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text: Contemporary Halakhic Problems, Vol V
  בעיות הלכתיות עכשוויות, כרך ה
  Contemporary halakhic problems, by J. David Bleich, 1977-2005
  
  
  Contemporary Halakhic Problems, Vol V
  
  Preface
  
  As was the case with the earlier volumes in this series, much of the material presented in this volume originally appeared in my "Survey of Recent Halakhic Periodical Literature" which is regularly featured in the columns of <i>Tradition</i>. Many of those items have been expanded and amplified for presentation in their present form. Portions of this work served as the subject matter of <i>shi'urim</i> and seminars on behalf of the students of the Rabbi Isaac Elchanan Theological Seminary and its <i>Kollel le-Hora'ah</i> as well as of the Benjamin N. Cardozo School of Law. The ongoing support of the Leonard and Bea Diener Institute of Jewish Law in facilitating my investigation of the application of Jewish law to contemporary legal and moral issues is gratefully acknowledged.
  This work is not intended to serve as a practical halakhic guide and, indeed, no attempt has been made to present definitive <i>psak halakhah</i>. It is devoted to an analysis of Halakhah and halakhic reasoning rather than to definitive statements of halakhic determinations. As such, it is directed primarily to those who have at least some background in the study of rabbinic literature but lack the requisite skills or the leisure to assimilate and analyze the maze of responsa pertaining to the topics treated in this volume. It is intended as an invitation to the reader to join in the noblest of Jewish activities and the supremest of joys—the study of Torah.
  I wish to express my thanks to my brother-in-law, Rabbi Mordecai Ochs, for his painstaking reading of the manuscript; to my son, Rabbi Dr. Moshe Bleich, for drawing my attention to sources that otherwise would have eluded me and for his many valuable insights; to my distinguished colleague, Professor Steven Resnikoff of De Paul University School of Law, for his erudite comments; to Rabbi Moshe Shapiro, Mr. Zalman Alpert and Mr. Zvi Erenyi of the Mendel Gottesman Library for their constant helpfulness; to Rabbi Menashe Shapiro for his research assistance; to Dr. Mark Licht for his efforts and expertise in clarifying matters pertaining to contact lenses; to my secretary at the Benjamin N. Cardozo School of Law, Miss Kaaron Saphir, for her patience and understanding; to my esteemed friend, Mr. Ernest Grunebaum, for noting typographical errors in earlier publications of this material; and especially to my students for their incisive and relentless questioning.
  My gratitude also to the publisher of the first four volumes of this series, Mr. Bernard Scharfstein of Ktav Publishing House, for his warm friendship and generous cooperation. Those volumes remain available from Ktav Publishing House, Jersey City, New Jersey.
  Particular thanks are due to the publisher of the present volume, Rabbi Moshe Dombey, for his unfailing indulgence and forbearance; to Mr. Yaakov Feldheim for introducing me to Rabbi Dombey and Targum Press; to Mrs. Chaya Baila Gavant for her painstaking efforts and good humor in shepherding this complex manuscript through the various stages of publication; and to the staff of Targum Press, especially Mrs. Diane Liff and Rabbi Yehuda Aharon Horovitz, for their meticulous efforts in enhancing the usefulness and attractiveness of this publication.
  Above all, I am grateful to the Almighty for my cherished collaborators — the members of my family. Our prayer to the Almighty is that we continue to be numbered among the <i>mashkimim le-divrei Torah</i> and, to paraphrase the words of the <i>hadran, ke-shem she-'azartanu le-sayyem sefer zeh, ken ta'azrenu le-hatḥil sefarim aḥerim u-le-sayyemam, lilmod u-le-lamed, lishmor ve-la'asot u-le-kayyem</i>.
  
  Introduction
  
  <i>Lomdut</i> and <i>Psak</i>: Theoretical Analysis and Halakhic Decision-Making
  <i>"If you walk in My statutes and observe My commandments…." When [Scripture] states, "and observe My commandments" [observance of] commandments is denoted. How then will I fulfill "If you walk in My statutes?" That you travail in [the study of] Torah</i>.
  SIFRA, LEVITICUS 26:3
  As I have written elsewhere, to my mind, halakhic decision-making is primarily a science but it is also an art.1<i class="footnote"><i>Contemporary Halakhic Problems</i>, IV (New York, 1995), xiv. See also this writer’s “Is There an Ethic Beyond Halakhah?” <i>Studies in Jewish Philosophy</i>, ed. Norbert M. Samuelson (Lanham, 1987), p. 543.</i> Halakhah is a science in the sense that, in its pristine form, there is no room for subjectivity. That is not to say that there is no room for disagreement. Disagreement abounds in the natural sciences no less so than in Halakhah. But, in picking and choosing between contradictory and conflicting theses, the scientist acts on the basis of the canons of his discipline as understood by his quite fallible intellect, not on the basis of subjective predilections. The halakhic decisor faces the same constraints.
  The decisor must seek neither the stringent ruling nor the lenient ruling but the view that is most authoritative. Moreover, there usually is a view that has been accepted in practice by the majority of <i>poskim</i> as the accepted standard. Thereupon, such a ruling becomes normative and deviation cannot be considered other than by virtue of compelling reasons. It was the view of many of the most renowned personages in the annals of halakhic scholarship that the rulings accepted as authoritative by the community of Israel were accepted as such by virtue of the operation of divine providence.2<i class="footnote">See, for example, R. Yonatan Eybeschutz, <i>Urim ve-Tumim, Kiẓur Tokpo Kohen</i>, sec. 124, who states that a defendant cannot claim to rely upon an opinion ignored by <i>Shulḥan Arukh</i> and Rema because their rulings were guided by the Divine Spirit.</i>
  To be sure, not all minds think alike. As expressed long ago by the Sages, "Just as their countenances are not similar one to another, so are their intellects not similar one to another" (Palestinian Talmud, <i>Berakhot</i> 1:9). One person may regard an argument as compelling; another may not. One person may assign greater weight to a precedent or to the position of a given authority while another may assign lesser weight to the same precedent or position. Each may regard his assessment as crystal clear and regard the opposing view as ill-informed.
  But halakhic decision-making is indeed an art as well as a science. Its <i>kunst</i> lies precisely in the ability to make judgment calls in evaluating citations, precedents, arguments, etc. It is not sufficient for a halakhic decisor to have a full command of relevant sources. If so, in theory at least, the decisor par excellence would be a computer rather than a person. The decisor must have a keen understanding of the underlying principles and postulates of Halakhah as well as of their applicable ramifications and must be capable of applying them with fidelity to matters placed before him. No amount of book learning can compensate for inadequacy in what may be termed the "artistic" component. The epithet "a donkey carrying books" is the derisive reference employed in rabbinic literature to describe such a person.3<i class="footnote">See, for example, <i>Ḥovot ha-Levavot, Sha’ar Avodat ha-Elokim</i>, chap. 4.</i>
  This talent is partially innate and partially acquired. No one springs from the womb as an accomplished musician. Training and practice are necessary prerequisites. Some teachers are certainly better pedagogues than others; some are certainly more proficient than others in transmitting subtlety in analysis, novelty in interpretation and sophistication in execution. But no amount of instruction and practice will make a musician of one lacking in musical talent. Any teacher of high school math will certify that a student who experiences little difficulty in solving problems presented in mathematical form but who scores significantly lower in analyzing verbal problems is the rule rather than the exception. Law school examinations typically take the form of hypotheticals and fact patterns designed to test, not simply knowledge of the law, but the ability to identify multifaceted issues as well as agility in applying legal theories to novel situations, Quite apart from breadth of knowledge, it is recognition of applicable categories and principles as well as depth of analysis with regard to substantive matters that distinguish the consummate halakhic scholar from the neophyte. When confronting conflicting positions and precedents, it is nuanced sophistication in applying canons of decision-making that is the hallmark of a proficient decisor.4<i class="footnote">See <i>Contemporary Halakhic Problems</i>, IV, xiii-xv.</i>
  In order to understand the role of <i>lomdut</i> it is necessary to focus attention upon the process by means of which definitive rulings are derived from fundamental principles. Only by means of the halakhic dialectic is it possible to appreciate the halakhic process as it is employed <i>le-hasik shematteta aliba de-hilkheta</i>, in reaching definitive conclusions on the basis of pertinent sources.
  There are really two distinct forms of <i>psak halakhah</i>. The first, which at least in our day is by far the most prevalent, involves a decision-maker who either regards himself as a <i>talmid she-lo higi'a le-hora'ah</i>, who is not entitled to an independent authoritative opinion of his own, or a person who for whatever reason has no strongly held opinion with regard to the question before him. Such an individual must perforce pick and choose from positions enunciated by earlier decisors. A person in such a position must employ various <i>kellalei hora'ah</i> or canons of halakhic decision-making (e.g., majority rule, <i>halakhah ke-batra'i, safek de-oraita, safek de-rabbanan</i>) in adjudicating between conflicting positions. Application of such rules is scientific in the sense that there is little room for subjective judgment. Of course, a determination must be made with regard to which positions are to be considered in the evaluation process and which are to be dismissed as entirely unworthy of consideration in the balancing of competing factors. More likely than not, determination is made, not with regard to the position itself, but with regard to the author of the opinion: Is the opinion that of a person whose erudition commands respect or of a <i>talmid to'eh</i> (errant student)? In principle, that, too, is a determination made on the basis of objective criteria.
  A purer or more basic form of <i>psak</i> takes place when a scholar, upon analysis of the problem and perusal of relevant sources, independently formulates an opinion to which he adheres with conviction. Assuming that the decisor is an individual who is <i>higi'a le-hora'ah</i> and that the deliberative process has been undertaken with intellectual honesty, the decisor need not feel conflicted because of opposing views, and those subject to his authority may rely upon his opinion with equanimity.5<i class="footnote">Although the matter is not quoted by any of the <i>poskim</i> it seems to me that a person intellectually convinced of the correctness of his own position may not himself inform an interlocutor that another more highly regarded authority is of an opposite view, but must refer the individual to that authority directly. There is a talmudic controversy with regard to whether the taste of the <i>gid ha-nasheh</i> is sufficiently pungent so that, if cooked with other food, it renders such food non-kosher. R. Ammi regarded such food to be prohibited. Nevertheless, the Gemara, <i>Ḥullin</i> 99b, reports that when a person brought such a matter before R. Ammi he would refer the person to R. Yitzchak ben Ḥalov who would rule permissively. Quite obviously, R. Ammi regarded R. Yitzchak ben Ḥalov as at least his equal and as a person whose opinion might be relied upon. Why did he not simply inform the interlocutor that, although in his own opinion the food is not permissible, the interlocutor might in good conscience rely upon the lenient view of R. Yitzchak ben Ḥalov?The talmudic narrative seems to reflect two distinct canons of <i>psak</i>: (1) One decisor may refer with equanimity to a person whose antithetical view is within the parameters of <i>elu ve-elu divrei Elokim ḥayyim</i>. (2) The same decisor dare not himself utter the word “<i>muttar</i>” in the name of another unless he believes that to be true. Perhaps it is the phrase “<i>zekenekha ve-yomru lakh</i>” (Deut. 32:7) that requires the <i>zaken</i> to announce his own opinion rather than the opinion of another. Cf., however, R. Shlomoh Zalman Auerbach, <i>Minḥat Shlomoh</i>, I, 44, who, while not directly contradicting the foregoing, opines that in cases of controversy regarding a matter of rabbinic prohibition, the <i>posek</i> must inform the interlocutor of the dispute and of the principle that the permissive view may be relied upon. If that is correct, why then, according to the authorities who maintain that the prohibition of <i>ta‘am ke-ikkar</i> is rabbinic in nature, did R. Ammi not himself inform the people in question of the opinion of R. Yitzchak ben Ḥalov and advise them that <i>safek de-rabbanan le-kula</i>?The same point seems to be reflected in the narrative recorded in <i>Ḥullin</i> 48a regarding the <i>kashrut</i> of an animal whose lungs had areas filled with pus. The Gemara relates that when a case of that nature came before R. Yoḥanan he would send it to R. Judah ben Simeon who would rule that it was permitted. Rashi comments that R. Yoḥanan himself maintained that the animal was not kosher but declined to forbid its use because he was not in possession of a received tradition to that effect. But, if R. Judah ben Simeon’s opinion could be relied upon why did R. Yoḥanan himself not make that information available?More cryptic but equally germane is the narrative recorded by the Gemara, <i>Ḥullin</i> 44b. An animal with a severed trachea was brought before Rav. Rav proceeded to examine the outer circumference of the trachea with a view to pronouncing the animal non-kosher if the greater part of the outer circumference had not remained intact. R. Kahana and R. Assi objected: “But have you not taught us, Master, to examine it on the basis of the greater part of the hollow [i.e., the inner circumference]?” Thereupon, Rav sent the matter to Rabbah the son of Bar Ḥana who examined the inner part of the circumference and, finding the greater portion to be intact, ruled the animal to be kosher. In this case, Rav was apparently prepared to rule in accordance with the stricter view but, when reminded by his students of his own earlier held permissive view, refused to state that the lenient view might be relied upon and instead put the person consulting him to the trouble of himself seeking out the scholar who would rule permissively.</i>
  Apart from perusal of sources, precisely what is the nature of the deliberation that yields a <i>psak halakhah</i>? In the vast majority of cases, it involves what in secular law schools is termed "issue-spotting." But, at least at times, it is something entirely different, <i>viz</i>., theoretical analysis of a halakhic concept or provision that proves to be dispositive. I regard both enterprises as scientific because, if carried out properly, both are compelled by the intellect. However, at the same time, it must be candidly recognized that theoretical analysis and, to a lesser degree, "issue-spotting" as well, requires acumen that is far from universal and in that sense may be regarded as an art.
  Traditionally, the curricula of <i>yeshivot</i> did not emphasize study of <i>psak halakhah</i>. Although study of <i>psak halakhah</i> often received scant attention, the process through which <i>psak halakhah</i> is derived was all but ignored. And for good reason: The process cannot be taught. One does not teach a toddler how to walk; walking involves a skill that develops innately. The most that we can do is provide an example to be emulated. National law schools pride themselves on not teaching the law but on teaching their students "to think like lawyers." And how does one teach a law student to think like a lawyer? Not by teaching logic or epistemology but by example. The infant observes adults walking, seeks to emulate them, tries to do so repeatedly, falls each time, finally succeeds in taking a number of faltering steps and ultimately masters the science of walking. The law school student is forced to analyze case after case, to trace the reasoning that leads from X to Y and to understand why, given the antecedent assumptions and goals, the reasoning is compelled. The student stumbles and falls repeatedly but ultimately learns by doing. The process parallels that of Eastern European <i>yeshivot</i> which concerned themselves with theory, analysis and methodology rather than with Halakhah <i>per se</i> on the assumption that factual information can be readily obtained at any time but that theory and skills can be mastered only upon assiduous application over a prolonged period of time. It was precisely this awareness that prompted <i>Hazal</i> to observe with regard to the training process: "<i>Gedolah shimmushah shel Torah yoter mi-limmudah</i>."6<i class="footnote"><i>Berakhot</i> 7b.</i>
  This is merely a verbose way of saying that (1) <i>psak</i> is impossible without <i>lomdut</i> and (2) that <i>lomdut</i> cannot be taught other than by example. Of course, the Halakhah, once definitively formulated, can be presented in capsule form. But not every hypothetical can be spelled out and not every eventuality can be anticipated. Rambam's codification of the corpus of Jewish law in the form of the <i>Mishneh Torah</i> and later R. Joseph Karo's restatement in the form of the <i>Shulḥan Arukh</i> met with opposition not so much because of objections to specific rulings or because those rulings could not be lightly overturned but because students might erroneously believe that, having mastered the factual material, they might dispense with both the underlying theory as well as the skills necessary to derive halakhic formulations from primary sources with the result that they would be quite incapable of applying the concise, cryptic rulings presented in those works to novel situations that must inevitably arise and to complex questions that can be resolved only upon identification of component issues.7<i class="footnote">See Maharal of Prague, <i>Derekh Ḥayyim, Avot</i> 6:6.</i>
  Maharsha, <i>Hiddushei Aggadot, Sotah</i> 22a, remonstrated:
  In these generations those who render halahkic decisions on the basis of the <i>Shulḥan Arukh</i>, but do not know the reason underlying every point, if they do not previously examine the matter on the basis of the Talmud…, errors will occur in their decisions and they are among the destroyers of the world. Therefore, one should reprimand them.
  At a much later date, the author of <i>Pitḥei Teshuvah, Yoreh De'ah</i> 242:8, modified Maharsha's comments with the observation that "perhaps" those remarks were cogent
  in the time of Maharsha when there was as yet no commentary on the <i>Shulḥan Arukh</i>. But now that the <i>Taz</i>, the <i>Shakh</i>, the <i>Magen Avraham</i> and other latter-day works have been authored and the reason for every ruling is explained in its place, it is proper to render decisions on the basis of the <i>Shulḥan Arukh</i> and the latter-day authorities.
  It is questionable whether <i>Pitḥei Teshuvah</i>'s assessment was correct when it was enunciated. Perhaps a question of a spoon and a pot can be decided on the basis of information available in a compendium, perhaps not. Experience teaches that quite frequently the serious questions presented to rabbinic decisors in this generation do not involve matters that are straightforward and clear-cut in nature. Those matters cannot possibly be addressed by persons lacking analytic skills.8<i class="footnote">See R. Abraham Elimelech Kornfein, <i>Shimmushah shel Hora’ah</i> (Jerusalem, 5754), p. xii.</i>
  American law schools teach students "to think like a lawyer" by forcing the student to analyze actual cases. The cases serve as examples of legal reasoning. I know of no way to illustrate the relationship of <i>lomdut</i> to <i>psak</i> other than by concrete example. The illustrations may appear to be but a string of anecdotes designed to demonstrate what to many is self-evident.9<i class="footnote">Indeed, Rabbi Kornfein’s <i>Shimmushah shel Hora’ah</i>, cited <i>supra</i>, note 8, is designed to serve as a pedagogic tool to train the student in issue-spotting. Actual questions and hypothetical fact patterns are presented and analyzed in terms of the salient issues that might be addressed in order to arrive at a determinant <i>psak</i>. For purposes of illustration one simple example will suffice: A non-kosher chicken leg was cooked in a cauldron of soup together with other kosher chicken legs. The total quantity of soup and chicken was only fifty-five times greater than the non-kosher chicken leg. The intuitive response of a neophyte student is that, since the permitted foodstuffs are less than sixty times greater than the non-kosher piece of chicken, the contents of the pot are non-kosher. However, upon proper analysis, the opposite is the case. Hard, inedible bones of a non-kosher animal, when cooked with kosher food, do not render the kosher food impermissible. However, since bones are absorbent, the bones of a kosher animal (and, for some authorities, even of the non-kosher animal) may be included as part of the aggregate necessary to nullify non-kosher food. Accordingly, since only the meat of the non-kosher chicken need be considered, a quantity of food fifty-five times greater than the entire chicken leg is ultimately more than sixty times greater than the non-kosher meat alone. See <i>Shimmushah shel Hora’ah</i>, no. 13.</i>
  "Brisk" has come to be synonymous with the analytic method. Yet, as reflected in the following anecdote, R. Chaim pointed to the "issue-spotting" aspect of <i>lomdut</i> when pressed to justify his insistence upon <i>lomdut</i> as a <i>sine qua non</i> of <i>psak</i>. I heard the narrative as a youth during the course of a <i>shi'ur</i> on <i>Pesaḥim</i> delivered by a <i>rosh yeshivah</i> who was a <i>talmid</i> of the Brisker <i>Rav</i> during the war years. To my regret, I did not commit the material to writing at the time and since I am unaware of any published version I must rely upon my memory which is all too fallible.10<i class="footnote">A similar anecdote, but minus any confrontation or discussion of analytic method, is presented by R. Shimon Yosef Miller in his recently published <i>Uvdot ve-Hanhagot le-Bet Brisk</i> (Jerusalem, 5759), I, 217-218. The source of that anecdote is apparently a report of R. Menachem Mendel Chen published in <i>Moriah</i>, vol. 4, no. 3-4 (Sivan-Tammuz 5732), p. 9.</i>
  As related by R. Velvel, apparently R. Chaim and a prominent non-Lithuanian rabbinic personage met at a wedding. Not surprisingly, the rabbi inveighed against the Lithuanian mode of study and decried the lack of emphasis upon <i>psak halakhah</i> in Lithuanian <i>yeshivot</i>. R. Chaim countered with the assertion that, in order to arrive at a correct <i>psak, lomdut</i> is essential. The response was met with derision. Thereupon, R. Chaim offered to prove his point by presenting a question to the rabbi which R. Chaim was fully confident that, not being trained in the Lithuanian methodology, the rabbi would answer incorrectly.
  The hypothetical involved two women, one Jewish, the other a gentile, each cooking meat outdoors in separate pots over adjacent fires. The question: The gentile woman shakes her pot, causing a piece of non-kosher meat of indeterminate size to fly through the air and land in the pot belonging to the Jewish woman. Is the food in the Jewish woman's pot permissible or is it impermissible because of the admixture of non-kosher meat? The rabbi responded by observing that the answer hinges upon whether or not the quantity of kosher food is sixty times as great as the quantity of non-kosher food that fell into the pot. When the non-kosher food is of a variety different from the kosher food, the requirement for a quantity sixty times as great for nullification to be effective is biblical; if both foods are of the same variety, biblical law regards the non-kosher food to be nullified even if the kosher food is only slightly greater in quantity. In order to prevent confusion, rabbinic law established a uniform principle for nullification and requires that the quantity of kosher food always be at least sixty times as great as the quantity of non-kosher food. In the case under discussion, the kosher food was greater in quantity than the piece of non-kosher meat but it was doubtful whether or not the quantity of kosher food was sixty times as great as that of the non-kosher food. Accordingly, the rabbi responded that since the kosher food and the non-kosher foodstuffs were meat having the same taste, the requirement of a quantity of kosher food sixty times the quantity of the non-kosher food is rabbinic in nature. Hence, he concluded, the principle that matters of doubt with regard to rabbinic matters are adjudicated permissively applies.
  To that R. Chaim responded that the rabbi had forgotten to take into account the fact that the gentile woman had no reason to soak and salt her meat and therefore the non-kosher food consisted not only of meat but of blood as well. Blood is distinct from meat and differs also in taste. The rabbi immediately reversed himself and conceded that since the doubt was with regard to nullification of a foodstuff in an entirely different type of food the doubt is with regard to a matter of biblical law and must be adjudicated on the side of stringency.
  R. Chaim countered by informing the rabbi that he was again in error because he had overlooked the fact that the meat had already been cooked in the pot for some time and hence the blood within the meat had been cooked as well. Most early-day decisors rule that blood that has been cooked is prohibited by virtue of rabbinic decree rather than by biblical law. Hence, the matter still involved only a possible rabbinic violation. The rabbi was forced to concede error for the second time.
  Thereupon, R. Chaim told him that he was in error yet again. Blood of a properly slaughtered animal is prohibited as blood and is biblically prohibited only in an uncooked state; blood of carrion, in addition to being prohibited as blood, is prohibited as carrion as well. However, cooked and uncooked carrion are equally proscribed by biblical law. Therefore, contended R. Chaim, the matter involves a possible biblical violation of the prohibition against carrion. The rabbi confessed that the point had not occurred to him. R. Chaim then countered once again by pointing to <i>Tosafot, Pesaḥim</i> 22a, s.v. <i>ve-harei dam</i>, that establishes that blood is not included in the biblical usage of the term "animal" and hence is not to be equated with meat for purposes of the prohibition against carrion.11<i class="footnote">In the version recorded in <i>Moriah</i> and in <i>Uvdot ve-Hanhagot, supra</i>, note 10, R. Chaim carried the “issue-spotting” one step further. In that report the non-kosher meat was not carrion but a kosher-slaughtered animal found to be a <i>tereifah</i>. R. Chaim incisively distinguished between <i>neveilah</i> and <i>tereifah</i> and declared the blood of a <i>tereifah</i> (and presumably also of a member of a non-kosher “unclean” species) to be biblically prohibited. Although, as <i>Tosafot, Pesaḥim</i> 22a, rule, the blood of an animal is not encompassed in biblical references to an animal, the blood is nevertheless the <i>yoẓei</i> of the animal, i.e., it is produced by the animal. Biblical law posits a specific prohibition banning the <i>yoẓei</i> or product emitted by a forbidden substance. Accordingly, since the blood of an animal is a product of the animal, the blood produced by an animal that has already become a <i>tereifah</i> is biblically prohibited as <i>yoẓei</i> and hence any doubt with regard to nullification of the blood of a <i>tereifah</i> is a doubt with regard to a biblical infraction. The same is not true with regard to blood of carrion since the blood, having been produced while the animal was still alive, is not the <i>yoẓei</i> of a <i>neveilah</i>. Accordingly, in the case of the meat of a <i>tereifah</i> that became mixed with kosher meat, R. Chaim concluded that, because of the presence of blood biblically prohibited as <i>yoẓei</i>, the matter involved a doubt with regard to a possible biblical infraction and hence he ruled that the meat was forbidden.</i>
  Even a consummate <i>lamdan</i> such as R. Chaim did not always immediately recognize all aspects of a problem. R. Yechiel Michal Rabinowitz, <i>Afikei Yam</i>, II, no. 32, reports an incident in which R. Chaim expressed regret for not having adequately analyzed the issues in a question brought before him. In a situation in which a patient afflicted with a serious illness requires meat on <i>Shabbat</i> and there is a choice between feeding him already available non-kosher meat or slaughtering kosher meat on <i>Shabbat</i> the accepted rule is to slaughter the animal in order to obtain kosher meat. Such is the accepted rule despite the fact that violation of <i>Shabbat</i> restrictions is a much more severe transgression than consumption of non-kosher meat. Various rationales have been advanced for the rule by early-day authorities.12<i class="footnote">See, <i>inter alia</i>, Rosh, <i>Yoma</i> 9:14; <i>Teshuvot ha-Rashba</i>, no. 689; and <i>Bet Yosef, Oraḥ Ḥayyim</i> 328.</i>
  Such a case arose in Brisk and, to no one's surprise, R. Chaim directed the <i>shoḥet</i> to slaughter on <i>Shabbat</i>. Subsequently, the <i>Dayyan</i> of Brisk, R. Simchah Zelig Reguer, recalled an item that he had earlier come upon in <i>Givat Olam</i>, authored by R. Tevel of Minsk. <i>Givat Olam</i> cites Ran who explains that, although slaughtering an animal on <i>Shabbat</i> constitutes a capital transgression, it involves but a single act, whereas eating a quantity of carrion, although involving only violation of a negative commandment, involves multiple infractions since consumption of each piece of meat equal to the size of an olive constitutes a separate violation. That rationale, contends <i>Givat Olam</i>, is cogent only if the patient is to be fed meat. If, however, the patient is to be given soup prepared from the meat, rules <i>Givat Olam</i>, non-kosher soup is to be preferred since consuming non-kosher soup involves only partaking of the "taste" of meat rather than of the meat itself. The prohibition of <i>ta'am ke-ikkar</i>, asserts <i>Givat Olam</i>, is rabbinic in nature and hence far less severe.
  When informed of that ruling, R. Chaim reportedly responded that had that consideration been brought to his attention he would not have directed that an animal be slaughtered but would have ordered soup to be obtained from a non-Jewish restaurant. R. Chaim added the comment that the ruling of <i>Shulḥan Arukh</i> to the effect that the principle of <i>ta'am ke-ikkar</i> is biblical in nature is intended only as a stringency.
  Both anecdotes involve not simply analysis of a situation in which all salient factual elements are expressly stated but contextual analysis in the sense of an ability to draw upon general <i>savoir faire</i> in order to identify unexpressed factors relevant to a halakhic analysis, i.e., awareness that soup rather than meat is the fare of the ill and, more obviously, that gentiles do not draw blood from meat.
  Perhaps a better example is the well-known story of the person who came to R. Joseph Ber Soloveitchik of Brisk to ask if milk could be used for <i>arba kossot</i>. Instead of answering the question, R. Joseph Ber took a sum of money from his pocket and gave it to the person with instructions to use it to purchase wine. His wife pointed out to him that the sum proffered was far in excess of the money necessary to purchase wine. R. Joseph Ber responded with the observation that no Jew would contemplate drinking milk after eating meat. Therefore, if the person sought advice regarding use of milk for all four of the <i>arba kossot</i> he obviously did not have the wherewithal to buy meat for <i>Yom Tov</i>. A person so obviously needy requires more than the price of four cups of wine.
  Such analyses require greater or lesser degrees of insight but hardly require singular intellectual prowess and hardly warrant the appellation <i>lomdut</i>. Of far greater intellectual significance is not identification of issues which, when pointed out, are immediately grasped by all, but delineation and proof of the nature of halakhic provisions. The nature and categorization of a halakhic provision may have a profound impact upon specific <i>psak</i>.
  This is true not only of Halakhah but of any system of law. Numerous examples can be found in any legal system. For purposes of illustration it may be useful to take as an example a recent U.S. Supreme Court case that has received media attention. The case involved a fairly simple issue of this nature. Pursuant to provisions of law, an Independent Counsel was appointed to investigate whether crimes had been committed by members of the Executive Branch during the course of prior investigations into the 1993 dismissal of employees of the White House Travel Office. During the course of those investigations, Deputy White House Counsel Vincent Foster, Jr., met with an attorney for the purpose of obtaining legal representation. The attorney took notes during the course of the meeting. Foster committed suicide some days later. Subsequently, a Federal Grand Jury, at the request of the Independent Counsel, issued subpoenas for those notes. The attorney sought to quash the subpoenas on the grounds that the notes were protected by attorney-client privilege.
  The issue before the Supreme Court in <i>Swidler &amp; Berlin and James Hamilton</i> v. <i>United States</i>13<i class="footnote">118 S.Ct. 2081 (1998).</i> was whether the attorney-client privilege survives the death of a client. Resolution of the question depends upon the nature of the attorney-client relationship. Is the privilege rooted in, and is it an expression of, the right against self-incrimination? If so, it should not survive the death of the client since the deceased is now beyond the reach of the law. Or is the privilege designed to encourage full and frank communication between attorneys and their clients for much broader purposes that do not necessarily involve criminal liability, e.g., personal and family matters, financial matters and problems arising in the course of operating a business? Knowledge that such communications might be revealed after the client's death would have a chilling effect upon a person desirous of such advice.
  The Court of Appeals ruled that posthumous revelation may be compelled in situations in which the relative importance of the communication to a particular criminal litigation is substantial. The Supreme Court found such a holding to be consistent with the notion that the attorney-client privilege is but another aspect of the privilege against self-incrimination but, upon determining that the attorney-client privilege is designed to promote an entirely different goal, reversed the Court of Appeals. The issue in <i>Swidler</i> could readily be formulated in Brisker terminology, i.e., as a <i>ḥakirah</i> concerning the nature of the attorney-client privilege.
  Brisker <i>ḥakirot</i> of this genre are legend. A sampling of such incisive analyses is included by R. Shlomoh Yosef Zevin in the pointed vignettes of R. Chaim he presents in his characteristically keen portrayal of the scholarly personality of R. Chaim in <i>Ishim ve-Shitot</i>.14<i class="footnote">2nd ed. (Jerusalem, 5718), p. 61. See <i>infra</i>, note 29. See also <i>Ḥiddushei ha-Graḥ al ha-Shas</i> (Jerusalem, 5729), p. 1 and <i>Ḥiddushei ha-Graḥ ve-ha-Griz al ha-Shas</i> (n.d.), p. 1.</i> One, actually definitively resolved much earlier by R. Akiva Eger in the latter's novellae on Oraḥ Hayyim 294, involves the following question: A person, for whatever reason, does not recite the <i>shemoneh esreh</i> for <i>moza'ei Shabbat</i>. The following morning he is required to recite the prayer twice, the first for <i>shaḥarit</i> and the second as <i>tashlumin</i> or a "make-up" for the missed evening prayer. In which of the two <i>shemoneh esreh</i> prayers should he include <i>attah ḥonantanu</i> which he did not recite the previous evening? The intuitive reaction is that <i>attah ḥonantanu</i> should be included in the second <i>shemoneh esreh</i>, i.e., the substitute for the prayer omitted the previous evening. Apparently, as reported by R. Zevin, such was the about-to-be rendered opinion of a rabbinic colleague, who lacked R. Chaim's acumen.15<i class="footnote">Indeed, Mishnah Berurah 294:2 rules <i>contra</i> the position of R. Chaim. It is surprising that Mishnah Berurah either overlooked or ignored the comment of R. Akiva Eger, particularly since there is no other authority who unequivocally rules to the contrary. For the rule in the case of a person who in the interim has recited <i>havdalah</i> over wine, see the conflicting sources cited by <i>Bi’ur Halakhah, ad locum</i>, and Mishnah Berurah 108:33.Members of the Soloveitchik family recount a slightly different version of this incident. According to that version, R. Chaim himself instinctively responded that <i>attah ḥonantanu</i> should be recited in the second <i>shemoneh esreh</i> but immediately reversed himself. They also report that both R. Naphtali Zevi Judah Berlin and R. Raphael Shapiro, although impressed by R. Chaim’s novel insight in this matter, disagreed with his ruling.</i>
  The correct answer, however, hinges upon an analysis of the nature of the ordination of <i>attah ḥonantanu</i>. Was it ordained for inclusion in the <i>ma'ariv shemoneh esreh</i> of <i>moza'ei Shabbat</i> or for inclusion in the first <i>shemoneh esreh</i> of the new week? If the latter is the case, then were, through some vagary of the calendar, Sunday morning to occur before Saturday evening, <i>attah ḥonantanu</i> would properly be included in the Sunday morning prayer. To formulate the <i>ḥakirah</i> is to recognize the answer. As R. Chaim and R. Akiva Eger before him16<i class="footnote">This is but one instance in which a “Brisker” ruling can be traced to earlier scholars. The analytic method was not invented in Lithuania but oft-times a much sharper presentation was formulated in those circles, as in this case the quixotic hypothetical of Sunday morning occurring before Saturday evening. Once, in the course of a <i>yahrẓeit shi‘ur</i>, Rabbi J. B. Soloveitchik presented R. Chaim’s analysis of the nature of a <i>shetar</i> and then pointed out that the analysis had actually been formulated much earlier by the <i>Keẓot ha-Ḥoshen</i>. Rabbi Soloveitchik concluded the citation with the pithy observation: “<i>Nor der Keẓos hot es gezokt ohn hendt und ohn fiss</i>.”</i> realized, there is no reason to associate <i>attah ḥonantanu</i> with the <i>ma'ariv</i> prayer; there is every reason to associate it with the first <i>shemoneh esreh</i> recited after the conclusion of <i>Shabbat</i>. Accordingly, a person who did not recite <i>shemoneh esreh</i> on <i>moza'ei Shabbat</i> should include <i>attah ḥonantanu</i> in the very first <i>shemoneh esreh</i> of the new week that he does recite, <i>viz</i>., the first <i>shemoneh esreh</i> of <i>shaḥarit</i> on Sunday morning. In this instance at least, the question of the <i>ḥakham</i> is more than half an answer; it is the entire answer.
  The crucial difference between the analytic approach of rabbinic scholars and the analyses of secular jurists operating within other legal systems is that the former disclaim any originality. The endeavor involves a pristine marshalling of sources and examination of text. Expediency, policy considerations and intellectual bias dare not be permitted to intrude. Widespread ascription of the appellation "<i>ḥiddush</i>" to the analysis must be understood in the sense of "discovery" rather than "novellum."17<i class="footnote">Elsewhere (<i>Contemporary Halakhic Problems</i>, IV, xiii), I have commented that there is nothing innovative in Halakhah in the true sense of that term, just as there is nothing inherently innovative in physics. Both disciplines have as their subject matter a closed, immutable system of law—physical in the case of the latter, regulative in the case of the former. To be sure, the theoretical physicist may propose a previously unexpounded thesis in an attempt to explain the operation of the laws of nature; so also may a <i>rosh yeshivah</i> develop conceptual novellae in the course of an endeavor to explicate the meaning of the revealed law. In physics, a newly developed hypothesis may have a predictive value with regard to empirical phenomena; likewise, talmudic novellae may yield heretofore unarticulated halakhic propositions. But both in physics and in Halakhah the outgrowth is likely to be marginal to each of the systems viewed in its entirety. In each case the thesis must be tested against the totality of the system. Generally, contradiction by other aspects of the system is tantamount to demonstration of an inherent fallacy in the thesis.</i> The purpose is not to read into the text but to make explicit that which is already inherent in the text. Such was the task of rabbinic scholars from time immemorial in all ages and in all lands. Some were simply more successful in those endeavors than others. It has been said that all of Western philosophy is but a series of footnotes to Plato. In a very real sense, all of rabbinic scholarship is but a series of footnotes to the talmudic texts, although sometimes the footnotes take the form of footnotes to footnotes authored by early-day authorities.
  Examples illustrating this point are virtually inexhaustable. It may be relevant to point to an example or two of the analytic approach in earlier ages and of its effect in the formulation of Halakhah. The Sages sought to enhance the honor and dignity of <i>Yom Tov</i> by encouraging haircutting before the advent of the festival. To accomplish that end they employed a simple expedient. They prohibited cutting hair during the intermediate days of the festival, thereby assuring that people would not put off a visit to the barber so that it would become a leisure time activity for <i>ḥol ha-mo'ed. Noda bi-Yehudah</i>18<i class="footnote"><i>Mahadurah Kammah, Oraḥ Ḥayyim</i>, no. 13.</i> marshals evidence showing that their edict was not simply an exercise of general rabbinic legislative power but had the effect of delineating the type of "labor" prohibited on the intermediate days of the festival. The prohibition against haircutting, asserts <i>Noda bi-Yehudah</i>, is nothing more and nothing less than categorization of haircutting as a prohibited form of labor. The logical result is that hair may be cut on <i>ḥol ha-mo'ed</i> under precisely the same conditions under which other proscribed forms of labor may be performed on <i>Yom Tov</i>. The chief practical application is that a needy person lacking funds for celebration of <i>Yom Tov</i> who is permitted to engage in otherwise prohibited activities in order to earn sufficient funds for that purpose may also work as a barber and others may avail themselves of his services with impunity.
  Analyses of such nature appear in the responsa of virtually all of the prominent <i>poskim</i> where seminal <i>teshuvot</i> have left an indelible imprint upon the halakhic process, although, to be sure, they seldom employed either the form or vocabulary later developed in Lithuanian circles. One example culled from <i>Teshuvot Hatam Sofer</i> will serve as illustration.
  It is, of course, forbidden to eat non-kosher foodstuffs. There is also a second prohibition against consuming food that has acquired the taste of a non-kosher substance. An example would be a situation in which a piece of non-kosher meat is placed in a pot of cooking vegetables and then removed. No meat remains in the pot of vegetables, but the flavor of the non-kosher meat is clearly discernible. The vegetables are prohibited on the basis of <i>ta'am ke-ikkar</i>, i.e., the prohibition against eating food endowed with the "taste" of a non-kosher substance.
  <i>Hakirah</i>: Are the vegetables prohibited because of a new prohibition against <i>ta'am</i>, i.e., a superimposed prohibition forbidding the taste or flavor of a non-kosher substance that is quite distinct from the antecedent prohibition proscribing the non-kosher food itself? Or is the prohibition against partaking of the <i>ta'am</i> of a prohibited substance simply a novel expression of the underlying prohibition against eating a non-kosher food? But, comes the objection, if <i>ta'am ke-ikkar</i> is really part and parcel of the original prohibition why is it formulated as a separate and distinct prohibition? Answer: Were the basic prohibition not to have been supplemented by the principle of <i>ta'am ke-ikkar</i> the vegetables would be entirely permissible. Biblical law provides for nullification of prohibited foods by adulteration of the forbidden food with kosher food of even a slightly more than equal quantity. The principle of <i>bittul be-rov</i>, in terms of its own canons, would apply to adulteration of any food product even if the flavor of the non-kosher food may be detected in the mixture. However, a new rule in the form of <i>ta'am ke-ikkar</i> renders the mixture impermissible so long as the taste of the non-kosher food is discernible (generally unless the kosher elements are sixty times as great). Accordingly, the principle of <i>ta'am ke-ikkar</i> may not constitute a novel prohibition at all but may merely be a limitation upon, or an exception to, the rule of <i>bittul be-rov</i> which has the effect of causing the underlying prohibition to reassert itself.
  The conceptual distinction between the two formulations is clear, but is there any halakhic difference that flows therefrom? [The thrust of such a question I would term "halakhic positivism," i.e., the ultimate meaning of a <i>ḥakirah</i> is its verification in a concrete <i>nafka minah</i>, just as logical positivism insists that the meaning of a proposition is its mode of verification.]
  The difference becomes manifest with regard to the prohibition against <i>ever min ha-ḥai</i> as it applies to Noahides and to Jews providing Noahides with food. Are food products containing the flavor of <i>ever min ha-ḥai</i> forbidden to Noahides? <i>Ever min ha-ḥai</i> is prohibited to gentiles but the principle of <i>ta'am ke-ikkar</i> is not incorporated in the Noahide Code. Accordingly, if <i>ta'am ke-ikkar</i> is a novel and distinct prohibition, vegetables in which <i>ever min ha-ḥai</i> has been steeped would be permitted to Noahides, although, to be sure, there can be no flavor of <i>ever min ha-ḥai</i> without the presence of at least a minute quantity of the prohibited substance. The quantity of the prohibited foodstuff is so infinitesimal as to be non-existent for purposes of Halakhah: <i>De minimis non curat lex</i> (the law does not concern itself with trifles). But, if it is understood that halakhically recognized particles of matter exist wherever flavor is detectable and if <i>ta'am ke-ikkar</i> is understood as merely the recission of what would otherwise be permitted by invocation of <i>bittul be-rov</i>, the vegetables remain prohibited to Noahides because the principle of <i>bittul be-rov</i> is not one of the canons of the Noahide Code.
  <i>Teshuvot Hatam Sofer, Yoreh De'ah</i> no. 19, s.v. <i>ve-adayin</i>, citing a comment of Rashi, <i>Hullin</i> 98b, adopts the latter position in cryptically ruling that "taste" of <i>ever min ha-ḥai</i> is forbidden to Noahides because the principle of <i>bittul</i> is not applicable to them.19<i class="footnote">Cf., however, <i>Noda bi-Yehudah, Mahadurah Tinyanah</i>, no. 45; <i>Melo ha-Ro‘im, erekh ben Noah</i>, sec. 21; <i>Sefer ha-Makneh</i>, I, no. 8, sec. 1; <i>Minḥat Ḥinnukh</i>, no. 5; and <i>Ḥiddushei Rabbeinu Ḥayyim ha-Levi al ha-Rambam, Hilkhot Ma‘aseh ha-Korbanot</i> 10:12 and <i>Hilkhot Ma’akhalot Assurot</i> 9:9.</i>
  Another much earlier example having a novel modern-day ramification is found in a responsum of an early eighteenth-century authority, R. Ezekiel Katzenellenbogen, who served as the immediate predecessor of R. Yonatan Eybeschutz as chief rabbi of Altona.
  A young Jew who lived in the city of Apt was accused of having frequented a Moslem prostitute. The man was imprisoned and faced death or forced apostasy. There was, however, a possibility of securing his release upon payment of an exorbitant sum of money. The leaders of the community turned to Maharam of Lublin with a query concerning whether, given the totality of the circumstances, they were obligated to secure his release by virtue of the <i>mizvah</i> of "ransoming captives" and, if so, whether they were obligated to expend even an exorbitant sum in order to rescue him. Maharam of Lublin, <i>Teshuvot Maharam Lublin</i>, no. 15, responded that the young man had the status of a "captive" whom it is a <i>mizvah</i> to ransom but that, despite the danger to his life, "it appears obvious to me that there is no obligation to pay a ransom greater than his value; nor do I know from whence it would enter one's mind that there is an obligation to ransom him by paying more than his value."20<i class="footnote">The statement of <i>Pitḥei Teshuvah, Yoreh De‘ah</i> 262:4, to the effect that Maharam ruled that the townspeople should expend even an exorbitant sum because of the consideration of <i>ḥillul ha-Shem</i> is inaccurate.</i>
  Maharam's ruling became the object of severe criticism. The Mishnah, <i>Gittin</i> 45a, does indeed declare that captives should not be redeemed for more than their value. However, <i>Tosafot, Gittin</i> 58a, indicate that the Mishnah refers only to captives who are held solely for ransom. If, however, the captives are threatened with death they must be ransomed even if the sum required to secure their release is greater than their value. Maharam of Lublin was accused of having ruled as he did because he had overlooked the comments of <i>Tosafot</i>.
  R. Ezekiel Katzenellenbogen, <i>Teshuvot Knesset Yeḥezkel</i>, no. 38, focuses attention upon the discussion of the Gemara, <i>Gittin</i> 45a. The Gemara elucidates the rationale underlying the limitation placed by the Mishnah upon the sum that may be expended for the ransom of a captive. The Gemara posits two alternative explanations: (1) payment of a larger sum would constitute an undue burden upon the community; (2) payment of excessive ransom would encourage future kidnapping of Jews in order that exorbitant sums might be demanded for their release.
  <i>Knesset Yeḥezkel</i> notes that <i>Tosafot, Gittin</i> 58a, in addition to their comment concerning captives whose lives are endangered, offer an alternative solution to the problem addressed in that comment. <i>Tosafot</i> advance the position that even an exorbitant sum may be paid to secure the release of a renowned scholar. The latter distinction, argues <i>Knesset Yeḥezkel</i>, is not at all cogent if a maximum limit was established because of the burden the ransom represents to the community. All individuals are equal insofar as obligations of charity are concerned. Hence, contends <i>Knesset Yeḥezkel</i>, there is no reason why a community should assume an excessive burden for the ransom of a scholar. If, however, the limit was set in order not to encourage the kidnapping of Jews and holding them for excessive ransom, the exception made for a scholar of renown is readily perceived: Persons of such stature are few and far between. Rarely will gentiles have the opportunity to kidnap such a personage. The captor, knowing full well that the huge sum they received was forthcoming only because of the scholarly attainments of their captive, will not be encouraged to engage in a similar enterprise in the future.21<i class="footnote">As reported by R. Shlomoh Luria, <i>Yam shel Shlomoh, Gittin</i> 4:66, Maharam of Rothenburg did not permit himself to be ransomed for an exorbitant sum. It need not, however, be assumed that Maharam of Rothenburg disagreed with the position of <i>Knesset Yeḥezkel</i>. If popular accounts of the imprisonment of Maharam of Rothenburg are accurate in their report of the commodious circumstances of his confinement, Maharam of Rothenburg may not have regarded himself as a “captive” to whom the <i>miẓvah</i> of <i>pidyon shevuyim</i> pertains. If so, it is probable that the reason why, when first imprisoned, Maharam of Rothenberg reportedly cooperated in a failed attempt to raise the necessary revenue was that, at that time, he had no way of knowing that he would not be oppressed in captivity.</i>
  By the same token, argues <i>Knesset Yeḥezkel</i>, the alternative resolution offered by <i>Tosafot</i> in positing an exclusion in instances of a threat to the life of a captive is not at all cogent if the concern is not to encourage future acts of a like nature. Once kidnappers become aware of the fact that unlimited sums are available for the ransom of Jews threatened with death they will quickly realize that they can extort vast sums simply by threatening to execute their captives. That position, contends <i>Knesset Yeḥezkel</i>, can be understood only if it is predicated upon the consideration that a limit was placed upon the ransom to be paid because of consideration of communal burden. A limitation based upon fear of creating onerous financial difficulties for a community is cogent with regard to establishing a limitation upon obligations of charity. However, such considerations are not germane with regard to the rescue of a human life. Thus, each of the two resolutions offered is designed to satisfy only one of the respective rationales advanced by the Gemara.22<i class="footnote"><i>Knesset Yeḥezkel</i> also notes that in their comments on <i>Gittin</i> 45a, s.v. <i>de-lo legeivu, Tosafot</i> fail to posit an exception in cases of danger to life because those comments are offered in explication of the discouragement rationale as is clearly indicated in the caption preceeding those comments. R. Jacob Emden’s derogatory remarks regarding R. Ezekiel Katzenellenbogen, <i>Megillat Sefer</i>, ed. David Kahane (Warsaw, 5657), pp. 121-140, and indeed much of the material in that work, should be taken with several grains of salt. In particular, R. Jacob Emden’s comments regarding Rabbi Katzenellenbogen, <i>ibid</i>., pp. 134-135, are clearly at variance with the intellectual acumen displayed in the responsum herein discussed.</i>
  Shulḥan Arukh, Yoreh De'ah 252:4, rules that a prominent scholar may be ransomed even for an extravagant sum but makes no mention of a similar exception in instances in which the life of the captive is in jeopardy. According to <i>Knesset Yeḥezkel</i>'s analysis, <i>Shulḥan Arukh</i>'s position flows directly from his categorization of the limit placed upon the ransom to be paid as designed to discourage future kidnapping. It may be further noted that Rambam, <i>Hilkhot Matnot Aniyim</i> 8:12, codifies the same explanation in limiting the ransom to be paid to the value of the captive despite the fact that earlier, in <i>Hilkhot Matnot Aniyim</i> 8:15, he speaks of such captives as being in danger of losing their lives.
  <i>Knesset Yeḥezkel</i>'s keen analysis of <i>Tosafot</i>'s comment not only illustrates the role of analytic prowess in halakhic decision-making but also reflects a facet of <i>pikuaḥ nefesh</i> having far-reaching implications.
  <i>Knesset Yeḥezkel</i> takes it for granted that there is no obligation to rescue a captive from certain death if the result will be seizure and ultimate execution of others. This is his position despite the fact that the danger to the present captive is imminent whereas the danger to others lies sometime in the future. The clear implication is that future danger, at least when it is a matter of certainty, is to be equated with present danger. Hence, rescue of a person presently endangered should not to be undertaken if it will result in the loss of a greater number of lives at some future time.
  It is precisely that issue that is involved in the controversy concerning divulging a diagnosis of AIDS to the victim's spouse or sexual partner. Failure to divulge such information results in an ongoing danger to an innocent sexual partner. Breach of confidentiality, it is argued, will have a chilling effect upon others who, fearing that a positive diagnosis will be divulged to their spouses, will refuse to be tested for the presence of the disease. If that does indeed prove to be the case, the result will be the loss of an even greater number of lives. Assuming that such a fear would inhibit a significant number of AIDS victims from availing themselves of testing and treatment — a matter which I believe has yet to be empirically demonstrated — the argument for non-disclosure finds significant support in <i>Knesset Yeḥezkel</i>'s discussion of <i>Tosafot</i>'s comments.23<i class="footnote">For a fuller discussion of the halakhic issue involved see this writer’s <i>Bioethical Dilemmas: A Jewish Perspective</i>, I (Hoboken, 1998), 152–159.</i> Although evidence that disclosure of a diagnosis of AIDS would result in the loss of a greater number of lives is lacking, the underlying principle, i.e., that prevention of present loss of life should not be undertaken if the result will be greater loss of life in the future, is applicable in a host of other situations.24<i class="footnote">For some examples see <i>Bioethical Dilemmas</i>, I, 156–157.</i>
  In our own day, resolution of one vexing religio-social problem hinges upon analytic categorization of a particular <i>ḥazakah</i>. Do people who have entered into a civil marriage or who have been married under Reform or Conservative auspices without benefit of halakhically qualified witnesses require a religious divorce for dissolution of their relationship? In principle, Jewish law recognizes the equivalent of common law marriage on the basis of <i>ḥazakah ein adam oseh be'ilato be'ilat zenut</i>, i.e., a halakhic presumption that people do not wish to engage in fornication and therefore, when the option is available, cohabit with intent to establish a marital relationship. The facile understanding of that statement is that the <i>ḥazakah</i> is but an example or instantiation of a general <i>ḥezkat kashrut</i>, i.e., people are, and desire to be, law-abiding. Therefore they seek marriage rather than an illicit relationship. But what of a person whose lifestyle and general comportment betray a total lack of fidelity to Halakhah? It would stand to reason that, for them, no such presumption exists with regard to marriage any more so than with regard to other aspects of their behavior. So concluded R. Moshe Feinstein.25<i class="footnote"><i>Iggerot Mosheh, Even ha-Ezer</i>, I, nos. 74-76 and <i>Even ha-Ezer</i>, II, no. 19. See also, <i>Iggerot Mosheh, Even ha-Ezer</i>, III, no. 25.</i>
  R. Yosef Eliyahu Henkin, however, reached a totally different conclusion on the basis of his analysis of the same <i>ḥazakah</i>. For R. Henkin the <i>ḥazakah</i> was not at all an instance of <i>ḥezkat kashrut</i> but a <i>ḥezkat hanhagah</i>, a matter of comportment rooted in human psychology and reflective of the essence of marriage. The essence of marriage, argued R. Henkin, is a woman's entry into an exclusive conjugal relationship. The human male, by operation of his psyche, seeks exclusivity in his sexual partner and will go to great lengths to prevent others from seeking the sexual favors of his partner. Whenever a male and female enter into that type of relationship the effect is matrimony whether or not such a formal institution is either sought or acknowledged. Accordingly, R. Henkin ruled that parties to any such relationship require a <i>get</i> for its termination,26<i class="footnote"><i>Perushei Ivra</i>, chaps. 3-5.</i> while R. Moshe Feinstein ruled that in such circumstances a <i>get</i> was not needed. The controversy in this grave area of family law hinges entirely upon the <i>lomdut</i> underlying the <i>ḥazakah ein adam oseh be'ilato be'ilat zenut</i>.
  These examples are taken more or less at random as illustrations of the effect of <i>lomdut</i> upon <i>psak</i> over a period of several centuries. It should be quite evident that <i>lomdut</i> did not originate in late nineteenth-century Lithuania. To be sure, the <i>lomdut</i> of Brisk was not the <i>lomdut</i> of Telshe; the responsa of R. Akiva Eger are markedly different in style from those of <i>Hatam Sofer</i>. Assuredly, among those engaged in the analytic dialectic of Halakhah there are differences of style, language, vocabulary, expression and even of insights and thought processes.27<i class="footnote">R. Shlomoh Yosef Zevin’s <i>Ishim ve-Shitot</i> is a collection of stunning intellectual biographies of various foremost late nineteenth- and early twentieth-century rabbinic scholars. Rabbi Zevin brilliantly employs representative vignettes of analytic thinking in an emblematic portrayal of the unique thought processes of each of those <i>lomdim</i>.</i> However, when all is said and done, halakhic analysis is either cogent or it is not. Cogency is immanent in the analysis, regardless of variations of language, style and flavor.28<i class="footnote">At the risk of flippancy, it may be noted that the purveyor of a popular brand of ice cream advertises that the company’s product is available in twenty-eight flavors. Chocolate ice cream does not have the same taste as vanilla ice cream; the flavor of butterscotch is quite different from that of pistachio. But the product is essentially the same; any dissimilarity is only a matter of taste. Ice cream has the same nutritional value regardless of the flavor.</i>
  Of course, some scholars will experience and give voice to insightful observations that elude others. Given the nature of the human intellect, there may be, and indeed there often is, disagreement with regard to the accuracy of such observations and the cogency of analytic formulations. Conflicting analyses of <i>gedolei hora'ah</i> are well within the parameters of <i>elu ve-elu divrei Elokim ḥayyim</i>.29<i class="footnote">Nevertheless, even a consummate <i>posek</i> may prove to be less than infallible. At times, a theoretical analysis, no matter how cogent and enticing, may simply be contradicted by an overlooked source. The prowess of an <i>oker harim</i> can be validly employed only when accompanied by the knowledge of a <i>sinai</i>. One example will suffice.In the course of a now classic responsum discussing the permissibility of blended whiskey containing a small but significant quantity of wine, R. Moshe Feinstein, <i>Iggerot Mosheh, Yoreh De‘ah</i>, I, no. 62, in effect, formulates a <i>ḥakirah</i>: Is wine nullified in six parts of water (rather than sixty) because, although the taste of wine remains present, it serves to ruin rather than to enhance the water or because the taste that is perceived is no longer the taste of wine? <i>Iggerot Mosheh</i> seeks to demonstrate that it is the latter rationale that forms the basis of the relaxation governing nullification of wine. A necessary concomitant of that hypothesis is that wine can never have the status of a condiment that remains unnullified even in a mixture sixty times as great. A contradictory statement by Rambam in his <i>Commentary on the Mishnah</i>, <i>Orlah</i> 2:10, indicating that wine may be a pungent agent, is dismissed as a copyist’s error. As a corollary, <i>Iggerot Mosheh</i> then formulates the theory that the residue of the grapes from which wine is pressed is prohibited, not because it absorbs non-kosher wine, but by virtue of an entirely independent prohibition. That analysis follows from <i>Iggerot Mosheh</i>’s premise that the “taste” of wine can never survive adulteration with a substance six times as great.Alas, <i>Darkei Mosheh, Yoreh De‘ah</i> 114, citing an early-day authority, specifically refers to the pungency of the “wine” rather than the residue <i>per se</i> as responsible for rendering the food with which it is mixed non-kosher. <i>Be’er ha-Golah, ad locum</i>, cites a comment of <i>Bet Yosef</i> to the same effect. That rationale is also reflected in the comment of <i>Shakh, Yoreh De‘ah</i> 98:31. <i>Iggerot Mosheh</i>’s <i>lomdut</i> is appealing but, in this case, appears to be contradicted by the sources.Cf., R. Yitzchak Weisz, <i>Teshuvot Minḥat Yiẓḥak</i>, II, no. 28, who cites these sources but does not refer to <i>Iggerot Mosheh</i>’s <i>ḥiddush. Minḥat Yiẓḥak</i> nevertheless finds grounds tentatively to permit blended whiskey on the basis of an entirely different analytic consideration.</i> Not so with the patent errors of a <i>talmid she-lo higi'a le-hora'ah</i>. Just as correct analysis is necessary for correct <i>psak</i>, faulty analysis necessarily results in faulty <i>psak</i>. Failure to appreciate the <i>lomdut</i> or conceptual subtlety of a talmudic aphorism can lead to serious confusion. In yeshiva circles the caricature of <i>lomdut</i> gone hay-wire is the application of the principle <i>kelutah ke-mi she-huneḥah damya</i> in ruling that a pot of milk over which a chicken has flown is thereby rendered non-kosher. Even a school child would have no difficulty in recognizing that <i>kelutah ke-mi she-huneḥah damya</i> is a "meta"-physical constructor, as some would prefer, a legal fiction, whereas an admixture of milk and meat depends upon the quite physical, and indeed sensual, attribute of taste, or in the Gemara's own formulation, "<i>derekh bishul asrah Torah</i>."
  In other instances, incongruous analysis is much less obvious. Elsewhere,30<i class="footnote"><i>Tradition</i>, vol. 33, no. 1 (Fall, 1998), pp. 102ff.</i> I have had occasion to point out that the gross distortion of Halakhah that has been committed in some quarters in groundlessly declaring a state of <i>kiddushei ta'ut</i> and issuing annulments is based upon a misunderstanding of the principle <i>tav le-meitav tan du mi-le-meitav armelu</i> (better to dwell as two than to dwell alone). The proposition that women prefer marriage to persons suffering from certain physical defects over spinsterhood is cited by the Gemara, <i>Bava Kamma</i> 110b, in explaining why levirate obligations exist even when the brother-in-law suffers from such a condition.
  In recent decades the argument has been made that in the modern era, in light of changed economic conditions making it possible for women to earn their own livelihood, different social attitudes toward single women, the higher regard and dignity in which women are held, as well as women's own heightened sense of esteem and self-worth, the talmudic vision of women has been rendered obsolete, and continues the argument, halakhic provisions based upon the presumption of <i>tav le-meitav</i> must be regarded as nugatory. Years ago, R. Joseph B. Soloveitchik declared that rejection of <i>Hazal</i>'s application of <i>tav le-meitav</i> "borders… on the heretical."31<i class="footnote">See lecture transcribed by Dr. Isaac Hersch, <i>Light</i>, 17 Kislev 5736, p. 13, reprinted in the <i>Jewish Press</i>, October 16, 1998, p. 22.</i> To my mind, the more fundamental point is that such rejection does not border upon, but is squarely within, the boundaries of <i>am ha'arazut</i>. Nonsense is nonsense; theological analysis of nonsense can only create an aura of cogency where none exists.
  The notion that sociological, psychological, economic and attitudinal effects and/or values of the talmudic period were different from those of our day is not at all supported by the aphorism. Writing in a different context, R. Moshe Feinstein32<i class="footnote"><i>Iggerot Mosheh, Even ha-Ezer</i>, 1, no. 79, <i>anaf</i> 1.</i> marshals comments of the Gemara as well as observations of <i>Tosafot</i> indicating that women of the talmudic period relish the prospect of marriage to a <i>mukeh sheḥin</i> no more so than do their progeny in our day. <i>Bet ha-Levi</i>33<i class="footnote">III, no. 3.</i> demonstrates that the Gemara, in context, is seeking grounds for positing an implied condition upon which the marriage may be presumed to be predicated, <i>viz</i>., that if the result would be a levirate relationship with a <i>mukeh sheḥin</i> the marriage is to be nullified retroactively. For such an unstated condition to rise to the level of an implied condition it must be a universally recognized presumption (<i>anan sahadi</i>). Since some women do consent to give themselves in marriage to <i>mukei sheḥin</i> because <i>tav le-meitav tan du</i>, i.e., those women prefer a <i>mukeh sheḥin</i> to spinsterhood, such a presumption is clearly not universal. Hence, the suggestion that the original marriage was conditional in nature is firmly rebutted.
  "<i>Lomdut</i>" is required in order to recognize that (1) a theory for negating the levirate obligation is absolutely necessary even if <i>tav le-meitav</i> is not accepted as cogent; (2) that the only available theory is conditional marriage; and, finally, (3) that, in order to defeat the argument, <i>tav le-meitav</i> need not be posited as a universal principle. Ockham's razor applies to talmudic dialectic no less than to metaphysics. The Gemara does not posit theorems, postulate hypotheses or advance theories unless necessary for a halakhic contingency and, when it does, the theorem, postulate or hypothesis is crafted narrowly to fit the purpose.
  A student recently informed me that when he had interviewed for a rabbinic position he was asked, "And who will be your <i>posek</i>?" He was quite perturbed and told me that when he had answered, "I will," he felt that the committee members viewed him as an arrogant whippersnapper. What he had meant was: I shall <i>pasken</i> and if there is a complicated matter I will decide who is the expert in that particular area with whom I wish to consult. That is as it should be. A <i>rav</i> should be a <i>moreh hora'ah</i> and <i>ba'alei battim</i> should expect no less.
  Warmth, tact, dignity, vision, oratorical talent, administrative skills and many other qualities are necessary to assure a rabbi's effectiveness. But a rabbi who is not qualified to be a <i>moreh hora'ah</i> cannot be, and should not claim to be, a <i>rav</i>. And without the analytic skills of a <i>lamdan</i> it is not possible to function as a <i>moreh hora'ah. Ergo</i>, a <i>rav</i>, to merit the appelation, must be a <i>lamdan</i>.
  <i>"Now these are the ordinances which you shall set before them. "It should not enter your mind to say, "I shall teach them a section of Torah or a halakhah twice or thrice… but I shall not trouble myself to cause them to understand the reasons for the matter and its explanation…."</i>
  RASHI, EXODUS 21:1
  
  Chapter I Litigation and Arbitration before Non Jews
  
  <i>It is forbidden for us to present our lawsuits before the courts of gentiles for they have no portion in our faith</i>.
  ZOHAR, EXODUS 257a
  I. The Prohibition
  1. The Prohibition and the Vitality of Jewish Jurisprudence
  A colleague, who on occasion teaches a course in Roman law, claims that the following incident actually occurred. On the last day of the semester, following the usual perfunctory remarks concerning the final examination, a student raised his hand. Upon being recognized, the student asked, "Are we responsible only for the material in the textbook or are we responsible for recent cases as well?" The classroom erupted in laughter. The question, which might have been appropriate in any other law school class, was discordant in a class on Roman law. The Roman empire has long since ceased to exist and abrogation of Roman law followed closely in the wake of its dissolution. It is, of course, ludicrous to speak of "recent cases" in conjunction with a system of law that, despite its continued and profound influence over other systems of law, has for many centuries not been sovereign in any jurisdiction.
  Such a question, if asked of a professor teaching Jewish law, would not be greeted with derision despite the fact that Jewish law has not been the law of any sovereign jurisdiction for two millennia. Even with the establishment of the State of Israel, Jewish law is the law of that jurisdiction only with regard to matters of marriage and divorce. Yet Jewish law is not only alive and well but is constantly applied in novel situations. That is true not only of ritual law but also of the jurisprudence of Jewish law. Case material regarding such matters is as recent as the morning mail which, virtually on a daily basis, brings Torah journals containing learned articles devoted to myriad aspects of Jewish law. Despite the fact that nowhere is Jewish jurisprudence the law of the land, despite the fact that rabbinical tribunals do not enjoy police power and cannot compel appearance, Jewish law has not only survived but remains healthy and robust.
  There are a variety of socio-religious factors that serve to explain the disparate fate of Jewish and Roman law. Not the least significant of those factors is the fact that Jews feel themselves duty-bound to abide by the provisions of Jewish law not only with regard to matters of ritual and religious observance but with regard to their commercial and interpersonal affairs as well. Judaism is more than a religion concerned with the worship and adoration of the Deity; it is a religion of law governing every aspect of human life, including the most mundane.
  Jewish law is transnational and hence dependent upon neither political sovereignty nor judicial autonomy. It is binding as a matter of conscience. Judaism expects its adherents voluntarily to govern themselves by Jewish law in all aspect of their lives. In interpersonal, financial and commercial matters it requires them to be bound by the provisions of <i>Hoshen Mishpat</i> rather than by the provisions of the legal code of the country in which they may reside. The host country is usually quite content to allow its citizens to deal with one another according to any principles they choose and to settle their own disputes among themselves. Generally speaking, the State will not impose itself and its laws unless asked to do so through an appeal to its judicial system. The halakhic principle <i>dina de-malkhuta dina</i> (the law of the land is the law) does not embody the notion that Torah law is superseded by civil law1<i class="footnote">See <i>Teshuvot ha-Rashba</i> cited by <i>Bet Yosef, Ḥoshen Mishpat</i> 26; Rema, <i>Ḥoshen Mishpat</i> 369:11; Shakh, <i>Ḥoshen Mishpat</i> 73:39; and <i>Ḥazon Ish, Sanhedrin, likkutim</i> 3:26-27. Cf., R. Isaac ha-Levi Herzog, <i>Teḥukah le-Yisra’el, al Pi ha-Torah</i>, II (Jerusalem, 5749), p. 107f, p. 117f. and p. 120f.</i> and hence the principle is entirely irrelevant when the State itself does not insist upon adherence to the provisions of its civil code. Indeed, it is the overwhelming consensus of rabbinic opinion that Jewish law would not recognize the applicability of <i>dina de-malkhuta dina</i> with regard to such matters even if the State were to insist that its nationals conduct their affairs solely in accordance with civil law and resolve their disputes only in a secular judicial forum. Judaism does not recognize the State's authority to compel violation of biblical law regardless of whether such law treats of religious or jurisprudential matters.2<i class="footnote">See the list of sources cited by R. Ezra Batzri, <i>Dinei Mamonot</i>, I (Jerusalem, 5734), 348, note 13. See also Rabbi Herzog, <i>Teḥukah le-Yisra’el</i>, II, p. 118.</i>
  These demands made by Jewish law upon adherents to Judaism reflect the fundamental belief that Jewish law is divine in origin and that man does not enjoy the right to supplant divine law with a legal system that is human in origin. The principles recorded in both the Written and the Oral Law are perforce different from those that are the product of human intellect. <i>Vis-à-vis</i> divine law, human law is depicted in rabbinic sources as foreign and alien. Given a choice of legal forums, acceptance of the secular is tantamount to rejection of the divine. To accept the product of human intellect as superior to the divine is idolatrous; voluntarily to subject one's financial and commercial dealings to the governance of a secular legal system rather than to that of the Torah creates at least the impression that the litigant acknowledges the superiority of man-made law.
  The extent to which Jews abided by the provisions of Jewish jurisprudence and were willing to forego recourse to non-Jewish courts even when a litigant would have found it financially advantageous to do so is reflected in a statement of R. Chaim Pelaggi, <i>Masa Hayyim, ma'arekhet dalet</i>, no. 23, in which he reports that from his earliest youth and throughout his life in the city of Izmir he never heard of an instance in which a person sought to enforce a claim to a share in the estate of a deceased to which he or she was not entitled according to the laws of the Torah, despite the fact that such a claim would have been routinely recognized by the Turkish courts of the time. One contemporary writer has remarked that "even today, among the orthodox everywhere from New York to Bombay, it was considered a disgrace for a Jew to summon a fellow Jew before the courts of the land."3<i class="footnote">George Horowitz, <i>The Spirit of Jewish Law</i> (New York, 1973), p. 651.</i> This is not to say that instinctive obedience to Halakhah in all its facets was uniform at all times and in all places. In some locales it was necessary to reinforce the statutory prohibition against seeking redress in a secular judicial forum, particularly with regard to matters of inheritance, by issuing formal bans against such conduct.4<i class="footnote">See <i>Teshuvot Maharashdam, Even ha-Ezer</i>, no. 131.</i> Rabbi Jacob Kuli, <i>Yalkut Me-am Lo'ez</i>, Numbers 27:11, found it necessary to warn that, in the long run, not only will a person fail to profit from a recovery in a civil court, but he will be punished by loss of his fortune as well.
  To our shame, in many circles within the contemporary Jewish community, these provisions of Jewish law are honored in the breach. In a relatively recent treatise, a member of an Israeli rabbinic court, R. Ezra Batzri, <i>Dinei Mamonot</i>, III (Jerusalem, 5740), 209, note 1, finds it necessary to repeat the salient aspects of the prohibition against recourse to secular courts in conjunction with his discussion of inheritance despite the fact that he had already discussed them in detail in an earlier volume of the same work. Rabbi Batzri states he has found this aspect of Jewish law to be widely disregarded "either because people find it difficult to forego the benefit granted them [in a secular court] or [because] they err [in assuming] that there is no prohibition whatsoever with regard to this."
  2. The Biblical Source
  The words "<i>Eleh ha-mishpatim asher tasim lifneihem</i>" (Exodus 21:1) are immediately recognized as the opening sentence of the Torah reading of the <i>Shabbat</i> known as <i>Parashat Mishpatim</i> and identified in that manner because of the initial noun of the verse. The very division of the biblical text into weekly segments in which that verse introduces one such portion indicates that the verse in question serves as a preamble to the immediately following section. Accordingly, the verse is rendered in translation as "These are the statutes that you shall place before them." As an introduction to the verses that follow, the term "<i>mishpatim</i>" must connote the subject matter that ensues, i.e., it serves as a description of the salient provisions of biblical jurisprudence presented in the immediately following section. Accordingly, the word "<i>mishpatim</i>" is understood as meaning "laws" or "statutes." Moses is commanded by God to transmit a host of commandments pertaining to torts and bailments as well as to sundry other financial matters and is informed that what is about to be imparted to him is in the nature of <i>mishpatim</i>, i.e., rules necessary for the government of society.
  Those laws are to be "placed" or "set" before the community of Israel. The persons to be bound by those statutes are not explicitly named; they are referred to solely by employment of the term "<i>lifneihem</i>—before them," a term incorporating the pronoun "them." Students of the English language are taught in the primary grades that use of a pronoun that is not governed by an antecedent noun is strictly <i>verboten</i>. Not so with regard to biblical Hebrew. Not infrequently, Scripture relies upon the reader's acumen in correctly identifying the person, place or thing to which reference is made by the employment of a simple pronoun.
  Talmudic exegesis, while it certainly neither denies nor contradicts the plain meaning of the text, assigns an entirely different meaning to this verse. The talmudic understanding of the passage is based upon two linguistic ambiguities: (1) The term "<i>mishpat</i>," of which <i>mishpatim</i> is the plural, is a homonym. It may refer to a "law" or it may connote a judgment or sentence; it may also connote a lawsuit or a judicial proceeding. (2) The term "<i>lifneihem</i>" may refer to the otherwise unnamed people of Israel or it may refer to the individuals named in the immediately preceding biblical section,5<i class="footnote">See Rashi, <i>Gittin</i> 88b, s.v. <i>lifneihem</i>; cf., the somewhat variant explanation of <i>Tosafot, ad locum</i>, s.v. <i>lifneihem</i>.</i> <i>viz</i>., the judges appointed by Moses. Seizing upon both ambiguities, talmudic exegesis renders the verse as "And these are the lawsuits which you shall place before them [the judges]."
  Understood in this vein, the passage, although couched as a positive exhortation, serves to establish a ban against having recourse to other judicial bodies. Lawsuits must be pursued before the designated judges and before no others. This interpretation of the verse is formulated by the Gemara, <i>Gittin</i> 88b, in the form of two separate injunctions: " 'Before them'—but not before gentile courts;" and " 'Before them'—but not before laymen (<i>hedyotot</i>)," i.e., not before individuals lacking ordination as judges.
  Both exclusions are readily understandable. The judges designated by Moses were Jews who were charged with rendering judgment in accordance with the laws transmitted by Moses. The Israelites were commanded to eschew gentile courts and to appear before those judges for the purpose of adjudicating their disputes on the basis of the laws of the Torah. The judges designated by Moses derived their authority from their appointment to judicial office. That appointment constituted their ordination as judges and empowered them to designate successors by means of conferring ordination upon others. Thus, in commanding appearance "before them," i.e., before the judges ordained by Moses, the Torah excludes appearance before unordained and hence unqualified judges.
  Ordination carrying with it license to serve as a member of a court authorized to render judgment in both criminal and civil cases was passed on from generation to generation until the time of the Roman persecution in the late tana'itic period. As part of a campaign designed to eradicate Judaism as a religion, the Roman conquerors threatened to impose capital punishment upon any person conferring ordination and upon the ordainee as well and also warned that collective punishment would be inflicted upon all inhabitants of any locale in which the ceremony was held.6<i class="footnote">See <i>Sanhedrin</i> 14a.</i> Despite heroic efforts to preserve the transmission of ordination, and with it the judicial system dependent upon ordination, the Romans eventually succeeded in that oppressive endeavor and ordination lapsed in the middle of the fourth century. Accordingly, imposition of statutory capital punishment has been halakhically precluded since that time.7<i class="footnote">Capital punishment is presently precluded for other reasons as well. Statutory capital punishment may be imposed only when the sacrificial ritual is regularly performed and only when the Great Sanhedrin sits in its chambers within the Temple precincts. See Rambam, Hilkhot Sanhedrin 14:11.</i> Nevertheless, civil matters, at least to the extent that they are common and usual, may be adjudicated. The Gemara, <i>Gittin</i> 88b, justifies this practice on the basis of the principle of agency in declaring that present-day rabbinic judges merely serve as the agents of earlier judges in whom the requisite authority was vested.8<i class="footnote">For a response to the objection that agency cannot survive the death of the principal, see <i>Teshuvot Ḥatam Sofer, Oraḥ Ḥayyim</i>, no. 84.</i> Thus, although the prohibition against having recourse to gentile courts remains fully in effect, the prohibition against adjudication of disputes by unordained laymen is, in practice, not operative.
  There is indeed an even more fundamental difference between the respective ambits of these two prohibitions. As recorded by Shulḥan Arukh, Hoshen Mishpat 26:1, recourse to a non-Jewish court is prohibited even with the consent of both litigants.9<i class="footnote">For a discussion of variant conflicting sources see Eliav Shochetman, <i>Teḥumin</i>, XIII (5752-53), 346-349 and especially p. 347, note 43.</i> However, if both parties agree, they are permitted to have their dispute heard by a tribunal composed of laymen.10<i class="footnote">This distinction between gentile courts and lay judges is explicitly formulated by Ramban in his commentary on the Bible, Exodus 21:1. For a discussion of the seemingly contradictory view of Ran, <i>Sanhedrin</i> 2b, see R. Judah Siegal, <i>Ha-Torah ve-ha-Medinah</i>, VII-VIII (5715-5717), p. 87 and the notes appended to that article by R. Saul Israeli, <i>ibid</i>., p. 80, note 7.</i> The exclusion of laymen from the judiciary is not absolute; laymen are simply denied the power to compel appearance before them with the result that litigants who willingly submit to their authority commit no transgression. However, litigants do not have the right to accept the authority of a gentile court and, should they do so, they incur a serious transgression.
  The disqualification of gentile courts and the disqualification of lay judges both proceed from the single phrase "before them." Nevertheless, there is a disparity between those two disqualifications and that disparity illuminates the need for the formulation of two separate exclusions, <i>viz</i>., " 'Before them,' but not before courts of the gentiles" and " 'Before them,' but not before laymen." Since, assuredly, gentiles are not ordained and hence are ostensibly subsumed in the broader exclusion of laymen, the need for a separate exclusion is not immediately clear. However, in light of the foregoing distinction, the problem is readily resolved. Exclusion of laymen serves only to deprive unordained judges of coercive power. The additional exclusion of gentiles yields a prohibition against even voluntary acceptance of their judicial authority.
  Although, in light of that distinction, the halakhic redundancy of the dual formulation is explainable, an underlying exegetical problem remains. If the phrase <i>"lifneihem"</i> serves to establish an inferential negation in the nature of a prohibition, the prohibition should logically include laymen no less so than gentiles. If, however, the phrase serves only to establish a qualification limiting the power of judicial coercion, it would appear that there is no basis for a prohibition attendant upon voluntary acceptance even of gentile courts. It would stand to reason that the two exclusions, derived as they are from a single phrase, should be identical in application.11<i class="footnote">Cf., R. Naphtali Zevi Judah Berlin, <i>Ha‘amek She’elah, She’iltot de-Rav Aḥa’i Ga’on, she’ilta</i> 58, sec. 1, who endeavors to resolve the problem.</i>
  3. Concerns Reflected in the Prohibition
  It is evident that the Sages regarded the verse "<i>Eleh ha-mishpatim asher tasim lifneihem</i>" as establishing two distinct and disparate principles of law. Each of those principles is grounded upon a separate concern. In codifying the prohibition against having recourse to gentile courts, Shulḥan Arukh, Hoshen Mishpat 26:1, adds the comment that submission to the jurisdiction of a non-Jewish court is forbidden even with the acquiescence of both parties and concludes by describing a litigant who transgresses the prohibition as a wicked person who "has blasphemed and has lifted a hand against the Torah of our teacher Moses, may he rest in peace." Recourse to a gentile forum is tantamount to a declaration by the litigant that he is amenable to allowing an alien code of law to supersede the law of the Torah. Such conduct constitutes renunciation of the law of Moses.
  Rashi, in his commentary on Exodus 21:1, offers a somewhat different rationale:
  "Before them," but not before gentiles: Even if with regard to a particular suit you know that they rule in a manner consistent with the laws of Israel, do not bring it before their courts, for one who brings Jewish lawsuits before gentiles profanes the Name of God and ascribes honor to the name of the idols, thereby enhancing their stature (<i>le-haḥashivam</i>),12<i class="footnote">A variant version reads “<i>le-hashbiḥam</i>” which, in this context, must be understood as having the same connotation.</i> as it is said, "For their rock is not our Rock, nor our enemies judges" (Deuteronomy 32:31), i.e., [if we make] our enemies judges [over us] that is testimony to the superiority of that which they reverence.13<i class="footnote">See also the supercommentary of R. Eliyahu Mizraḥi, <i>ad locum</i>.</i>
  R. Shlomoh Duran, <i>Hut ha-Meshulash</i>, III, no. 6, writing in his own name and also citing his father, R. Shimon ben Ẓemaḥ Duran, makes it clear that both the prohibition and Rashi's explanation thereof apply with equal force to appearance before gentile courts whose judges are not idolators and who administer a system of law entirely divorced from cultic practices. Speaking of Moslems in particular, R. Shlomoh Duran declares that "even though they are not idol-worshipers they deny the laws of our Torah," with the result that a person bringing suit before them <i>ipso facto</i> expresses a preference for their religion and their legal system over that of the Torah. Even though the legal system administered by such courts is areligious in nature and theologically neutral, it reflects principles that are at variance from those of the Torah. Hence voluntary choice of such a forum constitutes aggrandizement of those principles to the negation of the norms of the Torah. Halakhic sources discussing the prohibition implicitly follow R. Shlomoh Duran in failing to make any distinction on the basis of the nature and provenance of the legal code administered by the gentile courts.
  As might be anticipated, the explanations offered by <i>Shulḥan Arukh</i> and Rashi are culled from much earlier sources. Rashi's explanation that recourse to gentile courts serves to validate an alien ideology and to enhance the stature of pagan gods reflects a comment found in <i>Midrash Tanḥuma, Mishpatim</i> 3: "For whosoever abandons [the] judges of Israel and comes before gentiles has first denied the Holy One, blessed be He, and then denied the Torah." The emphasis in <i>Midrash Tanḥuma</i> is upon denial of God which consequently entails denial of the divine nature of the Torah, since if there is no Lawgiver there can be no Law. Rashi equates the atheism to which <i>Tanḥuma</i> refers with idolatry.14<i class="footnote">In Jewish teaching, idolatry, atheism, and denial of the divine nature of the Torah are theologically and halakhically equivalent. Idolatry is, in effect, but one manifestation of the denial of the Deity. See this writer’s <i>Be-Netivot ha-Halakhah</i>, I, 154-159 and <i>Contemporary Halakhic Problems</i>, IV (New York, 1995), 6-13.</i>
  <i>Shulḥan Arukh</i>'s depiction of acceptance of the jurisdiction of gentile courts as tantamount to renunciation of the law of Moses and hence as blasphemy is clearly taken from Rambam, Hilkhot Sanhedrin 26:6, and mirrors a philosophical view formulated by Rambam in his discussion of the nature of divine commandments in the <i>Guide for the Perplexed</i>, Book III, chapter 26. In contradistinction to R. Sa'adia Ga'on, <i>Book of Beliefs and Opinions</i>, Treatise III, chapter 1, who regards commandments as the product of divine will and hence as essentially arational, Rambam insists that all commandments reflect divine wisdom and hence are entirely rational, albeit in some cases their rational nature is beyond the grasp of human intelligence. Thus, rejection of the system of jurisprudence set forth in the Torah in favor of an alien system of law constitutes not only renunciation of the Law of Moses but, <i>ipso facto</i>, represents a renunciation of the Torah as the product of divine wisdom. And denial of the Torah as a manifestation of divine wisdom constitutes a form of blasphemy.
  4. Ramifications of the Diverse Concerns
  It seems to this writer that the rationales offered by Rashi and Rambam are not coextensive in their explanation of the various facets of the prohibition. Both Rashi and Shulḥan Arukh, Hoshen Mishpat 26:1, emphasize that the prohibition against having recourse to a gentile court applies even in instances in which the law applied in that forum is identical to the law of the Torah. <i>Sema, Hoshen Mishpat</i> 26:2, explains that extension of the prohibition to encompass even such situations is derived from the same phrase <i>"eleh ha-mishpatim."</i> For exegetical purposes the term <i>"mishpatim"</i> is rendered as "cases" or "lawsuits," but the term is not denuded of its basic meaning, i.e., "laws." Thus, explains <i>Sema</i>, the verse must also be understood as an exhortation that "these laws should be placed before them," [<i>viz</i>., before the judges appointed by Moses], i.e., even when the law applied by other courts is identical to that of the Torah and identical to that applied by Jewish judges, the matter must be brought only before the specified judges, <i>viz</i>., those appointed by Moses.
  Nevertheless, the reason for a prohibition in such circumstances is not immediately clear. Rambam does indeed prohibit recourse to a non-Jewish judicial forum even if it has adopted the Law of Moses as its legal code. Accordingly, he includes that example in his categorization of appearance before gentile courts as an act of "raising a hand against the Torah of Moses." Nevertheless, recourse to a gentile court to administer laws recorded in <i>Hoshen Mishpat</i> is to be eschewed for a different reason. Appearance before a gentile court even under such circumstances is forbidden because it is <i>meyaker shem avodat elilim</i>—it enhances the status of an alien legal system. A litigant appearing before a gentile court does not do so because that court has accepted the Law of Moses in whole or in part. The fact that their judgments are identical to those of rabbinic tribunals is entirely coincidental. The litigant appears before the gentile courts because he accepts their authority and if they administer the Law of Moses he accepts that law, not because he regards it as binding upon him by virtue of having been commanded by God, but because it has been endorsed and adopted by gentiles. In doing so, he gives acceptance and credibility to a foreign ideology. The prohibition, as it extends to such cases, is better understood on the basis of Rashi's explanation rather than on the basis of the explanation offered by Rambam and <i>Shulḥan Arukh</i>. Indeed, in reading Rashi's comment, it should be noted that Rashi offers his rationale, not to explain the prohibition in general, but to underscore that the prohibition is in full force and effect "even if you know … that they will rule in a manner consistent with the laws of Israel."
  A close reading of Shulḥan Arukh, Hoshen Mishpat 26:1, reveals that the rationale presented by <i>Shulḥan Arukh</i> is also recorded in juxtaposition to a particular aspect of the prohibition. <i>Shulḥan Arukh</i> declares that recourse to gentile courts "even if both litigants have consented to adjudicate before them is prohibited and whosoever seeks to litigate before them is a wicked person and is as if he has blasphemed and lifted a hand against the Torah of our teacher Moses, may he rest in peace." <i>Shulḥan Arukh</i> is readily understood as seeking to underscore the principle that mutual acquiescence does not mitigate the prohibition. Rejection of Jewish law is tantamount to blasphemy; mutual acquiescence is nothing other than mutual blasphemy.
  There is, however, no hint in halakhic sources that these two rationales are mutually exclusive or in any way incompatible. Indeed, a number of authorities, including R. Shlomoh Duran, <i>Hut ha-Meshulash</i>, III, no. 6, and his son R. Shimon Duran, <i>Teshuvot Yakhin u-Bo'az</i>, II, no. 9, first cite Rashi and then Rambam without positing any disagreement between them and elsewhere a second son, R. Ẓemaḥ Duran, <i>Teshuvot Yakhin u-Bo'az</i>, I, no. 6, combines the substance of both rationales in a single sentence.15<i class="footnote">R. Chaim Pelaggi, <i>Ḥukkot Ḥayyim</i>, no. 1, questions why the prohibition against having recourse to gentile courts, which constitutes a biblical transgression, is not enumerated among the complement of the 613 commandments. The problem is readily resolved if it is understood that recourse to such courts, since it is tantamount to renunciation of the Law of Moses, is tantamount to idolatry. Thus, the prohibition against supplanting the law of the Torah by another legal code is subsumed under the prohibition against idolatry and does not constitute an independent transgression. See <i>Contemporary Halakhic Problems</i>, IV, 12f.See also <i>Kesef ha-Kodoshim</i>, Ḥoshen Mishpat, 26:1, who cites authorities who maintain that, because of the ideological deviation reflected in such conduct, a person having recourse to secular courts may not be counted toward a <i>minyan. Mishnah Berurah</i> 581:11 rules that such an individual should not be permitted to lead services on the High Holy Days.</i> R. David ibn Zimra, <i>Teshuvot Radvaz</i>, IV, no. 1190, also combines both concerns in stating that appearance before a gentile court is an indication that one who does so believes "that the laws of our Torah are not true" and continues with the statement "and moreover he causes the <i>Shekhinah</i> to remove itself from Israel because he ascribes power to another god."
  The prohibition against recourse to <i>arka'ot shel akum</i> or secular courts because such action is in the nature of "lifting a hand against the Torah of Moses" is not limited to bringing a suit before a gentile court. That facet of the prohibition includes any judicial proceeding that negates the Law of Moses. A judicial body composed entirely of judges who happen to be members of the Jewish community but who administer an alien system of law, is undoubtedly to be classified as within the halakhic category of <i>arka'ot shel akum</i> for the simple reason that the laws such a court administers are not those of the Torah. Thus, voluntary appearance before those judges for purposes of litigation is also tantamount to renunciation of the laws of the Torah in favor of a disparate system of law. A judge who hears a case involving two Jewish litigants and renders judgment in accordance with a secular corpus of law is, at the very least, guilty of aiding and abetting transgressors.16<i class="footnote">Cf., R. Menasheh Klein, <i>Mishneh Halakhot</i>, VI, no. 313, s.v. <i>od amarti</i> and VII, no. 255, s.v. <i>u-mah she-katav</i>, as well as <i>idem, Sha‘arei ha-Mishnah, sha‘ar</i> 10.</i>
  Since, as noted earlier, acquiescence by both litigants does not serve to mitigate the prohibition against "lifting a hand against the Torah of Moses" and since the prohibition applies even when the judges themselves are Jews, it follows that the parties are not entitled to accept the authority of a rabbinic court or <i>Bet Din</i> but stipulate that the <i>Bet Din</i> shall apply the law of a secular state.17<i class="footnote">There are, however, circumstances in which a <i>Bet Din</i> must take notice of secular law. In instances in which people generally comport themselves in accordance with the provisions of such laws, those laws may acquire the status of “common trade practice.” Since people contract in reliance upon such practices, provisions of law that are generally followed may become implied conditions of a contract. Such laws are binding to the extent that they would be binding if explicitly incorporated in the contract and hence are binding by virtue of the agreement of the parties rather than by virtue of the legal authority of the State. See <i>infra</i>, note 37 and accompanying text.</i> Thus, <i>Teshuvot Oraḥ le-Ẓaddik, Hoshen Mishpat</i>, no. 1, declares that, since recourse to non-Jewish courts is forbidden, <i>a fortiori</i>, it is forbidden for Jews to adjudicate disputes in accordance with the laws of gentile nations.18<i class="footnote">See also <i>Teshuvot Heshiv Moshe, Ḥoshen Mishpat</i>, no. 90.</i>
  Accordingly, if two parties, regardless of where they may be domiciled or where the contract is executed, enter into a contract and stipulate that any dispute with regard to fulfillment of the terms of the contract is to be resolved by a rabbinic court in accordance with, for example, the laws of the State of Delaware, the stipulation is void by virtue of being inconsistent with biblical law (<i>matneh al mah she-katuv ba-Torah</i>).19<i class="footnote">Cf., <i>Teshuvot Rivash</i>, no. 52 and <i>Tashbaẓ</i>, I, no. 61, who reject Rivash’s conclusion. See also Ramban, <i>Commentary on the Torah</i>, Exodus 21:1; <i>Teshuvot ha-Rashba</i>, cited by <i>Bet Yosef, Ḥoshen Mishpat</i> 26; Rema, Ḥoshen Mishpat 248:1 and 369:8; <i>Sema, Ḥoshen Mishpat</i> 369:20; <i>Taz, Ḥoshen Mishpat</i> 248:1; <i>Teshuvot Maharit</i>, II, Ḥoshen Mishpat, no. 6; <i>Teshuvot Ḥatam Sofer, Ḥoshen Mishpat</i>, no. 142; and <i>Teshuvot Ba’i Ḥayyei, Ḥoshen Mishpat</i>, no. 158. Cf. also, <i>Sema, Ḥoshen Mishpat</i> 26:10; <i>Taz, Ḥoshen Mishpat</i> 26:3; and <i>Birkei Yosef, Ḥoshen Mishpat</i> 26:3 as well as R. Judah Siegal, <i>Ha-Torah ve-ha-Medinah</i>, pp. 84-91.</i> The parties are, of course, bound to appear before the <i>Bet Din</i>, but the <i>Bet Din</i> must adjudicate the dispute in accordance with the provisions of <i>Hoshen Mishpat</i>.
  5. Secular Courts in the State of Israel
  The prohibition involved in "lifting a hand against the Torah of Moses" applies equally whether the authority of the judiciary is derived from the police power of the secular state or the voluntary agreement of the litigants and, <i>a fortiori</i>, when it is derived from the authority of a secular Jewish state. Thus, following the establishment of the State of Israel, when it became evident that the <i>batei mishpat</i>—the national courts of the State of Israel—could not even attempt to rule in accordance with the provisions of Jewish law because the Knesset refused to enact <i>Hoshen Mishpat</i> as the law of the land, <i>Hazon Ish, Sanhedrin</i>, no. 15, sec. 4, declared unequivocally that the status of the Israeli <i>batei mishpat</i> is no different from that of <i>arka'ot shel akum</i>.20<i class="footnote">That view is also propounded by Rabbi Batzri, <i>Dinei Mamonot</i>, I, 346f.; R. Benjamin Silber, <i>Oz Nidberu</i>, III, no. 74; and R. Judah Siegal, <i>Ha-Torah ve-ha-Medinah</i>, VII-VIII, pp. 74-77.</i> Despite the fact that the judges are Jews rather than gentiles and despite the fact that they sit under the color of authority of a Jewish state, <i>Hazon Ish</i> ruled that their status was that of <i>arka'ot shel akum</i> because the system of law they impose is not that of the Law of Moses; substitution of statutes and precedents of Ottoman or British law, or even of the laws of the <i>Knesset</i> for the laws of the Torah, constitutes renunciation of the Torah of Moses. A view similar to that of <i>Hazon Ish</i> is advanced by the late Chief Rabbi of Israel, R. Isaac ha-Levi Herzog, <i>Ha-Torah ve-ha-Medinah</i>, VII-VIII, 9-12,21<i class="footnote">See also <i>idem, Teḥukah le-Yisra’el</i>,, I, 164 and <i>Ha-Torah ve-ha-Medinah</i>, I, 5.</i> as well as by R. Zevi Pesach Frank; R. Ovadiah Yosef as recorded in the latter's <i>Yeḥaveh Da'at</i>, IV, no. 65; R. Benjamin Silber, <i>Oz Nidberu</i>, III, no. 74; and R. Moshe Sternbuch, <i>Teshuvot ve-Hanhagot</i>, III, no. 441, s.v. <i>ve-da</i>.
  To the objection that neither the judge nor the attorneys who appear before them are proficient in Jewish law and to the objection that Jewish law at times may appear to be unwieldy or not readily applicable to novel circumstances, <i>Hazon Ish</i> had a ready reply. He countered that <i>batei mishpat</i> need not necessarily be required to render judgment in accordance with any system of law. In effect, he counseled that Israeli courts should sit as courts of equity rather than as courts of law. As courts of equity they would render judgment in accordance with what they perceive to be fair and equitable in any given case.
  Such a procedure is not a violation of Halakhah because such adjudication is tantamount to arbitration or <i>pesharah</i>. Rather than insisting upon a judgment in strict conformity with provisions of Halakhah, Jewish law supports, and indeed encourages, litigants to accept arbitration. Arbitration incorporates elements of compromise and allows judges to take account of extralegal considerations of fairness and equity with the result that, upon conclusion of the proceedings, litigants are less likely to harbor feelings of rancor and ill will.
  Arbitration is not renunciation of the Torah of Moses both because it is specifically authorized by the Torah and because it does not supplant one system of law with another. It is only rejection of one corpus of law, <i>viz</i>., the Torah, in the form of adoption of a different code to be applied uniformly that constitutes "lifting a hand against the Torah of Moses." Laws are rules to be applied in all cases; <i>ad hoc</i> decisions do not constitute a system of law.
  Professor Menachem Elon, <i>Ha-Mishpat ha-Ivri</i> (Jerusalem, 5738), I, 22, note 80 and I, 122, note 174, takes issue with <i>Hazon Ish</i> on the basis of the words of Me'iri in his commentary on <i>Sanhedrin</i> 23a.22<i class="footnote">See also Jacob Bazak, <i>Teḥumin</i>, II (5741), 523–527, who discusses the terminology employed by Rambam, Hilkhot Sanhedrin 26:7, but fails to present any source contradicting the position of <i>Ḥazon Ish</i> and those who espouse that view. Cf. Shochetman, <i>Teḥumin</i>, XIII, 346, who points out that the Yemenite manuscripts of Hilkhot Sanhedrin read “<i>dinei akum</i>” rather than “<i>dayyanei akum</i>” and that, since Rambam also records the prohibition against recourse to <i>dayyanei akum</i> in the same sentence, use of the term <i>dayyanei akum</i> twice in the same content would be redundant. According to the Yemenite reading, <i>Ḥazon Ish</i>’s view is explicit in the words of Rambam. That version was adopted in the <i>Rambam la-Am</i> edition of the <i>Mishneh Torah</i>, published by Mossad Harav Kook (Jerusalem, 5722).</i> The Gemara, <i>Sanhedrin</i> 23a, speaks of "courts of Syria" whose authority could not be legitimately challenged because they had been accepted by the populace. The members of those courts were Jews but are described by Rosh, <i>ad lo-cum</i>, as "not having been proficient in the laws of the Torah."
  <i>Hazon Ish</i> cites the talmudic reference to the "courts of Syria" as evidence for the thesis that authority is vested in society to establish a judicial system whose judgments may not be consistent with Jewish law. Since the court's jurisdiction must be accepted by the litigants despite the judges' lack of qualification, the court's decisions must be regarded as valid because they constitute a form of arbitration. <i>Hazon Ish</i> asserts that the State of Israel has the authority to appoint judges to its courts even though they may be entirely ignorant of Jewish law and empower them to sit as the equivalent of a court of equity in order to render <i>ad hoc</i> decisions on the basis of considerations of fairness and common sense. The Gemara's discussion of the authority of the "courts of Syria" is cited as evidence for the conclusion that society has the right to compel that type of adjudication.
  <i>Hazon Ish</i> assumes that the "courts of Syria" either, at times, misapplied Jewish law because of lacunae in their knowledge or that they made no attempt to do other than mete out a subjective form of justice. He states unequivocally that they did not rule in accordance with the law of the land or in accordance with their own judge-made law.
  Me'iri, however, comments that the "courts of Syria" rendered judgment "in accordance with subjective judgment (<i>omed ha-da'at</i>), laws (<i>ḥukkim</i>) and customs (<i>nimusim</i>)." R. Shlomoh Goren, <i>Ha-Tzofeh</i>, 3 Adar I 5708, reprinted in <i>Teḥukah le-Yisra'el al Pi ha-Torah</i>, I, 150-151, and Menachem Elon understand Mei'iri's comment quite literally with the result that they ascribe to him the position that, with the approval of the populace that appointed them, Jewish courts may adjudicate lawsuits that come before them in accordance with a non-Jewish system of law.23<i class="footnote">For a survey of rabbinic opinion with regard to the role of recently discovered manuscripts, such as those of Me’iri, in halakhic decision-making, see R. Moshe A. Bleich, “The Role of Manuscripts in Halakhic Decision-Making: <i>Ḥazon Ish</i>, His Precursors and Contemporaries,” <i>Tradition</i>, vol. 27, no. 2 (Winter, 1993), pp. 22-55.</i> However, Rabbi Goren, citing <i>Urim ve-Tumim</i> 22:1, <i>urim</i>, sec. 15, asserts that the procedures of the "courts of Syria" are appropriate and legitimate only in communities in which there are no scholars who are proficient in Halakhah but that, where such scholars are available, establishment of judicial bodies in the nature of the "courts of Syria" cannot be countenanced.24<i class="footnote">This is also the position of <i>Netivot ha-Mishpat, ḥiddushim</i> 22:13. Cf., however, <i>infra</i>, note 27.</i>
  It should be noted that, even if this interpretation of Me'iri's comment is accepted as correct, it is impliedly rejected by other early authorities. Ran, <i>Sanhedrin</i> 23a, cites the opinion of R. David who explains that the establishment of the "courts of Syria" was appropriate because, despite the fact that the members of those courts were not scholars of note, "it was impossible that [among a panel of three judges] there not be one who was proficient." Ramban, in his commentary on the same talmudic discussion, apparently endorses R. David's explanation. Implicit in that explanation is rejection of the notion that "courts of Syria" ruled in accordance with a non-Jewish system of law.
  Rabbi Herzog, <i>Teḥukah le-Yisra'el</i>, I, 163, raises the possibility that the "courts of Syria" adopted gentile law as their own and tentatively suggests, only to reject, the notion that if Jewish courts adopt gentile laws because they find them to be equitable and pragmatic such laws no longer have a gentile character since their authority stems from <i>takkanah</i> or judicial enactment. Rabbi Herzog concludes with the statement that "it is reasonable (<i>mistaver</i>)" to assume that Me'iri's use of the term <i>"dinim"</i> does not at all refer to the laws of the general society but to "laws they established for themselves on the basis of their own intellect," i.e., judge-made law in the nature of autonomous <i>takkanot</i> formulated by the "courts of Syria" themselves.
  It seems to this writer that Me'iri's comments can be understood in a manner somewhat similar to, but significantly different from, the interpretation rejected by Rabbi Herzog. Rabbi Herzog cogently rejects the notion that the halakhic defect inherent in gentile legislation can be cured by formal endorsement and reenactment on the part of Jewish authorities. A careful reading of Me'iri's comment indicates that, in his opinion, the "courts of Syria" adjudicated on the basis of "assessment of the intellect, laws and customs." Those terms should be understood disjunctively, but not in the sense that some issues were decided subjectively, other issues on the basis of custom and yet others on the basis of secular law. Rather, in any case brought before them, those judges were free either to render judgment in an entirely subjective and novel manner, to adjudicate on the basis of some custom or practice, or to decide the case in accordance with the legal system of the dominant society. In no suit brought before them did they regard themselves as bound by the secular law.25<i class="footnote">Mei’ri is also understood in this manner by Shochetman, <i>Teḥumin</i>, XIII, 341 and apparently by R. Abraham Sherman, <i>Teḥumin</i>, XIV (5754), 163, as well. Moreover, Rabbi Sherman seems to regard this understanding of Mei’ri as identical to that of Rabbi Herzog.</i> It appears to be self-evident that even a properly established <i>Bet Din</i>, when applying principles of <i>pesharah</i>, need not reject a resolution it finds to be fair and equitable simply because it has been incorporated in a foreign legal system.26<i class="footnote">The notion that a <i>Bet Din</i> is free to assess the merits of provisions of other legal systems in formulating its own resolution of a dispute is advanced by R. Saul Israeli, <i>Ha-Torah ve-ha-Medinah</i>, VII-VIII, 77, note 3.</i> Quite to the contrary, it would be prudent for them to examine the provisions of such legal systems in order to determine if indeed an appropriate resolution of the controversy before them might not already have been developed in such a system.
  Thus, Me'iri may well be understood as stating that when they saw fit to do so, the "courts of Syria" did indeed rule in accordance with prevalent customs or the laws of the general society. The crucial point, however, is that they did not regard themselves as bound to do so nor did they do so in a uniform and inviolable manner. The net result was that even when they ruled in accordance with "<i>dinim</i>," i.e., secular law, it was on the basis of <i>omed ha-da'at</i>, i.e., on the basis of their own <i>ad hoc</i> determination that the provisions of secular law were appropriate in that particular case.
  If this analysis is correct, those early authorities who impliedly reject Me'iri's explanation must perforce reject the explanation that the "courts of Syria" acted entirely on the basis of subjective judgment. It may be presumed that those authorities decline to assume that the "courts of Syria" acted on the basis of subjective judgment because they espouse the view that, although individual litigants are perfectly free to accept arbitration and indeed should be encouraged to do so, nevertheless arbitration may not be imposed upon a community by its judicial or administrative officials because such an edict would serve totally to abrogate the jurisprudence of Halakhah in that jurisdiction.27<i class="footnote">See <i>Urim ve-Tumim</i> 22:1, <i>urim</i>, sec. 15 and <i>Netivot ha-Mishpat, ḥiddushim</i> 22:13. However, Rema, Ḥoshen Mishpat 8:1, appears to rule that such a communal edict is entirely appropriate. Cf., however, Rabbi Herzog, <i>Teḥukah le-Yisra’el</i>,, I, 165, who endeavors to interpret Rema in a manner compatible with the position of <i>Urim ve-Tumim</i> and <i>Netivot</i>.</i>
  6. Arbitration
  Appearance before Jewish judges sitting as a court that administers an alien system of law, even if that system was enacted by Jews, is forbidden despite the fact that there is no hint of endorsement of pagan ideology because it represents renunciation of the Law of Moses. The selfsame consideration would render it impermissible to submit a dispute to a non-judicial forum, e.g., to arbitrators, or even to a <i>Bet Din</i>, with the stipulation that the arbitrators or the <i>Bet Din</i> adjudicate in accordance with the law of the land.28<i class="footnote">Cf., however, <i>Netivot ha-Mishpat</i>, <i>ḥiddushim</i> 22:14, who understands <i>Shakh, Ḥoshen Mishpat</i> 22:15, as expressing doubt with regard to the permissibility of submitting to the authority of an individual gentile for the purpose of extra-judicial adjudication but in accordance with a non-Jewish legal system. If so, <i>Shakh</i>’s doubt is whether the prohibition of <i>arka’ot shel akum</i> is limited to appearance before a formal judicial body because only recourse to a formal court is <i>meyaker shem avodat elilim</i> or whether the prohibition is all-encompassing. However, both <i>Netivot ha-Mishpat</i>, <i>loc. cit</i>., and <i>Arukh ha-Shulḥan, Ḥoshen Mishpat</i> 22: 18, rule unequivocally that adjudication on the basis of non-Jewish law is forbidden even outside of a formal judicial framework. See also <i>infra</i>, note 30.</i>
  Such a situation allegedly occurred a number of years ago in a European community. The community engaged a <i>rav</i> and, seeking to avoid a possible <i>din Torah</i>, stipulated in their contract with him that any dispute between the <i>rav</i> and the <i>kehillah</i> be adjudicated by a panel of arbitrators who would render a decision in accordance with civil law. The <i>rav</i> sought guidance with regard to whether he was bound by Halakhah to abide by that stipulation. Since the stipulation is in the nature of <i>matneh al mah she-katuv ba-Torah</i>, i.e., it is at variance with the law of the Torah, it is entirely void and therefore unenforceable. Not only does such an undertaking fail to bind the contracting parties but voluntary adherence to such an agreement would constitute a violation of Jewish law.29<i class="footnote">A collection of responsa dealing with that situation, including one by this writer, was assembled by R. Raphael Evers of Amsterdam and published in his <i>Teshuvot ve-Shav ve-Ripe</i>, I (Jerusalem, 5754), no. 77. See also <i>Be-Netivot ha-Halakhah</i>, II (New York, 5759), 169-172.</i>
  Conversely, it seems to this writer that there are situations in which the rationale advanced by Rashi, <i>viz</i>., that appearance before gentile courts "enhances the name of idols," is applicable even though the rationale advanced by <i>Shulḥan Arukh</i> is not. As noted earlier, the term "idols" employed by Rashi is not to be taken literally. Were that the case, the prohibition against recourse to gentile courts would be operative only if the laws enforced by them were of cultic nature or origin; courts administering a non-religious code of law would not fall within the ambit of the prohibition. However, that conclusion is not reflected in any halakhic source. Perforce, the reason must be that any system of law other than that of the Torah is "idolatrous" in the sense that it reflects legal norms that are at variance with those of the Torah. Agreement to be subject to the jurisdiction of a court receiving its authority from such a legal system enhances and aggrandizes "the name of idols" in the sense that it confers legitimacy upon the ideology from which the court derives its authority. Voluntary appearance before a particular judicial body in and of itself confers status and stature upon that court and the legal system from which it derives its authority even if, in a particular case, it does not impose the provisions of a disparate legal system.
  Of course, courts generally do rule in accordance with the law of the jurisdiction in which they sit, but that is not always the case. For example, in small claims courts of many states, including New York, litigants have the option of a trial before a judge or a hearing before an arbitrator. Such appearance would be prohibited even if the arbitrator were authorized to rule solely on principles of equity and fairness. To be sure, as noted earlier, arbitration undertaken in an <i>ad hoc</i> manner does not constitute "raising a hand against the Torah of Moses." Nevertheless, that is true only so long as the arbitration proceeding is conducted by a <i>Bet Din</i> or by laymen. However, when undertaken under the auspices of a gentile judicial body it is an acknowledgment of voluntary acceptance of the authority of an alien ideological system and hence is not permissible.
  That arbitration before gentile courts is prohibited is evident from the ruling of Shulḥan Arukh, Hoshen Mishpat 68:1. <i>Shulḥan Arukh</i> speaks of various legal instruments executed by gentile courts that are not enforceable by a <i>Bet Din</i>. Among those are <i>shetarei pesharah</i> or arbitration awards. Such documents are issued by gentile judges sitting, not as a court of law, but as arbitrators. The reason that such awards are not recognized in Jewish law, despite its encouragement of arbitration and mediation, is that when conducted before a judicial body, the matter assumes the guise and character of a judicial proceeding, as indeed is the case with regard to <i>pesharah</i> conducted by a <i>Bet Din</i>. Halakhah regards <i>pesharah</i> as a legal procedure. Accordingly, when carried out by a gentile judicial body it falls within the ambit of <i>meyaker shem avodat elilim</i> because it enhances the stature of a foreign judicial system.
  There is a fundamental difference between arbitration carried out by laymen and arbitration conducted by a court. The former is conducted entirely outside of the judicial arena. Even though the award of the arbitrators can be enforced by a court of competent jurisdiction, the arbitration proceeding itself is entirely extra-judicial. However, whether conducted by a <i>Bet Din</i> or by a secular court, arbitration is a judicial procedure conducted with judicial authority. Accordingly, voluntary submission to arbitration under the authority of a gentile court is prohibited because it is an expression of preferment and aggrandizement of a gentile judicial authority. Thus <i>Arukh ha-Shulḥan, Hoshen Mishpat</i> 22:8, rules that it is permissible to accept a non-Jew "to adjudicate on the basis of his judgment, not on the basis of established [gentile] law, just as it is permitted to accept a relative or a person disqualified from serving as a judge to serve in such a capacity."30<i class="footnote">Cf., however, <i>Halakhah Pesukah</i> (Jerusalem, 5746), Ḥoshen Mishpat 22:13, note 113, who maintains <i>Shakh</i> disagrees and maintains that even arbitration before a gentile is forbidden and that, although <i>Netivot ha-Mishpat</i> disputes <i>Shakh</i>’s ruling, <i>Arukh ha-Shulḥan</i> rules in accordance with the position of <i>Shakh</i>. It seems to this writer that <i>Shakh</i> is understood by <i>Netivot ha-Mishpat</i> as expressing doubt only with regard to adjudication in a non-judicial forum on the basis of a codified system of law and that <i>Arukh ha-Shulḥan</i> asserts that the forbidden nature of such an act was never questioned by <i>Shakh</i>. See this writer’s <i>Be-Netivot ha-Halakhah</i>, II (New York, 5759), p. 171. See also R. Abraham Sherman, <i>Teḥumin</i>, XIV, 162. Cf. also, <i>Yetav Lev, Parashat Mishpatim</i>.</i> <i>Arukh ha-Shulḥan</i> clearly permits non-Jews who do not serve in a judicial capacity to act as arbitrators.31<i class="footnote">See also <i>Oz Nidberu</i>, III, no. 74.</i>
  The permissibility of adjudication of disputes by a non-Jew (a) who is not a judicial official and (b) who administers justice on the basis of general considerations of equity and fairness rather than on the basis of a legal code is reflected in a responsum of R. Raphael Ankawa, <i>Pa'amonei Zahav</i> (Jerusalem, 5772), no. 26, s.v. <i>ve-im ken. Pa'amonei Zahav</i> reports that in his locale, in cases of altercation between Jews, it was time-honored practice to bring the matter before the "ruler of the city." <i>Pa'amonei Zahav</i> defends the practice against the contention that it constitutes a violation of the prohibition " 'Before them'—but not before gentile courts" on the grounds that the "ruler of the city" does not sit in "a place of judgment" and does not rule in accordance with statute but "as his eyes see fit."32<i class="footnote"><i>Pa’amonei Zahav</i> does raise an additional issue: Lodging a complaint with the “ruler of the city” is likely to result in a monetary award or a fine in excess of any liability that would be recognized in Jewish law. Hence the Jew who brings the complaint is ostensibly engaged in an act of <i>mesirah</i>, i.e., causing unjustified financial harm to a fellow Jew.</i>
  This analysis also serves as the basis for resolving the problem presented in the beginning of the present discussion, <i>viz</i>., how is it that the prohibition against having recourse to non-Jewish courts remains in effect even if both parties acquiesce to such proceedings but that the prohibition against lay, i.e., non-ordained, judges does not apply in situations in which both litigants accept their jurisdiction? The Torah does indeed declare " 'Before them'—but not before laymen." But neither of the two reasons supporting the prohibition against having recourse to gentile courts applies to <i>hedyotot</i> or laymen. Appearance before lay judges for adjudication in accordance with Jewish law cannot be even remotely associated with endorsement of an alien ideology and, in Rashi's terminology, does not turn our "enemies" into our judges. Nor does appearance before non-ordained judges constitute renunciation of the Law of Moses. Despite the absence of formal qualification in the form of ordination, laymen may be entirely proficient in <i>Hoshen Mishpat</i> and hence fully competent to apply the law correctly. Assuredly, charging them to do so does not represent "raising a hand against the Torah of Moses." To be sure, since they lack judicial authority, laymen are not empowered to compel appearance before them but lack of coercive authority does not preclude voluntary acceptance of their authority. Such voluntary acceptance is quite similar to voluntary acceptance of <i>pesharah</i> rather than rigid application of law. Accordingly, the exclusion reflected in the exegetical comment " 'Before them'—but not before laymen" is understood as limited to a reference to the coercive power vested in the judiciary established by Moses.
  II. Exceptions to the Prohibition
  1. Non-Adversarial Proceedings
  The biblical prohibition expressed in the verse "And these are the <i>mishpatim</i> which you shall place before them" is limited to empowering gentile courts with the adjudication of <i>mishpatim</i>. Matters that are not subsumed within that denotation are not prohibited. In exegetical context, and hence for purposes of defining the prohibition, "<i>mishpatim</i>" does not mean "laws" or "statutes" but "lawsuits" or "causes of action." Courts are concerned with many affairs that involve the administration of legal matters but which are entirely divorced from litigation. To cite a rather trivial example, a legal change of name requires a court order. An application to a court for a change of name is not a violation of <i>lifneihem ve-lo lifnei arka'ot shel akum</i>. Naturalization proceedings serve as another example. Acquiring citizenship is certainly permitted and there exists no prohibition against initiating the requisite proceeding in a federal court in order to achieve that goal. Such matters are of no import to Jewish law and, for that reason, even if for no other, are not encompassed within the meaning of the term "<i>mishpatim</i>." But more significantly, such matters are not adversarial and do not require adjudication between competing claims.
  Inheritance is clearly a matter with which Jewish law is concerned. However, probate of a will requires utilization of the offices of a probate court. Banks and other financial institutions are constrained from releasing funds unless the deceased's will is probated. Certainly, if the will is to be contested, Halakhah demands that such a proceeding must be brought before a <i>Bet Din</i> rather than before a secular court and that the parties agree to have the court distribute the assets of the estate in accordance with the decision of the <i>Bet Din</i>. However, probate of an undisputed will is purely a ministerial function and hence does not violate the prohibition of <i>lifneihem ve-lo lifnei arka'ot shel akum</i>.
  The common denominator in each of these examples is that they involve matters that are non-adversarial and do not require adjudication between competing claims. The term "<i>mishpatim</i>" as used in this context, refers to matters of litigation, i.e., matters involving different parties each of whom desires something the other is not prepared to grant. Disputes must be presented to a <i>Bet Din</i> for judgment in accordance with Halakhah. Matters that are private rather than interpersonal and matters that involve no conflicting interests or claims are not "suits" or "causes of action" within the meaning of the term "<i>mishpatim</i>." The prohibition against recourse to gentile courts is limited to adversarial proceedings. Matters that are entirely ministerial are not encompassed within the ambit of the prohibition and turning to secular courts to secure the benefit of such proceedings is not a renunciation of the Law of Moses in favor of a disparate legal system.
  2. Siruv
  The basis for this distinction is reflected in a provision of Jewish law that does apply to adversarial proceedings. As recorded in <i>Hoshen Mishpat</i> 26:2, there are circumstances in which it is permissible to sue a fellow Jew in a secular court. A person with a claim against another must apply to a <i>Bet Din</i> for an order directing his adversary to appear before that tribunal. Upon a determination of the <i>Bet Din</i> that the defendant's failure to appear is unwarranted, the <i>Bet Din</i> issues a <i>siruv</i> (lit.: refusal) which is essentially a declaration that the defendant is in contempt of court by virtue of his failure to appear and also grants the plaintiff leave to institute proceedings before a secular court. Even in such cases, the plaintiff is entitled to accept a judgment only for an amount not in excess of the sum he would have recovered in a <i>Bet Din</i>. Recourse to a secular court in such instances is categorized by Rambam, Hilkhot Sanhedrin 26:7, and later by Shulḥan Arukh, Hoshen Mishpat 26:2, as "rescue" of funds that otherwise would be lost to the plaintiff.
  However, on the surface, categorization of litigation before a gentile court in some circumstances as an act of rescue does not seem to justify such a course of action. The plaintiff after all, is voluntarily instituting a suit before a gentile court. Is he not thereby accepting a non-Jewish legal system in preference to the Law of Moses and thereby also enhancing the stature of a legal system that supplants the laws of the Torah? The answer lies in the fact that in applying to a <i>Bet Din</i> the plaintiff has clearly indicated his preference for adjudication in accordance with Jewish law. The issuance of a <i>siruv</i> makes it crystal clear that the offices of a civil court are employed only as a last resort in order to avoid financial loss. Submission to the jurisdiction of such a court on account of financial duress cannot be construed as renunciation of the Law of Moses. Nor, when undertaken pursuant to leave of a <i>Bet Din</i> whose services were clearly preferred by the plaintiff, is the plaintiff contributing to enhancement or aggrandizement of a non-Jewish legal system.
  It is for the identical reason that there is no violation of the prohibition against recourse to <i>arka'ot shel akum</i> in any situation in which such recourse is involuntary, as is the case with regard to a defendant who is summoned to appear in a secular court, or in which the objective simply cannot be achieved in a <i>Bet Din</i>, e.g., change of name, naturalization proceedings, probate of an uncontested will, etc.
  It is also for the same reason that there is no barrier to seeking a civil divorce in an appropriate civil court even if the divorce is contested. To be sure, the prohibition against recourse to gentile courts is fully operative with regard to disputes concerning maintenance, alimony, child support and custody of children. Those are matters that should be litigated only before a <i>Bet Din</i>. The same is true with regard to an issue of whether either party is obligated to grant or accept a <i>get</i>. Indeed, involvement of a secular court in matters pertaining to executing a religious divorce is likely to create a situation in which any <i>get</i> that is executed is invalid by reason of duress. Nevertheless, there is no prohibition against applying to a secular court for a decree of civil divorce. Such a decree has no effect whatsoever insofar as Jewish law is concerned. For observant Jews it has the sole purpose of eliminating the threat of a bigamy prosecution by civil authorities upon subsequent remarriage in accordance with the law of Moses and Israel. Both because the divorce decree cannot be obtained from a <i>Bet Din</i> and because it is designed exclusively to facilitate a civil purpose it presents no problem with regard to the prohibition against recourse to <i>arka'ot shel akum</i>.
  3. Confirmation of an Award of the Bet Din
  Religious courts enjoy no intrinsic judicial status in the eyes of the American legal system. Such tribunals are, however, recognized as the legal equivalent of arbitration panels with the result that the judgments of a <i>Bet Din</i> are enforceable in secular courts as arbitration awards. In order to enforce such awards in a secular court it is necessary for the litigants to sign a submission to arbitration before the proceedings begin and later to have the decision of the arbitrators confirmed by a court of competent jurisdiction within a stipulated period of time.33<i class="footnote">For precisely the same reason, the litigants and the <i>Bet Din</i> must conform to the applicable provisions of the arbitration law of the jurisdiction in which the <i>Bet Din</i> proceedings are held.</i> There is no objection in Jewish law to having the award confirmed in that manner despite the fact that it involves an act of a civil court. In the diaspora, <i>Batei Din</i> do not have the power to enforce their judgments. <i>Batei Din</i> may employ the police power of the state, when available, to enforce their decisions. They may harness the power of a secular judiciary for the same purpose in much the same manner that they are empowered to issue a <i>siruv</i> permitting recourse to a secular court against a recalcitrant party. Confirming the award of a <i>Bet Din</i> in a civil court simply reserves the option of utilizing the power of the court to enforce the judgment of the <i>Bet Din</i> should that become necessary. Nevertheless, according to some authorities, actual enforcement of the award of the <i>Bet Din</i> by means of a court order is not permissible without prior leave of the <i>Bet Din</i> in the form of a <i>siruv</i> indicating that the defendant has not complied with the judgment issued by the <i>Bet Din</i> and that the plaintiff is therefore entitled to take further measures to assure compliance.34<i class="footnote">See <i>Shulḥan Arukh ha-Rav, Hilkhot Nizkei Mamon</i>, sec. 9 and R. Ya’akov Yeshaya Blau, <i>Pitḥei Ḥoshen</i>, vol. V, chap. 4, note 19. See also <i>Urim ve-Tumim</i> 26:5 who expresses doubt with regard to this matter. Cf., however, R. Shalom Mordecai Schwadron, <i>Teshuvot Maharsham</i>, I, no. 89, who cites <i>Knesset ha-Gedolah</i> and <i>Da‘at Kedoshim</i> in ruling that leave of the <i>Bet Din</i> is not required to enforce a fulfillment of a <i>Bet Din</i>. See also <i>Teshuvot Maharsham</i>, III, no. 195 and IV, no. 105; R. Shlomoh Kluger, <i>Teshuvot Tuv Ta’am va-Da’at, Mahadura Telita’a</i>, no. 261; <i>idem, Ha-Elef Lekha Shlomoh, Ḥoshen Mishpat</i>, no. 3; <i>Teshuvot ve-Hanhagot</i>, III, no. 439; and R. Ben Zion Ya’akov Woszner, <i>Divrei Mishpat</i>, III, 197-200.</i>
  Indeed, refusal to sign a submission to arbitration, which is a legal requirement necessary to enforce the decision of a <i>Bet Din</i> in a civil court, is itself grounds for issuance of a <i>siruv</i>. A host of authorities have ruled that, despite appearance before a <i>Bet Din</i> in response to a summons, failure on the part of the defendant to execute the necessary instrument designed to render the decision of the <i>Bet Din</i> enforceable by civil authorities is tantamount to contempt of the <i>Bet Din</i> with the result that the plaintiff may be given leave to apply to a secular court for relief.35<i class="footnote">See <i>Teshuvot Ne’ot Desha</i>, no. 51; <i>Teshuvot Divrei Ḥayyim</i>, II, Ḥoshen Mishpat, nos. 7 and 9; <i>Teshuvot Sho’el u-Meshiv, Mahadura Telita’a</i>, III, no. 125; <i>Teshuvot Ramaz, Ḥoshen Mishpat</i>, no. 6; and <i>Divrei Ge’onim</i>, I, no. 52, sec. 8.</i> The justification for this ruling is that the sole rational motive for refusing to sign such a submission is anticipation of an adverse decision by which the litigant does not intend to be bound. It is readily apparent that a person may agree to appear before a <i>Bet Din</i> with the hope, and even the anticipation, that he will prevail but with the intention that, should he lose, he will relitigate in a civil court on the chance that the results of a second round of litigation in a different forum will be more favorable to him. Such a stance is clearly both unacceptable and contemptuous. When the parties abide by the decision of the <i>Bet Din</i> there is no need for involvement of the secular judiciary. Hence agreement to accord the decision of the <i>Bet Din</i> the status of a civilly binding arbitration award poses no additional burden upon a litigant who sincerely intends to be bound by the decision of the <i>Bet Din</i>. Accordingly, refusal to grant such status to the decision of the <i>Bet Din</i> is tantamount to a declaration that the litigant refuses to be irrevocably bound by such a decision.
  III. Further Applications and Exclusions
  1. Rent Control
  As noted earlier, although litigants may not voluntarily accept the jurisdiction of non-Jewish courts, nor may they agree that their disputes be adjudicated by a <i>Bet Din</i> on the basis of civil law, there are areas in which the particular provisions of Jewish law may be incorporated either explicitly or impliedly in a contract and made binding upon the parties. For example, Jewish law provides that rent is not due until the conclusion of the rental period. That provision is subject to variance by explicit agreement of the parties. In a locale in which it is common practice to pay rent in advance, the presumption is that the parties intend to be governed by the accepted practice. Unless otherwise stipulated, the <i>minhag ha-soḥarim</i>, or common trade practice, becomes an implied condition of the contract. Any dispute with regard to the existence or nature of an accepted trade practice must, of course, be adjudicated by a <i>Bet Din</i>. At times, the practice arises because of provisions of the legal system that are binding upon the society at large. Such laws, in effect, give birth to an accepted practice which, in turn, becomes an implied condition of contracts executed in jurisdictions in which those laws are binding.
  <i>Minhag ha-soḥarim</i> are a case in point. Such laws may or may not be independently binding as social welfare legislation by virtue of <i>dina de-malkhuta dina</i>, the law of the land is the law. Resolution of that question is contingent upon careful analysis of the various theories propounded by early-day authorities regarding the basis and parameters of the halakhic principle of <i>dina de-malkhuta</i>.36<i class="footnote">See, for example, R. Meir Arak, <i>Teshuvot Imrei Yosher</i>, II, no. 153, sec. 2, and R. David Menachem Babad, <i>Teshuvot Ḥavaẓelet ha-Sharon, Ḥoshen Mishpat</i>, no. 8.</i> Such an analysis is beyond the scope of this undertaking. But, even if rent control laws are not halakhically binding <i>per se</i> as <i>dina de-malkhuta</i>, many contemporary authorities have maintained that, since those laws are generally accepted, they become implied conditions of all rental agreements.37<i class="footnote">See, for example, <i>Erekh Shai, Ḥoshen Mishpat</i> 312:5 and Rabbi Yosef Eliyahu Henkin, <i>Teshuvot Ivra</i>, no. 96, sec. (1) 8 and sec. (2) 4, published in <i>Kitvei ha-Gra’i Henkin</i>, II (5749), 175 and 176. Cf., R. Joshua Pinchas Bombach, <i>Teshuvot Ohel Yehoshu‘a</i>, nos. 10-11. Rabbi Henkin apparently maintains that such laws are also valid on the basis of the intrinsic application of <i>dina de-malkhuta</i>. See <i>Teshuvot Ivra</i>, no. 96, sec. 1(4). The decision of <i>Erekh Shai</i> may be seen as reflecting a similar view.</i> Regardless of whether rent control provisions are binding as <i>dina de-malkhuta</i>38<i class="footnote">See R. Eliezer Waldenberg, <i>Ẓiẓ Eli‘ezer</i>, IV, no. 28, secs. 11-12, and V, no. 30, sec. 4; <i>Piskei Din shel Batei ha-Din ha-Rabbaniyim be-Yisra’el</i>, XVII, 195; and <i>supra</i>, note 37.</i> or as <i>minhag ha-soḥarim</i>,39<i class="footnote">An interesting aspect of that position is discussed by R. Chanoch Cohen in a short contribution to the Tishrei 5711 issue of <i>Ha-Ma’or</i>. A landlord demanded that his tenant either accept a sizable increase in rent or vacate the premises. Pleading the provision of the applicable rent control law, the tenant refused to do either. Thereupon the landlord declared his property to be <i>konam vis-à-vis</i> the tenant, i.e., he involved a principle of Jewish law that empowers an individual to render any benefit from the property impermissible to another person or persons upon pain of religious transgression. If the landlord had the halakhic power to declare a <i>konam</i>, the tenant would have had no choice but to vacate the premises. Rabbi Cohen asserts that, in this situation, the landlord was powerless to do so.Without analyzing the grounds for the applicability of the principle, Rabbi Cohen asserts that <i>dina de-malkhuta</i> serves to vest a leasehold interest in the tenant. Since a <i>konam</i> is not valid if it would serve to extinguish a property interest of another individual, he argues that a <i>konam</i> cannot be employed to interfere with a legitimate right of tenancy. However, Rabbi Cohen’s argument is subject to dispute. <i>Shulḥan Arukh, Yoreh De‘ah</i> 221:1, records a controversy among earlier authorities with regard to whether a tenancy constitutes a property interest of sufficient strength to prevent a <i>konam</i> from becoming effective. Citing <i>Tosafot, Arakhin</i> 21a, Rabbi Cohen infers that all authorities would concede that a <i>konam</i> cannot be imposed in the presence of a tenancy in perpetuity. Assuming that is correct, it is nevertheless highly doubtful that rent control regulations have the effect of establishing a tenancy in perpetuity.</i> any dispute between a landlord and a tenant must be resolved before a <i>Bet Din</i>. Despite the fact that in its salient features it is secular law that is administered, the law is binding upon Jews because <i>dina de-malkhuta</i> and <i>minhag ha-soḥarim</i> are Jewish law principles. The prohibition against recourse to <i>arka'ot shel akum</i> is not waived on account of the non-Jewish provenance of the particular law or regulation to be applied. Accordingly, any disputes between the contracting parties must be resolved by a <i>Bet Din</i>. To be sure, the judges sitting on the <i>Bet Din</i> may themselves not be familiar with rent control law since it is entirely secular in nature. Nor, for that matter, since they are not tradesmen, are they likely to be familiar with other matters of common trade practice. Matters of common trade practice can be established by a <i>Bet Din</i> by inviting expert testimony, i.e., the testimony of tradesmen who are knowledgeable regarding the customs of their trade. The provisions of rent control law can similarly be made known to the <i>Bet Din</i> by means of the testimony of impartial attorneys or academics who are expert in that area of law.
  2. Election Law
  Less obvious is a situation involving laws governing the electoral process. An incident was widely related a number of years ago involving a primary election in a district having a large Jewish electorate. Both the incumbent and his challenger were observant Jews. The incumbent alleged that the petitions filed on behalf of his opponent were defective by virtue of not being in conformity with one or another of the Byzantine-like provisions of the election law of the State of New York. Accordingly, the incumbent brought suit in New York Supreme Court to have the name of his opponent removed from the ballot. To his surprise, he found himself the recipient of a summons to appear before a <i>Bet Din</i>. His opponent alleged that, as observant Jews, they were duty-bound to adjudicate the dispute before a <i>Bet Din</i>, rather than before a state court, despite the fact that the issue at stake involved a question of conformity with state law. The issue was indeed adversarial and involved the right to contend for a remunerative position. Whether or not the challenger's halakhic contention has merit is itself a matter to be determined by rabbinic decisors, as is the issue of whether the <i>Bet Din</i>, assuming it has jurisdiction insofar as Jewish law is concerned, must apply state law in issuing a judgment or whether Halakhah recognizes other principles as governing even in a contest involving a right born of the statutes of a secular state.
  3. Custody Disputes
  There are indeed matters with regard to which the American legal system does not recognize the authority of a <i>Bet Din</i> even when the concerned parties submit to its jurisdiction. The status of a <i>Bet Din</i> in the eyes of American law is that of a panel of arbitrators but there are some matters that, in the eyes of the American legal system, cannot be submitted to binding arbitration. Child custody is probably the best example of a matter that cannot be submitted to binding arbitration. The underlying reason is the <i>parens patriae</i> doctrine, i.e., the notion that the State is the ultimate guardian of each of its citizens and thus it is the State, and the State alone, that must determine what is in the best interests of the child.
  Nevertheless, such matters do fall within the jurisdiction of the <i>Bet Din</i>. Jewish law enunciates a principle very similar to the <i>parens patriae</i> doctrine in its principle that the <i>Bet Din</i> is "the father of orphans" (<i>avihem shel yetomim</i>). The <i>Bet Din</i> also makes custody awards on the basis of the best interests of the child, albeit the weight assigned by a <i>Bet Din</i> to a particular factor may not be identical to that assigned by a secular court. Custody also involves an adversarial dispute since it involves the privilege and <i>mizvah</i> of nurturing and rearing a child. In that sense, the underlying issue is similar to that involved, for example, in a dispute regarding a <i>ḥazakah</i>, or established prerogative, pertaining to sounding the <i>shofar</i> in a synagogue on <i>Rosh ha-Shanah</i> or of serving as reader of the prayer service. Such matters are certainly within the competence of a <i>Bet Din</i> and dare not be brought before gentile courts.
  The fact that the secular legal system does not recognize the authority of arbitrators with regard to child custody is of no material significance insofar as the prohibition of having recourse to <i>arka'ot shel akum</i> is concerned. The courts intervene in such matters only when a dispute is brought before them. Other than in egregious cases in which a child is taken from a parent because he or she is found to be incompetent to care for the child, the law does not interfere with parental decisions, including decisions pertaining to custody. Thus, as long as both parents continue to respect the decision of the <i>Bet Din</i>, the courts will not intrude. A dissatisfied parent has the legal right to attempt to overturn the decision of the <i>Bet Din</i> by bringing the matter to court. But he or she does not have the halakhic right to do so. The prohibition " 'Before them'—but not before gentile courts" remains in effect.
  4. Insurance Indemnification
  A serious question involving the prohibition against having recourse to gentile courts arises in situations in which the defendant has insurance coverage but the insurance company refuses to settle the claim. For example, drivers and owners of vehicles involved in automobile accidents are generally covered by insurance for both personal and property damage. In conformity with the terms of its contract, the insurance company is bound to indemnify the insured up to a maximum amount, but only if the insured is found to be legally liable. The insurance company may agree to a settlement in order to avoid litigation or it may refuse compensation unless and until the plaintiff secures a judgment in a court of law. Jewish litigants who regard themselves to be bound by the dictates of <i>Shulḥan Arukh</i> would, of course, wish to have a <i>Bet Din</i> determine liability. Unfortunately, however, insurance policies do not provide for recourse to a <i>Bet Din</i> and do not grant the insured the prerogative of submitting the matter to an arbitration panel. Thus, the insurance company will not be bound by a decision of a <i>Bet Din</i> or of an arbitration panel. The defendant who is ordered to pay damages by a <i>Bet Din</i> will have no recourse against his insurance carrier.
  Despite the fact that it is the tortfeasor rather than the insurance company who is the named defendant and that any mention of insurance coverage in the courtroom may be grounds for a mistrial, the real party in interest is the insurance company. Nevertheless, it is common knowledge that most people carry insurance for claims of such nature. Since it is readily perceived that the cause of action is really against a non-Jewish insurance company that will not appear before a <i>Bet Din</i>, it would appear that judicial proceedings in such circumstances do not constitute either a renunciation of the Law of Moses or voluntary aggrandizement of a non-halakhic legal system and hence such suits are not forbidden. To employ Rambam's phraseology and its underlying theory, this, too, is an example of a necessary measure designed to "rescue" funds that would not otherwise be forthcoming. Of course, if the amount awarded by the jury or by the court is in excess of the amount covered by insurance, recovery of the excess from the defendant's personal funds is not permissible other than pursuant to a decision of a <i>Bet Din</i> that such an award is consistent with the provisions of Jewish law.40<i class="footnote">Recovery of an award from an insurance company, even if all of its principals and shareholders are Jewish, is permissible even in a situation in which Jewish law does not recognize tort liability. Such recovery is permissible because of the contractual undertaking of the insurer to indemnify against any civil judgment. However, when forced to pay a claim, the insurance company may subsequently increase the premium for further coverage. For a discussion of whether the insured has a claim against the plaintiff for reimbursement for such additional charges in instances in which Halakhah does not recognize a claim in tort see R. Moshe Sternbuch, <i>Teshuvot ve-Hanhagot</i>, III, no. 444.</i> A litigant who accepts an award of a civil court to which he is not entitled under Jewish law is guilty of theft and becomes disqualified from serving as a witness.41<i class="footnote">See R. Shimon ben Ẓemaḥ Duran, <i>Tashbaẓ</i>, II, no. 290 and R. Akiva Eger, Ḥoshen Mishpat 26:1. See also <i>Ḥut ha-Meshulash</i>, I, no. 19; <i>Teshuvot Yakhin u-Bo‘az</i>, I, no. 6 and II, no. 9; and <i>Teshuvot Radvaz</i>, IV, no. 1190. An earlier source, <i>Teshuvot ha-Rashba</i>, cited by <i>Bet Yosef, Ḥoshen Mishpat</i> 26, similarly categorizes a person who accepts a recovery under such circumstances as a thief. Rabbi Batzri, <i>Dinei Mamonot</i>, I, 346, explicitly includes recovery in Israeli <i>Batei Mishpat</i> in this categorization.</i>
  5. Non-Observant Defendants
  The ostensive need for leave from a <i>Bet Din</i> in the form of a <i>siruv</i> presents a formidable hurdle in instituting legal proceedings against fellow Jews who are both unknowledgeable and uncaring with regard to the halakhic obligation to adjudicate disputes before a <i>Bet Din</i>. The prohibition against having recourse to <i>arka'ot shel akum</i> applies equally with regard to observant and non-observant defendants. However, in the case of the totally non-observant, it is more than probable that they will spurn any attempt to bring the matter to a rabbinic tribunal.
  In theory a Jew who wishes to initiate proceedings even against a gentile is obligated to bring suit before a <i>Bet Din</i>. That point is stated explicitly by <i>Tashbaz, Hut ha-Meshulash</i>, III, no. 6 and by <i>Divrei Ge'onim</i> 52:15 in the name of R. Aḥa'i Ga'on, <i>She'iltot, Parashat Mishpatim</i> and <i>Parashat Shofetim</i>.42<i class="footnote">This statement does not appear in the published versions of <i>She’iltot</i>. See <i>Dinei Mamonot</i>, I, 347, note 9.</i> Yet, in practice, no <i>Bet Din</i> issues a summons directing a non-Jew to appear before it for purposes of litigation. <i>Divrei Ge'onim</i> justifies failure to summon gentiles to appear before a <i>Bet Din</i> by declaring that gentiles "do not hearken to our law" and hence a Jew is permitted to have recourse to a gentile court in order to rescue his property but adds that when such is not the case and, <i>a fortiori</i>, when the gentile himself expresses a desire for the dispute to be resolved by a <i>Bet Din</i> "it is elementary that [a Jew] is forbidden to bring him before gentile courts."43<i class="footnote">See also <i>Dinei Mamonot</i>, I, 347.</i> If so, why in the case of a Jewish defendant is it necessary to obtain prior leave from a <i>Bet Din</i> whereas in the case of a non-Jew the established practice confirms that no such leave is necessary?
  <i>Netivot ha-Mishpat</i> 26:3 declares that a <i>Bet Din</i> may permit a Jewish plaintiff to apply for relief in a gentile court only in situations in which it is clear to the <i>Bet Din</i> beyond doubt that the Jew is halakhically entitled to the relief for which he prays. Analyzing that comment, <i>Orḥot ha-Mishpatim</i> raises a rather obvious concern. What should a Jew do in such a situation? The defendant refuses to appear before the <i>Bet Din</i>, but the <i>Bet Din</i> declines to grant leave to apply to a civil court. In such a situation, must the plaintiff bear his loss with equanimity? <i>Orḥot ha-Mishpatim</i> advances the thesis that, insofar as biblical law is concerned, there is no prohibition against having immediate recourse to a gentile court against a "powerful" (<i>ilem</i>) defendant who is known to flaunt the authority of rabbinic judges. As authority for that position, <i>Orḥot ha-Mishpatim</i> cites <i>Yam shel Shlomoh, Bava Kamma</i> 8:65, who states that in such cases "it is an edict dictated by the practice of Jewish courts not to litigate before gentile courts other than upon receipt of permission." <i>Orḥot ha-Mishpatim</i> adds that the purpose of obtaining leave from a <i>Bet Din</i> is to be able to recover legal expenses in accordance with Jewish law, i.e., such expenses are recoverable in Jewish law only if they are incurred with explicit permission of a <i>Bet Din</i>. Thus, even according to <i>Netivot ha-Mishpat</i>, a Jew may have recourse against a recalcitrant defendant in <i>arka'ot shel akum</i> whenever he himself is certain of the validity of his claim in Jewish law but he will not be entitled to collect the expenses of such litigation unless he is able to obtain prior leave of the <i>Bet Din. Kesef ha-Kodoshim, Hoshen Mishpat</i> 26:2, goes somewhat beyond this position in declaring that, with regard to a person known to have no regard for the authority of a <i>Bet Din</i>, there is, in effect, constructive leave to apply to gentile courts. See also R. David Letier, <i>Teshuvot Bet David</i>, no. 141.
  As stated by <i>Orḥot ha-Mishpatim</i>, it is certainly to be presumed that a non-Jew will not accept the authority of a <i>Bet Din</i>. Hence, according to <i>Yam shel Shlomoh</i>, there exists no biblical requirement to summon the non-Jew to appear before a rabbinic tribunal. Nor is there any evidence that rabbinic enactments requiring prior leave from a <i>Bet Din</i> extend to suits against non-Jews. Since the summons of a <i>Bet Din</i> would invariably be ignored by a gentile, a <i>siruv</i> would be a mere formality and would serve no useful purpose. Accordingly, no <i>siruv</i> is needed in order to institute proceedings against a non-Jew in secular courts. If so, it may be argued that, since the non-observant would similarly routinely ignore the summons issued by a <i>Bet Din</i>, no purpose would have been served by including cases against totally non-observant individuals in such rabbinic enactments.44<i class="footnote">See also the discussion of Rabbi Sternbuch in his <i>Teshuvot ve-Hanhagot</i>, III, no. 445. Cf., <i>ibid</i>., III, no. 441, where Rabbi Sternbuch advises that in such instances the defendant should be summoned once to appear before a <i>Bet Din</i> for the sake of the “honor of the <i>Bet Din</i>.” R. Yitzchak Ya’akov Weisz, <i>Teshuvot Minḥat Yiẓḥak</i>, IX, no. 155, sec. 2, advises the issuance of a single summons or, if that is deemed to be purposeless by the <i>Bet Din</i>, that leave be formally obtained from the <i>Bet Din</i> to proceed with litigation in a civil court.</i>
  Although application for a formal <i>siruv</i> in cases involving a completely unobservant defendant may be unnecessary, nevertheless, in an age in which alternative dispute resolution is encouraged and in which many non-observant Jews are open to the heritage of Judaism, information concerning the function and availability of <i>Batei Din</i> should definitely be communicated to the defendant together with an offer to submit to binding arbitration before a <i>Bet Din</i>.45<i class="footnote">Cf., <i>Teshuvot ve-Hanhagot</i>, III, no. 445.</i> Many litigants may not be willing to accept adjudication by a <i>Bet Din</i> but may be receptive to arbitration before a secular arbitration panel. In the opinion of this writer, in such circumstances, acceptance of secular arbitration by the plaintiff is certainly praiseworthy but is not mandatory if the plaintiff believes that a court is more likely to grant an award in, or closer to, the amount he is entitled to recover according to Jewish law.
  
  Chapter II Rabbinic Confidentiality
  
  <i>"The secret of God is with those who fear Him" (Psalms 25:14). Said Rabbi Simeon: There is no secrecy for heavenly beings, but for terrestrial beings there is secrecy</i>.
  MIDRASH SHOHAR TOV 25:14
  I. The Recent Judicial Proceeding
  "Can you trust your rabbi?" is the question raised in the minds of many in the wake of a high profile New York law case. A late 1998 decision of a Justice of the New York Supreme Court holding one rabbi liable for damages resulting from the violation of the confidence of a congregant and ordering an evidentiary hearing for clarification of certain disputed facts in the case of a second rabbi has caused consternation in diverse quarters.
  Inaccurate and provocative media reports further heightened interest in the case. Many, including the judge, were shocked not so much at the breach of confidence itself but at the argument of the defense that the defendants' actions, in the case in question, were mandated by Jewish law. Those more familiar with the applicable provisions of Jewish law were equally shocked not so much at the court's headlong thrust into a quagmire of factual, legal and constitutional issues as by its wholly improper and injudicious excoriation of the defendants' invocation of "the protection of the Torah" in defense of their conduct. That conduct, which the defendants unquestionably believe to be not only permitted but mandated by Jewish law, is described by the Court as conduct that "so transcends the bounds of decency as to be regarded as both intolerable and atrocious." Remarkably, not a scintilla of proof was adduced charging the defendants either with misrepresentation of Jewish law or challenging their good faith in its application.
  In substituting its own unqualified (mis)understanding of Jewish law for that of two erudite and respected rabbis, whose stature within their community was acknowledged by the Court itself, the Court has engaged in as blatant an example of judicial <i>chutzpah</i>1<i class="footnote">With the occurrence of the term “<i>chutzpah</i>” in a recent U.S. Supreme Court decision, <i>National Endowment of the Arts v. Finley</i>, 118 S. Ct. 2168 (1998), the term has become firmly ensconced in legal parlance. For an interesting survey of earlier judicial decisions in which the term has appeared as well as of its connotations see Jack Achiezer Guggenheim, “The Evolution of <i>Chutzpah</i> as a Legal Term: The <i>Chutzpah</i> Championship, <i>Chutzpah</i> Award, <i>Chutzpah</i> Doctrine, and Now, the Supreme Court,” <i>Kentucky Law Journal</i>, vol. 87, no. 2 (1998-99), pp. 417-438.</i> as has been seen in recent years. In allowing such a determination to color its decision the Court exposes itself to a charge of breaching the wall of separation between Church and State. Moreover, in interpreting the statute in question as requiring clergymen to govern their professional conduct in a manner they find to be religiously offensive the Court has probably violated the right of free exercise of religion guaranteed by the First Amendment.2<i class="footnote">In an earlier period of constitutional law jurisprudence it would have been obvious that the defendants might have asserted a free exercise claim in support of an exemption to an obligation of confidentiality arising from the statute. Whether or not they would prevail would have depended upon a demonstration of a counter-vailing compelling state interest in barring their testimony. Although in New York as well as in many other states the privilege is vested in the communicant, an analysis of the history of the clergy-penitent privilege indicates that it arose from a perceived need to protect from citation for criminal contempt Catholic priests who are barred by canon law from violating the sanctity of the confessional regardless of the consequence to themselves. See Edward M. Cleary, <i>McCormick on Evidence</i>, 4th edition (St. Paul, 1992) §76.2. Indeed, although of dubious constitutional validity, the statutes of some states, including Idaho (Idaho Code §9-203) (Michie 1948), Illinois (Ill. Comp. Stat. 5/8-803) (West 1992), Montana (Mont. Code Ann. §26-1-804) (1997), Utah (Utah Code Ann. §78-24) (1996), Washington (Wash. Rev. Code Ann. §60.060) (West 1995) and Wyoming (Wyo. Stat. §1-12-101) (1977), still restrict the privilege to penitential communications in the course of discipline “enjoined by the church,” i.e., by a religious denomination requiring confession. Michigan (Mich. Comp. Laws Ann. §600.2156) (West 1986) similarly limits the privilege to confessions made “in the course of discipline enjoined by the rules or practice of such denomination.” The applicable Vermont statute (Vt. Stat. Ann. 12, § 1607) (1947) provides even more explicitly that “A priest or minister of the gospel shall not be permitted to testify in Court to statements made to him by a person under the sanctity of a religious confessional.” Oregon (Or. Rev. Stat §40.260) (1981) extends the privilege to communications made to a clergyman “authorized or accustomed to hearing confidential communications” but only if “under the discipline or tenets of that church” the clergyman “has a duty to keep such communications secret.” See, however, <i>infra</i>, note 54. Moreover, despite its historical origin, other justifications have been advanced for recognition of the privilege. See <i>infra</i>, pp. 64-65. However, regardless of any particular rationale adopted in defense of the privilege, it would be difficult to argue that the State has the same compelling interest in encouraging free and open communication between a clergyman and a congregant as it has between a physician and a patient or even between an attorney and a client. However, the decision of the U.S. Supreme Court in Employment Division, <i>Oregon Department of Human Resources</i> v. <i>Smith</i>, 494 U.S. 872 (1990), 110 S. Ct. 1595, 108 L.Ed2d 876, had the unfortunate effect of emasculating the freedom of religious practice previously regarded as guaranteed by the Free Exercise Clause of the First Amendment. The court ruled that general laws which are religion-neutral and generally applicable, but have the incidental effect of burdening religious practice, are not unconstitutional.It should, however, be noted that in at least one case a New York court has held that the decision of the U.S. Supreme Court in <i>Employment Division</i> v. <i>Smith</i> does not curtail the right to free exercise of religion guaranteed by article I, §3 of the New York State Constitution. Despite the similarity of the state and federal provisions, the New York court declared:[T]his Court cannot ignore the New York Court of Appeals' long history and commitment to the protection of individual rights and liberties beyond those afforded by the U.S. Constitution, and federal constitutional law. Given this history and commitment … and the importance of this free exercise right, it is hard to imagine that New York would not continue to apply a "strict scrutiny" standard of review, and a balancing of the state's competing interests and the fundamental rights of the individual.See <i>In re Rourke</i>, 159 Misc.2d 324, 327, 328, 603 N.Y.S.2d 647, 650. [Cf., however, <i>In re Miller</i>, 252 A.D.2d 156, 158, 684 N.Y.S.2d 368, 370 (A.D. 4Dept. 1998), in which the Court noted that the Court of Appeals “has not definitively stated whether the scope of [N.Y. Const. art I, §3] is coextensive with the Free Exercise Clause of the First Amendment of the U.S. Constitution, nor has it decided whether the analytical approach adopted by the United States Supreme Court in <i>Employment Div., Ore. Dept. of Human Resources</i> v. <i>Smith, supra</i>, should be applied in resolving claims that N.Y. Constitution article I, §3, has been violated.”] Such a balancing test with regard to the clergyman-penitent privilege was earlier applied in <i>In re Fuhrer</i>, 100 Misc.2d 315, 318, 419 N.Y. S.2d 426, 429 (1979). See <i>infra</i>, note 40.There are two reported cases in other states in which tort actions were brought against clergymen who revealed confidential communications. In each of those cases the court acknowledged that if the breach of confidence occurred pursuant to religious doctrine the clergyman might indeed be immune to tort liability.In <i>Snyder</i> v. <i>Evangelical Orthodox Church</i> (1989), 216 Cal. App.3d. 217, 264 Cal. Rptr. 640, the plaintiffs confessed their adulterous relationship to members of the church hierarchy. Despite a promise of confidentiality, those confidences were divulged to the assembled congregation in the course of Sunday services as well as to a “gathering of local priests, ministers, pastors and guests.” The plaintiffs asserted claims, <i>inter alia</i>, for breach of a fiduciary duty of confidentiality and infliction of emotional distress. The California Court of Appeal for the Sixth District noted that the record did not show whether it is a canon of respondents’ belief that confessions (penitential or not) are revealed to the congregation unless the offender repents; whether it is church practice for the substance of a confession to be shared among church officials; or whether it is consistent with church doctrine to reveal the substance of a confession to anyone outside the church, and if so, under what circumstances.If so, declared the court, “The court must next consider whether the interests which are invaded by respondents’ religious practices are of sufficiently significant interest to the state to warrant the application of tort liability.” The Court of Appeal then proceeded to spell out in detail the balancing test to be applied.More recently, <i>Alexander</i> v. <i>Culp</i>, 124 Ohio App.3d 13, 705 N.E.2d 78, addressed the case of a plaintiff who met with a clergyman for marital counseling in the course of which he disclosed that he had engaged in a number of extramarital liaisons and was currently involved in an adulterous relationship. The clergyman revealed that information to the plaintiff’s wife. In addition, the clergyman advised the wife that her husband was unworthy of trust and counseled her to obtain a restraining order against the husband, to change the locks on the doors of the marital home and to initiate divorce proceedings. The Ohio appellate court found the factual allegations sufficient to state a viable claim for common law negligence. In <i>Alexander</i>, the defendant did not assert a free exercise claim based upon a religious obligation to inform the wife of her husband’s adultery. The Court explicitly noted, “Whether a particular case interferes with First Amendment freedoms can be determined on a case by case basis.”Apart from the foregoing, it seems to this writer that even in the post-<i>Smith</i> era Justice Goldstein’s interpretation of CPLR 4505 renders it unconstitutional in its application as a vehicle to prevent clergymen from disclosing information when they feel that they are required to do so by the tenets of their faith. <i>Smith</i> limits the restriction imposed by the Free Exercise Clause to legislation specifically designed to impede or regulate religious practices. CPLR 4505, bearing the title “Confidential Communication to clergy privileged” targets religious functionaries exclusively. The burden that, in Justice Goldstein’s opinion, it places upon clergymen is not at all incidental to general and neutral enforcement of a statute but, since it singles out clergy for imposition of the burden flowing from the privilege, is a direct regulation of religious conduct.Moreover, although it is less obvious, the statute as interpreted by Justice Goldstein, may offend the Establishment Clause. Previously, rabbis were receptive to congregants seeking to unburden themselves in the belief that they were free to act in accordance with the obligations imposed upon them by Jewish law in dealing with information revealed in confidence. However, unlike Catholic priests, rabbis do not have an absolute obligation to hear “confession” or to allow themselves to become privy to a confidential communication. In the wake of the decision in <i>C. L.</i> v. <i>Flaum</i>, a rabbi may very well decide that, in order to avoid conflicting halakhic and legal obligations as well as possible legal sanctions, he will decline to receive confidential communications. As a direct result, the congregant will be deprived of the advice, guidance, solace and comfort of his clergyman. Since such ministration is readily available from clergy of other faiths, the effect is to grant preference to those faiths over Judaism and even to motivate penitents to seek out clergy of those religions rather than rabbis of the Jewish faith. Arguably, a statute having that effect is in violation of the Establishment Clause.</i>
  Together with those of many other states, the laws of the State of New York provide that communications to a clergyman are privileged in the sense that the clergyman cannot be required to "disclose a confession or confidence made to him in his professional character as spiritual advisor unless authorized to do so by the communicant." This provision, incorporated in §4505 of the CPLR, is included among statutes regulating admissibility of evidence in legal proceedings, thereby making communications to a clergyman privileged much in the same manner that interspousal communications, communications by a client to his or her attorney and by a patient to his or her physician are privileged. The purpose of granting legal privilege to such communications is to encourage free and open discourse between the individuals to whom the privilege is extended. The New York statute provides that the privilege can be waived only by the person confiding in the clergyman.
  On its surface the statute does no more than restrict the admissibility of testimony of the clergyman in a court of law. Nevertheless, in a decision issued on November 18, 1998 in <i>C. L</i>.3<i class="footnote">The full name of the plaintiff has been omitted for obvious reasons. In contradistinction the role of the defendants redounds to their credit rather than to their embarrassment.</i> v. <i>Rabbi Tzvi Flaum and Rabbi David Weinberger</i>4<i class="footnote"><i>New York Law Journal</i>, November 24, 1998, p. 29, col. 4.</i> and reissued with revisions on March 4, 1999,5<i class="footnote">179 Misc.2d 1007, 687 N.Y.S.2d 562 (Sup. 1999).</i> Justice David Goldstein, sitting in the New York Supreme Court in Queens County, ruled that a woman whose confidence had allegedly been breached by the named clergymen was entitled to sue for damages.
  The woman, who had been separated from her husband, was involved in a dispute over which parent should be awarded custody of the couple's four daughters. The husband submitted separate affidavits signed by the two rabbis in which they expressed the opinion that the spiritual welfare and general well-being of the children would best be preserved by awarding custody to the father. In support of that conclusion the rabbis cited various facts concerning the mother's religious behavior and comportment that she had disclosed to them, allegedly in confidence. This information was incorporated in a sealed matrimonial file and disclosed only to the Court having jurisdiction over the custody proceeding. Despite those facts, Justice Goldstein, in a separate action, found that, in submitting their affidavits and in discussing the matter with her husband, the rabbis had breached a fiduciary duty of confidentiality owed to the plaintiff.6<i class="footnote">The reason underlying Justice Goldstein’s ruling that the plaintiff is entitled to compensation for damages sustained as a result of the rabbis’ breach of confidence is less than clear. The statute in question establishes a rule of evidence and, at least on its surface, nothing more. The statute does not command a clergyman to respect confidences, does not brand disclosure on the part of the clergyman a breach of contract and does not declare such breach to constitute an actionable tort. In a recent case, <i>Alexander</i> v. <i>Culp</i>, 124 Ohio App.3d 13, 18, 705 N.E.2d 378, 381, the Court of Appeals of Ohio ruled explicitly that a statute prohibiting a clergyman from testifying with regard to a confidential communication does not protect the communicant from disclosure outside legal proceedings. [The sole jurisdiction to impose sanctions for violation of the privilege is Tennessee. Tenn. Code Ann. §24-1-206 (1989) makes violation of the statute a misdemeanor punishable by imprisonment for a period not greater than thirty days and/or a fine not to exceed fifty dollars. The penal sanction is apparently imposed only for disclosure “in giving testimony as a witness in any litigation” but does not apply to breach of confidence in other contexts.] Of course, one might argue that it is an evident condition of the contract between a patient and his physician, a client and his attorney and a congregant and his clergyman that confidences be held inviolate. Alternatively, one might argue that the duty arising from the professional relationship is fiduciary in nature and hence its breach constitutes a tort. [Some courts have found that individuals have a constitutionally protected interest in maintaining the privacy of medical information. See, for example, <i>Doe</i> v. <i>City of New York</i>, 15 F.3d 264 (2d Cir. 1994). The constitutionally protected right of privacy would arguably extend to other types of personal information as well. See, however, <i>Paul</i> v. <i>Davis</i>, 424 U.S. 693 (1976), in which the Supreme Court held that the constitutional right of privacy does not include the right to keep private information confidential. In any event, a constitutional right of privacy can be asserted only against government officials or when there is some form of government involvement, e.g., funding provided to a hospital.] Moreover, those arguments might be made even in the absence of a statute establishing an evidentiary privilege. Were this the Court’s reasoning, an appeal to the statute would serve only as evidence of the underlying contractual obligation or fiduciary relationship. The statute, then, serves as evidence of liability but not as the source of such liability. Nevertheless, in ordering a hearing in the case against one of the rabbis for the purpose of determining whether or not a third party was present when the conversation took place, the Court seems to assume that liability can exist only if it is generated by the statute. The presence or absence of a third party is crucial with regard to the privileged nature of the communication in so far as its exclusion from evidence is concerned; contractual and fiduciary responsibilities, however, are generally not affected by the presence or absence of third parties.</i>
  The latter point, i.e., the determination that discussion of the matter with the husband, as distinct from submission of an affidavit in connection with the custody proceedings, constitutes a breach of a duty of confidentiality is puzzling since the only substantive confidential information disclosed to the rabbis by Mrs. L. was that she had ceased the practice of monthly immersion in a ritualarium in order to deny her husband consortium. Obviously, that goal, as announced by Mrs. L. herself, could not be achieved without the husband's awareness of his wife's failure to attend the ritualarium. It is difficult to understand how disclosure of information to an individual to whom the confider had already divulged the selfsame information constitutes a breach of confidence. It is even more difficult to understand how such disclosure could cause further damage that might give rise to a cause of action.
  With regard to the alleged breach of a fiduciary duty in submitting the affidavits, the Court ruled not only that the plaintiff is entitled to recover damages but that the action of the rabbis
  was not only improper, it was outrageous and most offensive, especially considering the status and stature of these defendants within the community, a standard which they readily abdicated here. From what was done, it is palpably clear why this determination is one of the apparent first impression—no member of the clergy … would dare breach the sanctity of his or her office to make public the type of confidential, private disclosures at issue in this case….
  Moreover, to violate such basic rights under the guise of religious necessity, conviction or the protection of the Torah, is not only wrong, it is outrageous….7<i class="footnote">179 Misc.2d at 1016, 687 N.Y.S.2d at 569-570.</i>
  …Bearing in mind the sanctity to be accorded such communications between clergy and penitent, and the necessity for confidentiality in conjunction with such spiritual counseling, without the fear of any reprisal or disclosure, it is both outrageous and intolerable that such communications would be revealed, even where, as here, this occurs in part in the context of a judicial proceeding. In my view, the conduct so transcends the bounds of decency as to be regarded as both intolerable and atrocious….8<i class="footnote">179 Misc.2d at 1019, 687 N.Y.S.2d at 571.</i>
  The Court's deprecatory reference to "the guise of religious necessity, conviction" and "the protection of the Torah" betrays a profound ignorance of Jewish law. Far from being wrong, much less outrageous, the action of the rabbis (who together with the husband's attorney believed both that their affidavits were admissible as evidence9<i class="footnote">There is indeed strong support for the argument that, despite the unqualified privilege expressed in CPLR 4505, the testimony of a clergyman with regard to a privileged communication should be regarded as admissible in a custody proceeding. Although there is no case law dealing with the clergyman-penitent privilege within the context of a child custody proceeding, New York courts have repeatedly held that the physician-patient, attorney-client and psychotherapist-patient privileges cannot be invoked in such proceedings.Some forty years ago, in <i>People ex rel. Fields</i> v. <i>Kaufman</i>, 9 A.D.2d 375, 377, 193 N.Y.S.2d 789, 791 (1st Dep’t 1959), the Supreme Court, Appellate Division, First Department, ruled that confidential psychiatric, psychological and social welfare reports concerning rehabilitation of a mother following paralytic poliomyelitis must be made available to the opposing party. In refusing to recognize the privileged nature of that information the Court declared:Where the welfare of children is concerned and in furtherance of the duty of the State as <i>parens patriae</i>, courts are not so hidebound or limited that they may not depart from strict adversary concepts. By analogy, it appears that so important is the duty of the State deemed to be in its role as <i>parens patriae</i>, so vital is its concern for its infant wards, that from birth to maturity their welfare is paramount even when compared with the rights of the natural parents.That position was affirmed by the Court of Appeals in <i>Kessler</i> v. <i>Kessler</i>, 10 N.Y.2d 445, 452, 225, N.Y.S.2d 1,5 (1962). In <i>People ex rel. Chitty</i> v. <i>Fitzgerald</i>, 40 Misc.2d 966, 967, 244 N.Y.S.2d 441, 442 (Sup. Ct. Kings Co. 1963), the Court followed that principle in disregarding the patient-physician privilege on the grounds that “the right of the petitioner to invoke the patient-physician privilege must yield to the paramount rights of the infant. ”In <i>Baecher</i> v. <i>Baecher</i>, 58 A.D.2d 821, 396 N.Y.S.2d 447, 448 (2d Dep’t 1997), <i>appeal denied</i> 43 N.Y.2d 645, 402 N.Y.S.2d 1026 (1978), in addition to invoking the <i>parens patriae</i> doctrine, the Appellate Division found yet additional grounds for admitting an otherwise privileged communication. The Court ruled that “the defendant waived his right to the privilege by actively contesting custody, thereby putting his mental and emotional well-being into issue.” The notion of automatic waiver in custody proceedings was also employed by the Supreme Court in an unreported case, <i>Conderre</i> v. <i>Conderre</i>, 1990 WL 312774, 1 (Sup. Ct. Suffolk Co. 1990). In that case, however, the court required that the medical records be reviewed by the court and that only those portions deemed to be relevant and material be disclosed. Again in <i>McDonald</i> v. <i>McDonald</i>, 196 A.D.2d 7, 13, 608 N.Y.S.2d 477, 481 (2d Dep’t 1954), the Second Department, citing <i>Baecher</i> and <i>Chitty</i>, declared that “it is well settled that in a matrimonial action, a party waives the physician-patient privilege concerning his or her physical condition (see CPLR 4504) by actively contesting custody.” See also <i>Proschold</i> v. <i>Proschold</i>, 114 Misc.2d 568, 451 N.Y.S.2d 956 (Sup. Ct. Suffolk Co. 1982).The question of an attorney-client privilege in custody cases was first addressed in New York by the Court of Appeals in <i>Jacqueline</i> v. <i>Segal</i>, 47 N.Y.2d 215, 222, 417 N.Y.S.2d 884, 888 (1979), at about the same time as the issue of psychotherapist privilege was being discussed by the Second Department in <i>Baecher</i> v. <i>Baecher</i>. The Court of Appeals cited precedents establishing that, insofar as the attorney-client privilege is concerned, “such right ought to depend on the circumstances of each case” in ruling that an attorney may be compelled to disclose the address of his client in order to prevent the unsuccessful litigant from frustrating the court’s judgment rendered in the best interests of the child.The public policy considerations upon which the clergyman-penitent privilege are based are surely no more weighty than the physician-patient or attorney-client privilege. As is the case with regard to those privileges best interests of minor children should take precedence over the policy considerations underlying the statutory clergyman-penitent privilege. Moreover, as is the case with regard to other statutory privileges, initiation of custody proceedings should be regarded as an automatic waiver of the clergyman-penitent privilege as it pertains to determination of which parent is better qualified to be entrusted with the care of minor children.</i> and that their testimony was likely to be persuasive) was both laudable and halakhically mandated.
  II. Confidentiality in Jewish Law
  1. The Sources and Nature of the Obligation
  Judaism does not recognize a particular fiduciary obligation of confidentiality in association with any professional relationship. Thus, for Judaism, there is no specific physician-patient, attorney-client or clergyman-penitent "privilege." But, at the same time, Judaism binds each and every one of its adherents, laymen as well as professionals, by an obligation of confidentiality far broader than that posited by any other legal, religious or moral system. Nevertheless, the privilege is neither all-encompassing in scope nor, when it does exist, is it absolute in nature.
  a) Leviticus 19:16
  Divulging personal information concerning another person is prohibited by Jewish law even when that information is not received in confidence. That prohibition is derived from the biblical verse "You shall not go as a bearer of tales among your people" (Leviticus 19:16). As formulated by Rambam, <i>Mishneh Torah</i>, <i>Hilkhot De'ot</i> 7:2: "Who is a talebearer? One who carries reports and goes from one person to another and says, 'So-and-so said this' or 'Such and such have I heard about so-and-so.' Even if he tells the truth, [the talebearer] destroys the world." Talebearing activity is forbidden even when it is not accompanied by malicious intent and even if the information is not derogatory in nature. That even non-malicious and non-derogatory talebearing is encompassed within the ambit of the prohibition is evident from the immediately following statement of Rambam: "There is a much more grievous sin than this that is included in their negative prohibition and that is 'evil speech' (<i>lashon ha-ra</i>), i.e., speaking derogatorily of one's fellow even though one speaks the truth." It is clear that, the phrase "such and such have I heard about so-and-so" does not refer to information divulged by "so-and-so" about himself whether in confidence or otherwise; the phrase connotes information communicated by a third party. Although disclosure of information revealed by a person concerning himself is certainly subsumed within the prohibition, Rambam's ruling makes it quite clear that disclosure is prohibited even though no breach of confidence is involved.
  Disclosure of a communication of non-personal information not within the public domain is also prohibited by Judaism unless prior permission for such disclosure has explicitly been granted. Thus, in effect, all communications are deemed confidential and hence privileged unless the privilege is waived. Moreover, with regard to derogatory personal information, a waiver does not constitute <i>carte blanche</i> for indiscriminate dissemination of such information.10<i class="footnote">See <i>Ḥafeẓ Ḥayyim, Be’er Mayim Ḥayyim, Hilkhot Lashon ha-Ra</i> 2:3 and 2:28 as well as the commentary of R. Binyamin Cohen on <i>Ḥafeẓ Ḥayyim, Ḥelkat Binyamin</i> (Brooklyn, 5753), <i>Bi’urim, Hilkhot Lashon ha-Ra</i> 2:21 and 2:61. Of interest also is a brief note by R. Chaim Sha’ul Kaufman of Gateshead that appeared in a European Torah journal, <i>Kol ha-Torah</i>, no. 60 (Nisan 5756), p. 118. R. Kaufman expresses uncertainty with regard to whether <i>lashon ha-ra</i> is permitted with the express permission of the subject of the talebearing. R. Kaufman then refers to the above-cited remarks of <i>Ḥafeẓ Ḥayyim</i> with the comment that it may be inferred from <i>Ḥafeẓ Ḥayyim</i>’s remarks that communication of <i>lashon ha-ra</i> is prohibited even under such circumstances.Cf., however, R. Ya’ir Chaim Bacharach, <i>Teshuvot Ḥavvot Ya’ir</i>, no. 62, who appears to assert that it is permitted to make demeaning comments about a person with that person’s permission. See also <i>Ḥelkat Binyamin, loc. cit</i>., who makes much the same point on the basis of <i>Ḥafeẓ Ḥayyim</i>’s remarks in <i>Be’er Mayim Ḥayyim, Hilkhot Lashon ha-Ra</i> 2:28.A differing position is ascribed to <i>Ḥafeẓ Ḥayyim</i> by R. Issachar Tamar, in his commentary on the Palestinian Talmud, <i>Alei Tamar</i> (Alon Shevut, 5752), vol. II, <i>Ta‘anit</i> 3:4. Rabbi Tamar recounts a narrative concerning <i>Ḥafeẓ Ḥayyim. Ḥafeẓ Ḥayyim</i>, in an expression of modesty, is reported to have made a self-deprecatory comment but later to have had reason to regret his words. <i>Ḥafeẓ Ḥayyim</i> is reported to have remarked that the incident, which occurred after publication of his classic work on <i>lashon ha-ra</i>, taught him that it is forbidden to speak <i>lashon ha-ra</i> even with regard to oneself. Rabbi Tamar finds support for that position in a comment of the Palestinian Talmud, <i>ad locum</i>. Cf., however, R. Yehudah Herzl Henkin, <i>Teshuvot Bnei Banim</i> (Jerusalem, 1998), III, no. 18, who rejects the validity of the inference drawn from the anecdote concerning <i>Ḥafeẓ Ḥayyim</i> and rebuts the argument made on the basis of the comment of the Palestinian Talmud. R. Herschel Schechter, <i>Nefesh ha-Rav</i> (Jerusalem, 1994), p. 150, cites a cryptic comment of R. Joseph B. Soloveitchik declaring that a person is forbidden to utter a statement that would impugn his own reputation. The position that a person may not make derogatory statements regarding himself seems to be contradicted by the previously cited comments of <i>Teshuvot Ḥavvot Ya’ir</i>, no. 62.</i> The privilege, it should be noted, even if not subject to waiver, is in the nature of a general right of privacy rather than an exclusion from admissible evidence in legal proceedings. Privacy does not serve as a barrier to judicial inquiry. Nevertheless, in most circumstances, such communications would not be admissible as evidence on the basis of the hearsay rule, which in Jewish law is far broader in its exclusions than is the case in other legal systems.
  b) Leviticus 1:1
  The prohibition against divulging a non-personal confidential communication is formulated by the Gemara, <i>Yoma</i> 4b: "Whence is it derived that [if] one relates something to one's fellow [the latter is commanded], 'Thou shalt not tell' until [the former] tells him 'Go tell'? For it is said, 'And the Lord spoke to him from the tent of meeting <i>l'emor'</i> " (Leviticus 1:1). Rashi understands the prohibition to be based upon talmudic exegesis interpreting the word "<i>l'emor,"</i> which is spelled <i>lamed, alef, mem, resh</i>, as a contraction of two words "<i>lo emor</i>—do not say."11<i class="footnote">See Maharsha, <i>ad locum</i>.</i> Thus, the written word vocalized in two alternative ways literally constitutes a double entendre: "to say" and "do not say." As explained by <i>Or ha-Hayyim</i>, Exodus 25:2, the initial phrase of the immediately following sentence beginning "Speak to the children of Israel" clearly places upon Moses an affirmative obligation to repeat what he has been told. Taken together, the two sentences declare, in effect, that Moses may not speak other than when expressly directed or granted permission to speak. As formulated by the Gemara, Moses is admonished "Do not tell!" unless and until he is told "Go tell!" Prior to their communication to Moses, the contents of revelation were reserved to the Deity and, accordingly, the contents of revelation would have been held inviolate by Moses on the basis of the injunction "Do not say" had he not been commanded explicitly <i>"l'emor,"</i> to speak and disclose that information to Israel. Interpreting the statement of the Gemara in a manner consistent with that of Rashi, <i>Sefer Mizvot Gadol, lo ta'aseh</i>, no. 9, regards violation of this injunction as transgression of a biblical commandment.12<i class="footnote">However, <i>Sefer Miẓvot Gadol</i>’s interpretations of the word “<i>l’emor</i>” is somewhat different from that of Rashi. <i>Sefer Miẓvot Gadol</i> also interprets that word as a contraction, but as the assimilated contraction of the words “<i>lav amur</i>,” i.e., “a negative commandment has been stated [with regard to this matter].”R. Baruch ha-Levi Epstein, <i>Torah Temimmah</i>, Leviticus 1:1, regards the statement of the Gemara, <i>Yoma</i> 4b, as establishing a rabbinic prohibition. Cf., however, <i>Bet ha-Beḥirah, Yoma</i> 4b, who describes the stricture against disclosure of a non-personal communication, imparted in a confidential manner, as merely a matter of <i>derekh ereẓ</i> or unseemly behavior.</i> This talmudic statement is cited as normative by <i>Magen Avraham, Oraḥ Hayyim</i> 156:2, and serves to establish a formal obligation to regard the communication of any personal or proprietary information as confidential unless permission for disclosure is explicitly granted.
  Both Maharsha, <i>ad locum</i>, and R. Baruch ha-Levi Epstein, <i>Torah Temimmah</i>, Leviticus 1:1, offer an interpretation of the derivation that is less elegant but far simpler than that advanced by Rashi.13<i class="footnote">This interpretation of <i>Yoma</i> 4b is inherent in the comments of <i>Or ha-Ḥayyim</i>, Exodus 25:2. See <i>infra</i>, note 15.</i> According to those scholars the prohibition is predicated upon the plain meaning of the word <i>"l'emor."</i> The term "<i>l'emor</i>" is rendered in English translations as "saying." That translation portrays the entire sentence, "And God spoke to Moses saying," as a preferatory comment conveying the notion that the ensuing passages constitute the content of what was "said" to Moses. In effect, the sentence is rendered as a declaration indicating that what follows constitutes the content of God's communication to Moses. The translation of <i>"l'emor"</i> as "saying," although it serves to make the sentence read smoothly in the vernacular, is contrary to the plain meaning of the text and is probably incorrect. The initial letter <i>lamed</i> is a prefix meaning "to" and hence the word <i>"l'emor"</i> should properly be understood as a contraction of <i>"le-emor"</i> and translated as "to say," i.e., God commanded Moses "to say" the words of the verses that follow. Accordingly, the import of the sentence is not a declaration to the effect that the subsequently recorded verses were communicated to Moses, but that Moses was commanded to declare those verses to the children of Israel. The appropriate, albeit infelicitous, translation would be: "And God spoke to Moses to say."14<i class="footnote">This nuance of meaning is accurately captured in the standard Yiddish translation published in the <i>Bet Yehudah</i> edition of the Pentateuch which renders the “<i>l’emor</i>” as “<i>zu zogen</i>” rather than as “<i>zogendig</i>.”</i> However, although linguistically accurate, this rendition of the passage seems to render the entire verse redundant. The very next verse begins with the phrase "Speak to the children of Israel and say to them." That phrase is synonymous in meaning with <i>"l'emor"</i> and renders <i>"l'emor"</i> superfluous. The plain inference, comments Maharsha, is that Moses would not have had the right to transmit the divine communication unless given express permission by God to do so.15<i class="footnote"><i>Torah Temimmah</i> differs from Maharsha only in understanding that the principle is derived from the plain meaning of “<i>l’emor</i>” and is not based upon its redundancy in light of the immediately following “Speak to the children of Israel.” <i>Or ha-Ḥayyim</i>, Exodus 25:2, understands the Gemara’s comment much in the same manner as <i>Torah Temimmah</i> but comments that “<i>l’emor</i>” alone would have served only to give Moses discretionary license to divulge the prophetic message he received; the phrase “speak to the children of Israel” is in the imperative voice and serves to make it incumbent upon Moses to do so.</i> Hence that directive is recorded in order to teach that, absent such a waiver, all communications are to be regarded as confidential.
  Other early-day scholars find the obligation to regard all personal or proprietary communications as privileged to be reflected in yet another verse. R. Menahem ha-Me'iri, in his commentary on <i>Yoma</i> 4b, and R. Levi ben Gershon (Ralbag), in his commentary on the scriptural passage, understand Proverbs 11:13 as reflecting the principle enunciated by the Gemara, <i>Yoma</i> 4b. Proverbs 11:13 is usually translated as "He that goes about as a talebearer reveals secrets, but he who is of faithful spirit conceals a matter." Me'iri, however, renders the first half of the verse as "He who reveals a secret is a talebearer" while both Me'iri and Ralbag understand the second part of the verse as referring to a person who "conceals a matter" even though it has not been divulged to him as a secret.
  2. Limitations upon the Obligation
  It should be noted that there is no "statute of limitations" or time period subsequent to which the obligation of confidentiality expires. The Gemara, <i>Sanhedrin</i> 31a, reports an incident involving a student who revealed a matter he had heard in the House of Study twenty-two years after receiving the information. R. Ammi expelled the student from the Academy declaring, "This student reveals secrets!"16<i class="footnote"><i>Sefer Miẓvot Gadol</i>’s citation of this narrative seems to indicate that he regarded the matter divulged to have been subject to the privilege established by <i>Yoma</i> 4b. Rashi, <i>Sanhedrin</i> 31a, describes the incident as involving <i>lashon ha-ra</i>. If that comment is understood literally the infraction was far more severe than revealing a secret. It seems to this writer that Rashi did not employ the phrase literally but intended only to dispel the notion that the matter revealed was a scholarly insight heard in the course of discussion in the House of Study. If so, Rashi’s comments serve to establish that such information is not privileged although, to be sure, there is an obligation to attribute any novel insight to its proper source. See <i>Avot</i> 6:6.<i>Yoma</i> 4b should be understood as establishing that the contents of the Torah are within the proprietary domain of the Deity and could not legitimately have been disclosed by Moses other than upon explicit dispensation. The same principle is applicable to mortals. However, once God, as the proprietor of that information, has made it available to mankind through Moses it is within the public domain. Since, as stated by the Palestinian Talmud, <i>Pe’ah</i> 2:4, the subsequent Torah insights of all scholars were revealed to Moses at Mt. Sinai, no person may assert a privilege of confidentiality. Cf., however, R. Saul Israeli, <i>Teḥumin</i>, IV (5743), 354-360.</i>
  However, the privileged nature of a private communication is by no means absolute. Respect for privacy and the inviolability of a confidential communication certainly do not take precedence over preservation and protection of the lives and safety of others. The overriding obligation to protect the lives of others is of sufficient weight to oblige the confidant to take whatever measures may be necessary to eliminate the danger. An oath not to divulge such information when required by Halakhah to do so is regarded as an oath to transgress a commandment and is invalid.17<i class="footnote">See Rema, <i>Shulḥan Arukh, Yoreh De‘ah</i> 239:7 and R. Eliezer Waldenberg, <i>Ẓiẓ Eli‘ezer</i>, XIII. no. 81, sec. 2.</i> Thus, for example, a physician must inform the motor vehicle bureau that his patient is an epileptic and should be denied a driver's license. The obligation to violate the confidential nature of information entrusted to the physician in such situations is included within the "law of the pursuer." A person engaged in an act that will lead to the death of another must be prevented from causing such death even if the consequences of the act are entirely unintended. R. Elijah of Vilna, <i>Bi'ur ha-Gra, Hoshen Mishpat</i> 425:10, states explicitly that the "law of the pursuer" applies even in the absence of intention to do harm.
  The obligation to divulge information that may preserve a life is not limited to situations involving a "pursuer" but extends to all situations in which lack of such information would lead to possible loss of life. Apart from the general principle that preservation of life takes precedence over other religious and personal obligations, failure to disclose such information would constitute a violation of "You shall not stand idly by the blood of your fellow" (Leviticus 19:16).
  Concern for preservation of life is by no means the sole legitimate motive for violation of confidentiality. Even information that is derogatory and personal, and hence subsumed within the prohibition against gossip mongering, must be disclosed if it is necessary to do so in order to prevent serious harm. Rambam, <i>Mishneh Torah, Hilkhot Rozeaḥ</i> 1:14, followed by Shulḥan Arukh, Hoshen Mishpat 426:1, rules that if an individual "hears that gentiles or apostates are plotting misfortune" for another person, he must bring the matter to that person's attention. Failure to do so, declares Rambam, constitutes a violation of the commandment "You shall not stand idly by the blood of your fellow." The "misfortune" of which Rambam speaks includes financial loss as well as bodily harm. This is evident from Rambam's comments in his <i>Sefer ha-Mizvot, lo ta'aseh</i>, no. 297, in which he indicates that the commandment applies in all situations in which an individual is "in danger of death or loss." The "loss" to which Rambam refers is loss of money or profit as reflected in the ensuing discussion in which Rambam cites a statement of the <i>Sifra</i>, Leviticus 19:16, declaring that withholding of testimony in a financial dispute constitutes a violation of the commandment "You shall not stand idly by the blood of your fellow."
  It is instructive to note that the prohibition against talemongering and the obligation to rescue one's fellow from physical or financial harm are joined in a single biblical verse: "You shall not go as a talebearer among your people; nor shall you stand idly by the blood of your fellow." The verse should be understood as prohibiting dissemination of derogatory information but not at the cost of standing idly by while one's fellow suffers harm.
  <i>Hafez Hayyim, Be'er Mayim Hayyim, Hilkhot Rekhilut</i> 9:1, cites additional sources that reflect the same principle. Jewish law provides that adverse possession of land for a period of three years is <i>prima facia</i> evidence substantiating a claim of purchase. A person who has been in open and notorious occupancy of a field for that period of time need no longer preserve a deed of purchase in order to validate a claim of title. However, protest by the person previously in possession of the property that such occupancy constitutes an unlawful trespass is sufficient to negate the claim of the occupant with the result that, unless the occupant can produce a deed, title is awarded to the prior owner. Such protest must be registered in the presence of witnesses but need not necessarily be expressed in the presence of the occupant. Rashbam and <i>Tosafot, Bava Batra</i> 39b, indicate that individuals hearing such a protest are duty bound to inform the occupant of what they have heard. They are clearly "talebearing" in reporting to the person in possession that he has been branded a trespasser and a thief by the person lodging the protest. The witnesses, as well as others to whom they reveal the incident, are nevertheless required to convey that information so that the person in possession, if he is indeed the rightful owner, will exercise vigilance in preserving his deed. It is the concern for averting financial loss that serves as sanction for an otherwise impermissible disclosure of information. <i>Sefer ha-Hinnukh</i>, no. 247, makes a more general statement in declaring that when the intent is to "remove harm and to still the quarrel" the prohibition against gossip mongering does not pertain.
  The classic work dealing with Jewish law as it applies to slander, defamation of character and talebearing is <i>Hafez Hayyim</i>, authored by R. Israel Meir Kagan. In <i>Hilkhot Rekhilut, klal</i> 9, <i>Hafez Hayyim</i> emphasizes that disclosure of derogatory information, even when the information is not received in a confidential manner, dare not be lightly undertaken. <i>Hafez Hayyim</i> rules that, even when designed to prevent harm or loss, disclosure is justified only when a series of conditions are met: 1) Disclosure may be made only pursuant to careful deliberation in establishing that potential for harm really exists. 2) The information disclosed should be presented accurately without embellishment or exaggeration. 3) The sole motivation prompting disclosure must be the desire to prevent harm. No disclosure may be made when prompted, even in part, by personal animosity.18<i class="footnote">When these conditions are fulfilled disclosure is warranted not as an exception to the prohibition against talebearing, but because the act does hot fall within the definition of “talebearing.” Animosity is sufficient to bring the disclosure within the ambit of the prohibition. Accordingly, in <i>Be’er Mayim Ḥayyim, Hilkhot Rekhilut</i> 9:3, <i>Ḥafeẓ Ḥayyim</i> recognizes that a person who does experience such animus is caught on the horns of a dilemma: He is forbidden to disclose because of the prohibition against talebearing. But in withholding the information he transgresses the command “You shall not stand idly by the blood of your fellow.” Accordingly, <i>Ḥafeẓ Ḥayyim</i> declares, “It is my intention [to say] that at the time of disclosure he [must] force himself to intend benefit and not [disclose] because of animosity.” See also R. Moshe Bleich, “Appointing Students as Monitors,” <i>Ten Da‘at</i>, vol. XII (Summer, 1999), pp. 76-77.</i> 4) The benefit of the disclosure cannot be achieved in any other way. 5) The disclosure will not lead to any harm or loss to the person who is the subject of the information disclosed other than the liability that would be imposed upon that person by a <i>Bet Din</i> on the basis of the facts and the available evidence.
  R. Ya'akov Breisch, <i>Teshuvot Helkat Ya'akov</i>, III, no. 136, argues that, under such circumstances, disclosure is mandated, at least according to some authorities, by virtue of another commandment as well. "Thou shalt not place a stumbling block before the blind" (Leviticus 19:14) is understood in rabbinic sources as prohibiting an individual from causing another person to "stumble" by committing a transgression and also as an admonition against giving detrimental advice in mundane matters. Rambam, <i>Mishneh Torah, Hilkhot Rozeaḥ</i> 12:4, extends the concept not only to providing direct aid in committing a sin but also to "strengthening the hands of transgressors." R. Judah Rozanes, <i>Mishneh le-Melekh, Hilkhot Kelayim</i> 1:6, maintains that even a passive stance may constitute "strengthening the hands of transgressors" and hence is forbidden by Rambam as placing a "stumbling block before the blind." <i>Mishneh le-Melekh</i> employs this thesis in explaining an otherwise difficult ruling of Rambam. Rambam rules that a Jew may not permit a gentile to make use of a tree belonging to a Jew for purposes of grafting a branch of one species upon a tree of another species. Even passive acquiescence constitutes a violation of the prohibition against "placing a stumbling block." <i>Helkat Ya'akov</i> argues that since not only assistance in transgression but also offering poor counsel is prohibited by this commandment, "passive" counsel that is deleterious in nature is also forbidden. Advice designed to cause unhappiness or financial loss is clearly forbidden. Hence, according to <i>Mishneh le-Melekh</i>, failure to provide information and advice for the purpose of averting such unfortunate results is also a form of "placing a stumbling block before the blind." Accordingly, concludes <i>Helkat Ya'akov</i>, a person is not at all justified in maintaining his own counsel in circumstances in which circumspection would result in grief or financial loss to others.
  Obligations arising from the commandment not to stand idly by the blood of one's fellow and the prohibition against placing a stumbling block before the blind obligate a person to prevent harm or loss; they do not give rise to an affirmative obligation to maximize the profit or enhance the material well-being of one's fellow. Accordingly, <i>Hafez Hayyim</i> rules that disclosure of derogatory personal information is mandatory if necessary to prevent loss but makes no such statement with regard to disclosure for the purpose of financial advantage.
  Violation of a confidence that does not involve talebearing but is protected by the prohibition of <i>bal tomar</i> [i.e., <i>lo emor</i>— do not say] may well be a different matter. In an article published in <i>Teḥumin</i>, vol. IV (5743), the late R. Saul Israeli declares that such a confidence may be breached even in order to achieve a financial benefit provided, however, that there will be no resultant harm to the person who has imparted that information. Rabbi Israeli observes that refusing to allow another person to derive benefit from one's property when there is no harm or loss to oneself is decried by the Sages as the "trait of Sodom." Accordingly, in the absence of evidence to the contrary, there is no reason to assume that the party whose confidence is violated would act wickedly in withholding such information. On the contrary, argues Rabbi Israeli, the halakhic principle "A person is pleased that a <i>mizvah</i> be performed with his property" serves to establish a constructive waiver of confidentiality.
  It seems to this writer that Rabbi Israeli is correct is stating that non-personal communications may be divulged in such circumstances without prior permission. Moreover, in this writer's opinion, there is talmudic evidence that serves to establish that such information may be divulged for the benefit of another party even over the express objection of the person from whom the information was obtained.
  The Gemara, <i>Avodah Zarah</i> 28a, in recounting a problematic anecdote, reports that R. Yoḥanan once suffered a severe toothache. He received treatment at the hands of a prominent gentile woman on a Thursday and a Friday. R. Yoḥanan declined to visit her on <i>Shabbat</i> because he was occupied with his students and therefore requested instructions so that he might administer the therapy to himself. The woman was reluctant to divulge that information lest it became available to others as well. Accordingly, she demanded that R. Yoḥanan swear an oath not to reveal the information. R. Yoḥanan swore that "to the God of Israel he would not reveal" the information and then promptly imparted the information in his Sabbath lecture on the excuse that he did indeed swear not to reveal the information "to the God of Israel" but that he reserved the prerogative of revealing the information "to the people of Israel." Addressing the concern raised on account of profanation of the Divine Name involved in this subterfuge, the Gemara responds that immediately upon receiving the information R. Yoḥanan revealed his intention to discuss the matter publicly.19<i class="footnote">See <i>Teshuvot Ḥavvot Ya’ir</i>, no. 69, who comments that R. Yoḥanan’s conduct in this matter was appropriate only because the health issue involved was a matter of public need.</i> Presumably, R. Yoḥanan did so in the context of reproving the woman for attempting to reserve such beneficial therapeutic information for her own exclusive use.
  The Gemara limits its discussion to the problems posed by the oath sworn by R. Yoḥanan not to reveal the information. But, putting aside the strictures imposed by the oath, it is manifestly clear that the woman in question imparted the requisite pharmacological information to R. Yoḥanan in confidence and that she expressly informed him of her desire that this esoteric information remain her secret. The information, to be sure, was not personal and certainly was not pejorative. It was, however, information within the exclusive possession of the woman—not unlike the information conveyed to Moses by God that would perforce have remained a divine secret if not for God's express permission to transmit the information to the people of Israel. The sole but crucial distinction is that the medical information in question was of direct and tangible benefit to R. Yoḥanan's audience and its divulgence did no harm to the woman who entrusted the information to R. Yoḥanan. On the basis of the narrative as it is reported there is every reason to assume that the woman in question did not charge a fee for her medical ministrations and hence suffered no adverse financial effect.20<i class="footnote">See, R. Yitzchak Glick, <i>Ḥinnukh Bet Yiẓḥak</i> (Brooklyn, 5759), no. 34, who cites a narrative recorded in the Gemara, <i>Shabbat</i> 133b, in declaring that a professional secret may not be divulged even if failure to do so will cause a loss of income to the physician.</i> Indeed, <i>Leḥem Setarim</i>, one of the classic commentaries on <i>Avodah Zarah</i>, resolves another difficulty unrelated to this discussion with the observation that no compensation was involved because "since [the woman] was a courtesan she had no need to accept a fee and moreover if [her services were rendered in return] for a fee how is it that she did not wish to disclose what [R. Yoḥanan] must do on <i>Shabbat</i> until he swore?"21<i class="footnote">Cf. R. Yitzchak Zilberstein, <i>Ẓohar</i>, vol. IV (Jerusalem, 5759), ed. R. Eliyakim Dworkes, pp. 190-92, who discusses only the issue of interference with earning a livelihood and, in distinguishing between competition with a gentile and competition with a fellow Jew, notes that the courtesan was a non-Jewess.</i> Presumably, her motive in refusing to share the information with toothache sufferers was a desire for power or self-aggrandizement, or sheer pettiness. It would seem that this talmudic narrative serves to establish that the proprietary interest with regard to non-personal confidences established by the prohibition of <i>bal tomar</i> need not be respected by a confidant when it is exercised as a "trait of Sodom."22<i class="footnote">This thesis also serves to resolve a puzzling aspect of the midrashic explanation of Jacob’s statement recorded in Genesis 49:1. On his deathbed, Jacob addresses his sons saying: “Gather yourselves together that I may tell you that which should befall you in the end of days.” Jacob then proceeds to tell them nothing of the sort; he criticizes some and blesses others but does not at all engage in prognostication. Rashi, basing himself on a midrashic comment, explains that Jacob did indeed intended to reveal when the redemption would occur but God, not wishing that information to be revealed prematurely, caused the <i>Shekhinah</i> to depart from Jacob with the result that he was no longer in possession of that information.The Sages of the Midrash resolved the problem of textual interpretation but they have left us with an even graver problem. Whatever information Jacob possessed by virtue of the resting of the <i>Shekhinah</i> upon him was in the nature of a divine communication. If God desired His communication to Jacob of the date of the Redemption to be privileged, by what right did Jacob attempt to reveal it to his children? The prohibition of <i>bal tomar</i> should apply to the prophecy received by Jacob no less so than to the prophecy received by Moses. If, however, it is understood that there are no proprietary rights or rights of confidentiality that can be asserted when such information is of potential benefit to other parties and its disclosure entails no loss to the holder of the privilege, the problem is readily resolved. Jacob believed the information to be of significant psychological and emotional benefit to his progeny and since, virtually by definition, there could be no “harm” to God in its disclosure, he felt fully justified in imparting that information to his sons.</i>
  III. Rabbis and the Clergyman-Penitent Privilege
  The information governed by the prohibition of <i>bal tomar</i> as posited by the Gemara, <i>Yoma</i> 4b, is not at all encompassed within the clergyman-penitent privilege. Accordingly, disclosure of such information as required by Jewish law when necessary for the material benefit of a third party presents no conflict with the requirements of civil law. Communications for which a clergy-penitent privilege may be claimed are virtually always of a nature to which the much more stringent prohibition against talebearing applies. Circumstances in which Jewish law requires a breach of confidence involving such information are quite rare. In general, Jewish law mandates disclosure of confidential information only when necessary to avert significant harm. Even secular law recognizes an exception to the rule of confidentiality when a threat to life or serious physical harm exists.23<i class="footnote">Although there is no case law with regard to the clergyman-penitent privilege (cf., however, <i>infra</i>, note 60, regarding the New Jersey statute), many courts have held not only that the physician-patient privilege is suspended in face of danger to another person but that, at least in some circumstances, the physician has an affirmative duty to disclose a foreseeable harm to an identifiable third party who is at risk. Probably the most widely cited case applying that principle is <i>Tarasoff</i> v. <i>Regents of University of California</i>, 17 Cal.3d 425 (1976). In <i>Tarasoff</i> the California Supreme Court held that when a psychotherapist determines or, pursuant to the standards of his profession, should determine that his patient presents a serious danger of violence to another, the therapist has an affirmative duty to use reasonable care to protect the intended victim against such danger and that the duty may require the physician to warn the intended victim of the danger. See generally Williams, Annotation, “Liability of One Treating Mentally Afflicted Patient for Failure to Warn or Protect Third Persons Threatened by Patient,” 83 A.L.R.3d 1201 (1978 &amp; Supp. 1992). For a discussion of <i>Tarasoff</i> and its progeny, see Timothy E. Gammon and John K. Hulston, “The Duty of Mental Health Care Providers to Restrain Their Patients or Warn Third Parties,” <i>Missouri Law Review</i>, vol. 60, no. 4 (Fall, 1995), pp. 749-797; Peter Lake, “Revisiting <i>Tarasoff</i>,” <i>Albany Law Review</i>, vol. 58, no. 1 (1994), pp. 97-173; Michael L. Perlin, “<i>Tarasoff</i> and the Dilemma of the Dangerous Patient: New Directions for the 1990s,” <i>Law &amp; Psychology Review</i>, vol. 16 (Spring, 1992), pp. 29-63. See also John C. Williams, Annotation, “Liability of One Treating Mentally Afflicted Patient for Failure to Warn or Protect Third Persons Threatened by Patient,” 83 A.L.R.3d 1201 (1978).Physicians have also been held liable for failing to warn others about the risk of transmission of communicable disease. See, for example, <i>Skillings</i> v. <i>Allen</i>, 173 N.W. 663 (Minn. 1919) (negligent failure to disclose risk of transmission of scarlet fever). See also <i>Gammill</i> v. <i>United States</i>, 727 F.2d 950, 954 (10th Cir. 1984) (physician may be found liable for failing to warn person at risk for exposure of the danger) and <i>Bradshaw</i> v. <i>Daniel</i>, 854 S.W.2d 865 (Tenn., 1993) (extending liability to include failure to disclose to patient’s wife that she was at risk for contracting Rocky Mountain Spotted Fever, a non-contagious disease but which appears in clusters). See generally Tracy A. Bateman, Annotation, “Liability of Doctor or Other Health Practitioner to Third Party Contracting Contagious Disease from Doctor’s Patient,” 3 A.L.R. 5th 370 (1992).</i> It is little wonder that Jewish law recognizes the selfsame exception when a threat to spiritual welfare exists, as was the case in the matter before the New York court.
  The very fact that the plaintiff has instituted proceedings in a civil court for recovery of damages is itself vindication of the rabbis' judgment. Seeking redress against a fellow Jew in a civil court rather than in a <i>Bet Din</i> is itself a serious breach of Halakhah and departure from the life-style of an observant Jew. As such, the plaintiff's motion betrays a fundamental lack of religious probity.
  The applicable New York statute and the laws of other jurisdictions may well exclude from evidence the testimony of a clergyman even in situations in which Jewish law permits breach of confidentiality. But, even assuming that Justice Goldstein is correct in his view that the statute also creates a fiduciary relationship, the fiduciary relationship of a rabbi to his congregant must, by its very nature, be circumscribed by the provisions of Jewish law. A member of the Jewish faith who seeks the counsel of a rabbi rather than that of a psychologist, social worker or marriage counselor understands quite well that the rabbi's actions will be governed by Jewish law and tradition. The congregant places his faith and trust in the rabbi in anticipation that the rabbi will act in precisely that manner. The uniqueness of a fiduciary relationship under the secular legal system is based upon the concept that it is a relationship predicated upon trust and hence violation of that trust is actionable. If a rabbi is trusted to relate to his congregant on the basis of Jewish law, the rabbi's recognition of the limits that Jewish law places upon confidentiality can hardly be deemed a violation of the fiduciary relationship arising from that confidence. To put the matter quite simply, in situations in which Jewish law requires the rabbi to divulge information, the congregant does not, and should not, have a "reasonable" expectation of confidentiality. Accordingly, the courts should recognize an implied waiver of statutory confidentiality in those cases in which disclosure is required by the faith of the confidant.
  Moreover, if a rabbi is bound by a fiduciary duty, his duty is not to his congregant but to a higher authority. The Internal Revenue Service and the Social Security Administration seem to have an intuitive understanding of this point. Although, typically, rabbis are hired by congregations and compensated in the form of a salary, the I.R.S. does not demand that congregations withhold income tax from the salaries of their clergy or file W2 forms on their behalf. Clergymen serving congregations make contributions to the Social Security system as self-employed individuals. In a very real sense, the members of a synagogue may pay the rabbi's salary but he is not their employee; the rabbi is the employee of the Almighty. Certainly, the rabbi's fiduciary obligation is to God, and only through God to the congregant.
  Let it be noted that, as will be discussed later in greater detail, clergy-man-penitent statutes are directly attributable to the burden placed upon a priest by canon law. The Church requires its priests to hold the sanctity of a confession inviolate even upon pain of incarceration or death. In states in which the priest-penitent privilege is not recognized, were a judge to threaten a priest with citation for contempt for refusing to divulge information revealed to him in the confessional, the priest would feel bound to accept imprisonment despite the requirements of a secular legal system. A rabbi, in some limited circumstances, may be equally obligated by his religious convictions to violate a confidence. His recognition of a religious obligation to do so should not give rise to puzzlement any more so than does the priest's refusal to violate the same confidence.
  At the same time a rabbi is under no automatic obligation to reveal that a crime has been committed even if the crime was revealed to him in a context not encompassed within the clergyman-penitent privilege. The obligation to disclose, on the infrequent occasions in which it may exist, is based entirely upon the need to prevent harm and is totally unrelated to society's desire to punish crime. Accordingly, only a well-founded fear of repetition of the criminal act that might be prevented by disclosure of past misdeeds would make such disclosure mandatory.
  An absolute clergyman-penitent privilege, if applied to rabbis, would yield results that no Jew could accept in good conscience. Assume, for example, that a butcher afflicted by pangs of conscience, but not yet willing to mend his ways, confesses to a rabbi that the meat he offers for sale is not kosher. For the rabbi to act as if he has no such knowledge is to make a mockery of his fiduciary responsibilities to his other congregants, not to speak of his own religious duties. The rabbi's position—and responsibilities—are analogous to those of a psychiatrist who discovers that a patient is planning to commit mayhem. The rabbi's obligation to prevent sin is no different from the physician's responsibility to prevent bodily harm.
  In this regard the obligations of a rabbi and a physician are, from a Jewish law perspective, quite similar and, with regard to the obligations of both, the perspective of Judaism is at variance with that of the American legal system. For Judaism, a physician's obligation does not flow from a contractual or fiduciary obligation <i>vis-à-vis</i> his patient; the physician's duty flows from an obligation to heal imposed upon him by the Deity. The selfsame obligation to seek healing and to prolong life are imposed upon the patient as well. The patient in seeking medical care and the physician in providing such ministration are together fulfilling an obligation imposed upon them jointly by the Creator of all life. Accordingly, the physician dare not accede to the wishes, or even to the directives of a patient, when they conflict with his duty to God, for it is to the Deity that he owes an overriding fiduciary duty. A person seeking the services of a religiously observant physician, psychologist, attorney or rabbi should know and respect the moral and professional values of his confidant. Which thief would entrust a policeman with details of a contemplated bank robbery? If a person is so foolhardy as to plan harm to another individual he only compounds such foolhardiness in divulging his intention to any other human being, all the more so to one whose own moral and professional values require disclosure of the confidence. The congregant in seeking counsel and the rabbi in providing guidance are both engaged in the sacred task of discovering and carrying out the will of God. Each owes a duty to God rather than to the other; to the extent that one owes a duty to the other it is because that duty flows from a duty to God.
  It is not at all correct to conclude that rabbis are bound by the decision in <i>C. L.</i> v. <i>Flaum</i>24<i class="footnote">More generally, there is strong support for the thesis that the principle <i>dina de-malkhuta</i> is limited to laws promulgated by a sovereign or by a legislature. According to some authorities, common law, “judge-made law” or even judicial interpretation of an ambiguous statute is not endowed with the authority of <i>dina demalkhuta</i>. Thus <i>Teshuvot ha-Rashba</i>, III, no. 109, writes, “But the judgments issued by courts are not the law of the realm; rather, courts judge independently in accordance with what they find in judicial works.” See also <i>Teshuvot ha-Rashba</i>, VI, nos. 149 and 154, as well as Me’iri, <i>Bava Kamma</i> 113b, s.v. <i>kol mah she-amarnu</i>.</i> or by §4505 of the CPLR on the grounds of <i>dina de-malkhuta dina</i> (the law of the land is the law). The finding of the Court in <i>C. L.</i> v. <i>Flaum</i> that the rabbis were in breach of a fiduciary obligation does not mean they are in violation of either a criminal or civil statute; it means only that the aggrieved party can sue for damages in a civil court.
  Moreover, not every civil law is binding in religious law as <i>dina de-malkhuta dina</i>. Assuredly, a law requiring violation of a religious precept, even if its purpose is not anti-religious and it is non-discriminatory in nature, e.g., a law requiring all citizens to cast ballots in an election held on <i>Shabbat</i>, is not binding in Halakhah and would require an act of civil disobedience on the part of citizens of the Jewish faith.25<i class="footnote">Delineation of the parameters of <i>dina de-malkhuta dina</i> is far beyond the scope of this undertaking. Suffice it to say that among early-day authorities there are over half a dozen conflicting theories designed to explain why <i>dina de-malkhuta</i> is binding in Jewish law. The ramifications and application of <i>dina de-malkhuta</i> vary directly with those theories. According to all authorities, there are areas of <i>dina de-malkuta</i> with regard to which Jewish law is entirely neutral, i.e., it neither requires disobedience nor reinforces the binding nature of that law by elevating it to a religious duty. With regard to such laws the Jewish national is no different from his non-Jewish fellow countryman who accepts and obeys the law for reasons entirely divorced from religious duty.</i> Similarly, a law requiring a Jew to stand idly by while his fellow goes to his death is, from a religious perspective, null and void. A law that requires a person to remain silent in face of spiritual danger to an innocent victim is entirely unworthy of religious respect, much less of enforcement under pain of religious sanction. The only issue that is germane is the severity of the burden that a Jew is obligated to accept in fulfilling a particular religious obligation. Discussion of the threshold level of civil or criminal sanctions that would excuse a Jew from fulfilment of such an obligation is beyond the scope of this endeavor.
  In this writer's opinion, it is more than likely that the decision in <i>C. L.</i> v. <i>Flaum</i> will be overturned on appeal.25a<i class="footnote">The lower court’s decision in this case was indeed reversed on appeal. See <i>C. L.</i> v. <i>Tzvi Flaum</i>, 278 A.D.2d 373; 717 N.Y.S.2d 617 (2000). In a brief decision the appellate court ordered summary judgment for the defendants on the narrow grounds that the plaintiffs privilege had been waived by the presence of a third person during conversations with the clergymen. By reversing on grounds of waiver of the privilege the appellate court avoided, and hence left unresolved, the serious substantive issues raised in this case.</i> However, it is also likely that the issue will become moot before an appeals court rules on the matter. Many, and probably most, matrimonial cases, even when they have become the subject of judicial proceedings, are settled out of court. If that should prove to be the case with regard to the dispute between Dr. and Mrs. L., it may be anticipated that, as part of an eventual settlement, claims against the rabbis will be withdrawn. Although such an outcome would be salutary, it would have the unfortunate concomitant result of allowing Justice Goldstein's decision to stand and to influence the outcome of future cases. The potential for litigation is itself likely to have an unsettling effect upon rabbis.
  IV. Legal Accommodation of Rabbinic Duty
  It is abundantly clear that situations will arise in which, for reasons of conscience, a rabbi will find it impossible to obey the law as announced by the Court in <i>C. L.</i> v. <i>Flaum</i>. If that interpretation of the clergyman-penitent privilege prevails, a solution must be found that will render the statute inapplicable in situations in which it creates a conflict between the law and religious conscience. In assessing the policy considerations auguring for or against a "religious exemption" from the clergyman-penitent privilege it is necessary to identify the rationale underlying the privilege and the purpose it is designed to serve.
  The most commonly offered rationale is that the privilege is designed to foster the clergy-penitent relationship much in the same manner as the physician-patient, attorney-client and spousal privileges are designed to foster particular relationships by shielding communications within those relationships.26<i class="footnote">See Mary Harter Mitchell, “Must Clergy Tell? Child Abuse Reporting Requirements versus the Clergy Privilege and Free Exercise of Religion,” <i>Minnesota Law Review</i>, vol. 71, no. 3 (February, 1987), pp. 760-777 and J. Michael Kiel, “Law and Religion Collide Again: The Priest-Penitent Privilege in Child Abuse Reporting Cases,” <i>Cumberland Law Review</i>, vol. 28, no. 2 (1997-1998), pp. 682-683.</i> However, although society has a legitimate interest in fostering each of the latter relationships, societal actions designed to foster a clergy-penitent relationship may constitute a violation of the Establishment Clause of the First Amendment. Nevertheless, the underlying rationale can be reformulated in terms of religious accommodation, i.e., not that the privilege has been established to further a societal interest in fostering the clergy-penitent relationship, but that the privilege has been established as a permissible accommodation of the desire of religionists freely to enter into such relationships. As stated by the New York Court of Appeals:
  It is clear that the Legislature by enacting CPLR 4505 and its predecessors responded to the urgent need of people to confide in, without fear of reprisal, those entrusted with the pressing task of offering spiritual guidance so that harmony with one's self and others can be realized.27<i class="footnote">47 N.Y.2d 160, 166, 390 N.E.2d 1151, 1154, 417 N.Y.S.2d 226, 229 (1979).</i>
  Similarly, the U.S. Supreme Court has recognized that "the priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return."28<i class="footnote"><i>Trammel</i> v. <i>United States</i>, 445 U.S. 40, 51 (1980).</i>
  Some commentators have sought to justify evidentiary privileges, including the clergy-penitent privilege, in terms of privacy interest.29<i class="footnote">See, for example, Richard O. Lempert and Stephen A. Saltzburg, <i>A Modern Approach to Evidence</i> (St. Paul, 1977), pp. 614-15; McCormick, §72; Charles L. Black, Jr., The Marital and Physician Privileges–A Reprint of a Letter to a Congressman,” <i>Duke Law Journal</i>, vol. 1975, no. 1 (March, 1975), 48-49; Thomas A. Krattenmaker, “Testimonial Privileges in Federal Courts: An Alternative to the Proposed Federal Rules of Evidence,” <i>Georgetown Law Journal</i>, vol. 62, no. 1 (October, 1973), pp. 85-94; David W. Louisell, “Confidentiality, Conformity and Confusion: Privilege in Federal Court Today,” <i>Tulane Law Review</i>, vol. 31, no. 1 (December, 1956), pp. 110-11 (1956); Reese, p. 60; Stephen A. Saltzburg, “Privileges and Professionals: Lawyers and Psychiatrists,” <i>Virginia Law Review</i>, vol. 66, no. 3 (April, 1980), pp. 614-15 and 618-21; Robert Weisburg and Michael Wald, “Confidentiality Laws and State Efforts to Protect Abused or Neglected Children: The Need for Statutory Reform,” <i>Family Law Quarterly</i>, vol. 18, no. 2 (Summer, 1984), pp. 191-93.</i> Although, on the basis of existing case law, it is difficult to argue that the constitutionally protected right of privacy includes the right to confidentiality of private information,30<i class="footnote">See <i>Paul</i> v. <i>Davis</i>, 424 U.S. 693 (1976), in which the Supreme Court held that the right of privacy does not serve to protect the confidentiality of private information. Cf., however, <i>supra</i>, note 6.</i> the concern for privacy is certainly a legitimate rationale for statutory protection of communications for which secrecy is generally anticipated. The intimate nature of interaction between a clergyman and congregant gives rise to a highly personal and private relationship. If privacy is itself an end, rather than an instrumental means to certain goals, and is also worthy of protection as an end, the clergyman-penitent relationship certainly qualifies as a private relationship.
  A third rationale is accommodation of a need that is intrinsically human rather than religious. Human beings have a psychological need to unburden themselves of flaws and deficiencies of conduct. Reassurance that their behavior is not an aberrant deviation from the norm and/or advice designed to prevent future lapses serve to promote psychological well-being. Accordingly, the religious practice of confession, whether formal or informal, serves a positive cathartic function as part of the process of dealing with feelings of guilt. This rationale for the privilege is reflected in the words of the supreme court in <i>Trammel</i> v. <i>United States:</i> "The priest-penitent privilege recognizes the <i>human need</i> (emphasis added) to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return."31<i class="footnote"><i>Trammel</i> v. <i>United States</i>, 445 U.S. 40, 51 (1980).</i>
  There can, however, be little question that, historically, the privilege was originally designed, not as an accommodation of the religious practice of the confiders, but of the clergy's religious objection to disclosure.
  The legal basis of the priest-penitent privilege is rooted in the Code of Canon Law. Canon 1318 states: "A confessor who directly violates the Seal of Confession incurs an automatic (<i>latae sententiae</i>) excommunication…." There is strong evidence that English law recognized and respected the Seal of Confession from the time of the Norman Conquest in 1066 until the English Reformation in the sixteenth century.32<i class="footnote">See Scott N. Stone and Ronald S. Liebmann, <i>Testimonial Privileges</i> (Colorado Springs, 1983), §1.01; John C. Bush and William H. Tiemann, <i>The Right to Silence: Privileged Clergy Communication and the Law</i> (Nashville, 1983), pp. 39-41; and Jacob M. Yellin, “The History and Current Status of the Clergy-Penitent Privilege,” <i>Santa Clara Law Review</i>, vol. 23, no. 1 (Winter, 1983), pp. 96-101.It is likely that, even in that early period, English law recognized an exception to the privilege in cases of treason. See Bush and Tiemann, p. 47. <i>Garnet’s Case</i>, 2 Howell’s State Trials 218, 242 (1606), should probably be understood as an example of the exception. Father Garnet was found guilty, probably of misprision or treason, for refusing to reveal information concerning the Gunpowder Plot, a failed plot to assassinate King James I. Cf., Yellin, pp. 99-101.</i> In the sixteenth century, the Anglican church replaced the Roman Catholic church as the established Church of England. With the passage of time many changes in church practice were introduced, including a dwindling of emphasis upon, and ultimately elimination of, confession.33<i class="footnote">See Bush and Tiemann, pp. 49-53; and Yellin, p. 102.</i> Since confession was no longer necessary and since the Anglican church did not have a requirement of secrecy, clerics were no longer in need of protection of the law. Some contemporary historians are of the opinion that the privilege terminated at the time of the Reformation.34<i class="footnote">Bush and Tiemann, pp. 53-54; Stone and Liebmann, §6.01; and Yellin, p. 103.</i> However, Wigmore, in his classic treatise on evidence, asserts that the privilege survived until the Restoration.35<i class="footnote">James H. Chadbourn, <i>Wigmore on Evidence</i> (Boston, 1976), vol. VIII, §2394.</i> In either event it is abundantly clear that during the seventeenth century the privilege was no longer recognized.36<i class="footnote">Bush and Tiemann, pp. 120-122; and Yellin, p. 103.</i> Thus, the historical record lends support to the view that the privilege was designed as an accommodation of religious practice and was designed for the protection of the cleric.
  The history of the privilege in this country lends even more support to this understanding of the rationale underlying the privilege. Since the privilege was no longer recognized in England, it was not part of the common law imported to the New World. The first known case involving clergy privilege was <i>People</i> v. <i>Phillips</i> decided by the New York Court of General Sessions in 1813.37<i class="footnote">The case is abstracted in <i>Western Law Journal</i>, vol. 1, no. 3 (December, 1843), pp. 109-114. The records of an attorney who participated in the case are published in Note, “Privileged Communications to Clergymen,” <i>Catholic Lawyer</i>, vol. 1, no. 1 (January, 1955), pp. 199-209. That material originally appeared in William Sampson, <i>The Catholic Question in America</i> (New York, 1813; offset ed., New York, 1974), a work devoted entirely to the <i>Phillips</i> case. In addition to the decision of the court, the work includes the arguments presented by both sides as well as a lengthy appendix regarding the sanctity of the confessional.</i> The case involved Father Kohlmann, a Roman Catholic priest who, after returning stolen goods to their owner, refused, in the course of grand jury proceedings, to identify the person who had delivered the goods to him. In the confessional, the defendant, Daniel Phillips, revealed to his parish priest that he had knowingly received stolen goods. The priest insisted that Phillips return the stolen items. Phillips then brought the stolen goods to Father Kohlmann under cover of confidentiality of the Seal of Confession and the priest returned the items to the rightful owner.38<i class="footnote">See documentation supplied by Michael W. McConnell, “The Origins and Historical Understanding of Free Exercise of Religion,” <i>Harvard Law Review</i>, vol. 103, no. 7 (May, 1990), pp. 1410-11 and Sampson, p. 5.</i> Father Kohlmann was subpoenaed to appear before a grand jury to identify those responsible for the crime. In refusing to do so, Father Kohlmann testified:
  … if called upon to testify in quality of a minister of a sacrament, in which my God himself has enjoined on me a perpetual and inviolable secrecy, I must declare to this honorable Court, that I cannot, I must not answer any question that has a bearing upon the restitution in question; and that it would be my duty to prefer instantaneous death or any temporal misfortune, rather than disclose the name of the penitent in question. For, were I to act otherwise, I should become a traitor to my church, to my sacred ministry and to my God. In fine, I should render myself guilty of eternal damnation.39<i class="footnote">See McConnell, p. 1411.</i>
  The court upheld the priest's right not to testify under the right of "free exercise of religious profession and worship" guaranteed by the New York constitution adopted in 1777.40<i class="footnote">Subsequently, however, with the development of an extensive body of case law limiting free exercise rights in the face of a compelling state interest, courts were no longer willing to recognize the clergyman-penitent privilege as a constitutionally protected right. Thus, for example, when in <i>In re Fuhrer</i> a rabbi contended that both the freedom of religion guaranteed by the constitution of the State of New York as well as the Free Exercise Clause of the First Amendment protected him against a forced disclosure, the Court applied a balancing test in declaring that “where it is asserted that governmental action impermissibly treads on one’s right to freely exercise one’s religion, a balance must be struck weighing the governmental interest to be served against the claimed infringement of one’s First Amendment rights.” 100 Misc.2d 315, 318, 419 N.Y.S.2d 426, 429 (1979). See <i>supra</i>, note 2.</i>
  However, four years later in another unreported case, <i>People</i> v. <i>Smith</i>,41<i class="footnote">2 City Hall Rec. (Rogers) 77 (N.Y. 1817). See Note, “Privileged Communications,” p. 209.</i> a different New York court ruled that no such privilege existed for a Protestant minister. The court did not clarify the grounds for the distinction. To be sure, unlike Protestant denominations, the Catholic church requires its adherents to confess sins and binds its priests to secrecy. It would, however, be an error to ignore the impact that Father Kohlmann's impassioned testimony must have had upon the Court. There is every reason to assume that the Court did indeed believe that the priest would have accepted "instantaneous death or any temporal misfortune" rather than violate the sanctity of the confessional.42<i class="footnote">See Seward Reese, “Confidential Communication to the Clergy,” <i>Ohio State Law Journal</i>, vol. 21, no. 1 (Winter, 1963), p. 81.</i>
  The specter of a priest languishing in jail because he has been sentenced for criminal contempt is not very pleasant. There is always public sympathy for civil disobedience entered into for ideological reasons rather then for personal profit or benefit. Sympathy for civil disobedience in the name of religious liberty is even greater.43<i class="footnote">Cf., Yellin, pp. 111-112.</i>
  In seeking to compel the testimony of a Roman Catholic priest, the law faces a no-win situation. The law must recognize that the testimony will simply not be forthcoming.44<i class="footnote">Cf., Yellin, pp. 110.</i> The law then has the option of holding itself up to ignominy in a futile attempt to enforce its dictates or of pretending that no infraction has occurred and allowing the priest to flout the law. Either way the law will not be obeyed and will be held in disrespect. Far wiser to carve out a religious exemption that is perceived as principled, libertarian and respectful of religion. Recognition of a priest-penitent privilege allows the law to escape from between the horns of the dilemma and to preserve both religious freedom and respect for the law.
  Indeed, although often overlooked, the Free Exercise Clause of the First Amendment was rooted, at least in part, on precisely that consideration. The framers of the constitution of the United States made extensive use of the writings of John Locke and his influence upon the First Amendment was most direct.45<i class="footnote">See McConnell, pp. 1430-1431.</i> Locke recognized that religious intolerance was inconsistent both with public peace and good government and viewed religious rivalry and intolerance as among the most severe political problems of his day. Civil strife and lawlessness, not to speak of war between nations, were regarded by Locke as the product of religious turmoil. In an essay written in 1689, Locke states: "It is not diversity of opinion, which cannot be avoided; but the refusal of toleration to those that are of a different opinion, which might have been granted, that have produced all the bustles and wars, that have been in the Christian world, upon account of religion."46<i class="footnote">John Locke, <i>Letters on Toleration in The Works of John Locke</i> (London, 1823), VI, 53.</i> Elsewhere, decrying the futility of religious coercion, Locke writes, "… let divines preach duty as long as they will, 'twas never known that men lay down quietly under the oppression and submitted their backs to the blows of others, when they thought they had strength enough to defend themselves."47<i class="footnote">See H. R. Fox Bourne, <i>The Life of John Locke</i> (London, 1876), I, 190.</i> The way to avoid such strife is by assuring toleration and liberty of religious practice for all. Freedom of religious practice also enables a government to govern effectively. A populace that perceives its religious principles to be thwarted by the government will harbor deep resentment and disrespect for the ruling authority. The government will be deligitimized in the eyes of those whose religious liberties are denied; respect for the government and its laws will be compromised.
  Thus, there might be strong reason to craft a priest-penitent privilege to be granted to Catholic priests but not to other clergy for whom confidentiality does not rise to the level of inviolability. That distinction was intuitively recognized by the New York court. However, the principle of equality in the eyes of the law demands that a privilege granted to some be granted to all. And so, in 1828, the New York legislature enacted the nation's first statute recognizing the clergy privilege.48<i class="footnote">See N.Y. Rev. Stat. Pt. 3, ch. 7, tit. 3, §72 (1828).</i> Arguably, the anti-Establishment and Equal Protection clauses of the U.S. Constitution, which are now binding upon the states, would demand no less. In any event, most clergy will not testify concerning confidential communications regardless of whether there is a statutory privilege.49<i class="footnote">See Seward Reese, “Confidential Communication to the Clergy,” <i>Ohio State Law Journal</i>, vol. 21, no. 1 (Winter, 1963), p. 81.</i> Moreover, as one commentator has recently noted:
  If the clergyman believes that he has a duty of confidence that is unwaivable by religious doctrine…. The clergyman will be guided by the tenets of his faith rather than the rules of evidence, and he will risk contempt of court rather than compromise the protection of his ecclesiastic integrity. To compel disclosure would force the clergyman to choose between his religion and the court's wrath. The clergyman will probably be more willing to suffer at the hands of a human judge than at the hand of the Judge of Judges.50<i class="footnote">Jeffery H. Miller, “Silence is Golden: Clergy Confidence and the Interaction Between Statute and Case Law,” <i>American Journal of Trial Advocacy</i>, vol. 22, no. 1 (Summer, 1998), p. 64.</i>
  It would be paradoxical in the extreme to apply a privilege designed to accommodate religious conscience and practice in a situation in which it would have precisely the opposite effect. Forcing a clergyman to remain silent when his religious conscience demands that he speak out is no less a violation of religious liberty than is coercion in forcing him to violate the Seal of Confession.
  If the clergy privilege is designed to prevent the disrespect for law that would flow from inevitable disobedience to the demand for testimony, it would be anomalous to generate the identical disrespect for law that would arise from religiously mandated disobedience of a demand for non-disclosure. An attempt to seal the clergyman's lips upon threat of either criminal or civil sanctions when he believes that the tenets of his faith require that he disclose information imparted to him in confidence is likely to be frustrated by the clergyman's perceived duty to a higher authority. The inevitable result will be lessening of respect for temporal law.
  Memories of religious oppression of Jews by government officials under color of law have not yet receded from the collective memory of the Jewish community. Lack of respect, not only for discriminatory laws and oppressive regimes, but for government and civil law in general, persists in the psyche of many of those who experienced discrimination and religious persecution in the past. Scandalous events, of which we have witnessed far too many, serve to underscore how pernicious and infectious such attitudes can be. Forcing rabbis to become lawbreakers in violating the clergyman-penitent privilege when Jewish law demands that they do so is inimical both to the interests of the Jewish community and to the interests of society at large. Prudence demands that citizens not be subjected to crises of conscience that will inevitably result in erosion of respect for the law.
  V. A Proposed Remedy
  There is, however, a relatively simple legislative solution that would both preserve the benefits of the privilege and accommodate free exercise concerns. The clergy privilege is currently recognized in each of the states, the District of Columbia and in federal courts.51<i class="footnote">This is true for the federal rules of evidence as well. The clergy privilege was first recognized in federal common law in <i>Totten</i> v. <i>United States</i>, 92 U.S. 165, 107 (1875), and was reaffirmed in <i>Mullen</i> v. <i>United States</i>, 263 F.2d 275, 276 (D.C. Cir. 1958) (Faby, J. concurring), and is now embodied in Rule 505 of the Federal Rules of Evidence. However, Rule 501 provides that in federal civil actions, when an element of a claim or defense is determined by state law, the existence and scope of a privilege shall be determined by applicable state law. In <i>Eckmann</i> v. <i>Board of Education of Hawthorn School District No. 17</i>, 106 F.R.D. 70, 73 (E.D. Mo. 1985), the court ruled that the privilege recognized by federal common law belongs to the cleric.</i> At present, in New York, the privilege is held by the communicant, i.e., only the congregant52<i class="footnote">The corollary to this rule is that when the privilege is waived by the congregant the clergyman may be compelled to testify. See, however, <i>Pennsylvania</i> v. <i>Musolina</i>, 467 A.2d 605, 611 (Pa. 1983), in which the Court ruled that a priest was not required to testify even though the defendant had disclosed the religious communication in his confession to the State.</i> can waive the privilege and authorize testimony by the clergyman.53<i class="footnote">Ohio’s statute, Ohio Rev. Code Ann. §2317.02 (Banks-Baldwin 1996), provides that the clergyman “may testify by express consent of the person making the communication except when the disclosure of the information is in violation of the clergyman’s, rabbi’s, priest’s, or minister’s sacred trust.”</i> In other states, e.g., Illinois,54<i class="footnote">Ill. Comp. Stat. 5/8-803 (West 1992).</i> Ohio,55<i class="footnote">Ohio Rev. Code Ann. §2317.02.</i> Maryland56<i class="footnote">Md. Code Ann., Cts. &amp; Jud. Proc. §9-11 (1978).</i> and Virginia,57<i class="footnote">Va. Code Ann., §8.01-400 (Michie 1994). See <i>Seidman</i> v. <i>Fishburne-Hudgin Foundation, Inc.</i>, 724 F.2d 413 (4th Cir. 1984).</i> the privilege is held by the clergyman.58<i class="footnote">Many of these statutes, including a number of those vesting the privilege in the communicant, contain language apparently limiting the privilege to confessions made in the course of discipline enjoined by the rules or practices of the denomination. See Reese, pp. 67-73 and <i>supra</i>, note 2.Thus, in <i>Magar</i> v. <i>Arkansas</i>, 826 S.W.2d 221, 222 (Ark. 1992), the privilege was denied to a minister of the New Life Christian Fellowship who testified that “confession is not a tenet of his church and keeping evidence of a crime confidential is within the discretion of the pastor”; in <i>Illinois</i> v. <i>Diercks</i>, 411 N.E.2d 97, 101 (Ill. App. Ct. 1980), the court found that the defendant failed to establish that disclosure of the confession “would be enjoined by the rules or practices of the Baptist Church”; and in <i>Kansas</i> v. <i>Andrews</i>, 357 P.2d 739, 743 (Kan. 1960) cert. denied, 368 U.S. 868 (1961), the court denied the privilege to a Baptist minister under the then governing state statute on the grounds that “that there was no course of discipline in the Baptist church by which a member thereof was enjoined to confess his sins to a minister of the church.” See also <i>Johnson</i> v. <i>Commonwealth</i>, 310 Ky. 557, 221 S.W.2d 87, 89 (1949); <i>Radecki</i> v. <i>Schuckardt</i>, 50 Ohio App.2d 92, 4 Ohio Op.3d 60, 361 N.E.2d 543, 546 (1976); and Annotation, Matters to Which the Privilege Covering Communications to Clergyman or Spiritual Adviser Extends, 71 A.L.R.3d 794, 807-08 (1976).In effect, in these decisions the courts understand the statutes involved as reserving the privilege to Catholics and any others who say require confession to a clergyman by virtue of church discipline. See, however, <i>Scott</i> v. <i>Hammock</i>, 133 F.R.D. 610 (Dist. Ct. Utah 1990), in which a federal magistrate interpreted the relevant language of the Utah statute in a much broader manner. The Federal District Court certified the question to the Supreme Court of Utah which accepted a broad interpretation of the statute. See <i>Scott</i> v. <i>Hammock</i>, 870 P.2d 947 (Utah, 1994). It should be noted that the Michigan statute (Mich. Comp. Law Ann. §600.2156) (West 1986) refers specifically to a “minister of the gospel, or priest of any denomination whatsoever, or duly accredited Christian Science practitioner” in prohibiting disclosure of “any confession” made “in the course of discipline enjoined by the rules or practice of such denomination.” Since Christian Science does not require confession to a clergyman or practitioner, inclusion of Christian Science practitioners among the clergy upon whom the privilege is conferred presumably indicates that the terms “confession” and “discipline” must be construed broadly.</i> In those states, although the clergyman cannot be compelled to testify, he may choose to voluntarily disclose the content of the communication.59<i class="footnote">A number of states, including Georgia (Ga. Code Ann. §24 -9-22 (1982), Michigan (Mich. Comp. Law Ann. §600.2156) (West 1986), Missouri (Mo. Ann. Stat §491.060) (West 1996), Vermont (Vt. Stat. Ann. Tit 12, §1607) (1947) and Wyoming (Wyo. Stat. § 1-12-01) (1977), also vest the privilege in the clergyman but, if read literally, either declare the clergyman to be incompetent to testify or otherwise employ absolute language negating the possibility of a waiver. Cf., however, <i>Alpharetta First United Methodist Church</i> v. <i>Stewart</i>, 221 Ga. App. 748, 472 S.E. 532 (1996), which includes dicta in which the Court assumes <i>en passant</i>, without discussion or reference to the language of the statute (“… nor shall such minister, priest, or rabbi be competent or compellable to testify…”), that the privilege may be waived by the clergyman. See also <i>Eckmann</i> v. <i>Board of Education of Hawthorn School District, supra</i>, note 47, in which a federal court interpreted the Missouri statute as giving the clergyman the right to claim or waive the privilege.</i> Accordingly, the religious concerns of the Jewish community would best be served if states in which the privilege is held by the penitent, including <i>inter alia</i>, Connecticut, Massachusetts, Michigan and Ohio, as well as New York, were to amend their codification of the privilege and stipulate that it may be waived by the clergyman.60<i class="footnote">Many states, California [Cal. Evid. Code §1030-1034 (West 1995)] and New Jersey [N.J. Stat. Ann. §2A:84A-23 (West 1994); N.J. R. Evid. 511] among them, provide that the privilege may be claimed either by the communicant or by the clergyman. Those statutes would also require modification to permit disclosure by the clergyman when compelled to do so by reason of religious conscience much as the New Jersey statute presently permits (but does not require) the clergyman to waive the privilege if the communication “pertains to a future criminal act.”</i> The result would also conform with the original intent and purpose of the privilege which was designed not so much to encourage free and open communication between clergyman and congregant as it was to protect the religious liberty of priests and penitents.
  
  Chapter III Mizvot in the Polar Regions and in Earth Orbit
  
  <i>"Who appointed the moon for seasons" (Psalms 104:19). R. Yoḥanan commented: The orb of the sun alone was created to give light. If so, why was the moon created? "For seasons": in order to sanctify new moons and years thereby. R. Shila of Kefar Temarta said in R. Yoẕanan's name: Yet even so, "the sun knows its coming" (Psalms 104:19): from the sun one knows the [month's] coming, for we count the beginning of the month only from sunset</i>.
  BERESHIT RABBAH 6:1
  I. The Problem
  Some time during the early period of space exploration, this writer was present at a gathering at which Milton Himmelfarb delivered a talk on the state of the Jewish community. After pointing out that Jews had achieved acceptance, and indeed prominence, in the professions, public service, finance etc., he digressed to note that there had been no Jewish astronauts. To explain that exception to the already well-established norm, Himmelfarb lapsed into Yiddish in explaining that no Jew wished to become a pioneer in space travel: "<i>Dort ken men doch derharget veren</i>—A person could get killed out there!" Afterward, this writer commented, only partially tongue in cheek, that Jews perforce abjure space travel because of a quandary with regard to the proper time for prayer and because of confusion with regard to observance of <i>Shabbat</i>.
  Although Himmelfarb's comment was ominously prescient, with regard to Jews choosing space travel as a profession, time has proved both of us to have been wrong. In the ensuing years there have been a significant number of Jewish astronauts. The first was Dr. Judith Resnick who flew on the maiden voyage of Discovery in 1984 and who was aboard the ill-fated Challenger in which she perished with the rest of the crew shortly after takeoff. At the time of her planned flight there were reports, perhaps apocryphal, that she had expressed curiosity with regard to determining the proper time for kindling Sabbath candles. Later, for some reason, another Jewish astronaut, Scott Horowitz, took with him an artifact described as a "space Torah" and subsequently presented that memento to a temple in Houston. David Wolf flew on three shuttle flights and spent four months, including Chanukah, on the Russian space station Mir. Although kindling a menorah would have been dangerous in the oxygen-rich atmosphere of the space station, he did spin a <i>dreidel</i> which Wolf claims he was able to spin in zero gravity for an hour and a half on a single twirl.1<i class="footnote">See Mark Mietkiewicz, “Jews in Space—part 1,” <i>Canadian Jewish News</i>, June 27, 2002, p. 15.</i>
  Most recently, in January of 2003, after repeated postponements, Colonel Ilan Ramon, the first Israeli astronaut, joined a crew of NASA astronauts aboard the space shuttle Columbia on a mission that ended in tragedy sixteen days later on February 1st. Kosher food of a type that can be reconstituted in space was prepared for the Jewish astronaut by a company in Illinois. He also consulted a rabbi identified with the Lubavitch movement serving in the vicinity of Cape Canaveral with regard to the proper method of determining when to observe <i>Shabbat</i>. Colonel Ramon indicated to one reporter that he was not strictly Sabbath observant and would also find it impossible fully to observe <i>Shabbat</i> during his mission in space, but that he nevertheless felt that in participating in the space program he was "representing all Jews and all Israelis" and therefore should endeavor to conduct himself accordingly.2<i class="footnote">See the <i>London Jewish Chronicle</i>, May 24, 2002, p. 10 and <i>Jewish Week</i>, July 12, 2002, p. 3. See also <i>JTA Daily News Bulletin</i>, July 15, 2002, p. 2.</i>
  One may surely hope that the interest and discussion evoked by Colonel Ramon's query will impress upon others the importance of Sabbath observance. In any event, the sentiments he expressed are themselves quite salutary: A Jew may not have developed the spiritual fortitude that fosters consistency in abiding by the demands of Judaism but may nevertheless intuitively shrink from public transgression. The Jewishness that was at the core of his being caused him to recoil from unnecessary Sabbath desecration that was <i>be-farhesiya</i>, i.e., public and notorious. With the eyes of the world focused not only upon the flight of the space shuttle but upon the Israeli crew member in particular, the actions of that individual were indeed public and were perceived as representative of the Jewish people as a whole.
  The issue of Sabbath observance aboard a space ship is a novel extension of the much older question of Sabbath observance in the polar regions and adjacent areas in which daylight and darkness extend for months at a time rather than alternating in periods of approximately twenty-four hours. Determination of the prescribed time for morning, afternoon and evening prayers as well as for other time-bound <i>mizvot</i> presents the identical problem. Jewish commercial travelers reached areas relatively close to the North Pole long before anyone, Jew or gentile, seriously dreamed of space travel.
  Those questions received serious attention but hardly unequivocal resolution either because of doubt engendered by disagreement with regard to the proper solution of the problem or because measurement of time at the antipodes and/or in space is a matter of intrinsic halakhic doubt to which there is no resolution. The rabbinic attitude <i>vis-à-vis</i> proper comportment in the polar regions is eloquently captured in a letter written in 1886 by Rabbi Simcha ha-Levi Bamberger to his son that is published in the former's responsa collection, <i>Zekher Simḥah</i>, no. 30. Rabbi Bamberger's son was considering a trip to Norway for some business purpose and consulted his father regarding the appropriateness of the halakhic ruling of an unnamed Norwegian rabbi with regard to Sabbath observance. After discussing the problem and offering his own opinion, <i>Zekher Simḥah</i> concludes: "However, all this is Halakhah but in practice my inclination is: Why should a person, even during weekdays, place himself in a state of doubt with regard to reading the <i>Shema</i> and prayer? At the minimum, do not remain in that country on <i>Shabbat</i> [where] there is doubt with regard to what to do. Nothing prevents God from bestowing blessing and success wherever your feet tread for good." A rabbinic decisor's fatherly advice and blessing to his son was to avoid halakhic doubt and find divine bounty elsewhere.
  II. R. Jacob Emden
  The first rabbinic authority to address the question of time at the polar regions was the eighteenth-century scholar R. Jacob Emden whose opinion gained wide currency due to its citation in <i>Sha'arei Teshuvah, Oraḥ Hayyim</i> 344:1. R. Jacob Emden is quoted in that source as ruling that "those traveling below the polar region where the day is prolonged into a month or two months and [in some places] six months should count six days of our twenty-four equal hours," i.e., the advent of <i>Shabbat</i> should be deemed to occur after six periods of twenty-four clock hours have elapsed. In context, the implication of <i>Sha'arei Teshuvah</i>'s citation of R. Jacob Emden's view is certainly that the seventh cycle of twenty-four hours is to be regarded as <i>Shabbat</i> in every respect. However, a careful examination of R. Jacob Emden's comments in his <i>Mor u-Kezi'ah</i> 334 in their entirety reveals a certain ambiguity in Rabbi Emden's position. <i>Mor u-Kezi'ah</i> comments:
  It is necessary to reflect upon [the manner in which] those who dwell or travel in the lands near the poles should conduct themselves. For, in proportion to proximity [to the pole], the day becomes lengthened. There [are places in which] a month or two months and even longer may be a day to the extent that there exists a place where the day is prolonged to half a year and similarly the night is half a year. And under the pole there is no day and night at all; rather there is twilight [during] the entire year for in that place there is no sunrise or sunset because the [celestial] equator is its horizon. If so, how should they establish <i>Shabbat</i> there? It seems to me that there it is necessary to count seven equal days of twenty-four of our equal hours, and calculating from the day that one arrived there, one should count days by means of hours and sanctify the seventh in the manner mentioned earlier with regard to a traveler in the desert.
  <i>Mor u-Kezi'ah</i>'s assertion that there is neither night nor day at the North Pole itself (or at any other place that might be denoted by the phrase "under the pole") because the sun never rises and never sets is simply an empirical error. It is true that a person standing at the North Pole who looks out over the horizon will observe all stars north of the equator because, at the North Pole, the celestial equator can be seen on the horizon. However, it is precisely at the North Pole that day and night are each six months in duration and at no place is there year round twilight. Assuming, however, that <i>Mor u-Kezi'ah</i>'s description is factually accurate and that, in the absence of sunrise and sunset, the halakhic day is to be calculated as a period of twenty-four clock hours, it remains necessary to determine when the sequence of days begins in order to determine the seventh day of each weekly cycle. Logic would dictate that "time" at the North Pole began when time began for the rest of the planet. However, instead of being contingent upon a sequence of sunrises and sunsets, time at the North Pole is calculated by means of clock hours. If that is the case, then <i>Shabbat</i> should be observed on the North Pole on the same "day" that it is observed elsewhere in the globe although, to be sure, <i>Shabbat</i> would begin and end throughout the year at the same hour. In effect, the North Pole would have its own "local" time just as the day begins and concludes at every other geographic point on earth in accordance with its own local time. The sole difference being that "local" time at the North Pole is idiosyncratic in that it is to be determined by consulting the clock while elsewhere local time depends upon sunrise and sunset.
  But <i>Mor u-Kezi'ah</i> says something astoundingly different. He rules that the week commences with the arrival of the traveler who then counts six days before sanctifying the seventh. Apparently, every traveler begins calculating his own weekly cycle upon arrival regardless of which day of the week it might be elsewhere on the globe.3<i class="footnote">See, however, R. Joseph Chaim David Azulai, <i>Maḥazik Berakhah</i> 344:4, who asserts that <i>Mor u-Keẓi‘ah</i> does not mean to imply that the traveler’s calculation begins with Sunday but that <i>Mor u-Keẓi‘ah</i> means to say that the traveler commences calculating further twenty-four hour days from the day of the week that he arrives in such a locale. Cf., R. Samuel David Siegel, <i>Aḥuzat Sadeh</i> (Baltimore, 5740), p. 106, who disputes that understanding of <i>Mor u-Keẓi‘ah. Maḥazik Berakhah</i>’s interpretation of <i>Mor u-Keẓi‘ah</i> is, however, accepted by R. Betzalel Stern, <i>Ahalekh be-Amitekha</i> (Jerusalem, 5752) 30:16, note 24, who rules in accordance with the view of <i>Mor u-Keẓi‘ah</i>.</i> The resultant situation is certainly anomalous: Not only do two travelers observe <i>Shabbat</i> on two different days but neither of them observe <i>Shabbat</i> on the day of the week on which it is observed by Jews elsewhere in the world!4<i class="footnote">Cf., however, the immediately preceding comment of <i>Mor u-Keẓi‘ah</i> in which he entertains such a possibility with regard to travelers who circumnavigate the globe in different directions.</i>
  Moreover, <i>Mor u-Kezi'ah</i> rules that the identical procedure must be followed not only in fictitious places where the sun always shines but also in areas in which the cycles of daylight and darkness are a month, two months or six months in duration despite the fact that in those locales the phenomena of sunrise and sunset do occur, albeit at intervals that vary greatly from other places.
  It seems to this writer that the key to understanding the import of <i>Mor u-Kezi'ah</i>'s ruling is in his concluding phrase: "and he sanctifies the seventh in the manner that has been mentioned earlier with regard to a traveler in the desert." If one reflects upon that comment for but a moment it seems to be entirely inappropos. To be sure, the rule codified in <i>Shulḥan Arukh, Oraḥ Hayyim</i> 344:1, is that a traveler in the desert who becomes confused and no longer knows which day of the week it is counts six days and sanctifies the seventh. But the days that he counts are conventional solar days, not twenty-four hour clock days. Moreover, that halakhic provision in no way reflects the notion that the days of the week are to be determined in an arbitrary, subjective or individual manner. Quite to the contrary, doubt with regard to the identity of each day of the week—and hence the objective determination of <i>Shabbat—</i>is not at all dispelled by adoption of an arbitrary convention. For that reason, the rule as recorded by <i>Shulḥan Arukh</i> is that since the traveler remains in a quandary he must refrain from activity forbidden on <i>Shabbat</i> on each and every day.5<i class="footnote">See <i>Mishnah Berurah, Bi’ur Halakhah</i> 344:1, who rules that such a person must also don tefillin every day, including the day he observes as <i>Shabbat</i>. Cf., however, <i>Kaf ha-Ḥayyim, Oraḥ Ḥayyim</i> 344:6, who cites a conflicting opinion. See also R. Simcha Levy, <i>Simḥat ha-Levi</i>, no. 32.</i> The traveler is permitted to perform any act necessary to sustain life and such acts are permitted even on the day that he observes as <i>Shabbat</i>. Thus, he may cook as much food as necessary to meet his minimum requirements on each day of the week, including the day that according to his arbitrary calculation is Saturday. He is also permitted to do whatever is necessary in order to emerge from the desert as quickly as possible so that he may return to proper Sabbath observance and he may engage in such travel even on the day that he observes as <i>Shabbat</i>. The confused traveler observes the day designated as the Sabbath solely through recitation of <i>kiddush, havdalah</i> and <i>Shabbat</i> prayers.6<i class="footnote">See Mishnah Berurah 344:3. Cf., however, <i>Kaf ha-Ḥayyim</i> 344:5 who cites authorities who maintain that the weekday payer should be recited even on the day observed as Shabbat. <i>Kaf ha-Ḥayyim</i> himself rules that the Sabbath prayer should be recited but that the <i>musaf</i> prayer should be omitted.</i> Those observances are rabbinically ordained for the day designated by the traveler as his personal Sabbath lest the confused traveler forget the very concept of <i>Shabbat</i>.7<i class="footnote">See R. Yekuti’el Yehudah Halberstam, <i>Teshuvot Divrei Yaẓiv, Oraḥ Ḥayyim</i> (Netanya, 5756), no. 108, sec. 15, who understands <i>Mor u-Keẓi‘ah</i> as positing only a rabbinic obligation.</i>
  Application of that rabbinic decree to a hypothetical geographic area in which there is perpetual daylight is problematic to say the least. Its application to locales in which the day is inordinately long in duration is even more baffling. There is no hint in that rabbinic decree indicating that in a place where there is no sunrise or sunset the day is to be calculated as twenty-four clock hours in length and certainly no suggestion that where there is sunrise and sunset that the "days" cannot be weeks or months in duration. Moreover, the rabbinic decree is limited solely to matters of liturgy and ritual but does not permit transgression of even rabbinically ordained strictures on any day of the week.
  It seems to this writer that <i>Mor u-Kezi'ah</i> regarded the establishment of halakhic time, and hence of the Sabbath, in the places under discussion to be a matter of unresolvable doubt. To be sure, as clearly enunciated by R. David ibn Zimra, <i>Teshuvot ha-Radvaz</i>, I, no. 76,8<i class="footnote">See also <i>Parashat Derakhim, Drush</i> 23, s.v. <i>od nakdim</i>; R. Israel Lipschutz, <i>Tiferet Yisra’el, Berakhot</i>, note appended to <i>Bo‘az</i>, end of chapter 1; R. Chaim Joseph David Azulai, <i>Birkei Yosef, Oraḥ Ḥayyim</i> 242:1; R. Joseph Saul Nathanson, <i>Teshuvot Sho’el u-Meshiv, Mahadura Revi’a’ah</i>, no. 154; and R. Benjamin Aryeh Weiss, <i>Teshuvot Even Yekarah</i> (Lemberg, 5654), no. 11.</i> determination of the onset and conclusion of <i>Shabbat</i> is determined locally. Leviticus 23:3 mandates that the Sabbath be observed "in all your habitations." That phrase is understood by Radvaz9<i class="footnote">A similar interpretation of that verse was earlier advanced by Seforno in his commentary <i>ad locum</i>. See also the interpretation of Exodus 31:16 advanced by the <i>Zohar</i>, Genesis 56a. The verse “And the children of Israel observed the Sabbath to make the Sabbath for their generations (<i>le-dorotam</i>)” is rendered by the <i>Zohar</i> as “to make the Sabbath for their dwellings (<i>le-dirotam</i>).”</i> as signifying that the onset and conclusion of <i>Shabbat</i> is to be determined in accordance with sunset at each particular "habitation."10<i class="footnote">R. Abraham ibn Ezra, in his commentary to Genesis 33:10, understands the verse “And the sun rose upon him” (Genesis 32:32) as reflecting this underlying solar phenomenon, i.e., the sun rose for Jacob in the locale in which he found himself but did not rise simultaneously in other areas.R. Isaac di Trani, renowned as the author of <i>Teshuvot Maharit</i>, declares in his <i>Ẓofnat Pa‘aneaḥ</i> (Venice, 5413), <i>Drush le-Parashat Bereshit</i>, that the work of creation did not cease throughout the globe at a single instant. Rather, the process of creation came to a halt at each point when night fell at that spot. In effect, in observing <i>Shabbat</i> as determined by local sunset, man emulates the Creator who ceased from the process of creation at different times in different places. <i>Ḥatam Sofer</i>, cited by R. Israel David Jaffe, <i>Ḥazon le-Mo‘ed</i>, no. 8, sec. 7, also stated that this was the case during each of the six days of creation: the work of each day did not take place simultaneously throughout the world; rather, the entities created on each day of the week were created in every geographic area while it was day in that locale. This, <i>Ḥatam Sofer</i> asserts, applied even to the “ten things” which the Mishnah, <i>Avot</i> 5:6, declared to have been created on the sixth day between sunset and nightfall, i.e., those objects were created in different places at different times. <i>Ḥatam Sofer</i> interprets the verse “And God finished on the seventh day… and He rested on the seventh day” (Genesis 2:2) as referring, not to a single act of cessation of labor, but to a divine comportment at two different places, <i>viz</i>., God completed the work of creation at one locale while at the same time resting at another locale. See also R. Yechiel Michal Tucatzinsky, <i>Bein ha-Shemashot</i> (Jerusalem, 5729), p. 53; <i>idem, Yomam</i> (Jerusalem, 5703), p. 73; and R. Ben-Ẓion Uziel, <i>Mishpetei Uzi’el, Oraḥ Ḥayyim</i>, II, no. 29. Cf., R. Menachem Kasher, “Shabbat Bereshit u-Shabbat Sinai,” <i>Talpiyot</i>, vol. I, no. 1 (Tishri 5704), pp. 415-420.Cf., however, <i>Teshuvot Sho’el u-Meshiv, Mahadura Revi’a’ah</i>, who candidly acknowledges that, in observing <i>Shabbat</i> according to local time “in all their habitations,” Jews do not observe <i>Shabbat</i> during the same time period in which the Creator ceased from the work of creation. Moreover, he regards that concept to be reflected in the otherwise problematic words of the <i>musaf</i> prayer: “a people who sanctify the seventh day (<i>am mekaddeshei shevi‘i</i>).” Jews sanctify the month and hence the festivals which are calendar dependent. <i>Shabbat</i>, however, is predetermined and does not require sanctification of the new moon by the <i>Bet Din</i>. Nevertheless, explains <i>Sho’el u-Meshiv</i>, since Jews must observe <i>Shabbat</i> “in all their habitations” at different times they are indeed a “people who sanctify the seventh day.”</i> <i>Shabbat</i> is designed as a "sign between Me and between you" (Exodus 31:13) and accordingly, is to be observed during the period representing the culmination of six days of labor in each person's locale. The Sabbath day, which includes a period of darkness and a period of daylight, is roughly twenty-four hours in length in all places other than in the extreme northern and southern regions. As a result, the Sabbath is observed on the same day of the week in all parts of the globe. Accordingly, <i>Mor u-Kezi'ah</i> assumes that in locales in which that cannot be the case there is no discernible method for determining the days of the week. Hence, determination of the advent of <i>Shabbat</i> remains either a matter of irresolvable doubt or, alternatively, there is no concept of halakhic time in such places. Therefore, <i>Mor u-Kezi'ah</i> rules that a person finding himself in such a place faces a problem that is no different from that confronting a person lost in the desert or confused with regard to a sequence of days and must conduct himself in an identical manner. That is precisely the import of <i>Mor u-Kezi'ah</i>'s concluding phrase "in the manner indicated earlier with regard to one who travels in the desert," i.e., he may perform no forbidden act on any day of the week and must recite <i>kiddush</i> and <i>havdalah</i> on the seventh day of every seven-day cycle subsequent to his arrival.
  But even that understanding of <i>Mor u-Kezi'ah</i>'s position remains problematic if there is no halakhic <i>time</i> in such regions. Were that the case, there would be no <i>Shabbat</i> and hence no forbidden acts. Rabbinic legislation regarding <i>kiddush</i> and <i>havdalah</i> might well be cogent as a means of keeping the concept of <i>Shabbat</i> alive but the element of doubt that renders proscribed acts impermissible on any day that might possibly be <i>Shabbat</i> is not at all present in an area in which there is no time and hence no Shabbat. Accordingly, it would seem that <i>Mor u-Kezi'ah</i> should be understood as assuming that halakhic time does exist in the polar regions but that a method of calculating the passing of time in such areas is not available to us. Accordingly, all matters requiring a determination of time remain a matter of irresolvable doubt in such areas.
  Understood in this manner, <i>Mor u-Kezi'ah</i>'s position is cogent but nevertheless open to objection. As a matter of general principle, rabbinic legislation was designed for the usual and the anticipated but <i>milta de-lo shekhiḥa lo gazru bah rabbanan</i>, the unusual and the unanticipated, are not subsumed within the ambit of rabbinic legislation. For the Sages, the possibility of becoming lost in a desert was certainly not farfetched; however, travel to the polar regions would not merely have been unanticipated but would have been inconceivable. Moreover, rabbinic legislation is to be interpreted on the basis of the principle of strict construction. Talmudic decrees apply only to specified conditions under specified circumstances. The Sages promulgated an edict requiring recitation of <i>kiddush</i> and <i>havdalah</i> in a situation in which the proper day for observance of the <i>Shabbat</i> is known to one and all with the exception of an isolated traveler who has become confused. Even the confused traveler is obligated to observance of the proper day as a matter of objective certainty; the problem is that he does not know what everyone else does know, <i>viz</i>., which day that is. Hence the Sages promulgated a decree requiring at least some form of observance for even this individual lest he become entirely desensitized to the notion of <i>Shabbat</i>.
  However, <i>Shabbat</i> in the polar regions is a matter of doubt for everyone. There is no evidence of a rabbinic decree requiring <i>kiddush</i> and <i>havdalah</i> on any day in a situation in which no one knows and no one can possibly know which day is <i>Shabbat</i>. Even though we might think it wise and spiritually edifying to legislate some form of positive <i>Shabbat</i> observance even is such circumstances, the notion of strict construction would lead to the conclusion that, since such a contingency is technically outside the parameters of existing rabbinic legislation, there is, in reality, no such obligation.
  There is a much more fundamental difficulty in understanding the view that <i>Mor u-Kezi'ah</i> apparently espouses. If halakhic time does exist even in the absence of sunrise and sunset but its calculation is always a matter of irresolvable doubt, it is not clear why such doubt does not persist even after the phenomena of sunset and sunrise reappear with the change of the seasons. Since there is no intrinsic reason why a single day must be twenty-four hours in duration, the "time" elapsed may be more or less than on the rest of the globe. If so, in any place in which there is no sunset or sunrise for any extended period during the year there is no way to gauge the period of time that elapses during that interval. Hence, the entire calendrical system in such a locale becomes subject to doubt that is generated during the period of constant daylight or constant darkness.
  That problem is even more severe than may appear to be the case. For Rabbenu Tam who maintains that <i>zet ha-kokhavim</i>, or night, occurs only when the sun's angle of declension is 16.1 degrees below the horizon there is no "night" during some days of June as far south as London. If one were to adopt the theory herein outlined all calculations of the days of the week as well as the dates of the month in areas north of fifty-two degrees latitude would, according to Rabbenu Tam, be subject to doubt. Indeed, the identical problem presents itself north of sixty degrees latitude, an area that includes places such as St. Petersburg, even according to those who disagree with Rabbenu Tam.11<i class="footnote">See R. Chaim Druck, <i>Orot Ḥayyim</i> (Jerusalem, 5730), p. 466.</i>
  III. Tiferet Yisra'el
  Perhaps the most widely cited source with regard to Sabbath observance at the North Pole is a note authored by the nineteenth-century authority R. Israel Lipschutz and published in his classic commentary on the Mishnah, <i>Tiferet Yisra'el</i>, as an addendum to his commentary on the first chapter of <i>Berakhot. Tiferet Yisra'el</i> carefully distinguishes between places such as his own city of Danzig, as well as Copenhagen and Stockholm, in which there is always at least a brief period of dusk, and places further north in which "there is no night at all but only daylight during the months of June and July." He also expresses concern with regard to people who sail close to the North Pole in order to catch "whalefish" because in that locale there are a number of months during the summer in which there is only daylight. <i>Tiferet Yisra'el</i> does not cite <i>Mor u-Kezi'ah</i> but adopts a position that is remarkably similar to that of R. Jacob Emden in one salient aspect. As did his predecessor, <i>Tiferet Yisra'el</i> rules that each twenty-four hour period constitutes a day. In support of that conclusion he draws upon the fact that the sun can be observed as completing a full circle above the horizon each twenty-four hour period. However, his position is fundamentally different from that of <i>Mor u-Kezi'ah</i> in that <i>Tiferet Yisra'el</i> maintains that the day is determined objectively rather than individually by each traveler. Thus throughout the year Shabbat occurs at the North Pole the same day as it does on the rest of the globe and is objectively determined by the "revolutions" of the sun in the sky. In the polar regions the sun is observed as moving in a circular pattern and completes a full circuit in the overhead sky every twenty-four hours. Each of those twenty-four hour circuits, maintains <i>Tiferet Yisra'el</i>, represents a single day.12<i class="footnote">R. Kalman Kahana, <i>Ha-Ish ve-Ḥazono</i> (Tel Aviv, 5724), p. 100, quotes an unpublished section of the manuscript of <i>Ḥazon Ish</i>’s “Kuntres Yod-Ḥet Sha’ot” in which <i>Ḥazon Ish</i> similarly declares that, in the polar regions, the sun’s completion of a twenty-four hour circuit represents a full day and the seventh circuit is the Sabbath day. A similar opinion is also espoused by R. Yechiel Michal Tucatzinsky, <i>Bein ha-Shemashot</i>, p. 55, who cites that view as earlier expressed by R. Jehoseph Schwartz, <i>Teshuvot Divrei Yosef</i> (Jerusalem, 5621), no. 8. [See also <i>Teshuvot Even Yekarah</i>, no. 11, who also addresses the problem of the biblical reference to “days” prior to the creation of the sun and comments that the biblical “day” is to be defined as the length of time required for the earth to make a complete revolution on the axis, i.e., twenty-four hours.] However, neither Rabbi Tucatzinsky nor <i>Ḥazon Ish</i> offer a clue with regard to the point in the sky which, when traversed by the sun, marks the beginning and the end of <i>Shabbat</i>. See <i>infra</i>, note 13. R. David Spira, <i>Teshuvot Bnei Ẓion</i>, III, <i>Kuntres Midat ha-Yom</i>, sec. 21, states that, during the polar winter, days are demarcated by the circuit of the stars in the overhead sky. <i>Teshuvot Divrei Yaẓiv, Oraḥ Ḥayyim</i>, no. 108, sec. 11, suggests that the day’s beginning and end should be regarded as congruent with the beginning and end of the day in the Land of Israel. Cf., <i>infra</i>, note 15.R. Yechiel Michal Gold, <i>Me’asef le-Khol ha-Maḥanot, Oraḥ Ḥayyim</i> 18:25, finds what he terms “clear evidence” for the underlying assumption that the “day” may be defined in terms of the revolution of celestial bodies rather than by the appearance of the sun in the comments of Rabbenu Baḥya, Genesis 1:13. Rabbenu Baḥya questions the cogency of the verse that declares “and it was evening, and it was morning” with reference to the first three days of creation, i.e., before the creation of the sun. Rabbenu Baḥya explains that the reference is not to “the light” but to “the sphere in which it revolves for, with regard to every portion of the sky, when it ascends that is its morning and when it sinks [below the horizon] that is its evening.” See also Ramban, <i>Commentary on the Bible</i>, Genesis 1:5. However, although Rabbenu Baḥya’s comments may provide support for the notion that demarcation of successive days may be determined on the basis of the rising and setting of celestial bodies other than the sun, those comments have no bearing upon the question of whether completion of a 360 degree rotation in the overhead sky has a similar import. See, however, R. Eliezer Ashkenazi, <i>Ma‘asei ha-Shem</i> (Venice, 5343), Genesis 1:5, who asserts that the first day of creation was determined by circuitous movement of the heavens whose return to the point of creation marked the completion of a day. <i>Ma‘asei ha-Shem</i> expressly applies that concept to the polar area in declaring, “There is no doubt that even one [for whom] the pole is above his head is obligated to observe <i>Shabbat</i> on the seventh circuit even though there was no darkness there at all.”</i> However, <i>Tiferet Yisra'el</i> fails to identify a phenomenon that might serve to demarcate successive days during the polar night when the sun is entirely concealed.13<i class="footnote">In a note appended to <i>Mo‘adim u-Zemanim</i>, II, no. 155, R. Moshe Sternbuch opines that “the day changes at precisely the moment that the sun reaches its most distant point and begins to draw closer.” The “most distant point” to which <i>Mo‘adim u-Zemanim</i> refers is presumably the point most distant in the sky from the point at which the sun makes its first appearance at the beginning of the polar spring. <i>Mo‘adim u-Zemanim</i> declares that “night” in such areas is no more than a split second in duration. See also <i>Teshuvot ve-Hanhagot</i>, I, no. 315. See as well <i>Me’assef le-Khol ha-Mahanot, Oraḥ Ḥayyim</i> 18:25, s.v. <i>ve-hineh mah she-katav mori</i>, who also states that the Sabbath must be observed only for the amount of time that it takes the sun to complete a single circuit.It may be noted that at the North Pole the sun neither rises nor declines in the course of its daily circuit. Rather, the sun is observed as circling the horizon once each day in a constant orbit that is a bit higher over the horizon each day until it reaches a height of approximately 23.5° at the time of the summer solstice. However, as one proceeds some distance south of the Pole, the sun, although it does not descend below the horizon during that period, may nevertheless be observed during the course of its daily circuitous movement above the horizon. In those areas—and only in those areas—it might be contended that day and night begin and end when the sun is at its lowest point above the horizon. See R. Eliyahu Baruch Kepetsch, <i>Koveẓ Bet Aharon ve-Yisra’el</i>, Tishri-Ḥeshvan, 5757, p. 150 and cf., R. David Heber, “When Does One Pray When There Is No Day?” <i>Kashrus Kurrents</i>, Autumn, 2002, pp. 17f.Adopting a somewhat different position, R. Jehoseph Schwartz, <i>Teshuvot Divrei Yosef</i> (Jerusalem, 5622), no. 8 and <i>idem, Divrei Yosef, Tevu’ot Shemesh</i> (Jerusalem, 5603), <i>Derekh Mevo ha-Shemesh</i>, p. 61b, states that the point in the sky occupied by the sun at its first appearance in the polar region in the spring represents the beginning of each “day” and the point at which the sun is last seen before it sets in the fall represents the beginning of each “night.” Accordingly, “day” and “night” commence when the sun reaches those points in the sky during the course of each twenty-four hour circuit. <i>Divrei Yosef</i>, p. 62a, asserts that during the winter months a similar determination is made on the basis of the position of the “two stars of the Little Bear, [which are in the] vicinity of the star of the Pole (the North Star),” i.e., the position of their first sighting in the fall marks the beginning of the “night,” and “day” begins when those stars have moved 180 degrees across the sky.<i>Divrei Yosef</i>’s description of the astronomical phenomena during the polar winter is both imprecise and inadequate as a basis for resolution of the problem. Pherkad, a third magnitude star, and Kochab, a second magnitude star, are known as the “Guardians of the Pole” because they circle Polaris (the North Star). All three stars are part of Ursa Minor (the Little Bear). The first two stars of Ursa Minor to become visible are Kochab and Polaris (the North Star). Both are second magnitude stars. However, the first celestial bodies to become visible are the planets Venus and Jupiter. Those planets do not become clearly visible until close to the end of civil twilight, i.e., when the sun drops six degrees below the horizon. At the North Pole civil twilight does not end until October 8. The first star to become visible north of the celestial equator is the zero magnitude star Arcturus in the constellation Bootes and is followed closely by the slightly smaller star Vega in Lyra and then by Capella in Auriga. However, even the largest star is not visible to the naked eye until the sun has declined approximately nine degrees below the horizon. At the North Pole, the sun disappears a little after the time of the autumn equinox but does not reach a declension of nine degrees until October 16, a little more than three weeks later. During that intervening period neither the sun nor any star is visible. The same is true during the period immediately prior to the spring equinox when the sun is not visible but is less than nine degrees below the horizon. Thus, for more than six weeks each year neither the sun nor any star is visible. During those periods, days cannot be demarcated by means of the circular rotation of stars in the overhead sky. Even if Venus and Jupiter are used for this purpose, there are four weeks in the year during the polar twilight in which those planets are not visible. I am indebted to Mr. Joe Rao of the Hayden Planetarium for making this information available to me.</i>
  Adoption of that thesis serves to establish the "day," i.e., the twenty-four hour period, on which <i>Shabbat</i> occurs but provides no method for determining when <i>Shabbat</i> begins or when it concludes. Nor does it provide a means by which one can determine the proper time for recitation of the <i>Shema</i> or the several daily prayers. Without citing evidence or precedent for his view, <i>Tiferet Yisra'el</i> opines that the traveler should adopt the clock of "the place from which he departed" (<i>makom she-yaza mesham</i>) in determining the beginning and end of each day and the various divisions thereof.14<i class="footnote">In accordance with his view cited <i>supra</i>, note 13, R. Jehoseph Schwartz, <i>Teshuvot Divrei Yosef</i>, no. 8, and <i>idem, Derekh Mevo ha-Shemesh</i>, p. 62a, asserts that the twenty-four hour day should be divided into two equal parts yielding a twelve-hour “day” and a twelve-hour “night.” Cf., however, R. Moshe Sternbuch, <i>Mo‘adim u-Zemanim</i>, II, no. 155, cited <i>supra</i>, note 13.<i>Rav Pe‘alim</i>, II, <i>Sod Yesharim</i>, no. 4, follows <i>Divrei Yosef</i> in ruling that in the polar region “day” and “night” are each twelve hours in length “as in places located at the equator.” <i>Rav Pe‘alim</i> implies that day and night begin and end at 6:00 A.M. and 6:00 P.M. as is the case at the equator. Moreover, at the North Pole, all longitudes—and hence all time zones-converge. Hence, adoption of an equatorial clock is impossible. Therefore, to say that day and night begin and end at 6:00 A.M. and 6:00 P.M. does not at all resolve the problem. The crucial issue that remains to be determined is according to which time zone is the clock to be set? Cf., R. David Heber, “When Does One Pray When There Is No Day?” <i>Kashrus Kurrents</i>, Autumn, 2002, p. 16.R. Shlomoh Goren, “Shnei Mikhtavim be-Inyan Shemirat ha-Miẓvot be-Arẓot ha-Ẓefoniyot,” <i>Proceedings of the Associations of Orthodox Jewish Scientists</i>, II (New York, 1969), pp. 1-11, proposes a variant of this position. He advocates adoption of a twenty-four-hour day but argues that the day begins and ends at midnight during the polar summer and at noon during the polar winter. Rabbi Goren develops his thesis on the basis of the observation that, as one approaches the polar area in summer, sunset occurs later and later in the day and sunrise occurs earlier and earlier. He then argues that, if one extrapolates from that pattern and applies that progression in the northernmost areas where there is no sunset and no sunrise, one should conclude that “constructive” sunset and sunrise in that locale occur at midnight. During the polar winter the opposite is true, i.e. sunrise occurs later and later in the morning and sunset occurs earlier and earlier in the afternoon. Hence, where there is no sunrise or sunset, he argues that noon be adopted as the time of “constructive” sunrise and sunset. Rabbi Goren argues that were sunset and sunrise to occur in the polar areas they would occur at midnight during the summer and at noon during the winter and therefore we should regard those times as representative of “constructive” sunset and sunrise.Professor Cyril Domb, in a letter to the editor, <i>Tradition</i>, vol. 37, no: 2 (Summer 2003), p.101, ascribes a somewhat different position to Rabbi Goren. Professor Domb suggests that, in the polar regions, night and day are to be determined on the basis of the proximate areas in which those phenomena can be empirically observed. Accordingly, if night is defined as the “appearance of stars,” the governing locale should be “neighboring places when the sun is below the horizon for a short period of time and might consist of a few minutes.” Actually, as noted earlier, Rabbi Goren’s thesis is somewhat different and involves establishing a “constructive” sunrise and sunset which occur at midnight during the summer and at noon during the winter. Professor Domb’s formulation is, however, a much more cogent <i>alot ha-shaḥar</i> of <i>Tiferet Yisra’el</i>’s position. However, that formulation is cogent only for purposes of establishing the time of sunrise and sunset. In order to determine <i>alot ha-shaḥar</i> and <i>ẓet ha-kokhavim</i> it should be modified in one respect. Instead of determining the beginning of night and day on the basis of “neighboring places when the sun is below the horizon for a short period of time and might consist of a few minutes,” the more logical formulation would require that night and day be determined on the basis of the nearest place in which the phenomenon of <i>ẓet ha-kokhavim</i> as determined by the various opinions of halakhic authorities regarding the angle of the sun’s declension below the horizon, does occur. This variation of <i>Tiferet Yisra’el</i>’s position is, of course, open to the same objection that has been expressed with regard to <i>Tiferet Yisra’el</i>’s own position, <i>viz</i>., there is no logical reason why “day” and “night” in a given locale should be determined by sunrise or sunset in some other area. If, as I believe to be correct, <i>Tiferet Yisra’el</i> recognized that there is no way to determine the passing of days in the polar region and is concerned solely with application of the rabbinic provision regarding a confused traveler lost in the desert, the logically applicable times are those of either the traveler’s port of embarkation or of the closest inhabited area. Alternatively, if there is objective “day” and “night” in the polar regions the only logical criteria are those suggested by <i>Mo‘adim u-Zemanim</i> and <i>Teshuvot Divrei Yosef</i>.</i> There is some ambiguity with regard to <i>Tiferet</i> <i>Yisra'el</i>'s precise meaning: Does "the place from which he departed" connote the locale of the traveler's former residence or his port of embarkation?15<i class="footnote">There are somewhat ambiguous reports to the effect that some Scandinavian communities adopted the time frame of Hamburg in determining the beginning and end of Shabbat and of the various fast days. See R. Shlomoh Goren, “Shnei Mikhtavim,” p. 6 and Sholom Klass, “When Does Shabbos Begin and End in Alaska?” <i>Responsa of Modern Judaism</i>, III (New York, 1965), 46-47. Since there is always some period of dusk in those locales, that convention, as pointed out by both <i>Tiferet Yisra’el</i> and <i>Zekher Simḥah</i>, was clearly an error. However, assuming that during the spring there is only daylight in such communities, their practice seems to be based upon the position of <i>Tiferet Yisra’el</i> with one significant variation: Instead of each individual adopting the clock of his prior place of residence or of his port of embarkation, the clock of the closest Jewish community was adopted. At the time the practice was instituted, Hamburg was probably the closest city with a significant Jewish population and, if not, the individuals who established communities in Scandinavia presumably thought it to be the closest community with a Jewish population. Rabbi Goren suggests that the rabbi who instituted this practice did so because he himself was a native of Hamburg.The individual who advised Col. Ramon to observe time-bound <i>miẓvot</i> in accordance with Houston time presumably relied upon the position of <i>Tiferet Yisra’el</i>. See <i>JTA Daily News Bulletin</i>, July 15, 2002, p. 2 and <i>Jewish Week</i>, July 12, 2002, p. 3. However, since the port of embarkation was Cape Canaveral, Florida time would have been more appropriate than Houston time. The fact that mission control was located in Houston is of no halakhic import. Col. Ramon’s own instinct was to adopt Jerusalem time which, arguably, was his place of residence. See <i>Jewish Chronicle</i>, May 24, 2002, p. 10. See also the opinion of R. Levi Yitzchak Halperin, <i>infra</i>, note 48.</i> A similar position is advanced by R. Pinchas Eliyahu Hurwitz, <i>Sefer ha-Brit</i>, I, <i>ma'amar</i> 4, chapter 11. With regard to a person who finds himself in the polar regions, <i>Sefer ha-Brit</i> declares that "after he counts six times twenty-four hours on the clock he should make Shabbat."16<i class="footnote"><i>Sefer ha-Brit</i> offers the intriguing observation that aggadic references to the time-limited activities ascribed to the Deity or to angels are references to Jerusalem time. Thus, for example, angels sing daily praise of God when it is morning in Jerusalem. <i>Parashat Derakhim, Drush</i>, 23, s.v. <i>od nakdim</i>, also asserts that matters such as the return of the wicked to Gehenna and the tranquility of the river Sambatiyon are determined by Jerusalem time. See also, <i>infra</i>, note 31.</i> <i>Sefer ha-Brit</i> presumably means that the clock to be used for this purpose is one that shows the current time at the port of embarkation.17<i class="footnote">The incongruity of two travelers observing Shabbat at different hours is pointed out in the immediately following discussion. Earlier in the herein cited paragraph, <i>Sefer ha-Brit</i> accepts a similar incongruity with regard to observance of Shabbat in a single locale on two different days by passengers on two ships that cross the halakhic dateline from different directions. Thus it is likely that <i>Sefer ha-Brit</i> similarly assumes that a traveler continues with his prior calculation of clock hours.</i>
  <i>Tiferet Yisra'el</i> himself notes one resultant incongruity: A traveler arriving at the North Pole from England and a traveler arriving from America would both observe <i>Shabbat</i> on the same "day" but at different hours. The European would recite <i>kiddush</i> while the American might legitimately perform all manner of labor; some twenty-four hours later the European would recite <i>havdalah</i> while the American is engaged in the recitation of the <i>Shabbat minḥah</i> service. One can only ponder the situation of children born to an American man who marries a European woman at the North Pole. When does <i>Shabbat</i> begin and end for the children of that marriage? The issue is not one of custom, with regard to which the father's custom prevails, but one of law. There seems to be no reason why, normatively, children should be governed by one parent's clock rather than by the clock of the other parent. Indeed, that situation serves to highlight the underlying problem, <i>viz</i>., why should children be governed by their parents' clock? The time reflected by that clock is neither the time of the child's prior residence nor of the child's port of embarkation. Indeed, by what reason is the traveler himself governed by the clock of his place of embarkation or of previous domicile?
  At least in part because of this incongruity, <i>Tiferet Yisra'el</i> recognizes that infractions of Sabbath prohibitions in the polar area do not occasion statutory punishment. The phraseology employed by <i>Tiferet Yisra'el</i> may be readily understood as implying that <i>Tiferet Yisra'el</i> recognizes that <i>Shabbat</i> observance in the polar area in the manner that he describes is not biblically mandated but is in the form of a rabbinic obligation, presumably similar to that of a person who loses track of time in a desert.18<i class="footnote">See R. Samuel David Siegel, <i>Aḥuzat Sadeh</i> (Baltimore, 5740), p. 108, and <i>Teshuvot Divrei Yaẓiv, Oraḥ Ḥayyim</i>, I, no. 108, sec. 15, who understand <i>Tiferet Yisra’el</i> in this manner. <i>Tiferet Yisra’el</i>’s language is certainly unclear. <i>Tiferet Yisra’el</i> remarks, “In any event it seems to me that, if [the traveler] performed [an act of] labor on that day he is liable to neither capital punishment nor to a sin-offering for he is no better than one who went into a desert and does not know when it is the Sabbath.” The confused traveler is, however, biblically required to refrain from labor on every day that might in fact be <i>Shabbat</i> and, presumably, is liable to bring a sin-offering if he performs a non-life-preserving act on the day that actually is <i>Shabbat</i>. Subsequently, after describing the anomaly of the two travelers arriving from different directions, <i>Tiferet Yisra’el</i> repeats the statement with regard to lack of culpability and concludes “for they are not thus obligated other than rabbinically.” If, as appears from his concluding comment, <i>Tiferet Yisra’el</i> maintains that the obligations with regard to Sabbath observance in the polar area are entirely rabbinic in nature, that position is problematic because, as noted in the previous section, the regulations governing a confused traveler do not serve as evidence supporting the existence of a rabbinic decree of this nature.</i>
  Putting aside the question of how the beginning and end of each day is to be determined as well as the question of whether Sabbath obligations in such areas are binding by virtue of biblical law or rabbinic decree, <i>Tiferet Yisra'el</i>'s basic position, i.e., that the passing of days is to be calculated on the basis of twenty-four hour periods, is accepted, in addition to R. Jacob Emden, by R. Chaim Joseph David Azulai, <i>Maḥazik Berakhah</i> 344:4; <i>Sha'arei Teshuvah, Oraḥ Hayyim</i> 344:1; R. Jehoseph Schwartz, <i>Teshuvot Divrei Yosef</i>, no. 8; <i>Sefer ha-Brit</i>, I, <i>ma'amar</i> 4, chap. 10; <i>Teshuvot Rav Pe'alim</i>, II, <i>Sod Yesharim</i>, no. 4; <i>Kaf ha-Hayyim, Oraḥ Hayyim</i> 344:2; R. Yechiel Michal Tucatzinsky, <i>Bein ha-Shemashot</i> (Jerusalem, 5789), p. 55; R. Yechiel Michal Gold, <i>Me'asef le-Khol ha-Maḥanot, Oraḥ Hayyim</i> 18:25; and R. David Spira, <i>Teshuvot Bnei Ẓion, Kuntres Midot ha-Yom</i>, secs. 21-23; R. Mordecai Winkler, <i>Teshuvot Levushei Mordekhai, Mahadura Tinyana, Oraḥ Hayyim</i>, no. 47; R. Ovadiah Hedaya, <i>Teshuvot Yaskil Avdi</i>, VIII, Oraḥ Hayyim, no. 22, sec. 9:7; R. Chaim Zimmerman, <i>Agan ha-Sohar</i> (New York, 5715), p. 437; and R. Betzalel Stern, <i>Ahalekh be-Amitekha</i> (Jerusalem, 5752), 30:16.
  IV. An Unconsidered View
  <i>Tiferet Yisra'el</i> cites no evidence in support of his view. The phenomenon of the sun's circular movement over the horizon each day is certainly not a demonstration that each twenty-four hour period in which such a revolution takes place constitutes a halakhic day. Quite to the contrary, Scripture records "and it was evening, and it was morning, one day" (Genesis 1:5). Read literally, the day is defined in terms of alternating periods of light and darkness, not in terms of a revolution of the earth upon its axis or of the circuitous movement of the overhead sun. How this might have occurred prior to the creation of the sun on the third day is a matter that has engaged the attention of numerous biblical commentators, most particularly, Rambam and Seforno, Genesis 1:5; Rabbenu Baḥya, Genesis 1:13; Rashbam, Genesis 1:4 and 1:14; R. Isaac Arama, <i>Akeidat Yizḥak, sha'ar shlishi</i>; and Malbim, Genesis 1:5.
  This concept also appears to be reflected in the words of <i>Pesikta Rabbati</i> 15:1. Citing the verse "Who appoints the moon for seasons; the sun knows its going down" (Psalms 104:19), <i>Pesikta Rabbati</i> comments, "Because 'the sun know its going down'—from here [it is derived] that we do not calculate according to the moon unless the sun has set." In context, <i>Pesikta Rabbati</i> declares that even though the nascent moon has been sighted a new month does not begin until the sun sets. The import of that statement would certainly seem to be that a new day can begin only upon the actual setting of the sun.19<i class="footnote">See <i>Naḥalat Ya‘akov</i>, no. 4.</i>
  There is another way of viewing the passing of days at the poles, a method that is simple and obvious in conception but entirely strange in application. As noted earlier, there is strong reason to assume that the halakhic day is demarcated by sunset and sunrise. There is no obvious reason for assuming that a day must be approximately twenty-four hours in duration. If so, it might readily be argued that a day should always be defined as the period that elapses between one sunset and the next sunset, regardless of how many hours have elapsed between those two phenomena. Thus, if at the North Pole a single sunset is followed by six months of darkness and those six months of darkness are followed by six months of daylight culminating in the next sunset, the length of a "day" at the North Pole is equal to a full year. After six such days elapse the following "day" of twelve months duration would be <i>Shabbat</i>.20<i class="footnote">This thesis undoubtedly reflects the view of <i>Ma‘asei ha-Shem, supra</i>, note 12. It is also one of three alternative possibilities suggested by R. Jacob Halprin, <i>Naḥalat Ya‘akov</i> (Padua, 5382), no. 4, who appears to have been the first scholar to advance a suggestion of this nature. A rather similar conclusion is reached by R. Chaim Eleazar Shapiro, <i>Teshuvot Minḥat Elazar</i>, IV, no. 42. For the other possibilities suggested by <i>Naḥalat Ya‘akov</i> see <i>infra</i>, notes 25 and 28. See also sources cited by R. Yisra’el David Harfenes, <i>Yisra’el ve-ha-Zemanim</i>, 2nd ed. (Brooklyn, 5762), I, chap. 21 and R. Yisra’el Taplin, <i>Ta’arikh Yisra’el</i> (Lakewood, 5759), chap. 5, note 14. Cf., <i>ibid</i>., chap. 14, notes 5 and 15.The thesis, as explained herein, differs from that advanced by <i>Minḥat Elazar</i> in that, according to <i>Minḥat Elazar</i>, “days” are calculated in this manner only by a traveler who, as it were, carries his own calendar with him and considers his day to end only upon the occurrence of the next polar sunset. See <i>Ahalekh be-Amitekha</i> 30:16, note 24. Quite apart from the objection that the halakhic concept of time is objective rather than relative, an anomalous situation would result in that travelers arriving several days apart would observe the Sabbath during different years.</i> According to that theory, <i>Shabbat</i> would occur at the North Pole only once in seven years but would last for an entire "sabbatical" year. Calculation of the sequence of those year-long days would begin no later than from the creation of the sun.
  Application of the same theory to other areas in the far north where a summer "day," i.e., the period between one sunset and the next may be, for example, two months in duration, would result in considering that two-month period to be a single day within the seven day cycle of a "week." <i>Shabbat</i> would then be determined by recalculating the sequence of the days of the week by taking the two-month day into consideration as a single day. Those calculations would also have to be refigured from the day of creation. The result would be highly inconvenient to say the least, both because <i>Shabbat</i> would not be observed on the same day as it is observed on the rest of the globe and because observance of <i>Shabbat</i> would fluctuate each year from one day of the week to another.
  It should also be pointed out that adoption of this thesis leads to the result that, according to Rabbenu Tam, <i>Shabbat</i> may not coincide with Saturday even in areas as far south as London. On days that the sun does not decline at least 16.1 degrees below the horizon it is, according to Rabbenu Tam, at least doubtful whether a new day has begun.21<i class="footnote">The doubt is a reflection of the unresolved halakhic question of whether the day begins and ends with sunset or with nightfall, i.e., <i>ẓet ha-kokhavim</i> which, according to Rabbenu Tam, occurs when the sun is 16.1 degrees below the horizon.</i> If a new day has not begun, then the entire period during which the sun does not decline 16.1 degrees is part of a single day22<i class="footnote">Thus, for example, examination of p. 16 of the tables appended to R. Meir Posen’s <i>Or ha-Me’ir</i> (London, 5733), reveals that, according to Rabbenu Tam’s view regarding sunset and nightfall, there is no “night” in London during the six-day period beginning June 3 and ending June 8.Rabbi Posen, <i>Or ha-Me’ir</i>, pp. 318–319, cites a letter addressed to him by R. Yekuti’el Judah Halberstam, the Klausenberger Rebbe, in which the latter advances a novel view to the effect that, according to Rabbenu Tam, in places such as London in which there is no <i>ẓet ha-kokhavim</i>, day and night, and hence the passage of successive days, depend entirely upon sunset and sunrise. That position is developed at length by Rabbi Halberstam in his <i>Divrei Yaẓiv</i>, <i>Oraḥ Ḥayyim</i>, no. 108, secs. 12-17. Rabbi Posen himself, ibid., pp. 317-318, suggests that there is a fundamental theoretical dispute underlying the controversy between Rabbenu Tam and R. Elijah of Vilna with regard to the astronomical phenomena that serve to define sunset and nightfall. R. Elijah of Vilna, asserts <i>Or ha-Me’ir</i>, maintains that there cannot be “nightfall”—and hence a new day—unless there is an absence of illumination. Rabbenu Tam, he asserts, maintains that it is simply the disappearance and reappearance of the sun that determines the advent of a new day. Consequently, opines <i>Or ha-Me’ir</i>, according to Rabbenu Tam, there is no “night” in locales such as London during some days of the year and hence no obligation with regard to <i>miẓvot</i> that can be performed only at night, but the calendar remains unaffected, at least in such places. Cf., <i>Aḥuzat Sadeh</i>, pp. 108-109.</i> and, accordingly, the ensuing <i>Shabbat</i>, and all future Sabbath days, must be calculated on the basis of that consideration.23<i class="footnote">See <i>Teshuvot Divrei Yaẓiv, Oraḥ Ḥayyim</i>, I, no. 108, sec. 15.</i>
  Fortuitously, a thesis of this nature24<i class="footnote">R. Meir Posen, <i>Or ha-Me’ir</i>, pp. 319-324, espouses a somewhat similar but yet different position. Rabbi Posen maintains that the day of the week remains constant until the sun sets. However, when the sun does set, the next day of the week and the date is the same in such areas as on the rest of the globe. He reasons that the date as well as determination of the particular day of the week is determined by the sun’s position <i>vis-a-vis</i> planet Earth and hence is constant throughout the globe. However, for inhabitants of Earth, the day does not draw to a close until sunset. Accordingly, if the first day of the polar spring occurs on <i>Shabbat</i> the entire spring and summer must be observed as <i>Shabbat</i>; similarly, if the first day of the polar spring occurs on a weekday there in no <i>Shabbat</i> at all during the polar spring. It would, however, seem to this writer that, according to Rabbi Posen’s thesis, the determining factor would logically be the day on which the polar autumn begins, i.e., if the sun sets in the fall on a Friday, the entire ensuing twelve months would be <i>Shabbat</i> whereas if the sun sets for the polar autumn on a weekday there would be no <i>Shabbat</i> for an entire twelve-month period. A view similar to that of Rabbi Posen is entertained by <i>Teshuvot Minḥat Elazar</i>, IV, no. 42.</i> has not been espoused by any scholar.25<i class="footnote"><i>Naḥalat Ya‘akov</i>, no. 4, does offer, as one of three alternative possibilities, the suggestion that <i>Shabbat</i> must be observed at the North Pole for a period of twelve months. A bare intimation of such a thesis does appear in the writings of an eminent eighteenth-century Moroccan authority, R. Raphael Mekanes, <i>Teshuvot Mishpatim Yesharim</i>, I, no. 76. In a few cryptic words, <i>Mishpatim Yesharim</i> questions whether one arriving in the polar region on <i>Shabbat</i> should observe the Sabbath for a period of six months. However, he fails to analyze the implications of that position, including the fact that the full Sabbath “day” should be twelve months rather than six months or the question of how to determine which twelve-month “day” is the Sabbath, Indeed, <i>Mishpatim Yesharim</i> may have intended to espouse a view consistent with that of <i>Or ha-Me’ir</i> and <i>Teshuvot Minḥat Elazar</i> cited <i>supra</i>, note 24. R. David Luria, <i>Bi’ur Radal, Pirkei de-Rabbi Eli‘ezer</i>, chapter 52, note 1, also seems to have entertained the feasibility of the thesis herein described. See also <i>idem</i>, <i>Peirush Radal, Pesikta Rabbati</i> 23:1, note 6. Cf., however, <i>Teshuvot Divrei Yosef</i>, no. 8, who dismisses such a view as preposterous.</i> However, an unnamed interlocutor whose comments are recorded by R. Jehoseph Schwartz, <i>Teshuvot Divrei Yosef</i> (Jerusalem, 5622), no. 8, did formulate such a view. That scholar adduces a statement found in <i>Pirkei de-Rabbi Eli'ezer</i>, chapter 52, in support of this view. <i>Pirkei de-Rabbi Eli'ezer</i>, commenting upon the phenomenon described in Joshua 10:13, maintains that Joshua caused the sun to remain in a fixed position in the sky for a period of twenty-four hours and that the miracle was performed by Joshua on a Friday. That entire period was regarded as a weekday rather than as <i>Shabbat</i>, thereby enabling completion of the military engagement without desecration of the Sabbath. The anonymous scholar is reported to have cited those comments as suggestive of the notion that a day may be of indeterminate length.
  <i>Divrei Yosef</i> dismisses this argument by citing the full comment of <i>Pirkei de-Rabbi Eli'ezer</i> which indicates that Joshua interfered not only with the motion of the sun but also with the motion of the other luminaries, i.e., the moon and the stars. That statement, asserts <i>Divrei Yosef</i>, demonstrates that not only the sun but all the celestial bodies remained suspended in the sky. Hence, in effect, Joshua caused time to be suspended. That phenomenon, declares <i>Divrei Yosef</i>, is quite different from the purely local phenomenon that occurs at the North Pole.
  The anonymous interlocutor is further quoted as rejecting his own proposed thesis because the Palestinian Talmud, <i>Kelayim</i> 9:13 and <i>Ketubot</i> 12:3, reports that a similar phenomenon occurred on the Friday on which the funeral of R. Judah the Prince took place. However, the Palestinian Talmud reports that on that occasion the participants in the funeral considered themselves to have desecrated the Sabbath. The latter statement, he argues, establishes that the demarcation of successive days does not necessarily depend upon the declension of the sun below the horizon.26<i class="footnote">Cf., however, the discussion of the import of the narrative recorded in the Palestinian Talmud <i>infra</i>, note 27, as well as notes 32-33 and accompanying text.</i>
  The reason why such a thesis does not merit consideration is not immediately evident, particularly if there is no intrinsic reason why a day must be approximately twenty-four hours in duration.27<i class="footnote">The Gemara, <i>Shabbat</i> 118b, speaks of commencing observance of <i>Shabbat</i> at an early hour in Tiberias and concluding its observance at a later hour in Sepphoris, i.e., observing <i>Shabbat</i> for longer than a twenty-four hour period. The principle that both the beginning and end of <i>Shabbat</i> is determined by local criteria would yield the result that a person traveling from Sepphoris to Tiberias would observe <i>Shabbat</i> for less than twenty-four hours.R. Chaim Avraham Gatinyo, <i>Tirat Kesef</i> (Salonica, 5496), p. 5b, endeavors to demonstrate that <i>Shabbat</i> must be observed for a minimum period of twenty-four hours on the basis of the narrative recorded by the Palestinian Talmud, <i>Kelayim</i> 9:3 and <i>Ketubot</i> 12:3. R. Judah the Prince died on a Friday. The sun did not set that evening until much later than its usual time and hence observance of the <i>Shabbat</i> did not begin until that late hour. That miraculous phenomenon occurred in order that every participant in the funeral, including those who had traveled from other cities, might have sufficient time to return home and “prepare a barrel of water and kindle the lamp” before the advent of the Sabbath. Shortly after the sun finally set, the crowing of the rooster was heard. Experiencing daybreak so quickly after nightfall, people realized that they would not be observing a full twenty-four hour period as <i>Shabbat</i>. The populace feared “lest they had desecrated the Sabbath” during the period of time that the sun’s movement was arrested. Thereupon, a heavenly voice proclaimed that all those who had participated in the funeral of R. Judah were assured a portion in the world to come. Excluded from that promise was one individual, a laundryman who had not participated in the funeral. <i>Shitah Mekubbeẓet, Ketubot</i> 103b, cites a certain Rabbenu Kalonymus who explains that the populace had actually transgressed <i>Shabbat</i> prohibitions because the <i>Shabbat</i> had indeed begun at its proper time but people inadvertently failed to commence observance of the <i>Shabbat</i> in a timely manner because the sun was still high in the sky. Nevertheless, they were forgiven because of their participation in R. Judah’s funeral. The laundryman also failed to begin his observance of the Sabbath at the proper time for the same reason but because he was remiss in not participating in the funeral he was not forgiven. The laundryman was forgiven only subsequently when, out of great anguish, he hurled himself from a roof and died.<i>Rav Pe‘alim</i>, II, <i>Sod Yesharim</i>, no. 4, disputes <i>Tirat Kesef</i>’s understanding of this narrative. <i>Rav Pe‘alim</i> asserts that there is no evidence that the <i>Shabbat</i> that occurred on the morrow of R. Judah’s death was less than twenty-four hours in duration. At first, people were confused, contends <i>Rav Pe‘alim</i>, because of the premature crowing of the rooster. The rooster’s circadian clock, he asserts, was attuned to a twenty-four hour cycle. Moreover, contends <i>Rav Pe‘alim</i>, there is no indication that the populace acted in an inappropriate manner (indeed, the heavenly voice may be construed as having endorsed their behavior) but only that they were afraid lest they had acted incorrectly. [Rabbi Tucatzinsky, <i>Bein ha-Shemashot</i>, p. 55, suggests that the populace acted correctly because the sun had not set. However, people were confused because they feared that the sun had indeed set and the illumination they perceived emanated from a supernatural source. Cf., <i>infra</i>, note 34.] Furthermore, argues <i>Rav Pe‘alim</i>, the Sabbath is to be observed on the seventh day “in all your habitations” (Leviticus 23:3), i.e., the occurrence of <i>Shabbat</i> is determined both at the beginning and end of the day by the setting of the sun in the locale in which a person finds himself, regardless of the length of the intervening day. R. Ephraim Zalman Margolies, <i>Teshuvot Bet Efrayim, Yoreh De‘ah</i>, no. 76, similarly disagrees with Rabbenu Kalonymus in asserting that <i>Shabbat</i> is determined solely by the setting of the sun.<i>Rav Pe‘alim</i> further remarks that, having properly ushered in the Sabbath at sunset, it would be ludicrous to observe <i>Shabbat</i> for a portion of the following day in order to achieve a complement of a full twenty-four hours. See also R. Elijah Isaac Shemesh, <i>Yedei Eliyahu</i> (Jerusalem, 5790), no. 44. Thus, <i>Rav Pe‘alim</i> declares that a person who is able to travel long distances on <i>Shabbat</i> by employing a Divine Name or in some other miraculous manner may cease his observance of <i>Shabbat</i> immediately at nightfall in his new locale even though he has observed <i>Shabbat</i> for much less than twenty-four hours. That is also the position of a host of other authorities including R. Yechiel Michal Tucatzinsky, <i>Bein ha-Shemashot</i>, p. 55; <i>Teshuvot Minḥat Elazar</i>, IV, no. 42; <i>Teshuvot Bnei Ẓion</i>, III, <i>Kuntres Midat ha-Yom</i>, secs. 23-24; R. Alter Saul Pfeffer, <i>Teshuvot Avnei Zikaron</i>, II, no. 87, sec. 2; and R. Ben-Zion Abba Sha’ul, <i>Or leẒion</i>, I, <i>Oraḥ Ḥayyim</i>, no. 14. Cf., however, <i>infra</i>, note 60, as well as notes 65-66 and accompanying text.</i> The only reason that suggests itself to this writer is that, although the beginning and end of a day and intermediate divisions of the day certainly depend upon local sundown and sunrise, the identity of any given day is the same throughout the globe with the minor exception presented by the necessary adjustment for the dateline. The dateline phenomenon is not an exception to the basic principle because that phenomenon is the logical result of the movement of the sun as perceived in all places throughout the globe except for the polar areas. The notion that in one locale it may be <i>Shabbat</i> while in another it may be some time on Friday and in another locale it may be some time on Sunday is readily understood. But a thesis that will posit that <i>Shabbat</i> can occur in some geographic area on a day that is, for example, Wednesday elsewhere is incompatible with the very nature of a calendrical system.
  V. An Alternative View
  There is however another possibility that, to this writer, seems to be the most cogent way of viewing "time" in the polar regions. It may be suggested that in the absence of the halakhic criteria of sunset and sunrise there is no halakhic day and hence no halakhic time. Locales in which that is the case have no time because they "transcend" time. The result would be that obligations with regard to time-bound <i>mizvot</i> are simply non-existent in such places.28<i class="footnote">This possibility is entertained by <i>Teshuvot Divrei Yaẓiv</i>, no. 118, sec. 11 and is also one of the three alternative possibilities set forth by <i>Naḥalat Ya‘akov</i>, no. 4. <i>Naḥalat Ya‘akov</i> adds the comment that “It is revealed and known to [Him who possesses] perfect knowledge and thus it is recorded before Him on high that the children of Israel who observe [the] commandments[s] will not have a course or path to [the Pole] from now and for evermore; rather, He will give them habitation among all the nations where He will lead them.” See also R. David Yitzchaki of the Kollel Ḥazon Ish of Bnei Brak in a letter to the editor published in <i>Or Yisra’el</i>, No. 31 (Adar Sheni 5763), p. 238. It would then appear to follow that a <i>niddah</i> finding herself in such an area would not be able to count the prescribed number of days in order to become able to immerse herself in a <i>mikveh</i>. Cf., <i>Divrei Yaẓiv</i>, no. 118, sec. 15. The same consideration would apply, for example, to the circumcision of a child since circumcision cannot be performed until the eighth day following birth. Cf., R. Yitzchaki, <i>Or Yisra’el</i>, no. 131, p. 238.It should be noted that if <i>Tiferet Yisra’el</i> is understood as giving expression to the determination of a rabbinic obligation (see <i>supra</i>, note 18), the thesis here presented, since it is designed to explain the biblical notion of time and of <i>miẓvot</i> consequent thereupon, is not in contradiction to the position of <i>Tiferet Yisra’el</i>.More significantly, if, as the authorities cited <i>supra</i>, note 12, apparently maintain, <i>Tiferet Yisra’el</i>’s view is based upon acceptance of the principle that successive days are demarcated on the basis of the rotation of the sun or celestial bodies in the overhead sky, it follows that <i>Tiferet Yisra’el</i>’s thesis is not applicable in outer space. Thus, the herein formulated view that there are regions that transcend time may be valid even according to <i>Tiferet Yisra’el</i> with regard to space beyond the orbit of earth.</i>
  Thus, since a day is defined as the period between sunset and the following sunset, allowing for variation in its beginning and end, the day of the week is the same throughout the globe. Since sunset and sunrise do not occur in approximately twenty-four hour sequences in the polar areas, any particular polar day could not be identified as the same day of the week recognized in other locales. Accordingly, there is no "day" at the North Pole and hence there are no festivals. Since there is no day to be divided into hours, there is no obligation with regard to reciting the <i>Shema</i> or any of the time-bound prayers.29<i class="footnote">Cf., however, <i>infra</i>, note 42.</i>
  This is true also in northern areas below the North Pole in which the summer day and the summer night are weeks or even months in duration. But this is true only during those periods of prolonged daylight and prolonged darkness. During the periods of the year in which there is sunrise and sunset, regardless of the brevity of the day or night, time-bound <i>mizvot</i> are fully binding and the day of the week as well as the date in those areas is identical to the day and the date everywhere else on the globe.
  In order to appreciate this concept fully it is helpful to think of time as a "place." A person in outer space or a person near the polar region in which a single day extends for a period much longer than twenty-four hours "transcends" time and hence is "outside" the "place" called <i>Shabbat</i>. When the same traveler returns to earth, when the person in the polar area travels out of that region, or when summer or winter becomes fall or spring in the polar region, the individual has in effect "reentered" the place called "time." He reenters an objectively defined time that is identical for him and for all other individuals. The term "sunset" is used to denote the end of the day. Whether the day ends at sunset or at <i>zet ha-kokhavim</i>, i.e., when it is actually night as evidenced by the appearance of stars is, of course, a matter of halakhic doubt. Hence, there will be locales in which obligations with regard to observance of time-bound <i>mizvot</i> will be a matter of parallel doubt, i.e., in areas in which, on some days during the year, the sun sets but does not decline below the horizon sufficiently for it actually to become night, the very existence of time is doubtful and hence the obligation with regard to time-bound <i>mizvot</i> becomes a matter of doubt.
  According to this thesis, the days that elapse elsewhere on earth during the periods of prolonged polar daylight and darkness which are not halakhically recognized as "days" have no effect on subsequent calculation of time in the polar areas. Similarly, the calendrical system is unaffected in those areas during other periods of the year. There is no "time" in those areas either the entire year or for portions of the year, depending upon proximity to the pole, because those areas are <i>le-ma'alah min hazman</i>, i.e., in those areas time is transcended. But the reappearance of the phenomena of sunrise and sunset in those areas signifies a return to the realm of time. Moreover, those locales return to the spot on the continuum of time that is shared by the entire globe.30<i class="footnote">A similar concept is reflected in Ritva’s analysis of an incident recorded by the Gemara, <i>Ḥullin</i> 101b. The Gemara reports that during a period of religious persecution and forced apostasy word was sent from the Land of Israel to Babylonia to the effect that <i>Yom Kippur</i> should not be properly observed. Ritva expresses puzzlement at the abrogation of <i>Yom Kippur</i> since in face of malevolent persecution designed to achieve renunciation of the tenets of Judaism a Jew is required to suffer martyrdom rather than submit. Ritva resolves that problem in asserting that the <i>Bet Din</i> in the Land of Israel declined to sanctify the New Moon of Tishri. Since the month of Tishri had not been sanctified the tenth day of the month could not be <i>Yom Kippur</i>. For an explanation of why the New Moon did not automatically become sanctified on the thirty-first day see R. Meir Dan Plocki, <i>Klei Ḥemdah, Parashat Bo</i>, sec. 1. Cf., however, the analysis of Ritva presented by R. Reuven Katz, <i>Degel Re’uven</i>, II, no. 13.Failure to sanctify the New Moon of Tishri that year was clearly an <i>ad hoc</i> measure. Subsequently, when the danger subsided, the <i>Bet Din</i> resumed the normal practice of sanctification. There is, however, not the slightest hint in any source that the sequence of months resumed with the sanctification of the first of the resumed months as the month of Tishri. Quite apparently, sanctification resumed as if there had been no gap in the calendrical sequence of months.It must thus be inferred that objective time and sanctified time are not independent of one another, i.e., days and months may elapse even if they are not sanctified so that when sanctification resumes it must resume with the sanctification of time in its objective nature rather than resuming where the last period of sanctified time ended. Similarly, a person who “exits” time by entering either the polar regions or outer space, in effect, transcends time but even for that individual time does not halt. Hence when he reenters time-bound areas he returns, not to the point at which he escaped time, but to objective time and, accordingly, he must conduct himself as if he had not transcended time.</i>
  Metaphorically, the matter can be compared to a group of people seated together on a carousel moving round and round in a circle. If one of the group gets off the moving carousel he is no longer in motion or in any way subject to motion. Nevertheless, the person exiting the carousel can observe his companions and, although he is a spectator who "transcends" their motion, he can be fully cognizant of their continued circular movement. If he stands outside and waits while the carousel completes one or more "revolutions" or circuits and then rejoins his companions at the same spot on the carousel at which he left them on an earlier circuit he will continue to ride with them in precisely the same spot as he would have ridden had he never exited from the carousel.
  It is also possible that time may not only be transcended by a space traveler or in the polar regions but that, at times, all of planet Earth may transcend time. The import of that notion is that time, once created, enjoys an independent ontological existence even when time is nowhere manifest. Time, under such circumstances, would continue to march and Earth, when it returns from its state of transcendence, would return to the spot on the continuum of time that it would have occupied had it not temporarily transcended time.31<i class="footnote">The elusiveness of the nature of time has been recognized at least since the time of Zeno. Zeno formulated a number of classic paradoxes designed to negate the view that an extended line or time interval might be composed of unextended points or instants. See Aristotle, <i>Physics</i> 231a-231b and <i>De Generatione et Corruptione</i> 316-317. Later, Augustine, <i>Confessions</i>, Book XI, chaps. 14-28, struggling with the mysterious nature of time, acknowledged that, although he had an intuitive grasp of the concept of time, he could neither formulate an adequate definition of time nor explain how it can be measured.The notion employed herein in developing a halakhic notion of time is consistent with the concept of time espoused by philosophers such as Descartes and scientists such as Newton. In his <i>Principles of Philosophy</i>, Part I, sec. 57, Descartes distinguishes time from duration taken in general and describes time as “a mode of thinking this duration” or as a common measure of different durations and in sec. 21 he says of time that “its parts do not depend one upon the other and never coexist.” Elsewhere, in a letter to a contemporary, Descartes declares that “all the moments of [the world’s] duration are the one from the other.” See Charles Adam and Paul Tannery, <i>Oeuvres des Descartes</i>, V (Paris, 1903), 53. Thus, for Descartes, all moments of time are discrete and independent. At the same time, in Meditation III of his <i>Meditations on Philosophy</i>, Descartes recognizes time as having ontological existence independent of other entities.In formulating a proof for the existence of God based upon the notion of constant conservation or continuous creation, Descartes assumes what can probably best be categorized as a quantum theory of time. According to Descartes, time is discontinuous and consists of a series of discrete time-quanta arranged in a continuum. The universe’s existence is circumscribed by those quanta and the universe cannot be transposed from one such quantum to another; rather, the universe must be recreated anew in each moment of time. Thus, the universe could not exist from one moment to the next save for a renewed act of creation on the part of the Deity. Newton regarded time as an infinite number of moments within which God created the material universe. Adhering to an absolute theory of time, he spoke of an “absolute, true and mathematical time” which “of itself and from its own nature flows equally without relation to anything external.” See J. J. C. Smart, “Time,” <i>Encyclopedia of Philosophy</i>, ed. Paul Edwards (New York, 1967), VIII, 129. Leibnitz, to the contrary, regarded the notion of absolute time as composed of an infinite number of absolutes to be a figment of the imagination and argued that space and time are merely sets of relations between things that are “in” space and time. See <i>The Leibnitz-Clarke Correspondence</i>, ed. H. G. Alexander (Manchester, 1956), p. 15 and <i>The Philosophical Works of Leibnitz</i>, ed. G. M. Duncan (New Haven, 1890), p. 271. Einstein’s theory of general relativity postulates not only that time and space were created simultaneously with everything else in the universe but that they are elastic. See <i>Encyclopedia of Philosophy</i>, VIII, 29. As Einstein once said, “Space and time are modes by which we think, not conditions under which we live,” by which he meant that both space and time are observer-dependent. See “Time in Modern Physics,” <i>Encyclopedia of Time</i> (New York, 1994), p. 465. More significant to this discussion, among Jewish philosophers, Rambam, <i>Guide of the Perplexed</i>, Book II, chap. 13, and Ralbag, <i>Wars of the Lord</i>, Sixth Treatise, part 1, chap. 10, regard time as dependent upon motion. Rambam speaks of time as an accident (using the term in its Aristotelian sense) of motion and of motion as an accident of matter. Thus, Rambam, regards time as an accident of an accident and hence as devoid of independent ontological reality. See also the notion of time developed by R. Ḥasdai Crescas, <i>Or ha-Shem</i>, First Treatise, <i>klal bet</i>, chap. 11.The foregoing presents no compelling reason to reject the halakhic analysis of time presented herein. Halakhah establishes its own conceptual categories. Arguably, those categories reflect man’s perception of the operation of natural phenomena rather than the objective reality of the physical universe. As a halakhic category, time, regardless of its true nature, may be described as an ontological entity. Indeed, the theoretical halakhic construct and the concommitant halakhic notion of geographic and cosmic areas that “transcend” time may be harnessed to give expression to the philosophical notion of a Deity who transcends time. In turn, the need for such a philosophical model to explain the transcendent nature of God may be associated with the rationale underlying the halakhic construct.</i>
  Strange as that thesis may appear, it serves, in this writer's opinion, to explain two difficult aggadic statements32<i class="footnote">Another source, <i>Midrash Tanḥuma, Parashat Ki Tissa</i>, sec. 36, cites Daniel 2:22 and Psalms 139:12 as establishing that there is no darkness in heaven and proceeds to discuss how Moses, during the forty days in which God transmitted the Torah to him, could tell when it was day and when it was night. <i>Teshuvot Rav Pe‘alim</i>, II, <i>Sod Yesharim</i>, no. 4, cites that discussion in support of his position that the day is determined on the basis of twenty-four hour periods. See, however, the sources cited <i>supra</i>, note 16, who maintain that the references of such nature are to Jerusalem time. Moreover, that discussion may be understood metaphorically whereas the two aggadic statements discussed herein have halakhic ramifications.</i> that have long been a source of puzzlement. Scripture records that in the war against Gibeon undertaken by Joshua the sun stood still in the sky in order to enable the conquest to become complete: "And the sun stood still and the moon stayed until the nation avenged itself of the enemies … and the sun stayed in the middle of the sky and did not hasten to go down for a whole day" (Joshua 10:13). Based upon differing interpretations of that verse, the Gemara, <i>Avodah Zarah</i> 25a, records a dispute with regard to whether that "day," i.e., the hours of daylight, was twenty-four, thirty-six or forty-eight hours in duration. In <i>Avodah Zarah</i> 25a there is no hint that the entire time period described together with the normal period of darkness counted for other than a single calendar day. However, <i>Pirkei de-Rabbi Eli'ezer</i>, chapter 52, adopts the view that the sun shone for thirty-six hours and reports that the battle occurred on Friday "and Joshua saw the anguish of Israel lest they desecrate the Sabbath … and each [of the luminaries] remained stationary for thirty-six hours until the conclusion of the Sabbath."
  <i>Pirkei de-Rabbi Eli'ezer</i> obviously maintains that the additional twenty-four hours of daylight were not "extra-calendrical." Nevertheless, although that twenty-four hour period corresponded to the <i>Shabbat</i> day, Sabbath restrictions were not incumbent upon Jews during that period. When the sun did set, it was at the "conclusion of the Sabbath." It must therefore be concluded that during the twenty-four hour period during which the sun remained in the sky, time was not suspended but was "transcended." Since all of Earth was affected, time was transcended by the entire planet. Moreover, when the sun did set, Earth returned to normal patterns of time and did so as if there had been no interruption in the flow of time.
  In addition, a number of sources, including the Palestinian Talmud, <i>Berakhot</i> 8:6; <i>Bereishit Rabbah</i> 11:2, 12:6 and 82:17; <i>Midrash Tehillim</i> 92:4; and <i>Pesikta Rabbati</i> 23:6, record that there was no period of darkness during the very first Sabbath which came after the six days of creation; rather, there was a period of thirty-six hours of daylight followed by nightfall marking the conclusion of the Sabbath day. Yet that thirty-six hour period included a "day" deemed to be the Sabbath and was followed by a day deemed to be the first day of the following week.33<i class="footnote">R. David Spira, <i>Teshuvot Bnei Ẓion</i>, III, <i>Kuntres Midot ha-Yom</i>, sec. 21, cites these aggadic sources as evidence that the length of a day is determined on the basis of twenty-four clock hours.</i> Again, it may be postulated that terrestrial time was temporarily transcended rather than suspended34<i class="footnote">Cf., however, <i>Bein ha-Shemashot</i>, p. 54. Rabbi Tucatzinsky suggests that even on the first <i>Shabbat</i> the sun set at its normal time and that the illumination that was perceived was provided by the primordial light that was created before the sun. That explanation is supported by a comment found in <i>Bereshit Rabbah</i> 11:1.</i> and that, when normal time patterns based upon alternating periods of light and darkness marked by sunrise and sunset resumed, time continued as if it had not been interrupted.35<i class="footnote">For a discussion of calculation of time during the period of the Deluge when, according to one opinion recorded in the Palestinian Talmud, <i>Pesaḥim</i> 1:1, as well as in <i>Bereshit Rabbah</i> 25:2 and 34:15, the constellations did not move in their orbits, see <i>Siftei Ḥakhamim</i>, Genesis 8:22, <i>Teshuvot Minḥat Elazar</i>, IV, no. 42; R. Jonathan Eibeschutz, <i>Tiferet Yonatan</i>, Genesis 6:18; and <i>Divrei Yaẓiv</i>, no. 108, sec. 6, and no. 109. See also <i>Rav Pe‘alim</i>, II, <i>Sod Yesharim</i>, no. 4, who cites that source in support of the position that days are calculated in terms of twenty-four hour periods.</i>
  It must then be presumed that whenever alternating periods of day-light and darkness of approximately twenty-four hours in length do not occur "time" does not exist, but when such alternating periods are reestablished the reckoning of temporal sequence must take into account the "time" that would have elapsed under normal conditions.
  The notion that a Jew in outer space or in the polar areas is exempt from even some <i>mizvot</i>36<i class="footnote">See R. Ben-Ẓion Firrer, <i>No‘am</i>, XIII, 196-202.</i> has been branded far-fetched or worse by a number of rabbinic writers.37<i class="footnote">See R. Joseph Mashash, <i>Teshuvot Mayim Ḥayyim</i>, no. 111 and R. Menachem Kasher, “Ha-Adam al ha-Yareaḥ,” <i>No‘am</i>, XIII (5730), 51-54.</i> Indeed, one can readily empathize with that reaction and, despite the fact that the alternative theses that have been advanced seem to be at least as far-fetched, this writer would not have the temerity to advance that thesis without at least minimal support. Support for this view is found in the writings of an anonymous scholar quoted by R. Joseph Mashash, <i>Teshuvot Mayim Hayyim, Oraḥ Hayyim</i>, no. 111. Rabbi Mashash reports that he was shown a manuscript authored by an unnamed scholar described as "one of the sages of the generation." That scholar is certain that persons finding themselves in such locales are exempt from Sabbath observance "because the Torah predicated the matter upon days, as it is written 'six days shall you labor and on the seventh you shall rest' (Exodus 34:21). Unless otherwise specified, "days" are composed of twenty-four hours. Since [in the polar regions] there are no days, there is no <i>Shabbat</i> there."38<i class="footnote">See also R. Naphtali Joseph Freund, <i>Teshuvot Pnei Levi</i> (Pietrkow, 5663), <i>Kuntres Noẓer ha-Brit</i>, sec. 46.</i> Although Rabbi Mashash cites this view only to disagree with it, this writer finds the thesis advanced by this anonymous scholar to be entirely cogent and finds it instructive that neither Rabbi Mashash nor any other scholar has advanced evidence to counter that view.
  VI. Orbiting the Earth
  If there is no obligation with regard to time-bound <i>mizvot</i> in the polar regions because a person finding himself in such a locale has transcended time, the same is certainly true for a person on a space journey. If there is no halakhic time in the polar regions, <i>a fortiori</i>, there is no halakhic time in outer space. Outer space is literally "above" time, i.e., an area that is transcendental to time. Thus, although other <i>mizvot</i> are personal in nature and hence, in this writer's opinion, fully binding even in outer space39<i class="footnote">For a discussion of other views regarding a general obligation to observe <i>miẓvot</i> in space see this writer’s “<i>Miẓvot</i> on the Moon,” <i>Contemporary Halakhic Problems</i>, I (New York, 1977), 211-212.</i> time-bound <i>mizvot</i> are not at all binding in celestial regions. Time-bound <i>mizvot</i> can no more be binding "above" or "outside" time than can <i>mizvot</i> contingent upon the sanctity of the land of Israel be biblically binding outside the confines of that country.
  That, however, is not the situation of the Jewish astronaut circumnavigating the planet in earth orbit. <i>Sefer ha-Brit</i>, cited by J. D. Eisenstein, <i>Ozar Yisra'el</i> (New York, 1952), V, 112, poses an intriguing question: If, upon conclusion of <i>Shabbat</i>, a person ascends to the sky in a "flying balloon" and there finds the sky to be illuminated, may he engage in forbidden acts of labor? The answer would appear to be that, despite the fact that this dirigible or airplane traveler observes a sun that has not yet set, i.e., a sun that is visible to him as he looks across his horizon, he is in no way bound by Sabbath restrictions.
  The basic principle is that for all halakhic purposes time is calculated at ground level. The Gemara, <i>Shabbat</i> 118b, reports that R. Jose exclaimed, "May my lot be with those who inaugurate the <i>Shabbat</i> in Tiberias and with those who end the <i>Shabbat</i> in Sepphoris (Zippori)." Reflected in the words of R. Jose is the notion that <i>Shabbat</i> begins earlier in Tiberias than it does in Sepphoris and consequently ends in Sepphoris later than in Tiberias.40<i class="footnote">Cf., however, the entirely different interpretation of that exclamation cited by Rabbenu Yonah, <i>Berakhot</i> 53a, s.v. <i>hayah mehalekh</i>.</i> R. Jose followed the "clock" of Tiberias and began observance of the Sabbath earlier than required in the locale in which he found himself and followed the clock of Sepphoris is concluding the Sabbath later than required in the locale in which he found himself. R. Jose was practicing <i>tosefet Shabbat</i>, i.e., he was adding to the duration of his observance of the Sabbath. That practice is praise-worthy and deserving of reward.
  <i>Teshuvot Ri mi-Gash</i>, no. 45, observes that Tiberias and Sepphoris are really in close proximity to one another but that Tiberias is in a valley and Sepphoris is located at the top of a mountain. For that reason there was a significant discrepancy in the time of sunset in those two cities. The higher one's elevation the more one can see of the curvature of the earth with the result that a person at the top of a mountain will not see the declining sun disappear from sight until sometime after the sun is observed to have set below the horizon by a person standing at the base of the mountain. The Gemara's statement indicates that <i>Shabbat</i> begins later in Sepphoris than it does in Tiberias because sunset—and hence time—is determined at ground level. Ground level is not uniform; rather it depends upon the topography of the area and hence may be represented by the bed of the valley or the top of the mountain.41<i class="footnote">Thus, R. Yechiel Michal Tucatzinsky, <i>Bein ha-Shemeshot</i>, pp. 52-55 and 60-61, declares that, in mountainous regions such as Sepphoris, sunset is determined by actual observation and hence occurs later than at the base of the mountain. Cf., however, R. Iser Zalman Meltzer, <i>ibid</i>., p. 158, who takes issue with that position and maintains that sunset is to be determined uniformly on the basis of observation at sea level. See <i>infra</i>, note 45.Rabbi Meltzer notes that Rabbi Tucatzinsky would concede that the elevation of a man-made tower is to be ignored and that visual observation from the vantage point of an airplane is similarly to be discounted but R. Iser Zalman asserts that he fails to appreciate a difference between a man-made structure and a natural geological formation. However, both in <i>Bein ha-Shemashot</i>, p. 53 and in a note appended to p. 55, Rabbi Tucatzinsky explains his view quite clearly. His position is based upon the notion that the Sabbath begins at the time that divine labor ceased at the time of creation; since that labor was effected on earth, the duration of the Sabbath is determined by conditions on “earth” rather than in the sky. See <i>infra</i>, note 44. The mountain is integral to the “earth” and existed at the time of creation; hence, sunset is determined at the mountaintop. Artificial structures such as a tower or skyscraper are ignored because they did not exist at the time of creation. Indeed, Rabbi Tucatzinsky, <i>Bein ha-Shemashot</i>, p. 53, asserts that mountains that did not exist at the time of creation should also be ignored.Nevertheless, Rabbi Tucatzinsky concedes that in a valley such as Tiberias surrounding geological structures are to be viewed in the same manner as one would regard an artificial wall and hence should be ignored. That distinction is supported by the terminology employed by Rashi, <i>Shabbat</i> 118b, who speaks of the sun being “covered” or hidden in Tiberias because of its location in a valley. That terminology lends the impression that the inhabitants of Tiberias commenced observance of <i>Shabbat</i> earlier than was actually necessary. [Cf., however, the terminology employed by Rabbenu Yonah, <i>Berakhot</i> 53a in his citation of Rashi.] Rabbi Meltzer regards Rabbi Tucatzinsky’s position in predicating sunset on the top of a mountain upon visual observation at that site while at the same time discounting the depth of a valley as self-contradictory.It seems to this writer that Rabbi Tucatzinsky’s position is entirely consistent. Assuming that sunset is determined at ground level, it nevertheless seems logical to assume that, if there are mountains on the west which hide the sun before it sinks below the horizon, the effect of such interposed mountains should be ignored since, were the mountains not hiding the sun, the sun would be visible at ground level. Indeed, if one were to circle the mountain, the sun would remain clearly visible on all sides of the mountain. Accordingly, it may be presumed that Rashi speaks of the sun being “covered” or hidden in Tiberias, not because Tiberias is located in a depression, but because it was surrounded by mountains of such nature. Hence, the inhabitants were forced to commence observance of <i>Shabbat</i> earlier than actually necessary because they could not observe the sun as it set. See <i>Bein ha-Shemashot</i>, p. 52.</i> Accordingly, the beginning and the end of the day at the mountain top is different from the beginning and the end of the day in the valley.42<i class="footnote">Cf., however R. Aryeh Leib Lipman, <i>Or ha-Yom</i> (Vilna, 5661), sec. 44, who cites sources indicating that sunrise is determined by the first appearance of the sun as observed from the top of any proximate mountain rather than by its visibility at ground level. Thus, <i>Or ha-Yom</i>’s position is that there is a possibility that sunset is determined for an entire area on the basis of the disappearance of the sun below the horizon when observed from the top of the highest mountain or structure within visual distance. This was also the view of R. Joshua Leib Diskin as recorded by R. Hiya David Spitzer in the latter’s <i>Nivreshet le-Neẓ ha-Ḥammah be-Ẓion</i> (Jerusalem, 5658), I, p. 59b. In the introduction to his <i>Nivreshet le-Neẓ ha-Ḥammah be-Ẓion</i>, Rabbi Spitzer records his efforts to determine the time of sunrise for the city of Jerusalem on the basis of the sun’s appearance at the top of the Mount of Olives. <i>Or ha-Yom</i> then expresses doubt with regard to whether that principle is applicable only to determination of sunrise, which has halakhic significance primarily in the determination of the time of arousal from sleep (<i>sha‘at kimah</i>) for purposes of recitation of the <i>Shema</i>, or if it applies as well to determination of sunset which has calendrical significance. A distinction of that nature is developed at some length by R. Aaron Fried in his commentary on the Mishnah, <i>Ḥalat Aharon</i> (Munkàcz, 5653), <i>Berakhot</i> 1:1, sec. 3. Cf., <i>Teshuvot Minḥat Elazar</i>, I, no. 69. In sec. 55, <i>Or ha-Yom</i> asserts that, if the time of sunset for the entire area is determined from the vantage point of the mountain top, only mountains within visual distance of a person standing at ground level need be considered. See also <i>Nivreshet le-Neẓ ha-Ḥammah</i>, pp. 5a and 58b-59b. <i>Or ha-Yom</i> further asserts that, although the height of a tower planted in the ground may similarly be taken into account, sunset is in no way contingent upon visibility of the sun to a bird flying in the sky. Assuredly, <i>Or ha-Yom</i> would likewise ignore the sun’s visibility as observed from an airplane.R. Moshe Sternbuch, <i>Mo‘adim u-Zemanim</i>, II, no. 155, cites the comment of Rashi, <i>Shabbat</i> 118b, that speaks of the sun being “covered” or hidden in Tiberias because of its location in a valley and notes the implication that the inhabitants of Tiberias commenced observance of <i>Shabbat</i> earlier than was actually necessary. Accordingly, he advances a position similar to that of <i>Or ha-Yom</i> in asserting that, in a locale in which there is a mountain of medium height in relatively close proximity, sunset for the entire area is determined by observation at the top of the mountain. Cf., however, <i>supra</i>, note 41. See also the comments of R. Shneur Zalman of Liady in the section of his <i>Siddur</i> titled <i>Seder Hakhnasat Shabbat</i>, reprinted in <i>Shulḥan Arukh ha-Rav</i> (Brooklyn, 5724), II, 414, which lend themselves to a similar interpretation. At the same time, Rabbi Sternbuch cites and dismisses the suggestion of <i>Or ha-Yom</i> to the effect that, if there is a skyscraper in the city, sunset may perhaps be determined by observation at the top of the building.Assuming that sunset is determined at ground level, it nevertheless seems logical to conclude that, if there are mountains on the west which hide the sun before it sinks below the horizon, that phenomenon would be ignored since, were the mountains not hiding the sun, the sun would be visible at ground level. Indeed, if one were to circle the mountain, the sun would remain clearly visible at ground level on all sides of the mountain. Nevertheless, Rabbi Sternbuch, <i>loc. cit</i>., cites R. Joshua Leib Diskin, as recorded in <i>Nivreshet le-Neẓ ha-Ḥammah</i>, as maintaining that sunset is determined by the disappearance of the sun even if such disappearance is due to the interposition of a mountain. Actually, <i>Nivreshet le-Neẓ ha-Ḥammah</i>, p. 59b, reports that Rabbi Diskin declined to rule with regard to the question of sunset as it affects observance of <i>Shabbat</i>. Curiously and inexplicably, Rabbi Sternbuch declares that R. Joshua Leib Diskin’s view should be heeded if the mountain to the west is only of moderate height but at the same time asserts that sunset in the entire area is determined by observation at the top of a mountain of moderate height located to the east. That position reflects an inconsistency since, if sunset is determined by observation at the top of the mountain, there should be no difference between situations in which the mountain is located in the east and situations in which the mountain is located in the west. A mountain on the west hides the sun only from someone standing at the base of the mountain; the sun is not at all hidden when observed from the peak of the mountain located in the west.</i>
  But <i>Shabbat</i> for a person in a tower or on the roof of a tall building does not begin later than it does for a person standing in the street.43<i class="footnote">Cf., <i>supra</i>, notes 41 and 42. Intuitively, it seems certain that a gargantuan figure (e.g., Og, king of Bashan, whose proportions, as described in the Midrash, were phenomenal), would not commence observance of <i>Shabbat</i> later than an average earthling standing next to him simply because the former’s head is high enough above the ground to see the sun even as it sinks below the curvature of the horizon.To this writer, the distinction between a tall building and a mountain seems to be predicated upon the halakhic notion that the base line is ground level and the domain established at ground level extends <i>ad coelum</i>. The height of attached structures and, <i>a fortiori</i>, the elevation of unattached entities is ignored because, although such entities constitute a different domain for purposes of <i>Shabbat</i> regulations, time is determined entirely by observation of the sun at the earth’s surface. This thesis yields the further conclusion that the times of sunrise and sunset at the top of a mountain are determined on the basis of observation of the sun at that site rather than at the base of the mountain only if the angle of ascent is less than 24.624°. The Gemara, <i>Shabbat</i> 100a, declares that a mound in a public thoroughfare that rises ten <i>tefaḥim</i> above ground level within an ascending distance of four <i>amot</i> (i.e., twenty-four <i>tefaḥim</i>, since each <i>amah</i> equals six <i>tefaḥim</i>) is regarded as an independent domain. See Mishnah Berurah 345:5. The angle of elevation of a right triangle having a height of ten and a hypotenuse of twenty-four is 24.624°. Thus, even natural topography rising at an angle steeper than 24.624° would constitute an independent domain and be ignored for purposes of establishing the time of sunrise and sunset. Mountains generally rise at an angle much gentler than 24° and hence the entire mountainside is regarded as ground level for purposes of establishing the beginning and the end of the day on the basis of actual visual observance of the sun by a person standing on the mountain. At the same time, early darkness at the bottom of a deep pit is ignored because the angle of the walls of the pit are much steeper.</i> Sunset is determined by observation at ground level but the time established in that manner is normative <i>ad coelum</i>.44<i class="footnote">Cf., however, <i>Bein ha-Shemashot</i>, p. 55, where Rabbi Tucatzinsky expresses doubt with regard to whether sunset at the top of a tall tower or in an airplane “so high that the sun is visible all night” is determined by the individual’s own visual observation or whether it is sunset at ground level that governs. Rabbi Tucatzinsky does not predicate the latter possibility upon a simple <i>ad coelum</i> principle but upon the consideration that, at the time of creation, cessation from labor occurred on the ground rather than in the atmosphere. Therefore, he reasons, the commandment requiring rest on the Sabbath is to be fulfilled in accordance with conditions on the ground rather than in the sky.</i> Thus, R. Moshe Feinstein, <i>Iggerot Mosheh, Oraḥ Hayyim</i>, III, no. 96, s.v. <i>u-le-inyan</i>, states unequivocally that an airplane traveler must determine the time for prayer on the basis of sunrise and sunset as observed at ground level.45<i class="footnote">Cf., the glosses of R. Iser Zalman Meltzer appended to R. Yechiel Michal Tucatzinsky’s <i>Bein ha-Shemashot</i>, p. 158, in which Rabbi Meltzer insists that sunset is determined by the declension of the sun below sea level rather than at ground level. See also <i>Mo‘adim u-Zemanim</i>, II, no. 154. According to Rabbi Meltzer, the inhabitants of the mountainous region of Sepphoris prolonged the Sabbath at its conclusion more than was actually necessary just as the inhabitants of Tiberius conducted themselves at its commencement. In both cities, sunset might have been calculated on the basis of sea level had it been empirically possible to do so. As noted <i>supra</i>, note 41, Rashi, <i>Shabbat</i> 118b, seems to contradict that position.</i> Hence if it is no longer <i>Shabbat</i> on the ground it is also no longer <i>Shabbat</i> in a dirigible or airplane flying above that spot.46<i class="footnote">A similar view was earlier expressed by R. Joseph Leib Sofer, <i>Lekutei Sofer al Taryag Miẓvot</i> (Paks, 5673), <i>miẓvah</i> 31, <i>sug holkhei derakhim</i>. See also R. Yisra’el Taplin, <i>Ta’arikh Yisra’el</i> (Lakewood, 5759), no. 1, note 40, who reports that R. Shlomoh Zalman Auerbach expressed a similar view in the name of R. Iser Zalman Meltzer. Rabbi Auerbach’s source was undoubtedly a statement by Rabbi Meltzer in glosses appended to R. Yechiel Michal Tucatzinsky’s <i>Bein ha-Shemashot</i>, pp. 157-158, in which he states that the height of a mountain and the depth of a valley are to be discounted in determining the times of sunrise and sunset. Rabbi Meltzer makes the same point with regard to a person finding himself at the top of a tower or in an airplane and observes that reason dictates “that it is impossible to say that at one spot it may be <i>Shabbat</i> below and yet a weekday above.”</i> If that is true for an airplane passenger flying 35,000 feet above the ground it should also be true for a person in earth orbit higher in the sky. To be sure, once a person travels significantly beyond that point he is no longer "above" the earth or above a place in which conventional time exists; at that point he "transcends" time. But so long as he is in orbit it seems clear that he is indeed above an identifiable spot on earth and, accordingly, at any given moment time in the spaceship is identical to time at the spot that he is overflying.
  For the Jewish astronaut orbiting earth, the day of the week is the same as it is on earth. But as he orbits earth every ninety minutes he will at one moment find himself over a geographic point where the Sabbath has already concluded but, since he is flying faster than earth's rotation, some minutes later he will find himself overflying a place where it is still Shabbat. That cycle can repeat itself over and over again in the course of a single Shabbat.
  To take an example involving two cities familiar to everyone, an astronaut may find himself over New York at 1:00 P.M. <i>Shabbat</i> afternoon. At that moment it is 8:00 P.M. in Jerusalem. The astronaut will have completed <i>shaḥarit</i> and <i>musaf</i> prayers, will have recited <i>kiddush</i> and eaten the Sabbath meal. Approximately one hour later, traveling east to west and circumventing the globe every ninety minutes, he will be over Jerusalem. In Jerusalem it is 9:00 P.M. while in New York it is 2:00 P.M. Since it is after the conclusion of <i>Shabbat</i> the astronaut will recite <i>havdalah</i>. But approximately one half-hour later the astronaut will again be over New York at 2:30 P.M. New York time.47<i class="footnote">An interesting question would present itself if the astronaut failed to recite <i>minḥah</i> prayers while flying from New York to Jerusalem but did recite <i>havdalah</i> while over Jerusalem. May he recite <i>minḥah</i> upon his return to New York where he “reenters” <i>Shabbat</i>? It seems to this writer that he may not do so for much the same reason that the blessing upon sitting in the <i>sukkah</i> is not recited on <i>Shemini Aẓeret</i>. The stated reason is that, in ordaining blessings, the Sages did not countenance a <i>tartei de-satrei</i>, i.e. prayers that express a contradiction. There is an inherent contradiction between pronouncing the blessing “who has commanded us to sit in the <i>sukkah</i>” and recitation of “this day of <i>Shemini Aẓeret</i>” in <i>shemoneh esreh</i> and <i>kiddush</i>. Thus even in Israel, where there is no rabbinic decree with regard to the <i>sukkah</i> on <i>Shemini Aẓeret</i>, a person who recites the evening service before nightfall is nevertheless prohibited to eat outside the <i>sukkah</i> but may not recite the blessing <i>leishev ba-sukkah</i> because it is contradictory to the <i>shemoneh esreh</i> prayer that he has already recited. Similarly, if the astronaut has already recited <i>havdalah</i>, recitation of the <i>Shabbat minḥah</i> prayer would constitute a contradiction.</i> Since he has flown back into an area in which it is <i>Shabbat</i>, all restrictions upon performing prohibited acts of labor are binding upon him. Those cycles repeat themselves throughout the day and obviously apply not only to New York and Jerusalem, cities that are given only for purposes of illustration, but to all points on the globe.
  The strangeness of the result has led at least one scholar adopt a differing position.48<i class="footnote">In a letter dated 21 Ḥeshvan 5762, published on a website maintained by Yeshivat Kerem be-Yavneh, R. Levi Yitzchak Halperin of the Institute for Science and Halacha (Machon le-Tekhnologia) asserts that the astronaut must follow the rule applicable to a person lost in a wilderness and count six twenty-four hour periods and observe the seventh twenty-four hour cycle as <i>Shabbat</i>. He further opines that, if the astronaut wishes to do so, he may begin those calculations as of the time that he first overflies Israel and then observe the Sabbath each week during the period <i>Shabbat</i> is observed in Israel and disregard the alternating periods of day and night that he experiences. R. Halperin also opines that morning, afternoon and evening prayers be recited every twenty-four hours but only when the astronaut experiences day or night as appropriate to the prayer. That ruling is rather curious since morning and afternoon prayers as well as the <i>Shema</i> must be recited during specific periods of the day, whereas R. Halperin, since he bases his ruling upon the rabbinic edict concerning a person lost in the wilderness, apparently rejects the <i>ad coelum</i> thesis presented herein and assumes that the astronaut does not experience halakhic “time.” See &lt;a href=" See also <i>infra</i>, note 71 and accompanying text.</i> Nevertheless, it seems to this writer that the astronaut may perform acts of labor while overflying areas in which it is already night but is forbidden to perform such acts while overflying areas in which there is yet daylight and that in the course of a single day he will experience multiple alternating periods during which he is permitted to perform such acts and periods during which he is forbidden to do so.
  This result notwithstanding, there is no reason why the astronaut should be required to recite <i>kiddush</i> or to offer any of the statutory prayers more than once during the course of a day.49<i class="footnote">A comparable situation exists in conventional supersonic flight from east to west. A Concord flight might leave London early in the evening and arrive in New York while it is yet day. A passenger who has offered the <i>minḥah</i> prayer at the appropriate time would not be required to recite the prayer a second time upon “reentering” the “previous” day. See R. David Yitzchaki, <i>Or Yisra’el</i>, no. 31, p. 238.</i> The astronaut is, in effect, "leaving" and "reentering" an identifiable day; having discharged the obligation of <i>kiddush</i> or prayer for that day, there is no factor that would generate a new obligation for that day.50<i class="footnote">See R. Yechezkel Roth, <i>Teshuvot Emek ha-Teshuvah</i>, I (Jerusalem, 5735), no. 22, who presciently describes a person who circles the globe multiple times in a single day and remarks that there can be but a single obligation each day with regard to recitation of the <i>Shema</i> and the statutory prayers. Similarly, R. Ben-Zion Abba Sha’ul, <i>Teshuvot Or le-Ẓion</i>, I (Jerusalem, 5747), <i>Oraḥ Ḥayyim</i>, no. 14, requires a traveler crossing the dateline from east to west on Saturday evening to recite the Sabbath prayers again during the ensuing day. Nevertheless, if the same traveler recrosses the latitude the same evening there seems no reason for the traveler to recite the weekday evening prayer a second time. A similar position with regard to repetition of Sabbath and holy day prayers on the second day was earlier advanced by R. David Spira, <i>Teshuvot Bnei Ẓion</i>, I, <i>Oraḥ Ḥayyim</i>, no. 14, sec. 21. <i>Teshuvot Bnei Ẓion</i>, however, expresses doubt with regard to whether, on a festival, pronouncement of the <i>she-heḥeyanu</i> blessing should be repeated.<i>Teshuvot Or le-Ẓion</i> further rules that a traveler who crosses the halakhic dateline on a weekday, e.g., the traveler who crosses from the east on Monday and finds himself west of the dateline where it is Sunday, should, for reasons rooted in kabbalistic considerations, repeat the <i>shemoneh esreh</i> conditionally, i.e., that he should recite the prayer with intention to fulfill the halakhic obligation if such an obligation exists but that, if no such obligation exists, the <i>shemoneh esreh</i> be deemed a voluntary prayer.Interestingly, both <i>Nishmat Shabbat</i>, VII, no. 541 and <i>Teshuvot Emek ha-Teshuvah</i>, I, no. 22 suggest that since the traveler crossing the dateline has become obligated anew to observance of <i>Shabbat</i> he may be required to recite <i>havdalah</i> a second time upon termination of that obligation. <i>Nishmat Shabbat</i> makes no similar suggestion with regard to <i>kiddush. Kiddush</i> is occasioned by the sanctity of the day and the traveler has “reentered” the identical day; <i>havdalah</i>, arguably, is occasioned by renewal permissibility of labor that may occur as it does in such situations, more than once in the course of a single day. Cf., however, R. Chaim Meir Yechiel Shapiro, <i>Koveẓ u-Me’asef Siftei Ḥakhamim</i>, no. 3 (Kislev 5741), p. 23, who assumes as a matter of course that the traveler need not repeat <i>havdalah</i>.</i>
  The foregoing is predicated upon the thesis that <i>Shabbat</i> is determined entirely by the geographic area in which a person find himself and hence if a person could somehow travel from a place where it is <i>Shabbat</i> to a place where it is a weekday he might cease observance of <i>Shabbat</i>51<i class="footnote">Cf., however, <i>Teshuvot Bnei Ẓion</i>, I, no. 14, sec. 29, who suggests that a sea voyager must continue to observe the balance of the day as <i>Shabbat</i> so long as the ship has not docked. Cf. also, R. Menachem Kasher, <i>Kav ha-Ta’arikh ha-Yisra’eli</i> (Jerusalem, 5737), chap. 54, as well as <i>infra</i>, notes 66 and 68 and accompanying text. See also the responsum of R. Koppel Reich published as an addendum to R. Eliezer Deutsch’s <i>Teshuvot Duda’ei ha-Sadeh</i> (Sejny, 5789), s.v. <i>ve-hineh</i>.</i> even though he has not experienced nightfall.52<i class="footnote"><i>Teshuvot Or le-Ẓion</i>, I, <i>Oraḥ Ḥayyim</i>, no. 14, rules that the traveler should recite <i>havdalah</i> immediately but should omit the blessing over fire. <i>Or le-Ẓion</i> presumably means that recitation of that blessing should be delayed until nightfall.</i> Thus, R. Kalman Kahana, <i>Ha-Ish ve-Hazono</i> (Tel Aviv, 5724), p. 100, writes that <i>Hazon Ish</i> declared that a person who, in the course of traveling by ship from east to west, crosses the halakhic dateline sometime during <i>Shabbat</i> may cease observance of the Sabbath and must observe the following day as <i>Shabbat</i>.53<i class="footnote">R. Abraham Mordecai Alter, <i>Mikhtevei Torah</i>, no. 35, reprinted in <i>Piskei Teshuvah</i>, ed. R. Abraham Pietrekovsky (Pietrkow, 5693), III, no. 252, adopts the curious position that one who crosses the dateline from west to east after completing the observance of <i>Yom Kippur</i> or of Passover need not fast or observe the holy day a second time. <i>Teshuvot Mishpatim Yesharim</i>, no. 77, followed by <i>Teshuvot Kokhavei Yiẓḥak</i>, II, no. 11, expresses doubt with regard to this matter. See also, R. Yisra’el David Harfenes, <i>Nishmat Shabbat</i>, VII, no. 541 as well as <i>Yisra’el ve-ha-Zemanim</i>, I, no. 7, sec. 36 and no. 46, chap. 4, sec. 1 and II, chap. 13, sec. 6.</i> Similarly, a person traveling from west to east who crosses the dateline on <i>Shabbat</i>, and is then on the eastern side of the dateline where it is Sunday, may cease observance of <i>Shabbat</i> entirely54<i class="footnote">See also R. Yechiel Michal Gold, <i>Me’asef le-Khol ha-Maḥanot, Oraḥ Ḥayyim</i> 18:25. Cf., however, <i>Teshuvot Minḥat Elazar</i>, IV, no. 42 and R. Moshe Stern, <i>Teshuvot Be’er Mosheh</i>, VII, <i>Kuntres Elektrik</i>, no. 93, who rule that, having begun observance of <i>Shabbat</i>, the traveler must continue that observance until nightfall. Cf., R. Betzalel Stern, <i>Teshuvot Be-Ẓel ha-Ḥokhmah</i>, IV, no. 84, sec. 5 and no. 133.</i> and not observe <i>Shabbat</i> again until the end of the week.55<i class="footnote"><i>Emek ha-Teshuvah</i>, no. 22, raises two related questions:1) If a child travels on his <i>bar miẓvah</i> day to an area in which it is still one day earlier, does he revert to the to the status of a minor? It would seem to this writer that the answer is yes because the child has, in effect, travelled back in time. Cf., the statement of the Palestinian Talmud, <i>Ketubot</i> 1:2, <i>Nedarim</i> 6:9, and <i>Sanhedrin</i> 1:2, regarding the status of a girl whose third birthday occurs during the month of Adar. If the <i>Bet Din</i> later adds an intercalated month she retroactively acquires the status of a pre-three year old infant. The same principle applies to a child who reaches his thirteenth or her twelfth birthday in Adar. Thus, <i>Shulḥan Arukh</i>, <i>Oraḥ Ḥayyim</i> 55:10, describes the case of one child born on 29 Adar I and a second child born on 1 Adar II and rules that thirteen years later, in a year having but a single Adar, the younger child becomes <i>bar miẓvah</i> on the first day of the month while the older child does not become <i>bar miẓvah</i> until the 29th day of the month. See also Rashba, <i>Mishmeret ha-Bayit</i>, <i>bayit shevi‘i sha‘ar shlishi</i>.2) If a woman immersed herself in a <i>mikveh</i> on the evening following the expiration of her seven clear days and subsequently travels to an area in which it is still the seventh day, does she revert to a state of ritual impurity? It would seem to this writer that the answer is negative because purity and impurity do not depend upon expiration of a prescribed number of days per se but upon efficacious immersion. Since at the time of her immersion, the immersion was valid there appears to be no reason why her status should undergo a change.</i> <i>Hazon Ish</i> refuses to distinguish between a traveler and a permanent resident or between a person who intends to return to his port of embarkation and a person who has no such intention "for <i>Shabbat</i> was given to man at the place where he is."56<i class="footnote"><i>Ha-Ish ve-Ḥazono</i>, p. 99.</i> <i>Hazon Ish</i> sees no difference between that situation and the situation of a traveler who crosses the dateline. A traveler commences and ceases observance of <i>Shabbat</i> on the basis of the time of sunset in the locale in which he finds himself rather than on the basis of the time of sunset at his place of residence. Similarly, R. Betzalel Stern, <i>Teshuvot Be-Ẓel ha-Hokhmah</i>, IV, no. 83, assumes as a matter of course that a traveler crossing the halakhic dateline from west to east on Sunday must observe the balance of the day as <i>Shabbat</i>.57<i class="footnote">See also <i>Teshuvot Bnei Ẓion</i>, I, no. 14; <i>Teshuvot Or le-Ẓion</i>, I, <i>Oraḥ Ḥayyim</i>, no. 14; <i>Teshuvot Nishmat Shabbat</i>, VII, no. 541; and R. Yisra’el David Harfenes, <i>Yisra’el ve-ha-Zemanim</i> (Brooklyn, 5764), II, chap. 13, secs. 6-11.</i>
  R. Moshe Feinstein, <i>Iggerot Mosheh, Oraḥ Hayyim</i>, III, no. 96, and <i>Be-Ẓel ha-Hokhmah</i>, I, no. 31, sec. 8, similarly rule that a person traveling by plane from west to east on <i>Tish'ah be-Av</i> may break his fast as soon as he experiences nightfall58<i class="footnote"><i>Iggerot Mosheh</i> explicitly asserts that, conversely, a person traveling east to west on a fast day must continue fasting until nightfall occurs in the place in which he finds himself. Cf., however, R. Elijah Zlotnick, <i>Pri Eliyahu</i>, III, no. 17; and R. Samuel ha-Levi Woszner, <i>Teshuvot Shevet ha-Levi</i>, VII, no. 76 and VIII, no. 261. See also <i>Yisra’el ve-ha-Zemanim</i>, I, no. 46, chap. 4.</i> even though he has not fasted a full twenty-four hour period.59<i class="footnote">R. Eliezer Rotter, <i>Mevakshei Torah</i>, no. 25 (Sivan, 5759), p. 384, in discussing the situation of a person travelling during the night proceeding a fast day from west to east e.g., from Israel to the United States, reports that R. Joseph Shalom Eliashiv informed him that the traveler must observe the fast from the time that the fast begins in his place of arrival and hence, if the plane flies the route which takes the traveler over Greenland, where it is day, and then south, where it is again night, the period of daylight may be ignored. This writer assumes that the terminology in which this ruling is conveyed is imprecise and that the essence of Rabbi Eliashiv’s response was that commencement of the fast is not determined by the time at the point of embarkation but at the place where the traveler finds himself and hence, travelling from west to east, it will never be earlier than the time of daybreak in the United States. If so, that position is unremarkable. However, Rabbi Eliashiv’s ruling with regard to the period of overflight in an area in which it is already day is subject to challenge. Presumably, a person who crosses the halakhic dateline to an area in which it is <i>Shabbat</i> would, according to <i>Ḥazon Ish</i>, be required to observe the period he spends on that side of the dateline as <i>Shabbat</i> even if he intends to recross the dateline the same day.</i> The same principle would apply to determining the onset of the eighth day for purposes of circumcision of an infant,60<i class="footnote">See R. Elijah Posek, <i>Koret ha-Brit</i> (Lemberg, 5653), 262:2 and R. Shabbetai Lipschutz, <i>Brit Avot</i> (Munkαcs, 5674), no. 10, <i>kuntres aḥaron</i>.</i> for determining the proper time for a woman's immersion in a <i>mikveh</i>61<i class="footnote">See <i>Teshuvot Be’er Mosheh</i>, VII, <i>Kuntres Elektrik</i>, no. 116.</i> and for various other halakhic matters.62<i class="footnote">The gloss of <i>Dagul me-Revavah</i> to <i>Shakh</i>, <i>Yoreh De‘ah</i> 195:4 is of seminal importance in establishing the principle that halakhic provisions dependent upon completion of a period of a day or of a multiple number of days do not require expiration of a full twenty-four hour period or periods.</i> In each of those cases there is no reason why a person may not embark upon a trip in which such a phenomenon will occur. That would also appear to be the case with regard to crossing the dateline in circumstances in which the duration of the traveler's observance of <i>Shabbat</i> or of his fast will be diminished.63<i class="footnote">However, some authorities maintain that it is improper to cross the halakhic dateline in order to avoid observance of the Sabbath. See <i>Teshuvot Ereẓ Ẓevi</i>, no. 44, who cites a comment of the <i>Mekhilta</i> cited by Ramban, Exodus 20:8, “ ‘Remember [the Sabbath day]’ before it comes,” as establishing an obligation to assure in advance that the seventh day be observed as the Sabbath. See also <i>Teshuvot Bnei Ẓion</i>, I, no. 14, sec. 21 and R. Chaim Kanievsky, cited by <i>Ta’arikh Yisra’el</i>, no. 1, note 42, s.v. <i>ve-od</i>.</i>
  In a similar vein, R. David Menachem Babad, <i>Teshuvot Havazelet ha-Sharon</i>, I, <i>Yoreh De'ah</i>, no. 47, points out that a child becomes a <i>bar mizvah</i> on his thirteenth birthday wherever he may find himself even though he may no longer be in the city of his birth and even though in the place of his birth it may still be the previous day. <i>Havazelet ha-Sharon</i> applies the same general principle in permitting the slaughter of a calf immediately after nightfall following the day on which its mother was slaughtered even though the calf may be in a locale in which nightfall occurs while it is still day in the locale in which the mother was slaughtered.64<i class="footnote">See also <i>Me’asef le-Khol ha-Maḥanot, Oraḥ Ḥayyim</i> 18:25.</i> The same principle is applied by R. Eliezer Chaim Deutsch, <i>Teshuvot Duda'ei ha-Sadeh</i>, no. 25, to observance of a <i>yahrzeit</i> and by R. Alter Saul Pfeffer, <i>Teshuvot Avnei Zikaron</i>, II, no. 87, sec. 1, to observance of laws of mourning.65<i class="footnote">See also the responsum of R. Koppel Reich published as an addendum to <i>Teshuvot Duda’ei ha-Sadeh</i>.</i>
  However, R. Aryeh Zevi Frommer, <i>Teshuvot Erez Ẓevi</i>, I, no. 44, adopts a somewhat different position with regard to observance of <i>Shabbat</i>. Citing <i>Avnei Nezer, Oraḥ Hayyim</i>, no. 89, <i>Erez Ẓevi</i> asserts that the obligations pertaining to Sabbath observance throughout the entire Sabbath day become effective at the very beginning of the day. Accordingly, he rules that a person who is in a place where it becomes <i>Shabbat</i> at nightfall becomes obligated to observe the entire ensuing twenty-four hour period as <i>Shabbat</i> even if he crosses the dateline during that period.
  Despite the weight of opinion to the contrary, R. Menachem Kasher, <i>Torah Shelemah</i>, I, <i>Bereishit</i> 1:430, expresses doubt with regard to this matter. Without citing sources, he suggests that <i>Shabbat</i> observance requires the observance of a period of a full twenty-four hours. He further argues that on <i>Yom Kippur</i> a fast of a full twenty-four hours is required by virtue of the fact that Scripture requires that on <i>Yom Kippur</i> "you shall afflict yourselves" and proceeds to prescribe the observance of Yom Kippur "from evening to evening" (Leviticus 23:32).66<i class="footnote">That argument is certainly not compelling. A person may receive nutrients intravenously even though he will not suffer the “affliction” of the fast. See this writer’s <i>Contemporary Halakhic Problems</i>, III (New York, 1989), 129–140. See also <i>Ḥavalim be-Ne‘imim</i>, IV, no. 3, who comments, “Is it then forbidden to sleep on <i>Yom Kippur</i> even though [when sleeping] one experiences no afflictions?” <i>Ḥavalim be-Ne‘imim</i> dismisses the notion that one must observe <i>Shabbat</i> and <i>Yom Kippur</i> for a full twenty-four hour period as entirely without basis. See also <i>supra</i>, note 27.</i> That position is reiterated by Rabbi Kasher in his <i>Kav ha-Ta'arikh ha-Yisra'eli</i>, chapter 58. In chapter 73 of the same work Rabbi Kasher reiterates that view with a slight variation: he questions whether performance of a forbidden act of labor under such circumstances involves a capital transgression or if it is only a negation of the positive obligation to rest on the seventh day. Elsewhere in <i>Kav ha-Ta'arikh ha-Yisra'eli</i>, chapters 39 and 53, Rabbi Kasher argues that there is a "personal" <i>Shabbat</i> at the end of every seven day cycle that is independent of solar phenomena.67<i class="footnote">See also R. Menachem Kasher, “Shabbat Bereshit ve-Shabbat Sinai,” pp. 400–401 and p. 410.</i> In chapter 53 he argues that observance of that "personal" Sabbath is mandated solely by the positive commandment regarding rest on the seventh day but not by the negative prohibitions entailing capital punishment.68<i class="footnote">Cf., R. Menachem Kasher, <i>Teshuvot Divrei Menaḥem</i> (Jerusalem, 5737), I, no. 3. In <i>Teshuvot Divrei Menaḥem</i>, Rabbi Kasher advances an apparently contradictory position in suggesting that it is forbidden to cross the dateline in a manner that curtails Sabbath observance because the traveler thereby actively abrogates a positive commandment by removing himself from its ambit. That statement is surely in contradiction to his parallel assertion that the traveler remains bound by Sabbath obligations. Cf. also, <i>supra</i>, note 51.</i>
  VII. Prayer in the Polar Regions
  How are the proper times for recitation of the thrice-daily prayers determined in the polar regions? That problem is more complex than determining the beginning and end of each day of the week because the stated time for <i>shaḥarit</i> is after dawn and the stated time for <i>ma'ariv</i> is after the appearance of stars.69<i class="footnote">Determination of the proper time for recitation of <i>minḥah</i> is somewhat less of a problem. Assuming that the beginning and end of the day can be determined, the intervening period is divided into twelve astronomical hours. <i>Minḥah</i> would then be recited when six and a half of those “hours” have elapsed.</i> The primary issue is whether, for purposes of prayer, day is defined in terms of light and whether night, for purposes of prayer, is defined in terms of darkness. If so, there can be no opportunity for <i>ma'ariv</i> during the polar summer and no opportunity for <i>shaḥarit</i> (or <i>minḥah</i>) during the polar winter. Moreover, since in the polar regions, summer is one long day and winter is one long night, <i>shaḥarit</i> would be recited only once during the summer and <i>ma'ariv</i> but once during the winter.
  On the other hand, with regard to the determination of day and night, dawn and the appearance of stars may not be definitional but simply emblematic, i.e., dawn and the appearance of stars may simply be visual phenomena signifying the advent of day and night but, objectively speaking, day and night may not be integrally associated with light and darkness. If so, there may be alternative ways of determining the beginning and end of each day and of each night.
  It is precisely this question that is formulated by R. Elchanan Wasserman, <i>Kovez Shi'urim, Pesaḥim</i>, sec. 2, and which is the subject of further discussion by R. Shlomoh Heiman, <i>Hiddushei R. Shlomoh: Ketavim u-Teshuvot</i>, no. 19. Those views are cited by R. Abraham Israel Rosenthal, <i>Ke-Moze Shallal Rav</i> (Jerusalem, 5758), I, 22-24. The primary halakhic ramification arises in the context of a judicial proceeding in which it is necessary to determine the precise time of the commencement of night. The problem arises in a situation in which, instead of two witnesses coming forward to testify to the appearance of three stars, three different sets of witnesses appear and each one testifies to the appearance of a different star. The rule is that witnesses must testify to an entire "matter" rather than to "half a matter" (<i>davar ve-lo ḥazi davar</i>). It is because of that rule of evidence that, since halakhic majority is contingent not simply upon age but also upon the presence of two pubic hairs, a single set of witnesses must testify to the presence of both hairs. But, that rule of evidence notwithstanding, testimony of different sets of witnesses may be combined in order to establish that three years of adverse possession have elapsed. <i>Shitah Mekubbezet, Bava Batra</i> 56b, explains that pubic hair constitutes the essence of adulthood. Hence two hairs constitutes a single "matter" (<i>davar</i>) and therefore their presence must be established by a single pair of witnesses. In contradistinction, adverse possession does not serve to generate title but, in Jewish law, is merely evidence of title. Since adverse possession is not a "matter" but merely evidence of a "matter," separate sets of witnesses may testify to different periods of adverse possession.
  Similarly, if the presence of stars constitutes the essence of night, with the result that "night" and the presence of three starts are tautologous concepts, the evidence of the advent of all three stars must be established by a single set of witnesses. If, on the other hand, the appearance of stars is merely evidence of the arrival of night, the presence of each star might be established by a different set of witnesses.
  R. Elchanan resolves this quandary by pointing to biblical verses. Stars were created together with other celestial bodies on the fourth day. Nevertheless, Scripture declares, "And it was evening, and it was morning, one day." But how can there be "evening" in the absence of stars? Obviously, declares R. Elchanan, "evening" must be a phenomenon that can occur independently of the appearance of stars! The presence of stars in determining "night" is emblematic rather than causative or performative. R. Shlomoh Heiman endeavors to rebut that proof: A eunuch never develops pubic hair. But, despite the fact that pubic hair is the causative factor of adulthood, at the age of twenty the eunuch is declared to have retroactively achieved halakhic maturity at the age of thirteen. Similarly, suggests R. Shlomoh, the "evening" of each of the first three days of Creation may have been established retroactively with the appearance of stars on the fourth day. It should also be noted that Rashbam comments upon the fact that Scripture employs the term "evening" rather than "night" and proceeds to explain that the term "day" in that context is not at all to be understood in the conventional sense of the term.
  According to R. Elchanan there is no question that determination of "day" and "night" is not absolutely contingent upon dawn and darkness. The sole issues are whether there are discrete days during the solar summer and the solar winter and, if so, when does each day begin. Once the beginning of each day is determined, the intervening period is divided into twelve hours of "day" and twelve hours of "night." Hence, according to <i>Divrei Yosef</i>, each day of the polar summer begins when the sun returns to the point in the sky it occupied at the time of its first appearance in the spring; during the polar winter each night is similarly determined by the rotation of stars in the sky.70<i class="footnote">See <i>supra</i>, note 14.</i> Similarly, if R. Jacob Emden and <i>Tiferet Yisra'el</i>, as well as the numerous authorities cited earlier who maintain that the passing of days is to be calculated on the basis of twenty-four hour periods, are understood as asserting that "days" are to be calculated on the basis of twenty-four hour periods with the times of sunrise and sunset determined at the point of embarkation or at some other locale, the appropriate time periods for the various prayers would also be determined on the basis of those calculations.71<i class="footnote">Rabbi Goren, “Shnei Mikhtavim,” cited <i>supra</i>, note 14, establishes the beginning of day and night as occurring at midnight during the polar summer and at noon during the polar winter. He asserts that for purposes of offering prayer during the summer the day be divided accordingly. <i>Ma‘ariv</i> may be recited even during day-light hours subsequent to the <i>plag ha-minḥah</i>. Curiously, and not quite logically, Rabbi Goren fixes <i>plag ha-minḥah</i>, the earliest time for reciting the <i>ma‘ariv</i> prayer, as 10:45 P.M. on the basis of clock hours rather than as 9:30 P.M. on the basis of <i>sha‘ot zemaniyot</i> or astronomical hours. Rabbi Goren comments that he “prefers” to utilize clock hours because the alternative would result in an astronomical hour of 120 minutes of duration and consequently there would be no remaining night-time hours during which the <i>ma‘ariv</i> prayer might be offered. There is, however, no room for “preference” or “choice” with regard to such matters. Other authorities did not shrink from the conclusion that daytime <i>miẓvot</i> simply cannot be performed during the polar night and that nighttime <i>miẓvot</i> cannot be performed during the polar day. Moreover, acceptance of Rabbi Goren’s position coupled with employment of astronomical hours for calculating the time span during which the various prayers may be recited need not necessarily result in inability to recite <i>ma‘ariv</i>. As has been noted, <i>Mo‘adim u-Zemanim</i> also accepts the notion of a “constructive” twilight at the moment that the sun completes a 360° rotation in the sky. <i>Mo‘adim u-Zemanim</i> rules that that moment be regarded as night of a split second in duration for purposes of calculating the <i>plag ha-minḥah</i> during which <i>ma‘ariv</i> may be recited. The same reasoning would apply to determination of the time for <i>ma‘ariv</i> on the basis of Rabbi Goren’s “constructive” sunrise and sunset.Rabbi Goren regards prayer during the winter months as more problematic since there is no period when the sun is above the horizon that can be defined as “day.” He offers four alternative solutions: 1) to calculate the times for prayer according to the corresponding time period in the Land of Israel; 2) to rely upon the view that <i>shaḥarit</i> may be recited even before dawn; 3) to regard <i>ma‘ariv</i> as the only legitimate prayer of the day and, as is the rule in cases of emergency, to recite a second <i>shemoneh esreh</i> as a substitute for the missed <i>minḥah</i>; 4) to borrow the criteria of “when you lie down and when you rise up” descriptive of <i>keri’at Shema</i> and utilize them for establishing the time of prayer as well.Rabbi Goren seems to have no problem with regard to evening prayers during the polar summer and fixes their time as <i>plag ha-minḥah</i>. But, since <i>plag ha-minḥah</i> is the mid-point between mid-day and night how can there be <i>plag ha-minḥah</i> without both afternoon and night? That, according to Rabbi Goren (as presented by Professor Domb), should require calculating all <i>zemanim</i> on the basis of the nearest geographical area in which there is a period of darkness or (as Rabbi Goren seems to say) postulating a “constructive” sunset and sunrise. By the same token, if there can be “night” (as is necessary in order to calculate <i>plag ha-minḥah</i>) during a twenty-four hour period of daylight, why is there not also “morning” during a twenty-four hour period of darkness? Since, as is evident from the alternatives offered by Rabbi Goren for determining the time for <i>shaḥarit</i> and <i>minḥah</i>, he is of the opinion that daylight is not required for those prayers, logical consistency should dictate that, during the polar winter, the “day” be considered as beginning at noon just as during the polar summer the day is considered as beginning at midnight and that the times for offering the various prayers be calculated accordingly.The alternative options with regard to recitation of <i>shaḥarit</i> are, in this writer’s opinion, unacceptable. As explained in <i>Contemporary Halakhic Problems</i>, I (New York, 1977), 238-239, recitation of <i>shaḥarit</i> before dawn is limited to the period of time subsequent to the earliest hour at which the sacrificial order commenced in the Temple. <i>Terumat ha-deshen</i>, or removal of a portion of the ashes which accumulated during the night as a result of the burning of the previous day’s sacrifices, was performed on <i>Yom Kippur</i> by the High Priest at midnight. It is quite impossible to determine the time of midnight when there is neither “night” nor “day.” Nor is there reason to apply the time periods of the Land of Israel to the polar areas. See <i>supra</i>, notes 10, 15 and 48.Most troublesome is the offering of four alternative solutions with the implication that the traveler may legitimately choose any one of the four options. If <i>zemanim</i> are objective, the notion of choice between alternatives is untenable. If there are no objective <i>zemanim</i>, the question remains unresolved. If each of the “alternative solutions” represents a doubtfully correct procedure then halakhic canons applicable to doubtful obligations regarding prayer must apply.</i> <i>Ben Ish Hai</i>, in his <i>Teshuvot Rav Pe'alim</i>, II, <i>sod yesharim</i>, no. 4, also espouses the view of R. Jehoseph Schwartz in his <i>Teshuvot Divrei Yosef</i> to the effect that the passing of days during the the polar summer and winter is to be calculated on the basis of twenty-four hour periods. <i>Rav Pe'alim</i>, however, asserts that night "begins at the time that night and day commence at the equator," i.e., night begins at 6:00 P.M. and day beings at 6:00 A.M., and that the times for the various prayers are also to be determined on the basis of that presumption. The problem is that at the North Pole all time zones converge making the adoption of an equatorial clock impossible.
  According to <i>Mo'adim u-Zemanim</i>, during the polar summer there are twenty-four hour "days" but "nights" of only a split second in duration and, presumably, during the polar winter there are "nights" of twenty-four hours and "days" of only a split second in duration. If so, one would recite <i>shaḥarit</i> and <i>minḥah</i> during the summer in the normal manner and <i>ma'ariv</i> during the period of <i>plag ha-minḥah</i> and recite only <i>ma'ariv</i> during the winter.
  If, however, R. Jacob Emden and <i>Tiferet Yisra'el</i> are to be understood as asserting that there is no demonstrable method for determining the passing of days in the polar regions, it follows that, because of the irresolvable doubt, no prayers should be recited.
  According to what has earlier been described as "an unconsidered view," the polar summer would constitute one long day and necessitate recitation of but one <i>shaḥarit</i> and one <i>minḥah</i> while the polar winter would constitute one long night necessitating but a single <i>ma'ariv</i>. According to the earlier formulated "alternative view," during the months in question there is no "time" in the polar regions with the result that no time-bound <i>mizvot</i> can be performed.
  In terms of practice, a person finding himself in a polar area would be well advised to avail himself of the option provided by Halakhah for the offering of voluntary prayers (<i>tefillot nedavah</i>). The traveler should then determine the hours during which the various prayers may be offered according to the opinions of <i>Tiferet Yisra'el, Teshuvot Divrei Yosef</i> and <i>Mo'adim u-Zemanim</i> and recite the <i>shemoneh esreh</i> prayer during those periods. However, before reciting the <i>shemoneh esreh</i> he should stipulate that it is his intention that, if the hour is not appropriate for the offering of statutory prayer, the prayer is offered as an optional prayer. That expedient, however, is not available for recitation of the various other blessings that constitute part of the morning and evening services.
  Recitation of <i>keri'at Shema</i> for the purpose of fulfilling the biblical commandment also requires determination of the beginning and end of each day and of each night. However, note should be taken of the rather curious and singular position of R. Chaim Eleazar Shapiro, <i>Teshuvot Minḥat Elazar</i>, IV, no. 42, to the effect that the proper time for recitation of <i>keri'at Shema</i> is to be determined by a literal reading of the verse "when you lie down and when you rise" and hence that the appropriate time for the recitation of <i>Shema</i> in the morning is established uniformly by clock hours rather than by astronomical hours, i.e., even the "sons of kings" arise by nine o'clock each day throughout the year. Thus, on each "day" <i>keri'at Shema</i> must be recited by nine o'clock. However, <i>Minḥat Elazar</i>'s position does not entail the conclusion that people who customarily arise before dawn may recite <i>keri'at Shema</i> before the advent of the new day. Therefore, since the manner of determining the time at which "dawn" occurs during the polar summer and winter is problematic, the question of determining the proper time for recitation of <i>keri'at Shema</i> in the polar areas remains unresolved. Similarly, although <i>keri'at Shema</i> must be recited in the evening "when you lie down," there is no obligation to recite <i>keri'at Shema</i> anew each time one goes to sleep during the course of a single night.
  More obscure, but of no more help in resolving the problem of recitation of <i>keri'at Shema</i> in the polar areas, is the position of R. Ya'akov Shalom Sofer, <i>Torat Hayyim</i> (Budapest, 5764) 235:3, who advances the thesis that in places in which there is a "short night" the evening <i>Shema</i> may be recited "when you lie down," i.e., after 6:00 P.M. A similar view is advanced by R. Moshe Sternbuch in a note appended to his <i>Mo'adim u-Zemanim</i>, II, no. 155 with regard to recitation of <i>keri'at Shema</i> both in the morning and in the evening.72<i class="footnote">See also R. David Yitzchaki, <i>Or Yisra’el</i>, no. 31 (Adar Sheni 5763), p. 238.</i>
  VIII. An Afterword
  The foregoing is an attempt to formulate the normative rules for a Jew finding himself in the polar areas or orbiting earth. Whether a Jew should seek to place himself in such a situation is an entirely different matter. <i>Zekher Simḥah</i>'s advice to his son is worthy of citation in regard to that issue. <i>Zekher Simḥah</i> finds a comment of the Gemara, <i>Berakhot</i> 31a, to be instructive with regard to the situation in which his son found himself:
  Mari the grandson of R. Huna the son of R. Jeremiah the son of Abba taught: A person should not take leave of his fellow other than with a matter of Halakhah for thereby he will remember him. R. Kahana escorted R. Shimi the son of Ashi from Pum Nahara to Be-Zenyata of Babylonia. When he arrived there he said to him… "What is meant by the verse 'Through a land that no man had passed through and where no man dwelt' (Jeremiah 2:6)? Since no one passed through, how could anyone dwell? It is to teach you that any land which Adam decreed should be inhabited is inhabited and any land which Adam decreed should not be inhabited is not inhabited."
  The comment does indeed serve to illuminate the meaning of the scriptural passage but does not at all appear to illustrate any matter of halakhic import. Yet the comment is cited as an anecdote in illustration of the dictum counseling that one should part from a friend with "a matter of Halakhah," not with a matter of scriptural interpretation or an aggadic <i>bon mot</i>.
  <i>Zekher Simḥah</i> regards the statement of the Gemara as reflecting a matter having halakhic import: Adam decreed that only areas in which <i>mizvot</i> might be observed should be inhabited; he decreed that areas in which <i>mizvot</i> are not fully binding should remain desolate and uninhabited. The halakhic moral is simple. Man should seek to maximize the opportunities for fulfilling <i>mizvot</i>.73<i class="footnote">See also <i>Mo‘adim u-Zemanim</i>, II, no. 155, who states, “Therefore, in truth, a Jew should not dwell in such places on a permanent basis.”</i> That is not possible in polar areas or in outer space in which time-bound <i>mizvot</i> are irrelevant.74<i class="footnote">This is not to suggest that removing oneself from the ambit of a <i>miẓvah</i> constitutes an actual transgression. Thus, for example, Rashi, <i>Pesaḥim</i> 69a, s.v. <i>onesh karet</i>, permits a person to create circumstances in which the obligation to offer the paschal sacrifice will not devolve upon him. To be sure, a person may not place himself in a position in which he is prevented from fulfilling a <i>miẓvah</i> already incumbent upon him because of <i>force majeure</i>. Thus, Rashba, <i>Torat ha-Bayit, Bayit Rishon, sha‘ar</i> 5, cites <i>Ḥullin</i> 31a in demonstrating that a person may not slaughter a bird in circumstances in which it is clear that he subsequently will not be able to fulfill the commandment concerning covering the blood with earth (<i>kisuy ha-dam</i>). Quite certainly, as is readily apparent from <i>Shulḥan Arukh</i>, <i>Oraḥ Ḥayyim</i> 13:3, under ordinary circumstances, a person may not don a four-cornered garment on <i>Shabbat</i> to which, because of Sabbath restrictions, he cannot attach <i>ẓiẓit</i>.[See however, <i>Mordekhai, Menaḥot, Halakhot Ketanot</i>, sec. 944, cited by <i>Magen Avraham, Oraḥ Ḥayyim</i> 13:8. According to Magen Avraham, <i>Mordekhai</i> maintains that donning a four-cornered garment on <i>Shabbat</i> lacking <i>ẓiẓit</i> is forbidden only by rabbinic decree. For various analyses of <i>Mordekhai</i>’s position, see, <i>inter alia</i>, R. Yo’av Yehoshua Weingarten, <i>Teshuvot Ḥelkat Yo’av</i>, <i>hashmattot</i>, no. 1; R. Yechiel Ya’akov Weinberg, <i>Seridei Esh</i>, III, no. 93; R. Ya’akov Kanievsky, <i>Kehillot Ya‘akov, Bava Kamma-Bava Batra</i>, addenda, no. 6 and <i>Menaḥot</i>, no. 21; R. Samuel Rozowsky, <i>Shi‘urei ha-Grash Razavsky, Yevamot</i>, no. 4; <i>Mo‘adim u-Zemanim</i>, I, no. 35 and R. Zalman Nechemiah Goldberg in <i>Halikhot Shlomoh</i>, ed. R. Isaac Trager and R. Aaron Auerbach (Jerusalem, 5760), I, 358. See also additional sources listed by R. Joseph Ben-Arza, <i>Yosef Da‘at</i>, no. 65 (<i>Menaḥot</i> 32-44), chap. 7, sec. 14.]Whether a person may perform a delayed circumcision on Thursday with the knowledge that it will then become necessary to violate the Sabbath on behalf of the patient is a matter of controversy between <i>Ba‘al ha-Ma’or</i> and Ramban, <i>Shabbat</i> 134a. For analyses of that controversy see <i>Teshuvot Ḥatam Sofer, Even ha-Ezer</i>, I, no. 1 and VI, no. 97; <i>Teshuvot Miẓpeh Aryeh</i>, I, no. 31; R. Meir Dan Plocki, <i>Ḥemdat Yisra’el</i>, II, no. 10; and R. Eliezer Waldenberg, <i>Shevitat ha-Yam</i>, chap. 6, sec. 8. <i>Ḥayyei Adam</i> 155:30 writes that a person should not allow himself to become inebriated on <i>Purim</i> if, as a result, he will not be able to recite the statutory prayers. See the statement of the Gemara, <i>Nazir</i> 23a, declaring that Lot, having become aware of the incestuous act of his elder daughter that took place while he was in a state of inebriation, should not have partaken of wine the following evening. R. Moshe Feinstein, <i>Iggerot Mosheh, Yoreh De‘ah</i>, I, no. 229, <i>anaf</i> 4, makes a similar comment with regard to drunkenness, sleep and other factors designed to avoid culpability as a result of mental incompetence but states that “perhaps one is permitted to render oneself a <i>shoteh</i> knowing that one will commit transgressions in that state because a <i>shoteh</i> is intrinsically exempt from <i>miẓvot</i>.” See also <i>Baḥ, Oraḥ Ḥayyim</i> 585, s.v. <i>u-mefaresh</i>, who declares avoidable loss of a <i>shofar</i> to be tantamount to willful non-performance. More generally, <i>Ḥelkat Meḥokek, Even ha-Ezer</i> 50:16, citing <i>Teshuvot ha-Ramban</i>, no. 272, writes that “if one causes duress to oneself, it is not duress but willful.” That principle is also reflected in a ruling of <i>Shulḥan Arukh, Yoreh De‘ah</i> 232:17, in the context of nonfulfillment of a vow. See also <i>Teshuvot Maharit</i>, I, no. 21; R. Meir Dan Plocki, <i>Ḥemdat Yisra’el</i>, I, <i>Kuntres Ner Miẓvah</i>, sec. 1; <i>idem, Klei Ḥemdah, Parashat Balak</i>, sec. 4; and R. Nachum Weidenfeld, <i>Ḥazon Naḥum</i>, I, no. 28 and II, <i>Teshuvot Yosef Engel</i>, sec. 13.Cf., however, R. Zevi Pesach Frank, <i>Mikra’ei Kodesh</i>: <i>Pesaḥ</i>, III, no. 16, who cites R. Shneur Zalman of Lublin, author of <i>Teshuvot Torat Ḥesed</i>, who stated as a general principle that a person is not bound to refrain from an act that will make it necessary for him subsequently to violate either a positive or a negative commandment. It is for that reason, opines <i>Torat Ḥesed</i>, that a person may depart from his home thirty days before <i>Pesaḥ</i> or earlier, even though, as a result of his departure, he will not be able to conduct the search for <i>ḥameẓ</i>.R. Yisrael David Harfenes, <i>Teshuvot va-Yevarekh David</i>, II (Brooklyn, 5749), no. 168, presents an exhaustive list of sources discussing whether a person is at all obligated to make necessary preparations for performance of a <i>miẓvah</i> before the <i>miẓvah</i> actually becomes incumbent upon him and whether a person may place himself in a situation in which it will later be impossible for him to fulfill the <i>miẓvah</i>. See also the examples and sources discussed by R. Yitzchak Yonah Ehrman, <i>Shirat Yiẓḥak</i> (Jerusalem, 5762), pp. 124-179.R. Samuel ha-Levi Woszner, <i>Teshuvot Shevet ha-Levi</i>, II, no. 25, draws a distinction between passive vs. active transgression in asserting that all authorities agree that a person may engage in a permissible activity despite his awareness that he will later be compelled passively to transgress a prohibition because of danger to life.See also <i>Tosafot, Pesaḥim</i> 113b, s.v. <i>ve-ein</i>, who maintain that a person who is negligent in seeking the opportunity to fulfill a <i>miẓvah</i> is a <i>menudeh le-shamayim</i>. See also R. Shalom Mordecai Schwadron, <i>Teshuvot Maharsham</i>, I, no. 209, as well as <i>Ḥayyei Adam</i> 68:19. <i>Minḥat Ḥinnukh</i>, no. 5, sec. 13 and <i>Or Sameaḥ, Hilkhot Korban Pesaḥ</i> 1:18 address the question of whether a person finding himself at a distance (<i>be-derekh reḥokah</i>) from Jerusalem on <i>erev Pesaḥ</i> is obligated to journey to Jerusalem in order to become subject to the <i>miẓvah</i> of the paschal sacrifice.[One source not adduced by any of the scholars who address this issue is the statement recorded by the Gemara, <i>Shabbat</i> 15a, reporting that forty years prior to the destruction of the Temple the members of the Great Sanhedrin left the <i>lishkat ha-gazit</i> (Chamber of Hewn Stone) located on the Temple Mount and removed their chambers to a location elsewhere in Jerusalem. They did so because capital punishment could not be imposed by the inferior courts having jurisdiction over most capital cases unless the Great Sanhedrin was present in its chambers on the Temple Mount. The purpose of the voluntary exile of the Great Sanhedrin was to prevent imposition of capital punishment in homicide cases. Apparently, since, at the time, there was a “plethora of murderers” (<i>nefishei roẓḥim</i>), the members of the Great Sanhedrin felt that the fear of capital punishment no longer served as a deterrent and hence capital punishment was not serving its purpose. However, since imposition of that punishment is mandatory when the requisite provisions of law have been met, the sole manner in which such punishment could be avoided was for members of the Great Sanhedrin to remove themselves from their chambers on the Temple Mount.However, since imposition of capital punishment constitutes fulfillment of a commandment, this expedient had the effect of removing those obligated to its performance from the ambit of the <i>miẓvah</i>. Accordingly, it seems to this writer that those authorities who maintain that a person may not take steps to avoid fulfillment of a <i>miẓvah</i> even before the <i>miẓvah</i> has become incumbent upon him would concede that a person may engage in measures that would prevent others from becoming obligated to fulfillment of a <i>miẓvah</i>. Thus, even if a person may not intentionally depart from Jerusalem before the fourteenth of Nisan in order to avoid offering the paschal sacrifice, he may nevertheless transport another person (for example, a person who is asleep and does not acquiesce in the expedient) to a place outside of Jerusalem so that the latter individual may avoid the obligation of the paschal sacrifice. In effect, since no actual infraction is involved, such conduct is not within the ambit of the prohibition against “placing a stumbling block before the blind.” If so, the Great Sanhedrin acted appropriately in vacating their chambers on the Temple Mount since the effect of that action was not to avoid their own obligation but to obviate the <i>miẓvah</i> incumbent upon members of the inferior courts charged with executing those guilty of homicide.]See also <i>Bi’ur ha-Gra</i>, <i>Oraḥ Ḥayyim</i> 8:1, who, citing <i>Pesaḥim</i> 48b, rules that it is not permissible to divide a large amount of dough into smaller quantities in order to avoid the obligation of <i>ḥallah</i> as well as <i>Sha‘ar ha-Melekh, Hilkhot Lulav</i> 7:5, who prohibits abandoning title to produce already subject to tithing in order to avoid that obligation. See also, <i>Minḥat Ḥinnukh</i>, no. 328.Those situations are quite different from the situation of a person who sells his house and becomes an itinerant traveler thereby exempting himself from the obligation to affix a <i>mezuzah</i> to his doorpost or of a person who rounds the comers of a four-cornered garment thereby relieving himself of the <i>miẓvah</i> of affixing <i>ẓiẓit</i> to his garment. Similarly, a person who travels to a locale in which there is no “time” or a person who crosses the halakhic dateline on <i>Shabbat</i> and in the process exempts himself from the obligation of a <i>miẓvah</i> incurs no technical infraction. Cf., however, the opinion of <i>Ereẓ Ẓevi</i> as well as <i>Teshuvot Bnei Zion</i> and R. Chaim Kanievsky, cited <i>supra</i>, note 63 and <i>Teshuvot Divrei Menaḥem, supra</i>, note 68. Nevertheless, intentional avoidance of incurring an obligation may result in additional punishment “at a time of anger” (<i>be-idan ritḥa</i>) as described by the Gemara, <i>Menaḥot</i> 41a. [For a discussion of circumstances in which <i>idan ritḥa</i> is applicable see <i>Tosafot, Arukhin</i> 2b, s.v., <i>ha-kol</i>; Rabbeinu Yonah, <i>Sha‘arei Teshuvah</i> 3:23; R. Joseph Cohen, <i>Harerei Kodesh</i>, notes to R. Zevi Pesach Frank, <i>Mikra’ei Kodesh</i>: <i>Sukkot</i>, I, no. 6, note 5; and <i>Teshuvot Or le-Ẓion</i>, I, <i>Oraḥ Ḥayyim</i>, no. 14.] See also <i>Teshuvot ve-Hanhagot</i>, I, no. 315.For a discussion of the propriety of travel to a locale in which there is no <i>minyan</i>, other than for purposes of health, earning a livelihood or activity in conjunction with fulfillment of a <i>miẓvah</i>, see R. Shlomoh Zalman Auerbach, <i>Halikhot Shlomoh</i>, I, chap. 5, sec. 4 and R. Zalman Nechemiah Goldberg, <i>ibid</i>., p. 72.</i>
  It may be added that Deuteronomy 11:21 records that God commanded <i>mizvot</i> "so that your days will be prolonged upon the land which the Lord your God gave you." Scripture does not speak of "prolongation of life;" instead it speaks of prolongation of "days." In light of the foregoing it may be observed that man can experience longevity and his life can be prolonged even though his "days" are not prolonged, <i>viz</i>., he may live to a ripe old age in a polar region or in outer space. But for a Jew that is not a blessing, or at least not the blessing that God seeks to bestow upon him. Life devoid of time-bound <i>mizvot</i> is not the blessing God seeks to bestow; God's blessing is "that your days be prolonged," i.e., that a Jew enjoy life filled with "days" and fulfillment of time-bound <i>mizvot</i> for which the concept of a halakhic day is a <i>sine qua non</i>.
  
  Chapter IV Use of Surveillance Systems on Shabbat
  
  <i>Reflect upon three things and you will not come to sin: Know what is above you—an eye that sees…</i>.
  AVOT 2:1
  I. Closed-Circuit Television
  Closed-circuit television has become a widely used surveillance method and is frequently employed in private security systems. Such systems have been in use in various forms for a considerable period of time. When television sets were not as ubiquitous as at present, electrical appliance stores frequently sought to capture the attention of potential customers by placing closed-circuit systems in their windows. Passers-by would become enthralled at the sight of their own images on the television screen and, the proprietors hoped, would be enticed to enter their establishments. When used as a method of surveillance, the camera, which in private systems is generally fixed but may also oscillate to sweep over a large area, captures the image of any person or object that comes within range. The screen can be placed in a remote location and monitored for the purpose of detecting the presence of a trespasser or to enable the observer selectively to grant entry to the premises. Frequently, the person being observed on closed-circuit television is unaware of the fact that he is under surveillance.
  Some time ago, Rabbi Israel Rosen, one of the editors of <i>Teḥumin</i>, solicited the late Rabbi Moshe Feinstein's opinion with regard of employment of such a security system on <i>Shabbat</i>. The inquiry was based upon the valid presumption that the device may be rendered operative in advance and requires no adjustment over the course of <i>Shabbat</i>. Rabbi Rosen ascertained that the television cameras utilized in commercially available systems, once rendered operative, continuously photograph the area within their range. Thus, entry of a person into the range of the camera causes no change whatsoever in the operation of the mechanism as, for example, would be the case were the camera to be heat or motion sensitive. However, Rambam, <i>Hilkhot Shabbat</i> 11:17, rules that painting a picture or creating a graphic image on <i>Shabbat</i> constitutes a prohibited form of "writing."1<i class="footnote">Cf., however, Rambam’s <i>Commentary on the Mishnah, Shabbat</i> 103a, in which he posits a separate category of labor in the nature of “<i>roshem</i>” or graphic representation.</i> Accordingly, the issue is whether a person may enter the camera's optical field on <i>Shabbat</i>, thereby allowing his image to be "painted" and hence "written" on the screen.
  In a short and succinct reply published in <i>Teḥumin</i>, vol. XIV (5754), Rabbi Feinstein responded that "since this script is non-durable (<i>eino mitkayyem</i>)2<i class="footnote">Actually, it is not immediately clear why the television image should be regarded as non-durable. The image will indeed be eliminated, but only when the person whose image is captured moves out of camera range. In effect, removal of oneself from camera range is a form of “erasure;” were one to remain immobile, the image would be permanent in duration. Nevertheless, the image must be regarded as non-durable because the image perceived over a period of time is not a single image but a series of discrete ephemeral images. The electronic image exists for only a matter of microseconds but is constantly being reproduced and thereby gives the illusion of permanence.</i> and is even inferior [to writing that is <i>eino mitkayyem</i>) therefore it [entering into range of the monitor] constitutes, at most, a rabbinic transgression."3<i class="footnote">A person coming within range of a closed circuit-television camera does not cause the completion of an electric circuit, an act prohibited by <i>Ḥazon Ish, Oraḥ Ḥayyim</i>, no. 50, sec. 9, as a forbidden form of <i>boneh</i>, i.e., building or construction, and by R. Yitzchak Schmelkes, <i>Teshuvot Bet Yiẓḥak, Yoreh De‘ah, mafteḥot</i>, no. 31, as a forbidden form of <i>molid</i>, i.e. creation of a new entity. Nor, as reported by R. Levi Yitzchak Halperin, <i>Yeshurun</i>, XI (Elul 5762), 722, in the “majority of instances” is there an increase in the flow of electric current. The paradigm for the rabbinic prohibition of <i>molid</i> as recorded by Rema, <i>Oraḥ Ḥayyim</i> 511:4, is placement of a perfumed sachet in close proximity to a garment in order to infuse the garment with the aroma of the sachet. Magen Avraham 511:11, followed by Mishnah Berurah 511:26, rules that intensifying an aroma already present in a garment is forbidden for the same reason. If so, enhancing the flow of electric current would similarly be forbidden according to <i>Bet Yiẓḥak</i>. However, <i>Ḥayyei Adam</i> 93:14 disagrees and rules that mere enhancement of fragrance does not constitute <i>molid. Shulḥan Arukh ha-Rav</i> 511:7 understands the prohibition as encompassing the introduction of a second aroma but not the enhancement of an existing fragrance. See R. Levi Yitzchak Halperin, <i>Ma‘aliyot be-Shabbat</i> (Jerusalem, 5744), chap. 13; <i>idem, Teshuvot Ma‘aseh Ḥoshev</i>, I, no. 1, sec. 17 and no. 3, sec. 6 and II, no. 5, secs. 2-3 and no. 16, sec. 2; and <i>idem, Yeshurun</i>, XI, 722.</i> Rabbi Feinstein then concludes that, in any event, no transgression is involved since the act of producing an image on the monitor is a <i>pesik reisha de-lo ikhpat leih</i>, i.e., the prohibited act is an unintended effect of an entirely permissible act and the actor is indifferent to that unintended effect.
  In order properly to appreciate the reasoning underlying Rabbi Feinstein's ruling it is necessary to consider it within the context of the "double effect" theory recognized as a halakhic principle.4<i class="footnote">For a comprehensive survey of the halakhic ramifications of acts entailing entirely unintended results (<i>davar she-eino mitkaven</i>) see <i>Encyclopedia Talmudit</i>, VI, 631-658.</i> The Gemara, <i>Beizah</i> 23b, records a controversy between R. Judah and R. Simeon regarding the permissibility of dragging a bed, chair or the like along the ground on <i>Shabbat</i>. Although entirely unintended, there is a distinct possibility, although not a certainty, that in the process of pulling the bed or chair over the uncovered ground a hole or groove may be gouged in the ground. Intentional digging of a pit or hole in the ground on <i>Shabbat</i> constitutes a forbidden form of labor. R. Judah forbids the dragging of an object over uncovered ground because of fear of inadvertent and unintentional transgression. R. Simeon permits such acts on the grounds that an unintended effect does not render an otherwise permitted act impermissible. The normative rule is in accordance with the permissive view of R. Simeon.
  Nevertheless, the Gemara, <i>Shabbat</i> 75a, declares that even R. Simeon concedes that such an act is forbidden in a case of <i>pesik reisheih ve-lo yamut</i>, literally, a situation in which a person severs the head of an animal from its body but does not intend it to die. Quite understandably, the Gemara expresses incredulity that a person might sever the head of an animal on <i>Shabbat</i> with the intention of feeding the head to a dog, of collecting its spurting blood or for some other purpose and then plead that he did not intend to cause the death of the animal. Since severing the head of the animal necessarily results in its death, intention to cause its death is imputed. Thus, an act that produces a double-effect, one permissible and the other prohibited, can be sanctioned only if the unintended but prohibited effect is not a necessary concomitant of the intended and entirely permitted act. [In fealty to the principle underlying this <i>Shabbat</i> regulation, the proposition should more accurately be formulated as follows: An act that is permissible when undertaken to achieve one effect, but impermissible when undertaken to achieve another effect, can be sanctioned only if the unintended effect is not a necessary concomitant of the permitted act.] Thus, <i>Shulḥan Arukh, Oraḥ Hayyim</i> 337:4, rules that, despite the fact that a bed may be pulled over the ground under usual conditions, nevertheless, a heavy chest or the like may not be moved in a similar manner since it is assumed that a heavy object transported in that manner will certainly gouge a hole in the ground.
  The biblical prohibition attendant upon a <i>pesik reisha</i>, at least with regard to prohibited forms of labor on <i>Shabbat</i>, is limited to situations in which the person performing the act derives some benefit from the unintended effect. Thus, a person may not wash his hands in his own garden if the water dripping from his hands will fall on plants or vegetables. Intentional watering of vegetables is forbidden because it promotes growth. Hence, even washing one's hands in a manner that allows water to fall onto the ground is forbidden since the inexorable effect of water upon vegetation and the potential benefit of that effect combine to impute intention. Washing one's hands in a neighbor's garden is significantly different in that, although promotion of the growth of the vegetation is a necessary result of the act, nevertheless, the person washing his hands derives no benefit from that growth. Accordingly, if there is no actual intent to water the garden, such intent is not imputed by operation of law. Such an act is termed a "<i>pesik reisha de-lo niḥa leih,"</i> literally, "severance of a head that provides no satisfaction to him."
  The term <i>"pesik reisha de-lo niḥa leih"</i> is itself somewhat ambiguous in that the term "<i>lo niḥa—</i>provides no satisfaction" is employed simply to connote the absence of benefit or advantage in the resultant death of the animal but the term might erroneously be presumed to have a more restrictive meaning in denoting the certainty of a negative or deleterious impact, i.e., some, form of damage or harm that would cause the person performing the act to abjure or actively to disdain such an effect. A person may not actively desire fertilization of his neighbor's garden because he has no financial interest in his neighbor's resultant bounty but, unless he harbors biblically forbidden ill-will toward his neighbor, he has no reason to be distressed at his neighbor's good fortune in reaping an enhanced crop of vegetables. His attitude vis-à-vis that unintended result is simply that of indifference.5<i class="footnote">See <i>Mishnah Berurah, Bi’ur Halakhah</i> 320:13, s.v. <i>de-lo niḥa leih</i>.</i> Because of that ambiguity the term "<i>pesik reisha de-lo ikhpat leih—</i>severance of a head that is of no concern to him" is sometimes used in order to capture the correct nuance of meaning.
  The eleventh-century lexicographer, R. Nathan ben Yeḥi'el of Rome, author of the <i>Arukh</i>, is cited by <i>Tosafot</i> in numerous places (<i>Shabbat</i> 103a; <i>Yoma</i> 35a; <i>Ketubot</i> 6a; and <i>Keritut</i> 26b) as ruling that the performance of an act involving a <i>pesik reisha de-lo niḥa leih</i> is entirely permissible.6<i class="footnote">Some early-day authorities, including Rosh, <i>Shabbat</i> 14:9, and Ran, <i>Shabbat</i> 110b, maintain that <i>Arukh</i>’s permissive ruling is limited to Sabbath restrictions which are circumscribed in their limitation to <i>melekhet maḥashevet</i>, i.e., the prohibition applies only to acts that are intentional rather than inadvertent. According to their view, acts entailing other biblical prohibitions are biblically forbidden even if the unintended result is <i>lo-niḥa leih</i>.</i> However, the weight of authority among early-day authorities is that even a <i>pesik reisha de-lo niḥa leih</i> is tantamount to an intentional act and hence is biblically forbidden when the act involves a transgression of any biblical commandment other than the commandment forbidding labor on the Sabbath. With regard to <i>Shabbat</i> restrictions another provision idiosyncratic to labor forbidden on the Sabbath must be considered, <i>viz</i>., the biblical prohibition is attendant only upon an act intentionally performed for a specifically proscribed purpose. When the forbidden effect is not consciously intended, the act, almost by definition, is not performed for its proscribed purpose. For example, the forbidden <i>telos</i> of "digging" is the making of a pit or a hole in the ground; removal of soil, although a necessary result, is not the effect to which this prohibition is addressed. Acts performed other than for the proscribed purpose (<i>melakhah she-einah zerikhah le-gufah</i>), e.g., digging because of a need or desire to obtain soil, are forbidden by virtue of rabbinic decree. Thus, on <i>Shabbat</i>, performance of an act of labor in the form of a <i>pesik reisha de-lo niḥa leih</i> is regarded by those authorities, as forbidden only by rabbinic decree.7<i class="footnote">Me’iri, <i>Shabbat</i> 29b and 103a, maintains that an unintended effect that is actually deleterious and clearly unwanted, rather than neutral and hence merely of no concern one way or the other, is not prohibited even by rabbinic edict and is entirely permissible. See <i>Encyclopedia Talmudit</i>, VI, 650, note 245. <i>Tosafot, Shabbat</i>, 75a, s.v. <i>tefei</i>, regards a <i>pesik reisha</i> as rabbinically forbidden even under such circumstances. This also appears to be the position of <i>Shulḥan Arukh, Oraḥ Ḥayyim</i> 320:18. See <i>Mishnah Berurah, Bi’ur Halakhah</i> 320:18, s.v. <i>yesh mi she-mattir</i>. See also <i>Encyclopedia Talmudit, ibid</i>., note 249.</i>
  The foregoing discussion is limited to acts having unintended effects which, were those effects intended, would be biblically forbidden. Acts of labor that are intrinsically banned only by rabbinic decree represent a different category entirely. Some authorities, including Me'iri, <i>Shabbat</i> 29b and 120b, <i>Terumat ha-Deshen</i>, no. 64, as understood by Magen Avraham and <i>Maḥazit ha-Shekel, Oraḥ Hayyim</i> 314:5, maintain that an act, when performed in a permissible manner, is permitted even if the unintended rabbinically forbidden effect is both a necessary result and beneficial.8<i class="footnote">For additional sources see <i>Encyclopedia Talmudit</i>, VI, 651, note 251.</i>
  Put more succinctly, those authorities maintain that a <i>pesik reisha</i>, even when <i>niḥa leih</i>, is permissible with regard to a rabbinically forbidden act. Other authorities, including <i>Tosafot, Shabbat</i> 103a, <i>Beizah</i> 23a and <i>Bekhorot</i> 24b; Rosh, <i>Bekhorot</i> 3:5; Rashba, <i>Shabbat</i> 120b; and Ran, <i>Shabbat</i> 111a, maintain that the prohibition of an act involving a <i>pesik reisha</i> applies even to rabbinically proscribed acts.9<i class="footnote">See <i>Encyclopedia Talmudit</i>, VI, 651, note 259 and p. 652, note 268.</i> The stringent opinion is accepted by <i>Magen Avraham, Oraḥ Hayyim</i> 314: 5, and <i>Sha'ar ha-Melekh, Hilkhot Shabbat</i> 25:24.10<i class="footnote">See, however, conflicting rulings cited by <i>Yad Malakhi, kelalei ha-dinim</i>, sec. 624.</i> That controversy applies to a <i>pesik reisha de-niḥa leih</i>, i.e., instances in which benefit is derived from the unintended effect. A third body of opinion maintains that even a <i>pesik reisha de-lo niḥa leih</i> is forbidden even when the underlying infraction is only rabbinic in nature11<i class="footnote">See <i>Sha‘ar ha-Melekh, Hilkhot Shabbat</i> 25:24; Ran, <i>Shabbat</i> 111a; and <i>Encyclopedia Talmudit</i>, VI, 652, note 272.</i> while others maintain that when the underlying prohibition is rabbinic in nature and no benefit is received from the unintended effect the act is permissible.12<i class="footnote">See Me’iri, <i>Shabbat</i> 29b; <i>Tosafot, Shabbat</i> 103a; Magen Avraham and <i>Maḥazit ha-Shekel, Oraḥ Ḥayyim</i> 314:5; R. Isaac Elchanan Spektor, <i>Teshuvot Be’er Yiẓḥak, Oraḥ Ḥayyim</i>, no. 15; and R. Raphael Shapiro, <i>Torat Refa’el</i>, no. 27.</i>
  In ruling that a person may allow his image to be captured on a closed-circuit television monitor, Rabbi Feinstein follows the permissive view that maintains that a <i>pesik reisha de-lo niḥa leih</i> is permissible with respect to a rabbinic prohibition. The prohibition against "writing" is, of course, biblical in nature, but is attenuated and becomes reduced to a rabbinically proscribed act in situations in which the writing is not durable as is the case, maintains Rabbi Feinstein, with regard to an image that appears on a television screen.
  Rabbi Rosen forwarded Rabbi Feinstein's reply to Rabbi Joshua Neuwirth with the somewhat tentative comment that Rabbi Feinstein's reply reflects an inaccurate factual presumption because "it is possible" that "in our case" the unintended effect is indeed a matter of interest to the person whose image appears on the monitor and, accordingly, solicited Rabbi Neuwirth's opinion with regard to that objection. Rabbi Neuwirth demurred in deference to the already announced opinion of Rabbi Feinstein but, as will be explained, indicated that, in any event, use of such devices might be permitted because of an entirely different consideration. That exchange of correspondence is included in the same volume of <i>Teḥumin</i>.
  Rabbi Rosen does not identify the basis for his conclusion that producing an image on the monitor may indeed be a matter of interest and benefit to the person whose image is captured. In point of fact, that concern, at least in some instances, is quite cogent. Surveillance systems in public installations and in some apartment complexes may have cameras focused upon multiple unlocked entrances with screens placed in a central location. A person monitoring the screen will take action only if he fails to recognize the individual entering the facility or if his suspicions are aroused in some manner. Alternatively, the entrances may be locked and the system designed solely to alert a guard in instances of an attempt at forced entry. In each of those cases, insofar as the person seen in the screen is concerned, the act of entering the range of the camera yields no benefit.13<i class="footnote">Ironically, the presence of a television camera presents the least significant halakhic problem to a would-be trespasser. The trespasser has a negative interest in being caught by the camera because the result will likely be action that will frustrate his desire to gain entry. For such an individual, the act is assuredly <i>lo niḥa leih</i>. See also <i>supra</i>, note 7.</i> Alternatively, such a system may be designed to enable a doorman, guard or householder to identify a person seeking to enter through a locked door so that the door may be unlocked on behalf of the person seeking admission to the premises. In the latter case, the unintended effect certainly redounds to the benefit of the person whose picture is being projected on the screen. Indeed, if the person seeking to have the door unlocked on his behalf is aware of the presence of the television camera, it may be presumed that there is actual intent on his part to be recognized by projecting his picture.
  The problem is even more serious if it is the owner or householder who installed the device who allows his likeness to be reflected in the television monitor. The owner who installed the security system and allows it to remain functional over <i>Shabbat</i> certainly wishes the system to perform properly, i.e., to capture the image of every passer-by. The owner desires the system to be fully operative in order to prevent intruders from gaining entry and perhaps also in order to take advantage of a reduction in insurance premiums granted when security systems are in place and functional. For such a person, the picture that is produced is not an incidental and unintended effect but is actually and directly intended. A visitor or passer-by has no such concern and hence has no particular desire for the system to remain operational. Even a tenant who has not sought installation of such a device may be unconcerned with regard to issues of security and hence derive no benefit from the images produced. Such a tenant certainly derives no benefit from the projection of his own image or those of his guests.
  Nevertheless, Rabbi Neuwirth reports that the late R. Shlomoh Zalman Auerbach had expressed the opinion that utilization of closed-circuit television is permissible under all circumstances because the image projected on the monitor cannot at all be considered to be encompassed within the category of "writing." That observation reflects a sophisticated understanding of how a television image is actually produced. A television receiver contains a screen whose back is coated with a fluorescent compound. When an image is projected, a narrow beam of electrons bombards the back of the screen in a scanning action. Electrons emitted by a cathode-ray tube cause the coating of the screen at the other end of the tube to light up. A bright spot of light appears wherever the electrons strike the screen. The electron beam scans across the screen in horizontal lines (525 lines per picture in the United States and 625 in Europe). An illusion of motion is created by projecting between 25 and 30 separate pictures per second.
  Apparently, Rabbi Auerbach did not regard images produced by electronically generated fluorescent illumination as even ephemeral "writing" because such a phenomenon involves neither imposition of one substance upon another nor rearrangement of an existing substance, nor does it involve etching letters upon a hard substance.14<i class="footnote">It is of interest to note that inquiries were made of the <i>urim ve-tumim</i> on <i>Shabbat</i>. See Rashi, <i>Eruvin</i> 45a, s.v. <i>i shari</i> and <i>Menaḥot</i> 95b. Although the “writing” that appeared on the breastplate of the High Priest was in the nature of a divine response rather than a human act, that phenomenon would have been somewhat incongruous if it involved an act even rabbinically proscribed as a violation of <i>Shabbat</i> restrictions.</i> This was probably also the intent of Rabbi Feinstein's categorization of the television's image as "even inferior" to transient or ephemeral writing. Rabbi Neuwirth adds the comment that, because such electronic phenomena do not have the halakhic status of "writing," there is no problem in spelling out or erasing the Divine Name on a computer screen.15<i class="footnote">See also R. Chaim Shmerler, <i>Kerem Shlomoh</i>, Kislev 5752. If, however, it is recognized that the electronic image is continuously recreated, it follows that turning off the machine is not an act of erasure but an act preventing ongoing writing. See <i>supra</i>, note 2.</i>
  In an article published in <i>Yeshurun</i>, XI (Elul 5762), 727, R. Levi Yitzchak Halperin, a renowned halakhic expert in the area of electrical technology, compares the image generated by such television cameras to an image reflected by a mirror. Use of a mirror on <i>Shabbat</i> is explicitly permitted by <i>Shulḥan Arukh, Oraḥ Hayyim</i> 302:13. The basic principle is that "writing" that has no duration whatsoever, e.g., tracing letters in the air or on a hard, dry surface, is not within the ambit of the type of non-durable writing forbidden by rabbinic decree. Neither the image reflected in the mirror nor the image captured by the television monitor, survives the completion of the act that causes the image to appear, i.e., the image disappears upon the person's removal of himself from proximity of the mirror or from the range of the camera.
  As will be shown later, R. Moshe Stern, <i>Teshuvot Be'er Mosheh</i>, VI, <i>Kuntres Elektrik</i>, I, no. 82, and VII, <i>Kuntres Elektrik</i>, II, no. 21, unlike other authorities, objects to use of closed-circuit television systems because of <i>ziluta de-Shabbatta</i>, i.e., "demeaning the Sabbath," but is less than unequivocal in banning such use.
  Rabbi Halperin is in fundamental agreement with those who maintain that use of a closed-circuit television camera on <i>Shabbat</i> for surveillance purposes is permissible. Nevertheless, in deference to the position of those authorities who disagree, Rabbi Halperin, <i>Yeshurun</i>, XI, 724, offers a practical solution designed to obviate the possible halakhic problem. He suggests that the camera be positioned so that it is not visible to bypassers and be set to turn itself off periodically for a brief time in order that the act of causing an image to be captured by the camera be unintended and not be in the nature of a <i>pesik reisha</i>.16<i class="footnote">See also <i>Teshuvot Ma‘aseh Ḥoshev</i>, I, no. 12, secs. 20-22 and R. Shlomoh Zalman Auerbach, <i>Ateret Shlomoh</i>, IV, 60-64.</i>
  II. Video Cameras
  Other optical surveillance systems employ video cameras that continuously take pictures on videotape. Such systems are commonly used by banks both in order to deter robbers and to aid in apprehension of criminals. Video cameras are sometimes utilized in private security systems for the same purpose.17<i class="footnote">Rambam rules that the prohibited act is in the category of “writing” but does not rule that it is a form of “dyeing” despite the fact that painting or drawing is accomplished only by effecting a contrast in pigmentation. R. Eliezer David Grunwald, <i>Keren le-David, Oraḥ Ḥayyim</i>, no. 102, observes that a necessary element of “dyeing” as a prohibited form of labor is the desire to effect a change in color just as “squeezing” is defined by <i>Shulḥan Arukh</i> 320:7 as a prohibited act only when undertaken in order to gain access to the liquid thereby expressed. Painting or drawing, argues <i>Keren le-David</i>, is “writing” but not “dyeing” because, even though the form or shape is recognizable only by virtue of a contrast in pigmentation, the person performing such an act is concerned only with producing a recognizable image or shape but not with its color. It would then follow that, according to <i>Keren le-David</i>, an artist who chooses his colors with care and skill precisely because he wishes a particular effect that is contingent upon color will indeed have performed a prohibited act of “dyeing” as well as a prohibited act of “writing.”</i> The permissibility of entering a building in which a video camera is operating on <i>Shabbat</i> is discussed by R. Moshe Stern, <i>Teshuvot Be'er Mosheh</i>, VI, <i>Kuntres Elektrik</i>, I, no. 82 and in VII, <i>Kuntres Elektrik</i>, II, no. 21; R. Shlomoh Zalman Auerbach, in a responsum addressed to R. Ephraim Greenblatt and published in the latter's <i>Rivevot Efrayim</i>, II, no. 247; R. Isaac Liebes, <i>Teshuvot Bet Avi</i>, III, no. 53;18<i class="footnote">The latter responsum was also addressed to R. Ephraim Greenblatt and appears in his <i>Rivevot Efrayim</i>, III, no. 247.</i> and R. David Rosenberg, <i>Ozrot Yerushalayim</i>, no. 233.
  The permissibility of allowing oneself to be photographed on the Sabbath by a conventional camera was discussed much earlier. R. Eliezer David Grunwald, <i>Keren le-David, Oraḥ Hayyim</i>, no. 102, recognizes that an act performed by means of <i>gerama</i>, i.e., only indirectly, is forbidden solely by rabbinic edict. Nevertheless, <i>Keren le-David</i> asserts that a photographer violates the biblical transgression against "writing" even though his act is indirect and in the nature of a <i>gerama</i>, i.e., he merely snaps the shutter of the camera and indirectly causes the film to capture an image but does not directly make a mark by impressing one substance upon another. <i>Keren le-David</i> maintains that an "indirect" act that is both instantaneous with its effect and which also produces a causal nexus by making the efficient cause come into contact with the effected medium rather than vice versa is not regarded as a <i>gerama</i> but as a proximate cause. That principle, he argues, explains the ruling of <i>Magen Avraham, Oraḥ Hayyim</i> 328:53, to the effect that placing a leech upon a patient's skin is forbidden even though unleashing a poisonous snake upon a victim does not constitute an act of capital homicide. In the first case, drawing blood is virtually instantaneous with the placement of a leech; in the second, the bite of a snake and the release of its venom is not immediate.
  Interestingly, in support of that thesis <i>Keren le-David</i> cites a provision with regard to homicide formulated by the Gemara, <i>Sanhedrin</i> 77b and <i>Hullin</i> 16a. The Gemara declares that a perpetrator who renders his victim immobile and then opens a dam so that the release of water causes the victim to drown is guilty of a capital crime provided, according to Rashi, that the immediate gush of water is of a quantity sufficient to cause the drowning. Opening the dam is essentially the removal of a barrier and hence should be regarded as a <i>gerama</i> rather than a direct or proximate cause. Conventional explanations categorize the act as the direct unleashing of pent-up force inherent in the water barricaded by the dam. Rashi, and <i>Yad Ramah, Hullin</i> 16a, understand the terminology of the Gemara literally in categorizing the water as the assassin's "weapon" and in <i>Sanhedrin</i> 77b Rashi explains that the Gemara's definition of the water as the assassin's "arrows" reflects the notion that the immediate force of the water is ascribed to the person who unleashes the water as is the case with regard to a person who unleashes an arrow. In contradistinction, <i>Keren le-David</i> candidly concedes that the cause is indirect in nature but one which has an instantaneous effect and hence, he argues, it is because of its instantaneous effect that this is categorized as a proximate cause rather than as a <i>gerama</i>. Accordingly, <i>Keren le-David</i> points to the example of the release of dammed water as the paradigm for his thesis. <i>Keren le-David</i>'s novel thesis asserting that an instantaneous effect is not to be regarded as produced by <i>gerama</i> was actually formulated much earlier by R. Joseph Saul Nathanson, <i>Teshuvot Sho'el u-Meshiv, Mahadura Tinyana</i>, I, no. 5, and is cited by R. Abraham Menachem Steinberg, <i>Teshuvot Maḥazeh Avraham</i>, I, Oraḥ Hayyim, no. 42, s.v. <i>shuv ra'itti. Sho'el u-Meshiv</i>, however, does not present that view as an unequivocal determination. Rather, he presents that view as a thesis the validity of which he regards as subject to doubt.
  It is significant to note that a quite similar thesis with regard to the concept of <i>gerama</i> in association with Sabbath prohibitions is propounded by R. Chaim Ozer Grodzinski, <i>Teshuvot Aḥi'ezer</i>, III, no. 60, with regard to the nature of the infraction involved in switching on electric lights on <i>Shabbat. Aḥi'ezer</i> rebuts the argument that the act of flipping a light switch is merely a <i>gerama</i> by pointing to the discussion of the Gemara concerning the release of dammed water and by citing the comments of an early-day authority, <i>Yad Ramah, Sanhedrin</i> 77b. <i>Aḥi'ezer</i> then develops a thesis to the effect that any type of labor forbidden on <i>Shabbat</i> that is customarily performed in the mode of a <i>gerama</i> is biblically proscribed. That argument is formulated with regard to electric switches but is equally valid with regard to camera photography.
  R. Shlomoh Zalman Braun, <i>She'arim Mezuyanim be-Halakhah</i>, II, 80:54, has published a letter written to him by R. Jonathan Steif in which that authority, without entering into the issue of <i>gerama</i>, similarly declares taking a photograph to be a biblically prohibited act of "writing." R. Levi Yitzchak Halperin, <i>Teshuvot Ma'aseh Hoshev</i>, II, no. 10 secs. 8-11 and <i>Yeshurun</i>, XI, 724, regards causing one's image to be captured on a video tape on <i>Shabbat</i> as being among the rabbinically proscribed forms of <i>tikkun mana</i> or "fashioning a vessel."
  Although <i>Keren le-David</i> regards the act of taking a picture to be biblically forbidden, he apparently finds no transgression involving prohibited labor in allowing oneself to be photographed. R. Chaim Lehrman, in sec. 8 of the notes appended to his letter of approbation to R. Samuel ha-Kohen Burstein's <i>Minḥat Yom Tov</i> and published as an appendix to that work, states that, although a person who poses for a photograph has not performed an act of "writing," it is arguable that, according to some authorities, he may be culpable for "assisting" (<i>mesayei'a</i>) in the performance of a forbidden act. <i>Taz, Yoreh De'ah</i> 198:21, rules that a woman immersing herself in a mikveh on <i>Shabbat</i> who has forgotten to cut her nails before the advent of the Sabbath may not request a gentile woman to do so for her because it would be necessary for the Jewish woman physically to "assist" in the act by extending and positioning her hand. In formulating that view, <i>Taz</i> argues that the prohibition against allowing the corners of one's beard to be cut by another person involves no more than an act of <i>mesayei'a</i> and serves as a paradigm for all biblical prohibitions. <i>Shakh</i>, in his <i>Nekudat ha-Kesef, ad locum</i>, in disagreeing with <i>Taz</i>, points to the statement of the Gemara, <i>Shabbat</i> 53a and <i>Beizah</i> 22a, declaring that with regard to <i>Shabbat</i> prohibitions "assistance" is immaterial. <i>Taz</i> himself, Oraḥ Hayyim 328:1, raises that issue and distinguishes between various forms of assistance. Such a distinction is explicitly drawn by both Ritva and <i>Shitah Mekubbezet, Beizah</i> 22a. See also R. Zevi Ashkenazi, <i>Teshuvot Hakham Ẓevi</i>, no. 82, who overlooks those sources in resolving the objection voiced by <i>Shakh</i>.19<i class="footnote">For further discussion of <i>Taz</i>’ position regarding physical assistance see the note appended by the son of the author to <i>Teshuvot Noda bi-Yehudah</i>, <i>Mahadura Kamma, Oraḥ Ḥayyim</i>, no. 76 and R. Eliezer Fleckles, <i>Teshuvah me-Ahavah</i>, I, no. 134.</i> Rabbi Lehrman finds support for <i>Taz</i>' position in a ruling of Rambam, <i>Hilkhot Kelei ha-Mikdash</i> 3:11, in which Rambam rules that a Levite who "assists" in performing a priestly service transgresses a biblical commandment and incurs the penalty of death at the hands of Heaven. Accordingly, Rabbi Lehrman asserts that "assistance" that is material and significant in nature is biblically forbidden. Rabbi Lehrman regards positioning oneself and posing for a photograph as no less significant a form of "assistance" than positioning oneself for shaving the corners of one's beard.
  <i>Keren le-David</i> also raises the issue of "assistance" but dismisses the problem with the comment that a picture might be taken at precisely the same spot without anyone's cooperation. That argument, however, is subject to rebuttal on the grounds that, absent that individual's cooperation, an entirely different image would have been produced; hence, he is a <i>mesayei'a</i> to the act that was actually performed.
  R. Isaac Liebes, <i>Bet Avi</i>, III, no. 53, candidly concedes that he can adduce no proof in support of his view, but nevertheless offers the opinion that there can be no culpable "assistance" without tactile contact. In support of <i>Bet Avi'</i>s thesis it may be argued that <i>Taz</i>' position regarding a prohibition against physical "assistance" in a transgression is derived from the biblical paradigm of the prohibition against allowing the corners of one's beard to be shaved. The "assistance" in that paradigm is certainly tactile in nature.
  <i>Bet Avi</i> further opines that "writing" produced other than by a hand is prohibited by rabbinic edict but not by biblical law and that with regard to rabbinically forbidden acts there is no prohibition of <i>mesayei'a</i>. That point is subject to dispute not only because a photograph is snapped by hand but also because writing other than with the dominant hand is not biblically forbidden because it is an "unusual" mode of writing whereas the picture taken by a camera is produced by means of ordinary and usual operation of the camera.20<i class="footnote">This is also the opinion of Rabbi Halperin, <i>Yeshurun</i>, XI, 722f.</i> Of course, the act may be only rabbinically proscribed since it may constitute an act of <i>gerama</i> as has been discussed earlier. <i>Bet Avi</i> himself draws attention to Rambam's statement in his <i>Commentary on the Mishnah, Shabbat</i> 103a, in contradiction to his position in the <i>Mishneh Torah</i>, to the effect that the category of <i>roshem</i>, which includes the creation of a picture or an image, is a category of labor entirely separate from writing and hence it may not be limited to drawing or painting by hand.
  However, raising an entirely different consideration, <i>Keren le-David</i> comments: "Nevertheless, it seems clear that there is a prohibition in the nature of '<i>mimzo ḥefzekha</i>—and [you] shall honor it [the Sabbath], not doing your wont ways nor pursuing your business' (Isaiah 58:13)—which is forbidden as is made clear in [<i>Shulḥan Arukh, Oraḥ Hayyim]</i> 306:1 for it is no less [an infraction] than measuring as is made clear in [Oraḥ Hayyim] 306:7." The phrase "<i>mimzo ḥefzekha"</i> serves to bar any activity on <i>Shabbat</i> pertaining to "your business," i.e., any activity related to commercial matters even in an indirect or preparatory manner. Thus, as spelled out by <i>Shulḥan Arukh, ad locum</i>, it is forbidden to survey one's property in order to plan the morrow's work, to position oneself to leave the city upon the conclusion of the Sabbath, to hire laborers or even to stroll for purposes of locating a horse, wagon, or ship in preparation for a journey to be undertaken after the conclusion of <i>Shabbat</i>.
  It is, however, quite difficult to appreciate a comparison between any of those activities and photography. In context, <i>Keren le-David'</i> responsum addresses the plight of an individual who was being "examined" in some manner by government officials on <i>Shabbat</i> and was required to produce a photograph. Posing on <i>Shabbat</i> for a passport photo would certainly seem to be subsumed in the prohibition against making preparations for a journey on <i>Shabbat</i>. Similarly, posing for a photograph required by government authorities for issuing a license or for some other such purpose would also be forbidden. Although it is odd that <i>Keren le-David</i> does not indicate that a Jew is not permitted to undergo the government "examination" to which reference is made (perhaps because the Jew had no choice with regard to submitting to the interview but might have appeared without an accompanying photograph), it seems to this writer that it is only posing for a photograph for a commercial or "weekday" purpose to which <i>Keren le-David</i> objects. Allowing one's picture to be videotaped by a surveillance system neither requires any particular act on the part of the person other than those ordinarily undertaken in the enjoyment of Sabbath activities nor is the video image designed to advance a commercial or mundane interest. Hence, it seems to this writer that <i>Keren le-David</i> would find surveillance cameras unobjectionable.
  In <i>Be'er Mosheh</i>, VI, Rabbi Stern begins his discussion with a citation of <i>Keren le-David</i>'s view regarding the prohibition against taking a photograph on <i>Shabbat</i>. Apparently misreading this source, <i>Be'er Mosheh</i> implies that the prohibition devolves upon a person allowing himself to be photographed as well.21<i class="footnote">Somewhat incongruously, <i>Be’er Mosheh</i>, VII, <i>Kuntres Elektrik</i>, II, no. 50, permits even a patient not suffering from a serious malady to position himself for X-rays. <i>Be’er Mosheh</i> contends that the image produced by an X-ray machine is not a form of “writing” because “the images are not recognizable and are comprehensible only to individual experts.” Although it is quite true that in many instances only a trained practitioner can “read” an X-ray for the purpose of identifying an anomaly, nevertheless, the X-ray produces an image of an anatomical structure that can be recognized by anyone.</i> For reasons that he does not attempt to explain, <i>Be'er Mosheh</i> maintains that a person who traverses the door of a house protected by a system that is set in place before <i>Shabbat</i> and which automatically photographs each passer-by is in violation of a rabbinic edict rather than of a biblical prohibition. Accordingly, in reliance upon the authorities who maintain that, with regard to a matter that is prohibited only by rabbinic edict, a <i>pesik reisha de-lo niḥa leih</i> is permissible, he finds no fundamental prohibition in situations in which the individual has no desire to be photographed and derives no benefit therefrom. That analysis notwithstanding, <i>Be'er Mosheh</i> regards the act to be forbidden for reasons of <i>"ziluta de-Shabbatta,"</i> i.e., "demeaning the Sabbath." Therefore, <i>Be'er Mosheh</i> advises a person who lives in a dwelling in which such a system is in place and who finds himself powerless to disarm it over <i>Shabbat</i> to find a new dwelling. In the interim, for reasons that he does not spell out, he advises the person to "enter the house walking backwards, or at least sideways, so that the apparatus not photograph him in the manner of making an image."
  In his second discussion, <i>Be'er Mosheh</i>, VII, Rabbi Stern seems to equate video cameras with closed-circuit television systems with regard to all facets of the issue and expresses a somewhat different view. Since his concern is only because of "dishonor of the Sabbath" he modifies his opinion in situations in which the presence of the television monitor is not evident to passers-by or guests and in which there are no children in the house and adds, "Perhaps even if children, young or old, are present in the home and it is possible for the master of the house to secrete the television within the house on Friday in a manner such that the children perceive nothing but he himself can see what he needs to see through a crack or the like…. Perhaps there is indeed no dishonor [of the Sabbath] even if there are children, young or old, in the house for they see such each week and know that no person does anything." It is, however, unclear whether or not <i>Be'er Mosheh</i> would have made this final comment with regard to video cameras. In any event, the many other scholars who examine this issue do not object to use of surveillance systems on the basis of "demeaning the Sabbath."
  Rabbi Liebes permits video surveillance in reliance upon the earliercited view that allowing oneself to be photographed involves only a rabbinic prohibition because he takes it for granted that the benefit is not only unintended but is actually disdained. Accordingly, he regards the act as a <i>pesik reisha de-lo niḥa leih</i> with regard to an otherwise rabbinically proscribed act and rules that such an act is permissible. Nevertheless, he notes that each of those points is subject to dispute and accordingly he counsels that a God-fearing person should not enter a building protected by such a system and certainly should not do so on an ongoing basis.
  R. Shlomoh Zalman Auerbach permits utilization of a video surveillance system for the most fundamental of reasons. In order to elucidate Rabbi Auerbach's ruling it should be noted that when a camera snaps a picture no discernible image is generated on the film. The picture emerges only when the film is developed. Accordingly, taking the picture can hardly be a form of writing. Rabbi Auerbach notes that a person who employs disappearing ink in writing on <i>Shabbat</i> is culpable but declares that this is so only because the writing is discernible as script for at least a very brief period of time and the writing can be retrieved and made to reappear if the requisite procedures are employed. Not so with the case of a photograph since, at the time the picture is taken, nothing appears on the film.22<i class="footnote">Indeed, it would appear that the person developing the film, rather than the photographer, is the one who engages in the act of “writing” and that the photographer has simply caused certain antecedent changes to occur in the film that make it possible later to “write” on the film by means of immersing the film in a chemical solution.</i> Rabbi Auerbach adds, albeit without evidence, that it is "reasonable" (<i>mistaver</i>) to assume that even "writing" of that nature is forbidden by rabbinic decree. Nevertheless, he permits a guest to enter a building protected by a video surveillance system because the "writing" is carried out in an unusual way (<i>ke-le-aḥar yad</i>) coupled with the consideration that, since the image "is desired only by the homeowner but not by the person who enters," the act represents a <i>pesik reisha de-lo niḥa leih</i>.
  As noted earlier, it is not clear to this writer that photography represents an "unusual" act. Nevertheless, since no image is created at the time a photograph is taken, there is reason to question whether capturing a picture on film is prohibited even by rabbinic decree. Moreover, in the final analysis, insofar as a person who derives no benefit from the surveillance system is concerned, the vast majority of rabbinic authorities permit a <i>pesik reisha de-lo niḥa leih</i> with regard to an act involving an underlying rabbinic prohibition and would permit such a person to enter a building protected by an optical surveillance system.
  The earlier described expedient suggested by Rabbi Halperin with regard to the positioning and setting of closed-circuit television systems is also recommended by him for implementation in conjunction with use of video cameras on <i>Shabbat</i>.
  III. Motion Detectors
  Another mode of surveillance involves use of a motion detector that causes lights to turn on when the movement of a person is detected. In isolated areas the resultant illumination prevents intruders from breaking and entering under cover of darkness and at the same time serves to provide a measure of physical safety for persons who would otherwise be entering the house or passing down the street in the dark. Motion detectors are also used in many public buildings, schools, offices, etc. in order to economize on electricity. In some locales installation of such devices in newly constructed buildings is mandated by law as a conservation measure. Motion detectors may employ either passive infrared or ultrasonic technology. Passive infrared technology operates by detecting the difference between infrared energy emitted by a heat-emitting object, e.g., a human body in motion, and the background space. Ultrasound technology uses the Doppler principle and high frequency ultrasound to sense motion within its range. The two technologies may be combined in what is known as dual sensing verification in order to eliminate false triggers.
  The permissibility of entering areas on <i>Shabbat</i> in which electric lights are controlled by motion detectors was first addressed by the late British rabbinic authority, R. Chanoch Dov Padwa, <i>Heshev ha-Efod</i>, III, no. 83. Further discussions by R. Moses Kessler, R. Samuel ha-Levi Woszner, author of <i>Teshuvot Shevet ha-Levi</i>, R. Abraham David Horowitz of Strasburg and R. Yochanan Woszner of Montreal appear in the II Adar 5757 issue of <i>Or Yisra'el</i>. A further item addressing this issue in the form of a letter to the editor by R. Eliezer Falk of Jerusalem was published in the Sivan 5757 issue of the same journal.
  Rabbi Padwa permits ordinary activity in the presence of such devices in reliance upon two separate considerations: 1) the permissive view of the <i>Arukh</i> with regard to a <i>pesik reisha de-lo niḥa leih</i>; 2) the view of Rashba, cited by <i>Magen Avraham, Oraḥ Hayyim</i> 316:11, permitting a person to close the door of a room in which a deer has sought refuge on <i>Shabbat</i> even though, as a result of closing the door, the deer will be "captured." Although neither of those positions is accepted by the codifiers of Halakhah, Rabbi Padwa nevertheless asserts that, taken in combination, they may be relied upon.
  Rabbi Padwa's assumptions are subject to challenge on a number of counts. Rabbi Kessler and Rabbi Horowitz both note that, in point of fact, the illumination is <i>niḥa leih</i>, i.e., the light provides a direct benefit and would presumably be welcomed if not for the possible Sabbath infraction involved. Rabbi Yochanan Woszner, however, asserts that a person may indeed not wish his coming and going to be observed by all and sundry and, when the system is designed to thwart intruders, others may be discomfited by the feeling that light is made to shine upon them because they, too, are under a cloud of suspicion.
  Rashba's permissive view with regard to the unintended "capture" of a deer may represent acceptance of the position of the <i>Arukh</i> regarding a <i>pesik reisha de-lo niḥa leih</i>.23<i class="footnote">See <i>Shiltei ha-Gibborim, Shabbat</i>, chap. 13, sec. 3.</i> Alternatively, Rashba's ruling may reflect a unique consideration limited to the notion of "capture" or be otherwise limited to the case discussed by Rashba. R. Iser Zalman Meltzer, <i>Even he-Azel, Hilkhot Shabbat</i> 1:5-7, s.v. <i>u-be-ikar</i>, for example, explains that, as a halakhic category, "capture," by definition, must be intentional and therefore an animal unintentionally trapped in a room is not "captured." Rabbi Horowitz notes that some authors have distinguished the capture of a deer by closing a door from other forms of <i>pesik reisha</i> on the basis of the fact that no act is performed upon the deer itself.
  There may, however, be additional considerations that would serve to permit use of motion detectors. Many authorities, including R. Shlomoh Zalman Auerbach, <i>Minḥat Shlomoh</i>, I, no. 10, sec. 6, s.v. <i>vegam</i>, rule that an otherwise forbidden <i>pesik reisha</i> is permitted when the act is carried out indirectly.24<i class="footnote">See <i>infra</i>, note 35.</i> However, as noted earlier, many authorities regard all instantaneous effects as direct rather than indirect.
  Rabbi Samuel Woszner, both in his contribution to <i>Or Yisra'el</i> and in his <i>Teshuvot Shevet ha-Levi</i>, III, nos. 41 and 97, develops a rather novel thesis in explaining that not every <i>pesik reisha de-lo niḥa leih</i> is forbidden. A person who severs the head of an animal performs an act upon the animal that causes the animal to die; death of the animal is a change in the animal directly related to the act of severing the head. Similarly, a person who pulls a heavy object along the ground creates a change in the ground by making a hole. Although those acts are forbidden, Rabbi Woszner argues that, if an act is itself ordinary, usual and innocuous and in no way modified on account of, or physically connected to, the prohibited effect, the act is not forbidden even though it necessarily results in a prohibited effect. Stated in other terms, Rabbi Woszner argues that <i>pesik reisha</i> in the nature of an unintended epiphenomenon not contiguous to the act performed is not prohibited.25<i class="footnote">In <i>Shevet ha-Levi</i>, III, no. 97, Rabbi Woszner permits wearing a self-winding watch on <i>Shabbat</i> on the basis of this notion.</i>
  Rabbi Kessler states, not without reason, that he does not understand the distinction formulated by Rabbi Woszner. This writer would express the distinction in a somewhat different manner. As stated by the Gemara, <i>Shabbat</i> 120b, the verse "you shall not do any work on the Sabbath day" (Exodus 20:8) serves to establish that labor is forbidden on <i>Shabbat</i> only if the labor is performed by means of a physical "act" (<i>ma'aseh</i>). A physical act is generally defined as an act involving movement of the body.
  Moreover, not every muscular movement rises to the level of a <i>ma'aseh</i>. A sin-offering is brought in expiation of certain sins but only if they are committed by performance of an "act." The Gemara, <i>Sanhedrin</i> 65a, posits a controversy between the Sages and R. Akiva with regard to whether unwitting blasphemy requires such a sacrifice. The crux of the controversy is whether or not the act of "curling the lips" that is necessary for the fashioning of speech constitutes a <i>ma'aseh</i>. Similarly, the Gemara, <i>Makkot</i> 2b, explains that bearing false witness is not punishable by lashes because mere speech does not constitute a physical act. The Gemara, <i>Bava Mezi'a</i> 90b, records that movement of the lips that produces a tangible physical effect, e.g., a shouted command to animals of different species harnessed together that causes them to move or a vocal order designed to prevent an animal from eating while the animal is engaged in threshing, is regarded by R. Yoḥanan as a punishable offense. Resh Lakish, however, disagrees because he regards the <i>de minimis</i> movement of lips to be below the threshhold level of movement that constitutes a <i>ma'aseh</i>.
  Definition of a <i>ma'aseh</i> as an act involving movement of the body is reflected in a discussion of the Gemara, <i>Bava Kamma</i> 10b, particularly as elucidated by <i>Tosafot, Bava Kamma</i> 10a, s.v. <i>kegon</i>, regarding a person who breaks an object by means of the sheer weight of his body rather than through physical movement. The case discussed involves a number of people seated upon a bench. In initially seating themselves upon the bench they did no harm. However, an additional person sat himself upon the bench with them and the combined weight of all those seated on the bench caused it to collapse. <i>Tosafot</i> cite the position of Rabbeinu Tam who maintains that those previously seated are equally liable together with the last person to seat himself upon the bench who thereby provided the proverbial straw that broke the camel's back. In reflecting upon Rabbeinu Tam's position, it is obvious that the original occupants are not culpable for having seated themselves on the bench since that act yielded no harm. They can be culpable only for failing to rise when the weight became too great for the bench to withstand. But failure to rise is passive in nature and should not give rise to tort liability. Culpability must then result from the fact that an "act" effected by sheer weight is deemed to be tortuous. Indeed, the Gemara, <i>Bava Kamma</i> 27a, declares that a person who causes harm simply as a result of being blown off a roof by the wind is liable for damages. Apparently, movement is not a necessary condition of an "act" but the effect of body weight certainly must be regarded as the outer limit of what may be defined as an "act."26<i class="footnote">For a discussion of whether “weight” constitutes an act with regard to homicide see R. Iser Zalman Meltzer, <i>Even he-Azel, Hilkhot Yesodei ha-Torah</i> 5:1, and R. Levi Yitzchak Halperin, <i>Ma‘aseh u-Gerama be-Halakhah</i> (Jerusalem, 5737), pp. 225ff.</i>
  It is clear from the comments of Rabbeinu Tam that the power generated by sheer mass constitutes an "act." However, the effect of the force of body weight is readily distinguishable from other effects created by the mere presence of a body. Thus, for example, "labor" effected by body heat triggering a heat detector, according to this analysis, would not constitute an "act" since causal effects of body heat do not arise from a <i>ma'aseh</i>.27<i class="footnote">The Gemara, <i>Sukkah</i> 28a, reports: “It was said of Yonatan ben Uziel that, when he sat and was engaged in the study of Torah, a bird flying in the air [over him] was immediately burned.” On this analysis, Yonatan ben Uziel would not have incurred tort liability for destruction of a bird in that manner. Cf., the comment of R. Meir Shapiro cited in Aaron Suraski, <i>Rabbi Meir Shapiro be-Mishnah, be-Omer u-be-Ma‘as</i> (Bnei Brak, 5724), I, 425f. and <i>idem, Niẓoẓei Or ha-Me’ir</i> (Bnei Brak, 5734), p. 215f.</i> Similarly, motion detectors do not produce their desired effect by virtue of force exerted by the body but because of their sensitivity to a change taking place in the person. To put the matter in somewhat different terms, it is not force produced by motion that causes the effect but the apparatus' ability to discern that the person has moved from one spot to another by sensing the presence of body heat and/or the reflection of imperceptible ultrasound waves that yields the effect. Such a phenomenon, it may be argued, does not rise to the threshold level of a <i>ma'aseh</i>. Put more colloquially, a person's mere existence does not qualify as a <i>ma'aseh</i> and, accordingly, any labor caused by a person's mere existence is not prohibited on <i>Shabbat</i>. If this analysis of the notion of <i>ma'aseh</i> is correct, there could be no prohibition in the purely passive act of allowing oneself to be photographed on <i>Shabbat</i>.
  There is, however, at least one authority among early-day decisors who maintains that a forbidden act of labor performed entirely passively by the body is forbidden when such an effect is directly intended.28<i class="footnote">For an example of that view expressed in the responsa of a contemporary authority, see Rabbi Halperin’s discussion of use of a door controlled by an electric eye in his <i>Teshuvot Ma‘aseh Ḥoshev</i>, I, no. 12, secs. 6-15.</i> <i>Teshuvot ha-Rashba</i>, IV, no. 74, cited by <i>Bet Yosef, Oraḥ Hayyim</i> 308:46, addresses the practice, apparently prevalent in his time, of women placing silkworms under their armpits to hatch. Rashba forbids the practice on the Sabbath, both because the worms are <i>mukzah</i> and also because causing the worm to hatch is forbidden. In the preamble to his responsum, Rashba notes that "although [the activity] does not constitute an actual act of labor (<i>she-einah melakhah mamash</i>), nevertheless, it is intentional labor" and concludes with the statement that intentional employment of body heat to effect an act of labor is forbidden. Rashba apparently regards utilization of body heat to perform an act of labor to be forbidden, perhaps by rabbinic decree, even though the act is entirely passive and hence "not an actual act of labor" but regards such conduct to be forbidden only when the effect is caused intentionally.29<i class="footnote">Cf., <i>Teshuvot Shevet ha-Levi</i>, III, 97.</i>
  It seems to this writer that the concept that an act passively performed does not constitute a biblically forbidden form of labor is inherent in the commentary of Ralbag to Exodus 20:9. Ralbag states, "It is further clear that eating is not [a forbidden form of] labor; rather it enters into the category of natural acts for all living creatures perform this act." Ralbag's comments, if taken literally, are problematic, to say the least. Trapping or capturing animals is a forbidden form of labor on <i>Shabbat</i> despite the fact that it is an activity in which brute animals also engage. Suckling a lactating animal is a form of expressing milk that is forbidden of <i>Shabbat</i>30<i class="footnote">Such suckling is indeed only rabbinically forbidden but solely because it is not a “natural” way for man to express milk rather than because the act is not at all a form of labor.</i> despite the fact that animals also obtain milk by nursing.31<i class="footnote">See R. Shlomoh Fisher, <i>Bet Yishai</i>, I, no. 17 and R. Isaac Malzan, <i>Shevitat ha-Shabbat, Melekhet Dash</i>, sec. 99.</i>
  Ralbag may, however, be understood as asserting that any natural act performed in common with lower animals does not constitute a form of labor provided that the act is final rather than instrumental in nature. Eating is clearly such an act. Capturing an animal, when carried out by a human being, is far different from capture of one animal by another. The animal consumes its prey immediately; a man does not. For man, the normal way for obtaining milk is by a process of manual milking, an act that is only preparatory to drinking the milk, as opposed to an act of suckling in which the purpose is achieved immediately.32<i class="footnote">This understanding of Ralbag is reflected in a note by R. Ya’akov Leib Levy on Exodus 22:9 in the Mossad Harav Kook edition of Ralbag’s commentary on the Torah, <i>Perushei ha-Torah le-Rabbenu Levi ben Gershom</i> (Ralbag) (Jerusalem, 5755) edited by Rabbi Levy.</i> It therefore stands to reason that activities yielding effects produced as a result of entirely usual human and animal function, e.g., locomotion and the giving off of body heat, and not designed for any further purpose should not be among activities forbidden on <i>Shabbat</i>.
  Rabbi Kessler finds yet additional grounds to permit use of motion detectors to provide external illumination. A person passing through an area protected by sensory devices may be certain that the lights will go on but it is entirely unlikely that he will know which particular step will trigger the lights. Therefore, each discrete step constitutes a doubtful <i>pesik reisha</i>. Such a situation is comparable to another scenario discussed by earlier sources. In the case of a box housing flies from which many, but possibly not all, the flies have been observed to exit, <i>Taz, Oraḥ Hayyim</i> 316:3, rules that it is not necessary to examine the inside of the box before placing a lid upon it despite the fact that it is possible that some flies may remain in the box. If that were so, placing the lid upon the box and thereby preventing any remaining fly from escaping would constitute a prohibited act of "capture." Since there is no intent to capture and it is doubtful that there are any flies in the box that might be captured, the act constitutes a merely doubtful <i>pesik reisha</i>. Accordingly, <i>Taz</i> permits the closing of the box. <i>Taz</i> maintains that intent cannot be imputed in cases of empirical doubt and hence rules that a doubtful <i>pesik reisha</i> is an entirely permissible <i>davar she-eino mitkaven. Mishnah Berurah, Bi'ur Halakhah</i> 316: 3, s.v. <i>ve-lakhen</i>, cites a number of early-day authorities whose comments evidence their espousal of an identical view.33<i class="footnote">See also <i>Avnei Nezer, Oraḥ Ḥayyim</i>, no. 251.</i> That view, however, is not universally accepted.34<i class="footnote">See the glosses of R. Akiva Eger to <i>Yoreh De‘ah</i> 87:6 and 92:2; <i>Shulḥan Arukh ha-Rav, Kuntres Aḥaron</i> 277:1; and <i>Teshuvot Ḥelkat Yo’av</i>, I, no. 8. See also <i>Encyclopedia Talmudit</i>, VI, 652-655.</i>
  One aspect of the operation of outdoor motion detectors seems to have evaded all of these scholars. Unlike indoor motion detectors which are designed to cause lights to go on virtually instantaneously, outdoor motion detectors generally have a delayed time feature. The purpose of a built-in time delay is to prevent even minimal motion or momentary vibration unlikely to have been produced by a human being from triggering the mechanism that causes the lights to go on and off. Depending upon the particular device, the delay may be as brief as fifteen seconds and as long as thirty minutes. When there is a time delay effected by a timer, the act triggering the mechanism does not directly cause the lights to turn on. Instead it causes the timing device to wait a pre-determined period of time and, upon expiration of that time period, a separate action effected by the timing device turns on the lights. An act that generates a second act in order to create an effect has the halakhic status of a <i>gerama</i>. Rema, Oraḥ Hayyim 334:22, permits an act performed in the manner of gerama only for a "great need." However, <i>Taz, Oraḥ Hayyim</i> 334:6, permits an act in the form of <i>gerama</i> for even a less serious need. Other authorities, it must be remembered, permit a <i>pesik reisha</i> with regard to all rabbinic prohibition and hence those authorities would permit a <i>pesik reisha</i> performed by means of <i>gerama</i>.35<i class="footnote">See also R. Aryeh Zevi Frommer, <i>Teshuvot Ereẓ Ẓevi</i>, I, no. 112, s.v. <i>mi-kol makom</i>; R. Shlomoh Zalman Auerbach, <i>Koveẓ Ma’amarim be-Inyanei Ḥashmal</i> (Jerusalem, 5738), p. 25; R. Levi Yitzchak Halperin, <i>Teshuvot Ma‘aseh Ḥoshev</i>, I, no. 12, sec. 5; and R. Joshua Neuwirth, <i>Shemirat Shabbat ke-Hilkhatah</i> 12:18, note 51.</i>
  Rabbi Falk expresses the view that, even if motion sensitive systems may not be intentionally used on <i>Shabbat</i>, a person about to enter the range of a detector need not be cautioned that by doing so he will cause a light to go on. Inadvertent and unknowing tripping of the switch, he contends, involves no Sabbath infraction whatsoever. That thesis is based upon the definition of <i>shogeg</i>, i.e., inadvertent transgression, insofar as <i>Shabbat</i> laws are concerned. An act of inadvertent <i>Shabbat</i> transgression for which a sacrifice in expiation of sin is required is defined as a forbidden act of labor performed by a person who is either unaware that such an act is forbidden or is unaware that the day on which the act is being performed is actually the Sabbath day.
  A person who knows full well that it is <i>Shabbat</i> and is also fully aware of the forbidden status of the act but is ignorant with regard to the physical nature of the act he is performing is not a <i>shogeg</i>. Thus, a person who cuts a fruit or vegetable in the belief that it has already been plucked from the ground only to discover after the act was performed that it was still attached at the time of cutting is not a <i>shogeg</i>. A person performing such an act is termed a "<i>mitasek</i>" rather than a "<i>shogeg</i>" and is not required to offer a sacrifice for purposes of expiation. R. Jacob of Lissa, <i>Mekor Hayyim, Oraḥ Hayyim</i> 431, maintains that an act committed in the form of <i>mitasek</i> is entirely innocuous and requires no atonement whatsoever.36<i class="footnote">This is also the position of R. Chanoch Henach Eiges, <i>Maharḥeshet</i>, I, no. 42.</i> Thus, according to <i>Mekor Hayyim</i>, a person who knows that the fruit or vegetable is still attached to the ground need have no compunction in directing someone who mistakenly believes it to have been severed from the ground to cut the fruit or vegetable since the person who performs that act commits no infraction whatsoever. R. Akiva Eger, both in <i>Teshuvot R. Akiva Eger</i>, no. 8 and in his <i>Hiddushei R. Akiva Eger, Bava Kamma</i> 26b, disagrees and maintains that, although the infraction is less serious than a <i>shogeg</i> and requires no sacrificial expiation, it nevertheless constitutes a transgression for which atonement is necessary.37<i class="footnote">This is also the position of R. Abraham Borenstein, <i>Eglei Tal, Ofeh</i>, no. 16, sec. 33:3. Cf., however, <i>Eglei Tal, Koẓer</i>, no. 12, sec. 24:12.</i>
  Rabbi Falk argues that, even according to R. Akiva Eger, an infraction occurs only when the person at least intends to perform an act of cutting but is ignorant of the status of the object he is cutting. However a person who does not at all intend to cut any object incurs no infraction if he severs a plant still attached to the ground because such an act is mindless and totally unintended and hence is not a <i>melekhet maḥashevet</i>, i.e., a "mindful act." A person acting in that manner is ignorant not merely of incidental details and circumstances surrounding his act but is ignorant of the very nature of the act.38<i class="footnote">Cf., however, <i>Teshuvot Oneg Yom Tov, Oraḥ Ḥayyim</i>, no. 20, who maintains that even such an act constitutes a transgression according to R. Akiva Eger.</i> R. Akiva Eger concedes that such an act, when performed on <i>Shabbat</i>, is not a <i>melekhet maḥashavet</i> and entails no biblical violation. R. Akiva Eger, however, acknowledges that an otherwise prohibited act that is not performed as a <i>melekhet maḥashevet</i> is prohibited by rabbinic edict. Applying this principle to motion detectors, it is evident that a person who is ignorant of the presence of the detector is totally unaware of the nature of his act and hence his situation is comparable to that of a person who has no intention at all to cut fruit.
  A similar point is made, albeit tentatively, by R. Shlomoh Zalman Auerbach, <i>Minḥat Shlomoh</i>, I, no. 91, sec. 9, s.v. <i>bram</i>. Rabbi Auerbach further suggests that an act in the nature of <i>mitasek</i> that produces a forbidden effect only in the form of a <i>pesik reisha de-lo niḥa leih</i> is entirely innocuous even according to R. Akiva Eger.39<i class="footnote">See also the letter written by R. Shlomoh Zalman Auerbach published in <i>Me’or ha-Shabbat</i>, I, 624 as well as <i>Me’or ha-Shabbat</i>, chap. 18, notes 16, 55, 65 and 100 and R. Joshua Neuwirth, <i>Shemirat Shabbat ke-Hilkhatah</i>, 10:16, note 44.</i> Rabbi Auerbach argues that the rabbinic prohibition attendant upon a mitasek does not apply when the proscribed result occurs only in the nature of a <i>pesik reisha de-lo niḥa leih</i>. The example he gives is that of a person who opens a refrigerator door on <i>Shabbat</i> on the assumption that the electric bulb has been removed. The act is clearly a <i>mitasek</i> since the person opening the door has no knowledge of the presence of a functioning light bulb. Causing the light to go on constitutes a <i>pesik reisha</i> since the person's intention is only to open the door but not to release the button controlling the light.40<i class="footnote">Rabbi Auerbach expresses reservations with regard to this point. He suggests that, since opening the door is the usual way of turning on a refrigerator light and release of the button is accomplished directly by opening the door, opening the refrigerator door and releasing the button controlling the light may constitute two discrete acts performed simultaneously. If so, causing the light to go on is an independent <i>mitasek</i> and not a <i>pesik reisha</i> of opening the door.</i> A person who is intent only upon walking in a certain area and is unaware of the presence of a motion detector is a <i>mitasek</i> and the unintentional effect of the light being turned on is a <i>pesik reisha</i> of that <i>mitasek</i>.
  
  Chapter V Use of Automatic Telephone Answering and Fax Machines on Shabbat
  
  <i>Reflect upon three things and you will not come to sin: Know what is above you—…an ear that hears…</i>.
  AVOT 2:1
  The propriety of the use of a fax machine on <i>Shabbat</i> has been the subject of numerous discussions over the course of the past decade or so. The question has been addressed by R. Baruch Leizerowsky, <i>Ha-Pardes</i>, Iyar 5750; R. Pinchas Abraham Meyers, Chief Rabbi of the Hague, <i>Ha-Pardes</i>, Tishri 5751; R Israel Meir Lau, the former Ashkenazic Chief Rabbi of Israel, <i>Teḥumin</i>, vol. XII (5751); R. Levi Yitzchak Raskin of London, <i>Oholei Shem</i>, Elul 5751; R. Shlomoh Yitzchak Birnbaum, <i>Ha-Ma'or</i>, Tishri-Heshvan 5754; R. Meir Brandsdorfer, <i>Mevakshei Torah</i>, vol. 2, no. 8 (Tishri 5754); R. Shimon Moshe Diskin, <i>Mevakshei Torah</i>, vol. 2, no. 9 (Heshvan 5754); R. Yisra'el Pesach Feinhandler, <i>Oraita</i>, vol. XVII (5756); R. Yechezkel Grubner, <i>Knesset Yeḥezkel</i> (Jerusalem, 5756), nos. 25-27; R. Mordecai Savitsky, <i>Or Yisra'el</i>, II Adar 5759; and R. Ya'akov Shlomoh Moseson, <i>Or Yisra'el</i>, Tishri 5759, as well as by R. Chanoch Dov Padwa, <i>Teshuvot Heshev ha-Efod</i>, III, no. 86 and R. Isaac Liebes, <i>Teshuvot Bet Avi</i>, V, no. 75.1<i class="footnote">The articles appearing in <i>Ha-Pardes, Ha-Ma’or, Oholei Shem, Mevakshei Torah, Knesset Yeḥezkel</i> and <i>Or Yisra’el</i>, II Adar 5759, were written in response to a query by R. Abraham Moses Krauss, formerly a member of the <i>Bobover kollel</i> in Antwerp and now of London. I am indebted to R. Moshe Shapiro of the Mendel Gottesman Library of Yeshiva University and to my son, R. Moshe Bleich, for bringing a number of these sources to my attention.</i> A brief treatment of this question is also presented by R. Meir Just, formerly Chief Rabbi of Amsterdam, in chapter three of a recently published slim volume of responsa entitled <i>Imrei Me'ir</i> (Amsterdam, 5760).
  Use of telephone answering machines on the Sabbath, a matter that involves essentially the same issues, has previously been addressed by R. Ya'akov Breisch, <i>Teshuvot Helkat Ya'akov</i>, III, no. 94; R. Yitzchak Ya'akov Weisz, <i>Teshuvot Minḥat Yizhak</i>, V, no. 14; R. Isaac Liebes, <i>Teshuvot Bet Avi</i>, II, no. 54 and IV, no. 69; R. Moshe Stern, <i>Teshuvot Be'er Mosheh</i>, VI, no. 3; and R. Samuel ha-Levi Woszner, <i>Teshuvot Shevet ha-Levi</i>, V, no. 28. Both issues are discussed by R. Abraham David Horowitz, <i>Kinyan Torah be-Halakhah</i>, VI, no. 17.
  While in the assessment of this writer the weight of rabbinic opinion permits use of these devices, the published discussions merit analysis. Those discussions focus upon a variety of issues concerning Sabbath laws that are themselves both interesting and significant.
  I. Problems in Connecting the Device
  1. Forbidden Labor
  In <i>Helkat Ya'akov</i>, III, no. 94, Rabbi Breisch expresses tentative willingness to permit use of an answering machine provided it is not set on Friday for use on <i>Shabbat</i>. Rabbi Weisz, <i>Minḥat Yizḥak</i>, V, no. 14, similarly finds the use of an answering machine to be somewhat problematic if it is specifically connected in order to operate on <i>Shabbat</i>. As recorded in <i>Shulḥan Arukh, Oraḥ Hayyim</i> 265:4, it is forbidden to place water in an oil lamp before <i>Shabbat</i> so that the flame will be extinguished upon reaching the water during <i>Shabbat. Helkat Ya'akov</i>'s concern is that use of an electric answering machine on <i>Shabbat</i> entails creation and extinguishing of sparks.2<i class="footnote"><i>Ḥelkat Ya‘akov</i> clearly equates creation and extinguishing of sparks with the creation and extinguishing of a flame. That question is, however, the subject of some controversy among contemporary rabbinic scholars. For a discussion of the issue see <i>Encyclopedia Talmudit</i>, XVIII, 171-173.</i> Despite the fact that in <i>Helkat Ya'akov</i>, I, no. 49, R. Breisch permits use of an automatic timer to turn electric lights on and off on <i>Shabbat</i>, he asserts that such use of a timer is permitted only for the "honor" and "delight" of <i>Shabbat</i> but not for other purposes.
  Assuming that sparks are indeed generated in the course of completing electric circuits in such an apparatus, <i>Helkat Ya'akov</i>'s reasoning is nevertheless difficult to follow. Connecting the answering machine is not at all the proximate cause of extinguishing sparks on <i>Shabbat</i> as is the case with regard to placing water in a lamp so that the water will extinguish the flame. The sparks produced by an answering machine are caused, not in the act of attaching or setting the machine, but by the person telephoning on <i>Shabbat</i>. Moreover, <i>Helkat Ya'akov</i> concedes that, once the answering machine has been attached for use during the week, it need not be disconnected before <i>Shabbat</i>. Accordingly, use of such a machine should always be permitted since it is certain that the answering device will perforce be connected some time before <i>Shabbat</i> and thus is designed to answer any incoming call from the moment of connection.
  Rabbi Horowitz, <i>Kinyan Torah be-Halakhah</i>, VI, no. 17, cites a highly novel comment of <i>Hatam Sofer</i> in the latter's novellae on <i>Shabbat</i> 18a on the basis of which he forbids the use of both automatic answering and fax machines. Although a Jew need not be concerned that his utensils "rest" on the Sabbath, <i>Hatam Sofer</i> asserts that this is only the case when the utensil performs an act of labor without human assistance. However, argues <i>Hatam Sofer</i>, a Jew may not permit his property to be utilized in conjunction with an act of labor performed on <i>Shabbat</i> by a person even if that act of labor is performed by a non-Jew. Since answering and fax machines are designed to perform acts of labor initiated by the caller or the sender of the fax, use of such devices is inconsistent with the thesis advanced by <i>Hatam Sofer</i>.
  2. Placing a Stumbling Block
  <i>Minḥat Yizḥak</i>, V, no. 14, suggests that utilization of an answering machine may be tantamount to "placing a stumbling block before the blind" since a non-observant Jew may leave a message on the Sabbath. <i>Pri Megadim, Oraḥ Hayyim, Eshel Avraham</i> 443:5, citing <i>Mishneh le-Melekh, Hilkhot Kela'im</i> 1:6, asserts that, according to Rambam, when removal of a stumbling block is feasible, even passive non-intervention constitutes a transgression of that prohibition.3<i class="footnote">See also <i>Sedei Ḥemed, Kuntres ha-Kelalim, Ma‘arekhet Vav, klal</i> 26, sec. 25.</i> A recording directing the person telephoning to leave a message is an even more direct placement of a stumbling block. Nevertheless, <i>Minḥat Yizḥak</i> finds no reason to forbid use of an answering machine on that account. He regards the matter as comparable to a person who proffers a glass of wine while both he and the Nazarite are standing on the same bank of a river. Since the Nazarite could reach the wine himself if he so desired, the act of handing the wine to him is proscribed only by virtue of rabbinic edict. Similarly, <i>Minḥat Yizḥak</i> presumably reasons that since there is no actual facilitation of the performance of a forbidden act, any assistance rendered is only rabbinically prohibited.4<i class="footnote"><i>Shakh, Yoreh De‘ah</i> 151:6, asserts that the prohibition against rendering such assistance is rabbinically forbidden as an extension of the obligation regarding admonition (<i>tokhaḥah</i>) recorded in Leviticus 19:17. Since there is no obligation of admonition with regard to an apostate or a heretic, if present-day Sabbath violators are deemed to be in that category, the rabbinic prohibition against rendering indirect assistance is not applicable. Numerous authorities, including R. Jacob Ettlinger, <i>Teshuvot Binyan Ẓion he-Ḥadashot</i>, no. 23; R. David Zevi Hoffmann, <i>Melammed le-Ho’il, Oraḥ Ḥayyim</i>, no. 29; and R. Moshe Feinstein, <i>Iggerot Mosheh, Even ha-Ezer</i>, II, no. 20, <i>Oraḥ Ḥayyim</i>, I, no. 37, and <i>Yoreh De‘ah</i>, II, no. 8, maintain that contemporary Sabbath desecrators cannot automatically be regarded in that light. See also R. Yechezkel Landau, <i>Dagul me-Revavah</i>, in a comment on <i>Shakh, ad locum</i>, who understands <i>Shakh</i>’s position as encompassing all willful transgressors. Cf., however, <i>Magen Avraham, Oraḥ Ḥayyim</i> 347:4 and Mishnah Berurah 147:7, who disagree with <i>Shakh</i>’s ruling.</i> Such assistance, argues <i>Minḥat Yizḥak</i>, is rabbinically proscribed only when it is a certainty that it will aid a transgressor.5<i class="footnote">See also <i>Birkat Mosheh, Kuntres ha-Teshuvot</i>, no. 21 and R. Shlomoh Kluger, <i>Teshuvot Tuv Ta‘am va-Da‘at, Mahadura Telita’a</i>, II, no. 50. Some authorities, including Ritva, <i>Avodah Zarah</i> 15b, maintain that even a biblically proscribed placement of a stumbling block is permitted when it is not certain that a transgression will result. See R. Yitzchak Eliyahu Adler, <i>Lifnei Iver</i> (<i>Ofakim</i>, 5749), chap. 13. See also R. Zevi Pesach Frank, <i>Teshuvot Har Ẓevi, Oraḥ Ḥayyim</i>, no. 125.</i> Accordingly, since it is not at all clear that a Jew will telephone on <i>Shabbat, Minḥat Yizḥak</i> permits use of an answering machine to record telephone messages over the course of <i>Shabbat</i>. <i>Shevet ha-Levi</i>, V, no. 28 and <i>Bet Avi</i>, II, no. 54 and IV, no. 69, similarly find no problem with the use of an answering machine on <i>Shabbat</i>.
  The issue of "placing a stumbling block before the blind" is dismissed for a more fundamental reason by Rabbi Feinhandler in his contribution to <i>Oraita</i>. The prohibition, argues Rabbi Feinhandler, is limited to physically assisting another individual in committing a transgression or in proffering a forbidden substance to another person for purposes of transgression. A person performing an act or acquiring an object for his own benefit is not placing a stumbling block before another; rather, the second party who improperly seizes something not intended for him creates his own stumbling block. The fax machine is connected for the benefit of its owner and made available to non-Jews for their use. Accordingly, unauthorized and undesired use by a Jew does not reflect a violation of the prohibition against placing a stumbling block before the blind. The effect of Rabbi Feinhandler's argument is to render use of a fax machine permissible even in situations in which a Jew has indicated in advance his intention to send a fax on <i>Shabbat</i>. Rabbi Grubner, <i>Knesset Yeḥezkel</i>, no. 26, sec. 4, similarly remarks that there is no transgression of the prohibition in a situation in which "the Nazarite comes to the house of his friend and of his own accord takes wine."
  3. The Pre-Recorded Message
  Use of a fax machine to receive fax messages on <i>Shabbat</i> in the conventional manner involves an additional problem. The generation of a fax message involves an act of "writing." A directive even to a non-Jew to perform a forbidden act on <i>Shabbat</i> for the benefit of a Jew is forbidden. Thus, a pre-recorded message directing the caller to transmit the fax might constitute a directive to perform a forbidden act. Nevertheless, once it is established that the fax machine need not be disconnected, it seems to this writer that a pre-recorded message indicating that a fax can be sent is not a directive to the caller to perform that act on <i>Shabbat</i>. Hence, the caller who sends a fax on <i>Shabbat</i> does so at his own discretion at a time when the act cannot be prevented by the Jewish recipient.6<i class="footnote">Cf., <i>Minḥat Yiẓḥak</i>, V, no. 14, sec. 7.</i>
  4. Noise Emitted by the Device
  Rabbi Feinhandler considers the possibility of a problem posed by the fact that a fax machine, when connected, may emit a faint humming sound. Rema, Oraḥ Hayyim 252:5 rules that kernels of wheat may not be placed in a water mill to be ground over the course of <i>Shabbat</i> without further human involvement because a person hearing the noise generated by the grinding will suspect that the Jew is manually grinding wheat on <i>Shabbat</i>. <i>Bet Avi</i>, V, no. 75, expresses concern for "degradation of the Sabbath" (<i>ziluta de-Shabbatta</i>) and permits use of a fax machine only if it is kept in a locked room so that receipt of a fax will be neither heard nor seen. Rabbi Feinhandler notes that noise quite similar to that produced by a fax machine is also emitted by a refrigerator and dismisses the problem with the observation that the prohibition is limited to situations involving loud noise clearly audible from a distance. It should also be noted that Rema explicitly permits use of a clock that announces the time "since everyone knows that the practice is to prepare it the day before." The same is certainly true of appliances such as refrigerators and fax machines that remain in constant operation.
  5. Additional Considerations
  <i>Helkat Ya'akov</i> expresses disapproval of use of telephone answering machines on <i>Shabbat</i>, particularly when used for business purposes. <i>Helkat Ya'akov</i> somewhat tentatively suggests that the mere fact that some commercial affairs are conducted on <i>Shabbat</i>, albeit automatically and without any human involvement, is forbidden according to Ramban's interpretation of the positive commandment of <i>shabbaton</i> as presented in the latter's commentary on Leviticus 23:24. Ramban develops the thesis that the commandment to observe a day of rest generates restrictions beyond those established by the prohibition of specific forms of labor. Ramban notes that a person might engage in normal mundane activities the entire Sabbath day without committing an infraction involving transgression of the prohibition against forbidden forms of labor. Accordingly, declares Ramban, the commandment with regard to observing a day of rest is designed to assure that the day be "a day of repose and rest, not a day of travail." Although Ramban's comments refer only to human activities that are mundane in nature, <i>Helkat Ya'akov</i> seeks to interpret them as encompassing anything that would mar the spirit of the day.
  <i>Helkat Ya'akov</i> further asserts that such matters constitute prohibited "weekday activities." <i>Helkat Ya'akov</i> also contends that, in the eyes of the untutored, use of such devices also appears to involve activities prohibited on <i>Shabbat</i>. Moreover, <i>Helkat Ya'akov</i> regards such matters as a violation of the commandment to "Remember the Sabbath day to keep it holy" (Exodus 20:8) that mandates that "your actions on <i>Shabbat</i> shall not be as [your actions] on a weekday."7<i class="footnote">Cf., <i>Shabbat</i> 113a and 113b. The Gemara cites the verse “and you shall honor it, not doing your wonted ways, nor pursuing your business, nor speaking thereof” (Isaiah 58:13) rather than Exodus 20:8 and proceeds to interpret the verse as follows: “ ‘And you shall honor if’—that your Sabbath clothing should not be as your weekday clothing; ‘nor doing your wonted ways’—your Sabbath gait should not be as your weekday gait; ‘nor pursuing your business’—your business is prohibited [but] the business of Heaven is permitted; ‘nor speaking thereof’—your Sabbath conversation should not be as your weekday conversation.”</i> Those comments are cited with apparent approbation by <i>Minḥat Yizḥak</i>.8<i class="footnote">See also <i>Minḥat Yiẓḥak</i>, I, no. 107 and III, no. 38.</i> <i>Shevet ha-Levi</i>, on the other hand, dismisses the notion that the use of an answering machine on <i>Shabbat</i> might constitute a prohibited form of commercial activity with a <i>reductio ad absurdum</i>: Were use of answering machines forbidden, making a mailbox available for delivery of mail on <i>Shabbat</i> should also be forbidden for the identical reason.
  Rabbi Brandsdorfer goes even further in asserting that even if it is certain that no fax will be received on <i>Shabbat</i> the machine should nevertheless be disconnected. In support of that extreme view he cites the terminology employed by <i>Mekhilta, Ki Tissa, parashah</i> 1. The <i>Mekhilta</i> declares that <i>Shabbat</i> enhances the holiness of Israel. By virtue of the fact that a Jew's "store is closed on <i>Shabbat</i> … he testifies that [God] created His universe in six days." Rabbi Brandsdorfer asserts that disconnecting a fax machine similarly constitutes such testimony.
  A number of other rabbinic writers who have addressed this question also advise against use of such devices, albeit for reasons that are less than compelling. Rabbi Grubner notes that R. Moshe Feinstein, <i>Am ha-Torah</i>, no. 9 (5739), reprinted in <i>Iggerot Mosheh, Oraḥ Hayyim</i>, IV, no. 60, expressed grave reservations with regard to use of automatic devices on <i>Shabbat</i>. However, that view has not been widely accepted among halakhic decisors. Automatic transmission of a fax message on <i>Shabbat</i> is also forbidden by Rabbi Birnbaum, in his article in <i>Ha-Ma'or</i>. In his brief contribution to <i>Or Yisra'el</i>, Rabbi Savitsky recognizes that the practice is permissible but declares that such is not the wont of the pious. Citing <i>Helkat Ya'akov</i>'s earlier discussed remarks with regard to telephone answering machines, Rabbi Raskin, in his article in <i>Oholei Shem</i>, observes that their use would serve to denigrate the sanctity of the Sabbath. In his contribution to <i>Ha-Pardes</i>, Rabbi Meyers concedes that there are grounds to permit a fax machine to remain operational over <i>Shabbat</i> but nevertheless advises that the machine be turned off since allowing it to remain connected may lead to serious transgression. Rabbi Padwa, <i>Teshuvot Heshev ha-Efod</i>, III, no. 86, comments cryptically that any person who employs a fax machine on <i>Shabbat</i> will "undoubtedly … come to severe transgressions." However, even were there to be cogent concern with regard to possible transgression, in the absence of a statutory basis, the practice may only be discouraged but should not be banned. Taken collectively, the considerations addressed by these writers serve at most to establish grounds for eschewing use of such devices as a pietistic practice but fall short of establishing a normative prohibition.
  II. Transmission over Different Time Zones
  It is also permissible to transmit a fax before or after <i>Shabbat</i> even though it is <i>Shabbat</i> in the locale in which the fax is received, provided that transmission of the fax will not lead to desecration of the Sabbath on the part of the recipient. In addition to the earlier-cited authors that question is also addressed by R. Shlomoh Wahrman, <i>She'erit Yosef</i>, VI, no. 4, published as an appendix to his <i>Orot Hag ha-Sukkot</i> (New York, 5760) and is briefly noted by R. Ben-Zion Abba Sha'ul, <i>Or le-Ẓion</i> (Jerusalem, 5747), I, Oraḥ Hayyim, no. 14. The basic principle is that forbidden forms of labor are prohibited only when the physical act is performed on <i>Shabbat</i>. Thus, to take the classic example addressed by <i>Nimukei Yosef, Bava Kamma</i> 23a, a person may light a candle on Friday even though it will continue to burn on the Sabbath, since the act of kindling is performed on a weekday.9<i class="footnote">See also <i>Netivot ha-Mishpat</i> 348:4 and R. Elchanan Wasserman, <i>Koveẓ Shi‘urim, Beiẓah</i>, sec. 49.</i> For the same reason <i>Shulḥan Arukh, Oraḥ Hayyim</i> 252:5, rules that one may open an irrigation canal on Friday and allow the water to flow through the garden on <i>Shabbat</i>. Similarly, a physical act performed in a locale in which it is a weekday, even though its effect is actualized in a locale in which it is <i>Shabbat</i>, is entirely permissible.
  Although it is clearly permissible to send a fax before or after <i>Shabbat</i> to a locale in which it is <i>Shabbat</i>, Rabbi Brandsdorfer, <i>Mevakshei Torah</i>, vol. 2, no. 8, questions whether the fax may be read by the recipient. Rabbi Brandsdorfer draws an analogy to the situation of a person who lives in the Diaspora who must observe the second day of <i>Yom Tov</i> even when visiting <i>Erez Yisra'el</i>. According to most authorities, such a person may not derive benefit from an act that he himself may not perform but which is performed on his behalf by a resident of <i>Erez Yisra'el</i> for whom the day is not <i>Yom Tov</i>.
  Responding in the following issue of <i>Mevakshei Torah</i>, Rabbi Diskin, a <i>rosh yeshivah</i> at Yeshivat Kol Torah and the author of <i>Mas'at ha-Melekh</i> on the Rambam's <i>Mishneh Torah</i>, cogently distinguishes between the two situations. For the resident of the Diaspora the second day of <i>Yom Tov</i> is a day on which forbidden forms of labor may not be performed. Hence any labor performed on that person's behalf was performed on a day that, for that individual, is <i>Yom Tov</i>. The recipient of a fax on <i>Shabbat</i> sent from a locale where it is not <i>Shabbat</i> derives benefit from an act performed in a place in which it is not <i>Shabbat</i> for anyone. For all persons, <i>Shabbat</i> is determined by the beginning and end of the seventh day at a particular latitude and longitude.10<i class="footnote">See <i>Seforno</i>, Genesis 31:16; R. David ibn Zimra, <i>Teshuvot Radvaz</i>, I, no. 76; R. Israel Lipschutz, <i>Tiferet Yisra’el, Berakhot</i>, note appended to <i>Bo‘az</i>, end of chap. 1; and R. Joseph Saul Nathanson, <i>Teshuvot Sho’el u-Meshiv, Mahadura Revi’ah</i>, no. 154.</i> There are no restrictions upon acts performed at that locale when it is not <i>Shabbat</i> in that place. <i>Shabbat</i> at any place on the globe is determined by local time even for a person who is not physically present in that locale.11<i class="footnote">See <i>Teshuvot Ereẓ Ẓevi</i>, no. 44, who permits a person standing on the side of the halakhic dateline on which it is <i>Shabbat</i> to direct a person standing on the other side of the dateline to perform an act of labor prohibited on the Sabbath.</i>
  III. Mukzah
  Although allowing a fax machine to remain operative over <i>Shabbat</i> is permitted by most of the scholars who have addressed the issue, on first analysis it would seem that a fax that is received on <i>Shabbat</i> is <i>mukzah</i> and hence may not be moved or handled on <i>Shabbat</i>. All writing paper is <i>mukzah</i> by virtue of the fact that such paper is designed exclusively for a use that is forbidden on <i>Shabbat</i>, i.e., the paper will not willfully be used for any other purpose because any other use would constitute economic waste (<i>mukzah maḥamat ḥisaron kis</i>). Since an item that is <i>mukzah</i> between sunset and dark is <i>mukzah</i> the entire day, it should follow that the paper on which the fax message is received is <i>mukzah</i> for the entire Sabbath day. That is, indeed, the position espoused by Rabbi Lau, <i>Teḥumin</i>, vol. XII, and Rabbi Grubner, <i>Knesset Yeḥezkel</i>, no. 27, sec. 1.
  <i>Shulḥan Arukh ha-Rav, Oraḥ Hayyim</i> 308:6, regards writing paper as <i>mukzah</i>, for yet another reason. In order to use any object on <i>Shabbat</i> it must be "prepared" for use in advance, i.e., the object must have some utilitarian purpose before the onset of <i>Shabbat</i>. Any item that has no utilitarian purpose, e.g., a stone or a piece of wood, is <i>mukzah</i> unless designated in advance for some permitted use, e.g., as a doorstop. Despite the fact that, on weekdays, writing paper has a highly significant practical purpose, nevertheless, with the advent of <i>Shabbat</i>, since the paper may no longer be used for writing, writing paper loses all utilitarian value. Accordingly, <i>Shulḥan Arukh ha-Rav</i> regards the status of writing paper on <i>Shabbat</i> to be identical to that of stones or pieces of wood.12<i class="footnote">This was also the opinion of R. Moshe Feinstein as reported by R. Yisra’el Pinchas Bodner, <i>Halachos of Muktza</i> (Jerusalem, 1981), p. 84, note 29.</i>
  However, writing in <i>Or Yisra'el</i>, Rabbi Moseson argues that neither consideration applies to fax paper and hence that fax paper is not <i>mukzah</i>. Assuming that the fax machine may remain connected over <i>Shabbat</i>, the owner of the machine anticipates, and indeed desires, that the paper in the machine be used for a legitimate beneficial purpose over the course of <i>Shabbat</i>. Hence the nature of paper in a fax machine is different from that of ordinary writing paper. Writing paper cannot be used for its designated purpose on <i>Shabbat</i> and since, because of its inherent value, it is reserved solely for that impermissible purpose, it has no functional purpose. Fax paper does, however, have a permissible purpose, i.e., to be used for receiving permissible fax transmissions. The consideration of <i>Shulḥan Arukh ha-Rav</i> is similarly inapplicable. In inserting paper in a fax machine the owner has designated the fax paper for a permissible utilitarian use over the course of <i>Shabbat</i> and hence such paper is not comparable in status to stones or pieces of wood.
  There is yet another category of <i>mukzah</i> that is known by a different term, <i>viz., nolad</i>. Included in that category are things that are "born" or come into existence on <i>Shabbat</i>. The primary example is an egg that is laid by a hen on <i>Shabbat</i>. Rabbi Grubner asserts that, since the letter or message printed by the fax machine did not at all exist prior to the advent of <i>Shabbat</i>, the faxed message should be regarded as <i>nolad</i> and hence <i>mukzah</i>. Rabbi Grubner, however, does not forbid handling a fax message on <i>Shabbat</i> because he is willing to rely on the authorities who, in disagreement with Rema, Oraḥ Hayyim 575:4, prohibit <i>nolad</i> only on <i>Yom Tov</i> but not on <i>Shabbat</i>.13<i class="footnote">Cf., Mishnah Berurah 495:14 and <i>Arukh ha-Shulḥan, Oraḥ Ḥayyim</i> 495:6.</i>
  Nevertheless, the contention that a fax message is in the category of <i>nolad</i> may be rebutted on a variety of grounds. Citing <i>Shulḥan Arukh ha-Rav, Kuntres Aharon, Oraḥ Hayyim</i> 497:6, Rabbi Raskin argues that no item can be regarded as <i>nolad</i> unless it acquires a new use on <i>Shabbat</i>. The item to be moved, <i>viz</i>., the fax paper, has acquired no new use since its sole purpose, and the purpose for which it was designated before <i>Shabbat</i>, is to receive fax messages. Rabbi Moseson dismisses the suggestion that a faxed message should not be handled on <i>Shabbat</i> because the letters imprinted on the paper should be regarded as <i>nolad</i> by virtue of the fact that they were produced on <i>Shabbat</i>. He observes that no transgression is involved in moving the ink since the ink "has no substance" (<i>ein bo mamash</i>), i.e., the ink imprinted on the paper is intangible. Rabbi Feinhandler resolves the problem somewhat differently in arguing that nothing is "born" in the printing of a fax message since both the paper and the ink were present and available before <i>Shabbat</i>. Hence, argues Rabbi Feinhandler, the printed message is merely the combination of substances that were both present and available before <i>Shabbat</i>.14<i class="footnote">These reasons also serve to explain why a newspaper printed on <i>Shabbat</i> is not <i>nolad</i>. However, Rabbi Feinhandler endeavors to show that no such problem exists with regard to newspapers because of the failure of R. Moshe Schick, <i>Teshuvot Maharam Shik, Oraḥ Ḥayyim</i>, no. 123, to raise the issue of <i>nolad</i> as a problem with regard to newspapers printed on <i>Shabbat</i>. Although, as noted, the position may be independently correct, no proof can be adduced from <i>Maharam Shik</i>’s responsum. <i>Maharam Shik</i> discusses only the permissibility of reading a newspaper after the Sabbath has drawn to a close. He states explicitly that reading newspapers on <i>Shabbat</i> is not under consideration because, in his opinion, “in any event it is forbidden to a Jew to read a newspaper on <i>Shabbat</i>.” Accordingly, <i>Maharam Shik</i> had no cause to address the issue of whether or not the newspaper is <i>mukẓah</i> on <i>Shabbat</i>.</i>
  IV. Reading the Fax
  To state that a fax machine may remain connected and operational over <i>Shabbat</i> does not necessarily mean that a fax received on <i>Shabbat</i> may be read during the course of the Sabbath day or even upon expiration of the Sabbath. Letters and documents pertaining to business matters may not be read on <i>Shabbat</i>. As recorded in <i>Shulḥan Arukh, Oraḥ Hayyim</i> 307:13, it is also forbidden to read "friendly letters" on <i>Shabbat</i> because they are readily confused with letters pertaining to business affairs. Not prohibited is the reading of letters dealing with matters pertaining to physical needs as distinct from matters pertaining to money or property. It is, however, permitted to glance at a letter in order to determine its nature provided that one ceases further reading if and when the prohibited nature of the letter becomes evident. It is quite obvious that the same provisions apply with regard to the reading of fax messages on <i>Shabbat</i>.
  <i>Bet Avi</i>, Rabbi Lau and Rabbi Feinhandler rule that a fax sent by a Jew in violation of Sabbath restrictions may not be read regardless of its content. Rabbi Grubner tentatively reaches the same conclusion. Rabbi Feinhandler and Rabbi Raskin further observe that the fax may not be read even after <i>Shabbat</i>. The general rule as formulated with regard to cooking on <i>Shabbat</i> and recorded in <i>Shulḥan Arukh, Oraḥ Hayyim</i> 318:1, provides that food cooked by a Jew in willful transgression of <i>Shabbat</i> restrictions is forever forbidden to that person but is permitted to others immediately after <i>Shabbat</i>. The food is permitted to others after <i>Shabbat</i> because there is no reason to fear that the Jew may request the transgressor to cook again on his behalf at some future occasion since "no person sins when he has no benefit." Accordingly, <i>Pri Megadim, Oraḥ Hayyim, Eshel Avraham</i> 325:22, rules that if food is cooked on behalf of a Jew by an apostate the person for whom the food was prepared may never partake of the food for fear that, if he is allowed to benefit from the forbidden act, the Jew may request the apostate to cook on his behalf on some future occasion. Since the person who cooked the food is an apostate the principle that a person does not transgress other than for personal benefit is not applicable.
  Rabbi Feinhandler cogently argues that <i>Pri Megadim</i>'s ruling applies to contemporary Sabbath violators even if they are adjudged to be "children captured by the heathens." A person totally ignorant either of the nature of Sabbath restrictions or of the severity of the transgression will have no compunction with regard to future violation. Hence the food is forbidden to the person for whose benefit it was prepared lest he request a similar benefit in the future. Accordingly, Rabbi Feinhandler concludes that, when it is known that the sender is a Jew, a fax sent by a Jew on <i>Shabbat</i> may never be read. He similarly concludes that a person may not listen to a message left on a telephone answering machine if he knows with certainty that it was recorded by a Jew on <i>Shabbat</i>. The recipient of a fax sent on <i>Shabbat</i> may, however, request that the fax be resent since any benefit accruing to him will be from the second fax rather than from the first.
  Rabbi Brandsdorfer observes that a fax sent by a non-Jew may also not be read on <i>Shabbat</i>. As recorded in <i>Shulḥan Arukh, Oraḥ Hayyim</i> 325:5, a Jew may not derive benefit from a forbidden act performed on his behalf on <i>Shabbat</i> even if he has not requested the non-Jew to provide the benefit on his behalf. He may, however, derive benefit from the act after <i>Shabbat</i>, provided that he does not do so until a period of time sufficient to perform the act after <i>Shabbat</i> has elapsed. Obviously, with regard to transmission of a fax, that period of time is rather brief.
  V. Delayed Transmission
  A further question addressed by many of these writers is the propriety of setting a fax machine before <i>Shabbat</i> to transmit fax messages later in the day, i.e., when it is already <i>Shabbat</i>, in order to take advantage of lower evening rates. Rabbi Lau correctly notes that delayed transmission of a fax is essentially the same as the widely accepted use of a timer or <i>Shabbat</i> clock15<i class="footnote">See, <i>inter alia</i>, R. Moshe Schick, <i>Teshuvot Maharam Shik, Oraḥ Ḥayyim</i>, no. 157; R. Joseph Saul Nathanson, <i>Sho’el u-Meshiv, Mahadura Tinyana</i>, I, no. 5; R. Shimon Grunfeld, <i>Teshuvot Maharshag</i>, I, <i>Yoreh De‘ah</i>, no. 7, sec. 2; R. Shlomoh Zalman Auerbach, <i>Me’orei Esh</i>, chap. 5; and R. Ovadiah Yosef, <i>Teshuvot Yabi‘a Omer</i>, III, nos. 17–18.</i> and, accordingly, he has no difficulty in permitting the practice, at least when the recipient is aware of the fact that the message has been transmitted automatically. The practice is also permitted by Rabbi Leizerowsky and Rabbi Feinhandler.
  Rabbi Brandsdorfer, however, compares the practice to the performance of an act of labor by a non-Jew in the home of a Jew. Such an act is prohibited even when performed by a non-Jew who is not subject to the direction or control of a Jew on the grounds that an uninformed observer is likely to assume that the labor is being performed at the direction of a Jew. Similarly, argues Rabbi Brandsdorfer, an observer at the receiving end of the fax transmission may suspect that it was sent without benefit of an automatic timer. Rabbi Diskin rebuts that contention with the observation that the Sages prohibited labor performed by a gentile but did not prohibit labor performed by an inanimate object. The underlying principle invoked by Rabbi Diskin, i.e., that matters not encompassed within the ambit of a rabbinic prohibition remain permissible, is beyond dispute.16<i class="footnote">R. Isaac Liebes, <i>Bet Avi</i>, V, no. 75, forbids delayed transmission on the basis of a ruling of <i>Teshuvot R. Akiva Eger</i>, no. 159. R. Akiva Eger demonstrates that it is forbidden to enter into a marriage conditioned to take effect on a Sabbath or holy day and concludes that transfer of title designed to become effective on <i>Shabbat</i> is also forbidden. [See also R. Abraham Samuel Benjamin Sofer, <i>Teshuvot Ketav Sofer, Oraḥ Ḥayyim</i>, no. 46, and R. Jekutiel Judah Teitelbaum, <i>Teshuvot Avnei Ẓedek, Oraḥ Ḥayyim</i>, no. 74. Cf., however, R. Moshe Schick, <i>Teshuvot Maharam Shik, Oraḥ Ḥayyim</i>, no. 131. For further discussions of this issue see <i>She‘arim Meẓuyanim be-Halakhah</i> 80:32; R. Shimon Grunfeld, <i>Teshuvot Maharshag</i>, I, no. 117; <i>Teshuvot Ḥelkat Ya’akov</i>, I, no. 63, and II, no. 102; and <i>Teshuvot Minḥat Yiẓḥak</i>, III, no. 34.] <i>Bet Avi</i> argues that it is similarly forbidden to perform an act prior to <i>Shabbat</i> that is designed to cause “labor” to be performed on <i>Shabbat</i>. However, this analogy is simply incorrect. A candle may be kindled on Friday even though the flame burns on <i>Shabbat</i>. Automatic timers are similarly permitted. Marriage and transfer of title are entirely different. Marriage and transfer of title are not forbidden on <i>Shabbat</i> because they constitute acts of labor. Rabbinic decree prohibits effecting the legal change in status reflected in such transactions rather than the act <i>per se</i>. Since it is the effect, rather than the act, that is forbidden, opines R. Akiva Eger, marriage and transfer of title are forbidden when the effect takes place on <i>Shabbat</i> regardless of when the act is performed.</i>
  
  Chapter VI Further Shabbat Questions
  
  <i>"You shall not perform any labor" (Exodus 20:10): I [know] only that acts of labor and [their] derivatives are prohibited. Whence [do I know] to prohibit rabbinic forms of labor? The verse states "any labor." I would think that one is liable for a sin-offering for transgressing a rabbinic prohibition; [therefore] the verse states "labor"—there is liability [for a sin-offering] for designated labor but there is no liability [for transgression of] a rabbinic prohibition</i>.
  MEKHILTA DE-RABBI SHIMON BAR YOHA'I, EXODUS 35:2
  Use of Crockpots on Shabbat
  The slow cooking method that has made the crockpot appeal to housewives who are away from their homes during the day has also made that appliance popular among Jewish women for preparing the Sabbath <i>cholent</i>. In order to satisfy rabbinic restrictions against allowing as yet inedible food to cook on <i>Shabbat</i>, the practice among women who avail themselves of the crockpot for preparing <i>cholent</i> is to begin the cooking process early enough before <i>Shabbat</i> so that the ingredients become cooked before <i>Shabbat</i> to at least one third of the extent that would make the food comfortably edible. Although the food is not properly cooked, Jewish law regards food cooked to that extent to be acceptable by a sufficiently hungry and impatient individual. Since the food is at least minimally edible there is no fear that in his or her haste the cook might seek to increase the cooking temperature in order to make the food fit for consumption.
  Although it is as yet unpublished, a brief responsum by the late R. Shlomoh Zalman Auerbach discussing the propriety of this procedure has been widely disseminated in the observant community. In all likelihood this was the last responsum authored by Rabbi Auerbach prior to his death. The concern expressed by Rabbi Auerbach is limited to crockpots composed of two parts, an outer pot containing heating elements along the circumference of its walls and a second, removable inner container that fits snugly within the outer utensil and does not protrude above the outer cusp of the crockpot. Other crockpots may be unacceptable for <i>Shabbat</i> use for entirely different reasons. The considerations upon which Rabbi Auerbach's short, undated response is based are spelled out in detail in a letter addressed to him by R. Isaac Mordecai Rubin dated 10 Tevet 5755.
  The Gemara, <i>Shabbat</i> 34b, declares that even fully prepared food may not be "concealed" in a substance that "adds heat" (e.g. ashes or sand that themselves retain heat) prior to <i>Shabbat</i> for fear that, were that to be permitted, a person might be led to bury the food in hot ashes and later, on the Sabbath, rake the hot embers in order to maintain the temperature of the food. There is some disagreement among early authorities with regard to the parameters of the prohibition against "concealment" (<i>hatmanah</i>). Rashba and others rule that even "partial concealment" is forbidden. Nevertheless, Rema, Oraḥ Hayyim 253:1, rules that "partial concealment" is not a prohibited form of "concealment." Since Rema speaks of prohibited concealment as concealment "on all sides" it might well be assumed that the prohibition does not extend to a pot insulated on the sides by a substance that "adds heat" but is exposed on the top. Accordingly, since the outer pot containing the heating element encases the inner container only on its sides but does not extend over the cover, use of the crockpot would be permitted. It may be noted that "concealment" in substances that "do not add heat," e.g. cloth or clothing, is forbidden only if the pot is covered on all sides, including the top, and only if the "concealment" takes place on <i>Shabbat</i>.
  There is, however, considerable doubt with regard to the accuracy of this analysis of Rema's position. <i>Pri Megadim, Mishbezot Zahav</i> 259:3, s.v. <i>hatmanah</i>, expresses doubt with regard to whether Rema intended to permit a pot to be "concealed" on all sides save for its cover. Mishnah Berurah 257:43, quoting <i>Hayyei Adam</i> 20:22, rules that a pot may be placed in sand only to its midpoint, but permits the upper portion of the pot to be wrapped in cloth. Rabbi Rubin points out that Rabbenu Tam, in his <i>Sefer ha-Yashar</i>, no. 235, is somewhat equivocal in stating that " 'concealment' connotes being covered in its major portion or in its entirety." It is not absolutely clear whether, in that statement, Rabbenu Tam's use of the disjunctive is an expression of doubt with regard to whether it is only "concealment" of a pot in its entirety that is forbidden or whether even "concealment" of more than fifty percent of the utensil is prohibited or, alternatively, whether Rabbenu Tam simply means to indicate that concealment of the major portion is tantamount to concealment of the entity in its entirety. To this writer, were the latter interpretation correct, the appropriate formulation would have been "in its entirety or [even] in its major portion"; the formulation "in its major portion or in its entirety" would seem to indicate that Rabbenu Tam is in doubt with regard to whether "concealment" of only the major portion is indeed prohibited. Nevertheless, as previously cited, both <i>Hayyei Adam</i> and Mishnah Berurah rule that concealment of a major portion of the pot is prohibited. However, <i>Shulḥan Arukh ha-Rav, Oraḥ Hayyim</i> 257:10, <i>Kuntres Aharon</i>, sec. 3, rules that a pot may be totally immersed in sand so long as the top remains exposed. The outer utensil of a crockpot which contains the heating element is assuredly "a substance that adds heat." Hence, permissibility of the use of a crockpot for purposes of preparing the Sabbath <i>cholent</i> depends directly upon proper analysis of Rema's position, i.e., does Rema prohibit "concealment" even if the pot is partially exposed.
  In his brief response Rabbi Auerbach simply endorses the cogency of his interlocutor's restrictive conclusion prohibiting use of crockpots for preparation of <i>cholent</i> and adds that "concealment" is not negated by the fact that the inner container does not actually touch the outer pot containing the heating element as evidenced by the fact that the utensil actually cooks in this manner. He does, however, offer a somewhat cumbersome solution in advising that an additional metal "utensil," i.e., aluminum foil, be interposed between the sides of the inner container and the outside pot. However, this writer finds that suggestion puzzling since it is not clear that interposition of such a "utensil" would resolve the problem. Although heat conducted to the inner container will indeed be marginally diminished, nevertheless, such a metal liner would itself become warm. It would seem to this writer that such metal is a substance that "adds heat" and, accordingly, nothing is gained by means of its use since the inner container remains "concealed" within the interposed metal that itself "adds heat."
  There is, however, another method that may be employed. <i>Sefer ha-Terumah</i>, no. 231, states that the ban against "concealment" does not apply when "the pot is not covered on all sides and air seizes control over it" (<i>shalit bah avira</i>) since under such circumstances it is clear "that he is not so concerned that it become heated and there is no reason to fear that he will rake [the embers]." Rabbi Auerbach notes that the fact that the inner container does not actually touch the outer part, i.e., that there exists a minimal air space between them, does not negate the prohibition. Since the air circulation is <i>de minimis</i> the air cannot be said to "seize control," i.e., to penetrate, as witnessed by the fact that the utensil actually cooks in this manner. However, the inner container is somewhat conical in shape. As a result, if the inner container is raised by even an inch or so by placing a flat can or the like on the bottom of the crockpot before <i>Shabbat</i> and resting the inner container on that object, the airspace between the inner container and the outer pot is increased significantly. Since, when the inner container is raised, air does indeed penetrate, there is no longer "concealment' in an object that enhances heat and hence the problem with regard to the prohibition against "concealment" is resolved.
  Shortly after dissemination of Rabbi Auerbach's letter, a slim monograph by R. David Solomon entitled <i>Kuntres Hatmanah be-Mikzat</i> appeared in Jewish bookstores. Although the timing of publication was probably coincidental, and indeed crockpots are not at all mentioned in this work, it is clearly evident from the title that the issue addressed is precisely that of "partial concealment."
  <i>Tosafot, Shabbat</i> 47b, cite the position of Rashbam who maintains that any food that may be left on a stove over <i>Shabbat</i>, e.g., food that has been on the stove one third of its cooking time prior to the onset of <i>Shabbat</i>, may also be "concealed." Rabbenu Tam emphatically disagrees and maintains that even food that may be left on the stove may not be concealed. Rabbenu Tam's position is accepted by both <i>Shulḥan Arukh</i> and Rema, Oraḥ Hayyim 257:7. <i>Hazon Ish, Hilkhot Shabbat</i> 37:19, assumes that Rema, Oraḥ Hayyim 253:1, in permitting a partially exposed pot to be placed on hot embers, does not base his ruling upon the fact that the pot is only partially covered but relies upon Rashbam in permitting "concealment" of partially cooked food. If so, points out <i>Hazon Ish</i>, that ruling contradicts Rema's own earlier cited ruling negating the position of Rashbam. Rabbi Solomon argues that, quite to the contrary, Rabbenu Tam himself, in his <i>Sefer ha-Yashar</i>, permits "partial concealment" as earlier noted and hence Rema's rulings are entirely consistent.
  Rabbi Solomon engages in a meticulous examination of the writings of early-day authorities with regard to their view concerning "partial concealment" and concludes that the majority of those authorities accept Rabbenu Tam's position in ruling that "partial concealment" is permissible. He notes that many of those works were not available to R. Joseph Caro and those who accepted his ruling that "partial concealment" is forbidden.
  As noted earlier, Rashba and those who follow his position in prohibiting "partial concealment" do so if even one surface of the pot is "concealed," e.g., if the bottom of the pot is placed in hot ashes. Rabbenu Tam rules that "concealment" is forbidden only if the pot is concealed "in its major portion or in its entirety." Acceptance of Rabbenu Tam's position leaves open the earlier discussed question of whether Rabbenu Tam is to be understood as prohibiting concealment only when the utensil is entirely covered or even when the major portion of the utensil is "concealed." That question is not addressed by Rabbi Solomon.
  Care of Soft Contact Lenses on Shabbat
  Hard lenses are made from polymethyl methecrylate (PMMA) and are essentially non-permeable. Rigid gas permeable contact lenses, also known as oxygen permeable lenses, are made of permeable materials, usually silicone and fluorine, that allow oxygen to reach the eye. Because they are made of a relatively hard material such lenses retain their shape when the wearer blinks which, in turn, is one of the reasons that such lenses tend to provide crisper vision than is provided by soft lenses. They are also extremely durable and with proper care may last years. Hard lenses do not absorb water. As a result protein and lipids naturally present in tears do not bind to hard lenses as easily as to soft lenses. If deposits of these substances are not removed they impede use and may cause a corneal abrasion. Such deposits are also a haven for bacteria that may cause sight-threatening infections. Proper use of the lenses requires lightly rubbing a cleansing solution in the lens with the index finger, rinsing the lens and storing it in a contact lens case filled with a storing and conditioning agent as well as, in most cases, occasional use of an enzymatic cleanser on a daily, weekly or monthly basis to assist in removal of protein deposits. Since the lenses do not absorb liquid and the cleansing process is designed only to remove surface debris and dust, the cleaning of hard lenses on <i>Shabbat</i> and <i>Yom Tov</i> is generally regarded as being problem-free insofar as Halakhah is concerned.
  Most patients find frequently replaced soft lenses to be more comfortable than hard lenses. More important is the fact that they eliminate the buildup of protein deposits and hence reduce the risk of corneal abrasion and infection. The replacement schedule for soft lenses may be daily, weekly, bi-weekly, monthly, semi-monthly or quarterly. Some contact lenses are also designed for extended or overnight wear. Although the F.D.A. has approved extended wear for up to seven days, some practitioners advise that wear for even three days without removal can lead to potentially dangerous infections of the eye.
  Soft lenses that are discarded daily require no cleaning and hence present no halakhic problems. The removal schedule for extended wear lenses can readily be arranged to obviate the need for removal on <i>Shabbat</i> or <i>Yom Tov</i>. However, since soft lenses absorb water the cleansing of lenses that must be removed nightly does present a problem on <i>Shabbat</i> and <i>Yom Tov</i>. The water content of soft lenses ranges from 36% to 70% by weight. Permavision lenses, which are visibility tinted contact lenses manufactured by Bausch and Lomb, are 36% water by weight when immersed in a sterile borate buffered saline solution. SofLens, one-day disposable contact lenses also manufactured by Bausch and Lomb, are 70% water by weight.
  Soft lenses that are reused require daily cleansing and must be kept in a saline solution in order to prevent them from drying out and hence becoming unusable. Since soft lenses become water-laden when placed in an appropriate solution, lens care on <i>Shabbat</i> and <i>Yom Tov</i> presents three separate issues: 1) Is soaking the lens a form of "washing" that is forbidden on <i>Shabbat</i> and <i>Yom Tov</i>? 2) Does the cleansing process performed by dipping a finger in the solution and rubbing it over the lens constitute a forbidden form of washing? 3) Does handling the lens in the course of cleaning and removal from the solution constitute a forbidden form <i>seḥitah</i>, i.e., of expressing or squeezing a liquid from a solid? The issue of soaking lenses on <i>Shabbat</i> is addressed by R. Joseph Shalom Eliashiv in a brief item included in his recently published volume of responsa, <i>Kovez Teshuvot</i> (Jerusalem, 5760), no. 18. A more detailed discussion of those issues is presented by R. Isaac Mordecai Rubin in <i>Yeshurun</i>, vol. VII (Elul 5760). The same edition of <i>Yeshurun</i> contains a letter by R. Samuel ha-Levi Woszner to Rabbi Rubin addressing these questions. The issue is also addressed by R. Abraham Salem, <i>Teshuvot va-Ya'an Avraham</i>, IV (Jerusalem, 5760), no. 7; R. Yeshayahu Pinchas Rotenberg, <i>Teshuvot Minḥat Pri</i>, III (Jerusalem, 5760), no. 34; R. Yehonatan Ben Tzur, <i>He'ir ha-Mizraḥ</i>, no. 22-30: R. Ephraim Greenblatt, <i>Kiryat Sefer</i>, published by <i>Machon Naḥalat Yisra'el</i>, Kislev 5960; and R. Abraham Chanunu, <i>Kol ha-Torah</i>, no. 50 (Nisan 5751), published by Agudath Israel of Europe. An earlier succinct ruling regarding use of soft lenses on <i>Shabbat</i> is included in R. Joshua Neuwirth's <i>Shemirat Shabbat ke-Hilkhatah</i> 15:2.
  As recorded by Rema, Oraḥ Hayyim 302:9, it is forbidden to soak clothing made of cloth in water on <i>Shabbat</i> because soaking, in and of itself, is a form of "washing" that is prohibited because it constitutes <i>melabben</i> or "whitening," one of the thirty-nine forms of "labor" prohibited on <i>Shabbat</i>. However, as recorded by <i>Shulḥan Arukh, Oraḥ Hayyim</i> 302:9, it is permitted to pour water on leather garments on <i>Shabbat</i> because mere soaking is not regarded as a form of <i>melabben</i> with regard to leather. R. Moshe Feinstein, <i>Iggerot Mosheh, Yoreh De'ah</i>, II, no. 77, expresses the opinion that the usual restrictions regarding washing do not apply to plastic tablecloths because they are non-absorbent but he nevertheless concludes that "since it is impossible to find this <i>din</i> explicitly stated because [plastic] is a new species that was not seen in early generations it is therefore proper to be stringent and not to pour water directly with force but to be lenient in cleansing gently with water." With regard to plastic, <i>Iggerot Mosheh</i> apparently relies upon the lenient view recorded by Rema, Oraḥ Hayyim 302:9, that permits an individual to pour a small quantity of water upon a garment to which dirt has not adhered but nevertheless prohibits him to pour a copious quantity of water upon the garment "lest he squeeze the water out of the garment."
  Although made of plastic, soft contact lenses are regarded in an entirely different light by the earlier-cited authorities because they do absorb water. Rabbi Rubin tentatively suggests that the distinction between cloth and leather is not based upon absorbency but upon the consideration that soaking either is not effective in cleaning leather or that it takes much longer to achieve that effect. If so, absorbent plastic may have a halakhic status comparable to leather.
  Rabbi Eliashiv draws attention to a controversy among early-day authorities cited by Rema, Oraḥ Hayyim, 302:9. Rosh, <i>Yoma</i> 8:4, maintains that soaking constitutes a prohibited form of "washing" only if the garment has been soiled in some manner. If, however, the garment is perfectly clean, or even if it has become somewhat dull or drab because of wear and/or the passage of time and hence the soaking is designed solely to brighten or freshen the garment, the garment may be soaked in water. Rema cites the view of Rosh and prefaces the contradictory view with the phrase "some forbid." Rabbi Eliashiv adds that, even according to the stringent view, soaking an unsoiled garment is prohibited only if the garment has become dull or grey and the soaking has the effect of restoring the garment's luster. If, however, the soaking has no effect whatsoever upon the appearance of the garment, concludes Rabbi Eliashiv, soaking is permissible according to all authorities. Rabbi Eliashiv carefully notes that his opinion in this matter is <i>contra</i> that of <i>Shulḥan Arukh ha-Rav, Oraḥ Hayyim</i> 302:21, but that R. Abraham Borenstein of Sochachow, <i>Avnei Nezer, Oraḥ Hayyim</i>, no. 159, sec. 10, expresses astonishment because he could find no basis for the view expressed by <i>Shulḥan Arukh ha-Rav</i>. Accordingly, Rabbi Eliashiv permits placing the lenses in a saline situation on <i>Shabbat</i>, but only if the lenses have been properly cleaned before <i>Shabbat</i>. Under such circumstances, soaking has no cleansing effect but serves only to prevent the lens from shriveling and hence becoming useless.
  Rabbi Nissim Karelitz is quoted by Rabbi Ben Tzur as permitting the soaking of contact lenses on <i>Shabbat</i> on the basis of an entirely different consideration. It is virtually impossible to express the solution absorbed by the lenses. The moisture that is absorbed by the lenses is, practically speaking, removable only through evaporation. Soaking, reportedly argues Rabbi Karelitz, is tantamount to "washing" only with regard to cloth and the like from which absorbed liquid can be squeezed.
  Rabbi Eliashiv omits any explanation for his insistence upon cleansing the lenses before <i>Shabbat</i>. However, Rabbi Rubin observes that "it is logical" to assume that, although soaking the leather is not regarded as a form of <i>libbun</i> because of its lack of effectiveness, nevertheless, effective chemical removal of a stain that has penetrated a leather garment is forbidden. The halakhic status of plastic, he contends, is comparable to that of leather. Rabbi Rubin then proceeds to argue that soaking lenses in a cleansing solution on <i>Shabbat</i> is halakhically forbidden. Presumably, Rabbi Eliashiv insists that the lenses be cleaned prior to <i>Shabbat</i> in order to assure that the saline solution will not serve a cleansing purpose. That rationale is explicitly cited in the name of Rabbi Eliashiv by Rabbi Chanunu in the latter's discussion of the topic.
  This writer fails to understand the application of this line of reasoning to contact lenses. The silicone lens does not absorb stains and does not become sullied; on the contrary, a properly maintained lens is always crystal clear. Any distortion that is perceived in a properly maintained lens is due to the presence of surface debris. As explained by Mishnah Berurah 302:7 and <i>Avnei Nezer, Oraḥ Hayyim</i>, no. 157, sec. 4, removal of surface dirt or debris is not a form of <i>melabben</i>.1<i class="footnote">Cf., R. Akiva Eger, <i>Gilyon ha-Shas, Shabbat</i> 147a and <i>Mishnah Berurah, Bi’ur Halakhah</i> 302:1 and <i>Sha‘ar ha-Ẓiyyun</i> 302:41.</i> <i>Avnei Nezer, Oraḥ Hayyim</i>, no. 159, sec. 7, demonstrates that <i>libbun</i> applies only to removal of stains or absorbed materials that mar the appearance of the garment. Thus, for example, <i>Avnei Nezer, Oraḥ Hayyim</i>, no. 157, sec. 11, demonstrates that <i>kashering</i> utensils on <i>Yom Tov</i>, albeit forbidden for other reasons, is not prohibited by virtue of <i>melabben</i> because the "taste" absorbed by a utensil in no way sullies or mars its appearance. If so, as noted by <i>Minḥat Pri</i>, it would be permissible even to rub the solution over the lenses on <i>Shabbat</i>.
  Apparently conceding these points, Rabbi Rubin argues that, if not removed, the proteins adhering to the surface of the lens will eventually cause the lens to become discolored and hence "it is logical" to assume that their removal constitutes a form of <i>libbun</i>. This writer is unaware of any source that might substantiate the view that application of a substance designed to prevent future discoloration constitutes <i>libbun</i>. The mere fact that a contact lens that is left uncleaned will turn yellow does not lead to the conclusion that removal of the colorless protein is a form of <i>libbun</i>. In any event, that consideration is germane only with regard to utilization of an enzyme solution but not with regard to use of a cleansing solution that serves only to remove surface dirt and bacteria. Accordingly, there appears to be no reason to insist upon cleansing the lenses before <i>Shabbat</i> if they are to be soaked on <i>Shabbat</i> only in an ordinary cleansing solution.
  Cleansing the lenses by means of rubbing the wet lens with a finger is somewhat more problematic. Rubbing a leather garment on <i>Shabbat</i> in order to remove a stain is forbidden. <i>Mishnah Berurah, Bi'ur Halakhah</i> 302:9, asserts that, although rubbing hard leather in this manner is rabbinically prohibited, rubbing soft, supple leather in such a manner constitutes a biblical offense. Rabbi Woszner, however, questions that distinction and asserts that the prohibition against cleansing leather is, in all circumstances, rabbinic in nature. However, the disagreement is only with regard to the stringency of the prohibition, not with regard to the prohibition itself. Accordingly, Rabbi Rubin explicitly prohibits manual cleansing of soft lenses on Shabbat. Again, for reasons identical to those stated above, this writer fails to understand how removal of substances that do not sully or stain the lenses can be regarded as a form of <i>libbun</i>.
  The issue posed by virtue of possible <i>seḥitah</i> or squeezing is summarily dismissed by Rabbi Rubin on empirical grounds. Although the lens absorbs water it is extremely difficult to force it to expel the liquid it has absorbed. To do so would require an inordinate amount of pressure. Accordingly, he concludes that there is no problem with regard to handling soft contact lenses on <i>Shabbat</i>.
  The most incisive analysis of these issues may well be that of the late R. Shlomoh Zalman Auerbach as reported by R. Joshua Neuwirth. In his <i>Shemirat Shabbat ke-Hilkhatah</i> 15:2, Rabbi Neuwirth permits removal of soft contact lenses and their placement in a "solution" immediately upon removal. When questioned by Rabbi Rubin regarding R. Shlomoh Zalman Auerbach's opinion concerning this matter, Rabbi Neuwirth responded in the name of his mentor: "Ordinary cloth absorbs in its molecules and between the molecules. Contact lenses do not have molecules and intermolecules; rather, they swell because of water, i.e., in the manner of a balloon that swells from the air" (i.e., the balloon fills with air but does not absorb the air).
  Employing terminology almost identical to that of Rabbi Neuwirth, Rabbi Ephraim Greenblatt, author of <i>Teshuvot Rivevot Efrayim</i>, also permits soaking contact lenses on <i>Shabbat</i> but does not permit rubbing the wet lens. Rabbi Greenblatt emphasizes that dirt is not absorbed within the lens but only adheres to the surface, that liquid cannot be expressed from the lens, that the "dirt" does not impede vision, i.e., that it is invisible to the eye, and that the lens does not absorb liquid but that the liquid occupies "the holes in the lens" which is "placed as a ball is placed in water."
  Although Rabbi Rubin acknowledges that the scientists whom he consulted did not provide definitive explanations regarding the manner in which permeable lenses absorb liquids, he dismisses Rabbi Auerbach's contention as scientifically incorrect. In actuality, although imprecisely expressed, Rabbi Auerbach's analysis may well be scientifically accurate. Soaking is regarded as a form of washing because water permeates cloth and is absorbed within its threads, i.e., it replaces air that otherwise occupies the space between the molecules of the cloth. Plastic is known to be non-absorbent. The plastic used in soft contact lenses is probably non-absorbent as well. The so-called "absorption" that takes place in soft lenses probably does not take place within the molecular strands of which the plastic is composed but may simply be the result of the phenomenon of water pushing between strands of plastic without being absorbed in the space between individual molecules. Thus, the phenomenon is analogous to air blown into a balloon that forces the walls of the balloon apart without being absorbed within the walls themselves. If this is indeed the case, there may be grounds to argue that the halakhic status of soft contact lenses is that of leather rather than of cloth.
  There is, of course, some absorption of water even by hard leather. The distinction between leather and cloth lies in the fact that leather does not become permeated by water in a manner similar to cloth. Accordingly, it is arguable that, if the water indeed does not thoroughly permeate the intermolecular space of soft plastic, the status of plastic is comparable to that of leather. It was, of course, this lack of precise information regarding the physical properties of plastic that prompted Rabbi Feinstein's earlier noted cautionary advice with regard to even ostensibly non-absorbent plastics.
  Dr. Abraham S. Abraham, <i>Nishmat Avraham</i>, V, Oraḥ Hayyim 321:11, sec. 2, records that Rabbi Neuwirth reported that R. Shlomoh Zalman Auerbach permitted placing contact lenses in liquid only while they are still moist. Rabbi Auerbach forbade placing a dried out lens even in a non-cleansing saline solution because in such circumstances, the liquid has a restorative effect, a factor that renders the act forbidden just as it is forbidden to place a <i>lulav</i> in water on <i>Shabbat</i>. Rabbi Auerbach is also quoted as stating that if the lens has become shriveled or wrinkled because of lack of moisture the infraction is even more serious. Since a lens in such condition is unusable, placing it in a liquid, declared Rabbi Auerbach, is tantamount to the forbidden act of completing the fashioning of a utensil on <i>Shabbat</i>.
  Wheelchairs on Shabbat
  Transporting a person through a public thoroughfare who is himself capable of walking constitutes a rabbinic rather than a biblical offense. Nor is there a biblical infraction in transporting such a person while he or she occupies a bed because the bed is regarded as an appurtenance of the person. However, if the person is incapable of walking, carrying that individual through a public thoroughfare on <i>Shabbat</i> constitutes a biblical transgression.2<i class="footnote">See <i>Mishnah Berurah, Bi’ur Halakhah</i> 308:41, s.v. <i>she-lo</i>.</i> Thus, it is clear that a person who cannot walk may not be pushed through the streets on <i>Shabbat</i> in a wheelchair.
  R. Zevi Pesach Frank, <i>Teshuvot Har Ẓevi, Oraḥ Hayyim</i>, I, no. 170, examines the interesting question of whether such a person may push his own wheelchair on <i>Shabbat</i>. The Mishnah, <i>Shabbat</i> 65b, declares that an amputee is free to walk with a prosthesis because, as Rashi explains, the prosthesis is regarded as his "shoe." For the same reason <i>Shulḥan Arukh</i>, Oraḥ Hayyim 301:16, rules that an amputee may walk on leather pads. Similarly, it may be argued, with regard to a person who is not ambulatory, the wheelchair is tantamount to his "feet."
  Nevertheless, Rabbi Frank rules that use of a wheelchair on <i>Shabbat</i> in a public thoroughfare is forbidden.3<i class="footnote">Use of a wheelchair within an area in which carrying is permissible would seem to be entirely permissible. Cf., however, R. Yechiel Ya’akov Weinberg, <i>Seridei Esh</i>, II, no. 25. <i>Seridei Esh</i> addresses the question of use of a “wagon” within an area enclosed by an <i>eiruv</i>. Rema, <i>Oraḥ Ḥayyim</i> 305:18, rules that it is forbidden to ride in a horse-drawn coach on <i>Shabbat</i> even when the coachman is a non-Jew for two reasons: 1) such an act involves rabbinically proscribed “use of an animal;” and 2) the rabbinic injunction prohibiting riding on the back of an animal lest the rider sever a branch from a tree in order to spur the animal applies also to riding in a wagon or a carriage drawn by an animal. <i>Seridei Esh</i> cryptically comments that, in the case of the “wagon” used by a paralyzed person, the sole applicable prohibition is the rabbinic injunction “lest he repair (<i>shema yetaken</i>).” Accordingly, he rules that a sick person may be taken to the synagogue, but only to the synagogue, in a wagon driven by a non-Jew since, on the Sabbath, a non-Jew may be directed to perform a rabbinically proscribed act in order to facilitate performance of a <i>miẓvah</i>.<i>Seridei Esh</i> is certainly not referring to transportation by means of a horse-drawn wagon since Rema rules that, in such a situation, the Jew seated in the coach himself transgresses two rabbinic prohibitions. Indeed, in discussing use of a “wagon” on <i>Shabbat</i>, <i>Seridei Esh</i> posits a rabbinic prohibition not cited by Rema with regard to use of a horse-drawn coach, <i>viz</i>., “lest he repair.” Presumably, then, the “wagon” to which <i>Seridei Esh</i> refers is a wheelchair. That prohibition is not cited by Rema because, although the Sages did forbid playing musical instruments on <i>Shabbat</i> “lest he repair” the instrument should it malfunction, they did not issue a blanket edict forbidding use of all utensils. To this writer’s knowledge, no one has suggested that use of a wheelchair within a dwelling is forbidden on <i>Shabbat</i> as a violation of a rabbinic prohibition based upon the consideration “lest he repair.” If so, there is no apparent reason why a wheelchair may not be pushed for any purpose, even by a Jew himself, within an area in which carrying is permissible. See the note of R. Shlomoh Zalman Auerbach included in the Jerusalem, 5759 edition of <i>Seridei Esh</i>, I, no. 32.</i> A prosthesis, cane or pad is designed to assist a person in using his own physical power in walking. Those items make the process possible and have the status of shoes which may be worn on <i>Shabbat</i> because they are articles of clothing and, as such, are appurtenances of the body. A wheelchair does not assist its user in walking and does not have the status of a shoe; since a wheelchair is not worn on the body it is not an item of clothing. Accordingly, Rabbi Frank concludes that a person may not wheel himself on <i>Shabbat</i> just as others are not permitted to push the wheelchair.
  R. Shimon Grunfeld, <i>Teshuvot Maharshag</i>, II, no. 13, makes the identical point with regard to the status of a wheelchair. <i>Maharshag</i> argues that even if the person occupying the wheelchair is capable of walking, and hence carrying or pushing him is merely a rabbinic infraction, pushing the wheelchair itself constitutes a biblical transgression because the wheelchair cannot be considered to be comparable to an article of clothing.
  <i>Maharshag</i>, quite understandably, forbids allowing the wheelchair to be pushed by a non-Jew even for purposes of a <i>mizvah</i> such as public prayer in a synagogue. Moreover, <i>Maharshag</i> prohibits employment of a non-Jew for this purpose even in an area in which carrying is only rabbinically forbidden. In doing so, <i>Maharshag</i> rules in accordance with the authorities cited by <i>Shulḥan Arukh, Oraḥ Hayyim</i> 307:5, who maintain that it is forbidden to direct a non-Jew to perform a rabbinically proscribed act even when the act is undertaken for purposes of fulfilling a <i>mizvah</i>. However, the consensus of opinion among latter-day authorities is in accordance with the permissive view cited by <i>Shulḥan Arukh</i> sanctioning employment of a non-Jew for performance of a rabbinically proscribed act when such is necessary in order to fulfill a <i>mizvah</i>.
  R. Moshe Feinstein, <i>Iggerot Mosheh, Oraḥ Hayyim</i>, IV, no. 90, adopts a position directly at variance to that of Rabbi Frank and Rabbi Grunfeld in ruling that a wheelchair is the "shoe" or "garment" of a person incapable of walking. Accordingly, <i>Iggerot Mosheh</i> has no reservation with regard to permitting a person to wheel himself in a wheelchair on <i>Shabbat</i>.
  R. Yitzchak Ya'akov Weisz, <i>Teshuvot Minḥat Yizḥak</i>, II, no. 114, is in agreement with Rabbi Frank and Rabbi Grunwald in declaring that a wheelchair cannot have the status of a "shoe" since it does not serve as an aid in self-ambulation. He nevertheless tentatively advances another consideration that would serve to render use of a wheelchair permissible. <i>Minḥat Yizḥak</i> takes it for granted that, were such a situation logically conceivable, there would be no prohibition against a person carrying himself even if that person is physically unable to walk. <i>Minḥat Yizḥak</i> suggests that the wheelchair may be regarded as an appurtenance of the person (<i>tafel</i>) and hence a person may "carry" his wheelchair just as he may carry himself. That consideration is based upon the statement of the Mishnah, <i>Shabbat</i> 93b, indicating that transporting a person reclining upon a bed into a public thoroughfare on <i>Shabbat</i> involves no biblical infraction because the bed is <i>tafel</i> to the person. A similar argument is presented by R. Joshua Neuwirth, <i>Shemirat Shabbat ke-Hilkhatah</i>, 2nd edition (Jerusalem, 5739), 34:27, note 103, in the name of R. Shlomoh Zalman Auerbach. The only area of doubt, according to <i>Minḥat Yizḥak</i>, is whether the wheelchair is indeed <i>tafel</i> to the person. Even though early-day authorities speak not only of a bed but also of a chair as being <i>tafel</i> to the person, <i>Minḥat Yizḥak</i> suggests that the reference may be limited to the type of chair that is used in the home on a regular basis for ordinary activities but that a chair used only for purposes of transportation may not be <i>tafel</i> to the body. Although the two matters are not entirely identical, <i>Minḥat Yizḥak</i> compares the question of the wheelchair to the rule with regard to a cane. A cane that is needed for assistance in walking both at home and abroad has the status of a "shoe;" a cane that is needed for walking in the street but not at home is not regarded as a "shoe."
  <i>Shemirat Shabbat ke-Hilkhatah</i> quotes Rabbi Auerbach as having raised another objection. When a person reclining upon a bed is transported by others their intention is to carry the person and the bed is incidental to the person transported thereon. However, the invalid who pushes himself in a wheelchair is, in fact, primarily propelling the wheel-chair and in doing so takes advantage of the opportunity to move with the wheelchair. In effect, argues Rabbi Auerbach, the invalid becomes an appurtenance to the wheelchair. Rabbi Auerbach further suggests that the same consideration should apply in situations in which the wheelchair is pushed by others. <i>Shemirat Shabbat ke-Hilkhatah</i> relies upon the permissive opinion in ruling that an invalid may propel his own wheelchair but only in areas in which carrying is merely rabbinically forbidden.
  <i>Minḥat Yizḥak</i> further suggests that even if the chair itself is <i>tafel</i> to the person, nevertheless, the wheels designed for use with the wheel-chair are not intrinsic to the chair itself and hence are an appurtenance of the chair rather than an appurtenance of the person. Consequently, since the wheels are not an appurtenance of the person, <i>Minḥat Yizḥak</i> argues that the wheels may not be transported on <i>Shabbat</i>. To this writer that objection would seem germane only in the case of a chair to which wheels have been added as an appendage. A conventional wheel-chair, however, has no feet and hence, were the wheels to be removed, would be unusable. It is difficult to understand why, under such circumstances, the wheels need not be regarded as the feet of the chair and hence integral to its function as a chair.
  Nevertheless, since <i>Minḥat Yizḥak</i> regards the status of a wheelchair to be a matter of doubt, he is willing to permit the use of a wheelchair on <i>Shabbat</i> under extremely limited conditions. If two people, each of whom is capable of performing an act of labor independently of the other, perform the act together, the infraction is rabbinic, rather than biblical, in nature. Hence, if the occupant of the wheelchair is capable of walking, the act of carrying or pushing such a person is only rabbinically prohibited. Accordingly, argues <i>Minḥat Yizḥak</i>, a non-Jew may be requested to carry an ambulatory individual for purposes of a <i>mizvah</i>. However, directing a non-Jew to push a wheelchair in which a person is seated constitutes a directive ordering the non-Jew to perform a biblically prohibited act. <i>Minḥat Yizḥak</i> innovatively suggests that asking the non-Jew to push the wheelchair is nevertheless permitted if the occupant pushes the wheelchair together with the non-Jew, provided that the occupant is capable of propelling the wheelchair himself without assistance. Since the Jew and the non-Jew are both performing the act of "labor" simultaneously, the non-Jew is being requested to perform an act that is only rabbinically prohibited.4<i class="footnote"><i>Minḥat Yiẓḥak</i>, however, concedes that such a procedure would be difficult to execute and, moreover, would arouse astonishment in the eyes of onlookers who might be misled in assuming that use of a wheelchair even in a conventional manner is permissible.</i> In ruling in this manner <i>Minḥat Yizḥak</i> espouses the view that it is permissible to direct a non-Jew to perform a rabbinically forbidden act for purposes of fulfilling a <i>mizvah</i> such as public prayer or the like. <i>Maharshag</i>, whose negative ruling regarding employing a non-Jew to perform a rabbinically proscribed act for purposes of fulfilling a <i>mizvah</i> was cited earlier, would disagree and refuse to sanction use of wheelchairs even under such conditions.
  <i>Minḥat Yizḥak</i> fails to cite the discussion of the Sephardic scholar, R. Joseph Chaim ben Elijah, <i>Rav Pe'alim</i>, I, no. 25. The Gemara, <i>Beizah</i> 25b, declares that a palanquin or sedan-chair may not be used for transportation on <i>Yom Tov</i>. Somewhat surprisingly, <i>Tur Shulḥan Arukh, Oraḥ Hayyim</i> 301:19, includes a reference to the rabbinic prohibition against use of a sedan-chair that is formulated by the Gemara with regard to <i>Yom Tov</i> among the laws of <i>Shabbat</i>. <i>Tur</i> also records an exception to that prohibition in the instance of a person whose presence "is required for the benefit of the multitude" (<i>rabbim zerikhim lo</i>). <i>Bet Yosef, ad locum</i>, notes that earlier codifiers omit any reference to that prohibition in their codification of the laws of <i>Shabbat</i>. The obvious explanation of such omission is that they regard use of a sedan-chair on <i>Shabbat</i> to be forbidden under all circumstances because of the Sabbath prohibition against carrying in a public domain. <i>Tur</i>, however, explains <i>Bet Yosef</i>, maintains that the rabbinic prohibition against carrying a person who is himself capable of ambulation is also suspended when the person's presence is "required by the multitude." Accordingly, since <i>Tur</i> maintains that, in at least some circumstances, it is permissible to transport a person in a sedan-chair on <i>Shabbat</i>, it was necessary for <i>Tur</i> to record the regulations pertaining to use of sedan-chairs in his codification of the laws of <i>Shabbat</i>.
  <i>Rav Pe'alim</i> cogently observes that <i>Bet Yosef</i>'s comment serves to explain <i>Tur</i>'s view with regard to carrying the person but fails to account for the permissibility of carrying the chair itself. Consequently, <i>Rav Pe'alim</i> astutely infers that <i>Bet Yosef</i> must have regarded the sedan-chair as no different from a bed or an ordinary chair which are regarded as appurtenances of the body and hence, for purposes of carrying on <i>Shabbat</i>, have the same status as the person himself. There can be no question, he asserts, that, if a sedan-chair is regarded as an appurtenance of the body, a wheelchair must be regarded as an appurtenance of the body as well.5<i class="footnote">The comment of <i>Rav Pe‘alim</i> is, of course, not germane with regard to <i>Minḥat Yiẓḥak</i>’s reservation regarding the wheels of a wheelchair.</i>
  In a responsum addressing the permissibility of riding a bicycle on <i>Shabbat, Rav Pe'alim</i>, I, no. 25, draws attention to the earlier-cited statement of the Gemara, <i>Beizah</i> 25b, forbidding use of sedan-chairs other than by a person whose presence was necessary "for the benefit of the multitude." The most obvious explanation of the rule is that such activity is forbidden by rabbinic decree as a weekday or excessively laborious activity but that an exception was built into the edict permitting such activity when necessary "for the benefit of the multitude." That explanation is reflected in the ruling of R. Ezekiel Landau, <i>Teshuvot Noda bi-Yehudah, Mahadura Tinyana, Oraḥ Hayyim</i>, no. 11 and <i>Mahadura Tinyana, Oraḥ Hayyim</i>, no. 28. However, the same author, in his commentary on <i>Beizah, Ẓlaḥ, ad locum</i>, maintains that the rule is based upon the prohibition against carrying in a public domain. Although the Gemara refers to <i>Yom Tov</i> activity, carrying in a public domain is forbidden even on <i>Yom Tov</i> unless such carrying is undertaken for some need. Accordingly, <i>Ẓlaḥ</i> understands the Gemara as applying that principle in forbidding the carrying of a sedan-chair unless "the multitude" require the presence of the person being carried, i.e., the transport is for satisfaction of some need.6<i class="footnote"><i>Keren le-David</i>, no. 96, quite cogently objects that, if <i>Ẓlaḥ</i>’s analysis is correct, use of a sedan-chair should be permitted even for the benefit of the passenger since the passenger’s benefit or convenience is certainly a “need.”</i>
  <i>Rav Pe'alim</i> accepts the usual explanation that the Gemara's statement reflects an edict banning weekday activity and is concerned with whether or not that edict includes riding a bicycle as well. <i>Minḥat Yizḥak</i> raises the identical concern with regard to a wheelchair.7<i class="footnote"><i>Maharshag</i>, however, refuses to forbid use of a wheelchair as a proscribed “weekday activity.” <i>Maharshag</i> cites <i>Teshuvot She’ilat Ya‘akov</i>, no. 45, who forbids use of a bicycle even within an <i>eiruv</i> on such grounds, and <i>Teshuvot Pnei Mevin</i>, no. 71, who similarly forbids use of what appears to have been a rickshaw-like conveyance, but dismisses the contention that use of a wheelchair should be banned as a “weekday activity” with the remark that “We cannot create edicts and prohibitions of our own accord. ” <i>Rav Pe‘alim</i> and <i>Minḥat Yiẓḥak</i> were, however, concerned that use of a bicycle and/or a wheelchair might fall within the ambit of the formal rabbinic prohibition against use of a sedan-chair. That contention is not at all considered by <i>Maharshag</i>. Indeed, bicycles and wheelchairs are readily distinguishable from the sedan-chair that was the subject of rabbinic interdiction.</i> If so, there is reason to assume that use of a sedan-chair is forbidden even in areas enclosed by an <i>eiruv</i> in which there is no problem with regard to carrying but in which use of a sedan-chair may yet be a "weekday activity." R. David ibn Zimra, <i>Teshuvot Radvaz</i>, V, no. 2, 163, does regard the prohibition against use of a sedan-chair to be in effect even in a locale in which there in an <i>eiruv</i>. However, R. Joseph Saul Nathanson, <i>Sho'el u-Meshiv, Mahadura Tinyana</i>, III, no 74, contends that carrying from place to place in a private domain involves no desecration of <i>Shabbat</i> or <i>Yom Tov</i> and the Sages did not seek to ban any form of carrying in a private domain on the grounds that it is a "weekday activity." Nor, argues <i>Sho'el u-Meshiv</i>, did the Sages prohibit any form of carrying in an area enclosed within an <i>eiruv</i>. Hence, <i>Sho'el u-Meshiv</i> finds no objection to use of a sedan-chair in an area circumscribed by an <i>eiruv</i>.8<i class="footnote">See also the similar view of R. Ezekiel Landau, <i>Teshuvot Noda bi-Yehudah, Mahadura Kamma</i>, no. 11, and the comments of R. Eliezer David Grunwald, <i>Keren le-David</i>, no. 96, s.v. <i>ve-hineh</i>.</i>
  <i>Rav Pe'alim</i> himself assumes that the concern with regard to "dishonor of the Sabbath" that prompted the rabbinic edict is cogent only with regard to a trip of significant length. Accordingly, he distinguishes between a sedan-chair that is carried by others and a bicycle which is pedaled by the rider. <i>Rav Pe'alim</i> further distinguishes between a sedan-chair that is designed to accommodate multiple passengers and hence is used for transportation over relatively long distances and a bicycle seating only one person which, contrafactually, he contends is used only for short trips. <i>Keren le-David</i>, no. 96, employs a similar distinction in permitting use of baby carriages on <i>Yom Tov</i> and on <i>Shabbat</i> within an area surrounded by an <i>eiruv</i>9<i class="footnote">It is of interest to note that <i>Keren le-David</i> concludes his responsum with a report that, his comments notwithstanding, “he heard” that, in Pressburg, God-fearing people did not use baby carriages on <i>Shabbat</i>.</i> on the grounds that carriages are used only for short distances. <i>Minḥat Yizḥak</i> applies <i>Keren le-David</i>'s distinction to wheelchairs in stating that the rabbinic prohibition is not applicable to wheelchairs because a wheelchair is generally used to traverse only a short distance.10<i class="footnote">It must be stated that no hint of this distinction is found in the discussion recorded in <i>Beiẓah</i> 25b. On the contrary, the Gemara reports that R. Nachman bar Isaac carried Mar Samuel “from the sun into the shade and from the shade into the sun” only because “a multitude” needed him. Similarly, an exception to the ruling permitted students to carry Ameimar and Mar Zutra to their seats in the House of Study.Nevertheless, two other points must be made: 1) The Gemara forbids use of a sedan-chair only for convenience but not for the sick or the infirm in instances in which the passenger would otherwise be afraid of falling. Apparently, then, the rabbinic prohibition forbids use of a sedan-chair only for convenience but not for the sick or the infirm. See <i>Taz, Oraḥ Ḥayyim</i> 622:3. 2) The physical exertion involved in carrying a sedan-chair is far greater and qualitatively different from that required to push a wheelchair or carriage. The former certainly represents a much greater “dishonor of the Sabbath” than do the latter. Hence there is no evidence that the latter were included in the rabbinic edict.</i>
  <i>Rav Pe'alim</i> further contends that "the need of the multitude" is not the sole exception to the prohibition against use of a sedan-chair. <i>Rav Pe'alim</i> asserts that use of a sedan-chair for the purpose of any <i>mizvah</i>, including attendance at synagogue services, is similarly permitted. That is also the position of <i>Teshuvot Yesamaḥ Lev</i>, no. 4. However, <i>Sedei Hemed, Asifat Dinim, Ma'arekhet Yom Tov</i>, no. 1, sec. 32, contends that the exclusion is limited to the "need of the multitude" and that there is no exception to the edict for purposes of fulfilling a <i>mizvah</i>.
  <i>Minḥat Yizḥak</i> is somewhat more lenient in permitting the use of a wheelchair in an area enclosed by an <i>eiruv</i>. Citing <i>Taz, Oraḥ Hayyim</i> 622:3, <i>Minḥat Yizḥak</i> infers from <i>Taz</i>' comments that a person who cannot walk may push his own wheelchair because the rabbinic edict does not apply to a person transporting himself in situations in which he cannot otherwise move from place to place. Accordingly, <i>Minḥat Yizḥak</i> rules that a person may push his own wheelchair in such an area even for a purpose other than fulfillment of a <i>miḥvah</i>.
  <i>Minḥat Yizḥak</i> also recognizes, as did <i>Sho'el u'Meshiv</i>, that there is no rabbinic decree banning the carrying of a person either on <i>Yom Tov</i> or on <i>Shabbat</i> within an area enclosed by an <i>eiruv</i>. Accordingly, <i>Minḥat Yizḥak</i> further implies that, if the wheelchair is to be regarded as an "appurtenance" of the person's body, pushing a wheelchair is no different from carrying the person and the clothes he is wearing and, if so, others may push the wheelchair as well, provided, of course, that the wheelchair is used only within the <i>eiruv</i>. <i>Minḥat Yizḥak</i>, however, regards the status of a wheelchair as an "appurtenance" of the body to be a matter of doubt but nevertheless rules that, since the matter involves a rabbinic prohibition, a permissive ruling is warranted in instances of doubt. As noted earlier, <i>Rav Pe'alim</i> and <i>Maharshag</i> would have no reservation with regard to use of wheelchairs on <i>Shabbat</i> within an area circumscribed by an <i>eiruv</i>.
  
  Chapter VII The Milk Contretemps
  
  <i>R. Simeon says: The word "camel" occurs twice, once referring to a camel born from a camel [as forbidden], and the other, to a camel born from a cow. And the Sages who disagree with R. Simeon—what do they do with the repetition "camel, camel"?—One is to forbid [the camel itself] and the other to prohibit its milk. And whence does R. Simeon derive the prohibition of a camel's milk?—He derives it from the word "et,"[with] the camel</i>.
  BEKHOROT 6b
  In August 1994, a watchful supervisor of kosher milk production became aware of the fact that a surgical procedure had been performed upon the abdomen of a number of cows. He had valid reason to fear that the procedure might render the animal a <i>treifah</i>, i.e., an animal whose meat may not be eaten because it has sustained the perforation of one of the organs whose congenital absence, excision or perforation gives rise to such status.1<i class="footnote">See <i>JTA Daily News Bulletin</i>, August 25, 1994, p. 4 and <i>Der Algemeiner Journal</i>, August 26, 1994, p. 1, col. 5.</i> Jewish law forbids not only eating the meat of such an animal but also prohibits the consumption of milk produced by the animal as well. Acting in a highly responsible manner, the Rabbinate of K'hal Adath Jeshurun of Washington Heights, New York City, acting upon the initiative of its distinguished <i>Dayyan</i>, Rabbi Chaim Kohn, issued a "<i>kashrut</i> alert" on August 16th directing establishments under its supervision to refrain from producing or selling any milk product "pending further clarification." On August 18th it announced that all milk products under its supervision may be used. One day earlier, on August 17th, Rabbi Raphael Blum, the <i>Kashuer Rav</i>, of Bedford Hills, New York, issued a letter addressed to the members of his community in which he ruled that all earlier purchased milk products must be regarded as non-kosher and that all dairy utensils must be <i>kashered</i>. On that very day the Central Rabbinical Congress of the U.S.A. and Canada convened an extraordinary meeting of its members and following extensive deliberations issued a statement declaring all supervised milk products to be acceptable. On the basis of statements subsequently issued by a number of rabbinic supervisors, including New Square Kosher Certification, it is apparent that dairy cows upon whom this surgical procedure has been performed have been removed from herds whose milk are under such supervision.2<i class="footnote">Copies of all statements herein cited are in the possession of this writer.</i>
  I. Left Displaced Abomasum and Its Treatment
  The primary cause of the problem requiring surgical intervention for its correction is apparently the diet provided dairy cows in order to increase the cows' production of milk.3<i class="footnote">Much of the technical information reported herein may be found in Glen F. Hoffsis and Sheila M. McGuirk, “Diseases of the Abomasum and the Intestinal Tract,” <i>Current Veterinary Theory</i>, J. L. Howard, ed. (Philadelphia, 1986), II, 724-737.</i> Housing cows in short stalls may be an aggravating factor since cows confined in such stalls may experience difficulty in rising to their feet. Struggling to rise may cause a malposition of an already dilated abomasum. The problem appears to be virtually non-existent in countries such as Australia and New Zealand where cattle are not normally fed grain but are simply allowed to graze in unconfined pastures.4<i class="footnote">See D. C. Blood and O. Radostits, <i>Veterinary Medicine</i> (Baltimore, 1989), p. 274.</i> The high carbohydrate diet provided in this country, or perhaps the accompanying reduction in consumption of grass, results in a high concentration of unabsorbed free fatty acids which decrease motility of the smooth muscle of the cow's fourth stomach, the <i>keivah</i> or abomasum. As motility decreases, gas formation is increased by the liberation of carbon dioxide from the reaction between rumen bicarbonate and abomasal hydrochloric acid. As a result the abomasum becomes filled with gas. The abomasum normally lies to the right of the ventral midline along the abdominal wall. When distended by gas, the abomasum may become displaced and move to the left flank between the rumen and the body wall. As the distorted abomasum rises and moves out of place it may also become twisted at the point of connection of the abomasum to the intestine. In both its rising and twisting the abomasum behaves in a manner similar to a balloon filled with air. This twisting of the abomasum interferes with the free flow of the contents of the abomasum into the duodenum and the intestines. If the condition is not treated, the cow will stop eating and its milk production will decline drastically or it will suffer torsion displacement of the abomasum and die. Corrective treatment of this condition consists of anchoring the abomasum in its proper place.
  Left displaced abomasum (LDA), as the condition is known, was first recognized in 1950. Since then the diagnosis has been made with increasing frequency. Professionals in the field report that it is their impression that surgical correction of LDA has become much more common in recent years.5<i class="footnote">An early survey of the prevalence of LDA in dairy herds conducted some twenty years ago showed that only 24% of herds reported even one case of LDA and a prevalence rate of just 1.16% among the affected herds. See C. E. Coppock, “Displaced Abomasum in Dairy Cattle—Etiological Factors,” <i>Journal of Dairy Science</i>, vol. 57, no. 8 (August, 1974), pp. 926-933.</i> It is thus not entirely surprising that rabbinic authorities remained unaware until recently of what has now become a relatively high incidence of surgical treatment to correct this condition that causes the animal to become a <i>treifah</i>. The incidence of LDA is the subject of a recent study by Dr. Steven Eicker of Cornell University's New York State College of Veterinary Medicine in Ithaca, New York. His study of some 13,000 cows on 26 farms in New York State6<i class="footnote">The dairy farms included in this survey are mostly large farms, primarily in western and central New York. The investigation was retrospective, thereby assuring that no procedures were modified because of participation in the study, and the procedures were in no way related to any experimental or pedagogic endeavor.</i> shows a variation between farms in the occurrence of left displaced abomasum of between five and fifteen percent.7<i class="footnote">The figure of 0.4% given by Rabbi Moses D. Tendler, <i>Der Algemeiner Journal</i>, August 26, p. 9, col. 1, represents a conjecture with regard to the incidence of intestinal torsion, a twisting of the intestine rather than of the abomasum. Intestinal torsion is a relatively rare condition that is not a significant source of concern with regard to the <i>kashrut</i> of dairy products and is but one of a variety of infrequently performed surgical procedures that may render an animal a <i>treifah</i>.</i> The mean for the farms surveyed is between seven and eight percent. None of the farms surveyed showed a prevalence of less than five percent.8<i class="footnote">Dr. Eicker’s study forms part of an unpublished doctoral dissertation. An abstract of preliminary data reported by Dr. Eicker and a group of his colleagues indicate incidence rates of LDA of 10%. See S. W. Eicker <i>et al</i>., “The Incidence of Left Displaced Abomasum Diseases in Large Commercial Dairy Herds in the North-eastern United States,” <i>Journal of Dairy Science</i>, vol. 76, supplement (June, 1993), p. 297.</i>
  LDA is treated in a variety of different ways:
  1. Drug Treatment: An increase in gastrointestinal motility may increase the tone of the abomasum and thereby cause gas to be expelled with a result that the abomasum returns to its normal position. Calcium solutions, neostigmine and saline cathartics have been used for this purpose. This treatment is frequently unsuccessful and, even when the abomasum does return to its normal position, there is a high incidence of recurrence.
  2. Rolling and Manipulation: LDA can sometimes be corrected by massage and external manipulation of the affected organ. In this non-invasive procedure the cow is turned on its back and rolled vigorously. If the procedure is successful, the accumulated gas will cause the abomasum to "rise" to what is now the top of the animal lying in a prone position, but which is the ventral side of the abdominal cavity when the animal is standing. As a result, the connection of the abomasum to the intestine will become untwisted and the trapped gas will escape through the intestines and the abomasum, no longer distended, will remain in its normal position. This procedure, since it is non-invasive, presents no halakhic complication but, unfortunately, relapse occurs rather frequently.
  3. Omentopexy: An incision of six to eight inches through the muscle tissue is made in the right side of the animal between the thirteenth rib and the hip exposing the abomasum and the omentum (fat having the halakhic status of forbidden <i>ḥelev</i>) surrounding the abomasum. This procedure is known as a right flank laparotomy. The abomasum is then physically pushed back into its normal position. To prevent relapse, a fold of omentum is tucked into the incision and sutured together with the muscle when the incision is closed. This serves to create tautness that, in turn, serves to anchor the abomasum in place.
  Typically, the abomasum is distended to a degree that makes it impossible to manipulate it back to its proper place by means of an incision of this nature. Therefore, in virtually all cases in which omentopexy is performed, the abomasum is deflated by puncturing it with a needle inverted at an angle through the abdominal wall and the accumulated gas is released. Puncture of the abdominal wall presents a halakhic problem in that it would appear that such a procedure renders the animal a <i>treifah</i>.
  4. Abomasopexy: A paramedian laparotomy, i.e., an incision in the underside of the animal above the navel and several inches right of center, is made in order to pull the abomasum into its normal location near the site of the incision. In this procedure, the wall of the abomasum is incorporated in the closure of the abdominal wall. Normally, the sutures pass through only the outer layer of the abomasum and do not penetrate to the lumen, or cavity, of the abomasum. Thus, this procedure should not render the animal a <i>treifah</i>. Nevertheless, this procedure may also be accompanied by decompression of the abomasum by means of a needle puncture thereby giving rise to the same problem presented by omentopexy. Although decompression is rarely necessary in order to assure a successful outcome of abomasopexy, it may be performed for the comfort of the animal or the convenience of the surgeon.
  5. Ventral Closed Suturing Technique (Blind Tack): No incision is made in the abdomen. The animal is laid on its back and its abomasum is manipulated into place. The abomasum is blindly sutured to the abdominal wall by means of a staple-like bar suture or a toggle button. Both the bar suture and the toggle penetrate the cavity of the abomasum, thereby rendering the animal a <i>treifah</i>.9<i class="footnote">A detailed description of these surgical procedures may be found in G. D. Saint Jean <i>et al</i>., “Comparison of the Different Surgical Techniques for Correction of Abomasal Problems,” <i>Compendium on Continuing Education for the Practicing Veterinarian</i>, vol. 9, no. 11 (November, 1987), pp. 377-382.</i>
  Which of these procedures will actually be employed will depend upon a variety of factors, including the severity of the condition, assessments of the chance of recurrence, the relative cost of the various procedures as well as the preference and skill of the veterinary surgeon.
  Care must be taken to distinguish LDA from a condition that has received significant attention in halakhic literature over a period of almost five hundred years. That condition was first described in a gloss appended to <i>Tur, Shulḥan Arukh, Yoreh De'ah</i> 48:2, in the Venice 5282 edition of that work. The malady described in that source is depicted as arising when "the ox fills its <i>keres</i> (rumen) with vegetables." This condition, known as bloat, affects the rumen, the first of the cow's four stomachs, and results from eating excessive quantities of grass. Excessive quantities of grass lead to bloat of the rumen while consumption of excessive carbohydrates leads to displacement of the abomasum. The remedy for bloat of the rumen has been known for hundreds of years, <i>viz</i>., puncture of that organ by any sharp implement. The halakhic ramifications of the procedure have also been discussed by numerous authorities, including R. Judah Asad, <i>Teshuvot Maharya, Yoreh De'ah</i>, no. 60, R. Abraham Danzig, <i>Binat Adam, Sha'ar Issur ve-Heter</i>, no. 26; R. Joseph Saul Nathanson, <i>Sho'el u-Meshiv, Mahadura Kamma</i>, III, no. 81;R. Shalom Mordecai Schwadron, <i>Da'at Torah, Yoreh De'ah</i>, 48:3; R. Yechiel Michel Epstein, <i>Arukh ha-Shulḥan, Yoreh De'ah</i> 48: 7-14; and R. David Zvi Hoffmann, <i>Melammed le-Ho'il</i>, II, no. 9. <i>Melammed le-Ho'il</i> describes that procedure as one that was commonly performed in Germany.
  II. Applicability of Kol de-Parish
  An inquiry submitted to the late R. Moshe Feinstein over forty years ago, in 1952, by Rabbi Elimelech Schwartz of Kansas City concerns "animals that the doctors puncture between the ribs to remove gas." In light of the widespread employment of this veterinary procedure, Rabbi Schwartz questions the reliability of <i>kashrut</i> certification of meat purveyed as kosher. In his response, published in <i>Iggerot Mosheh, Yoreh De'ah</i>, I, no. 20, Rabbi Feinstein takes it for granted that the procedure in question involves perforation of the <i>keres</i>, i.e., the rumen.
  There is a controversy both in the Gemara, <i>Hullin</i> 50b, and among the early decisors with regard to the status of an animal whose <i>keres</i> has sustained a trauma of this nature. Shulḥan Arukh, Yoreh De'ah 48: 2, rules that the animal is a <i>treifah</i>.10<i class="footnote"><i>Iggerot Mosheh</i> states that the import of that ruling is that status of the animal is that of a <i>safek</i>, or doubtful, <i>treifah</i> but that the animal is nevertheless forbidden. Cf., <i>Pitḥei Teshuvah, Yoreh De‘ah</i> 48:2.</i> However, perforation of the <i>keivah</i> renders the animal a <i>treifah</i> according to all authorities. Statistically, the incidence of bloat is far less prevalent than that of LDA. The halakhic problems occasioned by procedures to correct each of these conditions are identical although, for some authorities, the resolution of those problems is somewhat different.
  With regard to the question addressed to Rabbi Feinstein concerning the permissibility of meat slaughtered as kosher, <i>Iggerot Mosheh</i> explains that animals brought to market are permissible on the basis of the principle <i>kol de-parish me-rubba parish</i> and carefully delineates the parameters of that principle. The principle is applicable to situations in which both permitted and prohibited entities are known to exist but in which the prohibited entities are neither discernible nor known to be commingled with permitted entities. Put simply, the principle establishes that, if the majority of the entities are members of a permitted class and one of the entities becomes separated from the larger group, the separated entity is presumed to be one of the permitted majority rather than one of the prohibited minority. Quite apart from the question at hand, it is precisely that principle which must be relied upon in eating any animal product. Although the majority of animals (that are members of permitted species) are kosher, a significant minority are <i>treifot</i>. Since, with the exception of the lungs, there is no obligation to examine the animal's organs for possible <i>treifot</i>, and it is indeed impossible to examine a properly slaughtered animal for all possible forms of <i>treifot</i>, permissibility of the animal's meat rests upon the principle of <i>kol de-parish me-rubba parish</i>. Since none of the internal organs can be examined while the animal is yet alive, it is obvious that the permissibility of milk is also predicated upon this principle. Thus, the mere knowledge that the procedure in question is performed upon a minority of cattle presents no inherent halakhic problem; indeed, acknowledgment that a significant minority of animals are <i>treifot</i> is an accepted principle of Halakhah. Thus, under usual circumstances, milk is unquestionably permissible on the basis of the principle <i>kol de-parish me-rubba parish</i>.
  It should not be thought that reliance upon <i>kol de-parish</i> is tantamount to acceptance of a leniency of some sort or that abjurance of such reliance constitutes a form of meritorious pietism. R. Moshe Sofer, <i>Teshuvot Hatam Sofer, Oraḥ Hayyim</i>, no. 83, s.v. <i>u-mihu</i>, observes that one who acts in accordance with this principle and then subsequently discovers that he has consumed meat of a non-kosher animal has committed no transgression whatsoever and requires no atonement "for He who commanded and admonished with regard to the <i>treifah</i> is the One who commanded us to rely upon the majority."11<i class="footnote">See also <i>Teshuvot Ḥatam Sofer, Yoreh De‘ah</i>, no. 175, s.v. <i>ve-‘ayein</i>.</i> Rather, one who declines to be governed by the principle of <i>kol de-parish</i> demonstrates himself to be theologically suspect.12<i class="footnote">This is not the case when a <i>rei‘uta</i>, or empirically founded reason for suspicion of <i>treifut</i>, exists. Members of the family of the sainted <i>Ḥafeẓ Ḥayyim</i> relate that, as was common in Eastern European villages and small towns, the family owned a cow. At one point, without explanation, <i>Ḥafeẓ Ḥayyim</i> stopped drinking milk from the cow but made no effort to restrain the members of his family from doing so. Some time later, the cow ceased giving milk and was slaughtered. Upon examination, adhesions were found on the cow’s lungs and it was ruled to be a <i>treifah</i>. Apparently, <i>Ḥafeẓ Ḥayyim</i> found reason to suspect that something was amiss but whatever gave rise to his apprehension did not rise to the level of the normative halakhic standards establishing a <i>safek</i>.</i> The principle of <i>kol de-parish</i>, in its basic formulation, applies in situations in which both permitted and prohibited entities are known to be in existence but there is no knowledge that they have become commingled in a single recognizable group. The problem becomes more complex in situations in which it is known that a non-kosher entity has become commingled with kosher entities, e.g., it is known that a non-kosher animal is actually present within a specific herd. Under such circumstances each animal is prohibited as a <i>safek treifah</i>, i.e., as doubtfully kosher.
  Nevertheless, even in such situations, most authorities maintain that any animal that becomes separated from the herd is permissible on the theory that the principle of <i>kol de-parish</i> establishes a presumption that the origin of the separated entity is from among the majority of entities within the larger group. Similarly, those authorities maintain that if a gentile separates an animal from the herd it is permissible on the basis of <i>kol de-parish</i>. <i>Tosafot</i>, <i>Sanhedrin</i> 80a and <i>Zevaḥim</i> 70b, rule that it is even permissible for a Jew to cause animals to become separated from the herd individually in order to acquire the status of permitted animals by virtue of <i>kol de-parish</i>. However, Shulḥan Arukh, Yoreh De'ah 110:6, follows the opinion of those who maintain that such a procedure is prohibited by rabbinic edict lest the individual err and remove the animal directly from the herd. In the latter case, the animal is forbidden since <i>kol de-parish me-rubba parish</i> is not applicable so long as the animals remain <i>in situ</i>. Rosh, cited by <i>Tur, Yoreh De'ah</i> 110, and apparently followed by <i>Shakh, Yoreh De'ah</i> 110:36, maintains that, once the presence of a <i>treifah</i> within the herd becomes known, all the animals are prohibited and the principle of <i>kol de-parish me-rubba parish</i> does not serve to confer status as a kosher animal upon an animal that became separated from the herd. However, even according to that opinion, animals acquired prior to discovery of the fact that there was a <i>treifah</i> in the herd remain permissible.13<i class="footnote">Rabbi Menasheh Klein, <i>Der Algemeiner Journal</i>, September 2, 1994, p. 20, propounds an original thesis in asserting that, whenever there are a number of known <i>treifot</i> within a herd, any animal that becomes separated from the herd must be regarded as a <i>treifah</i> and hence its milk is also non-kosher. The <i>kashrut</i> of any animal is determined on the basis of <i>kol de-parish</i> despite the fact that it is concomitantly presumed that a minority of all animals are <i>treifot</i>. This minority is a significant one (<i>mi‘ut ha-maẓui</i>) as evidenced by the halakhic requirement of the examination of the animal’s lungs subsequent to slaughter. <i>Teshuvot Rivash</i>, no. 193, declares that the minority of all <i>treifot</i> is “close to one half.” If so, argues Rabbi Klein, the presence of even a small number of known <i>treifot</i>, when added to the “close to one half” of the other animals that are also <i>treifot</i>, results in a situation in which an actual majority of the animals in the herd are non-kosher. Hence, concludes Rabbi Klein, under such circumstances, the principle of <i>kol de-parish</i> operates to establish that any individual animal that becomes separated from the herd is a <i>treifah</i>.Rabbi Klein himself concedes that this line of reasoning is novel. It is certainly evident from the ruling of Rema, <i>Yoreh De‘ah</i> 81:2, that the principle of <i>kol de-parish</i> remains operative if there are at least sixty kosher cows in the herd for each non-kosher cow. More significantly, if taken to its logical conclusion, Rabbi Klein’s thesis would yield the conclusion that, whenever a significant number of animals of a given species are known to be <i>treifot</i>, no member of that species could be considered to be kosher. The principle of <i>kol de-parish</i> is a principle applied to the class of all animals and to all members of a species. If “close to one half” of all animals are presumed to be <i>treifot</i>, the addition of a significant quantity of known <i>treifot</i> would serve to create a situation in which the majority of all animals or of all members of a species are <i>treifot</i>.It seems to this writer that the halakhic presumption that a significant minority of animals are <i>treifot</i> or that, according to <i>Teshuvot Rivash</i>, “close to one half” are <i>treifot</i>, is a presumption whose formulation takes into account known <i>treifot</i> as well as animals regarding whose status no information is available. Thus, in identifying an animal as a <i>treifah</i> it has been identified as a member of the minority which totals no more than “close to one half” and hence there is no basis to consider that animal as an aggregation to the minority.</i>
  The halakhic issues affecting the <i>kashrut</i> of the milk posed by procedures utilized to correct LDA are analyzed by R. Shalom J. Gross in a relatively short but incisive discussion and in a wider ranging survey by R. Menasheh Klein. Both discussions appear in <i>Der Algemeiner Journal</i>, September 2, 1994, pp. 20-21. A brief item authored by R. Shlomoh ha-Kohen Gross, <i>dayyan</i> of the Belz community in Brooklyn, appears in the Tishri 5755 issue of <i>Ha-Pardes</i>.
  Rabbi Shalom Gross carefully shows why the present situation regarding the <i>kashrut</i> of milk is halakhically different from the question of the <i>kashrut</i> of the meat of slaughtered animals as explicated by <i>Iggerot Mosheh</i>. One highly significant difference is not noted by Rabbi Gross, <i>viz</i>., the percent of beef cattle upon whom decompression of the rumen is performed in order to relieve bloat is far lower than the percent of dairy cows suffering from LDA. Indeed, even the incidence of LDA in beef cattle is believed to be far lower than among dairy cows. However, that factor, in itself, is of no consequence whereas the differences noted by Rabbi Gross are themselves halakhically dispositive. Following the position of Rosh and <i>Shakh, Iggerot Mosheh</i> pointedly comments that, when it is known that a particular cattleman is in possession of an animal that has been rendered a <i>treifah</i> as a result of a procedure of this nature, none of his animals may be purchased for kosher slaughter. Thus, the principle of <i>kol de-parish</i> does not at all apply in the case of milk acquired from a dairy farm in which even a single animal has been rendered a <i>treifah</i> in this manner. Moreover, declares <i>Iggerot Mosheh</i>, the non-Jewish seller has no credibility to represent any of his animals as free from that defect unless the existence of the <i>treifah</i> is known only through the owner's own admission or, alternatively, information establishing that a particular animal is free from the defect is disclosed by the seller in the course of casual conversation in a manner not designed to convey such information to the purchaser for any significant purpose (<i>mesiaḥ le-fi tumo</i>). Since many farmers customarily retain written or computerized records of all veterinary procedures performed upon dairy cows,14<i class="footnote">Rabbi Klein’s assertion that such records are a responsibility mandated by government regulation is inaccurate. See <i>Der Algemeiner Journal</i>, September 2, 1994, p. 20, col. 1, s.v. <i>u-levarer</i> and s.v. <i>gam</i>.</i> whether or not such a procedure has been performed upon any of the farm's cows may be readily determinable.15<i class="footnote">The records will not necessarily disclose which of the various available procedures was employed to correct the problem. That information, however, can often be obtained from the veterinarian who performed the procedure and can also be determined by examining the animal to determine the location of the surgical incision. It must be reiterated that omentopexy and blind tacking always cause the animal to become a <i>treifah</i> and abomasopexy occasions at least a <i>safek treifah</i>.</i> It is clearly mandatory to seek such information in order to become aware of problems of <i>treifot</i> when such information is available. In point of fact, when such a treatment has been performed, evidence of the incision can usually be seen by the naked eye unless a midline incision has been made, in which case it may not be readily visible after a period of approximately one year.
  Fundamental to an analysis of the relevant halakhic principle is a point passed over in silence by Rabbi Gross, presumably because it is so obvious. The <i>kashrut</i> of animals brought to slaughter is predicated upon <i>kol de-parish</i>, i.e., a halakhic presumption with regard to each animal establishing that it is a member of the major class of kosher animals. That principle is not at all relevant to the status of milk collected from all cows on a farm known to have a <i>treifah</i> in its herd and mixed in common utensils. Since some of the milk is definitely non-kosher the only relevant principle is <i>bittul be-rov</i>, or "nullification by the majority." <i>Bittul be-rov</i> does not apply antecedently to the non-kosher animal itself both because the non-kosher animal is recognizable and because living creatures are not subject to <i>bittul</i> or "nullification." In practice, in order for <i>bittul</i> to occur, the quantity of kosher milk must not only be greater than the non-kosher milk but must be sixty times as great as the quantity of non-kosher milk. Stated somewhat differently, the non-kosher milk cannot exceed 1.63% of the total quantity of the mixture. Rema, <i>Yoreh De'ah</i> 81:2, rules that milk produced on a farm is permissible provided there are sixty times more kosher animals than <i>treifah</i> animals in the herd maintained on the farm. Absent information to the contrary, it is presumed that, on average, each cow yields an equal quantity of milk.16<i class="footnote"><i>Shakh, Yoreh De‘ah</i> 81:7, rules that if the non-kosher cow is known to produce more milk than any one of the kosher cows, this presumption is rebutted. Under contemporary circumstances, even according to <i>Shakh</i>, when production records are maintained for each cow, the calculation of one-sixtieth must be made in terms of the proportion of the milk derived from the non-kosher cow compared with the total yield of all cows in the herd.</i>
  Thus, in the situation under discussion, it must be determined whether the cows subjected to a <i>treifah</i>-rendering procedure represent more or less than one-sixtieth of all the cows whose milk is commingled in the production process. Since the overall incidence of LDA in dairy cattle in some areas is between five and fifteen percent, it is highly likely that the milk coming from a farm in which surgical procedures to correct LDA are carried out must be regarded as non-kosher, particularly in areas in which the problem is routinely corrected by omentopexy or blind tacking. That, however, is a matter that must be determined with regard to each herd separately.
  III. Organ Perforation and Treifut
  As has been stated, an animal that has been treated for LDA by a method involving puncture of the abomasum is ostensibly a <i>treifah</i>.17<i class="footnote">Each of the various individuals who has written on this topic speaks of a puncture of the rumen as well. Rabbi Klein, p. 21, col. 3, s.v. <i>u-me-’atah</i>, cites a report of a veterinarian who was observed to have made “a large hole in the rumen and afterwards he punctured the abomasum.” Such reports are undoubtedly inaccurate. None of the measures described in the literature for the correction of LDA involve any procedure performed upon the rumen. Accordingly, discussions by those writers of the <i>keres</i> and the fat surrounding the <i>keres</i> are entirely irrelevant.</i> The Mishnah, <i>Hullin</i> 42a, lists perforation of the <i>keivah</i> or abomasum as one of the enumerated <i>treifot</i>.18<i class="footnote">A problem also exists in situations in which the veterinarian claims to have corrected the problem by means of a surgical procedure, such as abomasopexy, without decompressing the abomasum. R. Moshe Sofer, <i>Teshuvot Ḥatam Sofer, Yoreh De‘ah</i>, no. 122, prohibited consumption of stuffed geese that had been punctured under the wing because of a fear that the fowl’s lung may have been perforated. There would appear to be similar reason to fear that an abdominal incision might inadvertently lead to perforation of an organ that would render the animal a <i>treifah</i>. However, elsewhere, in discussing a situation involving bloodletting in the area of the neck, <i>Teshuvot Ḥatam Sofer, Yoreh De‘ah</i>, no. 21, <i>Ḥatam Sofer</i> dismisses such a concern on the grounds that a skilled professional would not err in such a matter. R. Shalom Mordecai Schwadron, <i>Da‘at Torah</i> 33:30, asserts that <i>Ḥatam Sofer</i> does so only because, in that case, he found other permissive factors upon which to base his ruling. See also, R. Meir Asch, <i>Teshuvot Imrei Esh, Yoreh De‘ah</i>, no. 24; <i>Teshuvot Ḥesed le-Avraham, Yoreh De‘ah</i>, no. 25; <i>Teshuvot Brit Avraham</i>, nos. 22 and 23; and <i>Teshuvot Maharya, Yoreh De‘ah</i>, no. 60. R. Yitzchak Ya’akov Weisz, <i>Teshuvot Minḥat Yiẓḥak</i>, IV, no. 57, sec. 12, requires examination of the internal organs in such situations and cites authorities who also stipulate that the animal may be regarded as kosher only if it survives for a period of twelve months.</i> This provision of the laws of <i>treifot</i> is codified in Shulḥan Arukh, Yoreh De'ah 48:1.
  <i>Shulḥan Arukh</i>, based upon the discussion of the Gemara, <i>Hullin</i> 49b, qualifies this ruling by stating that if the perforation is closed by fat lying upon the <i>yeter</i>, the inner or lesser curvature of the abomasum, the animal is kosher, whereas if it is closed by the fat of the <i>keshet</i>, or "bow," i.e., the outer or greater curvature of the abomasum, the animal is not kosher. That provision is in accordance with a rule formulated in <i>Yoreh De'ah</i> 46:1 providing that, with a number of exceptions, a perforation "closed" by permitted fat adhering to an organ does not render the animal a <i>treifah</i> whereas the animal remains a <i>treifah</i> despite closure of a perforation by prohibited fat, or <i>ḥelev</i>. That qualification, however, is of no significance with regard to the matter under discussion. This principle reflects the consideration that a puncture that does not penetrate the full thickness of the wall of the organ does not render the animal a <i>treifah</i>. The fat described as "closing" the wound is depicted as a structure that congenitally adheres to the organ and is tightly attached to it.19<i class="footnote">Thus the distinction between the role of permitted fat and forbidden <i>ḥelev</i> in closing the puncture is not rooted in considerations of permissibility or prohibition but in the disparate nature and structure of those tissues. Forbidden fat is covered by a membrane that is readily peeled away and does not adhere firmly to the underlying organ whereas permitted fat, by its nature, adheres firmly to the organ and, consequently, the organ is not regarded as having been punctured through and through unless the covering layer of fat is penetrated as well. See <i>Ḥullin</i> 49b and <i>Arukh ha-Shulḥan, Yoreh De‘ah</i> 46:2.</i> Therefore, the organ wall is not deemed to have been pierced in its entirety unless the layer of fat adhering to it has been penetrated as well. Once the organ is pierced, a receding overlay or growth of a layer of fat upon the opening cannot correct the defect any more so than does natural sealing of the wound or the growth of scar tissue. Rashi, <i>Hullin</i>, 43a, s.v. <i>eino krum</i>, carefully explains that a puncture can be "closed" by surrounding tissue only "at the beginning" but not by tissue that grows subsequently.20<i class="footnote"><i>Derishah, Yoreh De‘ah</i> 36:2, explains that tissue that is naturally present serves effectively to close the puncture because it is strong and firm in contradistinction to a “membrane” arising in the course of the healing process that is weaker and hence likely to tear at some time in the future. Cf., <i>supra</i>, note 17. A different explanation is advanced by <i>Shakh, Yoreh De‘ah</i> 36:6, and <i>Taz, Yoreh De‘ah</i> 36:4, who state simply that the “closing” must be simultaneous with the puncture. <i>Derishah</i> also cites another explanation, <i>viz</i>., a hole tightly sealed by adjacent tissue that is already present does not leave the internal portion of the organ exposed and hence, for purposes of <i>treifut</i>, is not a “hole.” Cf., <i>Tevu’at Shor, Yoreh De‘ah</i> 36:14, and <i>infra</i>, note 21. Cf. also, <i>Dagul me-Revavah, Yoreh De‘ah</i> 49:2, who, quoting Ran, <i>Ḥullin</i> 46b, cited <i>infra</i>, note 22, asserts that a hole capable of closure by means of fat is not a hole that renders an animal a <i>treifah</i>.</i> As stated by the Gemara, <i>Hullin</i> 68b, "a <i>treifah</i> animal, once it has been rendered a <i>treifah</i>, can never become permissible."21<i class="footnote">Cf., <i>Teshuvot Ne’ot Desheh</i>, no. 127, who asserts that <i>Tosafot</i> and other early-day authorities disagree with the thesis expounded by Ran as cited later in this footnote, and analyze the talmudic discussion in <i>Ḥullin</i> 44a in a manner that accepts the notion that <i>treifut</i> can be reversed. However, contrary to the suggestion of R. Shlomoh ha-Kohen Gross, <i>Ha-Pardes</i>, Tishri 5755, p. 23, <i>Ne’ot Desheh</i> declares explicitly that, even according to <i>Tosafot</i>, the concept of reversible <i>treifut</i> is limited to explicitly mentioned <i>treifut</i> of the lungs. [According to Maharshal there is a further exception with regard to certain afflictions of the kidney. See <i>Taz, Yoreh De‘ah</i> 44:13, and <i>Shakh, Yoreh De‘ah</i> 44:15.] <i>Ne‘ot Desheh</i> further declares that it is impossible for us to adjudicate between the conflicting views of <i>Tosafot</i> and Ran.The suggestion that <i>treifut</i> arising from a perforation is reversible was advanced by R. Israel Belsky in an article published in <i>Ha-Metivta</i>, Sivan 5747, long before recognition of a problem regarding the <i>kashrut</i> of milk in light of the prevalence of LDA. The evidence adduced by Rabbi Belsky in support of that thesis on the basis of terminology employed by Rashi and <i>Shakh</i> indicating that closure of a perforation by a membrane does not assure the <i>kashrut</i> of the animal because the membrane itself may become tom is not at all dispositive. The underlying principle is that a trauma causing damage that is correctable does not at all render the animal a <i>treifah</i>, i.e., the animal does not return to a permissible status subsequent to correction of the damage but is judged <i>ab initio</i> not to have been a <i>treifah</i>. Thus, the import of Rashi’s statement is simply that, were an animal to develop a strong, permanent seal, growth of such a seal would reveal that the animal was never a <i>treifah</i>; but, since every membrane grown to seal a puncture will eventually become perforated, every animal suffering such a puncture is a <i>treifah</i>. See Ran, <i>Ḥullin</i> 46b; <i>Taz, Yoreh De‘ah</i> 44:13; <i>Dagul me-Revavah</i> 49:2; and <i>Teshuvot Ne‘ot Desheh</i>, no. 127. The principle that “once a <i>treifah</i>, always a <i>treifah</i>” is expressly formulated by Rashba, <i>Ḥullin</i> 44a. Rabbi Belsky’s contention that this thesis is formulated by Rashba only in elucidation of a question posed by the Gemara but is abandoned in the Gemara’s resolution of that difficulty is rebutted by citation of Rashba’s statement as a normative principle by <i>Pri Megadim, Mishbeẓot Zahav</i> 36:3. See also, <i>Pri Megadim, Mishbeẓot Zahav</i> 33:4, cited later in this footnote. Moreover, Rashba himself, in his <i>Mishmeret ha-Bayit, Hilkhot Bedikah</i>, p. 35a, explicitly affirms this principle as a normative rule pertaining to all <i>treifot</i>, including those resulting from perforation of internal organs as does Ran, <i>Ḥullin</i> 46b. Indeed, Rashba, <i>Mishmeret ha-Bayit, loc. cit</i>, explicitly explains that the principle “once a <i>treifah</i>, always a <i>treifah</i>” is elucidated and affirmed by the Gemara in its concluding statement. Even more significant is the fact that elsewhere, <i>Ḥullin</i> 68b, the Gemara declares unequivocally “a <i>treifah</i> animal, once it has been rendered a <i>treifah</i>, can never be permissible.”As has already been noted, the Gemara, in its concluding statement, <i>Ḥullin</i> 44a, must be understood as affirming the principle “once a <i>treifah</i>, always a <i>treifah</i>” at the same time that it affirms the rule that an animal whose lung has been perforated cannot be regarded as kosher unless the perforation becomes encased in muscle tissue. The problem presented by the fact that the perforated lung is not immediately sealed by muscle tissue but remains exposed until the muscle grows around the perforation is readily resolved on the basis of the thesis developed by Ran, <i>Ḥullin</i> 46b, <i>viz</i>., a perforation destined to be sealed is not a perforation that renders an animal a <i>treifah</i>. It is for this reason that <i>Tevu’at Shor, Yoreh De‘ah</i> 36:14, finds <i>Derishah</i>’s analysis of “a closure from the beginning” (<i>setimah me-‘ikara</i>) to be correct and that of <i>Shakh</i> to be superfluous. See <i>supra</i>, note 20. Rashba, <i>Mishmeret ha-Bayit, Hilkhot Bedikah</i> 34a, disagrees with Rashi’s contention that all adhesions of the lung arise at the site of a perforation and hence has no basis for accepting Ran’s thesis that perforations destined to be healed do not render an animal a <i>treifah</i> since that thesis was developed by Ran for the specific purpose of explaining why certain adhesions do not render the animal a <i>treifah</i>. Accordingly, <i>Mishmeret ha-Bayit</i> explains that, although the rule is that a perforation of the lung renders the animal a <i>treifah</i> unless the site of a perforation subsequently becomes encased in muscle tissue, it is not subsequent “closure” by muscle tissue that serves as a corrective but immediate closure by the rib cage itself. Subsequent enclosure by muscle tissue is simply evidence that the original “closure” by the rib cage was a strong, solid closure that will not subsequently open or loosen. As cited <i>supra</i>, note 20, <i>Shakh</i> and <i>Taz</i>, who define <i>setimah me‘ikara</i> as simultaneous sealing of the perforation, must be understood as explaining that concept in accordance with the view of <i>Mishmeret ha-Bayit</i> rather than in accordance with the thesis of Ran. Cf. <i>Pri Megadim, Mishbeẓot Zahav</i> 36:3. [The position of Re’ah, <i>Bedek ha-Bayit, Hilkhot Bedikah</i>, p. 34b, in ruling that a perforation of an organ other than the lung or the esophagus that is subsequently sealed by a “membrane” does not render the animal a <i>treifah</i> must be understood in accordance with the earlier-cited thesis of Ran. See <i>Even Shlomoh, Sefer Ra’avan</i>, sec. 126. Re’ah also follows Rashi in stating that an adhesion of the lung is indicative of a previous perforation. That position entails acceptance of Ran’s thesis. Thus Re’ah’s position in this matter is entirely consistent.] The alternative explanation cited by <i>Derishah</i>, i.e., that <i>treifut</i> occurs when an organ is exposed by means of a puncture and therefore there is no <i>treifut</i> when the perforation is simultaneously sealed, leaves a problem with regard to a perforation of the lung that is subsequently sealed by encasement in muscle tissue, <i>viz</i>., a puncture of that nature does leave the organ exposed for a time and hence the animal should remain a <i>treifah</i>.As earlier noted, <i>Teshuvot Ne’ot Desheh</i>, no. 127, declares that an animal remains a <i>treifah</i> despite the fact that the puncture has healed because the tissue sealing the perforation is also “in the category of a membrane arising from a wound.” Noteworthy are the remarks of <i>Pri Megadim, Mishbeẓot Zahav</i> 33:4, who suggests that, although a <i>treifah</i> is not expected to survive for more than a twelve month period, nevertheless if a perforation is sealed by “a membrane arising from a wound” the animal may indeed survive for “a thousand years” and yet the animal remains a <i>treifah</i>. The identical point is made by <i>Naḥal Eshkol, Hilkhot Treifut</i>, no. 17, p. 14, sec. 2. Cf. <i>Teshuvot Ketav Sofer, Yoreh De‘ah</i>, no. 20, sec. 9 and <i>Da‘at Torah</i>, introduction to <i>Hilkhot Treifot</i>, sec. 20.The foregoing notwithstanding, one authority, R. Raphael ha-Kohen Hamburger, <i>Torat Yekuti’el, Yoreh De‘ah</i> 44:6, does deny the principle that the status of an animal that has become a <i>treifah</i> is irreversible and endeavors to interpret the opinion of earlier authorities in a manner consistent with that view. See <i>infra</i>, note 35. Rabbi Belsky’s discussion effectively parallels that of <i>Torat Yekuti’el</i>.See also R. Elchanan Wasserman, <i>Koveẓ Shi‘urim, Pesaḥim</i>, sec. 120, who affirms the principle but cites an apparently contradictory statement of Ramban, <i>Ḥullin</i> 76a. Although Ramban’s statement is problematic insofar as the point R. Elchanan seeks to establish is concerned, Ramban explicitly affirms the principle “once a <i>treifah</i>, always a <i>treifah</i>.” He does, however, declare that trauma to one specific organ, <i>viz</i>., the <i>ẓumat ha-gidin</i> that renders an animal a <i>treifah</i>, is reversible by amputation of the entire limb since loss of that portion of the foot does not render the animal a <i>treifah</i> despite the fact that trauma to a portion of an existent foot, i.e., the <i>ẓumat ha-gidin</i>, does render the animal a <i>treifah</i>.</i> A rather obvious ramification of this principle is that provisions regarding the "closing" of a wound by fat are restricted to situations in which the fat itself has not been pierced.22<i class="footnote">This point is in no way contradicted by the comments of Ran, <i>Ḥullin</i> 46b, or by the comments of <i>Dagul me-Revavah, Yoreh De‘ah</i> 49:2, who explain that, according to Rashi, certain types of perforations of the lung do not render the animal a <i>treifah</i> if they are subsequently closed by adhesions. In those cases, as Ran carefully explains, the puncture is defined as a hole that does not generate <i>treifut</i> and is not at all comparable to the case of a hole that has penetrated both the organ and covering fat that does indeed render the animal a <i>treifah</i>. Nor is this point contradicted by the position of the authorities cited by <i>Avnei Nezer, Yoreh De‘ah</i>, no. 25, who maintain that a hole sealed by the tissue of another organ does not render the animal a <i>treifah</i>. In that case, the tissue that seals the hole is treated as part of the organ itself. Hence, since that tissue was never pierced, the animal, according to these authorities, is not deemed to be a <i>treifah</i>.</i> The Gemara, <i>Hullin</i> 48a, states that an animal that has sustained a puncture that is sealed by adjacent tissue nevertheless becomes a <i>treifah</i> when the adjacent tissue is itself punctured. This point is readily grasped from the comments of <i>Arukh ha-Shulḥan, Yoreh De'ah</i> 46:8. R. Shalom Mordecai Schwadron, <i>Da'at Torah, Yoreh De'ah</i> 46:4, in discussing the case of a needle that has penetrated the wall of an organ and has become lodged in fat that seals the hole, states quite explicitly that in circumstances in which there is reason to suspect that a needle "may have pierced through and through" but subsequently became partially withdrawn within the overlay of fat with resultant healing of the punctured portion vacated by the needle, the animal is a <i>treifah</i>.23<i class="footnote">See also the comment of <i>Mishmeret ha-Bayit, Hilkhot Bedikah</i>, p. 35a.</i>
  It is thus readily apparent that the provisions recorded in <i>Yoreh De'ah</i> 46:1 and 48:1 apply solely to situations in which the perforation of the organ originates in the internal portion of the organ, e.g., the animal swallows a needle or other sharp object that penetrates the wall of the organ but fails to puncture the covering layer of fat as well. These provisions have no application in situations involving surgical incision of the organ since, in such cases, the surrounding layer of fat must be incised in order to penetrate the wall of the organ. Moreover, the abomasum is generally decompressed by piercing the area covered by the <i>keshet</i>,24<i class="footnote">See also Rambam’s definition of <i>yeter, Hilkhot Ma’akhlot Asurot</i> 7:6 and cf., <i>Arukh ha-Shulḥan, Yoreh De‘ah</i> 48:2.</i> or prohibited fat, that does not at all serve as a barrier, i.e., does not serve to "stop" the puncture.25<i class="footnote">Cf., however, <i>Teshuvot Maharya, Yoreh De‘ah</i>, no. 60, s.v., <i>ve-‘od</i>, who notes that whether or not prohibited fat can “stop” a puncture is a matter of controversy between Rav and R. Sheshet as recorded by the Gemara, <i>Ḥullin</i> 49b. Accordingly, he tentatively suggests that the ruling declaring such fat not capable of sealing a puncture may not be absolute but reflective of an inability to resolve this controversy. If so, survival for a period of twelve months may suffice to render the animal permissible. See <i>Yam shel Shlomoh, Ḥullin</i> 3:80. However, <i>Teshuvot Maharya, loc. cit</i>., s.v. <i>aval</i>, concludes that <i>Shulḥan Arukh</i>’s ruling stating that forbidden fat cannot seal a puncture is dispositive and hence survival for a twelve-month period is irrelevant. See also the responsum of R. Mendel Kargau published in <i>Melammed le-Ho’il</i>, II, no. 9, in which he states that survival for a period of twelve months does not serve to resolve a matter of doubt arising from a controversy recorded in the Gemara.</i>
  Another qualification of the general rule regarding perforation of organs rendering an animal a <i>treifah</i> is considered by R. Judah Asad, <i>Teshuvot Maharya, Yoreh De'ah</i>, no. 60. That discussion is directly relevant to the halakhic analysis of the procedure employed in treating LDA because, in decompressing the abomasum, the puncture is made at an angle such that the internal layer is pierced at a distance of approximately one-half inch from the puncture of the external layer. Angled decompression is the procedure of choice because it serves both to decrease the likelihood of infection and to hasten healing of the wound.
  <i>Mahari Asad</i>'s interlocutor suggested that oblique penetration of an organ such as the rumen should not render the animal a <i>treifah</i>. A puncture that is blocked by flesh, or even by permitted fat, does not render the animal a <i>treifah</i> since the hole is regarded as incomplete. Similarly, he argued, an angled puncture leaves tissue covering the hole at every point of penetration; accordingly, at no point does there result a hole that is not blocked. <i>Mahari Asad</i> rejects that contention by demonstrating that such an inference is contradicted by statements of <i>Teshuvot ha-Rashba</i>. Indeed, <i>Teshuvot ha-Rashba</i>, I, no. 383, writes that perforation of the small intestine renders the animal a <i>treifah</i> "whether the hole is straight or whether the hole is angled." Furthermore, argues <i>Mahari Asad</i>, the argument is cogent only if the hole in the wall of the organ is made incrementally in a manner such that tissue collapses and "closes" each small punctured segment before the next is made, but does not apply when the entire length of a needle or instrument is allowed to penetrate the entire wall at once and to remain in place until the accumulated gas is removed. Under such circumstances, even an angled puncture is not blocked.26<i class="footnote">In piercing the abomasum, even if the needle is tunneled in order to pierce the various layers at different points in order to facilitate healing, the holes must be aligned in order to allow the accumulated gas to escape. Thus, the animal whose abomasum has been punctured in this manner is a <i>treifah</i>.</i>
  The identical point was made earlier by <i>Teshuvot Noda bi-Yehudah, Yoreh De'ah, Mahadura Tinyana</i>, no. 18, sec. 5. <i>Noda bi-Yehudah</i> similarly dismisses peremptorily the contention that an angled puncture does not render an animal a <i>treifah</i> with the comment that his interlocutor "has not spoken properly" and that "it is not necessary to rebut a matter that is a nullity." R. Shlomoh Kluger, <i>Teshuvot Tuv Ta'am va-Da'at</i>, II, no. 178, discusses a similar question with regard to the puncture of the stomach of a fowl. <i>Teshuvot Tuv Ta'am va-Da'at</i> cites the comments of Rosh, <i>Hullin</i> 43a, indicating that the animal is a <i>treifah</i> because a puncture makes it possible for partially digested food to invade the abdominal cavity27<i class="footnote">See also <i>Tosafot, Ḥullin</i> 50b, s.v. <i>maḥat</i>; cf., however, Rema, <i>Yoreh De‘ah</i> 47:5 and <i>Da‘at Torah, Yoreh De‘ah</i> 46:1.</i> and concludes that the same result will occur if the puncture is angled.28<i class="footnote">Cf. <i>Da‘at Torah, Yoreh De‘ah</i> 48:4, who relies upon this line of reasoning when the puncture occurs in the very top portion of the organ and the animal survives for a period of twelve months.</i> Earlier, in discussing a question involving a needle found in the wall of a goose's stomach, <i>Teshuvot Radvaz</i>, IV, no. 58, states that he would not rely upon the fact that the needle was crooked but employs it only as a <i>snif</i>, or additional consideration, in light of other factors that render the animal permissible. This consideration is, however, relied upon by R. Yonatan Eybeschutz, <i>Kereti u-Peleti, Yoreh De'ah</i> 31:1.29<i class="footnote">See also the citation of <i>Hagahot Minḥat Aharon</i> 31:1.</i> <i>Kereti u-Peleti</i> appears to be unaware of the contradictory authoritative opinion of <i>Teshuvot ha-Rashba</i>, as indeed also seems to be the case with regard to the earlier cited authorities who independently reached a conclusion identical to that of Rashba.
  It must be emphasized that the fact that an animal whose abomasum has been punctured can, and regularly does, survive more than twelve months is entirely irrelevant. It is indeed true that the Sages did declare that, as a general rule, a <i>treifah</i> cannot survive more than twelve months. It is also perfectly clear that our own observations, as well as the observations of rabbinic scholars who lived centuries ago, indicate that this principle, even as a general rule admitting of exceptions, is at variance with empirical reality.30<i class="footnote">Cf., however, <i>Teshuvot Ne‘ot Desheh</i>, no. 127, and <i>Da‘at Torah, Yoreh De‘ah</i>, introduction to <i>Hilkhot Treifot</i>, sec. 19.</i> Nevertheless, as definitively stated by authorities as early as Rambam, <i>Hilkhot Sheḥitah</i> 10:13, and <i>Teshuvot Rivash</i>, no. 447, and as recent as <i>Hazon Ish, Yoreh De'ah</i>, <i>Hilkhot Treifot</i> 5:3,31<i class="footnote"><i>Ḥazon Ish</i>’s position is that halakhic provisions of this nature reflect emperical positions prevalent in the historical epoch in which the Torah was given. Since, according to <i>Ḥazon Ish</i>, certain <i>treifot</i> may be presumed to survive as a matter of course, the question of reliance upon survival for twelve months in cases of doubtful trauma as evidence that a <i>treifah</i>-rendering wound did not in fact occur would seem to require re-examination. Cf., <i>Pri Megadim, Mishbeẓot Zahav</i> 33:4 and <i>Naḥal Eshkol</i>, cited <i>supra</i>, note 21. This point has apparently not been raised by contemporary rabbinic scholars.</i> the changed circumstances we observe have no bearing upon determinations of Halakhah. A full discussion of why this is so is beyond the scope of the present endeavor.32<i class="footnote">See J. David Bleich, “On the Immutability of Torah,” <i>Viewpoints on Science and Judaism</i>, ed. Tina Levitan (New York, 1978), pp. 19-22.</i>
  Survival for a period of twelve months is a significant phenomenon only in the case of a <i>safek treifah</i>, e.g., when there is reason to suspect that one of the organs whose perforation renders an animal a <i>treifah</i> had been punctured but there is no certain knowledge of that fact. Under those circumstances, survival for a period of twelve months is acceptable as establishing that perforation of the organ did not, in fact, occur. Although other authorities disagree, <i>Shakh, Yoreh De'ah</i> 57:48, citing <i>Yam shel Shlomoh, Hullin</i> 3:80, extends this principle to situations in which it is certain that a perforation has been made but there exists an unresolved halakhic controversy with regard to whether a perforation of the nature in question renders the animal a <i>treifah</i>. This view serves as the basis of the ruling of <i>Binat Adam, Sha'ar Issur ve-Heter</i>, no. 26, cited by <i>Pitḥei Teshuvah, Yoreh De'ah</i> 48:2, to the effect that an animal that survives twelve months subsequent to puncture of its rumen is kosher.33<i class="footnote">Cf. also, <i>Arukh ha-Shulḥan, Yoreh De‘ah</i> 48:7-14.</i> The Gemara, <i>Hullin</i> 52b, records a controversy with regard to the particular area of the rumen that must be punctured if the animal is to be considered a <i>treifah</i>. As Rashi indicates in his comments, since there is no definitive resolution of that controversy, we treat perforation of any part of the rumen as a <i>treifah</i>. <i>Binat Adam</i> asserts that, since the matter is unresolved, perforation of any part of the rumen creates only a state of doubt that is resolved by survival for a twelve month period.34<i class="footnote">The contention that an animal that survives for a period of even several days subsequent to puncture of the rumen is kosher is entirely groundless. The argument is that the hole in the rumen must have been sealed by permitted fat; otherwise the contents of the rumen would have leaked into the abdominal cavity with the result that the animal would contract peritonitis and die. See <i>Der Algemeiner Journal</i>, August 26, p. 9, col. 1. Recognition of the principle that the sealing of a perforation after it has occurred does not reverse the animal’s status as a <i>treifah</i> renders this argument a <i>non sequitur</i>. The animal does not contract peritonitis for the simple reason that the puncture of the rumen and its surrounding fat seals rapidly. But once the puncture has penetrated both the wall of the rumen and the fat surrounding it the animal is a <i>treifah</i>, provided that the puncture occurs at a site on the rumen that renders the animal a <i>treifah</i>. See <i>supra</i>, note 21.Moreover, <i>Binat Adam</i>’s reliance upon survival for a twelve-month period in order to confirm the status of the animal as permissible is challenged by <i>Naḥal Eshkol</i>, cited <i>supra</i>, note 21, on the grounds that an animal suffering a puncture that is subsequently sealed by a “membrane” may survive for an indefinite period and yet remain a <i>treifah</i>.</i>
  This issue is totally irrelevant in situations involving puncture of the abomasum. Puncture of any part of the abomasum unquestionably renders the animal a <i>treifah</i> according to all authorities and, as Rema, <i>Yoreh De'ah</i> 48:18, definitively rules, an animal that has certainly sustained a wound rendering it a <i>treifah</i> is prohibited as a <i>treifah</i> even if the animal survives more than twelve months.
  There does exist one latter-day source that can be cited in support of a permissive view with regard to the entire problem. In sharp contradiction to what has been stated earlier, R. Aaron ha-Levi (Re'ah), in his commentary <i>Bedek ha-Bayit</i> on Rashba's <i>Torat ha-Bayit, Hilkhot Bedikah</i>, p. 34b, declares that, although the perforation of specified organs renders an animal a <i>treifah</i>, nevertheless, with the exception of the lungs and the esophagus, a puncture that is later sealed by a "membrane" (<i>krum she-alah maḥamat makah</i>) does not render the animal a <i>treifah</i>.35<i class="footnote">In explaining this provision, <i>Shakh, Yoreh De‘ah</i> 36:6, unequivocally emphasizes that even a strong and durable seal (<i>setimah me‘alyuta</i>) is ineffective in negating the animal’s status as a <i>treifah</i>. Rashi, <i>Yevamot</i> 76a, s.v. <i>le-mi‘utei</i>, and numerous other authorities state that a “membrane” that seals a puncture will eventually tear. That principle is regarded as an irrebuttable halakhic presumption. See <i>Pri Megadim, Mishbeẓot Zahav</i> 33:4, cited <i>supra</i>, note 21. <i>Torat Yekuti’el, Yoreh De‘ah</i> 44:6, is the only authority who asserts that a <i>setimah me‘alyuta</i> serves to reverse an animal’s status as a <i>treifah</i>. According to <i>Torat Yekuti’el</i>, only an animal that actually does develop a <i>setimah me‘alyuta</i> is permissible. Although he devotes great effort in striving to reinterpret numerous statements of early-day authorities in a manner that does not contradict his thesis, <i>Torat Yekuti’el</i> freely concedes that <i>Shakh, Yoreh De‘ah</i> 44:15, disagrees with his position and with his analysis of the position of those early-day authorities.</i> That position is rebutted by Rashba in his <i>Mishmeret ha-Bayit, ad locum</i>, and is apparently rejected by virtually all later authorities with the notable exception of Ra'avan as cited by <i>Torat Hayyim</i> in the latter's commentary on <i>Hullin</i> 43a.36<i class="footnote">The inference is drawn from the comments of Ra’avan, <i>Sefer Ra’avan, Ḥullin</i>, sec. 126. Cf., however, <i>Even Shlomoh</i>, a commentary on <i>Sefer Ra’avan, ad locum</i>.</i> Although the position of Re'ah is rejected by subsequent authorities, one latter-day authority, R. Menachem Mendel Kargau,37<i class="footnote">R. Menachem Mendel Kargau (1772-1842), one of the foremost halakhic authorities of his day, was a <i>dayyan</i> and <i>rosh yeshivah</i> in Fürth and the author of <i>Giddulei Tohorah</i> on <i>Hilkhot Mikva’ot</i>. He was a student of R. Nathan Adler, R. Pinchas Horowitz and R. Ezekiel Landau. Rabbi Kargau was a contemporary of R. Wolf Hamburger and is frequently cited in the latter’s works.</i> contends that the rejection of Re'ah's opinion by Rashba and by those who accepted Rashba's view is not categorical. R. Mendel Kargau argues that Re'ah's position is rejected because a "membrane" that grows at the site of a perforation is likely not to be strong in nature and hence may tear; consequently, such a "membrane" is not permanent and does not serve as a proper seal. Accordingly, argues Rabbi Kargau, if the "membrane" is indeed strong and permanent, as evidenced by the fact that the animal has survived for a twelve month period, Rashba would concede that development of a "membrane" of such nature indicates that the animal is not a <i>treifah</i>.38<i class="footnote">To this writer, it seems that Rabbi Kargau’s argument is readily refuted by referring to Rashba’s own comments. The Gemara, <i>Yevamot</i> 76a, <i>Ḥullin</i> 43a and 48a, states that the halakhic disability attendant upon perforation of male genitalia is reversed upon development of a membrane sealing the wound. That situation is presented by the Gemara as a singular and unique case of a reversible defect. Accordingly, argues Rashba, growth of a membrane over a perforation must be of no consequence with regard to any <i>treifah</i> and not simply with regard to the esophagus and the lung; otherwise, growth of a membrane sealing a perforation of the esophagus or the lung should have been presented as the exceptions to the general rule that such defects are reversible upon development of the membrane. Applying the same argument, if such defects occurring in other organs are reversed upon growth of a “strong and permanent membrane,” as evidenced by survival for a twelve-month period, it is then indeed the case that the general rule is that such defects are reversible, i.e., when the membrane is “strong and permanent.” If so, it follows that the provision with regard to perforation of male genitalia is not at all a singular exception to the general rule. Since the provision with regard to perforation of male genitalia is presented as a singular case it must be concluded that the animal is a <i>treifah</i> despite the presence of a “strong and permanent” membrane.</i> Moreover, argues Rabbi Kargau, since the basic issue with regard to the seal of a puncture by a membrane is the subject of controversy between early-day authorities, <i>viz</i>., Re'ah and Rashba, the position of <i>Yam shel Shlomoh</i> and others who maintain that in cases of "doubt" arising from halakhic controversy survival for a twelve-month period is sufficient evidence that the animal is not a <i>treifah</i> may be relied upon in order to rule that the animal is kosher.39<i class="footnote">See, however, <i>Pri Megadim</i>, <i>Siftei Da‘at</i> 81:5, who states that, even according to <i>Yam shel Shlomoh</i>, survival for a twelve month period is of no avail in situations in which a majority of decisors rule that the animal is a <i>treifah</i>. See also <i>Pri Megadim</i>, <i>Siftei Da‘at</i> 57:48.</i> Nevertheless, Rabbi Kargau concludes his responsum with a disclaimer stating that he cannot rule leniently "in a matter [with regard to which] I do not have a tradition from my teachers, nor have I found explicit permissibility in [scholarly] works." R. Mendel Kargau's responsum was published in its entirety by R. David Zevi Hoffmann in the latter's <i>Melammed le-Ho'il</i>, II, no. 9. <i>Melammed le-Ho'il</i> appends a short comment in which he concludes that "one who relies upon the decision of R. Mendel Kargau, particularly in time of need, is not to be rebuked."
  It must be emphasized that Rabbi Kargau was willing to entertain the possibility of a permissive ruling only in the wake of the cow's survival for a twelve-month period. However, since survival for that period simply serves to demonstrate that the "membrane" sealing the wound is indeed "strong and permanent," it might perhaps be argued that with regard to a procedure, such as that of a puncture made in the course of correcting LDA, in which it is known that countless numbers of animals have survived with normal bovine longevity, that phenomenon itself demonstrates that the "membrane" grown by the animal to heal such a wound is indeed "strong and permanent." Nevertheless, such an argument takes the position of Rabbi Kargau and <i>Melammed le-Ho'il</i> beyond their own announced conclusion.40<i class="footnote"><i>Teshuvot Ḥatam Sofer, Ḥoshen Mishpat</i>, no. 38, does indeed maintain that, in cases of doubtful <i>treifot</i> in which the doubt arises because of an unresolved halakhic controversy, survival of one animal is dispositive with regard to other similarly afflicted animals as well. An opposing view is held by R. Joseph Teumim, author of <i>Ginat Veradim</i>, in his <i>Gan ha-Melekh</i>, no. 141. Sources and arguments in support of those opposing positions are discussed in <i>Da‘at Torah</i>, introduction to <i>Hilkhot Treifot</i>, secs. 18 and 21. See also, <i>Da‘at Torah</i> 48:3.</i> The weight to be given even to <i>Melammed le-Ho'il</i>'s explicitly declared opinion, particularly in light of the fact that it is not widely cited, is a matter for determination by individual rabbinic decisors.41<i class="footnote">Another individual opinion that might be given consideration is that of R. Joseph Saul Nathanson, <i>Sho’el u-Meishiv</i>, <i>Mahadura Kamma</i>, III, no. 81. <i>Sho’el u-Meishiv</i> states that an animal is rendered a <i>treifah</i> as a result of a puncture only “if by happenstance it is punctured by a thorn or needle … which pains it inordinately” but not if the puncture is done carefully for therapeutic purposes since such a procedure “does not cause [the animal] pain.” In the latter case, <i>Sho’el u-Meishiv</i> rules that the animal is permissible if it survives for twelve months. In context, <i>Sho’el u-Meishiv</i> issues this ruling with regard to a puncture of the rumen. He also, in a seemingly incongruous manner, compares this situation to blood letting of an animal in the thoracic area which does not render the animal a <i>treifah</i> bacause it is assumed that a skilled practitioner will not inadvertently perforate the trachea or the esophagus. It seems to this writer that <i>Sho’el u-Meishiv</i> intended his ruling to be applicable only to a puncture of the rumen and left unstated the considerations advanced by R. Mendel Kargau, <i>Binat Adam, Sha‘ar Issur ve-Heter</i>, no. 26, and <i>Arukh ha-Shulḥan</i> 48:8-10, <i>viz</i>., that the rule stating that a perforation occurring at any spot on the rumen renders the animal a <i>treifah</i> is, in actuality, a rule stating that the animal is a <i>safek treifah</i> because, in light of the imprecision of the multiple opinions recorded in the Gemara, <i>Ḥullin</i> 50b, we are unable to determine with exactitude the area of the rumen termed the “inner” rumen. Accordingly, <i>Sho’el u-Meishiv</i> may be understood as asserting that, since skilled practitioners have learned where to perforate the rumen without endangering the animal as evidenced by survival of the animal for a period of twelve months, it may be assumed that the area they puncture is not part of the “inner” rumen. In any event, <i>Sho’el u-Meishiv</i>’s position is not cited authoritatively by subsequent scholars.</i> It is perhaps instructive that the argument formulated by Rabbi Kargau is not advanced in any of the classic responsa discussing relief of bloat by means of decompressing the rumen and Rabbi Kargau's line of reasoning is ignored in the relatively few recent discussions of treatment of LDA.
  IV. Reliance upon Bittul or Nullification
  In summation, it may be said that, according to the vast majority of rabbinic decisors, if more than approximately 1.63% of the dairy cows in a herd or on all the farms from which milk is collected by a dairy for processing have been treated for LDA in a manner rendering them <i>treifot</i>, and assuming that the average milk production of such cows is roughly equal to the average milk production of the rest of the herd, all milk produced by that dairy is forbidden. Similarly, if an animal has been surgically treated for LDA but it is not known whether the treatment employed involved the puncture of the abomasum the animal must be regarded as a <i>safek treifah</i>. Such a situation is entirely analogous to the case of the <i>safek derusah</i>, i.e., an animal that has been clawed in the thoracic area by a venom-bearing beast but it is unknown whether or not its trachea or esophagus has been affected, that is declared by the Gemara, <i>Hullin</i> 43b and 53a, to be a <i>safek treifah</i>. In such situations the animal is no longer regarded as a member of the class of the majority of animals that are kosher.42<i class="footnote">See <i>supra</i>, note 18.</i> Accordingly, if more than 1.63% of the animals are <i>treifot</i> or <i>safek treifot</i> the milk is forbidden. If, however, it is impossible to determine whether the total number of animals treated for LDA exceeds 1.63% but, as is usually the case, the number certainly does not exceed fifty percent of the herd, the milk is permissible.43<i class="footnote">The latter case is comparable to the provisions recorded in <i>Shulḥan Arukh, Yoreh De‘ah</i> 98:2, and reflects the rule that dilution in a slightly larger quantity (<i>rov</i>) of a permitted liquid of an identical species and taste is sufficient to satisfy the biblical requirement for “nullification” of a prohibited liquid. Since a quantity sixty times as great is only a rabbinic requirement, in cases of doubt with regard to whether that requirement has been satisfied, the mixture is permitted. However, in a case in which the total number of <i>safek treifot</i> is more than 1.63%, the milk must be regarded as non-kosher as is the rule with regard to all matters of doubt concerning matters governed by a biblical prohibition. This is so because the underlying doubt is with regard to applicability of a biblical prohibition, i.e., the prohibition against consuming the meat or milk of a <i>treifah</i>. Since the animal is forbidden because of the possibility of violation of a biblical prohibition, the subsequent mixture is also prohibited despite the fact that the requirement for “nullification” of a forbidden liquid in other permitted liquids in a quantity at least sixty times as great as the prohibited liquid (as opposed to nullification in a quantity of permitted liquid slightly greater than the prohibited liquid) is rabbinic in nature. See <i>Darkei Mosheh, Yoreh De‘ah</i> 97, and <i>Shakh, Yoreh De‘ah</i> 110:19.</i> However, as explained by <i>Taz, Yoreh De'ah</i> 98:6, this rule applies only if it is entirely impossible for any person to make such a determination. Mere inconvenience entailed in making such a determination or inability of an individual or a group of individuals to make such a determination does not render the milk permissible. In practice, the number of animals that have been surgically treated for LDA is readily determinable by visual examination; hence the number of <i>treifot</i> or <i>safek treifot</i> is indeed determinable. This halakhic provision with regard to doubt concerning the percent of animals rendered <i>treifot</i> is, however, applicable with regard to cheese that has been processed some time in the past in situations in which the cows from which the milk was derived can no longer be examined.
  To some, it is embarrassing in the extreme that the problem involving a biblical prohibition was discovered in the production of milk under rabbinic supervision. That supervision is designed to avoid the rabbinic transgression involved in drinking the milk of an animal milked by a non-Jew other than in the presence of a Jew lest the milk be adulterated with milk derived from a non-kosher species. <i>Kashrut</i> supervisors and supervising agencies acted in good faith since, being unaware of the prevalence of procedures that render cows <i>treifot</i>, their supervision was limited to the actual milking process. In the absence of a known defect rendering the animal a <i>treifah</i>, they were under no obligation to examine each cow for possible <i>treifot</i> but were fully justified in relying upon the principle of <i>kol de-parish</i>. Now that it is recognized that there is a strong likelihood of known, easily identified <i>treifot</i> within any given herd, one may presume that henceforth such supervision will include proper vigilance with regard to the status of the cows as well and that any cow found to be a <i>treifah</i> or <i>safek treifah</i> will be culled from the herd.
  The incident has, however, highlighted a problem with regard to unsupervised milk. Many have relied upon the opinion of those rabbinic scholars who have ruled that, for purposes of the rabbinic prohibition attendant upon milk milked by a non-Jew, fear of penalties imposed by governmental authorities for adulteration of milk substitutes for the presence of a Jew at the milking of the cow. If, as appears to be the case, the records maintained by most dairymen will readily yield the information that more than 1.63% of dairy cows on farms from which such milk is collected have been treated for LDA, such milk may well be prohibited for an entirely different reason. A similar problem exists with regard to butter that is generally produced without rabbinic supervision.
  The issue that remains to be addressed is whether it is permissible to purchase milk from a farm or dairy when it is known that the milk derived from <i>treifah</i> cows is less than 1.63% of the total milk processed at any given time. As recorded in Shulḥan Arukh, Yoreh De'ah 99:5, milk that is intentionally nullified by a Jewish farmer in such a manner is prohibited to the farmer and to any person on whose behalf he intentionally nullified the non-kosher milk but is permitted to all others.
  With regard to a product sold on the open market the issue is somewhat different. In such situations, the question is whether or not it is permissible to consume a product that has been nullified for the benefit of the general public rather than on behalf of a particular consumer. <i>Teshuvot Rivash</i>, no. 498, rules that nullification on behalf of the general public is tantamount to nullification for the benefit of the particular consumer and hence the food product is prohibited to all. Rivash's ruling is cited by R. Akiva Eger in his gloss to <i>Yoreh De'ah</i> 99:5 and in <i>Teshuvot R. Akiva Eger</i>, no. 207, and is the position of <i>Pri Hadash, Yoreh De'ah</i> 99:13, as well. This position is in conflict with the view of Maharshal, <i>Yam shel Shlomoh, Hullin</i> 7:59 and <i>Taz</i> as reflected in the comments of <i>Taz, Yoreh De'ah</i> 99:10. R. Yechiel Ya'akov Weinberg, <i>Seridei Esh</i>, II, no. 69, cites these conflicting views with the comment, "Who can be lenient contrary to Rivash and R. Akiva Eger in a matter with regard to which they were stringent?"44<i class="footnote">Cf., however, <i>Arukh ha-Shulḥan, Yoreh De‘ah</i> 39:12 and 99:26.</i>
  These provisions are limited to situations in which the seller is a Jew. The halakhic issues in situations in which the producer or seller is a non-Jew are more complex. <i>Teshuvot Radvaz</i>, III, no. 547, rules that the principle of nullification does not at all apply to food purchased from a non-Jew and apparently bases his position upon two separate considerations: 1) Non-kosher food that has been nullified is permitted only <i>post factum</i> because of the financial loss involved. Prospective purchase from a non-Jew, argues Radvaz, cannot be considered a <i>post factum</i> situation since refraining from making the purchase will not result in a loss. 2) Were the nullified food product acquired from a non-Jew to be accepted as permissible, the purchaser might err on future occasions and direct a non-Jew to adulterate non-kosher foods on his behalf.45<i class="footnote">Rabbi Klein cites <i>Teshuvot Radvaz</i> as asserting that since a non-Jew bears no responsibility for commandments concerning forbidden foods there can be no nullification while such foods are in his possession. Thus, nullification occurs only when the product comes into the possession of a Jew. Since nullification occurs at the time of purchase, and intentional nullification is prohibited, it is therefore argued that it is forbidden even to purchase such foodstuffs from a non-Jew. See <i>Der Algemeiner Journal</i>, p. 20, col. 3, s.v. <i>od yesh</i>. However, even a cursory reading of <i>Teshuvot Radvaz</i> will reveal that there is no hint whatsoever of this imaginative argument in that source.</i> The first consideration is negated by the opinion of <i>Teshuvot ha-Rashba</i> as cited by Radvaz who permits the purchase of food cooked by a non-Jew in non-kosher utensils that have not been used for twenty-four hours previously on the ground that such food is always permitted <i>post factum</i>. This is also the position of <i>Taz, Yoreh De'ah</i> 108:4, and Rema, <i>Yoreh De'ah</i> 122:6. In opposition to the position of <i>Teshuvot Radvaz</i>, Rema, <i>Yoreh De'ah</i> 96:4, rules that foods that may questionably contain non-kosher ingredients, but in small quantities so that it is certain that if such ingredients are present nullification has occurred, may be purchased from a non-Jew. Moreover, Rema, <i>Yoreh De'ah</i> 114:6, rules that foods in which the non-kosher ingredients have been nullified may be purchased by a Jew. However, those rulings may be limited to situations in which the adulteration was carried out by the non-Jew for his own benefit. Thus Rema, in these rulings, regards nullification even in the jurisdiction of a non-Jew as creating a <i>post factum</i> situation. Moreover, <i>Teshuvot Radvaz</i>, II, no. 580, contradicts his own earlier cited position in permitting the purchase of nullified <i>orlah</i> from a non-Jew. However, elsewhere, Rema, <i>Yoreh De'ah</i> 108:1, rules that purchase of a food containing non-kosher ingredients is not regarded as <i>post factum</i> and, accordingly, is not permissible unless similar unadulterated food is unavailable.
  This controversy is reflected in numerous later sources as well. <i>Teshuvot Maharam Lublin</i>, no. 104, explicitly rules that non-kosher food that has been adulterated by a non-Jew may subsequently be purchased by a Jew unless the Jew has explicitly directed the non-Jew to adulterate the non-kosher food. Maharam of Lublin addresses a question involving facts remarkably similar to the problem under discussion. A Jew had contracted with a non-Jewish nobleman to buy butter and cheese produced on the latter's farm. Subsequently, a number of the animals became <i>treifot</i> but the milk of those animals, when combined with the milk of other animals on the farm, was less than 1.63% of the total quantity. Maharam of Lublin ruled that, since adulteration took place under the jurisdiction of the non-Jew, the butter and cheese were permissible. Basing himself upon that responsum of Maharam of Lublin, <i>Teshuvot Hatam Sofer, Yoreh De'ah</i>, no. 62, goes beyond that ruling in addressing the problem of a Jew whose herd of cattle was attacked by wolves with the result that a number of his cows became <i>treifot</i>. <i>Hatam Sofer</i> permitted that person to sell his entire herd to a non-Jew and to repurchase the milk that was nullified by the non-Jew.
  Numerous additional sources supporting both sides of this dispute are cited by <i>Darkei Teshuvah</i> 108:26, <i>Sedei Hemed, Ma'arekhet ha-Kelalim, Ma'arekhet ha-Alef</i>, sec. 360 and <i>Sedei Hemed, Pe'at ha-Sadeh, Kelalim, Ma'arekhet ha-Alef</i>, sec. 10. <i>Erekh ha-Shulḥan</i>, no. 115, sec. 7, citing <i>Teshuvot Tashbaz</i>, III, no. 10, distinguishes between purchase from a private party and purchase from a non-Jewish merchant. <i>Tashbaz</i> permits the purchase of such foodstuffs from a private party but prohibits such purchase from a merchant. <i>Tashbaz</i> asserts that nullification by a merchant who engages in such practices on a regular and ongoing basis cannot be regarded as giving rise to a <i>post factum</i> situation.
  Even if the permissive view of <i>Maharshal</i> and <i>Taz</i> is adopted with regard to non-kosher food nullified by a non-Jew the matter is not entirely resolved since all concede that if a non-Jew is requested to combine kosher and non-kosher food so that the non-kosher food becomes nullified the resultant mixture is forbidden to the Jew.
  There are indeed circumstances in which a local rabbi may make inquiries with regard to the <i>kashrut</i> of a given product and, upon becoming aware that only a small quantity of a non-kosher ingredient is present in the product, the rabbi, in reliance upon the heretofore cited permissive view, might inform all interested parties that the product is acceptable as kosher. Since the gentile proprietor is not at all interested in, or even aware of, <i>kashrut</i> problems that are of concern to potential Jewish customers, the rabbi might even issue a letter or certificate to that effect.
  It would, however, be naive in the extreme to assume that all <i>kashrut</i> certification, particularly of major brands, is of that nature. Large manufacturers typically solicit <i>kashrut</i> endorsement and quite frequently modify their product in order to make it acceptable to the kosher consumer. In soliciting <i>kashrut</i> endorsement, and with it a Jewish clientele, the manufacturer, in effect, declares that he intends to manufacture a product for the Jewish market and to nullify non-kosher ingredients on behalf of Jewish customers. Hence, the issue is reduced to the earlier discussed controversy with regard to whether food products adulterated for the benefit of the general public, rather than for a specific individual, may be freely purchased subsequent to nullification.
  
  Chapter VIII The Whiskey Brouhaha
  
  <i>Apple wine of a gentile taken from the warehouse, the stock of a basket is permitted, but if it is sold on the counter it is prohibited because they mix wine with it</i>.
  AVODAH ZARAH 40b
  A recent tempest in a whiskey tumbler which appropriately enough erupted shortly before Purim 1999 has served to amuse readers of the Anglo-Jewish press.1<i class="footnote">E. J. Kessler, “Here’s Some Sobering (‘Hic’) News for (‘Hic’) Orthodox Scotch-Sippers,” <i>Forward</i>, February 5, 1999, p. 1 and “Scotch Ban Widens to Blends, Canadian Whiskey,” <i>Forward</i>, February 15,1999, p. 1. See also “It’s Time, Laddies, for a Wee L’Chaim,” <i>Forward</i>, March 4, 2000, p. 1.</i> In point of fact, the issue involves an interesting and intricate decades-old controversy with regard to several fine points of Jewish law. The media coverage did, however, highlight an unfortunate sociological phenomenon that has become manifest in recent years. Questions involving cut and dry issues of fact and garden-variety halakhic decision-making have come to be viewed through a distorted lens of religious factionalism. Knowing, as they did, that the issue reflected a halakhic debate that took place some forty years ago, knowledgeable readers of the press reports of novel stringencies and of accompanying sociological analyses were bemused. In this country, the late 1940s were hardly an age of <i>ḥumra</i> (religious stringency). In the intervening years, the ongoing problem regarding these alcoholic beverages as well as the conflicting views with regard to its resolution were well known in all sectors of the observant community. And, as is the case with regard to many areas of halakhic practice, each person conducted him or herself in a manner he or she deemed to be appropriate without thereby contributing to the growth of communal divisiveness.
  It is hardly a secret that there are significant numbers of affluent people within the observant Jewish community. Nor is it a surprise to learn that at least some of those individuals have not only acquired a taste for fine wine and expensive whiskey but that they also insist that the liquor they imbibe be produced in accordance with the same high standards of <i>kashrut</i> to which they adhere in their cuisine. Accordingly, <i>kashrut</i> certifying organizations, true to their calling and attuned to the needs of their constituents, have responded by meticulously investigating methods of whiskey production and by making pertinent information with regard to specific brands of liquor, the vast majority of which are not produced under rabbinic supervision, available to the kosher consumer.
  Publication of that information seems to have struck a raw nerve in some quarters among individuals who perceive selectivity in consumption of scotch and blended whiskeys to be a newly fabricated stringency and but another fusillade in a <i>ḥumra</i> campaign designed to prohibit pleasures that have always been permitted. One sociologist has been quoted as ascribing to proponents of a movement to ban scotch and blended whiskey motives having nothing at all to do with <i>kashrut</i>. He regards rabbinic censure of those liquors as a means of controlling the growth of so-called "<i>kiddush</i> clubs" whose members have the temerity to seek alcoholic refreshment during services. He suggests that, for some rabbis, <i>kiddush</i> clubs may even represent a personal threat because tippling is more popular than the rabbi's sermon.2<i class="footnote"><i>Forward</i>, March 4, 2000, p. 6.</i>
  The critics seem to be oblivious to the fact that comprehensive analyses of the <i>kashrut</i> issues and rulings both pro and con appeared in rabbinic journals some four decades ago. The sociologists seem to think that rabbinic personalities who have voiced opinions regarding this matter are unmindful of the fact that consumers of these alcoholic beverages, including members of <i>kiddush</i> clubs, can readily avail themselves of any one of the many brands pronounced by <i>kashrut</i> organizations to be kosher beyond cavil. In disseminating such information, <i>kashrut</i> organizations have not been advancing the "iron law of <i>ḥumra</i>"3<i class="footnote"><i>Loc. cit</i>.</i> by promoting ever more minute strictures of Jewish law. Quite to the contrary, they have made it possible for the many among their constituents who for decades have abstained from all scotch and blended whiskeys to partake of those brands that do not offend their standards.
  I. Nullification of Forbidden Wine
  As is well-known, wine that has been handled by a non-Jew is forbidden to a Jew. The admixture of wine or wine products in other alcoholic beverages is a centuries-old practice. The problem this poses regarding the <i>kashrut</i> of alcoholic beverages is reflected in the admonition recorded in Shulḥan Arukh, Yoreh De'ah 114:6: "One must be careful to examine and investigate whether gentiles who make alcoholic beverages from honey put residue of wine in [those beverages]." Earlier, in the same chapter, <i>Yoreh De'ah</i> 114:4, <i>Shulḥan Arukh</i> forbids the purchase of various alcoholic beverages from non-Jews when the cost of wine is less than those beverages "because we are concerned lest they mix wine [with the beverages]."
  A modern-day manifestation of that problem was first publicized in print by the late Rabbi Pinchas Teitz. In a contribution to the Heshvan 5709 issue of <i>Ha-Pardes</i> Rabbi Teitz reported that upon investigation he had found that many blended whiskeys contain up to two and a half percent of sherry wine but, as permitted by law, the distillers fail to disclose that fact on the label. He also found that, in some instances, glycerine was used as a softening and smoothing agent. In a later article, <i>Ha-Pardes</i>, Nisan 5710, Rabbi Teitz credits the late Rabbi Eliezer Silver with having been the first to publicize the existence of the <i>kashrut</i> problem associated with blended whiskey. A quite similar problem exists with regard to scotch and Irish whiskey aged in wood casks. That problem was first reported by Rabbi Yitzchak Ya'akov Weisz in an article published in the British rabbinic journal, <i>Yagdil Torah</i>, no. 27 (<i>Shavu'ot</i>, 5716) and subsequently included in his collected responsa, <i>Teshuvot Minḥat Yizḥak</i>, II, no. 28. Some brands, particularly some of the more expensive ones, are aged in barrels previously used in the processing of sherry wine or, at times, of port. The Macallan, for example, boasts that the scotch they produce is aged in sherry casks exclusively, while Glenmorangie ten-year-old (but not eighteen-year-old) scotch is aged entirely in bourbon casks. Some distillers utilize only otherwise unused wooden casks, others use a medley of different casks. The problem is more serious with regard to single malt scotch than with regard to blended scotch whiskey because when whiskeys from different sources are combined there is greater likelihood that only a small portion of the blend is derived from whiskey that was aged in wine casks with the result that the "taste" (<i>ta'am</i>) of the wine that is present is nullified by virtue of adulteration.4<i class="footnote">Officials of <i>kashrut</i> supervising agencies report that some distillers claim that, instead of using casks originally used for production of sherry, they allow a small quantity of sherry to be absorbed by the wood of previously unused casks. In such circumstances nullification occurs if the volume of the liquor aged in the barrel is sixty times greater than the volume of sherry introduced into the wood. See <i>Shulḥan Arukh, Yoreh De‘ah</i> 98:3. In situations in which the entire cask is filled with wine, the wood is deemed to have become entirely saturated with wine with the result that nullification can occur only in sixty times the volume of the wood. A utensil can hold sixty times the volume of its walls only if the utensil is made of an extremely thin material.</i>
  An excellent review of the details of the production of alcoholic beverages as well as references to the possible halakhic ramifications were presented by Rabbi Tzvi Rosen in "Kashrus on the Rocks," <i>Kashrus Kurrents</i> (Summer, 1998), vol. 18, no. 2, pp. 8-18. An earlier pamphlet titled <i>L'Chaim! OU Beverage Guide</i> (New York, 1996), compiled by Rabbi Yosef Eisen and published by the Kashrut Division of the Orthodox Union, contains a survey of the halakhic issues5<i class="footnote">Rabbi Rosen observes that the problem may not be as severe in instances in which sherry casks are used a second or third time in the aging of whiskey because the taste imparted to the whiskey becomes progressively weaker. However, that phenomenon is ignored by Halakhah as presently applied. The employment of a <i>kefeila</i>, or professional taster, who might be relied upon to pronounce a mixture to be free of the taste of a forbidden foodstuff even when the permissible ingredients are not sixty times as great as the forbidden ingredient, is not relied upon in our era. See Rema, <i>Yoreh De‘ah</i> 98:1. Many latter-day authorities maintain that a Jew can also not be relied upon for that purpose because our sense of taste is not sufficiently keen. See <i>Darkei Teshuvah, Yoreh De‘ah</i> 98:17. See also, <i>infra</i> notes 15–16 and accompanying text. As a result, a non-kosher utensil in which kosher food is cooked renders such food non-kosher regardless of how many times the utensil has been used for kosher food.</i> and a detailed list of recommended and not recommended beverages. An "Alcoholic Beverage Guide" was also published in the above-cited <i>Kashrus Kurrents</i> and reprinted in the December, 1998 issue of <i>Kashrut Magazine</i>.
  The presence of a small quantity of wine does not necessarily render whiskey non-kosher. The generally applicable rule is that the non-kosher status of a foodstuff is nullified upon adulteration with sixty parts of a kosher substance. However, the rule with regard to wine is somewhat different. As recorded in Shulḥan Arukh, Yoreh De'ah 134:5, wine diluted with six parts of water is deemed to have lost its characteristic identity and hence is permissible.6<i class="footnote">Cf., Rema, <i>Yoreh De‘ah</i> 123:8, who cites a contradictory opinion that treats wine in a manner identical with all other foodstuffs, <i>Shakh, Yoreh De‘ah</i> 123:16, followed by later authorities, rules in accordance with the permissive view. See also R. Moshe Feinstein, <i>Iggerot Mosheh, Yoreh De‘ah</i>, I, no. 62.</i> The rule regarding nullification of wine that has become adulterated with liquids other than water is a matter of dispute. Rema, <i>Shulḥan Arukh</i>, <i>Yoreh De'ah</i> 114:4, followed by R. Shabbetai ha-Kohen, <i>Nekudat ha-Kesef</i>,7<i class="footnote">Cf., <i>Iggerot Mosheh, loc. cit</i>., who suggests that <i>Nekudat ha-Kesef</i> disagrees with Rema only with regard to wine mixed with non-alcoholic beverages but does not challenge the notion that the taste of wine is nullified in six parts of other alcoholic beverages. <i>Iggerot Mosheh</i> further cites <i>Magen Avraham, Oraḥ Ḥayyim</i> 202:3, who quotes a gloss written by R. Shabbetai ha-Kohen, the author of <i>Nekudat ha-Kesef</i>, indicating that wine mixed with “date beer” is nullified only in sixty parts. Magen Avraham understands R. Shabbetai ha-Kohen to be stating that the flavor of wine is not nullified in date beer because its taste is readily perceived in date beer even when present in date beer in a lesser concentration but that the flavor of wine is severely compromised in even smaller amounts of other beverages. <i>Iggerot Mosheh</i> equates non-alcoholic beverages with date beer and thereby resolves the ostensive contradiction between the view of R. Shabbetai ha-Kohen expressed in his gloss and the position of R. Shabbetai ha-Kohen as recorded in <i>Nekudat ha-Kesef</i>.</i> and R. Yonatan Eybeschutz, <i>Matteh Yonatan</i>,8<i class="footnote"><i>Matteh Yonatan</i> declares that when wine enhances the flavor of a beverage it can be nullified only in sixty parts of the beverage to which it is added but that when it is mixed with water or other beverages that are not enhanced by wine but, on the contrary, the quality of the beverage is diminished by the taste of wine, nullification of the wine occurs even when the wine is mixed with only six parts of the beverage. Accordingly, in blended whiskey, to which wine is added for purposes of enhancing the flavor of the whiskey, wine would be nullified only in sixty parts. <i>Iggerot Mosheh</i>, however, takes sharp issue with the notion that wine does not enhance the flavor of water and points to the empirical fact that “many people put a small quantity of wine in the water they drink to make it taste better.” According to <i>Iggerot Mosheh</i>, wine is nullified in six parts, rather than in sixty, not because it causes a <i>ta‘am pagum</i>, i.e., not because it compromises the taste of the beverage to which it has been added, but because the wine itself becomes <i>pagum</i>, i.e., the wine loses its flavor and character more readily than other foodstuffs. <i>Iggerot Mosheh</i>’s position reflects the view of <i>Pri Megadim</i> as found in the latter’s introduction to <i>Hilkhot Ta‘aruvot</i>, part III, chap. 4, s.v. <i>shuv</i>. Rabbi Feinstein marshals further evidence in support of that position in <i>Iggerot Mosheh, Yoreh De‘ah</i>, III, no. 19.</i> <i>ad locum</i>, maintains that the rule is limited to adulteration of wine with water and is based upon the premise that water in that proportion completely adulterates the taste of wine, leaving any residual taste unpleasing to the palette.9<i class="footnote">As understood by <i>Matteh Yonatan</i> this is because the resultant mixture is debased rather than improved and is predicated on the principle that, although the “taste” or flavor of a prohibited substance is forbidden, that is so only when the flavor serves to enhance the food in which it is present. According to <i>Iggerot Mosheh</i>, the underlying principle regarding nullification of wine in six parts is that the wine itself, when adulterated, becomes debased to the point that it no longer has the status of a prohibited foodstuff. Since the wine is no longer prohibited, the flavor imparted by the wine no longer represents the “taste” of a prohibited foodstuff. See <i>supra</i>, note 8.</i> However, other liquids, maintains Rema, do not have that effect with the consequence that non-kosher wine becomes nullified only in sixty parts of other beverages. <i>Taz, Yoreh De'ah</i> 114: 4, challenges Rema's view and asserts that all beverages have an equally deleterious effect upon wine and hence wine becomes nullified by reason of adulteration when mixed with six parts of any beverage. <i>Taz</i>' view is accepted by <i>Magen Avraham, Oraḥ Hayyim</i> 204:16; <i>Pri Hadash, Yoreh De'ah</i> 114:10; <i>Maḥazit ha-Shekel, Oraḥ Hayyim</i> 204:16; and by a host of later authorities.10<i class="footnote">See also <i>Darkei Teshuvah, Yoreh De‘ah</i> 114:13 and R. Yitzchak Ya’akov Weisz, <i>Teshuvot Minḥat Yiẓḥak</i>, II, no. 28, sec. 3.</i>
  II. Wine Used to Impart Flavor
  Nevertheless, reliance upon the position of <i>Taz</i> does not necessarily resolve the problem. The principle of nullification is based upon the premise that the taste of the non-kosher substance is no longer discernible when submerged in a massive quantity of foodstuff having a different taste. That is clearly not the case with regard to pungent substances such as spices and the like. Accordingly, Rema, <i>Yoreh De'ah</i> 98:8, records the cogent principle that items designed to contribute flavor (<i>le-ta'ama avida</i>) are not nullified "even in a thousand" parts. Rambam, in his <i>Commentary on the Mishnah, Orlah</i> 2:10, specifically enumerates wine, when used for flavoring, as a member of the class of foodstuffs that are not subject to nullification. The obvious implication is that, since wine is added to blended whiskey to enhance the taste rather than as an economy measure, the principle of nullification is not applicable. The same is true with regard to whiskey aged in wine casks since the purpose of using such casks is to enhance the taste of the whiskey. In the responsum referred to previously, secs. 5-9, Rabbi Yitzchak Ya'akov Weisz endorses Rabbi Teitz' view that even <i>Taz</i> concurs that, when added for flavor, wine is not nullified in six parts of another liquid.
  Rabbi Teitz further notes that <i>Teshuvot ha-Rashba</i>, III, no. 214, maintains as a blanket rule that any item customarily mixed with other foodstuffs is not subject to nullification by virtue of adulteration. That ruling is codified by Shulḥan Arukh, Yoreh De'ah 134:14. However, as recorded by Ran, <i>Avodah Zarah</i> 29b, both Ri mi-Gash and Rambam reject Rashba's position. It may be noted that <i>Noda bi-Yehudah, Mahadura Tinyana, Yoreh De'ah</i>, no. 56, followed by <i>Gilyon Maharsha, Yoreh De'ah</i> 134:13, accepts the permissive view.11<i class="footnote">Cf., <i>Teshuvot Minḥat Yiẓḥak</i>, II, no. 28, secs. 9–13.</i> Nevertheless, Rabbi Teitz endeavors to show that even those authorities would concede that Rashba's position is correct with regard to nullification of forbidden wine.12<i class="footnote">R. Chaim Mednick, <i>Ha-Pardes</i>, Tishri 5710, presents a highly novel thesis to the effect that, although it is forbidden to drink wine handled by a non-Jew even if the wine was not used for idolatrous purposes, nevertheless it is only the act of drinking such wine that is forbidden but the wine itself is not rendered non-kosher. The effect of that distinction is a conclusion that the wine does not render other beverages impermissible and hence, when mixed with other beverages, the wine is permissible. In a response published in the Kislev 5710 issue of <i>Ha-Pardes</i>, Rabbi Teitz handily demonstrates that such a conclusion is contradicted by the many sources, including rulings of Rema himself, that prohibit mixtures containing non-kosher wine.</i>
  Responding to Rabbi Teitz' objections in a contribution to the Shevat 5710 issue of <i>Ha-Pardes</i>, Rabbi Chaim Mednick of Chicago concedes that, according to the authorities who maintain that wine is treated as all other forbidden foods insofar as nullification in liquids other than water is concerned, blended whiskey cannot be regarded as acceptable. However, argues Rabbi Mednick, the authorities who rule that wine is nullified in six parts of other liquids maintain that position, not because the taste of the wine cannot be detected in such mixtures, or because wine in that proportion mars the taste of the beverage, but because, in their view, only beverages that are identifiable as wine are usable for idolatrous libations and, accordingly, mixtures that do not have that characteristic are not included in the ban. Consequently, argues Rabbi Mednick, even if the wine is utilized as a flavoring agent, the mixture is permissible. Rambam's comment asserting that wine used for flavor is never nullified is dismissed by Rabbi Mednick as limited to wine of <i>orlah</i> (the prohibited fruit produced by a tree or vine during the first three years subsequent to planting) on the contention that, since <i>orlah</i> is nullified only in a hundred parts of another substance, <i>orlah</i> remains prohibited even when it no longer has the characteristics of wine. Hence, argues Rabbi Mednick, it is reasonable to conclude that if wine of <i>orlah</i> is used to flavor another substance it is never nullified.
  Rabbi Mednick bases this view upon the fact that, although wine touched by pagans was originally forbidden because of a fear that a libation may have been poured from the wine thereby rendering the wine impermissible by virtue of having been utilized as an idolatrous sacrifice, the Sages later prohibited the wine of all gentiles, even those who are not idolaters, because of a fear that fraternization and social intimacy associated with convivial consumption of wine would lead to intermarriage. Although <i>Tosafot, Avodah Zarah</i> 29b, regard the latter edict as a mere expansion of the older prohibition, Rabbi Mednick avers that Rashi, <i>Avodah Zarah</i> 36b, regards it as an entirely independent edict. Accordingly, Rabbi Mednick develops the notion that, for Rashi, albeit not for <i>Tosafot</i>, the Sages forbade only the consumption of a beverage identifiable as wine with the result that other beverages containing an admixture of wine are permissible even if the taste of wine is recognizable.
  Rabbi Teitz' rejoinder to that argument was published in the immediately following issue of <i>Ha-Pardes</i>, Adar 5710. Rabbi Teitz astutely notes that, in two separate comments, <i>Yoreh De'ah</i> 114:4 and <i>Yoreh De'ah</i> 114:16, <i>Taz</i> challenges Rema's statement requiring sixty parts of liquids other than water to nullify wine and asserts that six parts of any liquid is sufficient, but maintains silence with regard to Rema's ruling, <i>Yoreh De'ah</i> 114:6, to the effect that wine designed to enhance flavor is never nullified.
  Rabbi Teitz further cites the ruling codified by Shulḥan Arukh, Yoreh De'ah 123:15, to the effect that bread in which the residue of prohibited wine has been used as a leavening agent is forbidden. That ruling, which is accepted by all authorities, reflects a notion similar to the rationale underlying the ruling that ingredients designed for flavoring are not subject to nullification. Such ingredients are not nullified because their flavor is not overpowered even by copious quantities of other foodstuffs and hence the flavor of the forbidden ingredient is always perceived; similarly, a leavening agent, no matter how minute, is always deemed to be present in the bread. The prohibition regarding bread baked in this manner, despite the fact that the wine derivative represents only a tiny fraction of the total volume of the bread, is evidence refuting Rabbi Mednick's contention that the authorities who assert that forbidden wine is always nullified in six parts maintain that position even when the wine is used as a flavoring agent.
  Continuing the debate,13<i class="footnote">It is of more than passing interest that Rabbi Teitz’ article gave rise to a lively debate and to an entire series of articles in which arguments elicited rebuttal and counterrebuttal. As was often the case in rabbinic journals of that era, opinions were offered in a scholarly exchange of correspondence without denominational or factional animus. Those exchanges reflected the passionate intellectual engagement of the contributors and the concern of rabbinic figures of the day <i>le-assukei shematteta aliba de-hilkhata</i>.</i> Rabbi Mednick responded to that argument in the Sivan 5710 issue of <i>Ha-Pardes</i> by citing a comment of Rabbenu Shimshon in the latter's commentary on <i>Tevul Yom</i> 3:4. According to biblical law, <i>terumah</i> that is mixed with a similar species of ordinary food is nullified in instances in which the <i>terumah</i> represents less than fifty percent of the resultant mixture. Nevertheless, in elucidating the statement of the Mishnah declaring that when sourdough of <i>terumah</i> is used to leaven bread the bread must be treated as <i>terumah</i>, Rabbenu Shimshon comments that, despite the fact that the quantity of <i>terumah</i> relative to the total mixture is minuscule, the rule recorded in the Mishnah does not constitute a rabbinic stringency negating the principle of nullification but is biblical in nature. Rabbi Mednick attempts to explain the nonapplicability of the principle of nullification by asserting that the rule with regard to sourdough reflects a unique concept. Bread made from dough that does not rise is not bread in the conventional sense of the term. Hence, when a person is confronted by bread he clearly perceives that a leavening agent must be present. A prohibited substance that is recognizable is never subject to nullification. Consequently, the sourdough, regardless of its quantity or the proportion in which it is present, is deemed to have infused the entire dough. Since the sourdough is regarded as extant and identifiable in every particle of dough, the entire bread is treated as <i>terumah</i>. Similarly, argues Rabbi Mednick, when used as a leavening agent, wine detritus renders the bread impermissible because the wine residue is deemed to be recognizable and hence not subject to nullification by virtue of adulteration.
  Rabbi Mednick's point is contradicted by at least one authority. <i>Hokhmat Adam</i> 80:2 follows <i>Taz</i> in ruling that wine is nullified when mixed with six parts of any liquid. Nevertheless, <i>Hokhmat Adam</i> 75:6 records that, when used for flavoring, wine can never be nullified. <i>Hokhmat Adam</i> certainly did not accept the notion that, according to the authorities who maintain that wine is nullified by six parts of any liquid, it is nullified even when utilized for its flavor.
  Rabbi Teitz apparently communicated his views to R. Moshe Feinstein some time before their publication in <i>Ha-Pardes</i>. In a response to Rabbi Teitz dated <i>erev Rosh Hodesh</i> Adar II, 5708 and later published in <i>Iggerot Mosheh, Yoreh De'ah</i>, I, no. 62, Rabbi Feinstein reports that, in general, he abstains from drinking blended whiskey and commends Rabbi Teitz for having arranged for <i>kashrut</i> supervision on behalf of one distillery thereby assuring that alcoholic beverages produced by that firm have no admixture either of wine or of glycerine. Nevertheless, Rabbi Feinstein declares that, as a matter of normative law, blended whiskey is permissible. He relies primarily upon the view that non-kosher wine is nullified by adulteration in six parts of any permissible beverage. Rabbi Feinstein further adds that <i>Shakh, Yoreh De'ah</i> 114:21, rules that since, in contemporary times, the prohibition against wine handled by a non-Jew is rabbinic in nature, if it is known that at least one of the beverage purveyors does not adulterate his wares with wine, the beverages of all purveyors are permitted, provided that there is no information indicating that the seller does introduce wine into his product. Accordingly, argues <i>Iggerot Mosheh</i>, since there are at least some manufacturers of blended whiskey who do not use wine in their formulae, all blended whiskey is permissible unless it is known that a particular brand contains wine. In point of fact, such information in readily available from all major distillers and has been compiled by various <i>kashrut</i> supervisory organizations. As a result, in many cases, whether or not a particular brand of whiskey is free of wine can be determined with little difficulty.
  The argument that, when utilized for the purpose of imparting flavor to another food or beverage, wine does not become nullified is refuted by <i>Iggerot Mosheh, Yoreh De'ah</i>, I, no. 63, on the basis of the discussion of the Gemara, <i>Bava Batra</i> 97a. The Gemara describes a process of soaking pressed grapes in water as a result of which the quantity of grape-flavored liquid recovered at the end of the process is somewhat greater than the quantity of water poured over the grape residue at the outset. That phenomenon is clearly attributable to the fact that residual liquid naturally present in the grapes is leached out of the pulp by the water that is added. Since this occurs by design, the process is obviously undertaken in order to extract the remaining juice from the grape dregs in order to "flavor" the water which is then fermented in order to produce a type of wine. The Gemara explains that, for purposes of tithing and pronouncement of the appropriate blessing, the liquid is not deemed to be wine despite the fact that the taste of grapes is clearly perceived by the palate. The Gemara explains the underlying principle in declaring, "Do you think it is wine? It is mere acid (<i>kiyuha</i>)."14<i class="footnote">As explained by Rosh, <i>Avodah Zarah</i> 2:12, those authorities who, for purposes of nullification, treat wine in a manner identical with other foodstuffs distinguish between wine made from pressed grapes and wine made from the dregs left over after pressing the grapes. According to those authorities, the rule regarding nullification of wine in six parts of water applies only to wine fermented from water infused in grape detritus because, in their opinion, it is only the flavor imparted by grape dregs that is described as “acid” rather than wine.</i> <i>Tosafot, ad locum</i>, describe the grape detritus from which the wine is produced as "mere soil."
  Although, as noted earlier, Rambam's opinion as expressed in his <i>Commentary on the Mishnah</i> is that wine used as flavoring is never subject to nullification, <i>Iggerot Mosheh</i> opines that the word "wine" crept into the published version as a result of scribal error. In support of that conclusion <i>Iggerot Mosheh</i> points to the verbatim quotation of Rambam's comment in his <i>Commentary on the Mishnah</i> as it appears in <i>Pri Hadash</i>'s gloss to <i>Yoreh De'ah</i> 98:8. In his citation <i>Pri Hadash</i> omits reference to wine as a "spice" to which the usual rules of nullification do not apply. Moreover, argues <i>Iggerot Mosheh</i>, even if the published version of Rambam's <i>Commentary on the Mishnah</i> is accepted as accurate, the reference should be understood as limited to wine from which no benefit at all may be derived as distinct from wine which one may not drink but from which other forms of benefit may be derived. Wine subject to that stringent restriction is prohibited even in a mixture in which the taste is "mere acid" since quite obviously some benefit is derived from the wine despite its debased state.
  <i>Iggerot Mosheh</i> offers another, but rather strained, interpretation of the published text of Rambam's comment that renders it inapplicable to the matter at hand. Citing a comment of <i>Taz, Yoreh De'ah</i> 98:1, regarding another foodstuff, <i>Iggerot Mosheh</i> offers the suggestion that Rambam's intent was to categorize wine as a member of the class of "sharp" substances, which are also not subject to nullification, rather than as a "spice." If classified in that manner, argues <i>Iggerot Mosheh</i>, wine is nullified if mixed with a substance that is "sharper" that the wine. Whiskey is certainly such a substance.
  <i>Iggerot Mosheh</i> dismisses the contention that Rema, <i>Yoreh De'ah</i> 114:6, prohibits beer that has been brewed with the residue of pressed grapes because the wine reabsorbed by the grapes is designed to "flavor" the beer. Pointing to the comments of <i>Shakh, Yoreh De'ah</i> 123:28, <i>Iggerot Mosheh</i> asserts that it is the grape dregs themselves, rather than the wine reabsorbed by the dregs, that serve as a leavening and brewing agent. <i>Iggerot Mosheh</i> develops the novel thesis that the dregs of forbidden wine are prohibited, even though the grapes themselves are entirely permissible, on the tentative grounds that the residue is treated as wine because, so long as it remains moist, it might be mixed with the wine itself and consumed as wine. Hence, asserts <i>Iggerot Mosheh</i>, although, as he maintains, adulterated wine can never be deemed a flavoring agent, Rema prohibits beer produced with grape residue because it is the prohibited dregs that are used as a flavoring agent.
  <i>Iggerot Mosheh</i>'s view regarding the nature of the prohibition of grape detritus is at variance with that of R. Shalom Mordecai Schwadron, <i>Teshuvot Maharsham</i>, III, no. 234, s.v. <i>ve-hineh</i>. Maharsham states that the "pits" of pressed grapes as not intrinsically forbidden but are prohibited solely because of the presence of wine reabsorbed in them. In support of that observation he cites the ruling of Shulḥan Arukh, Yoreh De'ah 123:16, to the effect that wine residue that adheres to the wall of the barrel is permissible after twelve months have elapsed from the time the barrel has been emptied. Maharsham understands that ruling to be predicated upon the consideration that the detritus is prohibited only because of the wine it has absorbed and, accordingly, since, as recorded by <i>Shulḥan Arukh</i>, any remaining moisture evaporates within a period of twelve months, there is no reason to prohibit the residue after that period of time has elapsed. It then follows that, according to Maharsham, beer brewed with the residue of pressed grapes is prohibited, even though the residue contains only a small quantity of wine, because wine is not nullified when it is used as a flavoring agent. <i>Iggerot Mosheh</i> would presumably counter that the detritus is permitted after twelve months have elapsed because, as <i>Shulḥan Arukh</i> notes, at that point it is "mere earth." <i>Iggerot Mosheh</i> would presumably explain <i>Shulḥan Arukh</i>'s reference to the evaporation of the absorbed wine as simply an explanation of why the detritus turn into "mere earth."
  <i>Iggerot Mosheh</i> also demonstrates that, as a matter of normative law, the principle of nullification by virtue of adulteration applies even with regard to products that are customarily mixed with other foodstuffs. It is evident from the ruling of Rema, <i>Yoreh De'ah</i> 114:6, and the comments of <i>Taz, Yoreh De'ah</i> 114:6, that this is true with regard to prohibited wine as well.
  III. Taste Attributable to Dual Sources
  Rabbi Weisz reports that one of his colleagues contended that the wine added to blended whiskey cannot be designed to flavor the whiskey for, were the taste of wine actually detectable in the whiskey, observant Jews would long have been aware of the problem15<i class="footnote">Cf., Rema, <i>Yoreh De‘ah</i> 98:1, as well as <i>Darkei Teshuvah, Yoreh De‘ah</i> 98:17. <i>Darkei Teshuvah</i> cites authorities who maintain that, in the present era, our sense of taste is not sufficiently keen to be relied upon.</i> and would have refrained from drinking such whiskey.16<i class="footnote">In informal conversation, some professed connoisseurs have claimed that wine casks do not contribute in any way to the taste of scotch whiskey. They maintain that sherry casks are used simply because in days gone by such casks were conveniently available and/or wine casks are used to generate a mystique in the eyes of the gullible consumer. This writer is in no position to assess the merit of that contention.</i> Rabbi Weisz asserts that the principle of <i>le-ta'ama avida</i>, i.e., that nullification does not occur when the prohibited foodstuff is designed to impart taste, is not limited to situations in which the taste of the prohibited foodstuff is identifiable as that of the prohibited foodstuff. Rather, it also includes situations in which the forbidden foodstuff merely modifies and enhances the flavor of the mixture. Thus, the principle of nullification applies only when the taste of the forbidden foodstuff is entirely submerged with the result that the taste of the dominant ingredient or ingredients is no different from the taste of the same food product absent the admixture of the small quantity of the forbidden substance. The taste of wine <i>per se</i> may not be detectable in scotch whiskey but, contends Rabbi Weisz, the taste of scotch aged in wine casks is different from that of scotch not aged in wine casks. Since the flavor of scotch aged in wine casks is transformed and beneficially enhanced as a result of the process, the taste of the prohibited wine cannot be deemed to have been nullified.
  Nevertheless, in sec. 16 of his responsum, Rabbi Weisz finds grounds to permit such whiskey precisely because the resultant "taste" attributable to the wine is not a wine flavor but an entirely new taste. His argument is technical and complex but warrants thoughtful consideration.
  As demonstrated by <i>Minḥat Yizḥak</i> in secs. 11-12 of his responsum, Ra'avad, cited by Ran, <i>Avodah Zarah</i> 29b, agrees with the earlier cited view of Rashba to the effect that products that are customarily adulterated with forbidden foodstuffs are forbidden even if the forbidden substance is present only in a minute quantity. Ra'avad explains that the prohibition was enacted in order to prevent impermissible forms of nullification.
  Rashba himself is understood by <i>Maḥazit ha-Shekel, Oraḥ Hayyim</i> 447:45, as advancing an entirely different rationale for this prohibition. The principle of nullification by virtue of adulteration does not apply to a <i>davar ha-ma'amid</i>, i.e., a forbidden substance that serves as a "support" for the food product to which it is added. Jelling and solidifying agents are of that category. Emulsifiers and enzymes such as rennet used in production of cheese may be the best commonplace examples of a <i>davar ha-ma'amid</i>. <i>Maḥazit ha-Shekel</i> understands Rashba as advancing the view that if a small quantity of a substance whose taste cannot be perceived in the resultant mixture is customarily added to a food product it must be because, although the ingredient is not itself perceivable, it must serve to modify the taste of the dominant ingredients. Such a substance, asserts <i>Maḥazit ha-Shekel</i>, was regarded by Rashba as a <i>davar ha-ma'amid</i>.
  Adopting that rationale, <i>Minḥat Yizḥak</i> argues that a <i>davar ha-ma'amid</i> that is itself composed of two separate ingredients, one kosher and one forbidden by virtue of rabbinic edict, does not render the product in which it is employed non-kosher, provided that the mixture is of a quantity sufficient to nullify the non-kosher ingredient. In such cases the <i>davar ha-ma'amid</i> is itself a <i>zeh va-zeh gorem</i>, i.e., the effect of the <i>ma'amid</i> stems from dual sources, one permissible and one impermissible. The applicable rule is that a <i>zeh va-zeh gorem</i> in which the forbidden substance is rabbinically prohibited, as distinct from a substance prohibited by biblical law, is entirely permissible.
  Since the wine in question is prohibited only by virtue of rabbinic edict and since the taste of the wine itself is not discernible by the palate, the taste that it does impart, argues <i>Minḥat Yizḥak</i>, must, according to Rashba, be forbidden only as a <i>davar ha-ma'amid</i>. However, the novel taste imparted to the whiskey is not the product of the wine alone; the taste that is generated, argues <i>Minḥat Yizḥak</i>, is the product of multiple ingredients, including the wood of the cask itself (which is often oak), no single one of which is itself discernible. Accordingly, concludes <i>Minḥat Yizḥak</i>, the resultant flavor has the status of a permissible <i>zeh va-zeh gorem</i>.17<i class="footnote"><i>Minḥat Yiẓḥak</i> overlooks the fact that, according to many early authorities, causing a <i>zeh va-zeh gorem</i> also represents a form of nullification and hence it may be impermissible intentionally to initiate a <i>zeh va-zeh gorem</i>. See Ran, <i>Avodah Zarah</i> 49a. See also <i>Teshuvot Torat Ḥesed, Oraḥ Ḥayyim</i>, no. 21 and <i>Encyclopedia Talmudit</i>, XI, 699. If so, according to the earlier-cited opinion of Radvaz, which <i>Minḥat Yiẓḥak</i> regards as a matter of some concern, it would not be permissible to purchase a product from a gentile that is permissible only on the basis of <i>zeh va-zeh gorem</i>.</i>
  <i>Minḥat Yizḥak</i>'s argument is less than compelling for a number of reasons. <i>Maḥazit ha-Shekel</i>'s interpretation of Rashba is certainly debatable. Rashba's phraseology is far from unequivocal and <i>Maḥazit ha-Shekel</i>'s explanation is not at all self-evident. It should also be noted that, as opposed to <i>Maḥazit ha-Shekel, Noda bi-Yehudah</i> regards the views of Ra'avad and Rashba as identical. Moreover, the authorities who disagree with Rashba's position, or with his explanation of that position, may well do so precisely because they adopt the view that the taste of a forbidden substance retains its prohibited status unless it is completely eradicated and entirely undetectable with the result that a modified or even novel taste remains intrinsically forbidden.
  IV. Nullification on Behalf of Jewish Purchasers
  In his initial treatment of this topic published in <i>Ha-Pardes</i>, Heshvan 5709, Rabbi Teitz argued that, even if the wine in blended whiskey is present in quantities sufficiently minute to be nullified by virtue of adulteration, it is nevertheless forbidden for a Jew to purchase the adulterated product. Halakhah forbids the intentional adulteration of a forbidden substance in order to render it permissible (<i>ein mevatlin issur le-khateḥilah</i>).18<i class="footnote"><i>Minḥat Yiẓḥak, ibid</i>., sec. 20, cites <i>Teshuvot Radvaz</i>, III, no. 978, who advanced the view that it is never permissible knowingly to purchase foodstuff in which a forbidden substance has been adulterated. Radvaz reasons that the act of purchasing the foodstuff with the knowledge that it contains a forbidden substance is tantamount to intentional adulteration on the part of the Jewish purchaser. That view is contradicted by <i>Teshuvot Maharam Lublin</i>, I, no. 104 and by <i>Teshuvot Ḥatam Sofer, Yoreh De‘ah</i>, no. 62 as well as by a long list of authorities cited by <i>Darkei Teshuvah</i> 108:20.</i> Moreover, although the mixture is regarded as kosher once it is adulterated, nevertheless, the person who intentionally adulterates a forbidden substance in order to nullify it may not consume the mixture <i>post factum</i>. Similarly, if an individual intentionally adulterates a forbidden substance for the benefit of another person, that person is also forbidden to consume the resultant mixture. R. Akiva Eger, in a gloss to <i>Yoreh De'ah</i> 99:5, cites <i>Teshuvot Rivash</i>, no. 498, who rules that a person who engages in such a practice on a commercial basis does so on behalf of all potential customers. Accordingly, even though the potential customers are both undetermined and anonymous, they are nevertheless the intended beneficiaries and hence are prohibited from eating the resultant mixture.
  To be sure, as evidenced in a different context by the discussion of the Gemara, <i>Eiruvin</i> 40a, if the adulteration were to be undertaken for the benefit of non-Jewish customers, Jews would not be forbidden to benefit from such nullification. Since the vast majority of consumers are non-Jews, it might be contended that the distillers blend the whiskey for the intended benefit of non-Jews and hence the consideration voiced by R. Akiva Eger is not applicable. Rabbi Teitz counters that argument by pointing to the comment of <i>Magen Avraham, Oraḥ Hayyim</i> 515:22, regarding food that has been brought from beyond the permitted walking distance (<i>ḥuz le-teḥum</i>) on <i>Yom Tov</i>. Such foodstuffs are forbidden to the person on whose behalf they have been transported, even if they have been transported by a non-Jew, but are nevertheless permitted to others. Thus, if such foodstuffs are transported for the benefit of non-Jews they may be consumed by Jews. However, if the food is transported primarily for sale to non-Jewish customers but additional quantities of the same foods are simultaneously transported because of a potential Jewish clientele, the transportation is deemed to have been carried out for the benefit of Jews and, accordingly, Jewish consumers are forbidden to benefit therefrom.
  Rabbi Teitz notes that the number of Jewish consumers, although relatively modest in terms of the total market, is nevertheless numerically sufficient to assure that additional quantities of whiskey must be produced in order to satisfy their needs. Moreover, argues Rabbi Teitz, the ubiquity of liquor advertisements inserted in Anglo-Jewish newspapers indicates that distillers are well aware of the existence of a Jewish market and fully intend to blend whiskey on behalf of their Jewish clientele.
  However, the basic view adopted by R. Akiva Eger is disputed by numerous authorities including <i>Taz, Yoreh De'ah</i> 99:10. Following R. Shlomoh Luria, <i>Yam shel Shlomoh, Hullin</i> 7:59, <i>Taz</i> declared that the rule providing that an adulterated product may not be consumed by a person for whose benefit the forbidden foodstuff was adulterated is limited to situations in which the individual had prior knowledge that the adulteration was to be carried out on his behalf. According to <i>Taz</i>, if follows that, when such products are acquired on the open market, they are permitted to a Jewish purchaser. In light of the controversy concerning this point, Rabbi Teitz did not take a definitive stand on the basis of that consideration.
  <i>Minḥat Yizḥak</i>, in his previously cited responsum, sec. 20, cites another consideration in vitiation of the problem posed by intentional nullification for the benefit of Jewish consumers. <i>Teshuvot Maharsham</i>, III, no. 234, s.v. <i>ve-nish'ar</i>, apparently assumes that the prohibition against intentional adulteration of a forbidden foodstuff is designed to prevent transgression that might arise if the forbidden item is insufficiently adulterated. Consequently, Maharsham permits intentional nullification of a small quantity of a forbidden substance in situations in which a higher concentration would spoil the food to which it is added. If so, argues <i>Minḥat Yizḥak</i>, it would be permissible for a Jew to intentionally add a small quantity of wine to whiskey. <i>Minḥat Yizḥak</i> reasons that, although a small quantity of wine enhances the whiskey, a larger quantity would ruin its taste. Thus, there are no grounds to fear that permitting adulteration through the addition of a small quantity of wine would lead distributors to add a quantity sufficiently large to render the whiskey impermissible. Maharsham's position, however, is accepted by other authorities.
  <i>Iggerot Mosheh, Yoreh De'ah</i>, I, no. 63, argues that the ban against benefiting from intended nullification of a forbidden substance is not applicable because of four considerations:
  1. Provisions applicable with regard to items transported on <i>Yom Tov</i> are not germane with regard to nullification by means of adulteration. The ban against benefiting from nullification is designed as a penalty for violation of the prohibition against intentional adulteration. There is, however, no prohibition against adulterating a forbidden foodstuff on behalf of a non-Jew. Hence a Jewish purchaser can legitimately claim that the food product he has bought came from the major portion of the product offered for sale, i.e., from the quantity designed for sale to non-Jews and hence not subject to the ban against adulteration. However, since non-Jews are permitted to transport merchandise on <i>Yom Tov</i> with impunity, the ban against benefiting from foodstuff transported from beyond the permitted distance on <i>Yom Tov</i> cannot be in the nature of a penalty. Rather, it is rooted in a prohibition against deriving benefit from <i>Yom Tov</i> activity. Hence, concludes <i>Iggerot Mosheh</i>, since a single <i>Yom Tov</i> act is involved, the prohibition is triggered if any portion of the produce is transported on behalf of a Jew.
  <i>Iggerot Mosheh</i>'s argument may, however, represent a distinction without a difference. It may be correct to say that in transporting items from beyond the permitted area the non-Jew commits no impropriety, and hence there is no basis to penalize the act, but that a Jew may nevertheless be forbidden to derive benefit from an act performed on <i>Yom Tov</i> on his behalf. However, since the items transported are fungible, it is entirely possible that, when items are transported primarily for non-Jews but an additional quantity is added for the benefit of a Jew, the items ultimately delivered to the Jew are not those added on his behalf and hence, in actuality, the Jew has not benefited from a prohibited act performed on <i>Yom Tov</i> on his behalf. If so, the fact that a Jew dare not benefit from any of the items transported when even some of those items have been added for the benefit of Jews may well reflect the notion that, in such circumstances, the entire activity is regarded as having been undertaken on behalf of a Jew. The same principle would then be applicable to adulteration of an additional quantity of a forbidden foodstuff by a purveyor in order to be able to make additional products available to Jewish customers.
  Moreover, it is quite possible that the ban against deriving benefit from items transported on <i>Yom Tov</i> from outside a permitted area does not reflect a prohibition against deriving benefit from a task performed on <i>Yom Tov</i> but, as with regard to the prohibition against benefiting from nullification of means of adulteration, it is designed to discourage Jews from directly requesting that the act be performed on their behalf.
  2. <i>Taz, Yoreh De'ah</i> 99:10, followed by numerous other authorities, maintains that there is no prohibition against benefiting from adulterated substances in circumstances in which the intended beneficiary is unaware of the fact that the substance is to be adulterated on his behalf. That position is based on the consideration that the prohibition devolving upon the beneficiary of the prohibited act is designed to discourage him from requesting another person to adulterate a forbidden substance on his behalf. According to these authorities, that consideration does not apply to situations in which the process is performed without the knowledge of the benefited person.
  3. <i>Tosafot, Pesaḥim</i> 30a, maintain that it is entirely permissible to nullify substances forbidden by a rabbinic edict that is unrelated to a biblical prohibition. Wine that has not been handled by an idolater is prohibited not because of fear that it has been used for an idolatrous libation—as evidenced by the fact that, although it is not permitted to drink such wine, other forms of benefit may be derived therefrom—but because social intimacy promoted by sharing wine may lead to intermarriage. The prohibition against drinking such wine is entirely rabbinic in origin and hence, according to <i>Tosafot</i>, it is permissible to nullify such wine by adulterating it with other substances.
  4. Although this opinion is not normative, Rambam, <i>Hilkhot Ma'akhalot Assurot</i> 15:26, maintains that it is permitted to nullify all rabbinically prohibited substances.
  Taken collectively, asserts <i>Iggerot Mosheh</i>, these considerations serve as ample basis to vitiate a prohibition against the purchase of blended whiskey containing wine that has been nullified by adulteration.
  V. Reasons for Stringency
  Nevertheless, despite this permissive stance, in <i>Iggerot Mosheh, Yoreh De'ah</i>, I, no. 61, Rabbi Feinstein advances four reasons why a pious person (<i>ba'al nefesh</i>) should abstain from blended whiskey and in <i>Iggerot Mosheh, Yoreh De'ah</i>, I, no. 63, he adds yet a fifth reason:
  1. Although <i>Shulḥan Arukh</i> disagrees, many authorities maintain that not only is it forbidden to drink wine that has been handled by a non-Jew but that no benefit whatsoever may be derived from the wine. When no benefit may be derived from prohibited substances, benefit may not be derived even from their "ashes" or residue.
  2. Although <i>Shulḥan Arukh</i> disagrees, many authorities maintain that wine, even when mixed with water, is nullified only when adulterated in a quantity sixty times as great as the prohibited wine rather than in a quantity six times as great.
  3. It is possible that, contrary to the interpretation discussed earlier, <i>Nekudat ha-Kesef</i> and Rema maintain that, when mixed with beverages other than water, nullification of wine requires a quantity of liquid sixty times as great as the wine rather than a quantity only six times as great.
  4. Although, as previously indicated, the position is problematic, it is the view of <i>Matteh Yonatan</i> (and, as noted earlier, presumably of Maharsham as well) that when wine is mixed with another food or beverage for the purpose of enhancing taste it does not become nullified.
  5. Although, as noted earlier, a number of other authorities disagree, <i>Teshuvot ha-Rashba</i>, III, no. 214 followed by Shulḥan Arukh, Yoreh De'ah 134:13, maintains that food products which non-Jews routinely adulterate with non-kosher substances are always prohibited even if the taste or flavor of the non-kosher substance cannot be detected because it is overpowered by a much greater quantity of the kosher substance.
  VI. A Final Note
  The permissive rulings of both R. Moshe Feinstein and R. Yitzchak Weisz provide ample authority upon which those who wish to enjoy blended whiskey and fine scotch may rely. It should be remembered, however, that Rabbi Feinstein himself advised that a "<i>ba'al nefesh</i>" should abstain from doing so and that such was generally his own practice.
  A review of the arguments pro and con certainly serves to establish that the ultimate decision is based upon considerations regarding which intelligent and erudite scholars may differ. Such disagreements are the product of the exercise of intellectual judgment well within the parameters of legitimate halakhic dialectic. It is precisely for that reason that Rabbi Feinstein advised a <i>ba'al nefesh</i> to be stringent in his personal practice. In doing so Rabbi Feinstein was simply invoking the principle recorded by the Gemara, <i>Hullin</i> 44b, and codified by Rema, <i>Yoreh De'ah</i> 116:7, regarding "<i>basar she-horeh bo ḥakham</i>—meat that requires the decision of a scholar," i.e., food whose status is cogently questioned but is nevertheless ruled to be kosher by a competent decisor. The Gemara reports that the prophet Ezekiel abjured such food as an act of piety. The stringency arises because the decision involves a judgment call (<i>shikul ha-da'at</i>) and is accordingly subject to error. It is that consideration that has led to the designation known as "<i>glatt</i>" kosher. Literally, the reference is to meat from an animal whose lungs are "smooth," i.e., whose lungs have no adhesion requiring a "decision of a scholar" to the effect that the adhesion is of a type that does not render the animal non-kosher. As used in common parlance, the connotation of the term "<i>glatt</i>" has come to be that the permissibility of the food so described is not subject to doubt or disagreement.
  There is an association that styles itself the "Glatt Cigar Society." The members of that group meet periodically to enjoy succulent steak, expensive cigars and fine scotch whiskey. Upon reading a news report indicating that I was not prepared to grant an unqualified endorsement to all scotch whiskey, a gentleman associated with that group was kind enough to forward to me copies of relevant material in the rabbinic literature that he thought might have escaped my attention. Apart from the cognitive dissonance that arises from association of the term "<i>glatt</i>" with institutionalized hedonism, it may be cogently argued that, in light of health hazards posed by smoking, the term "<i>glatt</i> cigar" is an oxymoron. In any event, if scotch aged in sherry casks is indeed served at gatherings of the Glatt Cigar Society, the name by which that group is known is anomalous. The members would be well advised either to switch brands or to change the name of the society.
  
  Chapter IX Kashrut
  
  <i>R. Berakhiah said in the name of R. Isaac: The Holy One, blessed be He, will make a banquet for His servants, the righteous, and whoever has not eaten carrion in this world will witness [the banquet] in the World to Come</i>.
  VA-YIKRA RABBAH 13:3
  Kashrut Certification
  In the Iyar 5754 issue of <i>Ha-Pardes</i> the editor has reprinted a letter authored by R. Moshe Feinstein many years ago. The letter, as published in <i>Ha-Pardes</i>, is dated 9 Elul 5733. The identical letter appears in <i>Iggerot Mosheh, Hoshen Mishpat</i>, II, no. 4, sec. 1, bearing the date Kislev 5739. The communication was addressed to the administrators of a communal <i>kashrut</i> supervision organization. The letter was written at the behest of several rabbis who, for a period of time, had supervised and granted a private <i>hekhsher</i>, or certificate of <i>kashrut</i>, to a slaughterhouse. The rabbis approached Rabbi Feinstein with a complaint in which they asserted that the supervisory agency in question refused to allow establishments under its jurisdiction to make use of meat originating in the slaughterhouse supervised by the complainants. Those rabbis alleged that such refusal was nothing more than a boycott designed to put economic pressure upon the proprietors of the slaughterhouse to transfer <i>kashrut</i> supervision from the rabbis with whom they had a long-standing arrangement to the supervisory agency itself.
  Such a motive is unworthy of any individual and most certainly of a <i>kashrut</i> agency and hence, were that indeed to have been the reason for not accepting the certification of the supervising rabbis, such motivation would, in itself, have constituted sufficient grounds for censure. More than a century ago, R. Moshe Sofer, <i>Teshuvot Hatam Sofer, Hoshen Mishpat</i>, no. 118, expressed astonishment that "scholars, a rabbi and a <i>dayyan</i> would join in committing an injustice and transgression" of such a nature. The incident discussed by <i>Hatam Sofer</i> involved certification of sugar produced by a non-Jew as kosher for use on <i>Pesaḥ</i>. The certification had been granted by two <i>dayyanim</i> who are described as having been impoverished. A certain rabbi allegedly attempted to persuade the non-Jew to dismiss one of the <i>dayyanim</i> and to engage him in place of the <i>dayyan</i>. The non-Jew, however, demurred. Thereupon the rabbi enlisted the assistance of the second <i>dayyan</i> and together they prevailed upon the gentile. <i>Hatam Sofer</i> decries such conduct as unworthy and, despite minor equivocation in his initial comments, declares such conduct to be a violation of the prohibition against <i>hasagat gevul</i>, i.e., unfair competition.
  Rabbi Feinstein, in a brief and peremptory statement, expresses disapproval regarding the matter brought to his attention for a medley of reasons: 1) Infringement upon another person's means of earning a livelihood constitutes a violation of the prohibition against <i>hasagat gevul</i>. 2) <i>Kashrut</i> supervision constitutes the exercise of "authority" (<i>serarah</i>) and hence retaining the services of a <i>kashrut</i> supervisor constitutes an appointment to a position of authority rather than the engagement of an employee. The implication of adducing that consideration is that a person so engaged cannot be removed other than for cause.1<i class="footnote">It may be noted that Rabbi Feinstein himself expressed the opinion that an ordinary employee is not an employee at will but, at least if not expressly stipulated to the contrary, is engaged for as long a period as the employer has need of the type of service performed by the employee and, consequently, no employee can be dismissed other than for cause. See <i>Iggerot Mosheh, Ḥoshen Mishpat</i>, I, no. 75.</i> 3) Refusal to accept the certification of the supervising rabbis is a source of great embarrassment to them and constitutes defamation of character. Rabbi Feinstein advises that, if there are indeed allegations of substantive irregularities, the matter be presented formally to a <i>Bet Din</i> for adjudication.
  The statement, which Rabbi Feinstein signed in his capacity as president of the Union of Orthodox Rabbis of the United States and Canada, may well be construed as a policy statement of that organization. If it was intended as a definitive halakhic ruling, it may well have been compelled by the particular facts of the case addressed but can hardly be regarded as universal in application.
  Any attempt to entice customers or clients already serviced by another person presents a serious question of <i>hasagat gevul</i>. Any attempt to disparage another person's performance in the rendering of services, whether by explicit statement or by innuendo, is indeed a form of defamation. However, refusal to rubber-stamp the <i>kashrut</i> endorsement of another rabbi or supervising agency need not necessarily entail either infraction. Similarly, a producer or retailer may seek new <i>kashrut</i> certification without necessarily being in violation of any provision of Jewish law.
  Certification of the <i>kashrut</i> of any product is, in a technical halakhic sense, testimony with regard to the product as a permitted foodstuff.2<i class="footnote">See R. Moshe Feinstein, <i>Nehora’i</i>, II (Lakewood, 5745), p. 41.</i> Such testimony cannot be compelled. Thus no individual or rabbi can ever be compelled to attest to the <i>kashrut</i> of any product. Certainly, no person or agency is permitted to compromise his or its integrity by actually certifying a product as kosher if that person or agency has any suspicion of irregularity. In judicial proceedings the <i>Bet Din</i> has no choice but to rule upon the testimony presented, provided that the witnesses are halakhically credible and the testimony is unimpeached. A judge who nevertheless harbors a suspicion of perjury cannot simply exclude or disregard the testimony. Nor is he permitted to act upon testimony that he regards with suspicion. Accordingly, Rambam, Hilkhot Sanhedrin 24:3, rules that a judge who finds himself in such a position has no choice but to recuse himself. Since the judge need not announce the reason for his recusal, no stigmatization of the witnesses accrues from his action in doing so. The same is assuredly the case with regard to extra-judicial matters involving a pronouncement of permissibility.
  Neither a rabbi nor a supervisory agency is under an obligation to grant <i>kashrut</i> endorsements to all qualified applicants. Hence the rabbi or supervisory agency is fully entitled to demand stringencies on behalf of those who rely upon that endorsement. Those stringencies may represent matters of piety practiced by a particular clientele rather than matters of normative religious law. Moreover, a person called upon to accept the certification of a product as kosher may have no reason to suspect that the product falls short of even the most rigorous standards but may feel that further safeguards and controls are necessary in order to protect against problems that may arise over the course of time. Hence, refusal to extend full faith and credit to the certificate of another rabbi or agency does not, <i>ipso facto</i>, reflect negatively upon that endorsement.
  There are also, to be sure, situations in which a person may entertain suspicion or doubt without being able to articulate the precise reason for his concern and certainly without being able to demonstrate impropriety to the satisfaction of a <i>Bet Din</i>. In comparable judicial situations, a member of a <i>Bet Din</i> must recuse himself rather than vote for either conviction or acquittal, liability or exoneration; similarly, in matters of <i>kashrut</i>, a person experiencing such ambivalence must decline to compromise himself by endorsing, or appearing to endorse, <i>kashrut</i> certification regarding which he has less than full faith.
  Furthermore, a policy of "vertical" supervision is entirely reasonable. Certification of a processed food product, catering facility or commercial establishment involves not only attestation that nothing is amiss at the point of supervision but that all products and ingredients utilized in the food purveyed as kosher are indeed acceptable. A supervisory authority may cogently establish a policy of granting certification solely on the basis of its own investigation and determination of reliability of all ingredients and products. That, in turn, is tantamount to requiring that only products under its own supervision be used. It may also, with valid reason, restrict its own acceptance of certification of ingredients to products bearing the imprimatur of a communal organization. Presumably, such certification is not clouded by pecuniary motivation since no individual's livelihood or level of compensation is directly affected by the bestowal or withdrawal of any particular <i>kashrut</i> certification.3<i class="footnote">Cf., the comments of Rabbi Feinstein, <i>Nehora’i</i>, II, 40–41, regarding the superiority of this type of supervision as well as the comments of R. Menasheh Klein, <i>Der Algemeiner Journal</i>, September 2, 1994, p. 21, col. 2.</i> Assuredly, apart from its undeniable intrinsic merit, absence of self-interest bolsters public confidence and hence a communal <i>kashrut</i> agency whose goal is the broadest possible acceptance will correctly seek to establish policies designed to achieve such acceptance.
  For similar reasons a producer or purveyor of food products is completely at liberty, upon his own initiative, to seek the endorsement of whatever agency or individual he may desire. An enterprising businessman will seek the widest possible market for his product. A purveyor of kosher food will seek the testimonial of an agency or rabbinic figure likely to garner the largest possible number of customers. Accordingly, substitution of certification is not a reflection upon the probity of the individual or agency whose certification has been supplanted but simply reflects an awareness that the newly acquired imprimatur will lead to wider recognition and acceptance and hence will enhance sales. If, for the reasons indicated, the <i>kashrut</i> agency or supervisor is not in violation of the prohibition against <i>hasagat gevul</i> an entrepreneur availing himself of such supervision cannot be deemed guilty of abetting a transgressor.
  Parenthetically, it should be noted that Rabbi Feinstein's depiction of <i>kashrut</i> supervision as a form of "authority," insofar as our society is concerned, reflects an ideal rather than the reality. In the autonomous Jewish <i>kehillah</i> of yesteryear a communal rabbi did indeed enjoy the prerogative of declaring a foodstuff to be non-kosher and of branding a purveyor as unreliable. His edict then became binding in his jurisdiction. <i>Kashrut</i> supervision in the United States involves no such power. A firm or individual seeking rabbinic endorsement of any given product does not undertake that the product will remain kosher forevermore. Quite to the contrary, the manufacturer or purveyor is at perfect liberty to surrender the <i>kashrut</i> endorsement and, at least to the extent permitted by Jewish law, to market the product to consumers for whom <i>kashrut</i> is not a concern. The supervising rabbi is simply not engaged to compel the manufacturer or proprietor to adhere to required standards of <i>kashrut</i> in the future, much less so to impose sanctions for nonfeasance. His function is entirely affirmative, i.e., to attest to the reliability of the product so long as everything is in order. To be sure, he has the halakhic right, and indeed the obligation, to warn against use of the product if he becomes aware of the fact that an ongoing claim of <i>kashrut</i> is false. He does so, however, by virtue of his obligation as an individual, not by virtue of his office or of any authority that has been conferred upon him. Since the private <i>kashrut</i> supervisor's position is not a position of "authority," he is not endowed with the right to tenure enjoyed by a communal official.
  Is the Giraffe a Kosher Animal?
  The status of the giraffe has been the subject of a number of discussions in rabbinic literature over the course of the past one hundred and fifty years. The earliest analysis of the question was published by H. Hanak in a periodical edited by R. Mendel Stern called <i>Kokhavei Yizḥak</i>, no. 16 (Vienna, 5612), pp. 41-43.4<i class="footnote"><i>Kokhavei Yiẓḥak</i> was published in Vienna between 5605 and 5630.</i> A later discussion by R. Shlomoh Zevi Schuck was published in his <i>Teshuvot Rashban, Even ha-Ezer</i> (Satmar, 5665), no. 64. The issue was raised anew in an inquiry by R. Yeshayah Aryeh Dworkes, <i>Ha-Ma'or</i>, Tishri 5721, and responded to by R. Zevi Hirsch Cohen, <i>She'elot u-Teshuvot ha-Ma'or ve-Zikaron ba-Sefer</i>, I (New York, 5727), pp. 247-250. The matter has now been reexamined by R. Abraham Hamami in a contribution to <i>Teḥumin</i>, vol. 20 (5760).5<i class="footnote">Rabbi Ari Z. Zivotofsky, “What’s the Truth about… Giraffe Meat!” <i>Jewish Action</i> (Fall, 2000), p. 37, dispels a popular misconception regarding slaughter of the giraffe but does not address the complex issue of the permissibility of the consumption of giraffe meat.</i>
  The earliest rabbinic reference to a giraffe occurs in R. Sa'adia Ga'on's commentary on Deuteronomy 14:5. Scripture declares, "These are the animals you may eat" and proceeds to enumerate a list of permitted species. Among those animals is the "<i>zemer</i>" which is rendered in standard English translations as "mountain-sheep." R. Sa'adia Ga'on, perhaps following the Septuagint, identifies the <i>zemer</i> as the animal known in Arabic as <i>al-zerafah</i>, i.e., the giraffe. That translation is accepted by R. David ibn Kimḥi (Redak) in his <i>Sefer ha-Shorashim</i> in the entry for the term "<i>zemer</i>," by R. Estori ha-Farḥi, <i>Kaftor va-Feraḥ</i>, chap. 58, and by R. Shimon ben Ẓemaḥ Duran (Rashbaz), <i>Yavin Shemu'ah, Hilkhot Treifot</i>, p. 5b.6<i class="footnote">See also R. Amiti Ben-David, <i>Siḥat Ḥullin</i> (Jerusalem, 5755), pp. 412f., and cf., R. David Zevi Feldman, <i>Yalkut Kol Ḥai</i> (5757), p. 639, note 10.</i> Rashbaz further identifies al-zerafah as an animal with "a long neck… so that when [the giraffe] is within the wall it extends [its neck] outside of the wall."7<i class="footnote">Cf., however, Rabbi Y. M. Levinger and M. David, “<i>Sheva ha-Ḥayyot ha-Tehorot</i>,” <i>Torah u-Madda</i>, vol. 4, no. 2 (Elul 5735), p. 3 and p. 48. Those authors object to identification of the <i>zemer</i> as the giraffe on the grounds that the <i>zemer</i> is enumerated together with other <i>ḥayyot</i> (as distinct from <i>behemot</i>, as will later be explained) whereas the giraffe does not have the distinctive horns of a <i>ḥayyah</i> and hence is presumably a <i>behemah</i>.</i> Rabbi Hamami adduces an impressive list of sources, albeit mostly obscure in nature, that either identify the giraffe as the <i>zemer</i> of Scripture or otherwise refer to the giraffe as a kosher animal. Indeed, the giraffe, since it has split hoofs and chews its cud, appears to be readily identified as a kosher animal.8<i class="footnote">Yehudah Felix, <i>Ḥai ve-Ẓomeaḥ ba-Torah</i> (Jerusalem, 5744), p. 93, reports that the giraffe, although it is a ruminant, is a three-stomached (rather than four-stomached) animal. This is also true of the mouse-deer which is presumably a kosher animal.</i>
  The author of the article published in <i>Kokhavei Yizḥak</i> similarly regards the giraffe as a kosher species but, rather than identifying it with the <i>zemer</i>, he somewhat fancifully identifies it as the <i>taḥash</i>, the animal whose skin was used in the construction of the tabernacle as described in Exodus 25:5. The Gemara, <i>Shabbat</i> 28b, depicts the <i>taḥash</i> as a species that existed "in the days of Moses," that was made available to Moses for the specific purpose of use in construction of the tabernacle and that was subsequently concealed. Identification of the <i>taḥash</i> with the giraffe is based upon Targum Onkelos' translation of <i>taḥash</i> as "<i>sasgavna</i>," i.e., a creature that "delights in its colors," and the Arabic meaning of the term <i>zerafah</i>, i.e., "beautiful," as well as the putative derivation of the Hebrew "<i>taḥash</i>" from the verb "<i>ḥashoh</i>" meaning to be silent, reflecting the erroneous belief that the giraffe is mute.
  R. Shlomoh Schuck suggests that the <i>taḥash</i> was a distinct kosher species but, as a result of crossbreeding with some other species, the giraffe appeared. Oddly, Rabbi Schuck believes that some giraffes are ruminants with split hoofs, some have only incompletely split hoofs, some resemble cows in part and camels in part, while others resemble, deer. He also maintains that scientists regard the giraffe as a species of camel. The camel, of course, chews its cud but does not possess cloven hoofs. He explains the existence of giraffes having such diverse physical characteristics on the basis of his contention that the giraffe is the product of crossbreeding.
  Rabbi Schuck bolsters this thesis by pointing to the enumeration in Genesis 32:15-16 of the various species of animals sent by Jacob as a gift to his brother Esau. Scripture first mentions goats and sheep, then camels, followed by cattle and, finally, donkeys. The order is puzzling in that the enumeration of clean species is interrupted by mention of camels, an unclean species, while the other unclean species, <i>viz</i>., donkeys, is mentioned last. Rabbi Schuck suggests that the "camel" to which reference is made is none other than the <i>taḥash</i>. He contends that at a later period the <i>taḥash</i> was bred with a non-kosher species, i.e., a non-kosher camel, and that the giraffe was the product of that union. Rabbi Schuck seems to believe that the common species of the present-day giraffe, produced as a result of crossbreeding, possesses hoofs that are incompletely split and hence is obviously non-kosher, but that the original giraffe was a ruminant with completely split hoofs. In any event, if Rabbi Schuck were to be correct in describing its origin, the present-day giraffe, since it would be descended from a non-kosher ancestor, could not be regarded as a kosher species.
  In developing their theses these two authors fail to take note of a highly significant halakhic presumption. The Gemara, <i>Bekhorot</i> 7a, declares that members of kosher and non-kosher species cannot crossbreed. Thus, if a questionably kosher animal successfully mates with a member of a kosher species and produces offspring, the animal in question must be deemed to be a member of a kosher species. Accordingly, the giraffe could not be the hybridized progeny of a kosher species and a non-kosher camel. It is rather odd that these writers do not address this issue. Far-fetched as it may seem, they may have postulated that the Gemara is reporting the empirical realia of its time as well as of the present-day world, but that in antiquity such crossbreeding may have occurred.
  In the modern period, a related issue was raised in 1950 by the <i>Va'ad ha-Rabbanim ha-Haredim</i> of Paris, with regard to a different species. The Parisian rabbis sought to establish kosher slaughter in Madagascar in order to export meat to Israel. The breed of cattle slaughtered in Madagascar originated in India and is referred to as the "Indian ox." The animal is identified as the zebu, a type of humped cow that originally came from India but is now found in many other countries. The animal differs in physical appearance from European cattle. In addition to being somewhat bigger and having somewhat larger horns than other cattle, its mane has a distinctive appearance with hair that stands upright in the area of the neck. The rabbinical association sought the guidance of the then Chief Rabbi of Israel, Rabbi Isaac ha-Levi Herzog, with regard to whether or not the animal, which has split hoofs and is a ruminant, might be considered to be kosher. Rabbi Herzog's response has now been published in his <i>Pesakim u-Ketavim</i>, vol. IV (Jerusalem, 5750), no. 20. Unfortunately, the concluding section of the responsum is missing. The issue was also addressed at the time by R. Meshullam Roth, <i>Teshuvot Kol Mevaser</i>, I, no. 9.9<i class="footnote">The identity of the zebu as a kosher species again became a matter of concern during the early months of 2004 in the wake of allegations that the lion’s share of meat sold in Israel, including <i>glatt</i> meat, is imported from Argentina and is, in fact, meat of the zebu. Reportedly, the zebu is far less likely than other cattle to have adhesions on its lungs and hence has the desirable characteristic of being <i>glatt</i> beyond cavil. See <i>Ha-Maḥaneh ha-Ḥaredi</i>, 25 Adar 5764, pp. 37–38. See also the immediately following section of this chapter.</i>
  The concern of the Parisian rabbis was based upon the opinion of <i>Teshuvot Bet Ya'akov</i>, no. 41, cited by <i>Pitḥei Teshuvah, Yoreh De'ah</i> 80:1. Shulḥan Arukh, Yoreh De'ah 80:1, records a number of variations of particular characteristics of animal horns that can be relied upon to distinguish between the biblical categories of <i>behemah</i> (animal) and <i>ḥayyah</i> (generally translated as "wild beast"). A portion of the blood of a <i>ḥayyah</i> must be covered with earth after slaughter and its <i>ḥelev</i> (the fat of certain parts of the animal that in a sacrificial <i>behemah</i> was burned upon the altar) is permitted as food, whereas a <i>behemah</i> does not require covering of its blood but its <i>ḥelev</i> is prohibited.
  <i>Bet Ya'akov</i> goes beyond the position of the <i>Shulḥan Arukh</i> in asserting that, in addition to having split hoofs and chewing its cud, a <i>ḥayyah</i>, in order to be considered kosher, must have the distinctive horn characteristics of a kosher species. The <i>Va'ad ha-Rabbanim</i> of Paris was concerned that the "Indian ox" may be a <i>ḥayyah</i> rather than a <i>behemah</i> (as are other cattle) and hence, according to <i>Bet Ya'akov</i>, could be considered kosher only if it possesses the idiosyncratic characteristics of a kosher <i>ḥayyah</i>. Both Rabbi Roth and Rabbi Herzog dismiss the concern voiced by the <i>Va'ad ha-Rabbanim</i> by advancing halakhic evidence contradicting the position of <i>Bet Ya'akov</i> and also by citing earlier authorities, including the compiler of <i>Pitḥei Teshuvah</i>, who rejected <i>Bet Ya'akov</i>'s novel view.10<i class="footnote"><i>Kol Mevaser</i> further argues that the “Indian ox” must be considered kosher even according to <i>Bet Ya‘akov</i>. His argument is that, if the animal in question does not exhibit the characteristics of a <i>ḥayyah</i>, it must be regarded as a <i>behemah</i>; however, if it is indeed a <i>behemah</i>, since it is a ruminant and has split hoofs, it should be deemed to be a kosher <i>behemah</i>. However, <i>Kol Mevaser</i> seems to have misread the cited statement of <i>Bet Ya‘akov</i>. <i>Bet Ya‘akov</i> maintains that a <i>ḥayyah</i> lacking the idiosyncratic horns of a kosher <i>ḥayyah</i> is not a <i>behemah</i> but a non-kosher <i>ḥayyah</i>.</i>
  The consideration raised with regard to the "Indian ox" is also germane with regard to the giraffe, i.e., according to <i>Bet Ya'akov</i>, if the giraffe is a <i>ḥayyah</i> rather than a <i>behemah</i> it can be accepted as a kosher animal only if it possesses the idiosyncratic horns of a kosher <i>ḥayyah</i>.
  However, a second and even more crucial issue was raised by the <i>Va'ad ha-Rabbanim</i> that is directly relevant to the case of the giraffe as well. The rabbis of Paris reported that an unnamed person had objected to the slaughter of the zebu because we are not in possession of a tradition identifying it as a kosher animal. In support of his objection that scholar drew attention to a statement of <i>Hokhmat Adam</i> 36:1 who declares that not only birds but also animals cannot be eaten on the basis of reliance upon the codified criteria of kosher species; rather, they may be consumed only if there exists a received tradition regarding the permissible status of the animal in question.
  This significant issue is not addressed either in <i>Kol Mevaser</i> or in the published version of Rabbi Herzog's responsum. However, <i>Hazon Ish, Iggerot Hazon Ish</i>, I, no. 99 and <i>Hazon Ish, Yoreh De'ah</i> 11:4, reprinted in <i>Pesakim u-Ketavim</i>, IV, no. 21, unequivocally agrees that the "Indian ox" cannot be permitted for precisely that reason. That view was forcefully reiterated by <i>Hazon Ish</i> in a subsequent letter published in <i>Iggerot Hazon Ish</i>, II, no. 83 and <i>Hazon Ish, Yoreh De'ah</i>, 11:5 and in yet a third letter published in <i>Iggerot Hazon Ish</i>, III, no. 113, reprinted in <i>Pesakim u-Ketavim</i>, IV, no. 22. However, as <i>Hazon Ish</i> himself notes, his ruling is predicated upon the assumption that the physical appearance of the "Indian ox" is sufficiently different from that of cattle for it to be regarded as a separate species for purposes of Halakhah.
  The rule requiring a received tradition with regard to identification of a species as kosher is recorded by Rema, <i>Yoreh De'ah</i> 82:3, with regard to birds. The rationale underlying the rule with regard to birds is readily understandable. Leviticus 11:13-14 and Deuteronomy 14:12-18 identify a series of non-kosher avian species and declare all other birds to be permissible. Although each of these species is named in Scripture, we are not able to identify all of the enumerated species with certainty. Undoubtedly, many of those species are indigenous to particular locales and hence would not be recognized by persons living in other areas. Moreover, the names themselves, as given in the Pentateuch, are unfamiliar to us and we have no authoritative translation into languages with which we are familiar. Nevertheless, as recorded by Shulḥan Arukh, Yoreh De'ah 82:2, the Sages enumerated a number of physical characteristics that are manifested only by kosher species. However, the presence of those characteristics is dispositive only if, in addition, it is known that the bird is not "<i>dores</i>," i.e., it does not seize and kill its prey before consuming its flesh. Shulḥan Arukh, Yoreh De'ah 82:3, then proceeds to list additional criteria that establish that the bird is not <i>dores</i>. Rema disagrees and rules that those characteristics cannot be relied upon to establish with certainly that the bird is not <i>dores</i> and hence Rema rules that, unless there is a received tradition with regard to the permissibility of the particular species, it may not be eaten. The concern is quite simple. It is obvious that if a bird is <i>dores</i> it is <i>ipso facto</i> known to be non-kosher. However, failure to observe the bird performing such an act does not conclusively establish that it never does so. Failure to observe an event does not establish that the event has not occurred or that it will not occur in the future.11<i class="footnote">Cf., <i>Arukh ha-Shulḥan, Yoreh De‘ah</i> 83:16–29.</i> Accordingly, only a tradition going back century after century to the time when the identity of the enumerated non-kosher birds was known with certainty can establish that the species in question, since it was eaten at that time, was known not to have been one of the forbidden species.
  Shulḥan Arukh, Yoreh De'ah 80:1, records the rule that, unlike with regard to a <i>behemah</i>, the <i>ḥelev</i> of a <i>ḥayyah</i> may be eaten and then proceeds to list the physical characteristics that serve to distinguish a <i>ḥayyah</i> from a <i>behemah</i>. <i>Shakh, Yoreh De'ah</i> 80:2, offers a terse comment: "Since, at present, we know only what we have received by way of tradition [as is the case]… with regard to the characteristics of birds, I have abbreviated [my commentary]." <i>Pri Megadim, Siftei Da'at</i> 80:1, observes that since the criteria of kosher species, i.e., split hoofs and chewing of the cud, are explicitly spelled out in Scripture there is no need for a tradition with regard to the <i>kashrut</i> of any particular animal species. Hence, he understands <i>Shakh</i>'s comment as limited to the acceptance of a particular species as a <i>ḥayyah</i> rather than as a <i>behemah</i>. According to <i>Pri Megadim</i>'s understanding of <i>Shakh, Shakh</i> declares that in the absence of a tradition, we cannot accept a species as a <i>ḥayyah</i> on the basis of the enumerated physical characteristics in order to permit the <i>ḥelev</i> of a particular species nor can we rely upon the absence of those characteristics in order to exempt the animal from covering a portion of its blood with earth following slaughter. <i>Pri Megadim</i>'s position is endorsed by <i>Kaf ha-Hayyim, Yoreh De'ah</i> 80:5 and by <i>Darkei Teshuvah</i> 80:3.12<i class="footnote">See also <i>Pri To’ar</i>, <i>Yoreh De‘ah</i> 80:30.</i>
  However, <i>Hokhmat Adam</i> 36:1,13<i class="footnote">Cf., however, R. Pinchas Eliyahu Eisenthal, <i>Ha-Maḥaneh ha-Ḥaredi</i>, 25 Adar 5764, p. 38, who interprets <i>Ḥokhmat Adam</i>’s comment as referring only to the question of <i>ḥelev</i> of a <i>ḥayyah</i> in conformity with <i>Pri Megadim</i>’s understanding of <i>Shakh</i>, i.e., as ruling that a <i>mesorah</i> is required only to establish that the animal is a <i>ḥayyah</i> rather than a <i>behemah</i> for purposes of permitting consumption of its <i>ḥelev</i>.</i> <i>Arukh ha-Shulḥan, Yoreh De'ah</i> 80:10, and <i>Hazon Ish</i>, as well as <i>Erekh ha-Shulḥan</i>, <i>Yoreh De'ah</i> 80:10 and 82:29, understand <i>Shakh</i> as declaring that all animals are similar to birds in that no species may be accepted as kosher in the absence of a tradition confirming its status.14<i class="footnote">Rabbi Ari Z. Zivotofsky, “<i>Kashrut</i> of Exotic Animals: The Buffalo,” <i>Journal of Halacha and Contemporary Society</i>, no. 38 (Fall, 1999), cogently draws attention to the fact that the status of the buffalo is also problematic. This may appear odd to students of <i>Yoreh De‘ah</i> since, basing himself on much earlier authority, <i>Shulḥan Arukh</i>, <i>Yoreh De‘ah</i> 28:4, identifies the buffalo as a kosher species. Rema agrees but, unlike <i>Shulḥan Arukh</i> who classifies the animal as a <i>behemah</i>, Rema declares that it is doubtful whether its status is that of a <i>behemah</i> or of a <i>ḥayyah</i>. That reference, however, is not to the American buffalo but to a different animal, probably the Asian water buffalo which was introduced to Europe at an early date, but possibly the European bison or, less likely, the African buffalo. The animal referred to in this country as a “buffalo” is not really a buffalo but a unique species of bison. The American bison is indigenous to North America and hence was unknown to the author of <i>Shulḥan Arukh</i> and certainly could not have been known to the much earlier authors upon whom <i>Shulḥan Arukh</i> relies. Since the animal is indigenous to the New World it is obvious that there exists no tradition with regard to its status as a kosher animal. The fact that sale of the meat of the American bison was sanctioned some years ago by a number of <i>kashrut</i> supervising agencies does not necessarily indicate reliance upon the position of <i>Pri Megadim</i>. It may signify nothing more than the understandable, albeit erroneous, assumption that the animal is identical to the “buffalo” expressly sanctioned by <i>Shulḥan Arukh</i>. Moreover, even <i>Ḥazon Ish</i> did not unequivocally brand the “Indian ox” or zebu as unacceptable but indicated that the ultimate determination must rest upon the extent of its similarity to more common cattle. Although halakhic categories and scientific classifications are by no means coextensive or even overlapping, the American buffalo is scientifically classified either as a member of the same genus as true cattle or together with the European bison. The matter can be resolved only by a comparison of the physical characteristics of the American bison with those of the cow or, assuming there is a tradition with regard to its status as a kosher animal, the European bison.Cf., R. Israel Belsky, <i>Mesorah</i>, no. 20 (Adar 5764), who writes that <i>Ḥazon Ish</i> would have permitted the American bison because it should be considered to be an “ox.” That allegation is entirely unfounded. Zebu, forbidden by <i>Ḥazon Ish</i> are far more similar to cattle, both zoologically and in terms of gross appearance, than are bison. Cf., <i>Halacha Berurah</i>, published by Zeirei Agudath Israel, vol. 7, no. 3, p. 3 and p. 4, note 24, in which R. Belsky himself acknowledges that the American bison is not permissible according to <i>Ḥazon Ish</i>.Parenthetically, the Gemara, <i>Bekhorot</i> 7a, states that a <i>ḥayyah</i> and a <i>behemah</i> cannot mate and produce progeny. Accordingly, the phenomenon of the “beefalo,” a cross between a buffalo and a cow whose meat is commercially available, should demonstrate that the American buffalo is a <i>behemah</i> rather than a <i>ḥayyah</i>. There appears to be no available information with regard to whether any of the other species of buffalo to which Rema may have referred can be crossbred with cattle.</i> <i>Hazon Ish</i> professes that "it is not incumbent upon us to seek reasons" for this stringency15<i class="footnote">R. Joseph Ber Soloveitchik, author of <i>Bet ha-Levi</i>, is quoted in <i>Netivot Rabboteinu le-Bet ha-Levi Brisk</i>, II (Jerusalem, 5763), 102, as stating, “for without a ‘<i>masoret</i>’ it is impossible to permit an ox, even if all the known characteristics are present, with the argument that it is the ox of which the Torah speaks.” The statement was made in the context of identification of the <i>ḥilazon</i>. <i>Bet ha-Levi</i> cites the verse, “Ask your father and he will tell you, your elders (<i>zekenekha</i>) and they will say to you” (Deuteronomy 32:7) and explains the apparent redundancy in the two clauses as follows: The term “<i>zekenekha</i>,” generally rendered as “elders,” also means “wise men.” In this instance it clearly has the latter meaning, i.e., the “wise men” are charged with responding to questions of Halakhah. The first clause, however, speaks of questions addressed to a father who must transmit the answer. The subject of that question addressed to fathers rather than Torah scholars, declares <i>Bet ha-Levi</i>, is empirical in nature, i.e., a matter of fact (<i>meẓi’ut</i>) upon which Halakhah is predicated that must be transmitted by means of a tradition passed down from generation to generation.</i> but that it probably arose in order to prevent error with regard to identification of an unfamiliar species as a <i>ḥayyah</i> or as a <i>behemah</i> and consequent inadvertent transgression with regard to <i>ḥelev</i> or covering the blood. <i>Hazon Ish</i> also asserts that it serves to prevent transgression with regard to the prohibition of <i>treifot</i> that is attendant upon certain anatomical anomalies.16<i class="footnote">Thus, on the basis of the reasons for the prohibition spelled out by <i>Ḥazon Ish</i>, the fact that the zebu can hybridize with cattle is entirely irrelevant. Rabbi Zivotofsky, “<i>Kashrut</i> of Exotic Animals,” pp. 126–127, seems to have missed this point. Cf., <i>Halacha Berurah</i>, vol. 7, no. 3, p. 3 and p. 4, note 27. Moreover, whether the basis of this halakhic position is fear of genetic mutation, possible <i>treifut</i> or some other consideration, it is clear that <i>Shakh</i> and those who follow his ruling declare that, in the absence of a <i>mesorah</i>, the biblical criteria of a kosher species, i.e., a split hoof and chewing of the cud, cannot be relied upon in establishing the <i>kashrut</i> of a species. If biblically prescribed criteria that tautologically define kosher species are for some reason unacceptable, <i>a fortiori</i>, a rabbinically recognized criterion that is merely emblematic of the presence of defining criteria cannot be acceptable. Thus it is not surprising that neither <i>Shakh</i> nor any authority following in his footsteps indicates that the hybridization phenomenon serves as a substitute for a <i>mesorah</i>. Nor, to my knowledge, is there any authority who accepts the hybridization phenomenon as a substitute for a <i>mesorah</i> with regard to birds.In a letter to the editor published in <i>Tradition</i>, vol. 36, no. 2 (Summer, 2002), p. 108, Rabbi Zivitovsky claims that “… many authorities have been willing to rely on the hybridization principle to rule that a bird species is kosher even in the absence of a tradition (see the discussions in, e.g., <i>Ḥatam Sofer</i>, <i>Yoreh De’a</i> 74; <i>Netsiv, Meshiv Davar</i>, <i>Yoreh De’a</i> 22; <i>Avnei Nezer</i>, <i>Yoreh De’a</i> 1:75; <i>Maharsham, Da’at Torah</i>, <i>Yoreh De’a</i> 82:3). That being the case, it would seem that, <i>kal va-ḥomer</i>, the hybridization principle should govern in the case of animals, for whom the tradition requirement is less certain and generally considered a stringency of recent vintage.” Rabbi Zivitovsky reads into the first three sources that he cites much more than they contain. The fourth source, <i>Da‘at Torah</i> of the <i>Maharsham</i>, contains nothing of relevance to this discussion.Each of the sources deals with problems associated with one or more species of wild duck or wild goose. Although accepted by <i>Ẓemaḥ Ẓedek</i>, <i>Yoreh De‘ah</i>, no. 60, as a member of the same species as the domestic duck or goose, the majority of rabbinic authorities of the day regarded the fowl under discussion as significantly different in its physical characteristics from the species recognized as kosher and, in the absence of a <i>mesorah</i>, refused to recognize the wild duck as kosher. [See, however, R. Yonatan Eybeschutz, <i>Peleti</i> 82:2 and <i>Kereti</i> 82:9, who refers to the bird as a “wild goose” and rules that it is a kosher species.]Some ducklings of that species were permitted to mingle freely with domestic ducks. The question posed to <i>Ḥatam Sofer</i> was whether future born ducklings born to female domestic ducks were to be regarded as kosher since the fathers may well have been members of unacceptable species of wild duck, <i>Ḥatam Sofer</i> permitted those offspring on the basis of a combination of a number of considerations: 1) <i>Ẓemah Ẓedek</i> ruled that the wild duck was a permitted bird; 2) the ducklings had the physical characteristics of the mother duck, indicating that the father was probably of the same species; 3) the majority of male ducks having access to the females were of the kosher species; and 4) whether or not paternal status could render the offspring non-kosher (<i>ḥosheshin le-zera ha-av</i>) is itself a matter of halakhic doubt. For purposes of the present discussion, the crucial point is that <i>Ẓatam Sofer</i> did not rule that successful hybridization served to confirm <i>Ẓemah Ẓedek</i>’s ruling beyond cavil. <i>Ḥatam Sofer</i> regards the wild duck as a non-kosher bird despite the fact that it was capable of breeding with a kosher species. Indeed, <i>Ḥatam Sofer</i> explicitly affirms that hybridized progeny of that bird are also non-kosher; his lenient ruling is based in part upon the probability that the ducklings in question were not hybridized but sired by a kosher duck. Thus, <i>Ḥatam Sofer</i> clearly refuses to accept the hybridization principle as a substitute for the requisite <i>mesorah</i>.<i>Meshiv Davar</i> addresses the status of an apparently different species of duck that had been accepted as kosher in some locales. His interlocutor points out that those ducks mate freely with species of duck accepted as kosher. Although <i>Meshiv Davar</i> accepts the species as kosher for a number of reasons, including the fact that it shows no preference whatsoever for its own species over partners from the domestic species, he explicitly rejects the hybridization principle as dispositive with the comment “… for we accept the wild duck as unclean [despite the fact that] it procreates from our duck.”Rabbi Zivitovsky fails to cite <i>Avnei Nezer, Yoreh De‘ah</i>, no. 76, dealing with a particular species of duck or goose in which he notes that they breed with kosher species but nevertheless, without citing <i>Bekhorot</i> 7a, comments that, since the two species are housed together for breeding purposes, the fact that they mate does not establish the <i>kashrut</i> of the species. In the very next paragraph he then queries how any bird can be regarded as kosher since it may have a non-kosher progenitor and offers several resolutions to that problem. Quite obviously, <i>Avnei Nezer</i> does not accept the hybridization phenomenon as a substitute for a <i>mesorah</i>.<i>Avnei Nezer</i>, <i>Yoreh De‘ah</i>, no. 75, discusses an apparently different species of duck. It seems that the only physical characteristic of the species in question that gave <i>Avnei Nezer</i> pause in issuing a permissive ruling was that, unlike other ducks, its quack was “hoarse.” <i>Avnei Nezer</i> points to the fact that the duck in question breeds with accepted duck species as indicating that they are truly the same species. In that responsum there is no evidence that he would have accepted the hybridization principle as independent validation of the <i>kashrut</i> of the bird in situations in which its physical characteristics were markedly different from an accepted species. Read together with the immediately following responsum, that conclusion is inescapable.Parenthetically, <i>Ḥatam Sofer</i> and others express some reservation with regard to the applicability of the hybridization principle of <i>Bekhorot</i> 7a to birds. In context, the principle is formulated with regard to animals and hence its extension to birds is a matter of at least some doubt. Thus, logically, grounds for application of the principle to animals are stronger than for birds. However, methodologically, Rabbi Zivitovsky is quite correct. Since <i>Shakh</i>’s requirement of a <i>mesorah</i> to animals is simply an extension of the rule accepted with regard to birds, any alternative mode acceptable with regard to birds should therefore be acceptable with regard to animals as well.However, since no authority accepts the hybridization phenomenon as an alternative to a <i>mesorah</i> with regard to birds, there is no evidence supporting its acceptability with regard to animals. In light of both <i>Shakh</i>’s failure to regard the hybridization phenomenon as an alternative to a <i>mesorah</i> and <i>Ḥazon Ish</i>’s formulation of the reasons underlying <i>Shakh</i>’s stringency which, as Rabbi Zivitovsky himself candidly concedes, apply with equal cogency in the presence of hybridization, there is simply no basis for concluding that, according to <i>Shakh</i>, hybridization is other than an irrelevant phenomenon.</i> Those anomalies, he claims, particularly with regard to certain structures of the lung, are difficult to recognize in unfamiliar species.17<i class="footnote">Refraining from an act because of fear of actual transgression, even if such fear is unwarranted, or as a <i>seyag</i> or “fence” designed to prevent transgression in other instances does not involve transgression of “You shall not add thereto” (Deuteronomy 13:1). The statement to the effect that Rabbi Herzog suggested that those who require a tradition confirming the <i>kashrut</i> of an animal species are in violation of this commandment is misleading. See Rabbi Zivotofsky, “<i>Kashrut</i> of Exotic Animals,” p. 126. Rabbi Herzog expresses doubt with regard to whether a “rebellious elder” (<i>zaken mamre</i>) who forbids the meat of such an animal, <i>contra</i> a formal ruling of the Great Sanhedrin, is in violation of the prohibition. Such an individual does not incur capital punishment for issuing a ruling of that nature since the matter cannot result in a transgression involving the penalty of excision (<i>karet</i>) on the part of any person who obeys his ruling. Rabbi Herzog expresses doubt with regard to whether, despite the absence of capital punishment, a person ruling in such a manner nevertheless violates the commandment “You shall not add thereto.”</i> It may also be suggested that the consideration reflected in this practice is a fear that an unknown species may, in reality, be the product of genetic mutation of a progenitor that itself was a member of a non-kosher species. Progeny of non-kosher animals are non-kosher even if such progeny manifest all the indicia of kosher species.18<i class="footnote">For a fuller elucidation of this point see this writer’s “The Babirusa: A Kosher Pig?” <i>Contemporary Halakhic Problems</i>, III (New York: 1989), 66–67.</i>
  In any event it is clear that, since we lack a tradition with regard to the identity of the present-day giraffe,19<i class="footnote">In an addendum to R. Yitzchak Yosef’s <i>Yalkut Yosef</i>, vol. 10 (Jerusalem, 5759), pp. 553ff., R. Abraham Hamami argues that the identification of the <i>zemer</i> as the giraffe by R. Saadia Ga’on, Redak and others serves to establish a tradition with regard to its status as a kosher animal. That argument cannot be accepted for two reasons: 1) The identification of the <i>zemer</i> as the giraffe is hardly uncontested. Indeed, it would appear from the discussion of the Gemara, <i>Ḥullin</i> 80a, that the <i>zemer</i> is a wild goat. 2) None of the scholars who make the identification necessarily do so on the basis of a received tradition. Indeed, their translation of the term “<i>zemer</i>” may have simply been based upon the Septuagint. It is significant that Rabbi Hamami does not repeat this contention in his later contribution to <i>Teḥumin</i>; on the contrary, he explicitly concludes that, according to <i>Ḥokhmat Adam</i> and <i>Arukh ha-Shulḥan</i>, the giraffe cannot be permitted.</i> consumption of its meat, although permitted by <i>Pri Megadim</i> and those who accept his interpretation of <i>Shakh</i>, would be forbidden by <i>Hokhmat Adam, Arukh ha-Shulḥan</i> and <i>Hazon Ish</i>,20<i class="footnote"><i>Ḥazon Ish, Yoreh De‘ah</i> 11: 4, asserts that, even if <i>Ḥokhmat Adam</i> erred in his understanding of <i>Shakh</i>, <i>Ḥokhmat Adam</i>’s codification of that view served to establish the normative rule. The practice of not eating the meat of an animal for which we have no received tradition is clearly in the nature of a popularly established <i>seyag</i> or “fence” designed to prevent transgression and has the status of a normative prohibition. The particular historical age in which that practice arose is not material. Thus, argues <i>Ḥazon Ish</i>, even if <i>Ḥokhmat Adam</i> incorrectly interpreted the comment of <i>Shakh</i>, the inclusion of that view in <i>Ḥokhmat Adam</i>’s published compendium served to enshrine the practice in Eastern Europe. Accordingly, he asserts that, following publication of <i>Ḥokhmat Adam</i>, even <i>Pri Megadim</i> would concede that no animal may be eaten in the absence of a received tradition establishing it as a kosher animal. <i>Ḥazon Ish</i>’s point, although correct in theory, is based on the assumption that earlier unknown species were actually introduced into Eastern Europe subsequent to publication of <i>Ḥokhmat Adam</i>. Consequently, Jews then had the opportunity to establish the practice of rejecting consumption of the meat of those animals, thereby accepting the stringency of <i>Ḥokhmat Adam</i> and rendering it normative.</i> as well as by <i>Erekh ha-Shulhan</i>.21<i class="footnote">This is also the position of R. Amram Edrei, <i>Ha-Kashrut ve-Halakhah</i> (Jerusalem, 5157), p. 18 and pp. 20f.</i>
  The Zebu Problem
  The issues surrounding recognition of the zebu as a kosher animal were reviewed in the immediately preceding section in conjunction with discussions of the <i>kashrut</i> of the giraffe. As noted, the controversy dates to the late 1950s when an opportunity arose to import zebu to Israel from Madagascar. The then Chief Rabbi of Israel, Rabbi Isaac ha-Levi Herzog, ruled that the zebu was a kosher breed of cattle and was acceptable for kosher slaughter. That view was vigorously contested by Rabbi Abraham I. Karelitz, renowned as <i>Hazon Ish</i>. Assuming that the zebu differed markedly in its physical characteristics from other bovine species, <i>Hazon Ish</i> contended that no species can be accepted as kosher in the absence of a received tradition regarding its <i>kashrut</i>. In deference to <i>Hazon Ish</i>, the Israeli Chief Rabbinate declined to sanction the Madagascar source of supply and for decades nothing further was heard with regard to the matter.
  That controversy erupted again shortly before Purim 5764 with a report that meat imported by Israel from South America is actually the meat either of the zebu itself or of hybrid cattle resulting from the crossbreeding of the zebu with other species. It has been alleged that virtually all of the Israeli <i>kashrut</i> authorities, including those of the <i>glatt</i> kosher market, were slaughtering such animals. That contention met with a wide range of reactions. Some <i>kashrut</i> authorities vehemently denied the charges and, in one case, published a document issued by a meat-processing company certifying that that particular company deals only in Hereford and Angus cattle. Others responded with a candid acknowledgement that they did indeed slaughter zebu and had been doing so for a considerable period of time. They contended either that they rely upon the opinion of the many authorities who disagree with <i>Hazon Ish</i> or that the zebu they import is not the same species banned by <i>Hazon Ish</i>. Indeed, one animal physiologist, Dr. Lawrence Shore, a member of the faculty of the Weizmann Institute of Science, has claimed that the animal of which <i>Hazon Ish</i> spoke was not the zebu but the bison. One writer has claimed that the "zebu" and the South American "cebu," the Spanish term for zebu, are, in actuality, the names of different species.
  In the wake of those conflicting reports, Israel's preeminent halakhic decisor, Rabbi Joseph Shalom Eliashiv, convened an <i>ad hoc</i> committee and charged its members with investigating the factual basis of the allegations. In the interim, based upon a variety of considerations, he ruled that meat already on the market might be consumed but that no future slaughter of animals from the herds in question be undertaken pending clarification of the matter.
  The primary anatomical distinction of the zebu is the presence of a hump-like protrusion behind the head on its shoulders.22<i class="footnote">In <i>Koveẓ Iggerot Ḥazon Ish</i>, III, no. 113, <i>Ḥazon Ish</i> refers to Rabbi Herzog’s report that the horns of the “Indian ox” are different from those of kosher <i>ḥayyot</i>. The various sources seen by this writer remarking upon the idiosyncratic hallmarks of the zebu fail to speak of distinctive horns.Curiously, the biographers of <i>Ḥazon Ish</i>, Shlomoh Cohen, <i>Pe’er ha-Dor</i>, IV (Bnei Brak, 5733), 226, and Zevi Yavrov, <i>Ma‘aseh Ish</i>, I (Bnei Brak, 5759), 122, report that the animal prohibited by <i>Ḥazon Ish</i> had but one horn. Since the zebu has two horns either 1) the biographers were in error; 2) the animal in question was not the zebu; or 3) <i>Ḥazon Ish</i> was misinformed.</i> In fact the term "zebu" connotes humped cattle. The origin of the zebu as a distinct species is traced to India. It was introduced into Brazil at a rather early date and resulted in the development of an Indo-Brazilian species. The animal is hardier than other breeds of cattle and, unlike some breeds, thrives in warm climates. The Brahman, perhaps world wide the most popular breed of cattle, is one of the major zebu breeds. Brahman have loose, saggy skin with sweat glands that enable them to sweat freely through the pores of the skin, an adaptation that contributes materially to heat tolerance. They are also capable of walking long distances to obtain water. Apparently, however, the meat of the zebu is rather tough and hence it is often bred with other species. Early American settlers found the zebu to have advantages lacking in the cattle they brought from Europe and so a gradual process of interbreeding occurred. If the claims of the International Association of Zebu Breeders are to be accepted, crossbreeding with the zebu is extremely prevalent.23<i class="footnote">See &lt;a href=" If so, there are few cattle in either North or South America that can be presumed to be totally free of zebu ancestry, although in most cases the distinctive hump is no longer manifest. Indeed, Dr. Shore has asserted that, if <i>Hazon Ish</i> ate meat, he must have partaken of the meat of such animals because all meat available in Israel during his lifetime was derived from those hybrids. Hence Dr. Shore's contention that <i>Hazon Ish</i> was actually speaking of the bison.
  The controversy has been widely reported in the Israeli <i>ḥaredi</i> press, including <i>Yated Ne'eman, Yated ha-Shavu'a</i>, 26 Adar 5764, pp. 21-24; <i>Ha-Shavu'a be-Yerushalayim</i>, 28 Adar 5764, pp. 16-17; <i>Mishpaḥah</i>, 18 Adar 5764, pp. 2-3 and 25 Adar 5764, pp. 2-16 and p. 26; <i>Sha'ah Tovah, Parashat Ki Tissa</i>, 5764, pp. 7-9 and <i>Parashat Va-Yakhel-Pekudei</i>, 5764, pp. 12-24 and pp. 64-67; <i>Hadashot ba-Kehillah</i>, 25 Adar 5764, pp. 34-37; <i>Yated Ne'eman, Shabbat Kodesh, Parashat Va-Yikra</i>, pp. 10-11; and <i>Ha-Edah, Parashat Va-Yakhel-Pekudei</i>, 5764, p. 10 as well as in the <i>Jerusalem Post</i>, March 19, 2004, p. 45. The halakhic sources are reviewed in detail by R. Pinchas Eliyahu Eisenthal in the newspaper published by the Belz community, <i>Ha-Maḥaneh ha-Haredi, Parashat Va-Yakhel-Pekudei</i>, 5764, pp. 36-37, and reprinted in its <i>kashrut</i> journal, <i>Ha-Mehadrin</i>, pp. 51-58.
  The halakhic issues have already been examined in detail in conjunction with this writer's earlier discussion of the <i>kashrut</i> status of the giraffe and need only be briefly summarized. Rema, <i>Yoreh De'ah</i> 82:3, rules that the talmudic criteria that once served to distinguish the twenty-four scripturally identified forbidden birds and all others that are kosher can no longer be relied upon and hence no bird may be eaten unless there exists a received tradition with regard to its identity as a kosher species. <i>Shakh, Yoreh De'ah</i> 80:2, as understood by <i>Hokhmat Adam</i> 36:1; <i>Arukh ha-Shulḥan, Yoreh De'ah</i> 80:10; <i>Erekh ha-Shulḥan, Yoreh De'ah</i> 11:4-5; and <i>Hazon Ish, Iggerot Hazon Ish</i>, I, no. 99,24<i class="footnote">Reprinted in R. Isaac ha-Levi Herzog, <i>Pesakim u-Ketavim</i>, IV, <i>Yoreh De‘ah</i>, no. 21.</i> <i>Iggerot Hazon Ish</i>, II, no. 73 and <i>Iggerot Hazon Ish</i>, III, no. 113,25<i class="footnote">Reprinted in <i>Pesakim u-Ketavim</i>, IV, no. 22.</i> maintains that, despite the fact that Scripture explicitly spells out the identifying criteria of kosher four-legged animals, these animals also may not be consumed in the absence of a tradition with regard to the <i>kashrut</i> of the species. <i>Pri Megadim, Siftei Da'at</i> 80:1, however, understands <i>Shakh</i>'s comment as limited to the need for a tradition establishing that a particular species is a <i>ḥayyah</i> rather than a <i>behemah</i>.26<i class="footnote">There is a similar ambiguity inherent in the comment of Ibn Ezra, Deuteronomy 14:5. Ibn Ezra notes that there are a total of seven species of kosher <i>ḥayyot</i> of which “the sheep and the deer are known; the five remaining species require a tradition.” In all likelihood, Ibn Ezra intends to indicate—as does <i>Shakh</i>—that a <i>mesorah</i> is necessary in order to establish the <i>kashrut</i> of the species as one of the remaining five kosher <i>ḥayyot</i>. Ibn Ezra’s words, however, might be construed as indicating only the requirement of a tradition to the effect that the animal in question is a <i>ḥayyah</i> rather than a <i>behemah</i>.</i> The primary difference is that the <i>ḥelev</i>, i.e., the fatty portions of the hindquarters of a <i>behemah</i>, are forbidden while those of a <i>ḥayyah</i> are not. According to <i>Pri Megadim</i>, no tradition is necessary to establish the fundamental <i>kashrut</i> of an animal having split hoofs. <i>Pri Megadim</i>'s understanding of <i>Shakh</i> is accepted, <i>inter alia</i>, by <i>Kaf ha-Hayyim, Yoreh De'ah</i> 80:5, <i>Bet Yizḥak, Amudei Zahav</i> 80:3, and, more recently, by R. Samuel Ha-Levi Woszner, <i>Teshuvot Shevet ha-Levi</i>, X, no. 114.27<i class="footnote">R. Isaac ha-Levi Herzog clearly differed with <i>Ḥazon Ish</i> regarding this matter. Unfortunately, only a fragment of this responsum is extant and appears in <i>Pesakim u-Ketavim</i>, IV, <i>Yoreh De‘ah</i>, no. 20.</i> The controversy, of course, is of no relevance to Sephardim who follow the views of <i>Shulḥan Arukh</i> and do not accept Rema's stringency even with regard to birds.
  As this writer has previously noted, the identical issue surrounds acceptance of the American buffalo as a kosher animal. The American "buffalo" is not at all a buffalo but a bison indigenous to the North American continent with regard to which, unlike the European buffalo, there is no tradition.28<i class="footnote">See <i>supra</i>, note 14.</i> The subject of Rabbi Woszner's responsum is, in fact, the bison rather than the zebu. As noted earlier, Dr. Shore has also pointed out that bison are much more dissimilar to cattle than are the zebu.
  It may also be noted that <i>Hazon Ish</i> was somewhat less than absolute in his assertion that a zebu requires an independent tradition of <i>kashrut. Hazon Ish</i>'s hesitation was based on the fact that he did not examine a zebu and hence was somewhat unsure of whether its characteristics differ sufficiently from other species of cattle to trigger that requirement.29<i class="footnote">In responding to a second letter sent to him by Rabbi Herzog, in which Rabbi Herzog apparently argued that the zebu did not possess distinctive characteristics of material significance, <i>Ḥazon Ish, Koveẓ Iggerot Ḥazon Ish</i>, III, no. 113, referring to Rabbi Herzog’s original letter writes: “There was no discussion in the [first] letter of whether the distinctiveness of the ox is sufficient to create doubt that it may be a species other than the common ox; rather, it was determined that one must treat this as a new species that has come before us.”</i> That question can also be raised with regard to other species such as elk, antelope and bison as well.
  One further point should be noted. It is evident from <i>Kovez Iggerot Hazon Ish</i>, III, no. 113, that, in his second letter to <i>Hazon Ish</i>, Rabbi Herzog claimed that there was a <i>mesorah</i> or tradition with regard to the <i>kashrut</i> of the animal in question in the locale from which it was to be imported. <i>Hazon Ish</i> responded to that assertion with the observation that the <i>mesorah</i> of one country is of no avail in another country. Thus, <i>Hazon Ish</i>'s concern was only with regard to importing the "Indian ox" to Israel. Accordingly, in countries in which the local zebu were accepted as kosher before dissemination of the comment of <i>Shakh</i>, it is certainly arguable that consumption of the meat of the zebu presents no problem even according to <i>Hazon Ish</i>.
  
  Chapter X The Ketubah
  
  <i>…Shimon ben-Shetaḥ came and ordained that all the husband's property be surety for payment of[his wife's]</i> ketubah.
  KETUBOT 82b
  Recent years have seen the phenomenon of a veritable explosion in the publication of works on Halakhah. No doubt, the vast increase in such publications may be attributed in part to several secondary factors. In general, more books are now being sold than ever before. Computer typesetting has both speeded production and reduced costs, leading, at times, to hastily produced works of less than highest quality. The relative affluence of our society has resulted in ease of purchase and a vastly expanded marketplace. We live in an age of material acquisition. At a time that people are buying clothes, furnishings, gadgets, musical tapes and video cassettes with apparent abandon, it is not surprising to find many Jewish men and women of means purchasing new books as quickly as they are published. Jews, always known as the <i>am ha-sefer</i>, are now purchasing all manner of books and <i>sefarim</i> in large numbers. Primarily, however, the writing, publishing and purchase of Judaica and Hebraica reflect a pervasive "<i>zama lekha nafshi</i>," a thirst for Torah study and knowledge among all segments of the Jewish community.
  A particular genre of writing has achieved a new measure of popularity. As this writer has noted elsewhere,1<i class="footnote"><i>Contemporary Halakhic Problems</i>, IV (New York, 1995), introduction, pp. xi–xii.</i> the thirst for knowledge among members of the committed and observant community has spawned a plethora of publications, both in Hebrew and in the vernacular, devoted to matters of Halakhah. The reception greeting the appearance of these works reflects an ardent search, not only for knowledge of theoretical matters, but also for practical guidance and instruction. The past two decades or so have witnessed the appearance of an apparently never-ending series of monographs devoted to a single <i>mizvah</i> or even to a particular aspect of a <i>mizvah</i>. Since there are 613 biblical <i>mizvot</i> and innumerable rabbinic extensions, there is no shortage of fertile ground for research. Some of these volumes appear in the form of encyclopedic studies; others are brief and concise how-to books. Some are compilations of essays and responsa; others are cryptic restatements of Halakhah, usually accompanied by copious annotations.
  To be sure, these publications are not of uniform quality. Nevertheless, in many, if not most, cases these compilations contain valuable material presented in a carefully organized manner with exquisite attention to comprehensive detail. At times, addition of charts, diagrams and pictures enhances the usefulness of the work as, for example, is the case with regard to several works on laws of the four species and a number of monographs devoted to <i>sheḥitah</i> and <i>kashrut</i>. In many instances multiple works have been published dealing with the same halakhic problems. Thus, no fewer than four volumes devoted to the <i>mizvah</i> of <i>shiluaḥ haken</i> (sending away the mother bird) have appeared. The number of works devoted to laws of usury and family purity are too numerous to count. Almost, but not quite, in that category are compendia devoted to the laws of marriage and, in particular, the marriage ceremony. A number of those works contain material illuminating several aspects of the preparation of the <i>ketubah</i> that have aroused curiosity but with regard to which precedents and sources were heretofore virtually unknown to rabbis and laymen alike.
  I. Delivery of the Ketubah
  In recent years a novel practice has arisen in some circles with regard to delivery of the <i>ketubah</i> to the bride. In the past, it was standard practice for the officiant, after reading the document, simply to hand the <i>ketubah</i> to the bride or, alternatively, to a member of the bride's family to hold on her behalf.2<i class="footnote">That practice is reflected in a statement of <i>Knesset ha-Gedolah, Even ha-Ezer</i> 66:8, who counsels that the <i>ketubah</i> not be given to the groom lest he fail to deliver it to the bride but that it be placed directly in the hand of the bride or of one of her relatives.</i> It is now quite common for the officiant to give the <i>ketubah</i> to the groom and to direct him to deliver it to the bride3<i class="footnote">This practice may well have its origin in a consideration expressed by R. Mordecai Winkler, <i>Teshuvot Levushei Mordekhai, Even ha-Ezer</i>, no. 49, who remarks that it is not seemly for the officiant to hand the <i>ketubah</i> to the bride. <i>Levushei Mordekhai</i>, however, suggests that the <i>ketubah</i> be given to the bride’s father or to another relative.</i> and, moreover, to designate the individuals who served as attesting witnesses to the presentation of the ring to the bride to serve as well as witnesses to the delivery of the <i>ketubah</i>.
  Both the source of this practice and its rationale are unclear. The most prominent contemporary reference to this practice is that of R. Moshe Sternbuch, <i>Teshuvot ve-Hanhagot</i>, II (Jerusalem, 5754), no. 650, who reports that this was the practice of the <i>Brisker Rav</i>, R. Yitzchak Ze'ev ha-Levi Soloveitchik. A number of informative references to this innovation are also made by R. Samuel Eliezer Stern in his recently published monograph, <i>Seder Ketubah ke-Hilkhatah</i> (Bnei Brak, 5753). Included in that work is a letter by R. Joseph Efratti in which he conveys the views of R. Joseph Shalom Eliashiv. The report states that Rabbi Eliashiv does not regard the practice to be mandated by Halakhah, but that he nevertheless conducts himself in that manner because such was the wont of the late R. Iser Zalman Meltzer.4<i class="footnote">See R. Samuel Eliezer Stern, <i>Seder Ketubah ke-Hilkhatah</i> (Bnei Brak, 5753), p. 163. See also the exchange of letters between R. Avraham Ya’akov Zelaznick and Rabbi Joseph Shalom Eliashiv published in <i>Ẓohar</i>, ed. R. Elyakim Dworkes, II (Jerusalem, 5758), 37–42.</i>
  Upon first analysis, the practice seems to be without foundation. There is indeed a tannaitic controversy with regard to whether halakhic instruments such as a bill of divorce or a deed acquire validity by virtue of the signatures of witnesses or by virtue of the presence of attesting witnesses at the delivery of the instrument. As is evident from the discussion of the Gemara, <i>Gittin</i> 3b, R. Meir maintains that the efficacy of such instruments is conditioned upon the signatures of witnesses while, according to R. Eleazar, the instrument is effective only by virtue of the presence of witnesses at the time of delivery. According to many authorities, R. Eleazar maintains that the signature of witnesses on a deed is discretionary and is designed solely for evidentiary purposes, i.e., in the event that the witnesses die or are otherwise not available to testify to their earlier presence at the time of delivery of the instrument, their signatures demonstrate that such was in fact the case. Signatures of witnesses are indeed required on a bill of divorce but, according to R. Eleazar, only by reason of rabbinic decree designed to promote "perfection of the world" (<i>tikkun ha-olam</i>), i.e., in order to assure that the divorcée will be able to prove her capacity to contract a subsequent marriage. However, Rambam, <i>Hilkhot Geirushin</i> 1:16, rules that the presence of witnesses at the time of delivery is not an absolute requirement5<i class="footnote">Cf., however, <i>Tosafot, Gittin</i> 4a, s.v. <i>de-kaima lan</i>.</i> and accordingly declares that a bill of divorce is valid if it is either signed by witnesses or delivered in their presence. Nevertheless, Rambam also cites the view of "some of the Ge'onim" who ruled that the presence of witnesses at the time of delivery is an absolute requirement. Rambam's own position reflects the view that R. Eleazar recognizes that an instrument is validated either upon signature of witnesses or upon delivery in their presence.
  That controversy is, however, limited to instruments that are performative in nature, e.g., bills of divorce whose execution serves to sever the matrimonial bonds or deeds that serve to effect transfer of title from the seller to the purchaser.6<i class="footnote">Cf. <i>Tosafot, loc. cit.</i>, who assert that a deed is valid even according to R. Eleazar despite the absence of witnesses at the time of delivery since a signed deed is tantamount to acknowledgment by the seller that transfer of title has occurred. In matters effecting only property or financial obligations, a confession of judgment is accorded absolute credence even if it is known to be contrafactual.</i> There is no controversy with regard to non-performative instruments such as promissory notes. The obligation to repay a debt is engendered simply by acceptance of the funds advanced; the promissory note is but a memorial of the debt and, as such, its purpose is entirely evidentiary in nature. Since the purpose of a promissory note is evidentiary, there is no need—and indeed no role—for witnesses at the time of delivery of such a writing. Execution of a <i>ketubah</i> generates no new obligation. The obligation with regard to the statutory sum recorded in the <i>ketubah</i> arises from the marriage itself; additional obligations are generated by delivery and acceptance of a kerchief. The <i>ketubah</i> is designed to serve only as evidence of the assumption of the various obligations recorded in the instrument.7<i class="footnote">R. Avraham Zelaznick, <i>Ẓohar</i>, II, 38, reports that R. Aaron Kotler explained that the purpose of delivery of the <i>ketubah</i> in the presence of witnesses is to make it possible for the bride to proceed against successors in title to real estate that may have been conveyed on the day of the wedding subsequent to the marriage ceremony. Ordinarily, attestation of witnesses to an instrument of indebtedness generates a lien only as of the close of the day recorded in the instrument since there is no evidence of execution, and hence no evidence of a prior lien, at an earlier hour. Witnesses to delivery of the instrument can establish that the lien was indeed generated at an earlier hour enabling the bride to seize property transferred after that time. Rabbi Eliashiv, <i>ibid.</i>, p. 40, quite cogently counters that, even in a locale in which it is not the practice to draft a written <i>ketubah</i>, the financial obligation is actionable against subsequent purchasers upon the testimony of witnesses to the fact that a marriage has taken place. Rabbi Eliashiv points out that such testimony is available even if the witnesses do not observe the transfer of the <i>ketubah</i>.</i> Since that evidentiary function is fulfilled by the witnesses who sign the document there appears to be no further reason to require the presence of witnesses at the time of delivery.8<i class="footnote">Rabbi Stern, <i>Seder Ketubah ke-Hilkhatah</i>, p. 139, suggests that witnesses to delivery of a <i>ketubah</i> are necessary in instances in which the instrument contains erasures or words written between lines. Since such irregularities may represent fraudulent alterations of the instrument, their presence generally invalidates an instrument unless the irregularities are noted and certified as authentic in an endorsement appended to the document itself. <i>Bet Shmu’el, Even ha-Ezer</i> 125:35, does indeed state that a <i>get</i> containing such a defect but delivered in the presence of witnesses is valid by virtue of the fact that there can be no fraud antecedent to, or contemporaneous with, delivery effected in the presence of the witnesses. That conclusion is entirely cogent with regard to a <i>shetar kinyan</i>, or performative instrument, such as a <i>get</i>, that need not necessarily also serve as evidence. It appears entirely irrelevant with regard to an evidentiary instrument such as a <i>ketubah</i> since the possibility of tampering with the document after its delivery remains a cogent concern. Hence, insofar as the probative value of the instrument is concerned, such defects cannot be cured by delivery in the presence of witnesses.Rabbi Zelaznick (see <i>supra</i>, note 4) reports that R. Aaron Kotler explained that, since the signed instrument does not spell out the hour at which it was signed, it establishes a lien upon successors to real property only after the close of the day the <i>ketubah</i> is dated. Witnesses to the delivery, Rabbi Kotler allegedly contended, are needed to establish an immediate lien. Rabbi Eliashiv rebuts that contention arguing that such a claim would require the wife to produce the witnesses. If she were to be required to produce witnesses, a <i>kinyan</i> in the presence of witnesses would suffice and a written instrument would be rendered superfluous. The entire point of a written <i>ketubah</i>, argues Rabbi Eliashiv, is to eliminate the need for producing witnesses. If so, witnesses to the delivery are unnecessary.</i>
  Nevertheless, Rabbi Stern cites two very early sources that regard the <i>ketubah</i> as more than an evidentiary document reciting the groom's debt to his bride. A marriage need not necessarily be effected by means of presentation of a ring by the groom to the bride. It may also be effected by delivery of a properly executed document containing the formula "Be thou consecrated unto me etc." However, execution of such an instrument requires scrupulous adherence to myriad halakhic minutiae virtually identical to those surrounding execution of a bill of divorce. Presumably, it is because of the fact that the drafting and execution of the requisite instrument is as cumbersome as the execution of a bill of divorce that employment of an instrument (<i>shetar</i>) as a means of effecting a marriage is unheard of in our day and indeed may never have been widespread. Yet, judging from the contents of two geonic sources, the practice seems to have been common in at least some communities during the early post-talmudic period. In a responsum published in <i>Teshuvot ha-Ge'onim</i>, ed. Simchah Assaf (Jerusalem, 5787), no. 113, Rav Hai Ga'on decries use of a ring rather than a <i>shetar</i> as an innovation that should be abolished. In urging that a <i>shetar</i> be used for that purpose Rav Hai Ga'on writes:
  You should know that you incur great detriment by virtue of your custom of betrothing a woman other than at the time of the <i>ketubah</i> or <i>shetar</i> of betrothal. … Such was previously unheard of in Babylonia; they have no knowledge of marriage other than at the time of the <i>ketubah</i>. Many years ago, more than a hundred years, there was a custom in Kurasan (Kurdistan?) to betroth by means of a ring at a banquet or the like. There were many allegations, allegations of denial that marriage took place, and the matter resulted in detriment. Our master and teacher, Yehudah Ga'on, promulgated an ordinance that they not betroth other than in accordance with the manner of Babylonia, [i.e.,] with a <i>ketubah</i>, signature of witnesses and the blessing of the betrothal, and that any marriage not solemnized in this manner should be disregarded. … You also should set aside this practice and anyone who betroths without a <i>ketubah</i> and a <i>shetar</i> of betrothal, punish him until he rectifies the matter.
  The concern expressed by Rav Hai Ga'on seems to have been that, in the absence of the evidence supplied by a properly witnessed <i>shetar</i> of betrothal, it was relatively easy to deny that a marriage had actually occurred. The terminology of the ordinance ascribed to R. Yehudah Ga'on seems to indicate that the <i>ketubah</i> itself served as a <i>shetar</i> of betrothal.
  The format of the wedding ceremony included in the <i>siddur</i> of R. Sa'adia Ga'on provides that the bridegroom declare to the bride that she is consecrated to him "with this goblet and with its contents and with this <i>ketubah</i> and with what is written therein" and further instructs the groom to take the <i>ketubah</i> in his hand, deliver it to the bride and declare, "Take the <i>ketubah</i> in your hands so that with it you enter my domain according to the law of Moses and Israel." Rabbi Stern asserts that R. Sa'adia Ga'on describes a ceremony in which two separate modes of betrothal are employed, i.e., presentation of a goblet as an object of value and delivery of the <i>ketubah</i> as a <i>shetar kiddushin</i>.9<i class="footnote">Actually, the words of R. Sa’adia Ga’on lend themselves to an alternative interpretation. Rabbi Stern himself reproduces a manuscript version of an early Palestinian <i>ketubah</i> which recites that “so-and-so betrothed so-and-so with one ring and two hundred <i>zuzim</i> … and added of his own to her betrothal so-many and so-many Constantinian gold coins.…” See Seder <i>Ketubah ke-Hilkhatah</i>, p. 252. The import of that declaration is quite clear: The two hundred <i>zuzim</i> to which the husband obligates himself constitute a debt. This version of the <i>ketubah</i> stipulates that incurrence of that debt in favor of the wife is also to be deemed part of the <i>kesef kiddushin</i> (money or its equivalent) presented to her for purposes of marriage. Accordingly, R. Sa’adia Ga’on’s phrase “with this <i>ketubah</i> and with what is written in it” may also be understood as a reference to the debt recorded in that instrument which, through that declaration, is converted into a portion of the <i>kesef kiddushin</i>.Rabbi Sternbuch speaks of the “additional <i>ketubah</i>” (<i>tosefet ketubah</i>) voluntarily added by the groom, rather than the statutory two hundred <i>zuzim</i>, as constituting <i>kesef kiddushin</i>. He apparently assumes that the statutory sum, since it is mandated by law, does not constitute valid <i>kesef kiddushin</i> because it does not represent an object of value that would otherwise not be vested in the bride. That view is clearly not accepted by the anonymous draftsman of the “Palestinian <i>ketubah</i>,” apparently on the theory that the groom was under no legal compulsion to enter into the marriage and thereby assume the obligation of the two hundred <i>zuzim</i>. Thus, even the statutory sum of two hundred <i>zuzim</i> represents a gratuitous obligation on the part of the groom and may be converted into <i>kesef kiddushin</i>.More fundamental, however, is the question of whether assumption of any obligation on the part of the groom, as distinct from actual delivery of an object of value, may serve as <i>kesef kiddushin</i>. That view is apparently the subject of controversy among early-day authorities and is analyzed at length by <i>Keẓot ha-Ḥoshen</i> 190:6.</i>
  Rabbi Stern also cites two somewhat later sources that speak of the <i>ketubah</i> as fulfilling a secondary role as a <i>shetar kiddushin</i>. R. Aaron of Lunel, <i>Orḥot Hayyim, Hilkhot Ketubah</i>, sec. 1, writes, "The groom takes the <i>ketubah</i> and gives it to the bride … for, if the earlier betrothal was not effective, the [betrothal] will be effective by means of <i>shetar</i> for thus is written in [the <i>ketubah</i>]: 'Be thou my wife in accordance with the law of Moses and Israel.' " Similarly, <i>Teshuvot R. Eli ezer me-Trashkun</i>, no. 56, writes that the phrase "Be thou my wife" endows the <i>ketubah</i> with the status of a <i>shetar kiddushin</i> with the effect that if, as at times is the case, a borrowed ring is used in the marriage ceremony the marriage is effected by means of <i>shetar</i>.
  The thesis that a <i>ketubah</i> may also be effective as a <i>shetar kiddushin</i> (instrument of betrothal) is subject to a number of objections:
  1. No transaction is valid without intent of the parties. Since neither the bride nor the groom have the vaguest notion that the <i>ketubah</i> is a <i>shetar kiddushin</i>, there is no reason to assume that they intend to effect a marriage through its delivery and acceptance. Moreover, the witnesses to delivery of the <i>ketubah</i> are not at all aware of the fact that they are witnessing an act of betrothal. Consequently, the purported marriage by means of <i>shetar</i> should fail for lack of attesting witnesses.
  2. As is the case of a <i>get</i>, or a bill of divorce, which must be written for the express purpose of divorce (<i>le-shem gerushin</i>), a <i>shetar kiddushin</i> must be written for the express purpose of marriage. That rule is recorded by Rambam, <i>Hilkhot Ishut</i> 3:4, and by <i>Shulḥan Arukh, Even ha-Ezer</i> 32:1. In particular, the operative clause, "Be thou my wife," must be written by the scribe for the express purpose of generating a <i>shetar kiddushin</i>. Such intent on the part of the scribe is generally lacking; indeed the requirement of intent makes utilization of a printed form impossible. Since a printed <i>ketubah</i> cannot serve as a <i>shetar kiddushin</i>, delivery of that document in the presence of witnesses seems to serve no purpose. Moreover, <i>Shulḥan Arukh, Even ha-Ezer</i> 32:1, rules that a <i>shetar kiddushin</i> must be drafted with the prior knowledge of the bride. The bride certainly has no knowledge that the <i>ketubah</i> is drafted as a <i>shetar kiddushin</i>.
  It is indeed the case that <i>Or Sameaḥ, Hilkhot Ishut</i> 3:4, cites a number of talmudic sources in suggesting that the requirement of intent (<i>lishmah</i>) pertaining to a <i>shetar kiddushin</i> is somewhat different from that pertaining to a bill of divorce. A <i>get</i> must be written for the specific purpose of divorce and, moreover, for the specific purpose of the divorce of a particular husband and wife. The same principle applies to a <i>shetar kiddushin. Or Sameaḥ</i> suggests, however, that a <i>shetar kiddushin</i>, unlike a <i>get</i>, may be valid even if there is no specific declaration of intent on the grounds that the requisite intent is to be presumed or imputed (<i>setama lishmah ka'i</i>).
  <i>Or Sameaḥ</i>'s thesis is based upon an examination of the regulations governing similar types of intent (<i>lishmah</i>) in entirely different areas of Halakhah. An analogous requirement of intent is specified with regard to the offering of sacrificial animals. The animal must be slaughtered with intent to offer the animal for the appropriate category of sacrifice and to offer the animal on behalf of the proper party. Nevertheless, provided there is no contradictory intent, the already sanctified animal is deemed to have been offered for its designated purpose and on behalf of its owner. The already sanctified animal is, in a sense, "preprogrammed" for a particular purpose and owner and, hence, constructive intent already exists. Such constructive intent is not imputed in the drafting of a bill of divorce. The distinction lies in the fact that women are not customarily divorced by their husbands and therefore actual intent is required.
  <i>Or Sameaḥ</i> notes that the Sages of the Talmud assumed that it is normal and usual for a woman to marry. Hence, argues <i>Or Sameaḥ</i>, intent for marriage may be imputed constructively with the result that explicit intent to draft the instrument for purposes of marriage is not necessary. <i>Or Sameaḥ</i> himself expresses doubt with regard to the validity of that conclusion. <i>Or Sameaḥ</i> notes that it may indeed be normal and usual for a woman to marry, but not necessarily to marry the man named in the <i>shetar kiddushin</i>. Accordingly, there is no basis to impute constructive intent to draft the instrument as a <i>shetar kiddushin</i> for the particular parties named therein. Nevertheless, Rabbi Sternbuch tentatively suggests that, if the couple have previously bound themselves by articles of engagement subject to the penalty of <i>ḥerem</i> or excommunication for breach of promise, a presumption of intent does arise in the drafting of the <i>shetar kiddushin</i> and the presumption encompasses intent to draft the instrument on behalf of the particular parties. Rabbi Sternbuch reiterates this view in a letter addressed to Rabbi Stern that is included in the latter's <i>Seder Ketubah ke-Hilkhatah</i>, pp. 164-165. Against this thesis it may be argued that, since the scribe believes that he is writing a simple <i>ketubah</i>, that state of mind may be antithetical to intent for <i>kiddushin</i>. Moreover, the argument that the <i>ketubah</i> acquires the status of a <i>shetar kiddushin</i> because it is to be presumed that it is drafted for that purpose is cogent only with regard to a handwritten <i>ketubah</i>; in the case of a printed form there is no writer to whom intent can be imputed even constructively.
  It seems to this writer that there exists yet another problem that requires analysis. Promissory notes and the like are customarily written in the past tense despite the fact that they are prepared in advance of the assumption of any obligation. Such instruments are contrafactual at the time they are drafted in the sense that they purport to memorialize an event that has as yet not occurred. Yet witnesses are permitted to sign such documents without incurring the onus of perjury. That is so because such documents must be delivered to the person bound thereby who will not be so foolhardy as to transfer the document to the person in whose favor it is executed unless and until the event generating the obligation described therein has actually occurred. Thus, in effect, the document contains an unstated condition upon which the testimony is predicated. In effect, the instrument must be construed as containing a provision declaring that if, and only if, the document is produced by the named beneficiary, his possession of the instrument will constitute evidence that it came into his possession in consideration of the transaction specified herein.10<i class="footnote">Cf., Rabbenu Nissim, <i>Gittin</i>, 86b, s.v. <i>ve-hainu</i>.</i> Accordingly, such documents are drafted as statements of witnesses testifying to events that have already taken place because, when produced by the beneficiary, those events have indeed occurred. However, performative instruments such as a deed effecting transfer of real property or a bill of divorce are customarily written in the present tense, e.g., "my field is [hereby] sold to you" or "this is to you from me a bill of divorce." Instruments of that nature are couched in the present tense because they are designed to give effect to the sale or to the divorce and are not primarily intended as evidence of the event. Accordingly, they are drafted as performative statements of the seller or of the husband.
  The <i>ketubah</i> does indeed record the groom's declaration "Be thou my wife etc." but does so only in the form of a recitation of the fact that a marriage has already taken place, i.e., as the event that gives rise to the financial obligations recorded in that document. Accordingly, it is recited as an integral element of the testimony of the witnesses rather than as a direct declaration of the groom. Thus, the phraseology is: "Thus said so-and-so, our groom… 'Be thou my wife according to the law of Moses of Israel,' " i.e., the witnesses testify that such a statement was made. It would be anticipated that a <i>shetar kiddushin</i> should consist of a written performative declaration by the groom addressed directly to the bride. It is not clear that a document recording a statement of third parties, i.e., the witnesses, presented as testimony to a past event can serve as a <i>shetar kiddushin</i>.
  The practice of the groom himself delivering the <i>ketubah</i> to the bride is also reported by R. Shimon ben Ẓemaḥ Duran, <i>Tashbaz</i>, III, no. 301. <i>Tashbaz</i>, however, advances an entirely different reason for the practice. <i>Tashbaz</i> asserts that, according to Rif, the obligation of the "additional <i>ketubah</i>" (<i>tosefet ketubah</i>) voluntarily undertaken by the groom is not binding unless and until the <i>ketubah</i> is delivered to the bride. Rif maintains that a gift conveyed by deed is not effective until the deed is actually conveyed. <i>Tashbaz</i> asserts that the voluntary undertaking of the <i>tosefet ketubah</i> is in fact a gift and, hence, the same rule applies. However, as Rabbi Stern points out, the requirement that the instrument reach the hand of the beneficiary does not entail the further conclusion that such delivery must be in the presence of witnesses.11<i class="footnote">In his letter published in <i>Ẓohar</i> (see <i>supra</i>, note 4), Rabbi Eliashiv makes the same point with regard to <i>Tashbaẓ</i>’ statement.</i> <i>Tosafot, Gittin</i> 4a, declare that, even according to R. Eleazar, witnesses need not be present at the delivery of a deed or of a financial instrument since in all financial matters mere acknowledgment on the part of the party adversely affected suffices. That acknowledgment is evidenced by the signatures of the witnesses appended to the instrument.
  Rabbi Sternbuch, both in his <i>Teshuvot ve-Hanhagot</i> and in his letter to Rabbi Stern, advances yet another reason for seeking to have the groom himself deliver the <i>ketubah</i> to the bride in the presence of witnesses. On the basis of a discussion recorded in the Gemara, <i>Kiddushin</i> 48a, <i>Bet Yosef, Even ha-Ezer</i> 32, asserts that, in the event that a <i>shetar kiddushin</i> is found to be defective, the marriage may yet be valid on the basis of the intrinsic value of the paper upon which the <i>shetar</i> is written. Transfer of the <i>shetar</i> to the bride includes conveyance of title to the paper upon which it is drafted. The paper may thus serve as an object of value constituting <i>kesef kiddushin</i>. Accordingly, asserts Rabbi Sternbuch, in the event that a valid marriage was not previously effected by means of delivery of the ring, delivery of the <i>ketubah</i> in the presence of witnesses may also serve as a means of effecting a valid marriage on the basis of delivery of an object of value, <i>viz</i>., the paper upon which the <i>ketubah</i> is written. Since, according to this thesis, the <i>ketubah</i> does not function as a <i>shetar kiddushin</i>, but as a chattel, the document need not be drafted for purposes of marriage.
  The premise upon which this suggestion is based is the subject of some dispute. Although <i>Tosafot Rid, Kiddushin</i> 3a, expresses a view similar to that of <i>Bet Yosef</i>, Rambam, <i>Hilkhot Ishut</i> 3:4, appears to disagree.12<i class="footnote">See <i>Or Sameaḥ, ad locum</i>.</i> More significantly, there is a material difference between the <i>ketubah</i> and a <i>shetar kiddushin</i> with regard to potential capacity to function as chattel rather than as a <i>shetar</i>. Every <i>kinyan</i> requires accompanying intent of conveyance. That intent must be simultaneous with the act of <i>kinyan</i>. Thus, a person who performs an act of <i>kinyan</i> with regard to property that he erroneously believes already belongs to him does not acquire title thereby. Nevertheless, in delivering and accepting a defective <i>shetar</i>, both bride and groom intend to enter into a <i>kinyan</i> that effects a valid marriage. Accordingly, <i>Tosafot Rid</i> and <i>Bet Yosef</i> maintain that, since there was both intent for marriage and a valid <i>kinyan</i> in the form of delivery of chattel, the marriage is valid because intent and the act of <i>kinyan</i> are simultaneous. Although the intent was for the <i>kinyan</i> of <i>shetar</i>, rather than of <i>kesef</i>, those authorities maintain that there need not be intent for, or knowledge of, the particular <i>kinyan</i> that is efficacious. However, in the case of a defect in the delivery of a ring, the bride and groom, who are unaware of the defect, assume that they are already married. Accordingly, at the time of subsequent delivery of the <i>ketubah</i>, they have no reason to intend a new <i>kinyan</i>. Hence, since there is no intent for <i>kinyan</i> that is simultaneous with delivery of the paper upon which the <i>ketubah</i> is written, the conveyance of that paper fails as <i>kesef kiddushin</i>.
  Even if the practice of the groom personally transmitting the <i>ketubah</i> to the bride serves no purpose, it might well be regarded as innocuous. That, however, is not the case. In a letter addressed to Rabbi Stern and published in his <i>Seder Ketubah ke-Hilkhatah</i>, p. 181, Rabbi Nathan Gestetner points out that immediately following the delivery of the ring the couple are man and wife. Accordingly, if the bride is a <i>niddah</i>, the restrictions against handing objects to one another become effective immediately. In such instances, those strictures would serve to prohibit the groom from delivering the <i>ketubah</i> to the bride. Assuredly, it is unseemly publicly to call attention to the status of the bride by insisting that some grooms deliver the <i>ketubah</i> to the bride while insisting that others do not.13<i class="footnote">Cf., however, the comments of Maharil cited by R. Jacob Ettlinger, <i>Teshuvot Binyan Ẓion</i>, no. 139.</i>
  II. Writing "Ve-Kanina" before Kinyan Takes Place
  The obligations recorded in the marriage contract, including the "additional <i>ketubah</i>" and the financial obligation for repayment of the <i>nedunya</i> or dowry, i.e., the funds and chattel brought to the marriage by the bride, are entered into by the groom by acceptance of a kerchief (<i>sudar</i>) presented to him on behalf of the bride. There are three distinct customs with regard to the execution of that <i>kinyan</i>: 1) The practice described as the "custom of Jerusalem" is for the <i>kinyan</i> to take place during the reading of the <i>ketubah</i> under the nuptial canopy during the course of the public reading of the document.14<i class="footnote">See R. Menachem Mendel Fakshar, <i>Invei ha-Gefen</i> (Jerusalem, 5745), I, 5:15. Cf., sources cited by R. Benjamin Adler, <i>Ha-Nisu’in ke-Hilkhatam</i> (Jerusalem, 5745), I, 11:164, notes 430–431.</i> According to that practice, the text of the <i>ketubah</i> is read and upon reaching the word "<i>ve-kanina</i>" (we have entered into a <i>kinyan</i>) the reading is interrupted, a kerchief is presented to the groom and the witnesses affix their signatures to the document15<i class="footnote">R. Ya’akov Werdiger, <i>Edut le-Yisra’el</i> (Tel Aviv, 5737), p. 12, reports that the custom in Jerusalem is to present the kerchief to the groom upon reaching the word “<i>ve-kanina</i>” and for the witnesses to sign the <i>ketubah</i> upon the conclusion of the wedding ceremony.</i> and only then is the reading of the <i>ketubah</i> resumed.16<i class="footnote">It seems appropriate to assume that the <i>kinyan</i> and signing take place before the reading of the word “<i>ve-kanina</i>” and the sources in which the practice is recorded are readily construed as reflecting that understanding. Indeed, <i>Invei ha-Gefen</i>, I, 5:15 reports that the custom in Jerusalem is to enter into the <i>kinyan</i> before the reading of the word “<i>ve-kanina</i>.” Nevertheless, R. Eliyahu Chaim Bar-Shalom, <i>Mishpat ha-Ketubah</i> (Jerusalem, 5758), I, 169, reports that it is the Sephardic practice to read the phrase “<i>ve-kanina min he-ḥatan</i>” before interrupting for the <i>kinyan</i>. R. Ya’akov Sha’ul Elishar, <i>Teshuvot Simḥah le-Ish</i>, <i>Even ha-Ezer</i>, p. 55b, somewhat ambiguously reports that it is the “custom of Jerusalem” to enter into the <i>kinyan</i> “at the end of the reading” of the <i>ketubah</i>.</i> A variant practice is to execute the <i>kinyan</i> and sign the document at the conclusion of the ceremony, i.e., after the final blessing has been pronounced.17<i class="footnote">Cf., however, <i>Shulḥan ha-Ezer</i> 6:8, who, in effect, objects to this practice on the basis of the view that maintains that <i>ḥuppah</i> cannot take place so long as there exists any impediment to cohabitation. Absence of a <i>ketubah</i> constitutes an impediment to cohabitation.It would appear that this practice is predicated upon the statement of Rambam, <i>Hilkhot Ishut</i> 10:7, who declares that “the <i>ketubah</i> should be written before entry into <i>ḥuppah</i>” and whose position, as recorded in <i>Hilkhot Ishut</i> 1:6, is that seclusion of the bride and groom after pronouncement of the nuptial blessings constitutes <i>ḥuppah</i>. Cf., <i>Edut le-Yisra’el</i>, p. 13.</i> The prevalent custom, however, is to enter into the <i>kinyan</i> and to complete the drafting of the <i>ketubah</i> before commencement of the marriage ceremony. That practice is recorded by <i>Mordekhai, Gittin</i>, chap. 2, sec. 342; <i>Teshuvot Maharam Minz</i>, no. 109; and by <i>Teshuvot Maharil</i>, no. 13.18<i class="footnote">For a further discussion of these variant practices see R. Samuel Eliezer Stern, <i>Seder Ketubah ke-Hilkhatah</i>, pp. 71–80. Rabbi Stern quotes R. Samuel ha-Levi Woszner as expressing a preference for executing the <i>ketubah</i> before the wedding ceremony when the procedure may be done in a leisurely manner lest an irregularity occur if done in haste under the <i>ḥuppah</i>.</i>
  Many printed forms of the <i>ketubah</i> omit the word <i>"ve-kanina."</i> Others print the word but with an imperfectly formed <i>kuf</i>, i.e., without the stroke that forms the left portion of the letter, so that it may be inserted, and hence the word become cognitive, after the <i>kinyan</i> is actually performed. The concern reflected in this practice is "the appearance of a falsehood" (<i>meḥazi ke-shikra</i>), i.e., preparation of a statement declaring that <i>kinyan</i> has taken place at a time, when in fact it has not occurred, appears to be untruthful.19<i class="footnote">Since the <i>kinyan</i> is indeed executed prior to the signing of the document, the issue is only the appearance of untruthfulness. However, if <i>kinyan</i> is not executed before the witnesses append their signatures, R. Meir Arak, <i>Minḥat Pittim</i>, no. 67, rules that, since the <i>kinyan</i> is the essence of the document, the document is invalid.</i>
  The earliest explicit reference to this matter appears to be in the work of a fifteenth-century German authority, <i>Teshuvot Maharam Minz</i>, no. 109. <i>Maharam Minz</i> records that, properly speaking, not only should the <i>ketubah</i> be signed after delivery of the ring, but he further states that the words <i>"ha-kol sharir ve-kayyam"</i> (and everything is valid and confirmed), which constitute the last line of the <i>ketubah</i>, should not be written until after the ring has been presented by the groom to the bride since "to write the entire <i>ketubah</i> before the <i>kinyan</i> and before she has become his wife appears to be a falsehood (<i>meḥazi ke-shikra</i>)."20<i class="footnote">A similar observation with regard to writing the <i>ketubah</i> before executing the <i>kinyan</i> and before the wedding has been solemnized is made by R. Mordecai Jaffe, <i>Levush, Even ha-Ezer</i> 66:10.</i> <i>Maharam Minz</i> regards completion of the <i>ketubah</i> as "appearing untruthful" for two reasons: 1) The bride is not yet a wife as is recited in the <i>ketubah</i>; 2) <i>kinyan</i> has not yet occurred. It is apparent that <i>Maharam Minz</i> was not specifically concerned with the writing of the word "<i>ve-kanina</i>." <i>Maharam Minz</i> apparently maintains so long as some part of the document is left incomplete there is no "appearance of falsehood" with regard to the obligations recited in that document. <i>Maharam Minz</i> himself concedes that the "majority of people" ignore this consideration and draft the <i>ketubah</i> before the ceremony. He suggests that they do so because weddings were customarily celebrated on Friday afternoon and there was reason to fear that the ceremony might be delayed until close to the onset of <i>Shabbat</i>. R. Ya'akov Yitzchak Newman, in comments published in <i>Seder Ketubah ke-Hilkhatah</i>, p. 171, observes that there may well be reason to ignore the "appearance of falsehood" with regard to the marital status of the bride since that could be corrected only by executing the <i>ketubah</i> after the marriage has already taken place, at which time there is cogent reason to be concerned that in the course of the festivities the matter may be overlooked. There is, however, no similar reason to ignore the "appearance of falsehood" with regard to the writing of the word "<i>ve-kanina</i>" and hence that word should preferably be written only after the <i>kinyan</i> is actually executed.
  The fifteenth-century German authority, R. Israel Bruna, <i>Teshuvot Mahari Bruna</i>, no. 94, peremptorily dismisses the concerns raised by <i>Maharam Minz</i> on three grounds: 1) Documents designed to serve as evidence may be prepared in advance of the event memorialized. Thus, a promissory note may be prepared at the behest of the putative debtor and delivered to him in advance of the extension of a loan. 2) Moreover, a bill of divorce contains language declaring a woman to be free of the marital bonds and permitted to every man despite the fact that the divorce is of no effect until she receives the document. As explained in another context by Rabbenu Nissim, <i>Gittin</i> 86b, it is self-understood that the statements contained in such instruments are contrafactual in nature and designed to certify those matters to be true only when and if the instrument has passed into the possession of the named recipient.21<i class="footnote">See <i>supra</i>, note 9 and accompanying text.</i> 3) The concluding statement of the relevant discussion of the Gemara, <i>Ketubot</i> 85a and <i>Gittin</i> 26b, is that, as a halakhic norm, we are not concerned (<i>lo-ḥaishinan</i>) with the appearance of untruthfulness. According to <i>Mahari Bruna</i> there is no objection whatsoever to completing the entire document and having the witnesses affix their signatures provided that <i>kinyan</i> is executed before the <i>ketubah</i> is presented to the bride.
  The practice of writing the word "<i>ve-kanina</i>" before <i>kinyan</i> is actually executed is also recorded by R. Shimon ben Ẓemaḥ Duran, <i>Tashbaz</i>, III, no. 301, who remarks that the practice is perfectly acceptable so long as the <i>kinyan</i> is performed before the witnesses affix their signatures. Ritva, <i>Ketubot</i> 85a, similarly states that any document may be drafted before the events recited therein have occurred. Ritva adds that it is the "appearance of falsehood" in the writing of an instrument that is dismissed by the Gemara as being of no halakhic concern but that signing such a document renders it invalid for reasons of actual falsehood. In context, however, Ritva's statement refers to a declaration made by a <i>Bet Din</i>. Ritva's statement clearly does not apply to a promissory note or to a bill of divorce and hence may also not apply to a <i>ketubah</i>. Nevertheless, Rema, <i>Even ha-Ezer</i> 66:1, cites conflicting views with regard to whether or not it is proper for witnesses to sign the <i>ketubah</i> prior to actual execution of the <i>kinyan</i>. The permissive view is cited in the name of <i>Mordekhai, Gittin</i>, chap. 2, sec. 342, who does not offer an explanation similar to that of <i>Mahari Bruna</i> but states that since the parties "are engaging in that matter" there is no appearance of falsehood.22<i class="footnote">See <i>Ḥelkat Meḥokek, Even ha-Ezer</i> 66:9; <i>Bi’ur ha-Gra, Even ha-Ezer</i> 66:9; and <i>Naḥalat Shivah</i> 12:69.</i>
  The talmudic discussions presented in <i>Ketubot</i> 21b and 85a as well as in <i>Gittin</i> 26b focus upon the authentication of signatures by the <i>Bet Din</i>. A litigant has the power to challenge the validity of an instrument presented as evidence by alleging forgery and challenging the authenticity of the witnesses' signatures. That possibility can be obviated by the witnesses themselves appearing before <i>Bet Din</i> and acknowledging their signatures or by the <i>Bet Din</i> itself comparing the signatures of the witnesses with signatures on other documents already known to be authentic. The <i>Bet Din</i> then appends and signs an endorsement certifying the authenticity of the signatures. According to the vast majority of rabbinic scholars, the issue in the talmudic discussion is the propriety of the <i>Bet Din</i> writing the text of the endorsement in anticipation of hearing the relevant testimony but withholding their signatures until such testimony has been presented and accepted. The issue is the propriety of the <i>Bet Din</i> committing a matter to writing that gives rise to an "appearance of falsehood," and whether, if improperly committed to writing, such authentication should be recognized. Shulḥan Arukh, Hoshen Mishpat 46:24, records conflicting opinions regarding the matter. The authorities cited differ in their assessment of the conclusion actually recorded in the talmudic discussions.
  However, <i>Shakh, Hoshen Mishpat</i> 46:59 and <i>Hoshen Mishpat</i> 39:38, advances a quite different view of the controversy recorded in <i>Shulḥan Arukh</i>. According to <i>Shakh</i>, there is no dispute at all with regard to the writing of the endorsement by the <i>Bet Din</i> prior to hearing testimony. The dispute, according to <i>Shakh</i>, is with regard to whether the certification may be signed in advance and the document retained by the <i>Bet Din</i> until the authenticating evidence is presented. According to <i>Shakh</i>, no authority entertains the notion that an unsigned writing can be construed as a falsehood.23<i class="footnote">However, <i>Shakh, Ḥoshen Mishpat</i> 48:1, rules in accordance with the view of Rashi that, even in a promissory note, the names of the lender and borrower, the date and the sum of the loan may not be filled in in advance. Rashi asserts that recording such matters in anticipation of the transaction is prohibited by rabbinic decree because, were similar information written by a scribe in anticipation of utilizing the document as a bill of divorce, the divorce would be invalid by virtue of biblical law. If so, it might seem that, even according to <i>Shakh</i>, that information may not be inserted in the <i>ketubah</i> before the <i>kinyan</i>. See <i>Shulḥan ha-Ezer</i> 6:8. <i>Shakh</i>’s comments are, however, not at all relevant to the writing of <i>ve-kanina</i>. Moreover, <i>Tumim</i> 48:1, <i>Netivot ha-Mishpat</i> 48:1 and <i>Arukh ha-Shulḥan, Ḥoshen Mishpat</i> 48:1, rule <i>contra</i> the position of <i>Shakh</i>. See also <i>Iggerot Mosheh, Even ha-Ezer</i>, I, no. 178, who totally ignores <i>Shakh</i>’s position. Moreover, <i>Netivot ha-Mishpat</i> comments that, even according to <i>Shakh</i>, such information may be recorded in advance with the knowledge and acquiescence of the borrower, presumably since a bill of divorce drafted with the knowledge of the husband is obviously valid. Hence, even according to <i>Shakh</i>, those spaces may be filled in with the acquiescence of the groom prior to entering into <i>kinyan</i>. Cf., R. Samuel ha-Levi Woszner who, in a letter published in <i>Seder Ketubah ke-Hilkhatah</i>, p. 154, and R. Moshe Greineman, <i>Imrei Yosher, likkutim</i>, no. 20, surprisingly seem to assume that Rashi and <i>Shakh</i> were concerned with “appearance of falsehood.” That is not the case and, were it to be so, would be contradicted by <i>Shakh</i>’s own statements in Ḥoshen Mishpat 39:38 and 46:59. See R. Benjamin Silber, <i>Oz Nidberu</i>, IX, no. 56, and <i>Mishpat ha-Ketubah</i>, I, 170.</i>
  All authorities agree that the normative rule is in accordance with the first opinion cited by <i>Shulḥan Arukh, viz</i>., the position that the "appearance of falsehood" is not a matter of concern. Thus, for most commentators, the writing may be prepared by the <i>Bet Din</i>—albeit it may not be signed—before testimony is heard while, according to <i>Shakh</i>, the document may even be signed in advance. Moreover, virtually all authorities agree that the controversy regarding concern over the "appearance of falsehood" is limited to documents issued by a <i>Bet Din</i>. A <i>Bet Din</i> is duty bound to avoid any taint of unscrupulousness in order not to bring disrespect upon the judiciary whereas private individuals are under no such constraint.
  The sole authority who expresses a different view is R. Issac of Dampierre recorded in <i>Tosafot, Ketubot</i> 21b. That authority draws no distinction between writings of a <i>Bet Din</i> and writings of a private individual and rules that it is forbidden to draft such documents although, if drafted, such documents are valid. However, <i>Tosafot, Gittin</i> 26a, s.v. R. Eleazar, indicates that, if there is indeed a concern for the "appearance of falsehood," the names of the borrower and lender, the date and amount of the obligation may not be written until the obligation is actually assumed. Thus, if, in deference to the opinion of R. Issac of Dampierre, "<i>ve-kanina</i>" were to be omitted until <i>kinyan</i> is actually performed, it would also be necessary to delay filling in the names of the bride and groom, the date and the amount of the obligation.
  It is thus not at all surprising that a number of contemporary scholars, including R. Benjamin Silber, <i>Oz Nidberu</i>, IX, no. 56, and R. Samuel Eliezer Stern, <i>Seder Ketubah ke-Hilkhatah</i>, p. 172, see no reason to delay writing the word "<i>ve-kanina</i>" until after <i>kinyan</i> is executed. R. Samuel ha-Levi Woszner, <i>Seder Ketubah ke-Hilkhatah</i>, p. 154, regards the practice of omitting the word to represent, at best, "an enhancement and stringency," whereas Rabbi Stern prefers that the word "<i>ve-kanina</i>" be incorporated in the printed forms in order to minimize the potential for inadvertent omissions or error.24<i class="footnote">R. Joseph Shalom Eliashiv, in a letter appearing in <i>Koveẓ al Yad</i>, no. 10, notes that omission of the word “<i>ve-kanina</i>” does not invalidate the <i>ketubah</i> since <i>kinyan</i> itself is not an absolute requirement. See Rema, <i>Even ha-Ezer</i>, 66:1 and <i>Bi’ur ha-Gra, Even ha-Ezer</i> 66:9. Rabbi Eliashiv further opines that the words “The groom has accepted upon himself etc.” constitute acknowledgment of <i>kinyan</i> and, moreover, <i>Shulḥan Arukh, Even ha-Ezer</i> 66:8, rules that the marriage itself binds the groom to all orally stipulated undertakings. It should, however, be noted that R. Shlomoh Kluger, <i>Ha-Elef Lekha Shlomoh</i>, no. 139, states that omission of <i>kinyan</i> serves to invalidate the <i>ketubah</i> because of lack of reliance on the part of the bride.Conversely, R. Meir Arak, <i>Minḥat Pittim, Even ha-Ezer</i>, no. 66, citing Rema mi-Panu, rules that, if “<i>ve-kanina</i>” is written but <i>kinyan</i> is not actually performed, the <i>ketubah</i> is invalid. That ruling is somewhat problematic since, according to <i>Shulḥan Arukh</i>, <i>Even ha-Ezer</i> 66:8, <i>kinyan</i> is not necessary and hence recitation of <i>kinyan</i>, even if it did not take place, should be innocuous. Although Rema, in a gloss appended to that ruling, does state that “some disagree” and require <i>kinyan</i>, <i>Ḥelkat Meḥokek</i> 66:34 reports that he could not identify the source of this divergent opinion. See also <i>Bi’ur ha-Gra, Even ha-Ezer</i> 66:31. [In point of fact, <i>Teshuvot Rema mi-Panu</i>, no. 65, states only that a <i>ketubah</i> prepared and dated during the day that includes the word “<i>ve-kanina</i>” but with actual <i>kinyan</i> delayed until nightfall is invalid by virtue of the obvious predating of the instrument.] R. Nissim Karelitz explains that, absent the word “<i>ve-kanina</i>,” the <i>ketubah</i> generates a lien against all property only from the end of the day on which it is signed whereas, if <i>kinyan</i> is undertaken and recorded in the instrument, the lien is generated as of the moment that the witnesses affix their signatures. Thus, false recitation of <i>kinyan</i> may lead to unlawful execution of the <i>ketubah</i> against the successor to title who purchases real property from the groom after execution of the <i>ketubah</i> but before the end of the day. See <i>Mishpat ha-Ketubah</i>, II, 461.R. Judah Kelemer, <i>Tosefet Ketubah</i> (Jerusalem, 5750), p. 60, suggests another reason for entering into <i>kinyan</i> with regard to the <i>ketubah</i>. According to the regulations formulated by the Sages of the Talmud, a woman may attach only real property for satisfaction of the sum stipulated by the <i>ketubah</i>. The right to seize chattel for payment of the <i>ketubah</i> arises from a later edict promulgated by the Ge’onim. Nevertheless, Rambam, <i>Hilkhot Ishut</i> 16:8, declares that that right cannot be exercised unless is is recited in the <i>ketubah</i>. Rabbi Kelemer argues that, since chattel cannot be conveyed by deed, <i>kinyan</i> is necessary in order to convey a lien against chattel. Accordingly, it might be argued that since, in the absence of <i>kinyan</i>, no lien against chattel is created, recitation in the <i>ketubah</i> of <i>kinyan</i> that has not been effected would create a fraudulent lien against chattel.However, such a conclusion would be widely disputed. Many authorities maintain that, with the undisputed acceptance of the edict of the Ge’onim subsequent to the time of Rambam, no specific understanding is required in order to generate a lien against chattel. Others maintain that, in our day, since commercial dealings are commonly in chattel, chattel, for us, has the same status as real property did in the days of the Gemara and, hence, even absent the edict of the Ge’onim, the <i>ketubah</i> is actionable against chattel. See <i>Bet Shmu’el, Even ha-Ezer</i> 100:1.</i>
  
  Chapter XI Insurance Related Questions
  
  <i>Let man not say, "I will eat, I will drink, I will enjoy the good and not trouble myself and Heaven will be merciful."</i>
  MIDRASH TANHUMA, VA-YEẒEI 13
  I. Double Compensation for a Single Loss
  1. The Question
  One of the many issues surveyed by Rabbi Menachem Slae in his valuable work dealing with insurance-related questions, <i>Ha-Bituaḥ be-Halakhah</i> (Tel Aviv, 5740), is whether or not an individual who is insured against loss in case of fire or the like is also entitled to compensation from the person who has destroyed or damaged his property. Actually, the question arises in at least four distinct contexts:
  1) The least complex question pertains to situations in which coverage is in the form of liability insurance. Liability insurance, as its name suggests, is payable precisely because the insured is indeed liable; the insurance company does no more than pay the obligation incurred by the insured. Liability insurance for motor vehicle accidents is the most familiar, but by no means the only, form of insurance of this genre. Whether the insurance company pays the claimant directly or reimburses the insured for damages charged to him is immaterial. In either event, the insurance is designed to obviate financial loss to the insured. Accordingly, even when the insurance company pays the claimant directly it does so on behalf of the insured with the result that the injured party has no further claim upon the insured. There is indeed no discussion in rabbinic literature of the right of a victim of a tort who has been compensated for his loss by the tortfeasor's liability carrier to seek additional indemnification from the tortfeasor himself. Presumably, the answer is too obvious to merit discussion in rabbinic sources.
  2) A similar question—but one to which the answer is far less obvious—arises with regard to insurance designed to indemnify against loss of property, e.g., fire insurance or automobile collision (as distinct from liability) insurance. Insurance of such nature is designed to indemnify the insured for loss of property and is usually payable even though some other party may be at fault. Generally, when another person is at fault, e.g., when loss results from an automobile accident attributable to the negligence of the other driver, the insured will be able to demand payment from his own insurance company on the basis of his own collision coverage and, on the basis of a right of subrogation, the insurance company acquires the right to seek reimbursement from the negligent party.1<i class="footnote">Even in the absence of a contractual provision or legislative act that explicitly sets forth a right of subrogation, an insurer may be entitled to seek subrogation on the basis of a judicially created right. The principle of “legal subrogation” is born of two considerations: 1) Benefits received by a claimant from sources independent of a wrongdoer do not diminish the liability of a wrongdoer; and 2) possible social detriment that may arise if the insured is permitted more than full indemnification. See Robert E. Keeton and Alan I. Widiss, <i>Insurance Law: A Guide to Fundamental Principles, Legal Doctrines, and Commercial Practices</i> (St. Paul, 1988), p. 220.</i> The insurance company, in effect, sues on the claim of its insured who, in return for immediate compensation, is deemed by operation of law to have assigned his interest in the claim to the insurance company.2<i class="footnote">Under the rules of common law the claim must be asserted in the name of the insured. In a court of equity or under some state codes the claim may be asserted by the insurer in his own name. See William R. Vance and Buist M. Anderson, <i>Vance on Insurance</i>, 3rd ed. (St. Paul, 1951), p. 792.</i> Although the insured has direct recourse against his own insurance company, in situations in which fault lies with another party the role of the carrier is essentially that of a surety who assumes primary responsibility in guaranteeing that the insured will suffer no loss. That role is analogous to the function of an <i>arev kablan</i> in Jewish law. Assuming, however, that, for some technical reason, the insurance company does not enjoy the right of subrogation or that it chooses not to pursue its claim, does Halakhah recognize the right of the injured party who has already been compensated by his own insurance company to claim tort damages from the tortfeasor as well? Or, to put the matter a bit differently, can the victim maintain a claim against the tortfeasor who has caused him harm and contend that any claim the insurance company may have with regard to funds paid by the tortfeasor to the victim by virtue of a right of subrogation is strictly between the victim himself and the insurance company and hence of no concern to the tortfeasor? Or, since the victim has already received insurance compensation to redress his loss, can the tortfeasor disclaim liability on the grounds that there remains no out of pocket loss to the victim? It is this question which has captured the attention of rabbinic scholars.
  3) A similar question arises with regard to the liability of a bailee in a situation in which the bailor has insured his property against the loss for which the bailee is ordinarily responsible. May the bailor recover his loss from the bailee or can the bailee claim that since compensation has been paid by the insurance company there is, in fact, no loss?
  4) A closely related yet somewhat different question arises with regard to an accident victim who accepts reimbursement for medical expenses on the basis of a health-care policy and also claims reimbursement for the same costs from the person responsible for causing the injury.3<i class="footnote">The right of the beneficiary of a life insurance policy also to recover damages for wrongful death is not enumerated as a separate issue because life insurance is in the nature of an investment (with an element of statistical opportunity for a windfall profit) rather than as compensation for a loss. The same is true with regard to accident insurance in which the amount payable by the insurer is fixed by the terms of the contract rather than by assessment of the actual loss suffered by the insured. See <i>Vance on Insurance</i>, pp. 796–797 and Keeton and Widiss, pp. 227–228.</i> Such a situation is different from one involving duplicate claims for property damage in that, typically, under the terms of the insurance contract and applicable secular law, there is no subrogation with regard to health-care claims and it is entirely legal for the claimant to collect twice.4<i class="footnote">Courts have generally regarded medical coverage as a form of “personal insurance.” Personal insurance is regarded as a form of investment imposing on the insurer an absolute duty to pay if the named condition occurs rather than as a contract of indemnity. As a result, courts have not recognized implied rights of subrogation in the area of personal insurance. See, for example, <i>Frost</i> v. <i>Porter Leasing Corp.</i>, 386 Mass. 425, 436 N.E.2d 387 (1982) and <i>Rixmann</i> v. <i>Somerset Public Schools, St. Croix County</i>, 83 Wis.2d 571, 266 N.W.2d 326 (1978). Cf., however, Spencer L. Kimball and Don A. Davis, “The Extension of Insurance Subrogation,” <i>Michigan Law Review</i>, vol. 60, no. 7 (May, 1962), pp. 860–868 and John G. Fleming, “The Collateral Source Rule and Loss Allocation in Tort Law,” <i>California Law Review</i>, vol. 54, no. 4 (October, 1966), pp. 1481–1484. Other courts have argued that subrogation arises only in favor of one who pays the debt of another but not in favor of one who pays a debt in performance of his own covenants and hence, the right of subrogation does not follow an actual primary liability. Accordingly, since medical coverage is purchased with the understanding that such care will be furnished whenever needed, the insurance company has a primary obligation to provide service in accordance with the terms of its contract. See <i>Michigan Hospital Service</i> v. <i>Sharpe</i>, 339 Mich. 357, p. 373, 63 N.W.2d 638, p. 641 (1954). Implicit in these decisions is the notion that the public policy concerns that give rise to the principle of legal subrogation are not compelling in the case of medical insurance. Thus, in <i>Frost</i> the court wrote that “isolation of medical expenses is artificial, and the accident victim’s position should be viewed as a whole…. When the insured’s losses are viewed in their entirety, duplicative compensation is both uncertain and unlikely.” See <i>Frost</i>, 386 Mass. at 430, 436 N.W.2d at 390–391. See also William F. Meyer, <i>Life and Health Insurance Law</i> (Rochester, 1972), pp. 603–607.Moreover, some courts have held express subrogation provisions in medical and hospitalization policies to be invalid because of statutory or common law prohibitions against assignment of causes of action for personal injuries. See Keeton &amp; Widiss, pp. 229–231.</i> Does Halakhah similarly recognize such a right? The question also arises in a variant form in the case of a person covered by duplicate health-care policies neither of which contains a provision for coordination of benefits. May the insured legitimately submit duplicate claims to both insurance companies?
  2. The Conflicting Rulings
  The various responsa dealing with the question of double compensation for a single loss are devoted to a discussion of situations involving loss due to fire. A person causes a fire that destroys a house covered by fire insurance. Upon securing payment from his insurance company, the homeowner seeks identical damages from the person responsible for setting the fire. R. Aryeh Leibush Horowitz, <i>Harei Besamim, Mahadura Tinyana</i>, no. 245, and R. Chaim Wollstein, <i>Teshuvot Divrei Hayyim</i>, no. 49, both rule that the victim is not entitled to further compensation. In effect, those authorities argue that since, according to the terms of the insurance policy, the homeowner is compensated for fire damage, the person who set the fire has caused the homeowner no actual loss. Hence they conclude that, as between the homeowner and the tortfeasor, the homeowner has no claim. However, <i>Harei Besamim</i> observes that, if the insurance company and the insured negotiate a settlement representing less than the actual damages, the homeowner may properly seek recovery of the balance from the person who set the fire.
  A diametrically opposed view is expressed by R. Shalom Mordecai Schwadron, <i>Teshuvot Maharsham</i>, IV, no. 7, with regard to a case of arson in which the property owner's loss was covered by insurance. In what is apparently an attempt to dispel the contention that the property owner has suffered no out of pocket loss, Maharsham remarks that "… at the time that he burned the house he became liable for compensation. And if the householder profited in accepting insurance what [import] is there to [the arsonist] in this?" Maharsham adds that since arson is a crime and moreover (as Maharsham correctly or incorrectly believed), since failure to inform the authorities of the identity of the arsonist is itself a culpable offense, it is clear that the insurance company did not intend its payment to be construed as being proffered on behalf of the arsonist. In terms of contemporary practice, it is perfectly clear that the insurance company does not intend its payment to exonerate even a merely negligent person who has committed no crime. Indeed, the insurance company will generally seek recovery from the tortfeasor. Maharsham's crucial point is that the tortious act did indeed cause financial loss in its commission; subsequent compensation by a third party does not nullify an already existing obligation unless such payment is proffered on behalf of the primary obligee.5<i class="footnote">See also R. Abraham David Horowitz, <i>Teshuvot Kinyan Torah be-Halakhah</i>, V (Jerusalem, 5748), no. 154.</i>
  In a further comment Maharsham offers a somewhat different perspective in arguing that logic (<i>sevarah</i>) dictates that there is nothing to prevent the insured from retaining the right to proceed against the person who set the fire. Maharsham categorizes an insurance policy as a commercial enterprise (<i>misḥar</i>) and hence he depicts the insurance proceeds as the profit of a commercial enterprise.6<i class="footnote">The matter is similarly described by R. Zevi Pesach Frank, <i>Ha-Pardes</i>, Tevet 5719. This material is reprinted with additions in Rabbi Frank’s commentary on <i>Tur Shulḥan Arukh, Har Ẓevi, Ḥoshen Mishpat</i> 238. That commentary is published as an appendix to the <i>El ha-Mekorot</i> edition of <i>Tur Shulḥan Arukh</i> (Jerusalem, 5718).</i> Accordingly, contends Maharsham, no one other than the homeowner is entitled to share in the proceeds of that enterprise.
  Moreover, contends Maharsham, the owner of the property certainly has standing to sue the arsonist even if the property owner must turn over any recovery for damages to the insurance company. Shulḥan Arukh, Hoshen Mishpat 294:6, records a similar rule with regard to a bailee. A gratuitous bailer who pleads that the bailment was stolen is required to substantiate his plea by taking an oath, but is not held liable. Nevertheless, if the thief is discovered, the bailer may sue the thief and the latter cannot challenge the bailer's standing to sue on the grounds that the bailee, who has already taken an oath and has been exonerated, does not stand to suffer any loss. Similarly, argues Maharsham, the victim of the fire has standing to sue the arsonist. Disposal of any recovery is then a matter entirely between the insured and his insurance company.7<i class="footnote">Cf., R. Zevi Pesach Frank, <i>Har Ẓevi</i>, Ḥoshen Mishpat 238, s.v. <i>od yesh la-dun</i>, who fails to take notice of this point.A further issue that must be addressed is whether the insurance company is also entitled to claim damages from the tortfeasor in the event that it cannot recover its payment to the insured. See R. Aryeh Leib Baron, <i>Ha-Pardes</i>, Iyar 5719, reprinted in <i>idem, Birkat Yehudah</i> (New York, 5721), no. 20, who considers the possibility of the tortfeasor’s liability to the insurance company on the basis of <i>garmi</i>, i.e., loss that is definite and certain, albeit indirect. This writer is at a loss to understand how the loss in question can be considered certain and definite since payment by the tortfeasor to the insured serves to relieve the insurance company of any liability. Thus, in setting the fire, it is not at all clear that the tortfeasor has performed an act as a result of which the insurance company will suffer any loss since, if a claim is first made by the victim against the tortfeasor or if the insurance company is later able to recoup its payment from the insured, there is no loss to the insurance company.</i>
  3. An Analytic Examination
  The conflicting opinions of <i>Harei Besamim</i> and Maharsham with regard to what was certainly a novel question were disseminated at roughly the same time. That disagreement elicited a response by R. Yo'av Yehoshu'a Weingarten of Kintzk (Konskie), renowned in rabbinic circles as the author of <i>Helkat Yo'av</i>. That response appeared in one of the leading Torah journals of the day, <i>Sha'arei Torah</i>, vol. IX, no. 5 (Adar 5678).8<i class="footnote">All issues of <i>Sha‘arei Torah</i>, originally published in Warsaw, were reprinted New York, 5724, in five volumes by E. Grossman’s Publishing House. The article cited herein appears in that edition, V, 71–72.</i>
  The author of <i>Helkat Yo'av</i> asserts that neither of his predecessors had properly defined the focal issue. Incisively, he notes that the nature of tort damages must be examined in an analytic manner. Are such damages designed to redress the damage in order to make the victim whole? Or is liability simply a consequence of the tortious act?9<i class="footnote">If so, liability is presumably a form of punishment and the damages may be either compensatory and punitive at one and the same time or, in the absence of actual loss, merely punitive. For a brief argument demonstrating that torts are not merely actionable but that tortious acts are biblically forbidden see <i>Ḥiddushei R. Ḥayyim ha-Levi al ha-Shas</i> (<i>mi-Pi ha-Shemu‘ah</i>) (1953), p. 85; <i>Ḥiddushei ha-Graḥ</i> (bound stencil, n.d.), p. 226; and <i>Ḥiddushei ha-Graḥ al ha-Shas</i> (Jersualem, 5729), pp. 170–171. Rabbenu Yonah, commentary on <i>Avot</i> 1:1, regards the prohibition as subsumed in the prohibition against theft. <i>Yad Ramah</i>, <i>Bava Batra</i> 26a, declares that causing pecuniary damage to another is prohibited by virtue of “You shall love your neighbor as yourself” (Leviticus 19:18) and the commandment “You shall not place a stumbling-block before the blind” (Leviticus 19:14). See also <i>Teshuvot ha-Rosh</i>, no. 108; <i>Bi’ur ha-Gra</i>, Ḥoshen Mishpat 155:8; <i>Teshuvot Ḥatam Sofer, Ḥoshen Mishpat</i>, no. 261; <i>Birkat Shmu’el, Bava Kamma</i>, no. 2; and <i>Kehillot Ya‘akov</i>, <i>Bava Kamma</i>, no. 1.</i> (Although, to be sure, if no damage occurs, there is no tort and hence no liability. As will be shown, the crucial difference is in a case of damage to the pecuniary value of an object but no resultant loss to the owner.)
  R. Yo'av Yehoshu'a of Kintzk marshals significant evidence demonstrating that damage to the object, not loss to the owner, is the crucial factor in establishing tort liability.10<i class="footnote">Apart from its application in the insurance dilemma, R. Yo’av Yehoshu’a presents another hypothetical question whose resolution depends upon which theory is correct. Imagine the following fact pattern: A Jew borrows money from a non-Jew against a pledge. The non-Jew deposits the pledge with a third party, a Jew. The Jew holding the pledge loses it. Assume that under applicable civil law the Jew with whom the pledge has been deposited has no liability to the bailor but would not be exonerated under Jewish law. The Jewish debtor need not repay his loan to the non-Jewish creditor since his pledge will not be returned. Thus, non-return of the pledge has caused him no out of pocket financial loss. Does the Jewish owner of the pledged item have a claim against the Jew with whom it was subsequently deposited? In this situation as well, an object of value has been lost but the owner suffers no out of pocket loss as a result.</i> The Gemara, <i>Bava Kamma</i> 26b, discusses the question of liability of a tortfeasor who breaks a vessel in the course of its fall from a roof. The considerations formulated by the Gemara in its analysis of both sides of the question are extraneous to this discussion. Of significance is the fact that the situation that is the subject of that analysis involves damage to chattel but, since the vessel would in any event have shattered upon landing, the tortfeasor causes no loss to the owner. The fact that the Gemara considers the issue of liability in such circumstances and analyzes the matter on the basis of other considerations indicates that loss to the owner is not a necessary condition of liability.
  That principle also underlies a question posed by the Gemara, <i>Bava Mezi'a</i> 34a. A bailee whose bailment has been stolen from him and who has been exonerated by his oath to that effect is treated by Halakhah as the owner of the bailment and hence, if the thief is apprehended, the bailee is entitled to receive the fine levied upon the thief.11<i class="footnote">This principle was cited by R. Zevi Pesach Frank to explain a ruling that seemingly contradicts the thesis herein cited. <i>Shitah Mekubbeẓet, Bava Kamma</i> 14a, rules that if a cow is gored as a result of negligence on the part of the bailee, the bailee is liable but may recover damages from the owner of the goring ox. On the theory that a person need not suffer out of pocket loss in order to recover damages, the owner of the cow should logically be able to recover tort damages from the owner of the ox and additional damages from his bailee for loss resulting from the latter’s negligence. R. Zevi Pesach Frank is quoted in <i>Birkat Yehudah</i>, no. 20, as stating that, in this case as well, the bailee, upon payment of damages, is regarded as having acquired title to the cow retroactively and hence the bailor has no further claim upon the tortfeasor. Cf., Rabbi Baron’s discussion in <i>Birkat Yehudah</i>, no. 20.</i> The Gemara even questions why the bailee should not similarly be entitled to claim wool grown by the stolen animal or young that are foaled. There seems to be no question that the bailee is indeed entitled to any increment in the value of the animal. In that case as well, the thief has caused no loss to the bailee who has been completely exonerated but who is nevertheless considered to be the victim. Apparently, the thief is required to pay compensation for the value of the object stolen even if the theft causes no actual loss to the victim.
  The identical principle is reflected in the rule formulated by the Gemara, <i>Gittin</i> 42b, with regard to a slave who has suffered bodily harm at the hands of his master of a nature such that the master is obligated to free him but who has not yet received a bill of manumission. The Gemara declares that if, in that interim period, the slave is the victim of battery at the hands of another person, damages are paid to the master. That is so despite the fact that, since the master is no longer entitled to the service of the slave and must emancipate him, the master has sustained no loss as a result of the battery. Once again it is evident that damage, even if unattended by financial loss, is sufficient to engender tort liability.
  The application of this principle to the insurance situation is obvious. Even if it is conceded that damage to insured property does not constitute a loss to the proprietor, that concession is irrelevant. The tortfeasor is liable, not because he causes loss, but because he has destroyed or damaged an object of value. Hence he remains liable even if the victim suffers no out of pocket damages.12<i class="footnote">R. Yo’av Yehoshu’a also advances another argument echoing Maharsham’s contention that insurance is a commercial enterprise. R. Yo’av Yehoshu’a argues a) that the owner of the policy need not be the owner of the insured property and b) a person may have multiple insurance policies with multiple companies. Those facts serve to demonstrate that insurance compensation is divorced from tort compensation. As a legal matter, at least in Britain and the United States, insurance coverage can be provided only for an “insurable interest” with the result that fire or theft insurance cannot be written other than for the owner of the insured property. See generally, Keeton and Widiss, pp. 135–136 and 142–149 as well as Meyer, pp. 88–91. Similarly, for reasons of public policy, the law does not allow multiple recovery.The concern is that if a property owner obtains insurance policies from two or more insurers in a total amount that exceeds the property’s value, the insured may have an inducement to destroy the property in order to collect the insurance. See Keeton and Widiss, p. 255. However, since Halakhah does not place such restrictions upon insurance, the strictures of a civil system of law do not mitigate the cogency of the argument.</i>
  Despite the cogency of his own analysis, R. Yo'av Yehoshu'a requested the readers of <i>Sha'arei Torah</i> to communicate their views to him and to supply references to any applicable sources that might shed light on the question. Later, complaining of a lack of response, he republished the identical article with a similar plea in <i>Degel ha-Torah</i>, an anthology edited by R. Menachem Mendel Kasher (Warsaw, 5681-5682), no. 13.
  4. Bailments as Distinct from Torts
  The related but somewhat different question of a bailee's obligation for loss otherwise covered by insurance is addressed by R. Meir Simchah of Dvinsk in his novellae on Rambam's <i>Mishneh Torah, Or Sameaḥ, Hilkhot Sekhirut</i> 7:1. A person entered into a leasehold agreement and explicitly assumed liability for loss due to fire. Subsequently, the lessor arranged for fire insurance on his property. Although a claim for fire damage was honored by the insurance company, the landlord sought to recover his loss from the tenant as well. <i>Or Sameaḥ</i> apparently takes it for granted that a loss has occurred for which the bailee is intrinsically liable and that a claim that the loss is negated by insurance compensation is spurious. The point that he does consider is based upon the fact that, unlike tort liability, the obligations of a bailee are the product of a bilateral contract. Since the bailee is liable only because he has assumed responsibility for loss due to fire, may he plead that he had no intention to assume liability for losses that are compensated by insurance?
  The Mishnah, <i>Bava Kamma</i> 115b, describes a situation in which two donkeys belonging to separate masters are in danger of drowning. The Mishnah declares that if the owner of the less valuable donkey offers to rescue the more valuable donkey on the condition that the latter's owner compensate him by the loss of his own less valuable donkey, the rescuer's claim for such compensation is valid. The Gemara, <i>Bava Kamma</i> 116a, reports that Rav Kahana asked Rav whether that is so only if the rescuer's own donkey actually perishes or whether he is entitled to such compensation even if the rescuer's donkey manages to escape drowning on its own accord. The Gemara reports that Rav replied, "Heaven acted favorably toward him," i.e., the contract is enforceable. <i>Or Sameaḥ</i> that the ruling is obviously predicated upon rejection of the claim that the obligation was assumed by the donkey owner only because he believed that the rescuer would suffer a loss as a result of neglecting his own animal but that he had no intention of compensating the rescuer for a loss that did not actually occur.13<i class="footnote"><i>Harei Besamim</i> cites this talmudic discussion but maintains that the rescuer did indeed suffer a loss in abandoning his donkey in turbulent water as a result of which it became <i>res nullius</i>. Reclaiming his donkey afterwards, contends <i>Harei Besamim</i>, is, in fact, tantamount to acquisition of new title to abandoned property. <i>Or Sameaḥ</i>, citing the dialectic of that discussion, argues that the Gemara did not regard the donkey as <i>res nullius</i>. See also the discussion of this issue by R. Moshe Yonah Zweig, <i>Ohel Mosheh</i>, III, no. 33.</i> That claim is impliedly dismissed on the grounds that a fortuitous "act of God" is of no relevance to the express terms of the contract. <i>A fortiori</i>, argues <i>Or Sameaḥ</i>, the lessor's own foresight in seeking insurance is of no relevance to the contract between himself and the lessee.
  <i>Or Sameaḥ</i> further observes that, by virtue of the nature of bailment contracts, a bailee may at times receive compensation that is far in excess of the value of the bailment. The Gemara, <i>Bava Mezi'a</i> 35b, declares that, "At times the owner pays [the value of] many cows to the hirer!" The highly complicated fact pattern presented by the Gemara involves a situation in which a person hired a cow for a hundred days and then lent the same animal back to the owner for ninety days. The original hirer then rehired the identical cow for eighty days and again lent the animal to its owner for seventy days. The animal then died during the period in which it had been "lent" to its owner. According to the rules governing bailments, a borrower has absolute liability for loss or damage to the bailed chattel (other than damage in the form of "wear and tear" resulting from legitimate use of the borrowed object). In the hypothetical case described by the Gemara, two conflicting judgments are presented. R. Zeira ruled that since the owner "borrowed" his own animal twice he must pay his own lessee, who twice lent him back the cow, the value of two cows. Since he entered into two separate contracts for the hire of the animal he must also provide a cow for use during the unexpired rental periods to the extent that those periods were greater than the shorter periods for which the owner had borrowed back his own animal. Each time, after borrowing back his own animal for a period of time shorter than the rental period, the owner of the animal remained liable for providing the use of the animal for a period of ten days. Thus, the death of the animal left him with the responsibility for providing use of a cow for twenty days. Mar the son of Rav Ashi limited the owner's liability to one cow, since it was but a single cow that was borrowed twice, and an additional cow for use during a twenty-day period14<i class="footnote">See Rashi, <i>ad locum</i>, s.v. <i>mikhdi</i> and s.v. <i>mi ita</i>. Note b(1) in the Soncino translation is incorrect in stating that the owner must supply the lessee with use of an animal for a ten-day period.</i> representing the unexpired portions of the periods of hire. According to both opinions, the hirer is entitled to fulfillment of the contract for the hire of a cow despite the fact that he is compensated by the borrower for the full value of the cow and hence sustains no out of pocket loss. The various obligations are assumed independently and each contract must be honored separately. The fact that the obligor has profited in some extraneous manner does not release the obligee from his contractual undertaking. Similarly, argues <i>Or Sameaḥ</i>, the fact that the property owner has profited from an insurance contract does not release the lessee from the latter's contractual undertaking.15<i class="footnote">The same point is made by R. Elchanan Wasserman, <i>Koveẓ Shi’urim, Ketubot</i>, no. 218, in demonstrating that payment of damages is made, not as compensation for loss, but to “the proprietor of the right of compensation,” a thesis akin to that formulated by the author of <i>Ḥelkat Yo’av</i>. Reb Elchanan, however, queries the principle underlying the rule that if a person steals food, but the owner does not despair of recovery, and the food is eaten by a third party, the owner may recover from either the thief or the person who consumed the food but not from both. R. Elchanan questions why the owner should not be permitted double recovery just as the hirer of the cow is permitted double recovery.It appears to this writer that the answer lies in the distinction between tort and contract. Contract liability flows from the agreement between the parties with the result that a single object can be the subject of multiple agreements each giving rise to separate liability whereas tort liability flows from damage caused to the property (albeit not necessarily out-of-pocket loss). Hence, although tortfeasors may be liable jointly and severally, they are not subject to double liability. The obligation of a thief for damage to stolen property, it may be argued, is not the result of a voluntary undertaking but is akin to that of tort liability and, accordingly, the owner is not entitled to double recovery. Cf., <i>Teshuvot Minḥat Yiẓḥak</i>, III, no. 126, sec. 6.</i>
  An even clearer example of compensation unrelated to loss is presented by R. Zevi Pesach Frank, in an article published in <i>Ha-Pardes</i>, Tevet 5719, and included in his commentary on <i>Tur Shulḥan Arukh, Har Ẓevi, Hoshen Mishpat</i> 238, as well as by R. Yitzchak Ya'akov Weisz, <i>Teshuvot Minḥat Yizḥak</i>, III, no. 126. The rules governing bailment provide that a hirer is not liable for unavoidable damage whereas a borrower is liable even for damage attributable to <i>force majeure</i>. Accordingly, the Mishnah, <i>Bava Mezi'a</i> 35b, declares that, if a man hires a cow and lends it to another and the cow then dies a natural death, the hirer is not liable to the owner but the borrower must pay the hirer the full value of the cow. This is so despite the fact that, had the animal been returned to him, the hirer would have had to restore the cow to the owner. Thus, the hirer has suffered no pecuniary loss but is nevertheless entitled to compensation.16<i class="footnote">The conflicting opinion of R. Yosi recorded in the Mishnah does not challenge the basic principle. R. Yosi expresses his disagreement in the words, “How can one do business with his friend’s cow?” and declares that the value of the cow must be returned to the owner. R. Yosi’s disagreement reflects either a consideration of unjust enrichment or, as is the opinion of <i>Tosafot, ad locum</i>, a challenge to the vesting of a proprietary interest in the borrower; it does not reflect the notion that the hirer is not entitled to recovery because he has not suffered a loss. See <i>Teshuvot Shevut Ya‘akov</i>, III, no. 148 and the earlier cited article by R. Yo’av Yehoshu’a of Kintzk.</i>
  Both authorities maintain that the Mishnah demonstrates only that a bailor may be obligated to pay compensation even in the absence of actual loss but that it fails to demonstrate that this is true with regard to tortfeasors. The bailee's obligation flows from the bailment contract into which he has entered.17<i class="footnote">See <i>Tosafot, Ketubot</i> 56b, s.v. <i>harei zu mekudeshet</i>.</i> The borrower has obliged himself to deliver the cow or its value to his bailor and has not limited his liability by stipulating that he will deliver the value of the cow only in case of actual pecuniary loss. The tortfeasor is obligated by virtue of statutory law which may well require actual loss as a condition of liability.
  Hence, it is arguable that <i>Or Sameaḥ</i> was entirely correct in ruling that the lessee of real estate who assumes such liability is responsible for fire damage even though the homeowner has been compensated by insurance while <i>Harei Besamim</i> was equally correct in ruling that an arsonist could not be held liable in similar circumstances.
  5. The Case of a Borrowed Automobile
  A variation of this question occurs in the case of a person who borrows an insured motor vehicle and is subsequently involved in an accident. The owner, who is compensated for damages to his automobile by his own insurance company, suffers no loss. May he nevertheless claim damages from the borrower? That question is addressed by <i>Minḥat Yizḥak</i>, III, no. 126.18<i class="footnote"><i>Minḥat Yiẓḥak</i> contends that potential liability on the part of the borrower exists only if the borrower deviated from the agreement between the parties concerning use of the automobile; otherwise a borrower is not held liable for damages arising from ordinary use of the bailment. <i>Minḥat Yiẓḥak</i> would presumably agree that, since a borrower is liable for negligence, the selfsame issue presents itself in situations in which the accident is the result of negligence on the part of the borrower. However, it seems to this writer that a borrower is liable in all circumstances for damages sustained in a motor vehicle accident. A borrower is not liable for damage that occurs in the course of ordinary use of the bailment. Such depreciation in value is in the nature of normal “wear and tear.” However, the borrower is liable for “theft or loss.” It would seem that damage as the result of a collision is of the latter category.</i> <i>Minḥat Yizḥak</i> asserts that, since a) it is common knowledge that every automobile owner has insurance coverage and indeed such coverage is mandated by law19<i class="footnote"><i>Minḥat Yiẓḥak</i> seems to confuse collision coverage with liability insurance. Although liability insurance is required in virtually all jurisdictions, collision coverage is not. Indeed, many owners of cars having low resale value find collision coverage to be uneconomic. Nevertheless, <i>Minḥat Yiẓḥak</i>’s second point is entirely valid.</i> and b) it is "the custom of the land" not to demand compensation from the borrower when insurance compensation is forthcoming, the borrower may plead that it was an implied condition of the bailment contract that he would not be held liable under such circumstances. In support of this contention <i>Minḥat Yizḥak</i> cites <i>Teshuvot Havvot Ya'ir</i>, no. 106, who rules that a maid cannot be held responsible for breaking a dish or glass since most employers do not attempt to collect damages for such loss.
  <i>Minḥat Yizḥak</i> rules that the owner is entitled to recover from the borrower any increase in the insurance premium that may be levied upon him as a result of his claim. Although indirect loss is generally not actionable, this situation is different by virtue of the fact that, if the borrower disclaims liability for the increase in the insurance premium, the owner may forego his claim against the insurance carrier and pursue a claim for damages against the borrower.20<i class="footnote">See <i>Bava Kamma</i> 8a.</i> <i>Minḥat Yizḥak</i> apparently assumes that there is no "custom of the land" not to recover an increase in premium costs from the borrower.
  6. Double Compensation for Medical Expenses
  The question of recovery of medical expenses from a tortfeasor when those expenses have been defrayed by medical insurance would, on first analysis, seem to be no different from recovery of property damage that is covered by insurance. However, upon further examination, that issue, which has not been explicitly addressed by rabbinic scholars, is more problematic.
  Rambam, <i>Hilkhot Hovel u-Mazik</i> 4:15, rules that medical expenses of a married woman for treatment of wounds sustained as a result of battery are payable to her husband because, as explained by <i>Maggid Mishneh, ad locum</i>, a husband must pay medical expenses incurred by his wife. Rosh, <i>Ketubot</i> 6:1, disagrees with Rambam's position and rules that the costs of treatment are payable directly to the physician. Rosh further rules that the tortfeasor is liable for estimated costs of treatment with the result that if the woman's recovery is more rapid than usual, and consequently the physician's fees are less than anticipated, the balance is payable to the wife, as is the case with regard to pain and suffering which accrues to the wife.
  It would seem that, according to Rambam, the tortfeasor is liable for medical expenses only to the insurance company just as the tortfeasor is liable only to the husband who is responsible for his wife's medical expenses. Moreover, it would seem that, according to Rambam, the same should be the case with regard to property damage as well, as is indeed the view of <i>Teshuvot Harei Besamim</i> and <i>Teshuvot Divrei Hayyim</i>.
  However, R. Elchanan Wasserman, <i>Kovez Shi'urim, Ketubot</i>, sec. 218, raises an objection with regard to Rambam's view. The Gemara, <i>Gittin</i> 12b, declares that, in the case of a battery committed against a slave, medical expenses are payable to the slave and not to the master. R. Elchanan poses the following question: Title to any property acquired by a slave is immediately vested in his master. If so, why are medical costs not paid to the master? Based on that difficulty, R. Elchanan develops the thesis that a battery victim has no pecuniary interest in a claim for medical costs; rather, the victim's claim is to be healed and restored to health. Battery generates an obligation <i>in personam</i> on the part of the tortfeasor to be made whole physically. The tortfeasor must either heal the victim himself or, if he is not proficient in the medical arts, he must hire a physician to do so on his behalf. R. Elchanan further asserts that a husband's obligation <i>vis-à-vis</i> the medical treatment of his wife is entirely similar, i.e., he must restore her to health and, if he is unable to do so, he must hire a physician to do so on his behalf. Payment of medical expenses to the husband by the tortfeasor is not a satisfaction of a monetary claim of the husband but simply an expedient designed to assure medical treatment of the wife for which, in cases of battery, the tortfeasor has primary responsibility. It follows from this theory, declares R. Elchanan, that, if the victim dies of other causes before receiving medical treatment, the heirs have no claim of recovery of the costs that would have been incurred for medical treatment.
  If so, it would seem to this writer, that, according to R. Elchanan's thesis, were a physician willing to treat the patient without a fee, the victim would have no claim whatsoever upon the tortfeasor for medical expenses since that claim is not in the nature of a pecuniary claim for damages but constitutes a claim <i>in personam</i> to be healed. Similarly, if payment is made by a third party, e.g., an insurance company (or even a relative who defrays the costs <i>ex gratia</i> rather than in the form of a loan), the tortfeasor has no liability.
  However, R. Elchanan's position is a bit problematic. Estimated medical expenses must be paid in full even if the healing process takes less time than usual. The balance is categorized by the Gemara, <i>Gittin</i> 12b, as a form of compensation for pain and suffering. Compensation for pain and suffering is payable to the wife and indeed, according to Rosh, the balance of the estimated medical expenses is similarly payable to the wife. <i>Baḥ, Even ha-Ezer</i> 83:4, declares that, according to Rambam, the husband may retain the balance. However, according to R. Elchanan, who asserts that the husband himself has no pecuniary interest in his wife's claim for medical expenses but is merely a custodian of the funds or a conduit to assure her treatment, any balance should logically accrue to the wife. If that is indeed R. Elchanan's view, it is in conflict with that of <i>Baḥ</i>. Thus, if R. Elchanan's thesis is accepted, an accident victim cannot be allowed double recovey for medical expenses. If, on the other hand, <i>Baḥ</i>'s view is accepted, it follows that medical expenses must be treated in the same manner as other tort damages with regard to the possibility of double recovery.
  II. Life Insurance and the Ketubah
  In our society it is commonplace for husbands to purchase life insurance policies and to name their wives as beneficiaries. The laudable motivation is to provide funds for the support of a wife who becomes bereft of her husband and at the same time loses her source of financial support. The halakhic question that arises is whether a wife who is the beneficiary of a life insurance policy of significant value may also claim payment from her husband's estate of the obligations arising from her <i>ketubah</i> or whether that claim is to be deemed to have been satisfied by the proceeds of the insurance policy.
  Although the issue may elude the attention of the parties, it is present in a number of cases, particularly in instances of second marriages, in which financial disputes arise between the widow and the husband's heirs. Surprisingly, there appears to be but a single published discussion of this question. That analysis, authored by a Sephardic scholar, R. Yehudah Chaim ha-Kohen Masalton, is included in his <i>Ve-Zot le-Yehudah</i> (Cairo, 5697), <i>Even ha-Ezer</i>, no. 8.
  The details of the case brought before Rabbi Masalton and the <i>Bet Din</i> of Cairo are rather complex. The policy in question was for the sum of five hundred guineas payable to the policyholder twenty years after the date of issue or, in the event of his death in the interim, to the insured's wife immediately upon his death.
  In Ashkenazic communities, the amount of the <i>tosefet ketubah</i>, i.e., the sum to which the groom obligates himself in addition to the amount prescribed by statute, is standard.21<i class="footnote">See <i>Tur Shulḥan Arukh, Even ha-Ezer</i>, end of section 66 and <i>Baḥ, ad locum</i>.</i> In the case of a virgin bride, standard practice is to place a value of one hundred silver <i>zekukim</i> upon the property brought to the marriage by the bride as a dowry. That sum is returnable to the bride upon termination of the marriage either by death of the husband or divorce. The groom customarily assumes an obligation to return that sum together with an additional one hundred silver <i>zekukim</i> for a total of two hundred silver <i>zekukim</i> in addition22<i class="footnote">See <i>Derishah, Even ha-Ezer</i> 66:4. However, <i>Baḥ, Even ha-Ezer</i>, sec. 66, s.v. <i>ve-akhshav</i> and <i>ibid., kuntres aḥaron</i>, maintains that the two hundred <i>zuzim</i> are included in the valuation of the dowry.</i> to the statutory two hundred <i>zuzim</i>.23<i class="footnote">For a discussion of various opinions regarding the weight, and hence the value, of these coins, see R. Judah Kelemer’s excellent analysis of the text of the <i>ketubah</i> and the principles upon which it is based, <i>Tosefet Ketubah</i> (Jerusalem, 5750), pp. 13–16.</i> In many Sephardic communities, the groom's assumption of an obligation in the form of <i>tosefet ketubah</i> is subject to voluntary adjustment and/or negotiation with the result that the value of the obligation represented by the <i>ketubah</i> may vary from case to case.
  Coincidentally or by design, in the case under discussion, the widow's <i>ketubah</i> declared an obligation in the sum of five hundred guineas—precisely the face value of the insurance policy. That sum was promptly paid to the widow by the insurance company. The matter was further complicated by a local custom that was acknowledged by Rabbi Masalton as an implied condition of the agreement memorialized in the <i>ketubah</i>. Local custom denied recovery of the <i>tosefet ketubah</i> in whole or in part unless an equal amount remained in the estate for distribution to the heirs.24<i class="footnote">That custom has its origin in a <i>takkanah</i> promulgated in some Spanish communities, particularly Molina, during the medieval period. As reported by <i>Teshuvot ha-Rosh, klal</i> 55, no. 8, the widow was entitled to return of her dowry and, in addition, a maximum of fifty percent of the balance of the estate. Cf., <i>Encyclopedia Judaica</i> (Jerusalem, 1971), XV, 478.</i> In the case under discussion, the total value of the estate was two hundred and fifty guineas.
  The heirs contended that the insurance policy did not represent a gift to the wife but was designed to assure payment of the <i>ketubah</i>. But, they further claimed, since the total value of the estate, including the insurance proceeds, totaled seven hundred and fifty guineas, the widow was entitled to no more than fifty percent, i.e., three hundred and seventy-five guineas. Accordingly, not only did they decline to make any additional payment to the widow, but they also demanded that the widow turn over to them the sum of one hundred and twenty-five guineas, representing the difference between fifty percent of the estate (inclusive of the proceeds of the insurance policy) and the amount she had collected from the insurance company.
  Rabbi Masalton correctly notes that designation of a beneficiary on an insurance policy could not constitute a valid conveyance of the value of the policy for the obvious reason that the policy does not acquire that value until the death of the insured. Hence, any such conveyance would fail by reason of the fact that the property to be conveyed is not yet in existence at the time of the conveyance (<i>davar she-lo ba le-olam</i>).25<i class="footnote">See <i>Shulḥan Arukh, Ḥoshen Mishpat</i> 209:4. Rabbi Masalton seems to be under the impression that designation of a beneficiary constitutes a conveyance for purposes of civil law. That assumption is inaccurate as evidenced in part by the fact that designation of a beneficiary is revocable. There is nothing in either the language or the nature of an insurance policy to indicate that it constitutes a revocable or conditional conveyance, particularly since the insured is generally described as the owner of the policy. It would be somewhat more cogent to construe the naming of a beneficiary as a conveyance to the beneficiary in situations in which the beneficiary is also designated as the owner of the policy. However, as will be shown later, even in that case, designation of a beneficiary does not constitute a conveyance by the insured but assumption of an obligation <i>vis-à-vis</i> the beneficiary on the part of the insurance company.Assuming, <i>arguendo</i>, that the insurance contract contains language of conveyance to the owner rather than language of obligation, whether or not, for purposes of Jewish law, execution of such an instrument constitutes a valid conveyance with regard to property not yet in existence is a matter of controversy. The <i>kinyan</i>, or mode of transfer represented by designation of a beneficiary, is not one of the forms of <i>kinyan</i> expressly recognized by Halakhah. Rather, it must be regarded as being in the nature of <i>situmta</i>, i.e., the custom and usage of merchants. Some authorities maintain that <i>situmta</i> is effective even with regard to property not yet in existence; others maintain that the limitation against conveying property not yet in one’s possession applies to <i>situmta</i> as well. See sources cited by <i>Pitḥei Teshuvah, Ḥoshen Mishpat</i> 201:2. That controversy appears to center upon the nature of <i>situmta</i>: Is situmta simply an additional mode of generating absolute determination (<i>gemirat da‘at</i>) or evidence that such has occurred, or does <i>situmta</i> represent a rabbinic ordinance validating transfer of title even in the absence of formal <i>kinyan</i>? If the former, there are no grounds to assume that <i>situmta</i> is effective in situations in which ordinary modes of conveyance are not; if the latter, a rabbinic edict might give effect to a conveyance in the form of <i>situmta</i> even for the conveyance of property with regard to which biblical conveyance is impossible. Cf., <i>Teshuvot Rivash</i>, no. 308; <i>Teshuvot ha-Rosh, klal</i>, 12, no. 3; <i>Teshuvot ha-Rashbash, Tikkun Soferim, din asmakhta</i>; <i>Teshuvot Maharshal</i>, no. 34; <i>Yam shel Shlomoh, Bava Kamma</i> 8:60; <i>Teshuvot Rema</i>, no. 134; <i>Ma‘aseh Ḥiyya</i>, no. 14; <i>Teshuvot Ḥatam Sofer, Ḥoshen Mishpat</i>, no. 66 sec. 2; and <i>Ḥukkat Mishpat, Hilkhot Mekhirah</i> 1:5 and <i>mekorot, ibid.</i>, sec. 11, as well as <i>addenda</i>, no. 1.However, as will be explained in the text, a life insurance policy is not a conveyance of property, but represents simply an obligation on the part of the insurance company to pay a sum of money at a certain time (i.e., upon the death of the insured) to the individual designated by the owner. Naming the beneficiary as the owner means only that the beneficiary alone has the power to designate an alternate beneficiary.Rabbi Masalton also advances the argument that no <i>kinyan</i> is necessary because, since the proceeds of the policy are expressly made payable only upon death of the policyholder, the gift can be construed as <i>mortis causa</i> (<i>meẓaveh maḥamat mitah</i>). To be sure, since the rabbinic enactment giving effect to such verbal gifts even in the absence of valid <i>kinyan</i> was born of a concern that aggravation caused by inability physically to consummate the transfer might hasten death, most authorities maintain that the rabbinic legislation is limited to gravely ill persons, and to persons making such gifts in actual contemplation of death, e.g., a person about to be executed or a person preparing to embark on a sea voyage or desert journey. However, <i>Mordekhai, Bava Meẓi’a</i>, sec. 254, cites the opinion of Maharam who maintains that all gifts predicated upon death are governed by the rabbinic ordinance governing gifts <i>mortis causa</i>. Accordingly, Rabbi Masalton suggests that the widow who is in possession of the funds might rely upon the authorities who accept the ruling of Maharam. However, if, as must be assumed, an insurance policy is not a conveyance of property to the beneficiary but a directive concerning payment of a debt, that controversy is not relevant to the resolution of the issue.</i> However, Rabbi Masalton notes that although immediate transfer of title is not possible, a person can validly obligate himself to deliver an object of value that is not yet in existence.26<i class="footnote">See <i>Pitḥei Teshuvah, Ḥoshen Mishpat</i> 209:3.</i> Nevertheless, citing <i>Teshuvot R. Akiva Eger</i>, no. 141,27<i class="footnote">For additional sources see <i>Ḥukkat Mishpat, Hilkhot Mekhirah</i> 30:4 and <i>ibid., bi’urim</i>, secs. 13 and 17. Opposing views, including that of <i>Teshuvot Mahara Sason</i>, no. 133, maintain that heirs are bound even in such circumstances. See <i>Ḥukkat Mishpat, bi’urim, loc. cit.</i></i> Rabbi Masalton argues that if a person has obligated himself to deliver property not yet in existence, e.g., the fruit of a tree, but dies before the fruit comes into existence, his heirs are under no obligation to transfer the property to the decedent's designee. Two theories have been advanced in explanation of why heirs are not bound to consummate the conveyance of the title even though the decedent, were he alive, would be obligated to do so: (1) since transfer of title has not been consummated, the obligation is personal in nature and, in effect, dies together with the obligee; or (2) even if a lien attaches upon the property when the property comes into existence, such a lien cannot be generated in cases of inheritance since absolute title vests in the heirs prior to attachment of the transferee's lien upon the fruit and thereby preempts such attachment. Applying that principle, Rabbi Masalton argues that, since the policy acquires the nature of property only upon the death of the insured, the property does not vest in the policyholders but in the heirs who are not bound by the policyholder's undertaking.
  Rabbi Masalton's characterization of an insurance contract as an undertaking by the policyholder obligating himself to deliver the proceeds to the beneficiary is not borne out by the facts. In actuality, the policyholder does not bind himself to the beneficiary in any way. Indeed, a policyholder is usually at liberty to change beneficiaries or even to surrender the policy.
  Proper analysis of the halakhic issues depends upon correct understanding of the nature of life insurance policies. An insurance policy constitutes nothing more than a contract between the policyholder and the insurance company with payment due to the policyholder himself in form of the cash value of the policy upon surrender (or, for contemporary policies, payment of the face value upon survival to age 99) or, upon death of the insured, payment of the face value either to his estate or to a designated beneficiary. Thus, the original question remains: In directing the insurance company to make payment to his wife upon his demise, did the husband direct the insurance company to make an <i>ex gratia</i> payment on his behalf or did the husband direct the insurance company to tender payment in satisfaction of the claim represented by the <i>ketubah</i>?
  Rabbi Masalton advances a second line of reasoning that is relevant even upon an accurate analysis of the character of an insurance policy. He argues that, if indeed it was the husband's intent to make a gift of the proceeds to his wife, the gift is governed by the halakhic provisions stemming from the principle "It is a <i>mizvah</i> to fulfill the words of the deceased" as recorded in Shulḥan Arukh, Hoshen Mishpat 252:62 and <i>Even ha-Ezer</i> 54:1. In light of the many authorities who maintain that "It is a <i>mizvah</i> to fulfill the words of the deceased" even with regard to property that comes into possession of the estate after the testator's death, Rabbi Masalton argues that the heirs are under obligation to fulfill those wishes. However, in the case brought before him, he questions whether that was indeed the husband's intent since, under the terms of the policy, had the husband survived for a period of twenty years, payment would have been made to him rather than to the wife.28<i class="footnote">Rabbi Masalton categorizes this as a “self-evident assessment” (<i>umdena de-mukhaḥ</i>) of the husband’s intention. He further contends that any ambiguity must be interpreted in favor of the heirs and cites <i>Teshuvot Maharashdam, Ḥoshen Mishpat</i>, no. 337 and <i>Ozen Aharon</i>, p. 38, to that effect.</i> Accordingly, argues Rabbi Masalton, it is likely that the husband did not intend the policy to be a gift but to provide assurance of payment of the <i>ketubah</i>. Thus, Rabbi Masalton's reasoning would lead to the conclusion that a typical life insurance policy that provides for payment only upon death of the insured is to be construed as a gift to the wife. Nevertheless, in the concluding section of his responsum, Rabbi Masalton asserts that in a city in which the claim for payment of the <i>tosefet ketubah</i> might entirely deplete an estate and effectively disinherit the heirs, it is unthinkable that a husband would intend his wife to be the beneficiary of his life insurance policy and collect her <i>ketubah</i> as well. Moreover, asserts Rabbi Masalton, many authorities maintain that the principle "It is a <i>mizvah</i> to fulfill the words of the deceased" is applicable only in situations in which funds have been deposited with a bailee with specific instructions for disbursement after death. He further cites authorities who, accordingly, maintain that "It is a <i>mizvah</i> to fulfill the words of the deceased" does not apply to property not yet in existence when such a directive is issued.29<i class="footnote">See <i>Knesset ha-Gedolah, Ḥoshen Mishpat</i> 252:32 and <i>Sedei Ḥemed, Kuntres ha-Kelalim, Ma‘arekhet ha-Mem</i>, no. 219, s.v. <i>ve-od</i>.</i> Furthermore, <i>Mordekhai, Bava Batra</i>, sec. 592, rules that a deposit accompanied by an express declaration, "If I need the funds, return them to me; but if I die, give them to my son" does not qualify as a valid testament. The rationale underlying <i>Mordekhai</i>'s ruling is that "It is a <i>mizvah</i> to fulfill the words of the deceased" applies only to situations in which designation of a beneficiary is absolute. Rabbi Masalton argues that, even if the provision is not spelled out in the insurance contract, since it is commonly known that a policy can be surrendered for its cash value, every insurance policy, is, in effect, predicated upon a specific reservation allowing the policyholder to reclaim its cash value and hence the heirs are under no obligation to "fulfill the words of the deceased."
  Rabbi Masalton reports that, because of the element of doubt involved, the <i>Bet Din</i> allowed the widow to retain the proceeds of the insurance policy that were already in her possession but disallowed any additional claim for satisfaction of the <i>ketubah</i>.
  As is evident from the foregoing discussion, adjudication of this issue involves two separate questions: (1) Whether the intent of the husband in purchasing an insurance policy is to assure payment of the <i>ketubah</i> or whether it is intended as an entirely separate <i>ex gratia</i> provision for his wife. (2) If the latter, whether the heirs have a claim for recovery of the proceeds either from the insurance company or from the widow on the grounds that (a) there was no <i>inter vivos</i> gift and (b) they are for some reason not obligated to "fulfill the words of the deceased."
  It seems to this writer that the first issue may be resolved on the basis of the general halakhic principle that possession by a creditor of an instrument of indebtedness is <i>prima facia</i> evidence of non-payment of the debt. As expressed by the Gemara, <i>Bava Batra</i> 70a, if the debt has indeed been paid, "What is your note doing in my hand" (<i>shetarkha be-yadi ma'i ba'i</i>)? That presumption represents an assessment of human behavior. A debtor who has satisfied a debt simply does not allow a creditor to retain a promissory note that constitutes evidence of ongoing indebtedness. The debtor will decline to discharge the debt unless and until the promissory note is returned to him. A <i>ketubah</i> is simply a particular type of promissory note. A husband who makes provision for payment of the <i>ketubah</i> during his own lifetime is entitled to recover the <i>ketubah</i>. Indeed, in discussing what is to be done with a <i>ketubah</i> that originally belonged to a woman who is still married to the man named in that instrument but which has been lost and subsequently found by a stranger, the Gemara, <i>Bava Mezi'a</i> 7b, considers the possibility that the <i>ketubah</i> may have been lost by the husband who may have recovered the <i>ketubah</i> from his wife30<i class="footnote">Cf., however, Rashba and Ritva, in their commentaries <i>ad locum</i>, who understand the concern to be that the husband may have delivered the bundle of coins subsequent to loss of the <i>ketubah</i> so that the couple might be permitted to continue to engage in marital relations.</i> upon delivery to her of a "bundle" of coins which she can later apply to payment of the <i>ketubah</i> when it becomes due. It would clearly be inappropriate for the wife to retain her <i>ketubah</i> once the debt it represents has been satisfied lest it be used to claim the debt a second time.
  Assuredly, as noted by the commentaries on <i>Bava Mezi'a</i> 7b, a creditor may at times require a debtor to deposit a pledge as security for payment even if the creditor holds a promissory note. Accordingly, if the insurance policy is designed only as security in the event of failure of the heirs to pay the value of the <i>ketubah</i>, possession of that instrument by the wife does not constitute evidence of non-payment. Unlike a bundle of coins which are to be returned upon payment of the <i>ketubah</i>, the proceeds of an insurance policy would constitute actual payment of the <i>ketubah</i> rather than security for future payment. Thus it is certainly arguable that the husband would not name his wife as beneficiary and also permit her to retain her <i>ketubah</i> unless he intends the insurance proceeds to be a gift unrelated to payment of the <i>ketubah</i>.
  It is of course true that, were the husband to recover the <i>ketubah</i> on the claim that the obligations of the <i>ketubah</i> have been satisfied by purchase of an insurance policy, the couple would be forbidden to engage in marital relations since, in the absence of an instrument demonstrating the husband's indebtedness, there is nothing to prevent him from acting precipitously in divorcing his wife.31<i class="footnote">This is not a concern in a situation in which the husband deposits chattel to satisfy the claim of the <i>ketubah</i> since, under such circumstances, he retains the right of management as well as the right to usufruct. Both rights would be lost to him upon divorce and hence those interests serve to prevent precipitous divorce. See <i>Tosafot, Ketubot</i> 56b, s.v. <i>aval</i>. Moreover, deposit of chattel serves to permit marital relations only on a temporary basis. See Rema, <i>Even ha-Ezer</i> 66:2.</i> However, that consideration does not defeat the underlying point, <i>viz</i>., that a person does not allow a creditor to retain evidence of a debt that has been satisfied. Hence, a husband would not satisfy the obligations of which the <i>ketubah</i> serves as evidence so long as his wife retains the <i>ketubah</i> for any reason. However, since the wife must retain possession of the <i>ketubah</i> so that the couple may legitimately continue to engage in marital relations, the husband, if he intended the insurance proceeds to be in lieu of payment of the <i>ketubah</i>, would perforce demand a receipt or acknowledgment of that arrangement upon naming his wife as beneficiary.32<i class="footnote">Since the insurance is payable only upon death of the husband, retention of the <i>ketubah</i> by the wife upon such acknowledgment serves its intended purpose, i.e., to discourage precipitous divorce by virtue of the fact that, in the event of divorce, payment of the <i>ketubah</i> would be claimed immediately.</i> It therefore follows that, if the husband names his wife as beneficiary on an insurance policy and also allows her to retain possession of the <i>ketubah</i> without obtaining such an acknowledgment, he does not intend the insurance proceeds to serve as satisfaction of the claims represented by the <i>ketubah</i>. Contrary to Rabbi Masalton's contention, in our society there is certainly no contradictory presumption that a husband would refrain from any and all acts that would serve completely to deprive his heirs of any share of his estate.33<i class="footnote">Such a presumption is indeed reflected in the discussion of the Gemara, <i>Bava Batra</i> 131b, but is posited only in the context of construction of testamentary language.</i>
  If the insurance policy is regarded as a gift to the wife, it seems to this writer that there is no reason to regard the proceeds available upon death of the insured as a deposit with the insurance company with accompanying instructions for delivery to the beneficiary. Were that the case, discussion of the applicability of the obligation to "fulfill the words of the deceased" would be relevant. But, in point of fact, the funds do not represent a deposit that is returned upon death of the insured but constitute payment of indebtedness incurred by the insurance company in consideration of the premiums paid. When a beneficiary is named at the time the policy is issued the indebtedness is assumed by the insurance company in a conditional manner, i.e., the indebtedness is incurred directly in favor of the beneficiary but is due and owing only upon death of the insured unless the policy is surrendered by the insured in which case the indebtedness is limited to the cash value and is in favor of the insured.34<i class="footnote">According to this analysis, the halakhic validity of a change of beneficiary is somewhat problematic. It is, in effect, a perfectly straightforward cancellation of the company’s debt to the original beneficiary with resultant liability solely to the policyholder and his estate. The designation of a new beneficiary must then be viewed as a conditional assignment of the debt by the policyholder to the substituted beneficiary. That assignment requires a <i>kinyan</i>. Execution of the forms designed to achieve that end may be regarded as a <i>kinyan</i> in the form of <i>situmta</i>.</i> Since it is the insurance company that stands as a debtor <i>vis-à-vis</i> the beneficiary,35<i class="footnote">There is no reason to construe an insurance contract as an obligation solely to the policyholder but which gives rise to a debt on the part of the insurance company only upon the demise of the insured and to construe designation of a beneficiary as an assignment of that debt to a third party. Were that the case, such assignment, since it becomes effective only upon death, would be valid only as a gift <i>mortis causa</i>. Whether such a gift, predicated upon death but made by a person in good health, is valid as a gift <i>mortis causa</i> is a matter of controversy. See <i>supra</i>, note 25. Moreover, as Rabbi Masalton notes, most authorities maintain that heirs are not obligated to “fulfill the words of the deceased” with regard to property interests that do not vest during the life of the deceased. Furthermore, most insurance companies are owned by non-Jews. Rema, Ḥoshen Mishpat 253:20, rules that a debt owed by a non-Jew, even if secured by a pledge or promissory note, cannot be conveyed <i>mortis causa</i>.</i> the heirs have no standing in the matter. Accordingly, in the view of this writer, the widow's claim for payment of her <i>ketubah</i> should be allowed.
  
  Chapter XII Kohanim and Flights Leaving Israel
  
  <i>"The fear of God is pure, enduring forever" (Psalms 19:10). What is [the meaning of] "enduring forever"? Come and see! A mortal who gives a gift to his friend, even if it is a hundred gold coins, how long does it remain in his possession? Two [years], three years, even his entire lifetime. Does it remain in the possession of his children and in the possession of his grandchildren? However, the Holy One, blessed be He, gave a gift to Aaron and his sons which does not depart from them for ever and ever, as it is said "… and it shall be unto him and to his seed after him a covenant of everlasting priesthood" (Numbers 25:13). The Holy One, blessed be He, said to him, "Even though the Temple is destined to be destroyed and the sacrifices abrogated and the high priesthood interrupted, purity is never abrogated. Therefore it says, "The fear of God is pure, enduring forever."</i>
  MIDRASH HA-GADOL, LEVITICUS 21:1
  <i>Said R. Levi: Because of Aaron's awe of the Holy One, blessed be He, he was privileged to be given this section which does not depart from him, his sons or his grandsons, until the end of all generations. Which [section] is it? It is the section of [defilement of] the dead, as it is said, "And God said to Moses: Speak unto the priests, the sons of Aaron…" (Leviticus 21:1)</i>.
  VA-YIKRA RABBAH 26:6
  I. The Problem
  As recorded in Leviticus 21:1-4, other than in conjunction with the burial of a close relative, <i>kohanim</i>, the descendants of Aaron, are forbidden to defile themselves through contact with a corpse. Late in the summer of 2001 Rabbi David Morgenstern of Jerusalem was approached by a newly-observant Israeli pilot who relayed a question raised by a colleague: How is it that <i>kohanim</i> are permitted to embark on flights leaving Lod that pass over a cemetery in Holon? Upon investigation it was discovered that the situation has been in existence since some time in 1984 when flight patterns were altered to minimize flights over densely populated areas north of Ben Gurion airport and to avoid overflying a military area south of the airport. Although the details are not clear, it seems that some night flights departing to the United States use an alternate route but that all flights to European cities fly over Holon. It is reported that government officials have given assurance that flight plans would be altered in order to obviate the problem but that, in actuality, such changes have not been implemented.
  Although there have been previous discussions of the permissibility of <i>kohanim</i> flying over cemeteries,1<i class="footnote">The issue was earlier addressed briefly by <i>Ḥazon Ish, Yoreh De‘ah</i> 211:9; R. Aaron Epstein, <i>Teshuvot Kappei Aharon</i>, no. 25; R. Leib Friedman, <i>Teshuvot ha-Rivad, Yoreh De‘ah</i>, no. 70; R. Israel Freund, <i>Yerushat Pleitah</i> (Budapest, 5707), no. 34, reprinted in <i>She’erit Yisra’el</i>, pp. 23–26, appended to R. David Judah Freund’s <i>Alufei Yehudah al ha-Torah</i> (Jerusalem, 5749); R. Zevi Pesach Frank, <i>Teshuvot Har Ẓevi, Yoreh De‘ah</i>, no. 280; R. Yirmiyahu Menachem Cohen, <i>Teshuvot ve-Herim ha-Kohen</i>, no. 61; and R. Levi Yitzchak Halperin, <i>Teshuvot Ma‘aseh Ḥoshev</i>, IV (Jerusalem, 5757), no. 29.The question of whether a <i>kohen</i> may fly in an airplane when it is not known that the plane will fly over graves but that there is a possibility that it might do so is discussed by <i>Teshuvot Kappei Aharon</i>, no. 25, sec. 1; R. Aryeh Zevi Frommer, <i>Teshuvot Ereẓ Ẓevi</i>, I, no. 93; <i>Teshuvot ha-Rivad, Yoreh De‘ah</i>, no. 70; R. Jacob Zevi Katz, <i>Or Torah</i>, ed. R. Pinchas Zelig Schwartz, no. 49 (reprinted Brooklyn, 5751); R. Menachem Pollack, <i>Teshuvot Ḥelek Levi</i>, no. 128; R. Jacob Breisch, <i>Teshuvot Ḥelkat Ya‘akov</i>, I, no. 12, and II, nos. 179–181; R. Menasheh Klein, <i>Mishneh Halakhot</i>, IX, no. 224; R. Shlomoh Zalman Braun, <i>She‘arim Meẓuyanim be-Halakhah</i> 202:8; R. Betzalel Stern, <i>Be-Ẓel ha-Ḥokhmah</i>, II, no. 82; R. Moshe Stern, <i>Teshuvot Be’er Mosheh</i>, VII, <i>Kuntres Elektrik</i>, no. 88; R. Moshe Sternbuch, <i>Teshuvot ve-Hanhagot</i>, III, no. 347; R. David Munk and R. Yohanan Alexander Lombard, <i>Tohorat ha-Kohanim</i> (Jerusalem, 5762), 11:3; and in the posthumously published restrictive responsum of R. Mordecai Gifter, <i>Yeshurun</i>, X (Nisan 5762), 568–570. Cf., R. Shlomoh Yitzchak Levine, <i>Ha-Pardes</i>, Sivan 5705, p. 44 and R. Judah Yekutiel Greenwald, <i>Kol Bo al Avelut</i> (New York, 5716), p. 78, note 30. <i>Teshuvot Kappei Aharon</i>, no. 50, raises a similar question with regard to travel by sea since the ship may sail over the corpse of a drowned person. See also <i>Kol Bo al Avelut</i>, p. 79 and <i>ibid.</i>, note 31.The issue of <i>kohanim</i> flying as passengers in an airplane transporting a body in its baggage compartment is discussed by R. Moshe Feinstein, <i>Iggerot Mosheh, Yoreh De‘ah</i>, II, no. 164; <i>Teshuvot ve-Hanhagot</i>, III, no. 347; <i>Teshuvot Ḥelkat Ya‘akov</i>, III, nos. 109–111; <i>She‘arim Meẓuyanim be-Halakhah</i> 202:8; <i>Teshuvot Be’er Mosheh</i>, VII, <i>Kuntres Elektrik</i>, no. 87; <i>Teshuvot ve-Hanhagot</i>, I, no. 678; R. Samuel Woszner, <i>Teshuvot Shevet ha-Levi</i>, IX, no. 251; <i>Teshuvot ve-Herim ha-Kohen</i>, no. 61; <i>Teshuvot Ma‘aseh Ḥoshev</i>, IV, no. 29; R. Judah Gershuni, <i>Kol Ẓofayikh</i> (Jerusalem, 5740), pp. 425–432; <i>Tohorat ha-Kohanim</i> 11:6; and, more recently, by R. Yirmiyahu Menachem Cohen, author of <i>Teshuvot ve-Herim ha-Kohen</i>, in a contribution to <i>Sridim</i>, no. 21 (Nisan, 5763).<i>Teshuvot Har Ẓevi, Yoreh De‘ah</i>, no. 280 and R. Eliezer Waldenberg, <i>Ẓiẓ Eli‘ezer</i>, XII, no. 62, address the question of <i>kohanim</i> traveling in motor vehicles on roads built in close proximity to graves. Cf. R. Shlomoh Zalman Auerbach, <i>Minḥat Shlomoh</i>, I, no. 72, sec. 3, s.v. <i>agav</i>. R. Zevi Hirsh Orenstein, <i>Birkat Reẓeh</i>, no. 12; R. Joseph Saul Nathanson, <i>Sho’el u-Meshiv, Mahadura Telita’a</i>, II, no. 43; <i>Rav Pe‘alim</i>, III, index, no. 23; and R. Jacob Zevi Katz, <i>Or Torah</i>, ed. R. Pinchas Zelig Schwartz, II Adar 5692, no. 49. R. Moshe Schick, <i>Teshuvot Maharim Shik, Yoreh De‘ah</i>, no. 353, discusses the analogous situation of a railroad passing through a cemetery. An interesting question regarding whether it is permissible for a <i>kohen</i> to travel as a passenger on a train in which a body is transported in a freight car is discussed by R. Isaiah Zilberstein, <i>Tel Talpiyot</i>, ed. David Zevi Katzberg, vol. IX (Waitzen, 5661), no. 23, p. 287 and cited by <i>Meẓudat David</i> in his comments on <i>Kiẓur Shulḥan Arukh</i> 202 as well as by R. David Zevi Hoffmann, <i>Melammed le-Ho’il</i>, II, no. 133. That issue is also addressed by R. Saul Brach, <i>Sha’ul Sha’al</i> (Munkàcz, 5671), <i>Yoreh De‘ah</i>, no. 25, as well as by <i>Tohorat ha-Kohanim</i> 11:7. The problem in such situations arises from the fact that the train passes through tunnels and, in some railway stations, under an overhanging roof. The rabbinic journal <i>Yagdil Torah</i>, ed. R. Moshe Benjamin Tomashoff, VIII, no. 2, reports that it was the practice in New York City for coaches transporting bodies to cross the river on a ferry. The permissibility of <i>kohanim</i> to travel on the same ferry is addressed in that issue and also in the following issue, VIII, no. 3.</i> the reports of regular and ongoing cemetery overflight affecting vast numbers of travellers embarking from Ben Gurion airport have spawned a number of highly erudite halakhic treatments of this topic. Upon discovery of the problematic flight plans, a number of scholars formed a group styled as <i>Kanfei Yonah</i> for the purpose of investigating the various halakhic considerations with regard to possible priestly defilement in the course of such overflights. The findings of that group were published by Rabbis Mattisyahu ha-Kohen Halberstadt and Abraham Judah Goldmintz of Yeshivat Mir in Jerusalem in a pamphlet bearing the title "<i>Kanfei Yonah: Tisah me-al Kevarim</i>." An article discussing the same issues authored by R. Naphtali Baruch Spitzer appears in <i>Kol ha-Torah</i>, no. 52 (Nisan 5762), published by Agudath Israel of Great Britain. A responsum by R. Joseph Shalom Eliashiv and an accompanying article devoted to this topic authored by Rabbis David ha-Kohen Munk and Yohanan Alexander Lombard were published in <i>Yeshurun</i>, vol. X (Nisan 5762).2<i class="footnote">Rabbis Munk and Lombard are also the authors of a valuable compendium dealing with the laws of defilement as applicable to <i>kohanim</i>, the previously cited <i>Tohorat ha-Kohanim</i> (Jerusalem, 5762). That work is arranged in the form of a commentary on the relevant sections of <i>Yoreh De‘ah</i> and contains a second section presenting detailed discussions of particular issues. A second monograph by R. Moshe ha-Kohen Gross, <i>Tohorat ha-Kohanim ke-Hilkhatah</i> (Bet Shemesh, 5762), appeared shortly thereafter. The latter work is presented in the form of a digest of the basic principles and rules of defilement and for that reason may be highly useful to a student lacking a background in this somewhat arcane area. A second section contains detailed discussions of considerations affecting modern-day problems in this area.</i> An article by R. Jacob Epstein presenting a number of leniencies that would render such flights permissible to <i>kohanim</i> as well as a rebuttal by Rabbis Halberstadt and Goldmintz of the <i>Kanfei Yonah</i> group are included in <i>Teḥumin</i>, vol. XXII (5762). A further survey of a number of leniences offered by R. Yirmiyahu Menachem Cohen appears in a journal published by the Conference of European Rabbis, <i>Sridim</i>, no. 21 (Nisan, 5763). Much of that material was earlier published by Rabbi Cohen in his <i>Teshuvot ve-Herim ha-Kohen</i> (Jerusalem, 5741), no. 61.
  II. Tum'at Ohel—Defilement through Overhanging
  A corpse defiles by means of tactile contact and also, as stated in Numbers 19:14, defiles persons, vessels and artifacts present within the same tent. Moreover, as recorded by Rambam, <i>Hilkhot Tum'at Met</i> 1:10, persons and implements directly above or below a corpse also become defiled. Such defilement occurs regardless of the distance between the person or object and the corpse because a corpse defiles <i>ad coelum et ad infernos</i> unless there is an interposition (<i>ḥazizah</i>) consisting of an object not subject to defilement.3<i class="footnote">For sources of the position that even an object or substance subject to defilement may serve as an interposition when actually shaped as a tent, see Rambam, <i>Hilkhot Tum’at Met</i> 13:4; Rash (Rabbenu Shimshon), Rosh and R. Ovadiah Bartenura, <i>Oholot</i> 8:1; as well as <i>Mishnah Aḥaronah, Oholot</i> 8:1 and <i>Oholot</i> 7:2. See also <i>Ḥazon Ish, Oholot</i> 9:13. Cf., <i>Pnei Yehoshu‘a, Shabbat</i> 19b.</i> The Gemara, <i>Hullin</i> 125b, records a controversy with regard to whether defilement occurring in such fashion is in the category of tactile defilement or whether the basis of that defilement lies in the fact that the person or the object, regardless of its size, has in effect formed itself into a "tent" over the corpse.4<i class="footnote">As will be noted subsequently, there is yet a further ramification of the defilement occasioned by a tent: If the object overhanging the corpse is at least a square <i>tefaḥ</i> in area and there is a space of a cubic <i>tefaḥ</i> between the object and the corpse, the object acquires the status of a “tent” with the result that persons and implements beneath any part of the overhanging object become defiled.</i> Rabbenu Tam, <i>Sefer ha-Yashar</i>, no. 275, explains that the rule providing that a tent serves as an interposition preventing defilement from ascending <i>ad coelum</i> is based upon the verse "every one that comes into the tent and every thing that is in the tent shall be unclean seven days" (Numbers 19:14). The import of the text is twofold in nature: a) a tent serves to impart defilement to everything under its roof; and b) it serves to prevent defilement from extending beyond its confines.
  An artifact that does not touch the corpse but is spread above it not only becomes defiled but, if it is of the requisite size, has the status of a "tent" with the effect that persons, artifacts and foodstuffs under that object become defiled even though there is no contiguous contact with the corpse. At the same time, however, an item spread above the corpse in this manner, since it has the status of a "tent," has the effect of limiting defilement and causing defilement to be contained within the area beneath it with the result that anything above that person or object remains in a state of ritual purity.5<i class="footnote">A “tent” serves as an interposition blocking the ascent of defilement even if the tent is itself constructed of a material that is subject to defilement. See Rash (Rabbenu Shimshon) and Rosh, <i>Oholot</i> 8:1 and Rambam, <i>Hilkhot Tum’at Met</i> 13:4. Cf., however, R. Menachem Mendel Kargau, <i>Giddulei Taharah, Teshuvot</i>, no. 19, who demonstrates that <i>Tosafot, Shabbat</i> 27b, s.v. <i>ve-ein</i>, and Ra’avad, <i>Hilkhot Tum’at Met</i> 5:12, disagree with the view of Rash and Rosh. Cf., <i>Pnei Yehoshu‘a, Berakhot</i> 19a, s.v. <i>de-amar Rava</i>, who adopts the curious position that the principle that an object subject to defilement cannot serve as an interposition blocking defilement is rabbinic in nature but that it applies to a defiled tent as well. See also <i>Ẓiẓ Eli‘ezer</i>, XII, no. 62, sec. 4.</i> Applying that principle to an airplane, the lower surface of the plane could itself serve as an interposition6<i class="footnote">The terminology employed by Rash and Rosh, <i>Oholot</i> 8:1, is that a mat “pitched on a tent” serves as an interposition. <i>Teshuvot Har Ẓevi, Yoreh De‘ah, addenda</i>, no. 280, asserts that even the underside or floor of a tent susceptible to defilement serves as an interposition. See also <i>Ẓiẓ Eli’ezer</i>, XII, no. 62, sec. 4.</i> preventing defilement from entering and affecting anyone or anything within the plane.
  However, the Mishnah, <i>Oholot</i> 8:5, posits a number of exceptions to that rule. Included among those exceptions are a person, animal or artifact "leaping" from place to place, a flying bird, a flapping cloak and a ship moving on the water. Persons, animals or objects encompassed in that category do not constitute a "tent" that serves to prevent ascension of defilement <i>ad coelum</i> or to convey defilement to all objects beneath. Rambam, in his <i>Commentary to the Mishnah, Oholot</i> 8:11, and in <i>Hilkhot Tum'at Met</i> 13:5, explains that this provision is rooted in the consideration that members of this class do not have the status of a "durable tent" (<i>ohel ha-mitkayyem</i>). R. Ezekiel Landau, <i>Teshuvot Noda bi-Yehudah, Mahadura Tinyana, Oraḥ Hayyim</i>, no. 30, amplifies that characterization by noting that a cloak billowing through the air is not grounded in any way but is suspended in the air by the wind and hence provides no shelter to that which is below; a moving ship and a flying bird do not remain in a fixed position and cannot be described as forming a protective "tent" over anything underneath.
  <i>Tiferet Yisra'el, Bo'az, Oholot</i> 8:6, declares that although members of this class do not have the status of a "tent" even for purposes of constituting an interposition, nevertheless, they themselves do become defiled. That is indeed the position of a host of early-day authorities.7<i class="footnote">See sources cited by Rabbis Halberstadt and Goldmintz, <i>Kanfei Yonah</i>, p. 8 and <i>idem, Teḥumin</i>, XXII (5762), 507, note 8. However, one early-day authority, Rabbenu Shimshon (Rash), <i>Tohorot</i> 4:3, maintains that members of this class neither constitute a “tent” nor do they themselves become defiled. In effect, Rash maintains that a flying object is not susceptible to defilement as a “tent” or overhanging object. Thus, the passenger in the airplane, who is also in motion, cannot become defiled. That is also the position of Rash, <i>loc. cit.</i>; however, Rosh contradicts that view in his comments on <i>Nazir</i> 55a, s.v. <i>ve-ha-tanya</i>, and in his <i>Tosafot ha-Rosh, Berakhot</i> 19a, s.v. <i>rov</i>. The theory underlying Rash’s position in difficult to fathom. He presumably maintains that defilement extends <i>ad coelum</i> only in the presence of an overhanging tent. Hence, since a flying object does not constitute an overhanging “tent,” even that object cannot become defiled. Cf., R. Chaim ha-Levi Soloveitchik, <i>Ḥiddushei Rabbenu Ḥayyim ha-Levi al ha-Rambam, Hilkhot Tum’at Met</i> 11:5. See Rabbi Halberstadt, <i>Kanfei Yonah</i>, p. 9, note 4. Rabbi Spitzer, <i>Kol ha-Torah</i>, no. 52, p. 179, cites numerous early-day authorities who contradict the view of Rash. <i>Teshuvot Kappei Aharon</i>, no. 25, sec. 14 and no. 50; <i>Ḥazon Ish, Tohorot</i> 4:13 and <i>Yoreh De‘ah</i> 211:9; and R. Yosef Shalom Eliashiv, <i>Yeshurun</i>, X (Nisan 5762), 566f., all rule contrary to the position of Rash. R. David Samuel Pardo, in his commentary on the <i>Tosefta, Ḥasdei David, Tohorot</i> 3:14, also expresses astonishment with regard to Rash’s position.Citing the comments of Rash and Rosh, <i>Oholot</i> 8:5, regarding a “house on a boat,” <i>Kappei Aharon</i>, no. 50, asserts that, even according to Rash, a “flying” object is immune to defilement only if there is no “roof” over that object; if, however, the flying object is covered by its own roof, even if the roof itself is moving, it does become defiled by the corpse below the flying object. Thus, a <i>kohen</i> in an airplane that overflies a cemetery, asserts <i>Kappei Aharon</i>, becomes defiled because the plane is enclosed on top.R. Eleazer Moshe ha-Levi Horowitz of Pinsk, <i>Teshuvot Ohel Mosheh</i>, II, no. 122, develops the novel view that even according to Rash, since there is no interposition between himself and the corpse, a <i>kohen</i> who leaps over a corpse transgresses the prohibition against “entering” the tent containing a corpse even though he does not transgress the prohibition against becoming defiled. The prohibition against actual defilement is formulated in Leviticus 21:1; the verse “upon a dead body he shall not come” (Numbers 6:6) is understood by the Gemara as referring to entering into a tent in which a corpse is present and, according to <i>Ohel Mosheh, Nazir</i> 42a, constitutes a transgression even if such entry does not lead to defilement. That thesis is also tentatively advanced by R. Elchanan Wasserman, <i>Koveẓ Shemu‘ot, Ḥullin</i>, sec. 31, and is reflected in the comments of R. Chaim Ozer Grodzinski, <i>Teshuvot Aḥi‘ezer</i>, III, no. 65, secs. 5–7.</i> An airplane flying through the sky is certainly comparable to a ship sailing in the sea and a bird flying in the air. Accordingly, since an airplane is not a "tent" but does itself become defiled, it cannot serve as an interposition preserving persons within the plane from defilement. That fundamental point was noted in the early days of airplane travel by R. Aaron Epstein, <i>Teshuvot Kappei Aharon</i> (Munkàcz, 5693), nos. 25 and 50, and repeatedly confirmed in the intervening decades by a host of authorities.8<i class="footnote">See <i>Ḥazon Ish, Yoreh De‘ah</i> 211:9, <i>Even ha-Ezer</i> 144:9 and <i>Oholot, addenda</i>; <i>Teshuvot Har Ẓevi, Yoreh De‘ah</i>, no. 280; <i>Teshuvot Ḥelkat Ya’akov</i>, III, no. 209; <i>Yerushat Pleitah</i>, no. 34; <i>Teshuvot ve-Hanhagot</i>, III, no. 347; and R. Yosef Shalom Eliashiv, <i>Yeshurun</i>, X (Nisan 5762), 566–567.</i>
  III. Ohel Zaruk—A "Thrown Tent"
  Despite the unopposed statement of the Mishnah, <i>Oholot</i> 8:5, declaring that a person or object leaping from place to place, a flying bird, a flapping garment and a boat moving upon water are not interpositions for purposes of defilement, the Gemara, <i>Eruvin</i> 30b, <i>Haggigah</i> 25a, <i>Gittin</i> 8b and <i>Nazir</i> 55a, cites a controversy recorded in a <i>beraita</i> regarding a similar but substantively different situation, "If one enters the land of the gentiles in a box, chest or cupboard, Rabbi [Judah the Prince rules that] he is defiled and R. Jose the son of R. Judah [rules that] he [remains] pure." The Gemara analyzes that dispute as a controversy with regard to whether or not an <i>ohel zaruk</i>, i.e., a "cast tent" or a "thrown tent," enjoys the halakhic status of a tent.9<i class="footnote">See R. Jacob Reischer, <i>Teshuvot Shevut Ya‘akov</i>, I, <i>Yoreh De‘ah</i>, no. 85 and II, <i>Yoreh De‘ah</i>, no. 88 as well as <i>Pnei Yehoshu‘a, Sukkah</i> 21a, who maintain that all agree that in terms of biblical law a “thrown tent” has the status of a tent but that R. Judah maintains that a “thrown tent” does not constitute an interposition for purposes of defilement by virtue of rabbinic decree. See also <i>infra</i>, note 11.</i> The question is equally applicable to a person who is transported over a grave in a box or other container. If a "thrown tent" is not a tent, the "box, chest or cupboard" cannot function as an interposition and the person transported in that manner is subject to the rabbinically legislated defilement attendant upon one who exits the Land of Israel and enters the "land of the gentiles" or to the biblically ordained defilement occasioned by traversing a corpse or a grave.10<i class="footnote">Cf., <i>Tiferet Yisra’el, Oholot, Yakhin</i> 8:10, and <i>Sefat Emet, Sukkah</i> 21a, who assert that all agree that even an <i>ohel zaruk</i> serves as an interposition with regard to an underlying corpse or grave. The controversy, they contend, is limited to whether an <i>ohel zaruk</i> constitutes an interposition with regard to defilement associated with the “land of the gentiles” because rabbinic decree pronounced the air itself to be defiled. That position is rejected by all other authorities and appears to be contradicted by the discussion of the Gemara, <i>Eruvin</i> 30b. Moreover, even those authorities concede that a “flying” tent, as described in <i>Oholot</i> 8:5, does not serve as an interposition for any type of defilement.</i> However, if such objects are indeed "tents" they serve as an interposition11<i class="footnote">A tent serves as an interposition only if the substance of which the tent is fashioned itself has not become defiled. Thus, if a “thrown tent” qualifies as a tent, the “box, chest or cupboard” that serves as an interposition does so only if it is of a size that renders it immune to defilement. See <i>Encyclopedia Talmudit</i>, I, 238. Discussion of the application of the principle of <i>ohel zaruk</i> to an airplane is germane only if it is determined that the airplane itself is not subject to defilement. See Rabbis Halberstadt and Goldmintz, <i>Teḥumin</i>, X, 505.</i> and hence, since the person transported in that manner has not physically set foot on defiled ground nor been in a tent resting thereon, he remains in a state of ritual purity even though he is no longer within the confines of the Land of Israel. Similarly, if such an object is itself a "tent," a person enclosed within such an object does not himself become a "tent" over a corpse or a grave. Rambam, <i>Hilkhot Tum'at Met</i> 11:5, followed by virtually all early-day authorities,12<i class="footnote">Cf., however, Rashba, <i>Eruvin</i> 31a, who rules that an <i>ohel zaruk</i> does have the status of a tent.</i> rules that a "thrown tent" does not have the halakhic status of a tent.13<i class="footnote">Rambam’s view with regard to the status of an <i>ohel zaruk</i> or a “tent” has been the subject of differing interpretations. Rambam, <i>Hilkhot Tum’at Met</i> 11:5, rules that a person entering the “land of the gentiles” in a “chest, a box or a cupboard” becomes defiled “for an <i>ohel zaruk</i> is not a tent.” However, in <i>Hilkhot Nezirut</i> 5:18, Rambam rules that a person who is placed inside a closed box and brought into a tent containing a corpse becomes defiled only if the covering of the box is opened. Thus, Rambam clearly indicates that so long as the container is closed the person is not defiled. A similar ruling is recorded by Rambam in <i>Hilkhot Avel</i> 3:6. The latter ruling seemingly reflects the notion that an <i>ohel zaruk</i> is indeed a tent.<i>Mishneh le-Melekh, Hilkhot Tum’at Met</i> 11:1, resolves the contradiction by positing the thesis that an <i>ohel zaruk</i> lacks the status of a “tent” only in the sense that an <i>ohel zaruk</i> does not qualify as a “tent” that prevents defilement when overhanging a corpse; if, however, an <i>ohel zaruk</i> is brought into a tent already sheltering a corpse but does not itself overhang the corpse, it does indeed serve as an interposition preventing defilement of anything within the <i>ohel zaruk</i>. The reason, explains <i>Mishneh le-Melekh</i>, is that everything within the tent is defiled because the Torah prescribes that the tent is to be regarded as totally filled with defilement and for that reason any interposition, including an interposition even of an object that is itself not a “tent,” is sufficient to preserve anything contained within such an object from defilement so long as it prevents the defiled “air” of the tent from entering.However, <i>Mishneh le-Melekh</i>’s distinction is insufficient to resolve an additional contradiction posed by a ruling recorded by Rambam in <i>Hilkhot Parah Adumah</i> 2:7. In reporting the extraordinary precautions taken to assure that the <i>kohen</i> who burned the <i>parah adumah</i> was cleansed of any possible defilement, Rambam records the statement of the Gemara reporting that those who purified that <i>kohen</i> prior to his performance of that ritual were transported to the requisite site upon boards placed upon the backs of oxen. Those planks were designed to serve as an interposition preventing defilement that might have resulted had the person being transported passed over an unknown grave. In that ruling Rambam apparently accepts the principle that an <i>ohel zaruk</i> does indeed constitute a “tent” for purposes of interposition over a corpse or grave. A number of authorities, including <i>Teshuvot Erez Ẓevi</i>, I, no. 93, <i>Melammed le-Ho’il</i>, no. 133, and <i>Yerushat Peleitah</i>, no. 34 (the latter two citing <i>Sho’el u-Meshiv, Mahadura Tinyana</i>, II, no. 43), suggest that it is only with regard to a corpse that an <i>ohel zaruk</i> does not serve as an interposition but that an <i>ohel zaruk</i> does serve as an interposition with regard to a grave. See also Rabbis Halberstadt and Goldmintz, <i>Kanfei Yonah</i>, p. 18, note 96. Cf. also the comments of <i>Tosafot</i>, <i>Eruvin</i> 30b, s.v. <i>le-mar</i>, and the analysis of R. Ezekiel Landau, <i>Noda bi-Yehudah</i>, <i>Oraḥ Ḥayyim, Mahadura Tinyana</i>, no. 30. Ritva, <i>Eruvin</i> 31a, advances the position that only a <i>keli</i>, i.e., a vessel or utensil, does not serve as an interposition when it is an <i>ohel zaruk</i> but wood that has not been fashioned into a <i>keli</i>, since it is not subject to defilement under any circumstances, does serve as an interposition even when it constitutes an <i>ohel zaruk</i>. <i>Sidrei Tohorot, Oholot</i> 2:3, s.v. <i>ma’i</i> (p. 58b) and ibid. 6:1, s.v. <i>o</i> (p. 98b), dispels the contradiction in Rambam’s rulings by suggesting that Rambam is in agreement with Ritva. <i>Mishneh le-Melekh</i> himself observes that many stringencies were introduced in preparation of the <i>parah adumah</i> that were halakhically unnecessary. Use of planks even though they constitute an <i>ohel zaruk</i> and could not serve as an interposition, he contends, was designed simply to reinforce the lesson that extreme care had to be taken lest the officiants become defiled.<i>Mishneh le-Melekh</i> further observes that an <i>ohel zaruk</i> is not a “tent” only so long as it rests upon the back of an animal or is carried by a person but that upon coming into contact with the ground it does acquire the status of a tent even while being dragged upon the ground. Cf., however, <i>Tosafot, Nazir</i> 55a. s.v. <i>ve-ha-tanya</i>, who appear to adopt a position at variance from that of <i>Mishneh le-Melekh</i>. <i>Mishneh le-Melekh</i> suggests, perhaps somewhat improbably, that since in <i>Hilkhot Nezirut</i> Rambam omits any reference to the container being suspended in the air, his ruling to the effect that the container constitute a “tent” should be understood as referring solely to a “chest, a box or a cupboard” placed on the ground. Cf., <i>Tiferet Yisra’el</i>, <i>Oholot, Yakhin</i> 8:10, who rejects that distinction. <i>Teshuvot Birkat Reẓeh</i>, no. 12, endeavors to demonstrate that, even according to <i>Mishneh le-Melekh</i>, this is so only if the container in its entirety rests on the ground but not, for example, with regard to a railway car suspended on wheels. That distinction is, however, disputed by <i>Ẓiẓ Eli‘ezer</i>, XII, no. 62, sec. 2 and was clearly not even entertained by <i>Teshuvot Maharam Shik, Yoreh De‘ah</i>, no. 353. <i>Birkat Reẓeh</i> himself adopts a diametrically opposed position in asserting that the controversy is limited to a “tent” transported by a person or animal but that all concede that a “tent” that is itself in motion does not have the status of a tent, even if it is in direct contact with the ground. <i>Mishneh le-Melekh</i>’s position is; accepted by <i>Teshuvot Zikhron Yosef</i>, no. 23 and <i>Meẓudat David</i> in his commentary on <i>Kiẓur Shulḥan Arukh</i> 202 and also by R. David Zevi Katzberg, <i>Tel Talpiyot</i>, IX, 287, as well as by <i>Ẓiẓ Eli‘ezer</i>, XII, no. 22, sec. 2 and apparently also by <i>Sho’el u-Meshiv, Mahadura Telita’a</i>, II, no. 43. However, <i>Teshuvot Maharam Shik</i>, <i>Yoreh De‘ah</i>, no. 353, regards that position to be a matter of dispute among early-day authorities.However, <i>Teshuvot Shevut Ya‘akov</i>, I, no. 85, offers an entirely different resolution of the contradiction between Rambam’s rulings. As noted earlier, <i>Shevut Ya‘akov</i> asserts that it is only by virtue of rabbinic decree that an <i>ohel zaruk</i> does not constitute an interposition but that in terms of biblical law it is indeed a tent. Rambam’s statements in <i>Hilkhot Nezirut</i> and <i>Hilkhot Avel</i> declaring that defilement takes place only upon opening the container is made in conjunction with a statement concerning punishment incurred by virtue of biblical culpability whereas the statement in <i>Hilkhot Tum’at Met</i> occurs in the form of a ruling regarding the status of a person who enters the “land of the gentiles.” According to <i>Shevut Ya‘akov</i>, Rambam’s declaration that such a person becomes ritually defiled refers only to defilement by virtue of rabbinic decree and indeed all defilement associated with presence in the “land of the gentiles” is by virtue of rabbinic decree. See also the gloss of <i>Gilyon Maharsha</i> to <i>Shakh, Yoreh De‘ah</i> 372:2 and <i>Pnei Yehoshu‘a, Sukkah</i> 21a, s.v. <i>Be-Tosafot</i>, as well as the resolution offered by <i>Sefat Emet, Sukkah</i> 21a. Cf. also, <i>Teshuvot Ereẓ Ẓevi</i>, I, no. 93.Each of these analyses of Rambam’s ostensibly conflicting rulings would yield the conclusion that, even for Rambam, a <i>kohen</i> may not enter a cemetery in an <i>ohel zaruk</i>. However, <i>Tiferet Yisra’el</i>, <i>Oholot, Yakhin</i> 8:10, explains that an <i>ohel zaruk</i> is indeed an interposition insofar as defilement is concerned but, nevertheless, one who enters the “land of the gentiles” in an <i>ohel zaruk</i> becomes defiled because the “air” of the “land of the gentiles” permeates the <i>ohel zaruk</i>.The view of <i>Tiferet Yisra’el</i> may have been accepted by <i>Teshuvot ha-Rivad</i>, no. 70. In a short, cryptic responsum that author permits a <i>kohen</i> to fly over a cemetery because “that airplane is no worse than a box, chest or cupboard which interpose in the face of defilement as is spelled out in Rambam, <i>Hilkhot Avel</i> and [<i>Hilkhot</i>] <i>Nezirut</i>.” <i>Teshuvot ha-Rivad</i> appears to be oblivious to the seemingly contradictory nature of those two rulings. R. Israel Freund, <i>Yerushat Peleitah</i>, no. 34, suggests that Rivad follows <i>Tiferet Yisra’el</i> in understanding Rambam as ruling that an <i>ohel zaruk</i> does indeed constitute an interposition and that his ruling with respect to a <i>kohen</i> who enters the “land of the gentiles” in an <i>ohel zaruk</i> is based upon the notion that it is the “air” itself that constitutes the source of defilement in “the land of the gentiles.” Hence, since air penetrates an <i>ohel zaruk</i>, the <i>ohel zaruk</i> cannot serve as an interposition preventing defilement associated with entrance into the “land of the gentiles.”</i>
  How does a "thrown tent" differ from, for example, a flapping garment with the result that there is controversy with regard to the former's status as a tent but the latter is not regarded as a tent by any of the <i>Tana'im</i> of the Mishnah?14<i class="footnote">Moreover, commenting on <i>Oholot</i> 16:1, as cited by the Gemara, <i>Shabbat</i> 17a, <i>Tosafot Yeshanim</i>, <i>ad locum</i>, demonstrate that, in contradistinction to the phenomena described in <i>Oholot</i> 8:5, an <i>ohel zaruk</i>, although not a “tent” for purposes of interposition, is nevertheless a “tent” for purposes of extending defilement to all persons and objects under its “roof.” For an elucidation of the rationale underlying that distinction see <i>Ḥiddushei Rabbenu Ḥayyim ha-Levi al ha-Rambam</i>, <i>Hilkhot Tum’at Met</i> 11:5.</i> And, more significantly, how does the distinction impact upon the propriety of <i>kohanim</i> overflying cemeteries in an airplane? <i>Tosafot, Eruvin</i> 31a, <i>Haggigah</i> 25a and <i>Nazir</i> 25a, as well as Rabbenu Hananel and Rashba, in their respective commentaries on the discussion in <i>Eruvin</i> 30b, explain that since the flapping cloak and the flying bird are "tents" actually flying through the air or moving over water, there is universality of opinion that, while actually in movement, a flying object does not have the characteristics of a "tent." The controversy with regard to an <i>ohel zaruk</i>, those authorities assert, is a disagreement with regard to the status of a "tent" that by virtue of its nature does fly though the air, but the disagreement is confined to the status of such an object when it is at rest.15<i class="footnote">As cited <i>supra</i>, note 13, <i>Mishneh le-Melekh, Hilkhot Tum’at Met</i> 11:1, further limits the controversy to a “tent” resting on an animal or carried by a person. According to <i>Mishneh le-Melekh</i>, when the object is actually on the ground, all concede that it has the halakhic status of a “tent.” Thus, for <i>Mishneh le-Melekh</i>, the controversy is whether an object reposing upon on an animal or a person, who although stationary is nevertheless capable of locomotion, is regarded as tantamount to having been placed upon the ground.</i> R. Jose the son of R. Judah ascribes the status of a tent to such an object during the periods in which it is stationary while R. Judah maintains that the object's inherent potential for movement through the air or over water removes it from the category of a "tent."
  <i>Tosafot</i>, in their comments on the discussions in <i>Eruvin, Haggigah</i> and <i>Nazir</i>, formulate a somewhat different distinction. According to <i>Tosafot</i>, the distinction is between a "tent" cast through the air or water and a tent transported by humans or beasts of burden. According to <i>Tosafot</i>, the controversy is limited to a "tent" that itself remains stationary but is nevertheless in motion because it moves in tandem with, and secondarily to, the propelling motion of a person or an animal. Again, the controversy is whether or not an object in the process of being moved in such a fashion possesses the defining attributes of a "tent"; all agree, however, that an independently propelled object lacks the characteristics of a "tent."16<i class="footnote">Citing <i>Tosafot, Sukkah</i> 21a, s.v. <i>she-ein</i>. <i>Sho’el u-Meshiv, Mahadura Tinyana</i>, II, no. 43, argues that an object specifically designed to be propelled, e.g., a train, does have the status of a tent. However, Rabbis Halberstadt and Goldmintz, <i>Kanfei Yonah</i>, p. 16, note 88, assert that <i>Sho’el u-Meshiv</i>’s view is limited to train cars and the like that are designed to move on tracks permanently affixed to the ground but not to airplanes that fly through the air. Cf., <i>Ẓiẓ Eli‘ezer</i>, XII, no. 62, sec. 7, who understands <i>Sho’el u-Meshiv</i>’s categorization to include any vehicle, including an automobile, designed to move on the ground. Rabbis Halberstadt and Goldmintz point to the fact that birds and ships are not even in the category of an <i>ohel zaruk</i> despite the fact that boats are designed to sail in rivers and oceans and birds naturally fly through the air.</i> <i>Tosafot</i>'s distinction is also reflected, <i>inter alia</i>, in the comments of Rashi, <i>Gittin</i> 8b, <i>Tosafot Yeshanim, Shabbat</i> 17a, <i>Tosafot Rabbenu Perez</i> and Ritva, <i>Eruvin</i> 30b, as well as those of Rosh, Me'iri, and <i>Tosafot Rabbenu Todros, Nazir</i> 55a. The distinction is amplified by Rabbenu Tam in his <i>Sefer ha-Yashar</i>, no. 275, with the explanation that the connotation of "tent" is of an object that is stationary; a bird in flight, a garment blown through the air by the wind and a floating boat are in constant (and essentially uncontrolled) motion and hence do not "rest" upon the corpse or provide it with shelter as is the nature of a tent. The controversy regarding an <i>ohel zaruk</i>, according to Rabbenu Tam, arises from the fact that the motion of the object can be controlled at any moment simply by stopping the person or animal carrying the object.17<i class="footnote"><i>Teshuvot Ereẓ Ẓevi</i>, I, no. 93, seems to suggest that since it is within the capacity of the pilot to stop the plane it therefore follows that, for <i>Sefer ha-Yashar</i>, an airplane should have the status of an <i>ohel zaruk</i>. However, it must be noted, unlike an object carried by a person or by an animal, it is impossible to cause a plane to come to a halt <i>in situ</i>. Cf., Rabbis Halberstadt and Goldmintz, <i>Kanfei Yonah</i>, p. 16, note 86. Even a helicopter that can be made to hover over a particular spot would nevertheless constitute an <i>ohel zaruk</i>. Cf., however, R. Shalom Mordecai Shwadron, <i>Da‘at Torah, Oraḥ Ḥayyim</i> 626:3, cited in the text, who maintains that a dirigible whose motion or lack of motion is controlled by the pilot is not an <i>ohel zaruk</i> when in a stationary position. See also <i>infra</i>, note 20.</i> Thus, according to both Rabbenu Hananel and <i>Tosafot</i>, there is no question that an <i>ohel zaruk</i> does not have the status of a "tent" while it is flying through the air.18<i class="footnote">See, however, <i>Teshuvot Shevut Ya‘akov</i>, I, no. 85; cf., <i>Teshuvot Birkat Reẓeh</i>, no. 12; and <i>Sedei Ḥemed</i>, I, <i>Ma‘arekhet ha-Alef</i>, sec. 228.</i> Moreover, <i>Shulḥan Arukh, Oraḥ Hayyim</i> 409:1, rules definitively that a <i>kohen</i> may not enter a cemetery even in an <i>ohel zaruk</i>. It is for that reason that a number of authorities, including R. Moshe Feinstein, <i>Iggerot Mosheh, Yoreh De'ah</i>, II, no. 164, and Rabbi Eliashiv, in the letter published in <i>Yeshurun</i>, rule unequivocally that a <i>kohen</i> may not fly over a cemetery.19<i class="footnote">R. Yirmiyahu Menachem Cohen, <i>Teshuvot ve-Herim ha-kohen</i>, no. 61 and <i>Sridim</i>, no, 21, suggests that a “thrown tent” loses its status as a “tent” only when thrown by an external force. However, an airplane propelled by its own force, he suggests, is not deemed to be a “thrown tent.” He similarly argues that a self-propelled object does not have the status of a “flapping cloak” and hence retains its status as a “tent.” However, as noted by Rabbi Cohen in his contribution to <i>Sridim</i>, that notion, developed in a somewhat different context, is rejected by R. Shlomoh Zalman Auerbach, <i>Minḥat Shlomoh</i>, I, no. 72, addendum, sec. 1.</i>
  Parenthetically, R. Shalom Mordecai Schwadron, <i>Da'at Torah, Oraḥ Hayyim</i> 626:3, reports that he was asked whether it is permissible to eat or sleep in a <i>sukkah</i> while a dirigible hovers above the <i>sukkah</i>. The general rule, as formulated by the Gemara, <i>Sukkah</i> 21b, is that a <i>sukkah</i> within a "tent," i.e., a <i>sukkah</i> over which a "tent" is suspended, is disqualified from use as a <i>sukkah</i>. The issue, then, is whether a dirigible has the status of a "tent." <i>Da'at Torah</i> compares the dirigible to a floating boat that does not have the status of a tent even while standing immobile in the water or a billowing garment that does not have the status of a tent even when it is temporarily suspended in a stationary position. The boat regains the status of a tent only when it is immobilized by being tied to the ground and the garment similarly becomes a tent only if it is secured to the ground by means of a stone or a weight. Nevertheless, <i>Da'at Torah</i> notes that the dirigible is controlled by the pilot who determines whether it will move through the sky or remain stationary. Hence, according to <i>Tosafot</i>'s distinction between the phenomena enumerated in <i>Oholot</i> 8:5 and an <i>ohel zaruk</i>, the dirigible, since its potential motion is controlled by a human being, is not comparable to the objects enumerated in <i>Oholot</i> 8:5 but is in the category of an <i>ohel zaruk</i> and, accordingly, does constitute a "tent" when "at rest" in a stationary position.20<i class="footnote">Cf., however, R. Gershon Chanoch Leiner, <i>Sidrei Tohorot, Oholot</i> 8:8 (p. 134b), s.v. <i>she-ha-of</i>, who presents a somewhat different analysis of why a billowing garment, a flying bird or a ship are not even in the category of an <i>ohel zaruk</i>. <i>Sidrei Tohorot</i> maintains that as indicated by the Mishnah, <i>Oholot</i> 8:5, a ship even while stationary and floating in the water acquires the status of a tent until it is tethered in a manner that anchors it firmly in place. He explains that while the unanchored ship, as well as the flying bird, will of necessity move from one place to another, in contradistinction, a person or animal standing on <i>terra firma</i> must exercise a considered act of will in order to move and already retains the option of remaining <i>in situ</i>. It would seem to this writer that, according to <i>Sidrei Tohorot</i>’s analysis, a dirigible is comparable to a floating ship, <i>viz.</i>, it cannot remain in one place indefinitely. When its fuel is expended the dirigible will be effected by the wind and by gravity quite as a ship will sooner or later be carried by flowing water. The pilot can no more decide to remain perpetually motionless than can a bird determine that it will remain in a fixed position in the air.</i> For that reason <i>Da'at Torah</i> advises that the <i>sukkah</i> not be used until the dirigible moves on. Rabbi Spitzer, <i>Kol ha-Torah</i>, p. 178, observes that <i>Da'at Torah</i>'s comments are, obviously, limited in their application to a dirigible, and presumably to a hovering helicopter as well, but do not apply to an airplane that cannot remain suspended at a fixed point in the sky.
  It should also be pointed out that, according to <i>Tosafot</i>, a piloted dirigible, even if not comparable to a flapping garment or a flying bird, when in motion, would minimally have the status of an <i>ohel zaruk</i> which, as noted earlier, for purposes of normative Halakhah, does not have the status of a "tent" and hence would not prevent defilement of the <i>kohen</i>. However, as noted earlier, although an <i>ohel zaruk</i> is not a "tent" for purposes of interposition, it nevertheless has the status of a "tent" for purposes of extending defilement to everything under its cover. It may well be the case that an <i>ohel zaruk</i> also has the status of a "tent" for the purpose of disqualifying anything underneath from use as a <i>sukkah</i>. That would certainly seem to be the case according to the earlier-cited analysis of R. Chaim ha-Levi Soloveitchik, <i>Hiddushei Rabbenu Hayyim ha-Levi al ha-Rambam, Hilkhot Tum'at Met</i> 11:5. R. Chaim explains that the objects enumerated in <i>Oholot</i> 8:5 are not at all encompassed within the halakhic category of a "tent" because they lack the essential quality of a tent whereas an <i>ohel zaruk</i> is indeed a "tent" but, unlike other tents, an <i>ohel zaruk</i> does not function as an interposition simply because its motion renders its position transitory and, in effect, an interposition that is inherently transitory is not an interposition.
  Rabbi Epstein cites an opinion of Ritva, <i>Eruvin</i> 30b, in dismissing the contention that an airplane does not serve as an interposition by virtue of being an <i>ohel zaruk</i>. Ritva maintains that the rule that an <i>ohel zaruk</i> does not serve as an interposition is limited to an <i>ohel zaruk</i> that is itself subject to defilement as a vessel or utensil but that, for example, a wooden <i>ohel zaruk</i> that cannot become defiled because it is not a utensil, i.e., a flat board, does serve as an interposition. Much earlier, <i>Teshuvot Erez Ẓevi</i>, no. 73, s.v. <i>hetter gimmel</i>, citing Ritva's position, suggested that a thin layer of wood placed over the floor of the airplane would serve as a interposition. Rabbi Epstein notes that the travelers flying in the passenger cabin sit atop another compartment used for stowing luggage and freight. The passenger cabin is separated from the lower compartment by a floor made of a variety of substances, the major portion of which, he asserts, cannot become defiled. Accordingly, he maintains that the floor of the passenger cabin constitutes an interposition serving to prevent defilement of the passengers.21<i class="footnote">See also <i>Teshuvot Har Ẓevi, Yoreh De’ah</i>, no. 280 and <i>Ẓiẓ Eli‘ezer</i>, XII, no. 62, secs. 8–9. Cf., <i>infra</i>, note 22.</i> Nevertheless, as demonstrated by R. Zevi Pesach Frank, <i>Teshuvot Har Ẓevi, Yoreh De'ah, addenda</i>, no. 280, the majority of early-day authorities reject Ritva's position with regard to this matter. In addition, the question of whether or not items containing at least some quantity of metal are subject to defilement will be discussed subsequently.
  R. Aryeh Zevi Frommer, <i>Teshuvot Erez Ẓevi</i>, I, no. 93, points out that even if the floor of the passenger cabin is composed of materials that cannot be defiled and hence would serve as an interposition preventing defilement from ascending to the cabin above, nevertheless, the roof of the passenger cabin, which is made of metal, protrudes over the edges of the floor.22<i class="footnote"><i>Iggerot Mosheh, Yoreh De‘ah</i>, II, no. 164, somewhat ambiguously remarks that although the plane is not made of metal, nevertheless, the plane “in its entirety is a single vessel.”</i> Hence, the roof of the passenger compartment serves as a tent that causes defilement to ascend through the margins of the plane to the entire passenger cabin, causing the passengers to become defiled. <i>Teshuvot Erez Ẓevi</i> dismisses that consideration with the argument that the defilement must first rise and enter the passenger compartment and only subsequently can it diffuse throughout the entire compartment. But since the plane travels at such high speed, argues <i>Erez Ẓevi</i>, there is no time for the defilement to diffuse.
  <i>Teshuvot Erez Ẓevi</i>'s argument is problematic, to say the least. He apparently treats defilement as if it is reified in a manner comparable to a physical vapor or the like.23<i class="footnote">Cf., the bracketed comments of <i>Teshuvot Birkat Reẓeh</i>, no. 12, s.v. <i>amnam</i>, who in a different context employs somewhat similar language but has no occasion to discuss the question of simultaneity.</i> In actuality, defilement is a metaphysical concept and while, at times, the language of physics is employed to describe metaphysical phenomena, there is no reason to assume that a metaphysical phenomenon such as diffusion of defilement does not occur instantaneously. Moreover, if the analogy of defilement to a diffusing vapor or the like is to be taken literally, there is no reason to assume that the defilement is left behind by the speeding plane. Smoke released within the passenger cabin, for example, would remain trapped in the compartment and would travel <i>in situ</i> at the same speed as the plane. If it is assumed that sources of defilement are governed by laws analogous to those of physics, defilement should similarly be trapped and hence continue to diffuse within the speeding passenger cabin.
  Rabbi Epstein also cites an opinion advanced separately by <i>Sefat Emet, Sukkah</i> 21a, and <i>Tiferet Yisra'el, Oholot</i> 8:10, to the effect that an <i>ohel zaruk</i> is not a "tent" only in the sense that it does not prevent the "air" of the "land of the gentiles" from penetrating and mixing with the "air" of the container but that an <i>ohel zaruk</i> does serve as an interposition preventing the defilement of a corpse from penetrating the "tent."24<i class="footnote"><i>Tiferet Yisra’el</i>’s view is also accepted by <i>Teshuvot Zikhron Yosef</i>, no. 23; <i>Teshuvot Melammed le-Ho’il, Yoreh De‘ah</i>, no. 133; <i>Meẓudat David</i> in his commentary on <i>Kiẓur Shulḥan Arukh</i> 202; R. Israel Freund, <i>Yerushat Peleitah</i>, no. 34; and <i>Ẓiẓ Eli‘ezer</i>, XII, no. 62, sec. 3.</i> He further cites the opinion of R. Joseph Saul Nathanson, <i>Sho'el u-Meshiv, Mahadura Telita'a</i>, II, nos. 42 and 43, who asserts that objects that are designed for use in a mobile state, e.g., railroad cars, are regarded as "stationary" even while they are in motion.25<i class="footnote">See also <i>Ẓiẓ Eli‘ezer</i>, XII, no. 62, sec. 7.</i> If so, it follows that an airplane does not constitute an <i>ohel zaruk</i>.26<i class="footnote">See also <i>Tosafot, Sukkah</i> 21b, s.v. <i>she-ein lah keva</i> and <i>Kol Ẓofayikh</i>, p. 426.</i> Rabbi Yirmiyahu Menachem Cohen, <i>Teshuvot Ve-Herim ha-Kohen</i>, no. 61, cites Rashi's comment, <i>Nazir</i> 55a, explaining that an <i>ohel zaruk</i> does not have the status of a tent because "since it has been thrown, it has been removed from the status of a tent and acquires the status of a vessel." <i>Ve-Herim ha-Kohen</i> suggests that, although a moving "box, chest or cupboard" may neither have the characteristics of a tent nor perform the functions of a tent, an airplane, even in flight, fulfills all the functions of a tent and hence should not be regarded as having the status of an <i>ohel zaruk</i>. It should, however, be noted that those considerations do not affect the status of the plane as an object akin to a floating ship or the like that, as explained earlier, are not classified as "tents" for reasons quite distinct from those governing classification as an <i>ohel zaruk</i>.27<i class="footnote">Cf., however, the comments of <i>Sho’el u-Meshiv, Mahadura Telita’a</i>, II, no. 43.</i>
  IV. Keli ha-Ba be-Middah—Gargantuan Vessels
  Vessels and utensils are subject to defilement whereas structures or objects attached to the ground are not subject to defilement. The distinction lies in the fact that vessels and utensils are movable and can be transported from place to place whereas objects attached to the ground are immobile. Inordinately large objects may be immovable even if they are not attached to the ground. For purposes of the regulations governing defilement, objects are classified as vessels or utensils only if they are comparable to the "sack" described in Leviticus 11:32. According to rabbinic exegesis, the term "sack" serves as the paradigm for all vessels subject to defilement. The nature of a sack is that it can be transported "[when] full as well as [when] empty." Accordingly, only utensils that are not too heavy to be transported even when full are susceptible to defilement; gargantuan vessels that are not movable when full are treated as though they are rooted to the ground even when they are empty and hence cannot become defiled. The Mishnah, <i>Oholot</i> 8:3, declares that any utensil that holds forty <i>se'ah</i> is, by definition, too large to become defiled. The Mishnah further declares that since such utensils cannot become defiled they can also serve as an interposition preventing defilement from ascending <i>ad coelum</i>. Such an oversized utensil is termed a <i>keli ha-ba be-middah</i>. The dimensions of an airplane certainly seem to place it within that category.
  Nevertheless, an airplane does not qualify as a <i>keli ha-ba be-middah</i> for a number of reasons. In effect, an airplane is encompassed within the ambit of each of a number of exceptions to the rule of <i>keli ha-ba be-middah</i>:
  1. A round or oval vessel is subject to defilement regardless of its size since there is nothing to prevent it from moving to and fro.28<i class="footnote">Interestingly, Rabbis Munk and Lombard, <i>Yeshurun</i>, X, 560, note 21, suggest that, for purposes of <i>Shabbat</i> regulations, fashioning a utensil that is so heavy that it can never be moved may be considered as actually attaching the vessel to the ground and, accordingly, would constitute an act of construction comparable to the building of a “house.” If so, an airplane would have the status of a structure attached to the ground and by virtue of that consideration constitutes an interposition for purposes of defilement. Nevertheless they concede that, despite its weight, this cannot be the case with regard to a vehicle that is designed for transportation.</i> Although the airplane itself, despite its oval shape, does not roll from place to place, it rests on wheels which render it movable. Rabbis Munk and Lombard, <i>Yeshurun</i>, X, 560, suggest that the presence of wheels may negate the plane's status as a <i>keli ha-ba be-middah</i>.
  2. As noted by <i>Tosafot, Shabbat</i> 84a, s.v. <i>u-le-Hananyah</i>, the Mishnah, <i>Kelim</i> 15:1, declares that, regardless of size, utensils that are generally moved from place to place in conjunction with their designed use do not fall within the category of a <i>keli ha-ba be-middah. Hazon Ish, Yoreh De'ah</i> 211:8, however, inclines to the view that this provision is limited to utensils comparable to a "sack" in that such artifacts are designed to be transported by humans or animals but does not extend to objects such as automobiles or trains that cannot be "carried" from place to place.29<i class="footnote">See also <i>Ẓiẓ Eli‘ezer</i>, XII, no. 62, sec. 5. Cf., however, <i>Sha’ul Sha’al</i>, no. 225, who asserts that any object that moves from place to place as a result of human intervention falls within this exception. <i>Ḥazon Ish, Yoreh De‘ah</i> 211:8, also entertains that possibility with regard to automobiles. R. Chaim Meshullam Kaufman, <i>Petaḥ ha-Ohel</i> (Jerusalem, 5709), no. 5, asserts that the exception includes even wagons powered by steam and apparently assumes that no human involvement is necessary. Cf., <i>Ḥazon Ish, Yoreh De‘ah</i> 211:8, who remarks that a train driven by a steam engine is not to be regarded as a utensil moved by “human power.” See also R. Shlomoh Zalman Auerbach, <i>Minḥat Shlomoh</i>, I, no. 72, sec. 4, s.v. <i>be-zemano</i>, who observes that, even heavy, fuel-powered vehicles such as trains are to be regarded differently from utensils transported by people or animals but, be that as it may, automobiles are certainly to be regarded as utensils that may be carried from place to place. <i>Minḥat Shlomoh</i> argues that, unlike a train, an automobile is no different from a coach of earlier times in that, were gasoline not available, the “horseless carriage” might simply be hitched to a horse in the manner of a coach of days of yore.</i>
  3. <i>Tosafot</i>, <i>Shabbat</i> 44b, s.v. <i>mukhani</i>, and <i>Menaḥot</i> 31a, s.v. <i>shiddah</i>, demonstrate that the category of <i>keli ha-ba be-middah</i> does not apply to a utensil designed to be used for sitting or reclining (<i>midras</i>).30<i class="footnote">Although Rashi, <i>Shabbat</i> 44b, seems to disagree, <i>Tosafot, Menaḥot</i> 31a, explain Rashi’s comment in a manner that is compatible with their thesis. Cf., however, <i>Tosafot Yom Tov, Kelim</i> 24:4, who suggests that Rambam may disagree with <i>Tosafot</i>.</i> Thus, an airplane designed to transport passengers may be regarded as a utensil designed primarily for seating31<i class="footnote">Cf., however, <i>Minḥat Shlomoh</i>, I, no. 72, sec. 4 s.v. <i>akh</i>, who suggests precisely the opposite: seats attached to the plane may become part of the plane and lose their status as <i>midras</i>.</i> and hence cannot serve as an interposition.32<i class="footnote">This point is made by <i>Giddulei Taharah, Responsa</i>, no. 19, with regard to a <i>kohen</i> riding in a large carriage while being transported over a corpse. See also <i>Birkat Reẓeh</i>, no. 12 and <i>Ḥazon Ish, Yoreh De‘ah</i> 211:8. See, however, the consideration raised and sources cited <i>infra</i>, notes 64 and 65.</i>
  4. Most significantly, the rule regarding <i>keli ha-ba be-middah</i> applies only to implements made of wood or leather and to articles of clothing that are enumerated together with the "sack" in Leviticus 11:32 as subject to defilement. However, metal utensils that are not mentioned in that verse are susceptible to defilement regardless of size.33<i class="footnote">See <i>Kelim</i> 15:1 and <i>Oholot</i> 8:1.</i> The definition of "metal" for this purpose will be addressed in a subsequent section.
  V. Space of a Tefaḥ within the Grave
  Unlike the practice in most other countries in which the corpse is buried in a coffin and earth is shoveled directly upon the coffin, in Israel the body is laid to rest directly upon the earth. Layers of bricks or cinder blocks are placed in a rectangular shape around the body and are used to support a row of cement blocks or boards that is placed over the corpse. The result is that the earth shoveled into the grave does not rest directly upon the corpse; instead, an empty space is created between the corpse and the ceiling of the grave in which it reposes.
  There is a significant controversy with regard to whether a corpse defiles <i>ad coelum</i> insofar as biblical law is concerned in situations in which there is an open space of a cubic <i>tefaḥ</i> or, more precisely, the space of at least a <i>tefaḥ</i> in length, width and height, between the corpse and the roof of the coffin or tomb in which it is found.34<i class="footnote">For a discussion of whether the dimensions of the object that defiles are included in the <i>poteaḥ tefaḥ</i> and of various sources regarding that question see <i>Teshuvot Ohel Mosheh</i>, II, no. 122.</i> There are various opinions regarding the measurement of a <i>tefaḥ</i> ranging from 7.6 to 10 centimeters.35<i class="footnote">See R. Chaim Benish, <i>Middot u-Shi‘urei Torah</i> (Bnei Brak, 5747), p. 612. See also R. Jacob Gershon Weiss, <i>Middot u-Mishkalot shel Torah</i> (Jerusalem, 5745), p. 382.</i> The most significant of those opinions are the views of R. Abraham Chaim Noe who asserts that a <i>tefaḥ</i> is eight centimeters in length36<i class="footnote">R. Abraham Chaim Noe, <i>Shi‘urei Torah</i> (Jerusalem, 5707), 3:25.</i> and of <i>Hazon Ish</i> who maintains that a <i>tefaḥ</i> equals either 9.67 or ten centimeters.37<i class="footnote">See R. Ya’akov Kanievsky, <i>Shi‘urin shel Torah</i> (Bnei Brak, 5729), p. 64.</i>
  The Gemara, <i>Berakhot</i> 19b, reports that R. Eleazar the son of Zadok, who was a <i>kohen</i>, and his companions were wont to jump over coffins in order to enter the presence of monarchs. It was permissible for them to do so because, in the majority of cases, the corpse reposing in the coffin was surrounded by a <i>poteaḥ tefaḥ</i>, i.e., an "opening of a <i>tefaḥ</i>." Although rabbinic legislation decrees defilement even with regard to a coffin having a <i>poteaḥ tefaḥ</i>, that decree is suspended for purposes of fulfilling a <i>mizvah</i> or in order to pay honor to a monarch. Rashi, <i>Hullin</i> 71a and <i>Nazir</i> 53b, as well as Ra'avad, <i>Hilkhot Tum'at Met</i> 7:4, maintain that this is the case with regard to every coffin in which there is a <i>poteaḥ tefaḥ, viz</i>., in terms of biblical law such a coffin defiles only by means of tactile contact but does not defile <i>ad coelum</i>. However, Rambam, <i>Hilkhot Tum'at Met</i> 7:4; <i>Tosafot, Berakhot</i> 19b, <i>Shabbat</i> 146b and <i>Bava Batra</i> 100b; <i>Teshuvot ha-Rosh, klal</i> 20, no. 1, and Ramban in his <i>Torat ha-Adam</i>38<i class="footnote">See “<i>Torat ha-Adam</i>,” <i>Kitvei Ramban</i>, ed. R. Bernard Chavel (Jerusalem, 5724), II, 139.</i> as well as in his commentary to <i>Bava Batra</i> 101a, assert that this is the case only with regard to a coffin open on one side or in the case of a body within an open crypt but that a completely sealed coffin defiles <i>ad coelum</i> by virtue of biblical law.
  Although <i>Tur Shulḥan Arukh</i> and <i>Bet Yosef, Yoreh De'ah</i> 372, as well as <i>Taz, Yoreh De'ah</i> 372:1, follow the position of early-day authorities who maintain that the rule regarding an open space of a <i>tefaḥ</i> applies only in the case of a body within a coffin open on one side or in the case of a body within an open crypt but is of no avail in preventing defilement in the case of a sealed tomb,39<i class="footnote">According to these authorities, absent a <i>poteaḥ tefaḥ</i>, a sealed tomb defiles only directly above the corpse; if the sealed tomb contains a <i>poteaḥ tefaḥ</i> it defiles persons and items that come into contact with any one of its sides as well.</i> <i>Arukh ha-Shulḥan, Yoreh De'ah</i> 372:3, cites the view of the authorities who maintain that an "opening of a <i>tefaḥ</i>" (<i>poteaḥ tefaḥ</i>) serves to prevent defilement even above a sealed grave.40<i class="footnote">See R. Moshe Sofer, <i>Teshuvot Ḥatam Sofer, Yoreh De‘ah</i>, no. 340, sec. 2.</i> Thus, it would appear that, according to this view, if it can be established that the space between the corpse and the cinder blocks placed above the corpse is of the requisite size, a <i>kohen</i> might traverse the grave without becoming defiled according to the provisions of biblical law. In actuality, however, that consideration will not serve to dispel the problem because of a number of factors:
  1. <i>Tur Shulḥan Arukh</i> and <i>Bet Yosef, Yoreh De'ah</i> 372, rule unequivocally in accordance with the opinion that the consideration of <i>poteaḥ tefaḥ</i> does not pertain to a sealed grave. That is also the position recorded by <i>Arukh ha-Shulḥan he-Atid, Hilkhot Tum'at Met</i> 7:31.41<i class="footnote">R. Abraham I. Kook, <i>Da‘at Kohen</i>, nos. 214 and 215, asserts that the permissive view is limited to a body within a sealed but uninterred coffin. According to <i>Da‘at Kohen</i>, all authorities agree that <i>poteaḥ tefaḥ</i> is of no avail in instances of a body already in a grave.</i>
  2. As spelled out by <i>Tur Shulḥan Arukh, Yoreh De'ah</i> 372, even Rashi, <i>Sukkah</i> 21a, and Ra'avad, <i>Hilkhot Tum'at Met</i> 7:4, who aver that the rule of <i>poteaḥ tefaḥ</i> applies to a sealed grave as well, nevertheless concede that in such cases defilement exists by virtue of rabbinic decree. According to those authorities, the rabbinic decree is suspended only for purposes of fulfilling a <i>mizvah</i> that could not otherwise be fulfilled.
  3. Citing <i>Kesef Mishneh, Hilkhot Tum'at Met</i> 12:6, <i>Kappei Aharon</i> asserts that, even according to Rambam, who maintains that <i>poteaḥ tefaḥ</i> applies only in the case of a coffin open on one side, the presence of a <i>poteaḥ tefaḥ</i> prevents the ascent of defilement only in the case of an unburied coffin "lying on the face of the field" but is of no avail with regard to a corpse already interred.
  4. Rabbis Munk and Lombard, <i>Yeshurun</i>, X, 563, note 33, suggest that, although presence of the requisite empty space may negate defilement engendered by the corpse, nevertheless, the bricks or cinder blocks are themselves a source of defilement and, as is quite evident, there is no empty space above the bricks or concrete blocks to prevent such defilement from affecting an object or person above the grave. Both the verse "And whosoever in the open field touches one that is slain by a sword or a bone of a man or a grave shall be unclean seven days" (Numbers 19:16) and the verse "and a clean person … shall sprinkle it upon the tent … and upon him that touched the bone or the slain or the dead or the grave" (Numbers 19:18) posit defilement for contact with a grave no less so than for contact with a corpse. In their recently published monograph dealing with the laws of priestly defilement, <i>Tohorat ha-Kohanim</i> (Jerusalem, 5762), pp. 91f., Rabbis Munk and Lombard, citing the comments of <i>Sifri</i>, show that the "grave" specified in Numbers 19:16 and 19:18 is not the earth in which the corpse is buried but a man-made tomb or structure in which the body is placed within the ground. Accordingly, the cinder blocks or bricks themselves constitute a tomb or "grave" which, in turn, causes defilement independently from the corpse.
  Nevertheless, the same authors, <i>Tohorat ha-Kohanim</i>, pp. 92f., question whether the defilement engendered by a tomb is indeed an independent source of defilement, and hence serves to defile <i>ad coelum</i> unless there is a <i>poteaḥ tefaḥ</i> above the tomb itself, or whether a tomb or "grave" defiles only by virtue of the corpse contained within the tomb, with the result that the presence of a <i>poteaḥ tefaḥ</i> between the corpse and the "grave" serves also to obviate defilement caused by the grave.
  5. Some communities, including some sectors of the Yemenite community, customarily fill the space between the body and the cinder blocks with sand, thereby effectively eliminating any possibility that there may be an empty space of a <i>poteaḥ tefaḥ</i> within the grave. Thus, it is highly likely that there are indeed graves within the confines of the Holon cemetery in which there is no <i>poteaḥ tefaḥ</i>.
  6. Examination of graves that have been opened for one reason or another reveals that the cinder blocks customarily utilized for placement around and above the body are not very durable and tend to crumble with the passage of time with the inevitable result that the intervening space rapidly becomes filled with earth. When that occurs there is no longer a <i>poteaḥ tefaḥ</i> within the grave.
  7. The Mishnah, <i>Oholot</i> 2:4, declares that a "<i>gollel</i>" and its supporting structure known as a "<i>dofek</i>" cause defilement in the same manner as a corpse. Among early-day authorities there are three views with regard to the definition of a "<i>gollel</i>." 1) The <i>Arukh, erekh gollel</i>, maintains that a <i>gollel</i> is a stone used to seal an open grave. 2) Rashi, <i>Shabbat</i> 152b, <i>Ketubot</i> 4b and <i>Hullin</i> 72a, maintains that the cover of a coffin is also deemed to be a <i>gollel</i>. Ramban, in his <i>Torat ha-Adam</i>, qualifies Rashi's view with the assertion that the cover of a coffin acquires the status of a <i>gollel</i> only upon being secured to the coffin with nails or pegs. 3) Rabbenu Tam, cited by <i>Tosafot, Berakhot</i> 19b, <i>Shabbat</i> 152b, <i>Ketubot</i> 4b and <i>Sanhedrin</i> 47b, defines a <i>gollel</i> as a tombstone placed over the grave. <i>Taz, Yoreh De'ah</i> 369:2, rules that, in consideration of the opinion of Rabbenu Tam, a <i>kohen</i> must regard a tombstone as a source of defilement.42<i class="footnote"><i>Arukh ha-Shulḥan, Yoreh De‘ah</i> 269:11, understands these authorities as referring to a stone slab orbed placed horizontally over the grave but not to the vertical tombstone that in many locales is more prevalent in our day.</i>
  It appears that, according to Rabbenu Tam, the presence of a tombstone covering a grave would be sufficient to cause the defilement of a <i>kohen</i> flying over the cemetery even if it might be established that each of the graves contains an empty space possessing the dimensions of a <i>poteaḥ tefaḥ</i>. Nevertheless, Rabbis Munk and Lombard, <i>Yeshurun</i>, X, 563, note 29, suggest that, even according to Rabbenu Tam, only a tombstone erected at the time of interment is a source of defilement. Indeed, the <i>gollel</i>, and hence its definitions, is significant not only with regard to the issue of defilement but also because mourning does not begin until the time of "sealing of the <i>gollel</i>" (or better, "sealing by means of the <i>gollel</i>"), i.e., for Rabbenu Tam, the placing of a tombstone upon the grave. It is counterintuitive to assume that commencement of mourning is to be delayed until erection of a tombstone months after interment. Rather, the Sages must have referred to an act that signifies completion of the burial ritual. Accordingly, argue Rabbis Munk and Lombard, tombstones erected long after burial, as is the custom in our day, do not fall within the connotation of the term "<i>gollel</i>" either for purposes of the "sealing of the <i>gollel</i>" signaling the advent of the mourning period or, as employed by the Mishnah, <i>Oholot</i> 2:4, in conjunction with the laws of defilement.
  It should also be noted that Rabbi Spitzer, <i>Kol ha-Torah</i>, no. 52, p. 176, cites <i>Tosafot, Sukkah</i> 23a, as apparently maintaining that a <i>gollel</i> cannot serve as a source of defilement unless the grave that it covers is also a source of defilement. Thus, if the grave does not generate defilement because of the presence of a <i>poteaḥ tefaḥ</i>, its stone covering, according to the understanding of <i>Tosafot</i>, could not be an independent source of defilement.
  However, according to Rashi, who maintains that the <i>gollel</i> is to be defined as the cover of the coffin, it would seem that the concrete blocks or wooden boards placed over the body would also have that status, and hence, as Rabbi Epstein, <i>Teḥumin</i>, XXII, 396, appears to indicate, according to Rashi, that covering would serve as a source of defilement even if beneath the cover there is an empty space of a <i>poteaḥ tefaḥ</i>.
  There is indeed a minority view that does not regard the presence of a <i>gollel</i> as constituting a problem for a <i>kohen</i>. Not every form of defilement is forbidden to a <i>kohen</i>. Thus, a <i>kohen</i> is permitted to defile himself by coming into contact with an implement, including a metal sword, that has been defiled by a corpse. However, the general consensus is that a <i>kohen</i> may not defile himself by coming into contact with a <i>gollel</i>. Nevertheless, in seeking permissive views that would justify the airplane journeys that are the subject of this discussion, Rabbi Epstein cites a variant opinion recorded by <i>Tur Shulḥan Arukh</i> 369 that maintains that a <i>kohen</i> is not prohibited from defiling himself by means of a <i>gollel</i> just as he is not forbidden to defile himself by contact with utensils that have become defiled by a corpse.
  R. Judah Gershuni, <i>Kol Ẓofayikh</i> (Jerusalem, 5740), pp. 428-430, cites the explanation of R. Gershon Henach of Radzin, <i>Sidrei Tohorot</i>, pp. 77b-78a, of the statement of the Mishnah, <i>Shabbat</i> 83b, declaring that a ship cannot become defiled. Citing <i>Tosafot Rid, Sidrei Tohorot</i> asserts that the rationale underlying that rule is that a ship is not considered to be a "vessel" because its walls are designed primarily to keep the water at bay rather than to provide a container for that which is within; hence, a ship lacks the essential property of a utensil, i.e., it is not a container.
  <i>Sidrei Tohorot</i> expresses some doubt with regard to the applicability of that consideration to a boat made of metal since a metal object is susceptible to defilement even though it is not a container. Rabbi Gershuni applies the same considerations to airplanes in arguing that airplanes are similarly designed to keep out air but, since they are constructed from metal, their status according to <i>Sidrei Tohorot</i> remains unclear. However, assuming that <i>Sidrei Tohorot</i>'s analysis of the status of a ship is correct, it is hardly cogent with regard to airplanes. The walls of a plane are not designed to keep air out; they are clearly designed to keep passengers inside, to protect them from the elements and to prevent them from falling to their deaths.
  R. Moshe Feinstein, <i>Iggerot Mosheh, Yoreh De'ah</i>, II, no. 164, expresses doubt with regard to whether an airplane is subject to defilement despite the fact that it is made of metal. <i>Iggerot Mosheh</i> suggests that "perhaps" only the six metals specified in Numbers 31:23, <i>viz</i>., gold, silver, copper, iron, tin and lead, have the halakhic status of metal. Those materials, together with mercury which is actually a liquid, constitute the seven metals of antiquity. Arsenic was discovered in the thirteenth century by Albertus Magnus and a number of other metals, including zinc, were discovered only subsequently. However, most other metals were unknown until relatively modern times. <i>Iggerot Mosheh</i> suggests that only the enumerated metals are susceptible to defilement and that it is for that reason that they are named individually in Numbers 31:23 rather than collectively identified as metals. <i>Iggerot Mosheh</i> points out that, biblically, glass is not susceptible to defilement despite the fact that it is comparable to metal in the sense that it is melted, rather than destroyed, by fire. Accordingly, <i>Iggerot Mosheh</i> suggests that since airplanes are composed primarily of metals discovered during subsequent periods of history, i.e., aluminum and titanium, a plane cannot become defiled and hence the airplane itself may serve as an interposition preventing defilement from entering the passenger section. Although the material used for that purpose in the construction of airplanes is a mixture of one of the metals of antiquity and subsequently discovered metals, the halakhic identity of the entire mixture, asserts <i>Iggerot Mosheh</i>, is that of its major component. The halakhic status of modern metals will be more fully discussed in a subsequent section.
  VI. Ẓamid Patil—A Sealed Vessel
  1. The Utensil
  With regard to the defilement engendered by a corpse, Numbers 19:14 specifies that "… every [person] who comes into the tent shall be unclean seven days." The immediately following verse, Numbers 19:15, spells out the circumstances in which vessels and utensils are defiled: "And every open vessel which has no covering close-bound upon it is unclean." The clear inference is that the converse, i.e., a closed vessel that is tightly sealed, does not become defiled. The Mishnah, <i>Kelim</i> 10:1, declares that not only is such a utensil not subject to defilement but the utensil also preserves anything that may be contained within its walls from becoming defiled. Rabbinic tradition teaches that biblical law limits the capacity of a sealed utensil to preserve its contents from defilement to vessels such as pottery and earthenware that are not subject to defilement by tactile contact with the exterior of the vessel.
  However, rabbinic edicts did legislate defilement in many situations in which there is no biblically mandated defilement. The concern was to prevent confusion as well as to assure avoidance of objects that cause defilement. Accordingly, rabbinic legislation decreed defilement of vessels or utensils enclosed within such sealed containers. Nevertheless, rabbinic law did not interfere with the protection such vessels offer to food and beverages because, once defiled, foodstuffs cannot be purified. Concern for the resultant economic burden caused the Sages to refrain from decreeing defilement of foodstuffs contained within a sealed vessel. For an entirely different reason no defilement was decreed for a human being who might be sealed within such a utensil. Rambam, <i>Hilkhot Tum'at Met</i> 23:2, explains that the exclusion of human beings from the decree is based upon the consideration that the phenomenon of a person sealed within a closed vessel is highly unusual and rabbinic edicts are generally not promulgated with regard to regulation of events that occur only rarely.
  In order to "rescue" its contents from defilement, a utensil must satisfy three conditions: 1) The object must have the halakhic status of a utensil (<i>keli</i>)43<i class="footnote">See <i>Yadayim</i> 1:2; <i>Tosefta, Kelim, Bava Kamma</i> 7:7; as well as <i>Miẓpeh Shmu’el, ad locum</i>, s.v. <i>or ha-dag</i>.</i> designed for use as a container;44<i class="footnote">See Tosefta, <i>Kelim, Bava Kamma, loc. cit.</i></i> 2) the utensil must be made of a material that cannot be defiled by contact of the exterior of the utensil with a defiled object, e.g., earthenware or pottery;45<i class="footnote">See <i>Kelim</i> 10:1.</i> and 3) the utensil must be covered and sealed.
  Thus, if an airplane has the status of a closed and sealed vessel (<i>zamid patil</i>) a <i>kohen</i> might fly in the passenger cabin without fear of defilement. The first issue that presents itself is whether an airplane has the status of a utensil. As is evident from the statement of the Mishnah, <i>Kelim</i> 2:4, a utensil that incorporates openings in its structure but is nevertheless designed for use in that fashion has the status of a utensil. According to the interpretation of Rabbenu Shimshon, the Mishnah, <i>Kelim</i> 2:5, makes specific reference to a utensil constructed with openings in its base. Nevertheless, large holes or openings serve to nullify the status of a utensil as a <i>keli</i>. As recorded in numerous instances in <i>Kelim</i>, the minimum size of an opening that serves to nullify the status of a utensil as a <i>keli</i> varies in a manner commensurate with the designated use of the utensil. Airplanes contain numerous doors and apertures of rather large proportions. As a result an airplane may not have the status of a <i>keli</i>. Nevertheless, as Rabbis Halberstadt and Goldmintz, <i>Kanfei Yonah</i>, p. 22, cogently observe, since such doors in airplanes are entirely consistent with the intended use of the airplane, it is quite possible that the airplane retains the status of a <i>keli</i>.
  a) The Six Metals
  An even more crucial issue is whether the airplane is constructed of material that is susceptible to defilement. According to reports in the rabbinic literature, the composition of the material of which airplanes are constructed is 75 percent aluminum, some titanium, and approximately 15-25 percent steel and copper. <i>Tiferet Yisra'el</i>, in his introduction to <i>Seder Tohorot, Yevakesh Da'at</i>, sec. 44, cites a statement of R. Elijah of Vilna, commonly known as the Gra, in the latter's <i>Eliyahu Rabbah</i>, in which he declares that there are six species of metal: gold, silver, copper, iron, tin and lead, i.e., the species enumerated in Numbers 31:22. Those metals, together with mercury, which at room temperature is actually a liquid, constitute the seven metals known in antiquity.46<i class="footnote">The statement that only seven metals (including mercury) were known in antiquity may not be entirely accurate. The Gemara, <i>Avodah Zarah</i> 33b, speaks of utensils made of <i>natar</i>, a material identified by the Gemara as being derived from the “digging” or excavation from which <i>ẓerif</i> is extracted. The status of this material is discussed more fully in the following subsection. Rashi defines <i>ẓerif</i> as alum. In context, the Gemara declares that utensils made of <i>natar</i> in which non-kosher food has been cooked cannot be <i>kashered</i> by conventional methods. That statement is readily understandable: since the utensil is made of earth its status is that of <i>ḥeres</i>, which cannot be <i>kashered</i>. Rabbenu Shimshon, <i>Kelim</i> 2:1, states explicitly that utensils made of <i>natar</i> have a status identical to that of <i>ḥeres</i> and hence, if such utensils become defiled, they cannot be purified by immersion in a <i>mikveh</i>. Maharsha, however, explains a comment of <i>Tosafot, ad locum</i>, as reflecting the notion that, although implements made of <i>natar</i> are highly absorbent and hence cannot be <i>kashered</i>, just as <i>ḥeres</i> cannot be <i>kashered</i> for that reason, nevertheless, for purposes of laws of ritual purity, the status of the vessel is that of a metal utensil. Rabbi Spitzer, <i>Kol ha-Torah</i>, no. 52, p. 182, astutely comments that, according to Maharsha’s understanding of <i>Tosafot</i>, the material must have been extracted from earth in which it was found in a natural state but, since refining methods known at the time were imperfect, the extracted metal retained a high concentration of earth or sand. Those particles of sand remained highly absorbent and hence the utensil could not be <i>kashered</i>. Nevertheless, the utensil itself, even though it was composed of an incompletely refined substance, according to Maharsha’s understanding of <i>Tosafot</i>, had the status of a metal utensil. Putting aside the question of the correct interpretation of <i>Tosafot</i>, Maharsha, in agreement with <i>Tiferet Yisra’el</i>, certainly accepted as an antecedent premise the notion that the six enumerated metals do not constitute an exhaustive list.</i> <i>Tiferet Yisra'el</i>, however, takes note of the fact that in the modern period metallurgists have succeeded in identifying and refining additional metals. Accordingly, he asserts that newly discovered metals must either be regarded as subspecies of the metals enumerated in Scripture47<i class="footnote">See <i>infra</i>, note 55. R. Yirmiyahu Deutsch, <i>Tohorat ha-Kohanim</i>, pp. 197f., cites by way of comparison the seven species of kosher animals enumerated in Scripture and the three species identified as non-kosher because they chew the cud but do not have split hooves. Other kosher species are regarded as subspecies of the deer and the sheep; the alpaca and the llama are regarded as subspecies of the non-kosher camel even though zoologists do not recognize them as members of the same genus. Accordingly, Rabbi Deutsch argues that there is no way to determine with certainty that modern metals are not subspecies of those enumerated by Scripture. That argument is not compelling for the simple reason that the Torah spells out the criteria of both kosher and non-kosher species and animals not specifically mentioned do manifest the specified criteria. However, the Torah does not spell out the criteria of a metal; moreover, modern metals do not in any way share the chemical profile of the enumerated metals. Hence there is no reason to suspect that they may be subspecies of the six biblically enumerated species.</i> or that the list is not intended to be exhaustive.48<i class="footnote">Rabbi Spitzer, <i>Kol ha-Torah</i>, no. 52, p. 181, draws attention to Rambam’s formulation regarding the defilement of metal implements. Rambam, <i>Hilkhot Kelim</i> 1:1, states simply that metal implements are subject to defilement but fails to enumerate the six metals. That omission might suggest that the rule extends to all metals rather than only to the six specifically enumerated in Scripture. That inference is, however, less than compelling. Since modern metals were as yet unknown in his day, Rambam had no reason to exclude them by specifying the metals to which the rule applies. Scripture, on the other hand, must perforce have been concerned with providing a full and accurate rule for posterity.</i>
  Since each of the modern metals is a unique element in the element table and possesses an idiosyncratic molecular structure, it is difficult to accept the contention that those metals can be identified as variants of one of the metals of antiquity. It is indeed the case that the Gemara, <i>Yoma</i> 44b, describes no less than seven types of gold. However, the diversity of the multiple forms of gold known in antiquity reflects only the degree of purity of the gold and the various alloys with which it is found in its natural state. Modern metals contain no admixture of any of the metals of antiquity.
  <i>Tiferet Yisra'el</i>'s alternative suggestion, <i>viz</i>., that the list presented in Numbers 31:22 is paradigmatic rather than exhaustive, is more plausible but gives rise to the further problems of determining the halakhic definition of "metal." <i>Tiferet Yisra'el</i> himself defines metal as any substance that can be hammered into thin sheets, i.e., the halakhic category of "metal" includes all malleable and ductile substances. However, that definition seems to be contradicted by Rashi, <i>Rosh ha-Shanah</i> 19b, s.v. <i>ve-ḥakhamin</i>, who explains that, biblically, glass is not subject to defilement in the manner of metal utensils because "the only metal utensils subject to biblical defilement are those enumerated in the [biblical] section [dealing with the utensils seized from the Midianites]." Since glass is certainly not ductile, according to <i>Tiferet Yisra'el</i>, no further explanation for why it is not subject to defilement as a metal should be necessary and hence Rashi's comment would be rendered superfluous. Moreover, Rashi seems to imply that the list of metals enumerated in Numbers 31:22 is exhaustive. It is difficult to read Rashi's comment (as Rabbis Halberstadt and Goldmintz, <i>Kanfei Yonah</i>, p. 23, apparently do) as designed simply to explain that glass is not comparable to the materials named in Scripture but that Rashi leaves it to the reader to discern that glass is not comparable because it is not malleable.
  In his earlier-cited responsum, <i>Iggerot Mosheh, Yoreh De'ah</i>, II, no. 164, seems to define the halakhic concept of metal as encompassing any substance that melts but is not destroyed when exposed to heat. Indeed the Hebrew term for metal, <i>viz., "matekhet,"</i> is derived from the verb meaning "to melt."49<i class="footnote">Rabbi Jacob Kamenetsky, in a responsum appended to R. Zevi Cohen’s <i>Hekhsher Kelim</i> (Jerusalem, 5738), p. 243 and reprinted in Rabbi Kamenetsky’s <i>Emet le-Ya‘akov, Shulḥan Arukh, Yoreh De‘ah</i> 120:1, cites Targum Onkelos in tracing the etymology of “<i>matekhet</i>” and identifies the word from which it is derived as an Aramaic verb meaning “to pour.”</i> If so, glass similarly possesses the characteristics of a metal and, presumably, Rashi found it necessary to explain why glass is not subject to defilement as a metal. If that is the case, Rashi must be understood as stating that only those materials explicitly enumerated by Scripture are subject to defilement as metals.
  <i>Iggerot Mosheh</i> further argues that one of the hermeneutic principles of biblical exegesis is that a single example is designed to establish a paradigm but two or more examples (<i>shnei ketuvim ha-ba'im ke-eḥad</i>) of an identical principle serve to negate the drawing of a paradigm. The logic underlying that principle is that, if a paradigm were intended, the second example would be redundant, whereas if no paradigm is intended each instantiation must be presented individually. Thus, suggests <i>Iggerot Mosheh</i>, enumeration of six separate metals would have been superfluous if the rule was intended to apply to all metals. Hence, he concludes, the list must be regarded as exhaustive and designed to exclude any modern metal that "it was the will of the Holy One, blessed be He, that it be revealed in these latter generations." Moreover, asserts <i>Iggerot Mosheh</i>, the laws of defilement cannot be applied, <i>mutatis mutandis</i>, to a novel species "for all the laws of defilement are a decree of Scripture," i.e., the regulations pertaining to defilement are arational in the sense that they are not predicated upon a discernible logical principle. Nevertheless, <i>Iggerot Mosheh</i> concludes that the matter requires further reflection. In a responsum appended to <i>Tevilat Kelim</i>, pp. 243f., and later published in his <i>Emet le-Ya'akov, Shulḥan Arukh, Yoreh De'ah</i> 120:1, R. Jacob Kamenetsky cites <i>Tiferet Yisra'el'</i>s position with regard to modern metals and, advancing arguments identical to those of <i>Iggerot Mosheh</i>, strongly disagrees with <i>Tiferet Yisra'el</i>'s position.
  As has been noted, the major components of the material from which airplanes are constructed are modern metals, primarily aluminum, which was first produced by Hans Christian Østed in 1825, and titanium that was first isolated by M. H. Klaproth in 1797. Although both steel and copper are present as alloys in the material from which airplanes are manufactured, <i>Iggerot Mosheh</i> cites <i>Kelim</i> 11:4 in asserting that the halakhic status of the plane is dependent upon the identity of the metal that represents the major portion of the compound from which the plane is constructed. It thus follows that, according to <i>Iggerot Mosheh</i>'s tentative conclusion,50<i class="footnote">R. Yirmiyahu Kahanov, in a responsum appended to <i>Tohorat ha-Kohanim</i>, p. 195, reports that R. David Feinstein informed him that his father wrote this responsum “merely in the form of <i>pilpul</i>” but, in practice, did not rely upon his argument. That <i>Iggerot Mosheh</i> refused to issue a definitive ruling is stated quite explicitly in this responsum; by the same token, it is clear that the suggestion, although not definitive, was both serious in nature and reflected a considered judgement. Moreover, in <i>Iggerot Mosheh, Yoreh De‘ah</i>, III, no. 22, in the context of a discussion of whether there is a biblical obligation with regard to the immersion of aluminum utensils acquired from a non-Jew, Rabbi Feinstein declares without reservation that aluminum is not a “metal.” See <i>infra</i>, note 54 and accompanying text.</i> an airplane is not susceptible to defilement as a metal and hence, if the other requisite conditions are satisfied,51<i class="footnote">See, however, Rabbi Spitzer, <i>Kol ha-Torah</i>, no. 52, p. 182, who argues that, even according to <i>Iggerot Mosheh</i>, in practice, an airplane cannot shield passengers from defilement. <i>Iggerot Mosheh, Yoreh De‘ah</i>, III, no. 22, suggests that, by virtue of rabbinic decree, aluminum may be susceptible to defilement in the manner of an earthen utensil. A utensil may serve as an interposition in the form of a <i>ẓamid patil</i> preventing defilement of the contents or occupants only if it itself has not become defiled. If, however, the utensil has become defiled from within, it can no longer serve as a shield preventing penetration of defilement. Hence, since aluminum is subject to defilement from within by reason of rabbinic decree, it cannot serve as an interposition.</i> an airplane can shield passengers from defilement.52<i class="footnote">See, however, <i>infra</i>, note 63 and accompanying text for a discussion of the capacity of even a small quantity of metal to determine the halakhic status of a utensil by virtue of the principle of <i>ma‘amid</i>.</i> That conclusion stands in sharp contradiction to the conclusion that must be reached on the basis of the position of <i>Tiferet Yisra'el</i>. If, as <i>Tiferet Yisra'el</i> maintains, modern metals also have a halakhic status identical to that of the biblically enumerated metals, it follows that an airplane is subject to defilement and accordingly, cannot protect passengers from defilement.
  b) Natar
  There is indeed support for the position of <i>Tiferet Yisra'el</i> in a comment of <i>Tosafot</i>, <i>Avodah Zarah</i> 33b, as that comment is understood by Maharsha, <i>ad locum</i>. The Gemara speaks of utensils made of an earthen substance known as "<i>natar</i>" and states simply that utensils made of that material cannot be <i>kashered</i> because, as is the case with pottery, earthen-ware is porous and hence non-kosher food absorbed within the walls of the utensil cannot be purged in the usual manner. <i>Natar</i> is described as an earth-like substance and, quite understandably, utensils fashioned from that material have the status of earthenware and cannot be <i>kashered</i>. However, <i>Tosafot</i>, as understood by Maharsha, assert that utensils fashioned from <i>natar</i> are subject to defilement in the manner of utensils manufactured from metal. Since <i>natar</i> is not one of the six biblically enumerated metals, it is thus readily apparent that <i>Tosafot</i> did not regard the list of metals as exhaustive and, in effect, <i>Tosafot</i> subscribe to the view later explicitly formulated by <i>Tiferet Yisra'el, viz</i>., that all metals, including those discovered in the modern period, are subject to defilement.53<i class="footnote">Rabbi Spitzer, <i>Kol ha-Torah</i>, no. 52, p. 182, states that Rashi defines <i>natar</i> as alum and proceeds to confuse alum with aluminum in assuming that the Gemara is referring to utensils made of aluminum that were only partially refined because the technology for properly refining aluminum was as yet unknown. Curiously, without citing a source, Rabbi Spitzer comments, “It is known that there are presently extant utensils from the days of the Romans who termed them alum and they are [made] from a type of earth from which, after additional refinement (the manner of which was discovered more than one hundred and fifty years ago), aluminum is made. It is called alum after partial refining but while still mixed with other alloys and not refined sufficiently to be a metal as other species of metal.” In actuality, aluminum is an element whereas alum is a totally unrelated crystalline compound and may be any one of a series of isomorphous double salts. Alum also occurs in nature as the mineral kalunite. Aluminum was used in antiquity as a mordant to fix certain dyes and in tanning. Some types of alum are presently used in baking powder, in fireproofing textiles, in vegetable glues and porcelain cements, in photographic fixing baths to harden gelatin films and plates and in water purification.Moreover, a careful reading of Rashi indicates the he does not identify “<i>natar</i>” as alum; rather he defines “<i>ẓerif</i>” as alum. The Gemara describes <i>natar</i> as derived from “the digging of <i>ẓerif</i>” rather than as <i>ẓerif</i> itself. Thus the statement should be understood as indicating that <i>natar</i> is excavated together with <i>ẓerif</i>, i.e., in nature natar and <i>ẓerif</i> are found together, but they are different substances. The identity of <i>natar</i> remains unknown to us but, contrary to Rabbi Spitzer’s understanding, it is not alum and indeed alum—which is unrelated to aluminum—is not a material from which utensils can be manufactured.</i> Thus, the controversy between <i>Tiferet Yisra'el</i> and later authorities, and hence the status of aluminum utensils, is the subject of an earlier dispute between Rashi and <i>Tosafot</i>.
  However, an additional consideration emerges from Rabbi Feinstein's further analysis of the nature of aluminum in <i>Iggerot Mosheh, Yoreh De'ah</i>, III, no. 32. Although <i>Iggerot Mosheh</i> does not deem aluminum to be one of the biblically defined metals and finds no evidence of a rabbinic decree providing for defilement of aluminum implements as rabbinically defined metal utensils, he points to the fact that glass utensils, although they are not made of metal, are nevertheless subject to the mode of defilement associated with pottery. Glass is similar to <i>ḥeres</i>, or pottery, in that it, too, is fashioned from sand and fired in a kiln; hence it is rabbinically subject to the same type of defilement that is biblically attendant upon pottery. Accordingly, argues <i>Iggerot Mosheh</i>, aluminum, which is also produced from an earth-like substance, is subject to the same type of rabbinic defilement that is attendant upon glass utensils. To be sure, glass, and hence aluminum, have the status of <i>ḥeres</i> and, accordingly, are not subject to defilement from any object that comes into contact with the exterior of the vessel. But such utensils are nevertheless subject to defilement if a defiled object enters the internal air space of the vessel. Once that has occurred (as Rabbi Spitzer, <i>Kol ha-Torah</i>, no. 52, p. 184, notes), the vessel, even if covered by a <i>zamid patil</i>, can no longer preserve any object within the vessel from defilement. Only a tightly sealed vessel that has not been defiled can preserve its contents from defilement; once the vessel has become defiled, the fact that it is sealed by a <i>zamid patil</i> is of no relevance. The practical effect of that observation is that if the plane has harbored a dead body at any time it can no longer preserve passengers from defilement even if the plane has the characteristics of a <i>zamid patil</i>.
  c) Immersion of Aluminum Vessels Acquired from a Non-Jew
  It is noteworthy that the biblical locus of the controversy regarding the status of modern metals is not a passage containing a provision directly pertaining to defilement associated with contact with a dead person but a verse that occurs in the context of booty acquired in the course of the war against the people of Midian. The talmudic interpretation of Numbers 31:23, "and all that cannot go through the fire you shall cause to go through the water," is that the verse establishes a requirement for immersing utensils acquired from a non-Jew in a <i>mikveh</i>. That requirement is limited to implements made of materials to which reference is made, i.e., all utensils susceptible to defilement. Thus the question of the status of modern metals such as aluminum is a matter of concern not only for <i>kohanim</i> contemplating plane trips but is of significance for any Jew who purchases aluminum eating or cooking utensils from a non-Jewish purveyor. It is therefore not surprising that most of the contemporary rabbinic discussions of the status of modern-day metals occur in that context.
  Indeed, in a discussion paralleling his analysis of the status of airplanes, <i>Iggerot Mosheh, Yoreh De'ah</i>, III, no. 22, vigorously argues that, according to biblical law, aluminum utensils acquired from a non-Jew do not require immersion in a <i>mikveh</i> because aluminum is not one of the metals enumerated in Scripture but nevertheless suggests that immersion is required by virtue of rabbinic decree for the same reason that rabbinic law requires immersion of glass utensils, <i>viz</i>., because glass utensils can be melted down and refashioned in a manner similar to metal.54<i class="footnote">Cf., <i>supra</i>, note 50 and accompanying text.</i> A British authority, R. Chanoch Padwa, <i>Heshev ha-Efod</i>, III, no. 70, reports that it had been his intention to rule that aluminum utensils are exempt from immersion but that the <i>Tchebiner Rav</i>, R. Dov Berish Weidenfeld, refused to agree55<i class="footnote">Rabbi Weidenfeld is quoted by <i>Ḥeshev ha-Efod</i> as explaining his demurral with the comment, “Who knows? Perhaps [aluminum] is a species of iron.” See <i>supra</i>, note 47.</i> and he therefore abandoned the issue. R. Zevi Cohen, <i>Tevilat Kelim</i> (Jerusalem, 5738), chap. 11, note 113, reports that R. Samuel Woszner also ruled that aluminum utensils require immersion. Similarly, R. Ya'akov Yitzchak Weisz, <i>Teshuvot Minḥat Yizḥak</i>, V, no. 9, analyzes the status of disposable aluminum utensils but fails even to suggest that aluminum may not have the halakhic status of a "metal."56<i class="footnote">See also <i>Teshuvot ve-Hanhagot</i>, III, no. 347.</i>
  Although, as cited earlier, Rabbi Jacob Kamenetsky asserts that aluminum is not susceptible to defilement, he nevertheless asserts that aluminum utensils acquired from a non-Jew require immersion. Rabbi Kamenetsky points to a tentative statement by the Gemara, <i>Avodah Zarah</i> 75b, that would have required immersion of certain earthen vessels even though such vessels are clearly not subject to defilement. Rabbi Kamenetsky suggests that the immersion of utensils acquired from a non-Jew is not at all associated with concepts of defilement but rather is comparable to the immersion of the High Priest on <i>Yom Kippur</i> each time he changed vestments. He also notes that glass utensils acquired from a non-Jew are subject to immersion by virtue of rabbinic decree even though they have the status of pottery which, when defiled, cannot be purified by immersion. However, rabbinic legislation requiring immersion of a utensil that is not subject to purification in that manner insofar as biblical law is concerned strongly suggests that such immersion is designed for a purpose other than the purging of defilement.
  Advancing an argument similar to that of <i>Iggerot Mosheh</i>, Rabbi Kamenetsky further suggests, albeit tentatively, that even if the rabbinic requirement of immersion of glass utensils is indicative of a rabbinic decree legislating a unique form of rabbinic defilement that is subject to purification by immersion, aluminum utensils purchased from a non-Jew may require immersion for the same reason. The Sages decreed that glass utensils require immersion because they are comparable to, and hence readily confused with, metal utensils in that, like metal, glass becomes molten when subjected to high temperature. Hence, like metal, when a glass utensil is broken it can be melted and refashioned. The Sages feared that allowing use of unimmersed glass utensils would lead to the erroneous assumption that metal utensils, because of their similarity to glass, also do not require immersion. However, Rabbi Kamenetsky expresses doubt with regard to whether or not the same rabbinic decree encompasses aluminum utensils as well. Aluminum can certainly be melted down and hence is even more likely than glass to be confused with other metals. On the other hand, the rabbinic decree may be limited to utensils such as glass which, since it is made from sand and is comparable to pottery, is susceptible to certain forms of defilement by virtue of rabbinic decree, but the decree may not include modern metals which, in Rabbi Kamenetsky's opinion, cannot become defiled under any circumstances.57<i class="footnote">A similar doubt is expressed by R. Elimelech Bluth, <i>Le-Torah ve-Hora’ah</i>, no. 2 (Summer, 5733), p. 40.</i>
  A similar point was made much earlier by R. David Zevi Hoffmann, <i>Melammed le-Ho'il, Yoreh De'ah</i>, no. 49, with regard to utensils made of bone. In his day a process was developed that made it possible to melt bone so that it might be fashioned into implements. In addressing the question of whether such implements have the halakhic status of glass utensils, <i>Melammed le-Ho'il</i> comments, "since glass utensils [require immersion only by virtue of] rabbinic decree, perhaps the [Sages] legislated only with regard to glass utensils but not with regard to other utensils even though they can be melted down." More recently, citing Magen Avraham and <i>Maḥazit ha-Shekel, Oraḥ Hayyim</i> 301:10, R. Jacob Breisch, <i>Teshuvot Helkat Ya'akov</i>, II, no. 163, and R. Ovadiah Yosef, <i>Yabi'a Omer</i>, IV, <i>Yoreh De'ah</i>, no. 8, both assert that rabbinic decrees encompass only matters that were known to the Sages at the time of their decree. The basic notion reflected in the assertions of <i>Helkat Ya'akov</i> and <i>Yabi'a Omer</i>, i.e., that rabbinic legislation is subject to interpretation in accordance with a doctrine of "strict construction," recurs frequently in halakhic literature. Hence, even if the rationale underlying the rabbinic decree is relevant to novel phenomena or materials of our age, we lack the power or the mechanism to extend such decrees. It is for this reason that those authorities maintain that plastic utensils do not require immersion.58<i class="footnote">That is also the view of R. Yosef Eliyahu Henkin, <i>Ha-Darom</i>, no. 20 (Tishri 5725), p. 51; <i>Ẓiẓ Eli‘ezer</i>, VII, no. 33; R. Moshe Feinstein, <i>Le-Torah ve-Hora’ah</i>, no. 1 (Chanukkah, 5733), p. 11 and no. 2 (Summer, 5733), p. 20 (see also <i>ibid.</i>, p. 42) and is reported to be the position of <i>Ḥazon Ish</i> as well. See R. Zevi Cohen, <i>Tevilat Kelim</i>, (Jerusalem, 5738), chap. 11, note 115.</i>
  R. Chaim Greineman, <i>Hiddushim u-Bi'urim</i>, <i>Kelim</i> 2:3, similarly rules that plastic utensils do not require immersion for the reason cited but adds an additional consideration as well. Rabbi Greineman argues that the rabbinic decree regarding immersion of glass vessels was based not simply on the fact that they are similar to metal utensils in that they can be repaired by means of melting and refashioning but also upon the consideration that glass utensils are objects of value, as is the case with regard to metal utensils. Plastic utensils, he argues, do not have the same intrinsic value as utensils made of glass and hence are not included within the parameters of the rabbinic decree. That consideration may perhaps apply to disposable aluminum utensils as well. There are, however, some few authorities who regard the status of plastic utensils to be a matter of unresolved doubt and therefore require immersion of such vessels, albeit without a blessing.59<i class="footnote">See <i>Minḥat Yiẓḥak</i>, III, nos. 76–78. See also R. Shlomoh Zalman Braun, <i>She‘arim Meẓuyanim be-Halakhah</i>, chap. 37, note 4; R. Moshe Sternbuch, <i>Halakhah be-Mishpaḥah ha-Shalem</i> (Jerusalem, 5748), 30:3; and <i>Tevilat Kelim</i>, chap. 11, note 115.</i>
  2. The Seal
  A vessel made of <i>ḥeres</i> becomes defiled only from its interior. Hence, defilement by virtue of occupying the same "tent" as a corpse can occur only if the vessel has an opening. Accordingly, the vessel does not become defiled—and hence "rescues" its contents from defilement—only if its opening is both covered and tightly sealed with a sealant. The Mishnah, <i>Kelim</i> 10:2, lists materials that serve as sealants as well as a number of materials that are explicitly excluded. The doors of an airplane are indeed tightly closed but are not sealed with a sealant; hence the airplane does not appear to qualify as a <i>zamid patil</i>.
  However, Maharam of Rothenberg, in his commentary on <i>Oholot</i> 9:1, cited by <i>Tosafot Yom Tov, Kelim</i> 10:3,60<i class="footnote">See also <i>Ḥazon Ish, Kelim</i> 13:1 and 13:4.</i> asserts that a sealant is required only if closure is effected by means of a "hard" material inserted to fill the opening. Since a hard material can never be tailored completely and perfectly to plug an opening in another hard material, a sealant is necessary to fill the remaining gaps. However, maintains Maharam of Rothenberg, if a soft, pliable material is molded into a tight plug, an additional sealant is unnecessary.
  Closed airplane doors are certainly airtight. That is assured by means of strips of rubber or synthetic material attached to the door in the form of a lip or gasket in a manner such that, when closed, the gasket overlaps the door and the adjacent wall. Rabbis Halberstadt and Goldmintz, <i>Kanfei Yonah</i>, p. 26, are prepared to categorize the materials used in such a manner as "soft." Although that categorization is probably inaccurate, in practice, the gasket certainly does create a perfect seal and is the functional equivalent of a "soft" material. Nevertheless, they point out that the gasket does not actually fill the opening; rather, the gasket totally impedes the flow of air by virtue of its location behind the opening. They cogently question whether this satisfies the requirement of <i>zamid patil</i>. Moreover, Rabbi Spitzer, <i>Kol ha-Torah</i>, no. 52, p. 184, argues that, absent the hinges and bolt securing the door, the door would not stay in place. Since the door itself is not secure in the aperture, argues Rabbi Spitzer, such an arrangement does not serve as a <i>zamid patil</i>.
  The authors of <i>Kanfei Yonah</i> also point out that the bolts and hinges securing the door are made of metal. Since they are designed to support the door, they may constitute a <i>ma'amid</i>, i.e., a supporting or stabilizing entity which lends its halakhic status to the supported or stabilized object. As a result the door itself would have the status of a metal implement that is susceptible to defilement.61<i class="footnote">Rabbis Halberstadt and Goldmintz, <i>Kanfei Yonah</i>, p. 27, observe that, if the airplane is not subject to defilement, the door is also not subject to defilement even if the door is made of metal. Under such circumstances as recorded in the Mishnah, <i>Kelim</i>, 13:6, the metal door merely “serves” the non-metal utensil and is not subject to defilement. However, those authors note that the metal handle may have an independent function, i.e., members of the crew may use the handle as a hook from which to hang bags or articles of clothing. If so, the door would be subject to defilement and hence could not serve as a <i>ẓamid patil</i>.</i> Items that are themselves subject to defilement cannot serve as a plug to generate a <i>zamid patil</i>.
  Rabbi Spitzer, <i>Kol ha-Torah</i>, no. 52, p. 183, observes that the purpose of the seal is not simply to prevent air from flowing into the interior of the utensil but to "nullify" or destroy the entranceway into the utensil and thereby create a halakhically seamless, impenetrable vessel. That is accomplished only if the seal that is in place must be broken in order to gain entrance to the vessel. R. Samuel Strashun, <i>Reshash, Kelim</i> 10:3, declares that a cork does not serve as a <i>zamid patil</i>. His rationale is that, since a bottle is customarily corked and uncorked, the cork cannot be regarded as "nullifying" the opening. That principle is also reflected in the ruling of Ra'avad, <i>Hilkhot Tum'at Met</i> 22:9, to the effect that a tight fitting "cap" does not serve as a <i>zamid patil</i>. Rabbi Spitzer understands the comment of Maharam of Rothenberg regarding a soft plug as limited to a plug that is not designed to be removed, i.e., a soft material used to plug a hole, but not to a stopper or the like designed to temporarily block the entranceway to the interior of the vessel.
  This observation is significant for another reason as well. Rabbis Halbertstadt and Goldmintz, <i>Kanfei Yonah</i>, p. 26, note 142 and <i>Teḥumin</i>, XXII, 508, observe that, above a certain height, some airplane doors would be held in place and firmly sealed by virtue of air pressure alone. However, if it is acknowledged that a sealant is necessary not simply to render the vessel airtight but to nullify the opening that factor is not at all germane.
  VII. Ma'amid-A Supporting Agent
  Quite apart from the questionable status of an airplane as a metal utensil because it is made of aluminum, a further complication arises from the fact that the material from which the plane is made is an alloy containing 15-25 percent steel. Despite the general rule that, as noted by <i>Iggerot Mosheh</i>, the halakhic identity of a substance is determined by its major component, that may not be the case with regard to a material containing an alloy designed to make the material hard enough to be fashioned into a durable utensil. Rabbis Halberstadt and Goldmintz, <i>Kanfei Yonah</i>, p. 25, and <i>Teḥumin</i>, XXII, 505, suggest that when a substance designed to strengthen a utensil or to prevent it from disintegrating is present, the identity of the utensil is determined by the identity of that substance. A substance performing such functions is known as a <i>ma'amid</i>.62<i class="footnote">See <i>Shabbat</i> 15b. As explained by <i>Tosafot, ad locum</i>, s.v. <i>me-Rabbi</i>, the principle of <i>ma‘amid</i> applied in this context is distinct from the principle of <i>ma‘amid</i> discussed in <i>Shabbat</i> 10a in describing matters such as the material holding the rungs of a ladder in place or a ring to which a signet is attached.</i> The same point is made by Rabbis Munk and Lombard, <i>Yeshurun</i>, X, 560, note 22.
  Moreover, airplanes are constructed and held together by means of nuts, bolts, screws, rivets, beams, braces and the like that are fashioned from unalloyed steel. Rabbis Halberstadt and Goldmintz, <i>Kanfei Yonah</i>, p. 25, and Rabbi Spitzer, <i>Kol ha-Torah</i>, no. 52, p. 182, suggest that those components serve to endow the entire airplane with their status as objects subject to defilement. They suggest that since those objects, which are made of pure metal, serve to hold the plane together their status is that of a <i>ma'amid</i> described by the Gemara, <i>Shabbat</i> 60a. The Sages rule that the material out of which the portion of a utensil that holds the utensil together, e.g., the sides of a ladder into which rungs are inserted or the base of a ring into which a signet is affixed, determines the halakhic status of the entire utensil.63<i class="footnote">Sources cited in support of that view include <i>Tosafot, Shabbat</i> 15b, s.v. <i>ve-Rabbi</i> and <i>Avodah Zarah</i> 75b, s.v. <i>ve-hilkhata; Kesef Mishnah, Hilkhot Kelim</i> 4:8; <i>Dvar Shmu’el</i>, no. 223; <i>Teshuvot Ḥatam Sofer, Yoreh De‘ah</i>, nos. 199, 206 and 214; <i>Pitḥei Teshuvah, Yoreh De‘ah</i> 210:32; <i>Ḥazon Ish, Kelim</i> 17:19 and <i>Yoreh De‘ah</i> 211:9; and <i>Sidrei Tohorot, Kelim</i> 13:6 (p. 134a).</i> Applying that principle, they contend that the entire airplane is subject to defilement because of the presence of essential metal components.
  Although not cited by those scholars, a quite similar issue is discussed by <i>Taz, Yoreh De'ah</i> 371:3. <i>Taz</i> reports an incident involving a corpse lying in a building or room annexed to a synagogue with a connection in the form of a window opening to the women's gallery. An unnamed rabbinic authority ruled that the curtain attached to the window be drawn in order to close the opening so that entry of <i>kohanim</i> might be permitted. <i>Taz</i> takes strong exception to that ruling for a number of reasons, in particular, because the curtain was attached to the wall with iron rings. <i>Taz</i> cites Rambam, <i>Hilkhot Tum'at Met</i> 18:3, who rules that a door held in place by a metal support without which the door would fall does not serve as an interposition preventing the spread of defilement. R. Samuel Aboab, <i>Teshuvot Dvar Shmu'el</i>, no. 223, disputes <i>Taz'</i> understanding of Rambam. According to <i>Dvar Shmu'el</i>'s interpretation of Rambam, the presence of metal to support the door does not compromise the door's ability to serve as an interposition. Rather, taking notice of Rambam's phraseology "he supports it with a key" (<i>ve-somkho be-mafteaḥ</i>, i.e., a metal object), <i>Dvar Shmu'el</i> understands Rambam as speaking of a situation in which it is the pressure of a human being, rather than the weight of the metal, that keeps the door from collapse. Thus, concludes <i>Dvar Shmu'el</i>, although a metal support would not itself effect the status of the door and impart to it the status of a metal utensil that could not serve as an interposition, nevertheless, a door that cannot remain in an upright position other than with human support cannot serve as an interposition preventing the spread of defilement.
  Another consideration advanced by the authors of <i>Kanfei Yonah</i>, p. 28, is that the passenger seats are attached to the floor of the passenger compartment by screws that they regard as having the status of a <i>ma'amid</i>. As a result, the seats, and hence the entire plane to which the seats are affixed, are subject to an entirely different category of defilement, namely, <i>tum'at midras</i>,64<i class="footnote">However, <i>Petaḥ ha-Ohel, klal</i> 5, no. 5, declares that, although the seats of a train constitute a <i>midras</i>, the rest of the compartment or car to which they are attached does not acquire the status of <i>midras</i>. Nevertheless, a <i>kohen</i> would become defiled if there is a grave directly beneath his seat.</i> i.e., the category of defilement associated with an item designed to be seated or reclined upon.65<i class="footnote"><i>Kanfei Yonah</i> concedes that <i>Ḥazon Ish, Yoreh De‘ah</i> 211:8, maintains that the seat of a motor vehicle is designed for transportation from place to place rather than for repose and accordingly, unless it is portable, is not subject to defilement as a <i>midras</i>. Cf., <i>Teshuvot Ereẓ Ẓevi</i>, no. 83, s.v. <i>ve-ḥakham eḥad</i>, who notes two contradictory views with regard to this issue expressed by <i>Tosafot, Menaḥot</i> 44b, s.v. <i>shiddah</i>, in their discussion of the status of seats of a boat. See also <i>Petaḥ ha-Ohel, klal</i> 5, no. 5; <i>Teshuvot Ereẓ Ẓevi</i>, no. 83; <i>Birkat Reẓeh</i>, no. 12; and <i>Ẓiẓ Eli‘ezer</i>, XII, no. 62, sec. 5. See also <i>supra</i>, note 32. Rabbis Halberstadt and Goldmintz, <i>Kanfei Yonah</i> and <i>Teḥumin</i>, XXII, 508, note 11, nevertheless agree that crew members and those leisure travelers who travel for pleasure do use the seat for the purpose of rest. A similar point is made by <i>Ḥazon Ish, Yoreh De‘ah</i> 211:8 and somewhat more tentatively by <i>Minḥat Shlomoh</i>, I, no. 72, sec. 4, s.v. <i>gam</i>.</i> A person sitting or reclining upon an object subject to defilement by virtue of <i>tum'at midras</i> becomes defiled if there is a corpse underneath that object. This form of defilement is entirely independent of defilement by virtue of tactile contact or by virtue of defilement associated with a "tent."
  VIII. Herev Harei Hu ke-Halal—Concomitant Permissible Defilement
  One expedient which, if viable, would permit not only an airplane traveler but any <i>kohen</i> to come into contact with a corpse has not been mentioned by any of the scholars who have addressed this issue. Many years ago, R. Shlomoh Goren suggested that a <i>kohen</i> might avoid transgressing the prohibition against defilement by wearing a watch or by otherwise being in tactile contact66<i class="footnote">However, the presence of a piece of metal in the same tent as the corpse but not in contact with the body of the <i>kohen</i> is insufficient since, although some early authorities disagree, Rambam, <i>Hilkhot Tum’at Met</i> 5:13, rules that metal, although it became defiled in the tent of a corpse, does not itself defile persons or utensils other than by tactile contact. See <i>Teshuvot ha-Rashba</i>, I, no. 476.</i> with a piece of metal previously defiled through contact with a corpse. That suggestion was posthumously published in Rabbi Goren's <i>Torat ha-Refu'ah</i> (Jerusalem, 5761) and is reprinted in <i>Assia</i>, vol. X, no. 1-2 (Nisan 5762).
  Despite the contrary view of Rabbenu Tam cited by <i>Tosafot, Nazir</i> 54b, the accepted view is that a <i>kohen</i> incurs no transgression in coming into contact with metal defiled by a corpse. As quoted in the comments of <i>Tosafot</i>, that position was formulated by Rabbenu Chaim Kohen who responded to Rabbenu Tam with a pithy comment based upon the verse "What house will you build for Me?" (Isaiah 66:1). The import of Rabbenu Chaim Kohen's retort is that, particularly in medieval times, there was no house that did not sooner or later become defiled through the presence of a corpse and hence no building that, following Rabbenu Tam's position, a <i>kohen</i> may enter. Rabbi Chaim Kohen's position is espoused by Rambam, <i>Hilkhot Avel</i> 3:2, and Rema, <i>Yoreh De'ah</i> 369:1.
  Although Rambam, <i>Hilkhot Avel</i> 3:7, rules that a <i>kohen</i> who has become defiled is nevertheless forbidden to come into any further contact with a corpse, in <i>Hilkhot Nezirut</i> 5:17 Rambam rules that, while yet in contact with the first corpse, a Nazarite (who is also forbidden to defile himself through contact with a corpse) incurs no additional penalty in touching a second corpse "since he is ongoingly profaned" (<i>meḥullal ve-omed</i>). In effect, Rambam states that defilement is one and the same whether the source is a single corpse or multiple corpses; contact with multiple corpses does not generate a greater degree of defilement. Rabbi Goren argues that the same line of reasoning can be applied to the situation of a <i>kohen</i> who is in contact with defiled metal, i.e., further simultaneous contact with a corpse does not generate additional defilement. Moreover, argues Rabbi Goren, since a <i>kohen</i> may touch defiled metal with impunity, he may also therefore simultaneously come into contact with a corpse with impunity.
  In a contribution to <i>Torah she-be-al Peh</i>, XIII (5742), republished in <i>Be-Netivot ha-Halakhah</i>, III (New York, 5711), 202-206, this author has endeavored to demonstrate that such a conclusion is incorrect. Although other early-day authorities disagree, Rambam's own position, <i>Hilkhot Avel</i> 2:15, is that a <i>kohen</i> who is permitted to defile himself through contact with the corpse of a close relative is nevertheless forbidden to come into contact with another corpse at the same time. Rambam must be understood as distinguishing between the penalty for defilement and the prohibition against a priest or a Nazarite defiling himself, <i>viz</i>., although there is no incremental defilement in the second contact and hence no additional punishment, the act of touching the second corpse is nevertheless prohibited because it is intrinsically an act that generates defilement and all such acts are prohibited.67<i class="footnote">Cf., <i>Teshuvot Ohel Mosheh</i>, II, no. 122, note 4, who in a similar manner asserts that the act of entry into the tent of a corpse is intrinsically forbidden and constitutes a transgression that is independent of any defilement entailed thereby.</i>
  Moreover, as is evident from the discussion of the Gemara, <i>Nazir</i> 42b, and Rambam's own terminology in <i>Hilkhot Nezirut</i> 5:19, any leniency with regard to simultaneous contact with a second corpse is predicated upon the consideration that a <i>kohen</i> is prohibited from coming into contact with a corpse because of the admonition "He shall not defile himself… to profane himself" (Leviticus 21:4) which is regarded as excluding from the prohibition an instance of a <i>kohen</i> who confronts no additional profanation in the act of contact. To be sure, a <i>kohen</i> defiled through contact with metal suffers no additional defilement but, since his contact with metal does not constitute an act of profanation of his priestly status, he remains bound by the prohibition against coming into contact with a corpse since that act represents not merely an act of defilement but also an act of profanation.
  The same issue of <i>Assia</i> contains two critiques of Rabbi Goren's article, one by R. Levi Yitzchak Halperin, previously published in Rabbi Halperin's <i>Teshuvot Ma'aseh Hoshev</i>, TV (Jerusalem, 5757), no. 27, and a second by Rabbi Baruch Berkowitz. Although his article does not address the many complexities of airplane travel by a <i>kohen</i>, Rabbi Berkowitz, in his final paragraph, suggests that a <i>kohen</i> who relies upon a lenient view with regard to such travel should endeavor to maximize considerations of permissibility by also wearing a metal ring on his finger. Presumably, none of the rabbinic writers who directly address the issue of plane travel by a <i>kohen</i> deem Rabbi Goren's opinion regarding simultaneous contact with metal to be a factor meriting consideration. The fact that his view was ignored is not surprising. The suggestion advanced by Rabbi Goren is hardly novel; it was advanced much earlier and rejected by <i>Teshuvot Helkat Yo'av</i>, II, no. 9, <i>anaf</i> 5 and was also considered and rejected by <i>Sha'ar Zekenim</i> cited by <i>Iggerot Mosheh, Yoreh De'ah</i>, I, no. 230, <i>anaf</i> 6.
  IX. Plastic Body Bags
  The London <i>Jewish Chronicle</i> reported that the head of the London <i>Bet Din</i>, Dayan Chanoch Ehrentreu, who is a <i>kohen</i>, insisted upon enclosing himself in a plastic body suit for the few minutes of flying time required to clear the Holon cemetery. E1 A1 refused to accommodate him on the grounds of safety concerns but British Air did so.68<i class="footnote">See <i>Jewish Chronicle</i>, November 2, 2001, p.1. See also <i>ibid.</i>, November 9, p. 1 and November 16, 2001, p. 1.</i>
  It is the consensus of halakhic opinion that the substances from which plastic is manufactured have the halakhic status of water or of unfired earthenware and hence cannot be defiled.69<i class="footnote">As noted earlier, it is for that reason that most rabbinic decisors rule that plastic utensils purchased from a non-Jew do not require immersion.</i> Therefore, a plastic container, when covered and sealed,70<i class="footnote">As opposed to an ordinary sheet of plastic which, even if wrapped around an object or person and sealed, does not have the status of a <i>keli</i> and hence cannot serve as a <i>ẓamid patil</i>.</i> would have the status of <i>zamid patil</i> and would assure any object or person confined within the container of freedom from defilement. The authors of <i>Kanfei Yonah</i>, p. 28, assume that closing the bag with tape serves as a seal but also argue that, in addition, the usual form of closure is necessary in order to establish a status of <i>zamid patil</i>. Hence they assert that the cardboard or metal tie customarily used to close plastic bags is also required. It appears to this writer that the sufficiency of tape or a tie to seal the plastic bag is open to question on the basis of the earlier-cited concern expressed by <i>Kanfei Yonah</i> regarding the status of rubber or plastic used to seal airplane doors. If, as the authors of <i>Kanfei Yonah</i> suggest, <i>zamid patil</i> requires a seal inserted within the aperture, squeezing the opening shut from the outside with tape and a tie should not be sufficient.
  Another impediment to invocation of the principle of <i>zamid patil</i> in this context is that only a container that has the status of a <i>keli</i>, or vessel, can preserve its contents from defilement when covered by a <i>zamid patil</i>. The authors of <i>Kanfei Yonah</i>, p. 28, assert that a disposable plastic bag designed for a single use does not have the status of a <i>keli</i>.71<i class="footnote">A similar issue arises with regard to the immersion of disposable cooking or eating utensils. For a review of halakhic literature addressing that question see this writer’s <i>Contemporary Halakhic Problems</i>, II (New York, 1983), 43–45.</i> However, Rabbi Spitzer, <i>Kol ha-Torah</i>, no. 52, p. 184, cites <i>Iggerot Mosheh, Oraḥ Hayyim</i>, III, no. 39, who rules that a disposable plastic cup may be used for <i>kiddush</i> and the like as well as <i>Iggerot Mosheh, Yoreh De'ah</i>, III, no. 23, in which Rabbi Feinstein rules that such a container may also be used for washing one's hands before eating bread.72<i class="footnote">The basis for <i>Kanfei Yonah</i>’s assertion, p. 28, note 154, that, unlike a plastic bag, a disposable plastic cup has the status of a <i>keli</i> because “it has the appearance of a <i>keli</i>” is unknown to this writer.</i> Rambam, <i>Hilkhot Kelim</i> 5:7, does indeed rule that a utensil designed for a single use is not subject to defilement. However, the reason for that ruling is not that a disposable utensil lacks a necessary attribute of a utensil but that, for purposes of defilement, an object must not only be a utensil but must be an item of significance (<i>ḥashuv</i>) as well. A disposable item, by its nature, is arguably not an item of significance. However, a utensil not subject to defilement because it is lacking significance may nevertheless serve as a <i>zamid patil</i> as is evident from Rambam's ruling in <i>Hilkhot Tum'at Met</i> 21:1.
  Rabbi Spitzer also points out that, although there is no indication of such a requirement in Tractate <i>Kelim, Shulḥan Arukh, Oraḥ Hayyim</i> 159:4, rules that a leather flask cannot be used as a vessel for washing one's hands unless it has a base upon which it can stand in an upright position. <i>Taz, Oraḥ Hayyim</i> 159:6, notes that other objects have the status of a <i>keli</i> even though they tip over readily and explains that the requirement for stability is limited to leather flasks and the like that collapse upon themselves and hence become containers or receptacles only when filled. Such an item becomes a <i>keli</i> or a container, explains <i>Taz</i>, only if it has a base that turns it into a receptacle. It may be noted that Rabbenu Shimshon, <i>Kelim</i> 10:4, seems to indicate that for the purpose of serving as a <i>zamid patil</i> a utensil must have a <i>tokh</i>, i.e., it must have the capacity to be a receptacle. Thus, in order for a passenger to enclose himself in a utensil having the status of a <i>zamid patil</i>, a durable plastic container having sufficient body to stand upright even when empty would be required.
  X. A Practical Suggestion
  Obviously, the optimal solution to this problem is, as E1 A1 has repeatedly promised, a change of flight plans to avoid the Holon cemetery. In the alternative, it has been suggested to this writer by a member of his congregation that an entire section of an airplane might be enclosed in a silicone container and sealed from within for the requisite amount of time with silicone putty or with some other acceptable sealant. In addition to being able to utilize a hard substance such as silicone, the advantage of constructing an entire compartment is that it would be large enough to contain sufficient oxygen so that there would be no danger of suffocation during the brief period during which that compartment must remain sealed. If deemed prudent, a canister of oxygen might be placed in the compartment during that brief period for use in case of emergency. Perhaps E1 A1 might even find it advantageous to advertise such accommodations as "<i>Kohanim</i> Klass!"
  
  Chapter XIII Silk Screened Torah Scrolls
  
  <i>The celestial lights shine upon the letters from which the sanctity of the Torah, the sanctity of Torah scrolls, phylacteries and</i> mezuzot, <i>all holy writings, are drawn. Commensurate with the sanctity with which they are written the inspiration [of holiness] and the illumination upon the letters is enhanced. Accordingly, a Torah scroll that contains a single defect is defective in its entirety for there is no proper illumination upon it that would draw sanctity from it to the nation through the power of reading from it</i>.
  R. MOSES CHAIM LUZZATTO, KALAH PITHEI HOKHMAH, INTRODUCTION
  A completed Torah scroll represents the culmination of close to a year of painstaking labor on the part of a scribe who must copy each word from an already existing scroll. The scribe must be proficient in the myriad regulations governing the fashioning of the various letters of the alphabet and must be vigilant in assuring that his calligraphy produces not only an aesthetically pleasing result but that each letter conforms to the requirements of Halakhah. Little wonder, then, that the price of a new Torah scroll, including the cost of the parchment that must be specially prepared for this sacred purpose, now ranges from a minimum of $30,000 to well over $70,000. One twelve-inch Torah scroll recently sold for $90,000. The price of that Torah reflected the lengthy period of time required to write a diminutive scroll.
  <i>Megillot, tefillin</i> and <i>mezuzot</i> must be written in a similar manner but, since less writing is involved, the cost is commensurately lower. <i>Megillot</i> sell for between $800 and $2,000. <i>Tefillin</i> parchments, exclusive of the leather containers in which the parchment scrolls are encased, cost between $350 and $1,500. <i>Mezuzot</i> range in price between $40 and $280.
  The disparity in cost largely reflects the reputation of the particular scribe and the beauty of his calligraphy. Beauty, it is said, is in the eye of the beholder. The beauty of a Torah scroll, to a significant degree, lies in a combination of objective factors including rationalization of lines and margins, symmetry of size with regard to the letters, as well as elements of style that generally are appreciated only by an expert.
  I. The Silk Screen Method
  Halakhah prescribes that each letter of a Torah scroll be formed by a qualified scribe. That requirement effectively bars use of printing or of photographic processes.1<i class="footnote">See <i>infra</i>, note 9.</i> However, recently, Rabbi Yitzchak Abadi, formerly of Lakewood, N. J., and now a resident of Har Nof in Jerusalem, has developed a novel method for use in producing Torah scrolls, <i>megillot, tefillin</i> and <i>mezuzot</i>. If acceptable, utilization of that method would dramatically reduce the cost of those sacred artifacts.
  The newly-developed process represents an adaptation of the silk screening commonly employed in various forms of commercial art. Silk screening is one of the oldest methods of printing words and images. The origin of silk screening can be traced back to early Egyptian and Chinese civilizations and was probably first developed sometime in the fifth century of the common era. Today, the process, often referred to as serigraphy, is most commonly used by commercial artists because it allows for printing upon virtually any material. Screen printed materials include most plastic containers used for food and industrial products, cosmetics, signs, tee shirts and caps.
  The screen printing process is quite simple. The fabric or mesh of which the screen is made is similar to a window screen but is much finer. Although the screen was originally made of silk, it can also be made of nylon, wire, cotton or, even more commonly at present, polyester. The stencil placed over the screen consists of a thin lacquer sheet. Ink or a coloring agent is deposited onto the screen and pressure is applied by means of a squeegee in order to pull the ink or dye over those parts of the screen not blocked by the stencil. The ink or coloring agent then passes to the surface below the screen known as the substrate. Thus, the letter or design formed on the substrate is defined by the stencil.
  The process developed by Rabbi Abadi, as described in the Tammuz 5762 issue of <i>Or Torah</i> and the Av-Elul 5762 issue of <i>Kovez Bet Aharon ve-Yisra'el</i> involves use of a piece of tightly woven silk that is stretched upon a wooden frame. Minute holes in the material are arranged in the shape of the letters of an entire column or of several columns of a Torah scroll. The silk screen is then placed over parchment and ink is poured on an unperforated area of the silk along the entire length of the right side of the screen.2<i class="footnote">The description of the process presented in these sources is probably somewhat inaccurate. The usual form of silk screening as described in the literature employs a stencil placed over the screen. The screen itself bears no letter or design. The ink is then applied to the stencil and penetrates the exposed portion of the screen. Rabbi Abadi himself, in his recently published <i>Or Yiẓḥak</i>, <i>Yoreh De‘ah</i>, no. 53, indicates that the process utilizes a plastic stencil with letters formed by small, closely-placed holes.Although unmentioned in these sources but duly noted by Rabbi Abadi in his <i>Or Yiẓḥak</i>, the parchment used in this process is scored in the proper manner, i.e., indentations in the form of straight lines (<i>sirtut</i>) are impressed upon the parchment before commencement of the screening process. Although it might be assumed that scoring is required simply as a means of assuring that the lines will be straight, many authorities regard the need for <i>sirtut</i> to be a statutory requirement of Mosaic origin and to be necessary in all circumstances. See R. Ovadiah Yosef, <i>Yeḥaveh Da‘at</i>, VI, no. 57.<i>Teshuvot Radvaz</i>, no. 156, cited by <i>Pitḥei Teshuvah, Yoreh De‘ah</i> 271:13, and <i>Bnei Yonah, Kiẓur Arukh</i>, no. 271, p. 2a, cited <i>ibid.</i>, 271:14, apparently regard <i>sirtut</i> to be necessary only in order to assure that the lines will be straight. As noted by R. Shabbetai Feinberg, <i>Afikei Meginim</i> (Vilna, 5669) 32:43, <i>Bi’urim</i>, sec. 35(4), possible ramifications of the conflicting views with regard to that question are whether the <i>sirtut</i> must endure after the writing has been completed, whether spaces between words also require <i>sirtut</i> and perhaps even whether <i>sirtut</i> may be supplied after the lines have been written. <i>Afikei Meginim</i> cites <i>Hȧgahot Mordekhai, Halakhot Ketanot</i>, sec. 561, who expresses doubt with regard to the nature of the requirement for <i>sirtut</i> and <i>Tosafot, Sotah</i> 16b, who advance the possibility that <i>sirtut</i> may be added after the writing has been completed.Curiously, R. Moshe Feinstein, <i>Iggerot Mosheh, Oraḥ Ḥayyim</i>, IV, no. 40, sec. 10, acknowledges that use of <i>sirtut</i> is designed to serve a concrete purpose and thus would not be necessary when, for example, a photographic process is employed but then seems to declare that, since <i>sirtut</i> is indeed a statutory requirement, any process in which <i>sirtut</i> would be superfluous is <i>ipso facto</i> invalid. According to <i>Iggerot Mosheh</i>, that consideration would be sufficient, in and of itself, to disqualify a silk screen process. There is, however, no hint of that consideration in the many discussions of the propriety of employment of printing presses for this purpose dating from the early part of the sixteenth century (see <i>infra</i>, note 9) or in the recent discussions of the silk screen method.Nevertheless, a rather different formulation of that argument appears in one earlier source. R. Jonah Landsopher, whose responsa collection, <i>Teshuvot Me’il Ẓedakah</i>, is familiar to rabbinic scholars, also authored a work devoted to the laws of writing Torah scrolls, <i>tefillin</i> and <i>mezuzot</i> bearing the title <i>Bnei Yonah</i> (Prague, 5562). <i>Bnei Yonah, Pilpul Arukh</i>, no. 271, p. 14b, asserts that “in printing an entire folio the <i>sirtut</i> would be superfluous with the result that the law of <i>sirtut</i> would not be an eternal commandment and far be it that we should say the commandments are limited in duration.” As formulated by <i>Bnei Yonah</i>, that argument is readily rebutted: The requirement for <i>sirtut</i> is indeed binding for posterity with regard to handwritten scrolls but was never required in a happenstance, foreseen or unforeseen, in which <i>sirtut</i> would serve no purpose. <i>Iggerot Mosheh</i>’s formulation of the argument is not open to similar challenge.</i> A broad-faced implement, similar to a squeegee, made of rubber or plastic, is then used to force the ink across the screen from right to left with the result that the ink enters and fills the gaps that have been left between the woven strands of the screen. The ink is allowed to dry and, with the removal of the screen, a full column or multiple columns of writing appear. The process is repeated for each section of the Torah scroll and, ultimately, the parchment columns subjected to this process are sewn together in the usual manner. Many individuals will readily recall using stencils as children either to trace the outlines of the alphabet or to fill in entire letters with crayon. The silk screen process, in effect, produces letters through the intermediacy of a stencil-like device.
  There are reports that a quantity of <i>megillot</i> prepared in this manner have been sold in the United Sates. An announcement of planned production of Torah scrolls and a solicitation of deposits has been posted on a web site for some time. Each Torah scroll was offered for sale at a price of $18,000 and required an initial deposit of $10,000. The estimated completion date for the first thirty Torah scrolls was given as November 2002. Nevertheless, to date, there have been no reports of actual delivery of any Torah scrolls produced in this manner.3<i class="footnote">There are unconfirmed reports that some years ago an employee of the Israeli Ministry of Religions clandestinely employed a similar process in producing <i>mezuzot</i>. The scheme was uncovered when an astute purchaser recognized that there were no variations whatsoever between different <i>mezuzot</i>, a phenomenon that is virtually impossible with regard to handwritten <i>mezuzot</i>.</i>
  II. Reaction to the Silk Screen Method
  Reports of the sale of silk screened <i>megillot</i> evoked the harsh censure of leading Israeli halakhic authorities. Letters signed by R. Joseph Shalom Eliashiv, R. Samuel ha-Levi Woszner, R. Nissim Karelitz and the members of the <i>Bet Din</i> of Jerusalem's <i>Edah ha-Haredit</i> declaring <i>megillot</i>, Torah scrolls, <i>mezuzot</i> and <i>tefillin</i> prepared in such manner to be unfit for use were published in the Israeli weekly <i>Yated Ne'eman</i>, 24 Kislev 5763. A similar letter dated 5 Kislev 5763 signed by R. Ovadiah Yosef has also been circulated. The letter signed by R. Nissim Karelitz and published in the <i>Yated Ne'eman</i> is in the form of a statement signed by three other noted rabbinic figures and is dated 16 Kislev 5763. Much earlier, an identical letter was circulated dated Tammuz 5762. In addition to the signatures appearing in the <i>Yated Ne'eman</i>, the earlier letter also bears the signatures of Rabbi Eliashiv and Rabbi Karelitz, who apparently later issued their own individual letters, as well as the signature of R. Chaim Pinchas Scheinberg, Rosh Yeshivah of Yeshivat Or Torah in the Mattersdorf section of Jerusalem. A journalistic report and critique of the process appeared in <i>Shabbat Kodesh</i>, the magazine section of the <i>Yated Ne'eman, Parashat Mikez</i> 5763.
  A detailed analysis of the objections voiced with regard to the silk screen process is presented in an article by R. Menachem Yehudah ha-Levi Gross that appeared both in the Tammuz 5762 issue of <i>Or Torah</i>, a Torah journal published by a Sephardic Torah institution in Jerusalem, Yeshivat Porat Yosef, and in the Av-Elul 5762 issue of <i>Kovez Bet Aharon ve-Yisra'el</i> published by the Torah Institutes of Karlin-Stolen. The Av 5762 issue of <i>Or Torah</i> features a relatively brief responsum by R. Ovadiah Yosef, dated 8 Sivan 5772, addressed to a son of R. Samuel Woszner making many of the same points. Rabbi Yosef's comments were penned in response to an unpublished analysis of the issues drafted by the younger Rabbi Woszner and transmitted by him to Rabbi Yosef. It is apparently that responsum by R. Ben Zion Ya'akov Woszner that was later published together with Rabbi Yosefs reply in <i>Or Yisra'el</i>, Tevet 5763. Additional letters signed by R. Samuel Woszner, R. Raphael Blum and the <i>Bet Din</i> of the <i>Edah ha-Haredit</i> also appear in the same issue of that Torah journal.
  The various letters of condemnation are univocal in substance; they differ only with regard to the tone and degree of vehemence, ranging from Rabbi Woszner's exhortation to fulfill the halakhic obligation to flee from this "act of corruption," Rabbi Eliashiv's declaration that "one who rules permissibly in the matter, the distributors, their merchants and sub-merchants are in the category of sinners and those who cause the multitudes to sin," to R. Ovadiah Yosef's comparatively mild conclusion that the proponent of this novel method "has nothing at all upon which to base himself." However, even that statement is preceded with the declaration, "The matter demonstrates that the fear of God is not upon their shoulders. Woe to them on the Day of Judgment!"
  An anonymous <i>apologia</i> in the form of a pamphlet titled <i>Ha-Emet ve-ha-Shalom Ahevu</i> countering the alleged infraction of the regulations governing the writing of Torah scrolls and the like was published in Bnei Brak (5763). A similar exposition also appears in Rabbi Abadi's recently published work, <i>Or Yizḥak</i>, no. 53. Although the process is defended in <i>Ha-Emet ve-ha-Shalom</i>, the anonymous author states in his preface in bold type that "it is certainly clear to us that this thing should not be done, as has been ruled by R. Joseph Shalom Eliashiv." However, the tenor of the concluding section of the work and of Rabbi Abadi's responsum is quite different.
  III. Halakhic Objections
  1. "Spilling" as Opposed to Writing
  The textual locus of the primary objection—and ostensibly of the proposal itself—is the statement of the Gemara, <i>Gittin</i> 19a, presented in the context of procedures to be employed in drafting of a bill of divorce: "Witnesses who do not know how to sign, we tear a blank paper on their behalf and they fill the torn spaces with ink." Deuteronomy 24:1 provides that a husband desirous of divorcing his wife must "write her a bill of divorcement." The Gemara, <i>Gittin</i> 19a, cites a <i>beraita</i> containing two opinions with regard to the procedure to be followed in situations in which the witnesses do not know how to affix their signatures. One opinion rules that a non-durable substance should be employed to outline the letters of their signatures. The witnesses, using those letters as guidelines, should write their names over that substance with ink. The second opinion maintains that "we tear a blank piece of paper on their behalf and they fill in the torn spaces with ink."
  Rashi presumes that the expression "we tear" (<i>mekar'in</i>) is not to be understood literally and that the term "paper" does not refer to a piece of paper superimposed upon the <i>get</i> itself. Rather, the reference is to the paper upon which the bill of divorce itself has been drafted and the "tearing" to which reference is made is, in actuality, a form of etching, i.e., letters forming the names of the witnesses are scratched into the paper and the illiterate witnesses append their signatures by drawing a pen over the indentations in the paper.
  Rambam, <i>Hilkhot Geirushin</i> 1:23, rules that illiterate witnesses may be assisted by having others form the letters of the witnesses' names with "spittle or something similar that does not make a durable impression" and allowing the witnesses to write over that substance. Rambam's codification is followed by <i>Shulḥan Arukh, Even ha-Ezer</i> 130:16 and <i>Hoshen Mishpat</i> 45:4. Rambam fails to record that "tearing" blank paper is also an acceptable expedient. If Rambam regarded the two talmudic opinions to be in conflict with one another and intentionally excluded the expedient of "tearing" a piece of paper it would follow that there is no basis for an assumption that a procedure involving tearing a piece of paper is a halakhically recognized form of writing. However, <i>Bet Yosef, Even ha-Ezer</i> 130, asserts that "tearing" blank paper is acceptable even according to Rambam. According to <i>Bet Yosef</i>, the two opinions recorded by the Gemara are complementary and Rambam simply recorded the expedient he regarded as representing the greater <i>novellum</i>.
  Nevertheless, even assuming that "tearing" a piece of paper is an acceptable expedient, Rashi explains that "tearing" really means scratching the shape of the letters on the document in order to enable the witnesses to fill in the indentations. According to Rashi's understanding of the text, there is no indication whatsoever that spilling ink over a stencil from which letters have been excised constitutes a halakhically acceptable form of writing.
  <i>Tosafot</i>, however, challenge Rashi's interpretation on the obvious grounds that the term <i>"mekar'in"</i> connotes actual tearing rather than etching. <i>Tosafot</i> cite Rabbenu Hannanel who explains the <i>beraita</i> literally: a piece of paper is employed to fashion a rudimentary stencil by cutting out letters and the witnesses then ink in the cut out spaces representing the letters of their names. That is also the understanding of Rabbenu Nissim, Ritva and <i>Shiltei ha-Gibborim</i> in their respective commentaries, <i>ad locum</i>, as well as of Ramah cited by <i>Tur Shulḥan Arukh, Even ha-Ezer</i> 130:16. <i>Tosafot ha-Rosh</i> further cites an objection raised by the Palestinian Talmud, <i>Gittin</i> 2:3. In order to prevent a challenge to the authenticity of the <i>get</i>, the signatures of the witnesses must be validated either by comparison of those signatures with already authenticated signatures or by testimony of witnesses who recognize the signatures. According to <i>Tosafot ha-Rosh'</i>s interpretation of the relevant passage contained in the Palestinian Talmud, the Palestinian Talmud raises an extremely cogent objection: How can signatures be verified if they are not idiosyncratic but instead are stylized by means of a stencil? Such signatures, argues the Palestinian Talmud, will have the characteristics of the pattern prepared by the person who cut the stencil rather than of the witnesses. The Palestinian Talmud's response is that the witness must be mindful not to ink in the space in its entirety but to use the torn paper merely as a guide in forming the letters of their names with the result that there will indeed be a distinctive pattern to the manner in which the letters are formed.
  Since <i>Tosafot, Gittin</i> 4a, declare that all regulations governing the "writing" of a <i>get</i> are attendant upon the signatures of a <i>get</i> as well, it might then be argued that filling in the cut out areas of a stencil or silk screen does constitute "writing" in the halakhic sense of the concept. Moreover, since there is no need for authentication of the handwriting of a Torah scroll, the cut out areas might also be inked in in their entirety. Nevertheless, filling in spaces on a stencil is readily distinguishable from simply passing ink over a stencil and allowing the blanks spaces to absorb the ink. The former involves an act of "writing" in that each letter is individually formed by a series of acts entirely similar to those of conventional writing with the stencil merely serving as a guide; the latter involves only spilling ink without any need for an act designed to fashion letters or even for the intent to do so. That distinction is expressly formulated in the name of <i>Tosafot</i> both by <i>Hiddushei Ritva ha-Yeshanim</i> and Rabbenu Crescas who state that the expedient of a torn paper may be utilized "only in the manner of writing but not by spilling ink on the paper, for that is not 'writing.' "4<i class="footnote">R. Ovadiah Yosef asserts that <i>Tosafot</i>’s citation of the Palestinian Talmud must be understood in similar vein, i.e., as stating that filling the entire space with ink is not “writing.” Thus, according to <i>Tosafot</i>, failure to leave empty space because the design of the letter has been filled with ink in its entirety is tantamount to “spilling” ink rather than to writing. Rabbi Gross, however, understands <i>Tosafot</i>’s comment as reflecting the notion explicitly formulated by <i>Tosafot ha-Rosh</i>.</i> Rabbi Abadi, <i>Or Yizḥak</i>, no. 53, sec. 3, however, insists that since the silk screen method requires application of pressure it is not to be equated with "spilling."5<i class="footnote">In support of the silk screen method, the anonymous author of <i>Ha-Emet ve-ha-Shalom Ahevu</i> cites an article by R. Samuel Eliezer Stern, a member of Rabbi Samuel ha-Levi Woszner’s <i>Bet Din</i>, published in <i>Koveẓ Eẓ Ḥayyim</i>, with regard to the suitability of a writing implement which, as described, seems to be a ball-tip pen. That implement is described as a plastic pen “from which, when placed on the parchment, the ink flows of itself without need to apply pressure to the pen.” Rabbi Stern’s concern is that the ink might be considered to be “spilled” on the parchment. He readily distinguishes between use of such an implement and the “spilling” referred to by the Palestinian Talmud. The “spilling” disqualified by the Palestinian Talmud involves casting ink which would not at all form letters if not for the stencil that prevents the ink from covering the entire page “whereas in this case the pen is in the [the scribe’s] hand throughout the writing; even though the ink emerges of itself from the hollow of the pen, nevertheless, [the scribe] pushes and pulls it over every letter….” In point of fact, it is probably the case that some minimal pressure is necessary to write even with such an implement since otherwise ink would constantly dribble from the pen unless the ball tip completely fills the opening and prevents leakage so long as it is not moved. More significantly, there is no evidence that “writing” must be the result of actual pressure brought to bear upon the writing implement. In any event, the nature of the act of writing carried out with a ball-tip pen that requires a hand to guide the ink in the formation of each letter individually is far different from that which results from use of a squeegee to push already spilled ink.</i>
  Rabbi Gross suggests that the concept formulated by Ritva and Rabbenu Crescas is rooted in a discussion of the Palestinian Talmud, <i>Gittin</i> 2:3 and <i>Shabbat</i> 12:4. Citing the verse "and he shall write her a bill of divorcement" (Deuteronomy 24:1) the Palestinian Talmud declares: " 'He shall write,' but not gouge (<i>ve-lo ha-ḥokek</i>); 'he shall write,' but not drip (<i>ve-lo ha-matif</i>); 'he shall write,' but not spill (<i>ve-lo ha-shofekh</i>)." As an example of "but not spill," the Palestinian Talmud describes a type of "invisible ink" employed by the wise men of Medenha. The ink of antiquity included a variety of components including an apparently colorless substance known as <i>mei afazim</i>. That ingredient used in isolation was the invisible ink of the "wise men of Medenha." The recipient of a seemingly blank piece of paper would make the writing appear by pouring a specially prepared ink lacking <i>mei afazim</i> over the paper. Upon coming into contact with the <i>mei afazim</i> already imbedded in the paper, the letters originally formed by the invisible <i>mei afazim</i> became clearly legible.
  The Palestinian Talmud declares that such a procedure does not constitute "writing." Rabbi Abadi, <i>Or Yizḥak</i>, no. 53, sec. 3, asserts that only a procedure of this nature is excluded by the exegetical declaration "but not spill." That principle, he asserts, does not exclude "pushing" ink in order to form letters. Nevertheless, it seems evident that the rationale reflected in the comment of the Palestinian Talmud "but not drip" is that letters formed without direction, i.e., by merely dribbling a substance capable of arranging itself into words without the hand motions involved in normal writing, is not a form of "writing" for purposes of Halakhah.6<i class="footnote">R. David Friedman of Karlin, <i>Teshuvot She’ilat David</i>, I, no. 7, sec. 2, published in <i>idem, Piskei Halakhot</i>, vol. I, rejects the use of a printing press for such purposes because of this comment of the Palestinian Talmud. Earlier scholars, including R. Moses of Provenςal, <i>Teshuvot R. Mosheh Provenςal</i>, no. 73, ruled that a printing press may not be used because the metal letters may cause “etching” or “engraving” (<i>ḥakikah</i>) by means of indentation of the parchment. See also <i>Teshuvot Maharashdam, Yoreh De‘ah</i>, no. 184. It was feared that the printing press would cause depressions in the writing surface in the form of letters. It is because of that consideration that a metal pen is not utilized for such purposes (see Rema, <i>Even ha-Ezer</i> 125:4) and it is for that reason that Rema, <i>Yoreh De‘ah</i> 271, prefers use of a reed rather than a quill. However, <i>Taz, Yoreh De‘ah</i> 271:8, and others express astonishment to the raising of that objection on the grounds that: 1) “engraving” is a recognized form of “writing” (although Torah scrolls etc. require inked letters); and 2) assuming that the letters are indeed impressed upon the writing surface by the printing press and that those letters do not constitute writing, nevertheless, filling those depressions with ink would constitute a valid form of writing no less so than if the ink is applied to a smooth surface. If so, argues <i>Taz</i>, pressing inked letters upon paper or parchment should be regarded as a proper form of writing, “for what difference is there whether he presses the pen against the paper or the paper against the letters of lead.” [Cf., however, R. Abraham I. Kook, <i>Da‘at Kohen</i>, no. 160, who maintain that writing must be in the nature of “<i>moshkhim be-shevet sofer</i>—drawing with the staff of a scribe” (Judges 5:14). <i>Da‘at Kohen</i> would presumably concede that “drawing with the staff” is not to be taken literally since “etching” is indeed a recognized form of writing. The difference then must be in precisely the concept negated by <i>Taz</i>, i.e., between pressing the inked letters against paper and pressing the paper against the letters.] Because of that objection <i>Get Pashut, Even ha-Ezer</i> 125:15, went so far as to develop the highly improbable thesis that the authorities who forbade use of such a process because it constitutes a form of “etching” did so only if the indentations are not filled in with ink. Cf., however, <i>Teshuvot Zera Emet, Yoreh De‘ah</i>, no. 117, and R. Ben-Zion Meir Chai Uziel, <i>Mishpetei Uzi’el, Yoreh De‘ah, Mahadura Tinyana</i>, no. 78, sec. 2, who rebut that suggestion.<i>She’ilat David</i> explains the nature of the objection in a novel manner. <i>She’ilat David</i> expresses the view that transfer of ink from the letter of a press to a writing surface simply by applying pressure, since it involves no hand motion, is tantamount to “spilling.” (Cf., the comment of <i>Da‘at Kohen</i> cited in the previous paragraph.) He compares the process to forming a letter out of some material and then attaching it to the parchment. <i>She’ilat David</i> regards such a procedure as invalid because it represents a form of “spilling.”Alternatively, suggests <i>She’ilat David</i>, the printing press may make depressions in the parchment in the form of letters. Although “engraving” is indeed a halakhically acceptable form of “writing,” nevertheless, the depressions made by the printing press are likely to be minimal in nature and the writing surface would soon return to its original smooth state; hence, such “engraved” letters would not constitute “writing” because they lack durability and permanence. The ink transferred to the paper or parchment, he asserts, would not itself constitute “writing” under such conditions because it is “thrown” or “spilled” into the previously formed depressions. <i>She’ilat David</i> further observes that, assuming that the depressed letters are indeed of a nature that constitutes a valid form of writing, that writing becomes invalid in the printing process: The ink cast into the “engraved” letters constitutes a “writing” superimposed upon the previous writing. The superimposed “writing,” because it is in the nature of a “spilling” which is an invalid form of writing, serves to negate the original “writing.” Thus, it is because of the fact that the printing press may cause <i>ḥakikah</i> that the transferred ink is rendered an invalid form of writing because it is “spilled” into those depressions.Also, contrary to <i>Taz, Get Pashut</i> 125:15, and others, <i>She’ilat David</i> asserts that “the manner of writing” requires that ink be brought to bear upon the writing surface to the exclusion of a process that causes the writing surface to come into contact with the ink. Accordingly, <i>She’ilat David</i> suggests that, rather than force the type against the paper, a printing press may force the paper against the type. Hence, if that indeed is the manner in which the printing process is carried out, the process is not “in the manner of writing.”For this writer’s understanding of the concern expressed by <i>Taz</i> and R. Moshe Provenςal, see <i>infra</i>, note 13.</i> More fundamentally, the exclusion "but not spill" certainly seems to connote the pouring of ink in a manner that allows the ink to form itself into letters. The silk screen process certainly falls within that category.
  2. "Dripping" as Opposed to Writing
  The Palestinian Talmud further states that the exclusion "but not drip" also precludes forming letters by means of dots and adduces a controversy with regard to whether a bill of divorce containing letters originally formed by means of dots but later connected contiguously is valid.7<i class="footnote"><i>Arukh ha-Shulḥan</i>, <i>Even ha-Ezer</i> 125:10, observes that the Babylonian Talmud, <i>Gittin</i> 20a, cites the exclusion “but not gouge” (<i>ve-lo ha-ḥokek</i>) but omits the exclusion “but not drip” and expresses doubt with regard to whether there is a controversy between those sources. <i>Arukh ha-Shulḥan</i> concludes that a <i>get</i> written in the form of “dripping” is of doubtful validity. Other authorities, e.g., R. Joseph Saul Nathanson, <i>Sho’el u-Meshiv, Mahadura Kamma</i>, III<i></i>, no. 102, assume as a matter of course that the rule formulated by the Palestinian Talmud is not a matter of controversy.</i> Ramban, <i>Gittin</i> 20a, followed by Rabbenu Crescas and Me'iri, rules that a Torah scroll written in that manner is unfit for use even though the dots are ultimately connected because "this is not writing." <i>Pri Hadash, Even ha-Ezer</i> 125:4, rules that, in light of the unresolved talmudic controversy, the validity of a <i>get</i> drafted in such a manner must be regarded as matter of doubt.8<i class="footnote">Uri Dasberg, <i>Teḥumin</i>, XVI (5756), 405f., suggests that the controversy recorded in the Palestinian Talmud is limited to drops of ink that fall or are caused to fall onto the writing surface from a distance but not to situations in which drops of ink are placed on the writing surface by a scribe and then connected by him. A similar suggestion is made by Rabbi Abadi, <i>ibid.</i>, sec. 3. Those writers fail to note that an identical interpretation of the Palestinian Talmud was earlier advanced by <i>Teshuvot She’ilat David</i>, I, no. 7, sec. 1. It is, however, difficult to read that interpretation into the comments of Ramban, Rabbenu Crescas or Me’iri. It is certainly evident that <i>Pri Ḥadash</i> and <i>Teshuvot Sho’el u-Meshiv, Mahadura Kamma</i>, III, no. 102, reject any such distinction. The assertion by R. Samuel Shapiro, <i>Teḥumin</i>, XVI, p. 406, note 7, that the statement of the Palestinian Talmud is not cited by any rabbinic decisor is simply incorrect unless he means that it is not cited in any of the halakhic précis or compendia devoted to the laws governing the writing of Torah scrolls, <i>tefillin</i> and <i>mezuzot</i>. Such omission, however, is not at all evidence of rejection. The statement of the Palestinian Talmud is cited by Rashba, <i>Gittin</i> 20a; <i>Teshuvot ha-Rashba ha-Meyuḥasot le-ha-Ramban</i>, no. 222; <i>Pri Ḥadash, Even ha-Ezer</i> 125:4; and <i>Get Pashut</i> 126:3.</i>
  Rabbi Gross observes that the silk screen method does not really employ a stencil that allows the letter to be filled in on the underlying parchment in its entirety. Instead it utilizes a series of holes in the screen through which the ink drips onto the parchment. Contiguous letters are the result of a bleeding process, i.e., a series of dots are formed and later merge into a complete letter. Rabbi Gross notes that, unlike <i>Korban ha-Edah</i> in his commentary to the Palestinian Talmud, <i>ad locum</i>, <i>Teshuvot Sho'el u-Meshiv</i>, <i>Mahadura Kamma</i>, III, no. 102, asserts that the Palestinian Talmud disqualifies the <i>get</i> only if the drops of ink were originally significantly distanced from one another but not if they are placed so close to one another as to appear in the guise of a letter. Nevertheless, Rabbi Gross maintains that even such letters are rendered acceptable only if the dots are connected by means of a pen but are unacceptable if the dots merge of their own accord to fill the page. Rabbi Abadi, <i>Or Yizḥak</i>, no. 53, sec. 3, responds to that objection by contending that the silk screen method does not cause letters to be formed by means of bleeding which serves to connect tiny droplets of ink. Rather, he insists, although the ink penetrates between the strands of the silk screen drop by drop, the ink emerges onto the parchment, not as droplets, but as a complete letter.9<i class="footnote">It is for these reasons, i.e., because the method involves “spilling” or “dripping,” that the silk screen process is less acceptable than a lithograph or printing process. Cf., however, <i>Melekhet Shamayim, Binah</i> 6:12 and <i>Keset ha-Sofer, Lishkat ha-Sofer</i> 28:2, who regard the printing process as also cqnstituting a form of “dripping.” On the other hand, quite apart from Rabbi Abadi’s peremptory dismissal of Rabbi Kook’s view, <i>ibid.</i>, sec. 4, the objection to use of printing methods raised by <i>Da‘at Kohen</i>, no. 160, <i>viz.</i>, that writing must be in the nature of “<i>moshkhim be-shevet sofer–drawing</i> with the staff of a scribe” (Judges 5:14) does not seem to be applicable to the silk screen process which employs a squeegee. See also R. Abraham David of Buczacz, <i>Da‘at Kedoshim</i> (Lemberg, 5656), in his comments on <i>Bnei Yonah</i>, 271:6, sec. 9.Although perhaps surprising to present-day students of Halakhah, there were noted authorities who regarded the early, manually operated printing press to be acceptable for the production of sacred artifacts provided, of course, that an acceptable type of ink is used and that the text is printed on parchment rather than on paper. The earliest authorities to address the status of books produced by means of a printing press were Italian authorities, R. Menachem Azaryah of Fano, <i>Teshuvot Rema mi-Panu</i>, no. 93, and R. Moses Provenςal, <i>Teshuvot R. Mosheh Provenςal</i>, I, no. 73. Those responsa were written during the early days of the printing press when Italy was the major center of Hebrew printing and address the issue of whether printed volumes are endowed with the sanctity of Holy Writ. [For later discussions of that issue see R. Daniel Trani, <i>Ikkarei Ha-Dat, Oraḥ Ḥayyim</i> no. 8, sec. 12; <i>Afikei Meginim</i> 32:43, sec. 36 (introduction); R. Isaac Elchanan Spektor, <i>Teshuvot Ein Yiẓḥak</i>, nos. 5–7; R. Naphtali Zevi Judah Berlin, <i>Teshuvot Meshiv Davar</i>, II, no. 80; R. David Zevi Hoffmann, <i>Teshuvot Melammed le-Ho’il, Yoreh De‘ah</i>, no. 89; <i>Iggerot Mosheh</i>, IV, no. 40, sec. 10; and <i>Sedei Ḥemed, Pe’at ha-Sadeh, Kellalim, Ma‘arekhet ha-Kaf, klal</i> 12.] Rema mi-Panu and R. Moses Provenςal disagreed with regard to this matter. Rema mi-Panu, as understood by most authorities, regarded the printing process to be comparable to writing while R. Moses Provenςal deemed the process to be an unacceptable form of “gouging” or whittling. Magen Avraham 32:57; <i>Get Pashut</i> 125:15; <i>Mas’at Binyamin</i>, no. 99; and <i>Pri Ḥadash, Even ha-Ezer</i> 125:4, are among the authorities who ascribe a negative position with regard to use of a printing press for such purposes to <i>Teshuvot Rema mi-Panu</i>, no. 93. Cf., however, <i>Teshuvot Zera Emet, Yoreh De‘ah</i>, no. 117 and R. Ben-Zion Meir Chai Uziel, <i>Mishpetei Uzi’el, Yoreh De‘ah, Mahadura Tinyana</i>, no. 78, sec. 2 and <i>idem.</i>, <i>Piskei Uzi’el</i>, no. 31.<i>Teshuvot Mas’at Binyamin</i>, no. 99 and <i>Maharaẓ Ḥayes, Yoma</i> 38a, are cited by Rabbi Gross as sanctioning use of a printing process. That is also the position of <i>Taz, Oraḥ Ḥayyim</i> 284:2 and <i>Yoreh De‘ah</i> 271:8; <i>Bet Shmu’el, Even ha-Ezer</i> 125:3; <i>Eliyahu Rabbah, Oraḥ Ḥayyim</i> 284:1; <i>Be’er Heitev, Yoreh De‘ah</i> 271:8; and R. Issachor Ber Katz whose view is expressed in a responsum appended to <i>Likkutei Ha-Pardes le-Rashi</i> (Amsterdam, 5475), p. 25.R. Yom Tov Lippman Heller, renowned as the author of <i>Tosafot Yom Tov</i>, in his comments on Rosh, <i>Hilkhot Tefillin</i> 8:23, unequivocally endorses use of the printing press “for every matter that requires writing.” Magen Avraham 32:57, as well as 284:8, is in basic agreement with the opinion of the authorities who endorse the use of a printing press. Nevertheless, despite his refusal to disqualify the printing process as a valid form of “writing,” Magen Avraham discourages use of a printing press for production of Torah scrolls. Magen Avraham, however, rules printed <i>tefillin</i> and <i>mezuzot</i> to be invalid because the letters of the latter must be written in consecutive order. Magen Avraham asserts that it is impossible to assure that such will be the case if a printing process is employed because not all portions of the paper come into simultaneous contact with the metal letters. See also R. Ovadiah Yosef, <i>Yeḥaveh Da‘at</i>, VI, no. 59. The identical position is advanced by R. Eleazar Fleckles, <i>Teshuvah me-Ahavah</i>, III, no. 391, who astonishingly remarks that “no decisor ever noticed” the point.In apparent disagreement with <i>Magen Avraham, Iggerot Mosheh, Oraḥ Ḥayyim</i>, IV, no. 40, sec. 10, asserts that simultaneous transcription, e.g., by means of photography, does not satisfy the requirement of consecutiveness. <i>Da‘at Kohen</i>, no. 160, expresses doubt with regard to this matter insofar as the validity of <i>tefillin</i> and <i>mezuzot</i> is concerned. See, however, <i>Afikei Meginim</i> 32:43, <i>Bi’urim</i>, sec. 35 (3), cited <i>infra</i>, note 20, who asserts that even Magen Avraham would accept simultaneous transcription as satisfying the requirement for consecutive writing.A permissive view with regard to the inherent validity of the printing process is also adopted by <i>Pri Ḥadash, Even ha-Ezer</i> 125:4 [Cf., however, <i>Pri Ḥadash, Oraḥ Ḥayyim</i> 691:6, as noted by <i>Matteh Yehudah, Oraḥ Ḥayyim</i> 691:6 and <i>Sedei Ḥemed</i>, II, <i>Ma‘arekhet ha-Dalet</i>, sec. 48. <i>Yeḥaveh Da‘at</i>, VI, no. 57, regards <i>Pri Ḥadash</i>’s acceptance of printing processes as limited to the drafting of a <i>get</i>.]; <i>Teshuvot Panim Me’irot</i>, I, no. 6; <i>Teshuvot Be’er Sheva</i>, no. 43; R. Jacob Emden, <i>Mor u-Keẓi’ah</i> 32; <i>idem, Migdal Oz, Even Boḥen</i> 2:30; <i>Knesset Yeḥezkel</i>, no. 37; <i>Rav Pe‘alim</i>, II, <i>Oraḥ Ḥayyim</i>, no. 24; <i>Erekh ha-Shulḥan, Oraḥ Ḥayyim</i> 691:1; <i>Maḥaẓit ha-Shekel, Oraḥ Ḥayyim</i> 490:9 and 559:1; <i>Arukh ha-Shulḥan, Yoreh De‘ah</i> 271:39 and <i>Even ha-Ezer</i> 125:37; <i>Ikkarei ha-Dat, Hilkhot Sefer Torah</i> 31:5; <i>Petaḥ ha-Devir</i>, I, 32:10, II, <i>Kuntres Shenayim Yeshalem</i> 32:39 and IV, 289f; and R. Yitzchak Pelaggi, <i>Yafeh le-Lev</i>, I, <i>Oraḥ Ḥayyim</i> 32:7 and III, <i>Yoreh De‘ah</i> 271:2. <i>Yafeh le-Lev</i>, however, rules that use of a printing press is valid only <i>post factum</i>. See also <i>Paḥad Yiẓḥak</i>, II, s.v. <i>defus</i>.As noted by <i>Arukh ha-Shulḥan, Yoreh De‘ah</i> 271:39 and <i>Even ha-Ezer</i> 125:37, as well as by <i>Yeḥaveh Da‘at</i>, VI, no. 57, those authorities permit only use of a manual flat-bed press operated by a Jew. The additional problems presented by use of a rotary press powered by electricity in which there is no manual impression of inked letters upon the printed page could not have been addressed by the many scholars who considered the matter before the advent of electricity. See also <i>Da‘at Kohen</i>, no. 160 and R. Samuel ha-Levi Woszner, <i>Teshuvot Shevet ha-Levi</i>, IV, no. 158. Cf., <i>Sedei Ḥemed</i>, VII, <i>Ma‘arekhet Ḥameẓ u-Maẓah</i>, sec. 13; <i>Teshuvot Maharsham</i>, II, no. 16; <i>Teshuvot Yerushat Peleitah</i>, no. 4; <i>Teshuvot Ereẓ Ẓevi</i>, II, no. 72; and R. Shlomoh Zalman Braun, <i>She‘arim Meẓuyanim be-Halakhah</i>, I, 47:13, note 4 and <i>ibid.</i>, III, 110:15, note 23. For sources discussing use of electricity in instances in which a human act is required, e.g., the baking of <i>maẓah</i> and the fashioning of <i>ẓiẓit</i>, see R. Levi Yitzchak Halperin, <i>Ha-Ḥashmal be-Halakhah</i>, I (Jerusalem, 5738), 69–135.[It seems to be the case that the many authorities, including <i>Magen Avraham, Oraḥ Ḥayyim</i> 284:8 and <i>Taz, Oraḥ Ḥayyim</i> 284:3, who sanction use of a printed text for the reading of the <i>haftorah</i> permit only the use of a text printed on a flat-bed press manually operated by a Jew. Since these authorities sanction use of a printed text only because they recognize printing as a form of “writing,” it would follow that any form of printing that does not involve a direct human act as the proximate cause of the production of the printed text is in the nature of a <i>gerama</i>, i.e., an indirect cause, and is accordingly disqualified because it is not an act of writing directly performed by a human being.This is apparently the view of R. Joseph Shalom Eliashiv as reported in his name in <i>He‘arot le-Masekhet Gittin</i> (Jerusalem, 5763), p. 77. Rabbi Eliashiv is reported to have remarked that he is unaware of a basis for reading the <i>haftorah</i> from a printed text “in our day” when printing is carried out by means of electricity. A second objection recorded in that work in the name of Rabbi Eliashiv is based upon the fact that the prophetic works are printed on paper rather than on parchment. Magen Avraham, however, explicitly sanctions utilization of works printed on paper for the reading of the <i>haftorah</i>.]R. Zevi Hirsch Chajes, in his glosses to <i>Yoma</i> 38a, makes the astonishing claim that at least a rudimentary type of printing was known and used during the tana’itic period. The Mishnah, <i>Yoma</i> 38a, reports that a certain Ben Kamzar was severely censured by the Sages because he was adroit in executing a certain method of writing but refused to impart it to others. The Gemara, <i>Yoma</i> 38b, amplifies that report in stating that Ben Kamzar was able to seize four reeds between his fingers and write four different letters simultaneously. Rashi explains that this procedure represents the optimal method of printing the Divine Name. [R. Abraham ben Mordecai ha-Levi, <i>Teshuvot Ginat Veradim, Oraḥ Ḥayyim, klal</i> 2, no. 10, s.v. <i>aḥar kakh</i>, explains that simultaneous writing of the full letters of the Divine Name constitutes symbolic affirmation of the unitary nature of the Deity.] Maharatz Chajes questions the plausibility of a literal reading of that account and explains that the reference must be to four letters each cast in the form of a separate press or stamp that could be held between the fingers and wielded simultaneously in order to form four printed letters. The point is reiterated by Rabbi Chajes in his <i>Teshuvot Maharaẓ Ḥayes</i>, no. 11. In that responsum, Maharatz Chajes notes that an empty space of the width of a letter in the middle of a word serves to disqualify a Torah scroll. If reeds were held by Ben Kamzar between his fingers, the space between the letters would have been greater than the width of a letter. Accordingly, argues Maharatz Chajes, the “reeds” held between his fingers must have been lead stamps broad enough not to leave gaps between the letters. Although Maharatz Chajes’ point is well taken, it is entirely likely that the singular skill of Ben Kamzar included the ability to wield the reeds between his fingers in a manner that enabled him to write broad letters so that there were no resultant gaps. Rabbi Abadi, <i>Or Yiẓḥak</i>, no. 53, sec. 4, reports that an alternative explanation of the process employed by Ben Kamzar is presented by <i>Yonat Elem</i>, II, no. 31. Unfortunately, this writer has been unable to identify that work.Among the many authorities who rule that printing may not be employed in the production of Torah scrolls and the like are <i>Teshuvot R. Mosheh Provenςal</i>, I, no. 73; <i>Baḥ, Oraḥ Ḥayyim</i> 691; <i>Teshuvot Ḥavvot Ya’ir</i>, nos. 16, 109 and 184; <i>Shiyarei Knesset ha-Gedolah, Hagahot Bet Yosef, Oraḥ Ḥayyim</i> 691:15; <i>Levush, Oraḥ Ḥayyim</i> 284:1; <i>Eliyahu Rabbah, Oraḥ Ḥayyim</i> 691:5; <i>Bnei Yonah, Kiẓur Arukh</i>, no. 271, p. 2b and <i>Pilpul Arukh</i>, no. 271, pp. 14a-15a; <i>Birkei Yosef, Oraḥ Ḥayyim</i> 691:1 and <i>Yoreh De‘ah</i> 282:1; <i>Teshuvah me-Ahavah</i>, III, no. 391; <i>Teshuvot Maharam Shik, Oraḥ Ḥayyim</i>, no. 6; <i>Hagahot R. Akiva Eger, Yoreh De‘ah</i> 271:9; <i>Teshuvot Ḥatam Sofer, Oraḥ Ḥayyim</i>, no. 64; <i>Siaḥ Sofer, Binat Adam</i> 1:1; <i>Ikkrei ha-Dat, Oraḥ Ḥayyim</i> 36:35; <i>Keset ha-Sofer, Lishkat ha-Sofer</i> 28:2 and 28:7; <i>Sha‘arei Efrayim</i> 7:59; <i>Petaḥ ha-Dvir</i>, II, 7a and III, 28a; <i>Teshuvot Maharsham</i>, III, no. 357; <i>Be’erot ha-Mayim</i>, no. 13; <i>Ḥemdat Yamim</i>, I, no. 12; <i>Bnei Ḥayyei</i>, no. 281, p. 63b; <i>Teshuvot Ẓofnat Pa’aneaḥ</i>, II, no. 26; <i>Ḥazon Ish, Oraḥ Ḥayyim</i> 156: <i>le-siman</i> 284; <i>Da‘at Kohen</i>, no. 160; <i>Piskei Uzi’el</i>, no. 31; <i>Yabi‘a Omer</i>, III, <i>Yoreh De‘ah</i>, no. 21, sec. 4; <i>Yeḥaveh Da’at</i>, VI, no. 57; and <i>Ḥazon Ovadiah: Purim</i>, sec. 16. See also <i>Afikei Meginim</i> 32:43, <i>Bi’urim</i>, sec. 35.For a comprehensive survey of the literature regarding use of the printing process for these purposes see Yitzchak Ze’ev Kahana, <i>Meḥkarim be-Sifrut ha-Teshuvot</i> (Jerusalem, 5733), pp. 272–305. See also Abraham Berliner, <i>Ketavim Nivḥarim</i> (Jerusalem, 5729), II, 118–124.Photographic processes are explicitly decried by a number of authorities, including <i>inter alia, Teshuvot Maharsham</i>, III, no. 357; <i>Teshuvot Ẓofnat Pa’aneaḥ</i>, II, no. 26; <i>Teshuvot Mishpetei Uzi’el, Yoreh De‘ah, Mahadura Tinyana</i>, no. 78; <i>Teshuvot Yabi‘a Omer</i>, IV, <i>Yoreh De’ah</i>, no. 21, sec. 4; <i>Yeḥaveh Da’at</i>, VI, no. 57; <i>Iggerot Mosheh, Oraḥ Ḥayyim</i>, IV, no. 40, sec. 10; and <i>Teshuvot Shevet ha-Levi</i>, IV, no. 158. See also <i>Teshuvot Bet Av, Oraḥ Ḥayyim</i>, no. 26; <i>Teshuvot Maharsham</i>, III, no. 357, and <i>Teshuvot Yabi‘a Omer</i>, IV, <i>Yoreh De‘ah</i>, no. 21, sec. 4.</i>
  3. Not "In the Manner of Writing"
  In his rejection of the validity of the silk screen method, Rabbi Yosef does not focus upon the nature of the silk screen method as a process tantamount to connecting dots. Instead he cites <i>Teshuvot ha-Rashba ha-Meyuḥasot le-Ramban</i>, no. 122, who states that the procedure described by the Palestinian Talmud results in an invalid <i>get</i> because "we require that [the scribe] write in the manner of those who write"10<i class="footnote">Use of a printing press was regarded to be impermissible because it is “not in the manner of writing” by <i>Teshuvot Zera Emet, Yoreh De‘ah</i>, no. 117; <i>Teshuvot She’ilat David</i>, no. 7, sec. 2; <i>Da‘at Kedoshim, Bnei Yonah</i> 271:6, sec. 9; <i>Da‘at Kohen</i>, no. 160; and <i>Piskei Uzi’el</i>, no. 31. Cf., the position of <i>Bnei Yonah, Kiẓur Arukh</i>, no. 271, p. 2b and <i>Pilpul Arukh no</i>. 271, p. 15a, cited <i>infra</i>, note 12.</i> and concludes that, <i>a fortiori</i>, the silk screen method is unacceptable "for after he drips the ink he does not perform an act of writing or of moving a pen." In effect, Rabbi Yosef categorizes the forming of letters by means of droplets of ink as not being "in the manner of writing." Unlike Rabbi Abadi, Rabbi Yosef does not regard the pushing of a squeegee to be comparable to maneuvering a pen.
  Rabbi Gross advances an even more basic consideration to disqualify the silk screen process on the grounds that it is "not in the manner of writing." Torah scrolls, <i>tefillin, mezuzot</i> etc. must be written "in the manner of writing" (<i>derekh ketivah</i>). For that reason, <i>Shulḥan Arukh, Oraḥ Hayyim</i> 32:5, cites authorities who rule that if a right-handed individual writes <i>tefillin</i> with his left hand they are unfit for use.11<i class="footnote">Cf., <i>Bet Shmu’el, Even ha-Ezer</i> 123:4 and <i>Minḥat Ḥinnukh</i>, no. 34, <i>Mosekh ha-Shabbat, ha-kotev</i>.</i> In "writing," letters are formed by discrete hand motions that give shape to the letters. In silk screening, the motions of the hand do not give the letters their distinct shape; rather, the shape is an indirect result that arises from the presence of the stencil.
  In addition, R. Moshe Sofer, <i>Teshuvot Hatam Sofer</i>, VI, no. 29, s.v. <i>ma-she-katav ma'alato</i>, declares that speedwriting executed by invoking supernatural powers is no different from writing with the left hand, i.e., it is not "in the manner of writing." Accordingly, argues Rabbi Gross, the rapid manner in which silk screen writing is performed is not "in the manner of writing." However, it should be noted that in discussing the halakhic status of a printing press, R. Abraham I. Kook, <i>Da'at Kohen</i>, no. 160, endeavors to demonstrate that, for purposes of Sabbath strictures, simultaneous writing of multiple letters constitutes a capital transgression.12<i class="footnote">Cf., <i>Piskei Uzi’el</i>, no. 31, who distinguishes between Sabbath strictures and “writing” for other purposes of Halakhah. <i>Piskei Uzi’el</i> regards photographing a printed text as a capital transgression despite the fact that many letters are reproduced simultaneously. The prohibition, he contends, is in the category of “<i>roshem</i>,” a derivative (<i>toladah</i>) of “writing” rather than writing proper. Such a distinction was actually formulated much earlier by R. Eli’ezer ben Judah of Worms, <i>Rokeaḥ</i>, no. 280. [R. Shalom Mordecai Schwadron, <i>Teshuvot Maharsham</i>, III, no. 357, inaccurately cites <i>Rokeaḥ</i> as ruling that utilization of a printing press does not constitute writing. In point of fact, R. Eli’ezer of Worms, who died in 1238, more than two hundred years prior to the invention of the printing press, employed the term “<i>defus</i>” in describing a stamp that creates an imprint by forcing the pliable material upon which the imprint is to be made to enter depressions hollowed in the stamp. As a result, a picture or design is created in relief. Such a procedure is tantamount to “gouging” that causes “writing” to appear in relief and hence does not constitute “writing” for purposes of drafting a <i>get</i>. Nevertheless, <i>Rokeaḥ</i> declares that, insofar as <i>Yom Tov</i> strictures are concerned, use of such a stamp is prohibited either as “writing,” as creating a picture or as “<i>roshem</i>.”] The printing process, since it involves “printing the entire page simultaneously with one action,” is regarded by <i>Piskei Uzi’el</i> as “not in the manner of writing.” Cf., <i>Bnei Yonah</i>, no. 271, <i>Pilpul Arukh</i>, p.15a, cited <i>supra</i>, note 10, who categorizes the process as entirely outside the parameters of writing. <i>Bnei Yonah</i> asserts that the expression “but not gouge” is paradigmatic in nature and serves to exclude “all things that are not called ‘writing.’” With regard to printing, <i>Bnei Yonah</i> remarks, “And it is clear that this is not called writing.” The selfsame observation is certainly applicable to the silk screen process. See also <i>idem</i>, <i>Kiẓur Arukh</i>, no. 271, p. 2b.<i>Bnei Yonah, Pilpul Arukh</i>, no. 271, p. 15a, also cites <i>Sod ha-Ẓimẓum</i>, authored by Ari, in asserting that for kabbalistic reasons “The beginning of the letters must be dots.” Obviously, the printing process does not form letters in that manner. See also <i>ibid.</i>, p. 14a, where <i>Bnei Yonah</i> asserts that “each letter must be formed with its intent (<i>kavvanato</i>) and its form, but a general intent for the entire sheet is of no avail.”</i> Consequently, <i>Da'at kohen</i> regards simultaneous formation of multiple letters to be "in the manner of writing." Moreover, as Rabbi Abadi, <i>Or Yizḥak</i>, no. 53, sec. 1, notes, the Gemara, <i>Yoma</i> 38b, describes a process employed to write four letters simultaneously. <i>Teshuvot R. Mosheh Provenςal</i> declares explicitly that there is no obligation to form letters individually or to write every word separately. The process described by <i>Hatam Sofer</i> is readily distinguishable from the simultaneous writing described in that source and in <i>Da'at Kohen</i> in that the process described by <i>Hatam Sofer</i> involved harnessing supernatural powers. It is readily understandable that utilization of supernatural powers is not "in the manner of writing" and, moreover, it may be argued that writing effected by means of such powers is not to be deemed the product of a human act.
  Rabbi Gross also suggests that for the procedure to be carried out "in the manner of writing," it is necessary for the writing implement to come into direct contact with the paper or parchment being written upon. Silk screening involves the interposition of a screen between the squeegee and the parchment and hence, contends Rabbi Gross, the process may not be consistent with "the manner of writing."
  4. Hok Tokhot (Gouging)
  Another objection to the silk screen process is based upon analysis of the rule that excludes whittling from the category of "writing." The Gemara, <i>Gittin</i> 20a, cites the verse "and he shall write" as excluding gouging in the form of whittling a substance so that letters appear in relief (<i>ḥok tokhot</i>). Of course, pouring ink upon a stencil in silk screening is quite different from whittling. Nevertheless it may be argued that the rationale underlying the exclusion of whittling is equally applicable to the silk screen process. Rashi explains that whittling is not a form of "writing" because the whittler "did not form the letters." <i>Tosafot, Sanhedrin</i> 21b, similarly explain that in the process of whittling "the writing appears of its own." Me'iri, in his <i>Kiryat Sefer, ma'amar bet</i>, part 2, s.v. <i>ve-af</i>, is even more explicit in explaining that the exclusion is predicated upon the consideration that such a procedure does not constitute writing "for he did not perform an act upon the letters themselves and the basic writing is made of itself." One who forces ink over a silk screen certainly has not shaped or formed the letters and hence by performing an act "upon the letters themselves" the resultant writing can accurately be described as having come about "of itself" in that it is produced by the screen rather than by the writer. Indeed, as Rabbi Gross points out, whittling does involve acts that shape the letter but is unsatisfactory because those acts are performed in a manner that is external to the letter itself. The silk screen process is even further removed from the category of "writing," contends Rabbi Gross, by virtue of the fact that, in pressing ink upon the screen, the human hand performs no act with regard to the actual shaping of the letters.13<i class="footnote">It should be noted that many of the authorities who ruled use of a printing press to be impermissible, including the first to do so, R. Moses Provenςal, <i>Teshuvot R. Mosheh Provenςal</i>, no. 73, prohibited its use because they regarded the printing process to be an illicit form of “engraving (<i>ḥok tokhot</i>).” Prohibition of the use of a printing press on those grounds is astonishing since ordinary engraving is indeed deemed to be “writing.” Only whittling, i.e., chiseling away the external area so that the remaining material assumes the form of a letter, is disqualified. It seems to this writer that those scholars did not intend to depict printing as “engraving” or “whittling” in a literal sense but were alluding to the underlying reason that renders whittling unacceptable, <i>viz.</i>, because it involves an act external to the letter rather than an act intrinsic to the letter itself. That deficiency, they maintain, is also present in the printing process. Indeed, a careful reading of the reasoning of R. Moses of Provenςal reveals that he terms the printing process <i>ḥok tokhot</i> because “no act is performed upon the letters themselves.” This also appears to be how the comments of R. Moses Provenςal were understood by <i>Piskei Uzi’el</i>, no. 31 and R. Abraham Joseph Yani, the editor of <i>Teshuvot R. Mosheh Provenςal</i>, no. 73, note 21.See also <i>Levush, Even ha-Ezer</i> 125:4 and <i>Bet Shmu’el, Even ha-Ezer</i> 125:4, who explains that a metal pen should not be utilized in writing a <i>get</i> because it constitutes a form of “etching” and “etching” should be eschewed lest it be confused with “whittling” and an onlooker be misled in assuming that the latter is acceptable as well. <i>Teshuvot Zera Emet, Yoreh De‘ah</i>, no. 117, asserts that use of a printing press for production of Torah scrolls etc. should be banned for the same reason.</i>
  5. The Divine Names
  Another problem with regard to the silk screen process is the writing of the many occurrences of the Divine Name. <i>Shulḥan Arukh</i>, Oraḥ Hayyim 32:19 and <i>Yoreh De'ah</i> 276:2, records the rule that the Divine Name, in each of its occurrences, must be written explicitly "for the purpose of the sanctity of the Divine Name" (<i>le-shem kedushat ha-Shem</i>). Many authorities, including, <i>inter alia</i>,, <i>Bnei Yonah</i> 276:2; <i>Divrei Hamudot</i>, <i>Halakhot Ketanot, Hilkhot Sefer Torah</i> 4:11; <i>Ma'adanei Yom Tov, Halakhot Ketanot</i>, <i>Hilkhot Sefer Torah</i> 4:5; <i>Eliyahu Rabbah</i> 32:36; <i>Teshuvot Bet Shlomoh, Yoreh De'ah</i>, II, no. 163; <i>Teshuvot Dvar Shmu'el</i>, no. 76; <i>Melekhet Shamayim</i>, no. 5; <i>Birkei Yosef Yoreh De'ah</i> 276:3; <i>Bet Aharon</i>, no. 12; <i>Teshuvot Maharam Shik, Yoreh De'ah</i>, no. 276; <i>Kol</i> <i>Ya'akov, Yoreh De'ah</i> 274:4; R. Yitzchak Dov Bamberger, <i>Melekhet Shamayim, Binah</i> 9:3; and <i>Hazon Ish, Oraḥ Hayyim</i> 6:13, maintain that such sanctification must be performed verbally prior to the writing of each and every Divine Name.
  However, <i>Taz, Yoreh De'ah</i> 274:1, rules that at least <i>post factum</i>, such sanctification is necessary only at the beginning of each writing session.14<i class="footnote">See also Rema, <i>Oraḥ Ḥayyim</i> 32:19. <i>Me’asef le-Khol ha-Maḥanot</i> 32:206 notes that <i>Sefer ha-Eshkol</i>, II, <i>Hilkhot Sefer Torah</i>, no. 13, espouses a position identical to that of <i>Taz. Me’asef le-Khol ha-Maḥanot</i> adds the comment that <i>Sefer ha-Eshkol</i> was not available to early scholars but, had they been aware of that source, they would not have disputed <i>Taz</i>’ ruling. See also <i>Teshuvot Maharsham</i>, I, no. 156 as well as <i>Teshuvot ve-Heshiv Mosheh</i>, no. 52; <i>Teshuvot Mayim Ḥayyim, Yoreh De‘ah</i>, no. 39; and R. Shlomoh Kluger, <i>Teshuvot Shenot Ḥayyim</i>, II, <i>Sefer Stam</i>, no. 19.</i> <i>Taz'</i> position is itself the subject of differing interpretations. Some authorities, including <i>inter alia, Bnei Yonah</i> 276:2, <i>Teshuvot Bet Shlomoh, Yoreh De'ah</i>, II, no. 163, <i>Be'er Heitev, Yoreh De'ah</i> 276:2; <i>Teshuvot Maharam Shik, Yoreh De'ah</i>, no. 276; <i>Teshuvot Zera Emet</i>, I, Oraḥ Hayyim, no. 6; <i>Emek She'elah, Yoreh De'ah</i>, no. 77; and <i>Pitḥei Teshuvah, Yoreh De'ah</i> 276:1, maintain that, although according to <i>Taz</i>, a single verbal declaration is sufficient, it is nevertheless necessary for the scribe to sanctify the Divine Name mentally in the course of his writing prior to each of its occurrences.
  However, <i>Pri Megadim, Eshel Avraham</i> 32:32, followed by <i>Teshuvot Avnei Nezer, Yoreh De'ah</i>, no. 359, sec. 1 and no. 374, sec. 3 and <i>Keset ha-Sofer, Lishkat ha-Sofer</i> 11:26 as well as by Mishnah Berurah 32:96, understands <i>Taz'</i> position to be that, <i>post factum</i>, even absence of subsequent mental sanctification does not invalidate the Divine Name. Mishnah Berurah, 32:19, <i>Bi'ur Halakhah</i>, s.v., <i>be-teḥilah</i>, rules that <i>Taz'</i> position may be relied upon only in cases of doubt with regard to whether the scribe verbally sanctified a particular Divine Name.15<i class="footnote">See, however, R. David Yosef, <i>Halakhah Berurah</i>, II, 32:91, <i>Birurei Halakhah</i>, cited sec. 79, who reports that his father, R. Ovadiah Yosef, ruled that <i>Taz</i>’ opinion may be relied upon <i>post factum</i>, Rabbi Yosef apparently revised his earlier negative opinion recorded in <i>Yeḥaveh Da‘at</i>, VI, no. 57, upon becoming aware of the statement of <i>Sefer ha-Eshkol</i>. See <i>supra</i>, note 14.</i> <i>Kol Ya'akov</i> 274:4 asserts that the majority of authorities reject <i>Taz'</i> position.16<i class="footnote">This is also the position of <i>Teshuvot Halakhot Ketanot</i>, I, no. 67 and <i>Me’asef le-Khol ha-Maḥanot</i> 32:206.</i>
  Rabbi Gross takes it for granted that, according to those who reject <i>Taz'</i> position and require sanctification of each Divine Name individually, use of the silk screen process cannot be contemplated. However, <i>Teshuvot Mas'at Binyamin</i>, no. 99, cogently asserts that multiple Divine Names may be written consecutively with a single sanctification. <i>Maharik, Yoreh De'ah</i>, no. 277, and <i>Teshuvot Devar Shmu'el</i>, no. 76, similarly seem to maintain that a number of Divine Names may be written with a single sanctification provided there is no interruption in the writing. <i>Melekhet Shamayim, Binah</i> 9:3, also emphasizes that, when there is no interruption, a single sanctification is sufficient. Similarly, <i>Binat Sofer</i> 1:1 declares that use of a printing press cannot be proscribed for that reason because "even if there are many Divine Names it is possible to sanctify them at one time." If so, the use of a squeegee to produce an entire column may well be regarded as no different from consecutive writing of multiple Divine Names. Nevertheless, R. Ovadiah Yosef, <i>Yeḥaveh Da'at</i>, VI, no. 57, rules that printing methods are invalid because of the requirement that each occurrence of the Divine Name must be sanctified separately.17<i class="footnote">Cf., however, <i>Halakhah Berurah</i>, II, 32:91, <i>Birurei Halakhah</i>, sec. 79, cited <i>supra</i>, note 15.</i> A similar view was earlier advanced by <i>Bnei Yonah</i>.18<i class="footnote">See also R. Menachem Pollak, <i>Teshuvot Ḥelek Levi, Oraḥ Ḥayyim</i>, no. 26.</i>
  Rabbi Gross further argues that, as noted by numerous authorities, including <i>Bi'ur ha-Gra, Oraḥ Hayyim</i> 32:19; <i>Pitḥei Teshuvah, Yoreh De'ah</i> 276:9; and <i>Teshuvot Avnei Nezer, Yoreh De'ah</i>, no. 359, secs.1-3, the scribe must at least be cognizant of the fact that he is transcribing the Divine Name.19<i class="footnote">See also Rabbenu Yonah, <i>Iggeret ha-Teshuvah</i>, no. 5 and R. Yitzchak Dov Bamberger, <i>Melekhet Shamayim, Binah</i> 9:2.</i> Rabbi Gross regards that requirement to be incapable of fulfillment in conjunction with employment of the silk screen method presumably because the requisite mental act is marred by virtue of the fact that the person applying the ink is also cognizant of the other words that he is forming. Rabbi Abadi, <i>Or Yizḥak</i>, no. 53, sec. 5, asserts that awareness of the fact that other words are being formed simultaneously does not interfere with cognizance of the writing of the Divine Name.
  Another consideration with regard to the writing of Divine Names is the issue of the order in which the letters of the Divine Name must be formed. R. Abraham ben Mordecai ha-Levi, <i>Teshuvot Ginat Veradim, Oraḥ Hayyim, klal</i> 2, nos. 10 and 12, asserts that the letters of the Divine Name must be written in consecutive order.20<i class="footnote">Cf., however, <i>Afikei Meginim</i> 32:43, <i>Bi’urim</i>, sec. 35(3), who maintains that the letters of the Divine Name must be written consecutively but endeavors to demonstrate on the basis of a variety of sources, including the description of the method developed by Ben Kamzar, that simultaneous writing is tantamount to writing in consecutive order. Although, as noted <i>supra</i>, note 9, Magen Avraham rejected use of a printing press for <i>tefillin</i> and <i>mezuzot</i> because of the requirement for writing the words of those sacred artifacts in consecutive order, <i>Afikei Meginim</i> asserts that Magen Avraham did so only because it is unlikely that the entire text would be printed simultaneously. However, the Divine Name, since it contains but few letters, he asserts, can indeed be printed simultaneously.</i> That is also the position of <i>Teshuvot Noda bi-Yehudah, Mahadura Tinyana, Yorah De'ah</i>, no. 74 and supporting evidence is advanced by <i>Minḥiat Hinnukh</i>, no. 436. <i>Teshuvah me-Ahavah</i>, III, no. 391, similarly remarks that the letters of the Divine Name "must certainly be written consecutively." That also seems to be view of the <i>Zohar, Va-Yikra</i> 11b. Nevertheless, the position that the letters of the Divine Name must be written consecutively is refuted by <i>Teshuvot Avnei Nezer, Yoreh De'ah</i>, no. 30, and, as demonstrated by <i>Teshuvot Yabi'a Omer</i>, III, <i>Yoreh De'ah</i>, no. 14, is contradicted by numerous other authorities.21<i class="footnote">See in particular <i>Petaḥ ha-Devir</i>, I, 32:10, who emphasizes that Magen Avraham certainly rejected this view. See also <i>Petaḥ ha-Devir</i>, II, <i>Kuntres Shenayim Yeshalem</i> 23:3 and IV, 289f.</i> In any event, in employment of the silk screen method, ink is spread across each column from right to left with the result that the letters of each Divine Name are indeed produced in consecutive order.
  6. Copying from an Existing Scroll
  Based upon a statement of the Gemara, <i>Megillah</i> 18b, Shulḥan Arukh, Yoreh De'ah 274:2, rules that a Torah scroll cannot be written from memory but must be copied from an already existing Torah scroll. Rabbi Gross endeavors to demonstrate that this requirement is not based upon the fear that a fallible memory may lead to inadvertent scribal error but is an intrinsic procedural rule.22<i class="footnote">It seems to this writer that at least one early-day authority maintained that the requirement that the Torah scroll be copied from an existent scroll is based entirely upon concern for scribal error. The Gemara, <i>Megillah</i> 18b, declares that this requirement is limited to Torah scrolls but does not apply to <i>tefillin</i> and <i>mezuzot</i> because everyone is familiar with the content of the relatively brief Torah sections contained in <i>tefillin</i> and <i>mezuzot</i>. That statement might well be understood as simply expressive of the rationale underlying what is fundamentally a Mosaic rule but leaving intact the statutory requirement with regard to Torah scrolls as a rule that does not admit of exceptions. However, Rashba, in his commentary <i>ad locum</i>, queries why a person who is thoroughly familiar with the entire Torah must copy from an existing scroll since such an individual is as familiar with the entire Torah as others are with the content of <i>tefillin</i> and <i>mezuzot</i>. Rashba responds with the statement that all persons who write <i>tefillin</i> and <i>mezuzot</i> are familiar with their contents and consequently there is no need for a decree requiring use of a master text. However, not every scribe is proficient in the entire Torah and therefore “we decree” that even the most knowledgeable individuals shall not write from memory lest others less proficient than they do so as well. Rashba clearly regarded the regulations requiring copying to be rabbinic in nature and designed simply to prevent scribal error. Me’iri, <i>ad locum</i>, also comments that the rule is designed to prevent error and adds the comment that “even the most perfect” may err.On the other hand, <i>Or Zaru‘a</i>, I, <i>Hilkhot Tefillin</i>, no. 548, appears to be of the opinion that the requirement is based upon an entirely different consideration and is Mosaic in origin. <i>Or Zaru‘a</i> explains that <i>tefillin</i> and <i>mezuzot</i> need not be copied from existing texts for the same reason that recitation of biblical sections that are commonly committed to memory is not a violation of the Mosaic rule that the Written Law may not be recited from memory. Thus, for <i>Or Zaru‘a</i>, writing <i>tefillin</i> and <i>mezuzot</i> from memory is an exception to the rule against reciting the Written Law without benefit of a text. In positing such an exception, <i>Or Zaru‘a</i>, in effect, extends the ambit of the general prohibition. <i>Or Zaru‘a</i> apparently maintains that the Mosaic rule declaring that the Written Law may not be recited from memory but only read from a printed text also demands that no portion of the Written Law may be committed to writing other than by way of copying from an existing text. According to <i>Or Zaru a</i>’s analysis, that stricture would serve to prevent utilization of printing or silk screen methods unless it is maintained that the stencil or printing press is itself “a writing” and that, in effect, it is the written document that is reproducing itself. Rabbi Abadi, <i>Or Yiẓḥak</i>, no. 53, sec. 7, however, inexplicably dismisses the problem with the cryptic comment that, even according to <i>Or Zaru‘a</i>, “it is simple (<i>peshita</i>) that there is no such deficiency.” The anonymous author of <i>Ha-Emet ve-ha-Shalom</i> adds the puzzling observation “for he writes from the written,” i.e., from the stencil. That comment seems to ignore the fact that vocalization is ordinarily required even though the scribe is copying from an existing scroll. Thus, according the stencil the status of a written document does not eliminate the requirement for vocalization.</i> R. Jonah Landsopher, <i>Bnei Yonah</i> (Prague, 5562), no. 271, <i>Pilpul Arukh</i>, p. 14a, observes that the Palestinian Talmud, <i>Megillah</i> 4:1, reports that Rabbi Meir wrote a <i>megillah</i> from memory and then copied a second <i>megillah</i> from it. Thereupon, Rabbi Meir secreted the first <i>megillah</i> and used the second for the reading of the <i>megillah</i>. Assuredly, the first <i>megillah</i> was free of error, else it could not have been used as a master copy for purposes of copying the second.23<i class="footnote">It is indeed the case that <i>Shulḥan Arukh, Yoreh De‘ah</i> 279:1, rules that an invalid Torah scroll may not be retained for longer than thirty days. As evident from the comment of <i>Taz</i>, <i>Yoreh De‘ah</i> 281:1, that ruling is predicated upon the fear that, since it is not immediately evident that the scroll is invalid, retention might lead to inadvertent use of the scroll for public reading. That consideration is not applicable to printed scrolls that cannot be mistakenly regarded as valid. Similarly, that consideration would not apply to the silk screen used as a “master copy.” That, however, is not the case with regard to scrolls produced by means of the silk screen process since such scrolls are indistinguishable from valid ones.<i>Noda bi-Yehudah, Yoreh De‘ah, Mahadura Tinyana</i>, no. 181, asserts that, for some authorities, it is forbidden to use an illicitly written scroll for private study, not because of the consideration that the invalid scroll might inadvertently be used for public reading, but because of the transgression involved in the writing of the scroll. That consideration does not apply to use of printed texts since, at least in our historical epoch, the printing of the Written Law is entirely permissible. In that regard, the silk screen is no different from the metal type used in a printing press.</i> Nevertheless, the first <i>megillah</i> was not useable because it had not been copied from an already existing <i>megillah</i>.24<i class="footnote">However, as discussed <i>supra</i>, note 23, it is forbidden to retain an invalid scroll in one’s possession. Nevertheless, a scroll copied therefrom would not be invalid because of the requirement that the invalid scroll be secreted.</i> Similarly, argues Rabbi Gross, scrolls produced by a silk screen process are not acceptable because they have not been copied from existing scrolls. A similar objection was earlier advanced by R. Ben-Zion Meir Chai Uziel, <i>Piskei Uzi'el</i>, no. 31, with regard to use of a printing press for such purposes.
  Rabbi Gross' argument is, however, subject to challenge. It is quite correct that subsequent proofreading does not retroactively validate a scroll written from memory. Nevertheless, it is not at all clear that, other than being an uncorrupted text, the scroll used as a master copy need necessarily be written in conformity with all halakhic requirements. Proof: As is evident from the anecdote concerning R. Meir, a <i>megillah</i> may be used as a master copy even if it itself was not copied from another scroll. Thus, for example, it is possible that a scroll written by a minor, although itself invalid, might nevertheless be used for purposes of copying.25<i class="footnote">See the previously cited comment of <i>Teshuvot Ḥatam Sofer</i>, VI, no. 29. <i>Ḥatam Sofer</i> explains that Moses was permitted to write Torah scrolls for each of the tribes on the last day of his life which occurred on a <i>Shabbat</i> because that writing required use of a supernatural power. Hence, since it was not in “the manner of writing,” Moses’ transcription of the Torah scrolls involved no infraction of Sabbath strictures. However, for the very reason that the scrolls were not transcribed “in the manner of writing” those scrolls could not have been valid. The purpose of those scrolls must have been to provide a master copy to each of the tribes for purposes of copying. [Cf., Rabbi Abadi, <i>Or Yiẓḥak</i>, no. 53, sec. 3, who maintains that those scrolls were valid but incongruously asserts that they cannot be considered to have been written by a human hand.] If so, <i>Ḥatam Sofer</i> must have maintained that an invalid scroll may be used as a master scroll for purposes of copying. Although invalid scrolls must be secreted lest they be mistaken for valid scrolls that consideration could not have served to prevent the original writing of valid scrolls. Similarly, Rabbi Meir had no compunction against using an invalid <i>megillah</i> for purposes of copying when no other <i>megillah</i> was available. Moreover, as is evident from the ruling of <i>Shulḥan Arukh, Yoreh De‘ah</i> 279:1, an invalid scroll may be retained for a maximum period of thirty days.</i> If so, the stencil used in the silk screen process may perhaps be regarded as the master scroll and the scroll produced from it may perhaps be regarded as functionally "copied" from the screen.26<i class="footnote">This is, in effect, the view expressed by <i>Afikei Meginim</i> 32:43, <i>Bi’urim</i> sec. 35 (1), in his discussion of the validity of the use of a printing press. <i>Afikei Meginim</i> concludes with the remark that the matter requires further reflection. That view was, in fact, earlier rejected by <i>Bnei Yonah, Pilpul Arukh</i>, no. 271, p. 14b, who asserts that this requirement is not designed simply to obviate scribal error.</i>
  7. Vocalization Prior to Writing
  As recorded by Shulḥan Arukh, Yoreh De'ah 274:2, there is also a requirement that the scribe pronounce each word before committing it to writing. However, both Rashi and <i>Tosafot, Menaḥot</i> 30a, as well as numerous other early authorities, indicate that vocalization is necessary only in order to prevent scribal error. That consideration certainly is not germane with regard to the silk screen process. However, <i>Baḥ, Oraḥ Hayyim</i> 32:15, states that vocalization is mandated in order to cause the sanctity of the spoken work to become attached to the written letters. Although <i>Baḥ</i>'s position is cited by <i>Shiyarei Knesset ha-Gedolah, Hiddushei Bet Yosef, Oraḥ Hayyim</i> 32:20, and by a number of other latter-day authorities, the weight of opinion is not in accordance with his view. Nevertheless, citing <i>Baḥ, Mishnah Berurah</i> 32:36 rules that if the scribe does not vocalize the words prior to writing them the scroll can be regarded as valid only <i>post factum</i>. Rabbi Abadi, <i>Or Yizḥak</i>, no. 53, sec. 7, concedes that the silk screen method is not compatible with the requirement for vocalization as understood by <i>Baḥ</i>.27<i class="footnote">In discussing the validity of use of a printing press, <i>Afikei Meginim</i> 32:43, <i>Bi’urim</i>, sec. 35(1), suggests that vocalization at the time of setting the type may suffice for all copies printed subsequently but concludes with the remark that the matter requires further reflection.</i>
  IV. Conclusion
  The silk screen method is certainly subject to challenge on the basis of its inherent incompatibility with a number of considerations:
  1. The position of <i>Baḥ</i>, who maintains that each word must be vocalized before writing even when there is no chance of scribal error.2. The view of the authorities who maintain that each word must be copied from an existing text and that an error-free "master text" is not sufficient for this purpose.3. The view of the authorities who maintain that multiple Divine Names cannot be sanctified even simultaneously.4. <i>Iggeret Mosheh</i>'s28<i class="footnote">See <i>supra</i>, note 2.</i> view that any method in which <i>sirtut</i> serves no purpose is disqualified.5. The view of <i>Teshuvot Zera Avraham, She'ilat David, Da'at Kohen</i> and <i>Piskei Uzi'el</i>29<i class="footnote">See <i>supra</i>, note 10.</i> that the printing press is not acceptable because "it is not in the manner of writing."6. The kabbalistic view expressed by Ari30<i class="footnote">See <i>supra</i>, note 12.</i> regarding the particular form of writing that governs the manner in which the writing of each letter is begun.
  Nevertheless, a competent rabbinic decisor might, with justification, conclude that those are minority views and consequently rely upon the weight of authority in ignoring such concerns. The crucial consideration is whether or not the silk screen method constitutes either "spilling" or "dripping" and hence is ruled invalid by the Palestinian Talmud. Since the validity of Torah scrolls, <i>tefillin</i> and <i>mezuzot</i> is a matter of biblical law, any doubt, if the there is indeed such doubt, must be resolved in the negative. Thus, it would be necessary either to adduce strong precedent in support of the validity of a method similar to the silk screen process or to advance a compelling logical distinction between that method and the processes described by the Palestinian Talmud. In this writer's opinion, the requisite demonstration has not been forthcoming.
  
  Chapter XIV Miscellaneous
  
  <i>Bar Kappara expounded: Which is the small section upon which all substantive principles of Torah are contingent? "In all your ways acknowledge Him, and He will direct your paths " (Proverbs 3:6)</i>.
  YALKUT SHIM'ONI, PROVERBS 3
  Torah Readings on Fast Days
  In the Nisan-Tammuz 5757 issue of <i>Or ha-Mizraḥ</i>, Rabbi Sholom Rivkin, Chief Rabbi of St. Louis, Missouri, presents an interesting query addressed to him by a resident of a home for senior citizens. The aged and infirm residents did not anticipate success in mustering the requisite quorum of persons who would refrain from food on the approaching Fast of Esther and realized they would be unable to read the Torah section designated for fast days. But, since the fast occurred on a Monday, they sought guidance with regard to whether they should proceed with the usual reading of the initial section of the forthcoming weekly portion. Rabbi Rivkin reports that, despite difficulties he had with the position, he hesitated to respond in the affirmative because of the view of R. Meir Arak, <i>Teshuvot Imrei Yosher</i>, II, no. 124, sec. 2, who rules that under such circumstances there should be no Torah reading. The identical question arises with some frequency in small congregations in which several worshippers are feeble or sickly. In a responsum describing such a situation, R. Abraham David Horowitz of Strasburg, <i>Kinyan Torah be-Halakhah</i>, I, no. 119, also finds it difficult to rule <i>contra</i> the decision of <i>Imrei Yosher</i>.1<i class="footnote">Rabbi Horowitz cites <i>Teshuvot Maharam Shik, Oraḥ Ḥayyim</i>, no. 290, who rules that a person who has eaten food less than the size of a dried date may be counted toward the necessary quorum for the purpose of Torah reading. He accordingly suggests that, if possible, such persons be advised to eat and drink small amounts during the early hours of the fast, with requisite intervals between each small portion of food and drink, so that <i>Va-Yeḥal</i> may be read. That advice contradicts the well known view of R. Chaim Soloveitchik, recorded in <i>Ḥiddushei ha-Graḥ ve-ha-Griz al ha-Shas</i>, no. 45, who maintains that the sick are entirely excluded from the rabbinic decree regarding fasting and that a sick person who does fast has fulfilled no <i>miẓvah</i> whatsoever. It follows from R. Chaim’s position that a sick person, even though he may be fasting, cannot be counted toward the requisite quorum for reading <i>Va-Yeḥal</i>. That view is not necesarily contradicted by <i>Maharam Shik</i> who addresses a situation involving, not a sick person, but persons in a locale in which cholera was prevalent. It was the accepted medical wisdom of the day that a person debilitated as the result of fasting was at an increased risk of contracting the disease. (See, for example, R. Shlomoh Kluger, <i>Ha-Elef Lekha Shlomoh, Oraḥ Ḥayyim</i>, no. 351.) A person who suffers from no malady but eats on a fast day in order to ward off disease, although he may certainly do so, is exempt by reason of <i>force majeure</i> rather than by virtue of total exclusion from the rabbinic decree. A similar distinction between a person actually ill and a person who must take prophylactic action to avert danger was made by R. Chaim in a different context. See R. Moshe Sternbuch, <i>Mo‘adim u-Zemanim</i>, I, no. 60. It should also be noted that, with regard to calling only a fasting person to the reading of the Torah, Mishnah Berurah 567:20 declares that a person who intends to break his fast later in the day is not considered to be fasting. <i>Bi’ur Halakhah</i> 565:3 makes the same observation with regard to a quorum for recitation of the <i>anenu</i> prayer.</i>
  <i>Imrei Yosher</i> maintains that "since the reading of <i>Va-Yeḥal</i> was ordained [for such occasions], when there are no fasters, there is no [Torah] reading." <i>Imrei Yosher</i> advances another consideration based upon the comments of <i>Teshuvot Hatam Sofer, Oraḥ Hayyim</i>, no. 184, in support of his ruling. <i>Hatam Sofer</i> expresses reservations with regard to the basic premise that <i>Va-Yeḥal</i> is not read on public fast days in the absence of a quorum of six persons fasting. <i>Hatam Sofer</i> suggests that this rule may apply only to fasts voluntarily undertaken by a group of individuals but that Torah reading on a public fast day is ordained for all by virtue of rabbinic decree. Hence, argues <i>Imrei Yosher</i>, even though this view was not definitively held even by <i>Hatam Sofer</i>,2<i class="footnote">Somewhat surprising is the assertion that R. Yitzchak Ze’ev Soloveitchik reported that this was indeed the opinion of his father, R. Chaim of Brisk. It is claimed that one year, during what is described as a period of “physical weakness,” R. Chaim directed that the Fast of Gedaliah not be observed. The fast day that year occurred on a Thursday. Despite initial hesitation, R. Chaim is reported to have subsequently stated that <i>Va-Yeḥal</i> “could have been read.” See R. Chaim Aaron Tombak, <i>Niḥoḥa shel Torah</i> (New York, 5763), pp. 228f. It is not entirely clear whether R. Chaim maintained that the proper reading in such circumstances is <i>Va-Yeḥal</i> in full accordance with <i>Ḥatam Sofer</i>’s suggestion or whether he maintained that either reading would be appropriate. The latter view would be compatible with the thesis advanced by R. Naphtali Zevi Judah Berlin, <i>Ha‘amek She’elah, Parashat Va-Yishlaḥ</i> sec. 33. See <i>infra</i>, note 5.</i> it nevertheless serves to generate significant doubt with regard to whether, in the absence of persons fasting, the appropriate reading on occasions on which the fast occurs on a Monday or Thursday is <i>Va-Yeḥal</i> or the weekly section. Public reading of the Torah is accompanied by prononcement of blessings. Accordingly, since the section to be read is a matter of doubt, argues <i>Imrei Yosher</i>, the blessings may not be pronounced for fear that they may be pronounced in vain.
  Left unexamined by <i>Imrei Yosher</i> is why both Torah sections should not be read in order to satisfy the doubt, but without the accompanying blessings. In a responsum devoted to an entirely different matter, R. Naphtali Zevi Judah Berlin (Netziv), <i>Teshuvot Meshiv Davar</i>, I, no. 16, marshals evidence showing that, as opposed to the Babylonian Talmud, the Palestinian Talmud maintains that rabbinic decree forbids any public reading of the Torah in the absence of the accompanying blessings.3<i class="footnote">Parenthetically, it should be noted that this responsum addresses an issue presented by a benevolent society in Cincinnati whose members wished to engage in such public Torah reading in conjunction with festivities marking the dedication of a new Holy Ark. <i>Meshiv Davar</i> declares that, even absent a formal prohibition, such public reading is “foolishness and hubris (<i>shetut ve-gasut ruaḥ</i>).” Cf., however, the comments of Mahari Praggi published in R. Abraham ben Mordecai ha-Levi, <i>Ginat Veradim, Oraḥ Ḥayyim, klal</i> 2, no. 23, as well as the response of <i>Ginat Veradim, ibid.</i>, no. 24 and <i>Ma’amar Mordekhai</i> 566:5 cited by R. Ovadiah Yosef, <i>Mi-Shi’urei Maran ha-Rashal</i>, I, no. 26, s.v <i>be-Ma’amar Mordekhai</i>. Cf., also, the discussion of R. Moshe Feinstein, <i>Iggerot Mosheh, Oraḥ Ḥayyim</i>, II, no. 18, regarding the inclusion of a minor in a quorum for purposes of reading of the Torah. The implication of Netziv’s comment for Torah reading by women’s prayer groups is self-evident.R. Rafael Shapiro (a son-in-law of the author of <i>Meshiv Davar</i>), <i>Torat Refa’el</i>, I, no. 2, apparently without being aware of the ruling of <i>Meshiv Davar</i>, similarly declares that no public reading should take place in conjunction with the dedication of a new Torah scroll. See, however, R. Gavriel Zinner, <i>Nit‘ei Gavri’el: Hakhnasat Sefer Torah</i> (Jerusalem, 5758), 23:1–2, notes 1–4, who cites a number of authorities who sanctioned the practice. See also <i>ibid., Bi’urim</i>, no. 8, as well as the citation of the practices of various communities, <i>ibid.</i>, pp. 293–306. See also <i>Teshuvot Divrei Yo’el</i>, I, no. 9.</i>
  Nevertheless, <i>Imrei Yosher</i>'s view is contradicted by numerous other authorities. The earliest explicit reference to this question seems to be by the eighteenth-century Sephardic authority, R. Ishmael ben Abraham Isaac ha-Kohen, <i>Teshuvot Zera Emet, Oraḥ Hayyim</i>, no. 86, s.v. <i>ve-gam</i>, who asserts that, under such circumstances, the appropriate section of the weekly portion should be read. R. Betzalel Stern, <i>Teshuvot be-Ẓel ha-Hokhmah</i>, I, no. 2, sec. 5, infers from the comment of a much earlier work, <i>Eliyahu Rabbah</i> 566:4, that this position was espoused by the author of that compendium. Unlike other authorities who require only six or seven fasting persons for the reading of <i>Va-Yeḥal, Eliyahu Rabbah</i> asserts that the requisite quorum is ten such individuals. Nevertheless, he agrees that, for the morning reading on a fast day that occurs on a Monday or Thursday, six fasting individuals suffice "for there is no additional blessing" in supplanting the usual reading with the reading for a fast day. Rabbi Stern deduces that <i>Eliyahu Rabbah</i> must maintain that, absent a quorum of persons fasting, the weekly section must be read because, otherwise, there would indeed be an "additional blessing." A similar ruling is recorded by R. Abraham Argo'iti, <i>Yerekh Ya'akov, Oraḥ Hayyim</i>, no. 45, in the name of earlier Sephardic scholars. <i>Pri Megadim, Oraḥ Hayyim, Mishbezot Zahav</i> 566:7, similarly maintains that a person who is not fasting may be counted toward a quorum of ten for the purpose of reading from the Torah if the fast occurs on a Monday or Thursday.
  <i>Imrei Yosher'</i>s position is clearly contradicted by the ruling of <i>Sha'arei Efrayim</i> 8:106, followed by <i>Kaf ha-Hayyim, Oraḥ Hayyim</i> 666:8, and R. Chaim Pelaggi, <i>Sefer Hayyim</i> 36:7, with regard to a congregation of fasting individuals who, on a fast day that occurred on a Monday or Thursday, read the weekly section in error. Those authorities rule that, once the incorrect reading is begun, it need not be interrupted in order to read <i>Va-Yeḥal</i>. Thus, they clearly maintain that the rabbinic ordinance concerning Torah reading on Monday and Thursday is not totally abrogated by virtue of the fast. Rather, rabbinic authorities simply allowed substitution of <i>Va-Yeḥal</i> for the usual reading.4<i class="footnote">This concept is also reflected in the ruling of <i>Magen Avraham, Oraḥ Ḥayyim</i> 566:8, who rules that a person who is not fasting may nevertheless be called to the reading of the Torah when the fast day occurs on a Monday or Thursday. See also R. Zevi Pesach Frank, <i>Mikra’ei Kodesh: Ha-Yamim ha-Nora’im</i>, I, no. 35.</i> That analysis of the rabbinic enactment is clearly enunciated by R. Naphtali Zevi Judah Berlin, <i>Ha'amek She'elah, Parashat Va-Yishlaḥ</i>, sec. 33.5<i class="footnote"><i>Ha‘amek She’elah</i>, in stating that reading the portion of the following week is not an absolute obligation (<i>le-ikuva</i>), seems to advance the view that, unlike the earlier ordinance requiring consecutive readings on each <i>Shabbat</i>, Ezra’s ordinance recorded in <i>Bava Kamma</i> 82a, amplifying a still earlier edict requiring Torah reading on Monday and Thursday so that a three-day period not elapse without Torah, did not mandate the reading of any particular section. Accordingly, the reading of a section of the weekly portion is simply a customary practice. The reading of <i>Va-Yeḥal</i> on communal fast days is a later practice based upon <i>Masekhet Soferim</i> 17:7. Hence the “custom” that arose with regard to reading <i>Va-Yeḥal</i> on all fast days, including those that occur on Monday and Thursday, as the practice is categorized by <i>Sha‘arei Efrayim</i>, is readily understandable. Otherwise, it is difficult to comprehend how the earlier ordinance could have been abrogated without nullification by a <i>Bet Din</i> “greater in wisdom and number” and supplanted by a different practice. Cf., however, <i>Teshuvot Zera Emet, Oraḥ Ḥayyim</i>, no. 86, s.v. <i>ibra</i>, who explicitly declares that the original ordinance required reading from the portion of the following <i>Shabbat</i>.The view that the Torah reading on Monday and Thursday need not necessarily be from the weekly portion is clearly enunciated in sources cited by <i>Kaf ha-Ḥayyim, Oraḥ Ḥayyim</i> 496:58. The accepted rule is that a resident of Erez Yisra’el who is temporarily in the Diaspora should not be called to the reading of the Torah on the second day of <i>Yom Tov</i>. Cf., R. Yerachmiel David Fried, <i>Yom Tov Sheni ke-Hilkhato</i> (Jerusalem, 5748), 9:3. Nevertheless, R. Moshe Hagiz is quoted as ruling that such an individual may be called to the Reading of the Torah for an <i>aliyah</i> added to the statutory minimum if the second day of the festival occurs on a Monday or Thursday in a locale that permits more than the statutory five <i>aliyot</i>. That ruling is ascribed to the “Rabbis of Safed” who permitted the practice on the grounds that such days are “days of Torah reading for all Israel and what difference is there between [reading from] the weekly portion or from another portion?” The author of <i>Yom Tov Sheni ke-Hilkhato</i> 9:2, citing R. Shlomoh Zalman Auerbach, makes the same point with regard to counting such an individual as part of a quorum of ten for purposes of reading the Torah on the second day of <i>Sukkot</i> or <i>Pesaḥ</i> that occurs on a Monday, Thursday or <i>Shabbat</i>.</i> Hence those who are exempt from fasting or who do not read <i>Va-Yeḥal</i> for any other reason remain obligated to read the otherwise designated section. Indeed, <i>Sha'arei Efrayim</i> draws attention to the fact that, as cited by <i>Tur Shulḥan Arukh</i>, some authorities maintain that the weekly portion must always be read in conjunction with morning services on a Monday or Thursday. <i>Sha'arei Efrayim</i> describes the accepted practice of substituting <i>Va-Yeḥal</i> as simply a custom with the result that the reading of the weekly portion suffices to satisfy the rabbinic requirement.
  Rabbi Rivkin cites R. Shabbetai Lipshitz, in his commentary on <i>Sha'arei Efrayim</i>, <i>Sha'arei Raḥamim</i> 8:67; <i>Avodat ha-Gershuni</i>,6<i class="footnote">The reference seems to be to <i>Teshuvot Avodat ha-Gershuni</i>, no. 57. If so, the citation by R. Simchah Bamberger in a separate brief responsum that was appended to <i>Zekher Simḥah</i> by his grandson is presented out of context. <i>Avodat ha-Gershuni</i>’s ruling was formulated with regard to the voluntary fasts of <i>Bahab</i> (Monday and Thursday) subsequent to <i>Sukkot</i> and <i>Pesaḥ</i>. In that context, <i>Avodat ha-Gershuni</i> states unexceptionably that, in the absence of a quorum of persons fasting, the usual section of the week should be read rather than <i>Va-Yeḥal</i>. The reason that one might think otherwise is presumably the consideration presented <i>supra</i>, note 4, i.e., that the basic ordinance allows for the reading of any Torah section. <i>Avodat ha-Gershuni</i> does not necessarily disagree with that thesis; his ruling may simply reflect the fact that there exists no custom to supplant the usual reading of the weekly portion on a fast that is not talmudically ordained unless there is a quorum of ten persons fasting.</i> quoted by R. Simchah ha-Levi Bamberger, <i>Zekher Simḥah</i>, no. 70; and R. Abraham Chaim Noe, <i>Shenot Hayyim</i> (Jerusalem, 5781), chap. 21, sec. 6, who similarly espouse a position contrary to that of <i>Imrei Yosher. Imrei Yosher</i>'s position is also rejected by R. Chaim Pinchas Luria, <i>Meshiv Halakhah</i>, II, no. 14. Thus, in the absence of a quorum of fasters, the weight of authority requires the reading of the weekly Torah section when the fast day occurs on a Monday or Thursday.7<i class="footnote">Yet another, but rather strange, opinion was advanced by a Tunisian scholar, R. Moshe Satrug, <i>Yashiv Mosheh</i> (Djerba, 5684), no. 149. <i>Yashiv Mosheh</i> rules that, if there is no quorum of fasters, the selection from the weekly portion should be read. However, if <i>Va-Yeḥal</i> is read with a proper quorum in another synagogue in the same city then, on a Monday or Thursday, all synagogues should read <i>Va-Yeḥal</i> in order that they not transgress the injunction against establishing separate assemblies (<i>lo titgodedu</i>).</i>
  She-Heḥeyanu upon Purchase of a House
  As recorded in <i>Shulḥan Arukh, Oraḥ Hayyim</i> 223:3, acquisition of a house or of a valued object8<i class="footnote"><i>Arukh ha-Shulḥan</i> 223:5 remarks that some individuals refrain from pronouncing this blessing because of lack of certainty with regard to how greatly they value the object. R. Moshe Feinstein, <i>Iggerot Mosheh, Oraḥ Ḥayyim</i>, III, nos. 80 and 81, takes it for granted that the blessing must be pronounced upon purchase of an automobile or of valuable furniture. Nevertheless, <i>Pri Megadim, Mishbeẓot Zahav</i> 223:4, reports that the prevailing custom is not to recite the blessing upon the purchase of utensils. That is also the opinion of R. Shneur Zalman of Liadi, “Seder Birkhot ha-Nehenin” 12:5, published in his <i>siddur</i>, <i>Torah Or</i>; and <i>Ben Ish Ḥai, Shanah Rishonah, Parashat Re’eh</i>, sec. 5. See also R. Joseph Isaac Lerner, <i>Sefer ha-Bayit</i> 21:4, 21:6 and 21:9.</i> occasions the pronouncement of the <i>she-heḥeyanu</i> blessing ("who has kept us alive and preserved us until this day") or, if the object is acquired jointly by more than one person, the blessing <i>ha-tov ve-ha-metiv</i> ("who is good and bestows goodness").9<i class="footnote">Cf., however, <i>Ḥayyei Adam</i> 62:2, who rules that a man acquiring a family residence should recite <i>she-heḥeyanu</i> rather than <i>ha-tov ve-ha-metiv</i> even if title is held jointly with his wife because the husband is obligated to provide a domicile for his wife and children. This is also the opinion of R. Abraham Wolf Hamburg as published in R. Seligmann Ber Bamberger’s <i>Teshuvot Yad ha-Levi, Oraḥ Ḥayyim</i>, no. 38. Cf., however, <i>Bi’ur Halakhah</i> 223:3, s.v. <i>banah</i> and <i>Teshuvot Yad ha-Levi, loc. cit.</i>, who disagree with <i>Ḥayyei Adam</i> on the grounds that the husband may satisfy his obligation by leasing a home.</i> An interesting question pertaining to recitation of those blessings is discussed in one volume of a recently published series of collected responsa and halakhic essays.10<i class="footnote">It should be noted that <i>Kaf ha-Ḥayyim, Oraḥ Ḥayyim</i>, 2-3:17, citing <i>Ben Ish Ḥai</i> and <i>Teshuvot ha-Rashba</i>, I, no. 245, reports that it has become customary not to recite the blessing upon purchase of a house but that it is the practice to celebrate the purchase with a festival meal and to don a new garment on that occasion and pronounce a single <i>she-heḥeyanu</i> upon the house and the new garment. R. Joel Teitelbaum, <i>Divrei Yo’el, Bereishit</i>, p. 29, on the basis of quasi-kabbalistic reasons, opines that the <i>she-heḥeyanu</i> blessing should not be recited by ordinary mortals upon acquisition of a house or of new utensils.R. Elyakim Dworkes, <i>Bi-Shevilei ha-Halakhah</i>, II (Jerusalem, 5752), 43–45, cites anonymous authors who, basing themselves upon <i>Teshuvot Ḥatam Sofer, Yoreh De‘ah</i>, no. 138, rule that it is improper to recite <i>she-heḥeyanu</i> upon purchase of a house in the Diaspora and attribute that position to <i>Teshuvot ha-Rashba</i>, I, no. 245. Examination of <i>Teshuvot ha-Rashba</i> reveals that this was not at all Rashba’s position. Moreover, <i>Ḥatam Sofer</i> expresses reservations with regard to construction of buildings in the Diaspora when such construction is “of no necessity” (<i>le-lo ẓorekh</i>). There is nothing in <i>Ḥatam Sofer</i>’s comment to indicate that either construction or purchase of a needed dwelling is other than an occasion for joy and thanksgiving.</i> In the fifth volume of <i>Ẓohar</i> (Jerusalem, 5759), edited by R. Elyakim Dworkes, R. Yitzchak Zilberstein assembles earlier sources that address the problem of whether or not the appropriate blessing should be pronounced upon the purchase of real estate that is financed by a mortgage.
  The issue was first raised by R. Chaim Pelaggi in his <i>Teshuvot Lev Hayyim</i>, III, no. 52. <i>Lev Hayyim</i> observes that the blessing was ordained as an expression of joy experienced upon acquiring an object from which a person derives pleasure. <i>Lev Hayyim</i> notes that incurring debt in conjunction with a purchase substantially mars the pleasure of acquisition since the purchaser is in a state of unease because of his need to satisfy the debt. <i>Lev Hayyim</i>'s ruling is cited and endorsed by the author of the popular Sephardic compendium <i>Kaf ha-Hayyim</i> 223:10.
  R. Eliezer Waldenberg, <i>Ẓiz Eli'ezer</i>, XII, no. 19, takes issue with <i>Lev Hayyim</i>'s ruling. <i>Ẓiz Eli'ezer</i> concedes that a person experiences apprehension and even distress in incurring debt. The purchaser, however, experiences mixed emotions, <i>viz</i>., happiness at acquiring the property and distress at incurring the debt. Similarly, although common practice is to the contrary,11<i class="footnote">Cf., R. Chaim Eleazar Shapiro, <i>Nimukei Oraḥ Ḥayyim</i> 223:2, who reports that “We have never heard of an individual reciting <i>she-heḥeyanu</i> or <i>ha-tov ve-ha-metiv</i> upon succeeding to an estate.” He questions the propriety of the blessing when pronounced by an <i>onen</i> as recorded by <i>Shulḥan Arukh</i> since an <i>onen</i> is exempt from all blessings save <i>dayyan ha-emet</i>. Nevertheless, he states that the practice of not reciting the appropriate blessing arose from the fact that, contrary to the comment of <i>Magen Avraham, Oraḥ Ḥayyim</i> 223:3 and Mishnah Berurah 223:7, the <i>she-heḥeyanu</i> and <i>ha-tov ve-ha-metiv</i> blessings are discretionary rather than mandatory. Cf. <i>Bi’ur Halakhah</i> 219:4, s.v. <i>ve-ein zeh</i>, regarding the notion of “discretionary” in this context. See also R. Simchah Bunim Liberman, <i>Be-Shevilei Birkat ha-Gomel</i> (Jerusalem, 5758), chap. 1, sec. 22. See also, R. Sherira Ga’on, cited by <i>Tosafot, Sukkah</i> 46a, and a contradictory citation by <i>Tosafot, Menaḥot</i> 42b; <i>Teshuvot ha-Rashba</i>, I, no. 245, cited by <i>Bet Yosef, Oraḥ Ḥayyim</i> 223; Rema, <i>Oraḥ Ḥayyim</i> 223:1; Mishnah Berurah 225:9 and <i>Bi’ur Halakhah, loc. cit.</i>, as well as R. Naphtali Zevi Judah Berlin, <i>Ha‘amek She’elah, She’iltot de-Rav Aḥa’i Ga’on, She’ilta</i> 171:10. See also the comments of <i>Arukh ha-Shulḥan, Oraḥ Ḥayyim</i> 223:2 and 225:1. Hence, since the blessing appears to be both unseemly and emotionally contraindicated, recitation of the blessing on such occasions has lapsed.</i> as recorded in <i>Shulḥan Arukh, Oraḥ Hayyim</i> 223:2, a son who inherits his father's estate grieves at the loss of his father but is nevertheless required to pronounce the appropriate blessing occasioned by the inheritance that devolves upon him. The son experiences mixed emotions, and indeed would happily surrender his inheritance rather than experience the death of his father, but, for purposes of blessings, each emotion is recognized separately. Thus the son is required to pronounce two separate—and disparate—blessings: <i>dayyan ha-emet</i> (the true judge) in acceptance of the loss and grief occasioned by the death of his father and <i>she-heḥeyanu</i> in acknowledging the beneficence represented by the estate to which he has succeeded.
  R. Moshe Stern, the <i>Debreciner Rav, Teshuvot Be'er Mosheh</i>, V, no. 68, rebuts <i>Ẓiz Eli'ezer'</i>s argument by pointing out that death and inheritance are two entirely distinct matters, each of which gives rise to a different emotion. Although a person in such circumstances may simultaneously experience both profound sorrow and satisfaction, each of those reactions is prompted by a separate phenomenon. However, in purchasing real estate with a mortgage or a loan, it is but a single phenomenon, the acquisition of property, that gives rise to conflicting emotions. Thus, <i>Tosafot, Sukkah</i> 46a, rule that <i>she-heḥeyanu</i> is not recited at the time of circumcision because, although fulfillment of the <i>mizvah</i> gives rise to joy, the selfsame act also causes pain to the infant. Hence, concludes <i>Be'er Mosheh</i>, it cannot be said that the purchase of property encumbered by a mortgage gives rise to pleasure mandating a blessing. <i>Be'er Mosheh</i>, of course, accepts the premise, as did <i>Lev Hayyim</i>, that the <i>she-heḥeyanu</i> blessing pronounced upon acquisition of property reflects pleasure experienced in the acquisition. <i>Ẓiz Eli'ezer</i>, however, vigorously dismisses <i>Lev Hayyim'</i>s observation that "this blessing is ordained solely because of joy of the heart" and declares that the blessing "is not contingent upon joy but rather upon… benefit." Thus, for <i>Ẓiz Eli'ezer</i>, the fact that the joy of acquisition is vitiated by sadness or distress presents no problem whatsoever. According to <i>Ẓiz Eli'ezer</i>, the <i>she-heḥeyanu</i> blessing is an acknowledgment of an objective benefit and the attendant emotional state is irrelevant.
  R. Joseph Shalom Eliashiv is quoted as espousing an intermediate position. Rabbi Eliashiv notes that no purchase represents an unmitigated pleasure since expenditure of funds to finance the purchase perforce represents an unwelcome diminution of liquid resources. Nevertheless, on balance, the purchase brings pleasure. Assumption of a mortgage is unwelcome in the same sense that expenditure of funds is unwelcome. Indeed, it is unwelcome precisely for the sole reason that it constitutes incurrence of an obligation for future expenditure of funds. Expenditure of funds, either present or future, does not negate the pleasure experienced in the purchase. However, rules Rabbi Eliashiv, if the purchaser has reason to suspect that he will not be able to make mortgage payments in a timely manner, which in turn will lead to loss of the property upon resultant foreclosure, the blessing should not be recited. Under such circumstances, contends Rabbi Eliashiv, the stress and anxiety engendered by the prospect of possible loss of the property mitigates the pleasure to such an extent that the blessing is not warranted.
  Rabbi Eliashiv's reported ruling against recitation of the blessing in instances of fear of foreclosure appears to this writer to be somewhat problematic. On the basis of a discussion of the Gemara, <i>Berakhot</i> 54a, <i>Shulḥan Arukh, Oraḥ Hayyim</i> 224:4, rules that a person who finds abandoned property must recite the <i>she-heḥeyanu</i> blessing even in circumstances in which the monarch, should he hear of the incident, will seize the property. The fear of seizure of the property by the king seems to be no less cogent than the fear of foreclosure by the creditor that is described by Rabbi Eliashiv. As explained by Rabbenu Yonah in his comments on the Rif, <i>Berakhot</i> 54a, and by Rambam in his <i>Commentary on the Mishnah, loc. cit</i>., the underlying principle is that the joy at acquiring the abandoned property necessitates a blessing and that obligation is not nullified because of fear of some future reversal of the cause of joy or benefit.
  There is yet another consideration that should be noted. The <i>she-heḥeyanu</i> blessing is recited at the time of acquisition only in circumstances in which benefit from the object can be derived immediately. Thus, the blessing upon purchase of a garment requiring alterations is not recited at the time of acquisition but is delayed until the first time the garment is worn. Accordingly, R. Akiva Eger, Oraḥ Hayyim 223:3, questions whether the blessing should be recited at the time of purchase of a house or whether it should be delayed until the <i>mezuzot</i> have been affixed since the purchaser is not permitted to live in or otherwise make use of the property until the <i>mezuzot</i> have been attached to the doorposts of the house. R. Akiva Eger's comment is cited by <i>Mishnah Berurah, Sha'ar ha-Ẓiyun</i> 223:21. The effect of R. Akiva Eger's observation is that, even when no debt is incurred, the appropriate blessing should not be recited at the time of the closing and transfer of title but delayed until the <i>mezuzot</i> are affixed.
  Fish or Meat at a Brit Milah Repast?
  Performance of certain <i>mizvot</i>, including circumcision, is traditionally accompanied by a celebratory meal.12<i class="footnote">The covenants entered into between Isaac and Abimelech and between Jacob and Laban were accompanied by festive banquets designed to demonstrate and to promote a convivial relationship between the covenanting parties. See Genesis 26:31 and 31:54. R. Yitzchak Meir Schorr, <i>Koveẓ Bet Aharon ve-Yisra’el</i>, Nisan-Iyar 5761, p. 114f., suggests that circumcision is similarly accompanied by a celebratory repast because of its covenantal nature. It seems to this writer that each of the <i>miẓvot</i> requiring a celebratory repast is imbued with a covenantal aspect and that it is for that reason that precisely those <i>miẓvot</i> are accompanied by a festive meal.</i> <i>Hokhmat Adam</i> 149:24 emphasizes that the repast should be a meal in the halakhic sense of the term, i.e., that it must be served with bread as distinct from a collation consisting of coffee or whisky and pastries or the like. He adds that a person who can afford a proper repast but seeks to economize by offering his guests less than usual "does not act properly" and that R. Elijah of Vilna protested against such behavior.13<i class="footnote"><i>Shitah Mekubbeẓet, Beiẓah</i> 16a, cites Ritva in asserting that the sustenance ordained for an individual on <i>Rosh ha-Shanah</i> is exclusive of any expenses incurred in fulfilling a <i>miẓvah</i> just as it is exclusive of expenditures incurred in honoring the Sabbath and the festivals. See also R. Moshe Bunim Pirutinsky, <i>Sefer ha-Brit</i> 265:161.</i>
  <i>Hokhmat Adam</i> strongly decries the conduct of those who fail to serve a proper meal in conjunction with a circumcision but falls short of a condemnation for failure to fulfill a statutory obligation. Indeed, the halakhic origin and status of the meal offered guests upon the occasion of a circumcision is a matter of some controversy. As recorded in <i>Pirkei de-Rabbi Eli'ezer</i>, chapter 29, rabbinic interpretation of the phrase <i>"beyom higamel et Yizḥak"</i> in the verse "and Abraham made a great feast on the day Isaac was weaned" (Genesis 21:8) establishes that Abraham made a "great banquet" on the day of his circumcision of Isaac. Although this rabbinic comment does not unequivocally establish a normative obligation, <i>Sha'arei Teshuvah, Oraḥ Hayyim</i> 551:33, cites one authority who maintains that the repast is "a biblical <i>mizvah." Sefer Haredim</i>, chapter 40, section 3, records participation in a wedding banquet or a circumcision repast in his list of positive commandments derived "from the words of Holy Writ and from the words of the scholars." <i>Yam shel Shlomoh, Bava Kamma</i> 7:37, similarly writes that, in contradistinction to the celebratory meal accompanying the redemption of a first-born son, the circumcision repast constitutes a <i>mizvah</i> and is predicated upon the verse "I rejoice over your word like one who finds abundant spoils" (Psalms 119:162). On the other hand, <i>Teshuvot Bet Ya'akov</i>, no. 73, declares that the status of the repast is rabbinic in nature while <i>Bi'ur ha-Gra, Oraḥ Hayyim</i> 640:6, states that the repast "is not a biblical <i>mizvah</i> and there is no obligation of rejoicing."14<i class="footnote">See <i>Sefer ha-Brit</i> 265:159.</i> <i>Magen Avraham, Oraḥ Hayyim</i> 640:13, interprets <i>Teshuvot Maharik</i>, no. 178, as asserting that the meal represents "a mere custom."15<i class="footnote">For a conflicting interpretation of <i>Teshuvot Maharik</i> see <i>Eliyahu Rabbah</i> 640:19. See also R. Shimon Konitz, <i>Ot Brit</i> 165:14.</i> Elsewhere, Oraḥ Hayyim 546:5, Magen Avraham declares that a circumcision repast does not entail "rejoicing." However, <i>Mordekhai, Mo'ed Katan</i>, sec. 891, asserts that a mourner may not partake of a meal served in conjunction with a circumcision precisely because it involves rejoicing. That contention is based upon the interpretation by the Gemara, <i>Shabbat</i> 130a and <i>Megillah</i> 16b, of the verse "I rejoice in Your word as one who finds great spoil" (Psalms 119:162) as a reference to circumcision.
  At present, it has become the practice to serve the celebratory meal early in the day immediately following the circumcision. At that early hour many people find it difficult to eat a heavy meal and hence the repast often features fish rather than meat. The question of whether the circumcision meal must include meat or whether fish or dairy dishes may be served in satisfying the requirement is posed by R. Alexander Eliezer Knopfler in the Tammuz 5758 issue of <i>Or Yisra'el</i>, published by Machon Or Yisra'el located in Monsey, New York. Responses by R. Abraham David Horowitz of Strasburg, R. Yitzchak Ya'akov Neiman of Montreal, R. Joseph Lieberman of Jerusalem, R. Gavriel Zinner of Brooklyn and R. Yochanan ha-Levi Woszner of New Square appear in the same issue. A brief comment by R. Yitzchak Tessler of Monsey appears in the Tishri 5759 issue of the same journal. The topic is also addressed by R. Elyakim Dworkes, <i>Be-Shevilei ha-Halakhah</i>, II (Jerusalem, 5752) as well as in his <i>Be-Shevilei ha-Parashah</i> (Jerusalem, 5762), <i>Parashat Va-Yera</i>. However, apart from additional bibliographic sources and several interesting anecdotal tidbits, those responses add little to the earlier succinct but comprehensive treatment of this topic by R. Moshe Bunim Pirutinsky included in his encyclopedic work on the laws of circumcision, <i>Sefer ha-Brit</i> (New York, 5733), 265:162. Many of the considerations and sources also pertain to the proper mode of satisfying the requirement of serving a festive meal in conjunction with fulfillment of other <i>mizvot</i>, particularly with the celebratory meals served during the post-nuptial week.
  The question has its roots in the issue of whether or not there exists a requirement for eating meat in conjunction with the <i>Yom Tov</i> meal.16<i class="footnote">That question is more fully discussed in this writer’s <i>Contemporary Halakhic Problems</i>, III (New York, 1989), 246–256. Cf. also R. Moshe Sternbuch, <i>Mo‘adim u-Zemanim</i>, VIII, no. 111.</i> As recorded by the Gemara, <i>Pesaḥim</i> 109a, during the period in which sacrifices were offered, the commandment to "rejoice before the Lord your God" (Deuteronomy 27:7) was fulfilled by males in partaking of the meat of peace-offerings to which reference is made in that verse. <i>Tosafot, Yoma</i> 3a, and Rabbenu Nissim, <i>Sukkah</i> 42b, maintain that, even during the days of the Temple, eating meat on <i>Yom Tov</i> was not an absolute requirement; rather, as characterized by Rabbenu Nissim, eating meat was merely the optimal mode of fulfilling the obligation. Citing a further statement of the Gemara, <i>Pesaḥim</i> 109a, Ritva, <i>Kiddushin</i> 3b, and <i>Teshuvot Rashbash</i>, no. 176, rule that, following the destruction of the Temple, "there is no rejoicing other than with wine."17<i class="footnote">Rif, <i>Pesaḥim</i> 109a, and Rosh, <i>Pesaḥim</i> 10:22, fail to mention a need for partaking of meat and record only the statement found in <i>Pesaḥim</i> 109a with regard to wine. <i>Magen Avraham, Oraḥ Ḥayyim</i> 249:6, cites the opinion of <i>Levush</i> to the effect that, subsequent to the destruction of the Temple, meat is not required. Similarly, in a comment included in the glosses of <i>Ḥatam Sofer</i> to <i>Shulḥan Arukh, Magen Avraham, Oraḥ Ḥayyim</i> 249:6, R. Abraham Samuel Benjamin Sofer rules that meat is not a necessary condition of “rejoicing” subsequent to the destruction of the Temple. This also appears to be the view of <i>Sha’agat Aryeh</i>, no. 65.</i> On the other hand, Rambam, <i>Sefer ha-Mizvot, mizvot aseh</i>, no. 54 and <i>Mishneh Torah, Hilkhot Yom Tov</i> 6:18, followed by <i>Tur Shulḥan Arukh, Oraḥ Hayyim</i> 529, regards the eating of meat on <i>Yom Tov</i> as mandatory even in our day.18<i class="footnote">Rambam, <i>Hilkhot Megillah</i> 2:15, similarly rules that the obligation with regard to the Purim repast can be fulfilled only with meat.</i> Among latter-day authorities, <i>Magen Avraham, Oraḥ Hayyim</i> 696:15, states that, subsequent to the destruction of the Temple, there is no obligation to eat meat on festivals.19<i class="footnote">See also <i>Bet Yosef, Oraḥ Ḥayyim</i> 529. Mishnah Berurah 529:2, <i>Bi’ur Halakhah</i>, s.v., <i>keiẓad</i>, states that the eating of meat on <i>Yom Tov</i> in our day is not mandatory but that it nevertheless constitutes fulfillment of a <i>miẓvah</i>.</i> That statement is, however, contradicted by two other comments of the same authority, <i>Magen Avraham, Oraḥ Hayyim</i> 249:6 and Oraḥ Hayyim 529:3, in which he affirms the existence of such an obligation even in our day.20<i class="footnote">For an attempt to resolve that contradiction see <i>Darkei Teshuvah, Yoreh De‘ah</i> 89:19 and R. Chaim Eleazar Shapiro, <i>Nimukei Oraḥ Ḥayyim</i> 529:2. See also R. Jacob Ettlinger, <i>Arukh la-Ner, Sukkah</i> 42b; <i>Darkei Teshuvah</i> 89:19; and R. Ovadiah Yosef, <i>Yeḥaveh Da‘at</i>, VI, no. 33.</i>
  <i>Yam shel Shlomoh, Beizah</i> 2:5, develops the thesis that every joyous repast requires meat but that, subsequent to the destruction of the Temple, there is an additional requirement to drink wine in order to dispel melancholy. <i>Magen Avraham, Oraḥ Hayyim</i> 249:6, cites Maharam of Lublin who maintains that the "<i>mizvah</i> of rejoicing [on the occasion] of a circumcision cannot be fulfilled with dairy dishes."21<i class="footnote">Cf., however, Magen Avraham 151:5, who, in a different context, remarks that the requirement of a <i>se‘udat miẓvah</i> can be fulfilled with “bread and legumes.”</i> R. Jacob Emden, <i>Migdal Oz, naḥal</i> 9, sec. 17:3, declares that both meat and wine must be served at a <i>se'udat mizvah</i>.22<i class="footnote"><i>Tosafot Ḥadashim, Sanhedrin</i> 8:2, also indicate that a <i>se‘udat miẓvah</i> requires both meat and wine.</i> <i>Migdal Oz</i> comments that a banquet is termed a <i>"mishteh,"</i> as in Genesis 21:8, because of the drink that is served. He assumes that the noun <i>"mishteh"</i> is derived from the verb <i>"shatoh,"</i> meaning "to drink." <i>Migdal Oz</i> finds an allusion to partaking of meat in particular at a circumcision repast in Psalms 50:5 which he renders as "those who enter into a covenant with Me by slaughter."
  <i>Torat Hayyim, Oraḥ Hayyim</i> 551:26, draws attention to the ruling of Rema, Oraḥ Hayyim 551:10, to the effect that during the week in which the ninth of Av occurs no more than ten persons are permitted to eat meat or drink wine on the occasion of a <i>se'udat mizvah. Torat Hayyim</i> argues that, were it possible to satisfy the requirements of a <i>se'udat mizvah</i> in some other fashion, it would not be necessary to modify the restriction against eating meat during the period of mourning even to the extent of permitting a bare quorum of ten to partake of meat. The clear implication is that Rema regards the eating of meat as intrinsic to the nature of a <i>se'udat mizvah</i>.
  The compiler of <i>Zemirot Divrei Yo'el</i> (New York, 5750), <i>Brit Milah</i>, sec. 205, reports that the late <i>Satmarer Rebbe</i>, Rabbi Joel Teitelbaum, was once present at a <i>brit</i> at which dairy food was served. In answer to the <i>Satmarer Rebbe'</i>s query with regard to the lack of meat the father informed him that he could not afford the additional expense of a meat meal. The <i>Satmarer Rebbe</i> is reported to have responded that, had he been aware of the need, he would himself have provided sufficient funds for "a complete meal of fish and meat."23<i class="footnote">See also R. Meir Arak, <i>Minḥat Pittim, Yoreh De‘ah</i> 265:12, and R. Abraham Pietrovsky, <i>Piskei Teshuvah</i>, no. 194, who rule that meat of an animal must be served at a circumcision repast.</i>
  R. Shimon Konitz, <i>Ot Brit</i> 265:14, indicates that the practice of serving dairy dishes in conjunction with a circumcision developed on the basis of reliance upon the position of Rif and Rosh24<i class="footnote">See <i>supra</i>, note 17.</i> who maintain that, subsequent to the destruction of the Temple, meat is not integral to the obligation of rejoicing. <i>Ot Brit</i>, however, does insist that the drinking of wine is obligatory on such occasions. This is also the position of R. Abraham Anshel Grunwald, <i>Zokher ha-Brit</i> 25:9.
  The Gemara, <i>Ta'anit</i> 30a, declares that salted meat may be eaten on the day preceding the ninth of Av on the grounds that partaking of preserved meat does not give rise to "rejoicing." It would then follow that, for purposes of a <i>se'udat mizvah</i>, delicatessen is no more appropriate than are dairy dishes. However, <i>Tosafot, ad locum</i>, declare that "in our times," since we are accustomed to eat meat that has been preserved for a lengthy period of time, such meat is prohibited in the period preceding the ninth of Av. Accordingly, notes Rabbi Pirutinsky, "perhaps" such meat may appropriately be served at a <i>brit</i> or other <i>se'udat mizvah</i>.25<i class="footnote">It should be noted that <i>Magen Avraham, Oraḥ Ḥayyim</i> 552:2, rules that eating fish also causes rejoicing and hence rules that fish may not be eaten on the day preceding the ninth of Av. Accepting the point made by Rabbi Pirutinsky, it would then follow that fish may satisfy the requirement for “rejoicing” in conjunction with a <i>se‘udat miẓvah</i>. See also R. Samuel ha-Levi Woszner, <i>Teshuvot Shevet ha-Levi</i>, III, no. 18, sec. 2.</i>
  The Gemara, <i>Haggigah</i> 8a, declares that the meat of fowl may not be used to satisfy the requirement of the <i>Yom Tov</i> repast. Two separate opinions are adduced by the Gemara in support of that exclusion. The first is based upon rabbinic exegesis establishing that only meat of a species from which the festival sacrifice may be brought can be used to satisfy the obligation of rejoicing. The second opinion, recorded in the name of Rav Ashi, declares simply that there is no "rejoicing" in the consumption of the meat of fowl.26<i class="footnote">See R. Judah Nagar, <i>Mo‘adei ha-Shem</i>, p. 132b, who rules that for this reason the obligation with regard to the Purim repast cannot be fulfilled by eating fowl. As declared in the Book of Esther 9:22, Purim is a day of “feasting and joy.” <i>Ḥatam Sofer</i>, <i>Ḥullin</i> 83a and Ḥoshen Mishpat 199:3; <i>Teshuvot Bet Ya‘akov</i>, no. 73; and <i>Teshuvot Dvar Mosheh</i>, no. 47 rule that the Purim obligation can be fulfilled only by eating meat. See also <i>Nimukei Oraḥ Ḥayyim</i> 695: 2. This requirement seems to be explicitly stated by Rambam, <i>Hilkhot Megillah</i> 4:15. See R. Moshe Sternbuch, <i>Mo‘adim u-Zemanim</i>, II, no. 190. Cf., <i>Magen Avraham, Oraḥ Ḥayyim</i> 696:15. See also R. Meir Brandsdorfer, <i>Kneh Bosem</i>, no. 102, regarding eating meat on Purim by a woman prior to her immersion in a <i>mikveh</i> on the evening following Purim. According to Rabbi Pirutansky’s thesis whether or not the meat of fowl can be utilized in fulfilling the obligation of rejoicing on Purim is dependent upon which of the two opinions expressed in <i>Ḥaggigah</i> 8a is regarded as normative. Cf., however, <i>Mo‘adim u-Zemanim</i>, VII, no. 112, who asserts that partaking of chicken satisfies the obligation of “rejoicing” at a wedding repast.</i> Rabbi Pirutinsky insightfully notes that, according to the first opinion, there is no reason to assume that partaking of fowl does not engender happiness and rejoicing; fowl are excluded from use in fulfilling the <i>Yom Tov</i> obligation for an entirely different reason having no bearing upon utilization of fowl in conjunction with a <i>se'udat mizvah.</i>27<i class="footnote">This analysis was actually advanced earlier by <i>Brit Avot</i> 265:14.</i> However, according to the second opinion, fowl do not serve to generate happiness or rejoicing28<i class="footnote">The second opinion to the effect that fowl do not engender rejoicing is apparently accepted as normative by <i>Mordekhai, Ta‘anit</i>, sec. 639. This is also the view of <i>Ḥavvot Ya’ir</i>, no. 178.</i> and hence are no different from dairy dishes insofar as a <i>se'udat mizvah</i> is concerned.29<i class="footnote">A strange and questionable anecdote is reported by Rabbi Gavriel Zinner in his contribution to <i>Or Yisra’el</i>. Rabbi Zinner reports that each of the children of a certain person died in infancy. Upon being informed of the tragic situation, the <i>Belzer Rebbe</i> is reported to have asked the father if he had served “meat of an animal” at the <i>brit</i> of his children. Rabbi Zinner provides no substantiation for the inferred causal connection. In a rather different vein, Rabbi Yochanan Woszner cites anonymous sources to the effect that offering meat at a <i>brit</i> serves to assure that the child will develop properly in the study of Torah and in divine service. In a footnote to <i>Zemirot Divrei Yo’el</i>, <i>Brit Milah</i>, sec. 205, the editor similarly reports that the <i>Apter Rav</i> is known to have declared that serving a dairy meal in conjunction with a circumcision will jeopardize the child’s ability to become proficient in Torah study. The original source of the latter anecdote seems to be R. Shlomoh Aharon Auerbach, <i>Taharat ha-Nefesh</i> (Czemowitz, 5633), 60:123 from which it appears that the <i>Apter Rav</i>’s comment was uttered in a jocular vein. See R. Shabbetai Lipshitz, <i>Brit Avot</i> (Munkacs, 5658), chap. 13, sec. 1.</i>
  These various sources notwithstanding, serving meat at a <i>brit</i> was far from a universal practice even in previous generations. R. Moshe Sofer, <i>Teshuvot Hatam Sofer, Oraḥ Hayyim</i>, no. 69, was consulted with regard to the propriety of serving dairy dishes at a <i>brit milah</i> performed on the Sabbath. The inquiry was prompted by an interesting set of circumstances. The community in which the <i>brit</i> was to be performed regularly conducted the morning service at an early hour in order to complete the service before expiration of the period in which the <i>shema</i> must be recited. They then assembled again later in the morning for the <i>musaf</i> service. The issue was whether or not it was appropriate to partake of a meal prior to recitation of the <i>musaf</i> service. The interlocutors preferred to serve the <i>se'udat mizvah</i> at an early hour because they would be expected to present "fish and meat" at a meal served on <i>Shabbat</i> at a later hour and they did not wish to incur that expense. <i>Hatam Sofer</i> permitted the practice precisely because only dairy food was to be served, <i>Hatam Sofer</i> ruled that a meal featuring only dairy dishes does not constitute the type of meal prohibited before <i>musaf</i> even when those foods are accompanied by bread.30<i class="footnote">Cf., the general rule recorded in <i>Shulḥan Arukh, Oraḥ Ḥayyim</i> 286:3, to the effect that the maximum quantity of bread that may be eaten prior to <i>musaf</i> is no more than the equivalent of the size of an egg. See also R. Jacob Tannenbaum, <i>Teshuvot Naharei Afarsemon, Oraḥ Ḥayyim</i>, no. 29 as well as <i>Likkutei He‘arot al Sifrei Teshuvot Ḥatam Sofer, Oraḥ Ḥayyim</i> 69:3.</i> He also stipulated that wine not be served. It is thus evident that <i>Hatam Sofer</i> did not regard either meat or wine as <i>de rigeur</i> at a <i>se'udat mizvah</i>.
  There are also reports in a number of sources, including <i>Brit Avot</i> in the name of <i>Erez ha-Hayyim, Yoreh De'ah</i>, p. 95, as well as <i>Zokher ha-Brit, Hilkhot Milah</i> 25:7, indicating that R. Nissim Azulai, author of <i>Shulḥan ha-Tahor al Taryag Mizvot</i>, promulgated a formal edict in Safed forbidding the presentation of foods other than fish at the repast served in conjunction with a <i>brit</i>. His stated reason was a desire to prevent embarrassment of those who could not afford more expensive dishes.
  These authorities may have relied upon the position of the decisors who maintain that, in our day, meat is not a <i>sine qua non</i> of "rejoicing." However, it is unlikely that this was the rationale underlying <i>Hatam Sofer</i>'s ruling since he also dispenses with the requirement regarding the drinking of wine. Alternatively, it may be the case that these authorities maintained that "rejoicing" is not a concomitant of the repast accompanying a circumcision. <i>Hatam Sofer</i>'s disciple, R. Moshe Schick, <i>Teshuvot Maharam Shik, Yoreh De'ah</i>, no. 366, citing <i>Magen Avraham, Oraḥ Hayyim</i> 546:5, adduces the latter consideration as an <i>apologia</i> (<i>limmud zekhut</i>) for those who serve dairy dishes rather than meat on such occasions.
  As noted earlier, the practice of serving a festive meal in conjunction with a <i>brit</i> is derived from the verse "And Abraham made a great feast on the day that Isaac was weaned" (Genesis 21:8). <i>Pirkei de-Rabbi Eli'ezer</i> understands the Hebrew <i>"higamel"</i> (literally: he was weaned) as a combination of the letters <i>"heh"</i> (having the numerical equivalent of five) and <i>"gimmel"</i> (having the numerical equivalent of three) and the word <i>"mal"</i> (meaning "he circumcised") which renders the entire verse as "And Abraham made a great feast on the day <i>'heh gimmel'</i> (having the numerical equivalent of eight) on which he circumcised Isaac." That comment is cited by <i>Tosafot, Shabbat</i> 130a, s.v. <i>sas anokhi</i>. Similar statements regarding a festive meal in conjunction with a <i>brit</i> are found in <i>Midrash Tehillim</i>, no. 112, and <i>Yalkut Shim'oni, Parashat Lekh Lekha</i>, no. 81. Indeed, the Gemara, <i>Ketubot</i> 8a, declares that inclusion of the phrase "Let us praise our God in whose habitation there is joy" in conjunction with recitation of Grace after Meals would have been required on such occasions if not for the fact that the circumcised child experiences pain.31<i class="footnote">See also additional sources cited by <i>Sefer ha-Brit</i> 265:158.</i>
  Although the point is not made explicitly in earlier sources, it seems to this writer that, unlike the requirement of "rejoicing" on <i>Yom Tov</i>, which is obligatory, the festive repast accompanying fulfillment of <i>mizvot</i> such as circumcision and redemption of the first-born constitute a <i>"mizvah kiyyumit"</i> rather than a <i>"mizvah ḥiyyuvit,"</i> i.e., one who participates in such a repast fulfills a <i>mizvah</i> but nevertheless the repast is not mandatory in nature.32<i class="footnote">Cf., however, <i>Zokher ha-Brit</i> 25:8, who censures those who omit the repast and criticizes their lack of ideological commitment.</i> This thesis is formulated by <i>Shulḥan Gevoha, Yoreh De'ah</i> 265:12, and accounts for the terminology employed by Shulḥan Arukh, Yoreh De'ah 265:12, in declaring, "It is customary to serve a meal on the day of the circumcision" as well as for the willingness of the authorities cited earlier in this discussion to rely upon permissive views with regard to the requirements for the repast.
  Burial of a Non-Jew in a Jewish Cemetery
  The influx of Russian immigrants to the State of Israel during recent years has given rise to a spate of heretofore rare halakhic problems. It is now conceded even by Israeli government officials that a significant proportion of those immigrants are not Jews and have no credible claim to be recognized as Jews. It is also beyond dispute that those immigrants are loyal citizens of the State of Israel, that they wish to identify themselves with the Jewish people and that many of them have served with distinction in the Israeli armed forces. Some have perished in the course of fulfilling military duties or as a result of terrorist activity. There have been reports of a number of instances in which family members have quite understandably sought to have such an individual buried in a Jewish cemetery, only to be rebuffed on the grounds that the departed relative was not a Jew. In one well-publicized case, the deceased was denied burial in a Jewish cemetery because he was not a Jew and denied burial in a Russian Orthodox cemetery because he was not a Christian.
  This vexing problem becomes even more exacerbated when the deceased is a soldier killed in the course of military duty and the family seeks burial in a military cemetery. The argument that a person who sacrifices his life for the security of the State of Israel deserves to be buried in one of the military cemeteries strikes a resonant emotional chord. The halakhic aspects of that dilemma are surveyed by Rabbi Abraham Avidan, a former Rosh Yeshivah of Yeshivat Sha'alvim who presently serves as assistant to the Chief Chaplain of the Israeli Armed Forces. That discussion is presented in a contribution to the first volume of <i>Oz</i> (Sha'alvim, 5754), a publication devoted to halakhic issues pertaining to the "armed forces, society, and security."
  The Gemara, <i>Gittin</i> 61a, posits an obligation, at least under some conditions, to support the gentile poor, to assist the gentile sick and to inter the gentile dead in order to foster amicable and neighborly relations. That obligation does not, however, entail burial in a Jewish cemetery. Indeed, Rashi, in his commentary <i>ad locum</i>, emphasizes that the Gemara does not refer to burial in a Jewish cemetery. Ruth, in declaring her desire to join Naomi as a member of the Jewish faith declares, "… where you shall die, I shall die, and there will I be buried" (Ruth 1:17). This statement reflects Ruth's awareness that burial in Jewish cemeteries is reserved to Jews.33<i class="footnote">R. Shlomoh Kluger, <i>Teshuvot Tuv Ta‘am va-Da‘at, Mahadura Telitai’i</i>, II, no. 253, adds that, in declaring “if aught but death shall part you and me” (Ruth 1:17), Ruth was referring to her status should she not convert, i.e., that she would remain with Naomi in any event but, were she not to convert, they would be separated in death since a Jew and a gentile cannot be buried together.</i>
  The prohibition against burial of a non-Jew in a Jewish cemetery is based upon a more general prohibition against burial of individuals of disparate degrees of religiosity in close proximity one to another.34<i class="footnote">For a discussion of exhumation of a Jew buried in a non-Jewish cemetery, see R. Judah Asad, <i>Teshuvot Yehudah Ya‘aleh, Yoreh De‘ah</i>, no. 358, and R. Yechiel Ya’akov Weinberg, <i>Seridei Esh</i>, III, no. 101. See also <i>Teshuvot Ḥatam Sofer, Yoreh De‘ah</i>, no. 341, s.v. <i>ibra</i>, who rules, that a wicked person who has been buried next to a righteous individual should not be disinterred since his transgressions may have been expiated. The inference to be drawn from that discussion is that a Jew buried in a non-Jewish cemetery should be exhumed.</i> Thus, Shulḥan Arukh, Yoreh De'ah 362:5, rules that, not only is it prohibited to bury a wicked person next to a righteous individual, but it is also forbidden to inter a merely "righteous" individual next to a person of "extraordinary piety." <i>Teshuvot Hatam Sofer, Yoreh De'ah</i>, no. 341, cites Rashi, <i>Sanhedrin</i> 46a, in establishing that this stricture has the status of a biblical commandment in the nature of a <i>halakhah le-Mosheh mi-Sinai</i>, a law transmitted orally to Moses at Sinai.
  Rabbi Abraham I. Kook, <i>Da'at Kohen</i>, no. 201, explains that it is not proper to bury non-Jews in a Jewish cemetery for two reasons: 1) Individuals of disparate spiritual attainments, e.g., a righteous person and a wicked individual, may not be buried together. 2) <i>Shiltei ha-Gibborim</i>, in his commentary on the sixth chapter of <i>Sanhedrin</i>, asserts that cemeteries are imbued with the sanctity of synagogues and hence may be used solely for their designated purpose, <i>viz</i>., burial of Jewish bodies.35<i class="footnote">Cf., however, R. Malkiel Zevi Tennenbaum, <i>Teshuvot Divrei Malki’el</i>, II, no. 67, sec. 16, and R. Yechiel Michal Tucatzinsky, <i>Gesher ha-Ḥayyim</i> (Jerusalem 5720), II, chap. 4, sec. 2.</i> No other benefit may be derived from consecrated ground.36<i class="footnote">R. Abraham I. Kook, <i>Da‘at Kohen</i>, no. 201, asserts that subsequent to interment of the first body the entire area designated as a burial ground can be used for no other purpose.</i> There is, however, considerable controversy with regard to whether the sanctity of a synagogue is biblical or rabbinic in nature.37<i class="footnote">See <i>Sedei Ḥemed, Kellalim, Ma‘arekhet Bet</i>, sec. 43 and <i>Encyclopedia Talmudit</i>, III, 194.</i> If the latter is the case, it follows that the second prohibition against interring a non-Jew in a Jewish cemetery is rabbinic rather than biblical.
  The distinction in the severity of these two prohibitions opens the door to a possible amelioration of the problem earlier described. <i>Baḥ, Yoreh De'ah</i> 151, s.v. <i>asur</i>, remarks that "Although there is no doubt that a gentile may not be buried next to a Jew, nevertheless, if gentiles are found murdered together with a Jew, they may be buried in a Jewish burial ground together with the dead of Israel in a single courtyard because of the paths of peace (<i>darkei shalom</i>)." R. David Zevi Hoffmann, <i>Teshuvot Melammed le-Ho'il, Yoreh De'ah</i>, no. 129, draws the obvious implication from the words of <i>Baḥ</i>, namely, that a Jew or a non-Jew may not be buried side by side but that, at least in the circumstances described by <i>Baḥ</i>, they may be buried in the same general area.
  The problem that remains is two-fold in nature: 1) Why is it ordinarily not permissible to bury a Jew with a non-Jew in a common courtyard? 2) If such interment is ordinarily forbidden, why is the prohibition suspended for purposes of promoting good relations?
  Rabbi Avidan explains that the matter is readily understood on the basis of the two separate prohibitions posited by Rabbi Kook. The biblical prohibition is limited to burial of a Jew and a gentile in close proximity to one another. That prohibition is not suspended even to promote the "paths of peace." Burial in the same courtyard, i.e. in the same cemetery, but at some distance from one another, is prohibited by virtue of the fact that the cemetery is consecrated ground. That prohibition, however, declares <i>Da'at Kohen</i>, is rabbinic in nature and is suspended in the interests of <i>darkei shalom</i>. This explanation is, of course, predicated on the assumption that <i>Baḥ</i> maintains that the sanctity associated with cermetery grounds is rabbinic in nature.
  <i>Gilyon Maharsha, Yoreh De'ah</i> 345:4, rules that the distance separating the grave of a righteous person from the grave of a wicked individual must be eight ells. However, Rabbi Shlomoh Kluger, <i>Teshuvot Tuv Ta'am va-Da'at, Mahadura Telitai'i</i>, II, no. 253, requires that a fence be erected to separate the graves. In support of that position, <i>Tuv Ta'am va-Da'at</i> observes that the Gemara, <i>Sanhedrin</i> 47a, reports that separate cemeteries were established for different categories of persons executed for capital trespasses. Apparently, then, mere separation does not suffice to separate a person guilty of a more serious misdeed from one guilty of a less serious infraction; rather, the separation must be in the form of a physical barrier. <i>Tuv Ta'am va-Da'at</i> also cites the verse "and the curtain shall separate unto you between the holy and the holy of holies" (Exodus 27:33) as indicating that, when "separation" is required, mere physical separation is not sufficient but that the separation must be in the form of a physical barrier. Accordingly, if a physical barrier is required between the "holy" and the "holy of holies," <i>a fortiori</i>, a physical barrier must be required in separating the wicked from the righteous. <i>Da'at Kohen</i> similarly requires that a fence be erected between Jewish graves and non-Jewish graves. <i>Da'at Kohen</i>, however, advances a far more prosaic reason for erection of a fence, <i>viz</i>., in the absence of a fence clearly demarcating the non-Jewish section, it is possible that, with the passage of time, a non-Jew will be buried within the prohibited distance of eight ells from a Jewish grave.
  On the basis of the ruling of <i>Baḥ</i>, there are grounds for permitting non-Jews to be buried within the confines of Jewish cemeteries despite the fact that the entire cemetery, including areas in which no body has yet been buried, is consecrated ground. However, since the entire cemetery is consecrated ground such interment may be permitted only when necessary to avoid enmity or ill-feeling. In light of the rulings of <i>Tuv Ta'am va-Da'at</i> and <i>Da'at Kohen</i>, the non-Jewish graves should be distanced eight ells from the area of Jewish graves and should be separated from Jewish graves by a fence ten cubits in height.
  However, as <i>Da'at Kohen</i> himself states, the optimum solution would be, at the time of consecration of any new cemetery, to designate an area to be used for the burial of non-Jews and to surround that area with a fence.38<i class="footnote">American rabbis would be well advised to follow the same procedure in the consecration of new cemeteries by their synagogues. From time to time, rabbis are confronted with requests for the interment of individuals who have converted to Judaism under non-Orthodox auspices. Since such conversions are invalid, those persons may not be buried in a Jewish cemetery. Proper designation of a separate and separated section would enable the rabbi to offer an acceptable alternative.</i> Since the non-Jewish area is <i>ab initio</i> not consecrated for Jewish burial, it will never be endowed with the sanctity of a synagogue and hence, with proper separation, non-Jews may be interred in such an area without qualm.