Mitzvah to Build a Sukkah

Maybe I should welcome myself back. I haven't posted in awhile mainly due to a combination of summer, work and laziness. (I won't say what was the ikkar and what was the tafeil). I will bli neder try and post more consistently this year but as always I make no promises.

The members of my chaburah asked me to give a shiur during the Yom Kippur break. I spoke about the mitzvah of building a sukkah. Just as a side note, I found that giving the shiur invigorated and energized me for the rest of the day.


There are a number of mekoros which seem to indicate that there is a mitzvah to build a sukkah.


1) Rashi Makkos 8a. Both the Avnei Nezer (459) and Netziv in Ha'Emek Sheilah Parshas Zos Haberacha point out that Rashi seems to hold there is a mitzvah to build a sukkah. The gemara says that if you chop wood and kill someone you are chayav golus even if you are chopping wood to build a sukkah. Rashi writes that chopping the wood is not a mitzvah but building a sukkah is.

2) The Shi'iltos (V'Zos HaBeracha) writes it is a mitzvah to make and sit in the sukkah. The Netziv is medayeik that making a sukkah is also a mitzvah. The m'kor is from the possuk "

3) The Yerushalmi (quoted by Tosafos Sukkah46a) says one makes a beracha on making the sukkah. It would seem from here that it is a mitzvah to build a sukkah. The Minchas Elazer points out that the Bavli in Menachos 42a disagrees and holds there is no beracha on making a sukkah and therefore the Bavli will tell you there is no mitzvah to make a sukkah. However, one could argue that the machlokes Bavli and Yerushalmi is whether one makes a beracha on a mitzvah that is not finished. Since the complete mitzvah is sitting in the sukkah the Bavli will hold you don't make a beracha.

4) The gemara says one makes a She'hechiyanu on building a sukkah. The Aruch LaNer says that this only makes sense if you hold building a sukkah is a mitzvah. However, one could argue that the SHehechiyanu really goes on the sitting in the sukkah but we make it by the asiyas sukkah since you need toi build a sukka to be able to sit in it.

5) The Chasam Sofer (Yora Deia 471) and Minchas Elazar hold there is no mitzvah to build a sukkah

Nafka Mina

1) The Netziv says the klal of Mitzvah Bo Yoseur M'Bishlucho applies to building a sukkah. Furthermore, if one plans on using his friends sukkah there would still be a kiyum mitzvah to build your own.

2) The Rema based on the Maharil paskens (Hil Sukkah 655) that one should build a sukkah right after Yom Kippur because Mitzvah HaBa'ah L'Yodcha AL Tachmitzena.

3) The halacha is that a sukkah built by a non Jew is kosher but the poskim write that one should try and add on to it. The Moadim U'Zmanim says the reason for this is because it is a mitzvah to build a sukkah.

4) Genrally speaking, the Shehechiyanu we recite on the first night goes on the Zman and on building/sitting in the sukkah. If one sat in a neighbors sukkah the first days and then built his own sukkah on Chol HaMoed does one make Shehechiyanu. The Mikroei Kodesh says that if you hold there is no mitzvah to build a sukkah then there is no question-of course there is no Shehechiyanu. The Shehechiyanu is only going on the yeshivas sukkah and the zman of sukkos both which were covered on the first night. If you hold there is a mitzvah to build a sukkah then you can start to ask. 

Makdish a Sedei Achuza

I just saw an interesting Chasam Sofer regarding being makdish a sedei achuzah. The gemara in Bava Metziah (67B) has a discussion on various types of collateral (mashkon) that a borrower gives a lender. One type is called "nechyasah". The borrower gives the lender a field as a mashkon where the lender eats the fruits during the years of the loan and the value of the fruit is deducted from the amount that the borrower owes. Another type is called "asrah d'misalki" which means that the borrower has a right t o repay the loan and take back the mashkon anytime before the loan is due.

The Nimukei Yosef quotes the Rashba that there is no problem of ribis by asra d'misalki b'nechyasah. His rayah is from sedei achuzah. By a sedei Achuzah, a person is makdish the field to hekdesh and he can redeem it anytime before yoveil. The amount he pays depends on how many years there are left to yoveil. Teh question is, how is sedei achuza a rayah-there is no loan taking place.

The Chasam Sofer explains that when you are makdish the field you are not makdish the field but rather you are makdish the money-50 shekalim. However, instead of giving the money to hekdesh, you owe them the money and the field is a mashkon. So in reality you borrowed 50 shekalim from Hekdesh and gave them a field as a mashkon. Since you can pay back the loan i.e. redeem the field anytime, the maskon is an asrah d'misalki. Furthermore, since the amount of the loan is reduced based on how many years hekdesh held it, it is also nechyasah. Since the Torah says it works we see there is no ribis by asra d'misalki which is nechyasah

Women and Ba'al Tosif

I came across in interesting shitta in teh Sefer HaMachria (by the Tosafos RID)  Siman 78. Rabbi Akiva Eiger quotes this particular shitta in regards to whether a blind person is chayav in a lo saseh. The Machria writes a blind person is patur from all mitzvos including lo saseh. (Rabbi Akiva Eiger disagrees). However, that is not the biggest chiddush. Here is the chiddush.

First some background: Rabbeinu Tam (Kidushin 31 and other places) writes that a woman can make a beracha on a mitzva she zman grama. A rayah is from suma where one can infer from the gemara in Kiddushin that a suma can make a beracha even though he is patur from mitzvos.  The Machria rejects the rayah for the following reason. (Tosafos in Eiruvin and Rosh Hashana rejects the rayah from suma for other reasons). If a woman would do a mitzva she is not chayav in b'toras chov then she violates Ba'al Tosif. Therefore, the rabbanan can never be m'chayeiv a woman in a mitzva d'oreisa because by doing so they cause her to violate Ba'al Tosif and they have no right to be okeir the lav of Ba'al Tosif. However, she can do the mitzva b'toras reshus. However, if she would make a beracha on the mitzva she is showing she wants to do it b'toras chov and m'meila she would be oveir on Ba'al Tosif.

A suma on the other hand is patur from all lavin. He has no issur of Ba'al Tosif. Therefore, the rabanan can be m'chayav him in mitzvos and he can make a beracha. Doing a mitzva which he doesn't have to do b'toras chov doesn't violate Ba'al Tosif since he is not chayav on lavin.

This idea that a woman is oveir Ba'al Tosif for doing a mitzva b'toras chov, and m'meila the rabanan can't be m'chyeiv her to do it, is a chiddush.

I just want to add that when I wrote "the rabbanan can never be m'chayeiv a woman in a mitzva d'oreisa because by do so they cause her to violate Ba'al Tosif " is my own hesber in the Machria. The Machria doesn't differentiate between the rabanan being m'chayeiv a woman in a d'oreisa or being m'chyeiv her in a din d'rabanan or takana/gezeirah d'rabanan like netilas yadayim.  But to me he can't mean they have no right to be m'chyeiv her in a din d'rabanan. It makes no sense to say that. That is why I think he means they can't be m'chayeiv her in a d'oreisa.

Parshas Beha'alosecha:Standing for a Sefer Torah

Since this parsha has the "famous" VaYehi Binso'a Aron, I decided to talk about standing for a sefer torah.
The gemara says that since we are obligated to stand for a talmid chacham, kal v'chomer one must stand fro the sefer torah itself. However, the Taz writes in Yora Deia 242:13 that if the sefer torah is in its own mokom, defined as an area surrounded by mechitzos 10 tefachim high and 4 tefachim wide, then you do not have to stand. The Mishna Berura brings this down l'halacha in the Sha'ar Hatzion (146:18) as well. However, even though there is no chiyuv, the minhag is to stand for kovod hatorah.

The question is what about when the sefer torah is on the shulchan? Well, if the shulchan is on a real bima that is surrounded by mechtizos so then it is in its own reshus and there is no chiyuv to stand. Even if the shulchan is a standalone shulchan but it has sides then it is also not a problem. The problem really comes up when the shulchan is a regualr table with 4 legs. Since there are no mechitzos, it can not be considered a separate reshus.

There is a machlokes between the Pri Megadim and Rav Moshe what the halacha is.

The Shulchan Aruch in Y.D. Siman 242:18, the Mechabeir paskens that if your Rebbi gets an aliyah you don't have to stand up for him when he is standing by the shulchan. The Rema adds that you also don't need to stand if the bima is a separate reshus. The question is how does one understand the Rema. Is he saying a totally different din than the Mechabeir or is he explaining the Mechabeir? The Pri Megadim (Mishbitzos Zahav end of Siman 142) writes that the Mechabeir and Rema are saying two different halchos. The Mechaber is telling you that you don't have to stand because your Rebbi is in his place. The only time you have to stand for your Rebbi is when he is in transit,or temporarily standing to rest. Since in our case he is not in transit you don't have to stand.for him. The Rema is telling us a different halacha of reshus acheres-being in another reshus. The Pri Megadim concludes that since the halachos of standing for a Rebbi and a Sefer Torah are the same, when the Torah is also not in transit one does not have to stand. Therefore, even if the Torah is on a regular table you don't have to stand. Rabbi Akiva Eiger (Y.D. 242) and the Mishna Berura (146:17) both seem to agree with the Pri Megadim.

Rav Moshe (O.C. chelek 1 Siman 175) disagrees. He argues that the Rema is just explaining the Mechabeir and both of them are talking about the halacha of reshus acheres. His rayah is the fact that by standing for a Nasi, the Rambam writes you have to stand until he is seated. By a Sefer Torah the Rambam says you only need to stand while it is transt, implying when it reaches its place even if it is still standing you don't need to stand. (The Pri Megadim learns the Rambam by Nasi as lav davka-you don't need the Nasi to davka be sitting). Rav Moshe explains that really you can only sit when the Sefer Torah is seated. However, there is a fundemental difference between a person and a Sefer Torah. A Torah doesn't stand or sit. It is always being held. When the person carrying the Torah is no longer oin transit, the Torah is now sitting-sitting in the person's arms since a person is also a reshus acheres.

However, when the Torah is on a table, it is not considered sitting. But you still don't need to stand. The reason is because once the Sefer Torah is in its mokom there is no chiyuv to stand. The mokom for the Torah at this point is on the shulchan. so you can read from it. Therefore, you can sit down.

Parshas Bamidbar:Megillas Rus

Rashi (Rus 4:6) explains that the Goeil doesn't want to fulfill teh mitzvah of yibum with Rus because he is worried that it will be a pegam on his children. The obvious question is that if the Goeil felt that it was assur to marry Rus because she came from Moav, why is he only concerned about his children-he should be worried about himself as well. He has no right to do an aveirah and marry Rus.

The Maharsha (Yevamos 77) answers that the Goeil felt the mitzva of Yibum is doche the issur of marrying a Moavis. How is there a mitzvah of Yibum? The Ramban in Vayeishev explains that the minhag kadmonim was that if a man died childless one of the man's male relative would marry the widow in order to perpetuate the dead man's name. This was the kavana behind Yehuda and Tamar. The Ramban adds that before Mattan Torah, any male relative would marry the widow. After Mattan Torah only a male relative who is muttar to marry the widow would marry her. The exception to this is obviously the dead man's brother where the Torah specifically allowed him to marry the widow. However, in a case where there was no brother it was the custom for any male relative (who is muttar to the widow) to marry the widow. The Ramban concludes that this is what happened with Boaz and Rus.

Therefore, the Maharsha writes that this aseh of Yibum was docheh the lav of Moavis. However, the Maharsha asks that the gemara tells us that really aseh docheh lo saseh would only apply to the first bi'ah. After that there is no aseh. Therefore, chazal made a gezeirah against doing bi'ah rishona so one won't come to do bi'ah shniah. In other words the klal of aseh docheh lo saseh would not apply to yibum. The Maharsha answers that perhaps the Goeil lived before the gezeirah and we would say aseh doche lo saseh.

However, the bottom line is Rus is still assur lavo bakahal. Even though bi'ah rishona is muttar, any child born from this union would be a Moavi and pasul to marry a Jew. This is why the Goeil refused to do yibum-he didn't want any child born from Rus to be pasul.

The Bereichas Ma'ayan asks on the Maharsha that the Ramban only writes it was a minhag to do yibum, he never says it is a mitzvas aseh. tzarich iyun on the Maharsha.


The Brisker Rav (al HaTorah on Rus) gives a more lomdishe answer. The Rambam paskens that one can not argue on Halacha L'Moshe Misinai. However a later beis din can argue and pasken against a halacha learned out of the 13 middos. Boaz held the derasha of Moav v'lo Moavis was Halacha L'Moshe Misinai. The Goeil was modeh to this. However, he was afraid that in a future generation there would be an assumption that this halacha is not Halacha L'Moshe Misinai.but rather it is learned from a drasha. Then a future Beis Din will disagree with the drasha and pasken a Moavis is pasul and his children will be pesulim. In fact that is what happened to Dovid HaMelech. (Yevomas 77). Do'eig argued that Moav v'lo Moavis is a drasha and he had questions against the drasha. Eventually Avner answered that it is a  Halacha L'Moshe Misinai and noone can argue against it,.

Chaburos from the last few weeks:Parshas Shimini

I haven't had  a chance to write up my chaburos from the last few weeks. I spoke about some "controversial" topics, one recent anmd one from a few years ago. Parshas Shimini I spoke about the shailah surrounding the worms in the fish and Parshas Tazria Metzora I spoke about metzitzah b'peh.

Parshas Shimini

 I really didn't have anything to add to the question. I just presented the shailah and explained what the machlokes is about. Most of my information came from a friend of mine who works in kashrus who sent me several articles and teshuvos on the topic. Also, the OU has a write-up of their position (l'kula) on their website and last week's HaModia also had an article on the chumra position.

In summary, the gemara in Chullin 67B says bugs/parasites/worms found in the inside of the fish (the "viscera" i.e. stomach section)  is assur and those found between the flesh and skin or in teh flesh are muttar. The gemara says the reason is cause they grew from within the fish. This is also how we pasken.

The problem is that we now know that all parasites come from the outside. It is the proverbial cycle of life. These parasites get eaten by krill which then get eaten by fish that we eat (like salmon) then these fish get eaten by seals and dolphins. The parasites lay their eggs in the seals/dolphins and the eggs get expelled with the watse and they hatch in the water and the cycle starts all over again. The question is, if we know that the worms come from the outside of the fish, maybe they should be assur.

The question was raised 25-30 years ago and the poskim of the time among them  Rav Moshe Feinstein zt"l , Rav Shlomo Zalman Aurbach zt"l held if the worms are found in the flesh they are not assur and fish did not require bedikah. (Rav Elyashiv was also matir but I understand it was for different reasons then Rav Moshe and Rav Shlomo Zalmen. I am also not clear on where they disagreed). In order to reconcile Chazal with the science on eof two approaches were taken. 1) Either we ignore science and say Chazal were correct, therefore, if Chazal say bugs in flesh are muttar cause they grow there, then they are muttar. 2) Or a sevara was said that microscopic worms that can't be seen are muttar and since the worms were microscopic when they entered the fish, they never became assur. They only grew inside the fish. It should be pointed out that Rav Elyashiv doesn't hold of this sevara-he holds even if it originally was microscopic, but now you can see them, they would be assur. However, he still held the worms werer muttar 30 years ago.

Recently, the issue was raised again. What changed? The claim is that we can now see very clearly that one of the worms in the fish called Anasakis comes from the outside. The arguement is that the hetterim of 30 years ago only apply to parasites where we don't know for sure where they originally came from. Howeevr, if we know with 100% certainty they come from the outside, then even the poskim of yesteryear (i.e. Rav Moshe and Rav Shlomo Zalman) would have said they were assur. Furthermore, the sevara of microscopic worms doesn't apply since we can see these worms outside the fish. This is the opinion of the machmirim.

The meikilm hold that nothing has changed. The same parasite we have now is the same as 30 yeas ago and is the same as in teh times of Chazal. I spoke to someone who is familair with Rav Belsky's opinion and Rav Belsky is meikil. He holds that when Chazal told us worms found in the flesh are muttar, they are muttar. Chazal never distinguished where these worms originally came from, as long as they are found in the flesh it is muttar. He further feels that when Rav Moshe was aksed this shailah, he didn't even understand why it was a question. It is a davar pashut it is muttar and there is nothing to talk about.

That's a brief synopsis of the issue. My understanding is that the major national kashrus organizations are being meikil although there are definately local va'ads that are being machmir. It should also be noted that the HaModia had a list of fish (besides wild salmon) which are a problem according to the machmirim. One of the reasons some fish (like farm raised salmon) don't have this problem is that these fish don't eat krill and therefore they don't have these parasites in their system. (There could also be othe reasons but this is one of them).

As always ask your Rav.

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.