For almost four and a half years, R. Gil Student and you readers have allowed me to pursue what started out as a lark, finding a responsum written on every possible day of the Jewish calendar. This responsum marks the last one I will summarize in this forum (I have summarized them all in audio shiurim at the OU website, and written summaries are at my yeshiva.academia.edu website); I am in the late stages of a first draft of the book these responsa have led me to, and there are few enough left for me to try to ferret out which ones I have not yet shared here.

After Sukkot, I hope to embark on a new project on Onkelos’ translation of the Torah. Meanwhile, I wanted to pause and thank my host, R. Student, and all of you for reading, reaching out (grothst is my gmail address), and allowing me to think out loud as I got to know great rabbinic figures of our past, and came to understand the process of halakhic ruling better than I had. Thank you.

3 Tishrei: Tzitz Eliezer on Joining Kedushah While in the Midst of One’s Own Tefillah

Tzitz Eliezer 12;49, dated Tzom Gedalya 5735 (1974) responds to an unnamed Torah scholar on an issue particularly relevant to the Yamim Noraim, the High Holidays, when we extend the third berakha of the Amida (we add paragraphs, starting with u-ve-khen ten pahdekha, And so instill Your awe among all the nations).

Personal Prayer at Length

That extension makes possible a situation unlikely to arise the rest of the year, an individual might be still reciting the third berakha of the Amida when the hazzan reaches kedusha [usually, the berakhah’s so short it’s not really an issue. Particularly on the High Holidays, when some people also pay more attention to their prayers, it’s imaginable a man would be reciting these paragraphs when the hazzan reaches kedusha. Although it does mean this man took a really long time for his private prayer, since the hazzan’s repetition includes piyyutim, liturgical poems, extending the time until he reaches kedusha].

The first aspect of the question to remember is halakha’s comfort with an individual answering to kedusha despite being in the middle of his/her private prayers, as long as s/he is within the first three berakhot of the Amida—the person joins the hazzan in reciting the berakhot, then says kedusha with the community. Here, though, the individual is past the kedusha point, but still within the same berakhah.

The questioner had looked a bit, but had not found anyone who dealt with this.

First Instincts Aren’t Always Right

Tzitz Eliezer says a long search led him to a comment in a sefer called Me’orer Yesheinim (The Awakener of the Sleeping). That author allowed joining the communal kedusha even if the person was already about to recite the berakhah of Ha-Melekh HaKadosh. Tzit Eliezer agreed at first, then had second thoughts.

He reminds us the practice of joining kedusha while still in one’s private Amida isn’t found in the Gemara, it was an innovation of R. Hai Gaon’s, cited by Rif, Rambam, and Shulhan Arukh (Orah Hayyim 109). As a post-Talmudic source, Tzitz Eliezer thinks it is limited to what it says, cannot be a basis for extrapolation.  (We could apply a principle of the Gemara’s to reasonably similar cases. A new Geonic idea, without clear sourcing, teaches us only what it teaches us.)

Rashba in responsum 1;158 laid the groundwork for this approach with his explanation for why he held an individual who finds him/herself in the silent Amida cannot join if the community is up to the later kedusha de-sidra, the recitation of kedusha in the collection of verses of U-va le-Tziyyon. The questioner thought the fact of the words being the same as if the community were up to the regular keduash— kadosh, kadosh, kadosh—should allow it.  

Rashba gives two reasons against. First, despite the words, he holds the two experiences of communally announcing Hashem’s kedusha differ. As interesting as the answer is, as allusive as it is about the roles of the different parts of davenen, of the liturgy, our question is about the kedusha in the same part of the prayers.

It’s Rashba’s second reason that helps Tzitz Eliezer. Rashba precedes Tzitz Eliezer in saying we cannot extend R. Hai Gaon’s idea further than R. Hai himself. His also understands R. Hai to have said his idea only when the individual is at the same place in the prayer as the hazzan and says it word for word with the hazzan. (Rashba’s ruling is codified in Orah Hayyim 109;3, where Shulhan Arukh rules out joining even the kedusha of Mussaf, the additional prayer, if the individual is really at Shaharit, the morning prayer; later in the responsum, Tzitz Eliezer quotes Meiri to make the same point about a person up to Ma’ariv joining the kedusha of a community saying Minha. Joining the kedusha of a different prayer is not allowed).

Different Places, Different Themes

In the Rosh HaShanah case, the individual is at the end of that third berakha, where the hazzan is just finishing the second. To Tzitz Eliezer, the gap means the person does not meet Rashba’s standard of “being in the same place,” especially since, as we said, these paragraphs can take a long time to recite.

They’re also thematically distant. Kedusha is about declaring Hashem’s sanctity (or whatever the right translation is),  a theme we stress at the beginning and end of the berakha (during the Yamim Noraim, we end the berakha with a small paragraph that starts kadosh Ata, You are sanctified, to fulfill the requirement to return to the berakha’s main theme as we end it).

These added middle paragraphs, while they fit within the berakha (although Tzitz Eliezer feels the need to refer us to Kol Bo and Tur to see exactly how they’re related to Hashem’s sanctity), are not directly about it, giving another reason to say it’s an interruption for the individual to jump from there to kedusha. Tzitz Eliezer also dislikes the idea the person will say kedusha and then repeat the third berakha from the beginning, rendering futile the first go-around on those words [and halakha avoids a tefillat or birkhat shav, a futile prayer or blessing.

Returning to where s/he stopped is such a non-starter Tzitz Eliezer doesn’t discuss it, I think because there’s no time we interrupt a private Amida to join the community, and then return to where we were].

These issues are what led Rema to allow this strategy only where the individual cannot wait, answer, and then start his/her prayer. Leket Yosher restricted it further, prohibiting an individual from waiting for the community to catch up; if the individual reaches Mehaye HaMetim (the end of the second berakha, with kedusha to immediately follow) as the hazzan starts his repetition, Leket Yosher requires the individual to keep going.

All this shows how limited this strategy is, such that Tzitz Eliezer thinks it might only be where the individual can start exactly with the hazzan and recite the first part of the Amida word for word with him, how Rambam described the procedure.

Nearby Minyanim, Such as at the Kotel

The question arises even more frequently at the Kotel, where multiple minyanim abut, making it fully plausible an individual would be reaching Mehaye HaMetimjust as the minyan next to him gets there as well—should he answer their kedusha? Tzitz Eliezer says no, that’s not his prayer service, nor did he recite the first two blessings word for word with their hazzan. He notes Hessed Le-Avraham, an abbreviated Shulhan Arukh written by R. Eliezer Papu (the early 19^th century rabbi of the Sephardic community of Silistra, a port city in northeast Bulgaria), raised this question and was uncertain about the answer.

Kaf HaHayyim ruled the individual could answer the other minyan’s kedusha, but Tzitz Eliezer was unconvinced. Kaf HaHayyim inferred his position from Shulhan Arukh, a text Hessed Le-Avraham knew as well, so if he was unsure, those were apparently not full proofs. [Although not necessarily—it could be Kaf HaHayyim thought of inferences Hessed Le-Avraham had not, but would have conceded had he heard them.]. For Yamim Noraim, Tzitz Eliezer was even more sure the individual could not join a nearby minyan when his own is going to get there soon.

The one circumstance where he agrees is if the individual in fact started with the neighboring hazzan, said the Amida word for word, and then—by force of habit—started the third beracha (ata kadosh) rather than going into kedusha. There, Tzitz Eliezer allows him to go back, say kedusha with the minyan, then repeat ata kadosh.

This is an example of a ruling I’m not sure is the general consensus. But our role in this series has been to learn from great poskim, great halakhic authorities, whether or not the particular view becomes the mainstream view. Here, Tzitz Eliezer was confident R. Hai Gaon’s idea the individual could join the community was only where s/he joined from the start, and could not be expanded.

25 Elul: R. Herzog on Whether We Are Doing Converts a Favor

The 25^th of Elul is the anniversary of a responsum R. Yitzchak Herzog wrote (Heichal Yitzchak Even haEzer 1;20) whose topic was conversion, with ramifications for our looming confrontation with Gd on the High Holidays, the Yamim Nora’im. The question is about a Jewish man who had lived for years in a civil marriage with a non-Jewish woman (German speaking, we will see, but I find it hard to imagine she was hoping to convert to Judaism in Germany in 1941!).

The continuation of this woman’s job became, at some point, dependent on her converting to Judaism (again, the question does not make clear what job required that), and so she did. With her conversion, can they be married Jewishly, as they have requested?

If She’s Jewish, Why Not?

In one sense, the answer is fairly simple, and R. Herzog gives it. Having converted, there is no reason for them not to then be married. The more complicated issue is whether she should have been converted at all.  As the questioner notes, Yevamot 24b tells us not to convert anyone, male or female, whom we suspect of doing so for the sake of marrying a Jew.

Already in the mid-1800s, R. Shlomo Kluger had found reasons to be lenient about the issue.  Further, and more relevant to this case, Rambam had allowed a man living with his non-Jewish maidservant to free her and convert her to Judaism, because it would avoid the various transgressions involved in living with a non-Jew.  He laid the groundwork for R. Herzog to suggest rabbis can decide case by case, can calculate the overall cost/benefit of refusing to convert the desired non-Jew, or welcoming him/her into the Jewish people.

In this case, he sees more room to accept her conversion, because the stricture had done nothing to stop them from marrying. With the pair living together anyway as a married couple, the Gemara’s concern no longer makes sense, all the more so with her having converted for a completely separate reason.

Now for the Harder Part

Thus far, he has matched what I suspect is our instinct, to encourage the couple’s desire to marry as Jews. Then he points out important challenges of the problem I think we may forget. First, he notes his surprise the bet din, the court, would convert a woman doing so for the sake of a job (R. Herzog refers us to Mishneh Torah, where Rambam records halacha’s opposition to converting  anyone with any ulterior motive; the exception for couples had to do with the upside/downside calculation, especially with a Jew already involved; for a job, that wouldn’t seem to be as true).

Be that as it may, R. Herzog adds that, he assumes the court had been sure to ascertain she had resolved to observe the commandments and her belief in the One Gd.  This is one line he draws, among others and caveats we will get to in a moment, but to me it is a striking one: whatever a court’s decision about motivations for conversion to accept, it cannot dispense with a sincere commitment to mitzvot and especially to a recognition of the Gd in Whom Jews believe.

Before he takes up those issues in more detail in the second part of the responsum, R. Herzog reminds the rabbi he must give them—before he conducts their marriage– educational material, in Hebrew and in German, about the laws of niddah, commonly called the laws of family purity.  [I wonder whether today R. Herzog would have added other educational materials for them to know as husband and wife, such as how to treat each other, how to build a loving and respectful home, how to educate children.]

Accepting Mitzvot As Part of a Conversion

R. Herzog could have stopped there. Instead, he launches into a second part with the words, “I went back to think about it some more, and it is hard in my eyes [hard for me to understand]” how the converting court oversaw her conversion for the sake of continuing a job.  While he knows the Gemara ratified all sorts of less-than-perfect conversions after the fact—meaning, the Gemara rules they should not be done, but if they were, the convert is, indeed, Jewish– including those with an ulterior motive, R. Herzog questions whether the rule would still apply today.

The kicker, in his mind, is whether we can assume the convert has made a real kabbalat ha-mitzvot, a genuine commitment to observing the rules of the system (without that, he is not convinced the conversion takes effect, regardless of her going to mikveh and/or a court declaring her to be Jewish. Rambam has a line where he seems to assume it does work, but R. Herzog thinks he means only we have to worry there was a kabbalat ha-mitzvot. Without commitment, there is no conversion, he seems to be sure everyone agrees).

In the times of the Talmud and even rishonim, Torah scholars of pre-1500, he writes, almost all Jews adhered to a certain base level of observance.  I might be tempted to argue the historical accuracy of the claim, but his specific point works: he says a convert’s outwards statement of accepting mitzvot almost certainly extends sincerely to all observances all Jews around the potential convert keep (if all Jews had a beard, for example, we might worry whether the convert really intended to worship Gd, but we’d be pretty sure he was committing to wearing a beard).

In R. Herzog’s time and ours, plenty of prominent Jews, including national leaders (remember—he’s living in Israel in 1941, when the leading Zionists were almost all nonobservant) had not a shred of observance.  If so, the convert could easily assume, whatever s/he told the conversion court, there was no practical need to observe mitzvot as part of a Jewish community.

Conversion Without Observance Is No Great Favor

Another challenge he raises: such a conversion is no longer clearly better than leaving the non-Jew as a non-Jew. The questionable conversion poses problems for the Jewish people as a whole, who must worry the convert is not actually Jewish; for a female convert, if her incomplete acceptance of mitzvot invalidates her conversion, any future children will be non-Jewish [I was recently exposed to a case where the Jewishness of the child of a convert of questionable observance is central to the case at hand].  The community, though, will assume they’re Jewish, and we’d have an admixture of non-Jews in the population.

In this case, the woman’s conversion helps the husband, who is no longer living with a non-Jew.  If she does not observe commandments, especially the rules of niddah, family purity, they will be violating much worse prohibitions than when she was not Jewish. For her, the same will be true of issues like kashrut, observing Shabbat, etc. Before, a cheeseburger was food; now, it’s a violation [my example].

At a purely practical level, in other words, he doubts whether converting this woman helps either of them. From a world where she was obligated only in the Noahide commandments, and he was violating the prohibition of living with a non-Jew, the court turns her into a woman permanently obligated to fulfill commandments and avoid prohibitions she has no intention of doing. By Torah law, many of these carry significant punishment. [You could make the same point, I would argue, even if the convert thinks he or she is committing to observance, but with a flawed sense of what that is.  Take a convert who attaches to a not particularly observant community. The convert might assume, regardless of what the rabbi says, s/he only has to do what the rest of the community does. If that community regularly violates Shabbat, despite leaders’ remonstrations, this convert will have been drawn into a regular transgression for which s/he would never have been liable before!]

There are all sorts of counterarguments, and R. Herzog is aware of them. He is not saying the conversion was clearly wrong, he was saying it is a lot more delicate of an undertaking than we sometimes take into account, both in the ideal sense and the practical one.  Ideally, we’d like all converts to do so only for the purest of motives, but even at the most pragmatic level, converting those who aren’t truly fired up to keep the Torah hurts all of us.

Turning Our Minds to Rosh haShanah

While we are not converting this Yamim Noraim season, many of the same questions can be turned on us:  What is our level of sincerity in our relationship with God? Do we ourselves agree to observe mitzvot, remember our religion’s insistent assertion of a single, unitary, and unique God? And, most important, do we realize our kabbalat ha-mitzvot has to be complete, a readiness and an interest in observing whatever God told us, and to keep striving to get closer to fulfilling that ideal? Ideas I offer with best wishes we all be written immediately and soon in the Book of Life, with good health, prosperity, and all good tidings.

Teshuvot In a Geometric Progression: R. Moshe Feinstein on 18 Elul

R. Moshe Feinstein, zt”l, wrote four teshuvot on the 18^th of Elul two, four, and eight years apart (by the time sixteen years had passed, when he was due to write the next one, he had passed away).  Let me briefly review them.

Younger Brother Marrying First?

In Even Ha-Ezer 2;1, written in 5722 (1962), R. Feinstein deals with a young man engaged to be married, whose future father-in-law wants the wedding to happen before the groom’s twentieth birthday, an age the Talmud gives as one of the later points to marry (a topic for another time). The groom’s unmarried older brother felt that insensitive to him, said he would be embarrassed and hurt by his brother marrying first.

I was not surprised R. Feinstein ruled in favor of the younger, I was surprised by what seemed to me his astute perspective. He notes the older brother’s feelings are a matter of his choice of how to react to the events, and he, R. Feinstein, sees other ways to take it. People wait to marry for many valid reasons, such as wanting to study Torah without family responsibility, or to build a financial nest-egg to be able to support a family comfortably. The older brother’s differing choices from his brother’s are no reason to be embarrassed.

R. Moshe also makes a point about marriage we can both take too far and forget too much– he notes the choice element in the brother’s not yet marrying. If the older brother really wanted to get married, he could, by going down a level or two from whatever standard he thinks he deserves.  R. Moshe does not define the standards and levels (nor does he urge the brother to expand his search), but he is saying when people have trouble finding a spouse, they most often mean a spouse appropriate for them, someone who matches their sense of what they deserve. R. Feinstein does not object, does not imply the older brother is being overly picky or should adjust his standards, he only points out it should take away any embarrassment from not yet being married—he is not unmarried because he’s unable to get married, he’s unmarried because he chooses to stick to certain standards.

There is also, R. Feinstein points out, an element of prohibited jealousy, as there is in the older brother’s claim/threat he might become ill if his brother goes through with the wedding. Halacha neither expects, asks, nor encourages Jews to allow others’ qualms about others’ success to get in the way of that success, financial, spiritual, academic, or otherwise.

I like the responsum because I agree with many of its premises, so I am not the best judge, but I would repeat those basic ones here: we are not allowed to be jealous of others, we are not allowed to carp at others’ success because we have not yet succeeded, we are not allowed to let our embarrassment over our failures (which we may be miscategorizing) to interfere in others’ happiness, and we must not use emotional blackmail to hinder others’ positive progress.

Year-Round Storage and Shehehiyanu

The second responsum, Orah Hayyim 3;34, written in 5724 (1964) wonders whether the year-round availability of fruit (apples, e.g.) changes their shehehiyanu status.  A simple rule for reciting the blessing over new fruits says it must be mithadesh, seasonal, regardless of how frequently the individual eats them.  If apples are now available year-round, would we never say shehehiyanu on them?

I don’t have the room here for all of R. Feinstein’s reasoning, but he makes an interesting distinction between means of preservation readily accessible to all—such as a cold cellar, where potatoes stay well—and those involving technological innovation and expertise (storing apples well enough that they stay, or finding ways to transport them worldwide without spoilage). The former he sees as part of nature, and therefore would change our picture of their growing season.

In addition, dietary staples are less likely to incur the blessing, as they are part of our lives at all times, where fruit are more like a snack, a tasty enrichment as opposed to a necessity.  of our dietary taste, but not a necessity.  The add-ons to our diet, which also generally require more sophisticated storage procedures, would stimulate a new shehehiyanu each time the season ends.  [I think he means the growing season; he does not here discuss what happens when new methods allow growing certain foods year-round).

Women’s Education: Can We Pay It Off With Ma`aser Money?

Four years later, 5728 (1968) in a responsum printed in Yoreh Deah 2;113, R. Feinstein was asked about using ma`aser money—the tenth of one’s income Jews try to give to mitzvah causes—for a daughter’s education. The questioner knew not to use the money for pre-existing obligations (such as giving gifts to the poor on Purim), and therefore knew boys’ schooling, a Biblical obligation on a father at least to teach them the Written Torah, could not be included.

What about girls?

R. Feinstein has two reasons to reject the idea. First, the father does have to educate his daughters. Perhaps not in Torah, per se, but there is an absolute obligation to raise girls to be God-believing and God-fearing, to know and care a Jew’s life is meant to be lived in service to God, and to avoid prohibitions (a Mishnah in Yoma explicitly discusses the age at which a father must teach and train his daughters to fast on Yom Kippur).

In addition, American law mandated a school education, leaving the father with the choice between public school, where non-Jews will teach, or to a Jewish school, where they can learn about Jewish values and beliefs. Clearly, the father must take the second choice, and cannot use ma`aser money for what Jewish observance already requires of him.

On the other hand, R. Feinstein is sympathetic to the questioner’s financial straits (he does not clarify what counts as poor enough to take advantage of the idea he is about to share). He thinks the father can pay as much tuition as appropriate for his income; should the school insist on more, he can use maaser</em> money for both his sons and daughters, because the custom/ laudatory practice of giving <em>maaser only comes into play once a person has enough for his basic needs, and this man clearly does not.

The Fundamental Error of Much of Orthodox Feminism

The last responsum Orah Hayyim 4;49, dated 5736 (1976), answers a rabbi who wants to know how to respond to women looking for expanded roles in the synagogue and in Jewish ritual life. R. Feinstein’s answer seems to me still a manual for how to approach such questions: First, he notes the fundamental tenet of Jewish belief, the Written and Oral Laws were given at Sinai.

It means whatever is part of the Written or Oral Law, at least, are divine and unquestionable, whether we think we know the reason behind them and dislike it, or see no reason for it.  (He does not mean to imply Hazal or denim de-rabbanan, rabbinic rules, are more open to question. I think, back then, much of what the women were questioning was, in fact, Torah law).

The exemption from positive time-related commandments, including tzitzit and therefore tallit, was the central concern—women were starting to wear tallitot and the questioner wanted to know how to react. Women are certainly allowed to perform mitzvot where the Torah chose to exempt them—and Ashkenazic women do so with the blessing—so a woman who wants to wear a tallit may. [Elsewhere, R. Feinstein thought there was no point in non-Jews’ observing mitzvot, because he saw them as a covenant between the Jewish people and Gd. In that framework, the system’s allowing for women to observe mitzvot without an obligation means they were always relevant to them, just not obligated.]

With one important caveat, her only concern be fulfilling the mitzvah, as virtually all women do for shofar, sukkah, and the like, he says.  If they are doing it to make a point about equality and adjusting the divine system to modern realities, R. Feinstein thinks they are implicitly denying the divine origin of the Torah.

R. Feinstein closes with what I find another crucial reminder. He says much of the objection to women’s traditional role in ritual life stems from a flawed understanding of the religion’s priorities: the sanctity, role, and status of Jews as a people with a special relationship with Gd, tasked with spreading knowledge of Gd in the world, apply equally to men and women.  The only way to handle those who argue otherwise is to forcefully, consistently, and tenaciously recite these assertions Jews hold to be truths of the world: Gd gave the Torah, Gd knows how to parcel out responsibilities within the broader picture of a sanctified nation, and objecting to or fighting against Gd’s system repudiates the system, however the person doing so phrases it.

And that was the 18^th of Elul, on four occasions of R. Moshe Feinstein’s rich life. Shabbat Shalom.

11 Elul: Hatam Sofer on a Hazzan/Shohet with Seizures and on Choosing Poor to Support

Medical challenges affect patients and families in ways beyond the directly physical. Shu”t Hatam Sofer 2; Yoreh De’ah 7, dated 11 Elul 5528 (1827), addresses a hazzan/shohet in a certain locale [I think this was a common pairing, neither job paying enough to support a family; I knew a man who filled those posts as well as shammes in an out of the way community in the 1990s, so it’s not so distant an arrangement]. He was well-respected, well-qualified, with a nice voice. Unfortunately, he was prone to seizures.

Seizures and Shehitah

The responsum calls it holi ha-nofel, epilepsy, although it also says the seizures came in the mornings, when he had not yet eaten, and the doctors attributed it to a weakness of his heart [I saw a man pass out at morning minyan one time, and he later told me he had been advised to drink some orange juice before coming to shul, to avoid such incidents].

Both jobs were now in peril, and the man had young children to support. Could he serve as a shohet, a ritual slaughterer, when we might not realize he was starting a seizure, thus making the animal or bird non-kosher?  During a seizure, he qualifies as a shoteh, not competent to perform religious acts, and we generally do not accept the shehitah of people who are ‘ittim halim, occasionally fine but occasionally a shoteh, because we doubt we can tell when an episode starts.

The questioner notes Rashi understands the Gemara literally, someone with seizures is inhabited by a demon. Demons come suddenly, with no reason to worry about an advent period—were the person in the throes of a seizure we would see it, and any time he seems fine, he should be able to serve as a shohet. [Rashi’s idea works regardless of the reason—he is saying the person is either in seizure or not, with no in-between.]

Rambam gave a more naturalistic explanation, the periodic problems result from an excess of blood or other humors (pre-modern medicine thought the body balanced four fluids, so Rambam is saying it’s a problem with the balance creating the problems). Such humors cannot go in or out of balance all at once (in general), which should mean we do have to always worry his humors are in the process, even if we cannot yet detect it. Meaning he might not be able to be a shohet.

The Onset of Seizures

Hatam Sofer notes commentators on Rambam and Tur wondered how they did not raise the issue of witnesses to an act by a periodic shoteh being required to make sure the shoteh wasn’t about to enter or was still ending an episode of mental incompetence. He thinks the idea of gradual onset of incompetence explains Ketubbot 20a’s discussion of a shoteh who sold some property. Ran wondered how witnesses could sign off on a sale by a mental incompetent.  Hatam Sofer says Rambam’s idea provides the answer: the shoteh was sometimes incompetent, not always incompetent, and the witnesses failed to notice he was at the onset or completion of an episode.

Hatam Sofer then disputes the characterization of Rashi’s view. A literal demon might still overtake a person only gradually, because Hatam Sofer thinks demons only take over people who have a prior problem; that’s why almost all people who are insane cause damage [I think he means damage is always a matter of demons inhabiting a person, for this view, and people with preexisting mental problems tend to be susceptible to demons. Fully healthy people resist demons more successfully. In addition, I think he is saying a person with mental problems will show those to some extent as the demon enters them, making it more like Rambam’s view of a gradual onset of seizure].

He is saying Rashi, too, might have agreed with Rambam’s worry about undetected onset of an episode. [Note how smoothly he refrains from denying the literal possibility of demons while still subordinating them to the more medical model Rambam offered].

The rabbi writing him had made sure two other ritual slaughterers were always with him, who could verify he had been fine for the entire time he was engaged in killing animals. For birds, the rabbi noted the delay between slaughter and consumption—the meat had to be soaked, salted, and cooked, more than enough time to see if the shohet had any seizures. If he was fine through that time, we would no longer need worry he was in the early stages of an episode when he performed the shehitah. The rabbi had also appointed someone to stay in the man’s house, to be aware of any issues as they arose [the responsum does not mention how they financed all this supervision, but our halachic concern does not touch on that].

Hatam Sofer thinks the steps outlined would work for a man whose attacks could come at any random time. Since this shohet has his problems almost solely in the morning before eating, Hatam Sofer is fully confident they can continue to rely on his shehitah.

Serving as Hazzan

The second question looked at his continued service as hazzan, especially on the High Holidays. The writer thought his problems constituted a sort of blemish, making the man a less-than-desirable representative. Malachi 1;8 complains about the Jews’ bringing sacrifices they would never give as gifts to human rulers, and the community would never send a man prone to seizures as their messenger to a king.

Were he to have a seizure in shul, another worry was the sensitivity of other people, who might become dangerously ill from seeing him rolling on the floor [the responsum does not address the underlying question of who bears the responsibility to accommodate whom; should he have to give up his job because they do not like to see him struggle with an illness, or should they learn to bear the sight of disturbing events, to help this man keep his job?].

The community is split, some insistent on getting rid of him, some wanting to keep him for his pleasant voice, his elevated character and conduct, and to protect his young dependents.

Hazzanim Are Not Kohanim

Hatam Sofer dismisses the implicit comparison to a priest or sacrifice the questioner had made when he raised the issue of a blemish. Were seizures to count as a mum, a disqualifying blemish, for a kohen, hazzanim have none of those rules—a left-handed hazzan is fine, but not a kohen, for a simple example.  He knows the view of Shevut Ya’akov, the hazzan for the High Holidays could not be a man with two wives (such as if the first one became institutionalized, and rabbis allowed him to marry a second wife), because the High Priest on Yom Kippur could not.

Hatam Sofer disagrees, because a hazzan is not a High Priest. Disqualification, in his view, happens only with matters relevant to the job at hand. Rashba thought a man who became extremely old, for one example, could no longer serve on the Sanhedrin. Hatam Sofer says the blemish there is directly relevant to the job—Chazal worried someone of too advanced an age no longer had the necessary compassion for others.

Our hazzan, however, can perform his functions well and beautifully (enough to perform before a king) when he is not having an attack. We know how to avoid an attack as well—on Rosh HaShanah, when he goes to shul before dawn (says Hatam Sofer), he should eat before shul (it’s not yet day, avoiding the problem of eating before praying, because it’s not yet time to pray). If that’s not enough, Hatam Sofer allows him to make kiddush and eat before shofar blowing.

He may be a better representative for the community than others, says Hatam Sofer, because he is broken hearted over his situation, knows the precariousness of his ability to support his family, and Tehillim tells us Hashem is close to the broken-hearted. The community’s compassion for this man, finding a way to work with him and keep him in his job, will itself be a merit for them which they can properly hope will lead Hashem to answer their prayers positively.

Yom Kippur is more of a problem, because he obviously cannot eat, and cannot be the hazzan for Mussaf (as had been his practice). Hatam Sofer suggests switching him to Kol Nidre (apparently, the hazzan did not have the job of hazzanim today, Kol Nidre, Mussaf, and Ne’ilah), and then have him pray in a side room, so as not to interrupt the community’s prayers should he have an episode during the day.

An interesting balance to accommodate divergent needs in a challenging situation.

Money to Which Poor

Nine years later, 11 Elul 5597 (1836), Shu”t Hatam Sofer Kovetz Teshuvot 46, addresses a man from Jerusalem who wanted to know who qualified as a resident of a city for charitable purposes. Halachah gives priority to ‘aniyei irecha, the poor of your city. Hatam Sofer says it takes twelve months to establish residence, and if someone moves away, thirty days back in town to re-establish it. But someone who has lived in a place for a year, and now for the past thirty days, has priority over people born there who moved away. It’s where you live, not where you’re born.

The poor of Israel were known to have priority as well, but in comparison to the poor of other cities, after the charity coffers (personal or communal) have already taken care of the poor from the city itself. He again stresses the irrelevance of birthplace (so if his questioner was born in Europe and had moved to Jerusalem, but wants the people in his birthplace to give him charity as if he were a resident, Hatam Sofer is turning down his request).

More, he thinks someone can qualify as “’aniyei Eretz Yisrael, the poor of Israel” only if he has always lived there, or moved there fully able to support himself and later became impoverished. Poor people who choose to move to Israel, knowing they have no way to support themselves cannot lay claim to the higher call of the “real” poor of Israel.

Hatam Sofer compares it to some people lacking food and others lacking important mitzvot like tefillin; we’d obviously take care of the food needs first. So, too, a Jew who’s going to need our support is trying to fulfill the mitzvah of living in Israel on the backs of the poor who already live there, and on the backs of the poor outside Israel, whom he’s trying to leapfrog by joining the poor who have priority.

We have to support the poor, but the poor cannot try to twist the system to their own advantage.

Two cases of Hatam Sofer weighing competing views and calls on resources, for 11 Elul.

4 Elul: R. Moshe Feinstein on a Mechitzah Minyan in a Non-Mechitzah Shul

We often fail to remember battles of our past, when dedicated Jews, rabbis and not, stood against the tide in the name of proper fulfillment of the Torah. Jews have had to deal with pressure to convert from ascendant Christians, from thriving Karaite communities, and more.  There have also been times when within Orthodox Judaism, groups pushed for outcomes rabbinic opinion held to be unacceptable.

When the Plague Is Within

The mid-twentieth century battle over mechitzot offers an example.  It’s hard enough when a new version of Judaism claims to be a legitimate alternative, such as Reform Judaism; Orthodox Jews then must walk the fine line of opposing their claims about Judaism while also remembering their love and connection for their fellow Jews. With mechitzah, the challenge was heightened in that many claimed Orthodox Judaism did not require a separation between men and women during services. In the thirties through the fifties of the last century, beside thriving and growing denominations other than Orthodoxy, many synagogues claimed to be (and, to complicate matters, were interested in being recognized as) Orthodox. With no mechitzah.

For decades, rabbis and lay leaders had to wage a careful battle, to avoid alienating people while maintaining the tradition (the OU, for example, grandfathered non-mechitzah shuls into the 1990s, I believe, member shuls of the OU with no mechitzah in their main sanctuary).

In such situations, some promote a refusal to affiliate with those who made the improper choice. Shu”t Iggerot Moshe Orach Chayyim 2;40, dated 4 Elul 5719 (1959), shows the normally accommodating R. Moshe Feinstein taking that view about the permissibility of praying in a room of a building where the particular room has a mechitzah, but the main shul does not. [I know of institutions who saw such an arrangement as a compromise to accommodate more tradtional/ Orthodox members. Although one could never count on it, there were cases where the mechitzah minyan became a strong enough constituency within the shul to bring the main sanctuary to put up a mechitzah, to allow them to rejoin the larger group of the shul].

The Impression on Other People

R. Feinstein’s starts with the impression heading towards the building will give. Avodah Zarah 11a prohibits travelling a road whose only destination is a place for worshipping a power other than Hashem. Rashi attributes the concern to chashad, the worry others will suspect this Jew is, Gd forbid, headed to engage in such worship him/herself.

If people are not generally aware of the mechitzah minyan within the building, people seeing this Jew walking there will assume s/he’s going to the non-mechitzah service. Especially when many Jews had no qualms about joining such services, they would more easily assume that about the Jew in question, whereas even in the time of the Mishnah and Gemara, there was more of a taint in joining avodah zarah.

Here, there’s also mar’it ayin concerns. R. Feinstein argues that mar’it ayin includes cases where people will see a Jew’s actions as justifying their also acting that way. A Jew who saw another Jew headed to an avodah zarah would not generally decide it was therefore ok to worship there [R. Feinstein says; me, I wonder how much ordinary Jews understood about Judaism’s objection to avodah zarah, even as late as the time of the Mishnah and Gemara].  Chashad also prohibits an action, because a Jew is not allowed to cause others to think s/he is violating the Torah whether or not the witness will be tempted to follow(he cites Bamidbar 32;22, vi-hyitem neki’im me-Hashem u-mi-Yisrael, you shall be clean/innocent from Hashem and the Jewish people; it’s a reminder observance is not a purely personal matter or choice).

In the 1950s United States, seeing a fellow Jew headed to a non-mechitzah service would more than likely convince the witness it was an acceptable mode of behavior.

What Suffices to Avoid Mar’it Ayin

Common knowledge of a mechitzah minyan on the premises does not necessarily solve the problem. It might get rid of the chashad, but might allow people to think it’s all right to join the non-mechitzah minyan. (R. Feinstein phrases it as they’ll tell themselves this Jew is probably going to the non-mechitzah minyan, but that should then also be a problem of chashad. I wonder if he meant that just the heading towards the building, regardless of which service, confers enough legitimacy on all the services in the building to count as mar’it ayin. It’s not the simplest reading of his words, but it explains why chashad is no longer an issue for him).

He thinks the problem worsens if (as was usually the case) the mechitzah minyan was smaller than the one without. We usually rule leniently regarding doubtful cases of mar’it ayin, but here the communal situation in which many, many people assume it’s fine to pray at such a service pushes us to rule stringently, to be particularly careful others not infer we are comfortable with the non-mechitzah minyan as well.

Membership, Money, and Mesaye’a

Until now, R. Feinstein has discussed the questions as if there’s no financial connection between the non-mechitzah and mechitzah services. [For example, if both a non-mechitzah service and a mechitzah minyan rented space from a third party]. Where there is such a connection (as was usually the case, the mechitzah minyan was a smaller room in a larger building, and members of the mechitzah minyan were members of the larger synagogue institution), or if the mechitzah minyan just rents space from the non-mechitzah synagogue, R. Feinstein thinks it qualifies as mesaye’a. The Gemara prohibits encouraging sinners verbally, let alone financially.

He’s especially concerned the income from this minyan will keep the larger institution afloat [in later years, this happened with dying Conservative synagogues, where renting space to a mechitzah minyan helped the larger institution last a few more years. R. Feinstein does not address what also sometimes happens, that the larger institution then dies, or sees that its only way of continuing is to let the successful mechitzah minyan take over the main sanctuary, and what was once a non-halachic synagogue becomes a fully halachic one.

He also makes no distinction between willful and unwitting sinners in this area. Especially for those who adopt the model of tinnokot she-nishbu, Jews are often too ignorant to count as willful sinners, there seems room to view these mechitzah minyanim as a productive avenue of kiruv, of bringing the distant closer to tradition. But it behooves us to remember there were many varieties of these situations; while some mechitzah minyanim helped the larger community, others only provided continuing vital financial support to a non-mechitzah synagogue. Nor was any of this easily predicted in 1959].

Eating Dairy Out

The responsum closes with a separate issue, eating at a non-kosher dairy restaurant. R. Feinstein points out numerous kashrut issues arise in such places—they have non-kosher fish as well as kosher, they use some non-kosher oils and cheeses, some of their foods have been cooked by a non-Jew (bishul akum, rabbinically prohibited under certain circumstances).

To eat fully kosher food in such a restaurant causes both chashad (people will suspect him/her of eating non-kosher) and mar’it ayin (other Jews will infer they, too, may eat there). R. Feinstein does offer one significant leniency, less often applicable than back then. If a Jew is very hungry and can find no other place to eat, s/he can go into a dairy restaurant and order fully kosher food (he does not clarify, but for example, a cold plate of whole fruit works), because Chaza”l did not insist on following their decrees in situations of great distress and/or loss.

The Jew also must do it be-tzin’a, privately, by which he means no one who knows this Jew should see him/her enter the restaurant. Once inside, anyone who knows him/her will also see s/he is ordering only kosher food (R. Feinstein assumes the Jew need not worry about the casual encounter, where an acquaintance will bump into him/her but not stick around long enough to see his/her order).

Should our hunger Jew encounter anyone who knows him/her outside the restaurant, R. Feinstein requires him/her to explain the needs leading him/her to go in, to make clear s/he will be ordering only kosher food (he seems comfortable with a Jew who works in a city with no kosher restaurants and forgot his box lunch at home to say to a friend s/he meets, “oh, I’m starving” or “oh, I have an unavoidable business meeting, so I’m having a fruit plate,” or the like.) But he closes with the reminder this leniency should only apply to cases of great distress or need.

Back in a time when Orthodoxy had significant challenges, R. Moshe Feinstein fought battles in need of fighting—to avoid assisting those sending Orthodoxy in a wrong direction—as well helping Jews find food to eat when it was scarce, laying out the law and the leniencies of eating dairy out.

26 Av: R. Moshe Feinstein on Some Limits on Saving Lives

[Click here for the audio version. I note I had been taking the Wednesday responsum each week; for this week, I thought this Tuesday one more immediately interesting, and as I am soon bringing this project to a close, thought it worthwhile to shift the day to study it together.]

It’s common to say pikuach nefesh docheh ha-kol, saving lives pushes aside any interference, Jews may do whatever needed, violate any usual rule, to save a life. Obviously exaggerated, the idea ignores the three types of sins Jews famously must allow themselves to be killed rather than violate, murder, certain sexual sins, and worship of a power other than Hashem.

The middle one of those—a man being coerced into a sexual act incurring excision or capital punishment—taught R. Moshe Feinstein a more far-reaching exception to the permissibility of violating the Torah to save lives (a few months ago, we saw Binyan Tziyyon suggest a different limit to this rule).  R. Feinstein thought circumstances might force us to violate the Torah, but we’re never allowed to want to violate it, preventing us from saving certain lives.

What Counts as Mentally Ill

Iggerot Moshe, Yoreh De’ah 2;59, dated 26 Menachem Av 5725 (1965), deals with a seemingly unrelated topic, institutionalizing a young man for mental problems where the home does not have kosher food. The rabbi from Toronto who asked the question, R. Yaakov Immanuel Shochet had pointed to Sotah 3a, where the Gemara quotes Resh Lakish as saying people do not sin unless a ruach shetut, an insane spirit, enters them. R. Shochet seems to have thought we might be able to categorize sinners as shotim, halachic incompetents, exempt from the need to avoid sin.

I know people who take close to a similar attitude, dismiss evil behavior as necessarily a matter of mental illness; the Torah cannot have meant such a broad definition, R. Feinstein is saying, because it would never punish people. He offers a standard close to the one TV and movies assume in American law–as long as the sinner/criminal understands what s/he’s doing and that it’s wrong, s/he is sane enough to be culpable.

The facility where the boy needed to be institutionalized did not have kosher food, and did not allow outside food. R. Feinstein thinks any Jew who fosters this boy going to this facility violates the prohibition of lifnei iver, of causing a fellow Jew to sin.

When Saving Lives Is Not Enough

What if the doctors say there’s a real danger the boy will kill himself? Or will violate the law and resist arrest to the point the police will kill him? Or will become so mentally ill he in fact will no longer be halachically competent? In physical illness, danger of death would allow eating non-kosher, so mental illness should presumably be the same.   (Trigger warning: R. Feinstein is about to be stringent here. As always, I present these summaries without endorsement, not that R. Feinstein needs mine–he was a major Torah scholar, a major posek, and with no obvious tendency to stringency; we learn from him as part of a long-term project, because learning from great Torah scholars is valuable regardless of whether the consensus has adopted their view.)

He holds we cannot treat the institutionalization as ordinary life-saving because we cannot trust this patient to limit his violations of the Torah to only the bare necessity (a good reminder the permission to violate the Torah to save lives insists we do only the amount needed to save the life). This boy/man had already rejected observance, meaning we must assume he will also eat nonkosher food beyond his sustenance needs, just because it looks and tastes good. There’s no excuse for that eating, so lifnei iver applies, the people who put him in the home are putting him in a position to violate the Torah.

This is a far-reaching claim, we are not allowed to save lives (ours or others) if we know we (or those others) will in the context of being saved choose to violate the Torah in ways unrelated to and unnecessary for the saving of the lives in danger [a little over a year ago, we saw Chatam Sofer prescribe repentance for enjoying a coerced pleasure; R. Feinstein is about to go further].

The Desire for Sin

R. Feinstein bases himself on a prohibition to want to sin, a prohibition we cannot violate even if it costs lives. He derives the idea from a comment of Kessef Mishneh, Laws of Sanhedrin 20;3, on a puzzling ruling of Rambam’s. Rambam says a court would put to death a man who yielded to threats of death and committed a prohibited sexual act, where we know the court would not do so for someone who yielded to coercion to worship a power other than Hashem or commit murder, equally banned. What makes wrongful intercourse different?

Kessef Mishneh bases his answer on the Talmudic principle ein kishui ela le-da’at, a man’s sexual arousal always involves some component of mental consent (if a certain sexual act is truly and completely distasteful to him, he will not become physically aroused).  R. Feinstein points out Kessef Mishneh’s idea doesn’t solve the problem, as the man would say he was coerced into being aroused.

He therefore understands Kessef Mishneh to mean only prohibited actions are permitted because of coercion, the interest in those actions (whatever they may be) is not. Without being also interested in this sexual relationship, the man would not have become aroused, and he is not allowed to be interested in it, as a yehareg ve-al ya’avor, even under threat of death.

Taking Pleasure or Actively Desiring

Enjoying a coerced act is not a problem, in R. Feinstein’s view–I did not want to eat bacon, doctors said I had to and then it tasted good. Rava’s opinion in Pesachim 25b does seem to disallow taking pleasure from anything prohibited, but only where the underlying behavior has some other reason the Jew may not engage in it. To save lives, the underlying action often is allowed, in which case the pleasure is not a problem.

With intercourse, R. Feinstein read Kessef Mishneh as arguing, the act is not permitted, so he should never be allowed to take pleasure in it. Further, the idea he can only become aroused if he has some interest in the act means he would be showing an interest beforehand, also a problem. (I stress again, R. Feinstein is saying if the man found this act completely and fully distasteful, the Gemara’s view is he would not become aroused). Even coerced sex is a willed act for a man.

Bringing It Back to the Mental Patient

The same problem hampers the patient who would eat non-kosher unnecessarily and voluntarily. His willingness shows he wants to sin (and, for R. Feinstein, is not mentally ill enough to count as a shoteh), and wanting to sin is never allowed (an idea with many other examples, where lives are not on the line, and part of why I found the responsum so worth reviewing).

The conclusion means other Jews may not help institutionalize him there (I think some decisors would be more lenient than R. Feinstein when a Jew will sin whether or not we help. I could also imagine, here, someone would free the parents from the need to assume the boy will take food when unnecessary. But we’re not here for a full analysis, we’re here to learn from R. Feinstein).

Two more problems, R. Feinstein is not convinced the boy is in mortal danger, and reminds his correspondent adults are not allowed to feed non-kosher food to minors, despite their not themselves yet being obligated to keep the Torah. Putting him in the home would be like giving him the food ourselves.

R. Feinstein is so certain he says even if the boy’s non-observant guardian (his parents were deceased) already institutionalized him, the halachically observant trustee of the estate could not pay for his care. If the parents had been observant themselves, he adds, the trustee would also be on the hook for any money he paid the institution, as the parents would never want him to use the money for a prohibited purpose.

The boy could be sent to a facility in Israel, where they serve kosher food. [R. Feinstein does not elaborate, but I wonder whether the availability of other facilities factored in his decision. He does not evaluate the relative skill or expertise of the different facilities]. The last line of the responsum walks much of this back, because he adds that if the government requires this way of treating the patient, the trustee would have to pay, though it’s against halachah.

But the surprising larger principle is that saving lives permits actions that violate the Torah, even if the person will enjoy them, it never permits wanting to violate the Torah.

20 Av: Chatam Sofer on What’s Included in a Partnership

My father, a”h, was a corporate lawyer for much of his life, and I remember him telling me corporate law sought to make the terms of deals clear ahead of time, to avoid misunderstandings and recriminations later. Shu”t Chatam Sofer 5; Choshen Mishpat 96, dated 20 Av 5596 (1836) shows us the kinds of arguments which can arise without such clarity.

A Partnership in Wool

Two men set out to the market in Pest to sell wool, as partners. They hired a wagon together, and when one of them—called Nachum in the responsum—was offered more wool, Ya’akov agreed to partner on the new wool as well. Ya’akov went a step further, made explicit his understanding of custom, the partnership covers all merchandise which comes their way on the trip.

The problem arose at the market. They agreed to buy ‘orot, hides or leather, to sell back where they lived, and Nachum told Ya’akov to go buy the leather. After he did, Ya’akov told Nachum he would accept Nachum as a partner only if Nachum paid him for the effort expended to find and buy it. Nachum said nothing.

Back where they lived, they told the story to a trustworthy third party, are now in court because Ya’akov claims the leather is all his, Nachum never having joined the partnership. Ya’akov has now added a detail of their interactions; he claims he told Nachum to come buy the leather with him, or he would buy it for himself. When he asked Nachum for a fee after he bought the leather, he was offering him a last chance to join. Nachum’s silence means he missed his chance.

Who’s right?

Summary Judgment for Ya’akov

Chatam Sofer starts his response with a greeting, and apologizes if he has not extended the proper accolades to the questioner, whom he does not know. [I don’t generally comment on the openings or closings of the responsa we study. Chatam Sofer shows us he worried his questioner would be insulted by his failure to observe what I would have thought was a formality. He does say the question itself shows some Torah knowledge, and uses the a phrase I find beautiful, the Torah given at Sinai was oryan telita’ei, a three-fold Torah.

Rashi to Shabbat 88a said the three parts were Torah, Nevi’im, and Ketuvim; as Ritva points out, Rashi assumes all of Tanach was implicit in the original Giving of the Torah. Ritva mentions two other stimulating possibilities, worth looking up, but which would take us too far afield].

On the substance, Chatam Sofer rules for Ya’akov; the best Nachum can do is pay for Ya’akov’s effort in finding and buying the leather (as Ya’akov had said back in Pest), and then share the leather. Since Nachum seems to have argued Ya’akov also wanted to charge him more for the service than it deserved, Chatam Sofer says to have experts set the fee.

The questioner apparently thought issues of possession and presumed ownership came into play (perhaps because Nachum was holding on to the leather?); we do not find out what they were, as Chatam Sofer dismisses them out of hand, says he did not read those (lengthy) sections of the question, deems them irrelevant. (He rejects any role for tefisah, taking possession, or chazzakah, an established state of affairs, again at the end of the responsum. It sounds like the questioner had focused on those issues as the crux of the problem).

Verbal Agreements and Partnerships

To explain his reasoning, Chatam Sofer takes up a few halachic issues without directly relating them to our case, comes back at the end to show us how they apply. Rambam’s Laws of Messengers and Partners 4 requires an act of acquisition to establish a partnership. Unless the act has occurred, either partner could withdraw, regardless of whether the merchandise has already been purchased (were the profit going to be more than expected, the partner who has the merchandise could withdraw and keep the profits, and vice versa were there going to be a loss).

Maharam disagreed, pointing to a Gemara which considered a verbal agreement as effective as an agreement formalized with an act. (The hana’ah, the pleasure or benefit the partners receive, from agreeing with each other, gives full force to the verbal agreement).  Chatam Sofer assumes Rambam would have said the Gemara only took such account of verbal agreements to extend an existing partnership, not initiate one, as Maharik explicitly said about the passage.

Maharam, quoted by Mordechai, cited another Gemara as well. There, a group of donkey-drivers agreed to have a partnership. Rashba thinks the Gemara does not prove the point, because the

joint agreement of a group (and the security of being part of a group) creates more hana’ah, more benefit and more willingness to commit, than a partnership of two.  Chatam Sofer thinks Rambam would have agreed.

General practice follows Maharam, where the two formally agreed. Where they spoke in general terms of being partners, without specifying practicalities, no partnership has been established, and either party can back out at any time, including after the profits have been made (as Rema ruled, Choshen Mishpat 176;3. Chatam Sofer will come back to his particular case after he’s established the relevant rules. For now, he’s shown us a partnership established verbally, in only general terms, has little halachic force).

Existing or Expected Materials

Rambam also thought partnerships only work for a davar she-ba le-‘olam, materials already in existence (I have wool to sell, for example). He would not think an agreement to share future wages [or tips, for example] binding [there may be good reasons for the parties to adhere to the agreement anyway; Rambam only means they are not bound by the formal rules of partnerships].

Maharam disagreed again, thought a verbal agreement would work—let alone a formal act of acquisition—because the parties implicitly rent themselves, giving the partnership the rights to their work and whatever accrues from it. Ra’avad agreed.

Kessef Mishneh explained Rambam was unconvinced because their agreement had no language indicating they were hiring out their persons. Chatam Sofer gives another reason, Rambam held hiring a person to own all benefits of his/her work still requires an act of acquisition.

Tur accepted the verbal agreement as a way to change an existing partnership, to make them now owe each other whatever they earn. Chatam Sofer thinks Rambam would have agreed to this option, because we need fewer formalities to extend a partnership. [For our case, were they already partners, because of the wool, the bar to extend it to leather would be lower].

In practice, most authorities disagree with Rambam, think a verbal agreement is effective. Certainly, their work together as partners gets the partnership off the ground and the standards of extending apply, not of starting.

Additional Expectations

The discussion so far addressed theoretical halachic standards, where halachah also recognizes minhag ha-socherim, the common practices and expectations of merchants. Choshen Mishpat 272 clearly requires Jewish merchants to follow expected market rules about collecting money, and Chatam Sofer assumes other market rules would be the same. He thinks Rambam would agree, especially because markets are collections of many people, where he thought Rambam accepted Rashba’s idea about the power of a group’s verbal agreement.

The workload also matters. Everything said until now addresses cases where both partners are equally involved in the activities of the partnership. Where one person is doing all the work, Chatam Sofer holds he needs to be paid a salary. Tur Choshen Mishpat 176 quotes a responsum of his father’s, Rosh, regarding a partnership to tan hides, where only one partner performed the actual tanning. He needed to be paid for his time before they calculated the profits, Rosh said.

Market Assumptions of Chatam Sofer’s Time

We’re back to Nachum and Ya’akov. Chatam Sofer says he’s spoken with businessmen, who all said an agreement to rent a wagon constitutes an agreement to be full partners all the way to the market. Nachum’s purchase of wool along the way was then clearly part of the partnership; nor can he claim a fee for the effort he expended, seeing as it happened on the way to the marker anyway, at a time when he had no other business.

The sale of the wool at the market end their partnership, as custom had it, even if they’ve hired the wagon for a round trip. The litigants’ claims show they assumed the same rules. Nachum based his demand to be included in the leather partnership on Ya’akov’s offer in Pest; he does not say the hiring of the wagon obligated Ya’akov to continue the partnership. Unfortunately for Nachum, he never agreed, verbally or better. The best he can do is pay Ya’akov for his time and effort in the market—as Rosh had said, the market a time when each partner could have fended for himself—and then split the rest.

Next time, they’d be better advised to iron out the details before they start out to Pest…

This past Shabbat, I was describing my ongoing study of my database or responsa and noted again how surprised I had been to find an author as early as Bach, R. Yoel Sirkes (known by the acronym for the name of his commentary on Tur, Bayit Chadash), date his responsa. This time’s example, Shu”t Ba”ch HaChadashot 1, dated 6 Av 5384 (1624), notes Shulchan Aruch Orach Chayyim 196 follows Rambam’s ruling we would not make a bracha or have a zimmun (where three Jews join together for birkat hamazon, signifying the unity created by their eating together) when eating an item prohibited “only” at a Rabbinic level. Making brachot on forbidden items is an example of a mitzvah ha-ba’ah be-averah, a mitzvah made possible by an act of sin, which Judaism eschews.

Rambam, Laws of Blessings 1;19 specifies tevel de-Rabbanan, produce Rabbinic law required us to tithe, as forestalling a brachah or zimmun, all the more so non-kosher meat or wine used as part of the worship of some power other than Hashem, because of the oxymoron in making a brachah as we’re committing a sin (benefitting from prohibited items).

Ra’avad glossed Rambam’s ruling, saying these foods lack the chashivut, importance or significance, to be the vehicle of unity to create a zimmun, but do necessitate a brachah before eating them.

Inherently Prohibited or Vehicles of Prohibition

Bach points out Rambam’s examples were all foods prohibited because of a problem inherent to the food itself, such as produce which was untithed, or meat from an animal which died without valid shechitah. Prohibitions such as an item having been stolen are more external, are not part o of the item itself.

In Baba Kama 94a, R. Eliezer b. Ya’akov (REBY) applies Tehillim 10;3 (“botze’a berech ni’etz Hashem, one who blesses on stolen items reviles Hashem”) to one who steals wheat, turns it into bread, and takes challah, the required tithe for a kohen. Abbaye explains REBY was telling us the wheat has not been changed enough to remove the stain of sin, leaving the botze’a berech problem in place, preventing the person from taking challah with any value.

Rava, on the other hand, said changing the wheat does make it fully the thief’s (the owner has yeush, despairs of recovering it, and the thief has now changed it, the two together making the wheat his as a matter of legal possession, although he obviously owes the owner for the value of the wheat, plus any fines). The blessing is a problem because the mitzvah was acquired by way of a sin. Tosafot raised a problem with Rava’s view: if the change is the crucial issue, why did REBY have to discuss wheat converted fully into bread—once the thief ground the wheat, he had changed it such that the central issues were all already in play.

Berachah on Challah or Birkat HaMazon

His having spoken of taking challah from bread leads Ba”ch to suggest REBY derived two meanings from botze’a berech. It certainly does mean making a brachah on stolen material is a problem, but betzi’ah is also the verb used for breaking bread; Ba”ch thinks REBY was telling us the verse means to imply one is still considered to be making a berachah on an item of sin all the way through to the berachah on the bread itself.

The ordinary beracha on bread is completely rabbinic, not what the verse would have indicated. REBY therefore understood it to apply to the brachah on taking challah (a Biblical obligation which only applies to turning flour into dough).

The verse made a point of the blessing on taking challah, Bach suggests, to imply there would be no problem with birkat ha-mazon, the Grace After Meals, made after eating that bread. In fact, Yerushalmi Challah Chapter 4 quotes R. Yonah as saying only the berachah prior to eating stolen matzah cannot be made; after it’s eaten, the item no longer extant, the thief’s obligation to the owner has turned into a monetary one, taking away the botze’a berech problem.

The Problem Is the Berachah or the Mitzvah?

Yerushalmi uses the matzah example because it too has a Biblical mitzvah (on the first night of Pesach), giving a meaningful way to contrast before it’s eaten, when the thief cannot make a berachah, with after, when only the debt exists.

Bach reads the Yerushalmi to mean the thief will not fulfill the mitzvah with that matzah, either, rendering the blessing le-vatalah, pointless. In his view, the verse may speak of the berachah, but it’s the underlying observance made impossible because of the sin associated with it.

R. Yose disagrees (in the Yerushalmi), says the mitzvah cannot be a sin. Bach understands him to mean the act is both a valid mitzvah and a ni’utz, carries with it a stain which makes a berachah inappropriate. Bach thinks that shows the prohibition against making a berachah on items of sin only applies to sin inherent in the item (since, as we’ve seen, stolen items can have a berachah once the sin aspect is removed from the item).

Debated or Not?

Rosh ruled differently, required a berachah even on such stolen items, although it would be a ni’utz, a reviling of Hashem. Bach is so sure of his view, however, he says Rosh must never have seen the Yerushalmi, and would have changed his view had he seen it [I am coming to the end of my time concentrating on responsa; I continue to find interesting where respondents’ confidence of their view leads them to reinterpret earlier sources. I am not judging the reinterpretation or the claim, I am only noting where the intellectual certainty led the person.]

Beit Yosef takes Rosh at face value, sees him as having disagreed with Rambam’s view denying a berachah before eating such food, and assumes the debate applies equally to stolen food as to foods inherently prohibited. Bach thinks the Yerushalmi is so clear Beit Yosef got it badly wrong.

Beit Yosef had cited other examples, all of which missed Bach’s point, in having dealt with items with an inherent probation. In such cases, Bach concedes many sources, including a Tosefta in Demai, a comment of Rashi’s and of Rabbenu Yonah’s, all make clear one would not make a berachah before or after, nor would three Jews eating such food have a zimmun.

Before a stolen item has been changed, it too precludes a berachah because it does not belong to that person (nor could one fulfill the obligations of matzah with it); after it’s been changed, the rabbis in the Yerushalmi debate a berachah before, but after—when the food’s eaten and gone—the conversion of the thief’s obligations towards the owner to monetary ones means a birkat ha-mazon could be said.

It’s not good to sin, but in some restricted situations, the sin does not permanently prevent a mitzvah or a berachah from being performed. As far as Ba”ch knew, on the sixth of Av, 5384.

Halachah is also a formal legal system, meaning we can only reach a desired conclusion if we can find systemically legitimate reasons to get us there. Shu”t Iggerot Moshe Orach Chayyim 4;90, dated 28 Tammuz, 5732 (1972), gives us an example. The questioner wanted to allow the use of crutches on Shabbat; R. Feinstein empathized with the goal but found the suggested method insufficient.

Crutches for an Adult

The questioner argued an adult who needs crutches was halachically equivalent to a toddler, whom Shabbat 128b allows a mother to help move (in an area with no ‘eruv) by picking up the child’s legs. The Gemara considers the child nosei et ‘atzmo, supporting its own weight, making the mother’s assistance insignificant in terms of carrying. To the questioner, the adult with crutches also basically moves him/herself, the crutches only there for balance or a bit of support.

R. Feinstein demurs. The Talmudic toddler walks like any other person. In R. Feinstein’s reconstruction of toddlerhood (which seems reasonable), the child really can already walk, s/he struggles still with uncertainty or, perhaps, standing on one leg while moving the other. The mother provides the security for the child to do what s/he already can, or perhaps supports for the interim part of the walking motion, when the child cannot stand on one leg. The child does enough, however, to be considered mobile in the usual way.

R. Feinstein recognizes differences among crutches-users, with some indeed largely supporting themselves even without the crutches. Still, he thinks the motion of putting the crutch in front and stepping to it means we cannot see the adult as self-supporting (he does not fully explain why; I think he means nosei et ‘atzmo works only for the ordinary walking motion).

Other people with crutches cannot lift their legs on their own at all; they put the crutch forward a step, lift and swing their whole body (dragging the leg along), then do it all over again; they are even less convincingly nosei et ‘atzmo, support their own weight.

The Reason a Nosei ‘Atzmo Isn’t Carrying

Rishonim’s various reasons for the Gemara’s idea add to his resistance to extending it to crutches. He does know a view which includes anyone who can move him/herself, assisted or not, in nosei ‘atzmo, which clearly covers a person with crutches. Carrying such a person does not violate Shabbat at a Biblical level, and the parallel to a toddler would be apt and accurate.

He read Rashi, Tosafot, Rashba, and Ritva as having a different view. They thought the toddler lightens the load of whoever is helping by his/her self-propulsion. Some people with crutches are not able to provide assistance, are mostly dead weight because of their problems with walking. R. Feinstein thinks these authorities are enough of a critical mass to require us to avoid acting counter to their view, leaving many people on crutches without the claim of nosei et ‘atzmo.

Yoma 66b assumes a person who is ill cannot be carried. R. Feinstein points out that many ill people are more ambulatory than toddlers; the Gemara tells us illness leads people to weigh themselves down. (For all they could carry themselves, illness leads them to do the opposite).

Tosafot Shabbat 130a proves his distinction, in a discussion about when a circumcision knife has been left in a place where carrying is prohibited. One opinion in the Gemara treats all living creatures as nosei et ‘atzmo, including an infant; according to that view, Tosafot wonders, the Gemara should have suggested bringing the infant to the knife, not the other way around.

An ill person makes himself heavier, Tosafot says, and the baby will be ill after the circumcision.

People confined to wheelchairs or who can only walk leaning on others have many of the same issues, so R. Feinstein does not think the toddler case solves the problem.

A Wheelchair as Shoes

R. Feinstein instead suggests the person with locomotion problems could push him/herself in a wheelchair. For that person, the wheelchair is like shoes, the way s/he gets around, but under his/her own power. He actually thinks it might be better than shoes, since Rashi Shabbat 66a thinks we are not allowed to wear wooden shoes outdoors on Shabbat.

A wheelchair is more like clothing, since the person sits on it. Although it’s not tied to him/her, a wheelchair does not have the worry the Gemara raised, lest the person take off a piece of clothing to show it to admiring friends. For a similar example, the Gemara allowed amputees’ Shabbat use of the chairs or benches (without wheels, in Talmudic times) on which they used to drag themselves around.

Tosafot Shabbat 65b extended the idea to a cane, for someone who cannot walk without one, a rule codified in Shulchan Aruch 301;16-17. Magen Avraham thought being able to walk at home without a cane excluded a person from this leniency. We might think a person in a wheelchair who can walk a bit is similar, and therefore cannot use it outside the house on Shabbat, but R. Feinstein argues the person who can walk without a cane could walk the outside trip without a cane as well, it’s just easier with one. A person on crutches or in a wheelchair cannot possibly cover the distance, so the problem does not arise.

Non-Jews Help Cross the Threshold

For others to push the wheelchair (where there’s no eruv) would violate a rabbinic prohibition against carrying people, regardless of nosei et ‘atzmo; given the person’s questionable ability at self-ambulation, the problem may be Biblical. People could lower the chair from sidewalk to street and vice versa, because the height of the curb is less than four amot, and there is no Shabbat problem with lifting an object, moving it less than four amot within the same halachic area, and putting it down.

The question asked about helping a person on crutches go to shul for a family celebration, and the entrance poses a problem if it has stairs or other barrier setting the shul off from the public area (without a barrier, the person in the wheelchair could roll him/herself inside).

He suggests having a non-Jew pick up half the chair and place it inside the shul, which does not yet constitute a Biblically prohibited act of moving the object as a whole from one type of area to another. The person is therefore asking the non-Jew to violate a rabbinic issue, which is a shevut de-shevut, a violation of the rabbinic prohibition against asking non-Jews to do for us on Shabbat what we may not, and the act requested itself also being a matter of rabbinic law.

Chazal allowed shevut de-shevut in cases of great need. The “great need” here, R Feinstein says, is the emotional pain the person will suffer if s/he cannot attend a relative’s joyous occasion. With half the chair in, we can then ask a different non-Jew to do the other half [R. Feinstein does not explain his certainty there will be two non-Jews available].

Defining Distress

On the other hand, R. Feinstein rejected the questioner’s idea the non-Jew could then also bring the man’s crutches, based on the Gemara’s permitting a non-Jew to act in Biblically prohibited ways for people in distress. The inability to walk would be distressing, enough for the questioner to think the non-Jew should be able to bring the crutches before the man arrives, given our certainty of the distress the man will feel without them.

R. Feinstein corrects his misinterpretation of tza’ar, distress; the Gemara meant someone who is ill all over his/her body, as is clear in Rema Shulchan Aruch 328;17. Wanting to go somewhere does not qualify. More, R. Feinstein thinks this would be an example of acting in a way which will create a need of distress, not allowed even if the action would be permissible once the need was created.

He analogizes it to a case of tumah hutrah be-tzibbur, a community may all bring certain sacrifices, including the ritually impure among them, if the majority are ritually impure. Were a minority to be impure, we could not purposely cause impurity to others to create a majority, thus allowing many others to bring the sacrifice as well. Here, too, R. Feinstein does not think we can act in a way we know will create a need to ask a non-Jew to violate Shabbat on our behalves.

Finally, he says if the man can walk on crutches, he can certainly also walk by leaning on others, he just does not want to put them out. The desire to avoid inconveniencing others is not enough to allow violating Shabbat.

I do not think the responsum will raise hackles among readers, because many communities now have ‘eruvin, avoiding the problem, and because R. Feinstein does offer the wheelchair solution, With our sensitivities less likely to be triggered, the responsum does remind us of the importance of analyzing the underlying issues for the conclusions they teach us, despite the process sometimes leaving us unable to do that which we want. In this case, the man could leave crutches at the shul before Shabbat, or use the wheelchair even once he has arrived at the shul, joining the celebration to the best of his abilities.