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April 20, 2014 / 20 Nisan, 5774
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Posts Tagged ‘Shulchan Aruch’

The Uniqueness Of Modern Orthodoxy (Part I)

Friday, October 12th, 2012

Question: What is unique about Modern Orthodoxy?

Answer: In the Middle Ages, theologians analyzed Judaism to assess its essential nature. Their concern was to locate a component that, if missing, would render Judaism something other than Judaism. A modern example of such an inquiry would be to seek the essential component of a car. A car without air conditioning or a radio is still a car. A vehicle without a motor, however, is not.

What is the essential component of Modern Orthodoxy? Some have suggested chesed. But chesed is not unique to Modern Orthodoxy. Many Jews and non-Jews consider kindness essential to their way of life. Anyone hospitalized in New York City will attest to the wonderful service of Satmar women who provide kosher food to patients free of charge. I still recall one woman who travelled with two different busses for over an hour each way to bring kosher food to my wife.

If not chesed, then, what makes Modern Orthodoxy different than other streams of Orthodoxy?

First, we must narrow down the possibilities. It is well known that we say a berachah upon meeting a great scholar in worldly wisdom. HaRav Yitzchok Hutner, zt”l, however, argued that we don’t say this berachah if the great scholar is a Jew (Pachad Yitzchok, V’Zot Chanukah, 9:2 and 9:5). One only says a berachah over a Jew who possesses Torah knowledge, not a Jew who wins the Nobel Prize in chemistry, for example. Conversely, one does not make a berachah over a non-Jew who possesses tremendous Torah knowledge.

Rav Hutner argued that this is implicit in the wording of the Shulchan Aruch, which list two separate halachos: that we say one berachah over a non-Jewish scholar with worldly wisdom and another berachah over a Jewish scholar. The two berachos are “Blessed are You…who has given of His wisdom to those who fear Him” and “Blessed are You…who has given of His wisdom to human beings.” The two berachos are separate and should not be confused. One only makes a berachah over a Jew with Torah knowledge and only over a non-Jew with worldly knowledge.

Why? In regards to berachot, there is a guiding principle of ikar and tafel (essential and secondary). For example, one only recites a blessing over spices if the spices were originally designated to provide fragrance – their main purpose. If the spices, however, were designated for another purpose, one would not recite a berachah over them even if one enjoyed their fragrance.

So too, contends Rav Hutner, in regards to the blessings over scholars. The prime purpose of a Jew is to learn Torah. This is the goal of his existence. Everything else, including secular scholarship or scientific knowledge, is of secondary value to the Jewish soul. It may be important. It may even be vital to life, but it is still secondary to Torah. As such, one only recites a berachah over a Jew who excels in his primary role – Torah. So too with non-Jews. One does not say a berachah over him if he is an expert in Torah because Torah is not his primary role in life.

Getting back to Modern Orthodoxy: Since Torah is the distinctive character of a Jew, the uniqueness of Modern Orthodoxy must lie in Torah. We then must reformulate our original question. What makes the Torah of Modern Orthodoxy uniquely different from the Torah of the yeshiva or chassidic world?

(To be continued)

Na’anuim: Moving Together As One People

Friday, October 5th, 2012

We are all familiar with the famous midrash (Vayikra Rabbah 30, 12) that compares the four species we take on the holiday of Sukkos to the four different types of Jews: the esrog, which has both smell and taste, corresponds to those who learn Torah and perform good deeds; the lulav, which has taste but no smell, corresponds to those who learn Torah but do not perform good deeds; the hadasim, which have a pleasant smell but no taste, correspond to those who perform good deeds but do not learn Torah; and finally, the aravos, which have neither smell nor taste, correspond to those who have neither Torah nor good deeds.

The midrash notes that Hashem declared that all the species should be tied together into one bundle (“agudah achas”) so that each should effect atonement for the other (see Shulchan Aruch, Orach Chaim 651:1). The message is clear: in order for our prayers to be fully accepted, we must unite with all Jews, and not exclude anyone, even those lacking in Torah and mitzvos.

The same message resonates with the Yom Kippur service. We cannot even begin the service until such time as we have been granted permission – in the convocation of the beis din above and the beis din below – to pray together with the “avaryanim” – with those who are clearly labeled as transgressors. Only when the entirety of the people is included in our service, can be we confident that our prayers will yield a favorable response from Above. It is for this reason we pray on Yom Kippur, “ve’yausu khulam agudah achas” – that we be combined into one “eged” (bunch) like the four minim of the lulav, “la’asos retzoncha be’levav shalem” – to do your will with a “complete heart.” The reference to a “complete heart” can be understood as a hearkening to when we all stood as one united people at Har Sinaikeish echad be’lev echad” – “as one organic being, with a united heart” (Rashi, Shmos 19:2).

In this vein, Rabbi Eliyahu Lopian (Lev Eliyahu 4:339) provides a similar perspective to explain an apparent paradox. On the one hand, the month of Elul is a time of supreme trepidation, as indicated by the verse in Amos (3:6) – “if a shofar is blown in the city, how can the inhabitants not tremble?” And yet, the Tur points out (Orach Chaim, 581) that unlike most prisoners who are brought into court for their day of judgment in a state of disheveled despair, we are to wash, adorn and regally dress ourselves in preparation for Rosh Hashanah because we are so cheerfully confident of a positive verdict. Rabbi Lopian explains that both perspectives are indeed correct. From the standpoint of the individual, Rosh Hashanah is a terrifying day of judgment, as indicated in the words recited in the tear-inducing prayer “Unesaneh Tokef” – “a trembling and fright will seize them [the angels].” However, our confidence in approaching Rosh Hashanah is premised upon our knowledge that in our capacity as members of the entirety of the Jewish people, we will not be turned away.

But how do we truly internalize this powerful message? Outside of mouthing the words on Yom Kippur and combining the four minim of the lulav together on Sukkos, are we in fact uniting with all Jews, including them in our thoughts, prayers and deeds? Do we view ourselves as part of a larger Klal Yisroel that transcends our immediate communities, schools and synagogues?

In recent decades, we have witnessed a resurgence of the Orthodox Jewish community. The growth of families and communities is a wonderful sign of communal success. We should all express our tremendous gratitude for the gifts that have been bestowed upon us, rebuilding from the ashes of the Holocaust, and creating new life for the multitudes of Jewish families that suffered devastation and destruction. I remember feeling the powerful sensation at the recent Siyum HaShas of capturing just a small glimpse – an “echad b’shishim” (one-sixtieth measure), as one of the speakers essentially put it – of the grandeur and splendor of what we lost. The presence of Rav Yisroel Meir Lau, a Holocaust survivor, as a keynote speaker at the event, only underscored this overwhelming emotion.

Q & A: Selichot Restrictions (Part III)

Thursday, September 27th, 2012

Question: The Kitzur Shulchan Aruch states that an individual praying selichot without a minyan is not allowed to recite the Thirteen Midot or the Aramaic prayers. What is the rationale behind this halacha?

Moshe Jakobowitz
Brooklyn, NY

Answer: The Beit Yosef on the Tur (Orach Chayim 565) explains that the Shelosh Esreh Midot represent a communal prayer and thus a davar she’b’kedushah. A mishnah in Tractate Megillah (23b) enumerates the situations that incorporate a davar she’b’kedusha and require a minyan. Among them is communal prayer.

Last week we discussed whether it is permitted to pray for sick people in Aramaic, since, according to R. Yochanan (Shabbos 12b), ministering angels do not understand Aramaic. R. Yochanan’s statement is at odds with the opinion that these angels know the innermost thoughts of man (see Tosafot ad loc.). We concluded that praying for sick people is different since, as the Talmud (loc. cit.) states, the Divine Presence comes to help sick people in their suffering. Thus, there is no need for the aid of angels.

We asked, though, why the intercession of angels is ever necessary since we address our prayers directly to G-d. We also pointed out that there is a difference between individual prayer (tefillat yachid) and congregational prayer (tefillat hatzibur); we are assured that the latter one will be accepted.

* * * * *

The Shiltei HaGibborim to the Rif (Berachot, beginning of Ch. 2, “Ha’ya korei baTorah”) says a person may pray in a language other than Hebrew if he doesn’t know Hebrew as he needs to be able to pray in a language he knows (even if it is Aramaic). This is in accordance with Tractate Berachot 3a: “Whenever Israelites convene in synagogues and houses of study and respond, ‘Yehe shmei [shemo according to the Maharsha] hagadol mevorach – May His great name be blessed,’ the Almighty nods and says, ‘Happy is the king who is thus praised in his house.’ ” Tosafot remark that this Hebrew response is the equivalent of the Aramaic sentence in Kaddish: “Yehei shemei rabbah mevorach.”

Tosafot dispute those who maintain that this beautiful prayer of praise was instituted in Aramaic so that the angels would not fathom it and thus not cast a jealous eye upon us. Tosafot note that there are many other beautiful liturgical passages in Hebrew. Rather, Tosafot explain, Kaddish (in the Talmudic period) used to be recited at the conclusion of lectures given for the populace at large, amongst whom were many uneducated people who did not understand Hebrew. Kaddish was therefore composed in Aramaic, the language spoken by everybody.

Why, then, are individuals not generally supposed to pray in Aramaic? The Tur (Shulchan Aruch, O.C. 101) quotes his father’s statement that an individual may pray in any language – except Aramaic. The Beit Yosef (ad loc.) explains that angels have an aversion to Aramaic, which is not the case regarding any other language. The Chochmat Shlomo, commenting on the Mechaber’s ruling in the Shulchan Aruch that prayers can be recited in any language, notes that the angel of each of the 70 nations intercedes for that nation in its own language, and therefore an individual should not pray in a language that his nation’s angel does not speak. Michael, the angel of Israel, uses Hebrew, so Israelites should pray only in Hebrew, the Chochmat Shlomo writes.

This statement runs counter to the rulings of the Tur and Mechaber. The Chochmat Shlomo, in fact, goes further and cautions against people who have instituted prayers in any language other than Hebrew. (He is referring to “formally structured communal prayers” recited to fulfill our daily obligations of tefillah, not personal supplications.)

To explain the aversion angels are said to have for the Aramaic language in particular, we turn to the statement of Rabbi Yehuda in the name of Rav in Sanhedrin 38b. He says that the first man, Adam, spoke in Aramaic, for it is written (Psalms 139:17), “Ve’li mah yakru re’echa, Kel – How valued (or weighty) are your thoughts of me, G-d.”

To explain this statement, the Maharsha quotes Rabbi Yochanan’s statement in Bava Batra (75b) that in the time to come, the righteous will be called by the name of G-d, for it is written (Isaiah 43:7), “Every one that is called by My name, whom I have created for My glory – I have created them and fashioned them.” The Maharsha asks: Where in that pasuk are the “righteous” and the “time to come” mentioned? He explains that honor is attained only through the Torah. Indeed, the Gemara (Sanhedrin loc. cit.) continues its comments about Adam, stating that G-d showed him every generation to come and its scholars and sages. When it came to the generation of Rabbi Akiva, Adam rejoiced at his learning but was grieved at his martyr’s death at the hands of the Romans That is when Adam exclaimed, “Ve’li mah yakru re’echa, Kel.”

Maftir Yonah

Thursday, September 20th, 2012

There is a machlokes between the Mechaber and the Rema concerning the berachos recited on the Yom Kippur haftarah by Minchah. The Mechaber says (Shulchan Aruch, Orach Chaim 622:2) that we take the Torah out and read the parshah of arayos and then read Maftir Yonah. He says that we recite the berachos of the haftarah before and after the haftarah. If Yom Kippur falls out on Shabbos, we mention Shabbos in the berachos. The Rema argues that we do not recite the berachah of “al haTorah v’al ha’avodah” by Minchah.

The Vilna Gaon explains that this machlokes is based on a fundamental difference of opinion as to the nature of why we read the Torah and haftarah at Minchah on Yom Kippur. The Mechaber holds that the reason why we read the Torah and a haftarah at Minchah on Yom Kippur is because it is part of the service of Yom Kippur. This is similar to the fact that we read from the Torah on Shabbos by Minchah. Therefore the Mechaber rules that the berachah of “al haTorah…” is recited, like it is recited on Shabbos. And if Yom Kippur falls out on Shabbos, we mention Shabbos in the berachah.

The Rema’s view is that the Torah reading at Minchah on Yom Kippur is unrelated to the kedushah of Yom Kippur; rather, we read the Torah and the haftarah because Yom Kippur is a fast day, and on all fast days we read the Torah and haftarah at Minchah. Even though on a general fast day the reading of the Torah is from the parshah of “Vayechal Moshe…” the specific reading may be changed. On a regular fast day we do not recite the berachah of “al haTorah”; therefore the Rema rules that we should not recite that berachah on Yom Kippur.

A halachic ramification should result from this machlokes. Take this scenario, for example: If a man is sick on Yom Kippur and must eat, may he receive an aliyah by Minchah? If the essence of why we read the Torah by Minchah on Yom Kippur results from the kedushah of Yom Kippur, this sick man may receive an aliyah since he has not violated the kedushah of the day. But if the reason why we read the Torah is because Yom Kippur is a fast day and on fast days we read the Torah by Minchah, then he would not be able to receive an aliyah, as he is not currently fasting. As the Shulchan Aruch, Orach Chaim 566:6 rules: one who is not fasting may not receive an aliyah on a fast day.

Rabbi Akiva Eiger, in Teshuvos 24, rules that one who must eat for medical reasons may receive an aliyah at Shacharis on Yom Kippur. This is because the Torah reading at Shacharis definitely stems from the kedushas hayom. However, he says that he is unsure if he may receive one at Minchah, for perhaps that Torah reading results from the fact that it is a fast day.

Based on the Vilna Gaon’s explanation, this matter should depend on the machlokes between the Rema and the Mechaber. According to the Mechaber one should be able to receive an aliyah even if he is not fasting. According to the Rema he should not be able to receive an aliyah.

The difference between whether the Torah reading results from the kedushas hayom or if it results from the fact that it is a fast day is a fundamental difference in the essence of the Torah reading. If it results from the kedushas hayom, it is a regular Torah reading that is essentially public study of Torah. If we read the Torah because it is a fast day, then the purpose of the reading is essentially to rebuke the congregation. The main rebuke is actually found in the haftarah, except that we cannot read a haftarah only without reading from the actual Torah first. This is the understanding behind the opinion in Megillah 22b that says that only one aliyah is required on a fast day, since the main purpose is to reach the rebuke found in the haftarah.

There are two different sources for why we read the parshah of the arayos at Minchah on Yom Kippur. Rashi, in Megillah 31a, says that it is because one who has committed the sins of arayos should do teshuvah. Similarly Tosafos there says that we read that parshah because women dress nicely on Yom Tov and thus we want to remind everyone of the possible aveiros about which they should be cautious.

Daf Yomi

Thursday, September 6th, 2012

A Vicious Cycle
‘Many Different Kinds Were Set Before Him’
(Berachos 41a)

Our Gemara discusses the order of priority in reciting berachos over foods. If a person plans to eat fruit with different berachos, most poskim maintain that he should first make a berachah over the fruit he prefers to eat. For example, if he wishes to eat grapes and a pineapple, and he prefers the pineapple, he should first recite borei pri ha’adamah over the pineapple, and afterward borei pri ha’eitz over the grapes.

Shivas Haminim

This is so despite the fact that grapes are one of the shivas haminim and that the berachah of borei pri ha’eitz is more distinguished than borei pri ha’adamah (see Shulchan Aruch, Orach Chayim 211:1; Mishna Berurah s.k. 9). However, if someone is eating two fruits with the same berachah, he should make a berachah over the shivas haminim item first. For example, if he wishes to eat grapes and a peach, even though he prefers the peach, he should still recite the berachah of borei pri ha’eitz over the grapes first (Shulchan Aruch, ibid.).

Everything’s Just Peachy

Based on the above rulings, the following question arises. What is the halacha if a person wishes to eat a peach, a pineapple, and grapes, and his most favorite food is peach, second favorite is pineapple, and least favorite is grapes? If he wants to make a berachah over the peach first, we should object that the grapes must precede it since they too are borei pri ha’eitz fruits and are one of the shivas haminim. If he wants to make a berachah over the grapes first, we should object that the pineapple must precede it since it has a different berachah than that of grapes and he prefers it to the grapes. If he wants to make a berachah over the pineapple first, we should object that the peach must precede it since he prefers it to the pineapple. Which lead us back to square one.

Advantage Plus

The Steipler Gaon, zt”l, offered the following solution to this problem. He said the person should recite the berachah over the grapes first. The answer to the objection that the pineapple should precede the grapes since the person prefers it is that the berachah over the grapes, borei pri ha’eitz, is also the berachah for his first preference, the peach. The grapes have the advantage of being both one of shivas haminim and possessing the same berachah as the preferred fruit (the peach).

Indeed, the heart of the halacha that one should eat one’s preferred fruit first is that one should say the berachah of the preferred fruit first. Normally, one says the berachah over the preferred fruit directly. In this case, however, where there are considerations at play, one says the berachah of the preferred fruit over a different fruit.

The Steipler stressed that the above solution is a point for consideration and should not necessarily be relied upon in practice (sefer Zichron Chai 2:9; see also VeZos HaBerachah, Birur Halachah 47).

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The Intricacies Of Selichos

Thursday, September 6th, 2012

There is a custom to say Selichos before Rosh Hashanah. Sephardim have the custom to say Selichos during the entire month of Elul, while Ashkenazim follow the custom of the Ramah (Orach Chaim 581:1) to only say Selichos for a minimum of four days prior to Rosh Hashanah – beginning with Motzaei Shabbos. The Ramah quotes from the Kol Bo that certain communities had the custom that the ba’al tefillah should also be the chazzan for the remainder of the day. The Magen Avraham explains that this is because of the general rule that when one begins a mitzvah he should complete it.

The Magen Avraham adds that the chazzan for Selichos should also serve as the chazzan for Ma’ariv. Several Achronim took issue with this ruling, for Ma’ariv is part of the davening of the next day and is not connected to the davening of the day before. The Chasam Sofer, in his commentary to Shulchan Aruch, explains that the Gemara in Berachos 26b says that the Ma’ariv tefillah was instituted in correspondence with the burning of the eivarim (sinews), which were left over from the korban tamid of the evening that the tefillah of Minchah corresponds to. Therefore, even though the tefillah is technically part of the next day’s davening, it is nevertheless connected to the tefillah of Minchah that precedes it.

Many Achronim were bothered by the explanation of the custom that the ba’al tefillah for Selichos should also be the chazzan for the rest of the day because he must complete a mitzvah that he began. They asked the following questions: What connects the rest of the day’s davening to each other and to Selichos? Do we apply this rule to one who davens Shacharis and thereby tell him that he should also be the chazzan for Minchah? Certainly not. The rule is only applicable to parts of one mitzvah; davening Selichos for the amud and davening for the amud the rest of the day are separate mitzvos. Thus this rule should not apply.

The Livush suggests a different understanding for this custom. He writes that in the place where this custom was practiced they also had a custom that the chazzan for Selichos would fast the entire day. Therefore, as it would be too difficult for the general chazzan to daven everyday, they would alternate; the one who was fasting would daven all of the tefillos of that day.

The sefer, Binyan Shlomo, disagrees with the Magen Avraham and offers an alternate explanation for the custom. He suggests that we often find that we offer encouragement for people to do certain services that they might be hesitant to do. For example, the Gemara in Yuma 22a says that the person who did the terumas hadeshen would be granted the honor of arranging the maracha, which was more desirable to do. Similarly people do not regard Selichos as being an honorable tefillah in which to serve as chazzan; therefore we must give them an incentive and grant them the position of chazzan for the remainder of the day. The Binyan Shlomo adds that today, when most people say Selichos on their own and the chazzan must only finish each paragraph, it is no longer too burdensome in people’s eyes – and thus it is unnecessary to continue this custom today.

The sefer, Harirai Kedem, suggest that in order to understand the Magen Avraham we must first understand what the essence of Selichos is. He says that the essence of Selichos is an introduction and an addition to the day’s regular tefillos. That means that if one only davens Selichos and does not daven any other tefillah that day, he has not even fulfilled his obligation to recite Selichos. This is because the Selichos are additions to the regular tefillos.

Based on this we can explain the reasoning of the Magen Avraham. Since Selichos are additional prayers to the davening of the day, they are connected to all of the davening of that day. Therefore, when one serves as chazzan for Selichos (the addition to all of the day’s tefillos) we tell him to finish the mitzvah by also davening the rest of that day’s tefillos. On a day when Selichos are not recited, we do not tell the ba’al tefillah for Shacharis to daven Minchah since they are not connected in any way.

The Life Of A Legendary Posek

Wednesday, July 25th, 2012

The birth of Rabbi Yosef Sholom Elyashiv – who died in Jerusalem last week at the age of 102 – is thought by many to be a miracle.

Despite sixteen years of prayer and longing for a child, the chief rabbi of Homel, Rabbi Avraham Erener, and his wife, Chaya Musha, remained childless. According to one story – often repeated by Rabbi Elyashiv’s children – it was only after an incident when Rebbetzin Erener displayed tremendous compassion by curbing well-deserved anger after a display of cruelty by a distraught neighbor, that Rebbetzin Erener was told by her father, Rabbi Shlomo Elyashiv (author of the classic kabbalistic work Leshem Shevo V’achlamah), that her selfless actions would merit the blessing of a child who was destined to greatness. Rabbi Yosef Sholom Elyashiv was born one year later on April 10, 1910 in Lithuania.

His survival throughout the years faced additional hurdles, as numerous times from childhood on Rabbi Elyashiv was stricken with serious illnesses from which he was not expected to recover. Upon the advice of the Chofetz Chaim, in 1922, Rabbi Avraham Erener took on his wife’s family name, Elyashiv, in order to consolidate the two families and obtain a uniform immigration certificate allowing them to enter the British mandate of Palestine. This move was facilitated by Rabbi Avraham Yitzchak Kook, the Ashkenazic chief rabbi of Israel. Seven years later, Rabbi Kook once again took on an important role in the life of then 19-year-old Rabbi Elyashiv, arranging his marriage to Sheina Chaya Levin, daughter of esteemed Jerusalem Rabbi Aryeh Levin.

When they arrived in Palestine, Rabbi Avraham founded Tiferes Bachurim, a beis medrash in Meah Shearim, where he would deliver a nightly lecture. After his sudden passing, his only son, 32-year-old Rabbi Yosef Sholom Elyashiv succeeded him. Until close to the turn of the century, Rabbi Elyashiv was available every night to individuals seeking answers to various halachic inquiries. Rabbi Elyashiv’s vast Torah knowledge was acquired without ever attending a formal yeshiva. From when he was a small child until his father’s death, the two learned for several hours daily. The pair covered the entire Shas, Rambam, and all of Shulchan Aruch by the time Rabbi Elyashiv was married in 1930. After his marriage, Rabbi Elyashiv began studying at Ohel Sarah, another beis medrash in the neighborhood.

Rabbi Elyashiv fathered five sons and seven daughters, two of whom did not survive to adulthood. A son, Yitzchak, succumbed to an illness at a young age and a daughter, Rivka, died in a Jordanian shelling attack in 1948. Sons Shlomo, Moshe, Binyamin and Avraham Elyashiv are all considered great scholars in their own right and all of Rabbi Elyashiv’s daughters married prominent rabbis. The eldest of Rabbi Elyashiv’s daughters was the renowned and beloved Rebbetzin Batsheva Kanievsky, a”h, wife of Rabbi Chaim Kanievsky. She passed away just months ago.

Rabbi Elyashiv, serving as a judge with the Israeli Chief Rabbinate until 1972, was close with other great Torah leaders, including Rabbi Betzalel Zolty, Rabbi Yaakov Ades, Rabbi Eliezer Goldsmidt and Rabbi Ovadia Yosef. He ultimately earned a position on the Supreme Rabbinical Court. Rabbi Elyashiv was persuaded by Rabbi Elazar Menachem Mann Shach, zt”l, the rosh yeshiva of the famed Ponovitch Yeshiva in Bnei Brak, to take a more active role in Jewish public life in 1989 and was the spiritual leader of the Degel HaTorah Party.

Unlike many of today’s widely respected rabbinical figures, Rabbi Elyashiv was not the head of any congregation, yeshiva or community but was still one of the most widely sought out authorities in our generation and was considered by many to be a gadol hador and the leading posek for Ashkenazic Jewry. Rabbi Elyashiv began his day at 3 a.m. and was known to sleep for not more than three or four hours nightly, spending the remainder of his day deeply immersed in Torah studies, delivering shiurim, answering often complex halachic questions and receiving the many visitors who flocked to see him from all over the world. He was known not only as a man of great learning, but also as a man who appreciated and respected the value and dignity of every person.

Rabbi Elyashiv lived a life of simplicity in his small apartment on Rechov Chanan in Meah Shearim, and his reputation for impeccable integrity and concern for others was beyond compare. As a young couple, Rabbi Elyashiv and his wife moved into that apartment at the request of his parents who wished to be close to their only child. They lived together in that two-bedroom apartment for approximately twenty-five years. That was where all the Elyashiv children were raised and where Rabbi Elyashiv lived until his last day.

Preempting The Death Penalty

Wednesday, July 18th, 2012

In this week’s parshah the Torah writes about a prohibition on killing a murderer prior to his trial. As the pasuk says: “…v’lo yamus harotzeach ad amdo lifnei haeidah lamishpat – … so that the murderer will not die until he stands before the assembly for judgment” (Bamidbar 35:12). The same rule applies to anyone who commits an aveirah that is punishable by death; no one is permitted to kill him prior to his trial in beis din, including the witnesses that warned him and witnessed the aveirah. The Sefer Hachinuch (mitzvah 409) writes that if one kills a transgressor prior to his trial, he is regarded as a murderer.

Anyone who performs any aveirah l’hachis (a transgression to spite Hashem, not because of temptation) is rendered a mummar l’kol haTorah. The Rosh (Moed Katan 3:59) says that one who is warned by two witnesses that the action he is about to perform is prohibited and punishable by death and responds that he will commit the aveirah despite the warning, attains the status of a mummar l’hachis. The reason is this: one performing the aveirah because of temptation would not do so after being warned that his life is on the line. Rather, we can assume that he is acting to spite Hashem.

Reb Chaim Ozer Grodzensky (Achiezer 3:53) writes that he discussed the following question with his wife’s grandfather, Reb Yisroel Salanter, the gaon ohr yisrael: the Gemara (Avodah Zarah 26b) says that one may kill a mummar l’hachis. (This is brought down in several places by the Rambam, including Rotzeach 4:10, and in the Shulchan Aruch, Choshen Mishpat 425:5.) This is known as “moridin v’eino malin – throw him into a pit and do not save him.” The view of both the Rambam and the Shulchan Aruch is that if possible one should publicly kill the mummar with a sword. The Rosh (Teshuvos 32:4) says that one should only kill via a gramma (indirectly), i.e., throw him into a pit and remove the ladder.

Question: How can the Torah say that we cannot kill a murderer or any transgressor until after his trial in beis din, despite the fact that he was warned in front of witnesses? After all, according to the Rosh the transgressor has the status of a mummar l’hachis (since he is not acting out of temptation), thereby permitting anyone to kill him as per the halacha of moridin v’eino malin.

Reb Chaim Ozer suggested two answers, but believed that the question demands more analysis. His first suggestion is that the pasuk is teaching us that although one is permitted to kill the individual who sinned by means of moridin, the Torah nevertheless prohibited killing him in this case until after his trial in beis din. However, Reb Chaim Ozer rejects this answer for several reasons. One reason: Why does the Chinuch say that one who kills the sinner is regarded as a murderer? Since he could kill him from the halacha of moridin, he should not be considered a murderer. The Chazon Ish (Yoreh De’ah 2:17) maintains that the halacha of moridin only applies when the sinner cannot be tried in beis din due to technical problems, i.e., no witnesses. Therefore, in a case to be brought in beis din one may not apply the halacha of moridin.

The second solution is that the pasuk is referring to a scenario in which we know that the individual did teshuvah. Therefore he can no longer be killed under the halacha of moridin. However, teshuvah does not remove the death penalty from beis din. Hence, the Torah says that we should wait until he is found guilty at trial before killing him.

I would like to suggest that the question does not start. I was scared to say that I learned the Rosh differently than Reb Chaim Ozer and Reb Yisroel Salanter. But, Baruch Hashem, I found afterwards that the Chazon Ish (Yoreh De’ah 2:12) learns the Rosh as I did. I believe that the Rosh is being taken out of context. The Rosh is discussing the Mishnah that says that there is no aveilus for people who are killed by beis din. The Rosh explains that this is because since they were warned that their life was on the line but nevertheless sinned, they are obviously not acting out of temptation; thus, they are comparable to a mummar l’hachis. I think that the Rosh never meant to say that anyone who transgresses after being warned is a mummar l’hachis regarding the halacha of moridin; rather the Rosh is saying that regarding aveilus we consider him a mummar, comparable to a mummar l’hachis – whereby aveilus does not apply.

Printed from: http://www.jewishpress.com/judaism/parsha/preempting-the-death-penalty/2012/07/18/

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