Discussion: When the Jewish people conquered Midyan, they were commanded to purify the utensils they acquired. The Torah states: “Everything that comes into fire you shall pass through fire, and it shall be purified; however, it must also be purified with the waters of purification…”[1]. From this verse, Chazal [2] derives two forms of purification: libun (fire) and hag‘alah (water). The Gemara further derives from the verse an additional obligation: immersion in a mikvah, known as tevilas keilim.
The Gemara [3] explains that tevilas keilim is required because utensils that were in the possession of a non-Jew acquired a certain “impurity,” which must be removed when they enter Jewish ownership. This impurity is not ritual tum’ah in the technical sense, but rather a transition from a mundane, non-Jewish status to a sanctified Jewish status.
The Gemara [4] explains that this obligation applies specifically to utensils purchased from a non-Jew. If the utensils were merely borrowed, immersion is not required. The reason is that the Torah’s command is modeled after the events in Midyan, where the Jews acquired full ownership of the utensils. Thus, only when a Jew gains ownership from a non-Jew does the obligation of tevilah arise.
This raises a conceptual question: Must we compare the case of Midyan in all respects?
In Midyan, the utensils were originally manufactured and owned by non-Jews. Perhaps, then, the spiritual blemish arises only when utensils were initially produced or first handled by non-Jews. If so, utensils manufactured by Jews should not require tevilah, even if later sold to a non-Jew and repurchased.
Tosafos [5] differentiates between two different cases. If a Jew gives his utensils to a non-Jewish craftsman for repair, they do not require tevilah afterward, since the non-Jew never acquired true ownership. However, if the Jew actually sold the utensils to a non-Jew and later repurchased them, tevilah is required, because the non-Jew had full ownership.
The Shulchan Aruch [6] rules (in accordance with Tosafos) that if a Jew sold his utensils to a non-Jew and later repurchased them, they require tevilas keilim. This indicates that the obligation is not dependent on who originally manufactured the utensil, but rather on whether it entered non-Jewish ownership. Thus, even if the utensil was originally made or owned by a Jew, any period of non-Jewish ownership suffices to generate the obligation of tevilah.
However, some [7] argue and interpret the ruling of the Shulchan Aruch more narrowly. According to this view, the Shulchan Aruch obligates tevilas keilim only in a case where the vessel was originally manufactured by a non-Jew and then purchased by a Jew, who subsequently sold it back to a non-Jew. In such a scenario, when the Jew later repurchases the utensil, tevilah is required, because this parallels the case of Midyan, where the vessels were both produced and owned by non-Jews before entering Jewish possession.
According to this approach, the decisive factor is not merely that the vessel passed through non-Jewish ownership, but that it was originally manufactured under non-Jewish control. Consequently, if a vessel was manufactured and originally owned by a Jew, then even if it was later sold to a non-Jewish retailer, a Jew who purchases it from that retailer might not be obligated in tevilas keilim, since the case no longer resembles the situation of Midyan.
Nevertheless, the vast majority of poskim [8] rule that in all cases the obligation of tevilas keilim applies. Thus, even if the vessel was originally manufactured and owned by a Jew, but was later sold to a non-Jewish retailer, a Jew who subsequently purchases the utensil from that retailer is obligated in tevilah, even with a berachah.
This ruling has significant practical implications. Ordinarily, utensils manufactured and owned by a Jewish company would not require tevilas keilim, since they never entered non-Jewish ownership. [9] However, if those same utensils are sold by non-Jews who acquired them from the Jewish manufacturer, then the transfer of ownership to a non-Jew creates an obligation of tevilas keilim when a Jew later purchases them.
One of the important halachic ramifications of this discussion arises in the context of the sale of chametz before Pesach [10]. In addition to selling actual chametz, some individuals include their utensils in the sale to the non-Jew. (Strictly speaking, there is no halachic requirement to sell utensils, since chametz absorbed in a vessel does not constitute prohibited ownership on Pesach [11] ). Nevertheless, if one were to sell his utensils, a question arises: since the utensils were owned by a non-Jew during Pesach, would a Jew who repurchases them afterward be obligated in tevilas keilim, possibly even with a berachah?
Because of this concern, authorities [12] insisted that it be explicitly stated in the shtar mechirah that the utensils are not being sold. Others maintain that even if one did sell the utensils to a non-Jew, there is a dispute among the poskim as to whether they must be immersed again [13].
The Rebbe explains [14] that, according to the Alter Rebbe, there is in fact no obligation to immerse utensils that were sold to a non-Jew for Pesach and repurchased afterward. The underlying reason is that the entire requirement of tevilas keilim is rooted in the need to remove the spiritual blemish that arises when utensils are in the possession of a non-Jew. However, the crucial point, as the Rebbe clarifies, is that this blemish exists only when the non-Jew has actual access to and control over the utensils, such that he could realistically use them for non-kosher purposes.
In the case of the sale of utensils before Pesach, although the non-Jew acquires legal ownership, he does not gain practical possession or access to the utensils, since they remain physically in the Jew’s home and under Jewish control. Thus, while there is a formal transfer of ownership (ba’alus), there is no meaningful transfer of possession (chazakah or reshus tashmish). Since the rationale of tevilas keilim is tied not merely to ownership but to the non-Jew’s ability to use the utensils, the spiritual blemish never arises in such a case, and therefore, there is no obligation to immerse the utensils after Pesach.
What emerges from this analysis is that the obligation of tevilas keilim depends not only on ownership but also on actual possession and practical ability of use. This distinction has broader halachic ramifications, particularly in cases where a non-Jew owns a store but the utensils are not physically in his domain or under his control. The question then arises whether mere ownership without practical possession suffices to generate an obligation of tevilas keilim, a question that lies at the heart of this entire discussion.
L’Halachah: Utensils manufactured by a Jewish company but sold in a store owned by non-Jews require tevilas keilim. According to the majority of poskim, the immersion should be performed with a berachah, although some authorities maintain that the berachah should be omitted due to doubt.
[1] במדבר לא:כב
[2] ע"ז ע"ה: במשנה וגמרא
[3] ירושלמי ע"ז הט"ו
[4] ע”ז שם
[5] שם ד”ה דאי
[6] יו"ד סי' ק"כ סעי' י"א
[7] עי' שו"ת אגרות משה יו"ד ח"ג סי' כ"א
[8] עי' ס' טבילת כלים פ"ג:ב ודרכי תשובה סי' ק"כ סקפ"א
[9] שם
[10] עיין שד”ח אס”ד מערכת חו”מ סימן ט’ אות כז, ודרכ”ת שם סק”צ
[11] עיין שוע”ר סימן תנא:א, תמז:ג
[12] שו”ת שיבת ציון סי”א ושו”ת חת”ם או”ח סי’ קט
[13] עיין פסקים ותשובות סימן קכ אות מב
[14] לקוטי שיחות חלק חי עמ’ 363 ואילך
Discussion:
From the Gemaros cited last week, the halacha is that any sale which includes, at the time of sale (prior to the transaction taking effect), a condition whereby either the buyer or the seller retains the right to undo the sale, is considered an incomplete sale. As long as the sale is incomplete, it is forbidden for the buyer to use the item, since the money given to the seller is treated as a loan, and the buyer’s use of the item constitutes benefit from that loan, raising a concern of ribbis .
Accordingly, a return policy should render every sale a conditional sale. If so, when the store is Jewish-owned, it should be forbidden for a Jew to (purchase and) use the item unless the return policy is explicitly waived .
Several possible solutions are discussed in the Poskim. One suggestion is for the buyer to stipulate that part of the payment is given in exchange for the right to use the merchandise, such that if the item is returned, the seller would deduct a fair usage fee .
Another approach is for the seller to stipulate that, if the customer is dissatisfied, the seller will purchase the item back from the customer, framing the return as a new sale rather than a reversal of the original transaction. Others suggest requiring the customer to retain the item for a minimum number of days before being eligible to return it. According to the Alter Rebbe The last two solutions are not sufficient.
However, an argument could be made that a return policy is fundamentally different from a conditional sale, for several reasons .
The concern of ribbis in a conditional sale arises because, at the time of the transaction, the sale is not complete. Since ownership has not fully transferred, the money given to the seller is halachically viewed as a loan. If the buyer then uses the merchandise and later returns it for a refund, he effectively receives back his money together with the benefit of usage, constituting ribbis.
Critically, the incompleteness of the sale depends on the parties' intentions. If either the buyer or the seller views the transaction as conditional and subject to reversal, the sale lacks finality from the outset.
A standard return policy, however, is not structured as permission for the buyer to use the item temporarily and then decide whether to keep it. Rather, it is designed to provide the buyer with a sense of security and to serve as a commercial incentive for the seller to attract customers. This is a conventional and natural business practice, not a conditional sale.
Accordingly, if at the time of purchase the buyer is relying on the return policy, intending to use the item and decide later whether to keep it, this would indeed raise a concern of ribbis. If, however, no such intention exists at the time of sale, it is difficult to claim that the transaction is incomplete. Both parties involved fully intend for the sale to be final, and the return policy remains merely a contingent commercial safeguard rather than an operative condition of the sale.
A further reason is that the entire concern hinges on construing the conditional sale as a halva’ah, where the seller is considered to have received money upfront and, in return, permits the buyer to use the merchandise, raising a concern of ribbis. Such a construction may be plausible in a case where the seller is financially reliant on each sale. And does not have a large customer base, in which case the hana’ah of usage could be framed as consideration for the loan.
However, this reasoning does not apply to standard retail commerce. Large stores are not reliant on individual transactions for cash flow and have a significant consumer base. The payment would not be viewed as a loan extended to the seller. Rather, the transaction is conducted within the normal framework of a sale with a return policy, and there is no meaningful basis to characterize the buyer’s use of the item as a benefit granted in exchange for a loan.
[A distinction may be made between a seller in a small business and a large commercial enterprise. In a small business, there is anan sahadi (halachic presumption) that the seller’s intent in accepting payment is at least partly to obtain immediate funds for inventory or ongoing operations. Accordingly, if the buyer is permitted to use the item with the option of returning it, the money may be viewed as a loan. In contrast, in a large commercial enterprise, it may be presumed that the seller does not require immediate funds, and therefore, the payment would not be considered a loan]
This last point may be challenged based on the Alter Rebbe’s view that even when the buyer makes the condition, the transaction is prohibited. This indicates that the issue is not whether the seller actually benefits from the use of the money, but that the sale is halachically incomplete.
On a broader level, some argue intention is not decisive. Rather, the critical factor is the ability to undo the sale. Where a clause exists that allows the transaction to be reversed, the money is viewed as a loan, and any use of the item before refund constitutes ribbis, regardless of the parties’ intent.
However, it's difficult to argue that the mere ability to undo a sale renders it incomplete ab initio; rather, what is decisive is the mutual intent (da‘as makneh ve-koneh) at the time of sale.
This is evident from a case in which a sale may later be undone, such as where a defect is discovered (mekach ta‘ut) . Indeed, when a buyer purchases an item that is later found to be defective and intends to return it, it would be forbidden to use the item. And if he nevertheless does so, the seller must deduct a fee for the benefit of that usage . Nevertheless, although the sale may be undone retroactively, it was initially effected as a complete transaction. This is evident from the fact that if the buyer chooses to retain the defective item, he may use it , and the sale is not regarded as incomplete merely because the buyer possesses the option to undo it.
Additionally, many stores allow returns only on unused items. Once the item is used, the buyer forfeits the right to return it, effectively completing the sale. In cases such as clothing or shoes, where stores permit the customer to try items on for size or appearance, this usage is negligible, effectively removing any issue of Ribis.
L’halachah: Although a return policy may be viewed as a commercial safeguard and not a condition of the sale, some opinions regard it as a conditional sale, and that using the item before return constitutes ribbis, possibly min haTorah. Therefore, one should avoid the issue when purchasing from a Jewish-owned store, especially a small business, by either explicitly waiving the right of return at the time of purchase or stipulating that the seller will deduct a usage fee corresponding to the benefit received.
Answer: It is widely customary to play a game called dreidel on Chanukkah. Numerous sources discuss the origins and bases of this custom. In general, the dreidel is a cube-like shape with the four letters nun, gimel, hey, shin, one on each side, an acronym for a great miracle happened there (Eretz Yisroel), thus reminding us of the great kindness Hashem performed for us[1].
One way the Game is played is that at the beginning of the game, each player places a sum of money in the middle of the table between the players, and each player spins the dreidel, and depending on which letter it lands, the money is transferred.
The question arises whether this form of playing is permitted or is it considered gambling?
The prohibition of gambling
The Mishnah[2] states that one who gambles is Posul for being a judge or witness in Torah court of law[3]. The Gemara[4] has two opinions as to the reason for this Pesul: Romi Bar Chomo explains that one who gambles is considered a thief, since gambling has the legal status of an asmachta and the Halacha is that an asmachta does not constitute a Kinyan (legal acquisition), consequently, the one who receives the winning money is considered as having stolen the other's money[5].
To explain in brief the Din of asmachta[6]: The Halacha requires, in cases of business transactions (e.g. buying and selling, lending money, etc), the absolute agreement of both parties involved to assure the legality of the transaction. In general, a Kinyan is made through which the transaction becomes legalized[7]. The case of an asmachta is where the transaction was made with a stipulation that is contingent on eventualities, such as “only if such and such happens,” will the transaction take effect. The Halacha[8] is that asmachta Lo Kanyah, which means that even if the eventuality does come to pass, the transaction is still not legalized. That is the transaction not to be actualized.
Rav Sheshes disagrees and holds that gambling does not fall under the category of an asmachta. Rather, the reason why gambling is prohibited is that the person is engaged in a dishonest profession. And is actively involved in things that destroy civilization.
To understand the disagreement between Romi Bar Chomo and Rav Shashes about whether gambling falls under the category of an asmachta or not, we need to understand the logic of asmachta. As explained above, asmachta is that one of the parties involved in a business transaction makes a stipulation that shows their intention that they don't want the agreement to be actualized.
The question is, what is the logic for us to assume that the stipulation was intended not to have the transaction be legalized? One way of understanding this is the fact that he makes a stipulation at the time of the verbal agreement, shows he never intended to have the transaction come to fruition, and the fact that he agreed in principle to the transaction was only to gain the trust of the other party[9].
The other way of understanding is that the person is[10] making the stipulation because he feels in control of the outcome that the stipulation will not be fulfilled, and he is relying on his capability of having that outcome go his way, and therefore never agrees to the conclusion of it not going his way.
Therefore, in a case of gambling where two (or more) people agree amongst themselves that if one wins, the other is willing to give a certain amount of money. If we follow the first way of thinking that they both only promised to pay the money to convince the other to play, yet they never intended to lose and therefore had to pay, then gambling should be considered an asmachta. However, if we follow the second way of thinking, then by gambling, no one feels that they have control over the outcome, and from the beginning are complying with the outcome, as such, therefore, gambling isn’t a case of an asmachta.
The Gemara[11] gives a Halachic outcome which results from their disagreement: in a case where the person gambling makes a living from a regular noble profession and only gambles for fun, Rav Shashes would not disqualify him as a witness or Judge in Torah court cases, whereas Romi Bar Chomo would still forbid it.
The difference being. Romi Bar Chomo would consider the gambler a thief in any case and thus is prohibited from serving in the court of Jewish law. Rav Shashes, on the other hand, would hold that since he makes an honest living, he would be sensitive to others when it comes to legal money cases, whereas if his livelihood is through gambling, he loses all sensitivity to another’s hard-earned money, and it would be easier for him to lie in court[12].
The consensus of the Rishonim[13] is that the Halacha follows in accordance with Rav Shashes, and gambling is considered unprincipled only for someone who has no other occupation.
Gambling is considered stealing, Rabbinically
From the above, it seems that according to the view of Rav Shashes, the only issue with gambling is in relation to one's honesty and respectability of his profession, and thus to his capacity as judge or witness in judicial cases. Therefore, if the person has an honest livelihood, it would be permitted for him to gamble.
Yet the Rambam seems to learn that even according to Rav Shashes, gambling has a rabbinic prohibition of stealing and thus is forbidden entirely regardless of profession. For the Rambam writes in Hilchot E’dous[14] “similarly (it is forbidden to have as a judge or witness) one who gambles and has no other occupation since he isn’t being occupied in an honest profession, and he is presumed to be eating (living) of stolen money won by gambling which is considered like sealing rabbinically”.
From the wording of the Rambam, it is clear that he learns there is an element of stealing (Rabbinically) in the view of Rav Shashes. It thus seems[15] that the Rambam is learning the logic of Rav Shashes differently to the way we mentioned above, for here it’s not about him being a sensitive judge or witness, rather the reason why a gambler who has no other honest profession is posul is because since his livelihood is based on winning money from others, it’s considered like he is living off theft and a thief is posul for judicial cases.
Yet from this alone, the element of theft would be only if this is the person’s singular way of making money; if, however, he has another source of making honest money, gambling would be permitted.
However the Rambam in Hilchot Gezelah[16] clearly learns that gambling is theft and thus forbidden regardless if he has another source of making money, for he writes “gambling is theft Rabbinicaly, for even though the winner is taking the money with the full consent of the owners, nevertheless since he is receiving free money through sport, it is considered theft on a rabbinic level”.
It would seem that there is a contradiction between the Rambam in Hilchot Gezelah (where it would appear he is ruling in accordance with Romi Bar Chomo), and his ruling in Hilchot E’dous[17]?
Perhaps a simple distinction could be made[18]. In the laws of E’dous, the Rambam is talking about one being Posul from judicial procedures; therefore, he explains Rav Shashes as only disqualifying a person whose only source of a livelihood is gambling. Whereas in the laws of Gezelah, the Rambam is talking about the laws of theft and learns from Rav Shashes that gambling is a kind of theft on a rabbinic level.
Rav Yosef Cairo in the Shulchun Aruch[19] (who generally uses the language of the Rambam) likewise follows the view of the Rambam that gambling is theft on a rabbinic level.
The other Rishonim[20], however, learn that if one has another honest profession, gambling would be permitted, for there is no aspect of theft even on a Rabbinic level.
This would also seem[21] to be the opinion of the Rama, who writes that one who has another profession is permitted to gamble and wouldn't be Posul.
Gambling: making a Kinyan
What comes out, according to Ram, is that there is no issue of theft in gambling. The question that arises is, does the Rama obligate the loser of the gamble to pay the promised sum? For (as explained above), for there to be a legal agreement to obligate one to another, a Kinyan must be made, and as long as no Kinyan is made, there is no obligation for the loser to pay up.
Now in a case where two people give each other their word, that if they lose they would give X-amount of money to the other, the verbal agreement in it of itself not a Kinyan, this is because the Halacha[22] is that if a stipulation was made at the time of a transaction (and no formal Kinayn was made), the transaction is not valid until the stipulation is fulfilled, therefore in the case of gambling the Kinyan could only take affect after the game is over when the outcome is clear, but at that point the loser may decide to back out and the winner wouldn’t be able to force him to pay.
In other words, even if we say like Rav Shashes that gambling is not an asmachta, nevertheless, there is still no Kinyan, and therefore, what gives the right for the winner to take the money[23]?
To explain this, we need to first understand the reason for making a Kinyan by transaction in the first place. The concept hinges on the Halachic definition of ownership. In other words, how do we understand the Halachic concept of ownership, and therefore what would be necessary to effect a change of ownership?
The general understanding of ownership is where one has possession (and usage) of the article. Yet if this is so, why is the Halacha[24] that if someone finds a lost article, the finder cannot keep it (if it has simonim), for now it’s in the finder's possession? We must note that possession extends not only to the physical space of the article, but also to the owner's conscious awareness of their ownership; thus, when an article is lost, there are ways to determine whether the owner still retains conscious ownership or not. [25]
Therefore, to effect a change in ownership, the conscious awareness and willingness of both parties are necessary. By transferring ownership, like in a case of one buying an article from his friend, only with the conscious awareness and willingness of both parties would the transfer be legalized for otherwise, if there would remain some uncertainty as to the full awareness or willingness of any of the parties, it would render the transfer void.
The Kinyan is what ensures the full awareness and compliance of the parties; where no Kinyan is made, the element of conscious agreement is missing. Thus, the Halacha[26] is, if one agreed to sell his house to his friend and they agreed on a price but no Kinyan was made, there is no transfer of ownership and both have the legal right to back out (although it should not be done[27]).
The question is in a case where the verbal agreement itself does effectuate a Kinyan, and there is a stipulation in the agreement, do we look at his words and say his main intention is to have the stipulation fulfilled and thus there isn’t willingness on the part of one of the parties to affect change of ownership, and therefore there is no Kinyan, or is the Kinyan his main intention and the stipulation is just how he wants the Kinyan to take effect.
This seems to be the case by gambling[28], for the actual verbal agreement would be considered binding and thus a Kinyan (for as according to Rav Shashes gambling is not an asmachta therefore the actual words are the Kinyan), yet the agreement has a stipulation that ‘if I win you owe me money and if you win I owe money”. Therefore, how could we say that there is a conscious willingness to transfer ownership of the money? (This could also be the reason[29] according to Rav Yosef Cairo, why he holds that gambling is stealing, for since there is no conscious willingness, the loser was never obligated to pay the bet).
To answer all of this, the Rama introduces a new element to the effect of Kinyan[30] that the Kinyan is taking the article out of the original owner’s property and placing it in the others (known as Kinyan Chotzer). This is then affecting the change of possession and ownership. As such, the Rama[31] says that when gambling, only if both have the money designated or if the money is put on a table which belongs to both, would the winner be allowed to take the money (and it wouldn’t be considered theft, for in these cases the money was put in his possession already). If, however, the plays just agreed to pay, then there wouldn’t be any way the winner could obligate the loser to pay up (and still further, if he does, it would be considered stealing).
Playing dreidel for money
Based on the above, the Halacha regarding playing dreidel for money would depend on whether one follows the ruling of the Mechaber, who holds it is forbidden. Whereas those who follow the Rama would hold it permissible, and the question of paying would depend on whether there is an actual Kinyan (by placing the money in the ‘property’ of both players).
However, it seems that the opinion of the Shulchun Aruch HaRav is that, according to all opinions, gambling and thus playing dreidel is Ossur. For he writes[32]: “gamblers who stipulate to each other that whoever wins will take such and such, is stealing Rabbinically, for although the money is being taken with the agreement of the owners, since he received it free through sport, it constitutes a Rabbinic prohibition. (While) One who plays with a non-Jew, there is no stealing, but there is a prohibition of being involved with idol things, for it is unbefitting for man to be involved with such things his whole life; rather, he should be involved with wisdom and civil decorum. Yet some say that even playing with a Jew is like playing with a non-Jew and there is no issue of stealing (nevertheless, there is an Issur involved as is explained in A”C Simon 322) …… nevertheless, if the money wasn’t designated they could back out…”
The Alter Rebbe first quotes the opinion of the Rambam (and that of the Mechaber), that gambling with a Jew is prohibited. Then he quotes the opinion of the other Rishonim (and the Rama) that gambling is not an issue of stealing, yet even according to the second opinion, he writes in parentheses that there is an Issur. While he doesn’t specify the issue involved, nevertheless, from the source he gives, it’s clear that the issue is that of Stealing. For if one looks up the source, all the Acharonim[33] learn that the issue is that it’s slightly considered theft.
Furthermore, the Alter Rebbe doesn’t come to a Halachic conclusion as to whether we follow the first or second opinion he quotes, and thus it would seem that one should be Machmir like the first opinion (as that is the general rule when he mentioned two opinions without cleary stating who we follow), that of the Rambam who holds clearly that there is an Issur of stealing[34].
Therefore, playing dreidel according to the Alter Rebbe at best is a slight issue and at worst a full-out Issur of stealing on a Rabbinic level.
Playing for little money
One could argue[35] that if the issue is stealing, then only if a considerable amount of money is at stake would we say the loser never intended to lose; as the issue of asmachta and theft would apply. However, if the amount being won is small and of no major loss, we perhaps could say the players agreed wholeheartedly to the other receiving the money.
However, this would be true if we’re following the explanation as to reason gambling is considered stealing as being based on the laws of Kinyan versus asmachta. However, following the reasoning of the Alter Rebbe (quoting from the Rambam), the reason it’s considered stealing is that he is receiving free money through sport, this being the case despite the willingness of the players to pay the money. Thus, anytime one receives money through sport, it is an issue of stealing, and as stated before, since the Alter Rebbe doesn't come to a clear decision as to whom we follow, we should be Machmair even if the game is for a small amount of money. (And even according to the second opinion, there is an Issur).
L’halacha: playing dreidel for money, whether for a small or large amount, where the winner keeps the money, is problematic. Likewise, any other similar game, e.g., throwing coins into a can for money, is an issue of stealing and should not be played. However, playing for money with the intentions of giving everything back to the original owner is permitted and encouraged, for the game of dreidel has deep spiritual meaning to it.
[1] עי' ס' טעמי המנהגים סי' תתנט, ובני יששכר מאמר כסלו מאמר ב' אות כ"ה, ובמנהגי החת"ס פ"ה, וראה ס' נטעי גבריאל פנ"א בהער' א וב'.
[2] סנהדרין פ"ג מ"ג, ר"ה פ"א מ"ז
[3] פי' רש"י בגמ' סנהדרין כ"ד: ד"ה ואלו
[4] סנהדרין שם
[5] פרש"י שם ד"ה לא קניא
[6] עיין בב"מ ס"ו. טור חו"מ סי' רז.
[7] עיין לקמן
[8] שו"ע חו"מ סי' ר"ז:ב
[9] עי' פרש"י בב"מ ס"ו. ד"ה אני אומר, ופי' הרשב"ם בב"ב קע"ג: ד"ה רבי יהודה סבר. אמנם מהרמב"ם הל' מכירה פחי"א ה"ו משמע שפי' אסמכתא היא שיש ספק בו וממילא לא הקנה (ולכאו' יש נפק"מ בהלכה בין הפירושים)
[10] כן נראה מפרש"י סנהדרין כ"ד: ד"ה אסמכתא וד"ה כל כי, וכן בפי' הרשב"ם בב"ב קי"ח. ד"ה אסמכתא
[11] סנהדרין שם
[12] טור חו"מ סי' ל"ד
[13] זה נראה שיטת הרי"ף והרא"ש בסנהדרין, תוס' שבת קמ"ט: ד"ה מאי טעמא ובעירובין פ"ב:. אמנם שיטת רש"י היא שפסקינן כרמי בר חמא עי' פי' בשבת שם ד"ה משום קוביא ובר"ה כ"ב. ד"ה בקוביא
[14] פ"י ה"ד
[15] ראה טור חו"מ שם ועי' שם דחולק על הרמב"ם בזה וכתב נפק"מ
[16] פ"ו ה"י
[17] כן הקשה כל המחברים, עי' מגיד משנה בהל' גזילה וכסף משנה בהל' עדות ועוד
[18] עי' ב"ח חו"מ סי' ל"ד ד"ה כתב, ולחם משנה בהל' גזילה, וט"ז חו"מ שם ד"ה מפריחי יונים
[19] (שו"ע חו"מ סי' ש"ע:א וסי' ל"ד:ז וכן נראה שיטותו באו"ח סי' שכ"ב)
[20] הנ"ל הע' 13
[21]אינו מוחלט לגמרי זהו שיטתו עיין באו"ח סי' שכ"ב, ועי' שו"ת יבי"א ח"ז חחו"מ סי' ו
[22] שו"ע חו"מ סי' ר"ז:ב
[23] עי' דרישה חו"מ סי' רז סקי"ח
[24] שו"ע חו"מ סי' רסב
[25] There seems to be a question about subconscious awareness as well, this being the question in the Gemara if Yeiyoush Shlo M’da’as Ha’vy Yeiyoush.
[26] שו"ע חו"מ סי' קפ"ט
[27] שו"ע שם סי' רד ושוע"ר הל' מכירה:א
[28] עי' דרישה שם
[29] There is room to argue that this is the reason of the Rambam and Mechaber as to why it is considered stealing Rabbinically. This is especially so according to the סמ"ע סי' ר"ז סק"ו וכ"ח that even if an actual formal Kinyan was made, still he wasn’t Konah the money because a stipulation shows that he is not willing to transfer ownership.
[30] עי' סמ"ע שם סקל"ג
[31] חו"מ סי' רז סעי' י"ג
[32] שוע"ר הל' גזילה סעי' ל"א
[33] עי' מג"א שם סק"ח ומחצית השקל שם, פרמ"ג במשבצ"ז סק"ד שם, ובתהלה לדוד שם, ומשנ"ב סקכ"ב. (ודוחק לו' שיש איסור אחר)
[34] יש מה להוסיף בביאור לשון אדה”ז ואיכ”מ
[35] כן רוצה לחלק בס' נטעי גבריאל הל' חנוכה ע' שז
Halachic Analysis
Conditional Sales and Ribbis
The Mishnah teaches that if one sold a field and accepted a partial payment, while stipulating that the buyer may take possession only upon completion of payment, the transaction is forbidden.[1] Similarly, the Gemara records a Baraisa prohibiting a sale where the seller retains the right to reclaim the property upon refunding the buyer.[1]
Rashi explains that such a transaction constitutes Ribbis, for if the property is eventually reclaimed, it is revealed retroactively that the money given was a loan, and the buyer benefited from use of the property without payment.[2]
The Poskim debate whether compensating the seller for the interim use would remove the Ribbis concern [3]. The majority rule that it does not, since the transaction’s retroactive invalidation defines the money as a loan ab initio.[4]
The governing principle is that any sale subject to a condition that may nullify it retroactively is not a true sale, and any benefit derived during that period is Ribbis.
Proof from Botei Arei Chomah
The Gemara in Arachin discusses houses sold in walled cities, which may be redeemed by the seller within one year.[5] The Gemara explains that the buyer’s use of the house during that period would normally constitute Ribbis, and is permitted only because the Torah explicitly allows it.
This establishes that any sale containing a redemption period generally prohibits use of the item until the period lapses, unless a specific Torah exception applies.[6]
Buyer’s Right of Return
One might argue [7]that the above cases involve the seller’s right to rescind the sale. The reason is that for the sale to take effect, the property or item needs to be halachically transferred from the seller’s domain to the buyer's. However, in this case, it’s still considered in the seller’s domain, since there is the option of taking it back by refunding the buyer his money.
However, in modern retail transactions, the return option exists for the buyer’s benefit.
If he doesn’t like the purchase, he has the right to return it and be refunded. There is a halachic sale and complete transfer from the seller's domain to the buyer, and if/when the buyer does return the item, it would be like a new buying and selling, i.e., the buyer selling it back to the initial seller.
Nevertheless, the Alter Rebbe rules explicitly that even when the buyer conditions the sale on his right to return the item, use of the item during the return period constitutes Ribbis.[8] The possibility of retroactive nullification is sufficient to render the money a loan.
Jewish-Owned and Non-Jewish-Owned Stores
When the store is Jewish-owned, a buyer who intends at the time of purchase to return the item may not use it during the return period due to Ribbis. If the buyer intends to keep the item, he may use it, even if he later decides to return it, since no conditional intent existed at the time of sale.
When the store is non-Jewish-owned, Ribbis does not apply. However, an issue of Geneivas Da’as remains.
Geneivas Da’as
The Gemara prohibits deceptive conduct even where no monetary theft occurs.[9] This prohibition applies equally in dealings with non-Jews.[10] Purchasing an item with premeditated intent to return it misrepresents the buyer’s intent and exploits the seller’s return policy, constituting Geneivas Da’as.
Online Retail and Amazon
In online marketplaces, returns frequently impose direct financial harm on sellers, including shipping costs, processing labor, inventory disruption, and performance penalties. Where the seller may be Jewish, this may also implicate Ribbis. Consequently, purchasing with the intent to return is prohibited.
Halachic Conclusion
It is forbidden to purchase an item with the intention of returning it, even from a non-Jewish-owned store, due to Geneivas Da’as. If the store is Jewish-owned, and the buyer intends to return the item, he may not use it during the return period due to Ribbis. If the buyer intends to keep the item at the time of purchase, he may use it, even if he later returns it, without concern for Ribbis.
[1] בבא מציעא ס"ה: וכן הלכה עיין שו”ע יו”ד סימן קעד:ה
[2] שם ד"ה אסור
[3] עי' ט"ז יו"ד סי' קע"ד סק"ד , ס' ברית יודא פ"א אות י"ג
[4] ראה רמ"א סי' ק"ס:ה ובביאור הגר"א אות ט', ושוע"ר הל' רבית ס:ה
[5] ל"א.
[6] עי' פ"ת סי' קע"ד סק"ב
[7] עי' שו"ת מנחת אלעזר ח"א סי' מ"ד
[8] סעי' נ"ה
[9] חולין צ"ד.
[10] שו"ע חו"מ סי' רכ"ח:ו ושוע"ר הל' גניבת דעת ס:י-י"א
Answer: The Gemara states: “One who goes out on the road recites a prayer.”¹ The Gemara then asks: When is this tefillah recited? It answers: from the point that one sets out on the road, and clarifies that this refers to a journey of a parsah.
The Rishonim debate the intent of the Gemara in defining a parsah as the measure²: Rashi³ explains that the parsah defines the timeframe for reciting Tefilas HaDerech: from the beginning of the journey until one has traveled a parsah. After that point, the tefillah may no longer be said. BaHa”G⁴ understands that the Gemara is not defining a timeframe, but rather the type of journey that obligates the tefillah. According to this view, Tefilas HaDerech is required only when one intends to travel at least a parsah.
Reason for the BaHa”G: Since Tefilas HaDerech is a prayer for protection from the dangers of travel, the BaHa”G explains that only a journey extending beyond a parsah, generally outside the settled area of the city, was considered dangerous enough to require the tefillah.
Halachic Ruling
The halacha follows the opinion of the BaHa”G⁵. Accordingly, Tefilas HaDerech is recited with Shem Hashem only if one plans to travel the distance of a parsah. Nevertheless, for a shorter journey, one may still recite the text without concluding with a beracha.
A further question arises: Is the parsah measured by the time it would take to walk that distance (approximately 72 minutes), or the actual distance traveled, even if it takes only a few minutes by car, bus, or train?
Proof from Korban Pesach
The Mishnah states that one who lives beyond the city of Modiin is exempt from bringing the Korban Pesach, since the Torah exempts one who is “far away.”⁶ The Gemara asks: What if someone lives beyond that distance but could arrive on time by riding a horse or donkey?⁷ The Gemara answers that the exemption depends on distance, not travel time.
Application to Tefilas HaDerech
The Poskim debate whether this principle applies only to the Korban Pesach or establishes a general rule for all halachic measures of distance.⁸ The majority of Poskim rule that it is a spatial measurement, even if the journey takes only a few minutes.⁹ Thus, any trip longer than a parsah, approximately 2.3–3 miles (≈3.7 km), requires Tefilas HaDerech with Shem Hashem.
Furthermore, several Poskim note that while the dangers of travel once consisted mainly of wild animals or bandits, modern travel carries its own risks, most notably motor vehicle accidents.¹⁰ Accordingly, the underlying reasoning of the BaHa”G applies even more strongly today.
Final Halacha: Lechatchila, any journey that will be longer than one parsah, approximately 2.3 miles (≈3.7 km) according to some opinions, or 3 miles (≈4.8 km) according to others, requires reciting Tefilas HaDerech with Shem Hashem. For a journey shorter than this distance, the tefillah may be recited without concluding with “Baruch Atah Hashem.”
[1] ברכות כ"ט: -ל.
[2] עי' ראש שם ובב"י סי' ק"י
[3] שם ד"ה עד פרסה
[4] הובא ברש"י שם
[5] שוע"ר סי' ק"י:ח
[6] צ"ג:
[7] שם צ"ד.
[8] עי' שו"ת יבי"א ח"א סי' י"ג שמביא כל השיטות
[9] עי' שד"ח מע' ברכות סי' ב אות ט"ו, וס' אהלך באמתך פ"ט אות מ"ז
[10] עי' שו"ת אז נדברו ח"י ושב"ט ח"י סי' כ"א
E.g, one who does not open bottles or cans on Shabbos, is he permitted to ask another person, who does open them, to do so on his behalf? Likewise, may one who doesn't carry in the Eiruv ask a friend who does to wheel a stroller for him on Shabbos? Or, one who doesn’t hold of a certain Hechsher may he give that food to someone who does?
Answer: The Rama writes that one who customarily refrains from eating certain foods, either due to his understanding of the law or out of stringency, may nevertheless eat together with someone who does eat those foods, and we are not concerned that the latter will cause the former to transgress.¹
The Shach explains that the underlying concern is the prohibition of lifnei iver lo siten michshol, causing another person to sin.² From this discussion, it appears that lifnei iver can apply even where the prohibition is not absolute, but exists only according to one party’s halachic conclusion.
Based on this, it would seem that any act a person considers forbidden, whether due to his halachic ruling or even a chumrah, should not be done for him by another Jew—since, in his mind, the act remains prohibited.
Why Early/Late Shabbos Is Different
One cannot prove permissibility from the halacha that allows a person who accepted Shabbos early (or delays ending Shabbos) to ask another Jew, who has not yet accepted Shabbos, to perform melacha.³ In that case, the person requesting the act fully acknowledges that, for the other individual, it is objectively permitted time-wise.
In contrast, in our case, the person who considers the act forbidden believes that it is forbidden for everyone, which would seemingly create an issue of lifnei iver.
Proof from Rav’s actions
The Gemara relates a case in which Rav examined an animal’s windpipe, and his students pointed out that according to Rav’s own teachings, the animal should be considered non-kosher. Rav then sent the case to Rabba bar bar Chanah, who ruled the animal kosher.⁴
The Gemara asks how Rav was permitted to do so, given that he himself considered the animal forbidden. This suggests that referring a case to another authority that permits it does not necessarily constitute lifnei iver.
The Kesav Sofer cites this Gemara as a potential proof, but limits its scope.⁵ He suggests that Rav may not have definitively ruled the animal non-kosher himself, leaving room for doubt.
Additionally, even if this case proves that one may give food he considers non-kosher to someone else, it does not necessarily prove that one may ask another to perform an act for his benefit which he himself holds to be forbidden.⁶
A critical distinction can be made based on why the first person refrains from the act:⁷ If, according to his own halachic conclusion or that of his posek, the act is forbidden, He may not ask another Jew to perform it for him, since in his view he is causing another to transgress. If, according to his posek, the act is permitted, but he chooses to be stringent, He may ask another person, who relies on the lenient opinion, to perform the act, as no halachic prohibition is being violated.
Final Halacha: If, in the view of the one who is strict, thinks that the act is halachically forbidden, he may not ask another Jew to perform it for him, even if that person holds it is permitted. This would constitute lifnei iver according to his understanding.
However, if he thinks the act is permitted according to Halacha, and he refrains only as a personal stringency (chumrah), he may ask another person, who relies on the lenient opinion, to perform the act for him. In this case, no halachic prohibition is being performed.
[1] יו"ד סי' קי"ט:ז
[2] שם סק"כ
[3] עי' שו"ע סי' רס"ג בסופו, ומג"א שם ועיין שוע”ר שם ובקו”א
[4] חולין מ"ד:
[5] שו"ת כתב סופר יו"ד סי' ע"ז ועיין שם בשם השער המלך ומשום שוויא אנפשיה ובשו”ת פרי יצחק ח”ב סימן לח
[6] עי' דרכי תשובה סי' קי"ט סקמ"ח
[7] כן פסק רשז"א הובא בס' מאור השבת בקו' "פנימי המאור" מכתב ג' אות ח', ועי' שו"ת אג"מ או"ח ח"ד סי' קי"ט, ועיין במנחת אשר חלק א סימן י”א
Introduction: The question of genetic testing before marriage must be analyzed on two distinct halachic fronts:
1. Does genetic testing violate the prohibition of inquiring into the future, as implied by the mitzvah of “תמים תהיה עם ה' אלקיך”?
2. Is one permitted to enter marriage while harboring reasonable doubts about the health of future offspring, or is there an obligation to remove such doubt?
Does Genetic Testing Violate Tamim Tihyeh?
The Torah commands: “תמים תהיה עם ה' אלקיך”—one must walk with Hashem in wholesomeness and not seek supernatural knowledge of the future. Chazal derive from this that one may not consult fortunetellers, astrologers, or other means of divination, even regarding matters of health.[1]
The Gemara[2] relates that King Chizkiyahu refrained from marriage because he foresaw (through ruach hakodesh) that his children would be wicked. The Navi Yeshayahu rebuked him, stating that he was punished because he involved himself in matters reserved for Hashem: “בהדי כבשי דרחמנא למה לך”, a person must do what is incumbent upon him, and Hashem will do His part.
At first glance, this suggests that one must fulfill the obligation of marriage and procreation without concern for future outcomes, which would imply that genetic testing is prohibited.
Further support for this view could be drawn from the principle of שומר פתאים ה’, Hashem protects those who act normally in situations of minimal risk.[3] Since the vast majority of couples give birth to healthy children, one might argue that genetic testing is unnecessary and reflects improper fear of unlikely outcomes.
The Counterargument: Pikuach Nefesh and Hishtadlus
However, compelling arguments exist in favor of permitting genetic testing.
Halacha teaches that pikuach nefesh [4] overrides nearly all Torah prohibitions[5], and this applies even in cases of safek pikuach nefesh, a mere doubt of danger to life[6]. Additionally, we are obligated to follow the natural order (derechei hateva) and may not rely on miracles[7]. One may not place oneself, or others, in even minimal danger while assuming divine intervention[8].
Genetic testing is not divination or prophecy; it is a form of natural medical evaluation. As such, the prohibition of tamim tihyeh does not apply. Rather, refusing to act on available medical knowledge could constitute improper reliance on miracles.
Indeed, Rav Moshe Feinstein[9] explicitly rules that genetic testing is permitted and does not violate tamim tihyeh.
Is Genetic Testing Merely Permitted, or Obligatory?
The Torah commands pru u’revu, obligating a man to have children[10]. And this is one of the 613 commandments[11]. Chazal state that one who fails to fulfill this mitzvah is considered as though he diminished life itself [12].
Halacha further rules that one whose children did not survive has not fulfilled the mitzvah[13]. This raises a critical question: Is one obligated to marry when it is reasonably known that the marriage will likely produce children who will not survive or will suffer severe, life-threatening illness?
We find precedents for refraining from marriage under such circumstances: in this week’s Parasha, Amram, Moshe Rabbeinu’s father, separated from his wife upon learning that male children would be killed, and many others followed suit[14]. The Midrash relates that the wives of Lemech separated from him because they knew that his lineage was cursed and would not endure[15].
Yet before Matan Torah, Bnei Noach were already obligated in pru u’revu.[16] How, then, were such actions permitted? One must conclude that when it is known in advance that offspring will not endure, the obligation does not apply.[17]
A similar concept appears in the Gemara,[18] which records that during Roman decrees banning circumcision, Chazal considered abolishing marriage altogether to avoid producing uncircumcised children (though Tosafos qualifies this; others disagree). The very consideration demonstrates that there are circumstances in which refraining from marriage is halachically preferable.
Additional Halachic Considerations
Halacha requires a man to investigate the family of a prospective spouse, and if there is a presumption of severe hereditary illness, marriage should be avoided.[19]
Moreover, failing to pursue genetic testing when a credible risk exists may violate “לא תעמוד על דם רעך”, standing idly by in the face of danger, applied here to one’s future children.[20]
One may infer from this that where there is prior, reliable knowledge that a marriage will, with high likelihood, result in offspring who will not be viable or will suffer life-threatening illness, the obligation of pru u’revu does not apply in its ordinary form; accordingly, one is not required to enter such a marriage in a manner that would knowingly prevent the fulfillment of establishing viable offspring.
L’Halacha: Genetic testing before marriage: Is permitted and obligatory, as it does not violate tamim tihyeh and constitutes proper hishtadlus and can identify significant, life-threatening genetic risks. Entering marriage while knowingly ignoring preventable danger to future children is not an expression of bitachon, but a neglect of halachic responsibility.
[1] שו"ע יו"ד סי' קע"ט:א ט"ז ס"ק א' ועי' דרכ"ת סק"ג
[2] ברכות י. עי' חי' המאירי שם
[3] עי' שו"ת צמח צדק אבה"ע סי' פ"ט
[4] דרוב המחלות הם סכנת נפשות
[5] גמ' סנהדרין ע"ג. עי' שו"ע חו"מ סי' תכ"ח ויו"ד סי' קנ"ז
[6] שוע"ר סי' שכ"ט:ח ועי' לקו"ש חל"ב פ' קדושים ב' ועי' בהערה שם 21
[7] עי' גמ' שבת ל"ב: וגמ' תענית כ: ושו"ת צור יעקב סי' קמ"ב
[8] גמ' שבת שם ועי' שוע"ר חו"מ הל' שמירת הגוף והנפש סעי' ד וכאן יש לומר דעכ"פ יש מיעוט המצוי בפקוח נפש
[9] שו"ת אגרות משה ח"ז סי' י
[10] בראשית א:כח
[11] רמב"ם מצוות עשה ריב שו"ע אבה"ע סי' א:א
[12] גמ' יבמות ס"ג: שו"ע שם
[13] גמ' יבמות ס"ב: שו"ע שם סעי' ג
[14] עי' גמ' סוטה י"ב.
[15] עי' רא"ם על התורה בראשית ג:כד
[16] סנהדרין נ"ט: ועי' ברא"ם וגו"א שם
[17] עי' ס' פסקי תשובה סי' רל"ח. ואע"פ שמסיפור בגמ' ברכות שם משמע דנענש דלא קיים מצוות פו"ר אע"פ שידוע שסופו להרשע י"ל דשם איירי מצד שסומך על רוה"ק משא"כ כשידע ע"פ טבע
[18] בבא בתרא ס:
[19] יבמות ס"ד: שו"ע שם סי' ב:ז ועי' פ"ת סק"ח
[20] עי' שו"ת אגרות משה שם ושוע"ר חו"מ שם
Answer: The Gemara relates that during the Simchas Beis HaSho’eivah celebrations, balconies were constructed for the women so that the men would not see them, which could otherwise lead to frivolity and inappropriate thoughts.¹ Initially, men and women were separated merely by space, but this proved insufficient, since visual contact remained.²
From this, Chazal derive that at public celebrations, a separation that prevents men from seeing women is required; a mere division of space or a low partition does not suffice.³⁻⁴
The Gemara questions how balconies could be added to the structure of the Beis HaMikdash, given the prohibition against altering it. The Gemara answers that a verse in Zechariah teaches that in the time of Moshiach, men and women will mourn separately.⁵ If separation will exist even then, when there will be no yetzer hara, how much more so is it required at times of simcha, when frivolity is more likely.
This idea appears elsewhere in halacha: on Yom Tov, when there is increased joy, extra care must be taken to prevent inappropriate mingling.⁶ Accordingly, at weddings and similar public celebrations, a mechitzah is halachically required.⁷
The Sefer Chassidim writes that at Sheva Brochos, there must be separation between men and women, since we recite “Shehasimcha Bim’ono”, referring to the Divine joy present at such an event.⁸
At first glance, this may indicate that mere spatial separation suffices. However, the Sefer HaMinhagim of R’ Yitzchak Bruna writes explicitly that men and women should not see one another.⁹ The Bach rules that if men and women can see each other, “Shehasimcha Bim’ono” should not be recited, and this is cited as halacha.¹⁰⁻¹¹
The reasoning is that Hashem’s joy does not rest where there are thoughts of impropriety.
The Levush suggests that since men and women commonly attend events together, visual contact may not necessarily lead to frivolity, and he frames this as a limud zechus, not an ideal practice.¹² One might attempt to extend this reasoning to a small, family-only Sheva Brochos, where such concerns are reduced.¹³
Some authorities permit reciting “Shehasimcha Bim’ono” if the women are dressed modestly and there is at least a minimal partition.¹⁴ However, the Levush emphasizes that his approach is not lechatchila, and one can argue that contemporary society presents greater, not lesser, challenges in this area.
The Rebbe writes that true joy at times of simcha, especially weddings, exists only when the celebration follows halacha, and he stresses the importance of a proper mechitzah.¹⁵ Although the letter addresses large gatherings, the underlying principle, that halachic structure itself enhances simcha, applies equally to smaller settings.
Additionally, the Gemara relates that R’ Gidal sat at the entrance of the mikvah so that women would see him, and explains that women did not affect him inappropriately.¹⁶ The Gemara’s need to justify this behavior implies that this is not true for most people, even those accustomed to seeing women regularly.¹⁷
Final Halacha: Lechatchila, to recite “Shehasimcha Bim’ono” at Sheva Brochos, there must be a kosher mechitzah separating men and women, even at a small, family-only Sheva Brochos. Bedi’eved, if a family Sheva Brochos took place without a mechitzah, “Shehasimcha Bim’ono” may still be recited.
[1] סוכה נ"א:
[2] שם
[3] עי' רמב"ם פכ"א מהל' איסורי ביאה וטשו"ע אבה"ע סי' כ"א
[4] עי' שו"ת אגרות משה או"ח ח"א סי' ל"ט –מ"א ועי' שו"ת מנח"י ח"ב סי' כ"א
[5] שם
[6] עי' שוע"ר סי' תקכ"ט בסופו
[7] עי' שו"ת אגרות משה שם ושו"ת באר משה ושו"ת משנ"ה ח"ו סי' רי"ט ושו"ת יבי"א ח"ג אבה"ע סי' י אות ט'
[8] סי' שצ"ג ו-תתש"כ
[9] מנהג כל השנה בהגהות אות י"ד
[10] אה"ע סי' ס"ב קרוב לסופו
[11] עי' בית שמואל סי' ס"ב סקי"א
[12] או"ח ליקוטי מנהגים סי' ל"ו הובא בפ"ת אה"ע שם סקי"ח
[13] עי' בית מאיר בשו"ע שם
[14] עי' שו"ת שבט הלוי ח"ח סי' רפ"א
[15] הובא בשערי הלכה ומנהג אה"ע ע' קכ"ו
[16] ברכות כ.
[17] ראה ס' החינוך מצוה קפ"ח קרוב לסופו ופ"ת אה"ע סי' כ"א סק"ג
Answer: The location of lighting the menorah is mentioned in the Gemara[1] as being outside the entrance of one’s home. Rashi[2] explains that the purpose of this location is in order to spread the miracle to the masses, in Hebrew “Persumi Niso”. The Gemara continues that in a time of danger where the lighting of candles was forbidden by the government, the Menorah is lit in the house.
The understanding of the Gemara is that there are two elements to the obligation of lighting the Menoarh: the lighting of the candles itself and the spreading of the miracle. Thus, if one could not fulfill one of the elements, the other remains.
The obligation nowadays
The Shulchun Aruch[3] rules that nowadays as well there are both elements in the obligation, and therefore he writes that the main obligation is to light outside of one’s home. The Rama[4], on the other hand, disagrees and writes nowadays we all light inside (the house), and there is no persumi to the outside, i.e., public.
Thus it would seem that according to the Rama there is no longer both elements in lighting the Menorah and the main Mitzvah nowadays is to light the candles without Persumi Niso.
Pursumi Niso nowadays
The Rama further writes[5] “that one shouldn’t light the Chanukah candles in the same location where one lights his candles throughout the rest of the year, for even though there is no Persumi Niso for the public, there remains Persumi Niso for the household”, thus even according to the Rama, the aspect of Persumi Niso applies nowadays, its only the application has changed from a Persumi to the Public to Persumi to the members of the household.
And thus the Rama rules that nowadays the time period mentioned in the Gemara for lighting the candles no longer applies, for the reason that the Gemara’s timeline was when the obligation was to light outside and was based on the time people are on the street.
However, nowadays that the persumi is for the members of the household, then as long as there are members awake at the time the person is lighting, he has fulfilled his obligation[6].
However, the Mogain Avraham[7] writes that according to the Rama, the element of persumi to the public is still applicable, and thus rules that when lighting the Menorah in the house, it should be lit by a window facing the street so people from the street could see the candles. This is the reason[8] for the custom by many nowadays who light in the house to place the Menorah in or near a window facing to Public Street.
There are still other[9] that take issue with the Rama and hold that the permission to light in the house was only at a time of danger, but nowadays, when there no longer exists a danger, the Halacha is that the Menorah has to be lit outside the house (unless one lives in a high-rise building). Thus according to them even nowadays we have the element of Persumi to the public.
Lighting in a Shul
In the Rishonim, we find for the first time the custom to have a Menorah light in Shul every day of Chanukah, yet they differ as to the reason for the custom. Rab Yosef Kario in his work the Bet Yosef[10] first quotes the explanation of the Kol Bo who explains that this is similar to the custom to make Kiddush in Shul Friday night so that all those that have no place to eat could be Yotzah with the Kidduah in Shul likewise the lighting of the Menorah was to be Yotzah all that have no place to light.
Then he quotes the explanation of the Rivash that the custom was instituted when it started being dangerous to light candles outside, and thus the element of Persumi to the Public could not be fulfilled; therefore, they instituted to light as well as make a Brocho in shul for Persumi Niso.
In his (Rab Yosef Kario) Shulchun Aruch[11], he rules in accordance with the view of the Rivash’s explanation, that the Menorah should be light in Shul with a Brocho to fulfill the obligation of persumi niso.
A 3rd reason is yet quoted in the Rishonim[12] that the custom is as a Zicher L’Mikdsah a commemoration to the lighting of the Menorah in the Beis HaMikdash since the lighting of candles on Chanukah in general is to celebrate the miracle of the candles of the Menorah in the Beis HaMikdash.
On the ruling of the Shulchun Aruch, where writing about lighting a Menorah in Shul, the Rama inserts that the Menorah should be placed between east and west. The commentators[13] explain that this is the way the Menorah was positioned in the Beis HaMikdash, and thus we should do the same.
The implication of this insertion of the Rama assumes that the reason for lighting in shul was only as a Zicher L’Mikdsah; thus, here the Rama disagrees with the Mechaber (the Shulchun Aruch) as to whether there is an element of Persumi Niso to the public nowadays, with the Rama holding that there isn’t and the lighting in shul has nothing to do with Persumi Niso.
Lighting at a public event
From the ruling of the Shulchun Aruch by the din of lighting in a shul, it could be understood that when there is a gathering of many people like a Shul, and thus there is the element of spreading the miracle, the Menorah should be light Chanukah candles.
Whereas, according to the explanation given for the Rama, there is no such connection and the shul is unique, for it is a Mikdash Miat[14]. Therefore, Ashkenazim (who follow the Rama) wouldn’t light at a public event and certainly not with a Brocho, as Sefardim (who generally follow the rulings of the Mechber) would light at a public gathering.
However we have mentioned earlier there are Ashkenazic authorities who disagree with the Rama and hold that even nowadays there is the element of Persumi to the public and as such when we have the opportunity to light in a public place we should light a Menorah and the lighting in shul is just an example of when there is a gathered of many people and thus Persumi Niso.
Likewise, according to the Mogain Avraham (mentioned above), even according to the Rama, there is no obligation of persumi niso in a public location, and thus we will have to explain the Rama regarding lighting in a Shul that there is also the reason of Zicher L’Mikdsah, yet the main reason is like the Rivash that of Persumi Niso[15].
And thus even Ashkenazim should light a Menorah at a public gathering, and it's especially well known the opinion of the Rebbe[16] that strongly encouraged the lighting of the menorah in as many public places as possible.
In addition, this is all if there is no Minyan for Davening at the event; if, however, there will be a Minyan for Davening, then there is more reason to have a menorah lit for it now has the status of a shul[17].
Making a Brocho at a public lighting
One could ask according to the Mechaber[18] since we already have to light outside anyway why is there still the custom to light in a shul, after all the reason for lighting in shul was to fulfill the element of Persumi Niso, but that is only when we couldn’t fulfill this element do to danger, whereas today we could initially light outside?
Yet from the fact the Mechaber does write this din independently from one’s obligation to light outside means that he learns that the element of Persumi niso is an independently stronger that whenever we have the chance to spared the miracle more there is an obligation to do so.
This is also the reason why the Mechber says to make a brocho on the lighting in shul, for since we are performing a Mitzvah of Persumi Niso, which is part of the Mitzvah to light Chanukah candles, we say the full Brochos.
Therefore it should follow that when lighting at a public gathering we should also recite a Brocho on the Persumi Niso.
Lighting after the Z’man at a gathering
As mentioned above the Gemara gives a specific time period when the Menorah needs to be lit. The Gemara[19] says the Menorah could be lit until the people of the market (street) leave to go home. This was based on the aspect of Persumi Niso in Public which lasts only as long as people are on the street and will see the Menorah.
The Shulchun Aruch[20] rules that the time period is until half an hour after Tzas, and that L’chatchilah one should light by then. The Rama[21] as mentioned above holds that nowadays we don’t have to concern ourselves with this timeline since we light in the house and the persumi niso is for the household.
The question arises what about the lighting of the Menorah just for the element of persumi niso at a public gathering where one has already light in his house or outside of his house to fulfill their obligation of lighting for itself and now wants to fully fulfill the aspect of persumi niso in public, do we say that one could light even after a half hour after chatzos with a Brocho, if the whole reason of this deadline was for the aspect of Persumi to the public[22] ?
One could say that the Menorah should be lit at the proper time and have the candles/oil last long enough that they will still be burning when the event starts. This is based on a ruling of the Mogain Avraham[23] who writes regarding lighting the Menorah in shul on Erev Shabbos where there is a much shorter time period to light do to Shabbos and at the time one could light the Menorah there isn’t a Minyan in Shul, he should still light the Menorah even with a brocho, for when the Minyan gathers there would be Persumi Niso.
Yet there is more reason[24] to say that the lighting should take place at the beginning of the gathering and not before, for the very reason of the Gemara’s timeline. For in this case the Persumi Niso only starts once the people start showing up and thus we have a clear time of when the persumi niso will be in full affect. And it is not all related to the case of the Mgain Avraham where the Menorah can’t be lit later.
And if we want to learn it out from the din of lighting in a shul, it could be learnt from the Halachic time the Menorah is to lit in shul[25] which is between Mincha and Marriv which is before the time the Gemara gives that of Shkiyah (for that is when there is the biggest affect on the people in the market). The reason here too is because in shul this is the time when there are people gathered and thus the aspect of persumi niso affected[26].
In addition, there are some Poskim[27] which hold that nowadays the time period of Gemara has changed to modern society, and thus some hold that even according to halacha L’chatchila (and according to the Mechaber) one could light as late as 9 p.m. in some locations.
Being Yotzah if it hasn’t lit
Until now, we have been discussing lighting for Persumi Niso purposes only; however, what is the din with regards to one who hasn’t fulfilled his Mitzvah of lighting at all, could he be Yotzah with the lighting at the gathering?
The Halacha[28] is that all have an obligation to light in their house for Persumi Niso, this includes even someone who is traveling and has others lighting for him at home[29], therefore, one who has their own home will need to light again at home[30]. The question is about someone who doesn’t have a place to light the menorah. Could he fulfill his mitzvah by lighting at the gathering?
The Shulchun Aruch[31] writes, “one who has no light and will not light the entire night(because he has no place to light), as well as he has no one lighting for him either at home or at the place he is staying, when he sees Chanukah candles, he makes the Brocho of Sh’osah Nisim”. The implication from this Halacha is that one who wouldn’t otherwise have where to light, could be Yotzha by making a Brocho on someone else’s menorah.
Yet we explained earlier the whole purpose of the lighting at the gathering is for the Persumi Niso effect, and thus the Halacha[32] is that even the one lighting in Shul is not Yotzah his obligation and has to relight at home with a Brocho. If so the lighting at the gathering could only be used for the persumi niso element and not for the actual Mitzvah of lighting the candles itself[33].
However some argue [34] that in general one isn’t Yotzha with a public lighting, however in a case where one who has no other opportunity to light he could be Yotzah, this is based on the idea according to some Rishonim (mentioned above that the reason for lighting in shul is for those that have no other opportunity to light, (the same as the din of Kiddush in Shul Friday night). Thus, the one who needs to be Yotzah should make the Brocho Sh’osah Nisim when seeing the candles.
Yet even according to these opinions the best thing to do in such a case is pay for some of the candles/oil and thus be a partner in the Menorah, this is based on the Halacha[35] that if someone is staying by someone’s house on Chanukah and has no place to light themselves, they could give the host some money and thus be a Shutof in the Menorah and when the host lights he is like a Shliach for this person.
Therefore, in our case of the gathering, the person who needs to be Yotzah should pay for some of the candles/oil and ask the host to have him in mind when making the Brochos. This is as long as the person will be present at the time of the lighting, otherwise he should make the Brocho Sh’osah Nisim later when he shows up, even if the menorah has already been lit for a half hour, since now is still the time persumi niso to the public as mentioned above[36].
L’halacha: one who is hosting a public gathering or Seudas Mitzvah should have a Menorah light at the beginning of the event and a brocho should be said. This is especially the case if there will be a Minyan to Daven at the event, for then it have the same din as a Shul. The purpose of this lighting is for Persumi Niso only and not to fulfill ones obligation.
If one of the people there won’t have another opportunity to light the menorah that night of Chanukah, he should give the host some money for the candles and he should do the lighting and make the Brocho, if he comes late after the lighting happened, he should make the Brocho of Sh’osha Nisim.
[1] שבת כ"א:
[2] שם ד"ה מבחוץ
[3] תרע"א:ה
[4] שם סעי' ז בהג"ה
[5] שם
[6] רמ"א סי' תרע"ב:ב ועי' מג"א שם
[7]ובלבושי שרד שם, ועי' ערוה"ש סי' תרע"א סעי' כ"ד שם סק"ח
[8] ראה שו"ת אג"מ ח"ד סי' קכ"ה
[9] יעב"ץ ועי' שו"ת אז נדברו ח"י סי' כ"ו
[10] תרע"א ד"ה ומ"ש שמניחין
[11]ועי' שו"ת חכם צבי סי' פ"ח תרע"א:ז
[12] אשכול, ס' המנהיג
[13] ראה משנ"ב סי' תרע"א סקמ"א-ב
[14] עי' בשו"תים: קנין תורה בהלכה ח"א סי' קל"א, מנח"י ח"ו סי' פ"ה, שבה"ל ח"ד סי' ס"ה, אז נדברו ח"ו סי' ע"ה
[15] עי' שו"ת אז נדברו שם
[16] ראה שערי הלכה ומנהג (מילואים והוספות) ע' קס"א
[17] עי' ילקוט יוסף ע' ר"ד
[18] According to the Rama, it makes sense since he holds that even nowadays we light in the house and therefore there remains the element of persumi niso to the public (at least the way the Mogain Avraham explains)
[19] שם
[20] תרע"ב:א
[21] שם
[22] And here we can’t take the view of the Rama since according to the Rama the reason one is allowed to light later is only for the persumi niso to his household and not that of the public.
[23] תרע"א סק"י
[24] כפשוט
[25] תרע"א:ז בהג"ה (it could be asked that this is only mentioned by the Rama, and as said, the Rama doesn’t have to learn that the lighting in shul is because of persumi Niso; however, there is no reason to assume that the halacha will be any different according to the other opinions)
[26] משנ"ב שם סקמ"ו
[27] מועדים וזמנים ח"ב סי' קמ"א וח"ו סי' פ"ו
[28] שו"ע סי' תרע"ז
[29] שם ובמשנ"ב
[30] רמ"א סי' תרע"א:ז
[31] תרע"ו:ג
[32] רמ"א שם
[33] עי' שו"ת אג"מ ח"א סי' ק"צ בסופו
[34] עי' שו"ת התעוררות תשובה ח"א זי' קנ"ג ד"ה לכן , ושו"ת מנח"א ח"ב סי' ס"ח
[35] שו"ע סי' תרע"ז:א ועי' שו"ת אג"מ הנזכר בהע' 33
[36] עי' שו"ת התעוררות תשובה סי' קנ"ד בסופו
Answer: The Shulchan Aruch states[1] that upon exiting a bathroom, we are required to wash our hands, even if the bathroom was used for other purposes (other than relieving oneself)[2]. This is because an evil spirit exists in unclean places[3]. If one entered the bathroom for another use (other than the bathroom’s main function), one may say a Bracha or learn Torah without washing the hands[4]. However, if one relieved himself, a Bracha cannot be recited, since the hands are unclean and we are not permitted to speak of kedusha with unclean hands[5].
What constitutes an unclean place to forbid words of kedusha, such as Krias Shema? Halacha[6] defines an unclean place as any area where the waste has to be cleaned out[7], and where the "seat absorbs the filth which leaves bad fumes"[8].
Our Bathrooms might be considered ‘clean’ according to Halacha for a few reasons:
1) The Gemara[9] cites an example of a bathroom in which the waste disappears down into a "tunnel" and therefore is considered a clean place, and words of Kedusha may be said near it[10]. Based on this, there are poskim[11] who hold that our bathrooms don’t have the Halachic status of an unclean place and therefore we don't have to wash our hands upon leaving them. However, there is a distinction between the bathrooms that existed during the time of the Gemara, and our bathrooms[12]: In our bathrooms, the waste is not washed down right away; it needs to be "flushed". As such, there is a period when the room contains waste and bad fumes might remain, which halachically would make it an unclean place.
2) Our toilets are made of non-absorbent materials[13]. However, sometimes there remains some waste in the toilet.
3) There is a halacha that a bathroom used for other purposes is not considered an unclean bathroom[14], and since most of our bathrooms have other uses, such as a sink or laundry, etc, they do not have the halachic status of a bathroom.
L’halacha: Most poskim hold that our bathrooms have the status of an unclean room l’chumra[15], and therefore one should not say words of Kedusha near it. However, if one uses it for other purposes, one does not need to wash his hands[16]. Even in extreme circumstances, such as washing the hands for davening or eating, one is permitted to use the bathroom sink.
[1] שוע"ר סי' ד:י"ח
[2] פרמ"ג משב"ז סי' ד משנ"ב סי' ד:מ עי' בבאור הלכה סי' תרי"ג ד"ה ואם
[3] שוע"ר מהדב"ת סי' א:ז קצוה"ש סי' ב:י"א משנ"ב סי' ד:ט
[4] פרמ"ג סי' רכ"ז א"א סק"ב משנ"ב שם סקי"א (עי' סדר ברכה"נ אדה"ז פי"ג:י"ז)
[5] שוע"ר סי' צ"ב ועי' באור הלכה שם ד"ה צריך לרחוץ
[6] שוע"ר סי' פ"ג:ד
[7] שם
[8] שוע"ר סי' פ"ז:ב עי' באור הלכה שם בתחילתו
[9] ברכות כ"ו:
[10] שוע"ר סי' פ"ג:ד
[11] שו"ת זקן אהרון ח"א סי' א' שו"ת בצל החכמה ח"ב סי' ז' עי' שו"ת ארץ צבי ח"א סי' ק"י –י"א
[12] חזו"א סי' י"ז שו"ת חלקת יעקב ח"א סי' ר"ה
[13] שו"ת מנח"י ח"א סי' ס' עי' שו"ת משנת שכיר עי' שוע"ר סי' פ"ז
[14] שוע"ר סי' פ"ז:ב
[15] עי' שו"ת מנח"י שם שו"ת יבי"א ח"ט סי' ק"ח ועוד
[16] שו"ת בצל החכמה שם
L’halacha: An empty garbage bin on Shabbos may be moved for cleaning purposes and is allowed to be put back in place. If the garbage had only muktza items in it from when Shabbos comes in, the bin should be kicked with one's foot. A smelly garbage bag may be moved out of one’s house, as long as there is an Earuv. It’s best to peel fruits and remove pits or shells that are inedible directly into the garbage bin, and not on the table.
Discussion: The Shulchan Aruch[1] states that peels, shells, and bones, which are neither human nor animal foods, are muktza. Therefore, items such as egg shells[2], nut shells, and the like are muktza. Similarly, inedible fruit pits are muktza. Items such as peach, avocado, olive, cherry pits, and the like are muktza.
Foods that are not edible for humans, however, are edible to animals (e.g., cats, dogs, chickens), are not muktza[3]. This applies to any peel, shell, bones, and the like that humans wouldn’t eat ever. However, foods that are unfit for human consumption only on Shabbos, e.g., a raw, expensive steak, which the owner would not give such food to his animal, are muktza[4].
This applies only to food edible for animals commonly found in the city or town, which are not muktza[5], even if the person does not own such an animal. However, pets in one’s possession, whether commonly found or not, are not muktza[6].
This type of Muktza is called Muktza Machmas Gufo (inherently Muktza). This is one of the more severe types of Muktza, in that generally one may not move at all[7]. However, there is an exception to this rule, based on the concept called גרף של רעי[8].
The Chachmim permitted the movement of Muktza in cases involving כבוד הבריות, human dignity. One is thus permitted to move repulsive or foul-smelling Muktza from one's house.
This exemption is only in the already existing situation. One may not, however, create or originate an exempting situation to later move the Muktza[9]. Therefore, when eating foods containing pits, or when peeling eggs, it is preferable to expel the pits, remove the shells, into the garbage, rather than into one’s hand[10].
Yet this requires further analysis, for once the pits, shells, etc, are placed in the garbage, the garbage itself becomes muktza.
The halacha is the muktza placed on a base, e.g., table, box, dish, etc, the base becomes muktza as well, this is called a Bosis l’davr Issur[11]. Therefore, a garbage bin that contains inedible items is muktza.
There is a difference when the inedible items were placed into the garbage. The Halacha is, a base becomes a Bosis when the muktza was placed there, before the onset of Shabbos, and was not removed during the entire time period called בין השמשות, in which case even after the muktza item is removed, the base remains muktza[12]. If, however, the items were only placed there after בין השמשות, the base is not muktza[13]. (However, according to some, it is muktza, but as soon as the muktza is removed, the base is permitted to be moved[14]).
Furthermore, any base that also contains edible food or non-muktza items on it is permitted to be moved. This is called bosis l’daver Issur V’hetr[15].
Therefore, a garbage bin, which has only non-moveable muktza on the unset of Shabbos, would be muktza the entire Shabbos. And one is not allowed to move it at all, even after the garbage bag was removed (by mistake, see later).
If, however, the garbage was empty when Shabbos came in or it contained both moveable and non-moveable muktza items, the garbage could be moved. The same applies to the garbage bag as well.
There are, however, exceptions; one is allowed to kick with their foot, the garbage bin. This is called טלטול [16]בגופו. Also, in a case that the garbage is foul-smelling or otherwise repulsive (especially when there are guesses), it may be removed under the exemption of [17]גרף של רעי.
The question arises, is it permitted to intentionally place inedible items in a garbage bin on Shabbos[18]?
The Halacha states, one is not permitted to place a bucket under a water leak if the water is unusable. The reason is, four it’s like breaking the bucket[19]. This is called מבטל כלי מהיכנו. The concept is that one is not allowed to take a usable item and place it in place or situation that would make it unusable for the rest of Shabbos[20].
Based on this, placing inedible items in a garbage bin makes the bin unusable for anything else. This is the case even when one intends to remove the garbage afterwards[21]. If so, it should be forbidden to put these items in an empty garbage bin.
The poskim[22] explain that מבטל כלי מהיכנו is only when the keli is not meant for that limited purpose; however, since the entire purpose of a garbage bin is to put these items in it, this does not constitute מבטל כלי מהיכנו.
L’halacha: an empty garbage bin on Shabbos may be moved for cleaning purposes, and is allowed to be put back in place. If the garbage had only muktza items in it on the unset of Shabbos, the bin should be kicked with one's foot. A smelly garbage bag may be moved out of one’s house, as long as there is an Earuv. It’s best to peel fruits, remove pits or shells that are inedible directly into the garbage bin, and not on the table.
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[1] שוע"ר סי' ש"ח סעי' ס-ס"א
[2] משנ"ב סי' ש"ח סקי"ג ולהעיר משוע"ר סי' ש"ט:י
[3] שוע"ר שם סעי' ט
[4] שם ופרמ"ג סי' ש"ח במ"ז סקכ"ה
[5] שוע"ר שם סעי' ס"ה
[6] שם
[7] שוע"ר שם סעי' ח
[8] שם סעי' ע"ב משנ"ב ס"ק קל"א
[9] שם סעי' ע"ה
[10] קוצה"ש סי' קי"א ס"ק י"ח עי' שוע"ר סעי' ס"ז והגהות חת"ס סי' ש"ח במג"א ס"ק נ"א, ועי' ס' טלטולי שבת. ושו"ת אז נדברו ח"ט סי' ל"ג ושו"ת מנח"י ח"ה סי' קכ"ה.
[11] שוע"ר סי' ש"ט:ד
[12] שם וסעי' ח וסי' ש"י:ד
[13] כנ"ל שיטת רבינו בסי' רע"ז ס"ו וכן מפורש בסי' ש"ח:ס, ועי' מג"א סי' ש"ח סק"נ
[14] ט"ז סי' ש"י סק"ח פרמ"ג א"א סו"ס רע"ט משנ"ב סי' ש"י ס"ק ל"ז ועי' תהלה לדוד סי' ש"ח סקל"ג
[15] שוע"ר סי' ש"ט:ד וש"י:ט"ז
[16] שוע"ר סי' שי"א:מ"ו וסי' ש"ח: ט"ו ורע"ו:י
[17] שוע"ר סי' ש"ח:ע"ב ושש"כ פכ"ב סעי' מ"ד
[18]לכאו' אין כאן שאלה מצד אין עושין גרף של רעי לכתחילה, כיון יש לומר שאין כוונתו לפנות הפח בשבת עי' שוע"ר סי' ש"ח:ע"ה ותהלה לדוד שם סק"מ, ועוד שכבר נעשה על השולחן.
[19]שוע"ר סי' של"ח:ט
[20] עי' ביצה לו, ור"ן שם
[21] כן נר' שיטת רבינו בסי' רס"ו קו"א י"א (אמנם עי' סי' רס"ה:ה ומשנ"ב שם)
[22] כן כתב במשנ"ב סי' ש"ה סק ס"ט ובשש"כ שם בהע' קט"ו (וי"ל אי זה שיטת רבינו)
Answer: In his Shulchun Aruch , the Alter Rebbe paskins: “If a Kaddish or Kedushah was begun with [a quorum of] ten men and some of them leave, the Kaddish or Kedushah that was started may be concluded, provided that the majority of the quorum remain. Nevertheless, it is sinful to depart, and to such people [our Sages] apply the verse, “Those who forsake G‑d will perish.” If ten remain, however, it is permitted to leave”.
Predicated on the principle of “Ain Davar Shbekdusha Pochus MiAsorah ”, because “All Kol Asara Shchinta Sharya ”, a quorum of ten brings Hashem's Shchina; therefore, once a Davar Shbekdusha started when there were ten, as long as 6 remain, the presence of the schinach remains . If, however, only five remain, the Schinach leaves and the Davar Shbekdusha cannot be recited.
The poskim discuss a scenario where 5 remained, and then a new person came into the Shul, making the total number of people six. Could the recitation of the Kaddish continue?
The question revolves around whether, to bring back the shchiena, you need a full ten people present, or since the original five remain. The one extra person contains the shchina's presence . The consensus among the Poskim is that the recitation could continue .
This is all the letter of the law. However, the Alter Rebbe brings the following story : “An incident once occurred involving a pious man. In a dream, he saw another pious man [who had already passed away,] whose face was discolored. He asked [the departed,] “Why is your face discolored?” He answered: “Because I would speak during the time the congregation recited Vaychulu, and I did not recite it together with them. Also, because I would speak while the sheliach tzibur would recite the one blessing that encapsulates seven, and when he would say Yisgadal…until Amen. Yehei shmei rabba….and I did not focus on listening to him with concentrated intent.” Accordingly, one should be scrupulous [regarding these matters]”.
And elsewhere , the Alter Rebbe writes: “The mitzvah of Kaddish is to hear the sheliach tzibbur recite Yisgadal... and to answer Amen, yehei shmei rabba...to that statement, for Amen, yehei shmei rabba... is the response to Yisgadal.... One must listen to focus on [the phrase to which] he is responding …. One should not, however, say Amen, yehei shmei rabba... unless he can concentrate, so that he knows that he is responding to Kaddish …. Initially, however, when one can listen, one must listen and not rely on the possibility of concentrating later. People who converse while the sheliach tzibbur is reciting Kaddish should therefore be rebuked, even if there is a minyan of congregants listening attentively to the sheliach tzibbur without them. Suppose fewer than nine congregants are listening to the sheliach tzibbur. In that case, he should not recite Kaddish at all, for no davar shebikedushah may be recited in the presence of fewer than ten congregants, nine listening and one reciting….”
The implication is quite clear that one should be attentive and focused when Kaddish is being recited and certainly should not leave the Minyan.
סימן נה:ג
משנה מגילה כג:
סנהדרין לט. ועיין שוע"ר סימן נה:ה
עיין אשל אברהם (מבוטשאטש) סימן נה, שו"ת נודע ביהודה מהדו"ק אבהע"ז סימן נ"ו.
הגהות רעק"א לשו"ע סימן נה סעיף ג, א"א (בוטשאטש) מהדו"ת סימן נה סעיף ב, שו"ת הר צבי או"ח ח"א סימן נא.
עיין במקורות הנ"ל ובשו"ת קנין תורה חלק ב סימן קיא.
שו"ת קנין תורה שם, ברכת הבית שער מ"ב הלכה ו.
סימן רסח:יז
סימן נו:ד
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