"את כל הדבר אשר אנכי מצוה אתכם היום תשמרו לעשות לא תסף עליו ולא תגרע ממנו" A HALACHA LEMA’ASE PUBLICATION

ע“פ פסקי מו“ר הרב אליהו בן-חיים שליט“א תשרי תשע“ח TISHRE 5778

TRAVELING FOR CHAG: DO I KEEP ONE DAY OR TWO? By Mosheh Aziz dates back over 2500 years, and Hashana – even in Eretz Yisrael, In the Torah1, the holidays was first instituted by the prophet Rosh Hashanah is celebrated for which we celebrate are always Yechezkel and Daniel when two days.4 prescribed to have only one day was first exiled to Bavel. Even What happens if an individual of Yom Tov at a time. For example, though today we operate on a from outside Israel travels to Israel Shavuot is kept for only one day. fixed calendar, and there is no for the holidays, or vice versa? If Sukkot only has one day of Yom longer any doubt regarding the one was traveling and moving Tov where one may not perform correct identity of the day of Yom permanently, then he would melacha, followed by six days of Tov, rabbinic law requires that we obviously begin keeping like the Chol Hamoed, followed again by continue the traditions of our native residents of his new locale. only one day of Yom Tov for ancestors and keep two days of For example, a person who moves Shemini Atzeret. This continues to Yom Tov.3 The observance of the from the Diaspora to Israel be the practice in Israel until second day – Yom Tov Sheni Shel immediately begins to observe today, as prescribed by the Torah. Galuyot – is required by rabbinic only one day of Yom Tov just like Outside of Israel, due to law. native residents of Israel. Even confusion regarding the The institution of observing a though he had been observing calculation of the calendar, the second day of Yom Tov applies two days of Yom Tov his entire life, instituted to keep a second only outside Eretz Yisrael. In Eretz once he becomes a resident of day Yom Tov. There are some who Yisrael, only one day is celebrated Israel he observes only one day. suggest2 that the practice of as the Torah prescribes. The only However, the halacha observing two days of Yom Tov exception to this rule is Rosh becomes more complex if

שגם ראש השנה איהו נוהג אלא יום א' בארץ – 3 ביצה ד: ובמשנה תורה הלכות קידוש החודש 1 פרשת פינחס ע' בבעל המאור למסכת ביצה במה שכתב על פרק ה הלכה ה 2 תשובות רב האי גאון, מובא בילקוט יוסף )עם הגמ' בדף ה ע"א )ד"ה הא לן הא להו(. 4 ביצה ד: ובמשנה תורה הלכות קידוש החודש תרגום אנגלית, מהדורת סקא( דף שסד פרק ה הלכה ז. אולם, יש ראשונים שסברו

תשמרו לעשות someone is visiting Israel but on the second day, even though regarding one who leaves his intends to return home after the he himself is not keeping the home but has in mind to return holiday. For this circumstance, second day of Yom Tov. If such a only applies to matters of minhag, Maran5 (Rav Yosef Karo, 16th person wants to work or do not matters of halacha or of century) in his responsa applied something which is forbidden on mitzvot in the Torah. Only in areas the principle from the Mishna6 that Yom Tov, he should only do so where two communities differ in one who leaves his home, but has privately and not publicly. For customs do we say that an in mind to return must observe the example, if he wishes to drive, or individual should be strict and holiday according to the custom turn on the lights, or buy or sell an observe according to the custom of where he came from, and not item, he must do so privately and of the community he came from. according to the custom of where not in a way which would However, the situation of keeping he is staying. Maran argues disrespect the Jewish community one day or two days of Yom Tov is forcefully that this is the correct where he is residing for the not only a matter of custom. In practice, and that the common holiday, since they are keeping fact, if a resident of Israel decided practice of his day was that those the second day of Yom Tov. to keep two days of Yom Tov who came from outside Israel to The Hacham Tzevi7 (Rav Tzevi instead of one day, he would be Israel for the holiday would Hirsch Ashkenazi, 17th Century) in violating a Torah commandment observe the second day of Yom his responsa disagrees with not to add on to the Torah!8 Tov, and make their own Maran’s contention the we should Therefore, Hacham Tzevi ruled minyanim with Torah reading like apply the principle that one who that those who go to Israel for the the second day of Yom Tov. leaves his home but has in mind to holidays must keep only one day Based on this principle, Maran return should observe the holiday of Yom Tov. He rules that on the says that an individual who lives in according to the custom of where second day they should pray as Israel but is spending the holiday he came from. Hacham Tzevi was they do in Israel, and they may outside Israel should keep only asked about those outside of even do melakha. one day of Yom Tov (just like his Israel who travel to Israel for the The final halacha continues to place of residence). However, holidays, if they should observe be a matter of wide-ranging Maran says that such an individual one day or two days of Yom Tov. machloket with many opinions. should not publicly do melacha He says that the principle

8 דברים פרק יג פסוק א, וכמבואר במשנה 7 שו''ת חכם צבי סימן קסז 5 שו''ת אבקת רוכל סימן כו תורה הלכות ממרים פרק ב 6 פסחים פרק ד משנה א 2

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Rav Ben-Haim’s pesak:

One who travels from outside Israel to Israel for the holidays: If the person owns an apartment or home in Israel, he should keep only one day of Yom Tov in Israel. It is as if he is going back to his own home, even if it is only temporary.9 If the person is single (unmarried), and if, in theory, if the circumstances were right (if he or she would find the perfect spouse in Israel and/or find a job, and his or her expenses would be taken care of) he or she would move to Israel, he or she should also keep only one day of Yom Tov.10 It is on this basis that students studying in yeshiva or seminary in Israel should only observe one day of Yom Tov. If an individual is married, and does not have a residence in Israel, he should be strict and not perform melacha on the second day of Yom Tov. On the second day, he should pray as though it is a regular day (or Chol Hamoed, depending on the holiday). If it is not Chol Hamoed, he must wear tefillin. However, he should not engage in any acts of melacha which are prohibited on Yom Tov such as driving or turning on lights. An Israeli who is not keeping the second day of Yom Tov may perform these acts for him.

One who travels from Israel to outside Israel for the holidays: A resident of Israel who is outside of Israel for the Yom Tov, whether single or married, should follow the opinion of Maran. In essence, he only keeps one day of Yom Tov even though he is outside Israel. The second day for him is a regular day (or Chol Hamoed, depending on the holiday) and he should pray accordingly in private. Out of respect for the Jewish community residing there, he may only perform melacha in private for himself and not in public. He should not perform acts of melacha for the other Jews residing there. He may participate in the meals and holiday rituals together with the Jews who are keeping two days of Yom Tov.

9 מורנו הרב נר''ו אמר שכך שמע מפי הרב מרדכי אליהו זצוק"ל כששאל אותו הלכה למעשה 10 שו''ת יחוה דעת חלק א סימן כו

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ELEVATORS ON SHABBAT By Sammy Banilivy arrange for his utensils to perform perpetrator would not be There are varying opinions on the work on Shabbat. Accordingly, sentenced to death (although he matter of elevator use on Shabbat since the rider performs no would face other forms of severe and Yom Tov. In this article, we will melacha (forbidden act of labor) punishment for this heinous crime). attempt to show all sides of this on Shabbat itself, Rav Henkin Rashi18 explains that since the highly debated topic in Halacha. argued to permit the use of an killing agent (the sun) was not elevator or Shabbat if no buttons present when the man tied up the One of the earliest discussions on are pushed. Rav Moshe Feinstein14 victim, the act is classified as a the use of elevators was put forth (1895-1986) agrees with Rav gerama. Similarly, when one by Rabbi Yitzchok Yaakov Weiss Henkin’s ruling that if the elevator enters an elevator, the motor is (1902-1989, author of responsa is not operated by a Jew, and a not operating; it is only when a 9 Minchat Yitzchak). Rabbi Weiss non-Jew has not been explicitly passenger is standing still that his forbade the use of all elevators on instructed to operate the weight causes an increase in Shabbat, even if they are elevator, one may ride the current. This argument was put completely automated. Rabbi elevator. forth by Rav Shlomo Zalman Weiss’s primary argument states Aurbach19, who in turn ruled that Increased Electricity Flow, that a passenger’s addition of an elevator may be used on Significant? weight in an elevator causes the Shabbat in cases of great need. elevator to work harder, thereby According to some poskim15 in the causing its motor to produce case of an elevator the increased more current. The basis for his current/electricity flow is only ruling is the case in the caused indirectly (gerama) When Gemarah10 where it states that one enters the elevator, the motor there is a rabbinic enactment to is not operating. Only at a later avoid riding on a sedan-like chair point in time, when the elevator being carried by others because it begins to ascend, does the is not in the spirit of Shabbat. He current flow increase. Performing concludes by saying that there melacha on Shabbat indirectly should be no difference between (via gerama) is permitted in cases riding in a horizontal or vertical of exceptionally great need.16 This mode of transportation. is similar to the case discussed in

Another prominent 20th century the Gemara17 of "Sof Chamah , Rav Yosef Eliyahu Henkin11 Lavo". The Gemara discusses a Rav Halpern refutes case in which one ties a man up in (1881-1973) held that it is Rav Levi Yitzchok Halpern (author permissible to ride an elevator if the desert and leaves him in the of the work “Maaliot Bishabbat”), one does not push any of the desert overnight. The sun rises the a foremost expert on the halachic buttons. Rav Henkin points out next morning and kills the victim of dynamics of an elevator, points that the Halacha12 follows the heatstroke. The Gemara states out that the weight of the 13 that this is considered an indirect opinion of Beit Hillel, who holds passenger riding on the elevator that prior to Shabbat one may murder, and therefore the

17 סנהדרין דף עז עמוד א 13 מסכת שבת דף יז 9 מנחת יצחק ג:ס 18 שם ד"ה סוף חמה 14 אגרות משה או"ח ח"ב סי' פ 10 מסכת ביצה דף כה ע"ב 19 שמירת שבת כהילכמא א:שה 15 שמירת שבת כהילכתה ח"א עמוד שה 11 כל כתבי ב:נט 16 שולחן ערוך סימן רלד 12 שלחן ערוך אורח חיים סימן רנב סעיף ה 4

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מסיע אין בו ממש assists the elevator's motor in the The Mishna21 discusses a case descent of the elevator. He writes: where two people are in a wagon Rav Shlomo Zalman Aurbach "If the passenger is responsible for that is being pulled by a mixture of attempts to bring another reason the descent, he is responsible also different types of animals, which is as to why a passenger is not for illuminating the breaks, lights a Biblical prohibition. According halachically responsible for the and other electric appliances to Halacha22 both the driver and effects of his weight on the which are activated during the the passive rider receive operation of the elevator. His basis descent.”20 punishments. From this case, Rav "זה יכול וזה אינו is the concept of Rav Halpern points out another Halpern concludes that even The Gemara24 explains that .יכול" problem associated with though someone is sitting if two people perform an act that descending via an elevator. He completely motionless and it is could have been technically writes: "When the car is purely his weight and nothing else accomplished by one person, descending with a heavy that causes it to move, he is still both parties have not violated a passenger load it may speed up liable. biblical prohibition. But, if both to a point where the counter- Performing an Action that would parties are needed to perform the force developed in the motor is have occurred either way act or labor, then both have greater than the force of the violated the prohibition. The latter electric power station. When this Rav Shlomo Zalman Aurbach זה אינו יכול וזה “ is the concept of condition occurs, the motor, discusses how, since the A discussion arises as to .”אינו יכול rather than aiding the descent, is passenger is not causing any whether someone who “assists” in used to brake the car thus direct change in the performance the performance of the action preventing dangerous of the elevator, his presence may violates a rabbinic prohibition. The overspeed. When the speed of a be considered irrelevant in the actions of the individual who is motor increases to a value above eyes of halacha. His main proof is unable to perform the melacha that for which it was designed, it from the Gemara23 which without the assistance of the other automatically becomes a concludes that one who writes party is described by the Gemara generator. Instead of consuming two letters in a certain color ink on someone who ,מסיע אין בו ממש as electrical energy it generates top of an already existing ink in the merely assists has no significance. power which is fed into the same color has NOT violated the The Halacha concludes that one electric company lines to be used prohibition of writing on Shabbat. who assists has violated no by consumers in the immediate From a halachic perspective, you prohibition25. Rav Shlomo Zalman vicinity." have not created or done Aurbach concludes that an anything new that did not exist In other words, when an elevator elevator passenger falls under before, so from a halachic is in free-fall mode, it may be category of someone who is perspective this is not classified as forced to use a certain amount of merely “assisting/aiding” to the “writing”. There is a very important counterforce to stabilize the elevator, thereby concluding that concept in Halacha called speed at which the elevator is the passenger is not responsible which means ,"מלאכת מחשבת" dropping due to the forces of for the effect his weight has on the that we are liable for violating gravity. When this occurs, an mechanics of the elevator Shabbat only when we had a electric generator is ignited as a process. mental or physical attempt to do result of the passengers’ added something new. Therefore, when Asking a Non- Jew to push the weight. one does not accomplish button Rav Halpern attempts to prove something new it is questionable Asking a non-Jew to perform a that one is responsible for his whether he has violated the law. melacha for the benefit of a Jew weight even if he is not moving.

25 יורה דעה סימן קטח סע' כא עיין ט"ז שם, 23 מסכת שבת דף קד 20 מעליות בשבת דף יא משנה ברורה סי' שכח ס"ק יא 24 מסכת שבת דף צב ע”ב 21 מסכת כלעים ח:ג 22 שולחן ערוך יורה דעה רצז:יב 5

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is not permitted.26 However, there immediately upon entering and 2. The elevator is modified so is room for leniency in the case of may pose a halachic concern. that the passengers the elderly, ill or pregnant women. weight has no impact on Shabbat Elevator the elevator’s descent. Other Halachic Concerns The Shabbat Elevator takes a few 3. Lights and sensors are Modern elevators have sensors steps to minimize halachic issues eliminated or are not and other weighing and that exist: triggered immediately measuring mechanisms that 1. The electronic weighing upon entrance. transmit information to their mechanisms in the control systems based on the elevator are passenger entering the elevator. disconnected. These sensors are usually triggered

Rav Ben-Haim’s pesak:

When planning a trip, one should do his utmost to organize his schedule around staying in an area where he will avoid performing a melacha. When necessary, it is permissible to use a Shabbat-mode elevator. Although there are authorities that discuss the difference between ascending and descending in an elevator, it is better to refrain completely from using a regularly functioning elevator on Shabbat and Chag due to the variety of prohibitions that can arise.

26 שלחן ערוך אורח חיים סימן רעו סעיף ב 6

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BIYOMO TITEN SECHARO: THE HALACHOT OF COMPENSATING YOUR WORKERS By Sammy Banilivy on the receiving end agrees to it.29 Employee Vs Contractor Introduction For instance, one may not pay his One important distinction lies The Torah, in Parashat Ki Tisa, babysitter with a supermarket between an employee and an discusses the obligation to pay voucher rather than cash, even if independent contractor. workers the wages they are due it holds the same value. The only According to Halacha, the and to do so on time. The Torah exception to this case is if the primary difference between the says: worker wholeheartedly agrees to two is whether the employer can “You shall not oppress a hired accept vouchers in payment for demand that the job is performed worker who is poor and needy, his services. In such a scenario, it is in a specific manner. If the whether he is one of your brothers permissible to pay in this manner, employer retains the right to or one of the sojourners who are in since he waives his right to be paid decide how the job is completed, your land within your towns. You in cash. Payment in something the worker is classified as an shall give him his wages on the other than money is prohibited in employee. If the employer only same day, before the sun sets, for a case of duress or if the receiver retains control over the finished he is poor and counts on it, lest he feels severely reluctant.30 An product and not over how the job cry against you to Hashem, and employer must prepare himself in is done, the worker is classified as you be guilty of sin.”27 advance to ensure that he will be an independent contractor. It is Every time we pay a worker on able to pay his worker upon worth noting that if the worker is time, even for a job as seemingly completion of the job (whether at highly specialized in his field, he is miniscule as babysitting or waiting the end of the day for a day likely an independent contractor. tables, we are fulfilling a Torah laborer, or upon producing the Another fundamental mitzvah of beyomo titen secharo, finished product for a contractor). difference lies in whether the and refrain from transgressing a If one has limited funds, it is employee is paid for his time or for prohibition of bal talin.28 prohibited to spend money if, as a the job. The Rama31 writes, “If one Considering that nearly every result, one will be unable to pay his is hired for a period of time he is induvial must deal with the workers on time. considered a po’el, whereas if he concept of compensating is hired to teach a child a book he workers in some form, it is very Defining the Types of Laborers is a kablan. Only when he must important to be familiar with the In addressing the question of work for hours, so that the details pertaining to this law. when a laborer must be paid for employer effectively owns his According to Jewish law, an his work, the first issue that requires time, is he considered a laborer.” employee should be attention is how the laborer is compensated with money, not a defined. cash equivalent, unless the person

31 חושן משפט סימן שלג סע' ה 29 חושן משפט סי' שלו סע' א 27 דברים כד, יד-טו 30 תוספות מסכת בבא קמא דף ט ע"א 28 ויקרא יט, יג 7

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Paying a Laborer (po’el) workday, before sunset, so that he The Torah passage referring to can purchase basic requirements Paying a Contractor (Kablan) payment on time seems to be for himself and his household. Due to the nature of the referring to a time-based laborer Likewise, the Shulchan Arukh33 mitzvah—the basic requirement (po’el): “You shall give him his rules: “What are their times? A day to ensure that workers are paid on wages on the same day, before laborer must be paid during the time—it was clear to the Sages of the sun sets, for he is poor and subsequent night, and a night the that the obligation of counts on it, lest he cry against laborer during the subsequent timely payment applies not only you to Hashem, and you be guilty day”. The Shulchan Arukh to a laborer, but also to a of sin.” continues by explaining what the contractor who is hired to perform The negative commandment halachah would be for a worker a specific job. However, unlike a is clearer: “You shall not leave the who works for a number of hours po’el, a contractor does not need wages of a laborer (sachir) with during the day or night (and not to be paid until he completes the you until the morning.” for the entire day or night): “If he entire job he was assigned. The Ramban32 explains that the completes his work in the day, he straightforward explanation of the must be paid on that day. And if words is that a day-laborer must at night, he must be paid during be paid upon completing his that same night.”

SUMMARY

Today, many forms of compensation exist. However, as discussed above, it is still an employer’s Halachic obligation to pay his workers in a timely and appropriate fashion and to abide by all the terms of his workers contract in an appropriate manner.

לעילוי נשמת האשה הכשרה שגדלה בניה ובנותיה בדרכי התורה ורדה בת בן-ציון ע"ה

33 חושן משפט סי' שלג סע' ד 32 רמבן על התורה פרשת דברים 8

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ABOUT THE AUTHORS

Rabbi Mosheh Aziz is an assistant rabbi for the Mashadi Jewish Community and 5th grade teacher at Long Island Hebrew Academy in Great Neck. He received his Yoreh-Yoreh Semicha both from Harav Eliyahu Ben-Haim and from ’s Rabbi Isaac Elchanan Theological Seminary, and also completed a Master’s Degree in Social Work at Yeshiva University’s Wurzweiler School of Social Work. Recently, he co-authored his first book with his chavruta Avraham Ben-Haim, Shenot Haim, a practical guide to Hilchot Avelut based on the teachings of Harav Ben Haim.

Sammy Banilivy is a graduate of Yeshiva University and a musmach of Harav Eliyahu Ben-Haim Shlita. After completing his undergraduate degree, he returned to Israel to study in Darchei L’Horaah Rav . He is currently working as an accountant.

GENERAL EDITOR- AVRAHAM BEN-HAIM

For questions about this publication, or to contact the authors, please email: [email protected]

Tishre 5778

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