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Pioneers of the Periphery: Olim of the South

By: Rabbi Yaakov Klass

Published: June 13th, 2001

 

 

ANSWER: Last week we explained that though all Jews were given the Torah, not every Jew is able – or responsible – to perform every command due to circumstance. One such example being those ‘Mitzvot Hateluyot Ba’aretz’ – commands unique to those who dwell in Eretz Yisrael, which those living in the Diaspora are exempt from.

We also quoted the mishna in Kiddushin (29a) which exempts women from ‘mitzvot asei she’hazeman garma’ – timely positive precepts. In seeking a source for this ruling the Gemara on the Mishna based this on the mitzva of Tefillin.

Kol Bo explains the Torah’s reason for exempting women from performing these mitzvos as being due to their heavy household responsibilities (including raising the family).

We then set out to determine the status of this mitzva of Sefirat Haomer – counting the omer – is it indeed a timely precept or not.

We then began to quote from the discussion on this matter found in the Sefer ‘Orot Hapesach’ by Harav Shlomo Wahrman, Rosh HaYeshiva of Nassau County. He quotes the Rambam who rules that Sefirat Haomer is a positive precept incumbent [only] upon males. Kesef Mishneh explains this is due to it being a timely precept. Ramban, whom we quoted, rules otherwise and and includes Sefirat Haomer among those mitzvos that are not timely, thus obligating women in their performance. We now continue with this discussion.

* * *

Avnei Nezer on Orach Chayim 384 finds great difficulty with Ramban’s inclusion of Sefirat Haomer in this grouping, since how is it possible to refer to Sefirat Haomer as a non-timely precept as it is only observed between Pesach and Shavuot’

Rav Wahrman postulates as follows. Perhaps the words of the Ramban including Sefirat Haomer as an non-timely precept [and thus women are obligated in this mitzvah] is really due to a different reason. It is well known that there is a dispute regarding Sefirat Haomer in our times [bereft of the Beit Hamikdash, our Holy Temple] as to whether this is considered a Biblical command. The Ramban, as we quoted, rules that even today it is a mitzvah of Biblical nature – and so rules the Chinuch, R’ Eliezer ben Yoel Halevi, R’ Amram Gaon, Ritz Gaos, as well as the Be’er Halachah and the Orach Chayyim 489, who quotes as well the names of many Rishonim.

However, on the other hand the Tur, Mechaber and many other poskim (see Be’ur Halachah ad loc.) rule that in our times this counting is only Rabbinical [however it was established in the style of a Biblical mitzvah, thus we must wait until 'Tzeit HaKochavim,' the minimum three stars required to begin to count] and was instituted as a remembrance for the Temple.

If we rule that counting the omer today is Rabbinical, continues Rav Wahrman, then indeed women should be obligated. This is according to Bircei Yosef, Orach Chayyim 291:8 who quotes Orchot Chayyim and Rabbeinu Tam as saying that regarding Rabbinical commands, men and women are equally obligated [and thus there are no exemption]. We find this rule as well in the Sefer Hamanhig, who explains that for this reason women are obligated to partake of the three meals on the Sabbath [which one may reason as being a timely command].

The only difficulty with this solution to our problem is Tosafot S.V. ‘Mi shelo Ra’ah Meorot, etc.’ (Megillah 24a), where it is stated that women are absolved from performing ‘Mitzvot Asei Shehazeman Garma,? positive timely precepts, even when they are only of Rabbinical nature, because we find as relates to Chanukah candles, four cups [of wine at the Seder on Pesach], and the reading of the Megillah [Esther on Purim], which are only Rabbinical and yet they [women] are obligated in these mitzvot [for a different reason] because they too were beneficiaries of each of those miracles.

Even as such, while we might venture a solution notwithstanding this difficulty, from Ramban’s words we see clearly that he refers to Sefirat Haomer as ‘Mitzvot Asei She’Ein Hazeman Garma’ – a non-timely precept. We thus remain with Anvei Nezer’s question as to how can Sefirat Haomer, which takes place in a specific time each year [between Pesach and Shavuot], be included among those mitzvot that are indeed non-timely.

In order to understand those Rishonim who posit that women are obligated in all Rabbinical precepts, we must note that Rambam (in Sefer Hamitzvot, shoresh 1) and the Ba’al Halachot Gedolot both rule that these precepts too are of Biblical origin via the Pasuk in Parashat Shoftim (Devarim 17:11) ‘…Lo Tasur Min Hadavar Asher Yagidu Lecha’ – you shall not turn aside from that matter that they [the sages] shall tell you.’ We must question, however, the aim of the mitzvah – whether it is, in regard to Chanukah candles, for example, the lighting itself, or that we have fulfilled the condition of listening to the sages.

Thus if the purpose is listening to the sages, it would seem that the aim of the mitzvah is not the actual individual mitzvah but only its performance in the context of ‘listening to the sages.’ Thus regarding a Rabbinical mitzvah, even though it is timely, its purpose ‘to listen to the sages’ would make it non-timely and women as well as men would be obligated in its performance.

However, due to various questions in his more detailed discussion, Rav Wahrman suggests yet another approach in explaining the Ramban’s reasoning. In certain instances, the performance of a mitzvah would be possible at all times, were it not for a statement in the Torah such as regarding tefillin in Parashat Bo (Shemot 13:10), ‘Veshamarta et Hachukah Hazot L’Moadah Miyamim Yamima,’ you shall keep this law in its times, from time to time [Rashi ad loc 'from year to year,' but lit. 'from days to days']. In the Gemara Eruvin 96a we find that from the first word ‘Yamim,’ days, we exclude nights, and so rules Rabeinu Tam, Tosefet S.V. ‘Ve’shamarta et Hachukah,’ and Rambam Hilchot Tefillin 4:10.

Thus we might possibly argue that only in such a case where we have a specific exclusion do we refer to a precept as timely, but where its observance is in a certain time frame only due to circumstance, i.e. that the wheat must have ripened and that time happens to occur on the 16th of Nissan, but if that ripening would occur at another time perhaps the obligation to count would be at that different time (as well), thus this could be a possible explanation for Ramban positing that this is a non-timely precept.

Regarding the actual halachah as pertains to women’s obligation in Sefirat Haomer, Rav Wahrman quotes Magen Avraham, Orach Chayyim 489, who states that women are exempted from Sefirat Haomer because it is a timely precept, however ‘they have already accepted upon themselves [this mitzvah] as obligatory.’

Sha’ar Hatziyun quotes the Pri Chodosh, who states that women are indeed exempt, and he makes no mention of them having accepted upon themselves its obvservance. Minchat Chinuch Mitzvah 206 further questions this reasoning of the Magen Avraham, for we do not see that in observance of any mitzvah where one accepted upon himself the mitzvah should become obligatory [as if actually obligated].

The Mishnah Berurah (ad loc) quotes the sefer Shulchan Shlomo that at the very least women should not recite the blessing because they possibly will either forget one day [*and thus not complete the Mitzvah properly for the remainder of the days'], and as a general rule women do not know the meaning of the words.

Rav Wahrman finds difficulties with this last statement as many women in today’s generation are quite learned and do understand Hebrew well [and possibly their scholarship will prevent them from forgetting to count on any given night as well]. He then concludes by quoting Aruch Hashulchan ad loc, ‘And the women are exempted [from Sefirat Haomer] because it is a timely precept, but nevertheless they have accustomed themselves to bless and count as in all timely precepts, such as shofar, sukkah and lulav.’

Harav Zvi Cohen writes in his sefer Halachot U’Minhagim Hashalem, Sefirat Haomer volume chapter 4:18 regarding a woman who indeed is accustomed to recite the blessing of Sefirat Haomer, that she can fulfill the obligation of another woman [but not another man]. He quotes the Gaon R? Chaim Kanievsky who says that this rule applies even though their blessing requirement is not obligatory but of permissible nature. I might have thought, he explains, that one cannot act as a meesenger for another in such a case, but rather, our rule here is that just as one who has already fulfilled his obligation [for kiddush, for example] can fulfill another individual?s requirement, the same must be true here as well.

As to why we see that women do indeed recite a blessing on certain timely mitzvot, we find the following in the responsa Tiferet Tzvi (of Harav Hagaon Nachum Tzvi Kornmehl, zt”l) siman 6: Certain mitzvot that deal with Kedushah al Haguf, holiness on the body, meaning that the body is the object of the mitzvah – such as tefillin, which we wear, or sukkah, which we are required to sit therein, or talit, which we wear – in such cases women do not recite the blessing, but with lulav and shofar, where the mitzvah is itself the object, we find that women do recite the blessing.

Nevertheless, since in this case the mitzvah of counting as well as the blessing are not obligatory, where your wife’s family has a minhag that differs from yours, we already have a rule that a women follows her husband’s minhag (see Igrot Moshe, Yoreh Deah vol. 4:3, who attributes this to Chullin 110b).

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