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July 30, 2015 / 14 Av, 5775
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Q & A: Bal Tash’chit During The Nine Days (Part I)


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QUESTION: May leftover meat from the Sabbath during the Nine Days be used during the week so as not to violate “bal tash’chit” – the prohibition against wastefulness?
Rabbi Yaakov Spivak, Rosh Kollel
Kollel Ayshel Avraham
Monsey, NY
ANSWER: In a conversation I had with Rav Spivak, he suggested that I deal with his question in depth, especially considering its timeliness, for the sake of the many rabbis who are faced with similar questions as well as for our readers’ edification.The accepted custom prevalent among most of Ashkenazic and Sephardic Jewry today is to refrain from eating meat from Rosh Chodesh Av until the morning of the 10th of Av. This is based on the Rema (Orach Chayyim 551:9), who notes that we “hide the slaughter knife” from Rosh Chodesh and on. This has also become the minhag in Eretz Yisrael even for the Sephardim, who usually follow the rulings of the Beit Yosef, according to whom the restrictions apply to the week in which Tisha B’Av falls, as opposed to from Rosh Chodesh and on.The practice of not eating meat and other mourning restrictions regarding the cutting of hair, wearing new garments, washing and donning fresh clothes, and bathing, from which we abstain during these Nine Days, are due to our great national tragedy, the destruction of our Beit
Hamikdash, the Temple in Jerusalem. Rambam (Hilchot Ta’aniyot 5:1) states that these were instituted “in order to awaken in the hearts a path to repentance, that this [observation of mourning] shall be a reminder of our and our forefathers’ evil ways … resulting in the misfortunes that befell them and us [to this very day]. Through reminding ourselves of these matters, we will return, repent, and do good, as the verse (Leviticus 26:40) states, ‘Ve’hitvadu et avonam ve’et avon avotam bema’alam asher ma’alu [b]i, ve’af asher halchu immi be’keri – Then they shall confess their sins and those of their forefathers, for the treachery with which they betrayed Me, and also for having behaved toward Me in a casual manner.'”

So that we will not present ourselves as guiltless, saying it is only our forefathers who sinned in their time, but not us, our Sages clearly stated (Yerushalmi Yoma 1:1), “Any generation in which it [the Temple] is not rebuilt is deemed as if that generation had destroyed it.”

Since the first two Temples were destroyed, the future third and permanent Temple awaits us [in heaven], as we see from various verses in Tehillim, such as (122:3), “Yerushalayim ha’benuya ke’ir shechubrah lah yachdav – Jerusalem that is built as a city that is joined together.”

The Gemara (Ta’anit 5a) quotes R. Yochanan, who explains as follows: “The Holy One, Blessed be He, said, ‘I will not enter (lit. come to rest My presence in) the heavenly Jerusalem until I can enter the earthly Jerusalem.'” The Gemara asks, “And where do we find a heavenly Jerusalem? Indeed we do, as the verse (supra) states, ‘Jerusalem that is built as a city that is joined together.'”

As to how this city and Temple will appear [come down to us], we have yet another verse in Tehillim (147:2), “Boneh Yerushalayim Hashem, nidchei Yisrael yechaness – The builder of Jerusalem is G-d, He will gather the outcast of Israel.” Metzudat David (ad loc.) explains that Hashem will, in the future, build Jerusalem and He will gather in all the exiles from the corners of the earth.

However, from yet another statement of R. Yochanan (Bava Batra 75b) we see that we must merit to be ingathered to Jerusalem at the time of the ultimate redemption. Rabbah said in the name of R. Yochanan, “[The] Jerusalem of the world to come will not be like [the] Jerusalem of the present world. To the Jerusalem of this world – he who wishes to go up may do so. However, [to the] Jerusalem of the time to come – only those who are invited [merit it] will go up.”

We thus see the greatness of Jerusalem and our Holy Temple. When the Sages instituted the mourning period for this loss and the relevant observances introduced over time, it became greatly significant in our approach to this national catastrophe. Thus we must have a clear reason to diminish from them even one iota.

Bal tash’chit (lit. “not to waste”) is a prohibition which Rambam lists as Mitzvat lo ta’aseh 57 of the prohibitory commands in Sefer Hamitzvot, based on the verse (Deuteronomy 20:19), “Ki tatzur el ir yamim rabbim lehilachem aleha letofsah, lo tash’chit et etzah lindo’ach alav garzen, ki mimenu tochel ve’oto lo tichrot, ki ha’adam etz hasadeh lavo mipanecha bamatzor – When you besiege a city for many days in making war against it in order to capture it, you shall not destroy its trees by wielding an ax against them; for you may eat from it, and you shall not cut it down; for is the tree of the field a man that you shall besiege it?”

Rambam explains that “all types of [deliberate] loss are included in this prohibitory command, such as one who burns a garment for no reason, or one who destroys a vessel. By doing this they also violate the command of lo tash’chit and are liable for lashes [malkot]. And [since every punishment requires a warning] the warning is here [in this same verse], ‘for you may eat from it, and you shall not cut it down…'”

The Gemara (Bava Kamma 91b, Perek HaChovel), explains that this applies not only during a siege but to any cause of deliberate loss. Regarding trees, only a tree that bears fruit may not be cut down, but for an ilan serak, a tree that bears no fruit, the second verse is applicable
(Deuteronomy 20:20): “Rak etz asher teda ki lo etz ma’achal hu, oto tash’chit… – Except a tree that you know not to be a tree for food (i.e., a fruit-bearing tree) may you cut and destroy…”

The verse addresses a case of siege, and even then we are only permitted to destroy the tree when there is a clear need. The Gemara notes that in a case of potential monetary loss, such as where the value of the lumber is greater than that of the fruit (91b – Rashi s.v. ve’im haya me’uleh bedamim), a fruit-bearing tree may be cut down as well.

Thus our question should be further strengthened: If one cooked for the Sabbath without being able to prepare an exact amount [Rema, Orach Chayyim 551:10, is instructive in this regard – one must cook an exact amount and not be left with any extra, alluding to bal tash’chit] and some was left over, should we not permit its consumption, due to the gravity of this lo ta’aseh commandment, overriding the importance that our Sages attached to our mourning observance for this tragic period?

Lest one think that bal tash’chit, as set forth by the Torah in its literal sense of cutting down a fruit-bearing tree, bears little relevance to our modern day and age, this problem is addressed in a recent responsum.

The Gaon R. Moshe Sternbuch (Teshuvot VeHanhagot Vol. I, Choshen Mishpat 831) discusses a case where a person wishes to remove from his garden a fruit-bearing tree because he needs that space. The reasons can vary, such as sitting in the garden without fruit falling upon him, or the fruit attracting unwanted creatures or insects. Such cases would allow us to be lenient, as each involves a disturbance to the property’s fundamental purpose, which is the standard we use.

R. Sternbuch notes that if one wishes to clear a path so that one may stroll there, this does not justify cutting down a fruit-bearing tree. He reminds us of R. Chanina’s statement in the Gemara (Bava Kamma 91b), “My son Shib’hat did not die [for any other reason] except for having cut down a fig tree before its time [while it was still bearing fruit].” The Gemara does note Rabina’s statement, “If its value is greater than the fruit it (the tree) produces, we are permitted [to cut it down].”

Yet the element of danger (sakana) should be factored into such a decision, and we have a rule (Chullin 10a), “Chamira sakanta me’isura – we are stricter regarding a danger [to one’s well-being] than with a matter that is forbidden by law” in that we take even more precautions.
Thus, R. Sternbuch concludes, such a decision should be undertaken in consultation with several rabbis.

An obvious question is whether this impending sakana only applies to the specific case noted by the Torah (trees), an example of which is the death of R. Chanina’s son, or whether there is a sakana in any kind of waste. We thus must be very careful regarding any type of waste in all matters of everyday life.

(To be continued)

About the Author: Rabbi Yaakov Klass, rav of Congregation K’hal Bnei Matisyahu in Flatbush, Brooklyn, is Torah Editor of The Jewish Press. He can be contacted at yklass@jewishpress.com.


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