Question: I, an elderly kohen with weak legs and poor balance, walk with a cane. I walk up to duchen with a cane, stand near a wall, and lean during Birkat Kohanim (=BK). Is that valid? Can you suggest a good plan of action?

Answer: Asking your question takes bravery, as we understand that the prospect of not being able to duchen would be a great disappointment.

We will start with the strict requirements. BK must be done standing (Shulchan Aruch, Orach Chayim 128:14). The gemara (Sota 38a) learns this from the Torah’s connecting of the kohen’s beracha to his service in the Mikdash, which must be done standing. Because standing is a full requirement, if one leans on something during BK, it is invalid (Mishna Berura 128:51). However, one may lean a little, as long as removing the thing he is leaning on would not make him fall (see Zevachim 24a; Mishna Berura 94:22). It is also absolutely required for kohanim to lift their hands in the subscribed manner for BK (Shulchan Aruch ibid.; Sota 38a). This makes balance more difficult. You thus must figure out if you can use the wall for balance/security and “pass this test.”

Realize that there are legitimate corners to cut to help you qualify. The Mishna Berura (128:52) accepts the Ktav Sofer’s (OC 13) idea that the kohen needs to lift his hands only when he pronounces each individual word; he can rest in between. The same thing should be true regarding standing – one may lean as he likes in between pronouncing the words (Even Yisrael VII:10; Dirshu 128:70).

Let us rule out another question. A kohen may not duchen with blemishes on visible parts of the body because they distract the congregation’s attention (Shulchan Aruch ibid. 30). Arguably, people could view your cane as distracting. However, this is not a problem. First, this is a questionable assumption. Second, if people are used to a distraction, e.g., the situation has existed for 30 days, it is no longer distracting (ibid.). Furthermore, since the cane is not in your hand during BK, it is not a halachic issue.

We did not find discussion on the presumably most physically difficult part of the process – turning around during the beracha, which kohanim do with the hands already up. We will share two good solutions for this challenge, after discussing the practice of turning around. The most important parts of davening are done facing the aron kodesh, and it is improper, without a good reason, to stand with one’s back to it. However, Halacha made BK, at which the kohanim address the congregation, an exception (see Sota 40a). However, the kohanim turn to the congregation only when they need to, right before BK. The matter of timing of turning around and raising the hands is not intrinsic to BK, unlike the above matters. In fact, there is a machloket whether to turn around before the beracha (… asher kid’shanu … levarech …) or after it, and the present minhag is to turn in the middle of the beracha (see Aruch Hashulchan, OC 128:20). There is also a machloket whether to lift the hands before or after the beracha (see opinions in Va’ani Avarchem 19:2).

Given the fact that these questions of timing are just a matter of minhag, in your situation you can do what is physically best for you (you do not need to worry that other kohanim will resent your acting differently). Specifically, you can turn with everyone else, but holding your cane, and not raise your hands until you finish turning around and making the beracha. You can also turn, with the cane and at more leisure, before the beracha, and then put down the cane and raise your hands sometime before the BK itself.

In summary, you can appraise whether you can stand well enough at the critical times and figure out how to use legitimate corner cutters. You must make sure you are not endangering yourself concerning a dangerous fall. The wall may be a good solution, but something like a heavy shtender in front of you may be more effective and safer. Do not be embarrassed to ask for help to set things up best. Your lifetime of past and future berachot gives you rights!

לעילוי נשמת יואל אפרים בן אברהם עוזיאל זלצמן ז”ל

Question: I am careful to finish Mincha by shki’ah (sunset), but one day I remembered a few minutes after it, that I had not davened. I decided to daven then with the following condition – if it was still time for Mincha, it should count, and if it was too late, it should be a tefillat nedava (voluntary prayer). Was that correct? Also, what was I supposed to do when I went to daven Ma’ariv, considering that I am unsure if I fulfilled Mincha?

Answer: Indeed, one should daven Mincha by shki’ah. Although the Rama (Orach Chayim 233:1) says that those who daven Mincha after plag hamincha (now widely practiced) have until [close to?] tzeit hakochavim, the Mishna Berura (233:14) argues that one must daven by shki’ah. However, at least for several minutes after sunset, it is possible that b’di’eved one may still daven Mincha (ibid.).

You seem aware of the above and do not want to rely on the opinions (many do for at least several minutes) that when one must daven Mincha after shki’ah, he may assume it works. Your idea of dealing with the doubt contains positive points. Let us analyze it and determine how you should have proceeded.

Classical sources discuss tefillat nedava in two cases – #1. One who is unsure if he already davened may do Shemoneh Esrei (=SE) as a nedava; #2. One who wants to daven a second time and adds new elements to SE (Shulchan Aruch, OC 107:1, based on Berachot 21a). Your idea relates to #1, with the doubt being not whether the tefilla is necessary but whether it works as desired (for Mincha). There is no clear precedent for a tefillat nedava at a time that is not viable for tefilla, but your assumption (the Be’ur Halacha to 233:1 concurs), is that if it is too late for Mincha, it must be possible to daven Ma’ariv. Your nedava faces another challenge. If your tefilla did not work for Mincha, it is nedava of Ma’ariv … before you do the obligated Ma’ariv. This might be possible (see Ohalei Shimon, Tefilla 20), but it is difficult to determine if all agree with this possibility.

We now follow your system to Ma’ariv. If your tefilla did not count for Mincha, you needed SE at Ma’ariv twice, the second as tashlumin (makeup) of Mincha (Shulchan Aruch, OC 108:2), for a total of three SEs that evening. On the other hand, you could not be sure the third one is necessary, because if the first counted for Mincha, no tashlumin was necessary. Therefore, the third tefilla would also need to be to be done as a tefillat nedava (a variation of scenario #1 above).

However, poskim (see Ishei Yisrael 27:6) do not embrace your system of dealing with the safek, but that of the Be’ur Halacha (ibid.). He says that post-ski’ah SE should be on condition that if it does not work for obligatory Mincha, it should be for obligatory Ma’ariv. If the first was for Ma’ariv, then you missed Mincha and the later SE (which will be preceded by Kri’at Shema and its berachot) will be tashlumin of Mincha.

The Be’ur Halacha’s system has weak points if your first tefilla did not fulfill Mincha. SE of tashlumin should be directly after the SE of the present tefilla (Mishna Berura 108:15). In this case, if the SE after shki’ah ended up being for Ma’ariv, then the tashlumin, done with the Ma’ariv of everyone else, is likely to be several minutes and perhaps much more after the first SE. However, when need be, there can be a break, as long as it is within the timeframe of Ma’ariv (ibid.). Also, Kri’at Shema and its berachot will turn out to be (perhaps, significantly) after the main SE of Ma’ariv (the first tefilla). Once again, while not ideal (Shulchan Aruch, OC 236:2), it is permitted when there is need (ibid. 3).

The Be’ur Halacha avoids two weaknesses in your system that exist even if, as is likely, your first tefilla worked for Mincha. 1) You need three SEs instead of two; 2) We try to avoid tefillat nedava, which should ideally be done only if one concentrates throughout SE (Shulchan Aruch, OC 107:4).

While we can further debate the merits of each system, we expect that next time you will follow the Be’ur Halacha.

לעילוי נשמת יואל אפרים בן אברהם עוזיאל זלצמן ז”ל

Question: We have quite old grapevines, with low-quality, often infested grapes, which fall and make a mess; it is not worth our while to keep them. May we stop watering them so they will die and we can get rid of them?

Answer: According to our research, your idea is unlikely to bring the results you expect. Namely, mature grapevines generally survive without irrigation (Hashem gave trees great survival “skills”), although lack of water is among conditions that will decrease yield. Possibly, if you learn how to improve your care for the vines, you can still enjoy the grapes and want to keep them. However, we are not experts, and in any case, “to each his own.” We will investigate your question, first according to your assumptions, and then deal with practical halachic advice.

While it is forbidden to be destructive with anything of value (bal tashchit), destroying a fruit tree (including a grapevine) is more severe and forbidden more broadly than other objects (see Bava Kama 91b; Rambam, Melachim 6:8). The Rambam (ibid., based on Sifrei, Devarim 203) rules that it is forbidden not only to cut down a fruit tree but even to divert water flowing to it in order to dry it up. There are different opinions as to how severe a sin it is to divert the water (see Etz Hasadeh 1:4).

What you are asking about is more lenient than the Rambam’s case, as the Rambam discusses a case where the damager performs an action, albeit one which brings on the damages indirectly. You ask about refraining from doing something that is critical for the tree’s survival. On the other hand, you are refraining from something basic and with intention to kill the tree.

Contemporary poskim cite on the withholding of water with the intention to dry up a tree from a compilation of the Chazon Ish on the Rambam. He writes (on Rambam ibid.) that it is permitted to withhold water. Since the Torah forbids destruction, lack of action, by not providing, cannot be included. The Chazon Ish claims that this is compelling because the Torah forbids destruction equally if done by the owner or someone else, and it is inconceivable that someone other than the owner would be required to provide water. Shevet Halevi (VI:112) claims that it is common practice for those who want to cut down a tree to first kill it by withholding water. We note, though, that the Chazon Ish says that it is still objectionable (not bal tashchit), to withhold water if there is no need for it.

Let us consider, though, the likelihood that withholding the water will not quickly or reliably kill the tree but will reduce the yield further. The gemara (Bava Kama 91b) gives minimum yields of dates and olives, under which it is likely permitted to cut down the trees. Grapes are not listed, and there are different opinions about whether there is a minimum amount and what it is, and whether it is fully permitted in such a case (see Rosh, Bava Kama 8:15; Etz Hasadeh 3:(11)). In general, when it is unclear whether a tree counts as a viable fruit tree, we are stringent (Shut Chatam Sofer, Yoreh Deah 102). More fundamentally, if a tree has the potential to be viable and is not presently because of neglect or mistakes, it likely cannot be cut down due to its potential (see Etz Hasadeh 3:5). Therefore, for your system to work, the tree would have to clearly reach the point of no return, possibly when it is dead.

We have discussed elsewhere (Living the Halachic Process I, H-10; ibid. VI, G-13) when need (for space, damage from tree) permits cutting down a tree. You do not sound close to that, although it might be enough for the Chazon Ish’s leniency for killing it by not watering. Additionally, since lack of watering does not generally kill a mature vine, how could it be forbidden for you to withhold the water, especially if watering requires you to spend time and money on vines from which you do not get benefit?

In summary, you are not required to water the vines but due to botanical and halachic reasons, it is unlikely that this will enable you to uproot them anytime soon.

לעילוי נשמת יואל אפרים בן אברהם עוזיאל זלצמן ז”ל

Question: My neighbor has muscle atrophy and can no longer put up his sukka or assemble his arba’a minim. I offered him to do them for him, but he does not like receiving favors and prefers teaching his non-Jewish worker to do them for him. May a non-Jew do these things? Should I take “no” as an answer?

Answer: Regarding sukka, it seems to be an explicit gemara (Sukka 8b; see Shulchan Aruch, Orach Chayim 635:1) that a non-Jew can make a kosher sukka as long as he did so to provide shade. The Rama (OC 649:1) confirms that the same is true for tying up the hadasim and aravot with the lulav. However, it is somewhat more complicated. The Magen Avraham (649:3) infers from the Rama’s wording that such a sukka or lulav is only kosher after the fact, but that, l’chatchila, a non-Jew should not do it.

The Magen Avraham traces stringency to the halacha for tefillin and tzitzit. The gemara (Gittin 45b) derives from the proximity of “you shall tie” and “you shall write” (Devarim 6, regarding tefillin and mezuza, respectively) that only those who are connected to the mitzva of tefillin can write sacred scrolls. Tosafot (ad loc.) cites Rabbeinu Tam as using this source to disallow a woman tying on tzitzit or assembling arba’a minim because they are exempt from these mitzvot. The Magen Avraham accepts Rabbeinu Tam, but only partially. Rabbeinu Tam seems to disqualify people even b’dieved, whereas the Magen Avraham, working within the Rama, who fundamentally accepts non-Jews for sukka and lulav, recommends avoiding them l’chatchila.

Tosafot, for their part, reject Rabbeinu Tam’s extension of the disqualification to women, as even non-Jews are disqualified even for tzitzit only due to a pasuk, as well as his extension to other mitzvot, based on the gemara that allows a sukka made by a non-Jew. Almost all poskim (see Be’ur Halacha to 14:1; Chochmat Shlomo (Kluger) ad loc.) fundamentally reject Rabbeinu Tam/Magen Avraham. However, due to the weight of these great authorities, many poskim recommend avoiding using a non-Jew for sukka/arba’a minim (ibid.; Mishna Berura 649:14).

If the disqualification from writing holy texts does not extend to other mitzvot, then why does the Rama (14:1; the Shulchan Aruch ad loc. is lenient) cite two opinions regarding women’s ability to tie tzitzit and prefer avoiding it? Acharonim distinguish between the mitzvot. The Be’ur Halacha (to 14:1) mentions those who disqualify women from tzitzit based on a pasuk. The Chatam Sofer (Shut, Yoreh Deah 271) distinguishes that the fact the Torah describes tying tzitzit as its own positive mitzva explains requiring someone to whom the mitzva of tzitzit is incumbent. In contrast, building a sukka is just a hechsher (preparation for a) mitzva, and thus anyone can do it. Chochmat Shlomo’s (ibid.) distinction is that tzitzit must be tied on lishma (for the purpose of the mitzva), but since sukka does not require it (just that it be done for shade), it does not need to be done by one who is obligated in the mitzva.

The indications regarding lulav are similar to those for sukka (see Rama OC 649:1 and Mishna Berura 649:14(, with two notable differences. On one hand, there is no gemara saying arba’a minim assembled by a non-Jew is kosher. On the other hand, the whole need for the binding together of the lulav, hadasim, and aravot is of a low or possibly technical level (see Sukka 33a; Shulchan Aruch, OC 651:1; development of this point is beyond our scope).

Now for our recommendations. If your neighbor would ask us, we might tell him that since the only part of the sukka that there is a question about is the s’chach, he could have his worker build the frame and walls and let you happily put up the s’chach (or even just lift it up – see Shulchan Aruch, OC 626:2). Similarly, he could let you assemble the arba’a minim without needing to teach you. However, since it sounds (it may be worth checking better) like he does not want you to do it and the case for chumra is quite tenuous and only l’chatchila, we recommend to leave things as they are.

לעילוי נשמת יואל אפרים בן אברהם עוזיאל זלצמן ז”ל

Question: I hope to buy a new shofar for Rosh Hashana. Can I make Shehecheyanu on it? If so, as the ba’al tokeiah, can that count for the Shehecheyanu of blowing the shofar on the second day of Rosh Hashana? Is this affected by whether I use it on the first day or to practice before Rosh Hashana?

Answer: Among the times we recite Shehecheyanu are for performing a mitzva that comes up cyclically (including shofar) and for acquiring a significant object that makes one happy (Shulchan Aruch, Orach Chayim 223:4; Mishna Berura 223:13). It is a machloket whether to make Shehecheyanu on an object whose importance is only because of the mitzva, as mitzvot are not considered to have worldly benefit (ibid.). The Shulchan Aruch (OC 22:1) says that one makes Shehecheyanu on the garment of tzitzit because it is clothes with importance, but not on tefillin. One can ask whether we look at a shofar as a musical instrument, which is important to a buyer like you (albeit because of the mitzva), like tzitzit, or whether we view it only as an article of mitzva, like tefillin, in which case there is a machloket and one would refrain out of doubt. Another factor is that many (see Piskei Teshuvot 223:6), especially Sephardim (see Yalkut Yosef, OC 223:3), have the minhag not to make Shehecheyanu on objects other than fruit and clothes. In cases of safek, poskim often recommend reciting Shehecheyanu by connecting first use of the object in question to Shehecheyanu on something that definitely requires it (Be’ur Halacha 22:1). This likely applies to shofar, and for you, when blowing on the first day could be a great time (see below).

Regarding reciting Shehecheyanu specifically on the second day, the situation differs for Ashkenazim and Sephardim. Sephardim do not recite Shehecheyanu on the second day if it was recited on the first (Shulchan Aruch, OC 600:3), and there is no minhag to “create” a need for it.

Ashkenazim always recite Shehecheyanu on the second day’s blowing (Rama ad loc.) even without help from a new object. However, some Acharonim (see Mishna Berura 600:7) express a preference for the ba’al tokeiah to wear new clothing on the second day to strengthen the beracha’s justification, like is done at Kiddush. If you were not going to be machmir, the good chance that the new shofar warrants Shehecheyanu only helps. However, if you use the shofar instead of the new clothes you would have worn, then there is a chance you are weakening the case for Shehecheyanu. However, concern for that is somewhat extreme, considering the Rama’s ruling and the good chance that your excitement over a new shofar (specifically if you do not often buy new ones) warrants Shehecheyanu.

The final question is your point about the shofar being used before. The Rama regarding Shehecheyanu on a tallit (22:1) says that if it is not recited when attaching the tzitzit, it should be recited during the first wearing. While some Acharonim claim that it does not have to be the first wearing (see Be’ur Halacha ad loc.), contemporary poskim generally agree that one can make Shehecheyanu on a new garment as long as he has not removed it, but he cannot do so for a second wearing (see Mishneh Halachot VI:42; V’zot Haberacha p. 167). By extension, if you use it on the first day, it is no longer new enough for Shehecheyanu on the second day. (One could also ask about the propriety of using it on the first day, when Shehecheyanu is said due to the mitzva, and having in mind that it should not also go on the shofar.) If you will not use the new shofar on the first day but use it for practice during Elul, it is logical to distinguish between the type of practice usage. Just practicing at home a few times to check the alignment of the shofar and the lips is like trying on a garment for size or alterations, which does not preclude Shehecheyanu for the first real wearing (V’zot Haberacha ibid.). However, using the shofar in shul at the end of Shacharit or for extensive practice, should preclude Shehecheyanu thereafter.

לעילוי נשמת יואל אפרים בן אברהם עוזיאל זלצמן ז”ל

Question: I find it very difficult to concentrate at my shul during chazarat hashatz, as some congregants talk, which disrupts my tefilla and the service’s sanctity. The Shulchan Aruch (Orach Chayim 124:7) requires the congregation to be attentive during chazarat hashatz and forbids talking. I have approached the gabbaim about this issue, but they have been unwilling to act. Last week, out of frustration, I shushed someone who was talking, but this caused tension in the shul and some complained to me. Was my response appropriate? What should I do in the future? (Upon inquiry, the querier said that the shul has a rabbi, with whom he discussed the matter years ago, and the rabbi did not do much about it. Besides this issue, he is satisfied with the values and actions of the shul and its membership.)

Answer: Indeed, the Shulchan Aruch (Orach Chaim 124:7) quotes and rules like the Orchot Chayim, who disparages those who speak idle matters during chazarat hashatz. Furthermore, it is one of the few times that the Shulchan Aruch directs observers of a wrongdoing to scold the perpetrator. So, at first glance, you could not be more right.

Let us briefly put things in perspective. Chazarat hashatz is far from the most severe time to speak (see LTHP III, A-10); the critical thing is to have the nine answering the chazan for all the brachot (Shulchan Aruch, ibid. 4). There is a machloket about—when the quorum is clearly met—whether others can learn Torah (see Mishna Berura 124:17). On the other hand, it is disgraceful if, while the tzibbur stands before Hashem, members thereof are talking freely. This is both disruptive to people like you and a chillul Hashem, including in comparison to other religions’ houses of prayer (see Aruch Hashulchan, Orach Chaim 124:12). Perhaps, because of the unseemliness or the tendency of our nation to slip into bad habits of such talking that the poskim tried to nip the problem in the bud with strong language and action.

Classic tochacha (rebuke) is done to change the actions of one who sinned knowingly. Although the mitzvah exists nowadays, most follow the approach that one should not rebuke when it is not expected to be heeded, and, to the contrary, cause a negative reaction (see Yevamot 65a; see Amud Hay’mini, siman 10; regarding feared severe reactions, see Minchat Shlomo I:35). In most of today’s Orthodox shuls, where people basically understand that they should not be talking, there is little concern of causing hatred of religion. However, as you witnessed, rebuke still causes friction, which should be avoided when it provides no gain.

There is less chance that tochacha will be successful when many people are in the wrong together. Psychologically, they may feel that if talking was a real problem, not so many good people would be doing it. Also, the rebuker becomes a “public enemy,” i.e., easier to dismiss and criticize. Indeed, we find in several poskim resignation about the ability to “take on” those who talk during chazarat hashatz (Aruch Hashulchan ibid.; Shevet Halevi X:13).

It is not always a question of if to correct someone but when, how and by whom it should be done. Consider the following application (see Rashi, Devarim 1:3) regarding timing. Yaakov, Moshe, Yehoshua and Shmuel all waited until close to their deaths to rebuke their constituencies, out of concern that earlier rebuke might have caused them to change allegiances in favor of a path of evil. The same is true regarding who should be rebuking and how. The community leaders—especially the rabbi—are the ones who should be in charge of decisions and efforts.

Therefore, we recommend discussing the matter again with the shul’s rabbi, who should have his finger on the pulse more than anyone else. His not taking a strong stand in the past certainly does not mean that he does not care. He is likely to request that you not make waves at all. He may give you some guidelines on how, when and to whom to express your dissatisfaction with the talking. While it is sad to have to curb your correct emotions, this too, is part of serving Hashem.

לעילוי נשמת יואל אפרים בן אברהם עוזיאל זלצמן ז”ל

Question: At our pre-Shacharit Selichot during Elul, do we omit Tachanun if a chatan or a principal to a brit mila is present, as we omit it during Shacharit?

Answer: The Shulchan Aruch (Orach Chayim 131:4) rules to omit Tachanun in the “house of a chatan,” a shul that will host a brit that day, and a shul which a chatan is attending. While the Rama (ad loc.) says that only a chatan on his wedding day pushes off Tachanun, Acharonim rule that it applies throughout the week of Sheva Berachot (Mishna Berura 131:26), which is the minhag. The minhag is also to push off Tachanun if the father, the planned mohel, or the sandek of a baby on the day of his brit is davening there (ibid. 22). The idea is that the simcha that the tzibbur absorbs from these people is incongruous with Tachanun, as we find on happy days throughout the year. While it is not fundamentally severe to say Tachanun anyway, we have no reason not to follow the poskim’s instructions.

There is more than one reason not to push off Tachanun in this way at Selichot. One applies to the simcha of brit if the Selichot finish before daybreak. As opposed to the chatan, whose halachic status of simcha lasts throughout the entire time period, those related to the brit do not have a formal status. Rather, the proximity of the important mitzva of brit conveys through them an atmosphere of joy that precludes Tachanun. The Pitchei Teshuva ((Isserlin) 581:1) is among those who posit that if they get up to Tachanun when it is too early for a brit mila, Tachanun should be recited. He is unsure what to do between alot hashachar and netz hachama, when the Torah-level mitzva of mila has begun but the Rabbis required to wait until sunrise (Megilla 20a). Machazeh Avraham (OC I:154) says that since mila at that time is valid b’di’eved, Tachanun is omitted.

B’tzel Hachochma (IV:146) sees the exemption as applying pre-daytime even though brit mila must be performed during daytime. He bases this is on the fact that the baby’s status of requiring brit mila exists from the beginning of the baby’s eighth day, i.e., from the previous night. Arguably, the baby’s halachic status is less relevant than the fact that people have awoken for the day on which the brit will take place. It is unclear if according to B’tzel Hachochma, we would omit Tachanun at a late-night Selichot when the brit will be the next morning.

Shevet Halevi (IV:54) succinctly presents a broader reason not to skip Tachanun for a brit or a chatan, upon which we will expand. Unquestionably, we do not waive the entire Selichot due to a chatan or a brit. He argues, then, that the role of Tachanun in Selichot is not as a relative “add-on,” like it is in during regular tefilla, which sometimes is said and sometimes not (e.g., Shabbat, major and minor chagim, Ma’ariv). Rather, Tachanun is part and parcel, in terms of structure and content, of the fabric of Selichot. Therefore, given we are doing Selichot, we cannot allow ourselves nor will we gain much by omitting Tachanun. Some point out that similarly while Erev Rosh Hashana is too festive to recite Tachanun in Shacharit, we recite it in Selichot.

One can argue whether this viewpoint fits well with the following general approach to Selichot, championed by Rav Soloveitchik (see Batei Yosef 581:2-3). Selichot of Elul and Tishrei have a semi-status of an independent tefilla, introduced with Ashrei, ending with Kaddish Titkabel, and including Tachanun. One can claim that Tachanun has a similar role in Selichot as in standard tefillot, so it can be omitted due to simcha. However, there is stronger logic to say that we lack precedent to amend the internal structure of Selichot, and also that the moods of Selichot and Tachanun are too similar to do one and not the other.

Both practical approaches have serious proponents (see opinions in B’tzel Hachochma ibid.), and each shul’s minhag is fully acceptable. Some communities have a preference to make Selichot short, while some communities prefer consistency; factoring in these preferences is also legitimate.

לעילוי נשמת יואל אפרים בן אברהם עוזיאל זלצמן ז”ל

Question: A friend of mine splits his time between apartments he owns in two cities. He says that he does not charge rent to anyone who stays in the apartment he is not using because Pirkei Avot (5:10) says that one who subscribes to sheli sheli (mine is mine) employs middat (attribute of) S’dom. Is there a counterargument to allow charging rent?

Answer: We believe the counterargument is correct.

Pirkei Avot actually cites two opinions, and the main one is that if one realizes that “yours is yours,” even if he treats “his as his,” employs an “average approach.” Furthermore, the mishna does not discuss specific actions but an approach to life. If someone is often forthcoming with his property, he is not following “sheli sheli” even if he asks money to use some of his things. It is wonderful for your friend to emulate Avraham Avinu and be consistently generous, but failing to reach that level does not put one in the opposite camp.

Is one required to allow to borrow his property (for free)? In five contexts in Shas, at least one opinion prescribes forcing Reuven to cede to Shimon a financial right in a way that does not hurt Reuven and thereby avoid middat S’dom. None of those cases refers to lending one’s property to someone else.

Consider the possibility that one is always required to let people use his things for free. Are the halachic discussions of rentals only for sinners? Realize that this would cancel large elements of healthy markets. What incentive would one who can afford more property than he needs have to buy and rent out property to one who can only afford a rental?

Undoubtedly, then, one who wants to be a landlord may buy property in order to rent it out. It is also obvious that if he bought it for secondary usage without a plan to rent but then decides that he wants rental income, he can turn it into rental property. The question is only if he does not plan to use it on any regular basis for rental, and the opportunity arises to allow someone to use it on a one-time basis. Here, there is logic to say that if he is not looking to use it for profit, why not be altruistic and give it for free?

The argument for no pay is bolstered by the sugya of zeh neheneh v’zeh lo chaser (Bava Kama 20a – 21a), regarding whether when Shimon already lived in Reuven’s property without permission, he must pay for that usage. The two pertinent variables are whether Shimon was otherwise slated to rent living quarters, in which case he benefited from Reuven, and whether Reuven is in the practice of renting out his property, so that he loses if Shimon lived there for free. We rule that if Reuven did not lose, Shimon is exempt even if he benefitted (Shulchan Aruch, Choshen Mishpat 363:6).

Does the fact that Shimon does not have to pay, because Reuven did not lose, mean that Reuven must permit free usage if asked for permission in the first place? Tosafot (ibid. 20b) says that the person has a right to refuse use of his property; it is not considered middat S’dom (see Noda B’yehuda II, CM 24). The Rama (CM 363:6) rules that as long as one can rent it out if he wants to, he may he charge for it. In contrast, if the possibility of rental does not exist, he cannot demand pay, as it would be considered middat S’dom.

Note also that the possibility of forcing sharing due to middat S’dom could exist only when lending causes no loss of any sort (see Pitchei Choshen, Geneiva 8:(1)). Regarding use of one’s apartment, there could be many factors of “loss.” We will mention a few out of many possibilities: concern that Shimon’s kids might damage it; Reuven may be inconvenienced making sure the place is tidy for Shimon; Reuven’s privacy could be compromised. If Reuven can refuse, he can also say that he is willing, but only if payment makes the danger/trouble worth his while.

While we covered only a small fraction of possible scenarios, it would be rare that someone with an extra apartment would be required to allow others to use it, or if he allowed it, forbidden to take money for the usage.

לעילוי נשמת יואל אפרים בן אברהם עוזיאל זלצמן ז”ל

Question: I want to bring my mezuzot to a sofer for a periodic check. Should I try to get replacement mezuzot until they return?

Answer: The argument to have them – Mezuza is a Torah-level obligatory mitzva for one living in a standard house, applying as long as he lives there. Therefore, presumably one who is capable of fulfilling the mitzva without an interruption of hours or days (while it is at the sofer) should do so. There is even an opinion that if one’s mezuza falls on Shabbat, if he can spend the rest of the day somewhere else, he should do so (see discussion in Pitchei Teshuva, Yoreh Deah 285:1).

In practice – There is no need. One strong indication not to require replacement mezuzot is that since Halacha requires checking every few years (Yoma 11a) and classical poskim do not talk about replacements, it must not be necessary. This is bolstered by accounts of great rabbis who did not seek replacements (see Revevot Ephraim V:548 about Rav Moshe Feinstein, albeit apparently regarding a shorter check at home). One can suggest a proof by means of “reduction to absurdity.” If one may not be without mezuza for hours/days, then it should not be permitted even for seconds (where is the cutoff point!?), which would require you to put one up exactly as you remove the one to be checked, which does not seem plausible. One could deflect this by saying that the Torah requires it to be done close to right away, or perhaps that it is not prohibited to be without it, but one who can have mezuzot all the time is expected to do so in a normal amount of time.

There are a couple of explanations why one need not be concerned. Arguably, the mitzva is “for the life of living there,” so missing hours every few years for a good reason is considered a 100% fulfillment of the mitzva. After all, many understand that tefillin is a mitzva all day (see Be’ur Halacha to 37:1), and yet we suffice, for good reasons, with wearing them during Shacharit. We seem to be doing better than that for mezuzot even without replacements during checking.

Another possibility (see discussion in Shevet Hakehati I:273) is that there is a special dispensation made for the purpose of checking mezuzot, which is, after all, a halachic requirement (see Shulchan Aruch, YD 291:1). Perhaps we can explain that since it is not practical to expect everyone to have replacement mezuza, the practice of checking includes a dispensation from mezuza as long as is necessary for the checking. Some possible differences between approaches are: how fast one must act once the sofer has completed his work (see Rivevot Ephrayim ibid., who thinks one should act promptly); order of action if the return of the mezuzot coincides with another mitzva (ibid.); whether it is a good thing to check the mezuzot more than Halacha requires (see Shevet Hakehati ibid.) or to do a check that takes longer.

Is there at least a voluntary preference to use replacement mezuzot? Although ostensibly “Why not?” there are a few drawbacks. Shevet Hakehati (ibid.) references a precedent regarding the laws of checking mezuzot that when we make it difficult to check, people push it off (see Rashi, Yoma 11a). We can add that it complicates the berachot situation. In Living the Halachic Process I:G-5, we discuss the machloket about whether to make a beracha upon returning the mezuzot after the check. If you put back different ones, or use replacements, it likely calls for berachot because berachot are impacted by the mezuza used (see Chovat Hadar 11:14). However, if one is exempt from having mezuzot during the check, there is an additional question whether a beracha is called for when putting up replacements (see Sha’ar Hatziyun 475:39). There is always the general question about how good an idea it is to act stringently when it is clearly not required (beyond our present scope).

Therefore, our recommendation is just to do what almost everyone does – not use replacement mezuzot. Exceptions can be when there will be a delay of several days or if the house will be left with no mezuzot.

לעילוי נשמת יואל אפרים בן אברהם עוזיאל זלצמן ז”ל

[Every few years, we re-issue our discussion on the proper position of tefillin shel rosh. Some people are concerned that the shel rosh is not well centered, which is rarely a problem and do not realize that tefillin extending too far forward is far more likely to be a real problem. In Living the Halachic Process, I:G-1, we develop the halacha that the end of the tefillin must not go beyond the roots of the hair of the hairline.

Upon visiting different shuls, from various elements of society, it pains me to see many fine Jews who are definitely donning their tefillin wrong and many others about whom it is hard to tell, especially when they have receding hairlines. This being said, I sense an improvement over the years, but still even some learned people get it wrong. Presumably, then, they are having problems applying the halacha, not realizing, especially after their hairline receded, where the cutoff point is. We will focus here on tricks to figure this out.]

Explanation: Firstly, an adult who has not adjusted his tefillin shel rosh’s knot in several years almost certainly needs an adjustment. Tefillin straps stretch slowly as we apply pressure to them (some more than others) when fastening the tefillin on our head. If one’s hairline has not receded, he can easily check (see above).

Now, a little review of the anatomy of a normal human head. The skull is highest towards the back of the head; it then gradually slopes down. Near the front of the head, the slope increases, and then turns into a “cliff” (i.e., the forehead). The hairline ends at the end of the gradual or in the midst of the increased slope. No hair (except eyebrows) is rooted in the forehead.

Based on the above, the following are signs of misplaced tefillin. If the end of the tefillin looks like it is “hanging off a cliff,” it is certainly much too far forward, as a line drawn down from the end of the tefillin would hit the forehead or even the nose. Because of the increased slope, there may be a little space between the bottom of the tefillin and the head. However, if there is too much room (i.e., a finger fits in comfortably), it is very likely not in the right place.

Another sign is the tefillin’s angle. The angle is determined primarily by where the tefillin are fastened to the head by the straps – at the back of the tefillin. Generally, tefillin in the right place will be upright with only a slight downward slant. If the tefillin has a serious downward-facing angle, it is generally (unless one has a rounder head than most) too far forward, so that its rear is where its forward part should be (on the steeper slope). Thus the tefillin’s front will be too far forward, unless the tefillin are very small.

A final sign is the kippa. With average size kippot and tefillin, there should be little or no room between the two. One with a particularly large kippa or who wears it more forward than most will have to move the kippa back.

When I look around many of the shuls I regularly daven in or visit, I see many too many people with apparent (or definite) problems in this regard. Among the older generation, I would estimate that the problems are in well above 50% of the people. As I HATE correcting people (and most hate being corrected), I am torn as to when the rectifiable problem is clear enough to halachically/morally require me to do the uncomfortable. The following limud zechut decreases the problem. Most people put the tefillin at a certain position and push it forward in the process of fastening. Thus, some of those who keep the tefillin too far forward had it in the right place for a few moments after the beracha (so that it is not l’vatala) before the fastening was complete, and thereby may have fulfilled the mitzva for that short time.

More people should learn how to shorten the circumference of the head strap, which is necessary for the tefillin to stay in the right place. You are invited to visit me or ask a sofer. It may be easier to Google search: “youtube tefillin head adjust.” Then, you can help yourself and your friends.

לעילוי נשמת יואל אפרים בן אברהם עוזיאל זלצמן ז”ל