ish goes beyond the position of other authorities in ruling that, in such circumstances, even the initial dose may be taken on Shabbat. In Hilkhot Shabbat 22:7 Rambam adds the qualifying phrase \"so that he not become ill if he interrupts drinking.\" Apparently, the reason for this exclusion from the prohibition is that the Sages sought only to forbid use of medication by a person suffering mild pain or discomfort but did not seek to include in their edict those who are ill, even if not severely so. Requirement of medication over a period of days was probably assessed as being an indication of illness rather than mere discomfort (meiḥush).",
+ "Ingestion of erectile dysfunction medication is not necessary on a daily or periodic basis. Nevertheless, Rabbi Catane suggests that the need for such medication in conjunction with every occasion of coitus is similarly an indication of sickness rather than mere discomfort. That argument is not persuasive for two reasons: 1) Rambam's phraseology in Hilkhot Shabbat 22:7 seems to indicate that the crucial factor is that interruption of the medication on Shabbat would frustrate the benefit of weekday administration of the medicine by causing the earlier illness to express itself anew. That explication of this rule reflects the incident reported by the Gemara, Shabbat 140a, which serves at the basis of the ruling. As recorded in that discussion, R. Hiyya ben Avin was permitted to continue taking medication on Shabbat with the explanation that failure on his part to do so would make him ill. Erectile dysfunction medication does not \"cure\" an underlying malady and hence its interruption does not negate the benefit of earlier doses. 2) The leniency formulated by Sefer ha-Hayyim does not seem to apply to a person who suffers from (mild) headaches intermittently. Typically, such a person takes an aspirin when he experiences a headache but does not do so prophylactically or to prevent a recurrence. Such an individual would not be permitted to take aspirin on Shabbat because each headache is a new episode. Viagra and other erectile dysfunction medications are similar in that they are used to cause or to sustain an erection whenever such physical prowess is desired. That effect is certainly in the nature of le-ḥazek ha-mezeg, i.e., achievement of more optimal physical function. A patient experiencing sexual dysfunction does not become sexually rejuvenated as a result of taking the medication over a period of time, which might render taking the medication on Shabbat permissible. Rather, the medication is used on an ad hoc basis to facilitate intercourse just as aspirin is used to alleviate an intermittent headache.",
+ "Rabbi Catane finds other grounds to permit Viagra and the like in the rulings of Ẓiz Eli'ezer, XIV, no. 50, sec. 5, regarding tranquilizers and Teshuvot Be'er Mosheh, I, no. 33, sec. 19, and VI, no 39, with regard to stimulants used to prevent drowsiness. In both cases there is neither an underlying physical malady nor is the drug designed to \"strengthen the constitution.\" As recorded by Shulḥan Arukh, Oraḥ Hayyim 328:37, a person suffering from no illness may avail himself on Shabbat of a substance not normally consumed by a healthy person. Rabbi Catane argues that Viagra should similarly be permitted since it does not function as a cure or as a means of \"strengthening the constitution.\" However, the comparison does not seem apt since the purpose of an erectile dysfunction remedy is clearly to \"strengthen the constitution,\" i.e., to sustain penile erection in a person otherwise incapable of doing so. It is of interest to note that Rabbi Catane cites a personal communication to him from Rabbi Neuwirth in which the latter apparently takes issue with the permissive rulings of Ẓiz Eli'ezer and Be'er Mosheh regarding tranquilizers and stimulants. It should also be noted that in sec. 13 of the summary appended to Ẓiz Eli'ezer, VIII, no. 15, Rabbi Waldenberg without explanation forbids use of stimulants to prevent sleep.",
+ "A much stronger argument cited by Rabbi Catane was earlier advanced by Dr. Abraham S. Abraham with regard to penile injections on Shabbat prior to intercourse. Although painful and cumbersome, the purpose of such injections is the same as that of Viagra, viz., to cause the blood vessels to become engorged in order to make erection possible. Dr. Abraham's argument permitting penile injections is based upon another exclusion from the prohibition against medical treatment on Shabbat. Even in situations in which there is no threat to life, treatment is permissible if failure to treat will result in loss or dysfunction of an organ or limb (sakkanat ever). Kezot ha-Hoshen, Badei ha-Shulḥan 138:18, and Shemirat Shabbat ke-Hilkhatah 33:1, in a gloss appended to sec. 5, rule that this exclusion applies even if foregoing treatment will result in only partial dysfunction of the organ, e.g., failure to set a fracture will not render the person lame but will result in a limp that will compromise function of the foot. Thus, Rabbi Neuwirth is cited in Nishmat Avraham, IV, introduction to Oraḥ Hayyim 328, sec. 4, as permitting fertility treatments on Shabbat on the grounds that inability to conceive represents dysfunction of the reproductive organs and hence constitutes sakkanat ever.",
+ "However, at least in cases in which the patient is not completely impotent, the application of this thesis to penile injections or to ingestion of Viagra and the like, is not as strong as it might appear. The terminology employed by the codifiers of this rule is \"sakkanat ever\" or danger to an organ. The concern reflected in this exclusion seems to be the threat of permanent loss or dysfunction resulting from non-treatment. Thus loss of a foot, lameness and inability to bear children each represents an irreversible loss. Reproductive organs are designed for procreation. Although fertility treatment does not restore those organs to ongoing normalcy, such treatment serves to bring the raison d'être of those organs to actualization by making pregnancy possible.",
+ "However, there is no evidence indicating that transient dysfunction constitutes sakkanat ever or that enhancement of the function of a limb or organ is permitted. Thus, for example, medical treatment for a sprain that results only in temporary lameness does not seem to be encompassed within this category. Similarly, it is not at all apparent that a person rendered lame by a sprain but who, hypothetically, can walk for a brief period of time after being injected with steroids, might avail himself of such treatment on Shabbat. No \"danger\" to the limb is forestalled by such treatment. Temporary dysfunction of an organ certainly does not constitute sakkanat ever; hence, restoration of such function does not seem to constitute a remedy for sakkanat ever. A medication that would entirely reverse impotence would certainly be permissible on Shabbat. However, Viagra does not do so; it only makes sustained erection possible for a limited period of time. Nor does failure to use Viagra for any period of time compromise its future efficacy as a treatment for impotence.",
+ "The strongest argument advanced by Rabbi Catane in support of the permissibility of use of Viagra and similar medications on Shabbat is based upon a responsum of R. Yitzchak Ya'akov Weisz, Teshuvot Minḥat Yizḥak, I, no. 108. Minḥat Yizḥak permitted a husband to take medication before and after intercourse \"so that he not be harmed\" by intercourse. Presumably, in the case brought to his attention, nitroglycerin was prescribed for a patient suffering from angina in order to dilate the cardiac vessels so that they might accommodate without danger the more rapid blood flow that results from exertion during intercourse.",
+ "Minḥat Yizḥak's ruling is based on the principle that a non-Jew may be instructed to perform a rabbinically forbidden act on Shabbat if such is necessary in order to fulfill a mizvah. As recorded in Shulḥan Arukh, Oraḥ Hayyim 140:11, intercourse is not permitted in an illuminated room. On Shabbat, when a lamp cannot be extinguished, Hayyei Adam, Hilkhot Shabbat 29:4, rules that it is also forbidden to interpose a \"wall\" between the lamp and the couple in order to block the light. This is forbidden even though construction of a \"temporary wall\" is only rabbinically proscribed. Nevertheless, a non-Jew may be requested to put a temporary wall in place on the basis of the principle that it is permitted to instruct a non-Jew to perform a rabbinically proscribed act in order to facilitate fulfillment of a mizvah, in this case, fulfillment of conjugal obligations. Minḥat Yizḥak cites Teshuvot Radvaz, III, no. 640, in demonstrating that availing oneself of medication on Shabbat is an infraction of lesser severity than commanding a non-Jew to perform a rabbinically proscribed act of labor. Hence, he argues, if ordering a non-Jew to perform such an act in order to fulfill a mizvah is permitted, a fortiori, taking medication must also be permissible for the purpose of fulfilling a mizvah. Minḥat Yizḥak's ruling is endorsed by Ẓiz Eli'ezer, VIII, no. 15, chap. 15, sec. 14, and is cited by Nishmat Avraham, I, Oraḥ Hayyim 321:11, note 3. A similar ruling based on the same source was issued by Be'er Mosheh, I, no. 33, sec. 9 and reiterated in volume VI, no. 39 of the same work.",
+ "However, Rabbi Neuwirth, Shemirat Shabbat ke-Hilkhatah, 2nd edition (Jerusalem, 5739), I, 33:20, note 81, apparently regards any act performed by a person himself, including taking medications on Shabbat, as a more severe infraction than the infraction involved in directing a non-Jew to perform a forbidden act. Nevertheless, on the basis of the clear rulings of Minḥat Yizḥak, Ẓiz Eli'ezer and Be'er Mosheh, and in light of the somewhat tentative nature of Rabbi Neuwirth's comment, the weight of opinion supports the conclusion that use of erectile dysfunction medications on Shabbat is permitted."
+ ],
+ "Chapter 7 New York City Water": [
+ "\"You shall not make yourselves detestable with any swarming thing that swarms and you shall not defile yourselves with them…\" (Leviticus 11:43). [The Torah] included in this negative commandment things that swarm on the ground, winged swarming things and things that swarm in the water. What are things that swarm in the water? Those small creatures such as worms and leeches that are in the water and exceedingly large creatures that are animals of the sea.",
+ "RAMBAM, HILKHOT MA'AKHALOT ASSUROT 2:12",
+ "I. The Problem",
+ "The saga of what one magazine has termed the \"Jewish Watergate\" began in July, 2003. For a number of years an Israeli firm had been marketing Romaine lettuce and other produce certified as free of insect infestation. In the course of demonstrating proper methods of vegetable inspection an instructor at the Mashgiach Training Institute of Yeshiva Birkas Reuven discovered insects in the water used for washing lettuce. Samples were subsequently sent to the firm marketing the produce. In due course a response was received indicating that the insect that had been identified was known to spawn in water rather than in vegetables. Hence, the problem was in the water used for cleansing the produce rather than in the vegetables themselves! That finding was rapidly confirmed by examining tap water in the locale in which the lettuce had been rinsed.",
+ "The insects that were detected are tiny aquatic creatures, crustaceans called copepods which are millimeter-long zooplankton common both in the ocean and in ground water. These creatures have a thick body, long antennae and numerous legs. Since the water supply is treated with chlorine very few, if any, of the insects found in the water have been found to be alive. The color of these insects is whitish grey which renders them translucent and accounts for why they are not easily spotted. They are, however, visible to the naked eye without magnification.",
+ "New York City's Department of Environmental Protection has long been aware of the existence of these copepods. A manual published by that agency specifically states that \"several aquatic species have been recognized as nuisance organisms in potable water supplies. Although these organisms are not considered public health risks, they are often the source of consumer complaints.\" The gauge of most filters routinely affixed to kitchen faucets is probably too large to prevent the escape of such tiny organisms. However, filters with impressively low gauges, some as low as .05 microns, are readily available. Such low-gauge filters effectively eliminate the targeted organisms.",
+ "A number of prominent halakhic authorities have affixed their signatures to statements varying in terms of stridency but unequivocal in admonishing the public to filter water prior to use. The most significant of those is a ruling authored by R. David Feinstein bearing the endorsements of R. Joseph Shalom Eliashiv and R. Chaim Pinchas Scheinberg. That statement containing a succinct explanation of the grounds for the prohibition was reproduced and widely disseminated. Prominent among the signators of other statements are R. Feivel Cohen, author of Badei ha-Shulḥan, and R. Yechezkel Roth, formerly the dayyan of the Satmar community in Borough Park. A comprehensive article authored by R. Chaim Oberlander discussing all factors involved in resolution of this issue, including a number of possible leniencies, is featured in vol. IX, no. 4 (Tammuz 5764) of Or Yisra'el, published in Monsey, N.Y. Additional articles by R. Shlomoh Gross, dayyan of the Belz community in Borough Park, and R. Yitzchak Bistritsky, a dayyan of the Satmar community in Borough Park, containing valuable information also appear in the same issue of Or Yisra'el.",
+ "The general rule with regard to examination for the presence of insects is that examination is required in all instances in which infestation is common but that examination is not required in situations in which there are no grounds to suspect that infestation has occurred. Thus, for example, Hokhmat Adam 38:13, rules that, in Germany and France, all cherries, save for one species known as \"sour cherries,\" require examination but reports that in Danzig insect infestation of cherries is not common and hence examination is not required unless the presence of worms is indicated by pock marks on the skin. Plums, he reports, must be presumed to be infested in all countries with the exception of Lithuania where the plums are puny and insect-free. Certainly, the situation has changed significantly since the time of Hokhmat Adam, undoubtedly as a result of widespread spraying. Whether or not particular species of fruits and vegetables require examination depends upon the species and the locale.",
+ "In some areas of Brooklyn, particularly in Borough Park and Flatbush, as well as in Washington Heights, copepods have been found in the drinking water. Where infestation has been demonstrated, filtration of the water is required. Where filtration is required, it is necessary not only for drinking-water but also water used in cooking, rinsing food, gargling and brushing teeth. However, even within those neighborhoods, in many locations no insects have been detected despite repeated examination. The Environmental Protection Agency is reported to have determined that infestation does not occur in the reservoir but at some point close to the point of discovery. There is, however, strong scientific evidence suggesting that the species of copepods found in New York water originate in the reservoirs rather than in localized water mains. Nevertheless, in some buildings, copepods may fall to the bottom of the water tower or, for some unexplained reason, their movement may be impeded in some manner by the plumbing system. If so, it seems to this writer that, if upon multiple examinations it is evident that the water in any particular building is insect-free, further examination is unnecessary. Examination is best carried out against a black background or, less optimally, by placing a cloth at the tap in order to catch the copepods as they emerge. Care should be taken that the tap be only partially opened in order to prevent dismemberment of the insects by the pressure of the water running through the cloth.",
+ "II. Minuscule Insects",
+ "The almost reflexive reaction of many people to reports of infestation of New York water by copepods was that the issue is hardly novel. Probably every person who has had the benefit of a freshman biology course has had the experience of placing a droplet of water on a slide and examining it under a microscope. The experience of viewing countless numbers of microorganisms is both thrilling and disconcerting: Thrilling because the microscope becomes a window opening upon the hidden mysteries of divine creation through which a tiny cross-section of the myriad complexities of the natural order is revealed; disconcerting, at least to a Jew, because, mindful as he is of the biblical admonition \"of all that creeps in the water and of all the living creatures that creep in the waters … you shall not eat of their flesh\" (Leviticus 11:10-11), he becomes jarringly aware that with every sip of water he imbibes copious quantities of such creeping things.",
+ "In a nutshell, the problem and its resolution requires a determination of whether, in seeking to abide by the commandments of the Torah, a Jew must be concerned with subvisual phenomena or only with that which is detectable upon gross observation. The question is by no means limited to establishment of the parameters of the dietary code. A quite similar issue arises, inter alia, with regard to the validity of a Torah scroll. A severed or disconnected letter disqualifies the entire scroll. But even with, relatively speaking, moderate magnification, what appear to be vast chasms of open space can be seen in the structure of the letters of every Torah scroll. The discharge of even a minute quantity of menstrual blood renders a woman a niddah. What is the status of a woman if the discharge is too slight to be seen by the naked eye but can be readily perceived upon magnification? More recently, the selfsame issue has arisen with regard to the status of a fertilized ovum that is as yet invisible to the naked eye. The resolution of that question may impact upon the propriety of utilizing the \"morning-after pill\" for termination of pregnancy and upon the permissibility of destroying a fertilized ovum at the very earliest stages of cell division.",
+ "The earliest discussion of halakhic implications of subvisual phenomena is that of R. Israel Lipschutz in his commentary on the Mishnah, Tiferet Yisra'el, Avodah Zarah, Bo'az 2:3. Tiferet Yisra'el reports that some fifty or sixty years earlier a prominent rabbinic authority ruled that a fish, theretofore presumed to be non-kosher because it lacked scales, was indeed kosher. That authority issued his ruling subsequent to examining the skin of the fish with a \"microscope\" (sic: probably a magnifying glass) and discovering scales. In that instance, magnification was utilized to permit that which otherwise would be regarded as forbidden rather than to forbid the otherwise permissible. Tiferet Yisra'el peremptorily dismisses that view on the grounds that the Gemara, Niddah 51b, categorizes the scales that are the hallmark of kosher species as being in the nature of a \"garment\" (levush). Tiferet Yisra'el asserts that each of the minuscule scales of the species in question is \"no more than a tiny dot which the eye cannot perceive.\" Accordingly, he concludes that such scales \"certainly cannot be categorized as a garment\" and hence the species must be regarded as non-kosher. Tiferet Yisra'el bases his position entirely upon the idiosyncratic halakhic definition of a \"scale\" rather than upon a global assertion that Halakhah takes no cognizance of subclinical phenomena. ",
+ "Later, in discussing a somewhat different matter, R. Shlomoh Kluger, Teshuvot Tuv Ta'am va-Da'at, Mahadura Tinyana, kuntres aḥaron, no. 53, comments upon the method commonly employed in examining the lungs of an animal subsequent to slaughter. Whenever an adhesion is found, a possibility exists that it occurred because of a perforation in the underlying pulmonary tissue. Therefore, the adhesion is peeled away and the lung is blown up in order to examine for the presence of a lesion. The practice, as described by R. Shlomoh Kluger, involves placing water or saliva upon the exposed site of the adhesion and then looking for bubbling caused by escaping air which, in turn, is evidence of the presence of a minuscule hole. That examination is not unlike the procedure commonly employed by an automobile repairman seeking to locate the site of a puncture that has caused a flat tire. Tuv Ta'am va-Da'at dismisses as absurd his own suggestion that a magnifying glass might be used to search for a perforation visually and to substitute that procedure for the usual mode of examination. In context, Tuv Ta'am va-Da'at dismisses magnification as an unacceptable means of examination. More to the point is the fact that magnification of a sufficiently high power will always disclose the presence of holes with the result that, if cognizance must be taken of that phenomenon, no animal is kosher!",
+ "Elsewhere, in his Hokhmat Shlomoh, Yoreh De'ah 84:1, R. Shlomoh Kluger remarks that with proper magnification minuscule creatures can always be found in water, but \"the Torah was not given to ministering angels\" with the result that creatures that cannot be perceived visually are not prohibited.",
+ "The classic and most frequently quoted source with regard to the issue of microscopic organisms is the comment of R. Yechiel Michel Epstein, Arukh ha-Shulḥan, Yoreh De'ah 84:36. Arukh ha-Shulḥan writes:",
+ "I have heard that every drop of water, and particularly of rainwater, is full of minuscule creatures that the eye cannot see. In my youth, I heard from a person who had been in distant places and saw in water, by means of a lens of exceedingly great magnification, [i.e., that magnifies] tens of thousands of times, many species of creatures.",
+ "In light of this, how may we drink water … ? Indeed, the truth is that the Torah did not forbid that which the eye cannot perceive, for the Torah was not given to angels. For, if not so, many scientists have written that the entire atmosphere is also full of extremely minuscule creatures and that when a person opens his mouth he swallows a number of them … . Even if this is so, since the eye cannot perceive them, it is of no significance. However, that which the eye can see, even [if only] against the sun and even if it is the tiniest of the tiny, is a veritable insect.",
+ "Without explicitly citing the earlier comments of Tiferet Yisra'el, Arukh ha-Shulḥan declares the converse to be true as well, i.e., when visual perception is required to satisfy any halakhic requirement, artificial magnification is of no avail. Thus, Arukh ha-Shulḥan, Yoreh De'ah 83:15, writes:",
+ "And know that it is clear that, with regard to a matter that requires visual perception, it is of no avail if one sees by means of a lens that magnifies visual perception; rather, one must see by means of the eye itself. Such is the case with regard to matters in the whole Torah in its entirety with regard to that which requires visual perception.",
+ "As noted earlier, the requirement that scales must be visually perceivable for an aquatic species to be regarded as kosher is, according to Tiferet Yisra'el, quite independent of the general question of the status of subvisual phenomena. However, the general rule formulated by Arukh ha-Shulḥan seems to be a matter of dispute. The rule with regard to Torah scrolls, tefillin and mezuzot is that no letter may extend to the edge of the parchment; some blank space must remain as a margin on each side of the letter. Is the letter validly written if examination with a magnifying glass reveals that there is indeed empty space in the margin even though the blank space is not manifestly evident to the naked eye? R. Moshe Sternbuch, Mo'adim u-Zemanim, II, no. 124, cites the late Tchebiner Rav, R. Dov Berish Weidenfeld, as ruling that a scroll written in such a manner is invalid. That ruling is entirely consistent with the position of Arukh ha-Shulḥan. However, Mo'adim u-Zemanim also cites R. Ze'ev Mintzberg as disputing that view in ruling that it is sufficient that a blank margin be discernible upon magnification. Rabbi Mintzberg's view is recorded in his responsa collection, She'erit Yisra'el, nos. 11 and 12.",
+ "Somewhat surprisingly, Mo'adim u-Zemanim proceeds to discuss the status of an etrog in which a very small piece of the flesh is missing and to relate that issue to this dispute. As recorded in Shulḥan Arukh, Oraḥ Hayyim 648:2, at least optimally, the etrog should be whole. What is the status of an etrog in which the hole can be seen only with a magnifying glass? Mo'adim u-Zemanim asserts that the status of such an etrog is contingent upon resolution of the controversy between the Tchebiner Rav and Rabbi Mintzberg.",
+ "To the mind of this writer, that conclusion is unwarranted. The position of Arukh ha-Shulḥan and the Tchebiner Rav is readily grasped: The requirements of the Torah are to be understood as determinable under ordinary circumstances. The \"creeping\" organisms interdicted by Scripture are defined as creatures that would have been perceived as \"creeping\" at the time of revelation at Mount Sinai. \"Ein ha-Kadosh barukh Hu ba be-teruniyah im beriyotav—The Holy One, blessed be He, does not act despotically with His creatures.\" (Avodah Zarah 3a), i.e., at Sinai, the Deity did not establish requirements that they could not possibly meet. The Torah was given to humans, not to angels (Berakhot 25b; Yoma 30a; Kiddushin 54a; and Me'ilah 14b). Hence, perforce, the connotation of a \"creeping\" organism, for example, must be limited to creatures that could have been identified at that time by use of conventional modes of observation. Conversely, according to Arukh ha-Shulḥan, if God stipulated blank margins for Torah scrolls, tefillin and mezuzot, the term \"mukaf gevil\" (surrounded by a margin) must have been understood as a visually perceivable margin and hence that must have been—and must remain—the meaning of the term.",
+ "Rabbi Mintzberg's position is equally comprehensible. As has been noted earlier, the Gemara declares that \"the Torah was not given to ministering angels.\" Hence microscopic organisms could not have been banned at Mount Sinai. The Torah also requires that scrolls have margins. Of course, at Sinai, a scribe upon completing the writing of such a scroll could not have been certain that a margin existed unless he could have seen the empty space with his naked eye. For much the same reason, a person intent upon fulfilling the mizvah of eating mazah, which requires him to eat a quantity of mazah equal to a ke-zayit (an olive) would perforce have to eat a bit more than a ke-zayit since absolutely precise measurements are beyond human capacity. That, however, does not imply that the Torah insists that sufficient space be left so that it may be perceived by the naked eye any more so than that the Torah insists that a person eat a bit more than a ke-zayit of mazah. That which is added for reasons of doubt is not intrinsic to the mizvah itself. A person informed by the Holy Spirit that he has consumed a ke-zayit of mazah need eat no more. Similarly, according to Rabbi Mintzberg, a scribe informed by the Holy Spirit—or by a magnifying glass—that a margin does exist may declare the scroll to be valid.",
+ "The question of the suitability of an etrog in which a tiny portion has been eroded involves an entirely different issue. Resolution of that question depends upon the definition of the term \"missing\" (ḥaser). Presumably, all would agree that, if it is only angels who realize that a tiny fragment is missing, the etrog may be used without hesitation for purposes of fulfilling the mizvah. Hence all would agree that \"ḥaser\" must be defined as that which normal human beings, using methods of examination naturally available to them, would perceive as being ḥaser. If so, a microscopic erosion, by virtue of halakhic definition, does not render the etrog a ḥaser.",
+ "The principle enunciated by Arukh ha-Shulḥan is readily traceable to the Mishnah, Nega'im 4:4. The various forms of zara'at described in Leviticus 13 cause defilement only if the manifestation covers the area of a gris, usually assumed to be approximately the size of a dime. The Mishnah, Nega'im 4:4, states that an afflicted area the size of a gris causes defilement even if a hair is encompassed in that area. The hair certainly occupies space and hence the tiny opening through which the hair invades the zara'at and displaces the skin cannot itself constitute a site manifesting a symptom of zara'at. Nevertheless, the Mishnah declares, \"We are not concerned that the space of the black hair may have diminished the baheret (one of the forms of zara'at) for [the hair] is devoid of substance.\" Rambam, in his Commentary on the Mishnah, ad locum, interprets that comment as meaning that \"the size of the hole from which the hair emerges is extremely minuscule and lacks perceivable [emphasis added] size that would diminish the size [of the baheret].\"",
+ "However, the ruling of the Mishnah with regard to zara'at does not really serve to establish a precedent for Arukh ha-Shulḥan's thesis. Determining the criteria of what constitutes zara'at is distinguishable from other aspects of Jewish law in that Scripture explicitly provides that the determination is to be made \"entirely in accordance with the sight of the eyes of the priest\" (Leviticus13:12). The determination of impurity by reason of zara'at is thus made expressly contingent upon subjective appearance \"in the eyes of the priest\" rather than upon objective reality.",
+ "The basic principle of Jewish law formulated by Arukh ha-Shulḥan has a parallel in the Roman law maxim \"De minimis non curat lex—The law takes no cognizance of a trifle.\" However, the trifle that Jewish law declines to recognize is considerably more trivial than that to which Roman law refers. In fact, it is so trivial as to be, literally, non-perceivable.",
+ "One caveat must be added. Assuming that terms employed by Scripture in describing physical entities must be understood as entities perceivable at the time of Revelation, it does not follow that any particular present-day subclinical phenomenon was also subclinical at the time of the giving of the Torah at Mount Sinai. In a note published in R. Yechiel Michel Tucatzinsky's Bein ha-Shemashot (Jerusalem, 5689), p. 153, and frequently cited in rabbinic discussions of this topic, R. Iser Zalman Meltzer suggests that human eyesight was far more keen in ancient times than at present. The Mishnah, Bekhorot 54b, states that even in open places animals may be regarded as members of a single group for purposes of tithing so long as the animals are all present within a limited, specified area. As Rashi explains the Mishnah, that area is defined as the area in which the animals can pasture under the supervision of a single shepherd. That, in turn, is defined by the Mishnah as an area having a radius of sixteen mil. The Gemara explains that the key to establishing the determination of that radius is the ability of a single shepherd to see, and hence to safeguard, the entire group of animals. As expressed by the Gemara, ad locum: \"The Sages determined that the eye of a shepherd can master sixteen mil.\" There are various conflicting opinions among rabbinic decisors with regard to the definition of a mil. According to the most widely accepted views, calculations of the distance of a mil vary from between 960 meters (3,149.60 feet) to approximately 1,160 meters (3,805.77 feet). Rabbi Meltzer observes that it is quite impossible for a person to see objects at such a great distance. Accordingly, he concludes that, over the ages, our sense of sight has become dulled. Rabbi Meltzer attributes that phenomenon to widespread reliance upon artificial illumination which, he opines, has caused natural eyesight partially to atrophy. In support of that opinion he comments, \"We know that, even today, the Bedouin who do not use our lamps can see very far.\"",
+ "Thus it is certainly arguable that the organisms denoted by Leviticus 11:10-11 are those that were perceivable at the time the commandment was announced and that those organisms remain forbidden even if, in our age, they are no longer visible to the naked eye. However, this is not to say that microscopic organisms are forbidden. Even the shepherd of antiquity did not enjoy omnivision; after all, he could see only a distance of sixteen mil. Since that time there has been, at worst, only limited optical degeneration. Perhaps in antiquity the average man possessing eyesight of the quality common among his peers could see with his naked eye even that which is visible to us only upon two-three- or even ten-power magnification. Consequently, organisms that are but marginally subvisual may well be forbidden but those that can be seen only with a microscope rather than with a magnifying glass could not conceivably be within the ambit of the prohibition.",
+ "Arukh ha-Shulḥan's position with regard to minute organisms is amplified by R. Samuel ha-Levi Woszner, Teshuvot Shevet ha-Levi, VII, no. 122. Shevet ha-Levi addresses the problem of insects that are visible to the naked eye but which, upon gross examination, can be seen only as specks or black dots and hence are not recognizable as insects. Since they cannot be recognized as insects by the naked eye due to lack of perceivable limbs, antennae or other discernible body parts, Shevet ha-Levi regards them as permissible.",
+ "An obvious objection to that view is the ruling of Rema, Yoreh De'ah 84:6, with regard to fruit in which a \"black dot\" is evident. Rema rules that it is forbidden to eat such fruit without first removing the infested portion because the black dot \"is the place from which the worm begins to develop … and is forbidden just as the worm itself [is forbidden]. The \"black dot\" is certainly not perceivable as an organism but it is nevertheless prohibited by Rema. Shevet ha-Levi counters that objection by asserting that the organisms or larvae described by Rema will eventually develop into macroorganisms and for that reason they are forbidden even in earlier stages of development. Thus the \"black dots\" described by Rema are distinguishable from microorganisms that will never become visibly discernible. Basing himself upon Teshuvot ha-Rashba, no. 275, Shevet ha-Levi also acknowledges that, if the organism can be perceived, or will at any time be perceived, as propelling itself, such locomotion, in and of itself, serves to establish its identity as a forbidden creature.",
+ "However, R. Moshe Viya, Bedikat ha-Mazon ke-Halakhah, I (Jerusalem, 5758) 2:4, reports that the late R. Shlomoh Zalman Auerbach ruled that organisms that are visible but which are not perceivable as \"creeping things\" are forbidden. A somewhat different version of Rabbi Auerbach's position is reported by R. Joshua Neuwirth, Shemirat Shabbat ke-Hilkhatah, I, 2nd edition (Jerusalem, 5739) 3:37, note 105. Rabbi Neuwirth relates that Rabbi Auerbach originally opined that an organism that can never be perceived as living or mobile cannot be regarded as a \"creeping thing that creeps upon the earth\" (Leviticus 11:41). However, Rabbi Auerbach later recounted that he heard from persons close to Hazon Ish that the latter considered such organisms to be forbidden. In point of fact, Hazon Ish, Yoreh De'ah 14:6, s.v. ve-shi'ur, writes explicitly: \"[Even] if the eye does not recognize it because of its small size, if it is yet whole it does not become nullified by virtue of rabbinic decree because of the law of biryah.\" Hazon Ish clearly maintains that even organisms that cannot be identified as insects are forbidden. R. Joseph Shalom Eliashiv is also quoted in Bedikat ha-Mazon ke-Halakhah, I, 2:4, note 4, as ruling that all such creatures are forbidden even if they cannot immediately be identified as insects.",
+ "In point of fact this issue has no bearing upon the problem of New York City water for the simple reason that many of the copepods in question are clearly recognizable as insects.",
+ "III. Permitted Insects",
+ "A. Insects Spawned in Stagnant Water",
+ "As formulated in Leviticus 11:10, the prohibition against forbidden aquatic creatures reads: \"And all that do not have fins and scales in the seas and in the rivers, of all that creep in the waters and of all living creatures that are in the water, they are detestable unto you.\" The Gemara, Hullin 66b, declares that the requirement that aquatic creatures have fins and scales as a condition of dietary acceptability is limited to those that spawn in \"the seas and in the rivers\" and hence creatures that spawn in stagnant pits or utensils are permissible. The Gemara, Hullin 67a, qualifies that exclusion in indicating that creatures that spawn in utensils are permissible only so long as they remain in their aquatic element. Upon emerging, or upon being removed, from water they acquire the forbidden status of \"creeping things that creep upon the earth\" (Leviticus 11:29) and remain prohibited even if they return to the water from which they emerged. Thus, insects that spawn in stagnant water collected in stationary cisterns or the like are not forbidden unless they become separated from the water that is their natural habitat.",
+ "Although the status of reservoirs themselves in this regard is a matter of some controversy, bugs found in water that is collected in a pit or the like, but in situations in which the water originates in a river or stream, cannot ipso facto be presumed to be permissible. The status of such organisms is perforce the subject of doubt: Did the insects originate in the free-flowing source and hence they are forbidden or did they spawn in stagnant water subsequent to entering the reservoir? Darkei Teshuvah 84:5 rules that such insects are forbidden because of their doubtful status.",
+ "Moreover, as recorded by Rambam, Hilkhot Ma'akhalot Assurot 2:18, and Shulḥan Arukh, Yoreh De'ah 84:2, this exclusion from the prohibition is limited to creatures that spawn in stationary bodies of water. According to those authorities, creatures that spawn in water that flows from a stationary collection of water are forbidden because all flowing water is encompassed within the category of \"rivers.\"",
+ "To be sure, as indicated by Darkei Teshuvah 84:30, bugs found in water flowing from a cistern through a pipe are indeed permissible since such insects have not emerged from a utensil. Accordingly, insects that spawn in the pipes that form the distribution system would appear to be permissible. However, such insects may be permissible only if the pipe is not attached to the ground. Darkei Teshuvah, loc. cit., suggests that a pipe attached to the ground loses its status as a utensil and becomes an integral part of the earth to which it is attached or in which it is implanted. Accordingly, insects that spawn in such pipes, or in an aqueduct, are in the category, not of \"creeping things that creep in the water,\" but of the entirely distinct category of \"creeping things that creep on the ground.\" Creatures that do not spawn in flowing water or in utensils are creatures that \"creep on the ground\" and hence are forbidden despite the fact that they spawn in a liquid medium.",
+ "Furthermore, and perhaps most significantly, upon recording the permissibility of ingesting insects found in stagnant water, Shulḥan Arukh, Yoreh De'ah 84:1, carefully adds, \"therefore one may bend and drink from them.\" Rema appends the explicit comment that it is forbidden to draw water in a utensil in order to drink the water drawn in such manner. As explained by Shakh and Taz, ad locum, when a utensil is used for drawing water there is a distinct possibility that the insect may attach itself to the wall of the utensil. Insects that spawn in utensils are permissible only so long as they do not emerge from their aquatic habitat. Upon attaching themselves to the wall of the utensil (for some authorities only if the insect precedes the flow of water but for other authorities even if the insect rises from the water in the utensil to the dry portion of the utensil) the insect becomes prohibited and remains so even upon its return to an aquatic environment.",
+ "Kisei Eliyahu, Yoreh De'ah, 84:1, cited by Darkei Teshuvah 84:9, suggests that, in actuality, the problem associated with water drawn in a utensil is a matter of practical concern only with regard to relatively large insects. Kisei Eliyahu suggests that extremely small, barely perceivable insects, once they have emerged from the water, are not capable of returning. Nevertheless Kisei Eliyahu urges that one not drink water infested even with minuscule organisms without prior straining.",
+ "In contradistinction to the understanding of Shakh and Taz, Darkei Teshuvah 84:13 cites Pri Tohar 84:1 who, basing himself upon Issur ve-Hetter, rules that it is permissible only to bend and drink water but that otherwise the insects, once they are removed from their original habitat even if only by means of a utensil, are forbidden. Thus, according to Darkei Teshuvah, if insects are present in the water, they become forbidden immediately upon being drawn into a glass or a pot.",
+ "B. Insects Produced by Spontaneous Generation",
+ "Hazon Ish, Yoreh De'ah 14:10, advances a further consideration that would serve effectively to prohibit imbibing any organism that spawns in reservoirs. Hazon Ish assumes that the exclusion of organisms spawned in stagnant water from the prohibition concerning \"creeping things\" is based upon the rationale that they are not the product of sexual reproduction but are generated by the \"hylic power\" of the water. Otherwise, contends Hazon Ish, they should be forbidden, if not by virtue of their own identity, then by virtue of the fact that they are the \"yozei\" or emission of a non-kosher entity and the applicable principle is that any food product that \"emerges\" from a non-kosher organism is, ipso facto, non-kosher regardless of its own characteristics. By way of comparison, Hazon Ish points out that a fish hatched in stagnant water from an egg laid by a non-kosher mother is certainly non-kosher.",
+ "Hazon Ish's position has implications beyond his actual statement. Hazon Ish appears to address only the issue of the status of an organism produced by progenitors who were themselves spawned in naturally flowing bodies of water. However, if his underlying position is taken literally, viz., that only aquatic organisms arising in stagnant water sui generis are exempt from the requirement of fins and scales, organisms that may be so categorized may well constitute a null class.",
+ "The Gemara, Shabbat 107b, declares that kinim, generally identified as lice, may be exterminated on Shabbat with impunity since they do not reproduce sexually. The implication is that lice are the product of spontaneous generation. However, since the time of Pasteur, science has rejected the notion of spontaneous generation and insists that no living organisms are reproduced asexually. That perception obviously has implications with regard to the halakhic status of kinim. Some scholars have taken the position that scientific reports based upon the clinical observations of researchers are unreliable and hence the Halakhah does not change. Alternatively, it is possible to acknowledge the reliability of the scientific evidence but to recognize that the categorical proposition that no organisms can arise sui generis is an inductive generalization which may admit of exceptions and hence may not be universally correct. It may also be maintained that presently extant lice are not identical with those categorized in this manner by the Gemara and that the kinim described by the Gemara no longer exist.",
+ "At least one scholar, R. Isaac Lampronti, Paḥad Yizḥak, erekh zeidah, accepts the scientific finding negating spontaneous generation and pursues it to its logical conclusion. Paḥad Yizḥak asserts that there is no specific Oral Law tradition with regard to kinim as a particular species. Paḥad Yizḥak insists that the principle announced by the Sages is entirely correct in theory but that, empirically, the class of organisms that reproduce spontaneously may be a null class. He points to another talmudic discussion recorded in the Gemara, Pesaḥim 94b, involving a scientific disagreement between the Sages and the \"wise men of the nations of the world\" in which the Gemara reports that R. Judah the Prince conceded that the \"wise men\" were correct and that the Sages had erred. Accordingly, he concludes that, in light of present-day scientific knowledge, killing lice on Shabbat must be regarded as a capital offense.",
+ "If any one of these methods of reconciling the Gemara's position with regard to kinim and scientific theory is accepted and is coupled with the view expressed by Hazon Ish regarding the rationale underlying the exclusion from the requirement of fins and scales of organisms spawned in stagnant water, it follows that the provision of law formulated in Hullin 66b permitting such insects is a dead letter and that no such organism is permitted.",
+ "This writer has long contended that the halakhic principle enunciated by the Gemara with regard to lice is not intended as a literal statement with regard to reproduction. Rather, it is but another manifestation of the principle that Halakhah is predicated upon gross phenomena. As noted earlier, halakhic authorities have uniformly recognized that dietary restrictions do not apply to the imbibing of subvisual creatures. It is similarly arguable that references to regulations applicable solely to species that engage in sexual reproduction are intended as references to perceivable sexual reproduction; hence sexual reproduction that is not perceived as such is treated by Halakhah as if it occurred spontaneously. Put somewhat differently, Halakhah is not based upon ontological reality but upon phenomenological perception.",
+ "R. Meir Simchah ha-Kohen of Dvinsk, Meshekh Hokhmah, Parashat Bo, cites R. Elijah of Vilna who maintains that the reasons or considerations advanced by the Sages in explanation of the various ordinances that they promulgated are not exhaustive in nature; rather, for reasons best known to themselves, they frequently reserved other considerations in pectore. In actuality, that position was formulated much earlier during the Ge'onic period in a responsum of Rav Ha'i Ga'on as recorded in Teshuvot ha-Ge'onim, ed. Mekizei Nirdamim (Lych 5683-5684), no. 1.",
+ "In a comment published in R. Eliyahu Dessler's Mikhtav me-Eliyahu, IV, 355, note 4, the editor reports that Rabbi Dessler resolved the problem concerning kinim in a similar fashion: The halakhic ruling was transmitted to the Sages as a tradition received at Sinai and, although they endeavored to present a reasoned basis for that tradition, the rationale they advanced was neither exhaustive nor necessarily accurate. In his words:",
+ "The explanation does not determine the law. Rather the opposite: the law determines the explanation and the reason mentioned in the Gemara is not the sole possible reason with regard to the matter and if, at times, they presented reasons that are in accordance with the knowledge of nature of their day it is our obligation to seek other explanations in accordance with the knowledge of nature of our day by means of which the law will remain steadfast in its place.",
+ "… But even if a proper reason is not found, we believe with perfect faith that the law is a true law and we hope to God that He will enlighten our eyes to find an appropriate explanation.",
+ "If either of these theses is correct—or if the stance that science is simply wrong is adopted—the Halakhah with regard to exterminating kinim on Shabbat as well as the Halakhah regarding creatures spawned in stagnant water remains unchanged.",
+ "IV. Bittul (Nullification)",
+ "Infested water might nevertheless be permissible were the principle of bittul applicable, i.e., nullification by means of adulteration in a permitted substance sixty times as great. However, despite the minuscule size of the copepods that may be present in tap water, they do not become nullified by virtue of the relatively copious quantity of water in which they are found. The most obvious consideration rendering the principle of nullification inoperative is the fact that even a tiny insect is, by definition, a \"creature\" or beriyah (but among talmudists commonly vocalized as \"biryah\" or \"beryah\") that is not subject to nullification. A second consideration rendering nullification inoperative is the fact that nullification occurs when the identity of the prohibited substance is lost by virtue of the fact that its identity becomes submerged in that of the overwhelmingly larger substance. Hence, in circumstances in which the forbidden substance remains recognizable despite adulteration, it has certainly not lost its identity and hence is not subject to nullification. R. Moshe Viya, Bedikat ha-Mazon ke-Halakhah, I (Jerusalem, 5758), p. 142, note 12, cites R. Joseph Shalom Eliashiv, R. Nissim Karelitz, R. Samuel ha-Levi Woszner and R. Ben-Zion Abba Shaul as maintaining that a forbidden substance that can be discerned only with \"great effort\" (toraḥ gadol) is not regarded as \"perceivable\" (nikar) and hence is subject to nullification provided that it is not a biryah. That point is also made by R. Shlomoh Zalman Auerbach in a responsum published in that volume, pp. 178-179.",
+ "R. Chaim Oberlander seems to suggest that even if it is assumed that extremely tiny insects are subject to nullification because they can be recognized only with \"great effort\" they may nevertheless not be subject to nullification for an entirely different reason. Rema, Yoreh De'ah 98:4, rules that if a small quantity of milk falls into a large pot containing a meat product the milk is not automatically nullified. Rather, cold water must be poured into the pot. The cold water will cause the milk to rise so that it may be skimmed from the top. The reason nullification of the milk does not occur is that the food is a \"davar she-yesh lo matirin,\" i.e., the principle of nullification applies only if the food cannot otherwise be eaten in a permissible manner. Since cold water will cause the milk to rise, the remaining food may be eaten in an entirely permissible manner. However, rules R. Jonathan Eibeschutz, Kereti u-Peleti, Peleti 98:61, in a situation in which food would become spoiled in the process of being mixed with cold water and thereby become inedible, the usual principle of nullification would apply. Kereti, however, apparently accepts the basic principle that prohibited substances that can be recognized only upon exertion of effort do become nullified.",
+ "However, Pri Megadim, Mishbezot Zahav 98:7, advances an entirely different explanation for Rema's ruling. Pri Megadim explains that, in the circumstances described, the milk is regarded as \"recognizable\" since it can be rendered visually perceivable by adding cold water. In effect, Pri Megadim posits that even a merely potentially recognizable entity is considered to be \"recognizable.\"",
+ "It is, however, not at all clear that Kereti accepts the notion that nullification occurs when the prohibited substance can be recognized only with \"great effort.\" The situation involving milk falling into a pot of meat is readily distinguishable from instances in which small particles of a forbidden substance became mingled with a much greater quantity of a permitted foodstuff. In the former case the milk is presently not at all recognizable; unless and until cold water is added to the mixture it is impossible to detect the presence of milk. In the latter case, the exceedingly small forbidden entities can presently be detected, albeit only with great effort, upon meticulous sifting and scrutiny. The milk may be subject to nullification since it is presently entirely undetectable whereas the minute but detectable particles may not be subject to nullification. Indeed, R. Jonathan Eibeschutz himself, Peleti 84:19, rules that a forbidden substance, when recognizable, is not subject to nullification even if it can be recognized only upon exertion of great effort. That is also the view of Pri Megadim, Yoreh De'ah, Siftei Da'at 84:35 and Hazon Ish, Yoreh De'ah 14:6.",
+ "However, R. Menachem Mendel Schneersohn, Teshuvot Ẓemaḥ Ẓedek, Yoreh De'ah, no. 70, asserts that a forbidden substance that can be recognized only upon \"great effort\" does become nullified. That is apparently also the position of Arukh ha-Shulḥan, Yoreh De'ah 100:7. Rabbi Viya, Bedikat ha-Mazon ke-Hilkhatah, I, 7: introd., note 1, states that a similar conclusion can be inferred from the discussions of Teshuvot ha-Rashba, I, no. 259 and R. Chaim Halberstam, Teshuvot Divrei Hayyim, II, Yoreh De'ah, no. 54.",
+ "Even more akin to the case at hand is the ruling of Issur ve-Hetter 32:9, cited by Darkei Mosheh, Yoreh De'ah 104:1, to the effect that a prohibited substance that falls into a liquid but which can be removed by straining is not subject to nullification. Copepods can readily be eliminated from the tap water by means of filtration.",
+ "V. Boiled Water and Cooked Food",
+ "There are, however, circumstances in which bittul, or nullification, may be applicable. With regard to fruit that requires examination for possible insect infestation, Shulḥan Arukh, Yoreh De'ah 84:9, rules that, if the unexamined fruit has been cooked in a manner that renders subsequent examination impossible, post factum, the cooked fruit is permissible. As explained by Shakh, Yoreh De'ah 84:29, that ruling is predicated upon the principle of sefek sefeika or \"double doubt,\" i.e. first, the presence of an insect is doubtful and secondly, even if present, it is possible that the insect has been crushed and hence has become nullified in the larger quantity of permissible foodstuff. Citing earlier sources, Shakh concludes that, in a locale in which infestation by insects has been established \"huḥzeku,\" the presence of insects in the fruit must be regarded as tantamount to a certainty and hence the food is forbidden.",
+ "However, Taz, Yoreh De'ah 84:17, disagrees with Shakh in maintaining that, upon cooking, the foodstuff is permissible even if it is known that such fruit is commonly infested. According to Taz, even if there is but a \"remote possibility\" (zad raḥok) that no insect was present, the food is permissible on the basis of the principle of sefek sefeika.",
+ "Rabbi Oberlander seeks to relate that controversy to the situation of unexamined water used for cooking. Applying the principle of sefek sefeika, he asserts that the cooked food is permissible. Even in situations in which the presence of copepods is widespread, the cooked food or boiled water, he argues, is permissible according to Taz. However, in the opinion of this writer that conclusion is not warranted. It is surely the case that insects typically found in fruit quite often become crushed or dismembered in the process of cooking; hence the status of such an organism in food that has been cooked is indeed a matter of doubt. There is, however, to the best of this writer's knowledge, no evidence that such crushing takes place when extremely minuscule, barely visible organisms (such as copepods) find their way into a pot. Such tiny creatures, it would seem, will remain intact unless a concerted effort is made finely to grind the food in question. Accordingly, insofar as use of boiled water for tea, coffee and the like is concerned, there is no reason to assume that any organism becomes crushed in the boiling process. Moreover, as noted by Teshuvot Maharam Lublin, no. 27, as well as by R. Samuel Landau, Teshuvot Shivat Ẓion, no. 28, and Teshuvot Rav Pe'alim, IV, Yoreh De'ah, no. 8, although in cooking, a process in which food is often rinsed by hand and stirred by means of a cooking utensil, there is a realistic likelihood that any organism present may become crushed, such crushing is not likely to occur when water is simply boiled in a kettle or a pot.",
+ "Indeed, R. Yitzchak Bistritsky, Or Yisra'el, p. 203, reports that, after boiling water for three quarters of an hour, he found copepods that were completely intact. Hence, empirically, there is no sefek sefeika that would render such cooked food permissible. Moreover, as Rabbi Oberlander himself notes, tea or coffee can readily be strained even after it has been fully prepared. Obviously, although it is not permitted to cook forbidden objects in reliance upon nullification, coffee that has already been brewed by a method in which a filter is employed is permissible.",
+ "VI. Use of Filters on Shabbat",
+ "Use on Shabbat of a faucet to which a filter has been attached presents an entirely different problem. Removal of an insect from a food product or from a beverage on Shabbat presents a problem of borer, i.e., the prohibited \"selection\" or removal of a waste product or undesired object, e.g., from food to be eaten or from other objects to be used for some other purpose. Ordinarily, an insect might be removed together with a small quantity of the food or beverage in which it is found rather than in isolation. Since a portion of the perfectly desirable foodstuff is removed together with the disdained entity, the separation remains incomplete and hence permissible. However, a filter will remove only the insect as well as any other fragments of undesired dross. Hence the problem of borer, or impermissible separation, arises.",
+ "The problem, however, exists only if there is a desire and need to achieve a separation. A person who does not suspect the presence of a forbidden organism and who would be perfectly willing to drink unfiltered water may open a faucet to which a filter has been attached. By the same token, there is no problem with using filtered water for washing one's hands on Shabbat since there is no reason to be concerned with the presence of insects in water used for that purpose. A similar problem is identified by R. Joshua Neuwirth, Shemirat Shabbat ke-Hilkhatah, I, 3:56, note 163, who reports that R. Shlomoh Zalman Auerbach expressed astonishment at the use of a filter on the first and last days of Pesaḥ by individuals concerned with regard to possible contamination of the water supply by ḥamez.",
+ "Comprehensive discussions of the issues involved in straining water on Shabbat are presented by R. Chaim Oberlander and R. Joel ha-Levi Rosner in the Tishri 5765 issue of Or Yisra'el.",
+ "The issue of straining water on Shabbat for a comparable purpose was first addressed by Kaf ha-Hayyim, Oraḥ Hayyim 319:120. Kaf ha-Hayyim ruled that, in Jerusalem, water might be strained on Shabbat. Apparently, during the period in which that work was written, there was concern that insects might be present in the Jerusalem water supply. However, even if present, those insects were not forbidden aquatic creatures since they spawned in cisterns. The concern was solely due to the fact that consumption of insects is revolting to most people and hence is forbidden by virtue of the prohibition \"You shall not make yourselves repulsive\" (Leviticus 11:43). However, that prohibition is operative only if the presence of insects is known with certainty; if their presence is merely doubtful there is no revulsion attendant upon drinking the water. Basically, Kaf ha-Hayyim's position is that, if straining is required as a matter of Halakhah, it is forbidden on Shabbat but, if straining is not normatively required, it is permissible. However, in a subsequent comment, Kaf ha-Hayyim, Oraḥ Hayyim 319: 223, cites earlier authorities who ruled that straining is indeed required. Nevertheless, Kaf ha-Hayyim permits straining on Shabbat with the stipulation that the straining be performed by two persons acting simultaneously and that the straining be performed in an unusual manner.",
+ "R. Abraham Chaim Noe, Kezot ha-Shulḥan, IV, 125:14, Badei ha-Shulḥan, no. 37, cites Hayyei Adam, Hilkhot Shabbat, Nishmat Adam 16:5, who suggests that it may be permissible to strain insects that are not repulsive on Shabbat. Rabbi Noe asserts that, since the individual has no personal desire to effect the separation but rather the sole consideration motivating a person not to imbibe such insects is the prohibition attendant upon them, there is no prohibition of borer. The argument is that the prohibition is attendant only upon separation of something that is not desired from something that is desired. The insects in question are neither objectively nor subjectively undesirable for any mundane reason; they are eschewed only because of concern lest a halakhic prohibition be violated. Selection and separation on the basis of a consideration that is best described as metaphysical, he argues, does not entail a forbidden act of borer. However, Nishmat Adam regards that distinction as questionable.",
+ "Kezot ha-Shulḥan observes that whether or not insects are present in the water is itself a matter of empirical doubt. Consequently, Kezot ha-Shulḥan concludes that, according to Nishmat Adam, straining on Shabbat would be permissible on the basis of the principle of sefek sefeika or \"double doubt.\" The identical consideration would render filtering New York City water on Shabbat permissible since at any given time the presence of insects is doubtful. The \"double doubt\" lies in the combination of the doubt with regard to the fact, i.e., the presence of copepods, and the halakhic doubt regarding the permissibility of straining such copepods on Shabbat.",
+ "Kezot ha-Shulḥan, however, draws an inference from a ruling of Shulḥan Arukh ha-Rav, Oraḥ Hayyim 319:23, that serves to establish that straining on Shabbat is forbidden even if the purpose is to remove insects that are not repulsive. On the basis of that inference, Kezot ha-Shulḥan rules contrary to the position of Nishmat Adam. The source for the ruling that a foodstuff not intrinsically disdained, but rejected only because of its nature as a halakhically prohibited substance, is not subject to the prohibition of borer is a statement of Magen Avraham, Oraḥ Hayyim 500:12, with regard to separation of prohibited fat (ḥelev) from meat on Shabbat. A similar statement made in a different context appears in Magen Avraham 466:8. Kezot ha-Shulḥan observes that Magen Avraham's ruling is limited to situations in which both the separated portion and the consumed portion are of the same species, e.g., both are meat, and hence fungible other than because of the prohibition. However, insects and water are intrinsically different substances and hence, asserts Kezot ha-Shulḥan, even if insects are eschewed only because of an attendant prohibition, the restriction of borer applies.",
+ "Hazon Ish, Oraḥ Hayyim: Mo'ed 53, suggests that a filter may be used on Shabbat to assure that insects are not present in water flowing from the faucet on condition that the glass or container in which the water is collected be removed from the faucet before the spigot is turned off so that a portion of the water filtered in that manner is wasted in the act of filtration. However, Hazon Ish concludes that the expedient is of no avail if the water is infested by \"many\" insects. Nevertheless, R. Yitzchak Ya'akov Weisz, Teshuvot Minḥat Yizḥak, VII, no. 23, advises that the expedient suggested by Hazon Ish be employed on Shabbat.",
+ "VII. Concluding Comments",
+ "During the period in which the attention of some sectors of the Jewish community in New York City was focused upon possible halakhic problems regarding drinking water the parasitic disease section of the Centers for Disease Control and Prevention engaged in an active campaign to inform the public of potential health hazards associated with swimming in any body of water. The concern of the Centers for Disease Control focused upon swimming pools because of the prevalence of a parasite called cryptosporidium that may be responsible for eye, skin and respiratory infections as well as for gastrointestinal disorders. Clearly, swimming pools are not risk free.",
+ "Nor is New York City drinking water free of contaminations that pose risks to human health. In the New York City 2003 Drinking Water Supply Quality Report published by the Department of Environmental Protection that city agency advised that a significant majority of water samples taken from the Kensico Reservoir and the New Croton Reservoir were positive for giardia and cyptosporidium, microscopic pathogens that may cause intestinal illness. The DEP advises that immuno-compromised persons, such as patients undergoing chemotherapy, transplant recipients, persons suffering from Crohn's disease or HIV, as well as the elderly and infants \"should seek advice from their health care providers about their drinking water.\"",
+ "Elsewhere in the same document, the DEP reports that treatment of water with chlorine to destroy microorganisms results in the forming of haloacetic acids and concludes with the following observation:",
+ "New York State requires the following statement: Some studies of people who drank chlorinated drinking water for 20 to 30 years show that long-term exposure to disinfection by-products (possibly including haloacetic acids) is associated with an increased risk for certain types of cancer. However, how long and how frequently people actually drank the water as well as how much haloacetic acids the water contained is not known for certain. Therefore, we do not know for sure if the observed increased risk for cancer is due to halaoacetic acids, other disinfection by-products, or some other factors. The individual haloacetic acids dichloracetic acid and trichloroacetic acid cause cancer in laboratory animals exposed to high levels over their lifetimes. Dichloroacetic acid and trichloroacetic acid are also known to cause other effects in laboratory animals after high levels of exposure, primarily on the liver, kidney and nervous system and on their ability to bear healthy offspring. Chemicals that cause effects in animals after high levels of exposure may pose a risk to humans exposed to similar or lower levels over long periods of time.",
+ "Certainly the authors of that material do not anticipate, nor do they desire, that all readers immediately desist from utilizing New York water for drinking purposes. The physicians and epidemiologists employed by the Centers for Disease Control find it their duty to make the public mindful of potential harm so that individual members of society may make their own determinations with regard to the risks they are willing to assume.",
+ "The United States has difficulty exporting its grain to European countries because of a perceived danger associated with genetically engineered food products. One need only enter any supermarket to observe organically grown produce and non-organically grown produce displayed side by side. The price discrepancy between organic and non-organic fruits and vegetables is justified solely on the basis of the fact that organic produce is free of carcinogens associated with pesticides. Obviously, some consumers are willing to pay a premium for avoidance of even a slight health risk. Dentists routinely seek a full set of x-rays of a patient's teeth annually. Some patients just as routinely decline the potential benefit of dental x-rays despite the low dose of the radiation involved because the effects of radiation are cumulative over a lifetime and no one has definitively established an absolutely safe threshold.",
+ "There is little question that in each of these cases the risk involved is well within the category of \"shomer petai'im Ha-Shem—the Lord pre-serves the simple\" (Psalms 116:6) and hence is halakhically acceptable. But to say that a specific form of conduct is halakhically acceptable is not to say that it is sagacious or even prudent. Some people are more prudent than others; some are more open to risk-taking than others. Such variations of temperament serve to explain why two equally intelligent individuals may make different choices with regard to assumption of minimal, albeit real, risk of life or well-being. Where real risks exist, or when the absence of risk cannot reasonably be excluded, a person who seeks to avoid the risk in question is neither neurotic nor irrational and should not be regarded in that light by a person willing to assume the risk, just as a person who is willing to accept a degree of risk associated with an unsecured financial venture in return for the anticipation of a higher return on his investment should not be regarded as irrational by a person who willingly forgoes a higher return in favor of guaranteed preservation of capital.",
+ "The same is true with regard to potential transgression and its attendant spiritual harm. Halakhah generally forbids even acts that are doubtfully forbidden. However, again generally speaking, when the chance of transgression is remote, Halakhah does not forbid such acts. Nevertheless, concerned individuals to whom the onus of transgression is as serious as is the fear of bodily harm will refrain from acts that harbor even the possibility of transgression.",
+ "It seems to this writer that this is the thrust of the remarks of R. Moshe Chaim Luzzato, Mesilat Yesharim, chap. 14. The topic addressed by Mesilat Yesharim is \"perishut,\" literally, asceticism. Asceticism is certainly not an ideal in Judaism. Yet certain forms of self-denial are regarded as salutary. One of those is identified by Mesilat Yesharim as \"perishut be-dinim\" or \"asceticism with regard to laws.\" As Mesilat Yesharim explains, persons who eschew certain pleasures or benefits because of fear of transgression, even when Halakhah does not mandate such a high state of vigilance, act in a commendable manner.",
+ "In small towns in Europe inhabitants not only raised chickens for food but often maintained cows in their backyards in order to obtain milk. R. Israel Meir ha-Kohen, the Hafez Hayyim, also kept a cow for that purpose. Members of Hafez Hayyim's family relate that one day he suddenly stopped drinking milk or eating any dairy products prepared from milk given by that cow. When questioned about the sudden change in his eating practices, Hafez Hayyim turned a deaf ear and refused to respond. Repeated questioning elicited only adamant refusal to answer. Eventually, the cow stopped giving milk. Since there was no longer any reason to maintain the cow it was slaughtered. Lo and behold, upon examination by the shoḥet, adhesions were found on the lungs and the cow was pronounced non-kosher. Suddenly, Hafez Hayyim's earlier demurral to drink milk derived from the cow became cogent: the milk of a non-kosher animal is non-kosher.",
+ "How did Hafez Hayyim become aware of the fact that his cow had developed adhesions? Certainly not on the basis of some prophetic inspiration. Had such information been revealed to him, presumably he would have been duty-bound to inform his family so that they not inadvertently fall into transgression. There is a quite simple explanation for Hafez Hayyim's behavior. As animals age, they, no less so than humans, become prone to illness. Hafez Hayyim realized that his cow had reached a stage in bovine life at which disease and illness were more than remote possibilities. Concern for his spiritual welfare caused him to eschew milk that might be tainted with even the suspicion of spiritual harm. Was he halakhically required to act as he did? Certainly not. Unless empirically rebutted, the halakhic presumption that the majority of animals are not tereifot applies even to aging animals. Hafez Hayyim's avoidance of the milk of that particular cow reflected a finely-honed sensitivity to the possibility of transgression.",
+ "The concern with regard to New York water is far more profound. It is quite conceivable that, at least in some neighborhoods, the incidence of infestation does not rise to a level that serves to generate a halakhic concern. The general rule, subject to limited exceptions, is lo maḥazikin rei'uta, i.e., one is not required to suspect halakhic contamination of one type or another unless there is basis for such suspicion. In the absence of halakhically recognized grounds for suspicion, subjective concern may be grounds for personal stringency but not for a normative prohibition. However, when cogent grounds for fear rising to the halakhic threshold of suspicion do exist, the obligation not to risk transgression becomes a matter of normative law. The fundamental issue with regard to New York water is whether the grounds for suspicion rise to that level.",
+ "An isolated sighting of a forbidden insect would not result in a mandatory requirement for examination of all water. Such an event might be dismissed as an isolated occurrence. Animals are not routinely examined upon slaughter for every possible anomaly. Since the majority of all animals are not tereifot, there is no halakhic requirement to suspect that any given animal is a member of the minority class of tereifot. However, examination of the lungs for the presence of adhesions is required despite the fact that the majority of animals do not develop disqualifying adhesions. Examination of the lungs is required because, unlike other tereifot, adhesions are present in a mi'ut ha-mazui, i.e., in a significant minority of animals. Shakh, Yoreh De'ah 84:28, indicates that examination of food products for the presence of insects is required as a matter of normative law if insect infestation represents a mi'ut ha-mazui.",
+ "Thus, the crucial question with regard to whether or not a halakhic problem exists with regard to the New York water supply is whether the incidence of infestation rises to the level of a mi'ut ha-mazui. The answer is not necessarily uniform for all areas throughout the city. Some areas may be muḥzak be-tola'im, i.e., they may be known to be plagued by repeated instances of infestation; other areas, and even some buildings within infested areas, may have repeatedly been shown to be free of infestation. Although copepods are known to be present in the reservoir, water in buildings shown to be free of infestation has, in effect, undergone a self-filtration process. In this writer's opinion, where copepods have been found, filtration of water is certainly to be advised; in buildings shown to be free of infestation, filtration is not required.",
+ "The species which originate in dust heaps and carcasses, such as maggots, worms and their like and which are born, not through intercourse between male and female, but out of putrefaction of dung and the like are called \"creeping things that move upon the earth\" (Leviticus 11:44). … On the other hand, \"all creeping things that creep upon the earth\" (Leviticus 11:42) refers to such that procreate by intercourse between male and female."
+ ],
+ "Chapter 8 Piscatorial Parasites": [
+ "\"…you shall not defile yourselves with them, that you should be defiled by them\" (Leviticus 11:43). A person must guard with much caution and alacrity against anything that possibly enters into the category of detestable [creatures], especially in these times when the atmosphere and terrestrial areas have all become polluted.",
+ "OR HA-HAYYIM, AD LOCUM",
+ "I. The Anisakis Problem and its Precursors",
+ "Fish has always been the food of choice for those concerned with matters of kashrut. Unlike meat, that not only must be slaughtered, porged, soaked and salted in accordance with the myriad provisions of Halakhah, any fish having fins and scales may be consumed without further ado. Questions concerning the permissibility of fish which have become a staple in the diet of observant Jews are quite unsettling.",
+ "A vigorous debate has erupted among rabbinic authorities both in Israel and in the Diaspora regarding the permissibility of consuming fish known to be infested by a parasitic nematode known as Anisakis. Among the suspect species are wild salmon, cod, flounder, Alaskan sole, halibut, pollack, red snapper, perch, Pacific sable, mackerel, blue whiting, herring and sardines imported from Norway and Scotland. The problem is limited to fish harvested in their natural habitats in which, in many cases, the Anisakis also thrives. Farmed fish present no problem since, due to the absence of the marine species in which Anisakis lay their eggs, Anisakis larvae have no opportunity to infest the waters in which farmed fish are raised. Farmed salmon is much less expensive, and hence more common, than wild salmon. The same is true of smoked and cured farmed salmon. However, for a number of reasons, canned salmon is usually of a wild salmon variety and have been found to be infested.",
+ "By no means is this the first controversy of such nature in modern times. In recent decades there have been a number of contretemps centering upon parasites now commonly found in fish. The first such problem arose in 1978 with regard to the permissibility of sable and a subsequent issue with regard to worms found in other fish, including Canadian whitefish, was debated in the late 1990s. Extensive analyses of the questions posed at those times are presented in various contributions to Or Yisra'el, no. 6 (Tevet 5757), \"Kuntres ve-Yirdu be-Degat ha-Yam,\" pp. 137-250.",
+ "The facts surrounding the first of that series of controversies concerning parasites found in sable are described in detail by R. Samuel ha-Levi Woszner, Teshuot Shevet ha-Levi, IV, Yoreh De'ah, no. 83. As reported in the name of ichthyologists, the source of those parasites are sailfish. The parasites lay eggs in the sailfish which in turn excrete them into the ocean. The eggs (or probably larvae) are ingested by shrimp in whose intestines the parasites hatch. The shrimp, in turn, are eaten and digested by cod and sable. The parasites survive and infest the flesh of the sable.",
+ "In the earlier instances the matter was dismissed by most rabbinic scholars because of lack of empirical evidence that the parasites in question were of a category that is halakhicly forbidden. However, with regard to the current controversy concerning the Anisakis worm there is a plethora of evidence, both empirical and scientific, giving substance to the problem. R. Schneur Zalman Revach, head of the Machon le-Mizvot ha-Teluy'ot ba-Arez, was apparently the first to bring the Anisakis issue to the attention of rabbinic decisors. Rabbi Revach conducted a thorough investigation of the problem. He personally performed numerous examinations of infested fish and has observed the Anisakis in various stages of development. Detailed information derived from those investigations is presented by Rabbi Revach in his Tola'at Shani (Bet Uzi'el, 5767), II, Birurei Halakhah, chap. 5, reprinted in Or Yisra'el, no. 54 (Tevet 5769), pp. 34-41, and in subsequent contributions to that journal. An excellent and widely circulated, but regrettably unpublished, analysis of the problem has been authored by Rabbi Gershon Bess of Los Angeles. Many of the pertinent halakhic issues were earlier discussed by R. Yisra'el Dov Halberstam of Antwerp in Kuntres Ve-Anokhi Tola'at, included as an addendum to his anonymously published Yad Mikveh (n.p., 5754).",
+ "Fish infested by Anisakis parasites have been banned by virtually all recognized Israeli authorities, including R. Joseph Shalom Eliashiv, R. Nissim Karelitz, R. Samuel ha-Levi Woszner, R. Chaim Kanievsky, R. Moshe Sternbuch, R. Chaim Greineman and R. Shlomoh Amar. The most notable Israeli exception to this consensus is R. Moshe Landau of Bnei Brak. The ruling forbidding such parasites was affirmed in a statement dated 18 Iyar 5771 signed by Rabbis Eliashiv and Woszner as well as by R. Feivel Cohen, R. David Feinstein and R. Aaron Schechter and published in Hamodia, 28 Iyar 5771, p. D5 and in Yated Ne'eman, 5 Sivan 5771, p. 41. A number of American rabbinic personalities, primarily among those identified with the hasidic sector, including R. Yechezkel Roth, formerly a dayyan of the Satmar community, have ruled permissively. Numerous articles representing both sides of the controversy were published in Or Yisra'el, no. 54 (Tevet 5769), pp. 18-56; no. 56 (Tammuz 5769), pp. 43-56; no. 57 (Tishri 5770), pp. 148-154; no. 58 (Tevet 5770), 146-152; no. 60 (Tammuz 5770), pp. 32-54; and no. 61 (Tishri 5771), pp. 15-72.",
+ "The life cycle of the Anisakis worm is quite remarkable. The cycle begins with mature worms present in marine mammals such as whales or dolphins. The worm deposits its eggs in the mammal. The marine mammal excretes unembryonated eggs which then slowly fall to the ocean floor. The Anisakis worms become embryonated in the water and larvae develop from the eggs. The free-swimming larvae are ingested by crustaceans, most significantly by krill, and mature within their host. The host is then consumed by a predator, e.g., a marine mammal, salmon or flounder, etc., that digests the host but not the Anisakis. The Anisakis then proceeds to encyst itself in the viscera of the host fish. Some of the parasites succeed in piercing through the walls of the visceral organs and migrate into the flesh of the fish. This occurs most frequently after the death of the host fish even though the fish is refrigerated. The parasites die only when the fish is frozen.",
+ "Creatures lacking fins and scales \"of all that swarms in the waters\" (Leviticus 11:10) are biblically proscribed. Included in the prohibition against consuming such marine creatures are not only fish and crustaceans but also insects and the like whose natural habitat are \"the seas and the rivers.\" Such creatures are forbidden even after having been ingested by a kosher fish but, as explained by the Gemara, Hullin 67b, similar organisms generated within an animal or the flesh of the fish are permitted. Accordingly, as recorded in Shulḥan Arukh, Yoreh De'ah 84:16, worms found within the entrails of a fish are forbidden because it is to be presumed that they were earlier present in the water and were ingested by the fish, whereas such creatures, when found between the skin and flesh, or, according to most authorities, within the flesh of the fish itself, are permitted. Even if they develop within the fish while the fish is still alive, such creatures are regarded as having originated in the fish itself. As enunciated by the Gemara, the applicable principle is that creatures that grow from the flesh of a kosher fish or of an animal that has been slaughtered are entirely permissible.",
+ "Despite the relative clarity—in application, if not in theory–-of the principles governing the status of insects found in fish, a number of controversies arose in previous generations. Insects found on the surface of a fish are, quite understandably, presumed to have flourished in water rather than in the fish itself and hence are forbidden. R. Abraham Danzig, Hokhmat Adam 38:28, reports that, beginning in the spring and until the onset of winter, he \"many times\" observed the presence of worms in the mouths and ears of various species of fish, particularly hecht. During that season, rules Hokhmat Adam, fish must be examined for the presence of such worms. Hokhmat Adam further reports that, although they were not to be found in his own city of Vilna, in many locales, \"fish lice\" were also found to be present in the proximity of the fins and in the mouths of fish. The fish lice are described as \"round as barley\" with tiny black eyes placed close together. In Prague \"everyone recognized them\" and a well-known ban existed against consuming those fish without vigorous scraping in the area of the fins and the tail and examination behind the ears and mouth.",
+ "Nevertheless, R. Meir Arak, Teshuvot Imrei Yosher, II, no. 11, reports that, at least in some areas, many people ate carp regularly without performing such an examination despite the known presence of the lice described by Hokhmat Adam. In defending that practice, Imrei Yosher entertains the possibility that only worms found on the surface of the fish must be presumed to originate in the water that is the fish's habitat but that perhaps those found \"under the scales\" are more likely to be generated within the fish itself. Imrei Yosher concludes that there are grounds to permit eating such fish without examination but only if scientists will testify that the source of the worm is the flesh of the fish. Not surprisingly, there is no indication that such substantiation was forthcoming. R. Israel Jacob Klapholz, Admorei Belz, IV (Bnei Brak, 5736),118, reports that R. Aaron Rokeach refused to accept a lenient ruling reported in the name of R. Shalom Mordecai Schwadron (Maharsham) with regard to this matter and also rejected the expedient of removing the scales of the fish to examine for the presence of parasites. Moreover, when told that a respected personality, R. Saul Brock, had issued a permissive ruling, he responded to his informant by saying, \"I appoint you my agent to ask him to retract his ruling.\"",
+ "II. The Anisakis in Light of Rambam's Stringent Ruling",
+ "Contradicting the majority of early-day authorities, Rambam, Hilkhot Ma'akhalot Assurot 2:17, rules that only worms generated in the rotting flesh of dead fish are permitted but those generated while the fish are still alive, even if the worms are found embedded in the flesh, are forbidden. As explained by Maggid Mishneh, ad locum, such worms are forbidden as a matter of doubt because of the possibility that they may have been ingested together with water and swallowed by the fish and later migrated into the flesh, whereas it is the nature of decaying tissue to generate worms. Maggid Mishneh explains that the word \"darni\" employed by the Gemara to denote permitted worms specifically refers to creatures generated in decaying flesh. According to Rambam, only creatures found in the decaying flesh of a dead organism are presumed to have been generated by that organism.",
+ "As understood by Maggid Mishneh, the controversy between Rambam and opposing authorities is limited in nature and involves no dispute with regard to any fundamental halakhic or scientific principle. All agree that organisms generated outside the animal or fish are forbidden and all accept both the principle of spontaneous generation or its equivalent and the principle that, when known to have been generated within an animal or fish, such organisms are permitted. The sole dispute is with regard to the presumption attendant upon organisms found embedded in the flesh of the animal or fish. Rambam maintains that the origin of such organisms is a matter of doubt and hence they are forbidden unless found in flesh that has begun to rot since only in that case may they be presumed to have been generated by the decaying flesh. Rambam's opponents rule that, when found in the flesh of the creature rather than in the creature's internal organs, it may be assumed that the organisms were generated within the flesh of the creature and hence are permitted.",
+ "R. Ephraim Zalman Margulies, Teshuvot Bet Efrayim, Yoreh De'ah, no. 25, asserts that numerous early-day authorities, including Sefer ha-Terumot, no. 36; Sefer Mizvot Gadol, lo ta'aseh, no. 132; Sha'arei Dura, no. 54; and Rokeaḥ, concur in Rambam's opinion, and, for that reason, Bet Efrayim strongly leans toward ruling in accordance with Rambam's stringent view. Although Shulḥan Arukh accepts the permissive view of the many early-day authorities who disagree with Rambam, Shulḥan Arukh concludes his codification of that ruling by declaring, \"There are those who forbid worms that are generated after slaughter.\" Be'er ha-Golah and Arukh ha-Shulḥan, ad locum, identify the anonymous authority cited by Shulḥan Arukh as Rambam. R. Moshe Mordechai Karp, in a brief monograph titled Le-Afrushei me-Issura: Be-Inyan Kashrut ha-Dagim (5770), cites Shakh, Yoreh De'ah 243: kizur klalei issur ve-hetter, sec. 5, and Kaf ha-Hayyim 243:164 who declare that whenever an authority is cited in that manner by Shulḥan Arukh, even though the normative rule is permissive, nevertheless, \"a pious person should be stringent for himself.\" According to that view, all fish infested with parasites should be abjured even in the absence of positive evidence that the parasites are commonly imbibed by the fish from the water in which it swims. Thus, concludes Rabbi Karp, \"a pious person\" should abstain from eating Anisakis-infested fish regardless of how the controversy is resolved.",
+ "III. Anisakis and the Talmudic Presumption of Permissibility",
+ "The authorities who are unconcerned with regard to possible Anisakis infestation of commonly consumed fish do not accept Rambam's position. For the most part, they regard the principle formulated by the Gemara regarding spontaneous generation of insects in the flesh of fish as empirically correct, universal in nature and an irrebuttable presumption not subject to scientific challenge. They regard any challenge to that position as either bordering upon, or as actual, heresy. The many scholars who regard the problem in a serious light either maintain that the Gemara refers to a specifically named organism or do not regard the statement of the Gemara as universally applicable to all organisms and hence distinguish the Anisakis on either halakhic or empirical grounds. Some authorities declare that the principle of \"nishtaneh ha-teva—nature has changed\" is applicable and assert that, although spontaneous generation occurred in ancient times, it is no longer a reality or, alternatively, state simply that, although parasites such as Anisakis were rare in earlier ages, they have become much more common in our era. Indeed, Shakh, Yoreh De'ah 84:22, states that frequency of infestation varies from place to place and from era to era. Rabbi Halberstam, addenda to Ve-Anokhi Tola'at, p. 39, attributes increased infestation in our day to present use of refrigeration enabling fish to be shipped long distances without being eviscerated. As noted earlier, migration of Anisakis from the intestine takes place after the death of the host. Some scientists attribute proliferation of parasites to the warming of sea waters. Accordingly, it is not surprising that changed empirical reality results in halakhic rulings differing from those applicable in circumstances that prevailed in earlier times.",
+ "Rabbi Karp, Or Yisra'el no. 58, p. 147, and R. Moshe Eliezer Bloom, Or Yisra'el, no. 54, p. 20, cite numerous authorities, including Rabbenu Nissim, Rashba, Ran, Re'ah, Me'iri and Hagahot Asheri, who employ language indicating that the worms permitted by the Gemara are sanctioned only because, in the assumed circumstances, it is impossible that they might have spawned in water and subsequently have been swallowed by the fish. The Gemara declares that, were that the case, worms of the same species would also be found in the excretory organs. Thus, for example, Ran, Hullin 66b, writes, \"Worms found in meat that could not possibly come from outside, but are generated from the meat, are permitted.\" Re'ah, loc. cit., similarly states that, \"Worms found in meat in a place in which it is not possible that they came from outside\" are permitted.",
+ "In their discussions, both Rabbi Karp and Rabbi Bloom (ibid., pp. 22-23) assert that parasites found in the flesh are permitted only because there is no evidence, and no reason to assume, that they migrated from the digestive tract. However, they cogently contend, when there are grounds to suspect otherwise, such organisms are prohibited. That view was previously formulated by R. Shlomoh Zalman Ehrenreich, Teshuvot Leḥem Shlomoh, Yoreh De'ah, no. 71, and by Rabbi Halberstam, Ve-Anokhi Tola'at, p. 7. Rabbi Karp notes that Baḥ, Yoreh De'ah 84; Knesset ha-Gedolah, Yoreh De'ah 84:101; and R. Shlomoh Luria, both in his glosses to Sha'arei Dura 47:3 and in Yam shel Shlomoh, Hullin 3:106, declare that only worms found in a previously uncut and uneviscerated fish are permitted because it is virtually impossible that the worms could have come from the water and penetrated that deeply into the fish whereas the provenance of worms found in an already opened or cut fish is indeterminable and hence such worms are forbidden. R. Samuel ha-Levi Woszner, Teshuvot Shevet ha-Levi, IV, no. 83 and VII, no. 127, sec. 3, and R. Nathan Gestetner, Teshuvot Le-Horot Natan, IX, no. 25, similarly maintain that piscatorial organisms are permissible only when it can be determined with certainty that they were not ingested by the fish.",
+ "The identical argument is also advanced by R. Moshe Saul Klein, an associate of Rabbi Woszner, in a contribution to the symposium published in Or Yisra'el, no. 61, pp. 33-35. Rabbi Klein distinguishes the Anisakis from the worms permitted by the Sages. The permitted worms, he asserts, were sanctioned only because they are \"certainly\" generated within the flesh of the fish itself. Citing Teshuvot Bet Efrayim, Yoreh De'ah, no. 25, Rabbi Klein argues that such a conclusion is warranted only if evidenced by the absence of a perforation between the skeletal flesh and the internal portion of the fish through which a worm generated externally and swallowed by the fish might have migrated. According to Bet Efrayim, absence of such a perforation is required to confirm that the worm could not have bored its way through the intestinal wall. However, when Anisakis is found in the flesh, argues Rabbi Klein, absence of such a perforation is meaningless because that nematode is so tiny that any hole it created would not be of sufficient size to be perceived. As will be noted subsequently, actual presence of such holes is additional evidence of the worm's origin in the digestive tract.",
+ "IV. Parasites Found Both in the Flesh and in the Digestive Tract",
+ "Rabbi Karp makes one additional point. The Gemara speaks only of worms found in the digestive tract or in the flesh. However, all early-day authorities discuss the status of worms found either in the digestive tract, in the flesh or between the flesh and the skin. They do not directly address the situation in which the same species of worm or insect is found both in the digestive tract and in the flesh. The latter is virtually always the case with regard to Anisakis. As clearly expressed in numerous sources, worms found in the flesh are permitted because there is no reason to suspect that the worms originated outside the fish. Worms found in the digestive tract are always deemed to have come from outside the fish and to have been ingested by the fish. According to Rabbi Karp, if forbidden worms are indeed found in the digestive tract and other worms of the same species are also found in the flesh, there is certainly at least as much reason to assume that they penetrated the viscera and entered the flesh as there is to assume that they were generated within the flesh of the fish. Teshuvot Le-Horot Natan, IX, no. 24, sec. 12 and no. 25, reaches a similar conclusion. That is certainly the case in situations in which the worms are found in tissue immediately adjacent to the internal organs. Such a conclusion is even more compelling when, as is the case with regard to Anisakis, tiny holes in the intestinal wall can be observed upon examination.",
+ "In advancing an opposing position, R. Moshe Roth, Or Yisra'el, no. 57, pp. 151-153, contends that it is no more likely that worms penetrate from the digestive tract into the flesh than vice versa. Rabbi Roth asserts that the Sages assumed that such creatures, at least in a mature state, are not capable of piercing the walls of an organ in migrating from one site to another. Consequently, even if mature organisms are present in the viscera, any parasites found in the flesh of the fish, even if they are of the same species as those found in the viscera, must have developed within the flesh and hence, he declares, such creatures are permissible. The authorities who rule permissively fail to address the status of an Anisakis found partially within the intestine and partially within the flesh.",
+ "Recognition of the ability of parasites to pierce the walls of the digestive tract is reflected in the fact that numerous authorities prohibit worms that are found between the digestive tract and surrounding muscle or skeletal tissue. Among those are Teshuvot Bet Efrayim, Yoreh De'ah, no. 25, who forbids organisms found on the external surface of visceral organs; R. Yehudah Ayash, Leḥem Yehudah, Hilkhot Ma'akhalot Assurot 2:17, R. Chaim Pelaggi, Mo'ed le-Khol Hai 12:20 and Teshuvot Matteh Re'uven, no. 167, who declare that the entire abdominal cavity is included in the category of viscera; and R. Shlomoh Ganzfried, Kizur Shulḥan Arukh 46:43, who prohibits worms found on the internal fatty tissue of herring.",
+ "As noted earlier, the controversy actually hinges upon a contingency not addressed by the Gemara. The Gemara speaks of worms found within the digestive tract and other internal organs and of worms found in the flesh. The Gemara does not address the case of worms found simultaneously in the flesh and in internal organs. Assuming that organisms can penetrate the intestinal wall, their presence in the digestive tract compromises the presumption that identical organisms found in the flesh of the fish could not have been spawned outside the fish. Thus, as has been discussed earlier, the many authorities who refuse to sanction consumption of Anisakis-infested fish arrive at that position because they assume, as a matter of course, that all organisms present simultaneously in the viscera and the flesh are forbidden. Their opponents begin with a conflicting premise: they assume that organisms found in the flesh are permitted even when similar organisms are also present in the internal organs.",
+ "The assumption that organisms found in the flesh are always permitted and the antecedent premise that parasites cannot migrate from the viscera to the flesh are based upon a textual inference. Writing in 1957, R. Yechezkel Roth, Emek ha-Teshuvah, IV, no. 57, dismissed the possibility that parasites may penetrate the flesh of a fish on the basis of the blanket talmudic ruling declaring that all insects found in the flesh are permitted. In the immediately following responsum, no. 58, his son, R. Yitzchak Roth, presents a wide-ranging discussion of when such global talmudic statements may be regarded simply as generalizations admitting of at least rare exceptions and when they must be understood literally. Rabbi Roth asserts that there can be no universal statement of such nature that admits of an exception if erroneous application of the generalization would lead to transgression. Consequently, he concludes, the generalization could have been enunciated only if it is to be applied literally without exception.",
+ "That argument is misplaced for the simple reason that the alleged universal proposition is not talmudic in origin but is first formulated by Shulḥan Arukh, Yoreh De'ah 84:16. Moreover, as pointed out by R. Moshe Eliezer Bloom, Or Yisra'el, no. 56, p. 47, the citation of Shulḥan Arukh's statement is misconstrued. Shulḥan Arukh rules, \"All worms found in an animal, whether between the hide and the flesh or in its viscera, are forbidden. Those found in fish: in the viscera, they are forbidden; between the skin and the flesh or in the flesh, they are permitted.\" Shulḥan Arukh's global statement is made only with regard to animals. The word \"kol,\" meaning \"all,\" is noticeably absent in the portion of the ruling dealing with fish. It is certainly possible that the same generalization was intended; it is equally possible that it was not. The phraseology is simply ambiguous.",
+ "Shevet ha-Levi explains the terminology employed by Shulḥan Arukh in a somewhat different manner. Shevet ha-Levi perceives no contradiction whatsoever between scientific findings and the discussion of the Gemara, Hullin 67b. He cites Me'iri in asserting that \"darna\" permitted by the Gemara is the name of a particular species known to the Sages. Since only that species is capable of generating worms in its flesh while yet alive, and since we cannot identify the darna, we must regard all fish infested by parasites as forbidden. Consequently, asserts Shevet ha-Levi, there is no controversy between Rambam and other early-day authorities, nor does Rambam contradict the Gemara in any way. Rambam, he explains, rules that worms found in a living fish are forbidden simply because we cannot identify the darna. Rambam does permit worms found in a dead fish but is careful to describe them as permissible when they \"sprout before us\" (hitli'ah le-faneinu) because only under those circumstances can worms be assumed to be generated by decaying tissue.",
+ "Shevet ha-Levi fully conceded that Tur and Shulḥan Arukh, in positing a general rule with regard to all marine species, disagree with regard to this point. Those authorities maintain that the rule is not limited to a specific species but is general in nature. However, Shevet ha-Levi asserts that the controversy is only with regard to the assumption that pertains in the generality of cases \"but all agree that the opposite also exists,\" viz., species whose flesh certainly does not generate parasites and, consequently, any parasite found in such fish must have originated elsewhere. In his original discussion in 5751, Shevet ha-Levi ruled that, if the scientific evidence is corroborated, infested sable may not be consumed.",
+ "It seems to this writer that the assertion that parasites are capable of migrating from the internal organs to the flesh of the fish is supported by the discussion recorded by the Gemara, Hullin 67b. The Gemara begins its discussion by citing a dictum of Rav Shisha the son of Rav Idi to the effect that \"kuki'ani\" are forbidden because they originate outside the organism in which they are found. Rav Ashi rejects that view because, if that were the case, similar creatures should be found in the excretory organs as well. The Gemara later concludes that such creatures are forbidden because they might have entered through the nostrils while the animal was asleep. Hence, as both Rashi and Tosafot indicate, they are forbidden even if found in the liver or in the lungs and their absence in the excretory organs is of no significance. However, the Gemara, at the initial stage of its discussion, had no problem accepting the proposition that worms are forbidden—apparently at whatever site they may be found—provided they are also present in the viscera; an explanation of how such creatures found their way into the fish from outside the animal becomes necessary only if they are not also present in the excretory organs. That premise is not at all rejected. In a second version of that exchange recorded by the Gemara, Rav Shisha the son of Rav Idi declared \"kuki'ani\" to be permissible because they are generated by their host. To that assertion, Rav Ashi responded by saying, \"Obviously, for, if they came from outside, they should be found in the excretory organs.\" Again, the clear inference is that, if the same species of insect is indeed found in the digestive system in addition to being found in the flesh, the creatures found in the flesh are also forbidden because of the strong possibility that they migrated to the flesh from the viscera.",
+ "It is at least theoretically possible to construct a crucial experiment having the potential to demonstrate that the hypothesis Rabbi Roth, Or Yisra'el, no. 57, p. 151, ascribes to the Sages, viz., that parasites cannot migrate from the viscera to the flesh, is fallacious. A quantity of farm-grown fish might be introduced into a tank of parasite-free water. It is probably possible to modify parasites genetically so that they acquire a distinctive color as has been done with various species of fish. Those genetically modified parasites would then be introduced into the tank. If, upon harvesting the fish, only such genetically modified parasites are found in the flesh of the fish, it would defy credulity to believe that those parasites arose from the flesh rather than from the water. Less dramatic, but far simpler and only slightly less convincing, would be an experiment requiring no more than a DNA analysis of the parasites introduced into the tank containing the fish and a subsequent DNA analysis of the parasites later found in the flesh of those fish. DNA evidence would serve to establish whether the parasites found in the flesh are genetically descended from the parasites originally placed in the water or whether they are indeed unrelated to those parasites.",
+ "V. Subvisual Organisms",
+ "As will subsequently be explained, subvisual organisms, i.e., creatures that cannot be perceived by the naked eye, are not prohibited. It may be argued that parasites that enter the intestinal tract of the fish when they have not yet reached a state of development at which they are visible should be permitted even if they migrate to the flesh of the fish while yet in that early stage of development and grow in size. R. Pesach Eliyahu Falk, Madrikh le-Bedikat Tola'im: Guide to the Inspection of Fruits and Vegetables for Insects (Gateshead, 5744), p. 92, contends that, if no cognizance is taken of them in a subvisual state, their juridical identity is established at the time at which they do become perceivable. If so, their development within the fish should, arguably, give them the status of worms generated by the fish itself. Accordingly, parasites known to have spawned outside of the fish are permitted when found in the flesh of the fish because they acquire the halakhic identity of the host fish at the time at which they become visible.",
+ "Nevertheless, it is not at all clear that this is so if the parasites develop in the intestinal tract before migrating to other parts of the fish. Worms found in the flesh are permitted because, since they feed upon the flesh, they are deemed to have been produced by the fish itself. Worms or parasites that develop in the intestinal tract presumably are nourished, not by the flesh of the fish, but by nutrients ingested by the fish and hence should have the same prohibited status as worms that originate outside the body of the fish.",
+ "More fundamentally, R. Nathan Gestetner, Le-Horot Natan, IX, no. 25, sec. 14, disputes the basic contention that the status of the parasite is determined by its location at the time it becomes visible. Le-Horot Natan asserts that, even if the parasite is subvisual at the time it migrates to the flesh of the fish, upon becoming visual it acquires the status of a prohibited creature. Le-Horot Natan argues that the reason certain worms are permitted is because, as stated by the Gemara, they are produced by the flesh of the fish. In effect, the worm and the fish are considered to be a single entity. Accordingly, although microscopic larvae are themselves not forbidden, the development of parasites from such larvae cannot be attributed to the flesh of the fish and it is only a worm whose genesis can be ascribed to the fish that may be deemed to have the status of the host. Hence, the genesis of the parasite must be ascribed to its actual progenitor even if in the earliest stage of its development it is infinitesimally small and hence not halakhically cognized.",
+ "In support of that thesis, Le-Horot Natan cites Hazon Ish, Yoreh De'ah 14:1, secs. 10 and 12, with regard to a parallel rule regarding the permissibility of creatures that spawn in \"vessels.\" Hazon Ish comments that the rule applies \"only when the hylic power of the water generates them.\" However, if an adult creature excreted eggs in the utensil, the organism that develops from such eggs is forbidden. That is so despite the fact that such individual eggs deposited in the utensil are certainly not visible to the naked eye.",
+ "A similar argument is advanced by Rabbi Klein, Or Yisra'el, no. 61, p. 35. Rabbi Klein asserts that the principle with regard to subvisual creatures is simply an expression of the principle \"The Torah was not given to ministering angels\" (Berakhot 28b) and means only that such an organism cannot be prohibited if it cannot be perceived, but does not imply that such existence is to be ignored. Accordingly, if such creatures are known to have \"swarmed,\" even if such swarming took place while they were as yet not perceivable, those organisms are prohibited when they do become visible. Rabbi Klein reports that both R. Joseph Shalom Eliashiv and R. Samuel Woszner concur in that conclusion.",
+ "As evidence in support of that position, Rabbi Klein cites R. Jonathan Eibeschutz, Kereti u-Peleti, Peleti, Yoreh De'ah 84:5. Shulḥan Arukh, Yoreh De'ah 84:6, rules that a worm found in a fruit that has not been plucked, and hence is still attached to the ground, is forbidden provided that the worm has \"crept\" within the fruit. Since the fruit is still attached to the ground, the worm is regarded as having \"swarmed\" on the ground. Nevertheless, Shulḥan Arukh, loc. cit., rules that similar worms found under the skin of \"beans and peas\" are permitted because, due to the confining nature of the space in which they thrive, there is no room for them to \"swarm.\"",
+ "Kereti u-Peleti explains that when such a worm comes into existence it is so infinitesimally small that \"no eye can perceive it.\" At that early stage of its development the worm is capable of at least minimal movement within the host fruit. Hence, according to Kereti u-Peleti, locomotion by a \"swarming creature\" while it is yet subvisual renders the organism a prohibited creature when it does mature and becomes visible.",
+ "At issue is the nature of the principle that subclinical phenomena are to be disregarded. The concept can be understood in two distinct ways: 1) The Torah simply ignores any and all subclinical entities and phenomena and regards them as non-existent. That notion mirrors the reasoning of Resh Lakish, Yoma 73b, who maintains that a quantity of forbidden food less than the minimum for which statutory punishment is prescribed, is entirely permissible according to biblical law because, in effect, the Torah completely disregards its existence. 2) The phenomena are indeed recognized as real but, since the Torah was given to human beings rather than to angels, no mandate or stricture can be attendant upon such entities or phenomena unless and until there is perceivable evidence of such entity or occurrence. If all subvisual events are to be entirely ignored, the \"creeping\" of minuscule Anisakis is of no moment. If, however, subclinical phenomena are ignored only until there is clinical evidence of their occurrence, the \"creeping\" of the Anisakis, while yet microscopic, renders it a \"swarming creature\" at least at such time as it becomes visually perceivable.",
+ "An ostensively even stronger argument is formulated by Rabbi Halberstam, Ve-Anokhi Tola'at, p. 11, and by R. Ephraim Fishel Siegal, Or Yisra'el, no. 61, pp. 71-72. They contend that, even if minuscule creatures are not halakhically cognized, and, as Rabbi Falk argues, the species identity of such creatures is established at the time it becomes discernible to the naked eye, the Anisakis should nevertheless be forbidden. An Anisakis that reaches such a stage of development within crustaceans should be regarded either as a yozei of a forbidden fish or as having acquired the identity of the species of fish of which its host is a member. Consistent with that assessment, Minḥat Hinnukh, no. 163, declares that, although worms that develop in the flesh of a dead animal are not prohibited as the yozei of a limb of a living animal, nevertheless, if the animal is a member of a non-kosher species, such worms are forbidden by virtue of the prohibition against eating the flesh of a non-kosher animal. That ruling is recorded by Darkei Teshuvah 84:177.",
+ "However, as stated earlier, worms that develop within flesh of the fish are regarded as the product of the fish because they are generated by, and feed upon, the flesh in which they are embedded. Parasites developing in the digestive tract of a non-kosher fish might be regarded as the product of partially digested food found within those organs, but not of the non-kosher fish or crustacean.",
+ "Moreover, and most significantly, it does not appear to be the case that the Anisakis are imbibed by krill only as subvisual larvae. The larvae are reported to be no smaller than 200 microns long and 14 microns wide. R. Moshe Viya, Bedikat Mazon ke-Halakhah, I, sha'ar sheni, chap. 2, note 6, reports that researchers in ophthalmology have established that an object five microns long and one-half micron wide can be seen at a distance of twenty-five centimeters by a person with normal vision. If krill ingest already perceivable Anisakis, the argument for declaring such parasites permissible is entirely undermined.",
+ "VI. Scientific Evidence",
+ "The reasoning advanced by the Gemara, Hullin 67b, in permitting worms found between the skin and the flesh, viz., \"they are generated from it,\" certainly appears to reflect reliance upon a notion of spontaneous generation. Whether that statement is to be understood literally and, if so, whether rejection of that concept by modern science has any bearing upon Halakhah, or whether the Gemara's statement should be understood as expressing a concept that is compatible with contemporary scientific theory are intriguing questions. Resolution of those questions is, however, irrelevant to the points that have been made herein. Those points are entirely compatible with even the most literal reading of the text and do not at all entail the slightest negation of any empirical presumption made by the Sages. Moreover, if the notion of spontaneous generation is rejected and the various theories advanced to reconcile the apparently contradictory talmudic statements with contemporary science are rejected, the resulting conclusion that, contra unequivocal dicta and precedents spanning more than two millennia, all worms and piscatorial parasites found in the flesh of fish are forbidden is compelled. To date, no rabbinic scholar has espoused such a conclusion with regard to piscatorial parasites. To be sure, some protagonists in the modern-day controversies have been accused of harboring such predilections and certainly of rejecting talmudic teachings in favor of fidelity to science. Those charges have been vigorously and vehemently denied. A fair reading of the published material exposes such charges as spurious. The authorities who prohibit consumption of fish infested with Anisakis assert simply that the Sages never claimed that all \"creeping things\" found in the flesh of animals or fish are spontaneously generated. Hence, in situations in which there is evidence to the contrary, such organisms must be regarded as forbidden.",
+ "Rabbi Revach strongly insists that his conclusions are in no way predicated upon reports of scientists who reject the possibility of spontaneous generation but are based upon his own observations of the Anisakis at various stages of development, many of which he has recorded photographically. Similarly, Rabbi Halberstam, Ve-Anokhi Tola'at, pp. 5-7, emphasizes that the available scientific information regarding Anisakis is not based upon denial of the possibility of spontaneous generation on the part of scientists but upon empirical observation. Unlike those of many parasites, the eggs of Anisakis do not survive within a predator; Anisakis survive within the body of their host only if imbibed as larvae. Hence it is not necessary to deny the phenomenon of spontaneous generation of other aquatic organisms while negating such a possibility with regard to Anisakis.",
+ "More significantly, Anisakis have never been observed in the flesh of a fish other than when Anisakis have also been found to be present in its digestive system. Since the Anisakis found in the digestive tract certainly originate outside of the fish, it is logical to conclude that creatures of the same species found in the flesh of the fish share a common origin and were also spawned outside the fish. Photographs have been taken showing individual Anisakis partially within the intestine and partially within the flesh of the host. That phenomenon establishes that, at least after the death of its host, the Anisakis is capable of migrating from the digestive tract into the flesh of the fish. Since that is a distinct possibility, even were Anisakis to be found solely in the flesh, it cannot be claimed with certainty that those organisms did not also migrate from the digestive tract.",
+ "Rabbi Roth, Or Yisra'el, no. 57, p. 151, counters that, on the basis of the statements of the Gemara, one must conclude that Anisakis never migrate from viscera to flesh and, accordingly, those found within internal organs are forbidden, whereas those found in the flesh of the same fish are permitted because they must have been generated by the flesh itself.",
+ "As recorded in Shevet ha-Levi, IV, Yoreh De'ah, no. 83, Rabbi Woszner's interlocutor, R. Shmu'el Shmelka Friedman, dayyan of the Pupa community and one of the halakhic authorities of the Central Congress of American Rabbis (Hitachdut ha-Rabbanim), advanced an interesting argument designed to render the scientific evidence moot. Rabbi Friedman assumed that larvae do not emerge from the eggs of the parasite until they are swallowed by shrimp. Since shrimp are swallowed whole by sable, the parasites never become organisms that \"creep in the waters;\" rather, their life cycle unfolds wholly within marine organisms.",
+ "Shevet ha-Levi regards that argument as unfounded. The same basic principles apply with regard to insect-infested fruit, i.e., an insect that develops wholly within a fruit is permissible but becomes forbidden when it emerges and \"creeps upon the earth.\" The Gemara questions the permissibility of an insect that bores its way \"from one date to another date,\" i.e., out of one plucked fruit and into another immediately touching fruit. In effect, the question is whether the insect is forbidden only if, at the minimum it becomes exposed to the atmosphere or whether it lacks the status of a creature that \"creeps upon the earth\" as long as it remains inside a fruit even if that particular fruit is not the organism's progenitor. The situation with regard to the parasite found in sable is the same: the parasite travels from one fish, viz., the shrimp, to another, viz., the sable, without exiting the body of a marine species. The question with regard to infested fruit is left unresolved by the Gemara. Since the status of such creatures remains doubtful, they are forbidden. The same principle, concludes Shevet ha-Levi, applies to marine parasites as well. Moreover, argues Shevet ha-Levi, the Gemara expresses doubt only with regard to a creature that passes (piresh) \"from one date to another date\" in which the host fruits share a common identity as members of a particular species. There is no indication of a similar doubt in a situation in which an already recognizable creature passes from one species to another, e.g., from a date to a fig or from a shrimp to a sable.",
+ "Moreover, since the eggs hatch in the water to release free-swimming larvae, the larvae consumed by the shrimp acquire the status of organisms that \"swarm in the water\" before being ingested by the shrimp. This factual consideration renders the exchange between Rabbi Friedman and Shevet ha-Levi entirely moot.",
+ "Rabbi Friedman further argued that, although the fertilized egg of a land creature is forbidden, the fertilized egg of an aquatic creature is not forbidden until the hatchling is exposed to the natural elements. Shevet ha-Levi counters that such considerations are germane only with regard to the status of the fertilized egg itself but that once larvae emerge from the egg their status is that of the species of which they are members.",
+ "VII. Eggs of Parasites",
+ "By far the most engaging—and most novel—argument in support of ignoring the newly-presented realia regarding the life cycle of the problematic Anisakis parasites is formulated by R. Moshe Landau, Chief Rabbi of Bnei Brak, in a contribution to the Elul 5770 issue of the Israeli Torah journal Pa'amei Ya'akov. Insofar as factual issues are concerned, Rabbi Landau dismisses the contention that delay in processing the fish experienced in contemporary circumstances allows the ingested larvae to mature, to migrate from the stomach and to penetrate the flesh of the fish whereas in earlier times fish were immediately eviscerated and the larvae disposed of together with the entrails. Rabbi Landau asserts that herring, one of the species subject to parasite infestation, were always salted for extended periods of time and that the fish were placed in salt without prior removal of internal organs because those organs enhance the taste of the herring.",
+ "Rabbi Landau's halakhic argument is based upon one salient point. The survival of the parasites in question is attributed to the manner in which they are transferred from one aquatic species to another. Larger fish prey upon smaller fish infested with live parasites. The parasites deposit eggs in the intestines of the predator. Those eggs are excreted by the larger fish together with a glob of nutrients needed to sustain the larvae upon hatching. The vast majority of those eggs fall to the floor of the ocean and are destroyed. A small percent of the eggs are consumed by krill and hatch within the krill. The krill are then consumed by larger kosher fish and the parasites make their way into the flesh of the fish brought to market. Rabbi Landau focuses upon the fact that the eggs, prior to hatching, do not have the power of locomotion and hence cannot be categorized as creatures that \"creep in the water.\" His novel point is that the eggs of the parasite are not prohibited. Rabbi Landau notes that Sifra 4:12, as understood by Ra'avad, ad locum, establishes that secretions, skin and eggs of forbidden birds are prohibited on the basis of a pleonasm in the biblical text that records the biblical prohibition. But in a parallel statement, Sifra 4:8, according to Ra'avad, prohibits secretions of forbidden marine creatures lacking fins and scales but fails to include eggs within the ambit of that prohibition.",
+ "However, the statement of Sifra appears to be problematic. There is a general rule to the effect that any substance secreted by a forbidden creature (ha-yozei min ha-tame) is itself forbidden. If so, even absent a specific pleonasm, the eggs of all forbidden creatures, including eggs of marine parasites, would be forbidden. Rabbi Landau explains the need for a pleonasm as recorded in Sifra by citing Pri Hadash, Yoreh De'ah 103:1, and Teshuvot Ẓemaḥ Ẓedek, Yoreh De'ah, no. 63, sec. 3, who state that since insects and the like are repulsive they would not qualify as a \"food\" and hence would not be included in the category of forbidden species but for the fact that they are explicitly proscribed as a foodstuff despite their repugnance. That biblical prohibition, argues Rabbi Landau, applies only to the creeping creatures themselves. Since such creatures are inherently repugnant, the independent general prohibition against secretions emitted by forbidden creatures is not attendant upon creeping organisms. Hence, contends Rabbi Landau, since eggs are not enumerated by Sifra 4:8 as being explicitly prohibited, there is no basis to deem the eggs of insects and the like to be forbidden as the secretion of a forbidden creature.",
+ "Accordingly, argues Rabbi Landau, there is no reason to regard the parasites as forbidden until the eggs hatch as larvae and become organisms that \"creep in the water.\" But, asserts Rabbi Landau, Anisakis larvae emerge only within the body of the host fish. Hence, concludes Rabbi Landau, since at no time in the course of their development did the parasites \"creep in the water,\" there is no basis to prohibit them when found in kosher fish. The presence in the water of eggs from which the parasites develop is regarded by Rabbi Landau as inconsequential since the eggs are \"disgusting\" and hence are not a foodstuff.",
+ "R. Shmu'el Shmelka Friedman, Or Yisra'el, no. 61, p. 19, similarly asserts that a creature that has not actually \"swarmed\" in water is not forbidden. Rabbi Friedman regards the eggs of \"creeping creatures\" as permissible for a different reason. As explained in the Gemara, the eggs even of kosher fowl would be forbidden as yozei, i.e., as the product of a forbidden organ of a living creature, but for the fact that the Torah specifically permits consumption of eggs. As explained by Tosafot, Hullin 64a, the eggs of a member of a forbidden species would also have been included in that dispensation and are forbidden solely on the basis of a pleonasm. Since there is no similar pleonasm governing the status of eggs of insects, argues Rabbi Friedman, the prohibition of yozei does not apply; rather, the eggs of insects are included in the general exclusion of eggs from the prohibition of yozei.",
+ "However, the facts as presented in the scientific literature are somewhat at variance from the scenario described by Rabbi Landau. Rabbi Landau speaks of the deposit of \"eggs\" in the sea and the ingestion of the \"eggs\" of the parasite by krill. It appears that, as has been explained earlier, at least at the time of ingestion by krill, the nascent creatures are not eggs but have already hatched as larvae. Presumably, Rabbi Landau would counter that since larvae do not have the power of locomotion and do not \"swarm in the water\" their status is indistinguishable from the status of eggs. But that, too, is contrafactual. As noted earlier, larvae are animated and do propel themselves in the water. Indeed, some scientists theorize that it is the wriggling in the water that attracts the krill.",
+ "The novel points in Rabbi Landau's thesis are: 1) eggs of \"swarming\" creatures are not prohibited; and 2) organisms not yet capable of independent locomotion are not \"creeping things\" and hence are no different from \"eggs\" for halakhic purposes.",
+ "There are yet other grounds to argue that larvae and \"swarming creatures\" hatched from eggs are not included in the category of yozei. The Gemara, Temurah 31a, declares that the prohibition of yozei is not attendant upon a bird hatched from an egg because the egg turns to mere \"dust\" before the embryo develops. The same principle would apply to fish hatched from eggs.",
+ "Arguably, it is possible to accept Rabbi Landau's second assertion maintaining that the Anisakis is not forbidden because it does not \"swarm in the water\" and to apply it in practice without also accepting his primary thesis establishing that the restrictions regarding yozei do not apply to eggs or larvae of such species. Developing that argument, however, requires reformulating Rabbi Landau's thesis by predicating it upon an entirely different premise.",
+ "In comments published in Hiddushei ha-Graḥ al ha-Shas, ed. Y. Cohen (Jerusalem, 5729), Hullin 67a, the Brisker Rav, R. Yitzchak Ze'ev Soloveitchik, is quoted as espousing the position that, although identity as a member of a forbidden animal species is established by progenital relationship without regard to the presence or absence in the progeny of the anatomical criteria enumerated by Scripture, that is not the case with regard to sherazim or \"swarming things.\" The Brisker Rav observes that Scripture neither names species forbidden as \"creeping things\" nor does it spell out identifying criteria. The prohibition is couched simply in the phrase \"all swarming things that swarm upon the earth you shall not eat\" (Leviticus 11:42). Accordingly, he argues, the fact that the organism \"swarms\" is the determining factor in establishing the prohibited nature of such a creature.",
+ "In establishing that thesis, the Brisker Rav cites an intriguing rule recorded by Rambam, Hilkhot Ma'akhalot Assurot 3:8. A single creature may be thrice prohibited, namely as 1) a swarming land creature, 2) a swarming aquatic creature and 3) a swarming flying creature. Since consumption of creatures that creep on land, swarm in water and those that fly are each prohibited by a separate negative commandment, Rambam, Hilkhot Ma'akhalot Assurot 2:23, rules that a person who consumes a land creature that reproduces in bodies of water and also sprouts wings is punished by having the statutory number of stripes administered three times. Rambam, Hilkhot Ma'akhalot Assurot 3:8, further rules that a person who consumes an unhatched bird incurs punishment for violation of the prohibition against consuming \"winged swarming things that go upon all fours\" (Leviticus 11:20). Even though, if eaten only upon hatching, punishment incurred in eating such a creature would be for consuming an \"unclean bird,\" nevertheless, while yet in the egg, its appearance is that of a \"swarming\" creature and punishment is for consuming a \"winged swarming thing.\"",
+ "Thus, although R. Chaim Soloveitchik is quoted as having famously declared, \"A horse is a horse, not because it is a horse, but because its mother was a horse,\" nevertheless, a \"swarming thing\" is a \"swarming thing\" because it itself creeps and hence, arguably, only if it actually creeps. If so, as Rabbi Landau has argued, a creature acquires the status of one that \"swarms in the water\" only if it actually \"swarms\" in the water— but not if it \"swarms\" only within a host fish.",
+ "It is possible that the Brisker Rav would concede that the secretions— and even the eggs of—a creature that \"swarms in the water\" are forbidden as yozei, but would maintain that only when the egg metamorphasizes into an independently animated creature is its status dependent upon whether or not it \"swarms.\" Alternatively, it is conceivable that the Brisker Rav might concur in the thesis that, in banning only a creature having the appearance of a \"swarming thing,\" the Torah has obviated the stricture regarding yozei with regard to \"swarming things.\" Of course, the objection that the larvae themselves, as distinct from eggs, are \"swarming things\" remains cogent.",
+ "Nevertheless, this conclusion, as well as that of Rabbi Landau, appears to be incorrect. In the above-cited ruling of Rambam, Hilkhot Ma'akhalot Assurot 3:8, regarding an unhatched embryo endowed with wings, Rambam rules that the unhatched embryo of a forbidden bird possessing wings is a sherez ha-of, i.e., a swarming bird-creature. That prohibition attaches to the unhatched creature despite the fact that its wings were never used and it never engaged in flight. It might be countered that, despite the grammatical identity of the two phrases, the phrase \"mi-kol sherez hamayim\"(Leviticus 11:10) translates literally as \"of all that swarms in water\" while kol sherez ha-of (Leviticus 10:20) should be translated as \"all of the swarming birds,\" i.e., creatures having capacity for flight but not necessarily creatures that have flown. More likely, in both the case of a sherez ha-of and in the case of a sherez ha-mayim, it is the \"to'ar\" (to use the terminology of the Brisker Rav), i.e., the appearance or physical characteristics of the creature that are determinative rather than the actual performance of the activity common to such creatures. Hence, any organism having the appearance of a creature that \"swarms in water\" would be prohibited even if that creature has not actually swarmed in water.",
+ "Moreover, the Gemara, in telling us that worms found between the skin and the flesh are permissible because they are generated by the fish itself, seems to negate the notion that only creatures that actually swarm in the water are forbidden. Were that the case, creatures originating within the fish itself would be permitted because of that reason—a reason more fundamental and more inclusive than the reason actually advanced by the Gemara, i.e., that they are generated from the flesh of the fish.",
+ "VIII. Examination for Parasites",
+ "Despite his strong insistence that the creatures found in many species of fish are forbidden, Rabbi Karp, Or Yisra'el, no. 61, pp. 38-48, rules permissively with regard to consumption of herring without examination. Rabbi Karp reports that initial examination of sample quantities of herring yielded no parasites but that a second examination found thirty percent of whole herring to be infested. He quite plausibly attributes the disparity to the fact that the second examination was conducted by use of an electric light-box or blue light. That type of examination is not possible for the ordinary consumer.",
+ "The crucial consideration is that a clear majority of the fish in question are free of infestation. Nevertheless, presence of insects in a significant minority of fish, a mi'ut ha-mazui, does necessitate examination by virtue of rabbinic decree. Rashba, Hullin 9b and Torat ha-Bayit he-Arukh, bayit sheni, sha'ar shlishi, followed by Pri Megadim, Yoreh De'ah 39:introduction, and idem, Siftei Da'at 39:2, explain that the Sages required such examination because failure to do so is comparable \"to averting one's eyes from that which is forbidden.\" Despite the clear presence of infestation in a significant minority of fish, Rabbi Karp finds examination of the fish in question to be unnecessary for a number of reasons:",
+ "1. As has been shown earlier, insects found even in the intestines of a fish are forbidden only because of doubt with regard to their origin. Although this view is disputed by Mishkenot Ya'akov, Yoreh De'ah, no. 17, Teshuvot Bet Efrayim, Yoreh De'ah, no. 6, rules that there is no requirement to examine for the presence of something that is only doubtfully prohibited. R. Shalom Mordecai Schwadron, Da'at Torah, Yoreh De'ah 39:introduction, sec. 1 and Kanfei Yonah 31 concur in that opinion.
2. In line with Rashba's explanation that examination is required because failure to examine is tantamount to \"averting one's eyes,\" Rabbi Karp contends that the concept of \"a significant minority\" applies only to a minority that, if actually present, is likely to be discerned in the normal course of eating the possibly infested foodstuff. The parasites within the fish in question, even if present, will never be perceived by a person eating the fish.
3. R. Shlomoh Kluger, Teshuvot Tuv Ta'am va-Da'at, Mahadura Tinyana, Kuntres Aḥaron, no. 53, maintains that since, as Rashba declares, the obligation to conduct an examination is because failure to do so is tantamount \"to averting one's eyes,\" there is no obligation to search for such creatures with a magnifying glass even though, when discerned, they can be perceived with the naked eye. His position is that, although averting one's eyes is forbidden, it is not necessary to actively enhance the possibility of discerning the presence of such creatures.
4. When examination for the presence of a mi'ut ha-mazui is not possible, no examination is required. Pri Megadim, Yoreh De'ah 39:introduction and Tevu'ot Shor 1:3, rule that examination that requires inordinate travail or inconvenience is similarly not required. Examination by means of a light-box or the like, argues Rabbi Karp, falls into that category.",
+ "Of course, none of those considerations apply in situations in which the majority of the suspected fish are known to be infested. Rabbi Karp, Or Yisra'el, no. 61, p. 47, considers such to be the case with regard to salmon and sole in particular.",
+ "R. Moshe Chaim Padwa of London, Or Yisra'el, no. 61, p. 15, finds grounds to permit eating doubtfully infested fish after they have been cooked. Taz, Yoreh De'ah 84:17, permitted consumption of baked foods containing raisins that might have been contaminated by ants on the basis of a sefek sefeika or \"double doubt\": 1) the presence of ants in the raisins was doubtful; 2) even if present, the ants may have been crushed in preparing the dough and hence been nullified in the much larger quantity of flour and other ingredients. However, Nekudat ha-Kesef, loc. cit., disagrees and maintains that a safek ha-ragil, i.e., doubt with regard to a forbidden substance the presence of which is \"usual,\" does not qualify as a \"doubt\" for this purpose. As stated by Shakh, Yoreh De'ah 84:29, that is the case when infestation is known to have occurred in such environs. Pri Megadim, Mishbezot Zahav 84:16, comments that one should not protest if a lenient ruling has been issued in such a case in an instance of \"great loss and enjoyment of Yom Tov.\"",
+ "IX. Concluding Observations",
+ "The Anisakis controversy is born of a confrontation between the principles governing nature accepted by the Sages and the conclusions of contemporary science. In other instances of such conflict, e.g., spontaneous generation of \"kinim\" versus sexual reproduction, methodology for resolving the confrontation requires that we either a) reject the findings of science as false; b) assert that Halakhah as transmitted by Moses at Sinai is predicated upon real or perceived reality at that time; c) redefine the relevant talmudic statements as references to extinct or otherwise unobservable entities or phenomena; or d) redefine the talmudic concepts in a manner that renders them non-literal.",
+ "Application of these diverse methods to resolution of the Anisakis problem yields diverse results. The Gemara declares organisms found within the flesh of fish to be permissible because they are not generated outside the muscle tissue. That claim is difficult to maintain when identical organisms are also present in the digestive organs, particularly when the walls of those organs are punctured (presumably by the organisms present in the digestive tract) and the punctures are large enough to accommodate migration of those organisms. Nor is it possible to assert that the talmudic statements reflect the reality of antiquity since the talmudic discussion focuses on empirical evidence employed to determine whether the worms in question were generated outside the fish. Hence those who permit the Anisakis found in the flesh of fish are forced to ascribe the genesis of those organisms to spontaneous generation no matter how implausible that conclusion may be.",
+ "Assertion that nature has changed and that either present-day products of spontaneous generation constitute a null class or that they are unidentifiable by us would yield a diametrically opposed position. The result would be acceptance of the conclusion that all aquatic organisms presently found in any area of the fish are forbidden.",
+ "Those who forbid Anisakis and similar parasites but not other organisms assess the talmudic statements in one of two ways. Some limit the relevant talmudic presumption to organisms with regard to which there is no compelling evidence disproving the possibility of spontaneous generation and prohibit only species found both in the viscera and flesh but accept the talmudic statements as presumptive and hence controlling only where there is no compelling evidence to the contrary. They do not regard the relevant talmudic statements as universal and irrebuttable and, consequently, their conclusion prohibiting Anisakis and permitting other species is not inconsistent.",
+ "Other authorities redefine the underlying talmudic principle, not as enunciating a principle of spontaneous generation, but as a declaration that subvisual phenomena are to be disregarded. Upon redefinition of the principle, the application involves no inconsistency or difficulty whatsoever. Any and all organisms imbibed at a stage at which they can be perceived by the naked eye are forbidden. Those imbibed while not yet visible and found in the flesh of the fish, since they have no prior juridical identity, are treated as having been generated by the fish itself. Those found in the digestive tract, even if imbibed in a subvisual state, do not develop by parasitic feeding upon the flesh of the host but appropriate to themselves nutrients eaten by the fish that are found in the digestive organs and hence are treated no differently from organisms that feed in the water outside the fish.",
+ "In the opinion of this writer, the halakhic arguments of those who prohibit Anisakis-infested fish are compelling. Moreover, their resolution of the underlying confrontation serves to affirm the veracity of talmudic teaching without ignoring empirical reality and does so in a manner that is intellectually consistent."
+ ],
+ "Chapter 9 Is the Milk We Drink Kosher": [
+ "He who commanded and admonished regarding treifah commanded us to rely on rov.",
+ "TESHUVOT HATAM SOFER, ORAH HAYYIM, no. 83",
+ "I. The Problem",
+ "The Gemara, Bekhorot 6b, establishes that it is forbidden to drink the milk of a non-kosher animal. That prohibition applies not only to the milk of members of non-kosher species but also to the milk of an animal of a kosher species that has become a treifah, i.e., an animal that has either suffered a perforation of a particular organ or that manifests any one of a number of anatomical anomalies. The perforation and anomalies that render an animal a treifah are enumerated by the Gemara, Hullin 42a, and catalogued by Rambam, Hilkhot Sheḥitah 10:9.",
+ "Determining with perfect certainty that any particular animal is not a treifah would require a laborious and time-consuming post-mortem examination. Indeed, since perforation of the major portion of the trachea or even a minute hole in the esophagus renders an animal a treifah, it is impossible to make an absolute determination that the animal is not a treifah because, in an otherwise kosher animal, the perforation may be masked by the slaughterer's incision. The Gemara, Hullin 11a, determines that no such anatomical examination is necessary. Instead, the Gemara declares that the rabbinic rendition of the verse \"according to the majority to determine\" (Exodus 23:2) serves to establish the principle of rov, or \"majority.\" The principle of rov establishes that, given the existence of a major set and of a minor set, each set containing entities of a single species but of differing halakhic status, one may assume that any unexamined entity within that species is a member of the major set. Applied to the kashrut status of any unexamined animal, the principle of rov serves to establish that the animal in question is not a treifah: The majority of animals are not treifot and hence constitute the major set. Therefore, despite the existence of a minor set comprised of animals that are treifot, any slaughtered animal must be assumed to belong to the major set of non-treifah animals. Hence the meat of an unexamined animal—and its milk while the animal is yet alive—may be consumed by reason of reliance upon the principle of rov.",
+ "Nevertheless, despite the principle of rov, by virtue of rabbinic decree, one is required to examine for the presence of any factor that might render the animal or foodstuff impermissible if the magnitude of the minor set rises to the level of a mi'ut ha-mazui, i.e., \"a frequently encountered minority.\" Hence, since adhesions symptomatic of an underlying perforation (or a degeneration of tissue that would culminate in a perforation) are quite common, rabbinic law decrees that the lungs of slaughtered animals must be examined in order to confirm the absence of disqualifying adhesions. Similarly, flour, rice and fruit or the like need not ordinarily be examined for insect infestation since the majority of such foods are free of insects. However, if the percentage of such foodstuff known to be infested constitutes a mi'ut ha-mazui all samples of that species must be examined for insects.",
+ "The definition of a mi'ut ha-mazui is a matter of significant controversy. An early-day authority, Teshuvot Rivash, no. 131, defines mi'ut hamazui as \"close\" to fifty percent. At the other extreme, some contemporary authorities regard even five percent, or possibly four percent, as \"a mi'ut ha-mazui.\" The most widely cited position is that of R. Jacob of Karlin, Teshuvot Mishkenot Ya'akov, Yoreh De'ah, no. 17. Mishkenot Ya'akov adduces talmudic evidence suggesting that examination is required in circumstances in which the incidence of concern is higher than ten percent. Since there is no evidence that a lower incidence was also regarded as a mi'ut ha-mazui triggering a requirement for examination, Mishkenot Ya'akov regards ten percent as the threshold level of mi'ut ha-mazui.",
+ "Thus, were it to be established that a certain anomaly rendering an animal a treifah is prevalent in a particular locale to a degree greater than the threshold level of a mi'ut ha-mazui, it would be necessary to examine every suspect animal in order to establish the absence of that anomaly. For example, some years ago, in Israel, Newcastle's disease became widespread among poultry with the result that many rabbinic authorities required examination of fowl for the presence of anomalies caused by that disease.",
+ "The rule requiring examination for a mi'ut ha-mazui is limited to situations in which such examination is feasible. Thus, if the lungs are lost or misplaced before the requisite examination has been carried out the meat of the animal may nevertheless be eaten, at least in situations in which declaring the animal a treifah would result in a significant financial loss, in reliance upon the principle that the animal may be judged to be a member of the major set of non-treifot. It is precisely because examination of the lungs of a living animal is impossible that it is permissible to drink the milk of an unexamined animal of a kosher species.",
+ "In days gone by, when milk for home consumption was obtained from a single cow or from a handful of cows, the applicability of the principle of rov was obvious. Even though, statistically, some animals certainly were treifot, there was no reason not to apply the principle of rov to the animal milked and hence no reason to challenge the kashrut of the milk produced by the cow. In the modern age, commercial dairies collect milk from, literally, hundreds of cows. Milk from all those cows is combined, pasteurized and then bottled. Statistically, since a mi'ut ha-mazui of dairy cows are indeed treifot, it is virtually certain that milk bottled in a dairy contains an admixture of non-kosher milk. The percentage of non-kosher milk processed in a dairy is proportionate to the percentage of non-kosher cows in the dairy herd or herds from which the milk is collected. Thus, if, for example, milk in a specific dairy is collected from one hundred cows and if, statistically, the minority of cows known to be treifot is ten percent, ten of those cows may be presumed to be treifot and the milk produced by those cows is likewise non-kosher.",
+ "The probability that at least two of the cows are treifot is far greater than the probability that the percent of treifot in the sample is as great as the percent of treifot among all cows.",
+ "Hence, since the milk of all cows in the herd is combined in the processing procedure with the result that non-kosher milk is diffused proportionately in kosher milk, ten percent of the milk in any milk container is non-kosher. Ten percent is much higher than the sixty to one ratio of kosher to non-kosher ingredients required for nullification of a non-kosher foodstuff. Indeed, since forbidden foodstuffs present in concentration greater than one in sixty, or 1.67 percent, are not subject to nullification, were the percentage of treifot determined to be as low as two percent the identical problem would exist.",
+ "The problem was first presented in print by R. Gavriel Yehudah Illowitz in a contribution to a Torah journal published by the Karlin-Stolin community, Kovez Bet Aharon ve-Yisra'el, (no. 104), vol. 14, no. 2 (Tevet 5763) and republished anonymously in an Israeli journal published in Kiryat Sanz, Ha-Be'er (no. 21-22), vol. 4, no. 3-4 (Adar-Nisan 5763). A series of responses, each seeking to establish the permissibility of the milk in question, was published in Kovez Bet Aharon ve-Yisra'el (no. 106), vol. 18, no. 4 (Nisan-Iyar 5763) and (no. 108), vol. 18, no. 6 (Av-Elul 5763) as well as in Ha-Be'er (no. 21-22), vol. 4, no. 3-4 (Nisan 5763), (no. 23) vol. 5, no. 1 (Tishri 5764), and (no. 24) vol. 5, no. 2 (Adar 5764). A rejoinder by Rabbi Illowitz affirming his earlier negative view was published in Kovez Bet Aharon ve-Yisra'el (no. 107), vol. 18, no. 5 (Sivan-Tammuz 5763). An additional response in support of the negative view authored by R. Judah Moskowitz appeared in Ha-Be'er (no. 23), vol. 5, no. 1 (Tishri 5764). The authors of the articles expressing a permissive view are R. Zalman Nehemiah Goldberg, R. Asher Weiss, R. Levi Yitzchak Halperin, R. Menasheh Klein, R. Asher Ze'ev Schreiber, R. Gavriel Yudewitz and R. Yosef Meir Feldman. A similar permissive view is also expressed by R. Eliyahu Schlesinger, Bet Hillel (no. 15), vol. 4, no. 3 (Av 5763) and R. Dov Landau, Be-Netiv ha-Halav, I, 5963.",
+ "II. Does Halakhah Take Cognizance of Minor Sets?",
+ "The crucial issue in determining the kashrut status of commercially produced milk is whether the principle of rov serves to exclude any halakhic consideration of the existence of the minor set or whether the existence of the minor set is acknowledged but nevertheless disregarded as a matter of procedure. If the former is the case, the statistical probability of the presence of a minor set large enough to render nullification impossible need not be considered. If the latter is true, it follows that, when it is known that, statistically, significant representation of the minor set must occur, nullification is rendered impossible.",
+ "A. The Sources",
+ "1. Teshuvot Mishkenot Ya'akov",
+ "In support of his argument that statistical probability can serve to render the principle of nullification nugatory Rabbi Illowitz cites a comment of Teshuvot Mishkenot Ya'akov, Yoreh De'ah, no. 16. Mishkenot Ya'akov formulates the rather novel thesis that, although by talmudic times a significant minority of animals were treifot, in earlier times, i.e., during the Temple period, internal treifot were so extremely rare as to be virtually nonexistent. In establishing the validity of that assertion Mishkenot Ya'akov cites a statement of the Mishnah, Pesaḥim 64a. The Mishnah records that, in addition to sprinkling the blood of each paschal offering on the altar, R. Judah maintains that, after the slaughter of all individual sacrifices was completed, the priest filled a container with blood collected from the floor of the Temple and poured it upon the altar. The Gemara, Pesaḥim 65a, explains that R. Judah was concerned that, due to the pressure of the large number of paschal sacrifices, a priest might have inadvertently failed to sprinkle the blood of one or more of those animals. Since the pooled blood on the ground came from each of the sacrificed animals, pouring from a utensil in which blood from all paschal sacrifices had been mingled served to assure that some portion of the blood of each sacrificial animal reached the altar. Mishkenot Ya'akov questions the efficacy of that procedure: It is forbidden to sprinkle the blood of a treifah on the altar. Contrary to the majority view, R. Judah himself maintains that nullification is possible only through admixture with an entirely different substance; thus, for R. Judah, blood cannot be nullified even by admixture with copious quantities of other blood. Accordingly, objects Mishkenot Ya'akov, if, in actuality, even one of the sacrificed animals was a treifah, the expedient of pouring a cup of commingled blood should not have been permitted because of the prohibition against sprinkling the forbidden blood of a treifah. Therefore, deduces Mishkenot Ya'akov, in antiquity, there must have been no cause to fear that even a minority of the animals were treifot.",
+ "Rabbi Illowitz notes that Mishkenot Ya'akov himself recognized that the blood of the paschal sacrifices was sprinkled on the altar before examination of the lungs. Accordingly, he argues, if the import of the principle \"the majority of animals are kosher\"is that the statistical incidence of the minority need not be a matter of concern, Mishkenot Ya'akov's argument is entirely lacking in cogency: The statistical occurrence of treifot may have been no less than in later times, but, nevertheless, the principle serves to determine that each and every animal in question is a member of the major set. Accordingly, deduces Rabbi Illowitz, Mishkenot Ya'akov must have assumed as a matter of course that the statistical probability of the presence of a member of the minor set of treifot cannot be ignored. Only if that unstated premise is accepted, argues Rabbi Illowitz, does Mishkenot Ya'akov's argument acquire cogency.",
+ "In his contribution to the Tishri 5764 issue of Ha-Be'er, R. Asher Ze'ev Schreiber deftly refutes that argument. It is indeed the case that the sacrificial blood was sprinkled before the animal was incised. But the cup of blood to which the Gemara refers was collected only after the sacrifice of all the paschal offerings was complete. By that time examination of the lungs had certainly been carried out. According to R. Judah, had even a single animal been found to be a treifah, the expedient of sprinkling the commingled blood of all the sacrificed animals would not have been available. Accordingly, Mishkenot Ya'akov's deduction that treifot were so rare that it was possible to slaughter so many animals without discovering a single treifah is not based upon a halakhic assumption that the statistical probability of the occurrence of a treifah cannot be ignored but upon actual empirical observation that there were no treifot.",
+ "2. Shulḥan Arukh",
+ "There is, however, another, more compelling source that does serve to support the thesis that application of the principle of rov entails ignoring completely the statistical likelihood of the presence of a member of the minor set. R. Levi Yitzchak Halperin cites a ruling of Shulḥan Arukh from which it is readily deduced that, in sanctioning the eating of cheese, the statistical probability that a portion of the milk too great to be nullified came from a treifah is to be disregarded. Shulḥan Arukh, Yoreh De'ah 81:2, rules that cheese made from milk of an animal later found to be a treifah is non-kosher. Shulḥan Arukh then adds the comment that, if the cheese was made from milk collected from the entire herd, the milk is permissible provided that the herd consisted of at least sixty kosher cows. The grounds for that ruling are obvious: the non-kosher milk used in production of the cheese in question is nullified in sixty parts of kosher milk. However, nullification in an admixture containing a ratio of sixty to one is cogent only if there is a halakhic presumption that each of the sixty live cows is a non-treifah. Since examination for internal treifot is not possible while the cow is yet alive, the rule formulated by Shulḥan Arukh flows from the halakhic presumption that, unless shown to be otherwise, each animal for which a determination is sought is a member of the rov, or major set of animals that are kosher. Yet the requirement for examination of lungs of slaughtered animals for the absence of adhesions because of the presence of a mi'ut ha-mazui, i.e., a significant minority of animals that are treifot, reflects recognition that, statistically, there must be some non-kosher animals in a herd of sixty dairy cows. Since milk collected from one of those cows is known to be non-kosher, the cheese made from the combined milk of all sixty-one cows is kosher only if all of the remaining cows are non-treifot. However, if even a single additional cow in the herd is a treifah, not to speak of a mi'ut ha-mazui of treifot, the milk of the treifah could not have been nullified by virtue of admixture with the requisite quantity of kosher milk and hence the cheese made from such milk should be forbidden. Shulḥan Arukh's ruling, then, clearly reflects the notion that the principle declaring that \"the majority of animals are kosher\" is applied to each animal individually and statistical exceptions are to be disregarded. If the principle is applied to each animal individually, Shulḥan Arukh's ruling extends equally to a herd of sixty, six hundred or six thousand cows and even the extremely high statistical probability of the presence of a significant quantity of milk derived from non-kosher cows is to be ignored.",
+ "3. Tevu'at Shor",
+ "The same principle is also reflected in a later source, Tevu'at Shor 1:26. Tevu'at Shor's discussion focuses upon the hypothetical case of a slaughterer who, after a period of service, was found to be ignorant of the halakhic provisions governing examination of lungs. Tevu'at Shor compares the case to a situation in which the lung is lost before examination and rules that any already slaughtered meat and the utensils in which it was cooked are permissible. Tevu'at Shor adds the further comment:",
+ "There is no reason to say [that] since, in the present situation, [the slaughterer] examined a superfluity of animals, it is almost certain that there were [some] treifot among them in which case [this situation] is not comparable to [that] of a lost lung and therefore the utensils should be deemed non-kosher and similarly meat of many animals should not be given to a single person to eat, [nevertheless,] it seems to me that one need not be concerned, just as we eat even from each of many animals in a herd and similarly we cook milk even from each of the animals in pots and we are not concerned.",
+ "The thrust of that comment is that, in relying upon the principle of rov, we are not at all concerned with the fact that, statistically, at least some of the animals in a large herd must be treifot. The fact that, empirically, it is \"close to certain\" that some of those animals are not kosher is halakhically irrelevant.",
+ "4. The Status of a Minor Set with Regard to Milk",
+ "Rabbi Halperin endeavors to show that, with regard to resolution of doubt, the status of milk is somewhat different from that of meat. Hagahot Asheri, Beizah 4:15, rules that, in areas is which the majority of animals are found to be non-kosher, it is forbidden to slaughter on Yom Tov. Slaughtering, like cooking, is permitted only for the purpose of preparing meat for consumption on Yom Tov. When the majority of animals are kosher, the presumption with regard to each act of slaughter is that it is undertaken for the purpose of preparing food to be eaten on Yom Tov. But in cases in which the majority of animals will not be fit for consumption by Jews, the act of slaughter cannot be regarded as designed to make meat available for eating. Nevertheless, no authority rules that it is forbidden to drink milk in a locale in which a majority of animals are found to be non-kosher. Rabbi Halperin suggests that milk has a ḥezkat hetter, i.e., milk is presumptively permissible unless there is evidence to the contrary, whereas the meat of a living animal is certainly forbidden while the animal is yet alive. Rabbi Halperin argues that the ḥezkat hetter is sufficient to overcome the statistical probability of the presence of a treifah.",
+ "In his rejoinder published in Kovez Bet Aharon ve-Yisra'el, vol. 18, no. 4, Rabbi Illowitz quite cogently points out that a ḥezkat hetter is of no avail when it is known with certainty that the majority of animals are treifot and that, moreover, since the normative position is that a ḥazakah with regard to a particular prohibition, e.g., the limbs or organs of a living animal, does not create a ḥazakah with regard to any other prohibition, the meat should similarly be prohibited.",
+ "The apparent paradox reflected in permitting the milk of animals that may not be slaughtered on Yom Tov is readily resolvable. The ruling of Hagahot Asheri regarding slaughter of animals on Yom Tov is limited by Sha'agat Aryeh, no. 64, to cases in which the majority of animals are not actually treifot but are afflicted with anomalies which render the animal treifah because of our inability to resolve matters of halakhic doubt or because of stringencies imposed to prevent actual transgression. Thus, in the situation described by Hagahot Asheri, the milk is permitted because there is no actual majority of non-kosher animals and also because of a \"double doubt,\" viz., perhaps the animal from which the milk is derived has no anomaly and, if the animal does suffer from an anomaly, perhaps the anomaly does not render it an actual treifah. However, with regard to slaughtering the animal on Yom Tov, since the meat will not actually be eaten, its slaughter is forbidden.",
+ "5. Hatam Sofer",
+ "The halakhic stance with regard to ignoring the presence of a minor set is stated in even more explicit terms by R. Moses Sofer, Teshuvot Hatam Sofer, Even ha-Ezer, I, no. 5. The rules of evidence provide that a single witness has no credibility to testify counter to a ḥazakah. Thus, for example, the testimony of a single witness to the effect that a husband has died cannot, in and of itself, establish the wife's capacity to contract a second marriage. A ḥazakah of this nature is the presumption that a halakhic status has not changed unless there is evidence to that effect; the testimony of a single witness does not constitute sufficiently strong countervailing evidence to overcome the presumption established by a ḥazakah.",
+ "There is another procedural rule to the effect that a ḥazakah can be overcome on the basis of a countervailing rov. If so, argue R. Ezekiel Landau, Teshuvot Noda bi-Yehudah, Mahadura Kamma, Even ha-Ezer, no. 69, and Pnei Yehoshu'a, Kiddushin 63b, since rov is assigned greater weight than ḥazakah and ḥazakah is accorded greater weight than a single witness, it should follow that rov should be given greater weight than a single witness. Or, to express the matter somewhat differently, just as a single witness has no credibility in the presence of a ḥazakah, he should, a fortiori, not have credibility to testify contrary to a rov. Yet a single witness does have standing to testify that he recognizes one piece of meat among nine other pieces of meat as being kosher even when it is known that nine other pieces of meat are definitely non-kosher. Similarly, a slaughterer has credibility to identify one animal as kosher despite the fact that the majority of animals in the slaughterhouse are non-kosher. In effect, a single witness can be heard to testify that an unknown entity is not to be assigned to the major set.",
+ "Hatam Sofer resolves the problem by distinguishing between application of the principle of rov in the sense of a majority in a situation in which there is a known antithetical minority and application of the principle of rov in a situation in which there is no identifiable minority. The testimony of a single witness in contradiction to application of the principle of rov, he asserts, is accepted only when the presence of a minority is established and known with certainty. In such a situation the witness is simply identifying one entity as a member of the minor set whose existence has already been established. However, the type of rov that prevails over a ḥazakah is a rov with no known exceptions, e.g., the majority of animals are kosher. That rov, properly understood, establishes that the majority of unexamined animals are kosher. Animals known to be non-kosher are not part of the quandary and hence are excluded from the rov. That type of rov carries greater weight than a ḥazakah and a single witness would have no credibility to contradict a rov of that nature because of the complete absence of a known minor set. Hence, concludes Hatam Sofer, \"it is possible that, at present, there is no single treifah in the world other than those known to us.\" Hatam Sofer quite obviously accepts the proposition that, with regard to unknown entities, Halakhah completely disregards the statistical probability of the existence of a minor set.",
+ "B. The Theoretical Basis",
+ "The heretofore cited sources are culled from statements of latter-day authorities and demonstrate that, in applying the principle of rov, those authorities treat the minor set as devoid of members. However, an unequivocal logical reason supporting the position that the probability of existence of a minor set is to be entirely ignored for purposes of halakhic determinations remains to be demonstrated.",
+ "On first analysis it would seem that such a conclusion follows only on the basis of recognition that application of two rather different, but complementary, principles of rov yield that result. As earlier indicated, the principle that \"the majority of animals are kosher\" renders it permissible to partake of meat even though it is impossible to examine the animal for perforation of the trachea and the esophagus. The Torah, in effect, bids us to rely upon the presumption that the animal before us is one of the majority of animals that is not a treifah. That rov applies to all the animals of the world or, at the minimum, to all the animals of the locale from which the slaughtered animal has been culled. Of course, on the basis of past observation, one can take notice of the fact that treifot have existed in the past and hence unidentified treifot are quite likely to exist at the present. That rov is termed a \"rubba de-leta kamman – a rov that is not present before us,\" i.e., a rov unaccompanied by a parallel antithetical minor set containing identifiable members.",
+ "There is, however, another entirely distinguishable principle of rov that is applied when the question is whether a given entity became detached from a major set composed of identifiable members or from a corresponding minor set also composed of identifiable members. Since all members of those two sets were identifiable at least at one time, that rov is known as a \"rubba de-ita kamman—a rov that is present before us.\" The latter principle of rov is derived directly from the biblical phrase \"according to the majority to determine\" (Exodus 23:2). The paradigmatic example is meat found in the street in a city having nine kosher butcher stores and one non-kosher establishment. The meat that has been found has clearly become separated from its original source. In that situation there is a major set comprised of nine members and a minor set having a single member. Application of the principle of rov yields the determination that the meat in question has become separated from a member of the major class and hence the meat is ruled to be kosher. The talmudic formulation of that principle is \"Kol de-parish me-rubba parish—All that are separated are separated from the majority.\"",
+ "Once it is known that there exists a rubba de-leta kamman establishing that the majority of all animals are not treifot, each and every animal presented for a determination of its status must be regarded as non-treifah despite the statistical probability that some animals are treifot. The universe does indeed include both treifot and non-treifot. But any animal whose status is subject to question must be judged to have become detached from the major set rather than from the minor set. Thus, the empirical existence of the minor set is of no halakhic import, statistical reality notwithstanding.",
+ "There remains, however, a further problem. The principle of kol deparish does not apply to the case of a person living in a city having nine kosher meat establishments and one non-kosher store who has purchased meat in a store but cannot remember whether the establishment he patronized sold kosher or non-kosher meat. The principle of rov applies only when doubt arises after the meat in question has become \"separated\" or detached from its point of origin; however, if the doubt arises while the subject of doubt is kavu'a, i.e., at its point of origin, rather than subsequent to separation, the principle of rov does not apply. How, then, can kol deparish be applied in situations in which a purchaser acquires an animal by visiting a herd and selecting the animal or animals he desires? Teshuvot R. Akiva Eger, Mahadura Tinyana, no. 103, sec. 12, resolves that problem by formulating a hypothesis to the effect that a situation of kavu'a constitutes an exception to the principle of rov only if the existence of a non-kosher animal at the point of origin is known with certainty; otherwise, the principle of rov continues to govern.",
+ "However, earlier, in section 11 of the same responsum, R. Akiva Eger raises an even more perplexing issue. The principle of kol de-parish, he asserts, can be applied to a calf born after the mother has been acquired by the purchaser. The status of the calf as a treifah or as a non-treifah is questionable from the very moment that the calf comes into existence; that question arises at the calf's point of origin, i.e., at the moment of birth or even earlier, not upon separation from other members of a set.",
+ "That observation should necessarily lead to one of two conclusions:",
+ "1) The principle of kol de-parish is indeed not applicable to large herds of dairy cows calved and raised by a single dairyman and hence the statistical incidence of treifot must be taken into consideration; or 2) even without the principle of kol de-parish, the principle of rubba de-leta kamman serves, in and of itself, to establish that each and every animal of doubtful status is adjudicated to be a member of the majority and the statistical probability of the presence of at least some members of the minority must be ignored.",
+ "III. Conclusion",
+ "The application of the principle of rov is a halakhic principle rather than an empirical determination. Rabbi Menasheh Klein, in his contribution to the Nisan 5768 issue of Ha-Be'er, probably overstates the case in declaring, \"But, in truth, the law of rov is a positive commandment\" but he is entirely correct in stating that with regard to any particular animal \"we are commanded\" to rule in accordance with rov. Those comments echo the declaration of R. Moses Sofer, Teshuvot Hatam Sofer, Oraḥ Hayyim, no. 83: \"For He who commanded and prohibited the treifah commanded us to rely upon rov.\"",
+ "Writing with regard to an entirely different subject, R. Moshe Feinstein, Dibberot Mosheh, Bava Kamma, addenda, responsum no. 1, sec. 12, declares unequivocally that, in applying the principle of kol de-parish, each entity is to be regarded as a member of the major set \"and there is not even one\" that is a member of the minor set with the result that \"sevarot bnei adam,\" i.e., presumptions of the human intellect, are to be totally ignored. Rabbi Feinstein concludes with the sharp statement: \"He who does not wish to rely upon … the law of parish me-rubba because of reasons of human intellect is as if he disputes the Torah, Heaven forfend.\""
+ ],
+ "Chapter 10 Formula Fed Veal": [
+ "Had Boaz known that the Holy One, blessed be He, would write of him \"and he extended parched corn to her\" (Ruth 2:14), he would have given her fattened calves.",
+ "RUTH RABBAH 5:6",
+ "I. Humane Treatment",
+ "Animal rights groups have long protested the condition under which animals and poultry are raised for commercial markets. Methods employed in raising calves for veal have also been an ongoing focus of attention. Animal rights groups charge that the calves are raised in inhumane conditions. Not surprisingly, those contentions have been denied by the meat industry. Nevertheless, the most successful animal rights boycott in the United States began more than twenty years ago with publicization of photographs of formula-fed veal calves tethered in tiny crates in which they were virtually immobilized. As a result, consumption of veal plummeted from an average of four pounds a year per person to approximately half a pound per year. A recent feature article in the Dining section of the New York Times reports the growth of a yet nascent movement within the industry to raise pastured calves that are suckled and later fed grass and grain. Meat derived from such calves is not only \"certified humane\" but is reportedly more tender and more flavorful than formula-fed veal.",
+ "The meat of calves raised on grass or grain is rosy or pink in color. Formula-fed veal, in contrast, is prized for its white color which is the result of a lack of iron. R. Moshe Feinstein, Iggerot Mosheh, Even ha-Ezer, IV, no. 92, addresses the propriety of inhumane treatment of animals in order to achieve that purpose.",
+ "Although wantonly causing pain to animals is forbidden, the prohibition against causing pain to animals is generally regarded as inapplicable in situations in which there is human benefit, at least when the benefit is substantial in nature. Nevertheless, asserts Iggerot Mosheh, infliction of pain upon animals can be sanctioned only for a recognized and legitimate human benefit. Even when normatively permitted, avoidance of causing pain to animals is regarded as an act of piety, at least in most circumstances.",
+ "Thus, although giving vent to rage or anger has a calming effect, Jewish law does not recognize that need as legitimizing either destruction of property, even one's own, or infliction of pain upon animals. Iggerot Mosheh asserts that such an act, when not performed to advance a legitimate human goal, is forbidden even if the act would redound to a person's financial advantage. Trapping an animal in order to sell its pelt is permitted; however, an act of wanton cruelty that is not designed to yield a human benefit is forbidden even if one receives remuneration for inflicting such pain upon the animal. The distinction is quite simple. Fur is used to satisfy a legitimate human need for clothing and hence money may be accepted in order to satisfy another person's need for the pelt. Wanton infliction of pain does not satisfy a legitimate human need and does not acquire legitimacy simply because one is paid for performing such an act. Indeed, that conclusion is entirely cogent: otherwise forbidden acts of cruelty could be rendered permissible simply on the basis of a pact between two persons who agree to pay one another for engaging in such conduct.",
+ "Iggerot Mosheh concedes that formula-feeding might be sanctioned if the purpose were to make the animals gain weight or to make the meat more tasty; both purposes reflect normal and legitimate human needs. Iggerot Mosheh asserts that white veal is neither tastier nor more healthful than other veal; any claim of that nature he declares to be prohibited as fraud. Iggerot Mosheh does not recognize any enhanced aesthetic appeal that may be associated with white veal as satisfying a legitimate human need and hence he rules that raising calves in an inhumane manner is forbidden.",
+ "Iggerot Mosheh's halakhic points are certainly well-considered. However, he seems to have been provided with less than complete information. Some consumers do indeed prefer formula-fed veal because of its whiteness. However, feeding calves formula rather than grass or grain also significantly reduces the cost of producing veal. Moreover, there is no gainsaying the fact that the taste is entirely different. The taste of grass- or grain-fed veal is similar to mild beef; formula-fed veal has a much blander taste. Some consumers have a marked preference for one over the other. De gustibus non disputandum est. Whether the economic and/or gastronomical benefit is sufficient to warrant the incremental discomfort caused the calves is another matter.",
+ "II. Kashrut Problems",
+ "Iggerot Mosheh does, however, report that formula-fed calves have an inordinately high incidence of lumbar adhesions that render animals non-kosher. Ordinarily, there is no obligation to excise the internal organs, other than the lungs, of a slaughtered animal because disqualifying abnormalities are relatively rare. However, asserts Iggerot Mosheh, since it has been demonstrated that the conditions under which formula-fed calves are raised result in an extremely high rate of lung anomalies, it may well be the case that the diet and/or the living conditions to which those animals are subjected causes abnormalities in other organs as well. Accordingly, Iggerot Mosheh rules that the meat of formula-fed calves may not be eaten unless the internal organs are properly examined and that pious individuals should not rely even upon such examinations. Oral reports received subsequent to publication of that responsum indicate that such examinations have been carried out upon large numbers of formula-fed calves. Those examinations have not revealed a disproportionate rate of anomalies in organs other than the lung and serve to demonstrate that the concern expressed by Iggerot Mosheh is without empirical basis.",
+ "More recently, questions have been raised with regard to the permissibility of eating formula-fed veal because of the ingredients of the formula. In addition to other ingredients, the formula contains significant quantities of animal fat and milk combined in powder form. The powdered formula is mixed with hot water poured into a large vat and stirred by means of an electrical implement. Rema, Yoreh De'ah 60:1, rules that the meat of an animal that \"all its life has been fed only forbidden foods\" may not be eaten. Calves fed formula containing a mixture of prohibited meat and milk, it has been contended, are animals raised solely upon non-kosher food and hence, according to Rema, their meat should be prohibited. In addition, the problem is further complicated by the fact that the cooking of milk and meat together does not simply yield a foodstuff that is forbidden for consumption but results in a product which is assur be-hana'ah, i.e., from which no benefit may be derived.",
+ "Rabbi Aaron Teitelbaum, the Nierbarter Rav, who is responsible for kashrut supervision of major purveyors of meat, has authored a permissive responsum dealing with those issues. Although that responsum is as yet unpublished it has been circulated among rabbinic scholars as has a rebuttal composed by R. Ya'akov Yechezkel Sofer of Toronto, Canada.",
+ "Rema, relying upon earlier authorities, limits the prohibition against eating the meat of animals that have consumed forbidden foods solely to those animals that have been fed forbidden foods exclusively because only in such cases is the animal regarded as a \"yozei\" or \"product\" of the forbidden food. However, if the animal consumes both permitted and non-permitted foods, another principle, viz., zeh va-zeh gorem, becomes operative. The principle of zeh va-zeh gorem establishes that the product of two distinct causes, one permissible and the other non-permissible, is not prohibited since it is not the yozei solely of the product of a forbidden entity. In the case of formula-fed calves, the animal's development is attributable to two separate causes, one permissible and one non-permissible, and hence its meat is permitted.",
+ "Rambam, in his Commentary on the Mishnah, Temurah 6:5 and in Hilkhot Ma'akhalot Assurot 3:14, clearly rejects the notion that an animal is the \"yozei\" or \"product\" of the food it consumes in ruling that animals raised even on foods from which no benefit may be derived are permitted. Rambam rules that the meat of the animal is permitted because the forbidden foodstuff becomes \"changed,\" i.e., it metamorphoses in the process of digestion, and hence, for purposes of Halakhah, the forbidden substance ceases to exist before it is turned into flesh. Rema, however, apparently maintains that nutrients present in the forbidden food are absorbed and metabolized before the food becomes \"changed.\"",
+ "Shakh, Yoreh De'ah 60:5, disagrees with Rema with regard to animals that have been raised entirely on food forbidden for a Jew to eat but agrees that there is a prohibition if the animal is raised on issurei hana'ah, i.e., food from which it is forbidden to derive any benefit whatsoever, even if the animal consumes both permitted and non-permitted foodstuffs. Shakh also notes that, even in such circumstances, Shulḥan Arukh, Yoreh De'ah 142:11, rules that, post factum, the animal's meat is permissible unless the animal's \"primary development\" had resulted from consumption of issurei hana'ah.",
+ "Basing himself upon Issur ve-Hetter he-Arukh 47:9, Pri Megadim, Siftei Da'at 60:5, rules that \"if it is [widely] known\" that the animal has been raised solely on only non-kosher food its meat is forbidden because of mar'it ayin, i.e., possible confusion on the part of the onlooker.",
+ "Rabbi Teitelbaum asserts that formula-fed veal is permissible even though the animals are raised on forbidden foods for three separate reasons:",
+ "1) Despite the fact that Bi'ur ha-Gra, Yoreh De'ah 60:1, concurs in the ruling of Rema, the majority of later authorities, including Pri Hadash, Yoreh De'ah 60:5; Kereti u-Peleti 60:1; Teshuvot Pnei Yehoshu'a, I, Yoreh De'ah, no. 4; Da'at Torah, Yoreh De'ah 60:5; Nishmat Adam, Hilkhot Pesaḥ, sec. 9; Arukh ha-Shulḥan, Yoreh De'ah 60:7; as well as R. Yitzchak Yosef, Yalkut Yizḥak, X (Jerusalem, 5749), pp. 143-147, accept the permissive view of Shakh. In addition, a number of latter-day authorities extend that ruling to include even foodstuffs from which no ordinary or usual benefit may be derived but from which \"unusual\" benefit may be derived. Those authorities assert that eating meat of an animal fed such food products is not considered to be a benefit \"usually\" derived from the forbidden foodstuff.",
+ "2) Rabbi Teitelbaum reports that even formula-fed calves are permitted to suckle for the first seven to ten days of their lives. Thus, they have not been fed forbidden foods exclusively \"all their lives.\"",
+ "3) In addition to the forbidden meat and milk derivatives, the formula also contains a variety of innocuous ingredients. R. Dov Berish Weidenfeld, Teshuvot Dovev Meisharim, III, no. 50, rules that, even according to Rema, if the mixture fed to the animal contains only the \"taste\" of a forbidden food, i.e., the forbidden food has not been nullified by sixty equivalent measures of permitted food, the meat of the animal is permitted because the kosher portion of the mixture also contributes to the fattening of the animal with the result that the animal has not been raised on forbidden food exclusively.",
+ "Rabbi Teitelbaum's first considerations may not be germane because Shakh's permissive view may not be applicable to formula-fed veal. Shakh permits the consumption of meat of animals raised on forbidden foods but he does not sanction eating meat of animals raised on food from which no benefit may be derived. Since the formula fed to the calves contains both meat and dairy ingredients that are combined and cooked together, it may be the case that it is forbidden to derive benefit from the mixture. Even \"unusual\" forms of benefit may not be derived from meat and milk that have been commingled in cooking. Hence the crucial issue is whether the formula contains milk and meat derivatives that have been \"cooked\" together.",
+ "In describing the process used in preparing the formula Rabbi Teitelbaum is somewhat unclear. In his introductory description Rabbi Teitelbaum stresses that hot water is released into a large vat and only afterwards is the powder mix stirred into the water. If so, \"cooking\" takes place in a keli sheni, i.e., a secondary utensil not in contact with fire. The general rule is that \"cooking,\" as generally understood in halakhic contexts, cannot take place in a secondary utensil. Even though, with regard to the prohibition against cooking that is prohibited on Shabbat, foodstuffs that are \"easily cooked\" may not be heated in a keli sheni, Teshuvot Maharil, no. 82, indicates that the concern is limited to violation of Sabbath restrictions but does not apply in other areas of Halakhah. Hence, since it is forbidden to derive benefit only from milk and meat that have been cooked together, milk and meat heated in a secondary utensil cannot become assur be-hana'ah.",
+ "However, later in his discussion Rabbi Teitelbaum indicates that, at times, additional hot water is poured into the mixed formula already present in the vat in order to raise its temperature. As recorded by Tosafot, Zevaḥim 95b, s.v. irah, there is a controversy with regard to whether a hot liquid poured from a primary utensil, i.e., a utensil heated on a stove, can effect the \"cooking\" of at least the upper surface to the depth of a \"peel\" of the substance on which it is poured. However, Pri Megadim, Yoreh De'ah, Mishbezot Zahav 88:9, maintains that the controversy is limited to a hot liquid falling upon a solid food but that all concur that no \"cooking\" occurs if the hot liquid is poured into a cold liquid. Similarly, no \"cooking\" occurs if the hot liquid falls upon a powder. In addition, R. Jacob of Lissa, Havvat Da'at, Bi'urim 91:7, maintains that a \"peel\" cannot become assur be-hana'ah because cooking only the surface of a foodstuff is not a natural or usual form of \"cooking.\"",
+ "Moreover, even if the thickness of a \"peel\" is cooked and becomes assur be-hana'ah, many authorities maintain that if the peel falls into other food and is not recognizable in the resultant mixture it is permitted to derive benefit from the mixture. Other authorities maintain that the forbidden \"peel\" is nullified only in a mixture sixty times as great. In addition, although some authorities differ, Shakh, Yoreh De'ah 94:22, rules that if a mixture of cooked milk and meat becomes commingled with other food the resultant mixture is not treated as milk and meat but as a conventionally prohibited foodstuff and hence that mixture is not rendered assur be-hana'ah. Furthermore, even those who differ with Shakh regarding this issue recognize that the resultant mixture is prohibited only by reason of rabbinic decree, rather than by biblical law. Hence, since there is no issur hana'ah associated with milk and meat forbidden only by virtue of the rabbinic prohibition, the resultant mixture may be fed to animals.",
+ "In light of Rabbi Teitelbaum's premises, his discussion of whether or not the formula is assur be-hana'ah seems to be somewhat superfluous. Rabbi Teitelbaum accepts the position of Shakh who maintains that there is no restriction even ante factum upon eating meat of an animal that has been raised on forbidden foods and that the problem exists only with regard to animals raised on feed that is assur be-hana'ah. He further asserts that formula-fed calves are not raised all their lives on food that is assur behana'ah because they suckle cow's milk the first seven to ten days of their lives and also because the major portion of the formula is comprised of kosher ingredients. Accordingly, it follows that, even were the formula to be deemed assur be-hana'ah, the resultant problem would certainly affect the farmer who wishes to derive benefit from the use of such formula in feeding his cows. However, since under such circumstances the meat is permitted post factum on the basis of the principle of zeh va-zeh gorem, the consumer encounters no problem in purchasing the meat.",
+ "However, a complication with regard to the post factum status of such animals arises from the fact that the proprietors of many, and probably the majority, of slaughterhouses and meat processing plants are non-Jews. That is certainly true with regard to the cattlemen who raise calves. As is evident from Shakh's analysis of the ruling of Shulḥan Arukh, Yorah De'ah 142:11, the meat of an animal that has been raised both on issurei hana'ah and on permissible substances is, post factum, permitted on the basis of the principle of zeh va-zeh gorem. However, purchasing such an animal from a non-Jew might well be considered to be ante factum since refraining from doing so will result in no actual financial loss to a Jew. R. Ovadiah Yosef, Yabi'a Omer, VII, Yoreh De'ah, no. 7, sec. 1, demonstrates that the overwhelming majority of halakhic decisors regard a situation of that nature as post factum. It is certainly clear that if no other veal is available, or is not available at a reasonable price, all authorities would agree that the situation is to be regarded as post factum.",
+ "More significantly, Rabbi Teitelbaum's contention that the problem is obviated since the fact that the calves suckle after birth for a period of seven to ten days invokes a consideration that is certainly subject to dispute. Shakh himself asserts that Rema's reference to an animal that has consumed forbidden foods \"all its life\" is not to be understood literally but as connoting that the animal's primary development was the product of forbidden foodstuffs.",
+ "Rabbi Sofer's objections are based on a number of considerations that would render the formula assur be-hana'ah:",
+ "1) Pri Megadim, Oraḥ Hayyim 318:30, maintains that \"easily cooked\" foodstuffs cooked in a secondary utensil are considered to be \"cooked\" not only for purposes of Sabbath prohibitions but also with regard to the prohibited cooking of milk and meat.",
+ "2) If the stream of hot water remains attached to its source and the powder is poured into the water, some authorities maintain that not only a \"peel\" of the powder is \"cooked\" but that the entire quantity of powder added in that manner is deemed to be \"cooked.\" Those authorities maintain that, in effect, each particle of powder is discrete and, since its thickness is less than that of a \"peel,\" each particle becomes cooked sequentially.",
+ "3) Even if the entire quantity of powder is placed in the vat before the hot water is introduced so that only a \"peel\" is \"cooked\" by the hot water, each successive \"peel\" is \"cooked\" as the powder is stirred while water is constantly added.",
+ "Rabbi Sofer further objects that it is forbidden to feed animals foodstuffs that contain even a \"taste\" of issurei hana'ah. That objection is well-taken insofar as feeding animals is concerned. Direct benefit may not be derived from foodstuffs containing a \"taste\" of issurei hana'ah because the \"taste\" of the forbidden substance cannot be separated from the food it permeates. However, as stated by Pri Megadim in his introduction to Hilkhot Basar be-Halav, permitted food containing a small quantity of issurei hana'ah may be sold to a non-Jew provided that the value of the issurei hana'ah is deducted from the purchase price. Similarly, insofar as an animal raised on such feed is concerned, the animal should be deemed to have been raised on a mixture of issurei hana'ah and kosher food with the result that, post factum, the meat of the animal is permitted on the basis of the principle of zeh va-zeh gorem. Rabbi Sofer fails to address the additional consideration that the calves are fed cow's milk exclusively during the period immediately following birth.",
+ "III. Conclusions",
+ "Resolution of the question of the permissibility of veal derived from formula-fed calves is dependent upon adjudication of a number of halakhic issues:",
+ "1. The primary issue is whether the formula is assur be-hana'ah as a form of milk and meat that has been cooked together. That is unlikely to be the case for a number of reasons:",
+ "a) It may well be the case that the \"cooking\" of all but a small portion of the produced formula takes place in a secondary utensil.",
+ "b) A substantial portion of the formula consists of entirely innocuous ingredients. The consensus of opinion is that ḥatikhah na'asit neveilah does not apply to otherwise permissible foodstuffs that absorb commingled milk and meat. Accordingly, the principle of zeh va-zeh gorem would serve to negate the prohibition against deriving benefit from commingled milk and meat.",
+ "The contention that the calves are suckled for seven to ten days during the initial post-partum period is probably not a sufficient factor to render the principle of zeh va-zeh gorem applicable but, in light of the foregoing that consideration is superfluous.",
+ "2. Assuming that the formula is not assur be-hana'ah, the second issue is whether the meat of an animal raised exclusively on forbidden foods is prohibited. That issue would arise by virtue of the presence of non-kosher tallow in the formula even if the formula did not include milk derivatives. A permissive ruling with regard to that question is contingent upon:",
+ "a) acceptance of Shakh's view, in opposition to that of Rema and Bi'ur ha-Gra, that the meat of an animal raised exclusively on forbidden foods is not forbidden; or",
+ "b) recognition that the formula contains innocuous ingredients in addition to the forbidden milk and meat derivatives coupled with rejection of the opinion that ḥatikhah na'asit neveilah applies at least by virtue of rabbinic decree to forbidden substances other than commingled milk and meat; or",
+ "c) the unlikely determination that suckling during the post-partum period is a factor sufficient enough to render the principle of zeh va-zeh gorem applicable.",
+ "Assuming that there is no problem of issur hana'ah resulting from biblically prohibited cooked milk and meat, a kashrut supervisory authority would be justified in relying upon the position of Shakh since it appears to be accepted by the majority of latter-day authorities. However, certification of veal raised under such conditions as glatt kosher is more problematic.",
+ "The term glatt, or the Hebrew ḥalak, in its literal meaning refers to the fact that the lungs have been found to be \"smooth,\" i.e., no adhesions are present that might compromise the kashrut of the animal. The reason for that standard is that the presence of an adhesion requires a determination that the adhesion is not of a nature that would render the animal non-kosher. Such a determination usually requires adjudication between conflicting halakhic opinions and also presents issues with regard to the method employed in removal of the adhesions prior to examination for a possible perforation.",
+ "The Gemara, Hullin 37b, cites Ezekiel 4:14; \"… I have not eaten of neveilah or treifah from my youth until now,\" and offers a remarkable interpretation. Neveilah and treifah are forbidden to all Jews. It would have been unthinkable for Ezekiel to have violated those prohibitions. Hence, his almost boastful comment would have been entirely superfluous. Accordingly, the Gemara understands Ezekiel to have exclaimed, \"I have not eaten of an animal with regard to which a scholar ruled,\" i.e., Ezekiel, as an act of piety, refused to eat meat whose kashrut was the subject of any doubt even if it was ruled to be kosher by a competent scholar.",
+ "The term glatt in common parlance has acquired the connotation that food described in that manner is not in the category of behemah she-horah bah ḥakham, i.e., it is not a foodstuff whose kashrut was subject to question and whose acceptability is contingent upon a permissive determination by a scholar. That expanded connotation of the term glatt is entirely understandable since the piety adopted by Ezekiel and emulated by others was assuredly not limited to lumbar adhesions. Adhesions of the lungs are simply the most common problem requiring an opinion of a scholar with regard to the kashrut of the animal. Adjudication of a controversy between Rema and Shakh certainly entails a \"ruling of a scholar\" which those who adopt a glatt standard of kashrut would be unwilling to entertain.",
+ "There is one expedient that would serve to remove virtually all questions with regard to the permissibility of veal derived from formula-fed calves. A formula that contains no forbidden ingredients has been devised and patented. However, for reasons that are not clear but which presumably are economic in nature, that product has not been adopted by the veal industry. Levushei Serad, IV, sec. 81, cited by Pitḥei Teshuvah, Yoreh De'ah 60:2, suggests that even if an animal is raised entirely upon forbidden foodstuffs its meat is permissible if the animal is fed permissible food exclusively \"two or three days\" prior to slaughter. Although that authority does not make a final determination with regard to this matter, he strongly inclines to that view. If so, feeding the calves kosher formula at least during the two- or three-day period preceding slaughter would obviate the problem."
+ ],
+ "Chapter 11 Issues Concerning Kohanim": [
+ "Beloved are the Kohanim for, when God bestows a sobriquet upon them, He always refers to them as ministering angels.",
+ "SIFRI, PARASHAT KORAH 46",
+ "Priestly Identity",
+ "Marriage between a person of Aharonic descent and a divorcée is expressly forbidden by Leviticus 21:7. As recorded by Shulḥan Arukh, Even ha-Ezer 6:8, marriage between a kohen and a female convert is also prohibited. The late Rabbi Moshe Feinstein, of blessed memory, is widely quoted as having ruled that ba'alei teshuvah, i.e., newly-observant young men, whose fathers were not observant may be permitted to marry divorcées or converts to Judaism despite the fact that they have held themselves out as kohanim. The reasoning, it is reported, is that the assumption of priestly descent on the part of such a person is derived entirely from his father's genealogical claim. Since the father was, and remains, non-observant, his testimony, it is claimed, as a matter of Halakhah, can be given no credence.",
+ "This issue is discussed in two remarkably brief responsa published in Iggerot Mosheh, Even ha-Ezer, IV, no. 11 and no. 39. The particular situation discussed by Iggerot Mosheh in his first responsum, dated 5721, involved a man already married to a convert who presumed that he was a kohen on the basis of the fact that on a single occasion on which his father was \"called to [the Torah at] a bar mizvah celebration\" the father stated that he was a kohen. Iggerot Mosheh describes the father as totally non-observant and in the same sentence adds that the father \"also ran away from his father's house in his youth because of rebellion against his father\" so that \"presumably (lefi ha-da'at) he could not properly know a matter such as this.\" Iggerot Mosheh further takes note of the fact that a female cousin declared that her father, a brother of the gentleman's father, challenged her cousin's claim to priestly descent declaring, \"How is that possible that you are a kohen since my father, who is your father's brother, is not a kohen?\" Without further analysis of the grounds for his ruling, Iggerot Mosheh proceeds to declare that since the gentleman's priestly identity was established solely on the basis of the declaration of his father \"who has no credibility\" with regard to that matter, the son is not obliged to divorce his wife. The discussion does not reveal whether that conclusion is based solely upon the father's lack of religious observance, upon the father's unreliable recollection due to the particular circumstances of his relationship with his family, upon the cousin's contradictory evidence or upon a combination of those considerations.",
+ "Iggerot Mosheh's ruling was understood as based upon the confluence of those considerations in a decision of a Jerusalem bet din established for purposes of ruling on matters of personal status. The decision of that bet din, comprised of the respected Sephardic authority, the late R. Eliyahu Abba Sha'ul, R. Abraham Dov Levine and Rabbi Eliyahu Shlesinger is published in Piskei Din me-Bet ha-Din le-Dinei Mammonot u-Birur Yahadut shel ha-Rabbanut ha-Rashit le-Yerushalayim, vol. I (5755), part 2, pp. 43-54.",
+ "1. Credibility of a Parent",
+ "It is entirely likely that, were the matter to hinge entirely upon the father's credibility, Rabbi Feinstein would have maintained that the father's lack of observance would be sufficient, in and of itself, to dismiss his testimony. In doing so Rabbi Feinstein would simply have been relying upon his own opinion as announced in Iggerot Mosheh, Even ha-Ezer, I, no. 82, anaf 11 and reiterated in Even ha-Ezer, IV, no. 32, anaf 7, to the effect that even a tinok ha-nishbah bein ha-akum, i.e., a child held in captivity among the pagans, has no credibility. That understanding of Rabbi Feinstein's position is bolstered, but not unequivocally confirmed, by his discussion in the second of those responsa, Even ha-Ezer, IV, no. 39. Surprisingly, the Jerusalem bet din fails to make any reference to the latter responsum.",
+ "The latter responsum, written in 5738, addresses the status of a newly observant man married to a non-Jewish woman with whom he had a child. The woman in question was apparently eligible for conversion as a righteous proselyte but would have been forbidden to marry a kohen. The gentleman's grandfather immigrated to this country from behind the Iron Curtain in 1923. The gentleman in question presumed himself to be a kohen solely on the basis of information imparted to him by his father.",
+ "The family reportedly had \"no knowledge whatsoever of Torah or Judaism.\" Since the father \"knew nothing\" and it is clear that the grandfather made no attempt whatsoever to educate his child \"even in some matters\" of a Jewish nature, Iggerot Mosheh deduces that the grandfather was both a Communist and an atheist and was already a \"thoroughly evil\" person (rasha gamur) when he arrived in this country. Accordingly, concludes Iggerot Mosheh, the grandfather had no credibility to claim priestly descent. That statement, standing alone, would certainly indicate that the grandfather's lack of observance, or his atheism, was dispositive with regard to his non-credibility.",
+ "Iggerot Mosheh, however, adds a number of additional comments. The progenitor's testimony is not to be accepted, asserts Iggerot Mosheh, \"particularly since [the grandson] did not hear this from his grandfather who perhaps may have at least studied in a ḥeder before the Communist conquest even though there were already many irreligious people (ḥofshim) in the cities of the Ukraine in the fourth and fifth year of this century … nevertheless, they certainly knew a little even though they had no credibility.\" The reader can only register puzzlement with regard to the thrust of those comments: If such individuals lack credibility what difference can be effected by their knowledge of Jewish practices or by the grandfather's attendance at a ḥeder? The statement seems to reflect equivocation between a statutory lack of credibility and lack of credibility due to sheer ignorance.",
+ "Moreover, Iggerot Mosheh places weight upon the fact that the couple had already established a non-halakhic marital relationship which, he maintains, should not be disturbed on the basis of the available information. Also incorporated in that statement is Iggerot Mosheh's sensitivity to the fact that if the gentleman's status as a kohen is confirmed and he is informed that marriage to this woman subsequent to her conversion is forbidden \"it is certain that one must be concerned\" that, in all likelihood he will return to his prior non-observant lifestyle. At the same time, Iggerot Mosheh expresses a strong inclination, but not a certainty, that such a person may be permitted to marry a convert or a divorcée even in the absence of those factors.",
+ "In his first responsum Iggerot Mosheh dismisses the statement of the father, not because he was a heretic, but because he was a Sabbathdesecrator. The principle formulated by the Gemara, Eruvin 69b, is that public desecration of the Sabbath is tantamount to heresy. That principle is predicated upon the premise that open and notorious desecration of the Sabbath is evidence that the transgressor denies that God created the universe over a period of six days and rested on the seventh. That talmudic presumption went unchallenged until the mid-nineteenth century. R. Jacob Ettlinger, Teshuvot Binyan Ẓion ha-Hadashot, no. 23, reports a socioreligious phenomenon, novel in nineteenth-century Germany but all too familiar in twentieth-century America, viz., the existence of countless numbers of Jews who offered Sabbath prayers and recited kiddush each Sabbath eve but then proceeded to desecrate the Sabbath by engaging in all manner of forbidden activity. Is it logical, queries Binyan Ẓion, for a person who denies creation to devoutly recite \"And the heaven and earth and all their hosts were complete. And on the seventh day God completed the world which He made and He rested on the seventh day….\" (Genesis 2:1-2). The notion of a believing Sabbath-desecrator might have been an oxymoron in a bygone age but in the modern world, argues Binyan Ẓion, it is a new reality. In the modern age, whether because of financial duress or other factors, that phenomenon is all too real. Others, who are raised in irreligious homes, know no better and have the status of \"a child who was held in captivity among pagans.\" Accordingly, in light of the changed realia, rules Binyan Ẓion, the talmudic presumption of heresy does not attach itself to such persons.",
+ "Iggerot Mosheh, Oraḥ Hayyim, I, no. 33 reaches the same conclusion but on somewhat different grounds. Iggerot Mosheh queries why a person who violates the Sabbath in private should be viewed less severely than one who desecrates the Sabbath in public. In private, he submits, it may be assumed that the trespasser acts out of weakness and desire rather than because of disbelief. When the transgression is performed in public onlookers observe an act of heresy whereas the individual's motives and intent are concealed from them. In our day, contends Iggerot Mosheh, since \"it is known that the majority of Sabbath-violators [act] because of desire for lucre\" onlookers do not perceive such acts to be heretical in nature. Hence there is no longer a distinction between Sabbath desecration, in private and in public. R. David Zevi Hoffmann, Melamed le-Ho'il, Oraḥ Hayyim, no. 28, reasons simply that, in an age of rampant Sabbath desecration, people have become desensitized to the severity of the transgression. Since they perceive no need to conceal their actions, argues Melamed le-Ho'il, public desecration of the Sabbath, in our day, is no more onerous than private transgression in times gone by.",
+ "Although disputed by others, the basic position, albeit sometimes formulated on the basis of different halakhic nuances, has been espoused by a long list of rabbinic authorities. Even those who disagree concede that a person who grows up among non-observant Jews has the status of a \"tinok ha-nishbah bein ha-akum,\" i.e., \"a child held in captivity among the pagans\" who is not to be treated as a heretic since he never knew better. In effect, invincible ignorance is a shield against the halakhic sanctions and disqualifications suffered by a heretic with the result that a person who was raised in a non-observant environment and denied a meaningful Jewish education is to be regarded as having the status of \"a child held in captivity.\"",
+ "Iggerot Mosheh, Even ha-Ezer, I, no. 82, anaf 11 and IV, no. 39, maintains, however, that, although such individuals suffer no other sanction, they are disqualified from serving as witnesses, not because of inherent \"wickedness,\" but for the simple reason that such persons have no compelling reason to be truthful. The testimony of a believing Jew is accepted because he recognizes perjury to be a sin. A person who has no knowledge of the binding nature of the Sinaitic revelation has no such constraint; hence his testimony can be given no credence. It would follow that a person having knowledge of the prohibition against false testimony, but who professes no commitment to the observance of any of the commandments, would, according to Iggerot Mosheh, be similarly disqualified as a witness since he is under no imperative to be truthful. R. Yehudah Leib Diskin, Teshuvot Maharil Diskin (Jerusalem, 5691), p. 108, sec. 5, seems to adopt a similar view. That is also clearly the opinion of Teshuvot Maharshakh, III, no. 15, who comments with regard to those in the category of a tinok ha-nishbah: \"It is not proper to accept them as witnesses for after all they transgress many commandments…. [Is] it conceivable that [such a person] be accepted for testimony since he does not act in the manner of proper Jews?\"",
+ "A contradictory position was espoused by the Israeli Rabbinical Court of Appeals in 5708 in an opinion issued by R. Ben-Zion Uziel, R. Isaac ha-Levi Herzog and R. Meshullem Roth published in Osef Piskei Din Rabbaniyim (Jerusalem, 5710), pp. 137-138, a slim volume that served as a precursor to the Piskei Din Rabbaniyim. The case involved a woman divorced from a kohen who claimed that she and her former, but now deceased, husband had remarried and hence she was entitled to the rights and prerogatives of a widow. Since marriage between a kohen and a divorcée is forbidden the marriage was solemnized without benefit of clergy but in the presence of witnesses. At issue was a challenge to the validity of the marriage by virtue of the fact that the witnesses were non-observant and, in the case of one witness, there was testimony that he had been seen smoking in public on Shabbat. The bet din refused, albeit somewhat tentatively, to disqualify the witnesses arguing that \"in a time and a place in which non-observance has multiplied and spread … \" transgressions of this nature do not undermine the credibility of witnesses. In the situation of such great 'hiding of the face' [the witnesses] are virtually inadvertent transgressors.\" Disqualification of transgressors or witnesses is because of fear of false testimony \"and accordingly the credibility of the witness must be assessed in accordance with the circumstances of the time and the place\" (ibid., p. 137). The bet din was prepared to accept such testimony, not only in instances of invincible ignorance, but even in situations in which the improper conduct might be attributed to sociological factors. Quite clearly, the bet din, unlike Iggerot Mosheh, assumed that witnesses abjure perjury not solely because of a divine mandate to do so but because of the innate, natural human condition. According to that view a non-observant father would have credibility to testify with regard to his son's status as a kohen.",
+ "Indeed, it would be entirely consistent even with Iggerot Mosheh's position to assert that, although individuals who do not accept the veracity of revelation at Sinai have no credibility, nevertheless, those who accept the basic phenomenon but, due to ignorance of its provisions, economic pressures, unrestrained desire or convenience are largely nonobservant, retain credibility concerning matters with regard to which they are scrupulous. The individual described in Iggerot Mosheh's first responsum was totally non-observant; the individual described in the second responsum is depicted as an atheist. Neither responsum addresses the phenomenon of the somewhat knowledgeable, selectively-observant, professing Jew.",
+ "Moreover, in addressing an entirely different issue, Iggerot Mosheh himself asserts that, at times, even an avowed atheist has credibility with regards to matters of religious law. Rabbi Feinstein, Iggerot Moshe, Yoreh De'ah, I, no. 54, reports that on a visit to Moscow in 1936 he was consulted with regard to an agonizing question. Circumstances forced many elderly and infirm individuals to live with their children. Those children, living under the influence of the Communist state, did not observe kashrut and \"the majority denied God and His Torah.\" Nevertheless, they accommodated their aged parents by purchasing kosher food and providing kosher utensils on their behalf. The issue presented to Rabbi Feinstein was the credibility of those children with regard to kashrut.",
+ "Iggerot Mosheh responded that a parent might indeed rely upon his child's guarantees of kashrut provided that the parent was firmly convinced that the \"daughter or daughter-in-law\" would not cause the parent to transgress. Such conviction would arise, asserts Iggerot Mosheh, if the parent \"tested\" the homemaker on a number of occasions and ascertained that no attempt was made to fool the parent because the child \"did not want to cause him pain or because it was the nature [of the child] not to cause others to act contrary to their will.\"",
+ "In explaining his ruling, Iggerot Mosheh argues that rules governing disqualification of witnesses pertain only to acceptance of testimony with regard to individuals whose nature is unknown. Statements of such individuals are accepted on the basis of \"belief\" in the truth of their testimony rather than on the basis of knowledge. Citing an anecdote recorded in Ketubot 85a, Iggerot Mosheh asserts that, in a situation in which a person has personal knowledge of another individual's unchallengeable probity, his acceptance of the latter's statement is a matter of \"knowledge\" rather than \"belief\" and hence he may act on such statements even if that person is not qualified to serve as a witness.",
+ "It would then follow that, even according to Iggerot Mosheh, if the son is absolutely certain that his father, despite the fact that the latter is a Sabbath-violator or even an atheist, would not lie with regard to matters of religious observance, the son whose priestly genealogy has been disclosed by his father, is deemed to \"know\" that fact to be true and must comport himself accordingly.",
+ "The Jerusalem bet din, in its decision, failed to address another issue affecting disqualification of witnesses. Bet Yosef, Even ha-Ezer 42, s.v. maz'ati, describes an incident involving a person who entered into a marriage in the presence of witnesses who were known to have committed serious transgressions. One authority, a certain R. Chaim he-Arukh, declared the marriage to be null and void. The Sages of Tilutula challenged the ruling and placed R. Chaim he-Arukh under a ban until such time as he would rescind that ruling. Their position was that a person cannot be disqualified unless testimony establishing his wrongdoing is heard in his presence by a properly constituted bet din. Since that had not occurred they maintained that the marriage was valid.",
+ "A similar position is espoused by Teshuvot ha-Baḥ, no. 102; Urim ve-Tumim, Hoshen Misphat, Urim 28:3 and Tumim 87:27; Teshuvot Hatam Sofer, Yoreh De'ah, no. 11; Teshuvot Hikrei Lev, Yoreh De'ah, no. 1; Netivot ha-Mishpat, Bi'urim 46:22, cited by Pitḥei Teshuvah, Hoshen Mishpat 28:1; Teshuvot Pnei Aryeh, no. 28, cited by Pitḥei Teshuvah, Even ha-Ezer 42:18; and R. Samuel Walkin, Teshuvot Zekan Aharon, I, no. 74.",
+ "2. Personal Credibility—Shavya Anafsheih",
+ "The Jerusalem Bet Din le-Birur Yahadut addressed a case similar to that brought to the attention of Iggerot Mosheh and ruled in a different manner in at least one salient aspect. The case involved a newly-observant Russian couple. The wife had previously been married to a non-Jew and hence was disqualified from marrying a kohen. The husband had been informed of his family's priestly status by his non-observant father.",
+ "The general rule is that a person has standing, even when contradicted by trustworthy witnesses, to declare that certain matters are prohibited to him. Thus a person may not eat a foodstuff he has declared to be non-kosher even though others are fully entitled to rely upon the contradicting testimony of two witnesses. The resultant principle is known as \"Shavya anafsheih ḥatikha de-issura—He has established upon himself a prohibited piece.\" Similarly, a person has credibility to declare himself a mamzer and consequently forbidden to marry a Jewess of legitimate birth. Although such credibility is generally limited to oneself, nevertheless, as recorded by Rambam, Hilkhot Issurei Bi'ah 15:15-16, a father is granted specific authority to declare his son to be a mamzer, most particularly when he testifies directly with regard to his son's status. That authority is derived from the biblical verse \"yakir— he shall recognize\" (Deuteronomy 21:17). If the father testifies that he himself is a mamzer and, by implication, that status is shared by his son as well, some authorities maintain that the father's testimony creates only a doubtful status with regard to the son.",
+ "The Jerusalem bet din raised an intriguing issue in questioning whether the rule of \"yakir\" is limited to disqualification as a mamzer or whether it applies also to acknowledging a son as a kohen who is then bound by attendant marital restrictions. A person certainly has credibility to declare himself a kohen for purposes of being forbidden to marry a divorcée. The question is whether or not he can generate the selfsame prohibition with regard to his son. If yes, argued the bet din, the father's lack of observance is of no consequence. A father is disqualified from serving as a witness in any matter affecting his son. Nevertheless, despite the paternal-filial relationship that exists between them, the rule of \"yakir\" endows the father with credibility despite such ostensive disqualification; similarly, that principle establishes credibility even in face of other disqualifications as a witness.",
+ "Moreover, argued the bet din, the son who had declared himself a kohen, albeit on the strength of his father's declaration, has created his own shavya anafsheih quite apart from the implications flowing from the father's declaration. Teshuvot ha-Radvaz, I, no. 362, advances the thesis that shavya anafsheih is established not only on the basis of alleged personal knowledge but also on the basis of the acceptance of statements of others. That position is also reflected in the comments of Tosafot, Kiddushin 66a, s.v. Rava, as well as the ruling of Teshuvot Hatam Sofer, Even ha-Ezer, I, no. 78, cited by Pitḥei Teshuvah, Even ha-Ezer 115:25.",
+ "Iggerot Mosheh dismissed the issue of shavya anafsheih in the first case brought to his attention because the son's presumption of his status as a kohen was predicated entirely upon the statements of his non-observant father. The Jerusalem bet din chose to interpret Iggerot Mosheh's comment regarding the father's lack of observance, not as a reference to that factor per se, but in the context of the total fact pattern, i.e., because of the father's non-observance he had no knowledge of what priesthood connotes and may therefore have been engaged in idle speculation. Accordingly, the bet din declared that a different result would obtain in a situation in which a non-observant father explicitly presents the information in the context of transmitting a family tradition and the report is accepted by the son as credible. That interpretation would appear to be compelled unless Iggerot Mosheh is to be understood as rejecting the notion that shavya anafsheih may arise from reliance upon statements of others.",
+ "However, the Jerusalem bet din acknowledged that Iggerot Mosheh may have dismissed the issue of shavya anafsheih for a different reason. The bet din presumed that the principle of shavya anefsheih ḥatikha deissura is limited to actual and intended declaration of a prohibition or issura rather than to the establishment of facts that give rise to a prohibition. Accordingly, in the case at hand, the bet din ruled that shavya anafsheih would be applicable only if the person making such representations was cognizant of the fact that, as a result of declaring himself to be a kohen, he would be forbidden to marry a divorcée. That view is consistent with the position of Teshuvot Shev Ya'akov, cited by Kezot ha-Hoshen 80:2, who maintains that shavya anafsheih is a form of vow and hence is applicable only if the person understands the consequences of his statement; otherwise, it is a vow undertaken in error and therefore of no effect. Kezot ha-Hoshen himself rejects that view and advances the thesis that shavya anefsheih simply reflects the credibility that the Torah extends to a person's statements insofar as they affect himself. Accordingly, Kezot ha-Hoshen regards ignorance of the implications of such a statement to be inconsequential. Hatam Sofer, in his previously-cited responsum, adopts a position compatible with that of Shev Ya'akov in ruling that a husband who declares that his wife has committed adultery may not continue the marital relationship even though, when making the statement, the husband was unaware of the halakhic rule forbidding an adulterous wife to her husband.",
+ "3. Hazakah",
+ "Another factor that must be considered with regard to the question of priestly identity is the possibility that investigation would disclose the existence of a ḥazakah with regard to the family's priestly status. In this context, the notion of ḥazakah is nothing other than common knowledge within a community of the status of an individual or of his forebears. Thus, although the father may never have attended synagogue and hence never have been accorded Torah honors, it may be the case that there are records in the archives of the European community from which the family hailed indicating that the grandfather was a kohen. Discovery of such information subsequent to marriage to a woman forbidden to a kohen would be disastrous. Although the matter has not received attention in the responsa literature, a gravestone indicating that the grandfather was a kohen might be deemed evidence of \"common knowledge\" of such status within the community. That consideration becomes even more compelling if, as often was the case in European communities, gravestone inscriptions were supervised by the local ḥevra kaddisha (burial society).",
+ "Whether the existence of a ketubah indicating that the father or grandfather was a kohen is evidence of priestly status is a matter of controversy among early authorities. Rambam, Hilkhot Issurei Bi'ah 20:9, regards such evidence as sufficient to create at least doubtful status and to entitle such an individual to partake of priestly offerings obliged by rabbinic, and distinct from biblical, decree. Re'ah, cited by Ran, Ketubot 24b, and Ritva, ad locum, express doubt with regard to whether any evidentiary weight is to be assigned to such instruments. Shakh, Hoshen Mishpat 49:15, explains that the underlying issue is whether the attesting witnesses testify only to the substantive provisions recorded in the document or whether they testify to ancillary matters contained therein as well.",
+ "The bet din also opined that the family name \"Cohen\" is sufficient to establish a presumption of priestly status. The bet din reasoned that, since the \"vast majority\" of individuals bearing the name \"Cohen\" are kohanim, ascription of that name to the family generates a ḥazakah or presumptive evidence of priestly status. In a footnote the bet din takes cognizance of the opinion of R. Israel Meir Lau, Yaḥel Yisra'el, I, no. 30, who maintains that, absent a family tradition to that effect or a ḥazakah established by individual members of the family, the surname alone is not dispositive. His primary consideration is that, in some European communities, marriages were not registered in a timely fashion with the result that, not infrequently, children were registered as bearing the mother's family name.",
+ "In a response to an inquiry by the bet din in a different case published by the Jerusalem bet din in Piskei Din, ibid., III, part 2, p. 291, R. Samuel ha-Levi Woszner declares that the family name is of no consequence in determining priestly status.",
+ "Marriage of a Kohen and the Daughter of a Non-Jew",
+ "In a decision issued on 19 Iyar 5766, the Rabbinical District Court of Rehovot confirmed its earlier ruling declaring an applicant for a marriage license to be eligible to contract a marriage as a Jewess but denied her permission to marry a kohen on the grounds that she was the issue of a union between a Jewish woman and a non-Jewish man.",
+ "The decision, on the surface, was routine and unexceptionable. Denial of the application for a marriage license was based upon an explicit provision of Halakhah recorded twice in Shulḥan Arukh, Even ha-Ezer 4:5 and 4:19 and implicit in the ruling of Shulḥan Arukh, Even ha-Ezer 7:17. The Rehovot bet din composed a detailed analysis of the basis of that ruling only because the case was remanded to them on appeal for further consideration by the Supreme Rabbinical Court of Appeals.",
+ "The Gemara, Yevamot 45a, posits a controversy among the Amora'im regarding the status of the progeny of a union of a non-Jewish man and a Jewish woman. One opinion is that the child born of such a liaison is a mamzer while a second opinion maintains that the child is legitimate but, if a female, is forbidden to marry a priest. The Gemara, Yevamot 45b, concludes, \"The law is that if a non-Jew or a slave consorts with a daughter of Israel the child is legitimate.\" Ostensibly, that definitive ruling represents an adjudication of the earlier controversy and the term \"kosher\" or \"legitimate\" is used as the antonym of \"mamzer\" or \"bastard\" with the implication that the child is legitimate but nevertheless forbidden to a kohen as had earlier been stated. Rosh understands the Gemara in that manner and rules that the daughter is certainly forbidden to a kohen.",
+ "Rif, however, states that some authorities rule that the daughter is not only legitimate but permitted to a kohen as well. Presumably, the rationale underlying that position is that, since there is no halakhically recognized paternal-filial relationship between the biological father and the child, there is no basis for disqualifying her from marrying a kohen. The term kosher is understood by the authorities cited by Rif as \"legitimate\" in the fullest sense of the term and the dictum is understood by him, not as adjudication between two conflicting views, but as the expression of a third, previously unexpressed position, which is pronounced to be normative.",
+ "Ramban, Yevamot 45a, similarly asserts that the Gemara records three distinct views with regard to the status of such progeny and, although the Gemara clearly rules that the child is not a mamzer, there is no definitive ruling with regard to whether a daughter of such a liaison may marry a kohen. Since the issue remains a matter of doubt, Ramban rules that such a girl may not enter into marriage with a kohen but, post factum, if such a marriage has been celebrated, they cannot be compelled to divorce. Ramban ascribes that view to Rif as well. The view that Rif regards the matter as remaining in doubt is supported by the published text of Rif.",
+ "As previously noted, the prohibition against marriage of such a woman to a kohen is explicitly codified by Shulḥan Arukh in two places, Even ha-Ezer 4:5 and Even ha-Ezer 4:19. Both Helkat Meḥokek, Even ha-Ezer 4:3 and 7:26, and Bet Shmu'el, Even ha-Ezer 4:2 and 7:39, confirm Ramban's view in ruling that the daughter of such a liaison is forbidden to marry a kohen but, if already married, the couple need not be compelled to divorce. That ruling is explicitly accepted by R. Moshe Feinstein, Iggerot Mosheh, Even ha-Ezer, I, no. 6. R. Ovadiah Yosef, Teshuvot Yabi'a Omer, VII, Even ha-Ezer, no. 60, is in fundamental agreement with that position but rules that, since Ramban regards the status of such a woman to be doubtful, in the presence of a second \"doubt,\" e.g., the status of the prospective groom as a kohen is itself doubtful, the marriage may be permitted on the basis of sefek sefeika or \"double doubt.\"",
+ "The case heard by the bet din of Rehovot involved one additional consideration. Before applying for a marriage license the couple had been living together for a period of approximately one-and-a-half years and had announced that, if a license was denied, they would continue to do so without benefit of marriage. The issue of a kohen already living with the daughter of a Jewish mother and a non-Jewish father pursuant to civil marriage has been analyzed by R. Moshe Feinstein in his earlier-cited responsum and by the late Sephardic Chief Rabbi of Jerusalem, R. Shalom Mashash, Shemesh u-Magen, III, Even ha-Ezer, nos. 55 and 58.",
+ "Ramban's position that the status of such a woman is unresolved led him to rule that she may not marry a kohen but, if married, the couple cannot be compelled to divorce. That ruling seems somewhat contradictory. The couple is forbidden to marry because of the possibility of transgression. The selfsame possibility of transgression persists within an already contracted marital union. If so, would not logical consistency lead to the conclusion that, if married, they must divorce? A number of latter-day authorities have endeavored to resolve that perplexity.",
+ "One possible solution is that the prohibition is rabbinic in nature and the edict was not designed to apply post factum. However, the most cogent resolution is that advanced by Sha'ar ha-Melekh, Hilkhot Issurei Bi'ah 15:3. A divorce executed under duress by a bet din is valid only if there are halakhic grounds for coercion. However, asserts Sha'ar ha-Melekh, if the transgression is doubtful, it follows that the grounds for coercion are also doubtful. If so, argues Sha'ar ha-Melekh, a get cannot be compelled in cases of doubt born of halakhic controversy because its validity would perforce be a matter of doubt with the result that the woman could not be permitted to remarry on the strength of such a get. Nevertheless, as a matter of religious law, the parties themselves are forbidden to continue to live together as man and wife. Iggerot Mosheh accepts Sha'ar ha-Melekh's explanation in ruling that a religious ceremony may not be performed for such a couple despite the fact that they have been living together in an ongoing relationship pursuant to civil marriage. Sha'ar ha-Melekh's resolution of the problem is particularly compelling if it is accepted that the prohibition is biblical in nature.",
+ "Rabbi Mashash, on the other hand, in his previously cited responsum, was quite willing to permit marriage of such couples not only in situations in which a civil marriage had already taken place but also in situations in which the parties had already been sharing an abode. He bases his conclusion upon two considerations:",
+ "1) A Jew suspected of consorting with a non-Jewish woman may not marry her subsequent to her conversion. However, if they have already married he is not obligated to execute a get. There is significant controversy with regard to whether, in such a situation, civil marriage constitutes a post factum condition. Those opinions have been analyzed in detail by this writer in Contemporary Halakhic Problems, I (New York, 1977), 286-290. Rabbi Mashash chooses to cite only the permissive opinions and entirely ignores the opposing position. He then summarily equates the case of a union between a kohen and the daughter of a non-Jew with that of a Jew suspected of having had a sexual relationship with a non-Jewish woman.",
+ "Apart from the controversy with regard to the effect of civil marriage in the latter situation, according to Sha'ar ha-Melekh's explanation of the rationale underlying that provision in the case of a kohen, the two situations are obviously entirely dissimilar.",
+ "Rashi, Yevamot 24b, explains that the prohibition against a Jew marrying a convert with whom he is suspected of having had a liaison was promulgated in order to safeguard the honor and reputation of the husband since marriage under such circumstances is likely to lend credence to rumors of previous immorality. Accordingly, some authorities conclude that the prohibition does not extend to situations in which the couple have been living together publicly since in such cases previous immoral conduct is an established verity. Teshuvot ha-Rashba, I, no. 1,205, explains that, if the couple are suspected of having lived together previously, their marriage subsequent to conversion will lead to suspicion that the conversion itself was insincerely contrived for purposes of marriage. Accordingly, a number of authorities assert that, according to Rashba, if the couple have already established a permanent conjugal relationship, there can be no grounds for the suspicion that the conversion was insincerely entered into merely for the sake of marriage. Quite obviously, according to these lines of reasoning, in the case of a converted paramour, civil marriage or a longstanding conjugal relationship is not equated with a valid marriage as creating a post factum situation but is regarded as rendering the prohibition entirely nugatory.",
+ "2) Rabbi Mashash asserts, again quite unequivocally, that in both instances the prohibition is rabbinic in nature and hence lenience is in order in matters of doubt. It is certainly the case that the prohibition against marrying a proselyte in the situation described is rabbinic in nature but it is far from clear that such is the case with regard to a kohen and the daughter of a non-Jewish father. Indeed, if the prohibition is merely rabbinic and if, as Ramban maintains, the permissibility of such a marriage is a matter of doubt, it is difficult to understand why the marriage is not permitted even ab initio. R. Moshe Feinstein, Iggerot Mosheh, Even ha-Ezer, I, no. 5, depicts the prohibition as based upon doubt with regard to a biblical transgression. Nevertheless, Teshuvot Rema mi-Panu, no. 124, Helkat Meḥokek, Even ha-Ezer 7:26, Teshuvot R. Akiva Eger, no. 91 and Bet Me'ir, Even ha-Ezer 4:5, regard the prohibition as rabbinic in nature.",
+ "R. Shlomoh Amar, Shema Shlomoh, V, Even ha-Ezer, no. 8, endorses Rabbi Mashash's ruling and adds that, in a sexually promiscuous age such as ours, it is quite possible that the groom's mother may have engaged in sexual conduct that would serve to deprive any future progeny of the priesthood.",
+ "The bet din of Rehovot took note of the opinions of Rabbis Mashash and Amar but declined to accept them as authoritative. The matter was appealed to the Supreme Rabbinical Court of Appeals and, in a brief decision, the Court of Appeals simply cited the responsa of Rabbis Mashash and Amar, reversed the ruling of the rabbinical district court and \"requested\" the rabbinate of Rehovot to perform the marriage. One of the members of the panel hearing this case was R. Shlomoh Amar.",
+ "The halakhic authority of the Israeli Supreme Rabbinical Court of Appeals to reverse decisions of district courts is not at all clear. That issue has been discussed by this writer in Contemporary Halakhic Problems, IV (New York, 1995), 17-45. The theories offered in support of such authority are much more persuasive in matters of jurisprudence than in matters of religious law. The general rule \"If a scholar has prohibited another scholar dare not permit\" (Berakhot 63b, Avodah Zarah 77b, Hullin 44b and Niddah 20b) admits of exceptions in instances of clear error. It does, however, bar exercise of purely subjective discretion in choosing one set of precedents over another.",
+ "It is difficult to believe that any objective scholar would find Rabbi Mashash's reasoning absolutely compelling. It is impossible to fault the bet din of Rehovot for assaying greater weight to the responsa of Rabbis Feinstein and Yosef than to those of Rabbis Mashash and Amar. It is quite easy to conclude that the lower court's decision was overruled simply because Rabbi Amar chose to follow his own previously announced opinion.",
+ "Such a course of action might well be legitimate were Rabbi Amar able to allege a lack of cogency in the opposing view or to show that the weight of precedent contradicted the decision of the lower court. This he made no attempt to do. Mere preference for one set of precedents over another without a clear elucidation of doctrinal support is not the manner in which appellate review is carried out in the common law judicial system from which the Israeli system of rabbinic appellate review was adopted. Such a procedure strikes this writer as a misuse of appellate power.",
+ "Furthermore, there is some question with regard to whether the appellate jurisdiction of the Supreme Rabbinical Court extends to \"non-adversarial\" matters. In an unpublished decision issued in 5702, Index no. 1/46/701, the Supreme Rabbinical Court held that it had appellate authority in all matters. However, in a subsequent unpublished decision issued in 5716 the Supreme Rabbinical Court ruled that it had no authority to hear appeals in \"non-adversarial\" matters, i.e., in determining issues of Jewish religious law since such matters are not within the ambit of authority granted to the bet din by virtue of the applicable Israeli civil law. The issue before the court involved the conversion of a minor child by its Jewish father in face of the announced opposition of its non-Jewish mother. The district court declared that it was not acting by virtue of the powers vested in a bet din to adjudicate disputes but was simply announcing a matter of religious law. The Supreme Rabbinical Court ruled that such matters are not subject to appeal. The question of whether a daughter of a non-Jewish father is permitted to marry a kohen is similarly a non-adversarial issue of religious law.",
+ "Moreover, as cogently demonstrated by Iggerot Mosheh, even in circumstances in which the couple will continue to cohabit even without benefit of marriage, celebration of a wedding ceremony is tantamount to rabbinic license to commit an even graver transgression. According to many early-day authorities, cohabitation outside of marriage constitutes a rabbinic infraction. Rambam, Hilkhot Issurei Bi'ah 17:12, maintains that priestly conjugal prohibitions are biblically binding only within a marital relationship. Thus, according to Rambam, performance of a wedding ceremony transforms what would otherwise be a rabbinic infraction into a more serious biblical transgression.",
+ "It is, however, not inconceivable that the same result might have been achieved on the basis of other considerations. As pointed out by Rabbi Feinstein in his earlier-cited responsum, in Jewish law, cohabitation for purposes of marriage creates a marital relationship when such is the intention of the parties. Whether or not such intention is presumed in a relationship tantamount to common law marriage depends upon whether the presumption that couples do not engage in fornication when the option of a marital union is available is applicable in situations of the nature described. An analysis of that very complex issue is beyond the scope of the present discussion. Suffice it to say that a bet din, in appropriate circumstances, might reasonably have concluded that the existence of a valid halakhic marriage necessitating a get for its dissolution was at least a matter of doubt. Since, in the case of a kohen married to the daughter of a non-Jew, a get cannot be compelled, it should follow that the recalcitrant parties may not be prevented from regularizing their relationship by means of a formal marriage.",
+ "Sonograms and the Unborn Kohen",
+ "The verse \"Speak unto the priests, the sons of Aaron and say unto them….\" (Leviticus 21: 1) serves as a prefatory comment to the prohibition against priestly defilement through contact with a corpse. The Gemara, Yevamot 114a, takes note of the double expression \"speak\" and \"say unto them\" in declaring that Moses was instructed to transmit two prohibitions: 1) a commandment addressed to adult priests forbidding them to defile themselves; and 2) a directive commanding adults not to defile young priests who have not yet attained the age of halakhic majority. The latter prohibition is recorded in Shulḥan Arukh, Yoreh De'ah 373:1. Rema adds that the prohibition is limited to the performance of an overt act on the part of an adult causing defilement of the minor. As explained by Shakh, Yoreh De'ah 373:1, intervention to restrain a child from defiling himself is mandated only by virtue of a father's obligation with regard to ḥinnukh, i.e., \"training,\" and hence is limited to the child's father and, moreover, becomes applicable only at an appropriate age. The opinion of Baḥ, Yoreh De'ah 373, to the effect that even an infant must be prevented from defiling himself is not accepted by other authorities. However, Magen Avraham, Oraḥ Hayyim 343:2, and Mishnah Berurah 343:3 emphasize that actively causing defilement is forbidden even in the case of a child completely lacking in reason.",
+ "R. Eliezer ben Judah of Worms, Sefer Rokeaḥ, no. 366, declares that the pregnant wife of a kohen may enter a building in which a corpse is present by virtue of application of the principle of sefek sefeika, i.e., \"double doubt.\" There are two separate contingencies that would render defilement permissible, viz., perhaps the pregnant woman will miscarry because the fetus she is gestating is not viable and, even if the fetus is viable, perhaps it is a female. There is no prohibition against defiling either a non-viable fetus or a daughter of a kohen. However, Rokeaḥ certainly maintains that, in principle, it is forbidden to defile a fetus. Rokeaḥ's ruling is confirmed by Shakh, Yoreh De'ah 371:1.",
+ "Although Rokeaḥ's position is accepted as normative, there are reasons for stringency on the part of the wife of a kohen in refraining from coming into contact with a corpse. R. Chaim Chizkiyahu Medini, Sedei Hemed, ma'arekhet ha-samakh, sec. 71, cites a number of authorities who assert that, although it is permissible to rely upon a \"double doubt,\" it is nevertheless a meritorious act of piety not to do so.",
+ "Rokeaḥ's construction of this sefek sefeika is challenged by Pri Megadim, Oraḥ Hayyim, Eshel Avraham 343:2. Tosafot, Ketubot 9a, s.v. ve-i ba'it eima, declare that a doubt resolved by virtue of the principle of rov, or majority, does not constitute a cognizable doubt at all. Tosafot opine that the occurrence of rape generally becomes known to the public. Hence, in a significant majority of all sexual acts that do not give rise to reports of rape, intercourse is willful. Accordingly, declare Tosafot, the contingency of rape cannot be deemed a matter of doubt for the purpose of constructing a sefek sefeika. Similarly, argues Pri Megadim, the majority of pregnancies result in viable neonates; hence the possibility of miscarriage should not constitute a doubt for purposes of generating a sefek sefeika.",
+ "R. Moshe Sofer, Teshuvot Hatam Sofer, Yoreh De'ah, no. 354, resolves that difficulty by pointing out that the principle of rov serves, in and of itself, to determine that in the majority of cases the woman commits no transgression in causing her fetus to be defiled. Fifty percent of all fetuses are female while some fetuses are not viable. The result is that in any given pregnancy there is less than a fifty percent chance that defiling the fetus entails a forbidden act. Although Rokeaḥ invokes the principle of sefek sefeika rather than rov, Hatam Sofer asserts that the principle involved is indeed that of rov and that Rokeaḥ's nomenclature is merely unfelicitous. There are indeed two separate factors to be considered—and hence Rokeaḥ's use of the term sefek sefeika—the possibility of a female fetus and the possibility of a nonviable fetus; however the two factors combine not to generate a sefek sefeika, but to generate a rov.",
+ "Acceptance of the thesis that Rokeaḥ is expressing the concept of rov rather than sefek sefeika yields yet another ramification. The putative practice of not relying upon a \"double doubt\" does not apply to not relying upon rov. Hatam Sofer himself, Oraḥ Hayyim, no. 83, forcefully comments, \"He who commanded and admonished us with regard to the treifah is He who commanded us to rely upon rov.\"",
+ "Magen Avraham, Oraḥ Hayyim 346:2, takes issue with the basic principle upon which Rokeaḥ's comment is based. As noted, Rokeaḥ assumes that it is forbidden to cause defilement not only to a minor but also to a fetus. Magen Avraham challenges that assumption on technical grounds. One of the principles governing defilement as recorded in the Mishnah, Oholot 5:4, is that a \"swallowed\" (balu'ah) object can neither defile nor become defiled. Thus, for example, if a person swallows a metal ring and then enters a room in which a corpse is present, the ring is not subject to the regulations governing ritual impurity. The fetus, argues Magen Avraham, is \"swallowed\" within the mother's body and hence is not subject to defilement. If so, there is no reason why the pregnant wife of a kohen may not come into contact with a corpse.",
+ "R. David ibn Zimra, Teshuvot Radvaz, I, no. 200, resolves the problem by postulating that Rokeaḥ's concern was limited to situations involving a pregnant woman approaching term. In such situations there is reason to fear that labor may commence at any time and hence that the child's head may enter the birth canal in the early stages of parturition while the woman is yet under the same roof as the corpse. Since, for purposes of Jewish law, the child is considered to be \"born\" when the major portion of the forehead enters the birth canal, the child would no longer be deemed \"swallowed\" within the mother's abdomen and hence would become subject to defilement. A similar observation is made by Netiv Hayyim in a marginal comment on Magen Avraham, ad locum. According to those authorities, Rokeaḥ had no need to justify contact with a corpse on the part of a pregnant woman during earlier periods of gestation since the fetus will assuredly remain entirely within her body; the need for justification was limited to the final stage of pregnancy when there is reason to fear that the infant's head may emerge.",
+ "R. Jacob Emden, She'ilat Ya'avez, II, no. 177, advances a completely opposite interpretation of Rokeaḥ's position. She'ilat Ya'avez contends that Rokeaḥ's comment is designed to justify contact with a corpse only during early stages of pregnancy but that, according to Rokeaḥ, the pregnant wife of a kohen is indeed forbidden contact with a corpse during the ninth month of pregnancy. As does Hatam Sofer, She'ilat Ya'avez dismisses the notion of sefek sefeika on the grounds that, since the majority of pregnancies do not result in either a miscarriage or stillbirth, the possibility of a non-viable fetus does not constitute a halakhically cognizable doubt. Hence contact with a corpse during the ninth month, when emergence of the forehead is a distinct possibility, is forbidden. Rokeaḥ, he contends, was concerned with establishing the permissibility of such contact only during earlier stages of pregnancy.",
+ "Such justification is necessary, argues She'ilat Ya'avez, because, in order to obviate error and confusion, the Gemara, Hullin 72a, in a different context, extends the rules cogently applicable during the ninth month of pregnancy to earlier stages of pregnancy as well. Ostensibly, that consideration should also apply in the case of a pregnant wife of a kohen. Accordingly, explains She'ilat Ya'avez, Rokeaḥ intended to explain that contact with a corpse is not prohibited during earlier stages of pregnancy lest the pregnant woman assume that such contact is permitted during the final stages of pregnancy as well. She'ilat Ya'avez asserts that Rokeaḥ reasons that no such ban is applicable because of the remote nature of the concern, i.e., there is no actual concern in the earlier stages of pregnancy because the fetus' head is unlikely to emerge from the uterus and, even were the woman to place herself in such a situation during the final stages of pregnancy, the fetus may be either female or nonviable. In effect, as does Hatam Sofer, albeit for a different reason, She'ilat Ya'avez understands Rokeaḥ as declaring simply that the contingency that is the subject of concern is remote and hence not a matter of halakhic concern, but not as contending that the principle of sefek sefeika is technically applicable.",
+ "R. Chaim Joseph David Azulai, Birkei Yosef, Oraḥ Hayyim 343:4, rejects the applicability of the principle of tum'ah balu'ah on the basis of the talmudic opinion, Gittin 23b, that maintains that the fetus is deemed to be an integral part of the mother's body (ubbar yerekh imo). As recorded by R. Jacob Ettlinger, Teshuvot Binyan Ẓion, no. 96, R. Pinchas Shiffer, writing to Rabbi Ettlinger, explains that Birkei Yosef's contention is that the fetus cannot be considered to be \"swallowed\" since it is an integral part of the mother's body. Nevertheless, since the gender of the fetus is male rather than female, the fetus is subject to the rules governing defilement.",
+ "Binyan Ẓion dismissively rejects that understanding of Birkei Yosef on the grounds that to declare the fetus to be an integral part of the mother's body but to have the status of a male is a contradictory assertion. Hatam Sofer, in his previously cited responsum, without citing Birkei Yosef, reports that he had earlier considered the issue of tum'ah balu'ah as inapplicable, at least prior to commencement of labor, because of the principle ubbar yerekh imo. However, upon reflection, Hatam Sofer declares that he has reversed his earlier view because of the pronouncement of the Gemara, Yevamot 67a, that \"a fetus in the womb of a non-kohen is a non-kohen,\" i.e., priestly status, and hence the applicability of the prohibition against defilement, devolves upon the fetus only upon parturition.",
+ "R. Moshe Sternbuch, Teshuvot ve-Hanhagot, I, Yoreh De'ah, no. 679, quotes the Brisker Rav, R. Yitzchak Ze'ev Soloveitchik, as advancing an entirely opposite view in stating that a male fetus does indeed have the status of a kohen. The statement of the Gemara to the effect that the fetus is not a kohen is limited, he contends, to laws of terumah, viz., although the mother of a kohen may partake of terumah, a women carrying a fetus who is a kohen may not partake of terumah. The fetal kohen, according to this analysis, enjoys the status of a kohen, particularly with regard to matters of defilement, but is not a kohen who can cause his mother to become eligible to partake of terumah.",
+ "Minḥat Hinnukh, no. 263, espouses a diametrically opposed position in maintaining that even were the fetus to be regarded as rendering its mother eligible to partake of terumah, the fetus itself, since it is an integral part of the mother's body, is not subject to strictures concerning defilement.",
+ "Binyan Ẓion himself offers a novel interpretation of Birkei Yosef's position. The fetus, as an integral part of the mother's body, becomes defiled together with its mother. But since there is no prohibition against defilement of the mother, such defilement as part of the mother's body is entirely innocuous. However, defilement to which a fetus is subjected during pregnancy persists subsequent to parturition. Accordingly, contends Binyan Ẓion, Rokeaḥ was concerned that upon birth it becomes retroactively clear that, in coming into contact with a corpse while pregnant, the mother caused prohibited future defilement of a kohen. Although no transgression is incurred until the fetus is actually separated from the mother, the earlier act causing future defilement of a kohen would be prohibited save for the principle of sefek sefeika.",
+ "Avnei Milu'im 82:1 dismisses the issue of tum'ah balu'ah by citing the rule that immersion of a pregnant woman for purposes of conversion ipso facto constitutes immersion of the child as well despite the fact that the mother's body serves as a ḥazizah, or interposition, preventing the water of the mikveh from coming into direct contact with the child. The Gemara, Yevamot 88b, explains that the mother's body is not an interposition because \"that is the way it grows\" (hainu reviteih), i.e., only a foreign object constitutes an interposition whereas the mother's body in which the fetus gestates is hardly alien to the fetus.",
+ "In effect, Avnei Milu'im postulates that the reason a \"swallowed\" object is not subject to defilement is because the object in which it is encased serves as an interposition between the object and the source of defilement. The mother's body, however, does not constitute such an interposition.",
+ "R. Samuel ha-Levi Woszner, Teshuvot Shevet ha-Levi, II, Yoreh De'ah, no. 25, challenges Avnei Milu'im's equation of the principle of tum'ah balu'ah with the notion of interposition. The Mishnah, Niddah 43b, declares that a newborn child can become defiled through contact with a corpse. The Mishnah clearly excludes defilement of the fetus in utero. As explained by Mishnah Aḥaronah, ad locum, the reason is that prior to parturition the fetus is \"swallowed\" within the womb and, accordingly, is not subject to defilement. Hence, Magen Avraham's puzzlement with regard to Rokeaḥ's comment is well-founded.",
+ "R. Elchanan Wasserman, Kovez Shi'urim, II, no. 41, resolves the problem in a highly original manner. Reb Elchanan maintains that a kohen is forbidden contact with a corpse even in circumstances in which he does not becomes defiled. In support of that thesis he cites the halakhic provision prohibiting a kohen from being in the same building as a goses, i.e., a moribund person, despite the fact that the kohen does not become defiled by virtue of his presence in that building. A fetal kohen \"swallowed\" in his mother's body, contends Reb Elchanan, is indeed in the same building as the corpse and is forbidden to be in that building even though he does not thereby become defiled.",
+ "At present, many obstetricians perform sonograms upon pregnant women for cogent medical reasons. Although performed for other purposes, such sonograms generally reveal the gender of the fetus. If the fetus is a male, and its gender is disclosed to the mother, Rokeaḥ's sefek sefeika no longer exists since the fetus is known with virtual certainty to be male. Obviously, according to Radvaz, Hatam Sofer and Netiv Yam who assert that Rokeaḥ was concerned only with regard to a woman in labor or approaching term, there is no problem with regard to defilement during earlier stages of pregnancy. However, according to the authorities who regard a sefek sefeika to be necessary even during earlier stages of gestation, the wife of a kohen whose sonogram has revealed that she is carrying a male fetus would be forbidden to come into contact with a corpse other than in situations of pikuaḥ nefesh.",
+ "The situation of a woman who has undergone a sonogram but who has not been informed of the fetus' gender is somewhat different. To her, there is a sefek sefeika but one of those doubts might be resolved by means of a simple inquiry. Pri Megadim, Siftei Kohen, Yoreh De'ah 110, Kelalei Sefek Sefeika 35:66, rules that when \"mere inquiry\" would resolve the doubt, it is obligatory to solicit such information. The crucial question, now that sonograms are available, and if they are to be regarded as posing no hazard to the health of either the mother or the fetus, is whether the pregnant wife of a kohen is obligated to undergo a sonogram before coming into contact with a corpse. Shakh, Yoreh De'ah 110, Kelalei Sefek Sefeika, sec. 35:66, records two opinions with regard to whether a sefek sefeika may be relied upon in circumstances in which the \"double doubt\" may be dispelled on the basis of examination or investigation. Shakh rules that it is necessary to be stringent \"when [it is] possible and no loss is incurred.\" R. Shlomoh ha-Kohen of Vilna, Teshuvot Binyan Shlomoh, no. 13, similarly maintains that a sefek sefeika that may be resolved cannot be relied upon. Nevertheless Shakh rules that no investigation is necessary if such investigation would entail expense. A sonogram, presumably, does entail such an expense.",
+ "R. Ezekiel Landau, Teshuvot Noda bi-Yehudah, Mahadura Kamma, Yoreh De'ah, no. 43 and no. 97, maintains that even the authorities who require resolution of the doubt posed by a sefek sefeika when such doubt can be resolved by inquiry or investigation do so only when both doubts can be resolved, but not if one of the doubts will persist even subsequent to the investigation. In the case of a pregnant woman, the doubt with regard to the viability of the fetus would indeed remain since it is not dispelled by means of a sonogram. However, according to Hatam Sofer's understanding of Rokeaḥ, since the vast majority of fetuses are viable, the operative consideration is not sefek sefeika but the consideration that the majority of fetuses are not viable males. According to Hatam Sofer, the principle actually relied upon is that of rov. The general rule is that a rov may be relied upon even when examination is possible except in instances in which there is a mi'ut ha-mazui, i.e., a significant number of exceptions to the rov. The incidence of viable male fetuses is certainly a mi'ut ha-mazui and, accordingly, examination for gender should be required according to Hatam Sofer. If the fetus is shown to be male, the principle of rov serves to establish that the overwhelming majority of fetuses are viable.",
+ "Examination for a mi'ut ha-mazui is required only when such examination is possible. Thus, for example, Shulḥan Arukh, Yoreh De'ah 39:2 rules that a slaughtered animal whose lungs have been lost or misplaced prior to examination for adhesions may be regarded as kosher on the basis of rov. It is certainly not permissible to perform an ultrasound test solely to determine gender if the procedure is accompanied by any cogent medical risk, with the result that such examination is, in the halakhic sense, \"impossible.\" A determination regarding the safety of the procedure can be made only by a physician familiar with the available data and is subject to revision as more information becomes available."
+ ],
+ "Chapter 12 The Case of the Poisoned Sandwich": [],
+ "Chapter 13 Cadavers on Display": [],
+ "Chapter 14 A $25,000,000 Funeral": []
+ },
+ "schema": {
+ "heTitle": "בעיות הלכתיות עכשוויות, כרך ו",
+ "enTitle": "Contemporary Halakhic Problems, Vol VI",
+ "key": "Contemporary Halakhic Problems, Vol VI",
+ "nodes": [
+ {
+ "heTitle": "הקדמה",
+ "enTitle": "Preface"
+ },
+ {
+ "heTitle": "מבוא",
+ "enTitle": "Introduction"
+ },
+ {
+ "heTitle": "פתיח",
+ "enTitle": "Prelude"
+ },
+ {
+ "heTitle": "פרק א: עינויים ו'הפצצה המתקתקת'",
+ "enTitle": "Chapter I Torture and the Ticking Bomb"
+ },
+ {
+ "heTitle": "פרק ב: הצלת רבים במחיר חיי מעטים",
+ "enTitle": "Chapter 2 Sacrificing the Few to Save the Many"
+ },
+ {
+ "heTitle": "פרק ג: בעקבות ברכת החמה ה' תשס\"ט",
+ "enTitle": "Chapter 3 In the Wake of Birkat ha Hammah 5769"
+ },
+ {
+ "heTitle": "פרק ד: היתר עסקה והערכאות האמריקאיות",
+ "enTitle": "Chapter 4 The Hetter Iska and American Courts"
+ },
+ {
+ "heTitle": "פרק ה: רשלנות רפואית בהלכה",
+ "enTitle": "Chapter 5 Medical Malpractice and Jewish Law"
+ },
+ {
+ "heTitle": "פרק ו: שאלות רפואיות",
+ "enTitle": "Chapter 6 Medical Questions"
+ },
+ {
+ "heTitle": "פרק ז: כשרות המים של ניו יורק",
+ "enTitle": "Chapter 7 New York City Water"
+ },
+ {
+ "heTitle": "פרק ח: טפילי דגים",
+ "enTitle": "Chapter 8 Piscatorial Parasites"
+ },
+ {
+ "heTitle": "פרק ט: האם החלב שאנו שותים כשר?",
+ "enTitle": "Chapter 9 Is the Milk We Drink Kosher"
+ },
+ {
+ "heTitle": "פרק י: האכלת עגלים בתחליף חלב",
+ "enTitle": "Chapter 10 Formula Fed Veal"
+ },
+ {
+ "heTitle": "פרק יא: עניינים הנוגעים לכוהנים",
+ "enTitle": "Chapter 11 Issues Concerning Kohanim"
+ },
+ {
+ "heTitle": "פרק יב: הכריך המורעל",
+ "enTitle": "Chapter 12 The Case of the Poisoned Sandwich"
+ },
+ {
+ "heTitle": "פרק יג: תצוגת גופות",
+ "enTitle": "Chapter 13 Cadavers on Display"
+ },
+ {
+ "heTitle": "פרק יד: לוויה ב 25 מיליון דולר",
+ "enTitle": "Chapter 14 A $25,000,000 Funeral"
+ }
+ ]
+ }
+}
\ No newline at end of file