בעיות הלכתיות עכשוויות, כרך א, חלק ראשון, פרק ב: שבת ומועדיםContemporary Halakhic Problems, Vol I, Part I, CHAPTER II Sabbath and Festivals

א׳

1The laws of the Sabbath are as mountains which hang by a hair; the verses are few, but the laws are many.

ב׳

2HAGIGAH 10a

ג׳

3The Hebrew term kedushah, usually translated as "sanctity" or "holiness," has as its root-meaning the connotation of separateness. That which is holy is separated from both the profane and the mundane. God is the epitome of kedushah because He is wholly transcendent and totally separated from the material universe.

ד׳

4Individuals may be sanctified by virture of a role or function which sets them apart from their fellow men. Such sanctification results from the renunciation of commonplace, mundane activities and the pursuit of matters of the spirit. Geographical sites may acquire sanctity by virtue of being removed from prosaic use and consecrated to sublime activity.

ה׳

5The sanctification of person and place is not unique to Judaism. Other creeds also profess the sanctity of persons and places. Judaism is unique in its teaching of a novel concept involving the sanctity of time. For Jews, the Sabbath is not simply a day of rest; it is not merely a day in which worldly cares are set aside. It is a day on which the Jew emulates the Deity.

ו׳

6The Mekhilta, Parashat Ki Tissa 1:5, teaches that one who observes the Sabbath testifies, by his very conduct, to the divine creation of the universe, while one who profanes the Sabbath denies the doctrine of creation. This is not simply an instance of midrashic hyperbole. Many scholars have pointed out that God and man are partners in the unfolding process of creation. During the six days of creation God created not only the kernel of wheat but also caused the wheat stalk to emerge from the ground fully grown. However, the wheat was not yet ready for human consumption. It had to be harvested, threshed, ground into flour, kneaded into dough, and baked in an oven. Yet God—Whose very name, Shaddai, our Sages tell us, means "I am He Who said to the world, 'Enough!' "— refused to allow these processes to unfold of their own accord. God created man and to him was given the task of completing the design of creation.

ז׳

7Man is bidden to emulate God in the task of creation. God created the universe during a period of six days and rested on the seventh; so, too, man is commanded to spend but six days in the completion of the human component in the creative process and to rest on the seventh. On the seventh day God's transcendence of the universe was complete; He abstained even from acts of creation. On the seventh day, man, too, is commanded to separate himself from the works of human creation, to withdraw from the world he has created for himself. In doing so man captures a measure of the transcendence and sanctity of the divine.

ח׳

8By its very nature, Sabbath observance bears witness to man's partnership with God in the process of creation and to man's trust in his divine partner. Preservation of the Sabbath has always required a high degree of faith. Throughout the ages, Jews suffered untold hardship and privation in order to keep the Sabbath holy. Their selfless devotion to the sanctity of the Sabbath gave eloquent testimony to the sovereignty of the Creator. The Mekhilta, Parashat Ki Tissa 1:11, points out that those mizvot which require sacrifice are never lost. The Sabbath is specifically enumerated as a commandment which requires considerable sacrifice but which, precisely for this reason, has never been lost to us.

ט׳

9The term "work," as applied to activities restricted on the Sabbath, has a highly technical meaning. It is not to be equated with labor or physical exertion. As has been shown by R. Abraham Samuel Sofer, R. Samson Raphael Hirsch and others, the activities banned on the Sabbath are those in which man completes the work of creation, those in which he takes the raw materials of the created universe and transforms them into finished products, implements or foodstuffs which he can enjoy. In refraining from creative activity man emulates the Creator, who desisted from further creation on the Sabbath day.

י׳

10Halakhically, "work" is defined as any of the procedures employed in the fashioning and erection of the Tabernacle in the wilderness. Exodus 35:1–3, which reiterates the prohibition against "work" on the Sabbath, forms a preamble to the directives governing the specifications for the construction of the Tabernacle and its utensils. The Sages comment that the juxtaposition of these scriptural sections teaches that Sabbath regulations are not suspended for the purpose of constructing the Tabernacle. "Work" which is forbidden on the Sabbath is then defined as the activities involved in the construction of the Tabernacle. These activities, thirty-nine broad categories in number, ranging from planting to baking, from shearing to tearing for purposes of sewing, from trapping animals to cutting their hides, as well as numerous derivatives, were enumerated, defined, and transmitted to Moses as part of the Oral Law. To this list were added rabbinic enactments prohibiting other activities. These rabbinic decrees were variously designed as "a bridge around the Law" or as a means of promoting the Sabbath spirit.

י״א

11Sale of Commercial Enterprises to Sabbath Violators

י״ב

12In one of the Halakhah-briefs published in the Tishri 5730 issue of Ha-Darom, Rabbi Nachum L. Rabinovitch, the principal of Jews' College in London, discusses a question which arises frequently in connection with commercial undertakings. The proprietor of an insurance firm found the volume of business too burdensome to handle personally, and therefore wished to sell his agency to a larger firm and accept employment as an insurance salesman with the purchasing company. The contemplated sale would involve transfer of the existing business to a Jewish firm whose business activities are openly conducted on the Sabbath.

י״ג

13The question poses two halakhic issues: (1) Is it permitted to sell or transfer a business undertaking with the knowledge that the purchaser will henceforth conduct the firm's commercial activities on the Sabbath? (2) Is the insurance agent, now to be employed by a Sabbath-violating firm, permitted to profit from the desecration of the Sabbath entailed by clerical work performed on his behalf and on behalf of his clients?

י״ד

14The second problem is readily resolved by Rabbi Rabinovitch by reference to a responsum of R. David Hoffmann, Melamed le-Ho'il, Oraḥ Hayyim, no. 40. R. Hoffmann states simply that the agent's profit in the form of a commission is paid solely for his efforts as a broker, and any activities on the part of those employing his services are in actuality conducted for their own convenience and benefit and not on behalf of the broker.

ט״ו

15The first issue, the basic question regarding the transfer of a commercial enterprise to Sabbath violators, is more involved and is a recurrent one in modem responsa literature. The earliest discussion of the subject appears to be that of the Melamed le-Ho'il, Oraḥ Hayyim, no. 34. The issue centers around the question of whether such action involves a transgression of the biblical injunction "Thou shalt not place a stumbling block before the blind" or of the rabbinic prohibition against "abetting evildoers." R. Hoffmann quotes R. Jacob Ettlinger, Binyan Ẓion, no. 15, to the effect that these categories apply only in cases where (1) transgression would be impossible without the aid of another person, (2) a request is made for aid with specific reference to a transgression, or (3) despite the absence of the above conditions, the aid rendered is nevertheless utilized for purposes of transgression. R. Hoffmann rules that, in the case at hand, the first two factors are totally absent, and since the aid rendered is not proximate to the transgression, there is no halakhic impediment to the sale. He cautions, however, that if the purchaser will henceforth conduct the affairs of the firm on the Sabbath, the firm's name should be changed. Responding to a similar query in an article published in three parts in the Iyar, Sivan and Tammuz issues of Ha-Pardes 5713, the late Rabbi Yechiel Ya'akov Weinberg reaches an identical conclusion. A précis of this responsum appears in Seridei Esh, II, no. 19.

ט״ז

16In this connection it should also be noted that Rabbi Moses Feinstein, Iggrot Mosheh, Oraḥ Hayyim, I, no. 67, addresses himself to the more limited question of selling a list of customers to a Sabbath violator. Despite the fact that the sales contacts can be made equally well on weekdays without desecration of the Sabbath, and hence there is no reason why this business should necessarily be transacted on the Sabbath, Rabbi Feinstein recommends that the sale be made to a Sabbath observer if this involves but a small loss. If the potential loss is great or if no other purchaser is to be found, Rabbi Feinstein regards the sale as being permissible.

י״ז

17Rabbi Rabinovitch treats the entire problem de nouveau and marshals evidence from various primary sources in sanctioning the proposed sale of the insurance firm in question to Sabbath violators. At the same time he emphasizes that all clients should be informed of the transfer and of the change in status of the former owner from proprietor to that of an employee of the new firm.

י״ח

18Sabbath Elevators

י״ט

19Automatic elevators designed for use on Shabbat were first introduced in the late 1950s. Such elevators are operated by means of a time-switch, which is set in advance so that no manual work is required on the Sabbath. The earliest halakhic discussion of the permissibility of the use of such elevators on the Sabbath is contained in an article by Rabbi Samuel Hubner, Ha-Darom, Nisan 5724. A further discussion, which raises a number of new points, appears in a contribution to the Iyar 5729 issue of Moriah.¹For further discussion of some problems attendant upon use of elevators on Shabbat see also R. Yitzchak Schmelkes, Bet Yiẓḥak, Yoreh De‘ah, II, Mafteḥot, no. 31; R. Eliezer Deutsch, Pri ha-Sadeh, IV, nos. 39 and 72; R. Ya‘akov Breish, Ḥelkat Ya‘akov, III, no. 137; R. Yitzchak Ya‘akov Weisz, Minḥat Yiẓḥak, III, 60 and IV, no. 25; R. Solomon Braun, She‘arim ha-Meẓuyanim be-Halaklah, II, 74:5; and R. Samuel Hubner, Ha-Darom, Tishri 5733. Rabbi E. Kugel, the coordinator of the Halakhah Department of the Institute for Science and Halakhah, reports on the research in this area carried out by members of this pioneering institute. Chief among the problems attendant upon Sabbath use of automatic elevators is the increased flow of electric current due to the added weight of passengers and the increased sparking which may occur with each stop of the elevator. A technical exposition of the factors responsible for these phenomena and the principles governing the operation of the automatic apparatus is detailed in the first bulletin of the institute, published in February, 1967.

כ׳

20Rabbi Kugel asserts that it is forbidden to cause an increase in the consumption of electric current because the generation of additional current causes enhanced conduction and results in raising the temperature of various mechanisms employed in the generation of electricity to the level of "cooking." Production of the current in itself may perhaps be forbidden as being encompassed by the rabbinic prohibition against creating new entities (molid) .²See also R. Moses Feinstein, Iggrot Mosheh, Oraḥ Ḥayyim, III, no. 55. Cf., however, R. Yosef Eliyahu Henkin, Edut le-Yisra’el, p. 121, and R. Ovadiah Yosef, Yabi‘a Omer, I, Oraḥ Ḥayyim, no. 19, sec. 18.

כ״א

21The question pondered by Rabbi Kugel is whether the passive activity of simply standing inside the elevator car, thereby permitting one's weight to cause additional flow of current, constitutes an "action" within the province of Sabbath regulations. The Gemara, Baba Kamma 10b, indicates that individuals seated upon a couch who fail to remove themselves when additional weight is placed upon the piece of furniture on which they are seated incur financial liability for any resultant damages. Since the original act of seating themselves on the couch caused no damage, the inference to be drawn is that one's mere presence and the effects caused by sheer weight are considered as "actions."

כ״ב

22The question as to whether sparks are to be deemed a form of "fire," or whether their transitory and ephemeral nature precludes their inclusion in this category, is the subject of long-standing dispute. Rabbi Kugel cites a long list of authorities who consider the production of sparks to be a biblical offense. The more permissive view expressed by some authorities is predicated upon the comments of the Pri Megadim, Oraḥ Hayyim 502:1. In a lengthy exposition and analysis of the views expressed by the Pri Megadim, Rabbi Kugel endeavors to show that these leniencies are based upon an erroneous interpretation resulting in a misunderstanding of the Pri Megadim's position regarding this question. Accordingly, Rabbi Kugel argues, the Pri Megadim concurs in the opinion that the causing of sparks is biblically forbidden and thus all subsequent lenient rulings in this matter are based upon an error of interpretation.

כ״ג

23Of particular interest is an item in the second bulletin of the Institute for Science and Halakhah, dated 1969, reporting that scientific research by members of the institute has resolved the theoretical difficulties which stood in the way of the development of sparkless relays and that a prototype of this device is now being developed. This project is specifically designed to overcome the halakhic questions surrounding the use of automatic elevators on the Sabbath.

כ״ד

24Erev Pesaḥ Which Occurs on Shabbat

כ״ה

25The vagaries of the lunar calendar are such that Erev Pesaḥ coincides with Shabbat infrequently but with a peculiar pattern. There are intervals of as long as twenty years during which Erev Pesaḥ does not occur on Shabbat, which are followed by the occurrence of Erev Pesaḥ on Shabbat two or, more usually, three times within a relatively short span of time, followed by a rather long interval in which Erev Pesaḥ fails to coincide with Shabbat. Thus, although Erev Pesaḥ did not occur on Shabbat between 1954 and 1974, Erev Pesaḥ will again coincide with Shabbat in both 1977 and 1981.

כ״ו

26The occurrence of Erev Pesaḥ on Shabbat gives rise to various complications with regard to the eating of ḥamez. (leaven) and its disposal, the proper method with regard to fulfilling the mizvah of the Sabbath repasts, etc.

כ״ז

27There are a number of booklets and compendia designed to deal specifically with the laws of Erev Pesaḥ which occurs on Shabbat. Of greatest significance is Hok le-Yisra'el, authored by the late Rabbi Israel Veltz, formerly Rosh Bet Din of Budapest. A section devoted to this topic is included in the fourth edition of Rabbi Moshe Sternbuch's commentary on the Passover Haggadah, Mo'adim u-Zemanim (Jerusalem, 5734), and was also published as a separate pamphlet. Another useful work is the recently published Erev Pesaḥ she-Hal be-Shabbat (B'nei Brak, 5734), authored by Rabbi Zevi Cohen. English, Hebrew, and Yiddish versions of a booklet on this topic by Rabbi Simcha Weissman utilize a question and answer format for the presentation of these laws and regulations. A booklet by this writer discussing this subject was published under the aegis of the Bet Din of the Rabbinical Alliance of America.

כ״ח

28Housewives, quite naturally, would prefer not to have ḥamez in their kitchens and dining rooms so close to the Yom Tov. The need for having available both ḥamez and Passover foods and utensils makes an already trying period even more difficult. In addition to making household chores more complex, simultaneous preparation of both ḥamez and Passover meals leads to concern over possible intermingling of utensils and food.

כ״ט

29Shulḥan Arukh, Oraḥ Hayyim 444:4–6 states clearly that ḥamez may be eaten on Erev Pesaḥ which occurs on Shabbat provided that it is consumed during the period in which ḥamez may yet be eaten, i.e., before four hours of the day have elapsed. The "hour" for this purpose is not sixty minutes but is one-twelfth of the daylight hours. In order to determine the precise time for the eating of ḥamez, the length of the day between sunrise and sunset or, according to some authorities, between the appearance of the "morning star" and the emergence of stars at night, must be ascertained. This period is divided by twelve in order to determine the length of a single "hour" and then multiplied by four in order to determine how long after sunrise ḥamez may be eaten. Hamez which remains after the meal is completed cannot be burned on Shabbat. Small amounts of ḥamez which are left over may be given as a gift to a non-Jew, who may do with the ḥamez as he wishes (although it is forbidden specifically to instruct the non-Jew to remove the ḥamez from the premises), or may be covered with a pot or other utensil and nullified by means of the formula for bittul and burned after the Holy Day. Mishneh Berurah 444:21 also permits disposal of left-over ḥamez in the bathroom.

ל׳

30However, because of the difficulties attendant upon preparing for Passover under these circumstances, it has been suggested that when Erev Pesaḥ occurs on Shabbat, either ordinary mazah or egg mazah be used for the Friday evening and Shabbat morning meals. This would eliminate the problem of the disposal of left-over ḥamez and would also preclude the possibility of inadvertent mixture of foods and utensils. Although these proposals would greatly facilitate matters, each of them presents halakhic problems which merit detailed review.

ל״א

31I. Mazah on Erev Pesaḥ

ל״ב

32The question of whether or not it is permissible to eat ordinary Passover mazah on this Shabbat is discussed by the late Rabbi Moshe Rosen in an article which appeared in the Nisan 5714 issue of Ha-Pardes and was subsequently reprinted in a somewhat different form in his collected responsa, Nezer ha-Kodesh, no. 52.

ל״ג

33Rabbi Rosen rules against the use of mazah. He asserts that scrupulous avoidance of ḥamez on the day preceding Passover is tantamount to adding an additional day to that festival and constitutes a violation of the injunction, "You shall not add to the word which I command you" (Deut. 4:2). It would appear that the opposite conclusion might be deduced from Rosh Hashanah 28b and Eruvin 96a which indicate that sitting in a sukkah following the conclusion of the festival does not constitute a violation of this prohibition unless the individual has explicit intenton (kavanah) of fulfilling the commandment of dwelling in the sukkah. Rabbi Rosen, however, argues that we may not conclude that lack of such intention with regard to eating mazah is sufficient to obviate the transgression of "Thou shalt not add." It is forbidden to sit in the sukkah after the holiday only if there is specific intent to fulfill a commandment, because there is nothing in the act itself which indicates that it is being done for the purpose of a mizvah; the eating of mazah at both Sabbath meals coupled with scrupulous avoidance of ḥamez, argues Rabbi Rosen, is in itself an indication that one is observing that day as one of the days of Passover. Employing a similar rationale, an early authority, Mordekhai, rules that although one must eat in the sukkah on Shemini Azeret, one may not sleep in the sukkah on that day. Mordekhai maintains that while partaking of food in a boothlike structure is not out of the ordinary, it is unusual for a person to sleep in a sukkah other than on Sukkot. By sleeping in a sukkah the individual "appears to be adding" to the biblical requirement.

ל״ד

34An opposing point of view is expressed by Rabbi Moses Feinstein, Iggrot Mosheh, Oraḥ Hayyim, I, no. 155. Taking sharp issue with this conclusion, he points out that Ba'al ha-Ma'or, in his commentary to Pesaḥim 49a, and Maggid Mishneh, Hilkhot Hamez u-Mazah 3:3, both rule that in the situation in question it is permissible to eat regular mazah before noon. Rabbi Feinstein concludes that the transgression "Thou shalt not add" is not applicable unless there is specific intention of fulfilling the mizvah of eating mazah.

ל״ה

35Nevertheless, Rabbi Feinstein, in practice, rules against the eating of ordinary mazah for other reasons. The Gemara indicates that it is forbidden to partake of mazah on Erev Pesaḥ, likening the person who does so "to one who cohabits with his betrothed in the home of his father-in-law." In order to assure that the mazah eaten on the eve of Passover be eaten with relish, the Sages enacted a prohibition against eating mazah on Erev Pesaḥ. This pleasure would be considerably diminished had the taste of mazah been sampled earlier in the day. Some authorities, as earlier noted, are of the opinion that this prohibition is effective only from noon onward. Rabbi Feinstein, however, demonstrates that in terms of definitive halakhah, the prohibition against eating mazah on Erev Pesaḥ goes into effect at daybreak rather than at noon. He also cites and affirms the view of Magen Avraham 471 :6, who maintains that mazah is forbidden not only on the day before Pesaḥ but the entire preceding evening as well. Hence, in the opinion of Rabbi Feinstein, ordinary mazah should be used neither for the Shabbat morning meal nor for the meal on Friday evening.³Cf. Le-Torah ve-Hora’ah, no. 3 (Winter 5734), p. 21.

ל״ו

36II. Egg Mazah on Erev Pesaḥ

ל״ז

37Rabbi Feinstein does, however, permit the use of egg mazah on Friday evening and early in the day on the Sabbath morning. Citing Bet Yosef, Oraḥ Hayyim 444, Rabbi Feinstein indicates that the use of egg mazah is the optimum method of avoiding all difficulties. Even though egg mazah is usually deemed to be in the category of cake rather than bread, when it is used for the Shabbat meals one must wash, pronounce the blessing for bread, and recite the grace after meals. Egg mazah, declares Rabbi Feinstein, acquires the status of bread by virtue of being used in place of bread for the Sabbath meal.⁴Cf. Sha‘arei Teshuvah, Oraḥ Ḥayyim, 168:9 and R. Feinstein’s novel interpretation of the authorities cited. See also Sha‘arei Teshuvah, Oraḥ Ḥayyim 639:2; Teshuvot ha-Ridbaz, I, no. 489; R. S. Hubner, Ha-Darom, Nisan 5734; and R. M. Feinstein, Le-Torah ve-Hora’ah, no. 3, p. 7.

ל״ח

38Rabbi Feinstein cautions that when egg mazah is used for the morning meal, this repast must be completed early in the day before the time during which ḥamez may be consumed has elapsed. He points out that such procedure is necessary because Rema, Oraḥ Hayyim 462:4, records that use of egg mazah is to be restricted to the sick and the elderly who are incapable of chewing ordinary mazah. All others are not permitted to partake of egg mazah during Pesaḥ or on Erev Pesaḥ after the fourth hour (Rema, Oraḥ Hayyim 444:1). The requirement that egg mazah be eaten early in the day necessitates that the Shabbat services be held at an early hour in order to afford sufficient time for the Sabbath meal to be completed before the time has elapsed during which ḥamez may be eaten. Not cited by Rabbi Feinstein is the divergent opinion of Arukh ha-Shulḥan 444:5, who offers a different interpretation of Rema 444:1 and permits the use of egg mazah later in the day as well.⁵See also Shulḥan Arukh ha-Rav, Oraḥ Ḥayyim 444:2-3; Noda bi-Yehudah, I, Oraḥ Ḥayyim, no. 21; and R. Moshe Binyamin Tomashoff, Avnei Shoham, III, no. 11. It should be noted that R. Feinstein’s interpretation of Rema is consistent with the opinion of R. Akiva Eger as contained in a gloss on R. Ya‘akov Emden’s Derekh ha-Ḥayyim published in Siddur Oẓar Yisra’el, II, 958.

ל״ט

39In opposition to this view, Rabbi Rosen objects to any use of egg mazah on Erev Pesaḥ Halakhah stipulates that only such mazah which may be used for the fulfillment of the mizvah of eating mazah on Passover eve may not be eaten on Erev Pesaḥ; those who permit the eating of egg mazah on Erev Pesaḥ do so because they maintain that egg mazah cannot be used for the fulfillment of the mizvah on Passover eve. Rabbi Rosen cites the opinion recorded in the Palestinian Talmud, Pesaḥim 2:4, which maintain that mazah kneaded with liquids other than water may also be utilized on Passover eve. Furthermore, Rambam, Hilkhot Hamez u-Mazah 6:5, rules that only mazah kneaded with wine, oil or milk may not be used on Passover eve. Mazah kneaded with eggs or fruit juice may, in Rambam's opinion, be used for fulfillment of the mizvah of eating mazah on the first night of Passover. Rabbi Rosen, therefore, rules that in accordance with these opinions, it would be forbidden to eat egg mazah on Erev Pesaḥ.

מ׳

40III. Mukzah

מ״א

41Another interesting point with regard to the laws of Erev Pesaḥ which occurs on Shabbat was raised by the late Rabbi Jacob Meskin in an article which appeared in the Nisan 5710 issue of Ha-Pardes. Food which may not be eaten on Shabbat is deemed mukzah and may not be carried or moved from place to place on the Sabbath. Thus, after the fourth hour of Erev Pesaḥ which occurs on Shabbat, ḥamez is to be considered mukzah. The ḥamez must be covered by a utensil or other covering and may not be moved. Pri Megadim, Eshel Avraham 444:1, declares that since mazah may not be eaten on Erev Pesaḥ, the mazah must be deemed to be mukzah on Shabbat and may not be moved. Rabbi Meskin cites this authority and in accordance with this decision rules that Passover mazah should not be touched on Shabbat which coincides with Erev Pesaḥ. This decision is apparently contrary to that of Hazon Ish, Iggrot Hazon Ish, I, no. 188, who advised that a well-wrapped mazah be placed near the ḥallah for purposes of leḥem mishneh.⁶See also R. Sternbuch, Erev Peraḥ she-Ḥal be-Shabbat, p. 5, note 5; R. Veltz, Ḥok le-Yisra’el, pp. 126–28; and R. Cohen, Erev Pesaḥ she-Ḥal be-Shabbat, pp. 44–45.

מ״ב

42Sale of Hamez by Tourists

מ״ג

43The seven-hour time difference between the Eastern seaboard and Israel (which is reduced to six hours when daylight saving time is in effect) poses a problem with regard to the sale of ḥamez by the constantly increasing number of American Jews who seek to spend the Passover holiday in the Holy Land. Due to the time difference, both the commencement of the festival and the prohibition with regard to the retention of proprietary interest in ḥamez on the day preceding the festival occur many hours earlier than in the tourists' cities of origin.

מ״ד

44A tourist finding himself in Israel, but whose possessions are in the United States, is confronted by a halakhic problem with regard to the disposal of his ḥamez. Is the prohibition with regard to the ownership of ḥamez a prohibition entirely contingent upon the locale in which the proprietor finds himself, i.e., the individual is forbidden to own ḥamez regardless of where such ḥamez may be during the period of time which he observes as Pesaḥ, or is the prohibition predicated upon the location of the ḥamez, banning the possession of ḥamez (regardless of where its owner may find himself) throughout the period of time during which Pesaḥ is observed in the locale in which the ḥamez is found? For the tourist finding himself in Israel, it is Pesaḥ a full seven hours before it becomes Pesaḥ in America, where his ḥamez is stored. If he is forbidden to own any ḥamez, regardless of its location, during the period that he observes as Pesaḥ, then it is incumbent upon him to dispose of his ḥamez in America a full seven hours prior to the time at which Jews in America are obligated to dispose of their ḥamez. A detailed analysis of this topic is to be found in Rabbi Moses Sternbuch's Mo'adim u-Zemanim, III, no. 269, sec. 4.^6aSee also Ḥesed le-Avraham, Oraḥ Ḥayyim, no. 35; R. Yitzchak Liebes, No‘am (5729), XII; and R. Yeshayahu Epstein, No‘am (5732), XV. Various opinions with regard to this question are quoted by She'arim he-Mezuyanim be-Halakhah 113:1. Rabbinic authorities usually advise that care must be taken on both counts; no ḥamez should be owned by a Jew during the period which he observes as Pesaḥ (regardless of where the ḥamez may be found) and no ḥamez should be owned by a Jew during the period observed as Pesaḥ in the locale in which the ḥamez is stored.

מ״ה

45In the normal course of events, a rabbi is authorized by his congregants to serve as an agent for the sale of ḥamez to a non-Jew. The rabbi then customarily disposes of the ḥamez on the day preceding Pesaḥ shortly before the hour at which ownership is forbidden. Hamez cannot be sold after the hour at which ownership is forbidden has passed. Thus the sale of ḥamez conducted by his local rabbi in the usual manner does not fulfill the needs of the tourist who spends Pesaḥ in Israel. In order to resolve the problem, the local rabbi may draw up a special bill of sale on behalf of his congregants in Israel and execute the transfer of their ḥamez at least seven hours prior to the specified time of sale in this country.

מ״ו

46Alternatively, the tourist may choose to avail himself of the services of an Israeli rabbi for the sale of ḥamez. Since the specified time of sale in Israel is at the earlier hour, this course obviates the need for a special bill of sale. However, the latter solution poses a problem with regard to the repurchase of ḥamez at the conclusion of the festival. If it is the case that the prohibition is contingent upon the location of the ḥamez rather than upon the place in which the owner finds himself, then the tourist is not permitted to regain title to his ḥamez until after Pesaḥ has drawn to a close in America, seven hours after the conclusion of the festival in Israel. Furthermore, since in Israel the final day of the holiday is not observed, conclusion of Pesaḥ occurs more than a day earlier than in America. Customarily, the rabbi repurchases the ḥamez immediately following the conclusion of the holiday. May an American tourist avail himself of the services of an Israeli rabbi who will repurchase the ḥamez at a time prior to the hour at which the tourist is permitted to regain possession of the ḥamez which is located in America?

מ״ז

47Rabbi Ephraim Yolles discusses this question in the Shevat-Adar 5733 issue of Ha-Ma'or and concludes that this practice is permissible. In the first place, Rabbi Yolles declares, one may assume that the Israeli rabbi stipulates that repossession of the ḥamez of his American clients should not become effective until after the conclusion of the festival in America. Moreover, citing Taz, Oraḥ Hayyim 448:6, Rabbi Yolles argues that such a stipulation, even if not expressly made, is a self-understood condition of the transaction. Secondly, the forms usually employed for the appointment of a rabbi as an agent for the sale of ḥamez do not expressly authorize him to repurchase the ḥamez. In the absence of such authorization, repurchase by the rabbi is not valid on behalf of his client unless it is in the latter's interest and meets with his approval. Since in the case at hand such repurchase is clearly not in the interest of the American tourist, the repurchase is not valid on his behalf. Thus, Rabbi Yolles concludes, there is no halakhic objection to the sale of a tourist's ḥamez by an Israeli rabbi. However, Rabbi Moses Feinstein's opinion, as cited in Le-Torah ve-Hora'ah, no. 1 (Chanukhah, 5735), pp. 14–15, is that the Israeli rabbi should repurchase the ḥamez of the tourist only after the eighth day of Pesaḥ has ended in America.

מ״ח

48Baby Formula on Passover

מ״ט

49In general, Halakhah requires that even infants not be fed any form of ḥamez (leaven) during the period of the Passover holiday. Problems arise in rare cases with regard to babies whose pediatricians have prescribed a specific formula containing an admixture of ḥamez and for whom, for medical reasons, it is not possible to substitute another. In light of the Gemara's declaration, Yevamot 114a, that depriving an infant of milk may endanger his life, there is no question that under such circumstances the child may be given the prescribed formula. However, apart from the prohibition against partaking of ḥamez, the very possession of such foodstuffs during Passover is forbidden. This prohibition is, of course, also suspended when danger to human life is involved, but only if no alternative can be devised. Is it possible for the parents, upon whom devolves the prohibition against owning ḥamez, to obviate transgression of this prohibition as it applies to the supplies of formula?

נ׳

50Magen Avraham, Oraḥ Hayyim 450:9 and 343:3, indicates that a child who must be fed ḥamez should be taken to the residence of a non-Jew and there be fed by the non-Jew, using the latter's own food. In the event that the child is too ill to be moved, Magen Avraham rules that the gentile may feed the child in the home of the parents, provided the food used in feeding the infant belongs to the gentile. The difficulties involved in such arrangements are obvious. Despite the attendant inconvenience, Rabbi Meir Goldberger, writing in the Nisan 5731 issue of Ha-Ma'or, states that no other procedure is permissible unless no gentile willing to perform this service can be found and lack of such food will result in actual danger to the child.

נ״א

51In an article appearing in the Adar 5731 issue of Ha-Pardes, Dr. Baruch Ness offers an interesting suggestion. The prohibition against possession of ḥamez during Passover applies only to ḥamez over which one enjoys proprietary ownership. Dr. Ness points out that it is possible to transfer ownership of the formula in question to the infant, who is of course a minor, thereby rendering the prohibition inoperative as far as the parents are concerned. Actual transfer of ownership can be accomplished by having an individual present a handkerchief (sudar) or other article of clothing to the father on behalf of the child in the presence of witnesses in exchange for the formula which thereby becomes the property of the child. Alternatively, this person may acquire title on behalf of the child by placing the formula in a container and lifting the container in his hands (hagbahah). It is further advised that the formula be placed in a particular closet, ownership of which is also transferred to the child by the act of sealing off the closet on behalf of the child, thereby transferring proprietorship of both the closet and its contents to the infant. The act of sealing the closet must also be done by an agent on behalf of the child, thereby effecting transfer of ownership from the father to the child.

נ״ב

52A Responsum from behind the Iron Curtain

נ״ג

53One of the most remarkable phenomena of our time is the extent to which Russian Jewry has succeeded in preserving its sense of identity despite decades of physical persecution and spiritual oppression. Fully cognizant of the deep meaning of the observance of mizvot, the Communist regime has persistently placed obstacle after obstacle in the path of its Jewish nationals seeking to discharge their religious obligations. However, Russian Jews, in large numbers and often at great self-sacrifice, refuse to succumb to oppressive measures designed to stifle all meaningful forms of religious expression. For reasons which are at once religious, psychological and symbolic, the baking of mazot for use on Passover has been a focal point of this struggle. Seemingly oblivious to the protestations and censure of democratic peoples throughout the world, the Soviet regime perennially seeks to hamper the preparation and distribution of mazot.

נ״ד

54Although the restrictions surrounding the provision of mazot have received widespread attention only in the past few years, such harrassment is not of recent vintage. In Or ha-Mizraḥ, Tammuz 5731, there appears a hitherto unpublished responsum which is of more than passing historical interest. The manuscript, dated 1929, was authored by Rabbi Moshe Terashansky, who at the time served as rabbi of Kremenchug, one of the most prominent Jewish communities in the Ukraine. Although written well over forty years ago, the responsum is a reflection of much of what transpires today. In this document, the writer openly and candidly refers to malevolent "adversaries" who sought to interfere with ritual slaughter and had attempted to close the local synagogue and, in particular, he inveighs against the vexing impediments encountered in the baking of mazot.

נ״ה

55The specific problem which Rabbi Terashansky discusses is the unavailability of flour ground in accordance with halakhic requirements. Wheat which comes into contact with any moisture may become ḥamez and hence unfit for use on Passover. Accordingly, Oraḥ Hayyim 453:4 stipulates that supervision must be provided at least during the grinding process in order to assure that the kernals do not become wet. Apparently, when this responsum was written it had already become impossible to arrange for such supervision in the U.S.S.R. Rabbi Terashansky's advice was sought with regard to the suggestion that, in light of the difficult circumstances, it might be possible to permit the use of ordinary flour even though the milling process then employed utilized water in separating the kernel from the husk. "Rinsing" of wheat for this purpose is permitted by the Gemara because the minimal contact with moisture entailed by this process, when properly performed, does not cause leavening. At a later period in Jewish history the practice was forbidden by the Ge'onim because they feared that knowledge of the precise nature of this art had become lost. Lack of expertise in the proper performance of this operation may readily cause the wheat to become ḥamez. The tentative proposal that this stringency be waived because of "dire necessity" is couched in poignant tones of anguish which cannot fail to arouse the reader's sympathy.

נ״ו

56Rabbi Terashanasky responds that the questioner has either been inadvertently misled or intentionally deceived with regard to the milling process actually in use. In point of fact, Rabbi Terashansky claims, the process in use at the time required soaking of the kernels for a matter of hours. This procedure would definitely have rendered the wheat unfit for Passover use under any circumstances. Rabbi Terashanasky adds that in his own community he had permitted the use of ordinary flour which had been ground in the surrounding villages without rabbinic supervision. Whereas commercial mills in the large cities employed more advanced methods necessitating soaking of the kernels, the villagers utilized a primitive, dry stone mill which would not, in the normal course of events, cause the grain or flour to become moist.

נ״ז

57Despite the pathos in this communication, which reverberates from across the years and from behind the iron barriers, there is an element in the exchange which is most heartening. The document stands as eloquent testimony to the indomitable spirit of Russian Jewry and as an assurance that, whatever the obstacles, there will always be Jews to ask, Jews to respond, Jews to observe—Jews to affirm, together with the Psalmist, "I shall not die, but I shall live and proclaim the works of the Lord." (Ps. 118:17).

נ״ח

58Shaving on the Intermediate Days of Festivals

נ״ט

59This topic has been exhaustively discussed in the responsa literature over a period of centuries. An article authored by Rabbi Aaron Pinchik containing a useful summary of some of the material appears in the Tishri 5729 issue of Or ha-Mizraḥ, the 5729 edition of No'am and the 5729 edition of Shanah be-Shanah. Both No'am and Shanah be-Shanah are publications of the Heichal Shlomo Institute, and Rabbi Pinchik serves as editor of the latter annual. The complexities of this question necessitate a somewhat fuller analysis of the sources.

ס׳

60The prohibition against cutting one's hair during the intermediate days of the festival is derived from Mo'ed Katan 13b. The Mishnah permits cutting of hair during the intermediate days only in certain enumerated instances in which proper grooming prior to the holiday was precluded by circumstances beyond one's control. The Gemara explains that under ordinary circumstances all persons are restricted with regard to hair-cutting lest they neglect to cut their hair prior to the holiday.

ס״א

61The formulation of this statement by the Gemara, "lest he enter into the festival with a neglected appearance," would seem to imply that the prohibition against cutting the hair is rabbinic in origin, the edict having been legislated in order to enhance the dignity of the holiday by assuring that hair would be properly cut prior to the commencement of the festival. Tosafot, however, are of the opinion that cutting of the hair constitutes an infraction of the biblical prohibition against "work" on the intermediate days of a festival. This position is adopted by Tosafot despite the general principle that "work" is permitted if directly connected with the holiday needs. Since a neat appearance is a holiday need, it would stand to reason that cutting of the hair be included in the category of such permitted activities. Nevertheless, the explanatory phrase "lest he enter into the festival with a neglected appearance" is interpreted by Tosafot as an explanation of why cutting the hair is not a permitted form of labor. According to this explanation, cutting the hair during the course of the festival itself cannot be deemed a holiday need because the hair should properly be cut prior to the holiday in honor of the oncoming festival. Therefore, in the opinion of Tosafot, cutting the hair during the intermediate days of the festival is biblically forbidden.

ס״ב

62One authority, Rabbenu Tam, cited in Tur, Oraḥ ḥayyim 531, maintains that the prohibition against cutting the hair is operative only if the hair has not been cut on the eve of the festival. Rabbenu Tam reasons that since the basis of the ban against this activity is "lest he enter into the festival with a neglected appearance," it follows that one who has not been remiss in this respect is not under restraint with regard to cutting the hair again on the intermediate days. Since Rabbenu Tam permits cutting the hair under these circumstances, it would appear that he does not consider this activity to be a form of "work" and hence deems the prohibition to be of rabbinic origin. Tur raises an objection against Rabbenu Tam's view on the basis of the previously cited Mishnah, Mo'ed Katan 13b, which specifically enumerates those exceptions where hair-cutting is permitted. According to Rabbenu Tam, there is yet another category of individuals permitted to cut their hair on the intermediate days of the festival—those who have already done so previously on the eve of the holiday. If so, queries Tur, why is this category not specifically included among those enumerated by the Mishnah? This question is particularly cogent since such an explanation is mentioned in a parallel case. Laundering is also forbidden on the intermediate days of the festival. In that case the Gemara, Mo'ed Katan 14a, specifically exempts an individual who has only one shirt because the garment, even if washed before the holiday, will again become soiled.

ס״ג

63R. Ezekiel Landau, in his responsa, Noda bi-Yehudah, Oraḥ Hayyim, I, no. 13, endeavors to reinterpret Rabbenu Tam's position in a way which reconciles the latter's views with those of the authorities who allegedly dispute his position. Accepting the previously quoted explanation of Tosafot, R.Landau explains that, according to Rabbenu Tam, hair-cutting constitutes forbidden "work" but, if not for rabbinic legislation, would be permissible by virtue of its necessity in fulfilling a holiday need. Rabbinic decree forbids what is otherwise permissible in order to promote cutting of hair prior to the festival "lest he enter into the festival with a neglected appearance." Once actually forbidden by the Sages, cutting of the hair can no longer be considered a holiday need and hence, in the final analysis, is included among the biblically forbidden categories of work. Noda bi-Yehudah adds that, according to Rabbenu Tam, if the hair has been cut immediately prior to the festival, there is no longer any need to cut the hair again during the festival because one who has indeed cut his hair prior to the festival does not require a second cutting within so short a period. For that individual, cutting of the hair cannot be deemed a holiday need. The result, Noda bi-Yehudah reasons, is that cutting of hair is prohibited to all individuals even according to Rabbenu Tam. Yet there is a crucial difference with regard to one who cut his hair prior to the holiday. If cutting the hair is prohibited only because of the "work" involved and not because of the superimposed rabbinic decree "lest he enter, etc.," the prohibition against cutting the hair will then be governed solely by the regulations applicable to work on the intermediate days. A poor laborer, lacking funds to buy provisions for the holiday, is permitted to perform such acts of "work" on the intermediate days of the festival. Hence it would be permissible to have a needy barber cut one's hair—but only if the hair has already been previously cut prior to the festival. If this was not done, the rabbinic edict "lest he enter into, etc.," becomes effective and cutting the hair is forbidden by rabbinic edict even in circumstances where "work" would otherwise be permitted. The explanation offered by Noda bi-Yehudah also resolves the previously mentioned difficulty raised by the Tur. Since, according to Noda bi-Yehudah, Rabbenu Tam intended to permit the cutting of hair for one who has already done so on the eve of the festival only through the employment of a needy barber, this category could not be included among those listed in the Mishnah because the ones so listed are not restricted in this manner. Noda bi-Yehudah maintains that there is complete unanimity of opinion between Rabbenu Tam and other authorities regarding the permissibility of hair-cutting and shaving by a needy barber if the client has also engaged in these preparations prior to the holiday.

ס״ד

64R. Landau's lenient ruling with regard to shaving apparently gained wide acceptance in his own city of Prague. In volume II, Oraḥ Hayyim, no. 101, Noda bi-Yehudah reports that he caused the Jewish barbers of his city to take a solemn oath not to shave their clients with a razor, as this is prohibited by Leviticus 21 :5. However, during the festivals many Jews, finding the Jewish barber shops closed, were wont surreptitiously to patronize gentile barbers. Of course these barbers did utilize razors as shaving implements. As documented in this responsum and in the one previous, no. 100, it was this breach in observance of Jewish law which Noda bi-Yehudah sought to repair by permitting Jewish barbers (at least those who were poor) to keep their establishments open during the intermediate days of the festival.

ס״ה

65Noda bi-Yehudah's reputation was such that this innovating decision had far-reaching repercussions. R. Saul Loewenstamm of Amsterdam, to whom responsum 101 of volume II was addressed, speaks of Noda bi-Yehudah as the "wonder of the generation," and appeals to him to "repair the breach in the fence of the vineyard" by retracting this lenient ruling. Another interlocutor, to whom Noda bi-Yehudah replies in II, no. 99, bemoans the latter's decision, arguing that it is unwise to publicize this ruling, for "particularly in a wanton generation such as ours is it to be feared that sinners will stumble in many other areas if they see a leniency contrary to the Shulḥan Arukh and all later authorities." Noda bi-Yehudah, replies that his decision was originally rendered some "twelve or fifteen" years earlier and that at the time he concealed his true reasons and informed the individual who had consulted him regarding this matter that the considerations prompting a permissive ruling applied solely to the one case which had been brought to his attention. Interestingly, Noda bi-Yehudah adds that the motive which prompted this circumspect attitude was not trepidation with regard to halakhic innovation, but recognition of the fact that in other cities many persons had adopted the practice of shaving with razors. Apparently, the same people who usually shaved with a razor refrained from shaving on the intermediate days of the festival. Rabbi Landau, knowing that if they were to shave on the festival they would do so with razors, wished to preserve them from this transgression, at least during these holiday periods. Noda bi-Yehudah adds that in preparing his manuscripts for publication his original intention had been to suppress the responsum in question, but that in reconsidering the matter he became determined to publicize this decision. In a very intriguing comment Noda bi-Yehudah adds that the reasons prompting this decision must remain "concealed in my heart." Surprisingly, in his comments on this statement of Noda bi-Yehudah, Rabbi Pinchik does not refer to Teshuvot Hatam Sofer, Oraḥ Hayyim, no. 144. In this responsum Rabbi Moses Sofer declares, "I am a talebearer and will reveal the secret," and proceeds to show precisely what line of reasoning it was that prompted Noda bi-Yehudah's decision, and at the same time Hatam Sofer indicates his own divergent view. Respecting Noda bi-Yehudah's desire that the explanation remain in pectore, we will not enter into detailed discussion of this controversy.

ס״ו

66Apart from this disagreement, Hatam Sofer takes issue with the main thesis of Noda bi-Yehudah's responsum. He quotes Binyan Ari'el, a commentary on Mo'ed Katan authored by R. Saul of Amsterdam, in disposing of the contention that shaving constitutes a forbidden form of "work." A similar prohibition against hair-cutting was placed on kohanim during their period of service in the Temple in order to prompt them to cut their hair prior to beginning their period of service. Rabbi Sofer argues that it would follow, on the basis of Noda bi-Yehudah's reasoning, that a kohen who did cut his hair immediately prior to his period of service should not be restricted in any way during his period of service. Considerations based upon prohibited "work" are not applicable in light of the fact that there was no restriction againt "work" placed upon kohanim performing the Temple service. Yet no exception from this ban is recorded in the case of a kohen who cuts his hair prior to beginning his period of service.

ס״ז

67Sedei Hemed, Ma'arekhet Hol ha-Mo'ed, cites sources which mention that at a subsequent date Noda bi-Yehudah retracted his lenient ruling. These claims are rejected as spurious by Sedei Hemed in light of the response printed in volume II of Noda bi-Yehudah. This volume was posthumously published by the author's son and it is unthinkable that the latter would have published as authoritative decisions and opinions which his father had retracted. Sedei Hemed does, however, cite a number of authorities in addition to Hatam Sofer who disagree with the lenient ruling of Noda bi-Yehudah.

ס״ח

68The problem regarding shaving the beard during the intermediate days of a festival is somewhat modified in our day by the fact that virtually all men who shave do so each day. One objection raised by the Tur against the view of Rabbenu Tam, who permits cutting of the hair by one who has already done so before the festival, is based upon Mo'ed Katan 14a. The Gemara declares that hair-cutting cannot be permitted on the festival itself even if there existed valid reason for not having cut the hair prior to the festival, e.g., preoccupation with seeking a lost object. The explanation given is that as long as one's personal preoccupation is not public knowledge onlookers will not be aware of such reasons and will themselves become lax in observance of this law. The objection advanced by the Tur is that even if the person has indeed cut his hair on the eve of the festival, this would be unknown to onlookers seeing him with hair fully cut on the intermediate days. Hence cutting of the hair should always be forbidden according to the grounds advanced in the above-mentioned talmudic citation.

ס״ט

69Rabbi Moses Feinstein, Iggrot Mosheh, Oraḥ Hayyim, I, no. 163, argues that in our times this objection does not apply since it is common knowledge that almost all men who do not sport beards shave daily and certainly shave on the eve of a festival. Therefore, in addition to the reasons advanced by Noda bi-Yehudah, there are yet other grounds upon which this practice may be permitted.

ע׳

70The other objection raised by the Tur, namely, that this exception to the general prohibition against cutting the hair on the intermediate days of a festival is not specifically mentioned in the Mishnah, is regarded by Rabbi Feinstein as presently inapplicable. A country or geographical area in which so large a number of people are habitually clean-shaven was unheard of in bygone days, and therefore there was no need to take such a situation into account. There remains, however, one possible objection. Both Noda bi-Yehudah and another source, Naḥal Eshkol, state that where shaving is not halakhically permitted such an act constitutes a form of "work" forbidden on the holiday. Although there would have been no reason for the Sages not to have permitted shaving in such circumstances as now prevail among most Jews, nevertheless this category did not present itself for their consideration, as can be inferred from the fact that no mention is made of an exception under conditions such as ours. If not specifically sanctioned, might not such acts be forbidden as a form of "work"? Rabbi Feinstein, disagreeing with these two authorities, argues that shaving constitutes one of the needs of the festival and cannot be banned as a form of "work." In a final observation, he adds that his practice is to permit shaving on the intermediate days of the festival only in cases of extreme need or great discomfort, but that no fault can be found with those who do so merely for purposes of a neat appearance.

ע״א

71Temporary Residents in Israel and Yom Tov Sheni

ע״ב

72What was once a novel and infrequent problem is at present a matter which affects countless thousands of travelers at one time or another. Today it is not at all rare for Jews from all corners of the globe to spend Yom Tov in Israel. Happily, it is also becoming increasingly common for students to devote a year to study in Israel. The magnetic attraction of Israel and of the Torah of Erez Yisra'el is such that this year is often extended to two or three. Visitors to Israel find themselves faced by the question of observing the second day of the holiday while their Israeli hosts do not. A somewhat more complex question is posed by students spending a prolonged period of time in Israel. At what point, if at all, are they absolved from observance of Yom Tov Sheni? In the Nisan 5731 issue of Or ha-Mizraḥ, Rabbi Judah Gershuni examines this old, if newly relevant, question and while not presenting any innovative opinion, assembles the various halakhic views regarding this matter.

ע״ג

73Although in terms of normative Halakhah tourists finding themselves in Israel over Yom Tov must observe the second day of the holiday as they do in their own homes, this practice is by no means universally agreed upon. Some of the divergent views which have been advanced are intriguing. One noted authority, R. Zevi Ashkenazi, Hakham Ẓevi, no. 167, declares that visitors to Israel are not required to observe the second day of the festivals and moreover, they are forbidden to do so. The argument for observance of the second day of Yom Tov in Israel is predicated upon the principle that a person away from home must continue to observe the more stringent practices of his place of domicile. However, observance of an extra day of Yom Tov, argues Hakham Ẓevi, involves a leniency no less than a stringency; observance of an additional day of Yom Tov is not permitted because it constitutes violation of the prohibition "Thou shalt not add thereto." On the basis of Rosh Hashanah 28b, numerous authorities conclude that, under certain conditions, sleeping in a sukkah on Shemini Azeret is an infraction of "Thou shalt not add to the word which I command you" (Deut. 4:2) and is a punishable offense.

ע״ד

74In support of this view, Rabbi Yechiel Michal Tucatzinsky, Sefer Erez Yisra'el, chap. 7, sec. 6, cites a further argument originally advanced by R. Shmuel Salant, the renowned nineteenth-century rabbinic personality who served as Chief Rabbi of Jerusalem for many decades. R. Shmuel Salant argued that, clearly, in days when the New Moon was proclaimed each month by the Bet Din, a visitor to Israel was exempt from observance of the second day of the festival. During that period anyone who was informed of the correct date had no need to observe the second day. The rabbinic decree accompanying the establishment of a fixed calendar was designed to preserve intact the situation which prevailed at that time with regard to Yom Tov Sheni. R. Shmuel Salant concludes that since in olden times visitors did not observe Yom Tov Sheni there is no reason for them to do so now.⁷See also Rabbi M. Lewittes, Ha-Darom, Nisan 5723. There is some question with regard to whether R. Salant actually permitted tourists to perform acts normally forbidden on the second day of the festival or whether his ruling was limited to a directive that they recite weekday prayers rather than those of the Holy Day.

ע״ה

75Normative Halakhah, however, follows the opinion of R. Joseph Karo, as recorded in his responsa collection, Avkat Rokhel, no. 26, and of Pe'at ha-Shulḥan, Hilkhot Erez Yisra'el 2:15, who maintain that tourists are indeed obliged to observe the second day of Yom Tov. A further discussion of the basis of this final determination has been presented in No'am (5719), II, by Rabbi Yisrael Ze'ev Minzberg and Rabbi Nachum Shechter.

ע״ו

76The problem with regard to students spending an extended period of time in Israel is somewhat more involved. Ordinarily, a person finding himself in Israel is deemed to be a resident of the Diaspora for purposes of Yom Tov Sheni unless he has no intention of returning to his original home. Similarly, a resident of Israel who leaves his homeland observes only one day of Yom Tov so long as he intends to return to Israel. R. Yechiel Michal Epstein, Arukh ha-Shulḥan 496:5, limits this period to one year. A person who does not plan to return to his home within a year is considered by Arukh ha-Shulḥan to be included in the category of those who have established residence in Israel. However, Rabbi Zevi Pesach Frank, Har Ẓevi, Oraḥ Hayyim, II, no. 78, notes that many Sephardic scholars disagree with Arukh ha-Shulḥan and rule that in light of the questionable nature of their status persons finding themselves in such a situation should adopt the stringencies of both Israel and the Diaspora, i.e., they are not permitted to perform actions forbidden on Yom Tov but must don tefillin and recite the weekday prayers.⁸See also Iggrot Mosheh, Oraḥ Ḥayyim, II, no. 101; R. Ovadiah Yosef, Or Torah, Iyar 5734, Moriah, Tevet 5735, and Yabi‘a Omer, VI, Oraḥ Ḥayyim, no. 40.

ע״ז

77Sha'arei Teshuvah, Hilkhot Yom Tov 496:3, cites authorities who maintain that unmarried students, regardless of the length of their stay, should follow the practice of residents of Israel. Since they have no family responsibilities and no place of employment, their place of study is considered to be their abode. Other authorities not cited by Rabbi Gershuni, among them Pri Hadash, Oraḥ Hayyim 468:4, and several commentaries on the Levush, Oraḥ Hayyim 496, declare that only those who plan to remain in Israel permanently may cease to observe Yom Tov Sheni.

ע״ח

78Yom Tov Sheni

ע״ט

79Abrogation of the second and last days of the various festivals was one of the earliest innovations of the German founders of the Reform movement. The primary contention advanced was that the observance of Yom Tov Sheni was an anachronism, having long since outlasted its original purpose. Historically, the institution of Yom Tov Sheni arose before holidays were observed on the basis of a permanently established calendar. The precise days on which festivals are to be observed depend upon the day proclaimed as Rosh Hodesh. Each month contains either twenty-nine or thirty days. In times gone by the Bet Din proclaimed the beginning of a new month on the basis of the testimony of witnesses who had actually sighted the new moon. The inauguration of a new month invariably took place on either the thirtieth or thirty-first day following the previous Rosh Hodesh. Thereafter messengers were dispatched to inform far-flung communities that a new month had begun. Communities too distant to be reached prior to the advent of the festival had no means of ascertaining whether the previous month was of twenty-nine or thirty days' duration. Thus they were always confronted by the possibility of an error of one day with regard to determination of the correct day of the month. Hence the observance of a second day was necessary in order to guarantee proper observance of the Holy Day. With the lapse of sanctification of the New Moon each month by an act of Bet Din, and the promulgation of a calendrical system by Hillel the Second, such errors can no longer occur. Since there is no longer any question with regard to the exact day of the month, runs the argument, there is no cogent reason for retaining the second day of Yom Tov. This contention was sharply rejected by nineteenth-century halakhic authorities, whose views were publicized in the periodical literature of the day. The halakhic ramifications of the issue are exhaustively discussed in Teshuvot ha-Ge'onim, no. 1, and by Rabbi Isaac Baer Bamberger, Yad ha-Levi, no. 99. ⁹See also Meshekh Ḥokhmah, Parashat Bo (Warsaw, 5644), pp. 47 f.; R. Ya‘akov Ettlinger, Shomer Zion ha-Ne’eman, no. 177; Iggrot Soferim, ed. Solomon Schreiber (Vienna, Budapest, 5693), sec. 2, no. 63, pp. 63–64; and R. Aaron David Deutsch, Goran David (Paks, 5645), no. 41.

פ׳

80Since 1933 repeated proposals have been made within the Conservative movement in this country to drop the observance of the second days of festivals. Recently the Law Committee of the Rabbinical Assembly, rather than either affirm the sanctity of Yom Tov Sheni or abrogate its observance, adopted the curious position that the observance of the second and last days of festivals is to be optional at the discretion of local congregations. The various "responsa," both pro and con, considered by this body have been published in the Winter 1970 issue of Conservative Judaism. A review of this material would not ordinarily be presented in these pages, particularly since a recent article, "The Second Days" by Rabbi Norman Lamm, Chavrusa, June 1969, contains an excellent formulation of the Orthodox response to the Conservative position.

פ״א

81We should, however, take note of two salient points which emerge from the discussions included in this issue of Conservative Judaism. First, attention should be drawn to the intense opposition to this innovation expressed by some members of the Law Committee and other Conservative leaders. It is heartening to observe that this opposition displays a sensitivity to, and an understanding of, basic Jewish spiritual values. Thus, a Conservative spokesman, arguing for the continued observance of Yom Tov Sheni, emphasizes the importance of preserving the centuries-old unity of Klal Yisra'el and shows a deep appreciation of the concept of galut and spiritual exile and of our consequent need for "a permanent reminder of the spiritual superiority of Erez Yisra'el in Jewish life" (p. 39). The same author incisively underscores the practical realities of Jewish religious life on this continent and asserts, "The formidable challenge we face is not to the second day of Yom Tov, but to the idea of holy days in general. In the struggle to maintain the second day we are fighting the battle of Yom Tov in the Diaspora" (p. 42).

פ״ב

82Secondly, it is one matter to bemoan the strictures of Halakhah as being excessively demanding or to advocate concessions to the spirit of the times. It is quite another thing to hallow the compromise by clothing it in the garb of normative Halakhah and to crown the results with the extravagant declaration that "the second day is halakhically indefensible" (p. 32). It is this conceit which provokes one to recoil with the feeling of "Ha-gam likhbosh et ha-malkah immi ba-bayit—Will he even force the queen before me in the house!" The discussion, which is presented in the framework of halakhic dialectic, makes use of invalid reasoning in order to substantiate false conclusions based upon erroneous premises and in so doing it becomes a travesty of the very process it seeks to employ. One or two examples will suffice.

פ״ג

83A brief paragraph on page 29 reads: "Actually the medieval Polish scholar, Moses Isserles, (sixteenth century) … pointed out that where the reason for an enactment (gezeirah) is no longer operative, the enactment itself is nullified. If this is true with a gezeirah it is even more so with a minhag, and Yom Tov Sheni is only a minhag, as Maimonides has made clear."

פ״ד

84Actually, Rambam states exactly the opposite and does so with the utmost clarity. In Hilkhot Kiddush ha-Hodesh 5:5, Rambam unequivocally terms Yom Tov Sheni a rabbinic edict. In specific reference to the observance of the second day he states, "however, it is an edict of the Sages [takkanat ḥakhamim] that they observe the custom of their fathers which is in their hands.¹⁰Similar unequivocal statements declaring Yom Tov Sheni to be an edict of the Sages are contained in the commentaries of Shitah Mekubeẓet, Beiẓah 4b and Ran, Sukkah 44b; see also the comments of the late Brisker Rav, Ḥidushei Maran Riz ha-Levi (Jerusalem, 5723), Hilkhot Berakhot 11:16. In the section immediately following Rambam reiterates, "Hence the second day of Yom Tov, which we observe in the Diaspora in our day, is mi-divrei soferim who ordained this." Every student of Rambam is well aware of his usage of the term divrei soferim as a synonym for "rabbinic decree."

פ״ה

85In support of the statement "where the reason for an enactment is no longer operative the enactment itself is nullified," the authors, in a footnote, give as their source Shulḥan Arukh, Oraḥ Hayyim 339:3. The citation as presented is misleading and incomplete. In the statement to which reference is made, the substantive reason given by Rema is based upon a totally different principle. The comment cited is carefully presented as "yesh omrim", a minority view listed only as a secondary consideration. Indeed, the preponderance of authoritative halakhic opinion is that rabbinic decrees remain in force until formally annulled by a Bet Din "greater in wisdom and number" even when the original considerations no longer apply. Furthermore, in instances—such as Yom Tov Sheni —where the enactment is for purposes of erecting "a fence around the Torah" in order to prevent transgression of a biblical prohibition, Rambam, Hilkhot Mamrim 2:3, declares that even if the original reasons are no longer valid the decree cannot be revoked even by a Bet Din "greater in wisdom and number."

פ״ו

86The authors' error is further compounded by their conclusion that "if this is true with a gezeirah it is even more so with a minhag …" It remains for a Reform spokesman, whose observations are included in the same publication, to note, "the fact that the second day is 'only' a minhag does not invalidate its religious significance. It may even enhance it" (p. 53). Apparently neither the authors nor the critic are aware of the provision of Yoreh De'ah 214:2 that if a practice be accepted as a "fence" to prevent transgression of a biblical ordinance it is to be deemed a vow of a category which, as stated in Yoreh De'ah 228:28, cannot be annulled. Hence a mere minhag under such circumstances acquires the status of an irrevocable vow. The manifold errors in this short paragraph call to mind the popular joke concerning the mispelling of the two-letter Hebrew word Noaḥ with seven mistakes.

פ״ז

87Elsewhere in the same paper we are informed: "the second day, unlike the first, has no inherent holiness, and our approach to it may take into consideration local needs, local custom and local sensitivity. This might almost lead to the inference that each congregation is talmudically entitled to deal with the second day of Yom Tov independently…." (p. 27).

פ״ח

88This remarkable conclusion is deduced from an incident recorded in Pesaḥim 51b. R. Safra, who, as Tosafot explains, lived in an area where only one day of Yom Tov was observed because it was accessible to messengers of the Bet Din was visiting in a locale which observed two days of Yom Tov. The Talmud establishes the principle that in such circumstances the visitor is obliged to observe two days in order to prevent quarrel and dissension. R. Safra asked a colleague whether he might work on the second day of Yom Tov in an uninhabited area where nobody could possibly witness his actions and hence there was no reason to fear that dissension might arise. The reply was in the affirmative. It is on the basis of this Gemara that we are told, "The obvious inference is that the second day, unlike the first, has no inherent holiness." That this conclusion is not at all "obvious" goes without saying. The fact that Yom Tov Sheni was ordained for the Diaspora, and not for the Land of Israel and its environs, certainly does not mean that "each congregation is talmudically entitled to deal with the second day of Yom Tov independently."

פ״ט

89That a halakhic framework be utilized to camouflage reforms which obviously run counter to the basic principles of that Halakhah is lamentable. That inaccurate scholarship and specious reasoning be employed in those endeavors is an affront to intellectual integrity.

צ׳

90We, of course, are certain that Yom Tov Sheni will not be abrogated before the ingathering of the exiles. It is perhaps reassuring to note that even the Messiah will fail to be impressed by the pilpulism of Conservative "halakhists." A short note in the Tammuz 5729 issue of Ha-Ma'or draws the reader's attention to a statement in the commentary of the Radbaz on Rambam's Hilkhot Nezirut 4:11 to the effect that the Messiah himself, while in the golah, will observe Yom Tov Sheni!¹¹See also Ḥatam Sofer, Beiẓah 4b.