A Question of Jewish Law

July 25, 2011

Bull Fights …

Filed under: miscellaneous — chaimweiner @ 11:22 pm

Question: Is it permitted to watch a bullfight?

Answer: There is no doubt that bullfighting is against the spirit of the Torah and basic Jewish values. The obligation to prevent the suffering of animals, known as tzar ba’alei hayyim, has its roots in the book of Exodus. It is derived from the commandment to unload our fellow’s animal if it was buckling under the weight of its load [Ex. 23:4]. The Talmud in tractate Shabbat [128b] discusses the case of an animal that fell into a pit on Shabbat.  It rules that one is allowed to transgress a rabbinic prohibition and fill the pit with pillows and cushions to enable the animal to crawl out. The reason given is that rabbinic prohibitions are overridden by the scriptural obligation to prevent an animal’s suffering.

It is interesting to note that the steps one takes to prevent an animal’s suffering are apparently greater than what is done in the case of other commandments. For example, circumcising a child on the eighth day is also a scriptural commandment. However, one is not allowed to transgress a rabbinic prohibition in order to fulfil this obligation. Thus, a Brit is delayed if it would involve carrying a knife through a public area on Shabbat, even though carrying is only a rabbinic prohibition. Given this concern for animal welfare, a bullfight, where the bull is intentionally ill-treated to make it go wild, would be strictly forbidden.

Furthermore, many poskim rule that it is forbidden to kill an animal except in the context of Shechita. In Jewish law, even putting down a wild animal that constitutes a public danger requires a court order. The Noda B’yehudah [Rabbi Yechezkel Landau, Prague, 18th Century] forbids hunting because of the likelihood of causing animal suffering. [Part 2, YD 10]

Not only is it forbidden to engage in bullfighting, but even watching a bullfight is forbidden. The Psalmist wrote: Happy is the man who has not walked in the counsel of the wicked and has not stood in the path of the sinners. [Ps. 1:1] Rabbi Shimon ben Pazi comments on this verse: The counsel of the wicked – this refers to the theatres and circuses of the nations. The path of the sinners – this refers to Kanigyon.  [BT AZ 18b] Rashi explains that Kanigyon is hunting for animals with dogs, where the sole purpose is entertainment and enjoyment. The Talmud also states: One who goes to the stadium, or the Karkom, and saw there the snakes and the charmers – this is the place of the scoffers. In this case Rashi explains that the stadium is a place where they hold bullfights.

There are some activities that are more than forbidden. In the case of bull-fights, the prohibition extends even to being a passive observer. Enjoying the suffering of animals is in itself morally wrong. A person must distance himself from it in every way.

Rabbi Chaim Weiner

Based on Ovadiah Yosef, Yachve Da’at 3:61

 

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April 12, 2011

A Searching Question …

Filed under: Festivals — chaimweiner @ 4:19 pm

Question: There is a widely observed custom to hide pieces of bread around the house on the eve of Passover, before searching for the hametz. What is the source of this custom? Is it a proper custom?

Answer: Searching for hametz on the eve of Passover is one of the legal requirements of the festival. The Mishnah at the beginning of tractate Pesachim states: On the evening of the fourteenth [of Nisan] a search is made for leaven by the light of a candle… [Mishnah, Pesachim 1:1] Originally, this search, in which all the hametz was removed from the house and burnt, was the way the house was prepared for Passover. No other cleaning was required.  In time, houses became bigger, cleaning became more sophisticated and the lengthy cleaning process before Passover that we have today became the norm. The result was that by the time we come to search for the hametz on the 14 th of Nisan, the house is already clean and there is (hopefully) no longer any hametz to be found.

This new situation gave rise to an interesting halachic problem: – Can one say a blessing for removing hametz when there is no hametz to remove? There were those who maintained that as there was no longer any hametz in the home, it was no longer possible to say the blessing. In order to remove any doubt as to the validity of the blessing, they instituted the custom of hiding some hametz to be ‘found’ during the search. Opposing them were those who said that the essence of the ‘removing of the hametz’ was the actual search. It didn’t make any difference whether there was any hametz to be found or not. They strongly opposed the idea of scattering new hametz, which they felt was based on a misunderstanding of what the blessing was about. The Rabad of Posquières [Provence, 12 th Century] wrote, “[Concerning] those who put hametz in the cracks and grooves at the time of searching for the hametz, [this] is the custom of women and has no root.”

Further arguments were brought both for and against scattering hametz before the search. The Pri Etz Hayyim 21:5: Chaim Vittal, [Safed, 16 th century] writes in the name of  Isaac Luria, one of the fathers of the Kabbalah, that the custom has its roots in ancient Jewish mysticism. He also says that there is mystical significance in hiding 10 pieces of bread, a custom followed by many today.

On the other hand, R. Moshe HaCohen [Brit Kehuna 2:15b, Djerba, 20 th Century] writes that this custom undermines the original intention of the Mishnah. The fact that people ‘hide’ bread before searching for the hametz results in people searching only for the bread they have hidden rather than properly checking the house for hametz that has been missed. This does not count as a search at all!

Moses Isserlis [Poland, 16 th century] records the custom in his commentary on the Shulhan Aruch which is authoritative for Ashkenazi communities. Sefardi communities have adopted it because it is a Kabbalistic practice. Although there have been some Poskim who have challenged the custom, there is also the fear that should the custom of hiding bread be abolished, people might neglect the actual search which is a legal obligation,[Rabbi Matzliach Mazuz, the Ish Matzliach, Tunisia, 20 th century]. Therefore, the custom should be maintained and accepted practice as it is in all of Israel.

Rabbi Chaim Weiner

Based on Ovadiah Yosef, Yachve Da’at 5:31

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March 14, 2011

Be Betrothed Unto Me …

Filed under: Marriage and Divorce — chaimweiner @ 4:42 pm

Question: A traditional Ketubah indicates the status of the bride – who is described either as a virgin, divorcee, convert or widow. What is the proper way to write the Ketubah of a couple who have lived together before their marriage? What is the proper wording of a Ketubah for a woman who had been previously married to a non-Jew, and is now entering her first Jewish marriage?

Answer: The traditional Ketubah went through many changes before it reached its present form. The Talmud [BT: Ketubot 82b] states:  At first they used to give merely a written undertaking in respect of the kethubah … and consequently they grew old and could not take any wives. It was then ordained … however, when the husband was angry with her he used to tell her, ‘Go to your kethubah’. It was ordained …  Still, whenever the husband had occasion to be angry with his wife he would say to her, ‘Take your kethubah and go’. It was then that Simeon b. Shetah ordained that the husband must insert the pledging clause, ‘All my property is mortgaged to your kethubah’.

The traditional Ketubah states a sum of money the groom is obliged to pay his wife in the case of divorce. This was to guarantee that the wife did not leave the marriage empty-handed. As a young maiden had better prospects of marriage than other women, the prospective husband had to guarantee her higher compensation in the event of divorce. The traditional sum is 200 zuz in the case of a virgin and 100 zuz for any other bride. This is known as the basic Ketubah.

R. Moshe Isserlis [Poland, 16th Century] rules that the Ketubah must also state whether the bride was a divorcee so that it would be known that she was not permitted to marry a Kohen. Other poskim, for similar reasons, have added that the Ketubah should state whether the bride is a widow or convert.. In historical Ketubot there are several other categories that have been used.

The case of a non-virgin bride appears in traditional sources. Maimonides rules that the husband ‘writes her Ketubah like all other young maidens.’ [MT  Na’ara Betulah 1:3] The widespread practice of couples openly living together was unknown in the pre-modern world.  Basing himself on Maimonides, R DZ Hoffman  [Germany, 19th Century] rules that one should not change the traditional wording of the Ketubah, so as not to cause embarrassment. [Melamed Leho’il, EH:23]  It follows that the term virgin in a modern Ketubah simply means ‘previously unmarried’. Thus, in all cases where the bride has not been married before, the term ‘Betulta’ (virgin) is used.

However, where the wife is known in public as a married woman, referring to her as a virgin is inappropriate. In this case, the generic term ittata – literally ‘woman’  – is used. This is what is done in the case of a woman who has children or is a divorcee from a previous civil marriage.

Regarding the sum of the Ketubah, Rabbi Moshe Feinstein  [USA, 20th Century] rules that whenever the term Betulta is used, the sum should be 200 zuz [Igrot Moshe EH Part 1, 101]. There is nothing that prevents the husband  increasing the sum specified in the Ketubah to beyond that demanded by the strict letter of the law, and therefore the Ketubah for a first marriage should be 200 zuz, regardless of whether this is strictly required by law.

Rabbi Chaim Weiner

Based on DZ Hoffman, Melamed Leho’il, EH 23

 

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March 1, 2011

Public Transport on Shabbat

Filed under: Shabbat — chaimweiner @ 10:25 pm

Question: Is it permitted to ride on public transport on Shabbat, assuming that the transport workers are not Jewish and the trains are operating for the general public and not specifically for Jews?

Answer: The Mishnah rules that it is forbidden to ride on an animal on Shabbat. This is a rabbinic prohibition designed to prevent  a person inadvertently cutting a branch from a tree in order to drive the animal forward. Furthermore, the Jerusalem Talmud states that the reason for not riding on animals on Shabbat is to enable animals to rest also. The Shulchan Aruch [OH 305:18] codifies this as law. Moses Isserlis [Poland, 17th century] adds that it is also forbidden to ride in a wagon on Shabbat, even if the driver is not Jewish. He says that the same considerations apply – i.e. that a person might cut a branch from a tree and  that animals are also entitled to rest on Shabbat.

If the prohibition of riding in a wagon is specifically related to animals resting, it should be permitted to ride on public transport which is driven by electric or petrol motors. This is providing that the trains are not being operated by Jews and there are not any further Shabbat prohibitions related to this travel.

However, there are several other issues that should be taken into consideration. First, as we saw in my article on Cycling on Shabbat, there is a general prohibition of engaging in ‘Weekday activities’ on Shabbat, known as Uvdin D’Hol. The Hatam Sofer  [Hungary, 18th century] rules that all forms of public transport are forbidden on Shabbat [Responsa: 6:93]. This is because the experience of being in a crowded car being tossed back and forth by the movement of the train is not in the spirit of Shabbat. Rabbi BZ Uziel [Israel, 20th century] rejects this ruling, for if this was the case, the Rema (Moses Isserlis) would have included this amongst his reasons prohibiting riding in a wagon.

However, Rabbi Uziel adds that the prohibition of Uvdin D’Hol would apply if one was going on a long journey, particularly if this journey was in preparation for business the following day. Also, it is forbidden to pay for travel, to carry outside of an Eruv or to travel beyond the Shabbat boundaries (see my article on cycling on Shabbat).

Following this reasoning, it would be permitted to travel on public transport on Shabbat for short trips within a city if the journey does not involve carrying, paying for travel or going outside the city limits. This is on condition that the transport is running anyway, and does not involve Jews desecrating the Sabbath.

 

Rabbi Chaim Weiner

 

Based on B. Z. Uziel, Piskei Uziel 13.

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February 16, 2011

A Weekend Service

Filed under: Shabbat — chaimweiner @ 11:29 pm

Question: Is it permitted to put a car in for servicing, or request any other service or repair, on a Friday afternoon, if it is known that a non-Jewish mechanic or craftsman will do the work on it on Shabbat?

Answer: The commandment to rest on Shabbat is one of the central commandments of the Torah. Not only is it forbidden to work – it is also forbidden to ask someone else, even a non-Jew, to do your work for you. The source of this prohibition is in the Talmud [Shabbat 150a] A person should not say to a Goy – go and hire me workers on Shabbat. This prohibition is called Amira LeGoy (instructing a non-Jew). Maimonides rules [Shabbat 6:1]: It is forbidden to instruct a Goy to do work on Shabbat, even though the Goy is not obligated to observe the Shabbat, even if he gives him the instruction before Shabbat commences, and even if he will only benefit from that labour after Shabbat is over. This is a Rabbinic prohibition, and its intention is to prevent a person from vicariously carrying out their normal work on Shabbat.

All of this applies to circumstances where one has specifically asked for the work to be carried out on Shabbat. But if one did not specify when the work is to be carried out, it is permitted to hand over the work on a Friday. This is the case even if the craftsman chose to carry out the work on Shabbat, for it was his own choice to work on Shabbat  and a non-Jew is under no obligation to observe the Sabbath.

The Shulchan Aruch [OH 252:2,4] states: It is permitted to give his clothes to the laundry before Shabbat, or skins to a non-Jewish tanner if he set a fixed fee in advance and he did not specifically ask that the work be done on Shabbat.  It is even permitted to wear the clothes on Shabbat itself, for anyone who works for a fixed fee chooses himself when to do the work. Moses Isserlis notes that one should not wear the clothes on that same Shabbat. In the case of a car repair all agree that it is permitted, for the mechanic could have chosen to repair the car on Friday afternoon or Saturday night or Sunday – and therefore it makes no difference to us if the mechanic chose to do the work on Shabbat.

The situation is more complicated if there is not sufficient time to do the work unless it is done on Shabbat. The Magen Avraham [OH 307:3] writes that if there was a Saturday market, it is forbidden to give a non-Jew money before Shabbat and ask him to buy things in the market. Since the market is only open on Shabbat, this is as if he had been instructed to make the purchases on Shabbat. Even if he had not specifically been asked to do the work on Shabbat, the non-Jew has no choice but to do it then, and it counts as if he had been asked to do so. However, Joseph Karo in the Shulchan Aruch does not adopt this ruling. He maintains that as long as there was not a specific instruction to do the work on Shabbat, any work carried out by non-Jews is permitted.

In this case the custom of Ashkenazi Jews is to follow the Magen Avraham and therefore only give work to a non-Jew before Shabbat if there is sufficient time for it to be done without working on Shabbat. Sephardi Jews follow the rulings of Joseph Karo, and therefore permit any work to be given to a non-Jew before Shabbat, as long as there was not a specific request to do the work on Shabbat itself.

Rabbi Chaim Weiner

Based on R. Ovadia Yossef, Yachve Da’at,  3, 17.

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Question: Is it permitted to put a car in for servicing, or request any other service or repair, on a Friday afternoon, if it is known that a non-Jewish mechanic or craftsman will do the work on it on Shabbat?

 

Answer: The commandment to rest on Shabbat is one of the central commandments of the Torah. Not only is it forbidden to work – it is also forbidden to ask someone else, even a non-Jew, to do your work for you. The source of this prohibition is in the Talmud [Shabbat 150a] A person should not say to a Goy – go and hire me workers on Shabbat. This prohibition is called Amira LeGoy (instructing a non-Jew). Maimonides rules [Shabbat 6:1]: It is forbidden to instruct a Goy to do work on Shabbat, even though the Goy is not obligated to observe the Shabbat, even if he gives him the instruction before Shabbat commences, and even if he will only benefit from that labour after Shabbat is over. This is a Rabbinic prohibition, and its intention is to prevent a person from vicariously carrying out their normal work on Shabbat.

 

All of this applies to circumstances where one has specifically asked for the work to be carried out on Shabbat. But if one did not specify when the work is to be carried out, it is permitted to hand over the work on a Friday. This is the case even if the craftsman chose to carry out the work on Shabbat, for it was his own choice to work on Shabbat  and a non-Jew is under no obligation to observe the Sabbath.

 

The Shulchan Aruch [OH 252:2,4] states: It is permitted to give his clothes to the laundry before Shabbat, or skins to a non-Jewish tanner if he set a fixed fee in advance and he did not specifically ask that the work be done on Shabbat.  It is even permitted to wear the clothes on Shabbat itself, for anyone who works for a fixed fee chooses himself when to do the work. Moses Isserlis notes that one should not wear the clothes on that same Shabbat. In the case of a car repair all agree that it is permitted, for the mechanic could have chosen to repair the car on Friday afternoon or Saturday night or Sunday – and therefore it makes no difference to us if the mechanic chose to do the work on Shabbat.

 

The situation is more complicated if there is not sufficient time to do the work unless it is done on Shabbat. The Magen Avraham [OH 307:3] writes that if there was a Saturday market, it is forbidden to give a non-Jew money before Shabbat and ask him to buy things in the market. Since the market is only open on Shabbat, this is as if he had been instructed to make the purchases on Shabbat. Even if he had not specifically been asked to do the work on Shabbat, the non-Jew has no choice but to do it then, and it counts as if he had been asked to do so. However, Joseph Karo in the Shulchan Aruch does not adopt this ruling. He maintains that as long as there was not a specific instruction to do the work on Shabbat, any work carried out by non-Jews is permitted.

 

Question: Is it permitted to put a car in for servicing, or request any other service or repair, on a Friday afternoon, if it is known that a non-Jewish mechanic or craftsman will do the work on it on Shabbat?

Answer: The commandment to rest on Shabbat is one of the central commandments of the Torah. Not only is it forbidden to work – it is also forbidden to ask someone else, even a non-Jew, to do your work for you. The source of this prohibition is in the Talmud [Shabbat 150a] A person should not say to a Goy – go and hire me workers on Shabbat. This prohibition is called Amira LeGoy (instructing a non-Jew). Maimonides rules [Shabbat 6:1]: It is forbidden to instruct a Goy to do work on Shabbat, even though the Goy is not obligated to observe the Shabbat, even if he gives him the instruction before Shabbat commences, and even if he will only benefit from that labour after Shabbat is over. This is a Rabbinic prohibition, and its intention is to prevent a person from vicariously carrying out their normal work on Shabbat.

All of this applies to circumstances where one has specifically asked for the work to be carried out on Shabbat. But if one did not specify when the work is to be carried out, it is permitted to hand over the work on a Friday. This is the case even if the craftsman chose to carry out the work on Shabbat, for it was his own choice to work on Shabbat  and a non-Jew is under no obligation to observe the Sabbath.

The Shulchan Aruch [OH 252:2,4] states: It is permitted to give his clothes to the laundry before Shabbat, or skins to a non-Jewish tanner if he set a fixed fee in advance and he did not specifically ask that the work be done on Shabbat.  It is even permitted to wear the clothes on Shabbat itself, for anyone who works for a fixed fee chooses himself when to do the work. Moses Isserlis notes that one should not wear the clothes on that same Shabbat. In the case of a car repair all agree that it is permitted, for the mechanic could have chosen to repair the car on Friday afternoon or Saturday night or Sunday – and therefore it makes no difference to us if the mechanic chose to do the work on Shabbat.

The situation is more complicated if there is not sufficient time to do the work unless it is done on Shabbat. The Magen Avraham [OH 307:3] writes that if there was a Saturday market, it is forbidden to give a non-Jew money before Shabbat and ask him to buy things in the market. Since the market is only open on Shabbat, this is as if he had been instructed to make the purchases on Shabbat. Even if he had not specifically been asked to do the work on Shabbat, the non-Jew has no choice but to do it then, and it counts as if he had been asked to do so. However, Joseph Karo in the Shulchan Aruch does not adopt this ruling. He maintains that as long as there was not a specific instruction to do the work on Shabbat, any work carried out by non-Jews is permitted.

In this case the custom of Ashkenazi Jews is to follow the Magen Avraham and therefore only give work to a non-Jew before Shabbat if there is sufficient time for it to be done without working on Shabbat. Sephardi Jews follow the rulings of Joseph Karo, and therefore permit any work to be given to a non-Jew before Shabbat, as long as there was not a specific request to do the work on Shabbat itself.

Rabbi Chaim Weiner

In this case the custom of Ashkenazi Jews is to follow the Magen Avraham and therefore only give work to a non-Jew before Shabbat if there is sufficient time for it to be done without working on Shabbat. Sephardi Jews follow the rulings of Joseph Karo, and therefore permit any work to be given to a non-Jew before Shabbat, as long as there was not a specific request to do the work on Shabbat itself.

 

Rabbi Chaim Weiner

February 2, 2011

To Include Or Exclude?

Filed under: Life Cycle — chaimweiner @ 4:01 pm

Question: Can a child who has not been circumcised have a Bar Mitzvah?

Answer: There is no doubt that, according to Jewish law, status is automatically conferred from mother to child, and that a child is considered Jewish solely by virtue of his or her birth. A Brit does not make a child Jewish, and the lack of Brit Milah has no impact on a child’s status. Not fulfilling the Mitzvah of Brit is no different from not keeping kosher or not observing Shabbat. There is no inherent Halachic reason why an uncircumcised person should not be called to the Torah or be allowed a Bar Mitzvah or a Jewish wedding or any other Jewish activity. He is the same as anyone else who fails to keep aspects of Jewish law and who is not excluded from being called to the Torah.

However, based on their understanding of the circumstances, Rabbis do have the authority to introduce bans based on the Halachic concept of Lemigdar Milta – literally, ‘to erect a fence around the matter’. The Talmud [BT, Yevamot 90b] looks at the story of the prophet Elijah, who built an altar and offered sacrifices on Mount Carmel. This is strictly forbidden in Torah law, but the Talmud concludes that Elijah was allowed to do this in order to prevent the worshipping of idols in the community. This is proof that it is permitted to introduce practices to maintain and strengthen core principles of the Torah.

Following this principle a community may decide to regulate its practice – for example by limiting who can be called to the Torah or have access to other religious services, in order to defend the religious standards of the community. Historically, there have been many communities that have prevented uncircumcised men from reading from the Torah or getting married.  This was the practice of many Orthodox communities in Germany in the 19th century following the guidance of S. R. Hirsch and E. Hildisheimer. [See Rashan 67]

Although the Brit is a Mitzvah like all others, historically it has had a particular significance. From Hellenistic times there have been attempts to ban circumcision and Jews have given their lives to preserve their right to maintain the practice. Communities have understood that the neglect of  this Mitzvah has more serious implications for Jewish identity than the neglect of other Mitzvot. Consequently, the Brit is one of the most widely observed of Jewish practices.

Erecting a communal fence only makes sense if it is likely to achieve its purpose. Rabbis and community leaders need to judge whether introducing such a ban is worthwhile. To be effective, synagogues need to work together so that they do not undermine each other.

In an open society, where people have a choice of which community (if any) they choose to join, it is unlikely that coercive tactics will lead to an increase in observance. In most cases, communal bans only push people away from the Jewish community. Therefore, today most communities follow the basic letter of the law – and allow Bar Mitzvahs and weddings to all.

Rabbi Chaim Weiner

Based on R. DZ Hoffman, Melamed Leho’il, YD (Section 2) 79

December 8, 2010

Marriage by Default

Filed under: Marriage and Divorce — chaimweiner @ 2:30 pm

Question: A couple were married in a civil ceremony without a religious wedding. Do they require a GET if they divorce?

Answer: The Mishna [Kiddushin 1:1] states that A woman is acquired in marriage in three ways … by money, by deed, or by intercourse. There are three different ways that a marriage can be contracted in Jewish law. The traditional Jewish wedding has all three of these elements – a ring (money), a Ketuba (contract) and Yichud (time the couple is alone together). Any one of the three is enough to create a Jewish marriage. Therefore, whether there was a Jewish wedding or not, if a couple lives together with the intention of living as man and wife, this is a binding marriage in Jewish law and a GET is required.

This highlights a basic difference between the concept of marriage in Jewish law and civil law. In civil law, marriage is considered an act of the State. Therefore, for a marriage to be valid it needs to be registered with the authorities and it can be dissolved by a court of law. In Jewish law, marriage is a private agreement between two individuals. Therefore it can be contracted by mutual agreement, and can only be dissolved with the consent of both parties.

The complicated part is determining the intention of the couple. While it is likely that a couple choosing a civil marriage wish to be considered man and wife, it is also possible that the fact that they specifically chose not to have a religious wedding indicates that they did not intend to be married under Jewish law. Different halachic authorities have taken different approaches to this. R. Abraham Shag [19th century, Hungary] [Ohel Abvraham, 103] writes that we rely on a Talmudic principle that we always assume that a person had proper intentions when cohabiting. Therefore, lacking any other information, we assume that there was a valid marriage and a GET is required. On the other hand, R. Shlomo Schik [19th century, Hungary]  (Maharam Schik, EH 96) writes that even if in theory such a marriage may be valid, granting validity to such a marriage would undermine the institution of marriage in Jewish law. He therefore rules that such a marriage is automatically void and a GET is not required.

Therefore, there is a doubt as to whether or not a GET is required.  We apply the principle that ‘when there is a doubt about a Torah Law we follow the strict position’. Therefore a GET is required. However, since this was a case of doubt, after the fact – if the couple did not have a GET and subsequently remarried, the children of the second union would not be considered illegitimate and in this case no GET would subsequently be required.

Rabbi Chaim Weiner

Based on R. David Hoffmann Shut Melamed Lehoil. EH 20.

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November 29, 2010

The Extra Day

Filed under: Festivals — chaimweiner @ 3:58 pm

Question: Does a tourist from abroad who visits Israel during a festival observe the second day of the festival?

Answer: Jewish festivals are celebrated for one day in Israel and two days in the Diaspora. This goes back to the time when the beginning of each Jewish month was determined by the appearance of the new moon and its consecration by the Sanhedrin in Jerusalem. Since it took time to communicate the beginning of the month to the Diaspora, these communities frequently did not know exactly when the festival would start. As the start of the new month could vary by a maximum of one day, Diaspora communities observed the festivals over two days, to make sure that they had it right.

The Jewish calendar was already fixed by the time of the Talmud, and this made adding a second day to the festivals unnecessary. The Talmud asks: [BT Beitza 4b] But now that we are well acquainted with the fixing of the new moon, why do we observe two days? — Because they sent [word] from there [Palestine]: Give heed to the customs of your ancestors; for it might happen that the government might issue a decree and it and the custom will be lost. Thus, we have continued to observe one day for a festival in Israel and two in the Diaspora.

When there is a difference of custom between two communities, and someone travels from one community to the other, the rule is [Mishna Pesachim 4:1]: we lay upon him the restrictions of the place whence he departed and the restrictions of the place whither he has gone. Following this, we would expect both a person who goes from the Diaspora to Israel, or vice versa, to observe the more strict custom. Thus, in any case where a person travels, we would expect the norm to be two days observance.

R. Tzvi Ashkenzi [Germany, Holland; 17th Century] known as the Chacham Tzvi, has a novel approach to the problem. He considered the question of two day festivals as different from other customs, where in principle one may choose whether to observe the custom or not. Celebrating two days for a festival is not just a strict observance if there is no reason to do so; it is actually forbidden because it involves saying the wrong prayers and transgressing the biblical prohibition of not adding new commandments to the Torah. He therefore claims that the second day of the festival is not a local custom and that the rules governing local customs do not apply to it.

In other words, at the time the custom was established, anyone who was in the Diaspora [whether they were residents or tourists] was unsure of the date, and therefore had to observe two days. Anyone in Israel knew the correct date and only observed one day. That was the custom of all Jews. Therefore today, anyone who comes to Israel should only observe one day of the festival, but Israelis travelling abroad should observe two, together with the local Jewish community.

Most Rabbis follow the traditional interpretation that each person carries their local customs with them when they travel. The Chacham Tzvi has a unique position, which is both coherent and compelling.

Rabbi Chaim Weiner

Based on Responsa of the Chacham Tzvi 167

Rabbi Chaim Weiner – Based on Responsa of the Chacham Tzvi 167

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November 18, 2010

A Jewish Mother

Filed under: Life Cycle — chaimweiner @ 12:12 am

Question: It is well known that in Jewish law a child inherits its religious status from its mother. What is the status of a child who was born as the result of an egg donation, where the birth mother was Jewish, but the egg donor was not?

Answer: As medical techniques that enable egg donation are fairly recent, there are no direct precedents to this situation in classical rabbinic sources. There are however two possible sources to guide us in our thinking – one in the Midrash and one in the Halachic sources.

Midrash: The Torah describes Dinah as the ‘daughter of Leah’ [Gen. 30:21]. Following normal usage, we would have expected the Torah to refer to her as the ‘daughter of Jacob’. The Midrash [quoted in Targum Yonatan] explains that a pregnant Leah was carrying a male foetus, but wanted her sister Rachel to give birth to at least 2 of the 12 tribes of Israel. In a miraculous way, the male child in her womb was transferred to Rachel, and a female child was transferred from Rachel to her – and thus she gave birth to Dinah. Although the child was genetically Rachel’s daughter, she is known as the ‘daughter of Leah’ thus indicating that it is the birth mother, rather than the genetic mother that determines a child’s status.

Halacha: It is doubtful that a Midrash should be used to establish novel Halachic principles. The closest situation in the classic legal sources is a woman who converts while pregnant. In this case, the child was conceived to a non-Jewish mother, but was carried for part of the pregnancy by a Jewess. The Talmud [BT Yevamot 78a] states that when a pregnant woman converts, the child does not require an additional immersion after birth. Following this, the Shulchan Aruch [YD 168:6] rules that a child whose mother converts when pregnant, is Jewish. This indicates that it is the birth mother that determines a child’s Jewish status.

However, there is another possible interpretation of these sources. It is possible that in this case the child in the womb is not considered Jewish from birth – but rather the child was converted at the same time as its mother. If this is the case – without conversion the child would not be Jewish, and it was the genetic mother who determined the child’s status! We therefore require further clarification before we can confidently rule on this matter.

There is one further discussion in the Talmud that comes to our aid. In tractate Yevamot [BT 97b], the Talmud asserts that if a mother converts while carrying twins, the babies are siblings. Normally, a convert is considered to be ‘born again’ – and is not considered in Jewish law to be related to his natural siblings. The fact that the twins are considered to be siblings shows us that they are Jewish from birth and not by conversion. Thus – it is the birth mother who determines status in Jewish law.

Modern medicine raises many challenges to traditional legal systems. Although the roots of Jewish law are many centuries old – the principles transcend time and enable us to meet the challenges of a new age.

Rabbi Chaim Weiner

Based on: Artificial Insemination, Egg donation and Adoption, Eliot Dorff CJLS 1994

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November 4, 2010

The Long Wait

Filed under: Kashrut — chaimweiner @ 11:24 pm

Question: How long should one wait between eating meat and milk?

Answer: The prohibition against mixing meat and milk is the strictest law of all the rules of Kashrut. On three different occasions the Torah commands: You shall not boil a kid in its mother’s milk. [Exod. 23:19, Exod 34:26, Deut. 14:21]. From here the Rabbis learned that there are three different prohibitions concerning the mixing of meat and milk – namely, cooking, consuming and profiting from the resulting mixture.

The Talmud [BT Hullin 105a] quotes the opinion of Rav Hisda that one who consumes meat may not eat dairy products but one who eats dairy products is permitted to eat meat. From here we learn that the requirement of separating meat and milk extends to waiting between eating meat and milk meals. Rashi [ad loc] explains that the reason for this is that meat has a strong taste that lingers in the mouth after it is eaten. Maimonides [MT Forbidden Foods 9:28] says the reason is that bits of meat remain stuck between ones teeth, and we must wait until these bits have been digested.

How long do we wait? The Talmud records the statement of Mar Ukva, who called himself “vinegar the son of wine,” because his father waited until 24 hours had passed before consuming dairy products after meat, yet he himself only waited until the next meal. The implication is that his father was particularly pious, whereas he followed the Halachic norm.

There are several ways to interpret the term ‘until the next meal’. Maimonides [Forbidden Foods 9:28] says that one waits the normal time between meals, which is six hours. At the time of the Talmud people generally ate two meals each day – one mid-morning (say 10 am) and one in the late afternoon (say 4 pm). The requirement to wait six hours is also recorded in the Shulchan Aruch [YD 89:1]. This is the custom of all Sefardi Jews as well as the majority of Eastern European communities.

On the other hand, the Tosephot [Hullin 105a L’Seudata] say that one simply waits until the end of the meal. It is enough to complete the meal by reciting the Grace after Meals and then one is allowed to consume milk. Following this opinion, the custom of Dutch Jews is to wait only one hour.

In many Central European communities the custom was to wait three hours. This isn’t rooted in either of the above opinions. There are those who say that in northern Europe the day is very short in winter and therefore people ate their meals at closer intervals. On the shortest winter days there would have been only a three hour gap between meals, and this became the standard waiting time in these countries. This also explains why some communities, presumably further south, waited 4 hours between meat and milk.

There is not a clear ruling on this subject. We therefore follow the Halachic principle of nahara nahara u’pashtei –literally – each river flows down its own river bed. Each community should follow its own custom, and individuals should follow the custom of their family.

Rabbi Chaim Weiner

 

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