Rosh Yeshivat Maharat

A Global Response to the Telephone

May 24, 2020 Rabbi Jeff Fox

Conclusion of the Yam ha-Gadol, Rabbi Yaakov Moshe Toledano, Cairo, 1941

In the 1930’s and early 40’s a group of poskim were addressing the question of using the telephone from every corner of the globe.

First we meet Rabbi Yaakov Moshe Toledano (wiki) from Cairo who published an important teshuva in this regard (ים הגדול סימן כט). He begins by pointing out that we should not think of the sound coming over the phone like אוב וידעוני, but that it really is the sound of the person on the other end of the line. He concludes, like Rabbi Litvin, that one can even fulfill the obligation of the Shofar over the phone.

Excerpt from Rabbi Aryeh Tzvi Frummer, Poland, 1938

Then, Rabbi Aryeh Tzvi Frummer (wiki) from Poland (שו”ת ארץ צבי ח”א סימן כג ,1938) distinguishes between the gramophone, which is recorded in advance, and the telephone which is the current voice of the person who is recited the beracha or the tefila. Since it is happening at the same time, the one at a distance can fulfill their obligation. He also emphasizes that a voice heard over a telephone should not be considered like the voice of אוב.

Finally, Rabbi Aaron Milevsky (wiki, in Hebrew), while serving as the Chief Rabbi of Montevideo, Uruguay also addressed this question (1941, שו”ת מנחת אהרון סימן יח). He, like Rav Kook and Rav Chaim Elazara Shapira, distinguished between Shofar and Tefila and decided to read the Megila on the radio. We will come back to Rav Milevski when we analyze Rav Uziel’s dissenting opinion.

The question asked of Rabbi Milevsky, Montivideo, 1941. Note: he actually read the Megilla on the radio.

These three gedolim from Poland, Cairo and Montivideo all understood that even someone at a great distance could fulfill an obligation for another. They all seem to think that the actual voice is being heard on the other end of the phone. They are not bothered by, or perhaps not interested in, the technical question of how the voice gets transmitted. It is not until Rav Shlomo Zalman that poskim begin to ask that question. Next time we will look at a fascinating teshuva by a key student of Rav Elazar Shapira who went even further than his Rebbe.

Shofar vs. Tefila: Rav Kook and Rav Chaim Elazar Shapira

May 17, 2020 Rabbi Jeff Fox

The next two significant poskim who addressed this issue were Rav Avraham Yitzchak haKohen Kook (1934 שו”ת אורח משפט אורח חיים סימן מח) z”l, and Rav Chaim Elazar Shapira (1930’s שו”ת מנחת אלעזר חלק ב סימן עב) z”l. These two great Rabbis had a huge influence on the Jewish community of the early 1900’s.

Rav Kook, trained in Volozhin and served the Lithuanian Jewish community until 1904 when he moved to Yaffo in Ottoman Palestine. He would eventually establish Yeshivat Mercaz ha-Rav and serve as the first Ashkenazi Chief Rabbi of Palestine beginning in 1921. Rav Kook passed away in 1935. Rav Chaim Elazar Shapira, a scion of the Spira family, served as the Rebbe in Munkatch from 1903 until his passing in 1937. Together, Rav Kook and the Munkatcher Rebbe wrote on every area of Jewish life, Jewish law and Jewish thought. …

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Using the Telephone to Fulfill Mitzvot – The First Teshuva?

May 10, 2020 Rabbi Jeff Fox

It appears that the first major posek to address the question of using the telephone to fulfill mitzvot at a distance was Rabbi Chaim Yehuda Leib Litvin (העילוי מסאָסני, who died in 1903, Brody) in a teshuva sent to the Rabbinic leadership of the German Jewish community of Frankfurt am Maine (with particular mention of his good friend יאקב פוזנא – not sure who that is and why his name is spelled with an א instead of an ע?) in August of 1885. This teshuva was printed in his שערי דעה תשובה עד.

His straightforward teshuva concluded with the following paragraph.

He believed that in an emergency situation (שעת הדחק) that everyone must agree that even the Shofar can be fulfilled over a telephone. His approach set the tone for the vast majority of Poskim (with the exception of Rav Uziel) until Rabbi Shlomo Zalman Auerbach published his response in 1948 (See מנחת שלמה חלק א סימן ט). Rav Shlomo Zalman made his name in part as an expert on the status of electricity and his authority in this area gave him the ability to shift the Halakhic discourse entirely. Over the next few essays, I would like to show an alternative mesorah to this question that may, sadly, be essential in the near future.

The Prohibition of Work/Melacha (2) – When?

April 15, 2020 Rabbi Jeff Fox

The prohibition on melacha is most severe during the first three days. The gemara says:

תלמוד בבלי מסכת מועד קטן דף כא עמוד ב
תנו רבנן אבל שלשה ימים הראשונים אסור במלאכה,
ואפילו עני המתפרנס מן הצדקה.
מכאן ואילך עושה בצינעא בתוך ביתו, האשה טווה בפלך בתוך ביתה.

Bavli, Moed Katan 21b
Our Rabbis have taught: A mourner is prohibited in melacha for the first three days, and even if he is a person who is supported by tzedaka. From that time and going forward, he can do melacha privately in his home and a woman can weave with the spindle.

The Rabbis here understand that the first three days are more stringent than the remaining four as related to the prohibition of melacha. They go so far as to demand that even a person who is unable to support themselves may not work. What is different about the first three days? …

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The Prohibition of Work/Melacha (1) – why?

April 8, 2020 Rabbi Jeff Fox

Let us begin with the prohibition of Melacha (Doing Work), מלאכה. The Gemara in Moed Katan says:

בבלי מועד קטן דף טו עמוד ב
אבל אסור בעשיית מלאכה,
דכתיב וְהָפַכְתִּי חַגֵּיכֶם לְאֵבֶל (עמוס ח:י)
מה חג אסור במלאכה, אף אבל אסור במלאכה.

Bavli, Moed Katan, 15b
A mourner is prohibited from work, as it is written ,
And I will transform your Holidays to mourning (Amos 8:10). Just as work is forbidden on the Holiday, so too a mourner may not work.

The gemara makes clear that melacha is prohibited and gives a Prophetic verse as a proof text; however, there is no reason given for this law, and the parameters of the prohibition remain unclear. This essay will address a potential reason for the prohibition of melacha, and the next installment will unpack some of the details.

There are three brief classic texts that serve as the basic understanding of why melacha ought to be forbidden¹. We will begin with a passage from the Ramban’s seminal work on mourning, Torah ha-Adam, that gives a simple reason for this prohibition.

רמב”ן, תורת האדם שער האבל – ענין האבלות (עמ’ קע, שעוועל)
…לא נאסרה אלא כדי שיתאבל על מתו ויתאונן על חטאיו

Ramban, Torat ha-Adam, Sha’ar ha-Avel, Inyan ha-Aveilut, bi-Melacha Keitzad (Page 170, Shavel ed.)

[Melacha] was only prohibited in order that he can mourn for the one who has passed and lament upon his sins.

As we mentioned before, there is a strain within Rabbinic theology that sees all loss and suffering as the result of punishment for sin. The Ramban here understands that the prohibition of melacha is meant to ensure that the mourner has the appropriate bandwidth to actually engage in the process of mourning.

Rabbi Mordechai Yaffeh, in his important code wrote:

לבוש יורה דעה סימן שפ סעיף ב
…עיקר טעם דאיסור מלאכה הוא כדי שלא יסיח דעתו מן האבלות

Levush, Yoreh Deah, 380:2

The essential reason for the prohibition of melacha is in order to not allow him to be distracted from the mourning.

The Levush here is trying to make sure that the mourner can focus and avoid distraction. This is a theme that we will see in many areas of the laws of mourning. Rabbi Yoel Sirkis, in his commentary on the Tur wrote:

ב”ח יורה דעה סימן שפ:ג ואפילו…
דעל ידי מלאכתו יהא טרוד ומתבטל מאבלותו וישכח רישו…

Bach, Yoreh Deah, 380:3 v’afilu
Through the engagement in melacha he will become overburdened and ignore his observance of mourning and forget his lowliness.

These three slightly different approaches to the reason for the prohibition of melacha are trying to communicate one core idea. The mourner is meant to be given both the physical and mental space to focus their attention on the emotional and religious experience of the loss.

The notion that the mourner deserves their own time to think seems like such an obvious goal that one wonders why it needs even to be stated². Part of the message of all of these specific Halakhot is that, while the goals of mourning are sometimes obvious and intuitive, how one quantifies particular behaviors to help evoke those experiences is not simple, obvious or identical for every person.

The Halakhic system gives directions and sets up limitations in many areas of our lives. I feel fundamentally claimed by the external authority of Halakha. And, at the very same time, I seek to make meaning out of the complex network of details that drive the Halakhic life. It is often the case that at a time of loss people crave rules. The rabbinic system can offer a great comfort to people who may feel that they have lost their way. The laws of Aveilut are an area of Halakha in which the meaning and explanations of the particular details often reflect a wider concern or value.

In our next installment, we will address one particular detail about the nature of the prohibition of melacha.

Introduction to the Prohibitions of the Mourner (3) – Moed Katan 21a

March 25, 2020 Rabbi Jeff Fox

The Bavli in Moed Katan preserves one more list of behaviors that are prohibited to the mourner. This list contains some of what appeared in the extended sugya on 14b-16a.

תלמוד בבלי מסכת מועד קטן דף כא עמוד א

תנו רבנן אלו דברים שאבל אסור בהן: אסור במלאכה וברחיצה ובסיכה ובתשמיש המטה ובנעילת הסנדל ואסור לקרות בתורה ובנביאים ובכתובים ולשנות במשנה במדרש ובהלכות ובתלמוד ובאגדות.

Bavli, Moed Katan 21a

Our Rabbis have taught: These are the behaviors that are prohibited to the mourner – [the mourner is] prohibited in melacha (work), washing, anointing, sexual intimacy, wearing leather shoes, and is prohibited from reading in the Torah, the Nevi’im and the Ketuvim, [and is prohibited from] learning in the Mishna, Midrash, Laws, in the Talmud and the Agadot¹.

What distinguishes this list of five (or six) prohibitions from the lengthy analysis on 14b-16a?

First, this list directly parallels the dinim of Yom Kippur²and Tisha b’Av³. Linking the experience of private mourning to that of national mourning (Tisha b’Av) is a powerful reminder that no one ever mourns alone. By paralleling Yom Kippur we again have an echo of the idea that mourning and loss come as the result of sin which demands atonement and repentance.

Second, Tosafot⁴on the page (s.v. elu devarim) claim that this list only contains actions from which the mourner is prohibited as opposed to behaviors that must be done.

The connection between the experience of mourning and Yom Kippur / Tisha b’Av is evocative. The prohibitions on Yom Kippur are called עינוים, innuyim refer to behaviors that are meant to make us feel physical discomfort. One of the more complex Halakhic questions that we are going to have to address is to what extent, if at all, those same behaviors during aveilut are meant to cause physical discomfort to the mourner. Is the point of mourning to give a structure to the expression of grief or to experience innuy? We will continue to return to this distinction as we work through some of the individual behaviors.

Note: This was written before we began sheltering in our homes. One of the core prohibitions during the week of shivva forbids leaving our home. In this difficult time, as many are sitting shivva for their loved ones, we are all struggling at home and praying for healing.

Introduction to the Prohibitions of the Mourner (2) – Moed Katan 14b to 16a, summary

March 18, 2020 Rabbi Jeff Fox

The gemara in Moed Katan (from 14b until 16a) addresses fourteen different behaviors that are either required or forbidden by a mourner: observance during a Holiday, haircuts, head-covering, wearing Tefillin, greeting, learning Torah, laundry, tearing garments, over-turning the bed, work, washing, wearing leather shoes, sexual intercourse and sending sacrifices to the Beit ha-Mikdash. The sugya is confident about the rules relating to the mourner and quotes a verse (or one berayta) to prove the rule. After clarifying the rule for a mourner, the sugya then seeks to understand how that same rule does or does not apply to one who has been excommunicated and a person with tzara’at¹.

Here is an example of that structure:

תלמוד בבלי מסכת מועד קטן דף יד עמוד ב

אבל אסור בתספורת מדקאמר להו רחמנא לבני אהרן (ויקרא י:ו) רָאשֵׁיכֶם אַל תִּפְרָעוּ

מכלל דכולי עלמא אסור (דף טו עמוד א).

מנודין ומצורעין מה הן בתספורת?

תא שמע מנודין ומצורעין אסורין לספר ולכבס…

Bavli, Moed Katan, 14b

A mourner is prohibited from cutting their hair, as the merciful one taught in the Torah to the children of Aharon, “Do not bare your heads” (Vayikra 10:6) –

from this we learn that everyone else is prohibited from cutting their hair.

Those who have been excommunicated and those with tzara’at – what is their rule regarding haircuts?

Come and hear: Those who have been excommunicated and those with tzara’at are prohibited from cutting their hair… …

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Introduction to the Prohibitions of the Mourner (1) – Moed Katan 14b to 16a

March 4, 2020 Rabbi Jeff Fox

We are now going to begin a lengthy series that addresses the various behaviors that a mourner may not engage in during shivva, shloshim and the 12 months. In some ways, this is the bread and butter of Hilkhot Aveilut, as many mourners’ questions involve these topics. As we will see, some of these prohibitions feel intuitive to us today while others speak less readily to the 21st century mourner.

I also want to emphasize the following point: people in Yeshivot often think about the laws of Aveilut as based heavily on minhag. While a few areas are, in fact, driven by long standing communal practice – particularly around matters relating to davening – the vast majority of this material functions as normative Rabbinic law.

Despite the fact one siman asks which aspects of Aveilut are from the Torah and which from the Rabbis, most of these laws are understood to be Rabbinic, with a few exceptions. However, there does appear to be more flexibility in the laws of Aveilut than we might typically expect to find. Nonetheless, we should not read that flexibility as meaning that these are “just” minhagim; instead, that flexibility reflects the Rabbinic understanding that these laws are meant to express and respond to a deep human need. …

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Onen (אונן) Between Death and Burial (04) – Understanding the Apparent Contradiction of the Shulchan Aruch

January 29, 2020 Rabbi Jeff Fox

Let us briefly review the three approaches to the nature of the exemption of the onen that are found in the Shulchan Aruch.

1) In Orach Chayyim 71:1, Rav Yosef Karo says that the onen is exempt and prohibited when directly involved with burial preparations. However, if there are people to care for the physical needs, we do not stop the onen from performing Mitzvot (“exempt but permitted”). This is the approach of R. Yitzchak quoted in Tosafot on the page (Berachot 23b s.v. v’ein mevarvhin alav and Or Zarua Section 2, Hilkhot Aveilut siman 417) as well as referred to by the Rosh (Berachot 3:1 & Moed Katan 3:54).

2) The first position brought anonymously in Yoreh Deah 341:1 is that the onen is exempt from all positive Mitzvot but is permitted to perform them. This is the opinion of Rashi (Berachot 17b s.v. vi-ein mevarech) and Rambam (Rambam Hilkhot Avel 4:6 and Hilkhot Kriyat Shema 4:7).

3) The second approach in Yoreh Deah 341:1, introduced with the phrase “יש אומרים – some say”, is that the onen is exempt and prohibited from performing all positive Mitzvot. This is the majority position of Tosafot (Berachot 17b s.v. vi-ein mevarech), Ra”ah (Berachot 16b s.v. mi she-meito mutal) Rosh (Berachot 3:1) and Talmidei Rabbeinu Yona (Rif, Berachot page 10b). …

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Onen (אונן) Between Death and Burial (03) – Unpacking the Shulchan Aruch

January 22, 2020 Rabbi Jeff Fox

We are faced with a complex passage of the Yerushalmi and a three way debate of the Medieval commentators regarding how to understand the exemption of the onen – exempt but permitted (פטור ומותר – Rashi & Rambam), exempt and prohibited (פטור ואסור – Tosafot, Ra”ah, Rosh, Rabbeinu Yona, based on the Yerushalmi) or it depends on the situation (R. Yitzchak, Rosh). Let’s see if we can make sense of two seifim of the Shulchan Aruch – one in the laws of mourning and one in the laws of Shema.

Here is how Rabbi Yosef Karo codifies this law in the context of the laws of mourning:

Shulchan Aruch, Yoreh Deah, Hil. Aveilut 351:1

[A] And the [onen] is exempt from all the [positive] Mitzvot of the Torah.

[B] And even if he does not need to be involved with the needs of the one who passed because there are others who will take care of those needs [he is exempt].

[C] And some people say that even if the onen wanted to be stringent on him or herself and make blessings or answer amen after the blessings of another, he is not permitted.

[D] (and see Orach Chayyim siman 71).

שולחן ערוך יורה דעה הלכות אבילות סימן שמא סעיף א

[א] ופטור מכל מצות האמורות בתורה.

[ב] ואפילו אם אינו צריך לעסוק בצרכי המת, כגון שיש לו אחרים שעוסקים בשבילו.

[ג] וי”א שאפילו אם ירצה להחמיר על עצמו לברך או לענות אמן אחר המברכין, אינו רשאי

[ד] (ועיין בא”ח סי’ ע”א).

In section [C], Rav Yosef Karo clearly refers to the position that the onen is exempt and forbidden from positive Mitzvot (Tosafot). When we read section [B] in light of section [C], it appears that the first anonymous position is that of Rashi and Rambam: that the onen is exempt and also permitted to fulfill positive commandments. This approach understands exemption and permission to apply whether or not the onen is required to be physically involved with the needs of one who has passed. To be clear, the implication of this reading is that even if the onen has no one to assist with the needs of the one who has passed, they are still permitted to fulfill Mitzvot if they are interested in doing so. …

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