Friday, October 30, 2009

reciting oseh ma'aseh braishis on yam hamelach

I happened to be looking at R' Shteineman's sefer Ayelet haShachar, so a few parsha ideas from there:

A mussar idea: Rashi quotes the Midrash which explains “hanefesh asher asu b’Charan” as referring to converts which Avraham and Sarah attracted. Earlier in the week I saw that R’ Aviner discusses what happened to these people. He suggests that they were not geirei tzedek, as no such concept existed before matan Torah (I’m surprised he writes this so unequivocally; see Brisker Rav al haTorah, P’ Bo), but were geirei toshav who later became the chassidei umos ha’olam. He does not quote the Meshech Chocma (21:33) who also deals with this issue and writes, based on Midrash, that these converts eventually reverted to their idolatry.

R’ Shteineman notes that rather than view the time and energy Avraham expended on being makreiv these people as wasted effort because of the the lack of long-term results (at least acc. to Meshech Chochma), the Torah credits Avraham for what he accomplished. He quotes R' Yisrael Salanter and the Brisker Rav as teaching that our goal should be to simply do what is right; what the ultimate results will be, what dividends our efforts will pay, is b'yad Hashem and not our concern.

A halachic idea: Rashi writes (14:3) that the Yam haMelach during Avraham's time was not a sea, but was dry land. The gemara (Baba Basra 74b), however, writes that when Hashem created the world he made the Yam of Sdom, which is Yam haMelach, as one of the seven seas which surround Eretz Yisrael. Was it a sea from the time of creation or did it become a sea later? A simple answer is that a small sea existed from the time of creation, but expanded later in history.

This actually has a halachic nafka minah which R' Shteineman quotes from R' Elyashiv. The bracha of "oseh ma'aseh braishis" can only be recited on something created during ma'aseh braishis. Since we don't know what part of Yam haMelach was created originally and which part of the sea was a later addition, R' Elyashiv holds that the bracha can only be recited if the entire sea can be seen at one time. R' Shteineman is not convinced. Perhaps the majority of the sea existed from creation and only a small part was added later -- based on rov one should be able to recite the bracha on any part of the sea. My 2 cents: since we don't know the percentage, i.e. did rov exist from the time of creation, shouldn't we say safeik brachos l'hakeil and follow R' Elyashiv's guideline?

Thursday, October 29, 2009

tefilas tashlumin

A few days ago one of my daughters asked me an interesting question. She had inadvertently forgotten to daven mincha, it was already after shkiya, and she wanted to know what to do.

A bit of background: my daughters do not ordinarily daven ma'ariv, nor does my wife. Although some Rishonim (e.g. R' Yonah) write that women should daven three times a day, the Mishna Berurah and many other poskim do not quote this view. The difference between ma'ariv and other tefilos stems from the fact that the gemara labels ma'ariv as reshus (Brachos 26), as opposed to shacharis and mincha, which are obligatory. Whether reshus means ma'ariv is not required at all or it simply means that ma'ariv can be deferred when faced with other obligations (as Tosfos writes), the bottom line is that it is a lesser obligation. Despite this theoretical distinction, in practice men always daven ma'ariv, in effect accepting it as obligatory. Women, however, have never adopted the practice of always davening ma'ariv, and for them it remains a reshus but not an obligation.

The one exception my wife and others make to this rule is that she davens ma'ariv on Fri. night and Erev Yom Tov. There is a complex reason why this makes sense (R' Ya'akov Emden and the Sha'arei Tshuvah quote this view), but for the sake of simplicity let me just explain what may be a side benefit of this practice. According to some poskim a man fulfills his mitzvah d'oraysa of kiddush in his davening; the kiddush recited over wine at the meal is only derabbanan. The Dagul m'Revava famously asks: how can a man who has already fulfilled his mitzvah d'oraysa of kiddush be motzi his wife at the meal when she has not? If one's wife has also already davened ma'ariv that question is rendered moot.

Getting back to our story, the halacha is that if a tefilah is missed it can be made up by davening an extra shmoneh esrei during the immediately following prayer period. For example, if you miss shacharis, you would daven a double shmonei esrei at mincha, the first being tefilas mincha, the second being a tashlumin make-up for shacharis. What should a women do if she missed mincha but does not ordinarily daven ma'ariv, the prayer period which immediately follows?

The Halichos Beisa writes (ch 6.) that in this case, even a woman who ordinarily does not daven ma'ariv should daven and add the tashlumin for mincha (which is what I told my daughter to do). What I found interesting is his proof. Poskim write that if a woman is running late on Friday and candlelighting time is approaching it is better for her to light candles than to daven mincha because she can always make up mincha later with tashlumin after ma'ariv -- QED that there is tashlumin for mincha at ma'ariv. I am not sure why this case is the paradigm for what to do when mincha is missed on Sunday or any other day. Perhaps only on Friday night when even many women who otherwise do not daven ma'ariv do so is there the possibility of tashlumin, but on other nights, where ma'ariv is ordinarily skipped, there is no tashlumin. The logic behind the Halichos Beisa's conclusion seems to be that since ma'ariv can be davened on any night, the possibility of doing so (even though one treats it as an obligation only on Erev Shabbos) is what allows for tashlumin.

One additional important point that I think my wife has brought up on her blog -- reshus means optional, not prohibited. Oftentimes a shul will hold a shiur open to men and women that is preceded by ma'ariv or followed by ma'ariv, and while the men daven, the women will slip out or stand in the back talking. Certainly if you are already in shul and have the opportunity to daven in a tzibur, to deliberately stand aside and engage in other activity instead of davening seems strange. Why not take advantage of the opportunity for avodas Hashem?

I don't know anything about the author of Halichos Beisa, but I wonder if he, like me, has more daughters than sons and therefore spent time working through these issues. I try to make time to learn the sefer with one of my daughters on Shabbos and aside from her gain in knowledge and I have found more often than not that I walk away with an interesting mareh makom or chiddush as well.

Wednesday, October 28, 2009

educational ideals and aspirations

Before we can figure out how to build an education system or assess whether an educational system meets the goals and ideals we aspire to as Torah observant Jews, we must first ask ourselves what those goals and ideals are. Note the important word in that sentence: ideals. Yes, ideals do matter, even if we often fall short of them, because of the other important word in that sentence: aspire. It is the sheifa l'gadlus, the aspiration to ideals, which tells much about what a person considers serious and important and defines the direction of his life. When a kid plays baseball, he imagines himself becoming the next Derek Jeter -- he doesn't aspire to becoming the next 40 year old overweight guy in the Sunday breakfast league. When a kid starts to learn Torah, he should similarly imagine himself becoming the next Rav Soloveitchik, the next R' Ahron Kotler, and put in hours trying to make that dream come true -- not aspire to becoming a 40 year old ba'al habayis who can barely kvetch through daf yomi with the Artsroll. At some point in life a person matures and is forced to realize he is not Derek Jeter and maybe becoming a lawyer rather than count on playing shortstop for the Yankees is not a bad idea. And at some point down the road most talmidim will realize they are not R' Ahron Kotler or the Rav and they too will need to make concessions to reality as well. But those decisions can come long after elementary school, even after high school.

So what are the big dreams we should to inspire students to think about? Should we inspire them to go figure out a cure for cancer, perform some valuable social service that can help the needy, improve the world in some other way? All those are important goals, but they are secondary and far less important than the one goal for which a Jew was created.

The Rambam asks in his introduction to Peirush haMishnayos: "Why is man here; for what was he created?" The Rambam answers that mank was created for one purpose alone -- to imbue his soul with the wisdom of G-d. All other wisdom is valuable only to the extent that it enables man to draw closer to that singular goal. The Rambam continues that even if a person lived a holy life of a nazir, perfecting his nature and character, performing mitzvos, avoiding sin and temptation, he would still be imperfect so far as he did not devote himself to attaining the knowledge of G-d.

R' Chaim Volozhiner writes in his Nefesh haChaim (4:30):
"The Torah further surpasses with its illumination and holiness all mitzvos combined. That is, even if a person were to fulfill all 613 commandments with true perfection as required, meticulous in every detail, with proper pure intention, so that every limb and fiber of that person's being becomes a chariot upon which may rest the tremendous sanctity of all those mitzvos, nonetheless, there is no comparison at all between the light and holiness of mitzvos and the light and holiness of Torah which manifests itself upon a person who studies it properly. The root of holiness [of Torah] comes from a much higher source than the root of holiness and great light of even all the mitzvos combined."

This same idea is already found in a Mishna everybody knows and says every day: "...v'Talmud Torah k'neged kulam." Our primary goal in life, the goal which is more important than even other religious achievements and certainly more important than secular studies and achievements, is the study of Torah.

If our educational philosophy is to be molded by the Rambam, certainly a thinker who many champion as their guide in other areas, or R' Chaim Volozhiner, as Volozhin is the mother of all modern yeshivos, or any of the many seforim which echo these ideas, then we obviously need to aspire to become masters of Torah wisdom and knowledge. It makes no sense to aspire to and idealize the baker who provides bread for the talmid chacham, or the carpenter who builds his house, or even the doctor who heals his ills instead of idealizing and aspiring to be the talmid chacham himself!

The education that would lead to the goal of gadlus in Torah, namely intensive immersion in learning for the majority of the day every day, is certainly not for everyone. The world will have its bakers and carpenters, its investment bankers and lawyers, and we need educational institutions that will give everyone some connection to Torah and a love of learning. Just because you can't be Derek Jeter is no reason to give up baseball, and just because you are not the Rav or R' Ahron Kotler is no reason not to learn. Aderaba, within your own limits learn and support learning. But the pragmatic concession to reality does not mean we should make a philosophical concession and idealize the investment banker or scientiest as spiritually equivalent to someone tucked away in a beis medrash pouring over the words of R' Akiva Eiger and the Ketzos. We all can't be sitting over a gemara all day, but we all can admire those who do and aspire to come closer to that goal.

Sunday, October 25, 2009

engaging in secular pursuits: "yatzo v'shov" of the raven

Would you play a game of Russian roulette with a gun that has four chambers, one of which is loaded? What if we agreed that if you survive, you get a million dollars -- would you now be willing to play? 75% chance of a million bucks vs. 25% chance of certain death... I know what you're thinking: "Do I feel lucky?"

I think most people would agree that relative to the potential fatal consequences of losing, 25% is a pretty high risk to take, no matter what the potential rewards.

A local Jewish newspaper ran an editorial last week criticizing the choice many make to attend secular college. The challenges posed by the environment of a secular college, both ideological and in terms of shmiras mitzvos, present a danger for Jewish youth, especially for those who dorm. According to some studies as many as 25% of those who attend such colleges leave the fold. This week came the predictable letters to the editor in response justifying that choice. Here are some snippits with my reaction:

"I think most people, would look at a seventy-five percent retention rate and be overjoyed."

I guess some people just always see the glass as half-full, but is 1 in 4 Jews leaving the fold really something to be "overjoyed" over?

"...That is almost certainly more a product of an inferior elementary and secondary education than the result of the permissive atmosphere that sometimes prevails during college."

First of all, who cares what the cause is -- bottom line is that a 25% attrition rate is unacceptable. But let's grant the letter writer's assumption -- Dear principals of HALB, HAFTR, HANC, etc., what does a 25% attrition rate tell us about the state of modern orthodox elementary and secondary education which encourages and condones choices that lead to these abysmal statistics?

"Then there were some famous rabbis who studied before the war at the University of Berlin — Rabbi Soloveitchik, Rav Hutner and others."

And your child is the next R' Soloveitchik? And U. of Penn is just like Berlin before the war?
Does the letter writer really think R' Hutner would condone dorming at a secular college? And might it not be a good idea to first emulate the learning of R' Soloveitchik and R' Hutner and then have a debate about secular college?

"Finally, there is a growing fundamentalism and conformity in the Jewish colleges, which does not encourage intellectual growth."

Indeed, your child may go to yeshiva and be brainwashed to learn Torah, be more shomeir mitzvos, and have lots of yiras shamayim. Better to take that 25% chance of his/her becoming an apikores than chas v'shalom risk him/her becoming a chareidi.

For some people, there is no question that secular college offers an advantage that YU or Touro do not. If your heart is set on a career in engineering or science and were accepted to MIT, you would be setting yourself up for disappointment if you turn that offer down and pursue some lesser educational option alongside yeshiva. But by the same token, one is setting oneself up for religious failure if one thinks that study at secular university can be grafted onto avodas Hashem without sacrifice and challenge. Relishing the situation and portraying it as somehow superior to full immersion in a Torah environment is naive and misguided. And truth be told, it's not just the university, but the secular workplace as well which poses challenges, and it requires constant reinforcement of Torah values to emerge spiritually unscathed from the daily grind.

The Noam Elimelech uses the image of the yonah and the raven from Parshas Noach to reflect upon two different types of personalities. The yonah emerges into the world, "v'lo matzah manoach l'kaf raglah," and it finds no resting place. These are people who simply disdain all that the physical world offers and want no part of it, but that is certainly not the path for the masses.

The raven is called an "orev," a name which shares the same root as "ta'aroves," a mixture. Most of us lead a life where we try to balance a mixture of different interests and responsibilities, some secular, some religious. The raven emerges and travels "vayeitzei yatzo v'shov," darting away from the ark but then returning, constantly repeating the cycle again and again. For those who choose to engage in the secular, the key to spiritual survival is to emulate this process -- engaging in the secular world, be it for the sake of work or education, as required, but then immediatly returning to the safe haven of the ark.

Thursday, October 22, 2009

the nature of chiyuvei shemira

We have not done any lomdus in the past week, so time to make up for it. My son is learning Bava Kamma in 10th grade and asked the following kashe, which I thought was pretty amazing, but I'm obviously biased : ) He pointed out that R' Elchanan in Koveitz Shiurim Pesachim #17 discusses how to understand the nature of the chiyuvim on shomrim when things go wrong, e.g. an item is lost or stolen -- Is the penalty of payment a result of the Torah imposing a punishment or obligation to make restitution on the shomer, or is the restitution a function of the agreement between the shomer and the mafkid, similar to a contractual obligation?

Without going through R' Elchanan's discussion, one can at least prove that a sho'el is obligated to make restititution by virtue of his agreement with the mafkid. The halacha is that a shoel must always return or pay for the object he borrows, even if the object is lost or destroyed by accident (with the exception of accidental breakage that occurs during normal usage). Yet, Tosfos (Bava Kama 27b d"h u"Shmuel [however, see Ramban, B.M. 82 who disagrees]) holds that a person is not liable for damages (nezek) that occur in a completely accidental mishap -- the Torah never imposes a penalty in cases of oness gamur. Why then is a shoel obligated to pay in a case of oness gamur? The answer must be that even though the Torah does not obligate payment, the shoel assumed that added liability by virtue of agreeing to the terms of shei'lah with the mafkid.

Here's the catch: Bava Kama (4b) quotes a barysa in the name of R' Oshiya that lists 13 avos nezikin, counting among them the four shomrim. Each shomer is counted as a separate av l'nezikin because each has a unique halachic set of rules that govern the shomer's obligation to make restitution for theft or damage. But wait a minute, said my son -- a shoel is unique only in that he pays even in cases of ones, which no other shomeir must do. The reason a sho'el pays in cases of ones has nothing to do with the halachos of nezikin imposed by the Torah -- his obligation stems from his kabalas achrayus, his self-imposed agreement with the mafkid! Why then does this count as a separate category of av nezikin?

I don't feel so bad for being stumped because his rebbe was also stumped. We will see if he comes up with anything.

Wednesday, October 21, 2009

was Chavah told not to eat the eitz hada'as?

I’ve suddenly gotten busy, so less time to post. The Chizkuni quotes a Midrash which we don’t have: R’ Yehoshua was asked how we know Chavah was commanded not to eat the eitz hada’as. (The prohibition against eating the eitz hada’as in ch. 2 is actually written before Chavah is built from Adam.) When I presented this question to a few people, their response was that the command not to eat was not given to man, Adam in the particular, but to mankind (the actually pasuk refers to ha-Adam). Interestingly, this is not the Midrash’s answer.

The first answer given by the Midrash is that Chavah was built from a side/rib of Adam. The command not to partake of the eitz hada’as applied to every limb and organ of Adam, even those parts of him that were now part of Chavah. R’ Chaim Shmuelevitz quotes this answer in his Sichos Mussar and elaborates on this idea of being mekadesh every part of one’s being.

R’ Chaim does not quote the Midrash’s second answer, which I found even more interesting. The Midrash says that since Chavah responded to the snake by saying that she could not eat from the eitz hada’as, she could in fact not eat from it.

Some people I quoted this to reacted by taking the Midrash to mean that since Chavah acknowledged the prohibition, there must be some source for it, e.g. the command was given to mankind, or maybe m’sevara it made sense. But if that were the case, if the Midrash is just telling us a siman that there was an issur, then ikar chaseir min hasefer – why not tell us the source for that issur? Why give us a proof that there was an issur, which was never in doubt, instead of telling us directly what the source of that issur was, which was the question raised?

It sounds to me like the Midrash is telling us that it was Chavah’s acceptance of the issur of eating eitz hada’as, irrespective of whether she was commanded not to do so, which bound her to not eat. By way of analogy, perhaps the issur could be compared to a neder. What emerges from this approach is a different spin entirely on Chavah’s sin. It was not eating per se which was wrong (as she had never been told not to eat!), but rather what was wrong was that by eating she engaged in hypocrisy – on the one hand, she verbally accepted the prohibition as binding upon herself, while on the other hand she acted as if she was free to do as she pleased.

Monday, October 19, 2009

breaking plate at tena'im

My wife was wondering why mothers/mothers-in-law are given the job of breaking a plate at the signing of tena'im. I don't know an answer -- If you do, please reply to her query here. (Note: the question is not why a plate; the question is why this task is given to the women.)

our right to Eretz Yisrael and kiddush hachodesh

The first Rashi’s on chumash asks why the Torah begins with the story of creation instead of with the first mitzvah of kiddush hachodesh. Rashi answers that the story of creation serves to justify our right to Eretz Yisrael. Since G-d is the Creator, he has right of eminent domain and can award land to whomever he chooses. Last week I presented Rashi’s answer as a negation or retraction of his hava amina – the pragmatic need to justify our right to Eretz Yisrael forces us to abandon the logical starting point of Kiddush hachodesh in deference to the priority of answering our critics.

The Kli Chemdah does not see Rashi's answer as a retraction of his hava amina. His approach is build around the view of Ramban, who writes (VaYikra 18) that the Torah is ideally meant to be fulfilled only in Eretz Yisrael. The observance of mitzvos outside of Eretz Yisrael is just practice until we can achieve that ideal goal. Ramban later in Sefer Braishis writes that Ya’akov Avinu married two sisters contrary to Torah law because at that time he was residing outside Eretz Yisrael where the obligation to perform mitzvos is not in full force.

Why does the Torah not start with the details of the first mitzvah, kiddush hachodesh? Because the observance of mitzvos in an ideal sense is only in Eretz Yisrael, and therefore, before we can even begin to speak of any mitzvos, we must first explain our claim to Eretz Yisrael.

I would like to add something to this Kli Chemdah. The Rambam writes that Kiddush hachodesh must be done by the beis din hagadol in Eretz Yisrael (see mitzvos aseh 153 in SH”M). The cheshbon, the calculation that we rely on to determine when to make rosh chodesh and leap years, is not what effects kiddush hachodesh – the cheshbon just serves to reveal (giluy milsa) of what beis din has been mekadesh. The Rambam adds that if theoretically there were no Jews living in Eretz Yisrael (an occurance G-d would never allow to happen), there would be no mechanism for kiddush hachodesh to occur.

How can there be kiddush hachodesh in Eretz Yisrael today without a functioning beis din? R’ Soloveitchik explained (see the essay in Koveitz Shiurei Torah) that beis din hagadol served two functions: 1) they were the supreme judicial body; 2) they served as the representatives of the community of klal yisrael. The power of kiddush hachodesh is invested not in the judicial role of beis din, but in their role as representatives. Today, when we lack their representative role, it is the behavior of the tzibur itself, the observance of the community of Jewish people residing in Eretz Yisrael, which establishes Rosh Chodesh.

Based on this, perhaps one could suggest that Rashi introduces our claim to Eretz Yisrael not just because mitzvah observance in general ideally must take place in the context of Eretz Yisrael, but specifically because the mitzvah of kiddush hachodesh, the first mitzvah of the Torah, the mitzvah which Rashi thought should open the Torah, is possible to fulfill only given the presence of the Jewish people to Eretz Yisrael.

Friday, October 16, 2009

eating from the eitz hada'as -- an aveira lishma

The Meshech Chochma explains that the argument of the snake was far more subtle than simply telling Chavah to ignore G-d’s command to abstain from eating the eitz hada'as. The snake acknowledged that G-d had indeed commanded not to eat the fruit, but explained to Chavah that the reason for the prohibition is because eating the fruit would bring one to tremendous closeness with G-d -- this is the “knowledge” that would be gleaned by eating. Why then did G-d say that one who eats would die? Death, explained the snake, was not a punishment, but a consequence of the knowledge attained. It is impossible to remain involved in the temporal needs and occupations of this world and at the same time achieve the degree of spiritual ecstasy promised by eating the forbidden fruit. Therefore, one who eats must be prepared to die -- the path to spirituality demands complete surrender of existance in this world. Eating would be an aveira lishma!

The pasuk, "Lo mos temusun...," should be read as follows: "Lo!" -- No, the prohibition and punishment are not as you understand. "Mos temusun" -- Indeed, you shall certainly die if you eat from the tree, but not as a punishment, but rather, "Ki b’yom achalchem mimenu v’nifkechu eineichem" -- Because by eating your eyes shall be opened to spiritual wonder and you will no longer belong chained to mere physical existance.

After Adam and Chavah ate, they were forced to hide from G-d’s presence. Consuming the fruit produced the opposite effect they had hoped for -- they found themselves distanced from G-d, less spiritual beings than they had been earlier. G-d challenged them, “Have you eaten from the tree which I commanded not to eat from?” The pasuk repeats the command "lo tochal mimenu" to reinforce that Hashem expected obedience to the simple meaning of His words -- "Don't eat." All the philosophical justifications and elaborate explanations for why circumventing that command might be a good idea just confused and obfuscated what should have been simple.

Thursday, October 15, 2009

meshech chochma on why kayin's offering was rejected

Why was Kayin's korban rejected? The Meshech Chohcma explains that in Sefer VaYikra the Torah prohibits bringing date honey as an offering (2:11-12). Not only is date honey not acceptable, but no fruit is acceptable as a korban. Therefore, Kayin's korban from his crops was rejected, while Hevel's offering of animals from his flock was accepted.

The Meshech Chochma offers an insightful rationale for this halacha. Items which are acceptable as sacrifices all share the common denominator of requiring an investment of human effort in their production. Wheat is turned into flour before being used for menachos or baked into lechem hapanim; grapes are processed and turned into wine before being offered as nesachim; an animal is only acceptable as a sacrifice after it is eight days old because only after eight days does it require the farmers care. When one of these items is offered, the farmer makes a sacrifice not only of the object itself, but also sacrifices the labor and effort that he invested in producing the offering. Since fruits naturally ripen on the tree without any need for human intervention, their sacrifice does not demonstrate that same dedication of human effort. Therefore, they are unacceptable as a korban.

Wednesday, October 14, 2009

why include the story of creation

Rashi opens his commentary with the question of why the Torah concerns itself with the story of creation – why not begin with the first mitzvah, as ostensibly Torah is a book devoted to a discussion of mitzvos, not history or science. Ramban takes issue with Rashi’s question and argues that without the story of creation is essential to establish our faith in G-d as Creator.

One could explain the machlokes as a dispute over what the text of Torah shebk’sav should incorporate. Rashi might agree that belief in G-d as creator is an essential component of faith, but might see that belief as something which should or could be transmitted through tradition or torah sheba’al peh without necessitating a parsha in chumash. (I think it goes without saying that Rashi does not deny that belief in G-d as Creator is necessary; the mitzvah of Shabbos, among others, is stripped of meaning without that.) Read in this light, Rashi’s conclusion that the parsha is included as a means of justifying the Jewish people’s claim to Eretz Yisrael by virtue of its being gifted to them by G-d, the Creator, is not a philosophical justification for the parsha, but is simply an acceptance of the need for pragmatic public relations.

The Sefas Emes (5636) offers a more philosophical analysis of the machlokes in which he takes a different approach to the Midrashic lesson we learned yesterday about G-d’s offering Torah to Eisav and Yishmael and their rejecting it. Torah exists and can be read on many levels, from being a mystical code which consist completely of G-d’s name, as Ramban writes in his introduction, down to a practical manual that addresses the most mundane details of life. This is the meaning of the Midrash that G-d offered the Torah to Eisav and Yishmael – He created a Torah which can be understood not just by the most exalted saints, but which can even speak to an Eisav or a Yishmael on their level. While R’ Bloch focused on the rejection of Torah by the nations as evidence of its incompatibility with all else except the Jewish soul, Sefas Emes focuses on the hava amina of it being offered to others as a sign of Torah’s universal message.

Using this Midrash as background, Sefas Emes explains the difference between Rashi and Ramban by invoking a dichotomy he discusses in many places – emes vs. emunah, faith vs. truth. Faith is only needed in the absence of certainty or truth, and vice versa, truth, certain knowledge precludes the need for faith.

Rashi is not just addressing the narrow issue of what belongs in the text, but is begging the broader philosophical question posed by Ramban’s premise– why indeed is there a need for a parsha teaching “emunah” in G-d as creator? For the Jewish heart, G-d being the Creator and master of the universe is a truism, emes, and not merely the subject of faith.

Rashi’s answer is that that G-d did not only give us a Torah which presupposes the certainties of knowledge in the Jewish heart; He gave us the same Torah which He had offered to Eisav and Yishmael, a Torah which addresses even those for whom the truth is unclear. This is the meaning of the pasuk in Tehillim which refers to our receiving the “nachalas goyim,” the portion offered to the non-Jews. Existentially, the Jewish heart is predisposed to acknwoledge the emes of ratzon Hashem, but to serve as the conduit of the dvar Hashem to an imperfect world that does not always see the truth, we were given a Torah with teachings of emunah.

Monday, October 12, 2009

neshomos suited for Torah

Dashening the pasuk "Hashem m'Seir ba...." Chazal explain that Hashem went to Eisav and Yishmael and the other nations and offered them the Torah before giving it to the Jewish people. Each nation asked what was in the Torah before answering. When Eisav heard the Torah prohibits murder, they declined to accept it, as they could not imagine life without murder. After hearing the prohibitions of theft, of arayot, etc. nation after nation declined the Torah, each unable to fathom life without the particular slice of immorality that characterized their society. Only the Jewish people accepted Torah unconditionally, without even asking what it contained.

Of course G-d did not literally go nation to nation and consulting their Prime Minister or President as to whether they wanted the Torah. What the Midrash means, as the Maharal explains in Tiferes Yisrael, is that every nation of the world has ingrained in its neshoma some trait that is antithetical to a Torah lifestyle, be it murder, robbery, immorality. Only the Jewish people have the neshomos able to absorb the dvar Hashem in its totality.

Among the published correspondence (that I mentioned here) of my wife's grandfather, R' Dov Yehudah Shochet, is a tshuvah to him from R' Avraham Bloch, R"M of Telz, and his response regarding whether one may teach a Torah or Bible class to a non-Jewish audience. Chazal learn (Chagiga 13) from the pasuk, "Magid devarav l'Ya'akov..." that in addition to the prohibition of a non-Jew learning Torah there is a seperate prohibition against us teaching them Torah. R' Bloch interestingly suggests (without referencing this Maharal) that the reason behind this issur is this incompatibility between the neshoma of a non-Jew and words of Torah.

Interesting aside #1: R' Bloch proves from the fact (B.K. 92) that Avraham assumed the Plishtim were immoral because they first questioned him about his wife rather than offering food and lodging that there is a chiyuv even for non-Jews to learn those parts of Torah that teach midos and derech eretz. The kal v'chomer to what we should be learning and teaching is obvious.

Interesting aside #2: The teshuvah from R' Bloch opens with a mazal tov to RDYS on the birth of a girl (if I figured out the dates right, that newborn would be my MIL!) and a bracha l'gadla l'chupah u'lma'asim tovim. He then adds that perhaps he should use the nusach of the bracha l'gadla l'Torah l'chupah u'lama'asim tovim as in the climate of the times it is impossible to raise a bas Yisrael without giving her an appropriate Torah chinuch. The kal v'chomer to our times is obvious here as well.

Friday, October 09, 2009

simchas torah and what made Moshe unique

The Torah ends by referring to Moshe’s greatness in performing “signs and wonders”. Ramban asks what was unique about Moshe in this regard that deserves to be singled out for praise – many other prophets also performed miracles and wonders for the Jewish people?

It is the Tiferes Shlomo (Radomsker) that clued me in to look at the end of the last pasuk in the Torah for an answer, but I am going to take a slightly different approach than he does. A thought experiment: Imagine if you could transport a nuclear reactor back in time to the Middle Ages and teach people how to harness its power and maintain it. Even with the mechanical knowledge of how to keep the reactor working, the people would undoubtedly view the whole production of energy as a miracle. Fast forward to 2009 and the perception of the reactor being a miracle vanishes. What’s the difference? The answer is that we not only know how to keep a reactor running, but also understand the theory behind how it works. Atomic reactions obey certain laws that have been discovered and explained. It’s not a miracle – that’s how the universe works.

To go a step beyond the Ramban, the magicians of Egypt could also perform “miracles” and suspected Moshe of being no different in ability than them. Why indeed was Moshe different? I think the answer goes beyond distinctions about the scale of the miracles or the size of the audience who witnessed them and relates to our example of the reactor. Other prophets, magicians, and the like performed miracles by becoming the channel for or channeling forces they could not understand and could not control into this world. They were “mechanics” or instruments in the hands of G-d. What made Moshe different was that he performed miracles “l’einei Bnei Yisrael,” as the last pasuk in the Torah tells us. It is the sages and scholars who are usually referred to as the “eini ha’eidah” because wisdom gives one the ability to discern what others miss. Moshe gave us not only miracles, but he gave us the context of a blueprint to the spiritual "laws" and theory that explained those miracles and made them possible.

R’ Chanina ben Dosa did not consider lighting a lamp filled with vinegar to be miraculous – “He who said oil should burn can also say vinegar should burn.” It’s only magical and miraculous if you don’t understand that there are spiritual laws just as there are physical laws and those laws can produce wonderful results.

The Minchas Chinuch famously asks why a person who violates a Torah law is not also inherently in violation of the prohibition against disobeying a prophet. This gets to the heart of why Moshe was unique. A prophet or miracle worker can describe the “what” of their experience and record it in a book of nevuah. The book of Moshe's deeds and prophecy is called Torah, not nevuah, because only Moshe explained the “why” and “how” and left a system that can be studied and used by all future generations.

Unlike other religious groups which change or collapse with the death of their central charismatic leader, the Jewish people were able to smoothly transition from Moshe to Yehoshua. Everything Moshe did was “l’einei Bnei Yisrael,” it fit into a system of thought and ideas that could live on beyond his personality and deeds.

The obsession with magical remedies and cults of personality in our times needs no elaboration. Simchas Torah reminds us that miracles and great leaders are valuable only to the degree that they help illuminate “einei Bnei Yisrael”, expanding our minds with a greater appreciation for Torah as a system of laws and values that we can study and live by. It is those laws and values that should capture our attention.

the lesson learned from the history of Dan

Moshe Rabeinu was shown all of Eretz Yisrael before his death, right up until the border of Dan (34:1). Rashi explains that Moshe was shown the people of Dan engaged in idol worship, but was also shown the rise of Shimshon who would redeem them. Why did G-d spoil Moshe’s final moments by showing him the Jewish people’s fall to idolatry? Why could He not allow Moshe to revel in the success and hopeful future of the Jewish people without burdening him with an image of their failure?

The Shem m’Shmuel answers that these two images – the idolatry of Dan and the rise of Shimshon from Dan – are not two separate visions, but go hand in hand. Hashem revealed to Moshe that even when the Jewish people fall to greatest depths, they can give rise to a Shimshon, a shofet so great that Ya’akov Avinu saw in him the potential to be Moshiach. Moshe now knew that his death and the inevitable retreat from the glorious heights attained by the “dor de’ah” would not lead to permanent downfall.

Thursday, October 08, 2009

why no bracha on sukkah on shmini atzeres

Rav Kasher has a beautiful overview of the Rogatchover’s thought in the intro. to the Devarim volume of the Rogatchover al haTorah where he presents some of the classic chilukim and conceptual constructs of the Rogatchover and gives examples of sugyos where these ideas can be applied. It is similar in content to the amazing Mefa’aneyach Tzefunos. One of the topics he addresses is why we sit in the sukkah on Shmini Atzeres but do not recite a bracha, unlike other mitzvos performed because of sfeika d’yoma which do warrant a bracha. According to the Rogatchover (into p. 22), dinim d’oraysa tell us about the halachic nature of reality, i.e. they are dinim in the cheftza; dinim d’rebbanan impose legal obligations on the gavra (see post here). The chachamim can impose a chovas hagavra to sit in a sukkah on shmini atzeres, but cannot create a halachic cheftza of sukkah once sukkos has ended. Without a cheftza shel sukkah, no bracha can be recited. (See this post where we discussed a similar distinction of the Rogatchover between eating in the sukkah as as a kiyum of defining the cheftza shel sukkah as a makom dirah vs. the chovas hagavra to perform the act of eating only while in a sukkah.)

I heard a different answer to this question in the name of R’ Soloveitchik that also uses a classic Rogatchover-ish sevara. When two halachic categories overlap, the result can be either a harkavah shechnit, e.g. the two categories co-exist side by side, or a harkavah mizgit, i.e. the two categories combine and form a new synthesis. For example: the halachic status of a chatzi eved chatzi ben chorin might be the same as the full status of eved and ben chorin overlapping and co-existing, or might be a completely new status that is a synthesis of both elements (see Avi Ezri, Hil. Pesachim). Another example: bein hashemashos may reflect overlapping states of day and night, or might be a new time status that contains elements of both day and night (see Shiurim l'Zecher Aba Mari). R’ Yosef Engel in Beis haOtzar similarly discusses whether yamim tovim which overlap with Shabbos have two seperate two kedushos hayom which co-exist, or whether there is a categorically new kedushas hayom formed from the combination of both. R' Soloveitchik applied this same chakirah to Shmini Atzeres, which is both a holiday in its own right as well as an extension of sukkos because of sfeika d’yoma. Instead of viewing those two identities as co-existing side by side, a harkavah shichnit, R’ Soloveitchik viewed them as combining to form a new unique halachic identity. This new synthesis kedushas hayom is not the same as the normal kedushas hayom of sukkos and therefore does not obligate reciting a bracha on sukkah.

temporary ownership - kinyan l'zman

On the first day of Sukkos you need to own a lulav to be yotzei ("lachem"). You can't borrow a lulav, but you can accept someone else's as a matanah, a gift. The giver has a right to stipulate that the lulav must be returned, a matanah al menas l'hachzir. The Rosh writes that to satisfy this condition the borrower must be makneh the lulav back to the original owner with a formal kinyan (which is why this would not work with a child, who has no right to be makneh things). As we once discussed, the Ketzos (241) disagrees and says a matanah al menas l'hachzir works so long as the object is returned, even without a formal kinyan. According to the Ketzos, matanah al menas l'hachzir is a "kinyan l'zman", a form of temporary ownership in effect for a specific duration of time., e.g. so long as it takes to perform the mitzvah of netilas lulav Once the time is up, the original owner automatically resumes control without a formal kinyan being required. At the heart of the dispute is the following question: is temporary ownership sufficient to satisfy the requirement of “lachem”?

Last post we discussed the case of stolen schach that m’derabbanan is considered part of the sukkah for the duration of sukkos (i.e. the thief has no obligation to dismantle the sukkah and return the stolen goods), but after sukkos, once the sukkah is dismantled anyway, must be returned. The Avnei Miluim (28:53) offers this case as proof that he is right -- ownership of the schach even for the limited duration of a week is considered sufficient to fulfill the mitzvah of sukkah even according to those Tana’im who require "lachem" md’oraysa for sukkah.

Is this proof really ironclad? My son suggested that one can distinguish between these cases. In the case of matanah al menas l’hachzir of lulav, it is the choice by the owner to grant temporary ownership instead of full ownership which is seen by the Rosh as limiting the kinyan, diminishing “lachem”. In the case of the stolen goods, the kinyan lasts only for a week not because of any choice by the owner or recipient, but simply because the chachamim re-imposed the obligation to return the goods after the sukkah was dismantled. (R’ Scheinberg draws a similar distinction in Mishmeres Chaim vol. II.)

does a kinyan derabbanan have a chalos d'oraysa? - stolen schach

Before R"H a fellow blogger bemoaned the lack of attention paid to the Ketzos these days, as bnei torah spend more time delving into the brisker lomdus of the great roshei yeshivos rather than reading classics. Maybe we should devote more time in the coming year to the Ketzos, Shmaytza, and Avnei Miluim... this sukkos piece is a good place to start, as it is two parter; you get twice the lomdus for the same mareh mekomos.

There is a mitzvah to return stolen goods. If you steal a beam and use it in your home, the chachamim made a special takanah as an incentive to tshuvah and allow you to pay for the beam rather than force you to dismantle your home to return it. What if the stolen beam was used in a sukkah? The gemara says that for the duration of sukkos the beam is considered owned by the thief -- he is obligated to repay the original owner, but we do not force the dismantling of the sukkah any more than we would force the dismantling of a home. However, once sukkos is over and the sukkah is dismantled anyway, the original beam must be returned.

Yesterday we discussed whether a kinyan derabbanan has a chalos d'oraysa (parenthetically, someone asked a great kashe in the comments that is worth taking a look at). The Sha'ar haMelech suggests that this case of the stolen beam can help us resolve that issue. Min haTorah the stolen beam is not owner by the thief -- it should be returned. It is only the takanah derabbanan that allows the thief to keep it. QED: by virtue of a takanah derabbanan we have a chalos of a sukkah that is kosher min hatorah!

The Avnei Miluim (28:33) rejects this proof. There is a basic difference between a stolen lulav (for example) and a stolen sukkah (actually, stolen schach). A stolen lulav is pasul because the Torah requires ownership of the lulav as a condition of fulfilling the mitzvah; a thief is not the lulav's true owner. A stolen sukkah is pasul not because the Torah requires ownership of a sukkah -- the reason a stolen sukkah is pasul is simply because stolen goods are unacceptable for a mitzvah purpose (mitzvah haba'ah b'aveira). A kinyan derabbanan may not have a chalos d'oraysa in the sense of being "yours" from a Torah perspective, but a kinyan derabbanan is certainly sufficient to remove the label of "stolen goods" from the object. Think about it this way: if you make a kinyan derabbanan on an item without a kinyan min haTorah, whether or not the object is truly "yours", it is inconceivable that min haTorah you should be considered a thief!

The Avnei Miluim uses this same case as proof in a different controversy - stay tuned for part II.

Wednesday, October 07, 2009

do kinyanei derabbanan have a chalos d'oraysa?

Does a kinyan derabbanan create a status of ownership on a d'oraysa level? This question is debated by the classical Achronim and comes into play on sukkos where the first day requires ownership of lulav and esrog to fulfill the requirement of "lachem". (We once discussed a proof of the Ketzos to resolve this question.)

Perhaps this question is at the heart of the machlokes Rambam and Ran regarding the gemara's warning (Sukkah 46) not to give a lulav and esrog to a child on the first day of sukkos before fulfilling one's own mitzvah. The gemara explains that a child can be koneh the 4 minim, but cannot be makneh the items back. Ran writes that the gemara must be speaking only of a very young child, because the Chachamim made a takanah that slightly older children (p'eutos) can buy and sell things, otherwise sending a child to the grocery story to buy something would be impossible. The Rambam, however, does not draw any distinction.

Apparently the Ran understood that the takanah empowering children to buy and sell is sufficient to allow them to be makneh the lulav back so its owner fulfills "lachem" on a d'oraysa level. The Rambam, however, did not think a kinyan derabbanan has any validity on a d'oraysa level.

The problem with such an approach is that there seem to be many proofs that the Chachamim can through hefker beis din make takanos that have a chalos d'oraysa. A few sugyos in shas (e.g. Kesubos 3) refer to the ability of the Chachamim to annul a marriage by declaring the kesef kiddushin ownerless. Clearly the women effected by such a takanah is not merely no longer married on a derabbanan level!

R' Shlomo Eiger's suggests (Shu"t RAK"E 221) that Chazal may be able to effect removal of ownership on a d'oraysa level, but cannot effect a transfer of ownership to a new party.

The Telzers (both R' Shimon Shkop and R' Y. L. Bloch) reject this distinction. Hefker without the ability to transfer ownership is an incomplete hefker because it has no effect on anyone other than the original owner. (This question fits well with R' Shimon's rejection of the Ketzos' model of hefker that we discussed back here.) R' Yosef Leib concludes that even the Rambam accepts the idea that a takanah derabbanan can effect a chalos d'oraysa in monetary matters. Where the Rambam and Ran differ is regarding the scope of this rule. According to the Ran, once the cat is out of the bag and there exists a takanah to allow children to shop in a grocery store, the same takanah has a chalos d'oraysa with respect to lulav. The Rambam disagrees and argues that the chalos d'oraysa is limited in scope to the narrow context that motivated the takanah's original creation. (Very Telzerish sevara -- the "sibah" is the geder hadin.) In the case of kesef kiddushin, the marriage is annuled; in the case of minor's kinyanim, only with respect to shopping is there a chalos d'oraysa to the kinyan. However, consequences that are a byproduct of the original takanah, e.g. now the child who can go shopping can also return a lulav, are not included in the scope of the chalos d'oraysa.

R' Bloch and R' Shimon's point relates more globally to how dinim derabbanan function. As opposed to dinim d'oraysa that say something inherent and intrinsic about a person or an object, dinim derabbanan just serve a functional need, but do not change the legal status or nature of things. This is a powerful sevara that explains many other ideas.... maybe more another time.

Tuesday, October 06, 2009

mitzvah haba'ah b'aveira

The Torah says that the lulav used for the mitzvah must be owned, "lachem," and therefore a stolen or borrowed lulav is disqualified on the first day of Yom Tov. After the first day, when the mitzvah is only derabbanan, even a borrowed lulav is acceptable. The gemara at the beginning of the third perek of Sukkah quotes a machlokes between R' Yochanan and Shmuel regarding whether a stolen lulav is usable on the remaining days of Yom Tov. R' Yochanan writes that a stolen lulav is disqualified for the duration of Yom Tov because of mitzvah haba'ah b'aveira. Shmuel argues that since a borrowed lulav is acceptable on the remaining days, a stolen lulav is also acceptable. Tosfos asks, a lulav or esrog which is disqualified because it is not hadar is unacceptable for all eight days of Yom Tov -- why does the disqualification of not being hadar apply for the duration of Yom Tov but not the disqualification of being stolen? How does the fact that a borrowed lulav may be used justify using a stolen lulav?

Perhaps one could answer the question by using the chakirah of the Brisker Rav which we discussed in the past -- is the takanah of taking lulav for the duration of Yom Tov done zecher l'mikdash an extension of the mitzvah of lulav or a new chiyuv of making a zecher l'mikdash? If it is a new chiyuv of zecher l'mikdash, one can perhaps distinguish between the psul of hadar, which is inherent and visible in the object of lulav and esrog, and the psul of gazul, which relates to the behavior of the person performing the mitzvah but has no visible effect on the object.

Since I mentioned my wife's grandfather's Telzer roots, I can't resist offering a Telzer answer. R' Yosef Leib Bloch explains that the machlokes R' Yochanan and Shmuel revolves around how to define mitzvah haba'ah b'aveira. The Sha'ar haMelech suggests that mitzvah haba'ah b'aveira applies only where the performance of a mitzvah could not be accomplished if not for the aveira. Based on this, the gemara's explanation of Shmuel -- "m'toch she'yotzei b'shaul yotzei b'gazul" -- makes perfect since. The very possibility of borrowing a lulav disconnects the act of theft from being an integral part of the mitzvah and disqualifying it.

R' Yosef Engel (Lekach Tov 12:2) takes a more pilpulish approach. He notes that Rashi on the mishna explains the requirement of hadar based on the pasuk of "zeh K-li v'anveihu", which is the source for hidur mitzvah with respect to all mitzvos. Why would Rashi not cite the pasuk of "pri eitz hadar" which applies specifically to the 4 minim instead of the more general din of hidur mitzvah? R"Y Engel explains that the psul of "hadar" written by the 4 minim is me'akeiv even bdi'eved; the general rule of hidur mitzvah is not. What disqualification the Mishna is referring to underlies the dispute between R' Yochanan and Shmuel. The Mishna lumps together the disqualifications of a stolen lulav and a lulav that is not hadar. If the Mishna is referring to the general din of hidur mitzvah, than just as it is not me'akeiv, so too the psul of gazul is not me'akeiv as a disqualification on other days except for the first. If the Mishna is referring to the specific din of hadar, then just as it is me'akeiv throughout sukkos, so too, the din of not taking a stolen lulav is me'akeiv.

Monday, October 05, 2009

careful who you lend your lulav to!

My wife observed a young man in shul after davening acting very gentlemanly by handing his lulav to his kallah-to-be in the ladies' section so she could fulfill the mitzvah of netilas lulav. My wife immediately turned to me and raised a halachic red alert: did the kallah-to-be just become the kallah!? It's five months until Purim, but my wife remembered the Rama (O.C. 695) that says a man should not send mishloach manos to a single woman lest it be taken as an indication that she is mekudeshet to him. The same should apply to the mitzvah of lulav.

There is, however, a difference between lulav this year and mishloach manos. Mishloach manos is a gift which is meant to be kept; a lulav (on all days except the first) is merely borrowed for use to fulfill the mitzvah. Additionally, it is not that we suspect the mishloach manos of being used for kiddushin -- the suspicion (see M.B.) is that the kiddushin already took place and the mishloach manos are engagement gifts (sivlonos) after the fact. While mishloach manos are indeed meant as gifts, a lulav is not.

All that being said, the Halichos Beisa concurs with my wife and recommends that a man avoid giving his lulav to a single woman. Be careful who you lend your lulav to -- you may be getting more than you bargained for!

(For those who are already married, there is another halachic problem that comes up when we perform the mitzvah on the first day of Sukkos. On the first day only the mitzvah must be "lachem", meaning you must own, not borrow, the lulav and esrog. However, the halachic rule is "mah she'kansa isha kansa ba'alah" -- a woman has not independent ability to acquire property or goods; whatever she buys or takes possession of belongs to her husband. How then can she ever acquire her own lulav and esrog? Whether mah she'kansa isha... blocks kinyanim on a d'oraysa level and if it does how and whether we need to circumvent it is a discussion for another time, as it is a non-issue this year. See the notes at the end of the Bikurei Ya'akov.)

stolen food on the first night of sukkos: mitzvah haba'ah b'aveira?

R' Chaim Brisker's explains that the psul of mitzvah haba'ah b'aveira is a disqualification of the cheftza shel mitzvah. One proof: according to the Rambam listening to tekiyos from a stolen shofar is not a mitzvah haba'ah b'aveira because the cheftza shel mitzvah is the sound produced by the shofar, not the shofar itself.

Given this framework, my son said over a nice chakirah from R' Baruch Ber: if one ate stolen food on the first night of sukkos, would that be a mitzvah haba'ah b'aveira? Is the cheftza shel mitzvah the sukkah, or since there is a unique chiyiuv on the first night to eat a k'zayis (as we discussed last week) in the sukkah, it is the food which is the cheftza shel mitzvah?

I think the answer depends on the machlokes Rishonim regarding whether there is a mitzvah on the first night to eat a k'zayis in the sukkah even in the rain: According to the Rambam who opines that there is no chiyuv in the rain, that chiyuv to eat a k'zayis is just a means of fulfilling yeshivas sukkah -- where the mitzvah of sukkah does not apply (e.g. in the rain), there is no chiyuv to eat. The cheftza shel mitzvah according to this view would be the sukkah. However, according to those Rishonim who hold one must eat a k'zayis in the sukkah even in the rain, the chiyuv is one of the eating, not one of sukkah; hence there is no exemption because of rain. The cheftza shel mitzvah according to this view would be the food. In short, what the cheftza shel mitzvah is depends on whether you define the special mitzvah on the first night as one of achila or dirah.

Friday, October 02, 2009

ishbitza on sukkos

The Ishbitza contrasts the mitzvah of sukkah, which can be fulfilled passively by sitting or sleeping, with the mitzvah of lulav, which is done by waving the lulav and esrog. Sukkah represents the innate abilities Hashem gives each person; lulav represents that which we acquire through our efforts and labor. With this distinction we can explain why there is a halacha of “lulav hagazul” but no halacha of “sukkah hagazul” (see the sugya of karka eina nigzeles, sukkah 31). One is born with a precise measure of talent and ability, no more and no less; however, one can intrude on another’s cheilek through one’s actions. We can also better understand why on Shabbos, the day when we celebrate Hashem’s actions and curtail our own, we perform the mitzvah of sukkah but refrain from taking the lulav. I would suggest that taking the different species of lulav, esrog, hadasim, and aravos together is seen as a metaphor for Jewish unity because unity is something we must create through our efforts, not something which we can take for granted as innate.

In another teaching, the Ishbitza explains that we always encounter sukkah after victory. The first mention of sukkah in the Torah appears after Ya’akov’s victory over the angel he battled and his safe escape from Eisav. When the Jewish people left Egypt victorious over their enslavers they fled from Ra’amses to Sukkos. When we emerge victorious from the days of judgment we immediately celebrate by building a sukkah.

I think there is a connection between these teachings. Victory invites the danger of hubris, “kochi v’otzem yadi.” Victory can also be temporal and fleeting, as success is often followed by letdown; life seldom progresses in a linear trajectory upward, but meanders in fits and bursts, ratzo v’shav. Sukkah returns our focus from what we have achieved to who we are, from doing to being.

Thursday, October 01, 2009

when it rains on sukkos

There is rain in the forecast for this weekend in NY, so it pays to review the halachos of yeshivas sukkah on the first nights beforehand to be prepared for contingencies. If it is raining enough to spoil your meal in the sukkah, under normal circumstances you should leave the sukkah and eat indoors. Remaining in the sukkah under those circumstances is not a “chumra” of any kind; it is an act of foolishness. The first night of sukkos, however, may be different. The gemara derives from a gezeirah shava to Pesach that just like there is a mitzvah to eat matzah on the first night of Pesach, there is a mitzvah to eat a k’zayis in the sukkah on the first night of Yom Tov. This is why we wait until dark before eating in the sukkah – just like the Pesach seder cannot be done before dark, this mitzvah of eating in sukkah cannot be done before dark. The Mishna Berurah has an interesting chiddush based on an extension of this idea: just as (according to the GR”A) there is a kiyum mitzvah in eating matzah all 8 days of Pesach, so too there is a kiyum mitzvah in eating in the sukkah all 8 days of the chag.

The Rishonim debate whether this mitzvah of eating a k’zayis on the first night applies even if it rains. There are two possible ways to explain the debate: 1) Is the chiyuv to eat learned from the gezeirah shavah an independent din with its own parameters or an extension of the chiyuv of mitzvas sukkah? If it is an extension of the chiyuv of sukkah, then the same exemption for rain that ordinarily applies to sukkah applies in this case as well; if it is a new independent chiyuv, then the exemption from the mitzvah of sukkah in case of rain has no bearing. 2) A second possible explanation: Does rain exempt the chovas hagavra of the person to eat in sukkah, or does it disqualify the cheftza of the sukkah? If rain disqualifies the sukkah, there is no point to eating therein. If rain exempts the individual from the normal mitzvah of sukkah, there still remains on the first night the additional obligation of eating k’zayis generated by the gezeirah shava. The Rama (639:5) paskens like the view of the Ra"n that there is a chiyuv to eat in sukkah even if it rains; the Vilna Gaon paskens like the view of the Rambam that there is no chiyuv. Since we are faced with a machlokes regarding a mitzvah d’oraysa, the best bet is to try to wait and see if the storm passes and one can avoid the situation of safeik. The Magen Avraham writes to wait until midnight (but not later because, returning to our limud from Pesach, the latest time for the seder is midnight), but the Mishna Berurah quotes other Achronim who note that there is no formal shiur -- the amount of time to wait depends on one’s tolerance and that of one's familty, taking into account the mitzvah of simchas yom tov.

If the rain does not stop, kiddush should be recited in the sukkah and a k’zayis of challah eaten without a bracha of leishev ba’sukkah (to avoid a safeik bracha). If the rain lets up and one is still awake, one should go out to the sukkah, eat a k'beitza of challah (see the first comment to this post), and recite leishev ba'sukkah. One would therefore be yotzei the mitzvah of sukkah even according to the view that holds the k'zayis eaten in the rain does not count.

The only difference between the second night and the first according to Mishna Berura is that on the second night one can start the meal inside and eat a k’zayis afterwards in the sukkah. The reason we do the opposite on the first night (we start with the k’zayis in the sukkah) is to avoid having to add an extra bracha of she’hechiyanu, once at the start of the meal during kiddush and once at the end of the meal when eating the k'zayis and sitting in sukkah for the first time. On the second night this is not an issue because she’hechiyanu on sukkah was already recited the night before.

The Magen Avraham writes that on the second night one need not eat a k’zayis in the sukkah in the rain. This view seems easy to explain using the principle of sfeik sfeika: safeik whether it is Yom Tov or chol, and even if it is Yom Tov, safeik whether the halacha is like the Ran who requires eating k’zayis in the sukkah in the rain or not. (One might argue further that m’ikar hadin Yom Toc sheni is not even a real safeik but is vaday a weekday, but we treat it as Yom Tov because of minhag/takanah.) The Aruch haShulchan writes that the minhag follows this Magen Avraham, but again, the Mishna Berurah disagrees. Mishna Berura further writes that one should preferably wait before eating even on the second night.
(Please do not rely on this post for psak: see the S"A in siman 639 and the relevant Achronim. And hopefully this post will not be relevant l'ma'aseh anyway and we get some nice weather.)