Reflecting on When the Arukh haShulhan on Orach Chaim was Actually Written

Reflecting on When the Arukh haShulhan on Orach Chaim was Actually Written: Citations of the in the Arukh haShulhan

Michael J. Broyde & Shlomo C. Pill

Rabbi Michael Broyde is a Professor of Law at Emory University School of Law and the Projects Director at the Emory University Center for the Study of Law and Religion. Rabbi Dr. Shlomo Pill is a Visiting Assistant Professor of Jewish, Islamic, and American Law and Religion at Emory University’s Candler School of Theology and a Senior Fellow at the Emory University Center for the Study of Law and Religion. They are writing a work titled “Setting the Table: An Introduction to the Jurisprudence of Rabbi Yechiel Mikhel Epstein’s Arukh Hashulchan” (Academic Studies Press, forthcoming 2020).

We post this now to note our celebration of the publication of תערוך לפני שלחן: חייו, זמנו ומפעלו של הרי”מ עפשטיין בעל ערוך Set a Table Before Me:The Life, Time, and Work of“) השלחן Rabbi Yehiel Mikhel Epstein, Author of the Arukh HaShulchan” .הי”ד ,see here) (Maggid Press, 2019), by Rabbi Eitam Henkin) Like many others, we were deeply saddened by his and his wife Naamah’s murder on October 1, 2015. We draw some small comfort in seeing that the fruits of his labors still are appearing. in his recently published הי”ד According to Rabbi Eitam Henkin book on the life and works of Rabbi Yechiel Mikhel Epstein, the first volume of the Arukh Hashulchan on Orach Chaim covering chapters 1-241 was published in 1903; the second volume addressing chapters 242-428 was published in 1907; and the third volume covering chapters 429-697 was published right after Rabbi Epstein’s death in 1909.[1] Others confirm these publication dates.[2]

The Mishnah Berurah, Rabbi ’s commentary on the Orach Chaim section of the Shulchan Arukh was published in six parts, with each appearing at different times over twenty- three-year period. Volume one was published in 1884, volume three in 1891, volume two appeared in 1895, volume four in 1898, volume five was published in 1902, and volume six in 1907.

We suspect that while the first volume of the Arukh Hashulchan on Orach Chaim did not appear until 1903, Rabbi Epstein wrote this work some time before this, and its publication and was delayed for economic and government censorship reasons. Rabbi Eitam Henkin notes (in the above biography) that Rabbi Epstein made mention of the very difficult time he had finding the funds to publish his work. Rabbi Epstein himself wrote in an 1886 letter, “to my great distress, I am unable to publish [the next installment of the Arukh Hashulchan] due to the lack of funding . . . publishing is exceedingly expensive.”[3] The high cost of publishing and limited funding actually led to Rabbi Epstein’s initially publishing the Arukh Hashulchan in numerous short pamphlets, each covering just a few of the Shulchan Arukh’s topic headings, rather than in larger volumes. Eventually, as funds became available, these pamphlets were combined into larger volumes, organized around the “four-pillars” framework ofhalakhah used by other rabbinic jurists since Rabbi Karo.[4] Likewise, Rabbi Henkin uncovered correspondence in which Rabbi Epstein bemoaned that long-before completed manuscripts of the Arukh Hashulchan were languishing in St. Petersburg awaiting review and approval by Russian government censors.[5]

Appreciating the realities of the funding- and censorship- related delays with which Rabbi Epstein had to contend helps rectify what Rabbi Meir Bar-Ilan described as Rabbi Epstein’s furiously productive writing schedule with the nearly four decade span between when he began writing the Arukh Hashulchan in 1870 and the publication of the final volume ofArukh Hashulchan: Orach Chaim in 1909 (and other volumes considerably after his death by his daughter[6]). Rabbi Meir Bar Ilan described his grandfather’s process as follows:

My grandfather sat each day in the room designated as the local rabbinic courtroom together with his two rabbinic judge colleagues from morning until night, save for two hours in the afternoons . . . He sat at his table with a chair next to him upon which he kept four books related to the topic he was currently dealing with: a volume of ’Mishnah , a volume of the Arbah Turim, the Shulchan Arukh, and a small edition of the . And thus, looking here and there, he wrote his book, Arukh Hashulchan, page after page. Occasionally, he would get up and take out another book to look at . . . This book, the Arukh Hashulchan, which is foremost in its genre, was printed directly from the first draft manuscripts, exactly as they were initially produced by the author . . . without edits, erasures, or rewrites.[7]

Even if somewhat hyperbolic in its recollection, the pace of work described by Rabbi Meir Bar-Ilan certainly does not suggest that the writing of the Arukh Hashulchan would have taken more than thirty years. It is likely that the text of Rabbi Epstein’s monumental restatement of halakhah was written and prepared long before it finally appeared in print.[8]

So, when was the Arukh Hashulchan on Orach Chaim actually written? We suspect it was written after 1891 and before 1895.

As noted, the first volume of theMishnah Berurah was published in 1884, and the Arukh Hashulchan cites it thirteen times. Mishnah Berurah volume three was published seven years’ later in 1891 and is also cited by theArukh Hashulchan—in this case, twelve times. The Arukh Hashulchan cites none of the other four volumes of the Mishnah Berurah, however, which indicates that Rabbi Epstein did not have them. That would indicate that Rabbi Epstein had completed his manuscript of Arukh Hashulchan on Orach Chaim before the 1895 when the next installment of the Mishnah Berurah appeared. We see in Rabbi Eitam Henkin’s work (p. 312) that he proposes a similar observation, and we are gratified that he shares this inference. While over a decade would pass before theArukh Hashulchan on Orach Chaim was fully published, and while by this time the Mishnah Berurah, too, was in print in its entirety, Rabbi Meir Bar-Ilan’s account of Rabbi Epstein’s writing process suggests that once written, theArukh Hashulchan manuscripts were not significantly revisited or edited by Rabbi Epstein. It is not surprising, then, that the Arukh Hashulchan on Orach Chaim does not include references to sections of the Mishnah Berurah that appeared only after 1895.

We are aware of 36 (or 37, if one counts the double reference in number 5, below) references to the Mishnah Berurah in the Arukh Hashulchan[9] none of which are particularly important to the work, and only in one of them (319:22) does the Arukh Hashulchan seem to be actually reacting to something that the Mishnah Berurah directly cited in his own name. The citations to the Mishnah Berurah in the Arukh Hashulchan themselves generally look like (to quote Rabbi Bar-Ilan) “another book to look at.” Furthermore, it only looks like he did so in certain areas deeply and other areas much less. There are six quoted in hilkhot tzitizit, one in hilkhot tefillin, two in hilkhot shema, four citations over three simanim in hilkhot tefilla, and then occasional references scattered throughout hilkhot . This sparse citing suggests that the Arukh Hashulchan neither studied theMishnah Berurah, nor is responding to it systemically. So to, the only explanation for the lack of citation to volumes two, four, five and six is that Rabbi Epstein did not have them at the time he was producing his manuscript of the Arukh Hashulchan on Orach Chaim. (We see that Rabbi Eitam Henkin, in his work makes a similar observation on pages 311-313.)

Below is a list of all the cases we are aware of in which the Arukh Hashulchan actually has and cites and quotes this Mishnah Berurah.

1. Arukh HaShulchan 10:4 contains a reference toBiur Halakhah 10 s.v. veyesh lah. 2. Arukh HaShulchan 10:7 contains a reference toBiur Halakhah 10 s.v. ela im ken. 3. Arukh HaShulchan 10:8 contains a reference toBiur Halakhah 10 s.v. veain lah kenafot. 4. Arukh HaShulchan 11:8 contains a reference toBiur Halakhah 11 s.v. vehu. 5. Arukh HaShulchan 11:22 contains a reference to both Mishnah Berurah 11:27 and 11:29 and the Biur Halakhah, which explains this. 6. Arukh HaShulchan 12:4 contains a reference toBiur Halakhah 12 s.v. im nepseku. 7. Arukh HaShulchan 14:5 contains two references to Biur Halakhah 14 s.v. hetil yisrael. 8. Arukh HaShulchan 25:23 contains a reference toBiur Halakhah 25 s.v. vehakhi nohug. 9. Arukh HaShulchan 25:26 contains a reference to Mishnah Berurah 44. 10. Arukh HaShulchan 62:3 contains a reference toBiur Halakhah 62 s.v. yachol lekrotah bekhol lashon. 11. Arukh HaShulchan 76:21 contains a reference toBiur Halakhah s.v. kara bemakom. 12. Arukh HaShulchan 76:4 contains a reference to Mishnah Berurah 77:8. 13. Arukh HaShulchan 79:11 contains a reference to Mishnah Berurah 5. 14. Arukh HaShulchan 79:17 contains a reference to Mishnah Berurah 79:29 or Biur Halakhah s.v. aval chalul. 15. Arukh HaShulchan 87:7 contains a reference to Mishnah Berurah 9. 16. Arukh HaShulchan 89:23 contains a reference to Mishnah Berurah 89:22. 17. Arukh HaShulchan 89:24 contains a reference to Mishnah Berurah 89:24 and Biur Halakhah s.v. vekhen okhlin umashkin. 18. Arukh HaShulchan 91:3 contains a reference toBiur Halakhah 91 s.v. hoyil vekhisah. 19. Arukh HaShulchan 91:4 contains a reference toBiur Halakhah 91 s.v. yatza. 20. Arukh HaShulchan 245:8 contains a reference to Mishnah Berurah 245:23. 21. Arukh HaShulchan 247:13 contains a reference to Mishnah Berurah 247:18. 22. Arukh HaShulchan 262:4 contains a reference to Mishnah Berurah 262:12. 23. Arukh HaShulchan 263:19 contains a reference to Mishnah Berurah 263:49. 24. Arukh HaShulchan 268:6 contains a reference toBiur Halakhah 268 s.v. veshelo bekavanah. 25. Arukh HaShulchan 271:30 contains a reference to Biur Halakhah s.v. vehu rubo. 26. Arukh HaShulchan 275:2 contains a reference toBiur Halakhah 275 s.v. leor haner. 27. Arukh HaShulchan 301:122 contains a reference to Mishnah Berurah 301:176–177. 28. Arukh HaShulchan 302:32 contains a reference to Mishnah Berurah 303:87-88. 29. Arukh HaShulchan 302:9 contains a reference to Mishnah Berurah 301:2, 10, 11 and Biur Halakhah s.v. shaveh aleha. 30. Arukh HaShulchan 306:22 contains a reference to Mishnah Berurah 306:16 and Biur Halakhah s.v. beketav shelahem. 31. Arukh HaShulchan 319:19 contains a reference to Biur Halakhah 319 s.v. le’ekhol meyad. 32. Arukh HaShulchan 319:22 contains a reference to Mishnah Berurah 319:21 and Biur Halakhah s.v. beshinui. 33. Arukh HaShulchan 321:10 contains a reference to Mishnah Berurah 321:37–38. 34. Arukh HaShulchan 328:39 contains a reference to Mishnah Berurah 328:145. 35. Arukh HaShulchan 330:7 contains a reference toBiur Halakhah s.v. kol sheloshah yamim. 36. Arukh HaShulchan 336:21 contains a reference to Biur Halakhah 336 s.v. mutar lelakh.

A question that can only be speculated about is whether the Arukh HaShulchan is ever responding without citation to the Mishnah Berurah (for example, in the case of married women and hair covering in the synagogue in 75). Rabbi Eitam Henkin (p. 314) quotes the famous observation of this father, Rabbi Yehuda Herzl Henkin in Shut Benai Banim 2:18 that there are countless times where the Aruch HaShulchan is responding, without citing, the Mishnah Berurah. Rabbi Eitam Henkin then provides a list of such possible cases.

[1] See Rabbi Eitam Henkin, Ta’arokh Lifanai Shulchan: Chayo Zemano U’mepa’alo Shel Harav Yechiel Mikhel Epstein Baal Arukh Hashulchan, pp. 245-246.

[2] See as well the following article by Rabbi Eitam Henkin where he makes this claim as well:

ספרי ערוך השלחן – סדר כתיבתם והדפסתם’, חצי גבורים – פליטת‘ סופרים, ז (תשע”ד), עמ’ תקטו-תקלו

Copies of the first editions can be found in the Hebrew University Library.

[3] Kitvei Ha-Arukh Hashulchan, no. 104.

[4] See Rabbi Eitam Henkin’s book at pages 234–235.

[5] See Kitvei Ha-Arukh Hashulchan, no. 56.

[6] See Printing of the Arukh HaShulhan: The Missing Line About Rabbi Epstein’s Daughter for more on the posthumous publication of volumes.

[7] Rabbi Meir Bar-Ilan, From Volozhin to Jerusalem 269-271 (1939-1940) [Hebrew]. at pages תערוך לפני שלחן See Rabbi Eitam Henkin’s work [8] 229–257 for a detailed discussion of the publication difficulties and schedule of the Arukh HaShulchan.

[9] Twice Arukh Hashulchan refers to the work by its formal name, Mishnah Berurah, and all the remaining times by an .המ”ב or מ”ב acronym

There is No Bracha on an Eclipse

There is No Bracha on an Eclipse By Rabbi Michael J. Broyde Rabbi Michael Broyde is a law professor at Emory University School of Law and the Projects Director in its Center for the Study of Law and Religion. His most recent Torah sefer is entitled “A Concise Code of Jewish Law For Converts”. This letter was written to someone after a shiur on why there is no bracha on seeing a solar eclipse. 1. You are correct that I said that I thought there was no bracha on an eclipse. I had not seen Rabbi Linzer’s teshuva at the time that told that to you this, as it was not circulating on the internet at the time that I prepared for my shiur and I did not see it until Sunday, the day after the shiur. I try to cite as much as relevant in these classes and his thoughts are clearly relevant. He is a stellar writer on interesting topics of halacha and I read his material consistently. I had seen that Rabbi Eliezer Melamed in Peneni Halacha Laws of Brachot 15:6 and note 5 which does permit a bracha on an eclipse. 2. Having said that, I would not change my mind at all in light of Rabbi Linzer’s teshuva and remain opposed to reciting a bracha over an eclipse for many reasons explained below. 3. First, as many have noted, the giants of halacha are quite divided over the question of whether the listing in the is paradigmatic or particular. Some make no blessings other that for matters listed in the codes and other treat them as examples. That dispute alone inspires me to be cautious, although I could be persuaded that the paradigmatic approach is correct and one could then make a bracha on a waterfall. I have yet to see a clear proof that such a view is correct, but it does seem more intuitive.[1] Yet, safek brachot lehakel is present. 4. Second, and more importantly, if you look closely in the classical achronim, you see not a single achron who actually endorses saying a bracha on an eclipse. Not a single one. It is true that there is a dispute about whether the list in the Mishna is all inclusive or not (as many note, see Shar HaAyin 7:6), but even those who are of the view that the Mishnah’s list is merely examples, not a single achron actually endorses making a bracha on an eclipse as opposed to a volcano or some other natural wonder, which some clearly do permit a bracha on. The group that favors expansive brachot on natural wonders endorse stalagmite caves, waterfalls, water geysers, volcanoes and many more: but not eclipses. If you look, for example in Shar HaAyin 7:6 (the classical work on this topic) one sees this most clearly: even those who endorse making brachot on waterfalls, or other amazing facets of if one make a bracha on an ((נסתפק creation are uncertain that ,נסתפק eclipse, and we all know that when a is posek does not make a bracha.[2] a. This contrast is made clear in the context of Rabbi Shmuel Halevi Wosner — who is the most clear and direct articulator of the view that list of wondrous sightings in the Shulchan Aruch are just examples, and one makes the bracha of oseh maaseh bereshit even on other wonders. In Shar HaAyin page 431 he states directly that one makes a blessing on many wondrous things unlisted in the codes and he explains that “Volcanos are not present in our lands and thus are unmentioned in the Shulchan Aruch” and that it is “obvious” that one makes a blessing on them. However, on eclipses he states “solar eclipses are mentioned a few times in the Gemera, and thus on the question of whether one needs to make a bracha when one sees them, needs more thought.[3]” He does NOT endorse making a bracha on an eclipse. In fact, I am unaware of anyone other than Rabbis Melamed and Linzer who actually endorse the view in favor of making a bracha on an eclipse, (rather than merely ponders the possibility of such a bracha). Rabbi Wozner’s point is important: this is not a modern issue – eclipses were well known for a few millennium, and silence in the Jewish Law codes is telling. To the best of my knowledge the dispute about the eclipses is between two views: (1) Absolutely Not and (2) Maybe. There is no (3) Yes view in the classical for eclipses. (That is why the listing of reasons why an eclipse might be different from other wonders below is important.) 5. Why is an eclipse different from a stalagmite cave or a volcano? I could think of a few reasons from a halachic perspective, even to those who believe that the Mishna’s list is not inclusive. a. Many perceive them to be a siman raah – a bad sign, either because of superstitious reasons or because darkness in the middle of the day is practically bad – and there is no blessing on bad omens (as Rabbi is quoted in Mesorat Moshe 2:51). b. Because one sees nothing in an eclipse (as it is an absence of light, rather than a presence) and we do not make brachot on absences. c. Because the bracha of oseh maaseh breseshit does not apply to things whose existence can be mathematically predicted, but are merely rare: eclipses are not anomalies, but a product of the universes’ cycle of life, and more under the berkat hachama rule. d. Because full eclipses are exceedingly rare and partial eclipses are almost impossible to “see” without modern eclipse glasses (a 75% eclipse hardly is noticed on a functional level) and are naturally invisible. e. For other reasons that are less obvious related to the fact that these have to be wonders from “creation” and these are not from creation. f. Because some thought that eclipses were punishments and thus no blessing was ordained.[4] 6. Based on all this, one can say that eclipses could be different from all other created natural anomalies as a matter of Jewish law and are not covered by the general idea of a wonder such that a blessing should be made. To my surprise, even as the primary source of the view that one can make a bracha on wonders beyond the Mishna’s list is Rabbi Wozner and he explicitly notes that eclipses are different from volcanoes, waterfalls, geysers and many other rare natural phenomena, the secondary codifiers of the last generation have completely missed this distinction. Instead both Shar HaAyin 7:6 and Penenia Halacha Laws of Bracha 15:5 link the dispute about volcanoes and waterfalls with eclipses and state that one who permits a bracha for volcanoes and waterfalls would do so for eclipses as well, when in fact that is incorrect. Eclipses were known in Talmudic times and yet no bracha was noted: that bothers Rabbi Shmuel Wozner, who permit a bracha on an erupting volcano, not to permit a bracha to be recited on an eclipse, by noting that he is uncertain if a bracha is proper.[5] 7. Additionally, let me add a thought of my own about modern times and bracha’s over wonders. The Shulchan Aruch OC 228:3 limits even the mountains that one can make a bracha on to such mountains in which the hand of our Creator is clear ולא על כל הרים וגבעות מברך, אלא דווקא על הרים) .and apparent I think in our modern (.וגבעות המשונים וניכרת גבורת הבורא בהם times, with modern science explaining all of these events, no mountains or valleys ever meet the criterial of make it clear (to normal people) that God is in charge of the universe. Based on this, I would not make any extensions of this halacha beyond its minimums recorded in the Shuchan Aruch because I think that the test for determining whether we can וניכרת גבורת הבורא add to this list is and make a bracha is Given the secular environment we live in, I think no .בהם natural astrological events meets that bill in modern times so I only – at most — make such brachot on the things that the halachic tradition directly directs me to do, like lighting or thunder or great mountains and certain rivers. I would not make such a bracha on an erupting volcano or a solar eclipse, as seeing such does not cause normal people in my society to experience God. (There are two formulations of my claim, each slightly different. The first is experiential, in that I think that most people in my society do not sense any awe of God at an eclipse. Second, even if any particular person does (and I do not doubt that some do), they cannot make the bracha since most people in America do not so sense God through these events and that is the halachic test found in the Shulchan Aruch. The sense of wonder has to be obvious to normal people and that is lacking in the world we live in. 8. Finally, all attempts to actually endorse making a bracha on an eclipse run directly against the combined force of both (1) the minhag, which is not to make a bracha and (2) These two together make it .ספק ברכות להקל the rule of difficult for any moreh horah to argue convincingly that there is clear proof that bracha should be made. 9. I have consciously not engaged with Rabbi Linzer’s very worthwhile point (which I more or less agree with) that “we strive to bring our religious lives and our halakhic lives in sync” exactly because (as he himself notes) this calculus is limited to cases where there is a dispute between poskim about what to do. Here, to the best of my knowledge, there is no dispute and since there is no classical halachic authority who actually says “yes make a bracha on an eclipse” there is no grounds to examining very important meta issues used to resolve disputes (since there is no dispute). 10. Based on all of this, I would not make a bracha on an eclipse. 11. Having said that, I am happy to endorse other forms of religions veneration for one who feels such wonder. .שם ומלכות a. One can certainly say this bracha without b. I am also somewhat comfortable with someone making this blessing in Aramaic (see Shulchan Aruch OC 167:10, 187:1 and 219:4) although I am aware of the view of Iggrot Moshe OC 4:20:27, but find the view of the Aruch Hashulchan OC 202:3 more analytically compelling. c. Both the suggestions of Rabbi Chaim David Ha-Levi (Responsa Aseh Lecha , 150) that one recited va-yevarech david (Chronicles. 1:29:10) and adding “who performs acts of creation” at the end and of Rabbi David Lau, current Ashkenazic Chief Rabbi of Israel, to recite Tehillim 19 and 104 are completely reasonable as well. d. Other innovative non-bracha based solutions are also reasonable. 12. On the other hand, those who attended an eclipse – I myself traveled to Rabun Georgia, an epicenter for the total eclipse and sat in total darkness at for three minutes in the middle of the day and did not feel any closer to the Almighty as Creator of the World during the eclipse than I did after or before — can feel free to engage in no innovative religious observance at all without feelings that they are deficient in any way. 13. I welcome readers to direct me to a source written by an achron which directly discusses eclipses and permits a bracha. (Please feel free to email me.) So far, I have only seen that the group that permits a bracha for an eclipse does so based on a putative ruling of Rabbi Wozner and others to permit such a bracha, which upon closer examination is not present. I am willing to ponder the possibility that there is an achron who permits such a bracha even as others do not – that posek argues that all wonders deserve a bracha and the listing in paragraph 5 above about why eclipses are different from other wonders is incorrect – To the best of my knowledge, that is a theoretical position that is not actually adopted.

[1] I am inclined to the more expansive view because the formulation in the Beit Yosef in Tur OC 228. [2] This is an important point. Rabbi Wozner has the right as a morah horah to assert that he rules that the mishna’s list is not inclusive and that volcanoes get a bracha (which is exactly what he says, as does Rabbi Nissan Karletz in the same work on page 466). When one asks him “how can he rule that a bracha needs to be recited, others disagree, and then the matter is in doubt”, Rabbi Wozner responds by stating that he sees no doubt and thus he feels a bracha should be recited. When Rabbi Wozner states that he has doubt about this matter, he is being clear that this is exactly a case of doubt and no blessing should be recited. [3] Let me add that eclipses are discussed in the and codifiers as well, with no mention of a bracha. See Darchai Moshe on Tur OC 426 and the works cited by Rabbi Linzer in footnote 2 of his teshuva (see here). [4] It is clear from the recounting of the Chafetz Chaim that he did not say a bracha on an eclipse. See here. [5] This is found both Shar HaAyin and Penine Halacha as well as Rabbi Linzer’ teshuva. Shaar Haayin 7:6 is strict on the whole matter and does not permit a bracha practically on even volcanoes an water falls, so the mistake in that work – linking volcanoes and eclipses — is merely one of conceptual המברך לא הפסיד classification, but Peninia Halacha rules that (“one who makes the blessing is doing nothing wrong” for “volcanic eruptions, geyser, waterfalls and both lunar and solar eclipses” when it is clear to this writer that the source he is sighting – he cites Rabbi Wozner! – does not adopt that view. (On page 466 of Shar HaAyin, Rabbi Nissan Karlitz is asked “Is the blessing oseh maaseh bereshit similar in that things that are wonders and not found in the Shulchan Aruch like an erupting volcano or a spouting geyser or other similar phenomena, also requiring a bracha” and Rabbi Karlitz answer “Logic indicates that such is the case also,” but no explicit discussion of eclipses, which could be different. A Note Regarding Dayan Simcha Zelig Rieger’s View of Opening a Refrigerator Door on Shabbat

A Note Regarding Dayan Simcha Zelig Rieger’s View of Opening a Refrigerator Door on Shabbat Rabbi Michael J. Broyde Introduction

Thank you to Rabbi Yaacov Sasson for his comments on footnote 59 of the article “The Use of and Yom Tov” found in the Journal of Halacha and Contemporary Society, 21:4-47 (Spring 1991) co-written by Rabbi Jachter and myself. It is always nice to have people commenting on articles written more than 25 years ago.[1] Before delving into the halacha, it is worth clarifying some preliminary facts – in particular, whether refrigerators even had automatic lights during the first half of the 1930s. Some commenters have suggested that such lights were not yet present, or that they were limited to rare and expensive refrigerators. This is not correct. I reproduce below a wide variety of newspaper ads from the early 1930s that show that a range of refrigerator models by many manufacturers at various price points featured automatic interior lights (see attachments here). These include a Frigidaire priced at $157.50, a GE priced at $99.50, a Majestic model with no price, a Frigidaire priced at $119.50, a Leonard priced at $114.75 and many more.[2] And while some of the publications appear targeted to the upper class, many others are clearly meant for wider audiences – particularly those available on installment plans (“$5 down, 15¢ a day”; “Nothing down! 20¢ a day!”; “$7 Initial Payment – enables you to enjoy any of these refrigerators immediately. Investigate our convenient budget payment plans.”).[3] Thus, even in the early 1930s, interior lights were a readily available feature in the refrigerators that were becoming increasingly common in American households.[4] Claims that “normal” or “typical” refrigerators did not have lights are belied by the many ads taken from diverse periodicals that are reproduced here.[5] A Summary of the Original Article

The relevant section of the article is about using refrigerators on Shabbat, and states in part: A. Refrigerators The opening of a refrigerator door on Shabbat has been the topic of vigorous debate in past decades. Opening the refrigerator door allows warm air to enter, thus causing a drop in temperature which causes the motor to go on sooner. If one accepts that turning the motor on during Shabbat is prohibited, then it would appear that opening the refrigerator door on Shabbat when the motor is not already56 running is prohibited. Indeed, many prominent rabbinic decisors have adopted this position.57 However, many authorities58 assert that one is permitted to open a refrigerator even when the motor is off.59 The footnotes to the above-quoted text observe: 56. Opening the door when the motor is already running is permissible because all that is done then is causing the motor to stay on for a longer period of time; see also section V. 57. See Har Zvi 1:151; Mishnat Rabbi Aharon, 1:4; Minchat Yitzchak 3:24; and Chelkat Yaakov, 1:54. Rabbi Ovadia Yosef, Yabia Omer 1:21 and Rabbi Yosef Eliyahu Henkin, Edut Leyisrael p. 152, recommend that one be stringent in this regard, although they both accept that it is permissible to open a refrigerator even when the motor is off. 58. Rabbi Shlomo Zalman Auerbach’s argument can be found in his Minchat Shlomo pp. 77-91. Others who are lenient include Rabbi Waldenberg,Tzitz Eliezer 8:12 and 12:92, Rabbi Uziel, Piskei Uziel no. 15. Rabbi Aharon Lichtenstein reports that Rabbi Joseph B. Soloveitchik subscribes to the lenient position in this regard. 59. Almost all authorities accept that it is forbidden to open a refrigerator when the light inside will go on. Notwithstanding one’s lack of intent to turn on the light when opening the refrigerator, this action is forbidden, since the light will inevitably go on (pesik resha). However, Rabbi S.Z. Rieger (the Dayan of Brisk) rules leniently in this regard (Hapardes 1934, volume three). His lenient ruling is based on two assumptions. First, he states that when the forbidden act has no benefit to the one who performs it, and it is only incidental (psik resha d’lo nicha leh), no prohibition exists. Rabbi Rieger assumes that the lenient ruling of the Aruch (see Aruch defining the word “sever“) is accepted. Second, Rabbi Rieger states that the light in the refrigerator provides no benefit to the one opening the door. His first assumption is disputed by most authorities (see Yabia Omer 1:21,5; Minchat Shlomo p. 87). The consensus appears not to accept theAruch’s ruling as normative. The second assertion appears to be entirely incorrect. The light serves as a convenience to locate items in the refrigerator and cannot be described as having no benefit to one who opens the door. Most authorities, however, maintain that it is acceptable to ask a Gentile to open the door of the refrigerator even if the light will go on: see Iggerot Moshe, Orach Chaim 2:68; and Shemirat Shabbat Kehilchatah pp. 100-101.So too, it would appear to these authors that one could allow a fellow Jew to open the door when he does not know the light will go on, as that is only in the category of mitasek (unknowing) and thus permitted; see e.g.,Rabbi Joseph B. Soloveitchik, Shiurim Lezeicher Avi Mori, p.30 n. 58; but see Teshuvot R. Akiva Eiger #9. (bold emphasis added) Rabbi Sasson’s Criticism

Rabbi Sasson is commenting on the words in the second paragraph of footnote 59 (the bold sentences above). He proposes that the article is wrong in its understanding of the view of Dayan Simcha Zelig Rieger who did not, he claims, permit the turning on of the light in the refrigerator, but only the motor. Rabbi Sasson states: Lo hayu dvarim me-olam. Rav Simcha Zelig did not permit opening a refrigerator when the light inside will go on. Rav Simcha Zelig wrote (Hapardes 1934, num. 3, page 6) that it is permitted to open the refrigerator since the intention is to remove an item, “v’aino mechavein lehadlik et ha-elektri.” The authors misinterpreted this statement to be a reference to an electric light in the refrigerator. And his argument is: However, it is clear from a simple reading of the articles to which Rav Simcha Zelig was responding that the topic under discussion at the time was triggering the motor by opening the door and allowing warm air to enter; lights and light bulbs are not mentioned at all. In the first of those articles (Hapardes 1931, num. 2, page 3), the language of “hadlaka” is used in reference to the refrigerator motor, and Rav Simcha Zelig’s language of “lehadlik et ha-elektri” appears to parallel the language used there. As an additional proof, he notes: In the second of those articles (Hapardes 1931, num. 3 page 6), the act of triggering the motor is referred to as “havara” and “havara b’zerem ha-chashmali“, and Rav Simcha Zelig used a similar nomenclature, “lehadlik et ha-elektri” to refer to triggering the motor. Based on this Rabbi Sasson concludes: Rav Simcha Zelig’s position was that it is permitted to open a refrigerator when the motor will then go on, as triggering the motor is classified as a psik resha d’lo ichpat lei, which is equivalent to lo nicha lei. Rav Simcha Zelig never addressed opening a refrigerator when the light will go on. (footnotes omitted) A Review of the Teshuva and a Defense of the Second Paragraph of Footnote Fifty Nine

The relevant paragraph of the teshuva by Dayan Rieger reads simply: ובדבר התבת קרח מלאכותי נראה כיון דכשפותח את דלת התיבה הוא כדי לקבל משם איזו דבר ואינו מכיון להדליק את העלעקטרי הוי פסיק רישיה דלא איכפת ליה אפילו להדליק אם הוא באופן שהוא פסיק רישיה.

And in the matter of the artificial [electric] icebox it appears that since when one opens the door of the box to get something from there and does not intend to ignite (light) the electricity it is a psik resha that he does not care about, even to light in way that is a psik resha. The rest of the teshuva by Dayan Rieger presents his view of the halacha in cases in which there is a psik resha d’lo ichpat lei, which is that this is a dispute between Tosaphot and the Aruch. Furthermore, Rav Chaim M’brisk maintains that the Rambam is in agreement with the Aruch, and the custom is like the Aruch; therefore, it is completely proper to rely on the Aruch in cases in which there is a psik resha d’lo nicha lei.[6]

A careful reader of the first sentence, and indeed of the entire teshuva, can sense that there is some ambiguity here about the electrical object referred to, since Dayan Rieger does not specify the source or consequence of igniting the electricity. I am inclined to reinforce the original explanation that it was the light based on the following three observations. First, the many articles in Hapardes do not necessarily use as interchangeable the terms zerem chashmali or chut chashmali or chut elektriki with the term hidlik et haelektrik – which seems to have a different connotation. Particularly in the Yiddish spoken culture of that time, the term “electric” seems to have meant “lights” and not electricity or motor. Rabbi Sasson’s claim that the phrase “havara b’zerem ha-chashmali” and Rav Simcha Zelig phrase “lehadlik et ha-elektri” are identical is, I think, not indubitably correct. Elektriki, according to my colleague at Emory, Professor Nick Block, more likely means the light than anything else in 1930s Yiddish. This is particularly true in my opinion, when added to the word “le’hadlik,” a word of ignition. Second, and much more importantly, the halachic analysis presented by Dayan Rieger addresses a direct action, while everyone else who discusses the motor speaks about an indirect action. This is very important to grasp. The light in the refrigerator immediately turns on when the door is opened, as the opening of the door also opens the switch that controls the incandescent light. Not so the motor, which is controlled by a thermostat; opening the door usually leads to an increase of air temperature inside the refrigerator, which eventually directs the motor to go on. As the editor of Hapardes notes (in volume 5), there are persuasive grounds to permit the opening of the refrigerator door based on two distinct principles of enormous halachic importance that are deeply grounded in factual reality: davar she’eno mitkaven and grama; it is based on this that many poskim to this day permit a refrigerator door to be opened, as our article from 25 years ago notes. Simply put, many times when the refrigerator is opened, the motor does not go on at all, since for the motor to go on immediately, the refrigerator must be at just a certain temperature such that the warm air immediately causes the thermostat to turn the motor on. Sometimes the motor is already on, sometimes the motor is not hastened, and sometimes there is a very long time delay. This reality gives rise to important halachic grounds discussed in our article and quoted by many poskim, including many before and after the great Dayan Rieger. But Dayan Rieger makes no mention of this: he does not discuss grama, or davar she’eno mitkaven or any of these other factors that apply to indirect action. Instead, he assumes that when the refrigerator door is opened, the electrical object under discussion is always ignited, and it does so immediately and directly, thus causing a melacha. This is the formulation of pesik resha, which inexorably causes melacha each and every time — in contrast to grama, davar she’eno mitkaven or any other principles of indirect or delayed or uncertain causation. Dayan Rieger is not speaking about acts caused indirectly, uncertainly or after a delay – he is speaking about an action that directly and immediately occurs and is fully and directly caused by my opening the door. As he writes in his first paragraph: ובדבר התבת קרח מלאכותי נראה כיון דכשפותח את דלת התיבה הוא כדי לקבל משם איזו דבר ואינו מכיון להדליק את העלעקטרי הוי פסיק רישיה דלא איכפת ליה אפילו להדליק אם הוא באופן שהוא פסיק רישיה. No intermediary (like a thermostat) and no indirect or delayed causation is present in the case Dayan Rieger is discussing – the prohibited action is caused by the door opening. The act of opening the door turns on the elektri according to Dayan Rieger. His halachic insight is that even when such causation is direct, it is of no value to the opener of the door, who just wants to take some food out; it is a psik resha of no benefit. Factually, this is not an accurate description of the motor at all, which frequently does not turn on immediately, but it does correctly describe the mechanism of the refrigerator light. Dayan Rieger implicitly concedes that if one were to open the door with the intent to turn on the light (or motor), that would be assur min ha-torah, since he sees no indirect causation in the process, something that most poskim think is not at all true for the motor. Professor Sara Reguer noted by email to me that “my grandfather conferred with scientists and specialists in electricity before giving his response,” and given this fact it is extremely unlikely that he missed such a basic point that anyone who repeatedly opened and closed a refrigerator would have observed. This was simply not true about refrigerator motors as the original question notes explicitly in Hapardes Volume 2. This technological assumption about the refrigerator is true about the light, which always turns on when the door is opened, but not about the motor. I would also note two additional factors for consideration. First, the other substantive halachic logic employed by Dayan Rieger which analogizes elektriki to sparks seems to me to be a closer analogy to a light than to a motor which is hardly fire at all; sparks, like incandescent lights, are fire according to halacha. Secondly, there has been a regular subset of poskim (as shown by Rabbi Abadi’s most recent teshuva, Ohr Yitzchak 2:166) who adopt the exact analysis and view of Dayan Rieger and view the light as lo ichpat since one does not want it and a light is on already. If Dayan Rieger is speaking about the motor, he has gotten the facts terribly wrong as well as provided a halachic chiddush that is totally unneeded, whereas if he is speaking about the light, he has adopted a halachic view that has some company, and gotten the facts correct. Furthermore, his halachic analysis is needed to reach the desired result. Given these factors – the linguistic ambiguity, the presence of logic that is discussing apsik resha and not a grama or a davar she’eno mitkaven, the analogy to sparks and the parallel teshuva by Rabbi Abadi reaching the same conclusion and employing the same logic for lights – I am still inclined to think (as the original article notes) that this teshuva is speaking about the light and not the motor. On the other hand, there is a good and natural impulse to read halachic literature conservatively and to press for interpretations that align gedolim with one other and not leave outliers with halachic novelty.[7] Furthermore, I do recognize that many halachic authorities who have cited Dayan Rieger’s teshuva have quoted it in the context of the motor and not the light,, as Rabbi Sasson claims is the proper reading.[8] But, I think these citations are less than dispositive for the following important reason: Those who quote Dayan Rieger’s view as something to consider about the motor note that his analysis is halachically wrong (see for example, both Yabia Omer OC 1:21 [paragraphs 7-11 are explicitly directly at explaining why Dayan Riegler’s halachic explanation for motors is wrong] and Minchat Shlomo 1:10 [section 7 calls who both note deep [אולם לענ”ד צ”ע הרבה this logic problems with Dayan Reigler’s analysis as applied to the motor).[9] Poskim generally spend less time and ink explicating the views of authorities whom they believe to have reached inapt or incorrect conclusions of fact or law compared with those whom they cite in whole or in part to bolster their own analysis. Simply put, the precedential value of how one posek cites another when they centrally disagree is not as great. Thus, when given two choices of how to understand what an eminent posek wrote, I prefer an approach that is both halachically plausible and factually correct rather than one what is halachically unneeded and factually wrong.[10] Conclusion

In sum, while there is some ambiguity in Dayan Rieger’s teshuva, the recent (ca. 1930) introduction of lights in refrigerators, the fact that Dayan Rieger makes no mention of grama, davar she’eno mitkaven or any of the other classical grounds for discussing the motor, and from the fact that he uses the Yiddish word for light, all incline me to think that he is speaking about the light, although I understand the ambiguity. Let me add, lehalacha, as the original article notes, that I think such a view is not halachically normative in that we do not follow the view of the Aruch as a general matter. Having said all that, in hindsight I would have worded footnote 59 a bit differently to reflect more of the nuance that is present in this post (and may in fact do so if the article is ever republished). Postscript

Allow me to note my general agreement with Rabbi Sasson’s conclusion when he writes: I would add two endnotes – when surveying Halachot with significant practical implications, such as in the realm of Hilchot Shabbat, it is an author’s responsibility to ensure that all sources are cited accurately, lest a reader rely on an incorrect citation with the result of Chillul Shabbat. Secondly, when confronted with a Halachic position of a Gadol B’Yisrael that seems to be entirely erroneous, the possibility that the Gadol’s position is being misunderstood must be explored. This is true even when the citation is in a footnote and even when it is noted as not normative. More generally, readers of blog posts about nuanced textual disputes should, whenever they can, go back to the original sources and check for themselves. (The editors of the Seforim Blog should be commended for helping their contributors include images of such texts for the benefit of the readership.) Let me also add a final endnote of my own: While vigorous debate has always been a fundamental part of within the confines of the beit midrash, and while online forums have brought intelligent Torah conversations to a much wider group of participants (and observers), the tone and tenor of these conversations often take on the harsh, acerbic voice of the internet at large. I generally find that the sharper the rhetorical tone, the less value the substance has. Orthodox today would benefit greatly from deep, substantive conversations on a whole host of halachic and hashkafic matters that are conducted in a respectful manner. We certainly could use more light and less heat. [1] Located here . [2] In 2015 dollars, these range from about $1400 to $2200; see CPI Inflation Calculator here. They are not inexpensive, but seem to be attainable for middle-class consumers. [3] See attached advertisements here. [4] Indeed, the number of household refrigerators increased dramatically during the Depression years, as increased longevity and reduced spoilage helped stretch family food budgets. [5] Nor are these refrigerators more expensive than any other as the ads show. The reason for this is obvious, upon reflection. The compressor was the expensive, high-tech component at that time, whereas the spring switch light connected to the door had been invented many years earlier and was very low cost. [6] The final section addresses ice making and it is not under discussion in this article. [7] For more on this, see the concluding chapter of my ‘Innovation in Jewish Law: A Case Study of Chiddush in Havineinu” (Urim Publiscations 2010). [8] Added to this is the voice of Dayan Reiger’s granddaughter, Professor Sara Reuger, who tells me that she is certain that this teshuva is referring to the thermostat or motor and not the light. However, I was not persuaded by her recollection since she had no direct conversation with her grandfather about this and is only recalling conversations with her own father and (as explained above) this view places Dayan Reiger’s teshuva in a weak halachic light analytically (as well as other reasons). [9] For another example of this, see Hapardes volume 11:2 at page 8-10. [10] Another possibility was suggested to me by Professor Miriam Udel of Emory who noted that the Hebrew corresponds well to the Yiddish ”התבת קרח מלאכותי“ term term ayz-kastn which is really a very early refrigerator (ice chest). Ice chests were pre-modern refrigerators that had no electricity at all, but were cooled by ice; see here and here By 1925 companies were selling add-on kits to these ice chests that contained an external motor which cooled a coil insert. See the article in the Washington Post, August 9, 1925 entitled “Modern Electric Plant Displaces Need For Ice Man: Its Refrigeration” at page F7. See also Display Ad 18 — No Title Chicago Daily Tribune (1923-1963); Jun 14, 1925 (attached) which notes simply “If you have a good refrigerator in your home, you can convert it into a Frigidaire easily and inexpensively. The Frigidaire “frost coil” is placed in the ice compartment; the simple mechanism is the basement or other convenient location. Small copper tubes connect the frost coil and compressor and a connection is made to your electric wiring.” This converted ice box, to the best of my knowledge, had no mechanism related to the door being open at all. (The interior ice compartment would have remained closed.) Dayan Reiger could not have been speaking about this, as he is addressing a door mechanism and not a hot-air-entering-the-refrigerator problem.

The Rav as a Mechadesh Halacha: One Small Example From Shabbat

The Rav as a Mechadesh Halacha: One Small Example From Shabbat Rosh Chodesh Michael J. Broyde In the Koren Rav siddur, in the minhagim of the Rav, in the section dealing with the halachic rules of Rabbi Joseph B. it זצ”ל ,Soloveitchik is written: The Rav posited that if one forgot to recite Ya’aleh VeYavo on Rosh Hodesh during Shaharit, one should not repeat the Amida, but should rather rely upon the reference to the holiday that will be made in the Musaf prayer. The Gemara in Shabbat (24a) states that one who forgot to recite Ya’aleh VeYavo must indeed repeat the Amida and include Ya’aleh VeYavo in that second recital; but the Gemara in Berakhot (30b) qualifies this ruling, teaching that it is not necessary if one intends to recite Musaf subsequently, since the required reference to the special status of the day will take place during Musaf. Even though Rashi there (s.v. betzibbur) cites those who maintain that this dispensation applies only to the Leader in order to avoid any unnecessary delay to the start of the Repetition of the Amida, the Rav felt that we should follow the opinion of the Magan Avraham (Orah Hayyim 126:3) that even an individual should not repeat the Amida of Shaharit and should rely on his subsequent recitation of Musaf. The rationale behind this view is as follows: When one forgets to recite Ya’aleh VeYavo, the need to repeat the Amida is only in order to be able to make reference to the special day within the context of the prayer. The obligation to recite the Amida per se, however, has in fact already been fulfilled. This second Amida therefore has the status of a tefillat nedava – a voluntary prayer, as it is recited not to fulfill any obligation to pray, but rather only to provide the needed context for the reference to the special day made through Ya’aleh VeYavo. Since it has become the practice to refrain from offering this form of voluntary prayer nowadays, Rav Hayyim Soloveitchik ruled that it is preferable not to repeat the Amida, but to rely upon the recitation of Musaf, if it will be done at the proper time. In light of this understanding, the Rav suggested that when Rosh Hodesh falls out on Shabbat, it would actually be prohibited to repeat the Amida if one forgot to recite Ya’aleh VeYavo, since it is prohibited to offer a tefillat nedava on Shabbat. [Eretz HaTzvi, pp. 43-44.] (Emphasis added) And one is not surprised to find that this exact recitation is found in R. Tzvi (Hershel) Schachter, Eretz HaTzvi (Yeshiva University Press: New York, 1991). While at first glance this note is not surprising – it appears that the Rav and his grandfather are adopting the ruling of the Magen Avraham over his peers — upon further examination it is clear that this is an exceptionally innovative ruling, in fact. Furthermore, the expansion of this ruling by the Rav himself (“the Rav suggested that when Rosh Hodesh falls out on Shabbat, it would actually be prohibited to repeat the Amida if one forgot to recite Ya’aleh VeYavo”) is unprecedented, but logically compelling. A review of the sources is needed. The Talmudic Sources, the Rishonim and the Codes.

The Gemera in Shabbat 24a recounts rather directly: דתני רבי אושעיא: ימים שיש בהן קרבן מוסף, כגון ראש חודש וחולו של מועד – ערבית ושחרית ומנחה מתפלל שמונה עשרה, ואומר מעין המאורע בעבודה, ואם לא אמר – מחזירין אותו R. Oshaia taught: On those days when there is a mussaf, such as Rosh Chodesh and Chol Hamoed at the Evening, Morning and Afternoon services, the shemona esrai is recited, and the nature of the day is inserted in the avoda blessing [ya’aleh veyavo] and if one does not insert it, one repeats the Shemona Esrai. And the gemera in Brachot 30b recounts rather directly what appears to be a slightly different rule. והתניא: טעה ולא הזכיר של ראש חודש בשחרית[1] – אין מחזירין אותו מפני שיכול לאומרה במוספין, במוספין – אין מחזירין אותו מפני שיכול לאומרה במנחה! – אמר ליה: לאו איתמר עלה, אמר רבי יוחנן, – בצבור שנו. If one forgot and did not recite yaaleh veyavo in the morning [tefillah], he is not made to repeat [the prayer], because he can say it in mussaf if he forgot it in musaf, he is not made to repeat, because he can say it in mincha? — He said to him: Did you not leave out the rule of Rabbi Yochanan: This applies only to prayer said in a congregation? Rashi (aware of the possible contradiction between these two sources) seeks a simple resolution with his two sided comments. Rashi in Brachot 30 b states: בצבור שנו – דאין מחזירין, משום דשמע ליה משליח ציבור, ואיכא מקצת הזכרה, אבל ביחיד צריך לחזור, ובהלכות גדולות מפרש לה בשליח ציבור משום טירחא דצבורא, אבל יחיד הדר. In a Congregation: One does not repeat davening, since one can hear it from the chazzan, and that is some partial recitation, but an individual must repeat; The Bahag explains that the chazzan is different since otherwise the community will be delayed, but other than the chazzan, one must repeat. And one of these two resolutions of the contradiction (or both) is – as far as I can see – accepted by every single rishon who comments on the gemera. Rambam (Tefillah 10:10-12) states directly: טעה ולא הזכיר יעלה ויבא אם נזכר קודם שישלים תפלתו חוזר לעבודה ומזכיר, ואם נזכר אחר שהשלים תפלתו חוזר לראש,* * * *. במה דברים אמורים בחולו של מועד או בשחרית ובמנחה של ראשי חדשים, אבל ערבית של ראש חדש אם לא הזכיר אינו חוזר.כל מקום שהיחיד חוזר ומתפלל ש”ץ חוזר ומתפלל אם טעה כמותו בעת שמתפלל בקול רם, חוץ משחרית של ראש חדש שאם שכח ש”ץ ולא הזכיר יעלה ויבא עד שהשלים תפלתו אין מחזירין אותו מפני טורח ציבור, שהרי תפלת המוספין לפניו שהוא מזכיר בה ראש חדש. Rambam Tefillah 10:10-12

If one errs and forgets to mention Ya’aleh veyavo — if one remembers before one has finished one’s , one should return to retzey, and recite it. If one remembers after one has concluded one’s amidah, one must repeat the amidah from the beginning. * * *When does this rule apply? On Chol Hamo’ed or in the morning or Mincha amidah of Rosh Chodesh. However, in the evening service of Rosh Chodesh, if one failed to mention it one need not repeat one’s prayers. In every case in which an individual is required to repeat his prayers, the chazzan is also required to repeat his prayers if he made that mistake while praying out loud, with the exception of the morning service of Rosh Chodesh, where if the chazzan failed to mention Ya’aleh v’yavo before completing the amidah, he is not required to repeat the amidah because of the delay this would cause the congregation, since the Musaf service is still to be recited and Rosh Chodesh will be mentioned there. And the same rule is codified in the Shulchan Aruch, with the addition that one can also adopt the approach of the Bahag as quoted by Rashi and instead of praying again, one can hear the prayers from the chazzan. Shulchan Aruch OC 124:10 codifies the rule in Shabbat 24a and Shulchan Aruch OC 126:3 codifies the exception in Brachot 30b. שולחן ערוך אורח חיים הלכות תפלה סימן קכד סעיף י מי ששכח ולא אמר יעלה ויבא בר”ח או בחולו של מועד או בכל דבר שצריך לחזור בשבילו, יכוין דעתו וישמע מש”צ כל י”ח ברכות מראש ועד סוף כאדם שמתפלל לעצמו; ולא יפסיק ולא ישיח Shulchan Aruch OC 124:10 One for forgets and does not recite yaaleh veyavo on Rosh Chodesh or chol Hamoed or any other cases where one must repeat the amidah due to the omission, he can focus himself during the repetition and hear the words from the chazzan of all Eighteen blessings, from beginning to end, like a person who is himself praying without interruption or digression. שולחן ערוך אורח חיים הלכות תפלה סימן קכו סעיף ג כל מקום שהיחיד חוזר ומתפלל, ש”צ חוזר ומתפלל, אם טעה כמותו כשמתפלל בקול רם, חוץ משחרית של ר”ח, שאם שכח ש”צ ולא הזכיר יעלה ויבא עד שהשלים תפלתו, אין מחזירין אותו, מפני טורח הצבור, שהרי תפלת המוספין לפניו שהוא מזכיר בה ר”ח. Shulchan Aruch OC 126:3 In every case in which an individual is required to repeat his prayers, the chazzan is required to repeat his prayers if he made that same mistake while praying out loud, with the exception of the morning service of Rosh Chodesh, where if the chazzan failed to mention Ya’aleh v’yavo before completing the amidah, he is not required to repeat the amidah because of the delay this would cause the congregation, since the Musaf service is still to be recited and Rosh Chodesh will be mentioned there. So far, the halacha is clear and simple. One must repeat the amidah if one forgets yaaleh veyavo (either by actually repeating it or through listening to it recited by another) except for the rare situation of the Shacharit chazzan who forgets during his repetition. The Alternative of the Rama MePano: A Different Rule Rama MePano 25:5 understands the basic flow of the sources in a different way and adds something quite new to the codification of the halacha. He states: יחיד ששכח ולא הזכיר קדושת היום בתפלת שחרית ואחר שהתפלל מוסף חזר והתפלל שחרית, ודאי אינו צריך לחזור ולהתפלל מוסף, שאפי’ בקרבנות גופייהו אם הקדים את שאינו תדיר מה שעשה עשוי. ואי לאו דמסתפינא אמינא דלא אמרו בגמרא להחזיר את היחיד שטעה אף על פי שיש לפניו תפלת המוספין אלא קודם שהתפלל מוסף כיון שבידו לתקן יתקן לגמרי, הא אם התפלל מוסף הרי הזכיר קדושת היום ואין צורך לחזור ולהתפלל שחרית, דלא גרע דיעבד ליחיד ממאי דשרינן לכתחלה לרבים, ודברים של טעם הם להלכה מהתם, הגע עצמך שש”צ יהא נזקק להוציא עשרה שאינן בקיאין ידי חובתן ושכח ולא הזכיר שחרית מעין ר”ח ועם תפלת מוסף פוטר עצמו וחבריו לכתחלה ולא אחד בהם חוזר ומתפלל שחרית, לא יהא יחיד הבקי בדיעבד אלא כעשרה שאינן בקיאין ולכתחלה. An individual, who forgets and does not recite the mention of the day in the Shacharit amidah and then he recites musaf, returns to recite Shacharit. Certain he does not have to return to recite musaf again, since even with the Bet Hamikdash sacrifices themselves, if one did them out of order, and sacrificed the infrequent first, that which was done, was done. If I were not uncertain, I would say that that the gemera does not direct an individual who errors to repeat the amidah, only before he has recited musaf, since he can fix this matter, he should do so completely. But, if he already recited musaf, he has already recited the proper sanctification of the day and he does not have to recite Shacharit again, since the after the fact rule for a single prayer is no worse than that which we permit ideally for the many. This seems logical and normative as a matter of halacha: Consider for yourself that the chazzan who is connected to the obligation to fulfill the obligation for ten who cannot pray when they are not experts, and yet when he forgets to recite yaalah veyavo in Shacharit, he can fulfill his and others obligations in musaf perfectly. And not of them have to go back and recite Shacharit again. A single person who can pray for himself after the fact, is no worse than ten who are not experts ideally. The Rama mePano understand the sources in a new and novel way: really according to the formulation in Brachot 30b (which the halacha follows) one can rule that if one already prayed the proper mussaf before one realized that one forgot to recite ya’aleh vehavo in Shacharit, one need not pray again, since one can be no worse that the chazzan mentioned in the gemera above. And this view is adopted by the Magen Avraham (OC 126:3) as well, who states: כל מקום – כ’ מ”ע סי’ כ”ה אי לאו דמסתפינא הייתי אומר יחיד שלא הזכיר ר”ח בשחרית והתפלל מוסף אין צריך שוב להתפלל שחרית דלא גרע דיעבד ליחיד מלכתחלה לרבים ודברים של טעם הם להלכה ע”כ, ול”נ דנכון למעשה שלא יתפלל דלא יהא אלא ספק [כ”ה סימן תכ”ב]: 3 Any place. It is written in the Rama Mepano 25 that if he were not so uncertain he would say that a person who forgets to recite yaaleh veyavo in Shacharit and then recites musaf he does not have to again go back and recite shacharit another time, since the after the fact rule for a single person is not worse that the ideal rule for the many. This approach has much merit as normative halacha. In my view, it is proper lemaseh that one should not recite shacharit again, since the matter is in doubt. Magen Avraham seems to agree with the tentative rule of the Rama mePano and thus decides that if one already recited musaf, then one does not have to say shacharit again. Magen Avraham, however, does not claim that one can decide not to recite Shacharit again and intend it rely on this subsequent recitation of musaf. An Explanation of the Rav’s View As quoted above, this was not the Rav’s view. Rather (as the Koren siddur notes) “the Rav posited that if one forgot to recite Ya’aleh VeYavo on Rosh Hodesh during Shaharit, one should not repeat the Amida, but should rather rely upon the reference to the holiday that will be made in the Musaf prayer.” Notice the incredible chiddish the Rav puts forward. He expands the Rama mePano and Magen Avraham to include the case where one is eventually going to recite musaf, but has not yet done so, and he adds to this that on Shabbat one must adopt this rule, since a teffilat nedava is prohibited. This chiddish – which to the best of my knowledge is completely unfound in any Rishon at all — is I think built on a totally different approach to the two Talmudic sources from any Rishon and even quite distinct from the Magen Avraham and Rama mePano, although related and derived from it. Consider how to explain the three basic views adopted: All Rishonim: Either Brachot 30b is addressing the unique situation of the chazzan or is because one can hear it correctly from the chazzan, but it never applies in the case of a person who is davening alone without a minyan present. Shabbat 24a is the rule – one who leaves out Ya’aleh VeYavo has to repeat the amida. No distinction is made between weekday and Shabbat.

Rama MePano and Magen Avraham: Shabbat 24a is the rule, but Brachot 30b is the exceptional rule for the chazzan in order to not delay the community. One who is not the chazzan cannot rely on Brachot 30b. If one has already prayed mussaf, then one has no choice but to follow the Brachot 30b rules, since he has already after the fact fulfilled his obligation. Again, no distinction is made between the weekday and Shabbat. Rabbi Yosef Dov Halevi Soloveitchik: Brachot 30b and Shabbat 24a are in tension since one directs one to repeat amida and one directs one not to. The halacha follows the rule of Brachot 30b in that one who skips Ya’aleh VeYavo in Shacharit never really has to repeat the amida, except as a voluntary prayer, and when voluntary prayer is prohibited (such as on Shabbat), such a repetition is prohibited too. This is based on the insight of the Rama MePenao, but is quite an expansion of it. Allow me to suggest, as a proof to Rabbi Soloveitchik’s understands of the basic Talmudic sources, that one can focus on three basic aspects of the twosugyot to support this chiddish. First is the fact that that the gemera in Shabbat can reasonably be limited to weekdays chol( ) cases where 18 blessings is said, which is why it used the language of shemonah esrai – and on such days, a tefillat nedavah is possible.[2] Second, the Brachot sugya can reasonably be limited to Shabbat, since it discusses forgetting that it is Rosh Chodesh but yet reciting musaf: when can one forget that it is Rosh Chodesh and yet still recite musaf? Almost never during the weekdays (since if one did not remember it was Rosh Chodesh, one would not say musaf as a factual matter) but only on Shabbat, when no tefillat nedavah is possible, and yet musaf is recited, even if it is not Rosh Chodesh![3] Parsing the two sources in their context allows one to see that Shabbat 24a directive is the suggestion for a tefillat nedava and the Brachot 30b rule is actually the rule – no repetition is permitted when no tefillat nedavah is possible.[4] Finally, it is not difficult to divide the Brachot sugya into two thoughts along a line similar to the Rama MePano (but not identical). The first is the general rule that no repetition for ya’aleh veyavo is needed when one says a subsequent amidah (musaf), and the second view is that of Rav Yochanan that in a tzibbur is different, since one does not actually have to wait until the next amidah to fulfill one’s obligation, but one can fulfill it by listening to the chazzan repeat this davening (as per the main view of Rashi). Of course, this view concedes, according to Rabbi Soloveitchik, that when one cannot hear it from the chazzan, one still does not repeat the amidah, except when a teffilat nedavah is acceptable (which nowadays is never). In fact, the Rav must have ruled that whether or not the halacha adopts Rav Yochanan’s view, the rest of the Brachot sugya is correct. This also makes the Brachot sugya (the “on topic” gemera) normative (lehacha), and the Shabbat sugya (the “off topic” gemera) not normative (shelo lehalacha) – a more compelling read of the sugyot. It is worth noting that if this explanation of the Rav’s view is correct, another chiddish seems also to be correct. On Shabbat Rosh Chodesh, when one is davening by oneself without a minyan, and one forgets that it is Rosh Chodesh for both Shacharit and Musaf, and remembers after mincha, one does not repeat musaf again, since one can follow the formulation of במוספין – אין מחזירין אותו מפני שיכולBrachot 30b that and a tefillat nedava is not possible. The same !לאומרה במנחה is true if one forgets it is Rosh Chodesh on Shabbat mincha, but had previously remembered at shacharit and mussaf.

[1] I have deleted the בערבית – אין מחזירין אותו מפני“ words since nearly all the rishonim do not have ”שיכול לאומרה בשחרית them in their gemera and this makes more sense given the flow of the sugya. מתפלל שמונה The Gemera in Shabbat 24a states [2] .עשרה, ואומר מעין המאורע בעבודה [3] Of course, one could also read the Gemera in Brachot as speaking about a case during the weekday when one forgot ya’aleh veyavo in shacharit but recited musaf – but then the sugyot are in flat out conflict. The approach, which also notes that the term shemona esrai (the weekday amidah) is in Shabbat 24a and not is Brachot 30b, eliminates the ccore onflict between the two sugyot. [4] This approach has the additional advantage of making the Brachot Talmudic source superior to the Shabbat one, which is more reasonable and in line with the general rule, in that the Brachot source is directly on the topic of ya’aleh veyavo and the Shabbat source is off topic and incidental, following the general Talmudic rule that when Talmudic sources conflict, we prefer to follow the one that is central and not the one that is incidental.

What is Bothering the Aruch Hashulchan? Women Wearing Tefillin

What is Bothering the Aruch Hashulchan? Women Wearing Tefillin Michael J. Broyde [email protected] Please note that this piece isn’t meant to be construed one way or another as the view of the Seforim Blog. Introduction In our previous article,[1] we focused on the view of the Mishnah Berurah concerning women wearing tefillin. In this article, we focus on the Aruch Hashulchan, whose approach is also complex, reflecting the complexity of the area. The Aruch Hashulchan (OC 38:6) states: נשים ועבדים פטורים מתפילין מפני שהיא מצות עשה שהזמן גרמא דשבת ויו”ט פטור מתפילין ואם רוצין להחמיר על עצמן מוחין בידן ולא דמי לסוכה ולולב שפטורות ועכ”ז מברכות עליהן דכיון דתפילין צריך זהירות יתירה מגוף נקי כדאמרינן בשבת [מ”ט.] תפילין צריכין גוף נקי כאלישע בעל כנפים ובירושלמי ברכות שם אמרו תמן אמרין כל שאינו כאלישע בעל כנפים אל יניח תפילין אך אנשים שמחויבים בהכרח שיזהרו בהם בשעת ק”ש ותפלה ולכן אין מניחין כל היום כמ”ש בסי’ הקודם וא”כ נשים שפטורות למה יכניסו עצמן בחשש גדול כזה ואצלן בשעת ק”ש ותפלה כלאנשים כל היום לפיכך אין מניחין אותן להניח תפילין ואף על גב דתניא בעירובין [צ”ו.] דמיכל בת שאול היתה מנחת תפילין ולא מיחו בה חכמים אין למידין מזה דמסתמא ידעו שהיא צדקת גמורה וידעה להזהר וכן עבדים כה”ג [עמג”א סק”ג וב”י ולפמ”ש א”ש[: Women and slaves are exempt from the mitzvah of tefillin since it is a positive commandment that is time bound since tefillin are not worn on Shabbat and Yom Tov. If they wish to adopt this as a stringency, we should protest. This is not comparable to sukkah and from which they are exempt, but nonetheless recite a blessing. This is because tefillin require extra diligence regarding cleanliness, as it states in Shabbat (49a) that tefillin need a clean body like Elisha .In the (Berachot) it says that anyone who is not clean like Elisha should not wear tefillin. Even men must be careful [with cleanliness] when reciting the Shema and Amida which is why they do not wear them all day, as I noted in the previous paragraph. If this is so, then why should women — who are exempt [from the mitzva of tefillin] — place themselves under this great risk, since for them, [wearing tefillin] when the Shema and the Amida are recited is comparable to men [wearing tefillin] the entire day. Therefore, we do not permit them to put on tefillin. Even though it recounts in Eruvin (96a) that Michal bat Shaul did don tefillin, and the rabbis did not rebuke her, we should not extrapolate from this, since they knew that she was very righteous and could be careful. Slaves are in the same situation. [See the Magen Avraham 38:3 and the Bet Yosef; according to what I have written all makes sense.] There are a few problems with the Aruch Hashulchan that are immediately clear. Four come to mind as requiring resolution in order to understand the Aruch HaShulchan: · Why does he not cite the primary source for the halacha of rebuking women, which is the Pesikta? · What are the characteristics of women who can put ontefillin according to the Aruch Hashulchan or does he mean that Michal bat Shaul is unique? · Can all slaves put on tefillin? Can any? · What is the problem with the Magen Avraham and the Bet Yosef that he is seeking to answer? In short to understand the Aruch Hashulchan’s approach, one must first comprehend what is bothering him about other approaches. In this case, he tells the reader what is bother him when he notes in his final עמג”א סק”ג]] parenthetical note וב”י ולפמ”ש א”ש in which each word is abbreviate, but crucial to understanding, so we spell it out: [עיין מגן אברהם סעיף קטן ג ובית יוסף ולפי מה שכתב אתיא שפיר[: [See the Magen Avraham call note 3, and the Bet Yoesef, and according to what I have written all is logical.] In this note, Aruch Hashulchan is claiming that neither the Magen Avraham nor the Bet Yosef have properly solved the problem, and he thus doing so. This paper is an explanation of that. The Approach of the Bet Yosef:

Bet Yosef (OC 38) quotes Tosafot, as well as the Pesikta to explain the reasoning behind Chazal’s recorded disapproval of Michal bat Shaul wearing tefillin. Bet Yosef states and elaborates: כתב הכל בו (סי’ כא) בשם הר”ם שאם רצו הנשים להניח תפילין אין שומעין להן מפני שאינן יודעות לשמור עצמן בנקיות עכ”ל ובספר ארחות חיים (הל’ תפילין סי’ ג) הקשה עליו מדאמרינן בריש פרק המוצא תפילין (שם) דמיכל בת כושי (פירוש בת שאול) היתה מנחת תפילין ולא מיחו בה חכמים. ולי נראה שטעם הר”ם כמו שכתבו התוספות (ד”ה מיכל) דאיתא בפסיקתא (רבתי פרק כב) שמיחו בה חכמים ופירשו הם דטעמא משום דתפילין צריכין גוף נקי ונשים אינן זריזות ליזהר והר”מ רצה לחוש לדברי הפסיקתא: The Kol Bo (21) writes in the name of the Maharam that if women wish to wear tefillin, we do not listen to them, since they do not know how to keep themselves clean. The Orchot Chaim (Tefillin 3) questioned this based on the Talmud in Eruvin 96a that Michal bat Kushi (daughter of Saul) did don tefillin and the rabbis did not rebuke her. To me, it appears that the view of the Maharam is like that quoted by Tosafot (sv michal) as it appears in the Pesikta that the Sages did rebuke her. They explained the reason to be that tefillin need a clean body and women are not careful about such matters. Maharam was concerned for the view of the Pesikta. The Bet Yosef is clear and simple. He thinks that there is a dispute between rabbinic sources about whether any women can ever wear tefillin. The Babylonian Talmud rules that Michal bat Shaul can wear tefillin, and she is a model for all other women; the Pesikta states that such is prohibited to all women, even to women like Michal bat Shaul. Some, the Bet Yosef claims, are concerned with the view of the Pesikta, which they think is normative. Following his rules to resolve disputes, Rabbi Karo in the Shulchan Aruch rules against the Peskita and like the Bavli, as such is the resolution favored by Rambam, Rif and Rosh. Rabbi Karo states simply: נשים ועבדים פטורים מתפילין, מפני שהוא מצות עשה שהזמן גרמא. Women and slaves are exempt from the mitzvah of tefillin since it is a positive time bound commandment. Nothing is codified to discourage this conduct; only an exemption is noted. The view of our Talmud is codified and nothing else is cited. According to Rabbi Karo, tefillin are like lulav, sukkah and shofar, which women need not, but may do, and is a mitzvah for them to do. The Peskta is rejected. The Approach of the Magen Avraham The Rema, however, adds the alternative: הגה: ואם הנשים רוצין להחמיר על עצמן, מוחין בידם. If the women wish to be strict for themselves, we protest. The Rema seems to be adopting the view of the Pesikta that we ought to protest such conduct, essentially prohibiting it. Much is unclear about the Rama, including why and does he mean all women (although logic inclines one to think that he means all women.) To explain the position of the Rama, Magen Avraham (38:3) write: מוחין כו’ – מפני שצריכין גוף נקי ונשים אינם זריזות להזהר אבל אם היו חייבים לא היו פטורין מה”ט דהוי רמי אנפשייהו ומזדהרי כנ”ל דלא כע”ת: We protest: Since they need a clean body and women are not particularly careful with cleanliness; but if they were obligated, they would not be exempt for that reason since they would accept the mitzvah upon themselves and they would thus be conscientious. Such appears to me to be the rule, and not like the Olat Tamid. The whole thrust of the Magen Avraham is to explain the view of the Pesikta in contrast to the Bavli. The Magen Avraham explains that the Pesikta rules once one is not obligated in donning tefillin, one is not careful to be clean and only those obligated are considered careful enough to wear tefillin. The Magen Avraham’s view is simple and central. The halacha follows the Pesikta’s view which is that the Rabbis made a decree that no one may don tefillin other than those who are obligated. Even Michal bat Shaul may not. The Magan Avraham explains the Rama as clearly residing in the camp which rules that the halacha follows the Pesikta against the Bavli. The whole thrust of the reasoning of the Magen Avraham is to reject the view of the Olat Tamid who argues that Rama is codifying only the rule that women who are not clean should be rebuked.[2] Understanding the Aruch Hashulchan

The Aruch Hashulchan does not adopt either of these views. He thinks that the halacha is balanced between two textual imperatives, and he thinks that neither the Magen Avraham nor the Bet Yosef has balanced them correctly, since one accepts that the Bavli is completely correct and one that the Pesikta is the rule. Not so the Aruch Hashulchan: he accepts the ruling of the Pesikta as codified by the Rama that one needs to rebuke women who don tefillin, but he has to harmonize that ruling with the binding holding of the Babylonia Talmud, which is the center of his (and our) halachic universe that Michal Bat Shaul was not rebuked. How does he do that? The answer is clear. He quotes the Rama’s ruling (twice!) that one rebukes women and then he explains the rule of the Rama consistent with the Talmud. He never quotes the view of the Pesikta and explains the halacha exclusively on the basis of the Bavli. His logic is simple and it can be laid out in almost mathematical form. 1. We are very concerned about physical cleanliness and thus no men wear tefillin other than during morning prayer time when they are obligated to. 2. Men are obligated and women are not. 3. Thus, just like we discourage men from wearing tefillin all day long, we discourage women from wearing tefillin even during prayer, since they are not obligated. 4. But (just like it is not prohibited for a man who is careful to wear his tefillin all day long[3]), it is not prohibited for a woman to wear tefillin if she is careful. Only exceptional and rare women are careful in that way. 5. The Babylonian Talmudic discussion about Michal bat Shaul is not – as the Bet Yosef claims – about all women, but only about special and unique women. The Pesikta claim that the Bavli is wrong even about these special and unique women has to be rejected as the Bavli is controlling when directly on point. But, in all other cases, we follow the Pesikta, since the Bavli can be read as only speaking about special cases. Thus, while he quotes the Rama’s view that we must object to women donning tefillin, he modifies it in his last sentence of analysis — exactly because it goes quite clearly and directly against our Talmud (the touchstone of Jewish law). Aruch Hashulchan wants to make it clear that we do rule exactly like the Bavli, but as understood though the lenses of the Pesikta. When the Peskita and the Bavli directly conflict or seem to conflict, then we have to adopt the rule of Bavli: when they do not, we adopt an explanation of the Bavli consistent with that of the Pesikta. That explanation focuses on the rule of cleanliness, and rules that people who might be unclean and who are not obligated ought to be rebuked when they don tefillin. In short, the Aruch Hashulchan rules that as a general rule women are rebuked (as the Pesikta states) but exceptional women are not, as the Bavli rules, but even the Bavli agrees that women generally should not don tefillin.[4] The following things are then apparent from the Aruch Hashulchan. · He rejects the view of the Magen Avraham that all women and slaves are categorically prohibited from donning tefillin. · The Aruch Hashulchan does not cite the Pesikta because he thinks that the ultimate holding of the Pesikta is wrong, in that Michal bat Shaul is allowed to wear tefillin without rebuke. But, he does not reject the rule of rebuke generally, as he is concerned that women will cavalierly don tefillin when they are not clean, and that should be discouraged and rebuked. · The Aruch Hashulchan thinks that, as a matter of theory, a slave and a cheresh (who are also not obligated in tefillin) are also allowed to wear tefillin when concerns of cleanliness are not present. It is unclear from his formulation if he adopts the view of the Olat Tamid that all slaves can wear tefillin, or he adopts the view of the Tosaphot Yerushalayim that only slaves who are rare and special like Tevi are allowed to wear tefillin. But, it is clear from the Aruch Hashulchan’s formulation with regard to a cheresh that one who is not obligated but clean may wear tefillin.[5] (For reasons explained in the previous article on the Mishnah Berurah, in terms of tefillin law, both slaves and chereshim are harder cases than women.[6]) In Sum: The Aruch HaShulchan preserves the Talmudic rule of non-rebuke in a subset of case, as that is the rule codified in the Talmud. This is consistent with a proper methodological understanding of the Aruch Hashulchan, who would be very hesitant to rule like a Pesikta against a clear Bavli. He argues with the Magen Avraham and those many others who codify the rule that rebukes even Michal bat Shaul. So too, he argues with the Bet Yosef who simply ignores the Pesikta completely. The Aruch Hashulchan codifies both rules while giving priority to the Bavli when the two sources conflict. This approach of the Aruch Hashulchan explains why he is also comfortable arguing with the inclination of the Magen Avraham that even men should not wear tefillin other than during the times of prayer.[7] Magen Araham is inclined to rule that once a man has fulfilled the tefillin obligation, he should not put them on again, since a man who has already donned tefillin is like a woman who has not, and neither may don again, (based on the rules of the Pesikta). Aruch Hashulchab rejects the rule of the Pesikta as applicable to all women, treating it only as good advice and permits both very pious and unique men and women to violate it when it is clear that fears about cleanliness do not apply to them. צדקת and such women he calls יחידי סגולה Such men he calls .גמורה There is one important thing still unclear in the Aruch Hashulchan. We do not know who else fits into the Michal bat Shaul rule besides her? He classifies women who should not be which צדקת גמורה וידעה להזהר rebuked under the heading of literally means that “she was a completely righteous woman who knew to be careful [about cleanliness]”[8] What is clear, however, is a few things. 1. The Aruch HaShulchan rejects without citing[9] the view of the Olat Tamid 38:3 that the proper classification of women who may put on tefillin is as elderly, since the Aruch Hashulchan does not connect cleanliness to menstruation (other than in some factual way, as he does in OC 88:4). 2. Furthermore, the Aruch Hashulchan does not limit to the rule of Michal bat Shaul to a functional null set, like other authorities, who nominally rule like the Bavli in the case of Michal bat Shaul and the Pesikta in all other cases, but insist that the Michal bat Shaul case is limited to daughters of kings who are also wives of kings, as the Levush does (OC 17:2) or various kabbalists (cited by the Klaf Hachaim 38:9) who limit it to women who cannot have children and do not menstruate. These halachic authorities are trying to solve the problem of the Bavli being in conflict with the Pesikta as limiting the Bavli to a functional null set and the Aruch Hashulchan will have none of that. To the Aruch Hashulchan, Michal bat Shaul is a functional case, as if he just sought nominal fidelity to the rule of the Bavli, he would have adopted some other rule that totally minimizes the Bavli. 3. The Aruch HaShulchan, like the Mishnah Berurah before him, rejects without citing the view of the Gra (38:3) who rules that the Bavli and the Pesikta both agree that women ought to be rebuked for donning tefillin. 4. The Aruch Hashulchan, like the Mishnah Berurah before him, rejects the rule of the Magen Avraham that all those who are not obligated in tefillin may not wear them. Rather, the Aruch Hashulchan codifies two simple rules: (1) Women generally should not wear tefillin out of concerns of cleanliness; (2) special women who are righteous and clean may do so. Of course, to what extent this has practical halakhic application is for a different discussion. For example, there might be other rationales outside oftefillin law prohibiting such conduct,[10] or one could look to the view of the Magen Avraham and Pri Megadim and object to women wearing tefilin due simply to their lack of obligation. But, the Aruch Hahsulchan standing alone as a matter of tefillin law does not flatly prohibit clean righteous women from wearing tefillin. [1] http://seforim.blogspot.com/2014/05/fixing-typesetting-error-i n-order-to.html [2] As the Pre Megadim notes in his explanation of the Magen Avraham, the Ashel Avraham 3, Magen Avraham rules that all those exempt may not put on tefillin. This is in direct contrast with the Olat מהא דאמרנן דלא מיחו בה חכמים משמע:Tamid (38:4) who writes דאם האשה זקנה וידעינן בה שיודעת לשמור את עצמה דאין למחות בה ובה”ג מיירי :התם Nevertheless, the source that says the Rabbis did not rebuke Michal does imply that if a woman is elderly [i.e., post-menopausal] and we know that she is capable of watching herself [to stay clean], one should not rebuke her. And it is such a case that the Talmud has in mind there [i.e. in me shemeto, where women are said to be exempt from wearingtefilin , not categorically forbidden from doing so]. [3] As Aruch Hashulchan OC יחידי“) explicitly notes that uniquely rare men 37:3 wear tefillin (“סגולה all day even nowadays. [4] Much more can be said about how the Aruch HaShulchan address tensions between the Bavli and other Talmudic sources, which needs a much longer essay. See generally http://www.torahmusings.com/2011/05/the-yerushalmi-as-a-source -of-halacha/. [5]Aruch Hashulchan 37:12 states simply: וחרש ושוטה ודאי דאין ליתן להם תפילין דבודאי לא יזהרו בקדושתם: A cheresh and an insane person should not be given tefillin since certainly they will not be careful with their holiness. Implying that such a person who can be careful is not prohibited. [6] See the Mishnah Berurah article cited in note 1. [7] See Aruch Hashulchan OC 37:3: ויש שמשמע מדבריהם שמי שירצה עתה להניחם כל היום בבטחו שלא יפיח ולא יסיח דעת ומ”מ לא יניחם כל היום [עמג”א סק”ב] ולענ”ד לא נראה כן וכן שמענו שיש יחידי סגולה ומה גם בדורות שלפנינו שהיו נושאים כל היום ועכשיו נהגו ג”כ היחידים השרידים ללמוד מעט בהם אחר התפלה There are those who wish to derive from their words that one who wishes to don tefillin all day, certain that he will neither pass gas nor lose focus, still should not do so [Magen Avraham 37:2] and inmy opinion this does not appear correct, and we have heard that there are unique special people even in the generations before us who donned tefillin all day, and even now it is the custom of a few to keep them on a bit after morning prayers. [8] As I explain above, I think it roughly correspondent to the way he understands men who can wear tefillin unique and) יחידי סגולה all day, who he calls special people) — special cases which actually do exist, but were not common. [9] Unlike many of his contemporaries – including the Mishnah Berurah who cites the Olat Tamid more than 400 times — the Aruch Hashulchan did not cite the Olat Tamid more than 15 times and even then only when he is cited by others (most commonly, the Aliyah Rabba). I suspect that the Aruch Hashulchan did not actually have the Olat Tamid in his library as it was already a rare work. [10] See for example, Piskai Teshuva 38:3 who provide one such reason or the recent teshuva of Rabbi Hershel Schachter who provides another.

Fixing a Typesetting Error in Order to Understand The View of the Mishnah Berurah on Women Wearing Tefillin

Fixing a Typesetting Error in Order to Understand The View of the Mishnah Berurah on Women Wearing Tefillin by Michael J. Broyde [email protected] Please note that this piece isn’t meant to be construed one way or another as the view of the Seforim Blog. While there has been considerable recent discussion regarding women wearing tefillin, I will not review here the general topic but rather focus specifically only the view of the Mishnah Berurah. I believe the view of the Mishnah Berurah has been widely misunderstood due to two identical typesetting errors in the text, one in the Mishnah Berurah itself and one in the Biur Halacha. It is not my intent to address the normative halacha in this article. Background Sources

Rabbi Karo (OC 38:3) states simply: נשים ועבדים פטורים מתפילין, מפני שהוא מצות עשה שהזמן גרמא. Women and slaves are exempt from the mitzvah of tefillin since it is a positive time bound commandment. Rema adds to his exemption, noting: הגה: ואם הנשים רוצין להחמיר על עצמן, מוחין בידם. If women wish to be strict for themselves, we protest. is adopting the view of Tosafot and the Pesikta Rabati that we ought to protest such conduct, essentially prohibiting it. But this blanket statement of the Rema does not sit well with some commentators. The Olat Tamid[1] (38:4) writes: ואם הנשים רוצין וכו׳: הטעם כתב בכלבו משום שאינו יודעת לשמור את עצמן בנקיות עכ”ל ואני תמה אם כן למאי הצריכו בגמרא פרק מי שמיתו לפרש מפני שהוא מצות עשה שהזמן גרמא הנשים פוטרות מן התפילין ת”ל דאפילו אס רוצים להחמיר אסורין להניח תפילין, שהרי אינן ידעת לשמרם בטהרה! אלא ודאי דליתא להאי טעמא לפי סוגיות הגמרא וכן אמרינן בר”פ המוצא תפילין דמיכל בת כושי היתה מנחת תפילין ולא מיחו בה חכמים אע”ג דבפסיקתא א’ להיפך דמיחו בה חכמים מ”מ אנן אגמרא דידן סמכינן. מיהו יש לדחות, הא דלא מפרש גמרא הטעם זה משום שרוצה ליתן טעם גם לעבדים דפטורות ואי משום טעם זה לבד היה נראה דעבדים חייבים שהרי בודאי הם יודעים לשמרם בטהרה ולפיכך מפרש מפני שהוא מצות עשה שהזמן גרמא • דמש”ה גם עבדים פטורים מיהא מהא דאמרנן דלא מיחו בה חכמים משמע דאם האשה זקנה וידעינן בה שיודעת לשמור את עצמה דאין למחות בה ובה”ג מיירי התם: The Kolbo writes that the reason is because women do not know how to guard themselves with cleanliness. I was amazed at this, as if that is the case, why does the Talmud in chapter me shemeto need to explain that women are exempt from tefillin because it is a time bound positive commandment? Wouldn’t it be true [according to Kolbo] that [whether they are exempt or not and] even if they wish to be strict on themselves, it is prohibited from them to don tefillin since they do not know how to watch themselves with purity! Rather, it must be that this reason [i.e., that women may not wear tefillin due to cleanliness issues] is not correct according to the Talmudic text. So too, it says in the beginning of the chapter Hamotzee tefillin that Michal Bat Shaul donned tefillin and the Rabbis did not rebuke her; even though one Pesikta says the opposite, that they did rebuke her, nonetheless, we follow our Talmudic source. However, one could rebut the [previous] proof, [because perhaps] our Talmud [in me shemeto] does not give this explanation [cleanliness] since it wants to offer a reason why slaves are also exempt. And if it were for this reason [cleanliness] alone, it would appear that slaves are obligated in donning tefillin, since they certainly know to keep themselves clean. Therefore the Talmud explains [that women are exempt from tefillin] because of the principle of time bound positive commandments, since it is for this reason that slaves are also exempt. Nevertheless, the source that says the Rabbis did not rebuke Michal does imply that if a woman is elderly [i.e., post-menopausal] and we know that she is capable of watching herself [to stay clean], one should not rebuke her. And it is such a case that the Talmud has in mind there [i.e. in me shemeto, where women are said to be exempt from wearing tefillin, not categorically forbidden from doing so]. The Magen Avraham does not agree with this Olat Tamid. Magen Avraham (38:3) states: מוחין כו’ – מפני שצריכין גוף נקי ונשים אינם זריזות להזהר אבל אם היו חייבים לא היו פטורין מה”ט דהוי רמי אנפשייהו ומזדהרי כנ”ל דלא כע”ת: We protest: Since they need a clean body and women are not particularly careful with cleanliness; but if they were obligated, they would not be exempt for this reason since they would accept the mitzvah upon themselves and they would thus be conscientious. Such appears to me to be the rule, and not like the Olat Tamid. The whole thrust of the Magen Avraham is to reject the approach of the Olat Tamid) who permits women to wear tefillin when they are clean). Magen Avraham accepts that once one is not obligated to wear tefillin, one is not careful to be clean and only those obligated are careful, whereas Olat Tamid thinks cleanliness is unrelated to obligation. [2] Now consider whether one ought to rebuke a [male] slave who wishes to wear tefillin. Like a woman, he is not obligated in the mitzvah of tefillin, but yet he seems to have no practical issue with guf naki factually. If he were to don tefillin (which he is not obligated to at all) should we rebuke him? One could claim that the Rama (and the Taz for that matter) both implicitly agrees that a slave is not rebuked since only women (and not slaves) are mentioned as subject to rebuke. Pre Megadim (Mishbatzot 38:2) [3] disagrees and states: מוחין. עיין ט”ז. ומ”א [ס”ק] ג’. ומשמע עבדים אין מוחין שיכולין להזהר. וזה אינו, דגם כן אין זהירים דפטורים, וגם גריעי תו מנשים דעד א’ נאמן באיסורים וספרה לה [ויקרא טו, כח]. ועבדים בסתמן לא [נאמנים] עיין ש”ך יו”ד סימן א’ [ס”ק ב]. גם על כרחך פשיטא אין מניחין שלא יעלו אותו ליוחסין וכדומה:

We Object: See Taz. See Magen Avraham 3. And this implies that when a slave dons tefillin one does not object, since they can be careful [about cleanliness]. This is wrong, because they are not careful since they are exempt. Furthermore, slaves are worse than women [in this mitzvah] since “one witness is believed regarding ritual matters” (as it says in Lev 15:28) “she counts” but slaves are not believed; see Shach YD 1:2. One must also adopt the obvious position that slaves do not wear tefillin [even though they can keep clean] so that we should not mistake them as full . Pre Megadim makes a few claims here. While inferring that Rama and Taz hold slaves are not rebuked and may wear tefillin if they wish, Pre Megadim himself holds this is incorrect for several reasons: (1) all those exempt are rebuked according to the Pesikta, since one who is exempt is not as careful to be clean; (2) slaves are deemed less reliable than women in many Jewish law matters; (3) permitting a slave to wear tefillin might mistakenly lead people to believe he is fully Jewish. Thus, whether we should deem all exempt individuals as being always insufficiently careful about cleanliness, and therefore object to them wearing tefillin, is a dispute between Magen Avraham and Pre Megadim versus Olat Tamid. The Typographical Error in Mishnah Berurah 38:12 Now, to the heart of this short note: Mishnah Berurah is uncertain about how to resolve the question of whether a slave who dons tefillin ought to be rebuked. Since this matter is not one that normative halacha needs to resolve (as slaves no longer existed within Jewish life in the time of the Mishnah Berurah) he simply states (38:12): הנשים – עיין בפמ”ג שה”ה לענין עבדים ועיין בספר תוספות שבת שכתב בהדיא להיפך ועיין בספר תוספות ירושלים: Women: See Pre Megadim who states the same rule for slaves. See also Tosafot Shabbat who writes explicitly the opposite and see the work Tosafot Yerushalayim.[4] Several difficulties present themselves in this simple Mishnah Berurah, but I want to focus on only one: Who is this Tosafot Shabbat that the Mishnah Berurah is quoting and what does he say? Hebrewbooks.org and Otzar HaChachma data bases list a few books with that title, but none of them seem to deal at all with tefillin. While the Mishnah Berurah does in several other places quote a work by this title, the work that he quotes is always the famous work “Tosafot Shabbat” which deals with Hilchot Shabbat only or (less frequently) the similarly named work which discusses when does Shabbat begin or end? Furthermore, no discussion of tefillin or slaves is found in those works at all, as far as I can tell. None of the other works with this title are relevant either, as far as I could tell: none of them had a section dealing tefillin law. Luckily, someone pointed out to me that his version of the Mishnah Berurah has a footnote by the editors noting that the is a mistake in the typesetting of the Mishnah תוספות word Berurah. A similar correction is also noted by other new editions of the Mishnah Berurah as well — I found it in Hotzah Chadashah uMetukenet Benai Brak (5767). These editions argue that this note (12) in the Mishnah Berurah is supposed to read: הנשים – עיין בפמ”ג שה”ה לענין עבדים ועיין בספר עולת שבת שכתב בהדיא להיפך ועיין בספר תוספות ירושלים:

Women: See Pre Megadim who states the same rule for slaves. See also Olat Shabbat who writes explicitly the opposite and see the work Tosafot Yerushalayim. This makes perfect sense and completely solves the mystery. The typesetter made a mistake that is easy to understand. Since on the same line of text already contained the words “tosafot” and the work Tosafot Shabbat was widely cited in the previous volume which was printed (volume 3) whoever was typesetting the work made an error and typeset the wrong word. Olat Shabbat is another name for the work Olat Tamid (quoted above), who quite clearly, as the Mishnah Berurah notes, permits slaves to wear tefillin, since they are observant of the rules of guf naki. Olat Tamid was the name used for those sections of the book addressing daily halacha (up to chapter 240 in the Shulchan Aruch) and Olat Shabbat is the name of the same work for those remaining sections that deal with Shabbat and Festival law. Furthermore, the Mishnah Berurah uses both names at various times without following the exact correspondence to whether he is quoting from the part of the work named Olat Tamid or Olat Shabbat. For example, in Shar Hatziyun 42:23 he quotes the Olat Tamid on a matter related to tefillin law and he calls him the Olat Shabbat. The work went by two names. To summarize: While the Mishnah Berurah in 38:12 quotes a work call Tosafot Shabbat as discussing whether a slave may don tefillin, as far as can be told, no such work exits. A work named Olat Shabbat does exist which comments on Siman 38 of the Shulchan Aruch and permits a slave to don tefillin. All of this makes a case so compelling that several new and critical editions of the Mishnah Berurah have noted this must be a typesetting error in the Mishnah Berurah and so have corrected the text accordingly.[5] What the Mishnah Berurah does not note at all, but is completely clear once you look at the Olat Tamid inside – by now an obscure book that is hard to find, but which is on Hebrewbooks.org and is quoted above – is that for the same reasons that Olat Tamid contends we do not object to a slave wearing tefillin, Olat Tamid also permits a woman who is careful with guf naki (because she is post-menopausal) to wear tefillin. Furthermore, Mishnah Berurah is fully consistent with the reading of the halacha found in the Olat Tamid when he explains the Rema’s objection to women donning tefillin in his next note, stating simply and directly (38:13) that: מוחים בידן – מפני שצריכין גוף נקי ונשים אין זריזות להזהר: We protest: since they need a clean body and women are not particular to be conscientious about being careful [to be clean]. The Mishnah Berurah thus explains why women do not don tefillin by quoting only the rationale that is consistent with the Olat Tamid’s understanding of the Rama, namely: this halacha is fundamentally about cleanliness, and not necessarily obligation (which categorically excludes all women and all slaves, no matter how clean). Thus, in contrast to Pre Megadim and Magen Avraham, the Mishnah Berurah leaves out אבל אם היו חייבים לא היו פטורין מה”ט דהוי רמי“ the idea that but if they were obligated, they would not“) ”אנפשייהו ומזדהרי be exempt for reasons of cleanliness”) since that is not consistent with the Olat Tamid, and the Mishnah Berurah holds the Olat Tamid is correct about even a slave.[6] In other words, slaves should be rebuked because they are not meticulously careful to be clean independent of their lack of obligation to put on tefillin. The Typographical Error in Biur Halacha 39:3

Chapter Thirty Nine of the Shulchan Aruch addresses who can write tefillin, which is a different question than who can don them, although somewhat related. This is made clear by the comments of the Mishnah Berurah writing in the Biur Halacha in 39:3 which even more forcefully adopts the view of the Olat Shabbat. The Shulchan Aruch notes that a convert may write tefillin and the Mishnah Berurah continues in the Biur Halacha 39:3 by stating directly: כשר לכתוב תפילין – כ”ז איירי בגר צדק. ולענין גר תושב הסכימו הפמ”ג ול”ש ומחה”ש [ועוד הרבה] דפסול מטעם דהא אינו בקשירה והשע”ת[7] המציא דבר חדש דאיירי הד”מ דמכשיר בגר תושב דקיבל עליו כל המצות חוץ מאיסור נבילה וא”כ הלא ישנו בקשירה ובאמת נלענ”ד שגם זה אינו דהלא עכ”פ אינו מוזהר על הקשירה ותדע דאטו אם אשה ועבד יקבלו עליהן מצות תפילין יהיו כשרים לכתיבת תפילין ואם תדחה משום דמוחין לנשים על הנחת תפילין וכדלעיל בסימן ל”ח ז”א דכל זה רק מחמת חומרא בעלמא שחוששין להפסיקתא אבל ש”ס דילן סובר דאין מוחין ע”ז וכדאיתא שם בב”י ועוד עבדים יוכיחו דאין מוחין בהן וכמו שכתבתי לעיל במ”ב בשם התו”ש: A convert may write tefillin: All this is discussing a proper convert, but as to a ger toshav, the Pre Megadim Levushai Serad, and Machatzit Hashekel [as well as many others] all agree may not write tefillin since they are not obligated to don tefillin. Sharai Teshuva finds another novel matter here when he notes that the Darchai Moshe permits a ger toshav [to write tefillin] since he accepted all the mitzvot other than eating not kosher meat, since he is permitted to don tefillin. In truth in my opinion even this is not correct, since such a person is also not obligated in donning tefillin. And you should know that concerning even a woman and a slave who accept upon themselves to the mitzvah to don tefillin could they write tefillin?[8] And if you push this off, since we rebuke women on donning tefillin as noted in chapter 38, that is wrong, since this pushing off is only a mere stricture grounded in being fearful of the Pesikta, but our Talmud rules that one does not rebuke on this as is noted by the Bet Yosef, and even further, we do not rebuke slaves as I noted in the Mishnah Berurah there in the name of the Tosafot Shabbat. And of course, as the standard new editions of the Mishnah Berurah now note, there is a typographical error — the last words in the Mishnah Berurah should read Olat Shabbat here making it clear that the Mishnah ,ע to an ת also, changing the Berurah has a consistent preference for the approach of the Olat Shabbat-Olat Tamid over the approach of the Magen Avraham and the Pre Megadim, as a better explanation of the Rama. (The Mishnah Berurah then continues to explain why women and slaves – who can put on tefillin as a matter of tefillin law – still cannot write them.[9]) According to the Mishnah Berurah, the Rama directs rebuke of women in 38:3 for donning tefillin not as a matter of the minimal technical halacha, but only as a chumra bealma since he is of the view that the Pesikta’s formulation is inconsistent with the Bavli and thus not the formal mandatory rule of halacha ever (just like the Olat Tamid notes).[10] Furthermore, the Mishnah Berurah makes it clear here that he is ruling against the Pre Megadim on the matter of rebuking slaves who don tefillin which he left as an open dispute in 38:12. A Test Case: The Cheresh

Consider a test case: Should we rebuke acheresh (fully mentally incapacitated man) who wishes to wear tefillin, if he is competent to maintain cleanliness? This is an excellent test case. He is Jewish (like a women is), but exempt from all mitzvot, including tefillin, and he lacks the basic credibility that even a Jewish woman has to label food items as prohibited or permissible, so two of the three reasons of the Pre Megadim apply to him, mandating rebuke. For our present purposes, his “risk profile” vis-à-vis wearing tefillin thus falls in between a slave and a woman: he is riskier than a (post-menopausal) clean woman and less risky than a slave. Olat Tamid states (37:1) that since a cheresh can maintain cleanliness, he should not be rebuked for donning tefillin. The Mishnah Berurah (37:12) rules that way and he cites as precedent for this the classical work Baer Hatev, who in turn cites the classical work Olat Tamid![11] חרש המדבר ואינו שומע או שומע ואינו מדבר חייב להניח תפילין אבל אין שומע ואין מדבר אין מוחין בידו מלהניחם אם רוצה [בה”ט]: A cheresh who speak but cannot hear, or hear but cannot speak is obligated in tefillin, but one who can neither listen nor speak one does not rebuke them when they don tefillin if they wish. [Baer Hatev] Thus, from the Mishnah Berurah’s ruling regarding a cheresh, we see that he clearly rejects the view that “one is not obligated may not don tefillin since such a person will not be particularly careful to be clean.” Rather, Mishnah Berurah only cites the Pre Megadim’s view about slaves apparently in deference to the Pre Megadim’s other concern: since slaves are not full Jews, permitting them to wear tefillin might confuse others about their personal status as full-fledged Jews.[12] Otherwise, Mishnah Berurah adopts the Olat Tamid’s explanation of the Rama in this halachic area – i.e. focusing on cleanliness, and not automatically deeming exempt individuals as incapable of maintaining proper cleanliness. Conclusion

The Mishnah Berurah does not address the question of whether a carefully clean woman who wants to don tefillin may do so. Such a radical break with tradition would never be raised or considered in a completely hypothetical vacuum by the Mishnah Berurah. The Mishnah Berurah simply never discusses the matter and he is silent. How should we understand his silence? Did he think we ought to rebuke such a woman as a matter of tefillin law[13]? With all of this data in hand – most importantly, the proper text of the Mishnah Berurah – it is reasonable to conclude that the best way of interpreting the Mishnah Berurah is that he does not think that a woman who is sufficiently careful about guf naki[14] needs be rebuked – as a matter of tefillin law – if she does don tefillin. Proof to this can be found from: (1) his citation of the Olat Tamid in the case of a cheresh and a slave and (2) the Mishnah Berurah’s a mere ,חומרא בעלמא referral to the view of the Pesikta as a stricture, [15] and (3) his focus on cleanliness as the reason for rebuke of women, like the Taz and the Olat Tamid. Further proof of this is the unstated view of the Mishnah Berurah can be found from: (4) the Mishnah Berurah’s rejection of the formulation of the Magen Avraham that all those who are exempt are prohibited as a matter of tefillin law and (5) the Mishnah Berurah’s sub-silento rejection of the Gra’s view that the Pesikta and the normative Bavli both agree that women ought to be rebuked and (6) the Mishnah Berurah’s implicit rejection of the view of the Levush (and others) that while Michal bat Shaul could put on tefillin because she was unique, no one else can.[16] There is no other viable theory left other than to accept that — to the Mishnah Berurah — the proper way to understand the Rama’s rule that one should rebuke a tefillin donning woman is limited to one who either is not clean, which is the base line view of the Talmud Bavli or, as chumra be’alma, to rebuke any woman who is “not particular to be conscientious about being careful [to be clean]” as he states in 38:13. Thus, the purpose of this article is to make an intellectually honest point which hopes to contributes to reasoned discussion: those who have acknowledged the view of the Olat Tamid as permitting slaves, clean women andchereshim to don tefillin, and yet dismiss that view as supposedly rejected by all normative poskim, are mistaken, once the correct text of the Mishnah Berurah is established. To what extent this has any practical halachic application is for a different discussion. For example, there might very well be other excellent rationales outside of technical tefillin law prohibiting such conduct,[17] or one could look to the view of the Magen Avraham and Pre Megadim and object to women wearing tefillin due simply to their lack of obligation or one could note that even without the rebuke obligation, tefillin are still no better than tzitzit and our rule is that women do not wear them either as a matter of very old custom. None of this practical halacha is the focus of this paper. [18] The attached six pages are copies of the front matter and relevant pages from two modern editions of the Mishnah Berurah which note the typographical errors mentioned and correct them.

[1] There are a number of works entitled Olat Tamid in the rabbinic library and this Olat Tamid is the one that the Magen Avraham had which is by Rabbi Shmuel ben Yosef Orgler found at http://hebrewbooks.org/21386 at page 28. [2] Pre Megadim reinforces this as the correct read of the Magen Avraham in Ashel Avraham 3 where he emphasizes that one who is exempt is not careful. [3] The Pre Megadim is commenting on the Taz – as he understands the Taz to agree with the Olat Tamid here and to focus only on cleanliness and not level of exemption – and/or is inferring from Rema’s note that we object to women who wish to wear tefillin that Rema would not object to a male slave wearing tefillin. [4] Tosafot Yerushalayim cited by the Mishnah Berurah is not in chapter 38 of his work (where you would expect it) but in OC Chapter 17. Tosafot Yerushalayim adopts the reasonable view that only slaves like Tevi of Rabbi Gamliel can don tefillin, as a correspondence to the exceptional case of Michal bat Shaul. His view is that among people who are not obligated in tefillin, only exceptional individuals are sufficiently careful about cleanliness ought to don. Tosafot Yerushalyim is itself a fascinating work which attempted to incorporate the view of the Jerusalem Talmud into the normative halacha. [5] A copy of the page from the Mishnah Berurah Hotzah Chadasha uMetukenet Benai Brak 5767 can be found at the end of this paper with the correction noted on the Hagaot veTekunim 5 [6] See the next section for an explanation, [7] The corrected text of the Mishnah Berurah notes that this is the Efraim. [8] Although one could read this as a statement and not a rhetorical question, that would be a mistake as it could create a dispute between this statement and the text of the Shulchan Aruch in OC 39:1. It would also be inconsistent with other parts of the same Biur Halacha not quoted here. [9] Who can write tefillin (as opposed to who can don them) is not a topic we focus on now. [10] This Biur Halacha was pointed out to me by Rabbi Shlomo Brody while he was reviewing a prior draft of this article. [11] A reader suggested to me that maybe the Mishnah Berurah ruled one should not rebuke a cheresh only because he was aware of the fact that some of his contemporaries considered an intelligent cheresh to be fully obligated in the mitzvah. I think that is mistaken as the Mishnah Berurah is directly quoting the Baer Hatev who is directly citing the Olat Tamid, who was from the 1600’s and was not speaking about the modern “smart” cheresh. The Mishnah Berurah and Baer Hatev’s source – the Olat Tamid – clearly based this ruling on his view that one who is exempt but clean can wear tefillin. Moreover, if the Mishnah Berurah were merely showing deference here to the view that a (modern) cheresh is obligated to wear tefillin, then surely he would have strongly urged thecheresh to don tefilin – and not just written that we acquiesce to one who chooses to do so. (Note that Aruch Hashulchan argues in OC 37:4 and objects to a cheresh wearing tefillin, but only because he cannot image such a person being meticulously clean.) [12] And even that fear is ultimately rejected by the Mishnah Berurah in the Biur Halacha 39:3, as noted above. [13] What I mean by “tefillin law” is just the halacha of mochen and the like, and not the more general halachic conversation concerning change or minhag or authority, all of which are important, but not part of this article and could form independent grounds for prohibiting (or permitting) this conduct. [14] Because she is post-menopausal according to the Olat Tamid. [15] I am uncertain how exactly to translate the term chumra bealma. In their recent article, Rabbis Dov and Aryeh Frimer translate it as “mere, often unbased, stringency (humra be- alma)” which they note is one of the cases where nachat lenashim does allow such sometimes to be ignored. See Women, Kri’at haTorah and Aliyyot,” Aryeh A. Frimer and Dov I. Frimer, Tradition, 46:4 (Winter 2013), 67-238 at pages 115 to 117 and particularly note 358. [16] Reasons five and six are important to digest, in that who the Mishnah Berurah quotes or does not quote is a very telling mark of what he thinks is reasonable. Here he does not quote Gra’s approach in 38:3 precisely because he has rejected Gra’s approach of harmonizing the Pesikta and the Bavli in 39:3 by calling the Peseikta a chumra be’alma. So too, he rejects the approach of the Levush and Aruch HaShulchan of limiting the Bavli to the rare and special Michal bat Shaul since the Mishnah Berurah adopts the view of the Olat Tamid and resolves the conflict by insisting that the Pesikta is not the normative halacha. The view of the Aruch Hashulchan needs its own analysis, which I hope is forthcoming. For a more general understanding of the Mishnah Berurah, see my forthcoming work (with Rabbi Ira Bedzow) “The Codification of Jewish Law and an Introduction to the Jurisprudence of the Mishna Berura” (Academic Studies Press, 2014). [17] See for example the modern work Piskai Teshuva 38:3 who gives one such reason and the recent teshuva by Rabbi Hershel Schachter on this matter who gives many such reasons. [18] Besides these rationales which explain why the Mishnah Berurah simply does not discuss this issue, allow me to speculate in a footnote that perhaps the Mishnah Berurah does not cite the Olat Tamid on the topic of women donning tefillin at all because he rejects in the view of the Olat Tamid that menstruation is a valid concern for guf naki matters and that was the central to the holding of the Olat Tamid.