Interesting Psak from Rav Elyashiv on Bedikas Chametz

I just saw in an interesting psak from Rav Elyashiv in his haggada and I subsequently found the same idea in his sefer "He'oros" on Pesachim. He says that the way we clean now-a-days where we spend anywhere from 20-30 days before Pesach cleaning our house fulfills the chiyuv bedika, l'chatchila. The only time Chazal required a candle is to look in the cracks and crevices. But for cleaning our fridges, closets, under the beds, cabinets etc, it is l'chatchila to clean the way we do it. Furthermore, he writes that if one cleaned their whoile house and there is no chametz in teh house it has a din of a mokom shein machnisin bo chametz and there is no chiyuv bedikah on the night of the 14th of Nisan. Taking it one step further, he says if after cleaning your house so there is no chametz, one were to do a bedika on the 14th and not put out 10 pieces of bread, the beracha would be a beracha l'vatala.

I saw in Halichos Shlomo that Rav Shlomo Zalman Aurbach zt"l argues on this last prat. He holds there would still be a chiyuv bedika even if you cleaned your house. However, it would seem that Rav Shlomo Zalman zt"l would be maskim that are cleaning definately helps. He says that you need to ask your wife about each spot if it was cleaned (did you chlean the fridge, the table etc) and then take a quick look to see if there are any pieces of chametz. In fact the Halichos Shlomo brings a ma'aseh that one year Rav Shlomo Zalman burnt his beard from the candle when checking under a bed. After that he had people help him. Presumably (at least the way I understand what Rav Shlomo Zalman is saying)  if one did not clean before hand you might need to do a more thourough bedika on the 14th.

Parshas Ki Tisa:Mumar L'Chilal Shabbos

The Tur in Even HaEzer brings the shitta of the Sefer HaIttur that if someone is amichalel Shabbos in public, then his kiddushin is not a kiddushin since he has the status of a non Jew. The m'kor for the Ittur is a possuk in this week's parsha "beini u'ben bnei yisroel os hi l'olam". If you don't keep Shabbos then you are not part of Yisroel.

There are 2 interesting shailos discussed in the poskim that are relevant to us. One is whether one can drink the wine touched by a michaleil Shabbos and the other shailah is whether one can cook on Yom Tov for a michaleil Shabbos (just like you can't cook for a non Jew on Yom Tov, you would not be able to cook for a michaleil Shabbos.

Chazon Ish

It should be noted that this whole discussion could be moot. That is because there is a shitta of the Chazon Ish that most non frum Jews today are in the catagory of a tinok she'nishba and would not be considered a michaleil SHabbos b'pharhesia. The Chazon Ish (Yora Deia Siman 1:6) writes that if someone would invest the appropriate hishtadlus necessary to convince a person to be frum, and that person would become frum then as long as there was no appropriate hishtadlus done, that non frum person is a tinok she'nishba. According to this Chazon Ish it would appear that the only question to be asked is what is called appropriate hishtadlus and for each person the answer would be different.

Status of Wine

Rav Tzvi Pesach Frank in the Har Tzvi discusses the status of the wine.  He writes that it is clear from a number of places (Teshuvos HaRashba, Rivash) that the wine of a michaleil Shabbos b'pharheisia is assur. He says some want to argue that the whole reason the wine of a non Jew who does not worship avoda zara is assur is because we are afraid if you drink their wine you will marry their daughters (mishum chasnus). However, there is no issur to marry teh daughter of a michaleil Shabbos. Therefore the wine should be muttar. The Har Tzvi rejects this and says once the gezeirah was made not to drink wine of a non Jew, we don't look at the reason. If a michaleil Shabbos has the din of a non Jew then his wine is assur even if his daughter would be muttar.

It seems that the Chazon Ish disagrees. In Yora Deia (2:28) he writes that since the reason of chasnus does not apply to a michaleil Shabbos, his wine is muttar. Furthermore, the Rambam doesn't mention it is assur and even the Rashba who holds it is assur doesn't bring a m'kor.

The L'horos Nosson (chelek 1 siman 39) and Tzitz Eliezer (chelek 8) also discuss this in relation to having non frum waiters at hotels. Are they allowed to serve wine? The L'horos Nosson mentions the sevara of the Chazon Ish but he says that the Rishonim are mefurash against the Chazon Ish. The Ramban in Chullin says that even though the daughters of a mumar is muttar. He also brings the Chasam Sofer that the wine is assur as a k'nas and not because of chasnus. Furthermore, the Chazon Ish himself in Yora Deia (49:7) paskens the wine of a michaleil shabbos is assur because of a knas, even though there is no issur chasnus.In the end, the L'horos Nosson  is meikel for several reasons a) they have a din of tinok shenishba like the Chazon Ish b) they would be embarrased to be m'chaleil shabbos in front of a talmid chacham and therefore it is not b'pharhesia  c)  the waiters don't actually touch the wine with their hands. The Tzitz Eliezer vehemently disagrees and he says they are not tinok shenishba and the heter of not  touching the wine does not apply here. He also quotes the sevara of the Har Tzvi as well.

Cooking on Yom Tov

Interestingly, while the Tzitz Eliezer is machmir by wine, he is meikil by cooking on Yom Tov. He writes that the only reason one can not cook for a non Jew is if you don't use the sevara of "Ho'il"-this sevara says I can cook on Yom Tov even though noone needs the food because maybe guests will come. However,m we do say this sevara. There is a tzad not to use "ho'il" beacause maybe you will cook non kosher food for teh non Jew and you coudn't argue you are cooking to feed guests. However, by a non frum Jew this chashash does not apply. At the end of the day he allows you to cook for a non frum Jew.

Dvar Torah on Purim based on a shiur from Rav Wolfson zt"l

This year instead of writng my own dvar torah for Purim, I decided to reproduce I shiur that I heard from Rav Wolfson t"l in 5764.  L'iluyei nishmaso here is the shiur.

I tried attaching the pdf file I sent out but it is too complictaed. If you want the pdf version (which is really the same thing here but I just used hebrew instead of english for some of the words) you can email me at cmarkowitz1@gmail.com

The gemara in Megilah 11b: explains that the reason Achashveirosh made a seudah was to celebrate the fact that Klal Yisroel had been in golus for 70 years and had still not been redeemed. Yirmiyahu had promised that the B’nei Yisroel would be in golus fro 70 years. Achashveirosh figured that the fact that the B’nei Yisroel were still in golus after 70 years must mean that HKBH had forgotten about them and they would no longer be redeemed. The gemara tells us that Achashveirosh miscalculated. We know that there were two stages of golus during the first Beis HamIkdahs. During the eigth year of Nevuchadnetzar’s reign he took Melech Yehoyachin and parts of Klal Yisroel into golus. Then 11 years later in his 19th year he took Melech Tzidkiyahu into golus and destroyed the Beis HaMikdash. Achashveirosh started counting the 70 years from the time of the first golus, when Yhoyachin went into golus. However, the gemara says, he should have started counting from the time that Yerushalaym was destroyed which was when Tzidkiyahu went into golus. The question that we can ask is what was Achashveirosh’s hava amina? Why did he initially think that the 70 years should start from the first golus, the golus of Yehoyachin. Furthermore, where did he go wrong? Why did the counting of the golus start from golus Tzidkiyau and not from golus Yochonya.?


The gemara in Makkos (22b) says “how foolish are people who stand for a sefer torah but do not stand for the talmidei chachamim who learn the Torah. In the Torah it says someone who is chayav malkos gets 40 lashes, and the chachamim came along and said it means 39 lashes” From here we see that talmidei chachamim are to be considered more chashuv than a sefer Torah. However, the Parashas Derachim (Derech tzadikim Derush 24) asks that we find the opposite idea in a gemara in Kiddushin.The gemara in Kiddushin (31b) asks, “how do we know one must stand for a sefer torah”? The gemara answers we learn it from a kal v’chomer, if one must stand for those who learn the Torah, than kal ‘chomer one must stand for a sefer torah itself. It would seem that this gemara implies that a sefer torah is greater than a talmid chacham ,which is the opposite from what the gemara in Makko implies. The Parashas Derachim answers that it all depends on what type of talmid Chacham we are talking about. If it is a Talmid Chacham that just has the yediyos of the whole Torah, then the Torah is bigger than him. After all, since his whole kovod comes because of his yediyas HaTorah, so the Torah itself should be greater. However, if the talmid chacham, besides knowing the torah is also a morah hora’ah, i.e. he knows how to pasken and explain the Torah, then he is considered bigger than a sefer torah. A talmid chacham who can look at the Torah and explain 40 lashes really means 39 lashes, this type of talmid chacham is bigger than the Torah.

Based on the Parshas Derachim we can now understand why Achashveirosh thought that the golus should start from golus Yehoyachin. The Navi tells us that among those who went into golus with Yehoyachin were the “charash u’masgeir”. Who were the “charash u’masgeir “? Chazal tell us that these were the talmidei chachamim and members of Sanhedrin who were sent to Bavel during the first wave of golus. Achashveirosh understood the power of the talmidei chachamim . He realized, as we see from the gemara in Kiddushin, that when the chachamim have the ability to pasken and explain the Torah, that they are greater than the Torah itself. It is for this reason that Achashveirosh thought that the golus of the chachamim, the first golus, was more tragic than the second golus, even though the second golus culminated with the destruction of the Beis HaMikdash. Therefore, it made sense to start the count of 70 years from the time the chachamim went into golus and not from when the Bayis was destroyed.

L’chorah, Achashveirosh’s cheshbon made sense. Why does the gemara say that he made the wrong calculation and he really should have started counting from the 2nd golus? What was his mistake? The answer is that at the end of Megillas Esther it says “Kimu V’Kiblu HaYehudim”. The gemara (Shabbos 88a) learns from here “Kimu mah sheh’kiblu kvar”-that B’nei Yisroel reaccepted the Torah that they had previously accepted at Har Sinai. In other words, there was another Kabbalas HaTorah during Yimei Purim. This teaches us that even in a time of golus, a time of hester panim it is still possible to have a kabbalas haTorah. The reason is that it is impossible for Torah to go into golus. Klal Yisroel can be in golus, but the Torah and by extension the Talmidei Chachamim who learn and teach the Torah, cannot be in golus. Wherever the chachamim are that is where the Torah is supposed to be. Based on this, it would then come out that the first golus of the talmidiei chachamim was not as bad as the 2nd golus because in essence the chachamim never went into golus. Therefore, the real golus only started from the golus of Tzidkiyahu and that’s when the seventy years should have been counted.



We can also add one more point. Yirmiyahu Hanavi in Eicha asks “Tivu B’Aretz Sh’areha”. The The Medrash Eichah explains that the gates of Yerushalayim were not destroyed because they showed kovod to the aron by opening their doors to allow the aron to come inside. Yirmiyahu was asking why is it that the gates of Yerushalayim were not destroyed because they showed kovod to the aron, while the talmidei chachamim who learn the Torah found in the aron were killed and sent into golus. The Parshas Derachim explains that the Medrash is referring to the Sanhedrin and takmidei chachamim who explain the Torah and pasken halacha. As we mentioned above, these talmidei chachamim are greater than the Torah and that is about whom Yirmiyahu was asking his question. The Parashas Derachim says that Yirmiyahu could not answer his question. However, perhaps we can answer based on what we said above. The golus took place before the zman of Purim of “kimu v’kiblu”. Therefore, the ma’aleh of chachamim who were mora hora’ah being greater than Torah did not exist. It was only after the zman of Purim did we have this ma’aleh.

Taanis Esther vs Tisha B'Av: Which one is more chamur?

If you ask most people they will tell you that Ta'anis Esther is much more lenient than Tisha B'Av. After all, Tisha B'Av has the 5 restrictions and the Rema paskens that pregnant and nursing women don't have to fast on Ta'anis Esther. However, it is not so simple.

There is a machlokes Rishonim what the m'kor is for Ta'anis Esther. Some say it is a minhag patterned after the 3 fasts that Esther and Mordechai imposed on B'nei Yisroel before she met the king. However, the Ra'avad brought by the Ran in Ta'anis Perek 2 learns it from the posuk "divreio tzomos v'za'akasom". The Ra'avad is understood to mean that Ta'anis Esther has the status of Divrei Kabbala, just like the mitzvos of Purim.

The question is, what is the status of Ta'anis Esther when it is a nidche. The Avnei Nezer writes that the status of Divrei Kabbala only applies to 13th of Adar. When the fast is pushed back to Thursday, the 11th of Adar, it is a regular takana d'rabanan. The Avnei Nezer clearly understands that a ta'anis nidcheh is a different takana and is not tashluimin for the original fast. The Shvus Ya'akov disagrees and says just like we darshen "z'manim tuva"  tolearn you can lein the megilla on the 11th thru 15th of Adar, we also use the drasha to tell us Ta'anis Esther can be the 11th of Adar m'divrei kabbalah. One could argue, that the Shevus Yaakov agrees with the Avnei Nezer in principle that that a ta'anis nidcheh is a different takana and is not tashluimin for the original fast. However, by Ta'anis Esther we have a drasha telling us the nidche fast is included in the divrei kabbalah. However, by other fast days-like Tisha B'Av, he would agree it is a lesser status than the original fast.

The halacha is that a Ba'al Bris can eat when Tisha B'av is nidcheh. How about on Ta'anis Esther? According to teh Shvus Yaakov one could argue that Ta'anis Esther that is nidcheh is still divrei kabbala and a Ba'al Bris could not eat unlike Tisha B'Av nidcheh which is a lesser status than the original day.

Baruch Dayan Emes.

The great talmid chacham, dayan and poseik HaRav HaGaon Rav Issur Wolfson zt"l was niftar this past Friday night. I generally try to avoid writing personal topics on my blog, but in this case I feel I must make in exception. It is a tragedy to his family (his 2 youngest sons are not even Bar Mitzvah), to our community of Passaic and to Klal Yisroel. We lost a giant today, and I feel it is only proper to mention a little about him. It is not an exaggeration to say that he literally had kol hatorah kulo at his fingertips. It wasn't just Chumash, Rashi, Ramban and Ohr HaChaim. It was Shas, Rishinim, Achronim , Shulchan Aruch and Psokim. It was Yerushalmi, Medrash and Zohar. Mussar Seforim, machshava seforim, and everything in between, both nigleh and nistar. I know after people die, the maspidim like to exaggerate. I can guarantee you that when I say he knew kol hatorah, both nigleh and nistar that it is not an exaggeration. A friend of mine used to learn with him once a week, and he told me that a number of times they would come across a medrash and Rav Issur zt"l would say, I never heard of that medrash. He didn't mean that the medrash exists just he hadn't learned it yet. What he meant was that we don't have that Medrash- it is not found anywhere in our editions at all. As more than one of the maspidim said at the levaya, he was a walking sefer torah. Someone who lived and breathed Torah. When he would walk in the street you could tell his mind wasn't in this world, but rather he was absorbed in whatever sugyah he was learning.

I was zocheh to have a personal kesher with Rav Issur zt"l and I just want to share a few points so that others might appreciate what we lost.

My connection to Rav Issur zt"l started about 8 years ago, shortly after I had moved to Passaic. He started giving chumash shiurim, and I was zocheh to be one of those that attended the shiurim. He gave these shiurim for 3 years and for the last 1.5 years I was the only one going. He would come into the shul , I would take out my notebook and tape recorder and he would say the shiur. I asked him a few times if he wanted to stop giving the shiurim, and he told me that as long as one person comes it is k'dai to continue. Although he only spoke for 30-35 minutes at a time, he was able to pack so much into each shiur, that to properly explain each shiur could take a couple of hours. He would weave together gemaras and medrashim along with a zohar or a GRA and sometimes even a Ramban to come up with unique and creative insights into the parshah. On more than one occasion he even made diyukim in some of the piyutim that we say in davening. Many of us don't even say the piyutim and even if we say them, we have no idea what they mean. Rav Issur zt"l not only knew them and understood them but he was even able to darshen them!

Besides his gaoness in Torah, he was a gaon in anivus. I believe it was Rav Meir Stern the Rosh Yeshiva of Passaic, who said over that it wasn't pshat that he was a gaon in Torah and also an anav. But rather his anivus was part and parcel of his gadlus. I would venture to say that 80% of Passaic either never heard of him or did not fully appreciate who he was. On the one hand this is a crying shame. On the other hand this is a perfect reflection of who he was-a gaon in anava who had not the slightest interest in being famous. I personally experienced this many times when I would ask him a shailah. I still remember I was once walking with him in the street and I asked him a shailah. He told me that he once answered a shailah in the street and he realized afterward that he made a mistake. From then on he decided not to answer a question in the street. I can guarantee you that he knew the answer. But his anivus would not let him answer me right away. Most of the time I asked him a shailah he would tell me to bring him a shulchan aruch or a mishna berura. Without missing a beat he would open to the page and tell me the answer. He didn't need the sefer to answer the question. He needed the sefer to protect his anivus. His son in law mentioned that everyone knew you could ask him where to find any gemara in Shas. However, when he would answer you he would always tell you it could be found 2-3 blatt away from the right daf. He didn't want to come across as a ba'al gava'ah.

I once saw an interesting idea from Rav Yaakov Hillel. He writes that most people think a tzaddik nistar is someone who looks pashut and simple but is really a tzaddik. This is wrong. Rav Hillel writes that a tzaddik nistar is someone like Rav Shach zt"l. How could this be? We all know what a great gaon Rav Shach was. The answer is that a tzaddik nistar is someone who even though you think you know his gadlus, there is ten times more you don't know about. As much as you think you know him, you really don't. In my mind, Rav Issur was a tzaddik nistar. For all that we knew about him, there was so much more that he kept hidden and private.

We lost so much with his petirah. In my mind it is like a spiritual 9/11. Who knows how much beracha and shemirah he was providing to Passaic and Klal Yisroel. We have now lost it. Rav Meir Stern summed it up so succinctly when he said that it is incumbent on all of us to make up for the loss of his Torah. He was such a giant that it seems almost impossible . HKBH should grant a nechama to his family, to his community and to Klal Yisroel.

Parshas Yisro:Zachor V'Shonar_Trei Kalei Lo Mishtamai

I haven't posted in awhile so I thought I would put something up before Shabbos.

Last week I discussed the issue of trei kalei lo mishtamai. The gemara learns it out from the fact that zachor and shamor were said at the same time and this is called a neis because it is impossible to hear 2 things at once. The gemara says the only exception is where you ar ehearing something that is chaviv like megilla or tekias shofar. There is a machlokes Rishonim why chaviv works. The Ritva says you are able to concentrate on one voice. The Ran says you hear both voices but you can understand both of them. A nafka mina is found in the Biur Halacha in Hilchos Shofar. If you hear 3 kolos from 3 people at the same time have you heard 3 kolos or 9 kolos? According  to the Ritva we would say you only heard 3 but according to teh RAn you could say you heard all 9. The Mishna Brerura  is machmir like the Ritva.

I famous issue that comes up based on this rule is how many people should say kaddish at one time. The Binyan Tzion and Chasam Sofer felt only one person should say kaddish because of trei kalei lo mishtamai. The Chasam Sofer held the point of saying kaddish was that it was a zechus for the niftar to have so many people answering amein. Since it is an issue of hearing kaddish the klal of trei kalei lo mishtamai applies here. Rav Ya'akov Emden in his siddur brings the minhag of sefardim to have everyone say kaddish. The Binyan Tzion argues that since sefardim daven togetehr it is easy to hear what everyone is saying and the rule of trei kalei lo mishtamai would not apply. Ashkinazim are not so unified and if everyone would say kaddish you wouldn't be able to understand anyone.

One could also argue that the ma'aleh of kaddish is in saying the tefilla regardless if people hear it so again the rule of trei kalei lo mishtamai wouldn't apply.

The Tzitz Eliezer seems to like the minhag of one person saying kaddish but he won't say it is wrong to do otherwise. Other poskim suggest everyone saying kaddish come to one area to minimize the problem.

Parshas Shemos:Shem HaMeforesh

HKBH tells Moshe "Zeh shimi l'olam v'zeh zichri l'dor dor". The gemara in Kiddushin learns from here that one must pronounce the shem havayah with the shem adnus. The Brisker Rav and Rav Moshe both have the following chakirah:

When one says the shem adnus are you really reading the shem havayah or are you reading a different name of HKBH.
This chakirah can also be asked by a regular kri u'kisiv. However, both the Griz and Rav Moshe point out that the halacha by the shem hameforash is not the same as a kri u'kisiv. It is a different halacha which applies anytime you say Hashem's name.
Both Rav Moshe and the Griz hold that you are really reading the shem havayah. However, by a regular kri u'ksiv they disagree. Rav Moshe holds you are reading the word that is written while the Griz (Griz al HaTorah Parshas Va'Eschanan) holds you are reading a different word.

Nafka Mina

1) If part of the shem hameforash is covered with wax do you need to take out another sefer torah. Rav Moshe writes that if you assume the shem adnus is a different name than the shem havayah so you can argue that you were never reading the shem from the klaf. It was always ba'al peh. Therefore, even if the word is covered by wax you can still read it. However, since we hold that by reading the shem adnus you are really reading the shem havayah, so you must get another sefer torah. (According to this l'fi the Griz by a regular kri u'ksiv you would not need another sefer torah)

2) The Rambam in Hil Avodah Zara 2:7 has 2 opinions if you are chayav misa for being m'kaleil with the shem adnus. The Brisker Rav (al HaRambam AZ 2:7) writes that it is toloi on the chakirah. If by saying the shem adnus you are really saying the shem havayah then you are chayav misa, but if it is a different name than you woul dnot be chayav.

3) The Mechabeir and GRA in Orach Chaim Siman 5 argue what kavanah you need to have when saying shem Hashem in davening/berachos. The Mechabeir holds you need kavanah for shem havayah and shem adnus. The GRA holds that you only need kavanah for shem adnus (except for Shema where you need both). Achronim explain the machlokes is based on the chakirah. The Mechabeir holds shem adnus is same as shem havayah so you need kavanah for both. The GRA holds the shem adnus us a separate name and all you need kavanah for is shem adnus.

Motherhood:Parturition or Gestation revisited

I just saw an article in the Jerusalem Post (hattip) that Rabbonim are now paskening motherhood follows the egg donor and not the one who gives birth. The article does not discuss what changed. See (here) for my original post.

Parshas VaYichi:Attempting To Do An Aveirah

This week I spoke about an interesting Ohr HaChaim. Yosef told his brothers not to worry about having sold him since in the end it all turned out for the best. The Ohr HaChaim writes that this is similar to someone who tries to poison another person and in the end mistakenly gives that person a cup of wine. Since in the end of the day nothing bad happened the attempted murderer is patur even from dinei shamayim.

The Kli Chemdah among others asks that this is against a gemara in Nazir 23a. The gemara says that if a woman becomes a nazir, and drinks wine not knowing that her husband had previously annulled her vow, that she is still chayav malkos m’d’rabanan. The gemara compares it to someone who eats a piece of meat thinking it is chazir and in the end it turns out to be kosher. We see from here that one is punished for bad intentions even if they did not lead to any aveirah.

The Kli Chemdah answers that there is a difference between aveiros Bein Adam L’Makom and Bein Adam L’Chaveiro. By Bein Adam L’Makom, HKBH knows your thoughts and it makes no difference if you only thought about the aveirah or you did the aveirah. Even though we say you are generally not punished for your thoughts that is only where no action occurred. However, here, since you did an action, albeit a muttar action, you are still punished. By Bein Adam L’Chaveiro, since people only know your deeds and not your thoughts you are not punished for your thoughts.

Another teretz is found in the Beis Yitzchak Siman 8. He says if the end result was a dvar mitzvah then you don’t get punished. But if the end result is a dvar reshus you are punished. He says there is a Ran in Shabbos like this. I did find a rayah to this idea in Shut Sharei Deia Siman 36. The gemra in Sanhedrin says the cemetery workers who bury the bodies on Yom Tov should not get punished because they are doing a mitzvah.

L’halacha the Pri Megadim discusses if a person who thinks he is eating treife and winds up eating kosher, is he posul l’eidus. According to the Rambam (Hilchos Nezirus), such a person should get malkos d’rabanan and therefore he should be posul l’eidus. He writes in Teivas Gema Parshas Mattos that it depends on why we give the malkos. Rashi in Nazir says it is only l’migdar milsa so you would not be posul l’eidus. The Rambam implies it is to punish you for attempting to do an aveirah. In that case you would be pasul l’eidus. Tosafos holds like the Rambam in terms of why we would give malkos, but paskens we don’t give malkos in this case. According to both rashi and Tosafos you would not be pasul l’eidus although for different reasons.

Yosef's Shtar Kiddushin

Rashi quotes the medrash that when Ya'akov saw Ephraim and Menashe he initially refused to give them a beracha because he didn't know who their mother was. It was only after Yosef showed Ya'akov his shtar kedushin and kesuva that Ya'akov agreed to bless them.

Two questions come to mind. First of all, what was bothering Ya'akov? Was he really concerned with who Yosef married? Shimon married someone fron Cana'an according to one pshat and Yehuda eventually married Tamar who did not have a great lineage. Furthermore, if Osnas was Dina's daughter didn't Ya'akov know that? Secondly, what did Yosef hope to accomplish by showing the shatr kiddushin and kesuva and how did this appease Ya'akov.

I believe the key to the answer is to understand what Ya'akov was trying to accomplish. The berachos that Ya'akov was giving Ephraim and Menashe were not just stam berachos, the intent of the berachos were to make them into Shevatim. In order to be considered Shevatim Ya'akov had to insure that they had the appropriate lineage. However, he wasn't concerned where Osnas came from, but rather he was concerned over what type of relationship Yosef had with Osnas-was it a real marriage or was she his pilegesh.

I heard recently a shiur from Rav Belsky that I found online, where he explains that when Ya'akov moved into Bilhah's tent his intention was to change his relationship with Bilhaha and Zilpah from being his pilagshim into being his wives. In other words he was koveia that they were no longer shifachos but had the status of imahos. The purpose of this was to ensure that all 12 sons would be fit to be shevatim. If Bilhah and Zilpah would retain their status of shifachos then their children would only be considered avadim and not part of the shevatim.

Reuvain did not understand this and he thought Bilhah was still his father's pilegesh-that's why the posuk says he slept with the pilegesh of his father. The Torah is describing the mindset of Reuvain. Rav Belsky further pointed out that after this ma'aseh, the Torah constantly refers to the shevatin as "12 sons of Ya'akov" and as "achim/brothers". The Torah is stressing this point that all 12 sons were shevatim and even the children of Bilhah and Zilpah were no longer considered avadim but shevatim.

With this idea, we can understand the whole conversation between Ya'akov and Yosef. In order for Ephraim and Menashe to be Shevatim, they couldn't be sons of a pilegesh. They had to be children of a real marriage. It's possible that even though Ya'akov was able to change the status of Bilhah and Zilpah (and consequently the status of their children) retroactively, when it came to Yosef's children he couldn't do that since they were already starting at a lower level having come from Yosef and not from Ya'akov. (You can also probably take issue with Rav Belsky's hanacha that originally Bilhah and Zilpah were only shifachos, maybe they were always imahos just Reuvain did not realize this).

The Ra'avad in Hilchos Ishus 1:4 writes that a pilegesh has kiddushin with no kesuva. The Maggid Mishna says this is also the Rambam's shittah, however the Lechem Mishna writes that from the Rambam in Hil' Melachim it seems the Rambam holds a pilegesh has no kiddushin and no kesuva. Either way, (although it works better with the Lechem Mishna), we can unde3rstand why Yosef responded by showing Ya'akov his shtar kedushin and kesuva. He wa sshowing Ya'akov that Osnas was his real wife andnot just a pilegesh and therefore his sons were fit to be made into shevatim.

(Ayin Sha'arei Aharon who mentions this idea as well)

Parshas VaYigash:Motherhood-based on cconception or childbirth

OKay, I want to end this month with more than one post, so I will stop being lazy and post my latest chaburah.

Rashi on the posuk "Shaul ben HaCana'anis" brings the medrash that Shaul was the son of Dina and Shimon. The question is that even a Ben Noach is not allowed to marry his maternal sister. How then could Shimon marry Dina. One approach to answer this question is to use another medrash. The Targum Yonason Ben Uziel tells us that when Leah was pregnant with her 7th child she davened to Hashem that it should be a girl. At the same time, Rochel was also pregnant. Hashem caused the fetus in Leah to be switched with the fetus in Rochel. Rochel gave birth to Yosef and Leah gave birth to Dina. Since Dina was conceived in Rochel's womb you can argue that her mother was really Rochel. Consequently, she was muttar to marry Shimon.

In case you think that this is all derush, there is a very important halachic nafka mina. When a baby is born in-vitro or through a surrogate mother, who is considered the mother -the one who supplies the egg and conceives the child or the one who gives birth to the child. (or in the word of Rabbi Bleich is motherhood defined by parturition or by gestation).

There are a number of teshuvos/articles written on this topic. Rabbi Bleich has an extensive article in his Contemporary Halacha vol 4. Techumim vol 5 also has a discussion on this topic. Finally, there is also an article in the Jouranal of Halacha and Contemporary Society vol 38.

Just to note, we are not discussing whether it is muttar l'chatchila to do such a thing, only b'dieved if it was done who is the mother.

I will just bring 1-2 proofs for each side of the equation.

Parturition or Childbirth

1) The Tzitz Eliezer quotes the sefer Tzur Ya'akov who actually wants to bring a rayah from the Yonason ben Uziel quoted above. However, the rayah is in the opposite direction. Since the torah lists Dina as Leah's daughter and Yosef as Rochel's son, we see that motherhoood is based on teh woman who gives birth to the child.

Rav Shternbach in an article in a medical torah journal called "b'shvilei u'refuah" argues that you can't bring a rayah from derush. Furthermore, there is another pshat, that the fetus' weren't switched but rather the neshamos were switched.

2) The sefer Even Yakar (quoted by the Tzitz Eliezer) discusses a case of an ovarian transplat (which seems to have never happened) and he brings a rayah from a gemara in Sotah 43B. The gemara says that if you graft a tree less than 3 yrs old onto a tree that is older than 3 years, the new tree is patur from orlah. We see you follow the mother who gave birth.

3) Rav Zalman Nechemiah Goldberg in Techumim vol 5 brings a rayah from Yevamos 97b. The gemara discusses a case of a non Jewish lady who converts when she is pregnant and then has twins. The gemara says these twins are considered brothers and there is a chiyuv yibum since at birth the mother was Jewish. Again we see you follow childbirth.

Gestation/Conception

Rabbi Bleich brings a Rabbi Akiva Eiger (also quoted in the Chavtzeles HaSharon on Vayigash) in Yorah Deia (SIman 87) as a proof that we follow conception. The halacha is that milk from a shechted animal can not create an issur basar v'chalav because we need "chaleiv imo"=milk from an animal who can be a mother. A shechted cow can not be a mother. Rabbi Akiva Eiger asks what is the din with a cow that is a treifa. Such a cow can not give birth but it can conceive. He says in such a case the cow is considered a mother. From here we see that motherhood follows conception.

Parturition and Gestation

Rabbi Bleich wants to say that both women are considered the mother. By kilayim of animals, the gemara says "choshishin l'zera ha'av" and the animal is considered to be a species from the father and the mother. Here too, the women who conceived contributed to this child and she should also be considered the mother.


According to the Jouranal of Halacha and Contemporary Society most poskim say the one giving birth to the child is the mother. But as always ask your local Orthodox poseik.

Parshas Vayishlach:Do you need a kli for the Menorah

The Avnei Nezer (Siman 500) discusses whether one needs to use a kli to light the menorah. The Chessed L'Avraham brings down 15 madreigos of a menorah, the best being gold then silver, copper etc. He then writes that one can not use egg shells because it is not a kli and also you can't use a kli that can't support itself. The Avnei Nezer paskens like the Chesed L'Avraham. He tries to prove that in the Beis HaMikdash, the kli used to hold the oil was considered a chelek of the ner of teh menorah and therefore, by Chanuka as well one needs a kli to hold the oil.

There are several chumros that come out of this.

1) One can not use a hollowed out potato to hold the oil since food is not m'kabeil tumah and is not considered a kli. (l'fi zeh tzarich iyun on the Holocaust stories where they were moser nefesh to put oil in a potato and light it. Acc. to the Avnei Nezer they were not yotzei).

2) If the kli can't stand by itself it is not a kli. Rav Shternbuch (Teshuvos V'hanhagos chelek 2) also paskens like the Avnei Nezer and he says that most of the glass cups we use are no good. Most of the cups we use have a nipple on the bottom and they can't stand on their own. Accordingly, they would not be considered a kli and you would not be yotzei ner chanuka.

3) If one has a gold menorah but uses glass cups, you would lose the hiddur of using a gold menorah, since you are really lighting with the glass.

4) If you just stuck candles down on the table you would not be yotzei.

Other than the Avnei Nezer and Rav Shternbuch, the other poskim I saw are all meikil for different reasons.

1) The Shevet Levi argues on the whole dimyon to the menorah in the Beis HaMikdash. Even if the Avnei Nezer is correct that in the Beis HaMikdash the kli is a chelek of the ner, who says that we would say teh same by the Chanuka menorah. The menorah in the Mikdash could not be made out of wood and only had 7 branches, while our menoros can be made out of wood and have 8 branches.

2) Rav Shlomo Zalman Aurbach zt"l in Halichos Shlomo says that the glass cup is batul to the menorah. Therefore, as long as the menorah can stand by itself, it makes no difference if teh glass cup can stand by itself. Furthermore, if the menorah is gold, you would still get the hiddur of using a gold menorah.

3) The Sdei Chemed (Mareches Chanuka Os 7) says that if the kli was originally made so that it couldn't stand it si not a chisaron in the kli and it is still considered a kli. The rayah is from a mishna in keilim. I also saw this brought down in a sefer on Hilchos Chanuka and the comparison was made to nitilas yadayim. By nitilas yadayim, we pasken if the cupo can't stand on its own but it was made liek that , it is still a kli. So hu hadin by Chanuka. Rav Shternbuch mentions this dimyon but he rejects it. I don't understand his sevara for rejecting it, but ayin sham.

4) The Az Nidbiru (chelek 13 Siman 49) points out that the Avnei Nezer brings Rishonim who are choleik on teh Chesed L'Avraham, namely the Radvaz, the Rashba and the Ran. Also, the poskim never indicate we should be machmir like the Chesed L'Avraham.

5) The Chacham Tzvi writes that one is yotzei if you stick candles on the wall. We see he didn't require a kli.

6) Finally, the Az Nidbiru (chelek 13 Siman 49) has a totally different understanding of the Chesed L'Avraham. When the Chesed L'Avraham writes that the kli must stand by itself, that is only because otherwise there won't be enough oil b'zman hadlaka to last the shiur.

Parshas Chayei Sara:Punishment for those under 20 years old

I haven't had a chance to post my shiurim from the previous weeks. I decided I'll start with this week and work backwards.



Rashi quotes the medrash that Sorah had no sins at age 100 just like she had none at age 20. The medrash says that the reason Sorah had no sins at age 20 is because less than 20 a person is not punished b'dinei shamayim. The question is what does this mean and are there other m'koros besides this medrash.

The gemara in Shabbos 89B mentions this idea. Hashem wanted to destroy the B'nei Yisroel and part of Yitzchak's arguement in favor of the B'nei Yisroel was that for the first 20 years of a person's life they don't get punished.
The Rambam in Sanhedrin Perek 7 peirush hamishnayos also says we have a mesorah that under 2o there is no chiyuv kareis.

The Mizrachi in Chayei Sora also writes that this halacha applies to kareis. He says even though the Rambam mentions that one is who over 13 is chayav for malkos and kareis, he means that there is only a chiyuv malkos from age 13.

The Noda B'Yehuda and the Chida in Torah Lishma explain that this halacha applies to all chiyuvim b'dinei shamayim and not just kareis. However, they both point out that it applies b'olam hazeh. A person under 20 will not get punished in this world b'dinei shamayim. Once a person dies, you will get punished for aveiros you did under 20. Furthermore, you will also be held responsible for the aveiros you did as a koton, unless you did teshuva when you got older.

Finally, the CHasam Sofer and Chacham Tzvi both reject this whole idea. The Chasam Sofer says we don't find anywhere in halacha that a person under 20 is not punished. The gemara in Shabbos is aggadata and we don't learn from aggadata.

Bereishis:The Mitzvah of Kiddushin

This past week I spoke about the mitzvah of kiddushin. In this week's parsha is the mitzvah of peru u'rivu. The question is how does kiddushin fit in? Is this also a mitzvah? There are 2 main opinions in the Rishonim.



Rambam



The Rambam (Hilchos Ishus 1:2, Sefer HaMitzvos 213) states clearly that kiddushin is a mitzvah. He counts the mitzvah of peru u'rivu and kiddushin as 2 mitzvos. According to the Rambam, if one wants to create a relationship with another person, it is a mitzva to do it through the mechanism called kiddushin.



The Kesef Mishna quotes Rav Avraham ben HaRambam who explains that the Rambam holds kiddushin and nisuin is one mitzvah. Kiddushin is considered the beginning of the mitzvah and nisuin is the end of the mitzvah. The KEsef Mishna is m'dayeik from the way the Rambam lists the mitzvah in his header. He writes "the mitzvah of nisuin through kiddushin and kesuva". I think you can add a diyuk from the sefer hamitzvos where the Rambam writes "it is a mitzvah livol isha through kiddushin". You see the entire process is the mitzvah.



You can contrast this with the Sefer HaChinuch who writes the mitzvah is to be m'kadeish an isha through kesef,shtar, biyah. He makes no mention of nisuin.



Rosh



The Rosh in Kesuvos (perek 1 siman 12) says kiddushin is not a mitzvah. He says if one wants to be m'kayeim peru u'rivu yuo can do it through a pilegesh, you don't need to get married. In fact it's not even a hechsher mitzvah like shechitah. By shechitah, you can't eat without shechitah, but you don't need kiddushin to be m'kayeim perui u'rivu

Nafka Mina

1) Birchas Eirusin

How do you understand the nature of the beracha on kiddushin? The Rosh writes it is not a birchas hamitzvah but a birchas hashevach. That is why the loshon of the beracha is not comparable to a regular birchas hamitzvah. We don't say "asher kidishanu l'kadesj isha". Plus we mention the issur arayos. We never find that we mention the issur in a birchas hamitzvah. Finally, that is way the beracha is said after kiddushin and not before, there is no requirement for oveir l'asiyason since it is only a birchas hashevach.

The Rambam (Ishus 3:23) says the beracha must be before the mitzvah due to oveir l'asiyason. In fact if you omit the beracha you can't say it after the kiddushin.

2) Mitzva Bo Yoser M'bishlucho

According to the Rambam we understand why the gemara says it's better to do kiddushin yourself. Since it's a mitzvah it is better to do it yourself. According to the Rosh why is it better? In fact the Netziv (Hemek Shailah Siman 165) says mitzva bo yoser m'bishlucho would apply to a hechsher mitzvah but only a hechsher mitzvah mentioned in the Torah (like Kovod Shabbos). A hechsher mitzvah not mentioned in the Torah does not have this requirement. Since kiddushin isn't mefurash b'kra there is no mitzva bo yoser m'bishlucho by kiddushin if it is only a hechsher mitzvah. (He uses this as a rayah against the Rosh).

You can answer the Rosh with a Ran in Kiddushin (Reish Perek 2). The Ran says mitzva bo yoser m'bishlucho applies to a man because it is assur to marry without seeing the woman. However, mitzva bo yoser m'bishlucho applies to the woman as well since she helps the man fulfill his mitzvah of peru u'rivu. You see the Ran holds like the Rosh that kiddushin is not a mitzvah but mitzva bo yoser m'bishlucho still applies.

Mazal Tov

Mazal Tov to myself (are you allowed to wish yourself Mazal Tov), my wife and my six children on the birth of our new daughter/sister. Our new daughter, Avigayil was born this past Friday morning. Boruch Hashem both mother and daughter are healthy and doing fine and they made it home for Yom Kippur.

We now have 5 girls and 2 boys-hopefully by the time they are in the parsha the shidduch crisis will be solved and the boys side will pay for everything :-) .


Hopefully, we should only see nachas from her as well as all our other children.

Parshas Netzavim/VaYeilech: Blowing Shofar on Rosh HaShana

The Shulchan Aruch paskens that we don't blow shofar on Rosh Hashana when it falls out on Shabbos (as it does this year). The reason the gemara gives is because we are afraid that one might carry the shofar in reshsus harabim and be oveir on the d'oreisa of hotza'ah. (This same reason applies for reading the megillah and taking the lulav). The question is, what happens if someone goes ahead and does blow shofar on Shabbos? Is he at least yotzei the mitzva d'oreisa of blowing shofar? It's understood that chazal made a gezeirah not blow shofar, but l'chorah the chiyuv d'oreisa still exists and if so why would one not be yotzei m'd'oreisa.

Nafka Mina
Before I get into the lomdus, there are actually several nafka mina to this question.

1) The Aishel Avraham in Siman 600 (and also brought in the otzar meforshim peirush on the side of the shulchan aruch in Siman 588 says that if one blew shofar on Shabbos Rosh Hashana then one does not make the Shehechiyanu on the second day. Since the beracha was made the first day there is no need to repeat it.

2) The Chachmas Shlomo (Siman 588) discusses a case where someone blew 2 set sof tekia teruah tekia but not that third set. This person is in limbo. .He was oveir on the d'rabanan of blowing shofar on Shabbos but he was not yet m'kayeim the d'oreisa since m'd'oreisa you need to blow 9 sounds-3 sets. The question is do we allow this person to blow 1 more set to be yotzei m'd'oreisa.

3) Chazal never made the takana in Yerushalayim in front of beis din. There is a machlokes rishinim what kind of beis din you need. The Rif paskins that all you need is a beis din of 3 people and you can blow in Yerushalayim. In 1881 (Rosh Hashana 5642) Rav Shlesinger wanted to blow shofar on Shabbos in Yerushalayim. In the sefer Ir Hakodesh V'HaMIkdash, Rav Tukitchinsky discusses the 2 sides of the issue. He writes that initaially Rav Shlesinger had 23 rabbonim on his side but in the end most of them backed out and only a few rabbonim blew shofar. He also quotes the gabbai of Rav Shmuel Salant who said that Rav Shmuel Salant would not pasken it is muttar but he wouldn't be mocheh against someone who went to hear the shofar. Fimally, Rav Tukitchinsky quotes the Aderes who said in 1903 that it was a shame Rav Shlesinger is not around to blow shofar on Shabbos since he would go behind a wall to hear him.

This leads us to the 3rd nafka mina. What would happen if someone blew shofar on Shabbos illegally-could one go hear the shofar and be m'kayeim a mitzva m'd'oreisa.

The Lomdus

The lomdus is very simple. In fact Rav Elchanan in Kunteres Divrei Sofrim Siman 3 discusses this issue. When chazal were okeir a mitzva m'd'oreisa b'shev v'al ta'aseh were they okeir it completely and therefore even if you do the mitzvah m'd'oreisa you don't get a mitzvah or do we say that the mitzvah d'oreisa still exists. It's just that now I have 2 competing mitzvos. On the one hand I have the mitzvah to blow shofar. On the other hand I have the mitzvah to listen to the chachamim. Which mitzvah takes precedence? Rav Elchanan explains that we say "shev v'al ta'aseh", don't do anything. In this case it would mean don't blow the shofar.

Rav Elchanan has a few nafka mina and rayas from various gemaras for each tzad. ayin sham.

Rabbi Akiva Eiger seems to take a clear stand on this issue. In derush v'chiddush (ma'areches 8) he says that if you blow shofar on Shabbos you get a mitzva m'd'oreisa.

Rav Tzvi Pesach Frank (Har Tzvi Siman 88 and Mikroei Kodesh) asks that there is a Tosafos in Sukkah (3a) against Rabbi Akiva Eiger. If one sits ina sukkah and the table is in the house, you are not yotzei. Tosafos says you are not yotzei even m'd'oreisa because the rabanan have the ability to be okaeir the d'oreisa and you are not m'kayeim any mitzvah. The Ran disagrees with Tosafos and holds you are yotzei m'd'oreisa, but al kol panim, how can Rabbi Akiva Eiger go against a Tosafos. (Interestingly, Rav Elchanan never mentions this Tosafos). Rav Tzvi Pesach Frank wants to learn that the m'kor for Rabbi Akiva Eiger is from a different gemara and Tosafos is learning like a shitta that we don't pasken like (ayin sham).

I found in the journal HaPardes from 1960 that the Siridei Eish discusses this as well. He asks on Rav Tzvi Pesach Frank that we pasken like Tosafos. Therefore, whatever answer you give for Rabbi Akiva Eiger has to address Tosafos since that is how we pasken. He answers that there is a difference between sukkah and shofar. By the case of sukkah, chazal possuled the sukkah itself. In such a case we would say that you are not yotzei m'd'oreisa since you are not sitting in a sukkah. By shofar, they didn't possul the shofar but rather invalidated your act. However, your act of blowing teh shofar might not be good m'd'rabanan but it is good m'd'oriesa.

In Mikroei Kodesh, Rav Tzvi Pesach Frank does seem to mention this teretz but he doesn't stick with it.

Also, if you look in the Rishimus Shiurim on Sukkah, the Rav learns the Rambam not like the Siridei Aish. He is m'dayeik in the Rambam that it is not a p'sul in teh cheftzah shel sukkah but teh ma'aseh is not a mitzvah,

Spam in comments

I've been getting some spam comments recently. Does anyone know how to prevent this from happening?

Blowing Shofar on Shabbos

The SHulchan Aruch paskens that a shofar is a kli sh'melachto l'issur on Shabbos and mutar l'tzorech gufo and m'komo. I was wondering why it is not muktza machmas chisaron kis since we would never use it for any other purpose.

I saw that the Shmiras Shabbos quotes Rav Shlomo Zalman Aurbach Zt"l who makes this point. B'zman hazeh a shofar would be muktza machmas chisaron kis. It was only in the days of the gemara and Shulchan Aruch where they used it for other purposes that it was considered a kli sh'melachto l'issur

Tefillin as a Kli Gever

My father pointed out to me that the Targum Yonason Ben Uziel writes that tzitzis and tefillin are considered bigdei ish and are part of the issur of "Kli Gever". Most of us are aware of the claim that Rashi's daughter's wore tefillin. However, even if this is not true we do find in teh gemara that Michal bas Shaul wore tefillin and the chachamim did not protest. Furthermore, the Rambam paskens (Tzitzis 3:9) that women are allowed to wear tzitzis if they deisre. It would seem that the gemara and the Rambam argue on the Targum Yonason Ben Uziel.

Perhaps the machlokes is based on how to view tefillin. In general the issur of lo silbash kli gever is limited to when one wears the clothes as a malbush or tachshit. For example, if a man would wear a woman's raincoat to protect himself from the rain then there is no issur-he is wearing it for protection and not as a malbush/clothing. Similarly, a man can wear his wife's ring in order to keep it safe. (l'moshel-his hands are full and he has no pockets so the only safe place is on his finger). Again he is not wearing it as jewelry so it is mutar.

The question might be how do we view tefillin? Is it considered a tachshit or an article of clothing or is it something that we wear only to perform the mitzvah and it doesn't have the status of clothing or jewelry. Furthermore, even if one argues that it is a tachshit, maybe that is only for someone who wears it all day. But if you put it on solely to perform the mitzvah, maybe it is not considered wearing a tachshit.

In preparing my shiur this week (yes the chaburah zman has officially started up again), a came across a Maharshag in Chelek 1 Siman 36. He is discussing whether there is an issur hotza'ah on Shabbos if you wear something that is assur to wear-for example tefillin. He writes that tefillin in of themself are not considered a malbush or tachshit. We don't find that non Jews wear them. However, during the week it would be a tachshit for Jews who wear them for the mitzvah. However, this is only when one wears them for the mitzvah. If one does not wear them for the mitzvah-like on Shabbos then it would not be a tachshit but would be a masa-a burden and you would be chayav for hotza'ah on Shabbos. He then adds that the gemara says that if you find tefillin on Shabbos in the street you should wear them one pair at a time. However, he quotes the Magan Avraham (301:54) who says this only applies for a man. A woman would not be allowed to wear the tefillin since for her it would not be a malbush since she doesn't wear them during the week.

I guess what comes out of the Maharshag is precisely the opposite of what I wanted to say. According to the Maharshag, wearing tefillin for the mitzvah is a tachshit. The question is would that apply to the issur of kli gever as well?

Beracha Al HaNeis

I was recently learning the 9th perek of berachos and the first sugyah is about making a beracha in the place where a neis happens. The halacha is (siman 218) that besides making a beracha on a neis that happened to klal yisroel (for example making a beracha by the yam suf), there are other situations that one would make a beracha.

1) Based on the Yerushalmi, we pasken that you make a beracha on a neis that happens to an adam chashuv like Yoav ben Tzruyah. The question is why. The Biur Halacha quotes the Elyah Rabba that someone like Yoav ben Tzruyah was the shaliach for all of klal yisroel. When a neis happened to him it was really a nes for klal yisroel and it is considered a nes shel rabim. B'zman hazeh we assume no such person exists and we don't make a beracha.

2) The Avudraham writes that we only make a beracha on an event that happend al pi nes. If it happened b'minhag ha'olom you don't make a beracha. He asks why do we make a beracha "sh'asa nisim" by Purim and Chanukah. He answers that Purim was a nes because the king went against the laws of the land and also he killed 80,000 people to please Esther. This is not monhag haolam and is a neis. Chanukah we only make the beracha over the nes of the oil and not the war.

This Avudraham is also interesting for a different reason. Some achronim (ayin Kuntres Chanuka U'Megillah) discuss whether the beracha of shasa nisim by Chanuka is a birchas hamitzvah or birchas hashevach. The Avudraham clearly takes the tzad that it is a birchas hashevach.

3) An individual wil also make a beracha at the place where a nes happened to him that saved him from harm. There are 2 opinions in the Shulchan Aruch whether the event that happend has to be through a real nes. It seems to me that there is a machlokes between the Mishna Berurah and Chayei Adam (siman 65 in Nishmas Adam), how to understand the opinion that one doesn't need a nes.

The Chayei Adam brings several proofs that we don't require that a person is saved through a nes but as long as he was saved "b'derech nes" he can make the beracha. For example, if a wall falls on a person and he really should have died but someone saves him so he wasn't saved through a nes but the fact that someone came and saved him was hashgacha pratis and it is "b'derech nes".

However, the Mishna Berura in the Biur Halcha learns a little differently. Both opinions in the Shulchan Aruch require that a person be saved through a nes. They only disagree what level of nes is m'chayeiv a beracha. The first opinion holds you need a real nes that is supernatural. The second opinion holds that even the fact that Hashem caused circumstances to happen to allow you to be saved is a nes. If robbers held you uyp and it just so happened that someone came by and saved your life-even though nothing supernatural happeend, that is a nes and since it is a nes you can make the beracha.

Although it seems like the Chayei Adam and Mishna Berura are saying the same thing, Ithink they are not. The Chayei Adam seems to be saying you don't need to define the event as a nes-as long as it happened in a way which we see yad Hashem and is b'derech nes, you can make the beracha. The Mishna Berura seems to be saying you must define the event as a nes.

I would like to add that perhaps they are arguing in the following chakirah. When we make a beracha at the yam suf that is clearly a beracha recognizing the fact that Hashem performed a nes for klal yisroel. How about when an individual makes a beracha on his personal nes? Is this also a shevach in recognition of the nes Hashem did or maybe it is a form of birchas hagomel. A regular birchas hagomel is thanking Hashem for saving you. Chzal were m'sakein that when Hashem saved you b'derech nes that you make a sh'asa nisim as well (when you pass by the place). It could be the Mishna Berura holds like the first tzad-it is only a beracha on a nes therefore you can only make the beracha if the event is defined as a nes. The Chayei Adam holds like the 2nd tzad, it is a unique form of birchas hagomeil and we don't care if the event that happened can be defined as a nes but rather did Hashem save you b'derech nes.

I have a few other nafka minas in this chakirah.

a) The Rivash writes that besides making a sh'asa nisim over an individual event, you also bentch gomel. His reasoning is based on a kal v'chomer, if I make a sh'asa nisim kal v'chomer I should bentch gomel. If Sheasa nisim is just a shevach in recognition for a nes Hahsem performed, what is the kal v'cho,er to gomeil-they are 2 distinct types of berachos. But if we say sh'asa nisim is a differeent form of gomeil the kal v'chomer makes sense.

b) There is a machlokes who makes this sh'asa nisim. Is it only the person's children and grandchildren or every generation. If the beracha is just a shevach over the nes so we can say all future generations make it-just like the beracha on the yam suf. But if it is a gomeil type beracha so maybe it is limite dto children and grandchildren since they benefit more directly than other descendents from the hatzalah so they can make the gomeil.