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text: Gray Matter IV
  גריי מאטר ד
  Gray Matter, by Chaim Jachter. Teaneck, N.J, 2000-2012
  
  
  Gray Matter IV
  
  Non Observant Jews
  
  Inviting a Non Observant Jew for a Shabbat or Yom Tov Meal
  
  Many families face the dilemma of whether to invite non-observant friends or relatives to a Shabbat or Yom Tov meal. On one hand, the potential for positive spiritual impact is enormous, as outreach (<i>kiruv</i>) professionals agree that seeing a joyous family experience a peak Torah event such as a Yom Tov meal has motivated many to increase their level of commitment to Torah observance. On the other hand, extending an invitation to a non-observant Jew to join a Yom Tov meal may involve the guest driving to the meal by car.
  This question is even more critical for one who recently has become religious but had previously hosted family gatherings for Yom Tov meals. If he does not continue inviting his relatives, he risks alienating them further. Similarly, if one does not invite relatives to a Shabbat or Yom Tov Bar Mitzvah, he may cause them great insult. The <i>poskim</i> of the twentieth century grappled with this quandary and have arrived at a variety of conclusions. We shall present three approaches: those of Rav Moshe Feinstein, Rav Moshe Shternbuch, and Rav Shlomo Zalman Auerbach.
  Rav Moshe Feinstein
  In 1953, Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> O.C. 1:99) was asked by a Rav in Detroit as to whether it is permissible for him to encourage people to come to shul knowing that those who live far away will drive to shul on Shabbat. Rav Moshe strongly advocates not encouraging attendance. He argues that doing so would constitute a violation of the prohibition of <i>lifnei iveir lo titein michshol</i> (Vayikra 19:14), placing a stumbling block before the blind. <i>Chazal </i>(Avodah Zarah 6b) understand this prohibition to include facilitating others (analogous to the blind, as they are blinded by their passions) to sin (the stumbling block). Extending the invitation to shul facilitates their sinful behavior of driving on Shabbat, a serious violation of Torah law, as each time one presses on the accelerator pedal, he violates the prohibition of <i>hav’ara</i> (kindling a fire) on Shabbat.1<i class="footnote">For an explanation why it is also forbidden to drive on Yom Tov even though kindling a fire is permitted in many circumstances, see <i>Teshuvot Yechave Da’at</i> 3:36.</i>
  Rav Moshe goes even further, asserting that extending such an invitation not only violates Lifnei Iveir, but also constitutes violating a more serious sin, namely, <i>meisit</i>, convincing someone to sin (Devarim 13:7-12), which in certain circumstances constitutes a capital crime. Rav Moshe proves that <i>meisit</i> applies beyond cases of influencing someone to worship <i>avodah zarah</i> (idolatry), the case given in the Torah, from the Gemara (Sanhedrin 29a) that classifies the snake of the Garden of Eden (Breishit 3) as a <i>meisit</i>. The snake never attempted to convince anyone to worship <i>avodah zarah</i>; it “merely” convinced Chavah to violate Hashem’s command not to eat from the Tree of Knowledge. Rav Moshe notes that even though convincing someone to violate a prohibition other than <i>avodah zarah</i> does not constitute a capital crime, it nevertheless is a very severe prohibition, to the extent that the heavenly court will not muster a defense for such action on one’s Day of Judgment, just as Hashem did not suggest a defense for the snake of the Garden of Eden (Sanhedrin 29a).
  Some have noted that this ruling of Rav Moshe appears to be inconsistent with his ruling (<i>Teshuvot Igrot Moshe</i> O.C. 4:79) that observant doctors are permitted to exchange shifts with non-observant Jews even if they will be causing the non-observant Jews to violate Shabbat. Rav Moshe reasons that since the non-observant in any event would violate Shabbat, it is better for them to spend Shabbat in the hospital where they will work for the sake of saving lives rather than violating Shabbat outside the hospital.2<i class="footnote">For further discussion of this issue, see <i>Gray Matter</i> 2:6-7 and Rabbi Howard D. Apfel’s essay in <i>The Journal of Halacha and Contemporary Society</i> 57:73-95.</i> One could similarly argue that it is better for the the non-observant Jews to spend Shabbat morning in shul, where they will not violate Shabbat, rather than in other venues where they would violate Shabbat the entire morning.
  It would seem that Rav Moshe forbade encouraging attendance in shul because it implies endorsement of driving on Shabbat simply for the purpose of a mitzvah. However, switching shifts does not necessarily imply endorsement of violating Shabbat, because it is in fact permitted (and required) to violate Shabbat in order to save lives. Thus, Rav Moshe might forbid inviting non-observant Jews for Yom Tov meals, because doing so implies endorsement of their driving.
  Rav Moshe Shternbuch
  Rav Moshe Shternbuch was asked by a newly-observant man if he was permitted to invite his parents to Shabbat evening dinner knowing that they would drive home after the meal. Rav Shternbuch permits the invitation, especially given that the child told his parents that he was upset with them driving on Shabbat.
  Rav Shternbuch makes a bold assertion regarding the prohibition of <i>lifnei iveir</i>. He argues that this restriction applies only if one seeks to harm the other individual. However, one does not violate <i>lifnei iveir </i>if his intention is to help the other person. Rav Shternbuch argues that <i>lifnei iveir </i>is analogous to the prohibition to wound (<i>chavalah</i>) in this regard; just as it is permitted to “wound” for therapeutic purposes, such as a surgeon performing a needed operation, so too, one is permitted to cause another Jew to sin in order to benefit them.
  Since the man intends to help his parents by inviting them to a Shabbat meal and thereby bringing them closer to Torah observance, he does not violate <i>lifnei iveir</i>. Rav Shternbuch notes that in the case in question, the parents were positively disposed towards being drawn closer to Torah life, and the Shabbat meal invitations were indeed part of the process of supporting their return to religious observance.
  Although Rav Shternbuch does not cite any precedent for his view, perhaps we can garner support for his approach from a suggestion made by Rav Akiva Eiger (Y.D. 181:6).3<i class="footnote">A similar suggestion is made the <i>Tiferet Shmuel</i> (Bava Metzia 5:3).</i> Some background information is needed to understand this suggestion. First, we must note that a man is forbidden to shave his face with a razor (<i>makif</i>) and is forbidden to be shaved by a razor (<i>nikaf</i>; see Makkot 20b). A woman is not included in this prohibition (Kiddushin 1:7), but violates <i>lifnei iveir </i>if she shaves a man’s face with a razor (Shulchan Aruch ad. loc.).
  Rav Akiva Eiger suggests, though, that if a man is determined to shave with a razor and cannot be persuaded to refrain from such activity, it is better for a woman to shave him than for him to shave himself. He reasons that had the man shaved himself, he would violate two prohibitions, shaving and being shaved. If the woman shaves him, though, he violates only one prohibition, that of being shaved. Even though the woman herself seemingly violates the prohibition of <i>lifnei iveir</i> by shaving the man, Rav Akiva Eiger permits her to shave him. Perhaps this suggestion supports Rav Shternbuch’s approach that one is not in violation of <i>lifnei iveir</i> if in the bigger picture he is helping that person. We should note, though, that some <i>poskim</i> do not accept Rav Akiva Eiger’s approach (see <i>Teshuvot Tzitz Eliezer</i> 15:19), and one can distinguish between Rav Shternbuch’s case and Rav Akiva Eiger’s case.4<i class="footnote">In the case discussed by Rav Akiva Eiger, the man would have shaved with a razor in any event, and assisting him may constitute only a rabbinic violation of <i>lifnei iveir</i> (see below in the chapter entitled “Serving Food to a Jew who will not Recite a <i>Brachah</i>”), while Rav Shternbuch is discussing a case in which the non-observant Jew would not have driven if not for the invitation, which would constitute <i>lifnei iveir</i> on a Torah-level.</i> Nonetheless, some support to Rav Shternbuch can be marshaled from Rav Akiva Eiger, as the rulings do share a similar attitude and approach.
  Rav Shlomo Zalman Auerbach
  We should note that <i>Chazal</i> already grappled with issues of relationships between fully-observant and less-observant Jews. Although, generally speaking, Jews in the time of <i>Chazal</i> were observant of most Torah laws, there were some Jews who were lax in their observance of some exceedingly challenging laws, such as <i>shmittah </i>(refraining from working the land in the seventh year).
  The Mishnah (<i>Shevi’it</i> 5:6) teaches that it is prohibited to sell certain agricultural implements to such semi-observant Jews during <i>shemittah</i>. Plowing implements, for example, are forbidden to be sold to such Jews during the seventh year, as these items will clearly be used for violation of Torah law, as all plowing is forbidden during <i>shmittah</i>. Harvesting equipment, on the other hand, is permitted to be sold, since certain harvesting is permitted during the <i>shmittah</i> year. The principle is that if the item is expected to be used only for forbidden activity, selling it violates <i>lifnei iveir</i>, but if the item is expected to be used for either forbidden or permitted activity, one does not violate <i>lifnei iveir</i>. One is not facilitating the commission of a sin in such a case, since the item will not necessarily be used for a forbidden use.
  Rav Shlomo Zalman Auerbach applies this principle in a letter addressed to Yeshivat Ohr Sameach, a well-known outreach yeshiva, regarding extending Shabbat and Yom Tov invitations to homes and beginner services in shuls. Rav Auerbach rules that one may invite a non-observant Jew on Shabbat or Yom Tov if he offers him a place to sleep over. In such a case, one does not violate <i>lifnei iveir</i>, since the invitation does not necessarily facilitate the violation of Shabbat or Yom Tov. By framing the invitation in this manner, the situation is analogous to the Mishnah’s case of selling harvesting equipment to a semi-observant Jew. As such, even if the non-observant Jews do drive on Shabbat as a result of the invitation, it is not a violation of <i>lifnei iveir</i>.
  Rav Yehudah Amital and Rav Hershel Schachter told me that they accept Rav Shlomo Zalman’s approach, and Rav Yosef Adler reports that Rav Yosef Dov Soloveitchik also espoused this approach.5<i class="footnote">For further discussion of Rav Shlomo Zalman’s ruling and of our entire issue, see Rav J. David Bleich’s <i>Contemporary Halakhic Problems</i> 4:92-104.</i> Rav Aharon Lichtenstein, as well, stated (in a shiur delivered at the Torah Academy of Bergen County) that he relies on Rav Shlomo Zalman’s view in cases of great need.
  Conclusion
  Rav Shlomo Zalman’s approach is adopted in practice by many families, outreach organizations, and shuls. However, one must consider the impact of non-observant relatives driving to or from one’s home on Shabbat and Yom Tov on his children. It must be explained that although they love the relative who visits, the parents are deeply saddened by the violation of Shabbat and Yom Tov.
  Some families have dealt with this quandary by limiting their invitations to their non-observant relatives to Chanukah, Purim, or Chol Hamoed.6<i class="footnote">An invitation for Chol Hamo’ed Pesach might be of special importance if thereby the non-observant Jew will avoid eating <i>chameitz</i> that he otherwise would have consumed.</i> Others will extend the invitation only if the driving will occur on Yom Tov but not Shabbat, since violation of Shabbat is a capital sin and violation of Yom Tov is not. Others will extend the invitation if the guest will violate Shabbat or Yom Tov in only one of his trips (i.e. the guest either arrives before Shabbat or Yom Tov or leaves after Shabbat or Yom Tov ends). In any event, one must carefully weigh his options and seek the guidance of his Rav in resolving this difficult challenge. In our next chapter we address the issue of cooking for non-observant Jews on Yom Tov.
  
  Cooking for Non Observant Jews on Yom Tov
  
  <i>Techumin</i> vol. 31 includes an important ruling from former Ashkenazic Chief Rabbi of Israel, Rav Yisrael Meir Lau, on a sensitive topic, the propriety of inviting non-observant Jews for Yom Tov meals. In the previous chapter, we discussed the propriety of inviting non-observant Jews for a Shabbat or Yom Tov meal if they will drive in violation of Halachah. In this chapter, we discuss an issue relevant specifically to Yom Tov: the problem of cooking on Yom Tov for the non-observant. This issue arises even if the non-observant individual will be staying in one’s home the entire Yom Tov. We shall present a variation of Rav Lau’s ruling that reflects the common practice in our community regarding this issue.
  The Prohibition to Cook for a <i>Nochri</i> on Yom Tov
  As is well known, the Torah (Shemot 12:16) permits us to cook on Yom Tov. The Torah presents this exception as follows: “However, that which is done for eating purposes may be done for you (<i>lachem</i>).” <i>Chazal </i>(Beitzah 20b) interpret the word “<i>lachem” t</i>o teach that we are permitted to cook “<i>lachem</i>,” for Jews, but not for <i>nochrim</i>. The Shulchan Aruch (O.C. 512:1) codifies this rule as normative Halachah with no dissenting opinions voiced by the Shulchan Aruch or any of its commentaries. The <i>Aruch Hashulchan</i> (O.C. 512:1) and Bei’ur Halachah (ad. loc. s.v. <i>Ein Mevashlim</i>) agree that cooking for a <i>nochri</i> constitutes a Torah-level prohibition.
  <i>Chazal</i> (Beitzah 21b) instituted that one is not permitted even to invite <i>nochrim </i>to a Yom Tov meal, lest one come to cook extra for him on Yom Tov. This rabbinic prohibition is also codified in the Shulchan Aruch (ad. loc.). One who hosts candidates for conversion on Yom Tov should consult his or her Rav for guidance regarding this issue. Minimally, the food that will be served should be prepared before Yom Tov.
  Applying this Prohibition to Non-Observant Jews
  The Gemara (Chullin 5a) categorizes Jews who publicly desecrate Shabbat as <i>nochrim</i>. While Shabbat violators remain Jews, as the Gemara (Sanhedrin 44a) famously proclaims, “He remains a Jew even if he sins,” Rav Yosef Dov Soloveitchik (cited in <i>Nefesh Harav</i> p. 282) explains that Sabbath violators are missing an aspect of <i>kedushat Yisrael </i>(the holiness of a Jew). Rav Soloveitchik notes that Shemot 15:2 refers to Hashem as “my God” and “my father’s God.” Rashi (ad. loc. s.v. <i>Elokei Avi</i>) explains that one’s connection to Hashem began with one’s forefathers, and the individual continues that holy status. The Sabbath violator remains Jewish by virtue of his ancestry, but the aspect of holiness of a Jew that emerges from one’s accepting Hashem as one’s own God is missing from a Jew who publicly desecrates one of the most basic laws of the Torah, Shabbat observance.
  The Mishnah Berurah (512:2) rules that the prohibition to cook for <i>nochrim</i> on Yom Tov applies to one cooking for those who publicly violate Shabbat. The Shaar Hatziyun (ad. loc. no. 2) cites the Rambam (<i>Hilchot Shabbat</i> 30:15) as a source for his ruling. The Rambam states that the status of a Shabbat violator as a <i>nochri</i> applies to all areas of Halachah. However, this is not a simple matter, as there are undoubtedly some areas of Halachah in which the Shabbat violator is considered to be Jewish, such as the need for a Shabbat violator to execute a <i>get</i> in order to remarry (Shulchan Aruch E.H. 140:11). Indeed, <i>Teshuvot Maharam Schick</i> (O.C. 281) is inclined to permit preparing food for a Shabbat desecrator on Yom Tov, but he refrains from doing so, in deference to the Pri Megadim (O.C. 512:1), who rules strictly. Rav Lau notes that even the Chafetz Chaim, in another work (<i>Likkutei Halachot Zevachim</i> ch.2, section “<i>Zevach Todah</i>,” p. 36), expresses uncertainty as to whether a Shabbat violator is considered a <i>nochri </i>for all matters of Jewish Law.
  <i>Teshuvot Tzitz Eliezer</i> (8:17) cites the Rashba (Beitzah 21b s.v. <i>Gezeirah Shema</i>), from whose words it is clear that this prohibition applies only to one cooking for <i>nochrim</i> and is not intended to include non-observant Jews in the latter category (though Rav Moshe Shternbuch [cited ad. loc.] notes that most <i>Rishonim</i>, such as the <i>Ran</i> to Beitzah 10b in the pages of the <i>Rif</i> s.v. <i>V’Ein Mezamnin</i>, disagree with the Rashba). In addition, the <i>Tzitz Eliezer</i> suggests that the Mishnah Berurah’s strict ruling applies only to cooking on Yom Tov on behalf of non-observant Jews but not to inviting Shabbat violators and serving them food cooked before Yom Tov.
  <i>Tinok Shenishbah</i>
  Moreover, even the Mishnah Berurah (512:2) cites opinions that this rule does not apply to Sabbath violators who are considered “<i>tinok shenishbah</i>.” The Gemara (Shabbat 68b) discusses the laws of a <i>tinok shenishbah</i>, one who is unaware of the laws of Shabbat because he was abducted as a baby and raised among gentiles. The Gemara rules that if such an individual desecrates Shabbat, he is nonetheless regarded as an inadvertent sinner. Accordingly, we do not view one who was raised among non-Jews as a deliberate sinner, for he never realizes the problems with his actions.
  Does the same apply to a Jew who is raised among non-observant Jews? Perhaps he should be treated the same way, for he also likely does not understand what <i>mitzvot</i> are or why he should keep them. In fact, the Rambam (<i>Hilchot Mamrim</i> 3:3), after codifying the harsh actions that the Halachah prescribes for a known <i>apikores</i> (someone who rejects one of the pillars of traditional Jewish thought), limits their application as follows:
  This rule applies only to one who has consciously rejected belief in the Oral Law based on his own thoughts and reasoning, such as Tzadok, Baytus (both of whom started sects that rejected parts of our Oral Law), or their followers. However, a child or grandchild of those who go astray... who was born to Karaites and was raised with these tenets is like a <i>tinok shenishbah</i>... He is like one who was coerced [to violate <i>mitzvot</i>]. Even if he heard as an adult that he is Jewish and saw practicing traditional Jews, he is still like one who is coerced, since he was raised on mistaken beliefs. … It is therefore appropriate to try to influence them to return to traditional Jewish observance and beliefs and to draw them with pleasant engagement until they return to a Torah life.
  Applications to Contemporary Jewry
  In modern times, we have seen a lamentable rise in the number of non-observant Jews, many of whom are raised this way from infancy. Are these Jews considered <i>tinokot shenishbu</i>? In the mid-nineteenth century, Rav Yaakov Etlinger (<i>Teshuvot Binyan Tzion Hachadashot </i>23) wrote the following about the Jews of his time:
  It is difficult for me to issue a ruling regarding contemporary non-observant Jews. We see that the majority of the Jewish community is no longer observant, and Shabbat desecration has become the norm. It is possible that these people should be considered as ones who think what they are doing is permissible, and as such, they are <i>karov lemeizid</i>, falling just short of being considered deliberate transgressors (see Makkot 7b). In addition, some of them recite <i>kiddush</i> and later engage in Shabbat desecration. Thus, they do not deny that God is the Creator.7<i class="footnote">Rav Etlinger notes here that Shabbat desecrators are considered <i>nochrim</i> only because by desecrating Shabbat, they display their lack of belief in Creation and the Creator.</i> The children of these people, who are ignorant of the laws of Shabbat and are merely emulating their parents, should be regarded as <i>tinokot shenishbu</i>.
  Several decades later, Rav David Tzvi Hoffman echoed Rav Etlinger's view of secular Jews (<i>Melameid Leho'il</i> 1:29): “The <i>Binyan Tzion</i> [wrote] that Shabbat desecrators in our time are somewhat like <i>tinokot shenishbu</i>, because most Jews in our land unfortunately are Shabbat desecrators, and it is not their intention to deny our basic beliefs.” However, many <i>poskim</i>, such as Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> E.H. 1:82:11 and 4:598<i class="footnote">Yakir Forman notes however, that in <i>Teshuvot Igrot Moshe</i> O.C. 4:91:6 Rav Feinstein seems to state that Conservative Jews are <i>tinokot shenishbu</i>.</i>) and Rav Shlomo Zalman Auerbach (<i>Halichot Shlomo</i>, <i>Moadim</i>, 9:322), do not, generally speaking, regard contemporary Jews as <i>tinok shenishbah</i>.
  Common Practice in our Community
  Common practice in our community is to host non-observant relatives for Yom Tov. Moreover, it is common practice for observant Jewish hotel owners to host and feed Jews who are obviously non-observant. Outreach professionals routinely invite non-observant Jews for Yom Tov, especially for the Seder. People rely on either the opinions that this prohibition does not apply to non-observant Jews or the opinions that contemporary non-observant Jews are regarded as <i>tinokot shenishbu</i>. It is certainly preferable in such a situation to cook all the Yom Tov food in advance in order to eliminate concern for violating a Torah-level prohibition. In any event, the Halachah (Mishnah Berurah 495:7) prefers preparing food before Yom Tov, so as not to be preoccupied with food preparation during the holiday.
  Conclusion
  Rav Shlomo Zalman Auerbach (ad. loc.) laments the inability to properly observe this Halachah in today’s circumstances. Nonetheless, we should aspire to create highly joyful and spiritual Yom Tov atmospheres in our homes that will inspire non-observant Yom Tov guests to return to a life of Torah observance.
  Postscript
  It is ironic that we rely on the opinions that contemporary non-observant Jews are compared to <i>tinokot shenishbu</i> in regard to inviting them for Yom Tov. In many circumstances, we rely on Rav Moshe Feinstein’s opinion that today’s non-observant Jews are not classified as <i>tinokot shenishbu </i>and are considered to be invalid witnesses. These circumstances include situations regarding a child of the second marriage of a woman who did not receive a proper <i>get</i> from her first husband. In such cases, we embrace Rav Moshe’s opinion (<i>Teshuvot Igrot Moshe</i> E.H. 4:59) that the child is not a <i>mamzer </i>(illegitimate) if all witnesses to the mother’s first marriage were non-observant (for further discussion of this issue, see <i>Gray Matter</i> 1:83-92). While there are ways to resolve this inconsistency, it highlights the fact that Rav Moshe’s ruling should be relied upon only if no other options exist. We should all make efforts to ensure that civilly divorced non-observant Jews receive a proper <i>get</i>, even if they were married in a non-Orthodox ceremony at which all witnesses were non-observant Jews. Our discussion raises the very distinct possibility that non-observant Jews are not disqualified from serving as witnesses, since they may be regarded as <i>tinokot shenishbu.</i>
  
  Yayin Mevushal and Non Observant Seder Guests
  
  For those who invite non-observant relatives or friends to the Seder, the question of the halachic status of <i>yayin mevushal</i>, cooked wine is of paramount importance. The question as to whether wine touched by a non-observant Jew is rendered non-kosher is subject to considerable debate. The commonly accepted approach, articulated by Rav Hershel Schachter,9<i class="footnote">Citations of Rav Schachter throughout this chapter are from a shiur delivered at an Orthodox Union seminar on wine and grape juice.</i> is that we should follow Rav Zvi Pesach Frank’s strict opinion (<i>Teshuvot Har Zvi</i> Y.D. 105) regarding this issue.10<i class="footnote">For further discussion, see <i>Teshuvot Yabia Omer</i> 1:11, 2:10, and 5:10 and <i>Techumin</i> 25:381-391.</i> Thus, if non-observant Jews will attend one’s Seder, then all the wine served should be <i>mevushal</i>.
  Many are familiar with the rule that we can be more lenient regarding wine touched by a <i>nochri</i> or non-observant Jew if the wine is <i>mevushal</i>. In this essay, we will explore the source of this Halachah, its parameters, and its application to the contemporary setting. We shall particularly stress the vigorous debate among contemporary Poskim as to whether pasteurizing wine renders it <i>yayin mevushal</i>.
  <i>Yayin Mevushal</i> – Tamudic Background
  The Gemara (Avodah Zarah 30a) cites <i>Rava</i>, who believes that although wine touched by a <i>nochri</i> is forbidden, these restrictions do not apply if the wine is cooked. The Gemara quotes a striking anecdote that demonstrates the application of this Halachah. The Gemara relates that Shmuel and a <i>nochri </i>named Avlet were sitting together and cooked wine was served to them. Avlet took his hand away from the wine so as not to render it forbidden to Shmuel. Shmuel thereupon told Avlet that he need not worry, as the wine was <i>mevushal</i>. Rashi (ad. loc. s.v. <i>Harei Amru</i>) writes that this Gemara teaches that we may drink <i>yayin mevushal</i> that was touched by a <i>nochri</i>. <i>Tosafot</i> (ad. loc. s.v. <i>Yayin Mevushal</i>) add that this constitutes normative Halachha. Rambam (<i>Hilchot Maachalot Asurot</i> 11:9) and Shulchan Aruch (Y.D. 123:3) codify this rule as well.
  The Rosh<i> (Avodah Zarah</i> 2:13) wonders why the fact that the wine is cooked
   eliminates the prohibition of wine touched by a <i>nochri</i>. After all, he explains, the reason <i>Chazal</i> instituted this prohibition was to prevent intermarriage (see Avodah Zarah 36b and <i>Tosafot</i> Avodah Zarah 29b s.v. <i>Yayin)</i>. Why should cooking the wine eliminate concern for intermarriage? The Rosh suggests that since cooked wine is relatively uncommon, <i>Chazal</i> did not apply their edict to an unusual circumstance.11<i class="footnote">Indeed, we find in many places that Chazal did not issue edicts regarding highly unusual circumstances (see, for example, Bava Metzia 46b).</i> Not surprisingly, the seemingly ubiquitous nature of <i>yayin mevushal</i> today has led many to question whether this leniency continues to apply in the contemporary setting.
  The Parameters of the <i>Yayin Mevushal</i> Leniency
  Rav Zvi Pesach Frank (<i>Teshuvot Har Zvi</i> Y.D. 111) notes that the Rambam (ad. loc.), <i>Tur </i>(Y.D. 123), and Shulchan Aruch (ad. loc.) clearly indicate that the leniency of <i>yayin mevushal</i> applies only to wine owned by a Jew that is touched by a Nochri. However, this leniency does not apply to wine owned by a <i>nochri</i>. Thus, Rav Frank forbids drinking cooked wine that was produced by a <i>nochri</i>-owned company, despite the fact that the wine making process is entirely automated and no <i>nochri</i> ever touches the grapes after they are placed in the machinery. Rav Hershel Schachter stated that Rav Frank’s ruling is accepted as normative. Rav Akiva Eiger’s comments to Y.D. 123:3 (s.v. <i>DeAf Al Gav</i>) seem to support Rav Frank’s ruling.
  There is considerable debate regarding how much the wine must be cooked in order for it to be categorized as <i>yayin mevushal</i>. The Rosh<i> </i>(ad. loc.) writes that once the wine is “heated,” it is classified as <i>yayin mevushal</i>. The Rosh<i> </i>cites the <i>Ra’avad</i>, who writes that this was the opinion of the Geonim. The Rashba (<i>Torat HaBayit</i> 5:3, citing Ramban) and the <i>Ran</i> (Avodah Zarah 10a in the pages of the <i>Rif</i> s.v. <i>Yayin Mevushal</i>, also citing the Ramban) write that wine is not considered <i>mevushal</i> until some of the wine is lost (i.e. it evaporates) in the heating process. The <i>Encyclopedia Talmudit</i> (24:367) cites a number of other dissenting opinions among the <i>Rishonim </i>regarding this matter.
  The Shulchan Aruch (ad. loc.) rules in accordance with the<i> </i>Rosh and the <i>Geonim</i>, while the <i>Shach (</i>Y.D. 123:7) rules in accordance with the Rashba<i> a</i>nd the <i>Ran</i>. In practice, Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 2:52; see also Y.D. 3:31) and Rav Ovadia Yosef (<i>Teshuvot Yabia Omer</i> 8:Y.D. 15) rule that the wine need not be boiled in order to be defined as <i>mevushal</i>. They believe that if the wine is heated to 175 degrees Fahrenheit (80 degrees Celsius), it certainly is regarded as <i>mevushal</i>. On the other hand, Rav Levi Yitzchok Greenwald (the Tzelemer Rav) often is quoted as requiring wine to be boiled in order to be classified as <i>mevushal.</i> This ruling seems to be based on the opinions cited in the <i>Darkei Teshuva</i> (123:15) and the Gilyon Maharsha (Y.D. 116:1).
  Is Pasteurized Wine Classified as <i>Yayin Mevushal</i>?
  Most wine found on the market today, even if it is labeled as <i>mevushal</i>, is pasteurized, not truly cooked.<i> </i>Indeed, three major Israeli <i>poskim</i> maintain that pasteurized wine is not considered <i>mevushal</i>. Rav Yosef Shalom Eliashiv (<i>Kovetz Teshuvot</i> 1:75) notees that based on the information provided to him, pasteurizing wine is a standard procedure in contemporary winemaking. Accordingly, he rules that the <i>yayin mevushal </i>leniency does not apply to pasteurized wine. This is based on the aforementioned comment of the Rosh that the basis of the <i>yayin mevushal </i>leniency is the fact that cooked wine is an unusual commodity. <i>Chazal</i>, Rav Eliashiv argues, did not permit <i>yayin mevushal</i> if such cooking is common practice.
  Rav Shlomo Zalman Auerbach (<i>Teshuvot Minchat Shlomo</i> 1:25) argues that the cooking involved in the pasteurization process qualitatively differs from the cooking of wine discussed in the Gemara, Rambam, and Shulchan Aruch. In the traditional process, the wine was cooked in open vats, thereby causing alcohol to evaporate and the wine’s taste to be noticeably changed. However, pasteurization involves a momentary heating of wine (or grape juice) in sealed pipes that causes little noticeable change in the taste of the product. Seemingly, the sole purpose of the pasteurization is to eliminate bacteria.
  Rav Shlomo Zalman argues that although wine that is pasteurized is technically considered cooked, since it is heated and some wine does evaporate (although it returns to the wine, since the process occurs in sealed pipes), it cannot be considered <i>mevushal,</i> because the taste is not noticeably changed. Rav Shlomo Zalman cites the Rashba<i> </i>(<i>Teshuvot</i> 4:149 and <i>Torat HaBayit</i> and <i>Mishmeret HaBayit</i> 5:3), <i>Meiri </i>(Avodah Zarah 29b and 30a), <i>Knesset HaGedolah</i> (123, <i>Hagahot Beit Yosef</i> 16) and <i>Sedei Chemed (Ma’arechet Yayin Nesech</i>), who all state that the leniency regarding <i>yayin mevushal </i>necessitates that the taste of the wine be altered by the cooking process.
  Rav Shlomo Zalman notes that there were those who responded to him that wine experts can in fact tell the difference between pasteurized wines and non-pasteurized wines.12<i class="footnote">In fact, wineries in France do not permit their products to be pasteurized unless they are being marketed to Kosher consumers who specifically want <i>yayin mevushal</i>.</i> Rav Shlomo Zalman responds that Halachah regarding this matter is determined by what most people discern, not by experts. Indeed, we find that in general Halachah is determined by the perception and abilities of most people, not of experts. For example, the Gemara (Shabbat 74b and see <i>Tosafot</i> ad. loc. s.v. <i>Chochmah Yeteirah</i>) teaches that spinning wool while it is yet on a goat’s back constitutes an unusual activity (<i>shinui</i>) and therefore does not constitute a biblical violation of Shabbat despite the fact that this is a routine activity for a number of extraordinarily talented people.
  In a more modern application, Rav Hershel Schachter reports that he once told a dentist that his Tefillin were sufficiently square since they appeared square and a simple measurement indicated that they were square. Despite the dentist’s protest that based on his experience with fillings that must be perfectly square he knows that his Tefillin are not perfectly square, Rav Schachter told him that the latter’s eyesight is the equivalent of a precision instrument, and the status of Tefillin as square is determined by what most people perceive and measure. Similarly, Rav Shlomo Zalman believes that the inability of non-experts to distinguish between pasteurized and non-pasteurized wine is the only relevant consideration.13<i class="footnote">See my <i>Bikkurei Shabbat</i> pp. 15-16.</i>
  One might respond, though, that Rav Shlomo Zalman’s assertion regarding the perception of non-experts might be valid only regarding Israelis in the 1980s (when Rav Shlomo Zalman published his <i>teshuvah</i>). Today, however, many people have developed sophisticated appreciation for wine, and it seems that many “amateur” wine drinkers readily perceive the difference between pasteurized and non-pasteurized wine and will specifically choose a “non-<i>mevusha</i>l” bottle when they wish to drink a fine wine.
  Rav Ben Tzion Abba Shaul (<i>Teshuvot Ohr LeTzion</i> 2:20:19) also rules that pasteurized wine is not considered <i>mevushal</i>. He reasons that because the evaporated wine is not lost thereby, it fails to meet the Shach’s definition of <i>mevushal</i>. Rav Ovadia Yosef responds that the evaporated portion of the wine that returns has lost its status of wine and it is no longer considered wine when it returns. Thus, technically speaking, the quantity of wine has been reduced in the pasteurization process.
  Defending Common Practice to Regard Pasteurized Wines as Y<i>ayin Mevushal</i>
  Rav Hershel Schachter noted that the prevailing custom in America is to follow the ruling of Rav Moshe Feinstein (ad. loc.) and other major <i>poskim</i> in America that pasteurization renders wine <i>mevushal</i>. 14<i class="footnote">Kedem wines in New York, though, follows the stringent position of the Tzelemer Rav.</i> Indeed, Rav Ovadia Yosef notes that common practice in Israel is also to be lenient about this matter. Even Rav Shlomo Zalman acknowledges that many are lenient regarding this issue. Although he expresses some hesitancy about it, Dayan Weisz (<i>Teshuvot Minchat Yitzchak</i> 7:61) endorses the common practice to be lenient “since this has become the prevailing practice with the consent of eminent halachic authorities.”
  Dayan Weisz and Rav Ovadia Yosef (Rav Shlomo Zalman also concedes this point) do not share Rav Eliashiv’s aforementioned concern that pasteurized wine has become common practice. They believe that even though “cooking” wine today is commonplace, this change is irrelevant. When <i>Chazal</i> established these Halachot, they reason, cooking wine was uncommon, and we are not authorized to enact new rules (see Rosh, Shabbat 2:15 and <i>Teshuvot Yechave Da’at</i> 2:49) or alter <i>Chazal</i>’s edicts. Moreover, Rav Ovadia notes that the Rosh cited by Rav Eliashiv does not appear to constitute normative Halachah, as indicated by the Taz (Y.D. 123:3) and Rav Akiva Eiger (ad. loc.). Most importantly, Rav Eliashiv specifically writes that his ruling applies only if the information provided to him was accurate. Rav Shmuel David (<i>Techumin</i> 14:421) notes that Rav Eliashiv’s ruling needs to be revisited, since many wineries outside of Israel do not pasteurize their wines. Indeed, kosher wine expert Mr. Feivish Herzog of Kedem wines stated15<i class="footnote">At the aforecited OU seminar.</i> that Rav Eliashiv was indeed provided with inaccurate information. He explained that wine does not have to be pasteurized for health reasons (the alcohol eliminates concern for bacteria), and usually only kosher wines are pasteurized to create <i>yayin mevushal</i>. For example, Mr. Herzog explained, Gallo and Taylor wines (popular non-kosher wines) do not pasteurize their wines except in the case of a bad grape harvest. Accordingly, cooking wine appears to be uncommon even today, and even according to the Rosh’s explanation of the <i>yayin mevushal</i>, the leniency remains applicable.16<i class="footnote">This applies to wine; pasteurization is common in the production of grape juice.</i> Mr. Terry Harkham, owner of Harkham wines of Australia, confirmed (in conversation) the accuracy of Mr. Herzog’ s assertions.
  Conclusion
  The common practice to regard pasteurized wines as <i>mevushal </i>is based on the rulings of many of the twentieth century’s leading Poskim. Moreover, Rav Shlomo Zalman’s strict ruling appears to emerge from a reality that has changed since the time that he wrote his Teshuva, and Rav Eliashiv’s strict ruling seems to stem from incorrect information provided to him. Furthermore, Rav Weisz notes, one may be lenient regarding non-observant Jews, since there is considerable debate as to whether a non-observant Jew touching wine renders it non-kosher.17<i class="footnote">See <i>Nishmat Avraham</i> Y.D. 124:1.</i> Accordingly, it seems that one may invite non-observant relatives and friends to the Seder without concern regarding the wine, as long as the wine is marked as <i>mevushal</i>.
  
  Serving Food to a Jew who will not Recite a Brachah
  
  A difficult Halachah for some to observe is the prohibition to serve food to a Jew who will not recite a <i>brachah</i> or serve bread to a Jew who will not wash <i>netilat yadayim</i> (Shulchan Aruch O.C. 169:2 and Rama<i> </i>O.C. 163:2). The Rama (ad. loc.) explains that one who does so violates <i>lifnei iveir lo titein michshol</i> (Vayikra 19:14), the prohibition to cause another to sin. This Halachah has the potential to prevent interaction between observant and non-observant Jews.
  We shall review four <i>teshuvot </i>written in the twentieth century by halachic authorities who seek to grapple with this serious dilemma – those of Rav Shlomo Zalman Auerbach, Rav Yosef Shalom Eliashiv, Rav Yehuda Amital, and Rav Dov Brisman. These <i>poskim</i>, whose styles of halachic decision-making differ significantly, provide four differing perspectives on how to manage this challenging Halachah18<i class="footnote">Rav Hershel Schachter told me that a host can deal with this challenge by participating in the eating and reciting the <i>brachah</i> aloud. It is then the choice of the guests to recite “Amen” and thereby fulfill their obligation to recite a Bracha. Responsibility for failure to recite the <i>brachah</i> is then shifted to the guest and not the host serving the food. Rav Schachter reports that he heard that this is how the <i>Chazon Ish</i> dealt with this issue during his celebrated meeting with Israeli Prime Minister David Ben-Gurion.</i>.
  Rav Shlomo Zalman Auerbach
  Rav Auerbach (<i>Teshuvot Minchat Shlomo</i> 1:35) writes:
  Regarding the fact that one must measure his ways and intend that his actions be done for the sake of Heaven, if one is visited by a prominent guest who does not observe Torah and Mitzvot but nonetheless loves observant Jews, and who supports Torah institutions and the like, and if the host does not act with accepted manners and offer his guest some food and drink because of the Halacha forbidding serving food to someone who will not recite a Bracha, and even if in a respectful manner one will request that he wash Netilat Yadayim and recite a Bracha, he will perceive this as an insult and it will anger him greatly, and it is likely this will alienate him (Heaven forfend) even more from Torah, and he will become angry and hate those who walk in the path of Torah, in such a situation I think that it is proper to serve this guest food and drink.
  Rav Shlomo Zalman notes that Halachah (Shabbat 4a) forbids violating a minor sin in order that another Jew should not violate a major sin. For example, it is prohibited to separate <i>terumot </i>and <i>maaserot</i> (tithes) on Shabbat19<i class="footnote">Chazal forbade separating <i>terumot </i>and <i>maaserot</i> on Shabbat because it is a form of “fixing” the food; see Beitzah 36b.</i> in order to spare another Jew from the very serious sin of consuming <i>tevel</i> (non-tithed foods). Accordingly, Rav Auerbach does not espouse violating <i>lifnei iveir</i> in order to spare another Jew from the sin of hating others.
  Rather, he explains that the host is faced with a dilemma. He can either facilitate the sin of eating without reciting a <i>brachah</i>, or he can facilitate the sin of hating others. Accordingly, Rav Shlomo Zalman argues that one should choose to facilitate the lesser sin, thereby sparing the other party from a more serious violation. Accordingly, one who serves the food in such a situation does not violate <i>lifnei iveir</i>, because in reality he is minimizing the other party’s sin20<i class="footnote">Alan (Avi) Blumenfeld, Esq. observes that Rav Shlomo Zalman clearly does not subscribe to Rav Shternbuch’s broad assertion (cited in the chapter discussing non-observant Jews for a Shabbat meal) that the prohibition of <i>lifnei iveir</i> does not apply when one intends to benefit the individual. </i>. One may add that not inviting the guest altogether does not always solve this issue, as this also can fuel hatred.
  Rav Shlomo Zalman notes that this is an example of Shlomo Hamelech’s advice, “Do not reprimand the scoffer lest he come to hate you” (Mishlei 9:8). In fact, Rav Dov Brisman (<i>Teshuvot Shalmei Chovah</i> 33), in support of this ruling, cites the <i>Teshuvot Chavot Ya’ir</i> (185), who writes explicitly that this Halachah does not apply when it will cause enmity and hatred. Nonetheless, Rav Auerbach expresses hesitancy at the conclusion of his responsum and writes, “Nonetheless, the matter needs a decision.” It seems that Rav Shlomo Zalman’s hesitancy emerges from his fear that his ruling would create the perception that a Halachah from the Shulchan Aruch has been eliminated, since in most modern-day situations, Rav Shlomo Zalman’s reasoning will apply.
  Rav Yosef Shalom Eliashiv
  Rav Eliashiv (<i>Kovetz Teshuvot</i> 1:20) was asked about this issue by someone who, as part of his job, was required to bring lunch to his boss, who would not wash <i>netilat yadayim</i> or recite a <i>brachah</i>, and to serve coffee and refreshments to visitors, many of whom would not recite a <i>brachah</i>. The employee would be fired if he refused to render these services. Rav Eliashiv begins by noting that if the boss would prepare his own lunch if the employee refused to serve him, then it would be possible to be lenient. Rav Eliashiv cites the <i>Teshuvot Torat Chessed</i> (5), who permits a restaurant to serve food to those who will not recite a <i>brachah</i>, as a precedent for this ruling.
  The basis of this ruling is the Gemara (Avodah Zarah 6b) that states that if the sin could have been performed by the sinner without assistance (<i>chad avra d’nahara</i> - literally, one side of the river) one does not violate <i>lifnei iveir</i>.21<i class="footnote">The Gemara gives an example of one who brings wine to a Nazirite who in any event had easy access to wine.</i> Although many authorities (such as <i>Tosafot</i> Shabbat 3a s.v. <i>Bava</i>) rule that even in such a case there is a rabbinic prohibition to assist someone to sin (<i>mesayeiya liydei ovrei aveirah</i>), in a case where the sin in question is only a rabbinic and the food is not intrinsically prohibited (i.e. the food is kosher), the <i>Torat Chessed</i> rules leniently.
  Nonetheless, Rav Eliashiv notes that if the boss would not serve lunch to himself if the employee would not assist him, it would pose a very serious problem. Rav Eliashiv argues that even though another employee would in any event serve the boss lunch, this does not mitigate the violation of <i>lifnei iveir</i>. Rav Eliashiv refers to the ruling of the <i>Chochmat Adam</i> (130:2, citing the <i>Mishneh Lamelech Hilchot Malveh V’loveh</i> 4:2), who argues that it is not considered to be <i>chad avra d’nahara</i> unless there is a non-Jew he would facilitate the sin if the Jew would not do so. The scenario presented to Rav Eliashiv appears to have been in Eretz Yisrael, where all the employees of the firm were Jewish. Thus, this avenue of leniency would not be applicable.
  Moreover, Rav Eliashiv argues that even if there was a non-Jewish employee who could be enlisted to serve the food and drink, it would still not be considered a <i>chad avra d’nahara</i>, since the employee is simply doing the bidding of the Jewish employer and thus it would be considered that the Jewish employer is facilitating the sin even if he sends a non-Jewish employee to do the deed.
   Rav Eliashiv rules that the same applies in regards to serving coffee to the guests, since they certainly would not serve themselves coffee in such circumstances. Thus, he rules that Halachah essentially prohibits serving food in such a circumstance if one is certain that the employer and/or guest will not recite a <i>brachah</i>. Nonetheless, Rav Eliashiv writes that if the employee depends on the job to support his family and cannot find alternative employment, it is possible to be lenient. The basis for this leniency is that there are <i>poskim</i> (such as <i>Teshuvot Ketav Sofer</i> Y.D.83) who disagree with the <i>Chochmat Adam</i> and argue that <i>chad avra d’nahara</i> applies even if only another Jew will facilitate the sin. Furthermore, Rav Eliashiv notes that some <i>Rishonim</i> (<i>Tosafot</i>, Rosh, and <i>Meiri</i>) believe that facilitating a violation of rabbinic law does not constitute a Torah-level prohibition of <i>lifnei iveir</i>. If the <i>lifnei iveir</i> in question is rabbinic, then it is possible to be lenient in cases where avoiding the prohibition would result in a large financial loss. Rav Eliashiv concludes by advising the person who posed the question to pray to Hashem that he find employment where he will not find it necessary to rely on this leniency.
  Rav Yehudah Amital
  Rav Amital (<i>Alon Shevut </i>15) was asked:
  Must one refrain from serving food to those who do not perform Netilat Yadayim and recite Brachot, because it is stated in Shulchan Aruch O.C. 163:2 and 169:2 [that this is prohibited]? I have not seen people observing this Halacha and it is common practice to invite even those who are not careful about Netilat Yadaim and Brachot to meals and celebrations, and I have not heard anyone raise any objections.
  Rav Amital responded:
  I will begin with your conclusion. Already a few generations ago, the Maamar Mordechai (O.C. 169), after he concluded that one should act strictly in this regard, writes, ‘But we are not careful about this matter, and may Hashem forgive us for this.’ It is our obligation ‘to search for leniency and to justify the common practice not to be concerned with <i>lifnei iveir</i> regarding this matter’ [quoting <i>Teshuvot Torat Chesed</i> 5].
  Rav Amital infers that <i>Tosafot</i> (Avodah Zarah 6b s.v. <i>Menayin</i>) already were lenient about this matter, as they write, “It is forbidden to present apostate Jews with non-kosher food.” Rav Amital infers that <i>Tosafot</i> permit giving apostates kosher food, even though they obviously will not wash <i>netilat yadayim</i> or recite <i>brachot</i>.
  Rav Amital presents a number of arguments to be lenient. He notes that some authorities limit the prohibition to placing food into the recipient’s mouth and do not forbid placing food before someone. He also notes that the Rama<i> </i>(O.C. 169:2) cites the <i>Talmidei Rabbeinu Yonah</i> (<i>Brachot</i> 42a in the <i>Rif</i>’s pages s.v. <i>Lo</i>), who permit serving food to a poor individual who will not recite <i>brachot</i>, because for the sake of a mitzvah (<i>tzedakah</i>), there is no prohibition.22<i class="footnote">The <i>Beit Yosef</i> (O.C. 169) disputes this ruling.</i> Rav Amital adds that the Vilna Gaon (<i>Beiur Hagra</i> O.C. 169:2) cites the Mishnah (<i>Demai</i> 3:1) that permits serving <i>demai</i>23<i class="footnote"><i>Demai </i>refers to produce regarding which there exists a relatively small chance that it is not properly tithed.</i> to the poor and to guests as a source for the understanding of <i>Talmidei Rabbeinu Yonah</i>.24<i class="footnote">Rav Amital assumes that the <i>Gra</i>’s attempt to locate a source for the lenient position, along with his lack of objection to it, indicates his acceptance of that view.</i> Based on these sources, Rav Amital suggests that if one invites non-observant Jews for the sake of Heaven to bring them closer to Torah, “which undoubtedly constitutes a <i>mitzvah</i> in our days, as is stated a number of times by Rav Avraham Yitzchak Hakohen Kook and the Chazon Ish, there is room to be lenient.”
  Rav Amital concludes by noting that the Mishnah (<i>Demai</i> 4:2) and Rama<i> </i>(Y.D. 112:15; see also Shach, <i>ibid</i>.) are lenient regarding food-related matters, since refusing to serve food can lead to severe strife. Rav Amital believes that there is room to apply these leniencies here as well. Somewhat surprisingly, Rav Amital does not conclude with a resounding endorsement of the lenient approach to this Halachah. Rather, he states, “In my opinion, in Tzahal [The Israel Defense Forces], as long as one does not place the food directly in the other person’s mouth, one should not be strict at all,” Implying that in other situations, he might be more inclined to be strict.
  Rav Dov Brisman
  Rav Brisman presents a lengthy discussion of this topic and suggests many possible avenues of leniency. Among his points is that one may be lenient if he is unsure that a <i>brachah</i> will not be recited.25<i class="footnote">Rav Eliashiv implies this as well, although the Shulchan Aruch (O.C. 169:2) might indicate otherwise.</i> He also applies the principle that a positive mitzvah can override a negative prohibition if they both are presented at the same time (i.e. at the moment one violates the prohibition, he fulfills the mitzvah; see <i>Tosafot</i> Gittin 41a s.v. <i>Lisa</i>). Rav Brisman argues that if one serves a meal to someone who is not observant with the intention of trying to sway him to live a Torah life, then at the time that <i>lifnei iveir</i> is violated, the mitzvah of reproving one’s friend (<i>Tochachah</i>; Vayikra 19:17) is fulfilled, and thus the mitzvah of <i>Tochachah </i>overrides the prohibition of <i>lifnei iveir</i>. However, Rav Brisman permits serving food only in a buffet style, thereby reducing the direct connection between the presentation of the food and the recipient not reciting a <i>brachah</i>.
  Conclusion
  The <i>poskim</i> who grapple with these issues struggle to balance fidelity to Halachah as it is written in the traditional sources with helping observant Jews function appropriately. Each of the <i>poskim </i>expresses hesitancy about being lenient, and this should remind us to try within reason to gently prod our guests to recite <i>brachot</i>. This should highlight for us the paramount importance of the recitation of <i>brachot</i>.
  
  Geirut
  
  The Geirut Controversy
  
  Introduction
  In recent years, there has been much rancorous debate in the Jewish media regarding standards for Orthodox conversion (<i>Geirut</i>) both in Israel and North America.
  Some of the debate was generated by the Rabbinical Council of America (RCA) and Beth Din of America issuing the Geirus Policies and Standards (GPS), which accept a conversion only if it is clear to the <i>beit din</i> that the convert will fully observe the laws of the Torah. We will attempt to demonstrate that the RCA guidelines represent the mainstream Halachic viewpoint.
  A Bizarre Question
  Some time ago, an acquaintance approached me with a highly unusual question. Unfortunately, this young man was dating a non-Jewish woman - but she had expressed willingness to convert to Judaism. She even was willing to observe the mitzvot of the Torah, as she found the observant Jewish lifestyle highly appealing. However, a serious impediment was the fact that she unabashedly denied the existence of a Creator. The acquaintance asked if she would be eligible for conversion.
  I responded that such a conversion would be patently absurd. The essence of <i>geirut</i> is expressed by the quintessential convert, the biblical character Rut, who declared her commitment to Torah so magnificently and succinctly: “<i>Ameich ami veilokaiyich Elokai</i>,” “Your nation is my nation and your God is my God” (<i>Rut</i> 1:16). Indeed, Boaz (<i>Rut</i> 2:12) so beautifully describes Rut as “having come to seek shelter under the wings” of Hashem the God of Israel.
  The Rambam <i>(Hilchot Issurei Biah</i> 13:4) employs similar terminology. He describes a convert as one who “wishes to enter the covenant, seek shelter beneath the wings of the Shechinah [the divine presence], and accept the yoke of Torah.” The Rambam continues that such as individual requires immersion (<i>tevilah</i>) in a mikveh and <i>brit milah</i> for a male.26<i class="footnote">In the times when the Beit Hamikdash stood, all converts were also required to bring a sacrifice at the time of their conversion.</i>
  Accordingly, an individual who harbors no ambition to establish a bond with Hashem is not a viable candidate for conversion. Certainly, one who is entrenched in denial of Hashem cannot be admitted by a <i>beit din</i> for conversion. Even if such an individual undergoes the process of conversion with all the necessary trappings, including immersion and acceptance of mitzvot before a <i>beit din</i> consisting of Orthodox rabbis, the conversion is invalid.
  There is a fundamental distinction between <i>geirut</i> and other Jewish procedures such as <i>kiddushin</i> (Jewish marriage) and <i>gittin</i> (Jewish divorces). A Jewish marriage ceremony or divorce proceeding that is conducted in full conformity with halachic standards is completely valid even if either the man or woman is not committed to Torah observance and belief. Conversion rituals, on the other hand, are processes that must express a deep commitment to Hashem and His people in order to have any meaning.
  A similar Halachah exists regarding <i>tefillah</i>. One who recites every word of <i>tefillah </i>perfectly and precisely but lacks <i>kavanah</i> (feeling or intention to connect with Hashem) does not fulfill the mitzvah of <i>tefillah</i> (Rambam <i>Hilchot Tefillah</i> 4:1 and Shulchan Aruch O.C. 101:1). <i>Tefillah</i> is the external manifestation of an internal worship of the heart (see <i>Ta’anit</i> 2a). Similarly, <i>milah</i> and <i>tevilah</i> are meaningless unless they are external expressions of a desire “to enter the covenant, seek shelter under the wings of the Shechinah and accept the yoke of Mitzvot.”
  A Delicate Balance
  A <i>beit din</i> that assumes the awesome responsibility to accept <i>geirim</i> (converts) is charged with the difficult mission of striking a very delicate balance between competing principles. On one hand, the Gemara (Yevamot 109b) makes a remarkable statement that “evil after evil will befall those who accept converts.” <i>Tosafot</i> (ad. loc. s.v. <i>Ra’ah</i>) limit the Gemara’s declaration to a <i>beit din</i> that either seeks to convince <i>nochrim</i> to convert or converts individuals indiscriminately or impulsively. If, <i>Tosafot</i> continue, the candidate is persistent in his desire to convert,27<i class="footnote"><i>Tosafot</i> here allude to <i>Rut</i> 1:18.</i> we should accept him. Indeed, I heard Rav Yosef Dov Soloveitchik declare that a non-Jew who is sincerely committed to Torah enjoys the <i>right</i> to be converted.
  <i>Tosafot</i> support their assertion by citing examples of outstanding <i>batei din</i>, such as those of Yehoshua28<i class="footnote">According to the Midrash (see also Megillah 14b), Yehoshua accepted Rachav as a convert.</i> and Hillel (Shabbat 31a), who accepted sincere <i>geirim</i>. Although the individuals who came to him were hardly viable candidates for conversion at first – one of them denied the validity of the oral law - Hillel was confident that with patience and wisdom he would be able to shepherd them to full acceptance of Torah, an expectation that he fulfilled. Moreover, <i>Tosafot</i> cite the example of Timnah (Breishit 36:12) who, according to <i>Chazal</i> (Sanhedrin 99b), was unjustifiably denied conversion by our Avot (forefathers). Out of bitterness, she agreed to be a concubine to Eisav’s son Elifaz and bore Amaleik, who perpetually inflicts great pain upon Israel.
  Accordingly, although <i>batei din</i> must exercise caution and not hastily or indiscriminately convert candidates for <i>geirut</i>, they also must not reject those with genuine commitment to become successful <i>geirim</i> who will lead fully observant lives.
  Hillel’s non-Believing Convert – Rashi and the <i>Maharsha</i>
  Accepting the yoke of Torah is an essential component of <i>geirut</i>. The Gemara (Bechorot 30b) states that even if a convert is willing to accept all of the Torah except for one rabbinic precept, we do not accept him as a candidate for conversion. A <i>giyoret</i> (female convert) who is a passionate vegan related to me that the <i>beit din</i> that converted her inquired whether she would be willing to partake of the <i>Korban Pesach</i> (Pesach sacrifice) when the Beit HaMikdash will be rebuilt despite her vegan convictions. She responded without hesitation that she would consume a <i>kezayit </i>(the minimum amount required) of the <i>Korban Pesach</i>. This answer reflected her recognition that divine commands take priority over one’s ethical intuitions (manifested in biblical examples such as by <i>Akeidat Yitzchak</i>, Isaac’s binding).
  Accordingly, by what right did Hillel convert the gentleman who stated that he believed only in the divine authority of the Written Law and not of the Oral Law? After all, by rejecting the Oral Law, this candidate expressed his lack of acceptance of the vast majority of mitzvot, such as lighting Chanukah candles or the proper placement of tefillin. Rashi (ad. loc. s.v. <i>Gayarei</i>) explains that since the candidate “did not deny the authority of the Oral Law, he merely did not believe in its divine origin; Hillel was convinced that after he would teach him that he will rely on him” and grow to believe in the authority of the Oral Law as well.
  <i>Maharsha </i>(ad. loc. s.v. <i>Amar Lei</i>) clarifies that Hillel did not convert this gentleman at the time that he did not yet believe in the Oral Law. Hillel merely accepted him as a viable candidate for conversion. Had Hillel not accepted him as a feasible candidate, it would have been forbidden to teach him Torah, as it is forbidden to teach Torah to a <i>nochri</i> (Chagigah 13b) unless he is doing so in contemplation of conversion29<i class="footnote">Unlike the <i>Maharsha</i>, Rav Akiva Eiger (<i>Teshuvot</i> no. 41) prohibits teaching Torah to even a viable candidate for conversion. Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 2:104), Rav Ovadia Yosef (<i>Teshuvot Yabia Omer</i> 2: Y.D. 17) and Dayan Weisz (<i>Teshuvot Minchat Yitzchak</i> 3:98) all rule in accordance with the <i>Maharsha</i>. Indeed, common practice follows the approach of the <i>Maharsha</i>. In fact, Rav Hershel Schachter told me that a viable candidate for conversion should be invited for Shabbat and Yom Tov meals in order for him to learn how to conduct himself as a proper Jew after conversion. </i>. <i>Maharsha</i> explains that Hillel converted the gentleman only after he came to believe that even the Oral Law is from Hashem.
  <i>Hoda’at Mitzvot</i> and <i>Kabbalat Mitzvot</i> – Rambam and <i>Chemdat Shlomo</i>
  Rambam (ad. loc. 14:17) and Shulchan Aruch (Y.D. 268:12) rule that if a convert is not informed of the mitzvot the conversion is nonetheless valid <i>b’diavad</i> (after the fact). This is based on the Gemara (Shabbat 68a) that discusses one who converted despite being unaware of the obligation to observe Shabbat. <i>Tosafot</i> (ad. loc. s.v. <i>Geir)</i> clarify that this individual certainly converted before a <i>b</i><i>eit din</i>, since the Gemara (Yevamot 47b) states a conversion is invalid if it is not conducted in the presence of a <i>b</i><i>eit din</i>. <i>Tosafot</i> explain that the <i>b</i><i>eit din</i> erred and did not inform the convert of the mitzvot, and as such he did not know about Shabbat.
  This ruling of Rambam appears to contradict his aforementioned assertion that acceptance of the yoke of Torah represents the essence of the <i>geirut</i>. If <i>hoda’at mitzvot</i> (informing the convert about the mitzvot) is not essential, how can <i>kabbalat mitzvot</i> constitute the most important component of a conversion?
  The <i>Teshuvot Chemdat Shlomo</i> (Y.D. 29-30, referenced in the Pitchei Teshuvah 268:9) draws a fundamental distinction between <i>hoda’at mitzvot</i> and <i>kabbalat mitzvot</i>. He argues that although <i>hoda’at mitzvot</i> is not essential, <i>kabbalat mitzvot </i>is crucial. The convert’s commitment to observe mitzvot signifies the core of the conversion. If in a peculiar case the b<i>eit din</i> mistakenly failed to inform the convert of the Torah’s obligations, the <i>geirut</i> is acceptable <i>b’diavad</i>. However, if the convert is not committed to accept the Torah’s rules when he finds out what they are, the conversion is invalid.
  The <i>Chemdat Shlomo</i>’s distinction has been accepted by the overwhelming majority of <i>poskim.</i> These authorities include Rav Yitzchak Shmelkes (<i>Teshuvot Beit Yitzchak</i> Y.D. 2:100), Rav Avraham Yitzchak HaKohen Kook (<i>Teshuvot Da’at Kohen</i> 147), Rav Avraham Kahana-Shapiro (<i>Teshuvot Devar Avraham</i> 3:28), Rav Chaim Ozer Grodzinsky (<i>Teshuvot Achiezer</i> 3:26 and 28), Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 1:157), Rav Yosef Dov Soloveitchik (citing his father in n. 22 to <i>Kol Dodi Dofeik</i>), Rav Shlomo Zalman Auerbach (<i>Teshuvot Minchat Shlomo</i> 1:35), and Rav Yosef Shalom Eliashiv (<i>Kovetz Teshuvot</i> 1:104). These authorities rule that if a covert did not commit to observing the Torah, the conversion is invalid. In accordance with the consensus opinion, the RCA’s GPS document (available at www.rabbis.org) sets forth systems and standards in which <i>batei din</i> can be reasonably assured that individuals approved for conversion are sincerely committed to Torah observance and belief.
  Rav Uzziel vs. Rav Auerbach
  There are, however, several <i>poskim</i> who support more lenient approaches. The primary advocate for leniency in regard to <i>kabbalat mitzvot</i> is Rav Ben-Zion Uzziel. His approach is summarized (<i>Piskei Uzziel</i> 65):
  [Regarding] a non-Jew who has been circumcised and has immersed in a Mikvah for the purpose of conversion...we do not require that he observe the Mitzvot, and the Beit Din does not even need to know that he will observe Mitzvot, for otherwise converts will not be accepted in Israel, because who can guarantee that the nochri will be loyal to all of the Mitzvot of the Torah…the requirement to fulfill Mitzvot is not an indispensable component of the conversion even LeChatchilah (ideally)…it is permissible to accept male and female converts, even if it is known to us that they will not fulfill all of the Mitzvot, because eventually they will come to fulfill Mitzvot, and we are obligated to open this door for them. And if they do not fulfill Mitzvot, they will bear their sins and we are free from responsibility for this.
  Rav Uzziel bases himself on Hillel’s acceptance of converts that were not yet committed to all of the Torah’s mitzvot and beliefs. Rav Uzziel understands that Hillel actually converted the man who came to him before they fully embraced Torah life. Rav Uzziel felt compelled to adopt such a lenient stance due to concern for intermarriage that would occur had lenient standards for conversion not been offered.
  As noted, though, the overwhelming majority of <i>poskim</i> of the twentieth century view <i>kabbalat mitzvot</i> as the essence of <i>geirut</i> whose absence invalidates a conversion.
  Rav Shlomo Zalman Auerbach’s words (<i>Teshuvot Minchat Shlomo</i> 1:35) contrast sharply with those of Rav Uzziel:
  The class of converts…regarding whom we are almost certain that they are not committed at all to fulfill and observe the Mitzvot of Hashem, in such a situation, in my humble opinion, anyone who facilitates such a conversion, even if they mistakenly think that they are full-fledged converts, nonetheless even according to their approach those who convert them violate the prohibition of Lifnei Iveir [the prohibition to cause another to sin], since now the convert will violate prohibitions such as Shabbat and Kashrut that before the conversion did not constitute violation of God’s word.
  Rav David Zvi Hoffman vs. Rav Herzog, Rav Feinstein, and Rav Yosef
  Rav David Zvi Hoffman (<i>Teshuvot Melamed Leho’il</i> 3:8), the leading Rav in late-nineteenth- and early-twentieth-century Germany, was faced with a difficult issue. A Kohen married a non-Jewish woman in a civil ceremony and bore him a son who received a <i>brit milah</i>. The son subsequently died, and the wife was distraught over the fact that as far as she understood, she was not of the same religion as her deceased child. In addition to the concern over the intermarriage, there was fear that the wife would be driven to insanity if she would not be allowed to convert. A <i>chillul Hashem</i> thereby would be created, as people would say that the Jews had no concern for the wellbeing of the wife.
  However, among the halachic impediments to sanctioning such a conversion was the fact that the wife expected to remain married to her husband; a <i>giyoret</i>, however, is forbidden to marry a Kohen (<i>Yechezkeil</i> 44:22; see Kiddushin 78a). Accordingly, the conversion was cast in grave doubt in light of the Gemara (Bechorot 30b) that forbids admitting a convert who accepts all of the Torah except for even one rabbinic precept. In this situation, the wife implicitly did not accept the prohibition for a Kohen to marry a convert.
  Rav Hoffman writes that the conversion should be discouraged by informing the wife that her son was not Jewish (as she herself was not Jewish). If, though, she would persist in her desire to convert and would express sincere belief in the God of Israel, the <i>geirut </i>may proceed. Rav Hoffman suggests two approaches to overcome the obstacle of her lack of acceptance of the prohibition to a Kohen. First, he argues that the Gemara forbids accepting a <i>ger</i> only if he explicitly states his rejection of a particular mitzvah. In the case in question, the woman did not make any such declaration.
  Secondly, Rav Hoffman argues that the Gemara prohibits incomplete acceptance of mitzvot only when the conversion is conducted purely for for the sake of the convert. In such an instance, it is better that the convert not become Jewish than become Jewish and violate any part of Jewish law. However, if the <i>geirut</i> is performed for the sake of the Jewish mate, to avoid the severe sin for him to be with a <i>nochrit</i>, then the Gemara’s concern is not relevant, since the <i>beit din</i> acts in the interest of the convert’s partner. Rav Hoffman concludes that this reasoning applies only if the couple will observe the laws of <i>niddah</i>; otherwise, the conversion does not serve the spiritual interest of the husband.
  Most <i>poskim</i>, however, do not accept Rav Hoffman’s ruling. Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> E.H. 2:4) writes, “In my humble opinion, I do not see any room to permit” such a conversion. Rav Yitzchak Herzog (<i>Teshuvot Heichal Yitzchak</i> E.H. 1:19) and Rav Ovadia Yosef (<i>Teshuvot Yabia Omer</i> Y.D. 2:3) also do not accept Rav Hoffman’s ruling. Among their concerns are that an impression would be created that rabbis have permitted a Kohen to marry a convert. When Rav Shlomo Goren relied upon Rav Hoffman’s ruling in a widely publicized case in 1970 (<i>Techumin</i> 23:180-184), his decision was criticized sharply by Rav Yosef Dov Soloveitchik (see <i>Nora’ot HaRav</i> 5:56-58).
  Rav Moshe Feinstein’s “Bit of Limmud Zechut”
  Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 1:157) clearly states that if a convert does not intend to observe mitzvot, his conversion is invalid. Rav Moshe does, however, offer “a bit of a Limmud Zechut” (defense) for those Orthodox rabbis who convert individuals who clearly have no intention of observing mitzvot in <i>Teshuvot Igrot Moshe</i> Y.D. 1:160. Rav Moshe suggests that in today’s circumstances, when most Jews do not observe the Torah, many converts perceive non-observance of Halachah to constitute mainstream Jewish practice. They perceive observance of mitzvot as a preferred manner of Jewish living, not as an absolute requirement.
  In such a situation, the convert may be compared to the Gemara’s case of one who converted amongst non-Jews and was not informed about the mitzvot yet was considered to be a full-fledged Jew. In today’s environment, it is as if the convert was not informed of the mitzvot, since many converts do not accept what they are taught about the obligation of mitzvot.
  Rav Moshe Feinstein does not endorse such conversions. Rather he presents this reasoning “so that they (the rabbis involved in such conversions) should not be considered worse than uneducated.” Interestingly, Rav Moshe Feinstein does not disqualify these rabbis from serving as <i>dayanim</i> due to their lenient approach to conversion. On the other hand, he does not endorse or recognize such lenient conversions. Similarly, I recall that Rav Yosef Dov Soloveitchik presented30<i class="footnote">In a shiur delivered at Yeshiva University.</i> a bit of a <i>limmud zechut</i> for those who adopt the lenient approach to <i>geirut</i>, based on the aforementioned Rashi to Shabbat 31a. However, Rav Soloveitchik did not validate such conversions.
  This contrasts sharply with the approach of Rav Moshe Shternbuch (<i>Teshuvot V’hanhago</i>t 4:230) who classifies rabbis who adopt the lenient approach to conversion as disqualified from <i>dayanut</i>. Rav Shternbuch goes as far to suggest that even if such rabbis conduct a conversion where the convert sincerely commits to Torah observance and belief, the conversion is invalid due to the disqualification of the rabbis. This approach, though, seems difficult, since those who follow the lenient approach do have a few <i>poskim</i> on whom to rely.
  Conclusion
  The consensus opinion amongst <i>poskim</i> is that <i>kabbalat mitzvot</i> is an indispensable component of <i>geirut</i>. Hence, the GPS document introduced by the RCA should not be considered as a “new stringency” but rather reflecting the mainstream halachic approach endorsed by the consensus of <i>poskim </i>of the past hundred years. The GPS simply creates a system that supports converts who are sincerely committed to Torah life in their quest to have their conversions recognized by mainstream Orthodox rabbis throughout the world.
  
  The Ger Katan Controversy
  
  Introduction
  Another aspect of the current <i>geirut</i> controversies is the intense debate concerning converting non-Jewish children whose adoptive parents do not observe Halachah. There has been much discussion about this issue in the Jewish media recently, and we shall seek as to shed more light on this emotionally charged issue. This question has emerged as particularly relevant in an age when Jewish children are rarely available for adoption and almost all adoptions involve non-Jewish children.
  Background
  The Gemara (Ketubot 11a) presents the rule that a minor can be converted by a <i>beit din</i> even though the child does not consent to the conversion. 31<i class="footnote">Even if the child expresses his or her consent, the consent is not meaningful due to the child’s immaturity; see, for example, Mishnah <i>Machshirin</i> 6:1.</i> Rashi (ad. loc. s.v. <i>Al Da’at</i>) explains that “The Beit Din becomes like a father to the child, and the child converts by means of them.” The Gemara explains that the <i>beit din</i> is empowered to convert the child since it is conferring a benefit to the child. Halachah recognizes such procedures due to the principle of “<i>zachin leadam shelo befanav”, </i>one may bestow a benefit upon another even not in the latter’s presence (and even without receiving his explicit consent).
  The Gemara limits <i>beit din</i>’s authority to convert someone in this manner to a minor. An adult cannot be converted against his will, as it is not considered a benefit (<i>zechut</i>) to him. The Gemara explains that it is a hardship for an adult to convert and become accustomed to a life of Torah observance once he has been accustomed to non-observance. A child is not disadvantaged in this regard, and thus conferring Jewish status upon him is considered a benefit.
  The Gemara notes that when the child reaches majority, he has the opportunity to renounce his Jewish identity. The Gemara concludes, though, that once the child reaches the age of majority and does not immediately renounce his conversion, he no longer enjoys the right to do so.32<i class="footnote">For details on how this is implemented in practice, see the Geirut Policies and Standards (GPS) issued by the Rabbinical Council of America together with its affiliated Beth Din of America (available at the RCA’s website, www.rabbis.org). In short, the RCA document asserts that a formal acceptance of miztvot before a <i>beit din</i> is not required when the child reaches bar/bat mitzvah age “in accordance with time honored practice.” Rather, as long as the child knows that he was converted and that he has the right to renounce his conversion, his continued observance of Jewish law suffices. For further discussion and alternate opinions, see <i>Encyclopedia Talmudit</i> (6:448-449) and Rav Gedalia Felder’s <i>Nachalat Tzvi</i> (1:25-28). </i>
  <i>Tosafot</i>’s Question
  <i>Tosafot</i> (ad. loc. s.v. <i>Matbilin</i>) pose a very basic question on the entire concept of converting a minor. Assuming that the principle of <i>zachin</i> operates based on viewing the one conferring the benefit as the presumptive <i>sheliac</i>h (agent) of the beneficiary,33<i class="footnote">The <i>Ran</i> (Kiddushin 16b in the <i>Rif</i>’s pages) discusses at length how the principle of <i>zachin </i>relates to <i>shelichut</i>, </i> how <i>beit din</i> can confer a <i>zechut</i> on a child if the institution of <i>shelichut</i> (agency) does not apply to a minor <i>(Bava Metzia</i> 71b)?
  <i>Tosafot</i>’s final answer (also see <i>Tosafot</i> Sanhedrin 68b s.v. <i>Katan</i> for further discussion) is that the exclusion of a minor from <i>shelichut</i> applies only where it is somewhat questionable as to whether one is truly conferring a benefit. However, bestowing Jewish identity is a pure and unadulterated benefit (<i>zechut gamur</i>).
  Adoption by Non-Observant Parents – The Strict View
  A major debate emerged in the nineteenth and twentieth centuries as to whether Halachah authorizes a <i>beit din</i> to convert a child that is adopted by non-observant couple. The question is whether <i>beit din</i> is considered to be conferring a benefit to a child in such a situation, since the child will be raised in an environment where Jewish law is not honored. Therefore, the child most likely will emerge as an adult who will routinely violate Jewish law.
  Rav Itzeleh Ponivizher (<i>Teshuvot Zeicher Yitzchak</i> 2) rules that conversion of a minor in such circumstances is invalid. He writes, “Since we know that he certainly will violate all of the Torah’s laws when he will be raised in such a home, it is not a benefit.” The <i>Teshuvot Chavatzelet Hasharon</i> (Y.D. 1:75) similarly rules that “Since it is clear that he will violate all of the Torah based on the way his adoptive parents will raise him, it is not a benefit.” Rav Avraham Yitzchak Kook (<i>Teshuvot Da’at Kohen</i> 147) adopts the strictest stand and argues that <i>beit din</i> is considered to be conferring a benefit “only if we know that the child will observe the Torah as an adult.”
  Indeed, a non-Jew who observes the seven Noahide mitzvot34<i class="footnote">The list of and discussion of these mitzvot can be found in Masechet Sanhedrin 56a-59b.</i> is rewarded with a share in the world to come, but if a non-Jew converts and fails to observe the Torah, Hashem will hold him accountable for his failing to observe the 613 mitzvot (Rambam <i>Hilchot Issurei Biah</i> 14:2 and <i>Hilchot Melachim</i> 8:11).
  We should note that there seems to be a significant difference between Rav Kook’s approach and that of the <i>Zeicher Yitzchak</i> and <i>Chavatzelet HaSharon</i>. The latter seem to disqualify a conversion only if it seems clear that the child will most likely violate all of the Torah’s laws, whereas Rav Kook requires that it be clear that the child will most likely observe Torah law.
  Adoption by Non-Observant Parents – the Lenient View
  On the other hand, other <i>poskim </i>believe it is preferable to be even a non-observant Jew than to be a <i>nochri</i>. The <i>Teshuvot Beit Yitzchak</i> (Y.D. 2:100:11; see also E.H. 69) writes, “Nonetheless, it is preferable to join the Jewish people even though he will be punished [for violating Torah law], since all Jews have a share in the world to come and it is a great <i>zechut</i> for him even though he will violate a few Torah laws.” Rav Chaim Ozer Grodzinsky (<i>Teshuvot Achiezer</i> 3:28) subscribes to this view as well.
  We should note, however, that there does not seem to be such a wide gap between the <i>Zeicher Yitzchak</i> and the <i>Chavatzelet HaSharon</i> on one hand and the <i>Beit Yitzchak</i> on the other, as the former disqualify a conversion in a case where it is clear that the child will violate all of the Torah’s rules and <i>Teshuvot Beit Yitzchak</i> seems to be lenient only when it appears that the child will violate “a few” of the Torah’s laws.
  Rav Moshe Feinstein – A Compromise View
  Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> E.H. 4:26) adopts a compromise approach to this issue. He is inclined to the lenient view since “[Even] wicked Jews have Kedushat Yisrael, and the Mitzvot they perform are considered <i>mitzvot</i> and the sins they perform are for them like <i>shogeig</i> (done as a result of negligence).”35<i class="footnote">They are simply following in the path in which they were raised; see Rambam <i>Hilchot Mamrim</i> 3:3 and Ramban <i>BeMidbar</i> 15:22; see, however, <i>Kovetz Teshuvot</i> 1:103 for Rav Yosef Shalom Eliashiv’s critique of Rav Moshe’s point.</i> Elsewhere, though, Rav Moshe clarifies that in practice this question is unresolved (<i>Dibrot Moshe Shabbat</i> 84 comment 11). Thus, Rav Moshe would appear to regard such a child as a questionable Jew, possibly Jewish and possibly non-Jewish. Rav Yona Reiss, former director of the Beth Din of America, reported at the 2007 convention of the RCA that the Israeli Chief Rabbinate adopts this approach as well.
  Rav Moshe does allow a conversion in a situation where it is “<i>matzui</i>” (likely) that the child will emerge as an observant adult. He specifically permits converting a child if the child will receive a Torah education from fully observant teachers even if the adoptive parents are non-observant. He reasons that because in such circumstances it is likely that the child will grow up to be a Torah observant adult, “It is certainly a Zechut” to be brought into such a situation.
  Rav Yosef Adler and Rav Haskel Lookstein (as well as many others) report that Rav Yosef Dov Soloveitchik also considered it a <i>zechut</i> if the non-observant parents commit to providing the child with a yeshiva education. Rav Yisrael Rozen (<i>Techumin</i> 20:249-250) suggests this compromise as well, but he insists that Jewish education does not suffice if the child will be raised by a non-Jewish parent. We should note that the aforementioned <i>Zeicher Yitzchak</i> and <i>Chavatzelet Hasharon</i> also would appear to accept this approach, since in such circumstances it is not clear that the child will grow up to violate all of the Torah. Rav Kook, however, seemingly would not accept this compromise, as he requires that it be clear that the child will fulfill Mitzvot when he reaches adulthood.
  Conclusion
  In 2007, the RCA in conjunction with the Israeli Chief Rabbinate established a set of guidelines for converting a child, set forth in the aforementioned GPS document. The standard is that the child must be raised in circumstances where it is “likely” that he will observe mitzvot when he reaches adulthood. The requirements include that the child receive twelve years of Orthodox Jewish education, that the adoptive parents fully observe kashrut, have a positive attitude to full observance of mitzvot and that, at minimum, there be “significant observance of Shabbat.” The RCA and Beth Din of America consider the wide variety of opinions that exist among the <i>poskim</i> and seek to insure that <i>geirut</i> of a child can be conducted at a standard that can be accepted by all.
  
  Nullification of a Conversion
  
  In 2007, the State of Israel <i>beit din</i> of Ashdod nullified a conversion that had occurred many years earlier, arguing that the <i>giyoret</i> in question had been only partially observant of mitzvot since the conversion. The woman appealed to the Israeli Rabbinic Court of Appeals,36<i class="footnote">For a discussion of this institution, see <i>Gray Matter</i> 3:246-248.</i> where two great <i>dayanim</i>, Rav Shlomo Dichovsky and Rav Avraham Sherman, disagreed as to whether to uphold or reject the lower <i>beit din</i>’s ruling.
  Before examining this debate, we should clarify that there does exist a concept of <i>bittul geirut</i> (nullification of conversion) in Halachah.37<i class="footnote">The subject of <i>bittul geirut</i> is incredibly sensitive. In 1972, when Rav Shlomo Goren invalidated the conversion of the first husband of a woman who remarried without a <i>get </i>in order to spare the children from her second marriage from being classified as <i>mamzeirim</i>, many Rabbanim expressed severe dissent. Rav Yosef Shalom Eliashiv even resigned from the Rabbinic Court of Appeals as a result. </i> A State of Israel <i>beit din</i> known for its fairly lenient approach to conversion once nullified a conversion that had occurred several years previously.38<i class="footnote">This ruling is recorded in <i>Techumin</i> 23:186-202.</i> A woman and her three-year-old child applied for conversion. Upon receiving enthusiastic endorsements of the woman’s complete mitzvah observance and dedication to her daughter’s Torah education, the <i>beit din</i> accepted their credentials and converted them.
  However, the Israeli government’s Interior Ministry discovered that the woman both before and after the conversion maintained (for a number of years) an ongoing relationship with a <i>nochri</i> gentleman, which included physical relations. Upon this revelation (of which, of course, the <i>beit din</i> that had approved the conversion was unaware), the Ministry submitted a request to the <i>beit din</i> to nullify the conversion. This nullification would not only have potential religious consequences, but also would result in the expulsion of the woman and her daughter from Israel, since they received automatic Israeli citizenship on the basis of their status as Jews. We should clarify, though, that the gentleman, a foreign worker in Israel, had attempted to enter a conversion program but was rejected due to his lack of Israeli citizenship. He could not convert in the country of which he was a citizen (Turkey) because there was no conversion study program in that country. We should also note that the linkage between conversion and Israeli citizenship makes conversion in Israel much more complex and controversial than outside of Israel.
  The potential basis for nullifying the <i>geirut</i> was the woman’s apparent flawed <i>kabbalat mitzvot</i> and the fact that the <i>beit din</i>’s approval for her conversion had been based on her apparently deceptive presentation of herself as fully observant of Torah law39<i class="footnote">This case highlights the need to conduct a thorough and not cursory investigation before recommending a candidate for conversion to a <i>beit din</i>. </i>.
  The Minority Opinion
  One <i>dayan</i> on the <i>beit din</i>, Rav David Bass, ruled that although he certainly would not have approved the conversion had he known of her relationship with this individual, the conversion should not be nullified <i>b’diavad</i> on the basis of the discovery. He combines five twentieth-century rulings as precedent for his approach.
  He begins by citing Rav Ben-Zion Uzziel’s approach (<i>Teshuvot Mishpitei Uzziel</i> 2: Y.D. 58 and <i>Piskei Uzziel</i> number 65) that <i>kabbalat miztvot</i> is not an indispensable component of the conversion process. Rav Bass notes that the consensus opinion rejects this approach, but he argues that it should be considered as an adjunct to a lenient ruling not to nullify the conversion.
  Next, he cites Rav David Zvi Hoffman’s aforecited ruling (<i>Teshuvot Melamed Leho’il</i> 3:8) that a <i>beit din</i> is forbidden to accept a candidate for conversion only if he/she explicitly rejects a mitzvah. However, as long as such an explicit statement is not made, the <i>beit din</i> may perform the conversion even if it is obvious that he/she will violate one of the commandments.
  The third precedent is Rav Moshe Feinstein’s argument (<i>Teshuvot Igrot Moshe</i> Y.D. 3:106) that a convert who is willing to accept mitzvot but is not willing to accept proper standards of modest dress is not necessarily rejecting a mitzvah if she is willing to follow the (less than ideal) standards observed by the observant women she sees in her community. In such a situation, she does not internalize the standards espoused by the rabbis, since it is not observed by the observant women she sees. She perceives that the rabbis are trying to impose unnecessary stringency upon her. Rav Moshe suggests that this attitude does not constitute a rejection of a mitzvah.
  Rav Bass argues that since the woman in question sees many Jewish women in her neighborhood who live with non-Jewish partners, she does not perceive living with a non-Jewish man as truly forbidden according to Jewish Law. Rav Bass surmises that the woman might be thinking that just as she converted, her partner will convert as well.
  The fourth precedent he cites is a ruling of Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 3:108). A woman had been warned (before conversion) that she would lose her job had she failed to appear for work on the second day of <i>Shavu’ot</i>. The woman submitted to the pressure and went to work; years later, she asked Rav Feinstein if her foreknowledge of this violation invalidated her conversion.
  Rav Moshe validated her conversion. He reasons that Halachah does not require a convert to be committed to observe mitzvot even in the most stressful of situations. For example, Rav Moshe argues that we can accept a candidate for conversion even if he/she is not committed to surrender their lives in situations where Halachah demands such sacrifice. Similarly, Rav Moshe argues that Halachah does not demand from the convert that he be willing to forego his means of livelihood in order to observe Halachah.
  Rav Bass argues that for the woman in question, the requirement to abandon her non-Jewish partner was as difficult as demanding that she be willing to forego her employment. A lack of such intense dedication to mitzvah observance does not invalidate her conversion.
  The fifth precedent is a ruling from Rav Avraham Yitzchak Kook (<i>Teshuvot Da’at Kohen</i> 153), who was asked regarding a case in Egypt where a convert was improperly withholding a <i>get </i>from his wife. The local rabbis wished to invalidate the conversion on the basis of his failure to observe the miztvot, thereby permitting the wife to remarry without a <i>get</i>. Rav Kook rejected this approach, arguing:
  As long as there was a proper articulation of acceptance of Mitzvot, one can say that we disregard any thoughts the person had when making the declaration. Even if Eliyahu HaNavi will come and testify that the convert did not intend to observe the Mitzvot, one’s thoughts are a totally irrelevant consideration [<i>devarim she’beleiv einam devarim</i> - Kiddushin 49b].
  Similarly, Rav Bass argues that the fact that the woman in question intended to continue to live with her <i>nochri</i> partner does not invalidate her acceptance of the Torah.
  The Majority Opinion
  Rav Yisrael Rozen, in articulating the majority opinion of the <i>beit din</i>, invalidated the conversion. Interestingly, Rav Rozen does not consider Rav Uzziel’s ruling even as an adjunct consideration in a lenient ruling. Moreover, Rav Rozen argues that the fact that this woman continued to live with a non-Jew impinges on the very essence of conversion - joining the Jewish people.
  He views as absurd the comparison to a woman who was not committed to modest dress beyond that which her otherwise observant neighbors practiced. One cannot compare relatively minor laxity in terms of one (albeit very important) area of Halachah to the blatant violation of one of the most basic aspects of Jewish life.
  In defense of Rav Bass, one might argue that despite the astounding contradiction, some people will conduct most of their lives as an observant Jews and yet live with a <i>nochri</i> partner. Nonetheless, Rav Rozen argues that there must be a limit to the degree of flexibility a <i>beit din</i> can exercise. He writes, “This case is virtually the simplest scenario that requires a Beit Din nullify a conversion. It is difficult for me to imagine a more extreme situation.”
  Moreover, the woman blatantly lied to the <i>beit din</i> when it inquired as to her personal relationships. Her deception throws the validity of the conversion into doubt, since the presence and consent of <i>beit din</i> is a requirement for <i>geirut</i> (Yevamot 46b and Shulchan Aruch Y.D. 268:3). Had the <i>beit din</i> known of this relationship, it never would have administered the conversion.
  Some clarification is needed in regard to the concept and application of <i>devarim she’beleiv einam devarim</i>. This principle is articulated in the following case recorded by the Gemara (Kiddushin 49b): A certain individual sold his property with the intention to move to Eretz Yisrael. However, he did not specifically condition the sale upon his successful move to Eretz Yisrael. When, afterwards, he was unable to move to Eretz Yisrael, he was not entitled to demand the right to repurchase the house, even though he had sold the house with the intention to move to Eretz Yisrael. The reason for this, states the Gemara, is that <i>devarim she’beleiv einam devarim</i>, unarticulated thoughts carry no halachic significance. Thus, it would appear, at first glance, that we should ignore a convert’s unarticulated intention to routinely violate Jewish Law, as long as the convert declared before <i>beit din</i> his commitment to fully observe Jewish Law.
  <i>Tosafot</i> (ad. loc. s.v. <i>Devarim She’beleiv Einam Devarim</i>), however, clarify that there are exceptional situations in which the parties’ intentions are so clear that we follow those intentions, even if the parties do not explicitly state them. <i>Tosafot</i> state that in those situations, “we assess that this was his intention.” Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 1:157 and 159) applies <i>Tosafot</i> to a situation in which it is nearly clear that a convert does not intend to observe Torah law. In such a case, the articulated <i>kabbalat mitzvot</i> is meaningless, and the conversion is invalid. Rav Moshe’s example of such a conversion is a woman who converts to marry a Jewish man who does not observe Torah law. Indeed, mainstream rabbinic courts will perform a conversion in such a situation only if the intended Jewish spouse makes concrete and sustained efforts to lead a fully observant Torah lifestyle.
  The 2008 Debate
  We now turn our attention to the great debate between Rav Shlomo Dichovsky and Rav Avraham Sherman that erupted in 2008 reagrding <i>bittul geirut</i>. This debate impacts not only the Jewish status of a mother and her children in the Ashdod area, but also thousands of individuals who have converted through the special conversion courts established by the Israeli Chief Rabbinate. Thus, we begin our discussion of this matter with full awareness of the complexities and the variety of opinions regarding an issue that has great impact on generations to come.
  The Special Conversion Courts
  The great immigration from Russia to Israel beginning in the late 1980s has given rise to an enormous social and halachic problem. A great number of these immigrants are either not Jewish or only possibly Jewish. They were admitted to the country under the Law of Return, which grants automatic Israeli citizenship even to one who is married to a Jew or has only one Jewish great-grandparent. The situation of these immigrants is particularly difficult given that Israel is a Jewish State; therefore, they wished to convert to Judaism. Many also regarded themselves, out of sheer ignorance, as “Jewish” before they moved to Israel and very much wanted to be treated as Jewish by mainstream Israeli society. However, most of these people did not wish to be observant of Torah law, which creates a serious halachic problem.
  In an attempt to ameliorate this difficult situation, the Israeli Chief Rabbinate established special <i>batei din</i> for conversion. It is reported that the goal of these courts was to facilitate large scale conversion of non-Jewish citizens of the State of Israel by somewhat relaxing the requirements of <i>kabbalat mitzvot</i>.
  The Ashdod Case of 2007
  It is reported that a convert and her Jewish-born husband were divorced according to Halachah but were denied a <i>beit din</i> ruling to that effect. The <i>beit din</i> is reported to have ruled that it was highly questionable if the woman (and her children) was Jewish, and as such, she could not be granted any document testifying to a Jewish divorce. The <i>beit din</i> went as far as to call into question all of the conversions administered by the special conversion authority due to concern for lack of <i>kabbalat mitzvot</i> of the majority of those whom they converted. The ruling went even further, arguing that the <i>dayanim</i> who sat on these rabbinic courts were disqualified due to their adoption of a lenient standard regarding <i>kabbalat mitzvot</i>. Thus, the Ashdod <i>beit din</i> called into question the validity of a conversion even where the individual in fact did commit to a Torah-observant life and lived as an observant Jew since the conversion. The basis of this ruling is the requirement for a <i>beit din</i> to administer a conversion (Yevamot 46b and Shulchan Aruch 368:3). A <i>beit din</i> consisting of disqualified judges, though, does not constitute a <i>beit din</i>.
  Rav Dichovsky’s Approach
  The woman appealed the Ashdod <i>beit din</i>’s ruling to the Rabbinic Court of Appeals in Jerusalem. Rav Shlomo Dichovsky, a long time member of this special <i>beit din</i>, ruled in a number cases such as this40<i class="footnote">One such ruling appears in <i>Techumin</i> 29:267-280.</i> that although he would not necessarily have administered many of these conversions, he cannot nullify the conversions <i>b’diavad</i>. In this case, as well, Rav Dichovsky validated the conversion. While he agrees that <i>kabbalat mitzvot</i> constitutes an absolute requirement, Rav Dichovsky focuses on the fact that it is quite possible that during the actual moment of conversion, the immersion in the mikvah, the convert sincerely accepted the yoke of Torah, even though he did not observe mitzvot either before or after the conversion. Rav Dichovsky writes:
  Anyone who has ever been present at at a conversion is aware that it is a very emotional experience for all of those in attendance, especially, of course, for the convert. It is very likely that in that emotion of the moment of immersion, she indeed was fully committed to Torah observance and only later veered from the [Torah] path.
  Rav Dichovsky (following Rav Kook, <i>Teshuvot Da’at Kohen</i> 153) even proves his argument from the fact that the entire Jewish people converted at Mount Sinai, as stated by the Rambam (<i>Hilchot Issurei Bi’ah</i> 13:1-3). This conversion was recognized by none other than Hashem, even though the vast majority of the people worshipped the <i>Eigel HaZahav</i> only forty days after that great moment!
  Rav Avraham Sherman strongly rejects Rav Dichovsky’s approach. He argues:
  The test of Kabbalat Mitzvot is not measured by that moment in which she makes the oral declaration that she accepts the Mitzvot, as Rav Dichovsky states. The true test is the factual circumstances, the lifestyle of the convert before the moment of immersion. Her shared life with a man who is removed from Torah and Mitzvah observance and her life in a society that does not observe Torah and Mitzvot reflect what occurred at the moment of acceptance of Mitzvot. There is no logic and one cannot even consider removing that specific moment from the continuum of a secular lifestyle devoid of a religious life of Torah and Mitzvot and declare that at that moment there was a revolutionary movement of entering the Jewish religion, its principles, beliefs, and Mitzvot when a moment after the conversion there is no expression and actualization of the religious movement that occurred, as it were, in her heart.
  Rav Moshe Feinstein’s Ruling
  Interestingly, Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> E.H. 3:4) grappled with this issue in a 1968 ruling regarding a case that occurred in Winnipeg, Canada. A non-Jewish man converted, apparently under the auspices of an Orthodox rabbi, and married a Jewish woman in an ostensibly Orthodox ceremony. The rabbi, however, did not require a <i>brit milah</i>, since the man already had been circumcised. In such circumstances, it is a matter of dispute as to whether ritual removal of blood (<i>hatafat dam brit</i>) is required (see <i>Tosafot</i> Shabbat 135a s.v. <i>Lo Nechleku</i>). This dispute remains unresolved, and as such, <i>hatafat dam brit</i> is done out of doubt (Shulchan Aruch Y.D. 268:1). The couple divorced civilly, whereupon the husband disappeared, leaving his wife without a <i>get</i>. Since the local rabbis felt that it was impossible to obtain a <i>get</i> for the wife, they asked Rav Feinstein if it was possible to invalidate the marriage by declaring the conversion null and void due to the man’s lack of <i>kabbalat mitzvot</i>.
  Rav Moshe writes that if an Orthodox rabbi administered the conversion one should assume that he properly performed the ceremony in accordance with Halachah, even though the fact that he did not require <i>hatafat dam brit</i> reflects poorly on his fidelity to Halachah. Nonetheless, since in this case “We saw that he did not refrain from the Torah’s prohibitions even one day,” it indicates that he never accepted the observance of Torah and mitzvot. Rav Moshe, though, raises the possibility that perhaps at the moment of immersion he sincerely accepted mitzvot (similar to Rav Dichovsky’s assertion).
  Rav Moshe seriously considers this as a possibility, as we find cases in Halachah where we are concerned that a person experienced an immediate change of ideology. Rav Moshe cites the ruling of the Shach (Y.D. 1:8) validating the <i>kashrut</i> of an animal slaughtered by a <i>shocheit</i> (slaughterer) who converted to another religion later that very day. The Shach assumes that the fact that he converted later that day does not reflect that the slaughterer was an apostate at the time of the slaughter.41<i class="footnote">A slaughter performed by one who professes another religion is invalid; see Chullin 5a.</i> Rav Moshe, however, notes that the Shach rules accordingly only because before the slaughter, the <i>shocheit</i> was a Torah-observant Jew. Thus, in a conflict between the <i>chazakah</i> (status quo) prior to the slaughter and after the slaughter, the Shach rules we follow the prior <i>chazakah</i> (<i>chazakah d’mei’ikara</i>).
  Accordingly, Rav Moshe suggests that since the husband was not observant either before or after the conversion one may assume that at the time of conversion he remained the same as he was before and after that moment and that it is obvious that the husband’s acceptance was insincere and therefore invalid. Rav Moshe is inclined to invalidate the conversion, but in practice, Rav Moshe permitted the woman in question to remarry without a <i>get</i> only due to a <i>s’feik s’feika</i>, a double doubt. Perhaps the conversion is invalid due his insincere acceptance of mitzvot, and perhaps the conversion is invalid due to the failure to perform <i>hatafat dam brit</i>. Most relevant to our discussion is that Rav Moshe considers Rav Dichovsky’s argument and regards it as at least somewhat of a possibility. Thus, Rav Moshe resolves the argument between Rav Dichovsky and Rav Sherman with an assertion that there is a bit of merit to Rav Dichovsky’s argument.
  Invalidating the Rabbinic Courts
  However, Rav Sherman’s argument invalidating the members of the special conversion <i>batei din</i> appears difficult. Rav Sherman does not cite Rav Moshe Feisntein’s “limited justification” of those rabbis who adopt a lenient approach to <i>kabbalat mitzvot</i> (<i>Teshuvot Igrot Moshe</i> Y.D. 1:160). Although Rav Moshe does not endorse the lenient approach, he does not rule that those rabbis who adopt the lenient approach are thereby disqualified from serving as <i>dayanim</i>. Moreover, Rav Moshe (<i>Teshuvot Igrot Moshe</i> Y.D. 1:159) refrains from counseling a practicing rabbi to spurn the lenient approach to <i>kabbalat mitzvot</i>: “Since there are many rabbis who accept converts such as these, and thus I do not pronounce prohibitions [to perform such a conversion]….You should use your best judgment on how to act in this situation.”
  Rav Moshe understood the pressure faced by Orthodox rabbis serving less-than-Orthodox congregants, and while he does not endorse converting someone who in all likelihood will not observe mitzvot, he does not condemn it either. Orthodox rabbis are faced with the same quandary as to how to service the majority of non-observant Jews in the State of Israel. While there are certainly different approaches to this issue and the majority opinion favors the strict approach, those rabbis who adopt the lenient approach are following a legitimate minority opinion in Halachah and should not be disqualified from serving as <i>dayanim</i>.
  Moreover, even Rav Shlomo Zalman Auerbach (<i>Teshuvot Minchat Shlomo</i> 1:35), who strongly advocates the strict approach and criticizes those who adopt the lenient approach,42<i class="footnote">Rav Shlomo Zalman contends that those who are lenient are in violation of the prohibition to cause others to sin (<i>lifnei iveir</i>), because according to what they believe to be the Halachah, they are putting the new converts into situations in which they certainly will violate many Halachot.</i> does not state that those who adopt the lenient approach are invalidated as <i>dayanim</i>. Moreover, the <i>dayanim</i> of the special conversion courts are following in the footsteps of Rav Ben-Zion Uzziel, who famously advocated a lenient approach to conversions. It is shocking to find Rav Sherman condemning the rabbis of the special conversion courts as rejecting “all Halachic authorities”.43<i class="footnote">Rav Sherman himself considers Rav Uzziel as a legitimate halachic authority, as he cites him on p. 43 of his lengthy responsum.</i> It would be more accurate to state that they reject “nearly all” <i>poskim</i>. Rav Moshe Shternbuch (<i>Teshuvot V’Hanhagot</i> 1:611 and 4:230) also does not rule decisively that the lenient <i>dayanim</i> are disqualified, for “They believe they are performing a Mitzvah.” Indeed, Rav Gedalia Axelrod, a <i>dayan</i> in Haifa who adopts a very strict stance towards conversion standards44<i class="footnote">See his essay in <i>Shurat HaDin</i> vol. 3.</i> rules that the lenient rabbis are not disqualified.
  Conclusion
  Mainstream Halachah recognizes a conversion only if the convert sincerely intended to lead a fully observant Torah lifestyle. A conversion conducted by Orthodox rabbis who follow the minority opinion for a convert who did not observe Torah either before or after conversion is regarded by Rav Moshe Feinstein as <i>safeik</i>, possibly invalid (also see <i>Teshuvot Igrot Moshe</i> Y.D. 3:109:1). Therefore, one who underwent such a conversion must reconvert when he is ready to fully observe Torah law. On the other hand, if someone was married to such a convert, the marriage can be dissolved only with a <i>get</i>.
  Conversions performed by Orthodox rabbis who often adopt the lenient approach conversion are not automatically disqualified. If a convert converts under the auspices of a <i>beit din</i> consisting of rabbis who adopt the lenient approach, but the convert observed Torah before and after the conversion, Rav Moshe Feinstein deems the conversion as valid. The practice of rabbis in the United States seems to follow this ruling of Rav Moshe.
  
  Israel
  
  Torturing in Order to Save Lives
  
  An issue of great importance facing Medinat Yisrael is the halachic propriety of torturing someone in order to extract information that will save innocent lives. On one hand, Jews have been victims of torture throughout the generations, and we try our best to avoid doing to others what we so much did not want done to us. On the other hand, the extreme and ruthless nature of contemporary terrorism compels Medinat Yisrael to consider torture as an option. A proper balance needs to be struck in dealing with this delicate issue.
  Israel’s secular Supreme Court adopts an extreme approach to this issue and fails to chart a balanced approach to this challenging issue. Its ruling is not in harmony with Halachah or, for that matter, with the rulings of civil courts in any other country. We shall attempt to demonstrate that Halachah demands a different attitude towards this delicate issue.
  The September 1999 Ruling of the Israeli Supreme Court
  On September 6, 1999, the Israeli Supreme Court (<i>Public Committee against Torture in Israel v. State of Israel and General Security Service</i>, HCJ 5100/94) prohibited torture even to elicit information that could prevent an imminent terrorist attack. The decision, written by then-president of the Supreme Court Aharon Barak,
  states that the prohibition of torturing is "absolute" as a matter of domestic law, which the court notes is "in accord with international treaties, to which Israel is a signatory . . ." (Opinion, paragraph 23) The decision declares that "[t]here are no exceptions . . ." (<i>ibid</i>.).
  The Innocent Passive<i> Rodeif</i>
  The Halachah does not regard the prohibition to torture as absolute. An individual who refrains from revealing information that may save lives is classified as a <i>rodeif</i>, one who is in the process of trying to kill someone and must be immobilized either by wounding or, if necessary, even killing him (Rambam <i>Hilchot Rotzeich</i> 1:13). One might counter that one is considered a <i>rodeif </i>only if he is engaged in active pursuit of a victim. Rav J. David Bleich (<i>Tradition</i>, Winter 2006 pp.102-105) demonstrates, however, that Halachah regards one who endangers lives as a <i>rodeif</i>, even if he is entirely passive.
  One proof may be drawn from a ruling of the Rama (Y.D. 157:1) regarding a situation wherein a group of Jews is surrounded by thugs who demand that the group either hand over a specific individual or allow itself to be killed in its entirety. The Rama rules that it is permissible to hand over that individual even though he is not guilty of any wrongdoing. He does, however, acknowledge a dissenting opinion that it is forbidden to hand an individual to the criminals unless that named person is guilty of a capital crime.45<i class="footnote">The Taz (ad. loc. 7) rules in accordance with the dissenting opinion cited in the Rama.</i>
  The dissenting opinion appears to be far more reasonable than the primary opinion presented by the Rama. How can Halachah countenance handing over an innocent individual to face death at the hands of evildoers? Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 2:60) explains that the named individual is regarded as a <i>rodeif</i>, since his remaining alive threatens the lives of everyone else in the group
  Rav Moshe applies this to the separation of Siamese twins. In the late 1970s, a situation occurred in which attached infant twins eventually would both die if they were not separated. However, separating the twins would kill the weaker of the two babies immediately. Rav Moshe, as explained by Rav J. David Bleich (<i>Tradition</i>, Fall 1996),46<i class="footnote">See our later chapter devoted to this topic.</i> permitted the separation on the basis that the weaker twin is classified as a Rodeif. If Halachah regards this innocent individual as a <i>rodeif</i>, then it certainly categorizes someone who wrongly withholds information that can save lives as a <i>rodeif</i>.
  The Guilty Passive<i> Rodief</i>
  Halachah regards one who immorally fails to act to save lives as a <i>rodeif</i>. The <i>Netziv</i> (<i>Ha’ameik She’eilah</i>, <i>She’ilta</i> 142:9), in justification of the pronouncement of the Jewish people (<i>Shofetim</i> 21:5) that anyone who would not join the battle against the enemy would be put to death, explains that those who would not join the war would weaken the resolve of the Jewish soldiers and thereby jeopardize their success. If the Jewish army were to be defeated, the entire people would be at risk. Accordingly, one who would not join the battle would be classified as a <i>rodeif</i>, and it would be permitted to kill him. One who inappropriately conceals life saving information is similarly regarded as a <i>rodeif</i>, since his inaction threatens the lives of others.
  Torturing as Opposed to Killing a<i> Rodeif</i>
  One could potentially respond that Halachah requires us to kill a <i>rodeif </i>but does not permit us to torture him. Basis for this argument could be found in the Gemara’s teaching (Ketubot 33b) that torture is more difficult to tolerate than death. Rav Bleich (<i>ibid</i>. pp. 105-106) responds that Halachah does not always define torture as more serious than death. For example, it does not allow one to violate one of the three cardinal sins that demand martyrdom in order to avoid torture.47<i class="footnote">See <i>Tosafot </i>(Ketubot 33b s.v. <i>Ilmalei</i>).</i> Thus, Halachah does not formally classify torture as worse than death despite the Gemara’s observation that torture can be more difficult to tolerate than death. Thus, in situations where Halachah requires killing a <i>rodeif</i> to save a life, Halachah may also require torturing a <i>rodeif</i>to save a life.
  Coercing Someone to Perform a Mitzvah
  Halachah does not make the fulfillment of <i>mitzvot</i> optional. It mandates coercion (Ketubot 86a), including by means of whipping, of those who refuse to abide by its rules (see, for example, Rambam <i>Sefer Hamitzvot Mitzvah</i> 176).48<i class="footnote">See the interesting debate between the <i>Ketzot</i> and<i> Netivot</i> (C.M. 3:1) regarding who may coerce someone to perform a mitzvah.</i> In fact, a hallmark of the Mashiach is that he will coerce everyone to abide by Torah law (Rambam <i>Hilchot Melachim</i> 11:4). Thus, if a man refuses to place <i>tefillin</i> on his arm and head, <i>beit din</i> is permitted him to force him to do so. Similarly, one may be coerced by any means possible to execute his obligation to rescue the lives of others (Vayikra 19:16).
  Obligations of a<i> Nochri</i>
  A <i>nochri</i> may be killed for failing to run a just society (<i>dinim</i>). The Rambam (<i>Hilchot Melachim</i> 9:14), on this basis, justifies Shimon and Levi’s assassination of all of the males in Shechem (Breishit 34). The Rambam believes that all of the males in the city were guilty of failing to punish those who kidnapped and imprisoned Dinah. The Ramban (Breishit 34:13 and 49:5-6), who disagrees with the Rambam’s evaluation of this episode, does not criticize the Rambam regarding this particular point.49<i class="footnote">For a more thorough discussion of this topic and its halachic implications, see <i>Gray Matter</i> 3:211-223.</i> It seems that he agrees that a legitimate authority may hold a <i>nochri</i> responsible to do whatever is in his power to help the functioning of a just society, which includes insuring that innocent people are not murdered. Thus, a legitimate authority may torture an individual in order to extract information that will insure justice by preventing murder.
  Obligations of a<i> Melech</i>
  The Rambam (<i>Hilchot Rotzei’ach</i> 2:4 and <i>Melachim</i> 4:10) teaches that a king may reach beyond the limits of strict Halachah in order to “destroy the hand of evildoers.” Rav Kook (<i>Teshuvot Mishpat Kohen</i> 144), in an oft-cited comment, rules that if the Jewish people accept the leadership of a certain body, that body partially assumes the status of a king. Rav Kook’s approach has been adopted by many other <i>poskim</i>, including Rav Yitzchak Herzog (<i>Techukah L’Yisrael Al Pi Hatorah</i> 1:152), Rav Ovadia Yosef (<i>Teshuvot Yechave Da’at</i> 5:64), and Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 10:1:14). Rav Waldenberg writes:
  Even in our times, the president, government, and Knesset (despite all of their problems regarding spiritual matters, and thus it is clear that with regard to Torah, any decisions made counter to Torah are invalid) that were chosen by the majority of Jews who reside in their land…are regarded as the king in respect to all national matters.
  Accordingly, the Israeli government is empowered and required by Halachha to take the necessary steps (even beyond that which is permitted by Halachah) to insure the safety of its citizens, including torturing individuals in order to extract information needed to save innocent lives. Thus, even if one were to argue that Halachah forbids torture even to save a life, the Israeli government would be permitted to torture.
  Waging War
  Rav Hershel Schachter told me that torture to elicit critical information to save lives is permissible, since it is a means of properly waging a justified war. In his <i>B’ikvei Hatzon</i> (pp. 206-207), Rav Schachter cites Rav Yaakov Kaminetsky, who maintains that Israel has been in a constant state of war (from a halachic perspective) since the establishment of the state. Rav Yaakov accordingly ruled in 1970 that it was forbidden to ransom the great Rav Yitzchak Hutner, who at that time was being held captive in Jordan by Arab terrorists who had hijacked the flight on which he was a passenger. There was a suggestion to offer a huge sum to ransom Rav Hutner, since <i>Tosafot</i> (Gittin 58a s.v. <i>Kol</i>) permit paying an exorbitant sum to save a great Rav. Rav Yaakov argued that <i>Tosafot</i>’s ruling applies only during peacetime. Since Israel’s ongoing struggle with terrorism constitutes a war, Rav Yaakov ruled, it was forbidden to ransom even one as great as Rav Hutner. Rav Schachter reasons that just as killing enemy soldiers is justified when waging a just war, it is permissible to torture to obtain life-saving information when engaging either terrorists or a more conventional enemy.
  International Law Prohibiting Torture
  Torture is prohibited by international law under the Geneva Convention against Torture, the European Convention on Human Rights, and the United Nations Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. Since Israel has signed these treaties, it is obligated to adhere to them even if they run counter to Halachha (Rambam, <i>Hilchot Melachim</i> 6:3).
  However, Rav Shaul Yisraeli (<i>Amud Hayemini</i> 16) clarifies that Halachah honors international law as it is practiced by civilized nations and not as the law is written.50<i class="footnote">For further discussion of this issue, see Gray Matter 3:217-218.</i> Harvard Law Professor Alan Dershowitz (<i>The Case for Israel</i> ch. 19) writes, “I know of no other Supreme Court decision acknowledging that the restrictions it imposes on interrogation will almost certainly cost the lives of its civilians.” He notes that the United States, England, and France practice torture in order to acquire information to save lives. He specifically mentions the United States Court of Appeals for the Eleventh Circuit (Leon v. Wainwright, 734 F. 2d at 772-773), which at length in dicta51<i class="footnote">“Dicta” refers to those sections of the written opinion of the court that do not consist of the official ruling being handed down.</i> approved the actions of police who tortured an individual until he revealed the location of a kidnapping victim. The court explained:
  We do not by our decision sanction the use of force and coercion by police officers. Yet this case does not represent the typical case of unjustified force. We did not have an act of brutal law enforcement agents trying to obtain a confession in total disregard of the law. This was instead a group of concerned officers acting in a reasonable manner to obtain information they needed in order to protect another individual from bodily harm or death.
  Accordingly, international law does not obligate the Israeli government to refrain from torturing individuals to save innocent lives.
  Certainty
  Rav Bleich (<i>Tradition</i>, Winter 2006 p. 105) permits torture only if it will certainly save lives. He bases this limitation on the rulings of Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> C.M. 2:69) and Rav Chaim Ozer Grodzinsky (<i>Teshuvot Achiezer</i> 3:72), who define a <i>rodeif</i> as one who is “close to certainly” threatening the life of another. However, the Vilna Gaon (C.M. 388:74), and Rav Shmuel Wosner (<i>Teshuvot Sheivet Halevi </i>5:193, based on the <i>Chiddushei HaRan</i> to Sanhedrin 73a) define a person as a <i>rodeif </i>even if there is substantial doubt as to whether he will kill someone. Moreover, we have noted that torture to save lives is permitted due to considerations other than <i>rodeif</i>. Thus, the limitations regarding <i>rodeif</i> are not necessarily applied to torture to save lives.
  We should note, however, that there are those who claim that torture is not effective in saving lives. If compelling evidence were presented to prove this assertion, then Halachah would never sanction engaging in torture. This argument, however, does not seem to have been the motivation behind the decision of the Israeli Supreme Court.
  Conclusion
  The Jewish people are characterized as <i>rachamanim</i> (merciful; see Yevamot 79a). We certainly abhor the use of torture in ordinary circumstances. However, we are required to violate almost every Torah prohibition in order to save lives. Therefore, we may torture individuals to elicit information necessary to save lives.
  However, just as one does not kill a <i>rodeif </i>unless there is no alternative, so too we must not engage in torture unless all other avenues have been pursued. Moreover, it is important for the Israel and other civilized countries to invest in the development of creative means of extracting information that will avoid the need for torture. This is similar to the halachic obligation to take reasonable proactive measures to avoid the necessity to violate Shabbat in order to save lives (see Shulchan Aruch O.C. 248:1 and <i>Gray Matter</i> 2:19-23).52<i class="footnote">Alan Dershowitz’s proposal (<i>Shouting Fire</i> pp. 476-477) that torture be sanctioned to save lives but only after receiving a “torture warrant” from an appropriate oversight body seems to be analogous to requiring a warrant before a policeman fires a weapon. One could imagine situations where obtaining such a warrant would cause delays that might lead to loss of life. This seems parallel to the Shulchan Aruch’s ruling, in regards to violating Shabbat to save lives, that “It is a Mitzvah to violate Shabbat for one who is dangerously ill. Furthermore, one who acts quickly in such circumstances is worthy of praise, whereas one who poses a question [to a rabbi to see if it is permissible to violate Shabbat to preserve life], sheds blood.” </i>
  One could suggest, however, that just as an investigation is conducted after an officer of the law fires his weapon, each case of torture should be followed by a review by an oversight panel that would judge if it was warranted. This could prevent abuse of the permission to torture in order to save lives.
  It also is important to stress that even when torture is permitted, it should not be conducted in an excessive manner. Just as speaking <i>lashon hara</i> (when it is required) is permitted only to the extent that is necessary and any exaggeration is strictly prohibited (<i>Chafetz Chaim Hilchot Rechilut</i> 9 and <i>Hilchot Lashon Hara</i> 10:2), torture is permitted only to the exact extent that is required to save lives.53<i class="footnote">See Devarim 25:3, which specifically admonishes the court official who administers lashes not to hit the individual more than required.</i>
  Nonetheless, the secular Israeli Supreme Court’s ruling outlawing torture even to save lives is a tragic example of misplaced compassion and misguided moral intuition.54<i class="footnote">We should clarify that the court notes that certain physical means are necessary to secure the safety of the interrogator or to conduct the interrogation. For example, some degree of keeping the suspect fatigued or uncomfortable, as well as handcuffing the suspect so that he cannot attack the interrogator, are within the scope of acceptable law enforcement practices (Opinion, paras. 23, 26). But the court finds that Shabach and other techniques at issue transcend the basic need to protect the interrogator and enable him to conduct a reasonable interrogation. These techniques serve to degrade and dehumanize the suspect, as well as to cause unnecessary pain (Opinion, paras. 26-30). The court concludes that under Israeli law as currently constituted (1999), the GSS lacks the legal authority to use such physical means. The court does not, however, rule that Israeli law <i>may</i> not authorize such techniques. To the contrary, the court states, "If the state wishes to enable GSS investigators to utilize physical means in interrogations, it must enact legislation for this purpose" (Opinion, para. 37). In a concluding note, the court emphasizes, "Whether it is appropriate for Israel, in light of its security difficulties, to sanction physical means is an issue that must be decided by the legislative branch, which represents the people. We do not take any stand on this matter at this time" (Opinion, para. 39). In addition, the court does leave open the possibility that an interrogator might avail himself of a “necessity defense” in case of prosecution for torturing someone in order to save lives.</i>
   It is an example of the King Solomon’s warning not to be overly righteous (<i>Kohelet</i> 7:16). The Midrash (<i>Kohelet Rabbah</i> 7:1:16) commenting on this verse, writes, “He who has mercy on the cruel is cruel to the merciful.” We hope that the State of Israel reverses this unjust and unwise decision by legislative or other legal means.
  
  Disobeying Orders in Tzahal (Israel Defense Forces)
  
  If the Israeli Prime Minister orders an Israeli soldier to perform a certain task and his Rosh Yeshiva rules that the task constitutes a violation of Halachah, to whom should he listen? This question emerged as a burning issue during the evacuation of the Jewish communities of the Gaza Strip in August 2005. Many rabbis of the Religious Zionist community in Israel, led by the venerable Rav Avraham Shapira, the Rosh Yeshiva of Yeshivat Merkaz HaRav, strongly urged soldiers to disobey orders. Other major leaders, such as Rav Aharon Lichtenstein and Rav Ovadia Yosef, instructed soldiers not to disobey orders. In practice, only sixty nine soldiers out of an estimated twenty thousand religious soldiers who participated in the withdrawal refused to follow instructions during this painful episode. I, in fact, instructed soldiers to follow the rulings of Rav Lichtenstein and Rav Ovadia Yosef.
  The Root of the Problem - The Division of Torah and Political Leadership
  The Torah identifies two institutions of authority. First, the Torah speaks of the <i>beit din,</i> specifically the Sanhedrin, whose Torah leadership we must follow. In this regard, the Torah exhorts us, "Based on the rulings they rule for you, and [based] on the justice they tell you you shall act" (Devarim 17:11). The Torah subsequently speaks of the leadership of a king. The Torah forbids rebellion against either of these institutions of authority. In fact, both a rebel against Torah authorities (<i>zaken mamreih</i>) and a rebel against political authorities (<i>mored bemalchut</i>) are punished by death, because such people threaten the stability and viability of society. The Ramban (Shemot 22:27) and <i>Sefer Hachinuch</i> (Mitzvah 71), in explaining the prohibition of cursing a leader, write that the Torah forbids cursing any national leader, be he from the political authority or from the Torah authority.
  The Rambam outlines the parameters of these two authorities. Regarding the Sanhedrin, he writes, "The Supreme Rabbinic Court in Jerusalem is the seat of the Oral Law and the center of judicial authority and the source of all legislation of the Jewish people” (<i>Hilchot Mamrim</i> 1:1). On the other hand, the Rambam (<i>Hilchot Melachim</i> 4:10) describes the role of the king as that of waging war and maintaining law and order in society.55<i class="footnote">See <i>Derashot Haran</i> (11) for a fuller discussion of the role of the king. For a discussion contrasting the views of the of the Rambam, the Ran, and the Abarbanel regarding the role of a king, see this author's essay in <i>Beit Yitzchak</i> 5749 pp. 142-150.</i>
  Accordingly, in the Torah's vision of society, the Sanhedrin administers the legislative and judicial aspects of society, while the king constitutes the executive branch of government. It is important that to note that Rav Kook writes (<i>Teshuvat Mishpat Kohen</i> 144) that someone who is recognized by the Jewish people as a leader is, to a great extent, the halachic equivalent of a king.56<i class="footnote">See the comments of the Radvaz to the Rambam <i>Hilchot Melachim</i> 3:8, which serve as the basis for Rav Kook’s position.</i> Rav Kook’s approach has been adopted by many other <i>poskim</i>, including.Rav Yitzchak Herzog (<i>Techukah L’Yisrael Al Pi Hatorah</i> 1:152), Rav Ovadia Yosef (<i>Teshuvot Yechave Da’at</i> 5:64).
  Even if one does not subscribe to Rav Kook’s approach, the importance of effective political leadership is emphasized by <i>Chazal</i>’s comment (Avot 3:2) that “One should pray for the welfare of the government [of the country in which he resides], for if not for government's discipline, each man would swallow his friend alive (i.e. utter pandemonium will prevail).”
  Although the division of powers between the religious and political authority has the advantage of checks and balances, it also carries the distinct disadvantage of allowing potential conflicts between the two authorities. A classic example of such a conflict is when Pinchas and Yiftach (recorded in a Midrash cited by <i>Tosafot</i> to <i>Ta’anit</i> 4a s.v. <i>Vehaynu</i>) could not reach agreement about how to resolve the dilemma regarding Yiftach’s daughter (see <i>Shoftim</i> 11). Yiftach swore that if he would be victorious in his battle with Ammon, he would offer the first thing that exited his house as sacrifice to Hashem. When he returned home after his triumph, his only daughter was the first to emerge from the house.
  <i>Chazal</i> question why Yiftach did not seek out the <i>beit din</i> of Pinchas, whom <i>Chazal</i> record as the leading Torah figure of the time, in order to annul his vow. The <i>beit din</i> easily could have released Yiftach from his vow with the approach that Yiftach never would have made this vow had he known that his daughter would be the first to emerge from his home. They explain that Yiftach did not go to Pinchas because he insisted that Pinchas come to him in order to convene the <i>beit din</i>, since he was the political leader. Pinchas, in turn, insisted that Yiftach come to him for the procedure, since he was the religious leader.57<i class="footnote">Chazal note that both Yiftach and Pinchas were punished for their intransigence. Chazal</i> (cited by Rashi to Breishit 1:16) refer to this predicament with the aphorism, “Two kings cannot share the same crown.”
  However, there were times in Jewish history when one outstanding individual, such as Moshe Rabbeinu, Shmuel Hanavi, and David Hamelech, assumed both roles. In these times, such conflicts did not occur. The question facing us, though, is how to manage a conflict between the Torah and political authority, especially when the conflict emerges in a critical area such as the military.
  When Torah and Political Leadership Clash
  Ordinarily, a king must be obeyed, and the penalty for refusing to do so is death (<i>moreid bemalchut chayav mitah</i>; Rambam <i>Hilchot Melachim</i> 3:8). Both the <i>Maharatz Chiyut</i> (<i>Torat Hanevi’im</i> pp. 47-48) and the <i>Netziv</i> (<i>Ha’amek She’eilah Parashat Va’etchanan She’ilta</i> 142) explain that the reason for the severity of this punishment is that the rebel is categorized as a <i>Rodeif,</i> one who literally threatens the lives of the members of society. Although, as Rav Yehuda Shaviv notes (<i>Techumin</i> 15:122 and 129-130), this issue is greatly relaxed in a democratic society, where dissent (within limits) is deemed necessary for the functioning of a healthy society, in a military situation, dissent creates a very real danger. A successful military, so necessary for Israel given the fierce and tenacious hatred of its many enemies, depends on discipline and listening to orders. In fact, the essential goal of a military’s basic training period is to teach the soldiers to obey orders.
  However, the Rambam (<i>Hilchot Melachim</i> 3:9) writes that if a king issues an order to violate Halachah, the king's order should be disregarded. An example of appropriate disobedience of a king's order is when the generals of Shaul Hamelech, Amasa and Avner, refused to follow the latter's order to kill the Kohanim of Nov as punishment for aiding David (<i>Shmuel I</i> 22). Furthermore, <i>Chazal</i> (Sanhedrin 49a) criticize Yoav for not disobeying David's order to arrange for Uriah Hachiti’s death.
  Ambiguous Situations
  When a leader's order is clearly in violation of Halachah, the reason for refusing to follow the order would be understood by all. Hence, the refusal to disobey such an order would not lead to pandemonium and the breakdown of military discipline. For example, the refusal of Amasa and Avner to follow Shaul's order to kill the Kohanim of Nov would not lead to disarray, because all decent people would agree that this is an appropriate refusal to follow immoral orders. However, if it is unclear whether an order violates <i>Halachah</i> or not, then the required course of action may be quite different. Mutiny in this case will cause soldiers to debate whether the mutiny was permitted or not, and in a military situation, this can lead to pandemonium and a breakdown in military discipline, which is extremely dangerous for the security of the country.
  This may account for why the rabbis did not call for disobedience in certain situations. The Gemara (Pesachim 56a) relates that king Chizkiyahu removed the door to the <i>Heichal</i> (main hall) of the Beit Hamikdash and sent it to the king of Assyria in order to avoid war. The Gemara relates that <i>Chazal</i> disapproved of this action. Rashi (ad. loc. s.v. <i>V’ Lo Hodu Lo</i>) explains that they felt that Chizkiyahu should have had more faith in Hashem. The <i>Tiferet Yisrael</i> (Pesachim 4:9) explains that <i>Chazal</i> did not call for disobedience to the king because of <i>eimat malchut</i>, fear of the king. <i>Chazal</i> were not afraid that Chizkiyahu would harm them, as Chizkiyahu was an exceptionally righteous king. Rather, it seems that <i>Chazal</i> sought to protect the respect and integrity of the king. They appreciated the ambiguity of the situation, and therefore, it did not warrant mutiny that could threaten societal stability.
  This also might explain why <i>Chazal</i> do not criticize Yoav for not resisting David Hamelech’s order to count the nation (see Shmuel II ch.24). Rav Itamar Warhaftig (<i>Techumin</i> 15:153) suggests that Yoav assumed that David felt that it was permissible to do so, as there are certain situations where counting the nation is permitted (see, for example, Ramban to Shemot 30:12 and Bemidbar 1:3). Therefore, a military order that is unambiguously wrong, such as gratuitously harming a peaceful demonstrator who is not endangering anyone, should be disregarded. If, however, the Prime Minister orders Tzahal to do something that is halachically ambiguous, it seems that the order must be obeyed.
  Contemporary Applications - Rav Yaakov Ariel
  Rav Yaakov Ariel rules (<i>Techumin</i> 4:178, published in 1984) that one cannot disobey an order in a situation of ambiguity. He rules that Israeli soldiers should not disobey an order to conduct a military exercise on Shabbat even if there are serious doubts as to whether there is legitimate concern for <i>pikuach nefesh</i> (danger to life). In addition, he views disobedience due to political concerns to be entirely unacceptable. For example, he rejects the actions of soldiers who refused to participate in <i>Tzahal</i>’s siege of Western Beirut (then a stronghold of the PLO) in 1983 due to their claim that the siege was morally offensive.
  Rav Ariel aptly notes that the morality of the siege is at its core a political question as to the efficacy of the military mission. The issue becomes a moral one only if one assumes that the operation is unnecessary, which is a political question. If one believes that the operation is required, though, then it is morally acceptable. Rav Ariel rules that such decisions should be left to the discretion of the government.
  Furthermore, Rav Ariel notes that soldiers were obligated to obey military orders to evacuate Jews from Yamit, the Sinai Jewish community that was destroyed by the Israeli government (then headed by Menachem Begin) in 1982 in the wake of the peace treaty signed with Egypt. He explains:
  This is because the government at worst erred in its judgment, but it did not intend to sin. Rather, it thought that this would help the Jewish people and Eretz Yisrael…While it is true, regrettably, that the government did not consider its steps due to Torah concerns, nonetheless, the fact is that there were some rabbis who permitted the matter.58<i class="footnote">See <i>Gray Matter</i> I:142-143, where it is noted that Rav Yosef Dov Soloveitchik, Rav Moshe Feinstein, Rav Yitzchak Hutner, and Rav Ovadia Yosef all permit exchanging Israeli land for peace.</i>
  The fact that some rabbanim permitted exchanging Israeli land for peace defines the question of evacuating Jewish communities in Eretz Yisrael as “ambiguous” and delegitimizes refusal of military orders based on the claim that such evacuation violates Halachah. Such a claim is divisive, destabilizing, and dangerous. As Rav Yehudah Shaviv notes (<i>Techumin </i>15:130), “We must very carefully consider what weakens Jewish control over and the existence of Jewish life in Eretz Yisrael - obeying an order to evacuate a Jewish community or disobedience of a military order, which is liable to divide and weaken.”
  A Bad Government is Better than No Government
  The comments of the <i>Sefer Hachinuch</i> (Mitzvah 71) highlight the importance of obeying military orders even in a situation that is morally and/or halachically ambiguous:
  It is impossible for a community to function without a leader whose orders will be followed. This is because people have differing views regarding various maters and it is impossible that they will agree on a course of action regarding these matters. Thus, if there were no leader, nothing would ever be accomplished. Therefore, the decisions of one person must be accepted, be they good decisions or be they poor decisions, in order for the community to function properly. Sometimes the leader will be successful and sometimes he will not. This, however, is far superior to strife and discord which causes complete destruction (emphasis added).
  Accordingly, Rav Lichtenstein and Rav Aviner seem to have been correct in urging soldiers not to disobey orders to evacuate the Jewish communities of as Gush Katif.
  Contrasting Gush Katif with Yamit
  Rav Ariel notes that he heard the ruling regarding Yamit from none other than his rebbe, Rav Avraham Shapira. He notes that Rav Shapira issued this ruling despite his personal opinion that the withdrawal from Sinai constituted a Torah-level violation. This is indeed shocking in light of how strongly Rav Shapira insisted that soldiers disobey orders to evacuate the Jewish communities of Gush Katif.
  The most compelling explanation of Rav Shapira’s stance regarding Gush Katif does not focus on the fact the Jews were being evacuated from their homes in Eretz Yisrael. Indeed, Rav Shapira ruled that soldiers were obligated to obey orders to evacuate Yamit because some rabbis permit exchanging land for peace. The difference seems to be the planning on behalf of the evacuees.
  The residents of Yamit were generously compensated for their homes and successfully relocated. However, there was no plan for properly relocating the evacuated residents of the Gaza Strip. Even if one were to agree that the withdrawal from Gaza was strategically necessary, it was irresponsible to evacuate more than eight thousand citizens without a proper plan for their relocation. Thus, Rav Shapira’s argument for disobedience appears quite cogent.
  Supporting those who Discouraged Disobedience
  I nonetheless counseled soldiers to obey orders to evacuate the Jewish residents of the Gaza Strip. This was due to the fact that even though the evacuation was conducted in an irresponsible manner, there was a bigger picture to consider. During the summer of 2005, tensions were running extremely high between the Jews of Eretz Yisrael who supported the disengagement and those who opposed it. The disputes were ubiquitous and intense and for the most part ran along the religious-secular divide, a perennial area of serious concern in Eretz Yisrael. Concern for violence was very real. It seemed that massive disobedience on the part of religious soldiers might have sparked a serious conflagration.
  The Gemara (Sotah 49a) notes that sometimes we have to make the decision not between good and bad, but rather between bad and worse. Although the evacuation was conducted irresponsibly, a civil war would have been far worse. As we quoted from the <i>Sefer Hachinuch</i>, “strife and discord causes complete destruction.”
  Conclusion - “The Jewish People Need a Strong Army”
  In practice, only sixty-nine soldiers out of an estimated twenty thousand religious soldiers who participated in the withdrawal refused to follow orders during this painful episode. With the advantage of hindsight, I believe that the soldiers who participated in the withdrawal are to be applauded. They did so with a very heavy heart and acted solely out of conviction that (in the words of one student of mine) “The Jewish people need a strong army.”
  The greatest heroes of this episode were the evacuated residents of the Gaza Strip, who, in the words of eyewitness Rav Shlomo Riskin, behaved liked princes during the evacuation. They placed the well-being of the nation over their personal concerns and almost completely refrained from violence despite the irresponsible lack of government planning. The Jewish people owe these former residents of Gaza a large debt of gratitude, and they deserve our generous support for their resettlement and return to living as productive citizens.
  
  Shabbat Demonstrations in Israel
  
  The summer of 2009 was witness to a series of street demonstrations protesting public Shabbat desecration in Eretz Yisrael. As always, debate emerged as to the efficacy and worthiness of such protests. In this essay, we shall review the debate among rabbanim regarding the protests that took place in Petach Tikvah during the mid-1980s when a movie theater began to screen films on Friday nights. Protests were held for no less than thirty-three consecutive Friday nights with protestors screaming “Shabbat” until midnight at a site near the theater. Counter protests were held, and media coverage was intense. Police protection was necessary as tensions and emotions ran high.
  Rav Yosef Shalom Eliashiv (Kovetz Teshuvot 1:44) announced his support for the demonstrations, while the longtime Sephardic Rav of Petach Tikvah, Rav Moshe Malca, voiced his disapproval. Rav Yitzchak Zilberstein, a son-in-law of Rav Eliashiv and a Rav in neighboring Bnei Brak, defended Rav Eliashiv’s position regarding this issue.59<i class="footnote">The discussion of this issue appears in the seventh and eighth volumes of <i>Techumin</i>.</i>
  Talmudic Source for Street Protests
  Although street protests would appear to be a “non-Jewish” phenomenon, an episode of this nature is recorded in the Gemara (Rosh Hashanah 19a). The Gemara relates that the Roman government issued a decree forbidding Torah study and <i>brit milah</i>. The Jews visited a certain matron who was frequently visited by all prominent Roman officials. She advised the Jews to conduct protests at night. The Jews demonstrated and announced, “Aren’t we brothers, aren’t the children of one father? Why are we treated differently than all other nations that you impose oppressive decrees on us?” The demonstrations succeeded, and the Romans subsequently rescinded the decrees. This passage from the Gemara shows that it is appropriate at times to conduct street demonstrations when we are being oppressed. The question is whether it is worthwhile or counterproductive to protest public desecration of Shabbat in Israel today.
  <i>Lifnei Iveir</i>
  Among Rav Malca’s objections is the fact that conducting demonstrations on Friday night causes journalists and police to violate Shabbat in order to record and protect the demonstrators. In addition, he notes that non-observant Jews will turn on their televisions on Friday night in order to view scenes from the action in Petach Tikvah. Rav Malca argues that this constitutes a violation of the prohibition to cause others to sin, <i>lifnei iveir lo yitein michshol</i> (Vayikra 19:18). Rav Malca even objects to the common practice in certain observant neighborhoods in Israel to close the streets in honor of Shabbat. He argues that this violates <i>lifnei iveir</i>, as drivers will drive their cars further in order to avoid the blocked-off neighborhoods. He notes that every time a driver presses the accelerator, he violates the prohibition to create fire on Shabbat.
  Rav Eliashiv in a very brief responsum cites the <i>Teshuvot Maharil Diskin</i> (145 in the <i>Kuntress Acharon</i>) as proof that <i>lifnei iveir</i> is not violated by such demonstrations. The <i>Maharil Diskin</i> writes that one who is being unjustly coerced to give of his money is not required to part with his money willingly simply in order to spare the aggressor from violating the prohibition to steal. Rav Zilberstein writes about demonstrations:
  This issue is similar to the problem of one who is accosted by a thief [on Shabbat] and screams for help. Is he required to refrain from yelling for help in order that the police not violate Shabbat? It appears that it is permissible for him to do so and he is not obligated to remain silent. The fact the the police arrive in automobiles [is not of concern because] he did not invite them, and therefore, it is not a sin to scream. The victim is not required to acquiesce to the theft simply due to concern for the sins of the police that he did not order to come.
  Rav Yisrael Rozen (<i>Techumin</i> 7:139-143), while not endorsing the Shabbat demonstrations and street closings, argues that one violates <i>lifnei iveir</i> only if there is a direct connection between the one who causes the sin and the one who sins. Indeed, the classic examples of <i>lifnei iveir</i> in the Gemara (Pesachim 22a) are one who brings wine to a Nazir or a limb from a living animal (<i>eiver min hachai</i>) to a non-Jew, which directly facilitate the sin.
  Rav Rozen cites a number of <i>teshuvot </i>to support his argument. He cites Rav Moshe Feinstein’s permission (<i>Teshuvot Igrot Moshe</i> Y.D. 1:72) to rent out a catering hall to a couple who will conduct a wedding celebration that includes mixed dancing. Rav Moshe reasons, “If this is forbidden, then it should be forbidden to sell cooking utensils to non-observant Jews, since they will cook non-kosher food with them and will cook on Shabbat.” Rav Rozen cites the <i>Teshuvot Maharsham</i> (2:184), who permits renting a store to a non-observant barber who will open his business on Shabbat. Finally, he cites Rav Shmuel Eliazri (<i>HaTorah Vehamedinah</i> 7-8:141), who permits a <i>beit din</i> to release a <i>get </i>certificate to a woman who will use the certificate to marry someone she is forbidden to marry.
  Rav Rozen accordingly concludes that closing streets for Shabbat does not violate <i>lifnei iveir</i>:
  If the protest organizers have no connection to the police action and certainly would accept their non-presence, and they are not pleased by the police presence, and on the other hand there is good reason in the opinion of the protestors to demonstrate on Shabbat, then in my opinion there is no concern for Lifnei Iveir and Mesayei’ah [the possible rabbinic obligation to refrain from assisting others to sin even in situations where <i>lifnei iveir</i> is not violated].
  Rav Malca – Why Such Demonstrations are Counterproductive
  Rav Malca notes that the purpose of demonstrations in Israel today is to fulfill the mitzvah of offering words of reproof (<i>tochachah</i>) to one who sins (Vayikra 19:17) and that the parameters of this mitzvah must be explored to arrive at a proper decision regarding public protests. Rav Malca notes three points in the Rama and <i>Bei’ur Halachah</i> that he sees as rejecting such demonstrations in Israel today since they most likely will have little effect and serve only to heighten tensions between religious and observant Jews.
  Rav Malca first cites the Rama (O.C. 608:2), who writes, “If one knows that his words will not be heeded, he should not reprove a large group more than once. He should not excessively reprove them, since he knows they will not listen to him.” Thus, Rav Malca argues that no more than one demonstration should be conducted regarding Shabbat. He also cites the <i>Bei’ur </i><i>Halachah</i> (608 s.v. <i>Aval</i>), who states that the obligation to reprove applies only to those who sin occasionally. However, “Those who have completely forsaken the Torah, such as those who publicly desecrate Shabbat or eat non-kosher even when kosher food is easily obtainable, are not categorized as a ‘friend’ [whom one is obligated to reprove] and one is not obligated to reprove him.” Sadly, this applies to many Israelis today. Finally, the <i>Bei’ur Halachah</i> (ad. loc. s.v. <i>Chayav Lehochicho</i>) cites the <i>Sefer Chassidim</i> (413), who states, “One should offer words of reproof only to those with whom one enjoys a close relationship. However, if the sinner is a stranger who will hate the one who rebukes him, one should refrain from reproof.”
  Rav Eliashiv and Rav Zilberstein – Why Such Demonstrations are Necessary
  Rav Eliashiv was shown Rav Malca’s remarks and responded:
  I do not understand why the Mitzvah of Tochachah is relevant; does one think demonstrations are conducted to fulfill the Mitzvah of Tochachah? I am amazed - behold, the matter is obvious - had everyone excused himself with [merely] fulfilling the Mitzvah of Tochachah, then the stores, public transportation, etc. would operate on Shabbat as they do during the week, and there would be nothing left of Shabbat. The goal of the demonstrations is to stop the spread of the plague of the destruction of Shabbat. This is what is left for God-fearing individuals who tremble at His words - to protest and demonstrate on behalf of the holiness of Shabbat.
  Rav Zilberstein adds that “Just as it is obvious that if someone enters his private domain and desecrates Shabbat we are obligated to protest, so too we must protest on our streets lest there be [further] breaches.” Moreover, he argues that the demonstration is conducted for the benefit of the demonstrators. As such, the fact that it does not prevent violation of Shabbat is irrelevant. He notes the deleterious spiritual effects of witnessing Shabbat desecration.60<i class="footnote">See Bava Batra 57b and <i>Teshuvot Igrot Moshe</i> Y.D. 1:156.</i> When an editor of <i>Techumin</i>, Rav Uri Dasberg, commented that one simply should avoid the streets where the <i>chillul Shabbat</i> occurs, Rav Zilberstein responded:
  Behold, a third of Petach Tikvah’s residents are observant. Should they be required to stay home and not attend shuls and Batei Midrash and only those who defame Torah should be entitled to transverse the streets on Shabbat? Behold, Eretz Yisrael is given to us to live a Torah life; is it proper that we should be required to remain sequestered in our homes for Shabbat?
  Rav Malca responded to Rav Eliashiv by firmly standing his ground and “rejecting any demonstrations on Shabbat itself that increase public Chillul Shabbat on a large scale and have no effect other than to sharpen [the divide] in the relationships between the two camps and cause the secular Jews to fight us.”
  Concluding Thoughts
  Rav Malca approach reflects a typical non-confrontational Sephardic approach to non-observant Jews. The approach has been to welcome non-observant Jews to the community with the hope that either they or their children will come closer to Torah. This approach has been fairly successful in that very few Sephardic Jews are members of non-Orthodox congregations. As one non-observant Sephardic Jew remarked to me, “One must respect the Torah law, even if one does not fully observe it.” Moreover, the Sephardic community both in Israel and in the exile is in the midst of a significant religious resurgence in far greater numbers than Ashkenzic Jews, as most non-observant Sephardic families never were completely alienated from Torah life, as rabbis and the community informally gave them “some space.”
  Religious Zionists in turn, since the time of Rav Kook, have followed his call to partner with secular Jews in the task of nation building. Rav Kook advocated avoiding a confrontational relationship with non-observant Jews, as this is hardly conducive to developing a partnership (see, for example, <i>Letters of Rav Kook</i> 555). Thus, Religious Zionists, generally speaking, refrain from participating in such demonstrations. Non-Zionist observant Jews, on the other hand, view their mission in Israel as striving to create and preserve the Jewish and Torah character of Eretz Yisrael to the greatest extent possible.
  Challenges
  Those who protest voice their objection to public <i>chillul Shabbat</i>. The challenge, however, is for those who do not participate in the demonstrations to be conscious of the fact that living a secular lifestyle life does not constitute an acceptable alternative for a Jew. Orthodox Jews by very definition believe that the Torah is divinely revealed and that desecration of Shabbat constitutes a grave sin of violating the covenant between us and Hashem. Although we do not throw rocks at those who drive on Shabbat, we should be deeply disturbed by <i>chillul Shabbat</i>. Tolerance essentially equals acceptance, and thus one should avoid developing a tolerance for <i>chillul Shabbat</i> even if one believes that public demonstrations are counterproductive.
  On the other hand, I offer the following challenge to the community that engages in such demonstrations. Rav Simcha Kook (in an essay supportive of Rav Eliashiv’s approach to demonstrations) stresses that such demonstrations must be coordinated and guided by the community leaders and should not be a grass-roots movement. If demonstrators act in an overly aggressive manner, they should be subjected to severe rebuke from the leaders of the community.
  In addition, it is obvious that these demonstrations would not be held if the Turks or the British still would be governing Eretz Yisrael. Indeed, no one engages in similar protests in Brooklyn, Montreal, or Antwerp. The fact that they engage in such demonstrations only in Jewish-ruled Eretz Yisrael clearly demonstrates that they consider themselves to be a part of the broader Israeli community with a right and obligation not only to improve themselves, but also, as Rav Eliashiv explicitly states, to impact all Jewish residents of Eretz Yisrael. This would argue for greater participation in Israeli communal life, such as military service in the <i>Nachal Chareidi</i> for all who do not truly devote themselves to full-time Torah study.
  
  The Halachah of Rodeif and the Rabin Shooting
  
  Introduction
  In 1995, a Jew assassinated Israeli Prime Minister Yitzchak Rabin. His defense was that
  Rabin was a <i>rodeif</i>, one who threatens the lives of others and therefore may be put to death. We shall seek to demonstrate that Prime Minister Rabin was not a Rodeif and that the Jew who assassinated Rabin had no Halachic basis for his actions. Our discussion is based on a responsum of Rav Yehuda Henkin (Teshuvot Bnai Banim 3:33) and an essay authored by Professor Eliav Schochetman that appears in<i>Techumin</i> 19.61<i class="footnote">Both Rav Henkin and Professor Schochetman have been outspoken critics of the Oslo process and are cited as spokesmen for the Israeli Right. Nevertheless, they are adamant that Prime Minister Rabin did not have the status of a <i>rodeif</i>.</i>
  The <i>Halachah</i> of <i>rodeif</i> is similar to the <i>Halachah</i> of <i>ba b'machteret</i> that is presented in Shemot 22:1. The Torah teaches that one may kill a thief who is tunneling into one's house, since one may assume that the thief is armed and constitutes a danger to life. The Torah permits the householder to kill the thief in self-defense. <i>Chazal</i> (Sanhedrin 72a) phrase this rule accordingly, "If someone comes to kill you, act first and kill him." The Gemara (Sanhedrin 73a), in turn, presents the sources in the Torah that teach that one must kill someone who is attempting to kill another person. This rule applies not only to self-defense but also to defending the lives of others. It applies even to someone who engages in sexual assault (Sanhedrin 73a). Thus, if no other option is available, one must kill someone who is attempting to murder or rape.62<i class="footnote">For a discussion of the subtle distinctions between the cases of <i>rodeif </i>and one who tunnels into a house, see my <i>Peninei Torah</i> (Sanhedrin pp. 7-8). </i>
  In the absence of a Sanhedrin sitting in proximity to the Beit Hamikdash, Halachah does not permit a <i>beit din</i> to impose capital punishment. The rules of <i>rodeif</i>, however, apply even in the absence of a Sanhedrin (Rambam <i>Hilchot Rotzei'ach</i> 1:6-13 and Shulchan Aruch C.M. 425). In fact, the Rama applies the Halachah of <i>rodeif</i> to one who engages in forgeries, because government authorities in the past imposed severe collective punishments (including executions) upon the Jewish communities in which a Jewish forger resided. Thus, the forger endangers the community and is treated with the severity of a <i>rodeif</i>.
  Yitzchak Rabin's assassin claimed that Prime Minister Rabin was a <i>rodeif</i> because the latter's policies regarding the Oslo process endangered the Jewish community. We seek to demonstrate that this was a mistaken assertion even if one believes that Yitzchak Rabin's policies did in fact endanger the entire Jewish community. One cannot draw a legitimate analogy between the late Prime Minister and the forger discussed by the Rama.
  Chazal Never Referred to a Jewish Government as a <i>Rodeif</i>
  <i>Chazal</i> criticize a variety of Jewish leaders and hold them responsible for the destruction of the Beit Hamikdash. Nevertheless, <i>Chazal</i> never classified any of these leaders as a <i>rodeif</i>. For example, the Gemara (Shabbat 56b) states that King Solomon's marriage to the daughter of Paroh initiated the process of the destruction of the Beit Hamikdash. Similarly, the Gemara states that King Yeravam's introduction of two golden calves to Beit El and Dan accelerated the process of the destruction of the Beit Hamikdash. <i>Chazal</i>, however, do not define either Shlomo or Yeravam as a <i>rodeif</i> despite the serious damage to the Jewish community caused by these kings63<i class="footnote">Avi Levinson comments: These examples are rather indirect – and how exactly was anyone supposed to know that these would lead to the destruction o the Beit Hamikdash? How could anyone have acted on them assuming they are a r<i>odeif</i>? Moreover, can r<i>odeif</i> be applied to committing sins – every sin technically contributes to the death of someone somewhere (<i>Nefesh Hachaim</i> chapter 1 discusses this at length) - so is everyone who commits a sin classified as a <i>rodeif</i>? </i>. In addition, Rav Shlomo Aviner notes (<i>Rosh Hamemshalah</i>, Beit El 5756 p.131) that a careful examination of Tanach reveals that King David never uttered a critical word (and most certainly never acted) against King Shaul despite the enormous danger and hardship Shaul caused him.
  A reason for this, explains Professor Schochetman, is that killing (or even verbally abusing) a king who is recognized as the communal ruler is an extremely disruptive act that causes chaos and anarchy in society. This, in turn, leads to the disintegration of the society and to the death of countless innocent individuals. For example, if the government reduced the age at which one is eligible for a driver's license from seventeen to sixteen and experts determined that this would lead to increased road fatalities, would any sane person regard the government as a <i>rodeif</i>? Although the government errs, one would cause much greater harm by killing the government ministers than by leaving them unharmed. Of course, this does not exclude acting within legal means to replace a Prime Minister or government that acts recklessly.
  Moreover, the Gemara (<i>Shavuot</i> 35b) cites Shmuel, who states that a king who causes the death of up to one-sixth of his subjects is not punished. <i>Tosafot</i> (s.v. <i>D’katla</i>) explains that the context of Shmuel's statement is a king who leads his country to a <i>milchemet reshut</i> (a discretionary war). Accordingly, the legitimate ruler of the country is authorized to enact policies that endanger the population if the ruler feels that it is in the best interest of the country to do so. Accordingly, it is absurd to regard the ruler as a Rodeif for placing the community in danger if Halachah specifically permits the ruler to endanger the community.
  Rav Henkin cites Rav Kook (<i>Teshuvot Mishpat Kohen</i> 144) and Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 10:1:14) who rule that in the absence of a king appointed by Hashem, the right to elect a leader reverts to the country's populace. Thus, Halachah recognizes the results of a democratic election. Rav Henkin notes that Rav Kook and Rav Waldenberg did not state that only halachically observant Jews are eligible participants in the elections. These authorities believe that even non-observant Jews enjoy the right to choose a leader. Accordingly, Yitzchak Rabin was the legitimate political leader of the Jewish nation in Israel, even though most observant Jews voted for his opponents in the election. Thus, Prime Minister Rabin had the right to enact a policy that would endanger the country since he felt that it was in the best interest of the country to do so. Consequently, it is a grievous error to categorize Yitzchak Rabin as a <i>rodeif</i>.
  Halachic Support of Prime Minister Rabin's Policy
  Even if one believes that Prime Minister Rabin's policy violated Halachah, one must concede the fact that some noted halachic authorities, such as Rav Ovadia Yosef and Rav Yehuda Amital, supported the Oslo process as Yitzchak Rabin conducted it. Moreover, some military and diplomatic experts believed that it was prudent government policy to engage in the Oslo process. Accordingly, even though it appears that most halachic authorities oppose the Oslo process, Prime Minister Rabin had the halachic right to follow the minority opinion. How can one define Yitzchak Rabin as a <i>rodeif</i> if he had the halachic right to engage in the Oslo process? Again, we emphasize that this approach does not exclude using any and all legal means to remove an Oslo supporter from office and replace him with a leader who will conform to the majority rabbinic opinion that rejects the Oslo process.
  Procedural Issues
  Dayan Yitzchak Weiss (<i>Teshuvot Minchat Yitzchak</i> 8:148) notes that only responsible Jewish leadership (i.e. a recognized <i>beit din</i>) may determine that an individual constitutes a danger to the community and is classified as a <i>rodeif</i> on those grounds.
  Rav Avraham Shapira (an outspoken critic of the Oslo process) has stated that it is absolutely forbidden to kill another Jew based on disagreements concerning governmental policy. Rav Shapira attributes the Rabin shooting to a lack of halachic discipline. He asserts, "Youths who decide Halachic matters for themselves have learned from those who disrespect rabbis and leading Halachic authorities. Had these youths been educated to submit to rabbinic authority and to recognize the appropriate rabbinic hierarchy, they would not have engaged in verbal violence, much less physical violence" against the Prime Minister.
  Conclusion
  Rabin's assassin had no halachic basis for his actions. Professor Schochetman notes that the shooting caused grave damage to the opposition to the Oslo process. Moreover, it caused a profound <i>chillul Hashem</i> whose impact we experience to this day. Professor Schochetman (paraphrasing <i>Teshuvot Chavot Yair</i> 138) correctly describes the shooting of Yitzchak Rabin as "a foreign, evil, and bitter act." It is foreign to the Jewish people, it has no halachic basis, it is morally reprehensible, and it has had bitter ramifications for Israeli society.
  
  Expelling Arabs from Israel
  
  During the 1980s a well-known rabbinic figure in the American Jewish community who later moved to Israel aggressively argued at many public venues that Halachah requires the State of Israel to expel the Arab residents of Israel.64<i class="footnote">While some may have regarded this rabbinic figure as an effective community organizer, all agree that he was not a <i>posek</i> of significant stature. For example, communities did not consult him to issue rulings regarding their mikva’ot or Sifrei Torah. </i> He cited the following passage from the Rambam (<i>Hilchot Avodat Kochavim</i> 10:6) as support for his argument:
  When the Jews are in control (Yad Yisrael Tekifah), it is forbidden for us to permit Nochrim to reside amongst us. Even if he is only a temporary resident or an iterant merchant, he cannot pass through our land unless he accepts the seven Noahide laws as the Torah (Shemot 23:33) states, “They shall not dwell in your land.” If he accepts the seven Noahide laws, he is classified as a Ger Toshav (a Nochri who is permitted to reside in our land). However, we do not accept a Ger Toshav at a time (such as nowadays) when the Yoveil (Jubilee) laws do not apply. When the laws of Yoveil do not apply, we accept only a Ger Tzedek (a full-fledged convert).
  In this essay, we shall present the opinion of two halachic authorities, Rav Yitzchak Herzog and Rav Yehudah Amital, regarding this issue.
  Needless to say, anti-Zionist Jews who argue that the Talmud’s call not to retake Eretz Yisrael by force (Ketubot 111a) applies in our times certainly would argue that Halachah does not obligate us to expel <i>nochri r</i>esidents of Eretz Yisrael. In fact, they would argue that it is forbidden to expel <i>nochrim</i> from Eretz Yisrael, as this would constitute taking the land by force. We shall show, however, that even <i>poskim </i>of the Religious Zionist community agree that under current circumstances, there is no such obligation and there may even be a prohibition to do so.
  Rav Herzog and Rav Kook – Moslems as De Facto <i>Gerei Toshav</i>
  Rav Herzog was passionately devoted to the goal of operating the modern State of Israel in accordance with Halachah. He even composed a manuscript (published many years later by Rav Itamar Warhaftig) entitled <i>Techukah L’Yisrael Al Pi Hatorah</i> (legislation for Israel based on the Torah), which grapples with many of the challenging issues involved in administering the state in harmony with Halachah in modern times.65<i class="footnote">This work was composed shortly before the United Nations voted to establish the State of Israel in 1947. Rav Herzog’s readers should marvel at the forethought Rav Herzog demonstrates in his writing, as many of the challenges we currently face were noted by Rav Herzog long before they arose.</i>
  One of the issues he grapples with (cited in <i>Techumin</i> 2:169-179) is the fact that the United Nations would vote to establish the State of Israel only if the new state would promise to grant equal rights to all its residents, including freedom of worship. This requirement appears to contradict the aforementioned Rambam. However, Rav Herzog notes that <i>Ra’avad </i>(ad. loc.) disagrees with the Rambam and argues that the Torah’s prohibition for <i>nochrim</i> to reside in our land applies only to the seven nations of Canaan whom we were obligated to conquer in the times of Yehoshua. Moreover, the <i>Kesef Mishneh</i> (ad. loc) adds that even according to the Rambam, if a <i>nochri</i> on his own accepts the seven Noahide laws, he is permitted to reside in Eretz Yisrael. The Rambam merely excludes a rabbinic court from accepting a <i>ger toshav</i>.
  Rav Herzog approvingly cites Rav Avraham Yitzchak Kook (<i>Teshuvot Mishpat Kohen </i>58, 60 and 63), who argues that in case of great need (<i>sha’at hadechak</i>) one may rely on the opinions of the <i>Ra’avad </i>and <i>Kesef Mishneh</i>. Rav Kook regards Moslems as essentially adhering to the seven Noahide laws, especially due to the fact that they are strict monotheists (see Rambam <i>Hilchot Ma’achalot Asurot</i> 11:17).66<i class="footnote">Rav Kook issued this ruling in regard to his permission to sell farmland in Eretz Yisrael temporarily to avoid the restrictions of <i>shemittah</i> (<i>heteir mechirah</i>). Rav Herzog applies this leniency in the context of Jews agreeing to establish an independent state that permits <i>nochrim</i> to reside in its midst.</i>
  Moreover, Rav Herzog endorses Rav Kook’s argument that if an entire <i>nochri</i> community adheres to the seven Noahide laws, a <i>beit din</i> is not required to confer upon that community the status of <i>ger toshav</i>. Rav Kook writes that the Ramban (Makkot 9a) explains that a <i>beit din</i> is necessary to insure that the candidate is sincerely committed to observing the seen Noahide laws. Such reassurance, Rav Kook believes, is not necessary when the entire community is committed to observing the Noahide code.
  We should note that the <i>Chazon Ish</i> (24:3) vigorously opposed this ruling of Rav Kook. He notes that in order to be classified as a <i>ger toshav</i> and thereby eligible to reside in Eretz Yisrael, a <i>nochri</i> not only must practice the seven Noahide laws, but also must accept their authority as stemming from the Divine Authority obligating Am Yisrael with 613 mitzvot and <i>nochrim</i> with seven mitzvot as revealed by Hashem to Moshe Rabbeinu, a belief to which Moslems do not subscribe.
  Rav Herzog – Christians and Polytheistic Religions
  Having dealt with the issue of Moslems, Rav Herzog struggles with the fact that the nascent state certainly would have to tolerate <i>Notzrim</i> who are not strict monotheists from residing in its midst. While Moslems and Druze (who also are strict monotheists) constitute the overwhelming majority of <i>nochrim</i> who reside in Eretz Yisrael, other <i>nochrim</i> must be admitted as well. Moreover, the Jewish State would be expected to allow its residents to practice any religion, include polytheistic ones, despite the fact that the Torah repeatedly demands that we eliminate <i>avodah zarah</i> from our land.
  At first, Rav Herzog presents the <i>Meiri</i> (Bava Kama 113a), who argues that Christianity is not defined as <i>avodah zarah</i>. While this opinion does not constitute normative Halachah, the Rama (O.C. 156) seems to rule that <i>shittuf avodah zarah</i>, “partnering” Hashem with other powers, is not prohibited for <i>nochrim </i>despite the fact that this constitutes <i>avodah zarah</i> for Jews. However, Rav Yechezkeil Landau (<i>Teshuvot Noda Biy’hudah </i>2 Y.D. 148) argues that <i>shittuf avodah zarah</i> is forbidden even for <i>nochrim</i> and that the Rama agrees to this as well. Many other <i>poskim </i>agree with this assertion.67<i class="footnote">See Pri Megadim (Y.D. 65 <i>Siftei Da’at</i> 45), <i>Teshuvot Me’il Tzedakah</i> 22, <i>Teshuvot Sha’ar Ephraim</i> 24, and <i>Teshuvot Shav Hakohen</i> 38.</i>
  Moreover, Rav Herzog notes that the United Nations would expect the Jewish State to allow members of other religions which are undoubtedly polytheistic to reside in its midst.68<i class="footnote">Interestingly, although this was not a relevant concern to the impoverished State of Israel in its early years, in recent years this has become a major challenge, as workers from Eastern Europe and Asia have come to Israel in large numbers to support the burgeoning Israeli economy. </i> He notes, though, that the Jewish State at least would be able to prohibit barbaric practices such as the rite of a wife killing herself by fire after the death of her husband, since the British government forbade such practices in the colonies it administered.
  Rav Herzog’s Pragmatic Considerations
  Rav Herzog proceeds to note that the application of this Halachah must carefully consider the current state of the Jewish people in general and specifically in Eretz Yisrael. He writes, “We will receive the Jewish State through the consent of the United Nations, and there is no doubt that until the arrival of Mashiach, we shall be dependent on them for protection against a sea of surrounding enemies.”
  Rav Herzog continues:
  What can we do? Tell the nations of the world we cannot accept this condition [that all Nochrim will be permitted to reside in Eretz Yisrael and enjoy the freedom to practice their polytheistic or semi-polytheistic religions] because our Holy Torah forbids this?... I believe that there is not one Rav in Israel who is intelligent and has common sense who believes that we should respond accordingly…Even if one assumes that by accepting the State with this condition the Jewish State will transgress, I would even say that this sin is condoned due to Pikuach Nefesh (danger to life)…It is easy to imagine the reaction of the [United] Nations to such an approach from us (forbidding polytheists from residing in Eretz Yisrael). It is very possible to say that this will create danger for the entire Jewish people.
  Rav Herzog notes that the obligation to eliminate idolatry from our midst was issued at a time when the Jewish people were conquering Eretz Yisrael in the time of Yehoshua and were not dependent on the approval of the nations of the world. Rav Herzog believes that in the current circumstance, this mitzvah does not apply, just as it does not apply when Jews live outside of Eretz Yisrael or when there is no Jewish sovereignty. After all, the aforementioned Rambam conditions this mitzvah on the fact that “<i>yad Yisrael tekifah</i>.”
  Rav Herzog concludes that the Jewish State in 1947, created as a partnership between the Jewish people and the United Nations, hardly could be compared to the kingdom of David and Solomon in which we were complete masters of our fate and were empowered to fulfill the commands regarding the elimination of <i>avodah zarah</i>. Rav Herzog argues that it is permissible to enter into such a partnership for the benefit of our nation, especially since we just had experienced the terrible tragedy of the Holocaust. Rav Herzog compares such an enterprise to the partnership made by the Jews of the Second Temple period with the polytheistic Persian Empire that helped us achieve a foothold in the land of our forefathers.
  Rav Amital – Israel’s Declaration of Independence
  Rav Herzog’s approach clearly was accepted by the overwhelming majority of observant Jews, as the leaders of both the Religious Zionists (such as Rav Zerach Warhaftig) and members of Agudath Israel69<i class="footnote">The Agudath Israel issued a statement applauding the establishment of the State of Israel without condemning the freedom of religion that was granted.</i> (such as Rav Kalman Kahane) signed Israel’s Declaration of Independence despite the fact that it grants both full rights to the <i>nochri</i> citizens of the State as well as full religious freedom to all <i>nochrim</i>.
  Moreover, Rav Yehuda Amital (<i>Daf Kesher</i> 2:340) adds that once this agreement was made, we cannot annul it even if it was made under duress. Rav Amital points to the Rambam (<i>Hilchot Melachim</i> 6:3), who states, “We cannot act deceptively in regards to the agreements we have made.” The Radbaz (ad. loc.) explains that “This is based on Yehoshua’s interactions with the Givonim, due to concern for Chillul Hashem.”70<i class="footnote">See <i>Yehoshua</i> 9:4-27. According to this approach, even if expelling <i>nochrim</i> would not constitute a danger to the existence of the State of Israel, the State would not be obligated to destroy places that are designated for <i>avodah zarah</i>, as the Declaration of Independence promises freedom of religion. Avi Levinson argues that this is not a simple matter, as perhaps this consideration does not stand in the face of such severe matters.</i>
  The Rambam’s requirement that those with whom we have made a treaty accept the seven Noahide laws seems to hold true regarding most <i>nochrim</i> who are citizens of the State of Israel today.71<i class="footnote">We should note that this ruling of the Rambam also serves to justify <i>nochrim</i> serving as commanding officers over Jews in the Israel Defense Forces. For additional discussion of this issue, see Rav Yaron Zilberstein’s essay in <i>Techumin</i> (29:471-475).</i>
  Thus, even if one argues that the situation has changed and now “<i>yad Yisrael tekifah</i>,” we cannot change our policy due to considerations of <i>chillul Hashem</i>. Furthermore, paraphrasing Rav Herzog, I believe that there is not one Rav in Israel who is intelligent and has common sense who thinks that Israel is not dependent on the good will of its partners (such as the United States, India and China) for its survival and that this good would be severely diminished by expelling some or all of its <i>nochri</i> residents. Any rational individual who has assessed the situation appropriately understands that we have not reached the state of <i>yad Yisrael tekifah</i>, and even with what some consider the fourth strongest armed forces in the world, we cannot compare the current State of Israel to the times of Yehoshua, David, or Solomon. Indeed, Rav Ovadia Yosef writes (<i>Techumin</i> 10:44, published in 1989) that we currently are unable to remove Avodah Zarah and its worshippers from our midst.
  Similarly, Rav Yaron Zilberstein (<i>Techumin</i> 29:471-475) writes regarding those <i>nochrim</i> who serve as loyal soldiers in the IDF, “Rejecting them either socially or economically will push them into the open arms of our enemies and will impinge on the military viability of the State of Israel.”
  Moreover, Rav Hershel Schachter (<i>B’ikvei Hatzon</i> p. 216) notes that mainstream halachic thought regards the prohibition to take Israel by force as inapplicable once we have permission of the nations of the world, as Rav Meir Simchah of Dvinsk commented when the Balfour Declaration was issued. Accordingly, one could argue that the State of Israel is forbidden by Halachah take actions that would reasonably enrage the nations of the world, as this would throw into question our halachic right to maintain the State of Israel.72<i class="footnote">Rav Ovadia Yosef (<i>Techumin </i>10:43-45) makes a similar argument in a related context.</i> This, of course, does not preclude the State of Israel defending itself, which any fair-minded individual recognizes as entirely reasonable and unobjectionable.
  Conclusion
  The claim of the aforementioned rabinnic figure that Halachah demands that Israel expel all of its <i>nochri</i> residents is both unreasonable and unfounded. However, the prohibition of allowing <i>nochrim</i> to reside in our midst still has some application, as Rav Eliyahu Bakshi-Doron (<i>Techumin</i> 14:11-19) forbids encouraging <i>nochri</i> (even Moslem) tourism to Israel if it emphasizes visits to holy spots. In addition, as Rav Herzog notes the State of Israel is fully entitled to expel <i>nochrim</i> who assist those who participate in suicide bombings or launch missiles at innocent civilians.
  
  Gush Katif Fasting and Kinnot
  
  The <i>churban</i> (destruction) of Gush Katif and a number of Jewish communities in the Northern Shomron in August 2005 was a most traumatic event. Although the intention was to improve the security and stability of Medinat Yisrael, the destruction of highly productive Jewish communities and the dislocation of more than eight thousand residents is a tragedy, even if one believes that it was essential to secure Israel’s future. A highly significant article appears in <i>Techumin</i> (vol. 30), in which the Ashkenazic Chief Rabbi of Israel, Rav Yonah Metzger, discusses whether a new fast day, replete with <i>kinnot</i> composed for the occasion, should be instituted as a yearly morning of this tragic event. Although Rav Metzger offers three reasons to reject this proposal, there are appropriate vehicles to mourn <i>churban</i> Gush Katif within our existing traditional liturgy.
  The Fasts Listed in Shulchan Aruch
  Rav Metzger notes that Shulchan Aruch (O.C. ch. 580) lists no less than twenty-one days “that are appropriate days on which to fast” due to various calamities that occurred on those days. For example, Nadav and Avihu died on the first of Nissan; on the first of Av, Aharon HaKohen died; and the twenty-third of Shevat marks the beginning of the terrible civil war against the tribe of Binyamin that is recorded in the end of Sefer <i>Shofetim</i>. The Magen Avraham (ad. loc. no.9) adds that the twentieth of Sivan is a day set aside to mourn the Khmelnitsky pogroms of 1641-1642 (<i>Tach VeTat</i>; see Rav Soloveitchik’s comments regarding this commemoration, recorded in “<i>The Lord is Righteous in All His Ways</i>” pp.300-301). Thus, it would seem appropriate to add the day of <i>churban</i> Gush Katif to the list of days of mourning.
  However, Rav Metzger cites the <i>Aruch Hashulchan</i> (O.C. 580:1), who writes, “However, now, in our times and in our communities, we have not heard of anyone who fasts on these days.” The <i>Aruch Hashulchan</i> justifies this practice, noting that “the edict was not an obligation to fast on these days but a recommendation that it is proper to fast on these days. In addition, there exists no authority in post-Talmudic times to issue a decree upon all Jews [to fast on these days].” This last point emerges from a celebrated statement of the Rosh (Shabbat 2:15 and Niddah 10:3) that in the post-Talmudic era, we are not authorized to add new edicts and decrees.
  Accordingly, if these twenty-one days are observed in the breach, it makes little sense to add a day to mourn <i>churban</i> Gush Katif. We may add that it is appropriate to mourn for Gush Katif within the framework of Tisha B’av. A possible reason that the fasts listed in Shulchan Aruch are not observed is that it is too much of a burden on the community for us to mourn every tragic event in our long and sometimes tumultuous history. Instead, we set aside four days in the year to mourn the tragedies of our people, including one especially intense day of mourning on Tisha B’Av. As Rav Yosef Dov Soloveitchik stressed on many occasions (based on the commentary ascribed to Rashi to <i>Divrei HaYamim</i> II 35:25), Tisha B’Av is a day for mourning all the tragedies of our People. Thus, a reasonable and proportionate commemoration of Gush Katif may be included in that day’s mourning.
  Rav Moshe Feinstein on Mourning the Holocaust
  Rav Metzger cites Rav Moshe Feinstein’s response (<i>Teshuvot Igrot Moshe</i> Y.D. 4:57:11) to the proposal of establishing a new day of fasting for the Holocaust. Rav Moshe rejected the suggestion, citing the precedent of the absence of a new day of fasting for the enormous suffering we endured during the Crusades. He notes that Ashkenazic Jews incorporate Kinnot for the Crusades within the liturgy of Tisha B’Av (noted in the aforementioned comment of the commentary ascribed to Rashi). We may add that Sephardic Jews have similarly not added a special day of fasting for the Spanish Inquisition and the subsequent expulsion from Spain; rather, they add a <i>kinnah</i> for this awful event. Rav Moshe writes that the Holocaust should be seen “as part of the many tragedies we have endured during this long Galut (Exile).” Indeed, the perceived need for the withdrawal from Gush Katif was entirely due to the relentless intolerance of many Arabs for Jewish sovereignty in Eretz Yisrael, which is yet another expression of the anti-Semitism so unfortunately characteristic of this long Exile.
  Rav Soloveitchik cited (in addition to the aforementioned commentary ascribed to Rashi) a <i>kinnah</i> for Tisha B’Av (“<i>Mi Yittein Roshi Mayim</i>,” mourning the Crusades) that states that we are not authorized to add more days of mourning to Tisha B’Av: “<i>vechi ein lehosif moed shever vetaveirah</i>.” On this basis, Rav Soloveitchik objected to instituting Yom HaShoah as a special day of mourning for the Holocaust. Although many communities do observe Yom Hashoah, following the opinion of Rav Yechiel Yaakov Weinberg and other rabbanim who felt it appropriate to do so, one cannot compare the tragedy of Gush Katif to the Holocaust. Without dismissing the suffering endured in the dislocations of August 2005, it is nonetheless not even remotely comparable to the suffering endured during the massacres of the Crusades, Spanish Inquisition and Holocaust.
  <i>Lo Titgodedu</i>
  Rav Metzger notes <i>Chazal</i>’s (<i>Sifrei</i> to Devarim 14:1 (Piska 96) and Yevamot 14a) interpretation of the Torah’s prohibition of “<i>lo titgodedu</i>” (Devarim 14:1) as a call “not to break into different groups but to act as one unit, Agudah Achat.” The Rambam (<i>Teshuvot</i> no.329) explains, “The entire House of Israel must … act as one unit, and there should not be any Machloket [dissent] in any matter. You wise individuals are aware of the punishment for Machloket and the many problems it causes.” Rav Metzger observes, “Regrettably, the topic of the dismantling of the Katif Strip was the subject of a bitter and painful communal Machloket within our nation. An enactment to eternalize this dismantling as a day of fasting and remembrance of the destruction is liable to add and magnify dissent within the nation. This too is a reason not to issue such a decree.”
  Composing New <i>Kinnot</i> for Gush Katif
  Rav Metzger cites the opposition of Rav Soloveitchik to composing new <i>kinnot </i>to mourn the Holocaust even on Tisha B’Av. Rav Soloveitchik argued (as presented in “<i>The Lord is Righteous in All His Ways</i>” pp. 298-299):
  I do not like new 'prayers.' I cannot use it (a new Kinnah composed to mourn the Holocaust) because, in my opinion, there is no one, no contemporary, who has all the qualities indispensable for writing prayers. I am always reluctant to accept new compositions; in general, I do not trust anyone who tells me he intends to compose a prayer. I do not believe in so-called liturgical creativity or creative liturgy. The Gemara (Megillah 17b) says that 'One hundred and twenty elders, among whom were many prophets,' wrote our Shemoneh Esreh. Only they could write it.
  Prayer is not just a hymn, but a copy of a conversation between Ha-Kadosh Barukh Hu and a human being. Who can write such a conversation? Only the Men of the Great Assembly and the prophets were able to do it. That is why we are so careful about every word in the nusah ha-tefillah, the text of the liturgy.
  Of course, later piyutim (not tefillot) were written by Hakhmei Ashkenaz and Hakhmei Tzarfat. There is no doubt that the authors of the piyutim mourning the destruction during the Crusades were of the Ba'alei ha-Tosafot. But the Hakhmei Ashkenaz and Hakhmei Tzarfat were the Hakhmei ha-Masorah! They were responsible not only for piyutim, but for the shalshelet ha-kabbalah, the transmission of the tradition as a whole! Tosafot quotes Rabbi El'azar ha-Kalir many times when he has a halakhic problem. Rabbi El'azar ha-Kalir was not simply a paytan; he was one of the Hakhmei ha-Masorah. So, of course, if he wrote a piyut of a kinah, it has relevance. But I cannot trust others to do it. Not that I am suspicious. Not that I, God forbid, have anything against the author of a contemporary kinah. I just do not believe that a contemporary has the inner ability, the faith, the depth, the sweep of experience, the ecstacy, and the taharat ha-nefesh, the purity of soul, that would authorize him or give him permission to write a piyut. I just do not believe that there is anyone today who is qualified to do this.
  Although many communities do recite a <i>kinnah</i> for the Holocaust, such as the one written by Rav Shimon Schwab, on Tisha B’Av, this is due to the overwhelming horror of the Holocaust. Many feel that we cannot let Tisha B’Av pass without acknowledgement, in the form of a <i>kinnah</i>, of this horror. However, we heed Rav Soloveitchik’s words of caution when considering tragedies of any lesser magnitude. For example, Rav Ben Zion Uzziel, the Sephardic Chief Rabbi of Israel from 1939-1953, composed a compelling <i>kinnah</i> commemorating the tragedy of the fall of the Jewish Quarter of Yerushalayim in Israel’s 1948 War of Independence (printed in Rav Uzziel’s “Michmanei Uzziel”). This <i>kinnah</i>, to the best of my knowledge, is not incorporated in the Tisha B’Av <i>kinnot</i> by any community, nor was it recited even prior to the recapture of the old city of Yerushalayim in June 1967. The fall of the old city of Yerushalayim in 1948 was a terrible tragedy that included hundreds of deaths of its Jewish residents and defenders. If we do not recite Rav Uzziel’s <i>kinnah</i> for this terrible event, how can we recite a <i>kinnah</i> for Gush Katif?
  Conclusion: A Proposed Manner to Mourn the Loss of Gush Katif
  Rav Metzger concludes his article noting, “Due to our many sins, a portion of our homeland was torn away, and the grief and sorrow is great. Despite the great pain and anguish, a new fast day should not be instituted,” nor should new <i>kinnot</i> be recited. He does recommend reciting “<i>Baruch Dayan HaEmet</i>” (without saying Hashem’s name), in light of the Gemara (<i>Brachot</i> 58b), which states, “One who sees Jewish homes in ruins should recite 'Baruch Dayan HaEmet.'”
  We may add that it is appropriate to commemorate Gush Katif through the words of existing prayers. Rav Soloveitchik similarly notes (cited <i>ibid</i>.) that there is ample room within the already existing traditional liturgy to express our mourning for the Holocaust:
  On Tish'ah be-Av, our eulogy is not limited to the Ten Martyrs. They were the first victims. We also deliver a eulogy for the victims of the Crusades, and for the deaths of millions of Jews down through Jewish history, including those killed by Hitler. I would rather use a piyut by one of the Ba'alei ha-<i>Tosafot</i> or any other of the Hakhmei Ashkenaz than a liturgical piece by a present-day writer.
  In light of this point, I propose that we bear in mind the tragedy of Gush Katif when we recite in Selichot, “<i>yofi admateinu l’zarim</i>,” the beauty of our land is in the hands of <i>nochrim.</i> This phrase perfectly matches and captures the tragic loss of Gush Katif73<i class="footnote">Yakir Forman adds the same idea should apply when we hear Eichah 5:2 (“Nachalateinu Nehefchah LeZarim, Bateinu LeNochrim, Our land has been handed over to strangers; our houses to foreigners”) and subsequently recite it in the first Kinnah on Tishah B'av night. </i>. In addition, the Sephardic liturgy for Tisha B’Av mentions (immediately prior to the removal of the Sefer Torah for Keriat HaTorah) that Eretz Yisrael is <i>kevushah</i>, conquered. Not only may we bear in mind that this refers to Gush Katif, but this phrase may also remind us that even today, the Israeli government is not completely free to act as we wish in Eretz Yisrael, as it is subject to external pressures that brought about the loss of Gush Katif.
  
  Kashrut in Combat Conditions
  
  The Torah (Devarim 6-10-11) makes an astonishing implication in its description of the incredible boon we would find we enter the land of Canaan - “Houses filled with all sorts of fine items, pits already dug and vineyards and olive groves that we did not plant that we may eat to our satisfaction”. The Torah implies that we may eat any of the items we find in the homes of the people of Canaan that we shall conquer even if the food is not kosher! In fact, the Gemara (Chullin 17a) supports this explanation stating that we may even eat dried pig that we find in these homes! <i>Chazal</i> rule such is permissible despite the fact that the <i>pesukim </i>could have potentially been interpreted as permitting only those items such as vineyards and olive groves (assuming they are not <i>orlah)</i> which are kosher.
  The Rambam’s Explanation
  Rambam (<i>Hilchot Melachim</i> 8:11) severely limits the application of this Halachah. He imposes the following four limitations: the Halachah applies only to front line soldiers, only when located in enemy territory, (where the supply lines from the Jewish army are disrupted) only if they are very hungry, and only if there is no other food available. The <i>Kesef Mishneh</i> (ad. loc.) explains that the soldiers are not dangerously hungry to the point that they will die if they do not eat. Rather they are simply very hungry and they cannot find kosher food. The <i>Netziv</i> (<i>Ha’ameik Davar</i> to Devarim 6:10) explains “that the permission granted is due to Pikuach Nefesh (danger to life), as being overly concerned about Kashrut during war can lead to endangering lives”.
  The Torah according to the Rambam’s approach is expanding the definition of <i>pikuach nefesh</i> in a wartime scenario. Soldiers in battle are in a situation of severe stress and must be as alert as possible to preserve their own lives, the lives of their comrades in arms and the lives of the citizens they are protecting. A soldier that is not properly fed might not fight effectively as he must and might thereby endanger lives.
  The scenario described by the Rambam was the very unfortunate and regrettable reality encountered by some Israeli soldiers who fought in the 2006 Second Lebanon War. Soldiers were located deep in enemy territory where the supply lines were disrupted. They were very hungry and non-kosher food was available in the homes they had taken over. These soldiers asked if it was permissible for them to follow the Rambam and partake of the non-kosher food (<i>Techumin</i> 27:399).
  In fact, many years ago I counseled a relative who was assigned to command a security checkpoint in Shomron from the early morning to the afternoon, to drink water on Shivah Asar B’Tammuz, lest he become dehydrated and incapable of properly executing his potentially life saving duties. Since then, the rabbinate of <i>Tzahal </i>has greatly improved its services and I now counsel those who ask to present such dilemmas to their <i>Rav Tzva’ee</i> (military chaplain).
  The Ramban’s Explanation
  One major impediment to following this Halachah of the Rambam is the fact that the Ramban (Devarim ad. loc.) rejects his interpretation. The Ramban understands that the permission granted has nothing to do with combat conditions or <i>pikuach nefesh</i>. Rather it is specific permission given under specific circumstances for all of Am Yisrael to eat the non-kosher food that is found in the homes of the people that we conquered in the time of Yehoshua. According to the Ramban there is no practical relevance of this Halachah beyond the time of Yehoshua bin Nun. The pesukim’s failure to mention war and soldiers may support the Ramban’s interpretation.
  We offer two explanations for why the Torah, according to the Ramban, granted such permission to our ancestors. One possibility is that this permission demonstrates the principle of <i>Yalta </i>(Chullin 109b) that for everything forbidden there is a permitted counterpart. The examples he offers include <i>cheilev</i> (fat) of a <i>chayah</i> (a non-domesticated animal) which is the kosher counterpart of the forbidden fat (<i>cheilev</i>) of a <i>beheimah</i> (domesticated animal), a part of the permitted <i>shivuta</i> fish (which tastes like pig) which is the counterpart to non-kosher pig and <i>dam tohar</i> (see Vayikra 12:1-8) which is the counterpoint to <i>dam niddah</i>.
  <i>Yalta</i> illustrates that the forbidden items per se do not represent the essence of the prohibition. Rather, our abstaining from eating pig, <i>niddah</i>, <i>cheilev</i> and all other forbidden items stems purely from obedience to Hashem. The Torah permitted us these counterpoint items, to emphasize that we abstain from forbidden foods not because there is something inherently wrong with them but only due to adherence to the divine discipline.
  Another explanation (based on Rav Elchanan Samet <i>Iyunim B’farshee’ot Hashavua</i> 2:311-313) is that Hashem sought to limit the challenge we faced upon entering Eretz Yisrael. We were faced with the enormous difficulty of eliminating the <i>avodah zarah</i> (idolatry) which was at times quite valuable (see Devarim 7:25 which states that some of the Canaaim’s idols were made of gold and silver). Eretz Yisrael when controlled by the seven nations was awash with <i>avodah zarah</i> as Devarim 12:1-3 demonstrates. It was an enormous challenge for our ancestors (and can be today as well if valuable <i>avodah zarah</i> falls into our hands from sources such as the estate of a non-observant relative or a gift from a business partner) to destroy <i>avodah zarah</i> that sometimes can be worth a fortune.
  Moreover, the Jews upon entering Eretz Yisrael had not eaten conventional food for forty years while in the Midbar. They were in the midst of the war to conquer Eretz Yisrael and therefore were likely not to have had the opportunity to properly cultivate various crops. Thus, they were very likely subsisting on whatever food they could find. When they conquered a home of a Canaanite they were confronted with Torah prohibitions and obligations that were enormously difficult to fulfill. Under these circumstances Hashem permitted the lesser of the two evils, consuming non-kosher food, in order for us to withstand the challenge of having to utterly destroy <i>avodah zarah </i>no matter how great its value.
  Support for this explanation may be gleaned from the words of the Ramban who states “All the prohibitions were permitted to them except, the prohibition of Avodah Zarah”. This implies that the permission emerges from the concern for adherence to the <i>avodah zarah</i> prohibition. This is an example of Hashem not imposing a too difficult of a challenge upon us (see Avodah Zarah 3a-b). Beit Din is similarly enjoined from imposing a decree that is too difficult for most of the community to endure <i>(Avodah Zarah</i> 36a).
  The permission to violate the less severe prohibition is similar to Eliyahu permitting the offering of <i>korbanot</i> outside the Beit Hamikdash at Mount Carmel (Melachim I ch.18) in order to wean the people of the northern kingdom from idol worship (see Rambam <i>Hilchot Yesodei Hatorah</i> 9:3). Rav Avraham Yitzchak HaKohen Kook similarly explains (<i>Chazon Hatzimchonut V’hashalom</i>) that the Torah permits killing animals for food in order to stress the severity of the prohibition to murder.
  <i>Halacha L’Ma’aseh</i> – Practical Application
  It is difficult for <i>poskim</i> to permit soldiers to follow the Rambam’s opinion. The Shulchan Aruch does not address this issue, as it was not a relevant issue at the time of its composition when there was, sadly, no Jewish state nor Jewish army. The <i>Aruch Hashulchan He’atid</i> (<i>Hilchot Melachim</i> 77:2-3) which does address issues of war strongly objects to soldiers following the lenient opinion in the wake of the many questions he poses against the Rambam’s opinion. Indeed, Rav Yitzchak Herzog, the Ashkenazic chief rabbi of Eretz Yisrael during World War Two, counseled soldiers who were fighting the Nazis (<i>Yimach shemam</i>) in the Jewish Brigade of the British army, to avoid non-kosher food despite the difficulty of doing so (<i>Teshuvot Heichal Yitzchak</i> O.C. 42). While praising those who fought in the Jewish Brigade and extolling their important role in fighting the evil Nazis, he reasoned that the Ramban certainly does not permit eating non-kosher in such circumstances as he would limit the permission to soldiers fighting in a Jewish war.
  Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 18:70:10), addressing the challenges faced by soldiers in <i>Tzahal,</i> is very reluctant to rely on the Rambam’s opinion in light of an insight of the <i>Meshech Chochmah</i>. The <i>Meshech Chochmah</i> notes that the <i>pasuk</i> that follows immediately the Torah’s permission to eat the captured items states “Be careful not to forget Hashem your God”. He interprets this as a warning of the possible very negative impact of consuming the non-kosher items, despite the Torah permission to eat them. He notes that the Gemara (Yoma 39a) warns of <i>timtum haleiv</i>, the spiritual numbing of the heart that occurs as a result of consuming non-kosher items even when it is permissible to do so.
  The <i>Meshech Chochmah</i> points to the Shulchan Aruch’s resolution (O.C. 328:14 and see Mishnah Berurah 328:39) of a classic dilemma posed by the <i>Rishonim </i>regarding one who on Shabbat must consume meat to prevent death but no kosher meat is available. In such circumstances one must choose between violating Shabbat, a capital crime, by slaughtering an animal to render its meat kosher and eating available non-kosher meat (a less severe prohibition). The Shulchan Aruch rules that one should violate Shabbat instead of eating non-kosher food even though eating the non-kosher food is a less severe prohibition. The reason, explains the <i>Meshech Chochmah</i>, is that eating non-kosher food leaves a negative impact upon the <i>neshamah</i>.
  According to the <i>Meshech Chochmah</i>, the permission to eat non-kosher foods is implicitly discouraged by the Torah, not unlike the Torah’s implicit discouragement (see Rashi to Devarim 21:11 s.v. <i>V’lakachta</i>) of engaging the <i>eishet yefat to’ar</i> described in Devarim 21:10-14. He understands the permission as a concession to the <i>yeitzer hara</i> (evil inclination; see Kiddushin 21b) and as something that maximum efforts should be made to avoid. The Rambam’s permission might be compared to the permission to eat on Yom Kippur granted to the one bringing the <i>sa’ir laAzazel</i> (see Vayikra 16:21-22) to the desert cliff. The Mishnah (Yoma 66b-67a) states that food was offered him at each of the ten stations located on the route from the Beit Hamikdash to the cliff. The Gemara <i>(ibid</i>.) notes that no one who walked the <i>sa’ir hamishtalei’ach</i> ever partook of the food on Yom Kippur but the very fact that it was permitted to us helped them because of the paradoxical principle of <i>eino domeh mi sheyeish lo pat b’salo lemi she’ein lo pat b’salo</i>: one who has the option to eat cannot be compared to one who does not have what to eat. When one is given the option to eat he is less desirous of the food than he would have been had it been forbidden to him. Similarly, it is possible that even the Rambam believes that the Torah permits the soldier to eat non-kosher food when behind enemy lines in order to (paradoxically) help him resist the temptation to eat non-kosher food.
  Conclusion – The Experience of Mr. Jack Scharf zt”l
  The experience of Mr. Jack Scharf zt”l of Riverdale, New York, a highly decorated soldier in the American army in the European theater during World War Two, adds much cogency to the comment of the <i>Meshech Chochmah</i>. In a speech at the Torah Academy of Bergen County in 2005 he recounted that he avoided non-kosher meat as a front-line combat soldier; the only meat he ate was the kosher salamis that his mother occasionally sent him. His friend Mr. Saul Leiman of Bronx, New York also spoke at that event and noted that he also refrained from eating non-kosher meat during his years of service in the United States arm during World War Two, in the Pacific theater. He survived on ice cream, fruit and vegetables. Mr. Scharf also mentioned the non-kosher foods’ very negative impact on the Jewish soldiers who did not have the fortitude to refrain from non-kosher meat. He recalled that they were wont to flippantly remark “Uncle Sam taught me how to eat ham”, which unfortunately means “I became highly assimilated while serving in the American army”. It is no wonder that on one hand Mr. Leiman and Mr. Scharf raised observant Jewish families after the war while on the other hand the experience of the hundreds of thousands of Jews who served in the American army during World War Two contributed mightily to the tragic assimilation of a large percentage of the American Jewish community.
  Thus, as is noted in <i>Techumin</i> 27:407 by a contributor from Yeshivat Har Etzion, it is difficult to rely on the Rambam’s opinion in practice. Even under severe stress soldiers should make every effort to avoid relying on the Rambam’s lenient approach or at the very least they should minimize their reliance on this opinion of the Rambam even in a case which might involve <i>pikuach nefesh</i>. May Hashem quickly send Mashiach and render this and all halachic discussions of war as merely theoretical discussions.
  
  Technology
  
  The Prohibition of Turning On Electric Lights on Shabbat and Yom Tov
  
  <i>Poskim</i> today assume that turning on an electric appliance in which a filament is heated until it glows constitutes a Torah-level violation of Shabbat. Although there is great debate regarding whether completing a circuit in an appliance in which a filament is not heated until it glows is a biblical or rabbinic level prohibition, a clear consensus has emerged concluding that turning on an appliance with a glowing filament violates a Torah prohibition. We first will explore the basis and development of this consensus view, and afterwards shall discuss the debate regarding non-incandescent lights.
  Four Sources in the Gemara
  There are four passages in the Gemara that discuss heating metal on Shabbat. The Gemara (Yevamot 6b) states that melting metal on Shabbat in preparation for use in administering <i>sereifah</i> (the capital punishment of burning) involves two violations of the laws of Shabbat, <i>mevasheil </i>(cooking) and <i>havarah </i>(burning). The <i>Teshuvot Avnei Neizer</i> (O.C. 229) asserts that this Talmudic passage is the primary source that teaches that one who heats a metal violates a Torah-level prohibition. The second source is the Gemara (Pesachim 75a) that records a dispute between Rav Chisda and Ravina about whether a <i>gachelet shel matechet</i> (a burning metal coal) is defined by Halachah as fire.
  The Gemara (Yoma 34b) also relates that if the Kohen Gadol found it difficult to immerse in a cold mikvah on Yom Kippur,74<i class="footnote">The Kohen Gadol was required to immerse himself at five different points during the sacrificial service of Yom Kippur<i> (Yoma 32a).</i></i> iron bars were heated prior to Yom Kippur and placed into the mikvah. The <i>Maggid Mishneh</i> (commenting on Rambam <i>Hilchot Shabbat</i> 12:1) points out that this Gemara teaches that heating metal involves violating a biblical prohibition. Had the Gemara regarded heating a metal as only a rabbinic prohibition, it would have permitted heating the metal rods on Yom Kippur, because "<i>ein shevut beMikdash</i>," rabbinic prohibitions do not apply in the Beit HaMikdash. The <i>Maggid Mishneh'</i>s proof is not beyond dispute. One could argue that heating metals is merely a rabbinic prohibition, but nevertheless, we do whatever is necessary in order to minimize violating rabbinic prohibitions in the Beit Hamikdash.75<i class="footnote">i&gt;  See</i> Eruvin 103a, Rambam <i>Hilchot Korban Pesach</i> 1:18, and the commentary of the <i>Lechem Mishneh (ad. loc</i>.), which seem to support this contention. Finally, the Gemara (Shabbat 74b) defines heating a metal to soften it as an act of <i>bishul</i>.
  <i>Rishonim </i>and <i>Acharonim</i>
  The Rambam (<i>Hilchot Shabbat</i> 9:6) rules that heating metal constitutes a <i>toladah</i> (subcategory) of <i>bishul</i>. Later on (<i>Hilchot Shabbat</i> 12:1), the Rambam rules that heating metal is a <i>toladah </i>of <i>havarah</i>. The Ra’avad (commenting on Hilchot Shabbat 12:1) asserts that the act of heating metal is not considered Havarah. The Avnei Neizer (O.C. 229) explains that the Rambam and <i>Ra’avad</i> disagree as to whether the Halachah follows Rav Chisda or Ravina in their debate as to whether a <i>gachelet shel matechet</i> constitutes a fire. If a glowing metal does not constitute fire, then heating metal until it glows would not be considered <i>havarah</i> (see Rav Shlomo Zalman Auerbach, <i>Teshuvot Minchat Shlomo</i> 1:105-107, for further discussion of this point.) Halachah accepts the opinion of the Rambam as normative (<i>Chayei Adam</i> 45:2 and Shaar Hatziyun 318:1).
  The Rambam appears to contradict himself as to whether heating a metal constitutes <i>bishul</i> or <i>havarah</i>. Originally, the Rambam writes that it constitutes <i>bishul</i> while later on he states that it is not <i>bishul</i>. The <i>Lechem Mishneh</i> (commenting on <i>Hilchot Shabbat</i> 12:1) explains that one violates different prohibitions depending on the degree to which the metal has been heated. <i>Bishul </i>is violated at the temperature at which the metal can be softened. At the point that metal can be tempered, one violates <i>havarah</i>. The <i>Lechem Mishneh</i>'s approach to this problem is accepted as normative (<i>Shaar HaTziyun</i> 318:1 and <i>Teshuvot Tzitz Eliezer</i> 3:17; see the <i>Chazon Ish</i> O.C. 50:9 for further discussion).
  The <i>Chazon Ish</i> (O.C. 50:9) and Rav Shlomo Zalman Auerbach (<i>Minchat Shlomo</i> 1:107) disagree about the temperature at which one violates the prohibition of heating a metal. The <i>Chazon Ish</i> rules that the violation occurs at the point that the metal becomes <i>yad soledet bo</i> (hot to the extent that one’s hand would recoil when touching it). Rav Shlomo Zalman argues that the heating of metal is halachically insignificant until the metal heated to the point that it appears like a glowing coal. Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> O.C. 1:93) concurs with Rav Shlomo Zalman.
  Incandescent Lamps
  An incandescent bulb essentially consists of a wire that glows due to resistance to the electric current flowing through it. When this form of lighting was introduced during the latter part of the nineteenth century, the <i>poskim</i> discussed whether lighting such bulbs constitutes an act of <i>bishul</i> or <i>havarah.</i> The <i>Maharsham </i>(2:246) suggests that lighting an incandescent bulb merely is a rabbinic prohibition. He argues that an incandescent bulb differs from the fire created in the Mishkan in the desert76<i class="footnote">The parameters of the <i>melachot</i> of Shabbat are derived from the way in which they were performed in the Mishkan (see Shabbat 49b).</i> because it does not consume the fuel that is heated. An incandescent bulb, the <i>Maharsham</i> argues, resembles the biblical burning bush, not the standard fire that was used in the Mishkan. Rav Eliezer Waldenberg (<i>Tzitz Eliezer</i> 1:20:6) vigorously refutes the <i>Maharsham</i>'s suggestion. He points out that the Rambam's opinion that heating a metal until it glows is a violation of <i>havarah</i> clearly indicates that a glowing metal constitutes a fire. Accordingly, the <i>poskim</i> reject the suggestion of the <i>Maharsham</i>. Both the Tchebiner Rav (<i>Teshuvot Doveiv Meisharim</i> 1:87) and Rav Ovadia Yosef (<i>Teshuvot Yabia Omer</i> O.C. 1:19) assert that the <i>Maharsham</i>'s suggestion cannot be utilized even as a <i>senif lehakel</i>, a component in a lenient ruling.
  The <i>Chazon Ish</i> (O.C. 50:9) raises another objection to the use of incandescent bulbs on Shabbat. He claims that since the wires in an incandescent bulb are heated, turning on an incandescent bulb constitutes an act of <i>bishul</i>. Rav Shlomo Zalman Auerbach, however, notes that one does not care that the metal within the bulb is softened and that one does not perceive the softening of the metal within the lamp. Moreover, the metal returns to its original state immediately after the light is extinguished. Thus, argues Rav Shlomo Zalman, Halachah attaches no significance to the fact that the metal is softened. Thus, lighting an incandescent bulb is not considered to be an act of <i>bishul</i>. Rav Moshe Feinstein presents a somewhat similar argument to that of Rav Shlomo Zalman (<i>Teshuvot Igrot Moshe</i> O.C. 3:50).
  Most authorities agree with Rav Shlomo Zalman (<i>Teshuvot Minchat Shlomo </i>1:12) that turning on an incandescent bulb is considered to be an act of <i>havarah</i>. Rav David Tzvi Hoffman (<i>Teshuvot Melamed Leho’il</i> 1:49) states what has emerged as the consensus opinion: “Havarah refers to the creation of light and not the burning of fuel.” Almost all authorities find the analogy between an incandescent bulb and the Rambam's heated metal to be compelling. Rav Chaim Ozer Grodzinsky (<i>Teshuvot Achiezer</i> 3:60), Rav Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 1:20:8), Rav Ben-Zion Uzziel (<i>Teshuvot Mishpetei Uzziel</i> 2 O.C. 36), and Rav Yitzchak Schmelkes (<i>Teshuvot Beit Yitzchak</i> Y.D. 1:120) are some of the other major authorities who rule that causing a filament to glow constitutes an act of <i>havarah</i>.77<i class="footnote">In fact, it is related by many (including Rav Yosef Dov Soloveitchik) that Rav Chaim Ozer Grodzinski rountinely used an incandescent bulb for the fire of Havdalah in order to emphasize to all that an incandescent light constitutes a fire.</i>
  Lighting an Incandescent Bulb on Yom Tov
  The Mishnah (Beitzah 4:7) teaches the well-known rule that although one may transfer fire on Yom Tov, it is forbidden to create a new fire on Yom Tov. The <i>poskim</i> debate whether this constitutes a biblical or rabbinic prohibition (see Bei’ur Halachah 502:1 s.v<i>. Ein Motzi’in</i>). When incandescent bulbs first were introduced, a few prominent <i>poskim</i> permitted lighting an incandescent bulb on Yom Tov, arguing that lighting an incandescent bulb constitutes a transfer of fire rather than starting a fire (see <i>Encyclopedia Talmudit </i>18:178). This approach, however, is rejected by the overwhelming majority of authorities primarily because it emerges from a mistaken understanding of how an incandescent bulb works. Those who permitted this lighting thought that the flow of electrons in the filament is what causes the bulb to glow. They believed that when one completes a circuit, the electrons in the filament then have a path in which to flow and thereby cause the filament to glow. According to this understanding, when one turns on a light, he simply is transferring the electrons. Rav Shlomo Zalman Auerbach (<i>Teshuvot Minchat Shlomo</i> 1:9 n. 5), however, notes that this is an erroneous understanding of how an incandescent bulb operates. The glow does not result from the flow of electrons but rather from the resistance in the wire to the flow of the electrons in the filament. Thus, one clearly creates fire when turning on an incandescent bulb, and as such, doing so is forbidden on Yom Tov. The accepted opinion is that of Rav Shlomo Zalman.78<i class="footnote">Rav Shlomo Zalman Auerbach develops this point at great length in his seminal work on electricity known as <i>Me’orei Eish</i> (ch. 1-3)</i> Among the many authorities who concurred that turning on an incandescent light is forbidden on Yom Tov are <i>Chazon Ish</i> (ad. loc.), Rav Yaakov Breisch (<i>Teshuvot Chelkat Yaakov</i> 1:51), Rav David Zvi Hoffman (<i>Teshuvot Melamed Leho’il ad. loc</i>.), and Rav Ovadia Yosef (<i>Teshuvot Yabia Omer</i> O.C. 1:19).
  Electric Appliances that do not include a Heated Filament
  We now turn our attention to electric appliances where metal is not heated until it glows, such as fluorescent bulbs. The <i>poskim</i> and the Jewish people have accepted that turning on such appliances is strictly prohibited on Shabbat and Yom Tov.79<i class="footnote">In fact, the first point made by Rav Chaim Ozer Grodzinsky in his landmark responsum (<i>Teshuvot Achiezer</i> 3:60) prohibiting turning on electric appliances on Shabbat and Yom Tov is that this prohibition has become accepted among the entire Jewish people. </i> However, it has been challenging to determine precisely why it is prohibited. We shall survey six approaches to this issue and seek to arrive at a conclusion as to whether it constitutes a biblical or rabbinic prohibition.
  Approach #1 – <i>Molid</i>
  Among the first suggestions as to the basis for prohibiting such appliances was
  Rav Yitzchak Schmelkes’s assertion (<i>Teshuvot Beit Yitzchak</i> 2:31 in the addendum) that creating a functioning electric appliance is analogous to the rabbinic prohibition to create a new fragrance in one's clothes on Shabbat and Yom Tov, known as <i>molid reicha</i> (Beitzah 23a). He argues that <i>molid zerem</i>, creating a flow of current into an appliance, is analogous to <i>molid reicha</i>, and accordingly, powering an appliance with electric current constitutes a rabbinic prohibition
  Rav Shlomo Zalman Auerbach (<i>Teshuvot Minchat Shlomo</i> 1:73-74) questions
  Rav Schmelkes’s analogy. He notes that in the case of <i>molid reicha</i>, one intends for the scent to remain in the clothes, and the clothing is not made to have scents added or removed. Electric appliances, on the other hand, are made to be turned on and off. Therefore, one has not truly created anything new. Moreover, Rav Shlomo Zalman notes that <i>Chazal</i> did not forbid the creation of every new substance. For example, they never forbade making juice from fruits that are not normally squeezed for juice.80<i class="footnote">See <i>Gray Matter</i> 2:35-40 for a discussion of the applications of this Halachah to modern times.</i> Thus, one cannot expand the prohibition of <i>molid reicha</i> to <i>molid zerem</i> or to anything else not explicitly prohibited by <i>Chazal</i>, since there is no broad, categorical prohibition to create something new on Shabbat and Yom Tov.
  Approach #2 –<i> Boneh</i>
  The second major approach to prohibit powering electric appliances without a heated element was articulated by the <i>Chazon Ish</i> (O.C. 50:9 and in letters to Rav Shlomo Zalman printed in <i>Teshuvot Minchat Shlomo</i> 1:92-94). He suggests that completing an electric circuit constitutes a Torah-level prohibition of <i>boneh</i> (building), and, conversely, opening a circuit is an act of <i>soteir</i> (destroying). He argues that completing a circuit is analogous to assembling an appliance consisting of many parts (see Shabbat 57a and Shulchan Aruch O.C. 313:6), which is prohibited if one does so in a form that can last. Additionally, the <i>Chazon Ish</i> asserts that when one completes a circuit, he has in effect created a new vessel, since the appliance was unusable before the introduction of the current. Creating a new <i>kli</i> is prohibited as an act of <i>boneh</i> (Shabbat 102b).<i> </i>The Chazon Ish claims that by completing the circuit, one has brought the appliance "from death to life.”
  Rav Shlomo Zalman Auerbach (<i>Teshuvot Minchat Shlomo</i> 1:11) questions these assertions of the <i>Chazon Ish</i>. His primary argument is that an act that is intended to be done and undone on a regular basis is not defined as <i>boneh</i>. Rav Shlomo Zalman sees opening and closing an electric circuit as analogous to opening and closing a door, which does not constitute <i>boneh</i> and undoubtedly is permissible on Shabbat (see Mishnah Berurah 313:45). Rav Shlomo Zalman also questions the assertion that bringing something “from death to life” constitutes an act of <i>boneh</i>. He notes that planting a shoot in the earth or grafting a tree is forbidden as z<i>orei’a </i>(planting) but not as <i>boneh</i>, even though doing so brings the shoot from death to life.
  Approach #3 –<i> Makeh BePatish</i>
  The <i>Chazon Ish</i> (ad. loc.) also asserts that completing an electric circuit constitutes an act of <i>makeh bepatish</i> (literally, “the [final] blow of a hammer”), the <i>melachah</i> that involves finishing a product and making it useful (Rambam <i>Hilchot Shabbat</i> 23:4). Just as the final blow of a hammer transforms a useless item into a functional product, so too one who powers an appliance with electric current changes a useless article into something useful. As precedent, the <i>Chazon Ish</i> cites the ruling of the <i>Chayei Adam</i> (44:19), who forbids winding a watch on Shabbat as a Torah-level prohibition of <i>makeh bepatish</i>.
  Rav Shlomo Zalman (<i>Teshuvot Minchat Shlomo</i> pp. 69-73 and 101-102) again questions the <i>Chazon Ish</i>. He argues, “It is very reasonable to say that something that is done one hundred times a day cannot be classified as Makeh BePatish.” He also writes that he is inclined to believe that “Makeh BePatish applies specifically when an item is missing something significant that craftsmen generally perform and [afterwards] remains this way permanently.” Since, reasons Rav Shlomo Zalman, completing an electric circuit is a simple process that anyone can perform, and it is in fact performed constantly, it cannot be classified as <i>makeh bepatish</i>.
  In addition, the <i>Encyclopedia Talmudit</i> (18:166) notes that all of the great <i>poskim</i> who preceded the <i>Chazon Ish</i> in discussing the use of electricity on Shabbat never even raised the possibility that completing an electric circuit constituting an act of <i>boneh </i>or <i>makeh bepatish</i>. These authorities include Rav Yechiel Michel Epstein,81<i class="footnote">He addressed issues of electricity in an essay published in the Torah journal <i>Beit Vaad LaChachamim</i>.</i> Rav Yitzchak Schmelkes (<i>Teshuvot Beit Yitzchak</i> ad. loc.), Rav David Zvi Hoffman (<i>Teshuvot Melamed Leho’il </i>1:49), and Rav Chaim Ozer Grodzinsky (<i>Teshuvot Achiezer</i> 3:60). Indeed, in Rav Moshe Feinstein's writings addressing the prohibition of turning on electricity on Shabbat, he never presents the <i>Chazon Ish</i>'s approach (see <i>Teshuvot Igrot Moshe</i> O.C. 1:50, 3:42, 4:84, and 4:85). These <i>poskim</i> seem not to accept the assertion of the <i>Chazon Ish</i> that completing a circuit constitutes an act of <i>boneh </i>and <i>makeh bepatish</i>.
  Approach #4 – Sparks
  Both Rav David Zvi Hoffman and the <i>Chazon Ish</i> note that it is prohibited to complete circuits due to the sparks that are created in the process. They argue that the sparks generated when completing an electric circuit fall under the rabbinic prohibition to create sparks from wood or stones (Beitzah 4:7).
  Rav Shlomo Zalman (<i>Teshuvot Minchat Shlomo</i> 1:86-87) strongly questions this assumption. He notes one does not intend to create these sparks; in fact, one does not want them at all, since they wear out the points of contact in a circuit. Although the sparks certainly will be created, the lack of intention and desire for their creation labels the action as a <i>psik reisha d’lo nicha lei</i>, a definite, unintended, undesired result of his actions, which is merely a rabinnic prohibition (Shulchan Aruch O.C. 320:18).<i> </i>In addition, Rav Shlomo Zalman argues that this is considered an unusual manner (<i>k’l’achar yad</i>) to create sparks, since one never completes a circuit with the intention of creating sparks. Accordingly, Rav Auerbach argues that there should be no halachic problem associated with the creation of such sparks.
  He draws an analogy to a ruling of the <i>Dagul MeiRevavah</i> (O.C. 340:3), who permits cutting a cake on Shabbat even though it has letters written on it. This permission is based on the combination of the fact that he has no intention to erase the letters, erasing when not done for the purpose of writing is only a rabbinic prohibition, it is a destructive act (<i>mekalkeil</i>), and this is a <i>k’l’achar yad</i> manner of erasing. Accordingly, since the creation of sparks in general is only a rabbinic prohibition, one does not intend to create sparks when completing an electric circuit, it is an unusual manner to create sparks and the sparks damage the circuit, the creation of sparks when completing an electric circuit does not constitute a prohibited act on Shabbat.
  We should note, though, that the Rama (ad. loc.) does prohibit slicing a cake with letters on it. Although the <i>Shaarei Teshuvah</i> (340:1) fully accepts the ruling of the <i>Dagul MeiRevavah</i>, and the <i>Aruch Hashulchan</i> (O.C. 340:23) essentially supports it, the Mishnah Berurah (340:16) does not fully accept this lenient ruling. Indeed, common practice is to avoid cutting the letters on a cake on Shabbat in harmony with the ruling of Rama.
  On the other hand, the fact that Halachah attaches no significance to something that is not visible to the "naked eye" (see <i>Aruch Hashulchan</i> Y.D. 84:36 and <i>Teshuvot Igrot Moshe</i> Y.D. 3:120:5) is another consideration to discount these sparks. The <i>Encyclopedia Talmudit</i> (18:734) notes that turning on appliances that operate on a relatively low voltage does not make visible sparks. Moreover, the production of sparks depends to a great extent on humidity. Thus, since it is not truly inevitable (<i>psik reisha</i>) that these sparks will be produced, it remains an unintended, non-definite action (<i>davar sheino mitkavein</i>), which is permitted on Shabbat (Shulchan Aruch O.C. 337:1).
  Approach #5 – Increased Fuel Consumption
  Some have suggested that it is forbidden to complete an electric circuit on Shabbat because it leads to increased fuel consumption in the power station. Rav Shlomo Zalman Auerbach (cited in <i>Shemirat Shabbat Kehilchatah </i>1:23 n.137) dismisses this concern for two reasons. Firstly, the connection between one's action and its impact in the power plant is remote and is classified as <i>grama</i> (indirect action). Moreover, in the majority of situations, one's actions do not impact the fuel consumption in the power station.
  Approach #6 – Rav Shlomo Zalman Auerbach
  Rav Auerbach concludes (<i>Teshuvot Minchat Shlomo</i> 1:pp. 84 and 95) that completing an electric circuit and creating a flow of electrons essentially is no different than turning on a faucet and creating a flow of water. He believes that the only technical prohibitions potentially associated with electricity are the actions caused by electricity such as cooking or burning (in an incandescent bulb). Nonetheless, Rav Auerbach rules that it is forbidden to turn on an appliance even if no metal is heated until it glows, since Rav Schmelkes already had ruled on this matter (<i>kvar horeh zakein</i>) and it has been accepted by the Jewish people. Moreover, since people will become confused between appliances that involve heated filaments and those that do not, it is forbidden to turn on electric appliances even if no metal is heated until it glows.
  Conclusion
  Although the <i>poskim</i> are hard-pressed to find a technical prohibition under which to classify turning on electrical appliances that do not involve incandescent bulbs, all agree that it is not permitted. However, a wide variety of halachic authorities assert that the generally accepted position is to regard the prohibition as rabbinic. These authorities include Rav Yehuda Amital (personal communication), Rav David Cohen (personal communication), Rav Moshe Heinemann (in a lecture to the National Council of Young Israel rabbis) and Rav Hershel Schachter (in a lecture to the Rabbinical Council of America). Indeed, Rav Chaim Ozer (<i>Teshuvot Achiezer</i> 3:60) appears to adopt Rav Shlomo Zalman’s approach.
  
  Opening Refrigerators on Shabbat
  
  The question of opening refrigerator doors on Shabbat has been a matter of debate for many decades. In this essay, we will outline the various approaches taken by the<i> </i>great halachic authorities on this issue. For simplicity, we will discuss a situation in which the refrigerator light has been set in such a way that it will not turn on when the door is opened, eliminating that halachic obstacle. We shall focus instead on the concern that opening the refrigerator door causes the compressor to start earlier than it would have had the door remained closed. Opening the refrigerator door allows warm air to enter, thereby causing a rise in temperature, which inevitably will cause the motor to activate sooner.
  It is important at the outset to delineate which specific Halachic issues we are concerned with. Rav Shlomo Zalman Auerbach <i>(Teshuvot Minchat Shlomo</i> 1:10) demonstrates that the possible concern is a rabbinic prohibition, not a biblical one.
  He notes that in most refrigerators, metal is not heated until it glows. He explains that even though there are gases that are heated in the refrigeration cycle, heating these gases does not constitute an act of <i>bishul</i> (cooking). Among his reasons are that the gases are not heated by a fire source (see Rambam's <i>Commentary to the Mishnah</i>, Shabbat 4:1) and that heating a gaseous substance does not constitute <i>bishul</i>.
  Rav Shlomo Zalman continues to explain that even those (see <i>Chazon Ish</i> O.C. 50:9) who rule that completing an electric circuit that powers an appliance constitutes a biblical prohibition of <i>boneh</i> (building) or <i>makeh bepatish</i> (completing an item) would concede that causing the refrigerator motor to go on earlier does not violate these prohibitions, because <i>boneh</i> and <i>makeh bepatish</i> are violated only when turning on the electric appliance. The <i>Chazon Ish</i> (see letter published in <i>Minchat Shlomo</i> 1:11) explains that turning on an electric appliance constitutes <i>boneh</i> because one brings the appliance "from death to life." However, once the refrigerator is plugged in, causing the motor go on earlier does not bring it “from death to life.”
  Moreover, since the motor will turn off by itself shortly after it goes on, only a rabbinic prohibition is violated. An action is biblically forbidden only if the resulting product is a lasting one (s<i>hel kayama</i>). Thus, the only possible prohibition involved in causing the motor to go on earlier is the rabbinic prohibition to cause a current flow (see <i>Teshuvot Beit Yitzchak</i> 2:31). Accordingly, the issue of opening a refrigerator is a question of whether a rabbinic prohibition is violated. Therefore, the possibility of a lenient ruling is considerably greater than if the situation would have involved a potential biblical prohibition.
  Opening the Refrigerator Door While the Motor is Running
  Rav Shlomo Zalman Auerbach argues that opening the refrigerator while the motor is running is unquestionably permissible despite the fact that the motor will remain on for a longer period of time as a result. He reasons that opening the door merely preserves the status quo, and as such is analogous to the Halachah (Shulchan Aruch O.C. 277:2) that one may close a door that is opposite a fire. This is not considered extinguishing because, in the words of the Mishnah Berurah (277:11), "Even though the wind would have magnified the fire [had the door remained open], one does not violate the Melachah of Mechabeh (extinguishing a fire), since he did not perform any action, and if the fire will become extinguished as a result, it is of no concern to us." The <i>Shulchan Aruch Harav</i> (277:1) explains that this action is not considered even an indirect one (<i>grama</i>), since he merely prevented the introduction of an impediment to maintaining the status quo (<i>meniat moneia</i>). Similarly, opening the refrigerator door while the motor is running merely removes an impediment to the motor continuing to run. Almost all <i>poskim</i> concur with this ruling of Rav Shlomo Zalman.82<i class="footnote">See <i>Teshuvot Har Zvi</i> O.C. 1:151, <i>Teshuvot Igrot Moshe</i> O.C. 2:68, and <i>Teshuvot Yabia Omer</i> 1: O.C. 21)</i>
  Opening the Door When the Motor is not Running - Rav Shlomo Zalman's Approach
  The question of opening the door when the motor is not running, however, has engendered much debate. Rav Shlomo Zalman Auerbach rules that it is entirely permissible to do so. In fact, he writes that it is inappropriate to be strict on this matter, as it will limit his Oneg Shabbat (enjoyment of Shabbat) if he is unable to access food at his convenience.
  This lenient ruling is based on the fact that opening up the door will not immediately cause the motor to turn on. The inevitable time delay between the opening of the door and causing the motor to go on leads Rav Shlomo Zalman to classify this as a <i>grama - koach sheini</i> (indirect or secondary reaction).83<i class="footnote">See our later discussion of Shabbat-mode ovens for a more thorough analysis of what is considered <i>grama</i>.</i> It is analogous to the classic case discussed in the Gemara (Sanhedrin 77b) of an individual who ties up his fellow in front of a powerful stream of water stopped by a dam and then releases the dam and thereby kills the victim. If the water killed the person immediately (see Rashi s.v. <i>Girei</i>), then the perpetrator is to be punished with death because he killed directly (<i>koach rishon</i>). However, if the water didn't kill him immediately (i.e. there was a significant time delay between the action of releasing the dam and the rushing waters killing the victim), the perpetrator is not subject to the death penalty, because he has killed indirectly (<i>koach sheini</i>). Similarly, opening the doors and allowing the warm air to flow into the refrigerator will not affect the motor immediately.
  <i>Grama</i> alone is insufficient reason to permit an activity, since the Rama (O.C. 334:22; see <i>Bei’ur Halacha</i> ad. loc. s.v. <i>DeGram Kibui</i>) rules that <i>grama </i>is permitted only in situations of great need. Rav Shlomo Zalman asserts, however, that since one's intention is merely to open the door and not to turn on the refrigerator's motor, <i>grama</i> would be permissible in all situations even absent any unconventional needs.84<i class="footnote">Even though the motor unquestionably will be activated earlier and one in fact is pleased with this activity, making opening the door a <i>psik reisha d’nicha lei</i>, Rav Shlomo Zalman believes that such an action is permissible when done through <i>grama</i>.</i> Moreover, he writes that since he is only causing the motor to go on earlier than it otherwise would have (see <i>Teshuvot Minchat Shlomo</i> 1:91:10), one may treat the act of opening of the door even more leniently than <i>grama</i>. Thus, opening the refrigerator door would be permissible in all situations. Rav Zalman Nechemia Goldberg told me that it is not necessary to close the refrigerator door as soon as possible after opening it according to the approach of Rav Shlomo Zalman, because the reasoning behind the lenient approach applies even if one does not rush to close the door.
  Opening the Refrigerator Door when the Motor is not Running- The Strict Approach
  Many <i>poskim</i> concur with Rav Shlomo Zalman's lenient approach. Indeed, Rav Aharon Lichtenstein told me that Rav Yosef Dov Soloveitchik agrees with the lenient approach. Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> O.C 4:74- <i>Bishul</i> -28) seems to fully accept Rav Shlomo Zalman's ruling (also see <i>Teshuvot Igrot Moshe</i> O.C. 2:68), as does Rav Eliezer Waldenberg (<i>Tzitz Eliezer</i> 8:12 and 12:92). The <i>Encyclopedia Talmudit</i> (18:663 n.13) lists other authorities who subscribe to the lenient approach. Many eminent authorities, on the other hand, either rule strictly (<i>Teshuvot Har Zvi</i> O.C. 1:151, <i>Teshuvot Chelkat Yaakov</i> 3:179, and <i>Teshuvot Minchat Yitzchak</i> 2:16) or at the least recommend that one be strict if possible (Rav Yosef Eliyahu Henkin in <i>Eidut LeYisrael</i> p. 122 and Rav Ovadia Yosef in <i>Teshuvot Yabia Omer</i> 1 O.C. 27). They argue that once an action is performed routinely, it cannot necessarily be classified merely as <i>grama</i>.85<i class="footnote">See Shabbat 120b, Rabbeinu Chananeil <i>ibid</i>. s.v. <i>Rav Ashi</i>, Bava Kama 60a, and the Rosh Bava Kama 6:11.</i> Rav Shlomo Zalman responds that this applies only when one intends to create the resultant action. When opening the door, one does not intend to turn on the motor, and thus it remains <i>grama</i>.
  Conclusion – Caution Necessary
  Common practice is to be lenient on this matter, although some people adopt the strict approach. In fact, the <i>Shemirat Shabbat Kehilchatah</i> (10:12) counsels one who wishes to be strict to set the refrigerator on a timer such that the motor will shut off entirely at certain times and to open the refrigerator only during those times. So doing, one will avoid any connection between opening the door and the activity of the compressor.
  The <i>Shemirat Shabbat Kehilchatah</i> (10:14) also cautions that all opinions agree that it is forbidden to open a refrigerator in which a fan goes on when one opens the door and shuts when he closes the door, just as one cannot open a refrigerator if it will cause a light to go on. A remedy to this problem is to tape the switch or otherwise disconnect the fan before Shabbat. In addition, Rav Shlomo Zalman cautions that his lenient ruling applies only to a refrigerator that works on a compressor system and not to refrigerators that involve a heating element. Rav Shlomo Zalman also expresses concern regarding the defrosting systems of refrigerators. Some models have incorporated an adaptive defrost feature that is triggered by opening the refrigerator door. Moreover, more expensive models have features such as sensors and illuminated digital readouts that introduce Halachic complications. Accordingly, one must exercise caution when purchasing a refrigerator and ensure that he will be able to use it on Shabbat without undue difficulties.86<i class="footnote">For further discussion and guidance regarding potential halachic problems with certain models as well as potential solutions, see the essay in <i>Kashrus Kurrents </i>available at www.star-k.org/kashrus/kk-cooling-keepcool.htm.</i>
  Postscript
  A primary basis of the lenient opinion is that no biblical prohibition is involved in opening a refrigerator door. However, opening an oven door is potentially a more severe issue because opening the door allows cool air to enter the oven, causing the fire to go on, which constitutes a biblical prohibition.
  Accordingly, Rav Moshe Heinemann rules87<i class="footnote">Cited in the above-referenced <i>Kashrus Kurrents</i> essay.</i> that one should not open the door to a lit oven unless he opens the door only one time in order to remove the food so that the burning to follow is unintended (<i>davar she’eno mitkavein</i>), unwanted (<i>psik reisha d’lo nicha lei</i>), and serves no purpose <i>(melachah she’einah tzricha legufa</i>). On the other hand, Rav Dovid Ribiat (<i>The 39 Melochos</i> p. 1220) notes, based on a ruling of Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> O.C. 4:74 <i>Bishul</i> – 28), that “most ovens will not automatically ignite when the door is opened” and that it is permissible to open the doors to these ovens on Shabbat. He cites (n. 86 ad. loc.) an expert who reports, “In general, the thermostats in ovens are not that sensitive to the extent that they would quickly change due to a change in temperature.” One should consult his Rav for guidance regarding this issue.
  
  The Use of Elevators on Shabbat
  
  A major halachic issue in modern life is the use of elevators on Shabbat and Yom Tov. The question has been debated for decades, but there have been distinct periods of both Halachic and technological developments in this area. In this essay, we will attempt to summarize the different approaches taken by the <i>poskim</i> in the past few decades.
  The Earliest Responsa - The Strict Views of <i>Minchat Yitzchak</i> and <i>Chelkat Yaakov</i>
  Both Dayan Yitzchak Weisz (<i>Minchat Yitzchak</i> (3:60) and Rav Yaakov Breisch (<i>Chelkat Yaakov</i> 3:137) forbade using elevators on Shabbat even if they are set to move automatically (“Shabbat elevators”). Dayan Weisz's reasoning is that the rider's additional weight in the elevator cabin causes the elevator to work harder, thereby causing its motor to draw more current. Rav Breisch's argument is quite interesting. He cites Rav Yitzchak Schmelkes' ruling (<i>Beit Yitzchak</i> 2:30) that one is forbidden to ride on a train or trolley on Shabbat. The precedent cited by Rav Shmelkes is a Gemara (Beitzah 25b) that records the rabbinic prohibition to be transported in a sedan-like chair carried by others because this runs counter to the spirit of Shabbat (see Rashi s.v. <i>Ein Hasuma</i>). Rav Breisch proceeds to apply the Beit Yitzchak's ruling to an elevator. Rav Breisch argues, "What is the difference between riding horizontally and [riding] vertically?" Both activities should be forbidden even if the train or elevator is entirely automated. He notes the practice of scrupulously observant Jews to avoid riding on elevators on Shabbat.
  The Earliest Responsa - The Lenient Views of Rav Henkin and Rav Unterman
  Rav Yosef Eliyahu Henkin (<i>Kol Kitvei Harav Henkin</i> 2:59) and Rav Yehudah Unterman (<i>Torah Shebaal Peh</i> 5727 p.13) felt that it is permissible to ride an elevator if one does not push any of the buttons. Rav Henkin points out that Halachah (Shulchan Aruch O.C. 252:5) follows the opinion of Beit Hillel (Shabbat 17-18) that one may arrange (before Shabbat) for his utensils to perform <i>melachah</i> on Shabbat. Accordingly, if the rider performs no <i>melachah</i>, Rav Henkin permits the use of an elevator or Shabbat. Rav Unterman adds, "I have personally witnessed great Torah sages entering an elevator and travelling to the floor for which a non-Jewish passenger pushed the button; they never raised the possibility of their added weight posing a Halachic problem."
  Rav Unterman relates that he was present one Shabbat when the Chafetz Chaim was meeting with other rabbinic figures discussing community matters. When the Chafetz Chaim needed something to be brought to him, one of those present proceeded to ride the elevator along with a non-Jewish passenger to retrieve the item. None of the assembled, including the Chafetz Chaim, objected to his riding the elevator.
  It should be noted that it appears that Rav Moshe Feinstein (see <i>Teshuvot Igrot Moshe</i> 2:80) agrees with Rav Henkin and Rav Unterman's ruling that if the elevator is not operated by a Jew and a non-Jew has not been instructed to operate the elevator, one may ride in it on Shabbat.
  Rav Halperin's Resolution
  Based on the heretofore cited rulings, it would appear that Rav Henkin and Rav Unterman's ruling should be considered normative Halachah. Rav Breisch's novel approach comparing elevators to trains received almost no support from other halachic authorities.88<i class="footnote">See chapter 17 of <i>Maaliot B’Shabbat</i>; Rav Hershel Schachter told me that Professor Zev Lev told him that Rav Yaakov Kaminetzsky did not concur with the ruling of the <i>Beit Yitzchak</i> upon which the <i>Chelkat Yaakov</i> bases his ruling.</i> Also, increasing current is permitted by most authorities in case of considerable need.89<i class="footnote">See Teshuvot <i>Minchat Shlomo</i> 1 p. 74, who notes the common practice to engage in conversation with individuals who wear hearing aids despite the fact that this causes increased current flow in the hearing aid.</i> Moreover, the increased current flow is caused indirectly (<i>grama</i>) because when one enters the elevator, the motor is not operating. Only when the elevator begins to ascend does the flow of current increase. Performing <i>melachah</i> on Shabbat indirectly is permitted in case of exceptionally great need (see Shulchan Aruch O.C. 334:22 and <i>Bei’ur Halacha</i> ad. loc. s.v. <i>Digram</i>).
  This would appear to be analogous to the case of the Gemara (Sanhedrin 77a) known as "<i>sof chamah lavo</i>." This passage describes a case in which one ties someone up and leaves him in the desert at night, whereupon the encroaching sun kills the victim the next day. Rashi (s.v. <i>Sof Chama</i>) explains that since the killing agent (i.e. the sun) was not present when the perpetrator tied up the victim, the murder was committed indirectly (<i>grama</i>), and, accordingly, the criminal will be punished by God, not by <i>beit din</i>. Similarly, when one enters the elevator, the motor is not operating; it is only when the elevator is in motion that his weight causes an increase in current. This argument appears to be made by Rav Shlomo Zalman Auerbach (cited in the <i>Shemirat Shabbat Kehilchatah</i> 1:305 end of n. 140).90<i class="footnote">In addition, see <i>Maaliot B’Shabbat</i> pp.172-174, where Rav Levi Yitzchak Halperin notes that the increased current is caused by the passenger so indirectly that the passenger's actions are even beyond the pale of <i>grama</i> and instead fit into the category of "<i>meniat moneia</i>," preventing a preventive act from occurring.</i> Accordingly, the increased current appears not to be a serious problem and one may take an ascending elevator. Rav Hershel Schachter told me, though, that this should be avoided if at all possible.
  However, Rav Levi Yitzchak Halperin, director of the Institute for Science and Halachah in Jerusalem, published a work on elevators entitled <i>Maaliot B’Shabbat</i> that revolutionized the way many halachic authorities view elevator usage on Shabbat. Rav Halperin notes in the introduction to the book that he invested no less than sixteen years into investigating the halachic challenges posed by elevator usage on Shabbat. Rav Halperin relates that he travelled many times to Europe and the United States to meet with leading elevators manufacturers in the world including Otis, Westinghouse, and Schindler. His conclusion is that one may ascend in an automated elevator but may not descend unless special modifications have been made to avoid halachic pitfalls. Rav Halperin's conclusion is just the opposite of what had been asserted by earlier <i>poskim</i>. It previously had been assumed that taking an ascending elevator posed the most serious problems. Rav Halperin insists that riding an ascending elevator is permitted, but that riding a descending elevator is fraught with halachic problems.
  Rav Halperin's Arguments
  Rav Halperin points out that the weight of the passenger riding on the elevator assists the elevator's motor in the descent of the elevator. He writes, "If the passenger is responsible for the descent, he is responsible also for illuminating the various lamps, connecting the door motor, the brakes, and numerous other electric circuits which are activated during the descent (<i>Maaliot B’Shabbat</i>, p. 11 of the English section)."
  Rav Halperin points out another problem associated with descending in an elevator. He writes:
  When the car is descending with a heavy passenger load it may speed up to a point where the counter-force developed in the motor is greater than the force of the electric power station. When this condition occurs, the motor, rather than aiding the descent, is used to brake the car thus preventing dangerous overspeed. When the speed of a motor increases to a value above that for which it was designed, it automatically becomes a generator. Instead of consuming electrical energy it generates power which is fed into the electric company lines to be used by consumers in the immediate vicinity [p. 19 of the English section of <i>Maaliot B’Shabbat</i>].
  Mr. Y. Kornbluth of Brooklyn, New York, an engineer who advised Rav Halperin on this matter (see <i>Maaliot B’Shabbat</i> p. 16), told me in January 1995 that one used to be able to perceive this phenomenon at the World Trade Center at times of peak usage of the descending elevators (around five o'clock in the afternoon). The lights would burn brighter than usual because of the power generated by the descending elevators. Others respond, though, that this situation is unique to unusually tall buildings during high volume usage.
  Rav Halperin vs. Rav Shlomo Zalman Auerbach
  We now will focus on five core areas of dispute between Rav Halperin and Rav Shlomo Zalman Auerbach. Rav Shlomo Zalman challenges Rav Halperin's approach and suggests that it may be permitted to ride on a descending elevator. His opinion is recorded and discussed at length in <i>Shemirat Shabbat Kehilchatah</i> (23:49 especially n. 140). We will cite a few of the proofs alluded to by the advocates of both sides of the issue to give the reader a richer appreciation of these fascinating debates.
  Dispute #1 - Performing a <i>Melachah</i> that Would Have Occurred Even Absent His Action
  Rav Shlomo Zalman suggests, "Since the passengers did not cause any change in the pace of the elevator, either faster or slower, for even without the passengers everything would have occurred exactly the same, it is considered that the passengers’ actions are irrelevant and Halachically insignificant."
  Rav Shlomo Zalman cites numerous proofs to this suggestion. One source is the Mishnah (Shabbat 12:5) that teaches that one who writes two letters in black ink upon two letters already written in black ink (<i>k'tav al gabei k'tav</i>) does not violate the prohibition of writing on Shabbat. The Ramban (ad. loc. s.v. <i>Konketom</i>) and Ritva (ad. loc. s.v. <i>Katav</i>) both explain that theoretically, this act should have been defined as writing, since the previously written letter is “erased” and a new letter created in its place. Nonetheless, the Gemara does not define this act as writing because the writer has not accomplished anything. One violates Shabbat when he engages in "<i>melechet machshevet</i>," accomplishing a goal to produce something new. When one does not add to what was previously in existence he has not engaged in <i>melechet machshevet</i> and has not violated Shabbat.
  Rav Halperin (see chapter nine of <i>Maaliot B’Shabbat</i>) vigorously disputes Rav Shlomo Zalman's proofs and cites proofs to prove the contrary. One example is the Gemara (<i>Keritut</i> 20a) that teaches (see Rashi and Rabbeinu Gershom ad. loc.) that one who has two candles in front of him, one lit and one not lit, and simultaneously extinguishes one candle and lights the other has violated Shabbat. We see from here that even one has not accomplished anything new, he is considered to have performed <i>melachah</i> on Shabbat. Moreover, Rav Halperin points out that additional passengers' weight slightly increases the velocity of the elevator.
  Dispute #2 - Is a Person Responsible for the Actions of His Weight?
  Rav Levi Yitzchak Halperin (see chapter seven of <i>Maaliot B’Shabbat</i>) also seeks to demonstrate that one is halachically responsible for the effects of his weight even if he is standing still. One of Rav Halperin's proofs is a Mishnah (<i>Kilayim</i> 8:3) that states, "One who drives a team of <i>Kilayim</i> [mixed animals] is punished with Malkot [forty lashes], and he who rides in the wagon [which causes the mixed animals to plow] also is punished with Malkot. Rav Meir excuses the person who sits in the wagon from Malkot."
  Both the Rambam (<i>Hilchot Kilayim</i> 9:9) and the Shulchan Aruch (Y.D. 297:12) rule in accordance with the first opinion in the Mishnah.
  Rav Halperin concludes from this Mishnah that even if one is sitting in the wagon absolutely motionless and it is merely his weight that causes the animals to plow, he is halachically responsible for the result. Similarly, even though the rider in an elevator is motionless and only his weight causes the elevator to descend, the person is responsible for the actions of his weight. Dayan Weisz (<i>Minchat Yitzchak</i> 3:60) seems to concur with this view.
  Professor Zev Lev (<i>Techumin</i> 5:63) seeks to counter this argument. Professor Lev argues that the act of sitting down in the wagon (rather than merely being seated) is what causes the animals to move. Professor Lev also mentions the fact that many great halachic authorities and Chassidic masters traveled on steam powered ships on Shabbat even though they knew that the ship consumes more fuel if it carries more weight. Professor Lev cites this "<i>maaseh rav</i>" (actions engaged in by eminent scholars) as proof that these authorities believed that the passengers are not halachically responsible for the actions caused by their weight.91<i class="footnote">It should be noted that <i>maaseh rav</i> is a significant proof in Jewish law. What great sages did is at least as important, if not more important, than what they said. The Talmud is replete with stories about the actions of the various <i>Tanna’im</i> and <i>Amora’im</i>. Stories abound concerning the halachic practices of the great sages until this very day, and they are taken quite seriously by halachic authorities. See, for example, Rav Moshe Shternbach's <i>Teshuvot V’hanhagot</i>, where the author cites innumerable instances of the halachic practices of the great sages of the past hundred years.</i>
  Professor Lev cites the celebrated responsum of Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> O.C. 1:132), who permits a relative or friend to accompany a woman about to give birth to the hospital on Shabbat. Professor Lev notes that Rav Moshe writes explicitly that no additional <i>melachah</i> is performed due to the presence of the extra passenger. He apparently is not concerned about the increase in fuel consumption due to the weight of the extra passenger.
  Professor Lev explains that most people are unaware of the impact their weight has on the operation of the elevator. They intend only to reach their destination and are not concerned with the effect of their weight on the motor's function. He cites an important comment made by the <i>Maggid Mishneh</i> (commenting on Rambam <i>Halachot Shabbat</i> 12:2) that absent intention and awareness, one cannot be considered to be engaged in <i>Melachah</i>. The Magen Avraham (318:36) approvingly cites this comment, and Rav Meir Simchah of Dvinsk termed this comment of the Maggid Mishneh a "beautiful jewel" (<i>Ohr Sameach</i> to Rambam <i>Hilchot Shabbat</i> 12:2).
  Professor Lev compares riding in an elevator to a situation in which one is sitting in at the Shabbat table on Friday night during the winter with the window closed. In this situation, the inhaling of oxygen and exhaling of carbon dioxide impacts the flames of the Shabbat candles. No halachic authority has written that this constitutes a problem, because this phenomenon is beyond one's intention, concern, and awareness. Similarly, the impact of one's weight on the operation of the elevator is beyond the intention, concern, and awareness of the rider and thus should not constitute a halachic problem. Avi Levinson responds that the effect on the candles is not noticeable, but the effect on the elevator is very noticeable if it causes lights to go on more brightly somewhere and the velocity to change. Also, it is most likely that we are dealing only with a rabbinic prohibition in the case of the candles (for many reasons; one reason is that the <i>melachah</i> is done <i>k’l’achar yad</i>, in an unusual manner) and <i>Chazal</i> did not issue a decree to cause people to suffocate or freeze; it is not so clear the same would apply to elevators (even if only rabbinic prohibitions are involved).
  Dispute #3 - <i>Mesayei’ah Ein Bo Mamash</i>
  Rav Shlomo Zalman presents another reason why the passenger is not halachically responsible for the effects of his weight on the operation of the elevator. The Mishnah (Shabbat 10:5) teaches that if two people do a <i>melachah</i> that could have been accomplished by one person, then both parties have not violated a biblical prohibition. The Gemara explains that one transgresses a biblical violation of Shabbat only if he performs a complete <i>melachah</i> and not merely a part of one. However, both parties have violated a rabbinic prohibition. This scenario is referred to as “<i>zeh yachol v’zeh yachol</i>.”
  On the other hand, if both parties are required in order to successfully perform the Melacha, then both have violated a biblical prohibition. This category is called “<i>zeh eino yachol v’zeh eino yachol</i>.”
  A third situation is when one person is capable of performing the <i>melachah</i> without assistance but performs the <i>melachah</i> together with a weaker individual who is unable to perform the task alone. This scenario is called “<i>zeh yachol v’zeh eino yachol</i>.” The actions of the individual who is unable to perform the <i>melachah</i> without the assistance of the other party is described by the Gemara as “<i>mesayei’ah ein bo mamash</i>,” “One who merely assists has no significance.”
  The <i>Acharonim </i>debate whether the one who assists violates a rabbinic prohibition (Taz, Y.D. 198:21) or violates no prohibition altogether (Shach, <i>Nekudat Ha-Kesef</i>, Y.D. 198:21). The Mishnah Berurah (328:11) and the <i>Aruch Hashulchan</i> (O.C. 328:20) rule in accordance with the lenient view of the Shach that one who merely assists has violated no prohibition.
  Rav Shlomo Zalman Auerbach believes that the elevator passenger is “<i>mesayei’ah ein bo mamash</i>,” a mere “aide” to the elevator, and thus the passenger is not responsible for the effect his weight has on the motor’s functioning. He reasons that, “It is considered as if the elevator is capable of performing the task alone and the passenger merely assists the elevator, because the elevator is set to ascend and descend regardless of whether anyone enters it.”
  Rav Halperin seeks to disprove this argument (see chapter 10 of <i>Maaliot B’Shabbat</i>). Rav Halperin argues that for someone to be defined as “<i>eino yachol</i>,” it does not require that the individual be incapable of performing the task alone. Rather, if in a particular situation the individual is incapable of performing the task alone, he is defined as “<i>eino yachol</i>.” The source for this assertion is a Tosefta (Shabbat 12:10, cited by the Rambam <i>Hilchot Shabbat</i> 11:14), which states that, “If a minor holds a quill and an adult holds the minor’s hand and writes, the adult violates a Biblical prohibition. If the adult holds the quill and a minor holds the adult’s hand and writes, the adult has not violated a Biblical prohibition.”
  The <i>Ohr Sameach</i> (commenting on the aforementioned Rambam) explains that in the latter scenario, the adult is defined as an “e<i>ino yachol</i>” and thus has not transgressed a Torah-level prohibition. Rav Halperin points out that even though an adult normally is capable of writing without assistance, he nonetheless is defined as an “e<i>ino yachol</i>” in the scenario outlined by the Tosefta. Accordingly, Rav Halperin concludes:
  Therefore, if because of passenger’s weight in the elevator the current flow in the motor is reduced to the extent that with that amount of current flow it would not be capable of moving the elevator downward, the elevator is defined as an “Eino Yachol” and the passengers are responsible for the descent of the elevator. This applies whether the passenger weight suffices to move the elevator without the motor’s assistance (passengers = “yachol”; elevator = “eino yachol”) or whether the passenger weight works in combination with the motor to move the elevator downward (passenger = “eino yachol”; elevator = “eino yachol”).92<i class="footnote">Professor Lev and Rav Yisrael Rozen attempt to refute this argument in essays published in <i>Techumin </i>(5:70-72 and 86-93).</i>
  Dispute #4
  A fourth argument is suggested by Rav Shlomo Zalman and further developed by Rav Yisrael Rozen (<i>Techumin </i>5:83-86). The source for this point is <i>Tosafot</i> (Pesachim 25b s.v. <i>Af </i>and Sanhedrin 74b s.v. <i>V’ha Ester</i>) who elaborate on the Gemara’s rule that one must sacrifice his life rather than kill another (“<i>yeihareg v’al ya’avor</i>”). The basis for this rule is in the celebrated phrase, “How do you know that the other person’s blood is not redder than yours? (see Rashi ad.loc.).”
  <i>Tosafot</i> add:
  In a situation where one is not actively killing, such as if bandits threaten to push someone onto a baby to kill it, it appears that one is not required to sacrifice his life rather than cooperate in this terrible deed. The reason for this is that he can claim, “How do you know that the baby’s blood is redder than my blood,” since he is merely <i>passively</i> cooperating in the murderous act.
  Rav Shlomo Zalman reasons that:
  If a Jew was coerced by a non-Jew to enter a descending elevator under which a baby was placed in order to be crushed, the Jew does not have to sacrifice his life rather than enter the elevator, even though he performs an action by entering the elevator. This is because entering the elevator is not contributing to the murder of the baby, because the elevator would have killed the infant even if he didn’t enter the elevator. Similarly, as far as the laws of Shabbat are concerned, entering the elevator should not be considered as significantly contributing to the elevator’s descent.
  Rav Yisrael Rozen further elaborates on this point. He reasons that one is not using his weight to cause the elevator to descend. Rather, the elevator’s motor is utilizing the passenger’s weight to cause the elevator to descend. The person is not using his weight to effect a result; the elevator is using the passenger’s weight to effect a result. Thus, the passenger is not responsible for the affect of his weight on the elevator’s descent. Rav Shlomo Zalman also notes that one is considered to be affecting the motor only indirectly.
  One may counter argue that willingly entering an elevator and standing passively while the elevator uses his weight is not analogous to the scenario described by <i>Tosafot</i>. Rav Hershel Schachter points out that in <i>Tosafot</i>’s scenario, there is coercion from the beginning, whereas the passenger willingly enters the elevator. Rav Halperin develops this point (see chapter eight of <i>Maaliot B’Shabbat</i>). He notes that one is forbidden to willingly put himself into a situation in which he will later be forced to desecrate Shabbat. Rav Halperin’s source for this assertion is the Shulchan Aruch (Y.D. 266:4), Shach ad. loc. 6, and Bei’ur Hagra ad. loc. 10. However, the Mishnah Berurah (248:2) cites opinions that permit one to willingly enter a situation on Shabbat in which he will likely be forced to desecrate Shabbat if he does so for the sake of fulfilling a mitzvah.
  Dispute #5
  We mentioned Rav Halperin's concern that when an elevator carries a heavy load, the motor turns into a generator and produces electricity that is fed into the power lines. Rav Halperin writes that this involves a Torah prohibition, since the generator powers various machines and appliances that perform many <i>melachot.</i>
  Professor Lev (<i>Techumin </i>5:65-73) responds with factual and halachic arguments. He points out that in reality, no new current flow is created by added passenger weight. He also argues that any power that is generated by the elevator is dissipated in the electric wire and is of no use.
  Furthermore, even if Rav Halperin were to be correct factually, the problem would constitute a rabbinic prohibition, not a biblical one, because the creation of the power is a <i>melachah she'einah tzricha l'gufa</i>, a situation where one intends to perform a <i>melachah </i>but it was not his <i>purpose</i> to perform that <i>melachah</i>. A classic Talmudic example is one who digs a hole with the sole intention of collecting dirt and is unconcerned with the usual purpose of preparing the ground for planting. The Gemara (Shabbat 93b) cites a dispute regarding whether such a <i>melachah</i> is forbidden biblically (Rabi Yehudah) or rabbinically (Rabi Shimon). Although the Rambam (<i>Hilchot Shabbat</i> 1:7) rules that it is biblically forbidden, most <i>Rishonim</i> rule that it is rabbinically forbidden (see <i>Ra’avad</i> ad. loc., Shulchan Aruch O.C. 316:8, and Mishnah Berurah 316:34). Accordingly, Professor Lev argues, if indeed the elevator motor is turned into a generator and powers many machines and appliances, only a rabbinic prohibition is violated. He argues that the intention of the elevator passenger is to descend to lower floors and not to create a generator. Thus, the passenger's action can be deemed a <i>melachah she'einah tzricha l'gufa</i>.
  Rav Halperin disputes this point. He argues that "The passengers require and therefore desire that power be generated by his weight and utilized, for otherwise the car speed increases without control and it is impossible to slow down and stop except by emergency measures."
  Halachah <i>L'Maaseh</i> - A Compromise
  We have seen at length that both sides of the elevator debate have presented compelling arguments for their positions. Thus, it is difficult for a halachic authority to decide which opinion to follow. It is helpful to note that (providing one accepts Professor Lev's facts and argument) the entire debate is whether or not one violates a rabbinic prohibition. Moreover, Rav Halperin writes (see <i>Maaliot B'Shabbat</i> ch. 2) that since the electric circuits that are completed in the course of elevator usage last only briefly ("<i>eino mitkayeim</i>"), only a rabbinic prohibition is violated. If, however, the lights displaying the floor numbers are incandescent, then a biblical prohibition perhaps may be involved. One may argue, on the other hand, that since these lights are turned on only momentarily, they too are "<i>eino mitkayeim</i>" and thus only a rabbinic prohibition is violated.
  Accordingly, it appears appropriate to follow the decision made by Rav Shlomo Zalman Auerbach (cited in n.140 of <i>Shemirat Shabbat Kehilchatah</i> ch. 23) that "One should not rebuke those who are lenient and ride on a descending automatic elevator." Therefore, although, one should make every effort to avoid using a descending automatic elevator, he may rely on the lenient opinions when absolutely necessary. Rav Mordechai Willig stated that one should make every effort to move into an apartment on a low floor to avoid having to rely on the lenient opinions regarding elevators. Rav Halperin makes very compelling arguments and his opinion should be followed except in a situation of great need.
  Electronic Weighing Mechanisms and Sensors
  A complicating factor in this question is the presence of electronic weighing mechanisms and sensors in more modern elevators. One activates these electronic mechanisms when entering the elevator. Rav Halperin (see ch.15of <i>Maaliot B'Shabbat</i>) addresses this problem. He notes that these electronic weighing mechanisms measure the weight of the passenger load and transmit the information to the control system. It informs the control system about conditions such as "passenger in car," "full load," or "overload" and other information that enables proper control of acceleration and deceleration.
  Among the steps taken by both Rav Halperin's Institute for Science and Halachah and the Zomet Institute93<i class="footnote">The Zomet Institute is an establishment in Alon Shevut, Israel that seeks to find engineering solutions for many contemporary halachic challenges</i> in order to modify elevators for Shabbat use is to disconnect the electronic weighing mechanisms, as they pose a serious problem. Perhaps in case of great need or in case one does not have the opportunity to research if a particular elevator is equipped with these devices, one can rely on a <i>s’feik s’feika</i> (double doubt). Perhaps the elevator is not equipped with weighing devices, and even if it is, perhaps the weighing devices work through increasing current and not completing a circuit (see <i>Maaliot B'Shabbat </i>p.183). One should consult his Rav regarding this question. Another serious problem corrected by Rav Halperin's institute and the Zomet Institute are the electric sensors present on elevators. One should do his best to avoid triggering the sensors on more modern elevators.
  Specially-Designed Shabbat Elevators
  Rav Halperin's Institute for Science and Halachah modifies elevators so that the passengers' weight has no impact on the elevator's descent. The Zomet Institute also modifies elevators that accommodate some of Rav Halperin's concerns (such as eliminating the use of incandescent bulbs) but takes a somewhat more lenient (and far less expensive) approach to this issue.94<i class="footnote">The details of how the Zomet Institute modifies elevators for Shabbat are described in Techumin (5:96-99). See Rav Gershon Tannenbaum’s article (<i>Jewish Press</i>, October 23, 2009 page 53) which strongly questions the credibility of the announcement made in 2009 that many leading Israeli <i>poskim</i> forbade the use of all elevators on Shabbat. Rav Tannebaum also records that in the 1950’s Rav Aharon Kotler approved of what was arguably the first Shabbat elevator, which serviced guests in the Pioneer Hotel in upstate New York. </i>
  Automatic Escalators
  There is one area where it seems that one may be lenient: the use of automatic escalators on Shabbat. Rav Neuwirth (<i>Shemirat Shabbat Kehilchatah</i> 23:52) permits the use of automatic escalators on Shabbat because the concerns detailed by Rav Halperin regarding an elevator seem not to apply to escalators. This ruling is of great significance in communities such as Hong Kong where it is very difficult to get from one section of the city to another without using escalators.
  
  The "Sabbath Mode" Oven Controversy
  
  Sivan 5768 saw a pronouncement of leading <i>poskim</i> in both Israel and North America forbidding pressing buttons on Sabbath-mode ovens on Yom Tov. A permissive ruling previously had been issued by Rav Moshe Heinemann, the rabbinic administrator of the Star-K certification service. We shall present the basis for Rav Heinemann's ruling (as I understand it) based on both Hebrew and English language articles available from the Star-K website and the reasoning of the many <i>poskim</i> who strongly object to his approach.
  Background - <i>Grama</i>
  Since Sabbat-mode ovens allow for raising and lowering the temperature in an oven by means of <i>grama</i>, indirect action, it is necessary to review the application of <i>grama</i> in the modern environment.
   The Torah <i>(Shemot</i> 20:10) states "<i>lo ta'aseh chol melachah</i>," “Do not perform <i>melachah</i>”on Shabbat. The Gemara (Shabbat 120b) infers that “performing” a <i>melachah</i> is forbidden, while indirectly causing <i>melachah</i> is not forbidden. Despite this seemingly all-encompassing permission, we shall see that leniencies based on <i>grama</i> have been created only in limited circumstances
  Earlier, we explored the issue of <i>grama</i> in the context of refrigerators. We presented the ruling of Rav Shlomo Zalman Auerbach permitting the opening of a refrigerator door even when the motor is not running despite the fact that opening the door inevitably will trigger motor activity earlier than if the door had not been opened. In short, Rav Auerbach ruled that the impact of opening the door on the motor is indirect, and <i>grama</i> is not prohibited when one does not intend to cause the result. Since one who opens the door intends to take food and not to trigger the motor, indirectly causing the motor to go on earlier is not prohibited on Shabbat or Yom Tov.
  There are cases, however, where <i>grama </i>is permitted even when one's intention is to cause the resulting act. For instance, the Shulchan Aruch (O.C. 334:22) permits one to place barrels of water in the path of a fire so that the heat will burst the barrels, causing the water to surge forth and extinguish the fire. The Rama (ad. loc., based on the <i>Mordechai Shabbat</i> 399) cautions, however, that the permission to intentionally perform an act of <i>grama</i> is limited to cases of avoiding great loss, such as putting out a fire. The <i>Bei’ur Halacha</i> (ad. loc. s.v. <i>DeGram Kibui</i>) clarifies that this rule applies to all of the 39 <i>melachot</i> (forbidden activities) of Shabbat and not only to <i>mechabeh</i> (extinguishing).
  The Rama understands that <i>Chazal</i> created a rabbinic prohibition to indirectly cause Melachah on Shabbat in situations other than a case of great need. Danger to life is not required to permit <i>grama</i>; rather, great need is sufficient cause. In other words, <i>grama</i> is permitted for essential needs even if they are not life-threatening needs. This restriction seems to stem from concern that if <i>grama</i> was permitted in all situations on Shabbat, Shabbat observance would be eviscerated, as all work could be accomplished on Shabbat indirectly. The Ramban (commentary to <i>VaYikra</i> 23:24) notes that due to this concern, <i>Chazal</i> forbade a host of activities, such as engaging in business deals and asking a non-Jew to perform <i>melachah</i> on one's behalf. <i>Chazal</i> wished to avoid one who on the one hand does not technically violate Shabbat but on the other has not observed a meaningful Shabbat.
  Contemporary Applications of <i>Grama</i>
  The Gemara (Sanhedrin 77a) presents a situation referred to as "<i>sof chamah lavo</i>," a case where one ties up another individual in the desert during the night and the sun rises the subsequent day and the victim dies due to the heat. The Gemara classifies this as an act of <i>gram retzichah</i> (indirect killing). Rashi (ad. loc. s.v. <i>Kofto</i> and s.v. <i>Oh ShePara</i>) explains that because the killing agent was not present at the time of the perpetrator's action, the murder is classified as indirect.
  The <i>Chazon Ish</i> (O.C. 38:4) applies the <i>sof chamah lavo</i> principle to solve the problems involved in milking cows on Shabbat.95<i class="footnote">See <i>Gray Matter</i> 1:200-214.</i> He permits attaching the milking-machine pipes to the cow's udder before the electric flow begins. The machine can subsequently be turned on by a timer, and the one who attached the pipes to the udder is considered to have milked indirectly. Since the electricity is not flowing when the pipes are attached, it is analogous to the sun not being present when the individual tied up another person in the desert. The <i>Chazon Ish</i> permits this due to the great need to milk cows on Shabbat resulting from both the suffering of the cows and the severe financial strain on dairy farmers.
  Another application is the <i>Shemirat Shabbat Kehilchatah</i>‘s permission (13:25) to adjust certain timers to turn on a light earlier than scheduled in case of great need. Once again, since the electricity is not flowing when the timer is adjusted, it is comparable to the sun not being present at the time when the victim is tied up.
  The Zomet Institute, produces many items that operate using the <i>sof chamah lavo</i> principle for use in highly essential, non–life-threatening situations. These gadgets include wheelchairs, hospital equipment, and vehicles for patrolling areas in Israel that are not exceptionally dangerous.96<i class="footnote">For an explanation of why <i>grama</i> is preferable to <i>amirah lenochri</i>, instructing a non-Jew to perform <i>melachah</i>, see Rav Yaakov Ariel's essay in <i>Techumin</i> (19:343-348) and Rav Shmuel David's <i>Teshuvot MeiRosh Tzurim</i> (36). Avi Levinson notes that these mechanisms seem to run counter to the Rosh (Bava Kama 6:11; cited earlier in the chapter discussing refrigerators) that a routine system cannot be classified as grama. Even according to Rav Shlomo Zalman Auerbach who believes that the Rosh applies only when one intends to create the resultant action, it would appear that all of the contemporary systems that are set up to be routinely run via <i>grama</i> are no longer regarded as <i>grama</i>. </i>
  One could respond that the Rosh applies to systems used routinely in ordinary circumstances. For example, the <i>Even HaOzeir</i> (O.C. 328) applies the Rosh to a water powered mill and Rav Chaim Ozer Grodzinsky (<i>Teshuvot Achiezer</i> 3:60) applies the Rosh to a conventional electric light. However, the <i>Chazon Ish</i> and those following in his footsteps are dealing with activities such as milking cows and using an electric wheelchair that are not usually performed via <i>grama</i>. 
  A popular Zomet product is their "<i>grama</i> phone," which operates in a similar manner to their other products. When one raises the receiver, no electric circuit is completed (unlike in a conventional phone). Instead, an electric pulse is sent out by the phone every ten seconds or so to detect if the receiver has been lifted. When it detects that the receiver has been lifted, the circuit is completed. Yet again, the absence of the pulse when one lifts the telephone parallels the sun that is not at hand when the tying is completed. Rav Ovadia Yosef endorses the use of the <i>grama</i> phone for essential needs in a brief responsum printed in <i>Techumin </i>(1:518). The <i>grama</i> phone is used in many venues in Israel, especially in the Israel Defense Forces, which has purchased hundreds of these phones for use in essential, non-critical situations on Shabbat. <i>Grama </i>phones have greatly enhanced Shabbat observance in the IDF, as a <i>grama</i> phone is used instead of a regular phone except in case of a full-fledged emergency.
  We should note that Rav Yosef Dov Soloveitchik (cited by Rav Hershel Schachter in his <i>B’Ikvei HaTzon</i> pp. 44-45) does not subscribe to the <i>Chazon Ish</i>'s application of the <i>sof chamah lavo</i> principle. Rav Soloveitchik argues that since the electricity is operational when one performs his actions, it is not analogous to the classic cases of indirectly extinguishing a fire or <i>sof chamah lavo</i> where the "active item" is not present when one acts. One may respond97<i class="footnote">See my essay printed in Yeshiva University's <i>Beit Yitzchak</i> (35:382-383).</i> that in the classic cases, the natural forces are moving the fire and the sun (from a common-sense perspective) are extant when the action is performed, just as the electricity moving the timer is present at the time when one acts. Accordingly, it would be accurate to say that the timer itself parallels the classic fire and sun rather the electricity driving the timer. The electricity parallels the natural forces that drive the sun and fire.
  Rav Heinemann's Application to Shabbat-Mode Ovens
  Rav Heinemann argues that <i>grama</i> is permitted in all situations on Yom Tov. He bases this on a ruling of the Rama (O.C. 514:3) that on Yom Tov, one is permitted to place a candle in a location where the wind is not currently blowing but a strong wind later will come and extinguish the fire. The Magen Avraham (ad. loc. 5) questions why the Rama does not limit this ruling to a case of great need as he did in the aforementioned context of extinguishing a fire on Shabbat. The <i>Sha'ar HaTziyun</i> (514:31) cites the <i>Ma'amar Mordechai</i>, who writes that "perhaps" Yom Tov differs from Shabbat in that only on Shabbat does the Rama limit <i>grama</i> to a case of great need.98<i class="footnote">The Vilna Gaon (<i>Bei’ur HaGra</i> O.C. 514:3 s.v. <i>Umutar</i>) seems to permit <i>grama</i> on Yom Tov even not in case of great need and the Taz (O.C. 514:6) permits <i>grama</i> on Yom Tov in case of “some need” even if it is not a great need. </i> On Yom Tov, though, the Rama agrees that <i>grama</i> is permissible in all situations. Rav Heinemann understands the <i>Sha'ar HaTziyun</i> as a full endorsement of this distinction99<i class="footnote">Avi Levinson notes that Mishnah Berurah (514:25) seems to support Rav Heinemann’s understanding. </i>.
  Rav Heinemann applies this to an oven that is modified with a "Sabbath-mode" adjustment with a random time-delay feature. He permits pressing keys on a keypad, since nothing happens when one does so. Instead, the oven will randomly check the settings and adjust the temperature accordingly. There is an interval of between fifteen and twenty-five seconds before the heating element is activated in such specially-modified ovens. Rav Heinemann permits pressing the keys in all circumstances on Yom Tov, since he believes that <i>grama</i> is permitted in all circumstances on Yom Tov.
  Criticism of Rav Heinemann's Ruling
  Rav Heinemann’s ruling spawned a flurry of rulings from many top-level <i>poskim</i> in Israel and North America forbidding pressing buttons on Yom Tov. These authorities include Rav Yosef Shalom Eliashiv, Rav Moshe Shternbuch and Rav Shmuel Wosner in Israel as well as Rav Yisroel Belsky, Rav Feivel Cohen, Rav Shmuel Fuerst, and Rav Mordechai Willig in the United States. In addition, those who follow Rav Soloveitchik's definition of <i>grama</i> certainly do not subscribe to Rav Heinemann's approach, for according to Rav Soloveitchik, electricity does not fall under the purview of <i>grama</i>.
  Rav Shternbuch in particular seemed very concerned about the use of <i>grama</i> on Yom Tov, especially since there are so many electronic items that can be operated using <i>grama</i>. For example, if one were to follow Rav Heinemann's ruling to its logical conclusion, one could routinely use a Zomet <i>grama</i> phone on Yom Tov, an obviously intolerable situation according to all opinions.
  Moreover, the idea that Halachah grants unfettered license to perform <i>melachah</i> using <i>grama</i> on Yom Tov does not seem to be supported by contemporary <i>poskim</i>. <i>Shemirat Shabbat Kehilchatah</i> (13:27,33) does not grant blanket permission to <i>grama </i>activities on Yom Tov, and the Zomet Institute does not sanction use of its <i>grama </i>products on Yom Tov for non-essential activities.100<i class="footnote">The <i>Kitzur Shulchan Aruch</i> (98:25) does not permit <i>grama</i> on Yom Tov. See <i>Piskei Teshuvot</i> 514:9, who cites a list of other <i>poskim</i> who do not permit <i>grama</i> on Yom Tov.</i> Hence, intentionally performing <i>grama</i> is permissible on Yom Tov only for highly essential needs and not simply to raise and lower the temperature in one's oven.
  Conclusion
  Rav Heinemann and the Star-K certification agency are highly respected. However, for the reasons articulated above, his ruling appears not to constitute the mainstream halachic viewpoint and should not be relied upon in this specific instance.
  
  Closing a Website for Shabbat and Yom Tov
  
  Different practices have emerged in the observant Jewish community regarding closing websites for Shabbat and Yom Tov. Many businesses do close their websites for Shabbat,101<i class="footnote">I have been informed that the necessary programs are readily available and are relatively easy to implement.</i> while others do not close their websites for Shabbat. In this essay, we will survey six issues involved in this controversy.
  <i>Shevitat Keilim</i>
  The Mishnayot (Shabbat 1:5-6) record a debate between Beit Hillel and Beit Shamai regarding the scope of the prohibition of <i>melachah</i> on Shabbat. The Torah (Shemot 20:10) commands that our children, our slaves, and even our animals must rest on Shabbat. Beit Shamai argue that this prohibition extends even to one’s utensils. Thus, according to Beit Shamai, one cannot, for example, set a trap before Shabbat in order that an animal be caught on Shabbat, as this constitutes his utensil performing <i>melachah</i> on Shabbat.
  The Halachah (Shulchan Aruch O.C. 244:1), however, is in accordance with the opinion of Beit Hillel that one’s utensils are not included in the prohibition to engage in <i>melachah</i> on Shabbat. Thus, the prohibition to work on Shabbat does not preclude one from allowing his website to continue to function on Shabbat even though various electronic systems will perform the <i>melachot</i> involved in daily business operations.
  <i>Gezeirat Mekach U’Memkar</i>
  <i>Chazal</i> (Beitzah 37a) forbade engaging in business on Shabbat (<i>gezeirat mekach u’memkar</i>). Rashi (ad. loc. s.v. <i>Mishum Mekach Umemkar</i>) explains that this is prohibited both due to concern that one may come to write on Shabbat and also because of Yeshayahu’s exhortation (58:13) to refrain from “<i>mimtzo cheftzecha v’dabeir davar</i>,” pursuing one’s business or discussing it on Shabbat.
  It would seem, at first glance, that permitting one’s website to continue to function on Shabbat does not violate this prohibition, since the website owner is not actively involved in the sales and marketing of his items. However, in a celebrated ruling, Rav Akiva Eiger (<i>Teshuvot Rabi Akiva Eiger</i> 159) forbids one to arrange a conditional transaction that will take effect on Shabbat, as he believes that this is included in the <i>gezeirat mekach u’memkar</i> despite the fact that no action related to the transaction occurs on Shabbat itself. This would seem to preclude operation of business websites on Shabbat, as one may be acquiring money from his internet customers on Shabbat and Yom Tov. Even though the Maharam Schick (<i>Teshuvot Maharam Schick</i> O.C. 131) disputes this ruling of Rav Akiva Eiger, Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> 3:44) rules that this issue is difficult to resolve and that in practice, we should be strict out of doubt in deference to the great Rav Akiva Eiger.
  However, the <i>Teshuvot Chelkat Yaakov</i> (O.C. 67), Rav Shlomo Dichovsky (<i>Techumin</i> 22:330), and Rav Doniel Neustadt (<i>The Daily Halachah Discussion</i> pp. 26-27 in the Hebrew section) all agree that Rav Akiva Eiger’s ruling applies only if one specifically stipulated that the transaction take effect on Shabbat. They marshal evidence to this assertion from the Shulchan Aruch’s permission (O.C. 307:4) to ask a non-Jew before Shabbat to purchase an item when he has the opportunity to do so. Even though the non-Jew might purchase the item on Shabbat, it is permissible as long as one does not specifically mention Shabbat as the day he wants the purchase to take place. Accordingly, we see that acquiring title to an item on Shabbat (such as the item a non-Jew purchases on one’s behalf on Shabbat) is not per se included in the <i>gezeirat mekach u’memkar</i>. Thus, even Rav Akiva Eiger would not object to one’s website facilitating acquiring title to money from purchases that occurred on Shabbat, since one did not specifically stipulate that he wishes for the transaction to take effect on Shabbat.
  <i>Sechar </i>Shabbat
  <i>Chazal</i> (Ketubot 64a) forbade earnings even from permitted activities on Shabbat (<i>sechar </i>Shabbat)<i>.</i> This applies, as indicated by the case described by the Gemara, even to passive income such as that accrued from a rental that is calculated daily (Mishnah Berurah 306:19). Thus, it would seem that earnings from items sold on Shabbat and Yom Tov on one’s website should be forbidden.
  However, Rav Shlomo Zalman Auerbach (cited in <i>Shemirat Shabbat Kehilchatah</i> ch.29 n. 70) and Dayan Weisz (<i>Teshuvot Minchat Yitzchak</i> 3:38 permit leaving one’s automated machines in operation during Shabbat. <i>Sechar</i> Shabbat is not a concern since Rav Yechezkel Landau (<i>Teshuvot Noda Biy’hudah</i> 2:26) rules that <i>sechar </i>Shabbat applies only to payment for services rendered such as babysitting or tutoring but does not apply to paying for goods provided on Shabbat.
  Thus, Rav Landau permits a mikvah to collect payment after Shabbat from ladies who immersed there on Friday evening. Indeed, the Mishnah (Beitzah 29b) permits obtaining an item from an observant storeowner on Yom Tov (in certain limited circumstances) even though payment will be made for that item after Yom Tov. Thus <i>sechar</i> Shabbat does not apply to payment for goods sold on the internet.
  <i>Lifnei Iveir Lo Titein Michshol</i>
  The Torah (Vayikra 19:14) prohibits causing another to sin - <i>lifnei iveir lo titein michshol</i>. Perhaps a website runs afoul of this prohibition, since non-observant Jews might access the website and order an item on Shabbat. Dayan Weisz (<i>Teshuvot Minchat Yitzchak</i> 5:14), in the context of permitting a telephone answering machine that was not set specifically for Shabbat, rules that this does not pose a problem. One consideration is the fact that it is possible that no Jew will not visit the site on Shabbat, and some opinions believe that <i>lifnei iveir lo titein michshol </i>does not apply in case of only possible infraction.
  Another consideration is that the Gemara (Avodah Zarah 6b) teaches that <i>lifnei iveir lo titein michshol</i> applies only if the violator would have had considerable difficulty sinning without the facilitator’s assistance (<i>trei avrei d’nahara</i>, literally, where one brings the forbidden item to another from one side of a river to another). Posting a website is hardly a case of <i>trei avrei d’nahara</i>, as there is no shortage of competitors for each website and the non-observant Jew not has easy access to any number of similar websites.
  Even though some opinions (such as <i>Tosafot</i> Shabbat 3a s.v. <i>Bava</i>) rule that even in such a case there is a rabbinic obligation to separate one’s fellow Jew from sinning (<i>l’afrushei mei’issura</i>), Dayan Weisz rules that this does not apply when there is only a possibility that a Jew may sin. Rav Neustadt notes that Rav Shlomo Kluger (<i>Teshuvot Tuv Ta’am Vada’at</i> 3:2:50) also rules thusly. Moreover, many <i>poskim</i> rule that the obligation <i>l’afrushei mei’issura </i>applies only in case where the sin occurs at the time of one’s action (such as handing a non-observant Jew something he immediately will carry outside of the <i>eiruv</i>).102<i class="footnote">See <i>Teshuvot Binyan Tzion</i> (15), <i>Teshuvot Meishiv Davar</i> (2:31), <i>Teshuvot Maharsham</i> (2:97), and <i>Teshuvot Igrot Moshe</i> (Y.D. 1:72).</i> Thus, since the website is posted before Shabbat, the issue of <i>l’afrushei mei’issura </i>does not apply.
  Rav Neustadt (ad. loc. p. 30) adds another lenient consideration by citing the Shach (Y.D. 151:6) and <i>Dagul Meir’vavah</i> (ad loc.), who rule that the rabbinic obligation <i>l’afrushei mei’issura </i>does not apply to those who routinely and deliberately violate Torah law. Moreover, he notes that Rav Moshe Feinstein in many of his responsa rules that the Shach and <i>Dagul Meir’vavah’s</i> ruling applies even to Jews who were raised in an environment devoid of Torah (<i>Tinok Shenishbah</i>).103<i class="footnote">For more discussion of the halachic status of those raised in a non-Torah environment, see <i>Gray Matter </i>1:78-82.</i> Rav Neudstadt notes that even though the Mishnah Berurah (347:7) rules in accordance with the Magen Avraham (347:4), who does not subscribe to the view of the Shach and <i>Dagul Meir’vavah</i>, Rav Feinstein (<i>Teshuvot Igrot Moshe</i> E.H. 4:61) rules that the basic Halachah follows the Shach and <i>Dagul Meir’vavah</i>.
  <i>Marit Ayin</i>
  The Shulchan Aruch (O.C. 243:1) forbids renting one’s bathhouse to a non-Jew who will operate it on Shabbat if it is known that the establishment belongs to a Jew due to concern for <i>marit ayin</i> (literally, sight of the eye). If a Jewish business remains open on Shabbat, onlookers will conclude that the Jew actually is operating the bathhouse on Shabbat or that the non-Jew is operating it at the Jew’s behest. Rav Shlomo Dichovsky, notes that this is not a concern regarding a website, since there is no <i>marit ayin</i> when it is well-known that the activity is conducted entirely by automation. Indeed, the Mishnah Berurah (467:33) and the <i>Aruch Hashulchan</i> (Y.D. 298:4) rule that <i>marit ayin</i> does not apply when permissible ways to perform the action in question are known.
  <i>Zilzul</i> Shabbat – A Degradation of Shabbat
  Thus far, we have not found a “technical” reason to prohibit allowing one’s business website to be functional on Shabbat. However, there is concern that perhaps this constitutes a degradation of the holy Shabbat day. Indeed, <i>poski</i>m of the past half-century have struggled with defining the precise parameters of which automated activity is prohibited. The <i>poskim</i> have raised this issue regarding automatic food dispensers, laundry machines, answering machines, fax machines, and timers. We shall now discuss these rulings and their application to allowing one’s website to remain operational on Shabbat.
  Automatic Timers
  Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> O.C. 4:60) was asked if an automatic timer could be set before Shabbat to turn the oven on during Shabbat so that the food for the Shabbat afternoon meal could be freshly cooked. Although Rav Moshe does not believe that doing so entails any technical prohibition,104<i class="footnote">This is in contrast to the opinion of the <i>Chazon Ish</i> (O.C. 2:2), who believes that this involves technical violations of Shabbat,</i> he nonetheless strongly objects to the idea on the grounds that it is a degradation of Shabbat. In fact, Rav Moshe prohibits the use of all timers except for turning lights on and off, which already had become accepted practice. Rav Moshe writes:
  In my humble opinion, it is obvious that it is forbidden to permit this, because through the use of such automation, one can perform all of the forbidden labor of Shabbat and operate every factory, and there is no greater degradation to Shabbat than this. It is obvious that had this existed in Talmudic times, they would have forbidden this in the same manner that they forbade asking a non-Jew to perform work on one’s behalf on Shabbat.
  It is very reasonable to assert that Rav Moshe would forbid allowing one’s website to operate on Shabbat for the same reason. However, one might respond, as Rav J. David Bleich observes (<i>Tradition</i> 35:2:50), that Rav Moshe’s ruling “has not been widely accepted among Halachic decisors.” Indeed, many <i>poskim</i> allow the use of timers for usage other than lighting, including the <i>Chazon Ish</i> (O.C. 38:3-4), Rav Shlomo Zalman Auerbach (<i>Teshuvot Minchat Shlomo</i> 1:66), Rav Yaakov Breisch (<i>Teshuvot Chelkat Yaakov</i> O.C. 71), Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 1:20:9), and Rav Ovadia Yosef (<i>Teshuvot Yechaveh Da’at</i> 2:57).
  One could argue, though, that Rav Breisch notes (ad. loc. O.C. 70) that he permits automation only for the enhancement of the honor and enjoyment (<i>kavod</i> and <i>oneg</i>) of Shabbat, not for other purposes.
  On the other hand, the Chazon Ish does permit automation for the purpose of milking cows on Shabbat.105<i class="footnote">See <i>Gray Matter</i> 1:210.</i> Thus, as Rav Shlomo Dichovsky (<i>Techumin </i>22:331) notes, halachic authorities of the modern age, “have not formulated clear guidelines and distinctions between areas where the practice has emerged to be lenient [to set timers for Shabbat use], such as between lighting and extinguishing lights for Shabbat and cooking using a timer.”
  Automated Food Dispensers
  Rav Doniel Neustadt (<i>The Daily Halachah Discussion</i> p. 31 in the Hebrew section) argues that allowing a website to function on Shabbat is identical to the issue of allowing one’s automated food dispensers to operate on Shabbat. He notes the consensus of halachic authorities is that it is permitted to allow such machines to operate on Shabbat. These authorities include Rav Yaakov Breisch (<i>Teshuvot Chelkat Yaakov</i> O.C. 1:67), Dayan Weisz (<i>Teshuvot Minchat Yitzchak</i> 3:38), and Rav Shlomo Zalman Auerbach (cited in <i>Shemirat Shabbat Kehilchatah</i> 29:28).106<i class="footnote">Rav Shmuel Wosner (<i>Teshuvot Sheivet Halevi</i> 5:28), though forbids this.</i> A simple proof to these rulings is the fact that Halachah (Shulchan Aruch O.C. 244:1, cited above) follows the opinion of Beit Hillel, who permit allowing one’s utensils to perform <i>melachah</i> on Shabbat. Indeed, Rav Hershel Schachter told me that business websites are identical to vending machines and there is no halachic obligation to close websites for Shabbat.
  However, one may argue that business websites and automated food dispensers are not identical. Rav Breisch and Dayan Weisz specifically note that their permission extends only if the Jews’ name is not associated with the machine and that the business is not conducted on the Jew’s property (as indicated in Shulchan Aruch O.C. 245:4). If either of these conditions is met, though, this presumably is regarded as allowing one’s store to remain open on Shabbat, which the <i>Chatam Sofer</i> (<i>Teshuvot Chatam Sofer</i> 195 in the addendum) and Rav Chaim Ozer Grodzinsky (<i>Teshuvot Achiezer</i> 3:25) regard as a Torah-level violation of the obligation to create “<i>Shabbaton</i>,” a positive Shabbat atmosphere.107<i class="footnote">This obligation is formulated and elaborated upon by the Ramban in his commentary to Vayikra 23:24.</i>
  In fact, it for this reason that Dayan Weisz (<i>Teshuvot Minchat Yitzchak</i> 9:24) forbids allowing one’s store in which customers operate laundry machines by themselves to remain open on Shabbat. He argues that since the business is operating on the Jew’s property, its operation is a violation of <i>shabbaton</i>. A business website certainly has the business name posted, and therefore it differs dramatically from anonymous automated food dispensers. Hence business websites far more resemble a traditional store than do automated machines.
  Facsimile Machines and Voice Mail
  Defining the boundaries as to when an automated process crosses the line from a permissible automation such as the classical trap to capture animals to a full-blown store is not a simple process. Poskim grapple with the permissibility of leaving one’s facsimile and voice mail108<i class="footnote">E-mail would seem to be the identical issue.</i> in operation at one’s business during Shabbat and Yom Tov in order to retrieve messages afterward. As Rav J. David Bleich (<i>Tradition</i> 35:2:45) notes, the weight of rabbinic opinion favors a permissible ruling and this has become the accepted practice throughout the observant Jewish community. Although Rav Meir Bransdorfer (<i>Mevakshei Torah</i> 2:8) compares this practice to allowing one’s store to operate on Shabbat and forbids it, Rav Breisch (ad. loc. 70) and Dayan Weisz (ad. loc. 5:14) permit these machines to be left operational provided that they were not specifically set for Shabbat (as was necessary in the early stages of the developments of these products). Rav Mendel Zilber also permits the operation of such devices on Shabbat (<i>Teshuvot Moznai Tzedek 2</i>:14-15 and 3:24). One could argue that similarly, a website also should be permitted to function on Shabbat.
  However, Rav Breisch (ad. loc.), in the course of his responsum regarding answering machines,109<i class="footnote">Rav Breisch wrote this in 1961, and his foresight is remarkable; we cite his comments in their entirety because his words are highly instructive.</i> raises the following issue:
  At a time when technology is quickly progressing forward, it is possible that in the near future, [it will be feasible] to organize a large store through automation where the store will open by itself at the appropriate time without anyone present and the customers will arrive even though no individual is tending the store. All of this will be accomplished by automation, where the merchandise will be purchased by the customers in exchange for the money they leave. If we degrade Shabbat by permitting business to be conducted through automation, this will create an enormous desecration of Shabbat. An individual will sit in the Beit Midrash on Shabbat or at his table singing Shabbat Zemirot and his business will operate on Shabbat on his behalf as it does during a weekday. I am uncertain as to whether this is similar to the Ramban’s assertion (Vayikra 23:24) that business conducted as usual, even if a Jew does not engage in any of the forbidden labors, constitutes a Torah prohibition. Even though truthfully there is a great difference between the situations, as the Ramban addresses a situation where the business owner is actively involved in running the store (but takes care not to perform any forbidden labor), as opposed to a situation where the individual is entirely passive and all work is performed by a machine that is set before Shabbat.
  Nonetheless, since his business operates in public on Shabbat on his behalf, this is not “<i>Shabbaton</i>.” This constitutes a problem of Uvdin D’chol (engaging in a weekday type activity) and [violates] the obligation that one’s actions on Shabbat differ from one’s weekday activities (see Rambam <i>Hilchot Shabbat</i> 24:1 and 12). It is not comparable to the permission to allow one’s automated machines to operate in a public place where it is not known to whom the machine belongs.
  Indeed, Rav Mordechai Willig and Rav Zvi Sobolofsky have told me that they strongly oppose allowing one’s website to operate on Shabbat and Yom Tov, as they compare operating a website to allowing one’s store to function on Shabbat. Rav Aharon Lichtenstein also told me that he is "strongly opposed" to maintaining a business website in operation on Shabbat and Yom Tov. He believes it is analogous to Rav Yosef (Shabbat 18a) forbidding setting a mill in a public area before Shabbat so that it will grind through Shabbat, since the public can access the website. We should note, though that if a business website is analogous to a mill then since the Rama (O.C. 252:5) rules that one may follow Rabbah, who disagrees with Rav Yosef, to avoid a considerable financial loss, it follows that one may allow one’s business website to function on Shabbat in case of concern for major financial loss. Mishnah Berurah (252:49) adds that in case of great financial loss one should sell the mill to a non-Jew for Shabbat.
  Criticism of Rav Breisch
  Rav Shlomo Dichovsky (<i>Techumin</i> 22:331) cites Rav Moshe Stern (<i>Teshuvot Be’er Moshe</i> 6:60 in his discussion of matters pertaining to electricity), who criticizes Rav Breisch’s approach:
  He has issued a new <i>gezeirah</i> (decree), which no contemporary Rav, no matter his stature, is permitted to issue (see Rosh, Shabbat 2:15 and Maggid Mishneh to Hilchot Chametz U’matzah 5:20). Certainly, if the leading rabbis of our generation will jointly issue a prohibition, I will certainly join their call, but an individual Rav is not authorized to make such a decree, and we certainly will not accept his decree.
  Rav Doniel Neustadt (ad. loc.) essentially adopts this same approach, arguing that it is essentially permitted to leave one’s website operational on Shabbat, though he defers to the leading rabbinic figures of our generation to decide if allowing a business website to function constitutes a breach of Shabbat observance.
  Conclusion
  Rav Dichovsky (ad. loc.) summarizes this issue as follows: “One cannot forbid allowing one’s business website to remain operational on Shabbat. However, this certainly involves a violation of the spirit of Shabbat.” Rav Dichovsky offers two exceptions to this rule. He writes that “there is room to permit” a website that is necessary for national security to remain operational even if the need for the website is only indirect. He also permits creating a partnership with a non-Jew in which the profits earned on Shabbat will accrue to the non-Jew (in accordance with the provisions set forth in Shulchan Aruch O.C. ch. 245) and there is adequate publicity of this fact on the website.
  
  Air Travel on a Fast Day
  
  In pre-modern times, it was relatively easy to determine the end of a fast day. The advent of airplane travel, however, has raised a host of questions as to when a fast should end. In this chapter, we shall discuss four common scenarios: traveling east and not crossing the international date line (nightfall arrives earlier), traveling west and not crossing the date line (nightfall arrives later), traveling west and crossing the date line (potentially curtailing the fast by many hours or even avoiding the fast altogether), and traveling east and crossing the date line (possibly encountering the fast day twice).
  Traveling East without Crossing the Date Line
  The classic responsum that addresses the question of the impact of the changing time zones on halachic matters was authored by the <i>Radbaz </i>(<i>Teshuvot Haradbaz</i> 1:76) in the sixteenth century. The <i>Radbaz</i> writes that the end of Shabbat is determined by the advent of <i>tzeit hakochavim</i> (the appearance of three medium-sized stars) in the specific place that a person finds himself on Shabbat even if Shabbat has not yet ended in the individual's usual place of residence.110<i class="footnote">See <i>Seforno</i> to Vayikra 23:3, who adopts a similar approach.</i>
  A proof to this approach may be derived from the Gemara (Shabbat 118b) that praises those who begin Shabbat in Tiberius and those who end Shabbat in Tzippori (located in the lower Galilee almost at a midpoint between Haifa and Tiberius). Rashi (ad. loc. s.v. <i>MiMachnisei</i>) explains that Tiberius lies on a low altitude, and thus the sun appears to set early there, leading its residents begin Shabbat early. Tzippori, on the other hand, rests on a mountain where the sun appears to set late, and its residents therefore observe Shabbat until quite late.111<i class="footnote">Tiberius lies 212 meters below sea level, whileTzippori lies between 70 and 100 meters above sea level.</i>
  Rav Akiva Eiger (<i>Gilyon HaShas</i> ad. loc.) cites a responsum of the <i>Ri Migash</i> (45), who explains that the praise refers specifically to those who begin Shabbat in Tiberius and walk on Shabbat to Tzippori to complete Shabbat there. The people who begin Shabbat in Tiberius and end it in Tzippori deserve praise because they place themselves in a situation in which they are obligated to observe Shabbat longer.112<i class="footnote">In general, Halachah encourages us to create situations in which we are obligated to perform a mitzvot. The practice for men to wear a four cornered garment that requires <i>tzitztit</i> stems from this preference; see Menachot 41a and <i>Tosafot Pesachim</i> 113b s.v. <i>VeEin Lo</i>.</i>
  This interpretation of the Gemara seems to teach that even if one is a resident of Tzippori but find himself in Tiberius on Friday evening, he must accept Shabbat when it begins in Tiberius even though it has not yet begun in Tzippori. Similarly, a resident of Tiberius who is located in Tzippori must wait until <i>tzeit hakochavim</i> in Tzippori to end Shabbat even though Shabbat already has ended in Tiberius. This seems to be conclusive proof of the assertion of the Radbaz that the beginning and end of Shabbat are determined by one's location on Shabbat and not by his usual place of residence.
  Rav Zvi Pesach Frank (<i>Mikraei Kodesh</i> 2:215), however, questions this proof. He suggests that this passage merely proves that one must be strict in cases where Shabbat ends later than it does in one's hometown, as the Gemara mentions only one who travels from Tiberius to Tzippori. The Gemara does not, however, discuss whether a resident of Tzippori visiting Tiberius may end Shabbat earlier than it ends in Tzippori. It is possible, writes Rav Zvi Pesach, that Halachah requires both that Shabbat end in one's location and his residence. Thus, Rav Frank questions the ruling of the <i>Radbaz</i>113<i class="footnote">See the comments of the <i>Harerei Kodesh</i> ad. loc.</i> and remains unsure whether an American who lands in Israel may count the Omer at a time when it is nightfall in Israel but not yet nightfall in the United States.
  Nearly all contemporary <i>poskim</i>, though, accept the <i>Radbaz</i>'s ruling in both strict and lenient directions. For example, Dayan Weisz (<i>Teshuvot Minchat Yitzchak</i> 6:84), Rav Wosner (<i>Teshuvot Sheivet HaLevi</i> 2:93 and 6:129:26), Rav Ovadia Yosef (<i>Taharat HaBayit</i> 2:277-280), and Rav Feivel Cohen (<i>Badei HaShulchan</i> 196:1, Beiurim s.v. <i>Shivat Yamim</i>) all rule that a woman who begins counting seven clean days in the United States and subsequently travels to Israel may immerse at nightfall in Israel even though it is not yet nightfall in America.114<i class="footnote">This is a striking example, since <i>poskim </i>normally are quite strict about the seven clean days (see, for example, Shulchan Aruch Y.D. 196:4 and <i>Gray Matter</i> 2:98-100), yet they rule in accordance with the <i>Radbaz</i> even in a lenient direction.</i>
  These authorities rely to a great extent on a ruling of the <i>Teshuvot Chavatzelet HaSharon</i> (1 Y.D. 47), who adopts the approach of the <i>Radbaz</i> in both strict and lenient directions and asserts that it applies to all halachic concerns. To prove his point, the <i>Chavatzelet HaSharon</i> notes the common practice to regard a boy as Bar Mitzvah immediately at <i>tzeit hakochavim</i> on his thirteenth birthday without inquiry as to the location of his birth to determine if it already is <i>tzeit hakochavim</i> in that locale.
  Accordingly, it is not surprising that Rav Aharon Felder (<i>Moadei Yeshurun</i> p. 109) cites Rav Moshe Feinstein's ruling (<i>Teshuvot Igrot Moshe</i> O.C. 3:96) that one who travels east may end the fast when it becomes <i>tzeit hakochavim</i> in his location even though his fasting time will be reduced as a result. Rav Hershel Schachter told me that we may follow this ruling of Rav Moshe. We should add that it is not proper to deliberately schedule one's eastbound plane travel for a fast day in order to avoid the obligation to fast.
  Traveling West without Crossing the Date Line
  Those who travel west on a fast day are faced with the opposite situation. Their fast will be lengthened, as they will encounter nightfall much later than they would have had they remained home. The question is whether westbound travelers must continue their fast until they encounter <i>tzeit hakochavim</i>.
  The initial question that must be addressed is the status of the obligation to fast on the 17th of Tammuz, Tzom Gedaliah, and the 10th of Teiveit. If it can be determined that we observe these fasts as <i>minhag</i> (custom) and not rabbinic law, it might possible to justify ending these fasts earlier. Tisha B’Av, though, undoubtedly constitutes a rabbinic obligation, and one must wait until nightfall to end the fast. <i>Chazal</i> are quite strict about Tisha B’Av (see Rosh Hashanah 18b and <i>Taanit </i>12b), as they even treat it with the severity of Yom Kippur in some instances (see Pesachim 54b).
  The primary source for this discussion is the Gemara (Rosh Hashanah 18b) that asks why the three aforementioned days are described in <i>Zechariah </i>(8:19) on one hand as fast days and on the other hand as days that eventually will be times of joy. The Gemara cites Rav Papa, who resolves this contradiction by distinguishing between three different situations.When peace prevails, these days are offset aside for celebration. Rashi explains that this refers to a time when <i>nochrim</i> do not control us. The Gemara continues that if we suffer from government persecution, the three days will are obligatory days of fasting. Rav Yosef Dov Soloveitchik (cited by Rav Hershel Schachter in <i>Nefesh Harav</i> p. 197) related that there were <i>poskim</i> in Europe who ruled that the Holocaust years were times of government persecution and that we were obligated to fast on these three days according to rabbinic law. Rav Schachter clarified to me that this ruling applied only to those suffering directly under Nazi rule and not those who lived in the United States.
  The Gemara concludes that in a time when there is neither peace nor government persecution, fasting is optional. The Gemara clarifies, however, that one must fast on Tisha B’Av even if there is no government persecution due to the severity of the tragedies that occurred on that day.
  In which circumstance do we live? Although one might argue that after the establishment of Medinat Yisrael, we are not controlled by <i>nochrim</i> anymore, the sad reality is that Israel is highly dependent on the goodwill of other nations, especially the United States. In addition, Jews who do not reside in Israel are under the direct control of <i>nochrim</i>. On the other hand, there do not seem to be government persecutions in our times. It thus seems most appropriate to classify our times as times of neither peace nor government persecution. If so, although the three days in question should not be treated as days of celebration, there is no rabbinic obligation to fast either. However, the <i>Maggid Mishneh </i>(commenting on Rambam <i>Hilchot Taaniot</i> 5:5) notes that "now" (the time of the <i>Rishonim</i>), the common practice is for everyone to fast on these three fasts even though there is no government persecution.115<i class="footnote">The <i>Maggid Mishneh</i> writes that we must fast on these days until he Beit Hamikdash is rebuilt. </i> This point is codified as normative Halachah by the Shulchan Aruch (O.C. 549:1 and 550:1) and Mishnah Berurah (550:1). As such, even though we are not (in most situations) obligated to fast on these three days, the custom adopted during the time of the <i>Rishonim </i>to fast on these days even when there is no government persecution is accepted and is binding upon us.
  The Stockholm Precedent
  Rav Yosef Cohen presents a lenient ruling (<i>Harerei Kodesh</i> to <i>Mikraei Kodesh</i> 2 p. 214) for those traveling westward. Rav Cohen cites the precedent of the Jewish community of Stockholm that concluded their fasting on the 17th of Tammuz at 9:30 P.M. even though nightfall arrives much later there. The <i>Nachal Eshkol</i> (commentary to <i>Sefer HaEshkol</i>, <i>Hilchot Tisha B’Av</i>), writing in the nineteenth century, justifies this practice by noting that at the time the Jewish people accepted the practice to fast on the 17th of Tammuz, Tzom Gedaliah and the 10th of Teiveit in all circumstances, no Jewish community extended as far north as Stockholm. Thus, he argues that the original acceptance to fast never applied to fasting later than 9:30 P.M., since no Jewish community at that time observed any of these three fasts later than 9:30 P.M.
  Rav Cohen rules that the same can be said for westbound travelers on these three fasts. The original acceptance did not apply to such an extended fast. It is not clear, though, when Rav Cohen would permit a westbound traveler to end his fast. Rabbi David Pahmer (<i>Journal of Halacha and Contemporary Society</i> Spring 1991 p. 78), though, presents this opinion as permitting westbound air travelers to conclude their fast at 9:30 P.M., regardless of when nightfall arrives.
  Rav Feinstein and Rav Wosner
  Not all authorities agree with this approach. Rav Moshe Feinstein (cited by Rav Aharon Felder, <i>Moadei Yeshurun</i> p. 109; see <i>Teshuvot Igrot Moshe</i> O.C. 3:96) and <i>Da’at Torah</i> (end of ch. 549) rule that westbound travelers must continue their fast until they encounter nightfall. These authorities do not make any special exemptions no matter how long the fasting time is increased. This is not an exceptional ruling, since we explained earlier that a person’s halachic status is determined by his location, not by his residence. Thus, if one is located in an area at a time that is still the 17th of Tammuz, he must continue fasting.
  Rav Shmuel Wosner (<i>Teshuvot Sheivet HaLevi</i> 7:76) adopts somewhat of a compromise approach between Rav Cohen and Rav Moshe. He expresses considerable reservations about the Stockholm-precedent and even questions its validity. His basic concern is that there is no source for the <i>Nachal Eshkol</i>’s assertion in the Gemara or <i>Rishonim</i>. Moreover, he reasons that it seems that when the Jewish people accepted the obligation to fast on the aforementioned three fasts, they accepted the obligation to fast in accordance with the rules of fasting. Since the Gemara (<i>Taanit</i> 12a) states that any fast that does not conclude with sundown is not considered a proper fast day, a fast day by definition means fasting until nightfall, regardless of how late that may be.
  Accordingly, Rav Wosner reasons, when we accepted the obligation of these three fasts, we accepted the obligation to complete them regardless of how late they may end. Indeed, observant communities in England where <i>tzeit hakochavim</i> is quite late during the summer, end their fast long after 9:30 in the evening. Moreover, Rav Hershel Schachter told me that when he once discussed the practice in Stockholm, a talmid in the shiur whose father served as a Rav in Stockholm mentioned that the Jewish community there no longer ends the fast at 9:30 P.M.
  Nonetheless, Rav Wosner allows westbound travelers to conclude their fast at sundown (<i>shkiat hachama</i>) rather than the usual <i>tzeit hakochavim</i>. Rav Wosner notes that the proper time to end a fast already was disputed in the time of the <i>Rishonim</i>.
  Although the Shulchan Aruch (O.C. 562:2) rules in accordance with the Rosh (<i>Taanit </i>1:12) that even the three fasts conclude at Tzeit HaKochavim, other Rishonim (such as Rabbeinu Yonah, cited in the Rosh Shabbat 2:23) believe that they end at sundown. <i>Tosafot</i> (Avodah Zarah 34a s.v. <i>Mitanin</i>) note that the straightforward reading of the aforementioned Gemara (<i>Taanit</i> 12a) indicates that these three fasts end at sundown, but they record that the common practice was (and remains until this day) to conclude even these three fasts at nightfall.
  Nonetheless, the <i>Aruch Hashulchan</i> (O.C. 562:9) believes that both the Rambam and the Vilna Gaon (O.C. 562:1 s.v. <i>Ad Tzeit HaKochavim</i>) rule that these three fasts end at s<i>hkiah</i> and therefore concludes that a Rav who rules that one may conclude these three fasts at sundown is not to be denegrated. In practice, some rabbanim will rely on these lenient opinions for someone who experiences an unusually difficult fast, while other rabbanim will not rely on these opinions even in case of need, as the Mishnah Berurah does not even cite these lenient opinions. Accordingly, Rav Wosner permits westbound travelers who are experiencing an extraordinarily long fast to rely on the lenient opinion in conjunction with the approach of the <i>Nachal Eshkol</i>.
  Moreover, Rav Wosner writes that if one feels that it is too difficult to fast the extended hours to the extent that he feels overwhelmed by the fast, it would be permitted to eat enough to restore his well-being even before sundown. However, Rav Wosner writes that the rules of the <i>taanit</i> remain in effect even for one who ate a bit to restore his well-being (see Shulchan Aruch O.C. 568:1). Citing the <i>Teshuvot Chatam Sofer</i> (O.C. 157), he writes that in such circumstances, one should eat only what is necessary. Rav Wosner does not mention a requirement that one eat less than a <i>shiur</i> at a time as is required on Yom Kippur (see Shulchan Aruch O.C. 618) and, according to some <i>poskim</i>, on Tisha B’Av.116<i class="footnote">See <i>Gray Matter</i> 3:41-47.</i>
  Westbound Travelers who Cross the Date Line
  Although most westbound air travelers will find their fasting time extended, some potentially reduce or even avoid the fast altogether by crossing the international date line during the flight. One would avoid the fast if he would begin his travel on the evening of the 17th of Tammuz and would fly west, crossing the date line before dawn of the 18th of Tammuz. In such a case, one will not encounter the time when he is obligated to fast, because as he crosses the date line, he enters the 18th of Tammuz. The question is whether a person in such circumstances is completely excused from observing the fast.
  Rav David Pahmer (ad. loc. p.77) writes the following (echoing the views of Rav Hershel Schachter):
  Consider someone crossing the dateline from Tuesday, 3 P.M. into Wednesday, 3 P.M…even if he has already davened Mincha, he must daven again because his first Mincha was for his obligation to daven on Tuesday, and he now has an obligation to daven on Wednesday [he must also be sure to recite Minchah for Tuesday before crossing the date line - C.J.]. Similarly, he must put on Tefillin…If he crosses the line during the 49 days of the Omer, he must count for the new day. A woman in the midst of the seven clean days of <i>niddut</i> has just jumped into the next day. 117<i class="footnote">See Halachos for the Traveler pages 25-26 for a dissenting opinion. </i> Generally, the dateline affects any issue which depends on the calendar day.
  This approach hardly is surprising, as nearly all of the contemporary <i>poskim</i> have concluded, based on rulings of the <i>Radbaz</i> and <i>Chavatzelet HaSharon</i>, that one follows the standards of the community in which he finds himself. Indeed, the <i>Encyclopedia Talmudit</i> (22:405; see n. 620 as well as p. 403 n. 608) notes that this approach is endorsed by many <i>Acharonim</i>, including the <i>Chazon Ish</i> and the <i>Teshuvot Eretz Zvi</i> (44).
  Accordingly, one is not obligated to fast if he is located in a place where it is not the 17th of Tammuz or the 10th of Teiveit even though it may be a fast day in his place of residence. Thus, one would either avoid the fast altogether or end the fast as soon as he crosses the dateline. Indeed, Rav Hershel Schachter told me that this is his opinion. He remarked that this is analogous to the situation described by the <i>Chazon Ish</i> (O.C. 152) of one who spends the 14th of Adar in Yerushalayim and the 15th in Tel Aviv. The Chazon Ish rules that such a person is not obligated to observe Purim on either day. We should emphasize again that one certainly should not schedule a trip to dodge or limit the obligation to fast (or observe Purim), as noted by <i>Teshuvot Eretz Tzvi</i> (44) in the specific context of crossing the date line.
  Not all authorities agree with Rav Schachter. Rav Moshe Heinemann 118<i class="footnote">His ruling appears at www.star-k.org/kashrus/kk-trav-dateline.htm An essay that appears in <i>Jewish Action</i> (Summer 5767 page 66) states that the approach presented on the Star-K website represents the majority opinion: “There is a disagreement among posekim regarding the obligation of tefillin and prayer. What creates the obligation: the actual calendar day or the daily phenomenon of sunrise? Most posekim maintain the latter”. The article concludes that “if you donned tefillin in the morning and davened Shacharit, and subsequently flew westward into a new day” he should put <i>tefillin</i> on again and say the Shemoneh Esrei again as a <i>tefillat nedavah</i> (voluntary prayer). One should consult his Rav as to whose opinion should be followed. </i> rules that:
  Halachos relating specifically to the time of day are not affected by crossing the Dateline. For example, if one davens Shacharis on Monday morning on a plane flying westbound, and crosses the Dateline ’into‘ Tuesday morning, one does not daven Shacharis again. The person has already fulfilled his obligation and is not required to perform these mitzvos until the sun sets and rises again. However, mitzvos that are dependent on the day of the week or month are affected by crossing the Dateline. For example, if one crosses the line westbound from 1:00 p.m. Thursday to 1:00 p.m. Friday, one must begin preparing for Shabbos as it is Erev Shabbos and Shabbos will begin in several hours.
  He does agree, accordingly, with Rav Schachter that, “If one flies westbound from 1:00 p.m. on Monday, the 16th of Tammuz, and crosses the halachic Dateline to 1:00 p.m. Tuesday on the 17th of Tammuz, one fasts until nightfall”.
  Traveling East and Crossing the Date Line
  Conversely, most eastbound air travelers will find their fast curtailed. However, one who has completed a fast of in a community that lies west of the date line, such as Singapore or Hong Kong, and subsequently boards an eastbound flight will again encounter the fast day once he crosses the dateline, as one who crosses to the eastern side of the date line “gains” a day.
  We should note that there is a precedent for observing a holiday twice in one year. If one is located in Tel Aviv on the 14th of Adar and in Yerushalayim on the 15th of Adar, the <i>Chazon Ish</i> (O.C. 152) writes that he would be obligated to observe Purim on both days. It seems, though, that those who follow and further apply the reasoning of the <i>Nachal Eshkol</i>’s justification of the practice in Stockholm would rule that we never accepted an obligation to fast twice within a 24-hour period.
  Rav Asher Bush (<i>Teshuvot Sho'el BeShlomo</i> 40) addresses this question in the context of Taanit Ester.119<i class="footnote">Admittedly, this fast is treated more leniently by <i>poskim</i>; see Rama O.C. 686:2 and my essay discussing Taanit Ester available at www.koltorah.org.</i> He cites the <i>Beit Yosef</i> (O.C. 686 s.v. <i>UMah SheKatav</i>), who writes that we do not commemorate Ester's three day fast with three days of fasting "in order not to impose too much of a burden on the community" and criticizes as excessive (ad. loc. s.v. <i>Katuv</i>, citing the <i>Shibolei HaLeket</i>) those who fast Taanit Ester on both Thursday and Friday when Purim falls out on Sunday. Rav Bush considers these to be precedents for not requiring an eastbound traveler to resume a fast when he reenters the 13th of Adar. He argues that we never accepted the custom to fast Ta’anit Ester for two days.
  It seems that the same can be said for other fast days that we in current circumstances observe due to custom. Rav Hershel Schachter told me that he agrees with this ruling. Furthermore, the 17th of Tammuz, Tzom Gedaliah, and the 10th of Teiveit are described in <i>Zechariah</i> (8:19) as <i>Tzom HaRevi’i</i>, <i>Tzom HaShevi’i</i>, and <i>Tzom HaAsiri</i>, the fast of the fourth month, the fast of the seventh month, and the fast of the tenth month, respectively. Rav Schachter infers that by definition, there is an obligation (stemming from the <i>pasuk</i> in <i>Zechariah</i>) to fast only once in the fourth month (Tammuz), once in the seventh month (Tishrei), and once in the tenth month (Teiveit).120<i class="footnote">See <i>Halachos for the Traveler</i> pp. 24-25 for a dissenting view. </i>
  The Gerrer Rebbe (in a responsum that appears in <i>Piskei Teshuvah</i> 252, which was published in 5697) discusses one who embarks on Motza’ei Yom Kippur and reenters Yom Kippur in the air. He writes that on a biblical level, one is not obligated to resume fasting. He bases his assertion on the <i>pasuk </i>(Vayikra 23:32) that presents the obligation to fast on Yom Kippur as "<i>meierev ad erev</i>," (from evening to evening). Thus, it seems that one does not observe Yom Kippur unless he was in that location in the evening at the beginning of the fast. The Gerrer Rebbe, though, implies that rabbinic law requires one to resume fasting if he has re-entered Yom Kippur. This does not imply that rabbinic law requires one to fast upon reentering other fast days, since these fasts are not rooted in biblical law and are not treated nearly as strictly as Yom Kippur.
  The <i>Teshuvot Eretz Zvi</i> (44) believes that an air traveler does not join Shabbat in progress, since the halachic status of many items is determined by their status at the beginning of Shabbat.121<i class="footnote">Among other things, this applies to the laws of <i>muktzeh, eiruvei chatzeirot</i>, and <i>eiruvei techumin</i>. Rav Schachter develops this principle at length in chapter seven of his <i>Eretz Hatzvi</i>.</i> Rav Schachter (<i>Eretz HaTzvi</i> p. 67) believes that nonetheless, rabbinic law obligates one who enters Shabbat in progress to observe Shabbat.
  These exceptions of not joining Shabbat or Yom Kippur in progress do not seem to apply to all other areas of Halachah; both have unique considerations that preclude entering them in progress. Thus, it would seem that one who is traveling westward on the 16th of Tammuz or the 9th of Teiveit and crosses the date line, he must join the fast in progress. Indeed, Rav Schachter believes that such an individual enters the new day, thereby requiring him to don <i>tefillin</i> and daven Minchah, as noted earlier. Thus, it would seem that he should also begin to fast once he has entered the dateline.
  Location of the Halachic Date Line
  Although one enters the new day when crossing the dateline, <i>poskim</i> vigorously debate the location of the dateline according to halachic standards.122<i class="footnote">The <i>Encyclopedia Talmudit</i> (22:398-407) notes no less than thirteen opinions on this subject. Maps outlining the major opinions are included in the aforementioned essays of the Orthodox Union and the Star-K. </i> The three basic opinions are that it lies 90 degrees east of Yerushalayim (<i>Chazon Ish</i>), 180 degrees from Yerushalayim (Rav Yechiel Michal Tukachinsky), or that we may follow the international date line located 180 degrees from Greenwich, England (Rav Zvi Pesach Frank). Rav Hershel Schachter (<i>B’ikvei Hatzon</i> p. 67) is strongly inclined to follow the opinion of the <i>Chazon Ish,</i> while Rav Elazar Meyer Teitz told me that rabbanim of the previous generation regarded the <i>Chazon Ish</i>'s view as a minority opinion. Thus, one must consult his Rav for a ruling regarding this matter.
  We should also add that Rav Schachter (ad. loc.) rules that the date line for air travelers differs from the date line for those on land. The <i>Chazon Ish</i> rules that the dateline hugs the eastern coastline of those continents through which the halachic dateline passes according to his opinion (i.e. Asia and Australia). He reasons that "<i>ein mechalkin hayabashot</i>," we do not split a continent as partly on one side of the date line and partly on the other. Accordingly, the <i>Chazon Ish</i> regards Sydney and Melbourne (located on the eastern coast of Australia) as being west of the date line even though they are located more than ninety degrees east of Yerushalayim.
  Rav Schachter reasons that this logic applies only to one who is located on land, not to one traveling in the air. Thus, according to Rav Schachter, one who embarks on a plane trip from Melbourne or Sydney on Sunday enters Shabbat immediately upon takeoff! One should consult his Rav about this matter. 123<i class="footnote">The aforementioned essay that appears on the Star-K website does not present this view of Rav Schachter. </i> Fortunately, it is common today for planes to display maps showing where the plane is located, thereby making it easier for one to determine a halachically appropriate course of action.
  An Eastbound Plane that Returns Westward
  I was told of a situation where a plane that headed east on a fast day encountered nightfall (whereupon the observant Jewish passengers ended their fast) and then, due to engine trouble, needed to return to New York. The passengers were consequently returned to daylight and the date of the fast. The question was whether they were obligated to return to the fast that they had begun. Perhaps one could say also say, similar to the <i>Nachal Eshkol</i>, that we never accepted an obligation to fast in such a situation. Rav Schachter told me that he believes that once the fast has terminated, one is not obligated to begin it again even if one does not accept the <i>Nachal Eshkol</i>'s justification of the practice in Stockholm.
  Conclusion
  Several points emerge from this discussion. Eastbound air travelers who do not cross the date line may end their fast when they encounter nightfall according to nearly all <i>poskim</i>. There is, however, considerable dispute regarding whether westbound air travelers who do not cross the date line must conclude their fast later. Fasts appear to conclude (or begin) when crossing the date line from east to west, but there is considerable dispute regarding the location of the date line as defined by Halachah. According to Rav Hershel Schachter, one who has already observed these three fasts does not return to the fast when crossing the date line from west to east. One should consult his Rav for a ruling regarding the points of dispute.
  
  Showering on Yom Tov
  
  Introduction
  Those who reside in western society are accustomed to showering on a regular basis, something that was unheard of in pre-modern times. For many years, there has been discussion about whether showering is permitted on Yom Tov nowadays in light of this change in hygienic habits. We shall examine the traditional prohibition to bathe on Yom Tov and examine whether it applies in contemporary times.
  Background Information – <i>Mitoch, Shaveh Lechol Nefesh, </i>and<i> Gezeirat Habalanim</i>
  Three basic concepts must be clarified in order to understand this issue. The first is the debate between Beit Shamai and Beit Hillel regarding the law of “<i>mitoch</i>.” The Torah (Shemot 12:16) permits certain <i>melachot</i> on Yom Tov, including cooking, transferring fire, and carrying in a public domain, for the sake of <i>ochel nefesh</i> (food preparation). Beit Shamai limits this permission to food preparation while Beit Hillel expands it to any Yom Tov need.
  For example, the Mishnah (Beitzah 1:5) records that Beit Shamai do not permit carrying a child, lulav, or Sefer Torah in a public domain on Yom Tov, while Beit Hillel do permit such carrying. The Gemara (Beitzah 12a) explains that Beit Hillel believes that “<i>mitoch shehutrah hotza’ah letzorech. hutrah nami shelo letzorech</i>”, “Given that the Torah permits carrying for the sake of food preparation, it permits carrying for any Yom Tov need,” while Beit Shamai rejects this expansion. This concept is commonly referred to as “<i>mitoch</i>” and applies to all <i>melachot </i>that are permitted on Yom Tov. The Halachah follows the opinion of Beit Hillel (Shulchan Aruch O.C. 518:1).
  Even Beit Hillel agree, however, that the Torah permits labor on Yom Tov only for activities that are “<i>shaveh l’chol nefesh</i>,” something that is enjoyed by most people and not something exotic used only by a small minority of individuals. An example of such “exotic” behavior presented by the Gemara (Ketubot 7a) is making incense, which is prohibited on Yom Tov (Shulchan Aruch O.C. 511:4).124<i class="footnote">There occasionally arises some debate whether to define an activity as <i>shaveh lechol nefesh</i>. For example, the <i>Acharonim</i> discussed whether smoking is considered <i>shaveh lechol nefesh</i> (see <i>Bei’ur Halacha </i>511:4 s.v. <i>Ein Osin</i>). This particular point is moot, because smoking is prohibited nowadays due to health concerns (see <i>Gray Matter</i> 3:15-27)</i> The final issue of relevance to this discussion is the <i>gezeirat habalanim</i>, the “decree of the bathhouse-attendants.” The Rambam (<i>Hilchot Shabbat</i> 22:2) presents the issue succinctly:
  Why did the Rabbis forbid entering a bathhouse on Shabbat? Because of the bathhouse attendants who would heat water on Shabbat and claim it was heated before Shabbat [if the water was heated on Shabbat, one may not benefit from the heated water, as it is prohibited to benefit from <i>melachah</i> done on one’s behalf on Shabbat].
  Heating Water for Bathing Purposes on Yom Tov
  The Mishnah (Beitzah 2:5) presents a debate between Beit Hillel and Beit Shamai as to whether one may heat water for washing one’s hands, face, and feet on Yom Tov. Predictably, Beit Shamai forbids this due to its rejection of the idea of <i>mitoch</i>, while Beit Hillel permits this activity on the basis of <i>mitoch</i>,
  Interestingly, even Beit Hillel agrees that one may not heat water for one’s entire body on Yom Tov. The <i>Rishonim</i> debate the reason for this. <i>Tosafot</i> (Beitzah 21b s.v. <i>Lo Yeicham</i>) explain that bathing one’s entire body is not <i>shaveh lechol nefesh</i>, as it is “fit only for finicky individuals.” The Rambam (<i>Hilchot Yom Tov</i> 1:16), though, believes that it is included in the <i>gezeirat habalanim</i>,125<i class="footnote">See <i>Aruch Hashulchan</i> (511:1-4) for an explanation of the Rambam’s opinion regarding <i>shaveh lechol nefesh</i>.</i> though it appears unusual to extend this edict to Yom Tov where one is permitted to engage in many <i>melachot</i> necessary for Yom Tov. The Ramban (Shabbat 40a s.v. <i>Ha Ditnan</i>) explains that since some halachic concerns apply to bathing on Yom Tov as well, such as the fear that one may come to squeeze water (<i>sechitah</i>) from one’s hair or towel, the edict applies to Yom Tov as well.
  There are two major differences between these two approaches. According to <i>Tosafot</i>, heating water for bathing on Yom Tov constitutes a Torah-level prohibition, whereas according to the Rambam, it is only a rabbinic prohibition. Moreover, according to <i>Tosafot</i>, this prohibition potentially is subject to change, as the category of <i>shaveh lechol nefesh</i>varies in accordance with the habits of each particular generation,126<i class="footnote">One might argue, though, that <i>Tosafot</i> agree that in addition to the issue of <i>shaveh lechol nefesh</i>, the <i>gezeirat habalanim</i> applies to Yom Tov. Support for this approach may be found in the Ran (Beitzah 11a).</i> whereas the <i>gezeirat habalanim</i> is clearly not subject to change, as the edicts of <i>Chazal</i> apply even when their reasons do not (Beitzah 5a).
  This is quite ironic, as normally we are stricter regarding a Torah law than regarding rabbinic enactments. However, it emerges in this case that there is more room for leniency with a Torah-law than a rabbinic law. Thus, according to <i>Tosafot</i>, it might be permitted nowadays to bathe one’s entire body on Yom Tov, since such bathing has become <i>shaveh lechol nefesh </i>in our times. According to the Rambam, however, the prohibition remains in effect.
  The Shulchan Aruch (O.C. 511:1-2) clearly takes into account the issue of the <i>gezeirat habalanim</i>, as he permits bathing one’s entire body on Yom Tov if the water was heated before Yom Tov only if the bathing is not done in a bathhouse. The Rama forbids bathing even outside the bathhouse. The Mishnah Berurah (511:18) explains that according to the Rama, the g<i>ezeirat habalanim</i> forbids bathing on Yom Tov to the same extent that it does on Shabbat, which includes bathing even outside of a bathhouse.
  Thus, the prohibition to bathe one’s entire on Yom Tov applies even today according to both the Shulchan Aruch and the Rama. Indeed, most rabbanim today forbid bathing one’s entire body on Yom Tov. For example, the <i>Shemirat Shabbat Kehilchatah </i>(14:7) does not permit bathing on Yom Tov even though he considers the fact that bathing today has become <i>shaveh lechol nefesh</i> (see n. 21). Similarly, the <i>Yalkut Yosef</i> (5 <i>Moadim</i> p.482) does not offer blanket permission to bathe nowadays despite the greatly increased frequency of bathing.
  Moreover, bathing is problematic today even for Sephardic Jews who follow the approach of the Shulchan Aruch, as the only way to insure that all of the water being used for bathing is heated before Yom Tov is to shut off the boiler before Yom Tov. Most families would not want to do this, since the hot water in the tank might be depleted during the course of Yom tov, leaving them without hot water to wash their hands and face.
  Possible Exceptions to the <i>Gezeirat Habalanim</i>
  There is, however, possible flexibility regarding the application of the <i>gezeirat habalanim</i>. The primary area of leniency is presented in the context of women immersing in a mikveh on Shabbat and Yom Tov evenings. Two major eighteenth-century <i>poskim</i>, Rav Yechezkel Landau (<i>Teshuvot Noda Biy’hudah</i> O.C. 24) and Rav Tzvi Ashkenazi (<i>Teshuvot Chacham Tzvi</i> 11) forbid immersing in a mikveh whose water is heated even before Shabbat or Yom Tov. They permitted immersion only in lukewarm water, which the <i>Aruch Hashulchan</i> (O.C. 326:3) defines as water that people do not commonly regard as warm even though it still is a bit warm.127<i class="footnote">For further discussion, see <i>Shemirat Shabbat Kehilchatah</i> 14:1 n. 3.</i> These authorities believe that the <i>gezeirat habalanim</i> was issued only in regard to hot water and not lukewarm water. The <i>Beit Meir </i>(Y.D. 197) disagrees, arguing that it applies even if the water is lukewarm.
  Nonetheless, by the nineteenth century, Rav Chaim of Sanz (<i>Teshuvot Divrei Chaim</i> O.C. 2:26) notes that the common practice was for women to immerse even on Shabbat and Yom Tov evenings in fully heated mikvaot, with the approval of the leading rabbinical authorities. Two reasons are offered to justify this practice. Rav Akiva Eiger (commenting on Shulchan Aruch 307:5, cited by the Bei’ur Halachah 326:1 s.v. <i>B’mayim</i>) permits bathing in hot water even on Shabbat if the water was heated prior to Shabbat in case of great discomfort. He believes that the <i>gezeirat habalanim</i> was not intended to apply in such circumstances. Since women find it very difficult to immerse even in lukewarm water, the edict does not apply to such situations. A second reason is that the <i>gezeirah</i> was not issued in case of mitzvah.
  Application to Showering on Yom Tov
  One may combine the three lenient approaches regarding mikveh to showering on Yom Tov. If one is bathed in sweat on Yom Tov (such as from dancing in a very hot room on Simchat Torah), then it is permitted to shower in lukewarm water. In such a situation, one is in great discomfort to the extent that it interferes with the mitzvah of rejoicing on Yom Tov, and therefore it would be permitted to bathe in lukewarm water on Yom Tov. Indeed, Rav Yosef Adler reports that Rav Yosef Dov Soloveitchik permits showering on Yom Tov, at least in such circumstances, even if the water is heated on Yom Tov, since today regular bathing has become <i>shaveh lechol nefesh</i>. Rav Hershel Schachter told me that he also would permit showers in such circumstances on Yom Tov.
  However, if one does avail himself of this leniency, he must take care to avoid squeezing water from his hair or towel. He also must avoid using bar soap (Mishnah Berurah 326:30) and removing hair or loose nails or skin from his body.
  Conclusion
  The consensus opinion amongst today’s <i>poskim</i> is that showering and bathing on Yom Tov remains forbidden other than in exceptional circumstances. It should be noted that one should not distinguish between the first day of Yom Tov and the second day of Yom Tov in this regard. The <i>Aruch Hashulchan </i>(O.C. 511:11) rejects such an approach as degrading to Yom Tov Sheini, a day whose dignity <i>Chazal</i> strove mightily to preserve (Shabbat 23a).
  
  Highways and Eiruvin
  
  Many communities must grapple with the issue of including intercity highways within the <i>eiruv</i>. For example, the Jerusalem-Tel Aviv highway is within the Yerushalayim <i>eiruv</i>, New Jersey State Route 4 runs through Teaneck, New Jersey, and the Henry Hudson Parkway enters the Eiruv of the Riverdale section of The Bronx, New York. Different communities grapple with this issue in varying manners, and we shall explain the basis for the variety of practices.
  <i>Reshut Harabim</i> Limitations
  A most fundamental point is that an <i>eiruv</i> consisting of <i>tzurot hapetach</i> (doorframes, which are poles connected by wires above them) may be constructed only in an area within which it is forbidden to carry only on a rabbinical level. Such an <i>eiruv</i> is forbidden to enclose an area defined as a <i>reshut harabim</i> (public domain). For many centuries, many Jews have relied on Rashi’s (<i>Eiruvin</i> 59a s.v. <i>Ir Shel Yachid</i>) opinion that an area is not defined as a <i>reshut harabim</i> if fewer than 600,000 people consistently enter within the area. Rashi explains that a city without this criterion is too dissimilar to the manner of the <i>diglei midbar</i> (our ancestor’s biblical desert encampment), the paradigm of an area where it is forbidden to carry on a biblical level128<i class="footnote">This issue is discussed at considerable length in <i>Gray Matter</i> 1:165-180. </i>.
  An Intercity Road
  The Gemara (Shabbat 6a) states that a road one travels when going from city to city (<i>seratya</i>) is categorized as a <i>reshut harabim</i>. This passage in the Gemara is codified by Magen Avraham (345:5) and Mishnah Berurah (345:17) without dissent. The question is whether even Rashi would agree that an intercity road is defined as a <i>reshut harabim</i> even if 600,000 people do not regularly travel on that road.
  Ramban (Eiruvin 59a) writes that “it is possible” that Rashi’s leniency does not apply to an intercity road, since such a road is a public domain similar to the <i>diglei midbar</i>, even if 600,000 people do not regularly travel the road. Rav Hershel Schachter (<i>Journal of Halacha and Contemporary Society</i> 5:13 and <i>Kol Tzvi</i> 5765 p. 84) explains that this approach views an intercity road as the paradigm of a <i>reshut harabim</i> (the aforementioned passage in Shabbat 6a seems to support this assertion) and believes that the various conditions to constitute a <i>reshut harabim</i> (such as Rashi’s requirement of 600,000 people) are not necessary to define an intercity road as a <i>reshut harabim</i>. A city or street must have 600,000 people, according to this approach, in order for it to match a highway and constitute a <i>reshut harabim</i>.
  There is no straightforward statement in either Mishnah Berurah or Bei’ur Halachah stating that those who rely on Rashi’s lenient approach should refrain from doing so regarding an intercity road. <i>Aruch Hashulchan</i> (O.C. 345:26) rules that according to Rashi 600,000 people are required even in regard to intercity roads. However, he explains the 600,000 people rule to not refer to passing on this road every day (as implied by the manner in which the Shulchan Aruch, <i>ibid</i>., presents Rashi’s position) but rather to 600,000 people passing through the road “in the course of time.” <i>Teshuvot Maharsham</i> (3:188) and Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> O.C. 1:139:5) rule of 600,000 people applies even to an intercity road. It is clear that Rav Moshe considers this rule to refer to daily passage (<i>Maharsham</i> similarly writes explicitly that the 600,000 people requirement refers only to a city where it is usual to have 600,000 people within it on a daily basis). Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> O.D. 1:139:4) does not regard the bridges that connect Brooklyn and Manhattan as a <i>reshuyot harabim</i>, since 600,000 people do not travel on these roads daily, even though 600,000 people definitely pass on these very heavily traveled bridges in the course of time. <i>Netivot Shabbat</i> (3:1 n. 9) writes that <i>Machatzit HaShekel</i> (357:11) seems to agree with <i>Maharsham </i>and Rav Moshe.
  Rav Mordechai Willig (personal communication) notes that both the Shulchan Aruch (O.C. 303:18) and Rama (O.C. 357:3) present Rashi’s requirement by stating, “There is no Reshut HaRabim in our times,” without stating that intercity roads constitute an exception. He infers that these leading authorities regard Rashi’s leniency to apply even to an intercity road. Indeed, Rav Willig does not exclude the Henry Hudson Parkway from the Riverdale <i>eiruv</i> (Rav Willig is the Rav of the Young Israel of Riverdale), and Rav Eliezer Waldenberg (cited in <i>The Contemporary Eiruv</i> p. 54 n.119) supports the fact that the Jerusalem-Tel Aviv highway is not excluded from the Yerushalayim <i>eiruv</i>, since the highway does not satisfy the requirement of 600,000 people. Rav Hershel Schachter, on the other hand, rules in accordance with Ramban’s suggestion. The Teaneck <i>eiruv</i>, which meticulously excludes Route 4, follows his ruling.
  Defining an Intercity Road
  Rav Willig (personal communication) argues further that the Henry Hudson Parkway is not included in Ramban’s definition of an intercity road, since Riverdale residents commonly use this highway as a convenient and quick manner to travel from one section of Riverdale to another. Indeed, a careful reading of Ramban supports this contention. Ramban speaks of roads “that are <u>outside the city</u> which people use to travel from the city to another city and from one country to another until the end of the entire world.” Ramban seems to be speaking of a major highway, such as the ancient Silk Road or the contemporary New Jersey Turnpike that lies, for the most part, outside city boundaries and is used almost exclusively as an intercity road. 129<i class="footnote">This approach also justifies the inclusion of the A41 in the Eruv of the London community of Edgeware. </i>
  On the other hand, there are <i>eiruvin </i>in North America that exclude even intercity roads that are fully integrated into the city, with traffic lights and parking for automobiles on their sides. This approach seems to run entirely against the aforementioned words of Ramban who specifically states “outside the city”130<i class="footnote">This lenient approach seems not to apply to roads which are overwhelmingly outside city limits but in certain sections pass through cities such as the United States’ classic Route 66. </i>.
  Rav Hershel Schachter adopts a very reasonable approach to this issue. Rav Schachter argues that only a limited-access highway is defined as an intercity road for this purpose. Only such a highway can be described as being “outside the city” (even if it runs within municipal boundaries, such as Teaneck’s Route 4), since it is set apart from the rest of the city. Thus, Rav Schachter (personal communication) ruled that the Matawan, New Jersey, <i>eiruv</i> may include Route 34 and that the Parsippany, New Jersey, <i>eiruv</i> may encompass Route 46.
  Railroads
  <i>Aruch Hashulchan</i> (ad. loc.) rules that heavily traveled railroads are defined as a <i>reshut harabim</i>, and railroad tracks must, therefore, be excluded from an <i>eiruv</i> (though he maintains a unique view that a road is defined as a <i>reshut harabim</i> only if it is the only major road in the area, see ad. loc. number 20; Rav Moshe Feinstein, in <i>Teshuvot Igrot Moshe</i> O.C. 4:87, dismisses this view as entirely unreasonable). This ruling is somewhat surprising, since the Gemara (Shabbat 99a) states that a street must be sixteen cubits (approximately twenty-eight feet) wide to qualify as a <i>reshut harabim</i>, and railroad tracks are not this wide. Indeed, the <i>Chafetz Chaim</i> (Shaar Hatziyun 345:18) following Rambam (<i>Hilchot Shabbat</i> 14:1), rules that even an intercity road must be sixteen Amot wide to be classified as a <i>reshut harabim</i>.
  <i>Maharsham </i>(ad. loc.) in fact rules that a railroad does not qualify as a <i>reshut harabim</i> since it is not sixteen <i>amot </i>wide and does not usually have 600,000 people traveling on it each day. Rav Yeshayahu Bloi (<i>Netivot Shabbat</i> 3:1 n.3) notes that since railroads are not accessible to pedestrians, they might not qualify as <i>reshut harabim</i>. He compares railroad tracks to a sea, which is not defined as a <i>reshut harabim</i> (Shabbat 6a) even if many ships transverse it. <i>Shulchan Aruch Harav (</i>345:19) explains that even though the sea is traveled by many, it is not defined as a <i>reshut harabim</i>, since it differs so much from the <i>diglei midbar</i>, where there was ready access to all traffic. We may add that Rav Bloi’s point also applies to a limited-access highway where there is no room for pedestrian traffic (and civil laws often prohibit walking along such highways).
  I asked Rav Schachter if the train tracks that are used only by freight trains (and are included within the Englewood and Teaneck <i>eiruv</i>) constitute <i>reshuyot harabim</i>. He replied that they might not, since Ramban’s reference to an intercity road seems to refer to a road which people commonly travel. Indeed, Mishnah Berurah (345:17) writes that intercity roads constitute a <i>reshut harabim</i> because “many people are often there.” It is highly counterintuitive to label a road as a <i>reshut harabim</i> if very few people travel on that road.
  Ground Levels
  Even those who do not exclude an intercity road from an Eiruv often must address the fact that the highways run above or below the local streets upon which the Eiruv runs. Rav Yechezkel Landau (<i>Teshuvot Noda Biy’hudah</i> O.C. 42) rules that if a community uses a seawall as a border for its <i>eiruv</i> and a bridge is constructed above the seawall, the bridge constitutes a breach (<i>pirtzah)</i> in the <i>eiruv</i> and must be excluded from the <i>eiruv.</i> This authority believes that an<i> eiruv</i> on one ground level is ineffective on a ground level below or above it. If the other ground level is not excluded, the entire <i>eiruv</i> is disqualified, according to the <i>Noda Biy’hudah</i>, since the area is exposed to an area that is not encompassed by the <i>eiruv</i> (<i>nifratz lemakom heasur lo</i>) and is thus not completely enclosed. Mishnah Berurah (363:118) and <i>Chazon Ish</i> (O.C. 108:1-2) rule in accordance with the <i>Noda Biy’hudah</i>, although Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> O.C. 1:139) rules that aboveground <i>eiruvin </i>are effective for a second ground level. The Riverdale <i>eiruv</i> encounters this problem, and Rav Willig created <i>tzurot hapetach</i> to ensure that the Henry Hudson Parkway, while not excluded from the Riverdale <i>eiruv</i>, does not cause a problem of <i>nifratz lemakom heasur lo</i>.
  Conclusion
  It is sometimes extremely difficult to fully exclude intercity roads from an <i>eiruv</i>. Some communities are blessed with the infrastructure to do so, but in some communities, the cost to exclude intercity highways is exorbitant, as some intercity highways run at ground level and are not separated from local roads by a fence. Communities which follow a lenient approach regarding moderately sized intercity roads, such as the Henry Hudson Parkway, have ample basis for their practice in the rulings of <i>Maharsham</i> and Rav Moshe Feinstein and in the practice in Yerushalayim <i>Ir HaKodesh</i>, although it is best (when practical) to exclude such highways from an <i>eiruv</i>. It is certainly advisable to effectively manage a problem posed by a highway running at a different ground level.
  
  Brit Milah
  
  Contemporary Brit Milah Issues
  
  The Jewish people have been observing the mitzvah of <i>brit milah</i> for approximately 3700 years. Nevertheless, <i>poskim</i> have been forced to grapple with many new challenges posed by newly discovered medical and technical knowledge. We shall discuss five of these issues: performing a <i>brit milah</i> on a jaundiced baby, performing <i>metzitzah</i>, using new implements such as shields and clamps, performing a <i>brit milah</i> on Shabbat for boys conceived by artificial insemination or in vitro fertilization, and using anesthetics at a <i>brit milah</i>.
  
  Jaundice - Gemara, <i>Rishonim</i>, and <i>Acharonim</i>
  The Gemara (Shabbat 134a) states that we should not circumcise a baby boy who is yellow until the yellowness recedes. The Gemara recounts a story about a woman who gave birth to two boys each of whom subsequently died from his <i>brit milah</i>. Rabi Natan advised the woman to delay the <i>brit</i> of her third son until his yellowness would recede. The family heeded Rabi Natan’s advice, and the boy recovered from the <i>brit </i>without difficulty.
  The Rambam (<i>Hilchot Milah</i> 1:17) and Shulchan Aruch (Y.D. 263:1) rule in accordance with this Talmudic passage. They both write, "One should be exceedingly careful about these matters," and that "Danger to life is cause to delay a Brit. It is possible to perform the Milah later, but it is impossible to bring back a Jewish soul." They both write that we do not perform the <i>brit</i> until the baby's appearance resembles that of other healthy baby boys.
  The Rambam and Shulchan Aruch, however, differ about a very significant point. The Rambam writes that we should postpone the <i>brit</i> if the baby is "exceptionally yellow," but the Shulchan Aruch omits the word "exceptionally." The <i>Chochmat Adam</i> (149:4) rules in accordance with the Rambam. He notes that the Smag and Rabbeinu Yerucham also write "exceptionally yellow" in this context, and the <i>Chochmat Adam</i> is puzzled as to why the Shulchan Aruch omits the word. The <i>Aruch Hashulchan</i> (Y.D. 263:3), though, rules in accordance with the Shulchan Aruch. He adds, "Even if the yellowness appears only on one region or limb on the body, we postpone the Brit until he appears like the other children." A major ramification of this dispute is whether we should postpone a <i>brit</i> if the boy exhibits a mild form of jaundice. This issue has not been resolved. Some will postpone the <i>brit</i> in case of mild jaundice while others will not.
  Another dispute is whether one must wait seven days after the jaundice has receded before performing the <i>brit</i>. Halachah requires that one wait seven days after a boy recovers from an illness before performing a <i>brit</i> (Shabbat 137a and Shulchan Aruch Y.D. 262:2). The <i>Aruch Hashulchan</i> (<i>ibid</i>.) and <i>Maharsham</i> (<i>Da’at Torah</i> Y.D. 38) rule that a waiting seven days is unnecessary for a jaundiced baby, while Rav Shlomo Kluger (<i>Teshuvot Tuv Taam V’da’at</i> Y.D.1:220) and the <i>Yad Ketana</i> (<i>Hilchot Milah</i> 8:18) do require waiting seven days.
  Jaundice - Contemporary Poskim
  Modern medicine distinguishes between pathologic jaundice and physiologic jaundice. Generally speaking, modern medicine views a mild case of jaundice to be physiologic, i.e. part of the normal course of development for many babies. Thus, from a modern medical perspective, there is no reason to postpone the <i>brit</i> of a baby experiencing physiological jaundice. Accordingly, Halachah (at least according to the aforementioned view of the Shulchan Aruch and <i>Aruch Hashulchan</i>) and modern medicine seem to conflict regarding this matter. This is not an easy dilemma to resolve, as on one hand, one cannot endanger a child, and on the other hand, he cannot unnecessarily delay a <i>brit</i>.
  Three basic approaches to this dilemma are presented by contemporary <i>poskim</i>. Dayan Weisz (<i>Teshuvot Minchat Yitzchak</i> 8:88) rules that we must adhere to <i>Chazal</i>'s directive that it is dangerous to circumcise a jaundiced baby notwithstanding current medical knowledge. He rules that we should postpone the <i>brit </i>if the child displays even a mild case of jaundice and even if the child has a low bilirubin count (the level of jaundice is determined by measuring the amount of bilirubin in the blood). The <i>Hisachdus Harabbanim,</i> the Satmar rabbinic organization, (cited in Rav J. David Bleich's <i>Contemporary Halakhic Problems</i> 2:237-238) rule that one may not circumcise a child whose bilirubin count is five or higher. Moreover, they require a seven-day wait if the baby experienced a bilirubin count of ten or above. Rav J. David Bleich (<i>Contemporary Halakhic Problems</i> 2:235) subscribes to this approach. He argues, "There exists a distinct possibility that the jaundice is, in fact, the effect of a liver or other disorder and is misdiagnosed as physiologic jaundice."
  On the other hand, Rav Shlomo Zalman Auerbach (cited in <i>Nishmat Avraham</i> 5:84-85) argues that the Rambam and Shulchan Aruch are speaking only of pathologic jaundice. Rav Shlomo Zalman therefore rules that if a competent doctor establishes that the baby is completely healthy, we may perform the <i>brit</i> even if the baby appears yellow. In fact, Dr. Abraham S. Abraham (<i>ibid</i>.) relates that Rav Shlomo Zalman once permitted the circumcision of a child who had a bilirubin count of fourteen because a competent doctor declared that the baby was healthy.
   Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 13:81 and 83) presents a nuanced approach to this issue that has emerged as normative practice in many observant circles. Rav Waldenberg writes that we may not ignore <i>Chazal</i>'s teaching that performing a <i>brit</i> on a jaundiced baby is dangerous. On the other hand, we must consider the assertion of modern medicine that circumcising a jaundiced baby is not dangerous. Rav Waldenberg accordingly rules that we may rely on the opinions of the <i>Aruch Hashulchan</i> and the <i>Maharsham </i>that we need not wait seven days after the jaundice disappears before performing the <i>brit</i>. Moreover, he rules that if we observe that the jaundice is in the process of dissipating and that the signs of jaundice have disappeared from most of the body, then we may perform the <i>brit</i>. Rav Yaakov Kaminetsky (<i>Emet L’Ya’akov</i> on Shulchan Aruch p. 355) adopts a similar approach to this issue. He rules that one may perform the <i>brit</i> if the bilirubin count indicates that the jaundice is in the process of receding. Dr. Abraham (<i>Nishmat Avraham</i> 4:119) records the practice in many circles to perform a <i>brit</i> if the bilirubin count is twelve or less. In fact, some have even suggested (see <i>Techumin </i>19:335-340) that one may ask non-Jewish medical personnel to perform a bilirubin test on Shabbat to determine if we may circumcise the baby on that Shabbat.
  A family that is confronted with this dilemma should consult with its Rav, a competent mohel, and a competent pediatrician.
  The <i>Metzitzah</i> Controversy
  A similar dilemma has emerged in modern times regarding <i>metzitzah</i>, the suction of the blood after the <i>brit</i>. <i>Chazal</i> (Shabbat 133b and Shulchan Aruch Y.D. 264:3) regard <i>metzitzah</i> as a medical necessity. Some <i>Acharonim </i>(Ketzot Hachoshen 382:2 and <i>Chochmat Adam</i> 149:14) believe that <i>Chazal</i> require <i>metzitzah</i> only due to health considerations. Other <i>Acharonim</i> (<i>Teshuvot Maharam Schick</i> O.C. 152 and <i>Teshuvot Avnei Neizer </i>Y.D. 338) insist that<i> metzitzah</i> constitutes an integral component of the <i>milah </i>process and is not merely a health concern. The <i>Acharonim</i> also debate whether <i>metzitzah</i> must be performed orally (<i>Teshuvot Binyan Tzion</i> 1:24) or may be done manually (<i>Chatam Sofer</i> in a responsum printed in Rav Moshe Pirutinsky's <i>Sefer Habrit</i> pp. 216-217).131<i class="footnote">A summary of this debate appears in <i>Sdei Chemed</i> 8: <i>Kuntress Hametzitzah</i>.</i> The <i>Maharam Schick</i> writes that the <i>Chatam Sofer</i>’s aforementioned ruling was issued only in the context of a specific difficult situation and was not intended to apply to all situations. The <i>Avnei Neizer</i> emphasizes the significance of <i>metzitzah</i> from the perspective of Kabbalah. A summary of this debate appears in <i>Sdei Chemed</i> 8:<i> Kuntress Hametzitzah</i>.
   On the other hand, modern science believes that <i>metzitzah</i> is not a medical necessity and is dangerous if performed with direct oral contact. Physicians warn of the danger of transmission of dangerous infectious diseases such as herpes from the mohel to the baby or vice versa.
   Three approaches to this dilemma appear in the nineteenth- and twentieth-century responsa literature. The <i>Avnei Neizer</i> adopts a particularly strong stand and requires the performance of <i>metzitzah</i> orally (direct contact of the mouth to the wound) despite the danger. He applies the Gemara's principle that "No harm will befall those involved in a Mitzvah," (Pesachim 8a) in this context. Indeed, many rigorously observant Jews have steadfastly abided by this ruling.
  On the other hand, the <i>Chatam Sofer</i> writes that the Halachah does not demand that the <i>metzitzah</i> be performed orally. He writes that <i>metzitzah</i> is done orally only because of Kabbalistic concerns. As such, he writes, we should overlook Kabbalistic considerations if performing <i>metzitzah</i> orally poses a health concern. Similarly, Rav Hershel Schachter (<i>Nefesh Harav</i> p. 243) writes that Rav Yosef Dov Soloveitchik reports that his father, Rav Moshe Soloveitchik, would not permit a mohel to perform <i>metzitzah</i> with direct oral contact.
  Rav Yitzchak Elchanan Spektor (cited by the <i>Sdei Chemed</i> 8: <i>Kuntress Hametzitzah</i>) and Rav Zvi Pesach Frank (<i>Teshuvot Har Zvi</i> Y.D. 214) adopt a compromise approach. These authorities permit performing <i>metzitzah</i> orally using a sterile tube. Rav Zvi Pesach, though, cautions that this technique is not simple and requires training to perform properly. On the other hand, the <i>Avnei Neizer</i> objects to using a tube for <i>metzitzah</i>. He notes that the Rambam (<i>Hilchot Milah</i> 2:2) and Shulchan Aruch (Y.D. 264:3) write that <i>metzitzah</i> must extract the blood from the "furthest places." The <i>Avnei Neizer</i> contends that this cannot be accomplished when using a glass tube. Nevertheless, many mohelim both in Israel and North America perform <i>metzitzah</i> using a sterile tube because of health concerns. Rav Dr. Mordechai Halperin notes (<i>Jewish Action</i> Winter 5767/2006) that blood in fact can be extracted from the “furthest places” using a tube. Indeed, Dr. Abraham (<i>Nishmat Avraham</i> 4:123) reports that Rav Shlomo Zalman Auerbach permits performing <i>metzitzah</i> with a glass tube when there is concern for AIDS.
  In 2005, the Rabbinical Council of America (RCA) issued a policy statement regarding <i>metzitzah</i> that concluded, “The RCA urges its member rabbis, their congregants, synagogues and institutions, as well as the larger Jewish community, to encourage and where possible necessitate, that Metzitzah be’Peh be fulfilled via a tube.”
  
  The Plain Mogen, the Gomco Clamp, and the Bronstein Mogen
  
  A few hundred years ago, a plain mogen shield was introduced to enhance the safety of <i>brit milah</i>. The Pri Megadim (O.C. <i>Eishel Avraham</i> 75:8) endorses the use of this shield. Most mohelim use at least this basic shield for <i>brit milah </i>to avoid unnecessary incisions.
  Approximately seventy years ago, the Gomco clamp was introduced due to concern for danger due to excessive bleeding, and it became a standard tool for physicians who perform circumcisions. Halachic authorities, including Rav Yosef Dov Soloveitchik (personal communication), Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 2:119), Rav Yosef Eliyahu Henkin (<i>Eidut L’Yisrael</i> p. 144), Rav Yaakov Kaminezsky (<i>Emet L’Yaakov</i> p. 361), Rav Zvi Pesach Frank (cited in <i>Teshuvot Tzitz Eliezer</i> 8:29), and Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 8:29) strongly oppose the use of the Gomco clamp. Virtually no Orthodox mohel uses a Gomco clamp for a <i>brit milah</i>.
  One major criticism of Gomco clamp is that no blood is drawn during the removal of the foreskin. The Gomco clamp causes the blood to stop flowing to the foreskin, thus producing a bloodless circumcision. Rav Soloveitchik, Rav Moshe, and Rav Waldenberg mention that the drawing of blood is an indispensable component of the Brit Milah procedure. Rav Chaim Soloveitchik is cited as vigorously emphasizing this point (<i>Chidushei Hagrach Al HaShas Shabbat</i> 135a). Rav Moshe seeks to demonstrate this assertion from <i>Chazal</i>'s mention of the act of drawing of blood in the brachah recited at a <i>brit</i> performed on a convert (Shabbat 137b). Another proof is that <i>hatafat dam brit</i> (drawing of blood) is performed on a baby whose <i>brit</i> was conducted improperly, such as a <i>brit</i> performed before the eighth day or a <i>brit</i> performed at night (Shach Y.D. 262:2).
  Another major criticism expressed by <i>poskim</i> is that Halachah views the dead foreskin as detached from the body. Thus, the mohel has not performed any cutting, which certainly invalidates the <i>milah</i>. Rav Frank and Rav Waldenberg express considerable concern for what they perceive as the excessive amount of pain inflicted on the baby when using the Gomco clamp.
  The Bronstein Mogen
  In the 1950s, a well-known mohel, Rav Zvi (Harry) Bronstein, introduced an upgraded version of the traditional mogen. Rav Bronstein writes (in a pamphlet introducing his mogen) that he seeks to satisfy the standards of both the medical establishment and halachic authorities. At that time, many doctors advised against performing a <i>brit</i> without a clamp, and many parents heeded their advice. Mohelim were caught in a terrible dilemma: the <i>brit</i> implements that the rabbanim permitted were forbidden by the doctors, and what the doctors permitted the rabbanim forbade. Rav Bronstein developed his mogen in an attempt to satisfy both rabbis and doctors and thereby facilitate proper fulfillment of the mitzvah of <i>milah</i> in the broader Jewish community. Rav Bronstein writes that Rav Eliezer Silver gave his written approval to this procedure (printed in <i>Hapardes</i> 30:1).
  There has been a mixed reaction among other <i>poskim</i> to the Bronstein Mogen. Rav Yosef Dov Soloveitchik told me that the use of an implement is acceptable if blood is drawn. As Rav Moshe Pirutinsky notes (<i>Sefer Habrit</i> p. 179), some blood is drawn if the Bronstein mogen is placed immediately before the cutting and removed immediately afterwards.
  Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 3:98) rules that a <i>milah </i>performed with the Bronstein mogen is “certainly acceptable b’diavad” if blood is drawn during the cutting. Rav Shlomo Zalman Auerbach (cited in <i>Nishmat Avraham</i> 5:86-87) also rules that a mogen clamp is acceptable <i>b’diavad</i> (after the fact) if blood is drawn. Rav Shaul Yisraeli (<i>Teshuvot Bemareh Habazak</i> 2:96) also permits the use of the Bronstein mogen in certain circumstances.
  On the other hand, Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 8:29, 10:38 and 20:52) and Dayan Weisz (<i>Teshuvot Minchat Yitzchak</i> 5:24:2) emphatically reject the use of the Bronstein mogen. They rule that it is unacceptable even <i>b’diavad</i> and even if blood is drawn. Dayan Weisz argues that no impediment should be made to the normal flow of blood during a <i>brit</i>. Rav Waldenberg goes as far to say that it is better not to perform a <i>brit</i> at all than to carry out a <i>brit</i> using the Bronstein mogen. Indeed, Dr. Ari Greenspan reports that the Israeli Chief Rabbinate strictly forbids the use of the Bronstein mogen. Rav Pirutinsky similarly records that the North American rabbinical organization the Agudath Harabanim also issued a proclamation forbidding use of the Bronstein mogen.
  There are a number of objections raised against performing <i>milah</i> with a Bronstein mogen. One argument is that the Rambam (<i>Hilchot Milah</i> 2:2) and Shulchan Aruch (Y.D. 264:3) describe the mohel performing the <i>p’riah </i>process (removal of the second level of skin beneath the foreskin) with his fingernail. Moreover, the Shulchan Aruch describes <i>milah </i>(removing the foreskin) and <i>p’riah </i>as two discrete processes that can done by two different people on one child. A mohel who uses the Bronstein mogen accomplishes the milah and <i>p’riah </i>simultaneously, as the Bronstein mogen sets in place all of the skin that the mohel will cut, and the mohel subsequently performs the <i>milah</i> and <i>p’riah </i>with one cut.
  However, a responsum of Rav Hai Gaon (printed in <i>Teshuvot Hageonim Shaarei Tzedek</i> 3:5:6) endorses the practice of mohelim in his country (Babylon) to simultaneously perform both <i>milah</i> and <i>p’riah</i> and even though the mohel does not perform the <i>priah</i> with his fingernail. Moreover, Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 1:155 and 3:98) permits simultaneous performance of <i>milah</i> and <i>p’riah</i> and endorses the authenticity of the teshuvah attributed to Rav Hai Gaon. The <i>Shulchan Gavoah</i> (264:27) records the practice of mohelim in Solonika (described by Rav Ovadia Yosef as a community filled with pious and learned Jews) to simultaneously perform <i>milah</i> and <i>p’riah</i>.
  Many more halachic authorities rule that <i>p’riah</i> is acceptable even if the mohel does not use his fingernail. Rav Chaim Ozer Grodzinsky (<i>Teshuvot Achiezer </i>3:65:12) notes that since <i>p’riah</i> is impossible to perform with a fingernail when performing a Brit on an adult, <i>p’riah </i>performed on adult converts is accomplished with an instrument. Rav Chaim Ozer concludes that it is definitely acceptable to perform <i>p’riah </i>with an instrument. Rav Ovadia Yosef (<i>Teshuvot Yabia Omer</i> 7 Y.D. 22), after citing numerous authorities to support his opinion, rules that <i>p’riah</i> with an instrument is acceptable. The aforementioned <i>poskim</i>, however, write that it is preferable to perform <i>p’riah</i> with a fingernail as described in the Shulchan Aruch. The minority of mohelim who use the Bronstein mogen argue that the safety and societal benefits of the implement justify the performance of <i>p’riah</i> in a halachically acceptable, albeit less-than-ideal manner. Moreover, they argue that the practice of the mohelim of Babylon and Solonika constitutes ample precedent to perform <i>milah</i> and <i>p’riah</i>simultaneously without using a fingernail.
  A second reservation that <i>poskim</i> express is the reluctance to endorse a change in the traditional procedure for <i>brit milah</i>. Even though Rav Moshe Feinstein rules that a <i>milah </i>performed with a Bronstein mogen is acceptable, he declines to endorse its use. Rav Moshe explains that "one should <i>l’chatchilah</i> (ideally) avoid anything new." Rav Donny Frank (<i>Journal of Halacha and Contemporary Society</i> 36:50), however, notes that “…innovations have been introduced over the centuries, including the plain shield which is commonplace today." Indeed, Rav Shlomo Zalman Auerbach and Rav Yosef Shalom Eliashiv are cited (<i>Nishmat Avraham</i> 5:84) as ruling that a mohel is "obligated" to use anesthetics if it medically sound to use them, even though doing so represents a departure from the traditional procedure. Similarly, one could argue that the safety afforded by the use of the Bronstein mogen justifies the departure from the traditional procedure for <i>brit milah.</i>
  Rav Yechezkel Landau (<i>Teshuvot Nodah Biy’hudah</i> O.C. 2:18) presents guidelines for legitimate halachic innovation. Rav Landau was asked whether a synagogue may be constructed in a shape other than the traditional rectangular form. Rav Landau responded that although Halachah has no specific requirements regarding the shape of a shul, "It is best not to deviate from the venerated practices [of the Jewish People]." However, he writes, "If the reason [a departure from the traditional practice is desired] is that the proposed plan will allow for more available seating area, there is no reason why this plan should not be implemented." Rav Laudau asserts, though, that the change is inappropriate if the motivation to change the shape is to imitate the architectural style of the nobility.
  Similarly, Rav Bronstein's motivation for introducing his mogen was noble. He risked his life for decades to perform large numbers of halachic circumcisions in the Soviet Union despite government decrees (in accordance with Shabbat 130a). Rav Bronstein’s intention in developing his mogen was to facilitate <i>milah</i> for millions of Jews who otherwise would refuse a halachic circumcision for their children. Moreover, the enhancement of the safety of <i>brit milah</i> might constitute a legitimate reason for change, just as the introduction of the plain shield was accepted as a legitimate change. Furthermore, Rav Bronstein wrote that he has not introduced anything new. Rather, he has merely modified the plain shield that mohelim used in Europe for many generations.
  <i>Brit Milah</i> on Shabbat, “Bathhouse” Insemination, Artificial Insemination, and In Vitro Fertilization
  The Gemara (Shabbat 130-134) teaches that we perform the <i>milah</i> even on Shabbat if that day is the eighth day of the baby's life. The Gemara (Shabbat 135) notes that this applies only to a baby born in a manner where the mother is rendered ritually impure (as described in Vayikra 12:1-8). Thus, we do not circumcise a baby that was born by caesarean section on Shabbat (see Shulchan Aruch Y.D. 266:10), as a mother becomes ritually impure at birth only upon a "conventional" birth.
  The Gemara (Chagigah 16a) discusses a strange situation in which a woman becomes pregnant due to visiting a bathouse that previously was used by a man. Commenting on this Gemara, Rabbeinu Channaneil writes, "This is a miraculous act, and a woman does not become ritually impure upon this type of conception because it does not meet the specifications of the Pasuk [Vayikra 12:1] 'when a woman conceives and gives birth.'" Thus, according to Rabbeinu Channaneil, we may not circumcise the child conceived by bathhouse insemination on Shabbat.
  Rav Shlomo Zalman Auerbach (<i>Teshuvot Minchat Shlomo</i> 3:98:4) presents two possible ways to interpret Rabbeinu Channanel. One is that since the conception occurred miraculously, the woman does not become ritually impure at birth. A second interpretation is that the woman is not rendered impure because the conception occurred in an unconventional manner. Rav Shlomo Zalman believes that the second interpretation is the correct one.
  Rav Shlomo Zalman notes that according to the second interpretation, Rabbeinu Channaneil would rule that a woman who was artificially inseminated does not become ritually impure at birth, since the conception was unconventional. Accordingly, Rav Shlomo Zalman suggests that one should not perform a <i>brit</i> on Shabbat for a boy that was conceived by artificial insemination.
  Rav Hershel Schachter rules that we should follow Rav Shlomo Zalman's approach. Rav J. David Bleich (<i>Tradition </i>Summer 2001 - vol. 35 no. 2:,61-62) notes that the same rule applies to a child conceived through in vitro fertilization. Parents for whom this is relevant should discretely inform the mohel, as he is unlikely to inquire as to how the baby was conceived. Rav Bleich writes that in order to protect the family's privacy, parents may tell people that the <i>brit</i> will not take place on Shabbat because the baby was a caesarean-section birth or jaundiced. One may tell a "white lie" in such circumstances because Halachah sometimes permits lying for the sake of maintaining peace.132<i class="footnote">See Rashi to Breishit 18:13 and Rav Daniel Feldman’s <i>The Right and the Good</i>, pp. 75-94.</i> We should note, however, that Rav Ovadia Yosef (see <i>Yalkut Yosef, Kitzur Shulchan Aruch</i> p. 904) rules that one may perform a <i>brit</i> on Shabbat on a baby that was conceived by artificial insemination or in vitro fertilization. He either agrees with Rav Shlomo Zalman’s first interpretation of Rabbeinu Chananel or he does not believe that Rabbeinu Chananel’s approach constitutes normative Halachah. The fact that the Rambam and other <i>Rishonim</i> do not articulate a similar approach leads one to this conclusion.
  Anesthetics at a Brit
  For many decades, <i>poskim</i> have debated the halachic viability of general and local anesthesia at a <i>brit milah</i>. Recently, <i>poskim</i> have vigorously debated the use of a topical anesthetic at a <i>brit</i>. This debate remains unresolved; some mohelim use an anesthetic while many do not. We will begin by reviewing the classic debate regarding the use of anesthesia at a <i>brit milah</i>.
  Three distinct approaches to this problem appear in halachic literature. Rav Yechiel Yaakov Weinberg (<i>Teshuvot Seridei Eish</i> 3:96) adopts an intermediate approach to this issue. He rejects the idea that experiencing pain is an integral component of the <i>milah</i> process. On the other hand, he notes that many <i>Rishonim</i> rule in accordance with the opinion that <i>mitzvot tzrichot kavannah</i> (one must have intention to fulfill the mitzvah in order to fulfill one’s obligation – see Rosh Hashanah 28b). Rav Weinberg argues that one cannot be placed under general anesthesia for <i>milah,</i> since an anesthetized patient is unable to have <i>kavannah</i> to fulfill the mitzvah of <i>milah</i>. This argument is especially important in light of the Magen Avraham's ruling (O.C. 60:3) that <i>kavannah</i> for a Torah-level obligation is indispensable. Rav Weinberg is emphatic regarding the <i>milah</i> of an adult convert. Rav Weinberg writes, "Behold, it is by the Brit that he enters into Kedushat Yisrael, and if he is sleeping during the Milah, who ushers him into Kedushat Yisrael?" Indeed, Rav Yitzchok Fischer, a mohel from Monsey, New York told this author that Rav Moshe Feinstein permits only local anesthetic for an adult convert but forbids a general anesthetic for an adult convert.
  Rav Weinberg's argument applies only to the circumcision of an adult. Rav Weinberg does not object to the use of full anesthesia on a baby, but he does not endorse it either, since its use constitutes a departure from accepted practice. On the other hand, he permits using a local anesthetic even for an adult. He explains, "We have not found anywhere that there is a <i>mitzvah </i>to circumcise in a manner that inflicts pain."
  On the other hand, <i>Teshuvot Maharsham</i> (6:85) and Rav Ovadia Yosef (<i>Teshuvot Yabia Omer</i> 5 Y.D. 22) permit full anesthesia even for an adult. Rav Ovadia cites the celebrated responsum of the <i>Maharach Ohr Zarua</i> (11) who asserts that the fundamental mitzvah of milah is the state of being circumcised, not the action of circumcision per se. Accordingly, he argues, it is irrelevant that one lacks <i>kavannah</i> while he is anesthetized. One fulfills the mitzvah simply by being circumcised. Rav Ovadia adds, "The Kavannah of the Mohel suffices for the one being circumcised, especially since the Mohel is the latter's Shliach [agent]." The <i>Maharsham</i> emphasizes (based on Gittin 70b) that agency does not expire when the <i>meshaleiach</i> (principle) sleeps. The <i>Maharsham</i> equates an anesthetized patient with a sleeping individual. Rav Weinberg, on the other hand, believes that "An anesthetized person is the Halachic equivalent of a rock, and one does not fulfill the Mitzvah on a rock." Rav Ovadia Yosef concludes his <i>teshuvah</i> by relating that the <i>beit din </i>of Jerusalem authorized the performance of a <i>brit</i> on an adult convert to whom general anesthesia was administered.
  Rav Meir Arik (<i>Teshuvot Imrei Yosher</i> 2:40), however, forbids even a local anesthetic. He argues that the experience of pain is an integral component of the mitzvah of <i>brit milah</i>. He notes that the Gemara (Bava Kama 85a) indicates that anesthetics were available to <i>Chazal</i>. He points out that despite such availability, <i>Chazal</i> chose not to use anesthetics at a Brit. He infers that <i>Chazal</i> oppose using anesthetics at a <i>brit </i>because pain is an essential component of a <i>brit</i>.
  The <i>Imrei Yosher</i> argues that this idea is reflected by the Midrash (<i>Breishit Rabbah</i> 47:9, commenting on Breishit 17:26) that states, "Rav Abba said, 'He suffered pain so that Hashem will double his reward.’" Rav Weinberg, though, counters that this Midrash merely demonstrates that Avraham Avinu desired the reward for the pain he had to endure for <i>brit milah</i>. It does not prove that there is an obligation to inflict pain on baby boys who do not intend to be rewarded for their pain.
  Rav J. David Bleich (<i>Tradition</i> Summer 1999 - vol. 33 no. 4: 56-60), in turn, explains the argument of the <i>Imrei Yosher</i>. Rav Bleich notes that if one experienced pain in the process of a performing a mitzvah, such as obtaining an etrog that was ensconced in thorns, he would not receive any additional reward for the pain he endured in order to obtain the etrog133<i class="footnote">Avi Levinson asks why does he not receive extra reward due to the Mishnah’s teaching “The reward is in accordance with the pain one endures” (Avot 5:19). One may respond that the Rambam mentions this rule only once in his entire <i>Mishnah Torah</i>, in the context of the mitzvah of Torah study (<i>Hilchot Talmud Torah</i> 3:6). I heard reported in the name of Rav Yosef Dov Soloveitchik that we may infer from the Rambam that this rule applies only to the mitzvah of Talmud Torah. Indeed, the Mishnah in <i>Pirkei Avot</i> is addressing the mitzvah of Talmud Torah. However, the fact that the Rambam does not present this rule in the context of <i>brit milah</i> might serve as evidence that the Midrash cited by Rav Arik does not reflect normative Halachah. </i>. Why, then, does the Midrash state that Avraham received reward for the pain he endured during <i>brit milah</i>? Rav Arik's answer is that experiencing pain is not an aspect of the mitzvah of taking an rtrog, but it does constitute an aspect of the mitzvah of <i>brit milah</i>.
  The Current Dispute - Topical Anesthetic
  Recently, doctors have developed topical anesthetics such as EMLA, which reduce the pain that babies experience during a <i>brit</i>. There has been a mixed reaction amongst <i>poskim</i> regarding their use at a <i>brit</i>. Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 20:73) forbids its use based on the aforementioned <i>Imrei Yosher</i>. Rav Shmuel Wosner (<i>Teshuvot Sheivet Halevi</i> 5:147:2) also forbids the use of even a local anesthetic on a baby except in case of great need. Rav Yitzchok Fischer told me that Rav Wosner told him that one may use a local anesthetic when circumcising an adult because of the great need to do so. Rav Wosner believes that absent great need, one should not tamper with the traditional character of <i>brit milah</i>, which includes experiencing pain. As proof for his assertion, he cites the Gemara (Gittin 57b) that explains the <i>pasuk</i> (<i>Tehillim</i> 44:23) "For Your sake we are killed all of the day" to be referring to <i>brit milah</i>.
  On the other hand, Dr. Abraham S. Abraham (<i>Nishmat Avraham</i> 5:83-84) reports that Rav Yaakov Hillel, a leading contemporary Kabbalist, investigated the matter and found no source in the Zohar and other Kabalistic works that teach there is any special value attached to the suffering of a baby during his <i>brit</i> 134<i class="footnote">This omission also may prove that the Midrash cited by Rav Arik does not constitute mainstream Torah thought. </i>. In fact, the Rav Hillel remarked that despite the fact that the Zohar teaches that birth pains atone for Chavah's sin, we make efforts to reduce the pain a woman experiences during birth, and no rabbinic authority objects. Indeed, Dr. Abraham reports that both Rav Shlomo Zalman Auerbach and Rav Yosef Shalom Eliashiv told him that if there is no medical problem associated with the use of a topical anesthesia, there is an obligation to use it at a <i>brit</i> in order to reduce the suffering of the baby.
  Conclusion
  Rav Fischer reports that an injection of a local anesthetic is administered at almost all circumcisions of adults. A general anesthetic is used for a Jewish-born adult only in cases of great need. In virtually all cases, <i>p</i><i>oskim</i> do not permit general anesthesia for an adult convert.
  Some mohelim have begun to use topical anesthetics. However, many mohelim decline to use them, in part due to reports of medical complications caused by these anesthetics.135<i class="footnote">Interestingly, Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 4:40) writes that we do not use anesthetics at a <i>brit</i> because of the danger associated with anesthetics. His concern might also apply to topical anesthetic creams. </i> Rav Shmuel Tokayer reports that he has heard of incidents where the anesthetic cream caused the foreskin to become inflamed, and it is highly imprudent to perform a <i>brit</i> on an inflamed foreskin. Rav Fischer told me that he has heard similar reports and expressed similar concerns. Rav Fischer added that anesthetic cream sometimes causes high blood pressure and increased bleeding at a <i>brit</i>. One should consult his Rav and pediatrician regarding this issue.
  
  Beit Din
  
  Beit Din and Dina d'Malchuta Dina
  
  Introduction
  A major issue that contemporary <i>batei din</i> grapple with is when to apply the Talmudic principle of <i>dina d’malchuta dina,</i> the obligation to honor the laws of land in which we reside. This principle certainly requires us to pay taxes and to obey civil laws such as traffic regulations (see Shulchan Aruch C.M. 369 and our later chapter devoted to this issue). However, a major area of debate is the extent to which <i>dina d’malchuta dina,</i> should be employed when resolving a monetary dispute between two Jews.
  In this essay, we will explore a case that was adjudicated by the <i>beit din</i> of Sderot that highlights the challenge of balancing the application of Halachah and civil law. Rav Yaakov Bareili, a Dayan on the panel that adjudicated this case, presents his minority ruling in <i>Techumin</i> (26:350-354). We shall present his argument and what appears to be the reasoning of the majority opinion, which to the best of my knowledge has not been published.136<i class="footnote">For a discussion of publishing minority opinions, which seemingly violates Halachah (Shulchan Aruch C.M. 19:1), see Professor Eliav Schochetman's <i>Seder HaDin</i> (pp. 371-374) and <i>Techumin</i> (19:235-238).</i>
  The Case
  An employer fired his secretary when she was pregnant, in violation of an Israeli civil law that prohibits such a firing absent a special permit. The employer, on the other hand, explained that he fired her because the business was collapsing, not because of her pregnancy, and thus he did not violate the civil law. Indeed, the business closed not long after the firing. The employer submitted an application for a firing permit five months subsequent to the firing, only to learn that such permits do not work retroactively. The secretary sued the employer in <i>beit din</i> for the five months of salary due to her in accordance with Israeli civil law.
  <i>Dina d’Malchuta Dina</i>
  The Rama (C.M. 369:11) rules that <i>beit din</i> applies the principle of <i>dina d’malchuta dina,</i> when the law is issued <i>l’takanat bnei hamedinah</i>," "For the betterment of society.". For example, the Rama (C.M. 73:14) rules that <i>beit din</i> must honor a civil law forbidding a lender from selling an item he holds as collateral until one year has passed, even though Halachah permits a lender to sell the collateral after thirty days in case of default on payment of the loan. Such a law serves to better society, as the government perceives a need to stimulate the economy by easing the terms of repaying a loan.
  The Shach (C.M. 73:39) strongly disagrees with the Rama. He writes, "Since, according to Halacha, the lender may sell the collateral after thirty days of default, how can we follow the <i>nochri</i> laws and ignore the Torah law? God forbid - such a matter should not happen in the Jewish community!" The Shach maintains that no one would sanction following <i>dina d’malchuta dina,</i> when it contradicts Halachah outright. There is significant debate amongst the <i>poskim</i> regarding how to rule in this dispute.137<i class="footnote">See <i>Teshuvot Chatam Sofer</i> C.M. 44, <i>Teshuvot Imrei Yosher</i> 2:252:2, <i>Teshuvot Doveiv Meisharim</i> 77, <i>Teshuvot Igrot Moshe</i> C.M. 2:62, <i>Kitvei HaGaon Rav Y.E. Henkin</i> 2:96, <i>Chazon Ish</i> C.M. <i>Likkutim</i> 16, and Rav Hershel Schachter’s essay in <i>The Journal of Halacha and Contemporary Society</i> 1:122-128. Also see <i>Gray Matter</i> 3:146-147. </i> According to those who follow the Rama, it seems clear that <i>beit din</i> should recognize the Israeli law forbidding the firing of a pregnant woman. This law clearly betters society, as it encourages couples to have children. An employer is tempted to fire a pregnant employee because she is entitled to her salary even during the months after the birth, during which she legally is permitted to miss work to take care of the newborn. Accordingly, women living under economic stress might choose not to have children in order not to jeopardize their jobs. The law, accordingly, provides an incentive for families to have more children without the fear of losing employment.
  The Sderot <i>beit din</i>, though, grappled with the question of whether it should respect the aspect of this Israeli civil law that forbids retroactive permission to fire a pregnant employee under special circumstances. Rav Bareili feels that this feature of the law was not made for the betterment of society. Rather, it is simply a matter of how to efficiently manage the application of the law. Thus, he argues, since the <i>beit din </i>is convinced of the legitimacy of the claim of the employer that he fired the woman because of problems with the business and that he was unaware that the law could not be applied retroactively, it is authorized to grant the retroactive exemption from the civil law and excuse the employer from having to pay the five months of salary.138<i class="footnote">We should note that the <i>beit din</i> panel unanimously agreed that <i>dina d’malchuta dina</i> applies even to laws issued by the Israeli government. This follows the ruling of the Shulchan Aruch (C.M. 369:6) that <i>dina d’malchuta dina</i> applies even to a Jewish king, the opinion of Rav Kook (<i>Teshuvot Mishpat Kohen</i> 144) that <i>dina d’malchuta dina</i> applies even in a democracy, and the view of Rav Ovadia Yosef (<i>Teshuvot Yechaveh Da’at</i> 5:64) that this principle extends to a Jewish government in Israel that does not abide entirely by Torah law.</i>
  <i>Minhag HaMedinah</i>
  In monetary relationships, especially between employer and employee, <i>minhag hamedinah</i>, common business practice in that locale, determines what the assumptions of the parties were unless they explicitly stipulated otherwise (see, for example, Shulchan Aruch C.M. 331). As the <i>Chazon Ish</i> (C.M. <i>Likkutim</i> 16:9) puts it, “Minhag HaMedinah determines the intentions of the parties.” Thus, since it is common business practice to follow civil law in Israel, civil law can be considered part of <i>minhag hamedinah</i> even if <i>beit din</i>does not recognize the law as one made for the betterment of society. Rav Bareili reports that his two colleagues on the panel believed that it should be assumed that the employer hired the secretary in accordance with the <i>minhag hamedinah</i>, which included the application of all the details of the law, even the disqualification of retroactive permits.
  Rav Bareili, though, argues that the Rama (C.M. 331:1) rules that <i>minhag hamedinah</i> governs only when it is a common matter and has occurred numerous times. The Vilna Gaon (Bei’ur Hagra E.H.66:48, in a related context) explains that one may assume the intention of the parties was to follow the <i>minhag hamedinah</i> only if the <i>minhag</i> "was known to all." Rav Bareili argues that the rule that special permission to fire a pregnant employee does not apply retroactively is not sufficiently well-known to be recognized as a <i>minhag hamedinah</i>.
  Moreover, Rav Bareili argues that this particular aspect of the law is arbitrary and unjust and should thus not be recognized by <i>beit din</i>. He cites a number of precedents, including a ruling of Rav Moshe Shternbuch (<i>Teshuvot V’hanhagot</i> 3:472), in which the latter recognizes severance pay as a legitimate <i>minhag hamedinah</i>, since it is just and fair. However, the law entitling severance pay to a worker who worked only for a very brief time is incompatible with the Torah view of justice in the context of the particular case that he adjudicated. As such, Rav Shternbuch concluded that such an unfair rule does not qualify as a legitimate <i>minhag hamedinah</i>139<i class="footnote">See <i>Tosafot Bava Batra</i> 2a s.v. <i>B’gevil </i>for a classic example where Chazal do not accept the legitimacy of a commonly accepted commercial practice. </i>.
  <i>Pesharah</i>
  Israeli <i>beit din </i>arbitration agreements typically include a provision authorizing the <i>beit din </i>to adjudicate the dispute "in accordance with both strict Halacha and Pesharah" (equity; see <i>Gray Matter</i> 2:193-200 for further explanation of the concept of <i>pesharah</i>). Rav Bareili argues that it is inequitable to hold the employer responsible for payment of five months’ salary in this case because (as the <i>beit din </i>discovered during its hearing) the employer had sought to fire the secretary before she had become pregnant. She had pleaded with the employer to delay the firing for three months in order for her to qualify for unemployment insurance. He complied with her request, and it appears that the secretary, in turn, attempted to cynically take advantage of his kindness.
  Rav Bareili cites Rav Kook (<i>Teshuvot Orach Mishpat</i> C.M. no. 1), who explains that <i>beit din</i>, after first determining what strict Halachah demands, must then consider whether a more equitable solution is appropriate. Rav Kook notes that if <i>beit din </i>feels that the verdict demanded by strict Halachah is unfair due to the particular circumstances of the case in question, <i>beit din </i>should issue a verdict based on <i>pesharah </i>if it is empowered to do so by the arbitration agreement.
   Accordingly, Rav Bareili felt that the <i>beit din</i>'s mandate to consider <i>pesharah</i> precluded its requiring the employer to pay the entire five months' salary.
  The Majority Opinion
  I surmise that the majority opinion in this case, which ruled in favor of the secretary, had practical considerations. Many Dayanim today, especially those who serve the Modern Orthodox community, seek to make <i>beit din </i>an attractive option for people to resolve their disputes, so that they will not use civil courts, which is in severe violation of Halachah (see Shulchan Aruch C.M. 26 and <i>Gray Matter</i> 2:164-178). These Dayanim are aware of two common critiques of <i>beit din</i>: that contemporary <i>batei din</i> seem to arbitrarily choose when to follow Halachah in opposition to civil law and that contemporary Dayanim seem to arbitrarily decide when to rule in accordance with <i>pesharah</i> in contradistinction to strict Halachah.
  I have been told that, in an attempt to counter such perceptions, some Dayanim seek to rule as closely as possible to strict Halachah and to implement <i>dina d’malchuta dina </i>and <i>minhag hamedinah</i> to the fullest extent allowed by Halachah. For example, the Beth Din of America, in its Rules and Procedures (available at www.bethdin.org), states in section 3 (e): “In situations where the parties to a dispute explicitly or implicitly accept the common commercial practices of any particular trade, profession or community… the Beth Din will accept such common commercial practices as providing the rules of decision governing the decision of the panel to the fullest extent permitted by Jewish Law.”140<i class="footnote">In addition, to avoid some of these perceptions, some Dayanim offer a reasoned opinion in order to educate the parties regarding the grounds for following the din and for <i>pesharah</i>, even though Halachah and civil arbitration laws do not require the submission of a reasoned opinion (see <i>Gray Matter</i> 3:237-242)</i>
  Accordingly, the <i>beit din </i>ruled in favor of the secretary because her view aligned more closely with the straightforward <i>minhag hamedinah</i>, which did not authorize the retroactive permit. The Dayanim did not consider <i>pesharah</i> to be a relevant factor because they wished to avoid the appearance of "arbitrarily" making use of equity as opposed to strict Halachah.
  Conclusion
  The intention of this discussion is to enlighten our readers regarding the thought processes and approaches of contemporary <i>batei din</i> and to encourage the use of <i>beit din </i>as opposed to civil court whenever possible. Some Dayanim believe that a broader application of civil law whenever permitted by Halachah and minimal application <i>pesharah</i> helps achieve the goal of Jews adjudicating their disputes within the community. Nonetheless, we must bear in mind that since the mandate of the <i>beit din </i>includes ruling in accordance with equity, the mitzvah of “<i>tzedek tzedek tirdof</i>,” “Justice, justice shall you pursue” (Devarim 16:20 and Sanhedrin 32b) requires the application of Pesharah in certain situations (Rav Kook, <i>Teshuvot Orach Mishpat</i> C.M. no. 1).
  
  A Dental Clinic in an Apartment Building
  
  Introduction
  In this essay, I shall present a decision issued in 1982 by the Ashdod District State of Israel <i>beit din</i>. The <i>beit din </i>consisted of three Dayanim, each of whom rose to prominence in the <i>beit din </i>in Israel: Rav Shlomo Dichovsky, Rav Masood Elchadad and Rav Yaakov Eliazoroff. The third volume of <i>Techumin</i> presents the opinions written by each of the Dayanim in the case. I shall present the conflicting views of Rav Eliazoroff and Rav Elchadad and then the deciding opinion written by Rav Dichovsky, the <i>Av Beit Din</i> (chief justice) of the tribunal.
  The case involved a dentist who opened a dental clinic in an apartment building. The plaintiff, a neighbor in the apartment building, objected to the disturbance caused by the many patients entering and exiting the clinic. He also voiced concern that the clinic would devalue his property, since higher value is attached to property located in a quiet and peaceful location.
  Background – Gemara, Shulchan Aruch, and <i>Teshuvot Tzitz Eliezer</i>
  The Mishnah (Bava Batra 20b) teaches that if someone wishes to open a store in a residential area, the residents may prevent the opening of the store with the claim that they cannot sleep due to the noise generated by the people entering and leaving the store.
  The Gemara (Bava Batra 21a) adds that if one of the members of a residential area wishes to open a medical or bloodletting practice in the area, the neighbors may prevent him from doing so. Rashi (ad. loc. s.v. <i>Rofei</i>) explains that the "medical practice" in question is that of a mohel. The Shulchan Aruch (C.M. 156:1) codifies these rulings as normative Halachah.
  However, the Gemara (Bava Batra ad. loc.) presents an exception to this rule: a rebbe may teach Torah to children despite the neighbors’ objection to the noise generated by the children. This exception is made due to public policy considerations, which strongly favor maximizing opportunities for Jewish children to study Torah. The Shulchan Aruch (C.M. 156:3) codifies this rule and adds, repeating the ruling of the <i>Tur</i> (C.M. 156), a sweeping generalization: “The same applies to all Mitzvah matters; neighbors may not object.” The <i>Tur</i>’s examples of mitzvot are distributing tzedakah and convening a minyan to daven.
  Two premier commentaries to the Shulchan Aruch, the <i>Sema</i> and the <i>Taz,</i> note the apparent contradiction in the rulings of the Shulchan Aruch. On one hand, the Shulchan Aruch asserts that neighbors cannot object to the establishment of a mitzvah enterprise in their midst. Accordingly, why does the Shulchan Aruch recognize the right of neighbors to object to a doctor’s serving as a mohel in their midst?
  The <i>Sema </i>(C.M. 156:3) attempts to resolve the problem by explaining that the Shulchan Aruch refers to a conventional doctor, not a mohel. The Taz (C.M. 156:1), however, notes that a conventional doctor also performs a mitzvah by healing his patients.141<i class="footnote">See Rambam’s commentary to the Mishnah, Nedarim 4:4.</i> The Taz resolves the inconsistency of the Shulchan Aruch's ruling by distinguishing between a mitzvah that “depends on the gathering of people,” such as the minyan and tzedakah distribution center mentioned by the <i>Tur,</i> and a mitzvah for which the service provider “can go to the homes of the people he is servicing,” such as a <i>brit milah</i>. Neighbors can object to the latter type of mitzvah but not the former.
  The <i>Chatam Sofer</i> implicitly resolves (in his commentary to Bava Batra 21a) the contradiction in the Shulchan Aruch. He distinguishes between a doctor who treats life-threatening illnesses (to whose presence the neighbors cannot object) and a doctor who does not treat life-threatening illnesses (to whose presence the neighbors may object), such as the bloodletter specifically mentioned in the Shulchan Aruch.
  The <i>Aruch Hashulchan</i> (C.M. 156:4), in turn, resolves the contradiction by explaining that the doctor referred to in the Shulchan Aruch is one who teaches others the art of medicine, which technically is not a mitzvah. However, a doctor who treats patients is permitted to open a clinic in a residential area against his neighbors’ objections.
  In light of the <i>Taz, Chatam Sofer</i> and <i>Aruch Hashulchan</i>’s explanations of the Shulchan Aruch, Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 10:25:30) permits contemporary doctors to open a medical clinic in a cooperative apartment building despite the objections of many of the building’s residents. According to all three approaches, a medical doctor is permitted to maintain an office in a residential area. A physician in the current circumstances is not able to come to his patients since many of his diagnostic tools are not portable, medical doctors routinely deal with life threatening matters and the physician is practicing medince and not merely teaching medicine.
  Rav Eliazoroff – The Dental Clinic Must Go
  Rav Eliazoroff, based on three considerations, ruled in favor of the neighbor who objected to the dental clinic. He notes that Rav Waldenberg’s ruling enabled the community to receive affordable healthcare. In this case, though, since the dentist already had an office elsewhere, there was no compelling reason to permit the dental clinic to operate in a residential area.
  In addition, Rav Eliazoroff considers the <i>Chatam Sofer</i>’s implicit resolution. Rav Eliazoroff argues that a dentist is analogous to the Shulchan Aruch’s bloodletter, since most dental care does not involve treatment for life-threatening situations. Thus, Rav Waldenberg’s ruling regarding a doctor is not relevant regarding a dentist.
  Finally, Rav Eliazoroff notes the civil zoning laws’ designation of certain areas as residential and other areas as commercial (or both). The area where the dental clinic was located was zoned as a residential area, and one cannot open a commercial enterprise in such a place without receiving a variance from the local municipality. Rav Eliazoroff writes that the Ashdod municipality responded to his inquiry into this matter and stated that “it is reasonable to assume” that the zoning board would not grant the variance if neighbors were to object. Rav Eliazoroff cites an oral ruling from Rav Yosef Shalom Eliashiv, one of this generation’s leading halachic authorities, as permitting neighbors to voice such objections to the municipal authorities142<i class="footnote">Rav Hershel Schachter (in a shiur delivered in Teaneck, New Jersey) clarifies, though, that if one has a zoning issue one must proceed to <i>beit din</i> to have this matter resolved (as was done in this case) even though the <i>beit din</i> will likely consider the civil law as a major consideration in its ruling. . </i>. This is because zoning regulations establish a local custom, and people move into an area with the expectation that the local custom will prevail. Rav Eliazoroff also cites Rav Avraham Shapira (<i>Teshuvot Devar Avraham 1:</i>29), who rules that Halachah honors the civil regulation of spacing between two houses. Accordingly, since the zoning laws, in all likelihood, would forbid the dental clinic, Rav Eliazoroff feels that Halachah should forbid it as well.
  Rav Eliazoroff concludes accordingly that the dental clinic must relocate. However, he suggests the following compromise: <i>beit din </i>should allow the dentist to remain in the apartment until the end of his lease, but the dentist should make maximum effort to minimize the disturbance caused by his patients.
  Rav Elchadad – The Dentist May Stay
  Rav Elchadad, though, argued that public policy is in favor of this dental clinic, since it was located in a <i>chareidi</i> neighborhood and maintained separate hours for men and women, in harmony with <i>chareidi</i> values. Such separation was not available at the dentist’s other office or anywhere else in the town and thus constituted a “Mitzvah matter,” which, according to the Shulchan Aruch, overrides neighbors’ objections. In fact, Rav Elchadad writes that he consulted Rav Eliashiv about this specific situation, and Rav Eliashiv responded that the establishment of separate hours for men and women constitutes a great mitzvah and justifies this dental clinic’s remaining open despite the neighbor’s objections. Thus, even though the dentist is not providing life-saving treatment, neighbors may not object to the opening of the dental office in this particular circumstance. Rav Eliashiv, however, required the dentist to indemnify the neighbor for the decrease in his property’s value143<i class="footnote">This is a somewhat surprising ruling since the lowered value seems to constitute only indirect damage (<i>grama</i>) and in such cases <i>beit din </i>cannot impose payment obligations (Bava Kama 55b). Perhaps Rav Eliashiv agrees with Rav Zalman Nechemia Goldberg’s ruling (cited in <i>Gray Matter</i> 2:197) that if the parties agree to adjudicate the claim based on <i>pesharah</i> (compromise) the <i>beit din</i> may obligate a party to pay their grama obligations because even in case of grama one must pay in order to satisfy the demands of the “heavenly court” (<i>Bava Kama ibid</i>.). </i>.
  Moreover, Rav Elchadad points to a distinction between the civil law endorsed by Rav Shapira regarding space between houses and the zoning regulations at issue in this case. The fact that it is only “reasonable to assume” that the municipality will honor the objection of the neighbor demonstrates that the zoning regulations are not absolute and that much room is left to the discretion of the local zoning board. In such a case, Torah law should prevail, since we rule based on civil laws only if they apply in all circumstances and do not depend on the judgment of a panel (see <i>Sema</i> C.M. 369:21). Since there is a compelling Torah reason to allow the dental clinic to operate in a residential area, the neighbor’s complaint should be ignored.
  Rav Dichovsky – The Dentist Must Go
  Rav Dichovsky, as the chief justice of the panel, cast the deciding vote in favor of the neighbor who objected to the dentist’s presence. He focused on the aforementioned distinctions of the <i>Sema </i>and the Taz. He believes that the <i>Sema</i> adopts the <i>Chatam Sofer’s </i>distinction between a doctor who provides care for life-threatening illnesses (the neighbors cannot object to his practice) and those who care for non-life-threatening illnesses (to whose practices the neighbors can object). Rav Dichovsky writes that he consulted a prominent dentist, who informed him that dental work that deals with life-threatening issues is not handled by an ordinary dentist but by a specialist, such as an oral surgeon. Thus, neighbors may object to the presence of an ordinary dentist in their midst.
  Moreover, he interprets the Taz as teaching that neighbors’ objections are ignored only against a mitzvah enterprise that involves, by the mitzvah’s very definition, the gathering of a group of people, such as teaching children Torah, praying, and distributing tzedakah (which requires the presence of three; see Bava Batra 8b and Shulchan Aruch Y.D. 256:3). Thus, since dental care is not a mitzvah that involves, by its very definition, a gathering of people, Halachah sustains the neighbor’s objections to a dental clinic’s presence in a residential area. Rav Dichovsky writes that according to this understanding of the Taz’s ruling, neighbors may object to the opening of a medical clinic, leading him to question the ruling of Rav Waldenberg that they may not.
  Rav Dichovsky adds a crucial point: only those activities whose primary purpose is for a mitzvah justify ignoring a neighbor’s complaint. Since the dental clinic’s primary purpose is to provide dental care and not to avoid inter-gender mingling, opening the dental clinic does not constitute a mitzvah that justifies ignoring a resident’s complaint. Rav Dichovsky presents a reductio ad absurdum argument, stating that if Rav Elchadad’s reasoning were correct, Halachah should justify opening any business in a residential area if the proprietor offers Torah literature instead of ordinary periodicals for customers to read in the waiting room.
  Interestingly, Rav Dichovsky does not address the application of the <i>dina d’malchulta dina</i> principle to civil zoning laws. This is particularly interesting in light of the fact that Rav Dichovsky has, at times, argued for Halachah’s recognition of certain elements of civil law, such as civil community property laws, as he writes in essays that appear in volumes eighteen and nineteen of <i>Techumin</i>. Hence, it would seem that one should consult his Rav before invoking civil zoning laws to object to the establishment of an endeavor involving a “Mitzvah matter.”
  Although one may find it shocking that Rav Dichovsky disagrees with the rulings of two leading contemporary authorities, Rav Waldenberg and Rav Eliashiv, this is not unusual practice for Rav Dichovsky. He possesses great knowledge as well as keen analytical ability, and he is regarded as a Dayan of eminent stature144<i class="footnote">See his essay discussing the authority of the leading <i>poskim</i> in <i>Techumin</i> 30:174-191. Rav Dichovsky’s somewhat independent approach has generated criticism in certain circles. See, for example, Rav Avraham Sherman’s essay in <i>Techumin</i> 30:163-173. </i>.
  Conclusion
  Rav Dichovsky rules in favor of closing the dental clinic in the residential area. However, he notes that since the parties to this dispute signed an arbitration agreement authorizing the Dayanim to rule in accordance with both Halachah and <i>pesharah</i> (equity), Rav Eliazoroff’s approach that “it is proper” to wait until the completion of the dentist’s lease before evicting him should be followed.
  In light of the current absence of undisputed halachic guidelines in the area of monetary law, the application of <i>pesharah</i> in this instance is entirely appropriate. How can one fault the dentist for opening a practice in a private area if he believed that rulings of the <i>Aruch Hashulchan</i> and Rav Waldenberg sanctioned this venture? Thus, the <i>beit din</i> acted appropriately by easing the terms of implementation of the verdict despite the fact that it ruled against the dentist. We look forward to a time when Mishnah Berurah and <i>Halachah Berurah</i> (clear halachic guidelines) will be restored to our people.
  
  Who is Religious?
  
  The Case
  A number of observant Jews purchased apartments in a new Israeli neighborhood from a construction company that advertised that it was selling apartments in the area exclusively to observant Jews (“<i>datiyim</i>”). Shortly afterward, however, these Jews discovered that many of the apartments had been purchased by people who did not behave like observant Jews. The men did not wear kippot, the women dressed immodestly, the children did not attend religious schools, and the families did not fully observe Shabbat.
  Since many Israelis wish to live in neighborhoods where the residents share their level of observance and ideology, the buyers sought to nullify the sale on the grounds of fraud (<i>mekach ta’ut</i>), as they claimed that they purchased the apartments because of the advertisement that sales would be only to observant Jews. The seller responded that all those who purchased the apartments represented themselves as observant and even brought a letter signed by a rabbi confirming that they were religious. It seems that the rabbis did not know these people particularly well but simply recognized them from synagogue attendance on Shabbat.
  The case was brought before Rav Eliyahu Schlesinger, the distinguished Rav of the Giloh neighborhood of Jerusalem, for adjudication. Rav Schlesinger, in turn, consulted some of the most prominent halachic authorities in Israel at the time (the early 1990’s), including Rav Chayim David Halevi, Rav Shmuel Wosner, Rav Yitzchak Zilberstein, Rav Natan Gestetner, Rav Zalman Nechemia Goldberg and Rav Shlomo Goren (Rav Schlesinger presents their opinions in <i>Techumin</i> 18:169-183). Each of these <i>poskim</i> offered his perspective on this case. These perspectives hinged to a great extent on the question of the definition of an observant Jew. Rav Schlesinger observes that while the “Who is a Jew?” issue (conversion controversies) has been hotly debated in many circles for decades, this dispute introduces the debate of “Who is Religious?” (<i>dati</i>).
  Rav Chaim David Halevi
  Rav Halevi agrees with Rav Schlesinger’s observation that the common definition of “<i>dati</i>” is not self-evident and is subject to considerable debate. He urges that this case be brought to a prominent <i>beit din</i> (Rabbinical court) for adjudication. The <i>beit din </i>will thoroughly investigate what people intend when they use the term “<i>dati</i>,” as <i>lashon bnei adam,</i> common perceptions and expressions, not formal halachic definitions, dictates the interpretation of a sale (Rambam <i>Hilchot Mechirah</i> 26:8 and Shulchan Aruch C.M. 42:15, 43:27 and 215:8). In this case, the <i>beit din </i>determines what the sellers and buyers intended by using the term, “<i>dati</i>,” by examining what people intend when they use the word, “<i>dati</i>.”
  This is similar to a case in the Gemara (Bava Kama 27a-b) in which one paid for a <i>chavit </i>(barrel) and was given a <i>kad</i> (jar). The Gemara explains that the sale is valid if some people in that locale refer to a jar as a <i>chavit</i>.
  Rav Halevi urges this <i>beit din </i>to issue a public ruling on this matter to serve as a precedent to avoid such disputes in the future. He makes this recommendation because this issue will inevitably arise in other situations.
  Rav Shmuel Wosner
  Rav Wosner notes that even though the halachic definition of an observant Jew is one who fully adheres to every aspect of Torah and rabbinic law, one who attends shul once a week might nonetheless be considered “<i>dati</i>” in <i>lashon bnei adam</i>, even if he violates Shabbat to a certain extent. Rav Wosner adds, however, that if the construction advertised that the apartments would be sold exclusively to “<i>shomrei Torah v’hamitzvah</i>,” the buyers could expect a dramatically different level of observance than that implied by the term, “<i>dati</i>.” We should note that such an issue should be resolved contractually, by using clear terminology that does not allow for ambiguity.
  Rav Yitzchak Zilberstein
  Rav Zilberstein concurs with Rav Halevi and Rav Wosner that this question should be resolved by determining the <i>lashon bnei adam</i>. His contribution to this discussion is that the <i>lashon bnei adam</i> regarding this issue varies greatly from neighborhood to neighborhood. If one were to advertise in the Jerusalem neighborhood of Me’ah She’arim that he is selling only to “observant Jews,” he would imply families in which the wife does not wear only a wig but a complete head covering with a hat on top. On the other hand, if the advertisement was in Tel Aviv’s Dizengoff Square, <i>dati</i> is understood to mean a Sabbath observer. Rav Dr. Aryeh (Ronald) Warburg notes that the Shulchan Aruch (C.M. 218:19) teaches that <i>lashon bnei adam</i> varies from place to place.
  Rav Zilberstein also notes that this matter can be resolved by seeing if the apartments are outfitted for scrupulously observant Jews. For example, if the apartments do not have a terrace suitable for a proper sukkah, it is obvious that the seller did not intend to sell the apartments only to fully observant Jews (common practice in Israel is to have apartments intended for sale to fully observant Jews outfitted with a terrace where a valid sukkah can be erected). Since, if this were the case, the purchasers could have arrived at this conclusion simply from observing the apartments, they would have no claim against the seller.
  Rav Zilberstein concludes that when the matter is in doubt, no money can be extracted from either side. This is an application of the most fundamental rule of dispute resolution, “<i>hamotzi mei’chavei’roh alav hara’ayah</i>,” the burden of proof rests upon the side which seeks to extract the money (Bava Kama 46a). This point underscores the need to resolve proactively such matters with a carefully crafted contract.
  Rav Natan Gestetner and Rav Zalman Nechemia Goldberg
  Rav Gestetner notes that the sellers and buyers did not make a halachicly valid stipulation (<i>t’nai</i>) stating that the sale is valid only if the neighboring apartments are sold to observant Jews. Nonetheless, Rav Gestetner claims that the situation is analogous to the following case in the Shulchan Aruch (C.M. 233:1): if one agrees to sell white wheat and sells red wheat instead, the sale is invalid, and either the buyer or the seller may withdraw from the transaction.
  Rav Gestetner stresses the importance of living in a neighborhood of observant Jews, citing the Mishnah (Avot 1:7), which states, “Distance yourself from a bad neighbor,” and the Gemara <i>(Ketubot</i> 72a), which states, “One cannot live together with a snake.” He also cites the Rambam (<i>Hilchot Dei’ot</i> 6:1), who writes at some length about how one is impacted by his neighbors and community, so one should be sure to surround himself with positive role models. Accordingly, Rav Gestetner concludes, a neighborhood of observant Jews is an entirely different product than a neighborhood that includes those who do not uphold the Torah.
  Rav Gestener rules that if one advertises that one is selling apartments only to “<i>dati</i>” individuals, people purchase them intending to surround themselves with positive role models. Since these people would not want to live in a non-observant community, the sale should be invalid.
  We should note that some Orthodox Jews feel that it beneficial to expose their children to the realities of contemporary life by living in a neighborhood where at least some non-observant Jews reside. Thus, it is not a foregone conclusion that all observant individuals would not agree to live among people who are at best marginally observant of Jewish law (though this assumption might hold true in certain segments of the Orthodox community). Thus, in the absence of a properly formulated <i>t’nai</i>, the purchase cannot be voided, as noted by Rav Zalman Nechemia Goldberg.
  Rav Shlomo Goren
  Rav Goren agrees that the sale cannot be voided because a proper T’nai was not formulated. Rav Goren adds that even were such a condition stipulated, the sale would not necessarily be voided, as Rabi Akiva Eiger (<i>Teshuvah</i> 1:129, cited by Pitchei Teshuvah C.M. 241:11) rules that a condition cannot be invalidated if the condition is ambiguous and was fulfilled in its most minimum sense.
  Accordingly, Rav Goren believes that since the term “<i>dati</i>” is not a well-defined term, the sale cannot be nullified on the basis of the subpar level of observance of some of the people who purchased apartments in the neighborhood. He argues that since some people regard a family as “<i>dati</i>” even if the husband does not don a yarmulke and the wife’s clothing is somewhat immodest, the seller can claim he fulfilled the condition in a minimal fashion. Thus, the sale cannot be canceled.
  We should note that Rav Goren concludes that the buyers have a right to be angry at the seller, since he did not act with the highest levels of integrity and morality (see Mishnah Bava Metzia 6:1). Practically speaking, such conduct by a seller is ill-advised, as he will not succeed in building a good reputation if he does not deliver the promised product in the fullest sense (see Mishnah Bava Metzia 7:5, which dictates to <i>beit din</i> to advise someone that even though the Halachah sides with him in his dispute, he damages his marketability due to his less-than-stellar conduct).
  Conclusion
  Resolving monetary disputes is a daunting challenge. Rav Ben-Zion Uzziel (<i>Teshuvot Mishpetei Uzziel</i> C.M. 1) urges Dayanim (rabbinic judges) to engage in “deep thought and seek much advice,” following the advice of Mishlei 11:14, “Salvation comes with much advice.” The consensus view among the <i>poskim</i> consulted by Rav Schlesinger is that the sale, in most cases, cannot be voided. However, this view behooves both buyers and sellers to carefully clarify the product that is being expected and offered. This will avoid scenarios such as ours which, in the long run, harm the interests of both buyer and seller.
  
  Confiscating Items from Students
  
  
  
  
  
  Do educators enjoy a halachic right to confiscate items from students if those items are interfering with the learning in the classroom? The prohibition of theft is quite serious, as <i>Chazal</i> teach (Sanhedrin 108a, cited in Rashi to Breishit 6:13 s.v. <i>Ki Malah</i>) that the judgment of the generation of the flood was sealed due to its stealing. Thus, we must carefully investigate as to whether Halachah grants this right to educators.
  Burning Clothes on <i>Har Habayit</i>
  The Rambam (<i>Hilchot Geneivah</i> 1:2) and the Shulchan Aruch (C.M. 348:1) state: “One is forbidden to steal even the smallest amount. It is forbidden to steal even merely as a joke or with the intention to return the item, or even on condition to repay the item later. This is all forbidden lest one become habituated to stealing.” Rav Yehudah Henkin (<i>Techumin</i> 8:186-199 and <i>Teshuvot Bnei Banim</i> 2:47), in a responsum in which he advocates ending the practice of educators’ confiscating items from students, adds, “In my humble opinion, there is not one opinion in the Rishonim which permits afflicting a student by taking his property.” Rav Henkin concludes his responsum by noting that confiscation of students’ items “was unheard of in prior generations and is not mentioned by Poskim.”145<i class="footnote">It is important to note that even Rav Henkin concedes that it is a mitzvah to confiscate those items that are forbidden and/or dangerous, such as firearms or drugs. </i>
  Most halachic authorities (such as Rav Asher Bush, <i>Teshuvot Shoel Bishlomo</i> no. 57; Rav Zvi Yehudah Ben Yaakov, <i>Techumin</i> 19:52-53; and Rav Uri Dasberg and Rav Yehudah Shaviv in their critique of Rav Henkin, <i>Techumin</i> 199-201), however, strongly disagree. They discover sources and formulate arguments justifying educators’ taking items from students when appropriate.
  One potential source is the Mishnah (<i>Middot </i>1:2) which relates the following about those guarding at night the gates leading to <i>Har Habayit</i> (the Temple Mount):
  The person in charge of <i>Har Habayit</i> (<i>Ish Har Habayit</i>) would inspect each guard and would have lit torches before him. Any guard who did not rise would be greeted, ‘Shalom Alecha’ (may peace be upon you). If it was apparent that the guard was sleeping, the <i>Ish Har Habayit</i> would hit the guard with his walking stick. In addition, the <i>Ish Har Habayit</i> had permission to burn his clothes… Rabi Eliezer ben Yaakov states that the brother of his mother was once found sleeping, and they burned his clothes.
  One may deduce from this Mishnah that Halachah grants those supervising others the right to punish them by taking away property. Moreover, the <i>Tiferet Yisrael</i> (to <i>Middot </i>ad. loc.) explains that the clothes were responsible for warming the guard and facilitating his sleep. Thus, by burning his clothes (according to <i>Tiferet Yisrael</i>, only his outer garment, presumably a type of coat), the <i>Ish Har Habayit</i> eliminated the distraction that prevented the guard from properly executing his responsibilities. Similarly, one could argue that an educator is permitted to take away the item that distracts the student from executing his responsibilities. However, Rav Henkin responds that specific permission needs to be granted by <i>beit din</i> for such actions; no blanket permission is given to those in a position of authority to take the property of those in their charge.
  Educators’ Permission to Hit Children
  The Gemara (Makkot 8b) teaches that a teacher, as well as a parent, has the right to hit a child to discipline him. The Gemara states that there is a mitzvah to hit even a good student to further discipline him. Rav Henkin infers that <i>Chazal</i> permit only hitting a student, but not taking away his property. Rav Asher Bush, Rav Uri Dasberg and Rav Yehuda Shaviv note that it is implausible to distinguish between hitting a student and confiscating his property. These authorities believe that if <i>Chazal</i> permit hitting a child, then they permit confiscating a child’s property as well.
  While it seems to be forbidden for an educator to strike a child nowadays due to, among other possible factors, civil laws prohibiting such behavior (and the fact that in the current environment it is, as noted by Rav Henkin, counterproductive to do so), temporarily taking away distracting items from students nonetheless remains permissible. Rav Bush explains that the absence of a statement by <i>Chazal</i> or later <i>poskim</i> permitting confiscating items is either due to its obvious inference from the permission to hit a child or because, in previous generations, people generally owned a tiny fraction of what people own today. Although many students today bring their basketballs, sports cards, cell phones, iPods and DS’s to school, students of previous generations owned none of these items. <i>Chazal</i> may not have spoken about confiscating distracing items simply because no such items existed!
  Rav Dasberg marshals a proof to his assertion from the Ramban’s statement (cited by <i>Ritva </i>to<i> Ketubot</i> 86a and <i>Ketzot</i> 39:1) that if Halachah authorizes coercing an individual by harming his body, then <i>beit din</i> may coerce him by taking his property. Rav Henkin, in his response to Rav Dasberg (<i>Techumin</i> 8:201), argues that Rav Dasberg takes this statement out of context, and it is not relevant to the question of confiscating items from students.
  Group Sanctions
  The Shulchan Aruch (C.M. 231:28 based on Bava Batra 9a) presents a
   fundamentally important rule which has a wide variety of applications: “Members of a trade union are permitted to make rules regarding their work, such as an agreement that each worker does not sell his wares on the day his colleague is selling those wares, and they may impose sanctions on any member who fails to abide by these rules.” Thus, one can argue that confiscation should be allowed as a sanction upon the students for not following classroom or school rules.
  Rama clarifies, however, that this Halachah applies only if all the members of the group agree to these rules. Rav Henkin rejects applying this rule to our question because he argues that imposing sanctions would require the agreement of both parents and students. However, if the school has a rulebook which states that teachers and administration may confiscate items, and all students sign this rulebook at the beginning of the school year, then there is no question that items may be taken in accordance with the student’s agreement. Although parental consent is necessary to allow confiscation from students who are minors, if the school rulebook sets forth the policies for taking items, parents send their children to the school with the understanding that the rules will be enforced and thus have consented to the rule permitting confiscation when appropriate.
  Moreover, even if this rule is not set forth explicitly in a rulebook, the Halachah defers to the common practices of a locale (Shulchan Aruch C.M. 215:8 and 331:1-2). Thus, Rav Ben Yaakov notes, since the common practice in elementary and high schools is to confiscate items, consent to attend a school constitutes an implicit agreement to allow educators to take away items that disturb a constructive learning environment. It seems that if students and/or parents object to this practice, they must specify this objection in advance in order for their opinions to have halachic significance. Otherwise, the rules follow the common practice.146<i class="footnote">In some cases, common practice may be different at different types of yeshivot. For example, a radio may be perfectly acceptable to bring to occasionally use in a dormitory of a certain type of yeshiva yet it is totally unacceptable in a different type of yeshiva. </i>
  Rav Ben Yaakov adds that the items that youngsters bring to school may actually belong to their parents, who have allowed their children to make use of their property. Rav Ben Yaakov argues,
  Since parents send their children to school in order to learn and become educated, it is obvious that the parents’ intention is that if their children will use those items in a manner that will disturb their study, the educator is permitted to take the items and return them at a later date.
  Rav Ben Yaakov makes this assumption even in the absence of a school rulebook which sets forth a rule regarding confiscation. One might respond that in today’s age, when some parents overindulge their children, this assumption is not necessarily valid. Thus, it is preferable for a school to clarify this issue in advance with explicit written guidelines as to the consequences of using items that disrupt the educational environment.
  Conclusion
  Mainstream halachic opinion, which is reflected in practice in most Orthodox Jewish educational settings both in Israel and North America (as noted by Rav Ben Yaakov and Rav Bush), permits confiscating items from students if the educator believes that it distracts the students from learning. However, all committed Jews aspire to creating communities where teachers and students are fully invested in their partnership of learning. In such an environment, the question of confiscating items that detract from learning becomes a moot issue, since everyone is learning to the best of their ability, as prophesied by Yeshayahu (54:13): “And all of your children will be students of Hashem, and your children will have much peace.” We pray to speedily attain that situation.
  
  
  
  In our last essay, we concluded that mainstream halachic opinion, which is reflected in practice in most Orthodox Jewish educational settings both in Israel and North America, permits confiscating items from students if the educator believes that the items distract students from learning. We shall now discuss the responsibilities of educators to properly guard the confiscated items and the ramifications if the items are lost.
  Words of Caution
  Rav Yehuda Henkin writes (in his argument to forbid educators to confiscate items, <i>Techumin</i> 8:186-199 and <i>Teshuvot Bnei Banim</i> 2:47) that the confiscated items are often not returned to the students, and thus the Rambam and Shulchan Aruch’s concern (cited in the last chapter), that one will become habituated to theft, is fulfilled. Although this is presumably insufficient reason to ban confiscation altogether, Poskim who permit confiscation would agree that teachers should not abuse this permission. Indeed, Rav Asher Bush (Teshuvot Shoel Bishlomo number 57) cautions:
  However, these justifications (to allow confiscation) do not apply to teachers who continually neglect to return confiscated items. It does not matter whether the items are lost through negligence or indolence (e.g., by placing all confiscated items in an unorganized pile and forgetting which item belongs to which child). The educational loss exceeds the educational gain, since the students are thereby taught poor character traits instead of ethics. Even worse is the practice of some teachers to give the items to their children or to other students. In such a case, they certainly violate the prohibition to steal, even if they have good intentions.
  If the School Loses the Item
  As Rav Bush indicates, educators bear the responsibility to watch the items they confiscate. In fact, if they fail to watch them properly, they can be held liable under the laws of <i>shomrim</i> (guardians). The extent of the liability is disputed by Rav Uri Dasberg and Rav Zvi Yehudah Ben Yaakov (<i>Techumin</i> 19:53-54).147<i class="footnote">It appears that the dispute between Rav Ben Yaakov and Rav Dasberg is actually a dispute between the <i>Machane Ephraim</i> (<i>Hilchot Shomerim</i> no. 31) and the Ketzot Hachoshen (291:6) that is cited in the Pitchei Teshuvah (C.M. 303:1).</i> Rav Dasberg believes that watching confiscated items is part of a teacher’s job, so he/she is considered a <i>shomer sachar </i>(paid watchman), whose liability applies even to a case of theft or acccidental loss. The teacher’s salary, argues Rav Dasberg, includes payment to watch the items confiscated in order to facilitate learning. He argues that the educator’s situation is similar to a worker who is hired (using the terminology of Bava Metzia 10a) “to work for me today” as opposed to one who is hired to perform a specific task.
  Rav Ben Yaakov believes that the teacher, by watching the item, is performing his/her duty, but not one of his/her responsibilities as a teacher. The teacher, he argues, is paid only to teach. Thus, when watching confiscated items, the teacher is regarded only as a <i>shomer chinam</i>, who pays if the item is lost or damaged due to negligence but not if it is lost is due to theft or accidental loss. As evidence to his assertion, Rav Ben Yaakov cites <i>Teshuvot Divrei Malkiel</i> (3:172), who discusses whether a synagogue attendant has the status of a <i>shomer chinam</i> or <i>shomer sachar</i>. He cites the <i>Radbaz</i>, who rules that since he receives a salary for his work and not for guarding lost items, he is classified as a <i>shomer chinam</i>. Rav Ben Yaakov argues that the same should apply to a teacher.
  Since this issue remains a matter of dispute, it is resolved in favor of the Muchzak (the one in possession of the money). Thus, in practice, an educator is held liable only to the extent that he acted negligently.
  A <i>shomer</i> is expected to guard an item in the normal manner of watching that type of item (Shulchan Aruch C.M. 291:13, based on Bava Metzia 42a). Thus, if an educator does not label which item belongs to which particular student and thus is unable to return the confiscated items to the appropriate owners, he is held liable for losing the item.
  
  <i>Ba’alav Imo</i>
  The Torah (Shemot 22:13-14) sets forth the rule of <i>ba’alav imo</i>, that a watchman or borrower is exempt from payment for loss of an item if he employs the owner of that item (see the <i>Torah Temimah</i> ad. loc. for explanations of this rule; one thought is that one cannot simultaneously be obligated to a person and have that person be obligated to him/her). The Shulchan Aruch (C.M. 346:13, based on Bava Metzia 97a) sets forth the rules regarding teachers and students in relation to the rule of <i>ba’alav imo</i>:
  If a teacher’s students must study any Talmudic tractate he chooses, and even if they started one tractate, he may change it to another, the students are ‘lent to him’. Therefore, if the teacher borrowed from one of the students, [the teacher is excused from indemnification in case of loss, since] it is a case of Ba’alav Imo. However, if the teacher must study whatever the students wish to study then ‘he is lent to them.’ … If the decision must be made by both teacher and students…neither are considered to be lent to each other.
  Rav Ben Yaakov argues,
  It seems to me that in today’s schools, the administration is permitted to set the curriculum at all times without the consent of the students. Thus, it is considered as if the students are lent to the school, and it is classified [when an educator watches an item for a student] as Ba’alav Imo (thus, the educators are excused from payment if they lose the students’ items).
  This argument, in my opinion, is far too narrow and disregards the bigger picture. Schools today, at least within Modern Orthodox circles, are hardly the autocratic educational environments of yesteryear. Teachers and administrators cannot capriciously change the curriculum. Moreover, a school which seeks accreditation from national secular organizations (a widespread practice within the Modern Orthodox community in North America) must present a curriculum to the school’s parent body. Certainly, in Jewish schools in the United States, since the students pay to attend school, and there is an independent board of directors, the educational arrangement cannot be considered <i>ba’alav imo</i>. Thus, educators cannot excuse themselves from indemnification in case of loss with the claim of <i>ba’alav imo</i>.
  Guarding an Item on Behalf of a Minor
  In addition, even when the educator watches a minor’s item, he is not excused from paying based on Shulchan Aruch C.M. 96:1, which excuses a <i>s</i><i>homer</i> from responsibility when watching an item for a minor. This is because the Shach (C.M. 96:2) rules that if the <i>shomer</i> is negligent, he pays even if the owner is a minor. Although the <i>Ran</i> (<i>Shavu’ot</i> 22b in the pages of the <i>Rif</i>, quoting the Rashba) excuses the <i>shomer</i> even in case of negligence, the <i>Aruch Hashulchan</i> (C.M. 96:2) rules in accordance with the Shach. In addition, Rav Yitzchak Elchanan Spektor (<i>Teshuvot Nachal Yitzchak</i> 96:2:2) presents an additional argument in favor of responsibility of one who guards an item on behalf of a female minor. Finally, if one assumes that the item is truly owned by the parents of the student (as Rav Ben Yaakov, quoted in the last chapter, argues), the educator is essentially guarding the item on behalf of an adult.
  <i>Lifnim Mishurat Hadin</i> – Acting Beyond the Letter of the Law
  Finally, an educator whose negligence caused the loss of a youngster’s confiscated item creates a very negative impression of Torah if he seeks to escape responsibility with “technical excuses” such as <i>ba’alav imo</i> or that one is not responsible to a minor. The Torah (Devarim 6:18) commands us, “<i>v’asitah hayashar v’hatov b’einei Hashem</i>,” “Do that which is just and good in the eyes of Hashem.” The Ramban (ad. loc.) explains:
  The intention of this verse is to teach that while we must keep God’s specific laws, we must also institute what is ‘the good and straight’ in those areas in which God did not issue any specific rules. This is a great matter because it is impossible for the Torah to regulate every area of human behavior on both an individual level and a communal level. After the Torah presents a number of general ethical commands, such as not to gossip and not to take revenge…it commands us to do good and right in all areas.
  The Gemara strongly encourages us to act <i>lifnim mishurat hadin</i>, beyond the strict letter of the law. In fact, the Gemara (Bava Metzia 30b) stresses the importance of a <i>beit din</i>’s ruling <i>lifnim mishurat hadin</i>, suggesting that Jerusalem was destroyed because its courts ruled according to only strict justice, not <i>lifnim mishurat hadin</i>. Elsewhere (Bava Metzia 83a), the Gemara records another application of <i>lifnim mishurat hadin</i>:
   Some porters [negligently (see Rashi and Maharsha)] broke a barrel of wine belonging to Rabbah bar bar Channah. He seized their garments [as a form of payment], so they complained to Rav. Rav told [Rabbah bar bar Channah], ‘Return their garments.’ [Rabbah] asked, ‘Is that the law?’ Rav replied, ‘Yes, [as the Pasuk (Mishlei 2:20) states,] “You shall walk in the way of good people.” [Rabbah] returned their garments. They further claimed [to Rav], ‘We are poor men, have worked all day, and are hungry. Are we to get nothing?’ Rav ordered [Rabbah], ‘Pay them.’ He asked, ‘Is that the law?’ Rav replied, ‘Yes, [as the Pasuk continues,] “And you shall keep the ways of the righteous.”
  Educators who lose students’ property due to negligence should act <i>lifnim mishurat hadin</i> and not seek to excuse themselves from responsibility based on <i>ba’alav imo</i> or lack of responsibility toward a minor. Educators must exemplify the highest of ethical standards and might even be obligated to act <i>lifnim mishurat hadin</i>. Indeed, Rav Yitzchak Herzog (<i>Teshuvot Heichal Yitzchak</i> C.M. 101) writes, “The community must act Linim Mishurat Hadin.” Those representing a community organization such as a yeshiva clearly are included in this statement.
  Conclusion
  Educators who are negligent in their guarding of confiscated items must indemnify the students the value of the item that was lost. The value is calculated by the market value of the lost item; if there is no market for the item (certain used items have no market value), the educator must replace the lost item (see Rav Yonatan Blass’ discussion of this issue in <i>Techumin</i> 13:388-406).
  
  The Mesirah Dilemma
  
  One who is faced with the possibility of having to report a fellow Jew to the civil government authorities is faced with a difficult dilemma. On one hand, such an action might very well constitute <i>mesirah</i>, a very severe violation of Halachah. On the other hand, violators of just laws must be punished appropriately, and the community must be protected from their dangerous deeds.
  The Severe Sin of <i>Mesirah</i>
  The Shulchan Aruch (C.M. 388:9) states quite emphatically, “One is forbidden to hand a Jew to a non-Jew, be it [the Jew’s] person or his money, even if the Jew is a <i>rasha</i> (evildoer) and <i>ba’al aveirot </i>(a sinnner), and even if the Jew is harassing him.” The consequences of <i>mesirah </i>are unusually severe. The Shulchan Aruch (<i>ibid</i>.) notes that the <i>moser </i>has no share in Olam Haba; the Gemara (Rosh Hashanah 17a) lists <i>mesirah</i> among the sins with punishments that last forever. A <i>moser</i> is even classified as a <i>nochri</i> in regard to <i>shechitah</i> (Rama Y.D. 2:9) and writing a Sefer Torah (Shulchan Aruch Y.D. 281:3).
  The Shulchan Aruch (C.M. 388:10) states, “It is permitted to kill a <i>moser</i> even nowadays (in the absence of a Sanhedrin).” This is not meant to apply only in theory. The <i>Margali’ot HaYam</i> (Sanhedrin 46a) relates a bone-chilling episode that his father related to him as a child (the <i>Margali’ot HaYam</i> was written in the mid-twentieth century). In his hometown of Greiding, Poland, there was a violent and brazen <i>moser </i>who entered the shul one year immediately before the onset of Yom Kippur. The <i>moser </i>stood wrapped in his tallit near the Rav by the eastern wall. A few men approached the <i>moser</i>, grabbed him, and used his tallit to close his mouth. They brought him to the river located near the shul and deposited him in the river. The <i>Margaliot HaYam</i> notes that not one of those present at the shul revealed what had happened when the local authorities investigated the cause of death.
  This harsh approach to <i>mesirah </i>is quite understandable when one considers the history of <i>mesirah</i>. Classic examples include the Jews who informed Paroh of Moshe Rabbenu’s killing the Mitzri (see Rashi to Shemot 2:15 s.v. <i>VaYishma Paroh</i>) and the Jew who informed the Roman government of Rabi Shimon Bar Yochai’s mild criticism of the Roman government (see Shabbat 33b). Both Moshe Rabbeinu and Rabi Shimon bar Yochai were forced into hiding for very long periods of time to save their lives. The long and damaging history of Jewish informers through the twentieth century is chronicled in the <i>Encyclopedia Judaica</i>’s entry on “Informers.” Informers have done incalculable damage to individuals Jews as well as Jewish communities during the past two thousand years. They have cost lives and caused irreparable harm to countless individuals and communities. The <i>moser </i>is treated so harshly, explain the Gra (Bei’ur Hagra, C.M. 388:59) and the <i>Sema</i> (388:29), since he is classified as a <i>rodeif</i> (one who attempts to kill another).
  The <i>Aruch Hashulchan</i>’s Approach
  This harsh approach is most understandable when the <i>moser</i> reports a Jew’s entirely defensible action to an evil, oppressive government. Does the same apply to governments that treat Jews relatively fairly and have relatively fair systems of justice? The <i>Aruch Hashulchan</i> (C.M. 388:7) writes that the rules of <i>moser</i> apply only to an unjust government. Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 19:52) deduces from the fact that the <i>Aruch Hashulchan</i> praises not only the Russian czar (for ruling justly) but also the British government that the <i>Aruch Hashulchan</i> made this point not only due to his concern for government censors.
  Rav Hershel Schachter adopts a similar approach (<i>The Journal of Halacha and Contemporary Society</i> 1:118):
  A ‘moser’ is one who aids a pirate, a crooked government official, or a tyrant-king to obtain money illegally from his fellow Jew. Even if the Jew has actually done something wrong, but if the secular government or the ruler would exact a punishment far beyond that which the crime should require, then it is likewise forbidden to report him. If, however, the government is entitled to its taxes, or is permitted to punish criminals as offenders, there is no problem of mesirah in telling the government information needed for them to collect their taxes or to apprehend their man.
  Nonetheless, no contemporary halachic authority regards the rules of <i>moser</i> as entirely null and void in Western democracies, even in those countries, such as the United States, that have often shown incredible kindness to Jews. Even Rav Schachter (in a brief essay titled “Regarding <i>Mesirah</i>”, 2007, available at www.torahweb.org) voices concern that a Jew would unduly suffer from other inmates in certain prisons (Rav Schachter distinguishes between federal and state prisons) or that lingering anti-Semitic attitudes would cause an offender to receive a punishment beyond what he deserves. Rav Schachter writes that if such concerns are indeed relevant, then turning in such an offender would be considered <i>mesirah</i>.
  Furthermore, Rav Schachter notes (The Journal of Halacha and Contemporary Society ad. loc.):
  One critical point should however be added: There is no problem of <i>mesirah</i> in informing the government of a Jewish criminal, even if they penalize the criminal with a punishment more severe than the Torah requires, because even a non-Jewish government is authorized to punish and penalize above and beyond the law, <i>shelo min hadin</i>, for the purpose of maintaining law and order. However, this only applies in the situation when the Jewish offender or criminal has at least violated some Torah law. But if he did absolutely nothing wrong in the eyes of the Torah, then giving him over to the government would constitute a violation of <i>mesirah</i>.
  Similarly, Rav Waldenberg does not simply cite the <i>Aruch Hashulchan</i> in his responsum (<i>Teshuvot Tzitz Eliezer</i> 19:52) regarding a physician’s informing the police about child abuse. The <i>Aruch Hashulchan</i>’s position is but one consideration in his discussion of <i>mesirah</i>. A review of the rulings of other contemporary <i>poskim</i> clearly indicates that the prohibition of <i>mesirah</i> does indeed apply in certain situations even in contemporary Western democracies. For example, see <i>Teshuvot Igrot Moshe</i> C.M. 1:8, <i>Teshuvot V’hanhagot</i> 1:807 and <i>Pitchei Choshen </i>volume five, chapter four.
  Accordingly, while the severity of the prohibition of <i>mesirah </i>has been considerably reduced in our times (see <i>Teshuvot Beit Yitzchak</i> Y.D. 2:49:12 and <i>Pitchei Choshen</i> ad. loc. n. 1), the prohibition nonetheless remains in effect. Thus, one must consult a Rav before informing government authorities of suspected criminal acts committed by a fellow Jew.
  Solving the Dilemma
  Unlike previous generations’ communities, our current Jewish communities do not have the means to properly investigate and enforce criminal law, as noted by Rav Waldenberg in his aforementioned responsum. Indeed, the Beth Din of America does not adjudicate any matters of a criminal nature. Rav Schachter (in a lecture delivered in Teaneck, New Jersey, accessible at www.torahweb.org under the title, “Should I Call the Police? Clarifying the <i>Isurim </i>of <i>Mesirah </i>and <i>Chilul Hashem</i>”) bemoans the fact that criminals are pressured to leave their own communities but subsequently perpetrate their nefarious deeds in the communities to which they move. Thus, there is a need, at least in some cases, to inform the government of the criminal activities of fellow Jews. While it is difficult to set clear guidelines as to the application of the <i>mesirah</i> rules in Western democracies, an overall picture and impression can be gleaned from a review of a number of rulings of the great <i>poskim</i> of the past fifty years regarding the application of the prohibition of <i>mesirah</i> in the contemporary circumstance.
  Kashrut Fraud
  Rav Moshe Feinstein (ad. loc.) was consulted by the <i>Vaad Harabanim</i> (rabbinic board) of Baltimore regarding a case in which an individual forged <i>kashrut</i> seals and affixed them to non-kosher meat. Rav Moshe writes that there is “<u>concern” </u>for <i>mesirah</i> if the <i>Vaad Harabanim</i> would report the offender to the government, since he would be fined and incarcerated. Rav Moshe believes that these are inappropriate punishments, as the proper consequence according to Jewish law is simply to disqualify this individual from selling kosher products. Rav Moshe does, however, permit informing government officials if the rabbis determine that they are otherwise incapable of stopping the offender from continuing to sell kosher products. Rav Moshe, nonetheless, requires that the rabbis first warn the wrongdoer that they will press charges against him in civil court if he does not abide by the rabbis’ ruling. This ruling is an excellent example of how to balance being fair to the offender and honoring the prohibition of <i>mesirah</i> on the one hand, yet protecting the community on the other hand.
  Serving as an Internal Revenue Service Auditor
  In another <i>teshuvah</i>, Rav Moshe (ad loc. no. 92) permits serving as a tax auditor for the United States Internal Revenue Service. He reasons that if one does not accept this job, someone else will; thus, violators would be discovered in any event. He adds that one may assume that most of an auditor’s job does not involve discovering tax fraud, since most returns are filed in an honest manner.
  This ruling again serves as an example of the application of the <i>mesirah</i> rules in the current environment. It is hard to imagine that Rav Moshe would permit a Jew to serve as a tax auditor for a corrupt government such as the Roman government in the time of the Gemara or the Egyptian government in <i>Sefer </i>Shemot. An IRS auditor is highly distinguishable from a “<i>mocheis</i>,” an unjust tax collector strongly condemned by <i>Chazal</i> (for example, Bava Kama 113a) since the IRS essentially acts in a fair and just manner. Nonetheless, Rav Moshe presents two reasons to justify such employment and does not respond simply that the <i>mesirah</i> prohibition does not apply in the current environment.
  An Epileptic Driver
  Rav Ovadia Yosef (<i>Teshuvot Yechave Da’at</i> 4:60) was asked if it is permissible for a physician to reveal to government officials in charge of issuing drivers’ licenses that a particular candidate for a license is hiding the fact that he suffers from uncontrolled and unpredictable episodes of epilepsy. Rav Yosef responded that one is not only permitted to reveal this information, but one must reveal such information. He rules that a doctor should even violate his Hippocratic Oath not to reveal confidential information in this instance, since such a person driving a vehicle constitutes a danger to life and property. Rav Yosef stresses in this <i>teshuvah</i> that although it is most often forbidden to speak <i>lashon hara</i>, it is occasionally a <i>mitzvah </i>to tell <i>lashon hara</i> in order to save others from serious harm.
  Rav Yosef, in this <i>teshuvah,</i> does not even raise the issue of <i>mesirah</i>. This might be for a number of reasons, including the fact that the physician would not be causing the potential driver to be imprisoned or to suffer any direct loss, financial or otherwise. He is merely ensuring that the individual does not receive that to which he is not entitled.
  Theft
  Rav Sinai Adler, the Rav of Ashdod, posed the following question to Rav Yosef Shalom Eliashiv (<i>Kovetz Teshuvot</i> 1:198). There was an incident in which cash was stolen from a <i>tzedakah</i> box, and all indications pointed to one individual. The situation was quite serious, since the suspected offender had a large family and was a Torah professional. In response, Rav Eliashiv cited Rav Meir Eisenstadt (<i>Teshuvot Panim Me’irot</i> 2:155), who ruled that, in a case with <i>raglayim ladavar</i>, ample evidence, that a certain individual stole money, that individual should be punished. However, he refrained from permitting the handing over of the suspect to the local authorities, due to concern that they would kill the offender (see Bava Kama 117a, which cites <i>Yeshayahu</i> 51:20). Rav Eliashiv adds that since this concern is currently not relevant, it is essentially permitted to report the offender to the police.148<i class="footnote">Similarly, in Teshuvot Yabia Omer C.M. 10:7, Rav Ovadia Yosef permits handing over a Jewish murderer to a non-Jewish government that will incarcerate him for life, but not to a government that will execute him.</i> Nonetheless, Rav Eliashiv expressed concern for <i>chillul Hashem</i> due to the suspect’s employment in a Torah field; therefore, he left the decision to the discretion of Rav Sinai Adler to assess whether the damage caused by the report to the police would be worse than the theft. Since the local Rav was intimately familiar with all the details of the situation, he was the most qualified to make the final decision in this case.
  Service as an Assistant District Attorney
  An Orthodox woman who was serving as an assistant district attorney (ADA) in an American city was assigned the task of prosecuting an Orthodox man accused of severe child abuse. She asked me if Halachah permitted her to do so, and I consulted Rav Hershel Schachter. Rav Schachter responded that she may prosecute him, as <i>batei din</i> today lack any jurisdiction over criminal matters, so the accused would otherwise not be punished and would repeat his heinous crime.
  Rav Schachter explained that this ruling was based on Rashi (Gittin 9b s.v. <i>K’sheirin </i>and s.v. <i>Chutz</i>) and <i>Teshuvot Maraham Schick</i> (C.M. 50). Rashi presents the universal obligation of <i>dinim</i>, to insure a just society, as the source for the rule of <i>dina d’malchuta dina</i>, our obligation to honor civil laws. According to Rashi’s approach, the non-Jews’ obligation of <i>dinim</i> impacts on Jews as well to the extent that we must follow the laws they have promulgated to establish a proper society. Thus, a non-Jewish government is halachically empowered to punish Jewish criminals when Jews are unable to do so. Moreover, Jews are permitted to assist a fair non-Jewish government’s just prosecution of a Jewish criminal.
  The <i>Maharam Schick</i> cites the following Gemara (Bava Metzia 83b-84a) to further this point:
  Rabi Elazar son of Rabi Shimon met a police officer. Rabi Elazar said to him, “How can you detect the thieves … ? Perhaps you take the inno¬cent and leave behind the guilty!” The officer replied, “And what shall I do? It is the king’s command.” [Rabbi Elazar then advised this police¬man how to determine who was a thief and who was not.] … The royal court heard a report of this incident and decreed, “Let the reader of the letter become the mes¬senger.” Rabi Elazar son of Rabi Shimon was brought to the court, and he proceeded to appre¬hend thieves. Rabi Yehoshua son of Karchah sent word to him, “Vinegar, son of wine (i.e., inferior son of a superior father)! How long will you deliver the people of our God for slaugh¬ter?” Rabi Elazar sent the reply, “I eradicate thorns from the vineyard.” Rabi Yehoshua responded, “Let the Owner of the vineyard come and eradicate His thorns.” … A similar incident befell¬ Rabi Yishmael the son of Rabi Yosi. The prophet Elijah ap¬peared to him and re¬buked him. … “What can I do? It is the royal decree,” responded Rabi Yish¬mael. Elijah retorted, “Your father fled to Assia, you flee to Laodica (i.e., you should flee and not obey).”
  The <i>Maharam Schick</i> applied this to a dreadful question that was posed to him. An individual’s brother died unexpectedly, and the widow was suspected of having poisoned him. There were numerous indications and somewhat of an admission that she had committed the crime. At first, the <i>Maharam Schick</i> thought that the crime should not be reported to the civil authorities (of late nineteenth century Hungary), since they judge and execute based on self-incrimination. However, he concluded that it is permissible to report the crime based on Rabi Elazar son of Rabi Shimon’s behavior. He also notes that the Rashba (in a <i>teshuvah </i>presented by the <i>Beit Yosef</i> C.M. 388) cites this passage from the Gemara and applies it in practice. The <i>Maharam Schick</i>, however (following the aforementioned <i>teshuvah </i>of the Rashba), notes that we deduce from Eliyahu HaNavi’s reprimands that it is not <i>midat chassidut</i> (pious behavior) to report such behavior to the authorities. Thus, <i>Maharam Schick</i> concludes that <i>Gedolei Yisrael</i> (leading Torah authorities) should refrain from such reporting, but it is entirely permissible for ordinary Jews to report the crime to the authorities.
  Similarly, Rav Schachter permitted the young woman to prosecute the Jewish man accused of severe child abuse. Rav Schachter added that the Jewish community is unable to solve the problem by itself, as the offender will simply move to another community and create the same problem elsewhere. Thus, we are reliant on the local authorities for our protection, so a Jew may pursue the civil prosecution.
  Moreover, the <i>Ritva</i> (Bava Metzia 83b s.v. <i>Amar Lahem</i>) provides justification for assisting the government’s carrying out harsh penalties that are not completely in accordance with Jewish law. He asks how Rabi Elazar convicted offenders without hearing testimony from valid witnesses who issued a <i>hatra’ah</i> (warning), especially since the Sanhedrin was no longer functioning. He responds that it is the responsibility of the government to execute even without witnesses and <i>hatra’ah</i> in order to instill discipline, as King David did when he executed the young Amalekite who reported that he killed King Sha’ul (<i>Shmuel</i> II 1:13-16). In fact, Rav Eliashiv (ad. loc. 3:231) applies this principle to the United States government in a <i>teshuvah</i> written in 2004. Thus, the woman’s prosecution of the man accused of child abuse would be permitted, since it helps the government fulfill its duties of instilling discipline in society.
  It seems that on the basis of this ruling (as well as Rav Moshe’s aforementioned ruling regarding service as a tax auditor for the Internal Revenue Service), it is permitted to serve as a Hebrew translator for the United States Federal Bureau of Investigations. Even though a Hebrew translator may help the government discover and prosecute Jewish criminals, the Halachah permits a Jew to help just government prosecution of the criminals under its jurisdiction.
  Child Abuse
  Rav Waldenburg (Teshuvot Tzitz Eliezer 19:52) permits a physician to report situations of child abuse to government authorities.149<i class="footnote">Rav Waldenberg was asked about cases in which it is likely that, if the physician reports the abuse to the government, the child will be transferred from a religious family to a non-Jewish or non-religious home. Rav Waldenberg permits reporting such cases only if there is legitimate concern for the life of the child. However, if the concern for the child’s education were not to exist, Rav Waldenberg would permit reporting any case of child abuse. For additional discussion of the issue of transferring a child to a non-observant home, see Rav Shlomo Zalman Auerbach’s position cited in <i>Nishmat Avraham</i> 4:208.</i> Rav Waldenburg makes a critically important interpretation of Shulchan Aruch C.M. 388:9, which states that <i>mesirah</i> is forbidden even if the Jew being reported is “an evildoer and sinner.” Rav Waldenburg explains that the Shulchan Aruch is not speaking of a case in which the <i>mesirah</i> is to prevent the evildoer from continuing to violate a sin. Rather, the Shulchan Aruch states that the fact that someone is a sinner does not justify a <i>mesirah</i> for an unrelated cause. However, according to Rav Waldenberg, the Shulchan Aruch allows informing the government authorities of a man’s crimes if the government will prevent the evildoer from continuing to perpetrate these crimes.
  Even though the Shulchan Aruch (<i>ibid</i>.) forbids <i>mesirah</i> if only an individual is being victimized, this applies if the wrongdoer engages merely in verbal abuse (see Rama ad. loc., Shach ad. loc. number 45 and Bei’ur Hagra ad. loc. no. 59). If, however, there is substantial abuse, the victim is permitted to save himself, and, as Rav Waldenburg notes, the community is obligated to protect the welfare of its children and report suspected abuse to the civil authorities.
  We should clarify that verbal abuse does not justify <i>mesirah </i>only in a situation such as the one described by the Gemara (Gittin 7a) in which local ruffians where taunting Mar Ukvah (see Bei’ur Hagra ad. loc. no. 57). These individuals constituted a nuisance to the rabbi but did not cause substantial harm. However, an individual in a position of power, such as a parent or teacher, who verbally abuses those in his care, does indeed cause substantial harm. Therefore, it is permitted to report such a person’s abusive behavior. A school bully taunting weaker students may also be considered to be causing substantial harm.
  An additional factor in favor of reporting child abuse is that civil law in many locales mandates clergy and educators to report child abusers to the local police. Thus, the “royal decree” principle, articulated in the aforementioned Gemara (Bava Metzia 83b-84a) might serve as another justification for reporting suspected child abusers to the civil authorities.
  Rav Schachter (in his aforementioned Teaneck address) stressed that parents and educators should teach children to report to their parents about situations of abuse. He noted that most cases of abuse have been unreported, in part because the victims were not trained or prepared to report such behavior. Once parents and educators encourage youngsters to report to them, the incidence of unreported abuse should subside.
  Rav Schachter cautions, though, that sometimes these reports are of highly questionable veracity. Therefore, Rav Schachter advises rabbanim to consult competent professionals who can determine the legitimacy of the claims of abuse. This concern also stresses the need for each case to be presented to a competent halachic authority for adjudication before it is reported to government authority. Rav Eliashiv (<i>Kovetz Teshuvot </i>3:231) expresses similar concern. An example of a Rav who makes such determinations is Rav David Cohen, who serves as the <i>posek</i> for Ohel, a New York social service organization. Rav Cohen is regularly consulted about such situations. Indeed, the example of Potiphar’s wife’s unfounded slander against Yosef HaTzaddik compels us to exercise caution and to do our best to ensure that innocent individuals are not maligned by either malicious or disturbed individuals.
  Testifying in Civil Court
  In ordinary cases, the Rama (<i>Teshuvot </i>52) prohibits testifying in a secular court when all litigants are Jewish, and both the Shulchan Aruch (C.M. 28:3) and the Rama (<i>ibid.</i>) prohibit testifying in a secular court if court will take money away from a Jew in violation of Halachah (e.g., one is forbidden to serve as the lone witness to testify that a Jew owes money to a non-Jew, since the court might force the Jew to pay based on one witness’s testimony, whereas a beit din requires two witnesses’ testimonies). However, Rav Schachter notes (in the aforementioned Torah Web article):
  If the non-Jewish governmental authorities know that one Jew is concealing information about another Jew in order to save him from punishment, the Shulchan Aruch (C.M. 28:3) considers this a situation of <i>chilul Hashem</i>. Similarly, for many generations it was the practice that if a <i>gneiva</i> (theft) had occurred, and suspicion had fallen on the Jewish community, rather than allow that suspicion to hover over the entire community, the <i>roshei hakehol </i>(lay community leaders), with the permission of the rabbonim, would inform the non-Jewish authorities who might possibly be the real <i>ganav</i> (Be’er Hagola, C.M. 388:12).
  Jury Duty
  Rav Menashe Klein (<i>Teshuvot Mishneh Halachot</i> 4:213) prohibits serving on a jury, especially when the case includes a Jewish litigant, because performing jury duty glorifies a non-Torah legal system150<i class="footnote">This is the same reasoning that is applied to the prohibition of adjudicating a dispute between two Jews in a civil court (see Gittin 88b and Rambam <i>Hilchot Sanhedrin</i> 26:7).</i> and also gives the false impression that Jews are allowed to use civil courts to adjudicate disputes among themselves. Rav Hershel Schachter told Rav Ezra Frazer (recorded in my <i>Gray Matter</i> 2:173) that he strongly disagrees with this ruling. He explained that the Halachah requires non-Jews to establish legal systems, so a Jew does nothing wrong by participating as a juror in civil courts,151<i class="footnote">Rav Klein (<i>ibid</i>.) raises this line of thought as a possibility but rejects it, claiming that a part of this Halachah requires non-Jews to appoint only non-Jewish judges (and therefore jurors) in their legal systems.</i> unless both litigants are Jewish (in which case facilitating their trial supports a sin152<i class="footnote">It is forbidden for Jews to adjudicate a monetary dispute in a civil court. See Shulchan Aruch C.M. 26 and <i>Gray Matter</i> 2:164-178.</i>). Regarding capital trials, Rav Schachter argues that a just and legitimate government has the right to punish criminals within reason. For example, if a Jew murdered, a non-Jewish government may legitimately execute him. Accordingly, Jewish jurors may vote to convict a Jewish defendant if solid evidence convinces them that he committed murder. Rav Yitzchak Isaac Liebes (<i>Teshuvot Beit Avi</i> 2:144) also permits Jews to perform jury duty in both civil and capital cases.
  Broken Sidewalks
  Rav Schachter was asked (at the aforementioned Teaneck lecture) whether it is permissible to report to the local municipality a Jewish neighbor’s failure to maintain his sidewalk. Rav Schachter replied that the neighbor’s actions constitute a failure to execute his halachic obligations toward his community. The Halachah (Bava Batra 7b and Shulchan Aruch C.M. 163:1) requires all residents of a town to contribute to the construction of a protective wall around the town. The Rama (<i>ibid.</i>) rules that even a minority of the residents may insist that a levy be imposed upon all townspeople in order to raise funds for such purposes. The Rama adds that this rule applies to any communal need. In addition, he rules that townspeople may compel one another to contribute to a fund to provide for the needs of strangers in their midst and to provide charity for the poor. Accordingly, everyone is required to take the necessary steps, even if it involves financial expenditure, to ensure the safety and security of the members of his community. Thus, if one does not properly maintain his property, and his negligence presents a danger to his neighbors, there is cause for a <i>Din Torah</i>.
  Rav Schachter stated that the proper course of action is for one to summon his Jewish neighbor to the local <i>beit din</i> to seek the <i>beit din</i>’s help in ensuring the neighbor’s compliance with his both halachic and civic duties in repairing the sidewalk. Rav Schachter explained that it is forbidden to present this issue to the civil authorities, for this matter is like any other financial dispute with another Jew, which Halachah requires that we present to <i>beit din</i>, not the civil authorities, for adjudication (Shulchan Aruch 26:1; note the especially harsh language the Shulchan Aruch uses regarding those who choose to present their claims to civil court instead of <i>beit din</i>). Rav Schachter concluded that if the neighbor either refuses to attend the <i>beit din </i>hearing or refuses to follow the <i>beit din</i>’s order, the <i>beit din </i>will likely grant the plaintiff permission to seek relief from the civil authorities (<i>heteir arka’ot</i>), in accordance with the Halachah set forth in Shulchan Aruch (ad. loc. no. 2).
  The State of Israel
  Rav Yitzchak Herzog (<i>Techukah Leyisrael Al Pi Hatorah</i> 1:173) notes that rabbis in Israel acknowledged their inability to punish criminals, and they consequently chose to abdicate responsibility for criminal matters:
  In a rabbinic convention held in Tel Aviv [immediately before the establishment of the State of Israel], the rabbis unanimously voiced their opinion that they wish to give up control of any jurisdiction over criminal matters. They noted that even in Eastern Europe, the rabbinate ceded jurisdiction on the matters to the non-rabbinic authorities, such as the famous <i>Vaad Arba Aratzot</i> [Council of Four Lands], who acted as the equivalent of the Talmudic <i>shivah tovei ha’ir</i> – seven recognized community leaders – and had exclusive control of imposition of taxes and punishing rebels.
  Rabbeinu Nissim (<i>Derashot Haran</i>, <i>Derosh</i> 11) explains that the Torah’s ideal system for enforcing criminal law requires the Sanhedrin and the king to work in tandem. In the modern State of Israel, the batei din and the government do not enjoy a close enough relationship to facilitate this type of collaboration. Thus, the <i>batei</i><i> </i><i>din</i> could not uphold the Torah’s criminal legal system, so they relinquished their jurisdiction over criminal law (see <i>Techumin</i> 24:313 note 1).
  Rav Itamar Warhaftig (<i>Techumin</i> 10:190) argues:
  The rabbis themselves did not wish to deal with [criminal law]; they were prepared for civil courts to adjudicate this area. Hence, it is unthinkable that rabbis should not recognize an arrangement that they [or their predecessors] themselves desired!
  By this argument, reporting a criminal matter to Israeli government officials does not constitute a violation of <i>mesirah</i>. Accordingly, Rav Naftali Bar-Ilan (<i>Techumin</i> 10:190) permits testifying in Israeli civil court if one witnessed a fatal automobile accident. He notes, however, that if monetary disputes arise from the accident, these should be submitted to a <i>beit din</i>.
  Rav Waldenburg (ad. loc.) similarly distinguishes between <i>mesirah</i> to a Jewish government and <i>mesirah</i> to a non-Jewish government. Nonetheless, Rav Eliashiv (ad. loc. 1:198) does not appear to make such a distinction. Thus, even in Israel, one should consult a competent halachic authority before reporting a suspected criminal to the civil authorities.
  Lobbying Against the Israeli Government
  Those who are members of and support organizations which lobby the American government to pressure the Israeli government to act against what it perceives as its own security interests should consider the historical and halachic implications of such actions. Although such support is motivated by what is perceived as acting in the best interests of the State of Israel, one should consider that the democratically elected government of Israel is authorized by the people of Israel to determine their security needs. A review of the damage done by Jews throughout history to other Jews should motivate one to seek the guidance of his Rav regarding the halachic propriety of his actions. Similarly, a Rav should at least consult leading halachic authorities before he criticizes the State of Israel in the general media. Even sincere motivations do not justify harming the security of the nearly six million Jews who reside in Medinat Yisrael. The unusual severity of the punishments for <i>mesirah</i> behooves one to exercise great caution and engage in proper halachic consultation before speaking out against the Jewish State in the general media.
  Conclusion
  It is difficult to achieve a balance between the prohibition of <i>mesirah</i> and the need to protect ourselves and our communities. One cannot outline all-encompassing and clear-cut rules that will apply to every situation. Nonetheless, the cases we have discussed illuminate how halachic authorities strive to achieve such a balance and emphasize the need to consult a competent halachic authority for both his halachic insight and his overall wisdom as to how to treat any situation which potentially requires reporting an individual to the civil authorities. We should caution, however, that one who reasonably perceives that he is in imminent danger that does not allow for rabbinic consultation should call the police and ensure that he receives the protection he needs. May we merit serving as both devoted servants of Hashem and law-abiding citizens of the countries in which we reside, and may we thus relegate the Halachah of <i>mesirah</i> to purely theoretical study.
  Postscript – Rabbinical Council of America Press Release of July 26, 2011
  RCA Reaffirms Importance of Referring Suspected Child Abuse or Endangerment to the Authorities Without Delay
  The Rabbinical Council of America has today reaffirmed its position that those with reasonable suspicion or first hand knowledge of abuse or endangerment have a religious obligation to report that abuse to the secular legal authorities without delay. One of the unique features of Jewish law is that it imposes upon every member of the community an obligation to help others avoid danger. The biblical verse "do not stand by while your neighbor's blood is shed" is understood by Jewish Law to mandate that one must do all in one's power to prevent harm to others - even if monetary harm, but certainly physical harm.
  Consistent with that Torah obligation, if one becomes aware of an instance of child abuse or endangerment, one is obligated to refer the matter to the secular authorities immediately, as the prohibition of <i>mesirah</i> (i.e., referring an allegation against a fellow Jew to government authority) does not apply in such a case.
  As always where the facts are uncertain one should use common sense and consultations with experts, both lay and rabbinic, to determine how and when to report such matters to the authorities. False accusations are harmful to those falsely accused - but unreported abuse or endangerment can be life-threatening, as we have recently been tragically reminded.
  In addition and as a separate matter, those within the Jewish community whom secular law deems to be "mandated reporters," must certainly obey the particular reporting requirements, which vary from state to state in the United States. A person covered by mandatory reporter laws must comply with those laws, even in a case in which Jewish law might otherwise not require a person to report such child abuse or endangerment.
  
  Dina d'Malchuta Dina
  
  A most fundamental Halachah which describes how Jews should relate to the surrounding society is “<i>dina d’malchuta dina</i>” (Bava Batra 54b). Literally translated, this means, “The law of the land is the law.” A fuller explanation is that Halachah demands obedience to the laws promulgated by the civil authorities. There is much discussion as to the precise parameters of this Halachah (see <i>Encyclopedia Talmudit</i> 7:295-308 for a summary; for a discussion to what extent rabbinical judges consider incorporating civil law in their decisions, see our earlier chapter entitled “Firing a Pregnant Woman – the Application of <i>Dina d’malchuta Dina</i>”). In this chapter, we shall elucidate a responsum authored by Rav Ovadia Yosef (<i>Teshuvot Yechave Da’at</i> 5:64) regarding the halachic obligation for Israeli citizens to pay income tax to the State of Israel’s treasury.
  <i>Dina d’malchuta Dina</i> – A Torah Obligation
  Rav Yosef cites Beit Shmuel (E, H. 28:3), who rules that <i>dina d’malchuta dina</i> is a merely rabbinic obligation. However, Rav Ovadia cites <i>Avnei Milu’im</i> (28:2) and <i>Teshuvot Chatam Sofer</i> (Y.D. 314), who vigorously dispute Beit Shmuel's assertion and rule that it is a Torah-level obligation to honor civil laws. Indeed, Rav Yosef marshals evidence to this ruling from the Rashba’s commentary to <i>Nedarim 28a</i> (s.v<i>. B'Mocheis</i>) and concludes, “From the words of the Rishonim (authorities of the Middle Ages), it is evident that they subscribe to the opinion of the Chatam Sofer.” Proof that <i>dina d’malchuta dina</i> constitutes a Torah-level obligation may be derived from Rashi (Gittin 9b s.v. <i>D’dina</i>) who presents the Torah level obligation for all of humanity to establish just laws and societies (<i>dinim</i>) as the basis for <i>dina d’malchuta dina</i>.
  <i>Dina d’Malchuta Dina</i> in Eretz Yisrael
  Rav Ovadia continues his discussion by citing the celebrated opinion of the <i>Ran</i> (Nedarim 28a s.v. <i>B’Mocheis Ha’Omeid</i>, citing <i>Tosafot</i>) and the Rashba that <i>dina d’malchuta dina</i> does not apply to taxes in Eretz Yisrael. They argue that <i>dina d’malchuta dina </i>applies only outside of Eretz Yisrael, where kings own the lands and enjoy the right to banish residents who disobey orders (for alternative theories as to why we must observe the law of the land, see <i>Encyclopedia Talmudit</i> 7:295-297). However, this is not true of Jewish kings, since all Jews are partners in Eretz Yisrael, and the king does not own Eretz Yisrael more than any other Jew does.
  Rav Yosef, however, notes that the Rambam (<i>Hilchot Gezeilah Va’Aveidah</i> 5:11 and in his commentary to the <i>Mishnah Nedarim</i> 3:4) and the <i>Meiri </i>(Nedarim 28a) specifically mention that <i>dina d’malchuta dina</i> applies to both Jewish and non-Jewish kings.153<i class="footnote">Rav Yosef also quotes the Rashba (<i>Teshuvot</i> 2:134), who rules that <i>dina d'malchuta dina</i> applies to those laws of Jewish kings which are designed to protect the people. According to Rav Yosef, taxes are included in this category, since the government uses the taxes to promote the security of its citizens.</i> . The <i>Beit Yosef</i> (C.M. 369 s.v. <i>U’Mah She’Amar Bein She’hu Melech</i>) marshals evidence to this opinion from the Gemara (Bava Kama 113a). This passage seeks to interpret a Mishnah in Nedarim (3:4) which seems to imply that we do not follow the rule of <i>dina d’malchuta dina</i>. The Gemara answers that the Mishnah applies to unjust tax collection. The <i>Beit Yosef</i> observes that the Gemara does not answer that <i>dina d’malchuta dina</i> does not apply to Jewish kings in Eretz Yisrael and that this is what the Mishnah in Nedarim speaks about.
  Indeed, both the <i>Tur </i>(C.M. 369) and the Shulchan Aruch (C.M. 369:6) rule that <i>dina d’malchuta dina</i> applies to both Jewish and non-Jewish kings, and none of the commentaries to the Shulchan Aruch challenge this ruling. Rav Ovadia notes that we do not enjoy the right to follow halachic authorities whose opinions are not cited in the Shulchan Aruch or its commentaries. Thus, the opinion that <i>dina d’malchuta dina</i> applies even in Eretz Yisrael constitutes normative Halachah.
  <i>Dina d’malchuta Dina</i> in a Democracy
  Even though the <i>Rishonim </i>and Shulchan Aruch speak of “kings,” Rav Ovadia Yosef rules that <i>dina d’malchuta dina</i> applies in a democracy. He marshals two proofs to this assertion. He cites Bava Kama 113a, as did the <i>Beit Yosef</i>, which does not simply resolve the problematic Mishnah of Nedarim 3:4 by stating that it speaks of a country that is not ruled by a king. Indeed, Rav Yosif notes that <i>Chazal</i> were aware of countries that were not ruled by a king, most famously Rome (as noted by <i>Tosafot</i>, Avodah Zarah 10b s.v. <i>Kol Nesi’eha</i>).
  His second proof is from <i>Rava</i> (Bava Kama 113b) supporting the principle of <i>dina d’malchuta dina</i> from the fact that the government “cuts trees and builds bridges from them, and we utilize the bridges.” This reasoning surely applies in a democracy as well as a monarchy; thus, <i>dina d’malchuta dina</i> applies in a democracy as well. One could add that it is certainly the case that <i>dina d’malchuta dina</i> applies in a government that is (in the famous words of Abraham Lincoln in his Gettysburg address) “of the people, by the people, for the people,” since the government does not collect taxes to enrich the leadership, as is the case in a monarchy. Rather, a democratic government collects taxes to pay for the vital services it provides, such as the military, police, roads, etc. One pays taxes in a democracy to pay for the services rendered, as Halachah requires one who has been provided with a service to pay for it (Bava Kama 55b, Bava Metzia 76a and 101a, and Bava Batra 4b).
  Rav Ovadia cites a celebrated ruling of Rav Kook (Teshuvot Mishpat Kohen 144:14) who rules that:
  When a king does not reign in Israel, all the rules of a king regarding the public needs of the residents of Eretz Yisrael revert to the nation that resides within it and to the government chosen by that nation.
  <i>Dina d’malchuta Dina</i> in a Government Composed of Many Non-Observant Jews
  Rav Ovadia notes that there are some who wish to argue <i>dina d’malchuta dina</i> does not apply to the Israeli government because many of its members are Jews who do not observe Torah, and some even are against Torah observance. Rav Yosef swiftly responds by noting that <i>Tosafot</i> (Sanhedrin 20b s.v. <i>Melech Muttar</i>) and the Zohar (parashat <i>Vayeishev</i>) rule that <i>dina d’malchuta dina</i> applies even to an evil king such as Achav.
  Indeed, at a 2008 convention, leading Religious Zionist rabbinic court judges (who arbitrate monetary disputes) confirmed that <i>dina d’malchuta dina</i> applies in the State of Israel. In a joint statement (published in <i>Techumin</i> 29:144) signed by luminaries such as Rav Yaakov Ariel and Rav Dov Lior, they cited as proof to this assertion, in addition to the aforementioned responsum of Rav Ovadia Yosef, rulings of Rav Shlomo Zalman Auerbach (<i>Teshuvot Minchat Shlomo</i> 1:87), Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 4:28) and Rav Mordechai Eliyahu (<i>Techumin</i> 3:242).
  In this statement, they cited yet another reason to uphold civil laws. <i>Teshuvot Chatam Sofer</i> (C.M. 44) confirms the halachic validity of civil laws which “we too would have instituted, had the situation come before us.” The joint statement specifically mentions the distance automobiles must observe between each other while driving as an example of such a law.
  <i>Dina d’Malchuta Dina</i> in the United States
  Based on the above discussion, it is obvious that <i>dina d’malchuta dina</i> undoubtedly applies in the United States. Indeed, Rav Hershel Schachter (<i>Nefesh Harav</i> p. 269) records the following about Rav Yosef Dov Soloveitchik:
  Our master was very scrupulous about paying government taxes, and I heard in Rav Soloveitchik’s name that if one has specific knowledge that a particular store does not pay sales taxes to the government, it is forbidden to make purchases there, as it violates Lifnei Iveir (the prohibition to cause others to sin).
  I have similarly heard that an organization devoted to reaching out to less observant youngsters once asked Rav Soloveitchik if it was permitted to retain staff and not pay them “on the books” (i.e., pay them in cash to avoid taxes). Rav Soloveichik replied that it is forbidden. The organization told Rav Soloveitchik that it would not have sufficient funds to operate the office if it were to pay its staff “on the books.” Rav Soloveitchik responded that if that was the case, it should close the office, despite its noble work. Rav Moshe Feinstein also rules that <i>dina d’malchuta dina</i> applies in the United States, as is evident from many of his <i>teshuvot</i> (<i>Teshuvot Igrot Moshe</i> C.M. 1:88, in which he specifically rules that one must pay taxes, as well as C.M. 2:29, 2:30 and 2:55). He writes the following in a responsum in which he forbids defrauding the United States government (which he calls a “government of kindness”) to receive more student aid than one deserves (<i>Teshuvot Igrot Moshe</i> C.M. 2:29):
  There exists no manner in which to proclaim such behavior as permissible. Just as Hashem hates sacrifices offered from theft, Hashem hates support of Torah and those who study Torah by means of theft.…The Roshei Yeshivot and directors, who are God-fearing individuals, are not, God forbid, suspected of violating the prohibitions of theft, lying, deception and violation of Dina D’malchuta Dina by any possible proclamation of permissibility because they are aware that this severe sin brings heavenly punishments, in this world and in the next, and contravenes the very purpose of the establishment of Yeshivot – for the students to develop into authentic God-fearing individuals who are exceptionally careful to refrain from any prohibitions regarding financial matters.
  Some argue that <i>dina d’malchuta dina</i> does not apply in the United States because of some corrupt politicians and some laws which one might regard as unjust. I have heard Rav Hershel Schachter respond to this argument by noting that Shmuel declared this principle to apply to the Babylonian government of his time, which was hardly perfect. Similarly, <i>dina d’malchuta dina</i> applies to the United States and other decent governments, despite the fact that these governments are less than perfect. Shmuel’s application of this rule to the government of his time proves that this rule applies to any reasonably decent government, even if these govements are imperfect.
  Acting as Productive and Law-Abiding Citizens of our Host Countries
  Yirmiyahu (29:5-7) prepares us for exile by teaching us to build homes, to marry and to pray and act for the benefit of the city in which we reside. The principle of <i>dina d’malchuta dina</i> certainly is in harmony with Yirmiyahu’s teaching. It also fits with the teaching of <i>Chazal</i> (cited in Rashi to Bemidbar 20:17) that a guest must benefit his host. Strict adherence to <i>dina d’malchuta dina</i> helps insure that we benefit the country in which we reside.
  Conclusion
  It is shameful and disgraceful to disregard the Halachah of <i>dina d’malchuta dina</i> both in Israel and in the United States (and in any other just jurisdiction). In the words of Rav Moshe Feinstein (<i>ibid</i>.), “Besides the prohibitions of theft, there are other terrible sins involved, including lying, deceiving, creating Chillul Hashem (desecration of God’s name) and disgracing Torah and those who study it…and this sin also causes great harm to the great Torah scholars and their students who scrupulously avoid any trace of concern for theft and the like (by ruining their reputations).” In recent decades, many Jews have become exceptionally meticulous about Halachot such as kashrut and Shabbat, even beyond what the letter of the law requires. May we also be fastidiously observant of <i>dina d’malchuta dina</i>, which constitutes a Torah-level obligation according to the <i>Chatam Sofer</i> and Rav Ovadia Yosef.
  
  Hezeik Re'iyah, Encroachment on a Neighbor's Privacy
  
  In this essay, we present an important ruling of the <i>beit din</i> (rabbinic court) of Gush Etzion that appears in <i>Techumin</i> 19:55-59. Rav Gidon Perl, the longtime Rav of Alon Shevut, wrote the decision on behalf of his two colleagues on the court, Rav Eliyahu Blumenzweig and Rav Shlomo Levi, two outstanding Torah scholars associated with Yeshivat Har Etzion.
  It is important to call attention to this case because it adjudicated an important Halachah that is often neglected in our times – <i>hezeik re’iyah</i>, visual trespass. The Gemara devotes much attention to this subject at the beginning of tractate Bava Batra. It is an especially important Halachah, as <i>Chazal</i> (Bava Batra 60a) teach that Bilam praises the Jewish People upon seeing that neighbors position their windows and the entrances to their homes in a manner that protects the privacy of one another.
  How ironic, notes Rav Perl, that in an age that stresses individual rights, this Halachah is overlooked! This case reminds us that despite the overcrowding in many contemporary communities, neighbors should make an effort to uphold each other’s privacy whenever possible. Indeed, this is especially true in light of the fact that some opinions regard this as a Torah-level obligation.
  The Case
  Two neighbors lived opposite each other with thirteen meters between their houses. At first, they forewent building a fence between the two properties, since each intended to allow the other full use of the two neighboring backyards. However, after the first neighbor (“builder”) began to build an addition to his house, the second neighbor (“non-builder”) demanded that “builder” cooperate in the building of a fence dividing the two backyards in order to avoid <i>hezeik re’iyah</i>. As a clarification, we note that Halachah regards encroachment on even one’s everyday activities in one’s property, not only one’s very private moments, as <i>hezeik re’iyah</i>. Furthermore, “non-builder” noted that the addition to the “builder’s” house included a balcony above the ground floor. He objected to this terrace because it would create <i>hezeik re’iyah </i>even if the fence were built, since one would be able, without effort, to see from the terrace into the “non-builder’s” bedroom window.
  “Builder” responded that “non-builder” had already waived his right to build the fence between the properties and that the time to exercise this right had long expired. In regard to the terrace, the first neighbor argued that it was legally approved in accordance with Israeli civil law by the local building authority.
  The Fence
  The <i>beit din</i> ruled that the plaintiff’s right to build the fence and demand that his neighbor’s cooperation had not elapsed. The Shulchan Aruch (C.M. 171:1) states, “If one neighbor demands to split the common outdoor area and to take hold of his share…the other neighbors may be coerced to split the property.” In this case, there was not even a need to split the property, as the property line was already demarcated! Thus, “non-builder” had the right to demand enforcement of the existing property line154<i class="footnote">Yakir Forman notes that this is exactly the situation described in Shulchan Aruch C.M. 171:2 where the property line is demarcated and Halachah demands that each party cooperate in the building of a partition between the properties to avoid <i>hezeik re’iyah</i>. </i>.
  The <i>beit din</i> did not accept the claim that the second neighbor had waived his right to split the property and to the claim of <i>hezeik re’iyah</i>, since the original agreement was made specifically in order to use jointly the space between the houses. In such circumstances, <i>hezeik re’iyah </i>is not a relevant concern. However, once one neighbor wishes to split the yard, the concern for <i>hezeik re’iyah </i>becomes relevant; therefore, both neighbors must cooperate and share in the expenses in the building of a fence.
  ”Builder” further claimed that since the backyard did not face the street, there was no concern for <i>hezeik re’iyah</i>, since the yard paralleled a “<i>rechavah</i>”, open space (see Bava Batra 6b), where, according to Rashi (ad. loc. s.v. <i>Aval Rechava</i>), there is presumably no concern for <i>hezeik re’iyah</i>.
  The <i>beit din</i> rejected this claim as well. It argued that the <i>rechavah</i> described in the Gemara was not regularly traversed and was used primarily for storage. However, the yard in the case we are discussing was used regularly for family activities. It was thus more like a courtyard described in the Mishnah than a <i>rechavah</i>. Therefore, <i>hezeik re’iyah </i>was a relevant concern.
  Finally, the <i>beit din</i> argued that even absent concern for <i>hezeik re’iyah</i>, it is possible that one neighbor can obligate the other to cooperate in the construction of a fence between the yards. Rav Perl cites the <i>Sema</i>’s (no. 4) and the Taz’s comments to Shulchan Aruch C.M. 171:2 as a source for this assertion.
  The Terrace
  The fence would serve to prevent <i>hezeik re’iyah </i>between the ground levels of the two residencies but not regarding the terrace since the partition does not extend high enough. Thus, it would appear that building the terrace creates a serious halachic problem. The terrace builder potentially could claim that a <i>chazakah</i> (established living pattern that cannot be disturbed) was established that the two neighbors live in close proximity, and, therefore, “builder” has established a right to engage in <i>hezeik re’iyah</i>. The <i>beit din</i> dismissed this suggestion, citing the Ramban, who states (<u>Bava Batra</u> 59a), “One can never establish a Chazakah in regard to Hezeik Re’iyah.” The Ramban explains:
  Since it is a prohibition to intentionally engage in Hezeik Re’iyah, and one cannot prevent this, as he cannot remain the entire day with his eyes closed, we must demand that the neighbor eliminate the window [from where he can peer at his neighbor’s activities] in order not to sin constantly.
  The Ramban compares <i>hezeik re’iyah </i>to personal damage such as smoke for which a <i>chazakah</i> can never be established. The Ramban explains that a <i>chazakah</i> may be established only in regards to monetary items such as damage done to a wall, since in regard to monetary matters one may waive his rights. <i>Hezeik re’iyah </i>by contrast is a matter of prohibited activity for which a waiver is irrelevant.
  The Rama (C.M. 154:3) rules in accordance with the Ramban, and some <i>poskim</i> (cited in the <i>Sema</i> 154:10) rule that even a formal <i>kinyan</i> (transaction) does not help effectuate an agreement to waive <i>hezeik re’iyah</i>, since it is an absolute prohibition.
  The <i>beit din</i> noted that even if there are authorities that disagree, “non-builder” emerges victorious, since he protested to <i>beit din</i> immediately when the building of the terrace commenced, before “builder”established a <i>chazakah</i> to maintain the porch. Moreover, <i>Teshuvot Maharival</i> (1:85) rules that <i>hezeik re’iyah </i>constitutes a full-fledged tort, regarding which the victim is viewed as the <i>muchzak</i> (the side to the dispute which maintains the status quo). Thus, “non-builder” emerges victorious even if the matter is regarded as subject of debate (a most basic rule of adjudication of monetary disputes is that the <i>muchzak</i> emerges victorious in case of doubt – see Bava Kama 46a).
  “Builder” claimed that one of his windows, as well as other neighbors’ windows, already faced the second neighbor’s window, so his terrace should be no different. The <i>beit din</i> explained that the terrace creates a far worse situation, since one would have to make a special effort to peer through a neighbor’s window into the neighbor’s domicile; from the terrace, on the other hand, it is impossible not to see into the next person’s property, even when one is sitting. Moreover, the terrace would be located in closer proximity than where the window had been located. The <i>beit din</i> cited Shulchan Aruch (C.M. 154:4), which forbids expanding a small opening when it faces a neighbor, as a precedent for forbidding the creation of far more <i>hezeik re’iyah</i>.
  <i>Minhag Hamakom</i>
  Common commercial practice (<i>minhag hamakom</i>) is a major consideration in adjudicating monetary disputes (Shulchan Aruch C.M. 201:2, 215:8 and 331:1). Accordingly, the first neighbor noted that it had become <i>minhag hamakom</i> to forego concern for <i>hezeik re’iyah</i>, as there were already a number of similar balconies built in the locale despite concerns of <i>hezeik re’iyah</i>.
  The <i>beit din</i> rejected this argument, noting that the Rama (C.M. 331:1) requires widespread practice to establish <i>minhag hamakom</i>. The <i>beit din</i> did not regard this arrangement of building porches as sufficiently prevalent to qualify as <i>minhag hamakom.</i> Moreover, it noted (as rabbinic courts frequently do) that <i>Tosafot</i> (Bava Batra 2a s.v. <i>Bigvil</i>) assert that Halachah does not recognize improper practices (<i>minhagim geru’im</i>) as binding, even if they are widespread. The <i>beit din</i> asserted that the practice to build porches that create <i>hezeik re’iyah </i>should be classified as a <i>minhag garu’ah</i>.
  The <i>beit din</i> did not regard common building practice as establishing a legitimate <i>minhag</i> to disregard <i>hezeik re’iyah</i>. It argued that buyers are not offered a choice and must accept the builders’ plans as they are; therefore, the plans do not create a proper <u>minhag</u>. The <i>beit din</i> felt that neighbors, when planning additions to their homes, must act differently than builders, since they exercise control over those additions.
  Shutters
  The <i>beit din</i> acknowledged a contemporary work known as <i>Minchat Tzvi</i> which states that <i>hezeik re’iyah </i>is no longer a relevant concern, since we commonly have shutters and blinds to cover our windows. The <i>beit din</i> rejected this opinion, since people wish to open their shutters and blinds during the day. They are not required, according the <i>beit din</i>, to live without sunlight in order to avoid the <i>hezeik re’iyah </i>of their neighbors. Rav Perl notes that even if the <i>beit din</i>’s dispute with the <i>Minchat Tzvi</i> were to remain unresolved, the ruling would favor the victim of <i>hezeik re’iyah</i>, since he is the <i>muchzak</i>, as we noted above.
  Conclusion
  The <i>beit din</i> ruled in favor of “non-builder”, stating that the neighbors must cooperate and share the expenses in the building of a fence between the properties. In addition, the <i>beit din</i> forbade the terrace builder from using his terrace or even building a temporary entrance to it until <i>hezeik re’iyah </i>was eliminated. The remedy, ruled the <i>beit din</i>, was to build a partition two meters high so that ”builder” could not peer at his neighbor from his terrace.
  The <i>beit din</i> did not recognize the decision of the civil building authority to authorize the building, since its decision contradicted a fundamental Torah value. Indeed, the <i>beit din</i> called upon the local authorities to take greater cognizance of <i>hezeik re’iyah</i>, in order to create communities in which we deserve to be commended as we were by Bilam.
  
  Family and Community Matters
  
  Is Lashon Hara Permitted between Close Friends and Spouses?
  
  The Severity of the Sin of <i>Lashon Hara</i>
  The prohibitions to speak <i>lashon hara</i> and <i>rechilut</i> (negative speech and slander) are among the most serious in the Torah. The Rambam (<i>Hilchot Dei’ot</i> 7:1-3) writes:
  Even though one is not flogged for this sin (Rechilut), it is nonetheless a terrible sin and causes the deaths of many in Israel…Our sages have taught that there are three cardinal sins for which one both receives punishment in this world and loses his share in the future world: idolatry, adultery and murder. Lashon Hara corresponds to these in severity. Our sages also taught that one who speaks Lashon Hara denies the most important principle of faith (i.e., belief in Hashem)…Our sages also said that Lashon Hara kills three: the one who speaks it, the one who accepts it and the one about whom it is spoken; it damages the one who accepts it more than the one who spoke it.
  Moreover, the celebrated work of <i>Mussar</i> (ethical literature) <i>Orchot Tzadikim</i> writes (section twenty five):
  Scrupulously avoid speaking Lashon Hara, for one who speaks Lashon Hara degrades himself, as one who denigrates others is himself denigrated. His manner is to criticize others with his own flaws because this is what constantly lurks in his heart.…One who speaks Lashon Hara searches for people’s flaws and is compared to a fly who will always land in the dirtiest of places. If there are boils on a part of a body, a fly will disregard the healthy portions of skin and will rest on the boils. So too regarding one who speaks Lashon Hara – he disregards the good in people and instead focuses on the bad.
  In regard to certain sins, repentance, for the most part, involves behavior modification. For example, if one has become lax in observance of Shabbat or Kashrut, he, for the most part, needs to focus on changing his behaviors, especially when challenging situations arise. However, a habitual violator of Lashon Hara must engage in deep introspection in order to cure himself of this sick activity. He must seriously contemplate his character flaws and poor attitude that lead him to speak Lashon Hara. Once one resolves to have a more positive attitude toward Hashem’s creatures and world, he finds it far easier to refrain from Lashon Hara than does one who merely tries to train himself to restrain himself when he is tempted to speak Lashon Hara. Moreover, the habitual Lashon Hara speaker needs to make peace with his own flaws and be content with his station in life.
  <i>Lashon Hara</i> between Close Friends and Spouses
  A persistent, albeit inaccurate, assumption is that one is permitted to choose one “designated friend” to whom one speaks <i>lashon hara</i>. The <i>Chafetz Chaim</i> (<i>Sefer Chafetz Chaim Hilchot Issurei Lashon Hara</i> 8:10) dispels this notion:
  There is no distinction regarding the prohibition to speak Lashon Hara between those he is not particularly close with and between close relatives, close friends or his spouse….Many make the mistake of speaking Lashon Hara to their wives about what occurred to them in the synagogue or the marketplace. In addition to violating Lashon Hara, he increases conflict between individuals because she will harbor the anger and will enter the conflict with her husband’s adversary or his family. She also might persuade him to continue to the fight [whereas otherwise he might have not done so]. In the end, she will lose respect for him [her husband] due to all the conflict.
  <i>Da’agah B’lev Ish Yashchenah</i>
  Nonetheless, there might be situations in which one may engage in healthy discussions about certain issues without violating the prohibition of <i>lashon hara</i>. Sefer Mishlei (12:25) states, “<i>da’agah b’lev ish yashchenah</i>.” The Gemara (Yoma 75a) offers two interpretations of this verse. One opinion translates it, “One who has anxiety in his heart should strive to eliminate the matter from his mind.” The second opinion explains it as follows: “One who has anxiety in his heart should talk about it to others.” The <i>Chafetz Chaim</i> (ad. loc. 10:14), based on the second opinion, considers the permissibility of speaking evil of others in the limited situation of seeking relief from anxiety.
  Indeed, Rav Hershel Schachter, on this basis, permits one who is suffering from psychological anguish to speak freely to a therapist in order to bring peace to his soul. However, Rav Schachter cautions that the <i>Chafetz Chaim</i> harmonizes the two opinions in the Gemara. The opinion that recommends disregarding the anxiety refers to minor annoyances that it is best for one simply to ignore (e.g., one is bothered that a particular individual did not extend a greeting on Shabbat or another occasion). The opinion that permits <i>lashon hara</i> to eliminate anxiety applies only to discussions of major concerns (e.g. a persistent problem with a parent, teacher, coworker or supervisor who routinely treats one poorly – in such a case, the victim may seek advice as to how to effectively manage and cope with the situation). Rashi (Bava Batra 15b s.v. <i>Minhag Haolam</i>) teaches that we should develop a healthy attitude and raise our tolerance level regarding minor matters. One who is not bothered by minor annoyances lives a far happier life than one who harbors grievances over relatively minor matters.
  <i>Da’agah B’lev Ish Yashchenah</i> – Close Friends
  An example of a therapeutic conversation between close friends (in this case, two female friends) is described in a question posed to a Rav (<i>Techumin</i> 27:177):
  Occasionally I meet with a friend ‘over a cup of coffee,’ and we analyze various interpersonal issues that arise with our respective family members. Solutions emerge from our conversations, and occasionally the conversation itself reduces that which seemed terrible to its appropriate proportions. At the end of the conversation, she always thanks me for assisting her very much by helping to her see matters differently and to let off steam.…I am happy to feel that I have helped, but always, in the back of my mind, there are question marks regarding the laws of Lashon Hara, especially since I know the people involved. What are the appropriate boundaries in such a situation?
  The Rav responded that it is a great mitzvah to provide an open ear to someone in need, but the following four points need to be observed. The intention must be for the mitzvah and not for gossip. The conversation should not deviate into areas which are not necessary and relevant to the issues at hand. Discretion must be paramount, as one cannot tell others that which was told to him. Finally, one should recall that both Halachah and experience teach there are always two sides to a story, so there are other perspectives to the situations described.
  A fifth condition should be added: that one limit the discussion to one close friend whom one can confidently expect to respond satisfactorily and not to unnecessarily repeat the conversations to others. Frank conversations with a trusted and wise confidante are particularly important for those who are dating. In the process of selecting a spouse, undoubtedly the most important decision of one’s life, one often must make challenging choices. One must strike a delicate balance between, on one hand, not being overly selective and, one the other hand, not being sufficiently selective. Such conversations can rescue relationships that should work and also spare individuals from unhealthy situations.
  Conversations between Spouses
  Rav Schachter specifically mentions a spouse as a primary example of <i>da’agah b’lev ish yashchenah.</i> Does a spousal relationship enjoy any unique exemptions from the laws of <i>lashon hara</i>? A responsum from Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 20:52) might shed light on this important question (<i>Techumin</i> 27:178). Rav Waldenberg was asked if a doctor violates the prohibitions of <i>lashon hara</i> and <i>r</i><i>echilut</i> by giving information regarding his patient to his secretary to archive. He justifies this practice, and among his other considerations is the following:
  Since the doctor cannot otherwise properly execute his duties and must employ a secretary in order to archive the results, and this is planned in advance, they (the doctor and secretary) are considered as one continuous organic unit to investigate and develop action plans as is required. It is viewed as if the doctor shares the information with himself.
  One might argue that the same applies to a marriage, since (<i>ibid</i>.):
  Husband and wife constitute an ‘organic unit’ in the deepest sense of the phrase. However, this principle applies exclusively to a husband and wife and cannot be expanded to the connection between parents and children.
  This assertion does not necessarily contradict the <i>Chafetz Chaim</i>’s assertion that there is no special spousal exemption from <i>lashon hara</i>. A spouse does not need to relate to his/her partner every perceived slight to his/her honor that occurred throughout the day. One should discipline oneself to ignore such minor incidents. The proposed extension of Rav Waldenberg’s ruling may be followed only in regard to conversations that are truly necessary for a couple to function as “an organic unit,” such as deciding to which schools to send their children or strategizing as to how to best meet the various challenges faced by their family.
  Conclusion
  Those who observe the Halachot of <i>lashon hara</i> live far happier lives. Indeed, we recite as part of the special Shabbat liturgy, “Who is the one who wants life, who loves days to see good? Guard your tongue from evil and your lips from uttering deceit” (<i>Tehillim</i> 34:13-14). There are specific situations in which it is permitted and is necessary for healthy living to articulate negative perceptions of others. However, these exceptions should not be abused and should not detract from our striving to create a holy and happy life, in which we think and speak positively of others whenever possible155<i class="footnote">Alan (Avi) Blumenfeld esq. adds that the Gemara’s statement (Chagigah 5b) that Hashem holds us accountable even for casual conversation between husband and wife should caution us from extending the exceptions beyond their necessary limits. </i>.
  
  A Kohen's Marrying the Daughter of a Jewish Mother and a Non Jewish Father
  
  Introduction
  The special restrictions the Torah imposes on a Kohen are most certainly challenging, especially those regarding which women he may marry, for those who do not adequately grasp the special nature of the unique holiness of Kohanim. These restrictions are particularly challenging for those rabbis who serve non-observant congregants. These rabbis find it challenging simply to ensure that congregants choose Jews as life partners. To further restrict a congregant’s choice due to his being a Kohen is not an easy demand to make.
  The difficulty is further compounded in Medinat Yisrael, where the State of Israel Orthodox Rabbinate (Baruch Hashem) has exclusive jurisdiction over personal status matters such as marriage and divorce. Imposing restrictions on Kohanim who are not observant and whose families have not been observant for two or three generations poses an enormous challenge to Israeli rabbanim. There is great pressure to find room for leniency, and some rabbanim indeed try to find such grounds. Others apply Halachah without special consideration of the difficult circumstances.
  In this essay, we shall present an example of this phenomenon by exploring the debate as to whether a Kohen may marry the daughter of a Jewish woman and a non-Jewish man. We shall deal with a specific instance in which the district <i>beit din</i> of Rechovot ruled strictly regarding this question, but the State of Israel Supreme Rabbinic Court of Appeals overturned this decision and ruled leniently due to a special circumstance. Rav J. David Bleich voices criticism of the Appeals <i>beit din</i>’s decision in an essay published in the summer 2007 issue of <i>Tradition</i>. We shall present this issue somewhat differently than Rav Bleich and will seek to justify the actions of the Appeals <i>beit din</i>.
  Gemara
  The Gemara (Yevamot 45a) presents two approaches regarding the status of a child born to a Jewish mother and a non-Jewish father. Some believe that the child is Jewish but is a <i>mamzeir </i>(illegitimate child) due to the fact that the child is produced by an illicit relationship. Others maintain that the child is Jewish (see Pitchei Teshuvah E.H. 4:1) and legitimate.
  Nevertheless, even the latter opinion believes that a daughter of such a union is disqualified from marrying a Kohen. They reason that if a daughter of a Kohen Gadol and a widow is disqualified from marrying a Kohen, <i>kal vachomer</i> (how much more so) a daughter of a Jewish woman and a non-Jewish man should be ineligible to marry a Kohen. The <i>kal vachomer</i> stems from the fact that the prohibition of consorting with a non-Jew applies to all Jews, whereas the prohibition to marry a widow applies only to the Kohen Gadol. The Gemara presents no dissenting opinion regarding the daughter’s permissibility to marry a Kohen.
  The Gemara (Yevamot 45b) concludes that established Halachah regards the child of a non-Jewish man and a Jewish woman as legitimate. No mention is made, though, of the daughter’s possible ineligibility to marry a Kohen.
  <i>Rishonim </i>and Shulchan Aruch
  The <i>Rishonim</i> debate how to interpret the silence of the conclusion of the Gemara regarding the daughter’s disqualification to marry a Kohen. One approach believes that the Gemara, in its conclusion, rejects the clause disqualifying the daughter from marrying a Kohen, while a second approach argues that the conclusion found it unnecessary to address this issue, since it was not a matter of dispute in the earlier section of the Gemara.
  The <i>Beit Shemuel</i> (4:2) summarizes the opinions as follows: the Rambam (<i>Hilchot Issurei Biah</i> 15:3) permits the daughter to marry a Kohen156<i class="footnote">It is unclear whether the Rambam permits the daughter to marry only a Yisrael or a Kohen as well. Although the Beit Shmuel interprets the Rambam's words in the latter way, the <i>Mishneh LaMelech</i> (<i>Hilchot Issurei Biah</i> 13:8 and 15:3) believes that the Rambam forbids the daughter to marry a Kohen.</i>, the Rosh (Yevamot 4:30) forbids her to marry a Kohen, and the <i>Rif</i> (Yevamot 15a) is uncertain about this matter. The Ramban (Yevamot 45a) is similarly uncertain but adds that if a Kohen marries such a woman, we do not require that they divorce. The Ramban then appends that the son of such a union is a “<i>safeik chalal</i>,” one whose status as a Kohen is in doubt. For a thorough review and analysis of the opinions of the <i>Rishonim</i> on this issue, see Rav Yechiel Yaakov Weinberg's <i>Teshuvot Seridei Eish</i> (3:8 in the original edition ; 1:71 in the newer edition) and Rav Mordechai Yaakov Breisch's <i>Teshuvot Chelkat Yaakov</i> (3:22 in the original edition; E.H. 32 in the newer edition).
  The Shulchan Aruch (E.H. 4:5 and 7:17) rules that the daughter may not marry a Kohen, in accordance with the view of the Rosh. However, the two premier commentaries to the Even HaEzer section of the Shulchan Aruch, the Beit Shmuel (4:2 and 7:39) and the Chelkat Mechokeik (7:26), rule in accordance with the Ramban that if the couple is already married, we do not require that they divorce.
  Rav Hershel Schachter (in a shiur delivered at a convention of the Rabbinical Council of America) related that a certain rabbi once was invited to a marriage of a Kohen to a woman whose mother was Jewish and whose father was non-Jewish. The rabbi suggested that he could attend the meal, since by that time, the couple would already be married, and we do not order them to divorce (as per the Beit Shmuel and Chelkat Mechokeik's view). Rav Schachter, though, cites that Rav Yosef Dov Soloveitchik forbade the rabbi to attend even the meal portion of the event, since by doing so, he would lend legitimacy to a marriage that should not have occurred.
  <i>Acharonim</i>
  The <i>Acharonim</i> debate whether the strict opinions in the <i>machloket</i> cited above believe that it is a biblical prohibition or a rabbinic prohibition for a Kohen to marry such a woman. The <i>Mishneh LaMelech</i> (<i>Hilchot Issurei Biah</i> 17:7) and <i>Shaar HaMelech</i> (<i>Hilchot Issurei Biah</i> 15:3) believe that it is a biblical prohibition. On the other hand, the Chelkat Mechokeik (ad. loc.), Rav Akiva Eiger (<i>Teshuvot Rav Akiva Eiger</i> no. 91), the <i>Maharshal</i> (<i>Teshuvot Maharshal</i> n. 17), the <i>Beit Meir</i> (4:5) and the <i>Rama MiPano</i> (<i>Teshuvot Rama MiPano</i> no. 124) rule that the prohibition is rabbinic in nature. Among twentieth-century authorities, Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> E.H. 1:5) rules that it is a biblical prohibition, while Rav Weinberg (ad. loc.), Rav Breisch (ad. loc.), Rav Ovadia Yosef (<i>Teshuvot Yabia Omer</i> 7 E.H. 9) and Rav Shalom Mesass (<i>Teshuvot Shemesh UMagein</i> 3 E.H. 58; Rav Mesass was the highly respected Sephardic chief rabbi of Jerusalem) rule that it is a rabbinic prohibition.
  This debate carries serious ramifications, as it impacts whether one should be lenient or strict regarding the implementation of this Halachah. The opinion that it is only a rabbinic prohibition fits well with the fact that we do not compel the couple to separate if already married. Since it is only a rabbinic prohibition, we do not impose the hardship of separating a couple that is already married. The <i>Shaar HaMelech</i>, though, explains that the rabbanim do not compel a divorce, since by doing so, they might render the <i>get </i>invalid, as there are opinions that permit the couple to be married. (Compelling a man to give a <i>get</i> when he is not obligated to do so invalidates the <i>get</i>, as we explain in <i>Gray Matter</i> 1:3-7.) According to the <i>Shaar HaMelech</i>, therefore, the couple should actually divorce; he believes that the Ramban means merely that <i>beit din</i> is not authorized to compel a <i>get</i>.
  Civil Marriage
  One ramification of this dispute is the debate that rages between Rav Moshe Feinstein and Rav Mesass as to whether a rabbi may officiate at a wedding of a Kohen to a daughter of a Jewish woman and a non-Jewish man if the couple already had been married civilly and had been living together for an extended period of time. Rav Moshe (ad loc.) forbids a rabbi to conduct such a ceremony, whereas Rav Mesass permits it.
  This question depends on what circumstances allow the couple to remain together based on the Ramban's ruling. Rav Moshe's approach is based on the fact that the overwhelming consensus of rabbinic opinions regards a couple that is married in a civil ceremony as unmarried according to Halachah (as we discuss in <i>Gray Matter</i> 1:63-68). Since the couple halachically is not married, Rav Moshe forbids a rabbi to conduct a ceremony that will facilitate a sinful marriage.
  Rav Mesass, on the other hand, believes that since only a rabbinic prohibition is involved, Halachah does not require the husband and wife to separate, since it is difficult for them to do so. He understands the Ramban's ruling as permitting the couple to remain together if it is difficult to separate. Rav Mesass goes as far as to permit a rabbi to officiate at the wedding if the couple is already living together in sin, even if they have not married civilly.
  The Sephardic chief rabbi of Israel, Rav Shlomo Amar, rules (<i>Teshuvot Shema Shlomo</i> 5 E.H. 8) in accordance with Rav Mesass in a case of a Kohen whose non-observant parents has immigrated to Israel. In such a case, there is an additional lenient factor. In a promiscuous era, he reasons, there is concern that the Kohen's mother engaged in relations with a non-Jew prior to the child's conception, disqualifying her from marrying a Kohen and rendering the children of such an illicit marriage <i>chalalim</i> (non-Kohanim, lit. profane). In such a case, there exists a <i>sefeik sefeika</i> (double doubt): perhaps a daughter of the union of a non-Jewish man and a Jewish woman is permitted to marry a Kohen, and even if not, perhaps the man is not actually a Kohen (due to his mother's illicit behavior). One may rely on such a <i>sefeik sefeika</i> especially since we are dealing with a rabbinic prohibition, as Rav Ovadia Yosef rules (<i>Teshuvot Yabia Omer</i> ad. loc.).
  Rav Amar's ruling has far-reaching implications, as it implies that Kohanim born to non-observant parents who lived outside of Israel might be regarded as <i>safeik chalalim</i>. One should speak to a Rav for guidance regarding this issue.
  The Rechovot <i>Beit Din</i> vs. the Appeals <i>Beit Din</i>
  In 2006, a Kohen from a non-observant family wished to marry a woman whose mother was Jewish but whose father was not Jewish. The couple had been living together (in sin) for approximately one and a half years. The district <i>beit din</i> of Rechovot denied the couple a marriage license, in accordance with the ruling of Rav Moshe Feinstein. The State of Israel Supreme Rabbinic Court of Appeals overturned the ruling and permitted the couple to marry, in accordance with the rulings of Rav Mesass and Rav Amar.
  Rav J. David Bleich concludes (<i>Tradition</i> Summer 2007) that the ruling of the Court of Appeals “strikes this writer as an abuse of appellate power,” since it ruled simply that Rav Mesass and Rav Amar's rulings should be followed instead of Rav Moshe's. He writes that Halachah “bars exercise of purely subjective discretion in choosing one set of precedents over another” as considerations for a higher authority to reverse a decision of a lower authority. He also argues that non-Jewish courts of appeal, “from which the Israeli system of rabbinic appellate review was adopted,” would not reverse a decision simply because a lower court followed one viable opinion instead of another.
  We may defend the ruling of the Court of Appeals on four counts. First, one of Rav Ovadia Yosef's reasons for permitting the Rabbinic Court of Appeals to function (<i>Teshuvot Yabia Omer</i> 2 C.M. 2) is that since the Israeli government established the system of appeals, the lower <i>batei din</i> issue their rulings on condition that they are not voided by the Rabbinic Court of Appeals. This grants the Court of Appeals very wide latitude in reversing a lower <i>beit din</i> 's decision (wider than what is permitted in a civil court of appeals).
  Second, Rav Moshe's ruling does not consider (as noted by Rav Ovadia Yosef) what Rav Yaakov Breisch classifies as the majority opinion of classic authorities that this prohibition is only rabbinic in nature. We should note that Rav Moshe might acknowledge that the majority rules that it is a rabbinic prohibition, but nevertheless he may rule in accordance with the minority opinion, since he finds it compelling.
  Third, a question of public policy may have motivated the Court of Appeals. As we discussed earlier in this essay, the State of Israel rabbinic courts must serve as much of the Israeli non-observant population as possible. The Court of Appeals might have believed that since there is a viable lenient opinion permitting a rabbi to conduct a wedding ceremony for this couple, this opinion should be relied on in the current challenging situation faced by the Israeli rabbinate. The Court of Appeals may have been concerned that strict rulings, such as that of the lower <i>beit din</i>, could cause public pressure to mount for the Israeli government to rescind the State of Israel Rabbinic Court's compulsory authority.
  Finally, Avi Levinson adds that if the couple was Sephardic, there is no compelling reason for them to abandon the rulings of the leading contemporary Sephardic rabbis in favor of that of Rav Moshe.
  Conclusion
  Halachah accepts that once such a couple is married, we do not require that they separate. It is important to note that Halachah has a concept of <i>she'at hadechak kebedieved dami </i>– in case of pressing need, one may permit initially that which ordinarily would be permitted only post facto. The Court of Appeals may have felt that the circumstances in the State of Israel constituted a <i>she'at hadechak</i>, allowing the court to rely on lenient approaches upon which, under normal circumstances, it would not relied.
  Postscript
  The State of Israel Supreme Rabbinic Court of Appeals apparently was struggling to find a way to continue serving the Israeli non-observant community. Observant Kohanim, though, are strongly advised not to enter relationships that hinge upon obtaining an exceptionally lenient approach from a rabbinic authority. If there are serious Halachic objections to a Kohen's marrying a certain woman, perhaps Hashem does not want that couple to be married.
  It should also be noted that Rav Yona Reiss stated that he believes that rabbanim in America would follow the ruling of Rav Moshe, since Rav Moshe's rulings carry great weight in this country, especially those regarding matters of personal status. Sephardic rabbis in America, though, might follow the approach of Rav Mesass and Rav Amar.
  
  Rav Osher Weiss's Endorsement of the RCA BDA Prenuptial Agreement
  
  Since its introduction in 1992, the Rabbinical Council of America (RCA)/Beth Din of America (BDA) prenuptial agreement has become an increasingly standard aspect of marriage preparation within many segments of the Orthodox community. When executed and stored properly, the prenuptial agreement has proven to be extraordinarily impressive in its ability to prevent situations of Igun (inability for someone to remarry due to the recalcitrance of his or her spouse to participate in a <i>get</i> ceremony). In December 1999, eleven Rashei Yeshivah of Yeshiva University signed a letter distributed to all members of the Rabbinical Council of America "strongly urg[ing] all officiating rabbis to counsel and encourage marrying couples to sign such an agreement." The Rabbinical Council of America in 2006 even issued a resolution declaring that rabbis should not officiate a wedding if a proper prenuptial agreement has not been executed. As a practicing <i>Mesader Gittin</i> (<i>G</i><i>et</i> administrator) and <i>Mesader Kiddushin</i> (wedding officiant) for seventeen years, I most wholeheartedly support this resolution.
  The prenuptial agreement has been endorsed since its inception by a number of leading <i>Poskim </i>including Rav Zalman Nechemia Goldberg, Rav Yitzchak Liebes, Rav Hershel Schachter, Rav Gedalia Dov Schwartz, Rav Elazar Meyer Teitz, Rav Mordechai Willig, Rav Ovadia Yosef and Rav Chaim Zimbalist. Recently, Rav Osher Weiss has added his name to this list in a response to Rav Tzvi Gartner and Rav Mordechai Willig. Rav Weiss’s endorsement of the halachic validity of the prenuptial agreement is a highly significant event, not only because he is one of the world’s leading halachic authorities but also because his rulings are respected throughout the spectrum of Orthodoxy. His response is worth reviewing carefully for his explanation of how the prenuptial alleviates concern for <i>igun</i> while not creating illicit coercion upon a spouse to give or receive a <i>get</i>.
  Rejection of Earlier Prenuptial Agreements<i> </i>
  In 1984, some rabbanim circulated a prenuptial agreement in which the husband agreed to pay a penalty of two hundred and fifty dollars each day he continued to rebuff <i>beit din</i>’s recommendation to give a <i>get</i>. Supporters of this agreement cited as a precedent the centuries old practice of engagement contracts (<i>tenaim</i>), in which both sides agree to indemnify the other in case they call off the engagement (Shulchan Aruch E.H. 50:6).
  These supporters bolstered this precedent by invoking <i>Yeshuot Yaakov</i>’s defense (cited in Pitchei Teshuvah E.H. 50:8) of the practice of <i>tenaim</i>. He raises the problem that <i>tenaim</i> coerce husbands to marry (Halachah requires the consent of both the bride and groom, Shulchan Aruch E.H. 42:1). To reinforce this challenge, he cites the Rama (E.H. 134:4) who quotes the Rashba’s (<i>Teshuvot</i> 4:40) invalidation of a <i>get</i> in which the husband signed a separation agreement in which he consented to penalties in case he did not hand his wife a <i>get</i>. Although the Rama also cites the <i>Maharik </i>who rules that the husband is giving the <i>get</i> of his own free will, because he voluntarily agreed to pay this monetary penalty, he concludes with a normative compromise approach that initially (<i>l’chatchilah</i>), the penalty should be eliminated before the husband gives the <i>get</i>. However, if the husband already gave a <i>get</i> to his wife out of fear of monetary penalty (<i>b’diavad</i>), the <i>get</i> is considered acceptable.
  Among the <i>Yeshuot Yaakov</i>’s justifications of <i>tenaim</i> is that the Rama’s concern for the opinion of the Rashba is mere stringency. Thus, advocates of the 1984 prenuptial argued that we may overlook the Rama’s recommendation to accommodate the strict opinion in order to counteract the problem of <i>igun.</i>
  Mainstream halachic opinion at the time, as does Rav Weiss in his recent responsum, rejected this approach due to the controversy surrounding an agreement that includes a self-imposed monetary penalty. In fact, I saw Rav Zalman Nechemia Goldberg (in 1993, as a member of the Jerusalem Rabbinate District Court) refuse to perform a <i>get</i> for a couple with a separation agreement that penalized the husband for withholding a <i>get</i>.
  Rav Weiss and the other rabbanim who invlaidate the 1984 prenuptial agreement argue that although Taz (E.H. 134:6), <i>Gra</i> (E.H. 134:14), and <i>Chazon Ish</i> (E.H. 99:5), endorse the Rama's decision, Pitchei Teshuvah (E.H. 134:10) and <i>Aruch Hashulchan</i> (E.H. 134:26-29) cite a critique of this ruling from <i>Teshuvot Mishkenot Yaakov</i> (38) who invalidates a <i>get</i> written in such circumstances even <i>b’diavad</i>. Furthermore, one cannot compare the level of stringency required at a <i>get</i> ceremony to halachic standards expected at a wedding ceremony. For example, the Rama (E.H. 154: <i>Seder HaGet</i> no. 2) writes that even third cousins should not serve jointly as witnesses at a <i>get</i> ceremony and that witnesses should repent prior to the giving of the <i>get</i> in case they became disqualified to serve as witnesses due to sin. The Rama does not record any such stringency regarding marriage. Thus, we cannot extrapolate from the leniency adopted in the context of <i>tenaim</i> to a divorce agreement, since we treat divorce far more stictly. The strictness regarding a <i>get</i> stems from the horrific consequences of an invalid <i>get</i>, including the capital crime of adultery and the eternal consequence of <i>mamzeirut</i>.
  Distinguishing between the<i> </i>Rashba’s<i> </i>Case and the RCA/BDA Prenuptial Agreement
  The 1992 RCA/BDA prenuptial agreement adopts a far more appropriate approach than the 1984 document. The husband agrees to pay $150 per day to support his wife in case they do not maintain domestic residence. This obligation remains in effect for the duration of the halachic marriage. Additionally, the husband waives his rights to the <i>ma’asei yadayim</i> (earnings) of his wife in this scenario. The document carefully avoids linking the husband’s support obligation to his giving a <i>get</i> to avoid the payment’s being construed as a penalty for not giving a <i>get</i>.
  Rav Weiss notes that the RCA/BDA agreement differs from the situation that the Rashba and Rama address in two ways. First, the support obligation is not a penalty but a reasonable sum necessary to support the wife in an average manner. Moreover, there is no direct linkage between the support obligation and a <i>get</i>, as the husband’s financial obligations are a result of the marriage and are not a punishment for withholding a <i>Get</i> (linkage is a critical issue, as explained by Pitchei Teshuvah E.H. 134:10 citing <i>Torat Gittin</i>, <i>Aruch Hashulchan</i> E.H. 134:25, <i>Teshuvot Igrot Moshe</i> 1:137 and Rav Zalman Nechemia Goldberg’s explanation, as told to me, of the concluding paragraph of <i>Teshuvot Igrot Moshe</i> E.H. 4:106).
  Indeed, this agreement emulates the divorce agreement formulated by the famed Rav Yaakov of Lissa to provide financial motivation for giving a <i>get </i>without constituting coercion (<i>Torat Gittin</i> 134:4 s.v. <i>Kenasot</i>; cited in Pitchei Teshuvah 134:9). The husband waives his halachic rights to his wife’s earnings (<i>ma’asei yadayim</i>) while maintaining his obligation to support her. The man is thus motivated to give a <i>get</i> in order to release himself from his financial obligation to his estranged wife. This is not coercion because the husband’s financial obligations are a result of the marriage and are not a punishment for withholding a <i>get</i>. Therefore, he gives a <i>get</i> due to dissatisfaction with his marriage, not because of outside coercion. Concerns of invalidating a <i>get</i> arise only when a financial penalty is linked directly to the <i>get</i>.
  The Rama’s Fundamental Ruling
  Rav Weiss notes that the Rama fundamentally rules in accordance with the <i>Maharik </i>and not the Rashba, since he concludes “is good <i>lechatchilah </i>to accommodate [the Rashba’s opinion],” meaning that it is preferable to satisfy the Rashba’s opinion but fundamentally the Halachah follows the <i>Maharik</i>’s opinion (Rav Hershel Schachter is fond of quoting the Rama’s <i>Torat Chatat</i>, which explains that whenever he rules leniently in case of great financial loss or <i>b’diavad</i>, it means that fundamentally he rules in accordance with the lenient opinion except that absent such circumstances one should accommodate the stricter opinion). Although it is improper, as we noted, to create a prenuptial agreement entirely based on the <i>Maharik</i>’s opinion, nonetheless, since the Rama essentially follows the <i>Maharik</i>’s opinion, there is a limit as to what extent we must be concerned for the opinion of the Rashba. Thus, since the 1992 document is entirely different from the document with which Rashba was concerned, one need not worry that it does not satisfy the Rashba’s concern.
  I witnessed the Jerusalem <i>beit din</i>, consisting of Rav Goldberg, Rav Masood Elchadad and Rav Shlomo Fisher, adopt a similar approach in the situation described above in which the husband signed an agreement providing for penalties in case he did not give his wife a <i>get</i>. The agreement was made in Israeli civil court, and Israeli civil law did not allow the <i>beit din</i> to nullify the agreement. Rav Goldberg proposed solving the problem by neutralizing the penalty and having the wife sign an agreement that she would return any money the husband would pay as a result of the penalty. When Rav Elchadad expressed reservations about this approach, Rav Fisher responded that there is a limit as to the extent one must be concerned for the Rashba’s strict ruling, since the <i>Chazon Ish</i> endorses the Rama’s ruling that fundamentally the Halachah follows the <i>Maharik</i>’s opinion.
  Shifting the Burden of Proof
  Rav Weiss notes that the RCA/BDA agreement entitles the wife to receive support payments even if she has not proven in <i>beit din</i> that she is entitled to such support. Normally, though, the burden of proof falls upon one who seeks compensation (Bava Kama 46a), and thus the wife should be required to prove in <i>beit din</i> that she is entitled to such support before the husband is required to provide it.
  Rav Weiss points out, however, that the document (paragraph seven) states, “However, this support obligation shall terminate if Wife-to-Be refuses to appear upon due notice before the Beth Din of America or in the event that Wife-to-Be fails to abide by the decision or recommendation of the Beth Din of America.” Thus, if the <i>beit din</i> finds that the wife is not entitled to such support<i>,</i> the obligation is canceled. The document does not create an injustice, Rav Weiss explains. Rather, it simply shifts the burden of proof from the wife to the husband to show that she is not entitled to such support. This shift is justified, explains Rav Weiss, since a man is usually more conversant and comfortable in court proceedings.
  The Proof of Success
  Rav Weiss concludes that this agreement is of “great importance” since he knows of “a number of cases in which had the couple not signed such an agreement, the divorce process would have dragged on interminably with endless, baseless hatred and suffering, but due to this document they divorced efficiently in a mutually satisfactory manner with respect for one another.”
  Rav Soloveitchik notes that <i>Chazal</i> decided to establish Chanukah as a holiday only a year after the Chashmonaim’s victory (Shabbat 21b) and not immediately upon the military victory. Rav Soloveitchik explains that they waited to see if the victory endured before they established a holiday. Once the success of the Chasmonaim was well established, <i>Chazal</i> established the holiday.
  The success of the prenuptial agreement is now well-established. The incidence of <i>igun </i>is dramatically lower in those communities that utilize the prenuptial. These communities have restored the situation of prior generations when incidence was rare. A review of the classic responsa literature reveals that there were few incidents of a vindictive spouse spitefully withholding a <i>get</i> before the twentieth century. In times when the authority of <i>beit din</i> was respected and enforced (when Jews enjoyed judicial autonomy), situations of <i>igun</i> were rare. Currently, in communities in which <i>beit din</i> is empowered by a binding arbitration agreement with financial inducements that can be enforced in civil court, <i>beit din</i>’s authority is once again enforced by the civil authority and incidence of <i>igun</i> is rare.
  Conclusion: The Evidence of Failure
  I would add the following to Rav Weiss’s conclusion. I asked a number of individuals who have endured great hardship and long waits to receive a <i>get</i> if they had signed the RCA/BDA prenuptial. Their answer was that they had wanted to do so but their spouses had refused, claiming that they could be trusted without the need to sign a contract. Individuals engaged to be married and their families should consider the following: would they enter into a business relationship with someone who refused to sign a contract claiming that they could be trusted without the backing of a legally enforceable document? For more information on the RCA/BDA prenuptial see <i>Gray Matter</i> 1:8-16, www.rabbis.org (the website of the Rabbinical Council of America) and www.bethdin.org (the website of the Beth Din of America).
  
  Pesukim on Wedding Invitations
  
  Rav Moshe Feinstein’s Strict Approach
  Those who received an invitation from Rav Moshe Feinstein to his children’s weddings may have noticed that he did not mention any <i>pesukim</i>, such as “<i>Kol Sasson V’kol Simchah</i>,” on the invitation, as he records in <i>Teshuvot Igrot Moshe</i> (Y.D. 2:135). The basis of this ruling is the Gemara (Rosh Hashanah 18b), which records the following passage from <i>Megillat Taanit</i> (the list of celebrations of the <i>Bayit Sheini</i>, Second Temple, period):
  On the third of Tishrei, [there is reason to celebrate] since the rabbis succeeded in convincing everyone to refrain from mentioning <i>Hashem</i>’s name in secular documents. The Greek government had decreed that Jews were forbidden to mention <i>Hashem</i>’s name, and when the <i>Chashmonaim</i> defeated them, they decreed to mention <i>Hashem</i>’s name even in secular documents. This is how they dated documents: ‘In such and such year to Yochanan Kohen Gadol to <i>Keil Elyon</i>.’ When the rabbis heard of this practice, they argued, ‘The next day (in the case of a loan), [the borrower] will pay his obligation, and the document [in which <i>Hashem</i>’s name appears] will be thrown into the garbage (since the lender no longer requires it as proof that the loan took place)!’
  Rashi (ad. loc. s.v. <i>B’telata L’tishrei)</i> comments that the rabbis declared the day a holiday because they thought it a miracle that the people heeded their ruling, despite the fact that it overturned accepted practice, which we may add was intended to honor Hashem.
  Rav Moshe similarly is concerned that wedding invitations will eventually be discarded and that the <i>pesukim</i> cited will be degraded. Rav Feinstein comments that this is not merely a personal stringency, but “it is also proper for everyone to practice.” Rav Hershel Schachter fully subscribes to Rav Moshe’s view. Similarly, I received an invitation to a wedding of one of Rav Aharon Lichtenstein’s sons, and it did not contain any <i>pesukim</i>. We should note that the Rambam (<i>Hilchot Yesodei Hatorah</i> 6:8) clarifies that we are forbidden from disgracing not only <i>pesukim</i> that contain Hashem’s name but all Pesukim and even “their commentaries and explanations.”157<i class="footnote">For this reason, Rav Feinstein emphasizes (in his aforementioned responsum) that even <i>pesukim</i> and <i>brachot</i> without Hashem's name should not be printed on materials that will likely be thrown into the garbage.</i>
  Suggestions to Defend the Common Practice to be Lenient
  Despite these rulings, many observant Jews do include <i>pesukim</i> on wedding invitations. One could suggest that we rely on the fact that these <i>pesukim</i> do not have the status of <i>kitvei kodesh</i> (holy books), since they were merely printed, not handwritten. This is not a compelling defense, as <i>Teshuvot Maharsham</i> (3:357) writes that even though, technically speaking, printed books might not considered to be endowed with <i>kedushah</i>, it nonetheless is degrading to <i>kitvei kodesh</i> to carry printed <i>pesukim </i>into the bathroom (or, by extension, to place them into the garbage).
  I suggested to Rav Hershel Schachter that perhaps one may defend this practice based on the ruling of Rav Yitzchak Elchanan Spektor (<i>Teshuvot Ein Yitzchak</i> O.C. 5:11) and the <i>Netziv</i> (<i>Teshuvot Meishiv Davar</i> 2:80) permitting the disposal of printing galleys, since they were not printed with the intention of endowing them with <i>kedushah</i> as they were meant to be a one-use document. Rav Schachter told me that this is not compelling but did not explain his reasoning. He might question Rav Spektor’s leniency, as does Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 3:1:10). Alternatively, Rav Schachter might note that galleys are clearly not intended to be preserved for the long term. Indeed, the <i>Netziv </i>writes, “They were created with the intention of destroying them.” Wedding invitations, however, are not necessarily meant to be discarded, as some will retain the invitation as a memento. Thus, they may have <i>kedushah </i>even if galleys do not.
  Rav Dov Brisman’s Defense of the General Practice to be Lenient
   Rav Dov Brisman (a prominent Rav and Dayan in Philadelphia) presents quite a compelling defense of this practice in <i>Teshuvot Shalmei Chovah</i> (Y.D. 63). Rav Brisman notes other areas in which we seem not to treat <i>pesukim </i>as <i>Chazal</i> would prefer. The issue he focuses on is the common practice to recite fragments of <i>pesukim</i>, such as “<i>Vayehi erev vayehi voker yom hashishi</i>” (Bereishit 1:31) at the start of Friday night kiddush and “<i>Al kein beirach Hashem et yom hashabbat vayekashsheihu</i>” (Shemot 20:10) at the start of Shabbat morning kiddush, despite the Gemara's apparent injunction against splitting a <i>pasuk</i> which Moshe Rabbeinu did not split in the Torah (<i>Taanit</i> 27b). While many, such as Mishnah Berurah (289:2) and Rav Yosef Dov Soloveitchik (<i>Nefesh HaRav</i> p.159), adopt a strict practice not to recite fragments of <i>pesukim</i>, common practice is to be lenient, as noted by the Mishnah Berurah.
  <i>Teshuvot Maharam Schick</i> (O.C. 1:10) defends the common practice by arguing that the intention of the recitation in these circumstances (kiddush on Friday night and Shabbat morning) is to not to quote <i>pesukim</i> but rather:
  To simply inform and publicize that Hashem blessed the Holy Shabbat and that its holiness is permanent and unbreakable. It is like a pronouncement to motivate the one reciting Kiddush and those who are listening to observe the holiness of Shabbat, which is very holy.
  The basis for the <i>Maharam Schick</i>’s approach is the Shulchan Aruch’s ruling (Y.D. 284:2) regarding the obligation to score the paper on which <i>pesukim</i> are written (<i>sirtut</i>). The Shulchan Aruch, following <i>Tosafot</i> (Gittin 6b s.v. <i>Amar Rav Yitzchak</i>, citing Rabbeinu Tam and Rabeinu Eliyahu), does not require <i>sirtut </i>if the <i>pesukim</i> are quoted simply for <i>tzachut</i> (elegant writing). In such a case, one is not quoting <i>pesukim</i> per se; rather, he is expressing a point using words that appear in the Torah.
  Rav Shlomo Kluger (<i>Haelef Lecha Shlomo</i> O.C. 43) similarly defends the practice to cite fragments of <i>pesukim</i> in our Tefillah and <i>piyyutim</i> (liturgical poetry such as <i>Selichot </i>and <i>Kinnot</i>). He limits the requirement to cite a complete <i>pasuk</i> to those situations in which “it appears that one intends to present a Pasuk of the Tanach. In such a case, one is forbidden to deviate from its arrangement.” He marshals a proof to this assertion from the fact that <i>Chazal</i> routinely quote fragments of <i>pesukim</i> throughout the Gemara as proofs for their assertions.
  Rav Brisman’s Analysis of the Maharam Schick’s Ruling
  Rav Brisman notes that we have a precedent for both writing and pronouncing <i>pasuk </i>fragments. He queries, though, as to the nature of this permission. One possibility is that these <i>pasuk</i> fragments are still defined as <i>pesukim</i> and retain their holiness, but it is nonetheless permitted to write and pronounce these <i>pasuk</i> fragments in certain circumstances. Alternatively, it is sometimes permitted to write and pronounce <i>pasuk</i> fragments because, in those circumstances, the <i>pasuk</i> fragments are not defined as <i>pesukim</i> at all. The difference between the two possibilities is that if the second approach is correct, then it is not forbidden to discard such <i>pasuk </i>fragments, since they do not have the status of <i>pesukim</i>.
  Rav Brisman supports the second approach by citing the Rashba (Gittin 6b s.v. <i>VeAmar Rav Yitzchak</i>) who explains Rabbeinu Tam’s aforementioned ruling as follows: “This (writing a <i>pasuk</i> for the sake of elegance) is not considered to be writing a <i>pasuk</i>; rather, it is ordinary writing using the language of the Bible.” Rav Brisman also notes that Rabbeinu Eliyahu (cited in <i>Tosafot</i> Sotah 17b s.v. <i>Katva</i>) also appears to support the second approach, as he writes, “There is no concern for our writing <i>pesukim</i> in our letters without Sirtut, since our intention is not to write a <i>pasuk</i>; rather, it is to write ordinary speech to send regards in the Hebrew language or to write in an elegant manner.”
  Rav Brisman’s Defense of the Common Practice
  Accordingly, <i>pasuk</i> fragments are permitted in certain circumstances in which they do not have the halachic status of a <i>pasuk</i>. Based on this, Rav Brisman writes:
  In light of the above, there is room to defend the common practice to cite <i>pesukim</i> on wedding invitations. The reason is that only portions of the <i>pesukim</i> are written and it is considered to be ordinary writing using the language of the Bible…The <i>pasuk </i>fragment is cited in the invitation only to announce the event in an elegant manner similar to reciting ‘<i>Al kein beirach Hashem et yom hashabbbat vayekadsheihu</i>’ during Shabbat morning Kiddush.
  Rav Brisman wrote this responsum as a very young man in 1979 and sought approval from a distinguished older rabbi, Rav Meir Blumenfeld, a noted halachic authority who served as a Rav in Newark, New Jersey, during the mid-twentieth century. Rav Blumenfeld endorsed Rav Brisman’s approach, as it appears in the second volume of his work <i>Zichron Meir</i>.
  Conclusion
  The <i>Aruch Hashulchan</i> (O.C. 345:18), in an entirely different context (defending the use of community-wide <i>eiruvin</i>), writes, “There is a Mitzvah and obligation to defend the practices of the Jewish People.” Rav Brisman has succeeded in doing so in regard to the common practice to cite <i>pesukim</i> in wedding invitations. Indeed, even Rav Moshe Feinstein did not outright forbid this practice, as he merely wrote that it is “proper” to refrain from citing <i>pesukim</i> on wedding invitations. Indeed, I have counseled many couples not to cause a fight over this with parents or in-laws, as one may certainly rely on Rav Brisman’s lenient approach in order to preserve <i>sh’lom bayit</i> (familial harmony). Nonetheless, whenever possible, one should avoid citing <i>pesukim</i> on a wedding invitation in accordance with the views of Rav Moshe Feinstein and Rav Hershel Schachter. In addition, when one receives an invitation that includes <i>pesukim</i>, it is preferable to not discard it; rather, one should include it with the holy items that he will bury in a respectful manner (<i>sheimot</i>).
  
  Get in Honolulu
  
  Writing a <i>Get </i>in a Locale for the First Time
  Divorce is always quite a delicate and sensitive matter. Writing and executing a Get (Jewish divorce document) is similarly sensitive and must rigorously conform to the standards set forth in the Shulchan Aruch. <i>Mesadrei Gittin</i> (<i>get </i>administrators), in order to avoid calling into question any aspect of a <i>get</i>, closely adhere to the venerated practices established by the outstanding rabbis of previous generations.
  Accordingly, it is not surprising that Rav Yechezkel Landau (<i>Teshuvot Noda Biy’hudah</i> E.H. 2:105) strongly discourages the writing of <i>gittin</i> in places without an existing tradition about how to write <i>gittin</i>, as earlier generations may not have written <i>gittin</i> there due to halachic concerns. This practice continues until today, as we do not write <i>gittin</i> in places where <i>gittin</i> had not been written previously, unless there is compelling reason to do so. When contemplating the writing of a <i>get </i>in a “new” locale, one must consult rabbis of eminent stature, who will investigate every aspect of the issues involved (<i>Aruch Hashulchan</i> E.H. 128:39).
  In this essay, we shall describe how Rav Mendel Senderovic of Milwaukee, a leading authority in the area of <i>gittin </i>and other personal status matters, arrived at a decision in the year 2002 as to the writing of <i>gittin </i>in Honolulu, Hawaii. He describes (<i>Teshuvot Atzei Besamim</i> no. 47) that all efforts were made to avoid the necessity of writing a<i> get</i> in Honolulu, as no <i>gittin</i> had been written there previously, but to no avail: the only way the wife would be able to procure a <i>get </i>in this very difficult situation was to have the <i>get </i>written in Honolulu. As such, all efforts had to be made to establish a manner in which a <i>get</i> could be written in that locale.
  Transliterating Honolulu
  The first step in this process was to properly transliterate the word “Honolulu” into Hebrew characters. The first syllable is a <i>patach</i> (a short “o”), which, according to Ashkenazic halachic standards, sometimes calls for the writing of the letter <i>aleph</i> and sometimes does not. In this case, since the <i>patach</i> is followed by a <i>shva na</i> (a short “u”), an <i>aleph</i> should be written, as Rav Yechezkel Landau rules (<i>Teshuvot Noda Biy’hudah</i> E.H. 2:116) regarding the writing a <i>get</i> in the Eastern European city of Rad’vil.
  Rav Senderovic chose to omit an <i>aleph </i>to correspond to the “o” after the letter N in Honolulu, since it is pronounced as a <i>shva na</i>, which does not merit the writing of an <i>aleph</i> (<i>Ohalei Sheim</i> 10:9). In conformity with undisputed Get practice, a Vav is written after each Lamed that corresponds to one of the two letters L in “Honolulu.” Accordingly, “Honolulu” is transliterated as <i>heh-aleph-nun-lamed-vav-lamed-vav</i>.
  The Waters of Honolulu
  As is well-known, a locale is identified in a <i>get </i>by the waters upon which it rests (Shulchan Aruch E.H. 128:4). For example, Teaneck, New Jersey, is identified in a <i>get</i> as Teaneck, the city that rests on the Hackensack River and the Overpeck Creek; Haifa is referred to as the city on the coast and on well waters; and Rio De Janeiro is called the city on the coast and on springs. Our practice (cited in Beit Shmuel 128:18 and <i>Teshuvot Noda Biy’hudah </i>E.H. 1:86) is to write a <i>get</i> only in a place where there are two identifying water features, except for exceptional cities where we tolerate writing a <i>get</i> with only one identifying mark, such as Richmond, Virginia, which rests on the James River, and Lima, Peru, which sits on the coast.
  Honolulu cannot be identified as being on the coast since it is located on an island in the middle of the Pacific Ocean and not on the coast of a continent, such as Tel Aviv, Boston and Capetown (South Africa) are. Rav Senderovic instead identified Honolulu as the city that sits in the sea, following the precedent of Venice, Gerba (Tunisia) and Singapore.
  The second identifying mark was wells, since Rav Senderovic was informed that ninety-two percent of Honolulu’s water supply comes from underground wells. The other eight percent of the water supply comes from springs, which Rav Senderovic did not include as an identifying mark, as the springs provide only a very small portion of the water supply and thus do not serve as a meaningful identifying mark. In addition, as Honolulu has the two requisite identifying marks, it was unnecessary to add a third relatively insignificant indicator.
  Rav Senderovic, in this approach, follows the ruling of the <i>Maharam MiBrisk</i> (cited in Pitchei Teshuvah E.H. 128:31) in regard to the omission of springs as an identifying mark in Brisk (Brest-Litovsk), Lithuania. Rav Senderovic advised me to adopt the same approach in regard to writing <i>gittin </i>in White Plains, New York. He felt it was sufficient to identify it as the city on the Bronx River and the Mamaroneck River but not to add “and well waters,” even though a small percentage of the White Plains water supply comes from wells. Rav Elazar Meyer Teitz, chief justice of the <i>Beth Din</i> of Elizabeth, agreed with this approach, and it has been adopted in practice since 1997, when we began to write <i>gittin</i> in White Plains.
  Rav Senderovic concludes that Honolulu should be described in a <i>get </i>as “Honolulu, the city that rests in the sea and on well waters.”
  Dating a <i>Get</i> in Honolulu
  A unique issue that one faces in Honolulu, however, is the question as to the dating of the <i>get</i> document. This problem emerges from the celebrated dispute regarding the location of the halachic date line, an issue that is summarized in an essay written by Torah Academy of Beregen County graduate Willie Roth and is archived at www.koltorah.org. The <i>Chazon Ish</i> (O.C., <i>Kuntress Eighteen Hours</i>) locates the date line as being ninety degrees east of Jerusalem, while Rav Yitzchak Herzog, Rav Yechiel Michel Tukachinsky and other leading Jerusalem rabbis of the 1940’s believe that it is one hundred and eighty degrees from Jerusalem. (See the earlier essay discussing “Air Travel on a Fast Day” for a slightly longer discussion of this issue.)
  Accordingly, if one writes a <i>get</i> on what is accepted in Honolulu as Monday, one is faced with a dilemma, since Honolulu is located one hundred and seventy degrees from Jerusalem, placing it east of the dateline according to the <i>Chazon Ish</i> but west of the date line according to Rav Herzog, Rav Tukachinsky and the Jerusalem rabbis. Thus, according to the <i>Chazon Ish</i> the <i>get </i>should be dated as being written on Monday, while according to Rav Herzog, Rav Tukachinsky and the Jerusalem rabbis, the <i>get</i> should be dated as being written on Tuesday.
  Parenthetically, one who travels to Hawaii on vacation is faced with the very serious question whether to observe Shabbat on what is locally referred to as Friday or Saturday. One should consult his Rav about this issue specifically and about whether it is appropriate in general to visit Hawaii and be caught in this serious Shabbat issue.
  Four Possibilities
  Rav Senderovic explores four possible means for dating a <i>get </i>written in Honolulu. One possibility is to write two <i>gittin</i>, one dated Monday and the other dated Tuesday (in our example). Shulchan Aruch (E.H. 129:18) does indeed record that, in certain situations, some authorities require two <i>gittin </i>due to the inability to resolve certain issues, such as how to properly identify an individual in a <i>get</i>. Rav Senderovic rejects this possibility for a variety of reasons. The Rama (E.H. 129:19) writes that one should write two <i>gittin</i> only in exceptional situations. Moreover, the Taz (E.H. 122:2) writes, “I never saw my forbearers or teachers write two <i>gittin</i>.” Rav David Zvi Hoffman (<i>Teshuvot Melamed Leho’il </i>3:30) discourages the writing of two <i>gittin </i>in part for sociological reasons (it appears absurd to the unlearned Jew). Rav Shlomo Fischer of the Jerusalem <i>beit din</i> told me (in 1993) that in Jerusalem, two <i>gittin</i> are never written for one couple (although Rav Mendel Silber of the Satmar <i>beit din</i> of Brooklyn told me that in his court, writing two or more <i>gittin</i> for a divorcing couple is rather common). Finally, Rav Yechezkel Landau writes (<i>Teshuvot Noda Biy’hudah</i> E.H. 1:90) that two <i>gittin </i>cannot be written when a <i>get</i> is executed by agency, and in Rav Senderovic’s case, the <i>get</i> was to be sent by agent from Honolulu to New York.
  Rav Senderovic, though, considers the possibility of dating the <i>get</i> as being written on Monday, even though a predated <i>get </i>is invalid (Shulchan Aruch E.H. 127:2), since a <i>get</i> executed by agency is delivered in any event on a later date than the day it is written (Shulchan Aruch E.H. 127:5). Rav Senderovic, though, notes that this suggestion is insufficient, since the <i>get</i> would be deliberately predated (according to those who believe that Hawaii is west of the date line), and a deliberately predated <i>get</i> delivered by an agent is acceptable only in a case of great need (Pitchei Teshuvah 127:12). We do not write <i>gittin</i> that are acceptable only in case of great need unless there are no other viable options.
  Rav Senderovic then explores the possibility of dating the <i>get</i> as Tuesday, since a postdated <i>get</i> is acceptable according to <i>Tosafot</i> (Gittin 17a s.v. <i>Reish Lakish</i>) and the Rosh (Gittin 2:5). Indeed, this opinion is presented as the primary opinion in Shulchan Aruch (E.H. 127:9). Moreover, the <i>get </i>might be acceptable even according to the dissenting opinion of the Rambam (<i>Hilchot Geirushin</i> 1:25), since it would not be delivered until after the date written in the <i>get</i> (see Pitchei Teshuvah E.H. 127:14). However, since other opinions (cited ad. loc.) believe the <i>get </i>to be nonetheless invalid according to the Rambam, Rav Senderovic did not adopt this approach.
  Rav Senderovic explores even the possibility of omitting the day of the week and month in the <i>get</i> and mentioning only the week in the month, based on Shulchan Aruch's ruling (E.H. 127:7) that a <i>get</i> written in such a manner is acceptable. This is not a viable option, though, since a <i>get </i>written in this manner is acceptable only <i>b’diavad</i> (after the fact). Thus, a <i>get</i> should not initially be written in this manner.
  Rav Senderovic’s Ruling
  Rav Senderovic concludes that the <i>get </i>should be dated as being written on Monday based a different consideration. He notes that the date in a <i>get</i> is written as such and such date from creation “in the manner in which we count it here” etc. This phrase clarifies that even if the date is inaccurate from an objective perspective, it nevertheless does not invalidate the <i>get</i>, since it is the accepted date in the place of the writing of the <i>get </i>(Pitchei Teshuvah E.H. 127:16). Accordingly, the <i>get</i> dated as Monday is acceptable even according to those who believe that Hawaii is west of the date line, since it is Monday according to the manner in which the days are counted there158<i class="footnote">The practice of the small Orthodox community in Hawaii observes Shabbat in accordance with the opinion of the <i>Chazon Ish</i> and other <i>poskim</i> who consider Hawaii as located east of the date line. </i>. The opinions of the halachic authorities (cited in the appendix to <i>Encylopedia Talmudit</i> vol. 22) who regard the halachic date line to run through the mid-Pacific, west of Hawaii serve as additional support to Rav Senderovic. Their opinion combined with the approach of the <i>Chazon Ish</i> allows one to conclude that the majority of <i>poskim</i> regard Hawaii as lying east of the date line159<i class="footnote">Rav Zvi Pesach Frank (<i>Teshuvot Har Zvi</i> O.C. 1:138) may be added to the list of rabbanim who endorse the practice of the small Orthodox community of Hawaii to observe Shabbat on Saturday and the ruling of Rav Senderovic. </i>.
  Conclusion
  The holiness of the Jewish people is maintained in great part by exercising extraordinary care with the weddings and (heaven forfend) divorces of the members of our community. Thus, halachic authorities seek to achieve a balance between sensitively meeting the needs of people in a difficult time in their lives and scrupulously maintaining the integrity of the halachic process. Rav Senderovic’s treatment of the question of writing a <i>get </i>in Honolulu is a fine example of achieving such a delicate balance and keeping with the precedents and accepted standards respected by our people for countless generations.
  
  Intercity Gittin
  
  Due to the development of technology, halachic questions that were at one time relatively rare have emerged in modern times as commonplace. One such issue is the question of sending a <i>get </i>from one location to another city located at a distance. This occurs when the husband and wife live far apart, something that was relatively rare in premodern times but is quite common today.
  Historical Background
  The <i>Aruch Hashulchan</i> (procedure for sending a <i>get</i> via mail, subsection 1, printed in the section following E.H. 154), writing in the late nineteenth century, records that it became accepted “in the previous generation” to mail <i>gittin</i> using the general postal service from a <i>beit din</i> in one city to a <i>beit din</i> in another city. However, this issue is the subject of intense debate, as the <i>Geonim</i> (cited in Rosh, Gittin 2:27) voiced strong objections to this procedure. Their objection lies in the fact that a <i>nochri</i> is involved in transporting the <i>get</i> from one <i>beit din</i> to another (<i>yad akum Ba’emtza</i>), and a Nochri is invalid to serve as a <i>sh’liach</i> (agent; Bava Metzia 72a).
  Rabbeinu Tam (cited by the Rosh ad. loc.) disagrees and notes that the <i>nochri</i> who brings the <i>get</i> from <i>beit din</i> to <i>beit din</i> does not serve the role a <i>sh’liach</i>. Rather his role is analogous to a conveyor belt between the two rabbinic courts (<i>ma’aseh kof b’alma</i>). The <i>Haghot Oshri</i> (ad. loc.) notes that the <i>Ra’avyah</i> and Rabbeinu Yoel support this ruling of Rabbeinu Tam. Moreover, the Rosh records (in the early fourteenth century) that the accepted practice in France and Germany was to execute <i>gittin</i> in accordance with the view of Rabbeinu Tam. I presume the need to conduct <i>gittin</i> in this manner arose due to the disruptions and dislocations created by the Crusades and the forced conversions to Catholicism that took place as a result.
  We should note that the acceptance of this pratice is hardly surprising, as Rabbeinu Tam exerted a great influence on the practice of <i>gittin</i>. Examples include the practice to repent prior to serving as a witness to a <i>get</i> (see <i>Aruch Hashulchan Seder HaGet</i> subsection eight, printed in the section following E.H. 154) and the insistence that the wife keep her hands steady during the delivery of the <i>get</i> (<i>Tosafot</i> Gittin 78b s.v. <i>Im Yachol</i>). <i>Get</i> administrators even announce at the conclusion of every <i>get </i>that Rabbeinu Tam and his circle of students issued a <i>cheirem</i> (ban) on one who casts frivolous aspersions on the validity of the <i>get</i> (Shulchan Aruch E.H. 154:22).
  Rulings of the Shulchan Aruch and Rama
  Rav Yosef Karo (Shulchan Aruch E.H. 141:35) codifies the ruling of Rabbeinu Tam and does not even cite the dissenting view of the <i>Geonim</i>. The Rama, however, writes, “However, there are those who disagree and assert that one cannot appoint an agent [to receive the Get from the <i>Nochri</i>] in writing; I have also not seen this done in practice.” The <i>B’eir Hagolah</i> (ad. loc. no. 4) explains that the Rama codifies the opinion of the <i>Geonim</i> against the ruling of Rabbeinu Tam.
  It is no less than astonishing, however, that the Rama would rule in favor of the <i>Geonim</i> against three pillars of Ashkenazic halachic decision making, Rabbeinu Tam, Rabbeinu Yoel and the <i>Ra’avyah</i>. It is even more astonishing that the Rama does not uphold the practice of Jewish communities in France and Germany to follow the approach of Rabbeinu Tam. Moreover, the Rama makes no mention of the <i>Geonim</i>’s primary contention of <i>yad akum ba’emtzah</i>.
  This leads a number of <i>Acharonim</i> to interpret the Rama as not rejecting Rabbeinu Tam. The <i>Ma’amar Mordechai</i> (no. 81, cited in Pitchei Teshuvah E.H. 141:35) understands the Rama as objecting to appointing an agent only in writing as opposed to an oral appointment confirmed in writing by a <i>beit din</i>. The <i>Aruch Hashulchan</i> (E.H. 141:61) explains that the Rama objects to an appointment of an agent in writing without a confirmation from <i>beit din</i>.
  Nineteenth-Century Rulings
  Although the Pitchei Teshuvah (ad. loc.) concludes his discussion of this matter in the early nineteenth century by stating that this matter requires resolution by a convention of rabbis, this question was resolved by the end of the nineteenth century in favor of following Rabbeinu Tam. In addition to the <i>Aruch Hashulchan</i>, three other great rabbis of the late nineteenth century, <i>Teshuvot Maharam Schick</i> (no. 136<i>), Teshuvot Sho’eil Umeishiv </i>(3:1:210) and <i>Mahari Aszod</i> (nos. 92 and 129), endorse following Rabbeinu Tam’s approach. Moreover, a major classic seventeenth-century commentary to the Shulchan Aruch, the Chelkat Mechokeik (35:18), endorses the ruling of Rabbeinu Tam and the report that the practice in France and Germany is to follow this ruling.
  The <i>Aruch Hashulchan</i> (E.H. 141:62) ascribes this change in the nineteenth century, to the development of steamships and railroads which facilitated the great migrations of that period:
  In the previous generation, in our many sins, the Jewish People was scattered from one end of the world to another and beyond the great sea [Atlantic Ocean], making it virtually impossible to send an agent to deliver a Get to where the wife is located [he likely refers to the prohibitive cost]. Since the rabbis of the generation saw that the women would remain Agunot [chained to a dead marriage and unable to remarry], they permitted a Get to be delivered [from <i>beit din</i> to <i>beit din</i>] by mail. In our time, this has emerged as the accepted practice in all Jewish communities, and no one objects.
  Contemporary Application
  Contemporary rabbinic courts continue to follow Rabbeinu Tam’s ruling. For example, I who reside in New Jersey, (and function under the auspices of the Beth Din of Elizabeth) have received <i>gittin</i> sent by mail from <i>batei din</i> headed by rabbis of great stature in Israel, London and even as close as Philadelphia, Pennsylvania.
  However, a leading Rav (who is not a <i>get</i> administrator and apparently is not intimately acquainted with the day-to-day operations of a <i>gittin beit din</i>) recently voiced criticism of contemporary <i>batei din</i> for continuing this practice. He noted that it is no longer “virtually impossible to send an agent to deliver a Get to where the wife is located.” He urged <i>get</i> administrators to find individuals who are traveling to the city where the wife resides and appoint them as agents to deliver the <i>get</i> to the wife (in the presence of the local <i>beit din</i>).
  There are at least two reasons why <i>get</i> administrators continue to follow Rabbeinu Tam’s ruling despite the improvement in transportation.
  One reason is that we avoid calling into question the <i>gittin </i>of earlier generations (Gittin 5b<i> </i>s.v. <i>Motzi La’Az Al Gittin HaRishonim</i>,). The situation resembles that of the change from writing <i>gittin</i> on parchment to writing <i>gittin</i> on paper. The Rama (E.H. 124:2) writes that a <i>get</i> should be written on parchment (custom dictates that a <i>get</i> should resemble a Torah scroll to a certain extent, see Rosh Gittin 1:2) but is acceptable if written on paper. The Taz (E.H. 124:7) notes that during the time of riots (he seems to be referring to the Chmielnicki pogroms of 1648-1649), <i>gittin</i> were written on paper, as parchment was unavailable at that time. After the riots subsided, writes the Taz, the <i>gittin</i> continued to be written on paper so as not to call into question the Gittin written during the riots.
  A second reason is that the burden on <i>get</i> administrators has grown enormously. Gittin were relatively rare in earlier times, as evidenced by the shock expressed by <i>Teshuvot Shaarei Dei’ah</i> (2:76; late nineteenth century) and <i>Teshuvot Divrei Malkiel</i> (4:156; early twentieth century) at the need to write many <i>gittin</i> on one day. In contrast, if one visits the Tel Aviv <i>beit din</i>, for example, he will see a staff of <i>get </i>administrators, scribes and witnesses execute dozens of <i>gittin</i> each day. Three or four <i>gittin</i> per week is a common caseload for the leading <i>get</i> administrators in the New York area.
  In addition, large numbers of non-observant Jews who are divorcing are at best marginally interested in obtaining an Orthodox <i>get</i>. Many of these people have already entered into sinful relationships with others before a <i>get</i> has been executed. Thus, there is enormous pressure on <i>batei din</i> to facilitate <i>gittin</i> in the most efficient manner possible. Waiting to find a suitable and reliable agent to deliver a <i>get </i>to a <i>beit din</i> in the place where the wife resides is simply impractical and imprudent. Indeed, Rav Yosef Eliyahu Henkin, a great twentieth-century halachic authority who was the dean of <i>get</i> administrators in the United States in his time, urges (<i>Kitvei Hagria Henkin</i> 2:144-145) that <i>gittin</i> be processed with efficiency and dispatch, as “Gittin in this country are all cases of pressing need”.
  Nonetheless, I have seen <i>get </i>administrators such as Rav Peretz Steinberg of Queens and Rav Elazar Meyer Teitz of Elizabeth serve as agents to deliver <i>gittin</i> when they were in any event traveling to the city where the wife lives. They try to avoid relying on Rabbeinu Tam if it is reasonably practical to do so.
  The Actual Process
  Although there is some debate about this (see <i>Aruch Hashulchan</i> E.H. 141:63-64), the accepted practice, as recorded by <i>Teshuvot Melamed Leho’il</i> 3:42, is to conduct intercity <i>gittin</i> in the manner presented in Pitchei Teshuvah E.H. 141:35. The husband appears before a <i>get </i>administrator and his staff of a scribe and two witnesses and appoints an agent (almost always a member of the <i>get</i> administrator's staff) to deliver a <i>get </i>to his wife. The husband authorizes the agent to appoint a substitute agent in his stead, to appoint the substitute agent not in the latter’s presence and even to send the <i>get</i> to the second agent by mail.
  After the <i>get</i> is written and signed, the first agent appears before a <i>beit din</i> to appoint a person designated by the <i>get</i> administrator in the locale of the wife to serve as his substitute agent. In the context of this appointment, the first agent will perform the required signature confirmation by stating, “This <i>get</i> was written and signed in my presence” (Gittin 1:1). The <i>beit din</i> signs a document corroborating the appointment of the second agent to deliver the <i>get</i> to the wife. The <i>get</i> is then mailed to the second agent, and he delivers the <i>get</i> to the wife in the presence of another <i>beit din</i>. In this manner, an intercity <i>get</i> between almost any two places in the world can be completed from start to finish within a week, something unimaginable in previous generations but often very necessary given contemporary circumstances.
  Conclusion
  Each generation presents its challenges for <i>get</i> administrators, be it the Crusades, the Chmielnicki pogroms, the great migrations of the nineteenth century or the ravages of postmodern permissive society. In each generation, dedicated <i>get</i> administrators are needed to “<i>sh’mor sh’eirit Yisrael</i>,” to do their best to preserve the sanctity and purity of the Jewish People by conducting <i>gittin</i> when necessary at the highest possible standards of Halachah as well as interpersonal courtesy and sensitivity.
  
  The Orthodox Union's Policy Statement on Adolescents Drinking on Purim
  
  Since 2005, the Orthodox Union and its youth organization, The National Council of Synagogue Youth (NCSY) have been asserting that the Halachah regarding drinking on Purim does not apply to adolescents. This policy appears at first to contradict a straightforward Halachah codified in the Shulchan Aruch (Orach Chaim 695:2) that one is required to imbibe alcohol on Purim. Moreover, the Shulchan Aruch does not distinguish between adolescents and other adult Jews. One may question what right the Orthodox Union has to contradict the Shulchan Aruch and issue statements that previous generations did not make.
  Justification #1 – <i>Pikuach Nefesh</i>
  Rav Tzvi Hersh Weinreb, executive vice president emeritus of the Orthodox Union writes:
  The fundamental rationale of our opposition to alcohol consumption by teenagers on Purim is the fact that drinking often leads, especially among youngsters, to serious medical consequences. It is instructive that among the strong supporters of our campaign have been members of Hatzoloh, the rescue and ambulance corps, who report that Purim does not go by without incidences of toxic reactions to alcohol requiring emergency treatment, to driving accidents, and sometimes even to deaths. These considerations of health and <i>pikuach nefesh</i> (the saving of lives) easily transcend whatever mitzvah might be involved in drinking on Purim.
  Indeed, after the Gemara (Megillah 7b) presents the rule that one should drink alcoholic beverages on Purim until he cannot distinguish between "cursed be Haman" and "blessed be Mordechai," it relates an eye-opening incident related to this obligation. <i>Rabbah</i> and Rabi Zeira made a <i>Seudat Purim</i> (Purim feast) together. As a result of their inebriation, Rabbah arose and "slaughtered" Rabi Zeira. Subsequently, <i>Rabbah</i> prayed on behalf of Rabi Zeira and the latter recovered. The next year, <i>Rabbah</i> invited Rabi Zeira for a Seudat Purim; Rabi Zeira declined the offer and said, "Miracles do not occur all the time."
  The Gemara records the incident involving <i>Rabbah</i> and Rabi Zeira to reject or limit the rabbinical decree regarding drinking on Purim. The <i>Baal Hamaor</i> (Megillah 3b in the <i>Rif</i>'s pages) cites and accepts the opinion of Rabbeinu Ephraim that the Gemara presents the incident to rescind this Halachah, and to conclude that it is now improper to drink on Purim. On the other hand, the <i>Rif</i> (<i>ibid</i>.) and the Rosh (Megillah 1:8) cite the obligation to drink on Purim without any reservations whatsoever. Although they reject the approach of Rabbeinu Ephraim, they presumably believe that the Gemara presents the story as a cautionary note. Thus, although the Shulchan Aruch (ad. loc.) rules in accordance with the <i>Rif </i>and Rosh, the <i>Rabbah </i>and Rabi Zeira incident sounds a cautionary note to ensure that observance of this Halachah does not lead to serious problems.
  Thus, even according to the Shulchan Aruch, this mitzvah does not apply in cases of danger to life. Indeed, Rav Mordechai Eliyahu and Rav Avigdor Neventzall (cited in Rav Moshe Harari's <u>Mikra'ei Kodesh</u>, <i>Hilchot Purim</i>, <i>Milu'im</i> to ch. 13, n. 5) forbid Israeli soldiers to get drunk if they have access to firearms. It is obvious that, similarly, one who is driving after the Seudat Purim<i> </i>must refrain from drinking. Furthermore, it is also obvious that it is forbidden to offer alcoholic beverages to someone who plans to drive on Purim.
  Rav Weinreb writes, “My own personal concern for this issue traces back to experiences I witnessed myself in my former community, Baltimore, where the excessive consumption of alcohol on Purim resulted in a fatality in one case and in serious illness in others.” Unfortunately, other rabbanim, including Torah Academy of Bergen County’s Rav Yosef Adler, relate similar stories. Rav Adler speaks of a father who observes the <i>yahrtzeit</i> of his son on Purim, since he died as a result of drunk driving on Purim.
  Studies have shown that the portion of the brain that controls judgment is under developed in teenagers. Thus, they are very often incapable of making decisions regarding alcohol use and management that will help them avoid tragedies. Similarly, they lack the judgment to moderate the imbibing of alcohol as required by Halachah, as the Mishnah Berurah (695:5) and the <i>Aruch Hashulchan </i>(O.C. 695:5) both state that it is proper to drink merely a bit more than usual and then to nap. Rav Weinreb writes that the same applies to adults with alcoholic tendencies. Furthermore the same applies to adults with a family history of alcohol abuse, as an inclination towards alcohol abuse is likely to be hereditary (as stated by Dr. Jeffrey Berman of Teaneck, an expert in recovery from alcohol abuse).
  Justification #2 – <i>Dina d’Malchuta Dina</i>
  Rav Weinreb presents a second argument in favor of forbidding adolescents from drinking on Purim. He states:
  Secondly, and very important, is the fact that it is against the law for an adult to knowingly provide alcohol to individuals who are underage. While there may be exceptions when wine is served for ceremonial purposes, clearly that exception assumes that no more than a symbolic quantity is ingested. Teachers or <i>rebbeim</i> who supply minors with wine or liquor on Purim are in violation of the law of the land.
  One might object to this argument by claiming that <i>dina d’malchuta dina</i>, the obligation to honor the law of the land in which we reside (Shulchan Aruch C.M. 369:6-11), does not apply when it contradicts Halachah. We obviously do not substitute a civil marriage for a <i>chuppah</i> and would not follow a governmental edict to eat non-kosher food. However, the laws that prohibit serving alcoholic beverages to a minor are intended to protect the lives of teenagers and others. An inebriated adolescent is a danger to himself and to others as well. Halachah (Rambam, <i>Hilchot Melachim</i> 9:14) obligates all societies, including non-Jewish communities to establish law and order. Thus, since the government of the United States is under the halchic obligation to protect its citizens, it is obligated to take action to prevent loss of property, life, and limb due to an inebriated adolescent.
  The argument to accept these laws may be compared to the <i>Chatam Sofer</i>’s (C.M. 44) oft-cited assertion that Halachah recognizes rational and reasonable civil laws “when we would have made the same edict, had we been empowered to do so.” <i>Chatam Sofer</i>’s position is echoed by <i>Teshuvot Beit Yitzchak</i> (C.M. 77:3), <i>Teshuvot Minchat Shelomo</i> (1:87), <i>Teshuvot Tzitz Eliezer</i> (12:83), Rav Yosef Shalom Eliashiv (<i>Piskei Din Rabbaniyim</i> 6:382), Rav Zalman Nechemia Goldberg (<i>Chok LeYisrael, Nezikin</i> p. 378) and <i>Teshuvot Sheivet HaLeivi</i> (10:291). If we would have a Sanhedrin (a universally recognized supreme rabbinic court authorized to make new enactments) we would also forbid teenagers from drinking due to the terrible danger involved. Thus, we must respect civil law forbidding serving liquor to those under the age of twenty one.
  Rabbis and <i>rebbeim</i> should be on the forefront of teaching their congregants and students the importance of guarding one’s safety and acting as a responsible citizen. Disregarding <i>dina d’malchuta dina</i> on Purim can lead to severe <i>chillul Hashem</i> throughout the year.
  Justification # Three – The <i>Chafetz Chaim</i>
  Rav Weinreb cites the following comment of the Bei’ur Halachah (695 s.v. <i>Ad</i>): "If one believes that drinking on Purim will interfere with his performing any Mitzvah, such as <i>netilat yadayim</i>,<i> berachot</i>,<i> birkat hamazon,</i> or reciting <i>minchah </i>or<i> ma’ariv</i>, or that it will cause him to behave in a boorish manner, it is preferable that he not drink (or become inebriated), as long as his motives are proper."
  Since experience teaches that adolescents often cannot both drink on Purim and maintain their halachic obligation to protect their safety and health (Shulchan Aruch Y.D. 116 and C.M. 427), they should refrain from indulging in any alcohol on Purim.
  Halachic Awareness of the Problems with Adolescent Judgment
  Halachah is well aware of the problematic nature of adolescent judgment as evidenced in the following rulings. For example, the Rama (Y.D. 1:5) records that there are those who are strict and do not permit authorizing those under the age of eighteen to <i>shecht</i> (ritually slaughter) animals. Only upon reaching the age of eighteen “is (one) an individual of judgment who understands how to exercise caution.” The Shulchan Aruch (E.H. 1:3) records that there is no obligation to marry before the age of eighteen despite the fact that males become obligated in all other mitzvot beginning at age thirteen. Obviously, one is not necessarily ready to assume the responsibility of marriage before eighteen. Thus, consistent with these Halachot, the Orthodox Union quite reasonably instructs adolescents to refrain from alcohol even on Purim and wait to fulfill this mitzvah until they reach the age at which they will be “individuals of judgment who understand how to exercise caution.”
  Why is our Generation Different from Previous Ones?
  One may ask why <i>Chazal</i> or leaders of previous generations did not issue similar instructions. The answer is that teenage drinking on Purim in previous generations did not lead to the problems it does today. Perhaps there was greater parental and communal supervision of adolescents. Perhaps the greater piety of earlier generations (Shabbat 112b) prevented today’s problems. Another possibility is that people matured more quickly in previous times as they were expected to assume greater responsibilities at an earlier age. For example, the Gemara (Ketubot 65b) speaks of children beginning to earn a living at the tender age of six! The biggest difference, however, is the advent of widespread practice of adolescents to drive automobiles. The unfettered access and availability of cars to youngsters and their friends in our time demands that we take extra precautions that were not necessary in prior generations (for this reason the Orthodox Union did not issue a similar statement regarding the four cups of the Seder evening, as the concern for drunk driving is not relevant to Yom Tov (hopefully).
  Conclusion
  The heading to Shulchan Aruch C.M. 427 states our obligation “to remove any <i>michshol</i> [pitfall] that can endanger life.” This chapter of Shulchan Aruch records the obligation of a homeowner to remove any dangers to life from his property. Similarly, the leaders of each generation and community are obligated to assess the circumstances and issue instructions to prevent life-threatening situations from arising. Thus, the Orthodox Union is responsibly upholding its halachic obligation by calling for teens to abstain from alcohol even on Purim.
  
  An Evaluation of Rav Aviner's Provocative Tzedakah Ruling
  
  
  
  Medical Issues
  
  Live Organ Donations
  
  Introduction
  The overwhelming majority of <i>poskim </i>(halachic authorities) oppose transplants of hearts, livers, and lungs from a cadaver, since they do not accept “brain death” as a legitimate definition of death, as I explained in an essay archived at www.koltorah.org. However, Halachah encourages donation of certain organs from live donors, as we shall outline in this essay. Our discussion will based to a great extent on the recently issued report of the Rabbinical Council of America’s Halachah Commission.
  The Obligation to Rescue
  The Torah commands us, “Do not stand aside while your fellow’s blood is shed” (Vayikra 19:16). The Gemara (Sanhedrin 73a) clarifies that this <i>pasuk</i> obligates us to expend all efforts and financial resources to save the life of another human. Rashi (ad. loc. s.v. <i>Ka Mashma Lan</i>) explains the phrase “do not stand” as meaning, “Do not stand by yourself (without taking action); rather, exhaust all possibilities in order that your fellow’s blood not be lost.” The Gemara and Rashi, however, do not state whether the efforts required to save another’s life include an obligation to risk one’s own life.
  Risking One’s Life to Save Another
  The <i>Beit Yosef</i> (C.M. 426 s.v. <i>UMah SheKatav BeSheim HaRambam</i>) cites the Talmud Yerushalmi (Jerusalem Talmud , <i>Terumot</i> 8:4), which requires us to endanger our lives to save another from certain death.160<i class="footnote">The Yerushalmi relates that <i>Reish Lakish</i> once endangered his life to save the life of Rabi Imi. Although the <i>Beit Yosef</i> and most other <i>poskim</i> interpret the Yerushalmi as requiring such behavior, Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 9:45:5) presents two valid approaches to disagree with this conclusion. First, Rav Waldenberg argues, it is possible that while <i>Reish Lakish</i> believed such behavior to be necessary, Rabi Yochanan disagreed, and the Halachah may follow Rabi Yochanan's opinion. Second, it is possible that <i>Reish Lakish</i> viewed such behavior as appropriate beyond the letter of the law (<i>middat chassidut</i>) but not required by Halachah.</i> The Beit Yosef surmises that the Talmud Yerushalmi believes that the fellow’s certain death overrides the rescuer’s possible death. The Gemara (Pesachim 25b) states that all life is equal by using its celebrated phrase: “How does one know that his blood is redder than his friend’s?” However, the Yerushalmi apparently believes that the blood of one in certain danger is redder than that of one whose life is only possibly in danger.
  However, the <i>Sema </i>(a major commentary to Choshen Mishpat) notes that Rav Yosef Karo (the author of both the <i>Beit Yosef</i> and the Shulchan Aruch) does not cite this ruling of the Talmud Yerushalmi in the Shulchan Aruch (C.M. 426). The <i>Sema </i>(426:2) explains that the fact that the <i>Rif</i>, the Rambam and the Rosh do not cite the Talmud Yerushalmi’s ruling convinced Rav Yosef Karo that it is not accepted as normative Halachah.
  The rulings of the Talmud Yerushalmi are authoritative unless contradicted by the Talmud Bavli (Babylonian Talmud, see the Rosh to Chullin 2:6). Accordingly, the <i>Rif</i>, Rambam and Rosh must believe that the Bavli rejects this ruling of the Talmud Yerushalmi, as noted by the <i>Agudat Eizov</i> (cited in the Pitchei Teshuvah C.M. 426:2). <i>Acharonim</i> scour the Bavli for evidence that it rejects this ruling and cite a variety of sources (summarized in <i>Teshuvot Tzitz Eliezer</i> 9:45).
  The <i>Netziv</i> (<i>HaEmek She’eilah</i> parashat <i>Re’eih</i>) and <i>Maharam Schick</i> (<i>Teshuvot </i>Y.D. no.155) cite a well-known passage (Bava Metzia 62a) as evidence that the Bavli rejects the Yerushalmi’s ruling. The Bavli presents a case in which two people are traveling on an isolated road, and one of them holds a pitcher with sufficient water for only one of the two individuals to survive. Ben Petura rules, “Better that the two of them drink [half the water each] and die than that one should see the death of his fellow.” Rabi Akiva, though, argues that the one holding the water should drink all the water, since “one’s own life enjoys priority over his friend’s life.” The Gemara notes that while Ben Petura’s position was originally the accepted one, Rabi Akiva’s ruling was later accepted as normative.
  The <i>Netziv</i> and <i>Maharam Schick</i> argue that Ben Petura does not advocate an unreasonable opinion that requires a needless death. Rather, he calls for the one who holds the water to risk his life in order to save the other from certain death. Even if there is insufficient water for both to be able to reach a water source, there is a reasonable possibility that one may unexpectedly encounter an oasis, spring or caravan willing to share its water. Therefore, the two do not face certain death by sharing the water. Rabi Akiva, though, rules that one is not obligated to risk one’s life in order to save another’s life, so the one holding the water should ascertain that he will live.
  According to this interpretation, Ben Petura advocates the Yerushalmi’s approach. Thus, since the Bavli concludes in favor of Rabi Akiva, normative Halachah does not require one to sacrifice his life in order to save another’s life. Indeed, <i>the Mishnah Berurah</i> (329:19) and <i>Aruch Hashulchan</i> (C.M. 426:4) rule that one is not required to risk his life to save another.
  They caution, however, that one is forbidden from overzealously guarding his own life by ignoring the plight of one whose life is in danger. Rav Asher Bush, offering an example of a lifeguard’s rescuing someone from drowning, states, “For a qualified lifeguard, there is certainly a risk to jump into a pool to save a drowning swimmer, but it would be more than difficult to suggest that he is not obligated to do so, as common sense does not group this with ‘dangerous activities.’” He argues that “those activities whose statistical risks that are negligible to the point that they are not thought of as risky are precisely the activities that the Torah has obligated even though there may be some slight risks.”
  Sacrificing a Limb to Save Another’s Life
  In the difficult history of our people, we have been faced with unspeakable situations. In one such circumstance, a government official threatened to kill a Jew if his fellow Jew did not permit him to remove a limb. Poskim were asked whether the Halachah requires the sacrifice of a limb in order to save a life. <i>Radbaz </i>(<i>Teshuvot</i> no. 1052 / 3:627) rules that one is not obligated to sacrifice a limb, even if it entails the death of another Jew.
  Among other reasons, <i>Radbaz </i>writes that the Torah is by definition “pleasant and peaceful” (“<i>deracheihah darchei noam v’chol netivoteha shalom</i>,” Mishlei 3:17) and would not compel a person to sacrifice a limb. However, one who sacrifices a limb to save another’s life fulfills a great mitzvah, as long as it does not involve a fifty percent or higher risk of death. Our bodies belong to Hashem and we have no right to place our lives at such great risk.
  <i>Poskim</i> have, generally speaking, accepted this ruling of <i>Radbaz</i> and do not require the sacrifice of a limb, even if there is no significant risk involved. The Shach (Y.D. 157:3) apparently supports this ruling (as he does not require sacrificing a limb to avoid violating any Torah law that does not require one to sacrifice his life), as does the Pitchei Teshuvah (Y.D. 157:15; he cites <i>Radbaz</i> and does not present a dissenting view). Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 2:174:4) and Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> ad. loc.) accept this ruling of <i>Radbaz</i>.
  Live Kidney Donations
  Dayan Weisz (<i>Teshuvot Minchat Yitzchak</i> 6:103) ruled in 1961 that it was forbidden to donate a kidney due to the significant risk of death involved in the procedure and due to concern for future need of the donated kidney. However, in an undated <i>teshuvah</i> (written after 1961 but before 1980; it seems to have been written during the 1970’s), Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 9:45), while initially agreeing with Dayan Weisz, proceeds to modify his stance and considers permitting a live kidney donation if “a team of specialists decides, after a rigorous examination, that the donation does not involve risk to the donor.” He concludes, nonetheless, “<i>kuli hai veulai</i>,” even after all efforts are exerted, the doubt remains unresolved.
  Rav Ovadia Yosef, however, writes in a <i>teshuvah</i> published in 1980 (<i>Teshuvot Yechaveh Da’at</i> 3:84) that Torah-observant specialists have informed him that the risk involved in kidney donation is very slight and that ninety-nine percent of donors return to full health. Based on this information, Rav Ovadia Yosef rules, “It is certainly a Mitzvah to donate [a kidney] to save his fellow from certain death.” We should note that Rav Yosef does not state that it is obligatory to make such a donation. This seems to be due to the ruling of the aforementioned <i>Radbaz</i> that the Torah does not oblige one to give up a limb, even in order to save another’s life.
  Live Liver Donations, Blood and Platelets Donations and Bone Marrow Donations
  Rav Bush notes that live liver donations are permitted but not required by Halachah due to the considerations presented above. Although live liver donation is somewhat riskier than live kidney donation (and is performed less frequently), Rav Bush writes that it does not rise to the level of activities that are deemed too dangerous even to save another from certain death.
  By contrast, since blood and platelets regenerate in a relatively short time, there is no significant danger involved in donating them. Thus, Rav J. David Bleich and Rav Mordechai Willig rule that one is obligated to donate blood and platelets if a dangerously ill individual currently is in need.
  Bone marrow donation is safe and is performed, as in other cases of live organ donations, only if a dangerously ill individual currently is in need. However, removal of the marrow is painful and often requires general anesthesia. Rav Bleich and Rav Willig rule that since the risk of general anesthesia is so minimal, one is obligated to make such donation, even if it will cause some residual pain and lost work time. We noted earlier that the Gemara (Sanhedrin 73a) requires one to expend every effort to save his fellow’s life. We should note, however, that Rama (Y.D. 252:12) and Shach (C.M. 426:1) rule that the beneficiary must compensate the donor, if possible, for the financial loss sustained in saving the beneficiary's life.
  Conclusion
  Many Orthodox Jews are criticized in some circles for not donating organs that can be harvested only from patients who experienced brain stem death but their heart still beats spontaneously. We may respond that the overwhelming majority of Halachic authorities regard such donations to be forbidden and unethical. However, Orthodox Jews should strongly consider donating live organs such as kidneys and livers. Organizations such as the Orthodox Union and Agudath Israel should even consider lobbying for tax breaks for such donors. We should also be at the forefront of blood, platelet and bone marrow donation. This would be a most effective response to our critics.
  
  Separating Conjoined Twins
  
  The ethics and morals involved in this decision are too complex for me. I believe they are too complex for you as well. Therefore I referred it to an old rabbi on the Lower East Side of New York. He is a great scholar, a saintly individual. He knows how to answer such questions. When he tells me, I too will know.
  These words, referring to Rav Moshe Feinstein, were reportedly uttered in 1977 by none other than Dr. C. Everett Koop, then chief of surgery at Children’s Hospital in Philadelphia, who was later to become the surgeon general of the United States during the Reagan administration. He made this statement to his staff when deliberating the ethics of a morally wrenching dilemma. Conjoined twin girls who shared one heart were born to a Kollel family in Lakewood, New Jersey. The heart had six chambers (a heart normally has four chambers) and without surgical intervention both twins would die within a year since the abnormal heart was unable to sustain both babies. The only chance of even one twin surviving was to sacrifice one twin in order for the other to survive., The parents brought the babies for medical care to one of the world’s leading hospitals, Children’s Hospital in Philadelphia.
  This situation posed a moral and legal dilemma that needed to be resolved in many venues. Dr. Koop sought and received legal immunity from being prosecuted for the murder of a twin. Catholic doctors and nurses sought the guidance of their theologians to permit their participation in the surgery. The parents of the twins would give their consent to the surgery only if Rav Moshe Feinstein permitted sacrificing one twin to save the other. When Dr. Koop, a deeply religious man who studied Bible every day, was challenged by his staff as to the morality of killing one baby in order to save another, he replied that Rav Feinstein would provide the necessary moral guidance in this most difficult situation.
  In the end, Rav Moshe Feinstein permitted the surgery after considerable deliberation and even fasting over this weighty matter. He did not, however, issue a written explanation for his ruling. Moreover, other great <i>poskim</i> such as Rav Yaakov Kaminetsky (as reported by Professor Zev Lev in <i>Tradition</i> Summer 1997 p. 80) disagreed with this ruling. A number of suggestions were offered to explain Rav Moshe’s decision but none was convincing. Finally, in the Fall 1996 issue of <i>Tradition</i> (pp. 106-110), Rav J. David Bleich offered a convincing explanation of this ruling based on another ruling of Rav Feinstein that appears in <i>Teshuvot Igrot Moshe</i> Y.D. 2:60.
  Sacrificing One Life to Save Another
  Normally Halachah forbids sacrificing one life to save another. This principle is articulated by the Mishnah (<i>Ohalot </i>Ch. 7 Mishnah 6):
   A woman whose life is endangered in hard labor is permitted to have the pregnancy terminated. However, once the head of the baby has emerged, one cannot touch it as we are forbidden to kill one individual to save another [<i>ein dochin nefesh mipnei nefesh</i>].
  This principle is reinforced by the Talmud Yerushalmi (<i>Terumot </i>8:4) which states:
  If a group of individuals on a journey encounter evildoers who say to them ‘Give us one member of your group or we shall kill the rest of you’ let them all be killed and not release even one Jewish soul [<i>afilu kulan neheragin lo yismasru nefesh achat b’Yisrael</i>].
  Accordingly, not only can we not kill an individual in order to save the life of another individual, we cannot even kill an individual even to save the lives of numerous people.
  A Possible Exception to the Rule
   The Yerushalmi poses a serious question on this principle from the episode related in <i>Shmuel </i>II Ch. 20. The Navi records the story of a “wise woman of the town of Avel Beit Ma’achah” who hands over the rebel Sheva ben Bichri to King David’s general Yoav ben Tzeruyah. She did so in order to spare the entire town from being destroyed by for harboring Sheva ben Bichri. The Navi apparently condones the actions of this woman as it refers to her with the complimentary title “wise woman”. Accordingly, the Yerushalmi is puzzled why she is complimented when she sacrificed the life of one in order to save the lives of others.
  The Yerushalmi cites two explanations for why the case of Sheva ben Bichri differs. Rabi Yochanan explains that Sheva differs because he was designated for death by Yoav ben Tzeruyah. <i>Reish Lakish</i> explains that the situation of Sheva is different because according to Halachah, Sheva deserved the death penalty, as one who rebels against the king may be put to death (Rambam <i>Hilchot Melachim</i> 3:8).
  The debate between Rabi Yochanan and <i>Reish Lakish</i> remains unresolved as <i>Rishonim</i> debate whose opinion should be followed. The Rama (Y.D. 147:1) and the Taz (ad. loc. 7) disagree as to whether we follow Rabi Yochanan or <i>Reish Lakish</i>. This debate however appears to be entirely irrelevant to the case of the twins in Children’s Hospital. Neither child was “designated for death” nor was either baby guilty of a capital crime which would permit sacrificing one child to save the other.
  <i>Rodeif</i>
  Another circumstance in which Halachah permits killing one individual to save another, is a situation of <i>rodeif</i> (Rambam <i>Hilchot Rotzeiach Ushmirat HaNefesh</i> 1:9). One must kill an individual who is attempting to kill someone. Perhaps one of the twins can be construed as a <i>rodeif</i> since she is threatening the life of her twin. The Rambam (<i>ibid</i>.) seems to believe that even a baby potentially may be classified as a <i>rodeif</i> even though it has no malicious intent.
  Nonetheless, the status of each twin as a <i>rodeif</i> neutralizes the license to kill one to save the other. Rav Akiva Eiger (Ketubot 33b) states that Halachah forbids lethal intervention in a situation of mutual pursuers. For example, if one were witness to the duel between Aaron Burr and Alexander Hamilton one would be forbidden to kill one of them to save the life of the other. Similarly, since each of the two twins pursues the other’s life, the Halachah does not grant permission to kill one to save the other. This case is similar to the aforementioned Mishnah in <i>Ohalot </i>which forbids killing the baby in order to save the mother after the baby’s head has emerged from the birth canal.
  Saving a Mother by Killing a Fetus
  However, there is a situation in which Halachah permits killing one of two mutual pursuers to save the other. The aforementioned Mishnah in <i>Ohalot</i> states “A woman whose life is endangered in hard labor is permitted to have the pregnancy terminated”. Rambam (ad. loc.) explains that the fetus is considered to be like a <i>rodeif</i> to the life of the mother. This interpretation is astounding, since if the fetus is construed as a <i>rodeif</i>, why is it forbidden to kill the baby to save the mother after it has emerged from her body? For a list of sources of the solutions offered to resolve this difficulty, see Rav Bleich’s <i>Contemporary Halachic Problems</i> 1:347-349.
  Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> Y.D. 2:60) resolves the problem as follows. Rashi (Sanhedrin 72b s.v. <i>Yatza Rosho</i>) asserts that a fetus is considered only potential life until it emerges from its mother’s body. This manifests itself in Halachah’s exempting the murderer of a fetus from death. Thus, explains Rav Feinstein, the mother and the fetus are mutual pursuers but “unequal pursuers”. The mother is pursuing only a potential life yet the fetus is pursuing one who is fully alive. Accordingly, the fetus is a qualitatively greater <i>rodeif </i>than the mother. Therefore, Halachah sanctions destroying the fetus to save the life of the mother.
  Rav Bleich’s Explanation of Rav Moshe’s Ruling
   Rav Bleich argues that the same reasoning applies to the case of the conjoined baby sisters. The sisters were unequal pursuers since the right-side twin had no chance of survival for more than a year even if the left-side twin were to be sacrificed. The left-side twin, however, had a very reasonable chance of survival if the other twin were to be sacrificed. The right-side twin’s life expectancy is regarded as only <i>chayei sha’ah</i> (temporary life; see Avodah Zarah 26b and a full explanation in <i>Gray Matter</i> 3:28-35) while the right-side twin enjoyed the possibility of achieving a normal lifespan.
  Thus, the baby twin girls could be construed as “unequal pursuers”, since the left-side baby pursues only <i>chayei sha’ah</i> whereas the right-side baby is pursuing one with a possibility to live a normal lifespan. It follows that the right-side twin is a qualitatively greater <i>rodeif</i> than the left-side twin and thus the right-side twin may be sacrificed in order to save the left-side baby. Thus, Rav Bleich offers a cogent explanation for Rav Moshe’s ruling.
  One the other hand, Rav Yaakov Kaminetsky might have rejected the analogy between the situation of the twins and that of the pregnant woman because the inequality between fetus and mother is far greater than the gap between the twins. The difference between the mother who is classified as alive and the fetus who constitutes only potential life is a qualitative and fundamental difference as opposed to the twins both of whom constituted a full life. I thank Rav Chaim Schertz of Harrisburg, Pennsylvania for providing this insight.
  Conclusion
  Rav Moshe’s ruling was implemented in practice by Dr. Koop and the right-side twin was sacrificed in order to save the life of the left-side twin. Sadly, the left-side twin died a few weeks later not due to complications from the surgery but due to contracting hepatitis B from a blood transfusion. Although the loss of both of these precious children constitutes an enormous tragedy, a bit of a silver lining in this very dark cloud is the great <i>Kiddush Hashem</i> and honor of Torah generated by the enormous respect Dr. Koop accorded to Rav Moshe Feinstein and his ruling. May the study of Rav Moshe’s ruling serve to honor and elevate the <i>neshamot</i> of these two dear young infants.
  
  Frozen Pre embryos, to Whom do they Belong?
  
  Custody disputes between divorcing spouses have occurred from time immemorial. Modern technology, however, has introduced a new variation on this theme – disputes as to which parent has control of frozen preembryos produced in the process of in vitro fertilization (IVF).
  In the process of IVF the husband and wife each contribute their genetic material to create a fertilized egg in a laboratory (referred to as a pre-embryo). Usually the pre-embryo is subsequently implanted into the wife. Sometimes, though, the pre-embryos are not implanted immediately (for a variety of reasons) and are frozen for implantation at a later time. In recent years courts throughout the world have adjudicated disputes between divorcing spouses as to who controls the frozen pre-embryos.
  Two important articles have outlined Halachic perspectives on this issue (Rav Yitzchak Breitowitz, <i>Tradition</i> Fall 1996 and Rav Ronald Warburg, <i>Tradition </i>Summer 2002). In this essay I shall outline a ruling of the Israeli Rabbinical Court of Appeals on this topic and seek to demonstrate that a mainstream view has emerged regarding this issue.
  The Dispute 
  A man who had been previously married and fathered three children remarried a woman who had not been previously married. This Israeli couple was not able to produce children naturally and began the process of IVF. After a difficult process in which the eggs were harvested from the wife, the husband contributed his genetic material and a number of pre-embryos were created. Two attempts to implant the pre-embryos were not successful. Two years passed and a major crisis emerged in the relationship which led the husband to file for divorce, which the wife contested. The district <i>beit bin</i> ruled in favor of the wife and rejected the request for divorce without issuing even a recommendation to divorce.
  The husband, however, requested an injunction against the pre-embryos being implanted in the wife, which the <i>beit din</i> granted. The <i>beit din</i> recommended, however, that the husband should, as an act of <i>gemilut chassadim</i> (kindness), permit the wife to implant the pre-embryo in order to afford her the opportunity to have a child which she so deeply desired. The <i>beit din</i> noted, though, that it could not compel such <i>gemilut chassadim</i> since it is a mitzvah whose reward is outlined in the Torah, and whose performance therefore cannot be compelled (Chullin 110b and see <i>Tosafot</i> Bava Batra 8b s.v <i>Achpei</i>).
  The wife appealed this ruling to the Israeli Rabbinic Court of Appeals (see <i>Gray Matter</i> 3:246-248 for a discussion of this fascinating institution) and each of the <i>dayanim</i> (rabbinical judges) published his reasoning in volume 22 of <i>Techumin</i>. We shall begin with the approach of Rav Avraham Sherman who divides this question into four issues.
  Partnership Obligation
  The wife’s attorney argued that the couple by virtue of its creating pre-embryos has created a partnership. He cited Shulchan Aruch (C.M. 176:15) which rules that one may compel his partner to complete the project begun by the partnership. For instance, if two individuals entered a partnership to build a home, and one partner wishes to abandon the project against the other’s wishes <i>beit din</i> may be compel him to complete it.
  The husband’s attorney on the other hand, cited Rav Shaul Yisraeli (<i>Teshuvot Chavat Binyamin</i> 3:108) who rules that in a case where a couple has divorced, the man may object to implanting the pre-embryo into his former wife. In such a case, argues Rav Yisraeli, the situation is one of <i>oness</i> (circumstances beyond one’s control) in which a <i>beit din</i> would not compel a partner to complete the project. In our case, the husband’s attorney argued that since it was inevitable that the couple would divorce (the wife even agreed to divorce in exchange for the husband’s consent to the pre-embryo implantation) one could argue that the situation is classified as <i>oness</i>.
  However, a partner’s right to claim <i>oness</i> based on an issue that emerged after the partnership was created, is disputed by quite a number of authorities. Rav Yoezer Ariel (in an essay published in <i>Assia</i> 5761), Rav Warburg (ad. loc.) and Rav Itamar Warhaftig (<i>Techumin</i> 16:181) all note that Halachah does not allow for unilateral withdrawal from a bilateral agreement based on <i>oness</i>. For example if the motor of a purchased automobile fail, its owner cannot retroactively void the sale of the automobile (if the failure was not due to a preexisting condition) by claiming that he/she would have never purchased the car had he/she known that its motor would fail (see <i>Tosafot</i> Ketubot 47b s.v. <i>Shlo Katav</i> for a full explanation of this fundamental matter).
  Rav Sherman argues, however, that the couple’spartnership has fundamentally changed. The original agreement was to create a family. However after the failure of the marriage (when the husband no longer wanted to have a child with his wife), the partnership would be characterized as one to facilitate the wife’s having a child. Rav Sherman asserts that the husband agreed to create a family but did not consent to simply facilitate the wife’s having a child. Therefore, the latter type of partnership never existed, so the wife cannot compel the husband to allow her to implant the pre-embryos.
  A Husband’s Obligation to Provide his Wife with Children
  Even though a woman is not obligated to have children, Halachah endows a wife with a right to demand that her husband provide her with children. The Gemara (Yevamot 65b, codified by Shulchan Aruch E H. 154:6) states that the wife may claim she needs “a staff to lean on [when she ages] and a shovel to bury her”. On this basis the wife’s attorney claimed that since the couple was still married (and the <i>beit din</i> did not even issue a recommendation for divorce) the <i>beit din</i> should compel the husband to permit the pre-embryo implantation as part of his obligation to provide her with children.
  Rav Sherman counters that Halachah compels a husband to attempt to provide his wife with children only in a natural manner. He cites a ruling of Rav Shlomo Zalman Auerbach (<i>Noam </i>1:158; also see his ruling cited in <i>Nishmat Avraham</i> 5:113) that a couple cannot be compelled to have children using artificial means such as intrauterine insemination. Rav Sherman notes that the highly regarded <i>dayan</i>, Rav Chaim Zimbalist (cited in the <i>Encyclopedia Refu’it Hilchatit</i> on artificial insemination) agrees to this approach. Rav J. David Bleich and Rav Eliyahu Bakshi Doron have also adopted this approach.
  Chessed and Halachic Public Policy Concerns
  Rav Sherman rejects the district <i>beit din</i>’s recommendation to the husband to permit the implantation as an act of <i>chessed</i>. He notes the celebrated Gemara (Eiruvin 13b) which cites the conclusion of a debate that raged between Beit Shamai and Beit Hillel for two and a half years as to whether it is better for man to have been created or not. They concluded that “it is better for one to have not been created than to have been created” (see Taz O.C. 46:4 for this translation as well as a halachic application of this passage in the Gemara). Rav Sherman argues that a child is certainly better off not being born into a situation of conflict in which his father does not even want him to be created.
  Moreover, Rav Sherman cites a ruling of Rav Yosef Shalom Eliashiv that IVF is permitted only for couples who have not fulfilled the mitzvah to have children. Rav Sherman explains that Rav Eliashiv permits IVF to help a couple create a family and not merely for a woman to have a child.161<i class="footnote">Rav Shlomo Zalman Auerbach (cited in <i>Nishmat Avraham</i> 4:186) and Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer</i> 15:45 and see <i>Gray Matter </i>2:105 n. 5) subscribe to this approach as well.</i> Rav Sherman argues that since it seems inevitable that this couple will divorce, producing a child in this circumstance violates halachic values and policy.
  These rulings seem to emerge from a comment made by the <i>Sefer Hachinuch</i> (mitzvah 582) that Hashem desires children produced by males and females who unite in a kosher manner. This implies that Hashem does not want children produced by single women simply to satisfy their need to have children. For example, Rav Yigal Shafran (<i>Techumin</i> 20:347-352) on this basis objects to harvesting sperm from a husband who died childless in order to provide his widow with children. Rav Elazar Meyer Teitz similarly told me when a single woman who asked me if it is permissible for her to conceive a child through artificial insemination, to advise her that the Torah objects to having children in such a manner. Rav Teitz stated that it is better in such a case for the child not to be born.
  Rav Shlomo Dichovsky’s Opinion
  Rav Dichovsky, on the other hand, rules that the implantation should be permitted even absent the husband’s consent. He argues that once the egg has been fertilized it attains a life of its own and neither husband nor wife retains any ownership rights to the fertilized eggs. Rav Dichovsky asserts that therefore neither the husband nor the wife enjoys the right to destroy the pre-embryo.
  Furthermore, Rav Dichovsky argues that since the couple in this case was still married and a <i>beit din</i> had not even recommended divorce, the husband’s obligations to his wife remain in full effect. Moreover, he believes that infertile couples are obligated to undergo any viable method to have children and that either husband or wife can demand that the other spouse expend whatever financial resources and anything else that is necessary in order to have children. Therefore the husband was obligated to consent to the implantation.
  Regarding the argument that it is better for such a child not to be born, Rav Dichovsky writes “Just as no one would justify an abortion in such circumstances, so too no one should prevent the continued development of a fertilized egg”. Rav Dichovsky concludes “In my opinion, also from a moral perspective, we do not enjoy the right to destroy a kernel of life, for whatever reason”.
  Response to Rav Dichovsky’s Opinion
  Rav Dichovsky’s opinion appears to lie beyond mainstream opinion of halachic authorities in this matter. He appears to be the lone authority that actually requires couples to undergo IVF in order to have children. In addition, most halachic authorities permit the disposal of unwanted preembryos. These authorities include Rav Mordechai Eliyahu, Rav Zalman Goldberg, Rav Chaim David Halevy, Rav Moshe Shternbuch, Rav Aharon Soloveitchik, Rav Shmuel Wosner and Rav Shaul Yisraeli (these views are cited in <i>Gray Matter</i> 2:111-112, Rav Warburg’s aforementioned essay and Rav J. David Bleich’s essay in <i>Tradition </i>Fall 1996).
  Although Rav Bleich does not permit discarding unwanted pre-embryos, the mainstream halachic opinion seems to support doing so. In fact, both the Orthodox Union and the Rabbinical Council of America in 2001 encouraged President Bush to permit stem cell research on unwanted preembryos and applauded President Obama’s decision to allow stem cell research under these circumstances.
  Conclusion
  The third <i>dayan</i> on the appeals <i>beit din</i>, Rav Shlomo Ben Shimon agreed with Rav Sherman that the <i>beit in</i> should not compel and not even recommend the completion of the IVF process in this circumstance. He notes yet another reason to discourage the implantation: Halachah frowns upon couples engaging in a cooperative venture after their divorce (Shulchan Aruch E.H. 119:7-9). The couple would inevitably work together to raise their children if the pre-embryos were implanted. If a couple already has children, Rav Ben Shmon observes, then we have no choice other letting the divorced couple continuing to interact. However, in our situation this Halachah provides another reason to discourage this couple from completing the IVF process.
  It is indeed painful to be unable to satisfy the wife’s emotional needs in this and other similar situations. Nonetheless, there is a bigger picture to be considered that favors not bringing children into the world in such circumstances. We should note that since the appeals <i>beit din</i> did not permit the implantation for a couple that, technically speaking, was still married, it would undoubtedly forbid such an implantation if the couple was already divorced. It certainly would also prohibit the husband if divorced and remarried from having the fertilized eggs implanted in his new wife (see <i>Nishmat Avraham</i> 4:186, where Rav Shlomo Zalman is cited as objecting to IVF when the egg was not harvested
  
  National Health Care Choices
  
  The staggering cost for quality health care constitutes a major problem for many countries today. The Israeli government has dealt with this problem since its inception by adopting a national health care system in which the government provides health care for all its citizens. Health care constituted 7.8% of Israel’s 2008 budget, costing 2,065 dollars per person. Despite what appears to be a generous allocation, this amount is insufficient to pay for many citizens’ essemtial medical needs.
  Thus, painful decisions must be made as to which medications that will be included in what is referred to as the “basket of medicines”. These dilemmas include choices between medicines that will briefly extend the life for very ill patients and those that will prevent serious illnesses such as blindness, alleviate very painful skin diseases such as psoriasis or ease nerve pain. The Israeli government convenes a special committee representing the various sectors of Israeli society is convened by the Israeli government to decide these issues. A rabbi, Rav Yuval Sherlow, is one of the members of the committee. He explains his approach to some of these dilemmas in <i>Techumin</i> volume 28 (pp. 383-391).
  Must the Government Provide Health Coverage?
  Rav Sherlow very briefly raises a most basic issue in a footnote early in his article: “what is the responsibility of a government to its citizens” in terms of providing health care. Americans have been intensely debating this issue in recent years. Rav Sherlow leaves this question unanswered but refers to the remarks of Rav Itamar Warhaftig (<i>Techumin</i> 1:485) who notes that in the time of the Gemara the government did not assume responsibility to provide health care, rather citizens paid for it privately as most do currently in the United States.
  Rav Warhaftig notes that as times have progressed and government organization has become more sophisticated, it is obligated, in his opinion, to provide health care just as it is obligated to provide roads and courts. He argues that government paid health care “facilitates essential services to all levels of the population at a lower cost than in a private market”. Rav Warhaftig admits, however, the downside of this approach “when individuals abdicate their responsibilities and rely on the government to care for them”.
  One may explain Rav Warhaftig’s view based on Shulchan Aruch (C.M. 163:1) which states that the leadership of a city may coerce each member to contribute payment for essential services such as a wall to protect the city from marauders. National health insurance may be compared to a wall as it protects all the residents of a country from illness.
  However, the matter is not a simple one. Although socialized medicine provides more affordable health care than private service (since the government controls costs), the question is whether medical services become diminished. The Gemara (Bava Kama 85a) in a celebrated statement asserts that “The service of an unpaid doctor is worthless”. This is essentially the dilemma that the American people have been grappling with.
  The Rama (ad. loc.) writes that debates regarding public expenditures to service and protect the community are resolved by “convening all the tax paying members of the community so that everyone will express his opinion for the sake of Heaven (i.e. considering the best interests of the community and not personal needs) and the majority opinion will be followed”. The health care dilemma in the United States should also be resolved by our elected officials who should reach a decision by a process in which each side in the debate voices its opinion for the sake of the entire country instead of focusing on narrow concerns.
  Does Halachah Resolve National Health Care Dilemmas?
  Rav Sherlow writes that since the Israeli government has assumed the responsibility to pay for health care for all, it must make difficult decisions as to what it pays for. However, he raises a most intriguing question – does Halachah allow the community to decide such matters in the democratic manner described by the aforementioned Rama or must halachic authorities make the decisions based on halachic sources. Rav Sherlow cites from Rav Yosef Dov Soloveitchik’s <i>Halachic Man</i> to illustrate the opinion that “everything is subject to Halachic adjudication”:
  There is no phenomenon that Halachic man does not relate to….He is interested in sociological creations such as the state, society and the relationships of individuals within the matrix of the community. The Halachah encompasses business issues, damages caused by neighbors, monetary disputes, partnerships, agents, workers, artisans and watchmen. It encompasses family life – marriage, divorce, levirate marriage, <i>sotah</i>, <i>mi’un</i>, rights of husbands and wives – their obligations are clarified by Halachah. War, supreme courts, lower courts and punishments – these are among the topics of the Halachah which are as numerous as the sand by the sea. The master of Halachah grapples with psychological problems such as sanity versus insanity, whether it is appropriate for a couple to remain married, <i>migo </i>and assumptions, judicial discretion, and presumptions of deceit and suspicion.
  Paying for Medicines that Save Lives or that Alleviate Excruciating Pain?
  Assuming that Halachah resolves national health care allocation dilemmas, Rav Sherlow proceeds with his analysis. He notes that Rav Eliyahu Bakshi Doron argues that the Halachic position regarding this matter is absolute, in that it always favors life-saving medicine over medicines which improve quality of life. This approach seems quite logical for if one has a choice between saving one person’s life and another individual from psoriasis, the answer would obviously appear to prefer saving a life.
  Rav Sherlow, however, develops an approach for a community to think otherwise. Rav Sherlow’s fundamental point is to distinguish between the dilemmas of a community and the dilemmas of individuals. An individual, who has to make the choice whether to save someone’s life or restore another individual’s vision, should obviously choose to save a life. However, the considerations of a community are different. At times, the community may or even must overlook the needs of certain individuals in order to further the greater benefit the community.
  For example, the Mishnah (Gittin 45a) forbids paying excessive ransom to redeem captives. One reason for this, states the Gemara (ad. loc.), is because it is too oppressive for the community. Rashi (ad. loc. s.v. Mipnei Duchka D’tzibura) explains “We may not have to pressure the community and impoverish the community for these [captives]”. Some opinions believe this Halachah applies even when the lives of the captives are in grave danger (see commentaries to Shulchan Aruch Y.D. 252:4 as well as <i>Techumin</i> 4:108-116). Another example is that Halachah (Sanhedrin 20b) permits a king to wage a <i>milchemet reshut</i> (discretionary war) to further the national interest, despite the danger such a war poses to soldiers.
  On the other hand, we must stress that the needs of the community do not always outweigh those of the individual. For example, the individual takes precedence over the community in the famous ruling of the Talmud Yerushalmi (<i>Terumot</i> 8:4) which states:
  If a group of individuals are on a journey and they are encountered by evildoers who say to them ‘Give us a member of your group or we shall kill the rest of you’ – let them all be killed and not release even one Jewish soul [<i>afilu kulan neheragin lo yimasru nefesh achat b’Yisrael</i>].
  What emerges is that Halachah requires a balance between the needs of a community and the needs of the individual. Rav Sherlow argues that the Israeli government is not required to spend all its money on basic necessities such as security and health care instead of allocating money to develop society economically. One could argue that in the long run the Israeli government will be able to better serve the society and widen the basket of medicines if it develops further economically.
  Moreover, the government must do its best to make the country attractive so that more people will be willing to move there and fewer will desire to leave. The flight of highly talented individuals from Israel could in the long run also endanger the population on a whole. A government is obligated to consider <i>pikuach nefesh</i> in the long run and not merely the short term (see <i>Shavu’ot</i> 35b and <i>Gray Matter </i>3:222).
  An example of such conduct is Rav J. David Bleich’s citing (<i>Tradition</i> Spring 1992 p. 66) with approval the reported action of British Prime Minister Winston Churchill during World War Two. It is alleged that Churchill knew a few hours in advance that the Germans would be bombing Coventry yet he did not warn its residents to seek shelter. He reasoned that this would inform the Germans that the British had broken their communication codes, which would cost many mores lives in the future, having lost this major advantage. Rav Bleich who cites Churchill’s action with approval (<i>Tradition</i> Spring 1992 p. 66) is willing to consider “ignoring the imminent danger to a smaller number in order to prevent future danger to a larger number of people” if “it is certain or virtually certain that the future danger will become actual”.
  Rav Sherlow cites Rav Yitzchak Zilberstein (<i>Chashukei Chemed Pesachim</i> 69b s.v. <i>Yachid Nami</i>) who writes:
  In regards to the priorities government authorities must assume, such as whether they should develop a transplant department or the emergency room department, I understood from my father-in-law [Rav Yosef Shalom Eliashiv] that the needs of a community are also considered Pikuach Nefesh. Indeed the Halachah essentially obligates us to save as many sick individuals as possible and to invest the money into emergency care instead of the transplant unit. However, it is impossible to either close or not develop the transplant unit, because the needs of a community are also considered Pikuach Nefesh. If the transplant department would close, it will strike fear in the community, and people will not want to live in this country as it states in tractate Sanhedrin (17b) that it is forbidden for a Torah scholar to live in a city which does not have a doctor. People will feel as if they live in a desert. Therefore, even though a transplant unit requires more investment and with that money could save more lives the very existence of such a unit calms the community with the knowledge that in case of necessity transplants are available. This is considered Pikuach Nefesh.
  <i>Nedarim</i> 80b – Life vs. Laundry
  Our dilemma depends to a great extent on the resolution and explanation of a somewhat puzzling <i>tannaitic</i> dispute recorded in the Gemara (Nedarim 80b). The <i>Tanna Kama</i> (first recorded opinion) asserts that if one town has sufficient water for both washing clothes and drinking and a neighboring town has no water even for drinking, the first town must give of its water it would use for washing clothes and give it to the neighboring town to drink. Rabi Yosi astonishingly disagrees and rules that the first town need not share its water for washing clothes even to save lives. The Gemara (81a) explains that the first town’s residents have priority since if they do not wash their clothes, they will lose their sanity.
  Rav Sherlow derives from this Gemara that one need not sacrifice one’s medicine to alleviate severe pain or prevent blindness in order to briefly prolong another’s life. Rav Yisrael Rozen, in an editorial critique of Rav Sherlow, cites Beit Shmuel (80:15) to demonstrate that mainstream Halachah accepts the opinion of the <i>Tanna Kama</i> instead of that of Rabi Yosi. In addition, he cites <i>Teshuvot Achiezer</i> (Y.D. 2:23), <i>Teshuvot Igrot Moshe</i> (Y.D. 1:145) and Rav Unterman (<i>B’Tzomet Hatorah Vehamedinah</i> 3:313) as limiting even Rabi Yosi’s ruling to a case in which the residents of the neighboring town would suffer more than those of the first town but would not die.
  Rav Sherlow’s Conclusion
  Based on the above, Rav Sherlow presents the following nuanced approach, which contrasts sharply with Rav Bakshi Doron’s aforementioned absolute stance regarding this difficult dilemma:
  The Halachah permits, and possibly obligates, including in the basket of medicines those that redeem patients from excruciating pain, despite the fact that as a result medicines that briefly prolong life (but do not cure disease) will be excluded from the basket. The community is obligated to take extra precaution in these decisions, due to the danger of denigrating the importance of every moment of life. The stature of the Torah’s view of the holiness of life teaches that despite the permission to include medicines that improve the quality of life, the life-saving medicines and medicines that lengthen life should enjoy priority over other medicines.
  Rav Sherlow, following in Rav Eliashiv and Rav Zilberstein footsteps, is concerned that Israel would be rendered an undesirable place to live if its national health insurance did not offer medicines to prevent blindness and alleviate painful skin diseases such as psoriasis.
  We pray that the individuals entrusted to resolve the difficult dilemmas concerning health care coverage, whether in Israel or elsewhere, do so in the spirit of the Halachah which seeks to balance the needs of individuals and community without one necessarily outweighing the other. In addition, we pray that all involved in the decision making process do so with intelligence, sensitivity and consideration of the long term interests of the country.
  
  Sports
  
  Women Firing Weapons in Alaska on a Friday
  
  A group of young women touring Alaska asked me if it is permissible for them to engage in recreational gun shooting on a Friday. The basis of the questions was a ruling they had received from their Rav that they should avoid performing Torah prohibited Shabbat labor on Fridays in Alaska.
  Basis for the Ruling – The Date Line Dispute
  This ruling emerges from the celebrated dispute regarding the location of the halachic international date line; an issue that is summarized in an essay written by Torah Academy of Bergen County graduate Willie Roth and is archived at www.koltorah.org. There are three major opinions regarding this issue. The <i>Chazon Ish</i> (O.C. <i>Kuntress Eighteen Hours</i>) locates the date line ninety degrees east of Jerusalem, while Rav Yitzchak Herzog, Rav Yechiel Michel Tukachinsky and other leading Jerusalem rabbis of the 1940’s believe that it is one hundred and eighty degrees from Jerusalem. Rav Zvi Pesach Frank (<i>Teshuvot Har Zvi</i> 1:138) rules that there is no such thing as a halachic date line. Instead, a person just follows the day that the country that he is in is observing. The appendix to <i>Encyclopedia Talmudit</i>, vol. 22 contains an extensive discussion of this issue.
  According to both the <i>Chazon Ish</i> and Rav Frank, Alaska is located to the east of both the international and halachic date line. However, according to the Jerusalem rabbis, half of Alaska lies to the west of the halachic date line (the 144.8W meridian according to this opinion) and Shabbat should thus be observed there on what the international community regards as Friday.
  An additional factor is the opinion of the <i>Chazon Ish</i> “that we do not split the continent”. According to the <i>Chazon Ish</i>, if part of a continent lies within ninety degrees to the east of Jerusalem, then the entire continent is considered to lie to the west of the date line. Similarly, even according to the Jerusalem rabbis since Alaska is part of North America, most of which lies east of the halachic date line, the <i>Chazon Ish</i>’s stretches the line to the coast, so all of Alaska is east of the halachic date line. However not all authorities agree with this assertion of the <i>Chazon Ish</i>. The Brisker Rav (cited by Rav Hershel Schachter, <i>Journal of Halacha and Contemporary Society</i> 21:69), for example, is reported to have disagreed.
  The Rav of these young ladies considered all these opinions and issued a compromise ruling that one should refrain from biblically forbidden Shabbat labor (such as writing, lighting a match and driving a car) if one is located to the west of the 144.8W meridian on Friday in Alaska.
  Firing Weapons – A Biblical Prohibition or Rabbinic Prohibition
  I ruled that it is forbidden for these women to fire weapons on Friday. It appears obvious that firing a rifle constitutes a biblical level labor of <i>mavir</i> (kindling a fire). Combustion occurs when firing a gun, just as when pressing the accelerator in an automobile. Even though there is no lasting effect since one has accomplished his goal, one is considered to have performed a bibilcal act of labor.
  In order to appreciate this issue we must briefly explore the concept of “<i>eino mitkayeim</i>”. The Mishnah (Shabbat 102b) states a broad rule (in the context of presenting the rules concerning <i>boneh,</i> building on Shabbat) - “This is the rule: one who performs a creative act [<i>melachah</i>] that has a permanent effect [<i>mitkayeim</i>], has violated a biblical prohibition”. A <i>melachah</i> that has only a temporary effect, by contrast, is only rabbinically prohibited.
  Although the rule is clear its application is not, as it is difficult to precisely define the concept and category of <i>davar hamitkayeim</i>. For example, the amout of time the effects of the <i>melachah</i> must last in order for it to be considered <i>mitkayeim</i> is ambiguous and subject to debate. The <i>Tiferet Yisrael</i> (<i>Kalkelet HaShabbat</i>, <i>Boneh</i>) cites the Pri Megadim who rules that a <i>melachah </i>that lasts eight or nine days is defined as <i>mitkayeim</i>. The Shaar Hatziyun (303:68) infers from the Rambam (<i>Hilchot Shabbat</i> 9:13) that a <i>melachah</i> is defined as <i>mitkayeim</i> if it lasts through Shabbat. However, he writes that Rashi (Shabbat 102b s.v. <i>B’Shabbat</i>) seems to believe that <i>mitkayeim</i> means that it lasts forever. In the context of the <i>melachah</i> of <i>kosheir </i>(tying a knot), the Rama (O.C. 317:1) cites two opinions regarding when a knot is considered to be “lasting” (<i>shel kayama</i>). One opinion is that it must last one day and one opinion says it must last seven days in order to be defined as “permanent”.
  To complicate matters further, it is clear that certain acts are considered <i>mitkayeim</i> even if their effects are fleeting. For example, Rav Hershel Schachter once noted (in a personal conversation) that striking a match constitutes a biblical violation on Shabbat even though the fire lasts only momentarily. It is regarded as <i>mitkayeim</i> since one has accomplished his goal (<i>melechet machshevet</i>; see the Rashba, Shabbat 115b s.v. <i>Ha DeAmrinan</i>, who asserts that this is the reason why a <i>davar she’eino mitkayeim</i> is not biblically forbidden - because one has not accomplished his goal through such an action).
  In addition, the Rambam (<i>Hilchot Shabbat</i> 12:1) writes that it is biblically prohibited to heat metal on Shabbat until it glows, even though the metal will cool down relatively quickly after it is heated. Rav Dovid Ribbiat (<i>The Thirty Nine Melochos</i> 1:134 in the Hebrew section) explains that the concept of <i>mitkayeim</i> varies from <i>melachah </i>to <i>melachah</i> as well as from act to act. A match normally is lit only momentarily and metal is usually heated to a glow only for a brief period; thus these acts are regarded as <i>mitkayeim</i>.
  Rav J. David Bleich commented to me that each time one presses on an automobile’s accelerator, he is considered to have engaged in a biblical-level labor of <i>mavir</i>. Since he has accomplished his goal in its normal manner then the act constitutes a biblical-level act of <i>mavir</i>. Firing a weapon seems no different.
  We should note that even if I felt that these women’s Rav could have adopted a more lenient ruling regarding Shabbat observance in Alaska based on the preponderance of opinions that do not require any Shabbat observance on Friday in any part of Alaska, I had to respect the Rav’s ruling. The Rama (Y.D. 242:31) forbids overturning another’s Rav’s ruling except for very limited circumstances (see <i>Gray Matter</i> 3:243-248 for further discussion of this issue).
  Women and Firearms
  In addition to Shabbat concerns, women are forbidden to bear arms any day of the week. The Torah (Devarim 22:5) prohibits women to wear clothing customarily worn by men and vice versa. The Rambam (<i>Hilchot Avodah Zarah</i> 12:10) rules in accordance with the view of Rabi Eliezer ben Yaakov (<i>Nazir</i> 59a) who includes women bearing arms in this prohibition. Rashi (ad. loc. s.v. <i>Talmud Lomar</i>) adds that it is for this reason that Yael killed Sisera with a peg instead of a conventional weapon (<i>Shofetim</i> 5:26 see <i>Targum Yonatan ben Uzziel</i> ad. loc. who presents the same explanation as Rashi).
  Both Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> O.C. 4:75:3) and Rav Ovadia Yosef (<i>Teshuvot Yechaveh Da’at</i> 5:55) forbid women from bearing arms except in life-threatening situations. Indeed, the common practice in most of the Religious-Zionist community is for women not to serve in the Tzahal but to perform <i>Sheirut Leumi</i> (national service), following the ruling of Rav Tzvi Yehuda Kook (<i>Techumin</i> 3:387). Thus, I instructed the women never to visit a firing range.
  Recreational Firing of Weapons
  Moreover, I believe that recreational gun shooting is an inappropriate activity for a Jew, male or female, any day of the week. While training to use a firearm for security needs such as serving in <i>Tzahal</i> or guarding Israeli communities is certainly permitted and is a preparatory act for the mitzvah of <i>gemillut chessed</i>, in my opinion recreational firing of arms should be avoided. My opinion is analogous to Rav Yechezkel Landau’s (<i>Teshuvot Noda Biy’hudah </i>Y.D. 2:10) ruling discouraging recreational hunting (as well as forbidding it for another reason) because in the Tanach we find recreational hunting is an activity of people of poor character such as Esav and Nimrod. Rav Landau believes that certain activities are simply not fitting for a Jew even if not technically forbidden.
  In fact, the majority opinion in the Mishnah (Shabbat 63a) regards weapons as degrading. The Mishnah notes that when Mashiach will come all weapons will be converted into agricultural equipment (<i>Yeshayahu</i> 2:4). Tragically, our enemies force us to don the “clothes of Eisav” and bear arms to defend ourselves. Although we are grateful that today Jews are able to defend themselves, we would much prefer to eliminate firearms from the face of the earth. Recreational gun use is not compatible with Yeshayahu’s vision.
  Conclusion
  Accordingly, there are three reasons for these women not to fire weapons on Friday in Alaska – it might violate Shabbat (according to the ruling of their Rav), women may never bear arms (except in case of danger to life) and even men should find alternative recreational activities to firing weapons. In fact, I advised the women to seize the opportunity to take a bus tour (only a rabbinic prohibition on Shabbat; see <i>Teshuvot Har Zvi</i> Y.D. 293) and see some of Alaska’s beautiful scenery. Such activity serves to increase one’s love and reverence for Hashem (see Rambam <i>Hilchot Yesodei HaTorah</i> 2:1-2) and it is a far better way to spend one’s valuable time than is firing potentially lethal weapons.
  
  Recording Sports Events Played on Shabbat
  
  Avid sports fans often ask their Rabbanim if it is permitted to program devices before Shabbat that will record sporting events that are played on Shabbat. Shemot 20:10 seems to imply that Hashem requires us to ensure that only our animals, not our utensils, refrain from <i>melachah </i>on Shabbat. Thus, it would appear that Halachah permits us to record sports events on Shabbat, since we do not perform any labor on Shabbat, as only our utensils work.
  Beit Shamai vs. Beit Hillel – <i>Shevitat Keilim</i>
  The question is not that simple, as the Mishnah (Shabbat 17b) records a debate between Beit Shamai and Beit Hillel regarding this issue. Beit Shamai requires us to insure that our utensils refrain from work on Shabbat (<i>shevitat keilim</i>). For example, Beit Shamai forbid setting a trap prior to Shabbat if it will likely catch an animal on Shabbat. Beit Hillel, though, disagree with Beit Shamai’s <i>shevitat keilim</i> principle.
  It would accordingly seem obvious that one may set a recording device to record a television show on Shabbat, since the Halachah follows Beit Hillel in regard to <i>shevitat keilim</i> (Rambam Hilchot Shabbat 3:2). However, Shabbat 18a records a Beraita (a Tannaitic teaching that does not appear in the Mishnah) that forbids placing wheat in a water mill before Shabbat if it will grind the wheat on Shabbat. As we shall see, this may provide a basis to prohibit recording television broadcasts on Shabbat.
  <i>Rabbah</i> vs. Rav Yosef
  Rav Yosef (ad. loc.) asserts that this <i>beraita</i> follows the opinion of Beit Shamai regarding <i>shevitat keilim</i> and thus does not constitute normative Halachah. <i>Rabbah</i>, however, argues that the <i>beraita</i> follows both Beit Hillel and Beit Shamai, since even Beit Hillel would agree that rabbinic law requires us to refrain from permitting our utensils that make very loud noises (such as a water mill) from running on Shabbat. Rashi (ad. loc. s.v. <i>SheY’yitchenu</i>) explains that <i>Rabbah</i>’s concern encompasses two issues. First, the “item grows louder” (<i>avsha milta</i>), and thus arouses suspicions that he set the water mill on Shabbat itself. The second concern is that the loud noise degrades Shabbat. Apparently Rav Yosef shares neither of these concerns.
  The <i>Rishonim</i> debate as to whether Halachah follows <i>Rabbah </i>or Rav Yosef. <i>Tosafot</i> (ad. loc. s.v. <i>VeH’hashta</i>) cite Rabbeinu Tam, who rules in accordance with Rav Yosef’s lenient approach, but <i>Tosafot</i> themselves rule in accordance with <i>Rabbah</i>’s stricter view. <i>Tosafot</i> also cite Rabbeinu Chananeil, who follows <i>Rabbah</i>. Ramban (<i>Milchamot Hashem, Shabbat</i> 6a in the pages of the <i>Rif</i>) rules in accordance with <i>Rabbah</i> as well.
  Rav Yosef Karo (Shulchan Aruch O.C. 252:5), following the <i>Rif</i> (Shabbat 6a-b in the pages of the <i>Rif</i>) and the Rambam (who does not cite this <i>beraita</i> in his <i>Mishneh Torah</i>), rules in accordance with Rav Yosef. Rama (<i>ibid</i>.), however, cites the strict opinion of <i>Tosafot</i> and Rabbeinu Chananeil, who follow <i>Rabbah</i>. The Rama concludes by citing the accepted practice among Ashkenazic Jews to follow the strict opinion except in case of loss. Pri Megadim (ad. loc. <i>Eishel Avraham</i> 21) explains that this means that, essentially, Halachah follows the lenient ruling of Rav Yosef, but in ordinary circumstances we accommodate the strict opinion of <i>Rabbah</i>.
  Air Conditioners and Wall Clocks
  One may ask, then, why Ashkenazic Jews routinely allow their air conditioners to run throughout Shabbat despite the loud noise made by wall units. The answer appears to be based on a subsequent ruling of the Rama (ad. loc.) regarding wall clocks. Rama writes, “It is permitted to set a wall clock before Shabbat, even though it will make a loud sound informing the time of day, since everyone knows it is routinely set beforehand."
  In addition, the wall clocks do not disturb the Shabbat atmosphere, since the need to know the time of day is also a Shabbat need. This stands in stark contrast to a water mill since grinding wheat into flour is certainly not a Shabbat need. Air conditioners are analogous to wall clocks, and thus even Rabbah would permit us to leave them running on Shabbat. The same applies to other noisy appliances that enhance Shabbat such as refrigerators and heaters. Washing machines and dishwashers, though, are analogous to water mills.
  Rav Ovadia Yosef – Running a Laundry Machine on Shabbat
  A ruling of Rav Ovadia Yosef (<i>Teshuvot Yechaveh Da’at</i> 3:18) illustrates how the Rama’s ruling is followed in practice. Israeli soldiers on very brief leave for Shabbat from their bases often arrive home on the last bus before Shabbat and leave on the first bus after Shabbat. Soldiers very much want to wash their uniforms when they visit home. However, their only opportunity is to place the clothes in the washing machine immediately prior to Shabbat, and to let the washing machine run on Shabbat, making noise that arouses suspicions and disturbs the Shabbat atmosphere. Rav Ovadia Yosef rules that this action is permitted even for Ashkenazic Jews, since the Rama codifies the Ashkenazic practice to rely on Rav Yosef in case of great need.
  Rav Moshe Feinstein’s Ruling Regarding Timers
  Based on the classic sources, accordingly, it would seem to be permitted to program a device before Shabbat to record a sporting event that is broadcast on Shabbat. These devices are quiet and are hardly analogous to a water mill. However, a landmark ruling by Rav Moshe Feinstein must be considered before permitting such activity.
  Rav Moshe Feinstein (<i>Teshuvot Igrot Moshe</i> O.C. 4:60) was asked by his grandson whether it is permitted to place uncooked food in an unlit oven before Shabbat and set a timer to turn the oven on an hour before the Shabbat afternoon meal in order to have a hot, freshly cooked meal on Shabbat afternoon. Rav Feinstein responded:
  In my humble opinion, it is obvious that it is forbidden to permit this because, through the use of such automation, one can perform all of the forbidden labor of Shabbat and operate every factory, and there is no greater degradation to Shabbat than this. It is obvious that had this existed in Talmudic times, they would have forbidden this in the same manner in which they forbade asking a non-Jew to perform work on one’s behalf on Shabbat. 162<i class="footnote">Rav Feinstein then considers the possibility that setting a timer is actually included in the prohibition to ask a non-Jew to perform work on Shabbat. He concludes that this is logically true, but even if one is unwilling to include in <i>Chazal</i>'s decree matters (such as this) which they did not include, setting timers is prohibited because of the degradation of Shabbat it causes.</i>
  Thus Rav Feinstein does not permit the use of timers for Shabbat other than for turning on and off lights (for which there was a precedent of having non-Jews turn on and off lights before the advent of electric lights--see Rama O.C. 276:2). Rav Moshe considers the use of timers to do work on Shabbat to constitute a threat to the integrity of Shabbat. Based on this ruling of Rav Feinstein, Rav Aharon Lichtenstein expressed to me (in a personal conversation) his strong opposition to setting a device to record sporting events broadcast on Shabbat. Indeed Rav Hershel Schacter (<i>Mipninei Harav</i> p. 79) cites Rav Yosef Dov Soloveitchik as similarly forbidding such activity.
  However, we must note that Rav J. David Bleich observes (<i>Tradition</i> 35:2:50) that Rav Moshe’s ruling “has not been widely accepted among Halachic decisors”. Indeed, the following <i>poskim </i>allow the use of timers for usage other than lighting: <i>Chazon Ish</i> (O.C. 38:3-4), Rav Shlomo Zalman Auerbach (<i>Teshuvot Minchat Shlomo</i> 1:9 p. 66), Rav Yaakov Breisch (<i>Teshuvot Chelkat Yaakov</i> O.C. 71), Rav Eliezer Waldenberg (<i>Teshuvot Tzitz Eliezer </i>1:20:9) and Rav Ovadia Yosef (<i>Teshuvot Yechaveh Da’at</i> 2:66).
  I noted this point to Rav Lichtenstein, and cited the common practice to set air conditioners on a timer before Shabbat so that they do not operate continuously during Shabbat. Rav Lichtenstein responded with a modified version of Rav Moshe’s ruling, permitting the use of a timer provided that it does not yield a completed product (such as a recorded television program). However, <i>Chazon Ish</i> (<i>ibid</i>.) does permit the use of timers to milk cows on Shabbat, which of course yields a product for use after Shabbat, similar to the recording device. Moreover, many Israeli <i>poskim</i> do not regard timers as a threat to the integrity of Shabbat. Quite to the contrary, many see it as a very important tool that enables the observance of Shabbat in the contemporary State of Israel in a wide variety of situations, such as agriculture and security.
  Conclusion
   On the one hand, it is difficult to assert that it is technically forbidden to record a television program on Shabbat. On the other hand, Rav Lichtenstein insists that it violates the spirit of Shabbat. I suggest a compromise along the lines of the aforementioned ruling of the Rama that one may set timers for Shabbat use only in case of serious need. Recording a business meeting or a college or graduate school lecture qualifies as a serious need in many situations. It is, however, difficult to categorize recording a sporting event as a situation of serious need. Diehard sports enthusiasts need to maintain a reasonable perspective about the relative and true significance of this pastime.
  Postscript
  Even sports enthusiasts should seriously consider the fact that many commercials broadcast on television seriously compromise our value of <i>tzeni’ut (modesty)</i>. We should consider the opinion of those who believe that removing television from one’s home enriches one’s spirituality and overall quality of life.
  
  Nezek Done while Playing Sports
  
  Often when playing sports players damage other player’s property such as eyeglasses or even bodily damage (broken bones etc.) The Mishnah (Bava Kama 26a) teaches that “<i>adam muad l’olam, bein shogeig bein meizid</i>”, a person is always liable for the damage he causes, whether they were done deliberately or even by mistake. Does this principle apply to <i>nezek</i> (damage) done while playing sports?
  <i>Oness </i>– <i>Tosafot</i> vs. Ramban
  The first question we must address is whether the Mishnah’s statement includes <i>nezek</i> done <i>b’oness</i> (circumstances beyond one’s control). This question is the subject of a celebrated debate between the Ramban and <i>Tosafot</i>. <i>Tosafot</i> (Bava Kama 27b s.v. <i>U’Shmuel</i>) believe that one is not obligated for <i>nezek</i> if done <i>b’oness gamur</i>, the situation was entirely beyond one’s control. They cite as proof the Talmud Yerushalmi which states that if one person went to sleep and a second individual subsequently lied down next to him and the first individual damaged the second while sleeping, the first individual is excused from payment.
  The Ramban (Bava Metzia 82b s.v. <i>ve’ata </i><i>Rabi Yehudah</i>) disagrees and rules that one is obligated to repay damage one causes even if the situation is totally beyond one’s control. Ramban argues that the case of the Talmud Yerushalmi differs because the second person acted irresponsibly by lying down next to a sleeping person. Thus the first person is not excused due to <i>oness gamur</i>. Rather, he is excused due to the poor choice made by the one who suffered the damage.
  This dispute does not seem to resolve the issue in regards to sports. One the one hand, the damage is not done in a manner defined as <i>oness gamur</i>. One the other hand, the one who is damaged played a role in creating the damage by agreeing to play the game. We must look to another source to resolve our issue.
  <i>Tosafot</i> – Jousting
  The Mishnah (Sukkah 45a) states that on the last day of Sukkot, people in the Beit HaMikdash played a game in which they would grab <i>lulavim</i> from children. This is not considered theft since the children knew that people would play this game. This is comparable to “stealing” the basketball from one’s opponent. This is not considered theft since it is understood that this is how the game is played.
  <i>Tosafot</i> (ad. loc. s.v. <i>Mee’yad</i>) write:
  We may learn from this that those young people who ride horses towards a groom and they fight each other (i.e., jousting; recall that the <i>Baalei HaTosafot</i> lived during the Middle Ages) and in the process tear the other party’s clothes or damage the other party’s horse, that they are excused from damages since this is a common practice in order to enhance the rejoicing at a wedding party.
  When one agrees to joust they understand the risks involved and thus implicitly is <i>mocheil</i> (waives the right to sue for) damages done to him. The Rama (C.M. 378:9) rules in accordance with <i>Tosafot</i> without any dissent from the commentators. One opinion cited by the Rama applies this principle even to damage done while celebrating on Purim (O.C. 695:2). We should note, though, that the <i>Aruch Hashulchan</i> (O.C. 695:10) records that the custom is no longer to celebrate so wildly to the extent that damage is an expected event.
  The Magen Avraham (695:7) and Mishnah Berurah (695:14) exclude from this exemption, however, damage that was done deliberately. This is similar (<i>l’havdil</i>) to the policy of America’s National Basketball Association (NBA) which exempts damage done by players to each other in the normal course of play (including ordinary “fouls”, violation of basketball rules) but obligates a player to pay for damage done in the case of a “flagrant foul”, where it appears that he had deliberate intention to harm the other player.
  Damage Done to Another’s Body – The <i>Knesset Hagedolah</i> vs. the <i>Agudah</i>
  The Magen Avraham (<i>ibid</i>.) cites a difference of opinion between the <i>Knesset Hagedolah</i> and the <i>Agudah</i> as to whether <i>Tosafot</i>’s exemption applies even to damage done to the other person’s body. The reasoning for the <i>Kenesset Hagedolah</i>’s obligating one for such damage seems straightforward. The Mishnah (Bava Kama 92a) states
  If one says to another ‘blind my eye’ ‘remove my arm’, ‘break my hand’ and the latter complies with the former’s request, he is responsible for the damage even if the victim stipulated in advance that the damager would be excused from compensating the other party. On the other hand, if one instructs another ‘tear my clothes’ or ‘break my jug’ and the latter complies, he must pay damages; however, he is excused if the former stipulated in advance that the latter would be exempt from the consequences of this action.
  The reason for the Mishnah’s distinction between property and personal damage is straightforward. One owns his property but not his body. The body belongs to <i>Hashem</i>. Thus, one may be <i>mocheil </i>damage done to one’s property but not to one’s body. Accordingly, the Kenesset HaGedolah rules that one may be <i>mocheil</i> damage done to one’s property while playing sports but not to damage done to one’s body.
  The <i>Agudah</i>’s ruling, on the other hand, is similar to a ruling of the <i>Teshuvot Harosh</i> cited by the <i>Tur </i>(C.M. 421; and codified in the Shulchan Aruch C.M. 421:5):
  Two individuals wrestled together and one wrestled the other to the ground, fell on him and blinded the eye of the one beneath him in the course of falling on him. The wrestler is exempt from paying compensation since they consented to wrestle and the damager did not intend to injure the other. It is known that when two people wrestle each one’s primary objective is to bring his opponent to the ground. It is impossible for players to be precise and wrestle the other to the ground gently so as not to hurt his oponent, since they are playing with all their might and each one intends to wrestle the other to the ground. The players are Mocheil each other and it is with this mutual intention that they wrestle.
  The Rosh is difficult to understand if one believes that one does not own his body and thus does not enjoy the right to waive claims against damage done to his body. Yakir Forman explains that the Rosh does not subscribe to this approach. Indeed, the Rosh (cited by the Tur, ibid.) states that if one explicitly excuses another from payment for damages the latter does to the former's body, the latter is not obligated to pay for such damages.163<i class="footnote">Although this opinion seems to contradict the aforementioned Mishnah (Bava Kama 92a), the Rosh explains that the Mishnah obligates the damager despite the damaged one's mechilah only in the following case: one says to another, 'blind my eye,' 'remove my eye,' or 'break my hand.' The latter asks if he will be exempt from damages upon doing so, and the former answers, 'yes.' In this case, since it is extremely unlikely that a person will allow damage to his or her body, we assume that the former's 'yes' was sarcastic and that he was not actually mocheil (on the other hand, if the two were discussing monetary damage, which a person is more likely to allow, we do not make this assumption). If, however, one specifically instructs another, “Blind my eye, and you will not be accountable for damages,” we cannot make this assumption, so the damager is not obligated to pay for damages.</i> Thus, the Rosh presumably believes that the wrestlers' implicit mutual <i>mechilah</i> is analogous to explicit <i>mechilah</i>, since it is so clear that damage might occur during the match.
  The <i>Sema</i> (421:10) provides another explanation of the Rosh’s ruling, in line with the view that one does not own his body. He explains “They were both equal participants in the damage”. In other words the exemption from compensation does not emerge merely from <i>mechilah</i>. It is also because the one who lost his eye was a willing participant in the damage he sustained. This is analogous to the aforementioned situation where one lies down next to one who sleeps and is damaged where even the Ramban exempts the one who did damage because of the victim's participation.
  The dispute between the <i>Kenesset Hagedolah</i> and the <i>Agudah</i> remains unresolved. The Mishnah Berurah (695:13) rules that the exemption applies even to bodily damage (although he cites the <i>Bach</i> who writes that the custom is to be <i>mocheil</i> only small scale damage but not large scale damage) but the <i>Aruch Hashulchan</i> (O.C. 695:10) rules in accordance with the <i>Knesset Hagedolah</i> that one is obligated to pay for damage to the body (but does not cite the <i>Bach</i>’s distinction between small and large scale damage). Thus, a <i>beit din</i> would not obligate one to pay in such circumstances since the great principle regarding monetary disputes is <i>hamotzi meichaveiro alav haRa’ayah</i>, the burden of proof rests upon the one who seeks payment (Bava Kama 46a). However, a <i>beit din</i> may rule that some payment is required if the parties agreed to a <i>pesharah</i> (equity and compromise) ruling and if the <i>beit din</i> believes that the circumstances warrant some payment (see <i>Aruch Hashulchan</i> C.M. 378:21).
  Fouls - Rav Dov Lior vs. Rav Mordechai Willig
  Rav Dov Lior (<i>Teshuvot Devar Chevron</i> 101) records a situation that occurred while people were playing basketball in Kiryat Arba. One individual broke the other’s glasses while fouling the one wearing the glasses. Rav Lior, the Rav of Kiryat Arba who is renowned as a great expert in Halachah, ruled that the player must pay for the broken glasses. Rav Lior writes “one is <i>mocheil </i>only in regards when the other party conforms to the rules” but not when the other party fouls his opponent and does not abide by the rules of the game.
  I related this ruling to Rav Mordechai Willig (who in addition to being an outstanding Torah scholar and halachic authority also occasionally plays basketball during the summers at the Camp Morasha Kollel) who reacted with shock to this ruling. Rav Willig remarked that Rav Lior obviously must have never played basketball. Anyone who plays basketball knows that fouling is part of the game and thus when one plays basketball he consents to being fouled. One may limit this, of course, to moderate or reasonable fouling and not to “flagrant fouls” to which there is no <i>mechilah</i>.
  In addition, anyone who wears eyeglasses knows (or should know) that wearing ordinary glasses while playing basketball is foolish since they can easily break in the normal course of playing, even without fouling. One who wears glasses while playing basketball is similar to the one who sleeps next to another sleeping individual who in the words of the Ramban “Acted negligently regarding himself”. Thus there is no justification to obligate the other player to compensate him for breaking his glasses. A prudent individual either removes his eyeglasses before playing sports or wears special eyeglasses designed for those playing sports.
  This ruling underscores the importance of <i>dayanim’s</i> being familiar with not only with the Halachah but also the <i>metzius</i> (realities) of the situation they are adjudicating. The <i>Aruch Hashulchan</i> (C.M. 15:6) accentuates this point as well as does the <i>Chazon Ish</i> who famously remarked that most mistakes in Halachah are made when the <i>posek</i> does not adequately comprehend the Metzius involved in the situation.
  A Case at Torah Academy of Bergen County
  In 2010, two Torah Academy of Bergen County students requested that I adjudicate a dispute related to the issues discussed above. Young man number one was playing basketball by himself when his friend, young man number two arrived and asked if he could join him in a competitive game of basketball. Young man number one replied that he did not want to engage in a game of basketball since he was wearing brand new eyeglasses and he did not want them to break. Young man number two then pressured his friend to join him in a competitive game and youngster number one reluctantly acquiesced. However, young man number one stipulated before the game began that to avoid breaking his new eyeglasses they would play “not aggressively”.
  Not surprisingly, in the course of playing, young man number two while “on defense” tried to “steal” the basketball and caused the eyeglasses to fall and chip to the extent that the eyeglasses were only marginally usable (as determined by the <i>beit din</i>). Young man number one claimed that his friend had played aggressively in violation of their agreement and thus was obligated to compensate him for the chipped eyeglasses. Young man number two disputed this claim arguing that he did not play aggressively and was thus not obligated to pay.
  Three Procedural Matters
   When I realized that the matter was not a simple one and involved a significant amount of money, I asked two Torah Academy of Beregn County colleagues to join me to form a <i>beit din</i> in line with the Mishnah’s (Avot 4:8) recommendation (see <i>Tosafot</i>, Sanhedrin 5a s.v. <i>Kegon Ana</i> and Shulchan Aruch C.M. 3:3) not to sit as a single judge.
  Experience teaches the importance of following the Mishnah’s advice to avoid adjudicating a financial dispute without the benefit of the partnership of two other competent rabbinical colleagues. The complexity involved in resolving monetary disputes (see Mishnah Bava Batra 175b) requires the grappling and combined wisdom and insight of three Torah scholars to arrive at a proper halachic decision. In addition, as anyone who serves as a rabbinic judge knows, passions often run very high when a financial matters are disputed and the losing party will be more likely to accept a ruling of a three <i>dayan</i> panel than a decision of an individual Rav. The rabbis on the panel also spare themselves the enmity of the parties since a three member panel provides for the privacy of each rabbi since the Gemara (Sanhedrin 31a) forbids revealing the opinion of each <i>dayan</i>.
  As a matter of proper protocol I revealed at the outset of the adjudication that I am a distant relative of one of the litigants. Although this relationship was distant to the extent that I was not disqualified to serve as a <i>dayan</i> in this case, I felt it best to disclose any potential conflict of interest in line with the Shulchan Aruch’s (C.M. 7:7-12) exhortation for <i>dayanim</i> to meticulously avoid any conflict of interest. Indeed, the Beth Din of America requires its <i>dayanim</i> to list any potential conflict before the start of any hearing.
  We should clarify that, upon the urging of the <i>beit din</i>, the two litigants agreed that the <i>dayanim</i> should adjudicate the dispute based on <i>pesharah kerovah l’din</i>, which is a blend of <i>pesharah</i>, compromise or equity and <i>din</i>, strict Halachah. Indeed, the Shulchan Aruch (C.M. 12:2 and 20) urges <i>dayanim </i>to avoid resolving cases solely on the basis of strict Halachah (see Bava Metzia 30b).
  Applying <i>Tosafot</i>’s Jousting Case
  The aforementioned ruling of <i>Tosafot</i> and the Rama, that one who damages his opponent's possessions while jousting is not obligated to pay for damages because of implicit <i>mechilah,</i> seems to suggest that youngster number two would not be obligated to pay for the damage to youngster number one's eyeglasses. However, in this case, youngster number one requested that the two play “not aggressively.” This appears to be a <i>mesirat moda’ah</i> (disclaimer) that he was not <i>mocheil</i> damage to his eyeglasses caused by “aggressive” play.
  However, the stipulation to play not aggressively was vague. When the disputants reenacted the incident in the presence of the <i>beit din</i> it was difficult to determine whether young man number two violated the agreement. Since the rabbis who sat on this <i>beit din</i> (each of whom had extensive experience playing basketball when they were youngsters) determined that it was impossible to decide if young man number two played aggressively, strict Halachah could not obligate him to pay for the damage. A major principle of deciding monetary issues is “<i>hamotzi meichaveiro alav hara’ayah</i>” the burden of proof falls upon the one who demands payment (Bava Kama 46a). Moreover, this scenario is reminiscent of the aforementioned <i>Teshuvot Harosh</i> cited by the Tur (C.M. 421) who wrote about competitive sports “it is impossible for a player to be precise”. Thus, it is unreasonable, once the boys agreed to play competitively, to expect each other to be precise in his playing non-aggressively. Therefore, strict Halachah would not obligate youngster number two to compensate his friend for the chipped eyeglasses.
  <i>Pesharah Kerovah L’Din</i>
  However, the young men had agreed to adjudicate their dispute in accordance with <i>pesharah kerovah l’din</i> as we noted earlier. The Beth Din of America in its rules and proceedings (available at www.bethdin.org) explains <i>pesharah kerovah l’din:</i>
  Compromise or settlement related to Jewish law principles (<i>p'shara krova l'din</i>) is a process in which the relative equities of the party's claims are considered in determining the award. For example, in Jewish law (<i>din</i>), the party that proves the "truthfulness” of its case "more likely than not," as well as proving the Jewish law basis for its entitlement, is qualified to recover 100% of the amount sought, whereas in compromise or settlement related to Jewish law principles (<i>p'shara krova l'din</i>) such a party would not necessarily recover 100% of the amount sought, <u>depending on that party's conduct throughout the matter under dispute</u> (emphasis added). So too, in a case where neither party proves the "truthfulness" of its case "more likely than not," or does not prove the Jewish law basis for its entitlement, Jewish law (<i>din</i>) would not provide for an award, whereas compromise or settlement related to Jewish law principles (<i>p'shara krova l'din</i>) could provide for an award in that case.
  Moreover, the preamble to the Beth Din of America’s Rules and Procedures state:
  These Rules of Procedure are designed to provide for a process of dispute resolution in a Beth Din which are in consonance with the demands of Jewish law that one diligently pursue justice, while also recognizing the values of peace and compromise.
  In addition, in a document signed by leading (especially in the area of financial adjudication) halachic authorities of Israel’s Religious Zionist community such as Rav Yaakov Ariel, Rav Ratzon Arussi and Rav Dov Lior the principles of <i>pesharah kerovah l’din</i> are articulated (<i>Techumin</i> 30:338). In a footnote they cite as one of their principles a statement of Rav Avraham Yitzchak HaKohen Kook (<i>Teshuvot Orach Mishpat</i> C.M. 1) “one of the considerations to prefer <i>pesharah</i> is in circumstances where ‘the Din contradicts one’s sense of fairness (“<i>yosher hasichli</i>”) in light of the circumstances of the specific situation being adjudicated”. (See Gray Matter 2:193-200 for a further explanation of the concept of <i>pesharah</i>.)
  Application to our Dispute
  Although strictly speaking young man number two is not obligated to pay, nonetheless he does share some of the blame for this mishap with the glasses. Indeed, young man number one imprudently agreed to play not realizing the imprecision of their agreement and not recognizing that eyeglasses can be broken while playing competitively even if the agreement was to play “not aggressively”. However, young man number two did not act properly by pressuring his friend to play competitively when he did not truly wish to do so.
  The prohibition of <i>lo tachmod</i> (Shemot 20:14) forbids one to pressure another to sell or give him an item the former desires (Shulchan Aruch C.M. 359:10). While young man number probably did not covet a specific item, the prohibition of <i>lo tachmod </i>nonetheless teaches that it is wrong to pressure someone to do something he does not wish to do. Indeed, the Shulchan Aruch (E H. 154:21) does not permit pressuring a husband to give his wife a <i>get</i> unless the husband’s improper behavior justifies such pressure (see <i>Gray Matter</i> 1:19 for further discussion of this issue).
  Accordingly, the <i>beit din</i> considered the “party's conduct throughout the matter under dispute” and determined that “<i>yosher hasichli</i>” demanded that youngster number two partially compensate his friend for the chipped eyeglasses. The <i>beit din</i> followed the approach of Rav Yaakov Reischer (<i>Teshuvot Shevut Yaakov</i> 2:145, cited in Pitchei Teshuvah C.M. 12:3), who writes:
  The <i>Dayanim</i> crafting the <i>Pesharah</i> are empowered to act in accordance with the essence of the matter in light of their perception of the issue with the goal of reconciling the parties without favoring one party over another. In this case where the parties agreed to <i>Pesharah Kerovah L’Din</i> it appears to me that reducing a third of the obligation is considered to be <i>Kerovah L’Din.</i>
  In our case the erstwhile friends had grown resentful of each other. Young man number one was upset that his schoolmate did not assume responsibility for his misjudgment and young man number two resented the fact that his friend was shifting all of the blame to him. Thus, the <i>beit din</i> decided that both equity and compromise called for young man number two to pay a third of the cost to repair the eyeglasses. The <i>beit din</i> in turn required young man number one to engage in due diligence in finding the lowest price for competent repair of his eyeglasses. After comparing prices, he found someone who could make the repair for one hundred dollars and the <i>beit din</i> thereupon ordered young man number two to pay thirty three dollars.
  Indeed, although the Rama (C.M. 378:9) codifies the aforementioned <i>Tosafot</i> exempting jousters from tort liability without any dissent from the commentators, the <i>Aruch Hashulchan</i> C.M. 378:21 adds “if it appears to the Beit Din that they need to take preventative action to avoid improper behavior, they are authorized to obligate the <i>mazik</i> [the one who caused the damage] because many problems can arise”. The <i>beit din</i>’s ruling is in harmony with the <i>Aruch Hashulchan</i> that <i>Tosafot</i>’s “sports exemption” is not absolute.
  Conclusion
  One who damages another while playing sports is, generally speaking, excused from paying damages. There may be exceptions and thus the question should be posed to a Rav who is expert in Halachah and familiar with sports.
  In the case at Torah Academy of Bergen County, the <i>beit din</i>, by compromising that the damager should pay one-third of the value of the damage he caused, achieved its goal of meeting the demands of Halachah to diligently pursue justice, while also recognizing the values of peace and compromise.
  Although at first a bit resistant to the <i>beit din</i>’s ruling, the two schoolmates accepted the decision. By facilitating both sides assuming partial liability for the mishap, the two schoolmates reconciled and resumed their friendship.
  Postscript
  I thank Rav Aharon Zev Feigenbaum whose outstanding article on this topic (Beit Yitzchak 5767 pp. 260-265) was helpful in the preparation of this chapter.
  
  The Championship Hockey Glove Dispute
  
  The Case
  The Torah Academy of Bergen County’s varsity hockey team won the New York metropolitan floor hockey league championship in 2007 and 2008. The glove used by the goalie in this game is a coveted item that remains within the hockey team as a memento that is passed from one graduating class to the next. In March 2009 as the hockey season was drawing to a close, at one of the practices one student (“glove caller”) “called” (reserved) the right to purchase the goalie glove from the graduating goalie (“goalie”) at the end of the season. Towards the end of the summer of 2009 when “goalie” was at summer camp in Pennsylvania, he offered to sell the goalie glove to another member of the Torah Academy hockey team. This student reminded “goalie” that “glove caller” had already “called” the right to purchase the hockey glove. “Goalie” replied not to be concerned with the “call” and subsequently sold the glove to this student who was with him in camp (“glove purchaser”).
  In September of 2009 when “glove caller” discovered that the “goalie” sold the coveted glove to “glove purchaser” he objected to his “call’s” not being respected. The two students came to me to resolve the dispute. “Glove caller” claimed the right to purchase the glove from “glove purchaser” while “glove purchaser” questioned that right.
  We must resolve three issues in this case: Did “glove caller” become the owner of the glove when he “called” the glove? Did “goalie” act unethically by not honoring the “call”? Did “glove purchaser” act unethically by purchasing the glove when someone else had already called the glove.
  Transfer of Ownership of the Glove - <i>Kinyan</i>
  The Mishnah (Bava Metzia 4:2) sets forth the rules for when ownership is formally transferred when a movable item is sold:
  If one has pulled the good towards him (<i>meshichah</i>) but did not yet pay the money, [ownership of the good has been transferred – a <i>kinyan</i> has been made and] neither side may renege on the deal. If he gave the money but did not yet perform <i>meshichah </i>on the item [ownership of the good has not been transferred and] either side may go back on the agreement. However, [the sages] said that the One who punished (<i>Mi She’para</i>) the <i>Dor Hamabul</i> (generation of the flood) and the generation of the dispersion (after building the tower of Babel) will punish one who does not abide by his commitments.
  This Mishnah teaches that a <i>kinyan</i> is made on movable items when one pulls the item towards him and that if one reneges on a deal after the money has been paid he is considered to have acted unethically and receives a “<i>mi shepara</i>”. In our case, “glove caller” had neither taken possession of the glove nor had given money to “goalie” and thus he is not considered to be the owner of the glove by virtue of the call and “goalie” does not incur a “<i>mi shepara</i>”.
  <i>Kinyan Situmta</i> – Common Commercial Practice
  Although no <i>kinyan</i> was made by traditional halachic standards we must still explore whether a <i>kinyan </i>was made by virtue of the customary commercial practices of the community. The Gemara (Bava Metzia 74a) discusses a common practice of wine sellers to place a seal (<i>situmta</i>) on the barrels of wine that had been promised to a specific buyer. The Gemara records a debate regarding one who placed a seal on a barrel but then wanted to sell it to another buyer. One opinion is that placing the seal actually affects a transfer of ownership and is the equivalent of <i>meshichah</i> and the second opinion disagrees and argues that selling to another after placing a seal on the barrel rises only to the level of incurring a “<i>mi shepara</i>”. The Gemara concludes that placing a seal does not affect a <i>kinyan</i> (but rises to the level of incurring a “<i>mi shepara”</i>) but in a place where the commonly accepted practice is to regard the placing of the <i>situmta</i> as the equivalent of <i>meshichah</i>, simply placing the seal transfers the title.
  The conclusion of the Gemara is codified by the Shulchan Aruch (C.M. 201:1). The Shulchan Aruch proceeds (<i>ibid.</i> no. 2) to articulate a principle of major importance:
  And so too any act which merchants commonly accept as an act which signifies formal transfer of title such as giving of a coin of minimal value or a handshake or handing the keys to the purchaser and anything similar to this is recognized by the Halachah as a legitimate <i>kinyan</i> even though these acts are not mentioned n the Mishnah and Gemara as a valid means of effecting a <i>kinyan</i>.
  Pitchei Teshuvah (ad. loc. no. 1) cites opinions (<i>Teshuvot Chatam Sofer</i> C.M. 12) that even regard such a <i>kinyan</i>, known as <i>kinyan situmta</i> to have validity on a Torah level and therefore is commonly employed by community rabbis as one of the means of transferring title of chametz to a non-Jew before Pesach (<i>Aruch Hashulchan</i>, O.C. 348:21 and 28). <i>Teshuvot Devar Avraham</i> (1:1) bolsters the opinion of the <i>Chatam Sofer</i> in a celebrated responsum. He argues that even <i>kinyan suddar</i>, a common halachic act (such as at a wedding, <i>din Torah</i> and sale of chametz) where the beneficiary of an obligation hands the one who obligates himself a utensil of some value, even though it will be returned, as means to present symbolic consideration to consummate a deal, is an example of a <i>kinyan </i>recognized by Halachah which emerged from common practice (as indicated in <i>Rut </i>4:7 , which notes about this type of <i>kinyan</i> - “<i>v’zot lifnim b’Yisrael</i>”) and not a <i>kinyan</i> originally introduced by the Torah or <i>Chazal</i>.
  Accordingly, we must investigate as to whether “calling” an item is an accepted practice among Modern Orthodox adolescents to transfer title of an item or at least to impose a “<i>mi shepara”</i> on those who do not respect a call. Upon investigation it emerged that no such <i>minhag</i> exists and that at most a “call” signifies reserving the right to negotiate the purchase of the item. Proof to this conclusion is that if “glove caller” would have offered what “goalie” considered an unreasonably low price, “goalie” would be under no legal or moral obligation to sell the glove to “glove caller”. Thus, it is clear that “glove caller” did not obtain ownership of the glove upon “calling it,” nor did “goalie” incur a <i>mi shepara</i> by selling the glove to someone else.
  <i>Mechusarei Amanah</i>
  Even though “goalie” is not guilty of theft and does not deserve a “<i>mi shepara</i>”, nonetheless it is possible that <i>Chazal</i> would regard his actions as <i>mechusarei amanah</i>, lacking in good faith by not honoring the “call”. The Shulchan Aruch (C.M. 204:7) codifies the opinion of Rabi Yochanan (Bava Metzia 49a) that one should honor his verbal commitment even though a <i>kinyan</i> has not been made and even if money has not yet been exchanged. Although one who does not honor his merely verbal commitments does not receive a “<i>mi shepara”</i>, <i>Chazal</i> nonetheless disapprove of his behavior - “<i>ein ruach chachamim nochah heimenu</i>” the spirit of the sages is not pleased with him.
  However, one may defend the actions of “goalie”. First, the Rama (C.M. 204:11) cites an opinion (the <i>Tur</i>, C.M. 204, citing the <i>Ba'al HaMa'or</i>) that permits one to deviate from a verbal commitment if the second offer is higher. (If money was exchanged, on the other hand, <i>Chazal</i> disapprove of withdrawing from a deal even if one received a more attractive offer). However, this opinion (the <i>Tur</i>, C.M. 204 citing the <i>Ba’al Hama’or</i>) permits retracting one’s verbal commitment in case of loss, as long as no money was yet exchanged.
  Although Rama concludes that one should not follow this opinion, the Shach (ad. loc. no. 8) and <i>Netivot</i> (ad. loc. <i>chiddushim </i>no. 10) cite the <i>Bach</i> who is uncertain about this matter. <i>Aruch Hashulchan</i> (C.M. 204:8) concludes that baseline Halachah permits retraction in case of loss, although it is considered to be pious behavior to refrain from retracting even in case of loss.
  In our case, “glove purchaser” was a more attractive buyer to “goalie” since they were together in camp (the sale was made at the end of the camp season when “goalie” no longer needed the glove), unlike “glove caller” who was not. Moreover, “goalie” lived in Staten Island and soon after the end of camp would be leaving for a year of Torah learning in Eretz Yisrael, while “glove caller” lived in Teaneck and thus a far less convenient purchaser (the sale was made at the end of the camp season when “goalie” no longer needed the glove). Moreover, by honoring the “call”, “goalie” would be compromising his leverage in negotiations if he passes over a willing buyer in the expectation that “glove caller” will offer a satisfactory price for the glove. Thus, baseline Halachah certainly permits “goalie” not to honor the call in order to seize the opportunity to sell the glove at a reasonable price, since “glove purchaser” is a more attractive buyer than “glove caller”.
  Furthermore, <i>Teshuvot Sheivet Halevi</i> (4:205) which is cited approvingly by <i>Pitchei Choshen</i> (7:1:3 n. 6) suggests that all agree that if there is a highly significant difference in the offers of the original and second potential buyers then even the Rama would agree that one may retract his verbal pledge. In our case it is fair to say that considering the circumstances “glove purchaser” was a far more attractive buyer than “glove caller” and thus “goalie’s” behavior need not be deemed impious.
  Interestingly, <i>Pitchei Choshen</i> (7:1:3) rules that if the deal was not concluded there is no obligation to honor one’s word, since a true commitment had yet to be completed. Accordingly, it is clear that “goalie” is not considered <i>mechusarei amanah</i>. However, regarding this point common practice among Modern Orthodox adolescents becomes relevant. Disregarding a “call” to the extent that one does not even enter negotiations with the one who made the call is considered by youngsters to be <i>mechusarei amanah</i> even though no agreement on a purchase price has been reached, since he deviates from common practice.
  Nonetheless we can defend “goalie’s” behavior. The practice of honoring a call does not apply when there is such a great disparity between the two potential buyers. Moreover, the tradition at Torah Academy is for the graduating goalie that possesses the championship goalie glove to sell the glove to the goalie of the incoming twelfth grade. “Glove purchaser” was an incoming twelfth grader and “glove caller” was an incoming eleventh grader. Thus, “goalie” was entitled to disregard a “call” that was not in harmony with previously established practice. Indeed, “goalie” had not made a commitment to honor the “call” as he merely remained silent when the call was made. Thus, he made no verbal commitment to allow “glove caller” to have the right to be the first to enter into negotiations to purchase the glove. The absence of consent was due to the deviation from established hockey team protocol.
  <i>Ani Hamehapeich Bechararah</i>
  Although “goalie” did not act unethically by disregarding the “call,” is it possible that “glove purchaser” acted unethically by purchasing the glove despite his knowledge that “glove caller” intended to do so. In order to determine if this is the case, we must investigate the rules of “<i>ani hamehapeich bechararah</i>.”
  Halachah demands ethical competition in the marketplace. The Gemara (Kiddushin 59b) teaches “<i>ani hamehapeich bechararah uva acheir venatlah heimenu nikra rasha</i>”, one who intrudes on an impoverished person chasing a crust of bread is regarded as an evildoer. The Shulchan Aruch (C.M. 237:1) codifies this law prohibiting interference with another’s efforts to acquire an item. What are the implications of being classified as an evildoer? <i>Sema</i> (C.M. 237:1) explains that it is announced in shul that he is has acted in an evil manner. Thus, communal pressure is exerted to persuade the one who interfered to rectify the wrong he perpetrated.
   This Halachah has manifold applications to the contemporary marketplace. For example, intruding on another’s attempt to acquire a specific previously owned automobile might be included in this prohibition. Another potential application of prohibited interference is intruding on another’s pursuit of a particular plot of land, a case already discussed by the Gemara (<i>ibid</i>.). Rav Moshe Feinstein<i> (Teshuvot Igrot Moshe</i>
  E.H.1:91) even applies this prohibition to intruding on another’s pursuit of a spouse (if the couple has already agreed to marry). Thus “glove purchaser” seems to have violated this prohibition by intruding on “glove caller’s” pursuit of the championship goalie glove.
  The Dispute between Rashi and Rabbeinu Tam
   However, the precise parameters of this rule are subject to a great deal of debate among <i>Rishonim</i> and <i>Acharonim.</i> The most fundamental debate regarding this issue is the debate between Rashi (Kiddushin 59a s.v. <i>Ani</i>) and Rabbeinu Tam.(cited in <i>Tosafot,</i> Kiddushin 59a s.v<i>. Ani</i> ) Rashi interprets <i>ani hamehapeich bechararah</i> broadly and prohibits interfering with someone acquiring an item even if it is not readily available elsewhere for the same price (such as an ownerless item). Rabbeinu Tam, on the other hand, interprets the rule in a far narrower manner, ruling that it applies only to a situation where the item is not easily obtainable elsewhere. He believes that it is unethical to intefere with another's pursuit of an item only in a situation in which one could easily obtain the item elsewhere for the same price.
   Rashi’s opinion may be based on the Torah’s dictum (Vayikra 19:18) to love one’s neighbor as oneself. The Gemara (Shabbat 31a) extends this principle to forbid doing to others that which one would not like done to oneself. Thus, since one would not want to be deprived of the opportunity to buy an object he pursues, one should not put another in that situation. <i>Kesef Kedoshim</i> (to Shulchan Aruch ad. loc.) explains that according to Rabbeinu Tam’s view, even though the Torah commands to love one’s neighbor as one loves himself, the Gemara (Bava Metzia 62a) states that one’s own interests enjoy priority above another’s interests. Kesef Kedoshim thus explains that the dictum to avoid doing to others what one would not like done to himself applies only when one does not sustain a loss. Thus, one may not intrude on another’s efforts to obtain an item that he can easily acquire elsewhere for the same price, as Rabbeinu Tam explains, “Let him go and obtain it elsewhere.” However, with regard to an item not readily available elsewhere for the same price, explains Rabbeinu Tam, “There is no prohibition, for if he (the intruder) does not obtain the specific item, he will not find another one.”
  Although the Shulchan Aruch (<i>ibid</i>.)<i> </i>presents both views, the Rama rules in accordance with the opinion of Rabbeinu Tam. Later authorities (including the <i>Aruch Hashulchan</i> C.M. 237:1) conclude that Halachah follows Rabbeinu Tam’s opinion. Indeed, <i>Maharshal </i>(<i>Teshuvot </i>no. 36)<i> </i>observes that the majority of the Talmudic commentaries subscribe to the approach of Rabbeinu Tam. Nonetheless, pious individuals are advised to follow the stricter opinion of Rashi (Shulchan Aruch <i>Harav Hilchot Hefkeir V’hasagat Gevul</i> 10 and <i>Teshuvot Igrot Moshe </i>E.H.1:91).
  “Glove caller” seems to have acted improperly even according to Rabbeinu Tam since goalie gloves are readily available in any sporting goods store. However, the item in question was not an ordinary goalie glove but the glove that was a legacy from the two Torah Academy championship seasons. Thus, “glove purchaser” acted properly only according to Rabbeinu Tam and thus his action while not technically prohibited nonetheless would seem to be regarded as impious behavior.
  The Stage of the Negotiations
  Nonetheless, there are two potential considerations to further defend the actions of “glove purchaser”. Halachic authorities differ as to when specifically in the purchasing process does the prohibition commence. The Rama (<i>ibid</i>.)<i> </i>rules that it starts only when the parties have agreed upon the terms of the deal and only a formal act of acquisition (<i>kinyan</i>) to make the sale legally binding is lacking. <i>Sema</i> (237:7)<i> </i>explains Rama’s ruling as a means of protecting the interest of the seller. If another buyer would be forbidden to interfere before all terms are settled, the seller would be trapped into accepting the terms of any offer made to him, if another buyer would be forbidden to interfere.
  <i>Prishah</i> (237:11), however, records that the custom has emerged to regard the interference as improper even if it occurred at an earlier stage in the negotiations. <i>Prishah </i>writes, “When one individual comes to acquire an item and the terms of the purchase are in dispute, and the two parties are in the midst of the negotiations, and had a third party not interfered the deal would have been completed – this constitutes improper interference.” The <i>Aruch Hashulchan</i> (<i>ibid</i>.) also approvingly notes this custom, but limits it to a purchase in a market where there are many sellers and buyers. However, he rules in accordance with the Rama regarding a sales negotiation that is conducted outside of such an environment. The <i>Aruch Hashulchan</i>’s approach view seems to be based on the aforementioned approach of Rabbeinu<i> </i>Tam to restrict the prohibition to interfere to a situation in which no other similar item is available. Accordingly, in a marketplace where there are ample opportunities for purchases, there is no legitimate reason to intrude on someone else’s negotiation. However, outside of such a circumstance, another such item might not be available, and one may thus interfere with the negotiation as long as it has not been concluded.
   Since, in our case, the negotiation took place outside of the marketplace and the item in question was not readily available elsewere, the <i>Aruch HaShulchan</i>, based on Rabbeinu Tam's ruling, would permit “glove purchaser's” interference. However, according to Rashi “glove purchaser’s” interference is unjustified. Thus, “glove purchaser's” behavior seems to be impious behavior, even though “glove caller” and “goalie” had not yet completed negotiations. Indeed, <i>Pitchei Choshen</i> (4:9:16) rules that proper ethical behavior is to refrain from interfering with an ongoing negotiations in all circumstances. This is especially so since it is customary among Modern Orthodox adolescents not to interfere when someone “calls” an item. Thus, the Rama’s ruling does not adequately defend the behavior of “glove purchaser”.
  Seller’s Preference
  A more effective defense of “glove purchaser” is that he is not at all guilty of violating <i>ani hamehapeich bechararah</i> even according to Rashi since he did not interfere with the purchase. Recall that it was “goalie” who initiated the negotiation with “glove purchaser” and that we concluded in last week’s issue that he was completely entitled to do so. Indeed, <i>Teshuvot Avnei Neizer</i> (C.M. 17) writes that the prohibition of <i>ani hamehapeich bechararah</i> applies only to the buyer and not to the seller and <i>Pitchei Choshen</i> (4:9 n. 32) records that the <i>Chazon Ish</i> agrees. <i>Pitchei Choshen</i> also observes that no authoritative responsum is written to the contrary. Moreover, the Gemara states <i>ani hamehapeich bechararah u’va acheir v’natlah</i> [and another came and took it] <i>nikra Rasha</i>”, implying that the prohibition applies only when another buyer interferes and not when the seller initiates the negotiations with another buyer who is a more desirable purchaser. Thus, since “goalie” was fully entitled to initiate the negotiation with “glove purchaser”, the latter did not violate <i>ani hamehapeich bechararah</i> even according to Rashi.
  Conclusion
  The final ruling was that “glove purchaser” was fully entitled to keep the glove and that “glove caller” could demand the right to purchase the glove. This ruling was not only in accordance with strict Halachah but also is quite fair and in keeping with the Torah Academy tradition to pass the glove from the graduating goalie to the goalie of the incoming twelfth grade. This story has a happy ending in that when “glove purchaser” graduated in 2010 he sold the glove to “glove caller” the twelfth grade goalie in 2010-2011.
  
  Broken Bats and Beit Din
  
  The Case
  One Sunday at a Torah Academy of Bergen County softball practice a student (“batter”) picked up a baseball bat as he went up to hit during batting practice. The owner of the bat (“bat owner”) immediately instructed “batter” not to take the bat since it was an expensive bat whose purchase price was eighty dollars. “Batter” asked if he could use the bat whereupon “bat owner” stated clearly and unequivocally that were ”batter” to break the bat, he would have to pay “bat owner” eighty dollars. “Batter” agreed to the condition (point of clarification for those not familiar with baseball - non-metal bats break occasionally).
  Before each pitch during the batting practice “bat owner” repeated his stipulation of “you must pay me eighty dollars if you break the bat” and “batter” expressed his consent. All was going smoothly until “batter” swung and broke the bat. The bat cost seventy five dollars to replace.
  The Dispute
  “Batter” and “bat owner” agreed on the facts but “batter” argued that he did not have to pay eighty dollars as stipulated. He noted that when “bat owner” purchased the baseball bat it came with a promise of a one time replacing the bat if it broke during normal usage. Prior to the incident described above, someone borrowed the bat and it broke and the company replaced the bat. “Batter” argued that the eighty dollars charge should be shared by him and the person who broke the bat the first time.
  I responded that the first borrower bore no responsibility since his breaking the bat did not cause a loss. This situation may be compared to one who dug a <i>bor </i>(pit) that is less than ten <i>tephachim </i>(approximately forty inches) deep and another came and added to the <i>bor </i>so that it is ten <i>tephachim</i> deep. If an animal fell in and died from the fall, only the one who completed the ten <i>tephachim</i> is responsible to pay for the loss of the animal since a <i>bor</i> that is less than ten <i>tephachim</i> deep is not capable of having an animal die of a fall within it (Bava Kama 51a and Shulchan Aruch C.M. 410:15). Similarly, only the second person to break the bat caused the monetary loss and not the first so the first is not obligated to pay anything.
  Stipulations that Contradict Halachah
  In addition, it is possible to excuse the first person to break the bat since the bat broke as a result of normal usage (<i>meitah machmat melachah</i>). The Torah distinguishes between four categories of people who watch property belonging to others – <i>shomer chinam</i> (unpaid watchman), <i>shomeir sachar</i> (paid watchman), <i>socher</i> (renter) and <i>sho’eil </i>(borrower). Halachah assigns different degrees of responsibility for each category (see Mishnah <i>Shavu’ot</i> 8:1). The borrower is responsible for all situations except for <i>meitah machmat melachah</i> (see Bava Metzia 34a). Thus, the first person to break the bat should not be responsible for the damage he caused since the bat was broken as a result of normal usage.
  Accordingly, “batter” should be excused from payment since the bat was broken as a result of normal usage. Moreover, the stipulation for payment should be invalid since it contradicts Torah law. Indeed, the Mishnah (Bava Metzia 7:11) states “<i>kol hamatneh al mah shekatuv baTorah tena’o batel</i>”, a stipulation that runs counter to Halachah is invalid.
  However, the previous Mishnah (Bava Metzia 7:10) contradicts this rule. This Mishnah teaches that a borrower may make a condition that he excused from payment in all situations. The reasoning for this Mishnah is that <i>tenai shebemammon kayam</i>, that stipulations in regard to financial matters are valid even if they contradict Torah law. One owns his money so he may waive his Torah given right to collect money or conversely is permitted to agree to obligate himself to pay money that the Torah does not require him to pay.
  The Gemara (Bava Metzia 94a) explains that the two Mishnayot reflect two differing opinions. Rabi Meir forbids making stipulations that contravene Halachah whereas Rabi Yehudah permits doing so regarding financial matters. The Shulchan Aruch (E.H. 38:5 and C.M. 291:17) codifies the opinion of Rabi Yehudah as normative. Thus, “bat owner’s” condition to obligate the borrower in case of <i>meitah machmat melachah </i>is valid and “batter” seems to be required to pay.
  The Absence of a <i>Kinyan Suddar</i>
  This conclusion might not be warranted in light of the fact that “batter” did not receive any “consideration” in exchange for obligating himself to pay beyond his halachic responsibility as a <i>sho’el</i>. Consideration refers to the halachic requirement for someone who obligates himself to pay or sell something to receive something in exchange in order for the obligation to be halachically binding. The <i>kinyan suddar</i> (often simply called a <i>kinyan</i>), where the recipient of an obligation hands the one who obligates himself an item of some value, even though it will be returned, is the traditional means among our people to present symbolic consideration that makes the obligation halachically binding (see <i>Rut</i> 4:7, which describes the use of the <i>kinyan suddar l’kayeim kol davar</i>”, to uphold all matters). We are familiar with a rabbi conducting a <i>kinyan suddar</i> with a groom to validate the obligations the groom has assumed in regards to the <i>ketubah </i>and a rabbi conducting a <i>kinyan suddar</i> with one who has agreed to appoint the rabbi as his agent to sell his chametz.
  Although the Gemara (<i>ibid</i>.) does not require a <i>shomer chinam</i> who wishes to assume the obligations of a borrower to engage in a <i>kinyan suddar</i> to seal this commitment, the <i>Ketzot HaChoshen</i> (340:1) raises the possibility that a <i>sho’el</i> who wishes to obligate himself in case of <i>meitah machmat melachah</i> must perform a <i>kinyan suddar</i>. The <i>Ketzot</i> notes that it is possible that the <i>shomer chinam</i> need not receive symbolic consideration because he receives consideration in the form of enhancing his reputation as a trustworthy person to whom people lend items. <i>Tosafot</i> (Bava Metzia 58a s.v. <i>Amar Rabi Yochanan</i>) cite one explanation that when he assumes the responsibilities of a <i>sho’el </i>he watches the item more carefully (like a <i>sho’el</i> would) and therefore people assume that the item was loaned to him, thereby enhancing his reputation.
  However, a <i>sho’el</i> who agrees to exceed his responsibilities might require a <i>kinyan </i>because he does not receive such consideration. Thus since “bat owner” did not conduct a <i>kinyan suddar</i> with “batter” it is possible that “batter’s” halachic obligation did not take effect. Although the <i>Ketzot</i> concludes with uncertainty, “batter” could claim that the uncertainty works to his favor since a major principle in adjudicating monetary disputes is <i>hamotzi meichaveiro lav hara’ayah</i>, the burden of proof falls on the plaintiff (Bava Kama 46a). Thus in a case of doubt the case is resolved in favor of the defendant since the plaintiff is unable to prove his case.
  Nonetheless, “batter” might be obligated to pay for the damage despite the absence of a <i>kinyan suddar</i>. The <i>Netivot</i> (340:2) distinguishes between a <i>shomer chinam </i>assuming the obligation of a <i>sho’el </i>where consideration is required and a <i>sho’el</i>’s obligating himself to pay in case of <i>meitah machmat melachah</i>. The <i>shomer chinam</i> accepts an obligation for which he would otherwise not be required to assume. He, therefore, requires consideration to effect his obligation. However, a <i>sho’el</i> would have been obligated to pay for an item that breaks during usage had he not received permission to borrow the item, since he would be a <i>mazik</i> (one who causes damage).
   A <i>mazik</i> is responsible in nearly all circumstances, whether he broke the item deliberately or inadvertently (Bava Kama 26a). However, when one lends an item to someone one ordinarily permits the borrower to use the item and waives the right to sue for damages that happen during normal usage. If the lender stipulates that the <i>sho’el</i> is responsible even in a case of <i>meitah machmat melachah</i>, the lender is in effect withholding this waiver and the borrower must pay as a <i>mazik</i> like any other individual.
  Thus, the <i>Netivot </i>argues, the <i>sho’el</i> in such a situation is not required to make a <i>kinyan suddar</i> since he is not assuming the responsibility to pay in case of <i>meitah machmat melachah</i>. Rather, the lender is simply not waiving his right to make claim in case the borrower breaks the item even during normal usage. Since neither party makes a commitment, a <i>kinyan</i> is not necessary to seal the agreement. Thus, according to the Netivot, “batter” is not excused from indemnifying “bat owner” despite the fact that he did not make a <i>kinyan</i>.
  The question remains, though whether Halacha follows the opinion of the <i>Ketzot</i> or that of the <i>Netivot</i>. The <i>Aruch Hashulchan</i> (C.M. 340:7) rules in accordance with the <i>Netivot</i> especially since a <i>Rishon</i> (<i>Shitah Mekubetzet</i> to Bava Metzia 69b) already articulated the approach of the <i>Netivot</i>. The <i>Pitchei Choshen</i> (2:10:7) writes that “many Poskim” believe that a <i>sho’el</i> need not make a <i>kinyan</i> in order to assume the responsibility of <i>meitah machmat melachah </i>and does not present a dissenting opinion.
  Thus, the opinion of the <i>Netivot </i>is accepted as normative. Indeed, Rav Zalman Nechemia Goldberg, a leading contemporary <i>posek </i>especially in regard to financial matters, ruled in accordance with the <i>Netivot</i> in the following situation (<i>Techumin</i> 17:292). A young man brought <i>sefarim</i> to a bookbinder to rebind. The process of rebinding the books involves using a special tool to make holes in the sides of each <i>sefer</i>. The young man asked if he could borrow the tool and make the holes himself. The bookbinder willingly lent him the tool while warning that if the tool would break, the young man would have to pay for damages. The young man subsequently broke the tool while making the holes. Rav Zalman Nechemia Goldberg ruled in accordance with the <i>Netivot</i> that the young man was required to pay for the broken tool.
  Two more reasons exist to require “batter” to pay even according to the <i>Ketzot</i>, despite “batter’s” not having performed a <i>kinyan</i>. The reason why a <i>sho’el </i>is normally excused from paying is that the lender agrees to the borrower using the item despite the risk that it might break during usage. In our situation, however, “bat owner” did not want “batter” to use his bat. Thus, “batter” is not construed as a <i>sho’el</i>, who is excused in case of <i>meitah machmat melachah</i>, since he did not have permission to use it. Instead he is an ordinary <i>mazik</i> who is responsible to pay even though he did not intend to do damage. The stipulation “If you break the bat you pay eighty dollars” means that since “batter” is not borrowing the bat with permission, he does not enjoy the usual benefits of a <i>sho’el</i> who is excused in case of <i>meitah machmat melachah</i>. Thus, it seems that even the <i>Ketzot</i> would obligate “batter” to pay164<i class="footnote">Yakir Forman comments that “bat owner” did not want “batter” to use his bat at first but then acceded when he made the stipulation. Since “bat owner” did eventually let “batter” borrow his bat, it seems that “batter” is a Sho'eil. However, one could interpret “bat owner” as meaning ‘you have no permission to borrow this bat and if you break it you will be treated as an ordinary Mazik’. </i>.
  In addition, the parties agreed to adjudicate the case not only based on <i>d</i><i>in</i> (strict Haalchah) but also <i>pesharah</i> (equity and compromise; see <i>Gray Matter</i> 2:193-200). It certainly is not fair to excuse (or at least not to entirely excuse) “batter” from paying simply due to the “technicality” of not having made a <i>kinyan</i>. Thus, we have yet another reason to obligate batter to pay even according to the <i>Ketzot</i>.
  Damages versus Replacement Value
  It is clear that “batter” must pay something for having broken the bat. However, it is not clear how much he must pay despite his agreement to pay eighty dollars in case of his breaking the bat. We must still discuss whether the stipulation to pay eighty dollars was valid as it might constitute <i>asmachta</i>.
  When one damages something he is obligated to pay in accordance with the damage he caused but is not obligated to pay replacement cost. Only if the item he damaged does not have a market value must he pay replacement cost. For example, if one rendered an automobile inoperable then one does not pay replacement cost of the car, rather one pays the value of that automobile at the time of damaging the car. However, if one broke someone’s eyeglasses one would most likely have to pay replacement cost since there is no market for used eyeglasses of a specific prescription (see Rav Yonatan Blass’s essay in <i>Techumin</i> 13:388-406 where he deals with this issue at length). We should note that the creation of internet marketing sites such as E-bay has greatly expanded the marketability of a wide variety of used items.
  A used item is almost always worth less than if it were brand new. Thus, Halachah demands that “batter” pay the value of the bat at the time he broke it and not the amount it will cost to purchase a brand new bat (assuming there is a market for used high quality bats). Thus, it seems that “batter” did not do eighty dollars worth of damage. Accordingly, we must explore the validity of the agreement to pay eighty dollars were he to break the bat in light of the Halachot of <i>asmachta</i>.
  <i>Asmachta</i>
  <i>Asmachta</i> is where a party agrees to pay a penalty in case he does not perform a specific task, where the penalty exceeds the damage he caused. The Mishnah (Bava Batra 10:5) presents the following situation:someone paid a part of his loan and sought an extension of the loan. The borrower gave the original promissory note to a third party and instructed him that if he would not repay the loan by the specified time, the third party may present the original promissory note to the lender, enabling the latter to collect the entire loan despite the fact that part of the loan was paid. Although Rabi Yosi validates this agreement and would instruct the third party to hand the note to the lender, the Halachah (Shulchan Aruch C.M. 207:12) follows the opinion of Rabi Yehudah who invalidates such an agreement.
  The Gemara (Bava Batra 168a) explains that Rabi Yehudah and Rabi Yosi disagree whether an <i>asmachta</i> is a valid condition or not. Rashbam (ad. loc. s.v. <i>Asmachta</i>) explains that <i>asmachta</i> is when one makes a condition in order to convince someone to do something with the promise that he will do something in the future. He thinks at the time when he makes the condition that he will be able to meet the condition but when it comes time to do so, it is beyond his ability to meet the condition. Rashi (Sanhedrin 24b s.v. <i>Kol Ki Hai Gavna</i>) explains that Rabi Yehudah regards such an agreement as invalid since the person never had the intention to carry out what he promised in case of default.
  Limitation on <i>Asmachta</i>
  One could possibly invalidate “batter’s” agreement to pay replacement cost instead of the actual monetary loss caused, since he agreed to pay the larger amount only in order to obtain consent to use the bat, and he did not believe the bat would break; therefore, his agreement would constitute <i>asmachta</i>. However, Halachah does not regard a situation where one pays only slightly more than the actual damage as <i>asmachta</i>. Thus we must refine our previously stated definition of <i>asmachta</i> - when the penalty fee is disproportionately high relative to the damage done (and not simply when the penalty exceeds the damage).
  Two classic situations illustrate this principle. In the times of the Mishnah a classic clause in a sharecropper’s contract would be “<i>im ovir v’lo a’avid ashaleim b’meitvah</i>”: if I do not work the field, I will pay you generously (Bava Metzia 9:6). This means the sharecropper agrees to pay the landowner based on a high-end estimate of what the field would have produced had he worked the field. The <i>Beit Meir (</i>cited in <i>Pitchei Teshuvah E.H.</i> 50:9) explains that since the stipulated payment is only a small exaggeration it does not constitute <i>asmachta</i>. In such a situation we do not assume that the one making the agreement had no intention to fulfill it.
  This distinction is apparent from the Rama (C.M. 207:13) as well. He explains that while the condition of “<i>im ovir v’lo a’avid ashaleim b’meitvah</i>” does not constitute <i>asmachta</i>, it is considered <i>asmachta</i> if the sharecropper stipulates “if I do not work the field, I will pay you one thousand zuz”.
  The second classic example is the traditional Ashkenazic practice, recorded and endorsed by the Rama (E.H. 50:6) for <i>tena’im</i>, engagement contracts, to call for penalties if either side breaks the engagement. One opinion in <i>Tosafot</i> (Bava Metzia 66a s.v. <i>U’minyumi</i>; cited as authoritative by Beit Shmuel 50:14) explains that the payment does not exceed the damage (i.e. is not <i>asmachta</i>) because the payment is construed as <i>demei boshet</i>, compensation for the embarrassment caused by one’s engagement being called off. Recall that Halachah calls for one to compensate for serious embarrassment he causes to others (Bava Kama 83b). Beit Shmuel (<i>ibid</i>.) adds that even if the breakup causes no great embarrassment nonetheless the money paid is sufficiently similar to <i>demei boshet</i> that the obligation is not considered to be <i>asmachta</i>. The <i>Beit Meir</i> (cited by the Pitchei Teshuvah <i>ibid</i>.) explains “this is similar to the <i>im ovir v’lo a’avid ashaleim b’meitvah </i>agreement where it is not considered to be an exaggeration so too here where one obligates himself only somewhat more than exact <i>demei boshet</i> it is comparable to the sharecropper’s commitment to pay <i>meitvah</i> (a commitment to pay a generous, but not outrageous amount; where one cannot claim he did not intend to pay)”.
  I consulted Rav Mordechai Willig to voice his opinion if agreeing to pay replacement cost when paying for damage is sufficient, is a great exaggeration or analogous to <i>meitvah</i>. He ruled that it is comparable to <i>meitvah </i>so “batter’s” obligating himself to pay replacement cost is legitimate and not an <i>asmachta</i>.
  Eighty or Seventy Five Dollars
  Somewhat surprisingly Rav Willig ruled, though, that “batter” is obligated to pay only seventy five dollars instead of eighty dollars as agreed, since the actual replacement cost was only seventy five dollars. Rav Willig argued that since it is obvious that “bat owner’s” intention was to recover the replacement cost for the bat and not specifically eighty dollars, he is entitled to only seventy five dollars and not the eighty he stipulated.
  One may question Rav Willig’s ruling based on the following case recorded by the Gemara (Kiddushin 49b): A certain individual sold his property with the intention to move to Eretz Yisrael. However, he did not specifically condition the sale upon his successful move to Eretz Yisrael. When afterwards he was unable to move to Eretz Yisrael he was not entitled to demand the right to repurchase the house, even though he sold the house with the intention to move to Eretz Yisrael. The reason for this, states the Gemara, is that <i>devarim shebeleiv einam devarim</i>, unarticulated thoughts carry no Halachic significance. It would appear from the Gemara’s ruling that we should consider only “bat owner’s” words and not his thoughts and therefore award him eighty dollars as he specifically stipulated.
  <i>Tosafot</i> (ad. loc. s.v. <i>Devarim Shebeleiv Einam Devarim</i>) clarify that there are exceptional situations where the parties’ intentions are so clear that we follow those intentions, even if the parties do not express them.165<i class="footnote">For example, Tosafot points to the Gemara's ruling (Bava Batra 132a) that if one, under the impression that he has no live son, gives all of his possessions as gifts to others but later discovers he has a live son, the gift is invalid even if the giver didn't explicitly stipulate that the gift was only due to his lack of sons. Tosafot</i> state that in those situations “we assess that this was his intention”. In our case Rav Willig felt that “bat owner’s” intention was obvious and assessed that his intention was merely to recover replacement cost.
  Conclusion
  Although this matter may seem trivial to some and they may wonder why so much effort was expended to resolve a matter of relatively little money, this attitude is not shared by the Torah. The Gemara (Sanhedrin 8a) teaches us to treat disputes involving a small amount of money as seriously as we do a case involving a large sum of money. Moreover, the Gemara (Shabbat 10a) teaches that one who makes the effort to properly adjudicate a monetary dispute is considered to be a partner in Creation. No wonder this small-scale dispute among teenagers merited the attention of Rav Mordechai Willig, a leading halachic authority.
  
  Moving to Better Seats at a Ball Game
  
   I am regularly asked if it permissible to move into unoccupied better (and far more expensive) seats at a ball game, well into the game when it is clear that no one will be sitting in those seats during that game. Some argue that a celebrated discussion in the Gemara (Bava Kama 20a) indicates that it is permissible to do so. Upon investigation, though, it is clear that this is not the case.
  <i>Bava Kama</i> 20a
  This Gemara discusses the obligations of one who resided in another’s property without the owner’s permission. The Gemara presents three variations of this situation. One extreme case is when the property was not available for rent and the squatter would not normally pay for a place to reside, then it is clear that the squatter is not required to compensate the owner, since the squatter did not benefit (i.e. save money from not having to pay rent) and the owner of the property did not lose (i.e. was not deprived of generating income from renting out the property).
  The other extreme is where the property was normally rented out and the squatter deprived the property owner from the opportunity to rent out the property and the squatter normally would pay for a place to live. In such a case it is obvious, states the Gemara, that the squatter must reimburse the property owner since the squatter benefitted and the owner has sustained a loss by his presence in the property.
  The more moderate situation is the one that is subject to considerable discussion in the Gemara (Bava Kama 20a-21a). This situation is where the squatter would normally pay for a place to live but the owner would not normally rent out the premises occupied by the squatter. In such a case the squatter has benefitted but the owner has not sustained a loss. This is referred to in the Gemara as “<i>zeh neheneh v’zeh lo chaseir</i>”, this one benefits and the other does not lose. The Halachah (Shulchan Aruch C.M. 363:6) follows the opinion of Rabi Yochanan that the squatter is not required to pay the owner in such a situation, since the latter did not sustain a loss in such a case.
  <i>Kofin Al Middat Sedom</i>
  There are a variety of explanations offered for Rabi Yochanan’s view. A popular explanation is that of the <i>Penei Yehoshua</i> (Bava Kama 20a) who writes that, according to <i>Tosafot</i> (ad. loc. s.v. <i>Zeh Ein Neheneh</i>), it is an example of “<i>kofin al midat Sedom</i>”, <i>beit din</i> coercing people to not be overly particular about their property. This explanation is supported by Rashi (Bava Batra 12b s.v. <i>Al Middat Sedom</i>) and <i>Tosafot</i> (ad. loc. s.v. <i>Kegon</i>) as well as the Rambam (<i>Hilchot Shecheinim</i> 7:8).
  The Mishnah (Avot 5:10) condemns individuals who act in the manner of Sedom by claiming, “What is mine is mine, and what is yours is yours.” This implies that one should not always demand from another exact payment to which one is entitled. Thus, one should not demand payment for gas and tolls from another who has asked him to ride home in his automobile if the latter did not take the former out of his way. Despite the fact that the rider has saved money, since he does not have to pay transportation costs, it is nonetheless Somodite behavior for the driver to demand payment if he has lost nothing. In fact, the <i>Ri </i>(presented in <i>Tosafot</i> ad. loc.) implies that the rule of <i>kofin al middat Sedom</i> is a Torah level law and not merely a rabbinic enactment.
  The Gemara (Bava Batra 12b) discusses a classic case of <i>Kofin Al Middat Sedom</i> where brothers divide fields they inherited and one of them owns a field adjacent to an inheritance field. <i>Rabbah</i> rules that we apply the rule of <i>kofin al middat Sedom</i> and we accommodate the brother in a case where the objectors have no good reason not to. The brothers have nothing to lose by taking different fields and the need to have one's fields adjacent to each other is not merely a matter of convenience. It increases the value of the field and makes farming the fields far more efficient. Thus, brothers’ refusal to accommodate the brother with a neighboring field is regarded as Sodomite behavior.
  In a modern application of this principle, an Israeli <i>beit din</i> (<i>Shurat Hadin</i>, vol. 2, pp. 323-333) adjudicated a case where Reuven awaited a refrigerator delivery, which could only be done through Shimon’s balcony. Shimon objected, without providing a good reason, unless Reuven paid him. The <i>beit din</i> ruled that Shimon should be forced to do the favor for free.
  Thus one could reason that one may sit in unoccupied seats at a ball game. Although one benefits from sitting in better seats, the stadium owners are not deprived of an income when people sit in unoccupied seats for the latter portion of a ball game. In such a situation, one could suggest, we are entitled to coerce the stadium ownership to refrain from engaging in Sodomite behavior.
  Rav Hershel Schachter – Prohibits Moving Seats at a Ball Game
  Nonetheless, it is clear that it is forbidden to move to the empty seats at a ball game. The Ritzva (presented in <i>Tosafot </i>ad. loc.) states explicitly that the property owner enjoys the right to keep people from squatting on their property. Although some <i>Rishonim</i> disagree, the <i>Penei Yehoshua</i> (ibid.) and the the <i>Encyclopedia Talmudit</i> (12:5) note that the majority of <i>Rishonim </i>agree with the Ritzba. Indeed, the Rama rules in accordance with <i>Tosafot</i>.
  The Rama, however, limits the Ritzva's ruling to cases in which the owner has potential to derive benefit but chooses not to do so. The Rama explains that a property owner's choice not to rent out a particular piece of property does not entitle a squatter to demand free access to that property. If, on the other hand, the property owner cannot derive benefit from a piece of property, the principle of <i>kofin al middat sedom</i> allows a squatter to inhabit that property without permission. Accordingly, since a stadium is highly unlikely in most circumstances to sell tickets at the later stages of a game, a squatter should be entitled to demand free access to empty seats.
  However, Pitchei Teshuvah (ad. loc. no. 3) notes that the consensus opinion applies the Ritzba’s assertion in all cases, that we cannot coerce a property owner to allow others to remain on his property without paying a fee. Indeed, Rav Herschel Schachter told me that the rule of “<i>zeh neheneh v’zeh lo chaseir</i>” is only a question of <i>b’diavad</i>, once the event occurred. However, he rules that <i>lechatchilah (</i>initially) it is forbidden to reside on another’s property without permission. Indeed the Gemara frames the issue as a question of whether the squatter must pay the property owner after the fact. The Gemara does not record an opinion that the squatter is entitled to demand the right to live for free in an area that the owner does not rent out. Accordingly, Rav Schachter told me that it is forbidden to move into unoccupied seats at a ball game.
  Similarly, Rav Schachter told me that that a community is forbidden to affix a <i>l</i><i>echi </i>(a portion of an <i>eiruv</i>) on another’s property without permission even if the property owner will suffer no negative consequences. Along the same lines, I heard Rav Soloveitchik instruct community rabbis not to install any portion of an <i>eiruv</i> without permission.
  Three Additional Reasons to Forbid Moving Seats
  Moreover, the principle of <i>kofin al middat Sedom</i> applies only to matters of serious need such as a place to reside, which seriously improve one's life, as the cases discussed in the Gemara indicate. The need for someone in a place of entertainment to move to a seat he did not pay for in order to increase the quality of one’s entertainment, seems hardly appropriate reason to coerce a property owner to allow another to sit in a sit without making paying.
  Furthermore, the concept of <i>kofin al middat Sedom</i> seems to apply only in regards to behavior of Jews towards other Jews. It does not seem that one may coerce a <i>nochri</i> to abide by this principle. Even if the stadium owner is Jewish, civil law should govern since it is unimaginable that Halachah would require one law to apply for <i>nochri </i>customers and another standard for Jewish patrons.
  Finally, stadium owners have every reason to object to people randomly moving seats. There is a need to instill a sense of order and discipline at a stadium and allowing people to move about, each according to what is appropriate in his eyes, creates a sense of pandemonium. A sense of order is certainly necessary in these circumstances since alcohol is served at such events and the potential for disorder is great. Therefore, it is entirely reasonable for stadium owners to enforce discipline by objecting to fans moving seats without permission. Could one imagine airplane passengers randomly moving into unoccupied seats in the business class or first class sections of an airplane? Such behavior is simply unheard of and understandably not tolerated by airlines. Thus, because sitting in a seat for which one did not pay will be detrimental to the stadium owner's attempt to maintain order, doing so creates a case of “<i>zeh neheneh vezeh chaseir</i>” (this one benefits, and the other loses). Rabi Yochanan's opinion that one does not pay in a case of “<i>zeh neheneh vezeh lo chaseir</i>” does not apply at all to this type of case.
  An Exception – <i>Mechilah</i>
  An exception to the rule would be in a stadium where it is clear that its owners do not mind fans to move into better seats at later stages in a game. This might occur at sparsely attended major league games such as a losing team, those played in bad weather or at a minor league game. The Shulchan Aruch (C.M. 359:1) permits one to take an item that most people do not mind being taken. Even regarding such a case, the Shulchan Aruch states that pious people should refrain even from such behavior.
  In today’s major league ballparks where owners charge very high prices for seats that are closer to the field, owners almost always do not want people to move into seats for which they did not pay. One cannot extrapolate from the more relaxed attitudes of major league ball park owners of thirty years ago when player salaries and seat prices were a tiny fraction of current levels.
  Conclusion
  It is common today for observant Jews to attend ball games while openly displaying their identity by wearing kippot<i> </i>and modest dress. Since it is very noticeable when someone has moved to seats for which he did not pay, the potential for creating a <i>chillul Hashem</i> is great. Moving seats is generally regarded as unrefined behavior so one should avoid doing so, unless there is a clear custom in that stadium for the owners to permit fans to move to better seats at an advanced point in the game. It is certainly reprehensible to bribe an usher to gain access to better seats. Our mission to act as a “holy nation” (Shemot 19:6) compels us to act in the most upright manner especially at times when we are in close contact with <i>nochrim</i>.